Article XX is the main general exceptions provision of the General Agreement on Tariffs and Trade (GATT). In the event of any GATT provision being breached, it is generally accepted that the public policy-oriented defences on health and conservation, among others, are available. In contrast, outside of the GATT, for the various other World Trade Organization (WTO) trade in goods agreements, this availability is often uncertain. While dormant for some time following the cases on China’s Accession Protocol, this is a good moment to bring the issue back to the foreground. Academic work on the value and limitations of Article XX in the face of pressing regulatory challenges (climate change and pharmaceutical resilience) sometimes proceeds on the assumption that the defence is available. Some of the cases have also left the threshold issue of availability unresolved by finding that Article XX, even if available, would not be satisfied. This approach of deferring, and not arriving at, the threshold issue is most recently evident in the US-IRA (China) panel report in relation to the Subsidies and Countervailing Measures (SCM) Agreement. It will not always be possible to put the cart before the horse. The article therefore aims to offer a workable framework for thinking about and resolving the interpretative challenges here.
Legal Issues of Economic Integration