Risk and precaution in World Trade Organization law

Journal of World Trade

Volumn 40, Issue 5, 2006, Pages 837-864

  Cheyne, Ilona ^a  

^a NEWCASTLE UNIVERSITY   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

RISK ASSESSMENT; TRADE-ENVIRONMENT RELATIONS; WORLD TRADE ORGANIZATION;

EID: 33750099856     PISSN: 10116702     EISSN: None     Source Type: Journal    
DOI: 10.54648/trad2006042     Document Type: Article

References (241)

1. Joanne Scott, International Trade and Environmental Governance: Relating Rules (and Standards) in the EU and the WTO, 15 E.J.I.L. (2004), pp. 307, 310-311.
2. See also Richard H. Steinberg, Judicial Lawmaking at the WTO: Discursive, Constitutional, and Political Constraints, 98 A.J.I.L. (2004), p. 247;
3. Joel P. Trachtman, The Domain of WTO Dispute Resolution, 40 Harvard Int'l L.J. (1999), p. 333.
4. The question of whether the WTO treaty regime is "closed" or "open" to principles of general international law falls outside the scope of this article.
5. See, e.g., Steven P. Croley and John H. Jackson, WTO Dispute Procedures, Standard of Review, and Deference to National Governments, 90 A.J.I.L. (1996), p. 193;
6. Claus-Dieter Ehlermann and Nicolas Lockhart, Standard of Review in WTO Law, 7 J.I.E.L. (2004), p. 491;
7. Michael Lennard, Navigating by the Stars: Interpreting the WTO Agreement, 5 J.I.E.L. (2002), p. 17;
8. Matthias Oesch, Standards of Review in WTO Dispute Resolution, 6 J.I.E.L. (2003), p. 635;
9. Matthias Oesch, Standards of Review in WTO Dispute Resolution (Oxford: Oxford University Press, 2003);
10. Holger Spamann, Standard of Review for World Trade Organization Panels in Trade Remedy Cases: A Critical Analysis, 38 Journal of World Trade (2004), p. 509.
11. For an example of the criticism that law-making by undemocratic bodies infringes national sovereignty, see John Ragosta, Navin Joneja and Mickhail Zeldovich, WTO Dispute Settlement: The System is Flawed and Must Be Fixed, 37 International Lawyer (2003), p. 697.
12. See, e.g., John Adams, Risk, (London: UCL Press, 1995);
13. Robert Baldwin (ed.), Law and Uncertainty: Risks and Legal Processes (London: Kluwer Law International, 1997);
14. Yacov Y. Haimes, Risk Modeling, Assessment and Management (New York: Wiley, 2004);
15. Roger E. Kasperson, Social Contours of Risk (London: Earthscan, 2005);
16. Jenny Steele, Risks and Legal Theory (Oxford: Hart, 2004).
17. Alan O. Sykes, Domestic Regulation, Sovereignty, and Scientific Evidence Requirements: A Pessimistic View, 3 Chicago J. Int'l L. (2002), pp. 353, 366.
18. Agreement on the Application of Sanitary and Phytosanitary Measures, GATT Secretariat, The Results of the Uruguay Round of Multilateral Trade Negotiations, the Legal Texts (Geneva: GATT, 1994), p. 69.
19. See, e.g., Commission of the European Communities, Communication from the Commission on the Precautionary Principle, COM(2000) 1, which divides risk analysis into three parts: risk assessment, risk management and risk communication.
20. See also Jim Dratwa, Taking Risks with the Precautionary Principle: Food (and the Environment) for Thought at the European Commission, 4 Journal of Environmental Policy and Planning (2002), p. 197.
21. Department of Environment, Food and Rural Affairs, Guidelines for Environmental Risk Assessment and Management (Guidelines), available at , Chapter 1, Section 1.3: A hazard is "a property or situation that in particular circumstances could lead to harm". Risk only occurs where there is exposure to a hazard;
22. and see David A. Wirth, The Role of Science in the Uruguay Round and NAFTA Trade Disciplines, 27 Cornell Int'l L.J. (1994), pp. 817, 834.
23. Presidential/Congressional Commission on Risk Assessment and Risk Management, Final Report, Volume 1 (Washington, D.C.: 1997), p. 1, available at (visited 2 September 2005).
