EXPLORING THE ENVIRONMENTAL EXCEPTIONS IN GATT ARTICLE XX

It would be convenient if the new crop of trade issues would wait for the existing fields to get harvested. But in 1991, the long-dormant topic of "trade and the environment" seems to be sprouting up everywhere.

In Geneva, the GATT Council is considering a proposal by the European Free Trade Association countries to convene the Group on Environmental Measures and International Trade. Although established by the Contracting Parties in 1971, this Group has never met. The environment is also at issue in a trade dispute between Mexico and the United States now before a GATT panel. The Mexican complaint stems from the U.S. Marine Mammal Protection Act which bans imports of tuna from countries whose tuna harvesting methods are more lethal to dolphins than the American standard permits.

In Washington, the Bush Administration succeeded in gaining Congressional approval for a two-year extension of "fast track" procedures for the Uruguay Round and a proposed free trade arrangement with Mexico. Yet this approval came only after the Administration promised to include environmental issues "related to" trade within the Mexican accord and to invite environmentalists to participate on six of the official advisory groups to the U.S. Trade Representative. Many environmental organizations have been critical of the GATT as an agreement and as an institution. They believe that the GATT views ecosystem protection as a nettlesome non-tariff barrier instead of an overriding goal.

In Tokyo, the Japanese government recently agreed to cease importing olive ridley and hawksbill sea turtles. The shells from these two endangered species are fabricated into jewelry, combs, and eyeglass frames. The Japanese government acted to head off possible trade retaliation by the Bush Administration against Japanese wildlife products such as furs and aquarium fish.

At the London Economic Summit earlier this year, the Heads of State and Government of the G-7 agreed to look to the GATT "to define how trade measures can properly be used for environmental purposes."

Around the world, planning is underway for the UN Conference on Environment and Development to be held in Rio de Janeiro in 1992. The use of trade measures is likely to be discussed in relation to new agreements on global warming, deforestation, and biodiversity.

At this time, opinions differ as to whether the growing interest in the connection between trade and the environment should be viewed as a blooming of "sustainable development" or a weed of "eco-protectionism." But one conclusion seems clear. New attitudes about the GATT are definitely taking root.

In thinking about whether the GATT needs to be "greened," as some environmentalists have urged, one might start by exploring the environmental provisions currently in the GATT. Article XX (General Exceptions) states that

What does this Article have to do with environmental protection, it could be asked. The word "environment" is not even mentioned. According to one treatise on the "trade and environment" linkage, "Environmental protection was simply not a public issue in 1947" when Article XX was drafted "nor was this provision intended for that purpose."

This study will offer a different interpretation of what the GATT says about the environment. Part I will review the history of Article XX to see what might have been the intention of those who wrote it. Part II will analyze some of the issues that arise in the adjudication of Article XX -- in light of the handful of pertinent decisions by the Contracting Parties.

Trade regulations to protect human, animal, or plant life began a long time ago, but it was not until the 1870s that major commercial disputes broke out over veterinary and quarantine restrictions. While this article will not attempt to cover sanitary and phytosanitary laws as such, one cannot always differentiate them from laws aimed at ecological protection. In a sense, all sanitary restrictions are environmental too. As used here, however, the term "environment" will not include trade measures primarily designed to promote agriculture or enhance food safety.

Utilizing trade tools to achieve environmental objectives is not a new idea. From the advent of international environmental cooperation, governments have recognized how efficacious import and export measures could be in dealing with problems that flow beyond national borders. For example, one of the earliest multilateral treaties concerning the environment -- the 1900 Convention for the Preservation of Wild Animals, Birds and Fish in Africa -- called for a system of export licenses for certain species "because of their rarity and danger of disappearance."

Although most of these laws were aimed at imports, a few focused on exports. For example in 1891, the Secretary of Agriculture was authorized to establish rules for shipping cattle to foreign countries in order to assure the "humane treatment of such animals." Vessel owners failing to meet the ventilation, space and related requirements could be denied export clearances for up to a year.

The International Convention for the Abolition of Import and Export Prohibitions and Restrictions was the world’s first trade round. Though nearly forgotten today, the Convention is important not only for its influence on the GATT (particularly Article XX), but also for the lessons it leaves on the difficulty of achieving a liberal trading system. The treaty called for no less than the abolition of all import and export restrictions (excluding tariffs) within six months.

