TY - JOUR
AU - Gascoigne, Catherine E
AB - Abstract In the absence of coordinated multilateral action, many countries seek to address environmental harm occurring in foreign jurisdictions by introducing measures that regulate the importation of certain products. In Australia, the Illegal Logging Prohibition Act 2012 (Cth) and the Illegal Logging Prohibition Regulation 2012 (Cth) prohibit the import of timber that has been harvested in a manner that is contrary to the laws of the harvesting country. One unsettled question is whether the measure is inconsistent with the law of the World Trade Organization. This article considers this question ahead of the Commonwealth Government’s 10-year review of the Measure. To this end, the article examines the consistency of the Act with the General Agreement on Tariffs and Trade and the Agreement on Technical Barriers to Trade. The findings of the article are relevant to Australia and to other countries that design and implement measures to regulate the importation of products for environmental objectives. 1. INTRODUCTION Illegal logging is a global phenomenon that not only causes significant environmental damage in the countries in which it occurs, but also has material social and economic implications for those countries. The most obvious and ideal policy response to illegal logging would involve countries addressing the problem at its source, particularly given that 85% of illegally logged timber is consumed in the country in which it is harvested.1 Up until this point, however, calls to conclude an international treaty to address the problem have failed to come to fruition.2 Given that 15% of illegal timber is imported, there is some scope for other countries to regulate the import of illegal timber into their borders. Australia is one such country. One of the challenges with attempting to regulate illegal logging beyond jurisdictional borders is that Australia is only entitled to do so in a manner that is consistent with its commitments under World Trade Organization (WTO) law. That is, Australia is a member of the WTO and a party to the agreements that apply to aspects of the Measure—namely, the General Agreement on Tariffs and Trade (GATT 1994)3 and the Agreement on Technical Barriers to Trade (TBT Agreement).4 Therefore, the legality of the Measure is contingent on its consistency with WTO law. Shortly after the introduction of the Illegal Logging Prohibition Bill 2012 (the Bill), two opinions were published about the likely consistency of the Bill with WTO law. The first was by Andrew Mitchell and Glyn Ayres,5 which found that it was ‘likely’ that the Bill would be held to be inconsistent with WTO law.6 The second opinion, by Ben Saul and Tim Stephens, was more equivocal as to the consistency of the Bill with WTO law.7 It ultimately concluded that such consistency would ‘depend to an extent on the quantification of certain unclear costs and benefits under the scheme, as well as the nature of implementing regulations yet to be enacted’.8 It is timely to revisit some of the analysis in these earlier opinions for several reasons. First, and most obviously, the Australian Government has announced that it will carry out a review of the Illegal Logging Prohibition Act 2012 (Cth) (the Act) and the Illegal Logging Prohibition Regulation 2012 (the Regulation) (collectively, the Measure) in late 2021. To that end, one of the unsettled questions about the Measure is its consistency with WTO law.9 It is hoped that this opinion can help to inform the Australian Government’s review of the Act. Secondly, this opinion, unlike the earlier ones, has the advantage of taking into account: (1) the operation of the Regulation, which was unavailable at the time that the earlier opinions were written; (2) data that are now available regarding the efficacy of the Act;10 and (3) the Appellate Body (AB) Report, EC—Seal Products,11 which was published after the earlier opinions and bears substantially on the question of the consistency of the Act with WTO law. Additionally, subsequent to those opinions becoming published, Australia has become a party to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CP-TPP). The environmental chapter of the CP-TPP explicitly aims to ‘promote high levels of environmental protection and effective enforcement of environmental laws’12 and affirms ‘the importance of combating the illegal tak[ing] of, and illegal trade in, wild fauna and flora’.13 All of the parties to the CP-TPP14 are also producers of timber to Australia,15 and thus the objectives of the Measure are relevant to all of the trading partners. Thirdly, this article takes issue with some of the analysis in the earlier legal opinions, particularly concerning Article I: 1, Article III: 1, Article XI: 1 and the chapeau analysis in Article XX of GATT 1994. The article puts forward some alternative legal arguments in relation to these articles, which leads it ultimately to a different conclusion. The article begins by briefly setting out the policy and regulatory context of the Measure before turning to consider the likely consistency of the Measure with the GATT 1994 and the TBT Agreement. This article argues that, on balance, the Measure is likely to be found to be consistent with Article I: 1, Article III: 1 and Article XI: 1 of the GATT 1994. It argues that, even if the Measure is found to be inconsistent with these provisions, such inconsistency is likely to be justified under Article XX (b) and/or (g) of the GATT 1994. The article concludes that the TBT Agreement is inapplicable to the Measure. 2. POLICY AND REGULATORY BACKGROUND TO THE MEASURE Illegal logging has a range of environmental, social and economic effects. Taking each of these impacts in turn, the environmental damage caused by illegal logging includes damage to the natural habitats of local fauna, loss of biological diversity, soil erosion, increase in landslides and loss of carbon stocks. The negative environmental effects of deforestation are not only felt in the source country, but also worldwide, in the sense that 17% of total global carbon emissions are estimated to have come from deforestation.16 Illegal logging has also been linked to the human rights abuses of local communities and their culture17 as well as the development of transnational organised crime groups and money-laundering operations, bribery and corruption.18 Finally, illegal logging can also have devastating economic effects, including lost profits, royalties and taxes.19 For example, the Africa Progress Report estimates that Africa alone loses US$17 billion per year in lost exports and taxes due to the illegal harvesting of timber.20 Given the degree of devastation caused by the phenomenon, a number of region-specific initiatives have been put in place to address illegal logging. These include the United Nations Programme on Reducing Emissions from Deforestation and Forest Degradation (UN-REDD Programme), which is a collaborative programme of the Food and Agriculture Organization of the United Nations, the United Nations Development Programme and the United Nations Environment Programme.21 Moreover, the Forest Carbon Partnership Facility works with 47 developing countries across Africa, Asia, Latin America and the Caribbean to reduce deforestation and forest degradation.22 The European Union’s (EU) Forest Law Enforcement, Governance and Trade (FLEGT) Facility, implemented in 2003, also supports the implementation of the EU FLEGT Action Plan, which targets illegal logging by strengthening forest governance and sustainable economic development in countries that export timber to the EU.23 Furthermore, the United States (US) amended the Lacey Act in 2008 to make it unlawful to import, export, transport, sell, receive, acquire or purchase any plant traded in violation of the laws of the US, a US State or foreign laws.24 It is in this international regulatory context that Australia passed the Measure. The Measure prohibits a person from importing25 or processing timber26 or timber products that were harvested in a manner that contravened the laws of the jurisdiction where the timber was harvested.27 Persons importing and processing timber and timber products are required by the Measure to conduct due diligence in relation to the imported timber or timber products, with failure to do so potentially resulting in criminal or civil penalties.28 The Act was passed by both Houses of Parliament on 19 November 2012 and received assent on 28 November 2012. The policy objective of the Act is stated in the Explanatory Memorandum (EM) as being ‘to reduce the harmful environmental, social and economic impacts of illegal logging by restricting the importation and sale of illegally logged timber products in Australia’.29 The EM also states that the problem to which the Measure responds is the impact of illegal logging on ‘forest degradation, climate change, habitat loss and community livelihoods in developing timber producing countries’.30 In this sense, additional policy objectives can be implied into the Measure—namely, mitigating climate change as well maintaining biodiversity and carbon stocks. 3. GATT COMMITMENTS 3.1 Article I of the GATT 1994 The first provision to consider when assessing the consistency of the Measure with WTO law is Article I: 1 of the GATT 1994. This obligation, known as the Most Favoured Nation (MFN) principle, involves considering: (i) whether the measure creates an ‘advantage’; and (ii) whether the advantage is not accorded ‘immediately and unconditionally’ to all ‘like products’. Turning to the first element, an ‘advantage’ in the context of MFN means any advantage that creates ‘“more favourable import opportunities” or affect[s] the commercial relationship between products of different origins’.31 The AB in EC—Seal Products explained that the main objective of Article I: 1 is to ‘protect[ ] expectations of equal competitive opportunities for like imported products from all Members32 … it is for this reason that an inconsistency with Article I:1 is not contingent upon the actual trade effects of a measure’.33 The term, ‘illegally logged’ under the Act, ‘in relation to timber, means harvested in contravention of laws in force in the place (whether or not in Australia) where the timber was harvested’.34 Accordingly, the legality of the timber is contingent on the laws of the harvesting country. Mitchell and Ayres claim that tying the legality of timber to the laws of the harvesting country potentially advantages those countries that have more lax laws, thereby breaching Article I: 1.35 An alternative view to Mitchell and Ayres’ view is that the Measure does not differentiate between producers of timber at all. Instead, it treats all producers in a uniform fashion and any advantage that results to a Member is a result of that Member’s regulatory choices. Howse and Regan argue that process-based measures are not extraterritorial, since they ‘do not directly regulate any behaviour occurring outside the border’.36 More nuanced, Ankersmit, Lawrence and Davies argue that, because PPM measures ‘incentivize, but do not mandate, certain behavior in other states, it is not clear to what extent these types of measures should be considered truly “extraterritorial.”’37 Bartels argues that the question of ‘extraterritoriality’ is about the intent of the measure—that is, whether the measure ‘has an impermissible practical effect on persons abroad’.38 It is unlikely that the Measure could be said to have the effect of conferring an advantage to some Members over others, because the Measure requires nothing more than that Members comply with their own local laws. In