Wto Essay _good Version

8/2/2019 Wto Essay _good Version

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Analyse the different approaches to the protection of animal species and the GATT (in

particular Article XX (b), (g) and/or the chapeau of Article XX). Is reform of the text

and structure GATT needed to facilitate conservation of animal species? Can

conservation of animal species be achieved without reform?

I. INTRODUCTION

There is a trend in academic work on the topic of protection of the environment and

the WTO/ GATT in the last two decades. The initial responses to decisions of the

WTO dispute resolution panel and the Appellate Body such as shrimp-turtle and

dolphin-tuna were highly reactionary. Academics and environmentalists called for

reform to the text of the WTO. However, more contemporary scholars are suggesting

nuanced legal arguments as a way to achieve protection of the environment within the

existing text of the agreement. This is also reactionary. The contemporary view is

shaped by the reality that reform of the text is unlikely. After eleven years of Doha

negotiations no reform proposals have been agreed. Reform is unlikely if not

impossible and the better strategy is to push the limits of the existing text rather than

argue for changes to the text. The problem is not necessarily the text; the problem is

the interpretation of the text.

This essay will start with an analysis of decisions on the exceptions in Article XX (b)

& (g) relating to the conservation of animal species. Next, the essay will look at some

of the early scholarly work in the 1990s and early 2000s, followed by a reflection on

academic work in the late 2000s and 2010s. The essay will argue that the earlier

scholars looked towards reform of the GATT as a way to harmonise global free trade

and animal conservation, whereas recently thepost-reformists scholars have looked


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not at reform but to the dispute settlement procedure as a way to harmonise trade and

environmentalism.

II. The Relevant GATT Text

Article I

Article I is known as the Most Favoured Nation principle (MFN). The pivotal phrase

is contained in Article I;1

[A]ny advantage, favour, privilege or immunity granted by any contracting

party to any product originating in or destined for any other country shall be

accorded immediately and unconditionally to the like product originating in or

destined for the territories of all other contracting parties.1

The legal discourse surrounds the term like product and what characteristics one can

assess in determining a products likeness to another product.

Article III

Article III provides that once a product enters a market place, members are prohibited

from using local laws to discriminate against an imported product over a local

product. The test for determining a products likeness is highly controversial. Like

products tests which concentrate only on the physical characteristics of products

1The General Agreement on Tariffs and Trade, October 30, 1947, 55 UNTS 194, art I;1 (entered into

force 1 January 1948).


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ignore the environmental problems which may or may not have occurred during

production. As such it has long been argued that Process and Production Methods

(PPMs) ought to be considered when determining the likeness of products.

Article XI

Article XI prohibits quantitative restrictions:

No prohibitions or restrictions other than duties, taxes or other charges,

whether made effective through quotas, import or export licences or other

measures, shall be instituted or maintained by any contracting party on the

importation of 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

In simple language WTO members cannot limit the quantity of imports from other

WTO members unilaterally. Duties and taxes can be used as trade barriers, but not

whole sale prohibitions on the quantity of imports.

Article XX

Article XX provides exceptions to the above rules. The first paragraph of Article XX

is known as the chapeau:

2 Ibid, art XI;1.


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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

on international trade, nothing in this Agreement shall be construed to prevent

the adoption or enforcement by any contracting party of measures:

The paragraphs of concern to the conservation of animal species are principally:

(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[.]3

3 Ibid, art XX.


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III. The Case Law History

In this section the essay will summarise some of the important decisions of the dispute

settlement procedure of the GATT/ WTO.

A. US-Tuna from Canada

The first case which dealt with Article XX (b) or (g) relating to animal conservation

was decided in 1982. Following the arrest of unauthorised US fishermen in disputed

waters by the Canadian authorities the US retaliated with an import ban on Canadian

tuna and tuna products.4

Canada challenged the validity of the measure under Article XI, a quantitative ban on

tuna from Canada. This was an open and shut case. Interestingly, the Panel made no

assessment on the scope of paragraph (g), and remained silent on the issue of whether

or not tuna stocks could be an exhaustible natural resource. The measure was clearly

outside of purpose of Article XX because the policy was not relating to the

conservation of exhaustible natural resources5

and was obviously arbitrary

discrimination.