24. Id.
25. See, e.g., Jan Bohanes, Risk Regulation in WTO Law: A Procedure-based Approach to the Precautionary Principle, 40 Columbia J. Transnat'l L. (2002), pp. 323, 335: "'Risk assessment' denotes a precise probabilistic estimate of the potentially harmful effect of a substance or activity; it should be an objective, quantitative result derived exclusively by scientific methods and (laboratory) testing procedures. 'Risk management', in contrast, is a policy determination based on a subjective value judgement;..."
26. See, e.g., Vern R. Walker, Keeping the WTO from Becoming the "World Trans-Science Organization": Scientific Uncertainty, Science Policy, and Factfinding in the Growth Hormones Dispute, 31 Cornell Int'l L.J. (1998), p. 251;
27. Wirth, as note 8 above, pp. 833-834.
28. See Tim Sampson, Environmental Risk Assessment of GMOs under Directive 2001/18: An Effective Safety-Net or a "Collective Illusion"?, 25 European Intellectual Property Review (2003), p. 79;
29. Vern R. Walker, The Myth of Science as a "Neutral Arbiter" for Triggering Precautions, 26 Boston College Int'l Comp. L. Rev. (2003), p. 197;
30. David Winickoff, Sheila Jasanoff, Lawrence Busch, Robin Grove-White and Brian Wynne, Adjudicating the GM Food Wars: Science, Risk, and Democracy in World Trade Law, 30 Yale J.I.L. (2005), pp. 81, 94-100;
31. Wirth, as note 8 above, pp. 833-836;
32. Bohanes, as note 11 above, pp. 354-359.
33. Different conceptions of uncertainty have been developed to identify lack of knowledge in different situations. For example, Walker lists five types of scientific uncertainty: conceptual, measurement, sampling, modelling and causal. See Walker, as note 13 above, pp. 204-211.
34. See also Daniel A. Farber, Probabilities Behaving Badly: Complexity Theory and Environmental Uncertainty, 37 U.C. David L. Rev. (2003), p. 145;
35. Doaa Abdel Motaal, Is the World Trade Organization Anti-Precaution?, 39 Journal of World Trade (2005), pp. 483, 493-497;
36. Sykes, as note 5 above, pp. 363-365;
37. Winickoff et al., as note 13 above, pp. 104-106;
38. Brian Wynne, Implementation of Greenhouse Gas Reductions in the European Community: Institutional and Cultural Factors, 3 Global Environmental Change (1993), pp. 101, 111.
39. See, e.g., Bohanes, as note 11 above, pp. 342-343;
40. Dratwa, as note 7 above, pp. 206-207;
41. Cass R. Sunstein, Laws of Fear: Beyond the Precautionary Principle (Cambridge: Cambridge University Press, 2005).
42. See, e.g., Bohanes, as note 11 above, p. 355. This aspect of risk management has also given rise to arguments about public participation, transparency and good governance.
43. See, e.g., Bohanes, as note 11 above, pp. 351-356;
44. Robert Howse, Democracy, Science, and Free Trade: Risk Regulation on Trial at the World Trade Organization, 98 Michigan L. Rev. (2000), p. 2329;
45. David Winickoff et al., as note 13 above, pp. 99-100.
46. Guidelines, as note 8 above, ch. 8, section 8.4.
47. See Wirth, as note 8 above, pp. 841-845.
48. Ibid., pp. 841-843, 854-858.
49. Andrew T. Guzman, Food Fears: Health and Safety at the WTO, 45 Virginia J.I.L. (2004), p. 1. Other parts of risk management, such as monitoring and communication, will not be discussed here.
50. See Appellate Body Report, Australia - Measures Affecting Importation of Salmon (Australia - Salmon), WT/DS18/AB/R, adopted 6 November 1998, DSR 1998: VIII, 3327, paras 200-203.