this sense, the Measure could not be said to have ‘an impermissible practical effect’ on producer countries, because any differentiation in the effect of the Measure on the producers of timber arises from the regulatory choices of Members, over which the Measure exerts no influence. Accordingly, the Measure may be distinguished from the measures at issue in Canada—Autos39 and EC—Bananas.40 That is, Canada—Autos concerned a measure that entitled motor vehicles imported by certain companies to receive import duty exemptions as long as they met designated criteria. Similarly, in EC—Bananas, the measure was applied to some Members but not to others, thus conferring an advantage to some Members. Conversely, the Measure that is the subject of this article applies in a uniform manner to all Members. Accordingly, it is unlikely that the Measure could be said to have a de facto discriminatory effect, contrary to Article I: 1 GATT 1994. On balance, then, the better view is that the Measure does not confer an advantage to Members, and therefore is not in breach of Article I: 1. For completeness, this article will nonetheless turn to consider the next question, which is whether timber that is harvested in a country with more lax environmental laws is ‘like’ timber that is harvested in a country with stricter environmental laws. In US—Poultry (China), the Panel said that, in terms of an Article I: 1 analysis, ‘when origin is the sole criterion distinguishing the products, it has been sufficient for a complainant to demonstrate that there can or will be domestic and imported products that are “like”’.41 Accordingly, if a country could show that its product is identical to another country’s in all respects except origin, then this is sufficient to show ‘likeness’. There is a small possibility that Australia could rebut the notion of ‘likeness’ by observing that the otherwise identical timber products can be differentiated by their non-product related process and production methods (PPMs). PPMs have been defined as ‘the way in which products are manufactured or processed and natural resources extracted or harvested’.42 WTO law contains very few specific rules applying to PPM measures. They remain a controversial proposition, but are not prohibited per se.43 Several academics have argued that the focus on the consumers’ perspective in defining ‘like product’ means that products with different PPMs could be regarded as not ‘like’ if consumers do not treat them as ‘like’.44 If this is true, and Australia could bring clear evidence that consumers prefer legally harvested timber to illegally harvested timber, it may be able to argue that the timber products are not ‘like’, and therefore, that Article I: 1 is inapplicable. The AB in Philippines—Taxes on Distilled Spirits, however, in relation to Article III: 2 cast doubt on the idea that products viewed differently by consumers necessarily rendered them not ‘like’.45 On balance, then, it is unlikely that Australia would be able to argue this successfully. In sum, whilst it is likely that a complaining Member would succeed in satisfying the ‘likeness’ criterion of Article I: 1, it seems unlikely that a Member would be successful in demonstrating that the Measure confers an advantage to one Member over another. Accordingly, it is unlikely that that complaining Member would succeed in bringing a claim under Article I: 1 of the GATT 1994. 3.2 Article III of the GATT 1994 The next provision to consider when assessing the consistency of the Measure with WTO law is the National Treatment principle (Article III). The Measure requires a person to perform due diligence at the point of importing or processing timber products.46 Ad Article III provides that any requirement that is ‘enforced in the case of the imported product at the time or point of importation’ is to be regarded as an internal requirement, and is accordingly subject to the provisions of Article III. Therefore, the requirement to perform due diligence on the timber products at the border falls within the ambit of the National Treatment provisions. For the purposes of the Measure, the relevant provision that requires consideration is Article III: 4. To that end, the first question is whether the Measure applies differently to ‘like’ products—namely, Australian domestic timber products and ‘like’ foreign timber products that have been imported into Australia. The panel in India—Autos has said that, when origin is the sole distinguishing criterion between the products, it is correct to treat products as ‘like’ within the meaning of Article III: 4.47 This approach has subsequently been followed by a number of other panels.48 In sum, a complaining country could prove that its timber product is ‘like’ an Australian timber product if it can demonstrate that the product is identical, except in origin. As discussed in relation to Article I: 1, there is a slight possibility that Australia could argue that its timber product is not ‘like’ a foreign timber product by raising the argument of PPMs. The AB in EC—Asbestos found that consumers’ tastes and habits can influence whether two products are considered ‘like’;49 but the AB in Philippines—Distilled Spirits has also cast doubt on this.50 On balance, then, it is unlikely that Australia could bring an argument based on PPMs. The second question is whether imported timber products are given ‘less favourable treatment’ than domestic timber products. The AB in EC—Asbestos said that ‘less favourable treatment’ occurs when there is ‘“protection” of the group of “like” domestic products’.51 Although imported timber products must undertake due diligence at the time of importation, once they enter the Australian market, they are not accorded different treatment to domestic timber products. Accordingly, the Measure does not operate so as to ‘protect’ domestic timber products vis-à-vis imported timber products. The AB in Dominican Republic—Cigarettes said that the fundamental question in relation to analysis under Article III: 4 is ‘whether the measure at issue modifies the conditions of competition in the relevant market to the detriment of imported products’.52 As the Measure does not differentiate between domestic and imported timber products or accord them different treatment, it cannot be said that the Measure modifies the conditions of competition between the products. Mitchell and Ayres conclude that it is likely that the Bill accords ‘less favourable treatment’ to ‘like’ imported products, contrary to Article III: 4.53 This is based on the fact that ‘[o]ne of the explicit purposes of the Bill is to modify the conditions of competition in the Australian market so that domestic production is not in “unfair competition” with illegally logged imports’.54 Mitchell and Ayres then cite the AB in Korea—Beef as holding that ‘less favourable treatment’ in Art III: 4 means that the measure at issue ‘modifies the conditions of competition’ in favour of domestic production.55 Mitchell and Ayres’ analysis is arguably flawed here. Specifically, they appear to be confusing the operation of the MFN principle with the National Treatment principle. That is, Article III: 4 regulates the competitive relationship between timber products once they are in the Australian market. As such, the impact of the Measure is arguably not analogous to the factual matrix of Korea—Beef, which was concerned with the treatment of foreign vis-à-vis domestic beef once the foreign beef had entered into the Korean domestic market. Under the Measure, however, illegally harvested timber is prohibited from being imported into, or processed in, the Australian market. This means that illegal timber does not enter into a competitive relationship with Australian domestic timber, thus making Article III: 4 inapplicable. In sum, whilst a complainant is likely to succeed in demonstrating that imported timber products are ‘like’ Australian timber products, it is unlikely to be able to succeed in demonstrating that imported timber products receive treatment that is ‘less favourable’ to domestic timber products. As such, a complainant is unlikely to be successful in bringing a claim under Article III: 4 of the GATT. 3.3 Article XI: 1 of the GATT 1994 Article XI: 1 provides: No prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licences or other measures, shall 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. The Measure makes it an offence for a person to import illegally logged timber56 and to fail to comply with due diligence requirements.57 The Measure does not impose a de jure limitation, in the nature of a direct ban. On one view, the Measure might be construed as a de facto ‘prohibition[] or restriction[]’ within the meaning of Article XI: 1, in the sense that it has the effect of restricting imports that do not comply with local laws.58 Specifically, the Measure imposes civil and criminal penalties on those who import timber, subject to certain criteria.59 On another view, the Measure does not restrict the quantity of timber products entering Australia. Instead, it merely seeks to guarantee the quality of those timber products by ensuring nothing more than that the timber complies with the local laws of its jurisdiction. Although the Measure does impose penalties for importing timber under some circumstances, this condition is not intended to restrict timber from being imported. Instead, it is solely to ensure that the timber was harvested legally. Accordingly, the Measure may be distinguished from the measure in US—Shrimp, where the US violated Article XI by imposing an import ban on shrimp and shrimp products that were not harvested in a manner that was certified by US authorities.60 It may also be distinguished from Brazil—Retreaded Tyres, where the Panel held that a direct import ban and penalties intended to secure compliance with that ban violated Article XI: 1,61 because, in this case, there is no direct import ban in place. The panel in India—Autos found that the ultimate determinant of whether a Measure is inconsistent with Article XI is whether the conditions make the importation ‘more onerous than if the condition had not existed, thus generating a disincentive to import’.62 There is no evidence that the due diligence requirements have actually caused Australia to import lesser quantities of timber from other Members. Thus, the better view is that it is unlikely that the Measure is inconsistent with Article XI: 1 of the GATT 1994. 