The Case for Rethinking the WTO
The full story behind the WTO’s
environment and health cases
Earthjustice Legal Defense Fund
November 1999
Earthjustice Legal Defense Fund
Earthjustice Legal Defense Fund is a nonprofit public interest environmental law firm that provides
services to citizens' groups seeking greater protection for our natural environment. Since its inception in
1971, the Legal Defense Fund has been involved in many of the nation's most important environmental
battles. Through its active and diverse litigation practice, the Legal Defense Fund has established valuable
precedents in cases involving air and water quality, endangered species, forestry, public land use, toxins,
international environmental law, and environmental justice.
Authors
Martin Wagner
Earthjustice Legal Defense Fund
180 Montgomery Street,
Suite 1725
San Francisco, CA 94104
Phone: 415-627-6725
Fax: 415-627-6749
mwagner@earthjustice.org
Patti Goldman
Earthjustice Legal Defense Fund
203 Hoge Building
705 Second Avenue
Seattle, WA 98104
Phone: 206-343-7340
Fax: 206-343-1526
pgoldman@earthjustice.org
Published by
Earthjustice Legal Defense Fund
San Francisco, CA 1999
www.earthjustice.org
Copyright © 1999 by Earthjustice Legal Defense Fund
You can find The Case for Rethinking the WTO
at the web site www.earthjustice.org
With gratitude for financial assistance from
C.S. Mott Foundation and C.S. Fund
Contents
Introduction
U.S. Sea Turtle Protections
The Pre-WTO Challenges to U.S. Dolphin Protections
U.S. Clean Air Regulations
European Ban on Hormone-Treated Beef
The Asbestos Case
Conclusion
Notes
Introduction
The environmental community is calling for major reforms of the World Trade Organization’s
rules to remove obstacles to strong environmental and health protections at the local, state,
national, and international level. Specifically, the environmental community seeks to guarantee
countries the right to restrict imports to limit the harmful effects of trade, including such effects in
the areas of logging, fishing, and production. In addition, the WTO rules should leave countries
free to employ the precautionary principle to protect their people and the environment against
risks of harm.
When nations entered into the WTO, they agreed to be bound by its voluminous sets of rules.
These rules prohibit discrimination against foreign products and bar import restrictions. While the
WTO has exceptions for measures intended to conserve exhaustible natural resources or to
protect human and animal health, the exceptions are riddled with so many conditions that it is
extremely difficult for domestic regulations to pass muster.
The WTO authorizes one country to challenge another country’s laws or regulations. These
challenges are decided by panels of three trade experts whose proceedings are shrouded in
secrecy. Only the governments involved in the disputes can present arguments to the panels. If a
law is found to violate the WTO’s rules, and the law is not changed, the WTO authorizes the
imposition of trade sanctions to force a change in the law.
In its first five years, health and environmental standards have not fared well before the WTO. In
three key cases, the WTO has ruled against a regulation under the U.S. Clean Air Act, the sea
turtle protections under the U.S. Endangered Species Act, and a European ban on beef produced
with growth hormones. A challenge to a French ban on asbestos is pending.
The environmental community has drawn on these decided cases to demonstrate the need for
reform of the WTO rules. Opponents of reform have painted a picture of these cases as benign in
an attempt to refute the need for change. However, many of these arguments have been made
rhetorically, without a careful examination of what was at stake in the disputes and what the
WTO panels decided.
Earthjustice Legal Defense Fund is well-suited to set the record straight. We have represented
nongovernmental organizations seeking to defend each of these laws before the WTO. We have
provided assistance to the governments defending the laws being challenged, and we instituted
the practice of preparing friend of the court briefs that present the views of interested elements of
civil society to WTO dispute panels. The WTO returned our submission in the hormone case,
underscoring that “non-governmental organizations may not submit materials to a dispute
settlement panel.”1 In the shrimp-turtle case, the United States attached our brief to its
submission, but it adopted only those arguments that concurred with those made in the U.S.
submission and indicated that, in its view, the Appellate Body need not respond to the other
points made in our brief.2
This report describes the context in which each of the challenges arose, the dispute panel
decisions, and the impact of the rulings. It is designed to give readers more than the rhetoric and
sound bites that are the fodder of much of the current debate.
U.S. Sea Turtle Protections
Sea turtles are highly migratory, nesting on beaches, swimming deep in the ocean, and feeding
in coastal areas and river mouths. They have been on this planet for more than 150 million years,
since before the time of the dinosaurs.
Sea turtles are on the brink of extinction. All seven species of sea turtles are classified as
endangered, threatened, or vulnerable under both international and national law. The Kemp’s
ridley turtle is one of the most endangered species in the world with only about 2000 nesting
females remaining.
