More on the issue of the aspect of the measure to be examined under Article XX, from last week's DSB meeting:
Australia had reservations about the reasoning applied by the Appellate Body in its application of the necessary test under Article 20 of GATT 1994. According to Australia, the Appellate Body indicated that the analysis of an Article 20(d) exception should focus on whether the differential treatment applied to imported versus domestic cigarettes under the measure was “necessary”, rather that considering whether the measure as a whole was “necessary”. ...
According to the US, in its analysis of Article 20(d) of GATT 1994, the Appellate Body stated that it was the differential treatment that must be “necessary” to secure compliance. For the US, this seemed to be at odds with prior reports in which it was found that it was the “measure” that must be necessary. ...
More here from the U.S. Geneva Mission's copy of the U.S. statement to the DSB:
• In its analysis of Thailand’s defense under Article XX(d) of the GATT 1994, the Appellate Body stated that it is the differential treatment that must be “necessary” to secure compliance. However, this seems at odds with the Appellate Body’s prior reports in which it found that it is the “measure” that must be “necessary.” Like Australia, the United States is concerned with respect to this different approach, which appears to depart from the text of Article XX(d).
