This is a working draft. Please do not cite without permission of the author.
Comments gratefully received.
The Use of the Precautionary Principle in WTO Law and EC Law
Ilona Cheyne
Newcastle Law School
(Ilona.Cheyne@ncl.ac.uk)
INTRODUCTION
The precautionary principle is one of the great puzzles of international law. It is
designed to promote environmental protection by excluding scientific uncertainty as a
justification for delaying action in the face of potentially serious threats to the
environment. It is the subject of voluminous literature, which ranges across the
spectrum from those that argue that it imposes a positive obligation to act as soon as a
plausible threat is identified to those that maintain that it is not a legal principle at all
but only a policy guideline to be taken into account along with many other policy
factors.1 In between is a growing understanding of how the principle might have legal
effect, and an impressive number of international instruments containing or
implementing the principle including the EC Treaty. In addition, the power of the
precautionary principle is such that it has proven impossible to ignore even by
institutions that do not explicitly recognise it, such as the WTO.2 At first glance, the
positions of the WTO and the EC seem very different but there appears to be an
interesting degree of convergence between their approaches in practice. The purpose
of this paper is to consider how that convergence could have come about
notwithstanding the very different starting points in each regime, and to consider the
implications for the future.
THE PRECAUTIONARY PRINCIPLE AND FREE TRADE
The most well-known example of the precautionary principle in its general form is
that contained in Principle 19 of the Rio Declaration which states,
1
General works include Arie Trouwborst, Evolution and Status of the Precautionary Principle on
International Law (New York: Kluwer Law International, 2002); Poul Harremoës (ed.) The
Precautionary Principle in the 20th century : late lessons from early warnings (London: Earthscan
Publications, 2002); Tim O'Riordan, James Cameron & Andrew Jordan (eds), Reinterpreting the
Precautionary Principle (London: Cameron May, 2001); Ronnie Harding, Elizabeth Fisher (eds),
Perspectives on the Precautionary Principle (Annandale, N.S.W.: Federation Press, 1999); Timothy
O'Riordan and Andrew Jordan, The Precautionary Principle, Science, Politics and Ethics (Norwich:
Centre for Social and Economic Research on the Global Environment, 1995); David Freestone and
Ellen Hey, The Precautionary Principle and International Law: the challenge of implementation
(Boston: Kluwer Law International, 1995); Harald Hohmann, Precautionary Legal Duties and
Principles of Modern International Environmental Law (London; Graham & Trotman/Martinus Nijhoff
1994); Tim O'Riordan and James Cameron (eds), Interpreting the Precautionary Principle (London:
Earthscan Publications Ltd., 1994)
2
The WTO Agreement was concluded in 1994 and came into force at the beginning of 1995. It
comprises a large number of agreements of which the most relevant for this paper are GATT 1994 and
the Sanitary and Phytosanitary Agreement. GATT 1994 is so called to differentiate it from the original
GATT, now referred to as GATT 1947, but the two versions are to all intents and purposes the same.
Every Member of the WTO is bound by all the agreements contained in the WTO Agreement with a
limited number of exceptions which are not relevant to the discussion in this paper.
This is a working draft. Please do not cite without permission of the author.
Comments gratefully received.
2
In order to protect the environment, the precautionary approach
shall be widely applied by States according to their capabilities.
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.
It has been restated in many different ways, but in international instruments at least it
has rarely strayed far from the path laid down in the Rio Declaration.3
Despite the ambiguity of its wording and the difficulty of precisely ascertaining its
legal implications, it is clear that that the precautionary principle has been frequently
used and with practical and normative effect. It is a cornerstone of the sustainable
development approach and its importance in environmental law and policy is
undoubted. However, its influence in the area of trade law is particularly interesting.
The principle is intended to bridge the regulatory gap between economic
development, social justice and environmental protection. In the context of trade law,
it is subject to the trade liberalisation rules contained in the WTO Agreement and, in
the European context, the law of the European Community. These rules are strikingly
similar. For example, Article 28 (ex 30) of the EC Treaty prohibits quantitative
restrictions on imports and all measures having equivalent effect. This has been
defined all-inclusively by the Court of Justice as “all trading rules enacted by member
states which are capable of hindering, directly or indirectly, actually or potentially,
intra-community trade” between Member States.4 The same sort of prohibition against
discrimination is contained in Articles XI, I and III of the GATT. Article XI is a
blanket prohibition of quantitative restrictions on imports and exports. Article I is the
most-favoured-nation clause which prohibits discrimination between like products
from different importing countries. Article III is a more complex provision which
prohibits discrimination between imported and domestically produced like products.
Article III:4, which is of most relevance to the present discussion, provides that
imported products must not be given less favourable treatment than like domestic
products once they are in the domestic market.5 Both systems provide for general
exceptions, including the protection of human, animal or plant life or health.6 Article
XX(g) of the GATT 1994 also permits measures relating to conservation of
exhaustible natural resources. Both systems have a requirement that any measure
3
The most common reason for alteration is where it is being implemented in a specific context, for
example, in Article 3(2) of the Convention on the Protection of the Marine Environment of the Baltic
Sea Area, 1992:
“The Contracting Parties shall apply the precautionary principle, i.e., to take preventive measures when
there is reason to assume that substances or energy introduced, directly or indirectly, into the marine
environment may create hazards to human health, harm living resources and marine ecosystems,
damage amenities or interfere with other legitimate.”
4
Case 8-74, Procureur du Roi v Benoit and Gustave Dassonville [1974] ECR 837, para. 5.
5
The full text of Article III:4 reads:
“The products of the territory of any contracting party imported into the territory of any other
contracting party shall be accorded treatment no less favourable than that accorded to like products of
national origin in respect of all laws, regulations and requirements affecting their internal sale, offering
for sale, purchase, transportation, distribution or use. The provisions of this paragraph shall not prevent
the application of differential internal transportation charges which are based exclusively on the
economic operation of the means of transport and not on the nationality of the product.”
6
EC Treaty, Article 30 (ex36) which allows measures that are “justified”; GATT 1994, Article XX(b)
which allows measures that are “necessary”.
This is a working draft. Please do not cite without permission of the author.
Comments gratefully received.
3
which otherwise falls within one of the given exceptions must not constitute arbitrary
or unjustifiable discrimination.7
Disputes about quantitative restrictions such as import bans are relatively simple in
legal terms and rarely give rise to analysis even in contested disputes. By contrast,
analytical problems often arise where discrimination is claimed between “like
products” since there are many reasons why a State might wish to differentiate
between products which are otherwise similar, such as concern for the environment.
