This article will question the legality of measures of environmental ‘conditionality’ in the Generalized System of Preferences [GSP] of the European Community [EC].1 The GSP is a GATT/WTO2 authorized scheme which permits developed nations to grant non-reciprocal tariff preferences in favour of developing countries.3 The objectives of the GSP are primarily development-oriented in that it aims to increase the export earnings of developing countries, promote their industrialization and accelerate rates of economic growth.4 A recent case taken in the WTO examined the legal contours of the grant of tariff preferences and it is in the light of this that this article will examine the so-called ‘special incentive arrangements’ of the reformed EC GSP which offers additional tariff preferences to developing countries on the ‘condition’ that they adhere to specified standards of environmental protection.
1 The legal base for the GSP is Art 133 EC. Since action is taken under the EC pillar, the term European Community/Communities shall be used. In addition, Art XI of the WTO Agreement (n6) on ‘original membership’ refers specifically to the ‘European Communities’ and not the European Union. The terms European Community and European Communities shall thus be used interchangeably throughout the body of this article.
2 The conceptual underpinnings of the GSP, however, can be traced to the United Nations Conference on Trade and Development (UNCTAD) and more particularly, its first Secretary General, Dr Raul Prebisch. See R Prebisch, ‘Towards a New Trade Policy for Development: Report by the Secretary-General of the United Nations Conference on Trade and Development’ (United Nations, New York, 1964). Dr Prebisch argued that it was essential for developing countries to diversify their economic base and emphasized the importance of export oriented growth through industrialization. In relation, Prebisch contended that preferential treatment for the industrial exports of developing countries could assist their domestic industries to overcome initial problems such as high start up costs. Preferences would guarantee a wider product market for the goods of developing countries and economies of scale would be realized which would in turn enable the lowering of costs.
3 For a relatively up-to-date overview of the GSP system please see Santos et al, ‘Generalized System of Preferences in General Agreement on Tariffs and Trade/World Trade Organisation: History and Current Issues’ (2005) 39 Journal of World Trade 637.
4 Resolution 21 (II), in, Final Act and Report of UNCTAD II, Annex 1 (United Nations, New York, 1968).
5 Council Regulation 980/2005/EC Applying a Scheme of Generalized Tariff Preferences  OJ L 169/1.
6 General Agreement on Tariffs and Trade 1994, 15 Apr 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, the legal texts: the results of the uruguay round of multilateral trade negotiations 17 (1999), 1867 UNTS 187, 33 ILM 1153 (1994) [hereinafter GATT 1994]. The WTO was created as a result of Uruguay Round of multilateral trade negotiations. These negotiations were structured around the GATT 1947, a provisional trade ‘agreement’ or protocol drafted to ensure the reduction of tariff barriers between parties. GATT 1947 remained essentially unchanged from the date of its signing. The GATT 1947 was updated during the Uruguay Round and became GATT 1994 which is itself one of the core or ‘covered agreements’ of the WTO.
7 Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries (28 Nov 1979) BISD 26S/203, GATT Doc L/4903 (1979).
8 Generalized System of Preferences Waiver Decision (25 June 1971) BISD 18S/24, GATT Doc L/3545 (1971).
9 L Bartels, ‘The WTO Enabling Clause and Positive Conditionality in the European Community's GSP Program’ (2003) 6 Journal of International Economic Law 507, 508.
10 For an overview of the current US regime instituting the GSP please see, US Generalized System of Preferences Guidebook (2006) available at <http://www.ustr.gov> (last accessed 30 Sept 2006) and, for example, 19 USC § 2462(b)(2) listing mandatory criteria which each country must fulfil before being designated a GSP beneficiary. Countries must not be ‘dominated by international communism’, must not harbour or offer sanctuary to ‘any individual who has committed an act of international terrorism’ and must have taken steps or be taking steps towards implementing internationally recognized labour standards. 19 USC § 2462 (c) lists ‘discretionary’ criteria applicable to beneficiaries of the US GSP.
