Application For Leave To File A Written Brief, Pursuant To Appellate Body Special Procedure, WT/DS/135/9
Pursuant to the Special Procedure I have the honor of presenting my request for leave of the Appellate Body to file an amicus curiae brief in the matter of European Communities-Asbestos.
Description of the Applicant
I, Robert Lloyd Howse, am a full professor of international law at the University of Michigan Law School, Ann Arbor. I teach the law of the World Trade Organization and, with Prof. Bruno Simma, public international law. I have also taught WTO law at Harvard Law School, the University of Toronto, and in the Academy of European Law, European University Institute, Florence. I am a member of the faculty of the World Trade Institute, Berne. My objectives are research and scholarship that addresses major systemic issues in the world trading system from a jurisprudential perspective, with institutional structure and legitimacy being a key preoccupation. My treatise on international trade law, co-authored with Michael J. Trebilcock, is used as a textbook in many of the leading universities of the world—the London School of Economics, Harvard University, Columbia University, the European University Institute, Stanford University, Tokyo University and many others in North America, Europe, Latin America and Asia. A central systemic issue that is addressed in many of my scholarly writings is the relationship between WTO law and domestic regulations. I have published articles on this issue in many leading journals, including the European Journal of International Law, the Journal of World Trade, the International Review of Law and Economics, and the European Journal of Law and Economics. On five occasions in the last two years alone I have been asked to address meetings of the American Society of International law on such subjects. I do not receive any regular income from any institution or person other than the University of Michigan. Outside the United States, I have a small consulting practice. I have acted in the past as a consultant to the Canadian Government on a range of public policy matters. However, I have also and subsequently acted, in an international litigation context, as a consultant to parties in an adverse relationship to the Canadian government, without any party in the matter raising a conflict of interest issue. No one is providing any financial assistance or incentive, either direct or indirect, in the preparation of my brief. I may draw on secretarial assistance of the University of Michigan Law School and perhaps volunteer assistance from one or two of my graduate students.
Nature of the Interest the Applicant Has in This Appeal
I do not have any material or personal interest in the disposition of this appeal. My interest in filing the brief is that of a scholar preoccupied with the advancement of WTO jurisprudence in a manner that supports systemic legitimacy, contributes to the evolution of international law as a whole, and reflects an appropriate relationship between the institutional role of adjudicators and that of other relevant powers and authorities.
Specific Issues of Law and Legal Interpretations I Intend to Address in This Brief
Canada appeals against the ruling of the panel that the measures complained of by Canada fall outside the coverage of the Agreement on Technical Barriers to Trade (paras. 1 and 2 of the Notification of Appeal). In my brief I wish to discuss specific legal interpretations made by the panel that relate to this ruling. In responding to Canada’s concern that excluding this kind of measure from the coverage of TBT "might allow Members to circumvent the obligations imposed by the TBT Agreement", the panel made the legal interpretation that measures of this kind would be covered , inter alia, by Art. III of the GATT, and are of a kind that might violate this Article, such that "they may have to meet the criteria in Article XX in order to be justified under this Agreement". 1 The panel’s theory is that measures such as France’s may well be violations of Art. III, because a product banned for reasons of dangerousness to human life and health may well be "like" permitted substitute products not dangerous in this manner 2: thus, where it wishes to treat products differently on the basis of health and safety objectives, the regulating Member will normally have to mount a defence of its measures under Art. XX.
I shall argue that this is an erroneous legal interpretation. The concept of "likeness" in Art. III:4 of the GATT must be read in the context of that specific provision, namely the concern with domestic laws, regulations and requirements, most of which, in the modern regulatory state, draw distinctions between products, as well as processes, on the basis of non-economic or non-commercial objectives of various kinds such as the protection of health, the environment, and consumers. The concept of likeness must also be understood in light of the object and purpose of Art. III as a whole, which is "to avoid protectionism in the application of internal tax and regulatory measures". 3 The panel thus erred in law in para. 8.122 of its ruling when it held that the objective of Art. III concerned not the avoidance of protectionism but "market access" as such. The a priori exclusion of consideration of the "likeness" of products in relation to properties such as risk to human health related to non-protectionist regulatory purposes, would, in the context of Art. III:4, have the result that Members could be required to justify most of their origin-neutral regulations under Art. XX. In effect, instead of Art. XX being a defence once a violation of GATT has been identified, i.e. a set of limited and conditional exceptions, Arts. III and XX would be merged or fused into a general duty to justify neutral domestic regulations, whenever another Member asserts a legal interest in having a Member do so. Since the concept of legal interest is very broad in WTO law, and relatedly, there is a doctrine of presumption of nullification and impairment, the view expressed by the panel of Art. III would result in the dispute settlement organs playing the role of a global regulatory review agency, a role for which they lack resources and appropriate institutional characteristics.
