GATT Article XX Abbreviations
World Trade Organization (WTO)
European Community DSB-Dispute Settlement Body
US-US Cases Involved in Dispute (Case)
GATT Panel Results
Shrimp lawsuit in the US is unjustified.
Case of Brazil-Retracted Tires not warranted
Reasonable EC-Asbestos Case
Unjustified instance of US gasoline
Unjustified in the Tuna-Dolphin I case
Unjustified in the Tuna-Dolphin II case
Justified by EC- Asbestos and Asbestos-Containing Products
US-Taxes on Cars Are Not Justifiable
Thailand: Cigarette Restrictions Are Not Justified
US TUNA limitation is unjustified
Introduction
The World Trade Organization seeks to keep multilateral trade that is open, equitable, and free from discrimination, while also promoting sustainable development and protecting the environment. Article XX of the Trade and the GATT Permits those member nations to pursues the certain course of action even if those measures are World Trade Organization- inconsistent ("Research Handbook on Climate Change and Trade Law"). Member states are given a certain flexibility to come up with laws that support the numerous regulation such as conserving the natural resources; protection of animal and human health and preservation of public morals. Issues related to the environment have been around for decades, but many nations still face controversies when trying balance between economic activities and environmental protection ("Environment and Trade"). Many multilateral and bilateral treaties have been signed by various states to seek to cope up with the emerging environmental issues. If any country violates the environmental agreement, then the issue can be addressed according to the concerned contravention and agreement. This essay will focus on the application of Article XX of the GATT with particular reference to climate change and environmental protection.
After numerous controversies arose in 1990s WTO adopted provisions in the GATT that created the GATT free trade rules. Some of the exceptions codified at Article XX, all nations to protect national resources, to promote human health, and to protect the national treasure (Tian, Xiaohui et al. 24). Since then various countries have enacted their policies designed to protect the environment; any controversies that arise are handled by the WTO dispute settlement body (DSB). Article XX goes further to allows member countries to come up with restrictions relating to the protecting of natural resources that are exhaustible (Von Glahn, Gerhard, and James Larry Taulbee 34).
Article XX
The World Trade Organization consists of 60 member states which account for over ninety-seven percent of world trade. According to the rules, members must minimize the restriction on international trade. It can be concluded that flexibility from the world trade organizations contingency measures have led to a robust system, despite the various levels of conflict that are portrayed in member state goals. WTO agreements define the guidelines for the conduct of the trade policy. According to these rules, members must strike a balance between flexibility and commitment; too little commitment might render the rules unsustainable, but too much flexibility can undermine the value of commitment. General Agreement on Tariffs and Trade outline a variety of duties owned by the member states; however, Article XX acts as an adjustment policy, insurance mechanism, or safety valve which enables member states to balance various policies with free trade. Trade between nations offer a wide variety constraints such as climate change and opportunities. Most of the opportunities are not however realized because policies that various countries put in place. Trade between countries can become green, and the present rules can be amended to make it so (Kaniaru, Donald 98). Some changes have started being witnessed for instance the present negotiations aim at eliminating duty on goods related to the environment and regional trade agreements that advocate for environmental conservation (Wartini, Sri 42).
There has been a persistent conflict within the WTO system between economic interest and environmental interest. Despite the fact that environmental protection remains to be a major issue that affects the international community, the WTO is not itself firm to promote the goals that are related to environmental sustainability. This body was created with the intention of removal of the trade barriers and trade liberalization, to facilitate a free flow of goods and service among member countries (Mara, Wil). The WTO adopted some of the rules that are contained in Article XX for the purpose of protecting the environment. For this reason, there is a linkage between the international environmental law and international economic law (Woodward, John 23). This was demonstrated in a case brought against Thailand for restricting the importation of cigarettes; the panel stated that such a violation went against trade liberalization and thus inconsistent with Article XX. Another similar case arose between the United states and Canada fish export ban. The Canadian government had maintains certain regulations that prohibited the sale of exportation of unprocessed Salmon and herring. The GATT panel stated that these measures were contrary to Article XX.
The interpretation of this article (chapter XX) has been subjected to different conflicting views. The environmentalists are worried about the environmental protection over the trade liberalization while other bodies such as WTO appellate body is majorly concerned about trade liberalization over the environmental concerns. The issue is still unresolved despite an attempt being made to try and balance between environmental protection and trade liberalization objectives (The Canadian Yearbook of International Law 21). Moreover, the appellate body and WTO/GATT interpretation of the article to clarify some of the issues analysis that tends to differ from one panel to the other. The World Trade Organization agrees that the past trade measures have been essential in encouraging enforcement of and participation in the multinational environmental agreements. The WTO push for expansion of free trade will indeed lead to the increase in wealth all over the world. In the developing states, however, the low levels of income can compromise environmental issues ("The Law and Policy of the World Trade Organization").
Article XX as exception
Because of its major objective which is to pursue trade liberalization between nations, a major hurdle for WTO is to make sure that there is freedom on governance in pursuing the national policies that are legitimate is not compromised. For that reason the GATT Article XX comes up with a wide a variety of excuses by which World Trade Organization member can rely on to disdain from the overall obligation that was that was conferred upon it by GATT 1994 ("Environment, Human Rights And International Trade"). Despite this, there remains to be the recurring problem is to strike a balance between those legitimate policies established by governments but remain to be nondiscriminatory against foreign trade and those policies that have been enacted by various nations that support the government’s legitimate objectives but are inconsistent with the idea of free trade. It is therefore important that balance is struck between the duty of all members to respect the rights of other states when it comes to trade and the rights of member nations to invoke exceptions under this article (Ackerman, Frank et al. 7). It is, therefore, true that GATT Article XX only becomes appropriate when certain measures that have been taken by member states contravenes any provisions that are contained in GATT 1994.
