JANUARY-APRIL 2003

SECOND SUBSTANTIVE LEGAL PROBLEM FOR US STUDENTS

Laws # 666 Spring 2003

Due April 15, 2003 (three weeks' time)

The basic structure of multilateral trade law going back to the 1947 GATT involves certain promises that importing countries will not discriminate against or otherwise exclude specified products of exporting countries.  However, the general rule is subject to a variety of exceptions like national security, anti-slave labor, and certain environmental regulations.  The overlap between international trade law in the form of the World Trade Organization treaty (see http://www.wto.org) and environmental considerations either under multilateral environmental agreements (MEAs) or WTO treaty Article XX providing conservation exceptions for national law presents special problems.  In practical terms, they also represent the legal levers used by international bodies like the ICCAT (http://www.iccat.es/)as discussed by Professor John Dean to control the international sale of fish harvested outside quotas and similar restrictions contained in international fishing agreements.  Most environmentalists do not understand trade law very well, but everyone has heard of the original dolphin-friendly tuna case between the US and Mexico (purse seine nets in tuna fisheries killing our friend Flipper as by-catch), as well as the more recent Turtle-Shrimp proceedings involving the US and countries such as Malaysia and India (shrimp boats similarly killing marine turtles if their nets did not contain so-called turtle excluder devices).  They all address the problem of whether, and the extent to which, measures to support conservation or the environment may legitimately overcome international trade obligations to not discriminate against or otherwise exclude relevant products.   The problem is surfacing with renewed vigor in the Doha trade negotiation round.

You should read three Doha round WTO documents attached, all of which are also available on the WTO website or here via clicking on the following links.  The first is a report of the Committee on Trade and the Environment (WT/CTE/W/203, dated 8 March 2002) reviewing the relevant portion of the Article XX jurisprudence in condensed form.  The second is the submission of India (WT/CTE/W/207, dated 21 May 2002) concerning the effects of environmental measures on market access in relation to developing countries (including marine turtle problems in its paragraphs 12-13).  The third is a submission of Switzerland (TN/TE/W/4, dated 6 June 2002) addressing what the relationship should be between MEAs and trade law.

Please answer two questions in no more than ten double-spaced, typewritten pages.  First, how do you explain the relationship between (i)  existing WTO jurisprudence as summarized in the document of the Committee on Trade and Environment on the one hand, and (ii) the Indian submission containing a proposal on how to reconcile trade and environment concerns from a developing country perspective plus the Swiss submission on how to structure reconciliation of those concerns on the other hand?  Second, how would you apply (i) and (ii) to the issues facing the Commission on the Conservation of the Southern Bluefin Tuna (CCSBT, http://www.ccsbt.org/) in on-going negotiations between Indonesia and the CCSBT regarding what looks to be unsustainable fishing of Southern Bluefin Tuna?  This is an attempt to make you work beyond customary law, at the level of the modern treaty interpretation and negotiations in the marine/international environmental/international trade law context.