As we have seen, the LTRA test is appropriate to use for ETMs designed to protect the domestic environment, and the “means and ends” test is suitable for analyzing global-environment-oriented trade measures. In this regard, the AB&P have appropriately differentiated the use of the LTRA test from that of the “means and ends” test. However, we need a qualification about these. This paper has examined the circumstances under which the invocation of the LTRA or “means and ends” test is appropriate as a general analytical framework for making a “trade-off” between environmental and trade interests. What this paper has not done in detail is to analyze how to apply these tests in actual cases. In particular, we have not discussed how to determine the standard of “reasonable availability” in the LTRA test and the “disproportionately wide” standard in the “means and ends” test except to discuss the point that the magnitude of the environmental benefits achieved by ETMs should not be taken into account when deciding the reasonable availability of alternatives in applying the LTRA test. The actual posture of these tests vis-à-vis ETMs would vary depending on how the AB&P set the thresholds of “reasonableness” and “proportionality” in real disputes194 even though the AB&P have not clarified these points yet.195 These points would be left to future studies and cases to be elaborated.
However, some comments should be made with respect to the scopes of the SPS Agreement, the TBT Agreement, and GATT Article XX. The TBT Agreement and the SPS Agreement should not be applied to the measures aimed at protecting the global environment since both of them adopt the LTRA test as their “trade-off device”. According to Paragraph 1 of Annex A of the SPS Agreement, sanitary or phytosanitary measures are those designed to protect human or animal life or health within the territory of the Members. Therefore, it is reasonable to say that the scope of the SPS Agreement is limited to measures aimed at protecting the domestic environment. However, in the TBT Agreement, there are no provisions by which the scope of the TBT Agreement could be limited to ETMs aimed at protecting the domestic environment. Article 2.2 of the TBT Agreement provides that the legitimate objectives of technical regulations include “protection of human health or safety, animal or plant life or health, or the environment”. This provision implies that the protection of the global environment could be one of the legitimate objectives of technical regulations. This broad scope of the TBT Agreement could be problematic in future cases.
On the other hand, GATT Article XX would be flexible enough. In the context of ETMs aimed at protecting the global environment, Article XX (g) should be utilized. Article XX (g) would be able to include all the ETMs aimed at the global environment under its very broad purview. Even though some of the ETMs for the domestic environment protection also fall under the scope of Article XX (g), the LTRA test could be incorporated into the chapeau test. This flexibility was exemplified by the AB findings in Gasoline.