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The WTO and the progressive development of International Trade Law1

Published online by Cambridge University Press:  07 July 2009

Friedl Weiss
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If the trading system of the 21st century is to succeed in ‘raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production and trade in goods and services … in accordance with the objective of sustainable development’, it must be equipped to achieve these goals.

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Articles
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Netherlands Yearbook of International Law , Volume 29 , December 1998 , pp. 71 - 115
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Copyright © T.M.C. Asser Press 1998

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References

3. Preamble to the Agreement Establishing the World Trade Organisation, para. 1.

4. The project of a MAI, first elaborated in negotations amongst OECD countries, has been abandoned in 1998, at least for the time being, see the Ministerial Statement on the Multilateral Agreement on Investment at the OECD Council Meeting of 27–28 April 1998.

5. For recent doctrinal reflections on international economic law see Jackson, J.H., Reitz, C.R., Trachtman, J.P., Zamora, S. in 17/1Univ.Pa. JInt. Econ.L (1996) pp. 17–67Google Scholar; Cass, R.A., ‘Economics and International Law’, 29 International Law and Politics (1997) pp. 473 et seq.Google Scholar

6. On the variety and complexity of issues involved see Ginther, K., Denters, E. & de Waart, P.J.I.M., eds., Sustainable Development and Good Governance (Martinus Nijhoff Publishers, Dordrecht 1995)Google Scholar and Weiss, F., Denters, E. and de Waart, P.J.I.M., eds., International Economic Law with a Human Face (Kluwer Law International, The Hague 1998).Google Scholar

7. Habermas, J., Theorie des kommunikativen Handelns II (Suhrkamp, Frankfurt aM 1981) p. 530.Google Scholar

8. Dahrendorf, R., ‘Weltmarkt und Sozialökonomie’, 51 Merkur (1997) pp. 821–828.Google Scholar

9. Krugman, P.R., Pop Internationalism (The MIT Press, Cambridge MA 1997) pp. 208, 212.Google Scholar

10. IBRD/The World Bank, ‘Fostering Markets: Liberalization, Regulation and Industrial Policy’, chap. 4 in The State in a Changing World, The World Development Report (1997) p. 61.Google Scholar

11. Stigler, G., ‘The Process of Economic Regulation’, 17 The Anti-Trust Bulletin (1972) pp. 207 et seq.Google Scholar

12. Teubner, G. and Willke, H., ‘Kontext und Autonomie’, Zeitschrift für Rechtssoziologie (1984)Google Scholar; similarly, Teubner, G., ‘‘Global Bukowina’: Legal Pluralism in the World Society’, in Teubner, G., ed., Global Law without a State (Aldershot, Ashgate 1997) pp. 3–28.Google Scholar

13. A GATT Group of Experts appointed in 1958 (BISD 7S/29) reported on harmful restrictive business practices in international trade and considered ‘that it would be unrealistic to recommend at present a multilateral agreement for the control of international restrictive business practices, BISD 9/170, 171; see also Leon Brittan's speech on the EC's future competition policy, Press Release, IP(92) 1009 of the EC Commission of 8 December 1992.

14. From an abundance of literature suffice it to mention Schoenbaum, T.J., ‘International Trade and the Protection of the Environment: The Continuing Search for Reconciliation’, 91 AJIL (1997) pp. 268–313CrossRefGoogle Scholar; Charnovitz, S., ‘Environmentalism Confronts GATT Rules’, 27 Journal of World Trade No. 2 (04 1993) pp. 37–53Google Scholar; Sorsa, P., ‘The Environment, A New Challenge to GATT?’, World Bank, Working Papers (1992)Google Scholar; for surveys of relevant GATT/WTO practice see Weiss, F., in Vols. 1–6 (1990–1996) Yearbook of International Environmental Law.Google Scholar

15. Harris, N., ‘Free International Movement of Labour’, Economic and Political Weekly (1991) pp. 163–164.Google Scholar

16. Harter, P.J., ‘Negotiating Regulations: A Cure for Malaise’, 71 Georgetown LJ (1982) pp. 1 et seq.Google Scholar

17. Art. II:1 of the Agreement Establishing the WTO; for an overview see Weiss, F., ‘WTO Dispute Settlement and the Economic Order of WTO Member States’, in van Dijk, P. and Faber, G., eds., Challenges to the New World Trade Organization (Kluwer Law International, The Hague 1996) p. 77Google Scholar; Qureshi, A.H., The World Trade Organization (Manchester University Press, Manchester 1996).Google Scholar

18. Art. II:4 WTO.

19. The WTO shall, in particular, facilitate their implementation, administration, and operation, and further their objectives (Art. III:1); provide a forum for negotiations among its members concerning their multilateral trade relations in matters dealt with under the covered agreements (Art. III:2); administer the Understanding on Rules and Procedures Governing the Settlement of Disputes and of the Trade Policy Review Mechanism (Art. III:3,4); and it shall also cooperate with the IMF and with the IBRD and its affiliated agencies so as to achieve greater coherence in global economic policy-making (Art. III:5).

20. Cortney, P., The Economic Munich. The I.T.O. Charter, Inflation or Liberty, The 1929 Lesson (Philosophical Library, New York 1949) p. 132.Google Scholar

21. On pertinent contextual questions see Weiss, F., ‘The GATT 1994: environmental sustainability of trade or environmental protection sustainable by trade?’, in Ginther, et al. , eds., op. cit. n. 6, pp. 382–401.Google Scholar

22. See e.g., Art. 1 of the Havana Charter for an International Trade Organization; Preamble to the Convention of the OEEC, of 16 April 1948, Peaslee, A.J., International Governmental Organisations Part II (Nijhoff, The Hague 1975) p. 1624Google Scholar; Boutros, Boutros-Ghali, ‘An Agenda for Peace, Preventive Diplomacy, Peacemaking and Peace-keeping’Google Scholar, Report of the Secretary General pursuant to the statement adopted by the Summit Meeting of the Security Council on 31 January 1992 (UN, New York 1992)

23. Para. 3 of the Draft Resolution proposed by the United States of America regarding an international conference on trade and employment, Doc. E/4, and discussion thereof, Official Records of the Economic and Social Council, 1st year, 1st session, 23 January to 18 February 1946, p. 64 and Annex 1a, p. 124; this link between freer trade and full employment was first adumbrated in the Atlantic Charter of 12 August 1941, Department of State Bulletin V, pp. 112, 125; see also Weiss, in Ginter et al., op. cit. n. 6, pp. 382–401.