According to the measures outlined by Article XX (d), the measure at issues must secure a general compliance and also designed to secure relevance compliance with regulations that are themselves in line with the provisions of GATT. All these enactments indicate the WTO’s commitment to an equitable, non-discriminatory trade between member states. The trade must also ensure that the environment remains protected. This instructions persistent effort to come up with a proper framework for resolving various contradictions between environmental protection and trade liberalization has laid focus on the interpretation of Article XX of GATT ("Sustainable Development In World Investment Law"). The article also highlights that trade must promote human health for instance in EC-asbestos cases it was stated that WTO supports policies that are enacted by member states that aim at protecting human safety and health to any extent as long as it is necessary.
Article XX comes up with certain exceptions that companies must observe in their quest for trade; such exceptions aims at conserving natural resources that are exhaustible. Article XX demands that member states must adhere to particular trade norms that are the prerequisite to certain exceptions (Johnson, Craig A., and Krishna Krishnamurthy 12). This chapter presents an essential question when it comes to trade environment policy and stipulates that national governments must have the policy space that could not only give them a chance to achieve the environmental goals but also restrict trade in particular sectors of the economy, so that protect the environment or limit overexploitation of certain resources that are harmed in the process of production ("The Greening Of World Trade").
In 1989, for instance, United States government with the intention of protecting the decking population of the sea turtles banned the importation of shrimps that were harvested by a technology that affected the sea turtles. Even though the United States government only limited the restriction to those nations in the wider Caribbean, the federal court made a determination that the law is applied universally to all countries in the world ("General Agreement on Tariffs and Trade Multilateral Negotiations"). Those countries that had harvested the shrimps and exported them to the United States raised a complaint with the WTO in 1996 claiming that the ban violated the United States obligation to them under GATT. The disputes resolution body that was mandated to resolve this dispute ruled in favor of the in favor of the Asian nations. The US made an appeal against this determination with the intention of questioning whether their laws met all the conditions of Article XX (Oppenheim, L et al. 8). In a similar case, Brazil-Retreaded Tyres 2007 the appellate court held that the ban on the importation of the retreated tires aimed at reducing the in waste tire volumes.
Because of the previous determination article XX remains to be at the center of controversies and the inability of various nations to agree on the needed adjustment indicates brings problems that limit environmental protection ("Cases and Materials on International Law"). Because the issues that surround this article seems to be divisive and complicated to the international bodies as well as political leaders refuse to exercise some form of leadership and bridge the differences. The failure of the trade ministers to come up amendments has indeed weakened the effort to try and boost trade while at the same time ensuring that the environment is secure ("International Environmental Law Reports"). A similar scenario was witnessed in the US Taxes on Automobiles case; the EU was of the view that the tax imposed violated Article XX but the GATT panel upheld the tax as it fell more on the cars that were imported.
The environment-trade conflict continues to take center stage and therefore must be addressed within the shortest time possible. Various nations that have in the past been involved in a series of cases have no option but to resort to the dispute settlement process of WTO/GATT ("Improving Compliance with International Environmental Law"). Each of the dispute in many cases challenged article XX consistent with the national policy that had been taken by one state alone, limiting trade for the purpose of environmental conservation ("WTO Appellate Body Repertory of Reports and Awards"). In the United States- Gasoline case for instance when the government sort to reduce emission and composition so as to reduce the amount of pollution in the US. The appellate body determined that US policy meant to protect the environment thus fell under Article XX.
Tuna-Dolphin I 1991 report came up with the certain restrictive interpretation of Article XX ("WTO - Technical Barriers and SPS Measures"). The panel came up with a conclusion that Article XX paragraphs only protect the environment when the state comes up with trade measures to try and protect it and do not protect the resources that occur outside its jurisdiction or measures to prevent harm to the environment. In the United States tuna dispute it was held that the embargo did not fall under the chapter XX because it did not protect the dolphins directly but it simply tried to put some form of pressure on the foreign government to come up with certain policies that designed to protect dolphins. That implied the measures that were taken by the government couldn’t be taken as primarily as aiming to protect dolphins (Srivastava, Leena 69). However, the Tuna-Dolphin II the panel took a slightly different point of view by noting that the state isn't prevented from adopting trading measures to protect the environmental resource or global commons that fall outside their jurisdiction. The panel stated that actions must protect the resources in question.
Conclusion
The WTO continues to play a vital role in ensuring that the environment continues to be protected. Controlling the subsidies of fishing and dismantling agricultural protectionism are some of the areas that need quicker intervention so as to promote the sustainable development. So as to reinvigorate and maintain the multilateral trade system, the newer measures must be sort by the WTO to restore chapter XX which is an integral and original in the trade structure into its original position as a safe harbor that facilitates trade between different nations and also facilitate protection of the environment (Orme, Helen 22). Countries often pursue economic interests and forget environmental protection a factor that threatens biodiversity, it is thus important that civil societies and the government can come up with ways of correcting the trade practices that destroy the planet rather than trying to kill the WTO, which would be suicidal to the environment as well as trade (YUE, C, and C SUN 17). What is needed in the present environment is the adoption of a broad that strikes a balance between environment and trade issues. The chapeau of the article, therefore, becomes significant with this regard. Nations have the role of exceeding legal limit when it comes to trade, but it is important to put in place policies that will safeguard the environment. Article XX has proved to be significant in addressing environment and trade issues simultaneously, so as to invoke any exceptions the relevant nations must come with clean hands.
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