dti
the department for Enterprise
4 Article XX b allows measures inconsistent with the general agreement to be taken where these measures are "necessary to protect human, plant or animal life or health". The consequences of ozone depletion are such that any government might reasonably argue that action to curtail further ozone depletion was unquestionably necessary for all of these reasons. The Article XX b test is met.
5
The chapeau to Article XX provides that measures which are contrary to GATT obligations, which are justified in terms of their policy goals while the other provisions of the Article, must not amount to "arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade".
6 "Arbitrary or unjustifiable discrimination" in this case means that parties to the Montreal Protocol might be permitted to implement a system of otherwise discriminatory trade measures aimed at securing an end to the use of ozone-depleting substances in the territory of Contracting Parties not complying with the requirements of the Protocol. The test is whether such action would constitute discrimination between countries where the same conditions prevail. It is my view that a government policy on the control of the use of CFCs is a condition in this context. circumstances where the Taiwan Government's policy on CFCs inconsistent with those agreed as necessary to control this particular hazard, it would be open to GATT Contracting Parties to apply the same trade restrictions they would apply to other non-parties to the Protocol, for the same reasons.
In
7 Indeed, I would argue that the reverse of this argument is also true: if the European Community or other Parties to the Montreal Protocol were to impose trade restrictions on GATT Contracting Parties, other than Taiwan, under the provisions of the Protocol, it would also be incumbent upon Parties to the Protocol to apply the same restrictions to Taiwan in circumstances where Taiwan's environmental policy was such that, if it was a State, it
it would be subject to trade restrictions under the Protocol.
8
It is important to note, however, that such action would not be provided for or mandated by the Protocol itself, but would amount unilateral action consistent with parallel obligations under the Protocol and consistent with separate obligations under the GATT.
your
Buf
IAN FLETCHER
pm20. if
2
Recycled Paper