Trade and Environment: Reconciling the Montreal Protocol and the GATT

Journal of World Trade

Volumn 33, Issue 4, 1999, Pages 61-86

  Rutgeerts, Ann ^a  

^a Brussels Bar   (Belgium)

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[No Author keywords available]

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EID: 0033433908     PISSN: 10116702     EISSN: None     Source Type: Journal    
DOI: 10.54648/trad1999028     Document Type: Article

References (209)

1. For a historical background of the Trade and Environment issues, see inter alia P. Kohona, The WTO and Trade and Environment Issues, Future Directions, 20 W. Comp. 4,June, 1997, pp. 87-111. Not only the WTO is examining the issue of trade and environment and more specifically the conflicts between multilateral environmental agreements (MEAs) and trade policy, but also the OECD, UNEP, CSD and UNCTAD. For an overview of the work of these bodies: see EC Commission, Communication to the Council and to the Parliament on trade and environment, COM (96) 54 final.
2. For a historical background of the Trade and Environment issues, see inter alia P. Kohona, The WTO and Trade and Environment Issues, Future Directions, 20 W. Comp. 4,June, 1997, pp. 87-111. Not only the WTO is examining the issue of trade and environment and more specifically the conflicts between multilateral environmental agreements (MEAs) and trade policy, but also the OECD, UNEP, CSD and UNCTAD. For an overview of the work of these bodies: see EC Commission, Communication to the Council and to the Parliament on trade and environment, COM (96) 54 final.
3. United States - Restriction on Imports of Tuna, 30 I.L.M. 1991, (hereinafter First Tuna-Dulphin Panel Report) pp. 1594 et seq.
4. For more information on the CTE, see inter alia K.J. Hunt, International Environmental Agreements in Conflict in/A GATT - Greening GATT after the Uruguay Round Agreement, in 30 Int'l Law. 1, 1996, pp. 163 et seq.; and G. Van Calster, The World Trade Organization Committee on Trade and Environment, Exploring the Challenges of the Greening of Free Trade, 5 E.I.L.R. 2, 1996, pp. 44 et seq.
5. For more information on the CTE, see inter alia K.J. Hunt, International Environmental Agreements in Conflict in/A GATT - Greening GATT after the Uruguay Round Agreement, in 30 Int'l Law. 1, 1996, pp. 163 et seq.; and G. Van Calster, The World Trade Organization Committee on Trade and Environment, Exploring the Challenges of the Greening of Free Trade, 5 E.I.L.R. 2, 1996, pp. 44 et seq.
6. WTO, Trade and environment decision of 14 April 1994, MTN/TNC/45 (MIN).
7. WTO, Report of the General Council to the Ministerial Conference of Singapore, 12 November 1996, WTO/CTE/1, (96-4808), (hereafter "Singapore Report").
8. See Item 1 of the Singapore Report, note 5, above.
9. Protocol on Substances that Deplete the Ozone Layer, 16 September 1987, Montreal, 26 I.L.M. 1987, also reproduced in P. Sands, G. Richard and M. Weiss (eds), Documents in International Environmental Law, IIA, Manchester University Press, Manchester/New York, 1994, pp. 189 et seq.
10. Protocol on Substances that Deplete the Ozone Layer, 16 September 1987, Montreal, 26 I.L.M. 1987, also reproduced in P. Sands, G. Richard and M. Weiss (eds), Documents in International Environmental Law, IIA, Manchester University Press, Manchester/New York, 1994, pp. 189 et seq.
11. For more information on this subject, see D. Brack, International Trade and the Montreal Protocol, Earthscan Publications, London, 1996, pp. 99 et seq.
12. The EC is a full member of the Montreal Protocol. The problems that arise with GATT are the same as for any other party to the Montreal Protocol. For the EC rules on Trade and Environment and a comparison with the GATT, see E.-U. Petersmann, in A. Cassese, R. Dehousse, and H.H. Weiler (eds), Collected Courses of the Academy of European Law, Vol. IV, Book I, European University Institute, Martinus Nijhoff, The Hague, 1993, pp. 184 et seq.; For the Commission's point of view on MEAs, see J.C. Bogaerts, The Commission's Communication on Environmental Agreements, E.E.L.R., March 1997, pp. 84 et seq.
13. The EC is a full member of the Montreal Protocol. The problems that arise with GATT are the same as for any other party to the Montreal Protocol. For the EC rules on Trade and Environment and a comparison with the GATT, see E.-U. Petersmann, in A. Cassese, R. Dehousse, and H.H. Weiler (eds), Collected Courses of the Academy of European Law, Vol. IV, Book I, European University Institute, Martinus Nijhoff, The Hague, 1993, pp. 184 et seq.; For the Commission's point of view on MEAs, see J.C. Bogaerts, The Commission's Communication on Environmental Agreements, E.E.L.R., March 1997, pp. 84 et seq.
14. See inter alia R. Churchill and G. Kütting, International Environmental Agreements and the Free Movement of Goods in the EC: The Case of the Montreal Protocol, E.E.L.R., December 1994, pp. 329 et seq.; Concerning the internal competences of the EC for the conclusion and implementation of MEAs, see also M. Hession, The Role of the EC in the Implementation of International Environmental Law, 2 R.E.C.I.E.L. 4, 1993, pp. 341 et seq.; and J.T. Lang, The Ozone Layer Convention: A New Solution to the Question of Community Participation in "Mixed" International Agreements, 23 C.M.L.R. 1986, pp. 157 et seq.
15. See inter alia R. Churchill and G. Kütting, International Environmental Agreements and the Free Movement of Goods in the EC: The Case of the Montreal Protocol, E.E.L.R., December 1994, pp. 329 et seq.; Concerning the internal competences of the EC for the conclusion and implementation of MEAs, see also M. Hession, The Role of the EC in the Implementation of International Environmental Law, 2 R.E.C.I.E.L. 4, 1993, pp. 341 et seq.; and J.T. Lang, The Ozone Layer Convention: A New Solution to the Question of Community Participation in "Mixed" International Agreements, 23 C.M.L.R. 1986, pp. 157 et seq.
16. See inter alia R. Churchill and G. Kütting, International Environmental Agreements and the Free Movement of Goods in the EC: The Case of the Montreal Protocol, E.E.L.R., December 1994, pp. 329 et seq.; Concerning the internal competences of the EC for the conclusion and implementation of MEAs, see also M. Hession, The Role of the EC in the Implementation of International Environmental Law, 2 R.E.C.I.E.L. 4, 1993, pp. 341 et seq.; and J.T. Lang, The Ozone Layer Convention: A New Solution to the Question of Community Participation in "Mixed" International Agreements, 23 C.M.L.R. 1986, pp. 157 et seq.
