Effects of WTO Laws and Policies on Environmental Protection: A Study

This essay delves into the intricate relationship between the World Trade Organization (WTO) and environmental protection, examining the effects of contradictory laws and policies of WTO members on WTO principles. The paper explores the WTO's operational approach, dispute settlement procedures, and the principles of non-discrimination, including Most Favored Nation Treatment and National Treatment. It investigates the general exceptions provided to WTO members and assesses the applicability of Article XX of GATT 1994, analyzing significant cases like the Shrimp and Turtle case and the Tuna-Dolphin I-II case. The essay further discusses the complications of adaptation and interpretation of Article XX, proposing necessary amendments to the Article XX standard, and provides a comprehensive analysis of the interplay between international trade regulations and environmental concerns.

The Effects of the Contradictory Laws
and Policies of WTO members toward
WTO Principle: The Study of the
General Exceptions and Case Study
Article XX under GATT/WTO Referred
for Environmental Protection !!!

Table of Contents
CHAPTER 1: INTRODUCTION....................................................................................................1
1.1 Background and operational approach of WTO...................................................................1
1.2 Dispute Settlement Procedure...............................................................................................2
1.3 Principles of non-Discrimination..........................................................................................4
1.4 Exceptions Provisions...........................................................................................................6
.........................................................................................................................................................7
CHAPTER 2: LITERATURE REVIEW.........................................................................................8
2.1Introduction............................................................................................................................8
2.2 Laws and Policies of World Trade Organization..................................................................8
2.3 Laws and policies of WTO members in aspect of protection of environment....................11
2.4 Evaluation of effect of Contradictory Laws and Policies of WTO members on WTO
Principles...................................................................................................................................13
2.5 Assessment of Article XX in terms of environmental protection.......................................14
CHAPTER 3: RESERACH METHODOLOGY...........................................................................16
3.1 Introduction.........................................................................................................................16
3.2 Research Philosophy and Approaches................................................................................16
3.3 Research Design..................................................................................................................17
3.4 Research Approach.............................................................................................................18
3.5 Research type......................................................................................................................18
3.6 Method of research..............................................................................................................18
3.7 Data collection....................................................................................................................19
3.8 Sampling techniques...........................................................................................................20
3.9 Data analysis.......................................................................................................................20
3.10 Validity and Reliability.....................................................................................................20
3.11 Limitations of Research....................................................................................................21
3.12 Ethical Considerations......................................................................................................21
CHAPTER 4: APPLICABILITY OF ARTICLE XX OF GATT 1994.........................................22
CHAPTER: 5 SIGNIFICANT CASE............................................................................................25
Shrimp and Turtle case..............................................................................................................25

Tuna-Dolphin I – II Case .........................................................................................................27
CHAPTER 6: THE COMPLICATION OF ADAPTATION AND INTERPRETATION OF
ARTICLE XX................................................................................................................................29
CHAPTER 7: THE NECESSARY AMENDMENT TO ARTICLE XX
STANDARD..................................................................................................................................33
CONCLUSION..............................................................................................................................35
REFERENCES..............................................................................................................................37
.......................................................................................................................................................40

