Economics, Law, and Institutions in Asia Pacifi c Mitsuo Matsushita Thomas J. Schoenbaum Editors Emerging Issues in Sustainable Development International Trade Law and Policy Relating to Natural Resources, Energy, and the Environment 123 Economics, Law, and Institutions in Asia Pacific Series Editor Makoto Yano (Professor of Economics, Kyoto University, Japan; President and Chief Research Officer, Research Institute of Economy, Trade and Industry (RIETI), Japan) Editorial Board Members Reiko Aoki (Professor of Economics, Kyushu University, Japan) Youngsub Chun (Professor of Economics, Seoul National University, Republic of Korea) Avinash K. Dixit (John J. F. Sherrerd '52 University Professor of Economics, Emeritus, Princeton University, United States) Masahisa Fujita (Fellow, The Japan Academy, Japan) Takashi Kamihigashi (Professor and Director, Research Institute for Economics and Business Administration (RIEB), Kobe University, Japan) Masahiro Kawai (Project Professor, Graduate School of Public Policy, The University of Tokyo, Japan) Chang-fa Lo (Honourable Justice, The Constitutional Court, Taipei, China) Mitsuo Matsushita (Professor Emeritus, The University of Tokyo, Japan) Kazuo Nishimura (Professor, Research Institute for Economics and Business Administration (RIEB) and Interfaculty Initiative in the Social Sciences (IISS), Kobe University, Japan; Member, The Japan Academy, Japan) Akira Okada (Professor of Economics, Institute of Economic Research, Kyoto University, Japan) Shiro Yabushita (Professor Emeritus, Waseda University, Japan) Naoyuki Yoshino (Dean, Asian Development Bank Institute, Japan; Professor Emeritus, Keio University, Japan) The Asia Pacific region is expected to steadily enhance its economic and political presence in the world during the twenty-first century. At the same time, many serious economic and political issues remain unresolved in the region. To further academic enquiry and enhance readers’ understanding about this vibrant region, the present series, Economics, Law, and Institutions in Asia Pacific, aims to present cutting-edge research on the Asia Pacific region and its relationship with the rest of the world. For countries in this region to achieve robust economic growth, it is of foremost importance that they improve the quality of their markets, as history shows that healthy economic growth cannot be achieved without high-quality markets. High-quality markets can be established and maintained only under a well-designed set of rules and laws, without which competition will not flourish. Based on these principles, this series places a special focus on economic, business, legal, and institutional issues geared towards the healthy development of Asia Pacific markets. The series considers book proposals for scientific research, either theoretical or empirical, that is related to the theme of improving market quality and has policy implications for the Asia Pacific region. The types of books that will be considered for publication include research monographs as well as relevant pro- ceedings. The series show-cases work by Asia-Pacific based researchers but also encourages the work of social scientists not limited to the Asia Pacific region. Each proposal will be subject to evaluation by the editorial board and experts in the field. More information about this series at http://www.springer.com/series/13451 Mitsuo Matsushita • Thomas J. Schoenbaum Editors Emerging Issues in Sustainable Development International Trade Law and Policy Relating to Natural Resources, Energy, and the Environment Editors Mitsuo Matsushita Thomas J. Schoenbaum The University of Tokyo Law School Bunkyo-ku, Tokyo George Washington University Japan NW, Washington D.C. USA ISSN 2199-8620 ISSN 2199-8639 (electronic) Economics, Law, and Institutions in Asia Pacific ISBN 978-4-431-56424-9 ISBN 978-4-431-56426-3 (eBook) DOI 10.1007/978-4-431-56426-3 Library of Congress Control Number: 2016954076 © Springer Japan 2016 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. Printed on acid-free paper This Springer imprint is published by Springer Nature The registered company is Springer Japan KK The registered company address is: Chiyoda First Bldg. East, 3-8-1 Nishi-Kanda, Chiyoda-ku, Tokyo 101-0065, Japan Preface Natural Resources, International Trade, and Sustainable Development Natural resources include the raw materials mankind derives from the functioning ecosystems of the planet Earth as well as the products and services that are derived from them. Natural resources include a wide variety of entities and products, such as metals, water, fossil fuels, and biological products of many kinds. Natural resources are essential to the economic and spiritual well-being of mankind and life on Earth. There are three special reasons why we should give particular attention to natural resources. First, what we call natural resources are part and parcel of the Earth’s functioning ecosystems, which are essential to life on Earth. Second, natural resources provide mankind with what scientists call “ecosystem services”—things we take for granted, such as water for our needs, protection for our coastal lands, and supplies of fish and other products. Third, natural resources are inherently limited; we must take care to use them wisely. For the foregoing reasons, what we now call “sustainable development” is very important when dealing with natural resources. Sustainable development, briefly stated, is the use of natural resources with a view of preserving essential natural resources for future generations. Sustainable development is a concept that permits economic growth and use of resources but mandates the wise usage of resources to ensure their future availability. When we consider the scope of application of sustainable development applied to our political and economic systems, we may divide sustainable development into two levels: domestic sustainable development and sustainable development at the international level. This work covers sustainable development of natural resources from the view- point of the multinational trading system. Natural resources of all kinds move in international trade. Moreover, states are situated differently with respect to natural resources: some states are rich in certain natural resources, while other states are v vi Preface resource-poor. Under these circumstances, it is essential to maintain robust inter- national trade and investment in natural resources. Nevertheless, the conservation of natural resources is essential both at the domestic and international levels. In addition, there must be correlation between domestic conservation on the one hand and international conservation measures on the other. The key question is how to achieve this conservation. This book attempts to provide an answer to this question by considering multiple facets of international conservation of natural resources. As editors, we have divided the book into eight sections to correspond with eight facets of international conservation of natural resources. Eminent scholars from many different countries address these eight different areas of policy. In Part I of this book, we examine the domestic legal regimes for the conserva- tion of natural resources in two key countries, Australia and China. Unsurprisingly, because these two nations have very different political and legal systems, their conservation laws and policies provide a rich contrast. While Australia has many longstanding conservation policies in place, the conservation of natural resources in China is still an evolutionary project. Part II analyzes in detail what is perhaps the most important aspect of interna- tional sustainable development of natural resources—the rules of the multinational trading system administered by the World Trade Organization (WTO). We find that the WTO rules on export restrictions relating to natural resources are ambiguous and controversial. While the WTO historically has been concerned with import measures in international trade and access to markets, the export side of trade which is crucial to the conservation of natural resources has been neglected to the point that the rules are not only ambiguous but are unfair. We call for reform of WTO export rules to correct this unfairness. Part II also analyzes in detail the general exceptions of the WTO General Agreement on Tariffs and Trade from the point of view of conserving natural resources. The analysis of these general exceptions is particularly aided by the fact that the