17. For free trade visions, see, e.g., Andersson et al., Trading with the Environment; Ecology, Economics, Institutions and Policy, Earthscan Publications, London, 1995, pp. 22 et seq.; B.M. Hoekman and M.M. Kostecki, The Political Economy of the World Trading System, from GATT to WTO, Oxford University Press, Oxford, 1995, pp. 259 et seq.; D. Pearce, The Greening of the GATT: Some Economic Considerations, in J. Cameron, P. Demaret and D. Geradin (eds), Trade and the Environment: The Search for Balance, I, Cameron May, London, 1994, pp. 20 et seq.; M. Schlagenhof, Trade Measures Based on Environmental Processes and Production Methods, 29 J.W.T. 6, December, 1995, pp. 153 et seq. For visions of environmentalists see, e.g. D. Brack, note 8, above; also Andersson et al., and M. Schlagenhof.
18. For free trade visions, see, e.g., Andersson et al., Trading with the Environment; Ecology, Economics, Institutions and Policy, Earthscan Publications, London, 1995, pp. 22 et seq.; B.M. Hoekman and M.M. Kostecki, The Political Economy of the World Trading System, from GATT to WTO, Oxford University Press, Oxford, 1995, pp. 259 et seq.; D. Pearce, The Greening of the GATT: Some Economic Considerations, in J. Cameron, P. Demaret and D. Geradin (eds), Trade and the Environment: The Search for Balance, I, Cameron May, London, 1994, pp. 20 et seq.; M. Schlagenhof, Trade Measures Based on Environmental Processes and Production Methods, 29 J.W.T. 6, December, 1995, pp. 153 et seq. For visions of environmentalists see, e.g. D. Brack, note 8, above; also Andersson et al., and M. Schlagenhof.
19. For free trade visions, see, e.g., Andersson et al., Trading with the Environment; Ecology, Economics, Institutions and Policy, Earthscan Publications, London, 1995, pp. 22 et seq.; B.M. Hoekman and M.M. Kostecki, The Political Economy of the World Trading System, from GATT to WTO, Oxford University Press, Oxford, 1995, pp. 259 et seq.; D. Pearce, The Greening of the GATT: Some Economic Considerations, in J. Cameron, P. Demaret and D. Geradin (eds), Trade and the Environment: The Search for Balance, I, Cameron May, London, 1994, pp. 20 et seq.; M. Schlagenhof, Trade Measures Based on Environmental Processes and Production Methods, 29 J.W.T. 6, December, 1995, pp. 153 et seq. For visions of environmentalists see, e.g. D. Brack, note 8, above; also Andersson et al., and M. Schlagenhof.
20. For free trade visions, see, e.g., Andersson et al., Trading with the Environment; Ecology, Economics, Institutions and Policy, Earthscan Publications, London, 1995, pp. 22 et seq.; B.M. Hoekman and M.M. Kostecki, The Political Economy of the World Trading System, from GATT to WTO, Oxford University Press, Oxford, 1995, pp. 259 et seq.; D. Pearce, The Greening of the GATT: Some Economic Considerations, in J. Cameron, P. Demaret and D. Geradin (eds), Trade and the Environment: The Search for Balance, I, Cameron May, London, 1994, pp. 20 et seq.; M. Schlagenhof, Trade Measures Based on Environmental Processes and Production Methods, 29 J.W.T. 6, December, 1995, pp. 153 et seq. For visions of environmentalists see, e.g. D. Brack, note 8, above; also Andersson et al., and M. Schlagenhof.
21. For free trade visions, see, e.g., Andersson et al., Trading with the Environment; Ecology, Economics, Institutions and Policy, Earthscan Publications, London, 1995, pp. 22 et seq.; B.M. Hoekman and M.M. Kostecki, The Political Economy of the World Trading System, from GATT to WTO, Oxford University Press, Oxford, 1995, pp. 259 et seq.; D. Pearce, The Greening of the GATT: Some Economic Considerations, in J. Cameron, P. Demaret and D. Geradin (eds), Trade and the Environment: The Search for Balance, I, Cameron May, London, 1994, pp. 20 et seq.; M. Schlagenhof, Trade Measures Based on Environmental Processes and Production Methods, 29 J.W.T. 6, December, 1995, pp. 153 et seq. For visions of environmentalists see, e.g. D. Brack, note 8, above; also Andersson et al., and M. Schlagenhof.
22. For free trade visions, see, e.g., Andersson et al., Trading with the Environment; Ecology, Economics, Institutions and Policy, Earthscan Publications, London, 1995, pp. 22 et seq.; B.M. Hoekman and M.M. Kostecki, The Political Economy of the World Trading System, from GATT to WTO, Oxford University Press, Oxford, 1995, pp. 259 et seq.; D. Pearce, The Greening of the GATT: Some Economic Considerations, in J. Cameron, P. Demaret and D. Geradin (eds), Trade and the Environment: The Search for Balance, I, Cameron May, London, 1994, pp. 20 et seq.; M. Schlagenhof, Trade Measures Based on Environmental Processes and Production Methods, 29 J.W.T. 6, December, 1995, pp. 153 et seq. For visions of environmentalists see, e.g. D. Brack, note 8, above; also Andersson et al., and M. Schlagenhof.
23. B.M. Hoekman and M.M. Kostecki, note 11, above; see also COM (96) 54 final, at 5.
24. B.M. Hoekman and M.M. Kostecki, note 11, above; see also COM (96) 54 final, at 5.
25. P. Ekins, World Trade and the Environment, 2 European Environment 4, April 1994, at 6.
26. GATT, International Trade 1990-91, Vol. I, Geneva, 1992, at 21.
27. D. Esty, Greening the GATT - Trade, Environment, and the Future, Institute for International Economics, Washington D.C., 1994, at 189.
28. W.M. Corden, Trade Policy and Economic Welfare, 2nd Edition, Clarendon Press, Oxford, 1997.
29. P.P. Uimonen, Trade Rules and Environmental Controversies During the Uruguay Round and Beyond, 18 The World Economy 1, January 1995, at 74.
30. Convention on the Protection of the Ozone Layer, 22 March 1985, Vienna, reprinted in P. Sands et al., note 7, above.
31. They were mainly used as propellants in aerosol cans, as foam-blowing agents, as solvents, and as coolants for refrigerators and air conditioners. See H.F. French, in L.R. Brown et al. (eds), State of the World, a Worldwatch Institute Report on Progress Toward a Sustainable Society, W.W. Norton Company, New York/London, 1997, pp. 151 et seq.