4

The World Trade Organisation, Environment: Disputes 1(2012) World Trade Organisation at 12 April 2012.5GATT, October 30, 1947, 55 UNTS 194, art XX (g) (entered into force 1 January 1948).
http://www.wto.org/english/tratop_e/envir_e/edis01_e.htmhttp://www.wto.org/english/tratop_e/envir_e/edis01_e.htmhttp://www.wto.org/english/tratop_e/envir_e/edis01_e.htm


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B. Canada- Salmon and Herring

This was another case about seafood concerning Canada and the US. The difference

here was that it was a Canadian measure banning exports of herring and salmon

products. The United States challenged the measure claiming it was a breach of

Article XI. The dispute settlement panel agreed in 1988 that the measure was not

justifiable under Article XX (g) despite Canadas arguments that export restrictions

were part of a conservation effort of fish stocks.6

This case is very important because it opens up paragraph (g) as a potential tool of

environmentally conscientious governments. As Nielsen summarised, 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.

The representative from the United States did not question it either, and neither did

the panel.7

6

The World Trade Organisation, Environment: Disputes 2(2012) World Trade Organisation at 12 April 2012.7 Laura Nielsen, The WTO, Animals and PPMs (1st ed, 2007) 245.
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C. US-Tuna (Mexico)

US-Tuna (Mexico) was land mark case, and one of the most frustrating decisions for

animal conservation.

Under theMarine Mammal Protection Act:

If a country exporting tuna to the United States cannot prove to US authorities

that it meets the dolphin protection standards set out in US law, the US

government must embargo all imports of the fish from that country.8

Mexico challenged this measure in 1991, claiming it was inconsistent with Article XI,

19. The United States argued that the measure was justified under Article XX (b) and

(g).

The Dispute Settlement Panel found that the United States measure was not justified

under the Article XX. Of particular concern was that GATT rules did not allow one

country to take trade action for the purpose of attempting to enforce its own domestic

laws in another countryeven to protect animal health or exhaustible natural

resources.

10

The other important issue raised was the PPM issue. The GATT prohibited trade

restrictions which discriminated on the way tuna was produced. Regulations

8 The World Trade Organisation, Environment: Disputes 4 (2012) World Trade Organisation

at 11 April 2012.9Ibid.

10 Ibid.


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concerning quality, or content of tuna are applicable, but discrimination on process is

forbidden.11

D. US - Shrimp

USShrimp addresses a slightly different aspect of Article XXthe chapeau. In this

instance the United States measure was found to be justified under (g), but it failed to

be justified under the chapeau.

Under theEndangered Species Act; United States shrimp trawlers were required to

use turtle exclusion devises (TEDs) affixed to the nets and importing nations were

required to have shrimp fishing regulations comparable to the US (with respect to

turtle safety). In effect, this meant shrimp fishers were required to have TEDs.12

While this may sound very similar to the facts in US-Tuna (Mexico) the dispute

settlement bodies held that in fact the measures were justified under Article XX (g).

The panel and Appellate Body went to great pains to stress that nations have the

right to take trade action to protect the environment13

The Appellate Body reflected

on the prior jurisprudential requirement that the measure must be primarily aimed at

conservation, and sought to widen this test and endorsed a reasonably related

standard.14

11 Ibid.12

The World Trade Organisation, Environment: Disputes 8 (2012) World Trade Organisation

at 11April 2012.13 Ibid.14

Arjun Ponnambalam, U.S. climate change legislation and the use of GATT Article XX to justify aCompetitive Provision in the wake ofBrazil-Tyres(2008) 40(1) Georgetown Journal of

International Law 261, 271.


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However, the measure failed the chapeau because it was arbitrary or unjustifiable

discrimination between countries where the same conditions prevail15

The issue was

that the US had provided TEDs to Caribbean nations as part of financial assistance to

those developing nations. However, the US did not provide the same assistance to

other Asian nations (India et al). As such it was arbitrary discrimination in favour of

Caribbean shrimp fisheries over Asian shrimp fishers and not justifiable under Article

XX.16

E. Brazil-Retreaded Tyres

Brazil placed an import ban on tyres which had been retreaded (essentially recycled

tyres).17

The environmental argument was that disused tyres would stockpile and be

burnt off. Toxic carcinogenic emissions caused by the fires increased the risk to

human and animal health.18

This case falls within the scope of this essay because the

tyre fires were understood to be particularly dangerous to monkeys in Brazil.19

New

tyres would last longer than retreaded tyres and would mean less waste and fewer

fires.20

Tyre retreading nations objected under an Article XI basis. Brazil sought to defend the

measures under Article XX (b).21

This case was a landmark case for two reasons: it

was the first time that an Article XX defence for protection of animal species had