CHAPTER 1: INTRODUCTION
1.1 Background and operational approach of WTO
Overview:
In modern era, the main focus of countries is on protection of environment. In this light,
World Trade Organization is a regulatory body which is established with a perspective to
regulation of trade conducted in between different countries of globe. It came into force on
January 01st, 1995 under Marrakesh Agreement, which was signed by 123 nations 1. Basically, it
was framed with a main objective to replace General Agreement on Tariffs and Trade.
It is considered as a largest International organization in economy across the world. It
functions in following arenas:
 It deals with regulation and direction of international trade in between its member
countries. It means that its main aim is to make sure that member countries are effectively
and efficiently conducting their operations of trade and practices across worldwide.
 It also renders a complete regulatory framework, with a main objective to negotiate trade
agreements 2.
 In addition to this, a dispute resolution procedure is established by world trade
organization in order to resolve disputes and conflicts that can occur in between their
member countries while trade. Moreover, World trade organization focuses on to resolve
disputes and other conflicts.
 Also, it attempts to fulfil all negotiations on Doha Development Round, which came into
force in 2001.
1
Altbach P. Higher education and the WTO: Globalization run amok. International
Higher Education. 2015 Mar 25(23)
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 The main operational approach of World Trade Organization, lies within an area that it
was recognised as a successor to GATT 3. On one hand, GATT only focused on to
conduct a trade in between trade in goods, while, on the other hand, World Trade
Organization mainly occupies in all aspects which can be classified as trades, services,
intellectual property and investments.
 In the end, World Trade Organization emphasises on trade with no discrimination,
enabling market growth with predictable conditions, to effectively promote fair
competition and enhancing and encouraging development, etc.
Aim: To identify the effects of contradictory laws and policies of members of WTO, towards
WTO principles.
Objectives: This dissertation has been interpreted with following objectives:
 To determine laws and policies of WTO.
 To identify laws and regulations of WTO members.
 To evaluate an effect of Contradictory Laws and Policies of WTO members toward WTO
Principles.
 To have an assessment of Article XX, in terms of environmental protection.
Research Questions:
1. What are the distinctive laws and policies of world trade organization?
2. What are different laws and regulations related to WTO members?
3. In what manner contradictory laws and policies of WTO members effect principles of
WTO?
4. What does Article XX comprise of?
1.2 Dispute Settlement Procedure
Dispute resolution procedure implies a process within which World Trade Organization
mainly focuses on to resolve or dismiss all the disputes and conflicts, that have arisen or might
arise in near future, among their member countries while conducting trade of goods and services
4. In addition to this, it can also be held that, in the year of 1994, all members of World Trade
Organization have marked their confirmation in terms of procedures and rules which governed
3 Blumberg BF, Cooper DR, Schindler PS. Business research methods. McGraw-hill
education; 2014.
4 Chang PL, Lee MJ. The WTO trade effect. Journal of International Economics. 2011 Sep
30;85(1):53-71
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the settlement of disputes and dispute settlement understanding. It is a notable fact that there are
various aspects, which gives rise to dispute. Disputes can arise under non violation nullification
of benefits claims. The main priority of WTO is on the effective management and dispute
resolution among members. In context of WTO, dispute resolution procedure can be elaborated
as follows:
 Consultations: First of all, if in accordance with an opinion of a members’ state that
method of trade that has been adopted by another country was not fair and it deprived
benefit from that said method then, it can ask another country, for a purpose of
consultations 5. In addition to this, outcomes of consultations should be analysed within
60 days.
 Establishment of a panel: In case of a failure in aspect of attainment of dispute
resolution by consultants within a period of “60 days”, then plaintiff state can ask for
institution of a panel. In addition to this, respondent state is not provided with an
authority to prevent or restrict any establishment of panel, until and unless as provided by
DSB by consensus. It should be established within “45 days” from the date of failure of
consultations.
 Report of Panel: In next step of dispute resolution procedure, panel assess and report is
prepared on the basis of facts 6. If Panel approves the bill or case of claimant, then
claimant wins and case will be dismissed, on the other hand, if bill is not in favour, then
defendant wins and case has been transferred for appellate review7. It should be
completed within a time period of 6 months.
 Final report to parties: In this step, the parties are provided with a final report and
judgment to both the parties and WTO members within the time period of 3 weeks. After
2 weeks, it is transmitted to all members of WTO.
 Adoption of report: In case, where there is no appeal established, within a time period,
then, report will be adopted by Dispute Settlement Body.
5 Cottier T, Malumfashi G, Matteotti-Berkutova S, Nartova O, De Sepibus J, Bigdeli SZ.
Energy in WTO law and policy. At; 2011.
6 Maggi G, Staiger RW. The role of dispute settlement procedures in international trade
agreements. The Quarterly Journal of Economics. 2011 Feb 1;126(1):475-515.
7 Davis CL. Why adjudicate?: enforcing trade rules in the WTO. Princeton University
Press; 2012 May 27
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In addition to this, dispute settlement understanding of World Trade Organization aims to
address the subject of retaliation and compliance. In addition to this, it can be held that
during the period of thirty days of report adoption, the concerned members state of WTO is
required to inform the DSB and state their intentions in regard to application of
recommendations and rulings as well.
1.3 Principles of non-Discrimination
It is a notable fact that World Trade Organization has incorporated various new norms,
disciplines and principles which lies within trade of goods and services among its member
countries. In addition to this, it can also be noted that all agreements and contracts of World
Trade Organization are lengthy and complex in nature, which is due to reason that it consists of
many legal texts and also covered wide range of activities.
Considering this, there are different principles framed by WTO, which can be
characterised as Principle of Non-discrimination. It is considered as a basic and most
fundamental provision of WTO, which act as a preamble of WTO agreement, through which
objectives can be attained by its member’s countries.
In addition to this, the Principle of Non Discrimination has been personified with two sub
types, which can be classified into Most Favoured Nation Treatment and other is National
treatment.
Most Favoured Nation Treatment:
Members of WTO are recognised as a members of a club. So, in this light, it is a basic
duty of a member, to render best possible outcome or grant, to another member, which will be
considered as a best possible outcome. Hence, each member is entitled to receive best possible
results and grant from its companions. Also, in WTO agreements countries and member states of
the country are not liable to discriminate among their member countries. Moreover, for the
purpose of Trade in Goods and services, MFN Principle ask each and every member of WTO, to
extend their area of services, in terms of treatment, which is not less than favourable, in
comparison to favour accorded to any other country 8.
In addition to this, it can be assessed that effective and key components of MFN principle
can be:
8 Eicher TS, Henn C. In search of WTO trade effects: Preferential trade agreements promote
trade strongly, but unevenly. Journal of International Economics. 2011 Mar 31;83(2):137-
53.
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 Any kind of privilege or advantage that has been covered in Article 1.1 of GATT articles.
It basically covers duties of customs, all sorts of charges which has been imposed on
import and export of goods and services and also all duties imposed on international
transmission of payments for exports and imports.
 Like or similar goods.
 The direct and unconditional grant of benefit at the time of issue of similar goods issued.
Furthermore, in accordance with the provisions of MFN principle, it imposes various
restrictions on Vanin’s Customs authorities, for prohibit it to levy a custom duty of 10%. Also, it
focuses on to grant WTO favourable treatment at the rate of 5 % to watches which are imported.
While, in this direction, it can also be assessed that some exceptions are made allowed,
which can be regarded as, for an instance, that countries can establish their own free –trade
agreement, which is only applicable to goods and services being traded and commercialised
within the same group area.
In the end, most favoured Nation Principle is a principle which involves an implication
that as and when, any member opens up or lower a trade barrier, it is authorised to perform the
same for similar services and goods from all its trading partners, irrespective of poor, weak or
strong.
National Treatment:
It is another principle under the provisions of World Trade organization, which signifies
its role in effective conduct of trade of goods and services. it is a principle which means that
there should be an equality among imported goods and goods and products which are
manufactured domestically 9. In other words, each members of a state are liable to treat or
consider all imports of goods and services, in a favourable manner like domestic material and
products. This provision is being described under Article III of GATT, 1994. This principle
mainly focuses on to the fact that all imported and domestically manufactured goods and services
are liable to be treated in an equitable manner. Furthermore, the provision of national treatment
is found in all three major agreements of World Trade Organization.
9 Erokhin V, Ivolga A. How to ensure sustainable development of agribusiness in the
conditions of trade integration: Russian approach. International Journal of Sustainable
Economies Management (IJSEM). 2012 Apr 1;1(2):12-23.
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In accordance with the provision of National Treatment, the main objective of institution
of this principle is to make sure that all internal measures are not applied to imported and
domestic products, so as to facilitate protection to domestic production 10.
In addition to this, provision of National Treatment obligation is applicable both in
internal measures. On the other hand, it is considered as opposed to border issues.
1.4 Exceptions Provisions
In accordance with the provisions, laid down under Most favoured nation, it can be
assessed that members of world trade organization should not make any discrimination in respect
of goods that are imported from its member countries 11. On the other hand, principle of national
treatment lays down that members of world trade organization, should treat and consider
imported goods and domestic goods in an equal manner. In addition to this, all countries of
World Trade organization are required to make sure that all provisions in regard to imposition of
Tariffs are complied with. Also, they are not permitted to apply quantitative restrictions on
access of goods and services in market area.
However, there are certain exceptions provided to member countries of World Trade
Organization, which are elaborated as:
 General exceptions: Members countries are permitted to adopt measures which are
necessary to protect human –beings, animals or health of a person, through which trade
can be restricted 12. In simple words, these exceptions convey a right to adopt measures
and standards which are essential to safeguard and protect life of plants, animals, as well
as human beings13. It can also be considered that these do not contribute to violation of
any provisions and other aspects of world trade organization agreements. It can also be
said that similar exceptions are also applicable in terms of trade and services.
10 Mackey A, Gass SM. Second language research: Methodology and design. Routledge;
2015 Jul 24.
11 Horn H, Johannesson L, Mavroidis PC. WTO Dispute Settlement System 1995-2010: Some
Descriptive Statistics, The. J. World Trade. 2011;45:1107.
12 Horn H, Mavroidis PC. THE WTO DISPUTE SETTLEMENT DATA SET 1995-2011.
Data available at the World Bank Data Archive. 2011 Nov 6.
13 ARTICLE XX GENERAL EXCEPTIONS, 2017. [PDF]. Available through: <
https://www.wto.org/english/res_e/booksp_e/gatt_ai_e/art20_e.pdf>. [Accessed on 17th
August, 2017].
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 Security Exceptions: Consequently, member countries are also required to adopt those
practices which are rendered as vital to safeguard interests of national security, that may
restrict trade of goods and services. In this light, same kind of security exceptions are
permitted in accordance with the General Agreement on Tariffs and Trade and TRIPS.
 Exceptions in terms of Regional Trade agreements: In order to set out provision laid
down under MFN Principles, to provide preferential treatment to goods and services from
trading partners, in an area of customs or trade free area, with no extension of treatment
to all members of world trade organization.
 Balance of payments; Under this, there are various rights, which are allowed to take
measures in order to safeguard and protect external financial position and balance of
payments of a member.
 Waivers: It gives a permission in respect of exceptional circumstances.
CHAPTER 2: LITERATURE REVIEW
2.1Introduction
The researcher needs to conduct a detailed review of all types of information and details,
which has been published with the help of secondary sources. It is also considered as a vital part
for an effective conduct of analysis of previous literatures and data or information gained with
the help of secondary resources. In addition to this, it can also be held that an overview of
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literature review helps in conducting assessment from all relevant components. This literature
review section of dissertation is framed with a purpose to deal with a detailed and elaborated
assessment of all relevant and adequate information to field of study. Furthermore, this section,
creates a path for a person, who is doing research, with an assistance of overview of relevant
elements. In addition to this, it can also be assessed that this section helps in evolving reliable
and valuable outcomes. Also, the literature which is published by different researchers and
scholars renders a brief which is related with a subject of study.
In this light, this research study is basically emphasised on The Effects of the
Contradictory Laws and Policies of WTO members toward WTO Principles, in this current era.
In addition to this, article XX will also be highlighted in perspective of an effective analysis.
Furthermore, the outcomes that have been studied in previous studies and assessment is also
evaluated with a basic aim to determine literature gap. In addition to this, a detailed investigation
of theories and legal aspects of past is also conducted with help of this section. This chapter
entails a detailed outline of the earlier research work that has been performed in aspect of The
Effects of the Contradictory Laws and Policies of WTO members toward WTO Principle: The
Study of the General Exceptions and Case Study Article XX under GATT/WTO Referred for
Environmental Protection.
2.2 Laws and Policies of World Trade Organization
The World Trade Organization is an institution, which was established on January, 01,
1995 with a basic aim to effectively regulate international trade, in between its members’ state. It
was established under the Marrakesh Agreement, which was signed by 123 nations worldwide.
Also, it replaced GATT, General Agreement on Tariffs and Trade, which was evolved in 1948.
It’s headquarter is situated in Geneva, Switzerland. The World Trade Organization aims to
establish a multilateral trade system which provides accessibility to its members ‘states in
accordance with the provisions of trade and other norms. Also, its objective includes to make
sure that effective practices have practised in regard to facilitate effective trade and practices.
In accordance with the view point of ,Borchert I, Gootiiz B, Mattoo A.14. World trade
organization is considered as a largest international organization in economic terms in entire
14 Borchert I, Gootiiz B, Mattoo A. Policy barriers to international trade in services:
evidence from a new database. The World Bank Economic Review. 2013 Jul
14;28(1):162-88.
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world. Furthermore, the World Trade Organization deals with an effective regulation of trade
and commerce in between countries which are participating, by establishing an efficient
framework. Basically, this framework was specifically designed with an aim to regulate
negotiations and also institute a dispute resolution procedure, says,Carlton DW, Perloff JM 15
Moreover, it is a notable fact that World Trade Organization has set an effective dispute
resolution procedure, focused at encouraging and enforcing participants to adhere and comply
with necessary requirements and WTO agreements.
In addition to this, World Trade Organization also emphasise to accomplish all
negotiations of Doha Development Round, which came into force in 2001 and mainly focused on
developing countries.
It can be evaluated that World Trade organization lays down various aspects of trade
policies which does not particularly define or explain outcomes. In other words, it can be
considered as in relation or connection with setting of rules and regulations of trade policies.
Hence, considering this, in accordance with the provisions of World Trade Organization law,
there are some principles, which was instituted by WTO:
 Non Discrimination: It has two major components which can be elaborated as Most
favoured nation and national treatment. Both aforementioned rules are framed in
accordance with trade of goods, services and intellectual property. National treatment
rules were evolved to reduce and handle all non-Tariff obstacles.
 Reciprocity: It includes desires to limit or restrict the scope of free- riding, which arises
just because of Most Favoured nation rule. Along with this, it also assists in proving
better access and admittance to foreign markets. For a perspective to effectively negotiate
by a nation, it is rendered necessary that any outcome form this act would be much
greater and huge in against of gain available from Unilateral Liberalisation 16. In addition
to this, reciprocal concessions aim to make sure that gains will be materialise.
 Enforceable and Binding contract: In this principle, it is laid down that all
commitments in terms of Tariffs, formed by all members of world trade organization, in
respect of a multilateral trade negotiation. In addition to this, ceilings bindings ad been
established by these schedules. Moreover, it can also be said that, in case of non-
15 Carlton DW, Perloff JM. Modern industrial organization. Pearson Higher Ed; 2015 Apr
14
16 Czinkota M, Ronkainen IA, Moffett MH. International business. Wiley; 2011.
9

