The Clothes (Un)Make the Man: How the Textile Quota Phase-out Wears-out the Planet
2022; Taylor & Francis; Volume: 35; Issue: 1 Linguagem: Inglês
10.1080/10406026.2022.2160428
ISSN1547-657X
Autores Tópico(s)Global trade, sustainability, and social impact
ResumoAbstractThe textile sector is one of the most environmentally harmful industries in the world. From 1974-2004, trade in textiles was subject to quota-based restrictions that effectively limited global apparel production. Since these quotas were phased out in the early 2000s, global clothing production has roughly doubled. Despite this, there is currently no literature – legal or otherwise – assessing the environmental impacts of such a major change in global trade policy. This paper shows how the textile quota phase-out has enabled the ‘fast fashion’ phenomenon, and exacerbated the environmental consequences that accompany it. In addition, it assesses the legal viability of reintroducing some form of textile quotas under current international trade law. Based on this analysis, it concludes that reforms in trade-related policy and jurisprudence are urgently needed and ultimately inevitable. Notes1 See Morgan McFall-Johnsen, The Fashion Industry Emits More Carbon than International Flights and Maritime Shipping Combined. Here are the Biggest Ways it Impacts the Planet, Business Insider (2019), https://www.businessinsider.com/fast-fashion-environmental-impact-pollution-emissions-waste-water-2019-10; Shea Karssing, Top 5 Industries with the Highest Water Consumption, Smarter Business (2020), https://smarterbusiness.co.uk/blogs/the-top-5-industries-that-consume-the-most-water/.2 See United Nations Environment Programme, Putting the Brakes on Fast Fashion, UNEP (2018), https://www.unep.org/news-and-stories/story/putting-brakes-fast-fashion.3 See infra, Part IV.4 See R. Rathinamoorthy, Circular Economy in Textiles and Apparel 27 (Subramanian Senthikannan Muthu, 2019).5 See Kirsi Niinimaki et al., The Environmental Price of Fast Fashion, 1 Nature Reviews Earth & Environment, 189, 195 (2020).6 Maria Fleischmann, How Much Do Our Wardrobes Cost to the Environment? World Bank (September 2019), https://www.worldbank.org/en/news/feature/2019/09/23/costo-moda-medio-ambiente. It should be noted that there are a range of other estimates, from 3-10%. For more information, see Kris K.Y. Lo and Simon Mair, The Clothing Industry Produces 3 to 10% of Global Greenhouse Gas Emissions, as Accurately Claimed in Patagonia Post, Climate Feedback (2020), https://climatefeedback.org/claimreview/the-clothing-industry-produces-3-to-10-of-global-greenhouse-gas-emissions-as-accurately-claimed-in-patagonia-post/ (“Ten percent is probably at the higher end of estimates, but still has a solid basis in the science.”).7 Maria Paula Rubiano, Major Fashion Brands Linked to Deforestation in the Amazon, Report Finds, Grist (2021), https://grist.org/international/major-fashion-brands-may-be-indirectly-driving-deforestation-in-the-amazon/?utm_medium=email&utm_source=newsletter&utm_campaign=daily.8 Jenny Griffin and Janaya Wilkins, Plastic Pollution: The Impact of Plastic Pollution on Our Oceans and What We Can Do About It, Sloactive (2021), http://sloactive.com/plastic-pollution/#uvembed60837.9 See infra, Part IV.10 Anna Granskog et al., Biodiversity: The Next Frontier in Sustainable Fashion, McKinsey (2020), https://www.mckinsey.com/industries/retail/our-insights/biodiversity-the-next-frontier-in-sustainable-fashion.11 See Kate Fletcher and Mathilda Tham, Routledge Handbook of Sustainability and Fashion 2–3 (2014).12 See Id.13 As of April 2022, a Westlaw search brought up 98 law review/journal articles with the words "oil" and "environmental" in their titles; 82 with "gas" and "environmental" in the title; 36 with "agriculture" and "environmental;" 10 with “transport” and “environmental;” and none with "textile" and "environmental" (though "fashion" and "environmental" did yield one result). 