Both WTO and EC tribunals have had to deal with the fact that there may be
legitimate reasons for restrictions on particular types of goods or that it is appropriate
to discriminate between products which for commercial purposes appear to be the
same. Concern about balancing trade liberalisation rules and environmental protection
has therefore been a common feature of the WTO and EC regimes.
In the case of the WTO, the alarm was first raised by the two famous Tuna Dolphin
reports decided by panels under the GATT 1947 system.8 Despite the fact that they
were not adopted and therefore had no formal effect, the reports were released to the
public to be met by sustained and vitriolic criticism from environmental groups and
commentators. This ‘wake-up call’ for environmentalists came too late to have much
influence on the Uruguay Round negotiations and the WTO Agreement reflects very
little explicit recognition of the need to give weight to environmental values or
interests beyond that already contained in the GATT 1947.9 In contrast, similar
concerns in the EC led to the Court of Justice developing the “rule of reason” which
allows Member States to introduce restrictions to protect essential interests, provided
they are not applied in a discriminatory manner and there is no exhaustive
Community harmonisation measure already in place.10 Eventually an explicit
environmental policy was introduced into the EC Treaty and the precautionary
principle introduced.11 Regardless of their different starting points, however, both
7
EC Treaty, Article 30; GATT 1994, Article XX chapeau.
US - Restrictions on the Import of Tuna, BISD 39S/155; US - Restrictions on the Import of Tuna,
BISD 39S/155.
9
The same cannot be said of the North American Free Trade Agreement (NAFTA) 1992 which was
significantly influenced by environmental lobbying to ensure that environmental interests were not
ignored. The result includes Article 104 which allows other specified treaties to prevail over NAFTA
provisions, including the Convention on International Trade in Endangered Species of Wild Fauna and
Flora (CITES), the Montreal Protocol on Substances that Deplete the Ozone Layer, and the Basel
Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal. An
environmental side agreement was later signed, the North American Agreement on Environmental
Cooperation (NAAEC), which came into force on January 1, 1994.
10
Case 120/78, Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein (the Cassis de Dijon
case) [1979] ECR 649. Environmental protection was found to be one of the Community’s “essential
objectives” and could justify national measures under the rule of reason in Case 240/83 ADBHU
[1985] ECR 531. It was also held to be a mandatory requirement in Case 302/86, Commission v
Denmark (Danish Bottles case) [1989] 1 CMLR 619.
11
The Single European Act of 1986 introduced a new title relating to the protection of the
environment; a “policy in the sphere of the environment” was introduced as a key activity of the
Community and the precautionary principle into what is now Article 174(2) by the Maastricht Treaty in
1992. The full text of Article 174(2), first paragraph, reads:
“Community policy on the environment shall aim at a high level of protection taking into account the
diversity of situations in the various regions of the Community. It shall be based on the precautionary
principle and on the principles that preventive action should be taken, that environmental damage
should as a priority be rectified at source and that the polluter should pay.”
8
This is a working draft. Please do not cite without permission of the author.
Comments gratefully received.
4
WTO and EC formal dispute settlement decisions have proved to be crucial in
determining the balance between the trade liberalisation rules and unilateral attempts
to protect the environment.
THE USE OF THE PRECAUTIONARY PRINCIPLE IN EC LAW
(i) the meaning of the precautionary principle in EC law
It has already been noted that the EC Treaty explicitly includes the precautionary
principle as part of its environmental policy. The Court of Justice therefore has little
trouble in establishing why it should apply the principle, and need only seek to
explain how it is applying it. It has offered some guidance on the circumstances in
which the precautionary principle may apply. The threshold of risk that is required
before action can be justified must not be a “purely hypothetical” risk, nor may it be
founded on “mere suppositions not yet scientifically verified”.12 It must be
“adequately backed up by the scientific data available at the time”.13 Provided that
this sort of level of objectivity can be shown with regard to potential risk, however, it
is not necessary to wait “until the reality and seriousness of those risks become fully
apparent”.14
The Court of First Instance (CFI) has gone on to elaborate its view as to the
appropriate application of the principle. It has stated that there are two stages that
must be fulfilled. First, the Community institution must choose the level of protection
it considers acceptable, in the light not just of scientific evidence but other social,
political or other factors.15 In other words, it is a political decision which must be
decided according to the circumstances of each individual situation and in the context
of the Community’s needs and interests. This discretion to choose lies at the heart of
the question of how the precautionary principle is to work. The limits of the discretion
give us the boundaries of judicial review, the shift from political choices to legally
enforceable standards. The Court has given very little guidance on this point,
however, and as far as Community institutions are concerned, judicial review is
limited to procedural and administrative guarantees.16 It has said that the risk must not
be hypothetical, that the level of protection chosen as acceptable must not be based on
a desire for zero risk and that, although the level of protection must be high under the
EC Treaty, it does not have to be highest technically possible.17 However, this
discretionary power has also been limited by later findings that the combination of the
precautionary principle, the high level of protection required, and the integration of
12
Case 236/01, Monsanto [2003] ECR I-08105, para. 106; Case E-3/00, EFTA Surveillance Authority
v Norway EFTA Court Reports 2000-20001, p. 73, paras. 36-38.
13
Case T-13/99, Pfizer v Council [2002] ECR II-03305.
14
Joined Cases T-74/00 etc., Artegodan [2002] ECR II-4945, para. 185, and Pfizer, n.13 above, para.
139. See previously Case C-180/96 United Kingdom v Commission [1998] ECR I-2265, para. 99, (the
BSE judgment), Case T-199/96 Bergaderm and Goupil v Commission [1998] ECR II-2805, para. 66.
15
Pfizer, n.13 above, paras. 151-153.
16
In cases where Community institutions enjoy a broad discretion with regard to objectives and
methods, judicial review is limited to examining whether there has been has been “manifest error or a
misuse of powers” or that the Community institutions have “clearly exceeded the bounds of their
discretion”. In addition, where Community institutions are “required to make complex assessments”
judicial review must be limited. See Pfizer, paras. 166-169.
17
Para. 152, citing Case C-284/95, Safety Hi-Tech 1998 ECR I-4301, para. 49.
This is a working draft. Please do not cite without permission of the author.
Comments gratefully received.