attainment of satisfaction, the complaining country might appeal for settlement by
Dispute Resolution Procedure set by World Trade organization.
 Transparency and impartiality: In this phase, the members of World Trade
organization are required to publish their trade regulations, with a main objective to
maintain institutions, that allow for a perspective to review those administrative decisions
which affects trade. Also, they are required to ensure transparency in working and
regulations of trade of goods and services 17. it can be noted that in accordance with the
provisions of law and other legal legislations of World Trade organization, the members
of world trade organization are liable to notify in respect of any modifications and
changes, introduced in trade policies and regulations of World Trade organization.
 Welfare Standards: Government of each and every country is held liable to restrict and
prohibit trade of goods and services, in some of major circumstances. Also, members of
world trade organization are required to adopt some corrective measures through which
environment as well as public health, plant and animal health also get protected.
In perspective of the view point of,Horn H, Mavroidis PC, Sapir A.18 it can be said that
law of world trade organization is not easy to understand and also very complex and specialised
in nature. It deals in wide range of issues, evolving from tariffs, quotas of imports and formalities
of customs to intellectual; property rights, regulations in respect to food safeguarding. Therefore,
considering this, rules under World Trade organization law can be broadly characterised as:
 Principles of Non Discrimination.
 Regulations and norms in regard to market access.
 Provisions framed in regard to unfair trade.
 Settlement provisions in case of any conflicts in between trade liberalisation and other
interests of societal people or their interests.
Along with this,19 explains that, these aforementioned rules and regulations or principles
of World Trade Organization law, integrate and forms Multi- Lateral Trading system.
17 Golub J, editor. Global competition and EU environmental policy. Routledge; 2013 Apr
15.
18 Horn H, Mavroidis PC, Sapir A. Beyond the WTO? An anatomy of EU and US
preferential trade agreements. The World Economy. 2010 Nov 1;33(11):1565-88.
19 Kelemen RD, Vogel D. Trading places: The role of the United States and the European
Union in international environmental politics. Comparative Political Studies. 2010
Apr;43(4):427-56.
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2.3 Laws and policies of WTO members in aspect of protection of environment
There are various laws and regulations which are framed with a view point to give effect
to all members of world trade organization. Although, World Trade organization has no
agreement in terms which deals with environment. Nevertheless, in viewpoints of,Jordan A, 20 in
accordance with the provisions of law, WTO has confirmed with rights of government to
safeguard the environment, rendered certain terms and conditions are met and few of them
involve provisions which deals in environmental concerns. From this, it can be concluded that
aims and goals of sustainable development are important for effective protection of environment.
Therefore, in light of the protection of environment, there are various principles framed
by World Trade Organization. These can be elaborated as:
 The WTO is only capable to deal with trade and commerce. In addition to this, in simple
words, the main task of committee formed by World Trade Organization is to assess
those questions which arise in case, when policies related with environment have
significant impact on trade and commerce, says,Kelemen RD, Vogel D. 21. On the other
hand, in terms of,… it can be said that member of states do not want it to interfere in any
policies of national and international aspects as well as in setting various standards of
environment. They are of opinion that, there are many other agencies which are
established ton work better in terms of protection and safeguarding of environment.
 In case of non-identification of any issues and problems in terms of environment
protection by committee, then it can be held that its solutions must include values and
provisions of world trade organization trading system.
However, it has been analysed by,Matsushita M, Schoenbaum TJ, Mavroidis PC, Hahn
M 22 that members states of world trade organization are required to get convinced that multi-
lateral trading system, which is open , equitable and non – discriminatory are in nature, has a
main role to play in conducting its affairs in a competent manner. In addition to this, it can also
20 Jordan A. Environmental policy in the European Union: actors, institutions, and
processes. Earthscan; 2012.
21 Kelemen RD, Vogel D. Trading places: The role of the United States and the European
Union in international environmental politics. Comparative Political Studies. 2010
Apr;43(4):427-56.
22 Matsushita M, Schoenbaum TJ, Mavroidis PC, Hahn M. The World Trade Organization:
law, practice, and policy. Oxford University Press; 2015.
11

