by Stefan Zleptnig. Martinus Nijhoff Publishers, Holland. 400pp. Hardcover. €140.00/$207.00. ISBN: 9789004178601.
Reviewed by Dr. Sideek M. Seyad, Faculty of Law, Stockholm University, Sweden. Email: sideek.mohamed [at] juridicum.su.se.
There are several books and articles published in the field of International Trade Law focusing on different aspects of cross border trade and services. An important legal issue in International Trade Law that has attracted little attention in academic works relates to the right of member countries of the World Trade Organization (WTO) to deviate from their obligation to open the markets on grounds based on non-economic objectives. The book on NON-ECONOMIC OBJECTIVES IN WTO LAW by Stefan Zleptnig is thus an invaluable contribution to fill this legal gap in the field of International Trade Law.
There are four specific international legal instruments that are subject to close scrutiny in this book. The author examines the nature and scope of non economic objectives that are incorporated in these international agreements, namely the General Agreement on Trade and Tariff (GATT), the General Agreement on Trade in Services (GATS), Sanitary and Phytosanitary Agreement (SPS), and Technical Barriers to Trade Agreement (TBT) respectively.
The book is divided into three parts and is further divided into eight separate chapters together with a general conclusion. In Part 1, Chapter One of the book, Zleptnig highlights both the positive and negative aspects of trade liberalization, and he develops and adduces with clarity and precision various arguments for and against restricting trade for non economic purposes. Chapter Two deals with the rules of interpretation of non-economic provisions as found in these international trade treaties. This chapter examines whether the exceptions based on non-economic objectives should be interpreted broadly or narrowly and for this purpose the author draws much inspiration from the Vienna Convention on the Law of Treaties.
The role and functions of non-economic exception clauses in trade agreement forms the main objective of Chapter Three of the book. Zleptnig rightly argues that such clauses are essential for the overall stability of international trade agreements. Apart from highlighting the scope and nature of exception clauses, the author cautions about the risks of misuse of such exception clauses and argues for the need to strike a balance between two competing interests, namely free trade and trade regulation.
The different ways in which non-economic objectives could be utilized to justify the imposition of trade restrictions is the subject matter of Chapter Four. This chapter highlights [*608] different grounds of justification based on classical non-economic exception clauses which are specifically incorporated into the GATT, GATS, SPS and TBT agreements respectively. Zleptnig goes into the origin and historical background of non-economic clauses and traces them as far back as the International Trade Organization, which included such provisions but was not ratified and thus failed to come into force.
There is a great deal of discussion in this chapter on Article 36 of the Treaty on the Functioning of the European Union, which forms an exception to the free movement of goods within the European single market. The grounds set out in this article enabling a Member State to deviate from its obligation to prohibit quantitative restrictions on imports and exports, such as those based on public policy, order and morality resembles those found in Article XX of GATT and Article X1V of GATS agreements. Zleptnig rightly points out, supported by reference to case law, that the Court of Justice of the European Union construes rather narrowly the exceptions to free movement based on grounds of protection of non-economic objectives.
Part Two starts with Chapter Five and examines in a comprehensive manner the non-economic justification clauses found in GATT and GATS agreements. Some of the non-economic objectives are expressly incorporated in these legal instruments, and others have to be construed implicitly. The case law of the Court of Justice of the European Union recognizes the right of Member States to invoke both economic and non-economic dimensions in a given case, but such a practice is absent in the WTO framework. Under the latter system, derogation to free trade is possible only if a Member State advances a non-economic justification. This chapter contains a lengthy and interesting discussion on explicit grounds of justification, such as public morals and, to limited extent, implicit grounds such as environment, human rights, labor standards, culture, and the like.
Chapters Five and Six are very comprehensive and detailed, and these chapters cover almost half of the entire book! Chapter Six deals with the substantive and procedural requirements that need to be fulfilled to invoke Articles XX of GATT and Articles X1V of GATS. This chapter provides much food for thought for Member States relying on derogation, not only in relation to identification of a particular non economic objective, but also to determine the level at which such an objective had to be attained. Zleptnig further discusses at length different tests and requirements for the invocation of the non-economic exceptions. In this context, he makes a comparison between necessity test and proportionality test as developed under WTO and EU law respectively.
Part Three begins with Chapter Seven dealing with non-economic justification provisions in the SPS agreement. This agreement deals with sanitary and phytosanitary measures and focuses on the protection of human and animal life and protection of plant life.Zleptnig examines some of the measures included in SPS agreement and compares them with similar provisions in GATT and GATS. The discussion follows a similar approach adopted in the previous chapters, highlighting the grounds of justification, the substantive and procedural requirements to be fulfilled for their invocation, and so on. In doing so, Zleptnig also highlights an [*609] interesting difference in relation to procedural requirements under SPS and GATS. Under the latter system, burden of proof of the application of non-economic grounds is on the defending Member States of WTO, whereas under the SPS agreement, such burden is placed on the complaining Member State.
