第四节 一般例外(1 / 1)

一、概述

WTO一般例外规则的目的,在于为成员方基于特殊事由而无法履行WTO协议提供一个合法的依据。考虑到WTO协议在性质上属于“一揽子接受”的范畴,为成员方提供一个一般例外规则,无疑可以使得WTO法律体系兼具完整性和灵活性,更能为世界范围内的广大国家所接受。

WTO的一般例外规则即GATT第20条。该条分为前言(preamble)和单项例外两个部分,其中前言主要规定各个单项例外措施在适用方式上的要求。[1]第20条的具体规定如下:

Article ⅩⅩ: General Exceptions

Subject to the requirement that such measures are not 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, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:

(a) necessary to protect public morals;

(b) necessary to protect human, animal or plant life or health;

(c) relating to the importations or exportations of gold or silver;

(d) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement, including those relating to customs enforcement, the enforcement of monopolies operated under paragraph 4 of Article Ⅱ and Article ⅩⅦ, the protection of patents, trade marks and copyrights, and the prevention of deceptive practices;

(e) relating to the products of prison labor;

(f) imposed for the protection of national treasures of artistic, historic or archaeological value;

(g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption;

(h) undertaken in pursuance of obligations under any intergovernmental commodity agreement which conforms to criteria submitted to the CONTRACTING PARTIES and not disapproved by them or which is itself so submitted and not so disapproved;

(i) involving restrictions on exports of domestic materials necessary to ensure essential quantities of such materials to a domestic processing industry during periods when the domestic price of such materials is held below the world price as part of a governmental stabilization plan; Provided that such restrictions shall not operate to increase the exports of or the protection afforded to such domestic industry, and shall not depart from the provisions of this Agreement relating to non-discrimination;

(j) essential to the acquisition or distribution of products in general or local short supply; Provided that any such measures shall be consistent with the principle that all contracting parties are entitled to an equitable share of the international supply of such products, and that any such measures, which are inconsistent with the other provisions of the Agreement shall be discontinued as soon as the conditions giving rise to them have ceased to exist. The CONTRACTING PARTIES shall review the need for this sub-paragraph not later than 30 June 1960.

尽管第20条规定了众多的单项例外措施,但纵观GATT/WTO的实践,成员方援用最多的还是(b)项、(d)项和(g)项的内容,因此本节仅对这三个条款进行讨论和说明。

二、公共健康例外条款——第20条(b)项的适用

第20条(b)项要求,成员方所采取的与WTO协议不一致的措施,只有在属于“为保护人类、动物或植物的生命所必需的措施”时,才能作为合法例外而无须承担违反WTO协议的责任。Panel在“美国精炼汽油和传统汽油标准案”(United States - Standards for Reformulated and Conventional Gasoline)中明确提出了判断成员方能否援引第20条(b)项的三个标准:As the party invoking an exception the United States bore the burden of proof in demonstrating that the inconsistent measures came within its scope. The Panel observed that the United States therefore had to establish the following elements:

(1) that thepolicy in respect of the measures for which the provision was invoked fell within the range of policies designed to protect human, animal or plant life or health;

(2) that the inconsistent measures for which the exception was being invoked werenecessary to fulfill the policy objective; and

(3) that the measures were applied in conformity with the requirements of the introductory clause of Article ⅩⅩ.

(一)何谓“保护人类生命与健康”

在WTO实践中,试图援引本项例外的成员方应该提出证据证明存在有关的健康风险。在认定有关产品是否构成了人类生命或健康风险时,Panel和Appellate Body一般都会听取专门性国际组织或非政府组织的意见。如在“泰国香烟进口限制和香烟国内税案”(Thailand-Restrictions on Importation of and Internal Taxes on Cigarettes)中,Panel就采纳了世界卫生组织(World Health Organization)关于“吸烟有害健康”的结论,裁定泰国的相关措施属于“保护人类生命与健康”的措施;在“欧共体影响石棉及石棉产品的措施案”(European Communities-Measures Affecting Asbestos and Asbestos-Containing Products)中,Panel和Appellate Body都听取了世界卫生组织和癌症国际研究机构的观点,认为石棉构成了对人类生命和健康的风险,并裁定欧共体的进口禁止措施符合“保护人类生命和健康”的目标。

