Indigenous Interests and the Chapeau of Article XX: Equality of What?
American Journal of International Law Unbound, 2015
Posted: 15 Oct 2015
Date Written: June 19, 2015
Abstract
My analysis focuses on a limited aspect of the Appellate Body’s (AB) EC-Seal Products decision under the chapeau of Article XX of the General Agreement on Tariffs and Trade (GATT). It is revelatory for the kind of discrimination at issue under the chapeau in surprising ways. The general exceptions in Article XX serve to justify measures infringing other GATT provisions that have a close nexus to a list of types of public policies. The list of public policies is exhaustive. The chapeau prohibits application of those measures that arbitrarily or unjustifiably discriminate between countries where the same conditions prevail or that constitute a disguised restriction on international trade. Quite naturally, this raises the question of ‘discrimination in respect of what’? I will focus on paragraph 5.337 of the EC-Seal Products Appellate Body’s report that sheds some light on this question.
Keywords: WTO law, GATT, Article XX, chapeau
JEL Classification: F15, F19, K33
Suggested Citation: Suggested Citation