II - Legal analysis: reviewing the status of NPA measures de lege lata

Summary

This part explores the legal key issues identified in Part I based on the WTO Agreements as they stand. Before entering the narrow field of WTO law, Chapter 3 discusses the applicability of WTO law and other international law to NPA measures. Since NPA measures will often relate to non-trade public policies covered by international agreements, conflicts of norms are inevitable. Under certain circumstances, it is conceivable that other international agreements will prevail over the WTO Agreements – in this case, the legal status of NPA measures under WTO law would be irrelevant. Usually, however, the WTO Agreements, and most importantly the GATT, will determine the legal relations among WTO members.

Chapter 4 begins with the analysis under WTO law. Consistency of national measures with GATT obligations is examined in two steps. The first step in the examination regards a possible violation of GATT obligations and asks whether a measure falls into the scope of the obligation. If so, the question whether or not the measure violates the obligation stated in the provision is addressed. Measures not falling into the scope of obligations cannot possibly violate the agreement. The second step follows only in cases where the measure was found cumulatively to fall into the scope of an obligation and to violate it. It examines whether the measure is justified by any one of the exemptions contained in the GATT, most importantly in Article XX. Accordingly, Chapter 4 analyses the inconsistency of NPA measures with obligations stated in the GATT.