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This part of the paper considers the decision of the Appellate Body (AB) in the shrimp/turtle dispute,41 and considers the way in which procedural due process norms were invoked by it in condemning the manner in which the relevant U.S. import restrictions had been applied. The intention is to examine both how these norms were developed within the specific doctrinal context of the GATT agreement, and what their relevance is likely to be for the EC decision-making process.
Put briefly, the Shrimp/Turtle case concerned US prohibitions on the importation of shrimp or shrimp products from countries which had not been certified pursuant to so-called Section 609 which forms part of the domestic public law of the US. This provided that certification was to be granted to countries with a fishing environment which did not pose a threat to the incidental taking of sea turtles in the course of shrimp harvesting, and hence in which there was no risk, or only a negligible risk, that sea turtles would be harmed by shrimp trawling. It provided further that certification could be granted to harvesting nations which provided documentary evidence of the adoption of a regulatory programme governing the incidental taking of sea turtles in the course of shrimp trawling that was comparable to the United States programme, and where the average rate of incidental taking of sea turtles by their vessels was comparable to that of the United States.
The AB accepted that the above regime was of a kind which is capable of falling within the GATT, Article XX(g) exception. It related to the conservation of exhaustible natural resources, and was made effective in conjunction with restrictions on domestic production or consumption.42 Nonetheless, the AB went on to find that the manner in which the measures had been applied was such as to render them incompatible with the `chapeau' to Article XX. This requires that such measures not be applied in a manner which would constitute a means of arbitrary or unjustified discrimination between countries where the same conditions prevail, or a disguised restriction on trade. A wide range of factors contributed to its findings in this respect including, for example:
· the failure of the United States to engage in serious across-the-board negotiations with third countries, with a view to concluding bilateral or multilateral agreements. Thus the measures were applied in a manner which was unilateral and non-consensual;
· the rigidity with which officials made certification determinations, and the existence of little or no flexibility regardless of how appropriate the US model harvesting programme was for the conditions prevailing in the exporting state:
· the failure of the United States to respect standards of basic fairness and due process in the application of Section 609. Particularly important in this respect were the absence of any opportunity for the applicant to be heard or to respond to arguments before a certification decision was adopted, the failure to render a formal reasoned decision and to notify the party of it, the absence of any procedure for appeal or review of a decision to deny certification, and overall the `singularly informal and casual' nature of the procedure, making it impossible for applicants to know whether Section 609 was being applied in a manner which is fair and just.
This paper will turn first to a preliminary issue in respect of the AB's findings in this respect. This relates to the link between the procedural defects identified by the AB and the concepts of unjustified and arbitrary discrimination which underpin the Article XX chapeau.
The AB findings are somewhat ambivalent as regards the role played by the concept of unjustified or arbitrary discrimination. Its language is such on occasion as to suggest the emergence of standards for the application of import restrictions which operate independently of any discrimination threshold. Thus, the AB speaks of the principle of good faith, and the requirement which flows from this that the right to invoke GATT exceptions be exercised `reasonably'.43 Elsewhere, it speaks of abuse or misuse of the provisional justification made available by Article XX(g), observing that a measure may amount to such `not only where the detailed operating provisions of the measure prescribe the arbitrary or unjustifiable activity, but also where a measure, otherwise fair and just on its face, is actually applied in an arbitrary and unjustifiable manner'.44 It is self-evident that measures may be applied in a manner which is arbitrary or unjustified, or indeed in a manner which is not reasonable, while not giving rise to discrimination which is arbitrary or unjustified. There is a clear difference between measures which are arbitrary and/or unjustifiable, and those which discriminate arbitrarily and/or unjustifiably.45
