Gateways to the precautionary principle in WTO law

Journal of Environmental Law

Volumn 19, Issue 2, 2007, Pages 155-172

  Cheyne, Ilona ^a  

^a NEWCASTLE UNIVERSITY   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ENVIRONMENTAL PROTECTION; TRADE AGREEMENT; TRADE-ENVIRONMENT RELATIONS; WORLD TRADE ORGANIZATION;

EID: 34447538303     PISSN: 09528873     EISSN: 1464374X     Source Type: Journal    
DOI: 10.1093/jel/eql036     Document Type: Article

References (131)

1. See e.g. S Boutillon, 'The Precautionary Principle: Development of an International Standard' (2002) 23 Michigan Journal of International Law 429;
2. D Abdel Motaal, 'Is the World Trade Organization Anti-Precaution?' (2005) 39 JWT 483;
3. LA Ruessmann, 'Putting the Precautionary Principle in its Place: Parameters in the Proper Application of a Precautionary Approach and the Implications for Developing Countries in the Light of the Doha WTO Ministerial' 17 American University International Law Review (2002) 905;
4. MC Cordonier Segger and MW Gehring, 'The WTO and Precaution: Sustainable Development Implications of the WTO Asbestos Dispute' (2003) 15 JEL 289.
5. See, e.g. SP Subedi, 'The Road From Doha: The Issues for the Development Round of the WTO and the Future of International Trade' (2003) 52 ICLQ 425.
6. For an analysis of the political implications of international judicial roles, see V Lowe, 'The Politics of Law-Making: Are the Method and Character of Norm Creation Changing?' in M Byers (ed), The Role of Law in International Politics (Oxford University Press, 2000) 216;
7. RH Steinberg, 'Judicial Lawmaking at the WTO: Discursive, Constitutional and Political Constraints' (2004) 98 AJIL 447.
8. For a law and economics analysis, see JP Trachman, 'The Domain of WTO Dispute Resolution' 40 Harvard International Law Journal (1999) 333.
9. This term has been used in slightly different ways in D French, 'Treaty Interpretation and the Incorporation of Extraneous Legal Rules' (2006) 55 ICLQ 281, at 292, 305.
10. See Also French, supra n 3, at 284;
11. J Pauwelyn, 'The Role of Public International Law in the WTO: How Far Can We Go?' (2001) 95 AJIL 535;
12. J Pauwelyn, 'How to Win a World Trade Organization Dispute Based on Non-World Trade Organization Law?' (2003) 37 JWT 997.
13. It is beyond the scope of this article to examine the debate about the fragmentation or coherence of international law and the particular question of the relationship between WTO law and general principles of international law. See e.g. L Bartels, 'Applicable Law in WTO Dispute Settlement Proceedings' (2001) 35 JWT 499;
14. A Lindroos and M Mehling, 'Dispelling the Chimera of 'Self Contained Regimes" International Law and the WTO' (2005) 16 EJIL 857;
15. J Pauwelyn, Conflict of Norms in Public International Law, How WTO Law Relates to Other Rules of International Law (Cambridge University Press, 2003).
16. UNTS 33;
17. (1969) 8 ILM 679.
18. The use of these rules of treaty interpretation is specifically required by Article 3.2 of the Understanding on Rules and Procedures Governing the Settlement of Disputes. GATT Secretariat, The Results of the Uruguay Round of Multilateral Trade Negotiations, the Legal Texts Geneva, 1994) 353, 360.
19. See, e.g. WTO Appellate Body Report, United States - Standards for Reformulated and Conventional Gasoline (US-Gasoline), WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, 3, at 17, http://docsonline.wto. org/ GEN_viewerwindow-asp?http://docsonline.wto-org:80/DDFDocuments/t/WT/DS/ 2ABR-WPF.
20. WTO Appellate Body Report, Japan - Taxes on Alcoholic Beverages, adopted 1 November 1996, WT/DS8/AB/R, WT/DS10/AB/R,WT/DS11/AB/R, at 10-12
21. WTO Appellate Body Report, India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, adopted 16 January 1998, WT/DS50/AB/R, paras 45-46;
22. WTO Appellate Body Report, Argentina - Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items, adopted 13 February 1998, WT/DS56/AB/R, para 47.