24. Final Act and Related Documents, E/Conf.2/78; Wilcox, C., A Charter for World Trade (1949)Google Scholar; Brown, W.A. Jr., The United States and the Restoration of World Trade. An Analysis and Appraisal of the ITO Charter and the General Agreement on Tariffs and Trade (1950)Google Scholar; Fawcett, J.E.S., ‘The International Trade Organization’, 24 BYIL (1947) p. 376Google Scholar; Fawcett, J.E.S., ‘The Havana Charter’, 5 Yearbook of World Affairs (1951) p. 269.Google Scholar

25. Art. 55(a) UN Charter; discussion of the Interim Report of the 2nd session of the Preparatory Committee of the United Nations Conference on Trade and Employment (Doc. E/469), Official Records of the Economic and Social Council, 2nd year, 5th session, 96th meeting, pp. 78, 79; see also, Scammell, W.M., ‘International economic co-operation and the problem of full employment’, 6 YBWA (1952) pp. 222–245.Google Scholar

26. The term ‘codification’ as used by Dam reflects, therefore, the US view that the provisions of the Charter constitute legally enforceable rules, but not that they amount to codification of customary international law, see Dam, K.W., The GATT. Law and International Economic Organization (University of Chicago Press, Chicago 1970) p. 10.Google Scholar

27. First session of the ECOSOC at Church House, Westminster, London, Doc. E/4, Annex 1a, p. 76.

28. In 1946 Keynes wrote that ‘I do not suppose that the classical medicine will work by itself or that we can depend on it. We need quicker and less painful aids of which exchange variation and over-all import control are the most important. But in the long run these expedients will work better and we shall need them less, if the classical medicine is also at work’, cited in Harris, S.E., ed., The New Economics. Keynes' Influence on Theory and Public Policy (Alfred A. Knopf, New York 1948) p. 322.Google Scholar

29. Robbins pointed out that the English classical political economists such as Hume, Smith, Malthus, Ricardo, Bentham or Mills saw in the ‘invisible hand’ ‘the hand of the law maker, the hand which withdraws from the sphere of the pursuit of self-interest those possibilities which do not harmonize with the public good’ and that they believed ‘that … the pursuit of self-interest, unrestrained by suitable institutions, carries no guarantee of anything except chaos’, Robbins, L.C., The theory of economic policy in English classical political economy (Macmillan, London 1978, first published 1952) p. 56.Google Scholar

30. The actual inventors of the theory of strategic trade policy were James Brander and Barbara Spencer, see Krugman, op. cit. n. 9, p. 30.

31. Krugman, P.R., ‘Introduction: New Thinking about Trade Policy’, in Krugman, P.R., ed., Strategic Trade Policy and the New International Economics (The MIT Press, Cambridge, MA 1986) p. 15.Google Scholar

32. See e.g., the Panel Report on ‘Japan-Customs Duties, Taxes and Labelling Practices on Imported Wines and Alcoholic Beverages’, adopted on 10 November 1987, BISD 34S/83.

33. See Weiss, F., ‘Internationally recognized labour standards and trade’Google Scholar, in Weiss et al., op. cit. n. 6, pp. 97–107; Cappuyns, E., ‘Linking Labor Standards and Trade Sanctions: An Analysis of Their Current Relationship’, 36 Columbia Journal of Transnational Law (1998) pp. 659–686.Google Scholar

34. ‘… universal and lasting peace can be established only if it is based upon social justice; …’, para. 1 of the Preamble to the ILO Constitution.

35. Arts. 5 and 62 also refer to the promotion of employment.

36. Cortney wrote: ‘our free society is as much in favor of a high level of employment as the socialists profess to be. The difference lies in the objectives to be attained and in the means to be used. Our aim is a high level of employment as a consequence of a high level of production and general economic activity. We do not want means to attain full employment which lead to economic autarchy and economic nationalism’, op. cit. n. 20, p. 35.

37. Report of WP on ‘Organizational and Functional Questions’, L/327, adopted on 28 February, 5 and 7 March 1955, BISD 3S/231, 241, para. 28; New Zealands' proposal included, inter alia, ‘a recognition that high and stable standards of employment were necessary for increased international trade, and that the balance of payments of individual countries could be materially affected by a decline in the level of employment in other countries; an undertaking by members to take action not inconsistent with the GATT and through measures appropriate to their domestic institutions to achieve and maintain full and productive employment; and a stipulation that the Organization should … initiate consultations … on appropriate measures … to prevent the international spread of a decline in employment, production or demand’, ibid., para. 27.

38. Ibid., pp. 240–242, paras. 27–32.

39. An Interpretative Note to Article XII, para. 3(b)(i) of the GATT 1947 made reference to the special problems that might arise when contracting parties maintain quantitative regulations of their foreign trade in response to a high level of demand for imports caused by programmes of full employment, noting that Art. XII, together with GATT provisions for export controls fully meet the position of these economies, BISD, Vol. I, (1952) p. 72; this particular note was deleted in a later amendment.

40. Arts. XI-XV GATT.

41. Maupain, F., ‘Trade and Core Labour Standards’, 44 Wirtschaftspolitische Blätter (1997) p. 582Google Scholar; J.H. Jackson sees in ‘social dumping’ the exploitation of prison or sweated labour (forms of forced labour including child labour), World Trade and the Law of GATT (The Bobbs-Merrill Comp., Inc., Indianapolis 1969) para. 16.02.Google Scholar

42. The issue was already debated at the 1927 League of Nations World Economic Conference, i.e., the idea that firms that pay lower wages to poorer workers in developing countries compete unfairly against employers in more advanced countries, who must provide higher wages and benefits to their workers, a flawed idea which undermines the very essence of free trade based on comparative advantage.