Elsewhere, however, the AB is more careful to assert the existence of a link between the behaviour in question and the (unjustifiably or arbitrarily) discriminatory outcome. Hence the AB cites differing treatment as regards `phase-in' periods for compliance, and technology transfer efforts, as factors contributing to a finding of unjustifiable discrimination. The rigid and unbending standards according to which the possibility of certification is assessed are conceived as discriminatory because they imply the same treatment for countries characterized by diverse conditions, and do 'not allow for any inquiry into the appropriateness of the regulatory program for the conditions prevailing in those exporting countries'.46 Also important to the assessment of the AB is the failure of the United States to engage in `serious, across-the-board negotiations' before instituting the regime in question. This `failure to have prior consistent recourse to diplomacy...produces discriminatory impacts on countries...with which no international agreements are reached or even seriously attempted'.47 The fact that the United States `negotiated seriously with some, but not with other Members is found to be discriminatory in effect and unjustifiable.48 Finally the AB, in focussing upon the lack of basic fairness and due process accorded to those whose applications for certification are rejected, concludes that these countries are (arbitrarily) discriminated against vis-à-vis those Members which are granted certification.49
It is clear that there is a tension inherent in the AB report. It shifts somewhat uneasily between recourse to standards which are not predicated upon an assessment of comparative treatment - basic fairness, just treatment, reasonableness - to notions of discrimination which by definition require a comparative perspective. In so far as the AB, straining to remain within a certain interpretation of the text of the Article XX chapeau, focuses upon a different kind of discrimination from the discrimination inherent in the breach of the substantive GATT article,50 this emerges at times as a less than adequate or convincing peg upon which to hang its various wide-ranging due process concerns. Not only is it not always clear what the factual basis of the discriminatory conduct is (notably as regards the comparison between the fairness and due process treatment of those whose applications are successful and those whose are not), but in normative terms one is left with the feeling that in many respects it is not the discrimination as conceived by the AB which renders the US behaviour objectionable, but the behaviour itself.
Thus, for example, the failure of the United States to negotiate seriously with some of the parties concerned is surely objectionable in and of itself, rather than on the basis that it did pursue serious and effective negotiations with some parties. Had the US treated all Members with the same high-handed disrespect, negotiating with none rather than some, its behaviour would, if anything, have been worse rather than better. The various international law instruments which the AB cites in order to highlight the importance attached to multilateral solutions to environmental problems, especially where the resources in question are situated outside of the territory of the importing states, are not predicated upon the logic of discrimination, but upon the need for international cooperation and consensus. Even-handedness in respect of a failure to negotiate would not in any sense mitigate the wrong-doing. Similarly, had the US denied basic due process to all applicants, including those who were by chance successful (and in certain respects this does indeed seem to have been the case in the Shrimp/Turtle dispute), thus pursuing an entirely consistent, though fundamentally procedurally flawed, approach, few would argue that this ought to attenuate as opposed to exacerbate the legal position of the US.
It is interesting to observe in this respect that the AB notes that GATT, Article X.3 bears upon the matter at hand. This lays down certain due process requirements relating to the uniformity, impartiality and reasonableness with which the relevant measures are to be administered, and to judicial, arbitral or administrative review and correction of the administrative action concerned. This is conceived as the AB as establishing minimum standards for transparency and procedural fairness, and although the AB does not purport to apply this provision specifically in the context of the case at hand it notes that:
Inasmuch as there are due process requirements generally for measures that are otherwise imposed in compliance with WTO obligations, it is only reasonable that rigorous compliance with the fundamental requirements of due process should be required in the application and administration of a measure which purports to be an exception to the treaty obligations of the Member imposing the measure and which effectively results in a suspension pro hac vice of the treaty rights of other Members.51
This, like the previous arguments, militates strongly in the direction of an approach to standards of procedural fairness and due process which goes beyond the non-discrimination premise. After all, as noted, Article X.3 is predicated, inter alia, upon the concept of reasonableness which operates without reference to considerations of discrimination.
