chapter  2
72 Pages

General Exceptions Clauses

The trade and environment debate centres in large part on the question of whether or not the World Trade Organization (WTO) framework provides sufficient policy space for governments to protect the environment and human health. Specifically, the debate focuses on whether or not the use of trade-related measures to protect the environment and human health are permissible under the WTO framework. Environmentalists first began to focus on the international trading regime in the early 1990s after a General Agreement on Tariffs and Trade (GATT) panel ruled that a US import ban on tuna caught in a manner harmful to dolphins was illegal under GATT rules. The US – Tuna/ Dolphin I ruling was never adopted. A second US – Tuna/Dolphin II panel reaffirmed the earlier panel’s approach and also found that the US import ban violated GATT rules (although based on different reasoning). Despite the fact that this panel report (like the earlier one) was not adopted, the reports raised much concern with respect to the unbalanced approach taken by the GATT panels. Specifically, the panels rejected the application of the general exceptions clause in Article XX of the GATT, which allows measures to protect human, animal or plant life or health and to conserve natural resources. The panel’s conclusion was largely based on the view that measures adopted to protect the environment would threaten the multilateral framework on trade in goods. This approach came as a surprise to many who had thus far perceived Article XX of the GATT as providing the necessary balance between domestic regulatory autonomy in the environment field and the trade liberalization disciplines set forth by the GATT, including, inter alia, national treatment, most-favoured nation treatment and the prohibition on quantitative restrictions. One scholar described the situation as follows:

Before the Tuna/Dolphin rulings, the prevailing view was that Article XX of the GATT decided any conflicts between free-trade rules and environmental norms in favor of the latter. The Tuna/Dolphin panels tried to switch the preference in favor of the latter. Worse still, they approached the question solely from the perspective of effects on liberalized trade. Traditionally, the GATT demonstrated respect for regulatory diversity and progressive government. But after Tuna/Dolphin, environmentalists – and others with concerns about how the trading system balances competing values – saw the GATT as a regime dedicated to the triumph of free trade over all other human concerns. (Howse 2002, footnotes omitted.)

The balance or imbalance between trade and environmental consideration has depended, and still depends, in large part on the interpretation of Article XX of the GATT. Environmentalists and many scholars generally welcomed the more recent Appellate Body jurisprudence on Article XX (particularly in US – Shrimp/Turtle I and 21.5), which explicitly distanced itself from the unbalanced approach applied in the two US –Tuna/Dolphin reports.