The World Trade Organization, established in 1994 by the Marrakesh Agreement, is often regarded as being detrimental to the efforts of national states in setting up new environmental protection regulations. Additionally, the WTO dispute settlement mechanism is often criticized for considering environmental protection measures as trade barriers and not being justified under the law of the General Agreement on Tariffs and Trade (GATT) e.g. in its famous Tuna - Dolphin cases. On the other hand, the preamble of the WTO Agreements acknowledges that the expansion of production and trade has to permit "the optimal use of the world's resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment". Therefore, it is considered that the objective of the WTO is to establish an equilibrium between free trade and environmental protection.
The first section, contains a brief overview of the general procedure of the WTO dispute settlement mechanism, namely the adjudication of a claim by Panels and the Appellate Body and the implementation of the rulings by the Member States.
The second part will be an analysis of the findings and rulings of the panels and Appellate Body of the following cases: United States — Standards for Reformulated and Conventional Gasoline, United States — Import Prohibition of Certain Shrimp and Shrimp Products, European Communities — Measures Affecting Asbestos and Products Containing Asbestos, Brazil — Measures Affecting Imports of Retreaded Tyres and China — Measures Related to the Exportation of Various Raw Materials to determine whether there has been a development towards more environmental protection. The main focus lies in the interpretation and development of Art. XX of GATT and its use to justify the states' national environmental regulations.
The third section analyses the understanding, implementation and application of the principle of sustainable development within WTO law. An overview of the relationship between Multilateral Environmental Agreements (MEA) and the WTO law will be provided and it will be discussed if the interpretation of the dispute settlement mechanism can promote sustainable development.
Table of Content
Bibliography
I. Introduction
II. The Dispute Settlement Mechanism of the WTO
1. Consultation
2. Adjudication by Panels and the Appellate Body
a. Establishment of a Panel
b. The Panel Procedure
c. Adoption of the Panel's Report
d. Appeal to the Appellate Body
e. Adoption of the Appellate Body's Report
3. Implementation of the Ruling and Countermeasures
a. Implementation of the Ruling and Recommendations
b. Countermeasures
III. Case Law Development in the last 20 Years
1. United States - Standards for Reformulated and Conventional Gasoline
a. Facts
b. The Findings of the Panel
c. The Appellate Body's Findings
d. Conclusion
2. United States - Import Prohibition of certain Shrimp and Shrimp Products
a. Facts
b. Findings of the Panel
c. Findings of the Appellate Body
d. Conclusion
3. European Communities - Measures Affecting Asbestos and Asbestos - containing Products
a. Facts
b. Findings of the Panel
c. Findings of the Appellate Body
d. Conclusion
4. Brazil - Measures Affecting Imports of Retreaded Tyres
a. Facts
b. Findings of the Panel
c. Findings of the Appellate Body
d. Conclusion
5. China - Measures Related to the Exportation of Various Raw Materials
a. Facts
b. Findings of the Panel
c. Findings of the Appellate Body
d. Conclusion
6. Development
IV. Sustainable Development
1. The WTO and Sustainable Development
a. The Understanding of a Sustainable Development in the WTO
b. The Implementation of a Sustainable Development in the WTO
c. The Application of a Sustainable Development by the Dispute Settlement Mechanism
2. Multilateral Environmental Agreements and the WTO
V. Conclusion
Bibliography
Literature*
Abbildung in dieser Leseprobe nicht enthalten
The WTO Case Law Relating to the Protection of the Environment - Has there been a significant development over the last 20 years and does the current system sufficiently take into account the concept of sustainable development?
I. Introduction
The World Trade Organization, established in 1994 by the Marrakesh Agreement, is often regarded as being detrimental to the efforts of national states in setting up new environmental protection regulations. Additionally, the WTO dispute settlement mechanism is often criticized for considering environmental protection measures as trade barriers and not being justified under the law of the General Agreement on Tariffs and Trade (GATT) e.g. in its famous Tuna - Dolphin 1 cases. On the other hand, the preamble of the WTO Agreements acknowledges that the expansion of production and trade has to permit "the optimal use of the world's resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment". Therefore, it is considered that the objective of the WTO is to establish an equilibrium between free trade and environmental protection.2
The first section, contains a brief overview of the general procedure of the WTO dispute settlement mechanism, namely the adjudication of a claim by Panels and the Appellate Body and the implementation of the rulings by the Member States.
The second part will be an analysis of the findings and rulings of the panels and Appellate Body of the following cases: United States — Standards for Reformulated and Conventional Gasoline, United States — Import Prohibition of Certain Shrimp and Shrimp Products, European Communities — Measures Affecting Asbestos and Products Containing Asbestos, Brazil — Measures Affecting Imports of Retreaded Tyres and China — Measures Related to the Exportation of Various Raw Materials to determine whether there has been a development towards more environmental protection. The main focus lies in the interpretation and development of Art. XX of GATT and its use to justify the states' national environmental regulations.
The third section analyses the understanding, implementation and application of the principle of sustainable development within WTO law. An overview of the relationship between Multilateral Environmental Agreements (MEA) and the WTO law will be provided and it will be discussed if the interpretation of the dispute settlement mechanism can promote sustainable development.
II. The Dispute Settlement Mechanism of the WTO
This section will present a brief overview of the WTO dispute settlement mechanism. There are three main stages in the process of a dispute settlement,
- the consultations between the parties,
- the adjudication by Panels and the Appellate Body
- the implementation of the ruling, including the possibility of countermeasures in case the losing party does not abide by the ruling.3
1. Consultation
According to Art. 3.7 of the Dispute Settlement Understanding (DSU)4, the general objective of the DSU is that the Members settle a dispute between themselves, as long as it is consistent with the WTO agreements. A request for a bilateral consultation is the first stage of a formal dispute settlement (Art. 4 of the DSU). The request has to be pursuant to one or more of the covered agreements (Art. 4.3 and 1.1 of the DSU).
The arguing parties engage in confidential consultation (Art. 4.6 of the DSU) to find a suitable solution. If the parties fail to settle the dispute mutually through negotiations, the complainant can request the establishment of a Panel (Art. 4.7 of the DSU).
2. Adjudication by Panels and the Appellate Body
a. Establishment of a Panel
The request for a Panel has to be addressed to the Chairman of the Dispute Settlement Body (DSB)5 by the complainant and has to contain the result of the consultation, identify the specific measures questioned and provide a summary of the legal basis of the complaint (Art. 6.2 of the DSU).6 Only the measures mentioned in the request will be subject to review of the Panel, therefore the request defines and limits the Panel's jurisdiction.7
Other Members can join the dispute before the Panel as third parties if they have substantial interests in the dispute; a third party has the right to make written submissions and be heard by the Panel (Art. 10.2 of the DSU).
A Panel is composed by three or five persons (Art. 8.5 of the DSU), who are proposed by the WTO Secretariat (Art. 8.6 of the DSU), citizens of a disputing Member or third party should not serve on a Panel without the consent of the disputing Members (Art. 8.3 of the DSU).
b. The Panel Procedure
The composed Panel chooses the procedure in accordance with Art. 12.1 of the DSU, but it can adopt additional rules if the specific dispute so requires.8 After establishing a calendar for the Panel's work (Art. 12.3 of the DSU), the exchange of submissions by the disputing parties can begin. The written submissions contain additional facts to define the dispute and legal arguments, which rely on prior jurisprudence of Panels and the Appellate Body.9 After the first submission, the Panel organises hearing, in which the disputing parties present their factual and legal arguments.10 After a period of four weeks, the complainant and the respondent have to present written rebuttals, called the second submission, which is followed by a second hearing.11
Any third party is entitled to file a submission and to present its opinion in a special hearing.12
The Panel reviews all relevant facts and legal arguments to reach a conclusion whether the questioned measure has been in conformity with the covered agreements or not (Art. 11 of the DSU).
The Panel drafts its report in the absence of the parties (Art. 14.1 and 14.2 of the DSU). The report is divided in a first "descriptive part" which contains a summary of all arguments made by the disputing parties, and a second part containing the "findings", being the Panel's reasoning whether the complainant's claim should be upheld or rejected.13 The reasoning is an evaluation of the applicable law on the basis of the submitted evidence by the parties (Art.12.7 of the DSU). In case of non-compliance with the WTO obligations, the report proposes some recommendations to reach conformity (Art. 19.1 of the DSU).