be evaluated that it has also contributed in terms of national and international aspects with an
objective to make an environment green and enable sustainable development.
Also, the main programme of committee mainly focuses on to development in 10 areas. It
is also set by members of World Trade Organization.
On the other hand, just like two sides of a coin, there are various criticism for policies of
World Trade organization in respect of protection and safeguarding of environment, says,Nanda
V, Pring GR 23. In this light, major feedback against this policy is that many corporations have
used WTO for an aim to dismantle hard-won ecological fortifications and they also refer it as
obstacles or barriers to trade. For an instance, it was held by World Trade organization that
provisions and principles of Endangered Species Act are illegal in nature.
Furthermore, it can also be said that, currently an agreement is in process, which would
reduce and eliminate taxes and tariffs on all products and materials of wood, which would
upsurge the demand of escalate forestation and timber. Furthermore, in words of, Narlikar A,
Daunton M, Stern RM, editors24World Trade Organization was also recognised as anti-green
environment. With regard to this statement, WTO responds in such a way that while
establishment of World Trade Organization, they have instituted their objectives in terms of
environmental protection. In addition to this, it can also be held that it also made optimal
utilisation of natural and artificial resources. Also, in accordance with the viewpoints of, World
Trade Organisation has also frame effective strategies and plans in aspect of sustainable
development as well as environment protection.
Moreover, WTO has also implied and formulated a wide range of provisions, basic aim
and objectives of which is to make enable countries to take corrective actions and measures, in
order to safeguard animal, human beings, plants and health etc. Along with this, it also
emphasises on conservation of non-renewable natural resources.
23 Nanda V, Pring GR. International environmental law and policy for the 21st century.
Martinus Nijhoff Publishers; 2012 Oct 12.
24 Narlikar A, Daunton M, Stern RM, editors. The Oxford Handbook on the World Trade
Organization. Oxford University Press; 2012 May 31.
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2.4 Evaluation of effect of Contradictory Laws and Policies of WTO members on WTO
Principles
In accordance with the perspectives of, Percival RV, Schroeder CH, Miller AS, Leape
JP.25 Agreements’ and principles, which was framed by World Trade Organization, are complex
and lengthy in nature. It is due to reason that it is a legal legislation, which has been formed with
a basic objective to cover a wide range of activities. They deal with number of practices and
other issues which can be defined as textile, clothing and agriculture along with banking and
telecommunications. All these functions are dependent upon some basic principles, which are
defined in accordance with law of World Trade Organization.
Considering this, Shaffer G.26 says that however, there are various legislations and
policies formed, with a basic objective to regulate trade and other practices, with no
discrimination, but, on other hand, there are some effect of contradictory laws and regulations of
WTO members on Principles of WTO. There is a contradiction in terms of laws and legislations
of WTO and in between principles of its members. In this light, it can be said that the main area
of contradiction lies within an arena, which can be referred to principles and policies formed in
respect of environment protection.
The first issue in this regard is this that the World Trade Organization does not form any
effective contribution to protection of environment. In this light, it can also be evaluated that
contradiction in between its member’s state and countries and WTO, is due to the reason that
WTO has not given much importance to the fact that government has not realised much
significance of refraining from doing interference in economic affairs and activities. Also, the
members wanted to focus on to work on macro control and formation of a healthy and sound
order of market.
2.5 Assessment of Article XX in terms of environmental protection
Interpretation of general exceptions which has been laid down under Article XX of
General Agreement on Tariffs and Trade has always been under a subject of controversy and
conflicts. In addition to this, it is being criticised by number of environmental protectionists.
25 Percival RV, Schroeder CH, Miller AS, Leape JP. Environmental regulation: Law,
science, and policy. Wolters Kluwer Law & Business; 2015 Jan 28.
26 Shaffer G. The World Trade Organization Under Challenge: Democracy and the Law and
Politics of the WTO's Treatment of Trade and Environment Matters.
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In terms of, Tran C.27 World Trade organization is established with a basic objective to
render an effective commitment to an open and non-discriminatory, which is also an equitable
multilateral trading system. On the other hand, in terms of, Venzke I.28it can be laid down that it
also emphasises on Protection and safeguarding of environment. In this light, World trade
organization has framed Article XX of General Agreement on Tariffs and Trade for the purpose
of resolving contradictions and conflicts in between the policies of trade liberalisation and
safeguarding and protection of environment. In addition to this, Article XX offers wide range of
general exceptions from international commerce obligations which are in terms of particularly
specified objectives, which includes conservation and protection of exhaustible resources both,
natural and man-made.
On the other hand, in accordance with the viewpoints of,Wallach L, Sforza M. 29it can be
said that the article XX of general agreement on Tariffs and Trade has laid down several aspects
and instances which enable WTO members exempt from rules and regulations of GATT.
However, there are two exceptions are framed with respect of the environment safeguarding.
It has also been analysed that in terms of Article XX of GATT, it can be evaluated that,
there are various policies, which are framed with perspective to protection of environment. WTO
members are required to identify their own aims and objectives of environment, which can be
applicable in terms of number of occasions.
Hence, considering this, there are two exceptions which fall within an arena of number of
policies which are framed with a view point to give effect environmental protection. So, in this
aspect, exceptions can be elaborate as follows:
 All those policies which are framed with a view to mitigate consumption of cigarettes,
protection of dolphins, as well as reduction of risks to human health which are possessed
by asbestos. In addition to this, it can be said that policies and provisions are also framed
with a view to decrease risks to animal and plant life.
27 Tran C. Using GATT, Art XX to justify climate change measures in claims under the
WTO Agreements.
28 Venzke I. Making general exceptions: the spell of precedents in developing article XX
GATT into standards for domestic regulatory policy. International Judicial Lawmaking.
2012:179-214.
29 Wallach L, Sforza M. The WTO: Five years of reasons to resist corporate globalization.
Seven Stories Press; 2011 Jan 4.
14

 Moreover, logical arguments which emphasises on conservation of tuna, salmon, herring
clean air and turtles etc.
However, it has been evaluated by, Wallach L, Sforza M30 that there is a great nexus or
connection of environmental policy objectives and means to achieve them.
CHAPTER 3: RESERACH METHODOLOGY
3.1 Introduction
Research is a term which implies to the orderly and methodologically procedure of the
collection and examination of information to facilitate the proper understanding in connection to
phenomenon under a purview. The section of research methodology is considered to be a vital
part of a dissertation which provides proper guidance to a researcher for effective completion of
work. In this light, it can be said that research refers to a procedure of collection and gathering of
information and data, in lieu of having an understanding related to a phenomenon under preview.
30 Wallach L, Sforza M. The WTO: Five years of reasons to resist corporate globalization.
Seven Stories Press; 2011 Jan 4.
15

This section of a dissertation is framed with a view to render an essential framework, which
facilitates research in a smooth and amicable manner.
In addition to this, research methodology provides an effective criterion for researcher so
that he does not deviate from his path. This chapter of Dissertation provides a way with several
methods of research used 31. Moreover, it also provides justification for effective selection of
distinctive techniques and tools by stating their advantages. Moreover, the main aim pf the
research is to properly identify and scientifically resolve all research questions.
In this current research, chapter of Research Methodology is intended to render a
comprehensive synopsis of various techniques of research tools and techniques which are
applied for examination and evaluation of effect of law and regulations of WTO members
toward principles and provisions of World Trade Organization.
3.2 Research Philosophy and Approaches
It is a concept, which provides an effective framework and sphere in aspect to different
manners, in which required data should be collected, assessed and utilised.it is a notable fact that
for a purpose of effectively and proper conduction of a particular research, it is but obvious that a
proper understanding in terms of pattern of investigation should be obtained. It comprises of two
types, which can be characterised as Interpretivism and Positivism. Hence, considering this,
Interpretivism can be defined as a perception which does not advocate instituted facts and
theories.
On the other hand , positivism is a term which is traditional in nature. Also, data collected
is quantitative in nature and it requires a huge sample size 32.
In this report, interpritivism approach is chosen. It is due to reason that it enables a
researcher to analyse about a topic in depth. Also, both open and close ended questions are also
present therein.
3.3 Research Design
It is considered as a methodological examination, which requires an effective skills of
logical understanding. In this light, there are several aspects which are required to be in effective
31 Manjiao C. China’s participation in WTO dispute settlement over the past decade:
Experiences and impacts. Journal of International Economic Law. 2012 Mar 1;15(1):29-49.
32 Merrills J. International dispute settlement. Cambridge university press; 2017 Apr 6.
16

research design. The main aim of research design is to reduce probabilities of wrong
interpretation of data, which can facilitate right track being followed while conducting research.
There are several ways in which research can be designed 33. In other words, it can also be laid
down that there is a great significance of research design because it assists in obtaining answers
to all the questions and facts that has been gathered or collected. These are gathered for a
purpose of testing of hypothesis or attainment answers to research questions. These can be
classified as casual research design, descriptive exploratory, case study and experimental.
This present study of dissertation focuses on to adopt descriptive method of research
design. Once acquisition of comprehension in regard to topic has been done, then it has been
assessed that descriptive research method is suitable for conducting this research. It is classified
as an empirical design method, which comprises of observing things and then description is
done. In addition to this, the main justification of utilisation of this research is that respondents
are observed in their natural meaning.
3.4 Research Approach
It is a notable fact that a research study is basically based on two approaches, which can
be classified as deductive and inductive. Inductive approach is a concept which commences with
accumulation of data, which is relevant to the respective topic. In this type, in accordance with
collection and integration of data and information, facts and outcomes are then analysed and
evaluated with an effective utilisation of technique namely bird’s eye view approach.
On other hand, there is another approach which is known as a deductive approach. This
theory is based on a common theory which has been contracted to a specific one. Also,
considering this, after contraction, hypothesis is formed.
Hence, in this present report, Inductive research theory has been adopted by researcher, in
which no hypotheses have been formed and along with this, firstly data is collected then,
inferences have been evolved.
3.5 Research type
Research type is consisting of two types i.e. qualitative and quantitative. Qualitative
research type is a type of collection of data, in which theories and terms are evolved on the
33
Wallach L, Sforza M. The WTO: Five years of reasons to resist corporate globalization.
Seven Stories Press; 2011 Jan 4.
17

