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Journal of International Economic Law




Traditionally, supporters of free trade and environmentalists have regarded each other as the obstacle to development, and both sides have very different views as to what constitutes development. This article considers the various dimensions to international trade governance in the context of the environment and draws from the dialogic theory in comparative constitutional law to frame trade governance regarding the environment in a new way. It uses a dialogical approach to highlight primarily three characteristics of the international trade regime that has fostered enhanced cross-fertilization of trade and environmental issues: (i) the adjudicatory capacity of the World Trade Organization (WTO) and preferential trade agreements (PTAs), (ii) the administrative capacity of the WTO and PTAs, and (iii) the fragmentary nature of trade governance. This approach highlights ways in which these three dynamics have allowed for heightened ‘cross-fertilization’ of environmental concerns into the trade framework, stimulating a form of transnational regulatory bargaining with respect to environmental issues vis-à-vis trade that reaches beyond the trade realm. Though a close look at these characteristics also illuminates the important role of free trade more generally and the WTO more specifically, in setting a normative vision of environmental sustainability, it also shows that trade regimes are limited in setting a course for addressing sustainable development. In particular, free trade says little about what constitutes sustainable development, especially when also faced with the different challenges for economic development in the developed and developing countries.

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Oxford University Press

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