The WTO, Animals and PPMs 1571051864, 9781571051868

Table of contents :
Contents
Foreword
Acknowledgments
About the Author
List of Abbreviations
1 Introductory Remarks
2 Public International Law
3 Sustainable Development
4 The Environment—Biodiversity
5 Animal Welfare
6 Environmental and Other Policies in the WTO
7 GATT, SPS and TBT
8 The Policy Area of GATT Article XX
9 A New Analytical Framework
10 Conclusion
Bibliography
Index

Citation preview

SERIES ON INTERNATIONAL LAW AND DEVELOPMENT

Editorial Board Series Editor Raj Bhala Rice Distinguished Professor The University of Kansas School of Law Lawrence, KS • USA

Professor Scott Optican Faculty of Law University of Auckland Auckland, New Zealand Muhammad Nawazish Pirzada Associate Professor of Law Pakistan College of Law Partner, Pirzada Law Partners Lahore, Pakistan Ramsay Taylor Attorney Baker & Botts Riyadh, Saudi Arabia Professor Peter Muchlinski Kent Law School University of Kent at Canterbury England

The WTO, Animals and PPMs

LAURA NIELSEN

Martinus Nijhoff Publishers Leiden / Boston

Library of Congress Cataloging-in-Publication Data Nielsen, Laura, LLM, PhD The WTO, Animals and PPMs / Laura Nielsen. p. cm. -- (Series on international law and development) Revised version of the author's thesis (Ph. D.) -- University of Copenhagen, 2005. Includes bibliographical references and index. ISBN 978-1-57105-186-8 1. Animal welfare—Law and legislation. 2. Foreign trade regulation. 3. World Trade Organization. I. Title. K3620.N54 2007 344.04'9--dc22 2007027881

Copyright © 2007 Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishers, IDC Publishers, Martinus Nijhoff Publishers, and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to the Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA.Fees are subject to change. Manufactured in the United States of America

CONTENTS Foreword. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xvii About the Author. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xix List of Abbreviations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xxi Chapter 1: Introductory Remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.1 What to Expect from this Book. . . . . . . . . . . . . . . . . . . . . . . . 1 1.2 Where Do We Start? Globalization . . . . . . . . . . . . . . . . . . . . . 2 1.3 Direction: Sustainable Development . . . . . . . . . . . . . . . . . . . 3 1.4 Working Together, Separately? . . . . . . . . . . . . . . . . . . . . . . . . 4 1.5 Narrowing the Focus: WTO, Animals and PPMs . . . . . . . . . . 5 1.6 The Legal System: Public International Law . . . . . . . . . . . . . 6 2 The WTO: A Brief Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . 9 3 Theoretical Foundation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 3.1 Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 3.2 Theses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 3.2.1 Developing a Theory: The Law of Entropy . . . . . . . . 13 3.2.2 Developing Thesis 1. . . . . . . . . . . . . . . . . . . . . . . . . . . 14 3.2.3 Developing Thesis 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 15 3.3 Method—What Is the “Role” of the Lawyer? . . . . . . . . . . . . 16 3.4 Verification of the Theses . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 3.4.1 The Nature of Thesis 1 . . . . . . . . . . . . . . . . . . . . . . . . 16 3.4.1.1 The Principle of Effectiveness . . . . . . . . . . . 16 3.4.1.2 Overlap of the Sub-Sections. . . . . . . . . . . . . 17 3.4.2 Verification of Thesis 2 . . . . . . . . . . . . . . . . . . . . . . . . 17 3.5 Material and Demarcation. . . . . . . . . . . . . . . . . . . . . . . . . . . 18 4 Roadmap—The Chapters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Chapter 2: Public International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 1 Jus Gentium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 2 Rights and Obligations in Relation to Sovereignty. . . . . . . . . . . 22 3 The Bilateral Nature of International Law . . . . . . . . . . . . . . . . . 24 4 Erga Omnes Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 5 Jus Cogens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 6 Sources in Jus Gentium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 7 Interpretation of the Sources by the “Courts” . . . . . . . . . . . . . . 30 8 Enforceability of Norms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

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Chapter 3: Sustainable Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 1 A Shift in Policy Direction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 2 Sovereignty over Natural Resources . . . . . . . . . . . . . . . . . . . . . . 32 3 Sustainable Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 3.1 The History of Sustainable Development. . . . . . . . . . . . . . . 33 3.2 The Substance of Sustainable Development . . . . . . . . . . . . 34 3.2.1 Future Generations . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 3.2.2 Balancing the Three Elements . . . . . . . . . . . . . . . . . . 36 3.2.3 International Cooperation . . . . . . . . . . . . . . . . . . . . . 37 3.2.4 Sustainable Development and International Trade . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 3.3 Legal Status of Sustainable Development . . . . . . . . . . . . . . 39 Chapter 4: The Environment—Biodiversity. . . . . . . . . . . . . . . . . . . . . . . 41 1 International Environmental Law . . . . . . . . . . . . . . . . . . . . . . . . 41 2 The “Environment” in Sustainable Development . . . . . . . . . . . 42 3 Environmental Protection of Animals . . . . . . . . . . . . . . . . . . . . . 44 3.1 Location of Natural Resources . . . . . . . . . . . . . . . . . . . . . . . 45 3.1.1 Animals Located Within the National Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 3.1.2 Shared Natural Resources . . . . . . . . . . . . . . . . . . . . . . 46 3.1.3 Natural Resources in Common Spaces: Common Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 4 Local, Regional and Global Environmental Issues . . . . . . . . . . . 47 5 The Convention on Biological Diversity . . . . . . . . . . . . . . . . . . . 48 5.1 Definition of Biological Diversity . . . . . . . . . . . . . . . . . . . . . 48 5.1.1 Anthropocentric and Ecocentric Approach . . . . . . . 49 5.2 The Convention in Context . . . . . . . . . . . . . . . . . . . . . . . . . 50 5.3 Hard Law Norms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 6 Which Species Are Threatened?—The IUCN Red List . . . . . . . 52 7 Trade in Endangered Species . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 7.1 CITES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 7.1.1 Appendix I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 7.1.2 Appendix II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 7.1.3 Appendix III. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 7.1.4 CITES as Global Type of Environmental Protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 7.1.5 CITES Does Not Follow Legal Borders . . . . . . . . . . . 55 7.1.6 CITES Appendices as Evidence that a Species Is Endangered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 8 Migratory Species . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 8.1 The Bonn Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 8.1.1 Endangered Migratory Species—Appendix I . . . . . . 57

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8.1.2 Migratory Species with Unfavorable Conservation Status—Appendix II . . . . . . . . . . . . . . . 58 8.1.3 Other Migratory Species . . . . . . . . . . . . . . . . . . . . . . . 59 8.2 Status of Migratory Species . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Habitat Protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 9.1 A Note on Habitat Protection and Conservation . . . . . . . . 60 9.2 The World Heritage Convention . . . . . . . . . . . . . . . . . . . . . 60 9.3 The Ramsar Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Marine Mammals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 10.1 The Whales. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Summing Up Protection of Animals . . . . . . . . . . . . . . . . . . . . . . 63 11.1 An Example: The Orangutan . . . . . . . . . . . . . . . . . . . . . . . 64 Full Sovereignty over Natural Resources? . . . . . . . . . . . . . . . . . . 65 12.1 “Common Concern” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 12.2 Limitations on Sovereignty . . . . . . . . . . . . . . . . . . . . . . . . . 66 12.3 Erga Omnes and Common Concern . . . . . . . . . . . . . . . . . . . 68 Invasive Alien Species . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 13.1 Genetically Modified Flora and Fauna. . . . . . . . . . . . . . . . 70 13.1.1 The Cartagena Protocol on Biosafety . . . . . . . . . . . 71 DDT and Bio-Accumulation in Polar Bears . . . . . . . . . . . . . . . . 72 14.1 Principle 21 and DDT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 14.1.1 Sulphur Dioxide and Nitrogen Oxides . . . . . . . . . 75 14.1.2 Chlorine-Based Substances . . . . . . . . . . . . . . . . . . . 75 14.1.3 Carbon Dioxide . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 14.1.4 Sub-Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 14.2 UNEP Conventions on Management of Pollutants. . . . . . 77 14.2.1 The Rotterdam Convention . . . . . . . . . . . . . . . . . . 78 14.2.2 The POPs Convention . . . . . . . . . . . . . . . . . . . . . . . 78 Conclusion and Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

Chapter 5: Animal Welfare . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 1.1 Legal Status of Animals—Animals Are Items. . . . . . . . . . . . 83 1.1.1 Can Animals Have Standing in Cruelty or Neglect Cases? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 1.1.2 Exception: Animals as “Wrong Doers” . . . . . . . . . . . . 86 1.1.3 International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 2 Introduction to Animal Welfare. . . . . . . . . . . . . . . . . . . . . . . . . . 87 2.1 Some of the Animals Are Protected in Some Societies. . . . . . 88 2.2 Feelings or Science. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 2.3 Human or Animal Focus? . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 2.4 Developing Countries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 2.5 Animal Welfare Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

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Trade-Related Animal Welfare Measures. . . . . . . . . . . . . . . . . . . 92 3.1 Slaughter of Animals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 3.1.1 Protection of Unborn Fetuses in Relation to Slaughter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 3.1.2 Religious Slaughter . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 3.1.2.1 Islam and Halal . . . . . . . . . . . . . . . . . . . . . . . 93 3.1.2.2 Judaism and Kosher . . . . . . . . . . . . . . . . . . . 96 3.1.3 Transportation of Animals Destined for Slaughter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 3.2 Fur Animals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 3.2.1 Fur from Cats, Dogs and Baby Seals. . . . . . . . . . . . . 100 3.2.1.1 Cats and Dogs . . . . . . . . . . . . . . . . . . . . . . . 100 3.2.1.2 Baby Seals (Pups) . . . . . . . . . . . . . . . . . . . . 101 3.2.2 Leg-Hold Traps . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 3.3 In Vivo Testing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 3.3.1 In Vivo Testing of Cosmetics . . . . . . . . . . . . . . . . . . . 105 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

Chapter 6: Environmental and Other Policies in the WTO . . . . . . . . . 107 1 Brief Historical Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 1.1 The GATT and the ITO. . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 1.2 The World Trade Organization. . . . . . . . . . . . . . . . . . . . . . 108 2 Sustainable Development in the WTO . . . . . . . . . . . . . . . . . . . 109 3 Environmental and/or Moral Values and the WTO Rules . . . 111 4 Disputes—The Basics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 4.1 Unilateral or MEA Trade Measure—A Clarification . . . . . 114 4.2 WTO Case Law? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 4.2.1 Consistency and Stare Decisis . . . . . . . . . . . . . . . . . . . 115 4.2.2 No De Jure Precedents . . . . . . . . . . . . . . . . . . . . . . . . 118 4.3 De Facto Precedents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 Chapter 7: GATT, SPS and TBT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125 1 Overview of the Relevant Annex 1A Agreements . . . . . . . . . . . 125 1.1 The GATT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 1.2 The SPS Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 1.2.1 Coverage Area for the SPS Agreement . . . . . . . . . . 127 1.2.2 The EC—GMO Case—Panel Report. . . . . . . . . . . . . 128 1.2.3 SPS Measures Are Trade Barriers . . . . . . . . . . . . . . . 132 1.3 The TBT Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 1.4 Choosing Between the Agreements . . . . . . . . . . . . . . . . . . 134 1.5 Burden of Proof Differences Between SPS/TBT and GATT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 1.5.1 SPS Article 3.1, 3.2 and 3.3 . . . . . . . . . . . . . . . . . . . . 138

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1.5.2 TBT Agreement Article 2.4. . . . . . . . . . . . . . . . . . . . 140 The Substantive Obligations in GATT. . . . . . . . . . . . . . . . . . . . 141 2.1 GATT Article I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 2.2 GATT Article III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 2.2.1 Difference Between Articles III:2 and III:4 . . . . . . . 143 2.2.2 Products as Such in Article III . . . . . . . . . . . . . . . . . 144 2.3 GATT Article XI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 2.3.1 Import/Export Licenses . . . . . . . . . . . . . . . . . . . . . . 146 2.3.2 Import Certification Programs . . . . . . . . . . . . . . . . . 147 2.3.3 Export Bans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 2.4 Presupposing a Violation of the Substantive Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 2.4.1 Total Trade Bans and GATT Articles III and XI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 2.4.2 Regional Bans and GATT Article XI . . . . . . . . . . . . 153 The GATT Exception: GATT Article XX . . . . . . . . . . . . . . . . . 154 3.1 Coverage Area of GATT Articles XX(a), (b) and (g) . . . . 154 3.2 Sequence of Steps . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 The “Tests” in GATT Article XX . . . . . . . . . . . . . . . . . . . . . . . . 156 4.1 The “Policy” Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 4.1.1 “Policy” Test in Sub-Section (a) . . . . . . . . . . . . . . . . 157 4.1.2 “Policy” Test in Sub-Section (b) . . . . . . . . . . . . . . . . 158 4.1.3 “Policy” Test in Sub-Section (g) . . . . . . . . . . . . . . . . 161 4.2 Subsequent Trade Tests . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162 4.2.1 Sub-Sections (a) and (b): “Necessity” Test. . . . . . . . 162 4.2.2 Sub-Section (g): “Related to” and “in Conjunction with” Tests . . . . . . . . . . . . . . . . . . . . . . 165 4.3 The Chapeau Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 4.3.1 Arbitrary and Unjustifiable Discrimination . . . . . . . 169 4.3.2 Disguised Restriction on Trade. . . . . . . . . . . . . . . . . 173 4.4 Overview: A Direct “Link” Between Measure and Policy Pursued . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174 4.4.1 The Flawed GSP “Policy” Analysis . . . . . . . . . . . . . . 175 Substantive Obligations in the SPS Agreement . . . . . . . . . . . . 177 5.1 General Requirements to SPS Measures . . . . . . . . . . . . . . 177 5.2 Three Types of Measures in Article 3 . . . . . . . . . . . . . . . . . 178 5.3 Risk Assessment in Article 5 . . . . . . . . . . . . . . . . . . . . . . . . 179 5.4 Developing Countries and the SPS Requirements . . . . . . 182 Substantive Obligations in the TBT Agreement. . . . . . . . . . . . 183 6.1 General Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183 6.1.1 International Standards. . . . . . . . . . . . . . . . . . . . . . . 183 6.1.2 Deviation from International Standards . . . . . . . . . 186 6.1.3 GATT Article III Resemblance . . . . . . . . . . . . . . . . . 187

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Chapter 8: The Policy Area of GATT Article XX . . . . . . . . . . . . . . . . . 189 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 2 Why Is the “Policy” Test Important? . . . . . . . . . . . . . . . . . . . . . 189 2.1 The “Policy” Test Defines the Scope of Article XX . . . . . . 189 2.2 The “Policy” Test Determines the Subsequent Trade Tests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190 2.2.1 Sub-Section (g) Is Easier to Satisfy than Sub-Sections (a) and (b) . . . . . . . . . . . . . . . . . . . . . . 191 2.2.2 Who Decides Which Sub-Section Applies? . . . . . . . 192 2.2.2.1 Case Law with Invocation of More than One Sub-Section . . . . . . . . . . . . . . . . 193 3 Overlap of Sub-Sections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195 3.1 What Is the Problem with Overlap of Sub-Sections? . . . . . 196 4 Tools for Further Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196 4.1 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196 4.2 Interpretation in the WTO . . . . . . . . . . . . . . . . . . . . . . . . . 197 4.3 VCLT Article 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199 4.3.1 Interpretation of an Exception. . . . . . . . . . . . . . . . . 202 4.3.2 Interpretation of the “Policy” Test . . . . . . . . . . . . . . 203 4.3.2.1 Evolutionary Interpretation . . . . . . . . . . . . 204 4.3.2.2 Lack of Importance Attached to Interpreting and Defining the Scope . . . . 206 4.3.2.2.1 U.S.—Gasoline “Clean Air” Issue Under Sub-Sections (b) and (g) . . . . . . . . 206 4.3.2.2.2 U.S.—Gambling Reasons for Gambling Prohibition Under Sub-Section (a) . . . . . . . . . . . . . . . . . . . . . . 208 4.3.2.2.3 Concluding Remarks on Importance of Definition of Scope . . . . . . 210 4.4 VCLT Article 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211 4.4.1 VCLT Article 32 and GATT Article XX . . . . . . . . . . 212 4.4.2 Preparatory Work in Non-VCLT Article 32 Situations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215 5 “Original” Scope of the Sub-Sections?. . . . . . . . . . . . . . . . . . . . 216 5.1 Negotiation Records for ITO . . . . . . . . . . . . . . . . . . . . . . . 217 5.2 Sub-Section (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218 5.3 Sub-Section (b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218 5.4 Sub-Section (g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219 6 Solving the Overlap Issue: The Principle of Effectiveness . . . . 222 6.1 The Principle of Effectiveness . . . . . . . . . . . . . . . . . . . . . . . 222 6.2 Applying the Principle to the “Policy” Test . . . . . . . . . . . . 226 7 A Special Note on “Morals” . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228 7.1 GATT Article XX(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228 7.2 GATS Article XIV(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228

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7.3 7.4 7.5 7.6

8

9

Defining a Coverage Area . . . . . . . . . . . . . . . . . . . . . . . . . . 230 Are All Policies Moral Policies? . . . . . . . . . . . . . . . . . . . . . . 231 Morals Cannot Be Screened for Their Validity . . . . . . . . . 232 Solution to Distinguishing Moral Measures from Other Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235 7.7 The Structure of GATT Article XX. . . . . . . . . . . . . . . . . . . 237 7.8 Value Judgment in the “Policy” Test . . . . . . . . . . . . . . . . . . 237 7.9 Value Test to Inform the Subsequent Trade Tests . . . . . . . 239 Categories of Animal Protection . . . . . . . . . . . . . . . . . . . . . . . . 241 8.1 Conservation of Living Natural Resources . . . . . . . . . . . . . 241 8.1.1 Sub-Section (b) or (g)? . . . . . . . . . . . . . . . . . . . . . . . 242 8.1.1.1 Inherent Overlap in the Treaty Text Among Sub-Sections (b) and (g) . . . . . . . 242 8.1.1.2 Analysis and Case Law on Sub-Section (g) . . . . . . . . . . . . . . . . . . . . . . 244 8.1.2 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247 8.2 Specimen “Conservation” . . . . . . . . . . . . . . . . . . . . . . . . . . 248 8.2.1 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251 8.3 Precautionary Measures—The Whale Example. . . . . . . . . 252 8.4 Habitat Protection: Orangutan Example . . . . . . . . . . . . . . 254 8.4.1 Trade Ban on Orangutan and Products Thereof. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254 8.4.2 Trade Ban on Ramin to Protect the Orangutan . . . 254 8.4.3 Trade Ban on Ramin to Protect Ramin . . . . . . . . . . 254 8.4.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255 8.5 Prohibition of DDT: The Polar Bear Example. . . . . . . . . . 255 8.6 Kosher and Halal Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255 8.7 Time Limits on Live Animal Transport . . . . . . . . . . . . . . . 256 8.8 Leg-Hold Traps. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256 8.9 Fur from Cats and Dogs. . . . . . . . . . . . . . . . . . . . . . . . . . . . 257 8.10 Fur from Baby Seals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257 8.11 Animal Testing of Cosmetics . . . . . . . . . . . . . . . . . . . . . . . 257 Conclusion and Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258

Chapter 9: A New Analytical Framework . . . . . . . . . . . . . . . . . . . . . . . . 261 1 Understanding Directions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261 1.1 Direction of Trade Measure . . . . . . . . . . . . . . . . . . . . . . . . 261 1.2 Why Distinguish Between Inwardly and Outwardly Directed Measures? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262 1.2.1 Sovereignty Issues and PPMs. . . . . . . . . . . . . . . . . . . 263 1.2.2 The WTO Issues on PPMs . . . . . . . . . . . . . . . . . . . . . 265 1.2.2.1 Historical GATT-WTO Approach to PPMs . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266

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1.2.2.2

Extrajurisdictionality and Extraterritoriality . . . . . . . . . . . . . . . . . . . . 268 1.2.2.3 Contemporary WTO Approach to PPMs . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269 1.3 Not Two but Three Categories of Measures. . . . . . . . . . . . 271 1.3.1 Internal Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . 271 1.3.2 NPR-PPMs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272 1.3.3 PR-PPMs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272 1.4 Systematic Approach for Article XX Analysis. . . . . . . . . . . 272 1.5 Practical Considerations Relating to PPMs . . . . . . . . . . . . 273 2 Two Issues: Direction and Value . . . . . . . . . . . . . . . . . . . . . . . . 274 2.1 Value Judgment of the Policy . . . . . . . . . . . . . . . . . . . . . . . 274 2.2 Direction of the Policy: Extra Tests? . . . . . . . . . . . . . . . . . . 275 3 Extra Trade Tests? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275 3.1 No Extra Trade Tests for Internal Measures . . . . . . . . . . . 275 3.1.1 Sub-Section (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276 3.1.2 Sub-Section (g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277 3.1.3 Chapeau Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277 3.2 Extra Trade Tests for PPMs . . . . . . . . . . . . . . . . . . . . . . . . . 278 3.2.1 Sub-Section (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279 3.2.2 Sub-Section (g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281 3.2.2.1 The U.S.—Gasoline Case . . . . . . . . . . . . . . . 281 3.2.2.2 The U.S.—Shrimp Case . . . . . . . . . . . . . . . . 285 3.2.3 Conclusion on Extra Tests in the Sub-Sections . . . . 285 3.2.4 Chapeau Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286 3.3 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287 4 Value Judgment and Directions . . . . . . . . . . . . . . . . . . . . . . . . . 288 4.1 Directions and Value Judgment . . . . . . . . . . . . . . . . . . . . . 288 4.2 Multilateral Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289 5 Inclusion of “Other Laws” in the Analysis . . . . . . . . . . . . . . . . . 290 5.1 MEAs: Chile—Swordfish and Doha Round Negotiations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290 5.2 Substantive Jurisdiction of the DSM in the WTO. . . . . . . . . . . 292 5.2.1 Disagreement on Terms of Reference . . . . . . . . . . . 294 5.3 Sources or Applicable Law in the DSM of the WTO. . . . . 296 5.3.1 Analysis of the DSU on Applicable Law . . . . . . . . . . 297 5.3.2 Conclusion and Case Law . . . . . . . . . . . . . . . . . . . . . 298 5.4 Other Sources in Interpretation of the Covered Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300 5.4.1 Interpretation of Other Sources. . . . . . . . . . . . . . . . 300 5.5 Erga Omnes or Erga Omnes Partes Obligations . . . . . . . . . . . 302 5.5.1 “Nexus” and NPR-PPMs. . . . . . . . . . . . . . . . . . . . . . . 303 5.5.1.1 Is a Trade Measure a CounterMeasure? . . . . . . . . . . . . . . . . . . . . . . . . . . . 305

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5.5.1.2

6 7

Do Trade Measures Qualify as Remedies? . . . . . . . . . . . . . . . . . . . . . . . . . . 306 5.5.2 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306 5.6 Coercion into De Facto Membership of MEAs . . . . . . . . . . 307 5.6.1 Internal Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . 308 5.6.2 PR-PPMs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308 5.6.3 NPR-PPMs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308 5.6.4 Not the Obligations, but the Policy . . . . . . . . . . . . . . 309 5.6.4.1 A Brilliant Solution by the Appellate Body for the Environment . . . . . . . . . . . . . 312 5.6.5 Conclusion on Coercion . . . . . . . . . . . . . . . . . . . . . . 313 5.7 Differences for Non-Scientific Policies . . . . . . . . . . . . . . . . 314 5.7.1 Morally Founded NPR-PPMs. . . . . . . . . . . . . . . . . . . 315 5.8 Two Opposite Polices? Two Proceedings? . . . . . . . . . . . . . 317 5.9 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318 De Lege Ferenda Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . 319 6.1 A TREMs Agreement in Annex 1A . . . . . . . . . . . . . . . . . . . 320 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322

Chapter 10: Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325 Bibliography. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351

FOREWORD It is a pleasure to welcome to the International Law and Development Series of Martinus Nijhoff Publishers the present work by Professor Laura Nielsen, The WTO, Animals and PPMs. Professor Nielsen’s path-breaking analysis of international trade law as it relates to animals and product or production methods (PPMs) comes at an auspicious time. Never before has the impact of the multilateral trading system on the environment and sustainable development been so apparent. Whether this system will help improve, or accelerate the degradation of, the condition and habitat of non-human species is uncertain. Whether the system will enhance human interaction with, and life in the context of, those species, is uncertain. How trade rules, and laws and regulations from other fields of law, relate to one another and apply to animal and PPM issues, is befuddling. Professor Nielsen’s book is path-breaking because it is a clear, cogent synthesis of a diverse array of laws and facts on a topic about which we all do (or should) care, but on which most of us could use insightful guidance. She provides that guidance. Professor Nielsen takes a characteristically balanced, thoughtful approach to her topic. She takes on hard questions. She eschews “easy” answers. In careful, lawyer-like fashion, she addresses issues of terminology, probes facts and then proceeds to identify and apply the relevant laws to her topic. She builds on years of scholarly research and dialogue with academics and practitioners around the world. Her ambitious analysis underscores the inherent inter-disciplinary nature—including public morality—of international trade law. In these and other respects, Professor Nielsen’s book fits squarely within the mission of the International Law and Development Series. That mission is to publish books on the intersection between international law and Third World development. The relevant fields of international law include trade law, commercial law, foreign direct investment, banking law, securities regulation, labor law, environmental law, corporate law, competition policy, public law, human rights and jurisprudence. The relevant aspects of development include legal, economic or political progress in one or more Third World countries. Books in the Series explore the relationship between doctrines in one of these international legal specialties and events in the Third World. They also may focus on comparative aspects of their

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subject, including discussions of structures and trends in one or more developed countries. Thus, books in the International Law and Development Series are intended for a global audience of legal practitioners, policy makers, and academicians. Professor Nielsen’s timely work is sure to be of interest to this audience. Raj Bhala Rice Distinguished Professor The University of Kansas School of Law Lawrence, Kansas

ACKNOWLEDGMENTS First and foremost, thanks to my parents for all the help and support they have given me during the process of writing my Ph.D. dissertation, as well as all the times they have taken care of my dog while I traveled or was busy in general. I also thank my dog, Moses, for still liking me after leaving him behind so many times. Moses also deserves a special animal note, because he showed me time after time that it “was worth it” to read and write about the most horrible things one can imagine in the area of animal torture and ill treatment; clearly many issues are not included in this book, because they are not trade related. I also thank my professor, Peter Pagh, for his invaluable guidance and impossible questions that made me think and rethink my entire project so many times; without those questions, my dissertation would be very different and not half as good. I would also like to thank my former professor, David A. Gantz, who, as always, supports and inspires me. Finally, I want to thank all my colleagues at the University of Copenhagen for all their support. During my Ph.D. I was invited to work at the Permanent Danish Mission to the United Nations in the WTO Section during the Danish Presidency to the EU. I thank Senior Advisor Albert Wright for giving me the idea, as well as Ambassador Henrik Ree Iversen for inviting me to assist the Danish Mission in the WTO Section. I also thank Deputy Head of Department Søren Kelstrup and Deputy Head of Department Morten Damkjær Nielsen for being my “bosses” at the Mission—helping and guiding me in my daily work. The position has been invaluable for me in gaining knowledge about the WTO and for establishing contacts: thank you so much, all of you (also the interns) at the Danish Mission in the fall of 2002. I would also like to thank my friends in the WTO for all their comments and advice, in particular Deputy Director General Alejandro Jara and Director of Economic Research and Statistics Division Patrick Low— and, of course, Bruno Ventrone from the archives who patiently helped me finding all the old GATT/ITO negotiation records. Special thanks to Eva Valentin Mortensen, for her work with counting and keeping track of all my footnotes, and Karin Fischer for reading and editing my Ph.D.

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Professors Ole Espersen, Jacques Bourgois and Appellate Body Member Giorgio Sacerdoti also deserve a special thanks for being such fair and inspiring referees on my Ph.D.—and thank you for all the challenging but good questions at my defense. I have taken many of your comments into consideration in my revision of the Ph.D. which I hope this book reflects. Geneva, October 18, 2006.

ABOUT THE AUTHOR Laura Nielsen received her Ph.D. from the University of Copenhagen, Faculty of Law, in 2005. Her LL.M, in International Trade Law, was earned at the University of Arizona in 1999, and she has a Danish Law Masters (2001) and Danish Bachelor in Law (1998), both from the University of Copenhagen, Faculty of Law. Dr. Nielsen is currently Assistant Professor in International Trade Law at the University of Copenhagen, Faculty of Law as well as the Academic Supervisor for Europe and Africa/Middle East for the ELSA WTO Moot Court Competition. During the fall of 2006, she was a visiting scholar in the WTO secretariat by invitation by Deputy Director General Alejandro Jara, and she was previously in Geneva when she represented Denmark in the WTO in the DSB during the Danish EU presidency in 2002. She has written various articles on WTO law in international journals and is the case author in 2005/6 for the ELSA WTO Moot Court Competition, “Subsidia—Agricultural Subsidies on Sweet Biscuits, Wheat & Pork.”

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LIST OF ABBREVIATIONS CFC CIT CTE DDT DSB DSM DSU EC ECJ EEC ESA ETP EU GATS GATT GMO GSP ICJ ICRW IGO ILC ITLOS ITO IWC LMO MEA MFN MMPA NGO NPR-PPM NTB OECD OIE PIC PIC POP

chlorofluorocarbon Court of International Trade Committee on Trade and Environment dichlorodiphenyltrichloroethane Dispute Settlement Body dispute settlement mechanism Dispute Settlement Understanding European Community(ies) European Court of Justice European Economic Community Endangered Species Act of 1973 Eastern Tropical Pacific Ocean European Union General Agreement on Trade in Services General Agreement on Tariffs and Trade genetically modified organism generalized system of preferences International Court of Justice International Convention for the Regulation of Whaling inter-governmental organization International Law Commission International Tribunal for the Law of the Seas International Trade Organization International Whaling Commission living modified organism multilateral environmental agreement most-favored nation Marine Mammal Protection Act non-governmental organization non-product-related process or production method non-tariff barrier Organization for Economic Cooperation and Development Office International des Epizooties (World Organization for Animal Health Convention Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade prior informed consent persistent organic pollutants

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POPs

Convention Stockholm Convention on Persistent Organic Pollutants PPM product or production method PR-PPM product-related process or production method SPS Agreement on the Application of Sanitary and Phytosanitary Measures TBT Agreement on Technical Barriers to Trade TEDs turtle excluder devices TREM trade-related environmental agreement TRIPS Agreement on Trade-Related Aspects of Intellectual Property Rights U.N. United Nations U.S. United States UNCLOS U.N. Convention on the Law of the Sea UNEP U.N. Environment Program VCLT Vienna Convention on the Law of Treaties WTO World Trade Organization

CHAPTER 1

INTRODUCTORY REMARKS Globalisation is not a policy, but a process, which has been going on since man climbed down from trees, emerged from caves and began to organize his life, by harvesting as well as hunting, exchanging goods and ideas.1 1

INTRODUCTION

1.1 What to Expect from this Book2 The focus of this book is on those trade measures that are designed to protect animals on the basis of environmental concerns or animal welfare concerns. As well, the book also addresses a broader range of issues concerning public morals and the environment. Therefore several World Trade Organization Agreements (hereinafter the WTO)3—the General Agreement on Tariffs and Trade (hereinafter the GATT),4 the Agreement on the Application of Sanitary and Phytosanitary Measures (hereinafter the SPS Agreement)5 and the Agreement on Technical Barriers to Trade (here-

1

MIKE MOORE, A WORLD WITHOUT WALLS 20 (2003).

This book is a revised version of my Ph.D. dissertation “The WTO, the Environment & the Animals: GATT Article XX(a), (b) & (g),” which I defended on March 4, 2005, at the University of Copenhagen, Faculty of Law, with Professors Ole Espersen, Jacques Bourgeois and Giorgio Sacerdoti as referees. The Dissertation is available for review at the University of Copenhagen, Faculty of Law. 2

3 The World Trade Organization was established in 1995 by the founding act—Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Apr. 15, 1994, 33 I.L.M. 1125 (1994). The WTO Agreement establishes the WTO, and all other agreements are annexed to this agreement. See the Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 1125 (1994), entered into force Jan. 1, 1995 [hereinafter the WTO Agreement]. 4 See the General Agreement on Tariffs and Trade, Oct. 30, 1947, 55 U.N.T.S. 194 [hereinafter GATT 1947]; the General Agreement on Tariffs and Trade, Apr. 15, 1994, WTO Agreement Annex 1A, Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 1125 (1994) [hereinafter GATT 1994]. GATT 1994 incorporates GATT 1947, and GATT 1994 did not alter the articles in issue in this book (namely GATT Articles I, III, XI and XX)—when GATT is mentioned, it is thus done without specifying that it is GATT 1947 as incorporated into GATT 1994. 5 See Agreement on the Application of Sanitary and Phytosanity Measures, Apr. 15, 1994, WTO Agreement Annex 1A, Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 1125 (1994) [hereinafter SPS Agreement].

1

2 • The WTO, Animals and PPMs

inafter the TBT Agreement)—are also addressed.6 On this basis, this book contributes not only to the biodiversity and animal welfare debate, but lends itself to environmental and public moral issues in general. The novelties presented in the book are a new way of analyzing GATT Article XX, which compared to both the SPS and TBT Agreements is antiquated and an analysis of why public moral issues are different from environmental issues in general. Where the former is a purely moral determination, the latter is a science-based determination, and this is important to understand when analyzing the reason behind a trade measure. 1.2 Where Do We Start? Globalization In order to understand the broader context of trade, globalization, environmental protection and sustainable development, I wish to take the reader on an imaginary trip to outer space. Imagine sitting somewhere in outer space looking down on Mother Earth, taking a little time off to travel in time and engaging in philosophical thoughts about “globalization.” The word, globalization, obviously refers to the little globe we are looking down upon, and what can be observed from high above is that the Internet connects people around the globe; trade in goods, services, stocks, bonds, intellectual property, etc., occurs every second around the globe— often by a click on the home computer. In the sky above, the airplanes transport people around the globe every minute; above the airplanes, satellites transmit news around the globe every minute. This mental picture appears amazing if we compare the globe with the year 1900, with 1950, with 1960 and all the way up till this very moment. After this little imaginary trip, it is easier to understand that this book uses the word “globalization” as being per se a descriptive word of the “process” of globalization. As the former Czech President, Vaclav Havel, said: “Globalization by itself is ‘morally neutral,’ it can be good or bad, depending on the kind of content we give to it.”7 Globalization, in the morally neutral sense, is thus the process we are in, and regardless of how difficult it is to comprehend all these changes, one thing, however, is easy to comprehend: our globe appears smaller and 6 See Agreement on Technical Barriers to Trade, Apr. 15, 1994, WTO Agreement Annex 1A, Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 1125 (1994) [hereinafter TBT Agreement]. 7 See Steven Erlanger, Havel Urges Multinationals to Heed the ‘Voices of the People, N.Y. TIMES, Aug. 23, 2000, at Foreign Desk.

Introductory Remarks • 3

smaller due to the globalized economy and information exchange. Stopping globalization is as unrealistic as stopping any change that has happened in history:8 could or should we have stopped other developments in time? As U.N. Secretary-General, Kofi Annan, puts it: “arguing against globalization is like arguing against the law of gravity.”9 Perhaps globalization can be stopped, perhaps some will argue that globalization should be stopped or slowed down, if at all possible. This book does not even touch upon those issues. Rather, this book looks at the one globe we achieved after the iron curtain fell; our undivided globe is getting smaller due to globalization. 1.3 Direction: Sustainable Development The effects of globalization are, however, getting larger and more noticeable on this small Earth: one may even say that chaos is increasing at the same speed as globalization. If one thinks of globalization as a high-speed train, questions arise: Where are we going? In what direction should we direct this high-speed train of globalization? What tracks should be closed? What tracks should de-route the train? While much effort by private individuals and entities has been put into sharing information via global television news channels and the Internet, the effect of this can cynically be said to have amounted to pressure on nation states to have more transparent systems of government because people are no longer “kept in the dark.” A good example was the global alert to SARS, which came from Chinese citizens who utilized the Internet and cell phone text messaging to alert the world to the outbreak in spite of the strategic downplay or cover up by its government.10 Conversely, the globalization of the economy has been in focus for many nations since the Bretton Woods institutions came into being.11 Thus, in this area of global8 For a thorough discussion of the critique of globalization in the context of the World Trade Organization, see MIKE MOORE, A WORLD WITHOUT WALLS 38–50 (2003). 9 Global Networks ‘The Most Promising Partnerships of our Globalizing Age,’ Secretary General Tells Fifty-Third Annual DPI/NGO Conference, Press Release, SG/SM/7517 PI/1273, Aug. 28, 2000, available at http://www.un.org. 10 See, e.g., China Cracks Down on High-Tech SARS Rumors, USA TODAY (from APonline, Beijing), May 15, 2003, available at http://www.usatoday.com; James Donnigan, SARS, the Internet and the Humiliated Communists, STRATEGY PAGE, Apr. 5, 2003, available at http:// www.strategypage.com. 11 See, e.g., Understanding the WTO: Basics, The GATT Years: From Havana to Marrakesh, available at http://www.wto.org; JOHN H. JACKSON ET AL., LEGAL PROBLEMS OF INTERNATIONAL ECONOMIC RELATIONS 278–88 (3d ed. 1995).

4 • The WTO, Animals and PPMs

ization, institutions to carry out the goal of advancing the global economy do exist.12 These institutions—and the United Nations itself—are, however, not capable of defining global goals. Each global institution is set up to administer specialized topics. Thus, there is no single global institution set up to answer these questions; we are left with the nation states defining “overall” global goals. The leaders of the nation states have, however, pointed out the goal numerous times: we have a global consensus on sustainable development,13 which, in essence, means that there should be development in three areas—economic development, social development and protecting the environment.14 1.4 Working Together, Separately? The global goal of sustainable development, as defined by world leaders, cannot be achieved by nation states acting alone. How can, e.g., Denmark ensure that the African continent experiences economic development? How can one state regulate issues, such as cross border pollution stemming from oil tankers sailing around the globe? Or stop the exploitation of child workers in foreign countries? Or make sure that all people have clean water to drink and food to eat? It is therefore evident that while we previously focused on solving our own problems within our own regulated nation state or group of states, the globalization process has caused a shift of focus and caused many issues to be impeded from unilateral problem solving. We have, in many ways, moved away from independence to interdependence, and we have global governance deficiency with regard to many aspects of sustainable development. U.N. Secretary-General Kofi Annan explains that: “Today, networks of production and finance have broken free from national borders and come truly global.”15 He further posits: “We must resolve to underpin the free global market with genuinely global val12

See, e.g., JACKSON ET AL., supra note 11, at 278–88.

More than 100 heads of state attended the most important summits on Sustainable Development in Rio and Johannesburg. See generally http://www.un.org/esa/ sustdev/csd/about_csd.htm (go to Sustainable Development and click under “what is CSD”). 13

14 See Chapter 3. See also, e.g., Stockholm Declaration of the United Nations Conference on Human Environment, adopted by the U.N. Conference on the Human Environment at Stockholm, June 16, 1972, U.N. Doc. A/CONF.48/14/Rev.1 at 3 (1973), U.N. Doc. A/CONF.48/14 at 2–65, and Corr.1 (1972), 11 I.L.M. 1416 (1972) [hereinafter Stockholm Declaration], Principle 8. 15 Kofi Annan, Laying the Foundations of a Fair and Free World Trade System, in THE ROLE OF WTO IN GLOBAL GOVERNANCE 19, 26 (Gary P. Sampson ed., 2001).

Introductory Remarks • 5

ues and secure it with effective institutions. We must show the same firm leadership in defense of human rights, labor standards, and the environment as we already do in defense of intellectual property.”16 While I am not arguing that globalization of the economy should be blamed for causing all the “wrongs” in the world, it is, however, apparent that globalization in its uncontrolled form does not offer any natural given protection of, e.g., human rights or environmental protection. Nor does it assure that the economic development is in fact economic sustainable development for the poorest countries. The U.N. Secretary-General asserts that globalization is not an enemy to development. He merely asserts that the poorest nations are the ones that are left out of globalization, and they thus do not benefit from it.17 He moreover asserts that those who benefit the most from globalization have both an obligation and an interest in looking after the casualties stemming from globalization because, otherwise, they would risk a global backlash.18 The above seemingly harsh reality of our globalized world points to the lack of a single organization set up to strike a balance between economic development, social development and protecting the environment. In its absence, rules relating to the three areas are to be found in a variety of instruments in international law,19 and as the U.N. Secretary-General Kofi Annan pointed out, some are more efficient and thus successful than others. 1.5 Narrowing the Focus: WTO, Animals and PPMs After having illuminated the context in which the goal of sustainable development operates and the lack of a single institution to administer this goal, it is time to explain the reasons for narrowing the scope of this book so dramatically. I have chosen to focus on the WTO because the WTO is an effective institution, which has incorporated the goal of sustainable development in the Preamble of its “charter.” Apart from adding the “institution” in my analysis, the WTO is also chosen because much of the attention and issues raised in the debate of globalization relates to trade in one manner or

16

Id. at 27.

17

See id. at 20.

18

See id.

For a thorough description of the various sources and law-making actors in the field of international law, see JOOST PAUWELYN, CONFLICT OF NORMS IN PUBLIC INTERNATIONAL LAW, HOW WTO LAW RELATES TO OTHER RULES OF INTERNATIONAL LAW 13–21 (2003). 19

6 • The WTO, Animals and PPMs

another. Moreover, the WTO relates to the economic prong of sustainable development in the sense that the WTO furthers the goal of trade liberalization, which is thought to lead to a rise in living standard for all participants.20 Finally, it should not be forgotten that the WTO has 149 members and covers more than 90 percent of world trade.21 The title also reveals another focus of the study: the animals. It may seem contradictory to limit the analysis to such a narrow scope. This is, nevertheless, chosen for a couple of reasons. First of all, dedicating a study to the goal of sustainable development, as a policy goal, would be a study of enormous dimensions. It would also be a very indefinable study because the goal of sustainable development can mean a lot of different things in the areas of economic and social development and environmental protection. Animals are usually considered part of the environment, and the title thus reflects the choice of focusing on one of the prongs of sustainable development—the environmental prong. This choice made the subject easier to work with. Secondly, the interface between the environment and the WTO has been the subject of a few cases and an extended debate and legal analyses to which I felt I had something to add. The innovative part of the analysis surround the issue of understanding the policies in the GATT Article XX analysis, as well as policy directions, which is very important when focusing on product or production methods (PPMs). The title singles out the animals, rather than the environment, primarily because WTO case law reflects little understanding of the difference between animal welfare and environmental protection, and I therefore thought it would be a good idea to add this dimension to the large pool of scholarly work on the WTO and the environment. Moreover, the environment is a large field, which I found easier to work with if I focused on the environmental rules relating to animals. In this way, it is possible to keep the scope fairly narrow and still maintain an overview of the many examples analyzed in the book. 1.6 The Legal System: Public International Law WTO Law and International Environmental Law are both sub-systems of public international law22 (also referred to as jus gentium). Therefore, the legal analyses of both sub-systems are not detached from the system it 20 See, e.g., RAJ BHALA, INTERNATIONAL TRADE LAW: THEORY AND PRACTICE 1–78 (Chapter 1, the Arguments for Free Trade) (2001). 21

See http://www.wto.org.

22

See Chapter 2. See also JOOST PAUWELYN, CONFLICT OF NORMS IN PUBLIC INTERLAW, HOW WTO LAW RELATES TO OTHER RULES OF INTERNATIONAL LAW

NATIONAL

Introductory Remarks • 7

belongs to. It should, however, be noted that animal welfare rules are not per se considered part of jus gentium as a sub-system, because animal welfare primarily is regulated domestically with domestically defined norms. In the area of international environmental law, world leaders have primarily agreed on environmental protection through multilateral environmental agreements (MEAs). Moreover, there are some customary rules of international environmental law. The MEAs are not governed by a “World Environmental Organization,” but are separate regimes with little instruments from the executive, legislative and judicial branches.23 The main problem, however, is the lack of an effective dispute settlement mechanism (DSM), which has led to little jurisprudence and has given the impression of a system that cannot be enforced.24 In addition, the parties to the MEAs vary in each agreement and each protocol to the agreements, which makes the entire system confusing. In the context of sustainable development, most MEAs do not further any goals of economic or social development, which leaves the MEAs to operate in their own universe. It should, however, be noted that more “modern” type MEAs address developing countries’ concerns.25 Moreover, it should not be forgotten that single nation states each have numerous laws designed to protect the environment apart from the ones enacted as implementation of the MEAs, as well as bi- and plurilateral agreements with other countries. An important point to note in relation to norms laid down in MEAs or other types of environmental agreements is that the only obligation is to protect the environment. Hence, when alluding to any kind of “balancing” in relation to the trade and environment debate, it should be underscored that in the environmental area, the balance is solely between sovereignty and the obligation to protect the environment. This simple point flows from the understanding that when a sovereign country becomes a party to a treaty, 28–40 (2003); PATRICIA BIRNIE & ALLAN BOYLE, INTERNATIONAL LAW & THE ENVIRONMENT 1–3 (2d ed. 2002). 23

See BIRNIE & BOYLE, supra note 22, at 34–37.

24

See, e.g., id. at 178–81.

25 See, e.g., Convention on Biological Diversity, concluded at Rio de Janeiro, June 6, 1992, entered into force Dec. 29, 1993, 31 I.L.M. 818 (1992) [hereinafter Convention on Biological Diversity].

8 • The WTO, Animals and PPMs

this treaty is essentially a limitation of the national sovereignty, e.g., when a country commits itself to preserve areas for bird habitats, this limits its sovereignty. The WTO’s role in the light of global governance offers better instruments; it has branches that resemblance a legislative, executive and judicial branch.26 In short, the WTO has interfered with the ability for the members to enact trade measures to protect the environment or animal welfare, because these measures are most likely inconsistent with the substantive obligation under the GATT. The trade measures may, however, be justified under the exceptions. If a WTO member finds that another WTO member’s trade measure is inconsistent with the substantive obligations under an WTO Agreement, it can submit it for review under the DSM, in accordance with the rules laid down in the Dispute Settlement Understanding (DSU).27 It can hence be said that there is a “screening” of animal welfare or environmentally motivated trade measures. The DSM of the WTO does not have the ability to change the legislation of any member, but the member may be subject to trade sanctions, if it does not bring its measures into conformity with the WTO obligations.28 In relation to sustainable development, the WTO also operates in its own universe; the only obligation is to refrain from making trade barriers, and the balance is thus solely between sovereignty and refraining from making trade barriers. As posited by the Appellate Body in Japan—Alcohol: The WTO Agreement is a treaty—the international equivalent of a contract. It is self-evident that in an exercise of their sovereignty, and in pursuit of their own respective national interests, the Members of the WTO have made a bargain. In exchange for the benefits they expect to derive as Members of the WTO, they have agreed to exercise their sovereignty according to the commitments they have made in the WTO Agreement.29 26 See, e.g., Frieder Roessler, The Institutional Balance Between the Judicial and the Political Organs of the WTO, in NEW DIRECTIONS IN INTERNATIONAL ECONOMIC LAW, ESSAYS IN HONOUR OF JOHN H. JACKSON 324, 324–45 (Marco Bronckers & Reinhard Quick eds., 2000). 27 See Understanding on Rules and Procedures Governing the Settlement of Disputes, Apr. 15, 1994, WTO Agreement Annex 2, Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 1125 (1994) [hereinafter DSU]. 28

See DSU Article 22.

29 Japan—Taxes on Alcoholic Beverages, Report of the Appellate Body, WT/DS8/ AB/R, WT/DS10/AB/R, WT/DS11/AB/R, Oct. 4, 1996, 18 [hereinafter Japan— Alcohol Appellate Body Report].

Introductory Remarks • 9

Curiously—as mentioned by the U.N. Secretary-General—the protection of intellectual property does not appear to fit the description of liberalizing trade, because it, by and large, has led to the creation of a monopoly held by multinational corporations in the developed countries,30 but this is nevertheless included in the WTO. The criticism of the WTO regarding sustainable development is endless, both regarding the economic development aspect, as well as to the environmental aspect. 2

THE WTO: A BRIEF INTRODUCTION

Before the end of 1993, it was considered doubtful whether a World Trade Organization would emerge from the Uruguay Round.31 However, the most unthinkable happened; the WTO was created with a worldwide, mandatory and binding dispute settlement mechanism—the only one of its kind in the world at that scale.32 Equally, before the EC—Asbestos33 and U.S.—Shrimp 21.534 cases, it was viewed at somewhat naïve to believe that the WTO would ever authorize trade measures that violated the substantive obligations under the GATT by accepting the invocation of the so-called “environmental exceptions” in the GATT—in particular if the measure was outwardly directed.35 Even though much effort has been put into wonder30 For a further description of these views, which are primarily found in the developing countries’ critique of including intellectual property in the WTO, see, e.g., RAJ BHALA, INTERNATIONAL TRADE LAW: THEORY AND PRACTICE 1193–1200 (2001). 31 See, e.g., HUGO PAEMEN & ALEXANDRA BENSCH, FROM THE GATT TO THE WTO THE EUROPEAN COMMUNITY IN THE URUGUAY ROUND 263 (1995). See also news coverage from the period leading up to the conclusion of the Uruguay Round: David Dodwell, Trade Talks Fall on Deaf Ears: The Uruguay Round is deadlocked, but it is too Important to Fail, FIN. TIMES (London), Apr. 2, 1992, at 18; Peter Torday, Last Ditch Try for GATT Accord, INDEPENDENT (London), May 23, 1993, at 3; David Gardner & Tim Coone, Failure on Market Access Could ‘Sink’ GATT Round—David Gardner and Tim Coone Interview Peter Sutherland, the newly Appointed Chief of GATT, FIN. TIMES (LONDON), June 11, 1993, at World Trade News at 5; Larry Elliot, Geneva Trade Breakthrough Brings an End to the SevenYear Hitch, GUARDIAN (LONDON), Dec. 15, 1993, at City Page 12. 32 Ehlermann posits that the compulsory character distinguishes the DSM of the WTO from all other existing DSMs. See Claus-Dieter Ehlermann, Six Years on the Bench of the “World Trade Court,” 36 J. WORLD TRADE 605, 607 (2002). See also, David A. Gantz, Introduction to the World Trade System and Trade Laws Protecting US Business, 18 WHITTIER L. REV. 289, 297 (1997). 33 See European Communities—Measures Affecting Asbestos and AsbestosContaining Products, Report of the Appellate Body, Mar. 12, 2001, WT/DS135/AB/R [hereinafter EC—Asbestos Appellate Body Report]. 34 See United States—Import Prohibition of Certain Shrimp and Shrimp Products, Recourse to Article 21.5 of the DSU by Malaysia, Report of the Appellate Body, Oct. 22, 2001, WT/DS58/AB/RW [hereinafter U.S.—Shrimp 21.5 Appellate Body Report]. 35

See, e.g., Robert Housman & Durwood Zaelke, Trade, Environment, and Sustainable

10 • The WTO, Animals and PPMs

ing how the GATT could be amended to provide better options for environmental protection, the Appellate Body, with the stroke of a pen, did what no diplomats had been able to do before: it created an opening to protect the environment at the expense of trade. The enormous power of the Appellate Body was probably unanticipated with the creation of the WTO.36 In the old GATT system, the DSM was a diplomatic model that aimed at solving particular trade disputes between the contracting parties and nothing else. While some features of the present DSM are carried over from the pragmatic diplomatic model, the Appellate Body has increasingly moved toward a more judicial approach;37 the DSM is still aimed at solving particular trade disputes that arise among the members, but case law has developed rapidly; thus, stare decisis and other court-like features are emerging.38 The consequence of the powers given to the Appellate Body and the development into a more judicial DSM is that the Appellate Body has issued reports that are highly controversial. The issuance of the U.S.—Shrimp 21.5 Appellate Body Report in particular highlighted the controversy. Not only did this case authorize the United States to continue environmentally motivated measures at the expense of trade, it also authorized the use of unilateral extraterritorial environmental measures to the dismay of many WTO members.39 Some argues that the Appellate Body, by issuing the U.S.—Shrimp reports, asserted powers beyond the powers it was granted—so it can easily be estab-

Development: A Primer, 15 HASTINGS INT’L & COMP. L. REV. 535, 546–52 (1992); Richard W. Parker, The Use and Abuse of Trade Leverage to Protect the Global Commons: What We Can Learn From the Tuna-Dolphin Conflict, 12 GEO. INT’L ENVTL. L. REV. 1, 5 (1999); DANIEL C. ESTY, GREENING THE GATT 104 (1994). 36 See, e.g., Ehlermann’s description of the imbalance between the DSM and the political decision-making process; Claus-Dieter Ehlermann, Six Years on the Bench of the “World Trade Court,” 36 J. WORLD TRADE 605, 606 (2002). 37 The labels “pragmatic” and “judicial” could equally be called “diplomatic” and “legalistic.” The labels are borrowed from Raj Bhala. See BHALA, supra note 20, at 197. 38 See generally, Raj Bhala, The Myth About Stare Decisis and International Trade Law (Part One of Trilogy), 14 AM. U. INT’L L. REV. 845 (1999); Raj Bhala, The Precedent Setters: De Facto Stare Decisis in WTO Adjudication (Part Two of Trilogy), 9 J. TRANSNAT’L L. & POL’Y 1 (1999); Raj Bhala, Global Trade Issues in the New Millennium: The Power of the Past: Towards De Jure Stare Decisis in WTO Adjudication (Part Three of Trilogy), 33 GEO. WASH. INT’L L. REV. 873 (2001). 39 Comments on unilateral and/or extrajurisdictional/extraterritorial measures by e.g., Thailand and India at the adoption of the Shrimp Appellate Body Report; see Minutes of the DSB Meeting of Nov. 6, 1998, WT/DSB/M/50, Dec. 14, 1998, para. 1(a), at 1, 8. By the time of the issuance of the Shrimp 21.5 Appellate Body Report, few countries commented on the issue; see Minutes of the DSB Meeting of Nov. 21, 2001, WT/DSB/M/113, Dec. 17, 2001, paras. 4–15.

Introductory Remarks • 11

lished that its ruling were in opposition to the political opinion among the membership.40 Even though the GATT,41 and later the WTO, was set up to liberalize trade, environmental concerns emerged early on in the GATT.42 While most developed countries have been searching for better options to protect the environment at the expense of trade, they have not been able to negotiate an environmental agreement under the WTO, amend the GATT or, for that matter, create an “International Environmental Organization” with a worldwide, mandatory and binding dispute settlement mechanism. Thus, traderelated environmental measures have been addressed persistently in the GATT and WTO both in case law and negotiations,43 while labor (social) issues were thrown out of the WTO area under the Singapore Ministerial,44 and they have never been the topic of a GATT or WTO dispute. This global governance monopoly the WTO holds and its—to the public—apparently little concern for the environment and even lesser for social issues, has often led to a public outcry against the WTO. Most famous is the Seattle riots where people showed up dressed as dolphins, and Seattle ended up looking like a civil war area. The reason for the reluctance of the WTO regarding environmental and social issues is not because some cruel diplomats do not like animals, trees or fresh air or, for that matter, because it is oblivious to the fact that child labor is still flourishing. Several issues come into play when wondering why trade takes such preference in the majority of the world’s capitals: trade is viewed as the primary tool to enhance economic development. Moreover, it is important to remember that the GATT emerged in the years following World War II, an era where the concept of sustainable development was not yet invented. Thus, the WTO carried over the goal of liberalizing free trade, and while this is the most important goal for the organization, other values historically hold lit-

40 India and Mexico clearly stated the Appellate Body overstepped its mandate in the Shrimp case; see WT/DSB/M/50, para. 1(a), at 9–10, 13. 41 Here the reference to GATT is GATT functioning as the de facto organization before the advent of the WTO. For an explanation hereof, see, e.g., BHALA, supra note 20, at 127–28. 42 For a description of the so called “EMIT” group from 1971 and the preparation study for the U.N. Conference on Human Environment in Stockholm in 1971, see http://www.wto.org, go to “environment” under “trade topics.” 43 See Doha Ministerial Declaration, adopted in Doha Nov. 14, 2001, WT/MIN (01)/DEC/1. 44 See Singapore Ministerial Declaration, adopted in Singapore Dec. 13, 1996, WT/MIN(96)/DEC, at para. 4.

12 • The WTO, Animals and PPMs

tle power of persuasion. Another reason for the reluctance—and probably the most important reason why no amendment was ever reached on the environmental exception—is the developing countries’ suspicion against such ideas. In the trade area, the developing countries struggle enough with attempts to get market access, and some of them view environmental measures and labor standards as yet another way to keep their products out of the developed countries’ markets. In addition, it can be argued that the imposition of environmental and labor protection is an imperialistic way for the rich countries to export their values in a post-colonial world, which, in effect, leads to de facto colonialism, because it removes the poor countries’ comparative advantage. Obviously, more arguments go into debate, but the developed countries have, over the years, realized that in developing countries, it is more important to feed one’s family than to clean up pollution or save Flipper (the name of a famous dolphin in a popular television show) from drowning in tuna fishing nets. 3

THEORETICAL FOUNDATION

This book is structured around two theses and the verification of them. The development of the theses is therefore illuminated below, as well as some thoughts into the verification of them. 3.1 Purpose On a general level the purpose is to clarify how animals are protected in international environmental law with a particular view to trade-related environmental measures and how these are “screened” in the DSM of the WTO. Moreover, it is a goal to “untangle” the concepts of environmental protection of animals and animal welfare protection in relation to trade measures, where this distinction thus far has not been carried through in the GATT/WTO case law and scholarly analysis hereof. On a more specific level, a goal is to provide a new systematic analytical framework for the analysis of GATT Article XX(a), (b) and (g). It is the goal that this systematic framework will provide guidance to distinguish between the different trade measures and thus create a differentiated GATT Article XX analysis of them; e.g., the analysis of a “morally” founded internal ban on dog fur must be analyzed differently than an outwardly directed “morally” founded ban on tuna fish caught using methods unsafe to dolphins. The framework should, moreover, encompass specialized issues such as, e.g., extraterritoriality and extrajurisdictionality and not treat these issues as something “different” than other issues of the GATT Article XX analysis. Another purpose is to illuminate the overlooked importance of the “policy” test in GATT Article XX. The only “test” in GATT Article XX,

Introductory Remarks • 13

which can address the differences between the policies from which trade measures could arise, is the “policy” test. This became apparent when it was understood that the other tests in GATT Article XX were “core” trade tests, which needed to be “informed” by the policy. Finally, the book proposes a new Article XX or an “interpretation” of Article XX.45 The book acknowledges that the Doha Declaration did not signal a wish to rewrite GATT Article XX, but the book nevertheless proposes improvements where problem areas appear to arise. The author hence proposes to leave it up to the membership and not the Appellate Body to decide the unanswered questions or problem areas as illuminated in this book, inter alia, what criteria should be attached to the permissiveness of having a WTO member be coerced into de facto complying with the rules of a MEA? Or to coercing another member into observance of its labor laws, environmental laws, etc.? 3.2 Theses The two theses are introduced below. 3.2.1

Developing a Theory: The Law of Entropy

In chemistry, the concept of entropy means that disorder or chaos is increasing, and the only way to restore order is to add energy. This concept is often illuminated with a room, which is “messy”; it takes a lot of hard work to clean it up again. The creation of a systematic framework for the analysis of GATT Article XX thus diminishes the entropy of GATT Article XX—i.e., cleans up the “mess.” Finding a manner to create such a framework, however, had a few detours. The book initially operated with the idea that “order” was created if the non-scientifically verifiable measures could be deferred to sub-section (a) and all scientifically verifiable measures to sub-sections (b) and (g)—through the utilization of the “policy” test. This was thought to create some kind of a “system”; i.e., it would be a reasonable way to distinguish between, e.g., animal welfare measures, which cannot be scientifically verified because they are based on morals, whereas, e.g., environmental measures to protect endangered species can be scientifically verified (it can be verified whether a species indeed is endangered). Moreover, the book was intended to follow the traditional approach of analyzing PPMs as a special issue—and something that related to extraterritorial and extrajurisdictional application. The initial idea was, inter alia, abandoned when it became clear that it had the inherent flaw of being a

45

See WTO Agreement Article IX:2.

14 • The WTO, Animals and PPMs

thesis originating in the sphere of directing the panels to do something— i.e., de sententia ferenda deferring “moral” measures under sub-section (a). The line between what the present stage of the law is (de lege lata) and what the panels should do (de sententia ferenda) may be difficult to detect, and although this book aims at refraining from including de sententia ferenda recommendations, it may not always be possible. However, having a main thesis in the sphere of de sententia ferenda appeared to be problematic in light of the fact that two panels already had chosen not to categorize “moral” measures under sub-section (a), albeit these two panel reports are old GATT reports and unadopted and thus probably have quite insignificant value as precedents—if precedential value can be said to be a concept within the WTO system. 3.2.2

Developing Thesis 1

The original idea of categorizing “moral” measures under GATT Article XX(a) sparked the idea for the development of Thesis 1 (presented below). It appeared reasonable that utilizing textual treaty interpretation on such antiquated categories as sub-sections (a), (b) and (g) was a good mechanism to “include” modern problems in the “old” sub-sections. However, based on a simple common sense reading of the sub-sections, it was evident that a textual interpretation of sub-sections (a), (b) and (g) would lead to a large overlap among the sub-sections. For example, a trade measure, which aimed at protecting dolphins from drowning in fishing nets, mainly because they are marine mammals and thus can drown and not because they are endangered, textually can fall within all three sub-sections. The measure can be argued to be a “moral” measure, because it is the “moral” of this country to protect marine mammals from drowning—and hence falls within the scope of sub-section (a), which contains the word “moral.” The measure can also fall within sub-section (b), because it aims at measures designed to protect “animal life.” Finally, the measure can also fall within sub-section (g), because dolphins can be understood to be an “exhaustible natural resource,” which this sub-section aims at protecting. By analyzing cases where one or more sub-sections had been invoked, it became evident that it was critical to analyze this aspect of GATT Article XX.46 Moreover, the ideas was that a too broad overlap of two or more of the

46 The overlap of the sub-sections was also noted and criticized by Pakistan and India at the Shrimp Appellate Body Report for purposes of sub-sections (b) and (g); see WT/DSB/M/50, para. 1(a), at 5, 10.

Introductory Remarks • 15

sub-sections was not in conformity with the principle of effectiveness of treaty interpretation47, which also poses issues in relation to DSU Article 3.2. Thesis 1 reads as follows: The “overlap” between the sub-sections of Article XX is not in conformity with the principle of effectiveness in treaty interpretation. 3.2.3

Developing Thesis 2

The new and systematic way of approaching GATT Article XX was developed from the idea that the “code” of GATT Article XX could be “cracked” by dividing the different measures into three sub-categories: internal measures; non-product-related process or production methods (NPR-PPMs); and product-related process or production methods (PR-PPMs). These three categories assist the analysis under either sub-section of Article XX. The problems encountered with this approach did not compromise the systematic manner in which trade measures could be analyzed under GATT Article XX, but rather consisted of certain identifiable weaknesses inherent in GATT Article XX. The main problem is the combination “moral” NPR-PPMs, which pose analytical problems of such a character that this book could not come closer to a “solution” than outlining the analytical problems attached to those particular trade measures in the WTO system and suggest that the membership make decisions on how to treat these measures. It should, however, be noted that while the idea of splitting the measures into three distinct categories is not novel, it is nevertheless a novelty to utilize the three categories to create a systematic framework for the GATT Article XX analysis. Thesis 2 reads as follows: The division of measures under sub-sections (a), (b) and (g)—but in principle also the other measures—into three distinct categories (internal measures, non-product-related PPMs and product-related PPMs) can provide a systematic analytical framework for the analy47 This was also noted by one of the lawyers in the Shrimp Appellate Body proceeding; see Arthur E. Appleton, Shrimp/Turtle: Untangling the Nets, 2. J. INT’L ECON. L. 477, 482–83, 496 (1999). The thesis posited in this book, however, goes further than merely the U.S.—Shrimp case and the relationship between sub-section (b) and (g). Appleton’s conclusions, for purposes of the U.S.—Shrimp case, do thus not per se verify the thesis, nor render the thesis irrelevant.

16 • The WTO, Animals and PPMs

sis of the sub-sections and the chapeau analysis. This framework, inter alia, fills the gaps of the analytical problems regarding the analysis of extraterritorial and/or extrajurisdictional effect and the discussion of location of natural resources, which are sought protected. 3.3 Method—What Is the “Role” of the Lawyer? This book primarily consists of traditional dogmatic legal analysis of the law as it is (de lege lata) in verifying the theses posited above. The book aims at refraining from making suggestions of how the panels and the Appellate Body should act (de sententia ferenda).48 Rather, the book attempts to be faithful to illuminating different options available in each analysis. 3.4 Verification of the Theses The theses were formed, inter alia, by distinguishing between de lege lata and de sententia ferenda. The theses are thus chosen, inter alia, from the criteria of whether they can be verified at all and whether such verification can be conducted within the sphere of an analysis of the law as it is, i.e., de lege lata. Naturally, Theses 1 and 2 are verified in different manners due to their differences. 3.4.1

The Nature of Thesis 1

The principle of effectiveness and treaty interpretation based on the Vienna Convention on the Law of Treaties (VCLT)49 are principles the Appellate Body has pledged itself faithful to after the advent of the WTO and thus DSU Article 3.2. Thesis 1, by nature, thus surrounds the issue of whether the Appellate Body and the panels conduct treaty interpretation without following a principle, which the Appellate Body has pledged itself faithful to. 3.4.1.1 The Principle of Effectiveness In order to verify Thesis 1, it is important to understand that this book is a two-step mechanism for utilizing the principle of effectiveness.

48 For a more extended analysis of the concepts de lege lata, de lege ferenda and de lege sentienda, see, e.g., ALF ROSS, ON LAW AND JUSTICE 327–32 (1959); Alf Ross, Videnskab og Politik i Juridisk Doktrin, in TIDSSKRIFT FOR RETTSVITENSKAP, 1952, 252–57, reprinted in ISI FOIGHEL ET AL., ALF ROSS 1899–1999, RET SOM TEKNIK KUNST OG VIDENSKAB, 295–301 (Jurist- og Økonomforbundets Forlag, 1999). 49 See Vienna Convention on the Law on Treaties, concluded at Vienna, May 23, 1969, entered into force, Jan. 27, 1988, 1155 U.N.T.S. 331, 8 I.L.M. 679 (1969).

Introductory Remarks • 17

1.

2.

The principle of effectiveness must come into consideration when words, clauses or passages are found to be redundant or superfluous. It must be evaluated whether a different type of interpretation exists where the redundancy is cured. This type of interpretation is, however, limited by the notion that the treaty interpreter must not revise the treaty.

The reason for these two steps in verifying whether the principle of effectiveness in treaty interpretation is utilized is that it is a principle, which can solely be utilized in casu or in concreto. An analysis in abstracto is not possible; i.e., it does not give any meaning to merely establish that the principle of effectiveness is violated, because certain passages or clauses are rendered meaningless. Rather, it must be evaluated also whether a different interpretation that cured the redundancy was available or possible. Interpretation does not take place in the abstract sphere, because it is impossible to apply abstract facts to the law. Therefore, the principle of effectiveness is linked closely to the utilization in the specific cases—i.e., in concreto. The inductive method of analysis is an analysis of issues in concreto, which can illuminate an effect or a result in abstracto. Hence, the verification of issues relating to the principle of effectiveness is analyzed utilizing the inductive method. 3.4.1.2 Overlap of the Sub-Sections Substantively, Thesis 1 describes the overlap among the sub-sections in abstracto. To generate a result in abstracto, the inductive method of analysis is equally utilized in this part of verifying Thesis 1. Again, the explanation is that the inductive method is chosen because the analysis of the sub-section by the panels and the Appellate Body takes place in particular cases, involving particular trade measures. Defining the scope of each sub-section in abstracto is hence far from the practical utilization of GATT Article XX. The topic of the book, animal welfare protection and environmental protection of animals, assists in the verification by generating illustrative (hypothetical) examples of a series of trade measures, which are issues in concreto. 3.4.2

Verification of Thesis 2

Verification of Thesis 2 is more complicated than Thesis 1 due to the inherent difficulty in verifying whether an analytical framework offers any advantages when analyzing measures under Article XX.

18 • The WTO, Animals and PPMs

The verification of Thesis 2 therefore consists of the presentation of the analytical framework itself, where the various analyses per se illuminate the advantages in this analytical framework. The analyses are, inter alia, the issue of analyzing PPMs, the issue of analyzing PPMs stemming from unilaterally determined “moral” standards, and the issue of coercing a WTO member into observing the norms as laid down in a MEA without being a party thereto. Put differently, the verification consists of a series of Article XX analyses that should be easier to understand when organized according to the framework. 3.5 Material and Demarcation First and foremost, the law as the primary material. In the area of environmental protection of animals, most of the law exists in the form of treaties. The treaties do, however, not reveal all the information needed to generate the link to practical examples. Therefore, empiric material is utilized to generate the link to the “real world.” This is equally done in the area of animal welfare protection, where hardly any international agreements exist on the matter. Therefore, national legislation and empiric material from organizations, and news material are also utilized. The references to empiric material are not so prevalent in the WTO analyses. On the issue of the WTO, it should be noted that while the functioning of the organization is founded by a treaty, the WTO has carried over many “traditions” from the GATT,50 which I became familiar with after spending some time in the WTO headquarters during the fall of 2002, where I was so fortunate to get a chance to represent the Danish EU presidency in the dispute settlement area in the WTO. One example of knowledge gained from this time is understanding the decision-making process: where lawyers search eagerly in the legal texts, one visit to the WTO building, and one discussion with a WTO diplomat, leaves the lawyer in confusion after the diplomat has uttered the following strange words: “we do not vote around here . . . some people say we voted back in 1956 or so.” 4

ROADMAP—THE CHAPTERS

Chapter 2 consists of the “setting” of the book, i.e., an illumination of the most important concepts in public international law, which is the legal system this book operates in.

50

The GATT in this context being the de facto “institution.”

Introductory Remarks • 19

Chapter 3 is a brief outline of the concept of sustainable development, which is included because the policies in issue in this book are intertwined with this concept. Chapter 4 is an outline and analysis of the environmental protection of animals in the area of international environmental law. Chapter 5 is an outline and analysis of animal welfare protection, which is, by and large, a domestic issue. Chapter 6 is a broad introduction into the WTO, its history, how sustainable development is incorporated in the Preamble, and how “other values” are analyzed within the WTO. Chapter 7 is an overview of the three relevant Annex 1A Agreements for purposes of environmental and animal welfare protection. I have chosen to structure it different than one would in a text book because this is not a text book, for teaching purpose. First, I introduce the different Agreements briefly and then I move on to explaining how, via lex specialis, the panels and the Appellate Body choose among the agreements, as well as the differences in nature of the agreements, illuminated also by the difference in burden of proof. Then I give an extensive introduction into the relevant GATT articles, followed by a brief introduction to the SPS Agreement, followed by an equally brief introduction to the TBT Agreement. Chapter 8 is the in-depth analysis of the differences of the different sub-sections in GATT Article XX. Chapter 9 is the suggested new analytical framework for GATT Article XX—hereunder an extensive analysis of PPMs. Finally, Chapter 10 is the conclusion.

CHAPTER 2

PUBLIC INTERNATIONAL LAW Imagine there’s no countries It isn’t hard to do. Nothing to kill or die for And no religion too. Imagine all the people Living life in peace . . . You may say I’m a dreamer But I’m not the only one I hope someday you’ll join us And the world will be as one1 1

JUS GENTIUM

Legal rules relating to states and/or intergovernmental organizations (IGOs)2 are the discipline of jus gentium—also referred to as public international law or merely international law. As posited by Hans Kelsen, before the IGOs became important players: “International Law or the Law of Nations is the name of a body of rules which—according to the usual definition—regulate the conduct of the states in their intercourse with one another.”3 This chapter gives an outline of the concepts and rules in jus gentium that are relevant for the analyses in this book. Initially, a few basic observations should be noted: 1.

1

In jus gentium, the relations among states are horizontal in nature, which means that the vertical structure, with three branches of government utilized in most domestic systems (the judicial branch, the executive branch and the legislative branch), has not crystallized (yet) in the world community in spite of the increased interdependence due to globalization.4 The primary consequence hereof is, according to Cassese, that

John Lennon, Imagine, Sept. 9, 1971.

Non-governmental organizations (NGOs) may have a de lege ferenda agenda on issues in jus gentium. 2

3

HANS KELSEN, PRINCIPLES OF INTERNATIONAL LAW 3 (1952).

4

See ANTONIO CASSESE, INTERNATIONAL LAW 5–6 (2001).

21

22 • The WTO, Animals and PPMs

2.

3.

2

in carrying out functions of the three branches in IGOs, the individual governments do not act on behalf of, or in the interest of the IGO, but in their own self-interest.5 It must be noted that the U.N. Charter6 is based on the principle that all states are equal and sovereign.7 In reality, all states are, however, not equal in terms of power, and countries’ actions can often be understood better by looking at their power in the world community. In terms of the WTO, the members’ ability to retaliate against another WTO member in the event of non-implementation by the losing party, is closely linked to its economic ability and interest in retaliation and not merely its legal right to do so; e.g., a poor country cannot afford retaliating against any country—and a rich country will not be affected by minor retaliation. It must be noted that international environmental law and the laws of the WTO are to be understood as branches or sub-systems of public international law.8 Thus, neither international environmental law nor the laws of the WTO system can be said to be a self-contained regime or a closed legal circuit. Both systems follow the general principles of public international law, equal to how different branches of domestic law, such as criminal law and family law, are branches of the domestic legal systems. The possibly evolved customs inside each sub-system are not the focus of the analyses in this book and will therefore not be discussed; the exercise is simply to lay the foundations for the further analysis within the framework of the rules in jus gentium.

RIGHTS AND OBLIGATIONS IN RELATION TO SOVEREIGNTY

Sovereignty is a core concept in the analyses in this book; as well, sovereignty also is a core concept in jus gentium. It is therefore vital to under5

See id. at 6.

6 See Charter of the United Nations (as amended). Concluded at San Francisco, June 26, 1945, U.N.T.S. XVI, 1946 U.K.T.S 67 [hereinafter U.N. Charter]. 7

See U.N. Charter Article 2.1.

8 For an extended analysis of why the WTO system often has been viewed as a closed circuit or self-contained regime, see, e.g., JOOST PAUWELYN, CONFLICT OF NORMS IN PUBLIC INTERNATIONAL LAW, HOW WTO LAW RELATES TO OTHER RULES OF INTERNATIONAL LAW 28–40 (2003), where he concludes and explains that the WTO system is a sub-system or a separate branch of public international law. For an analysis of why international environmental law is a sub-system or a separate branch of public international law, see, e.g., PATRICIA BIRNIE & ALLAN BOYLE, INTERNATIONAL LAW & THE ENVIRONMENT 1–3 (2d ed. 2002).

Public International Law • 23

score that in relation to trade-related animal welfare and environment measures, a country is free to act or refrain from acting in a certain manner, if the country has unlimited sovereignty, i.e., if it is not obliged to act or refrain from acting by a legal norm. In the same manner, a country is free to adopt any trade restrictions it wishes, if it is not bound by a legal norm prohibiting this. The limitations to sovereignty are found in norms stemming from either treaties or customary law (also referred to as general international law). For simplicity, the four categories of norms developed by Kelsen are utilized in this book: • • • •

Positive obligations or prescriptive norms, which impose obligations to do something, i.e., commands. Negative obligations or prohibitive norms, which impose obligations not to do something, i.e., prohibition. Rights to not do something, i.e., exemptions. Rights to do something, i.e., permissions.9

For purposes of the WTO analyses in this book, the first question that arises is whether the trade barrier is in conflict with the “obligations” in the WTO system (with few exceptions, negative obligations). If the trade barrier is found to be in violation of an “obligation,” the second question that arises is whether there is a permission to do it anyway, i.e., an exception. The exceptions are often “conditional rights,” which means that in order to benefit from a “right,” certain requirements must be met; hence, the “conditional right” imposes certain “obligations.”10 In international environmental law, the “obligation” may, however, be an “obligation” to create a trade barrier (i.e., a “positive obligation”) in order to comply with a norm laid down in a MEA. This illuminates how norms in the WTO system and norms in other sub-systems of public international law most frequently are uncoordinated, but each sub-system comprises individual norms to abide by. Moreover, the sub-systems do not relate to each other. It is thus irrelevant for the establishment of a violation of an obligation under the WTO system whether the violation arose out of an obligation in another instrument outside the WTO. It may, however, influence the judgment of the exception; i.e., it may

9 See PAUWELYN, supra note 8, at 158–59, where he enumerates and refers to Kelsen for these four categories. See also KELSEN, supra note 3, at 6–8. 10 For an expanded analysis of the four categories in WTO context, see PAUWELYN, supra note 8, at 160.

24 • The WTO, Animals and PPMs

be a good argument to get the exception successfully invoked.11 It is equally irrelevant for the judgment of whether a norm in a MEA is violated, whether the norm is in violation of a norm in the WTO system, unless, of course, the two treaties in issue explicitly relate to each other. 3

THE BILATERAL NATURE OF INTERNATIONAL LAW

As a consequence of the phenomenon that each state acts in its own self-interest, the vast majority of the international rules confer “rights and obligations” in “pairs of states” (also referred to as the bilateral, synallagmatic or reciprocal nature of international law).12 This means that even if an obligation is owed to all states in abstracto, in application of the rule in concreto the situation becomes a bilateral issue.13 More specifically, when a violation of a norm occurs, it is only the injured state that has a procedural right (also referred to as standing), regardless of the erga omnes character of the norm in abstracto. In other words, the erga omnes character of a norm is not “accompanied by a procedural right belonging to all members of the international community.”14 Along with the procedural right, the injured state can claim all remedies known in international law: cessation, non-repetition, reparation and counter-measures (also referred to as retaliation).15 The WTO system is bilateral in nature, and WTO cases do hence not involve the entire membership, but only the injured party(ies) bringing cases under the three possible categories of GATT Article XXIII:1(a)–(c); as well, the “enforcement” reserved to the injured party can, under certain circumstances, “suspend the concessions.”16 In relation to “remedies” and 11

See Chapter 9 on these analyses.

12

See CASSESE, supra note 4, at 13–14.

13

See id. at 14

14

See id.

Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission at its 53d Session in 2001, available at http://www.un.org/law/ilc [hereinafter 2001 ILC Draft Articles], Articles 30, 31, 49. 15

16 See the General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S. 194 [hereinafter GATT 1947]; the General Agreement on Tariffs and Trade, Apr. 15, 1994, WTO Agreement Annex 1A, Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 1125 (1994) [hereinafter GATT 1994]; Understanding on Rules and Procedures Governing the Settlement of Disputes, Apr. 15, 1994, WTO Agreement, Annex 2, Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 1125 [hereinafter DSU], Article 23 for the remedies in the WTO; DSU Article 22 for the issue of suspending concessions. For an extended analysis of the rules of the DSU in comparison

Public International Law • 25

“enforcement,” it should be noted that the WTO members have contracted out of the “free” choice of remedies and are bound by the rules of the DSU. 4

ERGA OMNES OBLIGATIONS

In contrast to the above-described bilateral feature of rights and obligations are a group of obligations owed to the world community erga omnes or to signatories to a multilateral treaty erga omnes partes (both types of obligations are also referred to as community obligations or integral obligations or multilateral obligations).17 These community obligations are not only reciprocal but also erga omnes or erga omnes partes in the manner that each member of the world community has a procedural right to respond to a breach.18 According to Cassese, the community obligations possess five unique features: 1. 2. 3.

4.

5.

They are obligations that protect fundamental values such as human rights and the environment; They are obligations erga omnes or erga omnes partes; They are attended by a correlative right belonging to every member of the world community or every signatory to the multilateral treaty in question; The right may be exercised by any member of the world community or signatory to a treaty regardless of whether the country is an aggrieved or injured party; and The right is exercised on behalf of the world community or group of contracting states to safeguard the fundamental value in issue.19

The reactions to such breaches can, however, according to Cassese, for the majority, solely amount to diplomatic pressure.20 What he means about “solely diplomatic pressure” is probably that not all remedies can be sought. This is explained in the 2001 ILC Draft Articles. According to these articles, it is evident that the procedural right can be exercised on behalf of all states, as well as on behalf of the individual “injured” state.21 There is, with the general international law on remedies, in particular on the difference in countermeasures, see PAUWELYN, supra note 8, at 218–36. For a detailed analysis of why most WTO obligations are bilateral in nature, that, inter alia, analyzes whether inter se derogation is possible, see PAUWELYN, supra note 8, at 52–88. 17

See, e.g., CASSESE, supra note 4, at 15–18; PAUWELYN, supra note 8, at 52–53.

18

See CASSESE, supra note 4, at 16.

19

Id. at 16.

20

See id. at 17.

21

2001 ILC Draft Article 42.

26 • The WTO, Animals and PPMs

however, a difference in remedies for the “injured” state and the rest of the world community; i.e., the injured state can claim all remedies,22 whereas a state acting “on behalf” of the “International Community” or a “group of states” in the “collective interest” of them, cannot claim counter-measures.23 These distinctions are important to understand later on in the analysis of coercive trade measures. In that analysis (see Chapter 9), it is clarified whether a coercive trade measure can be characterized as a counter-measure in response to, e.g., a violation of an erga omnes obligation to protect endangered species—if such an erga omnes obligations can be said to exist. For an overview: Bilateral Rights and Obligations Country A

obligation owed bilaterally

Country B

When country A violates its obligation, it is solely the injured country that has the procedural right and right to claim remedies against country A—in this example, the injured country is B:

Country A

procedural right and right to seek ALL remedies

Country B

Erga Omnes Rights and Obligations Country A

obligation owed erga omnes

ALL

When country A violates its obligation, it is solely the injured country that has the procedural right and right to claim all remedies against country A—in this example, the injured country is B: Country A

procedural right to claim all remedies

Country B

Country A

procedural right, but no countermeasures

ALL

22

2001 ILC Draft Articles 30, 31 and 49.

2001 ILC Draft Article 48. For further analysis, see, e.g., PAUWELYN, supra note 8, at 63–69; OLE SPIERMANN, MODERNE FOLKERET 120–26 (Jurist- og Økonomforbundets Forlag, 2d ed., 2004). 23

Public International Law • 27

5

JUS COGENS

The concept of jus cogens is introduced at this stage of the book in order to demystify the importance of it, as well as its relation, or lack of such, to community obligations. Jus cogens is a kindred concept to community obligations, because they both are based on the notion of fundamental values.24 The effect of these peremptory norms is that a treaty is null and void, if it conflicts with a peremptory norm.25 Moreover, it can only be deviated from if a subsequent norm equally attains the status of jus cogens.26 Identifying, however, what falls within the area of rules that are part of jus cogens is difficult because the rule only describes the effect but not the sphere within which these rules are found. Very broad categories were identified by Cassese as probably being rules relating to: prohibition of aggression; prohibition of colonies; prohibition of slavery, genocide and apartheid; prohibition of massive pollution of the seas and the atmosphere, etc.27 Jus cogens represents a sort of “hierarchy” in international law, where no hierarchy otherwise exists, but is otherwise not important to the analyses in this book because in order to make use of jus cogens, there must be the very special circumstances of a treaty being declared null and void if against jus cogens, which only can be done if all parties to the treaty are also parties to the VCLT.28 Keep in mind that this book focuses on trade measures taken by individual states and hence does not focus on illegal treaties. It should lastly be noted that the “hierarchy” thought, among norms in jus gentium, nevertheless gives jus cogens a “meta legal” or preventive effect in the sense that certain values appears of such vital interest that no treaties are created to infringe those norms.29 6

SOURCES IN JUS GENTIUM

Historically, the two primary sources were treaties and customs, which were considered to be based on the understanding that states were only bound by norms they consented to.30 This understanding builds on the 24

See CASSESE, supra note 4, at 16.

25 See Vienna Convention on the Law on Treaties, concluded at Vienna, May 23, 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679 (1969) [hereinafter VCLT], Article 53. 26

See VCLT Article 53.

27

See CASSESE, supra note 4, at 141.

28

See id. at 142.

29

See id. at 144.

30

See id. at 177.

28 • The WTO, Animals and PPMs

notion that customs also rested on consent, due to the requirement of opinio juris.31 When dealing solely with the area that is not defined as customary international law, it is important to remember that only the states that are parties to a treaty are bound by its rules. All states that have entered into a binding agreement, i.e., hard law, are obliged to comply with the rules under the concept of pacta sunt servanda.32 Conversely, many instruments in public international law are soft law. Soft law instruments are included in this book even if it, for the most part, only can be considered empiric material describing the context of a subject or a political intension—a de lege ferenda statement.33 The approach to sources in jus gentium is traditionally normative, as they appear to be described clearly in the Statute of the International Court of Justice (ICJ) Article 38.34 The normative approach to legal sources is here to be understood as only those norms, which are laid down in clearly defined sources, can be decisive for any future decision by the courts; i.e., by having clearly defined sources, the stage of the laws can thus be described.35 Conversely, the descriptive approach focuses on what the courts actually do and thus, traditionally, include more sources when describing the current stage of the law.36 Although most textbooks regarding international law make ICJ Article 38 a starting point, this normative approach to the sources is, however, disputed and it is widely accepted that a less formalistic view on the sources, i.e., a more descriptive approach, is the more practical approach.37 31 But see SPIERMANN, supra note 23, at 63–66, 75, who analyzes the inherent flaws of the concept of opinio juris. It could perhaps then be argued that the concept serves more as a justification to legitimize rules, because it is so difficult to verify. See id. at 76. 32

See VCLT Article 26. See also SPIERMANN, supra note 23, at 344–47.

