Rule of man,
or rule of law?

Tommy Koh
describes the importance of the rule of law in protecting the environment and promoting free trade

Let me first confess my prejudices. I am a lawyer and a law teacher. One of my lifelong quests is to promote the rule of law in the world. I believe that it will be a better place if opacity is replaced by transparency, if arbitrariness is replaced by accountability, and if the rule of man is replaced by the rule of law. I believe that a country’s capacity to protect its environment and its prospects of achieving sustainable development are enhanced if its adherence to the rule of law is strong.

Say, for example, Country X has laws in its book criminalizing the use of fire to clear land. Yet, year after year, logging companies and plantations set fire to large tracts of it, spewing smoke and dust into the atmosphere, which are carried by the wind to its neighbours. Satellite photographs show precisely where the fires are, so it is not difficult to identify the culprits. Why are they not brought to justice? Why does the problem recur in spite of the promises to resolve it? It is because the rule of law is weak in Country X. This illustrates my point that a country’s capacity to protect its environment and its prospects for achieving sustainable development are enhanced if its adherence to the rule of law is strong and the quality of its governance is good.

My involvement with the environment goes back to the early 1970s, when Singapore was a member of the preparatory committee for the 1972 United Nations Conference on the Human Environment in Stockholm. Eighteen years later, in 1990, I was elected to chair the preparatory committee for the United Nations Conference on Environment and Development (UNCED). After two arduous years of preparation, the Conference was held in Rio in June 1992, where I was elected Chairman of the main committee.

Important contributions
UNCED, popularly known as the Earth Summit, has made several important contributions to the world. One of the most important was to raise the world’s consciousness of the urgent need for humankind to do much better in looking after our environment, and of the imperative of reconciling our quest for economic progress with care for the environment. The concept of sustainable development was coined to capture that reconciliation. Among Rio’s successes have been leading almost every country to set up a ministry in charge of the environment or an environment protection agency, and inscribing sustainable development on every national agenda.

Formidable environmental challenges face several Asian countries, but I am optimistic about the future. Asian governments today are much more conscious of the need to address them. With growing prosperity, they are better endowed to deal with the problems. Their peoples are rising up and demanding that the state do something to clean up the environment and afford them a higher quality of life. They are no longer willing to breathe polluted air, to drink contaminated water, and to allow their natural environment to be destroyed. Asia must change. Asia will change.

Transparency and non-discrimination
When Singapore hosted the first WTO Ministerial Conference in 1996, I was part of the Chairman’s team that worked closely with the Secretariat to make the Conference succeed. Subsequently, the WTO has appointed me to three dispute panels, twice as Chairman. I regard it as one of the world’s most important international organizations, because I believe that the facts show that free trade produces prosperity. Those developing countries – such as those in Northeast and Southeast Asia – who have plugged themselves into the world trading system, have succeeded in increasing prosperity and reducing poverty. The WTO is very important because it has developed multilateral rules that govern trade among the world’s economic entities, and upholds and enforces them. These rules promote fairness, and curb the instinct of states to act arbitrarily. Its two governing principles are transparency and non-discrimination.
A country’s capacity to protect its environment and its prospects of achieving sustainable development are enhanced if its adherence to the rule of law is strong
I find no contradiction in my support for UNEP, the WTO and the rule of law. Indeed, the rule of law is important to both bodies. The real question is whether there are contradictions between the governing principles of the WTO and some features of some of the multilateral environmental agreements. The honest answer to that is yes. There are approximately 200 multilateral environmental agreements, about 20 of which contain trade provisions – including the Montreal Protocol, the Basel Convention and the Convention on International Trade in Endangered Species, or CITES. Some of these trade provisions contradict the WTO’s principle of non-discrimination because they restrict trade of certain products between parties and non-parties of the agreement, and because they impose a ban on trade.

Schools of thought
The WTO is currently examining Article XX of the General Agreement on Tariffs and Trade (GATT), which provides for general exceptions to the agreement. There are two schools of thought on this: that the article should be clarified – for example, through an amendment – to make clear the scope of the exceptions; and, conversely, that there is no need for this since, to date, no conflict has arisen between WTO provisions and trade measures taken pursuant to multilateral environmental agreements. While this is being discussed the scope of the article is actually being clarified by WTO jurisprudence, resulting from the decisions of the WTO’s Appellate Body. My own view is that any accommodation of environmental concerns by the WTO should be accompanied by safeguards to ensure that they could not be used for protectionist purposes. We should not support any move to amend the rules that would allow members to restrict imports on the basis of some unilaterally determined standards. Contrary to perception in some quarters, countries do not lower their environmental standards in order to gain trade advantage

Professor Tommy Koh is Ambassador-At-Large, Ministry of Foreign Affairs, Singapore and Chairman of the Institute of Policy Studies.

PHOTOGRAPH: Akio Ogata/UNEP/Topham

This issue:
Contents | Editorial K. Toepfer | Strengthening the rule of law | Partners in law | Justice can be shortsighted | Force of law | A matter of judgement | A law of energy | People | Rule of man, or rule of law? | At a glance: The rule of law | Sebastião Salgado | Sustainable development comes from Saturn! | One planet, different worlds | Nature’s wisdom | Kickback fightback | Conflict and cooperation | Holistic landmark | Empowering the poor | Legal climate | Small is effective | Building the framework

Complementary issues:
Poverty, Health and the Environment 2001
World Summit on Sustainable Development 2002
Globalization, poverty, trade and the environment 2003