The leading threat to sea turtle survival is shrimp trawl fishing because sea turtles become caught
in the nets and drown. An estimated 150,000 sea turtles drown in shrimp nets each year.
An inexpensive device, called a turtle excluder device or TED, catches the turtles in a trap that
has an escape hatch, thereby directing the turtle out of the net and saving its life. TEDs reduce the
number of turtles killed by shrimp fishing by 97%.
The U.S. Law
Since 1987, federal regulations have required U.S. shrimpers to use TEDs. In 1989, Congress
amended the U.S. Endangered Species Act to prohibit the import of shrimp from countries that do
not have comparable sea turtle protections.3 The law became effective in May 1991, but the U.S.
State Department gave countries a three-year period in which to comply with the law.
The State Department interpreted the law to apply only to 14 countries in the Caribbean and
Western Atlantic. Earth Island Institute, Sierra Club, the Humane Society of the United States,
and others challenged this interpretation in court and won. In 1996, the U.S. Court of
International Trade ordered the U.S. government to apply the turtle law worldwide by May 1,
1996.4
In an attempt to appease our trading partners, the State Department issued guidelines, applying
the law vessel-by-vessel rather than country-by-country. Under this new interpretation, shrimp
could come into the United States if an exporter declared that it came from a ship that used TEDs,
even if the exporting country allows harmful fishing by other vessels. In October 1996, and again
in April 1999, the U.S. Court of International Trade held that the vessel-by-vessel approach
violates the statute.5
The WTO Challenge
Thailand, Pakistan, India, and Malaysia mounted a trade challenge in the WTO. Thailand led the
charge, even though it required its shrimp fleet to use TEDs and its shrimp could freely enter the
United States. A WTO dispute panel and the WTO Appellate Body both ruled in favor of the
Asian countries that challenged the U.S. sea turtle protections. These panels consist of three trade
experts who conducted their proceedings behind closed doors. The U.S. Trade Representative and
State Department defended the law. On behalf of Earth Island Institute and other environmental
groups, Earthjustice Legal Defense Fund asked that it be part of the U.S. delegation defending the
law, but the United States refused that request. In a turn of events reminiscent of the fox guarding
the chicken coop, the same lawyers arguing in favor of weak interpretations of the law in U.S.
court were its sole defenders before the WTO.
Import bans are generally forbidden by the WTO,6 but there is an exception for conserving
exhaustible natural resources.7 WTO exceptions have so many prerequisites, however, that the
panels found several reasons why the sea turtle protections violate the WTO rules.
In the dispute, all the countries agreed that sea turtles are severely endangered, that it is important
to protect them, and that TEDs are the only effective protection against turtle drownings in
shrimp nets.8 The Appellate Body likewise found that it is a legitimate goal to protect highly
migratory species, such as sea turtles, rejecting the arguments that fish and wildlife do not come
within the natural resources exception and that the United States can only protect animals that
physically reside in its territory.9
Both panels found that the U.S. sea turtle protections are designed to conserve sea turtles since
shrimp fishing kills turtles and that TEDs are an effective conservation measure. 10 Some WTO
defenders have argued that this case stands for the proposition that countries may restrict trade to
protect endangered species, but the decision went on to highlight so many rules and pitfalls that it
is no wonder no environmental law has survived a WTO challenge.
To invoke the WTO natural resources exception, a country must demonstrate that its actions have
not been “unjustifiable,” “arbitrary” or a “disguised restriction on international trade.” 11 The
United States argued that it satisfied these conditions because its import bans on shrimp are for
the purpose of and linked to conserving turtles. In essence, the findings the panel had already
made should have been sufficient to allow the sea turtle protections to survive challenge. The
panel rejected this argument, ruling instead that each of these other requirements must also be
met.12
These additional tests are inherently subjective, putting the WTO in the position of deciding
whether the United States struck the right balance between sea turtle protection and trade.
According to the WTO, the United States went too far when it blocked trade because other
countries did not have the desired conservation policies in place: “Perhaps the most conspicuous
flaw in this measure’s application relates to its intended and actual coercive effect on the specific
policy decisions made by foreign governments.”13 More particularly, the United States required
other countries “to adopt essentially the same policy (together with an approved enforcement
program) as that applied to, and enforced on, United States domestic shrimp trawlers. . . .[I]t is
not acceptable, in international trade relations, for one WTO Member to use an economic
embargo to require other Members to adopt essentially the same comprehensive regulatory
program, to achieve a certain policy goal, as that in force within that Member’s territory, without
taking into consideration different conditions which may occur in the territories of those other
Members.”14
This was the heart of the Appellate Body’s ruling. While the decision faulted the United States
for not taking into account the circumstances in each country, neither the WTO nor any country
involved in the dispute identified anything other than TEDs that is effective in saving turtles from
drowning in shrimp nets. Nor did any country identify any “different conditions” in their
territories that would make TEDs unnecessary. Several of the challenging countries described
steps they had taken to protect nesting areas or fishing in areas where turtles do not swim. The
former is unrelated to shrimp fishing; the latter is exempt from the U.S. import restrictions.