(二)何谓“所必需的”

在GATT时期,“泰国香烟进口限制和香烟国内税案”的专家组认为,在不存在可合理地期望成员方采取的措施既能实现其健康政策目标,又与GATT基本义务相一致的替代措施,或不存在对GATT基本义务违反程度更低的措施时,成员方的措施才是“必需的”。在“欧共体影响石棉及石棉产品的措施案”中,上诉机构对“所必需的”进行了进一步的阐述:The Appellate Body confirmed that a measure is “necessary” within the meaning of GATT Article ⅩⅩ(b) “if an alternative measure which a Member could reasonably be expected to employ and which is not inconsistent with other GATT provisions is not available to it.” The Appellate Body in EC - Asbestos then considered Canada's claim that the Panel had erroneously found that “controlled use” was not a reasonably available alternative to the measure at issue. In this connection, Canada argued that the Appellate Body itself had held in US - Gasoline that an alternative measure can only be ruled out if it is shown to be impossible to implement. The Appellate Body rejected Canada's argument, but began its analysis by acknowledging that “administrative difficulties” did not render a measure not “reasonably available”. “We certainly agree with Canada that an alternative measure which is impossible to implement is not ‘reasonably available’. But we do not agree with Canada's reading of either the panel report or our report in United States - Gasoline. In United States - Gasoline, the panel held, in essence, that an alternative measure did not cease to be ‘reasonably’ available simply because the alternative measure involved administrative difficulties for a Member. The panel's findings on this point were not appealed, and, thus, we did not address this issue in that case.”[2]

紧接着,上诉机构援引其在“韩国影响鲜、冷冻牛肉进口措施案”(Korea-Measures Affecting Imports of Fresh,Chilled and Frozen Beef)中关于“所必需的”论述:In our Report in Korea - Beef, we addressed the issue of ‘necessity’ under Article ⅩⅩ(d) of the GATT 1994. In that appeal, we found that the panel was correct in following the standard set forth by the panel in United States - Section 337 of the Tariff Act of 1930:

It was clear to the Panel that a contracting party cannot justify a measure inconsistent with another GATT provision as ‘necessary’ in terms of Article ⅩⅩ(d) if an alternative measure which it could reasonably be expected to employ and which is not inconsistent with other GATT provisions is available to it. By the same token, in cases where a measure consistent with other GATT provisions is not reasonably available, a contracting party is bound to use, among the measures reasonably available to it, that which entails the least degree of inconsistency with other GATT provisions.

We indicated in Korea - Beef that one aspect of the ‘weighing and balancing process … comprehended in the determination of whether a WTO-consistent alternative measure’ is reasonably available is the extent to which the alternative measure ‘contributes to the realization of the end pursued’. In addition, we observed, in that case, that ‘the more vital or important the common interests or values’ pursued, the easier it would be to accept as ‘necessary’ measures designed to achieve those ends. In this case, the objective pursued by the measure is the preservation of human life and health through the elimination, or reduction, of the well-known, and life-threatening, health risks posed by asbestos fibers. The value pursued is both vital and important in the highest degree.[3]

由此可见,第20条(b)项中“所必需的”的含义需要根据该措施是否是“与WTO协议相一致或者有更少的不一致”这一标准来判断。而这一标准只是一个一般性的考虑,具体的判断还需要根据个案的情况来衡量。总的来说,旨在保护的“公共健康目标”越重要,措施越有助于实现所追求的目标,对进口产品产生的限制越低,就越容易被WTO争端解决机构接受为“所必需的”。[4]

