In response to the recent post by Nicolas and the subsequent comments, as well as some twitter and email exchanges on the issue, I wanted to offer a few thoughts on the role of WTO exceptions in the context of non-violation claims.
To state the obvious, WTO obligations are not relevant for non-violation claims. These claims are about nullification or impairment of benefits, which exists regardless of whether an obligation has been violated. And if obligations are irrelevant, then exceptions to those obligations could also be seen as irrelevant, as exceptions are invoked when there is an allegation that an obligation has been violated.
On the other hand, one element of the legal standard for non-violation claims is that there must be a "benefit accruing under the relevant agreement." The Japan - Film panel elaborated on this element as follows:
10.76 ... in order for expectations of a benefit to be legitimate, the challenged measures must not have been reasonably anticipated at the time the tariff concession was negotiated. If the measures were anticipated, a Member could not have had a legitimate expectation of improved market access to the extent of the impairment caused by these measures.
While obligations and exceptions are not directly applied in non-violation claims, could there nonetheless be a role for WTO exceptions when considering the reasonable anticipation of measures noted by the Film panel? In this regard, when examining whether a particular measure could have been "reasonably anticipated," you could look at whether it was tied to a public policy objective, such as conservation of exhaustible natural resources under GATT Article XX(g). Where a measure is justified under GATT Article XX, perhaps there is an argument that it should have been reasonably anticipated by the complaining government, as that government was on notice that other governments might take such measures. In this way, the underlying concerns of WTO exceptions could be taken into account in the context of a non-violation claim, even if you cannot invoke these exceptions directly as a defense to such claims.
In my view, however, while reference to the exceptions is a factor that could be considered, any such consideration should not be determinative for a non-violation claim. Even if the measure is justified under an exception, it is not necessarily the case that the complaining government should have anticipated that kind of measure or that particular measure. To illustrate this, let's look at the context of environmental measures. New environmental problems are discovered over time, and it may not be appropriate to expect governments to anticipate that any or all of their exports could be subject to environmental regulation for issues that were unknown at the point in time when a concession was made. Let's say the responding government made a concession on a product in 1947, and the product was discovered to be harmful to human health in 2000 and then banned. I don't think it is reasonable to anticipate product-specific harms, and measures taken in response, that we have no inkling of yet.
Of course, as hinted at above, you could argue that every measure justified under GATT Article XX should be reasonably anticipated, simply by virtue of its justification under that provision. The different approaches are just policy choices, and I don't think it would be a disaster for the system to take an approach that gives primacy to Article XX and other exceptions. Nonetheless, in these situations, the rebalancing that I think non-violations claims are designed to encourage is appropriate.
The EC - Asbestos panel tied these issues to the burden of proof:
8.281 Furthermore, in the light of our reasoning in paragraph 8.272 above, we consider that the special situation of measures justified under Article XX, insofar as they concern non-commercial interests whose importance has been recognized a priori by Members, requires special treatment. By creating the right to invoke exceptions in certain circumstances, Members have recognized a priori the possibility that the benefits they derive from certain concessions may eventually be nullified or impaired at some future time for reasons recognized as being of overriding importance. This situation is different from that in which a Member takes a measure of a commercial or economic nature such
as, for example, a subsidy or a decision organizing a sector of its economy, from which it expects a purely economic benefit. In this latter case, the measure remains within the field of international trade. Moreover, the nature and importance of certain measures falling under Article XX can also justify their being taken at any time, which militates in favour of a stricter treatment of actions brought against them on the basis of Article XXIII:1(b).8.282 Consequently, the Panel concludes that because of the importance conferred on them a priori by the GATT 1994, as compared with the rules governing international trade, situations that fall under Article XX justify a stricter burden of proof being applied in this context to the party invoking Article XXIII:1(b), particularly with regard to the existence of legitimate expectations and whether or not the initial Decree could be reasonably anticipated.
I'm not sure exactly what the panel had in mind, but it may be close to my view, where justification under an exception becomes a factor to consider, but is not determinative by itself.