The panel considered that "it is with a view to market access that" the analysis of the properties, nature and quality of imported and domestic products have to be evaluated.(para. 8.122). However, the text of Art. III balances concerns about avoiding protectionism with the need for leaving a wide scope to Members for regulation, as the Appellate Body emphasized in Japan-Alcohol, and the meaning of likeness must not be discerned "with a view to market access" as such but with a view to preserving the balance of objectives negotiated in the text of Art. III. 4 Hence, the concept of "likeness" in Art. III should be applied in such a manner as "not to condemn measures that its strict terms are not meant to condemn": this requires a consideration of the exact language of the provision of Art. III that is relevant to the dispute, and a different approach may be needed in the case of those provisions dealing with fiscal measures (Art. III:2, first and second measures) than the differently structured provisions dealing with law, regulations, and requirements (Art. III:4). There may be good reasons why legal tests and criteria developed to deal with fiscal measures may not be entirely fitting and appropriate for treaty provisions that deal with actions taken to protect human health, or at least why additional criteria may be of high relevance. 5 The panel’s view that considerations of effect on human health cannot be a basis for finding that products are "unlike" under Art. III is based inter alia on the notion that Art. XX (b) would be redundant if differential treatment of products were accepted under Art. III because of distinction drawn on health grounds. However, Art. XX largely exists because of certain very limited situations where a Member may need, for non-protectionist reasons, to discriminate against products on the basis of national origin, not on the basis of their intrinsic properties. Thus, in the US-Shrimp case the Appellate Body opined that, if the various exceptions in Art. XX were not to be, in principle, capable of being invoked where measures are conditioned on another country’s policies, much if not all of Art. XX would be inutile. 6 In the case of health, for example, if a regulatory scheme excluded products from certain countries which were thought to have inadequate protection against disease, such an explicit distinction based on country of origin would be inconsistent with the very idea of National Treatment, and then the Member would have to mount a defence under Art. XX(b).
Precisely because the concept of "likeness" in Art. III allows products to be treated as unlike on the basis of properties of those products that impact on non-protectionist objectives, another set of legal rules is needed to deal with situations where Members have concerns that such regulations, although neutral as to country of origin, have circumstances surrounding their development, adoption or application that suggest protective elements or purely gratuitous and superfluous trade-restricting features. This is precisely the role of the TBT Agreement. Because this Agreement applies even to regulations that treat products differently on the basis of non-protective, non-commercial objectives it strikes a unique and different balance than Art. III of the GATT, one which is particularly sensitive to the dangers of inordinate intrusion into Member’s legitimate regulatory choices when origin-neutral regulations are being examined. It is precisely this balance that is apposite to the scrutiny within the WTO institutional context of the kind of measures at issue in this matter.
I also intend to argue that this is an appropriate case for the Appellate Body to "complete the analysis" and apply the TBT Agreement to the existing factual record. While this record is very extensive and the time period in which the Appellate Body must dispose of this appeal is short, even if all the facts Canada asserts are assumed to be true there is no violation of any TBT provision cited by Canada in its Notification of Appeal. Thus, the Appellate Body can dispose of these claims of TBT violation without engaging in any kind of extensive analysis reworking of the factual record. I will address Canada’s claims, in its Notification of Appeal that the EC measures violate paragraphs 2 and 4 of Article 2 of the TBT Agreement. However, in order to conform with the requirement of the Special Procedure that only issues of law be addressed in amicus briefs, I will confine my discussion to certain erroneous legal interpretations in the panel proceedings Canada makes in advancing its claims concerning TBT violations. For purposes of providing greater specificity in this Application, one of the main erroneous legal interpretations is that of assuming that where similar language to that of Art. XX of the GATT appears in the TBT Agreement the same legal test and standard of review are appropriate as in the GATT. 7 The wording of the TBT Agreement must in the first instance be interpreted in light of the context, object and purpose of the TBT Agrement. It must be borne in mind that this Agreement subjects to disciplines aspects of the development, adoption, and application of measures that have not been found to be protective in any sense that would violate the 1994 GATT. In this respect, the legal test and standard of review appropriate to Art. 2.2 of TBT are to be understood in light of the preamble of the Agreement, in light of the burden of proof being on the complaining party to establish that the defending party’s measures are not more trade restrictive than necessary to fulfill its objective, and in light of the language "taking into account of the risks non-fulfillment would create", which does not appear anywhere in Art. XX of the GATT. Art. 2.2 of the TBT Agreement allows Members to assess risks on the basis of "available scientific and technical information". It does not require that Members undertake a de novo investigation of risk, including the risk that would arise from all hypothetically available alternative measures.