What is clear, then, is that procedural factors played an important, perhaps crucial, role in the AB's report. The failure of the United States to engage in serious, comprehensive, negotiations emerges as one such factor, alongside a more general conception of procedural fairness and due process. What is less clear is the basis upon which they did so, and in particular the issue of whether their relevance was confined to contributing to a finding of unlawful discrimination within the meaning of the Article XX chapeau, or whether they might be regarded as having assumed an independent life of their own. As noted above, the AB's report is somewhat ambivalent in this respect. Moreover, in so far as it does posit a link between procedural deficiencies and discrimination, due partly to its conviction that the reference to discrimination in the chapeau must be something different and separate from the discrimination inherent in the breach of the substantive GATT obligation,52 its reasoning is at times somewhat strained, particularly as regards basic fairness and due process considerations. Yet, whatever the specific intention of the AB in this report, and regardless of the AB's not always entirely convincing insistence that it is through the lens of discrimination that such procedural values find expression in GATT Article XX, the report serves to highlight the broader issue of the proper place of process considerations in assessing the legality of Member restrictions on trade. This is a debate with important implications for the EU - which can be illustrated, for example, if we apply it to the context of the cosmetics Directive discussed above, and to the need for the EC to pursue in a fair and comprehensive way the search for consensus on scientifically validated alternatives to animal testing before introducing a ban - and also for the premises and legitimacy of the evolving WTO system. The relevance of the debate for the aircraft noise case is also clear. There, in the context of a legal system which denies the WTO direct effect, it is proposed that the WTO, and the internationally agreed standards to which general reference is made in the WTO and on which derogations are often required to be based, enter that same legal system by means of a procedural route, especially in the guise of the reasoning requirements.
Before turning to consider these issues more generally, a preliminary observation may be made. The AB does not offer a convincing basis in law for the specific values which it emphasises. In terms of the duty to negotiate, it points to the `very policy objective' of the measure in question, and to a range of international environmental instruments which offer sustenance in this respect in view of the factual background of the case at hand.53 More generally, in construing the Article XX chapeau, the AB invokes the principle of good faith, one expression of which it considers the chapeau to constitute. It notes that this principle is both a principle of law and a general principle of international law, and that it conceives its task as being to interpret the chapeau, `seeking additional interpretative guidance, as appropriate, from the general principles of international law'.54 It offers, in a footnote, some suggestions for further reading on this general principle, including references to cases before the International Court, and a specific quotation from from an academic work on this subject. This quotation is suitably vague, equating bona fide with `appropriate and necessary' and `fair and equitable'.55 Thus, almost from nowhere the AB is articulating a range of standards, in this case procedural standards, compliance with which is to be regarded as a prerequisite for lawful derogation from a GATT obligation. It remains uncertain as to what extent these standards remain specific to the circumstances of the case at hand, and to what it extent they may be generalizable to additional categories of cases.
It is thus clear that there is considerable uncertainty as to the origin and scope of the due process norms invoked by the AB in the shrimp/turtle ruling. It is this very flexibility which renders the development potentially so important. Such is the malleable nature of the concepts employed (basic fairness and due process for example) that the creative potential which underpins them is vast. One only need look to the jurisprudence of the US Supreme Court, and other transnational regimes such as the ECHR, and to witness their expansion of the scope and application of due process and procedural constraints, to appreciate the degree of authority that this development implies for the AB in its interpretative role.
It is interesting to observe, as does Marise Cremona in her chapter in this book that a parallel development has to some extent taken place in the EU.56 The European Court in developing general principles of Community law has looked both to process and to substance. Thus, for example, it has developed general principles pertaining to the protection of legitimate expectations, legal certainty, and to the concept of a fair hearing and rights of the defence. The duty to give reasons is already inherent in the EC Treaty in so far as it concerns Community institutions, but has been construed by the European Court as binding also on the Member States when they are acting within the scope of Community law. Not only have these general principles been developed on a legal basis which is textually insecure, as in the WTO example, but there are similarities too in terms of their scope of application. Thus, the general principles are not only binding upon the Community's own institutions, but also upon the Member States when they act to implement Community law or, significantly for our purposes, to derogate from one of the fundamental freedoms guaranteed by the Treaty. Thus, where a Member State seeks to depart from the principle of free movement, in the name of one or other societal interest recognized by Community law, it may only do in a manner which is consistent with the general principles of Community law. And in fact the proportionality test, encompassing notions of rational connection, necessity, and non-arbitrariness, was developed in a number of early ECJ cases in relation to the EC Treaty's version of the Article XX chapeau, i.e. the provision in Article 30 (ex 36) that the exceptional measures permitted by that provision "shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States".57