14 See Alden Wicker, Fashion Has a Misinformation Problem; That’s Bad for the Environment, Vox (2020), https://www.vox.com/the-goods/2020/1/27/21080107/fashion-environment-facts-statistics-impact15 See Sarif Patwary, Clothing and Textile Sustainability: Current State of Environmental Challenges and the Ways Forward, 3 Textile & Leather Review, 158–173, 159 (2020).16 Id. at 160. Generally speaking, cultivation of natural raw materials is most associated with water consumption, shipping and production of synthetic materials with GHG emissions, spinning and dyeing with chemical usage and pollution, and sewing and consumer washing with energy consumption. See Id.17 See Id.18 Id. For example, natural fibers tend to be more water intensive, while synthetics are usually more energy intensive. See id.19 See Niinimaki et al., supra note 5, at 192. This is due primarily to differences in environmental standards and processing practices. See id.; see also infra, Part I.20 See Matthew Green, Where Does Your T-Shirt Come From? Follow Its Epic Global Journey, KQED (2015), https://www.kqed.org/lowdown/7943/making-your-t-shirt-a-journey-around-the-world.21 Kitty G. Dickerson, Textile Trade: The GATT Exception, 11 St. John's J. Legal Comment, 393, 395–6 (1996).22 See id. at 393; see also M.S. Alam et al., The Apparel Industry in the Post-Multifiber Arrangement Environment: A Review, Review of Development Economics, 454, 455 (2018).23 See Dickerson, supra note 21, at 398-99.24 Id. at 409.25 See Id. at 412.26 Agreement Regarding International Trade in Textiles, Dec. 20, 1973, GATT B.I.S.D. (21st Supp.) (1975).27 Dickerson, supra note 21, at 413.28 Id.29 See M. Ramesh, Explaining Cross-Industry Variations in Trade Protection: Textiles, Clothing and Footwear in Canada, Review of International Studies 20(1), 75, 92 (1994).30 See Dickerson, supra note 21, at 416–21.31 See Alice Wohn, Towards GATT Integration: Circumventing Quantitative Restrictions on Textiles and Apparel Trade Under the Multi-Fiber Arrangement, U. Pa. J. Int’l Econ. L. 22, 375, 378-9 (2001).32 See Dickerson, supra note 21, at 424–26.33 Id. at 427.34 John Whalley and Daqing Yao, Assessing the Effects of the Multifibre Arrangement After its Termination, CIGI Papers No. 93, 2 (2016).35 Cristina Palacios-Mateo et al., Analysis of the Polyester Clothing Value Chain to Identify Key Intervention Points for Sustainability, 33 Environmental Sciences Europe, 1, 1 (2021). The global population has increased only 25% over the same period. See Id.36 As of February 2022, various combinations of the following key terms yielded no first-page results considering the environmental impact of the textile quota phase-out: “environment;” “environmental;” “textile;” “quota phase out;” “quota phase-out;” “impact;” “multi fiber arrangement;” “multi fibre arrangement;” “multifiber arrangement;” “multifibre arrangement;” “multi-fiber arrangement;” “multi-fibre arrangement;” “agreement on textiles and clothing;” “MFA;” “ATC;” “fast fashion;” “fashion;” “apparel production;” “clothing production;” “expiration;” “free trade.” These searches were carried out on Google, Westlaw and Google Scholar.37 Patwary, supra note 15, at 159.38 Id.39 Alam et al., supra note 22, at 465.40 Werner International Labor Cost Comparison Report, (2014), http://www.werner-newtwist.com/en/newsl-vol-011/index.htm#Title%20441 Alam et al., supra note 22, at 455.42 Stephanie Clifford, U.S. Textile Plants Return, With Floors Largely Empty of People, N.Y. Times (2013), https://www.nytimes.com/2013/09/20/business/us-textile-factories-return.html.43 See Niinimaki et al., supra note 5, at 191. It is estimated that moving just 1% of garment transportation from ship to air cargo could result in a 35% increase in carbon emissions. See id.44 Cornelia Staritz, Making the Cut? Low-Income Countries and the Global Clothing Value Chain in a Post-Quota and Post- Crisis World, World Bank Publications 139 (2011).45 See Patwary, supra note 15, at 159–162.46 Nathalie Remy et al., Style That’s Sustainable: A New Fast-Fashion Formula, McKinsey (2016), https://www.mckinsey.com/business-functions/sustainability/our-insights/style-thats-sustainable-a-new-fast-fashion-formula.47 Imran Amed et al., The State of Fashion 2019, McKinsey & Co. 35 (2019).48 Patwary, supra note 15, at 161.49 See Rachel Bick et al., The Global Environmental Injustice of Fast Fashion, Environmental Health, 17(1), 1 (2018).50 See Patwary, supra note 15, at 161.51 Annie Kelly, ‘Virtually Entire’ Fashion Industry Complicit in Uighur Forced