338
Fourth, the law of the sea may also be relevant for the purposes of assessing the
requirements laid down in the introductory clause of Art. XX GATT.
70
According to
the consolidated WTO case-law, Art. XX must be applied in a two-tiered process.
First of all, it has to be considered whether the challenged measure fits within one
of the specific exceptions set out in subparagraphs (a)–(j). Once the measure has
passed the first test, it has to be determined whether its application meets the requirements of the introductory clause or chapeau, according to which the application of
the restrictive measure must not be such as to constitute “a means of arbitrary or
unjustifiable discrimination between countries where the same conditions prevail,
or a disguised restriction on international trade”. In particular, the WTO dispute
settlement organs, in appraising the existence of an unjustifiable discrimination,
consider it important to ascertain whether the defending State has made bona fide
efforts to reach a multilateral solution before resorting to unilateral action. For
instance, the lack of a cooperative approach was one of the main reasons for the
Appellate Body’s finding in US-Shrimp that the US ban failed to pass the “chapeau
test” of Art. XX GATT.
71
It is worth mentioning that, according to the Appellate
Young (2014), holding that the “sufficient nexus text”, even though still uncertain, “is likely to be
easily satisfied given the interconnectedness of environmental problems and especially the identification that such problems impact upon ‘public morals’ due to deepening and widening environmental ethic” (p. 317).
70 See US-Gasoline (AB), p. 22 and US-Shrimp (AB), para. 118 ff. In a nutshell, the device of the
chapeau is intended to avoid abuses of the general exceptions, namely to prevent them from being
surreptitiously invoked with a view to circumventing WTO obligations without any real intention
to pursue the legitimate aims listed in Art. XX GATT. See again US-Shrimp (AB), para. 158.
71 According to the Appellate Body, the application of the measure at hand did not meet this test,
because the United States had failed to engage “in serious, across-the-board negotiations” with all
affected countries before imposing the embargo (US-Shrimp (AB), para. 166). In particular, it
considered that the negotiations between the United States and five South and Central American
countries, having led to the conclusion of a regional treaty (the Inter-American Convention) for the
conservation and management of sea turtles on a regional basis, provided “convincing demonstration that an alternative course of action was reasonably open to the United States for securing the
legitimate policy goal of its measure, a course of action other than the unilateral and non-consensual procedures of the import prohibition under Section 609” (ibidem, para. 171). This general
preference for multilateral solutions to global environmental issues was restated in WTO Appellate
Body, United States–Import Prohibition of Certain Shrimp and Shrimp Products. Recourse to
Article 21(5) of the DSU by Malaysia (US-Shrimps (Article 21(5) AB)), Report, 22 October 2001,
para. 115 ff. There, the Appellate Body also clarified that avoiding arbitrary and unjustifiable discrimination under the chapeau of Art. XX GATT does not require the conclusion of an international agreement before instituting an embargo, but only the making of serious good faith efforts
to negotiate an agreement before imposing unilateral trade measures. While some authors have
argued that in the US-Shrimp reports the Appellate Body has interpreted the chapeau as imposing
a duty to negotiate as a pre-condition to the application of unilateral measures aimed at protecting
the environment (see e.g. Knox (2004), p. 41), a better reading seems to be that it censured the US’
choice to enter into negotiations with some countries (the five South and Central American States)
and not with others (the four South-East Asian appellees). It was this behaviour that, according to
the Appellate Body, constituted a discrimination (see Howse (2002), p. 508, holding that the
Appellate Body did not impose any “self-standing duty to negotiate”). This conclusion is also warranted by the ordinary meaning of Art. XX GATT, which makes no reference to multilateralism:
on this point see extensively Chang (2005), p. 47 ff. (stating that to infer a duty to negotiate from
M. I. Papa
Fourth, the law of the sea may also be relevant for the purposes of assessing the
requirements laid down in the introductory clause of Art. XX GATT.
70
According to
the consolidated WTO case-law, Art. XX must be applied in a two-tiered process.
First of all, it has to be considered whether the challenged measure fits within one
of the specific exceptions set out in subparagraphs (a)–(j). Once the measure has
passed the first test, it has to be determined whether its application meets the requirements of the introductory clause or chapeau, according to which the application of
the restrictive measure must not be such as to constitute “a means of arbitrary or
unjustifiable discrimination between countries where the same conditions prevail,
or a disguised restriction on international trade”. In particular, the WTO dispute
settlement organs, in appraising the existence of an unjustifiable discrimination,
consider it important to ascertain whether the defending State has made bona fide
efforts to reach a multilateral solution before resorting to unilateral action. For
instance, the lack of a cooperative approach was one of the main reasons for the
Appellate Body’s finding in US-Shrimp that the US ban failed to pass the “chapeau
test” of Art. XX GATT.
71
It is worth mentioning that, according to the Appellate
Young (2014), holding that the “sufficient nexus text”, even though still uncertain, “is likely to be
easily satisfied given the interconnectedness of environmental problems and especially the identification that such problems impact upon ‘public morals’ due to deepening and widening environmental ethic” (p. 317).
70 See US-Gasoline (AB), p. 22 and US-Shrimp (AB), para. 118 ff. In a nutshell, the device of the
chapeau is intended to avoid abuses of the general exceptions, namely to prevent them from being
surreptitiously invoked with a view to circumventing WTO obligations without any real intention
to pursue the legitimate aims listed in Art. XX GATT. See again US-Shrimp (AB), para. 158.
71 According to the Appellate Body, the application of the measure at hand did not meet this test,
because the United States had failed to engage “in serious, across-the-board negotiations” with all
affected countries before imposing the embargo (US-Shrimp (AB), para. 166). In particular, it
considered that the negotiations between the United States and five South and Central American
countries, having led to the conclusion of a regional treaty (the Inter-American Convention) for the
conservation and management of sea turtles on a regional basis, provided “convincing demonstration that an alternative course of action was reasonably open to the United States for securing the
legitimate policy goal of its measure, a course of action other than the unilateral and non-consensual procedures of the import prohibition under Section 609” (ibidem, para. 171). This general
preference for multilateral solutions to global environmental issues was restated in WTO Appellate
Body, United States–Import Prohibition of Certain Shrimp and Shrimp Products. Recourse to
Article 21(5) of the DSU by Malaysia (US-Shrimps (Article 21(5) AB)), Report, 22 October 2001,
para. 115 ff. There, the Appellate Body also clarified that avoiding arbitrary and unjustifiable discrimination under the chapeau of Art. XX GATT does not require the conclusion of an international agreement before instituting an embargo, but only the making of serious good faith efforts
to negotiate an agreement before imposing unilateral trade measures. While some authors have
argued that in the US-Shrimp reports the Appellate Body has interpreted the chapeau as imposing
a duty to negotiate as a pre-condition to the application of unilateral measures aimed at protecting
the environment (see e.g. Knox (2004), p. 41), a better reading seems to be that it censured the US’
choice to enter into negotiations with some countries (the five South and Central American States)
and not with others (the four South-East Asian appellees). It was this behaviour that, according to
the Appellate Body, constituted a discrimination (see Howse (2002), p. 508, holding that the
Appellate Body did not impose any “self-standing duty to negotiate”). This conclusion is also warranted by the ordinary meaning of Art. XX GATT, which makes no reference to multilateralism:
on this point see extensively Chang (2005), p. 47 ff. (stating that to infer a duty to negotiate from
M. I. Papa