ASSIGNMENT COVER SHEET

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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 the post-reformists scholars have looked

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
1

The General Agreement on Tariffs and Trade, October 30, 1947, 55 UNTS 194, art I;1 (entered into force 1 January 1948).

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:

Ibid, art XI;1.

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

Ibid, art XX.

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.

The World Trade Organisation, Environment: Disputes 1(2012) World Trade Organisation <http://www.wto.org/english/tratop_e/envir_e/edis01_e.htm> at 12 April 2012. 5 GATT, October 30, 1947, 55 UNTS 194, art XX (g) (entered into force 1 January 1948).

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

The World Trade Organisation, Environment: Disputes 2(2012) World Trade Organisation Laura Nielsen, The WTO, Animals and PPMs (1st ed, 2007) 245.

<http://www.wto.org/english/tratop_e/envir_e/edis02_e.htm> at 12 April 2012.

7

C. US-Tuna (Mexico)

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

Under the Marine 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 country even 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

The World Trade Organisation, Environment: Disputes 4 (2012) World Trade Organisation <http://www.wto.org/english/tratop_e/envir_e/edis04_e.htm> at 11 April 2012. 9 Ibid. 10 Ibid.

concerning quality, or content of tuna are applicable, but discrimination on process is forbidden.11

D. US - Shrimp

US Shrimp addresses a slightly different aspect of Article XX the 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 the Endangered 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 12

Ibid. The World Trade Organisation, Environment: Disputes 8 (2012) World Trade Organisation <http://www.wto.org/english/tratop_e/envir_e/edis08_e.htm> at 11April 2012. 13 Ibid. 14 Arjun Ponnambalam, U.S. climate change legislation and the use of GATT Article XX to justify a Competitive Provision in the wake of Brazil-Tyres (2008) 40(1) Georgetown Journal of International Law 261, 271.

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
15 16

GATT, October 30, 1947, 55 UNTS 194, art XX (entered into force 1 January 1948). The World Trade Organisation, above n 12. 17 The World Trade Organisation, Environment: Dispute Settlement: DS332 (2012) World Trade Organisation <http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds332_e.htm> 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. 19 Bradley J. Condon, Climate Change and Unresolved Issues in WTO Law (2009) 12(4) Journal of International Economics Law 895, 918. 20 Gray, above n 18, 613. 21 The World Trade Organisation, above n 12.

been invoked by a developing country and;22 secondly, it was the first time that a nonmigratory 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.

22 23

Gray, above n 18, 611. Condon, above n 19.

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 rewritten from scratch in 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:

24

Lorenzo 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.

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 Panel but 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

26

Marrakesh Agreement Establishing the World Trade Organisation, 33 I.L.M 1225, 44 (1994) as cited by Ibid, 271. 27 Thomas J. Schoenbaum Free International Trade and Protection of the Environment. Irreconcilable Conflict? (1992) 86 No. 4 The American Journal of International Law 700, 712. 28 Ibid, 716-717. 29 Ibid, 720.

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

30 31

Ibid, 722. necessary to protect public morals 32 Nielsen, above n 7, 12. 33 Ibid, 13. 34 Ibid, 202.

the text.35 This is precisely what Schoenbaum had recommended!36 Unfortunately, Nielsen, points out that it was not until EC-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 Panel found 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.

35 36

Ibid. Schoenbaum, above n 27, 720. 37 Nielsen, above n 7, 202. 38 di pepe above n 24, 283. 39 Ibid.

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 XX cases, 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

40

Edith 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. 43 Ibid 729. 44 Idib, 730.

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.

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 thread they 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 in BrazilRetreaded 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 works which focus of climate change remain 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
45

Charles 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) The Australian < http://www.theaustralian.com.au/news/features/politics-trumps-a-moral-challenge/storye6frg6z6-1225859592923> at 26 April 2012.

