Out of Crooked Timber: The Consistency of Australia's Illegal Logging Prohibition Bill with the WTO Agreement

Environmental and Planning Law Journal, Vol. 29, 2012

U of Melbourne Legal Studies Research Paper No. 596

26 Pages Posted: 6 May 2012 Last revised: 25 Jul 2012

See all articles by Andrew D. Mitchell

Andrew D. Mitchell

University of Melbourne - Law School

Glyn Ayres

Melbourne Law School

Date Written: May 3, 2012

Abstract

This article examines whether a proposed measure that would prohibit the importation into Australia of illegally logged timber would be consistent with the WTO Agreement if passed by the Australian Parliament in its current form. The Illegal Logging Prohibition Bill 2011 (Cth) would prohibit the importation of timber harvested in contravention of the laws of its country of origin, including timber in manufactured products such as furniture. Importers would also be required to comply with certain due diligence requirements, such as assessing the risk that their imports contained illegally logged timber. The Bill is patterned on similar measures adopted by the United States and the European Union and is part of a global movement to combat illegal logging. However, by conditioning entry into the Australian market solely on whether timber was harvested legally, the Bill raises clear issues under the WTO Agreement. In particular, the Bill is likely to lead to differential treatment of like products from different countries, contrary to the Most-Favored-Nation obligations in Article I of the GATT 1994. Moreover, as a restriction on imports the Bill is likely to contravene GATT Article XI. Finally, because the logging laws of countries differ from each other in ways that may not correspond to sound environmental practice, it is unlikely that the Bill could be justified under GATT Article XX because it would lead to arbitrary or unjustifiable discrimination between products. An ancillary difficulty under Article XX is that there is evidence that the Bill will not contribute significantly to a net reduction in illegal logging, meaning it would be unlikely to pass a ‘necessity’ test. Although it might be thought that the Bill could fall under the TBT Agreement as well as the GATT 1994, it is unlikely to do so because it does not lay down physical product characteristics or production methods. However, if the TBT Agreement does apply, the Bill is likely to be inconsistent with it for similar reasons to its inconsistency with the GATT 1994. Ultimately, Australia may wish to consider reformulating the Bill so that it more accurately and effectively targets environmentally destructive logging practices and unfair competition against which the Australian government seeks to protect.

Keywords: illegally logged timber, illegal logging, WTO, GATT, TBT

JEL Classification: K33, F13, Q17, Q23

Suggested Citation

Mitchell, Andrew D. and Ayres, Glyn, Out of Crooked Timber: The Consistency of Australia's Illegal Logging Prohibition Bill with the WTO Agreement (May 3, 2012). Environmental and Planning Law Journal, Vol. 29, 2012; U of Melbourne Legal Studies Research Paper No. 596. Available at SSRN: https://ssrn.com/abstract=2050665

Andrew D. Mitchell (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia
+61383441098 (Phone)
+61393472392 (Fax)

HOME PAGE: http://www.law.unimelb.edu.au/staff/Andrew%20Mitchell

Glyn Ayres

Melbourne Law School ( email )

University Square
185 Pelham Street, Carlton
Melbourne, Victoria 3010
Australia

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