15GATT, October 30, 1947, 55 UNTS 194, art XX (entered into force 1 January 1948).16 The World Trade Organisation, above n 12.17

The World Trade Organisation, Environment: Dispute Settlement: DS332 (2012) World TradeOrganisation at 14 April 2012.18

Kevin R. Gray and David J. Bederman (ed), International Decisions (2008) 102 The American

Journal of International Law 610, 610.19Bradley J. Condon, Climate Change and Unresolved Issues in WTO Law (2009) 12(4)Journal of

International Economics Law 895, 918.20Gray, above n 18, 613.

21 The World Trade Organisation, above n 12.
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been invoked by a developing country and;22

secondly, it was the first time that a non-

migratory species was sought to be protected.23

The Appellate Body found that paragraph (b) was satisfied, but ultimately the

measure failed the chapeau. Importantly, many scholars note that the test used in this

case involved a broader understanding of paragraph (b). This has encouraged many

post-reformist scholars to take advantage of the broader view.

22Gray, above n 18, 611.

23 Condon, above n 19.


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IV. Reformists Reactions

This section will explore some of the early reactions to the above cases.

There are two groups of early scholars. First, the reformists, like Di Pepe,

Schoenbaum and Neilsen. This group argue that the GATT needs some reforms and

amendments so as to better protect the environment. This school of thought is not

against trade liberalisation or opposed to the existence of the WTO; rather, they argue

free trade can be good for the environment, but the GATT needs some modifications.

On the other hand anti-GATT scholars such as Weiss believe mild reform is futile.

Weiss argues the GATT must be rewrittenfrom scratchin a modern context.

Di Pepe sits somewhere between the reformist group and the anti-GATT group. As a

reformist he recognises that on the one hand, the WTO in itself should be regarded,

from an institutional point of view, as the legitimate and best equipped forum to deal

with trade and environmental disputes.24

However, he acknowledges that this notion

could be too optimistic an interpretation of the recent developments if GATT case

law.25

Di Pepe sees hope but also disappointment in reform of the WTO. He notes

the new preamble to the WTO:

24Lorenzo Schiano di pepe The World Trade Organisation and the Protection of Natural Environment:

Recent Trends in the Interpretation of G.A.T.A. Article XX (b) and (g) (2000) 10 Transnational Law& contemporary Problems 271, 302.25 Ibid.


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Expanding the production of all trade in goods and services, while allowing

for the optimal use of the worlds resources in accordance with the objective

of sustainable development.26

The reformist in Di Pepe argues this new preamble provides optimism and that the

WTO is the most suitable forum for international conservationist efforts to be

realised. However, he differs from Schoenbaum or Nielsen because while

ideologically, he sits as a reformists and not an anti-GATT academic, in reality he is

an armchair reformist. He cries foul the reasoning of the Panelbut unlike

Schoenbaum and Nielsen he does not take the time to propose any reforms.

Schoenbaums reformist agenda is wide ranging. Like di Pepe he believes the dispute

resolution mechanism has had a narrow interpretation of Article XX.27

He suggests

that the test for exemptions should mimic the test used by the Court of Justice of the

European Community.28

He details the problematic relationship between the treaties

such as the Convention on International Trade in Endangered Species of Wild Fauna

and Flora, the GATT and the Vienna Convention on the Law of Treaties, and

concludes that an amendment to Article XX should explicitly state that the exceptions

should be considered consistent with international environment agreements.29

Finally,

he suggests that the GATT rules should be amended so that the like product test is

26Marrakesh Agreement Establishing the World Trade Organisation, 33 I.L.M 1225, 44 (1994) as cited

by Ibid, 271.27Thomas J. Schoenbaum Free International Trade and Protection of the Environment. Irreconcilable

Conflict? (1992) 86 No. 4 The American Journal of International Law 700, 712.28Ibid, 716-717.

29 Ibid, 720.


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changed to consider the production of products.30

This specific and targeted reform

agenda separates Schoenbaum from di Pepe.

