The WTO'S environmental progress

Journal of International Economic Law

Volumn 10, Issue 3, 2007, Pages 685-706

  Charnovitz, Steve ^a  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

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EID: 34548388475     PISSN: 13693034     EISSN: 14643758     Source Type: Journal    
DOI: 10.1093/jiel/jgm027     Document Type: Article

References (136)

1. Convention for the Abolition of Import and Export Prohibitions and Restrictions, 8 November 1927, 97 League of Nation Treaty Series 391, Article 4, Ad Article 4, not in force.
2. Havana Charter for an International Trade Organization (ITO Charter), 24 March 1948, http://www.wto.org/english/docs_e/legal_e/prewto_legal_e.htm (visited 10 June 2007), Article 45(1)(a)(x), not in force. The three additional conditions for such an international agreement are: (i) that it is not used to accomplish results inconsistent with the ITO Chapter on Intergovernmental Commodity Control Agreements, (ii) that it is not used to accomplish results inconsistent with the purposes of the ITO Charter, and (iii) that the agreement is given 'full publicity'. Ibid, Articles 60(1)(e), 70(1)(d). Note that GATT Article XXIX:1 calls on parties to 'undertake to observe to the fullest extent of their executive authority the general principles... of the Havana Charter...'
3. GATT Secretariat, International Trade 90-91, Vol. 1, 1992, 19-43 at 23.
4. John H. Jackson, 'Global Economics and International Economic Law', 1 Journal of International Economic Law 1 (1998), at 3.
5. For example, Daniel C. Esty, 'An Environmental Perspective on Seattle', 3 Journal of International Economic Law (2000) 176;
6. David Vogel, 'Environmental Regulation and Economic Integration", 3 Journal of International Economic Law (2000) 265;
7. Barbara Eggers and Ruth Mackenzie, 'The Cartagena Protocol on Biosafety', 3 Journal of International Economic Law (2000) 525;
8. Andrew Green, 'Climate Change, Regulatory Policy and the WTO: How Constraining Are Trade Rules?', 8 Journal of International Economic Law (2005) 143;
9. Andrew Green and Tracey Epps, 'The WTO, Science and the Environment', 10 Journal of International Economic Law (2007) 285.
10. For example, Kevin P. Gallagher, 'Review of Gary P. Sampson, The WTO and Sustainable Development', 9 Journal of International Economic Law (2006) 511.
11. This was the title of the leading scholarly analysis: Daniel C. Esty, Greening the GATT: Trade, Environment, and the Future (Washington: Institute for International Economics, 1994).
12. An even earlier volume was Kym Anderson and Richard Blackhurst (eds), The Greening of World Trade Issues (Hertfordshire: Harvester Wheatsheaf, 1992).
13. Among those actors: the European Free Trade Association (EFTA) countries, the Talloires Group, the Global Environment & Trade Study, the Foundation for International Environmental Law and Development (FIELD), and World Wildlife Fund (WWF).
14. See John H. Jackson, 'Justice Feliciano and the WTO Environmental Cases: Laying the Foundations of a "Constitutional Jurisprudence" with Implications for Developing Countries', in Steve Charnovitz, Debra P. Steger and Peter van den Bossche (eds), Law in the Service of Human Dignity. Essays in Honour of Florentino Feliciano (Cambridge: Cambridge University Press, 2005) 29-43 at 40.
15. WTO Appellate Body Report, United States - Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, adopted 6 November 1998, paras 152-53.
16. Appellate Body Report, US - Shrimp, above n 10, para 185.
17. 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, para 5.54, adopted 21 November 2001, as upheld by Appellate Body Report, WT/DS58/AB/RW. In my view, a WTO commitment to sustainable development is a hollow victory for environmentalists because that term has been stretched in a way so as to make it acceptable to all and meaningful for no one. For a good discussion of 'sustainable development' today, see David G. Victor, 'Recovering Sustainable Development', Foreign Affairs 85 (2006), 91.
18. For this analysis, I have adopted the TREM acronym invented in the early 1990s by Paul Demaret. As used here, a TREM is an environmental measure that affects trade (e.g. a tax).
