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Environmental Claims Journal
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The Clothes (Un)Make the Man: How the Textile
Quota Phase-out Wears-out the Planet
Tal Avrhami
To cite this article: Tal Avrhami (2023) The Clothes (Un)Make the Man: How the Textile
Quota Phase-out Wears-out the Planet, Environmental Claims Journal, 35:1, 17-51, DOI:
10.1080/10406026.2022.2160428
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The Clothes (Un)Make the Man: How the Textile Quota
Phase-out Wears-out the Planet
Tal Avrhami
Columbia Law School, Law School
ABSTRACT
The 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 glo-
bal 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’phe-
nomenon, and exacerbated the environmental consequences
that accompany it. In addition, it assesses the legal viability of
reintroducing some form of textile quotas under current inter-
national trade law. Based on this analysis, it concludes that
reforms in trade-related policy and jurisprudence are urgently
needed and ultimately inevitable.
Introduction
The textile sector is both the second-largest industrial consumer
1
and
polluter
2
of water, using some 100 trillion liters each year
3
and bearing
responsibility for about one-fifth of all industrial water pollution.
4
It like-
wise accounts for one-fifth of mixed waste worldwide
5
and, while uncer-
tain, some estimates are that the sector is responsible for up to 10% of
global greenhouse gas (GHG) emissions.
6
The fashion industry has also
ß2022 Taylor & Francis Group, LLC
CONTACT Tal Avrhami ta2639@columbia.edu Columbia Law Review, Law School, New York, NY 10027-
7237, USA
This article has been corrected with minor changes. These changes do not impact the academic content of
the article.
1
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
ENVIRONMENTAL CLAIMS JOURNAL
2023, VOL. 35, NO. 1, 17–51
https://doi.org/10.1080/10406026.2022.2160428
been linked to a wide range of other environmental concerns including
deforestation,
7
microplastic pollution,
8
deterioration of human and animal
health,
9
and biodiversity loss.
10
Despite this, the matter has merited far less attention than other major
polluting industries.
11
While awareness of fast fashion’s harmful effects on
the environment has increased in recent years,
12
the dearth of literature
discussing the environmental impacts of textile lifecycles –even cursorily –
is especially notable within the realm of legal scholarship.
13
As a result of
this nescience, the literature that does exist often features conflicting, mis-
leading, or inaccurate data that render problems in the sector even harder
to remedy.
14
Nevertheless, it is clear that the fashion industry’s activities inflict tre-
mendous harm to the environment on a global scale. At the outset, it is
important to note that the production process of apparel is complex and
highly fragmented.
15
Each stage –cultivating raw materials, spinning them
into yarn, weaving yarn into fabric, cutting, sewing, dyeing, finishing, ship-
ment, consumer use, and disposal –has its own environmental impact,
16
making it difficult to draw broad conclusions without simplifying to some
extent.
17
The challenge is also compounded by the fact that different types
of fibers correspond with different forms and degrees of environmental
side-effects.
18
On top of that, the environmental impact of each stage can
6
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-impact
15
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.
18 T. AVRHAMI
vary by location,
19
and the lifecycle stages of garments are often geograph-
ically dispersed.
20
Still, current research provides insight into the state of the industry as a
whole, allowing for a big-picture overview of its environmental repercus-
sions as well as the policies that enable them. Part I aims to introduce and
assess how a major change in global trade policy –the textile quota phase-
out –has contributed to the rise of ‘fast fashion’and the environmental
consequences that accompany it. Part II provides an overview of current
efforts undertaken to address those consequences, while parts III and IV
examine potential trade-based solutions, and the legal framework within
which they must be implemented. Part V concludes.
Part I: the role of the quota phase-out
Historical background
Textile production is distinguishable from (some) other industrial sectors
in that it is very labor-intensive, but requires only limited capital and tech-
nology. As a result, it tends to have few barriers to entry, making it an
attractive option for countries with little capital but large unemployed pop-
ulations.
21
Indeed, development of the textile industry marked the onset of
the industrial revolutions in Europe and the United States, and has played
a similar role in other nations around the globe.
22
As industrialization became more widespread throughout the world dur-
ing the 20
th
century, more and more countries became capable of mass tex-
tile production. The resulting global overcapacity for this production led
major industrialized nations to protect their local industries by restricting
textile trade, most notably via the imposition of quotas on textile exports
from developing countries.
23
These restrictions initially applied only to cotton products, leading
nations to export growing volumes of manufactured fibers not subject to
them.
24
In order to address this emerging reality, a multilateral agreement
known as the Multi-fiber Arrangement (MFA) became effective under the
1974-version of the General Agreement on Tariffs and Trade (GATT), and
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,11ST.JOHN’SJ. 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.
THE CLOTHES (UN)MAKE THE MAN 19
was originally intended to last for a period of four-years.
25
Article 1.2 of
the MFA stated that its objective was “to achieve the expansion of trade-
…while at the same time ensuring the orderly and equitable development
of this trade …in both importing and exporting countries.”
26
Despite the stated purpose of achieving the “expansion of trade,”the
MFA in fact limited trade in textiles, taking after its name by extending
quota restrictions to encompass manufactured fibers, as well as other nat-
ural fibers such as wool.
27
These quotas were established through bilateral
agreements, generally applied to exports rather than imports, and varied
significantly by country (depending primarily on the extent to which its
products were considered threats to the industry of developed nations).
28
Although the MFA was originally intended to last only four years, major
industrialized countries pressed for subsequent extensions, the first of
which extended the agreement from 1977-1981 and expanded its restric-
tions.
29
The MFA was renewed several more times between 1981 and 1993,
with each renewal involving changes to the agreement, often in the form of
expanded product coverage and state signatories (China, for example,
joined the MFA by its third iteration in 1981).
30
The expansion and exten-
sion of the MFA prompted developing exporting countries to push back
against the policy,
31
eventually leading to the Uruguay Round Agreement
on Textiles and Clothing (ATC) in 1995.
32
The ATC was designed to gradually phase out the MFA in several stages,
ultimately ending the specialized treatment of textile trade by 2005.
33
The
integration of the textile sector into the general trade rules applicable to all
other sectors has led to several changes in global textile trade trends. As a
2016 report points out, trade volume in clothing and textiles has increased
more rapidly than the average for all world trade, with clothing trade
increasing at a higher rate than general textile trade since the MFA/ATC’s
expiration.
34
Indeed, global clothing production has approximately doubled
over the last 20 years.
35
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.P
A.J.INT’LECON. 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.
20 T. AVRHAMI
How the quota phase-out has affected the fashion industry’s environmental
repercussions
To date, little has been written about the environmental consequences of
the textile quota phase-out, and there seem to be no publications dedicated
to assessing this inquiry.
36
Nevertheless, some literature provides insight
into the general repercussions of the quota phase-out on the textile indus-
try, and, by extension, the environment.
Labor costs, consumer prices, and globalization
The first and most obvious effect of the MFA’s expiration is the incentiv-
ization of outsourcing based on competitive labor costs, leading to acceler-
ated globalization.
37
Since apparel production is so highly dependent
specifically on labor, its cost has become one of the chief considerations for
sourcing in the post-MFA era.
38
Without quota limitations, retailers are
now free to source their apparel from whichever country provides the
cheapest labor.
39
And the price of labor can vary enormously: as of 2014,
hourly labor costs in the textile industry averaged $0.62 USD in
Bangladesh, $1.12 in India, $2.65 in China, and $17.71 in the US.
40
Indeed,
developing countries contributed only 25% of worldwide apparel exports in
the mid-1960s, but this increased to more than 70% as of 2014.
41
The US,
for instance, produced a majority of its clothing as recently as 1991, but
now produces less than 3% domestically.
42
The increased geographic dispersion inherent in modern apparel produc-
tion contributes to a number of harmful social and environmental conse-
quences. For one thing, it results in higher levels of transportation. While
minor compared to the impact at other stages in textile lifecycles (currently,
at least), increasing amounts of clothing are being shipped through air
cargo, which is drastically more carbon-intensive than traditional ship-
ping methods.
43
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%204
41
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.
THE CLOTHES (UN)MAKE THE MAN 21
More importantly, the globalization of apparel production following the
MFA’s expiration intensified competition among clothing exporters.
44
This
has led to a ‘race to the bottom’
45
in which producers are pressured to con-
stantly lower their prices in order to keep up with cheap labor costs in
other developing countries. As a result, the average price of clothing has
fallen relative to the prices of other consumer goods.
46
US buyers, for
example, saw the real price of apparel fall 44% between 1994 and 2017,
47
while the price of clothing dropped by about 50% in the UK market
between 1995 and 2014.
48
Lower prices for consumers in wealthier countries mean lower wages for
garment workers (the vast majority of whom are women) in poorer coun-
tries, obscuring labor conditions and exacerbating concerns over human
rights and environmental justice.
49
For instance, despite calls for improved
labor conditions prompted by 2013s Rana Plaza disaster in Bangladesh,
lead retailer firms paid 13% less to Bangladeshi suppliers in the following
five years.
50
Similarly, a coalition of more than 180 human rights groups
has raised serious concerns over forced labor in the industry (particularly
amongst Xinjiang’s Uyghur population). It estimates that as many as one
in five cotton products are “virtually certain”to be tainted with human
rights violations.
51
Indeed, globalization in the fashion industry makes it exceedingly diffi-
cult to address both environmental and social concerns
52
because it is chal-
lenging for downstream manufacturers (let alone retailers and consumers)
to know where the raw materials come from or how they were processed.
53
In addition, the fragmented nature of globalized supply chains makes it
impossible to properly assess environmental impact.
54
And, since the
majority of global clothing production now occurs in developing countries,
those countries bear the brunt of the harmful environmental side-effects.
55
In Cambodia, for example, the fashion industry has caused an estimated
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.
22 T. AVRHAMI
60% of water pollution
56
40% higher than the global average –and has
exacerbated water scarcity in other major textile-producing countries.