Neilsen, like Schoenbaum, goes to great pains to outline her reform proposals.

Neislens book titled The WTO, Animals and PPMs written as recently as 2004, is a

more recent writing with an old fashioned approach. She sees the overlap between (b),

(g) and potentially (a)31

as highly problematic; and proposes the rewriting of Article

XX which will prevent any debate over which paragraph might provide a defence for

a challenged measure.32 This is what makes Nielsen a touch old fashioned in her

approach. Unlike most other scholars of the 2000s, she is still concentrating on reform

proposals. In fact, in a scathing attack on her contemporary colleagues Nielsen writes

leave it to the membership not the Appellate Body33

in other words, the

membership of the WTO ought to decide on the future scope and direction of the

exceptions, not a judicial apparatus.

As a matter of fact some of Schoenbaums proposed reforms have already occurred.

As Neilsen discusses, when the WTO was established in 1994, Annexure II, the

Dispute Settlement Understanding (DSU) became the pivotal text for interpretations

of the GATT when resolving disputes. She argues that 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 exception34

this limits the ability to have a

narrower reading of the exception in Article XX than the reading of the remained of

30Ibid, 722.

31necessary to protect public morals32

Nielsen, above n 7, 12.33Ibid, 13.

34 Ibid, 202.


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the text.35

This is precisely what Schoenbaum had recommended!36

Unfortunately,

Nielsen, points out that it was not untilEC-Hormones when the Appellate Body held

that an exception does not by itself justify a stricter or narrower

interpretation.37

Despite the fact that some of the reforms Schoenbaum advocated for

had been achieved and that Nielsen is writing much later that Schoenbaum, none the

less Nielsen still maintains that reform to Article XX is of the utmost importance.

Di Pepe argues that the GATT cases in relation to conservation were decided

incorrectly. He argues that, the Panel in the Shrimp-Turtle case focused too heavily

on free trade requirements and not the environmental provisions in the GATT. He

notes the Panelfound that Article XX only allow[ed] members to derogate from

GATT provisions so long as, in doing so, they [did] not undermine the WTO

multilateral trading system38

However, as Di Pepe points out this is circular, one

cannot expect measures which are sought to be justified under Article XX to be

consistent with Articles I, III or XI39 This is a critical point and in many respects this

is the fundamental problem with current application of the WTO. Di Pepe is ahead of

his time in this respect. While Schoenbaum and others were busy developing ideas for

reform and ways to make the GATT more ecologically friendly. Di Pepe, like many

of those who came after him, focused on the legal reasoning and attempted to foster a

more sophisticated legal argument to make the interpretation of the existing text no

longer repugnant to the conservation of species.

35Ibid.

36 Schoenbaum, above n 27, 720.37

Nielsen, above n 7, 202.38di pepe above n 24, 283.

39 Ibid.


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The anti-GATT group argue the GATT is skewed in favour of free trade over

environmental concerns. They argue the GATT is incapable of reform and for a whole

new structure where trade and protection of the environment sit side-by-side, rather

than one objective dominating the other.40

Weiss rejects the structure of the decision making process entirely. She argues:

If we accept that environmental conservation and free trade are both means for

reaching a common end of environmental sustainable development...The

framework for resolving disputes between the two bodies of law cannot be

assumed to be the present dispute resolution mechanism of the GATT41

Weiss criticism is that most interpretations of international trade and environmental

issues focus on the objective of facilitating freer trade, and making environmental

concerns fit within that paradigm. Weiss argues that environmental concerns must be

given an equal billing comparable to those of trade.42

Just as Schoenbaum and di

Pepe criticise the effect of the decisions in Article XXcases, her criticism focuses not

on the specifics of any litigation but the macro-structure of the GATT. She asks why

is there not a General Agreement on Environment and Natural Resource

Protection?43

She strongly concludes that without the ability to ban products

produced by environmentally unsustainable practices, countries will be lacking an

essential measure for achieving environmental sustainability.44

40Edith Brown Weiss Environment and Trade as Partners in Sustainable Development: A

Commentary (1992) 86 No. 4 The American Journal of International Law 728-735.41 Ibid, 731.42

Ibid, 728.43Ibid 729.