23. See, e.g. the Appellate Body's statement in WTO 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, para 114, http://docsonline.wto.org/ GEN_viewerwindow.asp?http://docsonline. wto.org:80/DDFDocuments/t/WT/DS/ 58ABR.doc. 'A treaty interpreter must begin with, and focus upon, the text of the particular provision to be interpreted. It is in the words constituting that provision, read in their context, that the object and purpose of the States' parties to the treaty must first be sought. Where the meaning imparted by the text itself is equivocal or inconclusive, or where confirmation of the correctness of the reading of the text itself is desired, light from the object and purpose of the treaty as a whole may usefully be sought.'
24. Namibia Advisory Opinion (1971) ICJ Reports 16, at 31;
25. Aegean Sea Continental Shelf Case (1978) ICJ Reports 3, at 32-3.
26. See also A Boyle, 'Further Development of the Law of the Sea Convention: Mechanisms for Change' 54 ICLQ (2005) 563, at 567-68.
27. See C McLachlan, 'The Principle of Systemic Integration and Art 31(3) (C) of the Vienna Convention' 54 ICLQ (2005) 279, at 302-04.
28. Ibid, at 280.
29. See Oil, Platforms Case (Islamic Republic of Iran v United States of America) (2003) ICJ Reports 1.
30. See in particular the separate opinions of Judges Higgins, Buergenthal, and Simma.
31. See also French. supra n 3. at 300-07;
32. McLachlan, supra n 9.
33. And see WTO Panel Report, European Communities - Measures Affecting the Approval and Marketing of Biotech Products (EC - Approval and Marketing of Biotech Products), WT/DS291/R, WT/DS292/R, WT/DS293/R, released 29 September 2006, not yet adopted, at paras 7.65-96, http://docsonline.wto.org/GEN_viewerwindow.asp?http:// docsonline.wto.org:80/DDFDocuments/t/WT/DS/293R-02.doc.
34. See P Birnie and A Boyle, International Law and the Environment (Oxford University Press, 2002, 2nd edn) at 118-21;
35. Boyle, supra n 8, at 572-74;
36. French, supra n 3, at 308-13.
37. And see V Lowe, 'Sustainable Development and Unsustainable Arguments' in A Boyle and D Freestone (eds) International Law and Sustaible Development (Oxford University Press, 1999) 19 (describing sustainable development as a meta-principle and an interstitial or modifying norm).
38. Gabčíkovo-Nagymaros Project Case (Hungary/Slovakia) (1997) ICJ Reports 7;
39. Article 9 OSPAR Case (PCA Final Award) (2003) 42 ILM 1118;
40. Aegean Sea Case, supra n 8, at 32;
41. Namibia Opinion, supra n 8, at 13.
42. And see Appellate Body Report. US-Shrimp, supra n 7 (discussed subsequently).
43. See, e.g. Boyle, supra n 8, at 567;
44. McLachlan, supra n 9;
45. French, supra n 3, at 285-86.
46. 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, 1994) 69.
47. Although the GATT was not significantly changed in the Uruguay Round negotiations, it is now referred to as GATT 1994 to differentiate it from the previous version which is now called GATT 1947. There are other provisions which might be relevant to the use of the precautionary principle and other environmental principles, e.g. in the Agreement on Technical Barriers to Trade, GATT Secretariat, The Results of the Uruguay Round of Multilateral Trade Negotiations, the Legal Texts (Geneva, 1994) 117.
48. Art 1-2.
49. Art 2. 2.
50. Art 2.3.
51. Art 3.2.
52. The full text reads: 'In cases where relevant scientific evidence is insufficient, a Member may provisionally adopt sanitary or phytosanitary measures on the basis of available pertinent information, including that from the relevant international organizations as well as from sanitary or phytosanitary measures applied by other Members. In such circumstances, Members shall seek to obtain the additional information necessary for a more objective assessment of risk and review the sanitary or phytosanitary measure accordingly within a reasonable period of time'.
53. WTO Appellate Body Report, European Communities - Measures Concerning Meat and Meat Products (EC - Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, DSR 1998:I, 135, at para 124, http://docsonline.wto.org/GEN_viewerwindow.asp? http://docsonline.wto.org:80/DDFDocuments/t/WT/DS/26ABR.WPF. This dispute arose because of an import ban imposed by the EC on the importation of meat and meat products from animals treated with growth-promoting hormones.