Chapter Eight, dealing with TBT agreement, forms the final chapter of the book. This chapter deals with technical barriers to cross-border trade. Zleptnig highlights various requirements, such as those concerning product characteristics, processes, packaging methods, labeling requirements, and the like, which WTO states could use as a shield to protect their national markets from foreign competition. These standards are adopted by various states to serve non-economic objectives, like consumer protection, environment, and so on. Such national measures could potentially create barriers to international trade. The author highlights how TBT agreement incorporates non-economic objectives, which are similar to the SPS agreement. The chapter traces the history, scope and purposes of this agreement and then proceeds to highlight the grounds of justification, substantive and procedural requirements, level of protection as in the previous chapters. Finally, Zleptnig draws an overall conclusion where he in fact summarizes all the previous chapters.
In this book, Zleptnig has not only simplified the complex relationship between economic and non-economic objectives in WTO law, but also clearly highlights some interesting legal issues and goes on to critically examine them in a detailed and comprehensive manner. He identifies a host of non-economic objectives that could be invoked by a WTO state as a means to deviate from its obligations to remove the barriers to cross-border free trade in goods and services, such as those relating to the protection of human rights, public morals, life and health, environment, and so on. A member state of the WTO may invoke such non-economic objectives as a justification to restrict cross-border trade, which is normally prohibited under WTO law. The author analyses not only the relevant non-economic grounds but also the substantive and procedural requirements for their invocation. What is most interesting in this work is that it clearly identifies what constitutes non-economic objectives for the purposes of International Trade Law.
The book will be easily comprehensible to readers who are familiar with the subject matters covered by the four international trade agreements. Zleptnig could have explained in some detail the aims and objectives of these agreements. The aims, objectives and the functions of the non-economic objectives, which is the main focus of this book, would have been better understood if the reader is provided with some background information to the underlying objectives of these agreements.
The right of Member States of the European Union to deviate from their Treaty obligations to liberalize the four economic freedoms on grounds of non-economic objectives is specifically recognized in the Treaty. Furthermore the Court of Justice of the European Union itself has contributed enormously in setting out the conditions and limits to the invocation of the exceptions to the free movements. There is a great deal of discussion in this book on the non-economic objectives grounds as developed in EU Law. [*610]
Even though it is a valuable source to examine the nature and scope of this exception in International Trade Law, one must not lose sight of the difference between liberalization under the International Trade Law and EU Law. The aim of WTO Law is only to facilitate and remove barriers to free trade between its member countries, whereas the objective of the EU is more ambitious, which is to create a single market in goods, persons, services and capital. It would have been more prudent if Zleptnig had clearly and specifically highlighted this distinction.
An important task of the Court of Justice of the European Union is to interpret the Treaties and the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union, including the international agreements the EU has entered into with third countries. In several cases involving the interpretation of various bilateral trade agreements between the EU and third countries, the Court has declared unequivocally that it is not bound to interpret the legal provisions in such agreements and Union law in a similar manner even if the legal formulations are identical. In other words, the Court wants the Union to maintain the distinction between the single market as developed within the territorial limits of the Union and free trade arrangements based on bilateral and multilateral agreements with third countries. An extension of this judicial approach is that the Court will be more tolerant towards Member States to invoke the non-economic objectives contained in bilateral agreements than it would do so in relation to similar provisions in the Lisbon Treaty.
The discussion on the non-economic objectives as a ground to deviate from the International Trade Law obligations is supported by reference to the similar developments in the European Union Law. In almost every chapter of the book, there is some discussion about the developments of non-economic objectives in the EU Law. The aim of highlighting this parallel approach is certainly not a criticism but to suggest that the author could have developed his work more on a comparative basis between these two highly developed legal systems. The title of the book itself could have been worded slightly differently as a comparative study of non-economic objectives in WTO and EU law. Such a title to the book would have attracted a wider audience as there is insufficient legal research on matters relating to the right of Member States of the EU to deviate from their Treaty obligations on grounds on non-economic objectives. This view is shared and made abundantly clear in the Preface to the book by Dr. Mads Andenas, who rightly declares that Zleptnig’s book is not only of interest to WTO Lawyers but also to EC lawyers.
All in all, there is no doubt that this is an interesting piece of work which could be recommended without any reservation for those interested in International Trade Law, such as lawyers and trade diplomats, and not least to advanced students in the field of international trade and commerce.
© Copyright 2010 by the author, Sideek M. Seyad.