44 Idib, 730.


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These four authors provided a nuanced understanding of the interplay between free

trade and environmental protection in particular species conservation. Each argument

has its strengths and weaknesses. We have seen that some of the reforms initially

proposed have been adopted, and in the case of the creating parallel readings of

sections as per the Vienna Convention, these reforms have even made it into the

jurisprudence. It is, however, important to make the point, that despite the reform,

Brazil-Retreaded Tyres still failed, and the conservation of monkeys was held to be

WTO-inconsistent. What binds these earlier scholars (and some later scholars like

Neilsen) together is their attitude to reform, they fundamentally believe that the

solution should come from the membership, from consensus decision making and not

from a judicial apparatus.


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V. Post-Reformists approaches

The common approach of the reformist school of thought was that the membership of

the WTO could be called upon to create a better trading system which recognised the

importance of the environment. The post-reformists approaches, also have a common

threadthey accept that negotiations are unlikely to produce adequate reform. As

Charles Benoit states, the political realities pose a considerable hurdle to reform

through consensus, as the failed Doha negotiations demonstrate.45 Their approach

has been to use more sophisticated legal arguments to find a way in which measures

aimed at protecting the environment can withstand a WTO challenge. There are three

key areas of law which contemporary scholars have analysed in order to find legal

passages for such measures. An analysis of the relationship between (b) & (g), the

word necessary in (b); building upon the broader approach taken inBrazil-

Retreaded Tyres.

Most recent scholars focus on climate change measures. Some political leaders have

said avoiding climate change is the greatest moral, economic and

environmental challenge of our generation46

These scholarly workswhich focus of

climate changeremain important for our purposes. Not only because of the

barefaced link between climate change, artic ice caps, polar bears and other animals

who suffer because of irreversible climate change; but also, because this essay will

look at how these scholars have developed analysis and arguments which harmonise

45Charles Benoit, Picking tariff winners: non-product related PPMs and DSB interpretations of

unconditionally within article I;1 (2011) 42.2 (Winter), 583, 584.46

The Hon. Kevin Rudd MP in Peter Van Onselen, Politics Trumps a Moral Challenge (2010) TheAustralian at 26 April 2012.
http://www.theaustralian.com.au/news/features/politics-trumps-a-moral-challenge/story-e6frg6z6-1225859592923http://www.theaustralian.com.au/news/features/politics-trumps-a-moral-challenge/story-e6frg6z6-1225859592923http://www.theaustralian.com.au/news/features/politics-trumps-a-moral-challenge/story-e6frg6z6-1225859592923http://www.theaustralian.com.au/news/features/politics-trumps-a-moral-challenge/story-e6frg6z6-1225859592923http://www.theaustralian.com.au/news/features/politics-trumps-a-moral-challenge/story-e6frg6z6-1225859592923http://www.theaustralian.com.au/news/features/politics-trumps-a-moral-challenge/story-e6frg6z6-1225859592923


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the GATT and environmental protection. While the focus might not be on animals

these assessments of the Article XX jurisprudence and the applicable cases provides

precisely the analysis this essay is looking for.

Bradley J. Condon is an environmentalist scholar, but his focus is not animal species.

He predicts that in the future as more and more national governments take legislative

and executive action against climate change; the WTO may become an important

legal battleground. Ofparticular interest to this essay is the discussion about the

scope of paragraphs (b) and (g) in Article XX.47

One of the important objections the Appellate Body had to the measures taken by the

US in US-Shrimp and in another case which concerned paragraph (g), US-Gasoline, is

that the US failed to negotiate with affected members. A failure to negotiate led to a

failure to comply with the non-discrimination requirements of the chapeau.48

Condon

suggests that the judgement of the Appellate Body does not make it clear whether the

measure was struck down because other international treaties concerning the

environment required negotiation; or, because the US had not consulted with the

Asian nations as it had done with her neighbours in the Americas. Unlike paragraph

(g), no dispute resolution mechanism has found an obligation to negotiate for

measures defended by virtue of paragraph (b). His attempt to explain the divergence

in jurisprudence49

lies at the heart of the focus of this essay. He suggests that

paragraph (g) is the paragraph which could defend a measure protecting a migratory

47

Condon, above n 19, 895.48Ibid.

49 Ibid, 917.


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speciesturtles, salmon, herring, tuna and dolphins50

whereas paragraph (b) has

been applied only to the conservation of a domestic speciesmonkeys.51

Condon, goes on to argue that the evolution of the jurisprudence has led to a

contradiction and rather perverse outcomes. The term necessary in paragraph (b) is

naturally a higher standard than relating to which is used in paragraph (g).

