| The international trade legal system already becomes one importantbranch of the modern international law. The WTO law is the basis of theinternational trade legal system. The core content of the WTO law systemis GATT1994. One big characteristic of the international law is theexceptional provision that realizes the balance of international tradeliberalization and the public order of the sovereign state. The same asthe general international law, GATT1994 also floods the massiveexceptional provisions. These provisions are used to cite in specialsituation. Because in the global scope the environment question is day by dayprominent, the call that strengthens the environmental protection andrealizes the continuable development is rising. But the environment is thefoundation of the economical trade activity, the economical trade activityalso has the direct influence to the environment. Therefore, the risingenvironmental protection request directly attacks GATT / WTOmultilateral trade system that take the promotion of the free trade as ownduty. The WTO legal system can't neglect the environmental protectionand the continuable development, and thereupon there are the massiveexceptional provisions related the environment. These exceptionalprovisions allowed the WTO member side to implement the restrictivemeasures that violate the basic principle of the multilateral trade systemfor the environmental protection goal under the specific situation. Theseexceptional provisions mainly include: (b) and (g) items of the 20th termof GATT1994; 2nd term of TBT; 8th term of SCM; 2nd term of SPS;14th term of GATS. Among these exceptional provisions, the general exceptionalprovision of GATT is especially noticeable. (B) item and (g) item are "Subject to the requirement that such measures are not applied in amanner which would constitute a means of arbitrary or unjustifiablediscrimination between countries where the same conditions prevail, or adisguised restriction on international trade, nothing in this Agreement shallbe construed to prevent the adoption or enforcement by any contractingparty of measures: (b) necessary to protect human, animal or plant life or health; (g) relating to the conservation of exhaustible natural resources ifsuch measures are made effective in conjunction with restrictions ondomestic production or consumption." Although the above two stipulations are recognized as exceptionalprovision related the environmental protection, but GATT itself by nomeans mentions "the environment". Because the environmentalprotection not yet became the global problem in 1947, moreover, there isnot a unified, standard definition of the environment in the legal science.Plenty of international pacts, bilateral treaties as well as manifestoes andresolutions that involve the environmental protection do not have thesame Connotation and extension about the environmental. But the WTOlately law document starts to use the expression of "the environment" and"the environmental protection", moreover the problem of trade andenvironmental becomes a WTO new subject. Therefore, for a series ofstipulations including "the conservation of exhaustible natural resources"and "necessary to protect human, animal or plant life or health" in 20th ofGATT, we used the appellation of "the environmental exceptionalprovision". In recent years, the cases that refer to "the environmental exceptionalprovisions" repeatedly appeared, the explanation and application for themis not yet consistent. But our country already joined WTO and has tofollow WTO. So the further research for "the environmental exceptionalprovision" appears especially necessary. This paper first introduces the historical source, the evolution, theconnotation and the legal principle theory of "the environmentalexceptional provision", then analyzes the condition that correctly explainsand applies this provision, finally proposes the view and the suggestionfor our country. This paper divides into five parts, main content as follows: The first part mainly introduces the historical sou... |
PDF Full Text Request