Article XX

As noted above, the party invoking Article XX bears the burden of proving that the contested

measure meets the requirements contained in that provision.

(a) Under Article XX(b)

13. Under paragraph (b), the panel, in US – Gasoline, determined that this demonstration

includes the following steps:

"(1) [T]hat the policy in respect of the measures for which the provision was invoked fell

within the range of policies designed to protect human, animal or plant life or health;

(2) that the inconsistent measures for which the exception was being invoked were necessary

to fulfil the policy objective; and

(3) that the measures were applied in conformity with the requirements of the introductory

clause of Article XX".

• ‘Necessary’ under article XX

[ We do not see that the Appellate Body's approach to the "necessity" analysis in Brazil –

Retreaded Tyres differs from that in US – Gambling, which in turn referred to Korea –

Various Measures on Beef. In each case, a sequential process of weighing and balancing a

series of factors was involved. ….. These three reports also all recognize that a

comprehensive analysis of the "necessity" of a measure is a sequential process. As such, the

and yield a final conclusion.] 1

The AB in Korea-Beef has stated that assessing the "necessity" of a measure involves a

process of weighing and balancing a series of factors:

“In sum, determination of whether a measure, which is not "indispensable", may nevertheless

be "necessary" within the contemplation of Article XX(d),2 involves in every case a process

of weighing and balancing a series of factors which prominently include:

1. the contribution made by the compliance measure to the enforcement of the law or

regulation at issue.

2. the importance of the common interests or values protected by that law or regulation.

3. and the accompanying impact of the law or regulation on imports or exports.

The Appellate Body further clarified in US – Gambling and in Brazil – Retreaded Tyres that

weighing and balancing involves two steps: first, a preliminary analysis of the necessity of

the original measure on the basis of all relevant factors, and second, the conclusion of the

preliminary analysis must be confirmed by comparing the measure with its possible

alternatives.3

Relevant factors- The test involves a process of "weighing and balancing" relevant factors

that include the determination of:

1. The importance of the interests or values at stake;

1
Appellate Body Report, China – Publications and Audiovisual Products, above n 33, para. 242.
2
Although this talks about (d), still adding it because it has further been relied on by the Appellate Body in a
variety of cases.
3
Appellate Body Report, Brazil – Retreaded Tyres, above n 19, para. 178
2. The contribution made by the measure to the achievement of its objective (“when there is a

genuine relationship of ends and means between the objective pursued and the measure at

issue” the measure contributes to the achievement of the objective.4

3. The trade-restrictiveness of the measure.

Possible alternatives-

> Like a “proportionality test”.

> In most cases, the preliminary conclusion of “necessity” needs to be confirmed by

comparing the measure at issue with less trade restrictive alternative measures while

providing an equivalent contribution to the achievement of the objective. A Comparative

analysis with a possible alternative measure required to establish necessity.5

> If an alternative measure cannot achieve the desired level of protection, it could not

reasonably be expected to employ any other measure than the imposed one. 6

THE PROCESS ESSENTIALLY BOILS DOWN TO THIS:

I a preliminary analysis of the necessity of the original measure on the basis of all relevant

factors,mainly the following three:

1. an assessment of the 'relative importance' of the interests or values furthered by

the challenged measure. 7

2. whether the measure establishes a means to an end. 8

4
[ABR, Brazil – Retreaded Tyres, para. 145];
5
[PR –Seal Products, para. 5.214]
6
[ABR, EC – Asbestos, para. 174]
7
Appellate Body Report, US – Gambling, above n 13, paras. 306-307
8
ABR, Brazil – Retreaded Tyres, para.145
 3. its trade restrictiveness. 9

II After this the measures shall be compared with alternatives.

In the Brazil — Retreaded Tyres case, for instance, the Appellate Body found that the import

ban on retreaded tyres was “apt to produce a material contribution to the achievement of its

objective”, i.e. the reduction in waste tyre volumes. The Appellate Body also found that the

proposed alternatives, which were mostly remedial in nature (i.e. waste management and

disposal), were not real alternatives to the import ban, which could prevent the accumulation

of tyres.

