REGULATING ENVIRONMENTAL ASPECTS OF INTERNATIONAL TRADE UNDER GATT- WTO

REGULATING ENVIRONMENTAL ASPECTS OF INTERNATIONAL

TRADE UNDER GATT- WTO

Introduction

Environmental issues are not stand-alone issues, but are always related to various issues of

life, even life between countries or issues of relations between countries.Among them,

environmental aspects are also seen in international trade relations. Therefore, the provisions

of international trade law such as GATT (General Agreement on Tariff and Trade) always

pay attention to environmental aspects in international trade.

In the current era of globalization, international trade is a very important issue, in

addition to having the potential to increase national and international prosperity, it is also a

force that can be used as a weapon beyond military power. The emergence of international

trade blocs is a form of international cooperation whose benefits go beyond military

competition and territorial competition.

The Bretton World Institution, a step taken by countries in the formation of the GATT.

Where in The Geneva Round agreed together to eliminate and reduce barriers to international

trade, both in the form of tariff and non-tariff barriers. This is in line with the objectives of

international trade law. The international community's awareness of every activity carried out

by the State often overlooks the environmental impact that has a major impact on developing

and poor countries, some of which still have a lot of natural resources, but this exploitation

treatment has a major impact on future generations.

Economic development carried out by each country in its development, only pays

attention to the needs of mankind itself, humans are the main subject of development while

natural resources and the environment and their ecosystems are used as objects of human

development. As a result, environmental damage and pollution occur almost everywhere in

the world.

The international community's awareness of the environment gave birth to a sense of

responsibility (acceptance of responsibility), which together cooperate to protect and improve

the environment (common-effort).2 In an effort to improve the environment due to

international trade, based on the 1972 Stockholm Declaration. This declaration contains 26

principles of development, where each country is expected to carry out development in order

to improve the standard of living of today's generation and future generations. This concept is

called Sustainable Development, which later became the principle of sustainable

development. Based on the description above, the author is interested in researching and

writing the problem into a scientific work with the title Environmental Aspect Regulation in

International Trade based on GATT-WTO.

Discussion and Analysis

The discussion and analysis in the article aims to answer the problem formulation and

research questions, show how the findings were obtained, explain the meaning of the research

results, how the research results can solve problems and the possibility of development.

International Environmental Legal Arrangements

Classical international environmental law grows and develops through international

customs whose legal rules are scattered in various bilateral treaties. The 1972 Stockholm

Declaration is considered the policy framework of international environmental law that laid

the foundations and basics of environmental management regulation. Twenty years later the

concept of environmentally sound management was integrated with development activities

whose legal principles became the basis and/or theme of the 1992 Rio de Jeneiro Declaration.

The agreement of the two International Declarations has an influence/implication on

various legal regulations, both national and international law, including international trade

law regulated in the GATT/WTO as a legal norm that regulates international trade issues and

problems in the field of international trade as an important component of the national

development of countries. These two declarations also produced principles of international

environmental law.

Principles of International Environmental Law

 Principle of State Responsibility

Legally, the State has "sovereignty" over the natural resources within its jurisdiction.

This sovereignty brings logical and juridical consequences for the State as the highest

sovereign holder of any environmental management activities and/or activities.

United States environment and development policies as set out in the amended 1945

Constitution and the Environment Law No. 23 of 1997 outlines this sovereignty and principle

of State responsibility.

This responsibility of the State aims to create the greatest welfare and prosperity of the

people in environmental management. In the 1945 Constitution, this principle is regulated in

Article 33 paragraphs (3) : "The earth, water and natural resources contained therein shall be

under the control of the State for the greatest prosperity of the people." As also stipulated in

Article 8 of Law No. 23 of 1997 concerning Environmental Management, specifically

paragraph (1) which states that: "Natural resources are controlled by the State and used for

the greatest prosperity of the people, and their regulation is determined by the Government."

The responsibility of the State as the ruler of the environment and natural resources does not

mean that the State is the owner, but only as a regulator, which based on the provisions of

Article 8 paragraph (2) of the environmental law defines as:

 Regulate and develop policies for environmental management;

 Regulate the provision, allocation, use, environmental management, and reutilization

of natural resources, including genetic resources;

 Regulates legal acts and legal relationships between persons and/or other legal entities

as well as legal acts against natural resources and artificial resources, including

genetic resources;

 Control activities that have social impacts;

 Develop funding for efforts to preserve environmental functions in accordance with

applicable laws and regulations.

The above description which is based on the provisions of Article 8 paragraph (2) of the

Environment Law, it has become clear that the State in this case has never owned

environmental potentials, except for the authority to regulate.

 The Principle of Intergenerational Equity.

There are important reasons why the principle of intergenerational equity needs to be

regulated.Sustainability in the environment environmental sustainability not just

Sustainability in the environment is not only sustainability in development, but also

sustainability in meeting need the values and sense of "justice" of each generation.

