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GATT/WTO SYSTEM AND THE PROTECTION OF NON-TRADE VALUES

GATT/WTO SYSTEM AND THE PROTECTION OF NON-TRADE VALUES. Text of article XX: See the WTO website http://www.wto.org/english/ docs_e / legal_e /gatt47_02_e.htm#articleXX. GATT/WTO SYSTEM AND THE PROTECTION OF NON-TRADE VALUES. Article XX : general exceptions from free trade

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GATT/WTO SYSTEM AND THE PROTECTION OF NON-TRADE VALUES

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  1. GATT/WTO SYSTEM AND THE PROTECTION OF NON-TRADE VALUES Text ofarticle XX: See the WTO website http://www.wto.org/english/docs_e/legal_e/gatt47_02_e.htm#articleXX

  2. GATT/WTO SYSTEM AND THE PROTECTION OF NON-TRADE VALUES • Article XX : generalexceptionsfrom free trade • protectionof public interests and of State sovereignty • Sanitary and Phitosanitary Agreement and Agreement on TechnicalBarrierstoTrade are a dev't ofarticle XX • the meaningofart.XXisqualifiedbyjurisprudence • evolutionaryinterpretation

  3. The Tuna-Dolphin cases • import ban by the US because nets used in order to fish tuna accidentally catch dolphins • violation of art.XI and justification by art.XX b) • extraterritoriality: indirect modification of WTO members' law • PPMs issue : process and production methods: can i distinguish products on the basis of the way they are processed?

  4. The Tuna-dolphin cases • the measure is refused : the measure is not “necessary” • GATT accused to be not favorable to env'tal protection • a second panel created about the same problem does not rule out the possibility of extraterritorial measures

  5. The LTRAT and the necessity principle • some paragraphs of article XX use the term “necessary” • necessity is a principle of int'l law : a measure is not stronger than necessary to achieve its aim • a measure is illegal if there are other measures less restrictive and equally effective to reach that aim

  6. The LTRAT and the necessity principle • LTRAT= least trade restrictive alternative test • heavy burden of proof on the State invoking art.XX • alternative measures are easy to find but often more expensive • art.XX is an exception= restrictive interpretation

  7. The LTRAT and the necessity principle • example: Thailand cigarettes • import ban on cigarettes for public health reasons • the measure is not necessary: - less restrictive alternatives (training programs) - no internal measures = discrimination

  8. The weighing and balancing test • in the light of the criticsneedtorefine the LTRAT • Korea-Beef (2000): imported and domestic meat are sold in differentshops • Koreainvokesart.XX d): protectionofconsumers • inspirationfrom EU jurisprudence

  9. The weighing and balancing test • assessing the necessity of a measure implies the application of 3 criteria : • importance of the aim • effectiveness of the measure • trade restriction

  10. The weighing and balancing test • risk to apply the test differently according to the dispute • ex. France - ban on asbestos products • the aim is of the highest importance • the measure is indispensable • trade restrictiveness is not assessed

  11. The weighing and balancing test • problems of the test: - are some interests more important than others? - the third criterion implies a balancing of the aim with trade interests - in principle WTO cannot put into discussion members' level of protection of public goods

  12. The chapeau • applied after the paragraphs • it deals with the way the measure is implemented • prevention of abuse of right • striking a balance between the rights of the State imposing the measure and the right of other States to free trade

  13. The chapeau • ex. US-Shrimps - import ban on shrimps fished without a turtle excluding device - the measure falls under art.XX g) but it violates the chapeaux - non transparent, unilateral and discriminatory process

  14. Article XX and the precautionary principle • Brasiliantyres : unlikelycause-effectchainbetween the useofretreatedtyres and the spread ofdiseases • precautionaryreasoningof the AB • applicationof the chapeau : decisionbyanotherjudicialorgandoesnotjustifydiscrimination

  15. Recent art.XX cases • EU-ban on seal meat and products - exception for Inuit traditional production - seals are an endangered species - integral part of indigenous lifestyle • case dealt with by the EU court • ECHR and IACHR case-law • possible application of art.XX g)

  16. Recent art.XX cases • Korea-importsof bovine meatfrom Canada (panel stage) : fearof BSE the ban can onlybeliftedbyKoreanassembly • EU-poultrymeatfrom US: ban on anychemicalproductotherthan water various EU agenciesissuedreportsaccordingtowhichthere's no realrisk

  17. China-raw materials • export ban of raw materials supported by: - sovereignty over natural resources - need to protect and manage raw materials - DCs right to preserve resources for their economic dev't • art.XX cannot be used for violations of accession protocols

  18. China-raw materials • art.XX g): general principles • is the measure related to...? no conflict between sovereignty, sustainable dev't and trade liberalisation • is the measure adopted in conjunction with...? even-handedness

  19. China-rawmaterials • art. XX g) : application • is the measurerelatedto..? NO - itwouldmake more sensetolimitextraction and notexports - long-termeffects on the downstream sector (subsidy) - why a quota and not a duty? the link with the aimisnotclear

  20. China-raw materials • is the measureadopted in conjunctionwith...? NO - long listof domestic conservationmeasuresbuttheiractualeffectisnotclear • is the measureeven-handed? NO - the import ban and the production cap do nothaveaneven impact on importers/exporters

  21. China-raw materials • art.XX par. b) supported by: - production from scrap products is less polluting - export duties make sure there is a stable supply of scraps - restrictions on primary production reduce pollution

  22. China-raw materials • restrictions on primary products - the measure does not fall under par.b) because the real aim is economic - contribution to the aim export restrictions = reduced production and pollution? unreliable dataset upstream-downstream interactions not accounted for

  23. China-rawmaterials selectioneffect? link between export restrictions on rawmaterials and production ofvalue-addedgoods? env'tal Kuznets curve - traderestrictiveness China abletoaffect world prices entry ofnew and more efficientcompetitorsuncertain

  24. China-raw materials - existenceofalternatives improvedtechnologyto reduce the levelofpollution recyclingof consumer goods increasedenv'l standards China saysthere are already in place/they do not work the paneldisagrees: China policy do not include thesemeasures and those in place do not work

  25. China-raw materials • restrictions on scrap products scrap = less pollution? export restrictions necessary to enhance recycling? reducing scrap price can also reduce the incentive to collect it - the are alternatives • CHINA IS IN BREACH

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