5
that high level of protection into other policies requires that the protection of human
health takes precedence over economic interests.18
The second stage identified by the CFI is the risk assessment that must be made by the
Community institution before it decides what measures are necessary in order to
achieve the level of protection it has chosen. Here the objective is to find out as much
as is possible about the hazard, the exposure to that hazard, and the kind of risk it
poses to human health.19 This stage partly overlaps the first, in that the identification
of the threshold of risk that triggers the precautionary principle must be based on
scientific evidence even if it is incomplete, but it also adds another layer which is that
the measure chosen must be proportionate to the risk.20 The Court has described this
requirement by saying that the measure must be necessary, proportional to the
objective pursued, and the least trade-restrictive measure available.21 In other words,
it must be possible to show not only that the risk is a real one even if uncertain but
also that the response has a rational relationship to that risk and interferes as little as
possible with the operation of other values and interests such as free movement of
goods.
The two-stage analysis described above has also been applied to the acts of Member
States. They may exercise their own discretion subject to the condition that the level
of protection chosen cannot be based on a purely hypothetical risk.22 The choice of
measure is also subject to the need to perform a risk assessment and to ensure that the
measure chosen is proportionate to the level of protection being pursued.23 However,
there may be another barrier to be crossed. The right to choose individual levels of
protection may be excluded by exhaustive Community harmonisation in the field.24 In
such a case, the level of protection would have been decided as a Community matter
and the right of Member States to set different standards would be extinguished by the
18
Artegodan, n.14 above, paras. 183-184.
Paras. 154-156. Shortly after Pfizer, the Court was asked to rule on the validity of the Community’s
test for the release of foodstuffs containing transgenic proteins under the Regulation 258/97 on novel
foods and novel food ingredients, OJ 1997 L 43/1 as amended by EC Regulation 1829/2003 on
genetically modified food and feed, OJ 2003 L 268/1, which replaces the former with regard to
authorisations and labelling of GM food. It found that the simplified procedure for foodstuffs could be
applied to food even if it contained transgenic proteins where it was “substantially equivalent”
provided that there was no scientific evidence of any risk to human health. That is to say, the
substantial equivalence concept is not intended to replace a safety assessment, but only provides an
approach to determine whether a safety assessment is required. It identifies hazards, i.e. potential
dangers, which may then require a risk assessment. Thus mere physical differences will not be
sufficient to exclude substantial equivalence but a risk to human health will do so. See Monsanto, n.12
above.
20
Artegodan, n.14, para 185, citing Case C-180/96 United Kingdom v Commission, n.14 above, para.
99; Case C-157/96 National Farmers' Union and Others [1998] ECR I-2211, para. 66.
21
Case C-192/01, Commission v Denmark, [2003] ECR I-9693, para. 42-45. Followed in Case C24/00, Commission v France, 5 February 2004, nyr, paras. 49-52; Case C-95/01, Criminal Proceedings
against Greenham and Abel, 5 February 2004, nyr, paras. 37-39.
22
See, for example, Case C-463/01, Commission v Germany, 14 December 2004, nyr, para. 74; Case
C-192/01, Commission v Denmark, [2003] ECR I-9693; Case C-121/00, Criminal Proceedings against
Walter Hahn [2002] ECR I-09193; Case C-286/02, Bellio F.lli Srl v Prefettura di Treviso, 1 April
2004, nyr.
23
Bellio, n.22 above; Greenham, n.21 above.
24
For a discussion of the difficulty in establishing when Community harmonisation is exhaustive and
the practice of allowing safeguards and other flexibilities into Community legislation, see Joanne Scott,
“International Trade and Environmental Governance: Relating Rules (And Standards) in the EU and
the WTO” 15 EJIL (2004) 15.
19
This is a working draft. Please do not cite without permission of the author.
Comments gratefully received.
6
operation of Article 28 prohibiting measures which hindered intra-Community trade.
Their only recourse would be to the exceptions contained in Article 30.
(ii) the precautionary principle as an interpretative tool
The Court has used the precautionary principle as an interpretative tool to quite
surprising effect. For example, in Case T-147/00, Les Laboratoires Servier v
Commission,25 the CFI interpreted a provision requiring proof that a medicinal
product was harmful before its marketing authorisation could be suspended or
revoked to mean that the competent authorities were obliged to withdraw
authorisation where there were “reasonable doubts” about the safety or efficacy of the
medicine.26 In Monsanto,27 the regulation in question was aimed at protecting human
health and laid down a “substantial equivalence” test for novel foods being introduced
into the market. The Court added another condition based on the precautionary
principle, namely that the substantial equivalence test could not be used where there
was a potential risk to human health from the novel food. In Waddenzee, 28 the
provision in question was contained in the Habitats Directive and it required public
authorities to withhold authorisation of plans or projects which might have a
significant effect on the environment until they had ascertained that it would “not
adversely affect the integrity of the site concerned”.29 Using the precautionary
principle, the Court read this to mean that the public authority must “make sure” or be
“convinced” that no adverse effects will occur.30 Authorisation must be refused where
“doubt remains as to the absence of adverse effects”.31 It can only be given where “no
reasonable scientific doubt remains as to the absence of such effects”.32 This is a very
strong interpretation of the precautionary principle in action. In a recent case on
treatment of urban wastewater, the Court held that Member States could not rely on
scientific uncertainty in deciding what areas of water should be designated as
sensitive for the purposes of preventing eutrophication,33 but should instead by guided
by the precautionary principle which required environmental protection measures to
be taken where there was a sufficient degree of probability that inputs of nutrients into
the water would lead to eutrophication.34
25
[2003] ECR II-00085.
Article 11 of Council Directive 65/65 on the approximation of provisions laid down by law,
regulation or administrative action relating to medicinal products, amended by Council Directive
83/570/EEC of 26 October 1983 (OJ 1983 L 332, p. 1) and Council Directive 93/39/EEC of 14 June
1993 (OJ 1993 L 214, p. 22). See para. 52, citing Artegodan, n.14 above.
27
Monsanto, n.12 above.
28
Case C-127/02, Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van
Landbouw, Natuurbeheer en Visserij, 7 September 2004, nyr.
29
Article 6(3).
30
Paras. 55-56
31
Para. 57
32
Para. 59
33
Eutrophication means the enrichment of water by nutrients, especially compounds of nitrogen and/or
phosphorus, causing an accelerated growth of algae and higher forms of plant life to produce an
undesirable disturbance of the balance of organisms present in the water and to the quality of the water
concerned. See Article 2(11) of Council Directive 91/271/EEC of 21 May 1991 concerning urban
waste water treatment (OJ 1991 L 135, p. 40).