57
Similarly, instances of pesticide poisoning (pesticides are commonly used
in cotton cultivation, as discussed in Part IV) tend to be more common in
Asia’s textile-producing countries than elsewhere.
58
Lead times and quality
With labor costs driven ever-lower following the textile sector’s entry into
a free trade regime, another increasingly important sourcing consideration
is lead time, i.e., the speed with which clothing can be produced and
sold.
59
Demand for cheap clothing in a free apparel market has increasingly
pressured producers in low-income countries to decrease both prices and
lead times,
60
enabling the proliferation of ‘fast fashion.’
61
Indeed, compa-
nies such as Zara and H&M have managed to reduce production lead times
from months to weeks.
62
Among all European apparel companies, the aver-
age number of clothing collections
63
more than doubled in the ATC’s
wake, from two a year in 2000 to about five in 2011.
64
Once the fabric is
ready, the rest of the process –from sewing in Asia to final sale in Europe
–can now take as little as 12-14 days.
65
Unfortunately, both the accelerated pace of clothing production, as well
as the concentration of that production in lower-income countries, can
exacerbate the fashion industry’s environmental repercussions. Some
research has suggested, rather intuitively, that the faster an article of cloth-
ing is produced, the more likely it is to result in higher levels of pollu-
tion.
66
And, since environmental standards are often laxer in developing
nations, apparel produced in those countries can tend to have greater
environmental repercussions. Chemicals used in textile dyeing, for example,
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 jDW 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.
THE CLOTHES (UN)MAKE THE MAN 23
are strictly regulated in the US and Europe, but still freely used within the
industry of developing nations.
67
Similarly, wastewater treatment is com-
mon practice in Europe, but other textile-producing countries pump waste-
water directly into water bodies.
68
This is often the case in terms of
emissions as well; textiles produced in China, for example, have a 40%
larger carbon footprint as compared to those produced in Europe.
69
Along with decreased prices, the quota phase-out also spurred a decrease
in the average quality of clothing, in part because exporters operating
under a quota are more likely to produce pricier, higher-quality garments.
70
The increase in clothing production coupled with decreased prices, lower
quality, and faster lead times has also affected consumer behavior, resulting
in increased purchasing but decreased use of purchased garments.
According to the United Nations Environment Programme, the average
consumer bought 60% more articles of clothing in 2019 as compared to
2004, but kept them only half as long.
71
In the US, for example, the average
consumer now purchases one new item of clothing every 5.5 days, while
the average duration of garment-use has decreased 36%.
72
This is signifi-
cant in light of findings that extending the active life of clothing by nine
months is estimated to reduce carbon, waste, and water footprints by
20-30%.
73
Shortened garment lifetimes and increased consumption led to a 40%
increase in landfilled textile waste in the USA between 1999 and 2009; tex-
tiles now account for up to 22% of mixed waste worldwide.
74
This is espe-
cially perplexing because much of the apparel is never sold, let alone worn.
For example, there are reports that as much as a third of all imported
clothing in the EU is never sold, and is instead sent straight to a landfill or
incinerated.
75
Even clothes that are purchased may never see actual use; the
World Bank has stated that, in some countries, 40% of purchased clothing
is never worn,
76
and it is estimated that more than half of ‘fast fashion’
apparel is disposed of in under a year.
77
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,ANEW TEXTILES ECONOMY:REDESIGNING FASHION’SFUTURE, 36 (2017).
24 T. AVRHAMI
On the whole, global trade in textiles has increased significantly over the
last 60 years, from roughly $6 billion in 1962
78
to $100 billion in 2020.
79
Apparel trade specifically has grown more rapidly than general textile trade;
apparel exports now constitute more than half of all textile exports, nearly
three-quarters of which are accounted for by developing countries.
80
From
a more recent perspective, global clothing sales doubled between 2000 and
2015,
81
and apparel now accounts for more than 70% of global tex-
tile products.
82
The precise environmental repercussions of the quota phase-out may not
be possible to identify. Nevertheless, its demonstrated impact on price
decreases, quality downgrading, and globalized production indicate that it
has played a significant part in the growing environmental consequences of
fast fashion. Indeed, while the environmental implications of the MFA’s
expiration have merited virtually no attention in current literature,
83
gen-
eral concerns over apparel production have elicited some responses.
Part II: Current efforts and the need for a global approach
Textile sustainability –particularly in the context of fast fashion –has
gained increasing attention in recent years,
84
leading to a wide range of ini-
tiatives designed to alleviate environmental concerns. Such measures
include recycling, use of more eco-friendly fibers and processes, private
‘sustainable brands,’and domestic regulation. However, the large variety of
actions being taken can obscure their limited efficacy, leading to concerns
over ‘greenwashing’
85
within the industry.
86
Indeed, while many of the cur-
rent approaches can be helpful, their usefulness is often limited in context
of the challenges posed by a highly globalized and fragmented industry.
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.asp
86
See infra, notes 106–108.
THE CLOTHES (UN)MAKE THE MAN 25
Recycling
Recycling, for example, often sounds like a promising solution, but less than
12% of the material used for clothing is recycled,
87
with under 1% actually
converted into new clothing.
88
This is due to a number of reasons, including
the fact that clothing made from multiple fibers is difficult to recycle;
89
a
typical jacket, for example, contains 25 different components, many of which
are comprised of different materials themselves.
90
Further, many of the base
components used can render products unsuitable for recycling altogether, as
most existing methods cannot separate dyes or other contaminants from the
original fibers.
91
As a result, roughly 85% of all textiles in the US end up in
a landfill or incinerated; by weight, textiles in the municipal solid waste
stream increased 78% from 2000-2017.
92
Globally, the equivalent of a gar-
bage truck full of clothes is discarded every second.
93
Even when apparel is successfully reused, much of it occurs outside the
country in which it was purchased
94
as roughly 60% of recovered wearable
clothes are exported to other nations.
95
The excessive importation of sec-
ondhand garments from wealthier countries to developing countries can
undermine local industries in the latter while also creating superfluous waste.
96
Indeed, this concern –sometimes referred to as ‘textile dumping’
97
–
has prompted some nations to impose restrictions on such imports.
98
Sustainable sourcing and processing
As noted earlier, the environmental impact of a given textile is heavily
determined by the type of fiber from which it is composed,
99
and efforts
are being made to make clothes from more eco-friendly materials.
100
There
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).
26 T. AVRHAMI
is a broad range of such materials, including hemp, linen, bamboo, organic
cotton, and mushroom-based fibers.
101
Yet despite the large number of
seemingly appealing alternatives to traditional fibers and processing meth-
ods, their use and viability are rather limited.
Organic cotton, for example, can reduce freshwater consumption by
91%, acidification by 70%, primary energy demand by 62%, global warming
potential by 46%, and soil eutrophication by 26% as compared to conven-
tional cotton cultivation.
102
Yet organic cotton accounts for less than 1% of
all cotton produced globally,
103
and it is extremely difficult to scale because
it produces lower yields than conventional cotton.
104
Even its touted advan-
tages can be misleading –it’s true that organic cotton is far less freshwater-
intensive per plant, but lower yields mean more plants (and land) are
required to produce the same amount of fiber. It has even been suggested
that significantly more water is needed to produce a t-shirt made from
organic cotton than conventional cotton.
105
This sort of misleading or incomplete information has become highly
prevalent in fashion marketing; indeed, ‘green advertising’increased more
than tenfold in the last few decades.
106
One report shows that the number
of ‘green’products increased 77% over a one-year period, finding that 95%
of those products used greenwashing tactics in their marketing;
107
another
recently concluded that sustainable ‘certifications’were “unambitious, opa-
que, unaccountable and compromised.”
108
Zara’s use of labels certified by the Forest Stewardship Council (FSC)
provides a particularly striking example of the greenwashing phenomenon.
According to its website, FSC trademarks “provide a guarantee to consum-
ers that the products they buy come from responsible sources[.]”
109
Yet the
FSC label on Zara’s clothes often refers to the materials from which the tag
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).
THE CLOTHES (UN)MAKE THE MAN 27
is made of, not the clothing article itself.
110
Even brands (such as Patagonia
and People Tree) that make a genuine effort to implement sustainable prac-
tices offer limited solutions on a global scale because the more sustainable
they are, the less scalable they tend to be.
111
Domestic regulation
The proliferation of greenwashing has prompted some European countries
to begin addressing the pervasive lack of transparency in apparel supply
chains. The Norwegian Consumer Authority, for instance, has demanded
greater clarity from some major brands concerning their environmental
footprint.
112
In 2015, the UK’s Modern Slavery Act made it the first coun-
try in the world to require businesses to report their progress in identifying
and addressing modern slavery risks in their operations and supply
chains.
113
Similarly, France has developed a scoring system to grade the
environmental impact of fashion items, and may soon require brands to
display their ratings on products sold in the country.
114
Work on a social
score is underway as well, and its “Devoir de Vigilance”law compels busi-
ness with more than 5,000 employees to state the social and environmental
risks linked to their activities.
115
Efforts outside of Europe are beginning to emerge as well. In the US,
New York recently unveiled the Fashion Sustainability and Social
Accountability Act. If passed, the bill will require major companies selling
apparel in New York to map at least 50% of their supply chain, disclose
their greatest social and environmental impacts, and set emission reduction
targets or else be fined 2% of their annual revenue.
116
And in 2018, private
fashion companies and NGOs collaborated to form the global Fashion
Charter for Climate Action.
117
Similar to the Paris Agreement, signatories
must commit to reducing greenhouse gas emissions 30% by 2030 and
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,G
A.J.INT ’L&COMP. L. 49, 407, 419–20 (2021).
28 T. AVRHAMI
achieving carbon-neutrality by 2050; also like the Paris Agreement, these
commitments are non-binding.