32. M.J. Molina and F.S. Rowland, Stratospheric Sink for Chlorofluoromethanes: Chlorine Atom-Catalysed Destruction of Ozone, Nature, 28 June 1974, cited by H.F. French, in L.R. Brown et al. (eds), note 19, above, at 153, note 9.
33. M.J. Molina and F.S. Rowland, Stratospheric Sink for Chlorofluoromethanes: Chlorine Atom-Catalysed Destruction of Ozone, Nature, 28 June 1974, cited by H.F. French, in L.R. Brown et al. (eds), note 19, above, at 153, note 9.
34. For more details, see L.R. Brown et al (eds), note 19, above. For a focus on the role of the EC during the negotiations, see M. Jachtenfuchs, The European Community and the Protection of the Ozone Layer, 28 Journal of Common Market Studies 3, March 1990, pp. 261 et seq.
35. For more details, see L.R. Brown et al (eds), note 19, above. For a focus on the role of the EC during the negotiations, see M. Jachtenfuchs, The European Community and the Protection of the Ozone Layer, 28 Journal of Common Market Studies 3, March 1990, pp. 261 et seq.
36. There were differences in approach, in particular between the United States and its allies on the one hand, which pleaded for a range of control measures on the use of CFCs in various sectors, and the EC on the other hand, which was not convinced by the (then uncertain) state of evidence, and which mainly wanted a cap on the existing production capacity (D. Brack, note 11, above).
37. Protocol on Substances that Deplete the Ozone Layer, 16 September 1987, Montreal, 26 I.L.M. 1987.
38. 1990 Amendments, London, 19 June 1990, 30 I.L.M. 1991, pp. 537 et seq.
39. 1992 Amendments, Copenhagen, 25 November 1992, 32 I.L.M. 1993, pp. 874 et seq.
40. See UNEP, Further Reductions and Adjustments: controlled substances listed in the Annexes C and E of the Montreal Protocol, in Annex III, point 4 to the UNEP, Report of the Ozone Assessment Panel to the 7th Meeting of the Parties to the Montreal Protocol, on internet at http://www.unep.ch/ozone/7mpviefh.hm.
41. Different CFCs and some halons, listed in four Annexes.
42. Concerning emission trading in the EU, see EC Commission, DG XI, Emission Trading in the European Union, Practice and Prospects, Paper Workshop, 9-10 April 1997.
43. The purpose of this provision was to help overcome economy of scale problems as production diminishes to zero (D. Brack, note 8, above, at 16).
44. "Fully halogenated" CFCs, Carbon tetrachloride and methylchloroform.
45. CFCs, fully halogenated CFCs, Carbon tetrachloride and Methyl Chloroform.
46. Hydrochlorofluorocarbons (HCFC), forbidden by the year 2030, hydrobromofluorocarbons, prohibited from 1996 onwards, and methyl bromide, to be stabilised at 1991 levels by 1995.
47. See internet at http:/www.unep.ch/ozone/9mop.htm.
48. This licence system can, for certain substances, be delayed until January 2002 and 2005 if the parties cannot establish it before.
49. UNEP, Status of Ratification/Accession/Acceptame/Approval of the Vienna Convention for the Protection of the Ozone Layer (1985); the Montreal Protocol on Substances that Deplete the Ozone Layer (1987); the London Amendment to the Montreal Protocol (1990); the Copenhagen Amendment to the Montreal Protocol (1992), Report of the Economic Options Committee, January 1997, to be found on the internet at http://www.unep.ch/ozone/ratif.htm.
50. Together with the 1989 BASLE Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, and the 1973 Convention on International Trade in Endangered Species (CITES). For a short overview of the potential conflicts of these conventions with GATT, see M. Lenard, The World Trade Organization and Disputes Involving Multilateral Environmental Agreements, 5 R.E.C.I.E.L. 11, November 1996, pp. 307 et seq.
51. Article 1 of the Montreal Protocol defines consumption as "production plus imports minus exports of controlled substances".
52. New Zealand, however, raised the problem in the Singapore Conference, see WT/CTE/W/20, Item I, 15 February 1996, at 9.
53. See also Article 26 of the Vienna Convention on the Law of Treaties, 1969, inter alia in M.D. Evans (ed.), Blackstone's International Law Documents, 2nd Edition, Blackstone Press Limited, London, 1994, pp. 158 et seq., which provides that a treaty must be performed in good faith.
54. See J. Masquelin, Le droit des traités dans l'ordre juridique et dans la pratique diplomatique, Bruylant, Bruxelles, 1980, at 382; J.G. Starke, Introduction to International Law, Butterworths, London, 1989, at 470.
55. See J. Masquelin, Le droit des traités dans l'ordre juridique et dans la pratique diplomatique, Bruylant, Bruxelles, 1980, at 382; J.G. Starke, Introduction to International Law, Butterworths, London, 1989, at 470.
56. ième éd., Librairie Général du Droit et de Jurisprudence, E.J.A., Paris, 1994.
57. ième éd., Librairie Général du Droit et de Jurisprudence, E.J.A., Paris, 1994.
58. ième éd., Librairie Général du Droit et de Jurisprudence, E.J.A., Paris, 1994.
59. See also I. Brownlie, Principles of Public International Law, Clarendon Press, Oxford, 1990, at 618.
60. WTO panels and Appellate Bodies have, on different occasions, clearly shown their willingness to take into account the international legal order as a whole. See, e.g., US - Import prohibition of certain shrimp and shrimp products, Report of the Appellate Body of 12 October 1998, WT/DS 58/AB/R, (hereafter "the Shrimp/Turtle Case"). For a critique against the way the Shrimp/Turtle Panel had applied the rules of international law to the Shrimp Case, see R. Howse, The Turtles Panel - Another Environmental Disaster in Geneva, 32 J.W.T. 5, October, 1998, pp. 73 et seq.; G. Van Calster, The WTO Shrimp/Turtle Report: Marine Conservation v. GATT Conservatism?, 7 E.E.L.R. 11, November 1998, pp. 307 el seq. This Panel Report was however overruled by the Appellate Body. See also WTO Appellate Body, US - Standards for reformulated and conventional Gasoline, 20 May, 1996, WTO doc. WT/DS2/AB/R/1996, (hereafter "Gasoline Case").