4. EXCEPTIONS TO THE GATT 1994 Based on the foregoing analysis, it is unlikely that the Measure contravenes WTO law. In the event that it does, however, the GATT 1994 provides a series of exceptions, where a Member can show that its measure: (i) falls within a recognised category of exception and (ii) satisfies the requirements of the opening language of that article (known as the ‘chapeau’). The next question, then, is whether the Measure could be justified under Article XX. In considering the availability of an exception, it is important, first, to assess whether the measure in question fits within the individual paragraphs of Article XX before proceeding to examine whether they satisfy the requirements of the chapeau.63 The individual paragraphs of Article XX that will be considered below are: Article XX(a), (b) and (g). Before turning to examine each of these individual paragraphs, it is important to consider the meaning of ‘necessary’ for the purposes of Articles XX(a) and (b). In Korea—Beef, the AB stated that the meaning of ‘necessary’ falls on a continuum between ‘making a contribution to’ and being ‘indispensable’ to that objective, and it is closer to ‘indispensable’.64 A threshold issue for Australia is that the Measure is designed to have most environmental impact in the countries from which it exports, rather than within Australia itself. There is some early jurisprudence that held that measures could not satisfy the requirements of Article XX because they were aimed at problems outside their own jurisdiction, and therefore could not be described as ‘necessary’ for that country.65 In US—Shrimp, the AB found that it would not ‘pass upon the question of whether there is an implied jurisdictional limitation for Article XX(g), and if so, the nature or extent of that limitation’.66 The AB went on to find that in the present case before it, there was ‘a sufficient nexus between the migratory and endangered marine populations involved and the US for purposes of Article XX(g)’.67 Similarly, in EC—Seal Products, the AB did not pronounce on the question of whether there was an implied jurisdictional limitation to Article XX(a).68 It said, simply, that ‘the EU Seal Regime is designed to address seal hunting activities occurring “within and outside the Community” and the seal welfare concerns of “citizens and consumers” in EU member States’.69 Nonetheless, a number of commentators have suggested how to interpret the requirement of an implied jurisdictional limitation. Van den Bossche, Schrijver and Faber suggest that the ‘nexus’ is physical in nature. They argue that a nexus ‘definitely exists’ when the measure concerns unincorporated PPMs affecting a global situation (eg, climate change) and ‘may also exist’ when the measure concerns a transboundary situation (eg, air or water pollution across national borders).70 Charnovitz, on the other hand, draws a distinction between ‘trade measures used to protect the morals of foreigners residing outside one’s own country’ (‘outwardly directed’ trade remedies) vis-à-vis trade measures used to protect the morals of persons in one’s own country’ (‘inwardly directed’ trade measures),71 arguing that the latter are likely to be held to be appropriate, whilst the former are likely to be prohibited.72 Dobson opines that panels and the AB should draw on ‘the customary international law of state jurisdiction as a lex generalis for the jurisdictional analysis’.73 Taking Van den Bossche, Schrijver and Faber’s argument first, Australia could claim a physical nexus with the producer countries because, though the timber is logged in the producer countries, the impact on the atmosphere and biodiversity is felt by Australia (and by the rest of the world)—indeed, the interconnectedness of the planet has been recognised in a Resolution adopted by the General Assembly.74 Turning to Charnovitz’s point, Australia could argue that climate change is an important moral principle for its residents, and that the Measure is an inwardly directed trade measure. Some evidence for the idea that climate change mitigation is a moral principle for Australians can be found in the discussion of Article XX(a) below; but the section concludes that, on balance, it is unlikely that Australia could successfully argue that climate change is a moral principle for Australians, given its lack of meaningful political action. Finally, the nexus between a trade measure and the objective of mitigating climate change is ‘ever easier to demonstrate’, especially in view of the UNFCCC and the range of legal obligations to avert the harmful effects of climate change.75 Specifically, the increasing number of legal instruments and governmental and private sector responsibilities to trade in sustainably sourced commodities for climate mitigation purposes76 would assist in arguing that such efforts were consistent with customary international law, thus satisfying Dobson’s criterion. On balance, then, Australia is likely to be able to satisfy Van den Bossche, Scrijver and Faber’s as well as Dobson’s criteria of implied jurisdictional limitation, though it may not satisfy Charnovitz’s criteria, given the discussion below. 4.1 Article XX(a) Australia could possibly raise a defence to any violation of the GATT 1994 by raising Article XX(a)—namely, that the Measure is ‘necessary to protect public morals’. The Panel defined the term ‘public morals’ in US—Gambling as denoting ‘standards of right and wrong conduct maintained by or on behalf of a community or nation’.77 The panel in the same case went on to say that ‘the content of these concepts for Members can vary in time and space, depending upon a range of factors, including prevailing social, cultural, ethical and religious values’.78 In EC—Seal Products, the AB held that Members must be given some scope to define and apply the concept of public morals for themselves according to their own value system, and therefore, a panel is not required to identify the exact content of the public morals standard at issue.79 Importantly, however, a responding party must still establish that the alleged public policy objective relates to a public moral objective according to its value system.80 Suttle observes, then, that ‘public morals’ in relation to Article XX(a) may be understood in terms of a Member’s self-determination.81 That is, interpreting public morals involves ‘being sensitive to the particular structure of the moral justifications that states offer in particular cases, to determine which aspect they fall under, and the kinds of limits this implies’.82 Australia would therefore need to demonstrate that curbing deforestation in harvesting countries related to a public moral objective that was important to its value system. To demonstrate its commitment to sustainable forestry and the mitigation of climate change, Australia could point to the level of public support for climate action—such as a recent national survey that showed that 60% of Australians agree that climate change is ‘a serious problem and immediate action is necessary’, while 24% of Australians agree that climate change is taking place and ‘some action’ should be taken.83 Some of the statements made in the EM to the Measure are also indicative of the moral imperative placed on sustainable forestry and biodiversity and climate change. For example, the EM says that: Taking action on illegal logging may also complement other Australian policy priorities such as climate change mitigation, reducing money laundering and alleviating the social costs of corrupt practices in developing countries.84 In stronger language, former Australian Prime Minister, Kevin Rudd, said in a public speech that climate change is ‘the greatest moral, economic and social challenge of our time’.85 On the other hand, Australian governments have consistently failed to implement meaningful policies to combat climate change. A review of climate change policy over the last decade reveals a lack of leadership with respect to devising solutions at the national level.86 Australia had a carbon pricing mechanism from 2012 to 2014,87 but this was repealed and other attempts to create a national climate or energy statute have been unsuccessful.88 Moreover, the Environment Protection and Biodiversity Conservation Act 1999 (Cth), which is the most significant piece of environmental legislation for implementing Australia’s foreign environmental protection commitments, does not mention climate change. Furthermore, Australia’s per-capita footprint is inequitably high89 and Australia is the second largest exporter of coal in the world by weight, and the largest exporter in terms of economic value.90 On balance, then, given Australia’s lack of political action in curbing climate change, it will be difficult for Australia to argue that curbing deforestation and action on climate change related to a ‘public moral’ within the remit of Article XX(a). Nonetheless, if Australia could successfully argue this, it would then need to demonstrate that the Measure was ‘designed’ to protect public morals. This involves an initial investigation as to the relationship between the Measure and the protection of public morals.91 The AB found in Colombia—Textiles that, if ‘the measure is not incapable of protecting public morals, this indicates the existence of a relationship between the measure and the protection of public morals’.92 The EM explains that the objective of the Act is ‘to reduce the harmful environmental, social and economic impacts of illegal logging’.93 It further explains that: For many years illegal logging has been recognised as a significant global problem due to its impacts on forest degradation, climate change, habitat loss and community livelihoods in developing timber producing countries. ….94 In this sense, the objectives of the Measure are linked not only to curbing global environmental problems but also to its socio-economic effects, including loss of habitat and community. Next, Australia must show that the Measure is ‘necessary’ to protect public morals. To do so, it must first demonstrate that the policy objective of the Measure is important. The AB has said that the more ‘vital or important the interests or values that are reflected in the objective of the measure, the easier it would be to accept a measure as “necessary”’.95 In EC—Seal Products, the panel stated that the moral concern with regard to the protection of animals is regarded as ‘a value of high importance’.96 Similarly, in US—Gambling, the protection against online gambling was also considered to be ‘vital and important in the highest degree’.97 The Measure is designed to protect the public moral of preserving forests, habitats and community livelihoods. It is suggested that the objective is likely to be found to be more important than protection against online gambling and at least as important as the protection of animals. Therefore, it is very likely that the objective of the Act will be found to be of high importance. Secondly, regard must be had to the degree of contribution that the Act has made to achieve the policy objective. To this end, ‘[t]he greater the contribution, the more easily a measure might be considered to be “necessary”.’98 The fact that the Measure prohibits illegal products from being imported means that the contribution that the Measure makes to the policy objective must be significantly higher than a measure with a lesser impact on international trade99—that is, the contribution must be ‘material’ or ‘significant’.100 As has been discussed above, the design and operation of the Measure are such that the legality of the timber that may be imported into Australia is contingent on the laws of the harvesting country. As such, it is possible that the Measure could have perverse environmental effects. Specifically, the Measure could actually incentivise harvesting countries to reduce their environmental standards so as to enhance their competitiveness in the market. In this sense, exporting countries may engage in a kind of ‘race to the bottom’.101 If this were found to be the case, the contribution of the Measure to the policy objective would actually be negative, which would have adverse implications for a ‘necessity’ finding. The research, however, does not support the view that countries have lowered their regulatory standards in relation to forestry protection. In particular, the research does not support the view that countries have adopted weaker forestry laws in the wake of the Measure, or indeed, in the wake of the US’ amendments to the Lacey Act or the EU’s adoption of the FLEGT Action Plan. If anything, the research suggests that countries are tightening their forestry laws. In particular, over the last two decades, the World Bank and the EU have worked with Forest Law Enforcement and Governance processes in different parts of the world to