IPEN BRIEFING PAPER:
THE POPS CONVENTION & THE TRADE RULES
Prepared by Claudia Saladin, Center for International Environmental Law (USA), Morag Simpson, Council of
Canadians (Canada), and Mariann Lloyd-Smith, National Toxics Network (Australia)
This paper looks at issues in the POPs convention relating to potential conflicts between the POPs
Convention and the rules of the World Trade Organization (WTO). Concerns over this conflict
are evident in two places in the current draft of the POPs Convention


the nature of the obligations contained in article D; and
the inclusion of a “WTO Supremacy Clause” in article N bis of the draft Convention.
This brief is premised on the principle that POPs negotiators – who include public health,
environment and trade experts – are in the best position to determine the appropriate mix of
measures – trade and non-trade – for dealing with POPs. Moreover, it is premised on the belief
that POPs negotiators have an obligation to ensure that the best mix of available measures are
authorized by the POPs Convention to deal with the health hazards that exposure to POPs pose to
human and animal populations.

POPs negotiators have an obligation to ensure that the best mix of available measures
are authorized by the POPs Convention to deal with the health hazards that exposure to
POPs pose to human and animal populations
Trade measures have been an important part of many multilateral environmental agreements
(MEAs). While uncertainty about the relationship between MEAs and the WTO rules is used by
countries to chill the development of effective MEAs, the WTO rules themselves acknowledge
that countries may take measures to protect human, animal and plant life and health, even when
those measures might otherwise violate core obligations of the international trade rules.
Moreover, the WTO rules acknowledge the importance of internationally agreed environmental
standards. Trade measures in the POPs Convention should be considered international standards
within the meaning of the WTO rules and should be deemed necessary to protect human, animal
and plant life and health, as permitted in the WTO rules. For these reasons:


trade-related measures can and should be included in article D and
the WTO supremacy clause contained in article Nbis should be deleted.
TRADE MEASURES IN MULTILATERAL ENVIRONMENTAL AGREEMENTS

Multilateral environmental agreements (MEAs) are the preferred way to deal with
shared global environmental problems

Over 20 MEAs include trade measures as part of the toolkit of measures to address
global environmental threats

Uncertainty about the relationship between MEAs and the WTO trade rules is used by
some countries to “chill” the development of effective new MEAs
1
Multilateral environmental agreements (MEAs) are agreements between governments to
cooperatively address shared environmental problems, such as POPs. The international
community prefers multilateral approaches because measures taken multilaterally are thought to
be more likely motivated by a desire to solve the environmental problem at hand and less likely to
be motivated by protectionism. Moreover, multilateralism provides greater assurance that the
environmental problem being addressed has been acknowledged as a priority by a wide range of
countries. Finally, measures developed in an international negotiating forum are more likely to
be designed to equitably achieve environmental goals, taking into account the priorities and needs
of both developed and developing countries. Any trade-related measure in the POPs Convention
will be developed in a multilateral forum where many different countries – developing and
developed, producing and consuming, large and small, rich and poor – are represented.
Trade measures are now used in over 20 MEAs,1 including a number of the most important ones:




The Montreal Protocol on Ozone Depleting Substances includes trade measures both between
parties, and among parties and non-parties. These measures have contributed to the
Protocol’s effectiveness by encouraging compliance, increasing membership and preventing
increased production by non-parties. These trade measures, many of which could contravene
core WTO obligations, have enabled the Protocol to reverse the trend of erosion of
stratospheric ozone levels.
The Convention on International Trade in Endangered Species (CITES) uses trade measures
to reduce threats to endangered plant and animal species posed by the international trade in
such species.
The Basel Convention on the Transboundary Movement of Hazardous Waste uses trade
measures to address health and environmental threats posed by the transboundary movement
of hazardous wastes.
The Rotterdam Convention on Prior Informed Consent allows countries to refuse consent to
import certain chemicals and imposes labeling requirements on certain chemicals.
Despite the importance of trade measures in MEAs, uncertainty about their relationship to the
WTO rules remains. This uncertainty is used to “chill” the development of effective new MEAs
by countries that see weak MEAs as in their economic interest. These countries use uncertainty
about WTO rules during environmental negotiations to protect or promote their trade interests by
reducing the scope of MEAs and weakening their provisions. They also use this uncertainty to
argue for the insertion of “WTO supremacy clauses”, which are designed to subordinate MEA
rules to those of the WTO: an approach that both fails to adequately address the underlying
uncertainties, and that threatens to increase friction between the WTO and international
environmental law.
THE RELATIONSHIP BETWEEN THE WTO RULES AND TRADE MEASURES IN MEAS
The WTO rules are contained in a number of individual agreements which together comprise the
WTO Agreement. The most important of these agreements for the POPs Convention are:


the General Agreement on Tariffs and Trade (GATT), which establishes the core obligations
of the international trading system;
the Agreement on Sanitary and Phytosanitary Measures (SPS Agreement), which applies to
sanitary and phytosanitary measures (SPS measures), which are regulations aimed at
2
protecting human, animal and plant health from risks due to contaminants and toxins found in
food or feedstuffs; and
the Agreement on Technical Barriers to Trade (TBT Agreement), which applies to
regulations regarding product specifications, labeling, packaging and other “technical” issues.

The GATT contains three core obligations that are incorporated in some way in most of the
individual agreements comprising the WTO Agreement. These core obligations are:

The most favored nation (MFN) obligation prohibits a WTO Member State from treating the
products of one trading partner differently from those of another.
The national treatment obligation prohibits a WTO Member State from treating the products
of is trading partners differently from domestically produced goods.
The prohibition on quantitative restrictions requires WTO Members to remove non-tariff
restrictions on imports, such as bans, quotas, and licenses. Its aim is to limit import barriers as
much as possible to one kind of measure – tariffs – which can be progressively reduced.


In cases where a measure violates any of these core obligation, it will still be considered WTO
consistent if it qualifies for protection under the exceptions included in Article XX of the GATT,
which includes measures “necessary for the protection of human, animal or plant life or health”
(Article XX(b)). A country’s right to use these exceptions is qualified by introductory language
in Article XX (the chapeau), which provides that a measure must not be applied in a way that
constitutes “arbitrary or unjustifiable discrimination” between countries, or a disguised restriction
on international trade.

Trade measures that violate a core GATT obligation are still WTO consistent if they
meet the requirements of the GATT’s environmental exceptions
The relationship between the environmental exceptions and trade-related measures in MEAs is
not entirely clear. However, many countries and commentators have argued that trade measures
in MEAs should presumptively qualify for protection under the environmental exceptions to the
GATT.2
MEAs reflect a range of perspectives, including those of large and small, rich and poor, and
importing and exporting countries. Measures developed through such multilateral processes are
unlikely to be motivated by protectionist intentions and will be carefully crafted to meet the goals
of the MEA. The acceptance of an MEA by a wide range of parties also ensures that any traderelated measures the MEA authorizes will not impose burdens that developing countries cannot
meet or that are disproportionate to the measure’s environmental benefits. For these reasons the
trade community has become increasingly receptive to the notion that trade measures in MEAs,
such as the POPs Convention, should be presumed consistent with Article XX. While this
presumption is not reflected in any existing WTO cases, POPs negotiators should not let
uncertainty deter them from adding trade measures to the mix of measures in the Convention. The
decisions of GATT/WTO panels have indicated that while the WTO frowns upon unilateral
measures, it might view multilateral measures, such as those authorized by a future POPs
Convention, differently.3
Indeed, by including trade measures in the Convention and expressing the view that the WTO
will defer to their decision to authorize the use of these measures, the negotiators will assist in
3
further cementing WTO acceptance of the MEA-deference interpretation of Article XX. Many of
the countries negotiating the POPs Convention are also WTO Member States. Their expression
through the Convention of an expectation of such deference will signal to the WTO strong
Membership support for such an interpretation.