61. WTO panels and Appellate Bodies have, on different occasions, clearly shown their willingness to take into account the international legal order as a whole. See, e.g., US - Import prohibition of certain shrimp and shrimp products, Report of the Appellate Body of 12 October 1998, WT/DS 58/AB/R, (hereafter "the Shrimp/Turtle Case"). For a critique against the way the Shrimp/Turtle Panel had applied the rules of international law to the Shrimp Case, see R. Howse, The Turtles Panel - Another Environmental Disaster in Geneva, 32 J.W.T. 5, October, 1998, pp. 73 et seq.; G. Van Calster, The WTO Shrimp/Turtle Report: Marine Conservation v. GATT Conservatism?, 7 E.E.L.R. 11, November 1998, pp. 307 el seq. This Panel Report was however overruled by the Appellate Body. See also WTO Appellate Body, US - Standards for reformulated and conventional Gasoline, 20 May, 1996, WTO doc. WT/DS2/AB/R/1996, (hereafter "Gasoline Case").
62. WTO panels and Appellate Bodies have, on different occasions, clearly shown their willingness to take into account the international legal order as a whole. See, e.g., US - Import prohibition of certain shrimp and shrimp products, Report of the Appellate Body of 12 October 1998, WT/DS 58/AB/R, (hereafter "the Shrimp/Turtle Case"). For a critique against the way the Shrimp/Turtle Panel had applied the rules of international law to the Shrimp Case, see R. Howse, The Turtles Panel - Another Environmental Disaster in Geneva, 32 J.W.T. 5, October, 1998, pp. 73 et seq.; G. Van Calster, The WTO Shrimp/Turtle Report: Marine Conservation v. GATT Conservatism?, 7 E.E.L.R. 11, November 1998, pp. 307 el seq. This Panel Report was however overruled by the Appellate Body. See also WTO Appellate Body, US - Standards for reformulated and conventional Gasoline, 20 May, 1996, WTO doc. WT/DS2/AB/R/1996, (hereafter "Gasoline Case").
63. WTO panels and Appellate Bodies have, on different occasions, clearly shown their willingness to take into account the international legal order as a whole. See, e.g., US - Import prohibition of certain shrimp and shrimp products, Report of the Appellate Body of 12 October 1998, WT/DS 58/AB/R, (hereafter "the Shrimp/Turtle Case"). For a critique against the way the Shrimp/Turtle Panel had applied the rules of international law to the Shrimp Case, see R. Howse, The Turtles Panel - Another Environmental Disaster in Geneva, 32 J.W.T. 5, October, 1998, pp. 73 et seq.; G. Van Calster, The WTO Shrimp/Turtle Report: Marine Conservation v. GATT Conservatism?, 7 E.E.L.R. 11, November 1998, pp. 307 el seq. This Panel Report was however overruled by the Appellate Body. See also WTO Appellate Body, US - Standards for reformulated and conventional Gasoline, 20 May, 1996, WTO doc. WT/DS2/AB/R/1996, (hereafter "Gasoline Case").
64. Indeed, harm to the ozone anywhere in the world (at least in the long run) affects the domestic environment of every State. For a more detailed analysis, see Section II.D below.
65. Developing countries can moreover export ODS until 1 July 1999. (Decision VII/9 of the Parties to the Montreal Protocol, see Internet http://www.unep.ch/ozone/7mpviefh.htm).
66. Article 1.P.5 of the 1990 Amendment.
67. Article 1.T of the 1990 Amendment.
68. See S.N. Carlson, who maintains that the Multilateral Fund provides for subsidies contrary to GATT;
69. and E.G. Luchs, who considers that countervailing duties (Article VI GATT) are possible against the financial assistance from the Fund, (both cited in K.J. Hunt, note 3, above).
70. See, e.g., Preamble of UN, Proceedings of the United Nations Conference on Trade and Development, Vol. I, Final Act and Report, Geneva, 23 March-16 June 1964, New York, at pts. 22, 45 and 47; see also Vol. II, Policy Statements, at 21, pt. 5, and the various Sessions (Nairobi, Manila, etc.) of UNCTAD.
71. See, e.g., Preamble of UN, Proceedings of the United Nations Conference on Trade and Development, Vol. I, Final Act and Report, Geneva, 23 March-16 June 1964, New York, at pts. 22, 45 and 47; see also Vol. II, Policy Statements, at 21, pt. 5, and the various Sessions (Nairobi, Manila, etc.) of UNCTAD.
72. See the Preamble of the WTO Agreement and Article XI (2), see also Article XXXVI (8) GATT, which requires no reciprocity from the less-developed countries; and Article 9 Technical Harness to Trade (TBT) Agreement.
73. See Principles 5, 6 and 7.
74. See, e.g., OECD Working Papers, Trade, environment and development co-operation, vol. 3, no. 45, Paris, 1995, at 20.
75. I. Brownlie, note 42, above, at 622.
76. There are however some sovereignty arguments to maintain that the trade restrictions of the Montreal Protocol are consistent with international law, see below at section II.D.3.
77. See Theory of "Traités-lois", E. Van Bogaert, Volkenrecht, Kluwer, Antwerpen, 1982, at 508. Also J. Masquelin, Le droit des traités dans l'ordre juridique et dans la pratique diplomatique, Bruylant, Bruxelles, 1980, pp. 372 et seq.
78. See Theory of "Traités-lois", E. Van Bogaert, Volkenrecht, Kluwer, Antwerpen, 1982, at 508. Also J. Masquelin, Le droit des traités dans l'ordre juridique et dans la pratique diplomatique, Bruylant, Bruxelles, 1980, pp. 372 et seq.
79. To the extent that the Montreal Protocol treats a non-party of the GATT, but party to the Montreal Protocol, better than a party of the GATT, but not party to the Montreal Protocol.
80. Decision V/17 of the Parties to the Montreal Protocol, Y.B. of Int'l. Env'l. Law 1993, pp. 866 et seq.
81. For more details, see D. Brack, note 8, above, at 48-49.
82. First Tuna-Dolphin Panel Report, note 2, above, paras. 5.11-14. For a Summary of this case, see inter alia D. Pearce, note 11, above, pp. 26 et seq.; A. Haner, Will the European Union Packaging Directive reconcile Trade and the Environment?, 18 Fordham Int'l. Law Journal 5, May 1995, pp. 2187 et seq.; and I. Carr, Environment versus International Trade: Where are we now?, 4 International Trade Law Review 1997, pp. 130-134.
83. First Tuna-Dolphin Panel Report, note 2, above, paras. 5.11-14. For a Summary of this case, see inter alia D. Pearce, note 11, above, pp. 26 et seq.; A. Haner, Will the European Union Packaging Directive reconcile Trade and the Environment?, 18 Fordham Int'l. Law Journal 5, May 1995, pp. 2187 et seq.; and I. Carr, Environment versus International Trade: Where are we now?, 4 International Trade Law Review 1997, pp. 130-134.
