International Jurisprudence on Trade and Environmental Health: One Step Forward, Two Steps Back?

References and Notes

• Committee on Trade and Environment. Report of the Commit-tee on Trade and Environment. WT/CTE/ 1. Geneva: World Trade Organization, 1996.
   Google Scholar
• WTO. Ministerial Declaration. WT/1\ (01) /DEC/1. Doha:World Trade Organization, 2001.
   Google Scholar
• Shaw S, Schwartz R. Trade and Environment in the WTO: state of play. Journal of World Trade. 2002; 36 (1): 129–154.
   Web of Science ®Google Scholar
• Eckersley R. The Big Chill: the WTO and Multilateral Environ-mental Agreements. Global Environmental Politics 2004;4 (2): 24–50.
   Google Scholar
• As of 1st August 2008, the WTO had 153 Member States.
   Google Scholar
• WTO. General Agreement on Tariffs and Trade. 1994.
   Google Scholar
• WTO. Agreement on the Application of Sanitary and Phytosan-itary Measures. 1994.
   Google Scholar
• WTO. Understanding on Rules and Procedures Governing the Settlement of Disputes. 1994.
   Google Scholar
• While GATT Article XX(b) explicitly refers to health, WTO Agreements do not contain clauses that specifically address environmental concerns. However, the reference in GATT XX(b) to “animal or plant life or health” can and has been interpreted to include certain environmental issues. In addi-tion, paragraphs (d) and (g) of GATT Article XX are regularly referred to in so-called ‘environmental disputes’. For more details, see for example: Committee on Trade and Environ-ment. GATT/WTO dispute settlement practice relating to GATT Article XX, paragraphs (b), (d) and (g). WT/CTE/W/ 203. Geneva: World Trade Organization, 2002. In the cases dis-cussed in this article-which relate to environmental health, rather than the protection of the environment per se-only paragraph (b) of GATT Article XX has been invoked and addressed in earnest.
   Google Scholar
• WTO. European Communities-Measures Affecting Asbestos and Asbestos Containing Products. Report of the Panel. WT/DS135/R. Geneva: World Trade Organization, 2000.
   Google Scholar
• WTO. European Communities-Measures Affecting Asbestos and Asbestos Containing Products. Report of the Appellate Body. WT/DS135/AB/R. Geneva: World Trade Organization, 2001.
   Google Scholar
• Kazan-Allen L. Asbestos poisons World Trade Organization atmosphere. Int J Health Serv. 2001;31 (3): 481–493.
   PubMed Web of Science ®Google Scholar
• Castleman B. WTO confidential: the case of asbestos. Int J Health Serv. 2002;32(3) :489–501.
   PubMed Web of Science ®Google Scholar
• UNCTAD. Handbook of World Mineral Trade Statistics 1996-2001. 7th issue. UNCTAD/DITC/COM/2004/2. Geneva: United Nations Conference on Trade and Development, 2004.
   Google Scholar
• US Geological Survey Minerals Yearbook: 2006. US Department of the Interior, 2007.
   Google Scholar
• Zia-Zarifi S. The vital issues in the WTO asbestos dispute. Newsletter of the European Trade Union Technical Bureau for Health and Safety. 2000; 13: 3–5. Available: http://hesa.etui-rehs. org/uk/dossiers/files/2000-13p3-5.pdf [accessed 16 May 2008]
   Google Scholar
• Brophy JT, Keith MM, Schieman J. Canada's asbestos legacy at home and abroad. Int J Occup Environ Health. 2007; 13: 236–247.
   PubMed Web of Science ®Google Scholar
• Carruth RS, Goldstein BD. The asbestos case: a comment on the appointment and use of nonpartisan experts in World Trade Organization dispute settlement resolution involving health risk. Risk Anal. 2004; 24 (2): 471–481.
   PubMed Web of Science ®Google Scholar
• Carlarne C. From the USA with love: sharing home-grown hor-mones, GM0s, and clones with a reluctant Europe. Environ-mental Law. 2007; 37 (2): 301–227.
   Google Scholar
• WTO. European Communities-Measures Affecting the Approval and Marketing of Biotech Products. Reports of the Panel. WT/DS291/R, WT/DS292/R, WT/DS293/R. Geneva: World Trade Organization, 2006.
   Google Scholar
• Correa CM. Implementing national public health policies in the framework of WTO Agreements. Journal of World Trade. 2000; 43 (5) :89–121.
