WTO Environmental and related cases
- Panels established in two seal cases against EU (March 2011)
The WTO Dispute Settlement Body has established two panels to deal with the complaints by Canada about Belgium's and The Netherlands' import ban on seal products (case DS369) and the EU-wide import ban on seal products (case DS400). In the latter case, Canada claims that its seal harvest is lawful, sustainable, strictly regulated and guided by rigorous internationally recognised animal welfare principles, that the seal population was healthy and abundant and that the seal harvest provided thousands of jobs in its remote coastal and northern communities where few economic opportunities exist.
Iceland, a country aspiring to become an EU Member State, said this dispute was not just about seal products but also related to the principle of sustainable utilisation of all living marine resources and the ability to market the products resulting from hunting and fishing. The country claimed that there were no justifiable grounds for the ban imposed by the EU, while adding that the seal population was not in any way threatened. Colombia, Japan, Mexico, Norway, Iceland, China and the US reserved their third-party rights.
The first case might be solved soon. It concerns Dutch and Belgian legislation stricter than the EU rules. The Dutch government has already signed a decree withdrawing its national prohibition on 15 March 2011, which was expected to be published in the Dutch Official Bulletin within two weeks and would enter into force eight weeks after this publication. The EU explained that Belgian authorities would repeal their measure or amend it so that it was limited to implementing the EU regulation, and concluded that pursuing this dispute would serve no useful purpose and trusted that Canada would abandon its claims as soon as the Belgian and Dutch measures were effectively repealed.
See also WTO news and ICTSD news digest.
EU not to appeal against WTO ruling on GMOs (December 2006)
The European Union will not appeal against a ruling by the World Trade Organization in September 2006 that the EU’s blockade on the marketing of new genetically modified organisms (GMOs) violated trade rules. Environmental organizations warn that accepting the ruling sets a dangerous precedent for future environmental disputes. Source: Reuters.
- WTO hearing on EU’s beef hormones ban
On 12 September 2005 the WTO opened its first public trade dispute process in Geneva. The subject is trade in hormone-treated beef between the EU, the USA and Canada. Use and thus importation of such meet was banned in EU since mid-1980s, but in cases DS48 and DS26 the USA and Canada the WTO Appellate Body decided that the EU’s scientific methods used to arrive at the hormones ban were insufficient. The dispute went on, and US and Canada imposed trade restrictions on the EU as retaliation for the hormones ban. The question at stake now is whether to reverse these duties and end the trade restrictions.
See for more news the WTO website News page on this issue (with further documents and a video presentation). For further reading please see The Beef hormones dispute and the use of national standards under WTO law (together with M. Jacobs), European Environmental Law Review, 1999, nr. 5, p. 137-144.
- WTO Dispute Settlement Panel on Tuna – Dolphin
DS 381 Us – Tuna II (Mexico), 15 September 2011
The Panel ruled on US dolphin protection measures, a topic that already lead to two unadopted decisions in the pre-WTO period. The WTO Panel ruled that the US rules on a voluntary labelling scheme, allowing for labelling of tuna caught without killing dolphins when detailed requirements are met, were constituting mandatory technical standards under the TBT Agreement that were unnecessarily trade restrictive. A dissenting Panel member pointed out that in a voluntary labelling scheme, labelling requirements are not mandatory for marketing products and thus do not constitute mandatory technical requirements. The US policy disallowed “dolphin-safe” labeling on tuna caught in the eastern Pacific with purse-seine nets. Those nets can entrap, in addition to the targeted tuna, unwanted marine life such as dolphins, and are used by Mexican fishermen.
