5:43 AM Jun 15, 1994

ENVIRONMENT, SUSTAINABLE DEVELOPMENT, GATT AND NGOS

Geneva 14 June (Chakravarthi Raghavan) -- When GATT Deputy Director-General Warren Lavorel brought the gavel down on 11 June to end a two-day public symposium on trade, environment and sustainable development, he, and other GATT officials, were perhaps thankful that it was just a "symposium".

In its ancient Greek origins, the word meant "a drinking party with conversations after banquet". In its modern terminology it has come to mean philosophical or other friendly discussion, with contributions from various authors and points of view at a meeting, but without any conclusions having to be drawn.

However, in convening the symposium, the GATT Director-General and the secretariat have promised to prepare a report of their own for the GATT Contracting Parties, and even the three officials experienced in GATT's ways (Lavorel, and the two officials dealing with Trade and Environment issues in the secretariat, Richard Eglin and Sabrina Shaw) would not find the task easy.

(At an informal consultation of the Trade and Environment Committee - of the WTO preparatory committee - an oral briefing by the GATT officials, and comments of some GATT delegates who had been present at the symposium, brought out, according to participants, that there was no single NGO viewpoint, and that Northern NGOs wanted to be associated with the process.)

At the end of the two days of discussions -- on topics as wide-ranging as impact on environment and sustainable development of trade liberalization, market theories, intellectual property rights and patent monopolisation of public and community properties, the effect of services trade (including advertisement, audio-visual, tourism etc on consumerism and fostering unsustainable Northern patterns in the South), North's consumption patterns and sustainable development, internalization, eco-labelling etc -- it was clear that there were widely differing and even opposing views and there was no single view or even one commanding a large consensus within the 'NGO community' -- a widely used term at the meeting, with some claiming to speak for the 'NGO community'.

There were differences within the North and, by and large, between the North and the South -- though each found allies in the other for its particular view -- and some in the North wanting to 'teach' the South and the GATT delegations about environment.

The symposium had brought to the GATT Council chamber where it was held representatives of non-government organizations -- predominantly from the North, and a much smaller number from the South, whose participation had been enabled by a Ford foundation funding via the GATT secretariat -- business groups from the North, some GATT delegations and representatives from other international organizations.

To the first ever such encounter with the GATT, the NGOs brought the variety of their individual agendas and which each wanted to put on the 'new trade agenda'.

While there was perhaps a wide consensus on the need for 'more transparency' of the GATT and the future WTO, and greater access of the public to information -- there was no consensual view on how this can be achieved.

For many Northern groups, and the US and Europe-based 'international' groups specially, the problem would be solved by giving them 'observer' status in the future WTO and enabling them to be present and present their views at the meetings of that body. There was some naivety in this view that by their presence and 'observership', they will ensure 'transparency' of GATT/WTO negotiating processes and they would become negotiating partners with governments. Some of them failed to comprehend that this might drive the negotiating processes even more underground than now or that some northern governments are merely using them for their own ends.

Many Southern NGOs, whether national or international, while agreeing on need for transparency, and wanting the WTO's role limited in terms of its ability to intervene or lay down areas of economic policy which ought to be in 'national space', were less enthusiastic about the NGO status. This they felt would merely increase the Northern voice in this debate -- enabling the Northern based groups, and business lobbies, to have access and mobilise through their southern branches a claim for 'global view' -- while distant and autonomous Southern NGOs would be unable to be present and their different views ignored by default.

If there was perhaps a common thread, atleast among the Northern groups, it was a desire to have such meetings held periodically and engage in a 'dialogue' with governments.

The symposium was on trade, environment and sustainable development, but an unwary listener would have got the impression most of the time that the new paradigm revolved around a particular variety of dolphins in the eastern tropical Pacific oceans (with some US official information casting doubts even over the danger of their extinction) which have become as "sacred" to the Americans and many Europeans too as perhaps the "cow" to the Hindus.

But the reality of 'power' is such that, as Trade Policy Economist Jagdish Bhagwati pointed out some months ago to a Washington seminar, the Indians don't have the economic or military power to force others to accept their views on 'cows' -- by a S301 equivalent of their own to apply trade sanctions against those countries that eat the cows -- while the Americans have the power and some of their environmental groups want unilateral exercise of this power beyond national jurisdiction to get the world accept an American view.