51. See also OIE, Terrestrial Animal Health Code, Article 1.3.2.6, available at (visited 30 August 2005);
52. Winickoff et al., as note 13 above.
53. Bohanes, as note 11 above, pp. 343-345.
54. Bohanes, as note 11 above, pp. 360-369;
55. Howard F. Chang, Risk Regulation, Endogenous Public Concerns, and the Hormones Dispute: Nothing to Fear but Fear Itself?, 77 Southern California L. Rev. (2004), p. 743;
56. Steve Charnovitz, An Analysis of Pascal Lamy's Proposal on Collective Preferences, 8 J.I.E.L. (2005), pp. 449, 455-459;
57. Chris Hilson, Planning Law and Public Perceptions of Risk: Evidence of Concern or Concern Based on Evidence, Journal of Planning & Environment Law (2004), p. 1638;
58. Neil Stanley, Public Concern: The Decision-Makers' Dilemma, Journal of Planning & Environment Law (1998), p. 919.
59. Wirth, as note 8 above, p. 818.
60. Pascal Lamy, The Emergence of Collective Preferences in International Trade: Implications for Regulating Globalisation, 15 September 2004, available at: (visited 3 November 2005).
61. Charnovitz, as note 24 above, p. 458.
62. Appellate Body Report, European Commumties - Measures Concerning Meat and Meat Products (EC-Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, DSR 1998:I, 135, para. 245,
63. cited and considered by Charnovitz, as note 24 above, p. 457, note 41.
64. Ibid.
65. See also Charnovitz, as note 24 above.
66. See Axel Desmedt, Proportionality in WTO Law, 4 J.I.E.L. (2001), pp. 441, 444-446;
67. Gabrielle Marceau and Joel P. Trachtman, The Technical Barriers to Trade Agreement, the Sanitary and Phytosanitary Measures Agreement, and the General Agreement on Tariffs and Trade, 36 Journal of World Trade (2002), pp. 811, 824.
68. See, e.g., Bohanes, as note 11 above, pp. 330-334;
69. Nicolas de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules (Oxford: Oxford University Press, 2002);
70. Dratwa, as note 7 above;
71. David Freestone and Ellen Hey, The Precautionary Principle and International Law (The Hague: Kluwer Law International, 1996);
72. Ronnie Harding and Elizabeth Fisher (eds), Perspectives on the Precautionary Principle (Sydney: Federation Press, 1999);
73. James E. Hickey Jr and Vern R. Walker, Refining the Precautionary Principle in International Environmental Law, 14 Virginia Environmental L.J. (1995), p. 423;
74. Tim O'Riordan, James Cameron and Andrew Jordan (eds.), Reinterpreting the Precautionary Principle (London: Cameron May, 2001);
75. Christopher D. Stone, Is There a Precautionary Principle?, 31 Environmental Law Reporter (2001), p. 10790;
76. Arie Trouwborst, Evolution and Status of the Precautionary Principle in International Law (The Hague: Kluwer Law International, 2002);
77. Wirth, as note 8 above, pp. 838-840.
78. Principle 15 of the Rio Declaration, adopted at the 1992 United Nations Conference for Environment and Development, UN Doc.A/CONF. 151/5/Rev. 1, 13 June 1992, 31 I.L.M., p. 874.
79. For a contrary view, see Laurent A. Ruessmann, Putting the Precautionary Principle in Its Place: Parameters for the Proper Application of a Precautionary Approach and the Implications for Developing Countries in the Light of the Doha WTO Ministerial, 17 American University Int'l L. Rev. (2002), pp. 905, 909-911;
80. Wingspread Statement on the Precautionary Principle, 1998 at (visited 30 August 2005). Policy decisions or programmes based on the precautionary principle constitute specific applications of the principle to individual problems.
81. Some commentators differentiate between the precautionary principle and a precautionary approach. In this article, however, the terms will be used interchangeably according to context.
82. See note 15 above.
83. Bohanes, as note 11 above, pp. 339-340;
84. Wirth, as note 8 above, p. 837.
85. Hickey and Walker, as note 31 above, pp. 437-438;
86. Motaal, as note 14 above, p. 495.
87. Ehlermann and Lockhart, as note 3 above, p. 493.
88. See also Oesch, as note 3 above, pp. 637-639;
89. Thomas Cottier, "Risk Management Experience in WTO Dispute Settlement", in David Robertson and Aynsley Kellow (eds), Globalization and the Environment: Risk Assessment and the WTO (Cheltenham: Edward Elgar, 2001).