三、遵守法律、法规的例外条款——第20条(d)项的适用

WTO上诉机构在2001年的“韩国影响鲜、冷冻牛肉进口措施案”中探讨了本项的适用问题。该案涉及韩国牛肉的双重零售制度是否给予进口牛肉不低于本国牛肉待遇的问题。这种双重零售制度规定,小商店不得同时经营进口牛肉和本地牛肉,大商店的同一部门不得同时经营这两种产品。在案件的审理过程中,韩国以第20条(d)项的规定作为抗辩,认为这种制度是为了遵循韩国国内的《消费者保护法》。对此,上诉机构认为:For a measure, otherwise inconsistent with GATT 1994, to be justified provisionally under paragraph (d) of Article ⅩⅩ, two elements must be shown. First, the measure must be one designed to ‘secure compliance’ with laws or regulations that are not themselves inconsistent with some provision of the GATT 1994. Second, the measure must be ‘necessary’ to secure such compliance. A Member who invokes Article ⅩⅩ(d) as a justification has the burden of demonstrating that these two requirements are met.[5]

在第20条(d)项中,同样可以见到“所必需的”这一措辞。这一措辞与(b)项中“所必需的”有何不同?在实践中应该如何把握?上诉机构同样也在本案进行了阐述:

We believe that, as used in the context of Article ⅩⅩ(d), the reach of the word ‘necessary’ is not limited to that which is ‘indispensable’ or ‘of absolute necessity’ or ‘inevitable’. Measures which are indispensable or of absolute necessity or inevitable to secure compliance certainly fulfil the requirements of Article ⅩⅩ(d). But other measures, too, may fall within the ambit of this exception. As used in Article ⅩⅩ(d), the term ‘necessary’ refers, in our view, to a range of degrees of necessity. At one end of this continuum lies ‘necessary’ understood as ‘indispensable’; at the other end, is ‘necessary’ taken to mean as ‘making a contribution to’. We consider that a ‘necessary’ measure is, in this continuum, located significantly closer to the pole of ‘indispensable’ than to the opposite pole of simply ‘making a contribution to’.

In appraising the ‘necessity’ of a measure in these terms, it is useful to bear in mind the context in which ‘necessary’ is found in Article ⅩⅩ(d). The measure at stake has to be ‘necessary to ensure compliance with laws and regulations … including those relating to customs enforcement, the enforcement of \[lawful\] monopolies … the protection of patents, trade marks and copyrights, and the prevention of deceptive practices’. (emphasis added) Clearly, Article ⅩⅩ(d) is susceptible of application in respect of a wide variety of ‘laws and regulations’ to be enforced. It seems to us that a treaty interpreter assessing a measure claimed to be necessary to secure compliance of a WTO-consistent law or regulation may, in appropriate cases, take into account the relative importance of the common interests or values that the law or regulation to be enforced is intended to protect. The more vital or important those common interests or values are, the easier it would be to accept as “necessary” a measure designed as an enforcement instrument.

In sum, determination of whether a measure, which is not ‘indispensable’, may nevertheless be ‘necessary’ within the contemplation of Article ⅩⅩ(d), involves in every case a process of weighing and balancing a series of factors which prominently include the contribution made by the compliance measure to the enforcement of the law or regulation at issue, the importance of the common interests or values protected by that law or regulation, and the accompanying impact of the law or regulation on imports or exports.[6]

四、环境保护的例外条款——第20条(g)项的适用

在实践中,WTO成员方经常援引本项规定作为不履行WTO协议的抗辩。由于本项例外的立法原意在于保护环境,因此也被形象地称为“环保例外”条款。若援引本条,需至少满足以下三个条件:第一,该措施是为了养护“可用尽的自然资源”;第二,措施与养护可用尽的自然资源“有关”;第三,措施与对国内的生产或消费一同实施。

(一)何谓“可枯竭的自然资源”

在“美国对虾和虾产品的进口限制案”(US-Import Prohibition of Certain Shrimp and Shrimp Products)中,上诉机构采取了变化的解释方法,认为虽然有生命的动物是可以再生的,然而严格地从字面上说不是可枯竭的自然资源,但从实际发生的情况看,由于人类活动和自然的变化,根据一些动植物的灭绝和濒危情况,上诉机构认为,海龟也应属于可枯竭的自然资源。且在金枪鱼案、鲑鱼案中某些鱼类也被确认为属于可枯竭的自然资源;换言之,可再生的动物可被纳入“可枯竭的自然资源”范畴中去。

