Managing the Trade-Public Health Linkage in Defence of Trade Liberalisation and National Sovereignty: An Appraisal of United States-Measures affecting the Production and Sale of Clove Cigarettes

Authors

DOI:

https://doi.org/10.17159/1727-3781/2014/v17i4a2164

Keywords:

World Trade Organisation, trade - public health linkage, trade liberalisation, trade and environment linkage, national sovereignty and trade regulation

Abstract

Under the legal framework of the World Trade Organisation (WTO), countries have great flexibility to unilaterally adopt environmental regulations that have effect within their territories only. However, the same discretion does not apply to measures that adversely affect imports or exports. An absence of clear guidelines on how to address some of the attendant issues poses challenges to the effectiveness of a trade-environment linkage. Not surprisingly, attempts to link the environment and trade have resulted in a number of jurisprudentially significant cases in which the WTO's Panel and Appellate Body have tried to address critical questions about the Organisation's capacity to address or manage legal or quasi-legal subjects falling outside the scope of its legal framework. In this regard the Panel and Appellate Body reports in the case of United States - Measures Affecting the Production and Sale of Clove Cigarettes  (US-Clove Cigarettes) have re-ignited the debate on the Organisation's existential challenge of balancing the rights of the sovereign to freely regulate matters pertaining to health or the environment within its domestic domain with the need to maintain the sanctity of the multilateral trade order. This article demonstrates that in the US-Clove Cigarettes case the WTO Panel and Appellate Body, whilst managing to successfully defend the integrity of WTO Member States' treaty commitments and the overarching importance of trade liberalisation within the organisation's policy foundations even in the context of public health-related regulations, failed to provide any substantive affirmation of the development-related challenges facing developing countries that are part of the WTO family.

 

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References

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Reports

Appellate Body Report Brazil - Measures Affecting Imports of Retreaded Tyres WT/DS332/AB/R (December17, 2007) DSR 2007: IV, 1527

Appellate Body Report European Communities - Measures Affecting Asbestos and Asbestos Containing Products 99, WT/DS135/AB/R (April 5, 2001) DSR 2001: VII, 3243

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Request for Consultations by Indonesia US-Clove Cigarettes 5, WT/DS406/1 (April 4, 2010)

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WTO Panel Report United States - Measures Affecting the Production and Sale of Clove Cigarettes WT/DS406/R (September2, 2011)

Case law

FDA v Brown and Williamson Tobacco Corporation 529 US 120 161 (2000)

Legislation

Family Smoking Prevention and Tobacco Control Act, Public Law No. 111-131, 2009

Federal Food, Drug, and Cosmetic Act, United States Code, Title 21, Chapter 9

International instruments

Agreement on the Application of Sanitary and Phytosanitary Measures (1995)

Agreement on Technical Barriers to Trade (1995)

Framework Convention on Tobacco Control (2005)

Marrakech Agreement Establishing the WTO (1994)

Published

11-04-2017

How to Cite

Warikandwa, T. V., & Osode, P. C. (2017). Managing the Trade-Public Health Linkage in Defence of Trade Liberalisation and National Sovereignty: An Appraisal of United States-Measures affecting the Production and Sale of Clove Cigarettes. Potchefstroom Electronic Law Journal, 17(4), 1262–1285. https://doi.org/10.17159/1727-3781/2014/v17i4a2164

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Section

Articles