Can (Should) Article xx(b) GATT Be a Defense against Inconsistencies with the SPS and TBT Agreements?

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1 Can (Should) Article xx(b) GATT Be a Defense against Inconsistencies with the SPS and TBT Agreements? Senai W. ANDEMARIAM* I. ARTICLE xx(b) AND THE SPS AGREEMENT A. GENERAL OVERVIEW OF EXCEPTIONS TO GATT The General Agreement on Tariffs and Trade (GATT) was designed to fornulate general principles that would govern the complex and highly politicized subject of international trade law.' An infant agreement as it was, the GATT had to balance the myriad obligations it demands with the sovereign independence of nations to structure their international trade relations under conditions that suit their individual wishes and realities. To this end, the GATT was "riddled with exceptions" that relax the obligations of GATT Members in a number of situations.2 2 Of relevance to the subject of this article is Article xx of GATT, which Professor Jackson puts in the third category of Universal Exceptions. A relatively fewer number of disputes have arisen in the GATT/WTO years wherein issues of Article XX have arisen. Nevertheless, the World Trade Organization has developed a three-step interpretation of the application of an Article xx defense: first, determining whether the measure in dispute is in the scope of the policy or national interest represented in the relevant paragraph (for example, protection of human, animal or plant life or health in paragraph b, or conservation of exhaustible natural resources in paragraph g); * Professor of Law, University of Asmara, Eritrea; former Judge, Ministry of Justice, State of Eritrea. He may be contacted at: wsenai2001@yahoo.com or senai@webmail.uoa.edu.er.. 1 John H. Jackson, WORLD TRADE AND THE LAW OF GATT, 53-58, 536, (1969). Professor Jackson divides these exceptions into two major groups: Universal Exceptions, which apply to all GATT obligations; and Particular Exceptions, which apply to specific GATT obligations. He further divides the Universal Exceptions into: - those that require prior, specific approval of the GATT CONTRACTING PARTIES (now the World Trade Organization Members), including waivers, releases under Article XVIII GATT, para. 13, deviations authorized in cases of nullification-impairment incidents in Article Kxiii and exceptions authorized during the process of accession according to Article XXXII; - those that require prior notice to the GATT CONTRACTING PARTIES (now the WTO Members) but not necessarily approval, including formation of customs unions or free trade areas under Article XXIV GATT, the non-application of GATT between two CONTRACTING PARTIES (now Members) under Article XXXV either when they do not have tariff concessions between them or when one of them opts out during the accession of the other and the escape clause in Article XIX; and - those that do not require notification, including those found in Article xx (General Exceptions), Article xxi (Security Exceptions) and "frontier traffic" facilitation advantages accorded between and among adjacent countries under Article XXIV, para Id. at 535.

2 second, determining whether the measure is within the scope of the degree of proximity that it must have with the interest (policy) sought to be protected in light of the words "necessary" and "relating to"; and third, determining whether the elements of the introductory paragraph of Article XX (called the chapeau) are met.3 Of the ten paragraphs contained in Article XX, three (b, d, and g) have been repeatedly used in GATT/WTo disputes (See Table 1). B. THE SCOPE OF ARTICLE xx(b) The drafting history of Article xx GATT shows that the provisions of this Article were not subjects of a deeper debated Of the paragraphs in Article xx, paragraph b seems to have attracted the attention of the drafters during the Geneva Session that started on 10 April Together with the chapeau to Article xx, paragraph b reads: "Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures: (a)... (b) necessary to protect human, animal or plant life or health." Not a lot of cases have been decided by the GATT/WTO dispute settlement organs nor is the drafting history clear enough to define the scope of paragraph b, i.e. whether it is limited only to sanitary and phytosanitary measures taken to protect human, animal or plant life or health or includes other measures necessary to achieve the protective purpose. The drafters were only overtly concerned with the possible abuse of paragraph b under the guise of protecting human, animal or plant life or health.6 3 United States-Restriction on Imports of Tuna (Tuna-Dolphin) (DS29/R), para. 5.12; United States-Section 337 of the Tari Act of 1930 (Section 337) (L/ S/345), para See also Thomas J. Shoenbaum, International Trade and Protection of the Environment: the Continuing Search for Reconciliation, 91 AM. INT'L L. 268, 276 (1997). ^ For a more detailed overview of the drafting history of Article xx, see the GATT drafting history as contained in: Report of the First Session of the Preparatory Committee of the United Nations Conference on Trade and Employment, E/PC/T/33, London, E/PC/T/30 ANNEXURE 13 (27 November 1946), London, E/PC/T/C.11/3/12 (n.d.), London E/PC/T/CII/12, 8 (26 October 1946), London E/PCIT IC.II/32, 11 (30 October 1946), London E/PC/T/C.11/35, 2 (30 October 1946), London E/PC/T/C.II/54, Rev.l, (30 October 1946); Report of the First Session of the Preparatory Committee of the United Nations Conference on Trade and Employment, E/PC/T/34, 1 (5 March 1947), E/PC/T/C.6/41, 3 (4 February 1947). 5 See Report of the First Session of the Preparatory Committee of the United Nations Conference on Trade and Employment, E/PC/T/A/PV/30 2, at 7, 8, 10, 11, and 13. For instance, during the New York Session ofthe drafting process, in order to curb such an abuse, inclusion in para. b of the phrase "where corresponding measures of protection are taken in the importing country" was proposed so that it would read: "necessary to protect human, animal or plant life or health where corresponding measures ofprotection are taken in the importing country"; E/PC/T/C.6/41, supra note 4, at 3 (4 February 1947). Similarly, during the Geneva Session, Mr Roux, the French Delegate, proposed that at the end of the paragraph the following phrase be added to achieve the purpose of curbing abuses: "When a country decides, in (footnote continued on page 522)

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4 Nevertheless, it is now a settled understanding that sanitary and phytosanitary measures were the principal measures that occupied the minds of the drafters,7 and the drafting history of the Agreement on the Application of Sanitary and Phytosanitary Measures (the Sps Agreement) would confirm this (see the next Section of this article). The Sps Agreement was basically established to "elaborate" the provisions of Article xx(b) (;ATT.1 The drafters of the Sps Agreement were careful in selecting the words of the relevant paragraph (paragraph 8) in the Preamble to the Sps Agreement that refers to Article xx (b): "Desiring therefore to elaborate rules for the application of the provisions of GATT 1994 which relate to the use of sanitary or phytosanitary measures, in particular the provisions of Article xx(b)..." By the terms of this paragraph, the drafters of the Sps Agreement meant, we can therefore infer, that: - the SPS Agreement was only meant to "elaborate" not to "give meaning" or "define" Article xx(b); - the phrase "... the provisions... which relate to the use of sanitary or phytosanitary measures, in particular the provisions of Article xx(b)..." means that the provisions of Article xx(b) are not confined to sanitary and phytosanitary measures as contained in the SPS Agreement, that they are only "related to" sanitary and phytosanitary measures; and - therefore, the scope of Article xx(b) can be extended beyond the SPS Agreement in the sphere of protection of human, animal or plant life or health. C. ARTICLE XX 7J AND THE Sps AGREEMENT 1. THE SPS AGREEMENT-AN OFFSHOOT OF ARTICLE xx(b) As world trade exponentially increased in all dimensions during the four decades that followed the establishment of GATT, it became clear that importing countries were becoming increasingly concerned about the impact of imported goods on their human, animal and/or plant life or health and, thus, had started to take measures against such imports. The only provisions that addressed this issue were those contained in Article xx(b), which provisions are "defensive", i.e. they can only be invoked to justify implementation of this provision, to restrict imports of certain goods, this country shall adopt internal measures of protection corresponding to those which it takes with regard to importations, if conditions analogous to those which have justified those measures of protection exist also on its own territory." Id., at 10. Both proposals were rejected during the respective sessions, and para. b retained its original draft, which was similar to the wording we now find in Article xx Gait. The concerns of the drafters of the New York and Geneva anti-abuse proposals seem, however, to have been rewarded when, 47 years later, during the establishment of the Agreement on the Application of Sanitary and Phytosanitary Measures (the Sns Agreement), the first paragraph of the Preamble to the Agreement read: "Reaffirming that no Member should be prevented from adopting or enforcing measures necessary to protect human, animal or plant life or health, subject to the requiremet1t that these measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between Members where the same conditions prevail or a disguised restriction on international trade..." (emphasis added). Bradly J. Condon, GAIT Article xx and Proximity of Itlterest: Deterniinifig the Subject Matter ofparqqraphs b andg, Instituto Tecnologico Autbnomo de Mexico (ITAnn)-Adrninistracion; Bond University-School of Law, (2004). 8 Preamble to the Agreement on the Application of Sanitary and Phytosanitary Measures (Sps Agreement), WTO Agreement, Annex 1A, para. 8.