84. First Tuna-Dolphin Panel Report, note 2, above, paras. 5.11-14. For a Summary of this case, see inter alia D. Pearce, note 11, above, pp. 26 et seq.; A. Haner, Will the European Union Packaging Directive reconcile Trade and the Environment?, 18 Fordham Int'l. Law Journal 5, May 1995, pp. 2187 et seq.; and I. Carr, Environment versus International Trade: Where are we now?, 4 International Trade Law Review 1997, pp. 130-134.
85. First Tuna-Dolphin Panel Report, note 2, above, paras. 5.11-14. For a Summary of this case, see inter alia D. Pearce, note 11, above, pp. 26 et seq.; A. Haner, Will the European Union Packaging Directive reconcile Trade and the Environment?, 18 Fordham Int'l. Law Journal 5, May 1995, pp. 2187 et seq.; and I. Carr, Environment versus International Trade: Where are we now?, 4 International Trade Law Review 1997, pp. 130-134.
86. A discrimination on the ground of PPMs is also forbidden in EC law. See L. Krämer, Environmental Protection and Article 30 EEC Treaty, 30 C.M.L.R. 1, 1993, at 138. For an overview of GATT case law on PPMs, see R.J. Zedalis, Product v. Non-Product Based Distinctions in GATT Article III Trade and Environment Jurisprudence: Recent Developments, 6 E.E.L.R. 4, April 1997, pp. 108-112.
87. A discrimination on the ground of PPMs is also forbidden in EC law. See L. Krämer, Environmental Protection and Article 30 EEC Treaty, 30 C.M.L.R. 1, 1993, at 138. For an overview of GATT case law on PPMs, see R.J. Zedalis, Product v. Non-Product Based Distinctions in GATT Article III Trade and Environment Jurisprudence: Recent Developments, 6 E.E.L.R. 4, April 1997, pp. 108-112.
88. Ward criticises that decision, stating that one can then also consider a carpet made by young children to be "like" a carpet made by adults. H. Ward, Common but differentiated debates: Environment, Labour and the WTO, 45 International and Comparative Law Quarterly 3, July 1993, pp. 592 et seq.
89. However, for a critique against the legal motivation of the First Tuna-Dolphin Panel Report, see H.L.Thaggert, in J. Cameron et al (eds), note 11, above, who criticises the analogy made by the panel with taxes to refuse PPMs as a ground to distinguish products. See also Brack, note 8, above, who maintains that the prohibition of PPM-based trade measures is nowhere stated in the GATT text, and that the distinction between products and PPMs would not be maintained in other areas of the GATT; and K.J. Hunt, note 3, above, at 173.
90. However, for a critique against the legal motivation of the First Tuna-Dolphin Panel Report, see H.L.Thaggert, in J. Cameron et al (eds), note 11, above, who criticises the analogy made by the panel with taxes to refuse PPMs as a ground to distinguish products. See also Brack, note 8, above, who maintains that the prohibition of PPM-based trade measures is nowhere stated in the GATT text, and that the distinction between products and PPMs would not be maintained in other areas of the GATT; and K.J. Hunt, note 3, above, at 173.
91. Demaret, in Cameron et al (eds), note 11, above.
92. Depending on factors such as climate, population density, existing levels of pollution and risk preferences.
93. D. Brack, note 8, above, at 78-79; see ako M. Schlagenhof, note 11, above, at 130.
94. D. Brack, note 8, above, at 78-79; see ako M. Schlagenhof, note 11, above, at 130.
95. D.A. Reid, The EC Directive Concerning the Importation of Skins of Certain Seal Pups (83/129/EEC): its Compatibility with the General Agreement on Tariffs and Trade (GATT), 5 E.E.L.R. 12, December 1996, at 346.
96. See D. Pearce, note 11, above.
97. As does Thaggert, in Cameron et al (eds), note 11, above, at 71.
98. For a detailed analysis of the term "like" throughout the GATT and its links with the theory of comparative advantage, see R.J. Zedolin, A theory of the GATT "like" Products Common Language Cases, 27 Vanderbilt Journal of Transnational Law 1, March 1994, pp. 33 et seq.
99. E.-U Petersmann, International Trade Law and International Environmental Law, Prevention and Settlement of International Environmental Disputes in GATT, 27 J.W.T. 1, February, 1993, pp. 43 et seq.
100. The burden of proof is on the State that invokes Article XX; see, e.g. First Tuna-Dolphin Panel Report, note 2, above, para. 5.22.
101. As follows from the Shrimp/Turtle Case (note 43, above), it should indeed first be examined whether the measure at issue comes under one of the particular exceptions (paragraph a-j) listed under Article XX GATT. Only thereafter, a further appraisal of the same measure should be made under the introductory clause of Article XX GATT.
102. E.g., First Tuna-Dolphin Panel Report, note 2, above.
103. For an overview of the meaning of "necessity" and "proportionality" throughout the GATT jurisprudence and the WTO instruments, see EMIT, Note by the Secretariat, agenda item 1, TREAV/16/Rev. 1, 14 October 1993.
104. Thailand - Restrictions on importation of and internal taxes on cigarettes, 7 November 1990, at para. 75, in Cameron et al (eds), note 11, above, pp. 60 et seq.
105. For a critique against this interpretation of "necessary", see S. Charnovitz, Exploring the Environmental Exceptions in GATT Article XX, 25 J.W.T.L. 5, October, 1991, at 49.
106. First Tuna-Dolphin Panel Report, note 2, above, at para. 5.28; see also United States - Restrictions on Imports of Tuna, Report of the Panel of June 1994, in Cameron et al (eds), note 11, above, at para. 5.35, (hereafter "Second Tuna-Dolphin Panel Report"); the Gasoline Case and the Shrimp/Turtle Case, note 43, above. For an analysis of the Gasoline Case, see G. Nogueira, The First WTO Appellate Body Review: United States - Standards for Reformulated and Commtionat Gasoline, 30 J.W.T. 6, December, 1996, pp. 5 et seq.
107. First Tuna-Dolphin Panel Report, note 2, above, at para. 5.28; see also United States - Restrictions on Imports of Tuna, Report of the Panel of June 1994, in Cameron et al (eds), note 11, above, at para. 5.35, (hereafter "Second Tuna-Dolphin Panel Report"); the Gasoline Case and the Shrimp/Turtle Case, note 43, above. For an analysis of the Gasoline Case, see G. Nogueira, The First WTO Appellate Body Review: United States - Standards for Reformulated and Commtionat Gasoline, 30 J.W.T. 6, December, 1996, pp. 5 et seq.