While many northern NGOs concentrated on the environmental damage that could be caused by trade 'liberalization' of the Uruguay Round and the WTO, GATT Director-General Peter Sutherland had pointed out at the beginning that if the negotiations had failed and the world had relapsed to protection and regionalism, and markets shut off for developing countries, it would have reduced world economic growth and increased poverty and environmental degradation in the South.

Others noted that the degradation of environment and sustainable development had to be seen not in terms of trade theories which only distributed the 'benefits', but in terms of the market theories as practised which assumed that oligopolistic competition of global TNCs would produce efficient of allocation of resources and economic growth. The experience of the last 50 years of central planning and its failure should not blind one to the experiences of 300 years of industrial capitalism. This last had shown that while the 'market' could be an efficient allocator of resources, it could not produce equity and had been responsible for the current environmental degradation of the globe and the market and price signals could not resolve these problems. The view that the markets, left to themselves, would create wealth whose benefits would trickle down -- like manna from heaven on the first pentecost day but not thereafter -- had not happened for 300 years of industrial capitalism and would not in the future.

There was also much debate about theories of 'internalization' of costs and reflecting them in the price to send the correct market signals -- a view that was predominantly advocated by several Northern groups.

But this view was challenged by most of the Southern NGOs who said the market was of no account for the vast majority of the poor in the South, and also now in the North, who were not 'in the market' but marginalised outside. They asked how the North's overconsumption could be 'internalized' into full market prices and how the increased price and revenues would be used for environment and sustainable development. How would the damage done by the North -- during the colonial rule and now through the structural adjustment policies of the Fund and the Bank controlled by them -- of the past and present on local populations of the South and the indigenous peoples (whose common properties and knowledge had been misappropriated to private ownership) would be reflected in pricing on the 'polluter pays' principle. Would increased energy taxes be retained in the North or given to Southern energy producers and those with forests etc providing environment services, and as part of a contractual obligation?

How would the environmental costs of nuclear power, given the half-life of some nuclear wastes that run into over 20,000 years, be internalized in France, Britain, Japan or the US and other such countries and reflected in the end price. What would be cost of the agricultural products produced and processed by the mix of electric power in these countries? How would the damage to environment caused by international goods transport in containers -- a technology developed by US navy-funded operations -- be priced and reflected in the TNC operations?

One US NGO noted that a full internalization of the cost of producing wheat in the US would result in a price of $8-9 per bushel at the farm, instead of the present $2 per bushel, while a Canadian business NGO said the full cost of an automobile, whose price is fully internalized to reflect its full life-cycle would be $250,000.

These were very difficult issues, in which much more basic work and economic analysis was needed, and environmental economists and even international organizations should be more careful before throwing around such concepts and prescribing such ideas or pushing them on the international agenda as solutions, they warned.

Northern governments, and groups in the North advocating this 'market-based' approach, should first set an example and undertake their own full internalization, starting with agriculture and energy, and then it would be time for the South to consider how to do it for itself, some of the South NGOs argued.

The idea of eco-labelling and 'consumers' in the North using this to promote environmentally sound production was also seen by several critics as full of deficiencies and more often used as a disguised protectionist instrument. While elite consumers -- a very small minority -- in the South with Northern consumption styles could benefit, the vast majority not in the consumer market would not, but may face danger of their subsistence production being 'labelled out'.

Several northern NGOs, including some of the prominent international ones pushed the view that the WTO or GATT rules should be changed to enable importing countries to restrict not only products on environmental or health grounds, but also on the basis of the process (PPMs) and their 'environment friendliness' as decided by a country.

The argument was that a community or country wanting higher environmental quality and restricted a production process, for the sake of competitivity of its enterprises, the country concerned should be able to restrict imports based on the process restricted or banned by it.

Since current GATT rules -- exceptions in Art. XX (b) and (g) -- only allow for banning or restricting import of products and not the processes used for that product -- the rules must be amended and GATT dispute panels should be empowered to look for applicable international law outside the GATT's rights and obligations, have 'environment experts' to advise them, and make it the responsibility of the complainant to prove that the purported environment claim was not such but a protectionist one.

Several of the Southern representatives challenged this view. While 'internalization', they said, had been useful at micro levels, to enable local communities to force the enterprises to pay the costs of their 'externalisation', it was too complicated to apply at international trade levels where 40-50 percent of the trade was within a TNC and its subsidiary, and problems of transfer pricing etc were involved in such costing.

