Managing the trade-public health linkage in defence of trade liberalisation and national sovereignty: an appraisal of United States-measures affecting the production and sale of clove cigarettes

Tv Warikandwa,Pc Osode

doi:10.4314/pelj.v17i4.02

Abstract

Under the legal framework of the World Trade Organisation (WTO), countries have great flexibility to unilaterally adopt environmental regulations that have effect within their territories only. However, the same discretion does not apply to measures that adversely affect imports or exports. An absence of clear guidelines on how to address some of the attendant issues poses challenges to the effectiveness of a trade-environment linkage. Not surprisingly, attempts to link the environment and trade have resulted in a number of jurisprudentially significant cases in which the WTO's Panel and Appellate Body have tried to address critical questions about the Organisation's capacity to address or manage legal or quasi-legal subjects falling outside the scope of its legal framework. In this regard the Panel and Appellate Body reports in the case of United States - Measures Affecting the Production and Sale of Clove Cigarettes (US-Clove Cigarettes) have re-ignited the debate on the Organisation's existential challenge of balancing the rights of the sovereign to freely regulate matters pertaining to health or the environment within its domestic domain with the need to maintain the sanctity of the multilateral trade order. This article demonstrates that in the US-Clove Cigarettes case the WTO Panel and Appellate Body, whilst managing to successfully defend the integrity of WTO Member States' treaty commitments and the overarching importance of trade liberalisation within the organisation's policy foundations even in the context of public health-related regulations, failed to provide any substantive affirmation of the development-related challenges facing developing countries that are part of the WTO family.

Highlights

With trade measures adopted by the World Trade Organisation (WTO) Member States having moved beyond tariffs and quotas and covering issues of domestic regulation and policy, arguments that trade agreements undermine national sovereignty have been advanced.[1]
The Appellate Body concluded that the "treatment no less favourable" requirement of Article 2.1 prohibits both de jure and de facto example a measure may state that imported goods are subject to sales tax of 20% whereas domestically produced goods are subject to a sales tax of 10%." 50 WTO Appellate Body Report United States (US)-Clove Cigarettes para 175
According to Sinha, the WTO's Appellate Body reports in the cases of US-Clove Cigarettes and USMeasures Concerning the Importation, Marketing and Sale of Tuna and Tuna

Summary

Introduction

With trade measures adopted by the World Trade Organisation (WTO) Member States having moved beyond tariffs and quotas and covering issues of domestic regulation and policy, arguments that trade agreements undermine national sovereignty have been advanced.[1] Such arguments have been countered by critics who regard some of the trade measures adopted in pursuit of free trade as being discriminatory and question how such measures can be justified, especially where they are employed by developed countries against products originating from developing countries.[2] Nowhere are these arguments more important than in the context of the adjudication of disputes involving WTO Member States' regulation of public health-related matters affecting international trade. It will highlight the fact that both the Panel and Appellate Body failed to duly acknowledge the development-related challenges facing those developing countries that are part of the WTO family

Background to the US-Clove Cigarettes dispute

Arguments of the parties

Appellate Body decision

Evaluation of WTO Panel and Appellate Body decisions

Conclusion

Literature