Labor, Say Rights Groups, The Guardian (2020), https://www.theguardian.com/global-development/2020/jul/23/virtually-entire-fashion-industry-complicit-in-uighur-forced-labour-say-rights-groups-china.52 See Patwary, supra note 15, at 160.53 See Niinimaki et al., supra note 5, at 190.54 See Id.55 See Id.; see also infra, note 206.56 See Id.57 See infra, Part IV.58 See Wolfgang Boedeker et al., The Global Distribution of Acute Unintentional Pesticide Poisoning: Estimations Based on a Systematic Review, BMC Public Health 20, 1875 (2020).59 See Staritz, supra note 44, at 76.60 See Id. at 140.61 See Niinimaki et al., supra note 5, at 190.62 Marzieh Mehrjoo and Zbigniew J. Pasek, Risk Assessment for the Supply Chain of Fast Fashion Apparel Industry: A System Dynamics Framework, 54 International Journal of Production Research, 1, 3 (2015).63 “Clothing collections” refers to a group of related clothing designs that reflect seasonal styles and social trends. Though the number of pieces in a given clothing collection may vary, the number of collections put out is significant because each collection represents the latest fashion trends, thus influencing purchasing habits.64 See Remy et al., supra note 46. Major brands such as Zara put out roughly 24 collections per year. See infra, note 65.65 See Deutsche Welle, The Clothes We Wear | DW Documentary, YouTube (2020), https://www.youtube.com/watch?v=-64wZkdPRew&t=566s.66 See Tsan-Ming Choi and Ya-Jun Cai, Impacts of Lead Time Reduction on Fabric Sourcing in Apparel Production with Yield and Environmental Considerations, 290 Ann Oper Res, 521, 525 (2018). This is because shorter lead-times afford suppliers less time to take environmental precautions, and clothes made in a rush tend to be of lower quality (which, in turn, leads to higher rates of disposal). See Id.67 See Anya Janssen, Sustainable Fashion for Clean Water, Kroc School 60, 62 (2021); Patsy Perry, The Environmental Costs of Fast Fashion, Independent (2018), https://www.independent.co.uk/climate-change/sustainable-living/environment-costs-fast-fashion-pollution-waste-sustainability-a8139386.html.68 Palacios-Mateo et al., supra note 35, at 5.69 See Niinimaki et al., supra note 5, at 192.70 See Whalley and Yao, supra note 34, at 8.71 Press Release, United Nations Environment Programme, UN Alliance for Sustainable Fashion Addresses Damage of ‘Fast Fashion,’ U.N. Press Release UNEP (2019), https://www.unep.org/news-and-stories/press-release/un-alliance-sustainable-fashion-addresses-damage-fast-fashion. See also, Remy et al., supra note 46.72 See Niinimaki et al., supra note 5, at 190-91.73 See Xiaoyang Long & Javad Nasiry, Sustainability in the Fast Fashion Industry, SSRN Electronic Journal, 11 (2020).74 Niinimaki et al., supra note 5, at 195.75 See Id.76 Fleischmann, supra note 6.77 See Ellen MacArthur Foundation, A New Textiles Economy: Redesigning Fashion’s Future, 36 (2017).78 Shuvra Goswami, Study on Apparel Quotas: Global Phase and Consciousness, Vol. 5, No. 15, Developing Country Studies, 158, 158 (2015).79 See Grand View Research, Textile Market Size, Share & Trends Analysis Report Overview (2021), https://www.grandviewresearch.com/industry-analysis/textile-market. When adjusted for inflation, $6 billion in 1962 is equivalent to just over $50 billion in 2020. At the same time, declining apparel prices indicate that trade volumes have increased more than trade values might initially suggest.80 See Goswami, supra note 78, at 158.81 Patwary, supra note 15, at 161.82 See Sophia Opperskalski et al., Preferred Fiber and Materials Market Report 2021, Textile Exchange, 116 (2021). It should be noted that this is a conservative estimate as “solid figures do not exist on a global level” regarding the percentages of fiber allocation by usage. See id. An industry analysis concluded that the “fashion application segment…accounted for more than 73% of the global revenue share in 2021[.]” See Grand View Research, Textile Market Size, Share & Trends Analysis Report Overview (Feb. 2022), https://www.grandviewresearch.com/industry-analysis/textile-market.83 See supra, note 36.84 See Fletcher & Thams, supra note 11.85 Greenwashing is defined by Investopedia as “the process of conveying a false impression or providing