Basic GATT Obligations and Exceptions - Coursework Example

Case Scenario Name Institution Date Introduction Basically, while the total ban imposed by the UK government on orchid imports from Thailand might be small in comparison to other industries that have been involved within WTO disputes; the compliant of Thailand raises vital matters regarding the scale of the Article exceptions to General Agreement on Tariffs and Trade (GATT) (Robert, 2009).1 Basic GATT Obligations and Exceptions The GATT binds countries to obligations that facilitate free flow of goods between countries. When a member country puts up barriers to trade, for example import bans, another member country can challenge such legislation via WTO consultations and a dispute settlement panel. In view of that, Thailand is presently challenging UK’s ban on orchids on several grounds, one being Article XI, which forbids countries from imposing quantitative restrictions on imports2. Nevertheless, Article XX of the GATT gives numerous exemptions that permit countries to take reasonable measures for protecting “public morals” as well as “human, animal or plant life or health. Assuming UK’s ban on orchid’s importation from Thailand is not an “arbitrary or untenable restriction on international trade”, it may fall under Article XX exception to the General Agreement on Tariffs and Trade’s general ban on import restrictions (Robert, 2009).3 An appellate organ of the WTO, within Reformulated Gasoline and consequently within Shrimp-Turtle, set up the lawful procedure, where a country can defend an Article XX exception. One, the country should demonstrate that the legislation restricting trade meets the criteria of a “provisional justification” under the pertinent Article XX exception. UK is supposed to illustrate that: The ban is aimed at protecting “public morals”, or protecting “human, animal or the life or health of the plant”. The ban is essential for achieving these ends The ban matches with the Article XX Chapeau, which rules out the measure from being arbitrary, unwarrantable, or a “disguised restriction on international trade” (Robert, 2009).4 The Exemptions to Article XX (a) & XX (b) include: Protection of public morals: Article XX (a) Whereas establishing the scale of any of Article XX’s sections could be contentious, definition of XX (a)’s “public morals” exemption is even additionally intricate because it lacks objectivity or scientific information5. The framework of the endorsement of the Article is a vital way of interpreting in examining the scale of the section. Founded on numerous pre-GATT domestic laws, it is evident that moral exemptions to import regulations were common during drafting. The exemptions to characteristic trade regulations consisted of import bans on articles varying from violent and obscene images, to profane things, to bird plumage. Such exemptions also existed within current treaty regimes within the decades preceding the GATT, in addition to [a] fter 1927, the moral and humanitarian exemption turned out to be a recognized practice within viable treaties. Among the treaties tackling moral matters, some were allied to plants. For instance, protection of plants covers the public health and safety, and also other crucial reasons superseding public interest, and this includes those of social or economic nature and valuable consequences of principal value for the environment (Wappriita Annual Report, 2007).6 Import and export guiding principles have in the past demonstrated concern for the protection of plants, even if the interests of free trade have constantly won out. However, those who drafted GATT within 1947 were indeed conscious of numerous morality-based exceptions within other commercial agreements as well as the life or health of the plant was among these concerns. Accordingly, there is an illustration that GATT drafters aimed at defining “public morals” according to the country’s existing cultural standards. Besides, lately, the number of nations taking measures of suppressing markets for plant products that does not meet their legislation has increased considerably. The state practice of UK, in addition to the big number of other countries, illustrates that the public sentiment in support of protection of life or health of the plant is strong. Whereas at present there are no international treaties about life or health of the plant, there is a history of such legislation in UK and there are also developments towards a global legal system that tackles the protection of endangered species. Again, even though there is no existence of a hard legal structure, there is strong proof of increasing concern for the protection of life or health of the plants (Wappriita Annual Report, 2007).7 Considering the numerous regulations that have been passed in preventing destruction of endangered plant species as well as protection of life or health of the plants internationally in combination with the evidence of UK’s subjective definition of morality toward plants, UK legislation would appear to fall in the scale of Article XX (a)8. The destruction of these plants is a moral concern, particularly when the harvesting and utilization of the plants poses extinction risks as well as destroys the environment. Even if destruction of plants might firmly amount to a moral concern under the Article XX (a), preservation of the plants would appear to fit even more evenly in the morality exemption. Many individuals quite considerably perceive the mishandling of plants as immoral9. Additionally, surveys also demonstrate that several UK residents have expressed reservations about the Orchid importation. Basing on the data gathered from these surveys, it seems that the first point of the test under Article XX (a) would likely to be fulfilled. The more intricate and more contentious issue is if the import ban is essential (Robert, 2009).10 “Necessary” for the Protection of Public Morals In establishing if a regulation is essential, a WTO dispute resolution organ takes into consideration two aspects: The nexus between the aim of the regulation and the home state If there is availability of less restrictive trade measures However, there is meager jurisprudence on Article XX (a) but it is rational to believe that the