Because there is no other effective safeguard for turtles from shrimp fishing, the WTO was not
presented with a situation in which the U.S. measure had been applied unfairly. It went out of its
way to find against the U.S. measure based on a hypothetical concern.
Next, the Appellate Body criticized the United States for not using a vessel-by-vessel basis for its
import restrictions, although the Appellate Body did not decide that such a system would pass
muster.15 Of course, a U.S. court has held that a vessel-by-vessel approach violates the U.S.
Endangered Species Act. As a practical matter, a vessel-by-vessel rule would be less effective at
protecting sea turtles since some vessels could fish without sea turtle protections and it would be
impossible to ensure compliance with such a rule. The WTO favors a weaker standard and one
that is illegal under U.S. law.
Finally, toward the end of its decision, the panel stated that the United States had acted in a
discriminatory fashion because it gave Asian countries only six months to comply with the law,
while Caribbean countries had three years.16 Of course, the reason for this different treatment was
the U.S. State Department’s illegal interpretation of the law to apply only in the Caribbean. A
court declared this interpretation illegal and ordered the law’s application worldwide within six
months. According to the Appellate Body, the fact that the State Department had to comply with
a court order did not relieve it of its duty to comply with the WTO.17
In any event, the Asian countries have now had more than three years to comply with the sea
turtle requirements. The passage of time has cured this WTO violation. Some WTO defenders
have tried to depict this timing problem as the heart of the sea turtle ruling. This is not the case. If
it were, the State Department would not be in the process of changing its regulations.18
But the United States has promised the WTO that it will change its regulations in early December
1999. While the United States has read the Appellate Body’s ruling to require rather technical
changes in its regulations, the Asian countries have expressed dissatisfaction with that
minimalistic approach. This dispute may be far from over.
The Pre-WTO Challenges to U.S. Dolphin Protections
The Tuna-Dolphin disputes were decided before the WTO came into existence and do not have
formal status as interpretations of the international trade rules. Nevertheless, the decisions in
these cases have been cited by WTO panels as establishing principles that still apply today.19
In parts of the Pacific Ocean, certain species of tuna travel in association with pods of dolphin.
One commonly-used method of catching tuna involves chasing the dolphins, encircling them with
large nets called “purse seines,” driving them to the center of the nets (often by using chase boats
or explosives) and closing the nets to trap the tuna. This method often harms or kills large
numbers of dolphins.
The U.S. Marine Mammal Protection Act attempted to address the harm to dolphins caused by
this practice. After placing restrictions on U.S. tuna fishers, the law prohibited the importation of
tuna caught with purse seines unless the exporting country had implemented a program to protect
dolphins, and had succeeded in reducing the incidental injury to dolphins to a degree
“comparable” to that of the U.S. tuna fleet.20 At various times, the United States had used these
provisions to ban tuna from The Congo, El Salvador, Peru, Senegal, the USSR and Spain.21 In
1990, environmental groups successfully sued to compel the U.S. government to enforce the
import ban requirement, leading to a ban on Mexican tuna because Mexico’s policies violated the
requirements of the U.S. law.22
Mexico filed a trade challenge to the ban, and a dispute panel found that the U.S. import
restrictions violated international trade rules. The heart of the Panel’s decision was its finding that
the U.S. ban violated the trade rules because it was based not on some characteristic of the
product imported (in this case, the tuna), but on the process by which the tuna was caught.23 A
basic trade requirement is that foreign products must be treated at least as favorably as “like
products” produced domestically.24 Because the panel had determined that tuna caught in ways
that harm dolphins is the same “product” as dolphin-safe tuna, banning tuna from Mexico while
permitting the sale of tuna from the United States violated this requirement.25 The panel also
determined that the U.S. ban violated the international prohibition on trade bans.26
The United States argued that even if its ban did violate these trade rules, the ban was permitted
by the recognized exceptions to those rules, which permit countries to restrict trade when
“necessary to protect human, animal or plant life or health,” or “related to the conservation of
exhaustible natural resources.”27 The panel rejected this argument for both exceptions. First, the
panel determined that the tuna ban was not “necessary” to the protection of dolphins. The term
“necessary” has been interpreted to require countries to use the least trade-restrictive method of
achieving their protective goal. In the panel’s view, the United States should have pursued less
trade-restrictive measures – such as attempting to negotiate a cooperative international agreement
– instead of imposing a ban.28
Finally, the panel determined that even if the exceptions might otherwise apply, they could not
apply to animals or other resources outside the territory of the country implementing the
protective measures.29 The tuna ban, aimed at protecting dolphins outside U.S. territory, thus was
not a legitimate exception to the trade rules.
