Litigating environmental Protection and Public Health at the WTo: The Brazil-retreaded Tyres Case ICTSD Project on WTo Jurisprudence and Sustainable Development
In late 2007 the Appellate Body report on the landmark case Brazil – Measures Affecting Imports of Retreaded Tyres (DS332) 1 between the EC as Complainant and Brazil as Respondent was circulated. In response to the EC’s challenges, Brazil had argued that its measures were justified under GATT Article XX (b) which allows measures “necessary to protect human, animal or plant life or health”. Even though the Appellate Body eventually ruled that the measures were WTO inconsistent, the case constitutes a major landmark ruling and is often considered as a great success for environmental policies. In response to the ruling, experts such as Professor Joost Pauwelyn found that “the WTO has truly become an environmental treaty with Art. XX as a catch-all obligation to engage in sound and reasonable environmental policies”. 2 Moreover, the case has clarified several aspects of the Article XX necessity test that are of crucial importance for developing countries. First and foremost the case clarified that the decision regarding the meaning of and ruling on “undue burden” needs to be determined based on a country’s capabilities, i.e. the degree of development within a country needs to be considered.
Background: Global Trade in Used and retreaded Tyres
Retreading tyres is a way of recycling used tyres in which the life of the original tyre is extended by 30-100%. In that process, used tyres are reconditioned for further use by stripping the worn tread from the skeleton and replacing it with new material in the form of a new tread. Although recycling used tyres through retreading is generally environmentally friendly because it expands the overall lifespan of a tyre, international trade in already retreaded tyres can negatively impact the environment and public health in the importing country. Under most circumstances tyres can only be retreaded once and the life span of a retreaded tyre is generally Brazil – Measures Affecting Imports of Retreaded Tyres [Brazil – Tyres], Panel Report WT/DS332/R 12 June 2007 [Panel]; Appellate Body Report, WT/DS332/AB/R 3 December 2007 [Appellate Body]. 2 Joost Pauwelyn in the International Economic Law and Policy Blog, 04.07.2007, accessible at: http://worldtradelaw.typepad.com/ielpblog/2007/07/brazil-tyres-th.html. 1
considerably shorter than that of a new tyre which can still be retreaded after use. The import of retreaded tyres hence results in a higher number of waste tyres in the country of destination. This poses significant challenges to all countries since tyres are generally non-biodegradable and special technology is required for their disposal since the process of burning tyres releases organic and inorganic pollutants. Tropical regions, especially developing countries, face additional problems. Due to limited disposal capacities, tyres are often stored in landfills or disposed of in illegal dumps. These tyres tend to accumulate water and easily become vectors for diseases such as yellow fever, malaria and dengue. The storage and disposal of used tyres, which increases with importation of used and retreaded tyres, is thus likely to have adverse effects on human health and the environment. A number of developing countries have reacted to these difficulties with a general import ban on used and retreaded tyres. 3 Although significantly less challenged by the difficulties of tyre disposal, developed countries have also undertaken various measures to address the problem of tyre disposal. Domestic Measures within the EC and Brazil Since 1993 the EC has adopted several directives regulating tyre disposal. While the Landfill Directive4 prohibits the disposal of used tyres in EC landfills, the End of Life Vehicle Directive5 requires Member countries to have...