54. Paras 143-24. See infra, n 31.
55. See WTO Appellate Body Report, Japan - Measures Affecting the Importation of Apples, WT/DS245/AB/R, adopted 10 December 2003 at paras 179 183-84 http://docsonline.wto.org/GEN_viewerwindow.asp? http://docsonline.wto.org:80/DDFDocuments/t/WT/DS/245ABR.doc.
56. And see WTO Panel Report, EC - Approval and Marketing of Biotech Products, supra n 11, at paras 7.2984-93, esp. 7.2990.
57. All national measures are subject to other conditions, including the need not to constitute unjustifiable or arbitrary discrimination. See Article 2.2-3
58. See WTO Appellate Body Report, Japan - Measures Affecting Agricultural Products (Japan - Agricultural Products II), WT/DS76/AB/ R, adopted 19 March 1999, DSR 1999:1, 277, at para 93, http://docsonline.wto.org/GEN_viewerwindow.asp? http://docsonline.wto.org:80/DDFDocuments/t/WT/DS/76ABR.DOC.
59. Principle 15 of the Rio Declaration states, 'In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.' Adopted at the 1992 United Nations Conference for Environment and Development, UN Doc.A/CONF.151/5/Rev.1, 13 June 1992 (1992) 31 ILM 874.
60. See, e.g Art 3 (2) of the Convention on the Protection of the Marine Environment of the Baltic Sea Area, 1992: 'The Contracting Parties shall apply the precautionary principle, i.e. to take preventive measures when there is reason to assume that substances or energy introduced, directly or indirectly, into the marine environment may create hazards to human health, harm living resources and marine ecosystems, damage amenities or interfere with other legitimate uses....' (1992) 3 YIEL i.
61. See Articles 20 and 24 concerning the conduct of research.
62. In qualitative terms, it must be 'reliable'. See Appellate Body Report, Japan - Apples, supra n 24, at para 185.
63. The Appellate Body accepted that the drafting of Article 3.3 was 'evidently not a model of clarity' and that there was an argument for reading the two situations as separate as far as the requirement of a risk assessment was concerned. However, it preferred to incorporate the idea of risk assessment into the wording 'scientific justification' even if doing so would effectively ignore any intended distinction. Its main arqument appeared to be the need to maintain 'the delicate and carefully negotiated balance' struck in the SPS Agreement between the twin goals of trade liberalization and protection of human life and health. Appellate Body Report, EC - Hormones, supra n 22, 174-77
64. The EC based much of its argument on the claim that the precautionary principle was a principle of international customary law, whereas the United States and Canada argued that it was not. Neither the Panel nor the Appellate Body was prepared to pronounce on this question. See Appellate Body Report, at para 123: 'The status of the precautionary principle in international law continues to be the subject of debate among academics, law practitioners, regulators and judges. The precautionary principle is regarded by some as having crystallized into a general principle of customary international environmental law. Whether it has been widely accepted by Members as a principle of general or customary international law appears less than clear. We consider, however, that it is unnecessary, and probably imprudent, for the Appellate Body in this appeal to take a position on this important, but abstract, question. We note that the Panel itself did not make any definitive finding with regard to the status of the precautionary principle in international law and that the precautionary principle, at least outside the field of international environmental law, still awaits authoritative formulation.'(original footnotes removed)
65. This was followed by the Panel in WTO Panel Report, EC - Approval and Marketing of Biotech Products, supra n 11, at paras 7.86-89.
66. Ibid, at para 124. Presumably, the Appellate Body's reasoning would also apply to measures based on other environmental principles, such as sustainable development or the polluter-pays-principle.
67. Ibid, at para 121. The EC also considered that the use of the precautionary principle in this case satisfied the requirements of Article 2.2. namely that its measure was 'necessary to protect human, animal or plant life or health, is based on scientific principles and is not maintained without sufficient scientific evidence'.
68. Ibid.
69. Ibid.
70. Appellate Body Report, EC - Hormones, supra n 22, at para 189.
71. Ibid, at paras 187 and 208. Lack of specific risk assessment was the major reason that the EC failed in its argument under Article 3.3.