CHAPEAU OF ARTICLE XX

First, the measure should not be an arbitrary discrimination against international trade;
second the measure should not be an unjustifiable discrimination against international trade;
and third the measure should not be a disguised restriction on international trade.10 The
Appellate Body has held that the three requirements are related and overlap in a way that is
designed to ensure that the Article XX exceptions are not abused by the contracting parties.

GOOD FAITH UNDER CHAPEAU

The chapeau of Article XX is, in fact, but one expression of the principle of good faith. This
principle, at once a general principle of law and a general principle of international law,
controls the exercise of rights by states. One application of this general principle, the
application widely known as the doctrine of abus de droit, prohibits the abusive exercise of a
state’s rights and enjoins that whenever the assertion of a right “impinges on the field covered
by [a] treaty obligation, it must be exercised bona fide, that is to say, reasonably”. An abusive
exercise by a Member of its own treaty right thus results in a breach of the treaty rights of the
other Members and, as well, a violation of the treaty obligation of the Member so acting.11
the Chapeau “is but one expression of the principle of good faith” designed to prohibit an
abusive exercise of rights. One element of good faith involves procedural fairness.
in both US – Gasoline and US – Shrimp, the United States laws initially came within the
ambit of Article XX(g), as enforcing legitimate policy goals of conservation.
However, both laws failed the discrimination-based test of the Chapeau because the measures
lacked procedural fairness. Namely, the United States discriminated between WTO members

9
All three reports i.e., US-Gambling, Brazil-tyres and Korea-Beef.
10
US – Shrimp, paragraph 150.
11
P.3.1.1 US — Shrimp, para. 158
(WT/DS58/AB/R)
by negotiating with and providing technical assistance to some Caribbean members, but not
to India, Malaysia, Pakistan and Thailand.

Panels and the Appellate Body have held that components of procedural fairness include:
examination of attempts made to negotiate bilateral treaties; analysis of whether national law
has been applied in a transparent and predictable manner; and scrutiny of the measures under
review to establish whether they are sufficiently flexible in application.

• POSSIBLE ALTERNATIVES
 EQUIVALENCE
 The same measure in compliance with the MFN principle
 Different degrees of restrictiveness of the rules of origin
 PARALLELISM z
 INTRODUCE ENEMIES---- Marbled crayfish can be kept with some fish. You can't
keep them with fish that will hunt down and eat a crayfish. This includes cichlids who
will gladly consume as many crayfish as they can find that will fit in their mouths.

An acceptable level of risk can often be achieved in alternative ways. Among the alternatives
— and on the assumption that they are technically and economically feasible and provide the
same level of food safety or animal and plant health — governments should select those
which are not more trade restrictive than required to meet their health objective. Furthermore,
if another country can show that the measures it applies provide the same level of health
protection, these should be accepted as equivalent. This helps ensure that protection is
maintained while providing the greatest quantity and variety of safe foodstuffs for consumers,
the best availability of safe inputs for producers, and healthy economic competition.12

• JUSTIFICATION UNDER ARTICLE XX(g)

W.R.T. the second element of Art. XX(g) the conservation objectives of measures must be
legitimate and the relationship between the measures and the objective sufficiently close. If
the scope of measures is “disproportionately wide”, the means-and-ends test may not be
fulfilled.14
It may be that a trade ban is the only means of ensuring that certain species do not gain entry.
However, if a trade ban were judged to be disproportionate to the achievement of
environmental objectives, the trade ban could be struck down. Much depends on the value
placed upon the “natural resources” or biodiversity under consideration.[ def’s argument –
the Stormian crabs are placed at a very high pedestal]

12
Wto secretariat, understanding the agreement
13
US – Shrimp, paragraph 142.
14
Canada —Measures Affecting Exports of Unprocessed Herring and Salmon paragraph 4.6.
The final element of Article XX(g) is the need to implement conservation measures “made
effective with restrictions on domestic production or consumption.”
The use of the phrase “made effective” does not indicate that measures need to achieve a
degree of effectiveness, or a specified result.15

By and large, Article XX(g) imposes a less burdensome obligation on a defending party than
does Article XX(b). The search is not for the least trade- restrictive measure that can be
reasonably employed, but rather for a determination of whether a balanced approach between
conservation and trade has been achieved.

States need to provide evidence that their quarantine measures fulfil legitimate policy
objectives and that the application of measures is procedurally fair.16

15
Sophie Riley
16
Sophie Riley