DOES GATT ARTICLE XX PROVIDE MEMBERS SUFFICIENT SCOPE TO PROTECT IMPORTANT PUBLIC POLICY GOALS?
Keywords:
WTO law, GATT Article XX, protection of public policy, environmental protection, WTO obligations of member states, public policyAbstract
Trade liberalization, non-discrimination and market access rules constitute primary principles of the World Trade Organization (WTO) law, which impose certain obligations on its member states. In particular, the General Agreement on Tariffs and Trade (GATT) 1994 is a main source of WTO law that embodies laws of MFN treatment (Article I), general elimination of quantitative restrictions (Article IX) along with other trade liberalization rules and sets disciplines for its signatories. However, trade-related goals and interests do not necessarily coincide with non-economic concerns and objectives such as environmental protection and animal welfare. Thus, member states are likely to adopt trade-restrictive regulations and measures in order to protect those non-trade values, which may result in breach of their WTO commitments. This article examines the scope of Article XX in the light of its applicability to WTO obligations other than the GATT when non-trade values such as environmental protection is at issue; secondly, it analyzes two-tier test of Article XX with reference to paragraphs (b) and (g) so as to find out whether a proper balance is struck by DSB.
References
Bossche P.V.d. and Zdouc W., The Law and Policy of the World Trade Organization, (4th edn, Cambridge University Press, 2017)
GATT 1994: General Agreement on Tariffs and Trade 1994 (15 April,1994) Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 U.N.T.S. 187, 33 I.L.M. 1153 (1994)
Appellate Body Report, China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products (21 December 2009) WT/DS363/AB/R
‘China Publications and Audiovisual Products’ (World Trade Organization) <https://www.wto.org/english/tratop_e/dispu_e/cases_e/1pagesum_e/ds363sum_e.pdf> accessed 8 November 2019
Panel Reports, China-Raw Materials (5 July 2011) WT/DS394/R, WT/DS395/R, WT/DS398/R, para. 7.105
Protocol on the Accession of the People’s Republic of China (23 November 2001) WT/L/132 art 11 <http://docsonline.wto.or>
Appellate Body Reports, China-Raw Materials (30 January 2012) WT/DS394/AB/R, WT/DS395/AB/R, WT/DS398/AB/R para.289
Appellate Body Report, United States-Import Certain Shrimp and Shrimp Products (12 October 1998) WT/DS58/AB/R, paras. 116, 119
Appellate Body Report, Brazil-Measures Affecting Imports of Retreaded Tyres (3 December 2007) WT/DS332/AB/R, para. 178
Appellate Body Report, Korea-Measures Affecting Imports of Fresh, Chilled and Frozen Beef (11 December 2000) WT/DS161/AB/R, para. 162
Appellate Body Report, EC-Asbestos (12 March 2001) WT/DS135/AB/R, para.172
Appellate Body Report, US-Shrimp (Article 21.5-Malasia) (22 October 2001) WT/DS58/AB/RW para.115
Arwel Davies, ‘Interpreting the Chapeau of GATT Article XX in light of the “New” Approach in Brazil Tyres’ (2009) 43 (3) Journal of World Trade pp.538 < http://www.kluwerlawonline.com.proxy.lib.strath.ac.uk/abstract.php?area=Journals&id=TRAD2009021> accessed 12 November 2019
Report by the Secretariat, Quantitative Restrictions: Factual Information on Notifications Received, Commettee on Market Access, G/MA/W/114/Rev.1 (27 April 2017)