That said, although it is clear that parallel developments have taken shape in the EU and WTO in this respect, important differences have already emerged in the nature of the norms which are deemed to underpin attempts to derogate from rules in one or other of the two systems. Thus, for example, while the concept of legitimate expectations is one of the most important and most often invoked general principles of Community law,58 the AB has shown a marked reluctance thus far to accord it a role in the interpretation and application of the WTO Agreement. Thus, for example, in EC Classification of Certain Computer Equipment the panel invoked the concept of (substantive) legitimate expectations in assessing whether the EC, in classifying LAN equipment as telecommunications equipment rather than ADP machines, had acted inconsistently with GATT Article II.1 by according LAN equipment treatment less favourable than that laid down in a tariff concession. The United States argued, on the basis of the negotiating history and the actual tariff treatment accorded to LAN equipment during the relevant negotiations that it reasonably expected the EC to treatment this equipment as ADP machines. The panel accepted that legitimate expectations are a `vital element in the interpretation of Article II and tariff schedules'. While accepting that the circumstances of the conclusion of a treaty may be a supplementary means of interpretation of that Treaty,59 and that the subsequent classification practice of the EC is a relevant factor, the AB on the contrary found that the (subjective) legitimate expectations of an exporting Member are not relevant in assessing whether a violation of Article II.1 has occurred. It did so on the basis of its interpretation of the GATT and of the Vienna Convention, observing that:
The purpose of treaty interpretation under Article 31 of the Vienna Convention is to ascertain the common intentions of the parties. These common intentions cannot be ascertained on the basis of the subjective and unilaterally determined "expectations" of one of the parties to a treaty.60
That differences in approach will emerge is in a sense inevitable given the very different conceptual basis of the EC development, relative to that in the WTO. Many of the procedural norms in question arise in the context of the European Court's jurisprudence on the protection of fundamental human rights; a conceptual basis which thus far is lacking in the AB, and which took shape in the EU in very particular circumstances concerned with reinforcing the supremacy of Community law. Without engaging here in a detailed analysis of the different process norms protected in the two legal orders under discussion, it is nonetheless important to highlight the legal issues which arise in the EU as a result of differences in conception in this respect.
If we are not entirely misconceived in our reading of the GATT/WTO there would appear to be a number of situations in which these procedural type norms developed by the AB would be of relevance before the European Court, if the European Court is to play a role in ensuring the GATT/WTO compatibility of Community law and/or national law.
First, and most obviously, in the assessment of the legality of Community measures restricting third country trade;
Second, in the context of the Community's common import regulation,61 and specifically Article 19(2) thereof. This provides, or is construed as providing, specific authorization to the Member States in the context of the operation of the common commercial policy for the maintenance of such national measures which are necessary to ensure protection of one of the societal interests laid down. The list of such interests is identical to that in Article 30, though the final sentence to Article 30 is not replicated in the context of the common import regulation. It has been argued that `for reasons of consistency', `mandatory requirements in the meaning of the Cassis de Dijon case law should be added' to this list;62 Thus here the European Court is placed in the position of assessing the legality of Member State restrictions on third country trade. It does so on the basis of the common imports regulation which is, in turn, closely related to the EC Treaty free movement rules and to its internal market objectives.63 In construing the common import regulation (and by implication the free movement rules more generally if these two regimes are not to diverge) the European Court must, from a WTO perspective, do so in a manner which is WTO compliant.
Third, in the application of Articles 28-30 TEC. In so far as a Member State restriction on intra-Community trade applies to all goods in free circulation, it will also restrict the entry of third country goods. Any derogation from the principle of free movement within the internal market must be GATT/WTO compliant in so far as it relates to third country goods. As the notion of a customs union demands, the same rules are in practice applied to all goods in free circulation regardless of their origin.64 Thus if the Article 30 derogation is not to be applied in such a way as to breach GATT/WTO norms it will have to be read in a manner which is consistent with the obligations this imposes, including the due process obligations articulated in the shrimp/turtle ruling. Of course this point takes us well beyond the single issue of the nature of the Community's general principles and the question of whether these might be anticipated to evolve in the light of developments in the WTO. It raises the much broader issue of the capacity of WTO law to `spillover' to the Community's legal order, not merely in respect of its formulation of external trade policy, but in respect of its single market objectives. It does, however, serve to highlight that in so far as such spillover does occur, it may be anticipated to be wide-ranging and to affect Community norms with a relevance well beyond the free movement sphere. This is an issue which arises also in the case studies outlined above.
