GATT Article XX as a Defense to Agreements Other Than the GATT

From today's China - Publications and Audiovisual Products report:

7.743 It is clear that the WTO Agreement includes the GATT 1994, and that the GATT 1994
includes Article XX(a). Nevertheless, China's invocation of Article XX(a) presents complex legal issues. We observe in this respect that Article XX contains the phrase "nothing in this Agreement", with the term "Agreement" referring to the GATT 1994, not other agreements like the Accession Protocol. The issue therefore arises whether Article XX can be directly invoked as a defence to a breach of China's trading rights commitments under the Accession Protocol, which appears to be China's position, or whether Article XX could be invoked only as a defence to a breach of a GATT 1994 obligation. (emphasis added)

When I read that, I got a bit excited:  Were we going to get some guidance on whether Article XX could provide a defense to an agreement other than the GATT?  But then I read further:

7.745 We find it appropriate in this case to follow the approach of the Appellate Body in the US – Customs Bond Directive case. Thus, we will proceed on the assumption that Article XX(a) is available to China as a defence for the measures we have found to be inconsistent with its trading rights commitments under the Accession Protocol. Based on that assumption, we will examine whether the relevant measures satisfy the requirements of Article XX(a). Should we find that this is the case, we would revert to the issue of whether Article XX(a) can, in fact, be directly invoked as a defence to a breach of China's trading rights commitments under the Accession Protocol.

So, the question would only be addressed if the terms of Article XX(a) were met.  At this point, I had a sense of where this was going, and was not surprised by the ultimate conclusion:

7.914 In view of our conclusion that China has in any event not established that the measures at issue satisfy the requirements of Article XX(a), we need not, and hence do not, revert to the issue whether Article XX(a) is in fact applicable as a direct defence to breaches of China's trading rights commitments. We thus take no position on this issue.

We will find out the answer some day, but not today.

ADDED:

Here's a round-up of news stories on the decision:

» The Associated Press: WTO win could open China's door to US companies GENEVA — The United States has won a wide-ranging ruling against Chinese trade practices that could provide massive market opportunities for American makers of everything from CDs and DVDs to music downloads and books.

» BBC NEWS | US wins trade case against China The US has won a ruling at the World Trade Organisation (WTO) against China's restrictions on the import of American DVDs and other media products.

» WTO win could open China's door to US companies - Yahoo! News GENEVA – The United States has defeated China in a wide-ranging ruling at the World Trade Organization that could provide massive market opportunities for American makers of everything from CDs and DVDs to music downloads and books.

» U.S. prevails in WTO case against China - Hollywood Reporter The World Trade Organization released a report Wednesday that in key points agreed with a U.S. complaint that China is forcing U.S. companies to sell copyright-protected products, such as films, music and books, through state-run or -approved businesses.

» TheHill.com - Obama, entertainment industry win China WTO case The Obama administration is touting a trade court ruling as a major victory in the battle to increase the distribution of U.S. films, music and books in China.

» WTO dispute panel raps China on audiovisual goods| Reuters GENEVA (Reuters) - China's regime for importing and distributing audiovisual material such as books and films breaks international trade rules and should be revised, a World Trade Organization (WTO) dispute panel said on Wednesday.

» World Trade Organization Report Upholds U.S. Trade Claims Against China | Office of the United States Trade Representative WASHINGTON, D.C. - U.S. Trade Representative Ron Kirk welcomed the results of a World Trade Organization (WTO) dispute settlement panel report made public today. The report found that major Chinese restrictions on the importation and distribution of copyright-intensive products such as theatrical films, DVDs, music, books and journals are inconsistent with China's WTO obligations.

» WTO dispute panel raps China on audiovisual goods| Reuters GENEVA, Aug 12 (Reuters) - China should revise rules that restrict the import and distribution of audiovisual material like books and films, a World Trade Organisation (WTO) dispute panel said on Wednesday.

» WTO Says Chinese Curbs on Sale of U.S. Goods Unfair (Update2) - Bloomberg.com Aug. 12 (Bloomberg) -- Chinese limits on the sale of books, films and music from the U.S. violate global commerce rules, the World Trade Organization ruled, handing President Barack Obama’s administration its first trade victory against China.

» U.S. sees significant win in China trade dispute| U.S.| Reuters WASHINGTON (Reuters) - The United States has chalked up a big win at the World Trade Organization against Chinese market barriers that encourage piracy of U.S. books, music and films, U.S. Trade Representative Ron Kirk said on Wednesday.