5 a measure that is found to be inconsistent with any one of the GATT obligations, none among which fully govern the issue of protection of human, animal and/or plant life or health.9 It was the understanding of the world trade partners that sanitary and phytosanitary measures, crucial in international trade as they are, needed to be elevated to becoming "substantive" obligations that apply to all WTO Members instead of remaining under Article xx(b) as a "justifiable deviation" from GATT obligations. To that end, the second paragraph of the Preamble to the SPS Agreement, established for this purpose, was made to read: "DesirinQ to improve the human health, animal health and phytosanitary situation in all Members..." This was one of the reasons that necessitated the establishment of the SPS Agreement. Moreover, the grant of waivers to the agricultural sector, the lack of tariff bindings and the widespread use of some questionable non-tariff barriers urged the negotiators in the Uruguay Round of multilateral trade negotiations to conclude that an agreement should be made to monitor the use of sanitary or phytosanitary measures against imported goods.10 Thus, issues of sanitary and phytosanitary measures were finally expounded beyond the cloudy provisions of Article xx(b) GATT into a separate, substantive part of the WTO Agreement: the St s Agreement,. I I The SPS Agreement, which is part of Annex 1A to the W'ro Agreement, has 14 Articles and three annexes. The Preamble and some of the articles of the Sps Agreement clearly indicate the relationship between the Sps Agreement and Article xx GATT, paragraph b in particular. The Preamble starts with a paragraph similar to the chapeau of Article xx and afterwards makes an explicit reference to paragraph b: "Reaf/irming that no Member should be prevented from adopting or enforcing measures necessary to protect human, animal or plant life or health, subject to the requirement that these measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between Members where the same conditions prevail or a disguised restriction on international trade; Desiring to improve the human health, animal health and phytosanitary situation in all Members... 9 Kennedy states: "Before the Sps Agreement was added to the GATT-WTO legal partnership, Article xx(b) was the only GATT provision dealing expressly with the subject of Sps measures. Until the Sps Agreement, no multilateral trade agreement existed with a fully articulated set of procedural rules governing a country's use of Svs measures in connection with imported goods. The Spas Agreement fills this gap by circumscribing WTO members' use of such measures as a non-tariff barrier to trade." Kevin C. Kennedy, Resolving International Snrtitary and Phytosanitary Disputes in the W7'e : Lessons and Future Directions, 55 FOOD!)RU(.: L. 81, 83 (2000). 10 John H.Jackson, William J. Davey and Alan O. Sykes,jr., LEGAL PROBLEMS OF INTERNATIONAL ECONOMIC RELATIONS: CASES, MA'1'EI11ALS AND TEXT, 579 (4th ed. 2002). z A sanitary or phytosanitary measure is defined as a measure applied: (a) to protect animal or plant life or health within the territory of the Member from risks arising from the entry, establishment or spread of pests, 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 foodstuffs; (c) to protect human life or health within the territory of the Member from risks arising from diseases 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 the Member from the entry, establishment, or spread of pests. Annex A, Sps Agreement, para. 1.

6 Desiring the establishment of a multilateral framework of rules and disciplines to guide the development, adoption and enforcement of sanitary and phytosanitary measures in order to minimize their negative effects on trade... Desiring therefore to elaborate rules for the application of the provisions of GATT 1994 which relate to the use of sanitary or phytosanitary measures, in particular the provisions of Article c(b)..." (emphases added). The Preamble shows the desire of the drafters to build a whole set of obligations in the sensitive area of the application of sanitary and phytosanitary measures based on a multilateral obligation under the GATT system. The principal relationship and difference between the Sps Agreement and Article xx GATT is revealed in Article 2 of the Sps Agreement, which enumerates the "Basic Rights and Obligations" of all WTO Members: "1. Members have the right to take sanitary and phytosanitary measures necessary for the protection of human, animal or plant life or health, provided that such measures are not inconsistent urith the provisions of this Agreement. 2. Members shall ensure that any sanitary and phytosanitary measure is applied only to the extent necessary to protect human, animal or plant life or health, is based on scientific principles and is not maintained without sufficient scientific evidence, except as provided in paragraph 7 of Article Members shall ensure that their sanitary and phytosanitary measures do not arbitrarily or unjustifiably discriminate between Members where the same conditions prevail, including between their territory and that of other Members. Sanitary and phytosanitary measures shall not be applied in a manner which would constitute a disguised restriction on international trade. 4. Sanitary and phytosanitary measures which conform to the relevant provisions of this Agreement shall be presumed to be in accordance with the obligations of GATT 1994 which relate to the use of sanitary and phytosanitary measures, in particular the provisions of Article xx(b)." (emphases added). Article 3 of the SPS Agreement requires Members to harmonize their sanitary and phytosanitary measures with available international standards, guidelines and recommendations. Article 4 requires importing Members to recognize the sanitary and phytosanitary measures applied on imported products if the SPS Agreement measure of the importing Member on the same product is equivalent to that applicable in the exporting Member. Article 5, the core Article of the Sps Agreement, requires all Members to base their measures upon a scientific assessment of risk, taking a number of economic factors into consideration. Paragraph 5 of Article 5 reiterates a concept similar to that of the chapeau of Article xx GATT. Paragraph 7 of Article 5, dubbed the "Precautionary Principle", allows Members to apply their own measures when scientific evidence is insufficient. Article 7 requires Members to notify changes in their sanitary and phytosanitary measures; Article 11 subjects the Sps Agreement to the dispute settlement proceedings under Articles xxn and xxni of GATT, with an instruction to seek expert advice; Article 12 establishes the Sps Agreement Committee to administer

7 the Agreement. Although the Sps Agreement is an offshoot of Article xx(b) GATT, it is important to note the fundamental differences in the application of the two measures. 2. ARTICLE xx(b) vis-a-1,7s THE SPS AGREEMENT IN GENERAL Firstly, the Sps Agreement establishes a set of substantive obligations for all Members, unlike Article xx(b) GATT, which applies only to justify an inconsistency with any one of the respondent's GATT obligations. The SPS Agreement is not a defense for a GATT violation, and any violation of the Sps Agreement is argued and defended within the Sps Agreement itself; i.e. the obligations of the Sps Agreement "stand alone".12 For example, in the two similar cases European Communities-Measures Coruerning Meat and Meat Products (Hormones) (EC-Hormones (Canada) and EC-Hormones (TJ.S.)), Canada and the United States claimed that the EC's prohibition of the import of meat from Canada and the United States was not consistent with the SPS Agreement, and the EC defended its actions solely on the basis of the SPS Agreement. Therefore, whereas the invocation of measures taken to protect human, animal or plant life or health under the SPS Agreement is aimed at proving their compliance with the broad objectives of the Sps Agreement, invocation of these measures under Article xx(b) GATT is aimed at justifying an inconsistency, in their application, with any GATT obligation. Secondly, it is worth noting that Sps Agreement measures are more detailed than the provisions of Article xx(b) measures.i3 The Preamble to the SPS Agreement indicates that the Agreement was made to give meaning to Article xx(b). To quote Marceau and Trachtman: "The Sps Agreement should be understood, to some extent, as an expansion of Article xx of GATT."14 It is for this reason that Article 2(5) of the SPS Agreement states that an Sps Agreement measure is presumed to be an Article xx(b) measure. Therefore, a measure under the Sps Agreement is most likely a measure under Article xx(b), while a measure under Article xx(b) may not be a measure consistent with the SPS Agreement. That is why the SPS Agreement does not state that a measure taken under Article xx(b) is (or is presumed to be) part of its substantive obligations nor does Article xx GATT claim that a measure taken under paragraph b is presumed to be an SPS Agreement measure. The two differences discussed above were made an issue in the cases that discussed the Sps Agreement. In the EC-Hormones cases, the EC argued that the "substantive" 12 WTO ANALYTICAL index, (:U117E TO WTC) LAW AND PAACTICE (1st. ed. 2003). See Gabrielle Marceau and Joel P. Trachtman, The Technical Barriers to Trade Agreement, The Sanitary and Phytosanitary Measures Agreement, and the General Agreement on Tariffs and Trade: A Map oft1]e World Trade Orgaruzation Lath) of Domestic Regulation of Goods, 36J.W.T. 5 (2002). Thus, "[a] member's failure to satisfy Articles 2.2 and 2.3 would in itself constitute a violation of GATT, regardless of the measure's consistency with the remainder of GATT"; Kennedy, supra note 9, at The reader should not confuse this statement with a conclusion reached in the last part of this Section- Section C.4, "Article xx(b): An Exception to the Sps Agreement?"-that the scope of protection under Article XX(b) GATT is broader than that provided for in the Sps Agreement. 14 Marceau and Trachtman,.supra note 12, 823.