108. First Tuna-Dolphin Panel Report, note 2, above, at para. 5.28; see also United States - Restrictions on Imports of Tuna, Report of the Panel of June 1994, in Cameron et al (eds), note 11, above, at para. 5.35, (hereafter "Second Tuna-Dolphin Panel Report"); the Gasoline Case and the Shrimp/Turtle Case, note 43, above. For an analysis of the Gasoline Case, see G. Nogueira, The First WTO Appellate Body Review: United States - Standards for Reformulated and Commtionat Gasoline, 30 J.W.T. 6, December, 1996, pp. 5 et seq.
109. First Tuna-Dolphin Panel Report, note 2, above, at para. 5.28; see also United States - Restrictions on Imports of Tuna, Report of the Panel of June 1994, in Cameron et al (eds), note 11, above, at para. 5.35, (hereafter "Second Tuna-Dolphin Panel Report"); the Gasoline Case and the Shrimp/Turtle Case, note 43, above. For an analysis of the Gasoline Case, see G. Nogueira, The First WTO Appellate Body Review: United States - Standards for Reformulated and Commtionat Gasoline, 30 J.W.T. 6, December, 1996, pp. 5 et seq.
110. Article 4, §§1 and 3 of the Montreal Protocol.
111. K. Kummer, Providing Incentives to Comply with Multilateral Environmental Agreements:An Alternative to Sanctions?, 3 E.E.L.R. 9, October 1994, pp. 256 et seq. See also P. Demaret, in Cameron et al (eds), note 11, above, and W. Lang, Les mesures commerciales au service de la protection de l'environnement, 99 R.G.D.I. 3, 1995, pp. 545-565.
112. K. Kummer, Providing Incentives to Comply with Multilateral Environmental Agreements:An Alternative to Sanctions?, 3 E.E.L.R. 9, October 1994, pp. 256 et seq. See also P. Demaret, in Cameron et al (eds), note 11, above, and W. Lang, Les mesures commerciales au service de la protection de l'environnement, 99 R.G.D.I. 3, 1995, pp. 545-565.
113. K. Kummer, Providing Incentives to Comply with Multilateral Environmental Agreements:An Alternative to Sanctions?, 3 E.E.L.R. 9, October 1994, pp. 256 et seq. See also P. Demaret, in Cameron et al (eds), note 11, above, and W. Lang, Les mesures commerciales au service de la protection de l'environnement, 99 R.G.D.I. 3, 1995, pp. 545-565.
114. W. Lang, note 79, above.
115. D. Brack, note 8, above, at 51.
116. D. Brack, note 8, above. See also Reinstein, quoted by D. Pearce, note 11, above; P. Demaret, note 11, above.
117. D. Brack, note 8, above. See also Reinstein, quoted by D. Pearce, note 11, above; P. Demaret, note 11, above.
118. D. Brack, note 8, above. See also Reinstein, quoted by D. Pearce, note 11, above; P. Demaret, note 11, above.
119. Also J.T. Lang insists very much on the importance of trade restrictions to make environmental treaties effective: J.T. Lang, Commentary - Some Implications of the Montreal Protocol to the Ozone Convention, in W. Lang, H. Neuhold and K. Zemanek (eds), Environmental Protection and International Law. International Environmental Law and Policy Series, Graham and Trotman/Martinus Nijhoff, London/Dordrecht/Boston, 1991, pp. 179 et seq.
120. Article 4 §4 of the Montreal Protocol.
121. W. Lang, note 79, above.
122. See GATT, International Trade 1990-91, note 14, above, at 25, note 33.
123. House of Commons Environment Committee, Inquiry into World Trade and Environment, evidence session of 14 February 1996, as cited in D. Brack, note 8, above, at 74-75.
124. D. Brack, note 8, above, at 75-78.
125. D. Brack, note 8, above.
126. See, inter alia, CTE, Non-Paper by India, 23 July 1996.
127. First Tuna-Dolphin Panel Report, para. 5.28, note 2, above.
128. WTO Appellate Body, Gasoline Case, note 43, above.
129. See, e.g., Canada - Measures Affecting Exports of Unprocessed Herring and Salmon, 22 March 1988, BISD 35S/98, at 114, para. 4.6, (hereafter "Unprocessed Herring and Salmon Case").
130. See also WTO Appellate Body, Gasoline Case, note 43, above, paras. 6.39 et seq.
131. WTO Appellate Body, Gasoline Case, note 43, above, pp. 19 et seq. For a summary of the case, see M.D. Shenck, International Decisions; US - Standards for Reformulated and Conventional Gasoline, 90 American Journal of Int'l. L. 4, October 1996, pp. 663-674.
132. WTO Appellate Body, Gasoline Case, note 43, above, pp. 19 et seq. For a summary of the case, see M.D. Shenck, International Decisions; US - Standards for Reformulated and Conventional Gasoline, 90 American Journal of Int'l. L. 4, October 1996, pp. 663-674.
133. Cf. section II.D.1.(a), above.
134. WTO Appellate Body, Gasoline Case, note 43, above, at 19.
135. Unprocessed Herring and Salmon Case, note 92, above.
136. Cf. section at II.D.1, (a), above.
137. See WTO Appellate Body, Gasoline Case, note 43, above, at 21.
138. This case dealt with a unilateral import ban, but it can be argued that the same rules would be applied to MEAs containing trade restrictions towards non-parties.
139. First Tuna-Dolphin Panel Report, note 2, above, at para. 5.26. The same arguments were used under Article XX (g) at paras 5.31-32.
140. GATT panels used "extraterritorial" and "extra-jurisdictional" as synonyms. For a critique, see P. Demaret, in Cameron et al (eds), note 11, above, at 61-62.
141. Marine Mammal Protection Act, which contained extensive provisions designed to reduce incidental dolphin mortality resulting from tuna fishing in the Eastern Tropical Pacific (ETP) and which required the US government to ban imports of tuna from other States fishing in the ETP unless they had dolphin-protecting programmes comparable to the United States, and unless, for a given period, the average incidental taking rate for their vessels did not exceed 1.25 times that recorded for US vessels during the same period. On the basis of this Act, the United States banned the imports of Yellow-fin tuna from Mexico. For more details, see, e.g. B. Kingsburry, The Tuna-Dolphin Controversy, the World Trade Organization and the Liberal Project to Reconceptualize International Law, 5 Y.B. of Int'l. Env. L. 1994, pp. 11 et seq.
