Interpretation of Trade-restrictive Environmental Measures Under SPS Agreement: Focusing on Comparison with GATT Exception

摘要

Reviewing the application of general exceptions of GATT, panels have not often quoted GATT Article XX （b) allowing trade-restricted measures necessary for the public health and provisions of the chapeau of Article XX, but there also have never been trade measures justified by those provisions except the measures in EC-Asbestos case. Particularly, the panels' narrow and strict reading of Article XX would make some important environmental measures to be seemingly inconsistent with GATT. US-Shrimp case is an example which would reveal the strictness and difficulties for the procedural and substantial requirements incorporated in Article XX to be satisfied for the exceptional measures' legitimacy under Article XX.Considering the concerning possibility of disguised SPS barriers and the difficulties in factual application of the SPS measures under Article XX（b), the SPS Agreement provides a more specific and clearer set of obligations/rights and principles for addressing the possible use of the health and safety measures as scientifically unfounded barriers to trade. Although the SPS Agreement is to elaborate the application of the provisions of Article XX（b), the Agreement is away from the GATTs protrade philosophy. The SPS Agreement, not marginalizing the legitimate environmental measures as mere exceptions, makes emphasis on the member countries' positive and specific rights/obligations in imposing the health and safety measures for the public health. This article asserts that such positive and specific stipulation of the rights/obligations of the member countries would contribute for the legitimation of the healthrelated environmental measures by avoiding the difficulties and strictness in satisfying the procedural requirements under Article XX as the "affirmative defences" clause and by reducing the potential abuse of disguised restriction on international trade.