19. Agreement on Agriculture, Article 6.1, Annex II paras 2(a), 8(a), 12.
20. SPS Agreement, Articles 5.2, 6.2.
21. TBT Agreement, Article 2.2
22. TRIPS Agreement, Article 27.2.
23. SCM Agreement, Article 8.2(c).
24. For example, Article 66.2 of the TRIPS Agreement directs developed country WTO Members to 'provide incentives to enterprises and institutions in their territories for the purpose of promoting technology transfer to least-developed country Members'.
25. GATS Article XIV(b).
26. See Uruguay Round Decision on Trade in Services and the Environment.
27. TBT Agreement, Articles 2.1, 2.2.
28. GATS Annex on Financial Services, para 4; DSU Article 1.2 and Appendix 2.
29. TBT Agreement, Article 2.4.
30. WTO Appellate Body Report, European Communities - Trade Description of Sardines, WT/DS231/AB/R, adopted 23 October 2002, paras 221-22. The term 'international standard' is not defined in TBT. The Appellate Body rejected the EC's contention that Article 2.4 of the TBT Agreement does not apply to non-consensus standards. The Appellate Body's explanation is illogical, in my view, because it seems based on the proposition that a 'standard' in the TBT Agreement can be a non-consensus document. That is obviously correct, but begs the question of what an international standard is. The Appellate Body's conclusion has rendered inutile the sentence in the TBT definitions that 'Standards prepared by the international standardization community are based on consensus'.
31. Note, however, that the TBT Agreement proclaims that 'developing country Members should not be expected to use international standards as a basis for their technical regulations or standards... which are not appropriate to their development, financial and trade needs'. TBT Agreement, Article 12.4.
32. One measure of its meagre output can be seen in the Annual Report of the CTE. In 2006, 2005, 2004, and 2003, the Report for each year ran less than two full pages. The 2002 Report ran three pages. Perhaps the best analysis of the CTE is Gregory C. Shaffer, 'The Nexus of Law and Politics: The WTO's Committee on Trade and Environment', in Richard H. Steinberg (ed.), The Greening of Trade Law (Lanham: Rowman and Littlefield Publishers, 2002) 81-114.
33. The WTO Secretariat describes environment as a 'horizontal' issue. WTO Secretariat, "Trade and Environment', http://www.wto.org/english/tratop_e/ envir_e/envir_e.htm (visited 6 June 2007).
34. The CTE has not granted observer status to many international environmental organizations, for example, the Montreal Protocol Secretariat, the International Labour Organization, and the IUCN which is a hybrid international organization.
35. Steve Charnovitz, 'World Trade and the Environment: A Review of the New WTO Report', 12 Georgetown International Environmental Law Review (2000) 523.
36. For example, the Secretariat opines: Under existing GATT rules and jurisprudence, 'product' taxes and charges can be adjusted at the border, but 'process' taxes and charges by and large cannot. For example, a domestic tax on fuel can be applied perfectly legitimately to imported fuel, but a tax on the energy consumed in producing a ton of steel cannot be applied to imported steel. WTO Secretariat, "Trade and Environment at the WTO', April 2004, at 21. In my view, no legal authority exists for this proposition, and the Secretariat certainly offers no analysis of GATT Articles II, III, or XX that would justify its conclusion.
37. WTO, 'Trade Policy Review Nigeria', Report by the Secretariat, WT/TPR/S/xx147, 13 April 2005, at 55, 59, 80.
38. Ibid, at 66.
39. For example, see John H. Jackson, 'World Trade Rules and Environmental Policies: Congruence or Conflict?', 49 Washington and Lee Law Review (1992) 1227, at 1255 ('Nevertheless, the environmentalists... have several legitimate complaints about GATT dispute settlement procedures, among others. First, they note appropriately that the GATT lacks a certain amount of transparency.')
40. See 'WTO Opens "Hormones" Panel Proceedings to Public', WTO News, 27 September 2006.
41. 'Lamy Urges Support for Environmental Chapter of the Doha Round', WTO News, 5 February 2007.