118
While such actions are promising, they focus on transparency and dis-
closure; there is far less progress in terms of actual regulatory constraints
on companies’operations.
119
Even when such regulations are imposed,
their domestic nature allows companies to avoid responsibility by out-
sourcing production to suppliers that are not subject to them.
120
Taking
the actions necessary to fully address both the social and environmental
costs of textile operations will therefore require global collaboration.
121
In
addition, because sustainable apparel production is currently impossible
to scale,
122
the solution must necessarily involve a decrease in overall pro-
duction; the aim cannot be to buy better, but to buy (and produce)
less.
123
Given the ATC’s role in exacerbating environmental concerns in the
fashion industry, a (gradual) reintroduction of textile trade quotas stands to
facilitate this aim by reducing overall global apparel production. Less raw
material would be cultivated, resulting in lower consumption of water and
energy, as well as decreased pesticide usage and GHG emissions. Less fabric
would need to be dyed as well, reducing wastewater pollution and chemical
usage. And, since the average price and quality of clothing would increase,
garments might be kept longer and used more frequently, leading to lower
levels of waste and overall environmental impact. While the practical impli-
cations of a textile quota ‘phase-in’are considered in Part IV, it is first
worth examining the legal viability of such a measure under international
trade law.
Part III: the GATT’s‘environmental exceptions’
The World Trade Organization (WTO) came into being on January 1
st
,
1995. It was established pursuant to the Marrakesh Agreement, which
marked the culmination of the Uruguay Round and integrated an updated
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,27HASTINGS
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.
THE CLOTHES (UN)MAKE THE MAN 29
version of the GATT, known as the GATT-1994.
124
The organization oper-
ates under a series of international agreements that collectively make up
the WTO’s rules, whose enforcement can be sought through the Dispute
Settlement Body (DSB).
125
Though the dispute settlement procedures are
complex, two of its components are particularly relevant here: the WTO
Panels and the Appellate Body. When trade-related disputes arise, the DSB
has authority to establish an ad-hoc panel of 3-5 experts to adjudicate
them.
126
If a panel’s decision is appealed, the challenged legal issues are
reviewed by the Appellate Body (composed of seven permanent members),
which may uphold, reverse, or modify a Panel’s findings.
127
As its name implies, Article XI of the GATT-1994 –entitled General
Elimination of Quantitative Restrictions –prohibits the use of quotas in
international trade. Specifically, it provides that “no prohibitions or restric-
tions other than duties, taxes or other charges …made effective through
quotas …shall be instituted or maintained by any contracting party[.]”
128
Reintroducing some form of the MFA’s textile trade quotas would therefore
seem presumptively invalid. Nevertheless, it may be permissible under one
of the GATT’s exceptions.
Article XX (General Exceptions) of the GATT lists several trade-restrict-
ive measures that are exempt from the GATT’s general provisions, includ-
ing Article XI’s elimination of quantitative restrictions.
129
Two of these –
Article XX(b) and XX(g) –are known as the ‘environmental exceptions,’
and apply to measures undertaken to either protect health or to conserve
exhaustible natural resources. While each of Article XX’s listed exceptions
specify the conditions under which they may apply, their invocation must
also meet the requirements set forth in its introductory clause, known as
the Chapeau (discussed below).
130
Although trade-restrictive measures may
potentially be justified under other provisions in the GATT, this article will
only examine justifications based on one of Article XX’s environmen-
tal exceptions.
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)
30 T. AVRHAMI
Measures necessary to protect human, animal or plant life or health
Article XX(b) of the GATT allows for quantitative restrictions “necessary to
protect human, animal or plant life or health.”
131
Important decisions
issued by the DSB have led to the development of a ‘necessity test’used to
determine whether a measure meets the definition of “necessary”as used in
Article XX(b). The test consists of two parts. First, the policy objective pur-
sued by the GATT-inconsistent measure must be the protection of life or
health of humans, animals or plants; second, the measure must be neces-
sary to fulfill those policy objectives.
132
In determining whether a given health risk is encompassed by Article
XX(b), the Appellate Body in EC –Asbestos affirmed a Panel’s holding that
the inquiry considers whether “the evidence …tends to show …that [it]
constitutes a risk to health rather than the opposite.”
133
This is a low evi-
dentiary standard requiring even less than a “‘preponderant’weight of the
evidence”
134
nor a quantification of the risks to life or health;
135
indeed,
there are now several health risks that the DSB has recognized under
Article XX(b).
136
As to the second element (i.e., whether a measure is “necessary”to fulfill
a policy objective), “the question …is whether there is an alternative meas-
ure that would achieve the same end and that is less restrictive of trade
than a prohibition.”
137
This interpretation has rendered Article XX(b) more
difficult to invoke, and has been criticized as plainly “wrong.”
138
In any
case, the Appellate Body’s opinion in Korea –Beef has framed the inquiry
as a balancing test involving three considerations.
139
First is the importance
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
THE CLOTHES (UN)MAKE THE MAN 31
of the values sought to be protected by the measure; second is the contri-
bution of the measure those values; third is the extent to which the meas-
ure produces restrictive effects on international commerce.
140
In terms of the first two considerations, the “more vital or important
[the] common interests or values pursued”by the measure, and the more it
“contributes to the realization of the end pursued …the more easily [it]
might be considered to be ‘necessary.’”
141
As such, a “measure with a rela-
tively slight impact upon imported products might be more easily consid-
ered as ‘necessary’than a measure with intense or broader restrictive
effects.”
142
Further, a measure may be considered necessary even if its pre-
cise contribution is uncertain so long as it “is apt to produce a material
contribution to the achievement of its objective.”
143
As to whether a less restrictive measure is “reasonably available,”any alter-
native must “preserve for the responding Member its right to achieve its
desired level of protection with respect to the objective pursued.”
144
In other
words, the desired level of protection for which a measure is necessary is
chosen by the country implementing a GATT-inconsistent measure.
145
For example, in Brazil –Retreaded Tyres, Brazil placed an import ban on
retreaded tires due to the health risks posed by the country’s over-accumu-
lation of such tires.
146
The European Communities (EC) complained that
the measure was inconsistent with the GATT, and that less restrictive
measures
147
could be implemented to address Brazil’s health concerns such
139
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
32 T. AVRHAMI
that Article XX(b) could not be used to justify the ban. The Appellate Body
held that alternative measures suggested by the EC would not accomplish
Brazil’s goal of reducing the risk posed by the disposal of retreaded tires to
the same extent as a categorical import ban. Accordingly, the ban was held
to satisfy the requirements of the necessity test. That is, (a) its goal was to
protect life and health, and (b) the measure was necessary to achieve this
goal since there was no reasonably alternative measure that could achieve it
“to the maximum extent possible.”
148
Measures relating to the conservation of exhaustible natural resources
Article XX(g) permits GATT-inconsistent trade restrictions “relating to the
conservation of exhaustible natural resources if such measures are made
effective in conjunction with restrictions on domestic production or con-
sumption.”
149
There are therefore three conditions that must be met when
invoking this exception: (1) the measure involves something that is consid-
ered an exhaustible natural resource; (2) the measure relates to the conser-
vation of that resource; and (3) the measure is made effective in
conjunction with domestic restrictions.
The first of these is easily satisfied, as the phrase “exhaustible natural
resource”has been interpreted quite broadly to refer to both living and
non-living resources, even if they are not endangered or rare.
150
As to the
second, the Appellate Body stated that a measure “relates”to the conserva-
tion of a natural resource if the relationship between the measure and the
intended conservation is “observably a close and real one.”
151
Further, a
Panel determined that “a trade measure did not have to be necessary or
essential to the conservation of an exhaustible natural resource”in order to
qualify for the exception.
152
Instead, a measure must “be primarily aimed
at the conservation of an exhaustible natural resource to be considered as
‘relating to’conservation within the meaning of Article XX(g).”
153
The
147
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.
THE CLOTHES (UN)MAKE THE MAN 33
precise meaning and significance of “primarily aimed,”in turn, has been
the subject of some attention in WTO jurisprudence.
In the US –Tuna cases, the Marine Mammal Protection Act (MMPA)
prohibited the importation of commercial fish caught with technology that
resulted in the incidental “taking”(i.e., killing or injury) of ocean mammals
in excess of US standards. Those standards were based on the US’own tak-
ing rates within the same time period, making it impossible for exporters
to know whether the standards were met when the takings occurred.
154
A
WTO Panel determined that a restrictive trade measure supported by such
“unpredictable conditions”cannot be considered “primarily aimed”at the
conservation of a resource.
155
In addition, the MMPA prohibited imports
from countries that did not maintain a regulatory program “comparable to
that of the United States.”
156
A Panel held that “measures taken so as to
force other countries to change their policies, and that were effective only
if such changes occurred, could not be primarily aimed [at the conservation
of a resource].”
157
Notably, however, that Panel also concluded that the provisions of
Article XX(g) did not apply only to resources located within a country
seeking to implement a GATT-inconsistent measure, and could also apply
to the conservation of resources located elsewhere.
158
In addition, measures
can qualify for this exception even if “a substantial period of time, perhaps
years, may have to elapse before the effects …may be observable.”
159
Nevertheless, the interpretation of “related to”as meaning “primarily
aimed at”has made it difficult for countries to invoke the Article XX(g)
exception, and has been criticized as an “unwarranted amendment”of
Article XX.
160
Even the Appellate Body pointed out that “the phrase
‘primarily aimed at’is not itself treaty language and was not designed as a
simple litmus test for inclusion or exclusion from Article XX(g).”
161
The
precise approach appropriate for assessing compliance with the second
requirement of Article XX(g) is therefore unclear.
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).
34 T. AVRHAMI
As mentioned above, the final condition set forth in Article XX(g) is that
the GATT-inconsistent measure be made effective in conjunction with
domestic restrictions. The Appellate Body has clarified that this amounts to
“a requirement of even-handedness in the imposition of restrictions …-
upon the production or consumption of exhaustible natural resources.”