After an interim review of the report (Art. 15 of the DSU), it will be translated in the all official WTO languages (English French and Spanish) and circulated to all WTO Members.14
c. Adoption of the Panel's Report
The report becomes only legally binding, if it is adopted by the DSB.15 Unless one of the disputing parties files an appeal or in the case of a negative consensus, the report has to be adopted (Art. 16.4 of the DSU).
d. Appeal to the Appellate Body
The appeal is limited to legal questions, so the Appellate Body's review of Panel's report covers only issues of law, e.g. the legal interpretation of the agreements by the Panel (Art. 17.6 of the DSU), an appeal cannot be based on new factual evidence.16 Therefore, the Appellate body can uphold, modify or reverse the legal findings and conclusions of the Panel (Art. 17.13 of the DSU). Finally, the Appellate Body drafts a report and gives recommendations and suggestions likewise the Panel (Art. 19 and Art. 26 of the DSU).
e. Adoption of the Appellate Body's Report
The Appellate Body's report must be adopted and unconditionally accepted by the parties, unless there is a consensus in the DSB not to adopt the report (Art. 17.14 of the DSU). Even though the Panel's report is not mentioned in Art 17.14 of the DSU, it is obvious that the Appellate Body's report has to be adopted together with the Panel's report, because one can understand the whole ruling only on the basis of the two reports.17
3. Implementation of the Ruling and Countermeasures
a. Implementation of the Ruling and Recommendations
Art. 21.1 of the DSU states that prompt compliance of the losing party with the ruling of the DSB is necessary to ensure the effectiveness of the dispute resolution system for the benefit of all Members. In case that an immediate compliance with the ruling is not possible, the Member has a reasonable period of time for the implementation (Art. 21.3 of the DSU). The DSB is supervising the implementation of the ruling and recommendations (Art. 2 of the DSU).
b. Countermeasures
In the case that the losing party does not change its measures to reach full compliance with the WTO obligations, the complainant is entitled to take action against the losing party in form of claiming satisfactory compensation or suspending concessions or other obligations (Art. 22 and Art. 3.7 of the DSU). Compensation is not understood as a monetary payment, it is rather a trade benefit, e.g. a tariff reduction offered by the respondent, which is equivalent to the benefit of the respondent by non-complying with the DSB ruling and recommendations.18
If the parties have not agreed on a satisfactory compensation, the complainant may ask the DSB for the authorisation of trade sanctions against the respondent (Art. 22.2 of the DSU). These trade sanctions consist of the suspension of agreed concessions, e.g. in suspending a tariff reduction. Consequently, the complainant is entitled to impose discriminatory countermeasures against the non-complying respondent.19
The countermeasures shall be only in force, as long as the respondent does not comply with the ruling and recommendations (Art. 22.8 of the DSU).
III. Case Law Development in the last 20 Years
The following cases are the leading cases with respect to environmental protection in relation to Art. XX(b) and Art. XX(g) of the General Agreement on Tariffs and Trade (GATT)20.
The relevant part of Art. XX of the GATT provide as follows:
Article XX
General Exceptions
Subject to the requirement that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:
(b) necessary to protect human, animal or plant life or health;
(g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption;
1. United States - Standards for Reformulated and Conventional Gasoline
a. Facts
The case was brought by Venezuela and Brazil against the United States of America, claiming that the regulation promulgated by the Unites States' Environmental Protection Agency from December 15th 1993, "Fuels and Fuel Additives - Standards for Reformulated and Conventional Gasoline"21 ("US - Gasoline Regulation"), based on the 1963 United States Clean Air Act, was contrary to Art. I and III of the GATT and not covered by any of the exceptions under Art. XX of the GATT.22
b. The Findings of the Panel
The Panel ruled that the US - Gasoline Regulation sets higher standards for imported than for domestically refined gasoline, and therefore violates Art. III of the GATT.23
The Panel came after examining Art. XX (b) of the GATT to the conclusion, that, following the definition of "necessity", developed in the Thailand Ciga- rette 24 case, the US - Gasoline Regulation was not "necessary" because of the availability of alternative options,25 so it was not excused under Art. XX (b) of the GATT.
Regarding Art. XX (g) of the GATT, the Panel confirmed that clean air is an "exhaustible natural resource" within the meaning of Art. XX (g) of the GATT, so a policy which aims to reduce air pollution is a policy to conserve natural resource under the meaning of Art. XX (g) of the GATT.26 But following the interpretation of "related to" of the Canada - Herring and Salmon27 case, the Panel pointed out that measures have to be "primarily aimed at" the conservation of the resource. However, the Panel failed to draw the right conclusion28 and found that the "less favourable treatment" of imported gasoline was not primarily aimed at the conservation of the clean air, therefore Art. XX (g) of the GATT was not applicable.29 Instead of referring to the "less favourable treatment" of imported gasoline, the Panel should have reviewed the US - Gasoline Regulation towards the aim of conserving the clean air.30 The Panel concluded that the US - Gasoline Regulation was not justified under Art. XX of the GATT.31
c. The Appellate Body's Findings
The Appellate Body noted that "primarily aimed at" is "not itself treaty language and it was not designed as a simple litmus test for the inclusion or exclusion from Article XX (g)"32 of the GATT, consequently the Appellate Body implied that "relating to" and "primarily aimed at" are not synony- mous.33 Additionally, the Appellate Body overruled the Panel by deciding that the US - Gasoline Regulation was "related to" the conservation of natural resources because of the "substantial relationship"34 between clean air and the regulation on gasoline.35 Also, the Appellate Body added that the clause "if such measures are made effective in conjunction with restrictions on domestic product or consumption" means that an even-handedness approach between foreign producers and the domestic industry, in the imposition of restrictions in the name of conservation of natural resources, is required.36
Although the US - Gasoline Regulation was justified under Art. XX (g) of the GATT, the Appellate Body found that it failed to meet the requirements of the "chapeau" of Art. XX of the GATT, because the United States did not try an available non-discriminating alternative; consequently, the application of US - Gasoline Regulation constituted an "unjustifiable discrimination" and a "disguised restriction on international trade".37
d. Conclusion
In conclusion, there had been three significant findings towards environmental protection.
The treatment of clean air as a "natural resource" under Art. XX (g) of the GATT38 was consistent which previous decisions such as ruling of Canada - Herring and Salmon case and the United States - Restrictions on Import of Tuna 39.
The Appellate Body regarded the violation of Art. III of the GATT by US - Gasoline Regulation as being excused as an environmental protection measure under Art. XX (g) of the GATT, even though it did not meet the requirements of the "chapeau".40
The Appellate Body stated that its ruling "[does not] imply, that the ability of any WTO Member [..] to protect the environment, is at issue. [...] WTO Members have a large measure of autonomy to determine their own policies on the environment [...[and] that autonomy is circumscribed only by the need to respect the requirements of the General Agreement and covered agreements."41 Nevertheless, some regarded the ruling as a sign for the hostility of the GATT to environmental protection.42
2. United States - Import Prohibition of certain Shrimp and Shrimp Products
a. Facts
The case was brought by India, Malaysia, Pakistan and Thailand against the United States of America, alleging that the regulation of "Section 609" and its implementing measures, based on the 1973 United States Endangered Species Act, which ban the import of shrimp, harvested by fishermen of countries which do not comply with the "Section 609" regulation (especially not using a Turtle Excluder Device ("TED"))43 were contrary to Art. XI:1 and XIII:1 of the GATT and were not covered by the exceptions under Art. XX (b) and Art. XX (g) of the GATT.44
b. Findings of the Panel
The Panel concluded that the "Section 609" regulation violated Art. XI:1 of the GATT, which was not disputed by the United States.45 The Panel stated that Art. XX of the GATT permits Members only to derogate from its GATT obligations, if the measure does not undermine the multilateral trading system; the trading system would be undermined, if the guaranteed market access was no longer possible due to the implementation of the measure.46 The Panel confirmed the significant decision that it is not allowed under WTO law to discriminate among like products on the base of how they are produced.47 In short, the United States cannot justify the violation of its "Section 609" regulation with Art. XX of the GATT.
c. Findings of the Appellate Body
The Appellate Body ruled that sea turtles are an "exhaustible natural resource" and that, following the decision of the United States - Gasoline case48, the "Section 609" regulation is classified as a policy to conserve an exhaustible natural resource under Art. XX (g) of the GATT, because there is a "substantial relationship" between the "Section 609" regulation and the conservation of the sea turtles.49
The Appellate Body underlined that the Panel failed in its understanding of Art. XX of the GATT, namely by reviewing if a measure "undermine[s] the WTO multilateral trading system"50 to decide whether Art. XX of the GATT is applicable or not.51 The Appellate Body acknowledged that the multilateral trading system is a fundamental premise of the WTO Agreement, but it emphasized that this premise is not an interpretative rule to determine whether a measure is falling within the scope of Art. XX of the GATT.52 The Appellate Body pointed out that these findings of the Panel resulted from the fact, that the Panel disregarded the sequence of steps which is essential to examine a measure under Art. XX of the GATT.53 The Appellate Body stated that, given the special circumstances of this case, a "sufficient nexus" exists between the migratory sea turtles and the United States, so that the United States can invoke Art. XX (g) of the GATT.54
Nevertheless, the Appellate Body concluded that the "Section 609" regulation does not meet the requirements of the "chapeau" of Art. XX of the GATT, therefore it constituted "unjustifiable discrimination between countries were the same conditions prevail"55 and an "arbitrary discrimination"56. More specifically, it was a failure in the implementation itself because certain requirements contained in the "Section 609" regulation were not imple- mented,57 but the law itself was consistent which the provisions of Art. XX (g) of the GATT.58 Furthermore, the Appellate Body clarified its understanding of the chapeau of Art. XX of the GATT and stated that it makes clear that the paragraphs (a) to (j) of Art. XX are "limited and conditional" exceptions from the substantive obligations contained in the WTO Agreements.59 Moreover, the Appellate Body added that the chapeau is an expression of the principle of good faith in international law and a safeguard against the abus de droit, which prohibits the abusive exercise of rights by a Member which would lead to a breach of the treaty rights of the other Members.60 Additionally, the Appellate Body pointed out that the failure of the United States to engage in multilateral negotiation with shrimp exporting nations to protect the sea turtles was a strong evidence for an unjustifiable discrimination.61
d. Conclusion
There had been certain remarkable findings in this case.