42. For example, see Roman Grynberg, 'WTO Fisheries Subsidies Negotiations: Implications for ACP Fisheries Access Arrangements and Sustainable Management', in Roman Grynberg (ed.), WTO at the Margins (Cambridge: Cambridge University Press, 2006) 607-32.
43. These environmental objectives are reiterated in the Hong Kong Ministerial Declaration, WT/MIN(05)DEC, 22 December 2005, paras 30-2.
44. See 'CTE Update', Bridges, May 2007, 8.
45. Free Trade Agreement between the Government of the People's Republic of China and the Government of the Republic of Chile, 18 November 2005, Article 108, http://www.sice.oas.org/tradee.asp#CHL_CHN (visited 6 June 2007).
46. Agreement between Japan and the United Mexican States for the Strengthening of the Economic Partnership, 17 September 2004, Article 147, http://www.sice.oas.org/Trade/JPN_MEXDraftEPA_e/JPN_MEXind_e.asp (visited 6 June 2007).
47. Sarah Lueck, John D. McKinnon and Greg Hitt, 'Bush, Congress Agree On Trade Standards', Wall Street Journal, 11 May 2007, A2.
48. See 'Mini-Symposium on the Consultative Board's Report on the Future of the WTO', 8 Journal of International Economic Law (2005) 287.
49. "The Future of the WTO, Addressing Institutional Challenges in the New Millennium,' Report by the Consultative Board to the Director-General Supachai Panitchpakdi, January 2005, para 87, http://www.wto.org/english/ thewto_e/10anniv_e/future_wto_e.pdf (visited 6 June 2007).
50. Ibid, para 87.
51. Ibid, para 33.
52. In addition, there have been five disputes involving the SPS Agreement. Any SPS case is concerned with threats to human, animal or plant life, and health. If the SPS cases are counted as environmental cases, then the environmental case load is considerably higher and The win/loss ratio much lower. In all five of the SPS cases, the challenged measure was found to be a violation. Two of those five cases had a DSU Article 21.5 panel that found continuing violations. For reasons of space, this article will not discuss the SPS cases comprehensively, but will offer comments on aspects of them.
53. Daniel Pruzin, 'WTO Panel Backs EU in Ruling Against Brazil's Import Ban on Retreaded Tires', BNA Daily Report for Executives, 13 June 2007, A-1. The panel ruled against Brazil's claim for an Article XX(b) exception.
54. See Carrie Wofford, 'A Greener Future at the WTO: The Refinement of WTO Jurisprudence on Environmental Exceptions to GATT', 24 Harvard Environmental Law Review (2000) 563;
55. Robert Howse, 'The Appellate Body Rulings in the Shrimp/Turtle Case: A New Legal Baseline for the Trade and Environment Debate', 27 Columbia Journal of Environmental Law (2002) 491.
56. See, e.g. GATT Panel Report, US - Restrictions on Imports of Tuna, 39S/155, 1991, unadopted, paras 5.25, 5.27, 5.32;
57. GATT Panel Report, US - Restrictions on Imports of Tuna, DS29/R, 1994, unadopted, paras 5.26 ('Under such an interpretation the General Agreement could no longer serve as a multilateral framework for trade among contracting parties'), 5.38;
58. Panel Report, US - Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/R, adopted 6 November 1998 as modified by the Appellate Body Report, paras 7.44 (holding that Article XX allows governments to derogate from GATT provisions so long as 'they do not undermine the WTO multilateral trading system'), 7.60, 7.61. Perhaps in its most brazen misleading statement, the Shrimp panel claims to be basing its holding not only on WTO rules, but also on 'international law', and in that regard, the panel refers to general international law and international environmental law.
59. Ibid, para 7.61.
60. See Steve Charnovitz, 'GATT and the Environment: Examining the Issues', 4 International Environmental Affairs (1992) 203, at 211 (pointing out that 'increasingly stringent tests are being created by panels on an ad hoc basis').
61. See, e.g. Appellate Body Report, US - Shrimp, above n 10, para 121 (criticizing the panel for an interpretation that would render Article XX exception 'inutile').
62. The Presiding Member of the Appellate Body division in each of these three cases was Florentino Feliciano, a point well appreciated by Professor Jackson in his contribution to the Feliciano Festschrift, above n 9.
