GATT Article XX and Baluchistan's pork import restrictions from swine flu outbreak

Trade Law

International Trade Cases

While the General Agreement on Tariffs and Trade does provide for the ability to restrict trade, and even to selectively restrict trade, for reasons of protection the health of a nation, this provision is far from absolute and can old be made in certain ways, and when specific conditions are met (Article XX). In order for Baluchistan to be successful in preventing the importation of pork and pork containing products that originated in the United States, where an outbreak of swine flu has raised serious concerns about the safety of pork/pork products, the restrictions in trade must be properly limited to block only those products with a strong likelihood of presenting a public health risk to Baluchistan. While it is fairly certain that a ban on imports of pork and pork containing products from the United States would hold up to appeal and further scrutiny, it is less clear that imports from Canada and Mexico can also be banned, and far less clear that intermediary country's products can be effectively blocked.

In the case of the United States' own pork products, there is a demonstrable risk given the outbreak of swine flu and the confirmed cases of human infection in that country. As Article XX of the GATT allows for the blocking of imports that could cause health issues so long as they are not disguised attempts at restricting international trade, Baluchistan is completely within its contractual rights in implementing this ban. The United States could argue that such a move is not "necessary" as used in Article XX, but this is likely a losing battle.

The same argument could be used by Canada and Mexico, of course, and could argue that it is even less necessary for Baluchistan or any other country to restrict the importing of pork and pork containing products from these countries as there are other means for controlling the safety of these country's exports in this regard without requiring an outright ban (Appellate Report on Brazil Tyre case). In order to win a judgment in its favor should Canada and/or Mexico file a complaint against the ban once implemented, Baluchistan would need to demonstrate that it could not effectively ensure that the pork or pork containing products being imported from these countries was safe and did not originate from the United States, making it truly necessary for the ban to be put in place. While it might be true that there is no effective way to tell when pork/pork products being exported from Canada and/or Mexico actually originated in the United States, the simple existence of NAFTA does not in and of itself prove that such ambiguity exists. Baluchistan would need to demonstrate that current tracking procedures an policies, which do exist, are inadequate and that therefore potentially infected meat from the United States could enter Canadian and/or Mexican products freely. If this is not the case, then the ban would not be necessary.

For Baluchistan, the question here is more a matter of fact than of law as the law has already largely been determined as it applies in this case (Appellate Report on Brazil Tyre case). If it can be demonstrated that there is a factual basis for concern that pork from the United States could unknowingly end up in products sold by Canada and Mexico due to NAFTA, then the ban could be sustained against these two countries as well. If not, it can't.

The same problem exists, only to a higher degree, when it comes to the issue of other intermediary countries. With such intermediaries that re not only outside the United States but also outside the NAFTA region, it should be far easier to determine if pork and pork containing products contain any meat or came into contact with any meat originating in the United States. Because it would be easier to determine if the meat potentially came from the United States and thus had a higher risk of causing health problems in Baluchistan, it would be more difficult to prove that such a ban was necessary. This would also require Baluchistan to demonstrate the inefficacy of tracking methods and procedures in identifying and excluding United States-originating pork for each individual country that lodged a complaint, and potentially to each and every country affected by the ban on imports.

Part B

The actions taken by Eastasia in creating favorable conditions for the production and sale of Eastasia-language materials and specifically unfavorable conditions for all import from Westasia is In direct contradiction of certain provision of both GATT and GATS. These measures are unnecessarily restrictive, quite singular and specific in their discrimination, and highly manipulative to international trade -- unabashedly and openly so, as a matter of fact -- all of which run against the letter and the spirit of GATT/GATS. It is true that the shared history and current status of Eastasia and Westasia warrant some level of protectionism on the part of the former, but such selective and highly prejudicial restrictions are not called for.

The first protectionist measure that Eastasia is taking and that should be challenged with a Panel review is the creation of a tax on materials not in the Eastasian language, which creates a clear and undeniable distinction between Eastasian products and like products in any language other than Eastasian, putting the measure in violation of Article 1 of the GATT as well as against the very spirit of the agreement as a whole. There is no necessity for this measure found under Article XX, either, and the only possible reason for the creation of this special tax would be to make it more difficult to sell materials in languages other than Eastasian, and to promote the sale of Eastasian-language materials. The need for cultural strengthening and wider Eastasian leanring might be a laudable and even a necessary goal, but these are hardly the measures by which to accomplish these ends and the measure can be challenged using Article 1 as well as several other articles of the GATT and GATS agreements.

The primary defense that Eastasia is likely to raise in this case is that its tax affects both domestic and international products equally, and that materials produced in the Eastaiasn language should not be considered "like products" with those produced in other languages. It has previously been argued that certain media features can differentiate product type, and given the cultural issues that Eastasia has faced in its history and is facing in the current era, it would not be entirely unreasonable to assert that an Eastasian book (for example) is not like a Westasian book simply based on the language and culture that produced it. This does not meet the necessity standard of Article XX, however, and could be surmounted.