33

See OLE ESPERSEN ET AL., FOLKERET 39–42 (Christian Ejlers’ Forlag, 2d ed. 2003).

See Statute of the International Court of Justice, concluded at San Francisco June 26, 1945, 1978 Y.B.U.N. 1052, 1946 U.K.T.S. 67, 832 U.S.T.S. 993 [hereinafter ICJ Statute]. 34

35

Definition of the two different approaches to sources is based on JENS EVALD, RET16–18 (Jurist- og Økonomforbundets Forlag,

SKILDERNE OG DEN JURIDISKE METODE

1997). 36

See id.

37 See, e.g., SPIERMANN, supra note 23, at 36, who posits that: “Any lawyer who has tried to apply the law to a concrete case or who merely has studied a decision by the ICJ will know that legal issues are not solved well structured list of legal sources, regardless

Public International Law • 29

The Statute of the ICJ Article 38 reads as follows: 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto. What is important for purposes of the analyses in this book, which otherwise solely focuses on the DSM of the WTO and hence not the ICJ, is the subsidiary nature of judicial decisions. This subsidiary nature is equally to be found in the DSM of the WTO, albeit it can be argued that a de facto stare decisis tradition is prevalent in the WTO.38 It should, moreover, be noted that the ICJ Article 38 solely relates to the applicable law before the ICJ, and this article has no counter-part in the text of the DSU. According to the text of the DSU, the DSM of the WTO has jurisdiction over claims brought under the “covered agreements,” but there is no clause prescribing what law to apply.39 It is clear that there is an obligation to hear those claims brought under the “covered agreements,” but it is unclear whether other laws also can be applied. When dealing with trade measures motivated by environmental or animal welfare concern (or another non-trade concern), it therefore becomes important whether other sources, such as a treaty to protect endangered species, could be considered part of the applicable law in a hypothetical case in the WTO. These issues are analyzed in Chapter 9. of whether the lists consist of theories or a compilation of citations or perhaps merely utilizes the multitude of case law” (author’s translation from Danish). See also PAUWELYN, supra note 8, at 90, who notes that apart from the sources enumerated in ICJ Article 38(1)(a)–(d), two new sources have arisen; namely unilateral acts and acts by IGOs. 38

See Chapter 6.

39

See Chapter 9.

30 • The WTO, Animals and PPMs

7

INTERPRETATION OF THE SOURCES BY THE “COURTS”

The sources in international law need interpretation by the “court” in issue. Style of interpretation, however, depends on what “court” is examining the issue. Due to the fact that this book only deals with the DSM of the WTO, the issue of interpretation is deferred to Chapter 8. 8

ENFORCEABILITY OF NORMS

In jus gentium, the lack of a “world court” with mandatory, binding and enforceable DSM has the consequence of making analysis of enforceability of norms complicated: different sub-systems in international law have different DSMs, each with a special set of applicable laws and each with a particular scope of substantive jurisdiction. As eloquently posited by Pauwelyn: it could be argued that there is a “two-class society” between those rules of international law under which claims can be judicially enforced and those where this is not the case. In that sense, rules of international law may, indeed, operate on two levels: the first and more general level being that of the entire corpus of public international law where all rules of international law freely interact; the second and more specific level being that of a court of international law with jurisdiction to enforce only a limited number of claims under specified rules.40 As the focus of the analyses in this book is on the WTO as a sub-system, Chapter 6 gives a special introduction to the DSM in the WTO and its special “enforcement mechanism.”

40

PAUWELYN, supra note 8, at 460.

CHAPTER 3

SUSTAINABLE DEVELOPMENT

1

A SHIFT IN POLICY DIRECTION

Chapter 1 outlined the context of the topic of the analyses in this book, i.e., the era of globalization and the policy of sustainable development. Chapter 2 outlined the system in which the policies are carried out, i.e., in public international law. This chapter gives an insight into what sustainable development means. Moreover, the chapter gives a historical perspective of issues relating to natural resources. Natural resources are important to understand, because animals located in nature (i.e., wild animals) are considered natural resources. It may not come as a surprise that before the invention of sustainable development, i.e., the linking of economic and social development with environmental protection, these issues were treated separately. Essentially, environmental issues arose in the international level in 1972 with the advent of the Stockholm Conference on Human Environment.1 Before this date, the attempts to protect the environment and the focus thereon were limited and sporadic.2 The policy of economic development, thus, preceded environmental policies, which is reflected in the Preamble of GATT3 that illuminates how the economic policies were envisaged through trade: Recognizing that their relations in the field of trade and economic endeavour should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, developing the full use of the resources of the world and expanding the production and exchange of goods [emphasis added]. At a glance, the Preamble does not reveal any surprises; the Preamble is from a treaty from 1947 when the concept of sustainable development was not yet invented. It is, however, important to focus on the phrase “full use of the resources,” which casts light on the fact that the policy of economic 1 See PATRICIA BIRNIE & ALLAN BOYLE, INTERNATIONAL LAW & THE ENVIRONMENT 37 (2d ed. 2002). 2

See id.

3

In this context, being both the trade agreement and the de facto organization until

1995.

31

32 • The WTO, Animals and PPMs

development included utilizing the natural resources to the greatest extent possible with no reflection on the environmental impact. The shift to sustainable development as the prevailing policy is reflected in the Preamble of the WTO from 1995: Recognizing that their relations in the field of trade and economic endeavour should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, while allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development, [emphasis added]. 2

SOVEREIGNTY OVER NATURAL RESOURCES

One of the key issues to understand in the analyses in this book is the issue of sovereignty over natural resources within the jurisdictional limits of a country. The historical antecedents of this norm is most importantly found in the era from 1962 onwards, where the developing countries pushed for highlighting their development concerns, which led to the adoption of a number of U.N. General Assembly resolutions.4 The resolutions essentially clarified that these, often, new states had the right to adopt the economic and social systems, which they deemed appropriate for their development—and that they had full sovereignty over their natural resources, which was clarified to ensure that they would not be exploited by a colonial power.5 The notion of full sovereignty over natural resources 4 For an explanation of the General Assembly resolution’s soft law status, see, e.g., OLE ESPERSEN ET AL., FOLKERET 369 (Christian Ejlers’ Forlag, 2d ed. 2003). For further description of the process from 1962 and onwards, see BIRNIE & BOYLE, supra note 1, at 40, 138–39. 5 See, e.g., Resolution on Permanent Sovereignty over Natural Resources, adopted by the U.N. General Assembly, Dec. 19, 1973. G.A. Res. 3171, U.N. GAOR, 28th Sess., Supp. No. 30, at 52, U.N. Doc. A/9030 (1973), 13 I.L.M. 238 (1974); Declaration on the Establishment of a New Economic Order, adopted by the U.N. General Assembly, May 1, 1974. G.A. Res. 3201 (S-VI), 6 (SPECIAL) U.N. GAOR, 6th Spec. Sess. Supp. No. 1, at 3, U.N. Doc. A/9559 (1974), 3 I.L.M. 715; Charter of Economic Rights and Duties by States, adopted by the U.N. General Assembly, Dec. 12, 1974. G.A. Res. 3281, U.N. GAOR, 29th Sess., Supp. No. 31, at 50, U.N. Doc. A/9631 (1975), 14 I.L.M. 251. See also Giorgio Sacerdoti, The Source and Evolution of International Legal Protection for Infrastructure Investments Confronting Political and Regulatory Risks, 8 available at Centre for Energy, Petroleum & Mineral Law & Policy, Internet Journal, Vol. 5, Article 7, http://www. dundee.ac.uk/cepmlp (1999).

Sustainable Development • 33

was not a “new” policy, but merely a clarification of the sovereignty of the newly created states in a post-colonial world.6 The notion of full sovereignty over natural resources may, however, nowadays be limited. Whether there are limits attached hereto in relation to, e.g., “killing the last panda” depends on whether there is an obligation to protect, e.g., endangered species. These issues are analyzed further in Chapter 4. 3

SUSTAINABLE DEVELOPMENT

Nowadays, the concept of sustainable development and environmental protection are “mantras” that have a positive tone to them. The mantras are widely used in the international arena, perhaps to create a better image and perhaps sometimes without truly understanding what these words indeed mean. 3.1 The History of Sustainable Development The idea of linking environmental concerns to economic and social development can be traced back to the Stockholm Conference on Human Environment in 1972. Although the concept was not yet called “sustainable development,” the link between economic and social development and environmental protection was expressed in Principle 8 of the Stockholm Declaration. The conference did not lead to significant changes in development policies, i.e., including environmental concerns in development policies.7 What should be noted regarding this conference is that it was convened to discuss human environment. A change in development policies was therefore not even signaled. The term “sustainable development” was utilized in the Brundtland Report in 1987 where it, rather revolutionary, called for a new approach in economic development.8 The concept of sustainable development did not become the leading environmental policy until the Rio Conference on Environment and Development in 1992 and is thus best known from this conference.9 6

Recalling that sovereignty means that each country may decide its own policies.

7

See BIRNIE & BOYLE, supra note 1, at 38–41.

See Experts Group on Environmental Law of the World Commission on Environment and Development, Legal Principles for Environmental Protections and Sustainable Development, adopted by the WCED Experts Group on Environmental Law, Aug. 4, 1987, U.N. Doc. WCED/86/23/Add.1 (1986) [hereinafter Expert Group]; OUR COMMON FUTURE, WORLD COMMISSION ON ENVIRONMENT AND DEVELOPMENT [hereinafter the BRUNDTLAND REPORT] (1987). 8

9

See BIRNIE & BOYLE, supra note 1, at 41; Rio Declaration on Environment and

34 • The WTO, Animals and PPMs

The Rio Conference was a success, because more than 100 heads of state from both developing and developed countries participated and adopted the policy of sustainable development; this solidarity is often referred to as the “spirit of Rio.”10 The reason for the high numbers of participants is most likely that the developing countries realized that by addressing environmental issues, they had a better option for pressuring the developed countries into further commitments in the economic area.11 The latest global conference, relevant to the concept of sustainable development, was the World Summit on Sustainable Development in Johannesburg in 2002.12 3.2 The Substance of Sustainable Development In negotiations where the representatives disagree, the result, which stated that all the involved parties had achieved their goals, is often a text that is, at best, ambiguous. The concept of sustainable development resembles this scenario. A clear definition does not exist.13 It should, however, be noted that the most frequently utilized phrase cited to explain the concept is laid down in Rio Declaration Principle 3: “The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.”14 3.2.1

Future Generations

The Stockholm Declaration Principle 1 states: “Man has the fundamental right to freedom, equality and adequate conditions of life, in an

Development, adopted by the U.N. Conference on Environment and Development (UNCED) at Rio de Janeiro, June 13, 1992, U.N. Doc. A/CONF.151/26 (vol. I), 31 I.L.M. 874 (1992) [hereinafter the Rio Declaration]. 10

See, e.g., BIRNIE & BOYLE, supra note 1, at 43.

See, e.g., KIM CARSTENSEN ET AL., FRA RIO TIL JOHANNESBURG 22–35 (Mellemfolkeligt Samvirke og 92–gruppen, 2002). 11

12 See Report adopted by the World Summit on Sustainable Development, including the Johannesburg Declaration on Sustainable Development (From Our Origins to the Future) [hereinafter Johannesburg Declaration], available at http://www.johannesburgsummit.org. 13 See, e.g., BIRNIE & BOYLE, supra note 1, at 44–47; PETER PAGH, MILJØ ANSVAR EN RET FOR HVEM? 101–12 (Jurist- og Økonomforbundets Forlag, 1998); Geoffrey Hall, Markets and Sustainability, in ENVIRONMENTAL LAW, THE ECONOMY, AND SUSTAINABLE DEVELOPMENT, 410, 410 (Richard L. Revesz et al. eds., 2000). 14

See also PAGH, supra note 13, at 98.

Sustainable Development • 35

environment of quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.” Referencing to future generations is, however, not a novelty, but was equally utilized in the 1946 International Convention for the Regulation of Whaling (ICRW).15 What was a novelty was the reference to future generations in relation to an “overall” framework that also included development policies. The Brundtland Report described the substance of the reference to future generations as: “Humanity has the ability to make development sustainable—to ensure that it meets the needs of the present without compromising the ability of future generations to meet their own needs.”16 The Rio Declaration described it as: “The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.”17 In short, it could be said that there are aspects of intergenerational equality and intragenerational equality. As for intragenerational equality (i.e., equality between the generations living at the same time), The Stockholm Declaration did not invent the concept. Development policies have been in place before Stockholm, and, until this date, we still have immense poverty in many parts of the world. This was equally recognized in the Rio Declaration Principle 5: “All States . . . shall cooperate in the essential task of eradicating poverty . . . in order to decrease the disparities in standards of living and better meet the needs of the majority of the people in the world.” As for the intergenerational equality (i.e., equality between our generations and those to come in the future), there is no clear answer to what future generations may or may not need, e.g., non-renewable natural resources like gas, coal and oil. Thus, the policy is difficult to carry out. The questions posed could, e.g., be: is it acceptable to use x-amount of oil this year as opposed to y-amount? Issues relating to natural resources, ecosystems and biodiversity could, however, be regulated in separate agreements where “limits” could be agreed upon, because these resources, to a certain, extent are renewable, as long as we do not kill all the plants and animals. 15 See International convention of the Regulation of Whaling, Washington Dec. 2, 1945, [hereinafter ICRW], available at http://www.iwcoffice.org; PAGH, supra note 13, at 98, n.19, where he explains that the expression was utilized by the U.S. National Conservation Report dating back to 1909. 16

See BRUNDTLAND REPORT, supra note 8, at 8.

17

See Rio Declaration, Principle 3.

36 • The WTO, Animals and PPMs

3.2.2

Balancing the Three Elements

The three elements of sustainable development were initially phrased in the Stockholm Declaration Principle 8: “Economic and social development is essential for ensuring a favorable living and working environment for man.” How to balance the three elements was, however, not clarified—albeit certain other principles shed some light on the issue. Principle 10 stated: “For the developing countries, stability of prices and adequate earnings for primary commodities and raw materials are essential to environmental management since economic factors as well as ecological processes must be taken into account.” How to take both economic and ecological factors into account was not defined, except that “[t]he environmental policies of all States should enhance and not adversely affect the present or future development potential of developing countries.”18 The circle is hence closed, by recalling the famous Rio Principle 3— without, however, having encountered clearly defined norms—which can illuminate how to balance the three elements: “The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.” That the environment should not diminish economic development prospects is a noble thought, but what if it would be impossible to reach a certain goal of environmental protection without diminishing economic development? Does the economic development then take precedence over environmental policies? One thought in the Stockholm Declaration is that resources should be made available to the developing countries in order to fund the incorporation of environmental safeguards.19 In the Rio Declaration, this is called the “global partnership,” where “States have common but differentiated responsibilities.”20 In today’s world, a country cannot be forced to fund another country’s environmental policies—unless it committed itself thereto in a treaty. The thought of funding for developing countries thus remains a possible option for developed states but nevertheless not an obligation in a legal sense. 18 See Stockholm Declaration of the United Nations Conference on Human Environment, adopted by the U.N. Conference on the Human Environment at Stockholm, June 16, 1972, U.N. Doc. A/CONF.48/14/Rev.1 at 3 (1973), U.N. Doc. A/CONF.48/14 at 2–65, and Corr.1 (1972), 11 I.L.M. 1416 (1972) [hereinafter Stockholm Declaration], Principle 11. 19

See Stockholm Declaration Principle 12.

20

See Rio Declaration, Principle 7.

Sustainable Development • 37

Regarding natural resources, biodiversity and ecosystems, “[s]tates have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies.”21 The Brundtland Report acknowledged that even if both developmental and environmental concerns are taken into account, “[e]very ecosystem everywhere cannot be preserved intact.”22 The report also acknowledged that once a species is extinct, it is non-renewable and hence gone forever.23 The acknowledgment of the possible extinction of species did not lead to a clear-cut guideline. The Brundland Report merely noted that: “all species should be safeguarded to the extent that it is technically, economically, and politically feasible.”24 It must thus be concluded that if it is not technically, economically or politically feasible, the principles of sustainable development do not preclude or outlaw that the last panda is eaten by, e.g., a starving human being in a disadvantaged region. 3.2.3

International Cooperation

A third aspect of the substance of sustainable development is that there is a call for international cooperation on two levels: multilateral solutions are clearly preferred,25 but among the multilateral institutions/organs cooperation should also be sought, i.e., better coordination among IGOs and between individual treaties.26 Cooperation among multinational institutions is currently a recognized policy in the WTO. In the Preamble to the Doha Ministerial Declaration, the ministers agreed that: “We welcome the WTO’s continued cooperation with United Nations Environment Program (hereinafter UNEP) and other inter-governmental environmental organizations. We encourage efforts to

21 See Rio Declaration, Principle 2, which is a restatement of Stockholm Declaration, Principle 21. 22

See BRUNDTLAND REPORT, supra note 8, at 45.

23

See id.

24

See id. at 148.

See, e.g., Stockholm Declaration, Principles 11, 24; Expert Group, Article 8; Rio Declaration, Principles 5, 7, 12, 27; Johannesburg Declaration, Annex paras. 31–33 and Declaration on Implementation, paras. 151–157. 25

26 See, e.g., Stockholm Declaration Principles 11, 25; BRUNDTLAND REPORT, supra note 8, at 9–11, 84, 310–19; Johannesburg Declaration, Resolution on Implementation paras. 151–157.

38 • The WTO, Animals and PPMs

promote cooperation between the WTO and the relevant international environmental and developmental organizations.” 3.2.4

Sustainable Development and International Trade

The Rio Declaration Principle 12 addresses, in particular, the topic of this book, namely trade related environmental measures: States should cooperate to promote a supportive and open international economic system that would lead to economic growth and sustainable development in all countries, to better address the problems of environmental degradation. Trade policy measures for environmental purposes should not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade. Unilateral actions to deal with environmental challenges outside the jurisdiction of the importing country should be avoided. Environmental measures addressing transboundary or global environmental problems should, as far as possible, be based on an international consensus. This principle is clearly drafted with a view to the prevailing political opinions about how to handle trade-related environmental measures in the WTO at that point in time. Firstly, it should be noted that the chapeau of GATT Article XX contains identical language: Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction of international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures. Secondly, the principle refers to a discussion on trade measures, which affects other countries outside the jurisdiction of the importing country. This discussion arose during and after the advent of the Tuna cases27 in the GATT, where the United States coerced its trading partners into utilizing dolphin-friendly fishing methods if they wanted to export their tuna to the United States. At that particular point in time (the beginning of the 1990s), the prevailing policy was that these types of measures were illegal in the

27 See United States—Restrictions on Imports of Tuna, DS21/R- 39S/155, Report of the Panel, Sept. 3, 1991, unadopted [hereinafter Tuna I] available at 1991 GATT PD LEXIS 1; United States-Restrictions on Imports of Tuna, DS29/R, Report of the Panel, June 16, 1994, unadopted [hereinafter Tuna II], available at 1994 GATT PD LEXIS 7.

Sustainable Development • 39

GATT system. Those coercive-type trade measure are not per se considered illegal under the GATT; case law has developed the issue after the advent of the WTO, and this probably devalues Principle 12 substantially. For further analysis on the issue of coercive trade measures, see Chapter 9. 3.3 Legal Status of Sustainable Development Technically, the Stockholm Declaration, the Brundtland Report, the Rio Declaration and the Johannesburg Declaration are all soft law instruments, i.e., not legally binding instruments.28 The Brundtland Report describes the concept of sustainable development as a new policy, i.e., de lege ferenda: “The concept of sustainable development provides a framework for the integration of environmental policies and development strategies[,]”29 where “policy makers guided by the concept of sustainable development will work to assure that growing economies remain firmly attached to their ecological roots.”30 The lack of a precise definition of the substance of sustainable development underscores that the Brundtland Report viewed the concept as a call for change in overall policies with no specific legal obligations attached to it, but as a policy to be followed when drafting and negotiating legal obligations in the future. The Brundtland Report puts it as follows: “Interpretations will vary, but must flow from a consensus on the basic concept of sustainable development and on a broad strategic framework from achieving it.”31 The Brundtland Report, in essence, calls for—on the international level—governments to negotiate binding legal instruments to assure the policy of sustainable development is carried out.32 In Johannesburg, the Johannesburg Declaration reaffirmed that sustainable development is a policy—de lege ferenda—that should be implemented by the world community: “We recognize that sustainable development requires a long-term prospective and broad-based participation in policy formulations, decision making and implementation at all levels. As social partners, we will con28 But cf. PAGH, supra note 13, at 99–101, where he explains that sustainable development cannot be said to be a legally binding norm or principle, but that it—due to its utilization by various courts—has certain legal implications. 29

See BRUNDTLAND REPORT, supra note 8, at 40.

30

See id.

31

See id. at 43.

32

See, e.g., id. at 330.

40 • The WTO, Animals and PPMs

tinue to work for a stable partnership with all major groups, respecting the independent, important roles of each of them.”33 As illuminated above, the legally binding WTO Agreement has incorporated the concept of sustainable development in its Preamble as envisaged by the drafters of the soft law instruments. The WTO Agreement, being a hard law instrument in jus gentium, is thus a reflection of the world leaders’ commitment to incorporate the concept of sustainable development.

33

See Johannesburg Declaration, para. 26.

CHAPTER 4

THE ENVIRONMENT—BIODIVERSITY Worms have played a more important part in the history of the world than most persons would at first suppose.1 1

INTERNATIONAL ENVIRONMENTAL LAW

This chapter analyzes how, why and in what way animals are protected in international environmental law. The chapter should, however, not be considered to be an exhaustive description of all areas concerning protection of animals in international environmental law, because it attempts to focus on issues that, in one way or the other, are trade related. This chapter may also be helpful for other areas of environmental protection than biodiversity. For readers working with a different area of the trade-environment debate, the general ideas laid down in this chapter are also applicable to a broader range of environmental issues. However, before venturing into the substantive analysis of biodiversity, two issues regarding international environmental law, should be noted: 1.

2.

There is no World Environmental Organization administering a set of treaties in which norms for environmental protection are laid down, except that many initiatives derive from the U.N. Environmental Program (UNEP). Consequently, norms for environmental protection in jus gentium are to be found in numerous agreements. There is no single definition of the “environment.” 2 None of the current treaties or declarations in the area gives a definition.3 Furthermore, exercises that includes searching for a definition of the word in dictionaries does not bring any further

1 CHARLES DARWIN, THE FORMATION OF VEGETABLE MOULD THROUGH THE ACTION OF WORMS WITH OBSERVATIONS OF THEIR HABITS ch. VII (1881). 2 See PATRICIA BIRNIE & ALLAN BOYLE, INTERNATIONAL LAW & THE ENVIRONMENT 3–4 (2d ed. 2002); PETER PAGH, MILJØ ANSVAR EN RET FOR HVEM? 13–17 (Jurist- og Økonomforbundets Forlag, 1998). 3

See BIRNIE & BOYLE, supra note 2, at 3.

41

42 • The WTO, Animals and PPMs

clarification to the issue.4 The EC Directive concerning the placing of plant protection products on the market, however, offered a definition of the “environment” as being: “water, air, land, wild species of fauna and flora, and any interrelationship between them, as well as any relationship with living organisms.”5 This may, nevertheless, not be a definition that covers all environmental issues—and it is not binding on non-EU countries or for other directives. When defining the environment by looking at the coverage area in the major agreements, the environment, by and large, covers protection of natural resources, biodiversity, endangered and migratory species, Antarctica, the oceans, the atmosphere, the climate, the ozone layer, cultural and national heritage and ecosystems, including the non-living elements of the environment in an ecosystem.6 Moreover, treaties have been developed to specifically deal with dangerous substances that can harm both the environment and human health.7 The purpose of defining the environment in this book is not for the definition itself but to understand what motivates the environmental protection and hence what motivates the environmental protection of animals. This analysis will also be utilized to distinguish between environmental protection of animals and animal welfare protection. 2

THE “ENVIRONMENT” IN SUSTAINABLE DEVELOPMENT

The starting point for understanding the “environment” is in the concept of sustainable development, because one of the three prongs in the concept is environmental protection. The following is a short outline of the concept of “environment” and environmental protection as outlined in the declarations defining sustainable development. 4

See id. at 3; PAGH, supra note 2, at 13.

5

See Council Directive 91/414/EEC, 1991 O.J. (L 230) 1, Article 2(12).

6

See BIRNIE & BOYLE, supra note 2, at 4.

7 See, e.g., the three UNEP Conventions: Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and Their Disposal, adopted in Basel, Mar. 22, 1989, entered into force May 5, 1992, U.N. Doc. UNEP/WG190/4; 28 I.L.M. 657 (1989) [hereinafter Basel Convention]; Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, adopted in Rotterdam, Sept. 10, 1998, entered into force Feb. 24, 2004, available at http://www.pic.int [hereinafter PIC Convention]; Stockholm Convention on Persistent Organic Pollutants, adopted in Stockholm, May 22, 2001, entered into force May 17, 2004, 40 I.L.M. 532 (2001), available at http://www.pops.int [hereinafter POPs Convention].

The Environment—Biodiversity • 43

Dating back to the Stockholm Declaration, natural resources are defined as part of the environment. Natural resources include, according to the declaration, air, water, land, flora, fauna and ecosystems.8 How to preserve natural resources depends on whether they are renewable or non-renewable.9 As for pollution, this should be limited so it does not impair ecosystems.10 The Expert Group’s Legal Principles distinguished between environment and natural resources,11 but that did probably not mean that it considered natural resources as being something other than the environment. The Expert Group stressed that ecosystems should be protected, including the functioning of “the biosphere in all its diversity.”12 Moreover, biodiversity should be sustained through “conservation in their natural habitat of all species of fauna and flora, in particular those which are rare, endemic or endangered.”13 The Rio Declaration did not offer any clarification of how to define the environment. It reaffirmed the obligation to protect the environment, the integrity of the Earth’s ecosystems and natural resources, but did not define what it meant.14 The Johannesburg Declaration reaffirmed the prior declarations and referred to the suffering of “the global environment” by giving examples of loss of biodiversity, fish stocks being depleted, desertification, climate change and air, water and marine pollution.15 8 See Stockholm Declaration of the United Nations Conference on Human Environment, adopted by the U.N. Conference on the Human Environment at Stockholm, June 16, 1972, U.N. Doc. A/CONF.48/14/Rev.1 at 3 (1973), U.N. Doc. A/CONF.48/14 at 2–65, and Corr.1 (1972), 11 I.L.M. 1416 (1972) [hereinafter Stockholm Declaration], Principle 2. 9 10

See Stockholm Declaration Principles 3 and 5. See Stockholm Declaration Principle 6.

See Experts Group on Environmental Law of the World Commission on Environment and Development, Legal Principles for Environmental Protections and Sustainable Development, adopted by the WCED Experts Group on Environmental Law, Aug. 4, 1987. U.N. Doc. WCED/86/23/Add.1 (1986) [hereinafter Expert Group], Articles 2, 4, 6 and 7. 11

12

See Expert Group Article 3(a).

13

See Expert Group Article 3(b).

See, e.g., Rio Declaration on Environment and Development, adopted by the U.N. Conference on Environment and Development (UNCED) at Rio de Janeiro, June 13, 1992, U.N. Doc. A/CONF.151/26 (vol. I), 31 I.L.M. 874 (1992) [hereinafter the Rio Declaration], Principles 3, 4, 7, 14 and 23. 14

15 See Johannesburg Declaration on Sustainable Development, available at http:// www.johannesburgsummit.org [hereinafter Johannesburg Declaration], Annex para. 13.

44 • The WTO, Animals and PPMs

For purposes of this book, it does not appear necessary or even possible to come closer to a definition of the environmental prong of sustainable development; it is thus assumed to have the same, although vague, definition as the environment in international environmental law—or it could be perceived that the area of the environment protected in international environmental law is but a reflection of the environmental goals of sustainable development. 3

ENVIRONMENTAL PROTECTION OF ANIMALS

Having established that environmental protection can mean many different things and that it is not clearly defined anywhere, it appears logical to try and identify whether environmental protection of animals can be defined. In determining the substance of environmental protection of animals, it is essential to understand that animals are natural resources and common heritage. Animals are often called “fauna” and plants “flora.” Flora and fauna protection often goes hand in hand; they are living natural resources, part of ecosystems and they contribute to biodiversity. Flora and fauna are thus a part of what is broadly considered the environment. But even if flora and fauna are part of the environment, they are not per se protected in a manner that gives all flora and fauna a right to life as individual specimens. For purposes of the analyses in book, it is important to find certain guidelines, which illuminate whether the protection of animals stem from environmental concerns or animal welfare concerns. The general assumption is that protection of animals as natural resources within the realm of international environmental law is species protection, i.e., not protection of the individual specimen. In other words, species protection is protecting the survival of the species, not the general welfare of it, or protection of non-endangered species. Whereas, if the protection is of specimens of a species, which otherwise are not endangered or if the protection aims directly at the welfare of the individual specimen, this type of protection is defined as motivated by an animal welfare concern.16 The exercise is, however, not always simple. One example of practical difficulty is that legislation is enacted all over the world under headings of environment, agriculture, religion, etc., without any concern for establishing a clear dividing line between what is environmental protection of animals and what is animal welfare protection.

16

See also PAGH, supra note 2, at 113.

The Environment—Biodiversity • 45

It should, moreover, be noted—on a definitional note—that living natural resources often are distinguished from non-living natural resources. Non-living resources are non-renewable, such as coal, oil, gas, etc.17 Living natural resources are, inter alia, animals, which are renewable; i.e., animals reproduce. Keeping this difference in mind, it is easy to understand that conservation18 of these two categories differs. Animals have certain needs that must be met in order to secure their survival: in order for, e.g., the panda to survive, it must be able to live in its (natural) habitat and not be killed or harassed in a manner that it cannot reproduce itself at a sustainable rate, whereas, e.g., oil merely needs to be pumped up at a slower pace.19 Moreover, non-living natural resources can only be defined as part of biodiversity if they constitute habitats or are part of ecosystems.20 Equally—on the same definitional note—conservation of living resources includes the non-living resources on which the living resources depend.21 3.1 Location of Natural Resources The location of the natural resources is an important factor for understanding the practical and legal aspects of the policies to protect natural resources. Most animals are located within the jurisdictional limits of a country, but there is, of course, the possibility that they might migrate. Moreover, most human interference with fauna takes place within the jurisdiction of sovereign states; e.g., over 90 percent of all fish caught are caught within 200 miles of the coast.22 3.1.1

Animals Located Within the National Jurisdiction

The principle of sovereignty over natural resources means that if the natural resource—living or non-living—is located within the jurisdiction of a country, this country has a sovereign right to exploit it according to its own environmental and developmental policies.23 This principle is laid down in 17

See, e.g., BIRNIE & BOYLE, supra note 2, at 137–38.

For the purposes of this book, the words “conservation,” “preservation” and “protection” are used interchangeably. For a thorough analysis of the words, see, e.g., id. at 603–04. 18

19

For a more elaborated explanation, see, e.g., id. at 548.

Oil and gas in the ground cannot be either, whereas a coral reef is both. An ecosystem is to be understood as a local or regional system of plants, micro-organisms and animals working together to survive. See id. at 547. 20

21

See id. at 548.

22

See id. at 648.

23

See, e.g., id. at 137–38; Chapter 3, supra note 5 and accompanying text. For an

46 • The WTO, Animals and PPMs

the Stockholm Declaration Principle 21, which has achieved the status of being a legally binding principle, and is recognized as one of the few customary rules in international environmental law that has been incorporated into numerous conventions.24 The legal text outlines the principle as: States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. Limitations to this rule, thus, depend on whether there is a limitation of sovereignty laid down in an international convention. Whether a customary rule qualifies the sovereignty over natural resources will be analyzed in Section 12. 3.1.2

Shared Natural Resource

Migratory animals are examples of shared resources; other examples can be coal and oil, where the boundaries for two or more countries cut through the source or rivers. The Principles on Shared Resources is the primary source of guidelines for shared resources.25 In spite of the fact that the principles are soft law, they give a good understanding of the issue. Principles 1 and 2 call for cooperation for the utilization of the shared resources and for avoidance of adverse environmental effects. It is preferable if such arrangements are laid down in bilateral or multilateral treaties. Principle 3 reiterates Stockholm Principle 21 with regard to full sovereignty over natural resources and with regard to the prohibition against harming neighboring states. 3.1.3

Natural Resources in Common Spaces: Common Property

If, however, the natural resource is located in common spaces, i.e., the high seas and superjacent airspace, these areas are not under any country’s introduction into the concepts in Roman law of res communes and res nullius, see PAGH, supra note 2, at 135–40, who categorize wild animals as res nullius, which means that nobody owns them until they are caught. 24 For discussion of its significance and legal status, see generally BIRNIE & BOYLE, supra note 2, at 109–12. 25 See Draft Principles of Conduct in the Field of the Environment for the Guidance of States in the Conservation and Harmonious Utilization of Natural Resources Shared by Two or More States, adopted by UNEP Governing Council, May 19, 1978, U.N. Doc. UNEP/IG12/2 (1978); 17 I.L.M. 1097 (1978) [hereinafter Principles on Shared Resources].

The Environment—Biodiversity • 47

jurisdiction and are thus open for exploitation by any state26 with very few limitations.27 4

LOCAL, REGIONAL AND GLOBAL ENVIRONMENTAL ISSUES

The three categories for locations of the natural resources can also be understood as follows: domestic (local) environmental problems; transboundary (regional) environmental problems, and global environmental problems. Stockholm Principle 21 lays down the fundamental legally binding principle for purposes of regional environmental damage, as well as the neighboring obligation to avoid environmental damage beyond the national borders—a rule that stems from the Trail Smelter arbitration.28 The principles on shared resources lay down the principle of coordination where allocation and utilization of natural resources are concerned. Global environmental problems cannot be solved by either a principle of not harming neighboring states or cooperation on natural resources; certain global issues require more than a regional approach. These areas are, e.g., the conservation of fish in the high seas and the protection of the ozone layer.29 One important question to ask in connection with defining whether an issue is local or global is “who is injured?” Is it the world community at large or specific countries? If the answer is the world community, such as on the issue of the ozone layer, then the issue is treated differently than if it was a regional issue. These distinctions are important not only in this section, where different types of environmental protection of animals are illuminated, but even more so in the WTO analysis in Chapter 9, Section 5.5, where, from an analytical point of view, it is important to distinguish between whether an obligation is owed erga omnes (or erga omnes partes) or bilaterally. 26 See Convention on Fishing and Conservation of Living Resources of High Seas, Apr. 29, 1958, 559 U.N.T.S. 285, Article 1; Convention of the High Seas, Apr. 29, 1959, 450 U.N.T.S. 82, Articles 1 and 2; The Antarctic Treaty, concluded at Washington, Dec. 1, 1959, entered into force, June 23, 1961, 402 U.N.T.S. 71; Treaty on Principles Governing the Activities of States in the Exploration and use of Outer Space, Including the Moon and Outer Celestial Bodies, Jan. 27, 1967, 610 U.N.T.S. 205, 6 I.L.M. 386, Articles I and II; United Nations Convention on the Law of the Sea, Dec. 10, 1982, U.N. Doc. A/CONF.62/122, 21 I.L.M. 1261 (1982) [hereinafter UNCLOS], Articles 87 and 89. 27

See, e.g., BIRNIE & BOYLE, supra note 2, at 142–43.

28

See Trail Smelter Arbitration, 33 AM. J. INT’L L. (1939).

29

See BIRNIE & BOYLE, supra note 2, at 97.

48 • The WTO, Animals and PPMs

The following is an analysis of a series of treaties that protect natural resources. 5

THE CONVENTION ON BIOLOGICAL DIVERSITY

The starting point for analyzing the specific rules laid down in treaties securing environmental protection of animals is the “umbrella” convention on Biological Diversity. Animals are a part of biodiversity, and the protection of animals therefore falls within the scope of the Convention on Biological Diversity. 5.1 Definition of Biological Diversity The Convention on Biological Diversity offers a definition of what biodiversity actually means: “‘Biological diversity’ means the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.”30 Put more simply, it is a three-fold concept consisting of: the diversity of ecosystems; the diversity of species; and the genetic diversity within species.31 Biodiversity is thus the variability of life in all its forms, levels and combinations.32 Biodiversity in its entirety is non-renewable;33 once a species is extinct, it cannot be reproduced.34 The convention defines the value or motivation behind the necessity to protect biodiversity as “the intrinsic value of biological diversity and of the ecological, genetic, social, economic, scientific, educational, cultural recreational and aesthetic values of biological diversity and its components.”35 While underscoring that the sovereignty over natural resources lies with the host country, the convention, nevertheless, states that “conservation of biological diversity is a common concern of humankind”36 (emphasis added). 30 Convention on Biological Diversity, concluded at Rio de Janeiro, June 6, 1992, entered into force Dec. 29, 1993, 31 I.L.M. 818 (1992) [hereinafter Convention on Biological Diversity], Article 2. 31 See Michael Bowman, The Nature, Development and Philosophical Foundations of the Biodiversity Concept in International Law, in INTERNATIONAL LAW AND THE CONSERVATION OF BIOLOGICAL DIVERSITY 5, 5 (Michael Bowman & Catherine Redgwell eds., 1996). 32

See BIRNIE & BOYLE, supra note 2, at 549.

33

See id. at 545.

34 I will refrain from trying to comprehend whether a species can be reproduced along the line of the dinosaurs in Steven Spielberg’s movies. 35

Convention on Biological Diversity, at Preamble.

36

Id.

The Environment—Biodiversity • 49

Whether the notion of a common concern actually qualifies national sovereignty in relation to natural resources is analyzed in Section 12.1. 5.1.1

Anthropocentric and Ecocentric Approach

To compare the different values behind environmental protection thus far, the Stockholm Declaration referred to the environment as a human right: “man’s environment . . . [is] essential to his well-being and to the enjoyment of basic human rights—even the right to life itself.”37 This thought was equally prevailing in the Expert Group’s Legal Principles for Environmental Protection and Sustainable Development that it named its Principle 1 a “Fundamental Human Right.” The Rio Declaration made a shift and “merely” placed human beings at the “center of concerns of sustainable development.”38 This was probably done in order to maintain the credibility of human rights.39 The notion of “common concern” in the Biodiversity Convention equally recognized that all humans benefit from preserving biodiversity. Finally, the Johannesburg Declaration followed the Rio Declaration’s spirit by not calling sustainable development a human right but by putting humans in the center.40 It is, however, easy to understand from the above citations that the prevailing environmental policies are anthropocentric; i.e., they are thought to benefit some human beings.41 This, to some, presents a problem in itself, because it does not necessarily recognize the “intrinsic or inherent value” of the species and the environment in general.42 On the other end of the spectrum is the notion of the ecocentric approach; and, as the name implies, this approach recognizes the value of nature itself—and not just the value it has to humans.43

37

Stockholm Declaration Preamble, at 1.

38

Rio Declaration Principle 1.

39

See PAGH, supra note 2, at 105; BIRNIE & BOYLE, supra note 2, at 255–56.

40

See Johannesburg Declaration, Annex paras. 1–7.

41

See, e.g., BIRNIE & BOYLE, supra note 2, at 5; PAGH, supra note 2, at 113.

42

See, e.g., BIRNIE & BOYLE, supra note 2, at 257.

43

See id.

50 • The WTO, Animals and PPMs

Critics of the ecocentric approach argue that it poses major analytical problems, because it transfers the legal interest in the environment to the environment itself.44 Pagh puts it as follows: If views like that are recognized, the consequence is that fish have a legal interest in avoiding pollution of the seas, that trees have a legal interest in avoiding air pollution, etc. The environment is hence not merely the subject of the legal discipline, but becomes the legal rightholder, in which case it becomes difficult to discuss human’s right to the environment.45 Further discussion of whether, e.g., animals and trees can have standing is deferred to Chapter 5, Section 1.1. It should, however, be noted that even if a policy is considered purely ecocentric in its protection of biodiversity, this must nevertheless still be “tainted” with anthropocentric values, because the “inherent” or “intrinsic” value of biodiversity probably does not extend to, e.g., salmonella or HIV. 5.2 The Convention in Context The Convention on Biological Diversity was a true child of Rio—a hard law convention with emphasis on both environment and development.46 In addition, the convention includes the notion of cooperation from the concept of sustainable development; it attempts to be the “all-encompassing” legal instrument in the environmental area in order to deal with the previous (and current) ad hoc basis in which the environment is protected in numerous specialized agreements.47 This can, however, presumably only be done if existing agreements are transferred to the convention, which appears unlikely—but it can be done for other agreements concluded in relation the convention. One thought is that the convention could become the “organizing” concept in bringing existing agreements into closer relation with each other.48 In connection with being the “organizer,” the convention is an 44

See PAGH, supra note 2, at 112.

45 Id. at 113–14 (author’s own translation from Danish). See also id., who enumerates the difference of approaches in American law and the Nordic countries. 46 See, e.g., Convention on Biological Diversity, at Preamble; KIM CARSTENSEN ET AL., FRA RIO TIL JOHANNESBURG, 54–55 (Mellemfolkeligt Samvirke og 92-gruppen, 2002) [hereinafter CARSTENSEN ET AL.]; BIRNIE & BOYLE, supra note 2, at 568. 47

See BIRNIE & BOYLE, supra note 2, at 568–69.

48

See id. at 571.

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“umbrella” or “framework” convention, which means that it states overall goals to be carried out in separate agreements or protocols, as well as in national laws.49 A major problem, however, in this attempt to create an allencompassing convention is that the United States has signed it but not ratified it.50 Some of the reasons why the United States chose not to ratify the convention were that it had too restrictive intellectual property rights rules, which favored the developing countries in a disproportionate way, and that cows and sheep are considered alien species.51 A global convention not ratified by the only superpower in the world clearly operates within certain limits—even with 188 parties.52 5.3 Hard Law Norms The Convention on Biological Diversity does not go much into detail regarding how to protect the animals. This evidences its scope as an “umbrella”type agreement. It requires the parties to identify and monitor components of biological diversity—but this is only “as far as possible.”53 It is, however, noteworthy that protection of biodiversity means protection of endangered species from all threats. This distinguishes the convention from other agreements, which the book will illustrate, by and large, aims at protection from specific well-defined threats. As for habitat protection, it prefers in-situ conservation to ex-situ conservation, which is described in Section 9.1. Apart from these topics, the convention does not offer any firm obligations as to the protection of animals, but rather states overall goals and principles for furthering biological diversity through research and training, public awareness, transfer of technology, etc. Moreover, the convention also deals with access to genetic resources, which in this book is analyzed in Section 13.1.1 under the convention’s protocol—the Cartagena Protocol.54 49

See id.

50

See http://www.biodiv.org.

Various reasons are found in the press, See, e.g., Editor’s Note, Licensing Agreements Key to Technology Transfer?; An Intellectual Property Mechanism For Access to Biological Resources, LEGAL INTELLIGENCER, June 14, 1994, at 13; R.R., Biodiversity Treaty Unlikely to get Senate Eye in Upcoming Session, BIOTECHNOLOGY NEWSWATCH, Nov. 7, 1994, at 11; John Margolis, Odd Trio Could Kill Nature Pact; Biodiversity Treaty Imperiled, CHICAGO TRIB., Sept. 30, 1994, at 1. 51

52

See http://www.biodiv.org.

53

Convention on Biological Diversity, Article 7.

54

Cartagena Protocol on Biosafety to the Convention on Biological Diversity, Jan.

52 • The WTO, Animals and PPMs

For purposes of the analyses in this book, the most important aspect of the Convention on Biological Diversity is the notion that biological diversity is a common concern of humankind. In the rest of this chapter, other agreements are analyzed. The necessity of all these other agreements is explained as follows by Birnie and Boyle: Effective conservation of living resources, not only for their value to biodiversity, but for other values, requires that the protection of species in general and of endangered ones in particular be ensured on a sustainable basis. This necessitates regulation on a flexible basis to make sure, inter alia, that: species can be added to conventions, as they become threatened; habitats and ecosystems are preserved; introduction of exotic species is controlled; reserved areas are set aside; and that trade in endangered species and their products is limited.55 6

WHICH SPECIES ARE THREATENED?—THE IUCN RED LIST

After having identified that endangered species not per se protected automatically by hard law norms, it may also be of interest to ask the practical question: which species are threatened? The specific conventions protecting specific areas, by and large, contain “lists” of species protected by the particular convention; but there is also a more comprehensive and all encompassing source—The World Conservation Union’s Red List (also called the IUCN Red List or merely Red List).56 7

TRADE IN ENDANGERED SPECIES

In the realm of the manners in which animals can be protected, the most well-known agreement is the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).57 The convention has 169 parties.58

29, 2000, 39 I.L.M. 1027 (entered into force Sept. 11, 2003) [hereinafter Cartagena Protocol]. 55

See BIRNIE & BOYLE, supra note 2, at 599.

56

See The World Conservation Union, at http://www.iucn.org.

Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 993 U.N.T.S. 243, 12 I.L.M. 1085 (1973) [hereinafter CITES]. 57

58

See http://www.cites.org.

The Environment—Biodiversity • 53

7.1 CITES While CITES is well known, its scope is, however, limited. CITES, solely aims at impeding trade in endangered species or parts thereof,59 but, as mentioned above, trade is not the only threat to endangered species. In spite its limited scope, CITES is nevertheless important, because it prevents the lucrative trade in endangered species or parts thereof.60 Moreover, CITES has a signal value to tourists in the form of pamphlets, etc., which are handed out in, e.g., Denmark for purposes of educating the population about which species are endangered and which items should not be purchased.61 CITES Article 2 divides endangered species into three categories, where the rules differ in each category. 7.1.1

Appendix I

Appendix I covers “species threatened with extinction which are or may be affected by trade.”62 Trade in Appendix I-categorized species is limited in the way that it requires both export and import permits.63 The requirements for granting such export permits are the following: (a) a Scientific Authority of the State of Export has advised that such export will not be detrimental to the survival of that species; (b) a Management Authority of the State of Export is satisfied that the specimen was not obtained in contravention of the laws of that State for the protection of fauna and flora; (c) a Management Authority of the State of export is satisfied that any living specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment; and

59

See CITES Article 1(b)(ii).

For a more thorough description of CITES and trade in endangered species or parts hereof, see BIRNIE & BOYLE, supra note 2, at 625–31. 60

61

See Danmarks Skov og Naturstyrelse, at http://www.sns.dk/cites/foldere/.

62

See CITES Article II:1.

63

See CITES Article III.

54 • The WTO, Animals and PPMs

(d) a Management Authority of the State of export is satisfied that an import permit has been granted for the specimen.64 Import permits require: (a) a Scientific Authority of the State of import has advised that the import will be for purposes which are not detrimental to the survival of the species involved; (b) a Scientific Authority of the State of import is satisfied that the proposed recipient of a living specimen is suitably equipped to house and care for it; and (c) a Management Authority of the State of import is satisfied that the specimen is not to be used for primarily commercial purposes.65 The strict rules for the issuance of export and import permits essentially functions as a trade ban with very limited exceptions, which are not given to commercial trading. The effectiveness of the system is, however, debated.66 7.1.2

Appendix II

Appendix II covers “species which although not necessarily now threatened with extinction may become so unless trade in specimens of such species is subject to strict regulation”67 Trade in Appendix II species is limited by requiring export permit only.68 The requirements for the issuance of such an export permit are identical to those for Appendix I species, except for the import permit requirement.69 7.1.3

Appendix III

Appendix III covers “species which any Party identifies as being subject to regulation within its territory.”70

64

CITES Article III:2.

65

CITES Article III:3.

For an outline of the debate of effectiveness, see, e.g., BIRNIE & BOYLE, supra note 2, at 629. 66

67

See CITES Article II:2.

68

See CITES Article IV:2.

69

See id.

70

CITES Article III:3.

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Trade in Appendix III species are limited by requiring export permits only.71 The requirements for the issuance of such an export permit are requirements (b) and (c) in Section 7.1.1 for Appendix I species.72 7.1.4

CITES as Global Type of Environmental Protection

The manner in which CITES functions illuminates that it is a global type of environmental protection, meaning that even though the survival of a local species can be handled as a local or regional issue, the CITES sets forth a global framework for trading in endangered species—making it a global issue and a global responsibility. The reason for the global responsibility is that the threat to the species is that people in distant countries have made a demand for endangered species. Instead of only handling the problem locally or domestically by curbing the taking of the animals, the demand is also curbed to optimize the effect. The global aspect of the convention is also evidenced in the Preamble to CITES, which: Regogniz[es] . . . that wild fauna and flora in their many beautiful and varied forms are an irreplaceable part of the natural systems of the earth which must be protected for this and the generations to come . . . that international cooperation is essential for the protection of certain species of wild fauna and flora against over-exploitation through international trade. It should also be noted that while states sharing or hosting the endangered species have a special interest in these species, and a special responsibility to preserve them, the rest of the world community equally has an interest in avoiding the extinction of species. In other words, the question must be asked: who is the injured state if, e.g., the last panda dies? In this instance, it could be argued that the entire world community is injured. 7.1.5

CITES Does Not Follow Legal Borders

CITES defines “species” to include a “geographically separate population.”73 This means that a population of a species in one country can be in Appendix I, whereas the population of the same species in another country can be in Appendix II, III or not listed at all. The populations could be split within a country, because the decision is based on ecological criteria. However, the most widely used practice is to respect national boundaries.74 71

See CITES Article V:2.

72

See id.

73

See CITES Article I(a).

74 See Chris Wold, Multilateral Environmental Agreements and the GATT: Conflict and Resolution?, 26 ENVTL. L. 841, 892 (1996).

56 • The WTO, Animals and PPMs

7.1.6

CITES Appendices as Evidence that a Species Is Endangered

Due to the fact that CITES is such a well-known agreement, it has been utilized as “fact” or “evidence” in GATT and WTO cases. However, when utilizing CITES in this manner, it must be kept in mind that not all endangered species are listed in Appendix I—only those who “are or may be affected by trade.” Moreover, species listed in Appendices II and III are not considered endangered species. Finally, the manner in which populations are treated separately has the effect that some species can be listed in several appendices at the same time. 8

MIGRATORY SPECIES

Animals can move from one area to another, and they are not known to respect national borders. This issue has led to special protection of those species that are migratory. As illuminated in Section 3.1.2, migratory species are examples of shared natural resources, which, according to the Principles on Shared Resources, means that cooperation is preferred, but full sovereignty remains intact. There may, however, also be migratory species in, e.g., the high seas, where states maintain the freedom of fishing subject to their treaty obligations to conserve living natural resources.75 8.1 The Bonn Convention The Bonn Convention regulates the conservation of migratory species.76 Its aim is to regulate what is traditionally considered regional environmental problems—migratory species. The convention, however, “lifts” the issue up to a global level in its Preamble, where it makes the survival of the species a legacy that must be preserved for the good of mankind: RECOGNIZING that wild animals in their innumerable forms are in [sic] irreplaceable part of the earth’s natural system which much be conserved for the good of mankind; AWARE that each generation of man holds the resources of the earth for future generations and has an obligation to ensure that this legacy is conserved . . . that the States are and must be the protectors of the migratory species of wild animals that live within or pass through their national jurisdictional boundaries . . . that conservation and effective management of migratory species of wild ani-

75

See UNCLOS Articles 116–20.

See Convention on the Conservation of Migratory Species of Wild Animal, Jan. 1980, 19 I.L.M. 15 (1980) [hereinafter Bonn Convention]. 76

The Environment—Biodiversity • 57

mals require the concerted action of all States within the national jurisdictional boundaries of which such species spend any part of their life cycle [emphasis added]. The convention can therefore be said to recognize that the entire world community is the injured state, if the last migratory sea turtle dies. However, when comparing who the obliged states are in CITES and in Bonn, Bonn stands out as a regional type environmental agreement, because it is only the host countries that have obligations under the convention, whereas CITES—due to the demand markets—also puts obligations on non-host countries. The Bonn Convention protects species of wild animals whose members “cyclically and predictably cross one or more national jurisdictional boundaries.”77 The convention provides a framework for the host countries of migratory species to cooperate. The notion of cooperation is in accordance with the recommendations in the Principles on Shared Resources. More importantly, however, the cooperative framework is substituted for hard law obligations to protect endangered migratory species. Currently 95 countries are parties to the Convention.78 8.1.1

Endangered Migratory Species—Appendix I

The convention distinguishes between endangered migratory species and species with “an unfavourable conservation status . . . as well as those . . . [who] would significantly benefit from the international co-operation.”79 Endangered migratory species are defined as species that are “in danger of extinction throughout all or a significant portion of its range,”80 where range means “all the areas of land or water that a migratory species inhabits, stays in temporarily, crosses or overflies at any time on its normal migration route.”81 The endangered migratory species are listed in Appendix I.82 When a species is listed in Appendix I, “range states” are required to conserve and restore habitats and ensure that obstacles to migration are limited or 77

Bonn Convention Article I:1a).

78

See Convention on Migratory Species Homepage, at http://www.cms.int.

79

Bonn Convention Article IV:1.

80

Bonn Convention Article I:1e).

81

Bonn Convention Article I:1f).

82

See Bonn Convention Article III:1.

58 • The WTO, Animals and PPMs

removed.83 Moreover, the convention requires control with exotic species.84 Apart from habitat protection, the convention also requires the “range states” to “prohibit the taking of animals,” with the exception of scientific purposes, for assisted survival of the species (probably captive breeding programs), extraordinary circumstances and to “accommodate the needs of traditional subsistence users.”85 “Taking” is defined as “hunting, fishing, capturing, harassing, deliberate killing, or attempting to engage in any such conduct.”86 This kind of protection of the migratory endangered species essentially covers all areas of protection of the species. Therefore, whereas CITES solely covered trade, the Bonn Convention ensures a more all-round protection. Moreover, it should be noted that the protection of the endangered migratory species, according to the Bonn Convention, is not subject to any kind of cooperation requirement; the mere fact that the species is put in Appendix I creates the legal obligation to protect the species in place. 8.1.2

Migratory Species with Unfavorable Conservation Status—Appendix II

Migratory species, which have an unfavorable conservation status or would benefit significantly from international cooperation, are listed in Appendix II.87 Protection of those species that have an unfavorable conservation status is dependent on whether the range states conclude what is called “agreements.”88 The agreements should, inter alia, protect habitat, prohibit taking that is not otherwise allowed under any other MEAs protecting the species and coordinate efforts to suppress illegal taking.89 These agreements are open for accession for range states that are not parties to the convention.90 Appendix II species are only protected if the host countries wish to conclude agreements to protect them. Otherwise, the protection is only offered if the sovereign host countries enact or maintain legislation to do so. 83

See Bonn Convention Article III:4a) and b).

84

See Bonn Convention Article III:4c).

85

See Bonn Convention Article III:5.

86

Bonn Convention Article I:1i).

87

See Bonn Convention Article IV:1.

88

See Bonn Convention Article IV:3.

89

See Bonn Convention Article V:4.

90

See Bonn Convention Article V:2.

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8.1.3

Other Migratory Species

As for species that are not in Appendix I or II, the convention encourages that the range states conclude “agreements” to protect them.91 These species need thus not to be threatened in any way. Moreover, these species can fall outside the definition of “migratory” in the convention, which is “cyclically and predictably” crossing of borders. The only requirement is that members of the species “periodically cross” borders.92 8.2 Status of Migratory Species In conclusion, it is evident that migratory species have a special status compared to other species of fauna.93 The special status means that in comparison to endangered species that are not migratory, the migratory endangered species are protected against a broader range of threats in one single convention, i.e., habitat protection, protection against “taking” (which is the first step to trade in the species, because if they are not caught, how can they be sold?) and an obligation to actively restore damaged habitats or migration routes. Endangered species that are not migratory are not protected in any such all-round convention, but protection is found more sporadically in, e.g., CITES and in those conventions protecting their habitat as illuminated below. 9

HABITAT PROTECTION

Preservation of habitat is essential for the survival of flora and fauna, which is also evidenced in Section 8.1 in relation to the Bonn Convention. There are two global MEAs that protect habitat: the Ramsar Convention94 and the World Heritage Convention.95 Moreover, many regional arrangements exist.96

91

See Bonn Convention Article IV:4.

92

See id.

93

See also UNCLOS Article 64.

See Convention on Wetlands of International Importance, Feb. 2, 1971, as amended by the Protocol of Dec. 3, 1982, and amended May 28, 1987 [hereinafter the Ramsar Convention], available at http://www.ramsar.org. 94

95 See UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage, Nov. 16, 1972, 27 U.S.T. 37, 11 I.L.M. 1358 (1972) [hereinafter World Heritage Convention]. 96

See, e.g., BIRNIE & BOYLE, supra note 2, at 602–03.

60 • The WTO, Animals and PPMs

Both the Ramsar Convention and the World Heritage Convention have lists of protected sites; not protected species. 9.1 A Note on Habitat Protection and Conservation Conservation of living natural resources deals with two types of conservation. In-situ conservation is the preferred type of conservation.97 In-situ conservation means to facilitate the survival of the species in their natural habitat.98 This is typically to adopt measures that will ensure that habitats are not destroyed or damaged too much, e.g., by creating nature reserves or national parks.99 The other type of conservation is ex-situ conservation, which means to facilitate the survival of the species outside its natural habitat.100 This can be done in, e.g., zoos, but it can also be done specifically in order to ensure captive breeding, if the species would not otherwise be able to restore itself in the wild.101 It should, moreover, be noted that the introduction of invasive alien species is also a concern in habitat protection.102 It is thus not clear how to “reintroduce” species bred in captivity into the wild again.103 In the following sections, the two most important conventions regarding in-situ conservation are mentioned briefly. The issue of habitat protection in relation to the establishment of natural parks does, however, not have any trade-related implications and is not expanded upon. 9.2 The World Heritage Convention The World Heritage Convention, which has 181 parties,104 protects flora and fauna, if the areas “constitute the habitat of threatened species of

97

See Convention on Biological Diversity Articles 8 and 9.

98

See Convention on Biological Diversity Article 8.

99

See BIRNIE & BOYLE, supra note 2, at 612.

100

See Convention on Biological Diversity Article 9.

101

See BIRNIE & BOYLE, supra note 2, at 577.

102

See Convention on Biological Diversity Article 8(h).

103

See BIRNIE & BOYLE, supra note 2, at 578.

104

See http://www.unesco.org/.

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animals and plants of outstanding value from the point of view of science and conservation.”105 The World Heritage Committee (which consists of 21 states)106 establishes the list of sites to which the state to whom the property belongs has the right to object.107 The sovereignty is thus not affected by the identification of the areas, but there is attached a special duty to cooperate to preserve “heritage.”108 9.3 The Ramsar Convention The Ramsar Convention has 150 contracting parties.109 It focuses solely on protecting wetlands and the waterfowl, regardless of whether they are migratory and/or endangered.110 As in the World Heritage Convention, the habitat protection does not affect issues of sovereignty.111 In other words, those conventions, which aim at protecting the natural habitat by establishing nature or national parks, do not force a country to establish such parks. Rather it is up to each sovereign country to decide whether they will follow the advice of the forums of the convention to establish such parks. 10 MARINE MAMMALS After having illuminated that environmental protection of animals only extend to those animals that are endangered, an important exceptions to the rule must be introduced. Marine mammals have attained a status that includes them in the description of environmental protection.112 This is perhaps because they are special and because human beings generally like whales, dolphins and seals. The issue of marine mammals is also included in Chapter 5 on ani-

105

World Heritage Convention Article 2.

106

See World Heritage Convention Article 8:1.

107

See World Heritage Convention Article 11:2 and 3.

108

See World Heritage Convention Article 6:1.

109

See http://www.ramsar.org.

110

See Ramsar Convention, at Preamble and Article 1.

111

See Ramsar Convention Article 2:3.

See, e.g., UNCLOS Article 65 and 120. See also BIRNIE & BOYLE, supra note 2, at 666–69. 112

62 • The WTO, Animals and PPMs

mal welfare protection of animals. This section outlines the protection in relation to environmental polices and illuminates the difficulties in categorizing certain measures to protect marine mammals. 10.1 The Whales The 1946 International Convention for the Regulation of Whaling (ICRW) is aimed at “[r]ecognizing the interest of the nations of the world in safeguarding for future generations the great natural resources represented by the whale stocks.”113 This evidences an early environmental concern with the reference to future generations, which decades later proved to be one of the founding thoughts for the concept of sustainable development. That the convention indeed aims at what is now considered biological diversity protection or environmental protection of animals is, moreover, evidenced in two other paragraphs of the Preamble: Recognizing that the whale stocks are susceptible of natural increases if whaling is properly regulated, and that increases in the size of whale stocks will permit increases in the number of whales which may be captured without endangering these natural resources . . . Recognizing that in the course of achieving these objectives, whaling operations should be confined to those species best able to sustain exploitation in order to give an interval for recovery to certain species of whales now depleted in numbers [emphasis added]. The 1982 ten-year moratorium or pause in commercial whaling, which became effective in 1985, covers both endangered and non-endangered whales.114 The moratorium prohibited whaling of both endangered and non-endangered species, which, according to the definitions in this book is both animal welfare protection and environmental protection of animals. The International Whaling Commission (IWC) acknowledged that there was a problem with protecting all species of whales, regardless of their conservation status, with a zero quota in the 1982 moratorium.115 The so-called Revised Management Procedure was set up to solve the issue so that scientific data could be analyzed for purposes of opening quotas for

113 International Convention of the Regulation of Whaling, Washington Dec. 2, 1945 [hereinafter ICRW], available at http://www.iwcoffice.org, at Preamble. 114 See http://www.iwcoffice.org. See also BIRNIE & BOYLE, supra note 2, at 667. The moratorium does not affect native peoples’ right to whaling; see http://www.iwcoffice.org. 115

See http://www.iwsoffice.org.

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non-endangered whales.116 The moratorium on commercial whaling, which applied to all 13 species of the great whales, did not discriminate among endangered and non-endangered whales. The moratorium was surprisingly lifted in June 2006,117 with a positive vote from Denmark.118 The primary complaints about lifting the moratorium are, however, not biodiversity concerns, but rather animal welfare concerns, because it is posited that it is not possible to kill whales in a humane manner, and this should be reason enough for not allowing commercial whaling.119 Clearly, protection of whales and other marine mammals falls within the category of environmental protection of animals to the degree that the protection is aimed at species of whales that are endangered. The moratorium can, however, be considered a precautionary measure in accordance with Rio Principle 15. The requirements for a precautionary measure are analyzed further in Chapter 8 where the difference between a precautionary measure, based on a risk assessment, and an animal welfare measure, without risk assessment, is illuminated. The issue of marine mammals and the U.S. marine mammal protection is analyzed further in Chapter 5. Moreover, it should be mentioned that other conventions have been concluded to protect, e.g., seals in Antarctica—where certain of these species never have been subject to human exploitation.120 11 SUMMING UP PROTECTION OF ANIMALS The call for the holistic approach in the Convention on Biological Diversity appears well founded after having reviewed the above agreements, which provide for protection in many different ways. In summary, endangered species can be protected by having their habitat protected by the Ramsar Convention (if waterfowl) and the World Heritage Convention. Moreover, if the species is an endangered migratory species of fauna, the Bonn Convention can protect its habitat, as well as performing protection against “taking.” CITES can protect the species 116

See id.

117

See Resolution 2006–1, St. Kitts and Nevis Declaration, available at id.

118

See http://www.whalewatch.org.

119

See id.

See, e.g., Caterine Redgwell, The Protection of the Antarctic Environment and the Ecosystem Approach, in INTERNATIONAL LAW AND THE CONSERVATION OF BIOLOGICAL DIVERSITY 5, 5 (Michael Bowman & Catherine Redgwell eds., 1996). 120

64 • The WTO, Animals and PPMs

themselves, in the course of trade, but not from “taking,” in the course of, e.g., fishing for other species. Moreover, if the species is a marine mammal, special rules apply and it may be protected even if not endangered. It could also be said that the overall policy to protect biodiversity is coupled with few hard law obligations to protect endangered species in welldefined situations:

Policy area to protect biological diversity Hard law obligations to protect endangered species

In addition, it should not be forgotten that numerous bi- and plurilateral agreements also protect the species and their habitats. To give another example than that of the whale, the orangutan is chosen as an example, inter alia, because it generates a good example in the WTO analysis in Chapter 8, Section 8.4. 11.1 An Example: The Orangutan The orangutan is also called Pongo abelii and Pongo pygmeus; the former resides in Sumatra, Indonesia and the latter in Borneo, Malaysia and Indonesia.121 These are the only areas left where the endangered species is not extinct; i.e., the species previously resided in much greater areas than on Sumatra and Borneo.122 The orangutan is an example of not only a charismatic mega-fauna, which may tempt cynical people to wish for them as pets and thus steal their babies, but also a species, which is vulnerable to destruction and interference in its habitat. Both species of orangutans live, however, for the most part in protected habitat, such as the Tanjun Puting National Park.123 121

See UNEP facts sheet on orangutan, at http://www.unep.org/grasp/Fact_orang.

asp. 122

See id.

123

See id.

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To ensure that trading is not allowed in the species, they are listed on CITES Appendix I; trading, however, is not the sole threat to the species, which is getting extinct mostly due to logging and mining in its habitat.124 The orangutan lives primarily in ramin trees.125 The illegal logging of ramin has caused the Indonesian government to ban export of the ramin.126 Ramin is, in addition, placed on CITES Appendix III.127 (Recall from Section 6.1.3 that Appendix III consists of species, which are regulated domestically and do not reflect its general conservation status.) The trade examples in the WTO analysis in Chatper 8, Section 8.4, can thus be analyzed from three different points of view; prohibition of trade in ramin, because it is a species that is protected by the Indonesian government to “save” the forest; prohibition of trade in ramin to protect the orangutan; and the direct protection of the orangutan by a trade ban on the orangutan or products thereof. 12 FULL SOVEREIGNTY OVER NATURAL RESOURCES? As touched upon earlier, the understanding of sovereignty over natural resources and environmental policies is critical for purposes of the analyses in this book. When analyzing how to protect a species by protecting its habitat and by protecting it otherwise, two norms are in direct conflict: the sovereign right to exploit and protect natural resources according to the countries’ own social, economic and environmental policies as opposed to a limitation of such sovereignty to protect endangered species by limiting exploitation of both the species itself and its habitat. Deviation from the rule of full sovereignty over natural resources is thus to be found in hard law norms laying down some obligation to refrain from, e.g., taking of the species in issue or the active protection of a species.

124

See id.

See e.g., Danielle Knight, Hardwood Ban a Lifeline for Endangered Orangutan, Aug. 18, 2001, ASIA TIMES ONLINE, available at http://www.atimes.com. 125

126 See, e.g., id; Indonesian Ramin Worth Millions Traded Illegally Around the World, May 15, 2003, BRIDGES, vol. 3, number 9, available at http://www.ictsd.org/biores/03-0515/inbrief.htm; The Malaysian Timber Council at http://www.mtc.com.my/illegal/trade _of_ramin.htm. 127

See, e.g., The Malaysian Timber Council, supra note 126. Knight, supra note 125.

66 • The WTO, Animals and PPMs

12.1 “Common Concern” “Common concern,” as outlined in Section 5.1, is a concept that may prove to qualify sovereignty over natural resources. Birnie and Boyle argue, mainly based on Rio, that the concept of “common concern” arose as the focus changed from transboundary issues to more global issues.128 They distinguish the concept of “common concern,” from “common property” and from “common heritage,” which cuts to the heart of the debate: “common concern” in their view, reaffirms the sovereignty over natural resources, but “this sovereignty is not unlimited or absolute, it must now be exercised within the confines of the global responsibilities set out principally in the Climate Change and Biological Diversity Conventions, and also in the Rio Declaration and other relevant instruments.”129 The responsibility is therefore not solely a responsibility owed to neighboring states but the world community at large, i.e., erga omnes partes.130 The obligation to preserve endangered species could be owed erga omnes, if the norm has evolved into customary norm rather than erga omnes partes, i.e., owed to the parties to the conventions, which recognize that preservation of endangered species is a “common concern.” It is important to underscore that limitations to sovereignty over natural resources can only be laid down in hard law treaties or customary law. It is important to distinguish between the concepts of limitations to sovereignty over natural resources and issues of erga omnes character, because this does not mean the same. 12.2 Limitations on Sovereignty On the issue of pollution and customary law, there is a customary obligation to prevent pollution from damaging neighboring states.131 The obligations are those that are defined as regional or neighboring issues in this book.132 It can, however, be claimed that this neighboring obligation has been modified to now also include an obligation not to pollute global common areas, including Antarctica, the high seas and outer space.133

128

See BIRNIE & BOYLE, supra note 2, at 98.

129

See id. at 98–99.

130

See id. at 99.

131

See id. at 109–11.

132

See also Stockholm Principle 21.

133

See BIRNIE & BOYLE, supra note 2, at 111.

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This principle is, however, not the same as a global responsibility to protect biodiversity as a customary rule. If protection of biodiversity in relation to endangered species is considered customary law, this means that a country hosting an endangered species is obliged to provide habitat protection, prevention from trade or taking, etc. These are far reaching obligations, and this in itself is an indication that no such hard law obligation exists outside the conventions, in particular because all conventions thus far reaffirm the notion of full sovereignty over natural resources. Birnie and Boyle are of the same opinion and state that “if it can be said that there is a recognition of a duty to conserve resources its content is unclear.”134 They, moreover, recognize that [T]he problems of migration, and that wildlife conventions in general are not only poorly related to or co-ordinated to each other but also with those dealing the activities and sources of pollution and other forms of disturbance most threatening to wildlife. The legal regime established by the existing networks of global and regional conventions, though it has greatly expanded under the impetus of the UNCHE and UNCED outcomes, is still far from comprehensive, universal, or effective in scope of operation.135 The opinion on customary law in relation to endangered species, however, differs. Glennon, e.g., proposes that: “It is now possible to conclude that customary international law requires states to take appropriate steps to protect endangered species.”136 Taking a more practical view on the matter, there may be big differences between, e.g., preventing trade in endangered species and providing habitat protection and also in relation to the issue of opinio juris. For purposes of the analyses in this book it is not important to lay down clear criteria for where the line is drawn. With such uncertainties, it would be a task of great dimensions to evaluate inter alia opinio juris in relation to each aspect of protection of endangered species. The most important thing to understand is that there may be certain customary rules to protect endangered species but that treaty law, first and foremost, regulates the area. The few customary rules in issue are those that materialize in the form of domestic laws and negative obligations, e.g., prohibition of taking and trading endangered species. 134

Id. at 638.

135

Id.

Michael J. Glennon, Has International Law Failed the Elephant, 84 AM. J. INT’L L. 1, 30 (1990). 136

68 • The WTO, Animals and PPMs

12.3 Erga Omnes and Common Concern Another concept to understand is the issue of erga omnes obligations in relation to biodiversity and protection of endangered species. It is argued that some global environmental concerns includes obligations that are owed erga omnes or erga omnes partes, i.e., issues that concern the world community at large and not just the neighboring states. Birnie and Boyle considers these areas to include the World Heritage Convention, Trade in Endangered Species, Ozone Depletion, Climate Change, Biological Diversity, Dumping at Sea or the Law of the Sea.137 There is, however, a big difference between stating that issues relating to biological diversity are part of customary law and that they are erga omnes obligations. The difference would, e.g., have consequences for a country that is not a party to the Convention on Biological Diversity. Arguing that it is customary law means that the country would have to observe certain norms laid down in the convention. Arguing, however, that the convention applies erga omnes means that the obligations laid down in it do not, in concreto, become a bilateral issue. Rather, the obligations are owed erga omnes partes. On the issue of endangered species and whether erga omnes obligations to protect these exist, it is important to understand the concept of an injured state and the concept of a common concern. On a more logical level, the issue of an injured state may indicate whether such obligations are indeed owed erga omnes or erga omnes partes. This argument is based on the notion that all states are injured by, e.g., ozone depletion, extinction of an endangered species or pollution of the high seas. While extinction of an endangered species renders the host state injured, the rest of the world community can also be said to be injured from the loss of biodiversity. In the case of a shared resource, the neighboring state is, moreover, a directly injured state. In conclusion, apart from the neighboring issues, this book posits that erga omnes obligations in relation to animals are those where the world community at large is injured.138 The notion of a common concern fits the notion of erga omnes obligations when defined this way.139 The world community, e.g., has an interest 137

See BIRNIE & BOYLE, supra note 2, at 197.

See also OLE SPIERMANN, MODERNE FOLKERET 121 (Jurist og Økonomforbundets Forlag, 2d ed. 2004); BIRNIE & BOYLE, supra note 2, at 99. 138

139

See also, Eva M. Kornicker Uhlmann, State Community Interests, Jus Cogens and Pro-

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in maintaining the panda alive, and China’s obligation to protect the panda is owed erga omnes. Recalling that only some remedies can be sought for erga omnes violations and that Cassese cautioned not to overrate the procedural right attached to the world community in response, it could be argued that the world community is provided with an option to show interest or effectuate diplomatic pressure, which both are a kind of common concern. While the concepts are not identical, they nevertheless both stem from the notion that the world community can show an interest and assert pressure. Common concern cannot be utilized independently in relation to an undefined policy goal. Hence, while the notion of common concern appears understandable in relation to endangered species, it nevertheless appears illusive when standing alone. Joyner articulates this as: “The narrow national interests of the state are to be superceded by broader, common interests of humankind. That might be fine. But who determines what these ‘common interests’ should be, at whose expense and for how long?”140 In reality, the issue goes far beyond whether an obligation is owed bilaterally or erga omnes. This can be evidenced by the hypothetical example that Indonesia and Malaysia decide to sell all their orangutans. In this scenario, can one state claim to be injured? The answer is most likely no. The consequence of this is that if no state is injured, there is no state that can exercise the rights of an injured state and enact counter-measures. Therefore, it is the rest of the world community or the contracting parties, which have the procedural rights of cessation, non-repetition and reparation. It is, however, evident, in this scenario, that once the natural population is extinct and the orangutans only exist as random pets and in zoos, there are no remedies that can cure the issue; it therefore makes no difference whether the obligation is owed bilaterally or erga omnes. Hence, while there may be fine legal terms to attach to endangered species, they do not effectively protect endangered species in the event a country decides to kill or sell all the members of an endangered species. Although, if the obligation is one laid down in hard law or is a customary rule, the country is obliged to obey the rule under the notion of pacta sunt servanda.

tection of the Global Environment: Developing Criteria for Peremptory Norms, 11 GEO. INT’L ENVTL. L. REV. 101, 108, 124 (1998), where the two concepts also are analyzed together. 140 Christopher C. Joyner, Book Review The Concept of the Common Heritage of Mankind in International Law by Kemal Baslar, 13 EMORY INT’L L. REV. 615, 622 (1999).

70 • The WTO, Animals and PPMs

13 INVASIVE ALIEN SPECIES Invasive alien species of flora and fauna can cause the native species to decline or become extinct and are in this way a threat to biodiversity.141 It is not all “out of place” species that become invasive; consequently, some “out of place” species can live peacefully side by side with the “original” species.142 It is thus difficult to define what the “native” ecosystem originally was in most parts of the world, because, over time, many new species have been introduced.143 The EC has adjudicated the issue on invasive alien yellow bees on Læsø where the yellow bee species is the original species.144 In this case, the court found that the prohibition of imports of the invasive alien species constituted a measure having an effect equivalent to a quantitative restriction but was justified under the environmental exception, inter alia, because it was a measure to protect biological diversity.145 13.1 Genetically Modified Flora and Fauna A more modern version of the problem with invasive alien species is the particular situation when the invasive species are genetically modified species. The appropriate term for flora or fauna that have been genetically manipulated is “genetically modified organisms—GMOs.” “Living Modified Organisms—LMOs” are understood to be included in the concept of GMOs, but could also be living organisms modified by conventional techniques, such as plant breeding.146 The regulation of invasive alien species is a good example of how environmental law itself is uncoordinated internally, because the topic encompasses a vast area. Invasive alien species are regulated in at least four different ways in jus gentium: (1) in MEAs that deal with the impact on native species and ecosystems; (2) in instruments relating to sanitary and phytosanitary issues; (3) in technical guidance in the transport sector; and (4) instruments relating to the intentional introduction of alien species.147 141 See The Basics on Alien Invasive Species, available at http://www.iucn.org/biodiversityday/overview.html. 142

See id.

143

See id.

144

See Case C-67/97, Criminal Proceedings against Ditlev Bluhme, Dec. 3, 1998.

145

See id.

See, e.g., The Essential Guide to GMO Terms, BANGKOK POST, Nov. 5, 2000, at 3; BIRNIE BOYLE, supra note 2, at 580. 146

&

147

See Subsidiary Body on Scientific, Technical and Technological Advice, Invasive Alien

The Environment—Biodiversity • 71

Genetically modified crops are the focus of an ongoing dispute between the United States and the EU, which has reached the stage of being an official WTO dispute where Argentina, Canada and the United States have launched a panel proceeding against the EU.148 For purposes of this book, the ongoing WTO dispute is only mentioned briefly, because there is no animal protection inherent to this dispute. Moreover, the dispute was not be decided under the GATT but under two other agreements, which are not the focus of this book.149 The panel delivered its report in September 2006.150 On the issue of genetically modified animals, the focus of discussions has been on ethics relating to cloning—which with the birth of the sheep “Dolly” became a reality.151 Cloned animals are so far not posing any risk of becoming invasive alien species; out of more than 10,000 attempts to clone animals worldwide, merely 124 resulted in live births, and only 65 animals reached maturity.152 Cloning of animals is thus not an issue relating to invasive alien species but, at present, an animal welfare problem.153 13.1.1

The Cartagena Protocol on Biosafety

The Cartagena Protocol on Biosafety154 is a protocol to the Convention on Biological Diversity. It entered into force on September 11, 2003, during the Cancún Ministerial Conference. Palau provided the 50th ratification,155 which triggered the convention to enter into force after 90 days.156

Species, Convention on Biological Diversity, UNEP/CBD/SBSTTA/6/7 (2000) [hereinafter CBD—Invasive Alien Species], at executive summary. 148 See documents on EC—Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291, WT/DS292, WT/DS293 [hereinafter EC—GMO]. 149

See Chapter 7 on TBT and SPS Agreement, including the GMO case in the WTO.

150

See WT/DS291/26, WT/DS292/20, WT/DS293/20.

151

ORG,

See, e.g., Glenn McGee, Primer on Ethics and Human Cloning, ACTIONBIOSCIENCE. Feb. 2001, available at http://www.actionbioscience.org.

152 See John Vidal, Scientists Condemn Shock Report by Genetics Watchdog as ‘Irrisponsible,’ GUARDIAN (LONDON), May 15, 2002, at Home Pages 3. 153

See id.

See Cartagena Protocol on Biosafety to the Convention on Biological Diversity, concluded at Montreal, Jan. 29, 2000, available at http://www.biodiv.org/doc/legal/ cartagena-protocol-en.doc. 154

155 See, e.g., Press Release from UNEP, Treaty on International Trade in GMOs to Become Law, at http://www.unep.org/MediaRoom/pressrelease/Default.asp, in “Press Releases —June 2003.” 156

See Cartagena Protocol Article 37.

72 • The WTO, Animals and PPMs

The Cartagena Protocol aims at “ensuring an adequate level of protection in the field of the safe transfer, handling and use of living modified organisms resulting from modern biotechnology that may have adverse effects on the conservation and sustainable use of biological diversity.”157 The protocol applies to transboundary movement of LMOs.158 In relation to the WTO, the Cartagena Protocol is mostly related to disciplines outside the scope of the GATT.159 14 DDT AND BIO-ACCUMULATION IN POLAR BEARS DDT160 is another example that is utilized throughout this book, and it is mainly chosen because it illuminates how immediate threats to humans are balanced against long-term damage on the environment: DDT is a threat to animals due to the effect of bio-accumulation, but DDT is also utilized to fight malaria. Both aspects are outlined in this section. This is the first environmental example of indirect protection of animals, i.e., non-biodiversity concerns. DDT is a persistent organic pollutant (hereinafter POP), which means that it “possess[es] toxic properties, resist[s] degradation, bioaccumulate[s] and [is] transported, through air, water and migratory species, across international boundaries and deposited far from [its] place of release, where [it] accumulate[s] in terrestrial and aquatic ecosystems.”161 DDT resists degradation by light, chemical reactions and living organisms.162 Bio-accumulation of DDT takes place because DDT is highly fat-soluble and accumulates at a faster speed than the speed it takes for an organism to get rid of the chemical.163 The accumulation starts at the base level of the food chain, such as in plankton and insects.164 Thus, centuries later, 157

Cartagena Protocol Article 1.

158

See Cartagena Protocol Article 4.

Issues relating to food and feedstuff and the safety thereof fall under the SPS Agreement; see Chapter 7. 159

160

Dichlorodiphenyltrichloroethane.

161

POPs Convention, Preamble.

See WWF Report, Resolving the DDT Dilemma: Protecting Biodiversity and Human Health (World Wildlife Fund 1998) [hereinafter WWF Report on DDT], Part A, Section 1. 162

163

See id., at Part B, Section 2.

164

See id.

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the concentration is many hundred times larger in large predators and humans, because it has been accumulated up through the food chain.165 DDT is, among other things, highly toxic to fish but not so acutely toxic to mammals.166 Poisoning can cause death, brain and nerve damage.167 It is associated with low fertility and premature births.168 Moreover, DDE—a breakdown product of DDT—has caused eggshell thinning in predatory birds.169 Finally, it is suspected of having carcinogenic effect in humans.170 DDT, while also holding the above-described properties, moreover, has the special property or effect of affecting, in particular, large predators in the Arctic areas.171 It is from this special aspect of DDT that the example of the polar bear is generated. DDT has, since the 1930s, been used as an effective insecticide.172 Currently it is banned in more than 80 countries and is solely produced by India and China.173 Although DDT is described very unattractively, it is perhaps the most effective tool in the fight against malaria. Malaria is known to be the biggest killer in modern history.174 Malaria is a mosquito-borne disease that can be reduced up to 90 percent by spraying DDT into homes in areas that are affected by malaria.175 Indoor spraying prevents the mosquito from infecting the people in the house, because the insecticide kills it as soon as it lands in the house.176 165

See id.

166

See id. at Part B, Section 3.

167

See id.

168

See id.

169

See, e.g., Factsheet on DDT, at http://www.worldwildlife.org.

170

See, e.g., id.

See State of Environment Norway, Polar Regions Pollution, available at http://www. environment.no; Emily E. Barr, Bioaccumulation of Toxics in the Canadian Arctic: A Brief Review of Contaminant Sources, Transport Mechanisms and Contaminant Bioaccumulation Mechanisms in the Arctic Ecosystem, Faculty of Science, Athabasca University, July 1, 1998, available at http://www.athabascau.ca/courses/chem/330/secure/sample_essay.pdf. 171

172

See, e.g., Factsheet on DDT, at http://www.worldwildlife.org.

173

See, e.g., id.

174 See, e.g., Steven Connor, Spread of Farming May Have Given Rise To The Biggest Killer In Human History, Jun. 22, 2001, available at http://www.millennium-debate.org/ind22 jun013.htm. 175

See WWF Report on DDT, supra note 162, at Part A, Section 1.

176

See id.

74 • The WTO, Animals and PPMs

Because the analyses in this book focus on animals, this analysis focuses on how bio-accumulation of DDT in large predators is prevented. In this instance, an agreement is not reached on bio-accumulation of DDT in wildlife. Rather, DDT falls within such dangerous substances that are prohibited or restricted due to their toxicity. The following is a short note on how DDT can be viewed as a transboundary and global pollutant and whether that per se brings about an obligation to prevent the use of DDT. Finally, the agreements that prohibit dangerous substances are illuminated briefly. 14.1 Principle 21 and DDT The Stockholm Declaration Principle 21 is one of the few customary rules in international environmental law, and it has been incorporated into numerous conventions.177 Principle 21 reads as follows: States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. As described above, DDT causes damage all over the world, because it can travel in air and water without degrading. By definition, DDT cannot be controlled so as to stay within the jurisdiction of the country, using it and it thus has an inherent conflict with Principle 21, because it causes damage to other states or areas beyond the limits of national jurisdiction. Areas beyond national jurisdiction are primarily common property or common areas, such as the high seas or superjacent airspace.178 Common areas are characterized by the fact that they are open for legitimate and reasonable use by all states.179 Principle 21 thus applies to situations where a state causes damage to either a common area or another state. The polar bear lives in the Arctic areas (close to the North Pole), but not in Antarctica (close to the South Pole).180 The Arctic areas consist of 177 For discussion of its significance and legal status, see generally BIRNIE & BOYLE, supra note 2, at 109–12. 178

See id. at 141.

179

See id.

