综上所述,根据WTO专家组和上诉机构的解释,第20条在实践中的适用应该分两步走:第一步确定具体措施是否符合本条(a)到(j)项的要求,如果符合,则进行第二个步骤——确定具体措施是否符合第20条前言的附加条件。由此可见,成员方想要通过援引第20条来免除所采取的措施与WTO协议不符的责任是十分困难的,这一点在WTO争端解决机制实践中也有着充分地反映。
Case Study
UNITED STATES - IMPORT PROHIBITION OF CERTAIN
SHRIMP AND SHRIMP PRODUCTS
WT/DS58/AB/R
The basic facts of the case have been introduced in the pretext. Here are the selected awards of the Appellate Body:
150.We commence the second tier of our analysis with an examination of the ordinary meaning of the words of the chapeau. The precise language of the chapeau requires that a measure not be applied in a manner which would constitute a means of “arbitrary or unjustifiable discrimination between countries where the same conditions prevail” or a “disguised restriction on international trade.” There are three standards contained in the chapeau: first, arbitrary discrimination between countries where the same conditions prevail; second, unjustifiable discrimination between countries where the same conditions prevail; and third, a disguised restriction on international trade. In order for a measure to be applied in a manner which would constitute “arbitrary or unjustifiable discrimination between countries where the same conditions prevail”, three elements must exist. First, the application of the measure must result in discrimination. As we stated in United States - Gasoline, the nature and quality of this discrimination is different from the discrimination in the treatment of products which was already found to be inconsistent with one of the substantive obligations of the GATT 1994, such as Articles Ⅰ, Ⅲ or Ⅺ. Second, the discrimination must be arbitrary or unjustifiable in character. We will examine this element of arbitrariness or unjustifiability in detail below. Third, this discrimination must occur between countries where the same conditions prevail. In United States - Gasoline, we accepted the assumption of the participants in that appeal that such discrimination could occur not only between different exporting Members, but also between exporting Members and the importing Member concerned. Thus, the standards embodied in the language of the chapeau are not only different from the requirements of Article ⅩⅩ(g); they are also different from the standard used in determining that Section 609 is violative of the substantive rules of Article Ⅺ:1 of the GATT 1994.