In 1993, the European Union brought a second challenge to the tuna-dolphin law.30 The second
dispute panel agreed with the first tuna-dolphin panel that the methods by which tuna are caught
are not a legitimate basis for treating tuna from different countries differently.31
The second tuna-dolphin panel diverged from the first in concluding that a country can restrict
trade to protect exhaustible natural resources like dolphins outside its territory. 32 The panel
nevertheless found that countries cannot restrict trade to force other countries to change their
policies. In the panel’s view, such restrictions would seriously impair the operation of the
international trading system, “in particular, the right of access to markets.”33
Spurred by the trade panel decision, the United States, Mexico, and several other countries
adopted a program that allows tuna fishing methods that continue to harm dolphins, but provides
for observers on fishing vessels. Many environmental groups opposed this change because it
provided less protection for dolphins than the U.S. law required. Over the objections of these
groups, Congress amended the law to implement this new program, and the U.S. Commerce
Department has proposed new regulations that would allow tuna caught using harmful fishing
practices to come into the United States and to carry the dolphin-safe label as long as the tuna
comes from a country that requires observers.34
U.S. Clean Air Regulations
The 1990 Clean Air Act Amendments require the use of reformulated gasoline in areas out of
compliance with air quality standards in order to reduce toxic motor vehicle emissions. The
Environmental Protection Agency (EPA) issued a rule in December 1993 spelling out the
methods that refineries must use in calculating their compliance with the reformulated gasoline
requirements. The rule did not allow foreign refineries to use certain calculation methods because
EPA did not believe that the refineries had adequate data or that it could conduct sufficient
monitoring and enforcement abroad to ensure compliance. Through what it called gaming (or
manipulating) the system, EPA feared foreign refineries would send dirtier gasoline to the areas
where reformulated gasoline was required. In adopting the rule, EPA “determined that the rule
issued today is necessary to protect the quality of U.S. air and public health.”35
Venezuela and Brazil challenged the rule before the WTO. The United States reiterated the
obstacles it faced to ensuring compliance by foreign refineries and its air quality concerns. A
WTO panel and subsequently the WTO Appellate Body found the U.S. rule to violate the WTO
rules because it treated foreign refineries differently from domestic ones, without any concern for
the enforcement and air quality consequences of that ruling.36
To comply with the WTO decision, EPA changed its regulations to allow foreign refineries to use
all alternative methods of calculating their compliance with the gasoline requirements, provided
the refineries’ governments agree to subject the refineries to U.S. inspection and enforcement
authority.37 While this approach removes legal obstacles to U.S. inspections on foreign soil, it
forces EPA to devote its scarce enforcement budget to these costly monitoring activities, thereby
leaving other important environmental problems unaddressed.
Venezuelan gasoline has concentrations of olefins – a pollution-forming substance – that are three
times the level allowed under the initial EPA approach. The new rule will allow dirtier
Venezuelan gasoline into the northeastern United States, where it will worsen air pollution and
“be counterproductive to . . . efforts to achieve attainment” of air quality standards, according to
government pollution control regulators from the eastern states.38
In a U.S. court challenge to the new regulation, Earthjustice Legal Defense Fund argued on behalf
of environmental groups that EPA had to adopt the approach that would best promote clean air.
Rejecting this argument, the D.C. Circuit court held that EPA had the authority to consider other
factors and that U.S. statutes, like the Clean Air Act, must be construed “wherever possible . . . to
avoid an interpretation that would put a law of the United States into conflict with a treaty
obligation of the United States,” such as a decision of the WTO.39 This ruling effectively makes
WTO decisions part of U.S. law whenever an agency or court has any discretion in interpreting
that law.
European Ban on
Hormone-Treated Beef
For several decades, meat producers have routinely treated livestock with natural and synthetic
hormones to induce rapid growth. In 1995, 63 percent of all cattle in the United States and 90
percent of cattle raised in U.S. feedlots were treated with growth hormones.40
The International Agency for Research on Cancer has recognized extensive scientific evidence
demonstrating that exposure to hormones, including those used to promote growth in livestock,
causes cancer in laboratory animals and, in some cases, in humans. In addition, the same agency
has noted that exposure to hormones may magnify the effects of other carcinogens.41
In 1980, as a result of consumer concern over reports of harm, particularly in infants, caused by
eating hormone-treated meat,42 the European Union (EU) instituted a series of bans on the use of
growth hormones in meat production.43 Subsequently, the EU banned the import of meat from
animals treated with such hormones.44
In 1996, the United States and Canada challenged the European ban as a violation of the WTO
rules. The challenge was the first test of the WTO’s rules on food safety.45 Those rules discourage
countries from providing greater public health protection than the international status quo by
requiring them to base food safety measures on international standards, where they exist. Any
domestic law that provides greater protection against risks to health than afforded by a relevant
international standard must comply with a battery of tests in order not to be considered an unfair
trade barrier.46 Such measures must be based on scientific principles, current scientific evidence,
and a risk assessment, and may be applied only to the extent necessary to protect human health.47
The WTO dispute resolution panel found the European ban to violate the WTO food-safety
rules.48 The EU appealed the panel’s decision, and the Appellate Body affirmed the panel’s
conclusions. The Appellate Body’s ruling was based on its determination that there was not
sufficient evidence that the growth hormones would harm humans.49 In reaching this conclusion,
the Appellate Body downplayed scientific evidence of the carcinogenic effects of the hormones in
question.