43. In 1976 Scandinavian transport unions objected to practices of ships flying ‘flags of convenience’; in 1985 violent incidents in SA triggered boycotts of Royal Dutch maintaining coal and oil investments in SA.

44. In 1924 Austria authorised penalty duties of up to 1/3 of the statutory rate on goods produced by labour working excessive hours; in 1935 Cuba authorised increased duties on low-wage goods that endangered Cuban commerce.

45. In 1926 the CSSR authorised CVDs on goods produced under ‘unfavourable social conditions of labour’ that threatened domestic production.

46. A 1980 action by a German asbestos producer under the German Unfair Competition Act for an import prohibition of Korean asbestos and a mandatory information of potential buyers failed because the court considered that unethical conditions of production even if in breach of an ILO Occupational Cancer Convention was not of essential importance to buyers.

47. Panel Report on ‘Italian Discrimination against Imported Agricultural Machinery’, L/833, adopted on 23 October 1958, BISD 7S/60.

48. Report of the Working Party on ‘Italian restrictions affecting imports from Israel’, adopted on 9 December 1961, BISD 10S/130.

49. Panel Report on ‘EEC-Quantitative Restrictions against imports of certain products from Hong Kong’, adopted on 12 July 1983, BISD 30S/129.

50. Panel Report on ‘Japanese Measures on Imports of Leather’, adopted on 15/16 May 1984, BISD 31S/94.

51. Panel Report on ‘United States-Restrictions on Imports of Tuna’, (unadopted) BISD 39S/155, para. 4.27, at 189; 30 ILM (1991) 1594; from abundant literature see particularly Charnovitz, S., ‘Free Trade, Fair Trade, Green Trade: Defogging the Debate’, 27 Cornell ILJ (1994) p. 459Google Scholar; Petersmann, E.U. 27 Journal of World Trade (1993) p. 46.Google Scholar

52. See n. 82 infra; discussion of this Panel Report see Weiss, F., ‘The Second Tuna GATT Panel Report’, 8 LJIL (1995) pp. 135–150.CrossRefGoogle Scholar

53. Panel Report on ‘Canada - Measures Affecting Exports of Unprocessed Herring and Salmon’, adopted on 22 March 1988, BISD 35S/98, paras. 3.11, 5.1.

54. Panel Report on ‘Anti-Dumping and Countervailing Duties’, L/1141, adopted on 27 May 1960, BISD 9S/194.

55. Panel Report on ‘Italian Discrimination against Imported Agricultural Machinery’, supra n. 46; WP Report on ‘Italian restrictions affecting imports from Israel’, supra n. 47.

56. Panel Report on ‘Japanese Measures on Imports of Leather’, supra n. 49.

57. Marrakesh Ministerial Declaration of 15 April 1994, 33 ILM (1994) p. 1263.

58. See para. 8(c)(iii) of the Decision on the Establishment of the Preparatory Committee for the WTO.

59. See Weiss, F., ‘Internationally Recognized Labour Standards and Trade’Google Scholar, in Weiss et al., op. cit. n. 6, pp. 79–107; Diller, J.M. and Levy, D.A., ‘Child Labor, Trade and Investment: Toward the Harmonization of International Law’, 91 AJIL (1997) pp. 663CrossRefGoogle Scholar et seq.; Langille, B.A., ‘General Reflections on the Relationship of Trade and Labour’ (or: Fair Trade is Trade's Destiny), in Bhagwati, J., Hudec, R.E., eds., Fair Trade and Harmonization. Prerequisites for Free Trade, Vol. 2, Legal Analysis (The MIT Press, Cambridge MA 1996) pp. 231Google Scholar et seq.; V.A. Leary, ‘Workers' rights and international trade: The social clause (GATT, ILO, NAFTA, U.S. Laws)’, in ibid., chapt. 5; de Waart, P.J.I.M., ‘Minimum Labour Standards in International Trade’, in Van Dijk and Faber, op. cit. n. 16, pp. 245Google Scholar et seq; Bhala, R., ‘Clarifying the trade-labor link’, 37 Columbia Journal of Transnational Law (1998) pp. 11–56.Google Scholar

60. Art. 4 (2)(a) of the Agreement on Safeguards lists ‘employment’ amongst relevant factors to be used to determine whether increased imports have caused or are threatening to cause serious injury to a domestic industry; Art. 6(3) of the Agreement on Textiles and Clothing requires safeguards against imports affecting a particular industry to be based on a ‘determination of serious damage, or actual threat thereof … as reflected in changes in … economic variables as … wages, employment, … etc.’

61. Art. 3(4) of the Agreement on Implementation of Article VI of GATT 1994.

62. Art. 15(4) of the Agreement on Subsidies and Countervailing Measures …; subsidies to assist disadvantaged regions may be non-actionable if the factors for objectively measuring their economic development includes an unemployment rate of at least 110 per cent of the average for the territory concerned, Art. 8(b)(iii).

63. Art. XVII(2)(d) GATS; see Weiss, F., ‘The General Agreement on Trade in Services 1994’, 32 CMLRev (1955) pp. 1177–1225.Google Scholar

64. Annex on movement of natural persons supplying services under the Agreement, para. 2.

65. 23rd meeting of the Group of Negotiations on Services of 18–22 September 1989, MTN.GNS/25, 23 October 1989, para. 61; see also the representative of the EC in MTN.GNS/FIN/1 5 July 1990, para. 123.

66. Para. 1 of the Preamble to the GATS.

67. See however, Ecuador's submission as an intervening third party to the Panel on ‘United States Import Prohibitions of Certain Shrimp and Shrimp Products’, on the importance of the shrimp industry, for, inter alia, employment of skilled and unskilled labour, Panel Report, WT/DS58/R, 15 May 1998, para. 4.22.

