WTO Dispute Settlement Mechanism(2)/刘成伟(41)
As to the first preliminary objection, the Panel finds as follows:7
“The EC seem to believe that the fact that a measure is ‘justified’ on the basis of Article XX creates a legal situation different, on the one hand, from the situation in which the measure violates a provision of the GATT 1994 and, on the other, from the situation in which the measure does not fall under the provisions of the GATT 1994. In support of their position, the EC cite a passage from the Panel Report in Japan - Film which mentions that Article XXIII:1(b) provides ‘the means to redress government actions not otherwise regulated by GATT rules …’. The Communities also refer to the introductory clause of Article XX which states that ‘nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures’ necessary to protect human life or health.
The Panel recalls, first of all, that both the preamble to Article 26.1 of the Understanding and Article XXIII:1(b) use the words ‘measure, whether or not it conflicts with the provisions [of the particular agreement]’. To begin with, it should be noted that the wording of Article XXIII:1(b) shows unequivocally that this provision applies both in situations in which a measure conflicts and in situations in which it does not conflict with the provisions of the GATT 1994. Above, we found that the treatment accorded by the Decree to chrysotile asbestos fibres violated Article III:4 of the GATT 1994 as such, in as much as these products were like the substitute fibres mentioned by the parties and the treatment of products containing chrysotile asbestos and products containing the substitute fibres mentioned by the parties was discriminatory. Accordingly, the Decree conflicts with the provisions of Article III:4, in the sense in which that word is used in Article XXIII:1(b). However, we note that the introductory clause of Article XX states that ‘nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures’ necessary to protect human life or health, which might suggest that a provision consistent with the requirements of Article XX no longer conflicts with Article III:4, because Article III:4 cannot be construed as preventing this kind of measure. However, whether a measure justified on the basis of Article XX of the GATT 1994 is considered still to be in conflict with Article III:4 or is considered no longer to conflict with Article III:4 because justified under Article XX, under the terms of Article XXIII:1(b) the latter continues to be applicable to it.
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