11 See generally R Bhala, ‘The Limits of American Generosity’ (2003) 29 Fordham Journal of International Law 299. See also Jones, ‘Generalized System of Preferences: Background and Renewal Debate’ (update 24 Jan 2007), Congressional Research Service, Library of Congress, Order Code RL33663 which notes that some US supporters of the GSP take the view that conditionality ‘provide[s] the United States with international political leverage that can be used to preserve US foreign and commercial interests’ at CRS-24.
12 Unilateral enforcement measures have previously been authorized under s 301 of the Trade Act of 1974 which accords the United States Trade Representative the authority to ‘withdraw, limit, or suspend [duty free treatment]’ in a ‘case in which the act, policy, or practice also fails to meet eligibility criteria for receiving duty free treatment’ applicable to the grant of GSP concessions, 19 USC § 2411 (c)(1)(C).
13 P Drahos and M Braithwaite, ‘Hegemony Based on Knowledge: The Role of Intellectual Property’ in J Chen and G Walker (eds) Balancing Act: Law, Policy and Politics in Globalisation and Global Trade (The Federation Press, Leichhardt, 2004) 213.
14 Council Regulation (EC) 980/2005 Applying a Scheme of Generalized Tariff Preferences  OJ L 169/1 Art 16 authorizes temporary withdrawal in the event of; (a) serious and systematic violations of human and labour rights as defined in Part A of Annex III to the Regulation, (b) export of goods made by prison labour, (c) failure to control export of illegal drugs and/or failure to comply with international conventions on money laundering, (d) unfair trading practices affecting the EC, (e) infringement of agreements pertaining to sustainable management of fishery stocks.
15 Negative conditionality was formally introduced by way of Council Regulation (EC) 3281/94 Applying a four-year Scheme of Generalized Tariff Preferences (1995–8) in Respect of Certain Industrial Products Originating in Developing Countries  OJ L 348/1 Art 12 and Council Regulation [EC] 1256/96 Applying Multiannual Schemes of Generalized Tariff Preferences from 1 July 1996 to 30 June 1999 in Respect of Certain Agricultural Products Originating in Developing Countries  OJ L 166/1 Art 12.
16 Council Regulation (EC) 552/97 Temporarily withdrawing Access to Generalized Tariff Preferences from the Union of Myanmar  OJ L 85/8.
17 Council Regulation (EC) 1933/2006 Temporarily withdrawing Access to the Generalized Tariff preferences from the Republic of Belarus  OJ L 405/35.
18 S Arnau, The Generalized System of Preferences and the World Trade Organization (Cameron May, London, 2002) 270.
19 Products covered by the now defunct European Coal and Steel Community [ECSC] were covered by two separate regulations promulgated by the Council of the European Communities, see Yusuf, Legal Aspects of Trade Preferences for Developing States (Kluwer, The Hague, 1982) 120.
20 Council Regulations (EEC)  OJ L142/1 et seq. See also the original communication of the Commission detailing the original ‘offers’ of the GSP scheme of the EEC, Commission des Communautés Européennes, La mise en application de l'offre de la communauté en matière de préférences généralisées a octroyer en faveur des exportations d'articles manufactures et des produits semi-finis des pays en voie de développement SEC (71) 1000 (15 Mar 1971).
21 The 1971 temporary GATT waiver which provided for the original imposition of the GSP was limited in time to ten years from 1971 to 1981, see BISD (n 8). The 10-year time limit of the original EEC GSP was thus merely a reflection of the temporary GATT waiver.
22 Commission Communication on The Future Development of the European Community's Generalized Tariff Preferences COM(75)17 final (3 Feb 1975).
23 Commission Background Note on the Community's Generalized System of Preferences (GSP) MEMO/94/35 (2 June 1994).
24 Regulation (EEC) 3831/90  OJ L 370/1; Regulation [EEC] 3832/90, OJ  L 370/39; Regulation (EEC) 3833/90  OJ L 370/86; Regulation (EEC) 3834/90  OJ L 370/121; Regulation (EEC) 3835/90  OJ L 370/126; and Regulation (EEC) 3900/91  OJ L 368/11.
25 Council Regulation (EC) 3281/94 Applying a Four-year Scheme of Generalized Tariff Preferences (1995 to 1998) in Respect of Certain Industrial Products Originating in Developing Countries  OJ L 348/1.
