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8/9/2019 10 Overview Trade and Environment - Dean Marvic M.v.F. Leonen
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Trade and Environment:
Precautionary Principles, RegulatoryDiversity, SPS Treaty of the WTO
Marvic M.V.F. Leonen
Dean and Professor of Law, UP
8/9/2019 10 Overview Trade and Environment - Dean Marvic M.v.F. Leonen
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Trade Regulation
July 29, [email protected]
Overview of the WTO Basic Disciplines
Tariffication and Bindings
Non Discrimination
MFN National Treatment
Regular Negotiations
Contingency Measures
Exceptions
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Elements
July 29, [email protected]
Perception of harm Seriousness
Likelihood (probability)
Understanding of the certainty of the perceived harm
and the taking of a regulatory response Taking of a regulatory response
Provisional character of the regulatory measure
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Concept of Risk
July 29, [email protected]
probabilistic likelihood of an unplanned,undesired or unwanted event actually
happening.
Risk assessment
Risk communication Risk management
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Application of the Measures
July 29, [email protected]
For domestic purposes, no international tradesurveillance
Levels of protection and the regulatory response are
mainly political decisions
Regulatory space is at its maximum Principle does not suggest any kind of measure or level of
protection
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WTO and Environmental Measures
July 29, [email protected]
US--Shrimp/Turtle Case Exceptions in article XX to article XI of the GATT
Exhaustible natural resource
But Chapeau, unjustified discrimination and disguisedrestriction to trade
Relationship of farming to turtles not questioned
EC-Asbestos Case Discrimination under article III paragraph 4, GATT
Environmental consequence part of physical characteristics
Carcinogenic potential of asbestos not questioned
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SPS Treaty
July 29, [email protected]
Sanitary and Phytosanitary Measures Object and purpose, prevent abuse
Unjustified or arbitrary discrimination
Disguised restriction to trade
Not to reduce discretion of member state to addressperceived harms
Specifies and complements article XX of the GATT
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Sanitary and Phytosanitary Measures
July 29, [email protected]
(a) to protect animal or plant life or health within the territory of the
Member from risks arising from the entry, establishment or spread ofpests, 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 foods, beverages or feedstuffs; (c) to protect human life or health within the territory of the Member
from risks arising from disease 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 theMember from the entry, establishment or spread of pests.
8/9/2019 10 Overview Trade and Environment - Dean Marvic M.v.F. Leonen
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Approaches
July 29, [email protected]
1. All measures established or maintained must havesufficient scientific justification.
2. No unjustified discrimination resulting in disguised
restriction to trade.
3. Least trade restrictive 4. Transparency of measures
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Distinctions
July 29, [email protected]
Australia-Salmon Case Level of protection (must now be clear)
Measures taken
Scientific Justification
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Scientific Justification
July 29, [email protected]
Option One: based on or conforming to measuresrecommended by international organizations (goal of
harmonization)
Option Two: measures resulting in a higher level of
protection but with scientific justification
Article 5 informs article 2
Concept of Risk Assessment
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Risk Assessment
July 29, [email protected]
Risk Assessment- The evaluation of the likelihood of
entry, establishment or spread of a pest or disease
within the territory of an importing Member according to
the sanitary or phytosanitary measures which might be
applied, and of the associated potential biological and
economic consequences; or the evaluation of the potential for adverse effects on
human or animal health arising from the presence of
additives, contaminants, toxins or disease-causing
organisms in food, beverages or feedstuffs.
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Elements
July 29, [email protected]
Identify the harm Establish the likelihood of the harm
Establish the likelihood of the harm in relation to the
specific measures to be undertaken
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Meaning of based on risk assessment
July 29, [email protected]
Objective relationship between the measure and thescientific study
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Precautionary Principle
July 29, [email protected]
No position on its status under international law Does not override the text of the SPS Treaty
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Article 5.7
July 29, [email protected]
In cases where relevant scientific evidence isinsufficient, a Member may provisionally adoptsanitary or phytosanitary measures on the basis ofavailable pertinent information, including that fromthe relevant international organization as well as fromsanitary or phytosanitary measures applied by other
Members. In such circumstances, Members shallseek to obtain the additional information necessaryfor a more objective assessment of risk and review thesanitary or phytosanitary measure accordingly withina reasonable period of time.
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Elements,
July 29, [email protected]
Japan--Apples; Japan--Agricultural Products II relevant scientific information is insufficient
Unresolved uncertainty v new uncertainty
Adopted on the basis of available pertinent
information Seeks additional information necessary for a more
objective assessment of the risk
Within a reasonable period of time
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Standard of Review
July 29, [email protected]
Neither de novo nor deferential But (as per article 11, dsu), objective assessment
By
Panel itself
Through individual experts Through expert working group
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CONCLUSIONS
July 29, [email protected]
Particularization of the precautionary principle
Environment is a legitimate area under trade law
Sense of including ecological norms in regional tradenegotiations
Possible areas for regional cooperation
Scientific information Research and development