Trade Measures in MEAs should automatically qualify for the WTO exception that
measures that violate core obligations are WTO consistent if they are necessary to
protect human animal or plant life or health
The TBT and SPS Agreements promote harmonization of environmental measures by
encouraging Members to base their measures on international standards. For measures that are
governed by the TBT Agreement, those that are based on international standards are presumed
not to create “unnecessary obstacles to trade” under the TBT Agreement.4 Conversely, laws that
are not based on international standards do not qualify for this presumption. The SPS Agreement
specifies that measures that conform to international standards are deemed necessary to protect
human, animal or plant life or health and are presumed consistent with both the SPS Agreement
and the GATT.5 For measures that are governed by the SPS Agreement, those not based on
international standards must meet the risk assessment requirements imposed by the SPS
Agreement. Like other international standards, MEAs encourage the harmonization of
environmental measures, reducing trade tensions. MEAs should be considered “international
standards” for the purposes of the SPS and TBT Agreements and measures taken pursuant to
MEAs should be entitled to the presumption that they are consistent with those agreements. Such
an understanding would also encourage States to become parties to MEAs. Measures required or
authorized by an MEA, such as the POPs Convention, should be considered based on
international standards, although it is not clear that they will be.6

Trade-related measures in MEAs should be considered “international standards” under
the various WTO agreements and thus subject to deference from the WTO
WTO AND ENVIRONMENTAL DISPUTES

The WTO has a strong mechanism for challenging violations of the WTO rules

No MEA has ever been challenged in the WTO
When the WTO was created in 1995, the instrument that set the WTO apart from previous trade
pacts was the increased power of the dispute settlement procedure. Member states can file
complaints against trade practices of other Member states when it is felt that a Member is in
breach of one of the numerous Agreements that make up the complicated trade rules of the WTO.
The significant change from dispute settlement under previous trade agreements is that the new
WTO dispute settlement system allows the WTO Dispute Settlement Body (DSB) to impose
economic sanctions and penalties on Member states the DSB find to be in breach of any WTO
Agreement.
4
Since the advent of the WTO the DSB has published the results of five environmental disputes.
All of these challenges have resulted in a reversal of national environmental laws and policies in
Member states that have been challenged. Despite the fact that several multilateral environmental
agreements have directly banned or limited trade in hazardous substances, not one single
challenge has ever been lodged with the DSB regarding these MEAs. Experts widely believe that
this reflects a growing consensus among WTO Members that multilaterally negotiated and agreed
upon measures to deal with environmental issues should never be challenged at the WTO.
The DSB has been very clear about what it expects of WTO Members regarding multilateral
environmental measures. In a dispute against the US in 1998 (Shrimp-Turtle), the Appellate Body
first censured the US for its failure to engage in “serious across the board negotiations with the
objective of concluding bilateral or multilateral agreements for the protection and conservation of
sea turtles…7”. But the DSB urged Members to proceed with negotiations for multilateral
environmental agreements “…we have not decided that sovereign states should not act together
bilaterally, plurilaterally or multilaterally, either within the WTO or in other international fora, to
protect… the environment. Clearly, they should and do.8”
Nothing in the international trade rules or in the nature of the WTO prevents POPs negotiators
from including trade-related measures in the POPs Convention, if negotiators believe that traderelated measures are needed to achieve the goals of the POPs Convention. To take trade
measures off the table entirely is to allow the WTO rules – and the States that would use them to
promote national economic interests over internationally agreed policy – to hinder the
development of effective international policy to address POPs.
ARTICLE D SHOULD INCLUDE TRADE-RELATED MEASURES

WTO rules explicitly acknowledge that countries may take measures to protect
human, animal and plant life and health and to conserve exhaustible natural
resources, even when those measures might otherwise violate WTO rules,