72. Ibid, at paras 184-86;
73. WTO Appellate Body Report, Australia - Measures Affecting Importation of Salmon (Australia - Salmon), WT/DS18/AB/R, adopted 6 November 1998, DSR 1998: VIII, 3327, at para 124, http://docsonline.wto.org/ GEN_viwerwindow.asp?http://docsonline.wto.org:80/DDFDocuments/t/WT/DS/ 18ABR.DOC.
74. Appellate Body Report, EC - Hormones, supra n 22, at para 194.
75. Ibid.
76. Art 5.5. In EC - Hormones, the Appellate Body pointed out that consistency in appropriate levels of protection was a goal for the future, but there was no legal obligation in this respect. Ibid, at para 213.
77. Art 2.3.
78. Appellate Body Report, Australia-Salmon, supra n 38, at para 89: 'The determination of the appropriate level of protection, a notion defined in paragraph 5 of Annex A, as "the level of protection deemed appropriate by the Member establishing a sanitary... measure," is a prerogative of the Member concerned and not of a panel or of the Appellate Body'.
79. "Once the conditions of any of the paragraphs are satisfied, the measure must meet additional conditions in the chapeau which are discussed subsequently.
80. See, e.g. United States - Restrictions on the Import of Tuna (Tuna Dolphin II) DS29/R (1994) 33 ILM 839, http://www.law.georgetown.edu/ iiel/cases/US-Tuna.pdf not adopted. The Panel took the view that no measures could be permitted under Article XX if they could only achieve their aim indirectly. The trade restrictions involved were import bans on tuna caught without using dolphin-protective techniques and, since the effect of promoting dolphin safety would only occur if the affected countries changed their fishing policies, the Panel found that the import bans were indirect and coercive. As such, they could not be 'necessary'.
81. WTO Applellte Body Report, European Communities - Measures Affecting Asbestos and Asbestos-Containing Products (EC - Asbestos), WT/DS135/ AB/R, adopted 5 April 2001 http://docsonline.wto.org/ GEN_viewerwindow.asp?http://docsonline.wto.org:80/DDFDocuments/t/WT/DS/ 135ABR.doc. Canada brought a complaint on the grounds, inter alia, that the French measure violated Article III:4 by discriminating between like products (discussed subsequently). The Panel found that the French measure had violated Article III:4 but was excused by virtue of Article XX(b); although the Appellate Body did not find a violation under Article III:4 it carried out a detailed analysis of the application of Article XX(b).
82. WTO 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, at oaras 8.170 and 8.184.
83. Appellate Body Report, EC - Asbestos, supra n 46, at para 84.
84. Ibid, at para 85.
85. Ibid, at paras 86-91.
86. This reasoning may also apply to measures based on other environmental principles, e.g., sustainable development, though the facts in EC - Asbestos only extend to direct and serious threats to human health.
87. See Tuna Dolphin II, supra n 45.
88. Appellate Body Report, US-Gasoline, supra n 6, at 15.
89. Appellate Body Report, US-Shrimp, supra n 7, at paras 127-128. The finding may have been easier to make in this case because the turtles being protected by the US import ban were recognized by all the parties as being endangered.
90. Ibid, at paras 129-31. This approach is not without its critics.
91. See, e.g. JP Kelly, 'The Seduction of the Appellate Body: Shrimp/Sea Turtle I and II and the Proper Role of States in WTO Governance' (2005) 38 Cornell Int'l LJ 459.
92. In this case, e.g., the Appellate Body referred to the 1982 United Nations Law of the Sea Convention, http://www.un.org/Depts/los/ convenfion_agreements/convention_overview_convenuon.htm.
93. UN Doc. A/CONF.62/122, (1982) 21 ILM 1261, and the 1992 Convention on Biological Diversity, http://www. biodiv.org/convention/ convention.shtml. UNEP/Bio.Div./N7-INC5/4, (1992) 31 ILM 818.
94. An attempt by the EC to introduce the Convention on Biological Diversity and the Cartagena Protocol on Biosafety was rejected in the Biotech Products case because not all the Members in the dispute were parties. However, the Panel accepted that the agreements might shed light on the meaning and scope of relevant WTO provisions. See WTO Panel Report, EC - Approval and Marketing of Biotech Products, supra n 11, at paras 7.68-75, 94.