The Appellate Body defined "exhaustible natural resource" in the meaning of Art. XX (g) of the GATT in that manner, that it can be applied to living and non-living resources and added that this term should be interpreted broadly in accordance with current environmental protection conventions.62 As a result of that ruling, the GATT and other WTO agreements must be interpreted in the light of achieving the goal of sustainable development, laid down in the preamble.63 The application of Art. XX (g) of the GATT on the migratory sea turtles, which did not stay solely in the jurisdiction of the United States can be interpreted in that way, that Art. XX (g) of the GATT does apply for every exhaustible resource without a distinction if it is a domestic resources or resources beyond the national jurisdiction.64
The Appellate Body fully approved with the "Section 609" regulation a trade restraint on the basis of environmental protection purposes under Art. XX (g) of the GATT; the problem in this case was only its application.65 Remarkably, the Appellate Body stated that the "even-handedness"66 clause, developed in the U.S. - Gasoline case was fulfilled, because the United States required all trawlers to use TEDs.67 As a consequence, it seems more probable that a multilateral or unilateral treaty that contains trade restrictions and which is implemented mutually, would be upheld by the WTO.68
The Appellate Body approved the principle of including non-product-related process and production methods (PPMs) as a factor in environmental lawmaking by overruling the Panel's decision69 and accepting the regulation of the harvesting methods of shrimp.70
Finally, the decision of the Appellate Body shows that environmental protection is considered as a component of trade law, rather than an external threat,71 by promoting an integrational process of environmental law and trade law towards developing international law of sustainable development.72 However it can be argued, that the statement of the Appellate Body for a longer "phasein" period to permit non-complying Members to seek and develop alternative export markets73, is a step back from sustainability as a goal and towards the pre-1994 goal of the full resource utilization.74
3. European Communities - Measures Affecting Asbestos and Asbestos - containing Products
a. Facts
This case was brought by Canada against the European Communities claiming Decree No. 96-113375, enacted by the French government, which banned the import of asbestos fibres, was a restriction or prohibition in the meaning of Art XI:1 and contrary to the provisions of Art III:4 of the GATT because it favours national like products.76
b. Findings of the Panel
The Panel concluded that Decree No. 96-1133 violated Art III:4 of GATT.77 Reviewing the application of Art. XX (b) of the GATT, the Panel acknowledged that asbestos fibres were internationally classified as carcinogens78, so that the Decree No. 96-1133 falls within the range of policies to protect human life or health within the meaning of Art. XX (b) of the GATT.79 Examining the "necessity" of Decree No. 96-1133, the Panel found that, considering the proven high risk to public health by asbestos fibres, there are no alternatives to banning the substance to meet France's high health objec- tives.80 Additionally the high objectives of France's health policy cannot be questioned by the Panel.81
Finally, the Panel decided that Decree No. 96-1133 is justified under Art. XX (b) of the GATT.82
c. Findings of the Appellate Body
The Appellate Body overruled the Panel's decision and decided that Decree No- 96.1133 does not violate Art. III: 4 of the GATT.83
While examining the "necessity", the Appellate Body referred to its judgements of the Korea - Beef case84, and stated that, during the process of weighing and balancing to determine if a WTO- consistent alternative measure is reasonably available, it is crucial how much the alternative measure would contribute to achieving the pursued political goal.85
In conclusion, the Appellate Body upheld the Panels finding that of Decree No. 96-1133 is justified under Art. XX (b) of the GATT and stated that "it is undisputed that WTO members have the right to determine the level of protection of health that they consider appropriate in a given situation."86 Finally, the Appellate Body confirmed the Panel's decision that Decree No. 96-1133 is consistent with the WTO law and covered agreements.87
d. Conclusion
The Panel's decision of the consistency of Decree No.96- 1133 with the WTO law, was the first time in history of the WTO that an environmental protection measure was considered justified under Art. XX (b) of the GATT.88
To determine if Decree No. 96- 1133 violated Art. III: 4 of the GATT, the "likeness" of products had to be examined. The Appellate Body referred89 to four general criteria to analyse the "likeness": (i) the properties, nature and quality of the products; (ii) the end-uses of the products; (iii) consumers' tastes and habits; and, (iv) the tariff classification of the products.90 The Panel decided that, in the light of the WTO Agreement as an economical agreement, it is not appropriate to apply health risk as a criterion to determine likeness91 and therefore there had been a violation of Art. III: 4 of the GATT. This interpretation of the "likeness" of products by the Panel was driven by market access considerations.92 It raised especially concerns, because the Panel came to this conclusion, knowing about the carcinogenicity of asbestos.93 However, examining the Panel's findings, the Appellate Body pointed out that the Panel failed to apply the criteria correctly94 and overruled that decision by concluding that carcinogenicity is a property of a product and consequently a main factor in determining the likeness.95 More specifically, in this case, asbestos fibres are different to PCG (polyvinyl alcohol, cellulose and glass)96 fibres because of their significantly higher danger to human health.97 In short, the Appellate Body stated that health risks should be generally included in the determination of likeness.98
Taking the principle of PPMs in account,99 it is important to note that two products with different PPMs have to be in a competitive relationship and based in part on the four factors of "likeness"100 to be considered "like".101 In addition, the Appellate Body ruled that the claimant carries the burden of proof of a competitive relationship.102
Regarding the "necessity" of the measure, the Appellate Body applied the "necessity" test which was developed in the Thai Cigarettes103 and Korea Beef cases. This test notes that a measure is not necessary if (i) an alternative measure exists; (ii) it is reasonable to expect the importing country to use the alternative measure; (iii) the alternative measure is consistent or less inconsistent with the GATT provisions and (vi) the alternative measure would achieve the same goal as the measure at issue.104 In addition, the Appellate Body stated that "weighing and balancing" is required105 to take the importance of the values at stake into account.106 Precisely, it noted that, "[t]he more vital or important [the] common interests or values" pursued by the policy are, the easier it would be to accept these measures as "necessary"".107 The Appellate Body concluded that the preservation of human life and health is vital and important to the highest degree,108 and that any alternative measure would have prevented France from achieving that goal.109 With this approach, the Appellate Body introduced a certain type of proportionality test which led to a broader recognition of the states' s regulatory autonomy towards the protection of the environment.110
4. Brazil - Measures Affecting Imports of Retreaded Tyres
a. Facts
This case was brought by the European Communities claiming that Brazil violated:
(a) Art. XI:1 of the GATT by establishing a prohibition or restriction on the import of retreaded tyres and Art. XI: 1 and/or Art. III:4 of the GATT by imposing a fine of 400 BRL for the importation, transport, storage, or keeping in deposits of retreaded tyres.