The second measure recently implemented by Eastasia actually presents greater unfairness in trade and a grosser violation of GATS/GATT than the first provision. By specifically restricting trade with Westasia/Westasian-owned business to channels approved of and often created/operated by the Eastasian government, the country is not only creating a clear disparity in economic trade for no reason other than another country's identity. This disparity is again in direct violation of Article 1 of GATT as well as many other subsequent articles, including Articles VIII, XIII, and others. It leads to all imports from Westasia and all export to Westasia being treated different and separately than products coming from or going to all other countries, necessarily making the cost of business higher for Westasian companies and the profit margins lower. Though this would be counter to the agreements regardless, there is not even a clear definition of how this provision is supposed to assist Eastasia or be anything other than punitive to Westasia, which is again counter to GATT.

The state-control element of this particular measure is also cause for other concerns and grounds for other challenges of Eastasia's actions. Reviews and Panels have consistently struck down state-operated organizations that grant themselves a monopoly in the trade or distribution of certain products of a certain types or that are otherwise classified and marked for government control for reasons other than a demonstrable regulatory need (Appellate Report on China's Media Distribution). It is unfathomable that Eastasia could even attempt to justify a need to regulate business with Westasia simply because of the Westasian connection.

There are, however, some means by which Eastasia might attempt to justify its decision to limit and strictly control -- through state approved/controlled entities -- trade with Westasia and Westasian countries. An argument could be raised under Artcle XXI of GATT arguing that this protectionist measure is necessary or at least allowable given a state of "international emergency," namely the economic depression Eastasia is facing with limitless means of surmounting in the current situation. As Westasia is both geographically and historically quite close to Eastasia and has much stronger infrastructure and production capabilities, it makes sense that trying to limit and control trade with this country could be key in helping Eastasia build its own modern and growing economy. The measure implemented is still highly prejudiced and does little to spur economic growth or to regulate trade in an open and effective manner, and as such should be easily defeated by a Panel review.

Question 2

Though the general purpose of the GATT conyract and the World Trade Organization is to promote freer trade throughout its member nations, this is not an absolute. There are several provisions that allow the United States to implement trade barriers that help to protect Solario's business, and thus the country's own economy (at least in part). Bringing in CAA might cloud the issue, and it is simple enough to push for protection in a smaller fashion.

Articles II ad III of the GATT contract explicitly allows for any charge to be levied against an import that is equivalent to domestic charges for domestically produced like products. As zenan is of a demonstrably and known higher quality than imported products, the argument could be made that it is not a lie product, and taxes could be imposed on the lower-quality imported products while allowing zenan to remain competitive. Though outright protectionism is frowned upon by the World Trade Organization and all but condemned in Article III of GATT, in this instance consumer protection would also be achieved -- the market is being flooded by cheaper and lower-quality imports, and the dissolution of the United States' manufacturer of zenan, Solario. would be of detriment to domestic and foreign consumers. Differentiating the products and imposing a tax on the lower-quality products coming into the country is entirely within the scope of the GATT contract.

Question III

The legacy of Article XX of the GATT contract has been mixed, to say the least. This is not to ay that the Appellate Board has been inconsistent in its application and interpretation of specific sections and provisions within this article, but the different sections have led to very different results. Overall, Article XX still seems to be in formation, though with greater latitude given to internal sales and trade issues. Generally speaking, Article XX has not often been used very effectively to maintain a questionable import or export policy, despite the breadth of issues that its many different sections seem to cover.

In the U.S. shrimp case, even efforts to save endangered species were not seen as a justifiable reason for implementing trade restrictions against specific countries; though there were not strong protectionist effects or efforts had by the mandate by the United States that shrimping trawlers take certain measures to protect other marine life, this law was still seen as in conflict with certain principles of the GATT contract, and the Appellate Board recommended that the United States adjust this law to keep it in accordance with GATT. Similar conclusions were reached in the Brazil tyre case and the Japan Liquor Tax case. Both countries received recommendations to adjust their laws for a more appropriate and cohesive keeping with the GATT contract, Brazil for a variety of complex reasons but ultimately coming down to a question of facts to a large degree, and Japan because the liquor tax the country imposed was seen as almost directly protectionist, again flying in the very face of the GATT contract and the principles of the World Trade Organization. In all of these cases, Article XX exceptions were sought to known/acknowledged violations of other articles within the GATT contract, and in all of these cases the Article XX arguments were rejected by the Board.

China met with success, however, earning the right to continue creating and distributing certain types of media through state-controlled channels. This created some unfair practice accusations, but using a public moral argument China was able to maintain its rather protectionist stance. As a more internal manner, it is possible the Appellate Board was less inclined to vigorously pursue potential violations.