| Summary: | 碩士 === 東吳大學 === 法律學系研究所 === 88 === Abstract
The conflict of trade and environment stems from the internationalization of environmental degradation and the liberalization of international trade. Because of the natural resources of the Earth is limited, we should engaged in the recycling of discarded trashes to achieve the goal of "sustainable development". The regulations of the recycling in the world could divide into three parts: command and control regulations, economic incentives/instruments, and the open up and development of secondary materials. If such regulations combine with trade protectionism to discriminate the imports arbitrarily or unjustifiably to protection the domestic production, the non-tariff barrier to trade would impede the commercial activities Between the Members.
Besides of the forward and the conclusion, this thesis will divide into five chapters. The forward summarizes the origins of trade and environment, the fundamental problems between recycling and free trade, and to show the research scope (include the concepts of recycling and the scope of international trade regulations) and the framework of this thesis.
Chapter One "International Trade Regulations and Environmental Protection Regulations" is prepared to illustrate the principle of free trade and the environmental exceptions in international trade norms (GATT/WTO) and regional trade norms (including "North America Free Trade Agreement" and "Maastricht Treaty on European Union") first, and then to illustrate environmental regulations which have adverse impacts on trade in the multilateral environmental agreements (MEAs) and domestic environmental protection regulations.
Chapter Two "Recycling System" is prepared to describe the development process of recycling system in Taiwan and to analysis the recycling regulations during the "start periods", "consolidate periods" and "recycling integrated legislate periods". And then this chapter is prepared to summarize the "command and control regulations", "economic incentives/instruments", and "the open up and development of secondary materials" of recycling regulations in the world, and to analysis such regulations on the international trade norms which are involved.
Chapter Three "The Internal Regulations of Recycling", Chapter Four "Border Taxes Adjustment and Subsidies of Recycling" and Chapter Five "Ecolabelling and Government Procurement of Recycling" are prepared to illustrate the "command and control regulations", "economic incentives/instruments", and "the open up and development of secondary materials" of recycling regulations on GATT/WTO international trade regulations which are involved, and to analysis the conflicts and the harmonization of trade and environment.
In the conclusion, I discover there are six conflicts on trade and environment in recycling, I will bring up the harmonization hereinafter respectively:
1) The interpretation of "like product" is unfavorable in recycling. The harmonizing methods are that the interpretation of "technical regulation" and "standard" of TBT Agreement should be changed; narrow the range of "non-product-related processes and production methods standards" the interpretations of "like product" should take account the internal regulation of recycling whether intended to protection the domestic production; and the identification standard of "like product" of Taiwan should adopt processes and production methods.
2) The strict interpretation of environmental exceptions would hinder recycling. The harmonizing methods are that "relating to" need not interpret narrow to "primarily aimed at" the damages of environmental regulations confine free trade and the environmental interest are not "clear" unbalance belong to necessary measure; extrajurisdictional as collateral effect is still legal measure, take into account to add other environmental exceptions; and the interpretation of environmental exception of Taiwan "Trade Law" should be restricted.
3) The process of trade dispute resolution would not conform to due process requirement. The harmonizing methods are that Panel should join environmentalist, establish the regime of avoid of conflict of interests, and open the trial procedure; Member should have the rights of stating evidence and subpoenaing witness; the proof burden of Members should reverse; and the Panel report of trade and environment case should be adopted by both parties unanimously.
4) The standards of recycling regulations are not alike in the world. The harmonizing methods are that recycling should establish international standard, mutual recognition, information circulation, and public participation system.
5) The exemption or remission the taxes on inputs which are not physically incorporated into the product would challenge environmental protection. The harmonizing methods are that the range of exemption or remission of indirect taxes should be modified.
6) The definition of subsidies (or environmental subsidies) is too tightly to confine the recycling subsidies. The harmonizing methods are that environmental dumping should constitute subsidies; and the subsidies of recycling should avoid to constitute actionable subsidies and discriminate foreign enterprises.
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