Trade and Environment by yantingting


									Trade and Environment

          Jackie Peel, Faculty of
Recap Module 3

   Why might MEAs include trade measures?
   Is a non-party to an MEA bound by trade
    restrictions imposed pursuant to an MEA?
   How does the EC argue the Biosafety
    Protocol is relevant in the Biotech case?
Issues raised by Sam’s presentation

   Adoption of ‘sustainable development’ framework situates
    environmental issues in a wider context of trade/economic
     –   Does this lead to chilling effect on MEAs or ‘greening’ of the WTO?
   Suggests new institutional organisation not practical solution for
    dealing with trade and environment interface
     –   Lack of political will to negotiate in multilateral fora
             Does this increase incentives for unilateral action?
             Potentially gives increased power to WTO dispute settlement system
   EC – Biotech dispute involves two, equally legitimate
    approaches to novel technology
     –   What should be the criteria used to judge their legal validity:
         science alone or alongside other considerations?
Module 4: Health & enviro standards
Key points

   Non-tariff barriers to trade
   Agreements governing domestic health and
    environmental standards
    –   Scope of the TBT Agreement
    –   Scope of the SPS Agreement
    –   Harmonisation
   Science and risk assessment requirements in the
    SPS Agreement
    –   Hormones and Apples disputes
‘Non-tariff barriers’

                  NTB = restrictions limiting imports but
                   not in form of tariff
                    –   Environmental regulatory requirements
                        can be NTBs
                  Could take form of phytosanitary
                   treatment to remove pests
                    –   Covered by SPS Agreement
                  Could take form of mandatory
                   requirement to label asbestos-
                   containing product
                    –   Covered by TBT Agreement
                  Measures must comply with new
                    –   Non-discriminatory measure may fail
Goal of SPS and TBT

   Concern that previous GATT disciplines ineffective in
    preventing unnecessary obstacles to trade in form of
    SPS or technical requirements
   Promote (though don’t mandate) use of international
    standards as a basis for regulation to minimise
    effects on trade
    –   Recognition that may be legitimate differences between
        Members because preferences and circumstances vary
   SPS has additional discipline that measures must be
    based on scientific evidence and risk assessment
Outline of the TBT Agreement

   Applies to standards and ‘technical regulations’ which are not
    SPS measures (1.5)
   Technical regulations are mandatory product standards
     –   See Annex 1: 1
   Tech regs subject to general ‘national treatment’ requirement
    for ‘like products’ (2.1)
     –   Should not create ‘unnecessary obstacles’ to trade
             No more trade-restrictive than ‘necessary to fulfil a legitimate
              objective, taking account of the risks non-fulfilment would create’ (2.2)
   Required to use international standards ‘as a basis’ for tech
     –   ex. where ‘would be an ineffective or inappropriate means for the
         fulfilment of the legitimate objectives pursued’
What amts to a tech. regulation?

   Wide scope of application – depends on 3
    criteria (Asbestos)
    –   Doct must apply to an identifiable product or
        group of products (which can include general
    –   Regulation imposes at least 1 product
    –   Compliance with regulation is mandatory
Intn standards and the Sardines case

   Peru challenged a pre-WTO EC
    regulation stipulating that only
    sardina pilchardus could be
    described and marketed as ‘sardines’
   Codex standard provided only
    sardina pilchardus could be
    described as ‘sardines’ but 20 other
    species could also use that
    description if accompanied by a
    reference to country of origin,        ‘Peruvian sardines’
    geographic area, species or common
    name of species
Sardines case

                   Was this regulation
                    caught by TBT?
                   Must intn stds be
                    adopted by consensus?
                   How closely did the EC
                    measure need to
                    conform to the Codex
Measures covered by SPS Agreement

   SPS Agreement, Annex A
   Any measure applied:
    –   (a) to protect animal or plant life or health within the territory of the
        Member from risks arising from the entry, establishment or spread
        of pests, diseases, disease-carrying organisms or disease-causing
    –   (b) to protect human or animal life or health within the territory of
        the Member from risks arising from additives, contaminants, toxins
        or disease-causing organisms in foods, beverages or feedstuffs;
    –   (c) to protect human life or health within the territory of the Member
        from risks arising from diseases carried by animals, plants or
        products thereof, from the entry, establishment or spread of pests;
    –   (d) to prevent or limit other damage within the territory of the
        Member from the entry, establishment or spread of pests
GMO laws as SPS measures?

                                                Any measure applied to
                                           protect the life or health of flora
 Animals = fish and wild fauna               fauna or human beings within
 Plants = forests and wild flora                the territory of a country
        Pests = weeds                      from risks arising from the entry
                                          establishment or spread of weeds
               +                                   or to prevent or limit
                                                other damage within the
    Potential GMO risk as                        territory of the country
        ‘superweeds’                         from the entry, establishment
                                                   or spread of weeds

      US: weed is a “plant that grows . . . where [it is] not wanted.”

   EC: GMO regulatory scheme concerned with broader range of risks
SPS and harmonisation

   Members can choose ‘appropriate level’ of SPS protection
   To promote harmonisation, Members required to ‘base’
    measures on international standards (3.1)
     –   Standards those of Codex, OIE and IPPC
   ‘Conforming’ measures ensure presumption of consistency
   Permissible for Members to have stricter standards if satisfy
    requirements of art. 3.3
   Note Victor’s assessment that international standards of limited
    practical relevance
     –   “because the SPS Agreement has raised the political profile of
         SPS standard-setting bodies, it has become increasingly difficult
         for them to agree on common standards”
Hormones and harmonisation

   How did the issue of
    regulatory harmonisation
    arise in the Hormones case?
   How did the AB interpret the
    relevant provisions of Art. 3?
   Are there still sufficient
    incentives to base measures
    on intn stds following these
SPS risk assessments
   A domestic regulation of a Member that can be
    classed as an SPS measure -
    –   must be applied (1) only to the extent necessary
        to protect human, animal or plant life or health, (2)
        must be based on scientific principles and (3) not
        maintained without sufficient scientific evidence.
    –   must be based on a risk assessment of the risks
        to human, animal or plant life or health
    –   shall avoid arbitrary or unjustifiable distinctions in
        protective levels it considers to be appropriate in
        different situations, if such distinctions result in
        discrimination or a disguised restriction on
        international trade
    –   shall be not more trade-restrictive than required to
        achieve their appropriate level of sanitary or
        phytosanitary protection, taking into account
        technical and economic feasibility
Hormones and risk assessment

               What does the AB decision in
                Hormones reveal about the
                nature of the risk assessment
                required under the SPS
               Can a Member rely on the
                precautionary principle to
                justify a less rigorous risk
SPS Scientific evidence requirements

   Science used as test of necessity
   Based on ‘scientific principles’ and not
    maintained ‘without sufficient scientific
    evidence’ (2.2)
   Risk assessment to take into account
    ‘available scientific evidence (5.1)
   Provisional measures where ‘relevant
    scientific evidence is insufficient’ by basing
    measures on ‘available pertinent
    –   Note additional requirements of art. 5.7

            Case concerned Japan’s phytosanitary
             requirements for apples to protect
             against fire blight
            What does AB decision in Apples add to
             understanding of scientific evidence
             requirements of SPS Agreement?
            What is the scope for ‘precautionary’
             measures to be adopted?
            How do you think similar Australian
             measures will fare if challenged by NZ?
Question for consideration

   What scope is there for WTO Members to
    introduce or maintain trade-impacting
    environmental regulations that are stricter
    than relevant international standards?
Monday’s class

   Guest lecture: David Morgan – TBT and eco-
   Afternoon – Module 5
   Work on case notes over weekend

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