90. See, e.g., the Appellate Body's statement: "The standard of review appropriately applicable in proceedings ... must reflect the balance established ... between the jurisdictional competences conceded by the Members to the WTO and the jurisdictional competences retained by the Members for themselves." Appellate Body Report, EC - Hormones as note 28 above, para. 115.
91. See also Deborah Z. Cass, The "Constitutionalization" of International Trade Law: Judicial Norm-Generation as the Engine of Constitutional Development Interna0tional Trade, 12 E.J.I.L. (2001), pp. 3, 57-60.
92. Spamann, as note 3 above, pp. 532-533.
93. GATT Secretariat, The Results of the Uruguay Round of Multilateral Trade Negotiations, the Legal Texts (Geneva: GATT, 1994) pp. 353, 360.
94. Appellate Body Report, EC - Hormones, as note 28 above, para. 117.
95. See also Spamann, as note 3 above, pp. 521-523.
96. It should be noted, however, that there appears to be an exception to the normal approach when reviewing questions of law in the Antidumping Agreement. See Croley and Jackson, as note 3 above;
97. Ehlermann and Lockhard, as note 3 above, pp. 498-501, 503-508;
98. Lee D. Hamilton, US Antidumping Decisions and the WTO Standard of Review: Deference or Disregard?, 4 Chicago J.I.L. (2003), p. 265;
99. Spamann, as note 3 above.
100. See, e.g., Ehlermann and Lockhart, as note 3 above, p. 498.
101. Appellate Body Report, EC - Hormones, as note 28 above, para. 117.
102. This is usually justified as a matter of competence and resources, since a panel will tend to be more deficient in both than a national authority. Jeffrey Atik, Science and International Regulatory Convergence, 17 Northwestern J. Int'l L. Bus. (1996-1997), p. 736;
103. Croley and Jackson, as note 3 above, pp. 208-209;
104. Ehlermann and Lockhart, as note 3 above, p. 502;
105. Oesch, as note 3 above, pp. 640-641;
106. Spamann, as note 3 above, pp. 514-516;
107. Winickoff et al., as note 13 above, pp. 108-111.
108. For a contrary view, see Guzman, as note 20 above, pp. 11-31.
109. See, e.g., Ocsch, as note 3 above.
110. See Spamann, as note 3 above, pp. 533-535.
111. Agreement on Safeguards, GATT Secretariat, The Results of the Uruguay Round of Multilateral Trade Negotiations, the Legal Texts (Geneva: GATT, 1994), p. 273.
112. Appellate Body Report, United States - Safeguard Measure on Imports of Fresh, Chilled or Frozen Lamb from Australia (US - Lamb), WT/DS177/AB/R, WT/DS178/AB/R, adopted 16 May 2001, paras 101-106.
113. Ibid., para. 106.
114. For arguments that transparency and procedural guarantees should be central to review of national measures, see Bohanes, as note 11 above;
115. Guzman, as note 20 above;
116. Patricia Isela Hansen, Transparency, Standards of Review, and the Use of Trade Measures to Protect the Global Environment, 39 Virginia J.I.L. (1999), p. 1017.
117. See, e.g., Andrew Green, Climate Change, Regulatory Policy and the WTO, 8 J.I.E.L. (2005), pp. 143, 170-173;
118. Oesch, as note 3 above, pp. 650-651.
119. Panel Report, European Communities - Measures Affecting Asbestos and Asbestos - Containing Products (EC-Asbestos), WT/DS135/R, adopted 5 April 2001, as modified by the Appellate Body Report, WT/DS135/AB/R, paras 8.181-8.182.
120. See also Panel Report, European Communities - Measures Concerning Meat and Meat Products (EC - Hormones), WT/DS26/R, WT/DS48/R., adopted 13 February 1998, as modified by the Appellate Body Report, WT/DS26/AB/R, WT/DS48/AB/P,, DSR 1998:I, 135, para. 8.101;
121. Panel Report, Australia - Measures Affecting Importation of Salmon (Australia - Salmon), WT/DS18/R, adopted 6 November 1998, as modified by the Appellate Body Report, WT/DS18/AB/R, DAR 1998:VIII, para. 8.41.
