I was struck by this sentence from para. 5.56 of yesterday's China - Rare Earths Appellate Body report (made in the context of discussing the relationship between China's Accession Protocol and the Marrakesh Agreement/Multilateral Trade Agreements):
Article XX of the GATT 1994 has been found by the Appellate Body not to be available to
justify a breach of the Agreement on Technical Barriers to Trade (TBT Agreement).479479 See Appellate Body Report, US – Clove Cigarettes, paras. 96 and 101.
I hadn't recalled such a finding, so I looked up the citations to Clove Cigarettes. Here's para. 96:
96. The balance set out in the preamble of the TBT Agreement between, on the one hand, the desire to avoid creating unnecessary obstacles to international trade and, on the other hand, the recognition of Members' right to regulate, is not, in principle, different from the balance set out in the GATT 1994, where obligations such as national treatment in Article III are qualified by the general exceptions provision of Article XX.
And here's para. 101:
101. Finally, we observe that the TBT Agreement does not contain among its provisions a general exceptions clause. This may be contrasted with the GATT 1994, which contains a general exceptions clause in Article XX.
I don't read those paragraphs as saying that GATT Article XX cannot be used as an exception to TBT Agreement obligations. Instead, I read them as saying, basically, that the TBT Agreement does not have an equivalent to Article XX.
In Clove Cigarettes, the U.S. did not invoke Article XX as an exception to the TBT claims, so the question of whether Article XX was available as an exception did not come up.
Not that I think the Appellate Body is likely to find that Article XX can be used an exception to the TBT Agreement. I was just surprised by the declaration that it cannot, based on those Clove Cigarettes passages.
Any other opinions on this? Am I mis-reading things?
