Exceptions in International Economic Law: The Environment

1. Exceptionsin International Economic Law: The Environment Froukje Maria Platjouw Department of Public and International Law f.m.platjouw@jus.uio.no

2. Protection of the Environment • Link trade and environment • Sustainable development and environmental protection as goals of the WTO • The legal framework • Preamble, GATT, GATS, TBT Agreement SPS Agreement, TRIPS Agreements… • Article XX GATT- two tier test • Paragraph -b or –g • Chapeau

3. Article XX-b • Paragraph XX-b ”Measures necessary to protect human, animal or plant life or health” • Measure designed to protect animal or plant life or health? • Necessity test

4. ’Measure designed to protect animal or plant life or health’ • More narrow than ’the environment’ • Examples of measures: • Against the consumption of cigarettes • To protect dolphin life and health • To reduce air pollution resulting from the consumption of gasoline • To reduce the risk posed by asbestos fibres

5. Article XX-b: Necessity test • Measure necessary to fulfil that objective? ”Only if there exist no alternative measures which are GATT consistent or less inconsistent, and the country could reasonably be expected to employ these to achieve its objective” (Thailand – Cigarettes) • From ’least-trade restrictive’ to less-trade restrictive, supplemented by a proportionality test ► ► ►

6. Necessity test: EC - Asbestos 1. The WTO member determines level of protection 2. Several factors are taken into account to assess whether an alternative measure is ’reasonably available’ 3. The alternative measure must be less trade restrictive than the measure at issue

8. Article XX-g • Paragraph XX-g ”Measures relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption” • Relates to the conservation of exhaustible natural resources; • Relate to the conservation of exhaustible natural resources: and • Be made effective in conjunction with restrictions on domestic production or consumption

9. ’Exhaustible natural resources’ • The term ’exhaustible natural resources’ embraces both living and non-living resources (US-Shrimp) • Also natural resources located beyond areas of natural jurisdiction (Tuna-Dolphin II, US-Shrimp) • Examples: the conservation of tuna stocks, salmon and herring, dolphin stocks, petroleum, clean air, and sea turtles.

10. ’relating to’… • ”the measure should be ’primarily aimed at the conservation’ of the exhaustible natural resource (US-Gasoline) • ’A substantial relationship’ between the measure and the policy objective (US-Gasoline) • A close and real relationship between the measure and the policy objective, i.e. the measure must be reasonably related to the end pursued (US- Shrimp) • The measure may not be disproportionately wide in its scope or reach in relation to the policy objective pursued (US-Shrimp)

11. ’made effective in conjunction with’ • The requirement of even-handedness: the measure is made effective in conjunction with restrictions on domestic products or consumption • This does not require identity of treatment • Requires restrictions on domestic production or consumption as well

12. The Chapeau ”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:…” • A balancing principle to mediate between the right to invoke Article XX and the obligation to respect the rights of other members; • A qualification making the Article XX exemptions ‘limited and conditional’; • An expression of the principle of good faith in international law, and; • A safeguard against the possibility to misuse the rights

13. ’Arbitrary or unjustifiable discrimination..’ • US-Gasoline • Discrimination is not prohibited per se, only arbitrary and unjustifiable discrimination • US-Shrimp • Discrimination • Which is arbitrary or unjustifiable • Between countries where the same conditions prevail

15. ’Disguised restriction on international trade…’ • Publicity test • Consideration of whether the application of a measure amounts to arbitrary or unjustifiable discrimination • Examination of ’the design, architecture and revealing structure’ of the measure at issue

16. Conclusion • Strict interpretation of the environmental exceptions • Evolutionary interpretation • Always a process of weighing and balancing

17. Economic Emergency Exceptions in International Economic Law:Safeguard Measures Froukje Maria Platjouw Department of Public and International Law f.m.platjouw@jus.uio.no

18. Economic Emergency Exceptions • Background • Purpose • Legal framework • GATT Article XIX • Agreement on Safeguards • Relation? Cumulative requirements

19. Procedural Requirements • Investigation (Article 3.1 SA) • Immediate notification of investigation (12.1 SA) • Provide ’all pertinent information’ (12.2 SA) • Provide ’adequate opportunity’ for prior consultations with affected members (12.3 SA)

20. Substantive Requirements • An increase of imports of a product • (Threat to) Serious injury • Causal relationship

21. 1. Increase in imports • An increase of imports of a product must be caused by developments that were not foreseen and must result from obligations that the country applying safeguard measure must respect under the GATT • Argentina – Footwear Safeguard • An increase of imports ‘in such increased quantities’ as to cause or threaten serious injury. • Recent increase, sudden increase, sharp increase and significant increase.

22. Unforeseen developments • Developments that were note foreseen at the time of the latest trade negotiation. (must be demonstrated) • Examples: change in currency value, technical breakthrough or a change in consumers’ preferences

23. 2. (Threat to) Serious injury The increase of imports must cause or threaten to cause ’serious injury’ to a domestic industry producing a ’like’ or ’directly competitive’ product. • Higher standard than ’material injury’ (as for cvd) • Serious injury • ’A significant overall impairment in the position of a domestic industry’ (Argentina – Footwear Safeguard) • Threat of serious injury • Serious injury that is clearly imminent (art. 4.1 SA) • ’high degree of likelihood that the injury will materialize’ (US-Lamb Safeguard)

24. Domestic industry • Producers of ‘like or directly competitive products’ operating within the territory of a member. (Article 4.1(c) SA) • Physical characteristics of the products • Their end-use • Consumer habits and preferences regarding the product • Customs classification of the product

25. 3. Causal relationship • Causal link between increased imports and the serious injury or threath thereof (Art. 4.2 (b) SA) • Non-attribution requirement: other causal factors have not contributed to increased imports? Requires disentangling causal factors (see US – Lamb)

26. Three-step approach (US-Wheat Gluten Safeguard) • Distinguish effects caused to domestic industry by increased imports from effects caused by other factors • Attribute to increased imports (on the one hand) and other factors (on the other hand) ’injury’ caused by all of these different factors • Determine whether a ’causal link’ exists between increased imports and serious injury, and if so whether this link involves a ’genuine and substantial relationship of cause and effect’.

27. Limits on the application of safeguards • Parallelism / non-discriminatiory application (2.2 SA) • Extent of safeguards (5.1 SA) • Developing countries (9.1 SA) • Duration (7.1 SA) • Notification and consultation (3, 12 SA) • Compensation (8.1 SA) • Standard of review: DSU