See, e.g., http://pbsg.npolar.no/pb_faq.htm#antarctica, where the historical evolution of the polar bear is explained as a bear evolving from the grizzly bear to the polar bear as we know it today. This is the reason the polar bear is not to be found in Antarctica. 180

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areas of national jurisdiction (e.g., Siberia and Greenland), whereas the North Pole essentially is water beyond national jurisdiction—albeit certain countries have claimed jurisdiction over it.181 The legal effect of Principle 21 is, however, not clear. Utilization of customary law in the environmental area is not straightforward, because the principles are very general and thus lack the ability of setting firm standards.182 Before understanding how the world community has dealt with the DDT issue, three similar problems are outlined briefly to illuminate how the world community has come up with three different answers— where merely one of them has resulted in almost a total ban. 14.1.1

Sulphur Dioxide and Nitrogen Oxides

The first example is pollution of the atmosphere of sulphur dioxide (SO2) and nitrogen oxides (NOx). SO2 and Nox mainly stem from combustion of fossil fuels and cause acid rain.183 The emission of sulphur and nitrogen causes acid rain not merely in adjacent countries but is, e.g., in Europe considered a regional problem.184 The response by the world community was, in this instance, regional regulation under the 1979 Geneva Convention on Long-Range Transboundary Air Pollution.185 The convention treats the air mass over Europe as a shared resource, which is regulated by common emission standards.186 No concrete commitments are, however, included in the convention.187 There are a few protocols aimed at reduction of emission, which have been quite successful—although it is on the basis of reduction and not a complete prohibition of emissions of sulphur dioxide and nitrogen oxides.188 14.1.2

Chlorine-Based Substances

The second example is the release of chlorofluorocarbons (CFCs), halons and other chlorine-based substances. These chlorine-based sub181 See, e.g., Barbara Rhodes, Who “Owns” the North Pole, available at http://members.tripod.com/90north/northpole.htm. 182

See BIRNIE & BOYLE, supra note 2, at 152.

183

For more elaborated explanation, see id., at 500.

184

See id.

185 Convention on Long-Range Transboundary Air Pollution, 1983 U.K.T.S. 57 [hereinafter Convention on Air Pollution]. 186

See BIRNIE & BOYLE, supra note 2, at 508.

187

See id. at 509.

188

For an elaborated explanation and analysis, see id. at 510–15.

76 • The WTO, Animals and PPMs

stances cause thinning of the ozone layer.189 Birnie & Boyle suggest that although the atmosphere is not “areas beyond the limits of national jurisdiction” as laid down in Principle 21, the atmosphere is nevertheless protected along the same lines as common areas are protected.190 The issue is thus not only regional, but rather global in nature, and is more an erga omnes issue. It should naturally follow that customary rules mandate that the atmosphere should be protected against CFCs, but it is—as in the case of acid rain—difficult to “extrapolate from this conclusion precise standards for diligent conduct of states.”191 Precise standards for state conduct are thus—as in the case of acid rain—laid down in agreements among states, rather than by observing customary rules. The 1985 Vienna Convention for the Protection of the Ozone Layer192 is, like the Convention on Air Pollution, a framework convention with little precise obligations.193 And as in the case of the Convention on Air Pollution, the protocol—the 1987 Montreal Protocol—is the instrument that sets firm obligations as to the essential phase-out of CFCs.194 It should, however, be noted that CFCs present a different problem than acid rain in the sense that acid rain can be limited by limiting the emission of sulphur dioxide and nitrogen oxides, and these can be limited in production methods. CFCs are not dangerous, per se, but the emissions of it when it reaches the ozone layer are the problem.195 The use of CFCs in, e.g., one refrigerator and the transfer of the CFCs to another refrigerator pose no environmental threat; it is solely the emission or release of the CFCs that is dangerous. The Montreal Protocol does however not deal with the “waste” problem196 regarding CFCs, but it merely deals with lowering and eventually eliminating consumption and production of CFCs.197

189

For more elaborated explanation, see id. at 501.

190

See id. at 516.

191

Id. at 517.

Vienna Convention for the Protection of the Ozone Layer, Mar. 22, 1985, UNEP Doc. IG.53/5, 1990 U.K.T.S. 1, 26 I.L.M. 1529 (1987) [hereinafter Vienna Convention on Ozone Layer]. 192

193

See BIRNIE & BOYLE, supra note 2, at 519.

194 See Montreal Protocol on Substances that Deplete the Ozone Layer, Sept. 16, 1987, 1990 U.K.T.S. 19, 26 I.L.M. 1550 (1987) [hereinafter the Montreal Protocol]. See also id. 195

For a more detailed description, see BIRNIE & BOYLE, supra note 2, at 501.

196 The protocol mentions destruction of substances in Article 1:5 where it defines “production” to mean produced substance minus substance destroyed by approved technologies. 197

See Montreal Protocol Articles 1–2; BIRNIE & BOYLE, supra note 2, at 519.

The Environment—Biodiversity • 77

14.1.3

Carbon Dioxide

A third long-rage polluter is the emission of carbon dioxide (CO2), which contributes to global warming.198 This is also an erga omnes type issue. As in the previous examples, firm obligations to reduce or eliminate the emission of carbon dioxide are to be found in agreements rather than in customary rules. Going straight to the heart of sustainable development, regulation of carbon dioxide presents the great dilemma of environmental protection, on the one hand, and economic development, on the other; thus agreements on the topic have proven difficult to conclude.199 Consequently, with large economic interests at stake, the emission of carbon dioxide is not to be eliminated, but rather to be stabilized in the 1992 Convention.200 The subsequent protocol, the Kyoto Protocol, probably became one of the most famous protocols in international environmental law after the Bush Administration announced that it was not going to ratify it.201 14.1.4

Sub-Conclusion

It must be concluded that principles in international environmental law may point to a customary rule of not causing neighboring or global environmental damage. The customary limitation could be argued to affect the right to utilize DDT. Moreover, these principles of not causing neighboring harm have, in similar situations, led to the conclusion of treaties laying down specific rules, which essentially leads to more concrete norms to abide by. This is also the case for DDT, and in the following sections the three UNEP conventions on management of pollutants are illuminated. 14.2 UNEP Conventions on Management of Pollutants Currently three UNEP conventions collectively provide for a “cradle to grave” management policy for hazardous chemicals.202 The three conventions engage in what is called “clustering,” i.e., cooperation between the conventions.203 198

For more elaborated explanation, see BIRNIE & BOYLE, supra note 2, at 501.

199

See generally id. at 523.

See Framework Convention on Climate Change, 31 I.L.M. 851 (1992); BIRNIE & BOYLE, supra note 2, at 524. 200

201 See Kyoto Protocol to the U.N. Framework Convention on Climate Change, Done at Kyoto, Dec. 1, 1997, available at http://www.unfccc.int; Ken Fireman & William Douglas, Treaty Abandoned; Bush Won’t Implement Plan to Reduce Global Warming, NEWSDAY (New York), Mar. 29, 2001, at A7; William Drozdiak & Eric Pianin, US Angers Allies Over Climate Pact; Europeans Will Aks Bush To Reconsider, WASH. POST, Mar. 28, 2001, at A1. 202 For an overview and introduction, see http://www.pops.int/documents/background/hcwc.pdf. 203

See id.

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The three conventions are: 1. 2.

3.

The Basel Convention, which deals with toxic waste and prevents it from being dumped into developing countries. The Rotterdam Convention, which equally deals with a dangerous substance, but this convention deals with dangerous substances in the course of trade. The Rotterdam Convention establishes a principle of “prior informed consent” when trading in certain hazardous chemicals and pesticides. The Stockholm Convention on POPs aims at prohibiting or limiting (including managing) POPs.

DDT falls within the scope of two of the three conventions: the Rotterdam Convention and the POPs Convention. 14.2.1

The Rotterdam Convention

The aim of the Rotterdam Convention is to protect “human health and the environment from certain hazardous chemicals and pesticides in international trade.”204 The convention operates with the notion of prior informed consent (PIC). The Rotterdam Convention, under its Annex III, regulates DDT. Annex III substances are subject to export and import restrictions in the form of PIC. Technically, the importing country shall submit a response to the Secretariat of the Rotterdam Convention, where it positively consents to importing DDT.205 The exporting country shall refrain from exporting DDT to countries that have not submitted PIC to the Secretariat—albeit there are some exceptions for exceptional circumstances.206 Therefore, if the countries follow the principles of PIC, the Rotterdam Convention does not per se prevent trading of DDT. 14.2.2

The POPs Convention

The aim of the convention is dual: to protect both human health and the environment from POPs.207 DDT is categorized in Annex B to the convention, which means it is not prohibited, but merely restricted.208 Production 204

Rotterdam Convention, Preamble.

205

See Rotterdam Convention, Article 10.

206

See Rotterdam Convention, Article 11.

207

See POPs Convention, Article 1.

208

POPs Convention Annex B.

The Environment—Biodiversity • 79

and use of DDT for disease vector control is thus in accordance with the POPs Convention, if the intention of production and use is notified to the Secretariat and “[e]ach Party that produces and/or uses DDT shall restrict such production and/or use for disease vector control in accordance with the World Health Organization recommendation and guidelines on the use of DDT and when locally safe, effective and affordable alternatives are not available to the Party in question.”209 The notification of the Secretariat is subsequently written into a “DDT Register.”210 As mentioned above, only India and China currently produce DDT, but the convention is not clear on the issue if other parties wish to initiate production of DDT for disease vector control, i.e., malaria, under the above conditions. The convention is, however, clear on how to manage subsequent notifications that, in return, will be added to the DDT Register. Because the convention is silent on the issue, it probably means that in the—almost unthinkable—situation where a party wishes to engage in production of DDT, nothing prevents it from doing so, but that the party, along the lines of subsequent notifications of use, notifies the Secretariat of its intent. The convention sets out specific rules for both export and import of POPs. Import is legal if it is for use or purposes allowed by the convention; i.e., DDT can only be imported for disease vector control.211 Moreover, import is legal if it is for the purpose of “environmentally sound disposal.”212 In all other circumstances, import is prohibited. This means that the POPs Convention does not ban import from non-parties. As for exports, the parties are limited to only exporting the POPs to other parties that are allowed to import the POP; for “environmentally sound disposal”; or to non-parties that are certified to be allowed to import the POP in accordance with the convention.213 Observance of the Rotterdam Convention regarding PIC is, moreover, a criterion for export of a POP.214

209

See POPs Convention Annex B, Part II, paras. 1 and 2.

210

See POPs Convention Annex B, Part II, para. 1.

211

See POPs Convention Article 3:2(a)(ii).

212

See POPs Convention Article 3:2(a)(i).

213

See POPs Convention Article 3:2(b).

214

See id.

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15 CONCLUSION AND SUMMARY Based on the analyses in this chapter, certain observations can be summed up regarding environmental protection of animals. Environmental protection of animals is part of biodiversity protection, because animals form part of biodiversity. Biodiversity protection of animals illuminates that the emphasis on the environmental protection of animals is on the species—and the prevention of rendering a species extinct. On that background, it is easy to understand that the primary protection of species within the realms of the environmental area is that of endangered species. Environmental protection of animals is in this book defined as the protection of a species, where animal welfare protection is that of the individual specimens. There are, however, certain gray areas for the protection of species that are not endangered. Regarding the protection of endangered species, there is no umbrella, hard law convention, that provides for the allround protection of endangered species. Rather, protection of species is laid down in several conventions, which, inter alia, limits the sovereignty of a country to exploit these species as part of their natural resources. Protection of species encompasses many different aspects depending on which species is sought to be protected. Generally, wild animals need their natural habitat to exist and breed. Moreover, if the species is migratory, it needs to have a safe route to migrate on. Some species are vulnerable to taking, whether purposeful or incidental. The biggest conventions within each area of protection are as follows. CITES protects endangered species from trade, but it does not protect the species from, e.g., taking. The Bonn Convention only covers migratory species, but those species that are endangered and migratory are, under this convention, protected in a more all-round fashion than that of the CITES, because this convention also includes habitat protection and protection from taking. Other conventions aim solely at protection of habitats of endangered species but do not protect the species themselves. The analyses, moreover, concluded that albeit the concept of common concern generally is viewed upon as qualifying the unlimited sovereignty to exploit its natural resources, this might nevertheless not have any effect in practice, because there may not be any customary obligation to protect endangered species. The world community may have an interest or a common concern in the survival of species, and the treaty obligations to protect the species may be owed erga omnes partes, but that does, most likely, not qualify the protection as being a customary rule. If any customary rules

The Environment—Biodiversity • 81

should be said to exist in relation to the protection of endangered species, it is not those that cut to the heart of national sovereignty and, e.g., mandate setting aside a part of the territory for national parks as habitat protection. It is more likely that the creation of domestic negative obligations, such as prohibition of trade in endangered species or parts thereof, could be argued to be customary rules. Finally, the analyses illuminated a different type of environmental protection, which indirectly protects wildlife, namely the issue of banning DDT, because it is dangerous to both the environment and humans. The analysis concluded that principles in customary law may indicate that DDT is illegal, because it causes damage beyond national borders, including those areas beyond national jurisdiction. The issue is nevertheless not solved by customary rules but rather by two UNEP treaties curbing dangerous substances. DDT and its relation to the bio-accumulation in polar bears is a different type of environmental protection. This policy is, moreover, in direct opposition to the policy of protecting human health in Africa, where DDT is utilized to curb malaria.

CHAPTER 5

ANIMAL WELFARE There is not a moving (living) creature on earth, nor a bird that flies with its two wings, but are communities like you. We have neglected nothing in the Book, then unto their Lord they (all) shall be gathered.1 1

INTRODUCTION

This chapter focuses on animal protection (specimen protection), which is not environmental protection of animals (species protection). The chapter is by no means an exhaustive description of specimen protection, but a series of examples chosen mainly due to their trade related nature, which can generate illustrative examples in the WTO analysis in Chapter 8, Section 8. It is important to note that animal welfare discussions unfortunately often are sparked by an arising awareness of animal cruelty. The following citation makes it abundantly clear that one needs an advanced developed sense of imagination to find relevant animal cruelty examples: “Exploitation of animals occurs throughout the world and the reasons are varied. They include the need for food, for clothing and medicines. The quest for knowledge in basic research requires animals and they are also exploited for sport, for exhibition and for companionship.”2 Hence, unlike species protection, specimen protection issues forces people to consider—on a personal level—where his or her limits are regarding abuse or neglect of animals; i.e., what do I think is ok—what is not—and why are questions that will penetrate nearly all analyses in this chapter. 1.1 Legal Status of Animals—Animals Are Items The legal status of animals needs to be fully understood in order to comprehend how animals are protected and how they can be protected;

TRANSLATION OF THE MEANINGS OF THE NOBLE QUR’AN IN THE ENGLISH LAN6:38 (tran. Dr. Muhammad Taqî-ud-Dîn al-Hilâlî & Dr. Muhammad Muhsin Khân, King Fahd Complex for the Printing of the Holy Qur’an) [hereinafter THE KORAN]. 1

GUAGE

D.B. Wilkins, The Expectations of the International Animal Welfare Movement, in PROGLOBAL CONFERENCE ON ANIMAL WELFARE: AN OIE INITIATIVE (Paris, Feb. 23–24, 2004) available at http://www.oie.int [hereinafter PROCEEDINGS], 69, 69. 2

CEEDING OF THE

83

84 • The WTO, Animals and PPMs

animals are “items,” i.e., private property.3 From this notion, it follows that wild animals are the property of whomever the laws of the country allow to catch them (dead or alive), and animals in common spaces can be caught by anyone with very few limitations.4 1.1.1

Can Animals Have Standing in Cruelty or Neglect Cases?

The most prevailing legal order is that items cannot have rights or obligations. This means the obligation put on humans to protect animals does not per se give animals a correlative “right” as a legal subject, i.e., a capacity to sue or be sued. Animal welfare protection is therefore an anthropocentric concept in the sense that the “obligation” is put on humans to act or refrain from acting in a certain manner in relation to animals. When a violation of an animal welfare rule occurs, it is the authorities that will bring a case against the person who neglected his or her responsibility to animals. In the United States, animal rights organizations may have standing to sue the authorities for not protecting animals, if the activists themselves suffered injury from observing this (and not if the animals suffered).5 This reasoning relies on the notion that there are certain standards of behavior that people must live up to in order not to offend others, such as indecent exposure. Consequently, if an animal is mistreated, but it was not directly witnessed, it is hard to guess whether a U.S. court will stretch the reasoning to include the notion of being “offended” by the mere “knowledge” that an animal was mistreated, e.g., a dog brought into a clinic with cigarette burn marks or the like. Theoretically, the authorities should be able to “catch” all those situations, but there are people who advocate that statutes to protect animals should be amended so as to grant private cause; i.e. let private parties sue the animal mistreater in the event the authorities fail to do their job.6

3 See, e.g., MADS BRYDE ANDERSEN, PRAKTISK AFTALERET 162 (Gjelleup, 2d ed. 2003); Vagn Greve, Om Kålorm og Andre Voldsmænd, Tyve og Røvere, in KRIMINALISTIST ÅRBOG 1998 93, 96 (University of Copenhagen); JOSEPH LOOKOFSKY, KØB: DANSK INDENLANDSK KØBSRET 67 (Jurist- og Økonomforbundets Forlag, 2d ed., 2002); VIBE ULFBECK, ERSTATNINGSRETLIGE GRÆNSEOMRÅDER, PROFESSIONSANSVAR OG PRODUKTANSVAR 164 (Jurist- og Økonomforbundets Forlag, 2004). 4 See PETER PAGH, MILJØ ANSVAR EN RET FOR HVEM 136 (Jurist- og Økonomforbundets Forlag, 1998), who describes how wild animals are res nullius and belongs to the one who catches it. 5 See, e.g., Rob Roy Smith, Standing on Their Own Four Legs: the Future of Animal Welfare Litigation After Animal Legal Defense Fund, Inc. v. Glickman, 29 ENVTL. L. 989 (1999). 6 See, e.g., Cass R. Sunstein, A Tribute to Kenneth L. Karst: Standing for Animals, 47 UCLA L. REV. 1333, 1336 (2000).

Animal Welfare • 85

Whether animals in fact can have independent rights and standing is, however, subject for academic discussion. The most famous example of promoting the idea of independent standing to animals was put forth by Stone in the 1970s.7 In Sierra Club v. Morton, Justice Douglas, in a dissent, accepted the view and cited to Stone.8 The reactions to this were put forth with humor: If Justice Douglas has his way— O come not that dreadful day— We’ll be sued by lakes and hills Seeking a redress of ills. Great mountains peaks of name prestigious Will suddenly become litigious. Our brooks will babble the courts, Seeking damages for torts. How can I rest beneath a tree If it may soon be suing me? Or enjoy the playful porpoise While it’s seeking habeus corpus? Every beast within his paws Will clutch an order to show cause. The Courts, besieged on every hand, Will crowd with suits by chunks of land. Ah! But vengeance will be sweet

7

See CHRISTOPHER STONE, SHOULD TREES HAVE STANDING? vii (1996).

8

See Sierra Club v. Morten, 405 U.S. 727 (1972).

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Since this must be a two-way street. I’ll promptly sue my neighbor’s tree For shedding all its leaves on me.9 Technically, the crux of the issue in question stems from the perception that a legal obligation (i.e., the obligation to protect the animal) must be accompanied by a correlative legal right—in other words, whether the obligation to protect animals automatically gives the animal the capacity to sue or to be sued. The prevailing legal order is that the obligation to protect the animals is not accompanied by a correlative right belonging to the animal, and, most often, there are no such correlative rights. The key to understanding this is that “items” cannot be parties in judicial proceedings, but they can be the object of a case.10 In comparing the issue to that of a child, it must be understood that a child is a human being and can be a party in a judicial proceeding; i.e., humans (including children) can be legal parties as subjects of a case. Attaching rights to animals thus means a change in legal systems so that animals can be a party in a judicial proceeding and have their rights exercised by their legal guardians. To my knowledge, a country is yet to grant such rights to animals, albeit it is argued that especially great apes should have this legal capacity.11 1.1.2

Exception: Animals as “Wrong Doers”

It should, however, be noted that animals, under certain circumstances, can possess the status of a “wrong doer.” The former Dean of the University of Copenhagen, Faculty of Law, Vagn Greve, has posited that in self-defense situations, the animal may have the ability to act “wrongfully,” along the lines of humans in order to, e.g., defend the criminal act of destroying another man’s expensive property, e.g., where you need to kill a pure bred dog if it, of its own free will, attacks your own little mixed-breed dog.12

9

John Naff, 58 A.B.A. J. 820 (1972) (cited from STONE, supra note 7, at xi.

But see Søren Stig Andersen, Dyrs Rettigheder, 7 JURISTEN 249, 249 (1998), who claims that animals can have standing along the lines of children. Apart from children, corporations and slaves has equally been mentioned as other instances where a case could be brought by utilization of a guardian, see Adam Kolber, Standing Upright: the Moral and Legal Standing of Humans and other Apes, 54 STAN. L. REV. 163, 196–97 (2001). 10

11

See e.g., Kolber, supra note 10, at 198.

12

See Greve, supra note 3, at 97.

Animal Welfare • 87

In the more humorous area of analogizing animals to humans, numerous historical examples of rendering judgments against them are known; in 1806 rats were summoned to leave the Danish island of Lyø “like violent persons, thieves and robbers” would be.13 The historical records did not reveal whether the rats actually left the island as intended! 1.1.3

International Law

For purposes of international law—and the analyses in this book—it is important to note that national rules of standing are irrelevant, because international law, in general, and trade law, in particular, focus on the relationships between the states and not individuals (or items). The issue of standing is therefore only touched upon to further the understanding of animal welfare issues. 2

INTRODUCTION TO ANIMAL WELFARE

As noted in Chapter 4, environmental protection of animals primarily stems from anthropocentric considerations; i.e., it benefits humankind to preserve biological diversity. Those areas of animal welfare law, which attach to the obligation to treat animals nicely because it is the “moral” obligation for mankind to do so, are also anthropocentric. The “moral” component of animal welfare laws stems primarily from ethics, religion, culture, morals, etc.14 Chapter 4 equally illuminated that animals in international environmental law are only protected as an entire species or a sub-group of a species and, by and large, only if they are endangered—meaning that the general welfare or dangers to the individual specimens are not included in environmental protection of animals. Conversely, the concept of animal welfare, as understood in this book, is based on the emotional, ethical, religious, etc., arguments claiming that it is simply wrong to subject animals to unnecessary suffering or stress, e.g., by moving them out of their natural habitat. This is a focus on the individual specimens and their welfare. An illustrative example of an animal welfare concern is the killing of a cow for consumption. Animal welfare concerns regarding cows are thus not aimed at whether it is morally acceptable to kill the cow—the societal understanding is, e.g., in Denmark, that humans eat cows, and they thus do not have a “right to life.” The cow will die either way, but whether it will die 13

See id. at 94.

See, e.g., A.B.M. Raj, Cultural, Religious and Ethical Issues Associated with Animal Welfare, in PROCEEDINGS, supra note 2, at 235, 235–39. 14

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fast and with little pain or a slow torturous death is a question of animal welfare considerations. 2.1 Some of the Animals Are Protected in Some Societies One thing that is important to understand is that there is no logical manner for categorizing the motivation behind the animal welfare concerns. Some animals may have certain characteristics that make them special, not because they are endangered, but because humans like these types of animals. Examples of liked animals are charismatic mega fauna, such as the big African mammals: elephants, lions, giraffes, etc. Another way of choosing among animals could well be that, e.g., monkeys are similar to humans. Moreover, humans have traditionally loved aquatic mammals; what child has not loved the television series about the sweet dolphin Flipper, or who has not secretly dreamed of swimming with dolphins on a tropical vacation? There is, however, no rational systematic way of categorizing animals that deserve extra protection because we like them. One way of “prioritizing” animals could have been that mammals hold larger leverage because we, the humans, indeed are mammals as well. Mice, unfortunately for this definition, are mammals too—and in most cultures they are killed if they are found in our crops or in our houses. Rats are usually considered very unattractive even though they are mammals—whereas monkeys and dogs are loved in most societies. It is, moreover, interesting to observe which animals are utilized as food in different cultures, such as frogs in France, dogs and mice in China, etc.15 These examples illuminate the big differences in the manner in which different cultures perceive different animals; where dogs are loved as pets in the West, they are the primary source of protein in Southern China.16 2.2 Feelings or Science Another important issue relating to animal welfare is the issue of what the standard is for animals’ well-being. Should the welfare be guided by sci-

15 See Franz From, Et Stykke Med Mus, July 26, 1964, POLITIKEN, at Kronik (Den.) [hereinafter From, Mus]. 16 See Franz From, I Hong Kong Er Det Forbudt at Spise Hunde, in CARLSBERGFONDET, FREDERIKSBORGMUSEET, NY CARLSBERGFONDET ÅRSSKRIFT (1978) [hereinafter From, Hong Kong].

Animal Welfare • 89

ence; i.e., should veterinarians set the standards of what is “acceptable” for the animals’ health? Or should it be an issue of “feelings?” Wilkins from the International Coalition for Farm Animals illuminates the issue as follows: Science can tell you a great deal about the physical state of animals and, arguably, to a lesser extent, about their mental state. But is science enough to decide, for example, whether it is acceptable to keep laying hens in an environment such as a battery cage or to keep a calf in a narrow pen in which it is unable to turn around . . . The question as to whether or not it is acceptable is often a matter of opinion. In Europe, at least, you would be prosecuted for keeping your pet dog in a veal calf crate but this veal production system remains legal until 2007.17 Wilkins illuminated that it makes a difference whether the focus is on the mental state or on the scientific health analysis of the animals. However, when referring to feelings and mental state, both the animals’ and the humans’ feelings and mental state can be discussed.18 In the final analysis, it will always be the humans’ perception of the animals’ feelings that is expressed, and it will moreover be the humans’ reaction to the perceived feeling of the animals, which is the decisive standard for man. When understanding these implications, it is also easy to understand how, e.g., Denmark and China cannot agree about standards for treatment of dogs; in China they eat dogs and in Denmark they are members of the family—often the most liked member. With this in mind, it is clear why international standards in the area of animal welfare are non-existent. 2.3 Human or Animal Focus? Another underlying theme to note when discussing animal cruelty— and animal welfare standards—is whether “we feel bad for the animal” or whether “it is degrading for humans” to be cruel or neglectful. Many people—perhaps even in many different cultures—may agree on animal welfare rules, but when confronted with why they do not want the dog to, e.g., freeze at night because it lacks a proper shelter to dwell in, they will divide 17 See Wilkins, supra note 2, at 69–70. See also D. Fraser, Applying Science to Animal Welfare Standards, in PROCEEDINGS, supra note 2, at 121, 122. 18 See, e.g., I.J.H. Duncan, Pain, Fear and Distress, in P ROCEEDINGS , supra note 2, at 163, 163, who attempts to define animal welfare as encompassing also the animals’ feelings.

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their arguments into two groups—the animal empathetic and the human dignity. Religious convictions regarding animals, by and large, center around the human dignity group. The animal empathetic group includes the belief of the animal experiencing feelings, such as fear, love or joy, in a comparable way to that of a human being. Therefore, it is not only horrendous to kick a dog because it is a low thing to do for a human being, but the dog can also feel the pain and fear in a comparable way to that of a human being. Finally, it should be emphasized that many people swing between the groups on different issues, and others simply encompasses both groups in their beliefs. 2.4 Developing Countries In Chapter 1, it was posited that in some developing countries, the priority of feeding your family is higher than saving Flipper from drowning in fishing nets. Moreover, some animals that we, in the Western world, have romanticized and domesticated as pets may not have the same status in certain developing countries. Finally, in developing countries it may be crucial to the survival of the family to have a “work” animal. The retired Dean of the Bangalore Veterinary College has categorized animal welfare issues relating to the developing countries into four categories: work animals; production animals (milk and meat); companion animals; and wild and captive animals, including animals used in entertainment.19 He posits that there is immense suffering of the work animals, who often are ill-fed, suffering from neck injuries, bruised due to whipping—and that the transportation and handling of animals destined for slaughter is equally brutal.20 While all four categories make many people really sad—in particular the dancing bears broadcast over Animal Channel—the treatment of animals in the West is, nevertheless, not “perfect.” In many instances, our animals destined for slaughter are also roughly treated, and the industrial manner in which we consider meat production cannot be said to be animal friendly. 2.5 Animal Welfare Laws As mentioned above, there is no legally binding “charter of animal rights,” but there is, nevertheless, a steadily growing body of non-binding 19 See S.A. Rahman (retired dean), Animal Welfare: A Developing Country Perspective, in PROCEEDINGS, supra note 2, at 101. 20

See id. at 102–03.

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NGO materials,21 and some international agreements on animal welfare do exist. It is, however, worth noting that the World Organization for Animal Health (hereinafter OIE—abbreviation of Office International des Epizooties) is considered to be the international standard-setting body for animal welfare.22 On a regional basis, the Council of Europe has adopted five conventions on the protection of animals: the European Convention for the Protection of Animals During International Transport, the European Convention for the Protection of Animals Kept for Farming Purposes, the European Convention for the Protection of Animals for Slaughter, the European Convention for the Protection of Vertebrate Animals Used for Experimental and Other Scientific Purposes and the European Convention for the Protection of Pet Animals.23 In relation to the ongoing WTO negotiations, animal welfare is addressed primarily in the agricultural area, where it is called “non-trade concerns.”24 “Non-trade concerns” in the agricultural areas are, however, not the same as barriers to trade in goods, as analyzed in this book. The issue of “non-trade concerns” in relation to the agricultural area is more related to state-sponsored programs on animal welfare, whereas this book

21 See PATRICIA BIRNIE & ALLAN BOYLE, INTERNATIONAL LAW & THE ENVIRONMENT 556 (2d ed., 2002). See also, e.g., World Small Animal Veterinary Association’s Convention for the Protection of Companion Animals, available at http://www.wsava.org/Conventi. htm. 22 See, e.g, A.C.D. Bayvel, The OIE Animal Welfare Strategic Initiative—Progress, Priorities and Prognosis, in PROCEEDINGS, supra note 2, at 13, 13. 23 See European Convention for the Protection of Animals During International Transport, Paris, Dec. 13, 1968, E.T.S. No. 65, at 103, 193, available at http://conventions.coe.int; European Convention for the Protection of Animals Kept for Farming Purposes, Strasbourg, Mar. 10, 1976, E.T.S. No. 87, at 145, available at http://conventions.coe.int; European Convention for the Protection of Animals for Slaughter, Strasbourg, May 10, 1979, E.T.S. No. 102, available at http://conventions.coe.int; European Convention for the Protection of Vertebrate Animals Used for Experimental and Other Scientific Purposes, Strasbourg, Mar. 18, 1986, E.T.S. No. 123, at 170, available at http://conventions.coe.int; European Convention for the Protection of Pet Animals, Strasbourg, Nov. 13, 1987, E.T.S. No. 125, available at http://conventions. coe.int. 24 See Agreement on Agriculture, Apr. 15, 1994, WTO Agreement Annex 1A, Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 1125 (1994) [hereinafter the AoA], Article 20; Doha Ministerial Declaration, para. 13. See also Summary Report of the Eighteenth Meeting of the Committee on Agriculture Special Session Mar. 13, 2003, TN/AG/R/8, July 8, 2003, 56; Negotiations on Agriculture, Report by the Chairman, Mr. Stuart Harbinson, to the TNC, TN/AG/10, July 7, 2003.

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deals with trade barriers in the form of obstruction of market access, which, generally speaking, are total bans or bans of production methods. 3

TRADE-RELATED ANIMAL WELFARE MEASURES

The following are examples chosen to illuminate the complex area of trade-related animal welfare measures. The examples, furthermore, illuminate that the different norms to secure animal welfare stem from different approaches to the animal, which leads to different “levels” of protection.25 3.1 Slaughter of Animals Nowadays, it is required that animals be slaughtered in a sanitary manner. This means that the meat is kept as clean as possible, in order to ensure the consumers’ safety. The manner in which the animal is slaughtered, nevertheless, becomes an animal welfare issue, when it regards the issue of the pain inflicted by the slaughter method; i.e., to put it boldly, whether it is legal to kill a cow by cutting its legs off first. The link to trade comes into play when a country (or a group of countries) decides that it will only allow meat from animals that were treated in a certain humane manner before or during slaughter, i.e., until the moment the animal died. The European Convention for the Protection of Animals for Slaughter was made with two purposes in mind; first and foremost, to protect the slaughter animals from suffering; and, secondly, to ensure good meat quality by avoiding suffering of the slaughter animals. This convention lays down the most fundamental rules for humane treatment of slaughter animals: not lifting animals by the head, feet or tail; not breaking or crushing the tails or grasping their eyes; not kicking or hitting the animals; not throwing boxes containing animals to the ground or knocking them over, etc.26 While the convention lays down standards for humane treatment of animals for slaughter, it has no clause stating that trade with non-signatories or countries not living up to the standard dictated by the convention is forbidden. The convention could, however, be utilized to argue the legality of a trade measure taken by one country against another country that did not live up to the standard laid down in the convention. This argument would, however, hold the most leverage, if the measure is taken against another signatory to the convention. See, e.g., H. Wyss et al., Animal Welfare: Between Profit and Protection, in PROCEEDINGS, supra note 2, at 207, 207–10, where the example of the very high standard of Swiss animal welfare laws is illuminated. 25

26 See European Convention for the Protection of Animals for Slaughter, Strasbourg, May 10, 1979, E.T.S. No. 102, available at http://conventions.coe.int, at Articles 4 and 5.

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3.1.1

Protection of Unborn Fetuses in Relation to Slaughter

Another example of an animal welfare concern, in relation to slaughter, is the interesting debate regarding slaughtering of pregnant production animals and horses in Denmark. The debate resulted in a law prohibiting slaughter of the pregnant animals—albeit with certain exceptions—in 2004.27 The law aims at the protection of the unborn animal in the last tenth of the pregnancy period—probably because the fetus, at that state, often is viable. The law was put forward to avoid the fetus dying by drowning when the mother animal is killed.28 The law does not recognize any “right to life” for the unborn fetus, but it does recognize that in the last tenths of the pregnancy period, the viable fetus must not be subjected death by drowning in the mother’s womb. The fetus/baby animal must, however, be killed independently or, if viable, it can be “cut out” and live.29 This law does not have a direct trade link, but it was included to illuminate the variety of issues discussed in relation to humane slaughter issues. 3.1.2

Religious Slaughter

The most well known—and perhaps oldest—examples of both animal welfare and sanitary concern, in relation to slaughter, are found in Judaism and Islam, i.e., the Kosher and Halal rules. Judaism and Islam mandate religious slaughter of animals, which has direct trade effects. The trade effects of Kosher and Halal are that certain countries wish to only import Kosher or Halal certified meat. Islam and the Halal rules are introduced first, despite the fact that Islam arose as a religion after Judaism. This is mainly due to the manner in which the religious approach to food is described in various citations of the Koran, which lay the foundation for understanding the concept of religious food and slaughter method as it is equally understood in Judaism. 3.1.2.1 Islam and Halal It has been claimed that there is no religion without compassion for animals.30 Islam is no exception to this rule; rather, it is a religion, which has teachings of compassion and respect for animals. In particular one 27 See Lov om forbud mod slagtning og aflivning af drægtige produktionsdyr og heste i den sidste tiendedel af drægtighedsperioden, L 174 of Apr. 15, 2004 (Den.). 28

See Minister of Justice, Lene Espersen’s written proposal for L 174 of Feb. 25,

2004. 29

See L 174, supra note 27, § 2.

30

See Raj, supra note 14, at 235, 238.

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verse of the Koran illuminates this: “There is not a moving (living) creature on earth, nor a bird that flies with its two wings, but are communities like you. We have neglected nothing in the Book, then unto their Lord they (all) shall be gathered.”31 Moreover, the Koran explicitly denounces animal cruelty and names it the work of the Devil: Allâh cursed him. And he [Shaitân (Satan)] said: ‘I will take an appointed portion of your slaves. Verily, I will mislead them, and surely, I will arouse in them false desires; and certainly, I will order them to slit the ears of cattle, and indeed I will order them to change the nature created by Allâh.’32 Halal is the word that is used in relation to the meat Muslims are allowed to eat. Halal actually means “legal” or “lawful.”33 The Halal slaughter method, apart from health and sanitary concerns, also has its outset in the concern for the animal. The teachings by the late Imam B.A. Hafiz al-Masri of the Shah Jehan Mosque in Woking, United Kingdom, evidences modern animal welfare concerns, although these views may not necessarily be recognized by many Muslims: If animals have been subjected to cruelties in their breeding, transport, slaughter, or in their general welfare, meat from them is considered impure and unlawful to eat (haram). The flesh of animals killed by cruel methods (Al-Muthiah) is carrion (Al-Mujathamadh). Even if these animals have been slaughtered in the strictest manner, if cruelties were inflicted on them otherwise, their flesh is still forbidden food (haram).34 As to the origins, the notion of lawful or legal food is found in the Koran: O you who believe! Make not unlawful the Tayyibât (all that is good as regards foods, things, deeds, beliefs, persons) which Allâh has

31

THE KORAN, supra note 1, at 6:38.

32

Id. at 4:118–119.

See, e.g., ALI PETER NICOLAISEN, HALAL GUIDE—EN VEJLEDNING I MUSLIMSKE KOSTREGLER 7 (Alif Bogforlag, 1999) [hereinafter HALAL GUIDE]. 33

34 Teachings, available at http://www.islamicconcern.com/halalmeat_teaching.asp. For more teachings on animals, see, e.g., Prophet Muhammad, A Mercy for all Creatures, available at http://www.alinaam.org.za/library/pmercy3.htm.

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made lawful to you, and transgress not. Verily, Allâh does not the transgressors. And eat of the things which Allâh has provided for you, lawful and good, and fear Allâh in Whom you believe.35 A more detailed description of things that are prohibited to eat—and certain things that are legal—is also laid down in the Koran: Forbidden to you (for food) are: Al-Maitah (the dead animals—cattle—beast not slaughtered), blood, the flesh of swine, and that on which Allâh’s Name has not been mentioned while slaughtering, (that which has been slaughtered as a sacrifice for others than Allâh, or has been slaughtered for idols) and that which has been killed by strangling, or by a violent blow, or by a headlong fall, or by the goring of horns—and that which has been (partly) eaten by a wild animal—unless you are able to slaughter it (before its death). . . . They ask you (O Muhammad) what is lawful for them (as food). Say: “Lawful unto you are At-Tayyibât [all kinds off Halâl (lawful-good) foods which Allâh has made lawful (meat slaughtered eatable animals, milk products, fats, vegetables and fruits)]. And those beasts and birds of prey which you have trained as hounds, training and teaching them (to catch) in the manner as directed to you by Allâh; so eat of what they catch for you, but pronounce the Name of Allâh over it, and fear Allâh. Verily, Allâh is Swift in reckoning.”36 More specifically, the slaughtering rules, the Halal slaughtering (Dhabh), inter alia, aim at draining the “illegal” blood37—and Allâh’s name must be said over the animal.38 The slaughtering itself must be done with a very sharp knife cutting the throat of the animal in one movement.39 Moreover, several additional teachings of humane treatment of the animal are also given in the Halal Guide:

35

THE KORAN, supra note 1, at 5:87–88.

36

Id. at 5:3–4.

37

See id. at 2:173, 6:145.

38

See, e.g., id. at 6:118.

39

See, e.g., HALAL GUIDE, supra note 33, at 33.

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• • • • • • • • • •

The animal must not be transported in a cruel manner; it must not be pushed or dragged to the place of slaughtering. It is preferable that the animal is fed and watered before slaughtering. The animal must be laid down as carefully as possible. The animal must not have its eyes covered. An animal must not see another animal being slaughtered. When the next animal in line is brought in, all blood from the former animal must have been washed away. The knife must not be sharpened in front of the animal. The animal must be slaughtered fast and professionally. The animal must not be skinned or injured as long as there is any kind of movement of the animal. The knife must be so sharp that it can cut in one movement.40

3.1.2.2 Judaism and Kosher The Torah also includes many stories of compassion for animals;41 e.g., in Genesis where Abraham sent a servant out to find a wife for his son, Isaac, the woman, Rebecca, distinguished herself by being kind to the animals, when she said: “I will draw water even for your camels until they have finished drinking.”42 Kosher is the Jewish counter-part to Halal, and, just as well as modern Muslims question Halal, modern Jews question whether the rough treatment of animals before slaughter has the consequence that the meat cannot become Kosher—even if they are slaughtered according to the religious rituals.43 Today, Judaism, Islam and Christianity have many faithbased vegetarians.44 Jews often put emphasis on the fact that while in the Garden of Eden, mankind was vegetarian—and it was at a later state that God allowed man to eat flesh.45 The following passages illuminate this: 40 See id. at 31–32. See also, e.g., http://www.ummah.net/islam/taqwapalace/ecostory.htm. 41 For a thorough analysis of the Torah, Talmud and other teachings, see, e.g., http:// www.jewishveg.com/index.html. 42 See THE STONE EDITION TANACH Genesis 24:1–20 (Rabbi Nosson Scherman ed., 1st ed., ArtScroll Series, 1999) [hereinafter THE TORAH]. 43 See, e.g., Phineas E. Leahey, Jewish Ethics and Mandatory Vegetarianism, available at http://www.ivu.org/religion/articles/jewish.html. 44 See, e.g., http://www.jesusveg.com; http://www.christianveg.com; http://www.jewishveg.com; http://islamicconcern.com; http://www.ivu.org/religion/. 45

See, e.g., http://www.jesus-online.com/jewish.html.

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God said, “Behold, I have given you all herbage yielding seed that is on the surface of the entire earth, and every tree that has seedyielding fruit; it shall be yours for food. And to every beast of the earth, to every bird of the sky, and to everything that moves on the earth, within which there is a living soul, every green herb is for food.” And it was so.46 The Kosher rules, which, inter alia, consist of rules regarding eating only certain animals and not blood, came into existence after Noah’s Ark,47 where God said: God Blessed Noah and his sons, and He said to them, ‘Be fruitful and multiply and fill the land. The fear of you and dread of you shall be upon every beast of the earth and upon every bird of the heavens, in everything that moves on earth and in all the fish of the sea; in your hand they are given. Every moving thing that lives shall be food for you; like the green herbage I have given you everything. But flesh; with its soul its blood you shall not eat.48 Even later, at the time of Moses, God explained which animals could be eaten: Hashem spoke to Moses and to Aaron, saying to them. Speak to the Children of Israel, saying: These are the creatures that you may eat from among all the animals that are upon the earth. Everything among the animals that has a split hoof, which is completely separated into double hooves, and that brings up its cud—that one you may eat.49 In the Kosher rules, the separation of dairy products and meat is often cited as showing respect for animals in the manner: “you shall not cook a kid in its mother’s milk.”50 The specifics regarding the slaughter method are very similar to Halal. The animal must be killed with a sharp knife cutting the throat in one movement; it must be blessed by a rabbi; and drained from blood.51 46

THE TORAH, supra note 42, at Genesis 1:29–30.

47

See id. at Genesis 8–9.

48

Id. at Genesis 9:1–4.

49

Id. at Leviticus 11:1–4. See also, id. at Deuteronomy 14:3–21.

50

See id. at Deuteronomy 14:21. See also id. at Exodus 23:19, 34:26.

See, e.g., http://www.faqs.org/faqs/judaism/FAQ/04-Observance/section-25.html; http://www.halalfoodnet.com/kosher.htm. 51

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3.1.3

Transportation of Animals Destined for Slaughter

Halal and Kosher represent the historical concern for the animals, where the manner in which the animals were slaughtered was the most pressing issue when considering the pain inflicted on the animals. Today, the slaughtering itself appears to be the least of the evils inflicted on the animals. More concern is thus directed at the other evils, such as farm factories with poor conditions for the animals,52 cannibalism, where the feedstuff includes bone meal of the animals’ own species (often fed to vegetarian animals),53 long and stressful transportation, etc. To generate a useful example, transportation of animals destined for slaughter is an easy topic to understand. Obviously, many factors can stress animals during transportation, but, to keep the example simple, the time factor is chosen in this example.54 In Denmark, the animal welfare groups have recently collected half a million signatures for the Agricultural Minister to present in the EU during negotiation of common maximum time for transportation of animals destined for slaughter.55 In Denmark, these groups lobbied for a maximum of eight hours in order to avoid shipment of animals from Denmark to Southern Europe, which causes severe suffering and eventually death for many animals.56 In Australia, however, the issues are much more severe than in Europe; Australian sheep are often being transported all the way to the Middle East, which is a two-week journey by ship.57 In 2003 the Dutch ship, the Cormo Express, was bound for Saudi Arabia with 57,000 sheep from Australia; unfortunately for the sheep, the Saudi authorities turned away the ship, claiming that some sheep had scabby mouth disease.58 After cruising 52 See, e.g., P. Le Neidre et al., Space, Environmental Design and Behaviour: Effect of Space and Environment on Animal Welfare, in PROCEEDINGS, supra note 2, at 135, 135–41. 53 See, e.g., Licia Corbella, Blame Canada’s Cattle Cannibalism, CALGARY SUN (Alta., Can.), Jan. 8, 2004, available at http://www.organicconsumers.org; Meghan Cox-Gurdon, Feed Live Cows With Dead Cows? Yuck, NAT’L POST (Can.), Mar. 20, 2001, available on http://www.commondreams.org. 54 For an overview on animal transport, see, e.g., J.A. Mench, Managing, Handling, and Transport of Farm Animals, in PROCEEDINGS, supra note 2, at 149, 151–53. 55 For an overview over the campaign, see http://www.max8timer.dk. See also, EU Vil Tillade Længere Transporttider for Dyr, POLITIKEN (Den.), Mar. 30, 2004, available at http://www.politiken.dk. 56

See generally http://www.eurogroupanimalwelfare.org; http://www.max8timer.dk.

57 See, e.g., Susanna Lobez, Scabby Deal on Sheep, SUNDAY HERALD SUN (Austl.), Nov. 2, 2003, at EXTRA 87. 58 See, e.g., id.; Saayed Azim, Eritreans Unload Thousands of Australian Sheep that had been Stranded at Sea for Months, ASSOC. PRESS, Oct. 25, 2003, at International News.

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around for 11 weeks with no port of destination, the sheep were unloaded in Eritrea; but, by this time, more than 5,000 sheep had died.59 This incident sparked the Australian Federal Agriculture Minister, Warren Truss, to enact more stringent export controls for live exports, albeit they are by no means prohibited.60 Perhaps veterinarians could set up standards for how transport should be conducted to stay below a certain acceptable death rate; but this death rate may, nevertheless, be too high for certain cultures—recalling that animal welfare is not per se a scientific discipline, but is more an issue of “feelings.” The higher standard of what Danish people view as acceptable is thus not a scientifically verifiable standard where, e.g., seven hours can be verified as better than eight hours. Rather, it is an amount of hours that appears reasonable in our part of the world and that the population can accept. During these eight hours, Danes expect that the animals are kept warm and safe and that these cute cows or pigs in issue can mentally and physically sustain this amount of transport. When compared to how Danes, e.g., transport dogs and horses, the conditions for animals destined for slaughter appear almost cruel; competition horses are transported in horse trailers with air conditioning, their favorite food, a warm wool cover, and the driver usually stops every hour to pet the horse; the dogs, for the most part, sleep on the lap of one of the passengers in the car. 3.2 Fur Animals There has been—and still is—heated debate regarding whether humans should wear furs.61 The debate, however, often lacks the element of whether humans should wear leather shoes, belts, handbags, purses, etc.62 Perhaps the debate regarding furs is influenced by the fact that these are often luxury items, such as expensive mink coats, and that the meat from the animal is not eaten. Fur coats from Greenland are probably pop59

See, e.g., id.

60 See, e.g., Shane Wright, Fed: Govt to Re-Regulate Live Exports in Face of Community Fears, AAP NEWSFEED, Mar. 30, 2004, at Domestic News, Canberra. 61 See, e.g., http://www.furisdead.com; http://www.thepetitionsite.com; http://www. idausa.org/facts/furfacts.html; http://www.prijatelji-zivotinja.hr/indexen.html (Croatian Animal Rights and Welfare Organization). 62 Although certain groups and individuals have adopted the more general vegan approach, see, e.g., Ginia Bellafante, Clothing the Vegan Star, N.Y. TIMES, Aug. 19, 2003, at B1, Metropolitan Desk, Fashion Page 8; Kevin Toolis, In for the Kill; Is Human Life of Greater Importance and Worth than Animal Life? On the Fanatical Finges of the Animal-Rights Campaign, the Answer is Simple—No. And Letter-Bombings and Arson Attacks are just Two of the Methods they Might use to Convince You of their Case. Kevin Toolis Joins the Front Line of one of Britain’s Most Violent and Angry Protest Movements, GUARDIAN (LONDON), Dec. 4, 1998, The Guardian Weekend 8.

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ular because the Greenlanders utilize the entire seal and thereafter sell the fur.63 The debate is, nevertheless, still based on peoples’ feelings regarding the difference in killing an animal to have a beautiful coat or a good meal. 3.2.1

Fur from Cats, Dogs and Baby Seals

The animals discussed in this section have a few things in common: they all have cute appearances, and inhumane killing methods have been reported in relation to utilizing them in the fur industry, which resulted in legislative responses.64 3.2.1.1 Cats and Dogs Wearing furs and pelts from our pets poses the question of where to draw the line of what is acceptable in a society and what is not. Most people would probably contend that it is unacceptable to wear furs from our pets—almost on the level that we do not wear human skin either. Other people may approach this issue in more cynical or realistic ways, depending on the point of view, suggesting that all animals are on the same level. Yet again, others may find it immoral, based on the argument that furs should only be allowed if they originate from an animal that is also eaten. Different cultures, however, eat different animals65—in China, they eat dogs!66 Therefore, when one country draws the line and prohibits furs from cats and dogs, based on the fact that these animals are our indoor pets and almost family members, this argument may not be understood in another. In Denmark, a law has recently been passed that prohibits import and production of pelts and furs from cats and dogs.67 The law was passed after most of the nation watched a documentary showing cats and dogs skinned

63 For a more thorough discussion of seal fur, see, e.g., http://www. furcommission.com/resource/perspect999al.htm. 64 This is by no means an exhaustive analysis or outline of all the legislative responses in the world; rather a small number of laws are introduced to generate understanding of the issue and to generate realistic examples for the WTO analysis. 65 See From, Hong Kong, supra note 16, where it is illuminated, through psychological analysis, why certain cultures utilize different types of animals as food sources, such as dogs in China; From, Mus, supra note 15. See also Raj, supra note 14. 66 See From, Hong Kong, supra note 16, where he explains that the British influence caused the ban on eating dogs in Hong Kong in the 1950s, but the Chinese population did not change their attitude toward eating dogs due to the law. 67 See Lov om forbud mod erhvervsmæssig indførelse og produktion af samt handel med skind og skindprodukter fra hunde og katte, L 201 of May 13, 2003 (Den.).

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alive in certain Asian countries for exports to, inter alia, Denmark to suit the fashion trend of little furs on sleeves and collars of women’s clothing.68 Whether the law is passed based on the notion that these animals should be killed before skinning them (a thought that is so old that it is evidenced in the interpretations of Halal rules), or whether it is the notion that we should not “wear” our pet-family members, makes a difference when analyzing the trade impact in a potential WTO conflict. This particular difference is analyzed in Chapter 9. The Danish law prohibiting import and production of furs from cats and dogs was, according to the negotiating history of the law, aimed at curbing animal cruelty abroad and preventing Denmark from being an accessory, after the fact, by using products stemming from animal cruelty.69 While the law could have been designed solely to prohibit the furs stemming from “skinned alive” cats and dogs—or animals in general—the law was designed to prohibit all domestic production of furs from cats and dogs and all import thereof.70 This illuminates that it was not only the animal cruelty the politicians wanted to stop, but rather the entire notion of furs from cats and dogs. 3.2.1.2 Baby Seals (Pups) The issue of baby seals arose in the 1970s and 1980s when pictures of clubbed baby seals from Canada surfaced.71 As opposed to the recent resurfacing of these images of the clubbed pups, which Canada justifies as a measure taken to sustain fisheries, the initial clubbing was aimed directly at the expensive trade in beautiful and soft white furs.72 The issue probably received attention for two reasons; firstly, baby seals have cute and helpless appearances; and, secondly, clubbing them in the heads with baseball bats, with the sole purpose of stealing their fur, appeared violent and inhumane. Newspaper articles with vivid explanations of the cries uttered by the seals when they are clubbed in the head with baseball bats, including the accom-

68 The negotiating history reveals that the documentary “Skinned Alive” showed on Danish TV2 was cited in the debate. See 1st Reading of L 210. 69

See 1st Reading of L 210.

70

See L 201, § 1.

The International Fund for Animal Welfare is the organization that initiated the campaign against the clubbing of the baby seals; see http://www.ifaw.org. 71

72 See Erik Holm, Sæler Slagtes: Uhyggelige Myrderier af Sælunger Foregår Stadig, BT (Den.), Apr. 20, 2003, at 28–29 [hereinafter Holm, Sæler Slagtes]. See also http:// www.ifaw.org.

102 • The WTO, Animals and PPMs

panying pictures of a skinned baby, have most likely also sparked and continued the public outcry against such acts.73 In response to the reported clubbing in Canada in the 1970s and 1980s, the EC adopted a trade ban on all fur skins stemming from seal pups.74 The EC did thus not distinguish between those pups that were killed in another and more acceptable manner and those pups that were killed by clubbing.75 The only exception to the total prohibition on trade in fur skins from seal pups is traditional hunting by Inuit people.76 The law, thus, is similar to the more recent Danish law on furs stemming from cats and dogs; the mere fact that the fur stems from these particular animals makes it unacceptable. The exception for those seals that are hunted by Inuit people is a statement of support to the Inuit people and does not affect the issue of killing of baby seals. The Preamble of the Directive itself reads as follows: “whereas hunting, as traditionally practiced by the Inuit people, leaves Seal Pups unharmed and it is therefore appropriate to see that the interests of the Inuit people are not affected.” In the United Stats, the issue is handled differently: trade of and taking of seals are prohibited by the Marine Mammal Protection Act (MMPA) of 1972,77 which applies to all marine mammals, endangered or non-endangered.78 The U.S. policy thus covers more than merely seal pups; it covers all seals and all other marine mammals—and it also covers taking and incidental taking, which essentially gives the marine mammals an all-round protection. 3.2.2

Leg-Hold Traps

Whether a fur-bearing animal is killed in one manner or another is yet a different issue. This issue distinguishes itself from the issues of dogs, cats and baby seals in the manner that the animals killed by leg-hold traps are otherwise accepted as animals that provide pelts for the fur industry.

73 See, e.g., Holm, Sæler Slagtes, supra note 72. The article consist mainly of photographs and description of the clubbing of baby seals in Canada. The pictures come from http://www.ifaw.org. 74

See Council Directive 83/129/EEC, 1983 O.J. (L 91) 30, Article 1 and Annex.

75

See id.

76

See id. at Article 3.

77

See 16 U.S.C. § 1371(a).

78

See 16 U.S.C. § 1362(6).

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The EU has prohibited imports and utilization of leg-hold traps in a Council Regulation.79 Article 1 of the regulation defines leg-hold traps as “a device designed to restrain or capture an animal by means of jaws which close tightly upon one or more of the animal’s limps, thereby preventing withdrawal of the limb or limbs from the trap.” The EU did, however, in relation to the prohibition, agree with the United States, Canada and Russia that the trading partners would recognize each other’s trapping standards and proceed with negotiations thereof, which effectively put the prohibition out of force vis-à-vis those countries,80 in spite of the fact that none of the agreements included a prohibition of leg-hold traps in the United States, Canada or Russia.81 The critics of the leg-hold traps, inter alia, mention that leg-hold traps do not kill the animal; rather they trap the animal, which, in its attempt to get out, often suffers broken teeth and bites off its entrapped limp.82 If the animal manages to escape the trap by biting off its limp, it often ends up being prey for another animal or dies from infection.83 A few other logical conclusions can be drawn from the scenario; if the trap is placed in water, the aquatic mammal will drown; and if the trapper does not check on his/her traps regularly, the animals can also die from thirst and starvation. Apart from these inhumane effects of the trapping itself, the leg-hold traps are also indiscriminate, which leads to other non-target animals being caught in them.84 Based on basic common sense considerations, it is easy to understand that the leg-hold trap issue is different than the baby seal issue, because the animals caught in the leg-hold traps (beaver, otter, coyote, wolf, lynx, bobcat, sable, raccoon, musk rat, fisher, badger, marten and ermine)85 are the 79

See Council Regulation 91/3254/EEC, 1991 O.J. (L 308) 1.

80 See also Peter V. Michaud, Caught in a Trap: the European Union Leghold Trap Debate, 6 MINN. J. GLOBAL TRADE 355 (1997); Christoph T. Feddersen, Focusing on Substantive Law in International Economic Relations: the Public Morals of GATT’s Article XX(a) and “Conventional” Rules of Interpretation, 7 MINN. J. GLOBAL TRADE 75, 98–102 (1998). 81 See International agreement in the form of an Agreed Minute between the European Community and the United States of America on humane trapping standards—Standards for humane trapping of specified terrestrial and semi-aquatic mammals, 1998 O.J. (L 219) 26; Agreement on International Humane Trapping Standards Between the European Community, Canada and the Russian Federation, 1998 O.J. (L 42) 43. See also Council Regulation 97/35/EEC, 1997 O.J. (L 8) 2, Article 1 (a). 82

See, e.g., http://www.wildlifeprotection.net; http://banlegholdtraps.com.

83

See id.

84

See id.

These are species mentioned in the Annex to the EU legislation on the issue. See Council Regulation 91/3254/EEC, Annex. 85

104 • The WTO, Animals and PPMs

kind of furs that are “traditional” suppliers of pelts to the fur industry. In the EU, the policy was thus not to ban all pelts and furs from these animals (as it was the case with the baby seal). Rather, the aim was to stop the use of leg-hold traps, i.e., the killing method. A trade measure, which does not per se ban the product itself, but rather the manner in which it is produced, faces different problems in relation to the WTO than the “core” ban, such as the baby seal ban. This is analyzed in Chapter 9. 3.3 In Vivo Testing In vivo testing on animals is a well known and highly emotional area for most people. While farm animals, for most people, are a “necessary evil,” in vivo testing often seems excessive, depending on what is being “tested”: a picture of an innocent little animal next to some medical equipment makes for fantastic front pages of newspapers, which, e.g., was evidenced in the summer of 2004 in the university newspaper for the University of Copenhagen, showing a little white mouse with red eyes next to a big needle and the words “The Animal Must Die.”86 Medical schools and pharmaceutical companies are, however, not the only participants in and reasons for animal testing. Just to mention a few other areas, laundry detergent, toothpaste, nail polish, etc., are also tested on animals.87 Moreover, the tobacco industry has also vigorously tested cigarettes on “smoking dogs.”88 The main issue concerning animal testing is whether it is “necessary.” A majority of people will probably agree to the utilization of pigs to train doctors in complicated procedures, such as transplantation of hearts, lungs and kidneys. Development and testing of life-saving medicine is probably also acceptable to most people. The problem arises in areas such as “smoking dogs.” However, no country has yet banned production and import of cigarettes that have been tested on dogs. 86 See Universitetsavisen, KØBENHAVNS UNIVERSITET, No. 10, 2004, at front page (the citation of “The Animal Must Die” is my own translation from “Dyret skal dø”). 87 See e.g., Antony Barnett, Tory MP in animal rights question row, OBSERVER, Aug. 18, 2002, at 12; Connie Koennen, To Market, To Market—With a Mission; Environment: Yesterday they were Yuppies; Today they are ‘Green Consumers’ who are Demanding Goods that are Ecologically Safe, L.A. TIMES, Mar. 15, 1990, at E. See also, e.g., http://www.vivisectioninfo.org/news.html. 88 For smoking dogs, see e.g., http://www.peta.org/feat/wackypacks/; Heather Moore, Dying for a Cigarette, at http://www.impactpress.com/articles/febmar02/cigs2302. html.

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This book only focuses on animal testing of cosmetics products and leaves the entire medical and training debate aside. Testing of animals for cosmetics is an area that has been debated a lot—probably because the concept of animal suffering in the name of human vanity has repulsed people—whereas the testing on, e.g., laundry detergent is unknown to most people I have confronted with the issue. 3.3.1

In Vivo Testing of Cosmetics

The issue of animal testing in relation to cosmetics has been subject to a long display of procrastination by the EU Commission in relation to prohibiting both producing and importing products that have been in vivo tested on animals.89 The EU has, in Directive 76/768/EEC,90 laid down the EU’s consumer protection laws in relation to cosmetics. In relation to the toxicity testing, Directive 86/609/EEC91 has affected the toxicity testing by prescribing that: “An experiment shall not be performed if another scientifically satisfactory method obtaining the result sought, not entailing the use of an animal, is reasonable and practically available.”92 Some years later, the animal welfare concern was introduced directly in relation to Directive 76/768/EEC with the amendment thereto in Directive 93/35/EEC.93 Directive 93/35/EEC on cosmetics was, however, more restrictive than the general Directive 86/609/EEC and aimed at abolishing animal testing by January 1, 1998. As mentioned above, this was, nevertheless, postponed several times. Most recently, Directive 03/15/EEC postponed to 2009 the final deadline.94 The reason for the postponement is the lack of availability of an alternative in vitro test to replace the in vivo tests.95 The references to the avail89 See e.g., Laura Yavitz (now Nielsen), The WTO and the Environment: The Shrimp Case that Created a New World Order, 16 J. NAT. RESOURCES & ENVTL. L. 203, 246–48 [hereinafter Yavitz (Nielsen), Shrimp]. 90

See Council Directive 76/768/EEC, 1976 O.J. (L 262) 169.

91

See Council Directive 86/609/EEC, 1986 O.J. (L 358) 1.

92

Id., Article 7:2.

See Council Directive 93/35/EEC, 1993 O.J. (L 151) 32. For a historical connection between the different directives in relation to animal welfare, see, e.g., Council and Parliament Directive 03/15/EEC, 2003 O.J. (L 66) 26, at Preamble (3); Yavitz (Nielsen), Shrimp, supra note 89, at 246–48. 93

94 See Directive 03/15/EEC, Article 1:2; see also Press Release From the Danish Presidency, The European Parliament and the Council have Agreed on Amendment of the Cosmetics Directive (Ban on Animal Testing), Nov. 11, 2002, available at http://eu2002.dk. 95

See, e.g., Directive 03/15/EEC, at Preamble (1)–(8).

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ability of in vitro testing methods are generally made to the OECD96 guidelines.97 However, even if more in vitro tests are not validated before 2009, the prohibition will come into force regardless.98 From this year onwards, there will be a prohibition on marketing cosmetics products that have, in their final state, been tested on animals; ingredients tested on animals; and to conduct in vivo testing of cosmetics in the EU.99 This is also a measure that has a bearing on the production method, which is specifically analyzed in Chapter 8. 4

CONCLUSION

The most important thing to understand is that animal welfare concerns stem from morals. Regardless of whether the treatment of animals is determined from the notion that humans should act nicely to animals, that animals have feelings, that animals should have rights, etc., the policies stem from morals and cannot be scientifically verified. This is the main difference between protection of animals in the environmental area and in relation to animal welfare.

96 See Convention on the Organization for Economic Cooperation and Development, Paris, Dec. 14, 1960, available at http://www.oecd.org. 97

See e.g., Directive 03/15/EEC, at Preamble (5).

98

See id. at Preamble (5)–(7).

99

See id. at Article 1:1.

CHAPTER 6

ENVIRONMENTAL AND OTHER POLICIES IN THE WTO

1

BRIEF HISTORICAL INTRODUCTION

Just as the previous chapters included brief historical outlines to further the understanding of the concepts, the WTO1 is equally introduced with a brief historical overview.2 The most important historical fact to understand in relation to the WTO is that the agreement, which the main part of the analyses in this book focuses on, the GATT,3 was drafted back in the 1940s. All other agreements were drafted during the Uruguay Round in the late 1980s or early 1990s. 1.1 The GATT and the ITO In a historical perspective, the creation of the WTO in 1995 was a resurrection of the idea of having the trade area being regulated within the framework of an intergovernmental organization (IGO). The International Trade Organization (ITO) was envisioned as the third Bretton Woods Institution alongside the World Bank and the International Monetary Fund.4 The ITO, however, never came into being, because the Truman Administration decided not to submit the Havana Charter (the charter of the ITO) to Congress when it became clear it would not be approved.5 1 The World Trade Organization was established in 1995 by the founding act. See Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Apr. 15, 1994, 33 I.L.M. 1125 (1994). The WTO Agreement establishes the WTO, and all other agreements are annexed to this agreement. See the Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 1125 (1994), entered into force Jan. 1, 1995 [hereinafter the WTO Agreement]. 2 For further analysis of the historical aspects of the GATT and the WTO, see, e.g., Chapter 1, note 11 and accompanying text; BUGGE THORBJØRN DANIEL, WTO ADJUDICATION 25–92 (2005). 3 See the General Agreement on Tariffs and Trade, Oct. 30, 1947, 55 U.N.T.S. 194 [hereinafter GATT 1947], which is now incorporated into GATT 1994. See the General Agreement on Tariffs and Trade, Apr. 15, 1994, WTO Agreement Annex 1A, Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 1125 (1994) [hereinafter GATT 1994]. 4

See Chapter 1, note 11 and accompanying text.

See, e.g., RAJ BHALA, INTERNATIONAL TRADE LAW: THEORY AND PRACTICE 127 (2001). 5

107

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Without the United States, the future of the ITO was bleak, and the demise of the ITO took place before its birth.6 The negotiations of a third Bretton Woods Institution had, however, been two-fold; the Havana Charter was negotiated alongside a temporary tariff reduction treaty, the GATT. Therefore, when it became clear the ITO would never come into being, some of the parties continued with the imperfect and temporary GATT Agreement.7 Certain changes were made to make the “treaty” function as the “IGO,” such as calling the members “contracting parties.”8 Moreover, in order to have the “treaty” function as the “IGO,” there had to be a meeting place for further negotiations—and hence also a Secretariat.9 For those reasons—and quite ironically—the temporary and imperfect GATT became the single most important document in the history of trade law: the GATT became both the law of international trade law and the de facto organization assuming the role of the ITO.10 Professor John Jackson described this special feature of the GATT in his inauguration speech for the Advisory Centre on WTO Law: “it filled the vacuum left by the failure of a trade organization to come into being.”11 1.2 The World Trade Organization After nearly 50 years with the GATT functioning as a de facto organization, the creation of the WTO finally added the “real” organization the ITO was envisaged to become—and a lot more. The WTO is physically located in the same place as the GATT was during the last years of its existence— at the Western lakeshore of Lac Léman by a large park in Centre William Rappard. While the beautiful setting of the WTO is impressive, the results of the Uruguay Round becomes more impressive the more one starts to understand the implications of what was achieved during those eight years of negotiations—and how slowly negotiations actually proceed in practice. The WTO is much more than the ITO attempted to be; it not only regu6

See, e.g., id.

7

See, e.g., id. at 127–28.

8

See, e.g., id. at 128.

9

See, e.g., id. at 128.

10

See, e.g., id.

See John Jackson, Perceptions about the WTO Trade Intitutions, from homepage for Advisory Centre for WTO Law, at http://www.acwl.ch, (now, on file with the author). 11

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lates trade in goods but also trade in services and intellectual property.12 In addition, the unique dispute settlement mechanism (DSM) is a feature that has received flattering names, such as the “Jewel” of the WTO.13 Technically, the WTO incorporated the “old” GATT (functioning as the legal text, which from 1995 onwards is called the GATT 1947) in the “new” GATT 1994, which essentially is the “old” GATT plus more.14 For purposes of the analyses in this book, the GATT 1947 has not been changed by the advent of the GATT 1994 and is throughout the book referred to as “GATT.” The clauses in focus in the analyses in this book (GATT Articles I, III, XI and XX) are therefore found in the text of the GATT 1947, and the negotiation records consequently stem from the 1940s. The negotiation records for GATT Article XX are analyzed in Chapter 8, and this analysis also includes an explanation of the relationship between the ITO preparatory work and that of the GATT. 2

SUSTAINABLE DEVELOPMENT IN THE WTO

It seems important that the WTO—when regulating more than 90 percent of world trade—is committed to the goal of sustainable development. The commitment is laid down in the Preamble of the WTO Agreement. Therefore, the goal of sustainable development is—at least de lege ferenda— incorporated into the WTO. Moreover, the goal is reiterated in various other documents, such as the Doha Development Ministerial Declaration, paragraph 6 and the document that explains the cooperation between the WTO and U.N. Environmental Program (UNEP).15 The policy goal of sustainable development is, however, not written into any substantive obligations under any of the WTO Agreements, but there are many initiatives and special rules for developing countries,16 as well as environmental “exceptions” as in, e.g., GATT Article XX.

12 See General Agreement on Trade in Services, Apr. 15, 1994, WTO Agreement Annex 1B, Legal Instruments—Results of the Uruguay Round, 33 I. L. M. 1125 (1994) [hereinafter GATS]; Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, WTO Agreement Annex 1C, Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 1125 (1994) [hereinafter TRIPS]. 13 See Minutes of General Council Meeting, Nov. 22, 2000, WT/GC/M/60, at para. 4. 14

See GATT 1994, Article 1, which enumerates the coverage of the GATT 1994.

15

See Press Release, Press/154, Nov. 29, 1999, available in TN/TE/S/2.

For an overview of development rules, see “The Development Gateway” on http://www.wto.org, which is located under “Trade Topics.” 16

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While there are no hard law obligations in the WTO Agreements to protect the environment or animal welfare, this means WTO members are not obliged to protect the environment or animal welfare in relation to trade under the WTO rules. As illuminated in Chapter 2, Section 2, unless countries have pledged to be bound by international agreements or a customary rule applies, there is no obligation to act or refrain from acting in a certain manner. If, however, a country wishes to enact a trade barrier to protect animals, this measure—if found illegal under the WTO obligations not to create trade barriers—could be justified under an exception. As for the social dimension in relation to the GATT, the only evidence of such concern is reflected in GATT Article XX(f), which is also an exception; i.e., there are no obligations to pursue social protection, but there is a means to justify such a measure if a country enacts it. This clause of Article XX, allows for members to prohibit the import of goods produced by prison labor. Because the GATT was written in the years dating up to 1947, this exception could be interpreted as “those days labor standards,” but while this is tempting, the reason for the inclusion of this clause is probably more to be found in the distorting effect prison labor has on markets when there is no, or little, money spent on wages in the production. Conversely, there is no specific clause for slavery, so if slavery is presumed to fall within the clause, perhaps so should labor standards. It should, moreover, be reiterated that the Singapore Ministerial Declaration specifically stated that: We reject the use of labour standards for protectionist purposes, and agree that the comparative advantage of countries, particularly low-wage developing countries, must in no way be put into question. In this regard, we note that the WTO and ILO Secretariats will continue their existing collaboration. If this statement is viewed as an interpretation as laid down in the WTO Agreement Article IX:2, this could mean “labour standards utilized for protectionist purposes” cannot be justified anywhere in the WTO Agreements. This interpretation is, however, very broad and does not reflect whether it is particularly aimed at GATT Article XX(b) and/or (f). Therefore, it is probably going to be difficult for a potential panel and/or the Appellate Body to utilize the statement as any meaningful guidance in the interpretation. Analysis of the qualification that labor standards had to be “protectionist” can, however, lead to the opposite result: labor standards is an acceptable policy reason in justifying an altruistic, but not protectionist, trade barriers under GATT Article XX. The excerpt should, however, not be understood as a limitation of the jurisdiction of the panels to hear cases involving labor standards. It is not

Environmental and Other Policies in the WTO • 111

possible to limit the jurisdiction, because panels are obliged to hear claims under the covered agreements, as laid in the Dispute Settlement Understanding (DSU) Article 7.2.17 In reality, a case involving a trade barrier motivated by labor standards will be brought by the member adversely affected by such a trade barrier. This member will invoke the supposedly violated substantial obligations under the WTO Agreement, regardless of the motivation behind the trade barrier by the defending country. Therefore, jurisdiction to hear such cases cannot be limited; the same goes for trade barriers motivated by environmental or animal welfare or any other reason. In sum, when the trade measure is taken to adhere to labor standards, this will, in effect, violate the substantive obligations that the panels must address. The practical implications of the statement from the Singapore Ministerial Declaration remain to be seen in relation to a trade dispute involving the social prong of sustainable development. Perhaps it is safest to assume that the statement is an encouragement not to enact trade measures based on labor standards and, if it happens, not to bring any cases about the measure. The latter is, however, probably difficult to avoid. In sum, while the WTO does not directly require social development or environmental protection, it nevertheless has rules that can impede such efforts by its members, because the measures would have to “survive” the tests in the exceptions in issue. It is those exceptions that most of the analyses in this book focus on. 3

ENVIRONMENTAL AND/OR MORAL VALUES AND THE WTO RULES

Initially, a few things should be noted. Firstly, the WTO rules consist of a number of different agreements regulating trade in goods, services and intellectual property. Secondly, these rules aim at trade liberalization; i.e., it is not a free trade agreement with zero tariffs as, e.g., NAFTA or a customs union, such as the EC.18 As described above, if WTO members wish to ensure protection of the environment and animal welfare in relation to trade, they can only do so to the extent these measures do not come into conflict with WTO law. The issue is whether these measures violate the “substantive obligations” of any WTO Agreement and whether an exception can justify the violation—or 17 Understanding on Rules and Procedures Governing the Settlement of Disputes, Apr. 15, 1994, WTO Agreement Annex 2, Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 1125 (1994) [hereinafter DSU]. 18

For a further analysis of the difference, see, e.g., JOCHEM WEIRS, TRADE AND ENVIEC AND THE WTO 9–18 (2002).

RONMENT IN THE

112 • The WTO, Animals and PPMs

whether one of the WTO Agreements provides particularly for this type of trade barrier. In practice, trade measures can be designed in many ways: a tariff barrier could, e.g., be that a member puts a 100-percent tariff on ivory, because this member found the elephant to be endangered or at risk of becoming so. A non-tariff barrier is anything else but tariffs, such as bans, quotas, internal taxation and other more or less complicated schemes to prevent goods from being sold in the country. Obviously, there must be certain exceptions to the substantive obligations; it is hard to imagine any country would enter into the WTO if they were not allowed to keep certain products out of their markets. Unfortunately, there is no special agreement under the WTO where specific rules are laid down for an “environmental exception” in the event a WTO member enacts a trade measure in violation of the substantive obligations, or, for that matter, an “Agreement on Trade Related Environmental Measures.” Thus, the “main rule” cited in the context of WTO and the environment is the much-debated GATT Article XX, a rule dating back to the GATT 1947.19 But some trade measures may be analyzed under the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement)20 and/or the Agreement on Technical Barriers to Trade (TBT Agreement).21 These two agreements will be introduced separately. 4

DISPUTES—THE BASICS

If a WTO member enacts a measure that violates one of the substantive obligations under a WTO Agreement, other affected WTO members can challenge the measure, following the rules under the DSU. In the absence of a settlement between the parties, a panel will be established, a panel report issued and perhaps an Appellate Body report, i.e., a scrutiny of the legality of the measure according to WTO law.22 At this stage, it should be 19 The CTE itself refers to GATT Article XX(b), (d) and (g) as the environmental exceptions. See GATT/WTO Dispute Settlement Practice Relating to GATT Article XX, Paragraphs (b), (d) and (g), WT/CTE/W/203 [hereinafter CTE note], para. 1. 20 See Agreement on the Application of Sanitary and Phytosanity Measures, Apr. 15, 1994, WTO Agreement Annex 1A, Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 1125 (1994) [hereinafter SPS Agreement]. 21 See Agreement on Technical Barriers to Trade, Apr. 15, 1994, WTO Agreement Annex 1A, Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 1125 (1994) [hereinafter TBT Agreement]. 22 See DSU Articles 4, 6, 7, 16 and 17. For a description of the DSM of the WTO in general, see, e.g., Flow chart of DSM prepared by the WTO Secretariat, available at http://www.wto.org; DANIEL, supra note 2, at 104–206; BHALA, supra note 5, at 214–28.

Environmental and Other Policies in the WTO • 113

reiterated that WTO obligations are bilateral in character.23 This means that it is only the injured state that can bring the case (and not the entire membership or one member acting on behalf of the entire membership or the like); albeit this is a truth with modifications, because WTO cases need to be either violation cases, non-violation cases or “other.”24 Accordingly, the injured party does not need to be injured in the traditional sense but merely “consider that any benefit accruing to it directly or indirectly under [after the advent of the WTO, the ‘covered agreements’ are] being nullified of impaired” as a result of violation, non-violation or “other.”25 The Appellate Body in EC—Bananas III, moreover, confirmed the panel’s holding: the complainant did not need to show its “legal interest” in order to bring a case under the DSU, but “a Member is expected to be largely selfregulating in deciding whether any such action would be ‘fruitful’.”26 If the panel or the Appellate Body (if the case is appealed) finds a member is not in conformity with its WTO obligations, the loosing member has two options: implementation or compensation, where implementation is the preferred solution. Compensation is not cash compensation, although this has been discussed in the Special Sessions to the DSB, but rather a lowering of tariffs, which is done on a MFN basis. Compensation is laid down in DSU Article 22 and has, to my knowledge, never been agreed upon. DSU Article 22 also lays down the rules for retaliation or “suspension of concessions.” Suspending the concessions in terms of tariffs is raising the tariffs, which clearly goes against the notion of trade liberalization, and this is also the least preferred solution. It has, however, been authorized by the DSB (again deciding by negative consensus) in some cases, hereunder the infamous EC—Bananas III case, where Ecuador ended up being unable to utilize its right to suspend concessions against the EU, because it would hurt their own economy more than the EC would even notice it. The following is a clarification of the difference between a unilaterally motivated trade measure and a trade measure arising out of a multilateral

23 See also JOOST PAUWELYN, CONFLICT OF NORMS IN PUBLIC INTERNATIONAL LAW, HOW WTO LAW RELATES TO OTHER RULES OF INTERNATIONAL LAW 52–58 (2003), who clarifies this issue by, inter alia, analyzing whether the members of the WTO can make inter se derogations from the obligations in the WTO Agreements apart from reiterating the issue above regarding standing to bring a case before the DSB. 24

See GATT Article XXIII:1, DSU Article 3:1, 26.

25

See GATT Article XXIII:1, DSU Article Article 1, Appendix 1.

European Community—Importation, Sale and Distribution of Bananas, Appellate Body Report, Sept. 9, 1997, WT/DS27/AB/R, para. 135 [hereinafter EC—Bananas III Appellate Body Report]. See also id. at paras. 132–133. 26

114 • The WTO, Animals and PPMs

environmental agreement (hereinafter MEA) or some type of regional environmental agreement. 4.1 Unilateral or MEA Trade Measure—A Clarification Most people that have paid attention to discussions in and outside the WTO have noted there is some focus on the relationship between MEAs and the WTO; it is, e.g., part of the current negotiation mandate.27 To this date, there has, however, never been a WTO case involving a trade barrier arising out of an MEA.28 When analyzing MEAs in relation to the WTO, it is important keep focus on the structure of the legal analysis and proceedings. In the event a country enacts a trade-related environmental measure—or animal welfare measure—the same structure applies to all conflicts, including those arising out of a MEA obligation. To illuminate this point, a “case” arises when a member requests the establishment of a panel, after unfruitful consultations.29 The member requesting the establishment of a panel will cite the legal agreements and clauses it finds the other member to have violated.30 This effectively means the case will move forward regardless of whether the trade barrier in issue arose out of a unilateral policy or out of an obligation laid down in, e.g., a MEA. The member acting in the role of defendant will conversely invoke all possible defenses, including whether a trade measure arose out a policy laid down in a MEA. Distinguishing between a “unilateral” measure and a measure arising out of a MEA only makes sense in identifying the cause of the measure in a defense, e.g., under GATT Article XX. Or, put differently, the invocation of a MEA as a defense does not automatically lead to a general adjudication of the legality of a MEA in its entirety.31 WTO cases are, by their nature, only vertical, i.e., an issue of whether a domestic trade measure is in conflict with the WTO rules and never horizontal, i.e., an issue of whether a MEA conflicts with the WTO. 27

See, e.g., Doha Ministerial Declaration para. 31.

The Swordfish case was settled by mutual agreement; see Chile—Measures Affecting the Transit and Importation of Swordfish, WT/DS193, Settled by mutual agreement in WT/DS193/3, Apr. 6, 2001 [hereinafter Chile—Swordfish]; Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Community), Case No. 7 in ITLOS, Press Release 87, available at http://www.itlos.org. See also Chapter 9. 28

29

See DSU Articles 4 and 6.

30

And/or bring a non-violation complaint. See GATT Article XXII:1(b); DSU Article

31

See PAUWELYN, supra note 23, at 10.

26.

Environmental and Other Policies in the WTO • 115

4.2 WTO Case Law? Before getting into the legal analyses of the WTO Agreements, a small illustrative analysis is included regarding the value of previous reports in the system. As it will be shown, much of the analysis of environmental and animal welfare measures is based on previous reports, and their status is therefore important to clarify. The following sections consist of a brief analysis of consistency, stare decisis and precedential value in the WTO system for purposes of understanding the concepts in relation to the issues analyzed in this book.32 4.2.1

Consistency and Stare Decisis

International law does not operate with a notion of precedent33 or stare decisis.34 As, e.g., posited by Bhala in his trilogy on stare decisis in the WTO system, “[t]he doctrine of stare decisis is not simply foreign to international law, it is expressly disavowed by the near-sacred sources of the foundational field, public international law. One need look only to Article 38.1 and 59 of the Statute of the International Court of Justice.”35 Having, however, said this, the statements on the legal effects of reports in the WTO systems are most often inherently contradictory:36 The WTO panel and Appellate Body reports are binding on the parties to the dispute . . . They are not binding interpretations of the WTO Agreements, however, and have no legal effect on other WTO Members. They also are not precedents that are legally bind32 For a more thorough analysis, see, e.g., Raj Bhala, The Myth About Stare Decisis and International Trade Law (Part One of Trilogy), 14 AM. U. INT’L L. REV. 845 (1999); Raj Bhala, The Precedent Setters: De Facto Stare Decisis in WTO Adjudication (Part Two of Trilogy), 9 J. TRANSNAT’L L. & POL’Y 1 (1999); Raj Bhala, Global Trade Issues in the New Millennium: The Power of the Past: Towards De Jure Stare Decisis in WTO Adjudication (Part Three of Trilogy), 33 GEO. WASH. INT’L L. REV. 873 (2001); DANIEL, supra note 2, at 207–95; David Palmeter & Petros Mavroidis, The WTO Legal System: Sources of Law, 92 AM. J. INT’L L. 398 (1998). 33 Precedent is defined by Raj Bhala to mean: “a prior decision, or a body of prior decisions, that functions as a model for subsequent decisions.” Bhala, Myth, supra note 32, at n.6. 34 Stare decisis is defined by Raj Bhala to mean “that a judge must decide a case at bar in accordance with any applicable precedent.” Id. at n.9. 35

Id. at 863–54.

For more examples of confusing statements on precedence in the WTO, see id. at 869–77. 36

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ing in subsequent cases. Nevertheless, such reports constitute evidence of treaty practice, and subsequent dispute settlement panels and the Appellate Body are free to cite them and rely on their reasoning. . . . In fact, panels and the Appellate Body closely examine precedents when dealing with a dispute and try not to deviate from the interpretation established by the precedents [emphasis added].37 In relation to the WTO, it should, however, initially be noted that reports must be distinguished from more traditional judgments from real “courts.” The DSM is an arbitration process and not a “WTO Court” or “WTO Court of Justice.” The WTO DSM is an arbitration process to solve disputes: The aim of the dispute settlement mechanism is to secure a positive solution to a dispute. A solution mutually acceptable to the parties to a dispute and consistent with the covered agreements is clearly to be preferred. In the absence of a mutually agreed solution, the first objective of the dispute settlement mechanism is usually to secure the withdrawal of the measures concerned if these are found to be inconsistent with the provisions of any of the covered agreements.38 Moreover, there is no WTO body acting as the prosecutor as, e.g., the EU Commission, and it is thus up to the individual governments to bring a case.39 When a government, most likely after the domestic industry has complained, decides to approach another WTO member in order to address that it is being unfairly treated, the process itself starts with a consultation phase.40 When the parties in a consultation cannot agree, a panel is established by the DSB.41 The adoption of the report is the act by which the reports has effect, which is one of the clearest signs that the DSM is merely a quasi-judicial system.42 It is, however, important to note that even MITSUO MATSUSHITA ET AL., THE WORLD TRADE ORGANIZATION LAW, PRACTICE POLICY 25 (2003).

37

AND

38

DSU Article 3.7 in excerpt.

See Meinhard Hilf, Power, Rules and Principles—Which Orientation For WTO/GATT Law?, 4 J. INT’L ECON. L. 111, 115 (2001). 39

40

See DSU Article 4.

41

See DSU Article 6.

See DSU Articles 16 and 17. See also Claus-Dieter Ehlermann, Six Years on the Bench of the “World Trade Court,” 36 J. WORLD TRADE 605, 606 (2002), who equally utilizes the term “quasi-judicial”; James Bacchus, Table Talk: Around the Table of the Appellate Body of the World Trade Organization, 35 VAND. J. TRANSNAT’L L. 1021, 1025 (2002). 42

Environmental and Other Policies in the WTO • 117

after establishment of a panel, a mutual solution is often reached.43 WTO case law thus only consists of the cases involving parties that were unable to settle the disputes among themselves. The manner in which adoption of reports takes place (including other acts of the DSB in relation to the dispute settlement process, such as authorization of suspension of concessions) has been changed with the advent of the DSB. These decisions are taken by means of “negative consensus,” whereas in the GATT era, the decisions were taken with “positive consensus”; and it was possible to unilaterally block a decision. Positive consensus is defined in the WTO Agreement Article IX at footnote 1 as: The body concerned shall be deemed to have decided by consensus on a matter submitted for its consideration, if no Member, present at the meeting when the decision is taken, formally objects to the proposed decision. Negative consensus is defined in, e.g., DSU Article 6:1, which reads as follows: If the complaining party so requests, a panel shall be established at the latest at the DSB meeting following that at which the request first appears as an item on the DSB’s agenda, unless at that meeting the DSB decides by consensus not to establish a panel [footnote omitted, emphasis added]. With the operation of negative consensus, it is highly unlikely that a consensus against adoption will ever happen, because, presumably, the “winning” party will not be “against” adoption of the report. Unadopted reports are only found in the GATT era. This note on consistency and stare decisis, if such can be said to exist in the WTO system, aims at illuminating two issues: 1.