provide technical assistance and initiate legislative reform to improve the monitoring of forest activities.102 For example, improved forestry governance has occurred in Cameroon,103 the Democratic Republic of Congo,104 Liberia,105 Tanzania,106 Malaysia,107 Vietnam108 and Indonesia.109 Moreover, in April 2016 the World Bank Group launched a Forest Action Plan for Fiscal Years 2016–20, which works with countries to protect and strengthen forestry governance.110 Furthermore, there has been a trend in recent years to integrate sustainability factors into financial regulatory frameworks as a means of creating compliance with forestry regulation, particularly in Brazil, Colombia, Peru, Indonesia and Malaysia.111 Finally, as was established in the introduction, all of the parties to the CP-TPP are also exporters of timber to Australia. Article 20.3(6) CP-TPP provides that ‘…a Party shall not waive or otherwise derogate from, or offer to waive or otherwise derogate from, its environmental laws in a manner that weakens or reduces the protection afforded in those laws to encourage trade or investment between the Parties’. Therefore, the idea that the Australian Measure (or the US or EU measure) had the perverse effect of encouraging countries to weaken their forestry governance is not borne out by the evidence; and it would also be contrary to the CP-TPP. A second possible perverse effect of the Measure could be that it incentivises importers to select timber from those producer countries with more lax environmental laws, instead of countries with higher environmental standards.112 Given the clandestine nature of illegal logging, it is difficult to collect data about the operation of the Act. Nonetheless, the data collected so far regarding the effect of the Measure on market behaviour indicates that the Measure is driving behavioural change in the direction intended by the Measure.113 Specifically, the data show that the due diligence requirements under the Measure have prompted businesses to change suppliers and even supply regions after being dissatisfied with their due diligence inquiries.114 The AB in Brazil—Retreaded Tyres said that, even where the effectiveness of a measure is uncertain, it might still be ‘necessary’ if the respondent can show it is ‘apt to produce a material contribution to the achievement of its objective’ on the basis of ‘quantitative projections in the future, or qualitative reasoning based on a set of hypotheses that are tested and supported by sufficient evidence’.115 Accordingly, by extrapolating upon the data collected so far, the Measure would seem to be apt to produce a material contribution to curbing illegal logging. Yet another issue with the design of the Measure that would mitigate its contribution to the policy objective is that it is possible that a significant proportion of illegally logged timber will be diverted to other markets.116 While this may be true, it is difficult to make such an assessment a priori, without the benefit of empirical data.117 Trade measures that incentivise countries to reduce environmental externalities may also lead to an increase in ‘global allocative efficiency’ by inducing countries to reduce such externalities.118 This incentive to reduce externalities domestically may also reduce market failures at a more global level by minimising ‘transboundary spillovers’.119 To put it another way, just as it is difficult fully to assess the environmental limitations of the Measure without empirical material, so too is it difficult fully to take account of all of the environmental benefits of the Measure a priori. Indeed, it will be important for the Commonwealth Government to be cognisant of this insight when conducting the review of the Measure. Furthermore, Canada and Norway made a similar argument before the AB in EC—Seal Products, in which they said that the panel had failed to assess whether a reduction in demand for seal products in the EU would actually contribute to a reduction in the number of inhumanely killed seals.120 The AB found, however, that: It was not unreasonable for the Panel to assume that a decrease in demand, and hence a contraction of the seal product market, would have the effect of reducing the number of seals killed, and thus the number of inhumanely killed seals. We therefore see nothing improper in the Panel’s logic when it referred to the effect of the ban as one of ‘reducing the overall demand for seal products within the European Union and consequently the number of seals that may be killed inhumanely in these hunts’.121 In sum, the AB was satisfied that there was a causal link between a measure reducing demand for seal products and the number of seals that would be killed. By analogy, it seems likely that the AB would find that the cumulative effect of the measures introduced by Australia, the EU and the US serve to reduce the amount of illegal logging globally. In addition to the economic and environmental benefits, the Act brings with it social benefits, such as further reducing incentives for corrupt and exploitative systems to propagate in harvesting countries.122 Furthermore, the Measure will contribute to curbing illegally logging, not only directly, through prohibiting illegally logged timber, but also more indirectly, by instigating greater awareness about the excesses of illegal logging in the Asia-Pacific region. Indeed, the EM states that ‘[b]y using its strategic location and influence in the Asia-Pacific region, Australia may leverage greater regional government action on combating illegal logging and associated trade through regional capacity-building and bilateral and multilateral efforts’.123 In light of these economic, social and environmental benefits, it is likely that the contribution of the Measure to its objectives is more than ‘marginal’ or ‘insignificant’. The third factor to consider in assessing the ‘necessity’ of a measure is its trade-restrictiveness. Specifically, a measure with a relatively slight impact on imported products would be more easily considered to be ‘necessary’ than a measure with intense or broader restrictive effects.124 To this end, one factor to consider is that the Measure is drafted in excessively sweeping terms. That is, the Measure prohibits the importation of a ‘thing’ that is ‘made from’ or ‘includes’ ‘illegally logged timber’ and is ‘not prescribed as exempt by the regulations’.125 The phrase ‘illegally logged’ is defined, in turn, as ‘harvested in contravention of laws in force in the place (whether or not in Australia) where the timber was harvested’.126 The broad manner in which it is drafted means that the Act prohibits the importation of timber rendered illegal under all of the harvesting country’s laws—including those laws that are not necessarily environmentally-related.127 In these cases, it is uncertain whether one of the exceptions under Article XX could exempt Australia from the trade-restrictive impacts. Furthermore, to assess the trade-restrictiveness of a measure, another question to be considered is ‘whether there is an alternative measure that would achieve the same end and that is less restrictive of trade …’.128 One alternative to the Measure could be for Australia to impose on its trade partners a uniform standard for how timber must be logged, instead of having a standard that is contingent on the laws of the harvesting state.129 Not only would such an alternative measure make Australia very likely to conflict with the TBT Agreement but it would also be more trade-restrictive than the current Measure. That is, unilaterally imposing a measure on trade partners is analogous to the US’ measure in US—Shrimp.130 In that case, the US unilaterally imposed an import ban on shrimp from its trading partners unless the trading partner’s shrimp was accompanied by a Shrimp Exporters’ Declaration Form.131 One of the reasons that the AB found that the US’ measure did not satisfy the chapeau of Article XX was that it was ‘not acceptable’ for a WTO Member to unilaterally impose its own regulatory program without considering the different conditions that exist in other Members’ territories.132 Therefore, this alternative measure is actually more trade-restrictive than the current measure. Another alternative measure is for Australia to enter into a binding multilateral agreement with its trading partners regarding the management of illegal logging. This would involve Australia’s trading partners committing to policing illegal logging locally and carrying out due diligence to ensure that only timber that had been legally harvested was exported. There are three difficulties with this approach: (1) logistically, it would be extremely difficult to achieve consensus with each of its trading partners; (2) it would necessarily involve imposing administrative requirements on its trading partners—which would be financially and practically burdensome, particularly for developing countries; and (3) the degree of corruption endemic in the forestry industry is well-noted,133 thereby undermining the efficacy and credibility of the scheme. Accordingly, even if Australia’s trading partners were able to commit to a binding agreement, it would be difficult to have total confidence in the integrity of the due diligence system if administered locally. The AB said in US—Gambling and Brazil—Retreaded Tyres that a reasonably available alternative must allow for a Member to achieve the desired level of protection.134 Moreover, the AB held in US—Gambling that: An alternative measure may be found not to be ‘reasonably available’ … where it is merely theoretical in nature, for instance, where the responding Member is not capable of taking it, or where the measure imposes an undue burden on that Member, such as prohibitive costs or substantial technical difficulties.135 Given the three difficulties considered above, it is suggested that this alternative measure is not truly ‘reasonably available’. Therefore, it is suggested that this measure is likely to be found to be not more trade-restrictive than is necessary. On balance, then, it is likely that the Act will be found: (1) to pursue an objective that is important; (2) to make a significant contribution to the objective; and (3) not to be more trade-restrictive than is necessary. Given Australia’s lack of political action on climate change, however, it will be difficult for it to establish, as a threshold matter, that the prevention of deforestation and climate change is a ‘public moral’ that is important to Australia. Accordingly, it seems unlikely that Australia could rely on the exemption under Article XX(a). 