Historical Development of the WTO DSS and National Environmental and Public Health Regulation

Maggio, Amber Rose

doi:10.1007/978-3-319-61155-6_3

Amber Rose Maggio²⁰

Part of the book series: European Yearbook of International Economic Law ((EYIELMONO,volume 1))

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Abstract

The following chapter will now go on to give an introduction to the content of the relevant provisions of the WTO and covered agreements in the area of environmental and health regulation, particularly in reference to non-tariff barriers to trade and more specifically labelling requirements and border measures (including import bans) on the basis of NPR PPMs.

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Notes

1.
David Palmeter/Petros C. Mavroidis, Dispute Settlement in the World Trade Organization: Practice and Procedure (Cambridge, 2nd edn. 2004), 234.
2.
For a comprehensive history on the relationship between the Havanna Charter, the ITO and the GATT, as well as analysis as to the reasons for its failure, see Robert E. Hudec, The GATT Legal System and World Trade Diplomacy (London, 2nd edn. 1990), 23–61.
3.
The fact that the GATT was never intended to be an organisation can also be evidenced in the choice of language here, as ‘Contracting Parties’ was used rather than ‘Members’.
4.
The original developing country members were Brazil. Burma, China, Ceylon, Chile, Cuba, India, Pakistan, Syria and Lebanon. See: Robert E. Hudec, Developing Countries in the GATT Legal System (Cambridge, 1987), 23.
5.
Ibid. The developed countries at this point and included all major developed countries except Japan and Switzerland.
6.
Ibid., 24–25.
7.
William R. Cline, Evaluating the Uruguay Round, The World Economy 18 (1995), 1.
8.
ODI, The GATT Uruguay Round, Overseas Development Institute Briefing Paper (1987), 4.
9.
The ITO was effectively ‘killed’ by the failure of US Congress to approve it. In fact, in 1950, the US Department of State declared it to be dead. See Palmeter/Mavroidis (note 1), 2.
10.
Hudec (note 2), 67.
11.
Ibid.
12.
John H. Jackson, The Evolution of the World Trading System: The Legal and Institutional Context, in: Daniel Bethlehem et al. (eds.), The Oxford Handbook of International Trade Law (2009), 30, 35; see further Wolfgang Benedek, General Agreement on Tariffs and Trade (1947 and 1994), in: Rüdiger Wolfrum (ed.) The Max Planck Encyclopaedia of Public International Law, vol. IV (Oxford, 2012), 312, 315 (paras. 14–15).
13.
Jackson (note 12), 36.
14.
See Miles Kahler, International Institutions and the Political Economy of Integration (Washington DC, 1995), 27, who describes this flexibility as being ‘Particularly important, because the General Agreement was very difficult to amend, a principal explanation for the gradual proliferation of side agreements’.
15.
Hudec (note 2), 75–108.
16.
Oliver Long, Law and its Limitations in the GATT Multilateral Trading System (Heidelberg, 1985), 5.
17.
Andrew Lang, World Trade After Neoliberalism: Re-imagining the Global Economic Order (Oxford, 2011), 202–205 (emphasis added). Lang pays particular attention here to the fact that the text of the GATT ‘represented only a very partial and even misleading window onto the normative universe of the GATT’s legal system’ and that greater heed should be paid to the ‘large body of informal norms which sprang up in and around the formal texts’ which ‘structured the interpretation and application of the law’.
18.
Long (note 16), 61.
19.
Ibid., 62.
20.
Lang (note 17), 204.
21.
Long (note 16), 62.
22.
Particularly by the United States, whose requirement for congressional ratification was in fact the major blow to the ITO. This is in contrast to the substantive obligations of the GATT which were ‘a faithful copy of the ITO’s Commercial Policy Chapter as it then stood’. See Hudec (note 2), 50.
23.
Ibid., 51.
24.
WTO, Understanding the WTO (5th edn. 2011), 15. Art. XXIX: GATT 1947 provides, in fact, that ‘Part II of this Agreement shall be suspended on the day on which the Havana Charter comes into force’.
25.
For a thorough history of the legal system of the GATT, see Hudec (note 2); Robert E. Hudec, Enforcing International Trade Law: The Evolution of the Modern GATT Legal System (London, 1993).
26.
Hudec (note 2), 34. Particularly the period in the 1960s where very few cases were brought, and none at all in the last six years of the decade, ibid, 31.
27.
Ibid., generally and particularly 39–40, 54.
28.
Though also created some problems that were not solved until the introduction of the WTO DSU.
29.
Hudec (note 2), 57.
30.
Ibid., 129.
31.
