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GATT/WTO SYSTEM AND THE
PROTECTION OF NON-TRADE VALUES
Text of article XX:
See the WTO website
http://www.wto.org/english/docs_e/leg
al_e/gatt47_02_e.htm#articleXX
GATT/WTO SYSTEM AND THE PROTECTION
OF NON-TRADE VALUES
 Article XX : general exceptions from free trade
 protection of public interests and of State
sovereignty
 Sanitary and Phitosanitary Agreement and
Agreement on Technical Barriers to Trade are a
dev't of article XX
 the meaning of art.XX is qualified by
jurisprudence
 evolutionary interpretation
The Tuna-Dolphin cases
 import ban by the US because nets used in
order to fish tuna accidentally catch dolphins
 violation of art.XI and justification by art.XX b)
 extraterritoriality: indirect modification of WTO
members' law
 PPMs issue : process and production methods:
can i distinguish products on the basis of the
way they are processed?
The Tuna-dolphin cases
 the measure is refused : the measure is
not “necessary”
 GATT accused to be not favorable to
env'tal protection
 a second panel created about the same
problem does not rule out the possibility
of extraterritorial measures
The LTRAT and the necessity principle
 some paragraphs of article XX use the term
“necessary”
 necessity is a principle of int'l law : a measure
is not stronger than necessary to achieve its
aim
 a measure is illegal if there are other measures
less restrictive and equally effective to reach
that aim
The LTRAT and the necessity principle
 LTRAT= least trade restrictive alternative
test
 heavy burden of proof on the State
invoking art.XX
 alternative measures are easy to find but
often more expensive
 art.XX is an exception= restrictive
interpretation
The LTRAT and the necessity principle
 example: Thailand cigarettes
 import ban on cigarettes for public health
reasons
 the measure is not necessary:
- less restrictive alternatives (training
programs)
- no internal measures = discrimination
The weighing and balancing test
 in the light of the critics need to refine the
LTRAT
 Korea-Beef (2000): imported and
domestic meat are sold in different shops
 Korea invokes art.XX d): protection of
consumers
 inspiration from EU jurisprudence
The weighing and balancing test
 assessing the necessity of a measure
implies the application of 3 criteria :
- importance of the aim
- effectiveness of the measure
- trade restriction
The weighing and balancing test
 risk to apply the test differently according
to the dispute
 ex. France - ban on asbestos products
 the aim is of the highest importance
 the measure is indispensable
 trade restrictiveness is not assessed
The weighing and balancing test
problems of the test:
- are some interests more important than
others?
- the third criterion implies a balancing of
the aim with trade interests
- in principle WTO cannot put into
discussion members' level of protection
of public goods
The chapeau
 applied after the paragraphs
 it deals with the way the measure is
implemented
 prevention of abuse of right
 striking a balance between the rights of
the State imposing the measure and the
right of other States to free trade
The chapeau
 ex. US-Shrimps
- import ban on shrimps fished without a
turtle excluding device
- the measure falls under art.XX g) but it
violates the chapeaux
- non transparent, unilateral and
discriminatory process
Article XX and the precautionary
principle
 Brasilian tyres : unlikely cause-effect
chain between the use of retreated tyres
and the spread of diseases
 precautionary reasoning of the AB
 application of the chapeau : decision by
another judicial organ does not justify
discrimination
Recent art.XX cases
 EU-ban on seal meat and products
- exception for Inuit traditional production
- seals are an endangered species
- integral part of indigenous lifestyle
 case dealt with by the EU court
 ECHR and IACHR case-law
 possible application of art.XX g)
Recent art.XX cases
 Korea-imports of bovine meat from
Canada (panel stage) : fear of BSE
the ban can only be lifted by Korean
assembly
 EU-poultry meat from US: ban on any
chemical product other than water
various EU agencies issued reports
according to which there's no real risk
China-raw materials
 export ban of raw materials supported by:
- sovereignty over natural resources
- need to protect and manage raw
materials
- DCs right to preserve resources for their
economic dev't
 art.XX cannot be used for violations of
accession protocols
China-raw materials
 art.XX g): general principles
 is the measure related to...? no conflict
between sovereignty, sustainable dev't
and trade liberalisation
 is the measure adopted in conjunction
with...? even-handedness
China-raw materials
 art. XX g) : application
 is the measure related to..? NO
- it would make more sense to limit extraction and
not exports
- long-term effects on the downstream sector
(subsidy)
- why a quota and not a duty? the link with the
aim is not clear
China-raw materials
 is the measure adopted in conjunction
with...? NO
- long list of domestic conservation
measures but their actual effect is not
clear
 is the measure even-handed? NO
- the import ban and the production cap do
not have an even impact on
importers/exporters
China-raw materials
 art.XX par. b) supported by:
- production from scrap products is less
polluting
- export duties make sure there is a stable
supply of scraps
- restrictions on primary production reduce
pollution
China-raw materials
 restrictions on primary products
- the measure does not fall under par.b) because
the real aim is economic
- contribution to the aim
export restrictions = reduced production and
pollution?
unreliable dataset
upstream-downstream interactions not accounted
for
China-raw materials
selection effect?
link between export restrictions on raw materials
and production of value-added goods?
env'tal Kuznets curve
- trade restrictiveness
China able to affect world prices
entry of new and more efficient competitors
uncertain
China-raw materials
- existence of alternatives
improved technology to reduce the level of
pollution
recycling of consumer goods
increased env'l standards
China says there are already in place/they do not
work
the panel disagrees: China policy do not include
these measures and those in place do not work
China-raw materials
 restrictions on scrap products
scrap = less pollution?
export restrictions necessary to enhance
recycling?
reducing scrap price can also reduce the
incentive to collect it
- the are alternatives
 CHINA IS IN BREACH