ground of analysis of data collected 34. In this light, it can be said that a dissertation can be
classified as a qualitative, if objectives of a particular study defines specified state of acts and
issues. Moreover, it is an unorganized approach, which facilitates all materials and particulars of
an investigation to be active.
On the contrary, quantitative approach is a method, which makes full utilisation of
hypothesis, testing and conceptions. It is based on numerical data and values 35.
In this present research, Qualitative research by documentary research and content analysis
were applied in this research. It is an appropriate method, in terms of collection and analysis of data.
3.6 Method of research
Research is mainly an effective process of investigation which enables an increase in
knowledge. In this light, it can be said that legal research is a kind of research, in which law is
analysed and assessed. It also involves reduction, breaking and separation of law and legislations into
distinctive elements and components. In this light, another reason for conducting research in a legal
approach is to integrate vital components of statutes and cases together, in accordance with general
rules and standards. Hence, there are two forms of legal research, which can be classified s Doctrinal
and Non -Doctrinal research. In this light, the Non -Doctrinal research is a concept which, which can
be both qualitative and quantitative. While, Doctrinal approach is a term which includes only
qualitative approach, since, it does not relate with analysis of data in statistical terms.
In this present research report, Doctrinal method of legal research has been used while
collection and interpretation of data. It involves a minute discussion of law on a particular issue or a
topic. This is also known as a pure research form.
3.7 Data collection
Data collection involves those sources, from which information has been collected. In this
light, there are two ways by which data can be collected, i.e. Primary and secondary sources of data.
These two resources have been adopted so that research objectives and aims can be attained,
successfully and competently 36. Many a times, required data becomes easily accessible and
available. In addition to this, the at various times, the problems of research demands for latest trends
34 Wilkinson R. The WTO: Crisis and the governance of global trade. Routledge; 2013 Jan 11.
35 Ossa R. A “new trade” theory of GATT/WTO negotiations. Journal of Political Economy.
2011 Feb 1;119(1):122-52.
36 Silverman D, editor. Qualitative research. Sage; 2016 May 16.
18

and figures, which can be only be available from primary sources of data. On the other hand,
sometimes situation occurs with as collection and presentation of data. It can also be noted that both
primary and secondary sources of data and information cannot be considered and treated as reliable
and trustworthy, so no sources can be implied completely, in accomplishment of a particular subject.
In this light it can be said that there are two resources which can be elaborated as:
Primary sources: It can be collected by both qualitative and quantitative means. In this light,
there are various methods which are used while collection of data. These can be classified as
questionnaire, surveys and interviews.
Secondary sources: In this method, data and information are collected with the help of books
and journals. This method is not considered as an effective technique, as many a times, appropriate
data is not collected by means of secondary sources of data 37.
In this present dissertation, both primary and secondary sources are adopted for effective
analysis and interpretation of data collected. In this light, Primary resource was adopted for an aim of
evaluation of law and case study. N the other hand, secondary sources were utilised for by
assessment of article and researches of other researchers in aspect to evaluate an effect of principles
of WTO members in relation to WTO principles.
3.8 Sampling techniques
It is a process which involves a technique which makes research process easier for a
researcher. In other words, it renders different strategies which assists in minimising the complexity
of data collection 38. In addition to this, it is also advised that while adoption of techniques of
Sampling, it is required to choose one tool with best efficiency and appropriateness. So, in this
regard, sampling can be done by adoption of two methods, that are Probabilistic and Non
Probabilistic.
In this present case, the random sampling has been used to select sample size. Furthermore, it
can be said that it is the best and uncomplicated method.
3.9 Data analysis
It is a most significant section, in which data is evaluated with the use of primary research. It
is a method which offers an effective conclusion to research problem by formulation of both
37 Vaioleti TM. Talanoa research methodology: A developing position on Pacific research.
Waikato Journal of Education. 2016 Sep 22;12(1)
38 Smith JA, editor. Qualitative psychology: A practical guide to research methods. Sage;
2015 Apr 21.
19

qualitative and quantitative methods. Qualitative data is a concept which involves preparation of
themes.
In this case both quantitative and qualitative data are used for the purpose of interpretation of
data 39. In addition, this, laws and legislations are employed with use of Doctrinal legal research
method. It is done on the basis of assessment of each and every issue on the basis of its facts and
logic.
3.10 Validity and Reliability
It can be noted that due attention and care has been taken while preparation of this study
and research as well. Along with this, results of research are also reliable and effective in nature.
In other words, validity can be considered as the most significant part of an efficient research for
a particular study. It refers to a concept which implies an extent of accuracy, correctness and
exactness, within an arena of which accuracy, correctness and exactness can be measured.
On the other hand, Reliability is a term which refers to the alleviation of discrepancies and
abnormalities in the actual results.
Hence, the researcher has also taken due and adequate care for an intention to maintain and
sustain the reliability and validity of cited current study of research.
3.11 Limitations of Research
In the light of conduction of a particular research, following limitations were come across,
which can be demonstrated as follows:
 It is a lengthy process. It is due to reason that collection and gathering of data and
information from both primary and secondary sources of data can be a time consuming
and complex task to perform. In addition to this, it can be held that there are so many
aspects which are related with conducting surveys and interviews. In relation with these
said methods, it can be held that there is a very much time occupied in performance of
surveys and interviews.
 In this light, it is also a considerable fact that there is an absence of sufficient and
satisfactory secondary data. Also, the subject matter is related with an organization
specific and therefore much literature was available on this particular theme.
39 Taylor SJ, Bogdan R, DeVault M. Introduction to qualitative research methods: A
guidebook and resource. John Wiley & Sons; 2015 Oct 19
20

3.12 Ethical Considerations
There are various ethical considerations which are required to be taken into account while
briefing a study. These can be elaborated as follows:
 Debriefing: It can be considered as the most effective and vital part of ethics. It implies
rendering information to all participants of a study, which is related with reason and
nature of a particular research. In this light, it can also be said that there all participants of
the said research have been informed in detailed manner regarding different terms of
dissertation.
 Permission: It implies a need of taking prior approval from all of the participants.
CHAPTER 4: APPLICABILITY OF ARTICLE XX OF GATT 1994
The world Trade Organization is an organization which was established with a main
objective to regulate and facilitate fair trade and commerce among different members of World
Trade Organization. Also, this organization has formed with two objectives. These can be
characterised as an effective commitment to a non-discriminatory as well as open and effective
multi-lateral trading mechanism and also it aims at protection of environment as well. It can also
21

be noted that ancillary purpose of World Trade organization can be recognised in terms of
promotion and creation of sustainable development 40. Hence, considering this, the members’
states are so authorised by Article XX of General Agreement on Tariffs and Trade, which is also
known as (GATT), to adopt those methods and measures in respect of some specified aims and
objectives, even in those situations, in case, where there is an inconsistency in between aim of
World Trade Organization and those specified measures.
It can also be noted that, to become a member of World Trade Organization, it is required
that they have to keep minimum restriction on any trade which is done on international basis.
Also, in a report, it was published by WTO that, “it is necessary to create and maintain an
effective balance in between commitments and flexibility”. It is so because presence of too much
flexibility can also lead to underestimation of values and principles of World Trade
Organization. On the other hand, it can also be noted that little flexibility may provide
unsustainability to rules provided here in. in this light, the conceptual framework implies that the
rules framed should not be so rigid.
In addition to this, it can be evaluated that GATT has clearly stated a wide spectrum of
objectives and obligations, that are required to be followed by all member’s states. Nonetheless,
Article XX acts as an insurance system or a safety valve as well as it can also have called as an
adjustment policy, which permits all its members to maintain an effective balance in between
aims and goals of policies with free trade 41.
Article XX lays down various provisions and certain general exceptions, which was
incorporated, in order to enable members and countries to introduce measures which are
otherwise in contrary to obligations of General Agreement on Tariffs and Trade 42. In simple
words, it can be interpreted that Article XX conveys a list of exceptions, in which members state
can incorporate their own regulations and rules, in contradiction of already stated regulations of
World Trade Organisation.
40 Baroncini, E. (2012). The China-Rare Earths WTO Dispute: A Precious Chance to
Revise the China-Raw Materials Conclusions on the Applicability of GATT Article XX
to China’s WTO Accession Protocol. Cuadernos de Derecho Transnacional, 4(2), 49-69.
41 Bartels, L. (2012). The WTO legality of the application of the EU’s emission trading
system to aviation. European Journal of international law, 23(2), 429-467.
42 Espa, I. (2012). Appellate Body Approach to the Applicability of Article XX GATT in
the Light of China-Raw Materials: A Missed Opportunity, The. J. World Trade, 46, 1399.
22

