Transboundary movements of wastes and end-of-life goods under WTO law

Re-use, recycling, as well as environmentally sound waste management and disposal operations have become important economic factors, particularly in industrialized countries. It is thus not surprising that an international market for waste materials has emerged; waste and end-of-life goods are regularly traded and shipped across borders for their disposal and recovery. In addressing the transboundary movements of waste and end-of-life goods from the viewpoint of the law of the World Trade Organization (‘WTO’) and the General Agreement on Tariffs and Trade (‘GATT’) in particular, this chpater first raises the issue that the notion of ‘waste’ has a relative connotation. What is perceived as worthless ‘rubbish’ by some may be a valuable and tradable commodity for others, and as such, wastes and end-of-life goods will generally fall within the broad scope of application of WTO law and the GATT. As a consequence, states imposing trade restrictions on the transboundary movements of waste and end-of-life goods run the risk of breaching WTO law. In examining the compatibility of trade measures with general principles of the GATT, this chapter addresses questions that are bound to arise when applying concepts of the GATT to end-of-life materials. It then analyses the possibilities of and limitations to justifying trade-restrictive measures under Article XX of the GATT, according to which deviations from the GATT principles may be justified if a state can demonstrate that its measures are necessary to reach legitimate policy goals and are applied in a manner that does not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade. In doing so, this chapter raises questions on the role of the WTO panels and the Appellate Body in addressing uncertain risk situations that touch on environmental, social and ethical (‘non-trade’) concerns. The chapter comes to the conclusion that while restrictions to cross-border movements of hazardous wastes and end-of-life goods are most likely to be justified when implemented with a view to environmental and human health concerns, justifying less clear-cut cases – for example, cases involving materials that are not generally acknowledged as ‘hazardous’ or trade restrictions grounded primarily on ethical considerations – is a more ambitious task. This outcome is also in accordance with the legal grey areas of the regulatory frameworks on transboundary movements of wastes on an international and regional level, which do not regulate or control non-hazardous, ‘green-listed’ wastes to a wide extent.