International Trade Law in WTO Member Countries

Ewastea’s Government measures are inconsistent with the laws outlined in the General Agreement on Tariffs and Trade (GATT). GATT is the primary legal reference used by the World Trade Organization (WTO), and as such the Government of Recyclea can and should seek the intervention of the WTO in the matter. Recyclea Government representatives should call for a consultative meeting with representatives of the Government of Ewastea, and if these consultations were to fail, they have sufficient grounds to bring the matter before a Dispute Settlement body.[1]The legal basis for the opinion is as follows. The Responsible Electronics Recycling Act (2013) instituted by the Ewastean’s Government goes against Article XI subsection 1, Article XIII subsection 1 and Article I paragraph 1 of GATT. The inconsistencies outlined below and were the reason for the conclusion that, should consultations fail, Recyclea should seek the intervention of a WTO Dispute Settlement Body.

GATT Article XI subsection 1 provides that no member country should institute prohibitive restrictions other than duties or taxes.[2] This Article bars the institution and placement of quantitative restrictions, which limit the amount of product that may be imported from or exported to, any WTO Member’s territory.  The Article may allow some restrictions, albeit temporarily if the said restrictions are meant to relieve critical shortages. In this regard, the Act, since it explicitly bans any exports of Electronic waste to Recyclea, is in contravention to Article XI. Electronic waste cannot be subject to any exclusion that this law provides and as such should not be regarded as one.

Article XIII subsection 1 of GATT provides that WTO Members may not apply quantitative import prohibitions or restrictions unless the importation of like products of all third countries is similarly prohibited or restricted.[3]The Article provides for non-discriminatory administration of quantitative restrictions and is meant to govern the imposition of quantitative restrictions between members. Chief among these considerations is that a member country should administer only those quantitative restrictions that are allowed by GATT, specifically those excluded from Article XI subsection 1 by their inclusion in Article XX. The Act is also contrary to GATT Article III, National Treatment, on the basis that it encourages the domestic industry but restricts that of  WTO member countries. In total disregard of Article III, the Act imposes a ban on export of e-waste to Recyclea while encouraging the domestic recycling industry. As seen in the precedent set in the US-Gasoline case, this is in contravention to the GATT.[4]

The Ewastean measures are also inconsistent with Article I subsection 1 of GATT. The Most Favored Nation provision, as this Article is at times referred to, ensures that any trade concessions granted to one member country are extended immediately and without conditions to all other members.[5]^{, [6]} The Act is meant to ensure that all members of the WTO are accorded the same treatment with regards to trade restrictions, and no country is offered preferential treatment. Since the Act encourages a Free Trade Agreement with Tabletea and Cellularia and permits the exportation of limited quantities of e-waste to these states without matching the same terms for Recyclea, it goes against the agreement.

It might be argued that the Responsible Electronics Recycling Act (2013) is consistent with Article XX and XXI of the GATT charter. Article XX provides room for some general exceptions to GATT regulations on quantitative restrictions, a basis of which may be that that they are necessary to protect human, animal or plant life or health.[7] While this article provides for some general exclusion on which quantitative restrictions may be applied, the Act, in allowing preferential treatment to be accorded to Tabletea and Celluria is in contradiction with the chapeau of the Article. The chapeau provides that any restrictions enforced must be neither “a disguised restriction on international trade” nor “used in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail.”[8] In honoring a Free Trade Agreement with these Tabletea and Celluria and imposing a ban on exports to Recyclea, Ewastea is acting contrary the GATT agreement. Further, the act may be said to be consistent with Article XXI, which allows for exclusion on the basis of national security.[9] While it is certainly permissible to enact prohibitions in the interests of national security, this particular prohibition is invalidated because of selective application to Tabletea and Celluria. [10]^{, [11]}

In conclusion, since the measures that the Ewastean Government took are inconsistent with treaty obligations under WTO law. The said actions constitute a disguised restriction on trade and as such should not be allowed. The Recyclean Government should institute legal proceeding against the Ewastean Government. To further strengthen their case, the Recyclean Government is backed the fact that of the forty-four cases that used GATT Article XX as a defense, only one was successful.

References

Congressional Research Service, ‘Issues In International Trade Law: Restricting Exports Of Electronic Waste’ (2012) <https://www.fas.org/sgp/crs/misc/R42373.pdf>

Reichert, Patricia, E-Waste Recycling (Legislative Reference Bureau, 2008)

Taniguchi, Yasuhei, Alan Yanovich and Jan Bohanes, The WTO In The Twenty-First Century (Cambridge University Press, 2007)

Yang, Guohua, Bryan Mercurio and Yongjie Li, WTO Dispute Settlement Understanding (Kluwer Law International, 2005)

WTO, WTO Analytical Index: Guide To WTO Law And Practice – General Agreement On Tariffs And Trade 1994 (2015) <https://www.wto.org/english/res_e/booksp_e/analytic_index_e/gatt1994_08_e.htm#article21>

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[1] Guohua Yang, Bryan Mercurio and Yongjie Li, WTO Dispute Settlement Understanding (Kluwer Law International, 2005).

[2] GATT, Article XI:1 in WTO, WTO Analytical Index: Guide To WTO Law And Practice – General Agreement On Tariffs And Trade 1994 (2015) <https://www.wto.org/english/res_e/booksp_e/analytic_index_e/gatt1994_08_e.htm#article21>.

[3] GATT, Article XIII:1

[4] Appellate Body Report, U.S. – Gasoline

[5] GATT, Article I

[6] Patricia Reichert, E-Waste Recycling (Legislative Reference Bureau, 2008).

[7] GATT, Article XX paragraph (g)

[8] Congressional Research Service, ‘Issues In International Trade Law: Restricting Exports Of Electronic Waste’ (2012) <https://www.fas.org/sgp/crs/misc/R42373.pdf>.

[9] GATT, Article XXI

[10] Yasuhei Taniguchi, Alan Yanovich and Jan Bohanes, The WTO In The Twenty-First Century (Cambridge University Press, 2007).

[11] Above 8, 12.