The WTO was presented with substantial evidence demonstrating that exposure to each of the
hormones in question has been linked to cancer in laboratory animals.50 The Appellate Body
admitted that the studies “do indeed show the existence of a general risk of cancer.”51
Nevertheless, the Appellate Body did not consider this sufficient scientific support because the
studies did not focus on the “specific” potential for carcinogenic effects from residues of these
hormones in “meat derived from cattle to which hormones had been administered for growth
promotion purposes.”52
The EU had argued that its ban should be permitted as an application of the precautionary
principle. This principle embodies the admonition “better safe than sorry” by giving countries the
right to implement protective regulations where there is some scientific evidence of harm, even if
that evidence is in some way inconclusive.53 On this basis, the evidence presented by the EU
should have more than sufficed to justify its ban. However, the Appellate Body’s decision erects
huge obstacles to the use of the precautionary principle.54
First, by refusing to credit the evidence presented by the EU, the Appellate Body effectively
shifted the burden of proof regarding food safety measures. The Appellate Body refused to permit
the ban because the EU did not prove that the hormones were harmful. This approach is at odds
with a precautionary approach that would permit regulation of possibly harmful activities or
substances unless they are proven to be safe.
Second, the Appellate Body determined that a country cannot use evidence that a substance
causes cancer in animals – a scientific as well as common-sense basis for suspecting a risk in
humans – as a basis for banning it as a food additive in humans. The U.S. National Cancer
Institute has stated that “materials that cause cancer in one type of animal usually are found to
cause cancer in others. . . . For these and other reasons, we should expect animal carcinogens to
be capable of causing cancer in humans.”58 The U.S. Delaney Clause prohibits food additives that
cause cancer in animals.59 The zero-risk Delaney Clause standard is based on a policy decision in
the face of uncertainties about cancer risks from the consumption of carcinogens even in small
amounts. This and other precautionary health protective measures based on risks to humans
deduced from studies on laboratory animals are seriously jeopardized by the Appellate Body’s
decision.
Despite the Appellate Body’s determination that the European hormone ban violated the WTO
rules, the EU refused to rescind the ban. As a result, the WTO granted the United States
permission to impose $116.8 million in retaliatory trade sanctions each year that the EU
maintains its ban.60
Another WTO Obstacle to Preventing Harm
The WTO’s rules concerning food safety measures place an unrealistic emphasis on a WTO
panel’s judgment whether a country has regulated all similar risks consistently.55 In the hormonetreated beef case, the Appellate Body considered it an “unjustifiable” inconsistency for the EU to
treat growth hormones differently from a carcinogenic substance used as a medical treatment in
certain farm animals.56 In another case – this one concerning a Canadian challenge to an
Australian measure to protect fish from diseases that could be carried on imported salmon – the
Appellate Body concluded that the measure violated the WTO rules because Australia had
implemented protections against the entry and spread of diseases carried by salmon, but had not
implemented equivalent measures to protect against other fish-borne diseases. According to the
Appellate Body, this distinction was “arbitrary and unjustifiable” and the Australian measure was
therefore a “disguised restriction on international trade,” in violation of the WTO rules.57
The WTO’s strict emphasis on consistency with respect to all potentially risky activities or
substances is unrealistic. The WTO approach fails to recognize that societies place different
values on different activities or substances, even if they present similar levels of risk. It is also
politically unrealistic to require governments to address all risks at the same time and in the same
way.
The Asbestos Case
The carcinogenic effects of asbestos are well known.61 Many countries, including the United
States, have banned or severely restricted the use of asbestos.62 In 1997, on the basis of a study
indicating the likelihood of an increasing number of asbestos-related diseases and deaths in
coming years, France banned the import and sale of all types of asbestos and products containing
asbestos.63
Canada, the world leader in asbestos exports,64 has challenged the French ban at the WTO.65 That
challenge is still pending before the WTO’s dispute resolution panel. A decision is expected in
spring 2000, and a possible appeal could delay final resolution of the case until late in the year.