34
C-280/02, Commission v France, 23 September 2004 nyr, para. 34, in which the Court said:
“. . pursuant to Article 174 EC, Community policy on the environment is to be based on the
precautionary principle. In the present case, given the available scientific and technical knowledge, the
degree of probability of a causal link between nutrient inputs into the Seine bay and the accelerated
26
This is a working draft. Please do not cite without permission of the author.
Comments gratefully received.
7
Finally, the interpretation of the Framework Waste Directive35 gives a number of
examples of how the definition of waste is affected by the use of the precautionary
principle. Waste is defined in the Directive as anything which falls in a list contained
in Annex I36 and which is discarded. This has given rise to numerous problems,
particularly in the case of recycled materials, because the meaning of “discard” is not
itself defined.37 In Van de Walle,38 the problem was a leak of petroleum into land. The
Court held, as it had done earlier, that the meaning of the term “discard” could not be
interpreted restrictively because the Directive was intended to protect the environment
and in particular the precautionary principle.39 The Court found that discarding could
include accidental leakage and therefore the leaked hydrocarbons were waste. This is
perhaps not very controversial, but the Court went on to find that the soil that had
been contaminated by the leaked hydrocarbons was also classified as waste. This
could not be explained by any normal meaning of “discard”, and could only by
justified by reference to the objective of the Directive to protect the environment and
in particular to implement the precautionary principle.
It is clear that the effect of the precautionary principle in EC law has been significant
and even surprising. The next question is how the precautionary principle plays out in
WTO law.
THE USE OF THE PRECAUTIONARY PRINCIPLE IN WTO LAW
The WTO has faced the same tensions as the EC over the effect of trade rules and the
preservation of internal autonomy over national policies, and about finding an
appropriate balance between trade liberalisation objectives and environmental
protection measures. Institutionally, the Committee on Trade and Environment has the
role of working through these tensions but has so far had limited success due to the
intractability of reconciling widely differing views and interests.40 In practice,
therefore, disputes which arise from these tensions are often resolved by panels and
then by appeal to the Appellate Body. There is a distinct difference between the
approaches used by panels and the Appellate Body. 41 The former have tended to
growth of phytoplankton in that area is sufficient to require the adoption of the environmental
protection measures provided for in Directive 91/271 if the other criteria for eutrophication are
fulfilled.”
35
Council Directive 91/156/EEC of 18 March 1991 amending Directive 75/442/EEC on waste, 1991
OJ L 78.
36
The list includes production or consumption residues, off-specification or out-of-date products and
contaminated materials.
37
See, for example, Ilona Cheyne, "The Definition of Waste in EC Law" (2002) 14 Journal of
Environmental Law 61-73; Ilona Cheyne and Michael Purdue, "Fitting Definition to Purpose: the
Search for a Satisfactory Definition of Waste" (1995) 7 Journal of Environmental Law 149-167
38
Case C-1/03, Criminal proceedings against Paul Van de Walle, et al., 7 September 2004, nyr.
39
Para. 45, relying on Joined Cases C-418/97 and C-419/97 ARCO Chemie Nederland and Others
[2000] ECR I-4475, paras. 36-40.
40
See, for example, Surya P. Subedi, “The Road From Doha: The Issues for the Development Round
of the WTO and the Future of International Trade” 52 International And Comparative Law Quarterly
(2003) 425.
41
See, for example, Sydney M. Cone III, "The Asbestos Case and Dispute Settlement in the World
Trade Organization: The Uneasy Relationship between Panels and the Appellate Body." 23 Michigan
Journal of International Law (2001)103-42.
This is a working draft. Please do not cite without permission of the author.
Comments gratefully received.
8
favour trade liberalisation objectives and to reject any measures which they perceive
to threaten the security and stability of the multilateral trading system.42 The
Appellate Body has shown itself to be more sensitive to the need to accommodate
‘external’ values, and the resulting jurisprudence signposts how and in what
circumstances the precautionary principle might be applied in the context of the WTO
Agreement. For the time being, this case law has centred around the application of
Article III:4 (prohibiting less favourable treatment of imported products as against
domestic like products), Article XX (b) (making an exception for measures necessary
to protect human, animal or plant life or health), Article XX(g) (making exception for
measures relating to the conservation of exhaustible natural resources), and the SPS
(regulating the use of sanitary and phytosanitary standards). The following discussion
will focus on three landmark cases illustrating the Appellate Body’s approach and its
normative implications for the application of the precautionary principle.
(i) the Asbestos case43
The Asbestos case concerned a French measure which prohibited the sale or use of
asbestos and asbestos-containing materials. The measure was intended to eliminate
disease caused by exposure to those materials. It did, however, permit the use of nonasbestos materials which served the same purpose of fire resistance and which also
posed a risk to human health, albeit less serious. Canada brought a complaint on the
grounds, inter alia, that the French measure violated Article III:4 by discriminating
between like products.44 It argued that all fire-retarding materials should be treated as
‘like’ for this purpose. The established criteria for evaluating likeness are the
property, nature and quality of the products, their end-uses, consumers’ tastes and
habits, and tariff classification.45 The Panel, however, focused on the competitive
relationship between the products and, because they all performed the same sort of
function, it found that discrimination between them constituted a violation of Article
III:4. The Panel concentrated on the similarities between the products in terms of their
properties, nature and quality. Most importantly it declined to consider risk to human
health or consumer tastes and habits. The Appellate Body, on the other hand, took a
more measured approach which encompassed a wider range of considerations. It is
interesting to note that it did not suggest a change in the criteria. The problem was
that the Panel had only given weight to market access, application and substitutability,
and had subsumed the test of end-use into this analysis.46
The Appellate Body accepted the idea that there must be a competitive relationship
but not that it should be the overriding consideration. It insisted that all the evidence
should be weighed in the light of all the criteria. This approach identified two points
that are of particular relevance to the question of whether the precautionary principle
could be applied when determining whether products were like. First, it found that
42
See, for example, the panel reports in Tuna Dolphin II, n.8 above; US - Import Prohibition of Certain
Shrimp and Shrimp Products, WT/DS58/AB/R, 12 October 1998 (the Shrimp case) and European
Communities – Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R (12
March 2001) (the Asbestos case).