26 European Commission Director General for Trade, ‘User's Guide to the European Union's Scheme of Generalized Tariff Preferences’ (Feb 2003), available at <http://ec.europa.eu/trade/issues/global/gsp/gspguide.htm> (last accessed 28 Jan 2007), note that this Guide has not been updated and does not deal with the operation of the current GSP scheme. The definition of sensitivity is, however, unaffected.
27 Council Regulation (EC) 3281/94 Art 2; Council Regulation (EC) 2820/98 Applying a Multiannual Scheme of Generalized Tariff Preferences for the Period 1 July 1999 to 31 December 2001  OJ L 357/1 Art 2.
28 Commission Communication from the Commission to the Council and the European Parliament, Integration of the Developing Countries into the International Trading System: Role of the GSP COM(94)212 final (1 June 1994).
29 ibid 3.
30 ibid 11.
31 United Nations Conference on the Human Environment, ‘Report of the United Conference on Human Environment’ (June 1972) A/Conf 48/14 and Corr 1, Chap II sect. B; see also United Nations Conference on Environment and Development, ‘Rio Declaration on Environment and Development’ (June 1992), A/CONF.151/26 (Vol I).
32 Published as Brundtland Commission, Our Common Future (OUP, Oxford, 1987).
33 S Gaines, ‘International Trade, Environmental Protection and Development as a Sustainable Development Triangle’ (2002) 11 Review of European Community and International Environmental Law 259, 261.
34 K Abbot, ‘ “Economic” Issues and Political Participation: The Evolving Boundaries of International Federalism’ (1996–7) 18 Cardozo Law Review 971, 979.
35 Resolution of the Council and the Representatives of the Governments of the Member States, meeting within the Council of 1 February 1993 on a Community programme of policy and action in relation to the environment and sustainable development—a European Community programme of policy and action in relation to the environment and sustainable development  OJ C138/1, as noted in M O'Neill, ‘Agriculture, the EC and the WTO: A Legal Critical Analysis of the Concepts of Sustainability and Multifuctionality’ (2002) 4(3) Environmental Law Review 144, n 26.
36 Title XX [ex XVII] EC, see E Fierro, The EU's Approach to Human Rights Conditionality in Practice (Martinus Nijhoff, The Hague, 2003) 28.
37 EC Commission Background Note on the European Union's New Generalized System of Preferences (GSP) Scheme MEMO/95/1 (19 Jan 1995), referring to Art 177 (1) and (2) EC [ex Art 130u].
38 Common Commercial Policy is found in Title IX [ex VII] EC Treaty. The legal basis for the promulgation of the GSP was the subject of a legal challenge in 1987. The European Court of Justice [ECJ] in Case 45/86 Commission v Council  ECR 1493 upheld Art 133 [ex Art 113] EC as the correct legal basis, despite the development objectives of the grant of preferences.
39 UNCTAD, ‘Proceedings of the United Nations Conference on Trade and Development, 8th Session at Cartagena de Indias Colombia’ (1993) UN Doc TD/364/Rev.I para 38.
40 ibid para 63.
41 The establishment of these special incentive arrangements was provided for in Arts 7 and 8 of Council Regulations (EC) 3281/94 and (EC) No 1256/96; however, the introduction of these arrangements was delayed by the need for a report into the ‘intensity and modalities’ of the planned scheme which was tasked to be completed by the Commission and presented to the Council by 1997. The report was completed in June 1997; see Commission Report to the Council pursuant to Art 7 (2) of Council Regulations 3281/91 and 1256/96 on the scheme of generalized preferences: Summary of the work conducted within the ILO, OECD and the WTO on the link between international trade and social standards, COM(97)260 final (2 June 1997). Subsequently, the Commission issued a proposal to activate the special incentive arrangements; see Commission Proposal for a Council Regulation (EC) applying the special incentive arrangements concerning labour rights and environmental protection provided for in Arts 7 and 8 of Council Regulation (EC) 3281/94 and 1256/96 applying the scheme of generalized tariff preferences in respect of certain industrial and agricultural products originating in developing countries COM(97)534/4 (29 Oct 1997). The special incentive arrangements were finally introduced by way of Council Regulation (EC) No 1154/98 applying the special incentive arrangements concerning labour rights and environmental protection provided for in Arts 7 and 8 of Regulations (EC) No 3281/94 and (EC) 1256/96 Applying Multiannual Schemes of Generalized Tariff Preferences in Respect of Certain Industrial and Agricultural Products Originating in Developing Countries  OJ L 160/1. This Regulation was set to expire on the date of expiry of Regulations (EC) 3281/94 and (EC) 1256/96. Regulation (EC) 3281/94 was set to expire on 31 December 1998 but was extended until 30 June 1999 by Council Regulation EC 2820/98. Applying a Multiannual Scheme of Generalized Tariff Preferences from 1 July 1999 to 31 December 2001  OJ L 357/1.