To be sure, the treaty did leave a loophole by permitting nations to maintain restrictions protecting "vital interests." Recourse to this exception, however, was to occur only in "extraordinary and abnormal circumstances." The treaty also allowed nations to grandfather in existing restrictions temporarily, which many of the 29 signatories did. (For example, Japan reserved on rice.) Nevertheless, the Convention was a significant achievement in international law which might have cooled off the protectionist impulses of the era had the agreement gone into full force. Although 21 nations ratified it, including the United States, the refusal of Poland to accede doomed the treaty because so many of the ratifications were contingent on Poland’s approval.

Although the Convention permitted the traditional exceptions, it made them subject to this condition:

Before the "disguised restriction" proviso was agreed to, the draft convention had required that measures not be "applied in such a way as to constitute a form of economic protection in favour of national production."

To summarize, three principles from the 1927 Convention are especially noteworthy. First, even at a conference called to achieve the "final suppression" of import prohibitions, there was general agreement that legitimate action to protect public health, animals or plants was entirely proper. Second, in a break with the past practice of most trade treaties, the customary exceptions for national laws were no longer unqualified. Although dispute settlement remained voluntary, a multilateral standard for conditionality was established. Third, because of their interrelationships, the sanitary, veterinary, phytopathological and nature preservation objectives were encompassed under the same exemption.

In the 20 years following the International Convention, trade measures were regularly employed in pursuit of environmental goals. In 1929, a multilateral treaty pledged parties "to supervise the importation of plants" in order to prevent the spread of plant diseases or pests. In 1933, the London Convention for the Preservation of Fauna and Flora in Their Natural State prohibited importing and exporting specified animals, trophies, or ivory horns from African territories without a certificate.

In the United States, the Tariff Act of 1930 banned the importation of "any part or product of any wild animal or bird, whether raw or manufactured" if taken in violation of the laws of the exporting country. After U.S. ratification of the Halibut Fishery treaty with Canada in 1937, the Congress banned the importation of halibut caught in violation of the treaty, and established penalties for possessing halibut "caught incidentally to fishing for other species." The penalties included forfeiture of cargo and, after a second offense, the vessel itself.

The vast majority of bilateral trade agreements of the period included an exemption for animal or plant laws. For example, the Sweden-Turkey commercial agreement of 1928 exempted "prophylactic measures against. . . diseases, deterioration or disappearance of useful plants." The Canada-Mexico trade agreement of 1946 exempted restrictions "imposed for the protection of plants or animals, including measures for protection against disease, degeneration or extinction . . ." Out of the 28 reciprocal trade agreements negotiated by the United States between 1934 and 1946, two used the "degeneration or extinction" language,  fifteen exempted restrictions "designed to protect human, animal or plant life or health," ten did not include the word "health," and one had no exemption. There was also wide variation with respect to disciplining national actions. Although some trade treaties after 1927 applied both the non-discrimination and disguised restriction conditions, most agreements applied only non-discrimination, and a few applied neither condition.

GATT Article XX is based on Article 43 of the draft charter for the International Trade Organization (ITO) approved at the second session of the preparatory committee of the UN Conference on Trade and Employment. A brief review of the chronology may be helpful. The first preparatory session produced the "London Draft" in November 1946. A special committee developed the "New York Draft" in February 1947. The second preparatory session approved the "Geneva Draft" in August 1947. The GATT was signed in October 1947. Finally, the UN Conference in Havana adopted the ITO Charter in March 1948.

Although there is no "legislative history" specifically for GATT Article XX, one can gain insight from the ITO deliberations regarding the same General Exceptions. Because the provisions of Article XX(b) and (g) are identical to the Geneva draft except for technical points, a review of the evolution of the ITO charter is quite relevant in ascertaining preparatory intent.

