Application Scope of GATT Art. XX Is Not Limited to the GATT Violation 23

The scope of GATT Art. XX receives more and more attention in the WTO judiciary and academia. The availability of GATT Art. XX in agreements other than the GATT is a thorny issue because GATT Art. XX specifically points out that nothing in “this Agreement”

shall be construed to prevent the adoption or enforcement of certain measures. This issue was not envisaged at the time of drafting in that the GATT was the only multilateral trade agreement.⁶⁰ As more and more multilateral trade agreements add to the WTO framework, the applicability of general exceptions under GATT Art. XX becomes less clear.⁶¹

60 LESTER ET AL., supra note 56, at 364.

61 Id.

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The reference to “this Agreement” in the chapeau of GATT Art. XX leads to two different readings. The narrow reading sticks to the text, “this Agreement,” and argues that only violation under the GATT can be justified by GATT Art. XX. This reading refers to negotiating history to support this narrow interpretation. Although the phrase “this agreement”

is taken directly from the original GATT 1947, the drafters could have changed “this Agreement” to “WTO law” or “the multilateral agreements on trade in goods” during the Uruguay Round or expanded the scope in the General Interpretative Note to Annex 1A of the WTO Agreement.⁶² But they did not. As a result, the narrow reading considers that the negotiating history suggests a deliberate omission. That is, applying GATT Art. XX beyond the scope of the GATT runs afoul of what the Uruguay Round negotiators actually contemplated.⁶³

On the contrary, the broad reading suggests that the applicability of GATT Art. XX should not be limited to the GATT. Scholars propose several different reasons. Among them, Liu advances that sometimes “the words mean something other than what they appear to mean.”⁶⁴ Liu cites the First Amendment of the U.S. Constitution as an example. The First Amendment states that “congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Liu observes that “even the most ardent strict constructionist understands that the amendment also applied to the President or the courts”⁶⁵ In addition, Liu finds that even the Panel itself expanded the interpretation of a treaty term. In the Panel report of China – Raw Materials, when examining “in conformity with the GATT 1994” under paragraph 11.1 and 11.2 of China’s AP, the Panel expanded the GATT to “WTO

62 Danielle H. Spiegel-Feld & Stephanie Switzer, Whither Article XX? Regulatory Autonomy Under Non-GATT Agreements After China-Raw Materials, 38 YALE J.INT.LAW ONLINE 16, 20 (2012); Fernando Piérola, The Availability of a GATT Article XX Defence with Respect to a Non-GATT Claim: Changing the Rules of the Game?, 5 GLOB.TRADE CUST.J. 172, 172 (2010).

63 Spiegel-Feld & Switzer, supra note 62, at 20–21.

64 Liu, supra note 47, at 154.

65 Id. at 155.

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obligations.”⁶⁶ Due to these reasons, Liu advances that “this Agreement” should also include agreements concluded afterwards on tariffs and trade.⁶⁷

A recent amicus curiae submission to the Panel in Canada – Renewable Energy also agrees with the broad reading. Even though this amicus curiae brief means to argue that GATT Art. XX is available as a defense against breaches of the SCM Agreement, its reasoning can still lend some support in the context of beaches of the AP. The amicus curiae brief suggests that there is no clear ordinary meaning on “this Agreement” now because this term was constructed prior to the Uruguay Round, when the GATT 1947 was the primary multilateral trade agreement.⁶⁸ When the term was rewritten into the GATT 1994, no consideration was given as to its new place as one of many multilateral agreements on goods.