The Tokyo Round was the first major round that tackled non-tariff barriers to trade and included the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (Antidumping Code), the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade (Customs Valuation Code), Agreement on Import Licensing Procedures, Agreement on Interpretation and Application of Articles VI, XVI, and XXIII of the General Agreement on Tariffs and Trade (Subsidies Code), Agreement on Technical Barriers to Trade (Standards Code), Agreement on Trade in Civil Aircraft, International Dairy Agreement, International Bovine Meat Agreement and the Differential and More Favourable Treatment and Reciprocity and Fuller Participation of Developing Countries (Enabling Clause).
32.
Understanding the WTO (note 24), 17.
33.
See Jackson (note 12), 32–35.
34.
Peter Van den Bossche, The Law and Policy of the World Trade Organization (Cambridge, 2nd edn. 2008), 80.
35.
Art. XXV:1 GATT 1947.
36.
Art. XXV:2 GATT 1947.
37.
Art. XXV:3 GATT 1947; Art. XXV:4 GATT 1947.
38.
Art. XXV:5 GATT 1947.
39.
Jackson (note 12), 31.
40.
Van den Boscche (note 34), 80.
41.
Art. XXIII:2 GATT 1947.
42.
Particularly as the adoption of their reports remained Georges Abi-Saab, The Appellate Body and Treaty Interpretation, in: Malgosia Fitzmaurice/Olufemi Elias/Panos Merkouris (eds.), Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 Years On (Leiden, 2010), 97, 102.
43.
Jackson (note 12), 46. For the functioning of the working party system, see further Hudec (note 2), 78–80. The panel system began evolving in 1952 upon the suggestion of Mr. Johan Melander of Norway, and was used ad hoc for the next 3 years. By 1955 it was decided that the panel system was a success, and its use was cemented in practice.
44.
Hudec (note 2), 85.
45.
Jackson (note 12), 46.
46.
Hudec (note 2), 88.
47.
Ibid., 92.
48.
Palmeter/Mavroidis (note 1), 8.
49.
BISD 29S/13, 15.
50.
Paras. 3–6.
51.
Although this became diplomatically problematic by the 1980, it was still part of the GATT DSS. See Jackson (note 12), 48–49.
52.
Hudec, Enforcing International Trade Law (note 25), 278.
53.
See note 31.
54.
Jackson (note 12), 49.
55.
Art IV:1 WTO Agreement.
56.
Art. IV:2 WTO Agreement.
57.
Art IV:3 WTO Agreement.
58.
Art VI:4 WTO Agreement.
59.
Art. IV:5 WTO Agreement.
60.
Art. IV:6 WTO Agreement.
61.
See Van den Bossche (note 34), 118, for a helpful table demonstrating how the organisational structure is set out, and ibid., 117–138 for in-depth analysis as to the institutional structure of the WTO.
62.
Art. 6 DSU.
63.
Art 16.1 DSU.
64.
Art. 16.4 DSU.
65.
Art. 18 DSU.
66.
Art. IX:1 WTO Agreement iterates that the practice of decision-making by consensus followed under the GATT 1947 ‘shall continue’. Reverse consensus was first introduced to the GATT system in 1989 through the adoption of the ‘Montreal Rules’ and then made permanent through their adoption into the WTO regime, see: Palmeter/Mavroidis (note 1), 10–11.
67.
Art. IV:2 WTO Agreement.
68.
The possibility can be imagined where a Panel or Appellate Body decision is a clear and flagrant misinterpretation of a rule under one of the agreements, or more likely a report which vastly encroaches upon the autonomy of WTO members by reading standards of review of obligations into the agreements which do not exist and were not agreed upon in the negotiations. But again, the likelihood of a party to a dispute having their claims upheld but nevertheless agreeing that the report should not be adopted is remote. The power of the DSB to withhold consent to the adoption of a report has been described as ‘more illusory than real’, see Palmeter/Mavroidis (note 1), 15. In fact, ‘It is generally expected that virtually every WTO dispute settlement final report will be adopted: WTO, The Future of the WTO: Addressing Institutional Challenges in the New Millennium (2004), 50 (2004 Sutherland Report).
69.
Long (note 16), 61.
70.
Ernst-Ulrich Petersmann, International Trade Law and the GATT/WTO Dispute Settlement System 1948–1996: An Introduction, in: Ernst-Ulrich Petersmann (ed.), Studies in Transnational Economic Law: International Trade Law and the GATT/WTO Dispute Settlement System (Neuwied, 1997), 54–55.
71.
Ibid., 55.
72.
Petersmann (note 70), 56. ‘Acquis’ is a term used in EU law in reference to the content, principles and political objectives of the treaties, the legislation adopted in application of the treaties, the case law of the Court of Justice, declarations of the Union etc. See EU, Summaries of EU Legislation: Glossary, available at http://europa.eu/legislation_summaries/glossary/community_acquis_en.htm. The Appellate Body has also made reference to the GATT case law in the context of the ‘acquis’ of the GATT, see Appellate Body Report Japan –Taxes on Alcoholic Beverages, para. 14, stating: ‘Adopted panel reports are an important part of the GATT acquis’.
73.
Isabelle Van Damme, Treaty Interpretation by the WTO Appellate Body (Oxford, 2009), 6; see further James K. R. Watson, The WTO and the Environment: Development of Competence Beyond Trade (Oxford, 2013), 84–88.
74.
See infra, Chap. 4.
75.
