If I had been blogging in 1990, I probably would have commented on this statement by the Thailand - Cigarettes GATT panel:
73. The Panel then defined the issues which arose under this provision. In agreement with the parties to the dispute and the expert from the WHO, the Panel accepted that smoking constituted a serious risk to human health and that consequently measures designed to reduce the consumption of cigarettes fell within the scope of Article XX(b). The Panel noted that this provision clearly allowed contracting parties to give priority to human health over trade liberalization; however, for a measure to be covered by Article XX(b) it had to be "necessary".
Setting this up as a contrast between human health and trade liberalization, and stating that human health may have "priority," doesn't seem like the right characterization of the issue. To me, provisions such as GATT Articles III, XI and XX all work together to set the boundaries of the obligations under trade rules. They determine which measures improperly interfere with trade liberalization and which do not. It is not about giving priority to some policies over others, but rather establishing the scope of trade rules.
Here, Article XX(b) was raised a defense to an import ban -- in particular, a failure to grant import licenses -- that violated GATT Article XI. Thus, I see the larger question as the following: Was the import ban protectionist, or was it about human health? There weren't two competing policy goals, human health and trade liberalization, that conflicted. Rather, the task was to identify the true nature of this measure, and on that basis determine whether it was permitted under the GATT.
