This is from the China - Publications Appellate Body report:
237. The United States expresses "some concerns" regarding the Panel's approach to analyzing the "necessity" of China's measures. The United States' concerns relate to a "two step" approach, allegedly taken by the Panel in examining, first, whether China had made a prima facie case that the measures at issue were "necessary" within the meaning of Article XX(a), and examining only subsequently whether reasonably available WTO-consistent alternatives had been identified. The Panel drew on a statement made by the Appellate Body in Brazil – Retreaded Tyres. However, the United States submits, other Appellate Body reports, in particular US – Gambling and Korea – Various Measures on Beef, described a single process. Moreover, according to the United States, the text of Article XX(a) sets out a single criterion, "necessary", which also suggests a "single, integrated, yet multifaceted inquiry". The United States adds that the preliminary conclusion of the Panel that the State plan requirement is "necessary" to protect public morals "in the absence of reasonably available alternatives" introduces confusion, because the term "necessary" is used in a different sense in this intermediate finding, on the one hand, and in its ultimate finding—that the State plan requirement is not "necessary" in view of a reasonably available alternative—on the other hand.
238. In response to questioning at the oral hearing in this appeal, the United States clarified that it is not raising a claim of error with respect to the way in which the Panel applied the "necessity" test. Instead, the United States stated that it would welcome clarification from the Appellate Body that an Article XX analysis should be approached in an integrated fashion. The United States acknowledged that, in analyzing the "necessity" of a measure, a panel cannot simultaneously assess all relevant factors and undertake the necessary "weighing and balancing" with respect to the contested measure and proposed alternative measures.
So was the U.S. asking the Appellate Body to weigh in on an issue that was beyond the scope of the appeal? Isn't what the U.S. asked the Appellate Body to do in this case similar to what it has objected to in the context of the reappointment of Seung Wha Chang? Or is this case different because a Member was asking the Appellate Body for a clarification, rather than the Appellate Body offering a clarification on its own?
All in all, I'm still not sure what rules could or should be established to constrain the Appellate Body on these kinds of issues. My instinct is that some things just need to be left to the discretion of the courts, but again, if someone has suggestions, I'd be happy to hear them.
