Trade and the environment : the legality of unilateral measures with extraterritorial effect to protect the environment under the WTO/GATT
The preamble of the Agreement establishing the WTO, the so called Marrakesh Agreement, points out the general significance of environmental protection and sustainable development. The WTO law contains several provisions concerning the environment. However, it is not yet finally clarified in how far WTO Members can adopt measures to protect the environment where those measures have trade restricting effects. This question is particularly problematic where a Member implements such a measure unilaterally and the measure affects other countries’ policies. The question at stake is to what extent Member States can unilaterally adopt measures to protect the environment where those measures have extraterritorial effect, i.e. where those measures require other states to change their policies in order to gain access to the importing country’s market. The GATT/WTO adjudicating body had to deal with two disputes addressing this issue, namely the Tuna-Dolphin dispute5 and the Shrimp-Turtle case. These two disputes are of outstanding importance for the issue of unilateral measures with extraterritorial effect to protect the environment. Both disputes dealt with the question whether import embargoes, that were inconsistent with Article XI of the GATT for they imposed quantitative import restrictions, could be justified under Article XX (g) of the GATT as measures to conserve exhaustible natural resources. The two decisions interpreted Article XX of the GATT, particularly paragraph g of that provision, differently. The question whether countries can unilaterally adopt measures to protect the environment where those measures have extraterritorial effect must be analysed against the backdrop of both WTO jurisprudence and general principles of international law.
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