311 Rosa M. Fernández Egea Climate change and the sustainability... legitimate objectives that are envisaged in the Trade Agreement, such as the protection of the environment.19 In this case, two provisions could have been invoked: measures that are necessary to protect human, animal or plant life or health (paragraph b), or measures relating to the conservation of exhaustible natural resources (paragraph g). Indeed, this is the provision that has been invoked in most trade disputes that have implications for the environment.20 Some of these even involved trade in certain fish stocks, such as the tuna and shrimp cases.21 Trade measures have to pass a double test: firstly, it is assessed whether they comply with the requirements laid down in the various paragraphs and, secondly, with the common requirements on the adoption of the measure, which are set out in the preamble or chapeau to Article XX of the GATT. 19 While in the past it was very difficult to use environmental grounds to justify trade barriers, recent interpretations of the aforementioned exception requirements by WTO dispute settlement bodies demonstrate greater sensitivity to environmental problems, and recognise the right of GATT contracting parties to choose their own health and environmental policies, even though these may constitute a trade restriction. 20 During the period that the GATT 1947 was in force, a number of disputes involving the environment were resolved by invoking paragraphs (b) and/or (g) of Article XX; noteworthy cases include that of the United States-Prohibition of Imports of Tuna and Tuna Products from Canada in 1982 (29S/97); Thailand—Restrictions on the Importation of and Internal Taxes on Cigarettes in 1990 (IBDD 37S/222) – case Thailand-Cigarettes; and the well known Tuna cases United States-Restrictions on Imports of Tuna in 1991 (IBDD 39S/183) - case USA-Tuna I; and United States-Restrictions on Imports of Tuna in 1994 (WT/DS29/R) – case USA-Tuna II. After the creation of the WTO, new disputes of an environmental nature arose; of particular note are the cases of the United States-Standards for Reformulated and Conventional Gasoline in 1996. (WT/DS2) – case USA-Gasoline; United States– Prohibition of Imports of Certain Shrimp and Shrimp Products in 1998 (WT/DS58) – case USA-Shrimp; European Communities-Measures Affecting Asbestos and Asbestos-Containing Products in 2001 (WT/ DS135) – case EC-Asbestos; European Communities-Measures Affecting the Approval and Marketing of Biotech Products in 2006 (WT/DS291, DS292 and DS293) – case EC-Biotech Products; and Brazil- Measures Affecting Imports of Retreaded Tyres in 2007 (WT/DS332) –case Brazil-Retreaded Tyres. Special mention must be given to the case of the European Communities—Measures Prohibiting the Import and Placement on the Market of Seal Products in 2014 (WT/DS400 and 401) – case EC-Seal Products, given that this was the first time paragraph a) of Article XX of the GATT – measures “necessary to protect public morals” was invoked in a matter that had environmental implications. For more information on this case, vide MARTÍNEZ PÉREZ, E. J, Restricciones comerciales por razones éticas: la prohibición de la unión europea a la importación de productos derivados de las focas, Revista Española de Derecho Europeo, n. 42, 2012, pp. 25-48 and RIERA DÍAZ, S., Medio ambiente y comercio internacional: el caso de los productos derivados de las focas”, Revista Jurídica de la UAM, nº. 29, 2014, in the press. The reports of the Panels and the Appellate Body are available on the WTO website (http://www.wto.org). 21 Namely, the USA-Tuna I and II and USA-Shrimp cases.
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