68. WT/MIN[96]/DEC/W, 13 December 1996, para. 4; reprinted in WTO, Annual Report 1997, Vol. I, p. 97; and in Hummer, W. and Weiss, F., Vom GATT’47 zur WTO’94, Dokumente zur alten und zur neuen Welthandelsordnung (Nomos Verlagsgesellschaft, Baden-Baden 1997) p. 1283Google Scholar; see also the conclusion of a recent economic study according to which ‘the case for internationalization of labor standards is rather weak’ and that it would have ‘unintended adverse consequences for the very people they are intended to protect’, Brown, D.K., Deardorff, A.V. and Stern, R.M., ‘International Labor Standards and Trade: A Theoretical Analysis’, in Bhagwati, J.N. and Hudec, R.E., eds., Fair Trade and Harmonization: prerequisites for free trade?, Vol. 1, Economic Analysis (The MIT Press, Cambridge MA 1996) pp. 227–280, at p. 272.Google Scholar

69. Art. 1(2)(a) of Central European Free Trade Agreement (CEFTA) 1992 and Arts. 3(b) and 143(1)(a) of the 1993 Treaty Establishing the Common Market for Eastern and Southern Africa refer to the improvement of living standards or employment or working conditions; the Preamble to the GATT and Art. 2 of the Stockholm Convention Establishing the European Free Trade Association 1960 refer even to full employment; Art. 53 of the international commodity agreements on natural rubber (1987), Art. 63 of successive International Sugar Agreements and Art. 64 of the 1986 Cocoa Agreement refer generally to the need to uphold labour standards, see Servais, J.-M., ‘The social clause in trade agreements: wishful thinking or an instrument of social progress?’, 128 International Labour Review (1989) p. 423.Google Scholar

70. Annex 1 on Labor Principles to the North American Agreement on Labor Cooperation (‘NAFTA Labor Side Agreement’) between the US, Canada and Mexico of 1993 contains a list of 11 such principles, 32 ILM (1993) pp. 1499, 1515; 133 International Labour Review (1994) p. 113Google Scholar et seq.; see also the Maastricht Protocol on Social Policy of 1992 expanding the European Union's legislative capacity through majority voting on a number of legislative issues; Bercusson, B., ‘The European Community's Charter of Fundamental Social Rights of Workers’, 53 Modern Law Review (1990) p. 624CrossRefGoogle Scholar et seq.; for a comparative study of the NAFTA and the EU approaches see van Wezel Stone, K., ‘Labor and the Global Economy: Four Approaches to Transnational Labor Regulation’, 16 Michigan Journal of International Law (1995) pp. 987, 997 et seq.Google Scholar

71. Art. 20 of the Treaty on the Creation of Economic Union of the Commonwealth of Independent States, 1993, 34 ILM (1995) p. 1298.

72. Para. 1 of the Preamble to the WTO Agreement; see Malanczuk, P., ‘Sustainable development: some critical thoughts in the light of the RIO Conference’Google Scholar, in Ginther et al., op. cit. n. 6, pp. 23–52; Pinto, M.C.W., ‘Reflections on the term “sustainable development” and its institutional implications’Google Scholar, ibid., pp. 72–79; Lang, W., ‘How to manage sustainable development?’Google Scholar, ibid., pp. 90–104; Lang, W., ed., ‘Sustainable Development and International Law’ (1995)Google Scholar; Repetto, R., ‘Trade and sustainable development’, 1 Environment and Trade (1994)Google Scholar, Brown-Weiss, E.D., ‘Environment and trade as partners in sustainable development: A commentary’, 86 AJIL (1992) pp. 728–735CrossRefGoogle Scholar; Chase, B.F., ‘Tropical forests and trade policy: The legality of unilateral attempts to promote sustainable development under the GATT’, 17 Hastings International & Comparative Law Review (1994) pp. 349–388Google Scholar; von Moltke, K., ‘The World Trade Organization: Its implications for sustainable development’, 3 The Journal of Environment and Development (1994) pp. 43–57Google Scholar; Shaw, N. and Cosbey, A., ‘GATT, the World Trade Organization, and sustainable development’, 6 International Environmental Affairs (1994) pp. 245–272.Google Scholar

73. Para. 11 of the 1993 Vienna Declaration and paras. 66–67 of the Programme of Action, adopted at the Vienna World Conference on Human Rights; Kane, M. J., ‘Promoting Political Rights to Protect the Environment’, 18 Yale Journal of International Law (1993) p. 389Google Scholar; Hossain, K., ‘Evolving Principles of sustainable development and good governance’Google Scholar, in Ginther et al., op. cit. n. 6, pp. 15–22; Ginther, K., ‘Sustainable development and good governance: development and evolution of constitutional orders’Google Scholar, ibid., at pp. 150–177; K.C.J.N. Arts, ‘European Community development cooperation, human rights, democracy and good governance: at odds or at ease with each other?’Google Scholar, ibid., at pp. 259–273, Nherere, P., ‘Conditionality, human rights and good governance: a dialogue of unequal partners’Google Scholar, ibid., at pp. 289–307; Denters, E., ‘Good governance and development cooperation: towards a global approach’Google Scholar, ibid., at pp. 308–321.

74. de Waart, P.J.I.M., ‘The right to self-determination from a sustainable development perspective’Google Scholar, in Ginther et al., op. cit. n. 6, at p. 243; Art. 28 of the Universal Declaration of Human Rights; paras. 8 and 10 of the 1993 Vienna Declaration and Programme of Action, adopted on 25 June 1993 at the Vienna World Conference on Human Rights, 14–25 June 1993, 32 ILM (1993) p. 1661.

75. A UNEP list of International Treaties and other Agreements in the field of the environment contains 152 items, UNEP/GC.16/Inf.4, Nairobi, May 1991.

76. Rayner, S., ‘Governance and the Global Commons’Google Scholar, Discussion Paper No. 8, The Centre for the Study of Global Governance (CsGG), London School of Economics, p. 2.