43
Ibid.
44
See n.5 above for the text of Article III:4.
45
Appellate Body Report, para. 18.
46
Ibid., paras. 18-42.
This is a working draft. Please do not cite without permission of the author.
Comments gratefully received.
9
difference in physical properties could include the capacity to pose a threat to human
health. Second, it found that consumer tastes and habits could be determinative, and
risk to human health might well be a factor in the way in which consumers
approached a product.
The interesting aspect of this approach, as far as the precautionary principle is
concerned, is that the Appellate Body was prepared to expand its examination beyond
the purely commercial aspects of a competitive relationship. As noted above, there
must be a competitive relationship otherwise there can be no likeness for the purpose
of Article III:4. However, the inclusion of risk to human health as a factor and the
emphasis on taking account of consumer preferences suggest that it might be possible
to introduce a precautionary approach.47 The Appellate Body made it clear that the
criteria of likeness were only tools and were subject to possible change, but the
strength of its approach is that each criteria and all the evidence should be considered.
Thus one would expect that entirely irrational risks not supported by any objective
evidence would be excluded whereas a fear based on scientific evidence or principles,
even if uncertain, could be used under the criteria to show that it was not unreasonable
to differentiate between two types of product even though commercially they were
usually treated in the same way.48 In this case, the Appellate Body did not impose a
formal test of objectivity, but it did review a considerable body of evidence which
satisfied it as to the danger to health posed by asbestos and asbestos-containing
materials.
Although the Panel in the Asbestos case found that the French measure had violated
Article III:4 but was excused by virtue of Article XX(b), and the Appellate Body had
already found that the measure had not been shown to violate Article III:4, the
Appellate Body considered it necessary to analyse the application of Article XX in
the circumstances of the case. Article XX(b) permits measures which are “necessary
to protect human, animal or plant life or health”. The first point that has to be decided
is whether the measure is aimed at a policy protected by the paragraph. In the case of
asbestos, it was accepted that there was a risk of a “very serious nature” and the
French measure was clearly designed to protect human health. However, there
remained the question of how strongly a Member State could protect human health.
The Appellate Body accepted that Member States could choose their own level of
protection according to their own circumstances.49 In this particular case, France had
chosen to eliminate the risk of asbestos-related disease. The consequences of this
reasoning was that the measure could be considered necessary if it achieved the level
of protection chosen, and in this case the objective of eliminating asbestos-related
47
This point is likely to be highly relevant in the current WTO dispute between the US and the EC over
geneticallymodified organisms, EC – Measures Affecting the Approval and Marketing of Biotech
Products, WT/DS291/27, WT/DS292/21, WT/DS293/21. The Panel is due to issue its report by the end
of June 2005.
48
Another interesting point is that Canada failed in its argument because the Appellate Body found that
it had not shifted its burden of proof. Although this may have been coincidental, it fits with the way in
which the precautionary principle works in that it keeps the burden of proof on the party which claims
that there is no danger rather than imposing it on the party asking for action to be taken. It makes it
easier for a country to take a precautionary approach. However, one member of the Panel stated in his
separate statement that on the evidence he would have made a determination that the products in
question were not like, whereas the other members were reluctant to do so because they were wedded
to the fundamental concept of a competitive relationship in the consideration of ‘likeness’.
49
Para. 85.
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10
disease justified the outright ban of asbestos and asbestos-containing materials. The
Canadian suggestion of controlled use as an alternative would not suffice. It would
achieve some reduction in asbestos-related disease but it would not come up the
required level of elimination. The Appellate Body did not require any particular
standard of objective evidence, although it did review the scientific arguments and its
analysis therefore implies the need for some objective justification for a unilaterally
chosen level of protection. The implications of this finding is that it would be possible
to choose a level of protection based on a precautionary approach, because there is no
absolute requirement of scientific justification beyond some objective support. Once
that level of protection has been chosen, the next hurdle is one of proportionality, in
this case to show that the measure is necessary. The test for this is whether the
measure is the least trade-restrictive reasonably available and proportionate to the
objective it is attempting to achieve. Thus, the key test in Article XX(b) is the
proportionality of the measure related to the stated objective and there is
comparatively little constraint on the setting of the level of protection.
(ii) the Shrimp case50
The Shrimp case concerned a US import ban on shrimp caught in nets without devices
to allow turtles to escape. This was a straightforward quantitative restriction which
violated Article XI. The only question was whether it could be saved under Article
XX(g) as a measure relating to the conservation of exhaustible natural resources51
and, if so, whether it could also satisfy the condition in the chapeau of Article XX that
it must not constitute arbitrary or unjustifiable discrimination or a disguised trade
restriction. The Panel found that the US measure constituted unjustifiable
discrimination under the chapeau largely because to allow unilateral conditions to
impede market access would undermine the multilateral trading system.52 The
Appellate Body reversed this finding and, in so doing, raised a number of questions
about the relationship between the WTO trade regime and environmental law,
including the precautionary principle.
The first question was whether the term “exhaustible natural resources” was intended
only to refer to non-renewable resources such as minerals, or whether it could include
animal species. In previous case law, the phrase has been interpreted liberally to
include non-endangered species53 and clean air.54 In the Shrimp case, the turtles in
question were recognised as being endangered. There are many good arguments for
50
N.42 above. See Ilona Cheyne, "Trade and the Environment: The Future of Extraterritorial Unilateral
Measures After the Shrimp Appellate Body" (2000) 5 Web Journal of Current Legal Issues,
<http://webjcli.ncl.ac.uk/2000/issue5/cheyne5.html>
51
Article XX(g) also contains the condition that such a measure must be made effective in conjunction
with restrictions on domestic production or consumption, but this is not relevant to the discussion of the
precautionary principle.
52
United States - Import Prohibition of Certain Shrimp and Shrimp Products, Panel Report,
WT/DS58/R (15 May 1998), para.. 7.45: “In our view, if an interpretation of the chapeau of Article XX
were to be followed which would allow a Member to adopt measures conditioning access to its market for
a given product upon the adoption by the exporting Members of certain policies, including conservation
policies, GATT 1994 and the WTO Agreement could no longer serve as a multilateral framework for
trade among Members as security and predictability of trade relations under those agreements would be
threatened. . . “
53
Tuna Dolphin I and II, n.8 above.
54
United States - Standards for Reformulated and Conventional Gasoline, WT/DS2/9, 20 May 1996.