WTO rules acknowledge the importance of internationally arrived at
environmental standards.
POPs negotiators may wish to use trade-related measures as part of a mix of tools to achieve the
goals of the POPs Convention. Trade-related measures can provide important strength to the
POPs Convention when combined with incentives such as financial and technical assistance and
may be necessary to promote the goals of the POPs Convention. The goal of POPs elimination,
for example, will be undermined if export of POPs is permitted to countries not party to the POPs
Convention, because the exported POPs will not be subject to the restrictions and phase-out
obligations in the Convention.
When trade-related measures are agreed to through a multilateral process, countries should not be
allowed to turn to the WTO to undo the multilateral consensus. The WTO rules themselves
explicitly acknowledge that countries may take measures to protect human, animal and plant life
and health and to conserve exhaustible natural resources, even when those measures might
otherwise violate WTO rules,9 and acknowledge the importance of internationally arrived at
environmental standards.10 No multilateral environmental agreement (MEA) has ever been
5
directly challenged in the WTO, and experts widely believe that this is because any measure
authorized under such an agreement would be presumed to be presumed WTO-consistent. POPs
negotiators must be free to determine the best set of policy measures to achieve the goals of the
POPs Convention – whether trade-related or not – unhindered by concerns that some states may
use the WTO to second guess those measures.
Article D.1: Prohibition of the Production and Use of certain POPs
D. Measures to reduce or eliminate releases
Prohibition of the production and use of certain persistent organic pollutants
1. [Subject to the accessibility of financial and technical assistance,] each Party shall
[prohibit] [prohibit [and] [or] take [other] [the] legal measures necessary to eliminate]
[take the legal measures necessary to eliminate], the production[, import, export] and
use of the chemicals listed in Annex A (Elimination), in accordance with the provisions in
that Annex.
[1 bis. Each Party shall ensure that chemicals listed in Annex A, once their production
and use have been banned, shall not be exported or imported except for the purpose of
environmentally sound [destruction] [or] [disposal].]

Prohibiting the import and export of POPs once their production and use is prohibited
does not violate core GATT obligations and is crucial to achieving the goals of the POPs
Convention
Neither unbracketing the words “export, import” in D.1 nor the text in D.1 bis poses trade
problems. Once domestic production and use of a substance are banned, no fatal issues of GATT
inconsistency arise. An unqualified import and export ban of an illegal hazardous substances is
protected by the environmental exception in GATT. Thus, once a country bans domestic
production and use of a substance, it can ban imports and exports without violating the trade
rules.
The case of substances that are granted a limited exemption in Annex A is slightly more
complicated, but still does not raise significant trade issues. The trade issues surrounding
substances with a specific exemption in Annex A are the same as for those substances subject to
the restricted use obligation in Article D.2 (listed in Annex B). Therefore, these issues are
discussed together in the next section.
Article D.2: Restrictions on the production and use of certain POPs
D. Measures to reduce or eliminate releases
Restrictions on the production and use of certain persistent organic pollutants
2. [Subject to the accessibility of financial and technical assistance,] each Party shall
[prohibit] [prohibit [and] [or] take [other] [the] legal measures necessary to eliminate]
[take the legal measures necessary to eliminate] the [production] [or] [and] use of the
6
chemicals listed in Annex B, (Restriction), except for the purposes specified therein, in
accordance with the provisions in that Annex. Imports and exports of the chemicals
listed in Annex B shall only be permitted between Parties and only for the purposes listed
in Annex B or for their environmentally sound destruction.