63. See WTO Appellate Body Report, European Communities - Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R, adopted 5 April 2001, para 115.
64. See WTO Appellate Body Report, United States - Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, adopted 20 May 1996, at 18.
65. The Appellate Body noted that Article XX contains provisions to permit important state interests 'to find expression'. Appellate Body Report, US - Gasoline, above n 55, at 29-30.
66. See Appellate Body Report, EC - Asbestos, above n 54, paras 157, 162.
67. Appellate Body Report, US - Gasoline, above n 55, at 18.
68. See Charnovitz (1992), above n 51, at 218 (noting that the Article XX chapeau had atrophied from inattention and calling on panels to use the Article XX chapeau in environmental cases);
69. Donald M. McRae, 'GATT Article XX and the WTO Appellate Body', in Marco Bronckers and Reinhard Quick (eds), New Directions in International Economic Law. Essays in Honour of John H. Jackson (The Hague: Kluwer Law International, 2000) 228-36, at 227 (noting that GATT panels 'had paid little attention to the chapeau' and that under the WTO, 'new life has been breathed into the chapeau").
70. See WTO Appellate Body Report, United States - Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/AB/R, adopted 20 April 2005, para 304.
71. Appellate Body Report, US - Gambling, ibid, paras 291-92, 305. Given this symmetry, this study will draw on Gambling because it provides the most elaborate exposition by the Appellate Body of the General Exceptions.
72. WTO Appellate Body Report, above n 54, para 168. Relatedly, see WTO Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB, R, adopted 13 February 1998, para 177 (taking cognizance of a right and 'duty' of WTO Members to protect the life and health of their people).
73. For example, see Robert Howse and Elisabeth Turk, "The WTO Impact on Internal Regulations', in George A. Bermann and Petros C. Mavroidis (eds), Trade and Human Health and Safety (Cambridge: Cambridge University Press, 2006) 77-117 at 113.
74. When a measure is indispensable to achieve the Article XX(b) goal, then presumably that measure is deemed necessary. See Howse and Turk, ibid, at 114-15. Yet, in their most recent judgment on Article XX(d), in Mexico - Taxes on Soft Drinks, the Appellate Body said nothing about a special category of indispensable measures. WTO Appellate Body Report, Mexico Tax Measures on Soft Drinks and Other Beverages, WT/DS308/AB/R, adopted 24 March 2006, paras 66, 80.
75. WTO Appellate Body Report, Korea - Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/AB/R, WT/DS169/AB/R, adopted 10 January 2001, para 164.
76. This test was applied to Article XX(b) in Appellate Body Report, EC - Asbestos, para 172.
77. The importation of the Article XX(d) test to Article XX(b) has been criticized by some scholars. For example, see Anupam Goyal, The WTO and International Environmental Law (Oxford: Oxford University Press, 2006) 139-140.
78. Appellate Body Report, US - Gambling, above n 60, para 306.
79. Appellate Body Report, US - Gambling, ibid, paras 309, 310, 323. No case has yet occurred where a measure itself has been judged on its own to fail this balancing test. One reading of the jurisprudence is that the Appellate Body's term 'weighing and balancing' is a misnomer, and what is going on instead is that the measure in place is only weighed against a reasonable alternative measure. This is the interpretation put forward by Don Regan, as I understand it, and he may well be correct that the Appellate Body has not called for weighing adverse trade effects against other values. In other words, in a hypothetical case, the Appellate Body would not demand that an existing measure with 80% effectiveness and significant trade impact be replaced by a reasonable alternative measure with 70% effectiveness and no trade impact.
80. See Michael Trebilcock and Michael Fishbein, 'International Trade: Barriers to Trade', in Andrew T. Guzman and Alan O. Sykes (eds), Research Handbook in International Economic Law (Cheltenham: Edward Elgar, 2007) 1-61 at 45 (making a similar point).
81. Appellate Body Report, US - Gambling, above n 60, paras 309, 310, 320.
82. The alternative measure has to enable to defendant government to achieve its desired level of protection with respect to the objective pursued. Appellate Body Report, US - Gambling, ibid, para 308.