122. Panel Report, EC - Asbestos, ibid., para. 8.193.
123. Ibid., para. 8.194.
124. See, e.g., Marceau and Trachtman, as note 30 above.
125. Article 1. SPS measures are defined in Annex 1 of the Agreement, and for reinclude any law or regulation of pests, diseases, disease-carrying organisms or disease-causing organisms, and additives, contaminants, toxins or disease-causing organisms in foods, beverages or feedstuffs. See Steve Charnovitz, The Supervision of Health and Biosafety Regulation by World Trade Rules, 13 Tulane Environmental L.J. (2000), p. 271;
126. Joost Pauwelyn, The WTO Agreement on Sanitary and Phytosanitary (SPS) Measures as Applied in the First Three SPS Disputes, 2 J.I.E.L. (1999), p. 641;
127. Reinhard Quick and Andreas Blüthner, Has the Appellate Body Erred? An Appraisal and Criticism of the Rule in the WTO Hormones Case, 2 J.I.E.L. (1999), p. 603;
128. David G. Victor, The Sanitary and Phytosanitary Agreement of the World Trade Organization: An Assessment After Five Years, 32 N.Y.U.J. Int'l L. Pol. (2000), p. 865.
129. Article XX(b) permits measures that are "necessary to protect human, animal or plant life or health", and is discussed further below.
130. Article 3.1.
131. The Appellate Body in EC - Hormones rejected the Panel's finding that there was an obligation to conform to international standards. The Appellate Body drew a clear distinction between an obligation that a measure be "in conformity" with an international standard and an obligation that it should be "based on" it, and noted that the objective of harmonization embodied in Article 3.1 was merely an aspiration to be achieved in the future. As note 39 above, para. 165. Furthermore, the right to impose a higher standard under Article 3.3 was "an autonomous right" rather than an exception. Paras 104, 171-172.
132. Article 2.2-3.
133. The Appellate Body has taken a strict view of the conditions contained in Article 5.7. Thus the existence of sufficient evidence excludes the right to take provisional measures. See Appellate Body Report, Japan - Measures Affecting the Importation of Apples, WT/DS245/AB/R, adopted 10 December 2003, paras 183-184. Equally, a measure that had been in place for almost 30 years without any apparent review could not be justified under Article 5.7.
134. See Appellate Body Report, Japan - Measures Affecting Agricultural Products (Japan - Agricultural Products II), WT/DS76/AB/R, adopted 19 March 1999, DSR 1999:I, para. 93.
135. Appellate Body Report, EC - Hormones, as note 28 above.
136. Para. 124
137. Article 5. 1.
138. Appellate Body Report, EC - Hormones, as note 28 above, para. 189.
139. Ibid., para. 193.
140. See Desmedt, as note 30 above, pp. 454-455.
141. A fundamental reason for requiring a measure to be based on a risk assessment was that "the object and purpose of the SPS as a whole was based on a carefully negotiated balance between the need to avoid arbitrary or unjustifiable discrimination or disguised restrictions on trade, and the right of Member States to take appropriate measures to protect human life and health". Para. 177.
142. Paras 200-201. See also Appellate Body Peport, Australia - Salmon, as note 21 above.
143. Article 5.1-2.
144. Appellate Body Report, EC - Hormones, as note 28 above, para. 187.
145. Para. 187. See also Japan - Measures Affecting the Importation of Apples: Recourse to Article 21.5 of the DSU by the United States (WT/ DS245/RW), adopted 20 July 2005, paras 8.47-8.65 (insufficient evidence under Article 2.2 from laboratory tests having little resemblance to natural conditions).
146. See Quick and Blüthner, as note 56 above, pp. 618-619.
147. Appellate Body Peport, Australia - Salmon, as note 21 above, para. 120.
148. Panel Report, EC - Hormones, as note 52 above, para. 8.94. The strict reason for this finding was that there was no mention of the term "risk management" in the SPS and that it was only permissible to interpret the actual terms of the agreement.