(b) Art. I:1 of the GATT by eliminating the ban and the fine for retreaded tyres for MERCOSUR111 countries while maintaining these measures for non- MERCOSUR countries.112
b. Findings of the Panel
The Panel found that the measures restricting the trade with retreaded tyres, (SECEX 14/2004 and DECEX8/1991 promulgated by the Brazilian legislature) violated Art. XI:1 of the GATT.113 Additionally, the fines imposed for violating the import ban were illegal under Art. XI:1 of the GATT.114 While examining if the measures could be justified under Art. XX (b) of the GATT, the Panel acknowledged that the accumulation of waste tyres impose a risk to human life and health115 within the meaning of Art. XX (b) of the GATT.116 In consequence, the policy of reducing this threat to human life and health falls within the scope of Art. XX (b) of the GATT.117 Nevertheless, the Panel found that neither the import ban was justified under Art. XX (b) of the GATT because its application constituted a unjustifiable discrimination and a disguised restriction to trade within the meaning of the chapeau of Art. XX118 nor the fines.119
Concerning the possible violation of Art. I:1 of the GATT120, the panel decided, in the light of its findings of the violation of Art. XI:1 of the GATT, to exercise judicial economy., so it did not examine that claim.121
c. Findings of the Appellate Body
Considering the necessity under Art. XX (b) of the GATT, the Appellate Body upheld the Panel's decision that the import ban was necessary to protect human life and health.122 The measure reduced the accumulation of waste tyres because these tyres were replaced by new tyres, which had a longer lifespan,123 while waste tyres impose a threat to human life and risk.124 Furthermore, the Appellate Body pointed out that a quantified evaluation of the importance of the measure towards the achievements of the objective is not necessary, because, referring to the EC - Asbestos case "a risk may be evaluated either in quantitative or qualitative terms125 ".126
Examining the chapeau of Art. XX of the GATT, the Appellate Body overruled the Panel's decision and found that the application of the import ban of retreaded tyres in conjunction with the exemption for MERCOSUR states constituted an arbitrary or unjustifiable discrimination.127
d. Conclusion
It is notable that the Panel applied the EC - Asbestos 128 decision by deciding that a policy that seeks to reduce the risk to human life or health, falls in general under Art. XX (b) of the GATT.129
While examining the necessity of the measures under Art. XX (b) of the GATT, the Appellate Body developed its definition of necessity and noted that there are three key elements, which all require a weighing and balanc- ing.130
- the importance of the values at stake matters131 and the Appellate Body stressed that "the fundamental principle is the right that WTO Members have to determine the level of protection that they consider as appropriate in a given context."132
- the contribution of the measure to achieve the aim must be material and it has to be weighed against its trade restrictiveness.133
- reasonable available alternatives have to be examined.134
For the application of the weighing and balancing test the Appellate Body was criticized. It was argued that the Appellate Body acted incoherently, so that the States are unsure, which measures may be justified or unjustified under GATT law.135 Furthermore, the development from the understanding of "necessary" as the least treaty-inconsistent alternative reasonably available from the EC - Asbestos case towards a more balanced approach is considered as the failure of the Appellate Body to clarify its interpretation of Art. XX of the GATT to provide legal security for the Member States.136
In contrast to the previous view, the balancing approach of the Appellate Body could be seen as a way to give the States, on one hand the highest regulatory autonomy as possible (for. e.g. environmental protection), which is supported by the acceptance of a zero risk policies137, and on the other hand the possibility of the Appellate Body to root out haphazardly set risk levels.138 The weighing and balancing test can be seen as well as bringing all relevant variables to the table and provide a better balance between trade liberalization and national regulatory autonomy than before.139
The Appellate Body relied for its decision to classify the import ban with an exemption for MERCOSUR States as an arbitrary or unjustifiable discrimination under the chapeau of Art. XX of the GATT, on two arguments.
- a measure constitutes an arbitrary or unjustifiable discrimination if the discrimination is applied between countries where the same conditions prevail and
- if the reasons for the discrimination fall against the objective pursued by the measure.140
Notably, the Appellate Body found that the ruling of the MERCOSUR tribunal, which lead to the exemption for MERCOSUR countries, was not an acceptable rationale for the discrimination because the exemption goes against the objective of Brazil to reduce the amount of waste tyres.141 In conclusion, the Appellate Body followed its developments made in the US - Gasoline and US -Shrimp cases towards the application of the chapeau of Art. XX of the GATT.142
5. China - Measures Related to the Exportation of Various Raw Materials
a. Facts
This case was brought by the European Union, the United States and Mex- ico,143 claiming that China violated with an overall of 63 measures144 concerning the export of nine types of raw materials145 its obligation under the GATT law.
b. Findings of the Panel
The Panel found that China violated with its measures restraining the export of raw materials Art. X:1, X:3(a) and Art. XI:1 of the GATT as well as Paragraphs 1.2, 5.1 and 11.3 of its Accession Protocol.146
Next, the Panel examined whether China could invoke Art. XX of the GATT to justify its violation of the Accession Protocol.
Paragraph 11.3. of China's Accession Protocol provides:147
"China shall eliminate all taxes and charges applied to exports unless specifically provided for in Annex 6 of this Protocol or applied in conformity with the provisions of Article VIII of the GATT 1994."
The Panel concluded that the "deliberate choice of languages [...] suggest to us that [...] China did not intend to incorporate into Paragraph 11.3 the defences set out in Article XX of the GATT 1994."148 and decided that China cannot invoke the provisions of Art. XX of the GATT to justify its violation of the Accession Protocol.149
Furthermore, concerning the violation of Art. XI:1 of the GATT by the export quota of refractory-grade bauxite, the Panel examined the justification under Art. XX (g) of the GATT, and decided that it is not justified.150
c. Findings of the Appellate Body
The Appellate Body reversed the Panel's finding towards Art. XX (g) of the GATT and clarified, relying on the U.S. - Gasoline decision, that "Article XX(g) permits trade measures relating to the conservation of exhaustible natural resources if such trade measures work together with restrictions on domestic production or consumption, which operate so as to conserve an exhaustible natural resource."151 However, the Appellate Body confirmed the decision of the Panel that the Chinese export restraints violated its Accession Protocol and were not justified under Art. XI:2 (a) of GATT.152
d. Conclusion
The modest clarification of the Appellate Body towards Art. XX (g) of the GATT is considered to be useful for further application,153 although it did not change the entire ruling.
The ruling on the non - applicability of Art. XX of the GATT exceptions to justify the violation of the Accession Protocol raised criticism. It was argued that the sovereignty of developing States over its natural resources, (e.g. China), would be limited by prohibiting the restriction of exports under WTO law.154 Particularly, the conclusion of the Appellate Body that "in the light of China's explicit commitment contained in Paragraph 11.3 to eliminate export duties and the lack of any textual reference to Article XX of the GATT 1994 in that provision, we see no basis to find that Article XX of the GATT 1994 is applicable to export duties found to be inconsistent with Paragraph 11.3"155 is considered to be "narrow textualist approach"156 and referring to Art. 32 of the Vienna Convention on the Law of Treaties (VCLT)157 it was claimed the VCLT demands a broader contextualist approach on the interpretation of trea- ties.158 Consequently, the ruling is regarded as "highly irrational and undesirable".159 Furthermore, some fear that "China has to share its mineral resources with the world"160 while other believe that the ruling is a change of WTO judiciary towards an absolute prioritisation of trade-liberalization.161 However it is recognised that even in the case of the applicability of Art. XX of the GATT, the Chinese's measures would not have been justified because neither China imposed the same restrictions on the domestic consumption (provision of Art. XX (g) of the GATT) nor the export restraints would have been classified to protect public health (provision of Art. XX (b) of the GATT).162
In conclusion, the single outcome of this ruling is that it might serve in the future as a precedent for the justification of similar measures, depending if the necessary requirements will be fulfilled.163
6. Development
First and foremost, the U.S. - Gasoline case led to the acceptance of air as an exhaustible natural resource within the meaning of Art. XX (g) of the GATT164 which permitted a broader application of the Article. The interpretation of the Appellate Body that a measure has to be only in a "substantial relationship" with the conservation and does not have to be "primarily aimed at" meeting the requirement of "relating to the conservation of exhaustible natural resource "165 supports that view. In addition, the Appellate Body developed the criterion of "even - handedness" to interpret the clause of " if such measures are made effective in conjunction with restrictions on domestic product or consumption" of Art. XX (g) of the GATT, which demands that restrictions are not only imposed on imported goods but also on domestic ones.166 Nevertheless the Appellate Body found the US - Gasoline Regulation being inconsistent with the GATT, but it stated that Member States have the autonomy to determine their own policies towards environmental protection.167
In the U.S. - Shrimp case, the Appellate Body extended its interpretation of "exhaustible natural resources" and stressed that it can be applied on living and non-living resources.168 In addition, the Appellate Body found that the interpretation should be applied in accordance with current environmental protection conventions169, which obviously broadens the range of application even more. Another remarkable aspect is that the Appellate Body decided that the regulation itself is justified under Art. XX (g) of the GATT, only its application did not meet the requirements of the chapeau of Art. XX.170 Equally important, the Appellate Body accepted with its ruling on the regulation of harvesting methods of shrimp, that non-product-related process and production methods (PPMs) are part of environmental regulation.171 The application of Art. XX (g) of the GATT can be interpreted so as apply to resources beyond national jurisdiction as well, as long as a sufficient nexus between the resource and the Member State exists.172
In the EC - Asbestos case, the PPMs played again an important role, as the Appellate Body overruled the Panel's decision and found that the carcinogenicity is a property of asbestos fibres and therefore a significant factor to determine the likeness of products under Art. III of the GATT.173 Consequently, health risks of a product should be generally included in the determination of likeness.174 However, it is important to point out that PPMs are not recognised as a justification for e.g. an import restriction; its importance is solely based on the determination of the likeness of products.175 Another significant development was the application of a "weighing and balancing" approach by the Appellate Body to determine whether a measure is "necessary" within the meaning of Art. XX (b) of the GATT.176 The reason was clearly to take the importance of the values at stake into account, and the Appellate Body noted that"[t]he more vital or important [the] common interests or values" pursued by the policy are, the easier it would be to accept these measures as "necessary"".177
In the Brazil - Retreaded Tyres case, the Appellate Body confirmed its ruling in EC - Asbestos and pointed out, concerning risk to "human life and health" of Art. XX (b) of the GATT that the risk can be evaluated either in quantitative or qualitative criteria,178 so there is no empirical evidence needed to qualify a policy under Art. XX (b) of the GATT. In addition, the Appellate Body clarified its interpretation of the "weighing and balancing" and introduced a three step test. The values at stake are important, the contribution of the measure must be weighed against its trade restrictiveness and reasonably available alternatives have to be taken in consideration.179 Notably, the Appellate Body pointed out again that "the fundamental principle is the right that WTO Members have to determine the level of protection that they consider as appropriate in a given context."180 As a result of its vagueness, the Appellate Body was criticized for this weighing and balancing approach, but its clear advantage is that it permits the Appellate Body to give the Member States the highest regulatory autonomy possible (towards e.g. environmental protection) while keeping the option to outlaw arbitrary regulations.181 Lastly, the Appellate Body rejected the ruling of the MERCOSUR tribunal as a rational to justify the arbitrary or unjustifiable discrimination of the measure within the examination of the chapeau of Art. XX of the GATT and clarified which reasons are acceptable for a discrimination.182
In the China - Raw Materials case, the Appellate Body ruled on the applicability of Art. XX of the GATT to justify violations of the Accession Protocol,183 which could be important for certain developing countries,184 and clarified a provision of Art. XX (g) of the GATT.185
In the overall conclusion, the development of the jurisprudence of the Panels and Appellate Body extended the scope of application of Art. XX (b) and Art. XX (g) of the GATT and opened its protection to a greater number of environmental regulations. The Appellate Body has clearly recognised the autonomy of Member States to choose their own policies and levels of protection. However, the Appellate Body has remained strict in the application of the chapeau of Art. XX of GATT towards arbitrary and unjustifiable discrimination and disguised restrictions on international trade to prevent the abuse of environmental protection regulations by the Member States for protectionist purposes.