42 Council Regulation (EC) 1154/98 Arts 8–21.
43 E Morgera and G Duran, ‘Enlargement and EU Development Policy: An Environmental Perspective’ (2004) 13 Review of European Community and International Environmental Law 152, 154.
44 EC Regulation 2493/2000 of 7 November 2000 on measures to promote the full integration of the environmental dimension in the development process of developing countries  OJ L288/1.
45 EC Regulation 2494/2000 of 7 November 2000 on measures to promote the conservation and sustainable management of tropical forests and other forests in developing countries  OJ L288/6.
46 Council Regulation (EC) 2820/98 Arts 8–21.
47 The agricultural and industrial schemes were merged for reasons of simplicity and to make the GSP easier to use, see Commission Proposal for a Council (EC) Regulation applying a scheme of generalized tariff preferences for the period of 1 January 1999 to 31 December 2001 COM(98)521 (16 Sept 1999) 2.
48 Council Regulation (EC) 2501/2001 Applying a Scheme of Generalized Tariff Preferences for the period from 1 January 2002 to 31 December 2004  OJ L 346/1.
49 Council Regulation (EC) 2501/2001.
50 Panel Report, European Communities: Conditions for the Granting of Tariff Preferences to Developing Countries, WT/DS246/R, adopted 202004 para 1.4 (hereinafter, EC–Tariff Preferences Panel).
51 With the exception of products listed in CN codes 0306 13, 1704 10 91 and 1704 10 99.
52 EC–Tariff Preferences Panel paras 2.7–2.8.
53 ibid para 3.1.
54 Use of the GSP as a response to terrorism is not unprecedented; for example, the United States GSP contains a clause to the effect that eligibility would be denied to any country that purported to ‘aid or abet, by granting sanctuary from prosecution, any individual or group that has committed an act of international terrorism’, 19 USC 2462(b)(2).
55 EU Response to 11 September: European commission action, MEMO 02/122 (3 June 2002) <http://europa.eu.int/rapid/pressReleasesAction.do?reference=MEMO/02/122&format=HTML&aged=0&language=EN&guiLanguage=en> (last accessed 25 Feb 2006), see also Commission of the European Communities, Amended Proposal for a Council Regulation applying a scheme of generalized tariff preferences for the period 1 January 2002 to 31 December 2004 COM(2001)688 final (14 Nov 2001).
56 BRIDGES/ICTSD, ‘WTO Appellate Body: Differentiation Possible Under Preference Schemes’ (22 Apr 2004) <http://www.ictsd.org/weekly/04-04-22/story4.htm> (last accessed 25 Feb 2007).
57 Cooperation Agreement between the European Economic Community, of the one part, and the countries parties to the General Treaty on Central American Economic Integration (Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua) and Panama, of the other part—Declarations by the Community—Exchange of Letters  OJ L 172/2.
58 Commission Proposal to the Council for a Regulation extending to Bolivia, Colombia and Peru the generalized tariff preferences applied to certain products originating in the least-developed countries and amending Regulations (EEC) Nos 3896/89, 3897/89 and 3898/89 COM(90)254 final (18 Dec 1989).
59 European Parliament Session Documents, Report of the Committee on Development and Cooperation on the Commission Proposal to the Council for a Regulation extending to Bolivia, Colombia and Peru the generalized tariff preferences applied to certain products originating in the least-developed countries and amending Regulations (EEC) Nos 3896/89, 3897/89, and 3898/89 of 18 December 1989 COM(90)254, A3-0225/90 (24 Sept 1990).
