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C. Article XX of GATT
In Article XX of GATT, it provides two exceptions of trade measures, which are: “…(b) necessary 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 of consumption;…”
These provisions could be used to justify some restrictions on trade or in products. “As the GATT Secretariat stated in 1992, ‘GATT rules, therefore, place essentially no constraints on a country’s right to protect its own environment against damage from either domestic production or the consumption of domestically produced or imported products. Generally speaking, a country can do anything to imports or exports that it does to its own products and it can do anything it considers necessary to its own production processed.’”
In the Tuna-Dolphin Case (more details discuss in the follow part), the extrajurisdictionality engendered an issue. The panel thought the Article XX (b) and (g) could not be extrajurisdictional; however, some commentators noted the reasons of the panel had quoted were weak and failed to take into account the historical factors of the exceptions.
Considering the report of Tuna-Dolphin Case, some trade officials suggested that a country could invoke Article XX (b) to cover any production that directly affected the life or health of people in the country, or any production located in the country, or to cover living organisms in the global commons.
D. Trade and Environment in Provisions of TBT
The TBT agreement covers the product technical requirements, which divides into two categories—technical regulations and standards (the former is mandatory, the latter is voluntary), and procedures.
Eco-labelling is a main issue about environment in TBT Committee and CTE Committee, which include “the applicability of the TBT Code of Good Practice to voluntary eco-labelling programmes … [which] based on non-product related PPMs are covered by the TBT agreement” . This is understood to mean these PPMs measure that relate to the final characteristic of the product. Another point should be mentioned is discrimination in Eco-labelling requirements and practices either trading partners or domestically-produced goods or imports and services. In respect to “non-product related PPMs”, developing countries propose how to ascertain whether the regulations to be used in protection domestic products purposes, and fear that their PPMs are considered harmful to developed countries’ environment.
TBT agreement requires the national regulations use the relevant international standards basically. Meanwhile, in tow conditions, a country still has a leeway to preserve its own regulations. One hand is based on the Most-Favoured Nation treatment or National treatment, under which imported products have a same status as products from any other country or domestic products. On the other hand, the ‘least trade restrictive’ test is invoked. With respect to TBT agreement, “national regulations ‘shall not be more trade-restrictive than necessary to fulfill a legitimate objective, taking account of the risks non-fulfillment would create’(Art. 2.2).”
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