Restricting production and trade of restricted use chemicals under the POPs agreement
is necessary to protect public health and the environment from the threat of POPs and
is therefore justified under the environmental exceptions to the GATT
In order to meet certain public health emergencies and other uses as provided for in Annex B,
some countries have indicated that continued limited production of Annex B POPs may be
required while alternatives are investigated. Not all of the countries that have in the past required
access to Annex B POPs have either production capacity or stockpiles of the POP in question.
Inevitably some limited trade in these substances will occur. The question is how far this trade
can be limited to comply with the intent and the spirit of the POPs Convention without violating
WTO/GATT provisions.11
Limiting trade in these substances only to parties to the POPs Convention violates the WTO Most
Favored Nation (MFN) obligation. In the final analysis, however, such measures would likely be
WTO consistent because they would qualify for protection under the GATT environmental
exception for protection of life or health of humans, plants or animals (Article XX(b)).
To qualify for this environmental exception, first the measure must be “necessary” to protect the
life or health of humans, plants or animals. In the case of the POPs Convention, the international
community has determined through a multi-year, multilateral process that an international
solution to the problems posed by POPs is necessary. Countries are in the midst of negotiating
rules for a multilateral Convention that may include trade-related measures. These trade measures
will be an integral part of an overall design that the countries will have identified as necessary to
protect human, animal and plant life and health and should easily pass WTO scrutiny.
Consider, for example, the country using and producing an Annex B substance that bans imports
of that substance from non-parties as provided in a future POPs Convention. Allowing trade in
such substances only among parties will greatly enhance the parties’ ability to limit the use of
these substances to those uses listed in Annex B. Because trade will only be permitted between
parties, any substances that are produced or traded by the parties will be subject to the obligations
in, and oversight mechanisms of, the POPs Convention. Such trade restrictions will better
prevent the uncontrolled spread of POPs and enable more rapid and effective enforcement in
cases of a breach of the obligations. Allowing trade only between parties will also create an
incentive for some countries to join the Convention, particularly those that need assured access to
Annex B chemicals for permitted uses. The more countries that join the Convention, the more
these chemicals will be subject to the oversight of a multilateral system designed to minimize the
dangers associated with their production and use, to provide assistance in obtaining less
dangerous alternatives, and ultimately to eliminate these substances. If the POPs negotiators
include such trade measures in the Convention, it will be for all these reasons, and probably more.
Thus, the trade-related measures in the POPs Convention should be considered “necessary”
within the meaning of the environmental exception.
7
The second step in qualifying for the environmental exceptions is that the measure must not be
applied in a manner that constitutes either arbitrary or unjustifiable discrimination or a disguised
restriction on international trade. As with the determination of “necessary,” the multilateral
nature of the measure should lead to the presumption that the measure is neither arbitrarily nor
unjustifiably discriminatory nor a disguised restriction on international trade. A multilaterally
agreed-upon trade-related environmental measure, for the reasons discussed above, is not likely to
be arbitrary or unjustifiable in its discrimination or to be designed to serve a hidden trade agenda.
To the contrary, the measure will have been scrutinized by countries with varied interests and
concerns. These countries will have designed the measure as necessary to achieve the goals of
the agreement.

Trade measures should be an integral part of an overall design participating
countries have identified as necessary to protect human, animal and plant life and
health and should pass WTO scrutiny.
Article D.3: Measures dealing with POPs by-products
Reduction in the release of persistent organic pollutants that are by-products [with the
aim of their elimination]
3. Each Party shall [aim] [take all necessary measures] to reduce its [total] release
[derived from anthropogenic sources] of each of the persistent organic pollutants that
are by-products that are listed in Annex C [with the aim of their continuing minimisation
and ultimate elimination] [consistent with its capacity and subject to the availability of
technical and financial assistance]. To this end, each Party shall:
(a) Promote the application of available measures that can expeditiously achieve a
realistic and meaningful level of release reduction and/or source elimination by
means that are feasible and practical. Such available measures may include, but are
not limited to, incentive schemes such as:
(i) labelling of products whose production created the by-products listed in Annex C ,
or whose production utilises clean production methods designed to reduce or
eliminate POPs; or
(ii) creation of public purchasing preferences for products whose production does
not result in the formation of POPs, or which are not precursors to POPs

Trade-related measures – such as labeling measures – authorized by an international
agreement should be considered international standards within the meaning of the TBT
and SPS Agreements
The question of trade-related measures is most likely to arise in article D.3 in conjunction with
national measures to implement the POPs Convention – for example, purchasing preferences or
labeling schemes for products made in a way that does not produce dioxins, or products whose
disposal will not lead to dioxin formation. These measures should be encouraged by the POPs
negotiators by protecting them from attack at the WTO. The POPs negotiators can shield these
8
measures from the WTO by explicitly authorizing their use in the Convention so these measures
will receive the same deference as other multilaterally agreed-upon trade-related environmental
measures.