misleading information about how a company's products are more environmentally sound.” See Will Kenton, Greenwashing, Investopedia (2021), https://www.investopedia.com/terms/g/greenwashing.asp86 See infra, notes 106–108.87 Abigail Beall, Why Clothes are so Hard to Recycle, BBC Future (2020), https://www.bbc.com/future/article/20200710-why-clothes-are-so-hard-to-recycle.88 Ellen McArthur Foundation, Toxin-free, Recyclable Clothing: Napapijri Circular Series (2021), https://ellenmacarthurfoundation.org/circular-examples/napapijri-circular-series.89 See Leal Filho et al., A Review of the Socio-Economic Advantages of Textile Recycling, Journal of Cleaner Production 218, 10, 15 (2019).90 See Ellen McArthur Foundation, supra note 88.91 See Filho et al., supra note 89, at 15.92 Marisa Adler, Textile Recovery in the U.S.: A Roadmap to Circularity, Resource Recycling Systems, 10 (2020).93 See Beall, supra note 87.94 See Galaad Preau, Sustainability and Globalization in Fashion: Can the Fashion Industry Become Sustainable, While Remaining Globalized?, 81 (2020) (M.A. thesis, HEC Paris) (ResearchGate).95 Omid Nodoushani et al., Recycling and its Effects on the Environment, Competition Forum Vol. 14 No. 1, 65, 68 (2016).96 See Terry Nguyen, Americans Throw Away Too Many Clothes. Poorer Countries are Left with the Waste, Vox (Oct. 2021), https://www.vox.com/the-goods/22700581/aja-barber-consumed-book-fast-fashion-ghana.97 Zoya Wazir, How Fast Fashion Dumps into the Global South, U.S. News (2021), https://www.usnews.com/news/best-countries/articles/2021-11-11/how-dead-white-mans-clothing-is-clogging-the-global-south.98 Preau, supra note 94, at 81; see also infra, Part IV.99 Patwary, supra note 15, at 161.100 See Kirsi Laitala et al, Does Use Matter? Comparison of Environmental Impacts of Clothing Based on Fiber Type, Sustainability 10(7), 2524, 2 (2018).101 Rajkishore Nayak et al., Sustainable Technologies and Processes Adapted by Fashion Brands, in Sustainable Technologies for Fashion and Textiles, Woodhead Publishing 233, 234 (2020).102 See Rathinamoorthy, supra note 4, at 27.103 See Organic Trade Association, Get the Facts about Organic Cotton (2021), https://ota.com/advocacy/organic-standards/fiber-and-textiles/get-facts-about-organic-cotton#:∼:text=In%20addition%2C%20137%2C966%20acres%20of,0.95%20percent%20of%20global%20cotton.104 See Sofia Hadjiosif, Is Organic Cotton Sustainable? Pros & Cons, TerraMovement (2021), https://www.terramovement.com/is-organic-cotton-sustainable/.105 See Niinimaki et al., supra note 5, at 192; see also Marc Bain, Your Organic Cotton T-Shirt Might be Worse for the Environment than Regular Cotton, Quartz (2017), https://qz.com/990178/your-organic-cotton-t-shirt-might-be-worse-for-the-environment-than-regular-cotton/.106 Magali A. Delmas and Vanessa Cuerel Burano, The Drivers of Greenwashing, California Management Review, 54(1), 64 (2011).107 Id.108 See Phil McKenna, Analysis: Fashion Industry Efforts to Verify Sustainability Make ‘Greenwashing’ Easier, Inside Climate News (2022), https://insideclimatenews.org/news/08052022/fashion-industry-greenwashing/?utm_source=InsideClimate+News&utm_campaign=6d927e6a77-&utm_medium=email&utm_term=0_29c928ffb5-6d927e6a77-327492129.109 Forest Stewardship Council, Logo Use, https://us.fsc.org/en-us/certification/logo-use (last visited Feb 26, 2022).110 See Olga Speranskaya and Alexandra Caterbow, Sustainable Fashion? How Companies Provide Sustainability Information to Consumers, HEJSupport International, 23 (2020); Deutsche Welle, H&M and Zara: Can Fast Fashion Be Eco-Friendly? YouTube (2021), youtube.com/watch?v=00NIQgQE_d4&t=301s.111 See Preau, supra note 94, at 77.112 Preau, supra note 94, at 100.113 See Rosanne Kay et al., New Modern Slavery (Amendment) Bill Seeks to Strengthen the UK Modern Slavery Act 2015, Reed Smith (2021), https://www.reedsmith.com/en/perspectives/2021/06/new-modern-slavery-amendment-bill-seeks-to-strengthen-the-uk.114 See Natalie Gwenner, Environment Score Labels Confront Clothing Industry, Weber Marketing Blog, (2020), https://www.weber-marking.com/blog/environment-score-labels-confront-clothing-industry/#:∼:text=Environment%20score%20labels%20confront%20clothing%20industry&text=France%20has%20been%20the%20first,%2C%20redistributed%2C%20recycled%20or%20donated.115 