Lang (note 17), 191–192; Jörg Philipp Terhechte, Non-Tariff Barriers to Trade, in: Rüdiger Wolfrum (ed.) The Max Planck Encyclopaedia of Public International Law, vol. VII (Oxford, 2012), 750, 752–753 (paras. 14–18).
76.
See Lang (note 17), 218–220, for a discussion of the reasons for the substantive shift and how it was brought about.
77.
Palmeter/Mavroidis (note 1), 5.
78.
C. Coughlin/G. E. Wood, An Introduction to Non-Tariff Barriers to Trade, 71 Federal Reserve Bank of St Louis (1989), 31, 33.
79.
Terhechte (note 75), para. 1, quoting Robert Baldwin, Nontariff Distortions of International Trade (Washington DC, 1970), 5.
80.
2003–2012 Reports available at: http://www.wto.org/english/res_e/reser_e/wtr_e.htm.
81.
WTO, World Trade Report 2012: Trade and Public Policies: A Closer Look at Non-Tariff Measures in the 21st Century (2012).
82.
Ibid., 101.
83.
Panel Report Turkey – Restrictions on Imports of Textile and Clothing Products, para 9.63.
84.
G/L/59 of 10 January 1996.
85.
Ibid., Annex.
86.
Though it is more than conceivable that, when operated on a bilateral basis, it would be possible to also employ them in preventing market access for foreign products whose process and production methods cause concern in the health or environmental fields.
87.
Art. III GATT 1947 (emphasis added).
88.
Van den Bossche (note 34), 7.
89.
Ad Art. III GATT 1947.
90.
Art I:1 GATT.
91.
Explicitly, regulations that discriminate between products due to their origin rather than their PPMs or environmental/health impact would be very unlikely to meet the Art. XX general exceptions laid out below.
92.
See infra, Sect. 4.5.
93.
Won-Mog Choi, Like Products in International Trade Law: Towards a Consistent GATT/WTO Jurisprudence (Oxford, 2003), ix (preface).
94.
See, for example, GATT Panel Report United States – Restrictions on the Import of Tuna (Tuna/Dolphin I), DS21/R 1991, para. 2.7 (unadopted); GATT Panel Report United States – Restrictions on the Import of Tuna, DS29/R 1994, paras. 2.1–2.15 (unadopted); Panel Report, United States – Standards for Reformulated and Conventional Gasoline; Appellate Body Report United States – Standards for Reformulated and Conventional Gasoline; Panel Report United States – Import Prohibition of Certain Shrimp and Shrimp; Appellate Body Report United States – Import Prohibition of Certain Shrimp and Shrimp Product; and infra, Chap. 6.
95.
See Preamble 5, TBT Agreement. Annex 1 TBT Agreement provides more specific definitions for the terms ‘Technical regulation’, ‘Standard’ and ‘Conformity assessment procedures’.
96.
Art. 1 SPS Agreement.
97.
See http://www.wto.org/english/tratop_e/sps_e/sps_e.htm.
98.
Art. 1 Annex A SPS Agreement.
99.
See infra, Chap. 9.
100.
Art. 1.5 SPS Agreement states ‘The provisions of the agreement do not apply to sanitary or phytosanitary measures as defined in Annex A of the Agreement on the Application of Sanitary and Phytosanitary Measures’. The TBT Agreement is also limited in favour of the Agreement on Government Procurement (Art. 1.4 TBT Agreement).
101.
Van den Bossche (note 34), 815.
102.
Panel Report European Communities – Approval and Marketing of Biotech Products, para. 7.167.
103.
Ibid.
104.
Van den Bossche (note 34), 816.
105.
Palmeter/Mavroidis (note 1), 23. See also Panel Report European Communities – Measures Affecting Asbestos and Asbestos -Containing Products, para. 8.32.
106.
Appellate Body Report European Communities – Regime for the Importation, Sale and Distribution of Bananas, para. 204.
107.
Ibid.
108.
Panel Report European Communities –Measures Affecting Asbestos and Asbestos-Containing Products, para. 8.17. See further: Panel Report European Communities – Trade Description of Sardines, paras. 7.14–7.19 generally, and specifically at para. 7.15 stating ‘Appellate Body suggests that where two agreements apply simultaneously, a panel should normally consider the more specific agreement before the more general agreement’.
109.
Van den Bossche (note 34), 841.
110.
Ibid.
111.
Panel Report European Communities – Measures Concerning Meat and Meat Products (Hormones) (Canada), para. 8.45; Panel Report European Communities – Measures Concerning Meat and Meat Products (Hormones) (US), para. 8.42.

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Max Planck Foundation for International Peace and the Rule of Law, Heidelberg, Germany
Amber Rose Maggio

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Maggio, A.R. (2017). Historical Development of the WTO DSS and National Environmental and Public Health Regulation. In: Environmental Policy, Non-Product Related Process and Production Methods and the Law of the World Trade Organization. European Yearbook of International Economic Law(), vol 1. Springer, Cham. https://doi.org/10.1007/978-3-319-61155-6_3

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DOI: https://doi.org/10.1007/978-3-319-61155-6_3
Published: 07 October 2017
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