The concepts of 'internalization', 'eco-dumping' and 'counter-vailing' duties to offset actions or inactions of other countries would be used against competitive Southern products, but would do nothing to attack the major source of environmental degradation, namely the overuse of the world's energy and other resources, unsustainable consumption and the toxic wastes of the North.

Without corresponding international agreements to assure higher prices, internalization of tropical wood or other commodities of the South would only price them out of the market in an olypsonic economy.

Several Southern NGOs identified the TRIPs agreement as a trade-restrictive, rather than liberalization agreement, and one creating global monopolies in favour of Northern TNCs without the governments of the South being able to exercise a balance in their markets between private monopoly and public interest.

While the representative of the Governor of California in Washington, pointed to TRIPs, and to the S.301 family of laws empowering US unilateralism, as his major proud achievement, several Southern NGOs warned that any attempts to impose US will -- or the US Supreme Court view, in the Chakrabarty case, that 'shuffling' genes within a chromosome or from one variety of species to another amounted to creating a new gene, entitled to patent protection for life forms -- was contrary to all religions. Such a view enforced on the rest of the world through S.301 coercion made the TRIPs an unequal treaty that would ultimately become unenforceable when Southern communities decide to disobey such 'rights' and any 'order' based on such rights would face disobedience and turn into 'disorder'.

(Future issues of the SUNS will carry analysis of some of the environment/sustainable development issues arising out of the symposium)

I.TOPIC CJ opens hearings on status of nuclear weapons

United Nations: ICJ opens hearings on status of nuclear weapons

Geneva 14 June (TWN) -- The International Court of Justice at The Hague which has opened hearings on the legal status of nuclear weapons and their use, has been presented with a collection of 'citizens evidence' -- a sample of some 100 million signatures collected from around the world by NGOs, according to a press release by the Zurich-based International Peace Bureau (IPB).

This is the first time that the legal status of nuclear weapons is being sought to be comprehensively tackled by the UN's most authoritative legal body.

The case arises out of a 1993 World Health Assembly resolution which put before the Court, for an advisory opinion, the question: "In view of the health and environmental effects, would the use of nuclear weapons by a State in war or other armed conflict be a breach of its obligations under international law, including the WHO Constitution?"

Despite strong pressures from the NATO nuclear weapon powers (US, UK and France), and their efforts to stymie this case and block the proceedings, some 12-14 governments (according to the IPB) have made written submissions to the Court before the 10 June deadline set by it.

These include Kazakhstan, Mexico, North Korea, Papua New Guinea, Sweden and Ukraine who have reportedly made submissions that the use of nuclear weapons in armed conflict would be illegal. Others -- including Belarus, Ireland and Molodova -- have welcome the case and say they wish it to go forward.

The World Court project -- founded by the IPB, the International Association of Lawyers Against Nuclear Arms (IALANA) and the International Physicians for the Prevention of Nuclear War (IPPNW) -- have made a formal representation to the court of a sample of the 100 million signatures to the "Appeal from Hiroshima and Nagasaki", together with 160,000 specially devised "Declarations of Public Conscience", 11000 signatures of lawyers and other material surveying 50 years of opposition from citizens to nuclear weapons.

The government of Japan which had originally announced it would submit a view to the ICJ that nuclear weapons use would not necessarily be illegal is reported by the IPB press release as now having reversed its position as a result of vociferous public outcry from A-bomb victims, lawyers and peace organizations.

North Korea, which is now the focus of a concerted international moves against its nuclear programme, which North Korea insists is a peaceful one, has also submitted a statement to the ICJ saying nuclear weapons use would be a clear breach of the international law.

Ireland, breaking with the European Union view of objecting to the case, has taken the position that the case was not 'incompatible' with efforts to achieve disarmament in the political field.

A positive ruling from the ICJ, Dr. Maj-Britt Theorin, President of the IPB says, "A positive ruling from the ICJ in this important case will remind the nuclear weapon States of their legal obligations under Article 6 of the Non-Proliferation Treaty to move towards elimination of nuclear weaponry. As long as they play down this obligation, other countries - and not only North Korea - will be tempted to follow their example and develop their own nuclear arsenals"