2.

The issue of de jure stare decisis. This includes an analysis of the issue of precedential value of the WTO reports, adopted GATT reports and unadopted GATT reports. The issue of the so-called de facto stare decisis.

43 When a solution is reached after the panel is established, the panel report solely consists of a brief description. DSU Article 12:7. See, e.g., European Communities—Trade Description of Scallops, Aug. 5, 1996, WT/DS12/R, WTDS14/R.

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4.2.2

No De Jure Precedents

Authoritative interpretations can, according to WTO Agreement Article IX:2, only be adopted by the General Council or the Ministerial Conference. WTO Agreement Article IX:2—along with DSU Article 3.2— may, according to Bhala, “provide a reasonably solid textual basis for concluding stare decisis is not supposed to operate in international trade law.”44 Another treaty to consult is the VCLT. VCLT Article 31:3(b) relates to subsequent practice. Being laid down in VCLT Article 31, it is a primary source in treaty interpretation and not merely a supplementary source of treaty interpretation in VCLT Article 32. The meaning of both these clauses in relation to the issue of precedents is illuminated in this section. On the issue of the VCLT, the ILC commentary states that subsequent practice is intended to be for all the parties to the agreement.45 In the WTO, this could logically mean that if no member objects to the adoption of a certain report, it is accepted as subsequent practice. For practical reasons, this may not be a good approach to take, because, in reality, it is not all members that are represented at each and every DSB meeting, and it is not every delegation that has the human capacity to carefully read and consider each and every report issued by the panels and the Appellate Body.46 The Appellate Body has equally rejected the notion of adopted reports as being a part of subsequent practice. The issue came about because the panel in Japan—Alcohol had come to the following conclusion: [P]anel reports adopted by the GATT CONTRACTING PARTIES and the WTO Dispute Settlement Body constitute subsequent practice in a specific case by virtue of the decision to adopt them. Article 1(b)(iv) of GATT 1994 provides institutional recognition that adopted panel reports constitute subsequent practice. Such reports are an integral part of GATT 1994, since they constitute “other decisions of the CONTRACTING PARTIES to GATT 1947.”47 44

See Bhala, Myth, supra note 32, at 878.

See ILC Commentary on the draft VCLT, 2 Y.B. I.L.C. 222 (1966) [hereinafter ILC Commentary, vol. II]. See also OLE SPIERMANN, MODERNE FOLKERET 385 (Jurist og Økonomforbundets Forlag, 2d ed. 2004). 45

46 See also Michael Lennard, Navigating by the Stars: Interpreting the WTO Agreements, 5 J. INT’L ECON. L. 17, 32–35 (2002), discussing the various aspects of subsequent practice in relation to the WTO. 47

Japan—Taxes on Alcoholic Beverages, Report of the Panel, WT/DS8/R,

Environmental and Other Policies in the WTO • 119

On the issue, the Appellate Body opined that: Although GATT 1947 [footnote omitted] panel reports were adopted by decisions of the CONTRACTING PARTIES [footnote omitted], a decision to adopt a panel report did not under GATT 1947 constitute agreement by the CONTRACTING PARTIES on the legal reasoning in that panel report. The generally-accepted view under GATT 1947 was that the conclusions and recommendations in an adopted panel report bound the parties to the dispute in that particular case, but subsequent panels did not feel legally bound by the details and reasoning of a previous panel report [footnote omitted] [emphasis added].48 The Appellate Body, in the same breath, explained its view on the relationship between precedents and the exclusive authority given to the General Council to adopt authoritative interpretations: We do not believe that the CONTRACTING PARTIES, in deciding to adopt a panel report, intended that their decision would constitute a definitive interpretation of the relevant provisions of GATT 1947. Nor do we believe that this is contemplated under GATT 1994. There is specific cause for this conclusion in the WTO Agreement. Article IX:2 of the WTO Agreement . . . The fact that such an “exclusive authority” in interpreting the treaty has been established so specifically in the WTO Agreement is reason enough to conclude that such authority does not exist by implication or by inadvertence elsewhere [original emphasis].49 There is no problem in establishing that de jure precedents or stare decisis are not part of the WTO system. 4.3 De Facto Precedents The issue of de facto precedents and their inherent contradictions is more interesting than the issue of de jure precedents. As mentioned above, GATT reports consist of two distinct categories; the adopted and the unadopted reports. WT/DS10/R, WT/DS11/R, July 11, 1996, para. 6.10 [hereinafter Japan—Alcohol Panel Report]; Japan—Taxes on Alcoholic Beverages, Report of the Appellate Body, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, Oct. 4, 1996, at 13 [hereinafter Japan—Alcohol Appellate Body Report]. 48

Japan—Alcohol Appellate Body Report, supra note 47, at page 14.

49

Id.

120 • The WTO, Animals and PPMs

Adopted GATT reports are considered part of GATT acquis, which is explained by the Appellate Body in Japan—Alcohol in the following manner: Article XVI:1 of the WTO Agreement and paragraph 1(b)(iv) of the language of Annex 1A incorporating the GATT 1994 into the WTO Agreement bring the legal history and experience under the GATT 1947 into the new realm of the WTO in a way that ensures continuity and consistency in a smooth transition from the GATT 1947 system. This affirms the importance to the Members of the WTO of the experience acquired by the CONTRACTING PARTIES to the GATT 1947—and acknowledges the continuing relevance of that experience to the new trading system served by the WTO. Adopted panel reports are an important part of the GATT acquis. They are often considered by subsequent panels. They create legitimate expectations among WTO Members, and, therefore, should be taken into account where they are relevant to any dispute. However, they are not binding, except with respect to resolving the particular dispute between the parties to that dispute [footnote omitted]. In short, their character and their legal status have not been changed by the coming into force of the WTO Agreement.50 The passage from Japan—Alcohol above has equally been determined to apply to adopted Appellate Body Reports. This was clarified in the U.S.—Shrimp 21.5 Appellate Body Report: This reasoning [from Japan—Alcohol] applies to adopted Appellate Body Reports as well. Thus, taking into account the reasoning in an Appellate Body Report . . . The Panel was correct in using our findings as a tool for its own reasoning.51 The Appellate Body in Japan—Alcohol equally explained the status of unadopted panel reports from the GATT era: However, we agree with the Panel’s conclusion in that same paragraph of the Panel Report that unadopted panel reports ‘have no legal status in the GATT or WTO system since they have not been endorsed through decisions by the CONTRACTING PARTIES to GATT or WTO Members’ [footnote omitted]. Likewise, we agree 50

Japan—Alcohol Appellate Body Report, supra note 47, at page 15.

United States—Import Prohibition of Certain Shrimp and Shrimp Products, Recourse to Article 21.5 of the DSU by Malaysia, Report of the Appellate Body, Oct. 22, 2001, WT/DS58/AB/RW, at para. 109 [hereinafter U.S.—Shrimp 21.5 Appellate Body Report]. 51

Environmental and Other Policies in the WTO • 121

that ‘a panel could nevertheless find useful guidance in the reasoning of an unadopted panel report that it considered to be relevant’ [footnote omitted] [original emphasis].52 The remaining issue is what the difference is between legitimate expectations and useful guidance. For all practical purposes, however, the issue is becoming more and more irrelevant, because the unadopted reports are so old—and in the coming years, they will probably not be more than the memories of the origins of the WTO system. In this book, the two unadopted Tuna reports are included in much of the analyses, and the issue of their precedential value is not important, because most of the issues in those two reports have been opined upon by the Appellate Body. The “newer” WTO reports on the issues are, thus, the more important reports to rely upon as precedents—and the analyses have indeed changed a lot from the old Tuna reports to the WTO reports on GATT Article XX. Therefore, the primary issue to understand is how adopted reports are utilized as de facto precedents. In U.S.—Shrimp 21.5, the Appellate Body directly stated that it expected the panel in the case to rely on the reasoning in the U.S.—Shrimp Appellate Body Report: Malaysia also objects to the frequent references made by the Panel to our reasoning in our Report in United States—Shrimp . . . The Panel was right to use it, and right to rely on it. Nor are we surprised that the Panel made frequent references to our Report in Unites States—Shrimp. Indeed, we would have expected the Panel to do so.53 The Appellate Body, moreover, often cites to itself. In Shrimp the Appellate Body, e.g., stated that: The Panel did not follow all of the steps of applying the “customary rules of interpretation of public international law” as required by Article 3.2 of the DSU. As we have emphasized numerous times [footnote citing to five Appellate Body Reports omitted], these rules call for an examination of the ordinary meaning of the words

52

Id. the Appellate Body approved language from the panel report para. 6.10.

53

U.S.—Shrimp 21.5 Appellate Body Report, supra note 51, at para. 107.

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of a treaty, read in their context, and in the light of the object and purpose of the treaty involved.54 Another example, which is equally from the U.S.—Shrimp Appellate Body Report, is on the issue of sequence of steps in analyzing GATT Article XX, where the panel started with a chapeau analysis before analyzing the relevant sub-section. The Appellate Body stated: The sequence of steps . . . reflects, not inadvertence or random choice, but rather the fundamental structure and logic of Article XX. The Panel appears to suggest, albeit indirectly, that following the indicated sequence of steps, or the inverse thereof, does not make any difference. To the Panel, reversing the sequence set out in United States—Gasoline “seems equally appropriate [footnote omitted].” We do not agree.55 Examples from other substantive issues can also be found. In the Steel case (on safeguards), the Appellate Body, e.g., referred to its holdings in Argentina—Footwear (EC)56 on many occasions.57 For purposes of this book, it is sufficient to note that de facto precedents exist in the WTO system, and this means that future cases most likely will utilize interpretation from prior reports, but the panelists are allowed to deviate from case law in the event they want to. It should, however, be noted that the panels and the Appellate Body on a more practical level cannot ignore precedents, because the parties to disputes put forth arguments on precedents and distinguish among them when it appears beneficial for their arguments.58 It would seem unreasonable if the panels and the 54 United States—Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body, WT/DS58/AB/R, Oct. 12, 1998, at para. 114 [hereinafter U.S.—Shrimp Appellate Body Report] (emphasis added). 55

Id. at para. 119 (emphasis added).

See Argentina—Safeguard Measures on Imports of Footwear, Report by the Appellate Body, WT/DS121/AB/R, Dec. 14, 1999 [hereinafter Argentina—Footwear (EC)]. 56

57 See, e.g., United States—Definitive Safeguard Measures on Imports of Certain Steel Products, Report of the Appellate Body, WT/DS48/AB/R, WT/DS49/AB/R, WT/DS51/AB/R, WT/DS52/AB/R, WT/DS53/AB/R, WT/DS54/AB/R, WT/DS58/ AB/R, WT/DS59/AB/R, Nov. 10, 2003, paras. 278, 317, 346, 361, 388 [hereinafter U.S.—Steel Appellate Body Report]. 58 See, e.g., U.S.—Steel Appellate Body Report, supra note 57, at paras. 327–329. For an example of the numerous citations to cases by the parties in their submissions, See also, e.g., United States—Tax Treatment for “Foreign Sales Corporations” Recourse to Article 21.5 of the DSU by the European Communities, Report of the Panel,

Environmental and Other Policies in the WTO • 123

Appellate Body did not include such reports in their analysis, when they are put forth and relied upon as precedents—probably mainly due to the notion of de facto stare decisis. The de facto precedents create the predictability in the interpretation of WTO law. Meinhard Hilf puts it as follows: Though their decisions, as adopted by the Dispute Settlement Body, do not have precedential effect, they nevertheless tend, at the very least, to create expectations by all those concerned with the WTO. The function of the dispute settlement system is to contribute to the stability and predictability of the system, or, in other words, to its efficiency and certainly, by offering a continuing consistent interpretation of the texts under the WTO system.59

WT/DS108/RW, Aug. 20, 2001 [hereinafter U.S.—FSC 21.5 Panel Report], at the parties first written submission in Annex A. See also Jacques H.J. Bourgeois, The European Court of Justice and the WTO: Problems and Challanges, in THE EU, THE WTO AND THE NAFTA, TOWARDS A COMMON LAW OF INTERNATIONAL TRADE, 71, 120 (J.H.H. Weiler ed., 2000). 59

Hilf, supra note 39, at 116–17.

CHAPTER 7

GATT, SPS AND TBT

1

OVERVIEW OF THE RELEVANT ANNEX 1A AGREEMENTS

The following sections are brief outlines of the different Annex 1A Agreements (i.e., Agreements relating to trade in goods), which are relevant when analyzing trade barriers to protect animals, the environment at large, human health or public morals. In a historical perspective—and without getting into economic analysis and historical descriptions—it is worth understanding that with the advent of the GATT1 and its successive rounds, the “old protectionism”— high tariffs—was eliminated.2 The GATT did thus not aim at abolishing tariffs but allowed for bound tariffs while eliminating non-tariff barriers (NTBs).3 The trade measures in focus in this book are NTBs but could equally have been high tariff barriers erected to effectively keep out goods from the domestic market. NTBs are, however, more complex to analyze in the WTO system and, as illuminated in this chapter, NTBs arising out of environmental, human health or public morals can be analyzed in three different agreements: the GATT, the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement)4 and/or the Agreement on Technical Barriers to Trade (TBT Agreement).5 This book focuses primarily on GATT Article XX, but the other agreements are also introduced in order to give a broader overview. It is, moreover, important 1 See the General Agreement on Tariffs and Trade, Oct. 30, 1947, 55 U.N.T.S. 194 [hereinafter GATT 1947], which is now incorporated into GATT 1994; see the General Agreement on Tariffs and Trade, Apr. 15, 1994, WTO Agreement Annex 1A, Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 1125 (1994) [hereinafter GATT 1994]. 2 See Robert Gilpin, The Political Economy of International Relations, in RAJ BHALA, INTERNATIONAL TRADE LAW: THEORY AND PRACTICE, at 499 (2001). 3

See, e.g., GATT Articles I, II, III, XI.

See Agreement on the Application of Sanitary and Phytosanity Measures, Apr. 15, 1994, WTO Agreement Annex 1A, Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 1125 (1994) [hereinafter SPS Agreement]. 4

5 See Agreement on Technical Barriers to Trade, Apr. 15, 1994, WTO Agreement Annex 1A, Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 1125 (1994) [hereinafter TBT Agreement].

125

126 • The WTO, Animals and PPMs

to understand the analytical differences between the GATT and the two more specialized agreements (SPS and TBT), because they are utilized in certain de lege ferenda considerations for improvement of the GATT. In the following sections, the three agreements are introduced: first, general observations, scope and burden of proof; and, second, the substance of the agreements. 1.1 The GATT GATT applies to all trade in goods, except where a more specialized agreement applies. The GATT analysis of trade barriers is a two-step analysis: general rule-exception type analysis. The first step is to analyze whether there is a violation of one of the “substantive obligations.” GATT Articles I, III and XI are the substantive obligations in issue, and they consist, by and large, of rules to ensure nondiscrimination among countries and vis-à-vis foreign goods, as well as a general prohibition of quotas. The rules laid down in GATT Articles I, III and XI are prohibitive norms that are unconditional in the manner that they apply to all measures, i.e., unconditional obligation not to do something (namely create trade barriers in form of discrimination, quotas, etc.)— hence the name “substantive obligations.” The second step proceeds once a violation of one of these substantive obligations is found, and the defending party invokes one of the General Exceptions in GATT Article XX. As noted in Chapter 2, it is common that exceptions have “conditions” attached to them, hence, the name “conditional rights.” The Appellate Body also recognizes that the General Exceptions in GATT Article XX is a right in a passage, which cites to preparatory work dating back to the ITO negotiations: It is, accordingly, important to underscore that the purpose and object of the introductory clauses of Article XX is generally the prevention of “abuse of the exceptions of [what was later to become] Article [XX] [footnote citing to preparatory work on Article XX is omitted].” This insight drawn from the drafting history of Article XX is a valuable one. The chapeau is animated by the principle that while the exceptions of Article XX may be invoked as a matter of legal right, they should not be so applied as to frustrate or defeat the legal obligations of the holder of the right under the substantive rules of the General Agreement. If those exceptions are not to be abused or misused, in other words, the measures falling within the particular exceptions must be applied

GATT, SPS and TBT • 127

reasonably, with due regard both to the legal duties of the party claiming the exception and the legal rights of the other parties concerned.6 The core analysis in this book is thus, inter alia, an analysis of whether the “conditions” in GATT Article XX are met by the party invoking them. 1.2 The SPS Agreement The SPS Agreement deals with “sanitary and phytosanitary” trade measures. Historically, the SPS Agreement is an expansion of sub-section (b) of GATT Article XX.7 The SPS Agreement is therefore developed as a response to the practical need to ensure food safety, as well as animal and plant safety (by and large in the production of food, e.g., foot and mouth disease). 1.2.1

Coverage Area for the SPS Agreement

The coverage area of the agreement is laid down in its Annex A, which reads as follows: Any measure applied: (a) to protect animal or plant life or health within the territory of the Member from risks arising from the entry, establishment or spread of pests, diseases, disease-carrying organisms or disease-causing organisms; (b) to protect human or animal life or health within the territory of the Member from risks arising from additives, contaminants, toxins or disease-causing organisms in a foods, beverages or feedstuffs; (c) to protect human life or health within the territory of the Member from risks arising from a diseases carried by animals, plants or products thereof, or from the entry, establishment or spread of pests; or (d) to prevent or limit other damage within the territory of the Member from the entry, establishment, or spread of pests. 6 United States—Standards for Reformulated and Conventional Gasoline, WT/DS2/AB, Apr. 29, 1996, at 22–23 [hereinafter U.S.—Gasoline Appellate Body Report] (emphasis added). 7 See SPS Agreement, Preamble. See generally, Understanding the WTO Agreement on Sanitary and Phytosanitary Measures, available at http://www.wto.org, click on “Trade Topics” and choose “Trade in Goods” and “SPS.”

128 • The WTO, Animals and PPMs

Sanitary and phytosanitary measures include all relevant laws, decrees, regulations, requirements and procedures including, inter alia, end product criteria; processes and production methods; testing, insection, certification and approval procedures; quarantine treatments including relevant requirements associated with transport of animals or plants, or with the materials necessary for their survival during transport. It should be noted that the SPS Agreement does not apply to any morally founded measures, including animal welfare. It is an agreement designed to deal with scientifically verifiable risks regarding food and production of food. It can, however, apply to certain environmentally related measures, but it is not aimed at covering environmental measures per se, and many environmentally motivated measures will therefore not fall under the agreement (but under the GATT and/or TBT). One example of an environmentally related SPS measure is if a country prohibits imports of food or foodstuff with any or beyond a certain limit of, e.g., pesticides or other toxins. This type of measure will be taken to protect either human or animal health, but since it curbes pesticides or toxins, it can equally be said to be environmentally related, and this puts the SPS Agreement within the scope of environmentally related trade barriers. More direct examples of environmental protection under SPS would be that of organic products. Organic products are, by their nature, dual in their aim, as they are considered to be healthier for humans to eat but also environmentally friendly in their production. The EC—GMO Panel Report illuminates how an environmentally related trade measure can fall within the scope of the SPS Agreement. 1.2.2

The EC—GMO Case—Panel Report

The EC—GMO Panel Report came out in the end of September 2006 and dealt with the EC legislation on GMO products.8 The panel analyzed whether the aim to protect “human health and the environment” in the relevant EC directives fell within the scope of the SPS Agreement.9 The panel understood environmental protection as being the protection of animal and plant health and held that “to the extent Directives 90/220 and 2001/18 are applied to protect animals and plants as part of their purpose of protecting the environment, they are not a priori excluded from the 8 See European Communities—Measures Affecting the Approval and Marketing of Biotech Products, Report by the Panel, May 29, 2006, WT/DS291/R, WT/DS293/R, paras. 7.47–7.48, 7.97–7.102 [hereinafter EC—GMO Panel Report]. 9

See id. at para. 7.196.

GATT, SPS and TBT • 129

scope of application of the SPS Agreement.”10 The panel then went on to analyze whether the directives to protect the environment fell within the definition in Annex A(1)(A).11 The most noticeable interpretation of the Annex was the broad interpretation of “pests,” which could be characterized as an evolutionary interpretation that adapts modern-day concerns and more old fashions terms: The Panel recalls in this regard that the purpose of Directive 2001/18 is to avoid adverse effects arising from the “deliberate release into the environment” of GMOs. The term “deliberate release” is defined as “any intentional introduction into the environment of a GMO.” Annex II.C.2.1 to Directive 2001/18 specifies that potential adverse effects of GMOs may include disease to animals and plants. It is clear to us that the purpose of avoiding disease in general includes the purpose of avoiding, more specifically, the “entry, establishment or spread” of “diseases.” Furthermore, Annex C.2.1 specifies that effects on the dynamics of populations of species and genetic diversity of populations are relevant adverse effects. These effects relate to potential “pest effects” of GMOs which could occur, inter alia, through the spread of pollen from genetically modified plants to other plants (“out-crossing”), or through the development of persistence or “invasiveness” of the GMO or GM plant due to a selective advantage. We think that the purpose of avoiding “pest effects” of GMOs includes the purpose of avoiding the “entry, establishment or spread” of GMOs as “pests.”12 The panel, however, also analyzed whether the specific threats posed by GMOs to the environment could be characterized as “pests.” The first threat is that GMO plants could grow where they are undesired (i.e., the issue of invasive alien species).13 The panel held that protection against invasive alien species fell within the scope of Annex A(1)(a): We consider that these potential effects of GM plants relate to situations where GM plants grow where they are undesired. In such situations, due to a potential competitive advantage, persistence and invasiveness, GM plants may crowd out or eliminate other plants. Competitive pressure from GM plants may also affect the genetic diversity of remaining plant populations, putting at risk the 10

Id. at para. 7.207.

11

See id. at para. 7.212.

12

Id. at para. 7.231 (footnotes omitted, emphasis in original).

13

See id. at para. 7.243.

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survival of certain plant species. As these potential effects of GM plants impact negatively on the ability of other plants to exist and survive in the affected area, we think they can be considered to cause harm to the “life or health” of other plants. In other words, we think that by causing harm in the aforementioned ways, GM plants would act as “pests” within the meaning of Annex A(1)(a).14 The next issue was whether the risk of cross-breeding could be considered as a pest within Annex A(1)(a).15 On this issue, the panel also took a very broad view of what could be considered a pest within the meaning of the Annex: We recognize that Directives 90/220 and 2001/18 are measures applied in respect of, and primarily concerned with, GMOs rather than their cross-breeds. Nonetheless, we think the Directives can be viewed as measures protecting from risks arising from crossbreeds of GM plants, given that the relevant cross-breeds would be an effect of the deliberate release of GM plants into the environment. . . . [T]here is a rational relationship between controlling the release into the environment of GM plants which might crossbreed with other plants and the purpose of protecting animal or plant life or health from risks arising from the entry, spread or establishment of cross-breads with undesired traits. Also, there is nothing in the text of Annex A(1) to suggest that the product subject to an SPS measure—in this case, a GM plant to be released into the environment—need itself be the pest which gives rise to the risks from which the measure seeks to protect.16 The next issue was the issue of “pesticide-producing (e.g., insecticideproducing) GM plants increase the potential for the development of pesticide-resistance in target and non-target organisms . . . could be considered a ‘pest’ within the meaning of Annex A(1).”17 And again on this issue, the panel gave a broad interpretation of what falls under the Annex: For the purposes of the present dispute, it is not necessary for us to take a position on whether a GM plant to which target or nontarget organisms (i.e., insect populations) develop resistance, with the result that more or different pesticides need to be used to con14

Id. at para. 7.247 (footnote omitted).

15

See id. at para. 7.248.

16

Id. at para. 7.258.

17

See id. at para. 7.259.

GATT, SPS and TBT • 131

trol the resistant organisms and that other non-target organisms are negatively affected by the pesticide use, could be viewed as a “pest” within the meaning of Annex A(1). Even if a GM plant to which insect populations develop resistance were not viewed as a “pest,” we think the resistant target or non-target organisms (i.e., the resistant insects) could be regarded as “pests” within the meaning of Annex A(1), inasmuch as they present a risk to animal, plant or human life or health or result in other damage. In fact, pesticide-producing or pesticide-resistant GM plants are cultivated precisely because the target organisms are considered “pests.”18 Finally, the panel also held that: In the light of the foregoing, to the extent that Directives 90/220 and 2001/18 seek to avoid adverse effects on the environment which involve adverse effects on the life or health of non-target organisms (animals and plants) and which arise from the management techniques associated with GMOs, we consider that the Directives can be viewed as measures applied to protect the life or health of animals or plants from risks arising indirectly from the entry, establishment or spread of weeds qua “pests.”19 The panel then went on to analyze the issue of disease or disease carrying organisms—or disease causing organisms.20 On this issue, the panel also took a very broad view of what is included in the Annex and held that: The potential risks to animal life or health which are at issue in the situation we are considering would be the direct or indirect result of pathogens which have or might become resistant to antibiotics due to the transfer of genetic material from a GM plant containing an ARMG. Hence, there is a rational relationship between controlling the release into the environment of GM plants containing an ARMG and the purpose of protecting animal life or health from risks arising from the entry, spread or establishment of disease-causing organisms and diseases. Also, we recall that there is nothing in the text of Annex A(1) to suggest that the product subject to an SPS measure—in this case, a GM plant containing an ARMG to be released into the environment—need itself be the dis-

18

Id. at para. 7.263.

19

Id. at para. 7.275.

20

See id. at para. 7.276.

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ease-causing organism, or the disease, which gives rise to the risks from which the measure seeks to protect.21 The EC—GMO case cannot be summarized here in its entirety, because it is so long, but the above excerpts of the panel’s holdings serve to illuminate that the scope of the SPS Agreement may be broader than—at least this author—had first expected. Consequently, environmentally related measures may in the future be adjudicated under the SPS Agreement rather than under TBT or the GATT, unless the Appellate Body overturns the holdings by the panel in the event of the likely appeal. 1.2.3

SPS Measures Are Trade Barriers

If a measure falls within the SPS Agreement, the measure is already presumed to be a trade barrier.22 The logic of first finding a violation of a substantive obligation and then applying the exception is thus changed in this agreement because the agreement per se deals with the “exception” to the special area of SPS measures; recall also the SPS Agreement historically is an expansion of sub-section (b) of GATT Article XX. If the SPS Agreement should be categorized according to Kelsen, the “conditional right” in GATT Article X(b) (where the “conditions” consisted of some “obligations”) has thus been transformed into resembling “positive obligations” for purposes of SPS measures. They are, however, “positive obligations” with the caveat that while there is an obligation to meet certain criteria when deciding to enact or maintain a SPS measure, clearly, it is not an obligation to have such measures. The SPS Agreement is nevertheless not an exception, i.e., a conditional right in the sense of Article XX (b). This is illuminated in the EC—Hormones case, where the panel in the Canadian proceedings asserted: Article XX(b), which is not limited to sanitary or phytosanitary measures, provides for a general exception which can be invoked to justify any violation of another GATT provision. The SPS Agreement, on the other hand, provides for specific obligations to be met in order for a Member to enact or maintain specific types of measures, namely sanitary and phytosanitary measures.23

21

Id. at para. 7.284.

22

See SPS Agreement Preamble and Article 1.1.

23 European Communities—Measures Concerning Meat and Meat Products, Report of the Panel (Canada), WT/DS48/R/CAN, Aug. 18, 1997, para. 8.42 [hereinafter EC— Hormones Panel Report (Canada)].

GATT, SPS and TBT • 133

As to the substance, the SPS Agreement essentially lays down the conditions for whether a SPS measure is legal, which, inter alia, depends on whether the measure is based on an international standard and, if not, whether there is a scientific justification for the measure. 1.3 The TBT Agreement The TBT Agreement applies to all technical regulations.24 The agreement is similar to the SPS Agreement in the sense that it deals with trade barriers, and it per se functions as an exception.25 The TBT Agreement applies to both industrial and agricultural goods, except for those falling within the scope of the SPS Agreement.26 The test of whether the trade measure in issue falls within the area of the TBT Agreement is a determination of whether it falls within the definition as laid down in Annex 1.1: Document which lays down product characteristics or their related processes and production methods, including the applicable administrative provisions, with which compliance is mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process or production method. The EC—Asbestos case shed some light on the issue of how to determine whether a trade measure falls within the scope of the TBT Agreement. In EC—Asbestos, the panel decided to analyze the part of the French measure that was a “prohibition” separate from the “exceptions” for the purposes of TBT Annex 1.1, i.e., whether the measure falls within the TBT Agreement.27 The part of the French measure that constituted the “prohibition” was found not be a technical regulation within the meaning of the TBT Agreement, whereas the “exceptions” did constitute a technical regulation.28 Consequently, the French measure was found not to constitute a 24

Including voluntary standards, see TBT Agreement, Annex 1.2.

Both SPS and TBT are considered to originate out of the Tokyo Round Standards Code. See, e.g., Understanding the WTO Agreement on Sanitary and Phytosanitary Measures, available at http://www.wto.org, click on “Trade Topics” and choose “Trade in Goods” and “SPS.” 25

26

TBT Agreement Article 1.3 and 1.5.

See European Communities—Measures Affecting Asbestos and Asbestos Containing Products, Report of the Panel, WT/DS135/R, Sept. 18, 2000, para. 8.31 [hereinafter EC—Asbestos Panel Report]. 27

28

See id. at para. 8.72.

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technical regulation.29 The Appellate Body, however, reversed the findings of the panel and held that a measure should be examined in its entirety.30 The Appellate Body, furthermore, held that the measure in its entirety fell within the TBT Agreement.31 As to the substance, the agreement, by and large, functions “to ensure that technical regulations and standards, including packaging, marking and labelling requirements, and procedures for assessment of conformity with technical regulations and standards do not create unnecessary obstacles to international trade.”32 1.4 Choosing Between the Agreements According to case law, the choice of law is guided by the lex specialis principle.33 Moreover, if the SPS Agreement applies to a measure, the TBT

29

See id. at para. 8.73.

See European Communities—Measures Affecting Asbestos and Asbestos Containing Products, Report of the Appellate Body, Mar. 12, 2001, WT/DS135/AB/R, at para. 64–65 [hereinafter EC—Asbestos Appellate Body Report]. 30

31

See id. at 75–76.

32

TBT Agreement, at Preamble.

For issues between the GATT and more specialized Agreements, See, e.g., European Community—Importation, Sale and Distribution of Bananas Appellate Body Report, Sept. 9, 1997, WT/DS27/AB/R, para. 204 [hereinafter EC—Bananas Appellate Body Report], (holding that both the Agreement on Import Licenses and the GATT applied, but the former should be applied as it dealt with the issue “specifically, and in detail”). For GATT and TBT, see European Communities—Trade Description of Sardines, Report of the Panel, WT/DS231/R, May 29, 2002, para. 7.16 [hereinafter EC— Sardines Panel Report] (holding that the TBT Agreement and GATT applied, but that the TBT Agreement dealt “specifically, and in detail” with technical regulations). But see United States—Standards for Reformulated and Conventional Gasoline, Report of the Panel, WT/DS2/R, Jan. 29, 1996, para. 6.43 [hereinafter U.S.—Gasoline Panel Report] (where the panel chose not to opine on TBT, as it had already reached conclusion under GATT, which was not opined upon due to procedural issues by the Appellate Body in U.S.—Gasoline, supra note 6, at 11–12). For GATT and SPS, the approach is, however, slightly different, see EC—Hormones Panel Report (Canada), supra note 23, at paras. 8.45 (holding that although both the SPS Agreement and the GATT applied, the SPS Article 3.2 presumed conformity with GATT and the SPS Agreement should thus first be analyzed; i.e., the panel did not touch upon the issue of lex specialis. The issue was not on appeal and thus not opined on in the Appellate Body Report); European Communities—Measures Concerning Meat and Meat Products, Report of the Panel (USA), WT/DS26/R/USA, Aug. 18, 1997, para. 8.42 [hereinafter EC—Hormones Panel Report (USA)]; Australia—Measures Affecting Importation of Salmon, Report of the Panel, WT/DS18/R, June 12, 1998, para. 8.39 [hereinafter Australia—Salmon Panel Report] (citing EC—Hormones). 33

GATT, SPS and TBT • 135

Agreement does not apply.34 This also means that even if no violation of the SPS Agreement is found, a measure cannot alternatively be considered under the TBT Agreement once it has been decided that it should be analyzed under the SPS Agreement.35 In the EC—Asbestos case, the panel clarified that although a measure has been notified to the TBT Committee in accordance with TBT Article 2.9.2, this did not constitute an estoppel in the sense that the TBT Agreement automatically would apply.36 Guessing what agreement—and even what article of an agreement— will be analyzed in the event of a dispute is, however, not an easy to task. If a panel chooses the “wrong” agreement or article, the DSU does not provide for a remand procedure, and the Appellate Body is thus not capable of analyzing the more “correct” agreement or article in issue.37 This may, nevertheless, change after the conclusion of the DSU negotiations, which, thus far, proceeds with no deadline.38 Both confusion and lack of remand procedure is evidenced in the EC—Asbestos case where Canada argued that the EC measure was in violation of the TBT Agreement, GATT Articles III and XI and, in the alternative, a non-violation claim under GATT Article XXIII:1(b).39 The panel did not find that the TBT Agreement applied and thus analyzed the issue under the GATT.40 The panel found a violation of Article III, and, due to

34 See TBT Agreement Article 1.5. See also EC—Hormones Panel Report (Canada), supra note 23, at para. 8.32 n.341 (noting that SPS Agreement Article 1.4 is less explicit, but has the same meaning); EC—Hormones Panel Report (USA), supra note 33, at para. 8.29 n.236; EC—GMO Panel Report, supra note 8, at paras. 7.2524–7.2527. 35

See EC—GMO Panel Report, supra note 8, at para. 7.2527.

36 For the French Notification of Asbestos Measure, see G/TBT/Notif.97/55; WT/DS135R at para. 8.60. 37 See, e.g., Chairman’s Text of May 28, 2003, DSU as proposed amended Articles 17:12 and 17bis, reprinted in TN/DS/9. 38 According to the Doha Ministerial Declaration paras. 30 and 47, the negotiations of the text of the DSU are not included in the single undertaking; i.e., the negotiations are treated separate from the other negotiations and have separate datelines. Moreover, according to the Doha Ministerial Declaration para. 30, the negotiations of the DSU should have been concluded in May 2003, but was extended to May 2004 by the General Council on July 24–25, 2003, WT/GC/M/81, paras. 71–75. In July 2004, the General Council decided to continue negotiations without a firm deadline, see WT/GC/W/535, at 3—and this was reiterated in by the Ministerial in Hong Kong; see the Hong Kong Ministerial Declaration, para. 34. 39

EC—Asbestos Panel Report, supra note 27, at paras. 1.2, 3.1–3.2.

40

See id. at paras. 8.72–8.73.

136 • The WTO, Animals and PPMs

judicial economy, the panel chose not to analyze Article XI.41 The panel did, however, analyze the non-violation claim and found there was no nonviolation case in this instance.42 The Appellate Body conversely found the measure to fall within the scope of the TBT Agreement, but could not analyze this agreement, because the panel had made no factual findings under this agreement.43 It is therefore evident that many discussions that nowadays are analyzed under GATT may in the future be analyzed under the TBT. 1.5 Burden of Proof Differences Between SPS/TBT and GATT The issue of burden of proof is laid down in DSU Article 3.8, which is considered a codification of GATT practice on the matter.44 DSU Article 3.8 reads as follows: In cases where there is an infringement of the obligations assumed under a covered agreement, the action is considered prima facie to constitute a case of nullification or impairment. This means that there is normally a presumption that a breach of the rules has an adverse impact on other Members parties to that covered agreement, and in such cases, it shall be up to the Member against whom the complaint has been brought to rebut the charge. One case, which is often recalled45 by panels and the Appellate Body regarding burden of proof is the early WTO case U.S.—Shirts and Blouses, where the Appellate Body opined that: the burden of proof rests upon the party, whether complaining or defending, who asserts the affirmative of a particular claim or defence. If that party adduces evidence sufficient to raise a presumption that what is claimed is true, the burden then shifts to the other party, who will fail unless it adduces sufficient evidence to rebut the presumption.

41

See id. at para. 8.159.

42

See id. at 8.304.

43

See EC—Asbestos Appellate Body Report, supra note 30, at paras. 78–83.

See United States—Measures Affecting Imports of Woven Wool Shirts and Blouses From India, Report of the Appellate Body, WT/DS33/AB/R, Apr. 25, 1997, at 14 [hereinafter U.S.—Shirts and Blouses Appellate Body Report]. 44

45 See, e.g., GATT/WTO Dispute Settlement Practice Relating to GATT Article XX, Paragraphs (b), (d) and (g), WT/CTE/W 203, at para. 6 n.16 [hereafter CTE note].

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In the context of the GATT 1994 and the WTO Agreement, precisely how much and precisely what kind of evidence will be required to establish such a presumption will necessarily vary from measure to measure, provision to provision, and case to case.46 The arbitration panel in the EC—Hormones case put it even more plainly: WTO Members, as sovereign entities, can be presumed to act in conformity with their WTO obligations. A party claiming that a Member has acted inconsistently with WTO rules bears the burden of proving that inconsistency. The act at issue here is the US proposal to suspend concessions. The WTO rule in question is Article 22.4 prescribing that the level of suspension be equivalent to the level of nullification and impairment. The EC challenges the conformity of the US proposal with the said WTO rule. It is thus for the EC to prove that the US proposal is inconsistent with Article 22.4. Following well-established WTO jurisprudence, this means that it is for the EC to submit arguments and evidence sufficient to establish a prima facie case or presumption that the level of suspension proposed by the US is not equivalent to the level of nullification and impairment caused by the EC hormone ban. Once the EC has done so, however, it is for the US to submit arguments and evidence sufficient to rebut that presumption. Should all arguments and evidence remain in equipoise, the EC, as the party bearing the original burden of proof, would lose.47 Recalling Kelsen’s four categories in Chapter 2, Section 2, it is thus up to the party claiming a violation of an “obligation” (positive or negative) to establish a prima facie case and for the defending party to rebut the claim.48 The crucial issue is thus which party bears the burden of proof for the invocation of an exception, i.e., a “conditional right. Recalling that certain

46 See U.S.—Shirts and Blouses Appellate Body Report, supra note 44, at page 15 (footnote omitted). 47 European Communities—Measures Concerning Meat and Meat Products (Hormones), Original Complaint by the Unites States, Recourse to Arbitration by the European Communities Under Article 22. of the DSU, WT/DS26/ARB, July 12, 1999, para. 9. 48 See, e.g., The report of the Working Party in The Australian Subsidy on Ammonium Sulphate, adopted Apr. 3, 1950, BISD Vol. II/188, para. 11. For a more detailed explanation, see Treatment by Germany of Imports of Sardines Adopted 31 October 1952, BISD 1S/53, para. 15; European Communities—Measures Concerning Meat and Meat Products, Report of the Appellate Body, WT/DS26/AB/R, WT/DS48/ AB/R, Jan. 16, 1998, para. 98 [hereinafter EC—Hormones Appellate Body Report].

138 • The WTO, Animals and PPMs

“obligations” are attached to the “conditional rights,” it would make sense if the party exercising the right equally bears the burden of proving that it lives up the “conditions” attached to the “right.” This logic has equally flourished in GATT panels having assigned the burden to the party invoking Article XX.49 Due to the fact that the TBT and SPS Agreements came into being with the WTO, cases and the rules for burden of proof in these two agreements are thus only to be found in the WTO case law. The analysis that has occurred in relation to assigning burden of proof under the TBT and SPS Agreements illuminates that the systematic approach developed in the GATT interpretation regarding general rule exception type analysis is not carried over into the SPS and TBT Agreements. Rather, it has been recognized that these agreements are elaborations on the “obligations” attached to a “conditional right,” and the burden has hence shifted to the party claiming a violation of the “obligations.” 1.5.1

SPS Article 3.1, 3.2 and 3.3

In EC—Hormones, the Appellate Body disagreed with the panels’ (both the Canadian and U.S. panels) findings regarding the relationship between SPS Article 3.1, 3.2 and 3.3 being equal to the GATT relationship between “obligations” and “exceptions.”50 The paragraphs of Article 3 read as follows: 1. To harmonize sanitary and phytosanitary measures on as wide a basis as possible, Members shall base their sanitary or phytosanitary measures on international standards, guidelines or recommendations, where they exist, except as otherwise provided for in this Agreement, and in particular in paragraph 3. 2. Sanitary or phytosanitary measures which conform to international standards, guidelines or recommendations shall be deemed to be necessary to protect human, animal or plant life or health, and presumed to be consistent with the relevant provisions of this Agreement and of GATT 1994. 49 See, e.g., Canada—Administration of Foreign Investment Review Act, adopted Feb. 7, 1984, BISD 30S/140, para. 5.20; United States—Section 337 of the Tariff Act of 1930, adopted Nov. 7, 1989, BISD 36S/345, para. 5.27; United States—Measures Affecting Alcoholic and Malt Beverages, adopted June 19, 1992, BISD 39S/206, paras. 5.41–5.43 and 5.52; U.S.—Gasoline Panel Report, supra note 33, at para. 6.20. 50

See EC—Hormones Appellate Body Report, supra note 48, at para. 104.

GATT, SPS and TBT • 139

3. Members may introduce or maintain sanitary or phytosanitary measures which result in a higher level of sanitary or phytosanitary protection than would be achieved by measures based on the relevant international standards, guidelines or recommendations, if there is a scientific justification, or as a consequence of the level of sanitary or phytosanitary protection a Member determines to be appropriate in accordance with the relevant provisions of paragraphs 1 through 8 of Article 5. [Footnote text: For the purposes of paragraph 3 of Article 3, there is a scientific justification if, on the basis of an examination and evaluation of available scientific information in conformity with the relevant provisions of this Agreement, a Member determines that the relevant international standards, guidelines or recommendations are not sufficient to achieve its appropriate level of sanitary or phytosanitary protection.] Notwithstanding the above, all measures which result in a level of sanitary or phytosanitary protection different from that which would be achieved by measures based on international standards, guidelines or recommendations shall not be inconsistent with any other provision of this Agreement. The Appellate Body opined that the relationship between Article 3.1 and 3.3 was that in those situations, a member has chosen to adopt higher standards than those laid down in an international standard, i.e., whether Article 3.3 situations were excluded from Article 3.1 and the burden of proof “[was] not avoided by simply describing that same provisions as an ‘exception’.”51 In other words, Article 3.3 is not an “exception” to Article 3.1. Therefore, the burden of proof rested upon the complainants: to demonstrate that the EC measures were inconsistent with the obligations assumed by the European Communities under each Article of the SPS Agreement addressed by the Panel, i.e., Articles 3.1, 3.3, 5.1 and 5.5. Only after such a prima facie determination had been made by the Panel may the onus be shifted to the European Communities to bring forward evidence and arguments to disprove the complaining party’s claim.52

51

See id.

52

See id.

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The burden of proof is thus only on the complaining party in spite of the specific reference to a presumption of conformity with the GATT for SPS measures based on international standards in SPS Article 3.2. The Appellate Body paid specific attention to this issue in the EC—Hormones case, and opined that this reference in SPS Article 3.2 “may well be an incentive . . . to conform their SPS measures to such standards. [Conversely,] . . . a decision . . . not to conform . . . does not authorize imposition of a special or generalized burden of proof upon that Member, which may, more often than not, amount to a penalty.53 1.5.2

TBT Agreement Article 2.4

In EC—Sardines, which was the first case to opine on the substantive laws of the TBT and not merely on Annex 1.1 to the Agreement, the EC raised the issue of whether the burden of proof rested on Peru (the original complainant) or the EC (the original defendant) regarding TBT Article 2.4, which reads as follows: Where technical regulations are required and relevant international standards exist or their completion is imminent, Members shall use them, or the relevant parts of them, as a basis for their technical regulations except when such international standards or relevant parts would be an ineffective or inappropriate means for the fulfillment of the legitimate objectives pursued, for instance because of fundamental climatic or geographical factors or fundamental technological problems. Again, on the issue of burden of proof, U.S.—Shirts and Blouses was part of the analysis in the EC—Sardines case. In EC—Sardines, the panel found that the burden of proof rested with the EC “as the party ‘assert[ing] the affirmative of a particular claim or defence,’ to demonstrate that the international standard is an ineffective or inappropriate means to fulfil the legitimate objectives pursued by the EC Regulation.”54 The panel thus divided TBT Article 2.4 into two parts, where the burden of proof shifted to the EC in the manner of an exception.55 The ruling in the EC—Hormones Appellate Body Report (stating that for the purposes of SPS Article 3.3, the burden of proof should not be shifted to the defendant by calling part of the clause 53 See id. at para. 102 (emphasis in original) (the Appellate Body did not mention that SPS Article 2.4 specifically mentions that measures that are in conformity with the SPS Agreement are presumed to be in conformity with the GATT, which supports the Appellate Body’s holding on the issue). 54

See EC—Sardines Panel Report, supra note 33, at para. 7.50.

55

See id.

GATT, SPS and TBT • 141

an “exception”) was mentioned, but it was assumed that it did “not have a direct bearing on the matter before us.”56 The Appellate Body, however, was of a different opinion regarding the relevance of its ruling in the EC—Hormones. In fact, the Appellate Body found “strong conceptual similarities” between SPS Article 3.1 and 3.3 and TBT Article 2.4 and stated that “the heart” of both SPS Articles 3.1 and 3.3 and TBT Article 2.4 was that the measures should be based on international standards, albeit the requirement was not absolute.57 As to the design of TBT Article 2.4, the Appellate Body found it was equal to that of SPS Article 3.1 and 3.3 in the sense that no “general rule-exception” relationship existed between either SPS Articles 3.1 and 3.3 or the first and the last part of TBT Article 2.4. Hence, the Appellate Body held that the burden of proof for both the first and the last part of TBT Article 2.4 was on Peru as the complaining member.58 2

THE SUBSTANTIVE OBLIGATIONS IN GATT

The following sections outline the substantive obligations, as well as the relevant exceptions in GATT Article XX. 2.1 GATT Article I Tariffs are covered by Article I, which sets forth the “most-favored nation Treatment” (MFN), which means that all members pay the same custom duties as the most-favored nation.59 Moreover, any other advantage offered to the most favored should also be offered to all other members. This essentially means that if a trade barrier—a ban, quota, higher tariff, etc.—is enacted to target products originating from one or some countries only, this would be contrary to Article I. Moreover, when determining the most-favored nation as the country to compare which trade benefits should also be accorded to other WTO members, it is worth noting that this country can also be a non-WTO member; e.g., if the EU offers duty-free treatment to Russia, who is currently not a member on widgets, this treatment applies to all WTO members—on the other hand, if the EU offers duty-free treatment on widgets to Jordan, who is a WTO member, this treatment does not have to be extended to Russia. 56

See id. at para. 7.50 n.70.

See European Communities—Trade Description of Sardines, Report of the Appellate Body, WT/DS231/AB/R, Sept. 26, 2002, para. 274 [hereinafter EC—Sardines Appellate Body Report]. 57

58

See id. at para. 275.

59

Tariffs are “bound” according to the principles of Article II.

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2.2 GATT Article III The “internal” treatment, i.e., treatment of, e.g., widgets after importation is laid down in Article III, which mandates that domestic and imported products are to be treated alike according to Article III—the “national treatment.”60 The analysis of Article III is twofold: (1) it is determined whether the products are “like” products; and (2), it is determined whether there is a difference in treatment. The text of Article III:1, 2 and 4 reads as follows: 1. The contracting parties recognize that internal taxes and other internal charges, and laws, regulations and requirements affecting the internal sale, offering for sale, purchase, transportation, distribution or use of products, and internal quantitative regulations requiring the mixture, processing or use of products in specified amounts or proportions, should not be applied to imported or domestic products so as to afford protection to domestic production.* 2. The products of the territory of any contracting party imported into the territory of any other contracting party shall not be subject, directly or indirectly, to internal taxes or other internal charges of any kind in excess of those applied, directly or indirectly, to like domestic products. Moreover, no contracting party shall otherwise apply internal taxes or other internal charges to imported or domestic products in a manner contrary to the principles set forth in paragraph 1.* * Add Article III:2, second sentence

A tax conforming to the requirements of the first sentence of paragraph 2 would be considered to be inconsistent with the provisions of the second sentence only in cases where competition was involved between, on the one hand, the taxed product and, on the other hand, a directly competitive or substitutable product which was not similarly taxed. 4. The products of the territory of any contracting party imported into the territory of any other contracting party shall be accorded 60 For an extended analysis of GATT Article III and developments in interpretation hereof, see BUGGE THORBJØRN DANIEL, WTO ADJUDICATIONS, at 266–319 (2005).

GATT, SPS and TBT • 143

treatment no less favourable than that accorded to like products of national origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution or use. The provisions of this paragraph shall not prevent the application of differential internal transportation charges which are based exclusively on the economic operation of the means of transport and not on the nationality of the product. Both paragraphs 2 and 4 of Article III utilize the Border Tax Adjustment test for deciding whether products are “like” products.61 The analysis includes four sub-tests, which are: end-uses; consumers’ tastes and habits; the product’s properties, nature and quality; and the criterion tariff classification.62 The test is a case-by-case test, where the “accordion” can stretch differently.63 2.2.1

Difference Between Article III:2 and III:4

Article III:2 and III:4 does not apply to the same kind of measures; Article III:2 applies to other types of internal taxes (a tariff duty is an external tax) and Article III:4 applies to other treatment. Another difference between the two sub-sections is that they have different language for the “like” product definition. In Japan—Alcohol, the Appellate Body described the difference between Article III:2, first and second sentence. The Appellate Body held that the “like” product definition in the first sentence is a narrow group of products vis-à-vis the “directly competitive or substitutable” group in the second sentence.64 For the narrow group of “like” products in the first sentence, the requirement is that the treatment must be identical, whereas for the larger group of “directly competitive or substitutable” products in second sentence, there could be a de minimis difference, and the difference should moreover be applied “as to afford protection” to the domestic products.65

61 See the 1970 Report of the Working Party on Border Tax Adjustments, BISD 18S/97. 62 See, e.g., Japan—Taxes on Alcohol Beverages, Report of the Appellate Body, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, Oct. 4, 1996, at 21 [hereinafter Japan—Alcohol Appellate Body Report]. 63 The Appellate Body utilized the word “accordion” when describing the test. See, e.g., EC—Asbestos Appellate Body Report, supra note 30, at para. 96. 64

See Japan—Alcohol Appellate Body Report, supra note 62, at 18, 25.

65

See id. at 23, 27–30.

144 • The WTO, Animals and PPMs

The scope of the “like” product definition and the differences in Article III:2 and III:4 was opined upon by the Appellate Body in EC— Asbestos where Article III:4 was analyzed (Article III:4 does not consist of two sentences): [W]e conclude that the scope of “like” in Article III:4 is broader than the scope of “like” in Article III:4 is broader than the scope of “like” in Article III:2, first sentence. Nonetheless, we note that, once more, that Article III:2 extends not only to “like products,” but also to products which are “directly competitive or substitutable,” and that Article III:4 extends only to “like products.” In view of this different language, and although we need not rule and do not rule, on the precise scope of Article III:4, we do conclude that the product scope of Article III:4, although broader than the first sentence of Article III:2, is certainly not broader than the combined scope of the two sentences of Article III:2 of the GATT 1994.66 2.2.2

Products as Such in Article III

When countries make cross-border attempts to protect the environment, the measures will violate the national treatment requirement, if they are viewed as discriminatory. The typical scenario is illustrated in the U.S.— Gasoline67 case, where the United States adopted a program for reformulating gasoline in order to protect the environment. The Appellate Body found that domestic and imported gasoline were “like” products and that importers were treated less favorably than domestic producers under the terms of the program. Thus, the United States violated Article III:4.68 The measure in issue in the U.S.—Gasoline case was a product-related process or production method regulating measure (PR-PPM).69 There is no problem in establishing that PR-PPMs can be analyzed under Article III.70 For purposes of measures enacted to protect animal welfare and/or environment, certain of these measures are non-product-related process and production methods (NPR-PPMs). This means that the process by which the products are made is sought to be regulated, albeit the final

66

EC—Asbestos Appellate Body Report, supra note 30, at para. 99.

67

See U.S.—Gasoline Appellate Body Report, supra note 6, at 22.

68

See id. at page 7.

69 See Chapter 8 on descriptions of PPMs and the difference between NPR-PPMs and PR-PPMs. 70

See also DANIEL, supra note 60, at 279–84.

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products do not differ in any way. It is questionable whether these types of measures are within the scope of Article III.71 The uncertainties stem from the U.S.—Tuna I and II cases, where the panels held that a measure, which was a NPR-PPM, could not fall within Article III, because the NPR-PPM did not affect Tuna as a product.72 The reason for not analyzing the NPR-PPM measures was not that Article III was designed to scrutinize internal measures but that these measures did not relate to the products. Both cases were subsequently analyzed under Article XI, which is aimed at external measures. In a later case, the U.S.— Automobiles case, the panel found that the non-product-related policies fell within the scope of Article III.73 It should, however, be noted that in this case, it was not possible to analyze the measure under Article XI as it had been in the two U.S.—Tuna cases, because in U.S.—Automobiles, the issue was purely internal, i.e., not border measures. This book does not aim at solving the issue of whether these measures should be judged under Article III or Article XI; but the book presupposes that one of the articles would be violated. On this issue, it may be of interest whether the measure is adjudicated under Article III or under Article XI, because the EC—Asbestos case perhaps opened up the possibility of finding measures legal under Article III by including other concerns in the product comparison (the “like” products test). In this case, the Appellate Body found human health to be considered within the Border Tax Adjustment tests, and a measure to protect human health was found legal for purposes of Article III.74 Hence, if NPR-PPMs are analyzed within Article III, and the PPM distinction is considered within the Border Tax Adjustment test, then the measure may be legal for purposes of Article III. The entire discussion may, however, be somewhat misguided, because the measure in EC—Asbestos was not supposed to be analyzed under the GATT 71 See, e.g., DANIEL, supra note 60, at 277–84; JOCHEN WEIRS, TRADE AND THE ENVIRONMENT IN THE EU AND WTO, at 276–84 (2002); MICHAEL J. TREBILCOCK. & ROBERT HOWSE, THE REGULATION OF INTERNATIONAL TRADE 406–13 (2d ed. 1999). 72 See, e.g., United States—Restrictions on Imports of Tuna, DS21/R- 39S/155, Report of the Panel, Sept. 3, 1991, unadopted, at para. 5.14 [hereinafter U.S.—Tuna I Panel Report]; United States—Restrictions on Imports of Tuna, DS29/R, Report of the Panel, June 16, 1994, unadopted, at para. 5.9 [hereinafter U.S.—Tuna II Panel Report]. 73 See United States—Taxes on Automobiles, DS31/R, Oct. 11, 1994, unadopted panel report, at paras. 5.1, 5.43–5.46, available at 1994 GATTPD LEXIS 8. 74 For an analysis of the Asbestos case, see Laura Yavitz (Nielsen), The World Trade Organization Appellate Body Report, European Communities—Measures Affecting Asbestos and Asbestos-Containing Products, Mar. 12, 2001, WT/DS135/AB/R, 11 MINN. J. GLOBAL TRADE 43 (2002) [hereinafter Yavitz (Nielsen), Asbestos].

146 • The WTO, Animals and PPMs

but under the TBT Agreement.75 To this special aspect of the case, the Appellate Body held: We note, however—and we emphasize—that this [i.e. that the measure fell within the scope of the TBT Agreement rather than the GATT] does not mean that all internal measures covered by Article III:4 of the GATT 1994 “affecting” the “sale, offering for sale, purchase, transportation, distribution or use” of a product are, necessarily, “technical regulations” under the TBT Agreement. Rather, we rule only that this particular measure, the Decree at stake, falls within the definition of a “technical regulation” given in Annex 1.1 of that Agreement.76 2.3 GATT Article XI Article XI covers trade measures at the border, i.e., import and export restrictions, by eliminating any kind of quantitative restrictions on imports: No prohibition or restriction other than duties, taxes or other charges, whether made effective through quotas, import or export licenses or other measures, shall be instituted or maintained by any contracting party on the importation or any product of the territory of any other contracting party or on the exportation or sale for export of any product destined for the territory of any other contracting party. 2.3.1

Import/Export Licenses

Non-automatic import and export licenses are one of the categories covered by Article XI. In Thailand—Cigarettes,77 a ten-year period with no issuance of import licenses on foreign cigarettes was found inconsistent with Article XI.78 In Japan—Semiconductors, delay up to three months on export licenses was found in violation of Article XI.79

75

See Section 1.3.

76

EC—Asbestos Appellate Body Report, supra note 30, at para. 77.

77 See Thailand—Restrictions on Importation of and Internal Taxes on Cigarettes, adopted on Nov. 7, 1990, SD10/R-37S/200 (Oct. 5, 1990), para. 73 [hereinafter Thailand —Cigarettes]. 78

See id. at para. 67.

79

See Japan—Trade in Semiconductors, Adopted May 4, 1988, BISD 35S/116, para.

118.

GATT, SPS and TBT • 147

2.3.2

Import Certification Programs

The import certification scheme in the U.S.—Tuna cases consists of two systems: one country-wide certification program and a shipment by shipment certification system. The focus of the cases, however, was, by and large, on the country-wide certification system. In the U.S.—Tuna cases, the panels analyzed the U.S. dolphin-friendly tuna fishing program under the Marina Mammal Protection Act (MMPA) applying to tuna caught in the Eastern Tropical Pacific Ocean (ETP).80 Dolphins are often found swimming over schools of tuna, where fishermen in the ETP, in the worst cases, “set” the nets on the dolphins to catch the tuna.81 Obviously, the dolphins drown, if they are unable to escape the nets, because they are mammals. Exactly how dolphin-friendly fishing methods are conducted is less clear from the facts of the cases, apart from that certain fishing methods are unsafe, such as driftnets and “setting on” the dolphins with purse-seine nets.82 However, by eliminating these two highly dolphin unsafe methods, the U.S. labeling program did actually diminish the mortality rate caused by U.S. fishermen from above 7 million from 1959–91 (i.e., and average of more than 200.000 dolphins per year) to 114 dolphins per year in 1995.83 The issue arose when a court, based on the MMPA, issued an embargo on yellowfin tuna and other products containing it, harvested in the ETP and applicable to Mexico, Venezuela and Vanuatu.84 The embargo was a total ban on imports, unless the importer could prove that the shipment was not harvested with purse-seine nets; i.e., they had to prove they used dolphin-friendly fishing methods.85 The embargo would be in effect in this manner until the Secretary of Commerce made positive findings that the incidental dolphin taking rate did not exceed that of the U.S. fishermen 80

See U.S.—Tuna I Panel Report, supra note 72, at paras. 2.2–2.3.

81

See id. at paras. 2.2, 2.4.

82

See id. at paras. 2.4, 2.12.

Information available from the Dolphin Safe Tuna Labeling Program, at http://mbgnet. mobot.org/salt/oceans/dolphin.htm. See also http://www.defenders. org/wildlife/new/ dolphins.html, confirming the 7 million, but not the 114 in 1995. But see Larry E. Craig & Jade West, Legislative Note from US Senate Republican Policy Committee, S. 39—The International Dolphin Conservation Program Act, July 23, 1997, available at http://www.senate.gov or http://www.senate.gov/~rpc/releases/1997/32-Tuna.jm.htm, who estimate higher numbers, but these may perhaps include dolphins killed by non-US fishermen as well. 83

84

See U.S.—Tuna I Panel Report, supra note 72, at para. 2.8.

85

See id.

148 • The WTO, Animals and PPMs

with more than 15 percent in an entire year;86 i.e., this could logically only be examined after the rate of the U.S. fishermen was determined. In other words, the United States could not allow any tuna import (except from the explicitly proven dolphin-friendly shipments) until Mexico had implemented a system that could be verified after a year had passed. This kind of embargo was found to fall within Article XI as an illegal import prohibition.87 Moreover, the secondary embargo also was found in violation of Article XI.88 The secondary embargo was an embargo of tuna from countries that bought tuna from the countries subject to the primary embargo: “the United States was refusing entry to “yellowfin tuna unless the importer declared that no yellowfin tuna or yellowfin tuna products in the shipment were harvested with purse-seine nets in the ETP by vessels of Mexico.”89 Another scheme that resembled the dolphin protection program was the scheme surrounding the U.S.—Shrimp case. The case arose out of the U.S. legislation under the Endangered Species Act of 1973 (ESA) concerning the protection of endangered sea turtles.90 A ruling in the U.S. Court of International Trade (CIT) found that the guidelines under Section 609 of Public Law 101–10291 should be changed and directed the Department of State “to prohibit not later than May 1, 1996 the importation of shrimp or products of shrimp wherever harvested in the wild with commercial fishing technology which may affect adversely those species of sea turtles the conservation of which is the subject of regulations promulgated by the Secretary of Commerce.”92 This led to the issuance of the revised guidelines (“1996 Guidelines”) to comply with the CIT order of December 1995.93 The new guidelines resemble the scenario from the U.S.—Tuna cases, albeit in this instance, the fishermen had to utilize turtle excluder devices (TEDs) and not dolphin-friendly fishing nets:

86

See id. at 2.7.

87

See id. at paras. 5.17–5.19.

88

See id. at para. 5.36.

89

See id. at para. 5.36.

See United States—Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Panel, WT/DS58/R, May 15, 1998, para. 2.4 [hereinafter U.S.—Shrimp Panel Report]. 90

91

Codified at 16 U.S.C. § 1537.

See Earth Island Institute v. Warren Christopher, 913 F. Supp. 559 (CIT 1995); U.S.—Shrimp Panel Report, supra note 90, para. 2.10. 92

93

See 61 Fed. Reg. 17342 (Apr. 19, 1996).

GATT, SPS and TBT • 149

The 1996 Guidelines define “shrimp or shrimp products harvested in conditions that does not affect sea turtles” to include: “(a) Shrimp harvested in an aquaculture facility . . . ; (b) Shrimp harvested by commercial shrimp trawl vessels using TEDs comparable in effectiveness to those required in the United States; (c) Shrimp harvested exclusively by means that do not involve the retrieval of fishing nets by mechanical devices or by vessels using gear that, in accordance with the US programme . . . would not require TEDs; (d) Species of shrimp, such as the pandalid species, harvested in areas in which sea turtles do not occur.”94 The country-wide certification was as follows: The 1996 Guidelines further determine the criteria for certifying a harvesting nation whose particular fishing environment “does not pose a threat of incidental taking of sea turtles in the course of commercial shrimp trawl harvesting” (Section 609 (b)(2)(C)) as follows: “(a) Any harvesting nation without any of the relevant species of sea turtles occurring in waters subject to its jurisdiction; (b) Any harvesting nation that harvests shrimp exclusively by means that do not pose a threat to sea turtles, e.g. any nation that harvests shrimp exclusively by artisanal means; (c) Any nation whose commercial shrimp trawling operations take place exclusively in waters subject to its jurisdiction in which sea turtles do not occur.”95 The program, however, also included other means of country-wide certification that, inter alia, required that countries should have programs that were “comparable” to that of the United States.96 The incidental taking rate was, however, unlike in the U.S.—Tuna cases, not linked to that of the U.S. fishermen, if a country could prove they utilized TEDs.97 Another ruling in the CIT, however, eliminated the possibility of certifying a separate shipment, even if it was caught with TEDs, if it originated from a non-certified country.98 The panel held that the measure fell within Article XI essentially for the same reasons as in the U.S.—Tuna cases99 where import restric-

94

See U.S.—Shrimp Panel Report, supra note 90, at para. 2.12.

95

See id. at para. 2.13.

96

See id. at para. 2.14.

97

See id.

98

See id. at para. 2.15.

99

See id. at n.623.

150 • The WTO, Animals and PPMs

tions—in this case a country-specific import ban—were considered within the scope of Article XI. The case did not address Article III. 2.3.3

Export Bans

The Canada—Herring—Salmon case is a good example of an export ban in violation of Article XI:1.100 The Canadian government had banned exports, from waters off British Columbia and the Pacific Ocean, of fresh sockeye and pink salmon and herring; i.e., salmon and herring could only be exported if they were canned, salted, dried, smoked, pickled or frozen— and inspected.101 This measure was found in violation of Article XI:1.102 2.4 Presupposing a Violation of the Substantive Obligations When searching for a violation of the substantive obligations, the complainant often invokes both Articles XI and III. The invocation of both articles on a practical level means that the panel decides which of the two (if not both) it finds applicable in the case. For purposes of this book, the complex relationship between the two articles is not the focus; the important issue is to understand conceptually whether a violation will be found in order to move on to the focus of the book—the analysis of the exception. The analyses in this book need to justify the reliance on GATT Article XI in a broad context, i.e., covering total bans, where no discrimination takes place, and more narrowly tailored regional bans. 2.4.1

Total Trade Bans and GATT Articles III and XI

In the event a country hosts an endangered species and enacts a total trade ban in that species, i.e., prohibition of domestic trading combined with export and import prohibition, the issue is which GATT Article will apply. Article III:4 applies to “internal” measures. But there may be a grey zone between what is a border measure and what is an internal measure, and this is not clarified after U.S.—Tuna and U.S.—Shrimp, where the measures can be argued to be “both.” Article XI has been utilized thus far. If,

100 See Canada—Measures Affecting Exports of Unprocessed Herring and Salmon [hereinafter Canada—Herring—Salmon], adopted Mar. 22, 1988, BISD 35S/98. 101

See id. at paras. 2.1–2.3.

102

See id. at para. 4.1.

GATT, SPS and TBT • 151

however, Article III is found applicable, the analysis depends on whether a “like” product is found. A hypothetical example could be a case regarding a total trade ban (designed with an internal measure) of an endangered species, which is a fur-bearing animal. The exporting (complainant) wants to sell furs from the endangered species and claims that the country holding the ban discriminates, because it, e.g., utilizes furs from mink and other non-endangered species—and these are “like” products. In the event of an Article III analysis, the “end uses” and “properties, nature and quality” may be found identical, and the entire analysis thus depends on whether the adjudicating body makes an inclusion of the argument that furs from endangered species are different than furs from non-endangered species. According to the Appellate Body in the EC—Asbestos case, the risk to the product should be included in the analysis of “properties, nature and quality” and “consumers’ tastes and habits.” Utilizing this precedent, there may thus not be a violation of Article III, but it nevertheless remains to be seen. If the measure also has some external features, such as import licensing schemes, as in the U.S.—Tuna and U.S.—Shrimp cases, Article XI can be utilized instead—or even after the failure of the Article III analysis. The Article XI:1 analysis is more straightforward. It should, however, be noted that this book utilizes the theory of a broad interpretation of Article XI:1, which means that this book operates with the notion that the scope of Article XI covers all quotas and bans. Economically a quota can have the same effect as a tariff; i.e., it limits the inflow of exports.103 Elimination of non-tariff barriers is however an integral part of the GATT.104 The question regarding Article XI is, hence, if the quota is viewed as being a protectionist measure to favorite domestic products, does Article XI extend to measures that are not protectionist at all? A measure that prohibits import and domestic production (and consumption) does not have any discriminatory element in it as opposed to the quota. The question is not answered in either U.S.—Tuna or U.S.—Shrimp, because both of these cases involved a PPM where neither tuna nor shrimp per se were prohibited but only those shrimp and tuna that were caught with unacceptable methods. A textual analysis supports that there is no requirement of a discriminatory element in Article XI:1. Moreover, if Article

103 For a good explanation of the different theories regarding protectionism via quotas and tariffs, see Melvyn Krauss, The New Protectionism, in BHALA, supra note 2, at 515–17. 104 How to reduce tariffs under the GATT system is explained in detail in Kenneth W. Dam, The GATT, in BHALA, supra note 2, at 294–99.

152 • The WTO, Animals and PPMs

XX(a) is supposed to have any meaning as an exception for “public morals,” it appears that Article XI:1 should be utilized for total bans. Article XX(a) most likely aims at allowing a country to ban import of items that are against “public morals.” If Article XI:1 were solely to prevent discrimination, a total export ban, coupled with a domestic ban, would not fall within the scope of Article XI, which would render the exception useless. The product scope in Article XX(a) is, e.g., heroin, meaning justification of bans on heroin. Article XX(a) was not meant to justify quotas only, which can be illuminated by the following absurd example: “Denmark only agrees to import 100 kg of heroin this year.” If Article XI:1 could not be utilized on total bans, only Article III could render a total trade ban in violation of the substantive obligations of the GATT—and this analysis depends on whether a domestic substitute product exists and whether there are certain “internal” features relating to the measure, which supposedly means it is not a border measure and thus perhaps not a total ban. The issue was close to being clarified in the EC—Asbestos case, where the French ban on asbestos was very close to a 100-percent ban—both domestically and on imports. In the EC—Asbestos case, Canada invoked both articles.105 The panel chose to analyze Article III first and found a violation thereof.106 The panel—by means of judicial economy—decided not to analyze Article XI.107 On appeal, the Appellate Body found that Article III was not violated.108 Article XI was, however, not appealed, and the Appellate Body did thus not opine on whether the measure would have been in violation of Article XI.109 It is, thus, not clear whether the measure in the EC—Asbestos case would have been in violation of Article XI:1. The closest, indication is that Article XI:I does cover total bans despite their diminished discriminatory effect, which is laid down in dictum in the EC— Asbestos Panel Report, where the panel posited that: if the Members had agreed that the TBT Agreement also applied to general bans, they would undoubtedly have mentioned it. It would appear that the purpose of the TBT Agreement is to prevent much more complex situations than a straightforward uncon-

105

See EC—Asbestos Panel Report, supra note 27, at paras. 1.2, 3.1–3.2.

106

Id. at 8.73.

107

Id. at 8.159.

108

See EC—Asbestos Appellate Body Report, supra note 30, at para. 148.

109

Id. at paras. 11–22.

GATT, SPS and TBT • 153

ditional ban on a product, which is covered by the very strict provisions in Article XI:1 of the GATT 1994110 2.4.2

Regional Bans and GATT Article XI

The scope of Article XI:1 would be put to a test, if a country prohibited trade in an endangered species from a specific region based on the species vulnerability in that specific area, or if a species is confined in its “pure” form in that particular area and hence is vulnerable to invasive alien species. The issue is whether there is a de minimis requirement to Article XI:1. Firstly, it should be noted that based on logical observations, certain regional areas must per se be considered as rising above a de minimis requirement, if such can be said to exist. An example of such a regional area could be, e.g., California, which has the fifth largest economy in the world.111 In the EC, a judgment was rendered where a measure applying only to a small island in Denmark (the issue of invasive alien bees from Chapter 4) was found to hinder trade (but was legalized under the exception).112 Secondly, in relation to the issue of local and regional governments, GATT Article XXIV:12 mandates that each country should be able to regulate the entire territory for purposes of trade, and a consistency of trade measures throughout a territory must be assumed to be the GATT standard. This means, that a local trade measure, according to GATT Article XXIV, can be judged under Article XI. Thirdly, the Canada—Herring—Salmon case, indicate that a regional export prohibition (in British Columbia) fell within the scope of Article XI:1.113 This case may, however, not be a “perfect” example, because the facts do not reveal whether the types of salmon and herring caught in the waters off British Columbia and in the Pacific Ocean (West Coast) could equally be caught on the East Coast. It appears to be assumed that these particular stocks of fish solely swim in the Pacific Ocean and not off the East Coast in the Atlantic Ocean, but it is, however, not 100-percent clear. If that, however, is the case, this essentially means that the ban could

110

EC—Asbestos Panel Report, supra note 27, at para. 8.49.

111 California has the fifth largest economy in the world, nearly the size of that of Germany. See http://www.lao.ca.gov/2002/cal_facts/econ.html. 112

See Case C-67/97, Criminal Proceedings against Ditlev Bluhme, Dec. 3, 1998.

113

See Canada—Herring—Salmon, supra note 100, at para. 4.1.

154 • The WTO, Animals and PPMs

equally had been country wide, but this was unnecessary, because those particular fish stocks did not exist off the East Coast. Finally, the issue may be clarified when reviewing GATT Article XXIII:1, where a case may be brought if “a benefit accruing to it directly or indirectly under this Agreement is being nullified or impaired.” This means that there is no requirement of quantification of the effect of a trade measure. The complaining party merely needs to establish that a measure (in this case a violation case) nullifies or impairs a benefit under the GATT, which, in this instance, is a benefit not to encounter quotas or import restrictions in the course of trade.114 For purposes of this book, it is assumed that even the smallest import or export prohibition falls within GATT Article XI—albeit it is unlikely that such cases will arise in reality due to its low value of trade, but it is nevertheless a possibility. 3

THE GATT EXCEPTION: GATT ARTICLE XX

The following sections consist of a few introductory remarks on the exception before the substance is illuminated in Section 4. 3.1 Coverage Area of GATT Article XX(a), (b) and (g) When a measure is found inconsistent with one of the substantive obligations under GATT, the conditional rights in Article XX become important to examine. In order to obtain examination of the exception by a panel, a party needs to expressly invoke it.115 Article XX(a), (b) and (g) reads as follows: Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction of international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:

114 On the issue of standing, it is not a requirement to have a “legal interest”; see Jacques H.J. Bourgeois, Some Reflections on the WTO Dispute Settlement System From a Practitioner’s Perspective, 4 J. INT’L ECON. L. 145, 149 (2001). 115 See United States—Imports of Sugar from Nicaragua, adopted on Mar. 13, 1984, B.I.S.D. 31S/67, para. 4.4.

GATT, SPS and TBT • 155

(a) necessary to protect public morals; (b) necessary to protect human, animal or plant life or health; . . . (g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption. Sub-section (b) refers directly to human health, which has led to case law regarding the so-called “environmental exceptions” in sub-section (b) and (g), which are often analyzed together with case law on human health. It is, thus, important to note that in the area of the WTO scholarly work, animal welfare protection, human health and environment are often just referred to as “environment.”116 Moreover, the Committee on Trade and Environment (CTE) itself refers to the exceptions in GATT Article XX(b), (d) and (g) as the environmental exceptions, understood in the “broad” sense as to also include human health.117 3.2 Sequence of Steps When analyzing Article XX, there is a particular order in which this must be done, i.e., a sequence of steps: In order that the justifying protection of GATT Article XX may be extended to it, the measure at issue must not only come under one or another of the particular exceptions—sections (a) to (j)—listed under Article XX; it must also satisfy the requirements imposed by the opening clauses of Article XX. The analysis is, in other words, two tiered: first, provisional justification by reason of characteriza-

See, e.g., MICHAEL TREBILCOCK & REPORT HOWSE, THE REGULATION OF INTERNATRADE 395–420 (2d ed. 1999), including both animal welfare cases such as Tuna, but excluding human health; Sanford E. Gaines, Processes and Production Methods: How to Produce Sound Policy for Environmental PPM-Based Trade Measures, 27 COLUM. J. ENVTL. L. 383, 384 (2002), referring to the protection of tuna fish in the Tuna cases as “sincere environmental motivation”; DANIEL, supra note 60, at 332–36, defining the scope of dissertation trade and environment issues and proceeding to analysis of GATT Article XX(b) and (g) including cases on animal welfare, environment and human health without further analysis of the difference; P.K. RAO, ENVIRONMENTAL TRADE DISPUTES AND THE WTO 44–54, 56–62 (2001) including human health, environment and animal welfare cases under the title “environmental trade disputes” without any further analysis of the difference, albeit the Tuna cases are analyzed as being an environmental issue based on a conservation approach. 116

TIONAL

117

See CTE note, supra note 45, at, 3.

156 • The WTO, Animals and PPMs

tion of the measure under XX(g); second, further appraisal of the same measure under the introductory clauses of Article XX.118 This particular sequence of steps was confirmed by the Appellate Body in U.S.—Shrimp where the panel had started with the chapeau analysis and thus reversed the sequence of steps.119 The Appellate Body did not approve of this reversed sequence of steps and stated: The sequence of steps indicated above [in the passage from the Gasoline case supra] in the analysis of a claim of justification under Article XX reflects, not inadvertence or random choice, but rather the fundamental structure and logic of Article XX. The Panel appears to suggest, albeit indirectly, that following the indicated sequence of steps, or the inverse thereof, does not make any difference. To the Panel, reversing the sequence set out in United States—Gasoline “seems equally appropriate.” We do not agree.120 In GATT cases, the sequence of steps varied. Some panels initiated the analyses by examining the chapeau of Article XX and thereafter the individual tests in each sub-section.121 Others started the analysis, as now determined by the U.S.—Gasoline case, with an analysis of the different steps of the sub-section.122 Therefore, while the older cases are included in this book, it is with the caveat that the different tests were not as developed or clearly defined as in the WTO case law. 4

THE “TESTS” IN GATT ARTICLE XX

The following section are an introduction into the issues surrounding GATT Article XX.

118

See U.S.—Gasoline Appellate Body Report, supra note 6, at 21–22.

119

See U.S.—Shrimp Panel Report, supra note 90, at paras. 7.26–7.62.

120 United States—Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body, WT/DS58/AB/R, Oct. 12, 1998, para. 119 [hereinafter U.S.—Shrimp Appellate Body Report] (footnote omitted). 121 See, e.g., United States—Prohibition of Imports of Tuna and Tuna Products From Canada [hereinafter U.S.—Canada Tuna], adopted Feb. 22, 1982, BISD 29S/91, para. 4.8. 122 See, e.g., Canada—Herring—Salmon, supra note 100, at para. 4.4; U.S.—Tuna I Panel Report, supra note 72, at paras. 5.24, 5.30.

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4.1 The “Policy” Test The “policy” test is the first test in the examination of the General Exceptions in GATT. It serves, by and large, as a mechanism to determine whether the policy behind a measure falls within the scope of any of the sub-sections in Article XX. Thus far, only one trade measure has ever failed the “policy” test. This was in the EC—GSP case.123 The “policy” test is an “easy” test as opposed to the subsequent trade tests in the individual sub-sections and the chapeau analysis. 4.1.1

”Policy” Test in Sub-Section (a)

Sub-section (a) consists of the policy to protect “public morals” and has never been analyzed by a panel. However, the counter-part to GATT Article XX(a) in the General Agreement on Trade in Services (GATS)124 can shed some light on the analysis, as it was analyzed in the U.S.—Gambling case.125 In U.S.—Gambling, the United States had imposed legislation that prevented services suppliers in Antigua from supplying U.S. customers with cross-border gambling and betting services.126 The United States argued it had imposed the laws in issue to curb organized crime,127 public health, safety, welfare, and the preservation of good order.128 The Appellate Body evaluated whether the U.S. measure fell within the scope of GATS Article XIV(a), which reads as follows: “necessary to protect public morals or to maintain public order.” This clause differs slightly from the clause in GATT 123 See European Communities—Conditions for the Granting of Tariff Preferences to Developing Countries, Report of the Appellate Body, Apr. 7, 2003, WT/DS246/AB/R [hereinafter EC—GSP Appellate Body Report]; European Communities—Conditions for the Granting of Tariff Preferences to Developing Countries, Report of the Panel, Dec. 1, 2003, WT/DS246/R [hereinafter EC—GSP Panel Report]. 124 See the General Agreement on Trade in Services, Apr. 15, 1994, WTO Agreement Annex 1B, Legal Instruments—Results of the Uruguay Round, 33 I. L. M. 1125 (1994) [hereinafter GATS]. 125 See United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, Report of the Appellate Body, Apr. 7, 2005, WT/DS285/AB/R [hereinafter U.S.—Gambling Appellate Body Report]. 126 See e.g., brief factual description in the U.S.—Gambling Appellate Body Report, supra note 125, at para. 1. 127 See United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, Report of the Panel, Nov. 10, 2004, WT/DS285/R, paras. 3.262–3.263 [hereinafter U.S.—Gambling Panel Report]. 128

See id. at para. 6.268.

158 • The WTO, Animals and PPMs

Article XX(a), which only covers “public morals” and not “to maintain public order.” The Appellate Body upheld the panel’s analysis of the policy area of sub-section (a), and the following therefore consists of the panel’s analysis of whether the U.S. policies fell within the scope the sub-section.129 The panel found the scope130 of the term “public morals” “denotes standards of right and wrong conduct maintained by or on behalf of a community or nation.”131 Thereafter, the panel found the scope of the term “public order” “refers to the preservation of the fundamental interests of a society, as reflected in public policy and law. These fundamental interests can relate, inter alia, to standards of law, security and morality.”132 While the panel concluded the policy scope for “public morals” and “public order” are supposed to be different, albeit with a margin for overlap, it nevertheless did not wish to classify whether the U.S. policies in issues were either “public morals” or “public order,” but the panel engaged in analyzing the policies under the umbrella of “public morals and public order.”133 Without specifically listing or mentioning the policies invoked by the United States, the panel concluded that: In light of the above, the Panel concludes that measures prohibiting gambling and betting services, including the supply of those services by the Internet, could fall within the scope of Article XIV(a) if they are enforced in pursuance of policies, the object and purpose of which is to “protect public morals” or “to maintain public order.”134 4.1.2

”Policy” Test in Sub-Section (b)

Sub-section (b) consists of the policies of protection for “human, animal or plant life or health.” In the Thailand—Cigarettes case, the panel opined that “in agreement with the parties in dispute and the expert from the WHO, the panel accepted that smoking constituted a serious risk to human health and . . .

129

See U.S.—Gambling Appellate Body Report, supra note 125, paras. 293–299.

130

See U.S.—Gambling Panel Report], supra note 127, paras. 6.459.

131

Id. at para. 6.465.

132

Id. at para. 6.467.

133

See id. at paras. 6.468–6.469.

134

Id.

GATT, SPS and TBT • 159

fell within the scope of Article XX(g).”135 This evidences that two factors were important to the panel: (1) parties agreed that policy fell within the scope; and (2) that an expert verified the policy. Risk to human health is a scientifically verifiable policy, which is also recognized in the EC— Asbestos case, where the panel began the test by verifying whether there indeed was a risk to human health.136 The panel thereafter opined that it was a long-standing practice that members were free to set their own level of protection.137 In the U.S.—Gasoline case, the parties to the dispute and the panel agreed that the policy fell within the scope of sub-section (b), because air pollution stemming from consumption of gasoline presented “health risks to humans, animals and plants.”138 Indeed, neither of the parties nor the panel made any further inquiries into the scope of the sub-section. In the EC—GSP case, the panel did not find the EC measure on curbing narcotics production and trafficking to fall within the scope of sub-section (b).139 Before getting into the reasoning of the panel, it is important to illuminate that the illegal trade measure in this case differed from the other cases analyzed in this book. The book has outlined the GATT Article XX analysis as one that, in the field of environmental and animal welfare measures, involves measures that are in violation of GATT Articles I, III or XI. The measure in the EC—GSP case was a measure that discriminated among the developing countries, which benefited from the Special Drug Arrangement in the EC system on tariff preferences.140 India challenged the measure, which only accorded the preferences in the Drug Arrangements to the certain countries.141 The measure was found in violation of the MFN clause in GATT Article I.142 The justification of the measure was, however, not primarily under GATT Article XX but under the Enabling Clause,143 which is the permanent waiver for the establishment of 135

See Thailand—Cigarettes, supra note 77, at para. 73.

136

See EC—Asbestos Panel Report, supra note 27, at para. 8.170.

Whether this indeed is a long-standing practice is slightly questionable as the footnotes and thus cited precedents in that report appears to be flawed. See EC—Asbestos Panel Report, supra note 27, at para. 8.179 and 8.171. 137

138

See U.S.—Gasoline Panel Report, supra note 33, at paras. 3.39, 3.45, 3.48, 6.21.

139

See EC—GSP Panel Report, supra note 123, at para. 7.210.

140

See id. paras. 2.1–2.8.

141

See id.

142

See id. at paras. 7.55–7.60.

143

See Differential and More Favourable Treatment Reciprocity and Fuller Parti-

160 • The WTO, Animals and PPMs

the Generalized System of Preferences (GSP).144 The GSP, through the Enabling Clause, makes it possible to grant tariff preferences to developing countries in deviation from GATT Article 1. The Enabling Clause is, in this manner, an exception to GATT Article 1. The EC GSP scheme on the Drug Arrangements, however, discriminated among the developing countries and was therefore found not to be in conformity with the Enabling Clause.145 The GATT Article XX was therefore analyzed after the analysis of the Enabling Clause.146 In the “policy” analysis, the panel did not find that the policy or value behind the measure was to protect human life or health.147 The structure of the measure did not give a direct link between the policy to protect human life or health in the EC and granting tariff preferences to some developing countries. Whether this approach to the “policy” test was correct, is analyzed in Section 4.4.1. U.S.—Tuna I was different than the other cases on sub-section (b), because the parties to the dispute did not agree that the policy to conserve dolphins fell within the scope of sub-section (b).148 In spite the disagreement among the parties, the panel, nevertheless, implicitly found the protection of dolphin life and health to fall within the scope of sub-section.149 In U.S.—Tuna II, the measure to protect dolphin life and health was equally found to fall within the scope of sub-section (b).150 The U.S.— Shrimp panel did not opine on whether the protection of sea turtles fell within the scope of sub-section (b), because it analyzed the chapeau first and not any policy areas.151 This was not opined upon by the Appellate Body, because it was only sub-section (g) that was on appeal.152

cipation of Developing Countries, Decision of Nov. 28, 1979, L/4903 [hereinafter Enabling Clause]. 144 See id., Article 1. See also, EC—GSP Panel Report, supra note 123, at para. 7.64, which is an overview of the GSP system and history. 145 See EC—GSP Panel Report, supra note 123, at paras. 7.176–7.177; EC—GSP Appellate Body Report, supra note 123, at paras. 126–189, which upheld the final conclusion that the Enabling Clause was not satisfied, albeit for different reasons. 146

See EC—GSP Panel Report, supra note 123, at para. 7.178.