149. See Appellate Body Report, EC - Hormones, as note 28 above, para. 181.
150. See Walker, as note 12 above, pp. 304, 306.
151. Appellate Body Report, Australia - Salmon, as note 21 above, para. 199.
152. Panel Report, EC - Hormones, as note 52 above, para. 8.166.
153. At most, arbitrary or unjustifiable discrimination in the level of protection would operate as a warning signal that the measure might be discriminatory or a disguised restriction on trade. Appellate Body Report, EC - Hormones, as note 28 above, paras 214-215. Consistency of appropriate levels of protection was a goal for the future and not a legal obligation (para. 213).
154. See Guidelines to Further Practical Implementation of Article 5.5, G/SPS/ 15.
155. See also Panel Report, Australia - Salmon, as note 52 above, paras 8.149-8.151;
156. Appellate Body Report, Australia - Salmon, as note 21 above, paras 162-169;
157. Quick and Blüthner, as note 56 above, pp. 621-623.
158. Appellate Body Report, EC - Hormones, as note 28 above, para. 124.
159. Para. 194.
160. Id.
161. Paras 184-186;
162. Appellate Body Report, Australia - Salmon, as note 21 above, para. 124. These questions have been dealt with similarly in EC law. The European Court of Justice has stated that the threshold of risk required to invoke the precautionary principle must be more than a "purely hypothetical" risk, and it may not be founded on "mere suppositions not yet scientifically verified".
163. See Case C-236/01, Monsanto [2003] ECR I-08105, para. 106;
164. Case E-3/00, EFTA Surveillance Authority v Norway EFTA Court Reports 2000-2001, p. 73, paras 36-38. It must be "adequately backed up by the scientific data available at the time".
165. See Case T-13/99, Pfizer v Council [2002] ECR II-03305, para. 144. Provided that this level of objectivity can be shown with regard to potential risk, however, it is not necessary to wait "until the reality and seriousness of those risks become fully apparent".
166. See Joined Cases T-74/00 etc., Artegodan [2002] ECR II-4945, para. 185,
167. and Pfizer, para. 139;
168. Case C-180/96 United Kingdom v Commission (the BSE judgment) [1998] ECR I-2265, para. 99;
169. Case T-199/96 Bergaderm and Goupil v Commission [1998] ECR II-2805, para. 66.
170. Appellate Body Report, EC - Hormones, as note 28 above, paras 188-189.
171. Articles 2.2 and 5.6 respectively.
172. Appellate Body Report, European Communities - Measures Affecting Asbestos and Asbestos - Containing Products (EC - Asbestos), WT/DS135/AB/ R, adopted 5 April 2001.
173. Panel Report, European Communities - Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/R, adopted 5 April 2001, as modified by the Appellate Body Report, WT/DS135/AB/R, para. 8.170.
174. Paras 158-163. This finding was dependent on the standard of review exercised by the Appellate Body over the Panel as a tribunal of fact; the Panel's findings would stand unless it had "exceeded the bounds of its discretion". See Appellate Body Report, EC Asbestos, as note 86 above, paras 159-162.
175. Appellate Body Report, EC - Asbestos, as note 86 above, para. 166.
176. Ibid., para. 167.
177. Ibid., para. 168. In this case, the comparison was between a "highly risky" product and a "less risky" product.
178. See Desmedt, as note 30 above, pp. 464-469.
179. Appellate Body Report EC - Asbestos, as note 86 above, paras 173-174. Another ground was that Canada had misunderstood previous case law on whether reasonably available was the equivalent of "not impossible" (para. 169).
180. Paras 170-171.
181. Appellate Body Report, Korea - Measures Affecting Imports of Fresh, Chilled and Frozen Beef (Korea - Various Measures on Beef), WT/DS161/AB/ R, WT/DS169/AB/R, adopted 10 January 2001, DSR 2001:1, 5, para. 164.
182. A requirement to negotiate an international agreement was introduced into the weighing and balancing analysis by the Panel in United States - Measures Affecting the Cross-Border Supply of Gambling and Betting Services (US - Gambling), WT/DS285/R, para. 6.562, but overturned by the Appellate Body.
183. See Appellate Body Report, US - Gambling, WT/DS285/AB/R, adopted 20 April 2005, paras 317-318.
184. Appellate Body Report, Dominican Republic - Measures Affecting the Importation and Internal Sale of Cigarettes (Dominican Republic - Import and Sale of Cigarettes), WT/DS302/AB/R, adopted 19 May 2005, paras 66-70.