Preau, supra note 94, at 100.116 Vanessa Friedman, New York Could Make History With a Fashion Sustainability Act, N.Y. Times (2022), https://www.nytimes.com/2022/01/07/style/new-york-fashion-sustainability-act.html.117 Elizabeth Jane Poland, Fashioning Compliance: The Fashion Charter for Climate Action and Strategies for Forming a More Effective Fashion Industry Agreement, Ga. J. Int’l & Comp. L. 49, 407, 419–20 (2021).118 See Id.119 Preau, supra note 94, at 100.120 See Olivia Suraci, The Best-Dressed Polluter-Regulation and Sustainability in the Fashion Industry, 27 Hastings Envtl. L.J. 225, 236 (2021).121 See Patwary, supra note 15, at 159–162.122 Rudrajeet Pal and Jonathan Gander, Modelling Environmental Value: An Examination of Sustainable Business Models Within the Fashion Industry, 184 Journal of Cleaner Production, 251, 259 (2018) (“the potential environmental value of the sustainable logics is not realized as they [are] unable to scale and replace existing unsustainable business models in fashion[.]”).123 See Elizabeth Cline, The Twilight of the Ethical Consumer, Atmos (2020), https://atmos.earth/ethical-consumerism/?mc_cid=c66d646add&mc_eid=6cc4778b20; see also Renee Cho, How Buying Stuff Drives Climate Change, State of the Planet, Columbia Climate School (2020), https://news.climate.columbia.edu/2020/12/16/buying-stuff-drives-climate-change/#:∼:text=The%20research%20concluded%20that%20it,use%20and%20buy%20every%20day.124 World Trade organization, WTO In Brief, https://www.wto.org/english/thewto_e/whatis_e/inbrief_e/inbr_e.htm#:∼:text=In%20brief%2C%20the%20World%20Trade,predictably%20and%20freely%20as%20possible (last visited May 16, 2022).125 Id.126 World Trade Organization, Dispute Settlement System Training Module, https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c3s3p1_e.htm (last visited Feb. 26, 2022).127 Id.128 General Agreement on Tariffs and Trade 1994, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, Article XI, 1867 U.N.T.S. 187, [GATT 1994].129 Specifically, Article XX’s introductory clause states that “nothing in this agreement shall be construed to prevent the adoption or enforcement by any contracting party of [the following] measures.” See id. at XX.130 The Appellate Body has clarified that the appropriate analytical approach is to first assess whether the conditions of a specific Article XX provision have been met, and only then determine whether the Chapeau’s requirements have been satisfied. See Appellate Body Report, US – Import Prohibition of Certain Shrimp and Shrimp Products, ¶ 118-119, WTO Doc. WT/DS58/AB/R (adopted Nov. 6, 1998)131 General Agreement on Tariffs and Trade 1994, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, Article XX(b), 1867 U.N.T.S. 187, [GATT 1994].132 See, e.g., Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres, WTO Doc. WT/DS332/AB/R (adopted Dec. 3, 2007).133 Appellate Body Report, European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, ¶ 157, WTO Doc. WT/DS135/AB/R (adopted April 5, 2001) (emphasis added). ‘Tending to show’ is a low evidentiary standard, requiring less than a preponderance of the evidence. See id. at ¶ 178.134 Id. at 178.135 See id. at 167.136 These include measures designed to combat the consumption of cigarettes, to protect dolphins, to reduce gasoline air pollution, to reduce health risks posed by asbestos fibers, and to reduce the incidence of life-threatening diseases resulting from the accumulation of waste tires. See Sonia Gabiatti, Trade-Related Environmental Measures Under GATT Article XX(B) and (G), at 31 (2009) (LL.M. dissertation, University of Iceland).137 Appellate Body Report, European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, ¶ 172, WTO Doc. WT/DS135/AB/R (adopted April 5, 2001)138 See Thomas J. Schoenbaum. International Trade and Protection of the Environment: The Continuing Search for Reconciliation, American Journal of International Law, vol. 91, No. 2, 268–313, 276–7 (1997) (“The ‘least trade restrictive’ interpretation turns the clause on its head; ‘necessary’ no longer relates to the protection of living things, but to whether or not the measure is a ‘necessary’ departure from the trade agreement, the