142. For an examination of these proposals, see, section III below.
143. Cf. note 77, above.
144. See paras 3.16 et seq. of the First Tuna-Dolphin Panel Report, note 2, above.
145. See paras 5.15-22. The measure, however, was not considered necessary, and thus contrary to GATT.
146. See para. 5.20 of the First Tuna-Dolphin Panel Report, note 2, above.
147. See also Principle 2 of the Rio Declaration.
148. That the sovereign rights to have a safe and healthy life may not impair the sovereign rights to release CFCs.
149. Since there are no non-members who produce ODS. D. Brack, note 8, above, and UNEP, Status of Ratification, etc., note 35, above.
150. Since there are no non-members who produce ODS. D. Brack, note 8, above, and UNEP, Status of Ratification, etc., note 35, above.
151. Quoted in S. Charnovitz, GATT and the Environment: Examining the Issues, 4 Int'l. Env'l. Affairs 3, Summer 1992, at 204.
152. Unilateral action to prevent damage to the global commons does not seem to be desirable, because of the same risk of abuse for protectionist aims.
153. See also M. Düerkop, Trade and Environment: International Trade Law Aspects of the Proposed EC Directive Introducing a Tax on Carbon Dioxide Emissions and Energy, 31 C.M.L.R. 1994, at 838-839.
154. Paras 5.26 and 5.38 of the Second Tuna-Dolphin Panel Report, note 77, above.
155. Cameron et al (eds), note 11, above, at 17.
156. See also W. Lang, note 82, above, and P. Demaret in Cameron et al (eds), note 11, above.
157. See also W. Lang, note 82, above, and P. Demaret in Cameron et al (eds), note 11, above.
158. WTO Appellate Body, Gasoline Case, note 43, above, at 22.
159. S. Charnovitz, note 111, above.
160. D. Pearce, in Cameron et al (eds), note 11, above, at 32-33. Similarly, Baker maintains that; "A state which applies an international environmental agreement creates different conditions for protection of the environment than one which does not." See B. Baker, Protection, Not Protectionism: Multilateral Environmental Agreements and the GATT, 26 Vanderbilt Journal of Transnational Law 1993, at 450-451; See Also G. Van Calster, note 3, above, at 48.
161. D. Pearce, in Cameron et al (eds), note 11, above, at 32-33. Similarly, Baker maintains that; "A state which applies an international environmental agreement creates different conditions for protection of the environment than one which does not." See B. Baker, Protection, Not Protectionism: Multilateral Environmental Agreements and the GATT, 26 Vanderbilt Journal of Transnational Law 1993, at 450-451; See Also G. Van Calster, note 3, above, at 48.
162. D. Pearce, in Cameron et al (eds), note 11, above, at 32-33. Similarly, Baker maintains that; "A state which applies an international environmental agreement creates different conditions for protection of the environment than one which does not." See B. Baker, Protection, Not Protectionism: Multilateral Environmental Agreements and the GATT, 26 Vanderbilt Journal of Transnational Law 1993, at 450-451; See Also G. Van Calster, note 3, above, at 48.
163. D. Pearce, in Cameron et al (eds), note 11, above.
164. Several WTO panels have emphasized the importance of the effort to engage in serious across-the-border negotiations in the assessment of the discriminatory nature of a trade-restrictive measure. See e.g., the Gasoline Case and the Shrimp/Turtle Case, note 43, above.
165. In the 1982 case United States Prohibition of Imports of Tuna Products from Canada, (GATT, BISD, 29S/108), the panel found that since the US restrictions "were taken as a trade measure and publicly announced as such", they could not be considered to be disguised.
166. WTO Appellate Body, Gasoline Case, note 43, above, at 25.
167. Many other solutions have been proposed in the literature, such as a global countervailing environmental institution, a different adjudicative body, etc. An analysis of all these proposals, however, does not fall within the scope of this article.
168. Above, at section II.D.1.(b).
169. See GATT, International Trade 1990-91, note 14, above, at 25, note 33.
170. E.g., the EC and Swiss proposal to the Singapore Conference: CTE, Non-Paper by the European Community, 19 February 1996; CTE, Non-Paper by Switzerland, 20 May 1996, also, e.g., M. Lenard, The World Trade Organization and Disputes Involving Multilateral Environmental Agreements, 5 R.E.C.I.E.L. 11, November 1996, at 314. The GATT Secretariat should thereby probably be assisted by environmental specialists (in particular concerning the interpretation of the environmental "necessity") in order to avoid that the MEAs would systematically be found to violate the GATT.
171. E.g., the EC and Swiss proposal to the Singapore Conference: CTE, Non-Paper by the European Community, 19 February 1996; CTE, Non-Paper by Switzerland, 20 May 1996, also, e.g., M. Lenard, The World Trade Organization and Disputes Involving Multilateral Environmental Agreements, 5 R.E.C.I.E.L. 11, November 1996, at 314. The GATT Secretariat should thereby probably be assisted by environmental specialists (in particular concerning the interpretation of the environmental "necessity") in order to avoid that the MEAs would systematically be found to violate the GATT.
172. E.g., the EC and Swiss proposal to the Singapore Conference: CTE, Non-Paper by the European Community, 19 February 1996; CTE, Non-Paper by Switzerland, 20 May 1996, also, e.g., M. Lenard, The World Trade Organization and Disputes Involving Multilateral Environmental Agreements, 5 R.E.C.I.E.L. 11, November 1996, at 314. The GATT Secretariat should thereby probably be assisted by environmental specialists (in particular concerning the interpretation of the environmental "necessity") in order to avoid that the MEAs would systematically be found to violate the GATT.
173. See Article 3.2 of the DSU, which directs Appellate Bodies to clarify the provisions of the GATT "in accordance with customary rules of interpretation of international law". See also the Gasoline Case and the Shrimp/Turtle Case, note 43, above. Petersmann proposes to conclude a WTO-Understanding incorporating universally agreed UNCED-principles, which WTO panels should apply: E.-U. Petersmann, The Transformation of the World Trading System Through the 1994 Agreement Establishing the World Trade Organization, 6 E.J.I.L. 2, 1995, at 219.
174. See Article 3.2 of the DSU, which directs Appellate Bodies to clarify the provisions of the GATT "in accordance with customary rules of interpretation of international law". See also the Gasoline Case and the Shrimp/Turtle Case, note 43, above. Petersmann proposes to conclude a WTO-Understanding incorporating universally agreed UNCED-principles, which WTO panels should apply: E.-U. Petersmann, The Transformation of the World Trading System Through the 1994 Agreement Establishing the World Trade Organization, 6 E.J.I.L. 2, 1995, at 219.
