Following up on posts here, here, here and here about GATT Article XX as a defense to claims under non-GATT agreements, this is from last Tuesday's China - Raw Materials panel report:
7.152 This brings us to the issue of whether Article XX of the GATT 1994 can be invoked to justify a violation of a provision falling outside the GATT 1994.
7.153 The Panel notes that Article XX provides that "nothing in this Agreement should be construed to prevent the adoption or enforcement ... of [certain] measures...:" A priori, the reference to this "Agreement" suggests that the exceptions therein relate only to the GATT 1994, and not to other agreements. On occasion, WTO Members have incorporated, by cross-reference, the provisions of Article XX of the GATT 1994 into other covered agreements. This was done, for example, with the TRIMs Agreement, which explicitly incorporates the right to invoke the justifications of Article XX of the GATT 1994. In the Panel's view, the legal basis for applying Article XX exceptions to TRIMs obligations is the text of the incorporation of the TRIMs Agreement, not the text of Article XX of the GATT 1994. Other WTO agreements include their own exceptions. For example, general exceptions are provided for in Article XIV of the GATS for GATS violations. Other covered agreements, like TRIPS, the TBT or the SPS agreements, include their own flexibilities and exceptions.
7.154 In the Panel's view, it is reasonable under these circumstances to assume that, were GATT Article XX intended to apply to Paragraph 11.3 of China's Accession Protocol, language would have been inserted to suggest this relationship. However, as noted above, no such language is found in Paragraph 11.3 of China's Accession Protocol.
Press reports indicate that China will appeal this panel report, so perhaps we will get some additional thoughts from the Appellate Body on the relationship between GATT Article XX and non-GATT agreements.
