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TRADE
AND ENVIRONMENT, HEALTH:
GENERAL EXCEPTIONS IN
ARTICLE XX OF GATT Viet Nam
Steel imports:
- Only eco-friendly production is allowed.
IN THE WORLD TRADE ORGANIZATION
- Environment-harmful production is banned!
- Dr. Dao Gia Phuc - Violate WTO law??? Dr. Dao Gia Phuc
Sustainable development
Veggie & Non Deep-fried Non Deep-fried Deep-fried
past present
Violate WTO rules???
Dr. Dao Gia Phuc Dr. Dao Gia Phuc
Overall, import weighted tariff on industrial products
40
Average Tariff % %
35
30 tar
25
iff NON TARIFF MEASURES
20
15
10
0
1947 1962 1972 1987 1995 1947 2019
Dr. Dao Gia Phuc Dr. Dao Gia Phuc
Legal basis
WTO rules ?
Avoiding Allowing for
unnecessary regulatory autonomy - Article XX of the GATT 1994
obstacles to int’l to protect legitimate
trade interests - Technical Barriers to Trade Agreement
(TBT Agreement)
(para. 120):
“The standard of “arbitrary discrimination”, for
example, under the chapeau may be different for a
measure that purports to be necessary to protect
public morals than for one relating to the products
of prison labour.”
Dr. Dao Gia Phuc Dr. Dao Gia Phuc
Article XX of the GATT 1994 Article XX of the GATT 1994
US - Shrimp “Subject to the requirement that such measures are not applied in a
Appellate Body 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) necessary to protect public morals;
(b) necessary to protect human, animal or plant life or health;
…
(j) imposed for the protection of national treasures of artistic,
historic or archaeological value;
(g) relating to the conservation of exhaustible natural resources
…”
Dr. Dao Gia Phuc Dr. Dao Gia Phuc
Specific exceptions under Article XX: Specific exceptions under Article XX:
Article XX(b) Article XX(b)
“(b) necessary to protect human, animal or plant life or health” 1. The policy objective:
§ Examine the design and structure of the measure.
1. The policy objective pursued by the measure is the Ex: measure to reduce the smoking of cigarettes, reduce air
protection of the life or health of humans, animals pollution, reduce risk arising for accumulation of waste tyres,
etc.
or plants;
§ Cover public health policy as well as environmental
policy measures: not just only the existence of risks to
2. The measure is necessary to fulfill that policy
environment but also specifically of risks to health.
objective. (Brazil – Retreaded Tyres (2007)).
Specific exceptions under Article XX: AB report, Brazil – Retreaded tyres, para. 178:
Article XX(b)
“in order to determine whether a measure is ‘necessary’
2. ‘Necessity’: … a panel must consider ... particularly the importance
of the interests or value at stake, the extent of the
(Brazil – Retreaded Tyres (2007)). contribution to the achievement of the trade measure’s
objective, and its trade restrictiveness. If this analysis
Measure à Necessity? yields a preliminary conclusion that the measure is
necessary, this result must be confirmed by comparing
the measure with possible alternatives, which may be
less trade restrictive while providing an equivalent
contribition to the achivement of the objective. This
comparison whould be carried out in the light of the
importance of the interests or values at stake ...
Dr. Dao Gia Phuc
Dr. Dao Gia Phuc
Specific exceptions under Article XX: Specific exceptions under Article XX:
Article XX(b) Article XX(b)
2. ‘Necessity’:
2. ‘Necessity’:
§ Must consider the extent of contribution to the
(Brazil – Retreaded Tyres (2007)). achievement o the measure’s objective, and its trade
Measure à Necessity? restrictiveness;
§ The result of ‘Necessity’ must be confirmed by
comparing the measure with possible alternatives,
which may be less restrictive while providing the
equivalent contribution to the achievement of the
objective.
(Brazil – Retreaded Tyres (2007)).
§ It is for WTO Members to determine the level of protection 3. Be ‘made effective in conjunction with’ restrictions on
of health or the environment they consider appropriate;
domestic production or consumption.
§ Member may also rely, in good faith, on divergent scientific
source, but qualified and respected.
Dr. Dao Gia Phuc Dr. Dao Gia Phuc
Specific exceptions under Article XX: Specific exceptions under Article XX:
Article XX(g) Article XX(g)
• ‘Exhaustible’ natural resources and ‘renewable’ • Distinguish ‘relate to’ in Art. XX(g) and ‘necessary’ in Art.
XX(b) ?
natural resources are not mutual exclusive.
(US – Shrimp (1998)) • Require a close and real relationship between the measure
and the policy’s objective.
(US – Shrimp (1998))