Article XX Preamble - The first draft charter for the ITO came in the U.S.-British proposal of December 1945 which provided for the customary trade exceptions but permitted them unconditionally. At the London session, several delegates suggested applying conditions to the exceptions in order to guard against "indirect protection." The British delegate offered a specific amendment -- that trade measures could not be "applied in such a manner as to constitute a means of arbitrary discrimination between countries where the same conditions prevail, or a disguised restriction on international trade." Although this proposal was accepted at the subcommittee level, no agreement was reached on the General Exceptions as a whole in London. At New York, the two conditions were incorporated into the preamble, which then remained intact (except for technical conformity) through Geneva and Havana. It should be noted that the "arbitrary discrimination" proviso no longer applied to just foreign countries, as it did in 1927. This suggests that the proviso may incorporate the principle of national treatment as well as non-discrimination.

Article XX(b)- The U.S.-British proposal included an exception for measures "necessary to protect human, animal or plant life or health." Based on a suggestion by the delegate from Belgium-Luxemburg, this provision was modified in the New York Draft to require "corresponding safeguards under similar conditions" in the importing country. At Geneva, however, this modification (and a proposed explanatory note) was reconsidered and abandoned on the grounds that the language was confusing and that the preamble accomplished the same purpose. At Havana, no other changes were considered.

By looking narrowly at the drafting process for Article XX(b) between 1946 and 1948, one could reach the conclusion that the intent was to cover only sanitary restrictions. During the limited debate on this provision, there was no explicit avowal of an environmental purpose. Moreover, the term "sanitary" was commonly used to characterize Article XX(b) and appeared in that context in the original GATT Article XXII (Consultation).

But drawing such a conclusion from the ITO deliberations alone would neglect the historical background that so clearly shaped Article XX(b). The reason why there was no comprehensive debate on the scope of this exception at the UN Conference is that the debate had already taken place -- 20 years earlier. Since the exception in the ITO charter was equivalent to what the 1927 Convention and many bilateral treaties had, there would have been little point in rehashing the obvious. ("Almost boilerplate" was the way that Clair Wilcox once described the exceptions.) Certainly, no delegate argued that existing environmental treaties and laws should not be covered by the General Exceptions. Moreover, the United States -- the author of the language ultimately adopted -- clearly believed that Article XX(b) would countenance existing U.S. trade laws, which included environmental as well as sanitary measures.

Article XX(g)- The United States "Suggested Charter" of September 1946 provided an exception for measures

Fish and Wildlife- The issue of fishery agreements arose several times in the drafting of the chapter on Intergovernmental Commodity Arrangements. While this chapter was not included in the GATT, the debate on exceptions to commodity rules merits examination because of its bearing on Article XX. The first provision came in the New York Draft which added a complete exception for "international fisheries or wildlife conservation agreements with the sole objective of conserving and developing these resources."

In summary, three points should be highlighted. First, since the very purpose of the GATT was to bring trade restrictions under international discipline, extreme caution is required in using such restrictions to limn the intention of GATT’s authors. Yet if there are any GATT provisions whose scope and meaning can be inferred inductively by the national laws in existence at the time, surely it would be the General Exceptions. This approach seems particularly justified for subparagraph (b) of Article XX which appears in the GATT in exactly the same language as was proposed in 1945. While the UN Conference did seek to make it harder for countries to abuse the General Exceptions, the new discipline was attained by attaching two conditions to the preamble of Article XX, not by narrowing the scope of the biological exception.

Second, while the term "exhaustible natural resources" appears to have started out as a reference to minerals, a good case can be made that since the commodity drafting group at Geneva intended the term to cover living resources also, this same interpretation should carry over to the Commercial chapter. (The opposite conclusion could also be supported -- that the authors of Article XX(g) understood "exhaustible natural resources" to be finite raw materials.)

In the first 30 years of the GATT, almost nothing happened regarding Article XX(b) and (g). Although parties adopted new treaties and laws (and continued enforcing existing ones) that used trade tools to achieve environmental objectives, these actions engendered no controversy in the GATT. For example in 1973, the Washington Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) restricted imports and exports of certain species.

The "environment" entered the GATT regime in 1979 in the Agreement on Technical Barriers to Trade (the Standards Code). The protection of the environment was listed as one justification for not using relevant international standards. It was not until the early 1980s, however, that trade disputes led to decisions by the Contracting Parties which delineated the meaning of the environmental exceptions. Part II will explore the main issues of Article XX(b) and (g) in light of these recent GATT panel reports.