Leaving aside for the time being the specific question of the implications of the Shrimp/Turtle report for the EU, it is necessary to consider more generally the issues raised by the due process dimension of this report for the international trading order. The report of the AB is politically astute. The subject matter of the dispute is sensitive and pertains to environmental protection, and in this respect was viewed very much as a `test case'. The US measures are of a kind which are particularly controversial. Not only do they seek to promote the protection of resources (sometimes) situated outside of their territory, but more importantly they seek to do so on the basis of country based (rather than batch-by-batch based) trade restrictions pertaining to compliance with production process standards. The AB was in a difficult position. And yet it succeeded through recourse to the `chapeau', and to the distinction between the nature of national restrictions, and the circumstances of their application, to walk a fine line between the demands of the environmentalists and those of the free trade lobby. Nonetheless, though expedient in the case at hand, the approach adopted by the AB raises a number of problems.
Most obviously the creativity of the AB, in formulating due process requirements on a textual basis which is, at best, rather weak, gives rise to important questions concerning the legitimacy of its decision-making role.65 This is exacerbated by the very considerable uncertainty surrounding both the legal basis and the content of its findings. Moreover, it is not at all clear how constructive a development this due process turn will prove to be more generally in distinguishing legitimate from illegitimate measures in the context of GATT rules and exceptions. It was at its most effective in the Shrimp/Turtle dispute, accompanied as it was by the element of surprise. The US had not taken steps to wrap up its measures in the colours of due process, because it had not anticipated its legal obligation to do so.66 In future, with states on their 'due process' guard, clear cut cases of due process abuses are less likely to arise. In so far, therefore, as the decision of the AB might be seen as having served `basic fairness' and procedural due process in the conduct of trade relations, that should be conceived as a positive development, especially in so far as the duty to negotiate serves to prevent such disputes from arising in the future. However, absent the element of surprise it is not at all clear that procedural norms can succeed in serving as a workable or effective `bright-line' according to which the legality of measures may be assessed.67 On the other hand, the requirement of giving reasons to explain why internationally agreed standards were not followed in cases like the Omega hushkits dispute above, may serve as a more effective means of revealing protectionist motives or other unconvincing explanations for trade restraint.
There are those who assert a potentially important role for procedural type rules in this respect. Thus, in the context of Articles 28-30 TEC, Maduro argues that `the Court of Justice should not second-guess national regulatory choices, but should instead ensure that there is no under-representation of the interests of nationals of other Member States in the national political process'.68 One can see elements of this too in the thinking of AG van Gerven in Gourmetterie van den Burg, a case before the European Court which is not entirely dissimilar in terms of the issues it raises to the shrimp/turtle dispute.69 The Advocate General, in assessing the proportionality of the measure at hand, observes that it was adopted on the basis of a unilateral appraisal of the interests involved, and without taking into account interests which may warrant or justify the prohibited activity in question.
In this sense, the kind of procedural values highlighted by the AB in the shrimp/turtle report may be viewed as operating to promote more `inclusive'70 political processes, whereby `outsiders' in national or other terms may secure access to previously closed sites of political authority within states. Thus, in that regulatory choices (and many other kinds of decisions) adopted within a single state have important consequences outside of the territory of that state, the state no longer represents the uniquely appropriate site for democratic decision-making.71 In the same way as the capacity of state-based government for effective rule may be diminished by virtue of a disjunction between the levels at which political and economic power operate, so too democracy may be undermined where the demos is territorially defined on the basis of pre-existing allegiances, rather than on the basis of actual interdependence; physical and economic.
Thus, it may be argued that the WTO, through the constitution of due process requirements, promotes transnational political engagement which may serve to attenuate the gap between atomistic political community, and multiple, over-lapping communities defined by inter-dependence rather than splendid isolation. In so far as these due process requirements seek to promote the audibility of the voices not merely of `foreign' governments, but also of individual traders (for example exporters of shrimp refused certification under Section 609), there has been a tendency to view the emerging democracy according to deliberative rather than representative models and, in keeping with such models, to lay emphasis upon the open-ended and adaptable nature of actors' preferences and the value of experimentation and mutual learning in the adjustment of such preferences.72 In this sense the challenge for the WTO would be to ensure that states (and the EU itself) do more than cynically construct the trappings of due process, and that they listen, explain, respond and, where appropriate, revise. It is for this reason that the previously mentioned `element of surprise' is all important, and that the due process standards according to which they will be assessed capture the `essence' of the deliberative ideal; an essence which depends in part upon its very elusiveness, and upon its capacity to resist translation into fixed rules which may routinely and cynically applied.