However, the Appellate Body has also held that no other consideration ought to

undermine human health. Human health is part of paragraph (b).52

There lies the

conundrum, human health is of the upmost importance, but it is more difficult is

employ paragraph (b) than the preservation of a natural resource in paragraph (g).

Animals are easier to protect to humans in the WTO! Nielsen, also draws attention to

this and points out that animals are easier to protect natural resources than it is to

protect human health.53

Nielsen goes on to suggest that (g) ought not relate to living

species,54

(This was Mexicos argument in US-Tuna). As a reformist, Nielsen looks

for a change in the text to clearly define the scope of each paragraph.

Condon has a suggestion for this conundrum. He suggests the Appellate Body

recognise the trend he has identifiedthat migratory species are to be dealt with in

under paragraph (g), which is prima facie an easier hurdle to overcome because of the

words relating to. However, (g) requires multilateral negotiation (US- shrimp etc),

(b) does not. As such (g) (relating to) + a negotiation requirement is a higher

standard than (b) (necessary) with no negotiation requirement.55

For Condon, this is

50Ibid, 917.

51Ibid, 918.

52 Ibid 918.53

Neislen above n 7, 191.54Ibid, 210.

55 Condon, above n 19, 917.


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useful because he looking for an avenue to defend measures which tackle global

warming. For our purposes, it is useful because it identifies a number of issues. It is

easier to jump the hurdle of relating to than necessary, hence nations should use

paragraph (g) rather than (b). Paragraph (g) is most commonly used for migratory

species and species which cross borders. While some measures have passed paragraph

(g), they have failed the chapeau for lack of negotiating. The most important aspect

of what Condon has unravelled is his solution is that rather than tearing up the GATT

as Weiss recommends, or reforming the text of Article XX, as Nielsen and

Schoenbaum pledge; Condon argues that One solution for this conundrum isfor

WTO jurisprudence to evolveto a point where the threshold converges. [emphasis

added] His suggestion is that the answer to the conundrum is already available to the

judicial apparatus of the WTO.

Christopher Doylejoins in our debate about the term necessary. He also criticises

the judicial decision making in relation to Article XX. His subject is the term

necessary, which features not only in paragraph (b) but also in paragraph (a) (which

relates to public morals) and paragraph (d) (which relates to the protection of laws

including monopolies, customs and intellectual property laws). He analyses the new

test which has arrived as a result ofKorea-Beff, EC-Abestos and Brazil-Retreaded

Tyre. The new three part test looks at the relationship between the objectives of the

measure and effects of the measure, less trade restrictive alternatives and the weighing

and balancing process which includes an assessment of the importance of the policy

behind the measure.56

A dramatic softening of the test occurred inBrazil-Retreaded

Tyres where the Panel and then the Appelate Body agreed that the question is:

56

Christopher Doyle, Gimme Shelter: The Necessary Element of the GATT Article XX in theOCntext of the China-Audiovisual products Case (2011) 29Boston University International Law

Journal 143, 152-160.


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whether the import ban on retreaded tyres contributes to the realisation of the policy

pursued.57

Many other scholars have picked up on the broadening of the test for necessary.58

Ponnambalam focused on the implicit purposive test the Appelate Body adopted.

There must be a genuine relationship of ends and means between the objective

pursued and the measure at issue.59 This naturally, allows for a wider reading of

necessary and provides hope that future measures relating to the environment will be

WTO-compatible. However, as we know, paragraph (b) is the first hurdle, and since

US-Shrimp the chapeau has been the more cumbersome hurdle to pass.

The Appellate Body, did approach the chapeau test from a different angle inBrazil-

Retreaded Tyres, and this has given hope to environmentalists such as Ponnambalam.

The true purpose test as Ponnambalam has labelled it moves away from a test based

of the effect of a measure. Part of the complexity of theBrazil-Retreaded Tyres case

was that there was an exemption for MERCOSUR nations. Naturally, the European

tyre retreading nations objected to this claiming unjustifiable discrimination. At the

Panel, Brazil was successful in relation to the MERCOSUR exception. The Panel held

the amount of retreaded tyres entering Brazil from MERCOSUR was negligible and

did not undermine the purpose of the measure. Ultimately, the Europeans were

successful, as the Appellate Body disagreed with the quantitative analysis and focused

57Panel ReportBrazilRetreaded Tyres in Ibid, 160.

