Der Non-Violation Complaint im System der WTO: Neue Perspektiven im Konflikt um Handel und Umwelt? Der Non-Violation Complaint im System der WTO: Neue Perspektiven im Konflikt um Handel und Umwelt?

Several scholars have suggested different ways of reconciling the trade and environment issue within the WTO. However, requiring specific majorities among member states, those options remain visions rather than contributing to a practical solution. The central proposition of this note is that the existing structure of the GATT/WTO regime already provides a path for reconciliation of trade and environment issues. To follow that path, one has to return to the origin of the GATT system. The concept of free trade as promoted by GATT did not intend to abolish all trade barriers, but to focus on a single one: tariffs. In addition, GATT's gradual approach to the aim of open trade provides for multilateral tariff negotiations to reduce existing tariff rates and to bind tariff concessions. When tariff concessions are »bound«, the duties assessed on the »bound« items may not be greater than the bound rate. The great bulk of the current GATT tariff commitments or »bindings«, as they are often called, are the result of eight major rounds of negotiation.Although contracting parties are »bound« by the tariff levels listed on their schedules, the GATT contains an explicit framework for their renegotiation. The contracting party seeking to modify or withdraw the concession becomes obligated to provide »compensatory adjustment« to contracting parties that are adversely affected. If the contracting party withdrawing the concession fails to offer adequate compensation (ordinarily by granting an equivalent concession to other products), it must be prepared to accept »substantially equivalent« withdrawals of concessions by other contracting parties regarding its exports.To a certain extent, most of the remaining GATT obligations are designed to reinforce the basic tariff obligation preventing evasion of the tariff obligation by the use of other non-tariff barriers. Article XI (1) GATT generally prohibits the use of quotas or other quantitative limitations on exported or imported products. Article III GATT contains the »national treatment obligation«, which imposes a rule of nondiscrimination between goods that are domestically produced and those that are imported, once the latter passed the border and paid the tariff. If a national measure corresponds to the requirements of Art. III:4 GATT, the measure is considered to be GATT-legal. If the measure violates Art. III:4 GATT, it may still be justified pursuant to Art. XX GATT (e.g.for the protection of human, animal or plant life of health). Hence, Art. XX GATT comes into play if a prima facie violation of a GATT rule took place by a national measure. But as long as the requirements of Art. XX GATT are met, such a measure nevertheless remains valid and is justified by Art. XX GATT. Being in compliance with those requirements (of Art. III or XX GATT), the country claiming the internal measure or exception does not have to enter into negotiations with affected countries or even provide notification. There is no provision for safeguarding international obligations in such cases or for compensating adversely affected countries. The granted concession for a special product was only conceded within the scope framed and limited, i.e. by the exceptions of Art. XX GATT. In other words, if permitted (Art. III GATT) or justified (Art. XX GATT) by the pertinent provisions, a country may restrict or ban a product from an exporting country, even if it granted a concession for it. Moreover, the concession it received in return remains valid. The aforementioned situation becomes even more sensitive if the measure justified under Art. XX GATT not only includes the protection from an actual danger but also actions taken in a precautionary manner. It may, therefore, be understandable to raise the question whether there is an option to rebalance the disequilibrium of concessions caused by the measure.With the non violation complaint, GATT itself offers a possible way out. The relevant provision explicitly