IV. Sustainable Development
To answer the question whether the system of the WTO meets the needs of a sustainable development, the relationship between the WTO law and a sustainable development has to be examined.
Secondly, the compatibility of the WTO law and Multilateral Environmental Agreements (MEA) has to be clarified.
1. The WTO and Sustainable Development
The WTO Preamble states that its objective is "[...] expanding the production of and trade in goods and services, while allowing for the optimal use of the world's resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment [...].186 " and the WTO Director-General Pascal Lamy remarked that "Sustainable development should be the cornerstone of our approach to globalization and to the global governance architecture that we create."187 According to the Appellate Body, the preamble "gives colour, texture and shading to the rights and obligations of Members under the WTO Agreement".188 These clear statements of the WTO raise the question of the definition of "Sustainable Development" and its implementation and application within the WTO.
a. The Understanding of a Sustainable Development in the WTO
In international public law, there is no official definition of "Sustainable development", but there are two main approaches which are suffiently specified to serve as a definition.189
The first one was developed in the Brundtland Report and states that sustainable development "meets the needs of the present without compromising the ability of future generations to meet their own needs."190
The second definition came up in the "World Summit on Sustainable Development: Plan for Implementation" in 2002 and described sustainable development as being consistent of economic development, social welfare and environmental protection.191
However, the WTO- Director Pascal Lamy confirmed the core of both definition as being part of the WTO objectives by stating: "In common usage, the term ‘sustainable development' means securing a growth path that provides for the needs of the present generation without compromising the ability of future generations to meet their own needs. From a policy perspective, the pursuit of sustainable development requires a careful balancing between progress in each of its pillars: policies designed to advance economic development, for instance; to conserve the environment, and to ensure social progress."192
Although, it is significant that it is the understanding of the WTO that the objectives of trade liberalization and sustainable development are mutually supportive.193 Furthermore, it appears that free trade is the means to achieve the objective of sustainable development, by creating more wealth which could be (especially in developing countries) used to improve environmental protection.194 Though, the governments of developing countries still remain hesitant to spend trade revenues on environmental protection.195
Despite the statements of Director Lamy and the mentioning of sustainable development in the preamble, it is noteworthy that preambular language is not legally binding and sustainable development remains a broad principle,196 and is not included in Art. XX of the GATT as an exception.197 At the time, the new preamble was introduced, few thought that such preambular language would have any legal significance.198 b. The Implementation of a Sustainable Development in the WTO Within the WTO law exist certain agreements and committees concerning environmental issues but this paragraph will solely provide a brief overview of the Committee on Trade and Environment (CTE)199, the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement)200 and the Agreement on Technical Barriers to Trade (TBT Agreement)201.
The Committee on Trade and Environment was permanently established by a Ministerial Decision and its task is to monitor trade and environment is- sues.202 To state precisely, the CTE should bring sustainable development and environmental concerns into WTO policy to provide a better understanding of the relationship between trade and environment in the context of international law.203 To fulfil its task, the CTE presents recommendations on how to improve the relationship between trade and environment204 in its Annual Report. Another aspect of the CTE's work is the provision of a platform for the exchange of information between national civil servants from the ministries of the trade and environment, representatives from MEAs, the United Nation Environment Programme (UNEP)205 and trade officials.206 However, some claim that the achievements of the CTE have been modest,207 while others point out that the work of the CTE have raised the awareness and acceptance for environmental issues within the WTO.208
Even if the CTE's work is criticised, the value of such an information exchange, and mutual socialization between the representatives of different institutions should not be underestimated.209
The TBT Agreement regulates the subject of technical regulations, standards and conformity assessment procedures and ensures that such regulations are non-discriminatory and not unnecessary obstacles to international trade.210 Therefore, the TBT Agreement establishes rights and obligations for the Member States.211 In Art. 2.2 of the TBT Agreement, it recognises the "protection of human health or safety, animal or plant life and health or the environment" as legitimate objectives to introduce new regulation, as long as they are "not more trade-restrictive than necessary". Topics of international trade, which are subject to regulation to protect the human health and environment, are for example nutrition labelling, toy safety, tobacco products packaging and certification of food products.212 The Committee on Technical Barriers to Trade develops recommendation for a better implementation of the TBT Agreement,213 which are published in its Annual Report214.
The SPS Agreement deals with food related risk for humans and animals and with the risk for humans, which arises from diseases and pests.215 More specific, Art. 2.1 of the SPS Agreement recognises that the Member States "have the right to take sanitary and phytosanitary measures necessary for the protection of human, animal or plant life or health", even though these measures "shall [ ] [be] applied only to the extent necessary [...] [and] based on scientific principles [...]" (Art. 2.2 of the SPS Agreement). Additionally, the measures should not "arbitrarily or unjustifiable discriminate between Members, where identical or similar conditions prevail [...]" (Art. 2.3 of the SPS Agreement).
The Committee on Sanitary and Phytosanitary Measures prepares an Annual Report with recommendations on the implementation of the SPS Agree- ment,216 and provides a mediation procedure for Member States to settle their differences on SPS measures.217 Although the results of the mediation are not legally binding, it could prevent a long and expensive procedure before the WTO dispute settlement mechanism.218
In conclusion, the TBT and the SPS Agreements are a compromise between the demand of the Member States for certain regulatory freedom to tackle e.g. environmental issues within their national territories and the protection of the free trade from national protectionism. As a tool to achieve these aims, the Member States identified science and internationally established standards.219 In addition, it is significant to point out that the majority of Member States (mainly developing countries) has been resistant in implementing the concept of sustainable development as a legal principle in the WTO, because of the fear that sustainable development might interfere with their economic devel- opment.220 221 Therefore, the work of the CTE, composing e.g. the proposition of recommendations, can be seen as a pragmatic approach to tackle that sensitive issue.
c. The Application of a Sustainable Development by the Dispute Settlement Mechanism
In general, the dispute settlement mechanism provides clarity of the application of WTO provisions due to its interpretation of the WTO law.222 Furthermore, because of the complexity of negotiations within the WTO, the Member States delegated the power of interpreting the WTO law to the WTO dispute settlement mechanism and therefore it effectively creates new WTO law223 concerning environmental issues among others.
As the analysis of the five cases has shown,224 there has been a positive development within the case law of the WTO settlement mechanism towards environmental protection. Nevertheless, there has not been one single case about a measure whose primary objective was sustainable development.225 If a trade restricting measure, which claims to aim at sustainable development, would be violating WTO law or not, still remains open.
2. Multilateral Environmental Agreements and the WTO
The members agreed at the United Nations Conference on Environment & Development in Rio de Janerio 1992 that the "challenge is to ensure that trade and environment policies are consistent and reinforce the process of sustainable development."226.