There is of course a strange irony inherent in what is being described above. The Appellate Body, against a backdrop of radical value pluralism, is adopting a `lighter' touch in terms of substantive review. In addition, however, it is scrutinizing and evaluating the decision-making processes underpinning the contested measures adopted within the Member States. In invoking exceptions to the GATT the Appellate Body insists that certain procedural standards be complied with; this notwithstanding the procedural deficiencies which underpin the functioning of the WTO, including the activities of its Appellate Body.73 Yet this is perhaps an irony which we can enjoy. In the first place, as Walker also observes, hypocrisy may have a civilising effect. The EU, for many years, endorsed a form of human rights conditionality vis-à-vis its own members and its trading partners, the standards underpinning which were not binding upon itself. The hypocrisy did not go unobserved and over time the EU accepted that it too was bound to comply with the relevant standards of protection. Equally, it is by no means uncommon that a non-state polity (notably the EU) challenges us to look more closely and more critically at the functioning of the state, thus inducing a form of critical reflexivity. Talk of subsidiarity in the EU focussed attention upon the premises underpinning the distribution of authority within the Member States, and in particular the place of sub-state authorities therein. Talk of transparency in the EU served to highlight the secretive nature of many government functions within the Member States. Talk of comitology reminded us to study more closely, and more critically, the functioning of committees at the national level. Bad practices at a level of governance susceptible to criticism due to its disassociation from the state with its traditionally `thick', territorially bounded legitimacy, have served to induce a self-consciousness about the premises underpinning the exercise of power even at a level (within the state) where traditionally such premises lay beyond the critical gaze.
The irony of the WTO preaching due process and basic fairness to the Member States aside, it is readily apparent that there is something interesting and important happening here. At the same time as one non state polity - the EU - is looking increasingly to procedural techniques as a means of circumscribing Member State autonomy in governance,74 against a backdrop of growing substantive flexibility, another (the WTO) is looking to procedural techniques to define the scope of residual Member State autonomy in a framework of market integration. Thus in the context of both `negative' and `positive' integration, the non state polity is using procedural techniques both to guide Member State intervention in the market, and similarly to define the limits to that intervention. Particularly important in this respect are rules pertaining to participation, consultation, and `due process' concerns. Against a backdrop of radical value pluralism, in integrating markets, such procedural techniques are increasingly deployed in the management of transnational markets. They do not represent a panacea. Nonetheless they offer one way of assessing the legality of Member State restraints on trade, and the additional prospect that their application might serve to enhance the quality of decision making within states, in particular by enhancing the audibility of voices from outside the territory of the state concerned.
41 Supra n. 22.
42 This of course presupposes that the measures in question were contrary to GATT in another respect. The panel report found the measures to be contrary to GATT, Article XI, and this finding (though contentious, especially as regards its relationship with GATT, Article III) was not appealed by the United States.