162
However, while “even-handedness”requires countries to undertake domes-
tic measures in conjunction with a GATT-inconsistent measure, “there is
no textual basis for requiring identical treatment of domestic and imported
products.”
163
Thus, when the US Environmental Protection Agency estab-
lished separate environmental standards for domestic and imported gas-
oline, the Appellate Body held that Article XX(g)’s requirements were met.
This was true despite the fact that the standards for imported gas were
stricter than those imposed on domestic gas refiners.
164
The Chapeau
In addition to meeting the conditions specific to each provision of Article
XX, a GATT-inconsistent measure must also conform to the requirements
of Article XX’sChapeau. The Chapeau states that all of the listed excep-
tions are “[s]ubject to the requirement that such measures are not applied
in a manner which would constitute a means of arbitrary or unjustifiable
discrimination between countries where the same conditions prevail, or a
disguised restriction on international trade.”
165
Thus, three conditions must be met in order for any measure to be justi-
fied under Article XX: (a) the measure must not be applied
166
in a manner
that constitute a means of arbitrary discrimination, (b) nor a means of
unjustifiable discrimination,
167
nor (c) a disguised restriction on inter-
national trade. This has proven to be a major obstacle to the successful
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).
THE CLOTHES (UN)MAKE THE MAN 35
invocation Article XX, as the WTO judiciary has interpreted the Chapeau’s
requirements quite strictly.
168
For example, while Brazil’s import ban on retreaded tires was held to sat-
isfy the requirements of Article XX(b) –i.e., the ban was “necessary”to
meet its objective of protecting life and health –it failed to meet the
requirements of the Chapeau. This was because Brazil did not apply the
ban to imports from a trade-bloc of South American countries known as
“Mercosur.”
169
This was held to constitute “arbitrary discrimination”under
the Chapeau, despite the fact that Brazil exempted Mercosur imports from
the ban only in order to comply with a tribunal’s ruling.
170
The Appellate
Body held that complying with the tribunal’s ruling “is not an acceptable
rationale for the discrimination, because it bears no relationship to the
legitimate objective pursued by the Import Ban that falls within the pur-
view of Article XX(b)[.]”
171
Thus, while the Chapeau prohibits only arbitrary (or unjustifiable) dis-
crimination, the decision in Retreaded Tyres indicates that arbitrariness can
only be avoided when the rationale provided relates to the objective of the
GATT-inconsistent measure. Other rationales –however compelling –can-
not be used to render a discriminatory measure non-arbitrary.
Furthermore, the Appellate Body reversed a Panel’s holding that Brazil’s
exemption of Mercosur countries from its import ban would constitute
unjustifiable discrimination only if “the objective of the measure at issue
would be significantly undermined.”
172
Thus, illegal discrimination can
exist even if it does not undermine the objective of a trade-restrict-
ive measure.
Retreaded Tyre’s conclusion that rationales unrelated to a measure’s
objective cannot be used to render discrimination non-arbitrary has been
criticized as “excessively rigid and rather senseless.”
173
After all, “when an
exception is inserted to balance between competing policy purposes, its
underlying rationale will not only differ from but necessarily go against the
objective justifying the general (trade-restrictive) rule.”
174
In other words,
measures containing exemptions could hardly satisfy the Chapeau’s
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.
36 T. AVRHAMI
requirements under Retreaded Tyres because exceptions, by nature, tend to
push against general objectives.
Importantly, however, a later decision issued by the Appellate Body in
EC –Seal Products suggests a somewhat laxer approach that could take
other rationales into account.
175
In that case, the Appellate Body explained
that “the relationship of the discrimination to the [purported] objective of
a measure is one of the most important factors, but not the sole test that is
relevant to the assessment of arbitrary or unjustifiable discrimination.”
176
The approach taken in EC –Seal Products thus appears in tension with the
Appellate Body’s holding in Retreaded Tyres, and it is therefore unclear
what sort of rationales may or may not justify discrimination under Article
XX’sChapeau.
Another expansion of the Chapeau’s requirements can be found in the
famous Shrimp-Turtle decision. In that case, the US required shrimp
trawlers to use turtle exclusion devices (“TEDs”) in their nets when fishing
in areas where there was a significant likelihood of encountering sea turtles.
A law passed by the US Congress (16 U.S.C. § 1537) prohibited the import
of shrimp harvested with technology that might adversely affect certain tur-
tles (subject to certain exceptions), in effect requiring all imported shrimp
to have been caught using TEDs. As in US –Tuna, the US also effectively
required countries to employ a regulatory program comparable to its own
before accepting their shrimp exports.
177
While the Chapeau prohibits discrimination “between countries where
the same conditions prevail,”the Appellate Body held that it is also prohib-
ited between countries where different conditions prevail if those conditions
are not taken into account when applying a uniform regulatory program.
178
Accordingly, the measure was held invalid because the US effectively
required countries to adopt “essentially the same comprehensive regulatory
regime …even though many of those Members may be differently
situated.”
179
Finally, the Appellate Body has determined that unilateral measures will
be deemed a violation of the Chapeau when they are imposed without prior
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 rationales can be used to justify
discrimination. See Jia, supra note 167, at 190-94.
176
Id. (emphasis added). Subsequent decisions have been inconsistent in applying Seal Product’s approach to
the scope of rationales capable of justifying discrimination as non-arbitrary. See infra, notes 251, 253.
177
See Appellate Body Report, US –Import Prohibition of Certain Shrimp and Shrimp Products,¶163-5, WTO Doc.
WT/DS58/AB/R (adopted Nov. 6, 1998).
178
See Id. at 165 (“discrimination results not only when countries in which the same conditions prevail are
differently treated, but also 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.”).
179
See Id.
THE CLOTHES (UN)MAKE THE MAN 37
attempts to negotiate with the affected parties. Thus, while the US’asym-
metrical standards for domestic and imported gasoline were held to satisfy
the requirements of Article XX(g), they nevertheless failed to meet the
requirements of the Chapeau. This was because the US “had not pursued
the possibility of entering into cooperative arrangements with the govern-
ments of Venezuela and Brazil”before imposing asymmetric standards,
thus constituting “unjustifiable discrimination”and a “disguised restriction
on international trade”in violation of the Chapeau.
180
The DSB’s approach to Article XX has thus narrowed the feasibility of
using its environmental exceptions to justify restrictive trade measures.
Nevertheless, such justification may be possible with reference to some of
the unique conservational and health-related risks posed by the tex-
tile industry.
Part IV: Reintroducing textile trade quotas?
Perhaps the most straightforward means of reducing global apparel produc-
tion is to reverse the effects of the quota phase-out by gradually reintroduc-
ing quotas. The two largest apparel importers
181
–the US and EU –for
example, could set specific quotas for different garments, depending on the
type of fiber used to produce them. Alternatively, export quotas could be
negotiated with textile-producing countries in a manner somewhat similar
to the MFA.
In either case, clothing made from more harmful materials could be sub-
ject to stricter quotas while apparel made from more eco-friendly fibers,
such as linen or hemp, could be subject to higher quotas or exempted
altogether. Additional considerations, such as compliance with environmen-
tal standards,
182
might also be taken into account when setting quota levels.
In the current state of WTO jurisprudence, reintroducing textile trade quo-
tas would likely satisfy the requirements of Article XX(b) and XX(g), but is
less certain to comport with the Chapeau.
180
See Appellate Body Report, United States –Standards for Reformulated and Conventional Gasoline,28–29, WTO
Doc. WT/DS2/AB/R (adopted May 20, 1996). Similarly, the US –Tuna I Panel held that the US MMPA was not
“necessary”under Article XX(b) because the US had not exhausted the option of negotiating international
cooperative agreements. As many commentators have pointed out, the US had in fact tried to obtain an
agreement reducing dolphin mortality for 20 years. See Schoenbaum, supra note 138, at 301. In addition,
trade disputes resolved prior to the WTO’s creation in 1994 suggested that a measure is not a “disguised
restriction”if it is made public. See Jia, supra note 167, at 61.
181
P. Smith, Share of Leading Apparel Importers Worldwide in 2019, by Country, Statista (2022), https://www.
statista.com/statistics/1207381/share-of-the-leading-global-apparel-importers/
182
Allocating quotas based on environmental standards could complicate the legal analysis because the
distinction between otherwise “like products”would be based on differences in Process and Production
Methods (PPMs) rather than final products. While this obstacle may be surmountable, the applicable legal
analysis is beyond the scope of this paper.
38 T. AVRHAMI
Textile trade quotas under article XX(b)
Under Article XX(b), trade quotas might be viably justified based on a
number of health risks –to humans, plants, and animals alike –associated
with the textile industry. These risks are inherent in both synthetic and nat-
ural fibers, manifesting in various ways and at different stages in textile
lifecycles. Two fibers in particular, one synthetic and the other natural,
dominate the textile and apparel landscape: polyester and cotton. Together,
they constitute roughly 80-85% of all textile materials worldwide.
183
Polyester accounts for 60% of global clothing fiber produced
184
and, like
water bottles, is made predominantly from polyethylene terephthalate
(PET).
185
Its production begins with the extraction of crude oil, a process
known to harm wildlife and human health.
186
Later stages in its develop-
ment involve the use of up to 15,000 chemicals, many of which are hazard-
ous to human health, and some of which can cause cancer.
187
Furthermore,
enormous quantities of microfibers are released during both production
and consumer use; indeed, the textile sector is the largest contributor of
microplastics to Earth’s oceans, accounting for an estimated 35% of all
oceanic primary microplastic pollution
188
(roughly equivalent to 50 billion
plastic bottles annually).
189
Microplastics are now virtually omnipresent; they have been detected in
rivers, deep-sea sediments, arctic ice, soil, air, beer, table salt, birds, fish,
plants, animals, and humans.