77. Whalley, J., ‘The interface between environmental and trade policies’, 101 The Economic Journal (1991) p. 180CrossRefGoogle Scholar et seq; Schultz, J., ‘The GATT/WTO Committee on Trade and the Environment - Toward Environmental Reform’, 89 AJIL (1995) pp. 423CrossRefGoogle Scholar et seq.; Tarasofsky, R.G., Weiss, F., YIEL (1997) pp. 582–603.Google Scholar

78. Although the 1992 Rio Declaration on Environment and Development makes no reference to the Universal Declaration, some, nonetheless, claimed the concept of ‘sustainable development’, already adumbrated in Article 28 of the Universal Declaration, giving everyone a right ‘to a social and international order’ in which the rights and freedoms ‘can be fully realized’; see Weiss, op. cit. n. 21, at p. 394.

79. See however, Art. 57(c) of the Havana Charter which lists amongst the objectives of Intergovernmental Commodity Agreements a reasonable degree of price stability as is ‘fair to consumers’.

80. Report of the Working Party on problems of trade in certain natural resource products, BISD 32S/126, 132.

81. BISD 32S/136, paras. 10, 15.

82. Arts. III:4, XI:1 GATT.

83. Panel Report on ‘Restrictions on the Importation of and Internal Taxes on Cigarettes by Thailand’, adopted on 7 November 1990, BISD 37S/200, 30 ILM (1991) 1122.

84. Panel Report on ‘United States - Restrictions on Imports of Tuna’, DS29/R, 16 June 1994 (unadopted), 33 ILM (1994) p. 839.

85. These proposals were discussed in a Uruguay Round Group on Environmental Measures and International Trade (EMIT), for details see Weiss, F., ‘General Agreement on Tariffs and Trade (GATT)’, 4 YIEL (1993) pp. 512–519.Google Scholar

86. See e.g., Carothers, A. and Sarmiento, N., ‘Trading Away the Planet’, Greenpeace (Sept./Oct.1990) pp. 14, 16.Google Scholar

87. Whalley, op. cit. n. 77, at pp. 181, 187.

88. Petersmann, E.U., ‘Trade Policy, Environmental Policy and the GATT’, 46 Aussenwirtschaft (1991) pp. 197 et seq.Google Scholar

89. Charnovitz, S., ‘Exploring the Environmental Exceptions in GATT Article XX’, 25 Journal of World Trade (1991) pp. 37 et seq.Google Scholar

90. See 2nd Report of the Chairman of the Group EMIT to the CONTRACTING PARTIES at their 49th session, 1993, BISD 40S/75, para. 9.; Steinberg, R.H., ‘Trade-Environment Negotiations in the EU, NAFTA, and WTO: Regional Trajectories or Rule Development’, 91 AJIL (1997) p. 231, at p. 265.CrossRefGoogle Scholar

91. These include environmental research programmes, infrastructural works associated with them and payments under environmental programmes, Art. 6 on Domestic Support Commitments and Annex 2 on Domestic Support: the basis for exemption from the reduction commitments, paras. 1, 2, 12.

92. Art. 5(2); see also Barceló, J.J. III, ‘Product standards to protect the local environment - the GATT and the Uruguay Round Sanitary and Phytosanitary Agreement’, 27 Cornell ILJ (1994) pp. 755–776.Google Scholar

93. Arts. 2.10. and 5.7.

94. Art. 8.2(b).

95. Art. 27(2).

96. Art. XIV on ‘General Exceptions’ to the GATS is virtually identical to Art. XX GATT; the proposed insertion of the ‘environment’ as one of the exceptions was rejected for both Articles.

97. Panel Report on ‘United States-Standards for Reformulated and Conventional Gasoline’, 35 ILM (1996) p. 274.

98. Panel Report on ‘Japan-Customs Duties, Taxes and Labelling Practices on Imported Wines and Alcoholic Beverages’, adopted on 10 November 1987, BISD 34S/83, 115, para. 5.6.

99. Panel Report on ‘United States-Section 337 of the Tariff Act of 1930’, adopted on 7 November 1989, BISD 36S/386, para. 5.11.

100. Panel Report, supra n. 97, paras. 6.9, 6.10. and 6.14.

101. The ‘primarily aimed at’-test was established by the Panel Report on ‘Canada-Measures affecting exports of unprocessed herring and salmon’, adopted on 22 March 1988, BISD 35S/98, para. 4.6.

102. Supra n. 96, para 6. 40.

103. Report of the Appellate Body, WT/DS2/AB/R, adopted on 20 May 1996, 35 ILM (1996) p. 603.

104. This interpretation is buttressed by the unadopted Tuna-Dolphin GATT Panel Reports (paras. 5.31, 5.27), as well as by the GATT Panel Report on Auto Taxes (para. 5.60).

105. Art. XX: … (g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption; …’

106. Art. XX: ‘Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail or a disguised restriction on international trade …’

107. For some critical comment see Tarasowsky, R. and Weiss, F., 7 Yearbook of International Environmental Law (1997) pp. 591–593.Google Scholar

108. Panel Report: WT/DS26/R/USA, 18 August 1997; AB Report, WT/DS26/AB/R, 16 January 1998.

109. Council Directives 81/602/EEC of 31 July 1981; 88/146/EEC of 7 March 1988; and 88/299/EEC of 17 May 1988.

110. Art. 5.1: ‘Members shall ensure that their sanitary or phytosanitary measures are based on an assessment, as appropriate to the circumstances, of the risks to human, animal or plant life or health, taking into account risk assessment techniques developed by the relevant international organizations’.

111. Panel Report: WT/DS26/R/USA, 18 August 1997; AB Report, WT/DS26/AB/R, 16 January 1998, paras. 201, 208, 253 1.

112. Paras. 187, 206, 253j; see also Walker, V.R., ‘Keeping the WTO from Becoming the ‘World Trans-science Organization’: Scientific Uncertainty, Science Policy, and Factfinding in the Growth Hormones Dispute’, 31 Cornell ILJ (1998) pp. 251–320.Google Scholar

113. Panel Report on ‘United States - Import Prohibition of Certain Shrimp and Shrimp Products’, WT/DS58/R, 15 May 1998, 37 ILM (1998) 832.