Why It is Desirable for the Appellate Body to Grant the Applicant Leave
In important respects these are issues of first impression for the Appellate Body, and relate to important systemic issues for WTO jurisprudence. The treatment of domestic health regulations under WTO law is a matter of intense concern to citizens and governments. The issues raised by Canada in this appeal go to the fundamental nature of the structure of WTO law as it interacts with the regulatory state and indeed with the role of international organizations as well in setting standards for regulation, whether the World Health Organization and the International Labour Organization. Where such systemic and structural implications exist in the issues of law on appeal, independent learned opinion may add a perspective that cannot easily be captured by the interventions of Parties and even Third Parties. The nature of the litigation process is such that Parties and Third Parties craft their arguments for a variety of strategic, diplomatic and political reasons, that may well lead to an understandable reluctance to delve too deeply into the structural and systemic implications of certain issues or claims. Article 3:1 of the Dispute Settlement Understanding states that the dispute settlement system of the WTO "serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law." (emphasis added). In general, the role of opinio juris, particularly in assisting an international tribunal in its role of clarifying the law, is well established in international law and is in fact recognized in the recitation of the sources of law in the Statute of the International Court of Justice. 8
More precisely the legal interpretation that I shall advance in my brief is one that does not fit with the structure of either Party’s legal argument, as apparent from Canada’s notice of appeal, as well as from the summary of Parties’ arguments contained in the Panel Report. While the European Communities takes a view of Article III of the GATT that is closer to what I understand to be the correct one than the view the panel adopted, at the same time the European Communities has argued that the TBT Agreement does not cover these measures. But, in part precisely because this is the kind of measure that is not prohibited by Art. III thereby not requiring an Art. XX defence, in my submission, the disciplines of TBT are entirely apposite, with their different balance between security of trading rights and respect of domestic regulatory autonomy.
Moreover, the view that the European Communities has taken with respect to Art. III:4 at least at the panel level in this matter, and indeed in certain other cases, while nearer in spirit to an appropriate understanding of the balance of rights and obligations in that provision, comes close to an attempt to revive the "aims and effects" view of Art. III. This view, particularly as it was expressed in the Bananas case, risks collapsing the entire content of Art. III into a general, and largely textually unbounded, test for whether there is protectionist intent, thus making the actual intricate language of the various paragraphs of that Article superfluous or inutile. Thus, the Appellate Body has appropriately rejected the "aims and effects" approach, as that approach would be contrary to the duty of a treaty interpreter not to simply disregard or render of no effect entire portions of a binding treaty text. It is of course true that, on my own argument, in properly applying the treaty language "like products" in Art. III:4 in a case such as this, it is appropriate to take into account distinctions between products based upon the regulatory purposes of the scheme, in this case protection of human life and health. But to do this is something entirely different from reverting to "aims and effects"—it is to apply the exact words of Art. III:4 in light of the fundamental purpose of Art. III. As is affirmed by the Appellate Body in Chile-Alcohol Taxes, in the application of specific treaty language within Art. III, it may be appropriate to examine the rational relationship between a distinction between products and legitimate regulatory purpose, as discerned, not indeed from intuitions or inquiries into protective motivation, but rather from the evident design, architecture and structure of the regulatory scheme. Finally, with respect to legal interpretations of the TBT Agreement advanced by Canada in the panel proceedings, which relate to its request that the Appellate Body complete the analysis and find violations of the TBT Agreement, I would note that both Parties in their panel submissions, relied heavily on analogies between the language of the TBT Agreement and similar language in provisions of GATT. Thus, my own approach—which is to follow the interpretive rules of Vienna Convention Art. 31 on the basis that the TBT Agreement is itself a discrete treaty or set of treaty obligations—differs from that of both Parties.
Respectfully submitted to the Members of the Appellate Body,
Professor Robert Lloyd Howse,
The City of Ann Arbor Michigan, USA, November 10, 2000
1 Report of the panel, paragraph 8.56.
2 Report of the panel, paragraphs 8.128-8.130.
3 Japan-Alcohol, Report of the Appellate Body, page 16.
4 Ibid. pp. 16-16.
5 EC Hormones, Report of the Appellate Body, paragraph 239.
6 Paragraph 121.
8 Art. 38:1(d).