"Discrimination"- Article XX provides for exceptions that permit GATT violations. To qualify for any of these exceptions, however, national measures must not involve "arbitrary or unjustifiable discrimination between countries where the same conditions prevail." So far, no measure has been found in breach of this condition.

"Disguised Restriction"- The history of this condition suggests that it was intended as a check against attempts to mask protectionist pursuits in sanitary or environmental guise. A less stringent interpretation, however, has emerged in GATT conciliation. In the 1982 case "United States- Prohibition of Imports of Tuna and Tuna Products from Canada," the panel found that since the U.S. restrictions "were taken as a trade measure and publicly announced as such," they should not be considered disguised. In the 1983 case "United States- Imports of Certain Automotive Spring Assemblies," the panel found that what needed to be examined was not the "trade measure itself, but rather the application of the measure." The panel then concluded that since the exclusion order in question was "published in the Federal Register" and based on a valid patent whose infringement had been clearly established, there was no disguised restriction.

By leaning so heavily on one connotation of "disguised," these GATT decisions suggest that the transparency of a trade measure can be an exonerating factor. In other words, a blatantly protectionist measure might pass the "disguised restriction" test precisely because of such blatancy. The United States has voiced disagreement with the interpretation that "a measure could not be considered to be a disguised restriction simply because it had been publicly announced."

A more strictly interpreted "disguised restriction" condition would be an important bulwark against abuse of Article XX. Determining when an environmental measure is really a protectionist measure is not an easy task. (Perhaps that is why the panels avoided it.) But having a multilateral organization make such judgments was certainly an expectation of the authors of the GATT.

"Necessary"- Although the term "necessary" appears in many bilateral treaties in the context that it is used in Article XX(b), there is little historical evidence that helps in defining the term. Over the past few years, however, two GATT panels have constructed a far-reaching interpretation that could nullify this exception.

In a case decided in 1989 regarding "Section 337 of the Tariff Act of 1930," the United States cited Article XX(d) to defend its enforcement of patent laws. Article XX(d) exempts measures

In reaching its decision the panel established the following test: A measure would not be considered necessary under Article XX(d) if an "alternative measure" were "available" which was not inconsistent with other GATT provisions and which a contracting party "could reasonably be expected to employ." Furthermore, if no GATT consistent measure were reasonably available, the contracting party would have to use the measure that "entails the least degree of inconsistency with other GATT provisions." The panel did concede, however, that "this does not mean that a contracting party could be asked to change its substantive patent law or its desired level of enforcement . . ." But the panel did not spell out the type of modifications that a contracting party could reasonably be asked to make.

Article XX(b) was a central issue in the 1990 case "Thailand- Restrictions on Importation of and Internal Taxes on Cigarettes." The panel concluded that "necessary" in Article XX(b) should be interpreted the way the Section 337 panel did for Article XX(d). Because other measures "were reasonably available to Thailand to control the quality and quantity of cigarettes smoked. . . ," the panel found that Thailand’s practice of permitting the sale of domestic cigarettes while not permitting the importation of foreign cigarettes was not "necessary" within the meaning of Article XX(b).

Several observations can be made about this interpretation of "necessary." First, while a requirement that parties use the measure that entails the least degree of GATT inconsistency may be a worthy objective, it is unclear how such a condition could so casually be read into the GATT. Although the 1927 Convention included a provision requiring parties to frame any restriction "in such a way as to cause the least possible injury to the trade of the other Contracting Parties," a rule of this type was never considered for Article XX. A better way to introduce the "least trade restrictive" condition into the GATT would be through new codes, as is currently being done in the negotiations on Sanitary and Phytosanitary measures and on Technical Barriers.

Second, the Section 337 decision raises a question of how a contracting party can predictably determine what method entails the "least degree of inconsistency" with other GATT provisions. All GATT provisions presumably would count in such a calculation. But how should one weigh an action inconsistent with Article XI, for example, against an alternative inconsistent with Article XIII? Moreover, if the "nothing in this Agreement" clause in Article XX means what it says, why are any conditions outside of the preamble relevant?

