WTO Dispute Settlement Mechanism(2)/刘成伟(46)
In this respect, we note that the EC consider that Canada's reading of the preparatory work is selective. According to them, the potential problems of abuse and bad faith to which Canada alludes are adequately covered by the chapeau of Article XX. For the EC, there cannot be two sets of provisions which address the same problem twice.
Although it is not necessary to take a position on the content of the preparatory work, we consider that the EC's argument tends to confuse two aspects: the first is abuse resulting from the application of a measure falling within one of the paragraphs of Article XX. If a measure necessary to protect human health is applied in a manner that conflicts with the provisions of the introductory clause of Article XX, the measure will still be in conflict with the provisions of the GATT whose violation Article XX is supposed to justify. This aspect is very different from the situation in which a measure is perfectly justified in itself in relation to the GATT (as in the case of a measure which satisfies all the conditions of Article XX), but which, viewed in a given context, could give rise to a situation of nullification or impairment of a benefit under a tariff concession.
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