114. Section 609 of US Public Law 101–162 of 1989 calls upon the US Government to initiate negotiations on bilateral or multilateral agreements for the protection and conservation of sea turtles; and to prohibit imports of shrimp harvested with technology that may adversely affect certain sea turtles, except upon annual certification by the US President to Congress that the harvesting nation has a regulatory programme and an incidental take rate comparable to that of the US; implementing measures required all shrimp trawl vessels to use TEDs-turtle excluder devices developed by the US National Marine Fisheries Service – and all imported shrimp products to be accompanied by a ‘Shrimp Exporter's Declaration form’ that the shrimps in question were harvested in a manner not harmful to sea turtles.

115. Such reference to the WTO Preamble implies invocation of international law to the extent incorporated therein. With respect to Art. XX the US argued, somewhat inconsistently, that the Panel's terms of reference only concerned ‘relevant provisions of the covered agreements’, in particular Art. XX, which did not incorporate general rules of international law. In any case no state practice was presented and examined in evidence to prove any of these conflicting contentions. The proposed exclusion of international law seems also strangely at odds with the Appellate Body observation in the Gasoline case that ‘the General Agreement is not to be read in clinical isolation from public international law’, a statement which could be interpreted to mean that Article XX could, in certain circumstances, be relied upon to justify measures taken to protect global commons (globally shared environmental resources) or resources located outside the territory of a member, provided that the other conditions of application of the relevant exception in Article XX were complied with.

116. The EC too considered that sea turtles might be regarded as an ‘exhaustible natural resource’, as determined by the Panel Report on Canada - Measures Affecting Exports of Unprocessed Herring and Salmon, adopted 22 March 1988, BISD 35S/98.

117. UN Doc. A.CONF.62/122, Articles 61(2), 61(4) and 119(1)(b).

118. Agenda 21: Programme of Action for Sustainable Development, United Nation Conference on Environment and Development (UNCED), 3–14 June 1992, Rio de Janeiro, Brazil.

119. WT/DS58/AB/R, 12 October 1998.

120. Only some 18 of some 180 agreements for the protection of the global environment and conservation of natural resources contain trade restrictions either to regulate trade which harms the environment or to restrict trade with non-parties as an incentive to accede to the particular treaty, Schoenbaum, T., ‘Towards a comprehensive approach to International Economic Law’, in Heere, W.P., ed., Contemporary International Law Issues: New Forms, New Applications (T.M.C. Asser Instituut, The Hague 1998) p. 293.Google Scholar

121. See for instance the unsuccessful claims by the European Community in the Beef Hormones case that the ‘precautionary principle’ is one of customary international law, and by the US in the Shrimp-Turtle case that TEDs have become a recognized multilateral environmental standard.

122. The World Bank, Global Economic Prospects and the Developing Countries (1997) pp. 36, 73.Google Scholar

123. The creation of the Group was inspired by the Communication from the Commission to the Council, ‘Towards an International Framework of Competition Rules’, COM (96)284 final, of 18 June 1996; cf., Arhel, P., ‘Dimension internationale du droit de la concurrence’, Revue du Marché Commun (1997) Nr. 410Google Scholar; similar ‘interactive’ issues are explored in a simultaneously established WTO ‘Working Group on the Relationship between Trade and Investment’.

124. A Chairman's checklist of issues regarding ‘stocktaking and analysis of existing instruments’ comprised three topics: national competition policies, laws and instruments as they relate to trade; bilateral, regional, plurilateral and multilateral agreements and initiatives; and existing WTO provisions; cf. Annex I to the Group's Report (1997) to the General Council, WT/WGTCP/1, 28 November 1997.

125. United Nations Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices, of 5 December 1980, 19 ILM (1980) p. 813; see also the ‘Model Law on Restrictive Business Practices’ of UNCTAD's Intergovernmental Group of Experts on Restrictive Business Practices, Doc. TD/B/RBP/81/Rev.3 of 2 August 1994.

126. The Third UN Review Conference held in November 1995 affirmed the fundamental role of competition law and policy, and recommended to the General Assembly to convene a fourth such Conference under UNCTAD auspices in the year 2000.

127. See e.g., the Agreement between Canada and the United States of 1 August 1995, 35 ILM (1996) 309; two EC-USA Agreements contain the new principle of ‘positive comity’: the Agreement between the EC and the Government of the USA. Regarding the Application of Their Competition Laws, and the exchange of interpretative letters dated May 31 and July 31, of 23 September 1991, 30 ILM (1991) 1487; and the Agreement between the EC and the Government of the USA. on the Application of Positive Comity Principles in the Enforcement of their Competition Laws, of 4 June 1998, 37 ILM (1998) 1070; on the cooperation between competition authorities of Central and East European Countries and the European Commission based on the ‘Europe Agreements’ see Böhnel, G., ‘Die Auswirkungen der Europa-Abkommen auf das Wettbewerbsrecht der Staaten Mittel-und Osteuropas’, Europäische Zeitschrift für Wirtschaftsrecht (1998) Heft 4, pp. 111–116Google Scholar; Parisi, J.J., ‘Enforcement Co-operation Among Antitrust Authorities’, 20 European Competition Law Review (1999) 133–142.Google Scholar

128. See Tharakan, P.K.M. and Lloyd, P.J., ‘Competition Policy in a Changing International Economic Environment: An Overview’, 21 The World Economy (1998) pp. 997–1002.CrossRefGoogle Scholar

129. Panel Report on ‘European Community - Payments and Subsidies paid to Processors and Producers of Oilseeds and related Animal-Feed Protein’, adopted on 25 January 1990, BISD 37S/86.

130. Competition law typically covers at least potential restrictions relating to horizontal restraints, vertical restraints and abuses of a dominant position; merger control review is also generally considered a very important component of competition law.