147

See id. para. 7.201.

148

See U.S.—Tuna I Panel Report, supra note 72, at para. 3.30.

149

See id. at paras. 5.24–5.25.

150

See U.S.—Tuna II Panel Report, supra note 72, at para. 5.30.

151

See U.S.—Shrimp Panel Report, supra note 90, at paras. 7.26–7.62.

152

See Chapter 8, Section 2.2.2.1.

GATT, SPS and TBT • 161

The coverage area for sub-section (b) is analyzed further in Chapter 8, Section 2.2.2.1. 4.1.3

”Policy” Test in Sub-Section (g)

Sub-section (g) consists of the policies of “conservation of exhaustible natural resources.” In the earliest case examining the invocation of Article XX, the U.S.— Canada—Tuna case from 1982, regarding conservation of tuna fish, the panel merely noted that: “both parties considered tuna stocks, including albacore tuna, to be an exhaustible natural resource in need of conservation management and that both parties were participating in international conventions aimed, inter alia, at a better conservation of such stocks.”153 The panel, however, in this case, considered the measure to also contain a second policy, because it found that the measure was taken as a response to the Canadian gunboat diplomacy when Canada seized 19 U.S. fishing vessels, because they were fishing inside the 200-miles fishery zone, which was not recognized by the United States.154 On this issue, the panel held that it “could not find that this particular action would in itself constitute a measure of a type listed in Article XX.”155 In the Canada—Herring—Salmon case, the Canadian export ban on unprocessed species of salmon and herring, according to Canada, originated out of two policies, a conservation policy and a quality policy, where the latter brought about a very technical scheme of inspections to ensure that only high quality fish was exported from Canada.156 Canada invoked Article XX(g) with respect to the policy of conservation and Article XI:2(b) with respect to the quality/standard inspection restrictions.157 The panel held that it “agreed with the parties that Salmon and Herring stocks are ‘exhaustible natural resources’[sic]and the harvest limitations ‘restrictions on domestic production’ within the meaning of Article XX(g).”158 The U.S.—Tuna I case represents a shift, because the parties to the dispute did not agree that the policy in issue fell within the scope of sub-section (g). In U.S.—Tuna I, the policy pursued by the United States was to 153

See U.S.—Canada Tuna, supra note 121, at para. 4.9.

154

See id. at paras. 2.1, 4.13.

155

See id. at para. 4.13.

156

See Canada—Herring—Salmon, supra note 100, at paras. 3.3–3.4.

157

See id.

158

See id. at para. 4.4.

162 • The WTO, Animals and PPMs

reduce the incidental taking of dolphins. The panel implicitly accepted the policy of “conservation of Dolphins” in relation to the “related to” test.159 The U.S.—Tuna II panel equally accepted the policy within sub-section (g).160 In the case, which resembles the Tuna cases the most, the U.S.— Shrimp case, the policy was equally found to fall within the scope of sub-section (g).161 One of the more interesting holdings on the coverage area for sub-section (g) was delivered by the U.S.—Gasoline panel, which held that “clean air” fell within the scope of sub-section (g) as an exhaustible natural resource.162 Finally, it should be mentioned that there has not thus far been a case claiming that humans are exhaustible resources for the purposes of sub-section (g). 4.2 Subsequent Trade Tests Traditionally, scholarly work on GATT Article XX focuses on what this book calls the subsequent trade tests,163 i.e., the trade tests that are analyzed after the policy test. In the following sections, the main analytical issues are highlighted. 4.2.1

Sub-Sections (a) and (b): “Necessity” Test

The “necessity” test is identical for sub-sections (a), (b) and (d).164 The “necessity” test is a test of whether the trade measure in issue is “necessary” to achieve the policy goal in issue. The “necessity” test has only been satisfied once, albeit in dicta, which was in the EC—Asbestos case.165 The content of the “necessity” test was

159

See U.S.—Tuna I Panel Report, supra note 72, at para. 5.30.

160

See U.S.—Tuna II Panel Report, supra note 72, at para. 5.20.

161

See U.S.—Shrimp Appellate Body Report, supra note 120, at at para. 134.

162

See U.S.—Gasoline Panel Report, supra note 33, at para. 6.37.

See, e.g., ERNST-ULRICH PETERSMANN, THE GATT/WTO DISPUTE SETTLEMENT SYS92–134 (1997); DANIEL, supra note 60, at 332–53, who in particular focuses the analysis on the development in the interpretation of GATT Article XX. 163

TEM,

164 See Thailand—Cigarettes, supra note 77, at para. 74; U.S.-Gambling Panel Report, supra note 127, at para. 6.475. 165 See EC—Asbestos Appellate Body Report, supra note 30, at para. 175. The measure was not found illegal under Article III and the GATT Article XX analysis was hence superfluous and merely dicta.

GATT, SPS and TBT • 163

founded in the GATT era, where, inter alia, the Thailand—Cigarettes case defined the “least trade restrictiveness” test as: The Panel concluded from the above that the import restrictions imposed by Thailand could be considered to be “necessary” in terms of Article XX(b) only if there were no alternative measure consistent with the General Agreement, or less inconsistent with it, which Thailand could reasonably be expected to employ to achieve its health policy objectives.166 In Korea—Beef, the Appellate Body made an extensive analysis of the “necessity” test, including a textual analysis of the word “necessary:” Once again, we look first to the ordinary meaning of the word ‘necessary,’ in its context and in the light of the object and purpose of Article XX, in accordance with Article 31(1) of the Vienna Convention . . . We believe that, as used in the context of Article XX(d), the reach of the word “necessary” is not limited to that which is “indispensable” or “of absolute necessity” or “inevitable.” Measures which are indispensable or of absolute necessity or inevitable to secure compliance certainly fulfil the requirements of Article XX(d). But other measures, too, may fall within the ambit of this exception. As used in Article XX(d), the term “necessary” refers, in our view, to a range of degrees of necessity. At one end of this continuum lies “necessary” understood as “indispensable”; at the other end, is “necessary” taken to mean as “making a contribution to.” We consider that a “necessary” measure is, in this continuum, located significantly closer to the pole of “indispensable” than to the opposite pole of simply “making a contribution to.”167 The Appellate Body thereafter modified the “least trade restrictiveness” test into a “less trade restrictiveness” test, which resembles a type of proportionality testing: A measure with a relatively slight impact upon imported products might more easily be considered as “necessary” than a measure with intense or broader restrictive effects . . . determination of 166 Thailand—Cigarettes, supra note 77, at para. 75; CTE note, supra note 45, at paras. 35–43. 167 Korea—Measures Affecting Imports of Fresh, Chilled and Frozen Beef, Report of the Appellate Body, WT/DS161/AB/R, WT/DS169/AB/R, Dec. 11, 2000, para. 159–160.

164 • The WTO, Animals and PPMs

whether a measure, which is not “indispensable,” may nevertheless be “necessary” within the contemplation of Article XX(d), involves in every case a process of weighing and balancing a series of factors which prominently include the contribution made by the compliance measure to the enforcement of the law or regulation at issue, the importance of the common interests or values protected by that law or regulation, and the accompanying impact of the law or regulation on imports or exports.168 In U.S.—Gambling, the Appellate Body “reversed” the burden of proof regarding which party is to submit “alternative” measures in the evaluation of the less trade restrictiveness criterion—or as put by the Appellate Body: A comparison between the challenged measure and possible alternatives should then be undertaken, and the results of such comparison should be considered in the light of the importance of the interests at issue. It is on the basis of this “weighing and balancing” and comparison of measures, taking into account the interests or values at stake, that a panel determines whether a measure is “necessary” or, alternatively, whether another, WTO-consistent measure is “reasonably available.” The Appellate Body went on to concluding: It is well-established that a responding party invoking an affirmative defence bears the burden of demonstrating that its measure, found to be WTO-inconsistent, satisfies the requirements of the invoked defence. . . . In our view, however, it is not the responding party’s burden to show, in the first instance, that there are no reasonably available alternatives to achieve its objectives. In particular, a responding party need not identify the universe of less traderestrictive alternative measures and then show that none of those measures achieves the desired objective. The WTO agreements do not contemplate such an impracticable and, indeed, often impossible burden . . . If, however, the complaining party raises a WTO-consistent alternative measure that, in its view, the responding party should have taken, the responding party will be required to demonstrate why its challenged measure nevertheless remains “necessary” in the light of that alternative.169

168

Id. at paras. 163–164 (emphasis added).

U.S.—Gambling, Appellate Body Reports, supra note 125, at paras. 309–311 (footnotes omitted; emphasis added). 169

GATT, SPS and TBT • 165

4.2.2

Sub-Section (g): “Related to” and “In Conjunction With” Tests

The “related to” and “in conjunction with” tests are the counter-parts to the “necessity” test in sub-section (b). The tests in sub-section (g) are considered easier than the “necessity” test in sub-section (b), and sub-section (g) was approved before sub-section (b), which sparked some critical voices, because exhaustible natural resources seemed easier to protect than human life. The first test, the “related to” test, is a test of whether the trade measure is “primarily aimed at” the conservation policy in issue. This is, e.g., illuminated in the Canada—Herring—Salmon case: “whether the export prohibitions on certain unprocessed salmon and unprocessed herring maintained by Canada were primarily aimed at the conservation of salmon and herring stocks and rendering effective the restrictions on the harvesting of salmon and herring.”170 This test was equally utilized in the two “new” cases on sub-section (g); the U.S.—Gasoline and the U.S.—Shrimp cases. In U.S.—Gasoline, the panel explicitly referenced the “primarily aimed at” test as set forth in the Canada—Herring—Salmon Panel Report.171 The panel, however, misunderstood the test and held: “The Panel therefore concluded that the less favourable baseline establishment methods at issue in this case were not primarily aimed at the conservation of natural resources.”172 The misunderstanding lies in that the panel analyzed whether the discriminatory aspect of the trade measure was “primarily aimed at” the policy goal—and not whether the measure per se was “primarily aimed at” the conservation goal. This was, however, corrected by the Appellate Body, which held the correct test to be: “Against this background, we turn to the specific question of whether the baseline establishment rules are appropriately regarded as ‘primarily aimed at’ the conservation of natural resources for the purposes of Article XX(g). We consider that this question must be answered in the affirmative.”173 In U.S.—Shrimp, the Appellate Body utilized the interpretation from the U.S.—Gasoline Appellate Body Report,174 and finally held that: 170

Canada—Herring—Salmon, supra note 100, at para. 4.7.

171

See U.S.—Gasoline Panel Report, supra note 33, at para. 6.39.

172

Id. at para. 6.40.

173

U.S.—Gasoline Appellate Body Report, supra note 6, at page 17.

174

See U.S.—Shrimp Appellate Body Report, supra note 120, at para. 136.

166 • The WTO, Animals and PPMs

In its general design and structure, therefore, Section 609 is not a simple, blanket prohibition of the importation of shrimp imposed without regard to the consequences (or lack thereof) of the mode of harvesting employed upon the incidental capture and mortality of sea turtles. Focusing on the design of the measure here at stake, it appears to us that Section 609, cum implementing guidelines, is not disproportionately wide in its scope and reach in relation to the policy objective of protection and conservation of sea turtle species. The means are, in principle, reasonably related to the ends. The means and ends relationship between Section 609 and the legitimate policy of conserving an exhaustible, and, in fact, endangered species, is observably a close and real one, a relationship that is every bit as substantial as that which we found in United States—Gasoline between the EPA baseline establishment rules and the conservation of clean air in the United States.175 The next test in sub-section (g) is the “in conjunction with” test. The test of whether a measure is “in conjunction with” restriction on domestic production or consumption was developed in the U.S.—Canada—Tuna case. The panel made a comparison between the measures applied against Canada and measures it had on domestic production or consumption.176 The measure applied against Canada prohibited import of all kinds of tuna, whereas domestic production, i.e., catch, was not prohibited for, e.g., albacore tuna.177 Furthermore, there was no evidence presented on domestic restrictions of consumption of tuna fish.178 On that basis, the panel held that the U.S. measure to protect tuna fish was not made “in conjunction with” domestic production or consumption.179 The only case concerning an export prohibition, thus far, is the Canada —Herring—Salmon case, where the panel held that “Canada limits purchases of these unprocessed fish only by foreign processors and consumers and not by domestic processors and consumers.”180 In the U.S.—Gasoline case, the Appellate Body held that the “in conjunction with” requirement is not to be understood as requiring identical domestic measures: 175

Id., at para. 141 (footnote omitted).

176

See U.S.—Canada Tuna, supra note 121, at paras. 4.9–4.11.

177

See id. at para. 4.10.

178

See id. at 4.11.

179

See id. at 4.12.

180

See Canada—Herring—Salmon, supra note 100, at para. 4.7.

GATT, SPS and TBT • 167

we believe that the clause ‘if such measures are made effective in conjunction with restrictions on domestic product or consumption’ is appropriately read as a requirement that the measures concerned impose restrictions, not just in respect of imported gasoline but also with respect to domestic gasoline. The clause is a requirement of even-handedness in the imposition of restrictions, in the name of conservation, upon the production or consumption of exhaustible natural resources. There is, of course, no textual basis for requiring identical treatment of domestic and imported products. Indeed, where there is identity of treatment—constituting real, not merely formal, equality of treatment—it is difficult to see how inconsistency with Article III:4 would have arisen in the first place. On the other hand, if no restrictions on domestically-produced like products are imposed at all, and all limitations are placed upon imported products alone, the measure cannot be accepted as primarily or even substantially designed for implementing conservationist goals. The measure would simply be naked discrimination for protecting locally-produced goods.”181 The Appellate Body thereafter held that the U.S. measure survived the test in the U.S.—Gasoline case.182 This test was equally utilized by the Appellate Body in U.S.—Shrimp, where the Appellate Body relied on that the restrictions on shrimp harvesting methods equally applied to shrimp harvested by U.S. shrimp trawl vessels.183 4.3 The Chapeau Analysis The chapeau analysis is identical for all sub-sections in Article XX. The most substantive analysis on the chapeau was offered in the U.S.—Shrimp case, where the U.S.—Shrimp 21.5 case was brought solely on the issue of the chapeau analysis. The first case to seriously consider the chapeau was the U.S.—Gasoline case, where the Appellate Body had found that the tests in sub-section (g) were satisfied and it proceeded with the chapeau analysis. The first case to approve the chapeau analysis was the U.S.—Asbestos case in dicta in March 2001, and thereafter the U.S.—Shrimp 21.5 case in October 2001. The

181

U.S.—Gasoline Appellate Body Report, supra note 6, at 19 (footnote omitted).

182

See id. at 19–20.

183

See U.S.—Shrimp Appellate Body Report, supra note 120, at paras. 143–145.

168 • The WTO, Animals and PPMs

U.S.—Gasoline case and the U.S.—Shrimp case did not include approval of the chapeau test. The chapeau analysis is a final test to ensure that the exceptions are not abused and is a test of the application of the measure.184 Textually, the chapeau consists of three criteria: “arbitrary discrimination”; “unjustifiable discrimination”; and “disguised restriction on international trade.”185 The Appellate Body in the U.S.—Gasoline case did not distinguish among those three criteria in the same manner as the Appellate Body in the later U.S.— Shrimp case did, but opined that: “Arbitrary discrimination,” “unjustifiable discrimination” and “disguised restriction” on international trade may, accordingly, be read side-by-side; they impart meaning to one another. It is clear to us that “disguised restriction” includes disguised discrimination in international trade. It is equally clear that concealed or unannounced restriction or discrimination in international trade does not exhaust the meaning of “disguised restriction.” We consider that “disguised restriction,” whatever else it covers, may properly be read as embracing restrictions amounting to arbitrary or unjustifiable discrimination in international trade taken under the guise of a measure formally within the terms of an exception listed in Article XX. Put in a somewhat different manner, the kinds of considerations pertinent in deciding whether the application of a particular measure amounts to “arbitrary or unjustifiable discrimination,” may also be taken into account in determining the presence of a “disguised restriction” on international trade. The fundamental theme is to be found in the purpose and object of avoiding abuse or illegitimate use of the exceptions to substantive rules available in Article XX.186 In the analysis, the U.S.—Gasoline Appellate Body held that given the fact that the United States had not attempted to create a method by which verification of foreign individual refinery baselines (which were less trade restrictive than the statutory baselines that applied to the foreign refineries) could be established, the measure was unjustifiably discriminatory and a disguised restriction on international trade.187 The Appellate Body, in this

184

See U.S.—Gasoline Appellate Body Report, supra note 6, at 20.

185

See, e.g., id. at 21.

186

Id. at 22–23 (emphasis in original).

187

See id. at 23–27.

GATT, SPS and TBT • 169

instance, relied heavily on the fact that the United States lacked cooperative efforts with foreign governments in order to avoid the discriminatory effect of the trade measure. In the analysis below, the three criteria are divided into two: arbitrary and unjustifiable discrimination and disguised restriction on trade. 4.3.1

Arbitrary and Unjustifiable Discrimination

In U.S.—Shrimp, the Appellate Body divided the analysis into two, whereby, first, it analyzed the issue of discrimination in relation to whether the discrimination was unjustifiable and, second, whether it was arbitrary. The measure in U.S.—Shrimp was found not to survive the chapeau analysis, albeit after the issuance of revised guidelines to comply with the first U.S.— Shrimp ruling, the U.S. measure was found to satisfy the chapeau analysis in the U.S.—Shrimp 21.5 case. Both cases are outlined to illuminate the changes in the U.S. measure. It should, however, be noted that although the DSU 21.5 mechanism usually is understood to be a fast-track review of a new law, the U.S.—Shrimp 21.5 case consisted of a review of new administrative guidelines, because it was only the application of the measure that did not satisfy Article XX in the U.S.—Shrimp case; hence, the United States only changed the application of the law and not the law itself. In EC—Asbestos, the chapeau analysis was not on appeal, and the findings are only those of the panel in the case. The panel, however, found that the chapeau analysis was satisfied, but it should be recalled that the Appellate Body, by finding the measure legal in terms of Article III, reduced the findings to dicta. The Appellate Body in U.S.—Shrimp considered first the issue surrounding that fact that the U.S. measure (of sea turtle-friendly shrimp harvesting methods), in its application, required essentially the same measure to be adopted by foreign governments in order to qualify for U.S. certification.188 The Appellate Body stated that “in practice, the competent government officials only look to see whether there is a regulatory program requiring the use of TEDs or one that comes within one of the extremely limited exceptions available to United States shrimp trawl vessels [footnote omitted].”189 The measure was found to be too “rigid”; i.e., it lacked flexibility to take other efforts to protect sea turtles by governments into consideration:

188

See U.S.—Shrimp Appellate Body Report, supra note 120, at para. 161.

189

Id. at para. 162.

170 • The WTO, Animals and PPMs

Other specific policies and measures that an exporting country may have adopted for the protection and conservation of sea turtles are not taken into account, in practice, by the administrators making the comparability determination . . . it is not acceptable, in international trade relations, for one WTO Member to use an economic embargo to require other Members to adopt essentially the same comprehensive regulatory program, to achieve a certain policy goal, as that in force within that Member’s territory, without taking into consideration different conditions which may occur in the territories of those other Members.190 The “rigid” nature of the application was, moreover, found to be arbitrarily discriminatory.191 The Appellate Body opined that this type of application of the measure was discriminatory, because it did not allow for any evaluation of other efforts being taken to protect the sea turtles in the noncertified countries.192 At the time of the U.S.—Shrimp 21.5 case, the United States had provided some flexibility to the measure, which the Appellate Body described as follows: In our view, there is an important difference between conditioning market access on the adoption of essentially the same programme, and conditioning market access on the adoption of a programme comparable in effectiveness . . . [P]rogrammes comparable in effectiveness . . . gives sufficient latitude to the exporting Member with respect to the programme it may adopt.193 Based on those considerations, the Appellate Body in the U.S.—Shrimp 21.5 case found the revised guidelines to allow for such flexibility were not arbitrarily or unjustifiably discriminatory.194 Another issue noted by the Appellate Body in U.S.—Shrimp was that “shrimp caught using methods identical to those employed in the United States have 190

Id. at paras. 163–164.

191

See id. at para. 177.

192

See id.

United States—Import Prohibition of Certain Shrimp and Shrimp Products, Recourse to Article 21.5 of the DSU by Malaysia, Report of the Appellate Body, WT/DS58/AB/RW, Oct. 22, 2001, at para. 144 [hereinafter U.S.—Shrimp 21.5 Appellate Body Report]. 193

194

See id. See also id. at paras. 146–147.

GATT, SPS and TBT • 171

been excluded from the United States market solely because they have been caught in waters of countries that have not been certified by the United States”195 This aspect had also changed at the time of the U.S.—Shrimp 21.5 proceedings where the revised guidelines allowed for an opportunity to export shrimp from a non-certified country if the shrimp had been caught with TEDs.196 The Appellate Body also opined on the lack of “good faith effort” negotiations with other countries to protect the sea turtles.197 Section 609 of Public Law 101-162198 directs the Secretary of State to conduct such negotiations, but negotiations had only taken place with certain countries (where one agreement had been reached).199 Apart from the requirement to negotiate as laid down by Congress, the Appellate Body also noted that conservation of “highly migratory” species required cooperative efforts.200 In sum, the Appellate Body found these factors to amount to unjustifiable discrimination: “Clearly, the United States negotiated seriously with some, but not with other Members (including the appellees), that export shrimp to the United States. The effect is plainly discriminatory and, in our view, unjustifiable.”201 From this holding of the Appellate Body, it was understood that if the United States engaged in “good faith” effort negotiations, the measure could be accepted under the chapeau analysis,202 which also turned out to be true in the U.S.—Shrimp 21.5 Appellate Body Report, where the Appellate Body approved the U.S. measure and held that: Requiring that a multilateral agreement be concluded by the United States in order to avoid “arbitrary or unjustifiable discrimination” in applying its measure would that any country party 195

See U.S.—Shrimp Appellate Body Report, supra note 120, at para.165.

See United States—Import Prohibition of Certain Shrimp and Shrimp Products, Recourse to Article 21.5 by Malaysia, Report of the Panel, WT/DS57/RW, June 15, 2001, para. 5.107 [hereinafter U.S.—Shrimp 21.5 Panel Report]. 196

See also Laura Yavitz (Nielsen), The WTO and the Environment: The Shrimp Case that Created a New World Order, 16 J. NAT. RESOURCES & ENVTL. L. 203, 227–34 (2001–02) [hereinafter Yavitz (Nielsen), Shrimp], which explores the “good faith” requirement in detail. 197

198

16 U.S.C. § 1537.

See U.S.—Shrimp Appellate Body Report, supra note 120, at para. 167, the agreement was called the “Inter American Agreement” and did hence not include the complainants in this case. 199

200

See id. at para. 168.

201

See id. at para. 172.

202

See Yavitz (Nielsen), Shrimp, supra note 197, at 227.

172 • The WTO, Animals and PPMs

to the negotiations with the United States, whether a WTO Member or not, would, in effect, a veto over whether the United States could fulfill its WTO obligations. Such a requirement would not be reasonable.203 The Appellate Body in U.S.—Shrimp 21.5, moreover, held that negotiations need not be identical but merely comparable.204 The United States had, after the U.S.—Shrimp Appellate Body Report, engaged in the ongoing negotiations to protect sea turtles in the Indian Ocean and South-East Asia region, but agreements were yet reached.205 This effort was found to satisfy the “good faith” effort to negotiate an agreement.206 The criteria “ongoing, serious, good faith effort” may, however, be difficult to evaluate by future panels; not to mention the members themselves—this was particularly noted by the Canadian representative at the adoption of the U.S.—Shrimp 21.5 Appellate Body Report.207 It was, moreover, found to be discriminatory that certain countries were offered “phase-in” periods, whereas the complainants to the U.S.— Shrimp case were not.208 The revised guidelines in the U.S.—Shrimp 21.5 proceedings were found to satisfy the requirements for being nondiscriminatory.209 The Appellate Body in U.S.—Shrimp also found that certain due process criteria were not satisfied, such as transparency and predictability in the certification process.210 The Appellate Body found—in accordance with the principles laid down in GATT Article X—that these due process deficiencies amounted to unjustifiable and arbitrary discrimination.211 This aspect of the application of the measure had been changed by the time of the U.S.—Shrimp 21.5 proceeding.212 The changes were found to satisfy the criteria in the chapeau analysis.213 203

See U.S.—Shrimp 21.5 Appellate Body Report, supra note 193, at para. 123.

204

See id. at para. 122.

205

See id. at para. 131.

206

See id. at para. 132

207

See WT/DSB/M113, para 7.

208

See U.S.—Shrimp Appellate Body Report, supra note 120, at paras. 173–175.

209

See U.S.—Shrimp 21.5 Panel Report, supra note 196, at paras. 5.112–5.116.

210

See U.S.—Shrimp Appellate Body Report, supra note 120, at paras. 178–184.

211

See id. at para. 184.

212

See U.S.—Shrimp 21.5 Panel Report, supra note 196, at paras. 2.21.

213

See id. at paras. 5.126–5.136.

GATT, SPS and TBT • 173

In EC—Asbestos, the panel found that the internal measure to ban asbestos by Canada had not proven that it had any components of discrimination and satisfied this aspect of the chapeau analysis.214 4.3.2

Disguised Restriction on Trade

The U.S.—Shrimp case did not analyze the criterion of “disguised restriction of trade.”215 However, at the time of the U.S.—Shrimp 21.5 case, the panel found it to be a necessary analysis for it to make.216 The panel held: We therefore proceed to determine whether, beyond the protection which automatically results from the imposition of a ban, the design, architecture and revealing structure of Section 609 together with the Revised Guidelines, as actually applied by the US authorities, demonstrate that the implementing measure constitutes a disguised restriction on international trade. An examination of the text of Section 609 and of the Revised Guidelines does not show any element leaning in that direction.217 This particular holding by the panel was, however, not on appeal and is not opined upon by the Appellate Body.218 In EC—Asbestos, the primary issue concerning the criterion of disguised restriction on trade was whether the law was published.219 This type of analysis was also seen in the U.S.—Canada—Tuna case, where the panel opined that the U.S. measure was not a “disguised restriction on international trade,” because the measure had been published.220 The panel in EC—Asbestos, moreover analyzed the meaning of the word “disguised” and found it to mean “conceal[ed] beneath deceptive appearances, counterfeit, alter[ed] so as to deceive, misrepresent and dissimulate.”221 The panel then recalled that the Appellate Body in U.S.—Gasoline has read all three 214 See EC—Asbestos Panel Report, supra note 27, at paras. 8.229–8.230. See also Yavitz (Nielsen), Asbestos, supra note 74, at 55. 215 See U.S.—Shrimp Appellate Body Report, supra note 120, at para. 184. This book does not outline the analysis by the original panel because, most of its holdings were overturned by the Appellate Body. See also U.S.—Shrimp 21.5 Panel Report, supra note 196, at para. 5.143. 216

See U.S.—Shrimp 21.5 Panel Report, supra note 196, at para. 5.138.

217

Id. at para. 5.142.

218

See U.S.—Shrimp 21.5 Appellate Body Report, supra note 193, at para. 118.

219

See EC—Asbestos Panel Report, supra note 27, at para. 8.234.

220

See U.S.—Canada Tuna, supra note 121, at para. 4.8.

221

See EC—Asbestos Panel Report, supra note 27, at para. 8.236.

174 • The WTO, Animals and PPMs

criteria together and found that discriminatory aspects affected the judgment of the criteria disguised restriction on trade.222 Given the fact that the measure was not found to be discriminatory, it was easier for the panel to establish that the measure was not a disguised restriction on trade.223 The panel then concluded that the measure survived the chapeau analysis.224 4.4 Overview: A Direct “Link” Between Measure and Policy Pursued In essence, it can be argued that the “primarily aimed at” and “necessity” test in sub-sections (b) and (g)—and most likely equally in the “necessity” test in sub-section (a)—are tests that ensure that the policy pursued has a direct link with the specific items that are subject for the trade restriction. Moreover, certain tests in the chapeau may equally be utilized for this purpose. How close proximity is required between the policy and the product is, thus, evidenced in those tests. Comparing Article XX measures with Article XXI measures illuminates this difference clearly; under Article XXI(b), “any action” can be justified, which essentially means that the policy and the trade restriction do not need that “link.” An example of the difference is that if Denmark, e.g., had opted for adopting the proposal put forth for a trade ban on Burmese teak tree on the grounds of Burma’s violation of some human rights norms.225 This measure could, in the event of the hypothetical WTO dispute, be attempted to be justified under Article XX(a) or Article XXI. Under Article XX(a), the “necessity” test would probably not have been satisfied, because it seems far-fledged that the ban on teak trees is “necessary” to protect public morals in Denmark (assuming that Danes find it in opposition to their public morals that Burma supposedly violated certain human rights norms), when other products still entered the country—and in the alternative, it seems “unjustifiable and arbitrary” under the chapeau analysis to single out one product. Under Article XXI, however, the measure could not be “second guessed” in this manner, because this exception allows for “any measure” if a country claims it is for “national security” purposes, meaning that Denmark could pick and choose between imports from Burma or ban trade in its totality. The example is, however, imperfect, because Denmark would have difficulties claiming national security is at stake due to Burma’s lack of adherence to human rights norms.

222

See id. at para. 8.237.

223

See id.

224

See id. at 8.240.

225

See Danish Proposal (B 183), Apr. 16, 2004, not adopted.

GATT, SPS and TBT • 175

4.4.1

The Flawed GSP “Policy” Analysis

The issue of direct link between the policy goal of the measure and the specifics of the trade measure came up in the EC—GSP case, where the panel chose to analyze this issue under a “policy” test. This author contends that the test conducted as the “policy” test by the panel in this case should have been conducted as the “necessity” test instead. Recall that the “necessity” test is the test, analyzes whether the measure is necessary to achieve the policy goal. The panel in the EC—GSP case used the “policy” test of “whether the Drug Arrangements are designed to achieve the stated health objectives.”226 Textually, this phrase resembles the “necessity” test quite a bit. Moreover, when reading the analysis by the panel leading up to the conclusion to dismiss the measure under the “policy” test, it, inter alia, stated: Even assuming that market access is an important component of the international strategy to combat the drug problem, there was no evidence presented before the Panel to suggest that providing improved market access is aimed at protecting human life or health in drug importing countries. Rather, all the relevant international conventions and resolutions suggest that alternative development, including improved market access, is aimed at helping the countries seriously affected by drug production and trafficking to move to sustainable development alternatives.227 The panel analyzed whether improving market access for developing countries into the EC market is aimed at protecting human life or health in drug-importing countries. This test resembles the trade test under sub-section (g) on the issue of being “primarily aimed at,” but it could equally be an analysis under the “necessity” test. The panel in the EC—GSP case, moreover, developed a new manner to evaluate the “policy” test, when it posed the question of “[w]hether the Drug Arrangements [i.e., the illegal trade measure in issue] constitute a measure under Article XX(b)”228 The analysis was as follows:

226

EC—GSP Panel Report, supra note 123, at para. 7.200.

227

Id. at para. 7.207 (emphasis added).

228

Id. at para. 7.199.

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In examining whether the Drug Arrangements are designed to achieve the stated health objectives, the Panel needs to consider not only the express provisions of the EC Regulations, but also the design, architecture and structure of the measure, as set out by the Appellate Body’s reasoning in Japan—Alcoholic Beverages II. There, the Appellate Body stated that “the aim of a measure may not be easily ascertained, nevertheless, its protective application can most often be discerned from the design, the architecture and the revealing structure of a measure.” The same analytical approach was followed by the Appellate Body under Article XX in US— Shrimp.229 The reference to the U.S.—Shrimp case turns out to be a reference to a totally different test in GATT Article XX, the “related to” test under subsection (g).230 Moreover, the reference to Japan—Alcohol is a reference to an analysis of GATT Article III.231 For those reasons stated above, it is, thus, unlikely that this approach to the “policy” test, where the “aim” of a measure is found from the “structure,” is correct. The issue was, however, not appealed, and the Appellate Body has thus not had an option to opine upon the issue.232 This aspect is important, because the “policy” test, as is known thus far in other cases, seems to question whether the policy fell within the scope of the policies enumerated in the sub-sections. This is, e.g., stated eloquent in the EC—Asbestos case, where the Appellate Body stated: “On the issue of whether the use of chrysotile-cement products poses a risk to human health sufficient to enable the measure to fall within the scope of application of the phrase ‘to protect human . . . life or health’ in Article XX(b).”233 The Appellate Body analyzed whether asbestos was dangerous, not whether the measure aimed at protecting human life or health. If the panel in the EC—GSP case had followed this approach, then the test would have been whether drugs were dangerous to human life or health. This test would probably not be hard to meet. The measure would, however, most like not have survived the “necessity” test.

229

Id. at para. 7.200 (footnotes omitted).

230

See U.S.—Shrimp Appellate Body Report, supra note 120, at para. 137.

231

See Japan—Alcohol Appellate Body Report, supra note 62, at 32.

232

See EC—GSP Appellate Body Report, supra note 123, at para. 78.

233

EC—Asbestos Appellate Body Report, supra note 30, at para. 157.

GATT, SPS and TBT • 177

5

SUBSTANTIVE OBLIGATIONS IN THE SPS AGREEMENT

The following is a brief introduction into the substantive obligations under the SPS Agreement. 5.1 General Requirements to SPS Measures The SPS Agreement essentially repeats the language of GATT Article XX(b) in its Article 2, which reads as follows: 1. Members have the right to take sanitary and phytosanitary measures necessary for the protection of human, animal or plant life or health, provided that such measures are not inconsistent with the provisions of this Agreement. 2. Members shall ensure that any sanitary or phytosanitary measure is applied only to the extent necessary to protect human, animal or plant life or health, is based on scientific principles and is not maintained without sufficient scientific evidence, except as provided for in paragraph 7 of Article 5. 3. Members shall ensure that their sanitary and phytosanitary measures do not arbitrarily or unjustifiably discriminate between Members where identical or similar conditions prevail, including between their own territory and that of other Members. Sanitary and phytosanitary measures shall not be applied in a manner which would constitute a disguised restriction on international trade. 4. Sanitary or phytosanitary measures which conform to the relevant provisions of this Agreement shall be presumed to be in accordance with the obligations of the Members under the provisions of GATT 1994 which relate to the use of sanitary or phytosanitary measures, in particular the provisions of Article XX(b). It is questionable why clause 4 of Article 2 is necessary, since the SPS Agreement functions as lex specialis to the GATT. It however clarifies what will happen if a measure, justified under the SPS Agreement, nevertheless is adjudicated under the GATT. The most important part of Article 2 is, however, the reference to SPS measures, which must be put in place with reference to sufficient scientific evidence. This was one of the main issues in the EC-Hormones case, where the EC essentially enacted SPS measures without scientific evidence to support the measures.234 In Japan—Agricultural Products II, the Appellate Body 234 See generally EC—Hormones Appellate Body Report, supra note 48, paras. 208–209 (footnotes omitted).

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explained how this requirement relates to both Articles 3 and 5 of the Agreement: The Panel found that Japan’s varietal testing requirement as it applies to apples, cherries, nectarines and walnuts is maintained without sufficient scientific evidence and is, therefore, inconsistent with Article 2.2 of the SPS Agreement. Japan appeals this finding. According to Japan, the Panel erred in law in finding that the varietal testing requirement was “maintained without sufficient scientific evidence” within the meaning of Article 2.2. Japan’s appeal raises the issue of the meaning of the phrase “maintained without sufficient scientific evidence” in Article 2.2 and, in particular, the meaning of the word “sufficient.” The ordinary meaning of “sufficient” is “of a quantity, extent, or scope adequate to a certain purpose or object.” From this, we can conclude that “sufficiency” is a relational concept. “Sufficiency” requires the existence of a sufficient or adequate relationship between two elements, in casu, between the SPS measure and the scientific evidence. 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.235 The requirements laid down in Articles 3 and 5 are illuminated below. 5.2 Three Types of Measures in Article 3 As illuminated earlier, there are essentially three types of measures in a SPS analysis. The first measure is the type described in SPS Agreement Article 3.2, which conforms to international standards. This type of measure is deemed to be necessary to protect human, animal or plant life or health. The second type is the type described in SPS Agreement Article 3.1, which is based on international standards. This type of measure does not benefit from any rules or presumptions of consistency.

235 Japan—Measures Affecting Agricultural Products, Report of the Appellate Body, Feb. 22, 1999, WT/DS76/AB/R, paras. 72–74.

GATT, SPS and TBT • 179

Finally, the third type of measure is described in SPS Agreement Article 3.3, which essentially describes two different situations: (1) when a measure has a higher level of protection than laid down in international standards, this higher level needs to be scientifically justified; and (2) if no international standard exists, a SPS measure needs equally to be scientifically justified. In order to provide scientific justification, members must follow the principles laid down in SPS Article 5. 5.3 Risk Assesment in Article 5 The requirements in SPS Article 5 regarding scientific testing concerns the standard of proof submitted as scientific evidence. The general rule is that a full risk assessment must be presented, with the only exception being if it is a provisional application for precautionary measures as laid down in SPS Article 5.7. Regarding the precautionary principle as laid down in SPS Article 5.7, it should be reiterated that in order to utilize this clause, there has to be insufficient scientific evidence, but there has to be some kind of qualified risk present. The phrase “on the basis of available pertinent information” clarifies that the risk present cannot merely be a hypothetical risk. Moreover, an Article 5.7 measure is temporary. This understanding of SPS Article 5.7 was also explained—perhaps more clearly—by the panel in EC—GMO: a Member may provisionally adopt an SPS measure on the basis of available pertinent information in situations where the scientific evidence is insufficient for an adequate risk assessment, as required by Article 5.1 and as defined in Annex A(4), it makes sense to require, as the second sentence of Article 5.7 does, that that Member seek to obtain “the additional information necessary” for such a risk assessment. Once a Member has obtained the additional information necessary for a risk assessment which meets the definition of Annex A(4), it will be in a position to comply with its obligation in Article 5.1 to base its SPS measure on a risk assessment which satisfies the definition of Annex A(4)236 A risk assessment is described in Article 5.2 as: In the assessment of risks, Members shall take into account available scientific evidence; relevant processes and production methods; relevant inspection, sampling and testing methods; prevalence of specific diseases or pests; existence of pest- or disease-free areas; 236

EC—GMO Panel Report, supra note 8, at para. 7.2990.

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relevant ecological and environmental conditions; and quarantine or other treatment. The Appellate Body has interpreted this with a view to “real life” situations: Some of the kinds of factors listed in Article 5.2 such as “relevant processes and production methods” and “relevant inspection, sampling and testing methods” are not necessarily or wholly susceptible of investigation according to laboratory methods of, for example, biochemistry or pharmacology. Furthermore, there is nothing to indicate that the listing of factors that may be taken into account in a risk assessment of Article 5.2 was intended to be a closed list. It is essential to bear in mind that the risk that is to be evaluated in a risk assessment under Article 5.1 is not only risk ascertainable in a science laboratory operating under strictly controlled conditions, but also risk in human societies as they actually exist, in other words, the actual potential for adverse effects on human health in the real world where people live and work and die.237 It should, however, be underscored that members are free to set their own level of protection. The most reasonable explanation of this right and the requirement of a risk assessment under Article 5.1 is found in Australia —Salmon: As stated in our Report in European Communities—Hormones, the “risk” evaluated in a risk assessment must be an ascertainable risk; theoretical uncertainty is “not the kind of risk which, under Article 5.1, is to be assessed.”238 This does not mean, however, that a Member cannot determine its own appropriate level of protection to be “zero risk.”239 The issue of “level” of protection is however also regulated in Article 5.5, which reads as follows: With the objective of achieving consistency in the application of the concept of appropriate level of sanitary or phytosanitary protection against risks to human life or health, or to animal and 237

EC—Hormones Appellate Body Report, supra note 48, para. 187.

238

Adopted Feb. 13, 1998, WT/DS26/AB/R, WT/DS48/AB/R, para. 186.

Australia—Measures Affecting Importation of Salmon, Report of the Appellate Body, Oct. 20, 1998, WT/DS18/AB/R, para. 125. 239

GATT, SPS and TBT • 181

plant life or health, each Member shall avoid arbitrary or unjustifiable distinctions in the levels it considers to be appropriate in different situations, if such distinctions result in discrimination or a disguised restriction on international trade [emphasis added]. The clause may seem a bit redundant when keeping in mind that Article 2.3 contains nearly the same language: Members shall ensure that their sanitary and phytosanitary measures do not arbitrarily or unjustifiably discriminate between Members where identical or similar conditions prevail, including between their own territory and that of other Members. Sanitary and phytosanitary measures shall not be applied in a manner which would constitute a disguised restriction on international trade. The Appellate Body in EC—Hormones noted the similarity of the text and posited: “When read together with Article 2.3, Article 5.5 may be seen to be marking out and elaborating a particular route leading to the same destination set out in Article 2.3.”240 The Appellate Body went on to explain that the clauses did not require a strict consistency of levels, as long as they were not arbitrary or unjustifiable: a legal obligation of consistency of appropriate levels of protection. We think, too, that the goal set is not absolute or perfect consistency, since governments establish their appropriate levels of protection frequently on an ad hoc basis and over time, as different risks present themselves at different times. It is only arbitrary or unjustifiable inconsistencies that are to be avoided.241 Members of the WTO are therefore largely self-regulating when determining the level of protection they seek—within certain limits of course. It should finally be noted that the panel in EC—GMO did not find the EC moratorium on GMO products to be a SPS measure; rather it analyzed the approval procedures of the legislation and found those to be inconsistent with SPS Agreement Article 8, so that report avoids the curious questions arising from evaluation of GMO products.242

240

EC—Hormones Appellate Body Report, supra note 48, para. 212.

241

Id. at para. 213 (emphasis in original).

242

See generally EC—GMO Panel Report, supra note 8, at conclusions para. 8.6.

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The Panel determined that the moratorium was not itself an SPS measure within the meaning of the SPS Agreement, but rather affected the operation and application of the EC approval procedures, which are set out in the relevant EC approval legislation and which we had found to be SPS measures. With respect to Directives 90/220 and 2001/18, the Panel has concluded that the general de facto moratorium resulted in a failure to complete individual approval procedures without undue delay, and hence gave rise to an inconsistency with Article 8 and Annex C of the SPS Agreement. With respect to Regulation 258/97, the Panel found that, to the extent the approval procedure addressed safety aspects within the scope of the SPS Agreement, the general de facto moratorium resulted in a failure to complete individual approval procedures without undue delay, and hence also gave rise to an inconsistency with Article 8 and Annex C of the SPS Agreement. It remains to be seen whether the Appellate Body agrees—or, in the alternative, whether a new case will shed light in the issues in the future. 5.4 Developing Countries and the SPS Requirements It is a legal misunderstanding if it is argued that developing countries are under a legal obligation to meet the standards in the SPS Agreement, because clearly developing countries are not under any obligation to export to countries having SPS standards. It is, however, not far from reality for developing countries, because they often export to developed countries with SPS measures and need to live up to these requirements. Clearly this can involve everything from local testing facilities, education of staff, to a total change of production method. The difficulties arising from meeting the standards lead to phrases, such as “the SPS walls” of the developed countries, and oftentimes developed countries can only reply by urging developing countries to engage in more South-South trade. In this context, it is important to understand that unlike other trade barriers, SPS measures relate to very sensitive values, and governments, due to this nature, cannot give special and differential treatment to developing countries by lowering SPS standards; it is unlikely that any government would survive a headline on a newspaper stating “3 babies died of food poisoning due to lowering of food security standards to assist developing countries.” But this fact does not mean that all SPS measures enacted and maintained by developed countries are “fair” and that standards on which SPS measures based are “fair.” This means that developing countries need to focus on the standardsetting itself in the relevant bodies outside the WTO, as well developing means to meet the SPS standards imposed on the exports vital to them. Moreover, as countries develop, it is a fair assumption that they will require

GATT, SPS and TBT • 183

higher and higher SPS standards for the protection of their citizens, and, when doing so, the Appellate Body has clarified that they can rely on risk assessments carried out by other countries or organizations, so they do not need to also establish means to carry out all the relevant risk assessments.243 It should be noted that the WTO facilitates assistance to developing countries by offering technical assistance, as well as by being a partner in Standardsfacility.org, whereto Denmark, e.g., most recently donated 1.5 million CHF in October 2006. 6

SUBSTANTIVE OBLIGATIONS IN THE TBT AGREEMENT

The following is a brief outline of the most important obligations under the TBT Agreement. 6.1 General Obligations The TBT Agreement resembles the SPS Agreement in many ways, but it differs naturally because it covers a different range of trade barriers. The TBT Agreement has only been subject to adjudication once, which was in the EC—Sardines case, which primarily concerned TBT Article 2.4. In that case, the EC had a regulation regarding the name under which different variations of sardines could be sold.244 The regulation laid down that only Sardina pilchardus Walbaum (hereinafter Sardina pilchardus) could be marketed in the EC.245 Sardina pilchardus is “found mainly around the coasts of the Eastern North Atlantic Ocean, in the Mediterranean Sea, and in the Black Sea.”246 Another sardine type, the Sardinops sagax sagax (hereinafter Sardinops sagax), which is a larger fish, is “found mainly in the Eastern Pacific Ocean, along the coasts of Peru and Chile.”247 This type of sardines could therefore not be marketed in the EC. 6.1.1

International Standards

The TBT Agreement resembles the SPS Agreement in the sense that it also refers to international standards set by bodies outside the WTO. The standards referred to in the TBT Agreement are, however, not the same as in the SPS Agreement because of the different scope of the agreements.

243

EC—Hormones Appellate Body Report, supra note 48, para. 190.

244

See e.g., EC—Sardines Appellate Body Report, supra note 57, paras. 2–3.

245

See id. at para. 3.

246

See id. at para. 4.

247

See id. at para. 7.

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The international standards in the TBT Agreement are, e.g., ISO or Codex standards. In a world where more and more standards exists, as well as governments developing more and more complex schemes for imports, it is vital to have an agreement that attempts to distinguish between the altruistic and protectionist trade barriers. This is also illuminated in the Preamble of the TBT Agreement: Desiring however to ensure that technical regulations and standards, including packaging, marking and labelling requirements, and procedures for assessment of conformity with technical regulations and standards do not create unnecessary obstacles to international trade. The TBT Agreement also urge members to utilize international standards, where such exist, and specifies that deviation from them must be based on a valid reason (TBT Article 2.4): Where technical regulations are required and relevant international standards exist or their completion is imminent, Members shall use them, or the relevant parts of them, as a basis for their technical regulations except when such international standards or relevant parts would be an ineffective or inappropriate means for the fulfilment of the legitimate objectives pursued, for instance because of fundamental climatic or geographical factors or fundamental technological problems. Standards are defined in Annex 1.2 as being: Standard Document approved by a recognized body, that provides, for common and repeated use, rules, guidelines or characteristics for products or related processes and production methods, with which compliance is not mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process or production method. Explanatory note The terms as defined in ISO/IEC Guide 2 cover products, processes and services. This Agreement deals only with technical regulations, standards and conformity assessment procedures related to products or processes and production methods. Standards as

GATT, SPS and TBT • 185

defined by ISO/IEC Guide 2 may be mandatory or voluntary. For the purpose of this Agreement standards are defined as voluntary and technical regulations as mandatory documents. Standards prepared by the international standardization community are based on consensus. This Agreement covers also documents that are not based on consensus. In EC—Sardines, Peru asserted that Codex Stan 94 was a relevant international standard for the EC regulation. The utilization of the Codex Stan 94 naming rules would, in effect, mean that the EC should allow other than its domestic sardine type to be marketed as sardines—as either Peruvian sardines or with its common name.248 The Appellate Body held that Codex Stan 94 was a relevant international standard.249 In its reasoning, it, inter alia, described that consensus in adoption of the international standard was not a requirement: Therefore, we uphold the Panel’s conclusion . . . that the definition of a “standard” in Annex 1.2 to the TBT Agreement does not require approval by consensus for standards adopted by a “recognized body” of the international standardization community. We emphasize, however, that this conclusion is relevant only for purposes of the TBT Agreement. It is not intended to affect, in any way, the internal requirements that international standard-setting bodies may establish for themselves for the adoption of standards within their respective operations. In other words, the fact that we find that the TBT Agreement does not require approval by consensus for standards adopted by the international standardization community should not be interpreted to mean that we believe an international standardization body should not require consensus for the adoption of its standards. That is not for us to decide.250 The Appellate Body, moreover, held that Codex Stan 94 was a relevant international standard despite having a different coverage area than the EC regulation: Codex Stan 94 can be said to bear upon, relate to, or be pertinent to the EC Regulation because both refer to preserved Sardina pilchardus.

248

See id. at paras. 235–236.

249

See id. at para. 233.

250

Id. at para. 227.

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Second, we have already concluded that, although the EC Regulation expressly mentions only Sardina pilchardus, it has legal consequences for other fish species that could be sold as preserved sardines, including preserved Sardinops sagax. Codex Stan 94 covers 20 fish species in addition to Sardina pilchardus. These other species also are legally affected by the exclusion in the EC Regulation. Therefore, we conclude that Codex Stan 94 bears upon, relates to, or is pertinent to the EC Regulation.251 6.1.2

Deviation from International Standards

As laid down in TBT Article 2.4, members are allowed to have their technical regulations deviate from international standards, if there is a legitimate objective. Legitimate objectives are listed in Article 2.2: Such legitimate objectives are, inter alia: national security requirements; the prevention of deceptive practices; protection of human health or safety, animal or plant life or health, or the environment. In assessing such risks, relevant elements of consideration are, inter alia: available scientific and technical information, related processing technology or intended end-uses of products. The Appellate Body describes the relationship between TBT Article 2.4 and 2.2 as: “[T]he ‘legitimate objectives’ referred to in Article 2.4 must be interpreted in the context of Article 2.2,” which refers also to “legitimate objectives,” and includes a description of what the nature of some such objectives can be. Two implications flow from the Panel’s interpretation. First, the term “legitimate objectives” in Article 2.4 . . . must cover the objectives explicitly mentioned in Article 2.2 . . . Second, given the use of the term “inter alia” in Article 2.2, the objectives covered by the term “legitimate objectives” in Article 2.4 extend beyond the list of the objectives specifically mentioned in Article 2.2. Furthermore, we share the view of the Panel that the second part of Article 2.4 implies that there must be an examination and a determination on the legitimacy of the objectives of the measure.252 In EC—Sardines, the Appellate Body analyzed “[w]hether Codex Stan 94 is an Effective and Appropriate Means to Fulfil the ‘Legitimate Objectives’ 251

Id. at paras. 231–232 (footnotes omitted).

252

Id. at para. 286 (footnotes omitted).

GATT, SPS and TBT • 187

Pursued by the European Communities Through the EC Regulation”253 The legitimate objectives in issue consisted of protection of consumers, ensuring market transparency and fair competition.254 The Appellate Body held that: We note that the Panel concluded that “Peru has adduced sufficient evidence and legal arguments to demonstrate that Codex Stan 94 is not ineffective or inappropriate to fulfil the legitimate objectives pursued by the EC Regulation.” We have examined the analysis which led the Panel to this conclusion. We note, in particular, that the Panel made the factual finding that “it has not been established that consumers in most member States of the European Communities have always associated the common name ‘sardines’ exclusively with Sardina pilchardus.” We also note that the Panel gave consideration to the contentions of Peru that, under Codex Stan 94, fish from the species Sardinops sagax bear a denomination that is distinct from that of Sardina pilchardus, and that “the very purpose of the labelling regulations set out in Codex Stan 94 for sardines of species other than Sardina pilchardus is to ensure market transparency.” We agree with the analysis made by the Panel. Accordingly, we see no reason to interfere with the Panel’s finding that Peru has adduced sufficient evidence and legal arguments to demonstrate that Codex Stan 94 meets the legal requirements of effectiveness and appropriateness set out in Article 2.4 of the TBT Agreement.255 6.1.3

GATT Article III Resemblance

The TBT and SPS Agreements therefore have many basic similarities, but they also have major differences, due to the different areas they cover. Finally, it should be noted that the TBT Agreement also resembles GATT Article III, and it repeats a type of national treatment test in Article 2.1: Members shall ensure that in respect of technical regulations, products imported from the territory of any Member shall be accorded treatment no less favourable than that accorded to like products of national origin and to like products originating in any other country.

253

Id. at para. 283.

254

See id. at para. 287.

255

Id. at para. 290.

CHAPTER 8

THE POLICY AREA OF GATT ARTICLE XX

1

INTRODUCTION

The “overlap” between the sub-sections of Article XX is not in conformity with the principle of effectiveness in treaty interpretation. This chapter concerns the importance of the “policy” test and the consequences of neglecting it—as well as some suggestions as to overcoming the problem. The chapter consists of a series of questions. The questions are, inter alia, why is the “policy” test important? Why does it matter if the sub-sections overlap? Why are moral policies different than other policies? The questions, by and large, build on each other as building bricks, and they form the basis of the structure of the analyses—therefore, specific issues concerning, e.g., treaty interpretation are not introduced in the beginning of the chapter as a separate issues, but they are included where they relate specifically to answering the posed question. 2

WHY IS THE “POLICY” TEST IMPORTANT?

Initially, it must be noted that under the heading “policy” analysis/test only one type of analysis has been utilized thus far, namely the test by which the panels or the Appellate Body determines whether the policy pursued falls within the scope of the sub-section in issue. Other types of analyses under the heading “policy” test could be whether the policy itself was indeed desirable. This section, however, only addresses the issue of the “policy” test in relation to being the test that determines whether a particular policy in a trade measure falls within the policy scope of a sub-section. 2.1 The “Policy” Test Defines the Scope of Article XX If the entire box below is considered to be trade measures in violation of the substantive obligations under the GATT, the three circles carve out the policy areas of the scope of sub-sections (a), (b) and (g). These policy areas thus serve the important task of defining which trade measures—determined from their policies—may not be illegal after 189

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all, if they meet the remaining part of the trade tests in Article XX, including the chapeau analysis. The remaining part of the trade tests and the chapeau analysis is also referred to as the subsequent trade tests. Measures in Violation of the Substantive Obligations Under the GATT

Policies for sub-section (a)

Policies for sub-section (b)

Policies for sub-section (g)

When compared to the following box, where the scope of the sub-sections has been decreased, the importance of the “policy” test becomes evident. Measures in Violation of the Substantive Obligations Under the GATT

Subsection (a)

Subsection (b)

Subsection (g)

2.2 The “Policy” Test Determines the Subsequent Trade Tests As illuminated in Chapter 7, the tests in the different sub-sections are not identical. The difference consists of the “necessity” test in sub-sections (a) and (b), whereas the counter-part tests in sub-section (g) are called “related to” and “in conjunction with.” It is thus apparent that the subsequent trade tests in the sub-sections vary depending on which policy area, i.e., sub-section, the measure initially falls within. The “policy” test is therefore also important because the “policy” test is in this manner the test that decides what sub-section is to be analyzed and thus which trade tests will subsequently be analyzed.

Policy Area of GATT Article XX • 191

2.2.1

Sub-Section (g) Is Easier to Satisfy than Sub-Sections (a) and (b)

Before the advent of the successful invocation of sub-section (b) in the EC—Asbestos case, the fact that sub-section (g) was already satisfied in two cases1 resulted in the curious situation that it appeared “easier” to protect natural resources than human health “unless mankind is itself an exhaustible natural resource” as posited by one scholar.2 For purposes of this analysis, it is assumed that the “necessity” test in sub-section (a) should be interpreted in the same manner as the “necessity” test in sub-sections (b) and (d). This assumption is based on the fact that the “necessity” test in sub-sections (b) and (d) in case law is understood to be interpreted in the same manner.3 This was also confirmed by the Appellate Body in U.S.—Gambling, where the necessity test in the public morals exception in the GATS Agreement was interpreted as being the same test as in GATT Article XX(b) and (d).4 The difference among the trade tests in the sub-sections was initially noted in the Canada—Herring—Salmon case from 1988, where the panel noted: that some of the subparagraphs of Article XX state that the measure must be “necessary” or “essential” to the achievement of the policy purpose set out in the provision (cf. subparagraphs (a), (b), (d) and (j)) while subparagraph (g) refers only to measures “relating to” the conservation of exhaustible natural resources. This suggests that Article XX(g) does not only cover measures that are necessary or essential for the conservation of exhaustible natural resources but a wider range of measures.5

1 Sub-section (g) was satisfied in both U.S.—Gasoline and U.S.—Shrimp (Shrimp is from Oct. 12, 1998) before sub-section (b) was satisfied in the EC—Asbestos case (Asbestos is from Mar. 12, 2001). 2 See Arthur E. Appleton, Shrimp/Turtle: Untangling the Nets, 2. J. INT’L ECON. L., 483 (1999). 3 See Thailand—Restrictions on Importation of and Internal Taxes on Cigarettes, adopted on Nov. 7, 1990, SD10/R-37S/200 (Oct. 5, 1990), para. 74 [hereinafter Thailand—Cigarettes]. 4 See United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, Report of the Appellate Body, WT/DS285/AB/R, Apr. 7, 2005, paras. 291, 305 [hereinafter U.S.—Gambling Appellate Body Report]. 5 Canada—Measures Affecting Exports of Unprocessed Herring and Salmon, adopted Mar. 22, 1988, BISD 35S/98, para 4.6 [hereafter Canada—Herring—Salmon].

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The language of the passage regarding “covering measures” could give the impression that the panel was discussing the “policy” test, because this test essentially relates to the coverage of a sub-section. The message from the Canada—Herring—Salmon panel most likely meant that the “related to” test was a less rigid test than the “necessity” test. The poor choice of words probably stems from the fact that, at the time of the case, each test under each sub-section was not as clearly defined as they appear today—hence, the reference to “cover” more measures, rather than stating that the test was easier to survive than the “necessity” test. A more recent statement from the Appellate Body on the issue, however, clarifies that the Appellate Body views the “necessity” test to be a more rigid test than the “related to” test. The Appellate Body clarified this in the Korea—Beef case, albeit in a footnote: We recall that we have twice interpreted Article XX(g), which requires a measure “relating to the conservation of exhaustible natural resources.” This requirement is more flexible textually than the “necessity” requirement found in Article XX(d). We note that, under the more flexible “relating to” standard of Article XX(g), we accepted in United States—US—Gasoline a measure because it presented a “substantial relationship,” i.e., a close and genuine relationship of ends and means, with the conservation of clean air . . . In United States—US—Shrimp we accepted a measure because it was “reasonably related” to the protection and conservation of sea turtles.6 While it is well known that sub-section (g) is easier to satisfy than subsection (a) and (b), it does not take much imagination to guess that defending parties will prefer invoking sub-section (g). 2.2.2

Who Decides Which Sub-Section Applies?

Case law illuminates that, thus far, more than one sub-section of Article XX can apply to one illegal trade measure. It is, thus, interesting to identify how the panels decide which sub-section to analyze first—recall that if the first sub-section in issue does not survive the scrutiny of the panel, another sub-section will be analyzed (if another is invoked). The following analysis looks into case law where both sub-sections (b) and (g) were invoked to see if any pattern arises, i.e., whether the panels 6 Korea—Measures Affecting Imports of Fresh, Chilled and Frozen Beef, Report of the Appellate Body, WT/DS161/AB/R, WT/DS169/AB/R, Dec. 11, 2000, at para. 161 n.104 [hereinafter Korea—Beef Appellate Body Report].

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and the Appellate Body decided to analyze the sub-sections in the order they are invoked, in alphabetical order, in random order or without any explanation at all. Charnovitz has posited that the panels will first analyze the sub-section into which the measure falls most squarely.7 The following analysis will illuminate whether his theory is confirmed by the case law. 2.2.2.1 Case Law with Invocation of More than One Sub-Section In U.S.—Tuna I, the United States invoked sub-sections (b) and (g) in alphabetic order—and argued them in that sequence as well.8 The panel equally analyzed the sub-sections in that order without any further explanation.9 In U.S.—Tuna II, the United States invoked sub-section (g) first and then sub-sections (b) and (d).10 The panel followed the order set out by the United States and analyzed sub-section (g) before it went on to the analysis under sub-section (b) without explaining why.11 Turning to the disputes under the WTO system, the U.S.—Gasoline and U.S.—Shrimp panels faced the same issue. In U.S.—Gasoline, the United States invoked sub-sections (b), (d) and (g) simultaneously and listed them in alphabetical order.12 The arguments were also structured alphabetically and so was the analysis by the panel without any explanation of the sequence.13 In the panel proceedings in U.S.—Shrimp, the United States invoked sub-sections (b) and (g) simultaneously and in alphabetical order.14 The 7 See Steve Charnovitz, The Moral Exception in Trade Policy, 38 VA. J. INT’L L. 689, 730 [hereinafter Charnovitz, Morals] (1998). 8 See United States—Restrictions on Imports of Tuna, DS21/R- 39S/155, Report of the Panel, Sept. 3, 1991, unadopted, at paras. 3.6, 3.33, 3.40 [hereinafter U.S.—Tuna I]. 9

See id. at paras. 5.24, 5.30.

See United States—Restrictions on Imports of Tuna, DS29/R, Report of the Panel, June 16, 1994, unadopted, at paras. 3.2, 3.94–3.95 [hereinafter U.S.—Tuna II]. 10

11

See id. at paras. 5.11, 5.28.

See United States—Standards for Reformulated and Conventional Gasoline, Report of the Panel, WT/DS2/R, Jan. 29, 1996, at para. 3.4 [U.S.—Gasoline Panel Report]. 12

13

See id. at paras. 3.39, 3.55, 3.58, 6.20, 6.30, 6.35.

14 See United States—Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Panel, WT/DS58/R, May 15, 1998, at para. 3.3 [U.S.—Shrimp Panel Report].

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applicability of the sub-sections were equally argued simultaneously by the United States, showing no preference for one sub-section over the other.15 The panel did not, however, analyze any of the sub-sections, because it based its entire analysis on the chapeau analysis, which it held not to be satisfied.16 Subsequently, the Appellate Body reversed the panel’s holding on the sequence of steps and initiated its analysis by determining firstly whether the U.S. measure fell within the scope of one of the sub-sections.17 In the Appellate Body proceedings, the United States invoked primarily sub-section (g) and, in the alternative, sub-section (b).18 The Appellate Body accepted the preference of sub-section (g) and started its analysis with this sub-section: In claiming justification for its measure, the United States primarily invokes Article XX (g). Justification under Article XX (b) is claimed only in the alternative; that is, the United States suggests that we should look at Article XX (b) only if we find that Section 609 does not fall within the ambit of Article XX (g). We proceed, therefore, to the first tier of the analysis of Section 609 and to our consideration of whether it may be characterized as provisionally justified under the terms of Article XX (g).19 The Appellate Body upon conclusion of its analysis, moreover, determined that: As noted earlier, the United States invokes Article XX (b) only if and to the extent that we hold that Section 609 falls outside the scope of Article XX (g). Having found that Section 609 does come within the terms of Article XX (g), it is not, therefore, necessary to analyze the measure in terms of Article XX (b).20 The Appellate Body accepted the U.S. request to primarily invoke subsection (g) in spite of the fact that Malaysia had claimed that sub-sections 15

See id., paras. 3.145–46.

16

See id., paras. 7.26–62.

17

See Chapter 7.

See United States—Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body, WT/DS58/AB/R, Oct. 12, 1998, at paras. 10, 25 [hereafter U.S.—Shrimp Appellate Body Report]. 18

19

Id., para. 125 (footnote omitted).

20

Id., para. 146.

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(b) and (g) could not be invoked simultaneously, because their scope was different.21 The Appellate Body mentioned Malaysia’s argument and went on to analyze whether living natural resources fell within the scope of subsection (g).22 Having found that the measure fell within the scope of subsection (g), the Appellate Body did not address whether two sub-sections could be invoked and/or apply to the same measure. Based on U.S.—Shrimp, which is the only case where a party to a dispute expressed a preference as to what sub-section it primarily invoked, it must be concluded that if a party invokes one sub-section as its primary choice, the Appellate Body—if it follows its decision in U.S.—Shrimp—will honor this. Moreover, if no preference is stated, the panels have previously followed the order in which the sub-sections were invoked. The latter scenario does not appear, however, to be a well-founded and conscious choice and thus may have a weaker precedential value than that in the U.S.— Shrimp case. In conclusion, there seems to be no evidence that the panels or the Appellate Body have made any kind of analysis of whether one sub-section seemed to be more applicable than another, or, put differently, the panels and the Appellate Body do not analyze whether a measure falls more squarely into one sub-section than another. 3

OVERLAP OF SUB-SECTIONS

Given the fact that case law has included more than one sub-section in the analysis of one single trade measure, it is evident that a certain overlap exists among the sub-sections. If nearly any meaning can be assigned to each category, then they lose their meaning vis-à-vis each other. This could, e.g., be illuminated as: Measures in Violation of the Substantive Obligations Under the GATT

Subsection (g) (a)

21 See U.S.—Shrimp Panel Report, supra note 14, at para. 3.240; U.S.—Shrimp Appellate Body Report, supra note 18, at para. 127. 22

See U.S.—Shrimp Appellate Body Report, supra note 18, at paras. 128–134.

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The more independently the sub-sections are defined, the less overlap they will have. The scope of each sub-section thus not only impacts how many policies can be tested under GATT Article XX (which was illustrated as smaller circles), but also, to some degree, defines the overlap. 3.1 What Is the Problem with Overlap of Sub-Sections? The most important problem with the overlap of the sub-sections is “the reason behind” the exception. Exceptions are created to carve out policy areas—and theses policy areas need to be defined. If, e.g., “green policies” are an exception, and this is interpreted as to also cover “green colored cars,” there is clearly a problem with the scope and also “the reason behind” the sub-section. Obviously, the interpretation of GATT Article XX is, thus far, not problematic in scope, but more thought could be put into which policies belong in which sub-sections. Without more thoughts on the matter and without a recognition that the sub-sections were drafted in the late 1940s, the scope and “the reason behind” giving special treatment to some trade barriers arising out of some policies gives no real meaning. There has to be a meaning, a reason behind the sub-sections. Clearly, subsections can develop with evolutionary interpretation as time passes. But evolutionary interpretation is not a substitute for analyzing the reason and meaning behind including one policy in one sub-section, and perhaps not in another, because there has to be some “reason”—via evolutionary interpretation—to include yet a new policy inside the scope a sub-section. In short, exceptions have to be somewhat defined. To overcome the issue of overlap, I suggest the utilization of the principle of effectiveness in treaty interpretation. However, before coming to the issue of solving the overlap, a few other issues much be clarified, as well as an introduction into “the original” meaning behind the sub-sections. 4

TOOLS FOR FURTHER ANALYSIS

In order to solve the issue of overlap among the sub-sections, and in order to go back and find the “original” meaning behind the sub-sections, basic issues regarding interpretation, in general, and regarding the “policy” test, in particular, must be introduced. 4.1 Interpretation Interpretation of the sources of law is explained eloquently by Alf Ross: The judicial decision is, however, less free than the legislative decision. The authority administering the law, in particular the judge, feels himself bound by the working of the statute and other sources of law. Nevertheless, these will always leave room for inter-

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pretation, and the concrete legal norm in which the decision results is always a new creation in the sense that it is not a mere logical derivative of given rules.23 Interpretation can be said to be the understanding of the sources of law. The style of interpretation, however, differs from court to court. In international law, in the broader sense, customary rules of treaty interpretation are laid down in the VCLT Articles 31–33.24 The core analyses in this book, however, solely focuses on the DSM of the WTO and those rules of interpretation particular to this sub-system of jus gentium. Moreover, the analyses focus on the style of interpretation in relation to the “policy” test in GATT Article XX. The analyses do thus not aim at giving a full overview of the style of interpretation in a broader sense in relation to the GATT and the other agreements under the WTO system.25 Therefore, the following analyses of interpretation are quite limited. 4.2 Interpretation in the WTO With the advent of the WTO, the DSU became the legal basis for adjudication, maintaining, however, the reference to GATT Article XXIII: 1(a)–(c) as the systematic approach for violation cases, non-violation cases and “other” cases. DSU Article 3.2 spells out the role for the DSM and the manner in which interpretation should be conducted by the panelists in panels and the Appellate Body. DSU Article 3.2 reads as follows: The dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading system. The Members recognize that it serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law. Recommendations and

23

ALF ROSS, ON LAW AND JUSTICE, at 331 (1959).

For a more thorough analysis of the utilization of the VCLT as customary law, see, e.g., OLE SPIERMANN, MODERNE FOLKERET, at 381–83 (Jurist og Økonomforbundets Forlag, 2d ed. 2004); Michael Lennard, Navigating by the Stars: Interpreting the WTO Agreements, 5 J. INT’L ECON. L. 17, 17–22 (2002). 24

25 For a more thorough analysis of interpretation in the WTO, see, e.g., Lennard, supra note 24; BUGGE THORBJØRN DANIEL, WTO ADJUDICATION, at 136–60 (2005). See also ERNST-ULRICH PETERSMANN, THE GATT/WTO DISPUTE SETTLEMENT SYSTEM, at 111–17 (1997).

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rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements” [emphasis added]. Interpretation of the “covered agreements” shall thus be conducted in accordance with customary rules of interpretation.26 The Appellate Body in the WTO has distinguished itself by having pledged itself faithful to one particular style of interpretation, which is noted by former Appellate Body Member Ehlermann: For someone having spent most of his professional life observing the European Court of Justice in interpreting European Community law, the difference in style and methodology could hardly be more radical. I do not remember that the ECJ has ever laid down openly and clearly the rules of interpretation that it intended to follow.27 On the issue of whether the Appellate Body (and the panels) is/are expected to follow the style of interpretation, which the Appellate Body has said it follows in previous reports, former Appellate Body Member, Dr. Ehlermann, has posited: The very early consensus on interpretative principles has facilitated decision-making and contributed considerably to the consistency and coherence of Appellate Body reports . . . Even greater are the benefits of the open and transparent choice of the Appellate Body’s interpretive methods on the outside world. This choice has given clear guidance to Members of the WTO and to panels. It has thus contributed to “providing security and predictability to the multilateral trading system” . . . On a more general level, the interpretative method, established and clearly announced by the Appellate Body, has had a legitimizing effect, and this from the very beginning of its activity.28 The first WTO case, the U.S.—Gasoline case, was thus the first case to utilize the text of the DSU as a basis for conducting the analyses. In this case, the Appellate Body recognized VCLT Article 31:1 as being a part of customary law. Moreover, the Appellate Body, in Japan—Alcohol, confirmed 26

For an analysis of the “covered agreements” and terms of reference, see Chapter 9.

Claus-Dieter Ehlermann, Six Years on the Bench of the “World Trade Court,” 36 J. WORLD TRADE 605, 616 (2002). 27

28

See id. at 616–17.

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that VCLT Article 32 equally forms a part of customary law on treaty interpretation, as well as the remaining part of Article 31.29 The analyses in this book, however, exclude analysis on Article 33 relating to different languages.30 4.3 VCLT Article 31 The general rule on treaty interpretation, as laid down in VCLT Article 31, reads as follows: 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended.

29 See Japan—Taxes on Alcoholic Beverages, Report of the Appellate Body, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, Oct. 4, 1996, at 10–11 [hereinafter Japan—Alcohol Appellate Body Report]. 30 Article 33 is, nevertheless, also considered part of customary law by the Appellate Body; see United States—Final Countervailing Duty Determination with Respect to Certain Softwood Lumber From Canada, WT/DS257/AB/R, Jan. 19, 2004, para. 59 [hereinafter U.S.—Softwood Lumber].

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Establishing that interpretation is based on VCLT Article 31:1 does, however, not solve all issues, because the text itself of VCLT Article 31:1 is ambiguous. VCLT Article 31:1 consists of three approaches: the ordinary meaning or textual approach; the context; and object and purpose or teleological approach.31 As to the three different approaches, former Appellate Body Member Ehlermann posited that the Appellate Body has attached the greatest weight to the textual approach.32 He explains that “[t]his is easily illustrated by the frequent references in Appellate Body reports to dictionaries.”33 Emphasizing the criteria of “ordinary meaning” has thus, in Ehlermann’s opinion, led to a “literal” interpretation, as opposed to a “teleological” one.34 Ehlermann, moreover, posits that the object and purpose approach has more weight than the context.35 The literal or textual approach is illuminated in Japan—Alcohol, where the Appellate Body posited: “interpretation must be based above all upon the text of the treaty.”36 The manner in which, including the sequence of steps, the interpretation should be conducted is described by the Appellate Body in U.S.— Shrimp: 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 read-

31

See, e.g., Ehlermann, supra note 27, at 615–16.

32

See id. at 615.

33

Id.

34

See id. at 616.

35

See id.

36 Japan—Alcohol Appellate Body Report, supra note 29, at p. 12 (emphasis added). The Appellate Body referenced this sentence to Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, 1994 I.C.J. 6, 20; Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and Admissibility, Judgment, 1995 I.C.J. 6, at 18.

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ing of the text itself is desired, light from the object and purpose of the treaty as a whole may usefully be sought.37 A different and more “holistic” approach and a different sequence of steps are, however, suggested by the panel in U.S.—Section 301: Text, context and object-and-purpose correspond to well established textual, systemic and teleological methodologies of treaty interpretation, all of which typically come into play when interpreting complex provisions in multilateral treaties. For pragmatic reasons the normal usage, and we will follow this usage, is to start the interpretation from the ordinary meaning of the “raw” text of the relevant treaty provisions and then seek to construe it in its context and in the light of the treaty’s object and purpose. However, the elements referred to in Article 31—text, context and object-and-purpose as well as good faith—are to be viewed as one holistic rule of interpretation rather than a sequence of separate tests to be applied in a hierarchical order.38 On the issue of sequence of steps in interpreting the text, Lennard, however, posits that: A sequential approach of looking at the text and then object and purpose is often convenient but . . . not absolutely necessary. The consideration of different materials is a mental process that need not be done in any particular order, as long as the priorities and relationships between the different types of materials are kept in view.39 For purposes of the analyses in this book, the above is sufficient in order to conduct the analyses of the principle of effectiveness in treaty interpretation in relation to the “policy” test. A more thorough analysis of the different elements in VCLT Article 31 was recently submitted in another book, and interested readers are urged to consult it for further analyses.40

37 U.S.—Shrimp Appellate Body Report, supra note 18, at para. 114 (footnote omitted). 38 United States—Sections 301–310 of the Trade Act of 1974, Report of the Panel, Dec. 22, 1999, WT/DS152/R, para. 7.22 [hereinafter U.S.—Section 301 Panel Report]. 39

Lennard, supra note 24, at 28.

40

See DANIEL, supra note 25.

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4.3.1

Interpretation of an Exception

The “policy” test is a test within an exception, i.e., a conditional right. There has been some uncertainty in the past as to whether an exception should be interpreted differently than the substantive obligations. Therefore, the issue of interpretation in relation to an exception should be clarified before getting into the specifics regarding interpretation of the “policy” test. In GATT jurisprudence, Article XX was interpreted “narrowly.” The most well-known expression of this narrow interpretation stems from the U.S.—Tuna cases. In the U.S.—Tuna I case, the panel referenced this narrow interpretation style of the exception to Canada—Foreign Investment 41 and to U.S.— Section 337.42 The two references are, however, not supportive regarding narrow interpretation.43 The panel in U.S.—Tuna II utilized the same two unsupportive cases to support its “long standing practice” of “narrow” interpretation,44 which perhaps evidences a reliance on the footnote in U.S.—Tuna I without reading the actual cases. The uncertainties regarding interpretation of an exception were, however, clarified later. On a logical basis, it should be assumed that this kind of narrow interpretation should be deviated from with the advent of the DSU and the pledge to utilize customary treaty interpretation rules, which do not provide for special rules of interpretation of an exception. The clear rejection to differentiating the styles of treaty interpretation among clauses in the text of the WTO Agreements did, however, not arise until the EC— Hormones case, where the Appellate Body held: In much the same way, merely characterizing a treaty provision as an “exception” does not by itself justify a “stricter” or “narrower” interpretation of that provision than would be warranted by exam41 See Canada—Administration of the Foreign Investment Review Act, BISD 30S/140, adopted Feb. 7, 1984 [hereinafter Canada—Foreign Investment]. 42

See U.S.—Tuna I, supra note 8, at para. 5.22.

See id., citing to Canada—Foreign Investment, supra note 41, at para. 5.20 and United States—Section 337 of the Tariff Act of 1930, adopted Nov. 7, 1989, BISD 36S/345, at para. 5.27. See also Charnovitz, Morals, supra note 7, at 720. 43

44 See U.S.—Tuna II, supra note 10, at para. 5.26 n.84. See also Charnovitz, Morals, supra note 7, at 720.

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ination of the ordinary meaning of the actual treaty words, viewed in context and in the light of the treaty’s object and purpose, or, in other words, by applying the normal rules of treaty interpretation. It is also well to remember that a prima facie case is one which, in the absence of effective refutation by the defending party, requires a panel, as a matter of law, to rule in favour of the complaining party presenting the prima facie case.45 On that basis, it is evident that the interpretation of the scope of each sub-section shall be conducted by utilizing normal rules of treaty interpretation, i.e., VCLT Article 31, and, if necessary, VCLT Article 32.46 4.3.2

Interpretation of the “Policy” Test

Returning to the more narrow scope of this analysis, the Appellate Body once focused some attention on the interpretation of the “policy” test of GATT Article XX. In that instance, the Appellate Body held that living natural resources were considered included in the term “exhaustible natural resources” in sub-section (g): Textually, Article XX (g) is not limited to the conservation of “mineral” or “non-living” natural resources. . . . One lesson that modern biological sciences teach us is that living species, though in principle, capable of reproduction and, in that sense, “renewable,” are in certain circumstances indeed susceptible of depletion, exhaustion and extinction, frequently because of human activities. Living resources are just as “finite” as petroleum, iron ore and other non-living resources. The words of Article XX (g), “exhaustible natural resources,” were actually crafted more than 50 years ago. They must be read by a treaty interpreter in the light of contemporary concerns of the community of nations about the protection and conservation of the environment. While Article XX was not modified in the Uruguay Round, the preamble attached to the WTO Agreement shows that the signatories to that Agreement were, in 1994, fully aware of the importance and legitimacy of environmental protection as a goal of national and international policy. . . . From the perspective embodied in the preamble of the WTO Agreement, we note that the generic term “natural resources” in

45 European Communities—Measures Concerning Meat and Meat Products, Report of the Appellate Body, WT/DS26/AB/R, WT/DS48/AB/R, Jan. 16, 1998, at para. 104 [EC—Hormones Appellate Body Report] (footnote omitted). 46

See also Charnovitz, Morals, supra note 7, at 731–32.

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Article XX (g) is not “static” in its content or reference but is rather “by definition, evolutionary.”47 The interpretation of the meaning of GATT Article XX (g) in the U.S.—Shrimp case illuminates that the textual analysis is supplemented by an evolutionary understanding of the words. This means that the words are informed by contemporary concerns in the society—as well as adherence to the policy goals laid down in the Preamble of the WTO Agreement, which includes reference to both sustainable development and the environment.48 4.3.2.1 Evolutionary Interpretation Evolutionary reading of a treaty text is the mechanism by which a term, which originally had a different meaning, can be read to have a different and more modern meaning, which Lennard explains as follows: The correct approach [of utilizing the evolutionary understanding of treaty terms] is probably to apply the international law meanings as at the time of negotiation, to the text to determine its ‘initial reality’ [footnote omitted] and then to determine . . . whether a term used has the ‘evolutionary’ characteristics referred to [in US—Shrimp].”49 If, however, the evolutionary approach is not utilized correctly, Lennard posits that it can have the effect of a disguised teleological approach.50 It is, however, doubtful whether the Appellate Body’s justification of its result, i.e., the inclusion of the evolutionary understanding of the term “exhaustible natural resource,” was necessary. During the negotiations of sub-section (g), it was posited that the sub-section could include living natural resources.51 This result should have been reached based on a different analysis, because the issue of “evolution” of the term was not even relevant when the term could be argued to have the same meaning then as now. The Appellate Body also noted that the term “exhaustible natural resources” 47 US—Shrimp Appellate Body Report, supra note 18, at paras. 128–131 (footnote omitted; emphasis added and omitted). 48 See Appleton, supra note 2, at 481–83. See also SPIERMANN, supra note 24, at 385–86 who explains the principle in public international law in general. 49

Lennard, supra note 24, at 76.

50

See id. at 75.

51

See Section 5.4.

Policy Area of GATT Article XX • 205

at the time of the drafting was not meant to exclude living natural resources,52 but this fact apparently did not prevent the Appellate Body from including an evolutionary interpretation—albeit it logically is absurd. In other words, while the conclusion may be the same, i.e., that the term “exhaustible natural resources” can be argued to include living natural resources, the style of interpretation by which the Appellate Body based its result is inherently wrong. The result in the U.S.—Shrimp case regarding living natural resources was presumably arrived at before any analysis was made on the issue—and the evolutionary understanding was a justification for the result rather than an analysis. Assigning the “original” meaning to the words in the antiquated text is essentially a VCLT Article 32 approach and is therefore not important for an otherwise successful Article 31 interpretation.53 Moreover, reliance on the “original” meaning may not be desirable for the legitimacy of the DSM of the WTO, because this potentially could exclude many contemporary concerns from the exceptions. Therefore, while it is not desirable to assign the original values to the sub-sections, if these do not include contemporary concerns, it is nevertheless important to understand the original meaning before the issue of evolutionary meaning is considered. In the U.S.—Shrimp case, the Appellate Body also informed how object and purpose should be understood in relation to GATT Article XX: “Moreover, the Panel did not look into the object and purpose of the chapeau of Article XX. Rather, the Panel looked into the object and purpose of the whole of the GATT 1994 and the WTO Agreement, which object and purpose it described in an overly broad manner.”54 The Appellate Body also referred to its note on interpretation of GATT Article XX in the U.S.—Gasoline case, where it stated that the object and purpose analysis should be informed by the chapeau of GATT Article XX: “It is, accordingly, important to underscore that the purpose and object of the introductory clauses of Article XX is generally the prevention of ‘abuse of the exceptions of [what was later to become] Article [XX]’.”55 52

See U.S.—Shrimp Appellate Body Report, supra note 18, at para. 131 n.114.

53 The negotiation records and the “original” understanding of the words must only be utilized in certain well-defined situations as laid down in VCLT Article 32. 54 U.S.—Shrimp Appellate Body Report, supra note 18, at para. 116 (emphasis in original). 55 United States—Standards for Reformulated and Conventional Gasoline, WT/ DS2/AB/R, Apr. 29, 1996, at 22–23 [hereinafter U.S.—Gasoline Appellate Body Report].

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Having just evidenced that certain contemporary concerns, which are laid down in the Preamble of the WTO Agreement, have led to an evolutionary reading of the term “natural resources,” it could appear confusing that the Appellate Body also states that the object and purpose in the WTO Agreement is too broad. On a more practical level, this nevertheless makes sense, because the object and purpose from the WTO Agreement can be a multitude of objects and purposes—and this is an impossible factor to rely on.56 Or put differently, the Appellate Body and the panels logically needs to utilize an evolutionary style of interpretation when the antiquated text of the exception does not meet contemporary needs. 4.3.2.2 Lack of Importance Attached to Interpreting and Defining the Scope In this section, the policy analyses in U.S.—Gasoline and U.S.—Gambling are analyzed specifically because they illuminate that neither the panels nor the Appellate Body attaches great importance to defining the scope of the sub-sections. 4.3.2.2.1 U.S.—Gasoline “Clean Air” Issue Under Sub-Sections (b) and (g) In the U.S.—Gasoline case, the United States was the only appellant, meaning that the appellees, Venezuela and Brazil, had not filed responses under the Working Procedures57 Article 23 and had thus in effect not appealed any issues from the panel report but merely responded as an appellee according to Working Procedures Article 22. The United States had, of course, not appealed that the panel had found “clean air” to be an “exhaustible natural resource” falling within the policy scope of sub-section (g)58—as well, the panel had found the policy of “reducing air pollution” to fall within sub-section (b) as a policy “concerning the protection of human, animal and plant life or health.”59 What the United States did appeal were the findings that the U.S. trade measure in issue did not satisfy other requirements of Article XX(g).60

56

See also Lennard, supra note 24, at 28.

See Working Procedures for Appellate Review, WT/AB/WP/7 (Article 22 and 23 have not amended since the Gasoline case was adjudicated; see WT/AB/WP/1-7). 57

58

See U.S.—Gasoline Panel Report, supra note 12, at para. 6.37.

59

See id., at para. 6.21.

60

See U.S.—Gasoline Appellate Body Report, supra note 55, at 9.

