I. Measures to control tobacco in the framework of the World Trade Organization
1. Trans-boundary tobacco control and The General Agreement of Tariffs and Trade 1994
Under the General Agreement of Tariffs and Trade 1994 (‘GATT 1994’), the exportation and importation of tobacco products among the World Trade Organization (‘WTO’) members are operated within the framework of the following strict principles:
(i) Non-discrimination: Principles of non-discrimination are composed of Most Favoured-Nation Treatment (‘MFN treatment’) and National Treatment which are regulated in Articles I and III of the GATT 1994, respectively. Accordingly, under the principle of MFN treatment, WTO members must ensure that their treatments for an imported product from another member are not less favoured than like products originating in all other members. Beside that, the principle of National Treatment requires WTO members to have non-discriminatory treatment between their domestic products and like products imported from other members. (ii) No quantitative restriction: Every quantitative restriction over imported products from WTO members is prohibited. …show more content…
(iii) Schedules of Concessions: All WTO members have to commit their import taxes and duties in its schedule of concession and do not apply higher taxes and duties than that schedule.
However, by Article XX, the GATT 1994 establishes a breathing room for WTO members to impose higher import taxes than their commitments in the schedules of concessions or quantitative barriers on imported products from all other WTO members as follows:
Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:
(a) necessary to protect public morals;
(b) necessary to protect human, animal or plant life or health;… Pursuant to the language of Article XX, the GATT 1994 does not provide unconditionally general exception for WTO members. On contrast WTO members shall ‘respect the requirements laid down in the ‘chapeau’ of Article XX’. According to the Appellate Body’s viewpoint in United State – Import Prohibition of Certain Shrimp and Shrimp Products, Resource to Article 21.5 of the DSU by Malaysia, WTO members need to meet three requirements when they adopt and apply a justifiable measure in the light of Article XX of the GATT 1994, accordingly, this measure must not: (i) become an ‘arbitrary discrimination’ between countries where the same condition prevail; (ii) become an unjustifiable discrimination between countries where the same condition prevail; (iii) implement in order to establish commercial restriction. A viewpoint believes that Article XX likely gives WTO members a helping hand to ‘exempt from non-discrimination requirements of the GATT 1994’. However, the two first conditions require WTO members, when invoke general exceptions under Article XX to justify their measures, to satisfy themselves that these measures do not establish discrimination between products from members have the same commercial level. On the other hand, Article XX keeps silence about the meaning of the word ‘countries’ in the Chapeau and whether this notion implies exporting and importing countries as well or just only exporting ones. If this notion indicates only exporting countries, the discrimination will happen only when the measures violate the MFN principle regulated in Article I of the GATT 1994. On contrast, if this notion covers exporting and importing countries, the non-discriminatory requirement in the Chapeau will be understood that WTO members cannot apply measures which violate both MFN and National treatments. While the …show more content…
In addition, the compatibility between the general exception under Article XX(b) and tobacco control measures was affirmed by the Panel in Thailand – Restrictions on Important, Internal Sale and Use of Tobacco in 1990, under the framework of the General Agreement of Tariffs in Trade 1947 (‘GATT 1947’). The Panel found that ‘smoking was the cause of a serious harm to human health and therefore, measure designed to reduce the consumption of cigarettes fell within the scope of Article XX(b)’. Moreover, the World Health Organization (‘WHO’) sees tobacco use as a one of the biggest threat to human health that the world is facing. Accordingly, tobacco use is the cause of death of over six million people annually, with five million of that figure dying as a consequence of direct-tobacco use and more than six hundred thousand dying as victims of second-hand
1. Trans-boundary tobacco control and The General Agreement of Tariffs and Trade 1994
Under the General Agreement of Tariffs and Trade 1994 (‘GATT 1994’), the exportation and importation of tobacco products among the World Trade Organization (‘WTO’) members are operated within the framework of the following strict principles:
(i) Non-discrimination: Principles of non-discrimination are composed of Most Favoured-Nation Treatment (‘MFN treatment’) and National Treatment which are regulated in Articles I and III of the GATT 1994, respectively. Accordingly, under the principle of MFN treatment, WTO members must ensure that their treatments for an imported product from another member are not less favoured than like products originating in all other members. Beside that, the principle of National Treatment requires WTO members to have non-discriminatory treatment between their domestic products and like products imported from other members. (ii) No quantitative restriction: Every quantitative restriction over imported products from WTO members is prohibited. …show more content…
(iii) Schedules of Concessions: All WTO members have to commit their import taxes and duties in its schedule of concession and do not apply higher taxes and duties than that schedule.
However, by Article XX, the GATT 1994 establishes a breathing room for WTO members to impose higher import taxes than their commitments in the schedules of concessions or quantitative barriers on imported products from all other WTO members as follows:
Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:
(a) necessary to protect public morals;
(b) necessary to protect human, animal or plant life or health;… Pursuant to the language of Article XX, the GATT 1994 does not provide unconditionally general exception for WTO members. On contrast WTO members shall ‘respect the requirements laid down in the ‘chapeau’ of Article XX’. According to the Appellate Body’s viewpoint in United State – Import Prohibition of Certain Shrimp and Shrimp Products, Resource to Article 21.5 of the DSU by Malaysia, WTO members need to meet three requirements when they adopt and apply a justifiable measure in the light of Article XX of the GATT 1994, accordingly, this measure must not: (i) become an ‘arbitrary discrimination’ between countries where the same condition prevail; (ii) become an unjustifiable discrimination between countries where the same condition prevail; (iii) implement in order to establish commercial restriction. A viewpoint believes that Article XX likely gives WTO members a helping hand to ‘exempt from non-discrimination requirements of the GATT 1994’. However, the two first conditions require WTO members, when invoke general exceptions under Article XX to justify their measures, to satisfy themselves that these measures do not establish discrimination between products from members have the same commercial level. On the other hand, Article XX keeps silence about the meaning of the word ‘countries’ in the Chapeau and whether this notion implies exporting and importing countries as well or just only exporting ones. If this notion indicates only exporting countries, the discrimination will happen only when the measures violate the MFN principle regulated in Article I of the GATT 1994. On contrast, if this notion covers exporting and importing countries, the non-discriminatory requirement in the Chapeau will be understood that WTO members cannot apply measures which violate both MFN and National treatments. While the …show more content…
In addition, the compatibility between the general exception under Article XX(b) and tobacco control measures was affirmed by the Panel in Thailand – Restrictions on Important, Internal Sale and Use of Tobacco in 1990, under the framework of the General Agreement of Tariffs in Trade 1947 (‘GATT 1947’). The Panel found that ‘smoking was the cause of a serious harm to human health and therefore, measure designed to reduce the consumption of cigarettes fell within the scope of Article XX(b)’. Moreover, the World Health Organization (‘WHO’) sees tobacco use as a one of the biggest threat to human health that the world is facing. Accordingly, tobacco use is the cause of death of over six million people annually, with five million of that figure dying as a consequence of direct-tobacco use and more than six hundred thousand dying as victims of second-hand