The Legalization of the Non-Violation Concept in the GATT/WTO System

Abstract

Article XXVIII:1(b) of the GATT refers to “any benefit … being nullified or impaired” by the application of any measure “whether or not it conflicts with the provisions of this Agreement”. This article suggests that the evolution of GATT/WTO law and practice relating to the non-violation concept is an interesting example of “legalization”, in the sense of indeterminately vague treaty terms being incrementally made more precise and sculpted into a workable legal test which is capable of being applied in the context of binding third-party adjudication. It begins by showing how GATT adjudicators transformed this indeterminately open-ended concept into a workable legal test, generally covering measures with a close nexus (in terms of timing, product coverage, and effects) to specific market access commitments (Section I). It then briefly reviews how the non-violation concept spread to regional trade agreements, taking the CUSFTA and NAFTA as examples. (Section II). Following a closer look at the key non-violation provisions in the text of the Uruguay Round Agreements (including the DSU, GATS, SCM Agreement, and TRIPS Agreement), it surveys the relevant WTO case law and shows that adjudicators have not strayed very far from the traditional legal standard developed under the GATT (Section III). It suggests that the traditional legal test aligns the non-violation concept to various concepts of general international law, and to GATT safeguards provisions and the close nexus test developed in the context of WTO compliance proceedings (Section IV). It concludes with an overall assessment (Section V).