131. For a thoroughly critical review of that academic debate see Cottier, T. and Schefer, K., ‘The Relationship between world Trade Organization Law, National and Regional Law’, 1 Journal of International Economic Law (1998) pp. 83–122.CrossRefGoogle Scholar

132. Arts. 85–94 EC; see also relevant provisions of the Australia-New Zealand Closer Economic Relations Trade Agreement (ANZCERTA) and of the Agreement Establishing the European Economic Area (EEA); see Nicolaides, P., ‘For a World Competition Policy in Economic Integration and the Role of Regional Blocs in Internationalizing Competition Police’, 30 Journal of World Trade (1996) p. 131.Google Scholar

133. Arts. VI, XVII GATT; Arts. VIII, IX GATS; 4th GATS Protocol on Basic Telecommunications, see Hummer and Weiss, op. cit. n. 68, 1067; Point 1.1 of an informal Reference Paper on regulatory disciplines refers to the ‘prevention of anti-competitive practices in telecommunications’, 36 ILM (1997) 367.; Arts. 31(k), 40 TRIPS; Art. 9 TRIMS.

134. For a comprehensive account of the whole academic debate see Petersmann, E.U., ‘The Need for Integrating Trade and Competition Rules in the WTO World Trade and Legal System’, PSIO Occasional Paper, WTO Series Nr. 3, The Graduate Institute of International Studies, Geneva (1996) p. 7Google Scholar; idem, Reflection Paper, in European Commission, Competition Policy in the New Trade Order: Strengthening International Cooperation and Rules (1995) p. 43.

135. The 1883 Paris Convention on the Protection of Industrial Property merely envisaged ‘effective protection against unfair competition’, but did not attempt to protect freedom of competition and consumer welfare, for instance against market segmentation through patents, see Art. 10 bis.

136. Cf., the extraterritorial application of domestic competition law (EC, USA) to anti-competitive practices abroad, non-binding multilateral guidelines (UNCTAD 1980, OECD 1986) and bilateral agreements for the coordination of domestic competition laws.

137. Protection of international market integration and cross border transactions against both governmental barriers to market access (public undertakings, enterprises with privileged status) and private restrictive practices distorting trade (trade restricting patent misuse; anti-competitive licensing agreements); the case for a regional approach to competition policy is made by Bilal, S. and Olarreaga, M., ‘Regionalism, Competition Policy and Abuse of Dominant Position’, 32 Journal of World Trade (1998) pp. 153–166.Google Scholar

138. Governmental measures which continue to be more serious impediments to trade than purely private restrictive practices include: textiles, clothing; certain agricultural products; anti-dumping measures against competitive low-cost imports especially from newly industrializing economies; e.g. under GATT Articles VI, XVI, XVII; VERs; Petersmann who accepts that premise, nonetheless vigorously advocates a set of additional WTO competition rules, loc. cit. n. 134, pp. 19, 25 et seq.

139. Art. 46.1, chapter V on Restrictive Business Practices; Art. 48.7 enabled the ITO to request a member to abate a restrictive practice as defined in Art. 46 by ‘every possible remedial action’.

140. See, however, para.7(iii) of the Ministerial Declaration of 1982, according to which contracting parties undertook to abstain from taking restrictive trade measures, for reasons of a non-economic character, not consistent with the GATT.

141. Art. III; Arts. II, XXVIII; Arts. VI, XIX, XX.

142. E.g., public morals, human, animal or plant life or health (Art. XX GATT); import-competing industries against serious injury including unemployment caused by competititively priced imports (Art. 4 (2)(a) Agreement on Safeguards).

143. Petersmann, loc. cit. n. 134, p. 15.

144. Resolution of 5 November 1958 on the appointment of a group of experts, BISD 7S/29; Decision of 18 November 1960 on Arrangements for consultations on restrictive business practices, BISD 9S/28.

145. On Article III measures see e.g. Panel Report on ‘United States - Measures Affecting the Importation, Internal Sale and Use of Tobacco’, adopted on 4 October 1994, BISD 41S Vol.I/131; Panel Report on ‘United States-Measures Affecting Alcoholic and Malt Beverages’, adopted on 19 June 1992, BISD 39S/206; on Article XI see Panel Report on ‘EEC-Regulation on Imports of Parts and Components’, adopted on 6 May 1990, BISD 37S/132; Panel Report on ‘Thailand-Restrictions on Importation of and Internal Taxes on Cigarettes’, adopted on 7 November 1990, BISD 37S/200.

146. Panel Report on ‘Japan-Trade in Semiconductors’, adopted on 4 May 1988, BISD 35S/116, 162; see also the ‘Good Offices Report by the Personal Representative of the Director General on the Dispute between the EC and Japan concerning certain Pricing and Trading Practices for Copper in Japan’ which did not accept the EC's claim of the existence of a government assisted producer cartel, BISD 36S/199, 201.

147. Panel Report on ‘Japan - Measures Affecting Consumer Photographic Film and Paper’, WT/DS44/R, 31 March 1998, Furse, M., ‘Japan - Measures Affecting Consumer Photographic Film and Paper’, European Competition Law Review (1999) pp. 9–13.Google Scholar

148. See Bronckers, M. & Larouche, , ‘Telecommunicatiions Services and the World Trade Organization’, 31 Journal of World Trade (1997) pp. 4 et seq.Google Scholar

149. Negotiation strategies include: sectoral GATS Protocols, economy-specific Accession Protocols, additional general WTO rules, and Plurilateral Trade Agreements under Annex 4 to the WTO Agreement.