Third, a new standard which states that only the least GATT-inconsistent method is "necessary" can lead to many kinds of mischievous results. Take Article XX(b) for example. Bans on importing ivory could be challenged on the grounds that a more effective (and more GATT consistent) way to save African elephants is to privatize them. Any quarantine could be vulnerable to the argument that domestic programs could yield equivalent or greater increments in improved public health. Or consider Article XX(a) which permits measures necessary "to protect public morals." Bans on importing pornography could be challenged on the grounds that public morals could be better protected by inculcating "proper" values.

If the new rule leads to challenges like these, there would be dangers to the GATT from inside and out. Attempts by the Contracting Parties to specify substantive standards for the "adoption or enforcement" of environmental measures could easily lead to internal deadlock. Conversely, if GATT succeeds in overruling any legitimate environmental restriction, the institution could find itself embroiled in controversy.

Fourth, although the Thai cigarette panel saw no reason why "necessary" should not mean the same in Article XX(b) as in Article XX(d), there is a distinction which can be drawn. Since Article XX(d) applies to measures "necessary to secure compliance with laws or regulations. . . ," considering other means of securing compliance seems appropriate. By contrast, Article XX(b) does not say "necessary to secure compliance with health regulations." It says necessary to protect health.

Fifth, it should be noted that the most straightforward mode of disqualifying the Thai law from Article XX -- the "disguised restriction" condition -- could not easily be used because earlier GATT decisions had taken the teeth out of it. Had that mode been available, the panel might not have perceived the need to extrapolate from Article XX(d).

"Relating to the conservation"- The landmark case for this provision was "Canada- Measures Affecting Exports of Unprocessed Herring and Salmon," decided in 1988. In adjudicating this dispute, the panel defined "relating to the conservation of exhaustible natural resources" to mean that a trade measure had to be "primarily aimed at" such conservation. While the panel did not offer any specific evidence from preparatory history to justify this definition, the new test does provide a constructive way to screen out measures with only a collateral relationship to conservation.

Unfortunately, this definition has had a potentially inimical influence on dispute settlement under the Canada-U.S. Free Trade Agreement (which incorporates GATT Article XX by reference). In a 1989 case involving "Canada’s Landing Requirement for Pacific Coast Salmon and Herring," the binational panel -- inspired no doubt by the GATT Herring and Salmon panel -- decided that the time had come to write a definition for "primarily aimed at." Starting with the idealistic but dubious proposition that "governments do not adopt conservation measures unless the benefits to conservation are worth the costs involved," the panel hypothesized that Canada would not have employed the landing requirement if its own nationals had to bear the full costs of that measure. For this reason, the panel determined that the requirement was not primarily aimed at conservation. By applying a mode of analysis so inherently subjective, however, the panel leaves environmental regulations vulnerable to a broad array of challenges.

"Domestic production or consumption"- This proviso has been applied in two GATT cases involving the United States and Canada. In both disputes, the parties agreed that the fish stocks in question were an "exhaustible" natural resource. In the Tuna case, the panel found that an Article XX exception was not justified because the United States did not have restrictions on domestic consumption of tuna and because its restrictions on production did not extend to every kind of tuna being barred from Canada. In the Herring and Salmon case, the panel interpreted the proviso to mean that a trade measure had to be "primarily aimed at rendering effective" the domestic restrictions. In the opinion of the panel, the Canadian export prohibition at issue failed to meet this test.

The panel offered no rationale for why it looked for trade measures to bolster domestic restrictions rather than for trade and domestic measures to be complementary. But in requiring that trade measures facilitate a domestic program, the panel adds to the existing difficulties in utilizing Article XX(g) for renewable resources. One problem occurs when there is no domestic production or consumption to restrict. Consider, for example, a ban on importing wild exotic birds into a country that has no tropical forests. Or a marine mammal protection law in a country that does no fishing. How can such bans possibly render a domestic program effective? Other problems arise when the product being prohibited (e.g., tuna) is not the same as the product being conserved (e.g., dolphins). In a strict sense, neither tuna nor dolphins are being "produced." Dolphins are not being consumed and tuna are not being conserved. Certainly, the facts of that case can be fitted on to the Article XX(g) framework. But not without a little contortion.

