GATT Article XX and Human Rights: What Do We Know from the First 20 Years?

TLDR: In particular, the meaning of some terms in art XX may be capable of evolution as mentioned in this paper, based on the view that certain generic treaty terms were intended to keep pace with evolving societal values and the law in force at any given time.

Abstract: 1 How Broadly Can the Terms of Article XX be Read? The DSS is not a precedential system; its rulings cannot 'add to or diminish the rights and obligations' of the members under the WTO agreements. (100) Nevertheless, prior opinions of the AB carry considerable weight and 'a quick read of any panel or Appellate Body report shows extensive citation to prior reports'. (101) Twenty years of WTO jurisprudence has given ground for some expectation that the terms of art XX may be read expansively, applying 'customary rules of interpretation', as stipulated by DSU art 3(2). Article 31(1) of the VCLT requires that treaties must be 'interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose'. Article 31(1) thus provides a lens through which WTO provisions may be read in light of contemporary norms (including those captured in international treaties), without needing to clear the hurdles posed by art 31(3)(c), discussed above. Over the past 20 years, the AB has shown it is capable of reading art XX broadly. In particular, it is clear that the meaning of some terms in art XX may be capable of evolution. This 'evolutionary approach' is premised on the view that certain generic treaty terms were intended to keep pace with evolving societal values and the law in force at any given time. (102) Two such are the terms 'public morals' in art XX(a) and 'natural resource' in art XX(g). The AB in US--Shrimp held that the Panel had wrongly failed to apply this approach to its interpretation of the phrase 'exhaustible natural resource' in art XX(g). (103) According to the AB, the generic term 'natural resources' in art XX(g) is not 'static' but 'by definition, evolutionary'. (104) In order to obtain a contemporary meaning, the AB referred to a range of international conventions and reached the interpretive conclusion that all natural resources, living and non-living, were included in the term. (105) This interpretive approach indicates that, for generic terms, other international norms may be admitted to aid the interpretive process. On this basis, it could be argued that adjudicators must assess the contemporary context of a country's imposing, for example, a measure to protect public morals. The Panel in United States--Measures Affecting the Cross-Border Supply of Gambling and Betting Services ('US--Gambling') stated that 'the term "public morals" denotes standards of right and wrong conduct maintained by or on behalf of a community or nation'. (106) In China--Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, the Panel treated the term public morals as an evolutionary one, observing that 'the content and scope of the concept of "public morals" can vary from Member to Member, as they are influenced by each Member's prevailing social, cultural, ethical and religious values'. (107) With regard to human rights specifically, James Harrison points out that 'public morals' is a particularly broad term within which 'the full range of human rights norms and principles that are codified in international legal instruments' could properly fall. (108) His view is that WTO jurisprudence suggests that WTO panels and the AB would be likely to take a flexible approach to the definition of the phrase. Robert Howse has also argued that it would be very difficult to sustain an argument that the norms and standards of international human rights law should be excluded from our understanding of what is meant in the contemporary context by public morals. (109) The question remains unresolved, even after the EC--Seal Products dispute. The Panel in that case found that the welfare of seals was an issue of a moral nature in the European Union and, hence, that the measure was one to protect public morals, but the Panel 'did not determine the moral content' of the indigenous exception in the measure. …