GATT….This interpretation is wrong.”).139 See Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef, ¶ 164, WTO Doc. WT/DS161/AB/R, WT/DS169/AB/R (Adopted Jan. 10, 2001) (“In sum, determination of whether a measure, which is not ‘indispensable’, may nevertheless be ‘necessary’…involves in every case a process of weighing and balancing a series of factors which prominently include the contribution made by the compliance measure to the enforcement of the law or regulation at issue, the importance of the common interests or values protected by that law or regulation, and the accompanying impact of the law or regulation on imports or exports.”).140 See Id. at 162–163. Although this was stated with respect to the meaning of “necessary” under Article XX(d) rather than XX(b), the Appellate Body indicated in EC – Asbestos that it applies to both. See Appellate Body Report, European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, ¶ 171-172, WTO Doc. WT/DS135/AB/R (adopted April 5, 2001).141 See Id.142 See Id. at 162. In other words, measures are more likely to be justified when they serve important purposes effectively while presenting only limited obstacles to free trade.143 Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres, ¶ 151, WTO Doc. WT/DS332/AB/R (adopted Dec. 3, 2007) (emphasis added).144 Id. at 156.145 In fact, the level of protection chosen need not be based on a majority scientific opinion. See Appellate Body Report, European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, ¶ 178, WTO Doc. WT/DS135/AB/R (adopted April 5, 2001) (“A Member is not obliged, in setting health policy, automatically to follow what, at a given time, may constitute a majority scientific opinion. There, a panel need not, necessarily, reach a decision under Article XX(b) of the GATT 1994 on the basis of the ‘preponderant’ weight of the evidence.”).146 Used tires and tire material can often be recycled, for example by tire retreading. However, compared to a new tire, the life of a retreaded tire is generally shorter, ultimately leading to the faster accumulation of waste tires in an importing country than would be the case with the import of longer-life new tires. Brazil claimed that such accumulation of discarded tires would create health and environmental hazards by providing breeding grounds for mosquito-borne diseases such as dengue fever, yellow fever, and malaria, and that it would be technologically impossible to dispose of such tires in its vast territory without negative environmental and health-related consequences. See Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres, WTO Doc. WT/DS332/AB/R (adopted Dec. 3, 2007).147 For example, the European Communities argued that Brazil could have taken domestic measures such as promotion of public transportation to reduce the use of retreaded tires in passenger cars, and requiring the use of retreaded tires in government vehicles. See Panel Report, Brazil – Measures Affecting Imports of Retreaded Tyres, ¶ 7.160, WTO Doc. WT/DS332/R (circulated June 12, 2007).148 See Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres, ¶ 174, WTO Doc. WT/DS332/AB/R (adopted Dec. 3, 2007).149 General Agreement on Tariffs and Trade 1994, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, Article XX(g), 1867 U.N.T.S. 187, [GATT 1994].150 See, e.g., Appellate Body Report, US – Import Prohibition of Certain Shrimp and Shrimp Products, ¶ 131, WTO Doc. WT/DS58/AB/R (adopted Nov. 6, 1998). Previously recognized conservable resources include fish stocks, petroleum, clean air, and turtles. See Gabiatti, supra note 136, at 38-9.151 Id. at 141. A Panel has also noted that “Article XX(g) does not state how the trade measures are to be related to the conservation[.]” Panel Report, Canada – Measures Affecting Exports of Unprocessed Herring and Salmon, ¶ 4.5, WTO Doc. BISD 35S/98 (adopted March 22, 1988).152 See Panel Report, Canada – Measures Affecting Exports of Unprocessed Herring and Salmon, ¶ 4.6, WTO Doc. BISD 35S/98 (adopted March 22, 1988). This is because, unlike Article XX(b), Article XX(g) does not mention the term “necessary.”153 Id.154 See Panel Report, United States – Restrictions on Imports of Tuna, ¶ 5.28, WTO Doc. WT/DS21/R (circulated Sept. 3, 1991).155 