43 Para. 158.
44 Para 160.
45 At Para 150 the AB states that, as decided in the US-Gasoline case, the nature and quality of the `discrimination' referred to in the chapeau to Art XX "is different from the discrimination in the treatment of products which was already found to be inconsistent with one of the substantive obligations of the GATT 1994, such as Art I, III or XI", because "the provisions of the chapeau cannot logically refer to the same standard by which a violation of a substantive rule has been determined to have occurred". It is arguable, however, that a different interpretation of the phrase in the chapeau to Art XX is possible. Why is it illogical for the `discrimination' therein to refer to the discrimination which established the breach of one of the other GATT norms? An equally plausible interpretation is that Article XX exists precisely to exempt measures which have been found to discriminate, but that the scope of the exemption is exhausted where the discrimination in question becomes arbitrary and unjustifiable. Thus only a reasonable, proportionate, necessary etc. degree of discrimination will remain within the bounds of Article XX. The terms `arbitrary' and `unjustifiable' are sufficiently broad and open to encompass exactly the sorts of procedural standards of fairness and rationality which the AB goes on to require of the US in this case. And if it were accepted that the discrimination referred to in the chapeau simply refers to the nature of the measure which has already been found to breach one of the other substantive GATT provisions, then the focus on the limits of the exception need not be on differential treatment as such, but rather on the excessive or unnecessary, or arbitrary nature of the way in which the respondent Member has chosen to act. Of course, if the GATT over the years since its original drafting - and just like the EC Treaty before it - has gradually been `bent' to address not only de jure and de facto discrimination, but also obstacles to trade which seem genuinely non-discriminatory in nature (Weiler, 1999, supra n.2), then the focus on `discrimination' in the chapeau to Article XX would indeed have to relate to the manner in which one of the non-trade-based regulatory policies in paragraphs (a)-(j) was being pursued or applied, unless the AB chose to focus instead on the notion of a `diguised restriction' on trade.
46 Para. 165.
47 Para. 167.
48 Para. 172.
49 Para. 181.
50 See supra n. 45 for discussion.
51 Para. 182.
52 Supra n. 45.
53 Para. 168. Two of these instruments, the Rio Declaration on Environment and Development and Agenda 21, are referred to in the Decision on Trade and Environment which provided for the establishment of the WTO Committee on Trade and Environment. In addition, the WTO Members in the Report of the Committee on Trade and Environment, themselves state a preference for multilateral solutions to environmental problems of a transboundary or global nature, namely solutions based on international cooperation and consensus.
54 Para. 158. C.f. Classification of Certain Computer Equipment where the AB rejected the panel's conclusions that interpreting the meaning of a tariff concession in the light of the `legitimate expectations' of the exporting Members is consistent with the principle of good faith interpretation under Article 31 of the Vienna Convention.
55 See footnote 156. The work which is cites is B. Cheng, General Principles of Law as applied by International Courts and Tribunals (Stevens and Sons, Ltd. 1953).
56 M. Cremona " Neutrality or Discrimination? The WTO, the EU and External Trade".
57 It is true that in the EC context, however, the limits on unilateral action by Member States deriving from procedural requirements of negotiation and consultation with the Commission and with other Member States are more often than not specifically imposed by secondary legislation which aims to harmonise the rules in the sector in question, rather than being developed through the kind of reasoning seen in AB shrimp report: see e.g. case 28/84 Commission v. Germany [1985] ECR 3097 on Germany's attempted import ban on feeding-stuffs for calves containing certain additives.
58 T. Tridimas, General Principles of Community Law (Oxford: OUP, 1999) and S. Schønberg Legitimate Expectations in Administrative Law (Oxford: OUP, 2000)
59 Pursuant to Article 32 of the Vienna Convention.
60 Supra, n. 54, European Communities - Classification of Certain Computer Equipment, para. 84. It is interesting that the AB equated legitimate expectations with a purely subjective conception of what the United States had come to expect on the basis of the tariff schedule and negotiations, whereas the United States in its arguments talks of the reasonable (connoting an objective assessment) expectations of the partners (plural) of the Member which made the concession. Generally, though, the scepticism of the AB as regards the notion of legitimate expectations is indicated by its propensity to place the term in inverted commas whenever reference is made to it.
61 Council Regulation 519/94 on common rules for imports from certain third countries OJ 1994 L67/89
62 P. Demaret, `Environmental Policy and Commercial Policy: The Emergence of Trade-Related Environmental Measures (TREMs) in the External Relations of the European Community' in M. Maresceau, The European Community's Commercial Policy after 1992: the Legal Dimension (Martinus Nijhoff, 1993) p. 337. If consistency is indeed to be achieved then this would imply that attempts to apply this regulation in a manner which is consistent with GATT/WTO will spill over to Articles 28-30 TEC.
63 See, for example, the recital in the preamble to Regulation 519/94 "Whereas completion of the common commercial policy as it pertains to rules for imports is a necessary complement to the completion of the internal market and is the only means of ensuring that the rules applying to the Community's trade with third countries correctly reflect the integration of the markets".
