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Provisions on general exceptions in Article XX
This Article recognizes that in order to protect the environment, contracting parties may take measures: “ (b) [n]ecessary to protect human, animal or plant life or health; ．．．(g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption; ．．．”. But Members should abide by the principle of non-discrimination, and environmental measures should not be 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. Usually, Members are careful to cite this Article because the terms “necessary” and “exhaustible” are so broad that it will cause trade disputes easily.
1-2 Provisions of Other Agreements in the System of the WTO Law
The Preamble to the Agreement Establishing the World Trade Organization
In the preamble to the WTO, there is specific reference to sustainable development and protection of the environment: “ [R]ecognizing that their relations in the field of trade and economic endeavors 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 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 enhance the means for doing so in a manner consistent with their respective needs and concerns at different level of economic development．．．“. The preamble makes clear that the WTO will seek the objectives of environmental protection and sustainable development within the framework of multilateral trading system.
The Agreement on Agriculture
Provisions directly relating to environmental protection in this Agreement are “domestic support”, which puts forward a term of “green subsidies”. The Agreement demands members to reduce progressively agricultural support with the exception of domestic measures that are aimed to protect the eco-environment including the “green-box” policy and direct green subsidies to farms, which can eliminate the harms of modern agriculture on environment.
The Agreement on the Application of Sanitary and Phytosanitary Measures
Most provisions in this Agreement are related to the protection of the environment. Pursuant to the Agreement, members can take any sanitary or phytosanitary measures applied to protect animal or plant life or health from risks arising from the entry, establishment or spread of pests, disease, disease-carrying organisms or disease-causing organisms; to protect human or animal life or health from the risks arising from additives, contaminants, toxin or disease-causing organisms in food, beverages or feedstuffs; and to protect human life or health from the risks arising from disease carried by animals, plants or products thereof, or from the entry, establishment or spread of pests; within the territory of the members.
The Agreement on Technical Barriers to Trade (TBT)
The Agreement recognizes each member shall not be prevented from taking technical measures necessary for the protection of human, animal or plant life and health, of the environment at the level it considers appropriate, subject to the requirement that they are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same condition prevail or a disguised restriction on international trade. But when members choose feasible measures aimed to certain objects of environmental protection, they should take those less-restriction trade measures. The Agreement encourages members to accept international standards, but it doesn''t demand members to adjust to domestic standards unreasonably. The Agreement also encourages members to accept trade measures aimed to the protection of the environment of other countries and treat them equally as domestic measures. It demands members to provide developing countries more time to adjust to provisions in the Ageement. Generally speaking, the Agreement authorizes governments to take technical measures aimed to environment protection, provided meeting some basic conditions.
The Agreement on Subsidies and Countervailing Measures
According to the Agreement, the “environmental subsidies” are acceptable provided they are beneficial to eliminate environmental burden and are taken in the best suitable way. If these subsidies meet the demands of non-actionable subsidies, they shall not be subject to dispute settlement procedure. Members can take actions against subsidies aimed to the protection of the environment only under the following circumstances: these subsidies are favorable to export of goods but injure the domestic industries of importing countries, or they are favorable to domestic industries but injure benefits accruing directly or indirectly to other members under GATT 1994 and trade interests.
General Agreement on Trade in Services (GATS)
The Articles 6,7 and 14 of GATS are relating to environmental protection. GATS stipulates each member can continuingly take all measures including those for environment of general application affecting trade in services in a reasonable, objective and impartial manner, and can take any measures affecting trade in services, consistent with Most-Favored-Nation Treatment and National Treatment, to protect the environment. It provides the environmental exception, namely, each member shall not restrict or discriminate international trade in services except to protect human, animal or plant life or health.
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