Policy Area of GATT Article XX • 207

In response, the appellees argued, inter alia, that “clean air” did not qualify as an “exhaustible natural resource” within the meaning of sub-section (g).61 The arguments by the appellees were, nevertheless, not “appeals,” but the appellees argued “they believed it would be within the scope of authority of the Appellate Body, if it found it necessary to do so, to address the results of the Panel’s examination of those two [one of them the “policy”] issues.”62 The Appellate Body observed: “the issues in fact raised by the Appellant, the United States, are not of the kind, which cannot be decided without at the same time necessarily resolving the clean air issue.”63 The U.S.—Gasoline analysis illuminates that the Appellate Body in fact viewed the remaining trade tests in GATT Article XX(g) as detached from issues relating to the “policy” test. Moreover, it evidences that the Appellate Body did not find it important to analyze whether “clean air” should fall within the scope of sub-section (g), as well as whether “reducing air pollution” should fall within the scope of sub-section (b). Therefore, these passages from the U.S.—Gasoline case reflect the neglected status of the “policy” test. Clearly, the Appellate Body did not find it important to define the scope of the sub-sections—even when it based its choice of sub-section on a questionable analysis by the panel. In this particular case, the issue was between sub-sections (b) and (g). The subsequent trade tests in these two sub-sections are not identical. It must, however, be assumed that the idea about having different tests in the sub-sections should be guided by the notion that only those measures relating to the conservation of exhaustible natural resources should meet the “related to” test—and only those measures relating to human, animal or plant life or health should meet the “necessity” test. Therefore, the “clean air” issue needed to be resolved in order to determine the correct subsequent trade test. The issue of detaching the “policy” test in relation to sub-sections (a) and (b) is also important. These two sub-sections consist of identical subsequent trade tests. Therefore, if the “policy” analysis is detached from the subsequent trade tests in these two sub-sections, the trade tests are identi61

See id. at 11.

62

See id. at 11–12.

63

See id. at 12.

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cal, and the idea about having sub-sections is lost. This requires a bit of abstract thinking to understand. Clearly, when distinguishing between sub-section (b) and (g), there is a difference in the subsequent trade tests, and there is a practical effect to figuring out which policies belong where. However, when analyzing sub-sections (a) and (b), the subsequent trade tests are identical, and there is no practical difference between the sub-sections. This does not mean that it is a desirable approach. On an abstract level, it is important to give meaning to the sub-sections as they are written. If there is no difference between subsections (a) and (b), because the panels and the Appellate Body has decided they do not look into the scope of either, it has two effects: (1) it means that sub-sections (a) and (b) could be one sub-section and not two; and (2) more importantly, it means that the idea behind having independent sub-sections is lost. When losing the idea behind an exception, one loses legal certainty, because exceptions need reason to qualify as being exceptions. It is hard to imagine any country signing a treaty where the exceptions are “reasonable trade measures arising out of relevant policies.” This type of reason is also mentioned earlier—and it cannot be underscored enough that this constitutes the sole essence of justifying having exceptions. 4.3.2.2.2 U.S.—Gambling Reasons for “Gambling Prohibition” Under Sub-Section (a) Another example of overlooked importance of the “policy” test is found in the U.S.—Gambling case. The panel described the invoked policy reasons as being: The United States argues that the remote supply of gambling and betting services raises significant concerns relating to the maintenance of public order and the protection of public morals. According to the United States, the remote supply of gambling poses threats related to organized crime, money laundering, fraud and other criminal activities; risks to children given the availability of remotely supplied gambling and betting services to children; and particular health risks. The United States submits that it is for these reasons that it places stringent restrictions on the ability of any operator to offer gambling and betting services by remote supply, regardless of whether such services are supplied from the territory of another Member or from within the territory of the United States.64 64 United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, Report of the Panel, Nov. 10, 2004, WT/DS285/R, at para. 6.479 [hereinafter U.S.—Gambling Panel Report] (footnotes omitted; emphasis added).

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As described earlier in Chapter 7, Section 4.1.1, the panel found the U.S. measure to fall within the scope of the public morals and public order exception in the GATS Agreement. The issue of who and how the policy reasons were invoked, however, arose again at the appellate level: [W]ith respect to Article XIV(a), Antigua claims that the United States identified only two interests relating to “public morals” or “public order,” namely: (i) organized crime; and (ii) underage gambling. Antigua argues that the Panel, however, identified an additional three concerns on its own initiative: (i) money laundering, (ii) fraud, and (iii) public health.65 The Appellate Body made the following remarks to the issue: Turning to the issues on appeal, we begin with the three protected interests that the Panel allegedly identified on its own in examining the United States’ defence under paragraph (a) of Article XIV, namely, health concerns, and combating money laundering and fraud. In both its first and second written submissions to the Panel, the United States, in responding to one of Antigua’s claims under the GATS, identified five ‘concerns associated with the remote supply of gambling [services]. These “concerns” relate to: (1) organized crime; (2) money laundering; (3) fraud; (4) risks to youth, including underage gambling; and (5) public health. When subsequently arguing that the Wire Act, the Travel Act, and the IGBA are justified under Article XIV(a), the United States explicitly referred back to the discussion, earlier in its second written submission to the Panel, of all these interests except for that relating to public health. In other words, four of the five interests mentioned by the Panel were plainly discussed or referred to by the United States as part of its defence under Article XIV(a). The fifth interest—relating to public health—was prominently identified by the United States in a previous discussion of the protected interests relating to the remote supply of gambling services and, therefore, was not an invention of the Panel. In our view, the fact that this fifth interest was not explicitly raised again in the context of the United States’ Article XIV arguments should not have precluded the Panel from considering it as part of its analysis under Article XIV(a). We therefore dismiss this ground of Antigua’s appeal.66 65 U.S.—Gambling Appellate Body Report, supra note 4, at para. 278 (footnotes omitted; emphasis added). 66

Id. at paras. 283–284 (footnotes omitted; emphasis added).

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4.3.2.2.3 Concluding Remarks on Importance of Definition of Scope It is important to note that in the U.S.—Gasoline case, the Appellate Body did not analyze the difference between sub-sections (b) and (g) regarding the clean air issue, because it was not on appeal but merely legal arguments. The Appellate Body did, however, in a later case explain that a panel has a right to develop its own reasoning in relation to DSU Article 11: [W]e believe that the objection of the European Communities overlooks the distinction between legal claims made by the complainant and arguments used by that complainant to sustain its legal claims . . . Panels are inhibited from addressing legal claims falling outside their terms of reference. However, nothing in the DSU limits the faculty of a panel freely to use arguments submitted by any of the parties—or to develop its own legal reasoning—to support its own findings and conclusions on the matter under its consideration. A panel might well be unable to carry out an objective assessment of the matter, as mandated by Article 11 of the DSU, if in its reasoning it had to restrict itself solely to arguments presented by the parties to the dispute.67 This point was reiterated more recently in U.S.—Gambling, where the Appellate Body posited: In the context of affirmative defences, then, a responding party must invoke a defence and put forward evidence and arguments in support of its assertion that the challenged measure satisfies the requirements of the defence. When a responding party fulfils this obligation, a panel may rule on whether the challenged measure is justified under the relevant defence, relying on arguments advanced by the parties or developing its own reasoning. The same applies to rebuttals. A panel may not take upon itself to rebut the claim (or defence) where the responding party (or complaining party) itself has not done so.68 Had the Appellate Body taken that approach, it could have found it necessary to develop its own reasoning—or it could have chosen to hold that it found it impossible to analyze the exception without knowing which sub-section the policy belonged in. But the Appellate Body has, thus far, not found it important to be as rigid on that matter as is suggested in this book. 67 U.S.—Gasoline Appellate Body Report, supra note 55, at para. 156 (emphasis added). 68

Id., at para. 282.

Policy Area of GATT Article XX • 211

4.4 VCLT Article 32 In order to find the “original” meaning of the sub-sections, the negotiation records need to be studied. However, before going into the substance of the negotiating records, it is vital to clarify when these formally can be utilized for interpretation purposes. These situations are regulated by VCLT Article 32. It should, however, be underscored that inquiries into the negotiation records should only be made when it is provided for in VCLT Article 32.69 VCLT Article 32 lays down the rules for utilization of supplementary means of treaty interpretation—including preparatory work and circumstances of its conclusion: Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable. Ehlermann attributes the lack of reliance by the Appellate Body on travaux préparatoires to its secondary rank in VCLT Article 32—the lack of reliable records and the ambiguity stemming from disagreement among the negotiators in those records.70 These records can, inter alia, be found in the WTO headquarters in Geneva in the Archives. The records are, however, not easy to get an overview of, due to an originally created primitive system of categorization and lack of an indexing system. Finding, e.g., the preparatory work on GATT Article XX entails scrutiny of many volumes of negotiation records. Generally speaking, preparatory work is not emphasized in jus gentium. The most logical explanation is probably found in the context of the world order as it has evolved since the establishment of the United Nations and the increase in legal instruments adopted by many countries. To these legal instruments, where some of them date back several decades, many new countries have emerged. The growth of member states to the United 69

See e.g., SPIERMANN, supra note 24, at 386–87.

70

See Ehlermann, supra note 27, at 616.

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Nations illuminates how more countries are emerging as the world changes; the original 51 members of the United Nations have now expanded to 192.71 In the context of the WTO, the founding fathers of the GATT (meaning at the time, the ITO) were 23 countries to the GATT72 and 53 to the Havana Charter,73 whereas there presently are 149 WTO members.74 New countries have thus not participated in setting up the world order, as we know it today, but are nevertheless frequently becoming signatories to, and members of, the established international regimes. This fact alone evidences why preparatory work—travaux préparatoires—to the legal instruments are not the focus when analyzing international legal instruments; it is simply not in the interest of states to be bound or subject to interpretations arising out of discussions they were not attending.75 Yet, they nevertheless play a role—albeit by means of VCLT Article 32 the preparatory work is supposed to be secondary. 4.4.1

VCLT Article 32 and GATT Article XX

The utilization of VCLT Article 32 in relation to preparatory work of GATT Article XX, may be problematic for three reasons. 1.

2.

3.

The negotiation records are difficult to get access to, and they are not indexed in a manner that makes it easy to find the “right” document. In relation to defining the scope of the sub-sections, it appears superfluous to rely on negotiation records from the 1940s when contemporary issues are sought to be included in the sub-sections. Many new countries have emerged since the original contracting parties negotiated the ITO and the GATT.

On the basis of these three observations alone, it would seem reasonable if the panels and the Appellate Body in the WTO system (i.e., after the advent of the DSU) would refrain from making any inquiries into the negotiating. This is, nevertheless, not the case.

71

See http://www.un.org/Overview/growth.htm.

72

See GATT 1947 Preamble.

73

See Havana Charter Preamble.

74

See http://www.wto.org.

See generally OLE ESPERSEN ET AL., FOLKERET 78–79 (Christian Ejlers’ Forlag, 2d ed. 2003). 75

Policy Area of GATT Article XX • 213

In Korea—Beef, the panel enumerated the times when VCLT Article 32 on supplementary means of interpretation—not limited to preparatory work—had been utilized, which is not few.76 This illuminates a tendency to utilize supplementary means of interpretation in general. More interesting, however, is the fact that the Appellate Body, in interpreting GATT Article XX, has utilized the preparatory work to confirm their VCLT Article 31 interpretation of the chapeau of GATT Article XX. This was done in U.S.—Shrimp, where the Appellate Body stated: In our view, the language of the chapeau makes clear that each of the exceptions in paragraphs (a) to (j) of Article XX is a limited and conditional exception from the substantive obligations contained in the other provisions of the GATT 1994, that is to say, the ultimate availability of the exception is subject to the compliance by the invoking Member with the requirements of the chapeau. This interpretation of the chapeau is confirmed by its negotiating history . . . Several proposals were made during the First Session of the Preparatory Committee of the United Nations Conference on Trade and Employment in 1946 suggesting modifications [footnote omitted]. In November 1946, the United Kingdom proposed that “in order to prevent abuse of the exceptions of Article 32 [which would subsequently become Article XX],” the chapeau of this provision should be qualified. This proposal was generally accepted, subject to later review of its precise wording. Thus, the negotiating history of Article XX confirms that the paragraphs of Article XX set forth limited and conditional exceptions from the obligations of the substantive provisions of the GATT. Any measure, to qualify finally for exception, must also satisfy the requirements of the chapeau. This is a fundamental part of the balance of rights and obligations struck by the original framers of the GATT 1947.77 The Appellate Body opined on the utilization of preparatory work and VCLT Article 32, albeit in a footnote: Article 32 of the Vienna Convention permits recourse to “supplementary means of interpretation, including the preparatory work 76 See Korea—Measures Affecting Imports of Fresh, Chilled and Frozen Beef, Report of the Panel, WT/DS161/R, WT/DS169/R, July 30, 2000, para. 539 [hereinafter Korea—Beef Panel Report]. 77 U.S.—Shrimp Appellate Body Report, supra note 18, at para. 157 (footnotes omitted).

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of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.” Here, we refer to the negotiating history of Article XX to confirm the interpretation of the chapeau we have reached from applying Article 31 of the Vienna Convention.78 The utilization of VCLT Article 32, in this instance, may be questionable for a reason other than the three set forth above. A confirmation of an otherwise reasonable result from a VCLT Article 31 interpretation does not appear necessary when the negotiation records are attached with the problems enumerated above.79 The result appears reasonable, because an exception containing language, which constitutes conditions attached to the exception, by nature is a “conditional right.” The text of the chapeau and the structure of GATT Article XX do not point to the opposite result; hence, it appears reasonable that the different tests in the exception, the conditions on the right, is to avoid abuse of the exception. Avoidance of abuse, inter alia, means that the exception should not apply to all measures, but rather to certain altruistic measures. Altruistic, in this connection, means that the exceptions should not be utilized for protectionistic purposes but only to achieve the goal of the legitimate policy pursued by the trade measure. The Appellate Body also recognized that the exception was for altruistic purposes when stating: The chapeau of Article XX is, in fact, but one expression of the principle of good faith. This principle, at once a general principle of law and a general principle of international law, controls the exercise of rights by states.80 This evidences a relaxed relationship to the issue of whether it is beneficial or necessary to include references to negotiation records. Consequently, it must be concluded that negotiation records are utilized for confirmation of results, which otherwise appears reasonable. 78

Id., para. 157 n.152 (emphasis added).

79 See Lennard, supra note 24, at 51, where he posits that the report in this aspect should be treated with caution, because it did not address the lack of public availability of the records. 80

U.S.—Shrimp Appellate Body Report, supra note 18, at para. 158.

Policy Area of GATT Article XX • 215

For purposes of the analyses in this book it is, however, more important to understand when it is appropriate and necessary to consult the negotiation records. The records can serve the purpose of finding an original meaning of the scope of the sub-sections for a particular policy in question. This can be useful in relation to confirming a VCLT Article 31 interpretation, as well as a VCLT Article 32 situation, where the VCLT Article 31 interpretation is ambiguous. Moreover, the records can be utilized to establish whether an accidental or purposeful overlap among the sub-sections for certain welldefined policies is inherent to the text. Finally, it should not be forgotten that in the event an evolutionary understanding of a certain phrase is sought, it is important to establish whether the meaning of the phrase indeed has changed, which entails understanding of the original meaning. 4.4.2

Preparatory Work in Non-VCLT Article 32 Situations

Sometimes prepatory work is, unforfunately, used without a legal basis. This was done in the U.S.—Shrimp case, where the Appellate Body concluded that the term “natural resources” included both living and non-living. In this analysis, the Appellate Body referenced negotiating history in a footnote: “Furthermore, the drafting history does not demonstrate an intend on the part of the framers of the GATT 1947 to exclude ‘living’ natural resources from the scope of application of Article XX (g).”81 Firstly, there is no explanation of why negotiation records are included in the analysis. It must be assumed that if it was in connection with the utilization of VCLT Article 32 and, hence, to confirm the result, the Appellate Body would have stated that. Secondly, there is no reference to which negotiation records point to this result. Without a clear reference to a page in a volume of these negotiation records, it can take several days to find the relevant records of negotiations—if at all possible. Certain documents point to the fact that only those natural resources that are exhaustible in the traditional sense, meaning minerals, coal and oil (which are non-living natural resources), were envisaged to be included in sub-section (g).82 This was also the argument of India, Pakistan and Thailand.83 Other documents, however, indicate that living natural resources were thought to fall within sub-section (g).84 It would have been advantageous to reference the documents the Appellate Body utilized in reaching this conclusion. 81

Id. at para. 131 n.114 (emphasis in original).

82

See Section 5.4.

83

U.S.—Shrimp Appellate Body Report, supra note 18, at para. 127.

84

See Section 5.4.

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5

”ORIGINAL” SCOPE OF THE SUB-SECTIONS?

This section examines what the preparatory work indicates about the original ideas of the scope of the sub-sections. It should, however, be noted that the analysis is limited to those records recovered in the research of the non-systematically filed documents from the Havana negotiations.85 The meaning of the sub-sections at the time of the drafting poses one analytical problem: the difficulty in understanding the meaning of the words as they were understood at that time. Initially it should be noted that the General Exceptions in GATT Article XX were drafted around 1946–48 and were intended to allow flexibility so that countries could enact trade barriers to tackle special problems that were common to most countries at the time.86 This, however, may be a truth with several modifications; at the time of the drafting of the Havana Charter, the United States was a very dominating party in the negotiations and design of the policies.87 These special problems (whether common to the United States or to others originally) have changed over the years. Conversely, the General Exceptions have not been redrafted to mirror the development. This has led to current special problems to be interpreted as falling within the scope of the old sub-sections. The Appellate Body has phrased it as follows: The words of Article XX (g), “exhaustible natural resources,” where actually crafted more than 50 years ago. They must be read by a treaty interpreter in the light of contemporary concerns of the community of nations about the protection and conservation of the environment. While Article XX was not modified in the Uruguay Round, the preamble attached to the WTO Agreement shows that the signatories to that Agreement were, in 1994, fully aware of the importance and the legitimacy of environmental protection as a goal of national and international policy.88

85 Several visits to the archives did not produce more results than those illuminated in this section of the book. References utilized in panel and Appellate Body reports are, however, recovered. A special thanks to Steve Charnovitz for his research and help on this issue—and a special thanks to Bruno Ventrone from the archives for assisting me in finding the various documents. 86 See V.A. SEYID MUHAMMAD, THE LEGAL FRAMEWORK OF WORLD TRADE 170 (1958). 87

See RAJ BHALA, INTERNATIONAL TRADE LAW: THEORY AND PRACTICE 130–31 (2001).

88

See U.S.—Shrimp Appellate Body Report, supra note 18, at para 129.

Policy Area of GATT Article XX • 217

5.1 Negotiation Records for ITO The negotiation records for GATT Article XX are those of the Havana Charter Article 45.89 The Havana Charter Article 45 is identical to GATT Article XX for purposes of sub-sections (a), (b) and (g). The Havana Charter Article 45 reads as follows: Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between Member countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Chapter shall be construed to prevent the adoption or enforcement by any Member of measures: necessary to protect public morals; . . . (iii) necessary to protect human, animal or plant life or health; . . . (viii) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption. The Havana Charter, however, contained one more sub-section, which falls in the environmental area: (x) taken in pursuance of any inter-governmental agreement which relates solely to the conservation of fisheries resources, migratory birds or wild animals and which is subject to the requirements of paragraph 1(d) of Article 70. The language of the chapeau of Havana Charter Article 45 refers to members rather than contracting parties, but this does not change the content, because the ITO was meant to be an IGO and the GATT was merely a treaty—hence, both members and contracting parties refer to the signatories to the treaty in issue. Moreover, the language of the chapeau of the Havana Charter illuminates that the exception is a chapter and not the entire agreement. This does, however, not change the content either, because the chapter in issue was the chapter that contains the substantive obligations in the GATT (i.e., most-favored nation treatment, national treatment and the equivalent to GATT Article XI).90 89 See also Steve Charnovitz, Exploring the Environmental Exceptions in GATT Article XX, 25 J. WORLD TRADE 37, 43 (1991) [hereinafter Charnovitz, GATT Article XX]. 90

See Havana Charter Articles 16, 18 and 20.

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5.2 Sub-Section (a) Sub-section (a), which allows for trade barriers “necessary to protect public morals,” is posited, at the time of the drafting, to allow countries to shield themselves from, e.g., obscene literature, photographs and drugs.91 The negotiation records, however, only illuminate one deliberately stated object as falling within the scope of sub-section (a).92 The object in issue was alcohol.93 The issue of alcohol was, moreover, envisaged to be an issue that fell within both sub-sections (a) and (b).94 Charnovitz has, in an extended analysis on the negotiating history, which included analysis of other treaties from the same time period and their understanding of “public” morals, concluded that: “In summary, several treaties regulated trade for moral reasons. Only the liquor treaties explicitly mentioned ‘moral consequences’ or ‘public morals,’ but it seems clear that the international lawmaking regarding slavery, firearms, opium, pornography, and animal cruelty sprung from beliefs about morality and rectitude.”95 5.3 Sub-Section (b) Sub-section (b) was designed to allow measures “necessary to protect human, animal and plant life and health.” This sub-section was originally meant to primarily cover sanitary measures, which are now known as SPS measures.96 The coverage area was probably not defined, because it was “obvious” for the negotiators.97 SPS measures are regulated under the SPS Agreement after the advent of the WTO. The SPS Agreement equally reflects that the area for SPS measures 91

See, e.g., MUHAMMAD, supra note 86, at 171 n.2; BHALA, supra note 87, at 608.

92

See also Charnovitz, Morals, supra note 7, at 704–05.

93

See U.N. Doc E/PC/T/34 (Mar. 5, 1947), 31; E/PC/T/A/PV/25, 21 (July 3,

1947). 94

See E/PC/T/A/PV/25, 21 (July 3, 1947).

95

Charnovitz, Morals, supra note 7, at 713.

See, e.g., E/PC/T/A/PV/30, 13 (July 16, 1947). See also Charnovitz, GATT Article XX, supra note 89, at 44; William Brown, Trade Deals A Blow To The Environment: International Rules Governing Trade Aims To Stamp Out Protectionism, But They May Destroy Third World Attempts To Protect The Environment and Sustainable Development, 128 NEW SCIENTIST (Nov. 10, 1990). 96

97 See Charnovitz, GATT Article XX, supra note 89, at 44, who posits that the discussion of the sanitary measures had been conducted 20 years earlier and the issue was obvious for the negotiators at the time.

Policy Area of GATT Article XX • 219

before this agreement came into force fell within the scope of GATT Article XX(b).98 Sanitary measures do not include any environmental considerations. Sanitary measures seek to protect humans against dangerous food but also to protect the production itself. The protection of the production includes protection of animals—but this is to protect the value of the production and address diseases among the animals in the production. Moreover, the protection extends to plants, which normally are referred to as crops in the area for farm production.99 The issue is, therefore, whether sub-section (b) was intended to exclude environmental concerns. Norway posited that conservation of fisheries could fall within the scope of the sub-section during the negotiations.100 However, apart from this, this author has not recovered any other documents on the issue. Charnovitz posits that the negotiators did not address this issue, because they knew what the scope was—and this had been discussed 20 years earlier at the conclusion of another treaty.101 He, moreover, posits that the understanding most likely was that environmental concerns (i.e., other types of animal protection than in relation to production) were thought to be included in sub-section (b).102 This was equally the U.S. position in U.S.—Tuna II and the U.S.—Shrimp proceedings.103 5.4 Sub-Section (g) Sub-section (g) allows for trade measures “relating to the conservation of exhaustible natural resources.” The discussion on the sub-section primarily surrounded export restrictions.104 In relation to export restrictions, both natural and manufactured 98 See SPS Preamble, which states: “Desiring therefore to elaborate rules for the application of the provisions of GATT A1994 which relate to the use of sanitary or phytosanitary measures, in particular the provisions of Article XX(b) [footnote omitted].” 99

See also SPS Annex A, Article 1.

100

See E/CONF.2/C.5/SR.7, 2–3 (Dec. 12, 1947).

101

See id. at 44.

102

See id. at 45.

See U.S.—Tuna II, supra note 10, at para. 3.29; U.S.—Shrimp Panel Report, supra note 14, at paras. 3.185–3.191. Charnovitz’s conclusions are, moreover, included in the U.S. argument in the U.S.—Shrimp case; see U.S.—Shrimp Panel Report, supra note 14, at para. 3.186. 103

104 See E/PC/T/C.II/50, 4 (Nov. 13, 1946); E/PC/T/C.II/QR/PV/5, 79 (Nov. 18, 1946); E/PC/T/A/PV/25, 30 (July 3, 1947); E/PC/T/A/PV/30, 18 (July 16, 1947).

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products were mentioned.105 The sub-section was intended to cover those resources that are exhaustible in the more traditional sense, i.e., non-living natural resources, such as raw materials and manganese.106 The issue is, therefore, whether the sub-section was also intended to cover those natural resources that are living. When examining the Havana Charter, it appears confusing that this charter included an additional subsection on the protection of fisheries and wildlife. The extra sub-section, which was not transferred to the GATT, reads as follows: taken in pursuance of any inter-governmental agreement, which relates solely to the conservation of fisheries resources, migratory birds or wild animals and which is subject to the requirements of paragraph 1(d) of Article 70.107 Based on the inclusion of this sub-section in the Havana Charter, it could easily be assumed that sub-section (g) was not meant to include living natural resources. This was equally argued by Mexico in the U.S.—Tuna I case, where Mexico stated that the sub-section regarding wildlife was “deliberately not incorporated” into the GATT.108 However, by examining the negotiating history, the opposite could be concluded. The sub-section on wildlife was initially introduced in the New York draft in January–February 1947.109 At a later state, the sub-section on wildlife was transferred into sub-section (g), which at that point read as follows: The provisions of Section C of this Chapter shall not apply to commodity control agreements found by the Organization relate solely to the conservation of [fisheries or wild life or other] exhaustible natural resources[.], such as fisheries or wild life.110 A few days later, it was decided to delete the words regarding fisheries and wildlife:

105

See E/PC/T/C.II/50, 4 (Nov. 13, 1946).

106

See E/PC/T/C.II/QR/PV/5, 79 (Nov. 18, 1946) (Brazil).

107

Havana Charter, sub-section (x) of Article 45.

108

See U.S.—Tuna I, supra note 8, at para. 3.30.

See E/PC/T/34, 43–44 (Mar. 5, 1947) (where the wording of Article 59 originally only included fisheries and wildlife and not migratory birds). 109

110 E/PC/T/147, 29–30 (Aug. 4, 1947). (original underlining and [] as in the draft sub-section).

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Subject to the approval of the Norwegian delegate, it was agreed to delete the examples mentioned in paragraph 3, it being understood that fisheries and wild life were in fact covered by the phrase “conservation of exhaustible natural resources.” If, however, the Norwegian delegate could not accept this decision, it was agreed to conclude the paragraph with the words “including conventions on fisheries.”111 The sub-section on wildlife was, however, put back into the Charter in 1948 (but was notably not transferred into the GATT as an amendment).112 The inclusion of the sub-section in the Havana Charter was done on the suggestion of Norway due to its concern regarding fisheries: The present text might lead to the conclusion that fisheries were either excepted under Article 67, 1(c), relating to the protection of animal life or included under Article 67(3) as exhaustible natural resources. Fisheries might be considered rather as renewable than as exhaustible resources. International fisheries and wildlife conservation agreements were not commodity agreements in the usual sense. They were not concerned with prices or distribution but directed towards the efficient management of the fishery. Fisheries and wildlife agreements were regional and often bilateral in character, and entered into by the interested nations on the basis of biological and oceanographical evidence that the resources were declining.113 The representative from the United Kingdom, interestingly, commented on this by stating that the deletion of the word “exhaustible” in what is now sub-section (g) could suffice.114 The result was nevertheless that the sub-section on wildlife ended up being part of the Havana Charter. On the issue of whether sub-section (g) was envisaged to also include living natural resources, the debate could point in two directions. It could be argued that since the wildlife sub-section in the final analysis was included in the Havana Charter, sub-section (g) was envisaged to cover only non-living natural resources. It could, however, equally be argued that since the sub-section on wildlife at one point was included in the present sub-sec111

E/PC/T/B/SR/27, 14 (Aug. 11, 1947). See also E/PC/T/147, 29–30 (Aug. 4,

1947). 112

See E/CONF.2/C.3/37, 4 (Jan. 28, 1947).

113

E/CONF.2/C.5/SR.7, 2–3 (Dec. 12, 1947).

114

See id. at 3.

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tion (g), and because sub-section (g) was mentioned in relation to Australian merino sheep,115 that sub-section (g) all along was envisaged to include both living and non-living natural resources. It must be noted that although the Havana Charter had a special subsection for wildlife, and although sub-section (g) includes the word “exhaustible,” it may nevertheless not be conclusive evidence for stating that sub-section (g) was only meant to cover those resources that are nonliving. Throughout the ITO negotiations, there have been instances where sub-section (g) was meant to cover living natural resources, as well as nonliving resources. The conclusion is, therefore, that the coverage area can be argued either way—and that the negotiators may not have put any more thoughts on the issue in writing when they decided not to include the wildlife sub-section in the GATT, but those documents have not been recovered—despite many attempts.116 6

SOLVING THE OVERLAP ISSUE: THE PRINCIPLE OF EFFECTIVENESS

One of the suggestions posited in this book is the utilization of the principle of effectiveness in treaty interpretation when analyzing the “policy” test. This is suggested because, by making the principle operational in relation to this test, it encourages a more clear separation between the sub-sections. 6.1 The Principle of Effectiveness The principle of effectiveness can be characterized as a maxim or principle, not directly mentioned in the VCLT, but nevertheless an inherent part of the interpretation—often in connection with the good faith requirement in VCLT Article 31:1.117 The ILC formulated the principle as follows: When a treaty is open to two interpretations one of which does and the other does not enable the treaty to have appropriate effects, good faith and the object and purposes of the treaty demand that the former interpretation should be adopted. Properly limited and applied, the maxim does not call for an “extensive” or “liberal” inter115

See E/PC/T/A/SR/40(1), 2 (Aug. 15, 1947).

See also Charnovitz, GATT Article XX, supra note 89, at 46–47 (who equally reaches the result of certain uncertainties). 116

117 See Lennard, supra note 24, at 55. See also ILC Commentary on the draft VCLT, 2 Y.B. I.L.C. 219 (1966).

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pretation in the sense of an interpretation going beyond what is expressed or necessarily to be implied in the terms of the Treaty. Accordingly, it did not seem to the Commission that there was any need to include a separate provision on this point. Moreover, to do so might encourage attempts to extend the meaning of treaties illegitimately on the basis of the so-called principle of “effective interpretation.”118 The principle was established to be a principle the Appellate Body adhered to in the first case of the WTO system, the U.S.—Gasoline case. In this case, the Appellate Body held that: One of the corollaries of the “general rule of interpretation” in the Vienna Convention is that interpretation must give meaning and effect to all the terms of a treaty. An interpreter is not free to adopt a reading that would result in reducing whole clauses or paragraphs of a treaty to redundancy or inutility.119 The Appellate Body’s version of the principle is essentially that by means of interpretation, it is not allowed to make certain paragraphs or clauses meaningless or superfluous. Moreover, the Appellate Body, in another case, acknowledged that it is not allowed—by means of interpretation—to revise the treaty text, albeit it was not mentioned in relation to the principle of effectiveness: The legitimate expectations of the parties to a treaty are reflected in the language of the treaty itself. The duty of a treaty interpreter is to examine the words of the treaty to determine the intentions of the parties. This should be done in accordance with the princi118

ILC Commentary on the draft VCLT, 2 Y.B. I.L.C. 219 (1966).

119 See U.S.—Gasoline Appellate Body Report, supra note 55, at 23 (footnote omitted; emphasis added). The principle has subsequently been confirmed; see, e.g., Japan— Alcohol Appellate Body Report, supra note 29, at 12–13; Korea—Definitive Safeguard Measure on Certain Dairy Products, Report of the Appellate Body, WT/DS98/AB/R, Dec. 14, 1999, para. 80 [hereinafter Korea—Dairy Appellate Body Report]; Canada— Measures Affecting the Importation of Milk and Exportation of Dairy Products, Report of the Appellate Body, WT/DS103/AB/R, WT/DS113/AB/R, Oct. 13, 1999, para. 133 [hereinafter Canada—Dairy Appellate Body Report]. In the Canada—Diary case, the Appellate Body Report refers to the principle as effet utile, which is a principle developed by the ECJ; see, e.g., Joachim Wolf, The Effet Utile-Principle as a Viable Standard for Protection of Fundamental Rights in the Jurisdiction of the European Court of Justice, 1., available at http://www.ruhr-uni-bochum.de/wolf/dokumente/effutGR.pdf; Ari Afilalo, How Far Francovich? Effective Judicial Protection and Associational Standing to Litigate Diffuse Interests in The European Union, Jean Monnet Working Papers, 1/98, available at http://www.jeanmonnetprogram.org.

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ples of treaty interpretation set out in Article 31 of the Vienna Convention. But these principles of interpretation neither require nor condone the imputation into a treaty of words that are not there or the importation into a treaty of concepts that were not intended.120 In application, the Appellate Body in Japan—Alcohol illuminated its understanding of the principle: “Any other reading of Article III would have the effect of rendering the words of Article III: 1 meaningless, thereby violating the fundamental principle of effectiveness in treaty interpretation.”121 In Korea—Dairy, the reference to the principle of effectiveness in treaty interpretation related also to a harmonious reading of the text: “In light of the interpretive principle of effectiveness, it is the duty of any treaty interpreter to ‘read all applicable provisions of a treaty in a way that gives meaning to all of them, harmoniously’.”122 Lennard posits on this point that: [t]his ‘gloss’ on the principle expresses it over-ambitiously, as compared to the International Law Commission formulation noted above, since it does not recognize the possibility that disharmony between treaty provisions may exist inherently.”123 The ILC formulation as Lennard refers to is the one noted above in this section. On the issue of limits to the utilization of the principle of effectiveness, the ILC put forth: The Court, which has by no means adopted a narrow view of the extent to which it is proper to imply terms in treaties, has nevertheless insisted that there are definite limits to the use which may be made of the principle [of effectiveness in treaty interpretation] for this purpose . . . And it emphasized that to adopt an interpretation which ran counter to the clear meaning of the terms would not be to interpret but to revise the treaty.124

120 India—Patent Protection for Pharmaceutical and Agricultural Chemical Products, Report of the Appellate Body, WT/DS50/AB/R, Dec. 19, 1997, para. 45 [hereinafter India—Mailbox Appellate Body Report]. 121

Japan—Alcohol Appellate Body Report, supra note 29, at p. 19.

122 Korea—Dairy Appellate Body Report, supra note 119, at para. 81 (footnote omitted; emphasis added). 123

Lennard, supra note 24, at 59.

124

ILC Commentary on the draft VCLT, 2 Y.B. I.L.C. 219 (1966) (emphasis added).

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The risk of wrongly applying the principle of effectiveness is also described by Lennard: the goal of “effectiveness” is one to be sought, but one which will have to be treated with some caution in WTO jurisprudence for an additional reason; if the principle is given too large scope it can amount to a broad teleological approach, reading things into the treaty that lend an air of neatness and regularity in pursuit of a perceived object and purpose, but do not flow from its terms and do not represent a good faith, fundamentally textual, interpretation.125 In conclusion, the principle of effectiveness as described in the U.S.— Gasoline case, taken together with the ILC formulations, means that the treaty interpreter, when finding clauses or paragraphs to be redundant or superfluous, must examine whether a different interpretation would give meaning to these clauses or paragraphs. The treaty interpreter must, however, not cure the inherent flaws in the treaty text, which, e.g., leads to overlap or redundancies if this entails a revision of the treaty text. It can be posited that the principle of effectiveness in operation consists of two steps: 1.

2.

The principle of effectiveness must come into consideration when words, clauses or passages are found to be redundant or superfluous. It must be evaluated whether a different type of interpretation exists where the redundancy is cured. This type of interpretation is, however, limited by the notion that the treaty interpreter must not revise the treaty.

Both steps appear to define the operational aspects of the principle of effectiveness. This is an important aspect to understand with regard to solving the overlap issue: interpretation conducted thus far was not in conformity with the principle of effectiveness, because there was no scrutiny into whether a different interpretation of the sub-sections was possible, namely one that would not lead to an overlap of the sub-sections. The result of the interpretation might have been the same, because there might not have been different ways to interpret the clauses or passages in the treaty text. The result was, however, rendered without analyzing whether a different interpretation was available—one that, according

125

Lennard, supra note 24, at 60 (footnote omitted).

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to the principle of effectiveness, would give more meaning to the different clauses or passages of the treaty text. For clarification—on the issue of evolutionary meaning of the words in the U.S.—Shrimp analysis on the “policy” test—it is important to establish that there is nothing inherent in the principle of effectiveness in treaty interpretation, which prevents a more contemporary or evolutionary interpretation of the legal text in issue. The principle of effectiveness only relates to the situations where two or more manners of interpretation exist, and where the manner in which all terms are given meaning is preferable. Whether this is achieved by a more contemporary or evolutionary reading of the text or by other means is not the issue for purposes of the principle of effectiveness. The limit is, however, that the interpreter must not revise the treaty but merely interpret it. Establishing a difference between the two is not easy in abstracto, but it may be possible to establish the difference between revising and interpreting in concreto. 6.2 Applying the Principle to the “Policy” Test Recalling both the ILC and U.S.—Gasoline description of the principle of effectiveness in treaty interpretation, the effect of its utilization in the “policy” test must be established. In a case where two or more sub-sections are invoked, the principle of effectiveness has the effect that a two-step analysis must be initiated. First, the analysis must include an observation of whether more than one sub-section of GATT Article XX applies to the same trade measure.126 If more than one applies, there is an overlap of these sub-sections for this particular trade measure or for this particular policy. Second, the analysis must include probing into whether a different interpretation exists where only one sub-section applies. This analysis is, however, limited by the notion that the treaty interpreter is not allowed to revise the treaty. Hence, it must be analyzed whether the overlap is inherent to the treaty text. In the hypothetical example where the panels or the Appellate Body utilized the inclusion of the principle of effectiveness, the panels and the

126 The terminology “apply” and “fall within the scope” does, in this analysis, mean the same—that a measure falls within the scope of the sub-sections. The issue of “surviving” all the trade tests is an issue of the “subsequent” trade tests and not the “policy” analysis.

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Appellate Body would have to analyze whether one sub-section could apply—among the ones invoked—or whether there is an inherent overlap among the sub-sections for that particular policy. As illuminated in Section 2.2.2, the Appellate Body has not shown any signs of choosing among the sub-sections; and there is thus not guidance in case law as to what this choice will be if the situation should arise. Guidance could be found in the preparatory work for the treaty, which could be used both to confirm a result and to give an indication of whether the drafters envisaged or unintentionally created an inherent overlap among the sub-sections.127 It should, moreover, be noted that an acceptable overlap among the sub-sections should be established before an analysis is made of whether the measure survived the remaining trade tests—meaning that the issue of whether two or more sub-sections could apply to one trade measure is an issue that analytically must take place before entering into the subsequent trade tests in the sub-sections and the chapeau analysis. Any other sequence is not per se evidence that the principle of effectiveness was not utilized, because the issue could be analyzed after it was established that the subsequent trade tests were not met. This, however, would appear to be a backwards sequence of analysis—and perhaps evidence that the principle of effectiveness was not considered initially—but only after it became evident that the analysis of another sub-section became relevant. One could speculate that if the panels and the Appellate Body, by means of utilization of the principle of effectiveness, established a practice to include only one sub-section in its GATT Article XX, this would lead to a preference of sub-section (g), because of its simpler test. This could have the effect that none of the other sub-sections would ever be invoked again in disputes where sub-section (g) was thought to apply. This is nevertheless not possible in reality, because if the panels and the Appellate Body were to start assigning certain policies to certain sub-sections, then they would equally have to decide that certain policies fall outside the scope of some sub-sections. Consequently, the invocation of only sub-section (g) for a measure would be too risky in the event the panels or the Appellate Body, e.g., found the measure to fall within sub-section (b) instead, because if sub-section (b) was not invoked, the entire GATT Article XX analysis would not be possible—in effect eliminating the opportunity to “legalize” an otherwise illegal trade measure. Therefore, respondents would still be eager to invoke several sub-sections in the hope that one of them is the applicable sub-section in order 127

4.4.1.

For the utilization of preparatory work in relation to VCLT Article 32, see Section

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to optimize the chances for justification of their otherwise illegal trade measure. 7

A SPECIAL NOTE ON “MORALS”

Before analyzing the categories of animal protection with and without the utilization of the principle of effectiveness, further analysis of “moral” measures is included at this stage. Moral policies are different than other policies, and they therefore deserve special attention. 7.1 GATT Article XX(a) Sub-section (a) deserves some special attention, because the policies within this sub-section differ dramatically from those in the other sub-sections. The only case where sub-section (a) has ever been invoked in relation to GATT Article XX was in U.S.—Malt Beverages.128 In this case, the United States invoked subsections (a) and (b) as a defense in the event measures by some U.S. states, regarding sale and marketing of beer with high alcohol content, were found to be inconsistent with GATT Article III.129 The United States argued that “States had legitimate interests in protecting human life and health and public morals that necessitated measures to discourage the consumption of beer with an alcohol content greater than 3.2 per cent by weight.”130 The measure was, however, not inconsistent with GATT Article III, which led to the panel not opining on sub-section (a).131 7.2 GATS Article XIV(a) In U.S.—Gambling, the Appellate Body independently analyzed the scope of the sub-section but upheld the panel’s analysis—as illuminated in Chapter 7, Section 4.1.1. It should be recalled that GATS Article XIV(a) also includes the policy area “public order.” The panel started out illuminating the difficulties regarding interpreting the moral sub-section: We are well aware that there may be sensitivities associated with the interpretation of the terms “public morals” and “public order” in the context of Article XIV. In the Panel’s view, the content of these concepts for Members can vary in time and space, depending 128 See United States—Measures Affecting Alcoholic and Malt Beverages, adopted June 19, 1992, BISD 39S/206 [hereinafter U.S.—Malt Beverages]. 129

See id. at para. 3.125.

130

Id. at para. 3.125.

131

See id. at para. 5.77.

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upon a range of factors, including prevailing social, cultural, ethical and religious values. Further, the Appellate Body has stated on several occasions that Members, in applying similar societal concepts, have the right to determine the level of protection that they consider appropriate. Although these Appellate Body statements were made in the context of Article XX of the GATT 1994, it is our view that such statements are also valid with respect to the protection of public morals and public order under Article XVI of the GATS. More particularly, Members should be given some scope to define and apply for themselves the concepts of “public morals” and “public order” in their respective territories, according to their own systems and scales of values.132 The panel defined “public morals”: “[T]he term . . . denotes standards of right and wrong conduct maintained by or on behalf of a community or nation.”133 The panel also explains that “public morals” are different than “public order”: Based on the dictionary definitions referred to above and taking into account the clarification added by the drafters of the GATS in footnote 5, we believe that ‘public morals’ and ‘public order’ are two distinct concepts under Article XIV(a) of the GATS. Nevertheless, to the extent that both concepts seek to protect largely similar values, some overlap may exist. For example, in this case, it could be argued that the prevention of underage gambling and the protection of pathological gamblers relates to public morals, while the fight against organized crime is rather a matter of public order. The prevention of money laundering and of fraud schemes could arguably relate to both public morals and public order. However, we are of the view that, in this dispute, it is not necessary to qualify various policy considerations relied upon by the United States as relating either to “public morals” or to “public order.”134 The panel thereafter cites to various historical inclusions of prohibition of gambling in the notion of “public morals” and concludes that prohibition of gambling and betting services falls within the policy scope of the sub-section.135 132

U.S.—Gambling Panel Report, supra note 64, at para. 6.461 (footnote omitted).

133

Id. at para. 6.465.

134

Id. at paras. 6.468–6.469 (emphasis added).

135

See id. at paras. 6.470–6.474.

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7.3 Defining a Coverage Area Charnovitz posits that these policies of public morals could be “at least . . . slavery, weapons, narcotics, liquor, pornography, religion, compulsory labor, and animal welfare.”136 Howse, has posited that child labor and denial of basic workers’ rights may fall within sub-section (a).137 For purposes of this book, it is primarily the issues relating to animal welfare and environmental protection of animals that are important. That animal welfare protection is an issue of public morals is probably safe to assume;138 this was also noted by Australia in the U.S.—Tuna I case: “Article XX (a) . . . could justify measures regarding inhumane treatment of animals. . . .”139 This assumption alone does not solve all issues in relation to sub-section (a), and a deeper analysis into the issue is necessary. Clearly, “public morals” is one of those terms that has a different content in the 21st century than in the 1940s. If, however, an evolutionary interpretation should be utilized, this would mean that the meaning of the term “public morals,” at the time of the drafting, should be different than the meaning today. This author contends that the meaning of the term “public morals” has not changed, but the content of it has changed along with the evolution of the society in the last 60 years. Hence, the term does not necessarily benefit from an evolutionary style of interpretation. Rather, it is beneficial to understand what policies are considered within the realm of public morals in today’s world. The challenge of deciding which policies are within the realm of public morals is that not all moral issues are laid down as international soft or hard law, such as issues relating to sustainable development or environmental protection. Certain policies in this area are inherently unilaterally based, compared to those relating to, e.g., the environment, and they also stem from a different point of view; they stem from morals that are not codified in any international moral agreement. This can be illuminated by examples. Issues of public morals on, e.g., narcotics are of international concern, which was illuminated in the EC—GSP case,140 whereas, e.g., issues 136

Charnovitz, Morals, supra note 7, at 729–30.

Robert Howse, The World Trade Organization and the Protection of Workers’ Rights, 3 J. SMALL & EMERGING BUS. L. 131 (1999). 137

138 See also Peter Stevenson, The World Trade Organization Rules: A Legal Analysis of Their Adverse Impact on Animal Welfare, 8 ANIMAL L. 107, 121–22, 138 (2002). 139

See U.S.—Tuna I, supra note 8, at para. 4.4.

140

Where the EC and the panel put emphasis on soft law documents adopted by the

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of pornography seem to be strictly an internal and domestic issue, which differs in approach from country to country.141 The EC—GSP case could have illuminated certain issues relating to the analysis of how the panels and the Appellate Body would consider the issue of drugs. This case is nevertheless not utilized, because it used, what is perceived by this author to be, a “wrong” “policy” test.142 On the issue of drugs, it should however be noted that clearly drugs are dangerous to humans, but it could nevertheless be argued that prohibiting or legalizing drugs is also an issue of moral and public morals, because it is a moral choice to decide whether drugs should be prohibited and combated or whether the citizens must take full responsibility for their own health—or whether it is considered immoral per se to use drugs. This becomes quite evident when comparing the issue to, e.g., smoking cigarettes, which everyone knows are dangerous, but they are nevertheless not prohibited in any country this author is familiar with. The important issue thus remains, what is the scope for sub-section (a)? Which policies can be considered to be policies to protect the public morals? It could potentially pose analytical problems if all measures in the final analysis can be called moral. These analytical difficulties surrounding sub-section (a) are, inter alia, analyzed below. 7.4 Are All Policies Moral Policies? The first analytical issue in relation to sub-section (a) is whether all policies relating to human health, environmental protection and animal welfare protection can be said to—in the final analysis—be moral polices. Utilizing an example of polices already understood in this book, the issue can be illuminated more specifically. This hypothetical example is a scenario where the member, which has enacted an illegal trade measure aimed at conservation of living natural resources, seeks to justify it under both sub-sections (a) and (g).

United Nations. See, e.g., European Communities—Conditions for the Granting of Tariff Preferences to Developing Countries, Report of the Panel, Dec. 1, 2003, WT/DS246/R, at paras. 7.203–7.206 [hereinafter EC—GSP Panel Report]. 141 See also Christoph T. Feddersen, Focusing on Substantive Law in International Economic Relations: The Public Morals of GATT’s Article XX(a) and “Conventional” Rules of Interpretation [hereinafter GATT’s Article XX(a)], 7 MINN. J. GLOBAL TRADE 75, 113 (1998). 142

See Chapter 7.

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Conservation of living natural resources is not per se a moral issue for purposes of sub-section (a) on public morals, unless the party invoking the sub-section argues that apart from the rules laid down in international environmental law (which illuminates the policy as being one that is regulated within the realm of this sub-system of jus gentium), this particular country also views conservation of natural resources to be a moral issue. By arguing that a policy, which is already allocated outside the realm of pure morals and is allocated under a different label, such as the environment, nevertheless also is a moral policy, difficulties arise. On the issue of whether most policies relating to health and environment can be traced to moral values, two points must be noted. Firstly, it must be noted that in the area of environmental protection, the policies stem from anthropocentric considerations.143 Based on this fundamental understanding, it can be argued that it is a moral and manmade decision to care for, e.g., biodiversity—in particular when recalling that biodiversity is limited to that biodiversity man has decided he likes, which does not extend to, e.g., HIV. Secondly, it can be argued that in relation to the environment, the politicians, who decided the rules, must at some level have been guided by the issue of his or her personal morally founded ideas and visions. The politicians’ morals may nevertheless not be representative of the prevailing public moral in the country. The argument, however, that the politicians are not “in tune” with the population is inherently not a valid argument, because the WTO is an IGO with sovereign countries as members—democratic as well as non-democratic countries. How sovereign countries conduct their policymaking within the borders is not for the WTO to second guess and not for a panel or the Appellate Body either. The WTO is a trade organization, not a democracy organization. 7.5 Morals Cannot Be Screened for Their Validity When analyzing moral policies, the problem is how the panels and the Appellate Body can screen policies to verify that they indeed are moral policies. It is therefore important to understand how moral polices differ from other more scientific policies. The difference between moral measures and other measures, which are laid down in soft or hard law agreements, is that it appears that there is no manner in which a moral policy can be second guessed by the panels or 143

See Chapter 4, Section 5.1.1.

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the Appellate Body, because the policy in most cases is a country- or regionspecific policy. This can be illuminated by the example of a country that decides to ban pornographic materials. This policy cannot be claimed to be unimportant or disproportionate, because there is no way to verify whether this policy indeed is important for the public morals in that particular country. This can equally be said to be the case for the determination of a sevenhour maximum limit for transport of live animals destined for slaughter and the refusal to buy any meat from animals transported longer; for the refusal to import tuna fish, which has been caught in a manner that is dangerous to dolphins; for the refusal to buy items that stem from marine mammals; for the refusal to buy non-Halal and non-Kosher items, etc. When verification is inherently not possible, the moral measure must hence be accepted as a moral measure without a screening. Screening of the validity of policies to protect human health and the environment is, however, an inherent part of the “policy” test as it is today—albeit it is being conducted implicitly. In, e.g., Thailand—Cigarettes and EC—Asbestos, it was analyzed whether cigarettes and asbestos were dangerous to humans. The Panel then defined the issues which arose under this provision. In agreement with the parties to the dispute and the expert from the WHO, the Panel accepted that smoking constituted a serious risk to human health and that consequently measures designed to reduce the consumption of cigarettes fell within the scope of Article XX(b).144 [A]ll four of the scientific experts consulted by the Panel concurred that chrysotile asbestos fibres, and chrysotile-cement products, constitute a risk to human health, and the Panel’s conclusions on this point are faithful to the views expressed by the four scientists. In addition, the Panel noted that the carcinogenic nature of chrysotile asbestos fibres has been acknowledged since 1977 by international bodies, such as the International Agency for Research on Cancer and the World Health Organization. In these circumstances, we find that the Panel remained well within the bounds of its discretion in finding that chrysotile-cement products pose a risk to human life or health.145 144

Thailand—Cigarettes, supra note 3, at para. 73 (emphasis added).

145

European Communities—Measures Affecting Asbestos and Asbestos-Containing

234 • The WTO, Animals and PPMs

In U.S.—Shrimp, the policy to protect endangered migratory species was also verified to be recognized policy in international environmental law. Given the recent acknowledgement by the international community of the importance of concerted bilateral or multilateral action to protect living natural resources, and recalling the explicit recognition by WTO Members of the objective of sustainable development in the preamble of the WTO Agreement, we believe it is too late in the day to suppose that Article XX(g) of the GATT 1994 may be read as referring only to the conservation of exhaustible mineral or other non-living natural resources. . . . The exhaustibility of sea turtles would in fact have been very difficult to controvert since all of the seven recognized species of sea turtles are today listed in Appendix 1 of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”).146 When screening of a moral policy is not possible—and all measures relating to human health and the environment can be argued to arise out of morals—the utilization of sub-section (a) poses difficulties, which may not be solvable. Sub-section (a), in this manner, “destroys” the mechanism by which human health and environmental measures otherwise can be screened for its legitimacy by the utilization of other instruments in international law. This screening would not be “allowed,” if the measure was analyzed under sub-section (a) and was labeled moral.147 The issue is thus two fold: (1) it could be argued that in the final analysis all measures relating to health and the environment arose out of morals; and (2) moral measures cannot be screened for their value in any other instrument or by any other IGO. For those reasons, solutions by which the scope for sub-section (a) could be narrowed down are analyzed below. It is important to avoid opening a too broad scope for sub-section (a), which could potentially lead to a slippery slope, and this may very well be the reason this sub-section has only been invoked once and never been analyzed by any panels or the Appellate Body. It should be clarified that these analyses are based on the underProducts, Report of the Appellate Body, Mar. 12, 2001, WT/DS135/AB/R, at para. 162 [hereinafter EC—Asbestos Appellate Body Report]. 146 U.S.—Shrimp Appellate Body Report, supra note 18, at paras. 131–132 (footnote omitted). 147

See also discussion of the precautionary principle in Section 8.3.

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standing that the subsequent trade tests are not informed by the policy pursued; i.e., the trade tests under each sub-section, including the chapeau analysis, are analyzed with focus only on the trade effect where the policy of the measure is accepted per se. The issue of having the trade tests being informed by the policy in issue is, however, elaborated upon later. 7.6 Solution to Distinguishing Moral Measures from Other Measures One solution could be to determine that if a policy area generally is labeled under a different heading, such as public health or the environment, sub-section (a) cannot be utilized as an exception on public morals. This is a solution that utilizes the categorization of measures as e.g. human health or the environment, as they would be categorized outside the WTO system, and not the GATT Article XX categorization. Utilizing this idea, many policies will fall outside the scope of sub-section (a), and its analytical problems are thus diminished to a smaller group of measures that can be called moral. This would consequently mean that in a case involving conservation of living natural resources, the policy would be labeled as an environmental policy and thus not an issue of public morals. There are, however, difficulties with this approach. Assuming the policy on conservation of living natural resources was a policy to protect a species that was neither endangered nor migratory, and hence not an endangered migratory species either, this species would not be protected under international environmental law. The argument could be made that the policy was one of conservation of living natural resources as it was perceived by the citizens in that country—and that this was an issue of public morals in that country. The policy is thus difficult to label. Moreover, the issue touches upon another issue; higher standards than those laid down in MEAs are allowed by the MEAs, such as CITES Article XIV:1. Another example that illuminates the difficulties surrounding this approach is the example of alcohol. In the hypothetical scenario where a law prohibits alcohol in the country, including production and imports thereof, this law may be categorized as a health law in the country but may nevertheless, in the final analysis, be an issue of public morals if, e.g., an argument of religion is brought up. There is, however, a solution to this issue—inspired by the precautionary principle. The principles laid down in the precautionary principle—as illuminated in Rio Declaration Principle 15:

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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 costeffective measures to prevent environmental degradation. [emphasis added]. The inspiration drawn from the functioning of the precautionary principle is that in order to take a measure beyond those provided for in international standards, there must be some kind of a risk assessment. A risk assessment must stem from scientific evidence, albeit this may be imperfect. Therefore, if a risk to either human health or to a species (i.e., not a specimen issue) can be presented in either conclusive or inconclusive scientific material, the issues can safely be labeled as either environmental or human health. This type of analysis is equally recognized in the SPS Agreement, where SPS Article 5.7 reads as follows: 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 [emphasis added]. Therefore, when a country goes beyond what can be determined by scientific evidence, those measures could be argued to be moral—regardless what the country labels it to be. Conversely, if a country labels a measure as a moral measure, but it is in fact a health or environmental measure, this measure could be argued to be within the definition of human health or environmental protection, regardless what the country labels it to be. The effect of this approach is that measures enacted to protect the environment or human health only can be accepted as such, if they are enacted on the basis of scientific evidence—and if the evidence is insufficient, a precautionary measure is acceptable. Consequently, members seeking to enact a measure to protect, e.g., biodiversity without scientific data, therefore, would not be able to justify this policy in the “policy” test. Or— as was the case in the EC—Hormones case—a measure taken pursuant to scientific evidence, which shows no risk associated with hormone-treated beef, is not acceptable.148 Measures enacted without scientific evidence would 148

See e.g., EC—Hormones Appellate Body Report, supra note 45, at paras. 120, 200,

Policy Area of GATT Article XX • 237

appear to be protectionist per se, and, in this manner, the “policy” test can function as a screening mechanism to separate those measures that are enacted on the basis of an altruistic policy and those that are protectionist. Clearly, this would mean that the “policy” test would function to screen “scientific” policies, such as environment and human health policies, but not those that are “moral.” The “moral” measures would be a distinct category of measures in the “non-scientific” area. By determining this difference in the “policy” analysis, the remaining trade tests can easily be informed by the policy choice of the measure. 7.7 The Structure of GATT Article XX The idea above illuminated how panels and the Appellate Body could distinguish between moral and non-moral issues. The weakness with this approach is, however, the structure of GATT Article XX, which is antiquated and does not include a special sub-section for “environment.” This means that, albeit a measure is categorized as moral through an assessment of whether the measure is based on scientific evidence or not, this particular measure may fall within several sub-sections of the GATT. An example of this can be protection of dolphins, because they are sweet. Textually, this measure could fall within sub-sections (a), (b) and (g), unless Charnovitz’s notion of directing a measure to the sub-section it falls most squarely within is adopted. The most organized way to do it would be if the panels deferred all moral measures to sub-section (a) and the rest to sub-setions (b) and (g). However, if this approach is not adopted, it is not a disaster. Even if a case arises surrounding protection of dolphins, because they are sweet, and this measure is analyzed under, e.g., sub-section (g), the analysis could still reflect that the measure is a moral measure. While it would be more “organized” to defer all moral measures to sub-section (a), it is nevertheless not necessary, as long as the policy informs the remaining trade tests. The problem is, thus, not so much inherent in sub-section (a) but more to the policies that are claimed to be moral. They pose the same analytical problems, regardless what sub-section they fall within. 7.8 Value Judgment in the “Policy” Test The official line from the WTO Secretariat is that value judgments on policies pursued for purposes of GATT Article XX do not take place in the 203, 206. See also Philippe Sands, Sustainable Development and International Law, in ENVILAW, THE ECONOMY, AND SUSTAINABLE DEVELOPMENT 369, 381–87 (Richard L. Revesz et al. eds., 2000). RONMENTAL

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analysis of the exception. This is illuminated in its note on GATT Article XX: “None of the Appellate Body and panel reports questioned the environmental or health policy choices made by governments. Already in the US—Tuna (Mexico) case, the panel observed that it was the measure and not the policy goal that had to meet the requirements under Article XX.”149 The former director general of the WTO, Renato Ruggeiro, equally suggested this was the case in an official speech: Subject to the basic requirement of non-discrimination, WTO rules place no constraint on the policy choices available to a country to protect its own environment or health standards against damage either from domestic production or from the consumption of domestically produced of imported products.150 The panel in the U.S.—Tuna I case opined on the issue that: “The Panel further noted that Article XX (g) allows each contracting party to adopt its own conservation policies. The conditions set out in Article XX (g) . . . refer to the trade measure . . . not, however, to the conservation policies.151 Recalling also how the panel in the U.S.—Gasoline case defined the necessity test of sub-section (b): The Panel noted that it was not the necessity of the policy goal that was to be examined, but whether or not it was necessary that imported gasoline be effectively prevented from benefitting [sic] from as favourable sales conditions as were afforded by an individual baseline tied to the producer of a product. It was the task of the Panel to address whether these inconsistent measures were necessary to achieve the policy goal under Article XX (b).152 Nor do the panels or Appellate Body interfere in the level of protection. In EC—Asbestos, the Appellate Body opined that: As to Canada’s third argument, relating to the level of protection, we note that it is undisputed that WTO Members have the right to determine the level of protection of health that they consider 149 GATT/WTO Dispute Settlement Practice Relating to GATT Article XX, Paragraphs (b), (d) and (g), WT/CTE/W/203, at para. 16 [hereinafter CTE note]. 150 Renato Ruggiero, A Shared Responsibility: Global Policy Coherence For Our Global Age, Speech delivered in Bonn, Dec. 9, 1997, available at http://www.wto.org. 151

U.S.—Tuna I, supra note 8, at para. 5.32 (emphasis added).

152

U.S.—Gasoline Panel Report, supra note 12, at para. 6.22.

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appropriate in a given situation. France has determined . . . that the chosen level of health protection by France is a ‘halt’ to the spread of EC—Asbestos-related health risks. . . . Accordingly, it seems to us perfectly legitimate for a Member to seek to halt the spread of a highly risky product while allowing the use of a less risky product in its place. In short, we do not agree with Canada’s third argument.153 It is, however, a truth with modification to posit that there is no value judgment in the GATT Article XX analysis; the value judgment is, however, not the “policy” test. 7.9 Value Test to Inform the Subsequent Trade Tests The value judgment or value test was suggested for two reasons. Firstly, the value judgment should establish whether a policy is indeed an animal welfare policy or an environmental policy. Whether this entails a categorization under sub-section (a) vis-à-vis the two other sub-sections is another problem, which ideally should be solved by amending or rewriting GATT Article XX into one containing the word “environment” in one sub-section and “moral” in another. Under the current version of GATT Article XX, it is possible to analyze animal welfare measures under sub-sections (b) and (g),154 and if this approach is chosen, the panels and the Appellate Body should recognize, e.g., by means of a value judgment, whether the policy is one of animal welfare or one of environment. Secondly, the value judgment should be used as a means of curbing the justification (i.e., the acceptance under GATT Article XX) of trade barriers stemming from moral measures. One suggestion is to differentiate the subsequent trade tests based on the importance of the policy—as judged by the panels and the Appellate Body. While this is an uncomfortable situation to put panelists and Appellate Body members in, it may nevertheless be the only option that exists—unless the membership takes political steps to either amend or interpret GATT Article XX and takes the political decision of which policies are acceptable and which are less and so on. On the issue of distinguishing among the sub-sections by including a value judgment in the “policy” analysis, it is important to realize that value judgment already takes place in the GATT Article XX analysis. This is, e.g., evidenced by the Appellate Body in EC—Asbestos: 153 EC—Asbestos Appellate Body Report, supra note 145, at para. 168 (emphasis in original). 154

See Section 8.

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“[t]he more vital or important [the] common interests or values” pursued, the easier it would be to accept as “necessary” measures designed to achieve those ends. In this case, the objective pursued by the measure is the preservation of human life and health through the elimination, or reduction, of the well-known, and lifethreatening, health risks posed by asbestos fibres.155 The Appellate Body in EC—Asbestos referenced its focus on the vital or important value to its decision in Korea—Beef, where the Appellate Body had opined on this matter in relation to interpretation: It seems to us that a treaty interpreter assessing a measure claimed to be necessary to secure compliance of a WTO-consistent law or regulation may, in appropriate cases, take into account the relative importance of the common interests or values that the law or regulation to be enforced is intended to protect.156 The utilization of the value and importance of the policy to inform the remaining trade tests appears to be a hidden proportionality test. It is thus not impossible to conduct a value judgment on the policies invoked in relation to the different sub-sections of GATT Article XX. This would, e.g., mean that in relation to a policy to conserve living natural resources, which are not endangered, the Appellate Body would have more room to maneuver to decide that the subsequent trade tests under, e.g., sub-section (a) would be different than had the measure been decided under sub-section (b) and solve the issue of the identical trade tests in the sub-sections. Moreover, it would give an option to differentiate among policies in relation to the subsequent trade tests; i.e., protection of biodiversity and religion could be easier to protect than, e.g., protection of dolphins, depending on the value judgment made by the panelists and the membership. On the issue of value judgment in relation to differentiating the subsequent trade test depending on the value of the policy, it is important to understand that a measure can have different directions, which cuts to the heart of in which manner other countries are affected by the measure. This is analyzed in Chapter 9.

155 EC—Asbestos Appellate Body Report, supra note 145, at para. 172 (emphasis added). 156 See Korea—Beef Appellate Body Report, supra note 6, at para. 162 (emphasis added).

Policy Area of GATT Article XX • 241

The primary reason to include the evaluation of the value of the policy in the “policy” test, instead of having a value judgment implicitly in the subsequent trade tests, is to ensure transparency and consistency, which is an important aspect of the legitimacy of the DSM of the WTO in relation to adjudication of trade measures involving politically sensitive non-trade topics. 8

CATEGORIES OF ANIMAL PROTECTION

The analyses in this chapter have now reached the stage where the principle of effectiveness can become operational on the chosen categories of animal protection included in this book. The following categories and examples serve to illuminate which subsections potentially could apply simultaneously and which sub-sections by means of interpretation could be argued not to apply in the event the panels and the Appellate Body wish to have less or only one sub-section apply to each trade measure. 8.1 Conservation of Living Natural Resources As illuminated in Chapter 4, animals are living natural resources, and conservation thereof is different than conservation of non-living natural resources.157 It should, moreover, be recalled that environmental protection of animals is understood, in this book, to be only species protection, i.e., protection of endangered species. Conservation of living natural resources seems to pose no analytical problems in relation to sub-section (b), where case law equally has shown no hesitation with regard to including them under this sub-section in relation to “animal life or health.” Recall that conservation of dolphins and sea turtles has been found to fall within the scope of sub-section (b). Conservation of living natural resources has equally been accepted as a policy under sub-section (g) in all cases thus far, and it does not pose any problems to designate conservation of living natural resources as a policy falling within the scope of the sub-section. In addition to sub-sections (b) and (g), sub-section (a) may very well also be applicable if the measure is argued to be a moral policy of the member enacting and maintaining the trade measure. But this sub-section would be eliminated if the policy was not purely on animal welfare by the utilization of the principles of the precautionary principle as it is understood in SPS Article 5.7. 157

See Chapter 4, Section 3.

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It must therefore be concluded that conservation of living natural resources potentially could fall within the scope of all three sub-sections. This could be illustrated as a 100-percent overlap of sub-sections—utilizing the same boxes as above: Measures in Violation of the Substantive Obligations Under the GATT

Policies for sub-sections (a), (b) and (g)

8.1.1

Sub-Section (b) or (g)?

When analyzing whether sub-section (b) or (g) should be the applicable sub-section, this is based on a notion that it is possible to find an interpretation that results in only one applicable sub-section. There are, however, situations where an overlap is in conformity with the principle of effectiveness. This special situation is analyzed first, i.e., whether the negotiation records and case law reveals an overlap among sub-sections (b) and (g) for conservation of living natural resources. 8.1.1.1 Inherent Overlap in the Treaty Text Among Sub-Sections (b) and (g) The analysis, in Section 6.4, of the preparatory work of the Havana Charter might evidence an overlap for conservation of living natural resources—recall that both sub-sections (b) and (g) could be understood to encompass species protection from the preparatory work. A textual interpretation reaching the same result could be confirmed by the negotiation records, utilizing VCLT Article 32—or the interpretation might be based on VCLT Article 32, because the VCLT Article 31 resulted in an ambiguous result. Curiously, the Appellate Body in U.S.—Shrimp held that its interpretation of finding living natural resources to fall within the scope of sub-section (g) was in conformity with the principle of effectiveness without expressing why. Recall, from Section 4.3, that by overlooking the two steps

Policy Area of GATT Article XX • 243

in the principle of effectiveness, this book did not find the analysis to be sufficient—albeit the result could be argued to be correct following the argumentation set forth in this analysis. In other words, this book posits that the Appellate Body in that case did not make an analysis of the overlap among the two sub-sections, and it did not argue conformity with the principle of effectiveness in relation to overlap of two sub-sections based on an inherent overlap in the text. The Appellate Body did in fact not explain why its interpretation on the inclusion of living natural resources was in conformity with the principle of effectiveness: Given the recent acknowledgement by the international community of the importance of concerted bilateral or multilateral action to protect living natural resources, and recalling the explicit recognition by WTO Members of the objective of sustainable development in the preamble of the WTO Agreement, we believe it is too late in the day to suppose that Article XX(g) of the GATT 1994 may be read as referring only to the conservation of exhaustible mineral or other non-living natural resources. Moreover, two adopted GATT 1947 panel reports previously found fish to be an “exhaustible natural resource” within the meaning of Article XX(g). We hold that, in line with the principle of effectiveness in treaty interpretation, measures to conserve exhaustible natural resources, whether living or non-living, may fall within Article XX (g).158 It should, moreover, be noted that the United States did not argue conformity with the principle of effectiveness in the U.S.—Shrimp panel proceedings. The United States referenced extensive negotiation history indicating that conservation of living natural resources fell within the scope of both sub-sections. Instead of arguing that overlap among sub-sections was in conformity with the principle of effectiveness, if this overlap was inherent to the text, the United States merely noted that an overlap did not render sub-sections meaningless.159 However, even if it has been concluded that it can be argued that an inherent overlap among sub-sections (b) and (g) exists in the treaty text, and having confirmed that in the negotiation records, this does, however, not mean that the treaty interpreter is precluded from reaching a different 158 U.S.—Shrimp Appellate Body Report, supra note 18, at para. 131 (footnotes omitted; emphasis in original). 159

See U.S.—Shrimp Panel Report, supra note 14, at para. 3.244.

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result. This is, in particular, evident when considering the ambiguity in the negotiation records, which may evidence that such overlap was unintended or not analyzed further by the treaty negotiators. Therefore, if an overlap can be prevented by a VCLT Article 31 interpretation, this result would probably also be correct—unless the interpretation was to go so far as to revise the treaty and, e.g., read different terms into the treaty. The following is an analysis of whether it could also be argued that subsection (g) only applies to those measures taken to conserve non-living natural resources. 8.1.1.2 Analysis and Case Law on Sub-Section (g) In the analysis focused on choosing between sub-sections (b) and (g), the focus is largely on sub-section (g)—and whether this sub-section should only relate to those natural resources that are non-living. Sub-section (b) on “animal life or health” textually includes conservation of animals. Moreover, the analysis of the negotiation records lead in Section 5.3 to the result that environmental protection probably was not excluded from the scope of sub-section (b). Arguing that sub-section (b) does not apply to the conservation of living natural resources would therefore be difficult both textually and with reference to the negotiation records—even in the light that sub-section (g) applies. Textually, sub-section (g) is easier to find not to be applicable for the conservation of living natural resources—and more so in the light that subsection (b) textually does apply. As mentioned before, it is unclear whether the preparatory work reveals an exclusion of those natural resources that are living.160 But if a textual interpretation leads to an exclusion of the living natural resources, then the result does not need to be confirmed by the preparatory work as provided for in VCLT Article 32. And in the event the treaty interpreter should wish to confirm the result in the negotiation records, they could be argued to be inconclusive. The issue surrounds whether the word “exhaustible” is to be given independent meaning. It could be argued that the sub-section should only relate to those natural resources that are non-living. This point is also noted in case law. As illuminated in Chapter 7, Section 4.1.3, the first case to analyze the meaning of the policies included in Article XX (g), i.e., the scope of subsection (g), was the U.S.—Canada—Tuna case from 1981. 160

See Section 5.4.

Policy Area of GATT Article XX • 245

The policy of the measure in issue was conservation of tuna fish, and the analysis of whether fish stocks were indeed to be considered an “exhaustible natural resource” was predominantly based on the U.S. position, which did not mention the possibility that living natural resources might not per se be an exhaustible natural resource. The U.S. representative argued “that the first element in showing the measures were justified under Article XX (g) was that the subject was an exhaustible natural resource. In this respect, there was little question that tuna stocks were potentially subject to over-exploitation and exhaustion.”161 The Canadian position was equally that tuna was an exhaustible natural resource. The panel did, however, not make any statements regarding that a policy had to fall within the “scope” of a sub-section, it merely noted that both parties found the policy to be conservation of an “exhaustible natural resource.”162 In the Canada—Herring—Salmon case, the scenario was almost identical to that of the U.S.—Canada—Tuna case. In Canada—Herring—Salmon, the representative of Canada did not even question that fish were an “exhaustible natural resource,” but went straight to stating that: “salmon and herring were ‘exhaustible natural resources’ in the sense of Article XX (g). Both were in need of conservation.”163 The representative from the United States did not question it either, and neither did the panel.164 The first signs of objections to including living natural resources in subsection (g) arose in the U.S.—Tuna I case. In that case, Mexico argued that the policy of conservation of dolphins was not a policy falling within the scope of sub-section (g). Mexico included references to the fact that the Havana Charter included a special sub-section for fisheries, migratory birds and wild animals, which was “deliberately not incorporated” into the GATT.165 Mexico argued that the negotiating history revealed that sub-section (g) “did not include fisheries and fishery products, nor in fact any living being. By definition, exhaustible natural resources were resources, which once taken or utilized cannot be renewed . . . Living beings, which can reproduce themselves, could not within this definition of ‘exhaus161 United States—Prohibition of Imports of Tuna and Tuna Products From Canada, adopted Feb. 22, 1982, BISD 29S/91, at para. 3.8 [hereinafter U.S.—Canada—Tuna]. 162

See id. at para. 4.9.

163

See id. at para. 3.27.

164

See id. at para. 3.29, 4.4.

165

See U.S.—Tuna I, supra note 8, at para. 3.30.

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tible’.”166 While these arguments were put forth, this book has illuminated that the negotiation records were not as conclusive as argued by Mexico. Mexico also argued that by including fisheries conservation in Article XX, this would be a new “obligation,” which only the contracting parties were empowered to add.167 The Mexican argument probably meant “conditional right” instead of obligation, because no obligation is laid down in Article XX.168 Moreover, Mexico considered the mutual acceptance of the policy of living resources, within the sub-section in U.S.—Canada—Tuna, as being only relevant for that particular dispute.169 The panel did, however, not conduct any kind of “policy” test, but rather accepted both sub-sections without taking notice of the Mexican arguments on the issues.170 In U.S.—Shrimp, the issue arose again. India, Pakistan and Thailand argued the issue along the lines as in the Tuna case, and, inter alia, stated: A reasonable interpretation of the term “exhaustible” was that it referred to finite resources, such as minerals, rather than biological or renewable resources. Such finite resources were exhaustible because there was a limited supply which could and would be depleted unit for unit as the resources were consumed. If, however, all natural resources were considered to be “exhaustible,” the term “exhaustible” would be rendered superfluous. Such a result was inconsistent with general rules of treaty interpretation.171 This argument seems like the most convincing in the debate. Clearly, the principle of effectiveness, as formulated by the Appellate Body in U.S.—Gasoline, does not allow for words to become superfluous—hence, it can easily be argued that the term “exhaustible” means that only finite resources can fall within the scope of sub-section (g).172 This argument is particularly strong, if the treaty interpreter wishes to distinguish between sub-sections (b) and (g) for purposes of analysis of conservation of living natural resources. 166

Id. at para. 3.43.

167

See id. at para. 3.43.

168

See Chapter 2, Section 2 on the definition of rights and obligations.

169

See U.S.—Tuna I, supra note 8, at para. 3.43.

170

See id. paras. 5.24, 5.30

171

U.S.—Shrimp Panel Report, supra note 14, at para. 3.237 (footnote omitted).

172

Recalling also that the delegate from the United Kingdom suggested deleting the

Policy Area of GATT Article XX • 247

On the issue of the inclusion of living natural resources in previous cases, India, Pakistan and Thailand argued that: the conclusion in the US—Gasoline case that Article XX(g) applied to the measure at issue notwithstanding the fact that clean air was “renewable,” was based on misplaced reliance on two prior panel reports. In Salmon/Herring, the meaning of the term “exhaustible” was not at issue; rather, both parties had agreed that salmon and herring were exhaustible natural resources.173 The United States responded by stating that the species of sea turtles in issue were on CITES Appendix 1 and that given the fact that they could be extinct, they were also exhaustible.174 In relation to non-living natural resources, the United States stated that: “Once a species was extinct, it was gone forever, just as oil from a well or ore from a mine.”175 In conclusion, if it was to be decided that living natural resources should only fall within one of the sub-sections, the weakest area in the current interpretation of sub-sections (b) and (g) is the word “exhaustible” and the Appellate Body’s misunderstood evolutionary understanding of the term “natural resources.”176 Moreover, the reliance on case law, which has reached the result of including living natural resources in sub-section (g) by not engaging in an analysis thereof or perhaps a doubtful analysis, should not prevent future panels from reaching a different result stemming from an in-depth analysis in a system where there is no de jure stare decisis. However, as noted above, living natural resources may fall within both sub-sections in conformity with the principle of effectiveness—if it is established that the overlap is inherent to the text. This was not the case in the U.S.—Shrimp Appellate Body Report. 8.1.2

Conclusion

On the basis of the above analysis, it can be concluded that conservation of living natural resources can fall within sub-sections (a), (b) and (g) and lead to a 100-percent overlap among these sub-sections. word “exhaustible” in order to diminish the Norwegian concern that fisheries conservation might not fall within the scope of sub-section (g); see Section 5.4. 173

U.S.—Shrimp Panel Report, supra note 14, at para. at para. 3.237 (footnotes omit-

ted). 174

See id. para. 3.241.

175

See id. para. 3.242.

176 See Section 4.3.2.1 on the Appellate Body’s misunderstanding of the relevance of evolutionary interpretation of the term.

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This result can be argued to be against the principle of effectiveness on an overall level, because it leads to a disregard of the fundamental structure of GATT Article XX, which contains different sub-sections. Sub-section (a) is, however, easily eliminated from the analysis by the utilization of the principles laid down in the precautionary principle. By utilizing this approach, the panels could decide that scientifically based measures do not fall within the scope of the “moral” sub-section in (a). In relation to sub-sections (b) and (g), the overlap can can, however, be argued to be in conformity with the principle of effectiveness on the more particular level, if the overlap is due to an inherent textual overlap. This result could be confirmed by the negotiation records, which could be viewed as being inconclusive on the issue of whether both sub-sections (b) and (g) were envisaged to cover living natural resources. The overlap among sub-sections (b) and (g) can, however, be cured by deciding that solely non-living natural resources falls within the scope of sub-section (g). This decision would not be a revision of the treaty text, but merely a different interpretation of the word “exhaustible” in sub-section (g)—perhaps a more literal understanding of the world. This result could equally be confirmed by the negotiation records because they are inconclusive—in particular in the light that the sub-section regarding wild life from the Havana Charter was not transferred into the GATT. 8.2 Specimen “Conservation” Specimen conservation is, in this section, understood to mean conservation (meaning protection along the lines of protection of endangered species) of specimens of a non-endangered species. While the term in itself is contradictory, it is nevertheless, useful to illuminate the difference between animal welfare and the environment. A decision to protect a nonendangered species from, e.g., incidental taking while engaging in commercial fishing of other species stems from a different policy than the decision to protect an endangered species, although identical methods, i.e., conservation-type trade measures are utilized. This is evidenced by comparing the Tuna cases with the U.S.—Shrimp case; both of these cases involved a special type of fishing equipment in order to avoid the incidental taking—albeit dolphins were not endangered and the sea turtles were endangered. While it can be argued that there is a conservation motive, this book nevertheless posits that only those measures based on scientific evidence regarding threats to the survival of the species can be considered an environmental measure. Measures enacted to protect the species without scientific evidence

Policy Area of GATT Article XX • 249

pointing to a threat to the species, which would impede sustaining the species, are therefore specimen protection, i.e., animal welfare protection. There may, however, be a gray area for the so-called higher standards option in the various MEAs. A decision to enact a higher standard could, e.g., be to transfer a CITES Appendix II species to Appendix I. It is, however, possible to screen such a decision in order to clarify whether it is based on animal welfare concerns or environmental concerns by evaluating the scientific evidence relating to the decision to opt for higher protection. Specimen protection—in spite of its conservation “design”—is an animal welfare measure, which is based on morals. Textually, specimen protection falls within the scope of sub-section (a). Specimen protection, moreover, textually falls within the scope of both sub-sections (b) and (g)—based on the same analysis as under the general heading of conservation of living natural resources—albeit the arguments in sub-section (g) on the issue of the word “exhaustible” cannot be based on the fact that the species is already endangered and nearly exhausted. However, in the final analysis, it could be argued that all species are exhaustible, which would be a more philosophical interpretation of the world “exhaustible.” Thus far, only two cases have involved conservation of living natural resources that were not endangered. These two cases are the U.S.—Tuna I & II cases. There is no evidence in U.S.—Tuna I pointing to that dolphins, in any manner, were being killed in such great numbers that they had attained status as an endangered species. In fact, Mexico pointed to the fact that the dolphins in issue were not listed in CITES Appendix I and that U.S. authorities had publicly agreed that the dolphins in the ETP were not threatened with extinction.177 In U.S.—Tuna II, it was mentioned that dolphins were listed in Appendix II of CITES, and the United States argued that the protection of dolphins was stricter than that laid down CITES, which the treaty provided—and was an environmental measure.178 It should, however, be noted that the argument makes no sense, because CITES only aims at curbing trade in endangered species and has no direct bearing on measures enacted to prevent incidental taking of species. 177

See U.S.—Tuna I, supra note 8, at para. 3.44.

178

See U.S.—Tuna II, supra note 10, at para. 3.14.

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In relation to understanding the motives behind the measure in issue in the two Tuna cases, it should be noted that the policy to conserve dolphins arose out of the Marine Mammal Protection Act (MMPA) from 1972,179 which applies to all marine mammals—endangered or non-endangered.180 The MMPA does not imply that dolphins are endangered, by any means, in its special dolphin act—the “Dolphin Protection Consumer Information Act.”181 If, indeed, the current wording of this act’s initial finding is identical to the act at the time of the case, it is easily noted that Congress enacted the ban on certain tuna fish, inter alia, because “consumers would like to know if the tuna they purchase is falsely labeled as to the effect of the harvesting of the tuna on dolphins.”182 There is thus nothing in the MMPA (current version) or any other sources that as much as pointed to the fact that dolphins were endangered. Rather the MMPA directly refers to the fact that certain marine mammals are endangered.183 It is therefore evident that the MMPA is an independent policy choice for the United States; many marine mammals are, after all, charismatic animals, such as the dolphin and the polar bear. Moreover, the policy choice to protect these charismatic marine mammals as specimens is illuminated in the prohibition of the incident and purposeful taking charismatic mammals.184 This prohibition most likely stems from that taking and harassment of marine mammals from fishing methods results in injuries and often drowning, which is considered outright cruelty by most standards; after all, no country utilizes drowning by death or tearing off legs on their slaughter animals, who per se are destined for death in order to feed the humans and thus do not have the romantic “free life of a marine mammal” label attached to them, but they nevertheless receive a more “humane” killing method. On the issue of applicability of sub-section (g), Mexico argued that, even if it did not believe that living natural resources belonged in the subsection, living resources had to be in danger of extinction, and this had to be proved by scientific internationally recognized data, such as CITES Appendix I.185 179 The analysis of the MMPA is based on a current edition of the MMPA, but this should, nevertheless, not change the overall content of this particular analysis. 180

See 16 U.S.C. § 1362(6).

181

See 16 U.S.C. § 1385.

182

See 16 U.S.C. § 1385(b)(3).

See, e.g., 16 U.S.C. § 1371(a)(4)(B). See also Sands, supra note 148, at 402, who observed in year 2000 that dolphins were not and are not endangered. 183

184

See 16 U.S.C. § 1371(a).

185

See U.S.—Tuna I, supra note 8, at para. 3.44.

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The panel did, however, not make a separate “policy” test for sub-sections (b) and/or (g), nor did the panel respond to or comment on any references to the measure being a purely animal welfare measure with no justification as a biodiversity measure with, e.g., a species listed in CITES. Whether the panel lacked understanding of the issue or merely found it easier to discuss the entire Article XX issue in relation to extrajurisdictional issues is hard to guess. Therefore, while the U.S.—Tuna I panel could have decided that either one of, or both sub-sections (b) and (g) could only be used in cases of biodiversity issues, i.e., endangered species protection, it, nevertheless, chose to hold sub-sections (b) and (g) open to any kind of measures without any explanation or justification. In U.S.—Tuna II, where the protection of dolphins was associated with their status as Appendix II species: [T]he Panel noted that the United States maintained that dolphins were an exhaustible natural resource. The EEC disagreed. The Panel, noting that dolphin stocks could potentially be exhausted, and that the basis of a policy to conserve them did not depend on whether at present their stocks were depleted, accepted that a policy to conserve dolphins was a policy to conserve an exhaustible natural resource.186 The panel interpreted the term “exhaustible” to include protection of any species, regardless of its conservation status, i.e., whether it was endangered or not. The panel did not include any reference to the status of a CITES Appendix II species, most likely because it did not find it important to establish whether the species was endangered or not. CITES Appendix II species are, however, not necessarily species in need of a special conservation status. This is illuminated by recalling that Appendix II consist of “species which although not necessarily now threatened with extinction may become so unless trade in specimens of such species is subject to strict regulation.” 8.2.1

Conclusion

This book concludes that specimen conservation is an animal welfare measure—and, hence, a moral measure. The policy, however, textually equally falls within the scope of sub-sections (a), (b) and (g). Therefore, the result is identical to that of Section 8.1; there could potentially be a 100-percent overlap among the sub-sections for this particular policy. On the issue of eliminating any sub-sections, it is again sub-section (g) that is easiest to eliminate. It should, furthermore, be noted that it is even 186

U.S.—Tuna II, supra note 10, at para. 5.13.