This amicus curiae brief thus proposes to interpret the reference of “this Agreement” in light of today’s systemic position of GATT Art. XX and the link of the GATT 19994 to other multilateral trade agreements.⁶⁹ Furthermore, this amicus curiae brief finds support from the AB report of Brazil – Desiccated Coconut, which ruled that the meaning of “this Agreement”

in Art. 32.3 of the SCM Agreement refers not only to the SCM Agreement, but also Art. VI of the GATT. Hence, this amicus curiae submission puts forth that the meaning of this Agreement is not inherently limited to the agreement that it is used in.⁷⁰ In addition, the amicus curiae brief refers to negotiating history of GATT Art. XX to confirm the broad reading. Art. 37 of the London draft, which later became the chapeau of GATT Art. XX, did not yet refer to “this Agreement” but to “undertakings in Chapter IV of this Charter relating to

66 China – Raw Materials Panel Report, ¶ 7.138.

67 Liu, supra note 47, at 155.

68 Amicus Curiae Submission on International Institute for Sustainable Development (IISD), Canadian Environmental Law Association (CELA) and Ecojustice Canada (Ecojustice) to the panel in Canada – Renewable Energy, 13, 10 May 2012 [hereinafter the amicus curiae brief in Canada – Renewable Energy].

69 The amicus curiae brief in Canada – Renewable Energy, 13.

70 The amicus curiae brief in Canada – Renewable Energy, 13.

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import and export restrictions.”⁷¹ The reference of “this Agreement” was later introduced in the Geneva Conference by the Benelux and French delegations to expand the application of general exceptions to disciplines in GATT Art. III, VI and XVI. As a result, the amicus curiae brief finds the negotiating history infers that the reference to “this Agreement” means to broaden the application of GATT Art. XX.⁷²

Qin also supports a broad reading yet with different reasons. This thesis resonates with Qin’s argument that the text of GATT Art. XX cannot hinder its application under the AP.

According to Qin, whether GATT Art. XX is applicable to non-GATT agreements relies not on the language of the GATT, but rather on the agreements between the parties. Qin convincingly elucidates her argument with an example that if two countries that are not WTO Members agree to include GATT rules in their free trade agreement, the scope of application of the GATT will not hinder such inclusion and application in their free trade agreement.⁷³ Likewise, whether GATT Art. XX is available in the AP should be determined by the intention of the parties to the AP. Their intention can be ascertained from the context of the AP, not from the GATT provision itself.⁷⁴ Accordingly, the reference to “this Agreement” in GATT Art. XX will not hinder the application of GATT Art. XX in non-GATT agreements.

Moreover, reasoning of China – Publications and Audiovisual Products and China – Raw Materials also indicates the WTO judiciary looked to the text of the AP provision at issue to determine the application of GATT Art. XX. The WTO judiciary looked at the textual link contained in the text of the AP provision at issue to affirm the applicability of GATT Art.

XX in the AP. For instance, in China – Publications and Audiovisual Products, China violated

71 The amicus curiae brief in Canada – Renewable Energy, 16.

72 The amicus curiae brief in Canada – Renewable Energy, 16-17.

73 J. Y. Qin, Pushing the Limits of Global Governance: Trading Rights, Censorship and WTO Jurisprudence--A Commentary on the China-Publications Case, 10 CHIN.J.INT.LAW 271, 299 (2011).

74 Id. at 299–300.

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paragraph 5.1 of China’s AP, which provides that without prejudice to China’s right to regulate trade in a manner consistent with the WTO Agreement, China all enterprises in China shall have the right to trade in all goods throughout the customs territory of China, except for those goods listed in Annex 2A and 2B. The AB looked to the introductory clause of paragraph 5.1 of the AP to assess the applicability of GATT Art. XX.⁷⁵ Accordingly, the reference to “this Agreement” in GATT Art. XX will not bar its application under the AP because the applicability issue depends on the text of the AP.

In sum, the reference to “this Agreement” under GATT Art. XX cannot obstruct applying GATT Art. XX outside the scope of the GATT. GATT Art. XX may still be applied in non-GATT context. As a result, the applicability of GATT Art. XX in the AP will not be hindered because of the reference to “this Agreement” under GATT Art. XX.

75 Appellate Body Report, China–Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Products and Audiovisual Entertainment Products, ¶216, WT/DS363/AB/R (Dec.

21, 2009) [hereinafter China – Publications and Audiovisual Products AB Report].

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Part II

THE APPLICABILITY OF GATT ART. XX IN THE ACCESSION PROTOCOL

– WTO JURISPRUDENCE

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