The Panel did find that the measures applied by the US were not discriminating against Mexican products, and that the use of international fishing standards was not effective enough to achieve the US objective. Nevertheless, the US measure was found to be WTO inconsistent as it was disproportionate to the legitimate objectives pursued according to the Panel. The labeling provisions were found to be more trade-restrictive than necessary in the light of the objectives of informing consumers and protecting animal health. A less trade-restrictive alternative that would achieve a level of protection equivalent to that achieved by the US measure was available, the Panel concluded. It also found that the label only partly fulfilled the aim of dolphin protection as it fell short of addressing the mortality caused by other tuna fishing methods outside the eastern Pacific. The USA can appeal the Panel report.
For news on the EU protection of dolphins, see Commission COM(2011)578 of 21 September 2011 on the implementation of certain provisions of Council Regulation (EC) No 812/2004 laying down measures concerning incidental catches of cetaceans in fisheries and amending Regulation (EC) No 88/98.
On 15 July 2009, the European Union and Canada have signed in Geneva a final settlement of the WTO dispute that Canada brought against the EU in May 2003 regarding the application of its legislation on biotech products. In 2003, Argentina, Canada and the United States separately challenged certain measures taken by the EC on the approval of biotech products which have restricted imports of agricultural and food products. In 2006, the WTO Dispute Settlement Body adopted three panel reports which found a violation of the WTO Sanitary and Phytosanitary (SPS) Agreement. The settlement reached with Canada provides for the establishment of a regular dialogue on issues of mutual interest on agriculture biotechnology. This dialogue is aimed at an exchange of information that would contribute to avoiding unnecessary obstacles to trade. The EU is not expected to modify its current regulatory regime on biotech products, which was never subject to WTO challenge in itself. The EU and Canada will notify this settlement to the WTO Dispute Settlement Body as a mutually agreed solution.
On 3 December 2007, the Appellate Body issued its ruling, reversing a number of findings of the Panel, notably where it concerned the inconsistencies with the 'chapeau' of Article XX. This will make it hard or impossible for Brazil to upkeep its import restrictions on retreated tyres, just like the EU set out when launching this appeal. One interesting aspect of the case is the way in which this WTO Appellate Body, judging the case on the basis of WTO law, looks into the defence strategy of Brazil in a Mercosur case about the same import restrictions where an environmental protection clause was not invoked.
- Brazil – Measures affecting imports of retreated tyres
In a landmark case concerning trade issues and the environment, on 12 June 2007 the WTO Panel agreed that a Brazilian import ban on retreated tyres could be justified for the protection of human, animal or plant life or health. As Brazil applied this ban inconsistently, it could not invoke the exception of Article XX(b) GATT. The country announced its plan to lift these inconsistencies and upkeep the import restrictions. The EU, opposing the import ban, asked for an appeal, which met strong disapproval from European NGOs. For an opinion on the implications of the decision, see the website of the American Society of International Law. For further developments, please visit the WTO dispute summary page.
- WTO final report in biotech disputes, ‘Measures affecting the approval and marketing of biotech products’
Disputes 291, 292 and 293
The US, Canada and Argentina had challenged the European moratorium on approvals of biotech products, various product-specific EC measures related to the approval of biotech products and various safeguard measures from EC Member States related to the import and/or marketing of biotech products in May 2003. The WTO-Panel examining the complaints issued its final report on 29 September 2006, stating that the EU’s four-year moratorium on licensing genetically modified crops breaches global trade rules. The Report rejected most of the other claims. For further info, see the findings and conclusions
- EC - Measures Affecting Asbestos and Asbestos-Containing Products, Dispute DS 135 (pdf file)
French legislation banning asbestos is held to be in conformity with international trade law. The Appellate Body found that Article III:4 of GATT 1994 was not violated, as carcinogenic asbestos products and their replacements in this case do not form like products. Also, the French measures can be considered as measures necessary for the protection of human health within the meaning of Article XX(b) GATT 1994, in spite of Canada´s arguments to the contrary. A quantification of the risk, as Canada would like to see, is not required. See also the Joined statement (pdf file) of 14 March 2001, by environmental groups on the Asbestos ruling, welcoming the finding that the French ban was justified as a health exc
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