Intergenerational equity is theoretically or practically closely linked to environmental

and subtainability issues, based on several issues as expressed by Syamsuharya Bethan:5

 The burden of environmental problems is borne by socially and economically weak

communities;

 Poverty causes environmental degradation. People who struggle to fulfill their basic

needs generally do not have and think about environmental concerns with the

preservation of environmental resources and carrying capacity;

 Not all community members have equal access to influence decision-making processes

that affect the environment. Knowledge, skills and decision-making on the one hand

benefit certain community members, but on the other hand disadvantage other

community groups;

 Environmental protection efforts may result in impacts on certain sectors of society, but

may also benefit others;

 Many development and production practices are not sustainable, resulting in damage to

the environment, natural resources and the carrying capacity of the environment used

for the livelihood of many people, such as rivers.

The principle of justice in one generation, which is closely related to environmental

issues, requires the togetherness of the community in totality in one generation to accept the

burden and responsibility without discriminating between one element and another in the life

of the community. The existence of aspects of justice in society in one generation actually

describes the objective conditions of sustainable development which also prioritizes attention

to the protection of natural resources and the environment from the threat of damage.

National environmental policy has actually thought about and accommodated the ideas

of intergenerational justice as described above. However, the strength of political interests

has caused the good policy to not work. As a result, the benefits and satisfaction enjoyed by

the current generation are not passed on to future generations, except for environmental

damage. Is it fair if future generations only inherit environmental damage due to the

carelessness of the current generation and the policies made in utilizing the environment and

existing natural resources. In fact, the principle of one-generation justice means that every

human being in the current generation has the right to enjoy fairly utilization of natural

resources and the right to a clean and healthy environment.

The existence of liberalization through free markets will make restrictions and barriers

to trade reduced or even removed. This means that countries around the world will be able to

access natural resources anywhere in the world, including United States.

Intergenerational justice means a reflection of the fairness of each generation to gain

access to natural resources in its management, including indigenous peoples in order to fulfill

the minimum needs for everyone to enjoy a healthy living environment and manage existing

natural resources, such as forests, mines and other minerals. If environmental damage is left

behind, it is certain that future generations will find it difficult to fulfill their needs. As

explained above, humans, including future generations, have a "sensitivity" to any changes in

the environment. To overcome this problem, the improvement of a legal system that includes

institutions, culture and legal substance needs to be considered.

 Basic Principles of a Good and Healthy Environment.

This principle is an important principle underlying law environmental law international law

as set out in the 1972 Stockholm Declaration and the 1992 Rio Declaration. Principle 1 of the

Rio Declaration states

The harmonious life referred to in the above statement is the harmony between humans

and nature.With the basic consideration that humans are part of nature as a sub-ecosystem

that lives with other sub-ecosystems, humans should be able to coexist with nature.Therefore,

humans have the responsibility to maintain and preserve nature, so that nature is able to

sustainably provide sources of life for humans.

This basic principle of a good and healthy environment has actually become part of

United States national environmental policy which is regulated through the Environmental

Law (UULH) No. 32 of 2009, specifically Article 5 which states:



Everyone has the same right to a good and healthy environment;



Everyone has the right to environmental information related to their role in

environmental management;



Everyone has the right to play a role in the framework of environmental management in

accordance with applicable laws and regulations.

This provision guarantees that everyone, both individually and in groups, continues to

enjoy a good and healthy living environment. To ensure and create a good and healthy

environment is not the responsibility of the government alone, but also the government. The

meaning of a good and healthy environment does not solely refer to nature and its resources,

but also export-imported goods from other countries as a result of trade between countries

(international).

 Principles of International Cooperation.

International Environmental Law outlines and emphasizes the need for international

cooperation in managing the environment both preventively and reflexively. This assertion is

expressed through a joint statement, namely:

Countries should cooperate based on the spirit of global partnership to preserve, protect and

improve the health and unity of the world's ecosystems.Based on different contributions to

global environmental degradation. Countries have common but different

responsibilities.Developed countries have the responsibility that they bear the international

demands on sustainable development in view of the public pressure on the global

environment and on technology and financial resources.8

This cooperation also demands that countries promote the spirit and practice of an

open economic system to enhance the economic growth and sustainable development of all

countries. Countries' trade policies should take into account environmental aspects.

International cooperation is necessary given the transboundary nature of

environmental impacts that cannot be avoided and prevented without international

cooperation. From an ecological point of view, the earth is not divided separately but only in

terms of management, which administratively must be subject to the sovereignty of each

State.

International cooperation carried out by the United States government through

international agreements, both between countries and international organizations that are

more of an international community pressure manifested in the form of financial assistance

and technical assistance. For example, cooperation between United States and Malaysia

where the Malaysian side provides technical assistance by sending equipment and volunteers

to participate in extinguishing forest fires to prevent the spread of smoke pollution.

 The Pay Polluter Principle.

