1. FTA as Vehicle for Other Public Goods - Labor, Environment, Human Rights, Public Health
Chingwen Hsueh Assistant Professor NCTU Law School

2. Key Questions WTO vs. TPP
How the Other Public Goods fit in the Trade Oriented Legal Framework ?
Do the Models Work?
What are the Missing Parts in the Vehicle for other public goods?
WTO vs. TPP

3. Models to Introduce other Public Goods in Trade Legal Framework
Other public goods as legal defense in Trade Disputes
Other public goods as exceptions to Trade Rules
Market access as incentive to enhance protections for other public goods

4. Model I: non-trade rules as law applicable in trade disputes
Non-trade rules are legal norms, which have same legal status with trade rules
In case of conflicts between two set of rules, VCLT Art. 30 shall be applied
Trade rules could be inter se modified under the conditions provided in VCLT Art. 40

5. Model II: other public goods serve as exception to trade rules
Non-trade rules are legal norms applicable, only when the trade rules so adopted and adapted.
In case of conflicts between two set of rules, weighing and balancing should be made.
---- e.g. WTO panel and Appellate Body

6. Model III: market access as incentives to protection for other public goods
Joint purposes of trade and other public goods
Governmental cooperation on protection for other public goods
Stronger enforcement of domestic laws
Trade measures to encourage protection for other public goods
---e.g. environmental chapter, labor chapter in TPP

7. Does The Models Work?
Do the models work?

8. Model I: non-trade rules as law applicable in trade disputes
Theoretically, yes. However, hardly adopted.
Concerns for disguised trade protectionism
Insufficient resources for higher regulatory standards for other public goods
Overcapacity for the dispute resolution intuitions designed for trade
Lack of clear and operative rules for other public goods

9. Empirical Study on GATT XX
Model II: other public goods serve as exception to trade rules
Empirical Study on GATT XX

10. Empirical Study on GATT XX
US – Gasoline (AB)
chapeau
The discriminatory aspect of the measure constitutes "unjustifiable discrimination" and a "disguised restriction on international trade"
Canada – Periodicals
(Panel)
(d)
The import ban does not secure compliance with the tax provision and, as a result, its inconsistency with Article XI cannot be justified under Article XX(d)
US – Shrimp (AB)
Shrimp import ban constitutes "arbitrary" and "unjustifiable" discrimination under the Article XX chapeau.
Korea – Beef (AB)
Korea's dual retail system is not "necessary" to secure compliance with the Unfair Competition Act.
Argentina - Bovine Hides (Panel)
These Resolutions are "necessary" to secure compliance with the IVA and IG tax laws under Article XX(d), but cannot be justified under GATT Article XX because they are not consistent with the terms of the chapeau.
EC - Tariff Preferences (Panel)
(b)
The policy reflected in the Drug Arrangements is not one designed for the purpose of protecting human life or health in the European Communities.
EC - Trademarks / Gis (Panel)
European Communities did not meet its burden of showing that the examination and transmission of applications by foreign governments is covered by Article XX(d)
主張失敗的case及reasoning
Empirical Study on GATT XX

11. Empirical Study on GATT XX
Dominican Republic – Cigarettes (AB)
(d)
The tax stamp requirement is not "necessary" within the meaning of GATT
Article XX(d) and, therefore, is not justified under this provision.
Mexico - Taxes on Soft Drinks (AB)
"Mexico's measures cannot be justified under Article XX(d) as a matter of law."
Brazil – Tyres (AB)
chapeau
The imports of used tyres through court injunctions have resulted in the Import Ban being applied in a manner that constitutes a disguised restriction on international trade "only to the extent that these imports are taking place in such quantities that they significantly undermine the objective of the Import Ban.
U.S. - Shrimp (Thailand) (AB)
The EBR, as applied to subject shrimp, is not "necessary" to secure compliance with certain laws or regulations within the meaning of GATT Article XX(d).
China - Auto Parts (Panel)
China "does not provide any explanation how the measures are justified under Article XX(d) if the measures were found to be inconsistent with Article II:1(b)," noting that China offered no "supporting arguments or evidence."
主張失敗的case及reasoning
Empirical Study on GATT XX

12. Empirical Study on GATT XX
Colombia - Ports of Entry (Panel)
(d)
Colombia "has failed to establish that the ports of entry measure is necessary to ensure compliance with Colombian customs laws and regulations."
China - Publications and Audiovisual Products (AB)
(a)
China has not demonstrated that the measures at issue are "necessary" to protect public morals.
U.S. - Poultry (Panel)
(b)
Such an SPS measure has been found inconsistent with provisions of the SPS Agreement such as Articles 2 and 5, the disciplines of Article XX(b) cannot be applied so as to justify such a measure.
Thailand - Cigarettes (AB)
Thailand failed to identify precisely the 'laws or regulations' with which the measure at issue purportedly secures compliance, and engaged in no effort to establish that such laws and regulations are consistent with the GATT.
China - Raw Materials (AB)
(b) & (g)
China had not met its burden of proving that its export quota on refractory-grade bauxite and its export duty on fluorspar "relate to the conservation" of refractory-grade bauxite and fluorspar
主張失敗的case及reasoning
Empirical Study on GATT XX

13. Empirical Study on GATT XX
EC – Seal Products
(AB)
chapeau
The EU Seal Regime, in particular with respect to the IC exception, is not designed and applied in a manner that meets the requirements of the chapeau of Article XX of the GATT.
China – Rare Earth
(g)
China had not provided sufficient evidence to assess whether a certain production plan constituted a "restriction" under Article XX(g).
US – Tuna II (Mexico)
The United States has not demonstrated that these aspects of the amended tuna measure do not constitute arbitrary or unjustifiable discrimination within the meaning of the chapeau of Article XX.
Colombia – Textiles
(Panel)
(a)
Colombia has not demonstrated that the compound tariff is a measure "necessary to protect public morals.“
(d)
Colombia "has not demonstrated that the compound tariff is a measure necessary to secure compliance with laws or regulations.
India - Solar Cells
(j)
Solar cells and modules are not 'products in general or local short supply' in India
India has failed to demonstrate that DCR measures are measures to 'secure compliance' with the legal obligations in this provision."
主張失敗的case及reasoning
Empirical Study on GATT XX

14. Model III: market access as incentives to protection for other public goods
Soft enforcement mechanism at international level
Soft obligations for protections of other public goods
Superficial governmental cooperation
Insufficient trade incentives for protections of other public goods

15. What are the Missing Parts in the Vehicle for other public goods?
Does The Models Work?
What are the Missing Parts in the Vehicle for other public goods?

16. Still we have miles to go….
Deeper integration of public goods requires stronger capability of governance.
Democracy deficiency might slow down further integration of trade and other public goods
Stronger competence granted to the dispute resolution institutions…