resolution body would be in position to structure its elucidation in the same way as an Article XX (b) dispute (Robert, 2009).11 The Nexus Requirement Pursuant to the nexus prerequisite, the resolution body is supposed to establish the superficial nature of the regulation. This is used on establishing whether the measure is an attempt of impermissibly compelling a foreign nation to take on a legislation that corresponds with the policies of the regulating country. A number of free trade supporters insist that when a nation tampers with activities that have an impact outside its territorial borders, such a country hinders the other country’s domestic rights along with export rights. As a result, the UK’s ban on importing Thailand’s orchids appears to be an unlawful undertaking of its regulatory authority12. Within Shrimp-Turtle, the Appellate body particularly evaded the subject of if Article (g) inflicts an inherent restriction on jurisdiction. In this regard, the Appellate body fundamentally that the US was allowed to prohibit imports from anglers who, when spiriting for shrimp with waters outside US jurisdiction, did not take the required precaution measures to prevent the accidental death of sea turtles. In so holding, the implication of the Appellate Body was that some form of “nexus” was needed between the regulation entity and the regulating nation. This prerequisite, nevertheless, has restricted applicability to a ban of orchids under the Article XX (a)13 exemption since the aim of this ban is to protect the public moral of UK’s own citizenry. The orchids are imported to UK, and hence UK has a direct contact with the imports that is the subject topic of the ban and hence apparently the cause of harm to public morals. Accordingly, the “nexus” prerequisite of Article XX cannot be applied here because territoriality is not a problem (Brian & Lee, 2007).14 Furthermore, the aim of UK’s import ban is not to compel other nation to change their normal standards, other than to be free to ban in its own territory the marketing of orchids which do not conform to the protection standards listed within the legislation. A regulation implied to protect public morals within a foreign state would not meet the “essential” prerequisite. However in this case, the concern is that the presence of orchids which do not fulfill the protection standards listed within the legislation is offensive to public morals in UK. UK is utilizing the import regulation to complement domestic legislation that attempts to ban all orchids from both foreign and domestic sources that do not fulfill the protection standards listed within the legislation. States have disseminated several bans basing on their authority to act as “ethical consumers” and UK’s legislation is devised in a similar way. Objective evidence supports the intent of UK, and this includes key sources like “statutes’ texts, history of legislative, as well as pronouncement of government bodies or officers (Brian & Lee, 2007)15. The Least Trade-Restrictive Measure Another aspect in the essential test is that the regulating member should implement trade measures that are least limiting in achieving its goal. The UK’s restriction is evidently a ban on importing orchids that do not fulfill the protection standards listed within the legislation; the question is if this is the least trade-limiting means possible. In this case, UK’s law provides that orchids’ importations are allowed if the required standards are met. Therefore, it is possible for UK to “successfully defend the import ban on importation of orchids from countries that do not meet the provided standards under Article XX, in this case Thailand (Brian & Lee, 2007).16 The Chapeau Requirement: No Arbitrariness or Unjustified Restriction on International Trade Supposing that the UK’s ban is perceived as an attempt of protecting public morals, and that such actions are essential, the final step of evaluating an effective invocation of Article XX is to take into consideration if the measures are applied in a way that represent a way of arbitrary or unjustifiable bias between nations where some prerequisites exist, or a disguised limitation on international trade. Conformity to the Chapeau is a separate prerequisite that should be fulfilled when applying Article XX exemption. The Chapeau is fundamentally a prerequisite that the nation enforcing the ban act in good faith (Brian & Lee, 2007).17 UK is not acting in bad faith since it does not discriminate between exporting countries; all countries are required to meet the provided standards. The first element of the Chapeau, necessitating that a nation’s measures not be “arbitrary or unjustifiable,” has to be taken into account. There exist a number of aspects that are pertinent while establishing the legitimacy of the import ban, and this include traditional communities in addition to preceding negotiations. Therefore, there is no implication that the UK was acting in bad faith against Thailand, UK government can rely on the provision of GATT Article XX to defend this trade measure (Brian & Lee, 2007).18 Conclusion UK’s ban on the importation of orchids from Thailand is entitled to a protection under Article XX (a). Trade regulations based on the life or health of the plants interests qualifies as legitimate consideration concerning public morals. Considering the broad range of concerns that have impelled import and export regulations, the preservation of life or health of the plants is evidently vital within UK. The regulation supports a domestic legislation applied for protecting UK’s own citizens’ morale; this aspect supports the requirement of such trade restraint. Lastly, the UK’s import ban is not arbitrary or unjustified because it applies to all countries that do not meet the stipulated standards and is consistent with UK’s policy priorities. Bibliography Texts Brian, A, & Lee, B. (2007). Canada Challenges Belgian Seal Ban. Embassy (Can). Robert, G. (2009). Compassionate Consumerism within the GATT Regime. California Western International Law Journal. Vol. 39. Wappriita Annual Report. (2007). Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act. Annual Report. Legislations GATT, supra note 7, art. XX (a)-(b) GATT, supra note 7, at Chapeau Read More