190
While much is still unknown about this
phenomenon, it is clear that synthetic microfibers pose a health risk on
both an individual and ecosystemic level.
191
Frequent, long-term exposure
183
More than half of all textile fibers are made from oil-based polyester. Palacios-Mateo et al., supra note 35, at
1. Cotton accounts for about one-third. See Deborah Drew and Genevieve Yehounme, The Apparel Industry’s
Environmental Impact in 6 Graphics, World Resources Institute (2017), https://www.wri.org/insights/apparel-
industrys-environmental-impact-6-graphics.
184
See RATHINAMOORTHY,supra note 4, at 26.
185
See Palacios-Mateo et al., supra note 35, at 2. In fact, 60%of PET is used for synthetic fiber production while
only 30%is used for water bottles. See Li Na Ji, Study on the Preparation Process and Properties of Polyehylene
Terephthalate (PET), 312 Applied mechanics and materials, 406, 406–10 (2013).
186
See Palacios-Mateo et al., supra note 35, at 3.
187
See Id. at 5-6. On average, the production of one kilogram of textiles utilizes 0.58 kilograms of chemicals. See
Id. In fact, 25%of the chemicals produced worldwide are used in textiles. See Burcin
€
Utebay et al., Textile
Wastes: Status and Perspectives,in Waste in Textile and Leather Sectors 39, 43 (2020).
188
Griffin and Wilkins, supra note 8. Primary microplastics are tiny particles designed for commercial use, such
as cosmetics, as well as microfibers shed from clothing and other textiles, such as fishing nets.
Secondary microplastics are particles that result from the breakdown of larger plastic items, such as water
bottles. See National Geographic Society, Microplastics (July 2019), https://www.nationalgeographic.org/
encyclopedia/microplastics/#::text=Primary%20microplastics%20are%20tiny%20particles,items%2C%20such%
20as%20water%20bottles.
189
See Kieran Brophy, Fast Fashion 1 –Why is the Fashion Industry an Environmental Problem, Imperial Blogs,
Institute for Molecular Science and Engineering (2020), https://blogs.imperial.ac.uk/molecular-science-
engineering/2020/09/18/fast-fashion-1-why-is-the-fashion-industry-an-environmental-problem/.
190
See Palacios-Mateo et al., supra note 35, at 11; XiaoZhi Lim, Micoplastics Are Everywhere –but Are They
Harmful?, Nature (2021), https://www.nature.com/articles/d41586-021-01143-3#::text=Scientists%20have%
20since%20seen%20microplastics,or%20more%20to%20degrade%20fully.
191
See Id.at11–13.
THE CLOTHES (UN)MAKE THE MAN 39
(as is the case for many garment workers) has been associated with
increased risks of asthma, lung disease, and –like asbestos –even
lung cancer.
192
Research regarding the impacts of microfibers has also raised a number
of ecological concerns due to their effects on plant and animal health. For
example, they were found to cause an increase in mortality for certain mar-
ine organisms, which are often critical in food chains.
193
They can also
inhibit the growth of some plants, and there is research suggesting that suf-
ficient concentrations of microfibers could threaten food security and
biodiversity.
194
While microplastics are a feature unique to synthetic textiles, apparel
made from natural fibers comes with its own set of health concerns.
Cotton, the most common natural fiber, accounts for over two-thirds of
natural fibers worldwide and about one-third of textiles overall.
195
Though
it occupies only 2.4% of Earth’s cultivated land, cotton is allocated 16% of
global insecticide usage –more than any other crop
196
–a significant pro-
portion of which are not absorbed by the plant.
197
Instead, these pesticides
wash out into rivers and groundwater bodies, creating severe health
risks;
198
one review of data provided by the World Health Organization
found that nearly half (44%) of all farmers worldwide suffer pesticide poi-
soning every year.
199
As noted in Part III, health risks are encompassed by Article XX(b) if
the evidence “tends to show …a risk to health rather than the opposite,”
200
an evidentiary standard even lower than a “‘preponderant’weight of the
evidence.”
201
This standard could almost certainly be met by the plethora
of evidence indicating that there are significant health risks associated with
the production, use, and accumulation of natural and synthetic textile
fibers. Indeed, some of these risks –such as lung cancer
202
and air pollu-
tion
203
–have already been recognized as health risks under Article XX(b).
192
Id.at5.
193
Id. at 11.
194
See Id. at 12.
195
Drew and Yehounme, supra, note 183.
196
See Pesticide Action Network UK, Pesticide Concerns in Cotton,https://www.pan-uk.org/cotton/ (last visited
Feb. 26, 2022). Cotton accounts for 16%of global insecticide usage and 6%of global pesticide usage. See Id.
197
See CDP, Interwoven Risks, Untapped Opportunities: The Business Case for Tackling Water Pollution in
Apparel and Textile Value Chains, 1, 7 (2020).
198
See Id.
199
See Boedeker et al., supra note 58, at 1.
200
Appellate Body Report, European Communities –Measures Affecting Asbestos and Asbestos-Containing Products,
¶157, WTO Doc. WT/DS135/AB/R (adopted April 5, 2001).
201
Id. at 178.
202
See generally Appellate Body Report, European Communities –Measures Affecting Asbestos and Asbestos-
Containing Products, WTO Doc. WT/DS135/AB/R (adopted April 5, 2001).
203
See Panel Report, United States –Standards for Reformulated and Conventional Gasoline,¶6.21, WTO Doc.
WT/DS2/R (circulated Jan. 29, 1996) (“The Panel agreed with the parties that a policy to reduce air pollution
resulting from the consumption of gasoline was a policy within the range of those concerning the protection
of human, animal and plant life or health mentioned in Article XX(b).”).
40 T. AVRHAMI
Like the trade measures used to combat these risks (and others), a meas-
ure designed to address the health risks implicated by excessive textile trad-
ing would almost certainly meet the first element of the ‘necessity test.’
204
This is especially true when considering that “it is within the authority of a
WTO member to set the public health or environmental objective it seeks
to achieve, as well as the level of protection that it wants to obtain.”
205
The
legal justification would be even stronger if invoked by exporting countries,
as their citizens often suffer the environmental consequences of textile
operations most acutely.
206
In terms of the second element (i.e., whether a measure is “necessary”to
fulfill a policy objective), “the question …is whether there is an alternative
measure that would achieve the same end and that is less restrictive of
trade[.]”
207
Since ‘necessity’is more likely to exist where a measure’s pur-
sued societal value –and its contribution to that value –is high,
208
the
scale of the textile industry’s health risks weighs in favor of finding neces-
sity. Similarly, a quota-based measure is “apt to produce a material contri-
bution to the achievement of its objective,”
209
as trade quotas would lead
to decreased textile production overall, thus mitigating health risks at every
stage of textile lifecycles.
210
Indeed, the Appellate Body has explicitly recognized that “certain com-
plex public health or environmental problems may be tackled only with a
comprehensive policy comprising a multiplicity of interacting measures.”
211
It has also noted that “the results obtained from certain actions –for
instance, measures adopted in order to attenuate global warming and cli-
mate change …can only be evaluated with the benefit of time.”
212
These
considerations are acutely pertinent to the current and future health risks
inherent in the modern fashion industry.
Further, while textile quotas would undoubtedly produce restrictive
effects on international commerce –thus weighing against their legitimacy
204
As noted above, the necessity test consists of two parts. First, the policy objective pursued by the GATT-
inconsistent measure must be the protection of life or health of humans, animals or plants; second, the
measure must be necessary to fulfill those policy objectives. See supra, Part III.
205
See Appellate Body Report, Brazil –Measures Affecting Imports of Retreaded Tyres,¶140, WTO Doc. WT/
DS332/AB/R (adopted Dec. 3, 2007).
206
See supra, Part I. In India, for example, 50%of all pesticide usage is allocated to cotton crops (several times
the global average), resulting in 50 deaths and 800 hospitalizations in one state (Maharashtra) during one
year (2017) alone. See CDP, supra note 197, at 7.
207
Appellate Body Report, European Communities –Measures Affecting Asbestos and Asbestos-Containing Products,
¶172, WTO Doc. WT/DS135/AB/R (adopted April 5, 2001)
208
See Appellate Body Report, Korea –Measures Affecting Imports of Fresh, Chilled and Frozen Beef,¶162-163,
WT/DS161/AB/R, WT/DS169/AB/R (Adopted Jan. 10, 2001).
209
Appellate Body Report, Brazil –Measures Affecting Imports of Retreaded Tyres,¶151, WTO Doc. WT/DS332/AB/
R (adopted Dec. 3, 2007)
210
See supra, Part II.
211
Appellate Body Report, Brazil –Measures Affecting Imports of Retreaded Tyres,¶151, WTO Doc. WT/DS332/AB/
R (adopted Dec. 3, 2007).
212
Id.
THE CLOTHES (UN)MAKE THE MAN 41
–more restrictive measures, such as categorical bans, have passed the
necessity test.
213
In Brazil –Retreaded Tyres, a categorical import ban was
held to be necessary under Article XX(b) because no other measure would
accomplish its goals to the same extent.
214
Given that this extent is deter-
mined solely by the country implementing a measure,
215
there is arguably
no less-restrictive alternative that could mitigate the health risks posed by
the textile industry to the same extent as a quota. This is especially true
considering the current lack of progress in mitigating these risks,
216
and
that quota levels could be calibrated to correspond with the level of risk
posed by a particular fiber. Thus, the imposition of trade quotas (being less
restrictive than a ban) on health-threatening fibers could satisfy both ele-
ments of Article XX(b)’s necessity test.
Textile trade quotas under article XX(g)
Article XX(g)’s exception for resource conservation may be suited to justify
trade quotas as well. As noted in Part III, this involves three requirements:
(1) the measure involves something that is considered an exhaustible nat-
ural resource; (2) the measure relates to the conservation of that resource;
and (3) the measure is made effective in conjunction with domestic restric-
tions.