   Google Scholar
• Palmer A. The WTO GMQ Dispute: Implications for Develop-ing Countries and the Need for an Appeal. GeneWatch UK, RSPB, Forum for Biotechnology and Food Security and the GM Freeze. November 2006. Available: http://www.genewatch.org/ sub-405264 [accessed 9 December 2007].
   Google Scholar
• Baumuller H, Apea Y. A preliminary analysis of the WTO biotech ruling. Bridges. 2006; 10 (7): 13–14.
   Google Scholar
• The USA has signed but not ratified the Convention on Biolog-ical Diversity. Meanwhile, Argentina and Canada have signed but not ratified the Biosafety Protocol, while the USA has nei-ther signed nor ratified it.
   Google Scholar
• WTO. United States-Import Prohibition of Shrimp and Shrimp Products. Report of the Appellate Body. WT/DS58/ AB/R. Geneva: World Trade Organization, 1998.
   Google Scholar
• Minder R, Alden E. EU shrugs off modified foods censure. Financial Times, 8 February 2006.
   Google Scholar
• Anonymous. USTR seeks industry input on possible challenge in biotech dispute. Inside US Trade, 19 February 2002.
   Google Scholar
• Friends of the Earth International. Looking behind the US spin: WTO ruling does not prevent countries from restricting or ban-ning GMOs. Briefing paper, February 2006.
   Google Scholar
• WTO, E C measures concerning meat and meat products (hor-mones). Complaint by the United States. Report of the Panel. WT/DS26/R/USA. Geneva: World Trade Organization, 1997.
   Google Scholar
• WTO. EC measures concerning meat and meat products (hor-mones). Report of the Appellate Body. WT/DS26/AB/R. Geneva: World Trade Organization, 1998.
   Google Scholar
• European Commission. Measures concerning meat and meat products (hormones). 13 March 1998. Available: http://trade.ec. europa.eu/doclib/docs/2003/november/tradoc_114726.pdf
   Google Scholar
• European Commission. The “hormone” case: background and history. 24 May 2000. Available: http://trade.ec.europa.eu/ doclib/docs/2003/november/tradoc_114730.pdf
   Google Scholar
• George S. Unfree trade. Le Monde Diplomatique, May 2002. http://mondediplo.com/2002/05/l2trade
   Google Scholar
• Miller S, Kilman S. EU loses a round on biotech crops. Wall Street Journal, 9 February 2006.
   Google Scholar
• Hileman B. Clashes over AGBiotech. Chemical & Engineering News. 2003; 82 (23): 25–33.
   Web of Science ®Google Scholar
• Pollack A. WTO backs US in biotech dispute. International Herald Tribune, 8 February 2006.
   Google Scholar
• Walker S, Waddington R. WTO condemns EU over GMO mora-torium. Reuters News Service, 8 February 2006.
   Google Scholar
• Vidal J. America's masterplan is to force GM food on the world. The Guardian, 13 February 2006.
   Google Scholar
• For an indication that this was probably (one of) the objec-tive(s) of the WTO challenge from the outset, see statement of Gary Joachim to the Committee on Agriculture of the US House of Representatives, dated 26 March 2003. Available: http:/ /www.amsoy. org/newsroom/releases/2003% 20releases/j oachim032601.htm [accessed 16/05/08]
   Google Scholar
• European Commission. WTO dispute Brazil-measures affect-ing imports of retreaded tyres. Factsheet. 23 April 2007. Avail-able: h ttp : / /trade . e c.europa.eu/doclib/docs/2007/april/ tradoc_134556.pdf [accessed 01 December 2007]
   Google Scholar
• WTO. Brazil-Measures Affecting Imports of Retreaded Tyres. Request for Consultations by the European Communities. WT/D5332/1. Geneva: World Trade Organization, 2005.
   Google Scholar
• WTO. Brazil-Measures Affecting Imports of Retreaded Tyres. Report of the Panel. WT/DS332/R. Geneva: World Trade Orga-nization, 2007.
   Google Scholar
• WTO. Trade in Used and Retreaded Tyres. Submission by Brazil. WT/CTE/W/241. Geneva: World Trade Organization, Committee on Trade and Environment. 12 July 2005.
   Google Scholar
• ICTSD. Brazil calls WTO ruling in retreaded tyre dispute ‘favor-able’. Geneva: International Centre for Trade and Sustainable Development, Bridges Trade BioRes. 2007;7(9).