60 Council Regulation (EEC) 3835/90 Amending Regulations (EEC) 3831/90, (EEC) 3832/90 and (EEC) 3833/90 In Respect of the System of Generalized Tariff Preferences Applied to Certain Products originating in Bolivia, Colombia, Ecuador and Peru  OJ L 370/126.
61 European Commission, Proposal for a Council Regulation (EEC) amending Council Regulation 3833/90 in respect of the system of generalized tariff preferences applied to certain products originating in Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama, SEC (91) 1109 (9 July 1991).
62 Council Regulation (EEC) 3900/91 Suspending Common Customs Tariff duties for products covered by Regulation (EEC) No 3833/90 and originating in Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama  OJ L 368/11 Art 1.
63 ibid 12.
64 ibid 13.
65 Request for a WTO Waiver—New EC Special Tariff Arrangements to Combat Drug Production and Trafficking, 24 Oct 2001 (G/C/W/328) as cited in Panel Report, European Communities–Conditions for the Granting of Tariff Preferences to Developing Countries, WT/DS246/R, adopted 202004, modified by Appellate Body Report, WT/DS/246/AB/R, 9.
66 ibid para 4.30.
67 ibid para 4.35.
69 ibid para 4.33.
70 ibid para 4.22.
71 ibid para 4.42.
73 ibid para 4.44.
74 ibid para 4.44(i).
75 ibid para 4.47.
76 ibid para 4.65.
78 ibid para 4.70.
79 ibid para 4.75.
80 ibid para 4.66.
81 ibid paras 8.1–8.4.
82 Appellate Body Report European Communities–Conditions for the Granting of Tariff Preferences to Developing Countries, WT/DS/246/AB/R adopted 20 April 2004 para 36 (hereinafter EC–Tariff Preferences Appellate).
83 ibid para 173.
85 ibid para 187.
86 ibid para 179.
87 ibid para 188.
88 ibid para 185.
89 ibid para 188.
90 ibid paras 187–8.
91 Council Regulation (EC) 980/2005 Applying a Scheme of Generalized Tariff Preferences  OJ L 169/1.
92 EC–Tariff Preferences Appellate para 173.
93 ibid para 155.
94 ibid para 157.
95 ibid para 158.
96 ibid para.
97 ibid para 164.
98 ibid para 163.
99 ibid para 160.
100 Resolution 21 (II), in, Final Act and Report of UNCTAD II, Annex 1 (United Nations New York 1968).
101 EC–Tariff Preferences Appellate para 160.
102 ibid para 163.
103 ibid para 164.
105 ibid para 183.
107 ibid para 167.
108 Commission Proposal for Council Regulation Applying a Scheme of Generalized Tariff Preferences COM(2004)699 (20 Oct 2004).
109 Council Regulation (EC) 980/2005 Applying a Scheme of Generalized Tariff Preferences  OJ L 169/1.
110 ibid Art 7.
111 ibid Art 9.
112 ibid Arts 9–11.
113 EC–Tariff Preferences Appellate para 153.
114 M Trebilcock and R Howse, The Regulation of International Trade (Routledge, London and New York, 2005) 72.
115 International Convention on the Suppression and Punishment of the Crime of Apartheid ratified 21 March 2005, see <http://www.unhchr.ch/html/menu3/b/treaty8_asp.htm> (last accessed 25 Feb 2007).
116 ibid ratified 15 June 2005.
117 ibid ratified 28 October 2005.
118 Convention concerning Minimum Age for Admission to Employment (No 138), Convention concerning the Abolition of Forced Labour (No 105) and Convention concerning Forced or Compulsory Labour (No 29) ratified 15 March 2005, see <http://www.ilo.org/ilolex/english/newratframeE.htm> (last accessed 25 Feb 2007).
119 Convention concerning Freedom of Association and Protection of the Right to Organize (No 87) and Convention concerning the Application of the Principles of the Right to Organize and to Bargain Collectively (No 98) ratified 6 September 2006, see <http://www.ilo.org/ilolex/english/newratframeE.htm> (last accessed 25 Feb 2007).