Textually, Article ⅩⅩ(g) is not limited to the conservation of ‘mineral’ or ‘non-living’ natural resources. The complainants ‘principal argument is rooted in the notion that ’living’ natural resources are ‘renewable’ and therefore cannot be ‘exhaustible’ natural resources. We do not believe that ‘exhaustible’ natural resources and ‘renewable’ natural resources are mutually exclusive. One lesson that modern biological sciences teach us is that living species, though in principle, capable of reproduction and, in that sense, ‘renewable’, are in certain circumstances indeed susceptible of depletion, exhaustion and extinction, frequently because of human activities. Living resources are just as ‘finite’ as petroleum, iron ore and other non-living resources.

The words of Article ⅩⅩ(g), ‘exhaustible natural resources’, were actually crafted more than 50 years ago. They must be read by a treaty interpreter in the light of contemporary concerns of the community of nations about the protection and conservation of the environment. While Article ⅩⅩ was not modified in the Uruguay Round, the preamble attached to the WTO Agreement shows that the signatories to that Agreement were, in 1994, fully aware of the importance and legitimacy of environmental protection as a goal of national and international policy. The preamble of the WTO Agreement - which informs not only the GATT 1994, but also the other covered agreements - explicitly acknowledges the objective of sustainable development

From the perspective embodied in the preamble of the WTO Agreement, we note that the generic term ‘natural resources’ in Article ⅩⅩ(g) is not ‘static’ in its content or reference but is rather ‘by definition, evolutionary’. It is, therefore, pertinent to note that modern international conventions and declarations make frequent references to natural resources as embracing both living and non-living resources.

Given the recent acknowledgement by the international community of the importance of concerted bilateral or multilateral action to protect living natural resources, and recalling the explicit recognition by WTO Members of the objective of sustainable development in the preamble of the WTO Agreement, we believe it is too late in the day to suppose that Article ⅩⅩ(g) of the GATT 1994 may be read as referring only to the conservation of exhaustible mineral or other non-living natural resources. Moreover, two adopted GATT 1947 panel reports previously found fish to be an ‘exhaustible natural resource’ within the meaning of Article ⅩⅩ(g). We hold that, in line with the principle of effectiveness in treaty interpretation, measures to conserve exhaustible natural resources, whether living or non-living, may fall within Article ⅩⅩ(g).[7]

(二)何谓与养护可枯竭的自然资源“有关”

在“加拿大影响未加工鲱鱼和鲑鱼出口措施案”(Canada-Measures Affecting Exports of Unprocessed Herring and Salmon)中,专家小组得出结论,虽然某一贸易措施对保护可枯竭的自然资源不一定是必要或必需的,但要成为第20条(g)项意义上与保护“相关的”措施,该措施必须主要旨在保护可枯竭的自然资源。这一解释在“美国精炼汽油和传统汽油标准案”中再次得到肯定。而什么是“主要旨在”?一般而言,此时无须证明是否有不可替代措施的存在,而只须证明有关措施大体上合理地与保护特定环境事项的目标相联系即可,即应当证明有关措施在“总体结构和设计”上,与环保目标之间存在“实质性关系”,即“目的与手段之间的紧密而真实的关系”。以下是上诉机构在本案中的相关推理:

The baseline establishment rules, taken as a whole (that is, the provisions relating to establishment of baselines for domestic refiners, along with the provisions relating to baselines for blenders and importers of gasoline), need to be related to the ‘non-degradation’ requirements set out elsewhere in the Gasoline Rule. Those provisions can scarcely be understood if scrutinized strictly by themselves, totally divorced from other sections of the Gasoline Rule which certainly constitute part of the context of these provisions. The baseline establishment rules whether individual or statutory, were designed to permit scrutiny and monitoring of the level of compliance of refiners, importers and blenders with the ‘non-degradation’ requirements. Without baselines of some kind, such scrutiny would not be possible and the Gasoline Rule's objective of stabilizing and preventing further deterioration of the level of air pollution prevailing in 1990, would be substantially frustrated. The relationship between the baseline establishment rules and the ‘non-degradation’ requirements of the Gasoline Rule is not negated by the inconsistency, found by the Panel, of the baseline establishment rules with the terms of Article Ⅲ:4. We consider that, given that substantial relationship, the baseline establishment rules cannot be regarded as merely incidentally or inadvertently aimed at the conservation of clean air in the United States for the purposes of Article ⅩⅩ(g).[8]

