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本文共分为三个部分。第一部分选取了14个多边环境条约,对它们使用贸易措施的情况进行了归纳:包括使用贸易措施的目的和所使用的贸易措施的种类。总的来说是保护全球环境,具体分析,有些措施的直接目的是为了保护本国环境,也有些措施的直接目的在于保护他国环境,当然还有些措施的直接目的是保护全球的共享环境。这些多边环境条约所授权成员国使用的贸易措施的种类是很难列举穷尽的,因为有些条约授权成员方采取符合公约目的和要求的单边措施,就条约明确要求的措施而言,大体有禁止进出口、许可证、对非成员国的歧视以及标签、证明、配额、对生产和加工方法进行限制等,基本包含了常用的贸易限制措施。第二部分分析了多边环境条约中的贸易规则与WTO协议的潜在冲突。冲突主要表现为多边环境条约中限制成员国与非成员国之间贸易的规定可能违反WTO的最惠国待遇原则;环境条约中基于预先防范原则的贸易措施和WTO的《卫生与植物检疫措施协议》对科学依据的要求之间的矛盾;环境条约和WTO协议对待基于生产和加工方法的贸易措施的不同态度。这些冲突并非仅仅是理论上存在,欧盟与智利之间的剑鱼案显示这种理论上的冲突完全可以发展为现实的碰撞。第三部分探讨了解决多边环境条约和WTO协议之间潜在矛盾的方法,这些方法诸如通过WTO的豁免义务条款豁免成员方履行环境条约而采取的措施,或者修改WTO的一般例外条款,或者签订一个与环境有关的贸易协议,或者仍然通过WTO的争端解决机制在个案的情况下解决。现在正进行的多哈回合谈判有这个问题的谈判授权,成员方也正就此问题进行谈判,这也是国际社会解决这两套国际法规则之间不协调之处的一个难得机会。
This article is divided into three parts. The first part selected 14 multilateral environmental treaties and summarized their use of trade measures, including the purpose of trade measures and the types of trade measures used. In general, the global environment is protected and specifically analyzed. Some of these measures are aimed directly at protecting their own environment. Some are directly aimed at protecting the environment of other countries. Of course, the direct purpose of some measures is to protect the global shared environment. The types of trade measures that Member States that are mandated by these multilateral environmental treaties are hard to enumerate are exhaustive as some treaties authorize member parties to adopt unilateral measures that are in conformity with the objectives and requirements of the convention and generally prohibit, in the case of measures expressly required by the treaty Import and export, permits, discrimination against non-member countries and labeling, certification, quotas, restrictions on production and processing methods, etc., basically contain the commonly used trade restrictions. The second part analyzes the potential conflicts between trade rules and WTO agreements in multilateral environmental treaties. The conflict is mainly manifested in the multilateral environmental treaties restricting the trade between member countries and non-member states may violate the principle of the most-favored nation of the WTO; environmental treaties based on the precautionary principle of trade measures and the WTO’s SPS Agreement on Science The contradiction between the requirements on which they are based; the differing attitudes of environmental treaties and WTO treaties on trade measures based on production and processing methods. These conflicts are not merely theoretical. The swordfish case between the EU and Chile shows that this theoretical conflict can fully develop into a real collision. Part III explores ways to resolve potential conflicts between multilateral environmental treaties and WTO agreements such as exempting members from implementing environmental treaties through the WTO’s exemption clause or by amending the WTO’s general exceptions or signing a Environment-related trade agreements, or still through the WTO dispute settlement mechanism in case of resolution. The Doha Round negotiations now under way have the negotiating authority on this issue and the member countries are also engaged in negotiations on this issue. This is also a rare opportunity for the international community to resolve the incompatibility between the two sets of rules of international law.