ELSA MOOT COURT COMPETITION ON WTO LAW 2016-2017

Shall the application of GATT article XX exceptions to other WTO

Covered Agreements be permitted?

Nayelly Landeros Rivera

22nd May, 2016

Shall the application of GATT article XX exceptions to other WTO

Covered Agreements be permitted?
The application of the General exceptions contained in article XX of the
General Agreement on Tariffs and Trade shall be permitted to the other WTO
Covered Agreements, on a case by case analysis, and as long as the
measure that is been applied it is in accordance with the specific WTO
Covered Agreement Obligation and the WTO Law.
Firstly, it is important to stand out the Marrakesh Agreement Establishing the
World Trade Organization has four annexes, the WTO covered agreements,
which shall be deemed as a system because they follow the same principles
and objects of the WTO1, as an example, Annexes 1, 2, 3 are applicable to all
Members and that is why they shall be adopted as a whole or as a single
package according to the single undertaking approach.2
Secondly, article 3.2 of the DSU lays out that the dispute settlement system
serves to clarify the provisions of the WTO Agreements covered by the
system according article 1.1 of the same agreement, shall be interpreted
under the rules of interpretation of article 31 to 33 of the Vienna Convention.
This means, that all agreements covered by the DSU, form an integral part
thereof and constitute an Integral Part of the GATT, have to be interpreted all
in good faith in accordance with the ordinary meaning of the terms in their
context and in the light of its object and purpose.3
1 Cfr. Brasil- Measures Affecting Desiccated Coconut, WT/DS22/AB/R
2 Cfr. Article 2 Scope of the WTO of the Marrakesh Agreement Establishing the
World Trade Organization
3 Canada- Measures Affecting the Importation of Milk and the Exportation of Dairy
Products, WT/DS103/AB/R para.13

In this regard, the preamble of the Marrakesh Agreement Establishing the

World Trade Organization, which contains its object, states that in the field of
trade and economic endeavour should be conducted with a view to raising
standards of living, ensuring full employment and a large and steadily
growing volume of real income and effective demand, and expanding the
production of and trade in goods and services, while allowing for the optimal
use of the worlds resources in accordance with the objective of sustainable
development, seeking both to protect and preserve the environment and to
enhance the means for doing so in a manner consistent with their respective
needs and concerns at different levels of economic development.
Lastly, it is important to stand out that the article XX of the General
Agreement on Tariffs and Trade (hereinafter GATT) establishes a number of
specific instances in which WTO members may be exempted from GATT
rules, following the preamble of WTO Agreement, in order protect human life
or health, animal or vegetable, among others.
In this regard, the Appellate Body have stated that The chapeau says that
nothing in this Agreement shall be construed to prevent the adoption or
enforcement by any contracting party of measures The exceptions listed
in Article XX thus relate to all of the obligations under the General
Agreement: the national treatment obligation and the most-favoured-nation
obligation, of course, but others as well.

If the object contained in the preamble of the Marrakesh Agreement, and the
negotiation between the countries is accepting some legitimate and
necessary exceptions to the WTO Obligations that are clearly contained
GATT Article XX, it shall be permitted to apply them also to the other WTO
Covered Agreements, as long as long as the measure is being alleged as an

4 Appellate Body Report, US Standards For Reformulated And Conventional

Gasoline, para. 24, WT/DS2/9

exception is in accordance with the specific WTO Covered Agreement

Obligation.
This means that in principle, General Exceptions of article XX of the GATT
shall be permitted to apply on a case by case basis, and after an analysis of
whether the measure that is trying to de used as an exception is in
compliance with the WTO.
In this regard, any measure, to qualify finally for exception, must also satisfy
the requirements of the chapeau.5This is a fundamental part of the balance
of rights and obligations struck by the original framers of the WTO Law.
In this regard, in US- Poultry, the Panel stated as long as the measure China
was alleging was not in accordance with the Articles 2 and 5 of the SPS
Agreement, it cannot be justified as an exception under Article XX(b) of the
GATT 19946
Most likely, In China Publications and Audiovisual Products, the Panel ruled
that China was able to argue Article XX as a defense regarding its obligation
under paragraph 5.1 of China accession protocol, in respect of the right to
regulate trade, even when the argument of China wasnt successful.
The Appellate Body established that a successful justification of these
provisions, however, requires China to have demonstrated that they comply
with the requirements of Article XX of the GATT 1994 and, therefore,

5 Appellate Body Report, US Import Prohibition Of Certain Shrimp And Shrimp

Products , para. 157. WT/DS58/AB/R
6 Panel Report, Certain Measures Affecting Imports of Poultry from China consulted
in
https://www.wto.org/english/res_e/booksp_e/analytic_index_e/gatt1994_07_e.htm#f
ntext1353, Friday 20, 2016, 22:34:56

constitute the exercise of its right to regulate trade in a manner consistent

with the WTO Agreement.7
Finally, the Appellate Body set out that whether the necessary objective link
exists in a specific case needs to be established through careful scrutiny of
the nature, design, structure, and function of the measure, often in
conjunction with an examination of the regulatory context within which it is
situated.

In conclusion, I consider that the application of the General Exceptions

provided within the article XX of the GATT shall be permitted to the WTO
Covered Agreements on a case by case basis, and as long as the measured
that is being invoked as exception its in accordance with the WTO Law,
principles and obligations.
Bibliography
-

Appellate Body Report, US Import Prohibition Of Certain Shrimp And

Shrimp Products, WT/DS58/AB/R.

Appellate Body Report, China Measures Affecting Trading Rights And

Distribution

Services

For

Certain

Publications

And

Audiovisual

Entertainment Products, WT/DS363/AB/R.

-

Appellate Body Report , Canada- Measures Affecting the Importation of

Milk and the Exportation of Dairy Products, WT/DS103/AB/R

Appellate Body Report , Brasil- Measures Affecting Desiccated Coconut,

WT/DS22/AB/R

7 Appellate Body Report, China Measures Affecting Trading Rights And

Distribution Services For Certain Publications And Audiovisual Entertainment
Products, WT/DS363/AB/R. paras. 230, 233.
8 Ibdem.

Appellate

Body

Report,

US

Standards

For

Reformulated

And

Conventional Gasoline,, WT/DS2/9

-

Panel Report, Certain Measures Affecting Imports of Poultry from China

consulted

in

https://www.wto.org/english/res_e/booksp_e/analytic_index_e/gatt1994
_07_e.htm#fntext1353, Friday 20, 2016, 22:34:56