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The World Trade Organization (WTO) is recognised as a remarkable achievement by the international community to regulate global trade in an effective and non-discriminatory manner (Van Den Bossche, 2008, pp. 3-8) The WTO is a regulatory entity predicated on multilateral agreements (Ala’I, 1999) and consensus-based decision-making (Jackson, 1998) between its members. To remain a democratic and fair system (Moore, 2013), the WTO attempts to avoid unilateralism by ensuring members engage in multilateral negotiations rather than participating in unilateral action that is economically inefficient and unfair (Bree, 1999; Dagne, 2007). Unilateralism, within the context of international trade, is commonly associated with protectionism, which distorts the markets by erecting barriers; this transforms a free market into a controlled market.
Unilateral action is strongly discouraged and disapproved of within the WTO (Hudec, 1999). The frequent unilateralism by the USA, which was part of the impetus and motivation that inspired the creation of a new dispute resolution system within the WTO, demonstrates this[1] (Hudec, 1999). However, multilateral agreements are far from perfect (Lester et al., 2008, p. 363). Multinational agreements can be notoriously difficult establish, with the many unsuccessful rounds of trade negotiations acting as testament to this (Lester et al., 2008, pp. 59-60); nevertheless, they are recognised as a fair and open system. Therefore, it has long since been accepted that members of the WTO must be allowed to deviate from their obligations under WTO law, and engage in unilateral action, to achieve certain legitimate and appropriate policy aims (Mitchell and Ayres, 2012), such as protection of the environment (Neumayer, 2004), health (Mercurio, 2012) or morals (Charnovitz, 2003).
The ability to engage in policy objectives outside of increasing trade is a sovereign prerogative of any member of the WTO (Lester et al., 2008, pp. 363-364). Therefore, GATT Article XX allows members to depart and deviate from their obligations under multilateral agreements and embark on unilateral action, pursuant to the scope of the Article[2]. This legal tool and concept is imperative, as it permits WTO members to have some level of autonomy over the value it assigns the aforementioned issues, such as health and morals, which, in turn, allows WTO members to situate agreed rules within the context of their prioritised beliefs and aims. Without such...