Scope of the global trade restrictions
Article XX (b) of GATT 1945 states that;
“Subject 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, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:
(b) necessary to protect human, animal or plant life or health”
The bare test reading of the provision is to mean that you can be in contravention of WTO commitments under the mentioned requirements amongst which para (b) provides for requirement necessary to protect humans, animals or plant life or health. Article XX reads ‘General exceptions’ which is to mean that the article serves as an exception from certain violations under Article XI of GATT however, to invoke this defence, the state has to admit the violation via its measure. Moving back to Article XX, there is a test for eligibility which requires two essentials to be fulfilled;
- One exception from a-j should be applicable
- It should pass the chapeau test i.e.; the exception is not applied in lieu of arbitrary and unjustifiable discrimination with the countries with similar conditions and is not a disguised restriction on international trade.
The burden is to establish that the concerned measure is violative of Article XI, lies on the complainant. The respondent nation in return has two burdens of poofs; refute to or respond to the inconsistency allegation of article XI and/or invoke defence under the prescribed exceptions under article XX. Ideally the nation which is invoking Article XI accepts the measure is violative of article XI and therefore seeks the defence under article XX, as it would amount to procedural technicality to invoke any defence before establishing the need of violation. That being textually established, practically the measures generally contain a grey area, howbeit in cases where the measures do not have any grey area, countries can argue that the concerned measure is not violative of Article XI or any WTO provision. Whilst wanting the exception as a contingency plan, an arguendo can be created and when the panel comes to the decision that the measure indeed stands violative of Article XI, the respondent nation is still allowed to continue the evaluation of under Article XX for arguendo purposes.
Further the test of consistency under article XX again stands the same;
- Weather the measures meet the requirement of at least one of the paragraphs from a-j
- The chapeau test.
Article III of GATT serves as a general rule in WTO law assessment and it states that member’s self-characterisation of the measure would never be relevant, panel’s assessment is the ultimate true meaning. It also stands stated in the customary international law that the self-characterisation of a measure is irrelevant as it could never take away good faith obligation which is assessed by the panel. This authority to enter into the domain of assessing whether the measure is necessary or not is given to the panel by Article XX. Concerning the discretion of panel over establishing the meaning of the measure, Article III (2) of DSU provides that no other word can be added or omitted while reading article XX(b), therefore binding them from interfering with rights of member states, as mentioned in the text.
Moving forth to Article XX(b), “Necessary to protect human, animal or plant life or health”, has two requirements to be eligible to invoke it;
- Panel must dissect the measure at hand which is required to show that the measures have been taken for purposes of protecting human, animal, plant life or health.
- The measure is “necessary”
Panel assessment procedure-
Concerning the first requirement, the panel must dissect the measure at hand, must go in to the details of the measure and try to establish the rational nexus between the measure at hand and the objective of the paragraph. Here the burden would be to; establish the rational nexus between the objective listed and the measure. The ultimate condition to safely pass through the fire is that the measure must be directly in line with the objectives listed in the paragraph, it cannot be secondary objective, i.e., a measure which in its direct impact is intending to do something else but has health concerns as one of its ancillary outcomes, that measure would fail the test under Article XX(b).
Coming to the second test, the necessary test. Necessary test is a very strict test.The test has two essentials;
- A measure that is indispensable.
- Proportional that is the least trade restrictive measure.
Appellate body gave a tool to the panel to conduct an objective assessment, requiring the panel to ask three essential questions. The question analysis is termed as the weighing and balancing test. To weigh and balance the character of the concerned measure, three questions are to be asked as an assessment of the measure;
- What is the objective the measure is trying to achieve (also is answered by step I of the 2 tier test)?
- What is the degree of contribution between the objectives and the measures; as larger is the degree of contribution; more are the chances is that it is necessary.
- What are the possible alternatives as a member nation can only invoke article XX(b) if there was no alternative left but to form such measure?
As a panel, it is required to undertake its own independent weigh and balance to ask these questions to come to the conclusion if it was actually the necessary measure of the last resort. If the measure passes through and is found to be consistent with requirements of Article XX(b), then we move to the second step, Chapeau test to check the intention of the measure. This test checks whether a measure, in the guise of public health, is trying to create protectionism. Article III (1) provides for preamble obligation of measures being non-discriminatory in nature as well as is bound by the anti-protectionism obligation; meaning that a member nation must not institute any measure as to afford protection for domestic products. Para 1 becomes and takes the shape of a substantive obligation once it is included by reference within para 2 which prohibits internal tax measures to institute protectionism.
This process results in the intention analysis which allows the panel to lift the veil and go behind the measure and look at the real intention. The panel even has the authority to enter a sovereign space and see concerned member nation’s parliamentary debates, cabinet meetings, ministerial statements, industry meetings and the general context of that nation behind that measure, to simply know the intention of the government to take such a measure. If the intention is found at all close to protectionism the measure is denied the defence under Article XX(b).
Appellate body gave the panel a jurisdiction that they must look at the design, structure and architecture of the measure. To establish a measure in good faith, borrow the appellate body’s guiding rule of design, structure and architecture test. Chapeau test is aforementioned for the measure. A successful example of Article XX(b) is the Brazil Tyre case, the Appellate Body upheld the Panel’s finding that the Import Ban was provisionally justified as “necessary” within the meaning of Art. XX(b). The Appellate Body determined that the assessment of whether discrimination is arbitrary or unjustifiable should be made in the light of the objective of the measure, and found that the MERCOSUR exemption had resulted in the Import Ban being applied in a manner that constituted arbitrary or unjustifiable discrimination.
Hence, considering such elaborate scheme of checks and balances it is safe to conclude that under article XX of GATT, the defence is not an easy way out for countries enforcing protectionism and hence does not assist trade gateway blocks. It merely provides for the necessary honest conditions for signatories to protect themselves and the country’s interest, serving as an incentive for future ratifications, whilst maintaining open global trade.
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
IF YOU ARE INTERESTED IN PARTICIPATING IN THE SAME, DO LET ME KNOW.
The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.
If you would also like to contribute to my website, then do share your articles or poems at firstname.lastname@example.org