Journals / Uluslararası Ticaret ve Tahkim Hukuku Dergisi / 2016 / Cilt: 5 - Sayı: 2
EXTRATERRITORIAL ENVIRONMENTAL CONCERNS AND PUBLIC MORALS: TESTING THE LIMITS OF ARTICLE XX(A) OF THE GATT 1994 AFTER SEALS
- Pages
- 519–557
- DOI
- —
Abstract
Where states are of the opinion that concerns about environmental protection or animal welfare occurring outside their territory are not regulated appropriately by the responsible state or by the international community, they may resort to trade measures to address those concerns. However, to what extent can trade measures be used to address matters occurring outside the regulating state, and could states invoke the public morals exception to address these extraterritorial concerns? In ECSeals, the AB emphasized the systemic importance of determining the jurisdictional limitations of Article XX of the GATT 1994. This article takes a closer look at that question. It is argues that there is no territorial limitation to Article XX(a) of the GATT 1994, in contrast to the environmental exceptions. The risk to an uncontainable Article XX(a) is not its extraterritorial scope, but an overly broad definition and acceptance of public morals. It is suggested that panels should focus on the evidentiary question of public moral concerns: where a deferential approach should be adopted with regard to the validity of a public moral, a thorough analysis must be conducted with regard to the actual existence of the public moral. The article furthermore emphasizes the need to distinguish between proper public moral concerns and actual environmental concerns, which should be addressed under the environmental exceptions.
Özet
Where states are of the opinion that concerns about environmental protection or animal welfare occurring outside their territory are not regulated appropriately by the responsible state or by the international community, they may resort to trade measures to address those concerns. However, to what extent can trade measures be used to address matters occurring outside the regulating state, and could states invoke the public morals exception to address these extraterritorial concerns? In ECSeals, the AB emphasized the systemic importance of determining the jurisdictional limitations of Article XX of the GATT 1994. This article takes a closer look at that question. It is argues that there is no territorial limitation to Article XX(a) of the GATT 1994, in contrast to the environmental exceptions. The risk to an uncontainable Article XX(a) is not its extraterritorial scope, but an overly broad definition and acceptance of public morals. It is suggested that panels should focus on the evidentiary question of public moral concerns: where a deferential approach should be adopted with regard to the validity of a public moral, a thorough analysis must be conducted with regard to the actual existence of the public moral. The article furthermore emphasizes the need to distinguish between proper public moral concerns and actual environmental concerns, which should be addressed under the environmental exceptions.