Therefore, these exceptions can be listed down as:
 In case of protection of public morals.
 It is vital to safeguard and protect, animals, plant and life of human beings.
 Also, measures can be introduced in favour of exportations and importation of silver and
gold.
 It can also be said that members can set their own policies, when it is provided that it is
important to make sure effective compliance with all regulations and laws which are
consistent with GATT. In addition to this, measures in relation to conservation of
exhaustible natural resources, in case of such measures and methods are adopted in
conjunction with prohibitions on consumption of domestic materials.
However, it seems like many environmentalists has criticised the general exceptions
which were explained in Article XX of GATT. These are the people who favours protection of
environment over objectives of trade liberalisation, in spite of resolving of issues, with the help
of creation and maintenance of some balance in between protection of environment and trade
liberalisation. In this light, it can also be said that interpretations made by panel of World Trade
Organization or GATT panel along with Appellate body, in terms of Article XX are not fully
sufficient to clarify problems and issues 43. It is due to reason that interpretation varies from one
panel to another one, which depends upon a particular case.
Therefore, Preamble of said Article was incorporated with a main objective to reduce an
effect of indirect protection. In their opinion, indirect opinions are those terms which is not
desirable and a dangerous process. The main reason behind this fact is that many a times,
specification of protection of animal health and plant life or health are distorted for indirect
protection. So, this gives rise to a necessity that, a clause should be inserted, through which it can
be possible to restrict, the utilisation if such ways with a main aim to protect environment.
So, it has been assessed that a suggestion has been inserted in respect of determining
whether the scope of Article, in aspect of import and export restrictions. In this light, it can be
said that it is laid down under Article XX(b). There are many conditions which are explained in
aspect of cited article, which can be elaborated as:
 Unjustifiable and Arbitrary discrimination in between countries where same conditions
prevail.
43 Bartels, L., & Häberli, C. (2010). Binding tariff preferences for developing countries
under article II GATT. Journal of international economic law, 13(4), 969-995.
23

 There is a disguised prohibition on international trade.
It can also be evaluated in terms of law, that Article XX implies a terms and condition
that there should be an effective creation and maintenance of balance in between rights of
members to summon an exception, laid down under Article XX and moral duty of a particular
state to respect the rights of treaty of other words 44.
Also, Article XX also lays down that any measures that are adopted by members in order
to protect life of animal, plant and human beings as well, it is necessary to clarify that there
should not be any discrimination in terms of arbitrary and injustice, among countries where in,
equivalent conditions prevail.
On the contrary, applicability of Article XX of GATT, also witnessed some major
criticism from various analysts. In simple words, it can also be said that there are various
conflicting opinions in regard to Appellate Body’s implication and application of general
exceptions, that are highlighted in Article XX of GATT. Some of the people are of the opinion
that appellate body is mistaken for application of proportionality analysis in altogether manner.
In addition to this, Article XX(g) can be considered as a potential defence. Article XX(g),
conveys that member states of world trade organization are authorised to adopt effective
measures in respect of conservation of non-renewable and exhaustible resources 45. In addition to
this, it can be said that there are various aspects which are required to make sure that Article
XX(g) is effective for implementation. In this light, it can be further stated that there are these
articles are subject to norms of provisions laid down under Chapeau to Article XX.
Moreover, it is a notable fact that the orbit and scope for member countries of World
Trade Organization are in accordance with the adoption of various measures and techniques in
relation to health of public and societal people and also assurance of effective protection of
environment, which are present for restriction on free trade.
44 McGovern, E. (2016). International trade regulation (Vol. 2). Globefield Press.
45 Venzke, I. (2012). Making general exceptions: the spell of precedents in developing
article XX GATT into standards for domestic regulatory policy.International Judicial
Lawmaking, 179-214.
24

CHAPTER: 5 SIGNIFICANT CASE
Shrimp and Turtle case
This case was presented by three countries in front of World Trade Organization in
against of US. Also, reports in this respect were accepted by Appellate Tribunals in the year of
1998.
In this light, in the year of 1994, world trade organization intervened in regard to address
member’s states and countries in aspect of import of Shrimp and its effect on turtles. This case
was known as “Shrimp and Turtle case 46.
In the cited case of Shrimp and Turtle case, it can be said that the group of environment
from the states namely Oakland, California and Earth justice had filed a case a case against
agency of Environment protection, for a reason of lacking of oversight in between US Shrimp
Fishers and fisherman of International basis. In addition to this, the Earth Island Institute sued
US secretary of State Warren Christopher in us Federal court. It is a notable fact that this cited
suit was based on the law of Public 609:101-162, which was not considered as an amendment of
the act which is considered as Endangered Species Act. Section 609 mentioned under public law
that secretary of state is responsible to negotiate as well as able to develop bilateral treaty in
order to protect endangered sea turtle 47. Also they are able to imposed restriction import of
shrimp which is produce without the technology of Turtle excluder device. Such technology has
been introduced by National Marine Fisheries Services. The US country has been enforced of
609 Caribbean countries instead of any other countries. Court of International trade has been
framed various types of rules, regulation and policies which are imposed on them. All countries
are bound to comply with such rules which are imposed on them. According to Endangered
Species Act there are various types of rules has been mentioned which are related to sea turtles.
The environment protection agency of US is able to protect such species. While conduction
fishing for shrimp the fishermen of US require new technology for the same purpose.
46 Jenkins, L. D. (2010). The evolution of a trading zone: a case study of the turtle
excluder device. Studies in History and Philosophy of Science Part A, 41(1), 75-85.
47 Shaffer, G. (2010). The WTO Shrimp-Turtle Case (United States-Import Prohibition of
Certain Shrimp and Shrimp Products).
25

Such new and advance technologies are able to allowed the harvest of shrimp without
deceive sea turtles in the process of in-discriminatory bottom trawling. The fishermen of US are
quickly adopting such techniques or technologies in order to attain their target and maintain
performance as well. Most of the people adopt such technology and implement the same also try
to comply with rules which are imposed on them. Most of the countries name called India,
Malaysia, Pakistan and Thailand are collectively file suit with WTO in order to fulfil their
requirements. At the initial stage, the WTO take decision against United States 48. On the basis of
this rules US not able to discriminate among each country. Financial as well as technical
assistance provided to such country as well49. After sometime the Us has been amended by EPA.
Country Malaysia was unsatisfied with such rule. After that WTO compliance panel frame rules
in favour of US in 2001. Further, such case is important because in which WTO imposed
restriction on US on import of goods which is based on process of production and such things are
not produced by country itself. Such matter is called as process versus product issue.
Tuna-Dolphin I – II Case
Tuna Dolphin I as well as Tuna Dolphin II are two different cases which are related to
GATT which is stands for General Agreement on Tariffs and Trade. Such cases involved US
imported goods and services from Mexico and further countries. For this purpose, they opted method
of Purse Seine fishing resulted large number of dolphin kills. Purse seine net fishing for the purpose
of yellowfin tune. It has been preferred technologies for fishing. This type of fishing method
involved the use to two or more boats 50. First one is fishing vessel and second is seine skiff
motorboat. The main conflicts with this types of fishing is that this is indirect and while conducting
activity killing large number of dolphins. This is regrading tendency of large number of dolphins to
swim above the schools of yellowfin tuna. This is occurring under Eastern Tropical Pacific (ETP)
ocean. This method has been opted by large number of fishermen in order to observe dolphins on
surface. It creates issue that under ETP many fishermen are intentionally skirting such dolphins for
48 Rieser, A. (2012). The case of the green turtle: An uncensored history of a conservation
icon. JHU Press.
49 Mukherjee, Z., & Segerson, K. (2011). Turtle excluder device regulation and shrimp
harvest: the role of behavioral and market responses. Marine Resource
Economics, 26(3), 173-189.
50 Shaffer, G. (2012). The WTO tuna-dolphin II case: United States—measures
concerning the importation, marketing and sale of tuna and tuna products.
26