Trade-related environmental measures authorized by MEAs should be presumed
consistent with one or more of GATT’s environmental exceptions
Such trade-related measures will receive the greatest deference in a dispute with the trade rules if
they are explicitly required or authorized by the POPs Convention. These measures, arrived at
through a multilateral process, are more likely to be equitably directed at the goal of POPs
elimination than measures that a state unilaterally determines are necessary to achieve the goals
of the POPs Convention.
THE WTO SUPREMACY CLAUSE SHOULD BE REMOVED FROM THE POPS CONVENTION
[N bis. Relationship with other agreements
The provisions of this Convention shall not affect the rights and obligations of any Party
deriving from any existing international agreements.]

Supremacy clauses are not an appropriate tool to resolve the uncertainty regarding the
relationship between trade measures in MEAs and the WTO rules
To address the potential conflict with WTO rules – and resolve them in favor of trade concerns –
some countries are supporting inclusion of a “WTO supremacy clause” (savings clause) in Article
N bis of the POPs Agreement. The use of supremacy clauses in MEAs is a relatively recent
development and is now regularly promoted by countries that wish to preserve their right to
challenge trade measures taken to implement MEAs at the WTO.
Supremacy clauses are not an appropriate tool to resolve the uncertainty regarding the
relationship between trade measures in MEAs and the WTO rules. First, they fail to achieve the
goal of reducing uncertainty. Simply affirming the integrity of existing international law does not
address the numerous and complex questions about how MEAs and the WTO rules relate in
specific instances. Such questions are better addressed by negotiators in the POPs negotiations
process – where trade, environmental and public health expertise are all represented – than in a
WTO dispute settlement proceeding.
Second, supremacy clauses may deny MEAs equal status with WTO rules. The precise legal
impact of the WTO supremacy clause will depend on future interpretations of MEAs and WTO
rules. However, the aim of supremacy clause proponents is to place the rules of the multilateral
trading system above those of the POPs Convention. Most dangerously, the inclusion of a
supremacy clause in the POPs Convention might call into question the presumption that the
WTO’s environmental exceptions apply to measures developed through MEAs, as discussed
above. Simply by calling this presumption into question, supremacy clauses, and the countries
that promote them, do great harm to the growing, yet still fragile, consensus at the WTO to ensure
that trade rules are interpreted in a manner that accommodates environmental mandates
developed through open, multilateral processes. Such clauses could persuade a WTO dispute
9
settlement panel to reject arguments to establish a presumption protecting trade-related measures
in MEAs. A supremacy clause could also reverse the tacit position of many WTO Members that
MEAs should never be challenged by the WTO.
Some recently concluded MEAs12 have resolved the thorny political problem of inserting a WTO
supremacy clause in the Articles of Agreement, by inserting language in the preamble that
explicitly acknowledges a “non-hierarchy” in internationally agreed treaties. We would argue that
enshrining this language in the preamble undermines the notion that MEAs are equal in status to
the WTO rules and thus establish international standards within the meaning of the SPS and TBT
Agreements and should automatically qualify for the exceptions in Article XX of the GATT.
Such a compromise arguably still leaves MEAs open to challenge at the WTO – especially by
WTO members who chose not to join the POPs Convention.
Third, supremacy clauses may limit the effective implementation and enforcement of an MEA.
The chilling effect of such a savings clause strenthens the hand of countries that prefer weak
implementation of the POPs agreement.
