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
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 absen...
| Main Authors: | , |
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| Format: | Article |
| Language: | Afrikaans |
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North-West University
2014-11-01
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| Series: | Potchefstroom Electronic Law Journal |
| Subjects: | |
| Online Access: | http://www.nwu.ac.za/sites/www.nwu.ac.za/files/files/p-per/issuepages/2014volume17no4/2014%2817%294WarikandwaOsode.article.pdf |
| _version_ | 1818853719922442240 |
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| author | Tapiwa Victor Warikandwa Patrick C Osode |
| author_facet | Tapiwa Victor Warikandwa Patrick C Osode |
| author_sort | Tapiwa Victor Warikandwa |
| collection | DOAJ |
| description | 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. |
| first_indexed | 2024-12-19T07:41:17Z |
| format | Article |
| id | doaj.art-33ea507f427f48e2b4687bb3e8837334 |
| institution | Directory Open Access Journal |
| issn | 1727-3781 |
| language | Afrikaans |
| last_indexed | 2024-12-19T07:41:17Z |
| publishDate | 2014-11-01 |
| publisher | North-West University |
| record_format | Article |
| series | Potchefstroom Electronic Law Journal |
| spelling | doaj.art-33ea507f427f48e2b4687bb3e88373342022-12-21T20:30:26ZafrNorth-West UniversityPotchefstroom Electronic Law Journal1727-37812014-11-0117412621285http://dx.doi.org/10.4314/pelj.v17i4.02Managing 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 CigarettesTapiwa Victor Warikandwa0Patrick C Osode1University of Fort HareUniversity of Fort HareUnder 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.http://www.nwu.ac.za/sites/www.nwu.ac.za/files/files/p-per/issuepages/2014volume17no4/2014%2817%294WarikandwaOsode.article.pdfWorld Trade Organisation trade - public health linkagetrade liberalisationtrade and environment linkagenational sovereignty and trade regulation |
| spellingShingle | Tapiwa Victor Warikandwa Patrick C Osode 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 World Trade Organisation trade - public health linkage trade liberalisation trade and environment linkage national sovereignty and trade regulation |
| title | 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 |
| title_full | 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 |
| title_fullStr | 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 |
| title_full_unstemmed | 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 |
| title_short | 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 |
| title_sort | 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 |
| topic | World Trade Organisation trade - public health linkage trade liberalisation trade and environment linkage national sovereignty and trade regulation |
| url | http://www.nwu.ac.za/sites/www.nwu.ac.za/files/files/p-per/issuepages/2014volume17no4/2014%2817%294WarikandwaOsode.article.pdf |
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