Over at Opinio Juris, Roger Alford writes the following on GATT Article XX and extraterritoriality:
One of the most significant questions under GATT Article XX is whether States can violate WTO rules in order to protect against foreign harms. It is an issue that has plagued the GATT/WTO for almost twenty years, most famously in the Tuna-Dolphin and US–Shrimp cases. If, for example, Article XX(b) allows departures from WTO rules “to protect human, animal, or plant life or health,” does this mean that States can take action to protect human or animal health or life at home and abroad? It is a critical question for countries wishing to limit the importation of goods or services that are produced in violation of core human rights or environmental treaties.
...
What I find amazing in every discussion I have seen about Article XX is the failure to read the general exceptions in their context. Under VCLT art. 31(2), whether one can regulate foreign harms to human health or safety under Article XX(b) or exhaustible natural resources under Article XX(g) must be read in the context of the other exceptions.
Those other exceptions leave no doubt that they allow WTO members to regulate foreign harms. Article XX(e) is an exception “relating to the products of prison labour,” an exception added by the United States to allow import restrictions on products produced by involuntary servitude. Article XX(j) relates to measures taken for products in “general or local short supply” and references the equal entitlement to the international supply of products in short supply. Article XXI allows security regulations of fissionable material, a clear reference to trade restrictions preventing other countries from using such material to build nuclear weapons. It also allows Member State action pursuant to obligations under the U.N. Charter, a reference to, inter alia, Security Council resolutions imposing trade embargoes on countries that threaten international peace and security.
If these exceptions allow Member States to regulate foreign harms, why should the other exceptions not be interpreted to authorize a Member State to regulate foreign harms? Moreover, VCLT 31(3) requires treaty provisions to be interpreted in light of subsequent agreements between the parties and relevant rules of international law applicable between the parties. If treaties or international law principles of prescriptive jurisdiction allow Member States to regulate extraterritorial harms, then this too should inform the interpretation of the Article XX exceptions.
On this theory, Member States should be able to take measures under Article XX(a), (b), or (g) to promote human rights or environmental concerns arising in other countries, even if those harms are not manifest in their own jurisdiction.
I think I agree with his conclusion that Article XX permits WTO Members to act to prevent foreign harms. It's a close call, but on balance that's probably the way I would come out.
Here are two issues I wonder about, though. First, should we give more deference to measures where domestic concerns are at stake, and look more critically at measures designed to promote specific policies abroad? Should there be a higher burden to satisfy if it is a foreign harm you are addressing? I'm not sure how the language of the GATT could justify this. It might require some creative "object and purpose" type arguments. But regardless of whether you could get there as an interpretive matter, maybe it would be a good approach.
Second, the purposes pursued in Article XX and other exceptions are different in nature, and affect trade in different ways. Is it possible that addressing foreign harms would be allowed for some issues and not others? For example, and I don't mean to take a position on this, but could it be the case that "public morals" is a more "personal" issue, and thus trying to promote morals in a foreign country is more intrusive than, say, protecting the environment abroad?
