Gateways to the Precautionary Principle in WTO Law

Cheyne, Ilona

doi:10.1093/jel/eql036

Cited by 22 publications

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“…• where there is sufficient scientific evidence, Members may choose their level of protection, provided that, in accordance with Article 5.1, an RA has been carried out -the measure must have a reasonable relationship with the RA; 20 and • where there is insufficient scientific evidence, Members can adopt provisional SPS measures in accordance with Article 5.7. Cheyne (2007).…”

Section: Vi4322 Lessons To Be Drawn From the Dsbs' Case Lawmentioning

confidence: 99%

Chapter VI.43: The precautionary principle in WTO law

Sadeleer¹

2018

Elgar Encyclopedia of Environmental Law

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The WTO dispute settlement bodies declined to rule on the status of the precautionary principle. However, with respect to the Sanitary and Phytosanitary Agreement (SPS), in several cases the Appellate Body has given implicit indications that a precautionary approach could underpin some SPS obligations. Whether the lessons to be drawn from this complex case law can be applied to genuine environmental issues remains to be seen. Keywords WTO law, sanitary and phytosanitary measures, precautionary principle, risk assessment, risk management, level of protection Contents VI.43.1 Introduction: background and context VI.43.2 The SPS Agreement VI.43.2.1 Dispute Settlement Bodies' case law VI.43.2.2 Lessons to be drawn from the DSBs' case law VI.43.3 The GATT Agreement VI.43.4 Conclusions VI.43.1 Introduction: background and context Before 1991, the environment-trade debate was primarily an arcane speciality that attracted little attention within the legal community. In endeavouring to encourage 'the full use of the resources of the world', 1 the GATT 1947 system paid very little attention indeed to environmental concerns; consequently, trade policy and environmental policy evolved along separate paths for several decades. Despite the change of tone in 1994 in the wording of the WTO's aims-'an optimal use of the world's resources in accordance with the objective of sustainable development' 2-the fun-1 Preamble to the 1947 General Agreement on Tariffs and Trade (GATT) 55 UNTS 194. 2 Preamble to the 1994 Agreement Establishing the World Trade Organization (WTO Agreement), 1867 UNTS 154. As noted by the WTO Appellate Body, this change in orientation must 'add colour, texture and shading to the interpretation of the agreements annexed to the WTO Agreement' (Shrimp, para. 153). The Doha WTO Ministerial Declaration of 14 November 2001 strongly reaffirms the commitment to the objective of sustainable development, as stated in the Preamble to the Marrakesh Agreement: 'We are convinced that the aims of upholding and safeguarding an open and non-discriminatory multilateral trading system, and acting for the protection of the environment and the promotion of sustainable development can and must be mutually supportive.. .. We recognize that under WTO rules no country should be prevented from taking measures for the protection of human, animal or plant life or health, or of the environ-M4518-KRAMER (EE10 Ency_9781785365652_t.indd 599 09/05/2018 12:01

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Section: Vi4322 Lessons To Be Drawn From the Dsbs' Case Lawmentioning

confidence: 99%

Chapter VI.43: The precautionary principle in WTO law

Sadeleer¹

2018

Elgar Encyclopedia of Environmental Law

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“…Commentators have been divided on the question of how far the WTO Agreement permits or accommodates the application of the precautionary principle [78][79][80][81] . Even in the absence of an explicit provision, the precautionary principle is incorporated into the WTO agreements through gateway provisions [82] and it can further be introduced through such provisions [83][84][85][86][87][88] . In addition, Article 31(3) (c) of the Vienna Convention of the Law of Treaties [89] provides that although treaty provisions usually override other rules of international law, general principles of international law will still apply unless specifically excluded by the treaty provision [90] .…”

Section: Multilateral Environmental Agreement and The Precautionary Pmentioning

confidence: 99%

“…First, an SPS measure must be 'based on' a risk assessment, but this requires no more than a 'certain objective relationship' between them [34] . Second, risk assessment is 'a process characterized by systematic, disciplined and objective enquiry and analysis' which must be specific to the facts of the case and examines risk as it applies to 'the real world where people live and work and die [82] '. Third, the risk must be more than theoretical, but an attempt by the Panel in EC--Hormones to suggest that there was a quantifiable threshold of risk was rejected by the Appellate Body [34,93] .…”

Section: The Agreement On Sanitary and Phytosanitary Standardsmentioning

confidence: 99%

“…Article XX (b) has neither the detail nor the structure of the SPS. It merely provides that measures which otherwise violate the GATT may be valid if they are 'necessary to protect human, animal or plant life or health [82] '. The language of paragraph (b) suggests a rather high burden of proof and therefore a difficult hurdle for any Member to overcome if it wishes to rely on the precautionary principle.…”

Section: General Agreement On Trade and Tariffs 1994mentioning

confidence: 99%

“…It is unclear whether the term 'exhaustible natural resources' was intended only to refer to non-renewable resources such as minerals or whether it could include animal and other species. In practice, the phrase has always been interpreted liberally to include, for example, non-endangered dolphins [82,94] , clean air [31] and renewable resources [33] . Second aspect of Article XX (g) is the condition of 'relating to' conservation and it has been interpreted to provide the that Members have discretion to introduce measures that have a general rather than a very specific conservation objective due to the lack of a strong causality test.…”

Section: General Agreement On Trade and Tariffs 1994mentioning

confidence: 99%

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Trade and Precaution: Their Progressive Interlace

Singh¹

2009

American Journal of Economics and Business Administration

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Problem statement: The principle of precaution has developed in International Law, as it has been present in either explicit or implicit forms in most of the celebrated international treaties dealing with the protection of the environment, over the past two decades. In spite of the huge recognition that this principle has got through incorporation, in the international order, this principle continues to be the greatest puzzle in International law for being vague, ambiguous and imprecise as well as its status in relation to being a principle of customary International Law. Conclusion/Recommendation: Elements of precaution have been incorporated into the WTO Agreements (SPS and TBT) and for the examination of the relationship between the two can only be analyzed by determining the basis upon which these measures are put in place in the agreements. WTO aims at progressive liberalization of trade and greater freedom to take risks, while precaution is an opposite attitude in decision making that reflects an aversion to risk in the face of uncertainty. The trade rules of the WTO permit countries to invoke precautionary measures especially on the basis of health or environment while justifying trade restrictions, but they face real challenges when defending a precautionary action before the WTO Dispute Settlement Body. The relationship between Multilateral Environmental Agreements (MEA) and the WTO is undergoing a change from being theoretical to a tenuous one due to the new trade trends and its upshot on the environment. This paper looks to find the middle path needed for further trade progression while minimizing the effects on the environment. And answer some questions like, when an invocation of the precautionary principle is trade protectionism in disguise, who should bear the burden of proof when there is disagreement between parties and the effect of new trade regulations on the developing countries

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Temporariness and Change in Global Governance

Urueña

2015

Netherlands Yearbook of International Law

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Gateways to the Precautionary Principle in WTO Law

Cited by 22 publications

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Chapter VI.43: The precautionary principle in WTO law

Chapter VI.43: The precautionary principle in WTO law

Trade and Precaution: Their Progressive Interlace

Temporariness and Change in Global Governance

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