Trade and Precaution: Their Progressive Interlace

Abstract

Problem statement: The principle of precaution has developed in International Law, as it has been present in either explicit or implicit forms in most of the celebrated international treaties dealing with the protection of the environment, over the past two decades. In spite of the huge recognition that this principle has got through incorporation, in the international order, this principle continues to be the greatest puzzle in International law for being vague, ambiguous and imprecise as well as its status in relation to being a principle of customary International Law. Conclusion/Recommendation: Elements of precaution have been incorporated into the WTO Agreements (SPS and TBT) and for the examination of the relationship between the two can only be analyzed by determining the basis upon which these measures are put in place in the agreements. WTO aims at progressive liberalization of trade and greater freedom to take risks, while precaution is an opposite attitude in decision making that reflects an aversion to risk in the face of uncertainty. The trade rules of the WTO permit countries to invoke precautionary measures especially on the basis of health or environment while justifying trade restrictions, but they face real challenges when defending a precautionary action before the WTO Dispute Settlement Body. The relationship between Multilateral Environmental Agreements (MEA) and the WTO is undergoing a change from being theoretical to a tenuous one due to the new trade trends and its upshot on the environment. This paper looks to find the middle path needed for further trade progression while minimizing the effects on the environment. And answer some questions like, when an invocation of the precautionary principle is trade protectionism in disguise, who should bear the burden of proof when there is disagreement between parties and the effect of new trade regulations on the developing countries.