4.2 Article XX(b) Another possible exception under which the Measure may be exempted from GATT 1994 disciplines is paragraph XX(b), which provisionally exempts measures that are ‘necessary to protect human, animal or plant life or health’. As set out above, the first question to be asked is whether the Measure falls within the range of policies designed to protect human, animal or plant life or health. The Measure is, at heart, designed to protect plant life in the sense that it prohibits the logging of forests that are intended to be safeguarded by the domestic laws of harvesting countries. The EM states, moreover, that one of the primary objectives of the Act is to minimise ‘[l]oss of ecosystem services (biodiversity)’ and ‘soil and water degradation’.136 Thus, although the Measure does not specifically mention the preservation of animal and plant life, this is implied in the Act’s aim to reduce loss of biodiversity. The EM further mentions that contamination of food and water supply is an undesired by-product of illegal logging;137 and in this sense, the aims of the Measure are also aligned with protecting ‘human … health’. For these reasons, it seems clear that the Measure falls within the range of policies designed to be protected by paragraph Article XX(b). The second question is whether the Measure is ‘necessary’ to fulfil the policy objectives in question. The first question to consider in this regard is the importance of the societal interest or value at stake. In EC—Asbestos, the AB characterised the protection of human life and health against a life-threatening risk as ‘vital and important in the highest degree’.138 Although the more indirect aims of the Act bear upon human health, this is a secondary aim; and, therefore, the Act is not analogous to the measure in EC—Asbestos. The Panel in Brazil—Tyres took note of (but did not expressly rule on) Brazil’s argument that ‘few interests are more ‘vital’ and ‘important’ than protecting human beings from health risks, and that protecting the environment is no less important’.139 Moreover, the first recital to the Marrakesh Agreement Establishing the WTO provides that trade in goods and services is intended to operate ‘while allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development’, which was held to be significant by the AB in US—Shrimp.140 Although probably not ‘vital’, then, it is very likely that the Measure’s aims would be found to be ‘important’. The second and third part of the necessity analysis—namely, the analysis relating to the contribution of the measure to the objective and the trade-restrictiveness of the measure—would be as per the discussion under Article XX(a) above. On balance, it is likely that the Measure could be exempted from the GATT 1994 disciplines under Article XX(b), subject to the chapeau analysis below. 4.3 Article XX(g) Finally, Article XX(g) relates to ‘the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption’. Unlike the exceptions discussed above, Article XX(g) does not require a ‘necessity’ analysis to be performed. That is, Article XX(g) only requires that the measure ‘relates to’ the conservation of exhaustible natural resources…’. The threshold question, then, is whether a law relating to the protection of forests falls within the subject matter of Article XX(g). The AB in US—Shrimp interpreted the term, ‘exhaustible natural resources’ to include living resources, where they are susceptible to depletion.141 Accordingly, it is likely that a Panel or the AB would interpret the term ‘exhaustible natural resources’ to include forests, where evidence could be brought that forests in the challenging Member’s territory were vulnerable to diminution. It is likely that forests in a challenging Member’s territory would be found to be ‘exhaustible natural resources’ if the forests are not renewable forests. In China—Rare Earths, the AB held that, to justify a measure under Article XX(g), a measure must have ‘a close and genuine relationship of ends and means’ to the conservation of exhaustible natural resources.142 The ends of the measure were seen in Section 2 above—namely, ‘to reduce the harmful environmental, social and economic impacts of illegal logging’ and, with respect to the environmental impact—the implicit goals were to reduce forest degradation, mitigate climate change as well as maintain biodiversity and carbon stocks. The Measure achieves these ends by prohibiting the importation of timber harvested in contravention of local laws. On balance, it is suggested that there is ‘a close and genuine relationship of ends and means’ between the objective of the measure and the means by which this is achieved. One qualification to this relates to the issue also raised under Article XX(a) above—namely, that the fact that the Measure is so sweeping in its terms means that the Measure prohibits the importation of timber rendered illegal under all of the harvesting country’s laws—including those laws that are not necessarily environmentally-related.143 Where timber was prohibited from being imported in Australia because it breached a producer country’s law that was not relevant to the environment (eg, employment or occupational, health or safety legislation), there would be an argument that Article XX(g) would not exempt Australia from its GATT 1994 commitments. Finally, the Measure must be ‘made effective in conjunction with restrictions on domestic production or consumption’. The AB said in US—Gasoline that this requirement is one of even-handedness in the imposition of restrictions, not a requirement of identical treatment.144 In this regard, the Measure also imposes requirements on Australian domestic timber processors, in the sense that they have due diligence requirements and are prohibited from processing timber that has been harvested illegally.145 There is no evidence that the Measure operates in a manner that advantages domestic producers vis-à-vis foreign producers. Therefore, it seems that the Measure is even-handed between domestic and foreign producers. For the reasons given above, it is likely that Australia could rely on the exemption under Article XX(g), subject to the analysis under the chapeau below. 4.4 The Chapeau The AB in US—Shrimp said that the language of the chapeau is such that it is clear that the exceptions set out in subparagraphs (a)–(j) are ‘limited and conditional’ on a Member satisfying the conditions of the chapeau.146 These conditions are that the measure should not be applied in a manner that would constitute: (1) a means of ‘arbitrary or unjustifiable discrimination between countries where the same conditions prevail’; or (2) ‘a disguised restriction on international trade’.147 The AB in Brazil—Retreaded Tyres held that ‘arbitrary or unjustifiable discrimination’ means discrimination that either bears ‘no rational connection’ to the objective pursued under the relevant subparagraph of Article XX or actually goes against such an objective.148 The first question, then, is whether the Measure promotes ‘arbitrary or unjustifiable discrimination between countries where the same conditions prevail’. Mitchell and Ayres argued that the discrimination inherent in the Measure is not ‘rationally connected’ to the objectives pursued by subparagraphs XX(b) and XX(g) because harvesting practices with an identical impact on forests, animals and humans would be treated differently.149 The first concern with Mitchell and Ayres’ argument is that the Measure arguably does not discriminate between countries at all. That is, the measure applies in a uniform fashion to all countries, and any discrimination that results is a product of the different regulatory choices of the Members themselves. Secondly, even if the Measure discriminates between countries, such discrimination is not ‘arbitrary’ or ‘unjustifiable’. That is, the AB said in EC—Tariff Preferences that, in some circumstances, discrimination in favour of developing countries could be justified in principle, provided that the nature of the discrimination relates to the existence of a development, financial or trade need that is assessed according to an objective standard.150 A striking feature of Australia’s timber imports is the variety of countries from which the imports come—that is, according to data collected from the World Bank in 2018, Australia imported timber from 133 countries.151 Of these 133 countries, 49 are classified as high income countries, 33 upper-middle, 1 middle income, 33 lower-middle, 12 low and 5 other.152 Given this variety, it is arguable that the discrimination inherent in the variation between the environmental laws of developing countries relates to the existence of different stages of development amongst Australia’s trading partners. Indeed, the AB has said that ‘discrimination results’, inter alia, ‘when the application of the measure at issue does not allow for any inquiry into the appropriateness of the regulatory program for the conditions prevailing in those exporting countries’.153 Accordingly, it is argued that having a Measure that is insensitive to the diverse developmental stages of Australia’s many and varied trading partners is actually discriminatory in a different way. The alternative to the Measure would involve Australia unilaterally implementing a measure that imposed a uniform environmental standard on to its trading partners, with no regard to the particular conditions existing in other countries. This approach would therefore necessarily have a ‘coercive effect’ on its trading partners.154 Such a coercive effect is reminiscent of the US’ measure in US—Shrimp. The AB in that case said: It is not acceptable, in international trade relations, for one WTO Member to use an economic embargo to require other Members to adopt essentially the same comprehensive regulatory program, to achieve a certain policy goal, as that in force within that Member’s territory, without taking into consideration different conditions which may occur in the territories of those other Members.155 Even if the Act is discriminatory, it is suggested that these discriminatory elements are ‘rationally connected’ to the Member’s policy objective. That is, the Act encourages a higher degree of compliance with local environmental laws and promotes a better overall level of environmental protection as compared to a scenario where the Act did not exist. In this sense, the Act is ‘rationally connected’ to protecting public morals (such as, climate change mitigation, sustainable forestry and biodiversity) (Article XX(a)), ‘protect[ing] human, animal or plant life of health’ (Article XX(b)) and ‘conserv[ing] exhaustible natural resources …’ (Article XX(g)). Finally, to satisfy the requirements of the chapeau, Australia needs to show that it has engaged in good faith efforts to negotiate a multilateral agreement in relation to the prohibition of illegal logging before resorting to unilateral action. In both US—Shrimp and EC—Seal Products, the AB made a finding of arbitrary discrimination because the US and EC respectively had failed sufficiently to engage Members in negotiating a multilateral agreement.156 Accordingly, the question is begged whether Australia has made sufficient good faith effort to negotiate a multilateral agreement with its trading partners before resorting to a unilateral measure. Australia has not led any negotiations for a multilateral agreement on the management of illegal logging. Australia did, however, participate in, and contribute to,157 the negotiation of a multilateral agreement in relation to forestry management, which included illegal logging—namely, the Non-Legally Binding Instrument on All Types of Forests on 28 April 2007, which was renamed the United Nations Forest Instrument (UNFI).158 Additionally, Australia has undertaken many efforts to engage with its trading partners with respect to the issue of illegal logging. For example, in 2008, Australia co-hosted a region-led initiative on improving regional input in support of the United Nations Forum on Forests.159 Moreover, Australia has established bilateral relationships with governments in the Asia-Pacific region, including Papua New Guinea, Indonesia, Malaysia, Korea, China and New Zealand, which includes working cooperatively with respect to forestry management.160 From 2007–2014, Australia ran a Forestry Skills and Capacity Building Programme in the Asia-Pacific region,161 in 2012/2013, Australia spent a further $8 million on a Regional Capacity Building Partnership with countries in the Asia-Pacific region,162 and finally, Australia has committed approximately US$5 million per annum to additional capacity building, bilateral cooperation and multilateral engagement with