Trading between nations is very vital for the economic growth of trading partners. Due to globalization nations like Australia have opened their borders and boundaries for trade. Owing to the importance, trade treaties and organizations that promote fair treatments for trading partners have been established (Bown, 2011). This has led to Australia exporting live animals. Australia is known as one of the countries that has a vibrant trade on the exportation of live animals. Research reveals that this trade has brought about large amounts of revenue to the country. Moreover, it has created employment. Statistics of 2009 shows that Australia earned $999.5 million from the exporting of live animals. Furthermore, due to this trade the livestock industry has grown and it has managed to employ 10,000 people (Department of Agriculture, Fisheries and Forestry, 2012; Department Of Agriculture, Fisheries and Forestry, 2011).
However, despite the vibrant business, animal rights groups have complained on how these live animals are being transported. One such group is the RSPCA who complained on the state of condition of sheep and cattle that had been exported to Qatar. Most of the sheep that had been exported for breeding purposes had died and majority of the cattle had malnutrition with some even calving immediately they reached Qatar. The group accused the live exporters of negligence of Australian animals. As a result, they are demanding for stricter laws. They state that the countries that export must comply with the standards of caring for live animals put in place in Australia. They even suggested that no breeding animal should be exported unless the nation they are being taken to are able to look after them (RSPCA, n.d.a).
Though the government has come up with regulations and standards that must be adhered to, cases of mistreatment are still occurring. Moreover, the government has tried partnerships with the trading partners but it has not still reduced cases of neglect. Due the pressure of animal’s rights groups and other movements the government is planning introduce regulation and standards even up to the countries that import the animals. Australia is proposing three things in order to reduce incidences like that of Qatar. The first’s proposal involves restricting all live exports to countries that do not adhere to their standards and regulation. Secondly, they are proposing a ban on exporting live cattle and sheep except those used for breeding purposes. Export permits will be issued with discretions. Thirdly, permits were only to be given to countries that have a system that values the rights of live animals. However, these proposals have not gone well with export industries and the trade partners (RSPCA, n.d.b). Therefore, this paper is going to assess whether these proposals are in line with Australia’s obligations under the GATT and whether the Australian government may use any of the exceptions in Article XX to successfully defend the measure.
Proposals Consistency with Australia’s Obligations under the GATT
Several people especially live exporters and importing countries have argued that the proposals presented by the Australian government are not consistent with GATT rules and regulations. According to research the proposals are not consistent with Australia’s obligations under the GATT (RSPCA, 2011).
In order to give a detailed argument a deep understanding of Australia’s obligation on the GATT is needed. GATT came into place in 1947. GATT which is called the “General Agreement on Tariffs and Trade is the main international agreement governing the development and conduct of international trade in goods” (RSPCA, 2011, 1). In GATT there are regulations that deal with different barriers to trade. These regulations are commonly called the WTO rules. As a member State of GATT, Australia is obligated to follow the prohibitions provided by it. Therefore, Australia is bound to several prohibitions, for example, Article XI promotes the concept of promoting free trade among countries. So, this article restricts non-tariff country restrictions of international trade (GATT 1994, n.d.). Article XI encompasses imports and exports. This articles says that
[n]o prohibitions or restrictionsshall be instituted or maintained by any contracting party on the importation of any product of the territory of any other contracting party or on the exportation or sale for export of any product destined for the territory of any other contracting party (RSPCA, 2011, 2).
Basing on this article that states no restrictions should be made by the State on imports and exports, the first and the second proposal by Australia will not be consistent with the obligations of the country by GATT. Australia is restricted from initiating any restrictions on export of live animals. They are prohibited from banning exports of live animals (RSPCA, 2011).
Moreover, their proposals that importing countries need to put Australia’s measures, for example, animals should be stunned before they are slaughtered is a direct breach of this article. However, the proposal that animals should be stunned before slaughter would be in contradiction of this Article only if there is a practical of the regulation on trade. An example is that if the regulation of stunning do not interfere with trade then likelihood of being in breach with article XI is very low. However, if the regulation has an effect on the way trade is carried out then the regulation will be in breach of the article. In such a circumstance affected countries are likely to file complaints to the World Trade Organization (RSPCA, 2011a; Australia, n.d.).
The labeling laws that have been proposed by the Australian government may also be against the countries obligation in GATT. Studies reveal that this law may be in contradiction with Article XI. However, this can only be the case if the laws affects the ability of the trading partners to access the live animals (RSPCA, 2011b).
Other than Article XI, Australia is obligated by GATT to adhere to Articles I and III. Article one requires that countries should treat all their trading partners equally. The article provides that
Any advantage, favour, privilege or immunity granted by any contracting party to any product originating in or destined for any other country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other contracting parties (RSPCA, 2011, 3)
Article III, on the hand, requires Australia, as a member state, to treat all the goods equally. Therefore, according to these articles Australia is required to apply the ban on live animals on all the trading partners. In addition, the banning should not only be applied to sheep and cattle alone but also on other live animals. Thus, according to these articles the proposals were not consistent with Australia’s obligations the GATT (RSPCA, 2011; World Trade Organization, n.d.). However, for these articles to be used there must be a determination of the likeness of the products (Stevenson, 2002; Charnovitz, 2002; GATT 1947, 2013).