8 provisions of the SPS Agreement can only be addressed if recourse is made to Article xx(b) GATT, i.e. if, and only if, a violation of another GATT provision is first established. In other words, the EC argued that since the SPS Agreement was set up to elaborate Article xx(b) GATT, Sps Agreement measures can only be used as a defense in justifying a measure otherwise found to be inconsistent with the respondent's GATT obligations. The Panel, in a finding not addressed by the Appellate Body, rejected the argument by stating: "According to Article 1.1 of the SPS Agreement, two requirements need to be fulfilled for the SPS Agreement to apply: (i) the measure in dispute is a sanitary or phytosanitary measure; and (ii) the measure in dispute may, directly or indirectly, affect international trade. There are no additional requirements. The Sps Agreement contains, in particular, no explicit requirement of a prior violation of a provision of GATT which would govern the applicability of the Sps Agreement, as asserted by the European Communities." The Panel on EC-Hormones then added, with respect to the relationship between the Sps Agreement and Article xx(b) of GATT 1994, that: "Many provisions of the SPS Agreement impose 'substantive' obligations which go significantly beyond and are additional to the requirements for invocation of Article xx(b): [W]e find the EC claim that the Sps Agreement does not impose 'substantive' obligations additional to those already contained in Article xx(b) of GATT not to be persuasive. It is clear that some provisions of the SPS Agreement elaborate on provisions already contained in GATT, in particular Article xx(b). The final preambular paragraph of the Sps Agreement provides, indeed, that the Members desired to 'elaborate rules for the application of the provisions of GATT 1994 which relate to the use of sanitary or phytosanitary measures, in particular the provisions of Article xx(b)'. Examples of such rules are, arguably, some of the obligations contained in Article 2 of the Sps Agreement. However, on this basis alone we cannot conclude that the Sps Agreement applies, if and only if, a prior violation of a GATT obligation has been established. Many provisions of the Sps Agreement impose 'substantive' obligations which go significantly beyond and are additional to the requirements for the invocation of Article xx(b). These obligations are, inter alia, imposed to 'further the use of harmonized sanitary and phytosanitary measures between Members' and to 'improve the human health, animal health and phytosanitary situation in all Members'. They are not imposed, as is the case of the obligations imposed by Article xx(b) of GATT, to justify a violation of another GATT obligation such as a violation of the non-discrimination obligations of Articles I or m." (emphasis added) ARTICLE xx(b) AND THE SPS AGREEMENT vis-a-vis OTHER GATT OBLIGATIONS As a result of the differences discussed above, the application of the SPS Agreement and Article xx(b) in view of other GATT obligations is different. Firstly, as discussed throughout this article, Article XX is a defense for an inconsistency with one of the GATT obligations; therefore, an analysis on the basis of Article xx(b) cannot be made before a finding on the GATT obligation allegedly 15 WTO ANALYTICAL o.rusx, supra note 12, , quoting EC-Horntones (Canada), Panel Report, para. 8.39, EC-Hormones (U.S.), Panel Report, para. 8.36; and EC-Hormones (Canada), Panel Report, para. 8.41, EC-Hormones (U.S.), Panel Report, para

9 violated is reached. If the adjudicators find that the GATT obligation was not violated, there is no need to make an Article xx analysis. For the Sps Agreement, however, consistency with other GATT obligations is not a concern, because the SPS Agreement is a substantive obligation in and ofitself. Unlike Article xx(b) GATT', an SPS Agreement measure need not be adjoined to a case discussing the consistency of a Member's measures with its GATT obligations (for example, with Articles I, III, xi, etc.). Thus, the SPS Agreement cannot be used as a measure justifying an inconsistency with GATT obligations. In other words, whereas SPS Agreement measures are used "positively" in the process of complying with a Member's SPS Agreement obligations (i.e. purely sanitary and phytosanitary measures are limited to the SPS Agreement only and are argued within the ambit of the Sps Agreement), Article xx(b) GATT is used "defensively" to justify a measure otherwise inconsistent with the Member's GATT obligations (i.e. Article xx(b) is always argued together with and after a given GATT obligation that is claimed to have been violated). This, however, does not mean that a sanitary and/or phytosanitary dispute may not be argued in line with other GATT Agreements or obligations, i.e. an SPS Agreement case may have links to other GATT obligations, and vice versa. This issue was rightly analyzed by the respective panels on the Hormones cases and the Australia-Salmon case. In the EC-Hormones cases (where both the Sps Agreement and GATT 1994 were implicated in the EC import prohibition), the Panel, in answering the question whether one analysis or two needed to be made, stated (the Appellate Body did not review the same) that: "The Sps Agreement specifically addresses the type of measure in dispute. If we were to examine GATT first, we would in any event need to revert to the Sps Agreement: if a violation were found, we would need to consider whether Article xx(b) could be invoked and would then necessarily need to examine the 51'S Agreement [an examination of the Sps is not, however, to seek justification qf the GATT violatiorlj; if, on the other hand, no GATT violation were found [examination of Article being unnecessary], we would still need to examine the consistency of the measure with the Sps Agreement since nowhere is consistency with GATT presumed to be consistency with the SPS Agreement. For these reasons, and in order to conduct our consideration of this dispute in the most efficient manner, we shall first examine the claims raised under the SPS Agreement." (emphasis added).'6 In the Australia-Salmon case, the Panel discussed a related question-in a case involving measures taken to protect human, animal or plant life or health (assuming the measures also touch upon other GATT obligations), which one of either the SPS Agreement or the relevant GATT obligation should be addressed first: "Canada recognizes that the Sps provides for obligations additional to those contained in GATT 1994, but, nevertheless, first addresses its claim under Article xi of GATT Australia invokes Article 2.4[I7J of the SPS Agreement, which presumes GATT consistency for measures found to be in conformity with the Sps Agreement, to first address the 16 Id., at 533, quoting EC-Honnones (Canada), Panel Report, para. 8.45, EC Hormones (US.). Panel Report, para This is a slip of the pen; the Panel obviously meant Article 2(5) of the Spas Agreement.

10 Sps Agreement. We note, moreover, that (1) the Sps Agreement specifically addresses the type of measure in dispute, and (2) we will in any case need to examine the Sps Agreement, whether or not we find a GATT violation (since GATT consistency is nowhere presumed to constitute consistency with the Sps Agreement). In order to conduct consideration of this dispute in the most efficient manner, we shall, therefore, first address the claims made by Canada under the Sps Agreement before addressing those put forward under GATT 1994."Ill Finding inconsistency of the EC and Australian measures with the Sps Agreement, the panels, exercising judicial economy, respectively concluded that there was no need to further examine the consistency of the measures with GATT Articles III or xi in the EC-Hormones cases or with GATT Article xi in the Australia-Salmon case.19 Secondly, it is important to discuss the concept of the "necessity" of the measures taken in accordance with the Sps Agreement and an Article xx(b) defense. In the SPS Agreement, the word "necessary" is used in Article 2(1), which states: "Members have the right to take sanitary and phytosanitary measures necessary for the protection of human, animal or plant life or health, provided that such measures are not inconsistent with the provisions of this Agreement" (emphases added). As the paragraph indicates, the necessity of an Sps Agreement measure is examined by its consistency with all the provisions of the SPS Agreement itself. A complementary jurisprudence has, however, developed in establishing what is necessary under the SPS Agreement. This line of interpretation tries to keep the meaning of the word "necessary" under the SPS Agreement very close to the corresponding meaning given to the same word under Article xx(b) GATT. Article 5.4 of the Sps Agreement states that when determining the appropriate level of sanitary or phytosanitary protection, Members have to take into account the objective of minimizing negative trade effects.20 Although the Appellate Body has held that the level of protection deemed by Members in establishing sanitary or phytosanitary measures is "a prerogative of the Member concerned",21 Article 5.6 of the Sps Agreement limits this prerogative by providing for the application of a "less restrictive to trade" standard.22 Note, however, that Article 5.6, through its footnote No. 3, unlike Article xx(b) GATT, does not require that the alternative measure be the "least-trade-restrictive" of all available measures but only requires that the Member apply a measure, if available, that 18 WTO ANALYTICAL INDEX, supra note 12, quoting Australia-Salmon, Panel Report, para " Id., quoting EC-Hormones (Canada), Panel Report, para , EC-Honnones (U.S.), Panel Report, para ; and Australia-Salmon, Panel Report, para '-" In light of the steps for defining the word "necessary" under Article xx(b) GATT, the phrase "minimizing negative trade effects", as it is used in this paragraph, looks similar to one of the variables introduced by the Appellate Body in applying a balancing test for defining the word "necessary" under Article xx, i.e. assessment of the impact that such a measure has on trade. See infra note 43. This analogy can be employed to conclude that the SPS Agreement works in line with the spirit of Article xx(b) GATT. 21 Australia-Measures Affecting Importation of Salmon, Report of the Appellate Body (WT/DS18/AB/R ( )), para "For purposes of paragraph 6 of Article 5, a measure is not more trade-restrictive than required unless there is another measure, reasonably available taking into account technical and economic feasibility, that achieves the appropriate level of sanitary or phytosanitary protection and is significantly less restrictive to trade." (emphasis added). Sps Agreement, Article 5.6, n.3.