its trading partners.163 Furthermore, the Australian Government has worked with its trading partners to develop ‘country-specific guidelines’ to assist with the due diligence process,164 which demonstrates a commitment to working collaboratively to implement the Measure. Therefore, although Australia has not attempted to negotiate a multilateral agreement, it has demonstrated a significant degree of willingness to engage its trading partners in cooperatively managing forestry and illegal logging issues through capacity building projects and bilateral cooperation. One difficulty for Australia is that its efforts to engage multilaterally have not extended beyond the Asia-Pacific region. There is a potential argument that this is analogous to the way in which the US negotiated with some Members more than others in US—Shrimp165 or the EU’s greater efforts to facilitate access to the Inuit or other indigenous communities exceptions with the Canadian Inuit vis-à-vis the Greenlandic Inuit in EC—Seal Products.166 In US—Shrimp (Article 21.5), the AB clarified that good faith efforts to conclude multilateral agreements need not be identical, nor lead to identical results, but they must involve a comparable level of effort between Members.167 On the other hand, it could also be argued that the present case must be distinguished from US—Shrimp, EC—Seal Products and US—Shrimp (Article 21.5) for two reasons. First, the US—Shrimp case required the US to negotiate with a small number of countries regarding the implementation of a technical device. In EC—Seal Products, the EC was required to negotiate with Canada, Norway, Greenland and countries within the EU (particularly Sweden and Finland) regarding exceptions to the EU Seal Regime. In contrast, the present case would require Australia to negotiate with potentially 133 of its trading partners on an issue as economically, environmentally and socially fraught as illegal logging. To this end, it is worth noting that negotiation of the UNFI took the international community 15 years and included many roadblocks along the way,168 and even then, the outcome was non-binding. Accordingly, it is questionable whether it is realistic that Australia would be able successfully to negotiate a multilateral agreement in relation to illegal logging. Secondly, unlike the measure in US—Shrimp (which involved other Members adopting a technical device) and EC—Seal Products (which involved giving an advantage to one Member over another) the current Measure involves nothing more than that countries comply with their own local laws. That is, other Members are not being required to take on an additional burden, nor are they losing some former advantage. In this sense, there is a strong argument that the facts of the present case are not analogous to those of US—Shrimp and EC—Seal Products; and that, given the number of Members involved and the complexity of the issue, the efforts that Australia has made to engage its trading partners are sufficient. 5. TBT AGREEMENT The article now turns to consider whether the Measure also raises concerns about its consistency with the TBT Agreement. To this end, the first question that must be raised is whether the Measure is a ‘technical regulation’ within the meaning of the TBT Agreement. ‘Technical regulations’ are defined in Annex 1.1 of the TBT Agreement as a ‘[d]ocument which lays down product characteristics or their related processes and production methods, including the applicable administrative provisions, with which compliance is mandatory’.169 The AB has interpreted the meaning of ‘technical regulations’ in EC—Asbestos and EC—Sardines, where they established a three-tier test to assist in determining whether a measure is a ‘technical regulation’, as follows: (1) the products to which the measure applies must be identifiable; (2) the measure must lay down certain characteristics for these products; and (3) the measure must be mandatory.170 The first question, then, is whether the illegal timber to which the Measure applies is identifiable. Section 9 of the Act applies to ‘a regulated timber product’, which is then described in Clause 1 of Schedule 1 in detail—for example, the first item reads ‘wood in the rough, whether or not stripped of bark or sapwood, or roughly squared’. It is likely that such descriptions are sufficiently specific as to satisfy the first element of a ‘technical regulation’. The next question, then, is whether the Measure lays down characteristics of illegal timber.171 The Measure does not lay down any physical characteristics of the product. As the definition of ‘technical regulation’ applies to ‘related processes and production methods’, there is a further possible argument that the Measure lays down ‘product characteristics’ insofar as it prohibits the importation or processing of timber and timber products that have been illegally logged. Applying the AB’s reasoning here, it is unlikely that the Measure’s prohibition on illegal timber has sufficient nexus with the characteristics of the prohibited timber and timber products. That is, the legality of the way in which timber is harvested does not relate to the ‘means of identification, the presentation and the appearance of a product’. Instead, the way in which timber is harvested is contingent on the laws of Australia’s trading partners. Accordingly, because the Measure does not lay down characteristics for these products, it is unlikely to fall within the ambit of the TBT Agreement. For completeness, the Measure is ‘mandatory’, in the sense that the Measure details civil and criminal penalties for non-compliance;172 and, accordingly, the Measure would fulfil the third element of a ‘technical regulation’. Nonetheless, because the Measure is unlikely to be considered a ‘technical regulation’ on account of its omission of ‘product characteristics’, it follows that it is unlikely that the TBT Agreement applies to the Measure. 6. RECOMMENDATIONS This article has argued that, on balance, it is likely that the Measure is compliant with WTO law, and in the alternative, it is likely to be exempted under Articles XX(b) and/or (g) of the GATT 1994. Nonetheless, this section sets out a number of recommendations for amending the Measure, which are relevant for the Australian Government’s review of the legislation. First, it was seen in relation to the discussion under Article XX(a) and XX(g) above, that the Measure defines ‘illegally logged’ in overly broad terms. That is, the phrase ‘illegally logged’ is defined under Section 7 of the Act to mean, ‘harvested in contravention of laws in force in the place (whether or not in Australia) where the timber was harvested’.173 As discussed above, by defining ‘illegally logged’ in this way, the Act prohibits importing timber that was harvested illegally under any of the country’s laws, including laws that have nothing to do with sustainable forestry. For example, even if timber was harvested from a sustainable forest in compliance with local forestry laws, the timber would technically still be illegal to import into Australia if the employer did not comply with local occupational, health and safety measures or pay adequate tax from the profits derived from felling the timber. There could be an argument that the breadth of the definition of ‘illegally logged’ makes the Measure more trade-restrictive than is necessary. It is recommended that the definition of ‘illegally logged’ under Section 7 of the Act be replaced with a new definition approximating the following: ‘harvested in contravention of environmental laws in force in the place (whether or not in Australia) where the timber was harvested’. ‘Environmental law’ might then be defined as: ‘a statute, regulation or code, or provision thereof, including any that implements the country’s obligations under a multilateral environmental agreement, the primary purpose of which is the protection of the environment’. For the avoidance of doubt, ‘environmental law’ does not include a statute, regulation or code, or provision thereof, directly related to tax, employment, worker safety and/or health.174 These amendments would narrow down the definition of ‘illegally logged’ to make clear that it is only local environmental laws that apply to the timber. Accordingly, if the timber is compliant with local environmental laws but non-compliant with other local laws, this would not prevent Australia from importing the timber, thereby minimising the trade-restrictiveness of the Measure. Secondly, it will be important for Australia to continue to collect data showing the efficacy of the Measure. This is because it was seen that it is important under the exceptions to be able to show that the Measure is making an adequate contribution to the policy objective of the Measure. The more data that Australia has on this point, the greater is its likelihood of being able to make out this exception. It is therefore recommended that Australia continue to collect this data by way of surveys approximately every five years. Finally, an important consequence of curbing illegal logging that the Measure omits to deal with is the way in which incentivising the reduction of illegal logging affects indigenous and forest-dwelling communities. The Forest Peoples Programme estimated in 2012 that there are ‘500 million forest-dependent people of which 200 million are indigenous peoples’.175 Additionally, the United Nations Development Programme estimates that ‘approximately 70 million indigenous peoples depend on forests for their livelihoods’.176 The impact of curbing illegal logging on indigenous and forest-dwelling communities is highly context-dependent.177 In some cases, illegal logging is causing their displacement;178 in other cases, indigenous and forest-dwelling communities depend on illegal logging ‘for their livelihoods and for food, shelter and cultural or spiritual sustenance’.179 The importance of respecting indigenous rights is set out in the Paris Agreement180 and the importance of maintaining the indigenous way of life was recognised by the AB as a valid exception to the EU Seal Regime in EC—Seal Products.181 Accordingly, Australia must remain vigilant about the impact of the Measure on its trading partners’ indigenous and forest-dwelling communities. 7. CONCLUSION There is considerable global support for measures that preserve vulnerable forest ecosystems, particularly in view of the role of forests in acting as carbon sinks so as to help forestall catastrophic climate change. Such support has not, however, yet translated into a global binding agreement to regulate illegal logging. Moreover, those countries that are particularly prone to illegal logging are also often plagued with difficulties with enforcing local laws, due to issues with corruption or a weakened rule of law. It is in that context that the Measure was introduced by Australia, with the ultimate aim of ensuring that countries harvest timber in a manner that complies with their local laws. That is, one of the greatest strengths of the Measure is its sensitivity to the diverse developmental needs of Australia’s trading partners. Such sensitivity means, however, that the legality of the harvesting methods used is necessarily contingent on local laws. This article has argued that such sensitivity to local laws is ‘rationally connected’ to any discriminatory effects—namely, respecting the local conditions of Australia’s trading partners. It is now almost ten years since the Australian Government introduced the Measure, and the legal status of the Measure is still contested. This article offers a new legal opinion and concludes that, on balance, the Measure is compliant with WTO law; and, in the alternative, any inconsistency is likely to be justified under Article XX(b) and/or (g) of the GATT 1994. Footnotes 1 Centre for International Economics, ‘A Final Report to Inform a Regulation Impact Statement for the Proposed New Policy on Illegally Logged Timber’ (Final Report, 29 January 2010), 100. 