175. Defined for the first time in the 1987 Brundtland Report as "development that meets the needs of the present without compromising the ability of future generations to meet their own needs", see also Principle 21 of the Rio Declaration. For more details, see, e.g., M. Pallemaerts, La Conférence de Rio: Grandeur on Décadence du droit international de l'environnement?, 28 R.B.D.I. 1, 1995, pp. 173 et seq. For more details about general principles of international law in a (trade)-environment context, see P. Sands, Principles of International Environmental Law, I, 1994, Manchester University Press, Manchester/New York, pp. 181 et seq.
176. Defined for the first time in the 1987 Brundtland Report as "development that meets the needs of the present without compromising the ability of future generations to meet their own needs", see also Principle 21 of the Rio Declaration. For more details, see, e.g., M. Pallemaerts, La Conférence de Rio: Grandeur on Décadence du droit international de l'environnement?, 28 R.B.D.I. 1, 1995, pp. 173 et seq. For more details about general principles of international law in a (trade)-environment context, see P. Sands, Principles of International Environmental Law, I, 1994, Manchester University Press, Manchester/New York, pp. 181 et seq.
177. TREMs are permitted under EC Law if they are genuinely intended to protect the environment, and if they are not disproportionate or discriminatory. See P. Sands, Danish Bottles and Mexican Tuna, 1 R.E.C.I.E.L. 1, 1992, at 32-33; see also P. Demaret, note 11, above.
178. TREMs are permitted under EC Law if they are genuinely intended to protect the environment, and if they are not disproportionate or discriminatory. See P. Sands, Danish Bottles and Mexican Tuna, 1 R.E.C.I.E.L. 1, 1992, at 32-33; see also P. Demaret, note 11, above.
179. See also M.D. Shenck, note 93, above, at 673.
180. See also J.H. Jackson, in Cameron et al (eds), note 11, above.
181. CTE, Non-Paper by the European Community, 19 February 1996.
182. For an analysis of that definition, see M. Lenard, note 127, above, at 311-312.
183. CTE, Non-Paper by Switzerland, 20 May 1996, and CTE, Submission by New Zealand, 15 February 1996, WT/CTE/W/20.
184. CTE, Non-Paper by Switzerland, 20 May 1996, and CTE, Submission by New Zealand, 15 February 1996, WT/CTE/W/20.
185. UNICE, UNICE Position on the Relationship between the Privisions of the Multilateral Trading System and Trade Measures/or Environmental Purposes, including those pursuant to Multilateral Environmental Agreements, 22 July 1996.
186. See GATT, International Trade 1990-91, note 14, above.
187. For an overview of the GATT experience concerning Article XXV and the modifications resulting from the Uruguay Rounds, see EMIT, Agenda Item I: trade provisions contained in existing multilateral environmental agreements vis-à-vis GATT principles and provisions, Note by the Secretariat, GATT/TRE/W/18, 1 October 1993.
188. It requires exceptional circumstances to be proven every year and a three-quarter majority of the WTO Members in favour of the adoption of the waiver. (Article IX (3) and (4) WTO Agreement).
189. D. Brack, note 8, above, at 82-83.
190. Article IX WTO Agreement requires that a waiver be renewed each year. Hong Kong therefore proposed at the Singapore Conference to adopt a "negative vetting approach" whereby the waiver would be automatically renewed if no new developments affect the exceptional circumstances which justified its granting in the first place. See CTE, Non-Paper by Hong Kong, 22 July 1996.
191. See also Cameron and Ward, in Cameron et al (eds), note 11, above; and GATT, International Trade 1990-91, note 14, above.
192. See also Cameron and Ward, in Cameron et al (eds), note 11, above; and GATT, International Trade 1990-91, note 14, above.
193. L. Jenkins, Trade Sanctions: An Effective Enforcement Tool, 2 R.E.C.I.E.L. 4, pp.363 et seq.
194. G. Van Calster, note 3, above.
195. P. Demaret, in Cameron et al (eds), note 11, above.
196. gee e.g. Non-paper by the EC, note 133, above, also UNICE, note 136, above.
197. E.g. L. Jackson, in Cameron et al (eds), note 11, above; and S. Charnovitz, note 111, above.
198. E.g. L. Jackson, in Cameron et al (eds), note 11, above; and S. Charnovitz, note 111, above.
199. For a detailed examination of Article XX (h) by the GATT Secretariat, see EMIT, Agenda Item I: Trade Provisions Contained in Existing Multilateral Environmental Agreements vis-à-vis GATT Principles and Provisions, Note by the Secretariat, TRE/W/17/Rev.1, 14 October 1993.
200. P. Demaret, in Cameron et al (eds), note 11, above.
201. Article 104 NAFTA states that the Montreal Protocol, the Basle Convention and CITES should be given precedence if there is a conflict between a party's obligations under any of these MEAs and the GATT. The least NAFTA-inconsistent measure should thereby be chosen if there is a choice in the MEA. For more details, see Esty, in Cameron et al (eds), note 11, above, at 373. See also A.M. Rugman, J. Kirton and J. Soloway, NAFTA, Environmental Regulations, and Canadian Competitiveness, 31 J.W.T. 4, August, 1997, pp. 129 et seq.
202. Article 104 NAFTA states that the Montreal Protocol, the Basle Convention and CITES should be given precedence if there is a conflict between a party's obligations under any of these MEAs and the GATT. The least NAFTA-inconsistent measure should thereby be chosen if there is a choice in the MEA. For more details, see Esty, in Cameron et al (eds), note 11, above, at 373. See also A.M. Rugman, J. Kirton and J. Soloway, NAFTA, Environmental Regulations, and Canadian Competitiveness, 31 J.W.T. 4, August, 1997, pp. 129 et seq.
203. This provision allows to "discriminate" products of prison labour, and has also been cited in the Second Tuna-Dolphin Panel Report as being a "context" argument to allow the extra-territorial application of Article XX (g), note 77, above, at para. 5.16.
204. This is also the solution proposed in the Shrimp/Turtle Case, note 43, above.
205. Unbalanced in favour of trade, and almost completely ignoring environmental concerns, D. Esty, Greening the GATT - Trade, Environment, and the Future, Institute for International Economics, Washington D.C., 1994.
206. See, e.g., the WTO Appellate Body in the Gasoline Case and in the Shrimp/Turtle Case, note 43, above.
207. D. Esty, note 15, above.
208. See e.g. the Shrimp/Turtle Case, note 43, above, in which the panel invoked the importance of specific recommendations by the CTE to the WTO members in the solution of the trade - environment debate.
209. See, also, E.-U. Petersmann, note 128, above.