INT’L TRADE LAW BASIC GATT PILLARS: EXCEPTIONS

INT’L TRADE LAW BASIC GATT PILLARS: EXCEPTIONS Prof David K. Linnan USC LAW # 665 Unit Ten

PRINCIPLES & LIMITS RECALL THE FOUR PILLARS Idea of four pillars within GATT/WTO system: 1. Most Favored Nations [GATT art I] 2. National Treatment [GATT art III]] 3. Trade Liberalization (negotiated tariff reductions in trade rounds) [GATT art II] 4. Non-Tariff Barriers & “Fair Trade” [GATT art XI] IF RULES, ESPECIALLY GATT ARTICLES I & III ARE STATED BROADLY, OBVIOUS QUESTION IS HOW TO CARVE OUT EXCEPTIONS IN TERMS OF TEXTUAL BASIS VS INTERPRETATION ALONE [GATT TEXTUAL CHOICE]

TEXTUAL EXCEPTS I TEXTUAL EXCEPTIONS & PRINCIPLED LIMITATIONS 1. GATT art XIX- Import surge 2. GATT art XX a. Public morals b. Protection of human, animal or plant life or health e. Prison labor f. National treasures g. Exhaustible natural resources

TEXTUAL EXCEPTS II TEXTUAL EXCEPTIONS & PRINCIPLED LIMITATIONS (CONT’D) 3. GATT art XXI – National Security 4. GATT art XXIII- Nullification or impairment 5. GATT art XXIV- FTAs, etc.

TEXTUAL EXCEPTS III TEXTUAL EXCEPTIONS & PRINCIPLED LIMITATIONS (CONT’D) 6. GATT art XXV waivers (and art XXX amendments) 7. GATT art XXXV- Non- application NOW TO RETURN TO RATIONALES & EXPLANATIONS OF INDIVIDUAL EXCEPTIONS

GATT ARTICLE XIX LOOK AT ARTICLES XIX, RE IMPORT SURGE If, as a result of unforeseen developments and of the effect of the obligations incurred by a contracting party under this Agreement, including tariff concessions, any product is being imported into the territory of that contracting party in such increased quantities and under such conditions as to cause or threaten serious injury to domestic producers in that territory of like or directly competitive products, the contracting party shall be free, in respect of such product, and to the extent and for such time as may be necessary to prevent or remedy such injury, to suspend the obligation in whole or in part or to withdraw or modify the concession. HOW TO JUSTIFY ABANDONMENT OF OBLIGATIONS IN HARD TIMES?

ART XIX RATIONALE LOOK AT ARTICLES XIX, ESCAPE CLAUSE RATIONALES 1. Restoration of competitiveness (temporary) 2. Orderly contraction & adjustment (longer term) 3. Political safety valve (protectionist pressures) 4. Less fixed/more flexible commitments

GATT ARTICLE XX (1) LOOK AT ARTICLES XX, SEVERAL CLAUSES a. Public morals (blasphemy,pornography & gambling- internet) b. Protection of human, animal or plant life or health (SPS Agreement & matters)

GATT ARTICLE XX (2) LOOK AT ARTICLES XX, SEVERAL CLAUSES e. Prison labor (is this a more general labor & human rights anchor?) f. National treasures (deny a market measure) WHAT IS NOT INCLUDED IN THE EXCEPTIONS THAT YOU BELIEVE SHOULD BE & WHY?

GATT ARTICLE XXI LOOK AT ARTICLES XXI, NATIONAL SECURITY Nothing in this Agreement shall be construed (a) to require any contracting party to furnish any information the disclosure of which it considers contrary to its essential security interests; or (b) to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests (i) relating to fissionable materials or the materials from which they are derived; (ii) relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment; (iii) taken in time of war or other emergency in international relations; or (c) to prevent any contracting party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security. UNPACK SAVINGS CLAUSE STYLE, RATIONALES?

GATT ARTICLE XXIII LOOK AT ARTICLES XXIll, NULLIFICATION & IMPAIRMENT 1. If any contracting party should consider that any benefit accruing to it directly or indirectly under this Agreement is being nullified or impaired or that the attainment of any objective of the Agreement is being impeded as the result of (a) the failure of another contracting party to carry out its obligations under this Agreement, or (b) the application by another contracting party of any measure, whether or not it conflicts with the provisions of this Agreement, or (c) the existence of any other situation, the contracting party may, with a view to the satisfactory adjustment of the matter, make written representations or proposals to the other contracting party or parties which it considers to be concerned. Any contracting party thus approached shall give sympathetic consideration to the representations or proposals made to it. UNPACK RATIONALES?

GATT ARTICLE XXV LOOK AT ARTICLES XXV, WAIVERS 5. In exceptional circumstances not elsewhere provided for in this Agreement, the CONTRACTING PARTIES may waive an obligation imposed upon a contracting party by this Agreement; Provided that any such decision shall be approved by a two-thirds majority of the votes cast and that such majority shall comprise more than half of the contracting parties. The CONTRACTING PARTIES may also by such a vote (i) define certain categories of exceptional circumstances to which other voting requirements shall apply for the waiver of obligations, and (ii) prescribe such criteria as may be necessary for the application of this paragraph(4). UNPACK RATIONALES VS AMENDMENTS?

GATT ARTICLE XXXV LOOK AT ARTICLES XXXV, NON-APPLICATION 1. This Agreement, or alternatively Article II of this Agreement, shall not apply as between any contracting party and any other contracting party if: (a) the two contracting parties have not entered into tariff negotiations with each other, and (b) either of the contracting parties, at the time either becomes a contracting party, does not consent to such application. 2. The CONTRACTING PARTIES may review the operation of this Article in particular cases at the request of any contracting party and make appropriate recommendations. UNPACK RATIONALES, WHY DOES IT EXIST?

INT’L TRADE LAW BASIC GATT PILLARS: EXCEPTIONS