Id. This decision was criticized, generating “an explosion of rhetoric in both learned journals and the popular press.” See Schoenbaum, supra note 138, at 269.156 Panel Report, United States – Restrictions on Imports of Tuna, ¶ 2.10, WTO Doc. WT/DS29/R (circulated June 16, 1994).157 Id. at 5.27.158 See id. at 5.20 (“the Panel could see no valid reason supporting the conclusion that the provisions of Article XX (g) apply only to policies related to the conservation of exhaustible natural resources located within the territory of the contracting party invoking the provision.”).159 Appellate Body Report, United States – Standards for Reformulated and Conventional Gasoline, 21, WTO Doc. WT/DS2/AB/R (adopted May 20, 1996).160 Schoenbaum, supra note 138, at 278 (“the question arises whether the ‘primarily aimed at’ interpretation of ‘relating to’ is correct. Certainly, these phrases are not synonymous. The ‘primarily aimed at’ requirement seems to be an unwarranted amendment of Article XX[.]”).161 Appellate Body Report, United States – Standards for Reformulated and Conventional Gasoline, 19, WTO Doc. WT/DS2/AB/R (adopted May 20, 1996).162 Id. at 20-21 (“the clause [in Article XX(g)] is appropriately read as a requirement that the measures concernedimpose restrictions, not just in respect of imported gasoline but also with respect to domestic gasoline. The clause is a requirement of even-handedness in the imposition of restrictions, in the name of conservation, upon the production or consumption of exhaustible natural resources”).163 Id. at 21.164 While domestic refiners were required to reduce pollutants against individualized baselines, foreign refiners were asked to reduce pollutants against a more demanding, uniform statutory baseline. See id.165 General Agreement on Tariffs and Trade 1994, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, Article XX, 1867 U.N.T.S. 187, [GATT 1994].166 The Chapeau focuses on the discriminatory application of a GATT-inconsistent measure, not only the measure itself. See, e.g., Appellate Body Report, US – Import Prohibition of Certain Shrimp and Shrimp Products, ¶ 160, WTO Doc. WT/DS58/AB/R (adopted Nov. 6, 1998) (“[T]he application of a measure may be characterized as amounting to an abuse or misuse…where a measure, otherwise fair and just on its face, is actually applied in an arbitrary or unjustifiable manner.”).167 While some WTO decisions have assessed arbitrary discrimination and unjustifiable discrimination separately, the two analyses appear identical; commentators have suggested that there is no real difference between the two. See Hailong Jia, A New Interpretive Approach to an Old Issue Under the WTO Turning the Chapeau of GATT Article XX Into a Wild Card for Greater Domestic Regulatory Autonomy, at 99 (2019) (Ph.D. dissertation, University of Illinois at Urbana-Champaign).168 Indeed, the vast majority of disputed measures were held to be illegal under the Chapeau even where the conditions of a specific Article XX exception were otherwise met. See infra, Part IV.169 See Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres, ¶ 227, WTO Doc. WT/DS332/AB/R (adopted Dec. 3, 2007).170 See Id.171 Id. at 228.172 Id. at 229 (“As we indicated above, analyzing whether discrimination is ‘unjustifiable’ will usually involve an analysis that relates primarily to the cause or the rationale of the discrimination. By contrast, the Panel's interpretation…does not depend on the cause or rationale of the discrimination but, rather, is focused exclusively on the assessment of the effects of the discrimination.”).173 Gracia Marin Duran, Measures with Multiple Competing Purposes After EC – Seal Products: Avoiding a Conflict Between GATT Article XX-chapeau and Article 2.1 TBT Agreement’, 19 (2) Journal of International Economic Law 467–495, 475 (2016).174 Id.175 See Appellate Body Report, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products (EC – Seal Products), ¶ 5.321 WTO Doc. WT/DS400/AB/R, WT/DS401/AB/R (adopted June 18, 2014). It has also been suggested that WTO decisions regarding discrimination in contexts other than Article XX(g), such as TBT Article 2.1, also support the conclusion that other rational
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