One of the key legal issues facing the tuna-dolphin panel is whether the imported product must be the same one needing "protection" or "conservation." For Article XX(b), an extensive history shows that the products can be entirely different. Long before the 1927 Convention, the United States had import restrictions on animals for the purpose of protecting the life or health of humans, plants, or other animals. Moreover, there were also treaties and laws that restricted the importation of dead animals or animal parts (e.g., trophies). Since an import restriction cannot protect the life or health of a dead animal, Article XX(b) must logically be read as enabling restrictions that serve as a disincentive for animals to be killed.

Another key question being raised in the tuna-dolphin dispute is whether a trade measure can be used to protect foreign life or health. After noting the ambiguity in the GATT, most commentators have leaned toward the view that Article XX is limited to domestic life or health. But it is hard to reconcile a reading of domestic-only with the long history of environmental laws and treaties concerned with seals, match workers, fisheries, etc. -- in other countries as well as in the international "commons." In addition, foreign health has been protected with sanitary restrictions (e.g., inspection of meat exports), although many of these laws had commercial objectives too. At the Geneva meeting in 1947, an explanatory note was considered that might have limited the reach of Article XX(b) to domestic life or health, but this note was not adopted. With regard to conservation, it can be observed that intergovernmental fishery and wildlife agreements were made an exception to the Commodities chapter. Since these agreements, by definition, demonstrated a concern for foreign as well as domestic resources, this same concern, one could argue, applied to Article XX(g).

Quite apart from these legal points, the foreign-domestic distinction is being rendered obsolete by the increasing number of trans-border and global environmental problems. As it becomes more apparent that mankind shares one biosphere, the line between paternalism and domestic interests continues to fade away. One consequence has been a more frequent recourse to intrusive trade legislation.

During the early years of ecological awareness, the import restrictions were usually designed to assist foreign conservation efforts (e.g, the U.S. Tariff Act of 1930). In a few instances, nations did act unilaterally to stop environmentally harmful trade (e.g., feathers) or did act collectively against non-parties (e.g., the phosphorus match treaty). But most environmental efforts were premised on cooperation.

Beginning in the 1960s, however, there has been a growing willingness to use trade instruments to influence foreign environmental policies. For example, under the U.S. Trade Expansion Act of 1962, the President is empowered to raise duties on fish in order to pressure foreign governments to participate in good faith in negotiations on fishery conservation. The Pelly Amendment of 1971 authorizes trade retaliation against foreign actions which diminish the effectiveness of an international fishery program (but only if such retaliation is "sanctioned" by the GATT). More recently, the Montreal Protocol of 1987 obliges signatories to ban imports of chlorofluorocarbons (and by 1993 of products containing CFCs) from nations that have neither ratified nor complied with the treaty.

Assuming that the GATT does allow import restrictions to protect a foreign environment, it has been suggested that limitations will be needed. Otherwise, what would prevent a nation from banning all timber imports to save forests, or all meat imports to save animals, or all energy-intensive imports to save fossil fuels? If environmentalism runs rampant, the trading system may be put in jeopardy.

Of course, Article XX does set limits now. Any ban on imports must be done in a non-discriminatory and non-protectionist manner. If a country of vegetarians wants to prohibit all meat imports, that should not present any GATT problems. It is not GATT’s role to insist on trade or to judge the appropriateness of a herbivorous lifestyle. GATT’s role is to help prevent environmentally-framed trade restrictions from being used for commercial purposes.

Another issue involved in the tuna-dolphin case is whether a contracting party may establish standards for how products should be processed or manufactured, and then prohibit imports of "like products" not meeting these standards. For example, a law that discriminates between tuna harvested in a "dolphin-safe" manner and tuna harvested using dolphin encirclement techniques -- when the tuna itself is otherwise indistinguishable -- raises questions of conformity with the GATT obligations in Articles I, III, XI, and XIII. Presumably, Article XX could override these obligations if the specific processing standard meets the conditions in any of the General Exceptions.