120 EC–Tariff Preferences Appellate para 167.
121 See Ehring, ‘De Facto Discrimination in World Trade Law’ (2002) 36 (5) Journal of World Trade 921 which argues that differential treatment between imports may be suitable grounds.
122 Appellate Body Report, European Communities–Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/AB/R, adopted 251997, para 233.
123 n 93.
124 Council Regulation (EC) 980/2005 Art 9(c).
125 Özden and Reinhardt, The Perversity of Preferences: The Generalized System of Preferences and Developing Country Trade Policies, 1976–2000 (World Bank Policy Research Working Paper 2955, 2003).
126 Appellate Body Report, United States–Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, adopted 61998, n 107.
127 ibid para 129.
128 EC–Tariff Preferences Appellate para 94.
129 See discussion, n 99 et seq.
130 See, eg, the Rio Declaration on Environment and Development, UN Doc A/CONF.151/26 (vol I); 31 ILM 874 (1992) Art 4.
131 Hobbs, Hobbs, and Kerr, ‘The Biosafety Protocol: Multilateral Agreement on Protecting the Environment or Protectionist Club?’ (2005) 39(2) Journal of World Trade 281.
132 Cartagena Protocol on Biosafety, 39 ILM 1, 27 (2000).
133 Council Regulation (EC) 980/2005 Annex III.
134 Panel Reports, European Communities–Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/292/293, adopted 21 Nov 2006 (hereinafter EC–Biotech Panels).
135 Request for the Establishment of a Panel by the United States European Communities–Measures Affecting the Approval and Marketing of Biotech Products, WT/DS/291/23 (8 Aug 2003).
136 Request for the Establishment of a Panel by Canada, European Communities–Measures Affecting the Approval and Marketing of Biotech Products, WT/DS/292/17 (8 Aug 2003).
137 Request for the Establishment of a Panel by Argentina, European Communities–Measures Affecting the Approval and Marketing of Biotech Products, WT/DS/293/17 (8 Aug 2003).
138 The DSB established a single panel to hear the complaints of all three parties at its meeting on 29 August 2003. The Panel was composed on 4 March 2004, see URL <http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds293_e.htm> (last accessed 1 Sept 2006).
139 EC–Biotech Panels paras 4.300 et seq.
140 See US Oral Statement at the First Meeting of the Panel (2 June 2004) <http://www.ustr.gov/assets/Trade_Agreements/Monitoring_Enforcement/Dispute_Settlement/WTO/Dispute_Settlement_Listings/asset_upload_file395_5542.pdf> (last accessed 25 Feb 2007).
141 There are numerous understandings accorded to the precautionary principle, however, Art 1 to the CBD explicitly references Principle 15 of the Rio Declaration which states that ‘in order to protect the environment, the precautionary approach shall be widely applied by States according to their capability. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation’, UN Doc A/CONF.151/26 (vol I); 31 ILM 874 (1992).
142 Cartagena Protocol Art 11.8.
143 Report of the Appellate Body European Communities–Measures concerning Meat and Meat Products, WT/DS26/AB/R and WT/DS48/AB/R, adopted 16 Jan 1998, 17.
144 EC–Biotech Panels, 303–7.
145 MC Cordonier, ‘The WTO, RTAs and Sustainable Development’ in L Bartels and F Ortino (eds), Regional Trade Agreements and the WTO Legal System (OUP, Oxford, 2006) 330.
146 Pascal Lamy, ‘The Emergence of collective preferences in international trade: implications for regulating globalisation’, speech made at conference on ‘Collective preferences and global governance: what future for the multilateral trading system’ (15 Sept 2005) <http://ec.europa.eu/archives/commission_1999_2004/lamy/speeches_articles/spla242_en.htm> (last accessed 31 Aug 2006).
150 For a southern critique of the idea of collective preferences, see ‘Full Interview with Varanda Shiva’ Euractiv (8 Mar 2004) <http://www.euractiv.com/en/trade/full-interview-vandana-shiva-ills-world-trading-system/article-117411> (last accessed 1 Sept 2006); see also S Charnovitz, ‘An Analysis of Pascal Lamy's Proposal on Collective Preferences’ (2005) 8 Journal of International Economic Law 449.