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11
an interpretation which excludes renewable resources, not least of which is the
argument that to make the phrase cover all resources, whether renewable or nonrenewable, renders the word “exhaustible” superfluous. There is also some evidence
from the drafting history of Article XX that it had been intended to refer to nonrenewable resources such as minerals. However, the Appellate Body chose to take a
modern view, one which recognised the validity of environmental concerns. It did so
by adopting a particular interpretative technique which allows the meaning of terms in
a treaty to evolve rather than relying on the meaning of the member States at the time
of drafting. This was buttressed by a reference in the preamble of the WTO
Agreement to sustainable development which provided evidence that the drafters of
the WTO Agreement intended the term “exhaustible” to be interpreted in the light of
contemporary concerns about conservation.55 Even more importantly, the idea that the
term exhaustible could be interpreted in an evolutionary fashion meant that the
Appellate Body was entitled to refer to state practice outside the WTO.56 Although the
precautionary principle was not specifically mentioned, this approach to treaty
interpretation has obvious normative implications for its application. Indeed, it is
arguable that the reasoning in Shrimp has the effect of applying the precautionary
principle since it allowed the accommodation of modern concerns about potential
threats to species and uncertainty about the implications of their extinction to humans
and the environment in general.57
The second aspect of Article XX(g) which is relevant to the precautionary principle is
the condition that the measure must relate to conservation. Early jurisprudence took
the view that this should be interpreted narrowly, and unilateral measures designed to
promote conservation were not accepted because they were indirect.58 The Appellate
Body has now reasserted the normal meaning of the words and requires only that
there is a “substantial relationship” which is not “merely incidentally or inadvertently
aimed” at conservation.59 In Shrimp, they described it as a “close and genuine
relationship between ends and means”.60 This test focuses more on the problem of
avoiding disguised protectionism than insisting on the least trade-restrictive effect as
is the case when applying the condition of “necessary” in Article XX(b). It also says
nothing about the level of protection chosen or the risk identified which constitutes
the objective of the measure. One would reasonably expect some objective evidence
that conservation is the intention behind the measure, but beyond that, the condition
of “relating to” is not restrictive. In the particular case of Shrimp, the Appellate Body
55
The first recital of the Preamble states:
“Recognizing that their relations in the field of trade and economic endeavour should be conducted
with a view to raising standards of living, ensuring full employment and a large and steadily growing
volume of real income and effective demand, and expanding the production of and trade in goods and
services, while allowing for the optimal use of the world's resources in accordance with the objective of
sustainable development, seeking both to protect and preserve the environment and to enhance the
means for doing so in a manner consistent with their respective needs and concerns at different levels
of economic development, . . .”
56
In this case, for example, the Appellate Body referred to the 1982 Law of the Sea Convention, and
Agenda 21 linked to the Rio Declaration.
57
This is even more true in the case of the Tuna-Dolphin panel reports, n.8 above, in which it was
accepted that it was a legitimate policy to protect dolphins in the Eastern Tropical Ocean even though
they were not endangered.
58
And also coercive, which raised the spectre that such measures would undermine the multilateral
trading regime. See Tuna Dolphin reports, n.8 above.
59
Gasoline, n.54 above, p.19.
60
Shrimp, n.42 above, para. 136.
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12
accepted that the US measure was designed to influence other States to change their
environmental policies but since it was specifically aimed at its stated objective and
allowed the importation of shrimp under reasonable circumstances, it satisfied the
proportionality test.61
Finally, having found that the US measure satisfied the conditions of paragraph (g),
the Appellate Body considered the application of the chapeau. The test here was
whether the measure constituted arbitrary or unjustifiable discrimination or a
disguised restriction on trade. The most relevant part of the Appellate Body’s
reasoning for the application of the precautionary principle concerns its analysis of
unjustifiable discrimination. It pointed out that there was no definition of
unjustifiability within the GATT but that it had to be more than a mere violation of
another provision since Article XX was designed to provide exceptions to the normal
rules. It was important to determine what the Member States considered to be
unjustifiable and for that it was necessary to examine state practice outside the WTO.
The interpretation of the term could also be coloured by the reference to sustainable
development in the Preamble to the WTO Agreement. In fact, the US measure was
found to be unjustifiably discriminatory because, inter alia, it required other countries
to adopt exactly the same methods for conserving turtles rather than allowing them to
use equivalent alternative methods. For the purposes of considering the precautionary
principle, however, the Appellate Body’s reasoning again has significant normative
implications. It locates the meaning of justifiability in state practice and more, that
state practice is to be judged in the light of sustainable development and
contemporary environmental concerns. This appears to allow the use of the
precautionary principle as a guide to legitimate environmental policies not only under
paragraph (g), but also to whether any resulting discrimination is justifiable or not.62
(iii) the Hormones case63
The dispute in Hormones arose because of an import ban imposed by the EC on the
importation of meat and meat products from animals treated with growth-promoting
hormones. The case has been extensively commented on because it is the only case in
which the precautionary principle has been explicitly discussed, but it is of limited use
to our understanding of the wider application of the precautionary principle in WTO
law. The dispute was decided under the SPS Agreement which is designed to
elaborate upon the meaning of Article XX(b) of the GATT.64 The SPS provides for
the right to take measures to protect human, animal or plant life or health, but only in
so far as they are necessary, based on scientific principles, and are not maintained if
there is insufficient evidence.65 Member States are encouraged to adopt international
standards by the fact that national standards that conform with international standards
are deemed to be necessary for the protection of human, animal or plant life or
61
Paras. 138-141.
The reasoning applies equally to cases argued under Article XX(b).
63
EC - Measures Concerning Meat and Meat Products, WT/DS26/AB/R, WT/DS48/AB/R (16 January
1998).
64
The Asbestos case fell within Article XX(b) rather than the SPS Agreement because of the facts of
the case.
65
Article 2.1-2. An exception to these conditions occurs where provisional measures are introduced in
circumstances where there is insufficient evidence. See Article 5.7, discussed below.