2 See generally, World Wildlife Fund, The Global Initiative Against Transnational Organised Crime, ‘Tightening the Net: Toward a Global Legal Framework on Transnational Organized Environmental Crime’ (April 2015) <https://globalinitiative.net/wp-content/uploads/2015/04/tightening-the-net.pdf> accessed 7 August 2020; Katharina Kunzmann, ‘The Non-Legally Binding Instrument on Sustainable Management of All Types of Forests—Towards a Legal Regime for Sustainable Forest Management?’ (2008) 9(8) Ger Law J 981; Rudy S Salo, ‘When the Logs Roll Over: The Need for an International Convention Criminalizing Involvement in the Global Illegal Timber Trade’ (2003) 16 Geo Intl Env L Rev 127. 3 General Agreement on Tariffs and Trade 1994 (adopted 15 April 1994, entered into force 1 January 1995) LT/UR/A-1A/1/GATT/1 (GATT 1994). 4 Technical Barriers to Trade (adopted 15 April 1994, entered into force 1 January 1995) 1867 UNTS 3 (TBT Agreement). 5 Andrew Mitchell and Glyn Ayres, ‘Out of Crooked Timber: The Consistency of Australia’s Illegal Logging Prohibition Bill with the WTO Agreement’ (2012) 29 EPLJ 462. 6 ibid, 478. 7 Ben Saul and Tim Stephens, ‘Not Yet Out of the Woods: Australia’s Attempt to Regulate Illegal Timber Imports and World Trade Organization Obligations’ (2012) 19 AILJ 143. 8 ibid, 144. 9 Department of Agriculture, Independent Review of the Impact of the Illegal Logging Regulations on Small Business (March 2015) 116. 10 Department of Agriculture and Water Resources, Statutory Review of the Illegal Logging Prohibition Act 2012: Review Report (November 2018) 22–23; Department of Agriculture, Independent Review of the Impact of the Illegal Logging Regulations on Small Business (March 2015) 63–64. 11 WTO: European Communities: Measures Prohibiting the Importation and Marketing of Seal Products—Report of the Appellate Body (22 May 2014) WT/DS400/AB/R; WT/DS401/AB/4 (AB, EC—Seal Products). 12 Comprehensive and Progressive Agreement for Trans-Pacific Partnership (adopted 8 March 2018; entered into force 30 December 2018) (CP-TPP), Objective 20.2. 13 ibid, art 20.17 (footnotes omitted). 14 The parties to the CP-TPP (excluding Australia) are: Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, Peru, New Zealand, Singapore and Vietnam. 15 For a list of the producers of timber who export to Australia, see: World Bank, World Integrated Trade Solution, Australia Wood Imports by Country 2018 <https://wits.worldbank.org/CountryProfile/en/Country/AUS/Year/2018/TradeFlow/Import/Partner/by-country/Product/44-49_Wood> accessed 6 August 2020. 16 Christian Nellemann, ‘INTERPOL Environmental Crime Programme’ (eds) Green Carbon, Black Trade: Illegal Logging, Tax Fraud and Laundering in the World’s Tropical Forests (United Nations Environment Programme, GRID Arendal 2012) 13. 17 Human Rights Watch, ‘“Wild Money”: The Human Rights Consequences of Illegal Logging and Corruption in Indonesia’s Forestry Sector’ (1 December 2009) <https://www.hrw.org/report/2009/12/01/wild-money/human-rights-consequences-illegal-logging-and-corruption-indonesias> accessed 7 February 2021. 18 See generally: Interpol, Global Forestry Enforcement: Strengthening Law Enforcement Cooperation Against Forestry Crime (April 2019) <https://www.interpol.int/content/download/5149/file/Global%20Forestry%20Enforcement%20Prospectus%202019-web.pdf> accessed 7 February 2021; Nalin Kishor and Richard Damania, ‘Crime and Justice in the Garden of Eden: Improving Governance and Reducing Corruption in the Forestry Sector,’ in J Edgardo Campos and Sanjay Pradnan (eds) The Many Faces of Corruption: Tracking Vulnerabilities at the Sector Level (The World Bank 2007). 19 Fernando Reboredo, ‘Socio-economic Environmental, and Governance Impacts of Illegal Logging’ (2013) 33 Enviro Syst Decis 295. 20 Africa Progress Panel, Grain, Fish, Money: Financing Africa’s Green and Blue Revolutions (Africa Progress Report 2014) 88. 21 UN-REDD Programme <https://www.un-redd.org> accessed 17 August 2020. 22 The Forest Carbon Partnership Facility <https://www.forestcarbonpartnership.org> accessed 9 October 2020. 23 EU FLEGT Facility <http://www.euflegt.efi.int/home> accessed 17 August 2020. 24 Food, Conservation, and Energy Act of 2008 (US). 25 The Act, ss 8 and 9. 26 ibid, s 15. 27 ibid, s 7, definition of ‘illegally logged’. 28 ibid, ss 12(c), 17(1)(c), 8, 9 and 15. 29 Explanatory Memorandum to Illegal Logging Prohibition Bill 2011 (EM), 2. 30 ibid. 31 WTO, European Communities: Regime for the Importation, Sale and Distribution of Bananas—Report of the Panel (22 May 1997) WT/DS27/R/ECU; WT/DS27/R/GTM; WT/DS27/R/HND; 25/DS27/R/MEX; WT/DS27/R/USA (Panel, EC—Bananas III) [7.239]. 32 WTO, United States: Certain Country of Origin Labelling—Report of the Panel (18 November 2011) WT/DS384/R; WT/DS386/R (Panel, US—COOL) [7.571] (referring to WTO, Colombia: Indicative Prices and Restrictions on Ports of Entry—Report of the Panel (27 April 2009) WT/DS366/R [7.236], in turn referring to WTO, Argentina: Measures Affecting the Export of Bovine Hides and the Import of Finished Leather—Report of the Panel (19 December 2000) WT/DS155/R [11.20], in turn referring to WTO, Japan: Taxes on Alcoholic Beverages—Report of the Appellate Body (4 October 1996) WT/DS8/AB/R WT/DS10/AB/R WT/DS11/AB/R p. 16; and WTO, Korea: Alcoholic Beverages—Report of the Appellate Body (18 January 1999) WT/DS75/AB/R; WT/DS84/AB/R [119], [120] and [127]. 33 AB, EC—Seal Products (n 11) [5.87]. 34 The Act, s 7, definition of ‘illegally logged’. 35 Mitchell and Ayres (n 5) 467–68. 36 Robert Howse and Donald Regan, ‘The Product/Process Distinction—An Illusory Basis for Disciplining “Unilateralism” in Trade Policy’ (2011) 11 EJIL 249, 274. 37 Laurens Ankersmit, Jessica Lawrence and Gareth Davies, ‘Diverging EU and WTO perspectives on extraterritorial process regulation’ (2012) 21 Minn J Int’l L, 14–94, 24. 38 Lorand Bartels, ‘Article XX of GATT and the Problem of Extraterritorial Jurisdiction—The Case of Trade Measures for the Protection of Human Rights’ (2002) 36(2) JWT 353, 378. 39 WTO: Canada: Certain Measures Affecting the Automotive Industry—Report of the Panel (11 February 2000) WT/DS139/R; WT/DS142/R (Panel, Canada—Autos). 40 Panel, EC—Bananas III (n 31). 41 WTO, United States: Certain Measures Affecting Imports of Poultry from China—Report of the Panel (29 September 2010) WT/DS392/R [7.427]. 42 Organization for Economic Cooperation and Development, Processes and Production Methods (1997), quoted and discussed in Christiane Conrad, Processes and Production Methods (PPMs) in WTO Law: Interfacing Trade and Social Goals (CUP 2011) 27. 43 Steve Charnovitz, ‘The Law of Environmental PPMs in the WTO: Debunking the Myth of Illegality’ (2002) 27 Yale J Int’l L 59. 44 David Sifonios, Environmental Process and Production Methods (PPMs) in WTO Law (Springer 2018), 115; Marco Bronckers and Natalie McNelis, ‘Rethinking the “Like Product” Definition in GATT 1994: Anti-Dumping and Environmental Protection,’ in Thomas Cottier and Petros C Mavroidis (eds), Regulatory Barriers and the Principle of Non-Discrimination in Trade Law (Ann Arbor 2000) 376; Gabrielle Marceau and Joel Trachtman, ‘The Technical Barriers to Trade Agreement, the Sanitary and Phytosanitary Measures Agreement, and the General Agreement on Tariffs and Trade: A Map of the World Trade Organization Law of Domestic Regulation of Goods’ (2002) 36(5) JWT 859. 45 WTO, Philippines: Taxes on Distilled Spirits—Report of the Appellate Body (15 August 2011) WT/DS396R WT/DS403/R [154]. 46 The Act, ss 12 and 17. 47 WTO, India: Measures Affecting the Automotive Sector—Report of the Panel (21 December 2001) WT/DS146/R, WT/DS75/R (Panel, India—Autos) [7.174]. 48 WTO, Canada: Wheat Exports and Grain Imports—Report of the Panel (6 April 2004) WT/DS276/R n 246; Panel, Canada—Autos (n 39) [10.74]; WTO, Turkey: Measures Affecting the Importation of Rice—Report of the Panel (21 September 2007) WT/DS334/R [7.216]; WTO, China: Measures Affecting Imports of Automobile Parts—Report of the Panel (18 July 2008) WT/DS339/R, WT/DS340/R, WT/DS342/R [7.235]; WTO, China: Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products (12 August 2009) WT/DS363/R [7.1444]–[7.1447] and [7.1506]; WTO, Thailand: Customs and Fiscal Measures on Cigarettes from the Philippines—Report of the Panel (15 November 2010) WT/DS371/R [7.661]–[7.662]. 49 WTO, European Communities: Measures Affecting Asbestos and Asbestos-Containing Products—Report of the Appellate Body (12 March 2001) WT/DS135/AB/R (AB, EC—Asbestos) [122]–[126]. 50 WTO, Philippines: Taxes on Distilled Spirits—Report of the Appellate Body (21 December 2011) WT/DS396/AB/R WT/DS403/AB/R (AB, Philippines—Distilled Spirits) [154]. 51 AB, EC—Asbestos (n 49) [100]. 52 WTO, Dominican Republic: Measures Affecting the Importation and Internal Sale of Cigarettes—Report of the Appellate Body (25 April 2005) WT/DS302/AB/R [93]. 53 Mitchell and Ayres (n 5) 470. 54 ibid (footnotes omitted). 55 WTO, Korea: Measures Affecting Imports of Fresh, Chilled and Frozen Beef—Report of the Appellate Body (11 December 2000) WT/DS161/R and WT/DS169/R (AB, Korea—Various Measures on Beef) [144] (emphasis in original). 56 The Act, s 8. 57 ibid, s 12. 58 WTO: Argentina: Measures Affecting the Export of Bovine Hides and the Import of Finished Leather—Report of the Panel (19 December 2000) WT/DS155/R, [11.17]. 59 The Act, ss 12(c) and 17(1)(c). 60 WTO, United States: Import Prohibition of Certain Shrimp and Shrimp Products—Report of the Panel (15 May 1998) WT/DS58/R (Panel, US—Shrimp) [7.16]. 61 WTO, Brazil: Measures Affecting Imports of Retreaded Tyres—Report of the Panel (12 June 2007) WT/DS332/R (Panel, Brazil—Retreaded Tyres) [7.32], [7.370]–[7.372]. The AB did not review this finding. 62 Panel, India—Autos (n 47) [7.269]. 63 WTO, United States: Standards for Reformulated and Conventional Gasoline-—Report of the Appellate Body (20 May 1996) WT/DS2/9 (AB, US—Gasoline) p. 22; WTO, United States: Import Prohibition of Certain Shrimp and Shrimp Products—Report of the Appellate Body (12 October 1998) WT/DS58/AB/R (AB, US—Shrimp) [119]–[120]. 64 AB, Korea—Various Measures on Beef (n 55) [161]. 65 WTO, United States: Restrictions on Imports of Tuna—GATT Panel Report, GATT Doc DS21/R (3 September 1991, unadopted) [5.25]–[5.32], referring to Article XX(b) and XX(g); WTO, United States: Restrictions on Imports of Tuna— GATT Panel Report, GATT Doc DS29/R (16 June 1994) at [5.16], [5.27], [5.38]–[5.39]. 66 AB, US—Shrimp (n 63) [133]. 67 ibid. 68 AB, EC—Seal Products (n 11) [5.173]. 69 ibid, footnotes omitted. 70 Peter Van den Bossche, Nico Schrijver and Gerrit Faber, ‘Unilateral Measures addressing Non-Trade Concerns. A study on WTO Consistency, Relevance of other International Agreements, Economic Effectiveness and Impact on Developing Countries of Measures concerning Non-Product-Related Processes and Production Methods’ (The Ministry of Foreign Affairs of The Netherlands 2007), 96. 71 Steve Charnovitz, ‘The Moral Exception in Trade Policy’ (1998) 38 Va J Int’l L 689, 695. 72 ibid, 742. 73 Natalie Dobson, ‘Exploring the Crystallization of “Climate Change Jurisdiction”: A Role for Precaution?’ (2018) 8(3)–(4) Clim L 214–15. 74 ‘The Future We Want’ (UN Doc A/RES/66/288, 11 September 2012), Resolution adopted by the General Assembly on 27 July 2012. 