217
Given that the phrase “exhaustible natural resource”has been
interpreted broadly to include both living and non-living resources,
218
many of the resources threatened by excessive textile trade are encom-
passed by this definition. Major examples of such resources could include
water, clean air, forests, and wildlife.
The textile industry is the second most water-intensive industry in the
world (after agriculture),
219
with the production stage alone consuming
about 80 trillion liters of water each year (at an estimated ratio of 200 tons
of water for each ton of textiles).
220
An additional 5 trillion liters of water
are used in the global dying process,
221
while laundry usage consumes
another 20 trillion liters,
222
for a total of approximately 100 trillion liters
213
See Id. at 174.
214
See Id.
215
See Id. at 156 (“in order to qualify as an alternative, a measure …should also ‘preserve for the responding
Member its right to achieve its desired level of protection with respect to the objective pursued.’”)
(citation omitted).
216
See generally,supra Part III.
217
See supra, Part III.
218
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. Gabiatti, supra note 136, at 38-9.
219
See Karssing, supra note 1.
220
See Niinimaki et al., supra note 5, at 192.
221
Glynis Sweeney, Fast Fashion Is the Second Dirtiest Industry in the World, Next to Big Oil, Eco Watch (2015),
https://www.ecowatch.com/fast-fashion-is-the-seconddirtiest-industry-in-the-world-next-to-
big–1882083445.html.
222
Ellen MacArthur Foundation, supra note 77, at 38.
42 T. AVRHAMI
consumed annually. Clothing specifically accounts for more than two-thirds
of this consumption.
223
Clean air –an already-recognized exhaustible natural resource
224
–is
also compromised by textile production. Textiles are among the most
GHG-intensive products per unit of material produced (emitting roughly
25 tons of GHGs per ton of fabric),
225
and the industry is estimated by the
World Bank to account for 10% of global GHG emissions.
226
In more
fathomable terms, producing the cotton for a single pair of jeans requires
roughly 8,000 liters of water,
227
and the industry emits more GHGs than
all international flights and maritime shipping combined.
228
Aside from exhausting the fundamental natural resources of air and
water, the textile sector has also been linked to the depletion of a wide
range of other resources including forests, soil, and biodiversity.
229
The
conservation of each of these resources serves not only to preserve the
resource itself, but a range of other resources that both support and are
supported by it.
The effect of pesticides on honeybees provides a useful illustration of
the close linkage between different natural resources. According to the US
Department of Agriculture, bees are responsible for about one-third of
the US’food supply;
230
they also contribute significantly to medicine, ani-
mal agriculture, biodiversity preservation, and –of course –textiles.
231
In
recent years, however, strong evidence has surfaced indicating an alarm-
ing decline in global bee populations,
232
and populations of managed bees
in the US decreased by 40.7% in 2019 alone.
233
Theselosseshavebeen
223
See Id.
224
See Panel Report, United States –Standards for Reformulated and Conventional Gasoline,¶6.37, WTO Doc.
WT/DS2/R (circulated Jan. 29, 1996) (“clean air was a resource [it had value] and it was natural. It could be
depleted. The fact that the depleted resource was defined with respect to its qualities was not, for the Panel,
decisive. Likewise, the fact that a resource was renewable could not be an objection.”).
225
See Meidad Kissinger et al., Accounting for Greenhouse Gas Emissions of Materials at the Urban Scale-Relating
Existing Process Life Cycle Assessment Studies to Urban Material and Waste Composition, 4 Low Carbon Econ.,
38 (2013). Of the 14 commonly-used products examined in this research, the second most GHG-intensive
product, aluminum, was less than half as intensive (at a ratio of roughly 11 tons of GHGs for each ton of
aluminum). Other products examined included those made from metals, papers, and plastics. See Id.
226
See Fleischmann, supra note 6.
227
See The Fashion Law, How Many Gallons of Water Does it Take to Make a Single Pair of Jeans?,Fashion
Law (2019), https://www.thefashionlaw.com/how-many-gallons-of-water-does-it-take-to-make-a-single-
pair-of-jeans/.
228
See Fleischmann, supra note 6. This holds true even according to lower estimates of the percentage of global
GHG emissions for which the industry is responsible.
229
See Anna Granskog et al., supra note 10.
230
See U.S. DEPARTMENT OF AGRICULTURE,US Pollinator Information,https://www.ree.usda.gov/pollinators (last visited
Feb. 2022).
231
See Clara Zervigon, What Would Happen if All the Bees Died?, Grunge (2022), https://www.grunge.com/
452062/what-would-happen-if-all-the-bees-died/.
232
See Sophie Lewis, 25%of Wild Bee Species Have Gone Missing Since the 1990s, Study Finds, CBS News (2021),
https://www.cbsnews.com/news/wild-bee-species-missing-since-1990s-extinction/.
233
Julia Jacobo, Nearly 40%Decline in Honey Bee Population Last Winter ‘Unsustainable,’Experts Say, ABC News (2019),
https://abcnews.go.com/US/40-decline-honey-bee-population-winter-unsustainable-experts/story?id=64191609.
THE CLOTHES (UN)MAKE THE MAN 43
strongly linked to pesticide usage
234
–particularly those applied to citrus
and cotton.
235
Thus, limiting apparel production stands to aid in the conservation of
not only clean air and water, but rather an entire ecosystemic structure
upon which modern society has come to depend. The importance of this
conservation is emphasized even further by the projection that, if consump-
tion continues at its current rate, the textile industry is expected to exhaust
three times as many natural resources by 2050 compared to 2000.
236
However, in order for a measure to be justified under Article XX(g), it
must “relate”to resource conservation. As noted above, this has been inter-
preted to mean that the measure must be “primarily aimed”at the conser-
vation of the targeted resource
237
such that the relationship between it and
the measure at hand is “observably a close and real one.”
238
Thus, it may
be easier to justify quotas on the basis of conserving resources that are
more directly compromised by the textile industry, such as water.
Conversely, while reducing textile production would facilitate the conserva-
tion of a wide range of other resources, their less-direct relationship with
the industry may weaken their contribution to a legal justification. The
analysis is also complicated by the lack of clarity regarding the precise
meaning and significance of “primarily aimed.”
239
On the whole, though, Article XX(g)’s‘primary aim’requirement would
seem satisfied by trade quotas intended to reduce overall consumption, and
specifically tailored to the conservational impact of the targeted fibers. This
is especially true because Article XX(g) measures can apply to the conserva-
tion of global resources,
240
even if they require “a substantial period of
time, perhaps years,”to take effect.
241
Finally, in terms of Article XX(g)’s requirement that a measure be made
in conjunction with domestic efforts, a range of options is available to
countries seeking to implement a trade quota. As noted above, compliance
with Article XX(g) does not require “identical treatment of domestic and
234
Damian Carrington, Pesticides Linked to Honeybee Decline, The Guardian (2012), https://www.theguardian.com/
environment/2012/mar/29/crop-pesticides-honeybee-decline.
235
Associated Press, Neonicotinoid Pesticide Use on Some Crops Harms Honeybees, EPA Finds, NBC News (2016),
https://www.nbcnews.com/science/environment/neonicotinoid-pesticide-use-some-crops-harm-honeybees-epa-
finds-n491371.
236
Drew and Yehounme, supra note 183. In particular, water and energy consumption are projected to rise 50%
and 63%respectively by 2030. See Global Fashion Agenda and Boston Consulting Group, Pulse of the Fashion
Industry, 9 (2017), https://www.globalfashionagenda.com/publications-and-policy/pulse-of-the-industry/.
237
Panel Report, Canada –Measures Affecting Exports of Unprocessed Herring and Salmon,¶4.6, WTO Doc. BISD
35S/98 (adopted March 22, 1988).
238
Appellate Body Report, US –Import Prohibition of Certain Shrimp and Shrimp Products,¶141, WTO Doc. WT/
DS58/AB/R (adopted Nov. 6, 1998).
239
See supra, Part III.
240
See Panel Report, United States –Restrictions on Imports of Tuna,¶5.20, WTO Doc. WT/DS29/R (circulated
June 16, 1994).
241
See Appellate Body Report, United States –Standards for Reformulated and Conventional Gasoline, 21, WTO
Doc. WT/DS2/AB/R (adopted May 20, 1996).
44 T. AVRHAMI
imported products.”
242
Accordingly, this requirement could be satisfied so
long as countries imposing an import quota also took some action on the
domestic front, such as limiting polyester-based clothing production while
incentivizing the production of clothes made with more sustainable fibers.
Textile trade quotas under the Chapeau
While textile import quotas could likely be implemented in a manner that
meets the specific requirements set forth in Article XX(b) and XX(g), they,
like other measures addressed by the DSB, are less certain to survive the
Chapeau’s requirements. To begin with, the question of how such quotas
should be allocated is complicated by these conditions, as well as inconsist-
ent conclusions in WTO jurisprudence. Given the Appellate Body’s holding
that arbitrary discrimination can exist even when it does not undermine a
measure’s objective,
243
and that differing conditions between countries
must be taken into account,
244
a uniform quota allocation applicable to all
countries seems invalid.
Perhaps this obstacle could be surmounted by allocating different quotas
to countries based on their prior export share vis-
a-vis a given apparel
fiber. As a hypothetical example, if 20% of prior US polyester imports
came from China and 10% from Bangladesh, the quota limit on the former
would be twice as high as the latter. Implementing a quota restriction in
this way would preserve the percentage of textile trading between countries
while decreasing its overall volume. This would therefore contribute to the
goal of health protection or resource conservation while arguably avoiding
arbitrary discrimination under the Chapeau.
However, because WTO jurisprudence has not yet addressed quota allo-
cation under Article XX, the legal viability of such an approach is uncer-
tain. This uncertainty is compounded by the fact that it is unclear whether
and to what extent rationales unrelated to a measure’s objective can be
used to justify asymmetrical trade-restrictions.