Canada’s primary argument is that the French ban violates the WTO requirement that measures
must not be “more trade-restrictive than necessary to fulfil a legitimate objective.”66 Canada
claims that a less trade-restrictive alternative was available to France, namely, to ban only the
most harmful type of asbestos and to require the “controlled use” – the wearing of protective
clothing and other safeguards – of other types.67 However, the French studies demonstrate that
such “controlled use” would leave large segments of the public unprotected – in particular
construction workers like carpenters and plumbers, untrained people who do repair work on their
homes, and others who are unlikely to know that the materials they work with contain asbestos. 68
In light of the French studies, Canada is essentially arguing that France (and any other
government) should be required to expose its population to some level of risk if avoiding that risk
completely would place too great a restriction on trade.
Canada also argued that the asbestos ban could not be considered the least-restrictive alternative
until France had determined that the substances that would replace asbestos posed no health risks
themselves.69 Canada thus took the position that a government cannot regulate a substance that
poses a known health risk until it has scientifically ruled out any hypothetical risks of potential
substitute substances.
Canada’s challenge is still pending at the WTO. If the WTO accepts Canada’s interpretation of
the trade rules, the ability of governments to regulate toxic substances and encourage the
development of non-toxic technologies could be severely restricted. The U.S. government
sometimes forces the development of safer technologies by banning those known to present a
health or environmental risk. For example, U.S. law prohibits the use of lead pipes in drinking
water systems, but does not specify an alternate pipe material, thus forcing manufacturers to
develop non-lead alternatives.70 Canada’s interpretation of the international trade rules would
remove the ability of governments to create such strong incentives for the development of nontoxic technologies by requiring them to prove the safety of all potential alternatives before
banning toxic substances.
Conclusion
The WTO’s mandate is to promote free trade and its rules are designed to achieve that goal.
These rules extend to health and environmental protections and generally treat those protections
as obstacles to trade that should be eliminated.
The WTO has made significant policy choices in establishing its rules and it continues to make
important value judgments in applying those rules in disputes. As the decided cases demonstrate,
the WTO has taken a stand against trade restrictions to curb the harmful effects of production,
against regulations that provide greater health or environmental protection than the international
status quo, and against the precautionary principle.
In strongly disfavoring the unilateral use of trade measures as a way to improve environmental
and health protections, the WTO eliminates a potentially useful tool for achieving these goals.
U.S. dolphin and sea turtle import bans have been the impetus for international negotiations to
address fishing practices that kill dolphins and turtles. Without the United States’ bold first steps,
those negotiations would probably not have happened.
The WTO has already staked out its position on some of the most controversial and important
trade and environment issues. It has codified rules that err on the side of trade at the expense of
environmental and health protection. It has made trade officials the arbiters of disputes and
shunned sharing decision-making power with health and environmental officials, experts and
nongovernmental organizations. These issues are far too critical to be left to an institution that
represents only one perspective and goal.
That is why the environmental community is calling for reform of both the WTO’s rules and the
process by which it makes its decision. At a minimum, the WTO should be reformed to protect:
3
The right to restrict trade to curb harmful environmental and health effects, including such
effects in the areas of logging, fishing, and manufacturing.
3
The right to use the precautionary principle to protect people and the environment against
risks.
3
The public right to access to information and to participate in proceedings that affect
domestic health and environmental standards.
The WTO should make these reforms before it further expands its influence in sensitive areas,
such as environment and health. Until these reforms are implemented there should be a
moratorium on WTO challenges to health and environmental protections.
Notes
Letter to J. Martin Wagner, Sierra Club Legal Defense Fund, from Jeffrey L. Gertler, Legal
Affairs Division, WTO (Feb. 7, 1997).
2
WTO Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp
Products, AB-1998-4, ¶¶ 89-91 (Oct. 12, 1998).
3
16 U.S.C. 1537.
4
Earth Island Institute v. Christopher, 942 F. Supp. 597 (CIT 1996).
5
Id.; Earth Island Institute v. Daley, No. 98-09-02818 (CIT, Apr. 2, 1999).
6
Article XI of the General Agreement on Tariffs and Trade (the GATT, which is one of the trade
agreements administered by the WTO) prohibits “quantitative” trade restrictions, which include import
bans.
7
GATT’s Article XX permits countries to take actions otherwise in violation of the trade rules if
they are “necessary to protect human, animal or plant life or health” (Art. XX(b)) or “relat[e] to the
conservation of exhaustible natural resources.”” (Art. XX(g).)
8
WTO Appellate Body Report (Shrimp), ¶ 25.
9
Id., ¶¶ 125-145.
10
Id., ¶ 140.
11
GATT’s Article XX exceptions only apply if the protective measure is “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.” GATT, Art. XX.