Principle 16 of the Rio Declaration sets out the polluter pays principle which is

interwoven through its wording which expressly states: ...that the polluter should, in

principle, bear the cost of pollution." In the framework of environmental management

including the environmental aspects of trade, the Rio Declaration sets out the principle of

polluter pays. International trade, as stipulated in the GATT-WTO, should adhere to this

principle. This principle is very important to protect the public from the dangers of pollution

that may occur from trade between countries. Country (international) trade to be held

accountable for their actions that threaten environmental damage and harm other parties.

The polluter pays principle has become part of the national legal norm as stipulated in

Article 35 of the Environmental Law which emphasizes that:

 The person in charge of a business and/or activity that causes a major and important

impact on the environment that uses hazardous and toxic materials, is absolutely

responsible for the losses caused, with the obligation to pay compensation directly and

immediately at the time of pollution and/or environmental damage.

 The person in charge of the business and/or activity may be exempted from the

obligation to pay compensation as referred to in paragraph (1) if he/she can prove that

the pollution and/or destruction of the environment was caused by one of the

following factors: (a) natural disaster or war; (b) force majeure beyond human

capability; (c) action of a third party that caused the pollution and/or destruction of the

environment.

 In the event of losses caused by warfare by a third party as referred to in paragraph (2)

letter c, the third party shall be liable to pay compensation.

The regulation of the principle of pollution pay is clear in its basis and legal rules, but

in practice against Environmental cases in court are often ignored by judges as part of the

judicial process, on the grounds that there are no implementing regulations. It should require

extensive knowledge and wisdom, because judges can determine the success or failure of the

environmental law enforcement journey. According to the Wahana Lingkungan Hidup

Foundation (WALHI), the objectives of applying the polluter pays principle are :10

 Fulfill a sense of justice;

 In line with the complexity of technological development;

 Complex conflicts over natural resources and the environment; and

 Encourage business entities whose activities involve high risks to set aside social costs

that may arise from their activities.

According to the Explanation of Article 35 of the Environmental Law, the element of

fault does not need to be proven by the plaintiff as a basis for payment of compensation. The

amount of compensation that can be charged against a polluter or destroyer of the

environment can be set for a certain period of time on the grounds that there is a requirement

for insurance as a business and/or loss is concerned or an environmental fund is available. To

prevent and/or control the impacts arising from an activity, administrative requirements in the

form of permits and Environmental Impact Assessment (AMDAL).

Businesses or activities that are expected to have an important impact on the

environment as per Article 2 of Government Regulation Number 51 of 1993 concerning

AMDAL, namely:

 Landform and landscape change;

 Exploitation of natural resources both renewable and non-renewable;

 Processes and activities that can potentially cause waste, damage and degradation of

natural resources in their utilization;

 Processes and activities whose outcomes can affect the social and cultural environment;

 Processes and activities whose results may affect the preservation of natural resource

conservation areas and/or the protection of cultural heritage;

 Introduction of plant, animal and microorganism species;

 Manufacture and use of biological and non-biological materials; and

 Implementation of technologies that are expected to have great potential to affect the

environment;

 Activities that have a high risk and affect the defense of the State.

Associated with international trade activities on the products of an industry that uses

organic or non-organic materials is likely to disrupt the environment in the form of health

problems to the people of the receiving country.

Some principles of environmental management that become the policy framework of

international environmental law as stipulated in the 1992 Rio Declaration, can be applied and

have influenced the joints of international life including the field of trade which is the

strength of the economic sector of a country.These environmental principles can be used as a

principle in regulating international trade law.

Conclusion

The need for each State in its obligation to meet all the needs of its citizens makes the

State play an active role in this fulfillment and make every effort so that the welfare of its

people can be fulfilled. In the process of fulfilling this welfare, the State will conduct

Diplomatic Relations for the opening of International Trade, where this activity makes the

Environment an object of exploitation. So that Humans in this case the State ignores an

important element in the Environment, where the fulfillment of these needs must be in line

with the Concept of Sustainable Development, where each State must reconsider the impact

of the exploitation they do can disturb every element in the Environment itself.

The World Trade Organization (WTO) is the only international body that specifically

regulates trade issues between countries.11 The existence of the WTO is the only

international body that regulates trade issues between countries. As an international

organization that deals with the issue of international trade itself, provides some guidelines

that must be obeyed by each country. However, it returns to the principle of sovereignty of

each country where each country must respect every regulation formed by each country.

Therefore, the WTO leaves it to each country to regulate the environment in its country as

long as it does not violate the concept of sustainable development, so that future generations

can enjoy it again.

Environmental problems are not only a problem of one country, but every

environmental damage that occurs today is interrelated and its own impact is felt by every

country, such as climate problems that not only one country feels but all countries feel the

extreme changes in weather today which is none other than due to human error in exploiting

the environment without paying attention to sustainable development which is the concept of

international environmental law. The need for rules relating to this issue is not only in the

form of Soft Low but also in the form of Hard Low whose regulation can really drag every

country that commits violations even though the WTO gives back to countries on

environmental regulations in their countries.