11 is significantly less trade-restrictive than the measure in dispute.23 The next logical question then is, under the SPS Agreement, is it mandatory that a given measure comply with the requirements of both Articles 2(1) and 5(6) of the Agreement to be deemed "necessary"? In Article xx(b) GATT, however, the measure of necessity is the reasonable availability of "GATT-consistent" or "least GATT-inconsistent" alternative measures in light of a complex balancing test for a "means/end" analysis Thirdly, an intricate question may develop out of the relationship between Article xx(b) GATT and the Sps Agreement vis-a-vis other GATT obligations in issue. I have stated above that, in the cases quoted, an Sps Agreement case may involve other GATT obligations and that the analyses for the GATT obligation and the Sps Agreement are independent of each other. The panels stated that a finding on the GATT obligation does not affect the independent analysis of the SPS Agreement, and vice versa. It is possible that sanitary and phytosanitary measures, while being consistent with the Sps Agreement, could be held inconsistent with a given GATT obligation. This scenario, however, is not possible with Article xx(b). A measure consistent with the criteria of Article xx(b) cannot be otherwise consistent with the GATT obligation in issue because had the measure been consistent with the GATT obligation there would not have been an Article xx(b) defense at all. Now, assume that a given case discussed the consistency of a (predominantly sanitary and phytosanitary) measure in light of the SPS Agreement and a given GATT obligation (for example, GATT Article I, m or xi). It has been noted that the WTO (in the Australia-Salmon case) held that in issues concerning measures that are predominantly sanitary and phytosanitary, the Sps Agreement issue is addressed first.2s The question, then, is: can the SPS Agreement finding affect the applicability of Article xx(b) GATT in the defense of a violation, if any, of the GATT obligation in issue? I have already discussed that in such cases two separate findings need to be made: one for the Sps Agreement; and the other for the GATT obligation in issue.26 Based on 23 In the Australia-Salmon appeal, the Appellate Body, in the course of interpreting Article 5.6 of the Sps Agreement stated: "We agree with the Panel that Article 5.6 and, in particular, the footnote to this provision clearly provides a three-pronged test to establish a violation of Article 5.6. As already noted, the three elements of this test under Article 5.6 are that there is an Sps measure which: (1) is reasonably available taking into account technical and economic feasibility; (2) achieves the Member's appropriate level of sanitary or phytosanitary protection; and. (3) is significantly less restrictive to trade than the Spas measure contested. These three elements are cumulative in the sense that, to establish inconsistency with Article 5.6, all of them have to be met. If any of these elements is not fulfilled, the measure in dispute would be consistent with Article 5.6. Thus, if there is no alternative measure available, taking into account technical and economic feasibility, or if the alternative measure does not achieve the Member's appropriate level af sanitary or plrytosanitary protection, or if it is not significantly less trade restrictive, the rneasure in disputes would be consistent with Article 5.6." (emphasis added). Australia-Salmon, Report of the Appellate Body, supra note 21, para =s For a further discussion on the necessity requirement under Article xx(b), see infra notes 33 and See supra notes 15 and 16 and accompanying text. zb See supra note 15 and accompanying text.

12 the Anstralia-Salmon Panel's ruling, in which the Panel saw no need to further discuss the GATT obligation issue, an argument might be made that the Sps Agreement finding settles the case. However, the Panel, after a negative SPS Agreement finding, was simply exercising judicial economy because, in a predominantly sanitary/phytosanitary case, it saw no need to further discuss the case. The Panel did not state that a single Sps Agreement finding is what was required to rest the dispute,.27 Therefore, there are four possible findings in such a case (see Table 2). TABLE 2. HYPOTHETICAL SPS AGREEMENT-OTHER. GATT OBLIGATION FINDINGS Suurce: Author's original. Now, back to the question asked earlier: how can the Sps Agreement finding affect the applicability of Article xx(b) GATT in the defense of a violation, if any, of the GATT obligation in issue? In possibilities Nos. 1 and 2, there is no need to refer to Article xx(b) because the measure was held to be consistent with the GATT obligation in issue. Further discussion, however, is needed on possibilities Nos. 3 and 4. In possibility No. 3, the panel holds that the measure is consistent with the Sps Agreement but inconsistent with the other GATT obligation. Now, the question boils down to whether the positive SPS Agreement has any effect on the Article xx(b) defense which may be raised in response to the finding of violation of the other GATT obligation. Article 2(4) of the Sps Agreement states that measures conforming to the Sus Agreement shall be presumed to be particularly in accordance with the provisions of Article xx(b). Thus, the respondent can have the benefit of presumption in its Article xx(b) defense. In line with this analysis, it should be noted that the GATT and the W'ro have consistently held that the burden of proof in an Article xx(b) defense 27 See supra note 19. The author is, however, of the opinion that the Australia-Salmon Panel, in line with the mling of the Panel in the EC-HomlOlles cases (supra note 15) that the measure needs to be separately examined in light of the Sps Agreement and the other GATT obligation, should have addressed the second issue because the Sps Agreement and the other GATT obligation are independent of each other, and separate and independent adjustments should be made by the respondent to cure the respective inconsistencies.

13 is on the respondent.21 Thus, through the positive Sps Agreement finding, the respondent can pass muster and shift the burden of proof to the complaining party.29 In possibility No. 4, the Panel holds that the measure is inconsistent with both the SPS Agreement and the other GATT obligation. Now the question is whether the negative SPS Agreement finding has any effect on the Article xx(b) defense which may be raised in response to the finding of violation of the other GATT obligation. By an a contrario reading of Article 2(4) of the Sps Agreement (the presumption paragraph), we could say that measures not conforming to the Sps Agreement will leave Article xx(b) devoid of any benefit of presumption and the Article xx defense will have to start from the beginning in the manner set forth for Article xx cases. Thus, in possibility No. 4, the respondent, in justifying its measure held to be inconsistent with the other GATT obligation, will have to make a full Article xx defense. The analysis for possibility No. 4 leads us to the question sought to be answered by this article. 4. ARTICLE xx(b): AN EXCEPTION TO THE SPS AGREEMENT? A final question may be raised as to whether Article xx(b) GATT, as a General Exception to all the obligations of the GATT, SPS Agreement obligations inclusive,-10 may be used to justify a measure found to be inconsistent with the Sps Agreement. I have earlier stated that measures found to be consistent with the Sps Agreement are presumed to be particularly in accordance with Article xx(b) GATT. So, the analysis boils down to the question in the reverse order of Article 2(5): i.e. should a measure inconsistent with the SPS Agreement then be presumed to be inconsistent with Article xx(b) GATT or, in the worst-case scenario, contrary to Article xx(b)? The author believes that the answer should be in the negative. zs See Canada-Administration of the Foreign Investment Review Act (L/ S/140), para. 5.20; Section 337, supra note 3, para. 5.27; EEc-Regulation on Imports of Parts and Components (Ei;c Parts F> Components) (L/ S/ 132), para It often happens that the complaining party presents a claim that if a violation of the GATT obligation has been found, the respondent's actions do not fall under the Article XX exceptions. For example, in the Herring and Salmon case, the United States argued, as a claimant, that Canada's export restrictions on herring and salmon were inconsistent with Article XI of GATT and also not justifiable under Article xx(g); GATT Dispute Panel Report, Canada-Measures Affecting Exports of Unprocessed Herring and Salmon (L/ S/98), para See a similar claim in the Tuna-Dolphin case, supra note 3, para. 3.1, (a) and (b). 29 Marceau and Trachtman stated: "If the analysis is continued under Article xx, the challenged Member would carry the benefits of this presumption in its GATT Article XX analysis (as a factual matter) and its measure would be presumed to be justified under Article xx. It would be for the challenging Member to reverse this presumption and demonstrate that less trade-restrictive alternatives were reasonably available to the importing country to ensure the same reasonable level of protection." Marceau and Trachtrnan, supra note 12, at 871. ;" The thapeau of Article xx reads: "... nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures..." (emphasis added). A question might be asked whether the "Agreement" should be interpreted to mean the GATT 1947/1994 only (since Article xx was originally crafted to operate within the GATT only) or the GATT and all the Uruguay Round Agreements and Understandings that were added to the GATT (the Sps Agreement is one of them). Since the GATT 1947, the GATT 1994 and the rest of the Agreements and Understandings are part of thc WTO Agreement, Article xx should also apply to these Agreements and Understandings. See also id., at 815.