12
WTO Appellate Body Report (Shrimp), ¶¶ 148-149.
13
Id., ¶ 161.
14
Id., ¶¶ 164, 165 (italics in original).
15
Id., ¶ 165.
16
Id., ¶ 173.
17
See 64 Fed. Reg. 36,946 (July 8, 1999).
18
Id.
19
For example, the WTO Appellate Body cited the tuna-dolphin decision in support of its
conclusions in the shrimp-turtle case, described earlier in this report. See WTO Appellate Body Report
(Shrimp), ¶ 36.
20
16 U.S.C. §1350(a)(2)(B).
21
53 Fed. Reg. 8911 (Mar. 18, 1988); 53 Fed. Reg. 50420 (Dec. 15, 1988).
22
Earth Island Institute v. Mosbacher, 746 F. Supp. 964 (N.D. Calif. 1990), aff’d, 929 F.2d 1449 (9th
Cir. 1991).
23
GATT Panel Report, United States – Restrictions on Imports of Tuna, GATT Doc. DS21/R (Sept.
3, 1991) (Tuna I), ¶¶ 5.11, 5.14.
24
GATT, Art. III.4.
25
GATT Panel Report (Tuna I), ¶ 5.14.
26
Id., ¶ 5.18; GATT, Art. XI.
27
GATT, Art. XX(b), (g).
28
GATT Panel Report (Tuna I), ¶ 5.28.
29
Id., ¶ 5.33.
30
This challenge was based on the U.S. law’s attempt to prevent a circumvention of the primary tuna
ban by also banning tuna from countries that import tuna from countries subject to the direct ban. See 16
U.S.C. §1415.
31
GATT Panel Report, United States – Restrictions on Imports of Tuna (Tuna II), 33 I.L.M. 839
(1994), ¶¶ 5.8, 5.9.
32
Id., ¶¶ 5.14-5.20.
33
Id., ¶ 5.26.
34
Pub. L. No. 105-42.
1
59 Fed. Reg. 7716, 7787 (Feb. 16, 1994).
WTO Appellate Body Report, United States – Standards for Reformulated and Conventional
Gasoline, WT/DS2/AB/R (WTO Apr. 29, 1996).
37
62 Fed. Reg. 45,533 (Aug. 28, 1997).
38
Letter to EPA from Northeast States for Coordinated Air Use Management (Oct. 22, 1993); Letter
to EPA from Mid-Atlantic Regional Air Management Ass’n (Nov. 15, 1993).
39
George E. Warren Corp. v. EPA, 159 F.3d 616, 624 (D.C. Cir. 1998).
40
Beef Facts Index – Growth Promotants in Cattle Production (National Cattlemen’s Beef
Association, May 1995).
41
21 IARC Monographs 62-63 (1979).
42
Brie and Hormones, The Economist, Jan. 7, 1989 at 22.
43
European Council Directive 81/602/EEC, Art. 2, 1981 O.J. (L 222) 33.
44
European Council Directive 88/146/EEC 1988 O.J. (L 70).
45
The WTO’s Agreement on the Application of Sanitary and Phytosanitary Measures (SPS
Agreement) places a number of conditions on the right of governments to implement measures to protect
against risks to human and animal health arising out of substances in foods or beverages; risks to animals
and plants from the entry or spread of pests or diseases; risks to human health from diseases carried by
animals or plants; and damage from the entry or spread of pests. SPS Agreement, Annex A, Art. 1.
46
SPS Agreement, Art. 3.
47
Id. Arts. 2.2, 3.3, 5.1, 5.2, 5.5, 5.6.
48
WTO Panel Report, European Communities – Measures Concerning Meat and Meat Products
(Hormones) (WTO, Aug. 18, 1997).
49
WTO Appellate Body Report, European Communities – Measures Concerning Meat and Meat
Products (Hormones) (WTO, Jan. 16, 1998), ¶ 193.
50
See WTO Appellate Body Report (Hormones), ¶ 199. The International Agency for Research on
Cancer has concluded that exposure to each of the hormones banned by the EU is either a possible or
probable carcinogen in laboratory animals and that some are probable human carcinogens. See Comments
to the WTO Dispute Settlement Panel prepared by Earthjustice Legal Defense Fund on behalf of the Cancer
Prevention Coalition, Public Citizen and the Institute for Trade and Agricultural Policy, pp. 40-45 (Oct. 4,
1996).
51
WTO Appellate Body Report (Hormones), ¶ 200.
52
Id., ¶¶ 198-200.
53
For example, Principle 15 of the Rio Declaration on Environment and Development provides:
“Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used
as a reason for postponing cost-effective measures to prevent environmental degradation.”