Finally, where conflicts arise between international trade agreements and MEAs, existing rules of
treaty interpretation are available to resolve those conflicts. International law allows States to
negotiate treaties that alter obligations under prior treaties or provide for more specific
obligations. Under the rules of international law, where there is a conflict between two treaties,
the later in time will prevail. Moreover, international law interprets conflict of law very
narrowly. Where a subsequent treaty, such as the POPs Convention, addresses a specific problem
that was not considered by the prior treaty (POPs for example were not considered in drafting the
international trade agreements), the more specific agreement will apply. Thus POPs negotiators
need not shy away from employing trade-related environmental measures where they deem such
measures to be important to achieving the goals of the POPs Convention.
CONCLUSION
POPs negotiators and activists must defend the right to include trade measures in the POPs
Convention. POPs negotiators and activists must ensure that these trade measures are not
vulnerable to WTO attack after their adoption. Two important steps can be taken to protect the
POPs Convention from challenge in the WTO. First, POPs negotiators should ensure that the
POPs Convention does not contain a WTO supremacy clause, as is currently proposed in article N
bis of the draft POPs Convention. Second, negotiators should explicitly and carefully review all
trade measures suggested for inclusion in the POPs Convention. At a minimum the review
process should consider less trade-restrictive alternatives and demonstrate their flaws in attaining
the goals of the POPs Convention.
1
See UNEP, Trade related environmental measures in the field of safety in biotechnology, Environment
and Trade Monograph No. 14 (1997); for a more in depth discussion of the relationship between trade
measures in MEAs and the trade rules, see CIEL, Trade Measures and Multilateral Environmental
Agreement: Resolving Uncertainty and Removing the WTO Chill Factor (WWF International Discussion
Paper, November 1999); for a more in depth discusion of this argument see Saladin & Van Dyke,
International Trading Rules and the POPs Convention (CIEL Issue Brief, November 1999)
2
See, e.g., Robert Housman & Donald M. Goldberg, Legal Principles in Resolving Conflicts Between
Multilateral Environmental Agreements and the GATT/WTO, in ENVIRONMENT AND TRADE 10: THE USE OF
TRADE MEASURES IN SELECTED MULTILATERAL ENVIRONMENTAL AGREEMENTS 297 (CIEL & UNEP:
Washington, D.C. 1995).
10
3
A challenge to a US sea turtle protection law prevailed in a dispute before the WTO, in part because the
United States had failed to exhaust multilateral options in its efforts to protect sea turtles, before imposing a
unilateral protection strategy. United States – Import Prohibition of Certain Shrimp and Shrimp Products,
WT/DS58/AB/R [hereinafter Shrimp-Turtle].
4
Agreement on Technical Barriers to Trade, art. 2.5, April 15, 1994 [hereinafter TBT Agreement],
available at URL: <http://www.wto.org/wto/legal/finalact.htm>.
5
See Agreement on the Application of Sanitary and Phytosanitary Measures, art. 3.3, April 15, 1994
[hereinafter SPS Agreement], available at URL: <http://sss.wto.org/goods/spsagr.htm>.
6
For a more detailed discussion of this argument see Saladin & Van Dyke, supra note 1.
7
Shrimp-Turtle supra note 3, at 166.
8
See Shrimp-Turtle supra note 3, at 185.
9
See General Agreement on Tariffs and Trade (GATT), art. XX(b) & (g), Oct. 30, 1947, available at URL:
<http://www.wto.org/wto/legal/finalact.htm>.
10
See, e.g., SPS Agreement art. 3.3, TBT Agreement art. 2.2.
11
Other MEAs that include trade prohibitions and restrictions include, for example, the Montreal Protocol,
The Bamako Convention and the Basle Convention.
12
See Convention On The Prior Informed Consent Procedure for Certain Hazardous Chemicals and
Pesticides In International Trade (1998), and Cartagena Protocol On Biosafety (2000).
11