83. Appellate Body Report, US - Gambling, ibid, para 311.
84. Appellate Body Report, EC - Asbestos, above n 54, para 172. An alternative measure is not reasonably available if it is merely theoretical in nature, imposes an undue burden on the regulating government, or the regulating government is not capable of taking it.
85. Appellate Body Report, US - Gambling, above n 60, para 311.
86. See Appellate Body Report, EC - Asbestos, above n 54, para 172 (last sentence). The Appellate Body's consideration of a trade restrictiveness factor in connection to a health measure was noteworthy because (despite fifteen years of scholarly commentary to the contrary) this was the first GATT/WTO holding for Article XX(b) to do so.
87. See GATT Panel Report, Thailand - Restrictions on Importation of Internal Taxes on Cigarettes, 37S/200, para 75 (no mention of a less trade restrictive test).
88. The Thai Cigarette panel explained that Article XX(b) would 'allow contracting parties to impose trade restrictive measures inconsistent with the General Agreement to pursue overriding public policy goals to the extent that such inconsistencies were unavoidable'. Ibid, para 74.
89. The panel further noted that Article XX(b) 'clearly allowed contracting parties to give priority to health over trade liberalization'. Ibid, para 73.
90. In my view, it was unfortunate that the Appellate abandoned these principles and replaced Them with a balancing test in which trade can trump health. The Appellate Body does not explain why it did so, but the reason is probably that a trade-restrictiveness test had been incorporated into the SPS Agreement (Article 5.6) and the TBT Agreement (Articles 2.2, 2.3), and it is inevitable (and probably intended by trade negotiators) that such norms would eventually be imported in GATT Article XX. For example, in the first SPS case, the Appellate Body had declared that there is a 'delicate and carefully negotiated balance in the SPS Agreement between the shared, but sometimes competing, interests of promoting international trade and of protecting the life and health of human beings'. Appellate Body Report, EC - Hormones, above n 56, para 177.
91. Appellate Body Report, EC -Asbestos, above n 54, para 178.
92. Appellate Body Report, EC - Hormones, above n 62, para 124.
93. See William J. Davey, 'Reflections on the Appellate Body Decision in the Hormones Case and the Meaning of the SPS Agreement', in George A. Bermann and Petros C. Mavroidis (eds), Trade and Human Health and Safety (Cambridge: Cambridge University Press, 2006) 118-132 at 122-23 (discussing the precautionary principle).
94. Appellate Body Report, US - Shrimp, above n 10, para 131.
95. Ibid, paras 129-30 (internal footnote omitted).
96. Ibid.
97. Ibid, para 131 (internal footnote omitted). The footnote states that the 'drafting history does not demonstrate an intent on the part of the framers of the GATT 1947 to exclude "living" natural resources from the scope of application of Article XX(g)'.
98. See para 131, n 114. My own research many years ago of the negotiating history led me to include that the conservation of living resources was not the central purpose of the Article XX(g) exception, but that the drafters had agreed, in a different context, that fisheries and wildlife could be exhaustible natural resources. See Steve Charnovitz, 'Exploring the Environmental Exceptions in GATT Article XX', 25 Journal of World Trade (October 1991) 37, at 45-17.
99. Appellate Body Report, US - Shrimp, above n 10, para 133.
100. GATT Panel Report, US - Tuna, 1991 (unadopted), above n 50, paras 5.26, 5.27, 5.32.
101. See Appellate Body Report, US - Gasoline, above n 55, at footnotes 37 and 38;
102. Aaditya Mattoo and Petros C. Mavroidis, 'Trade, Environment and the WTO: The Dispute Settlement Practice Relating to Article XX of the GATT', in Ernst-Ulrich Petersmann (ed.), International Trade Law and the GATT/WTO Dispute Settlement System (London: Kluwer Law International, 1997) 327-43 at 327-32 (criticizing the GATT report in the first tuna-dolphin case).