There does not appear to be any ITO preparatory documentation on the question of whether Article XX(b) or (g) can sustain a processing standard. In view of the long history of trade measures that rely on processing standards, however, it would seem difficult to argue that the GATT precludes them. As noted above, there were many environmental treaties and laws pre-dating the GATT that conditioned animal imports on whether a product had (1) received an export license, (2) been hunted pelagically, (3) been taken in season, or (4) been caught with prohibited dragnets or traps. Certainly, the ITO authors were aware of fishery and wildlife treaties.

The question of using processing standards in environmental trade measures goes far beyond the tuna-dolphin dispute. Earlier this year, the European Community outlawed fur imports (beginning in 1995) from countries that permit the use of painful "leghold" traps. In July, a new U.S. law went into effect to ban the importation of fish from nations that allow "large-scale driftnet fishing."

Processing standards are also being used for pollution control. Under the Montreal Protocol, the parties have agreed to determine the feasibility of an import ban on articles produced with (but not containing) CFCs. The ban would apply to nations that have neither ratified nor complied with the treaty. If determined feasible, this ban would go into effect by 1995. Another proposal being advocated by environmentalists is an import embargo on logs from countries that do not require "sustainable" forest management practices.

Similar issues would arise with regard to recycling and packaging laws under consideration by several governments. For example, an importing nation might establish a "recycled content" requirement for newsprint, bottles, or automobile parts.

One classic study suggests that although the GATT may not allow individual governments to set pollution control standards for imports, "action taken on the basis of an intergovernmental agreement concerning maintenance of quality standards in a production process would be a different matter entirely. . ." It is true that the Contracting Parties could grant a waiver under Article XXV for an intergovernmental environmental agreement like the Montreal Protocol. The Contracting Parties could also recognize that certain conventions of wide application (e.g., CITES with 110 parties) have precedence over the GATT as a more recent treaty. But aside from these avenues, there does not seem to be any other basis for asserting that environmental trade restrictions pursuant to an international agreement have greater GATT blessing than restrictions conceived and carried out unilaterally.

It should be noted that some of the provisions in Article 43 of the Geneva Draft were linked to international agreement. For instance, the commodity exception had to be "undertaken in pursuance of obligations under inter-governmental commodity agreements." The short supply exception required such measures to be "consistent with any multilateral arrangements." So it would appear that the lack of any comparable linkage in Article XX(b) and (g) was not inadvertent. Indeed, the original reference to "international agreements" in Article XX(g) was dropped in the Geneva Draft. Although the new exception for fisheries, birds, and animals added at Havana did apply only to inter-governmental agreements, it would be hard to explain how a post-1947 amendment to the ITO charter could delimit the GATT.

A review of the history of Article XX demonstrates that it was designed to encompass environmental measures. There may be a few issues that do not fit the Article XX framework -- the preservation of scenic vistas perhaps. But just about everything else relates squarely either to the life or health of living organisms or to the conservation of truly exhaustible resources like clean air, fossil fuels, and stratospheric ozone. Whether Article XX achieves its intended purpose will depend upon how the Contracting Parties administer the exceptions vis-a-vis increasingly vigorous tools of enforcement. There is a danger that Article XX will be eviscerated through interpretation and that this myopic stance will backfire by making the GATT appear to be an obstacle to environmental progress.

If the "greening" of the GATT means that the Contracting Parties should respect environmental objectives in administering Article XX, then greening is a good idea. But if greening means that the Contracting Parties should subordinate economic goals to ecological imperatives, then greening is a bad idea -- for the environment and for the GATT. It is a bad idea for the environment because the GATT does not have the scientific expertise to judge what ecological measures are appropriate. It is a bad idea for the GATT because environmental policy would be too divisive for GATT’s current decisionmaking structure.

The best thing the GATT can do for the cause of a more sustainable environment is to perform capably the function in which the GATT as an institution has a comparative advantage. That is, judging the legitimacy of non-tariff barriers proclaimed under the banner of the environment. Certainly, the Contracting Parties cannot turn freer trade into an antidote against an unhealthy environment. But they can attempt to identify protectionist policies that squander resources and diminish a society’s capacity to pay for environmental rehabilitation. The challenge for the GATT in the 1990s will be to carry out this difficult role in the face of enormous scientific uncertainty, intense public scrutiny, and an awareness that there is no appeal from irreversible deterioration of our planet, save to God.