the purpose of tune below resulting in drowning of them as well as mass causalities. Through this
methods morality rate of such animals has been decreased and reduce by-catch of dolphins. On the
other hand, the causalities of such animals in ETP Ocean are led at the initial ban on tune imports
from the country of Mexico. It is harvested by using technique of purse seine fishing. In case Tuna
Dolphin I on US imports tune from Mexico which is related to taking prohibition in Marine
Mammal Protection Act, 1972. This act require prohibition as well as importation in United States.
The main objective of such this act is try to decrease rate of incidental kill as well as rate of injury
caused to Marine Mammals which is related to commercial fishermen. There are various types of
rules, regulation, policies and provision has been framed which are need to be follow by country US.
Such rules are enforced by National Marine Fisheries Services (NMFS) 51. On the other hand,
importation has been enforced by United States Custom Services. On the basis of section, 101 (a) (2)
of MMPA, it has been stated that, the secretory of Treasury have to ban importation of fish goods
and services which are caught in technology of commercial fishing. This method in incidentally kill
or it results to cause serious injury of Ocean Mammals. It is excess then the standard of United
States. As per the section 101 (a)(2) (B), it has been stated that, for the purpose of importation of
yellowfin tune using purse seine nets. It is prohibited unless government grant permission for the
same. Also this rule consists prerequisites in order to identifying average rates of incidental taking as
compare to commercial fleets of US. As government have to take reasonable step in order to reduce
rate of killing of fish and frame some rules or regulation and bound countries to follow the same.
Furthermore, this process is able to provide growth and development of fisheries market.
The case of GATT Tuna Dolphin II, it was brought against the country US by EEC which is
stands for European Economic Community. Such rules have been defined in two different categories
which are as aligned below-
 Primary nation- Through this method country can directly conduct export yellowfin tuna
goods and services from its country into US.
 Intermediary nation- On the basis of this method, country which wants to conduct export
yellowfin tuna goods and services to US, further which receive imports from its country.
51 Trujillo, E. (2012). The Tuna-Dolphin Encore-WTO Rules on Environmental Labeling.
American Society of International Law.
27

For the purpose of intermediary nation, the legal body called as MMPA requires to certify as
well as have to provide reasonable proof to the Secretory of commerce 52. Furthermore, it was not
imported from previous 6 months. If in case intermediary nation is not able to obtain proof, then
importation of yellowfin tuna has been banned from United States.
CHAPTER 6: THE COMPLICATION OF ADAPTATION AND
INTERPRETATION OF ARTICLE XX
World trade Organization is an organization which was framed with a view point to
effective regulation of trade and commerce in between member states of cited organization. It
has also formed Article XX which consists of general exceptions on General Agreement on
Tariffs and Trade 53. In this light, it can be said that interpretation in respect of Article XX of
GATT also involved various conflicting opinions in the eye of Environmentalists, who are of the
opinion to prioritise the protection and safeguarding of environment over objectives of
liberalisation of trade. Instead of resolving issues among countries, with help of creation and
52 Howse, R., & Levy, P. I. (2013). The TBT Panels: US–Cloves, US–Tuna, US–
Cool. World Trade Review, 12(2), 327-375.
53 Voon, T. (2013). Flexibilities in WTO law to support tobacco control
regulation. American journal of law & medicine, 39(2-3), 199-217.
28

sustaining an equilibrium between aims or goals of trade liberalisation and protection of
environment54. However, the issue is still not resolved. In addition to this, it can be said that
interpretations of General Agreement on Tariffs and Trade, along with World Trade
Organization panel and Appellate body are not sufficient and satisfactory in respect of
clarification of all points of issue and conflicts of issue, which involves variation in interpretation
from one panel top another one.
Hence, considering this, it is required to adopt several measures which involve effective
interpretation of Article XX of GATT in consistency of WTO and Appellate Tribunal. Measures
and methods are adopted in terms of resolving complaints in terms of interpretation of Article
XX of GATT, filed by other member countries of World Trade Organization 55. In this light, it
can be said that one of the key issues which involved interpretation and assessment of Article
XX can be characterised as a case law of Imports prohibition on Shrimp products. In addition to
this, it has been analysed that decision and examination in respect of cited case law show that
Appellate Body still prefer liberalisation of trade and commerce practices in spite of
environmental protection.
In this light, Article XX consists of two sub- clauses which are known as Article XX(b)
and Article XX(g). in accordance with the former article, it can be evaluated that it is vital to
safeguard animal. Plant and human life and health as well. In this light, provisions of Article XX
has been interpreted in terms of Article XX with objectives and main purpose of agreement of
World Trade organization.
There is a great complication in implementation of Article XX as it is not consistent with
the provisions. In accordance with opinion of Appellate tribunal, in case of abuse of excpetions
by member states, even if it acceptable in the eyes of law and consistent with norms of Multi-
lateral trading system as well, it can be said that, such said abuse is widely accepted by other
countries, in same kind of situations 56. Along with this, it also causes a solemn danger and threat
54 General Agreement on Tariffs and Trade 1994, 2017. [Online]. Available through: <
https://www.wto.org/english/res_e/booksp_e/analytic_index_e/gatt1994_07_e.htm>.
[Accessed on 17th August, 2017].
55 Gruszczynski, L. (2010). Regulating health and environmental risks under WTO law: a
critical analysis of the SPS agreement. International Economic Law.
56 Gruszczynski, L. (2010). Regulating health and environmental risks under WTO law: a
critical analysis of the SPS agreement. International Economic Law.
29

to predictability and security of Multilateral trading system. So, in this regard, the panel argued
that, in terms of a Unjustifiable also, in accordance with aims and objectives of agreement
World Trade Organization, the measure of US comprises of Unjustifiable discrimination among
countries or members wherein same conditions prevail and therefore it cannot be considered in
scope of measures that were been authorised under Article XX.
In addition to this, it can be recalled that analysis under article XX of General Agreement
on Tariffs and Trade, related to environmental protection is consists of two tiered analyses, it can
be analysed as:
 In the first step, it has been laid down that it is very essential to identify whether the
measure in a particular question falls within an ambit of paragraph(b) as a standard,
which aims at protection of animal, plant and human life as well as health too. While,
subsection (g) of Article XX emphasises on preservation of exhaustible and non-
renewable natural resources 57. In simple words, it involves an assessment and evaluation
over a fact that whether there are any less trade restrictive choices or alternatives, which
are available reasonably and that equally attain the cited aims and goals of measures.
 In addition to this, under the second step, it has been evaluated that whether the said
standard is applicable in such a manner, which consists of unjustifiable or arbitrary
discrimination in between the countries, in which similar conditions dominates.
Moreover, all member states where there is a situation of disguised restriction on
international trade.
It can also be noted that Article XX of GATT only focuses on to have an effective
meaning of terms like resources, exhaustible resources etc. These said terms are required to be
complied within aspect of contemporary concerns of national community 58. In addition to this, it
can be said that these said concerns and terms are elated with a basic aim to protect environment
and all societal people.
In further direction, it can be noted that there is an extra territorial scope of an Article X
(b) and (g). in this light, sometimes, it has also been argued that there is no explicit jurisdictional
57 Ming Du, M. (2010). Autonomy in setting appropriate level of protection under the
WTO law: rhetoric or reality?. Journal of International Economic Law, 13(4), 1077-
1102.
58 Marceau, G. (2013). The new TBT jurisprudence in US-Clove cigarettes, WTO US-
Tuna II, and US-cool. Asian J. WTO & Int'l Health L & Pol'y, 8, 1.
30