14 I stated earlier that analysis under Article xx(b) GATT requires a three-step process: (i) a finding that the measure is in the sphere of the protection of human, animal or plant life or health; (ii) an affirmative finding on the necessity of the measure; and (iii) a finding that the elements of the chapeau are fulfilled.31 The SPS Agreement and Article xx(b) seemingly employ the same standard on the first and third points. The difference is in the word "necessary" as it is used in the two provisions. I said that in the SPS Agreement a measure is "necessary" only if it meets the requirements of the Sps Agreement,32 whereas an Article xx(b) measure is "necessary" if, assuming there is no GA'r'r-consistent measure available, it was the least inconsistent alternative.33 Now, assuming that a given sanitary or phytosanitary measure has been found to be inconsistent with the SPS Agreement (i.e. the measure was taken contrary to the provisions of the Suns), can the same measure still be held "necessary" "to protect human, animal or plant life or health" under Article xx(b) GATT and thus be used to justify an Sps Agreement inconsistency? An affirmative answer to this question becomes difficult to arrive at because of the special relationship between Article xx(b) GATT and the SPS Agreement. I have earlier stated that the Sps Agreement was established "to elaborate rules for the application of the provisions of GATT 1994 which relate to the use of sanitary or phytosanitary measures, in particular the provisions ofarticle xx(b)..." (emphasis added).34 Article 2(5) of the Sps Agreement also states that measures found to be consistent with the Sps Agreement are presumed to be particularly in accordance with Article xx(b) GATT. Thus, it gets difficult to use Article xx(b) against the very Agreement that was established to give the best possible meaning to it.35 However, logic dictates, and Article 2(5) of the Sps Agreement provides on the other side of the coin, that the measures provided for in the Sps Agreement do not define Article xx(b) GATT; they give the best possible explanation to the necessity provided for in Article xx(b) and they are a presumption thereof. There is a possibility, however slight,31 for the necessity under Article xx(b) to go beyond the provisions of 3 See United States-Import Prohibition of Shrimp and Shrimp Products (United States-Shrimp) (WT/DS58/AB/R), paras ; Section 337, supra note 3; GATT Dispute Panel Report, Thailand-Restrictions on Importation of and Internal Tax on Cigarettes (Thailand- Cigarettes) (DS10/R-37S/200), para. 74; Tuna-Dolphin, supra note 3. 3z SPS Agreement Article 2(1). 33 Section 337, supra note 3, para. 5.26; Thailand- Cigarettes, supra note 31, paras ; European Communities-Measures Effecting Asbestos and Asbestos-Containing Products (EC-Asbestas) (WT/DS135/AB/R), paras See Preamble to the SPS Agreement. 35 Although Article XX GATT and the SPS Agreement have a special relationship, Howse and Mavroidis rightly state that "the question as to which of the Sps Agreement and Article xx of GATT prevails remains unanswered at the positive level" and that "it is not clear that the Sps Agreement prevails over GATT"; Robert Howse and Petros C. Mavroidis, Europe's Evolving Regulatory Strategy for CMOS- The Issue of Consistency with WTO Law: Qf Kine and Brine, 24 F.D.M.IL.J. 317, (2000). 36 Macmillan and Blakeney hold: "Article 2(4) of the Sps Agreement creates what appears to be a 'safe harbor' with respect to compliance with GATT. According to this provision, sanitary or phytosanitary measures that comply with the Sps Agreement will be presumed to be in accordance with GATT and, in particular, within the exception in GATT Article xx(b). It seems, however, that this safe harbor also has an inverse effect. In the Beef Hormones panel decision it was held that where a measure violates the Sps Agreement it will not be open to the relevant member to argue that the measure comes within the exception in Article xx(b). There is nothing explicit in the

15 the Spas Agreement when an Spas Agreement measure is not enough to protect human, animal or plant life or health. The SPS Agreement only provides for a presumption, not a complete satisfaction of Article xx(b) GATT; the scope of the necessity requirement of Article xx(b) can go beyond the boundaries of the SPS Agreement. An analogous criminal law principle can be referred to in this instance. In criminal law, the doctrine of presumption of innocence only makes it very difficult, not impossible, for the prosecutor to have the accused convicted by a court of law. If the prosecutor can, however, show that it is "necessary" to go "beyond" (i.e. against) the "presumed" innocence of the accused and he can show a strong case and present sufficient evidence, he can possibly win a conviction. Similarly, when a Member believes that SPS Agreement-compliant measures which are presumed to protect its human, animal or plant life or health are not adequate to accomplish the protection, it can, under Article xx(b) GATT, take a measure, possibly inconsistent with the SPS Agreement, in accordance with the requirements of Article xx. In this line of argument, the author would like to make reference to a statement made earlier. It was stated that the provisions of Article xx(b) were best elaborated by the Sps Agreement. Paragraph 8 of the Preamble to the Sps Agreement reads: "... to elaborate the provisions... which relate to the use of sanitary or phytosanitary measures, in particular the provisions of Article xx(b)". This paragraph indicates the understanding of the drafters of the Sps Agreement that there are provisions of Article xx(b) which are "related" to sanitary or phytosanitary measures and that the SPS Agreement was created to "elaborate" these measures in a substantive way. More specifically, Article 2(5) of the Sps Agreement reads: "Sanitary and phytosanitary measures which conform to the relevant provisions of this Agreement shall be presumed to be in accordance with the obligations of GATT 1994 which relate to the use of sanitary and phytosanitary measures, in particular the provisions of Article xx(b)." (emphases added). Thus there is a possibility37 whereby a protective measure under Article xx(b) GATT may go beyond the elaborative rules for sanitary or phytosanitary measures provided for in the Sps Agreement.311 SPS Agreement which would appear to compel this conclusion. However, the panel's decision on this issue was based on the fact that the validity of Sns measure must first be considered under the Sps Agreement. If the measure is found wanting under the SPS Agreement it will necessarily fall foul of article xx(b)." (italics not original). Fiona Macmillan and Michael Blakeney, Cenetically Modifier Organisws and the World Trade Organization, 3 TuL. J. TECH. INTELL. NRON. 93, 108 (2001). 17 Marceau and Trachtman, supra, note 12, at , stated that the answer to the questions whether Article xx(b) GATT may be applied in an Sps Agreement violation case is "probably no" because the test under Article 5.5 of the Sps Agreement is more stringent than that contained in the drnpear of Article xx. However, the differences in the standards set for interpreting the necessity requirements in Article xx(b) and the SPS Agreement dictate that there could be a possibility, though apparently slight, of applying Article xx(b) against the SPS Agreement. 3x "There may certainly be circumstances governed by Article xx(b) of GATT that are not covered by the Sps Agreement. For example, the French measure that comprised the subject matter of the asbestos decision was not a sanitary or phytosanitary measure, as it did not relate to pests or disease or food, but was certainly subject to Article xx(b)." Ibid., at 870, n. 237, refereing also to, Hans-Joachim Priess and Chnstian Pitschas, Protection of Public Health and the Role nf the Precautionary Principle under W1o Law: A Trojan Horsc Before Genevn's Walls? 24 FORDHAM INT'L L.J., 519 (2000).

16 With respect to the relationship between the SPS Agreement and Article xx(b) of GATT 1994, the Panel in the Hormones case stated that the Sps Agreement has many substantive obligations which go significantly beyond those of Article xx(b): "IW]efind the EC claim that the Sps Agreement does not impose `substantive' obligations additional to those already contained in Article xx(b) of GA 7T not to be persuasive. It is clear that some provisions of the Sps Agreement elaborate on provisions already contained in GATT, in particular Article x x. The final preambular paragraph of the Sps Agreement provides, indeed, that the Members desired to 'elaborate rules for the application of the provisions of GATT 1994 which relate to the use of sanitary or phytosanitary measures, in particular the provisions of Article xx(b)'. Examples of such rules are, arguably, some of the obligations contained in Article 2 of the SPS Agreement. However, on this basis alone we cannot conclude that the SPS Agreement applies, if and only if, a prior violation of a GATT obligation has been established. Many provisions of the SPS Agreements impose `substantive' obligations which go significantly beyond and are additional to the reguirements for the invocation of Article xx(b). These obligations are, inter alia, imposed to 'further the use of harmonized sanitary and phytosanitary measures between Members' and to 'improve the human health, animal health and phytosanitary situation in all Members'. They are not imposed, as is the case of the obligations imposed by Article xx(b) of GATT, to justify a violation of another GATT obligation such as a violation of the non-discrimination obligations of Articles 1 or 11." (emphases added).39 This, however, is meant only to say that in the realm of application of sanitary and phytosanitary measures the SPS Agreement provides a more detailed set of provisions and not that for the purpose of protecting human, animal or plant life or health the Sps Agreement is broader than Article xx(b) GATT. Moreover, the Panel did not make the statement in the context of comparing the scopes of application of Article xx(b) and the SPS Agreement but was only answering the question whether the SPS Agreement, as elaborative of Article xx(b) GATT, should be used in the same way as Article xx(b) is used, i.e. to justify an inconsistency with a given GATT obligation. If the statement made by the Panel is, however, understood to mean that the Sps Agreement incorporates the provisions of Article xx(b) GATT in toto and goes further in all aspects, then: - an Article xx(b) justification would not be possible for an Sps Agreement inconsistency; i.e. there would be an exception to the General Exceptions clause stating, in effect: whereas all Article XX exceptions may be used to justify measures inconsistent with any one of the GATT obligations, an Article xx(b) justification may not be applied against an inconsistency with the Sps Agreement; and - the Panel would be understood to have negated the provision in Article 2(4) of the Sps Agreement which states that measures conforming to the Agreement shall be presumed to be particularly in accordance with the provisions of Article xx(b) GATT; i.e. if we understand the Panel to have meant that the SPS Agreement incorporates the provisions of Article xx(b) GATT and goes further, then measures conforming to the SPS Agreement would be equal to and even beyond, not a presumption of, the requirements of Article xx(b). 39 WTO ANALYTICAL INDEX, supra note 15.

