Gateways to the Precautionary Principle in WTO Law

Abstract

One of the persistent problems of the WTO is the need to find an appropriate balance between trade rules and environmental protection measures. One example is the tension that arises from the constraints that WTO law places upon Members who wish to take a precautionary approach to environmental protection. Commentators have been divided on the question of how far the WTO Agreement permits or accommodates the application of the precautionary principle. 1 In addition, the limited political consensus achieved by the Committee on Trade and Environment has meant that disputes must normally be resolved by panels and by appeal to the Appellate Body. 2 The purpose of this article is to explore the jurisprudence of the Appellate Body to discover how and in what circumstances the precautionary principle might be relevant to the application of WTO law. In the absence of an explicit provision, the precautionary principle can only have an effect in WTO law if it is introduced through ‘gateway’ provisions. The term ‘gateway’ is used here to describe a provision that allows non-trade principles or concepts to be introduced into the WTO Agreement. 3 Gateway provisions may allow the precautionary principle to affect the application of WTO law in three ways. First, it may be explicitly incorporated. Second, it may take effect through the exercise of legitimate discretion by the Members. Third, it may be introduced by reference to external sources such as State practice. 4