limitation in Article XX. But on the other side, it is rendered necessary to identify any situation
in which there is an implied jurisdiction limitation, which aim to prevent all its member's state in
aspect of issuance from invoking the cited general exceptions in terms of GATT outside the
arena of jurisdictional limi8tation. In this light, it can be evaluated that it gives rise to two types
of conflicts within the arena of World Trade Organization system 59. These can be characterised
as:
 The first kind of conflict can be known as inward -oriented type which involves an arena
of the conflict about measures in relation with trade, which basically seek to protect
domestic safety and health as well as conservation of resources etc.
 On the other hand, second most type of conflict is based upon extra territorial motivation,
which happens in case when, aims and objectives in regard to safety and health protection
measures, which does not lie within an arena of a particular state.
In the end, it can be concluded that Appellate association and World Trade Organization
are still in the form to consider access to market and elimination of barriers to trade as main
issues over environmental protection. Also, all general exceptions laid down under Article XX
are framed with a main objective to ensure balance in between environment values and free trade
values and regulations.
Furthermore, it is not allowed by any of the members states of World Trade Organization
to imply any of the domestic laws in context of environment, which affects by way of exceeding
the jurisdictional limits.
It can be further stated that there are different aspects which are related with an effective
implementation of the article 60. In this light, it can be said that there are various effective terms
and conditions which are required to be fulfilled. Also, it can be further stated that preclusion of
abuse of the exceptions of Article XX can be considered as as ther most effective object and aim
of Chapeau.
59 Cho, S. (2012). Beyond Rationality: A Sociological Construction of the World Trade
Organization.
60 McRae, D. (2010). The WTO Appellate Body: A Model for an ICSID Appeals
Facility?. Journal of International Dispute Settlement, 1(2), 371-387
31

CHAPTER 7: THE NECESSARY AMENDMENT TO ARTICLE XX
STANDARD
Article XX is framed with a main view point to lay down several exceptions in
accordance with General Agreement on Tariffs and Trade. In this light, it can be said that there
are various exceptions which are framed in this regard 61. In accordance with the view point of
law, it can be evaluated that there are general exceptions which are expressed in Article XX of
GATT.
61 Cadot, O., Maliszewska, M., & Sáez, S. (2011). Nontariff measures: impact, regulation,
and trade facilitation. BORDER, 215.
32

Subject to the necessity in regard to measures which are not applicable in a manner that
form means and medium of arbitrary and unjustifiable discrimination among member countries
of World Trade Organization where in similar types of circumstances dominates. In this light, it
can be said that an agreement can be formed with a main objective to prevent and safeguard an
enforcement or adoption by any contracting parties of measures. In this light, it can be said that
there is a need to analyse and assess those measures. These can be demonstrated as follows:
 All those standards which are vital for the purpose of protection of public morals.
 In addition to this, it can also be said that, standards which are important for protection of
human animal and plant health and life are considered to form an agreement.
Hence, considering this, it can be said that there are lot of the important aspects which are
laid down in as exceptions in an Article XX. basically Article XX of the GATT, aims to prevent
any kind of activities undertaken that rises discrimination in respect of trade and commerce
among countries 62. However, there are some exceptions defined in Article XX which are framed
so as to give effect the adoption of any tactics related to discrimination. Those situations and
circumstances can be defined as follows:
 In case of protection and safeguarding of public morals.
 Also, when it is considered as vital to protect and safeguard life and wellbeing of human,
plant and animals.
 Situations related with exportations and importations of gold and silver.
Also, it can be laid sown that Article XX is a not extended too much and is limited and
also an unconditional exception among other cited obligations and norms of General Agreement
on Tariffs and Trade, which is of the nature of the negative rule establishing nature on its own.
This is the reason that panel considers that a party related with a dispute are in a situation to
argue as an alternative in which cited article must have implied. In this light, it can be said that
the preamble of article XX has been inserted in lieu to give effect all the exceptions. Also, it is
also recommended to include a clause which prevents member states of a country to take undue
advantage of all general exceptions laid down under said article. It is also called as an umbrella.
Structure of agreements of World Trade Organization 63.
62 Wallach, L., & Sforza, M. (2011). The WTO: Five years of reasons to resist corporate
globalization. Seven Stories Press.
63 Shaffer, G. (2010). The World Trade Organization Under Challenge: Democracy and
the Law and Politics of the WTO's Treatment of Trade and Environment Matters.
33

In this light, it can also be noted that formation of Article XX of GATT is concocts of
Two-tier test. In this light, it is important fact that the order of two tier test cannot be reserved as
it lays down a basic foundation for the purpose of Article XX of GATT 1994. So, in order to
implementing the said article, it is required by a panel to make sure that process must start with
effective analysis and evaluation of some specified exceptions, that has been invoked by parties.
Also, necessary amendments and modifications are being made in respect to provide
justification of policies among others, which are designed to protect and safeguard the life and
health of human, plant and animals. In addition to this, conservation and protection of
environment should also be facilitated 64.
In accordance with the viewpoints of Appellate Body, it is necessary and within an arena
of authority of members of World Trade Organization to create and set objectives in lieu of
public health and protection of environment.
In the light, of Article XX(g), comprises of all measures and techniques, which are
related and concerned with protection and conservation of exhaustible natural and non –
renewable resources. In addition to this, it can be further stated that there are various measures
which are connected with a perspective to conjunction with prohibitions on in home or domestic
manufacture and production. It can be well defined in the case of US-shrimp case.
CONCLUSION
From the above mentioned dissertation, it can be comprehended that World Trade
Organization is an association, which was mainly framed with a basic objective to make sure that
there is an effective balance in between member states for effective regulation of trade and other
practices. In this dissertation, it can also be concluded that there is an effective balance among
principles of GATT and World Trade organization. In addition to this, back ground and
functioning approach of World Trade Organization is also highlighted for an effective
explanation of its objectives and aims. On the other hand, it has been evaluated that WTO has
been established with a basic aim and objective to provide a complete and regulatory framework
in terms of trade and other practices. In this light, this dissertation was basically framed with a
view to recognize the effects of contradictory laws and policies of members of WTO, towards
64 Kolben, K. (2010). The WTO distraction. Stan. L. & Pol'y Rev., 21, 461.
34

WTO principles. In addition to this, various objectives in this regard has also been evaluated.
Hence in this regard, the main objective of this study was to evaluate the different laws and
policies of World Trade organization in aspect of trade and commerce. In this light, it can be said
that there are various legislations and norms which are laid down by WTO. It includes principles
like most favoured nation principle and national treatment. In addition to this, it can be said that
there is a dispute settlement procedure, established by World Trade organization in the light of
resolving disputes among its member countries or states.
Along with this, it can also be comprehended that principles of non-discrimination are
also discussed in the light of evaluation of policies and legal regulations of World Trade
Organization. Furthermore, this study describes the necessity to assess various aspects in
accordance to which policies of members of WTO are framed. In this report, doctrinal mode of
legal research has been utilised with a main objective to search different aspects in the terms of
this dissertation. In this light, it can be further noted that there are various techniques of research
has been used in conduction of this cited dissertation.
In addition to this, this report of study in terms of World Trade Organization also throw
light on policies of member states in respect of principles of WTO. Also, the main features
include various exceptions which are conveyed through article XX. in addition to this, the article
in terms of the exceptions are also laid down. In addition to this, significant case laws of Shrimp
and Turtle case and Tuna-Dolphin I – II Case has also been discussed in this report. These case
laws frame a view point on the basis of environment protection.
In this present study, various measures and techniques for protection of environment are
also discussed. In addition to this, different provisions in terms of article XX has also been laid
down.
Moreover, all necessary amendments in aspect of the Article XX with its subclasses (b)
and (g) are also evaluated in this present report. In addition to this, it can be held that clause (b)
includes that members are authorised to take preventive measures in respect of the environment
protection. In addition to his, this report has thrown light on all necessary amendments which are
given in respect of Article XX. In this light, basic intentions and nature, as well as its nature has
also been evaluated in this report.
It has also been summarised that members of world trade organization are under an
authority and moral obligation to protect and safeguard the right of protection of safeguard life of
35

plants and animals along with humans as well. On the other hand, article XX(g) of GATT, takes
into consideration, various measures and dealings which are adopted in lieu of preservation of
natural resources which are exhaustible in nature. Also, it can be comprehended that there are
different terms and provisions that has been used by the article XX (a) to (i). as per the view
point of Appellate body, it has been rendered necessary and vital to use distinctive types of
degree of relationship and connection which sought to be enhanced and promoted.
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