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GATT/WTO SYSTEM AND THE PROTECTION OF NON-TRADE VALUES Text of article XX: See the WTO website al_e/gatt47_02_e.htm#articleXX.

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Presentation on theme: "GATT/WTO SYSTEM AND THE PROTECTION OF NON-TRADE VALUES Text of article XX: See the WTO website al_e/gatt47_02_e.htm#articleXX."— Presentation transcript:

1 GATT/WTO SYSTEM AND THE PROTECTION OF NON-TRADE VALUES Text of article XX: See the WTO website al_e/gatt47_02_e.htm#articleXX

2 GATT/WTO SYSTEM AND THE PROTECTION OF NON-TRADE VALUES  Article XX : general exceptions from free trade  protection of public interests and of State sovereignty  Sanitary and Phitosanitary Agreement and Agreement on Technical Barriers to Trade are a dev't of article XX  the meaning of art.XX is qualified by jurisprudence  evolutionary interpretation

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 critics need to refine the LTRAT  Korea-Beef (2000): imported and domestic meat are sold in different shops  Korea invokes art.XX d): protection of consumers  inspiration from 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  Brasilian tyres : unlikely cause-effect chain between the use of retreated tyres and the spread of diseases  precautionary reasoning of the AB  application of the chapeau : decision by another judicial organ does not justify discrimination

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-imports of bovine meat from Canada (panel stage) : fear of BSE the ban can only be lifted by Korean assembly  EU-poultry meat from US: ban on any chemical product other than water various EU agencies issued reports according to which there's no real risk

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-raw materials  art. XX g) : application  is the measure related to..? NO - it would make more sense to limit extraction and not exports - long-term effects on the downstream sector (subsidy) - why a quota and not a duty? the link with the aim is not clear

20 China-raw materials  is the measure adopted in conjunction with...? NO - long list of domestic conservation measures but their actual effect is not clear  is the measure even-handed? NO - the import ban and the production cap do not have an even 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-raw materials selection effect? link between export restrictions on raw materials and production of value-added goods? env'tal Kuznets curve - trade restrictiveness China able to affect world prices entry of new and more efficient competitors uncertain

24 China-raw materials - existence of alternatives improved technology to reduce the level of pollution recycling of consumer goods increased env'l standards China says there are already in place/they do not work the panel disagrees: China policy do not include these measures 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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