An idea of an inverse exception in times of Covid

A thoughtful piece in the Opinio Juris by Mona Pinchis on "Inverse Exceptions" in WTO law. Exceptions in WTO law refer to provisions that permit WTO Members to deviate from WTO provisions under certain circumstances. Article XX of the GATT 1947 provides for general exceptions where Members can adopt measures necessary to protect public morals, human health amongst others. Article XXI provides for a security exception wherein, inter alia, Members are not prevented from taking any action which it considers necessary for the protection of its essential security interests.

Reports suggests that many members have undertaken measures that have constricted free trade during the Covid pandemic. Many of these measures may find their justification under Article XX of the GATT.

However, Mona Pinchis draws us to a counter-factual. Should times of medical emergencies prompt an "inverse-exception" rule. This would mean Members would agree tono restrictions in the trade of medical equipments, medicines and other commodities related to the emergency. A provision mandating members to keep their markets as well as measures non-restrictive during this time?

The idea of an inverse of the GATT exceptions (‘Inverse-Exceptions’) acknowledges the global nature of COVID-19. There are not multiple crises occurring right now. There is one. To avoid international trade slowing to a standstill due to a rapid rise in trade barriers, invocation of Inverse-Exceptions would still come from a single WTO Member. However, it would require all Members to acknowledge that there is a need for immediate trade liberalization due to an overwhelming global concern. That is, it is not just a national security or health concern: it is a concern of humanity.

Pandemics throw up challenging questions for countries battling them in terms of administrative and governance questions. Governments are answerable to their population in terms of how they cope with the disaster and what best they can do in times of crisis. The inverse-exception would need to pass the test of governments being able to convince their constituencies that it is in their interest that trade is free. This may or may not be akin to selling the idea of free trade in times of a depression. However, the ultimate test is whether national governments would be able to pass that test.