58Sbastien Thomas, Trade and environment under WTO rules after the Appellate Body report in

Brazil-RetreadedTyres (2009) 4(1)Journal of International Commercial Law and Technology 42,

Arwel Davies, Intrepreting the Chapeau of GATT Article XX in Light of the New Approach inBrazil-Tyres (2009) 43(3)Journal of World Trade 507, and Ponnambalam above n 14.59 Appellate Body ReportBrazilRetreaded Tyres p145in, Ponnambalam above n 14, 273.


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on the cause not the effect of the discrimination.60

Ponnambalam, however, sees hope

in this reasoning of the Appelate Body, because it opens up a purposive test in the

chapeau.61

The Appellate Body reasoning includes a strong fondness towards a

purposive test:

There is arbitrary or unjustifiable discrimination when a measure provisionally

justified under a paragraph of Article XX is applied in a discriminatory

manner between countries where the same conditions prevail, and when the

reasons for this discrimination bear no rational connection to the objective

falling within the purview of Article XX, or would go against that objective.62

The two US-Canadian cases are a perfect example of blatant unjustifiable

discrimination with no rational connection to the objective. The US-Tuna, US-Shrimp

cases andBrazil-Tyres case on the other hand have a clear connection with the policy

objective. Yet these measures were denied WTO-compatibility. Ponnambalam argues

a purposive test in the chapeau would enable the AB to exercise its discretion63

; it

takes the focus away from arbitrary discrimination and provides a wider gambit for

the judicial authorities to look at the purpose of measures which might be justifiable

discrimination when considering the purpose of the measure.64

This is very similar to

di Pepes criticism that the problem is circular of course measures will include some

discrimination, they would not need the Article XX defence if they did not involve a

divergence from the principles of Article I, III or XI. However, focusing on

discrimination and not looking at the purposive test where one might findjustifiable

60Ibid, 283.

61 Ibid.62

Appellate Body ReportBrazil-Retreaded Tyres para 227, in Davies above n 58, 518.63Ponnambalam above n 14, 287.

64 Ponnambalam above n 14, 283.


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discrimination can only lead to rulings of WTO-inconsistency. A more purposive

assessment of the measures can provide the protection of animals under the WTO.

However, not all contemporary scholars are open to the idea of discretion. Doyle is

critical of the narrow interpretation of the exceptions in Article XX. He calls for

the WTOs judicial bodies to arrive at a uniform standardthat can be consistently

applied.65

This statement has two important meanings. Firstly, he sets himself apart

from Ponnambalam because he desires more certainty and less discretion. Secondly,

his call for the WTOs judicial bodies to arriveat a uniform standard shows that he

is true post-reformists. It is similar language to Condons calls for WTO

jurisprudence to evolve. He does not advocate for an amendment to the text of the

GATT or a side agreement but rather for the judicial bodies to arrive at or evolve to a

different outcome.

Some scholars have seized on recent jurisprudence and established arguments which

environmentally minded nations could use as a defence in a WTO trial. Condon,

Ponnambalam and Thomas have taken the broadening of the necessary test and an

interpretation of the judgement relating to the chapeau to argue for measures which

tackle climate change.66

Beniot, looks away from Atricle XX.67

Beniots arguments is that an excerpt from the OECD will allow for recognition of

PPMs in the like product test. PPM requirements that are related to the environment

impact, but do not specify the PPM itself, should be preferred because they are

65

Doyle, above n 56, 166.66Condon, above n 19, Ponnambalam above n 14, Thomas, above n 58.

67 Beniot, above n 45.


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usually less costly and less restrictive.68 Tuna-Turtle (where the requirement to use a

TED was unjustifiable discrimination) a requirement to use a TED ignored that some

other mechanise with the same purpose may have existed the PPM did not relate to

the environmental impact but instead it specified the PPM itself. Benoit uses this

excerpt as a way to argue that measures which require low emission ethanol fuel

would be WTO consistent. Provided the measures assess the environmental impact

rather than mandate a particular production method.69 He claims that a Canadian

Auto case endorsed production methods as a way of differentiating like products. The

Panel said previous measures that were found to inconsistent with Article I;1 not

because they involved the application of conditions that were not related to imported

product but because they involved conditions that entailed different treatment of

imported products depending upon their origin.70

In other words, past failures of

measures to be WTO consistent failed because they discriminated on origin.