54
The one place the WTO recognizes the precautionary principle is extremely limited. The SPS
Agreement’s Article 5.7 says that a country may adopt health measures on a provisional basis “where
relevant scientific evidence is insufficient,” as long as the country obtains supporting scientific evidence
“within a reasonable period of time.” However, this provision applies only to interim measures and does
not allow the precautionary principle to be used when additional information cannot be gathered or when
scientific uncertainty endures long after a risk has been identified.
55
SPS Agreement, Art. 5.5 (“[E]ach member shall avoid arbitrary or unjustifiable distinctions in the
levels [of protection] it considers to be appropriate in different situations, if such distinctions result in
discrimination or a disguised restriction on international trade.”).
56
WTO Appellate Body Report (Hormones), ¶¶ 225-235.
57
WTO Appellate Body Report, Australia – Measures Affecting Importation of Salmon (WTO, Oct.
20, 1998), ¶¶ 139-177.
58
Everything Doesn’t Cause Cancer (NIH Pub. No. 90-2039, March 1990).
59
21 U.S.C. § 376(b)(2)(B).
60
Decision by the Arbitrators, European Communities – Measures Concerning Meat and Meat
Products (Hormones), Recourse to Arbitration by the European Communities Under Article 22.6 of the
DSU, WT/DS26/ARB (July 12, 1999).
35
36
See, e.g., Environmental Health Criteria 203 – Chrysotile Asbestos, World Health Organization
International Programme on Chemical Safety at 144 (1998) (“Exposure to chrysotile asbestos poses
increased risks for asbestosis, lung cancer and mesothelioma in a dose-dependent manner.”).
62
See, e.g., 40 C.F.R. §§ 763.165-763.169 (banning several asbestos-containing products and all
new uses of asbestos).
63
Decree No. 96-1133, Dec. 24, 1996, Relating to the Ban on Asbestos.
64
Bridges, Weekly Trade News Digest, Vol. 2, No. 20 (June 1, 1998)
<http://www.ictsd.org/digests/digest2-20.txt>; Press Release, Natural Resources Canada and Foreign
Affairs and International Trade, “Government of Canada Stepping up Action to Fight French Asbestos Ban,
McLellan and Eggleton Say,” Oct. 8, 1996, <http://www.nrcan.gc.ca/css/imb/hqlib/96102.htm>.
65
First Written Submission of Canada, European Communities – Measures Concerning Asbestos
and Asbestos-Containing Products (Apr. 26, 1999).
66
Agreement on Technical Barriers to Trade (TBT Agreement), Art. 2.2.
67
First Written Submission of Canada (Asbestos), ¶¶ 230-37.
68
First Written Submission of the European Communities, European Communities – Measures
Concerning Asbestos and Asbestos-Containing Products (May 21, 1999), ¶¶ 21-22, 108-120.
69
First Written Submission of Canada (Asbestos), ¶¶ 213-17.
70
42 U.S.C. § 300g-6.
61
About the Authors
Martin Wagner, Director, International Program, Earthjustice Legal Defense Fund
Mr. Wagner directs Earthjustice’s International Program, which promotes the protection of the
environment and the human right to a clean and healthy environment through the application of
trade measures, international human rights and trade agreements, and U.S. law. He teaches
International Trade and the Environment at the Golden Gate University School of Law, and is
treasurer and attorney for AIDA — the Asociación Interamericana para la Defensa del Ambiente
— which collaborates with organizations throughout the Americas to develop and use
international citizen enforcement mechanisms to supplement domestic environmental protection
efforts. Mr. Wagner is a 1990 graduate of University of Virginia School of Law, where he was
Executive Editor of the Virginia Journal of International Law. Before coming to Earthjustice in
1996, he spent five years litigating environmental citizen suits, civil rights actions, and using
international mechanisms for the protection of human rights.
Patti Goldman, Managing Attorney,
Northwest office, Earthjustice Legal Defense Fund
Ms. Goldman is Managing Attorney of the Northwest office of Earthjustice Legal Defense Fund.
From 1985 to 1994 Ms. Goldman worked for Public Citizen Litigation Group, specializing in
trade and the environment and government accountability. She has been lead counsel in lawsuits
seeking environmental impact statements on trade agreements, including NAFTA and the WTO
Agreements, as well as lawsuits to obtain trade restrictions to force compliance with the United
Nations moratorium on high-seas driftnetting, to open U.S. trade policy development to public
scrutiny, and to ensure environmental representation on U.S. trade advisory committees.
Earthjustice Legal Defense Fund initiated the practice of nongovernmental organizations’ preparing
friend-of-the-court type submissions to WTO dispute settlement panels. Mr. Wagner and Ms. Goldman have
made such submissions concerning the European Union hormone-treated beef ban, U.S. sea turtle
protections, and reformulated gasoline standards under the U.S. Clean Air Act.