17 Thus, in order to maintain the rationale behind the establishment of Article xx GATT, i.e. to allow Members to deviate, in limited circumstances, from their GATT obligations, Article xx(b) should also be applied to justify a measure found to be inconsistent with the SPS Agreement. 5. SHOULD ARTICLE xx(b) BE APPLIED TO THE SPS AGREEMENT IN THE SAME MANNER AS IT IS APPLIED TO OTHER GATT OBLIGATIONS? The next logical question to ask in this Article xx(b) GATT-Sps Agreement issue is: if Article xx(b) can be used to justify a measure found to be otherwise inconsistent with the SPS Agreement, should the same standards apply in this case as those which would apply in cases where Article xx(b) is used against GATT obligations other than the SPS Agreement? The GATT and WTO dispute settlement organs have uniformly applied the same Article xx(b) analysis steps40 against any GATT violations.41 When it comes to using Article xx(b) against an SPS Agreement violation, however, the author argues that the same standards should not apply for the following reasons: - Article xx(b) GATT is a paragraph addressing sanitary and phytosanitary measures;42 - the SPS Agreement was established to particularly elaborate Article xx(b) GATT; - in the realm of sanitary and phytosanitary measures, the Sps Agreement has advanced beyond the general provisions in Article xx(b) GATT; and - measures conforming to the SPS Agreement are presumed to be particularly in accordance with Article xx(b) GATT. Thus, the author believes that the degree of necessity required to be shown in an Article xx(b) GATT defense against a violation of the SPS Agreement should be different from that used in Article xx(b) defenses against violations of other GATT obligations. If an Article xx(b) defense is made in a case against violation of a GATT obligation other than the Sps Agreement, the GATT/WTO dispute settlement organs have consistently held that to be "necessary" under Article xx(b), a measure must, among the measures reasonably available to the respondent, be the one which entails the least degree of ; Supra notes 3 and 33. Thailand-Cigarettes, supra note 31, and EC-Asbestos, supra note 33, respectively. For example, in Thailand-Cigarettes, Article xx(b) was primarily invoked to justify a measure found to be inconsistent with Article xi(2) GATT (Quantitative Restriction), whereas in EC Asbestos, Article xx(b) was invoked to justify a measure found to be inconsistent with Article m(4) GATT (National Treatment). In both cases, the dispute settlement organs used the same standards of interpretation of Article xx(b). In tact, the Thailand-Cigarettes Panel, in interpreting the word "necessary" in paragraph b, "could see no reason why under Article xx the meaning of the term 'necessary' under paragraph (d) should not be the same as in paragraph (b)". Thus, except for the first of the three steps in interpreting an Article xx case (see supra note 3), analysis of paragraph b and d cases is the same. '2 Condon, supra note 7.

18 inconsistency with the GATT provision(s) in dispute.43 Thus, in a case like this, a WTO Panel or the Appellate Body would make an analysis of the measures available to the respondent and uphold the measure in dispute only if the measure were that which was the closest to consistency with the GATT obligation in dispute. But, if Article xx(b) GATT is used to justify a measure inconsistent with the Sps Agreement, it is the author's belief that the WTO should make it harder for the respondent to pass muster for the necessity requirement; otherwise, a similar standard would do away with the unique relationship that the Sps Agreement has with Article xx(b). The most logical standard to apply in an SPS Agreement-Article xx(b) GATT case would, therefore, be to require the respondent to prove that the measure taken was the only measure available to it to protect its human, animal or plant life or health. D. CONCLIJSION The SPS Agreement was established to elaborate the provisions of Article xx(b) GATT, and thus a measure conforming to the Sps Agreement creates a legal presumption of conformity with Article xx(b). A predominantly sanitary and/or phytosanitary measure may be disputed for its inconsistency with the SPS Agreement and any other GATT obligation. In such cases, therefore, a positive SPS Agreement finding can be employed to justify the measure under Article xx(b) GATT if the measure is found to be inconsistent with the other GATT obligation. This establishes a prima_facie case in favor of the respondent and thus shifts the burden of proof from the respondent to the complaining party to show that the respondent's measure did not conform to Article xx(b). In a negative Sps Agreement finding, Article xx(b) can be used to justify the measure against its SI'S Agreement-inconsistency, though under a more stringent standard than that applied in using Article xx(b) against the other GATT obligation. II. ARTICLE xx(b) GATT AND THE TBT AGREEMENT A. THE TBT AGREEMENT IN GENERAL, One of the Agreements contained in Annex 1A to the WTO Agreement is the Agreement on Technical Barriers to Trade (the TBT Agreement), one of the areas of " Supra note 33. Of course, an Article xx(b) respondent should also prove that the measure in dispute was taken to protect the life or health of humans, animals or plants and that the measure conforms to the requirements of the chapenu of Article xx. Some WTO cases have, however, required an affirmative finding on what is called the "balancing test", which should be employed by the decision makers in the process of ascertaining whether there was a reasonably available GATT-consistent measure or whether the measure taken was the least GATT-inconsistent available measure. The balancing test involves consideration of at least three variables which bolster the necessity of the measure in dispute. The Appellate Body, in the Korea-Beef case, identified these non-exclusive variables by stating: "In sum, determination of whether a measure, which is not 'indispensable', may nevertheless be 'necessary' within the contemplation of Article xx(d), involves in every case a process of weighing and balancing a series of factors which prominently include the contribution made by the compliance measure W the enforcement of the law or regulation at issue, the importance of the common interests or valuers protected by that law or regulation, and the accompanying impact of the law or regulation on imports or exports." (emphasis added). Korea-Measures Alfecting Imports of Fresh, Chilled and Frozen Beef(Korea-Beef) (WT/DS161/AB/R and WT/DS169/AB/R), para See also EC-Asbestos, supra note 33, para. 172.

19 the new WTO jurisprudence not made the subject of thorough case analysis. The Ts'r Agreement owes its origin to the Kennedy Round of multilateral trade negotiations, at the end of which it became clear that non-tariff trade barriers, as did tariff measures, were equally contributing to the hiatus on the march towards a fruitful international trade regime.44 Among those were the so called "technical barriers to trade", for which a Draft Code for Preventing Technical Barriers to Trade was prepared during the Tokyo Round. In the Tokyo Round, the task of furthering the Code was entrusted to the Sub-Group on Technical Barriers, which prepared an extensive work by the end of mid During the Uruguay Round, the task was given to the Multilateral Trade Negotiation Group. With the coming of the WTO, as was so for all the Agreements and Understandings annexed to the W'ro Agreement,4 the TBT Agreement was made a mandatory obligation on all WTO Members. The primary objective of the TBT Agreement is to avoid unnecessary obstacles to international trade by the application of different technical regulations and standards in different Members.47 The Preamble to the TBT Agreement recognizes that Members have the right to employ their own technical regulations and standards to improve the quality of exports and other objectives; however, the Preamble notes that the application of different standards by different Members can create unnecessary obstacles to international trade.48 Therefore, the Ts'r Agreement calls on WTO Members to work for the development of international standards and conformity assessment systems.4' The TBT Agreement identifies two groups of unnecessary obstacles to international trade by implication. First, those created by the preparation, adoption, and application of technical regulations, standards and conformity assessment procedures at the national level.50 Second, even if such obstacles have been removed at the national level, the fact that the national measures of different Members differ from each other is an obstacle in the sense that the different measures aim at securing different objectives. 51 It is to avoid the second obstacle that the TBT Agreement calls for the use of international standards and conformity assessment systems. The TBT Agreement tries to address the obligation of Members in designing their national technical regulations, standards and conformity assessment systems (Terescas)52 and their obligations in establishing the international measures. 44 Edmond L.M. Volker, THE AGREEMENT ON TECHNICAL BARRIERS TO TRADE, THE URUGUAY ROUND RESULTS: A EUROPEAN LAWYER'S PERSPECTIVE 281 (n.d.). 45 id., at 282. ab There is, however, an exception with the so called "Plurilateral Trade Agreements" which arc contained in Annex 4 to the W ro Agreement and are voluntarily entered into. These Agreements arc: Agreement on Trade in Civil Aircraft; Agreement on Government Procurement; International Dairy Agreement; and International Bovine Meat Agreement. a Preamble to the Agreement on Technical Barriers to Trade (TBT Agreement), WTO Agreement, Annex 1A, para. 5. aa Id., para. 6. a9 Id., para Volker, supra note 44, at Id. See also Jackson et al., supra note 10, at = The TuT Agreement applies to these three types of measures; see Macmillan and Blakeney, supra note 36, at 109.

