The Environment and the Technical Barriers to Trade Agreement: Did the Reformulated Gasoline Panel Miss a Golden Opportunity?

Abstract

The various provisions of the General Agreement on Tariffs and Trade (GATT) envision import regulations being triggered because of features or characteristics of products seeking entry into a country's customs territory, not because of the processes utilized in producing or harvesting such products. The origins of this emphasis on products rather than processes dates from at least the GATT decision in the Belgian Family Allowances case, and was explicitly articulated in the well-known and controversial 1991 GATT panel decision in United States – Restriction on Imports of Tuna from Mexico. The precise language of the panel decision in that latter case provided that import measures must be designed to regulate the imported item because of its features or characteristics ‘as a product’, and not because of ‘harvesting’ techniques that may have been employed in gathering or collecting the item. Obviously, this product rather than process oriented approach makes it difficult for non-product based national environmental laws to pass muster under the GATT. By excluding such laws from the ambit of what the basic substantive provisions of the GATT permit in the form of import regulation, national governments are forced to seek the protection of the exceptions of GATT Article XX. These, however, have been very narrowly construed, with the impression given being that of unreceptivity to measures aimed at protecting the environment.