185. See also Appellate Body Report, US - Gambling, as note 95 above, paras 304-308.
186. See note 80 above. The relationship between sufficiency of evidence and risk assessment was recognized by the Appellate Body when it stated: "The context of the word 'sufficient' or, more generally, the phrase 'maintained without sufficient scientific evidence' in Article 2.2, includes Article 5.1 as well as Articles 3.3 and 5.7 of the SPS Agreement".
187. See Appellate Body Report, Japan - Agricultural Products II, as note 62 above, para. 74.
188. See, e.g., Marceau and Trachtman, as note 30 above, pp. 826-828, 851-853;
189. Charnovitz, as note 24 above, pp. 467-469.
190. See Winickoff et al., as note 13 above, pp. 104-106, 118-121.
191. See also Desmedt, as note 30 above, pp. 456-458 (discussing SPS Article 5.6).
192. Appellate Body Report, Korea - Various Measures on Beef, as note 95 above, para. 162.
193. Id.
194. Appellate Body Report, Korea - Various Measures on Beef, as note 95 above.
195. See Desmedt, as note 30 above, pp. 469-470.
196. Panel Report, Canada - Measures Relating to Exports of Wheat and Treatment of Imported Grain (Canada - Wheat Exports and Grain Imports), WT/DS276/R, adopted 27 September 2004, as modified by the Appellate Body Report.
197. Para. 6.224.
198. Panel Peport, Dominican Republic - Measures Affecting the Importation and Internal Sale of Cigarettes (Dominican Republic - Import and Sale of Cigarettes), WT/DS302/R, adopted 19 May 2005, as modified by the Appellate Body Report, WT/DS302/AB/R, para. 7.215. The measure failed on the grounds that it was not effective in achieving the required objective, a finding that was not reviewed by the Appellate Body.
199. Appellate Body Report, EC - Asbestos, as note 86 above, para. 172.
200. General Agreement on Trade in Services, GATT Secretariat, The Results of the Uruguay Round of Multilateral Trade Negotiations, the Legal Texts (Geneva: GATT, 1994), footnote 5 to Article XIV, pp. 283, 294.
201. Panel Report, US - Gambling, as note 95 above, para. 6.492.
202. See, e.g., Charnovitz, as note 24 above, pp. 463-465 (discussing inwardly directed and outwardly directed preferences).
203. Appellate Body Report, United States - Import Prohibition of Certain Shrimp and Shrimp Products (US - Shrimp), WT/DS58/AB/R, adopted 6 November 1998, DSR 1998:VII, 2755.
204. GATT Panel Report, United States - Taxes on Automobiles, DS31/R, 11 October 1994 (unadopted).
205. Appellate Body Report, United States - Standards for Reformulated and Conventional Gasoline (US - Gasoline), WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:1, 3.
206. GATT Panel Report, United States - Restrictions on Imports of Tuna, DS29/ R, 20 May 1994, 33 I.L.M., p. 839 (unadopted);
207. GATT Panel Report, United States - Restrictions on Imports of Tuna, DS21/ R, 16 August 1991, 30 I.L.M., p. 1594 (unadopted).
208. Appellate Body Report, US - Shrimp, as note 111 above, para. 127.
209. Ibid., para. 128.
210. Ibid., para. 129.
211. Ibid., paras 129-130.
212. Thus the Appellate Body found assistance in such diverse instruments as the 1982 Law of the Sea Convention, Agenda 21, and a Resolution concluded with, but technically separate from, the Convention on the Conservation of Migratory Species of Wild Animals. There are many questions that may be raised about the use of these instruments. See, for example, Ilona Cheyne, Trade and the Environment: The Future of Extraterritorial Unilateral Measures After the Shrimp Appellate Body 5 Web Journal of Current Legal Issues (2000), at .
213. The Appellate Body also added that this view had support from previously adopted GATT 1947 panel reports (para. 131). The GATT Panel reports in question were United States - Prohibition of Imports of Tuna and Tuna Products from Canada, BISD 29S/91, para. 4.9,
214. and Canada - Measures Affecting Exports of Unprocessed Herring and Salmon, BISD 35S/98, para. 4.4. In both cases fishery stocks were considered to fall within the meaning of "exhaustible natural resources" for the purposes of Article XX(g).
