Question

read GATT 1994 article 20 carefully, make a study of the cases which cited article 20, list at least 5 cases and the specific section the parties used as defence.

Answer 1

GATT 1994's article XX has been used as:-

1)In the EC – Asbestos case, the Appellate Body asserted clearly that it was each WTO Member's "(…) right to determine the level of protection of health that [it] consider[s] appropriate in a given situation". Accordingly, the Appellate Body did not question France's goal of reducing the spread of asbestos-related health risks to zero. The Appellate Body also ruled that "there is no requirement under Article XX(b) of the GATT 1994 to quantify, as such, the risk to human life or health".

2)In the US – Gasoline case, the panel found that it was the inconsistency of the measure with the GATT 1994 (the imported gasoline was treated less favourably than domestic gasoline) that requires justification under Article XX and not the policy goal (the protection of the environment or of public health, for instance). The Appellate Body reversed this panel's finding and found that the panel erred in law in referring to the inconsistency of the measure instead of the measure at issue. The Appellate Body held: "The result of this analysis is to turn Article XX on its head. (…) The chapeau of Article XX makes it clear that it is the 'measures' which are to be examined under Article XX(g), and not the legal finding of 'less favourable treatment'".

3)In the US — Shrimp case, the fact that the United States had “treated WTO members differently” by adopting a cooperative approach regarding the protection of sea turtles with some members but not with others also showed that the measure was applied in a manner that discriminated among WTO members in an unjustifiable manner.

At the compliance stage, in US — Shrimp (Article 21.5), the Appellate Body found that, in view of the serious, good faith efforts made by the United States to negotiate an international agreement on the protection of sea turtles, including with the complainant, the measure was now applied in a manner that no longer constitutes a means of unjustifiable or arbitrary discrimination.

The Appellate Body also acknowledged that, “'as far as possible', a multilateral approach is strongly preferred” over a unilateral approach. But, it added that, although the conclusion of multilateral agreements was preferable, it was not a prerequisite to benefit from the justifications in Article XX to enforce a national environmental measure.

The flexibility of the measure to take into account different situations in different countries

In the US — Shrimp case, the Appellate Body was of the view that rigidity and inflexibility in the application of the measure (e.g. by overlooking the conditions in other countries) constituted unjustifiable discrimination. It was deemed not acceptable that a member would require another member to adopt essentially the same regulatory programme without taking into consideration that conditions in other members could be different and that the policy solutions might be ill-adapted to their particular conditions.

In order to implement the panel and Appellate Body recommendations, the United States revised its measure and conditioned market access on the adoption of a programme comparable in effectiveness (and not essentially the same) to that of the United States. For the Appellate Body, in US — Shrimp (Article 21.5), this allowed for sufficient flexibility in the application of the measure so as to avoid “arbitrary or unjustifiable discrimination”.

4)In the US – Gasoline case, the panel and the parties agreed that "the 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)"

5)In the two Tuna disputes, the panel and the parties accepted - implicitly in US – Tuna (Mexico), explicitly in US – Tuna (EEC) - 39 that the protection of dolphin life or health was a policy that could fall under Article XX(b): "The Panel noted that the parties did not disagree that the protection of dolphin life or health was a policy that could come within Article XX (b)"