The Appellate Body followed this approach and ruled that "the General Agreement is not to be read in clinical isolation from public international law"227 and showed its preference for multilateral cooperation of the Member States to achieve environmental protection.228 So the relationship between the WTO law and MEA's has to be examined. This is particularly important to avoid a "chill effect" on further MEA's.229
The necessity of MEAs to integrate certain trade-related environmental measures (TREMs) within its obligations (for example the prohibition import and export of certain goods) to ensure the implementation of its environmental protection objectives, is obvious.230 To name three important MEAs with TREMs, (i) the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)231 which restricts the trade with species in danger of extinction, (ii) the Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol)232 which restricts the import of all controlled substances and (iii) the Basel Convention on the Control of Hazardous Wastes and their Disposal (Basel Convention)233 which allows the import ban of certain hazardous wastes.234 However no MEA was challenged under the WTO dispute settlement mechanism yet,235 certain TREMs could be subject to disputes under the DSB.236 To avoid these problems, some negotiators of MEAs, e.g. for CITES, engaged in a cooperation with the Secretary of the GATT to ensure that the TREMs of CITES are consistent with the WTO law.237 Also the Montreal Protocol is regarded to fall under Art. XX (b) of the GATT.238
Concerning the relationship of the DSB and MEAs, it remains controversial whether the forum for a dispute about a TREMs would be the DSB or the dispute settlement mechanism available under MEA in question,239 or even an independent arbitrational court like the International Court of Justice240.241 This depends on the arguing Member states, being both members of the MEA in question.242
In conclusion, it is necessary that the DSB pursues clarifying and advancing the principles of environmental protection and sustainable development, laid down in the WTO Agreements and institutions and concerning the statement of the Appellate Body in the United States - Shrimp case243, some claim that it seems likely that the DSB will recognise the legitimacy of a MEA in a future dispute.244
V. Conclusion
There have been three significant developments within the case law of the WTO dispute settlement mechanism towards environmental protection.
1. The recognition of living and non- living resources as a "exhaustible natural resource" within the meaning of Art. XX (g) of the GATT has opened this article to a broad variety of different environmental protection measures.245 The implied jurisdiction beyond national territory if a sufficient nexus exists, supports that development.
2. The acceptance of PPMs as part of the "likeness" within the meaning of Art. III of the GATT, allows to distinguish between products, based on its production246 or its health risks247.
3. The "weighing and balancing" approach of the Appellate Body to determine the "necessity" within the meaning of Art. XX (b) of the GATT, has given the Appellate Body the possibility of taking the values at stake into account and reserving the Member States the highest regulatory autonomy while keeping the option to outlaw arbitrary regulations.248
Nevertheless, the Appellate Body remained strict in the application of the chapeau of Art. XX of the GATT to defend the free trade against protectionism.
To determine whether the system meets the needs of sustainable development, certain factors have to be examined.
Although, the mention of sustainable development in the preamble of the WTO law as an objective and the clear statements of the WTO Director Lamy, it still remains a legally non- binding principle. Taking the strong resistance of the majority of WTO Member States into account, it is unlikely, that sustainable development will become a legally binding principle of the WTO law. Due to this, the possible actions of the CTE are limited. The implementation of the SPS Agreement and TBT Agreement gives the Member states a greater regulatory freedom, concerning environmental measures.249
The relationship between the MEAs which contain TREMs and the WTO law will need further examination, especially its interpretation by the DSB. However, it is important to stress that due to the cooperation of the MEA negotiators with the WTO Secretary, certain MEAs have the approval of the consistency with the WTO law of their TREMs.250
The Appellate Body enabled the WTO system to develop into a balanced system which accepts the necessity of environmental protection, but is restrained in its role as a watch dog to prevent protectionism.251
[...]
1 United States-Restrictions on Imports of Tuna, 39 GATT BISD 155 (1993), reprinted in 30 ILM 1594 (1991); United States-Restrictions on Imports of Tuna, DS29/R (1994), reprinted in 33 ILM 839 (1994).
2 Matsushita/Schoenbaum/Mavroidis/Hahn, The World Trade Organization Law, Practice, and Policy, p.717.
3 WTO Secretariat, A Handbook on the WTO Dispute Settlement System, p. 43.
4 Dispute Settlement Understanding: Understanding on Rules and Procedures Governing the Settlement of Disputes, Annex 2. https://www.wto.org/english/docs_e/legal_e/28-dsu.pdf (last date: 29.09.2016).
5 Dispute Settlement Body, (Art. 1.2 of the DSU) is composed of representatives of all WTO Members, it is a political body with the task of overseeing the entire dispute settlement process. WTO Secretariat, A Handbook on the WTO Dispute Settlement System, p. 17.
6 WTO Secretariat, A Handbook on the WTO Dispute Settlement System, p. 48.
7 Ibid., p. 48.
8 Ibid., p. 53.
9 Ibid., p.54.
10 Ibid., p. 55.
11 Ibid., p.56.
12 Ibid., pp.54,55.
13 WTO Secretariat, A Handbook on the WTO Dispute Settlement System, pp. 56, 57.
14 Ibid., p. 59.
15 Ibid., p. 61.
16 Ibid., p.66.
17 Ibid., p. 75.
18 WTO Secretariat, A Handbook on the WTO Dispute Settlement System, p. 80.
19 Ibid., p. 81.
20 https://www.wto.org/english/docs_e/legal_e/gatt47_e.pdf (04.10.2016).
21 For a more detailed description: Report of the Panel, United States - Standards for Reformulated and Conventional Gasoline, adopted on 29 January 1996, para: 2.1-2.12.
22 Ibid., para: 3.1.
23 Bhala, Modern GATT Law, pp. 288,289, para. 52-049.
24 Report of the Panel,Thailand - Restrictions on Importation of and internal Taxes on Cigarettes, adopted on 7 November 1990, para. 75.
25 Report of the Panel, United States - Standards for Reformulated and Conventional Gasoline, adopted on 29 January 1996 para: 6.22-6.29.
26 Ibid. para. 6.37.
27 Report of the Panel, Canada - Measures Affecting Exports of unprocessed Herring and Salmon, adopted on 22 March 1988. para. 4.4.
28 Report of the Appellate Body, United States - Standards for Reformulated and Conventional Gasoline, adopted on 29 April 1996, p.16.
29 Report of the Panel, United States - Standards for Reformulated and Conventional Gasoline, adopted on 29 January 1996, para. 6.40.
30 Report of the Appella te Body, United States - Standards for Reformulated and Conventional Gasoline, adopted on 29 April 1996, p.16.
31 Report of the Panel, United States - Standards for Reformulated and Conventional Gasoline, adopted on 29 January 1996, para. 8.1.
32 Ibid. p. 19.
33 Bhala, Modern GATT Law, p. 290, para. 52-053.
34 Report of the Appellate Body, United States - Standards for Reformulated and Conventional Gasoline, adopted on 29 April 1996, p. 19.
35 Bhala, Modern GATT Law, p. 291, para. 52- 054.
36 Report of the Appellate Body, United States - Standards for Reformulated and Conventional Gasoline, adopted on 29 April 1996, p. 21.
37 Ibid. p.29.
38 See: III,1,b.
39 See also the same conclusion with respect to dolphins in the Report of the Panel on "United States - Restrictions on Imports of Tuna", circulated on 16 June 1994, DS29/R, para 5.13, not adopted.
40 See: III, 1, c.
41 Report of the Appellate, Body United States - Standards for Reformulated and Conventional Gasoline, adopted on 29 April 1996, p. 30.
42 Bhala, Modern GATT Law, p. 295, para. 52-065.
43 For more detailed information: Report of the Panel, United States - Import Prohibition of certain Shrimp and Shrimp Products, adopted on 15 June 1998, para: 2.1-2.16.
44 Ibid. para. 3.1.
45 Ibid. para. 7.17.
46 Bhala, Modern GATT Law, p. 299, para. 52-075.
47 Ibid. p. 300, para. 52-075.
48 See: United States - Standards for Reformulated and Conventional Gasoline, III, 1.
49 Report of the Appellate Body, United States - Import Prohibition of certain Shrimp and Shrimp Products, adopted on 12 October 1998, para: 141.
50 See: III, 2, b.
51 Report of the Appellate Body, United States - Import Prohibition of certain Shrimp and Shrimp Products, adopted on 12 October 1998, para. 116.
52 Ibid., para. 116.
53 Ibid., para. 117.
54 Ibid., para. 133.
55 Bhala, Modern GATT Law, p.303-305, para. 52- 084 -52-087.
56 Ibid., p. 306, para. 52-088-para. 52-089.
57 Howse/Neven, US- Shrimp, United States - Import Prohibition of Certain Shrimp and Shrimp Products: Recourse to Article 21. 5 of the DSU by Malaysia, p 46.
