A Study Of The “Necessity” Standard Under The GATT XX(b)

The conflict between the environment and trade is mainly reflected in related trade disputes,In the WTO system,environmental protection is considered in GATT XX clause(b)and(g).In practice,there are many controversies about the “necessity” requirements in the clause(b).For example,which factors that need to be weighted and balanced of the “necessity” standard? And,which treaty interpretation rules can be used in the “necessity” standard? The definition,content,standard variation,and defects of the development of “necessity” are summarized in this paper through analysis the typical cases in which disputes were resolved by GATT and WTO dispute settlement agencies.The study of the “necessity” test depends on the interpretation to treaties.Therefore,this paper makes a brief introduction to the treaty interpretation rules of WTO agreement.Finally,taking "rare earth" case as an example,explore the relevant factors that should be weight and balanced when citing the clause of GATT XX(b),this paper also come up with some suggestions to invoke the clause of GATT XX(b)in our country.Except the introduction and epilogue,this paper has four parts:Part I is “the ‘necessity' standard test in GATT period”.This part summarizes reports of the panel of the “Thailand cigarette” case and “Restrictions On Imports Of Tuna” case during the GATT period,and the examination elements of the “necessity” standard test review were mainly "discriminated least against imported goods" and "foreseeability."Part II is “the ‘necessity' standard test of reviewing tread measures in WTO period,development and deficiencies comparing to GATT period”.In this part,after reviewing the penal and appellant body's report on “United States Standards for Gasoline” case,“European Asbestos-Containing Products” case and “Brazil Retreaded Tyres” case,the necessity test of WTO period includes “relevance between the measures,the policy goals”,“the non-existence of a reasonably available alternative”,“substantial contribution ”and “qualitative terms of the contribution”.Compared with the GATT period,the contents of the criteria of necessity standard test were more in-depth and comprehensive,but there was a defect that the relevant factors had vague meanings and could be easily abused.Part III is "method of interpretation of the term ‘necessity' under the rules of treaty interpretation".This section explain the word "necessity" according to the rules of treaty interpretation,referring to article 31,32 of the Vienna convention on the law of treaties,forming an interpretation system based on the ordinary meaning to be given to the terms of the treaty in their context,and also take the context for the purpose of the interpretation of a treaty interpretation of context,purpose and objectives as well as subsequent interpretation,the principle of interpretation in good faith,which also using the background information of contracting as supplementary means.Part IV is “review of necessity test on ‘rare earth' case and enlightenment”.In this part,from the perspective of judicial practice,taking China's "rare earth" case as an example,when invoking clause(b)for defense,the factors can be specified as "value importance","substantial contribution","trade restriction" and "relative trade freedom".Meanwhile,China should correctly apply burden of proof when faced with similar cases,and gradually improve the relevant contents of article 16 of Foreign Trade Law of the People's Republic of China.