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easier to argue that the term “exhaustible” should be given independent meaning when the species is not endangered. In Section 8.1 the term “exhaustible” appeared reasonable in relation to endangered species, because biodiversity, once extinct, is not renewable. If non-endangered species were accepted under sub-section (g), the term seems to be of more philosophical character—as in the U.S.—Tuna II Panel Report where the panel endorsed the idea that all natural resources are said to, in the final analysis, be exhaustible. On the issue of distinguishing between sub-sections (a) and (b), it is up to the future panels to determine whether all measures, which are morally founded, should be deferred to sub-section (a)—as Charnovitz suggests—or whether both sub-sections will apply due to their textual overlap on animal protection. If the measure is analyzed under sub-section (b), it would, however, be important to understand that it is an animal welfare measure and not an environmental measure to prevent extinction of a species. 8.3 Precautionary Measures—The Whale Example This section includes a recollection of the precautionary principle and perhaps an elaboration of certain issues pertaining to the utilization of the principle in the determination of whether a measure is an environmental measure or an animal welfare measure. Precautionary measures, which are argued based on science or insufficient scientific results, are accepted under the SPS Agreement. Deviations from international standards in SPS measures are allowed if there is scientific evidence.187 If scientific evidence is not sufficient, the agreement provides for a provisional measure until such evidence is collected.188 The allowance of such a precautionary measure is, however, based on some kind of a risk assessment, i.e., “on the basis of available pertinent information.”189 It could be argued that the SPS Agreement incorporates the precautionary principle.190 In relation to GATT Article XX, no such requirement exists—but it could easily be utilized in relation to environmentally motivated measures because they, as well as SPS measures, are based on science.

187

See SPS Agreement Article 3.3.

188

See SPS Agreement Article 5.7.

189

See id.

For an analysis of the precautionary principle as hard law, see Peter Pagh, Forsigtighedsprincippet—Fra Luftighed til Hard-Law, 15 UFR 153 (2003). 190

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If, however, precautionary measures are based on morals, the issue is quite different, because the risk of damage is not evidenced by any kind of scientific results—conclusive or not—as in the case of the precautionary principle.191 The inclusion of the precautionary principle in relation to the analysis of environmental measures under GATT Article XX mandates a strict separation between animal welfare measures and environmental measures. The only case under GATT Article XX, which comes close to the issue, is U.S.—Tuna I, where the United States argued that unless the killing of the dolphins was curbed, the species would be “unable to sustain themselves.”192 The United States, moreover, “stated that Article XX(g) did not specify whether the exhaustible natural resources being conserved must be depleted or threatened.”193 The United States “replied that the text of Article XX(g) referred to ‘exhaustible natural resources,’ not to ‘exhausted natural resources’ or ‘almost exhausted’ natural resources.”194 The dolphin example evidences a measure, which cannot be accepted as a precautionary measure, to protect biodiversity, because there is no risk assessment that points out that the dolphins are faced with a threat of extinction.195 Such threats would have to be evidenced with some kind of scientific evidence. In this case, the only argument put forth is that the dolphins are killed at unsustainable rates. Claiming the species is threatened without any scientific evidence therefore is a hypothetical threat to the dolphins as a species. The whale example is conversely an environmental measure, because it lives up to the requirements put forth in the precautionary principle. The whales have been protected, because science pointed in the direction that unless whaling was curbed, the whales would be extinct—this was, however, done without final and conclusive scientific evidence and in order to collect such evidence.196

191

See id. at 158–59.

192

See U.S.—Tuna I, supra note 8, at para. 3.40.

193

Id., para. 3.42.

194

Id., para. 3.46.

See also Richard W. Parker, The Use and Abuse of Trade Leverage to Protect the Global Commons: What We Can Learn From the Tuna-Dolphin Conflict, 12 GEO. INT’L ENVTL. L. REV. 1, 27 (1999), where he describes that the “risk” to the dolphin stocks was uncertain. 195

196

See Chapter 4, Section 9.

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8.4 Habitat Protection: Orangutan Example The orangutan can be protected in different ways. This example illuminates the different arguments that can be utilized for protecting the great ape with orange hair. 8.4.1

Trade Ban on Orangutan and Products Thereof

As illuminated in Chapter 4, Section 10.1, the orangutan is an endangered species and on CITES Appendix I. Therefore, a total trade ban on the orangutan is in force in all CITES countries. A total trade ban on the orangutan or products thereof would be analyzed according to Section 8.1, because it is conservation of living natural resources. Curbing trade in the orangutan does, however, not “save” the species, because its main threats are to its habitat, which primarily consist of ramin trees.197 Consequently, a trade measure enacted to protect ramin trees, i.e., a trade ban on ramin trees or products thereof, would be more effective in the protection of the orangutan. The trade ban on ramin can be argued two ways. 8.4.2

Trade Ban on Ramin to Protect the Orangutan

The trade ban can be argued to be a habitat protective measure to ensure conservation of the orangutan in its original environment. In this way, ramin is not per se sought protected, but rather the orangutan. This measure would also be a measure to protect living natural resources and fall within the sub-sections described in Section 8.1. 8.4.3

Trade Ban on Ramin to Protect Ramin

The trade ban could also be argued to protect ramin as a species—in particular because it is also under export prohibition by the Indonesian government and also is on CITES Appendix III. This trade measure would be protecting flora instead of fauna, but the analysis would still be as provided for in Section 8.1 because sub-section (b) also includes protection of plants. The measure is, however, a moral measure, if it cannot be evidenced that ramin is indeed endangered—and it would, in relation to this aspect, follow the analysis set forth in Section 8.2.

197

See Chapter 4, Section 10.1.

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8.4.4

Conclusion

The protection of the orangutan in all three variations illuminate that all three sub-sections potentially could apply along the lines of the analyses in Sections 8.1–8.2. More importantly, however, is the different ways in which the ape can be protected when including its habitat into the equation. It appears reasonable that the three different trade measures in the example should be analyzed differently, regardless of which sub-section they are analyzed under. 8.5 Prohibition of DDT: The Polar Bear Example The polar bear/DDT example can also be argued in different ways. First, DDT could be prohibited, because it pollutes the environment at large as illuminated in the two UNEP conventions; the PIC and the POPs Conventions. Utilizing a broad interpretation of sub-section (g), where biodiversity is understood as something “exhaustible,” sub-section (g) could apply to such a measure. Moreover, the environment relates to both man, animals and plants and their life and health and sub-section (b) could thus equally be argued to apply to such a measure. Second, DDT could be prohibited, because it causes injuries and threatens the polar bear. Protection of the polar bear would, in this manner, be an environmental measure, if scientific evidence pointed to decline in specimens of the species caused by utilization of DDT, or if the polar bear can be proven to be endangered and already in such urgent need of protection so even a little negative impact by DDT pollution must be eliminated—as evidenced by scientific evidence. If such a causal link is not proven, the protection of the polar bear would be an animal welfare measure. In both scenarios of environmental protection, the measures would fall within both sub-sections (b) and (g) following the analysis in Section 8.1. However, in the scenario where DDT is prohibited in order to protect the polar bear as an animal welfare measure, this measure will most likely not meet the “related to” and “necessity” test—if these tests are made relatively “harder” because the measure is an animal welfare measure enacted to protect specimens from pollution in general. The example is, however, also only an example—and there is probably not any country in the world that would enact a DDT ban due to the protection of the polar bear only, but more broadly to avoid the adverse effects of DDT as an persistent organic polluter as provided for in the two UNEP Conventions. 8.6 Kosher and Halal Laws The deviation from Sections 8.1 and 8.2 is found in these two religious slaughter rules.

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Sub-section (a) could apply for two reasons: (1) because religion can be argued to be an issue of public morals; and (2) because it could be argued that this is the most humane slaughter method that exists, which is a pure animal welfare policy. The issue of sub-section (b) is more difficult. Humane slaughter touched upon both components of animal welfare: human slaughter can be viewed humane in the physical sense, i.e., that the animal physically suffers less by utilizing this slaughter method. Moreover, it can be viewed as being the method by which the animal suffers least mentally. It is, however, most likely that both perspectives on humane slaughter are combined. Sub-section (b) could be viewed as only applying to measures that relate to life and health of animals and not the killing method. However, a broader interpretation of the sub-section is equally possible. A broader interpretation would include mental and physical status of the animal in relation to the word “health.” The easy part of the analysis would be the elimination of sub-section (g). Clearly, these rules do not aim at protecting natural resources from extinction, and sub-section (g) does not apply. 8.7 Time Limits on Live Animal Transport Time limits on live animal transport also stem from an animal welfare policy, which aims primarily at the animals’ mental health—unless the time limits are so high that it also is a policy to protect the physical health from a veterinary point of view. From a veterinary point of view, there may be a limit to how long time animals can endure transport before dying at high rates. It is difficult for horses to stand up and balance themselves for many hours in a horse transport, and they would eventually suffer physical damage if standing up too long. Assuming, however, that the policy is one of seven hours maximum transport time, this limit is set due primarily to mental health considerations. Clearly, such a core animal welfare measure would fall within the scope of sub-section (a). Moreover, if sub-section (b)’s reference to “animal health” is viewed as to also cover animal’s mental health, then this sub-section would also apply. 8.8 Leg-Hold Traps The issue of leg-hold traps is almost identical to the issues of Halal and Kosher slaughtering and time limits on transport of live animals, except that there is no religious argument as in the Halal and Kosher examples.

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Therefore, the issue can be analyzed under sub-section (a), because it is an animal welfare measure, and it can be analyzed under sub-section (b), if the animals’ mental health is accepted under this sub-section. 8.9 Fur from Cats and Dogs The decision to ban imports of fur from cats and dogs distinguishes itself from the above examples, because this example includes a policy where the decision is based on a moral choice of simply finding it wrong to utilize these animals for any kind of production. Where the other examples thus far accepted a killing and utilization of the animals for food and fur, this example does not accept any kind of utilization. The trade measure falls directly under sub-section (a) as a moral measure and does not fall within sub-section (g), because it is not a preservation policy that is pursued. Sub-section (b) poses more analytical problems. It can be argued that protection of animal life and health is the policy sought when finding utilization of pets in production immoral. If this is accepted, then textual analysis of sub-section (b) could render the sub-section applicable. The subsection could, however, easily be determined not to apply, because the primary policy is not to protect animal life and health but simply a determination of right and wrong in relation to which animals are utilized in fur production. 8.10 Fur from Baby Seals This analysis is nearly identical to that of fur from pets, and it can be analyzed under sub-sections (a) and (b), depending on how the panels and Appellate Body interpret sub-section (b). 8.11 Animal Testing of Cosmetics The prohibition on animal testing of cosmetics is easily determined to be an issue of animal welfare, which falls within sub-section (a). It can also be determined easily that sub-section (g) does not apply, because it is not an issue of conservation of natural resources. The problem is therefore, again, whether sub-section (b) can be accepted to justify a measure that protects animals against being used in in vivo testing of cosmetics. Textually, it could be understood that protection of animals in relation to in vivo testing is protection of “animal life and health.” It could, however, also be decided that the decision not to use animals for in vivo testing in

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relation to cosmetics is a purely moral decision, because animals are still utilized for in vivo testing in, inter alia, the pharmaceutical industry. 9

CONCLUSION AND SUMMARY

The principle of effectiveness has, in the above analysis, been mentioned in relation to several aspects. Initially, it must be noted that the Appellate Body and the panels under the WTO cannot be “responsible” for the manners in which the panels under the GATT interpreted the “policy” test. The panels and the Appellate Body do, however, have a responsibility to utilize the principle of effectiveness of treaty interpretation in its future cases—as well as they had the responsibility in their past cases. As for the substance of the issue, it should first and foremost be noted that the principle of effectiveness is a principle that is often cited to but rarely put into a context where it is understandable. It is easy to merely state “this is in conformity with the principle of effectiveness” and not explain why. This book, however, encountered analytical difficulties in utilizing the principle in analysis without addressing how this principle comes into an analysis and what it adds to an analysis. This book posits that the principle consists of a two-step mechanism: 1.

2.

It must come into consideration when words, clauses or passages of the treaty text are found to be redundant or superfluous. It must be evaluated whether a different type of interpretation exists where the redundancy is cured. This type of interpretation is, however, limited by the notion that the treaty interpreter must not revise the treaty.

On an overall level, the principle of effectiveness should de lege sententia be utilized to “spark” some analysis of the fundamental structure of GATT Article XX. The article consists of sub-sections; three of them have been analyzed extensively in this book. The conclusions and observations for these three sub-sections do, however, apply to all the sub-sections in the article. Noting initially that the article consists of different sub-sections, the next observation is that, in these different sub-sections, some “trade tests” are identical and some are not. The notion of interpreting the treaty in good faith and noting the existence of the principle of effectiveness directs the treaty interpreter to give meaning to the different sub-sections. This meaning must both respect the overall structure of dividing the article into different sub-sections and equally that some trade tests in the sub-sections are identical and some are not.

Policy Area of GATT Article XX • 259

This book posits that the only manner in which this meaning can be given to the sub-sections is to give independent meaning to each sub-section. This independent meaning must be an inherent part of the “policy” analysis, because it is this “test” that directs the measures into the different sub-sections. The consequence of not considering the “policy” test important is that the interpretation is not in conformity with the principle of effectiveness, because the interpretation ignores the independent meaning of that particular sub-section. This conclusion is closely connected to the issue of detaching the “policy” test from the subsequent trade test, which equally has the consequence of not being in conformity with the principle of effectiveness for largely the same reasons. It has, however, also been illuminated that giving meaning to the subsections is difficult, given the antiquated structure of GATT Article XX. This is evidenced in relation to distinguishing animal welfare measures from environmental measures. It has been illuminated that policies relating to both topics potentially may fall within identical sub-sections, which illuminate that giving independent meaning to sub-sections, including essentially both moral and scientific measures, is difficult. This evidences the antiquated structure of GATT Article XX. A revision of the treaty text could cure this problem by, e.g., rewriting sub-section (b) to protect only human health and sub-section (g) to protect the environment. Another issue is the practical consequence as opposed to the interpretive flaws. The practical consequence of not defining the difference between the sub-sections is that the treaty in effect is rewritten into “necessary to protect public morals, human, animal or plant life or health.” This book has posited that meaning could be attached to each sub-section to distinguish them from each other. This solution may nevertheless be impracticable, because it is difficult to draw a line between the sub-sections in their current from. The panels and the Appellate Body could therefore equally take the view that the problem of having identical tests in several sub-sections is caused by the drafters of the treaty; and their role is only to interpret the text as it is. On a more particular level, the analysis led to the conclusion that the principle of effectiveness should be (de lege sententia) utilized to spark an analysis of whether more than one sub-section should apply to the same trade measure. The analysis illuminated that it is possible to eliminate sub-sections from the analysis in various ways. In relation to sub-sections (b) and (g), sub-section (g) could be determined to only apply to those measures aimed

260 • The WTO, Animals and PPMs

at protecting non-living natural resources. In relation to sub-section (a), one solution could be that all moral measures falls within this sub-section only. There are, however, considerable problems with defining which policies are moral and which policies stem from other policy areas, because certain policies may have underlying policies of both protection of human health and morals. Despite the difficulties, the book posits that by utilization of the principles in the precautionary principle, it is possible to distinguish human health and environmental measures from the moral measures. The suggestion is to require scientific evidence in the form of a risk assessment for human health and environmental measures—and for precautionary (temporary) measures, to require that the risk is based on scientific evidence, albeit this need not be complete (i.e., analysis need not be finished if a certain risk is verified). Measures not based on these scientific principles could be singled out as moral measures. Whether all moral measures should be deferred to sub-section (a) or whether they still can be analyzed under other sub-sections is a choice for the panels and the Appellate Body to make. Regardless, however, it is important to classify the moral measures for purposes of understanding the measures and consequently differentiating the GATT Article XX analysis. In conclusion, this book proposes a revision of GATT Article XX to avoid the problems described above. The sub-sections should be rewritten as follows: (b) “test” to protect human health, including those human health measures, which arise out of moral decisions, such as, but not limited to, drug and alcohol issues; . . . . (g) “test” to protect the environment based on scientifically verifiable methods. Whether the “tests” should be identical or different for all the sub-sections is not of the utmost importance, because the GATT Article XX has illuminated that it can exist with identical tests. The most important thing is to clearly define the policy scope of each sub-section. This de lege ferenda suggestion would avoid the major problems described in the above analyses—but it would not enlarge the scope of policies falling within GATT Article XX. There is thus nothing to fear from the members, which otherwise are not keen on including the environment or animal welfare in the WTO system. These policies are already in GATT Article XX; the article is however so old that analytical problems are attached to the article, and these could be cured by a revision.

CHAPTER 9

A NEW ANALYTICAL FRAMEWORK The division of measures under sub-sections (a), (b) and (g)—and in principle also the other measures—into three distinct categories (internal measures, non-product-related PPMs and product-related PPMs) can provide a systematic analytical framework for the analysis of the sub-sections and the chapeau analysis. This framework, inter alia, fills the gaps of the analytical problems regarding the analysis of extraterritorial and/or extrajurisdictional effect and the discussion of location of natural resources, which are sought protected. 1

UNDERSTANDING DIRECTIONS

Understanding directions of a trade measure is the second step in the analysis of trade measures enacted to protect animals and these trade measures’ possible justification under GATT Article XX. It was suggested in Chapter 8 that unless the panels and the Appellate Body include some kind of screening mechanism or value judgment on moral measures, it could potentially lead to the dangerous situation where each country could enact numerous trade measures based on morals, where there would be no means of second-guessing such a policy, i.e., a slippery slope. Chapter 8 also suggested that based on the value of the policy, the subsequent trade tests could be made easier or more difficult—which they to a large degree already are—as illuminated in the EC—Asbestos case. This chapter illuminates how the slippery slope could be avoided by utilizing the systematic framework suggested in Thesis 2. The verification of Thesis 2 is therefore essentially to illuminate how a systematic framework can assist in determining which measures should be scrutinized especially harshly—depending on the direction of the measure—and to clarify issues in relation to extraterritoriality, extrajurisdictionality and the discussions surrounding outwardly directed trade measures. 1.1 Direction of Trade Measure The starting point for creating a structural basis for the analysis of each sub-section of Article XX, is to understand in which direction the policy of the trade measure is aimed.

261

262 • The WTO, Animals and PPMs

The usual approach is to divide the measures into two categories: the internal ban and then another category of external measures. The latter, albeit being the more unusual1 measure, however, presents difficult analytical issues, which is, in most academic writings, analyzed under titles such as extraterritoriality, extrajurisdictionality,2 outwardly directed measures, external measures, etc.3 External measures are analyzed in connection with process and production methods (PPMs) because the PPM, by its nature, demands a change of the process or production method inside another member’s jurisdiction, which is, e.g., illuminated in the U.S.—Shrimp case where other countries were forced to utilize turtle excluder devises (TEDs) in course of their shrimp harvesting in order to sell their shrimp to the United States.4 1.2 Why Distinguish Between Inwardly and Outwardly Directed Measures? Before getting into the analysis of the three different measures as proposed in Thesis 2, it is important to understand why the issue of PPMs5 has received so much specialized attention and what the analytical difficulties have been. The main issue regarding PPMs is that they, by their nature, are outwardly directed trade measures, albeit Section 1.3 posits that the productrelated PPM for certain analyses should be treated as an inwardly directed measure. There are two major issues in relation to outwardly directed trade measures: the sovereignty issues in relation to general international law and the trade issues, where this author posits the former issue is based on a misunderstanding of general international law.

1 See Sanford E. Gaines, Processes and Production Methods: How to Produce Sound Policy for Environmental PPM-Based Trade Measures, 27 COLUM. J. ENVTL. L. 383, 388 (2002). 2 The difference between extraterritoriality and extrajurisdictionality is outlines in Section 1.2.2.2. 3 See, e.g., Steve Charnovitz, The Moral Exception in Trade Policy, 38 VA. J. INT’L L. 689, 695 (1998) [hereinafter Charnovitz, Morals]; JOCHEM WEIRS, TRADE AND ENVIRONMENT IN THE EC AND THE WTO 361–66 (2002); BUGGE THORBJØRN DANIEL, WTO ADJUDICATION, at 359–67, 418–27 (2005). 4 See also ARTHUR APPLETON, ENVIRONMENTAL LABELLING PROGRAMMES 10 (1997), who defines PPMs in relation to mandatory labeling requirements as measures “designed to reflect how a particular product is manufactured.” 5

PPMs are in this book defined to encompass both categories of PPMs in Thesis 2.

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1.2.1

Sovereignty Issues and PPMs

In order to understand why sovereignty issues are analyzed in relation to outwardly directed trade measures, the effect of a PPM on other countries should be reiterated. When imports are subject to a particular PPM, this essentially means that the exporting country will have to comply with the PPM (i.e., change its process or production method) or export its products to another country. It can be argued that the PPM has an element of coercion. The panels in the U.S.—Tuna cases included analysis of coercion and jurisdictional limits in relation to sub-sections (b) and (g), i.e., whether these sub-sections could be used to force other trading partners to protect animal life and natural resources outside the jurisdiction of the country taking the measure.6 From these analyses, it could easily be understood that trade measures that “regulated” “something” inside another country’s jurisdiction have something to do with the sovereignty of the affected country. These cases may have sparked the interest in the analysis of issues of sovereignty in relation to PPM issues among legal scholars, albeit it is customarily not explained why sovereignty is mentioned. An example of including sovereignty in the PPM analysis is: Application of non-product-related PPMs is highly contentious and touches upon notions of sovereignty. The more so when the legality of such measures is to be decided through adjudication within a multilateral setting.7 Another scholar, Arthur Appleton, engaged in 30 pages of analysis of, inter alia, sovereignty, merely to conclude: It must be recognized, however, that pursuant to general international law, there is no obligation to trade on a non-discriminatory basis. . . . This does not mean that mandatory labelling requirements directed at NPR-PPMs will never raise legal concerns pursuant to general international law. Such concerns are, however, likely to be confined to instances when a labelling scheme is directed at a state that

6 See United States—Restrictions on Imports of Tuna, DS21/R- 39S/155, Report of the Panel, Sept. 3, 1991, unadopted, at paras. 5.25–5.28, 5.31–5.32 [hereinafter U.S.— Tuna I]; United States—Restrictions on Imports of Tuna, DS29/R, Report of the Panel, June 16, 1994, unadopted, at paras. 5.15–5.17, 5.27, 5.31–5.32, 5.39 [hereinafter U.S.— Tuna II]. 7

DANIEL, supra note 3, at 425.

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is largely dependent on the export of a particular labelled product and as a result of the labelling scheme the targeted government has little economic choice but to modify its environmental practices.8 In fact, I have engaged in an analysis of sovereignty in relation to PPMs,9 and so has the former Director-General for the WTO, Renato Ruggeiro, who in 1997 posited: What a country cannot do under WTO rules, however, is apply trade restrictions to attempt to change the process and production methods—or other policies—of its trading partners. Why? Basically because the issue of production and process methods lies within the sovereign jurisdiction of each country.10 However, as rightly noted by Appleton above, there is no obligation to import products or to trade without discrimination in general international law. Moreover, there is no obligation to import goods in general international law. Consequently, the discussion of sovereignty is misunderstood. It is, moreover, interesting to take the analysis one step further and notice that it is by virtue of the unlimited sovereignty, in relation to trade under general international law, that countries have a right to decide which products they will import. This sovereignty is unlimited, regardless of whether trade barriers are put in place as PPMs or otherwise. In addition, it could be argued that this notion of sovereignty is reiterated in the U.N. Charter, which emphasizes the right to self-determination. The right to selfdetermination is thus, in the context of trade, to be understood as the right to determine the country’s own policies—including its import policies. Turning the argumentation around and claiming that a country, by virtue of general international law or by virtue of the U.N. Charter, is impaired from adopting certain import policies, because other countries have a right to export their products, is simply a misunderstanding of the concept of self-determination. Limitation to this sovereignty is found in trade agreements, which is eloquently explained by the Appellate Body in Japan—Alcohol:

8

APPLETON, supra note 4, at 60.

See Laura Yavitz (now Nielsen), The WTO and the Environment: The US—Shrimp Case that Created a New World Order, 16 J. NAT. RESOURCES & ENVTL. L. 203, 241–44 [hereinafter Yavitz (now Nielsen), US—Shrimp]. 9

10 Renato Ruggiero, A Shared Responsibility: Global Policy Coherence For Our Global Age, Speech delivered in Bonn, Dec. 9, 1997, available at http://www.wto.org.

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The WTO Agreement is a treaty—the international equivalent of a contract. It is self-evident that in an exercise of their sovereignty, and in pursuit of their own respective national interests, the Members of the WTO have made a bargain. In exchange for the benefits they expect to derive as Members of the WTO, they have agreed to exercise their sovereignty according to the commitments they have made in the WTO Agreement.11 Historical facts also reveal that a country has unlimited rights to decide its own trade policies; it was primarily the unlimited access to trade barriers in general international law that led to the advent of the creation of the GATT system in the 1940s to avoid the flourishing protectionism.12 In this light, it should be easier to comprehend why analysis of sovereignty in relation to the legality of PPMs is a misunderstood discussion. In conclusion, a country can contract out of its unlimited sovereignty in trade treaties. Therefore, limitations to the right to enact PPMs, for purposes of this book, are to be found in WTO law. 1.2.2

The WTO Issues on PPMs

The analyses in this book focus on the exception to the substantive obligations in the GATT. Therefore, the analysis of PPMs solely focuses on GATT Article XX and presupposes that the trade barrier was found in violation of either GATT Article I, III or XI.13 Analyses of this prior inconsistency with either GATT Article I, III or XI is found in Chapter 7. In relation to whether there is a principle inherent in the GATT, which per se makes it illegal to engage in PPM trade barriers, a fundamental difference between a free trade area and a trade liberalization treaty should be illuminated.

11 See Japan—Taxes on Alcoholic Beverages, Report of the Appellate Body, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, Oct. 4, 1996, at 13–14 [hereinafter Japan—Alcohol Appellate Body Report]. 12 See e.g., JOHN H. JACKSON ET AL., LEGAL PROBLEMS OF INTERNATIONAL ECONOMIC RELATIONS, at 4–7 (3d ed. 1995) [hereinafter JACKSON ET AL.]. 13 Several scholars have made extensive analysis of the legality of PPMs in relation to GATT Article III—and whether they indeed fall within GATT Article III instead of GATT Article XI. See DANIEL, supra note 3, at 359–67; Robert Howse & Donald Reagan, The Product/Process Distinction—An Illusory Basis for Disciplining ‘Unilateralism’ in Trade Policy, 11 EUR. J. INT’L L. 249 (2000); WEIRS, supra note 3, at 362–64. But see Gaines, supra note 1, at 424–28, who equally focuses on the GATT Article XX analysis and also presupposes a violation of the substantive obligations.

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In a free trade area, trade must flow freely. The country signing a free trade agreement has surrendered its sovereignty in relation to hindering trade in any manner it deemed appropriate by signing a treaty. However, when entering into the WTO, the GATT, by and large, imposes certain negative obligations on the members in a trade liberalization system. There is therefore a limitation of sovereignty in the form of refraining from making certain trade barriers—albeit there is no notion of free trade—and it can thus not be assumed that a PPM per se is illegal in relation to the WTO. This is the main difference between a free trade system and a trade liberalization system.14 1.2.2.1 Historical GATT/WTO Approach to PPMs This historical outline of the GATT/WTO approach to PPMs is solely focused on one type of PPMs, the non-product-related PPM. The discussion of the legality of PPMs was not focused on the fact that PPMs can be divided into two distinct categories, because the effect of the PPMs was the focal point. Therefore, the following historical outline on the effect of PPMs is limited to the two U.S. programs on fishery methods, which sparked the discussion surrounding the coercive trade measures. Both these programs are non-product-related PPMs. Historically (i.e., in the U.S.—Tuna era), it was discussed whether PPMs per se could be legal in relation to the GATT/WTO system.15 As illuminated above, the former Director-General, Ruggeiro, categorically denied the option of utilizing of PPMs in relation to WTO. The issue of PPMs was, for the first time, adjudicated in U.S.—Tuna I and U.S.—Tuna II. The measure in both cases required dolphin-safe tuna fishing methods in order to sell tuna to the United States. The U.S.—Tuna I and II analyses surrounded the issues of jurisdictional limitations on the sub-sections in GATT Article XX. In U.S.—Tuna I, the panel concluded, on the basis of the drafters’ intent, that GATT Article XX, sub-sections (b) and (g) could only be applied within the jurisdiction of the importing country.16 After having reviewed the negotiation records, it is probably fair to assume that the drafters did 14 See also WEIRS, supra note 3, at 347–66, where he analyzes, inter alia, the positive integration in EC law as opposed to no such integration in WTO law. 15 See e.g., Steve Charnovitz, The Law of Environmental PPMs, 27 YALE J. INT’L L. 59, 76–78 [hereinafter Charnovitz, PPMs], who enumerates a series of commentators, who perceives that PPMs are illegal per se. 16

See U.S.—Tuna I, supra note 6, at paras. 5.26, 5.32.

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not focus on directions of the trade measures and did not analyze jurisdictional limitations.17 The analysis in this light appears to be a justification for a result, rather than an analysis that led to the conclusion in the U.S.— Tuna I Panel Report. In U.S.—Tuna II, the panel gave a little more thought to the question. The panel noted that the textual analysis did not “spell out any limitation on the location of the exhaustible natural resources to be conserved.” 18 The panel further noted that two previous cases regarding migratory species of fish had not distinguished between fish caught inside or outside the jurisdiction of the countries involved.19 Moreover, the panel noted that sub-section (e) specifically “related to things or actions outside the territorial jurisdiction of the party taking the measure.”20 Finally, the panel made the observation that according to general international law, a country could, in principle, regulate the conduct of its own fishermen outside its jurisdiction.21 Therefore, the panel accepted that the policy of preserving dolphins within the Eastern Tropical Pacific Ocean, where the United States exerted jurisdiction over its nationals, fell within the policy scope of sub-section (g).22 Thus, the U.S.—Tuna II panel accepted that a measure with extrajurisdictional effect could be justified as falling within the policy of sub-sections (b) and (g) by the need of a country to regulate its fishermen around the globe. The panel, however, found that the measure did not meet the requirements of the other tests, because the measure had the coercive element that essentially aimed at forcing other countries to change policies in order to obtain market access.23

17 See also Steve Charnovitz, Exploring the Environmental Exceptions in GATT Article XX, 25 J. WORLD TRADE, 37, 53 (1991) [hereinafter Charnovitz, GATT Article XX]. 18

See U.S.—Tuna II, supra note 6, at para. 5.15.

See id. at para. 5.15, referring to Reports of the Panels in Canada—Herring— Salmon and U.S.—Canada—Tuna. 19

20

See id. at para. 5.16.

21

See id. at para. 5.17.

22

See id. at para. 5.20.

23

See id. at para. 5.26–27. This was also the analysis of subsection (b); see id. at para.

5.39.

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1.2.2.2 Extrajurisdictionality and Extraterritoriality The term extraterritoriality stems from the line of arguments by Mexico in the U.S.—Tuna I case. Mexico argued in that “nothing in Article XX entitled any contracting party to impose measures in the implementation of which the jurisdiction of one contracting party would be subordinated to the legislation of another contracting party.”24 The Mexican argument was that Article XX should only be allowed for exceptions to trade measures that are “internal”—“within or from their own territory.”25 The Mexican line of arguments aimed at the notion of extraterritoriality as opposed to the term extrajurisdictional. The panel in U.S.—Tuna I, inter alia, based on the negotiating history of the clause, decided that Article XX(b) could not be utilized to protect life or health of humans, animals or plants outside its jurisdiction.26 The panel did thus not utilize the territorial approach in its reasoning. Rather, the panel analyzed the jurisdictional issues, i.e., the extrajurisdictional protection of dolphins.27 The same type of jurisdictional arguments was utilized by the panel on sub-section (g).28 It is thus evident that while Mexico argued the case on a territorial approach, the panel did not utilize the territorial approach or mention the word “extraterritorial.” Charnovitz has offered a meaningful criticism and analysis of the difference between the two concepts: Because the core of its decision rests on the concept of extrajurisdictionality, one might think that the GATT panel—in inventing the term—would have paused to define it. Since the panel did not, one can only induce from context that “extrajurisdictionality” means a law concerning activities that occur outside one’s country. Whether the term covers a law applying simultaneously to domestic and non-domestic activities remains unclear. Also unclear is the exact boundary of a “domestic” or “jurisdictional” objective. One thing that extrajurisdictionality does not mean is extraterritoriality. Extraterritorial laws impose domestic standards on trans-

24

U.S.—Tuna I, supra note 6, at para. 3.31.

See id. at para. 3.31 (emphasis added). The same argument was used later in the report on Article XX(b); see id., at para. 3.35. 25

26

See id. at paras. 5.24–5.29.

27

See id. at paras. 5.24–5.26, 5.28.

28

See id. at paras. 5.31–5.32.

New Analytical Framework • 269

actions occurring in foreign countries. For example, the recent decision by the administration of President George Bush to apply US antitrust law to Japanese companies in Japan is an application of extraterritoriality. In addition, laws that regulate foreign use of domestic-origin goods or the behavior of domestic corporations abroad are extraterritorial. Although the Tuna-Dolphin panel did not confuse the two issues, “extraterritoriality” is commonly misused to describe standards or conditions for voluntary commerce.29 1.2.2.3 Contemporary WTO Approach to PPMs Nowadays, the discussion of the legality of PPMs appears numbed by the acceptance of a PPM in the U.S.—Shrimp case.30 Moreover, nothing in the WTO Agreements suggests that there should be a preference to allowing internal trade measures as opposed to external: the TBT and the SPS Agreements specifically recognize that they cover PPMs,31 and GATT Article XX(e) covers prison labor, which is also a PPM. The U.S.—Shrimp case did not address the issue of “extraterritorial” or “extrajurisdictional” application. The case, instead, utilized the term “unilateral”: “The principal consequence of this failure [to negotiate an agreement] may be seen in the resulting unilateralism.”32 The failure of the Appellate Body to utilize the term “coercive trade measure” and instead discuss “unilateralism” was not merely a bad choice of words but also deferred the discussion of whether a country should be allow to coerce another country into adopting a policy in order to obtain market access under a different title than usually utilized, namely PPM, coercive trade measures, extrajurisdictionality or extraterritoriality: 29 Steve Charnovitz, GATT and the Environment, Examining Issues, available at http:// www.ciesin.org/docs/008-061/008-061.html [hereinafter Charnovitz, Environment] (footnotes omitted). 30 See also Charnovitz, PPMs, supra note 15, who dedicates an entire article to debunk the myth of the illegality of PPMs; WEIRS, supra note 3, at 361. 31 See Agreement on Technical Barriers to Trade, WTO Agreement Annex 1A, Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 1125 (1994), Annex 1.1 and explanatory note [hereinafter TBT]; Agreement on the Application of Sanitary and Phytosanity Measures, WTO Agreement Annex 1A, Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 1125 (1994), Annex A 1 [hereinafter SPS]. 32 See United States—Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body, WT/DS58/AB/R, Oct. 12, 1998, at para 172 [hereinafter U.S.—Shrimp Appellate Body Report]. See also Joanne Scott, On the Kith and Kine (and Crustaceans): The and Environment in the EU and the WTO, in THE EU, THE WTO AND THE NAFTA, TOWARDS A COMMON LAW OF INTERNATIONAL TRADE 125, 141 (J. H. H. Weiler ed. 2000) who equally noticed that the Appellate Body solves the dispute without confronting the territorial scope (if any exists).

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It appears to us, however, that conditioning access to a Member’s domestic market on whether exporting Members comply with, or adopt, a policy or policies unilaterally prescribed by the importing Member may, to some degree, be a common aspect of measures falling within the scope of one or another of the exceptions (a) to (j) of Article XX.33 The Appellate Body did not explain itself sufficiently when “mixing” up the two different concepts: it is true that unilaterally prescribed norms is a common aspect of Article XX, but whether these norms have coercive effects, is not per se a common aspect. In order to coerce another country into adopting or complying with a policy, the trade measure prescribing the norm must be a PPM; if it is not a PPM, there is nothing to adopt or comply with; the product can simply not be exported to the member prescribing the norm. For definitional purposes, it is therefore of utmost importance to differentiate between the two concepts, despite the Appellate Body’s lack of clear definition. As pointed out earlier, unilateralism, as defined by this author, essentially is a common aspect of all cases adjudicated under Article XX, because multilateral measures cannot be adjudicated vertically but merely horizontally. Put differently, even if a measure arose out an obligation laid down in a MEA or bilateral agreement, it is still adjudicated as an unilateral measure in the DSM of the WTO. Due to the fact that the Appellate Body in U.S.—Shrimp 21.5, approved a coercive measure under GATT Article XX, this book does not analyze the legality of PPMs per se. Rather, it utilizes the directions of trade measures to create a systematic framework, which can assist the analysis of GATT Article XX. Essentially, the systematic framework can be said to answer Jackson’s questions: With respect to the product/process problem, the issue is not so much whether this distinction can be justified in all contexts [parenthesis omitted], but rather how to develop some constraints on the potential misuse of process-oriented trade barriers (i.e. the “slippery slope”). The real question is: If one abandons the product/process distinction or otherwise opens up the possibility of trade-restraining measures tied to process of production, how does one draw an appropriate line to prevent abuse?34 33

See U.S.—Shrimp Appellate Body Report, supra note 32, at para. 121.

John H. Jackson, Comments on US—Shrimp/Turtle and Product/Process Distinction, 11 EUR. J. INT’L L. 303, 304 (2000). 34

New Analytical Framework • 271

1.3 Not Two but Three Categories of Measures Many scholars divide PPMs into two categories: the non-product-related PPMs (NPR-PPMs) and product-related PPMs (PR-PPMs).35 There is nothing new in this division. The innovative part in introducing this systematic framework is that the three categories of measures are utilized to assist the analysis of GATT Article XX, i.e., a tool rather than a specialized analysis of the outwardly directed measures. In order to understand how to distinguish between NPR-PPMs and PRPPMs—and to understand why this book deems it necessary to distinguish between the two categories—it is important to understand one basic premise for the entire analysis: this book focuses on the policy direction of a measure and not on the product policy. As Charnovitz realized in his analysis of what he calls outwardly directed measures, depending on what policy is pursued, the direction of the policy may not be strictly inwardly or outwardly directed. A ban on, e.g., products produced by indentured children may be characterized as inwardly directed when considering the prevention of the “moral taint from serving as a market for such products.”36 The measure may, however, also be characterized as outwardly directed when considering that the production method should be changed in another country, i.e., a production method without utilizing indentured children in the work force. Charnovitz, in this analysis, links the terminology to both the policy and the product, which, in this instance, gives both directions. This book overcomes this confusion by understanding the policy direction only. As mentioned earlier, this book distinguishes between NPR-PPMs and PR-PPMs. This is important, because the policy direction of the two types of PPMs is different. The three categories of measures (the internal and the two types of PPMs) are illuminated below. 1.3.1

Internal Measures

The internal measures are easy to understand; the product itself is the subject for the trade policy. An example is, e.g., an import ban on pandas or on ivory. In this case, the policy is directed inwardly and is, moreover, linked directly to the product itself; i.e., it is the product per se that is undesirable.

35 See e.g., APPLETON, supra note 4, at 10–11; DANIEL, supra note 3, at 361; Gaines, supra note 1, at 396–99. 36

See Charnovitz, Morals, supra note 3, at 695.

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1.3.2

NPR-PPMs

Regarding NPR-PPMs, the end product is no different—whatsoever— than any other products.37 It is only the process or production method that is changed. The U.S.—Shrimp case involved this type of measure, because shrimp harvested with and without TEDs are identical. It is not the product, which is undesirable, but the manner in which it is produced. This book posits that in categorizing a measure and in understanding the policy direction, it is only the policy that should be focused on. It is, however, important that part of the justification of the measure is found in the “moral taint” of the product. The product policy is internal, meaning that even if the end product is not different from products not complying with the measure demanding the NPR-PPM, the product complying with the NPR-PPM gives a “moral” satisfaction for the citizens within the jurisdiction; i.e., the citizens of the United States know that eating shrimp does not endanger sea turtles anymore. The direction of the policy of the measure is to ensure that a particular process or production method is curbed, because there is “something wrong with it” in this member’s point of view. In focusing on the policy itself, the policy is thus clearly aimed at seeking to “regulate” “something” outside the jurisdictional limits of the member. The inwardly directed effect of a NPR-PPM is therefore purely the “moral” satisfaction in having eliminated the “moral taint” of the product. 1.3.3

PR-PPMs

The policy of the PR-PPMs is only aimed at protecting the citizens, inside the jurisdiction of the member, against products that are different than the products not complying with the PR-PPM; e.g., Halal and Kosher certified beef is different than non-certified beef. While the PPM, by its nature, ends up “regulating” “something” outside the jurisdiction of the member enacting the measure, the policy is, nevertheless, directed inwardly. In this sense, the PR-PPM differs from the NPR-PPM. 1.4 Systematic Approach for Article XX Analysis When understanding that trade measures can be divided into three categories, the systematic approach for analyzing the environmental protection of animals and animal welfare in Article XX can be outlined as follows: Sub-section (a)—internal

Sub-section (a)—NPR-PPM

Sub-section (a)—PR-PPM

Sub-section (b)—internal

Sub-section (b)—NPR-PPM

Sub-section (b)—PR-PPM

Sub-section (g)—internal

Sub-section (g)—NPR-PPM

Sub-section (g)—PR-PPM

37

See also, APPLETON, supra note 4, at 10.

New Analytical Framework • 273

The outline illuminates nine boxes, which represent the categorization based on the structure of measures and the structure of GATT Article XX(a), (b) and (g). Curiously, sub-section (e), regarding prison labor, is per se designed to only cover NPR-PPMs,38 which essentially leads to the following systematic outline: Sub-section (a)—internal

Sub-section (a)—NPR-PPM

Sub-section (a)—PR-PPM

Sub-section (b)—internal

Sub-section (b)—NPR-PPM

Sub-section (b)—PR-PPM

Sub-section (e)—NPR-PPM Sub-section (g)—internal

Sub-section (g)—NPR-PPM

Sub-section (g)—PR-PPM

1.5 Practical Considerations Relating to PPMs At this stage, it may be of importance to understand why it is necessary for countries to utilize PPMs. The necessity and advantages of PPMs can be illuminated by example. In, e.g., the U.S.—Shrimp case, the policy goal for the U.S. government was to avoid the incidental killing sea turtles while harvesting for shrimp. Shrimp was therefore a product the U.S. government still wanted to keep on the market. What needed to be changed was the manner in which shrimp was harvested. In this instance, certain shrimp lived in waters where sea turtles did not live. It was therefore easy to make a law stating that those shrimp, harvested in waters where sea turtles did not live, could still enter the U.S. market as before. The law, however, needed to curb the incidental taking of sea turtles in the waters where they appeared. It is important to understand that there are two reasons why the United States could not rely on an internal measure banning all imports of shrimp; the United States would still like to keep shrimp on the market, and certain shrimp could be harvested without any harm to sea turtles.39 The law needed to create a trade measure that applied to those shrimp caught in waters where sea turtles appeared, and it needed to provide for a mechanism by which those shrimp, which were caught in a sea turtle friendly manner could be distinguished from the other shrimp. The shrimp example evidences that the PPM is less trade restrictive than a total ban (i.e., an internal measure) in the sense that it allows for trade in certain shrimp. The example also illuminates that the PPM is unavoidable in situations where trade in a specific product is still desirable; i.e., the United States still wanted to maintain a market for shrimp. The practical 38 Before the acceptance of a NPR-PPM under Article XX (in the U.S.—Shrimp 21.5 case), sub-section (e) was argued to be allowed to have extrajurisdictional effect, because it was a protection against unfair competition, see U.S.—Tuna II, supra note 6, at para. 3.35. 39

Farmed U.S. shrimp would equally pose no threats to sea turtles.

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utilization of a PPM, however, often entails a certification mechanism that can distinguish the products complying with the PPM from those that do not. Certification and evidence mechanisms to prove a PPM was complied with, necessitates cooperation with the affected governments. What type of teamwork is needed must be evaluated on a case-by-case basis, but it is easy to understand that cooperation is advantageous if a country, e.g., needs to certify that products lived up to the requirements of a PPM. Another example is the practice in Islamic countries of importing only Halal slaughtered meat. If, indeed, these countries should refrain from coercing other countries to Halal certify their exports, their only alternative would be to flat out ban all meat. Thus far, and most likely to infinity, no WTO member is going to bring a case regarding this issue, as it makes sense that when exporting meat to these countries, they are properly Halal certified, and this appears to be unproblematic. Another way to view this is that if, e.g., Denmark had a choice between selling no meat or selling Halal certified meat, Denmark would probably choose to sell Halal certified meat—and this is how the real world operates. GATT Article XX does not provide for special tests regarding cooperation, certification, etc., in relation to PPMs; these tests are developed in case law. Conversely, the SPS Agreement illuminates that “equivalence” is important; i.e., Article 4 prescribes that members must accept the SPS measures from other members as “equivalent” if they offer the same level of protection—even if they differ from their own SPS measures. The drafters of the SPS Agreement demonstrated that in the area of PPMs, it is important to be able to rely on other countries’ measures. Article 4, moreover, recognized that inspection, testing and other relevant procedures may be necessary, i.e., typical issues for cooperation in relation to, e.g., certification. 2

TWO ISSUES: DIRECTION AND VALUE

From the introduction to the three types of trade measures set forth above, it can be understood that the three types of measures entail three types of analyses in GATT Article XX. Moreover, it should be recalled from Chapter 8 that if the trade measure is taken pursuant to a more “important” policy, the subsequent trade tests are made easier. It should, however, be underscored that these two manners, in which the GATT Article XX analysis can be differentiated, are different. The importance of a measure may, however, depend on the direction of a measure. 2.1 Value Judgment of the Policy According to the analysis set forth in Chapter 8, a trade measure may fall within several sub-sections, depending on how the panels and the

New Analytical Framework • 275

Appellate Body decide to deal with the issues. Regardless, however, of which sub-section(s) applies to a trade measure, the analysis set forth in Chapter 8 suggests that the policy of the trade measure is understood, inter alia, to inform the subsequent trade tests. This type of differentiating the difficulty of the trade tests, based on the value of the policy, stems from a value judgment. The value judgment was not explained in detail in Chapter 8, because this type of value judgment depends on the direction of the measure. For internal measures, it is probably fair to assume that a country must ban nearly any item for nearly any policy falling within the range of policies in GATT Article XX. However, for PPMs, evaluation of the policy choice must be stricter. In this evaluation, it becomes relevant whether a policy is derived from other instruments in jus gentium, which regulates this particular policy area. Whether a policy is unilateral, as opposed to multilateral, is a factor in evaluating the relative importance of a measure. 2.2 Direction of the Policy: Extra Tests? The second thing to understand in the “policy” test is whether the trade measure is internal, a PR-PPM or a NPR-PPM. This determination does not involve any kind of value judgment, but it is an objective assessment of which type of trade measure is utilized to pursue the policy goal in issue. The assessment does, however, have a bearing on how difficult the subsequent trade tests are, but this type of differentiating stems from the design of the trade measure, i.e., whether the measure is internal, PR-PPM or NPRPPM. If the measure is a PPM, the extra tests, relating to cooperation with other countries in the subsequent trade tests, make the tests relatively more difficult than those in the analysis of the internal trade measure. The issue of which trade tests are included for internal measures and for PPMs are analyzed in Section 3. Section 4 analyzes the value judgment of the policies and goes more into the difference between PR-PPMs and NPR-PPMs as well as whether the policy is unilateral or multilateral. 3

EXTRA TRADE TESTS?

This section illuminates the differences in trade tests for internal measures as opposed to PPMs under GATT Article XX. It should be noted that all the tests are illuminated in Chapter 6, and this section does not repeat everything stated in Chapter 6 regarding GATT Article XX; it merely points out which tests are “extra” for PPMs as opposed to internal measures. The section repeats certain analyses from Chapter 6. 3.1 No Extra Trade Tests for Internal Measures The EC—Asbestos case is the only WTO case that illuminates how the analysis of an internal measure is conducted—albeit it should be recalled that the findings on GATT Article XX was reduced to dicta by the Appellate Body.

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The most important aspect to understand in relation to the analysis of internal measures is that the analysis need not consider whether the country invoking GATT Article XX cooperated sufficiently with affected countries. Put differently, it could be said that the analysis of internal trade measures does not include any “extra” test that is included in the analyses of the PPMs. Therefore, if the panel and the Appellate Body in EC—Asbestos had utilized the systematic framework from this book, the “policy” test had, apart from designating the policy in sub-section (b), also clarified that this was an internal measure pursuing an “important” policy. Based on that information, it would be clarified that the subsequent trade tests would be made relatively easier, because it was an important policy—and the analysis should not involve any issues of cooperation with other countries. The analysis would not be different by utilizing the systematic framework, but it would be more transparent and easier to understand. 3.1.1

Sub-Section (b)

The EC—Asbestos case is the only case thus far to approve the “necessity” test in sub-section (b). In Thailand—Cigarettes, the measure was also an internal measure regarding human health, but that measure did not survive the “necessity” test. The comparison of the two cases illuminates that the test changed from the “least trade restrictiveness” test to the “less trade restrictiveness” test; recalling from Chapter 7 that the “less trade restrictiveness” test included aspects of proportionality testing (i.e., made the test relatively easier if the policy was important). In EC—Asbestos, the Appellate Body recalled the findings from Korea—Beef, where the Appellate Body modified the “least trade restrictiveness” test: We indicated in Korea—Beef that one aspect of the “weighing and balancing process . . . comprehended in the determination of whether a WTO-consistent alternative measure” is reasonably available is the extent to which the alternative measure “contributes to the realization of the end pursued.” In addition, we observed, in that case, that “[t]he more vital or important [the] common interests or values” pursued, the easier it would be to accept as “necessary” measures designed to achieve those ends.40 Based on EC—Asbestos, it must hence be concluded that the “necessity” test for internal measures nowadays is the “less trade restrictiveness” test. 40 European Communities—Measures Affecting Asbestos and Asbestos-Containing Products, Report of the Appellate Body, Mar. 12, 2001, WT/DS135/AB/R, at para. 172 [hereinafter EC—Asbestos Appellate Body Report] (footnotes omitted).

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How this test translates into testing a PPM is illuminated in the analyses in Section 3.2. 3.1.2

Sub-Section (g)

The two early GATT fisheries disputes, the U.S.—Canada—Tuna and Canada—Herring—Salmon were internal sub-section (g) cases. These two cases are thus the only case law on internal sub-section (g) measures and are, due to their old age, not the best precedents to analyze interpretations from. However, what can be understood from the cases is that neither of them analyzed issues of cooperation with other countries. The “related to” and “in conjunction with” tests are hence straightforward for internal measures. Recalling from Chapter 7 that those tests in the two old fisheries cases were: 1.

2.

The “related to” test in Canada—Herring—Salmon, which read as follows: “whether the export prohibitions on certain unprocessed salmon and unprocessed herring maintained by Canada were primarily aimed at the conservation of salmon and herring stocks and rendering effective the restrictions on the harvesting of salmon and herring.” The “in conjunction with test” in the U.S.—Canada—Tuna case was a test of whether the United States also limited domestic consumption of tuna fish. In the case concerning an export prohibition, the Canada—Herring—Salmon case, the test was also a test of whether domestic limitations on those types of fish were in place.

One could speculate whether a trade measure prohibiting trade in, e.g., ivory would survive the tests in sub-section (g) if the measure was enacted by Denmark, which does not have any elephants. In such a case, the measure would probably easily survive the “related to,” test because such a trade ban would be “primarily aimed at” conservation of elephants. The “in conjunction with” test would, however, be more difficult to analyze, because there was no internal production of ivory. The most likely analysis of such a scenario would be that the “in conjunction with” test would be satisfied by the mere fact that by prohibiting imports ivory, there would effectively not be an internal market for ivory—and this would limit internal “consumption,” while the criterion of internal “production” per se was satisfied. 3.1.3

Chapeau Analysis

The only case, thus far, to utilize the chapeau analysis on an internal measure is the EC—Asbestos case. The chapeau analysis was, however, not on appeal, and the findings on the issue are set forth in the panel report.

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The chapeau analysis in EC—Asbestos amounted to, firstly, determining whether the measure was discriminatory. The panel found that the internal measure; i.e., essentially a ban on asbestos did not contain any discriminatory elements and did not constitute arbitrary or unjustifiable discrimination.41 Secondly, the panel analyzed whether the measure in its application constituted a disguised restriction on international trade. The panel did not find any protectionist intentions in the French measure and concluded, without much analysis, that the published French law did not constitute disguised restrictions on international trade.42 As illuminated in Chapter 7, the chapeau analysis in EC—Asbestos was short and limited compared to the analyses in U.S.—Gasoline and U.S.— Shrimp. The reason for this difference is that the U.S.—Gasoline and U.S.— Shrimp analyses included extra tests regarding effects on other countries, because these measures were PPMs. 3.2 Extra Trade Tests for PPMs The most important aspect common to both types of PPMs is that the measures “regulate” “something” within another country’s jurisdiction. In order to verify whether the final product was, indeed, produced in the manner, which the PPM prescribed, verification mechanisms are often necessary. Verification mechanisms and licensing approvals were therefore the “extra” tests that needed to be passed in case law on PPMs. In U.S.—Tuna I, the panel noted that in order to get approved as an exporter of tuna, the applicant country must not exceed the incidental dolphin taking rate by the U.S. fishing vessels.43 In U.S.—Gasoline, the Appellate Body analyzed whether it was possible to cooperate with other countries in order to achieve reliable data regarding the pollution contents and origin of imported gasoline.44 Finally, in U.S.—Shrimp, most of the chapeau analysis in the original Appellate Body Report, and in the U.S.— Shrimp 21.5 Appellate Body Report, surrounded issues of cooperation (including issues of negotiation) and facilitation of certification.45 41 See European Communities—Measures Affecting Asbestos and AsbestosContaining Products, Report of the Panel, WT/DS135/R, Sept. 18, 2000, at para. 8.230 [hereinafter EC—Asbestos Panel Report]. 42

See id. at paras. 8.234, 8.238.

43

See, e.g., U.S.—Tuna I, supra note 6, at paras. 5.28, 5.33.

See, e.g., United States—Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, Apr. 29, 1996, at 28 [hereinafter U.S.—Gasoline Appellate Body Report]. 44

45

See, e.g., United States—Import Prohibition of Certain Shrimp and Shrimp

New Analytical Framework • 279

Clearly, there is a difference between NPR-PPMs and PR-PPMs, but for those particular issues of analyzing the aspects of the measures, which relate to other countries in the course of approving import licenses, negotiating agreements, verifying and approving certification, etc., the measures encounter identical problems. Therefore, the common aspects of the “extra” tests are analyzed as one big category of PPMs instead of two separate. After this common analysis, the special features of each PPM are analyzed, i.e., the fact that the PR-PPM has in inwardly directed policy, whereas the NPR-PPM has an outwardly directed policy. 3.2.1

Sub-Section (b)

The “necessity” test differs for PPMs as opposed to the internal measures in relation to cooperation with other countries. Cooperative elements are analyzed under both the “necessity” test and under the chapeau analysis. Thus far, the “necessity” test has never been satisfied by a PPM measure. It remains to be seen if this is indeed possible. Moreover, there are considerable uncertainties as to which extra tests should be conducted in the “necessity” test. The only example of a WTO case on PPMs, which analyzed a PPM under the “necessity” test, is the U.S.—Gasoline case. The U.S.—Gasoline case utilized the “least trade restrictiveness” test, because this case was brought before the modification of the test in Korea—Beef.46 There was no issue of weighing and balancing factors in relation to analyzing whether another measure “reasonably available” could have been utilized. It must, however, be assumed that the “less trade restrictiveness” test in the future will be utilized in cases involving PPMs. What, however, is clear from the U.S.—Gasoline Panel Report is that the “necessity” test included evaluation of other factors than those set forth in the EC—Asbestos case. The panel examined whether foreign shipments of gasoline could have been subject to the more favorable individual baseline as domestic oil was: [T]here was no reason to believe that, given the usual measures available in international trade for determination of origin and tracking of goods (including documentary evidence and third party verification) there was any particular difficulty sufficient to Products, Recourse to Article 21.5 of the DSU by Malaysia, Report of the Appellate Body, WT/DS58/AB/RW, Oct. 22, 2001, at para. 113 [hereinafter U.S.—Shrimp 21.5 Appellate Body Report]. 46

See Chapter 7.

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warrant the demands of the baseline establishment methods applied by the United States.47 Moreover, the panel analyzed whether foreign data should be relied upon by the U.S. authorities: In the Panel’s view, the United States had not demonstrated that data available from foreign refiners was inherently less susceptible to established techniques of checking, verification, assessment and enforcement than data for other trade in goods subject to US regulation. The nature of the data in this case was similar to data relied upon by the United States in other contexts, including, for example, under the application of antidumping laws . . . If a similar practice were to be applied in the case of the Gasoline Rule, then importers could, for instance, be permitted to use the individual baselines of foreign refiners for imported gasoline from those refiners, with the statutory baseline being applied only the source of imported gasoline would not be determined.48 Given the fact that both the chapeau analysis and the “necessity” test go into issues of cooperation and practical considerations, which are relevant when analyzing the external effects of a PPM, it becomes important to distinguish these two tests from each other. It should be recalled that the “necessity” test is a test of whether the measure is necessary to achieve the policy goal in issue, whereas the chapeau analysis is an evaluation of the application of the measure. The U.S.—Shrimp 21.5 Appellate Body Report illuminates this difference in a practical sense. In the U.S.—Shrimp 21.5 case, the United states had revised the guidelines for the law in issue, because the application of the law had failed the chapeau analysis in the original U.S.—Shrimp proceedings. The chapeau analysis focused on the application and administration of the law, whereas the “necessity” test is a test that evaluates the trade measure as it is designed in the law. This difference may, however, prove difficult to discern in practice. This is also evidenced in the U.S.—Gasoline case, where the chapeau analysis by the Appellate Body utilized the reasoning from the “necessity” analysis by the panel.49 The Appellate Body, moreover, utilized phrases in the 47 United States—Standards for Reformulated and Conventional Gasoline, Report of the Panel, WT/DS2/R, Jan. 29, 1996, at para. 6.26 [hereinafter U.S.—Gasoline Panel Report]. 48

Id. at para. 6.28.

See, e.g., U.S.—Gasoline Appellate Body Report, supra note 44, at 27, where the Appellate Body cited to the reasoning in the U.S.—Gasoline Panel Report, supra note 47, paras. 6.26 and 6.28. 49

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chapeau analysis, which are usually utilized in the “necessity” test: “There was more than one alternative course of action available to the United States in promulgating regulations implementing the CAA. These included the imposition of statutory baselines without differentiating as between domestic and imported gasoline. This approach, if properly implemented, could have avoided any discrimination at all.”50 3.2.2

Sub-Section (g)

Both the U.S.—Gasoline and the U.S.—Shrimp cases were analyzed under sub-section (g), and these cases give insight into whether extra tests are added under this sub-section when analyzing a PPM. In order, however, to understand the U.S.—Gasoline case, a deeper analysis must be included, because some of the analyses in the reports were flawed and misunderstood. 3.2.2.1 The U.S.—Gasoline Case The case was brought by Venezuela and Brazil, claiming the U.S. trade measure to ensure “clean air” was contrary to GATT and TBT obligations.51 The measure functioned to ensure that the gasoline in the U.S. market was divided into two groups, conventional and reformulated gasoline, where the latter, and less polluting gasoline, was mandatory in nine large metropolitan areas.52 Reformulated gasoline means that the gasoline had to undergo a process to make it less polluting.53 The main issue, however, surrounded the establishment of the socalled “baselines,” which are a standard set in 1990 to ensure the level of pollutants in the gasoline did not rise in the future, e.g., in 1995 when the case was brought.54 The key issue in the Article XX analysis was that the difference between the individual baselines and the statutory baseline, 55 where the former were more favorable.56 50

See id. at 25.

The measure was taken pursuant to the Clean Air Act of 1963; see U.S.—Gasoline Panel Report, supra note 47, at para. 2.1. 51

52 See id. at para. 2.2. Venezuela and Brazil claimed violation of GATT Articles I and III and TBT Article 2; see id., para. 3.1. 53

For specific requirements, see id., para. 2.3.

54

See id., paras. 1.1, 2.4–2.8.

See id., para. 6.22, recalling the finding of para. 6.16, which stated that for the purposes of GATT Article III:4, the foreign U.S.—Gasoline was treated less favorably than domestic U.S.—Gasoline. 55

56

See, e.g., id. at para. 6.6.

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A more technical description of this is that there were three different manners in which an individual baseline could be established.57 When an individual baseline could not be established, the statutory baseline was utilized. Domestic refiners could utilize all methods for establishing their individual baselines; blenders and importers could only utilize one method; and foreign refiners could not establish baselines.58 On that background, [t]he Panel observed that domestic gasoline benefitted in general from the fact that the seller who is a refiner used an individual baseline, while imported gasoline did not. This resulted in less favourable treatment to the imported product, as illustrated by the case of a batch of imported gasoline which was chemically-identical to a batch of domestic gasoline that met its refiner’s individual baseline, but not the statutory baseline levels.59 The U.S. measure was thus not merely a PR-PPM, which would have been the case if the measure only demanded one type of baseline requirement for reformulated and conventional gasoline. The measure contained two types of baselines, the statutory (more strict) and the individual, where the latter was, by and large, offered only to the domestic industry.60 It was the latter part of the measure that the panel had found to be in violation of Article III:4.61 To draw a parallel to another type of PR-PPM, this scenario would be the equivalent of, e.g., Israel only allowing Kosher beef into Israel, if certification had been made according to a higher standard than the Kosher certification standard in Israel. The first analysis under sub-section (g), after the “policy” test, is the “relation to” test, which essentially is a “primarily aimed at” test. The issue is thus whether the “measure” was “primarily aimed at” conservation of “clean air.” This test caused some confusion, because the panel and the Appellate Body 57

See id. at para. 2.6.

See U.S.—Gasoline Appellate Body Report, supra note 44, at 5–6; U.S.—Gasoline Panel Report, supra note 47, at paras. 2.6–2.8. Importers that import 75 percent from their foreign refinery can, however, utilize all three methods, but this rule has ceased to exist and was thus part of the proceedings; see U.S.—Gasoline Panel Report, supra note 47, at paras. 2.7 and 6.19. 58

59

U.S.—Gasoline Panel Report, supra note 47, at para. 6.10.

For the sake of keeping the analysis simple, the term “industry” is utilized rather than enumerating all the different rules for, e.g., domestic blenders, foreign refiners, etc. 60

61

See U.S.—Gasoline Appellate Body Report, supra note 44, at 13–14.

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did not split the measure up into two issues: the PR-PPM by itself and the discriminating baseline establishment rules. The panel had found the discriminating baseline establishment rules to be in violation of Article III:4 and had thereafter proceeded to find the “less favorable baseline establishment methods” not “primarily aimed at” preserving “clean air”—a rather redundant test.62 The Appellate Body noticed the redundancy of the analysis and, by utilization of the principle of effectiveness in treaty interpretation, decided on a different approach— whether the baseline establishment rules, taken as whole, were “primarily aimed at” conservation of “clean air.”63 The Appellate Body, thereafter, concluded that the baseline rules, taken as a whole, survived the test: “We consider that, given that substantial relationship, the baseline establishment rules cannot be regarded as merely incidental or inadvertently aimed at the conservation of clean air in the United States for the purposes of Article XX(g).”64 What is important to note here is that PPMs, where certification for foreign products are different in the negative sense, i.e., foreign products must meet a higher standard, are accepted under the “related to” test. If this is compared to the “necessity” test as applied by the panel in the same case, it is evident that the “necessity” test not only is more “rigid,” but that it also took into consideration the different and discriminatory aspects of the two different types of baselines. It is likely that the Appellate Body would have approved that interpretation of the “necessity” test had it been on appeal; the Appellate Body relied on the findings of the panel in the “necessity” test in the chapeau analysis—and moreover referenced the findings in the “related to” test: The Panel Report, it will be recalled, found that the baseline establishment rules had not been shown by the United States to be “necessary” under Article XX(b) since alternative measures either consistent or less inconsistent with the [GATT] were reasonably available to the United states for achieving its aim of protecting human, animal or plant life. In other words, the Panel Report

62

See id. at 15.

See id. at 18; the principle of effectiveness was not verbalized directly until page 23, but it was nevertheless the same kind of analysis conducted on the relationship between Article III:4 and Article XX when it states: “Nor may Article III:4 be given so broad a reach as effectively to emasculate Article XX(g) and the policies and interests it embodies.” 63

64

Id. at 19.

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appears to have applied the “necessary” test not only in examining the baseline establishment rules under Article XX(b), but also in the course of applying Article XX(g).65 On the basis of those references, it must be assumed that the Appellate Body considered the findings to be correct; otherwise, the inclusion of them appears superfluous. In relation to PPMs, where foreign products are not certified under the same conditions as domestic, it must therefore be concluded that such measures would not survive the “necessity” test, if other and less discriminatory measures could have been used—taking into consideration whether cooperation with other countries would have solved the problem. Whereas this type of measure, according to the analysis in U.S.—Gasoline, would survive the “related to” test, provided that the relationship between the measure, taken as a whole, and the policy is sufficiently close. Moreover, it must be inferred that the PR-PPM would survive both sub-sections (g) and (b) if it had not contained the discriminatory aspect regarding the statutory baselines. But this was not explicitly stated. On the issue of the “in conjunction with” test, the requirement of evenhandedness does not mean that foreign and domestic gasoline should be offered identical treatment.66 What the Appellate Body did consider was whether domestic regulation of “dirty” gasoline was also in place, and, by answering this affirmatively, the test was met.67 It must therefore be concluded that neither the “related to” test nor the “in conjunction with” test analyzed any topics relating to cooperative elements or reliance on foreign data. Curiously, the same differences between sub-sections (b) and (g) were present already at the time of the U.S.—Tuna I case, where the panel in relation to the “necessity” test stated that the United States could and should have negotiated with Mexico in order to cooperate on the issue of the dolphins.68 Moreover, the panel was unsatisfied that the incidental dolphin taking rate was unpredictable, because it was linked to the dolphins taken by the U.S. fishing vessels in the same year.69 In the analysis of sub-section (g), the issue of cooperation was not analyzed, but the incidental dolphin taking rate was.70 65

Id. at 16.

66

See id. at 20.

67

See id. at 21.

68

See U.S.—Tuna I, supra note 6, at para. 5.28.

69

See id.

70

See id. at para. 5.33.

New Analytical Framework • 285

3.2.2.2 The U.S.—Shrimp Case The issue of whether sub-sections (b) and (g) should be differentiated in the manner set forth in both U.S.—Gasoline and U.S.—Tuna was not clarified in U.S.—Shrimp. Recall from Chapter 7 that both sub-sections were invoked in the panel proceedings in U.S.—Shrimp, but the panel did not analyze any of the sub-sections, because it based its entire analysis on the chapeau analysis, which it held not to be satisfied.71 The Appellate Body only analyzed sub-section (g), and did not include any considerations of cooperation, or lack of such, in its evaluation of the “related to “ test. Rather, it followed the approach from the U.S.—Gasoline case and analyzed the relationship between the policy goal and the measure: In its general design and structure, therefore, Section 609 is not a simple, blanket prohibition of the importation of shrimp imposed without regard to the consequences (or lack thereof) of the mode of harvesting employed upon the incidental capture and mortality of sea turtles. Focusing on the design of the measure here at stake it appears to us that Section 609, cum implementing guidelines, is not disproportionately wide in its scope and reach in relation to the policy objective of protection and conservation of sea turtle species. The means are, in principle, reasonably related to the ends. The means and ends relationship between Section 609 and the legitimate policy of conserving an exhaustible, and, in fact, endangered species, is observably a close and real one, a relationship that is every bit as substantial as that which we found in United States—US—Gasoline between the EPA baseline establishment rules and the conservation of clean air in the United States.72 On the issue of the “in conjunction with” test, the Appellate Body equally followed the approach set forth in U.S.—Gasoline and examined the evenhandedness of the measure, i.e., whether domestic regulation also was in place to protect sea turtles from shrimp harvesting.73 The Appellate Body did not examine any issues relating to cooperation with other countries. 3.2.3

Conclusion on Extra Tests in the Sub-Sections

Based on the cases thus far, it must be concluded that the “necessity” test is the only test in sub-sections (b) and (g) that includes extra tests for 71 See United States—Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Panel, WT/DS58/R, May 15, 1998, at paras. 7.26–62 [hereinafter U.S.— Shrimp Panel Report]. 72

U.S.—Shrimp Appellate Body Report, supra note 32, at para. 141.

73

See id. at paras. 143–145.

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PPMs. The “necessity” test in both U.S.—Gasoline and in U.S.—Tuna I included analyses of whether a less trade restrictive measure could have been employed—one that was based on cooperative efforts and/or one that would take foreign data into consideration and trust foreign data as it is done in, e.g., anti-dumping cases. Moreover, it does not appear that the counter-part tests in sub-section (g) implicitly included any analysis of whether the measure could have been different or should have been different in relation to cooperative efforts or reliance on foreign date. In fact, the U.S.—Gasoline case illuminates that “harsher” certification criteria can be employed for foreign products and still live up to the requirements in sub-section (g). It is therefore fair to conclude that PPMs are easier to justify under subsection (g) than sub-section (b), not only because the “necessity” test per se is more difficult for all measures but also because the counter-part tests in sub-section (g) are not made more difficult for PPMs. 3.2.4

Chapeau Analysis

After having read Sections 4.3 in Chapter 7, regarding the chapeau analysis, it is easy to understand that PPMs are treated much differently in the chapeau analysis than internal measures. The PPMs, which easily survive the trade tests in sub-section (g), therefore, receive the same “strict” scrutiny under the chapeau analysis as the ones from sub-section (b)— assuming that PPMs, at a certain point in time, will survive sub-section (b). As mentioned earlier, it is difficult to discern the difference between the “necessity” test and the chapeau analysis in relation to the analyses of cooperation and reliance on foreign data. The chapeau analysis is supposed to focus only on the application of the measure, but the problem with that formulation is that when the design of the trade measure is such that it is per se discriminatory, then it will consequently also be discriminatory in its application. Whereas a facially neutral trade measure may survive the “necessity” test, the measure may, nevertheless, not survive the chapeau analysis, if its application is discriminatory. The most important aspect of the chapeau analysis in relation to PPMs is that the Appellate Body in U.S.—Gasoline and U.S.—Shrimp has set forth certain criteria to consider when analyzing PPMs. In U.S.—Gasoline, the Appellate Body focused most of its attention on the fact that the United States had not pursued cooperative arrangements in order to verify the origin of foreign oil and to facilitate mechanisms to ensure reliable foreign data, such as on-site verification or testing.74 74

See U.S.—Gasoline Appellate Body Report, supra note 44, at 25–29.

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In U.S.—Shrimp, a series of factors relating to the certification program was put forth. Based on U.S.—Shrimp, it is therefore important to note that in the event a PPM utilizes certification, the criterion for certification must not be that the foreign programs are “essentially the same;” rather, the program criterion should be whether the foreign programs are “comparable in effectiveness.”75 Moreover, in the event a country is not certified, there needs to be a mechanism by which individual producers, living up to the requirements laid down in the PPMs, can be certified.76 In U.S.—Tuna I, it was mentioned several times that the certification process was unpredictable, because the incidental dolphin taking rate was linked to that of the U.S. fishermen in the same year.77 In U.S.—Shrimp, the transparency and due process aspects of the certification process were equally criteria for the acceptance of the chapeau analysis.78 The most controversial aspect of the findings in the U.S.—Shrimp proceedings is probably the criterion to “negotiate in good faith.” As illuminated in Chapter 6, Section 6.3.1, this aspect may prove difficult to evaluate, because it may be difficult to understand exactly what is required. One thing is, however, clear; there is no requirement to conclude a treaty, but there is a requirement to negotiate.79 3.3 Conclusion The above analyses should have made it clear that the GATT Article XX analysis differentiates between internal and PPM measures in the different tests. The analysis of the trade tests in sub-section (g) is not different for internal and PPM measures, whereas the “necessity” test in subsection (b) and the chapeau analysis includes extra tests for PPM measures as opposed to internal measures. It should, moreover, be recalled that the difference between the “necessity” test and the chapeau analysis for PPMs is unclear in case law. This section should have illuminated the core trade analysis aspect of the difference between internal and PPM measures. The following section 75

See U.S.—Shrimp 21.5 Appellate Body Report, supra note 45, at para. 144.

See United States—Import Prohibition of Certain Shrimp and Shrimp Products, Recourse to Article 21.5 by Malaysia, Report of the Panel, WT/DS58/RW, June 15, 2001, at para. 5.107 [hereinafter U.S.—Shrimp 21.5 Panel Report]; U.S.—Shrimp Appellate Body Report, supra note 32, at para. 165. 76

77

See U.S.—Tuna I, supra note 6, at para. 5.28, 5.33.

See U.S.—Shrimp Appellate Body Report, supra note 32, at paras. 178–184; U.S.— Shrimp 21.5 Panel Report, supra note 76, at paras. 5.126–5.136. 78

79

See U.S.—Shrimp 21.5 Appellate Body Report, supra note 32, at para. 123.

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goes into the issue of value judgment, where the PPMs are divided into two categories. For purposes of keeping an overview, in relation to the core trade tests, PPMs are treated as one category, whereas, in the value judgment, the PPMs are divided into two groups (NRP-PPMs and PR-PPMs) in order to evaluate the policy of the measure. 4

VALUE JUDGMENT AND DIRECTIONS

In EC—Asbestos, in relation to the “necessity” test, it was illuminated that the test was made relatively easier, because the policy to protect human health was considered “important.” In Chapter 7, it was posited that this type of value judgment may be necessary to avoid abuse and slippery slope effects in relation to GATT Article XX in general. At this stage of the book, the previous analyses have laid the foundation for entering into considerations of how a value judgment could be made. 4.1 Directions and Value Judgment It has been illuminated throughout the book that there is a difference between animal welfare measures and environmental measures to protect animals. The main difference is that the former is based on morals and the latter on science. It has, moreover, been illuminated that PPM measures affect other countries in the manner that these other countries, inter alia, must change production methods, apply for certification, provide evidence of compliance with PPMs, etc. The comprehension of all these issues makes a value judgment possible—and also fruitful. When a country enacts an internal measure, the effect is that the measure is not discriminatory, because no country can export that particular product to that country anymore. If the import ban is combined with an internal prohibition, the measure will most likely survive both sub-sections (b) and (g)—and the chapeau analysis. In the EC—Asbestos case, it was illuminated that if a policy is considered important, the “necessity” test was made easier. However, in the perfect example of a complete internal trade ban where domestic production and consumption is equally prohibited, there would be no need to make any of the tests easier, because the measure, most likely, would survive all the trade tests. For external trade measures, the scenario is different. PPMs face problems with the “extra” tests in the “necessity” test and the chapeau analysis. Therefore, it appears more important to evaluate the importance of the policy in order make the trade tests relatively easier in the area of PPMs. The easy justification of the internal measures is, however, not only to be found in the non-discriminatory aspect of the measure. The internal

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measure also reflects the notion that a sovereign country, by signing a trade treaty with exceptions, retained the right to determine that certain products should not enter its market.80 The PR-PPM resembles this scenario, because the policy also aims inwardly. This can be illuminated by evaluating the policy in the U.S.—Gasoline case: in terms of direction of the policy of the measure, the aim was to ensure clean(er) air within the United States. The measure did not ban gasoline per se, but laid out certain product requirements for gasoline for both the reformulated and conventional gasoline. These requirements were detectable in the product; i.e., the gasoline polluted less, which evidenced the direction of the measure; it aimed at ensuring clean(er) air within the United States. Conversely, had the measure been a NPR-PPM, the effect of the PPM would not have been detectable; i.e., the gasoline would not have polluted less, and there would thus not be an effect within the United States. It is therefore evident that for the internal and the PR-PPM measures, the policy goal is inwardly directed, which makes the policy easier to categorize as important. It may, however, be relevant to justify the policy for a PR-PPM anyway; the SPS Agreement illuminates the notion that in order to enact measures for food safety, these PR-PPMs must be based on either international standards or be taken pursuant to scientific evidence. In terms of NPR-PPMs, the policy is aimed at “regulating” “something” outside the jurisdiction, which makes a policy more difficult to categorize as important for that country. This is where the issues of unilateralism and multilateralism become important. In these cases, it may be relevant to evaluate what interest the country has in protecting whatever it is “regulating” outside its jurisdiction. This issue will also be analyzed in relation to analyzing whether there should be, and perhaps is, a requirement of “nexus” between the country taking the measure and “what” the country “regulates” outside its jurisdiction. 4.2 Multilateral Policies It was posited earlier that all trade measures adjudicated in the WTO are unilateral in the sense that even if a trade measure arose out of a multilateral obligation in another treaty, the trade measure would still be adjudicated as being unilateral. The reason for this is found in the manner in See also Frieder Roessler, Environmental Protection and the Global Trade Order, in ENVILAW, THE ECONOMY AND SUSTAINABLE DEVELOPMENT 107, 100 (Richard L. Revesz et al. eds., 2000), who equally posits that “there is . . . no conflict between WTO Law and the efficient pursuit of a domestic environmental policy objective”; Richard B. Steward, Introduction, to ENVIRONMENTAL LAW, THE ECONOMY AND SUSTAINABLE DEVELOPMENT 1, 3 (Richard L. Revesz et al. eds., 2000). 80

RONMENTAL

290 • The WTO, Animals and PPMs

which the DSM of the WTO functions. There is simply no possibility for adjudicating vertical cases; i.e., there is no possibility for adjudicating the legality of a norm stemming from the different treaty in relation to the substantive obligations under the covered agreements. It is only the horizontal issues, that are adjudicated, i.e., whether a national trade measure is in violation of the substantive obligations in the covered agreements. This does, however, not mean that a measure stemming from an obligation in a different instrument should not be treated differently than had the measure arisen out of purely unilateral policy. It is therefore important to understand how other sources can come into the analysis by the panels and the Appellate Body and how they can be utilized. The following section, therefore, analyzes how policies stemming from other areas of jus gentium (i.e., the scientifically related environmental policies to protect animals) can be evaluated in a WTO case. Moreover, the section illuminates when other sources cannot assist in the determination of the importance of a policy. 5

INCLUSION OF “OTHER LAWS” IN THE ANALYSIS

This section covers many topics in relation to other sources, i.e., how, e.g., MEAs can be included in the analyses. 1. 2.

3. 4. 5. 6. 7.

8. 9.

It explains some general issues regarding MEAs and the WTO. It analyzes the substantive jurisdiction of the DSM in the WTO in order to illuminate which claims can be brought in the DSM of the WTO. It illuminates the issue of applicable law in the DSM of the WTO. Means of including sources are illuminated. Erga omnes issues are illuminated. Issues of coercion into de facto observing de jure norms in MEAs are analyzed. The difference between scientific norms laid down in MEAs and unilaterally founded moral norms are analyzed, including the issue of two colliding policies. The issue of colliding policies are included. A conclusion on value judgment and how this is possible and in what situations other sources can provide assistance is advanced.

5.1 MEAs: Chile—Swordfish and Doha Round Negotiations In the area of trade measures taken pursuant to obligations laid down in MEAs, a few general observations must be made.

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In practice, it is unlikely that a case would be brought in the WTO regarding a trade measure taken pursuant to a MEA, because many MEAs account for almost the same members as those in the WTO; it is therefore likely that those countries, which observe the same rules, will not challenge other countries doing the same. There are, however, special issues surrounding cases where only one of the WTO members is party to a MEA. These issues are analyzed in Section 6. There was, however, one case, the Chile—Swordfish case, which almost led to the worst case scenario; one claim was brought in one DSM and another claim was brought in another DSM. The worst case scenario would be that the two DSMs came to two different results. In the Chile—Swordfish case, the EU brought a claim against Chile in the WTO, and Chile requested formal dispute settlement with the EU in ITLOS.81 The case was, however, settled by a mutual agreement, but it may be revived in both DSMs at a later time.82 The members of the WTO are, however, at present, negotiating the relationship between the WTO and MEAs under the mandate of the Doha Declaration, paragraph 31: With a view to enhancing the mutual supportiveness of trade and environment, we agree to negotiations, without prejudging their outcome, on: (i) the relationship between existing WTO rules and specific trade obligations set out in multilateral environmental agreements (MEAs). The negotiations shall be limited in scope to the applicability of such existing WTO rules as among parties to the MEA in question. The negotiations shall not prejudice the WTO rights of any Member that is not a party to the MEA in question; (ii) procedures for regular information exchange between MEA Secretariats and the relevant WTO committees, and the criteria for the granting of observer status; (iii) the reduction or, as appropriate, elimination of tariff and non-tariff barriers to environmental goods and services.

81 See Chile—Measures Affecting the Transit and Importation of Swordfish, WT/DS193, Settled by mutual agreement in WT/DS193/3, Apr. 6, 2001 [hereinafter Chile—Swordfish]; Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Community), Case No. 7 in ITLOS, Press Release 87, available at http://www.itlos.org. 82

See id.

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We note that fisheries subsidies form part of the negotiations provided for in paragraph 28. Apart from having two tribunals reaching two different results, a direct conflict of laws would also be a type of worst case scenario. As mentioned several times before, the conflict of laws would not be horizontal in the sense that the DSM of the WTO would consider the legality per se of an obligation in a MEA; rather the DSM would consider the legality of a trade measure taken pursuant to an obligation laid down in a MEA. A conflict of laws between, e.g., a MEA and the GATT can only occur if the measure is in violation of the substantive obligations under the GATT and cannot be justified under an exception—most likely the General Exceptions in GATT Article XX. The conflict can thus not be merely with GATT Article I, III or XI; it has to be a measure that, in its final analysis, is not in conformity with the GATT. In this special situation, a conflict of laws between a MEA and the GATT can arise, which evidences how crucial it is that GATT Article XX be utilized to approve measures taken pursuant to MEAs.83 This book, however, posits that is it unlikely that GATT Article XX would not be approved in a case regarding obligations that arose out of a MEA to, e.g., restrict trade in endangered species. As illuminated in Chapter 4, there are few hard law obligations to protect endangered species. CITES contains hard law obligations to enact trade bans on endangered species or products thereof; the Bonn Convention contains hard law obligations to prevent incidental taking of endangered migratory species, but very few other MEAs contain hard law obligations that impedes trade. Having illuminated that the direct conflict of norms relates to a limited area of issues, other issues pertaining to norms laid down in instruments outside the WTO system are analyzed. 5.2 Substantive Jurisdiction of the DSM in the WTO In order to understand how other norms can be considered in the WTO, it is necessary to understand the substantive jurisdiction of the DSM of the WTO. In the DSM of the WTO, only rules laid down in the “covered agreements” can be the subject of claims to be adjudicated before a panel and, if appealed, the Appellate Body.84 For purposes of this book, the 83 For an in-depth analysis of conflict of norms in relation to the WTO system, see PAUWELYN JOOST, CONFLICT OF NORMS IN PUBLIC INTERNATIONAL LAW, HOW WTO LAW RELATES TO OTHER RULES OF INTERNATIONAL LAW (2003). 84 Jurisdiction over claims brought under the “covered agreements” is laid down in DSU Article 1.1 (referring to list of “covered agreements” in Annex 1 to the DSU); cases brought can be violation cases, non-violation or other, as laid down in GATT Article XXIII referenced in DSU Article 3.1.

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agreements in Annex 1A, relating to trade in goods, are all part of the “covered agreements.” Moreover, if any amendment or new agreements are negotiated at some point, they too are included in the definition “covered agreements.”85 Finally, the DSM of the WTO has jurisdiction to hear claims brought under the WTO Agreement itself.86 This means that a claim under, e.g., CITES cannot be brought. The opposite would have been surprising. The more interesting issue is also whether, e.g., CITES could be invoked as applicable law as a defense. This issue relates to whether the CITES could be included in the terms of reference of the dispute. Substantive jurisdiction in abstracto is linked to DSU Article 7 (terms of reference) in concreto, which the Appellate Body explained as follows in the Brazil—Coconut case: A panel’s terms of reference are important for two reasons . . . Second, they establish the jurisdiction of the panel by defining the precise claims at issue in the dispute. We agree, furthermore . . . that the “matter” referred to a panel for consideration consists of the specific claims stated by the parties to the dispute in the relevant documents specified in the terms of reference. We agree with the approach taken in previous adopted panel reports that a matter, which includes the claims composing that matter, does not fall within a panel’s terms of reference unless the claims are identified in the documents referred to or contained in the terms of reference.87 The Appellate Body, in effect, limited the substantive jurisdiction, as laid down in DSU Article 1.1, to “matters” as referenced in the “terms of reference” with identifiable claims.88 Submitting a specific claim at a later stage cannot cure the lack of inclusion of such earlier. This was clarified by the Appellate Body in the Indian—Mailbox case: “there is . . . no basis in the DSU for a complaining party to make an additional claim, outside of the scope of a panel’s terms 85 Amendments are regulated in WTO Agreement Article X. For an elaborated analysis of why amendments, new agreements and protocols are considered part the “covered agreements,” see PAUWELYN, supra note 83, at 43–44. 86

DSU Article 1.1.