62
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13
health.66 However, Article 3.3 permits Member States to introduce measures which
give a higher level of protection than would be provided by international standards if
there is scientific justification for doing so, or if the higher level of protection can be
justified according to the conditions contained in Article 5.1-8. Article 5.1 requires
that national measures be based on a risk assessment taking account of risk
assessment techniques developed by relevant international organisations, and Article
5.2 requires the risk assessment to take into account, inter alia, available scientific
evidence. The emphasis is on objective evidence justifying such cases. However,
Article 5.7 provides that in cases where there is insufficient scientific evidence, it is
possible for Member States to introduce provisional measures provided that they are
based on what relevant information is available and that the Member State seeks to
obtain the necessary additional information to be able to make a more objective
assessment. This re-assessment must occur within a reasonable period of time.67
The EC argued that it was entitled to set its own level of protection by reference to the
precautionary principle and that it was a constituent part of the risk assessment required
in order to set a higher standard of protection than internationally agreed. The Panel,
however, found that the precautionary principle only applied to provisional measures
and, whether it was a principle of international customary law or not,68 it could not
override the wording of Article 5.1 and 2 which required measures pursuing a higher
level of protection to be based on risk assessment and scientific and other objective
evidence. The Appellate Body agreed with this analysis. It pointed out that the
precautionary principle had not been written into the SPS Agreement as an exception. It
was however reflected in the wording of Article 5.7 permitting provisional measures in
cases where there was insufficient scientific evidence to enable a more objective risk
assessment. It added that the precautionary principle was also reflected in the preamble
and in Article 3.3 permitting Member States to impose a higher level of protection than
contained in international standards. Thus a Member State could base its decision to
seek a higher level of protection on the need to be cautious. But measures designed to
provide a higher level of protection than normal still had to satisfy the requirements of
Article 5.1-2.69 The precautionary principle could not be used to change the clear
66
Article 3.2
A “reasonable period of time” is to be “established on a case-by-case basis and depends on the
specific circumstances of each case, including the difficulty of obtaining the additional information
necessary for the review and the characteristics of the provisional SPS measure.” See Japan – Measure
Affecting Agricultural Products WT/DS76/AB/R (22 February 1999), para.93. All national measures
are subject to other conditions, including the need not to constitute unjustifiable or arbitrary
discrimination. See Article 2.2-3.
68
The EC based much of its argument on the claim that the precautionary principle was a principle of
international customary law, whereas the United States and Canada argued that it was not. Neither the
Panel nor the Appellate Body were prepared to pronounce on this question. See Appellate Body
Report:
“The status of the precautionary principle in international law continues to be the subject of debate
among academics, law practitioners, regulators and judges. The precautionary principle is regarded by
some as having crystallized into a general principle of customary international environmental law.
Whether it has been widely accepted by Members as a principle of general or customary international
law appears less than clear. We consider, however, that it is unnecessary, and probably imprudent, for
the Appellate Body in this appeal to take a position on this important, but abstract, question. We note
that the Panel itself did not make any definitive finding with regard to the status of the precautionary
principle in international law and that the precautionary principle, at least outside the field of
international environmental law, still awaits authoritative formulation.” (footnotes in the original
removed)
69
Para. 82.
67
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Comments gratefully received.
14
meaning of the provisions concerning the need for risk assessment and scientific and
other objective evidence.70 Since the EC explicitly excluded reliance on the right to
introduce provisional measures under Article 5.7, it was bound by the obligation to
provide an objective risk assessment based on available scientific evidence.
This case is interesting because of its explicit discussion of the precautionary principle
but ironically it is the least useful of the three cases analysed here because it finds only
that there is a lex specialis applicable in cases where a more general version of the
precautionary principle might have applied. Arguably, a more fruitful subject for
analysis would have been the relationship between the right to choose a higher level of
protection than normal under Article 3.3 and the risk assessment to be carried out under
Article 5.1.
CONCLUSION
At this stage, I can only make some preliminary remarks on the application of the
precautionary principle in WTO and EC law. The difficulty of comparing the
common experiences of these institutions has been noted elsewhere.71 The
institutional and legal frameworks share a common goal of trade liberalisation but
otherwise they are very different. The legislative and enforcement powers of the
Community institutions are an obvious example, as is the high ranking of non-trade
policies in the Community legal order. For the purposes of this paper, a fundamental
difference appears to be the explicit incorporation of the precautionary principle in the
EC Treaty, whereas the WTO Agreement has no such provision other than a rather
indirect and limited equivalent in the SPS Agreement. Thus the EC experience with
the precautionary principle is much richer because of the comparative frequency with
which the Court has been asked to consider the matter, and the variety of situations in
which the precautionary principle may be relevant. The consequence, as one leading
commentator has put it, is that the precautionary principle in EC law has become “a
tool to frame and discipline decision-making”.72 In the WTO context, it is a principle
viewed with suspicion and possessing uncertain normative force.
However, on examination of the case law in both institutions, it is apparent that there
is a rather high degree of convergence in practice. As one might expect, neither legal
regime defines the meaning of the precautionary principle, but nonetheless there is a
significant degree of overlap in approach. The Court’s insistence that there must be
more than a “hypothetical risk” before the precautionary principle is engaged is
broadly the same as the Appellate Body’s refusal to accept “theoretical uncertainty”
as the kind of risk that can be assessed under Article 5.1 of the SPS Agreement.73
The Court of Justice has placed a higher value on human health than economic
interests. This approach is echoed by the Appellate Body in Asbestos when it included
risks to human health as part of the test of like products, not just in considering
70
Note that the EC did not argue that its measure was provisional, in which case it could presumably
have relied successfully on the precautionary principle.
71
Joanne Scott, n.24 above.
72
Joanne Scott, “European Regulation of GMOs and the WTO” 9 Columbia Journal of European Law
(2003) 213, at p.223.
73
See on this point, ibid., at pp. 228-9.
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15
physical properties but also in the context of consumer preference between competing
products in the market. In addition, the Appellate Body has indicated that the
importance of an interest will have an effect on the question of whether a measure is
necessary under Article XX(b).74 This is perhaps technically a point about
proportionality, but it has an overlap with the question It did, however, insist that all
the evidence should be weighed in the light of all the criteria. of precaution. Finally,
the Appellate Body and GATT panels have accepted a very broad interpretation of the
meaning of exhaustible natural resources. In the case of Shrimp, the Appellate Body
supported this broad interpretation by reference to the need to ensure sustainable
development. Arguably, this is another example of using the importance of
environmental protection to trump more narrow commercial interests and an echo of
the approach that has been developed in EC law.