Benoit looks away from Article XX to find ways the judicial body can endorse

environmental protection measures which assist animal conservation and still be

WTO-compliant, other scholars, seek to use sophisticated legal arguments which

build on existing jurisprudential understandings of Article XX and the chapeau. These

post-reformists scholars provide useful arguments which conscientious governments

might be able to use as part of a defence if a measure which needs Article XX to

withstand a WTO challenge. Without more test cases, it is difficult to make a

judgement on the effectiveness of these nuanced arguments. Part of the problem is

that only Governments have standing at the WTO, so only governments can prosecute

68 OECD, PPMs Conceptual Framework and Considerations on use of PPM-Based Trade Measures, 45

(1997) in Ibid, 587.69Beniot, above n 45, 587.

70 Ibid.


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test cases which might lead to new understandings and a better deal for conservation.

However, these are large expenses for the tax payer to burden. As such the evolution

of the jurisprudence might be a very slow process.

VI. Conclusions

As the research has shown, there is a clear theme in the academic literature on the

topic. Around the time of the US-Shrimp and US-Tuna cases, there was outrage at the

narrow interpretations of the paragraphs and later the narrow interpretation of the

chapeau. The initial reactions were reformist reactions. These scholars called for

changes to the GATT, side agreements, or even a rewriting of the GATT. It is

important to keep in mind that these scholars were writing at a time not long after the

completion of the Uruguay Round of negotiations. They had recently witnessed a co-

operative meeting by the membership of the GATT/ WTO and a meeting which

produced results. As such, it is understandable that these scholars still believed in

reform and still believed in the capacity of the members to achieve results.

Contemporary scholars are very different. They have given up on reform. They see

the membership as incapable of achieving results and have turned their focus on

convincing the judicial branch of the WTO that the WTO can in fact protect animals

and can protect the environment. They seek to convince the judicial branch of the

WTO that the tools are already at their disposal. There do not need reform to protect

the environment, they simply need to start applying some of the broader tests and

marked language which they have already endorsed; and apply these tests to

environmental measures that ought to be capable of being WTO approved.


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BIBLIOGRAPHY

A.ARTICLES/ BOOKS/ REPORTS1. Benoit, Charles, Picking tariff winners: non-product related PPMs and DSB

interpretations of unconditionally within article I;1 (2011) 42.2 (Winter),

583.

2. Condon, Bradley J., Climate Change and Unresolved Issues in WTO Law(2009) 12(4)Journal of International Economics Law 895.

3. Davies, Arwel, Intrepreting the Chapeau of GATT Article XX in Light of theNew Approach inBrazil-Tyres (2009) 43(3)Journal of World Trade 507.

4. Di pepe, Lorenzo Schiano, The World Trade Organisation and the Protectionof Natural Environment: Recent Trends in the Interpretation of G.A.T.A.Article XX (b) and (g) (2000) 10 Transnational Law & contemporary

Problems 271.

5. Doyle, Christopher, Gimme Shelter: The Necessary Element of the GATTArticle XX in the Context of the China-Audiovisual products Case (2011) 29

Boston University International Law Journal 143

6. Gray, Kevin R., and Bederman David J., (ed) International Decisions (2008)102 The American Journal of International Law 610.

7. Nielsen, Laura, The WTO, Animals and PPMs (1st ed, 2007).8. Ponnambalam, Arjun, U.S. climate change legislation and the use of GATT

Article XX to justify a Competitive Provision in the wake ofBrazil-Tyres

(2008) 40(1) Georgetown Journal of International Law 261.

9. Schoenbaum Thomas J., Free International Trade and Protection of theEnvironment. Irreconcilable Conflict? (1992) 86 No. 4 The American Journal

of International Law 700.

10.Thomas, Sbastien, Trade and environment under WTO rules after theAppellate Body report inBrazil-RetreadedTyres (2009) 4(1)Journal of

International Commercial Law and Technology 42.

11.Weiss, Edith Brown, Environment and Trade as Partners in SustainableDevelopment: A Commentary (1992) 86 No. 4 The American Journal of

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B.TREATIES


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