10 Overview Trade and Environment - Dean Marvic M.v.F. Leonen

8/9/2019 10 Overview Trade and Environment - Dean Marvic M.v.F. Leonen

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Trade and Environment:

Precautionary Principles, RegulatoryDiversity, SPS Treaty of the WTO

Marvic M.V.F. Leonen

Dean and Professor of Law, UP

[email protected]


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Trade Regulation

July 29, [email protected]

Overview of the WTO Basic Disciplines

Tariffication and Bindings

Non Discrimination

MFN National Treatment

Regular Negotiations

Contingency Measures

Exceptions


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Elements


Perception of harm Seriousness

Likelihood (probability)

Understanding of the certainty of the perceived harm

and the taking of a regulatory response Taking of a regulatory response

Provisional character of the regulatory measure


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Concept of Risk


probabilistic likelihood of an unplanned,undesired or unwanted event actually

happening.

Risk assessment

Risk communication Risk management


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Application of the Measures


For domestic purposes, no international tradesurveillance

Levels of protection and the regulatory response are

mainly political decisions

Regulatory space is at its maximum Principle does not suggest any kind of measure or level of

protection


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WTO and Environmental Measures


US--Shrimp/Turtle Case Exceptions in article XX to article XI of the GATT

Exhaustible natural resource

But Chapeau, unjustified discrimination and disguisedrestriction to trade

Relationship of farming to turtles not questioned

EC-Asbestos Case Discrimination under article III paragraph 4, GATT

Environmental consequence part of physical characteristics

Carcinogenic potential of asbestos not questioned


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SPS Treaty


Sanitary and Phytosanitary Measures Object and purpose, prevent abuse

Unjustified or arbitrary discrimination

Disguised restriction to trade

Not to reduce discretion of member state to addressperceived harms

Specifies and complements article XX of the GATT


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Sanitary and Phytosanitary Measures


(a) to protect animal or plant life or health within the territory of the

Member from risks arising from the entry, establishment or spread ofpests, diseases, disease-carrying organisms or disease-causing

organisms;

(b) to protect human or animal life or health within the territory of

the Member from risks arising from additives, contaminants, toxins

or disease causing organisms in foods, beverages or feedstuffs; (c) to protect human life or health within the territory of the Member

from risks arising from disease carried by animals, plants or

products thereof, or from the entry, establishment or spread of pests;

or

(d) to prevent or limit other damage within the territory of theMember from the entry, establishment or spread of pests.


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Approaches


1. All measures established or maintained must havesufficient scientific justification.

2. No unjustified discrimination resulting in disguised

restriction to trade.

3. Least trade restrictive 4. Transparency of measures


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Distinctions


Australia-Salmon Case Level of protection (must now be clear)

Measures taken

Scientific Justification


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Scientific Justification


Option One: based on or conforming to measuresrecommended by international organizations (goal of

harmonization)

Option Two: measures resulting in a higher level of

protection but with scientific justification

Article 5 informs article 2

Concept of Risk Assessment


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Risk Assessment


Risk Assessment- The evaluation of the likelihood of

entry, establishment or spread of a pest or disease

within the territory of an importing Member according to

the sanitary or phytosanitary measures which might be

applied, and of the associated potential biological and

economic consequences; or the evaluation of the potential for adverse effects on

human or animal health arising from the presence of

additives, contaminants, toxins or disease-causing

organisms in food, beverages or feedstuffs.


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Elements


Identify the harm Establish the likelihood of the harm

Establish the likelihood of the harm in relation to the

specific measures to be undertaken


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Meaning of based on risk assessment


Objective relationship between the measure and thescientific study


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Precautionary Principle


No position on its status under international law Does not override the text of the SPS Treaty


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Article 5.7


In cases where relevant scientific evidence isinsufficient, a Member may provisionally adoptsanitary or phytosanitary measures on the basis ofavailable pertinent information, including that fromthe relevant international organization as well as fromsanitary or phytosanitary measures applied by other

Members. In such circumstances, Members shallseek to obtain the additional information necessaryfor a more objective assessment of risk and review thesanitary or phytosanitary measure accordingly withina reasonable period of time.


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Elements,


Japan--Apples; Japan--Agricultural Products II relevant scientific information is insufficient

Unresolved uncertainty v new uncertainty

Adopted on the basis of available pertinent

information Seeks additional information necessary for a more

objective assessment of the risk

Within a reasonable period of time


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Standard of Review


Neither de novo nor deferential But (as per article 11, dsu), objective assessment

By

Panel itself

Through individual experts Through expert working group


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CONCLUSIONS


Particularization of the precautionary principle

Environment is a legitimate area under trade law

Sense of including ecological norms in regional tradenegotiations

Possible areas for regional cooperation

Scientific information Research and development

10 Overview Trade and Environment - Dean Marvic M.v.F. Leonen

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