151 BRIDGES/ITCSD ‘US Steps Up Pressure Over Biotech Rules’ (20 Sept 2001) <http://www.ictsd.org/biores/01-12-20/story2.htm> (last accessed 23 Feb 2007).
152 Thailand threatened with s 301 action for its labelling regime in regard to GMOs.
153 Cited in BRIDGES/ICTSD ‘US Pressures WTO Members on GMOs’ (24 Jan 2002) <http://www.ictsd.org/biores/02-01-24/story1.htm> (last accessed 23 Feb 2007).
154 E Meijer and R Stewart, ‘The GM Cold War: How Developing Countries Can Go from Being Dominos to Being Players’ (2004) 13(3) Review of European Community and International Environmental Law 247, 253.
155 ibid 252.
156 ibid 261.
157 EC–Tariff Preferences Appellate (n) para 163.
158 Shaffer and Apea, ‘Institutional Choice in the General System of Preferences Case: Who Decides the Conditions for Trade Preferences? The Law and Politics of Rights’ (2005) 39 Journal of World Trade 977, 996.
160 Panel Report, Brazil–Export Financing Programme for Aircraft, WT/DS46/R, adopted 20 Aug 1999 (hereinafter Brazil–Aircraft).
161 For a discussion on this point, see Footer, ‘Developing Country Practice and WTO Dispute Settlement’ (2001) 35 Journal of World Trade 55, 87.
162 Brazil–Aircraft, para 7.89.
163 Commission White Paper on Opening the Door to Development: Developing Country Access to EU Markets 1999–2003 (23 May 2005) <http://trade.ec.europa.eu/doclib/docs/2005/august/tradoc_123305.pdf> (last accessed 25 Feb 2007).
164 Speech to the European Parliament on ‘The Community 2002–2004 GSP: An Instrument of Sustainable Development’ Strasbourg (12 June 2001) <http://trade.ec.europa.eu/doclib/docs/2004/october/tradoc_119427.pdf> (last accessed 25 Feb 2007).
165 Shaffer and Apea (n 158).
167 See WTO Doha Ministerial Declaration para 31 (i) calling for negotiations to explore ‘the relationship between existing WTO rules and specific trade obligations set out in multilateral environmental agreements (MEAs’ WTO Doc WT/MIN(01)/DEC/1.
168 S Shaw and R Schwartz, ‘Trade and the Environment in the WTO: State of Play’ (2002) 36 Journal of World Trade 129, 130.
169 D Brack and K Gray, Multilateral Environmental Agreements and the WTO, paper presented to the IISD/RIIA Workshop on Trade and Sustainable Development Priorities Post Doha, London, 7–8 Apr 2003, 28.
170 D Brack and T Branczik, Trade and Environment in the WTO: After Cancun (Royal Institute of International Affairs, London 2004).
171 As cited in S Charnovitz, ‘Triangulating the World Trade Organisation’, (2002) 96 American Journal of International Law 28, 29.
172 Appellate Body report of United States–Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, adopted 61998.
173 See WTO Ministerial Declaration (n 167) para 6 which notes that Members ‘strongly reaffirm our commitment to the objective of sustainable development, as stated in the Preamble to the Marrakesh Agreement’.
174 Speech by Pascal Lamy, ‘Lamy Urges Support for environmental chapter in the WTO’ (5 Feb 2007) <http://www.wto.org/english/news_e/sppl_e/sppl54_e.htm> (last accessed 28 Feb 2007).
175 See discussion (n 129) et seq.
176 Bennhold, ‘France Tells US to Sign Climate Pact or Face Tax’ New York Times, New York, 1 Feb 2007.
177 McCarthy et al, ‘Russia Finally Backs Kyoto: Does it Matter?’ The Independent, London, 1 Oct 2004.
178 Communication from the European Commission on Impact Assessment, COM(2002)276 final (not published in the Official Journal).
* The author would like to thank Joe McMahon for useful feedback he provided on an original draft of this article. Any errors are the author's own.
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