Restricting Biofuel Imports in the Name of the Environment: How Does the Application of WTO Rules Affect Developing Countries?

• Author: Haniff Ahamat & Nasarudin Rahman
• Pages: 51-78

Biofuel Imports 51

VII JEAIL 1 (2014)

Haniff Ahamat

∗

& Nasarudin Rahman

∗∗

There are calls for biofuel imports from developing countries to be restricted. The

imports which are either in the form of end-product (bioethanol or biodiesel) or

feedstock (oil palm, sugar cane molasses, etc) are allegedly produced in ways which



 

on such trade is governed by the existing trade regimes including tariffs and non-



and anti-subsidy) regimes are still inadequate in ensuring that measures are taken

against biofuel feedstock and products that were produced in unsustainable ways. The



that they serve a protectionist rather than social or environmental objectives.

Keywords

WTO law, international Environmental law, Renewable Energy, Like

Products, Sustainable Development, Special & Differential Treatment

Restricting Biofuel

Imports in the Name of the

Environment: How Does

the Application of WTO

Rules Affect Developing

Countries?

∗ Assistant Professor at International Islamic University Malaysia (“IIUM”) Ahmad Ibrahim Kulliyyah (Faculty) of

Laws. LL.B. (IIUM), LL.M. (UKM), Ph.D. (Essex). ORCID: https://orcid.org/0000-0003-4026-3633. The author

may be contacted at: ahaniff@iiu.edu.my / Address: AT O. Box 10, 50728, Kuala Lumpur, Malaysia.

** Assistant Professor at International Islamic University Malaysia Ahmad Ibrahim Kulliyyah (Faculty) of Laws. LL.B.,

MCL (IIUM), Ph.D.(Macquarie). ORCID: http://orcid.org/0000-0003-3093-559. The author may be contacted at:

nasarudin@iium.edu.my / Address: ATO. Box 10, 50728, Kuala Lumpur, Malaysia.

DOI: http://dx.doi.org/10.14330/jeail.2014.7.1.03

ARTICLES

2014-05-23 오후 2:11:11

52 Ahamat & Rahman

I. Introduction

As the surge in global oil prices has increased the demand for production and

trade of both biofuel feedstocks and products, trade in biofuels is becoming a more

relevant topic of discussion in the international community. This has led to an

increase in demand for crops, like soybean, corn and sugar cane, which is processed

into not only biofuel feedstock, but also for biofuel end products like bioethanol and

biodiesel. This has pressured supply, which has in turn led to the inflation of the

prices of food. This can be witnessed in the skyrocketing prices of tortillas in Mexico,

which was partly due to the lucrative demand for corn from bio-ethanol producers

in the US.

1

Food supply may be threatened by disincentives to farmers; they would

rather focus on producing ‘fuel-friendly’ grains. As evidenced in the US, some

farmers switched from wheat to maize for this purpose.

2

The mass production of biofuels could lead to the clearing of large tracts of

rainforests. Grand scale developments of palm oil plantations in Malaysia and

Indonesia, and sugar cane plantations in Brazil for the production of biofuels are

vivid examples of devastation. They have led to deforestation, mono-cropping

and the deprivation of human rights of indigenous people which is to be protected

under the International Covenant on Economic, Social and Cultural Rights

(“ICESCR”) as well as the regional human rights treaties. Biofuel crop plantations

disrupt communal living of the indigenous, deprive their right to health

3

and deny

their cultural rights.

4

These arguments have been used consistently by developed

countries as a means to restrict biofuel imports from developing countries like

Malaysia, Indonesia and Brazil in that they inform the discussions on trade in

biofuels.

5

1 Jo Tuckman, Tortilla turmoil, The Guardian, Aug. 22, 2007, available at http://www.guardian.co.uk/society/2007/

aug/22/guardiansocietysupplement.environment (last visited on Apr. 6, 2014).

2 J. Vidal, The looming food crisis, The Guardi an, Aug. 29, 2007, available at http://www.guardian.co.uk/

environment/2007/aug/29/food.g2 (last visited on Apr. 6, 2014).

3 An example is Inter-American Commission on Human Rights case of Yanomami v. Brazil (Res. No. 12/85, Case

7615). See C. Scott, Multinational Enterprises and Emergent Jurisprudence on Violations of Economic, Social and

Cultural Rights, in economic, Social and culTural riGhTS 577 (A. Eide, C. Krause & A. Rosas eds., 2001); C-f. Lo,

Plurilateral FTAs to Enhance Human Rights Protection in Asia, 8 aSian J. WTo & inT’l healTh l. & Pol’y 608

(2013).

4 Scott, id. at 581.

5 Friends of the Earth, The use of palm oil for biofuel and as biomass for energy: Friends of the Earth's position,

Briefing, Aug. 2006, available at http://www.foe.co.uk/sites/default/files/downloads/palm_oil_biofuel_position.pdf

(last visited on Apr. 6, 2014). See also A. Barber, G. Pellow & M. de Pereira, The Sustainability of Brazilian Sugarcane

Bioethanol: A Literature Review, May 2008, available at http://s3.amazonaws.com/zanran_storage/www.eeca.govt.nz/

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