75 See Margaret Young, ‘Trade Measures to Address Climate Change: Territory and Extraterritoriality’ in Panagiotis Delimatsis (ed) Research Handbook on Climate Change and Trade Law (Edward Elgar 2016), 342. 76 United Nations Climate Change, ‘New York Declaration on Forests: Declaration and Action Agenda’ (26 November 2015) <https://unfccc.int/documents/23232> accessed 21 August 2020. 77 WTO, United States: Measures Affecting the Cross-Border Supply of Gambling and Betting Services—Report of the Panel (10 November 2004) WT/DS285/R (Panel, US—Gambling) [6.465]. 78 ibid, [6.461]. 79 AB, EC—Seal Products (n 11) [5.199]. 80 WTO, Brazil: Certain Measures Concerning Taxation and Charges—Report of the Panel (30 August 2017) WT/DS472/R, WT/DS497/R [7.558]. 81 Oisin Suttle, ‘What Sorts of Things are Public Morals? A Liberal Cosmopolitan Approach to Article XX GATT’ (2017) 80(4) Mod L Rev 569, 595. 82 ibid. 83 Annika Blau, ‘What Australians really think about climate action’ (5 February 2020) <https://www.abc.net.au/news/2020-02-05/australia-attitudes-climate-change-action-morrison-government/11878510?nw=0> accessed 14 August 2020. 84 EM (n 29) 5. 85 Kevin Rudd, ‘Building a Better World Together’ (Kyoto University, 9 June 2008) <https://pmtranscripts.pmc.gov.au/release/transcript-15955> accessed 1 November 2020. 86 See, eg: Emma Jukic and Margaret A Young, ‘Country Report: Australia’ (2017) 28 YIEL 404; (2016) 27 YIEL 399; (2015) 26 YIEL 390; (2014) 25 YIEL 471; (2013) 24 YIEL 512; (2012) 23 YIEL 512; (2011) 22 YIEL 566. 87 Clean Energy Act 2011 (Cth). 88 Carbon Pollution Reduction Scheme Bill 2009 (Cth) (failed); National Energy Guarantee 2017 (failed). 89 ‘Australia’ Paris Equity Check <http://paris-equity-check.org/multi-equity-map.html#open-graph> accessed 1 November 2020; see Yann Robiou du Pont and others, ‘Equitable Mitigation to Achieve the Paris Agreement Goals’ (2017) 7 Nat Clim Change 38. 90 International Energy Agency, Coal Information 2019 (IEA 2019) see 45–46 and figure 2.1 <iea.org/reports/coal-information-2019> accessed 26 October 2020. 91 WTO, Colombia: Textiles—Report of the Appellate Body (7 June 2016) WT/DS461/AB/R (AB, Colombia—Textiles) [5.68]. 92 ibid. 93 EM (n 29) 2. 94 ibid. 95 AB, Colombia—Textiles (n 91) [5.71]. 96 WTO, European Communities: Measures Prohibiting the Importation and Marketing of Seal Products—Report of the Panel (25 November 2013) WT/DS400/R WT/DS401/R (Panel, EC—Seal Products) [7.632]. 97 Panel, US—Gambling (n 77) [6.489]–[6.492]. 98 AB, Colombia—Textiles (n 91) [5.72]. 99 WTO, Brazil: Measures Affecting Imports of Retreaded Tyres—Report of the Appellate Body (3 December 2007) WT/DS332/AB/R [150] (AB, Brazil—Retreaded Tyres). 100 Panel, EC—Seal Products (n 96) fn 977. 101 Saul and Stephens (n 7) 151–52. 102 The World Bank, ‘Forest Law Enforcement and Governance’ (28 August 2013) <https://www.worldbank.org/en/topic/forests/brief/forest-law-enforcement-governance> accessed 10 August 2020. 103 ibid. 104 ibid. 105 ibid. 106 ibid. 107 Michael Taylor, ‘Malaysia Working to Tighten Laws on Forest Protection, Says Minister’ (31 July 2010) <https://www.reuters.com/article/us-malaysia-forests-laws/malaysia-working-to-tighten-laws-on-forest-protection-says-minister-idUSKCN1UQ14C> accessed 10 August 2020. 108 Gitika Bhardwaj, Chatham House, ‘Forest Governance: How Indonesia and Vietnam are Responding to Illegal Logging’ (5 September 2017) <https://www.chathamhouse.org/expert/comment/forest-governance-how-indonesia-and-vietnam-are-responding-illegal-logging#> accessed 10 August 2020. 109 ibid. 110 World Bank Group, ‘Forest Action Plan FY16–20’ (Washington 2016) <https://openknowledge.worldbank.org/handle/10986/24026> accessed 10 August 2020. 111 Luciane Moessa, Jan Willem van Gelder, Tim Steinweg, Matt Piotrowski, Chain Reaction Research, ‘Financing Deforestation Increasingly Risky Due to Tightening Regulatory Frameworks’ (31 January 2020) <https://chainreactionresearch.com/report/financing-deforestation-increasingly-risky-due-to-tightening-regulatory-frameworks/> accessed 9 August 2020. 112 Saul and Stephens (n 7) 151–52. 113 Department of Agriculture, ‘Independent Review of the Impact of the Illegal Logging Regulations on Small Business’ (March 2015) 63–64; Department of Agriculture and Water Resources, ‘Statutory Review of the Illegal Logging Prohibition Act 2012’ (Review Report, November 2018) 22–23. 114 ibid. 115 AB, Brazil—Retreaded Tyres (n 99) [151]. 116 Mitchell and Ayres (n 5) 473. 117 Robert Howse and Michael Trebilcock, ‘The Free Trade-Fair Trade Debate: Trade, Labor and the Environment,’ in Alan Sykes and Jagdeep Bhandari (eds), Economic Dimensions in International Law (CUP 1995) 186, 197. 118 ibid 199. 119 ibid. 120 Canada’s appellant’s submission, [177]; Norway’s appellant’s submission, [394] discussed in AB, EC—Seal Products (n 11) [5.247]. 121 AB, EC—Seal Products (n 11) [5.247] (emphasis original). 122 Centre for International Economics, A Final Report to Inform a Regulation Impact Statement for the Proposed New Policy on Illegally Logged Timber, prepared for the Department of Agriculture, Fisheries and Forestry (29 January 2010) 120. 123 EM (n 29) 5. 124 AB, Colombia—Textiles (n 91) [5.73]. 125 The Act, s 8. 126 ibid, s 7. 127 Saul and Stephens also make this point—see: Saul and Stephens (n 7) 153. 128 AB, EC—Asbestos (n 49) [172]. 129 Saul and Stephens (n 7) 158. 130 AB, US—Shrimp (n 63). 131 ibid, [5]. 132 ibid, [164]. 133 See generally, Interpol, ‘Uncovering the Risks of Corruption in the Forestry Sector’ (9 December 2016); The World Bank, ‘Strengthening Forest Law Enforcement and Governance: Addressing a Systemic Constraint to Sustainable Development’ Report No 36638-GLB (August 2006); see generally, Nellemann (n 16); Jonathan Zeitlin and Christine Overdevest, ‘Experimentalist Interactions: Joining Up the Transnational Timber Legality Regime’ (2020) Regul Govern Early View, 6; Vanda Felbab-Brown, Not as Easy as Falling Off a Log: The Illegal Logging Trade in the Asia-Pacific Region and Possible Mitigation Strategies (Working Paper Number 5, March 2011) 15. 134 WTO, United States: Gambling—Report of the Appellate Body (7 April 2005) WT/DS285/AB/R (AB, US—Gambling) [308]; AB, Brazil—Retreaded Tyres (n 99), [170]. 135 AB, US—Gambling (n 134) [308]. 136 EM (n 29) 43. 137 ibid. 138 AB, EC—Asbestos (n 49) [172]. 139 Panel, Brazil—Retreaded Tyres (n 61) [7.108]. 140 AB, US—Shrimp (n 63) [129]. 141 ibid, [127]–[131]. 142 WTO, China: Measures Related to the Exportation of Rare Earths, Tungsten, and Molybdenum—Report of the Appellate Body (7 August 2014) WT/DS431/AB/R, WT/DS432/AB/R, WT/DS433/AB/R [5.94]. 143 Saul and Stephens also make this point—see: Saul and Stephens (n 7) 153. 144 AB, US—Gasoline (n 63) 21 (emphasis in original). 145 The Act, ss 12–18. 146 AB, US—Shrimp (n 63) [157] (emphasis in original). 147 ibid, [160]. 148 AB, Brazil—Retreaded Tyres (n 99) [227]. 149 ibid. 150 WTO, European Communities: Conditions for the Granting of Tariff Preferences to Developing Countries—Report of the Appellate Body (7 April 2004) WT/DS246/AB/R [163]. 151 World Bank, World Integrated Trade Solution, ‘Australia Wood Imports by Country 2018’ <https://wits.worldbank.org/CountryProfile/en/Country/AUS/Year/2018/TradeFlow/Import/Partner/by-country/Product/44-49_Wood> accessed 6 August 2020. 152 ibid. 153 AB, US—Shrimp (n 63) [165]. 154 ibid, [161]. 155 ibid, [164] (emphasis in original). 156 AB, US—Shrimp (n 63) [172] and AB, EC—Seal Products (n 11) [5.337]. 157 Australian Government, Department of Agriculture, Fisheries and Forestry, ‘Development of a UNFF Non Legally Binding Instrument on Forests: Australia’s Response to Consolidated Submissions on the Indicative Elements’ <https://www.un.org/esa/forests/wp-content/uploads/2014/12/comments-australia.pdf> accessed 5 January 2021. 158 United Nations Forest Instrument, A/RES/70/199 (16 February 2016), <https://www.un.org/esa/forests/wp-content/uploads/2018/08/UN_Forest_Instrument.pdf> accessed 5 January 2021. 159 Department of Agriculture, Water and the Environment, ‘United Nations Forum on Forests’, <https://www.agriculture.gov.au/forestry/international/forums/unff> accessed 7 January 2021. 160 Department of Agriculture, Water and the Environment, ‘Australia’s bilateral relationships on forestry’, <https://www.agriculture.gov.au/forestry/international/regional#australia-and-new-zealand> accessed 28 August 2020. 161 Department of Agriculture, Water and the Environment, ‘Asia Pacific Forestry Skills and Capacity Building Programme’ <https://www.agriculture.gov.au/forestry/international/asia-pacific-forestry-program> accessed 28 August 2020. 162 Department of Agriculture, Water and the Environment, ‘Illegal Logging: Regional Capacity Building Partnership’ <https://www.agriculture.gov.au/forestry/international/reg-cap-bldg-pship> accessed 28 August 2020. 163 EM (n 29) 52. 164 Illegal Logging Prohibition Regulation 2012, Sch 2, Pt 2; see: ‘Resources for imports: Country Specific Guidelines’ <https://www.agriculture.gov.au/forestry/policies/illegal-logging/importers/resources#country-specific-guidelines> (accessed 1 November 2020). 165 AB, US—Shrimp (n 63) [172]. 166 AB, EC—Seal Products (n 11) [5.337]. 167 WTO: United States: Import Prohibition of Certain Shrimp and Shrimp Products—Recourse to Article 21.5 of the DSU by Malaysia (22 October 2001) WT/DS58/AB/RW [122]. 168 Katharina Kunzmann, ‘The Non-Legally Binding Instrument on Sustainable Management of All Types of Forests—Towards a Legal Regime for Sustainable Forest Management?’ (2008) 9(8) Ger L J 981, 982. 169 TBT Agreement (n 4) Annex I(1). 170 AB, EC—Asbestos (n 49) [67]–[70]; WTO, European Communities: Trade Description of Sardines—Report of the Appellate Body (26 September 2002) WT/DS231/AB/R (AB, EC—Sardines) [176]. 171 For a description of ‘product characteristics’, see AB, EC—Asbestos (n 49) [67]. See also AB, EC—Sardines, ibid [189]. 172 See Division 5 of the Act generally. 173 The Act, s 7. 174 This definition of ‘environmental law’ is adapted from the definition of ‘environmental law’ set out at Ch 20.1 of the Environment chapter of the CP-TPP. 175 Sophie Chao, Forest Peoples: Numbers Across the World (Forest Peoples Programme 2012) 3. 176 UN-REDD Programme Collaborative Workspace (2020) <https://www.unredd.net/knowledge/redd-plus-technical-issues/stakeholder-engagement.html> accessed 4 November 2020. 177 Maureen Tehan, Lee Godden, Margaret Young and Kirsty Gover, The Impact of Climate Change Mitigation on Indigenous and Forest Communities: International, National and Local Law Perspectives on REDD+ (CUP 2017) 347. 178 ibid, 213. 179 ibid, 102. 180 Paris Agreement under the United Nations Framework Convention on Climate Change (adopted 22 April 2015, entered into force 4 November 2016) art 7(5). 181 Panel, EC—Seal Products (n 96) [7.319]. ACKNOWLEDGEMENTS The author would like to thank Professor Margaret Young, The University of Melbourne, Editor-in-Chief, Liz Fisher, University of Oxford, as well as two anonymous reviewers for their valuable comments on an earlier draft of this article. All errors and omissions remain the responsibility of the author. © The Author(s) 2021. Published by Oxford University Press. All rights reserved. For permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
TI - ‘Seeing the Wood for the Trees’: Revisiting the Consistency of Australia’s Illegal Logging Act with the Law of the World Trade Organization
JF - Journal of Environmental Law
DO - 10.1093/jel/eqab005
DA - 2021-04-08
UR - https://www.deepdyve.com/lp/oxford-university-press/seeing-the-wood-for-the-trees-revisiting-the-consistency-of-australia-FS8cXJJJzm
SP - 1
EP - 1
VL - Advance Article
IS - 
DP - DeepDyve
ER -