150. Art. VIII GATS on Monopolies and Exclusive Service Suppliers: monopolies and exclusive service suppliers must not operate inconsistently with members' MFN obligations and specific commitments under the GATS; Art. IX: recognizes that certain other business practices may restrain competition and thereby restrict trade in services; Art. XVIII of the 1997 Agreement on Telecommunication Services requires scheduling of pro-competitive regulatory principles as ‘additional commitments’, 36 ILM (1997) 354; Art. 40 TRIPS on control of anti-competitive practices in contractual licences contains provisions on ‘unfair trade’ and on antitrust rules combatting restraints of competition in order to ‘ensure that measures and procedures to enforce intellectual property rights (IPRs) do not themselves become barriers to legitimate trade’ (Preamble); Arts. X,XV,XX Agreement on Government Procurement; Arts. 3,4,8 TBT Agreement; Arts. 11(1)(b), 11(3) Agreement on Safeguards; for further detail on these provisions see Malaguti, M.-C., ‘Restrictive Business Practices in International Trade and the Role of the World Trade Organization’, 32 Journal of World Trade (1998) p. 117, at 123 et seq.Google Scholar

151. Art. 9 TRIMS Agreement; Art. 6 Agreement on Pre-shipment Inspection.

152. Petersmann, strongly advocates international competition rules in form of a plurilateral WTO Agreement based on its Annex 4, applicable to various WTO areas, see ‘The Need for Integrating Trade and Competition Rules in the WTO World Trade and Legal System’, in Parry, G., Qureshi, A. and Steiner, H., eds., The Legal and Moral Aspects of International Trade (1998)Google Scholar; E.U. Petersmann, loc. cit. n. 134, pp. 22, 30; Petersmann, E.U., ‘International Competition Rules for Governments and for Private Business’, 30 Journal of World Trade (1996) pp. 5 et seqGoogle Scholar; Petersmann, E.U., ‘Proposals for Negotiating International Competition Rules for the GATT-WTO World Trade and Legal System’, 49 Aussenwirtschaft (1994) pp. 61–96Google Scholar; Fox, E.M., ‘Toward World Antitrust and Market Access’, 91 AJIL (1997) pp. 1–25CrossRefGoogle Scholar; Fikentscher, W., Immenga, U., Draft International Antitrust Code (1995)Google Scholar; for critical comment on the Code see Gifford, D.J., ‘The Draft International Antitrust Code Proposed at Munich: Good Intentions Gone Awry’, 6 Minnesota Journal of Global Trade (1997) pp. 1–66Google Scholar; Schoenbaum, J., ‘The International Trade Laws and the New Protectionism: The Need for a Synthesis with Antitrust’, 19 North Carolina Journal of International Law and Commercial Regulation (1994) pp. 393–436Google Scholar; Fikentscher, W., ‘Competition Rules for Private Agents in the GATT/WTO System’, 49 Aussenwirtschaft (1994) pp. 281–325Google Scholar; Mavroidis, P., ‘The World Trade Organization Enlarged Competence: From Standard Setting to Implementation’Google Scholar, in Heere, op. cit. n. 120. at p. 234; for a critical stance on the need for competition provisions in the TRIPS, see D. Wood, ibid., p. 242.

153. That approach is advocated, inter alia, by the European Commission, op. cit. n. 120; Ehlermann, C.D., ‘The International Dimension of Competition Policy’, 17 Fordham ILJ (1994) p. 883Google Scholar; Hoekman, B., ‘Competition Policy and the Global Trading System’, 20 The World Economy (1997) p. 383.CrossRefGoogle Scholar

154. See Fox, loc. cit. n. 152, at pp. 23–24.

155. See the UNCTAD study ‘Empirical Evidence of the Benefits From Applying Competition Law and Policy Principles to Economic Development in Order to Attain Greater Efficiency in International Trade and Development’, TD/B/COM.2/EM/10, of 18 September 1997.

156. See Lloyd, P.J., ‘Multilateral Rules for International Competition Law?’, 21 The World Economy (1998) p. 1129, at 1143CrossRefGoogle Scholar; for a nuanced assessment of the prospects for negotiations on competition rules during the forthcoming ‘millennium’ Round of trade negotiations, see Arhel, P., ‘Droit International de Concurrence, s'oriente-t-on vers des négotiations?’, Revue du Marché Commun (1999) Nr. 425, p. 84.Google Scholar

157. In Art. 1(5) of the WTO Agreement on Textiles and Clothing members agree on the need for ‘increased competition in their markets’, but pursue this objective through liberalisation of governmental trade barriers.

158. E.g., regarding product standards, services trade, commercial presence in the importing country, Petersmann, loc. cit. n. 134, p. 19; Hoekman, op. cit. n. 153, p. 404.

159. See e.g., Arts. IX GATS; 40 TRIPS; 9 TRIMS.

160. E.g., anti-dumping measures: Art. 3.5 Anti-Dumping Agreement; other safeguard measures: Art. 11 Agreement on Safeguards.

161. Art. 3.1 Agreement on Safeguards.

162. More than half of the 135 members of the WTO have not yet adopted competition rules, see Arhel, op. cit. n. 156, p. 86; a multilateral method to deal with cross-border enforcement problems in the WTO might consist in the enforcement of existing competition laws by foreign private parties, subject to WTO dispute settlement, see Mattoo, A., Subramanian, A., ‘Multilateral Rules on Competition Policy: A Possible Way Forward’, 31 Journal of World Trade (1997) pp. 95–115Google Scholar

163. WTO Annual Report 1997, pp. 50–51.

164. E.g. on prohibition on price,- output,- and export cartels; international coordination of merger control policies etc.

165. Paemen, H., ‘Trade and Competition in the Transatlantic Area’, 21 Fordham ILJ (1998) p. 637, at 649.Google Scholar

166. Raúl, Ferrero, The New International Economic Order and the Promotion of Human Rights (United Nations, New York 1986) para. 293.Google Scholar

167. Art. 28 of the Universal Declaration of Human Rights; Principle 3 of the Declaration of the United Nations Conference on Environment and Development, Rio de Janiero, 3–14 June 1997, 31 ILM (1992) p. 814; paras. 8 and 10 of the 1993 Vienna Declaration and Programme of Action, adopted on 25 June 1993 at the Vienna World Conference on Human Rights, 14–25 June 1993, 32 ILM (1993) p. 1661.

168. Para. 11 of the 1993 Vienna Declaration and paras. 66–67 of the Programme of Action, adopted at the Vienna World Conference on Human Rights; Kane, M.J., ‘Promoting Political Rights to Protect the Environment’, 18 Yale JIL (1993) p. 389.Google Scholar

169. Statement by the Brazilian President Fernando Henrique Cardoso on the occasion of the 50th anniversary of GATT, http://www.wto.org/wto/anniv/cardoso.htm