Mexico's initial written submission in the GE Corn USMCA dispute was recently posted. The English public version is here. There's a lot in there and I'm not going to go through it all in this post. I just thought it was worth noting quickly the exceptions that Mexico invoked.
Recall that the U.S. claims were under the SPS chapter (Chapter 9) and Article 2.11. In addition to arguing that there were no violations of these provisions, Mexico invoked several exceptions in response (note that I'm only providing below brief excepts of the arguments).
First, Mexico invoked USMCA Article 32.1.1, which applies the GATT Article XX exceptions to a number of USMCA chapters, including the SPS one (interestingly, the conventional wisdom is that the GATT Article XX exceptions would not apply to the WTO SPS Agreement):
486. Mexico's position is that none of these measures are inconsistent with Mexico's obligations under the USMCA. However, if the Panel determines that any of the measures are inconsistent with any provision of Article 9.6 or Article 2.11 of the USMCA, Mexico contends that such inconsistencies are justified under Article 32.1.1 of the USMCA.
487. Article 32.1.1. of the USMCA provides in relevant part as follows: “For the purposes of Chapter 2 (National Treatment and Market Access for Goods), [...] [and] Chapter 9 (Sanitary and Phytosanitary Measures), [...] Article XX of the GATT 1994 and its interpretative notes are incorporated into and made part of this Agreement , mutatis mutandis”.
Specifically, Mexico invoked Articles XX(a) and XX(g):
1. Arguendo, the “End-Use Limitation” and the “Gradual Substitution” are necessary measures to protect native corn, the milpa, the biocultural wealth and the gastronomic heritage of Mexico under the terms of Article XX (a) of GATT 1994
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496. WTO panels have determined that the following types of policies pertain to public morals: preventing gambling by children and adolescents and protecting pathological gamblers (US -Gambling); restricting prohibited content in cultural goods, such as violence or pornographic content, as well as protecting traditional Chinese culture and values (China - Publications and Audiovisual Products); protecting animal welfare (EC - Seal products); combating money laundering (Colombia - Textiles); reducing the “digital divide” within society and promoting social inclusion (Brazil - Taxation); and Halal protection (Indonesia - Import Licensing Regimes). The general nature of Mexico's policy is certainly similar to those noted above. In particular, the protection of native corn varieties is similar to the protection of animal welfare in the context of agricultural products.
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2. Arguendo, the “End-Use Limitation” and the “Gradual Substitution” are measures relating to the conservation of the biodiversity and genetic integrity of native corn varieties as “exhaustible natural resources” within the meaning of Article XX (g) of GATT 1994
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506. The measures at issue relate to the conservation of a natural resource, namely Mexico’s native varietals and landraces of corn and maize, including their biodiversity and genetic integrity. This biodiversity encompasses the natural genetic and phenotypic diversity of the many unique varietals and landraces cultivated in Mexico. It has been developed through generations of traditional Mexican agriculture in different biomes and habitats throughout the country, resulting in a robust genetic diversity and a range of colours, flavours, and other characteristics important to Mexican culture, traditions, and gastronomic heritage.
507. This natural resource is exhaustible because Mexico’s native corn, including its natural biodiversity and genetic integrity, is under threat of loss and possibly extinction as evidenced through the transgenic contamination of native corn in Mexico. The conservation objective is one of the “main purpose[s]” of the measures at issue, and it is expressly stated the 2023 Decree. The people of Mexico take the conservation of this natural resource extremely seriously, and this is demonstrated by the current class action lawsuit that has resulted in a moratorium on the cultivation of GM corn crops in Mexico.
Finally, Mexico invoked Article 32.5 on indigenous peoples:
L. Arguendo, the “End-Use Limitation” and the “Gradual Substitution” are necessary measures to comply with the legal obligations for Mexican farming communities in terms of Article 32.5 of the USMCA.
527. Alternatively, assuming without conceding that the measures identified by the United States are in violation of the USMCA, they would be exempted under Article 32.5 of the USMCA.
528. Specifically, this provision states the following:
Provided that such measures are not used as a means of arbitrary or unjustified discrimination against persons of the other Parties or as a disguised restriction on trade in goods, services, and investment, this Agreement does not preclude a Party from adopting or maintaining a measure it deems necessary to fulfill its legal obligations to indigenous peoples. [Emphasis added]
529. From the reading of this provision, it is clear that a measure may be exempted when: i) it is not used as a means of arbitrary or unjustified discrimination against persons of the other Parties to the USMCA, or as a disguised restriction on trade in goods, services or investment; and ii) it is adopted or maintained because it is considered necessary to comply with any of the legal obligations established for a Party with respect to indigenous peoples.
530. Specifically, Mexico considers that the provisions in the 2023 Decree, including the measures at issue in this dispute, are necessary to comply with Mexico’s legal obligations to indigenous people in Mexico under Article 2 of the Constitution, Mexico’s Federal Law for the Protection of the Cultural Heritage of Indigenous and Afro-Mexican Peoples and Communities, Article 21 of the Pact of San José (as interpreted by the Inter-American Court of Human Rights), and ILO Convention 169 on Indigenous and Tribal Peoples in Independent Countries.
ADDED:
I thought it was worth mentioning that the indigenous peoples exception uses "deems necessary," so presumably it's more like the security exception than the general exceptions. This raises the question of how the U.S. will react to someone using this kind of exception against it. Will the U.S. try to distinguish the security and indigenous exceptions somehow? On what basis? "Deems" pretty much means "considers". Mexico says: "it is an internal and exclusive analysis of that Party, so it is sufficient that, in the opinion of the Party and not of the others, the measure maintained or adopted is necessary." Kind of sounds like "self-judging".
ANOTHER ADDITION:
As Jesse Kreier points out in the comments, the "arbitrary or unjustified discrimination / disguised restriction on trade" part does not seem to be subject to the "deems necessary" language, so even if "deems necessary" is self-judging, there are parts of the provision that are not self-judging.