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. Of particular 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 48

Condon, above n 19, 895. Ibid. 49 Ibid, 917.

species turtles, salmon, herring, tuna and dolphins50 whereas paragraph (b) has been applied only to the conservation of a domestic species monkeys.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 identified that 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

50 51

Ibid, 917. Ibid, 918. 52 Ibid 918. 53 Neislen above n 7, 191. 54 Ibid, 210. 55 Condon, above n 19, 917.

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 is for WTO jurisprudence to evolve to 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 Doyle joins 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 of Korea-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 in Brazil-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 the OCntext of the China-Audiovisual products Case (2011) 29 Boston University International Law Journal 143, 152-160.

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 in BrazilRetreaded 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 the Brazil-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

57 58

Panel Report Brazil Retreaded Tyres in Ibid, 160. Sbastien Thomas, Trade and environment under WTO rules after the Appellate Body report in Brazil-Retreaded Tyres (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 in Brazil-Tyres (2009) 43(3) Journal of World Trade 507, and Ponnambalam above n 14. 59 Appellate Body Report Brazil Retreaded Tyres p145 in, Ponnambalam above n 14, 273.

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 and Brazil-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 find justifiable
60 61

Ibid, 283. Ibid. 62 Appellate Body Report Brazil-Retreaded Tyres para 227, in Davies above n 58, 518. 63 Ponnambalam above n 14, 287. 64 Ponnambalam above n 14, 283.

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 standard that 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 arrive at 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 66

Doyle, above n 56, 166. Condon, above n 19, Ponnambalam above n 14, Thomas, above n 58. 67 Beniot, above n 45.

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. 69 Beniot, above n 45, 587. 70 Ibid.

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 cooperative 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.

BIBLIOGRAPHY
A. ARTICLES/ BOOKS/ REPORTS
1. 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 the New Approach in Brazil-Tyres (2009) 43(3) Journal of World Trade 507. 4. Di pepe, Lorenzo Schiano, 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. 5. Doyle, Christopher, Gimme Shelter: The Necessary Element of the GATT Article 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 of Brazil-Tyres (2008) 40(1) Georgetown Journal of International Law 261. 9. Schoenbaum Thomas J., Free International Trade and Protection of the Environment. Irreconcilable Conflict? (1992) 86 No. 4 The American Journal of International Law 700. 10. Thomas, Sbastien, Trade and environment under WTO rules after the Appellate Body report in Brazil-Retreaded Tyres (2009) 4(1) Journal of International Commercial Law and Technology 42. 11. Weiss, Edith Brown, Environment and Trade as Partners in Sustainable Development: A Commentary (1992) 86 No. 4 The American Journal of International Law 728.

B. TREATIES

1.

The General Agreement on Tariffs and Trade, October 30, 1947, 55 UNTS 194 (entered into force 1 January 1948).

C. OTHER SOURCES
1. Onselen, Peter Van, Politics Trumps a Moral Challenge (2010) The Australian < http://www.theaustralian.com.au/news/features/politics-trumps-a-moralchallenge/story-e6frg6z6-1225859592923> at 26 April 2012. 2. The World Trade Organisation, Environment: Disputes 1(2012) World Trade Organisation <http://www.wto.org/english/tratop_e/envir_e/edis01_e.htm> at 12 April 2012. 3. The World Trade Organisation, Environment: Disputes 2(2012) World Trade Organisation <http://www.wto.org/english/tratop_e/envir_e/edis02_e.htm> at 12 April 2012. 4. The World Trade Organisation, Environment: Disputes 4 (2012) World Trade Organisation <http://www.wto.org/english/tratop_e/envir_e/edis04_e.htm> at 11 April 2012. 5. The World Trade Organisation, Environment: Disputes 8 (2012) World Trade Organisation <http://www.wto.org/english/tratop_e/envir_e/edis08_e.htm> at 11April 2012. 6. The World Trade Organisation, Environment: Dispute Settlement: DS332 (2012) World Trade Organisation <http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds332_e.htm> at 14 April 2012.