20 B. NECESSITY UNDER THE TBT AGREEMENT As indicated above, the main objective of the TBT Agreement is to avoid unnecessary obstacles from the application of TERES CAS by different Members on the same products. For that purpose, the TBT Agreement, in its Annex 1, has defined Technical Regulations,53 Standards54 and Conformity Assessment Procedures.55 The substantive obligations of WTO Members in applying Technical Regulations and Standards to avoid unnecessary obstacles to international trade are contained in TBT Agreement Article 2. Article 2(2) contains provisions that define "necessity" in light of the TBT Agreement, a definition which will lead us into the relationship between the TBT Agreement and Article xx GATT. The paragraph reads: "Members shall ensure that technical regulations are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade. For this purpose, technical regulations shall not be more trade-restrictive than necessary to fulfill a legitimate objective, taking account of the risks non-fulfillment would create. Such legitimate objectives are, inter alia: national security requirements; the prevention of deceptive practices; protection of human health or safety, animal or plant life or health, or the environment. In assessing such risks, relevant elements of consideration are, inter alia, available scientific and technical information, related processing technology or intended end-uses of products." (emphases added). It can be inferred from this paragraph that a technical regulation is considered to create an unnecessary obstacle if either: - the regulation is more restrictive than necessary to fulfill a legitimate objective; or - the objective itself is not legitimate.56 Although neither the TBT Agreement nor any of the very few WTO cases that have addressed it explain what is a "more restrictive than necessary" standard, an ordinary meaning of the term seems to imply that the TBT Agreement prefers a less restrictive measure, if available, to achieve the legitimate objective at hand.57 Some authors, in defining what measure is "necessary" under Article 2(2), refer to a negotiation history during the Uruguay Round that a "least-trade-restrictive" standard was intended to be applied to meet the necessity requirement under the TBT Agreement; thus, they would 53 A Technical Regulation is a document which lays down product characteristia or their related processes and production methods, including the applicable administrative provisions, with which compliance is mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labeling requirements as they apply to a product or production method. 54 A Standard is a document approved by a recognized body that provides, for common and repeated use, rules, guidelines or characteristics for products or related processes and production methods with which compliance is not mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labeling requirements as they apply to a product or production method. 55 A Conformity Assessment Procedure is any procedure used, directly or indirectly, to determine that relevant requirements in technical regulations or standards are fulfilled. sb Välker, supra note 44, at "In short, unnecessary obstacles in the sense of Article 2(2) result from national technical regulation if the resulting restrictions can be avoided or reduced without endangering fulfillment of the object pursued; if the resulting trade restrictions that cannot so be avoided are disproportionate in the light of the risks involved; or if the objective concerned is not legitimate in the terms of the Agreement." Id., at 290.

21 apply a test similar to the "least-gn'r'r-inconsistent" test applied for Article xx(b) and (d) GATT.S8 Article 2 then proceeds to provide that technical regulations established according to paragraph 2 are rebuttably presumed not to create unnecessary obstacles to trade;59 that Members should participate in the creation of international TErtESCAS;b that Members should give positive consideration to technical regulations of other Members;61 etc. C. ARTICLE XX(b vis-a-vis THE TBT AGREEMENT The question relevant to the scope of this article is: how is the TBT Agreement related to the General Exceptions contained in Article xx GATT, and particularly paragraph b? Although it does not claim, like the SPS Agreement, to elaborate on any one of the paragraphs of Article xx GATT, one of the objectives of the TBT Agreement is to allow the taking of TEI scas measures related to those enumerated in Article xx in a manner similar to that provided in the chapeau of Article xx. Paragraph 6 of the Preamble to the TBT Agreement reads: "Recognizing that no country should be prevented from taking measures necessary to ensure the quality of its exports, or for the protection of human, animal or plant life or health, or of the environment, or for the prevention of deceptive practices, at the levels it considers appropriate, subject to the requirement that they are not applied in a manner which would constitute a means of arbitrary or unjustifiably discrimination between countries where the same conditions prevail, or a disguised MMcd restriction rmfnc om o on t international Mfcr Mf OMf! trade, fm c, and are otherwise in accordance with the provisions of this Agreement..." (emphasis added). This paragraph indicates the common grounds that the TBT Agreement and GATT Article xx(b) and (go share. As stated earlier, in the discussion of the Sps Agreement, the TBT Agreement is also a substantive agreement containing its own set of obligations. Nevertheless, the concepts contained in the chapeau of Article xx, also found in the TBT Agreement, are general requirements to justify any measure taken under the TBT Agreement or Article xx. Similar to what I noted on the Sps Agreement, the provisions of the TBT Agreement are more detailed than those of Article xx GATT. Therefore, in the area of protecting the life or health of humans, animals or plants (Article xx(b)) or in the SR See Marceau and Trachtman, snpra note 12, at The authors base their analysis on a 1993 Explanatory Note from the GATT Secretariat to the Standards Code that reads that the use of the paragraph, which would later be Article 2(2) of the Tur, "in the context of standards has evolved to mean that those standards which have the least degree of trade restrictiveness should be used. Consideration of the degree of restrictiveness should be proportional to the risk of non-fulfilment of the legitimate objectives in the case of THr. In the Sps case, because the assessment of risks to health are already reflected in the determination of the appropriate level of protection, contracting parties should use the least restrictive means to achieve this level of protection." Sy TBT Agreement, Article 2(5). Id., Article 2(6). fi' Id., Article 2(7). 62 Although Article xx(g) is not a provision that applies to all forms of environmental measures (it being limited to the conservation of exhaustible natural resources), it is the only paragraph in Article XX that deals with the protection of the environment in a given area of environmental conservation.

22 sphere of protecting the environment (Article xx(g)), the same measure taken under the Ts'r Agreement may be made the subject of an Article xx(b) or (g) defense against any other GATT obligation allegedly violated by the measure. A WTO Member, for instance, can have a technical regulation enacted to monitor the quality of beef or drugs or fertilizers or gasoline or fishery products, etc., imported into its markets. The technical regulation can have such an effect that some exporting Members may complain that the technical regulation is discriminatory (under most-favored-nation treatment or national treatment) or has the effect of an import prohibition (under Article XI GATT) and/or that the technical regulation creates an unnecessary obstacle to international trade because the effect on trade is graver than the risk purported to be avoided (under the TBT Agreement). The respondent, then, in order to win the case, has the duty of defending its technical regulation under the provisions of GATT and/or the TBT Agreement (independent of the GATT arguments) and, if a violation of GATT and/or the TBT Agreement is found, the duty defending of the measure under Article xx(b) or (g) GATT. This is what happened in the 1996 WTO case of United States-Gasoline,63 where the so called "baseline requirement" established by the U.S. government required all gasoline, imported or domestic, to maintain the level of emission as it existed in The baseline requirement was made a subject of arguments under Article In(4) GATT, the TBT Agreement definition of "technical requirement" and an Article xx(g) GATT defense for an Article m(4) violation. Similarly, in the EC-Asbestos case, the Appellate Body made a separate analysis of the TBT Agreement and GATT Article III(4)65 for the same prohibition measure that France introduced against asbestos-containing fibers from Canada (although the Article xx(b) analysis was made only against Article In(4)). D. ARTICLE XX b AND THE TBT AGREEMENT VIS-A-VIS OTHER GATT Obligations I have noted in the previous section that Article xx(b) and the TBT Agreement have a very loose relationship with one another. This, however, does not mean that they do not share any substantive common ground at all. In fact, I noted, referring to TBT Agreement Preamble paragraph 6 and Article 2(2), that the protection of human, animal or plant life or health is one of the legitimate objectives recognized by the TBT Agreement, which objective is underlined by Article xx(b) GATT as well. The author believes that a positive TBT Agreement finding can help an Article xx(b) defense against a finding of inconsistency of the same measure with other GATT obligations (except the Sps Agreement). It was stated at the beginning of this article that the first step in interpreting an Article xx GATT case is to make sure that the 63 United States-Standards for Reformulated and Conventional Gasoline (Uttited States-Gasaline) (WT/DS2/AB/R), (,4 EC-Asbestos, supra note 33, paras H.,paras