58 Mann, Of Revolution and Results: Trade-and-Environment Law in the Afterglow of the Shrimp-Turtle Case p.33.
59 Report of the Appellate Body, United States - Import Prohibition of certain Shrimp and Shrimp Products, adopted on 12 October 1998, para. 157.
60 Ibid., para. 158.
61 Report of the Panel, United States - Import Prohibition of certain Shrimp and Shrimp Products, adopted on 15 June 1998, para: 166.
62 Schoenbaum, The Decision in the Shrimp - Turtle Case, p.37.
63 Ibid., S.37.; Mann, Of Revolution and Results: Trade-and-Environment Law in the Afterglow of the ShrimpTurtle Case, p. 31.
64 Matsushita/Schoenbaum/Mavroidis/Hahn, The World Trade Organization Law, Practice, and Policy, p.726.
65 See: III, 2, c.
66 See, III, 1, c.
67 Matsushita/Schoenbaum/Mavroidis/Hahn, The World Trade Organization Law, Practice, and Policy, p. 726.
68 Schoenbaum, The Decision in the Shrimp - Turtle Case, p. 39.
69 See: III, 2, b.
70 Mann, Of Revolution and Results: Trade-and-Environment Law in the Afterglow of the Shrimp-Turtle Case, p. 31.
71 Ibid., p. 32.
72 Ibid., p.33.
73 Report of the Appellate Body, United States - Import Prohibition of certain Shrimp and Shrimp Products, adopted on 12 October 1998, para. 174.
74 Mann, Of Revolution and Results: Trade-and-Environment Law in the Afterglow of the Shrimp-Turtle Case, p. 34.
75 For more detailed information: Report of the Panel, European Communities - Measures affecting Asbesos and Asbestos - containing Products, adopted on 18 September 2000, para. 2.1-2.7.
76 Ibid., para. 3.1.
77 Ibid., para. 8.158.
78 Ibid., para. 8.186
79 Ibid., para. 8.194
80 Report of the Panel, European Communities - Measures affecting Asbesos and Asbestos - containing Products, adopted on 18 September 2000, para. 8.210.
81 Ibid., para. 8.210.
82 Ibid., para. 8.240.
83 Report of the Appellate, Body European Communities - Measures affecting Asbesos and Asbestos - containing Products, adopted on 12 March 2001, para. 192.
84 Report of the Appellate Body, Korea - Measures affecting Imports of fresh, chilled and frozen Beef, adopted on 11 December 2000.
85 Report of the Appellate Body, Korea - Measures affecting Imports of fresh, chilled and frozen Beef, adopted on 11 December 2000, para. 166, 163.
86 Report of the Appellate Body, European Communities - Measures affecting Asbesos and Asbestos - containing Products, adopted on 12 March 2001, para. 168.
87 Ibid., para. 192.
88 Segger/Gehring, The WTO and Precaution: Sustainable Development Implication on the Asbestos Dispute, p. 290.
89 Report of the Appellate Body, European Communities - Measures affecting Asbesos and Asbestos - containing Products, adopted on 12 March 2001, para. 85.
90 Working Party Report, Border Tax Adjustments, adopted 2 December 1970, BISD 18S/97.
91 Report of the Panel, European Communities - Measures affecting Asbesos and Asbestos - containing Products, adopted on 18 September 2000, para. 8.132.
92 Segger/Gehring, The WTO and Precaution: Sustainable Development Implication on the Asbestos Dispute, p. 309.
93 Ibid., p. 309.
94 Report of the Appellate Body, European Communities - Measures affecting Asbesos and Asbestos - containing Products, adopted on 12 March 2001, para. 109.
95 Horn/Weiler, EC - Asbestos European Communities - Measures Affecting Asbestos and Asbestos - Containing Products, p.33.
96 Report of the Appellate Body, European Communities - Measures affecting Asbesos and Asbestos - containing Products, adopted on 12 March 2001, para. 105.
97 Ibid., para. 114.
98 Horn/Weiler, EC - Asbestos European Communities - Measures Affecting Asbestos and Asbestos - Containing Products, p. 33.
99 See: III, 2, d.
100 II, 2, c, dd.
101 Green, Climate Change, Regulatory Policy and the WTO, p. 160.
102 Report of the Appellate Body, European Communities - Measures affecting Asbesos and Asbestos - containing Products, adopted on 12 March 2001, para. 192.
103 Thailand — Customs and Fiscal Measures on Cigarettes from the Philippines
104 Bhala, Modern GATT Law, p. 314, para. 52-103, 52-104.
105 See: III, 3, c.
106 Bhala, Modern GATT Law, p. 314, para. 52-105.
107 Report of the Appellate, Body Korea - Measures affecting Imports of fresh, chilled and frozen Beef, adopted on 11 December 2000, para. 162.
108 Report of the Appellate Body, European Communities - Measures affecting Asbesos and Asbestos - containing Products, adopted on 12 March 2001, para. 172.
109 Ibid., para. 174.
110 Thomas, The “necessity” of trade-restrictive measures aimed at protecting the environment, p. 33.
111 Mercado Comun del Sur.
112 Report of the Panel, Brazil - Measures Affecting Imports of Retreaded Tyres, adopted on 12 of June 2007, para. 3.1.: For more detailed information, view para. 2.1-3.4.
113 Report of the Panel, Brazil - Measures Affecting Imports of Retreaded Tyres, adopted on 12 of June 2007, para. 7.34.
114 Bhala, Modern GATT Law, p.319, para. 52-113.; Report of the Panel, Brazil - Measures Affecting Imports of Retreaded Tyres, adopted on 12 of June 2007, para. 7.390.
115 Detailed information: Ibid., para. 7.52- 7.83.
116 Ibid., para. 7.83.
117 Ibid., para. 7.102.
118 Ibid., para. 7.356-7.357.
119 Ibid., para. 7.390.
120 See: III, 4, a.
121 Ibid., para. 7.456.
122 Report of the Appellate, Body Brazil - Measures Affecting Imports of Retreaded Tyres, adopted on 3 of December 2007, para.258.
123 Bhala, Modern GATT Law, p. 321, para. 52-119.
124 Report of the Panel, Brazil - Measures Affecting Imports of Retreaded Tyres, adopted on 12 of June 2007, para. 7.53-7.93.
125 Report of the Appellate Body, European Communities - Measures affecting Asbesos and Asbestos - containing Products, adopted on 12 March 2001, para. 167.
126 Ibid., para. 138.
127 Rep ort of the Appellate, Body Brazil - Measures Affecting Imports of Retreaded Tyres, adopted on 3 of December 2007, para: 233.
128 See: III, 3, b.
129 Report of the Panel, Brazil - Measures Affecting Imports of Retreaded Tyres, adopted on 12 of June 2007, para. 7.98.
130 Bhala, Modern GATT Law, p. 320, para. 52-115.
131 Ibid., p. 320, para. 52-116.
132 Report of the Appellate Body, Brazil - Measures Affecting Imports of Retreaded Tyres, adopted on 3 of December 2007, para. 210.
133 Ibid., para. 210.
134 Ibid., para. 210.
135 Bown/Trachtmann, Brazil - Measures Affecting Imports of Retreaded Tyres: A Balancing Act, p. 4.
136 Ibid., p. 4; For a detailed analysis see: Ibid.
137 e.g. EC - Asbestos, see: III, 3, c.
138 Weiler, Brazil - Measures Affecting Imports of Retreaded Tyres (DS322) Prepared for the ALI Project on the Case Law of the WTO, p. 144.
139 Du, The Rise of national regulatory Autonomy in the GATT/WTO Regime, p. 666.
140 Report of the Appellate Body, Brazil - Measures Affecting Imports of Retreaded Tyres, adopted on 3 of December 2007, para. 227.
141 Ibid., para. 228.
142 Ibid., para. 226.
143 Following cases were combined: DS394, DS395, DS398.
144 Report of the Panel, China - Measures Related to the Exportation of Various Raw Materials, adopted on 5 July 2011, para. 2.4-2.5.
145 Certain forms of bauxite, coke, fluorspar, magnesium, maganese, silicon carbide, silicon metal, yellow phosphorus and zinc: Ibid., para: 2.1.
146 Report of the Panel, China - Measures Related to the Exportation of Various Raw Materials, adopted on 5 July 2011, para. 8.8
147 Ibid., para.7.121.
148 Ibid., para. 7.129.
149 Ibid., para. 7.158. The here mentioned findings of the Panel are because of the complexity of the case just exemplary. For a detailed analysis of each complaint, see: Report of the Panel, United States - Import Prohibition of certain Shrimp and Shrimp Products, adopted on 15 June 1998, para. 7.1-8.22.
150 Report of the Panel China - Measures Related to the Exportation of Various Raw Materials, adopted on 5 July 2011, para. 7.467.