   Google Scholar
• ICTSD. EU appeals WTO ruling in retreaded tyre dispute with Brazil; NGOs protest. Geneve: International Centre for Trade and Sustainable Development. Bridges Trade BioRes. 2007; 7 (15).
   Google Scholar
• European Commission. EU to appeal points of reasoning in Brazil retreaded tyre ban WTO case. 3 September 2007. Avail-able: http://trade.ec.europa.eu/doclib/docs/2007/september/ tradoc_135792.pdf [accessed 01 December 2007]
   Google Scholar
• EC. Brazil-Measures Affecting Imports of Retreaded Tyres. Appellant's submission by the European Communities. Brus-sels: European Communities, 2007.
   Google Scholar
• WTO. Brazil-Measures Affecting Imports of Retreaded Tyres. Report of the Appellate Body. WT/DS332/AB/R. Geneva: World Trade Organization, 2007.
   Google Scholar
• Chaytor B, Cameroni The treatment of environmental consid-erations in the World Trade Organization. In: Yearbook of Inter-national Co-operation on Environment and Development 1999/2000 (Bergesen HO, Parmann G, Thommessen OB, eds.). London: Earthscan Publications, 1999: 55-64.
   Google Scholar
• Traub JZ. Environment, human rights & international trade. Hastings West-Northwest Journal of Environmental Law and Policy. 2002; 8: 269–275.
   Google Scholar
• The key issue in the so-called Thai cigarette dispute was whether a Thai ban on the import of cigarettes was justified, even though the sale of locally produced cigarettes was allowed. Thailand tried to justify its ban, among others, on health grounds, argu-ing that (lighter) foreign cigarettes could induce certain popu-lation segments to smoke-notably women and adolescents, who were less inclined to smoke locally produced cigarettes. Thus, it was argued that the ban contributed to containing the number of smokers, and was justified under GAIT Article XX(b).
   Google Scholar
• Charnovitz S. Exploring the environmental exceptions in GATT Article XX. Journal of World Trade 1991;25 (5): 37-55. Available: http://www.geocities.com/charnovitz/JWT.htm [accessed 27 August 2007]
   Google Scholar
• This change is in line with earlier, comparable changes regard-ing the interpretation of “necessary” in the context of other paragraphs of GATT Article XX, such as XX(d). See reference 55. See also WTO. Korea-Measures affecting imports of fresh, chilled and frozen beef. Report of the Appellate Body. WT/DS161/AB/R, WT/DS169/AB/R. Geneva: World Trade Organization, 2000.
   Google Scholar
• For a brief discussion of the implications of defining the ‘chosen level’ in this manner, see: Hannes Schloemann. Brazil Tyres: policy space confirmed under GATT XX. Geneve: Inter-national Centre for Trade and Sustainable Development. Bridges Trade BioRes 2008;8(3).
   Google Scholar
• WTO. United States-Standards for Reformulated and Conven-tional Gasoline. Report of the Appellate Body. WT/DS2/AB/R. Geneva: World Trade Organization, 1996.
   Google Scholar
• The costs of participating in a WTO dispute are relatively high for developing countries (especially small developing countries and least-developed countries), due to their lack of capacity (financial as well as otherwise) to bear the direct costs of a dis-pute, the relatively limited opportunities for retaliation, and the risk of a political or economic backlash. See Hoekman BM, Mavroidis PC. WTO dispute settlement, transparency and sur-veillance. The World Economy 2000;23 (4): 527-542; Shaffer G. The challenges of WTO law: strategies for developing country adaptation. World Trade Review, 2006:5: 177-198 and Alavi A. African countries and the WTO's dispute settlement mecha-nism. Development Policy Review. 2007;25 (1): 25-42.
   Google Scholar
• Knox JH. The judicial resolution of conflicts between trade and the environment. Harvard Environmental Law Review. 2004; 28: 1–78.
   Web of Science ®Google Scholar
• Palmer A, Tarasofsky R. The Doha Round and Beyond: Towards a Lasting Relationship between the WTO and the International Environmental Regime. London: Chatham House and Founda-tion for International Environmental Law, 2007.
   Google Scholar
• WTO. Declaration on the TRIPS Agreement and Public Health. WT/MIN(01)/DEC/W/2. Doha: WTO Ministerial Conference, 2001.
   Google Scholar
• Strictly speaking, decisions of Panels and the Appellate Body do not set precedents for subsequent rulings. However, in practice Panels and the Appellate Body do refer to, and rely on, the reports and reasoning of earlier cases.
   Google Scholar