103. See Appellate Body Report, US - Hormones, above n 62, para 165 and n 154 (explicating the principle).
104. Appellate Body Report, US - Gasoline, above n 55, at 18-19.
105. Appellate Body Report, US - Shrimp, above n 10, paras 136-37.
106. Ibid, para 141.
107. Appellate Body Report, US - Gasoline, above n 55, at 20-21;
108. Appellate Body Report, US Shrimp, above n 10, para 144.
109. Appellate Body Report, US - Gasoline, above n 55, at 21.
110. Robert Howse and Damien J. Neven, 'US - Shrimp. United States - Import Prohibition of Certain Shrimp and Shrimp Products: Recourse to Article 21.5 of the DSU by Malaysia', in Henrik Horn and Petros C. Mavroidis (eds), The WTO Case Law of 2001 (Cambridge: Cambridge University Press, 2003) 41-71 at 66.
111. Appellate Body Report, US - Gasoline, above n 55, at 22.
112. Appellate Body Report, US - Shrimp, above n 10, para 120;
113. But see para 146 regarding the necessity of considering XX(b).
114. Appellate Body Report, US - Gasoline, above n 55, at 22-23.
115. Appellate Body Report, US - Shrimp, above n 10, paras 152-55.
116. Ibid, para 158 (internal footnote omitted that cites to Article 31(c)(3) of the Vienna Convention on the Law of Treaties).
117. Appellate Body Report, US - Shrimp, above n 10, para 158 (internal footnote omitted that cites to two treatises and three cases of the International Court of Justice);
118. see also Appellate Body Report, US -Gasoline, above n 55, at 22 ('reasonably').
119. Appellate Body Report, US - Gasoline, above n 55, at 22.
120. Appellate Body Report, US - Shrimp, above n 10, para 156. The point is repeated in para 159.
121. Ibid, paras 181 ('negation of rights of Members'), 182 ('suspension pro hoc vice of the treaty rights of other Members'), 186 ('rights of other Members'), 163 ('a right to export shrimp'). At least in its early years, the Appellare Body seemed to have a statist perception of international trade as being 'trade between territorial sovereigns'. Appellate Body Report, US - Gasoline, above n 55, at 27.
122. Appellate Body Report, US - Gasoline, above n 55, at 27-28. In a broader Article XX context in a later case, the Appellate Body criticized the regulating government for shifting the costs of enforcement to imported goods instead of evenly distributing such costs between domestic and imported products.
123. Appellate Body Report, Korea - Beef, above n 65, para 181.
124. Appellate Body Report, US - Shrimp, above n 10, paras 163-64, 177. Such a situation can also be unjustifiable discrimination.
125. Ibid, paras 165, 176.
126. Appellate Body Report, US - Shrimp (Article 21.5 - Malaysia), above n 12, paras 144, 149.
127. Appellate Body Report, US - Shrimp, above n 10, paras 173-74.
128. Ibid, paras 167, 171, 172.
129. See also Appellate Body Report, US - Shrimp (Article 21.5 Malaysia), above n 12, para 124 (explaining that the United States is not required to conclude an international agreement).
130. See Joost Pauwelyn, 'Non-Traditional Patterns of Global Regulation: Is the WTO "Missing the Boat"?', in Christian Joerges and Ernst-Ulrich Petersmann (eds), Constitutionalism, Multilevel Trade Governance and Social Regulation (Portland: Hart Publishing, 2006) 199-227 at 215
131. (noting that the Appellate Body's reference to treaties raises questions of legitimacy and state consent). In EC -Approval and Marketing of Biotech Products, the panel stated that following Article 31(c)(3) of the Vienna Convention on the Law of Treaties did not require the panel to consider as a rule of international law, treaties that are not applicable between all the parties to the dispute.
132. Panel Report, European Communities - Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R, WT/DS292/R, WT/DS293/R, adopted 21 November 2006, paras 7.70-7.95. The panel used that holding to justify not making use of the Convention on Biological Diversity and its Biosafety Protocol. This holding has implications for the longtime debate on MEAs as to what would happen if a defendant government cited an MEA for justification that had not been ratified by the complaining government.
133. See Appellate Body Report, US - Shrimp, above n 10, para 175.
134. Ibid, para 171.
135. Ibid, para 185.
136. The Appellate Body has also suggested that the good faith notion applies to all Members, not just a plaintiff. Appellate Body Report, US - Shrimp (Article 21.5 Malaysia), above n 12, para 134, n 97.