151 Report of the Appellate, Body China - Measures Related to the Exportation of Various Raw Materials, adopted on 30 January 2012, para. 360.
152 Bhala, Modern GATT Law, p. 336, para: 52-147.
153 Bhala, Modern GATT Law, p. 336, para: 52-147.
154 Qin, The Predicament of China's "WTO-Plus" Obligation to Eliminate Export Duties: A Commentary on the China - Raw Materials Case, p. 239.
155 Report of the Appellate Body, China - Measures Related to the Exportation of Various Raw Materials, adopted on 30 January 2012, para. 306.
156 Qin, The Predicament of China's "WTO-Plus" Obligation to Eliminate Export Duties: A Commentary on the China - Raw Materials Case, p. 240.
157 http://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf (17.10.2016)
158 Qin, The Predicament of China's "WTO-Plus" Obligation to Eliminate Export Duties: A Commentary on the China - Raw Materials Case, p. 241.
159 Ibid., p. 244.
160 Gu, Applicability of the GATT Article XX in China - Raw Materials: A Clash within the WTO Agreement, p. 1008.
161 Qin, The Predicament of China's "WTO-Plus" Obligation to Eliminate Export Duties: A Commentary on the China - Raw Materials Case, p. 240.
162 Ibid., p. 245.
163 Bhala, Modern GATT Law, p. 336, para: 52-147.
164 See: III, 1, b.
165 See: III, 1, c.
166 See: III, 1, c.
167 See: III, 1, d.
168 See: III, 2, d.
169 See: III, 2, d.
170 See: III, 2, c.
171 See: III, 2, d.
172 Matsushita/Schoenbaum/Mavroidis/Hahn, The World Trade Organization Law, Practice, and Policy, p. 726.
173 See: III, 3, d.
174 See: III, 3, d.
175 Bhala, Modern GATT Law, p. 336, para. 52-148
176 See: III, 3, d.
177 See: III, 3, d.
178 See: III, 4, c.
179 See: III, 4, d.
180 Report of the Appellate Body, Brazil - Measures Affecting Imports of Retreaded Tyres, adopted on 3 of December 2007, para. 210.
181 See: III, 4, d.
182 See: III, 4, d.
183 See: III, 5, d.
184 Qin, The Predicament of China's "WTO-Plus" Obligation to Eliminate Export Duties: A Commentary on the China - Raw Materials Case, p. 239
185 See: III, 5, c.
186 https://www.wto.org/english/res_e/booksp_e/analytic_index_e/wto_agree_01_e.htm (19.10.2016) (emphasis added).
187 Lamy, Pascal (2006), ‘The WTO in the Archipelago of Global Governance', Speech at the Institute of International Studies, Geneva, 14 March 2006, http://www.wto.org/english/news_e/sppl_e/ sppl20_e/htm.
188 Report of the Appellate Body, United States - Import Prohibition of certain Shrimp and Shrimp Products, adopted on 12 October 1998, para. 155.
189 Lydgate, Sustainable development in the WTO: from mutual supportiveness to balancing, p. 627.
190 Report of the World Commission on Environment and Development: Our Common Future, 20 March 1987 para. 27.
191 http://www.un.org/esa/sustdev/documents/WSSD_POI_PD/English/POIToc.htm.
192 Lydgate, Sustainable development in the WTO: from mutual supportiveness to balancing, p. 28 (emphasis added).
193 Lydgate, Sustainable development in the WTO: from mutual supportiveness to balancing, p. 622.
194 Winter, The GATT and Environmental Protection: Problems of Construction, p. 116.
195 Ibid., p.114.
196 Oh, World Trade Organization, p. 611.
197 Lydgate, Sustainable development in the WTO: from mutual supportiveness to balancing, p. 624.
198 Charnovitz, The WTO's Environmental Progress, pp.687, 688.
199 https://www.wto.org/english/tratop_e/envir_e/wrk_committee_e.htm (21.10.2016).
200 https://www.wto.org/english/docs_e/legal_e/15-sps.pdf (21.10.2016).
201 https://www.wto.org/english/docs_e/legal_e/17-tbt.pdf (21.10.2016).
202 Ministerial Declaration, Ministerial Conference Fourth Session, Doha 9-14. November 2001 para.31-33. It was established for the first time in 1994 with the WTO Trade and Environment Ministerial Decision, adopted 14. April 1994.
203 Watson, The WTO and the Environment p. 160. A list of the areas of work of the CTE can be found in: Ibid., pp. 163,164.
204 Ibid., p.161.
205 http://www.unep.org/ (21.10.2016).
206 Charnovitz, The WTO's Environmental Progress, p. 690.
207 Ibid., p. 690.
208 McCormick, A Qualitative Analysis of the WTO's Role on Trade and Environment Issues, p.121.
209 Charnovitz, The WTO's Environmental Progress, p. 690.
210 https://www.wto.org/english/tratop_e/tbt_e/tbt_e.htm (21.10.2016).
211 Matsushita/Schoenbaum/Mavroidis/Hahn, The World Trade Organization Law, Practice, and Policy, p.436. For a detailed analysis of the TBT Agreement see: Ibid., p. 433-464.
212 Oh, World Trade Organization, p. 611.
213 https://www.wto.org/english/tratop_e/tbt_e/tbt_e.htm.
214 e.g. G/TBT/1/Rev. Report of the Committee on Technical Barriers to Trade, 21. January 2015.
215 Matsushita/Schoenbaum/Mavroidis/Hahn, The World Trade Organization Law, Practice, and Policy, p.464. For a detailed analysis of the SPS Agreement see: Ibid., p. 464-505.
216 https://www.wto.org/english/tratop_e/sps_e/sps_e.htm (21.10.2016)
217 Oh, World Trade Organization, p. 611.
218 Ibid., p. 611.
219 Matsushita/Schoenbaum/Mavroidis/Hahn, The World Trade Organization Law, Practice, and Policy, p. 504.
220 Lydgate, Sustainable development in the WTO: from mutual supportiveness to balancing, p. 634.
221 Ibid., p. 635.
222 Ibid., p. 636.
223 Shaffer, How to make the WTO Dispute Settlement System work for Developing Countries: Some Proactive Developing Country Strategies, p. 11.
224 See: II, 2.
225 Lydgate, Sustainable development in the WTO: from mutual supportiveness to balancin, p. 636.
226 United Nation Organization,United Nations Conference on Environment & Development Rio de Janerio 1992 Art. 2.20.
227 Report of the Appellate Body, United States - Standards for Reformulated and Conventional Gasoline, adopted on 29 April 1996, p.17.
228 Marceau/Wyatt, Trade and the envionment: The WTO's efforts to balance economic and sustainable development, p. 228.
229 Tarasofsky, Ensuring Compatibility between Multilateral Environmental Agreements and GATT/WTO, p. 54.
230 Weiss/Jackson, The Framework for Environment and Trade Disputes p. 30.
231 https://cites.org/sites/default/files/eng/disc/CITES-Convention-EN.pdf (22.10.2016)
232 http://ozone.unep.org/en/handbook-montreal-protocol-substances-deplete-ozone-layer/25411 (22.10.16)
233 http://www.basel.int/Portals/4/Basel%20Convention/docs/text/BaselConventionText-e.pdf (22.10.16)
234 Watson, The WTO and the Environment p. 130.
235 Ibid., p. 132.
236 For a detailed analysis: Bajwa, Saira: The World Trade Organization and the Environment, Gonzaga Journal of International Law, 2008-2009, https://www.law.gonzaga.edu/gjil/2009/01/wto-environment/ (22.10.16)
237 Tarasofsky, Ensuring Compatibility between Multilateral Environmental Agreements and GATT/WTO, p.52.
238 Ibid., p. 53.
239 For a detailed analysis: Watson, The WTO and the Environment p. 132-136.
240 Art. 36(1) of the Statute of the International Court of Justice allows the ICJ to acquire ad hoc jurisdiction.
241 Tarasofsky, Ensuring Compatibility between Multilateral Environmental Agreements and GATT/WTO, p.71.
242 Ibid., p.71.
243 Report of the Appellate Body United States - Import Prohibition of certain Shrimp and Shrimp Products, adopted on 12 October 1998, para. 185.
244 Watson, The WTO and the Environment, p. 136.
245 e.g. See: US- Shrimp, III, 2; US- Gasoline III, 1.
246 See: US- Shrimp, III, 2.
247 See: EC- Asbestos, III, 3.
248 See: Brazil - Retreaded Tyres, III, 4.
249 See: IV, 1, b.
250 See: IV, 2.
251 Marceau/Wyatt, Trade and the envionment: The WTO's efforts to balance economic and sustainable development, p. 235.
- Citation du texte
- Alexander Laute (Auteur), 2017, The WTO Case Law Relating to the Protection of the Environment. Analysis of Developement and System Sufficiency, Munich, GRIN Verlag, https://www.grin.com/document/1138928
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