23 measure falls under the interest represented by the paragraph.«this is the gate-opener to all Article xx defenses, and all GATT/WTO Panels (the WTO's Appellate Body inclusive) had to primarily settle this issue in untying the disputes.67 A measure recognized as a legitimate objective by any one of the Agreements of the WTO will definitely have the benefit of being recognized as a measure introduced within the limits of an Article xx GATT paragraph employing similar provisions. In this context, the TBT Agreement recognizes any technical regulation introduced to protect human, animal or plant life or health as a legitimate objective of a WTO Member's trade regime. Therefore, the author believes that if a technical regulation introduced to protect human, animal or plant life or health is found to be consistent with the TBT Agreement, then this measure should be presumed to be one taken within the protective provisions of Article xx(b) GATT. With the door to Article xx(b) opened as such, the respondent would then argue only on the "necessity" and "chapenu" steps to win its case. Whether a measure that is consistent with the TBT Agreement should, by interpretation of the law, be presumed to be in accordance with the GATT and Article xx(b) thereof is left to further T s amendments or WTO panels/appellate Body interpretations.68 E. THE AR'I'ICLE XX H DEFENSE AGAINST INCONSISTFNCIF.S with THE TBT AGREEMENT If a given measure is found to be inconsistent with the TBT Agreement, a question might arise whether the same standard of interpretation of Article xx(b) GATT should be used as that used in the case of other GATT obligations (except the Sps Agreement, in which case the author had argued that a different Article xx(b) standard be applied). The answer depends on the relationship Article xx(b) GATT has with the TBT Agreement. As stated above, the TBT Agreement does not make a specific reference to Article xx(b) GATT. The only two paragraphs making use of phrases analogous to those of Article xx(b)6 (paragraph 6 of the Preamble and Article 2(2)) mention the protection of human, animal or plant life or health in a list of various legitimate objectives that are desired to be attained by introducing the Terescas.70 Moreover, the TBT Agreement does not have a provision, like Article 2(5) of the Sps Agreement, that states that Supra note 3 and accompanying text. Tuna-Dolphin, supra note 3, paras , ; United States-Gasoline, supra note 63, Section tt, B; Korea-Beef, supra note 43, paras ; EC-Asbestos, supra note 33, paras ; United States-Shrimp, supra note 31, paras ; European Cornmunities-Protection of Trademarks and Geographical Indications for Agricultural Product and Foodstuffs (WT/DS174/R), paras , , 7.462; Esc-Parts Components, supra note 28, paras Marceau and Trachtman, supra note 12, at 873, similarly mention: "As with the Sps Agreement, it would be best if compliance with the Ttsr Agreement gave rise to a presumption of compliance with GATT." 6" Note that these paragraphs do not use the word "necessary", which word is crucial, if not the most important one, in an Article xx(b) case. 7(1 These legitimate objectives include, inter alia: ensuring quality of exports; prevention of deceptive practices; national security requirements; protection of human health or safety, animal or plant life or health, or the environment.

24 TBT Agreement-compliant measures shall be presumed to be particularly in accordance with Article xx(b) GATT. One would, therefore, conclude that Article xx(b) has a loose link with the Ts'r Agreement. The author believes that the TBT Agreement ranks equally with the other GATT obligations (except the Sps Agreement) in an Article xx(b) defense.71 A standard of Marceau and Trachtman, supra note 12, at 874, however, make a reference to the EC-Asbestos case and note their observation as follows: "Another interesting issue is the coverage of Article 2.1 of the TBT Agreement and its relationship with Articles I, m and XX of Gnrr. If the scope and meaning of Article 2.1 is similar to that of Articles in and I, a single technical regulation could be a prionafacie violation of Article III but be justified under Article xx GATT, while also in violation of Article 2.1 of the TBT Agreement without any possibility of justification-even if the same regulation were found not to be in violation of Article 2.2 of the TBT Agreement. Article 2.1 cannot be invoked as a defense to a violation of Article 2.1 and this seems to have been accepted by the Appellate Body in EC-Asbestos when it concluded that the Tbt Agreement was applicable to the measure at issue but decided not to complete the analysis under that agreement (for various reasons including judicial economy). Its findings were that the measure could in any case be justified under Article xx GATT. But Canada had made a claim under Article 2.1 of the Tri Agreement. If there was a possibility that the French measure violated TBT Article 2.1 without any acceptable defense, the Appellate Body would have committed a denial of justice against Canada in refusing to address its claim under Article 2.1 of the TBT Agreement." (emphasis added). N.B. The author infers from the context of the paragraphs around the quoted paragraph that the authors of the article might also have otherwise used the phrase "One may argue that Article xx of GATT 1994 cannot be invoked" instead of the introductory phrase italicized here in the quotation. The author found this phrase in an updated version of the article sent to him by from one of the authors, Professor Joel P. Trachtman, on 23 November 2005, page 48. Professor Trachtman's address is: oel.trachtman@tufts.edu>. Under such circumstances, the author, however, believes that the W ro Appellate Body would (could) have independently discussed Article xx(b) in light of the TBT Agreement had it chosen to address the substantive TBT Agreement issues, which the Appellate Body did not do because the Panel did not discuss the substance of TBT Agreement Article 2(1), 2(2), 2(4) and 2(8). For the Appellate Body, the case remained an Article in(4)/xx(b) dispute only. Macmillan and Blakeney, supra note 36, at , also argue that a TBT Agreement finding defeats an Article 20 defense: "The waters surrounding the relationship between the TBT Agreement and GATT seem to be particularly muddy. According to general principles of interpretation under the WTO Agreement, in the event of a conflict the TBT Agreement would take precedence over the GATT Agreement. This might lead one to the conclusion that if a national measure complied with the TBT Agreement it would be valid despite its failure to qualify for an exemption under GATT Article xx. Strangely, however, unlike the Sps Agreement, the TBT Agreement contains no safe harbor from noncomphance with the GATT. The puzzlement that this creates about how the TBT Agreement fits into the overall scheme of things is not alleviated by proceedings that have taken place under the Dispute Settlement Understanding (Dsu). In this context the most notable (and perplexing) is the Reformulated Gasoline case. This case concerned the imposition by the United States of differential measures on domestic and imported gasoline. It sought to bring these measures within the scope of the environmental exception in Article xx(g) of GATT, arguing that clean air was an exhaustible natural resource, on the basis that it was impossible to check production data with respect to gasoline refined outside the United States. The measures in Reformulated Gasoline, as they applied to the refining of gasoline, seem to fall squarely within the definition of technical regulation in the Tn'r Agreement. Nevertheless, the TBT Agreement was not an issue in Reformulated Gasoline. Once it had been decided that the exemption in Article xx(g) of Gnrr did not apply this seemed to be the end of the matter, despite the apparently more generous justifications and exceptions under the TBT Agreement and the fact that the TBT Agreement ostensibly supersedes GATT in the event of a conflict. This is rather disquieting. By failing to consider the TBT Agreement, however, the Appellate Body implied either that the TBT Agreement does not supersede Article 20 in cases of conflict or that the Agreement has a scope as narrow as or narrower than Article 20. Arguably, the Gasoline Case indicates that the TBT Agreement actually imposes additional requirements on top of the general GATT rules, the interpretative provision notwithstanding, and that it may defeat an Article 20 defence." I, however, argue that if the TBT Agreement is held to defeat an Article xx defence, an exception would be made to Article XX which applies to all the obligations contained in the W ro Agreement (the TBT Agreement inclusive), i.e. Article xx applies to all W ro obligations except the TBT (or Sps) Agreement. This would disturb the substance of Article xx as well as the jurisprudence that has developed in regard to it. Macmillan and Blakeney also made a statement at the beginning of the quoted paragraph that the WTO Agreement states that the Agreements (like the TBT Agreement) prevail over the General Provisions (and using this to argue later that the TBT Agreement should be construed to be "narrower" than and thus "defeating" Article XX, which is contained in the general GATT provisions). However, it is worth remembering that Article XX, although contained together with the general GATT provisions, was drafted to be an exceptivn to the general GATT provisions (and now also to the other WTO Agreements, the TBT Agreement inclusive).

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