245
In Brazil –Retreaded
Tyres, the Appellate Body effectively held that arbitrary discrimination can
be justified only by a rationale that relates to the objective of the GATT-
inconsistent trade measure.
246
In contrast, the Appellate Body in EC –Seal
Products explicitly held otherwise.
247
242
Id.
243
See Appellate Body Report, Brazil –Measures Affecting Imports of Retreaded Tyres,¶229, WTO Doc. WT/
DS332/AB/R (adopted Dec. 3, 2007).
244
See Appellate Body Report, US –Import Prohibition of Certain Shrimp and Shrimp Products,¶165, WTO Doc.
WT/DS58/AB/R (adopted Nov. 6, 1998).
245
See supra, Part III. See also,infra notes 251, 253.
246
See Appellate Body Report, Brazil –Measures Affecting Imports of Retreaded Tyres,¶228, WTO Doc. WT/
DS332/AB/R (adopted Dec. 3, 2007).
247
See WTO 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
THE CLOTHES (UN)MAKE THE MAN 45
If the approach taken in Retreaded Tyres is followed, allocating different
quota levels to different countries would not be justified because the ration-
ale for doing so does not relate to the measure’s general objective of pro-
tecting health or conserving resources. This is ironic in light of the fact
that uneven quota allocation would be implemented specifically in order to
avoid discrimination under US –Shrimp.
248
Indeed, this illustrates the ten-
sion between being unable to justify discrimination through rationales
unrelated to a measure’s objective while also complying with US –Shrimp’s
requirement of taking differing conditions into account when applying a
uniform regulatory program.
249
On the other hand, such justification may be possible under Seal
Product’s suggestion that rationales unrelated to a measure’s objective
might sometimes be used to justify discrimination as non-arbitrary.
250
Indeed, a more recent decision reiterated Seal Product’s approach
251
and
ultimately held that discriminatory impact could be justified where “the
relevant regulatory distinctions of the measure are calibrated to the risks
[that the measure is designed to protect against.]”
252
This possibility
remains tentative, however, since the scope of rationales capable of justify-
ing discrimination remains unclear –while Seal Product’s approach has
been endorsed in some subsequent cases, it seems to have been ignored
in others.
253
Another approach may be to read US Shrimp’s holding more narrowly to
require consideration of differing conditions only when a “regulatory
247
2014) (“the relationship of the discrimination to the [purported] objective of a measure is …not the sole
test …relevant to the assessment of …discrimination.”).
248
See supra, Part III. In US –Shrimp, the Appellate Body held that Article XX discrimination exists when
applying a uniform regulatory program without taking differing conditions between countries into account.
See Appellate Body Report, US –Import Prohibition of Certain Shrimp and Shrimp Products,¶165, WTO Doc.
WT/DS58/AB/R (adopted Nov. 6, 1998).
249
As noted above, Retreaded Tyre’s conclusion that rationales unrelated to a measure’s objectives cannot be
used to justify arbitrary discrimination has been criticized as “excessively rigid, and rather senseless”for
similar reasons. See Duran, supra, note 173, at 475.
250
See WTO 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).
251
See Appellate Body Report, United States –Measures Concerning the Importation, Marketing and Sale of Tuna
and Tuna Products,¶6.288, WTO Doc. WT/DS381/AB/RW2 (adopted Dec. 14, 2018) (“In sum, one of the most
important factors in the assessment of arbitrary or unjustifiable discrimination …is …whether the
discrimination can be reconciled with, or is rationally related to, the policy objective with respect to which
the measure has been provisionally justified[.]”) (emphasis added). That case, which followed a line of cases
addressing different iterations of a trade measure applied by the US in an effort to protect dolphins, was one
of only two decisions in which the Appellate Body ultimately found an Article XX measure to be justified
under the Chapeau. This was because the final measure, which applied different requirements for labeling
tuna as ‘dolphin safe’depending on the level of risk to dolphins in the part of the ocean from which the
tuna were caught, was found to be “tailored to”and “commensurate with”the differing risks to dolphins. As
such, the measure’s detrimental impact on Mexican tuna products in the US market did not constitute
arbitrary or unjustifiable discrimination. See Id. at 6.821.
252
See Id. at 6.79.
253
See Jia, supra note 167, at 93 (“the statement about ‘other factors’that can influence the consideration of
whether the discrimination was justifiable has been ignored in later cases.”).
46 T. AVRHAMI
program”is being applied.
254
In that case, the US had not only required
imported shrimp to have been caught using TEDs, but also effectively
required countries to employ a regulatory program comparable to its own
before accepting their shrimp exports.
255
In contrast, allocating textile trade
quotas would not require other governments to apply any regula-
tory programs.
Read in this way, the US –Shrimp decision would not require consider-
ation of differing conditions when allocating quotas (thus allowing for the
possibility of uniform quota allocation). However, those quotas would need
to be carefully calibrated to the risks against which they are designed to
protect,
256
and countries would still need to first exhaust the possibility of
entering into cooperative agreements with exporting countries in order to
comply with US –Gasoline.
257
In light of the above, it seems that a reintroduction of textile trade quotas
is certainly capable of being justified under Article XX. Caution is warranted,
however, as the WTO’s jurisprudence suggests that it is reluctant to accept
such claims. Indeed, the DSB’s constricting interpretations of “necessary”
258
in Article XX(b), “related to”
259
in Article XX(g), and “discrimination”
260
as
well as “disguised restriction”
261
in the Chapeau have rendered the GATT’s
environmental exceptions all but moot: of the 45 attempts to justify a meas-
ure under Article XX, only two
262
have succeeded.
263
Re-restricting textile trade in light of the climate crisis
The DSB’s approach to Article XX suggests that the WTO favors the short-
term economic advantages of free trade over its long-term environmental
254
See Appellate Body Report, US –Import Prohibition of Certain Shrimp and Shrimp Products,¶165, WTO Doc.
WT/DS58/AB/R (adopted Nov. 6, 1998) (“discrimination results …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.”) (emphasis added).
255
See supra, Part III; see also Appellate Body Report, US –Import Prohibition of Certain Shrimp and Shrimp
Products,¶163-5, WTO Doc. WT/DS58/AB/R (adopted Nov. 6, 1998).
256
See supra, note 251.
257
See supra, Part III. See also supra, note 180.
258
See supra, note 138.
259
See supra, note 160.
260
See supra, Part III. See also supra, note 173.
261
See supra, note 180.
262
See Appellate Body Report, United States –Import Prohibition of Certain Shrimp and Shrimp Products,¶116,
WTO Doc. WT/DS58/AB/RW (adopted Oct. 22, 2001); Appellate Body Report, United States –Measures
Concerning the Importation, Marketing and Sale of Tuna and Tuna Products,¶6.288-6.290, WTO Doc. WT/
DS381/AB/RW2 (adopted Dec. 14, 2018).
263
See Daniel Rangel, WTO General Exceptions: Trade Law’s Faulty Ivory Tower,PUBLIC CITIZEN, 4 (Feb. 4, 2022). 20
of these attempts involved one of the environmental exceptions, and the two successes (US –Shrimp II and
US –Tuna-Dolphin) both relied on Article XX(g). Id. at 24. Although the EC’s asbestos ban was also upheld by
the Appellate Body in EC –Asbestos, that decision ultimately relied on a legal issue unrelated to Article XX.
See Id. at 14. While the fact that both successes were found on environmental bases suggests that these may
be the most promising means of justifying textile trade quotas, the low success rate indicates that the DSB
may not be hospitable to such claims.
THE CLOTHES (UN)MAKE THE MAN 47
consequences. To be sure, there is good cause for apprehension at the pro-
spect of limiting free trade in the textile sector. For one thing, it would
cause apparel prices to rise, frustrating consumers in wealthier countries
who have become accustomed to buying clothes that do not reflect their
social and environmental costs. More profoundly, low-income populations
in wealthier and poorer countries alike currently benefit from the availabil-
ity of cheap clothing, allowing them to allocate more of their income to the
purchase of other necessities, such as food and shelter.
264
And, limiting
apparel production could have severe consequences for developing coun-
tries whose economies rely heavily on this industry.
Bangladesh’s textile sector, for example, generates up to 20% of the coun-
try’s gross domestic product (GDP), accounts for 80% of its export earn-
ings, and employs 4.5 million people.
265
Estimates vary widely, but it is
clear that the industry also contributes significantly to the GDP of several
other developing nations, including Cambodia (16%),
266
Vietnam
(16%),
267
China (7%),
268
and India (3%).
269
By comparison, textile
manufacturing accounts for only 0.12% of the US’GDP while employing
some quarter-million workers.
270
Any reasonable approach to solving the
problems precipitated by the ATC’s quota phase-out must acknowledge the
impact it would have on such vulnerable economies.
However, that impact must also be weighed against the environmental
and economic consequences –both global and national –of continuing
with current trade practices. Globally, the gap between water supply and
demand is projected to reach 40% by 2030 if current practices continue,
and water insecurity risks triggering a global food crisis.
271
This gap is far
from evenly distributed, however; while some countries are less vulnerable
264
See Janet Harrah, Clothing; the Other Necessity, Community Research Collaborative Blog (2013), https://crcblog.
typepad.com/crcblog/clothing-the-other-necessity.html#_ftn1.
265
See International Finance Corporation, Building a Sustainable Textile and Apparel Market in Bangladesh, World
Bank Group (2017), https://www.ifc.org/wps/wcm/connect/54cc6d31-b8a0-4650-9eee-fc65583df8cd/
BangladeshApparelSector_OnePager_R3.pdf?MOD=AJPERES&CVID=m3wQl1r
266
See Invest in Cambodia, Garment, Textile and Footwear, EuroCham (2020), https://investincambodia-eu.org/
garment/.
