Rüdiger Wolfrum, Peter-Tobias Stoll and Holger P. Hestermeyer (eds), WTO—Trade in Goods.

© 2010 Koninklijke Brill NV. Printed in the Netherlands. pp. 464–478

Article XX
General Exceptions [Chapeau]

Subject to the requirement that such measures are not applied in a manner which would
constitute a means of arbitrary or unjustifiable discrimination between countries where
the same conditions prevail, or a disguised restriction on international trade, nothing in
this Agreement shall be construed to prevent the adoption or enforcement by any con-
tracting party of measures:

Bibliography
S. Charnovitz, Exploring the Environmental Exceptions in GATT Art. XX, JWT 25 (1991)
37–55; WTO, Analytical Index: Guide to GATT Law and Practice, Vols I and II, 6th ed.,
1995; A. Appleton, GATT Article XX’s Chapeau: A Disguised ‘Necessary’ Test?: The WTO
Appellate Body’s Ruling in United States—Standards for Reformulated and Conventional
Gasoline, RECIEL 6 (1997), 131–138; A. Bree, Article XX GATT—Quo Vadis? The
Environmental Exception after the Shrimp—Turtle Appellate Body Report, Dick. J. Int’l
L. 17 (1998–1999), 99–134; B. Neuling, The Shrimp/Turtle Case: Implications for Article
XX of GATT and the Trade and Environment Debate, Loy. L. A. Int’l & Comp. L. Rev.
22 (1999–2000), 1–50; P. Mavroidis, Trade and Environment after Shrimps—Turtles
Litigation, JWT 34 (2000), 73–88; S. Gaines, The WTO’S Reading of the GATT Article XX
Chapeau: A Disguised Restriction on Environmental Measures, U. Pa. J. Int’l Econ. L. 22
(2001), 739–861.

Case Law
Panel Report, US—Canadian Tuna, BISD 29S/91; Panel Report, US—Spring Assemblies,
BISD 30S/107; Panel Report, Canada—Herring and Salmon, BISD 35S/98; Panel Report,
US—Tuna (Mexico), BISD 39S/155 (not adopted); Panel Report, US—Tuna (EEC),
DS29/R (not adopted); Appellate Body Report, US—Gasoline, WT/DS2/AB/R; Panel
Report, US—Shrimp, WT/DS58/R; Appellate Body Report, US—Shrimp, WT/DS58/AB/R;
Panel Report, US—Shrimp (Art. 21.5—Malaysia), WT/DS58/RW; Appellate Body Report,
US—Shrimp (Art. 21.5—Malaysia), WT/DS58/AB/RW; Panel Report, EC—Asbestos, WT/
DS135/R; Appellate Body Report, EC—Asbestos, WT/DS135/AB/R; Panel Report, EC—Tariff
Preferences, WT/DS246/R; Appellate Body Report, Brazil—Retreaded Tyres, WT/DS/332/
AB/R.

Table of Contents
A. General 1
B. Drafting History 5
C. Interpretative Development of the Normative Concept 7
I. US—Gasoline and the General Structure 8
II. Further Developments 13
1. The Reports in General 14
2. A “Balance of Rights and Obligations”? 21
D. Textual Interpretation 29
I. Focus of the Chapeau: Application of Measures 29
II. Unjustifiable Discrimination 32
IV. Failure to Negotiate 36
V. Arbitrary Discrimination 40
VI. Countries Where the Same Conditions Prevail 43
VII. Disguised Restriction of International Trade 45

A. General

The Chapeau contains two elements, one of an affirmative nature stating 1

that “nothing in this Agreement shall be construed to prevent the adoption

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 article xx 465

or enforcement by any contracting party of measures . . .”, and one formulat-

ing a condition subjecting these measures “. . . to the requirement that such
measures are not applied in a manner which would constitute a means of
arbitrary or unjustifiable discrimination between countries where the same
conditions prevail, or a disguised restriction on international trade”.
The textual interpretation of Art. XX as a whole and the relationship 2
between these two parts of the article have been controversially discussed
in the case law of the dispute settlement system of the WTO as well as in
literature.1 Various theories have been advanced in the literature concern-
ing the object and purpose of the Chapeau of Art. XX.
The Appellate Body report on US—Shrimp characterized the task of inter- 3
preting the Chapeau as “the delicate one of locating and marking out a
line of equilibrium between the right of a Member to invoke an exception
under Article XX and the rights of the other Members under varying sub-
stantive provisions . . . of GATT 1994.”2 According to the Appellate Body
the “line of equilibrium” should ensure that “neither of the competing
rights will cancel out the other and thereby distort and nullify or impair
the balance of rights and obligations constructed by the Members them-
selves in that Agreement.”3
It has also been stated that the Chapeau of Art. XX should protect against 4
abuses of rights under Art. XX lits a-j.4 These approaches to the interpre-
tation of the Chapeau are not necessarily mutually exclusive. The difficulty
of interpreting the Chapeau in fact rests first in establishing the content of
the conditionalities as formulated in the Chapeau and, secondly, in find-
ing an adequate relationship between such conditionalities and the rights
WTO Members enjoy in formulating their national policies according to
Art. XX lits a-j.

B. Drafting History

The drafting history of Art. XX in general is not enlightening. However, 5

that of the Chapeau gives some indication of the intentions of the draft-
ers.5 The first draft of GATT proposed by the United Kingdom and the
United States in December 1945 provided for the customary exceptions to

1
Bree, Dick. J. Int’l L. 17 (1998–1999), 99–134; Neuling, Loy. L.A. Int’l & Comp. L.
Rev. 22 (1999–2000), 1–50; Mavroidis, JWT 34 (2000) 1, 73–78; Gaines, U. Pa. J.Int’l Econ.
L. 22 (2001), 739–862.
2
Appellate Body Report, US—Shrimp, WT/DS58/AB/R, para. 159.
3
Ibid., para. 159.
4
Ibid., para. 158.
5
See in general Charnovitz, JWT 25 (1991) 5, 37, 38–47; Neuling, Loy. L.A. Int’l &
Comp. L. Rev. 22 (1999–2000), 1, 13–16.
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