Whither Article XX? Regulatory Autonomy Under Non-Gatt Agreements After China - Raw Materials

In late-January 2012, the Appellate Body to the World Trade Organization (WTO) published its decision in a dispute launched by the United States to protest a series of Chinese measures that restricted the export of certain raw materials out of China (China-Raw Materials). The Appellate Body's decision, as well as marking an important chapter in Sino-US trade relations, provides needed guidance on a much-contested question in trade law circles: when can the savings clause provided by Article XX of the General Agreement on Tariffs and Trade (GATT) be invoked to justify a violation of another WTO agreement? The answer to this question is critical because it could profoundly alter the balance between economic and non-economic rights that the WTO regime protects. In this essay, the authors argue that in China-Raw Materials the Appellate Body created a presumption that GATT Article XX will not be available as a defense to a violation of a non-GATT WTO agreement unless the provision at issue provides a specific textual basis for this. In the view of the authors, the presumption created by the Appellate Body is both well reasoned and sound; it permits the Appellate Body to avoid accusations of judicial activism while helping to ensure that the values inherent in GATT Article XX are protected where there is an objective reason to believe that the drafters intended it to apply