267
See Trinh Nguyen, Seizing Investment Opportunities in Vietnam’s Garment and Textile Industry, Vietnam Briefing
(2020), https://www.vietnam-briefing.com/news/seizing-investment-opportunities-vietnams-textile-garment-
industry.html/#::text=The%20garment%20and%20textile%20industry,rate%20of%2017%
20percent%20annually.
268
See Laura Wood, China Textile Industry Overview 2017-2021 –Research and Markets, Business Wire (2016),
https://www.businesswire.com/news/home/20161003006057/en/China-Textile-Industry-Overview-2017-2021–-
Research-and-Markets#::text=In%202015%2C%20the%20production%20value,part%20in%20China’s%
20foreign%20trade.
269
See Ishita Kapur et al., Water Stewardship in the Indian Textile Industry: A Handbook of Recommended Good
Practices, 3 (2020).
270
See Sheng Lu, State of the U.S. Textile and Apparel Industry: Output, Employment, and Trade, Sheng Lu Fashion
(2022), https://shenglufashion.com/2022/01/08/state-of-u-s-textile-and-apparel-manufacturing-output-
employment-and-trade-updated-january-2022/.
271
See World Economic Forum, We’re Helping to Close the Gap Between Global Water Demand and Supply (2021),
https://www.weforum.org/our-impact/closing-the-water-gap.
48 T. AVRHAMI
to water scarcity, the threat looms especially large over some of the major
players in the textile industry.
Water demand in India, for example, is expected to reach twice the avail-
able supply within the next decade, leading to a 6% loss in its GDP.
272
Similarly, China faces growing water scarcity,
273
while Bangladesh suffers
from widespread pollution throughout its rivers, driven in large part by
textile dyeing.
274
The world is also set to face a global waste crisis in the
coming years, as countries (such as China, Thailand, Vietnam, and
Malaysia) that previously accepted garbage from other nations are begin-
ning to ban the importation of solid waste.
275
In terms of emissions, the fashion industry’s impact on climate change
increased by 35% between 2005 and 2016 (during the latter of which it emit-
ted roughly 4 billion tons of CO
2
equivalents),
276
and is projected to increase
by 49% between 2016 and 2030 if business-as-usual prevails.
277
Globally, the
world can afford to emit roughly 300 billion more tons of carbon without
causing a temperature rise of at least 1.5 degrees Celsius.
278
We currently
emit about 35 billion tons annually, leaving us with less than a decade to
drastically reduce our emissions.
279
In order to meet the Paris Agreement’s
goal of keeping global warming “well below”2 degrees Celsius, humanity
will need to halve its annual GHG emissions within the next 8 years.
280
In the short-term, at least, these reductions will necessarily come at the
expense of our consumptive habits,
281
demanding that we use less conventional
energy,
282
fuel, meat
283
–and clothing. Though far from easy, limiting the con-
sumption of apparel is arguably the least daunting of these prospects.
284
272
See Ishita Kapur et al., supra note 269. Notably, water use in India’s textile industry is highly inefficient, and
water scarcity tends to affect women more acutely than men. See Id.
273
See Hal Brands, China is Running Out of Water and That’s Scary for Asia, Bloomberg (2021), https://www.
bloomberg.com/opinion/articles/2021-12-29/china-s-water-shortage-is-scary-for-india-thailand-vietnam.
274
See Helen Regan, Asian Rivers are Turning Black. And our Colorful Closets are to Blame, CNN (2020), https://
www.cnn.com/style/article/dyeing-pollution-fashion-intl-hnk-dst-sept/index.html.
275
See Matt McGrath, US Top of the Garbage Pile in Global Waste Crisis, BBC News (2019), https://www.bbc.com/
news/science-environment-48838699.
276
See Niinimaki et al., supra note 5, at 192.
277
See Patwary, supra note 15, at 164.
278
See Dane McFarlane and Elizabeth Abramson, Carbon Budget 101: What it is and Why it Matters, Better
Energy (2021), https://betterenergy.org/blog/carbon-budget-101-what-it-is-and-why-it-matters/.
279
See Id.
280
See United Nations Environment Programme, Emissions Gap Report 2021, UNEP (2021), https://www.unep.org/
resources/emissions-gap-report-2021.
281
See Renee Cho, How Buying Stuff Drives Climate Change, 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.
282
For example, a 40%reduction in per capita energy demand is required in the US. See Michael Gerrard et al.,
Global Climate Change and U.S. Law (3
rd
ed., forthcoming 2022).
283
See Laura Wellesley and Antony Froggatt, Changing Climate, Changing Diets: Pathways to Lower Meat
Consumption, Chatham House (2015), https://www.chathamhouse.org/2015/11/changing-climate-changing-
diets-pathways-lower-meat-consumption.
284
Though not evenly accessible, it is estimated that if apparel production ceased entirely, there is enough
clothing currently in existence to clothe the world’s population for 10-15 years. See Deutsche Welle, supra
note 65.
THE CLOTHES (UN)MAKE THE MAN 49
Likewise, the economic costs of limiting textile trade, while considerable,
must also be weighed against the costs of the climate crisis. Climate change
is projected to reduce global economic output 11-14% by 2050, with a dis-
proportionately high impact on some of the major textile producers in
Asia
285
(trade in textiles represents about 4.62% of global trade).
286
Conversely, a 2017 report found that improving social and environmental
practices throughout the fashion industry stands to benefit the world econ-
omy by over $150 billion annually.
287
Thus, even if economics are to remain prioritized over sustainability,
such statistics demonstrate a need to take the economic ramifications of
environmental degradation into account when contemplating costs and
benefits. Currently, however, economic and environmental analyses remain
largely insulated from one another, and “there is an urgent need for more
rapid integration of …sustainable development into the core of economi-
cs.”
288
Indeed, though the economic consequences of the quota phase-out
have been examined since the ATC’s expiration,
289
its environmental
impact has scarcely been considered, and never assessed.
290
As some scholars have noted, failure to integrate environmental consid-
erations into global trade policy raises four major concerns. First, “trade
may cause environmental harm by promoting economic growth that results
in the unsustainable consumption of natural resources.”Second, “trade lib-
eralization often entail[s] market access agreements that can be used to
override environmental regulations[.]”Third, trade “restrictions should be
available as leverage to promote worldwide environmental protection, par-
ticularly to address global or transboundary environmental problems[.]”
Fourth, “countries with lax environmental standards have a competitive
advantage in the global marketplace and put pressure on countries with
high environmental standards to reduce the rigor of their environmental
requirements.”
291
285
See Christopher Flavelle, Climate Change Could Cut World Economy by $23 Trillion in 2050, Insurance Giant
Warns, New York Times (2021), https://www.nytimes.com/2021/04/22/climate/climate-change-economy.
html#::text=That%20amounts%20to%20as%20much,a%20result%20of%20climate%20change.
286
See Observatory of Economic Complexity, Textiles, OEC (2020), https://oec.world/en/profile/hs92/
textiles#::text=In%202020%2C%20Textiles%20were%20the,4.62%25%20of%20total%20world%20trade.
287
See Global Fashion Agenda and Boston Consulting Group, supra note 236, at 19. These benefits are expected
to accrue from improvements to the following categories: water consumption ($32 billion); energy emissions
($67 billion); chemical usage ($7 billion); waste creation ($4 billion); labor practices ($5 billion); worker health
and safety ($32 billion); community and external engagement ($14 billion). See Id.
288
See Stephen Polasky et al., Role of Economics in Analyzing the Environment and Sustainable Development,
Proceedings of the National Academy of Sciences 116 (12), 5233, 5234 (2019).
289
See, e.g., Whalley and Yao, supra note 34; Przemyslaw Kowalski and Margit Molnar, Economic Impacts of the
Phase-Out in 2005 of Quantitative Restrictions Under the Agreement on Textiles and Clothing, 90 OECD
Trade Policy Papers (2009).
290
See supra, note 36.
291
Daniel C. Esty, Greening the GATT: Trade, Environment, and the Future (1994); see also Schoenbaum, supra
note 138, at 281–82.
50 T. AVRHAMI
This formulation of these concerns was articulated in 1994, just as the
ATC was being introduced; each has proven exceedingly prescient, particu-
larly with respect to the fashion industry. While municipal, state, federal,
and private efforts certainly have a role to play, they are ill-suited to com-
prehensively address the problems posed by a highly globalized, frag-
mented, and obscure industry. Conversely, international trade policy is
better equipped to do so and may indeed have potential to serve as an
invaluable tool in the fight against climate change. So long as trade policy
and jurisprudence fail to accord environmental risks the gravity they war-
rant, however, that potential will remain dormant while the risks become
actualized in its place.
Part V: Conclusion
As this paper hopes to show, the damaging environmental consequences of
a globalized textile industry have been significantly exacerbated by the sec-
tor’s entry into a free trade regime, manifesting primarily in the form of
fast fashion. While this makes regulation of textile trade a prime candidate
for reversing some of these consequences, the current state of WTO juris-
prudence renders such efforts uncertain to survive legal challenge, particu-
larly under its interpretation of Article XX’sChapeau.
Though limiting global apparel production may come at great cost, trade
policy must wrestle with the prospect that it is too far along in the climate
crisis to do otherwise. The current status-quo –artificially low prices
effected by a free trade regime –is, quite literally, unsustainable. Aside
from driving an economic race to the bottom among developing nations,
Earth simply lacks the resources and stability to keep up with consumer
demand for much longer.
As our resources dwindle and the planet warms, humanity will face
increasingly perilous threats from the degradation of our shared environ-
ment. These threats will undoubtedly beget agonizing choices; trading fash-
ion for sustainability may be least among them.
Notes on contributor
Tal Avrhami is an American-Israeli J.D. Candidate at Columbia Law School, and is also
pursuing an LL.M. at the University of Amsterdam. He is currently working on ongoing
climate litigation at the European Court of Human Rights, and hopes to continue develop-
ing a career at the intersection of human rights and climate change.
THE CLOTHES (UN)MAKE THE MAN 51
