EVOLVING WTO LAW CONCERNING HEALTH, SAFETY AND ENVIRONMENTAL MEASURES

Abstract

With the advent of the World Trade Organization (WTO) in 1995, the international trading system faced a new challenge: reinventing its mandate under the light of the sustainable development challenges confronting the global community in the twenty-first century. This challenge has emerged central to the identity of the WTO, since the organization is no longer simply about removing obstacles to trade, like its predecessor – the GATT, 1947. Instead, the WTO is facing the loaded question of how far it will go in scrutinizing the exercise of governmental authority of Members, in regard to internal regulatory issues that relate to trade. Facing this question has been far from easy, especially in connection with disputes concerning health, safety and environmental (HSE) measures, since HSE-related disputes touch upon core environmental and human rights issues. The WTO’s Appellate Body has approached the tensions that surface in the adjudication of these disputes by engaging in a process of dialogue among the various legal regimes that bear on HSE measures. This process of normative dialogue and interpretation has allowed the WTO to overcome the GATT’s isolation by situating WTO law within the broader public international law universe. Normative dialogue has thus fundamentally transformed the evolving WTO law concerning HSE measures. This article explores the contours of this proposition, with a view to assessing the degree to which WTO law secures the quantum of policy space that governments need to realize human rights and protection of the environment.