1 In this comment, I sidestep the important if, by this point, tiresome debate about the role of ideology and personal proclivity in a rules-and-principles-based jurisprudence. Here we are addressing a jurisprudence that prides itself on its principled hermeneutics but that Bown and Trachtman largely persuasively show to be ‘incoherent.’
2 I find the Least Treaty Inconsistency test (LTIARA) unhelpful analytically – it typically begs the question and requires some LTRARA in order to work.
3 I use GATT advisedly. SPS and TBT may differ from traditional GATT disciplines precisely on this point.
4 The issue of ‘consistency’ with other measures, e.g., as referenced in SPS, is an instrument whereby this assumption may be ‘gently’ challenged.
5 Sometimes the balancing may be reviewed as a proxy for a good-faith test. See infra.
6 Japan – Measures Affecting the Importation of Apples, WT/DS245/AB/R 26 November 2003.
7 When the Appellate Body, upon rejecting the dual retail system, says, in Recital 178: ‘Therefore, the question remains whether other, conventional and WTO-consistent instruments can not reasonably be expected to be employed to achieve the same result’ (emphasis added) it is clear that what is proposed would not achieve the same result. Achieving the same result by other enforcement mechanisms will entail a far heavier administrative and financial burden; in effect, the burden of the case, which derives from Recitals 162 and 163, is that preventing fraud at the level achieved by the dual retail system entails, as a matter of balancing, too high a cost on imports when compared to the value in question.
8 Of course, reviewing the mechanisms for enforcing a policy is tantamount to reviewing the actual level of acceptable risk. It is an empty gesture to say that a Member is free to set its own level of acceptable risk but not free to adopt the enforcement mechanisms necessary to ensure that the chosen level of risk is respected. The balancing language used by the Appellate Body in other cases indicates that the vital interest doctrine in Korea–Beef is not restricted to Article XX(d) situations.
9 Cf. J. H. H. Weiler, ‘The Constitution of the Common Market Place: Text and Context in the Evolution of the Free Movement of Goods’, in The Evolution of EU Law (Paul Craig and Grainne de Búrca eds., Oxford/New York: Oxford University Press 1999).
10 I say quasi-essentialist because they will allow that perhaps it is the text of Article XX which constrains the judicial bodies from following their Archimedean point. In principle, they are right, though it is hard to see how the open-textured language of Article XX could be construed as a constraint in this case.