(三)措施与国内的生产或消费一同实施

在“加拿大影响未加工鲱鱼和鲑鱼出口措施案”中,专家小组认为,只有某一贸易措施主要旨在使这些限制生效时,则该措施才可以视为与生产限制一起生效。在“美国精炼汽油和传统汽油标准案”中,上诉机构进行了进一步阐释,认为“如果该措施与对国内生产或消费的限制一起生效”应适当地理解为要求有关措施不但对进口汽油实施限制,而且对国内汽油实施限制。该款是要求在实施对枯竭性自然资源的生产或消费的限制上的公正。根据上述解释及分析,本条件的适用需证明,对可枯竭的自然资源的生产或消费实施限制时是不偏不倚的。以下是上诉机构的有关说明:

Viewed in this light, the ordinary or natural meaning of ‘made effective’ when used in connection with a measure - a governmental act or regulation -may be seen to refer to such measure being ‘operative’, as ‘in force’, or as having ‘come into effect.’ Similarly, the phrase ‘in conjunction with’ may be read quite plainly as ‘together with’ or ‘jointly with.’ Taken together, the second clause of Article ⅩⅩ(g) appears to us to refer to governmental measures like the baseline establishment rules being promulgated or brought into effect together with restrictions on domestic production or consumption of natural resources. Put in a slightly different manner, we believe that the clause ‘if such measures are made effective in conjunction with restrictions on domestic product or consumption1 is appropriately read as a requirement that the measures concerned impose restrictions, not just in respect of imported gasoline but also with respect to domestic gasoline. The clause is a requirement of even-handedness in the imposition of restrictions, in the name of conservation, upon the production or consumption of exhaustible natural resources.

The Appellate Body made clear that the “requirement of even-handedness” embodied in Article ⅩⅩ(g) did not amount to a requirement of “identity of treatment”:

There is, of course, no textual basis for requiring identical treatment of domestic and imported products. Indeed, where there is identity of treatment - constituting real, not merely formal, equality of treatment - it is difficult to see how inconsistency with Article Ⅲ:4 would have arisen in the first place. On the other hand, if no restrictions on domestically-produced like products are imposed at all, and all limitations are placed upon imported products alone, the measure cannot be accepted as primarily or even substantially designed for implementing conservationist goals. The measure would simply be naked discrimination for protecting locally-produced goods.

In the present appeal, the baseline establishment rules affect both domestic gasoline and imported gasoline, providing for - generally speaking - individual baselines for domestic refiners and blenders and statutory baselines for importers. Thus, restrictions on the consumption or depletion of clean air by regulating the domestic production of ‘dirty’ gasoline are established jointly with corresponding restrictions with respect to imported gasoline. That imported gasoline has been determined to have been accorded ‘less favourable treatment’ than the domestic gasoline in terms of Article Ⅲ:4, is not material for purposes of analysis under Article ⅩⅩ(g). It might also be noted that the second clause of Article ⅩⅩ(g) speaks disjunctively of domestic production or consumption.[9]

(四)第20条(g)项的域外适用问题

在“美国和墨西哥金枪鱼案Ⅰ”(United States-Restrictions on Imports of Tuna Ⅰ)中,专家小组认为,(g)项的措施只能是为了保护国内可枯竭自然资源,即保护措施不应该具有域外效力。但这一看法在“美国和墨西哥金枪鱼案Ⅱ”(United States-Restrictions on Imports of Tuna Ⅱ)中发生了变化,该案专家小组认为,在保护迁徙性鱼类时,认定成员方所采取的保护措施是否符合(g)项的要求,与捕获鱼类的行为发生在实施保护措施国境外或是境内并没有太大的关系。这种看法在“美国对虾和虾产品的进口限制案”中得到了上诉机构的进一步确认。由此可见,对于迁徙性的自然资源,WTO含蓄地承认成员方的保护措施具有域外效力。[10]

