Environmental disputes in GATT/WTO
Under the GATT (1948–94), six panel proceedings involving an examination of environmental measures or human health-related measures under GATT Article 20 (i.e. XX) were completed. Of the six reports, three were not adopted. In 1995, the WTO’s dispute settlement procedure took over from GATT. Since then, three such proceedings have been completed.
Under the WTO
> European Communities — Measures affecting asbestos and asbestos-containing products. WTO case No. 135. Ruling adopted on 5 April 2001. Case brought by Canada.
The
Panel and the Appellate Body in this case both rejected Canada's
challenge to France import ban on asbestos and asbestos-containing
products, reinforcing the view that the WTO Agreements support
members' ability to protect human health and safety at the level of
protection they deem appropriate.
> United
States — Import Prohibition of Certain Shrimp and
Shrimp Products,
the “shrimp-turtle” case. WTO case Nos. 58
and 61. Ruling adopted on 6 November 1998. Case brought by India,
Malaysia, Pakistan and Thailand.
Recourse to Article 21.5 of the DSU. Ruling adopted on 21 November 2001. Case brought by Malaysia.
Many have missed the importance of the Appellate Body’s ruling on this case. It recognized that under WTO rules governments have every right to protect human, animal or plant life and health and to take measures to conserve exhaustible resources. The WTO does not have to “allow” them this right. Initially, the US lost the case because it applied its import measures in a discriminatory manner; it then revised its measures to introduce flexibilities in favour of developing countries. The Appellate Body subsequently concluded that the US ban was consistent with WTO rules. The ruling also said WTO panels may accept “amicus briefs” (friends of the court submissions) from NGOs or other interested parties.
> United States — Standards for Reformulated and Conventional Gasoline, WTO case Nos. 2 and 4. Ruling adopted on 20 May 1996. Case brought by Venezuela and Brazil.
The case affirmed that the US had every right to adopt the highest possible standard to protect its air quality so long as it did not discriminate against foreign imports. The US lost the case because it discriminated — its requirement on domestic producers was less stringent than that imposed on imported gasoline (in this case from Venezuela and Brazil).
Under GATT
(Adopted, pre-WTO, GATT panel reports can be downloaded here)
> United
States — Taxes on Automobiles,
ruling not adopted, circulated on
11 October 1994. Case brought by EU.
> United
States — Restrictions on Imports of Tuna,
“son of tuna-dolphin”, ruling not adopted,
circulated on 16 June 1994. Case brought by EU.
> United
States — Restrictions on Imports of Tuna,
the “tuna-dolphin” case, ruling not adopted,
circulated on 3 September 1991. Case brought by Mexico,
etc.
> Thailand
— Restrictions on the Importation of and Internal
Taxes on Cigarettes,
ruling adopted on 7 November 1990. Case brought by US.
> Canada
— Measures Affecting Exports of Unprocessed Herring
and Salmon,
ruling adopted on 22 March 1988. Case brought by US.
> United States — Prohibition of Imports of Tuna and Tuna Products from Canada, ruling adopted on 22 February 1982. Case brought by Canada.