215. Appellate Body Report, US - Shrimp, as note 111 above, para. 132.
216. Ibid., para. 141.
217. Panel Report, EC - Asbestos, as note 87 above, para. 8.170.
218. For a more detailed discussion of these issues, see John Alder and David Wilkinson, Environmental Law and Ethics (Basingstoke: Macmillan, 1999).
219. See Appellate Body Report, US - Gasoline, as note 113 above, pp. 21-22 (excluding effectiveness test for conservation measures).
220. In a deliberately open-ended response to one of the most difficult questions about the scope of Article XX defences, the Appellate Body stated, "We do not pass upon the question of whether there is an implied jurisdictional limitation in Article XX(g), and if so, the nature or extent of that limitation. We note only that in the specific circumstances of the case before us, there is a sufficient nexus between the migratory and endangered marine populations involved and the United States for purposes of Article XX(g)." Appellate Body Report, US - Shrimp, as note 111 above, para. 133.
221. See, e.g., the Convention on Biological Diversity, done at Rio de Janeiro, 5 June 1992, UNEP/Bio.Div./N7-INC5/4, 31 I.L.M., p. 818.
222. The geographical scope of the SPS is limited to the protection of life or health within the territory of the Member State. There is no textual restriction in Article XX(b), and the question was not directly addressed in Panel Report, European Communities - Conditions for the Granting of Tariff Preferences to Developing Countries, WT/DS246/R, adopted 20 April 2004, as modified by the Appellate Body, WT/DS246/AB/R.
223. Appellate Body Report, US - Gasoline, as note 113 above, p. 19, DSR 1996:1, pp. 3, 17.
224. Marceau and Trachtman, as note 30 above, p. 828;
225. Desmedt, as note 30 above, pp. 470-473.
226. See note 129 above.
227. Appellate Body Report, US - Shrimp, as note 111 above, paras 136, 141.
228. See, e.g., Glamis Gold Ltd v United States, Notice of Arbitration (9 December 2003), para. 15, available at (visited 28 November 2005). This case concerns a claim of expropriation under NAFTA Chapter 11. The facts include denial of approval of gold mining operations on the grounds that the project would be within a Native American "spiritual pathway" and that tribal members believed that the proposed mine would "impair the ability to travel, both physically and spiritually" along the "Trail of Dreams".
229. Appellate Body Report, US - Shrimp, as note 111 above, para. 160.
230. It noted the establishment of the Committee on Trade and Environment, the fact that the Ministerial Declaration at Marrakesh took note of the Rio Declaration on Environment and Development, and Agenda 21 (paras 154-155).
231. Paras 166-171. In addition, when the United States had engaged in multilateral negotiations it had done so only with some countries, thus showing unjustifiable discrimination (para. 173). The Appellate Body found that the lack of flexibility, transparency and predictability in the certification process constituted arbitrary discrimination (paras 177-181).
232. Appellate Body Report, US - Shrimp, as note 111 above, paras 171-172.
233. Panel Report, United States - Import Prohibition of Certain Shrimp and Shrimp Products: Recourse to Article 21.5 of the DSU by Malaysia, WT/ DS58/RW, adopted 21 November 2001 as modified by the Appellate Body Report, WT/DS58/AB/RW, para. 5.67.
234. Appellate Body Report, US - Shrimp, as note 111 above, para. 135. This echoes the concept of common interests and values used in the context of Article XX(d).
235. Appellate Body Report, United States - Import Prohibition of Certain Shrimp and Shrimp Products - Recourse to Article 21.5 of the DSU by Malaysia, WT/DS58/AB/RW, adopted 21 November 2001, para. 124.
236. See note 81 above.
237. See note 80 above.
238. See note 82 above.
239. Methanex Corp. v United States, Final Award (3 August 2005), at (visited 24 October 2005).
240. Note that in EC - Asbestos, Canada claimed that the French ban had resulted from "alarmist campaigns" and compared it to a similar US ban that it claimed was a response to "panicked" public opinion. See Panel Report, EC - Asbestos, as note 87 above, para. 3.10.
241. Methanex, Final Award, as note 144 above, Part IV, Chapter E, p. 9, para. 20.