64 This is not intended to suggest that GATT Article XXIV would serve to justify the Community sanctioned national restrictions in such a situation; though this issue does raise interesting questions about the scope of Article XXIV. Even if Article XXIV can justify measures which are inconsistent with Articles III or XI of the GATT (in other words these are conceived as falling within the phrase `certain other [as well as MFN] GATT provisions' in Turkey - Restrictions on Imports of Textiles and Clothing Products - it would be necessary to demonstrate that the formation of that customs union would be prevented if it were not allowed to introduce the measure at stake; the measure in question being the application of Article 30 or mandatory requirements in such a way as would imply a breach of GATT rules in so far as it is being applied to third country goods in free circulation. The customs union in question (the Community internal market) is not dependant in its operation upon Article 30 etc. being applied in a way which is not consistent with parallel GATT exceptions. On the contrary, it is open to the Community either to interpret these provisions in the light of its GATT obligations, or to introduce harmonizing legislation at Community level which is such to pre-empt Member State recourse to Article 30. This latter possibility is assisted by virtue of the European Court's insistence (see Case C-1/96, Compassion in World Farming, [1998] ECR I-1251) that even minimum harmonization measures may be `exhaustive' in nature and operate to pre-empt recourse to Article 30, though doubts remain as to whether this would be so in the context of, for example, measures predicated upon Article 175 TEC which by definition allow Member States to adopt more stringent measures subject to compliance with the Treaty. But whichever, if either, of these two routes comes to be preferred (WTO friendly interpretation or pre-emptive harmonization) will have enormous constitutional significance in the EU, in terms of the role and approach of the European Court, the relationship between negative and positive integration measures in the EU, and the regulatory autonomy of Member States.
65 For an excellent discussion of this see R. Howse, `Adjudicative Legitimacy and Treaty Interpretation in International Trade Law: The Early Years of WTO Jurisprudence' in Weiler, J.H.H, supra n. 8 above. Another view we offer is that the AB could have mounted a more convincing argument in favour of these developments through recourse, not to the concept of discrimination, but to the notion of a disguised restriction on trade also included in the Article XX chapeau. After all many of the elements of the AB's due process norms are transparency related and so could be justified as necessary to make a proper assessment of whether the measures in question were applied in such a way as to be a disguised restriction on trade. Equally, within the concept of a disguised restriction one might be able to introduce the idea of least restrictive means, and in this way ground the duty to negotiate aspect of the AB's findings. Further, the possibility of giving a different interpretation to the notion and significance of `discrimination' in the chapeau is suggested at n. 45, above.
66 Though perhaps at least in respect of the duty to negotiate it ought to have done so, not least in the light of the Panel's findings in the Tuna/Dolphin II report.
67 This is a phrase used by Howse and Regan, supra n. 20, where they talk of `bright-line rules desinged to avoid the need for context-sensitive judgment'.
68 M. Maduro Poiares, We, the Court: The ECJ and the European Economic Constitution (Oxford: Hart Publishing, 1998) p. 173.
69 Case C-169/89, [1990] ECR I-2143..
70 See also R. Howse and K. Nicolaidis, `Legitimacy and Global Governance: Why Constitutionalizing the WTO is a step too far?' (unpublished manuscript, 2000)
71 See also the chapter of Miguel Maduro in this volume, "There is No Such Thing as Free or Fair Trade".
72 J Cohen and C Sabel "Directly-Deliberative Polyarchy" (1997) 3 E.L.J. .313, O Gerstenberg and C Sabel "Directly Deliberative Polyarachy: an Institutional Ideal for Europe?" in C. Joerges and R. Dehousse (eds) Good Governance and Administration in Europe's Integrated Market (Forthcoming, OUP 2001).
73 As Walker observes in his chapter above, there are those who argue that the coherent theme of the Seattle protests was procedural, `an outcry against the general exclusion of civil society from all but the very margins of the WTO framework'. Walker, p. above, and footnote 64.
74 See, for example, the chapters by C. Barnard and J. Scott in de Burca and Scott, Constitutional Change in the EU: From Uniformity to Flexibilty? (Hart Publishing, 2000), and the growing interest in the `open method of coordination' with its emphasis upon bench-marking and experimentation, first deployed in the context of the EU employment strategy.