The Court of Justice has also established that there should be two stages in making
decisions in situations of uncertainty. The first stage is that of choosing an acceptable
level of protection and this is interesting not least because this choice will be based on
political as well as scientific considerations. The second stage is that of the risk
assessment which is designed to gain whatever objective information is available,
even though there may be very little. The measure chosen must be proportionate, and
this is gauged against the level of protection adopted, the information gained in the
risk assessment, and its evaluation. An early example of this kind of reasoning can be
seen in the famous Danish Bottles case,75 and more recently in Pfizer76 and
Commission v Denmark77. Again, this approach is echoed by the Appellate Body in
Asbestos, and in Hormones.78 In the former, France was permitted to choose its level
of protection, that is the elimination of a disease, without any serious consideration of
the legitimacy of that choice other than a rather perfunctory investigation to ensure
that there was some sort of objective basis behind it. However, in the analysis of
whether the prohibition on sale or use in that case was necessary, it cannot be denied
that the scientific evidence was an important part of the Appellate Body’s evaluation
of the legality of the French measure. The two stages are perhaps more obvious in the
application of the formal requirements of the SPS Agreement in Hormones, where the
Appellate Body recognised that a precautionary approach could be taken under
Article 3.3 of the SPS Agreement in order to impose a higher level of protection than
normal but that the resulting measure must be contingent upon a risk assessment
based on scientific evidence as required under Article 5.1-2. The requirement of
proportionality as a brake on the implementation of the precautionary principle is
therefore common to the EC and WTO legal regimes, although its application in
situations of scientific uncertainty must surely be inherently problematic.
Both the Court of Justice and the Appellate Body have also insisted that any risk
assessment is specific and properly conducted. For example, the Court of Justice
made this requirement clear in Monsanto,79 and the Appellate Body in Hormones.80
74
Asbestos, n.42, para. 89.
N.10 above.
76
See n.13 above.
77
See n above.
78
More accurately, perhaps, the reasoning in Pfizer is related to the Appellate Body’s reasoning in
Hormones.
79
Paras. 108-109.
80
The EC failed in Hormones, inter alia, because it had not conducted a specific risk assessment on the
use of growth-promoting hormones. Likewise, in Australia - Measures Affecting Importation of
75
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16
Although Article 5.7 allows provisional measures without a full risk assessment, the
Appellate Body has insisted on giving the article a narrow interpretation. It has
enforced the condition that there must be insufficient scientific evidence before it can
apply,81 and that a Member State which has introduced a provision measure under this
provision must seek additional information and review the measure within a
reasonable period of time.82
The area of practice where it is more difficult to see common approaches is where the
Court of Justice has evaluated Community measures or interpreted legislation. There
is no exact parallel in the WTO.83 However, it may be possible to see some
convergence of approach in the Appellate Body’s reasoning in Shrimp. When it
considered the question of unjustifiable discrimination, the Appellate Body looked to
the preamble of the WTO Agreement which included the reference to sustainable
development. It also looked to state practice outside the WTO Agreement in order to
find the meaning of a GATT provision, namely the chapeau of Article XX. This is not
unlike the use of the Basel Convention reference by the Court of Justice to support its
finding in the Wallonian Waste case that waste should be treated as a special case
under the free movement of goods rules.84 In the specific examples of EC cases where
the precautionary principle has been considered, it can be seen that the principle has
been used to produce some far-reaching results while interpreting Community
legislation based on little more than a statement that the legislation was intended to
implement or was based on the precautionary principle. So, for example, procedures
for the authorisation of novel foods could be changed,85 or the definition of waste
extended far beyond the normal wording of the provision in question.86
This brings us to one of the fundamental points about the common experience of the
EC and the WTO, namely the question of positive and negative harmonisation. Both
institutions have pursued negative harmonisation in the sense of trying to reduce or
eliminate trade barriers. The EC has also pursued an active agenda of positive
harmonisation, including common technical standards and protection of non-trade
values. The closest that the WTO has come to positive harmonisation has been
covered agreements such as the SPS Agreement, which may incorporate external
standards by reference.87 But not too much reliance should be placed on this as a
difference, for two sets of reasons. First, positive harmonisation in the EC is rather
more incomplete and flexible than might first appear.88 Second, positive
harmonisation that excludes individual Member State acts simply has the effect of
Salmon, WT/DS18/AB/R (20 October 1998), Australia could not rely on a general risk assessment
which was not specific to the measure in dispute.
81
In Japan – Measures Affecting the Importation of Apples, WT/DS245/AB/R (26 November 2003)
Japan was unable to rely on Article 5.7 because there was sufficient evidence to be able to evaluate the
likelihood of the entry, establishment, or spread of a disease affecting apples.
82
In Japan – Measures Affecting Agricultural Products, WT/DS76/AB/R (22 February 1999), Japan
did not satisfy Article 5.7 because its measure had been in place for almost 30 years and there was no
evidence that it had sought new evidence or reviewed the measures.
83
See also Joanne Scott’s interesting analysis of the possible role of the Appellate Body in relation to
external multilateral agreements, n.24 above.
84
Case C-2/90 Commission v Belgium [1992] I-ECR 4431, para. 35.
85
Monsanto, n.12 above.
86
Van de Walle, n.38 above.
87
See Scott, n.24 above. Other such agreements include the Agreement on Technical Barriers to
Trade, and the Trade-Related Intellectual Property Agreement.
88
For an excellent discussion of this aspect of positive harmonisation, see Scott, n.24 above.
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17
changing the bottom line. True, it may protect non-trade values and thus has a
significant difference compared with the substantive legal environment of the WTO.
In the case of the EC, of course, the development of the rule of reason by the Court of
Justice has also given a unique slant to the question of harmonisation and the
accommodation of regulatory differences. However, in other ways, exhaustive
harmonisation puts the Member States in the same position as if there were no such
harmonisation. They can only rely on the limited exceptions contained in Article 30,
in the same way that Member States of the WTO can only rely upon the limited
exceptions in Article XX. In principle, therefore, the normal rules of free trade will
continue to be applied.
Thus it appears that there is very little philosophical difference between the
approaches of the EC and the WTO to the application of the precautionary principle,
although the Appellate Body is clearly less free to apply it in the absence of explicit
incorporation by the Member States into the WTO Agreement. But this functional
difference should perhaps also be considered less important than it first appears. The
experience of both institutions with the precautionary principle suggests that it is far
more powerful in the interpretation and application of trade law than one might have
expected, and that the fact that both the ECJ and the Appellate Body have been forced
to engage with it has revealed a surprising degree of convergence in seeking the
solution of trade-environment disputes.