Therefore, if the proposals were to be assessed according to Australia’s obligation under GATT then they would not be consistent with it. The second proposal states that there will be a ban on all live cattle and sheep with the exception of animals for breeding purposes or dairy production. This proposal is in breach of Article I. Thus, the proposals are not consistent with Australia’s obligations under GATT. However, despite this, there are exceptions that Australia may use to successfully defend the measures or proposals (Stevenson, 2002; Thomas, 2007).
Whether the Australian Government May Use Any of the Exceptions in Article XX to Successfully Defend the Measure
Though GATT has provisions that restrict the proposals presented by Australia of live export trade, Article XX provides exceptions. The exceptions that are in line with live animals exports are the ones that deal with animal health and public morals. Public morals exceptions give an avenue to the government to give explanation for the proposals. However, the exceptions in this article may not be used by Australia to defend the measures they have put. The first reason as to why they cannot use this is that the provision provided by Article XX on animal health only applies to animals that are within the country. The part b of this article only protects the welfare of animals within Australia and not in countries like Qatar. Therefore, even if Australia may want to protect the exported animal’s welfare, they cannot rely on this provision since it only applies to Australia alone (Stevenson, 2002; GATT 1994b, n.d.).
Secondly, it is not clear as to when the term animal health will be included in animal welfare. When this exception was first put in place it was intended to protect the animals from diseases. Though animal health is an important concept on welfare, the welfare cannot reciprocate and give the same meaning. Therefore, substantial evidence on welfare is needed while describing it in terms of animal health (Eaton, Bourgeois & Achterbosch, 2005).
However, unlike the animal welfare exception the public moral can protect the measures presented by Australia. This is because public morals are not restricted to the countries boundaries. So long as the activities of a certain country deem to be immoral with its trading partner, then the affected country may disassociate themselves by coming up with measures (Nielsen, 2007; Fitzgerald, 2011). However, the country carrying out the immoral acts should be first consulted (Vranes, 2009).
While trying to protect the welfare of exported live animals Australia came up with three proposals that involved restrictions and bans. These restrictions and bans did not go well with the trading partners and exporters. As a result, they questioned if the proposals were consistent with Australia’s obligation under GATT. According to extensive research the proposals were not consistent with the countries obligation. Article XX which was to provide exceptions only did so under the public morals. The exceptions on animal’s welfare had two limitations namely the broad definition of animal health in animal welfare and the fact that this provision can only apply within the boundary of Australia.
Australia. (n.d.). Schedule I - Australia. Web. 10 April, 2013http://www.dfat.gov.au/trade/negotiations/schedule/schedule.pdf
Bown, C.P. (2011). Why Are Safeguards under the WTO So Unpopular? Web. 10 April, 2013 http://people.brandeis.edu/~cbown/papers/wtr_safeguards.pdf
Charnovitz, S. (2002). The Law of Environmental “Ppms” In the WTO: Debunking the Myth Of Illegality. Yale Journal of International Law, 27, 59-110.
Eaton, D., Bourgeois, J. & Achterbosch, T. (2005). Product Differentiation Under The WTO: An Analysis Of Labeling And Tariffs Or Tax Measures Concerning Farm Animal Welfare, Agricultural Economics Research Institute, The Hague, The Netherlands. Web. 10 April, 2013ageconsearch.umn.edu/bitstream/29123/1/re050611.pdf
Fitzgerald, P.L. (2011). “Morality” May Not Be Enough to Justify the EU Seal Product Ban: Animal Welfare Meets International Trade Law. Journal of International Wildlife Law and Policy, 14(2), 85-136.
GATT 1947. (2013). The General Agreement on Tariffs and Trade (GATT 1947). Web. 10 April, 2013 http://www.wto.org/english/docs_e/legal_e/gatt47_01_e.htm
GATT 1994. (n.d.). Four main rules of GATT. Web. 10 April, 2013 http://www.jurisint.org/pub/06/en/doc/C02.pdf
GATT 1994b. (n.d.). General Agreement on Tariffs and Trade 1994. General Agreement on Tariffs and Trade 1994. Web. 10 April, 2013 https://www.wto.org/english/docs_e/legal_e/06-gatt_e.htm
RSPCA. (2011). WTO Rules and Animal Welfare. Pdf
RSPCA. (n.d.). RSPCA demands protection for Australia’s ‘Forgotten Animals’. Web. 10 April, 2013 http://www.rspca.org.au/news/rspca-demands-protection-for-australia-forgotten-animals.html
RSPCCA. (2011b). Do the Rules of tWorld Trade Organization Affect Our Animal Welfare Laws? Web. 10 April, 2013 http://kb.rspca.org.au/Do-the-rules-of-the-World-Trade-Organisation-affect-our-animal-welfare-laws_498.html
Stevenson, P. (2002). The World Trade Organization Rules: A Legal Analysis Of Their Adverse Impact On Animal Welfare. Animal Law, 8, 107-142.
World Trade Organization. (n.d.). The Law and Policy of the World Trade Organization. Web. 10 April, 2013 http://phase1.nccr-trade.org/images/stories/mira/WTO%20-%20Chapter%204_non-discrimination.pdf