87 Brazil—Measures Affecting Desiccated Coconut, WT/DS22/AB/R, Feb. 21, 1997, at 22–23 [hereinafter Brazil—Coconut Appellate Body Report] (footnote omitted). 88 According to DSU Article 6.2, request for establishment of a panel shall include the legal basis of the request.

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of reference, at the first substantive meeting of the panel with the parties. A panel is bound by its terms of reference.”89 However, while the panels cannot, the DSB can change the terms of reference if it is necessary under DSU Article 9 to join multiple complaints.90 The DSB can, however, most likely not change the terms of reference in other situations. 5.2.1

Disagreement on Terms of Reference

In the analysis in Section 5.3 regarding the applicable law, the terms of reference become important. The terms of reference define the entire foundation of the dispute. Therefore, the drawing up of the terms of reference, and to what degree the defending party can influence this, is important to clarify, e.g., whether the defending party, e.g., can invoke CITES as a defense and have this agreement be a part of the terms of reference. The terms of reference are usually the standard terms of reference in DSU Article 7.1. Special terms of reference are laid down in DSU Article 7.3. The standard terms of reference, as laid down in DSU Article 7.1, reads as follows: To examine, in the light of the relevant provisions in (name of the covered agreement(s) cited by the parties to the dispute), the matter referred to the DSB by (name of party) in document . . . and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in that/those agreement(s). The standard terms of reference only includes the claims made by the complaining party(ies). On that background, the issue is what happens if the parties disagree on, e.g., which agreement the terms of reference should include. It should be noted that counter-claims are not possible to invoke; in the even of a counter-claim, this claim must be brought independently in a different proceeding before the DSB.91 89 See India—Patent Protection for Pharmaceutical and Agricultural Chemical Products, Report of the Appellate Body, WT/DS50/AB/R, Dec. 19, 1997, at para. 93 [hereinafter India—Mailbox Appellate Body Report]. 90 This was, e.g., done in U.S.—Gasoline where Venezuela had a panel established, and the terms of reference were changed in order to join Brazil in the case. See, e.g., United States—Gasoline, Panel Established at the Request of Venezuela, WT/DS2/4, July 4, 1995, WT/DS2/4/Corr.1, Aug. 7, 1995. 91

See DSU Article 3.10.

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The issue in this analysis is, however, not counter-claims, but what happens if the defending party disagrees with the claims defining the standard terms of reference. The Brazil—Coconut case illuminates a scenario of such a disagreement. In the Brazil—Coconut case, the parties did not agree on what agreement constituted the applicable law and did thus not engage in consultations before the panel proceedings.92 The complaining party, the Philippines, based its claims on the GATT 1994, whereas the defending party, Brazil, only recognized the “Tokyo Code” as being the applicable law.93 While the Philippines requested standard terms of reference, Brazil objected thereto, and the DSB authorized the Chairman of the DSB with the task of drawing up special terms of reference in consultation with the parties, in accordance with DSU Article 7.3.94 Following, the Chairman succeeded in drawing up special terms of reference with the acceptance of the parties.95 The most important thing to understand from the special terms of reference in the Brazil—Coconut case is the functioning of the DSB. The procedure in DSU Article 7.3, by which the Chairman of the DSB can draw up the special terms of reference in consultation with the parties, can only be granted in the event of consensus in the DSB.96 Clearly, the text of the DSU states: “the DSB may authorize its Chairman to draw up the terms of reference of the panel in consultation with the parties” [emphasis added]. Thus, in the event the DSB does not authorize the Chairman to proceed according to DSU Article 7.3, the standard terms of reference apply—and the panel is established automatically due to the negative consensus rule regarding establishment of panels.97

92 In the event consultations are not possible, the panel is established without; see DSU Article 4.3; Brazil—Measures Affecting Desiccated Coconut, WT/DS22/R, Oct. 17, 1996, paras. 4 and 7 [hereinafter Brazil—Coconut Panel Report]. 93

See id. at paras. 1–2.

94 See id. at para. 9; DSB Meeting held on Mar. 5, 1996, WT/DSB/M/12, Mar. 21, 1996, para. 1. 95 See Brazil—Coconut Panel Report, supra note 92, at para. 10; Coconut, Constitution of the Panel Established at the Request of the Philippines—Note by the Secretariat, WT/DS22/6, Apr. 18, 1996, para. 2. 96

Decisions in the DSB is taken by consensus; see DSU Article Article 2.4 n.1.

The former Chairman of the DSB, Stuart Harbinson, stated, in a DSB meeting discussing terms of reference of a dispute, that the fall-back position was the standard terms of reference in DSU Article 7.1, unless there was agreement on authorizing the Chair of the DSB to consult with the parties on drawing up special terms of reference; see DSB Meeting held on May 18, 2000, WT/DSB/M/80, June 26, 2000, para. 41. The negative consensus rule on establishment of panels is laid down in DSU Article 6.1. 97

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It is, however, unclear whether the Chairman of the DSB, authorized to proceed under DSU Article 7.3, can decide the special terms of reference in the absence of an agreement between the parties during the consultations. This was highlighted in the discussions surrounding the establishment of a panel in the Australia—Salmonids.98 In the course of events, before a panel was established, the former Chairman of the DSB, Ambassador Akao, illuminated the uncertainty of whether a Chairman being authorized to proceed with consultations under DSU Article 7.399 could impose, upon the parties, his or her special terms of reference in the event the parties could not reach an agreement, or whether this should result in the standard terms of reference under DSU Article 7.1.100 In casu, Ambassador Akao decided to have standard terms of reference apply in the dispute, inter alia, based on his preference of the notion that in order for special terms of reference to apply, the parties must agree to such special terms. In his analysis, he, inter alia, mentions “the last sentence of Article 7.3 refers to the situation ‘[w]here other than standard terms of reference are agreed upon.’ If applicable only to Article 7.3, it would suggest that agreement of the parties is necessary. If applicable generally, it seems out of place in Article 7.3.”101 While uncertainty exists, Ambassador Akao’s suggestion is the closest that exists to a clarification of the rules—and his analysis appears reasonable. In conclusion, in the event the complaining party wishes to follow the standard terms of reference, i.e., having its own claims stated in the terms of reference, then it merely needs to object to a DSU Article 7.3 consultation on special terms of reference—if at all requested. It, however, remains somewhat unsure whether an authorization of a DSU Article 7.3 consultation per se authorizes the Chairman of the DSB to draw up special terms of reference in the absence of agreement among the parties or whether the standard terms reference applies. 5.3 Sources or Applicable Law in the DSM of the WTO In respect to the DSM of the WTO, the exercise of determining applicable law is a daunting task when compared to the straightforward task of 98 See Australia—Measures Affecting the Importation of Salmonids, WT/DS21 [hereinafter Australia—Salmonids]; Notification of a Mutually Agreed Solution, Oct. 27, 2000, WT/DS21/10, Nov. 1, 2000. 99 Ambassador Akao was also uncertain about whether the DSB indeed authorized him to proceed with such consultations; see Australia—Salmonids, Communication from the Chairman of the DSB of July 6, 1999, WT/DS21/4, July 23, 1999, para. 1. 100

See id. at para. 3.

101

Id.

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determining the coverage of the substantive jurisdiction as laid down DSU Article 1.1. As illuminated in Chapter 2, Section 6, the Statue of ICJ Article 38 has no counter-part in the text of the DSU, which only refers to the topic of substantive jurisdiction. The analysis thus consists of determining whether applicable law goes beyond the “covered agreements” or is limited thereto. This is done by discerning the text the DSU in the light of it being an agreement created in a sub-system of jus gentium. 5.3.1

Analysis of the DSU on Applicable Law

Starting with the text of the DSU chronologically, Article 3 is the first clause to address the issue—albeit indirectly. Article 3 consists of some general rules for the DSM: Article 3.2 lays down the rule that the DSM of the WTO serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law. Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements [emphasis added]. Article 3.4 lays down that the aim is to “achiev[e] a satisfactory settlement of the matter in accordance with the rights and obligations under this Understanding and under the covered agreements[.]” Article 3.5: All solutions to matters formally raised under the consultation and dispute settlement provisions of the covered agreements, including arbitration awards, shall be consistent with those agreements and shall not nullify or impair benefits accruing to any Member under those agreements, nor impede the attainment of any objective of those agreements [emphasis added]. Thus, according to Article 3 of the DSU, nothing prevents the applicable law from being sources other than the “covered agreements”—as long as these other sources do not affect the rights and the obligations under the covered agreements or impede the attainment of any objective of those agreements. DSU Article 7, addressing the terms of reference, however, imposes an obligation to include the “covered agreements” in its applicable law: “Panels shall address the relevant provisions in any covered agreement or agree-

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ments cited by the parties to the dispute.”102 This indicates that the clause does not explicitly exclude other sources in jus gentium when making “such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in that/those agreement(s).”103 Another clause of the DSU, Article 11, relating to what the “function” of the panels are, states that: “a panel should make . . . an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements, and make such other findings as will assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements [emphasis added].” Finally, DSU Article 19.2 states in part that: “In accordance with paragraph 2 of Article 3, in their findings and recommendations, the panel and Appellate Body cannot add to or diminish the rights and obligations provided in the covered agreements” [emphasis added]. In sum, the panels and the Appellate Body are required to address the relevant provisions cited by—under standard terms of reference—the complainant(s) under the “covered agreements” and other agreements. The purpose of the exercise is to make such findings or other findings that will assist the DSB in making recommendations or give rulings—with the limitation that these do not add or diminish or do not nullify or impair benefits accruing under the “covered agreements,” or impede the attainment of any objective of the “covered agreements.” 5.3.2

Conclusion and Case Law

Based on the analysis of the DSU, this book posits that the applicable law in the WTO DSM is not limited to the range of norms that constitute the coverage of the substantive jurisdiction, i.e., the “covered agreements.” Recall also that while the WTO system is but a sub-system of jus gentium and that DSU Article 3.2 explicitly makes reference to customary rules of interpretation of public international law, nothing seems to preclude the panels or the Appellate Body from including other sources from jus gentium in its decisions.104

102

DSU Article 7.2 (emphasis added).

103

DSU Article 7.1 (emphasis added).

104 See PAUWELYN, supra note 83, at 466; David Palmeter & Petros Mavroidis, The WTO Legal System: Sources of Law, 92 AM. J. INT’L L. 398, 399 (1998). See also PAUWELYN, supra note 83, at 466, n.82 enumerating a long list of articles debating this point.

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Pauwelyn reaches the same result and concludes: “These other rules of international law apply, indeed, automatically unless the DSU or any other WTO rule has contracted out of them.”105 On this point, Pauwelyn also takes note of the panel’s holding, albeit in a footnote, in Korea—Government Procurement:106 We note that DSU Article 7.1 requires that the relevant covered agreement be cited in the request for a panel and reflected in the terms of reference of a panel. That is not a bar to a broader analysis of the type we are following here, for the GPA would be the referenced covered agreement and, in our view, we are merely fully examining the issue of non-violation raised by the United States. We are merely doing it within the broader context of customary international law rather than limiting it to the traditional analysis that accords with the extended concept of pacta sunt servanda. The purpose of the terms of reference is to properly identify the claims of the party and therefore the scope of a panel’s review. We do not see any basis for arguing that the terms of reference are meant to exclude reference to the broader rules of customary international law in interpreting a claim properly before the Panel.107 The panel also posited that: We take note that Article 3.2 of the DSU requires that we seek within the context of a particular dispute to clarify the existing provisions of the WTO agreements in accordance with customary rules of interpretation of public international law. However, the relationship of the WTO Agreements to customary international law is broader than this. Customary international law applies generally to the economic relations between the WTO Members. Such international law applies to the extent that the WTO treaty agreements do not “contract out” from it. To put it another way, to the extent there is no conflict or inconsistency, or an expression in a covered WTO agreement that implies differently, we are of the view that the customary rules of international law apply to the WTO treaties and to the process of treaty formation under the WTO.108 105

Id. at 466 (emphasis in original).

See Korea—Measures Affecting Government Procurement, Report by the Panel, WT/DS163/R, May 1, 2000 [hereinafter Korea—Government Procurement Panel Report]. 106

107

Id. at para. 7.101 n.755.

108

Id. at para. 7.96.

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Therefore, in sum, if the parties to a dispute choose to include other sources in the special terms of reference in a dispute, the panel is not obliged to analyze them, but it is not prevented from doing so either. Moreover, in all cases, i.e., cases based on standard terms of reference and special terms of reference, the panel can utilize other sources in jus gentium within the limits of the DSU as illuminated in Section 5.3.1. 5.4 Other Sources in Interpretation of the Covered Agreements Other sources do find their way into the reports issued on various disputes. This section illuminates how. 5.4.1

Interpretation of Other Sources

Returning to the example of the CITES Agreement as a defense for a trade barrier and presupposing that the CITES was not included in the terms of reference, it has been concluded that the panels and the Appellate Body can utilize CITES as applicable law. It is, however, more likely that the CITES would be utilized not directly as applicable law in determining whether there was a violation of the substantive obligations, but rather in relation to the justification under GATT Article XX. The evaluation of CITES may not be called “applicable law,” but it may be a factor in the analysis in interpreting GATT Article XX. At this stage, it should be noted that other sources have been interpreted by the panels and the Appellate Body. The SPS Agreement and the TBT Agreement, refer to other sources, mainly the international standards in issue. The EC—Sardines case is therefore an example of a dispute where other sources than those laid down in the covered agreements were interpreted. A more interesting example of interpretation of non-WTO sources is, however, found in the EC—Bananas III dispute, where the Appellate Body interpreted the Lomé Convention.109 The EC had argued that the panel and the Appellate Body should not interpret the Lomé Convention but should rely on interpretations of it by the EC and the African, Caribbean and Pacific states parties to the Lomé Convention (ACP countries).110 Both the panel and the Appellate Body, however, found it necessary to interpret the Lomé Convention, because one of the issues in the case surrounded a waiver (pursuant to WTO Agreement Article IX) regarding compliance with GATT Article I (MFN) and the “meaning of the Lomé 109 See European Community—Importation, Sale and Distribution of Bananas, Appellate Body Report, Sept. 9, 1997, WT/DS27/AB/R, at paras. 164–188 [hereinafter EC—Bananas III Appellate Body Report]. 110

See id. at para. 167.

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Convention [therefore] became a GATT/WTO issue.”111 In this case, it was important to establish whether the EC regime for bananas was required by the Lomé Convention, because this language was utilized in the waiver.112 Therefore, this case is different than a case where a party to a dispute argues that it is required to observe rules in, e.g., CITES, because a specific CITES waiver is not granted, and it would not per se be a WTO issue that a country acted pursuant to obligations laid down in another instrument. It, however, remains to be seen how the panels or the Appellate Body would evaluate obligations laid down in other instruments without having established a direct WTO link to the instrument in, e.g., the TBT Agreement or by means of waiver referring to the agreement. The EC—Bananas III case also illuminates the difference between whether a country argues that its trade measure is taken pursuant to a right or an obligation. Clearly, the argument for enacting a trade measure out of an obligation laid down in another instrument is stronger than if the trade measure is taken pursuant to a right, because a right can be foregone.113 Pauwelyn contends that even if the right arose out of a “newer” treaty, the stronger obligation in the “older” WTO Agreement would prevail in order to avoid direct conflict of norms, which would mean that VCLT Article 30 would not be activated.114 Pauwelyn bases this on the understanding of conflict of norms as defined in Guatemala—Cement, where the Appellate Body posits that a direct conflict of norms is to be understood only as where the adherence to one obligation leads to the violation of another.115 Other sources can also be interpreted to give meaning to the terms of the treaty according to VCLT Article 31. Scholars have, in particular, argued this in relation to relation to VCLT Article 31(3)(c).116 This approach is, however, questionable, because these agreements should have the identical

111

See id. at para. 167, where the Appellate Body cites to language utilized by the

panel. 112

See id. at para. 168.

See also Joost Pauwelyn, The Role of Public International Law in the WTO: How Far Can We Go?, 95 AM. J. INT’L L. 535, 551 (2001). 113

114

See id.

See id.; Guatemala—Antidumping Investigation Regarding Portland Cement from Mexico, Report by the Appellate Body, WT/DS60/AB/R, Nov. 5, 1998, at para. 65 [hereinafter Guatemala—Cement Appellate Body Report]. 115

116 See, e.g., Robert Howse, Symposium: The Boundaries of the WTO: From Politics to Technocracy—and Back Again: The Fate of the Multilateral Trading Regime, 96 AM. J. INT’L L. 94, 110 (2002).

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membership as the WTO.117 The difficulty is, however, solved by utilizing the agreements in establishing the “ordinary meaning” of the terms of the treaty in VCLT Article 31(1).118 This was seen in the U.S.—Shrimp case where the Appellate Body interpreted a broad range of instruments in order to give meaning to the term “exhaustible natural resources.” This book, however, in Chapter 8 illuminated that the exercise, which included many other agreements and evolutionary understanding of the term, was obsolete, because the term most likely had the same meaning when GATT 1947 was drafted. Finally, other sources can be utilized as facts, such as evidence that a species indeed is endangered, along the lines of international standards referred to in the SPS Agreement.119 Where the line is drawn between designating, e.g., CITES as applicable law, means of interpretation and fact is probably difficult to establish. This is, moreover, not the purpose with this analysis; what is important to draw from the above analyses is that other sources of law can come into the analysis of GATT Article XX in different ways and for different purposes. 5.5 Erga Omnes or Erga Omnes Partes Obligations In the analysis of trade measures enacted to protect an endangered species outside the territory of the country—and even more so with a lack of nexus with the species—it is important to establish whether a trade measure was established as a response to a violation of an obligation owed erga omnes or erga omnes partes. This is important, because, in the defense of such a measure under GATT Article XX, it is relevant whether the trade measure arose out of a legal right, i.e., legal remedy, under public international law. It should be recalled that the Appellate Body in Guatemala— Cement illuminated that it understood direct conflict of norms to be those where two obligations collided, i.e., not where a legal right came into conflict with an obligation in the WTO Agreements. Therefore, this situation will not be one where the panels or the Appellate Body would seek to interpret the norms in a manner to avoid conflict of norms. Rather, the issue that the measure arose out of a legal right could be a convincing factor in establishing that the policy was important and was subject to a relatively easier scrutiny by the panels and the Appellate Body in terms of GATT Article XX. 117 See PAUWELYN, supra note 83, at 260, who argues that these agreements should only be those, which all WTO Members are parties to and not just the ones in the dispute. 118

See id.

See, e.g., U.S.—Shrimp Appellate Body Report, supra note 32, at para. 132. See also PAUWELYN, supra note 83, at 572. 119

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The erga omnes issues relates primarily to measures taken pursuant to NPR-PPMs, such as the leg-hold trap issue, the issue of time limits on animal transport, the issue of in vivo testing of animals in the cosmetics industry, etc. The reason is that measures taken to “protect” “something” outside the jurisdiction of the country taking the measure is difficult to categorize as important for the country taking the measure, unless the protection is of an interest for the world community—and not “just” to avoid the moral taint of the product in the domestic market. Moreover, certain language in the U.S.—Shrimp Appellate Body Report alluded to the importance of a certain nexus between the country taking the measure and the “things” it “regulated” with the NPR-PPM. 5.5.1

”Nexus” and NPR-PPMs

The U.S.—Shrimp case introduced a new concept in WTO jurisprudence: “nexus.” The Appellate Body in the U.S.—Shrimp case recognized that sea turtles are highly migratory120 and that the species, from time to time, travels into the U.S. jurisdiction.121 However, no one in the case claimed exclusive ownership, “at least not while they are swimming freely in their natural habitat—the oceans.”122 The Appellate Body introduced the issue of nexus by stating: 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).123 Whether this means that NPR-PPMs can only be utilized for migratory species when having sufficient nexus (in the form of physical presence) to the species in issue or whether it was just something the Appellate Body wished to express it had noticed in this case, is difficult to understand. It, however, has great consequences for the approach to the protection of animals outside the jurisdictional limits of a country. If, indeed, the Appellate Body had thought about its reasoning, it may had given some meaningful dicta for commentators and governments as a “careful” indicator as to what it really meant by mentioning nexus.

120

See U.S.—Shrimp Appellate Body Report, supra note 32, at para. 131.

121

See id.

122

See id.

123

See id., para. 133.

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The main problem with the requirement of physical presence in order to establish nexus is that the Appellate Body did not opine on why this was even important in the analysis: nexus is a concept that implies a recognition of the legitimate U.S. interest in the protection of sea turtles, because they “are [ ] known to occur in waters over which the United States exercises jurisdiction.”124 Essentially this means that the U.S. interest in protecting the sea turtles depends on whether it has jurisdiction over some of them sometimes. What is, however, neglected in this analysis is the issue of “common concern.” This means that the entire world community or humankind per se is viewed to have an interest in the conservation of biological diversity. The consequence of not recognizing the policy of conserving endangered species as a “common concern” is that the entire CITES system could be ruled out by the WTO Appellate Body. The issue of the protection of species outside a country’s jurisdiction with no nexus to the country, as laid down in CITES, was also noted by the United States in U.S.—Tuna I.125 Clearly, however, an internal trade ban, such as those laid down in CITES, are internal measures, and they would not receive this kind of scrutiny. Regardless, however, it may be dangerous to require nexus, in the form of having the species on its territory, in relation to all NPR-PPMs just to make sure the policy is legitimate in the eyes of the Appellate Body. Comparing the scenario of the U.S.—Shrimp case to the hypothetical example where, e.g., Denmark enacted the same policy, can illuminate the extreme consequence of requiring nexus for the NPR-PPM protection of an endangered species. The only sea turtle Denmark had, Lucky, was sent back, with national television filming its return, to the Azores and who, until the antenna fell off her shell, had her own homepage.126 Denmark would not have nexus (the Appellate Body’s version of nexus that entails specimens on the territory) with sea turtles (except if the panels and the Appellate Body would count Lucky). When understanding the notion of “common concern,” it appears wrong to recognize the legitimate U.S. right to preserve and conserve migratory endangered sea turtles, if such right is not accorded to, e.g., Denmark. This issue may touch upon a deep-rooted understanding among legal scholars on the topic of “rights and obligations.” Does the issue of common con124

See id.

125

See U.S.—Tuna I, supra note 6, at paras. 3.36, 3.49.

Lucky’s homepage was http://www.lucky.dk, but it does not exist anymore. Try instead http://www.vejret.tv2.dk/article.php/id-1374270.html for coverage of the story. 126

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cern justify a right to the world community to take measures to protect endangered species outside their territory? The easy answer to this question is that the countries in the world community, in terms of general international law, always may utilize NPR-PPMs to protect endangered species, because NPR-PPMs are legal unless the countries contracted out of this unlimited import policy-sovereignty in trade agreements. It may, however, be relevant to examine whether the NPR-PPM formally can be argued to be “counter-measure,” because if that is answered in the positive, then it is only the “injured” state that is allowed to enact such measures. 5.5.1.1 Is a Trade Measure a Counter-Measure? In the WTO system, the members have contracted out of the free choice of remedies. This is, however, only relevant for the issue of violation of a WTO norm and irrelevant in the analysis of remedies for the violation of norms outside the WTO system. The issue of whether a trade measure can be a counter-measure is closely linked to the issue of whether a trade measure, designed to coerce another country into adopting a certain policy, is in violation of any norms in public international law, i.e., whether the NPR-PPM is legal in terms of public international law. If coercive trade measures per se are legal, then it is problematic to—in the same breath—claim that only trade measures (whether coercive or non-coercive) enacted as a counter-measures are legal. This book posited that there is no indication that coercive trade measures are in violation of any norms in public international law. Whether NPR-PPMs, as well as all other trade measures, are legal in relation to the obligations under WTO law is a different issue. There is, thus, no basis for arguing that trade measures per se can constitute counter-measures. The logical deduction is that if a coercive trade measure is legal in public international law, a trade measure (whether coercive or non-coercive) enacted as a response to a violation of an erga omnes or erga omnes partes obligation should not be illegal—such inconsistencies among the legal norms in public international law would render the entire system useless, because countries could claim their trade measure was not enacted as a response to a violation of an erga omnes or erga omnes partes obligation, but rather a unilaterally decided policy of the country—and this argument would legalize the trade measure. The issue of trade sanctions, in the form of limited amounts of NPRPPMs to ensure biological diversity, is, however easy to confuse with

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counter-measures, because, in the WTO system, trade “sanctions” are counter-measures. These are taken in the form of suspending concessions as laid down in DSU Article 22. It is, however, worth noting that a NPRPPM, which is legal in terms of GATT Article XX, would not constitute as a counter-measure in the WTO system, because counter-measures, in the form of suspending concessions, would be otherwise illegal, such as raising tariffs on products (without a possible justification under GATT Article XX). Therefore, the issue of NPR-PPMs may “look” like a trade sanction and a counter-measure, but it is not. NPR-PPMs could also be confused with responses to violations of erga omnes obligations. In terms of responses to violations of erga omnes obligations, the “reactions” are unilaterally determined responses (i.e., not depending on community decisions).127 NPR-PPMs “look” like this scenario, but they are not. Based on those arguments, it can probably be assumed that trade measures, whether coercive or non-coercive, are not considered counter-measures within the meaning of the 2001 ILC Draft Article 48. The issue thus becomes whether a trade measure can be considered a different type of remedy. 5.5.1.2 Do Trade Measures Qualify as Remedies? The other remedies in public international law, which are available to all non-injured states in response to a violation of an erga omnes or erga omnes partes obligations, are: cessation, non-repetition and reparation. A trade measure probably does not qualify within the realm of these measures, which Cassese described as means of diplomatic pressure.128 5.5.2

Conclusion

Based on the above analyses, it must be concluded that for NPR-PPM measures, it may be important to establish nexus between what is protected and the country enacting the measure. For endangered species, it remains to be seen whether the panels and the Appellate Body will accept that all countries in the world community have an interest in preserving biological diversity—or whether they rely on U.S.—Shrimp to establish that only host countries have an interest in preserving the species. 127 See Daniel Bodansky & John R. Crook, The ILC’s State Responsibility Articles: Introduction and Overview, 96 AM. J. INT’L L. 773, 786 (2002). 128

ANTONIO CASSESE, INTERNATIONAL LAW, at 15–18 (2001).

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The fact that the NPR-PPM resembles the scenario where a remedy is enacted pursuant to a violation of an erga omnes obligation does, nevertheless, not make the NPR-PPM a remedy. Therefore, it cannot be argued that a NPR-PPM should be justified (relatively easier) in the GATT Article XX analysis, because it was enacted as a remedy to respond to a wrong-doing in another country. Instead, the argument in GATT Article XX must be that the wrongdoing is of “sufficient” “interest” to the country enacting the NPR-PPM to warrant a trade measure. This may “link” the outwardly directed policy to the country in issue in the situation where a country does not have nexus with an endangered species in the traditional sense. The “interest,” which in terms of biological diversity is called “common concern,” is therefore the key to understanding NPR-PPMs in relation to protection of endangered species. This is, moreover, the case for many other policies as well. One example of this could, e.g., be a violation of human rights norms, e.g., in relation to slave labor, where a country did not wish to import products produced by slave labor. While the country is not directly affected, and it is not injured per se, the entire world community could be argued to be injured and could be argued to have an interest. Either way, these types of arguments may prove convincing to the panels and the Appellate Body in terms of justifying the importance of the policy of the NRP-PPM. The difference between “interest” and “sanctions” (or remedies) therefore appears to be crucial, and the more traditional line of analysis surrounding trade sanctions may also prove to be wrong, because the NPR-PPM does not qualify as a remedy in general international law. The arguments surrounding sanctions are, moreover, impracticable in terms of GATT Article XX, because if there is no direct link between the country and what is sought protected, then one must be established—and an “angry” trade sanction does not establish such a link. A good example of the “sanction” line of analysis has been advanced by Revesz. He analyzed the situation where a country acted in an undesirable fashion: “A sufficiently egregious disregard for human health can be thought of as akin to the violation of a basic human right, and therefore sanctionable. (The use of child labor might be seen as an example of such a violation.)”129 5.6 Coercion into De Facto Membership of MEAs In the event one WTO member is party to a MEA and another member is not, the political opinion among the membership seems to be that 129

See Richard Revesz, Federalism and Environmental Regulation: An Overview, in ENVI-

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the non-party WTO member should not have its WTO rights compromised.130 This may, however, be a theory that cannot be translated into practice. 5.6.1

Internal Measures

In the event a WTO member that is not a party to CITES wishes to export an endangered species as, e.g., fur coats, it will be met with an internal trade ban by other WTO members. Those other WTO members would perhaps not have nexus with the endangered species in issue, but because the trade bans are internal, they may nevertheless be able to successfully invoke GATT Article XX. The issue of sufficient nexus with the species that is sought protected may perhaps not even arise in the analysis of such a measure, because the internal policy does not “regulate” anything outside the jurisdiction of the country. Therefore, in the context of CITES, WTO members not parties to CITES are coerced into the de facto observance of CITES rules, because they, in effect, cannot export endangered species to parties of CITES. 5.6.2

PR-PPMs

The next category to consider is PR-PPMs. Halal and Kosher certification are examples of these types of measures, which probably would be analyzed along the lines of the analysis in U.S.—Gasoline. If the certification requirements were not discriminatory, and there was some evidence of cooperation in relation to verification of whether the religious rituals indeed were followed, such a measure would most likely be justified under GATT Article XX. In relation to the validity or reasonableness of the policy, the PR-PPM would most likely be understood as the internal measure, because the policy direction is inwardly directed. 5.6.3

NPR-PPMs

Based on U.S.—Shrimp, it can be posited that GATT Article XX can be utilized to justify measures to protect endangered species, not merely in the course of trade as in CITES, but in relation to production methods of a totally different product. In order to get the NPR-PPM measure justified under GATT Article XX, the U.S.—Shrimp case illuminated several criteria that needed to be met. If, however, those criteria are met, it is likely that the NPR-PPM will be justified under GATT Article XX. LAW, THE ECONOMY AND SUSTAINABLE DEVELOPMENT 37, 75–76 (Richard L. Revesz et al. eds., 2000) (footnote omitted; emphasis added).

RONMENTAL 130

See Doha Declaration para. 31.

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Translating the U.S.—Shrimp scenario regarding NPR-PPMs into a scenario involving a MEA, one hypothetical scenario could be as follows. Assuming one WTO member is a party to the Bonn Convention and another is not, the one country that is a party to the Bonn Convention shares a migratory species with the non-party. The party observing the norms in the Bonn Convention affords protection against incidental taking in the course of fishing for other fish and enacts a NPR-PPM trade measure to protect the species outside its own jurisdiction. Based on U.S.— Shrimp, the non-party could be coerced into de facto observing the de jure norms in the Bonn Convention, i.e., live up to the certification standard in the NPR-PPM if, however, the non-party wishes to continue to export its products to that particular WTO member. The next issue to address is, again, the issue of nexus. In the above example, regarding the Bonn Convention, the players have identical circumstances to those of the United States and Malaysia in the U.S.—Shrimp case, i.e., they are both host countries for the particular migratory species in issue. If the party to the Bonn Convention had been a country that was not a host country for that particular endangered migratory species, the result may be different. The Bonn Convention does not clarify this issue, because the convention was enacted to secure that host countries protected the species that migrate within their jurisdiction. The Bonn Convention does therefore not oblige non-host countries to create trade barriers in the form of NPR-PPMs to ensure that incidental taking does not occur during fishing for other fish; that responsibility rests with the host countries. It could, however, be argued that if all parties to the Bonn Convention lived up to the obligations laid down in the convention, then other countries would not have to enact NPR-PPMs to protect species. That would also be the case in the “perfect world,” but, unfortunately, the world is, and remains, imperfect for the foreseeable future. Thus, the issue again returns to the status quo: is the notion of common concern in relation to biological diversity a sufficiently strong argument to convince the panels and the Appellate Body that a country fulfills the requirement of nexus? 5.6.4

Not the Obligations, but the Policy

If the panels and the Appellate Body accept that the argument of common concern is sufficient to establish nexus, in effect that means any WTO members, party or non-party to the Bonn Convention, can coerce other WTO members into de facto observing de jure norms laid down in the Bonn Convention. In this manner, the Appellate Body would not have to analyze who is a party or a non-party; whether the NPR-PPM was taken pursuant to the vio-

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lation of an obligation (bilateral or erga omnes), etc., in its GATT Article XX analysis. This would, in turn, mean that it is not the obligations in MEAs that are supplying the “link” to the country taking the NPR-PPM measure in the GATT Article XX analysis; rather, it is the policy laid down in international agreements supplies the “link.” The key question would merely be whether the international community has evidence that a policy is important and, hence, laid down in agreements. More specifically for this example, whether the policy to protect endangered species was laid down in one important MEA or in several MEAs, which is the case, is important. The U.S.—Shrimp case may indicate that this approach is the one chosen by the Appellate Body. The Appellate Body in U.S.—Shrimp noted that neither the United States nor Malaysia were parties to the Bonn Convention.131 But the Appellate Body focused more on understanding the policies relating to the protection of endangered species than on whether the United States and Malaysia were parties to the Bonn Convention. The Appellate Body in U.S.—Shrimp stated that: [T]he protection and conservation of highly migratory species of sea turtles, that is, the very policy objective of the measure, demands concerted and cooperative efforts on the part of the many countries whose waters are traversed in the course of recurrent sea turtle migrations. The need for, and the appropriateness of, such efforts have been recognized in the WTO itself as well as in a significant number of other international instruments and declarations.132 The Appellate Body thereafter cited to Principle 12 of the Rio Declaration, which stated that transboundary and global environmental problems should be based in international consensus.133 Moreover, the Appellate Body cited to: Agenda 21 also calling for international consensus; Article 5 of the Convention on Biological Diversity calling for international cooperation; Bonn Annex 1 calling for concerted action based on a positive consent; and the report of the General Council for purposes of the Singapore Ministerial Conference calling for international cooperation and consensus.134 The Appellate Body concluded, inter alia, on the basis of these

131

See U.S.—Shrimp Appellate Body Report, supra note 32, at n.113.

132

See id. at para 168.

133

See id.

134

See id.

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MEAs, that the preferable means to protect endangered species was by concerted effort, which led to a requirement of “good faith effort” negotiations. This was explained eloquently by the Appellate Body in U.S.—Shrimp 21.5: Given the specific mandate contained in Section 609, and given the decided preference for multilateral approaches voiced by WTO Members and others in the international community in various international agreements for the protection and conservation of endangered sea turtles that were cited in our previous Report, the United States, in our view would be expected to make good faith efforts to reach international agreements that are comparable from one forum of negotiations to the other.135 Requiring good faith negotiations before imposing a PPM preventing the incidental “taking” of a migratory endangered species is not exactly mandated by the agreements cited by the Appellate Body, but it is perhaps the manner in which the Appellate Body—especially viewed in the light that the relevant U.S. legislation136 also called for it—attempts to strike a balance between the coercive element of the PPM and the principle of consensus in the cited agreements. The solution by the panels and the Appellate Body to “ignore” who are parties and who are not, is probably the most advantageous approach to the issue. The MEAs serve as means of understanding whether the policies are “important” and whether the species indeed are endangered, and this may perhaps also be the best way to understand MEAs, which do not necessarily put down obligations to create specific (NPR-PPM) trade barriers.137 Richard Revesz further notes: [W]ith respect to global commons, in some cases trade measures will be expressly permitted by international treaties. Such Treaties, however, often take a long time to negotiate (and even longer time to result in the imposition of specific obligations). In the interim, unilateral trade measures may well be the best available way to protect the global commons.138 135

See U.S.—Shrimp 21.5 Appellate Body Report, supra note 45, at para. 122.

136

See, e.g., Chapter 7, Section 4.3.

See also Philippe Sands, Sustainable Development and International Law, in ENVIRONLAW, THE ECONOMY, AND SUSTAINABLE DEVELOPMENT 369, 402–05 (Richard L. Revesz et al. eds., 2000), who equally posits that it is advantageous to have the Appellate Body consider whether a policy is considered important by the world community, such as biological diversity. 137

MENTAL

138

Revesz, supra note 128, at 76–77 (footnote omitted).

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5.6.4.1 A Brilliant Solution by the Appellate Body for the Environment The approach by the Appellate Body must be applauded in the name of the environment, because it gives value to the policies laid down in MEAs and not merely to the obligations laid down in MEAs. Moreover, the Appellate Body avoids interpreting the MEAs in order to evaluate the specific obligations. The avoidance of interpreting obligations is not merely the avoidance of interpreting other instruments in order to determine the scope of their obligations. The determinations of wrongful acts, i.e., the determination of whether an obligation was violated in a MEA, is not in itself a little task but entails detailed analysis. The ILC Draft Articles 2 and 12 clarify that a wrongful act is a breach of an obligation laid down in a treaty.139 The consequence of breach is eloquently explained by Bodansky and Crook as: “The breach of an international obligation entails two types of legal consequences: it creates new obligations for the breaching state, principally, duties of cessation and non-repetition[parenthesis omitted], and a duty to make full reparation[parenthesis omitted]; and it creates new rights for injured states.”140 This analysis would also have to clarify who the injured party is, which, in turn, means that the Appellate Body would have to examine whether a policy should be understood to be owed erga omnes or bilaterally.141 In relation to the analysis of whether an obligation was violated, the issue of attribution would also have to be analyzed. Bodansky and Crook emphasized that acts by private individuals in relation to the environment (such as the incidental or purposeful taking of an endangered species) could be attributed to the state.142 The other advantage mentioned was the advantage of broadening the scope of policies, which can be “linked” to the state enacting the NPR-PPM in the GATT Article XX justification. The “link” to the state in the form of “interest,” instead of evaluation of whether another country violated an erga omnes obligation, could be illustrated as that the Appellate Body accepts the “link” to be the larger white area below, rather than the small darker area:

139

See also Bodansky & Crook, supra note 127, at 782.

140

See id. at 785.

See Commentaries on the Draft Articles on the Responsibility of States for internationally wrongful acts, adopted by the ILC 2001, available at http://www.un.org/law/ ilc, at 320–22. 141

142

See Bodansky & Crook, supra note 127, at 783.

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Policy area to protect biological diversity Hard law obligations to protect endangered species

The Appellate Body could, by accepting “sufficient nexus” with important community interest, such as biological diversity, once and for all establish that NPR-PPMs have nothing to do with sovereignty and non-intervention in other countries’ internal affairs.143 Rather, the correct manner to approach the subject of NPR-PPMs is, that they are allowed, by virtue of sovereignty, and that it is up to the panels and the Appellate Body in the WTO to decide whether countries, under GATT Article XX, have retained a right to refuse to buy certain products, which are produced in a manner that is unacceptable to that country or perhaps the world community at large. The grounds for justification in a wider area hence overcomes the problems with concluding agreements for each and every topic that may arise in relation to the protection of endangered species in the course of fisheries and other areas. 5.6.5

Conclusion on Coercion

In sum, WTO members may be forced to de facto observe de jure norms laid down in MEAs without their positive consent, which is the usual positivist notion in jus gentium, but, again, if the WTO members do not like the PPM, they can export their products to another country. Whether there indeed is another market for their exports cannot be focus for the Appellate Body or the panels in analyzing trade measures. If the measure can survive a GATT Article XX scrutiny, this is the best assurance the WTO members can get that nearly everything was done to design and apply the trade measure in the least trade restrictive manner possible. 143 See e.g., Frank Emmert, Labor, Environmental Standards and World Trade Law, 10 U.C. DAVIS J. INT’L L. & POL’Y 75, 93 (2003), who analyzes sovereignty in relation to trade measures without establishing how the refusal to import certain goods has anything to do with non-intervention.

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5.7 Differences for Non-Scientific Policies For moral polices, the difficulties are not found in relation to internal policies. Clearly, it may be, in the majority of cases, difficult to opine on whether a moral policy is “important,” because evidence therefore cannot be found in international agreements. However, as posited throughout this book, internal measures can be viewed as non-discriminatory and essentially a sovereign choice of government. Consider, e.g., that a Muslim country does not wish to import pork; it is hard to imagine any other WTO member wishing to force this Muslim country to buy pork. The same is the case for, e.g., alcohol, birth control pills, pornography, drugs, etc. Another way to illuminate this is to imagine how the WTO members would determine the demise of the WTO if a panel or the Appellate Body would state: “country X, should allow for imports of heroin, but label the product with e.g. ‘dangerous and addictive substance’.” In relation to animal welfare measures, the need to second guess internal trade measures may not be so great either. Clearly, the prohibition on fur from cats and dogs cannot be considered as important as, e.g., a ban on heroin, because heroin is dangerous for humans, but the policy may still be important for the citizens and public morals in Denmark. Therefore, when the Danish government could have chosen to make a law stating that fur from cats and dogs could only be imported if they derived from animals, which were skinned post mortem, that trade measure would have been a NPR-PPM and more difficult to justify under GATT Article XX. The Danish government did not need to make a NPR-PPM, because Danish citizens do not need to buy furs from cats and dogs; it is not an important product for Denmark. Hence, the government could resort to the less controversial internal ban. The internal ban on furs from seal pups equally falls in this “easy” internal category of moral measures. The real problem area is those measures that are NPR-PPMs based on morals. The analyses in the U.S.—Tuna cases cannot really be utilized to cast light on the critical issues, because those cases, first of all, are outdated, but even more so because the measure was analyzed as a measure to conserve endangered species. This book posits that it is necessary to screen moral policies in relation to NPR-PPMs, but it would be incorrect and unreasonable to ask the panels and the Appellate Body to do so. The book posits that in the event the WTO membership does not want to make any changes or any new agreements to substitute the current version of GATT Article XX, it is, nevertheless, necessary to adopt an interpretation on morally founded NPR-PPM measures, which are to be analyzed under GATT Article XX (regardless

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what sub-section it will be analyzed under). The reason for this de lege ferenda suggestion can be illuminated by example. 5.7.1

Morally Founded NPR-PPMs

Generally speaking, the role of the panels and Appellate Body thus far is to separate altruistic and protectionist measures through the tests in GATT Article XX. The issue in relation to screening of the policies is what will happen if a policy, which to some or most of the members in the WTO, is an offensive or immoral policy? For purposes of this analysis, it is assumed that the subsequent trade tests are satisfied prima facie, meaning that unless the panels or the Appellate Body in the “policy” test screen the measure or let the unattractive values in the policies inform the subsequent trade measure, this measure would survive or satisfy GATT Article XX and be justified as a legalized trade measure. The obvious example of morals is that a (most likely) wealthy Western WTO member enacts a ban on goods produced by child labor. This policy is an understandable policy for Western countries, although not practicable to implement for some less developed countries. The offensive opposite example is that a WTO member enacts a ban on goods produced by women, because a country, e.g., finds it offensive that women should have to work. In both examples, treaties can illuminate that the world community is against child labor and pro women in the work force,144 but does a majority of countries justify overriding a moral conviction of another culture or country? Can morals be second guessed and by whom? Where is the limit for the world society to decide that regardless of moral, religious or cultural conviction, certain norms are not allowed to pass through the WTO screening of policies? Trade in humans is an obvious example of jus cogens; i.e., it is such an important norm that no country can decide they do not wish to acknowledge the rule. But less offensive examples than trade in humans are harder to analyze. The opposite example from women and children (groups of the human species so weak they (we) need resolutions to protect them (us)), are men; what if a country decided it did not want to trade in goods that were produced by men—this was their moral? Although, the example is not likely to occur, it nevertheless is possible. 144 See Convention on the Elimination of All Forms of Discrimination Against Women, adopted on Dec. 18, 1979, entered into force on Sept. 3, 1981, available at http://www. unhchr.ch; Convention Concerning Minimum Age for Admission to Employment, adopted on June 26, 1973, entered into force on June 19, 1976, available at http:// www.ilo.org; Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms for Child Labour, adopted on June 6, 1999, entered into force Nov. 19, 2000, available at http://www.ilo.org. See also International Programme on the Elimination of Child Labour (IPEC), available at http://www.ilo.org; other conventions on child labor available at http://www.ilo.org.

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Another area that will be difficult to opine upon is the issue of stem cells and whether these were produced with or without consent. This could also be the issue for trade in human organs. Perhaps some countries will, in the future, accept trade in, e.g., kidneys, provided that the donors either consented or were certified brain dead due to accidents. However, the topic for this book is animals and animal welfare measures, and the crucial issue in the analysis is not so much whether the policy is offensive (a rather rare situation), but whether there can be established a “link” in order to justify the measure under GATT Article XX. Such link can probably not be found in any agreements, and the issue becomes what should be evaluated in the analysis of why a country should have a need to “regulate” something in another country? Put differently, why would it be important to distinguish among products? In relation to international trapping standards and the European Slaughter Convention, those countries, which are parties thereto, may be able to utilize those agreements—but it appears difficult to even include such agreements on “core” moral issues. Common sense reasoning can, without much difficulty, conclude that in comparing the U.S.—Tuna cases to the U.S.—Shrimp cases, the U.S. measure to conserve endangered species is more important than the protection of Dolphins (because they are marine mammals and sweet). The WTO membership could perhaps come to the conclusion that morally founded NPR-PPMs should not be allowed to fall under GATT Article XX. This decision may, however, be too rigid, and a more differentiated approach may prove to be preferable. Considering, e.g., the policy to prohibit in vivo testing of animals, this policy is most likely found to be supported by many consumers—and labeling schemes have proven to be difficult to trust for consumers, because a “younger generation” of products were tested on animals, unless, of course, it is produced by a company that was against in vivo testing from the beginning. A total ban laid down in a NPR-PPM may be the only solution to achieve the goal and to ensure consumers that they are not buying lipstick with false labeling. The same may be true for dolphin-safe tuna. As for time limits on transport of live animals and leg-hold traps, these measures may also be important to recognize in the WTO. These measures all evidence production methods that could be changed, if the political will was present. It is possible to catch fur-bearing animals without the utilization of leg-hold traps, and it is possible to Halal slaughter Australian sheep in Australia. Frozen meat can be transported by airplanes or by ships. We do live in the 21st century. However, the question remains: who decides the limitations, and how?

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5.8 Two Opposite Polices? Two Proceedings? The last issue to clarify in this section is the issue of DDT. Most countries have a ban on production and sale of DDT due to, inter alia, its bioaccumulation in large predators, such as the polar bear and, in last resort, in humans. These kinds of bans could be challenged by, e.g., a sub-Saharan African nation due to its need to fight malaria with this very effective pesticide. The challenge obviously needs to be made against a country that has a production of DDT and ceases its production, which, in actuality, means either India or China, once they cease production. The first issue to occur is the challenge of the export prohibition imposed by India or China; this will most likely be in violation of Article XI:I. Thereafter, India or China may argue that Article XX applies, and they, under this clause, should be allowed to cease the sale of DDT (as is intended when ceasing the production). In analyzing Article XX, an interesting scenario happens. The African nation will argue that sub-section (b) cannot prima facie be invoked by the country holding the trade ban, because the invocation must be weighed against the African country’s legitimate right to protect its citizens. Thus far, this has never been an issue in GATT/WTO jurisprudence, but the argument is certainly valid for further thought. Article XX, however, is not designed for such a case and the panels and the Appellate Body would certainly have problems in analyzing such a delicate case. If a panel or the Appellate Body chooses to disregard the claim by the African country, it has the consequence that a country enacting a trade ban, and thus invoking the exception, has a monopoly on the grounds of justification, and whether the other country has more legitimate or equally legitimate reasons for needing the products is irrelevant. This scenario, while being the easiest to legally manage in a dispute, goes against the spirit of the new decisions allowing more flexibility for generic drugs to poor countries under TRIPs, because these decisions were reached with the motive of understanding the demand for such drugs.145 Having a panel or the Appellate Body coming to the opposite result, i.e., that the need for DDT in fighting malaria is irrelevant in analyzing Article XX may thus cause problems, not only with the NGOs but also with the approach to analyzing legitimate claims by countries. If, on the other hand, a panel or the Appellate Body would decide that a weighing of the two policies had to occur, how would the panels or the 145 See, e.g., Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, decision by the General Council of Aug. 30, 2003, WT/L/540, Sept. 1, 2003.

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Appellate Body weigh the interests? The panels and the Appellate Body may, however, chose to rigidly follow the rules of the WTO, which essentially means that the party seeking to justify the illegal trade measure under GATT Article XX is the one that must supply the policy grounds for the measure. Whether the complainant agrees or disagrees with the policy is essentially irrelevant for the GATT Article XX analysis. It should, moreover, be clarified, that even if the DSU does not allow for counter-claims, this does nevertheless, not warrant two proceedings on the issue. The reason is simply that the Sub-Saharan African WTO member is the only complainant; it can claim violation of the substantive obligations under the GATT and argue against the invocation of GATT Article XX. India or China are not complainants; they are merely respondents seeking to justify their otherwise illegal trade measure under GATT Article XX. Hence, there is no mechanism in the GATT rules to facilitate a balancing of policies. It is only the policy invoked by the party invoking GATT Article XX that is analyzed. This may spark another de lege ferenda discussion among the membership to include language in GATT Article XX that facilitates a balancing of policies. 5.9 Conclusion In this section, it was initially illuminated that direct conflict of law between an obligation in a MEA and the WTO rules depends upon whether GATT Article XX is approved or not. Moreover, it was illuminated that the “worst case scenario” in relation to other instruments in jus gentium was avoided in the Chile—Swordfish case, where two opposite decisions could have been rendered by ITLOS and the DSB. These two scenarios are however, and fortunately, rare. In relation to understanding how the panels and the Appellate Body could utilize other sources in the analysis of environmental measures, a few observations were made. It was illuminated that other sources could be included in the special terms of reference, but this was dependent upon agreement among the parties to the dispute. Other sources could, however, be utilized both as applicable law; obligations laid down in other sources could be interpreted by the panels and the Appellate Body; other sources could be utilized as means of interpretation of the covered agreements; and other sources could be utilized as facts or evidence of the importance of a policy. The panels and the Appellate Body therefore have room for maneuver in relation to utilization of, e.g., MEAs in its decisions. It was, moreover, explained that in relation to erga omnes norms, trade measures could not be considered within the realm of remedies, which the world community could respond to in relation to a violation of an erga

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omnes norm. However, what could be derived from the notion of common concern was something that resembles the issue of erga omnes obligations: biological diversity is a value that is of equal importance to all countries, and since no country can be designated as the “injured” country, the entire world community has an interest in protecting endangered species. This interest can establish sufficient nexus with a species, if nexus is held to be important. There is a “link” between the policy pursued and the country pursing it. This is not possible to establish for moral NPR-PPMs, because they do not arise out of agreements; most arise out of unilateral or regional morals. How to deal with these issues, should probably be deferred to the membership. Coercion into de facto observance of de jure norms laid down in MEAs is another issue that was evaluated. It was concluded that this was possible, but the more likely scenario was that NPR-PPMs were taken pursuant to the core policy of conservation of biological diversity, because few hard law norms exist in MEAs to address specific trade-related environmental issues. In this analysis it was illuminated that the Appellate Body did not focus so much on who are parties to the conventions but more on the value of the policies in the conventions—which probably is very good approach to the issue. Finally, it was illuminated that for issues relating to collision of two opposite policies, GATT Article XX did not facilitate any possibility for balancing two policies. 6

DE LEGE FERENDA CONSIDERATIONS

The biggest problem outlined in this book is the morally founded NPR-PPMs. Whether the membership of the WTO will leave this highly political analysis to the panel and the Appellate Body, in the event such case ever arises, or whether the membership will seek to avoid the issue by utilizing its legislative and interpretative powers, remains to be seen. Another identifiable problem is the issue of nexus in relation to protection of endangered species with NPR-PPMs. It may be desirable for the membership to clarify whether the policy of protecting endangered species and the notion of common concern should be recognized as a valid reason for protecting endangered species with NPR-PPMs, regardless of whether they have any physical connection to the country enacting the NPR-PPM. These two issues appear to be the most pressing issues for the membership to opine upon instead of leaving such political decisions to the judicial branch of the WTO. Finally, the membership may consider whether there should be a mechanism by which policies could be balanced against each other in the analysis of GATT Article XX. Essentially all these issues could be clarified with an authoritative interpretation by the General Council as provided for in Article IX of the WTO Agreement.

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While this book posits that the above illuminated issues are the most pressing issues to address for the membership, there are general issues to consider. Chapter 7 illuminated how sub-sections (a), (b) and (g) were antiquated, and this could spark some general discussions of whether GATT Article XX in its entirety—or for the area illuminated in this book— should be amended. The membership may consider clarifying what the scope of each subsection is and perhaps include illustrative lists of examples of policies in order to distinguish one sub-section from another. The scope of sub-section (a) could very well continue to encompass animal welfare as a policy, but it would be preferable if this policy was only allocated in one sub-section. As for sub-sections (b) and (g), these could be rewritten so that environmental protection was explicitly mentioned and perhaps that human health was laid down in a different sub-section than the one relating to the environment. It is, however, more important that the membership drafts the sub-sections so that they clarify how measures that are internal, PR-PPMs and NPRPPMs should be evaluated. Moreover, the relationship to MEAs could be clarified in a manner where it did not only focus on the explicit trade obligations in the MEAs but moreover took the policy aim into consideration— as was done by the Appellate Body in U.S.—Shrimp. A different and more radical solution would be to enact a new agreement for environmental measures and “move” all environmental measures out of the GATT. This approach would resemble that of the SPS and TBT Agreements. 6.1 A TREMs Agreement in Annex 1A A trade-related environmental agreement (TREMs Agreement) could be structured along the lines of the SPS and the TBT Agreements. The advantage of this approach would be that trade-related environmental measures would receive a more “modern” scrutiny, where many different factors could be taken into consideration. The SPS and the TBT Agreements were possible to conclude, because political will to negotiate agreements was present in these areas. While TBT is a general agreement covering all measures regardless of their motivation, the SPS is more specialized, covering only SPS measures. According to the built in lex specialis principle in the two agreements, SPS measures can only be adjudicated under this agreement. This system could thus easily be transferred to other policy areas, such as human health in general, the environment and perhaps even human rights and labor issues. The key to

New Analytical Framework • 321

this type of SPS/TBT system is, however, the existence of international standards. Therefore, an agreement can only function to the extent such standards exists for, e.g., human health, environment, etc. Conversely, in areas, such as animal welfare, religion, and other “core” moral areas, no international standards exist. Conceptually, the TBT and the SPS Agreements differ from the GATT Article XX approach, because both the SPS and the TBT Agreements rely on “encouragement” for conforming to international standards. The approach may, however, also be useful for the environmental area. If the membership was to decide to adopt an environmental agreement utilizing the same conceptual approach as the SPS Agreement, this would mean that a specialized agreement on trade-related environmental measures should be utilized, from a lex specialis principle, rather than both the GATT and the TBT Agreement. The advantages of having an agreement that was based on the principle that if a WTO member was to enact TREMs, it would have to be done in accordance with the TREMs Agreement, which would rely on international agreements concluded in the area. Any deviation from international agreements would thus, as in the SPS Agreement, require a scientific justification. The biggest problem in drafting and applying the TREMs Agreement —apart from the political will or lack of such among the membership—is the reliance of international agreements concluded in the area. In the environmental area, standards are not set on the basis of trading, such as they are in the area of food safety. The difference stems from the fact that it is customary to import and export food, and it is advantageous to adopt certain standards for food safety. In the environmental area, there are few areas, that relate directly to trade and few MEAs addressing trade explicitly. Therefore, many TREMs may be aimed directly at protecting endangered species but may not find its “justification” in an obligation to enact such a TREM—such as the U.S. measure in U.S.—Shrimp, where only the Bonn Convention would mandate prohibition against incidental taking, but not mandate other countries to enact TREMs to ensure this. This illuminates the other difference between most TREMs and SPS measures; the former consists of NPR-PPMs and the latter PR-PPMs. In relation to SPS measures, NPR-PPMs are not really possible, because they aim at protecting human health or production of food inside the territory of the member in issue. The TREMs Agreement could instead rely on international experts to analyze whether a particular TREM was the most preferable manner to protect a species. After such an evaluation (in the event of a dispute), that particular TREM could safely be adopted by other WTO members. However, in

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order to follow the structure of the SPS and TBT Agreements, there had to be certain conditions laid down the TREMs Agreement, which should be followed, such as risk assessment, risk management, notification to the CTE (TREMs Committee), etc. But there would not be any international standards to rely upon, so this issue had to be deferred to international experts. Moreover, policy goals laid down in MEAs could be utilized to verify policies. The fact, nevertheless, remains that WTO members have agreed that it is acceptable to enact and maintain SPS measures, as long as this is done in accordance with the rules laid down in the SPS Agreement. A trade-off has thus been done by concluding this agreement: the reverse burden of proof, vis-à-vis burden of proof in GATT Article XX, means that the country challenging the measure needs to show the measure is not consistent with the SPS Agreement, which benefits the party enacting or maintaining a SPS measure. In return for an easier access and a per se acceptance of SPS measures, the members have diminished their possibilities for unilateral deviation from internationally agreed standards by requiring a scientific justification.146 The issue is whether the same bargain is possible for a TREMs Agreement due to the lack of international standards. 7

CONCLUSION

This chapter illuminated that by dividing trade measures into the three categories (internal, PR-PPM and NPR-PPMs), the analysis of GATT Article XX is easier to understand. The analysis initially concluded that coercive trade measures, i.e., PPMs are not in violation of any norms in general international law. Moreover, it was clarified that PPMs or other trade measures cannot be considered remedies. In the understanding of PPMs, it was illuminated that the policies of the PR-PPMs are inwardly directed, whereas the policies of the NPR-PPMs are outwardly directed. Therefore, when analyzing the policy and evaluating it for purposes of categorizing it as an important or unimportant policy, the NPR-PPM cannot point to the policy being aimed at protecting something within the jurisdiction of the country enacting the trade measure. It is therefore more problematic to evaluate the policy of a NPR-PPM than PR-PPM and internal measures. Because the NPR-PPM has an outwardly directed policy, it is useful to validate the policy in other sources, such as MEAs. The analyses also illuminated why issues of jurisdictional limits may be important in relation to 146

See, e.g., SPS Article 3.

New Analytical Framework • 323

NPR-PPMs, in particular, in relation to the link between the country taking the measure and the policy pursued. It was also illuminated why the membership of the WTO (or the panels and the Appellate Body) should consider whether nexus, in the form of physical presence, with endangered species should be required in relation to protecting them by utilization of a NPR-PPM. In relation to morally founded NPR-PPMs, it is not possible to find any guidance for whether the policy per se is of interest for the country, because these policies, most often, are unilateral by definition. This book strongly urges the membership of the WTO to consider whether limits and guidelines for utilization of morally founded NPR-PPMs should be determined by the panels and the Appellate Body or by the membership. It may be a very difficult task to defer to the judicial branch of the WTO. The book has also illuminated that certain NPR-PPMs probably are, and should be, “easier” to justify under GATT Article XX. When comparing the U.S.—Tuna cases and the U.S.—Shrimp case, it appears reasonable and desirable that the U.S. measure to protect endangered sea turtles passed the tests in the exception, whereas the U.S. measure to protect nonendangered dolphins did not.147 The book, however, also posits that it is perhaps not too late in the day to recognize certain morally based NPRPPMs, but clear guidelines should be adopted by the membership in order to avoid the slippery slope problem. Finally, the analysis illuminated how the trade tests in the “necessity” test and the chapeau analysis are more difficult for PPMs than for internal measures, because extra tests are included regarding cooperation in relation to PPMs. Based on all the above observations, the advantages of systematic framework in Thesis 2 are considered verified.

147

See also Sands, supra note 135, at 402.

CHAPTER 10

CONCLUSION This book illuminated the differences between animal protection in the environmental area and in the area of animal welfare. The main difference between these two areas is not that one is anthropocentric and the other is not. Environmental protection of animals inherently stems from the notion that the environment has a value for mankind, but animal welfare protection can also be considered as being anthropocentric. Animal welfare policies can stem from the notion that human beings should act in a certain civilized manner towards animals; this is anthropocentric. Animal welfare could also be viewed as a “right” for animals to be treated in a certain manner—mainly because humans should respect animals’ feelings. Regardless, however, whether the policies are ecocentric or anthropocentric, the difference between the two areas is that they stem from different policies. Environmental protection of animals stems from scientifically verifiable data regarding biological diversity; i.e., it can be verified whether the species is endangered. The primary focus of environmental protection of animals is species protection. Whether the individual specimens are treated badly is not of concern in the environmental protection of animals; the only focus is to avoid extinction of species and to improve the stocks of species. Protection of animals in international environmental law focuses on endangered species, with special rules for those species that are migratory. There are, however, no hard law rules that provide for an overall protection of endangered species. Rather, the protection is fragmented and laid down in different MEAs that protect endangered species against certain, well-defined, threats. The most important agreements for purposes of this book are CITES and the Bonn Convention, where the former impedes trade in endangered species or products thereof, and the latter protects migratory endangered species from a variety of threats, including the purposeful or incidental taking. Animal welfare protection is not laid down in any international agreements. The reasons for the lack of international interest and consensus in the area are most importantly to be found in the nature of animal welfare policies. These policies stem from morals where each culture perceives animals in different ways; in some cultures, humans keep dogs as pets; in others, they eat dogs. In some cultures, humans are dependent on animals as work animals; in others they transport horses around with expensive wool covers. In some cultures, humans consider cows holy; in others, they eat 325

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cows. Moreover, animal welfare concerns stem from how humans evaluate what the conditions for animals should be. This is not limited to an evaluation of the veterinary health, but also to an understanding of the animals’ feelings, in whatever manner human beings understand the nature of animals’ feelings. Therefore, while sheep brought up in Australia run the risk of being shipped alive to Saudi Arabia and sail for many days, Danish sheep merely run the risk of being transported for a few hours—and the Danish population has signed petitions to have common EC limits as a maximum eight hours transport. Animal welfare protection is specimen protection, which is defined primarily from human beings’ feelings and morals. In terms of trade rules, many examples of environmental trade measures to protect animals and animal welfare trade measures can be put forth. The issue uncovered in this book was whether these trade measures are legal in terms of the WTO rules. The book primarily analyzed GATT Article XX, which contains conditional rights for WTO members to enact and maintain certain trade measures that are otherwise inconsistent with the substantive obligations under the GATT. The book focused on sub-sections (a), (b) and (g) of the exception and verified Thesis 1, which primarily posited that in the GATT Article XX analysis, it was important to distinguish among the sub-sections. Thesis 1 posited (primarily) that by including more than one sub-section in the analysis of one single trade measure, the principle of effectiveness was violated, unless the reasons for the overlap among the sub-sections stemmed from an inherent overlap in the treaty text. In order to justify that the principle of effectiveness was utilized, the book concluded that two operative steps were necessary. Firstly, the principle of effectiveness must come into consideration when words, clauses or passages of the treaty text are found to be redundant or superfluous. Secondly, it has to be evaluated whether a different interpretation is possible to cure the redundancy. The interpretation is, however, limited by the notion that the treaty interpreter must not revise the treaty text. The book therefore posits that a statement of the principle of effectiveness is utilized must be backed up by an analysis of whether a different interpretation is possible. The result, i.e., to find that two sub-sections apply to the same trade measure may be correct. The crucial point to understand is, however, that when a result is so controversial as having two sub-sections applying to the same trade measure, an analysis of whether this was caused by an inherent textual overlap must be made. It was concluded that overlap among sub-sections (a), (b) and (g) was difficult to avoid, because the sub-sections are antiquated in terms of their policy scope, and sometimes, all three of them overlap. The main problem with this is, however, not to be found in an academic debate regarding how

Conclusion • 327

to utilize the principle of effectiveness, where some people may find my interpretation rather strict and time consuming. The problem is rather that animal welfare measures are analyzed in the same sub-sections as environmental measures. Thus far, the GATT panel on U.S.—Tuna I and U.S.— Tuna II did not notice (or perhaps understand) the difference between an animal welfare policy and an environmental policy. There is a considerable risk of having the two mixed up in the analysis without clear definitions of which is which. The book urges the membership of the WTO to revise GATT Article XX so that one sub-section covers moral issues, another human health and a third environmental issues. However, should the membership not do this, and should the panels and the Appellate Body continue to include whatever sub-sections the defending party invokes, the book proposes a manner in which moral measures can be distinguished from environmental measures—regardless which sub-section the policy is analyzed under. This suggestion is to utilize the principles from the precautionary principle and require scientific risk assessments in order to justify a policy as an environmental or human health policy. This scientific risk assessment need not necessarily be conclusive; i.e. there can still be tests that need to be made, but there has to be certain scientific material—which points in the direction that there is an actual risk—and not merely a hypothetical risk. If no risks to human health or the environment can be verified, such a measure must be categorized as a moral measure and be subject to a more “rigid” scrutiny in the subsequent trade tests in GATT Article XX. The book, finally, concludes that all issues relating to the understanding of the policy should be analyzed under the “policy” test, which is a neglected test in terms of GATT Article XX, despite the fact that it is the only test where it would be natural to consider what kind of policy the trade measure arose out of. Thesis 2 elaborated more on the issue of which tests could be made more “rigid” and in which situations. Moral measures need not always be met with more “rigid” GATT Article XX tests; this depends on the type of measure that is utilized. Thesis 2 posited that by dividing trade measures into three categories, the analysis of GATT Article XX is easier to understand. The division into these three categories was posited to be a systematic framework for the analysis of GATT Article XX. The three categories consist of two inwardly directed types of measures—the internal and the PR-PPM—and one outwardly directed measure—the NPR-PPM. It should be clarified that what is inwardly and outwardly directed about these trade measures are the policies they pursue. The effect of the measures can be divided in a different way; i.e., both types of PPMs “regulate” “something” in another country, such as a requirement to harvest for shrimp in a sea turtle friendly manner.

328 • The WTO, Animals and PPMs

Thesis 2 was verified by illuminating the analytical advantages proposed by this analytical framework. It was illuminated how the different types of trade measures had to satisfy different tests in the GATT Article XX analysis, and the NPR-PPM category was the most problematic. The NPRPPM “regulates” “something” in another country, and the crucial part of the GATT Article XX analysis is whether a “link” can be established to the country taking the NPR-PPM and “what is protected.” In U.S.—Shrimp, the Appellate Body defined this link, this nexus, as whether sea turtles sometimes came into the U.S. territory. This book, however, advocates that the notion of common concern in relation to biodiversity can establish such nexus; i.e., all countries, all humans, have a legitimate interest in the preservation of biological diversity, which per se gives them an interest strong enough to justify the utilization of NPR-PPMs. It was also illuminated how WTO members can coerce other members into de facto observance of de jure obligations laid down in MEAs that none of the members are parties to. It is, however, more interesting to analyze the manner in which the Appellate Body in U.S.—Shrimp utilized the policies of MEAs to establish that a policy was important, rather than whether there were specific obligations in those MEAs to enact that particular NPRPPM. Few MEAs mandate NPR-PPMs or any kind of trade measures, because the MEAs, by and large, are established to create obligations on the host countries to protect the endangered species. Hence, none of the MEAs address whether other countries, holding a common concern for biological diversity, should or could enact trade measures to assist and/or ensure protection. Finally, the book proposed that the membership should decide how to judge morally founded NPR-PPMs, instead of leaving the decision up to the panels and the Appellate Body. Such a decision is very difficult to make for the judicial branch of the WTO, because there is no guidance to be found in agreements on morals. This book posited that animal welfare measures should not per se be excluded from GATT Article XX, because animal welfare—along the lines of other morally founded areas—are important to many people. However, morally founded NPR-PPMs should be met with a more “rigid” GATT Article XX analysis.

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Canada—Measures Affecting Exports of Unprocessed Herring and Salmon, adopted Mar. 22, 1988, BISD 35S/98 [Canada—Herring—Salmon Japan—Trade in Semiconductors, adopted May 4, 1988, BISD 35S/116 United States—Section 337 of the Tariff Act of 1930, adopted Nov. 7, 1989, BISD 36S/345 Thailand—Restrictions on Importation of and Internal Taxes on Cigarettes, adopted Nov. 7, 1990, SD10/R-37S/200 (Oct. 5, 1990) [Thailand— Cigarettes] United States—Restrictions on Imports of Tuna, DS21/R- 39S/155, Report of the Panel, Sept. 3, 1991, unadopted [U.S.—Tuna I] United States—Measures Affecting Alcoholic and Malt Beverages, adopted June 19, 1992, BISD 39S/206 [U.S.—Malt Beverages] United States—Restrictions on Imports of Tuna, DS29/R, Report of the Panel, June 16, 1994, unadopted [U.S.—Tuna II] United States—Taxes on Automobiles, DS31/R, Oct. 11, 1994, unadopted WTO: DS2 United States—Standards for Reformulated and Conventional Gasoline, Report of the Panel, WT/DS2/R, Jan. 29, 1996 [U.S.—Gasoline Panel Report] United States—Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, Apr. 29, 1996 [U.S.—Gasoline Appellate Body Report] DS8/10/11 Japan—Taxes on Alcoholic Beverages, Report of the Panel, WT/DS8/R, WT/DS10/R, WT/DS11/R, July 11, 1996 [Japan—Alcohol Panel Report] Japan—Taxes on Alcoholic Beverages, Report of the Appellate Body, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, Oct. 4, 1996 [Japan—Alcohol Appellate Body Report] DS12/14 European Communities—Trade Description of Scallops, WT/ DS12/R, WTDS14/R, Aug. 5, 1996 DS 18 Australia—Measures Affecting Importation of Salmon, Report of the Panel, WT/DS18/R, June 12, 1998 [Australia—-Salmon Panel Report]

334 • The WTO, Animals and PPMs

DS 22 Brazil—Measures Affecting Desiccated, Report of the Panel, WT/ DS22/R, Oct. 17, 1996 [Brazil—Coconut Panel Report] Brazil—Measures Affecting Desiccated Coconut, Report of the Appellate Body, WT/DS22/AB/R, Feb. 21, 1997 [Brazil—Coconut Appellate Body Report] DS26/48 European Communities—Measures Concerning Meat and Meat Products, Report of the Panel (Canada), WT/DS48/R/CAN, Aug. 18, 1997 [EC— Hormones Panel Report (Canada)] European Communities—Measures Concerning Meat and Meat Products, Report of the Panel (USA), WT/DS26/R/USA, Aug. 18, 1997 [EC— Hormones Panel Report (USA)] European Communities—Measures Concerning Meat and Meat Products, Report of the Appellate Body, WT/DS26/AB/R, WT/DS48/AB/R, Jan. 16, 1998 [EC—Hormones Appellate Body Report] European Communities—Measures Concerning Meat and Meat Products, Original Complaint by the Unites States, Recourse to Arbitration by the European Communities Under Article 22 of the DSU, WT/DS26/ARB, July 12, 1999 DS27 European Community—Importation, Sale and Distribution of Bananas, Appellate Body Report, Sept. 9, 1997, WT/DS27/AB/R [EC—Bananas III Appellate Body Report] DS33 United States—Measures Affecting Imports of Woven Wool Shirts and Blouses From India, Report of the Appellate Body, WT/DS33/ AB/R, Apr. 25, 1997 [U.S.—Shirts and Blouses Appellate Body Report] DS48-49/51-54/58-59 United States—Definitive Safeguard Measures on Imports of Certain Steel Products, Report of the Appellate Body, WT/DS48/AB/R, WT/DS49/AB/ R, WT/DS51/AB/R, WT/DS52/ AB/R, WT/DS53/AB/R, WT/DS54/AB/ R, WT/DS58/AB/R, WT/DS59/AB/R, Nov. 10, 2003 [U.S.—Steel] DS50 India—Patent Protection for Pharmaceutical and Agricultural Chemical Products, Report of the Appellate Body, WT/DS50/ AB/R, Dec. 19, 1997 [India—Mailbox Appellate Body Report]

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336 • The WTO, Animals and PPMs

European Communities—Measures Affecting Asbestos and AsbestosContaining Products, Report of the Appellate Body, Mar. 12, 2001, WT/DS135/AB/R [EC—Asbestos Appellate Body Report] DS152 United States—Sections 301–310 of the Trade Act of 1974, Report of the Panel, Dec. 22, 1999, WT/DS152/R [U.S.—Section 301 Appellate Body Report] DS161/169 Korea—Measures Affecting Imports of Fresh, Chilled and Frozen Beef, Report of the Panel, WT/DS161/R, WT/DS169/R, July 30, 2000 [Korea— Beef Panel Report] Korea—Measures Affecting Imports of Fresh, Chilled and Frozen Beef, Report of the Appellate Body, WT/DS161/AB/R, WT/DS169/ AB/R, Dec. 11, 2000 [Korea—Beef Appellate Body Report] DS163 Korea—Measures Affecting Government Procurement, Report by the Panel, WT/DS163/R, May 1, 2000 DS193 Chile—Measures Affecting the Transit and Importation of Swordfish, WT/DS193, Settled by mutual agreement in WT/DS193/3, Apr. 6, 2001 [Chile—Swordfish] DS231 European Communities—Trade Description of Sardines, Report of the Panel, WT/DS231/R, May 29, 2002 [Sardines Panel Report] European Communities—Trade Description of Sardines, Report of the Appellate Body, WT/DS231/AB/R, Sept. 26, 2002 [Sardines Appellate Body Report] DS246 European Communities—Conditions for the Granting of Tariff Preferences to Developing Countries, Report of the Panel, Dec. 1, 2003, WT/DS246/R [EC—GSP Panel Report] European Communities—Conditions for the Granting of Tariff Preferences to Developing Countries, Report of the Appellate Body, Apr. 7, 2003, WT/DS246/AB/R [EC—GSP Appellate Body Report]

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INDEX

Animals 1–2, 5–6, 12, 31, 41–106 Animal rights 84 Animal welfare 1–2, 5–6, 44, 83–106 Environment/biodiversity 1–2, 5–8, 41–81 Legal Status 83–87 Testing 104–105, 257–258 WTO 110–112, 114, 125, 127–128, 144, 151, 155, 217–222, 230, 241–258, 303, 314, 316, 320 Apes 86, 254–255 Applicable law ICJ 29 DSU 30, 290, 293–302, 318 Asbestos case (see EC-Asbestos case) Baby seals 100–102, 257 Ban (see Total ban) Bilateral nature of jus gentium 24–26, 69, 113, 221, 310, 312 Bio-accumulation 72–74, 81 Biodiversity 2, 35, 37, 41–81, 232, 251–253, 255, 328 Common concern 48–49, 52, 66, 68–69, 80, 304, 307, 309, 319, 328 Bonn Convention 56–59, 63, 80, 292, 309–310, 321 Burden of proof 19, 126, 136–141, 164, 322 Cartegena Protocol 51, 71–72 Cats 100–101, 102, 257, 314 CFC 75–76 Chapeau analysis 16, 38, 122, 126, 156–157, 160, 167–174, 190, 194, 205, 213–214, 217, 227, 235, 261, 277–281, 283, 285–288, 323

CITES 52–56, 63, 65, 80, 234, 235, 247, 249–251, 254, 292–294, 300–302, 304, 308 CO 2 77 Common concern 48–49, 52, 66, 68–69, 80, 304, 307, 309, 319, 328 Consensus 4, 38, 39, 185, 310, 311, 325 WTO decision-making 113, 117, 295 Negative consensus 113, 117, 295 CTE 155, 322 Denmark 18, 53, 63, 93, 98, 100–101, 153, 174, 183, 304, 314 DDT 72–80, 255, 317 Dogs 88–89, 99, 100–101, 102, 104, 257, 314, 325 Dolphins DSB 113, 117, 118, 198, 294–298, 318 Special session 113 EC-Asbestos case 9, 133, 135, 143–145, 151–152, 288 Sub-sections 159, 162, 176, 191, 233, 238–240, 276–277, 279 Chapeau analysis 167, 169, 173, 278 EC-GSP case 157, 159–160, 175–177, 230–231 EC-GMO case 71, 128–132, 135, 179, 181 Endangered species 13, 26, 29, 44, 51–56, 58–59, 62–70 WTO 148, 150–151, 153, 166, 234, 241, 248–252, 254–255, 285, 292, 302, 304–314, 316, 319, 321, 323 351

352 • The WTO, Animals and PPMs

Enforcement 24–25, 30, 38, 154, 164, 217, 280 Environment 1–2, 6–7, 31–40, 41–81 International environmental law 22–23, 41–81 Sustainable development 31–40 WTO 8–12, 109–114, 125, 128–132, 144, 155, 186, 203–204, 216–219, 232, 234, 236, 238–239, 249, 252–253, 255, 260, 272, 291, 312–313, 318–321 Erga omnes 24–26, 47, 66, 68–69, 76, 77, 80, 290, 302–303, 305–307, 310, 312, 318–319 European Union 18, 42, 71, 98, 103–106, 113–114, 116, 139, 198, 291 Fur 12, 99–104, 151, 257, 308, 314, 316 Gasoline case (see US-Gasoline case) Globalization 1, 2–5, 21, 31 Genetically modified 70–71, 129 GMO 70–71, 128–132, 135, 179, 181 GMO case (see EC-GMO case) GSP case (see EC-GSP case) Habitat 8, 43, 45, 51–52, 57–61, 63–65, 67, 254–255, 303 Havana Charter 107–108, 212, 216–217, 220–222, 242, 245, 248 Negotiation records (see ITO) Horses 93, 99, 256, 325 Human health 42, 78, 81, 125, 128, 145, 155, 158–159, 176, 180, 186, 191, 231, 233–237, 259–260, 276, 288, 307, 320–321, 327 Internal trade measure 269, 275–276, 314

International standard Animal welfare 89, 91 GATT analysis 236, 252, 289, 302, 321–322 SPS/TBT 133, 138–141, 178–179, 183–187, 300, 302, 321–322 Interpretation 14–17, 30, 115–123, 129, 130, 138, 151, 165, 189, 196–206, 211–215, 222–228, 230, 277, 283, 297–302, 314, 319 Evolutionary 129, 196, 204–206, 215, 226, 230, 247, 302 Principle of Effectiveness 15–17, 196, 201, 222–228, 241–243, 246–248, 258–259, 283, 326–327 Invasive alien species 60, 70–71, 129, 153 Inwardly directed 262, 271–272, 279, 289, 308, 322, 327 ITO 107–109, 126, 212, 217, 222 Negotiation records 109, 205, 211–212, 214–215, 217–218, 242–244, 246, 248, 266 IUCN Red list 52 Jurisdiction 29, 30, 32, 38, 45, 46, 47, 56, 57, 74, 75, 76, 81, 110, 111, 149, 200, 262, 263, 264, 266, 267, 268, 272, 278, 289, 290, 292, 293, 297, 298, 303, 304, 308, 309, 322 Jus gentium 6–9, 21–30, 31, 40, 41, 70, 115, 121, 197, 211, 232, 275, 290, 297–300, 302, 305–306, 313, 318 Leg-hold traps 102–104, 256, 316 Lucky 304 Malaria 72–73, 79, 81, 317 Marine mammals 14, 61–63, 102, 233, 250, 316

Index • 353

Measures (see Trade measures) Migratory species 42, 56–59, 63, 72, 80, 171, 234, 235, 267, 292, 303, 309–310, 330 Morals 13, 87, 157–158, 174, 208–209, 218, 228–237, 249, 253, 256, 259–260, 288, 314, 315–317, 319 Moral trade measures (see Trade measures) Public Morals 125, 152, 157–158, 174, 208–209, 218, 228–237, 256, 314 MEA 7, 13, 18, 23–24, 58–59, 70, 114, 270 MEA trade measure 114, 235, 249, 270, 290–292, 318–322 MEA coercion into 307–314 Natural resources 31, 35, 37, 41–81 GATT Article XX 155, 161, 165, 167, 191–192, 195, 203–207, 234–235, 240–250, 252–253, 261, 263, 267, 302 Havana Charter 215–222 Sovereignty 32–33, 65–69 Nexus 289, 302–304, 306–309, 313, 319, 323, 328 NO x 75

POPs Convention 42, 72, 78–79, 255 PPM 5–6, 13, 261, 271–275 Contemporary approach 269–271 Counter measure 305–307 Extraterritoriality/Extrajurisdicti onality 268–269 Jurisdiction/sovereignty 13, 262–266 Erga omnes 303 Historical approach 266–269 Nexus 303–305, 312–313 PR-PPM 15, 144, 271, 272, 278–279, 282–283, 288–289, 308 NPR-PPM 15, 144–145, 271, 272, 278–279, 288–289, 303–307, 308–320 Trade tests 276–288 Precautionary Principle 179, 235–236, 241, 248, 252–253, 260, 327 Precedents 14, 115–123, 159, 277 Principle 21 46–47, 74–77 Public international law (see Jus gentium) Public morals (see Morals) Pups (see Baby seals)

Orangutan 64–65, 69, 254–255 Outwardly directed 9, 12, 261–263, 271, 279, 307, 322, 327 Ozone layer 42, 47, 76

Ramin 65, 254 Ramsar Convention 59–61, 63 Red list 52 Risk assessment 179–182 Rotterdam Convention 42, 78–79

Polar Bear 72–74, 81, 250, 255, 317 Policy direction 6, 271–272, 308 Policy test 12–13, 157–162, 175–176, 189–190, 192, 196–197, 201–203, 207–208, 222, 226, 231, 233, 236–237, 239, 241, 246, 251, 258–259, 275–276, 282, 315, 327 POPs 72, 78–79, 99, 255

Sea turtles 148–149, 160, 166, 169–172, 192, 234, 241, 247–248, 272–273, 285, 303–304, 310–311, 323, 328 Shrimp case (see US-Shrimp case) Slaughter 90–99, 233, 250, 255–256, 274, 316, 330 Halal 93–96, 98, 101, 233, 255–256, 272, 274, 308, 316

354 • The WTO, Animals and PPMs

Slaughter (continued) Kosher 93, 96–98, 233, 255–256, 272, 282, 308 SO 2 75 Soft law 28, 32, 39, 40, 46, 230 Sovereignty 7–8, 22–23, 32–33, 45–46, 48–49, 56, 61, 65–67, 80–81, 262–266, 305, 313 Specimen protection 83, 249, 326 Species protection 44, 83, 241–242, 251, 325 Standing 24–27, 113 Animals and Trees 50, 84–87 Stockholm Declaration 33–39, 43, 46, 49, 74 Sub-sections 154, 157–161, 203–210, 216–219 Differences 191–192 Choice between 192–195, 241–258 Overlap 195–196, 222–226 Sustainable Development 3–6, 31–39 Environment 7, 42–44, 49, 50, 62, 77 WTO 8–9, 11, 109–111, 175, 204, 230, 234, 243 Terms of reference 198, 210, 293–300, 318 Special terms of reference 294–296, 300, 318 Theoretical Foundation 12–18 Total ban 75, 92, 147, 150, 152, 273, 316 Transportation of animals 90, 91, 94, 96, 98–99, 128, 233, 256, 303, 316, 325 Unilateral (trade) measures 4, 10, 113–114, 230, 269–270, 275, 289–290, 305–306, 311, 319, 322, 323 United States 10, 38, 51, 71, 84, 103, 108, 168–172, 250–251, 273

US-Gasoline case 144, 198, 205, 278–279, 288–289, 308 Sub-sections 162, 165–167, 192, 193, 206–208, 210, 246–247, 281–285 Chapeau analysis 167–174, 286–288 US-Shrimp case 148–149, 262, 272–273, 308–309, 311, 316, 320–323 21.5 case 9–11, 269–270, 280, 311 Sub-sections 14–15, 165–167, 192–195, 204–206, 215, 219, 226, 234, 242–243, 246–248, 285–286, 302–305 Chapeau analysis 167–174, 213, 278, 280, 286–288 Whales 61–64, 252–253 Washington Convention (see CITES) World Heritage Convention 59–61, 63, 68

WTO Agreement Preamble 109 Article IX 13, 110, 117, 118, 119, 300 Article X 293 DSU Article 1 113, 292, 293, 297 Article 2 295 Article 3 15, 16, 113, 116, 118, 121, 136, 197, 292, 294, 297, 298, 299 Article 4 112, 114, 116, 295 Article 6 112, 114, 116, 117, 293, 295 Article 7 111, 112, 293, 294, 295, 296, 297, 298, 299 Article 9 294 Article 10 294 Article 11 210, 298 Article 12 117 Article 16 112, 116

Index • 355

Article 17 112, 116, 135 Article 19 298 Article 21 120, 122, 169, 170, 279 Article 22 8, 24, 113, 137, 306 Article 23 24 Article 26 113, 114 GATT Article I 141, 159, 265, 292, 300 Article III 142–146, 176, 187, 228, 265, 281 Article XI 146–154, 217, 265 Article XX Chapeau16, 38, 122, 126, 156–157, 160, 167–174, 190, 194, 205, 213–214, 217, 227, 235, 261, 277–281, 283, 285–288, 323 (a) 13–15, 152–155, 157–158, 174, 189–192, 207–211, 213, 217–218, 228–232, 234–235, 237, 239–242, 247–249, 251–252, 256–257, 260, 261, 270, 272–273, 320, 326 (b) 13–15, 110, 112, 127, 132, 154–155 (g) Article XXIII 24, 113, 135, 154, 197, 292

SPS Preamble 128, 219 Annex 129, 130, 182, 219 Article 1 135 Article 2 140, 177, 178 Article 3 138, 139, 140, 141, 178, 179, 252, 323 Article 4 274 Article 5 139, 177, 178, 179, 236, 241, 252 Article 8 181, 182 TBT Preamble 134 Annex 133, 140, 146, 184, 185 Article 1 133, 135 Article 2 135, 140, 141, 183, 184, 186, 281 VCLT Article 26 28 Article 30 301 Article 31 118, 197, 198, 200, 201, 203, 205, 222, 242, 244, 301, 302 Article 32 118, 197, 199, 203, 205, 211–216, 227, 242, 244 Article 33 197 Article 53 27