五、第20条前言的适用

为了防止WTO成员方滥用第20条所规定的各种例外措施,WTO第20条在一开始的前言部分规定了合法例外措施需要满足的附加条件。这种附加条件包括以下三个方面:第一,措施在情况相同的国家之间是否构成武断的歧视;第二,措施在情况相同的国家之间是否构成不正当的歧视;第三,措施是否构成对国际贸易的变相限制。

(一)歧视的判断标准

在“美国精炼汽油和传统汽油标准案”中,上诉机构明确提出,这里的“歧视”与GATT1994第3条(国民待遇)第4款(国内规章税费)中所提到的“歧视”具有不同的判断标准。

The enterprise of applying Article ⅩⅩ would clearly be an unprofitable one if it involved no more than applying the standard used in finding that the baseline establishment rules were inconsistent with Article Ⅲ:4. That would also be true if the finding were one of inconsistency with some other substantive rule of the General Agreement. The provisions of the chapeau cannot logically refer to the same standard(s) by which a violation of a substantive rule has been determined to have occurred. To proceed down that path would be both to empty the chapeau of its contents and to deprive the exceptions in paragraphs (a) to (j) of meaning. Such recourse would also confuse the question of whether inconsistency with a substantive rule existed, with the further and separate question arising under the chapeau of Article ⅩⅩ as to whether that inconsistency was nevertheless justified. One of the corollaries of the ‘general rule of interpretation’ in the Vienna Convention is that interpretation must give meaning and effect to all the terms of a treaty. An interpreter is not free to adopt a reading that would result in reducing whole clauses or paragraphs of a treaty to redundancy or inutility.

The chapeau, it will be seen, prohibits such application of a measure at issue (otherwise falling within the scope of Article ⅩⅩ(g)) as would constitute

(a) ‘arbitrary discrimination’ (between countries where the same conditions prevail);

(b)‘unjustifiable discrimination’ (with the same qualifier); or

(c) ‘disguised restriction’ on international trade.

The text of the chapeau is not without ambiguity, including one relating to the field of application of the standards its contains: the arbitrary or unjustifiable discrimination standards and the disguised restriction on international trade standard. It may be asked whether these standards do not have different fields of application.[11]

(二)何谓“任意或不正当的歧视”

这个问题在“美国对虾和虾产品的进口限制案”中有着充分地反映。该案基本案情如下:

1987年,美国根据1973年《濒危物种法》制定了法规,要求所有美国捕虾拖网船在可能与海龟相互影响的海域作业时,使用海龟过滤装置TED(Turtle Exclude Device)以免在捕虾的同时误伤海龟。随后,美国于1989年修正了《濒危物种法》,增加了第609节,将TED的使用扩大化,授权美国国务院制定具体措施,禁止所有未使用TED装置和未达到美国国家保护海龟标准的国家和地区所捕捞的虾和虾产品进入美国市场。到了1996年4月19日,美国国务院公布的1996年度实施细则已经将第609节的适用范围扩大到境外的所有国家。这种捕捞要求引起了很多国家的不满,其中印度、马来西亚、巴基斯坦和泰国向WTO争端解决机构提出了投诉。

在本案的裁决中,上诉机构认为,首先,美国所采取的进口禁止措施属于武断的歧视,因为虾和虾产品的出口国为了获得美国的进口资格需要遵循一定的许可程序,而这种许可程序并不是透明的,是否能够获得许可非常难以预测;其次,美国所采取的措施属于不正当的歧视,因为美国没有给予出口国机会去解释为什么没有达到美国所制定的海龟保护标准,也没有给予出口国机会去解释其捕捞方式不会对海龟造成伤害。因此,上诉机构最终裁定美国的措施不能够援引GATT1994第20条证明其合法性。