95. This would also be true for other environmental principles implemented through State practice.
96. This would also be the case in Tuna-Dolphin II, supra n 45, where the Panel accepted that protecting dolphins in the Eastern Tropical Ocean was a legitimate policy even though they were not endangered.
97. Appellate Body Report, US-Shrimp, supra n 7, at para 133.
98. For the view that unilateral measures designed to promote conservation by pressurizing other Member States to change their fishing practices were indirect and coercive and should therefore not be classified as 'relating to', see Tuna Dolphin II, supra n 45.
99. Appellate Body Report, US-Gasoline, supra n 6, at 19.
100. Appellate Body Report, US-Shrimp, supra n 7, at para 136.
101. In the case of US-Shrimp, the Appellate Body accepted that the US measure was designed to influence other States to change their environmental policies, but since it was specifically aimed at its stated objective and allowed the importation of shrimp under reasonable circumstances, it satisfied the proportionality test. Ibid, at paras 138-141.
102. See Boyle, supra n 8, at 568;
103. French, supra n 3, at 297-99;
104. McLachlan, supra n 9, at 302-03.
105. Appellate Body Report, US-Gasoline, supra n 6, at 20;
106. Appellate Body Report, US-Shrimp, supra n 7, at para 116.
107. The other conditions to be satisfied are the tests of arbitrary discrimination and disguised restriction on trade.
108. Appellate Body Report, US-Gasoline, supra n 4 at 23;
109. Appellate Body Report, US-Shrimp, supra n 7, at paras 150, 155.
110. Appellate Body Report, US-Shrimp, supra n 7, at paras 154, 168.
111. Ibid, at paras 152-53.
112. In fact, the US measure was found to be unjustifiably discriminatory because, inter alia, it required other countries to adopt exactly the same methods for conserving turtles rather than allowing them to use equivalent alternative methods. Ibid, at paras 163-65.
113. Ibid, at para 166.
114. The obligation to seek multilateral consensus continues indefinitely even after a unilateral measure has been applied. See 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, http://docsonline.wto.org/GEN_viewerwindow.asp? http://docsonline.wto.org:80/DDFDocuments/t/WT/DS/58RW.doc. adopted 21 Noventber 2001 as modified by the Appellate Body Report, WT/DS58/AB/RW, at para 5.67.
115. Appellate Body Report, EC - Asbestos, supra n 46.
116. Ibid, at para 18.
117. Ibid, at para 99.
118. Ibid, at para 109.
119. Ibid, at para 102.
120. This would also apply, mutatis mutandis, to the use of other environmental principles.
121. It is worth noting that Canada failed in its argument because the Appellate Body found that it had not shifted its burden of proof. Ibid, at paras 141, 148. Keeping the burden of proof on the party which claims that there is no danger rather than imposing it on the party asking for action to be taken is compatible with the working of the precautionary principle.
122. However, one member of the Panel considered that the evidence was strong enough to make a finding that the products were not like, and that it was not necessary to rely on the failure to discharge the burden of proof. Ibid, at paras 152-53.
123. See, e.g. J Bohanes, 'Risk Regulation in WTO Law: A Procedure-based Approach to the Precautionary Principle' (2002) 40 Colum J Transnat'L L 323, at 359-62;
124. HF Chang, 'Risk Regulation, Endogenous Public Concerns, and the Hormones Dispute: Nothing to Fear but Fear itself?' (2004) 77 Southern Califonia Law Review 743;
125. C Hilson, 'Information Disclosure and the Regulation of Traded Product Risks' (2005) 17 JEL 305;
126. C Hilson, 'Planning Law and Public Perceptions of Risk: Evidence of Concern or Concern Based on Evidence' (2004) JPL 1638;
127. N Stanley, 'Public Concern: The Decision-Makers' Dilemma' (1998) JPL 919.
128. For a more detailed discussion of this aspect, see I Cheyne, 'Risk and Precaution in World Trade Organization Law' (2006) 40 JWT 837.
129. See supra nn 43 and 49.
130. Appellate Body Report, US-Shrimp, supra n 7, at para 48.
131. See Lowe, supra n 12.