International Commercial Law
1. The reason given by Thailand for restricting imports of cigarettes.
According to the materials of the case, Thailand justified the imposed import restrictions on cigarettes and other tobacco preparations under Article XX (b) of the GATT as chemicals and other additives contained in the cigarettes imported from the United States might make the cigarettes more harmful than Thai cigarettes (US vs. Thailand 1990). According to Article XX (b) of the GATT, a member state may derogate from the provisions of the Agreement for the necessity ‘to protect human, animal or plant life or health’ (GATT 1947, Article XX (b)).
2. GATT’s conditions giving priority to human health over trade liberalization.
In the case, the panel stated that the priority to human health over trade liberalization may be given only if the imposed measures are necessary within the meaning of Article XX (b) of the GATT (‘Thailand-restrictions on importation of and internal taxes on cigarettes’ 1990). Additionally, Article XX of the GATT specifies that any contracting party may take exceptive measures only if it is not going to constitute an instrument of arbitrary or unjustifiable discrimination between countries or a latent restriction on international trade (GATT 1947, Article XX).
3. The use of ‘least restrictive trade’ doctrine in the context of the case.
In the context of the case, the doctrine of least restrictive trade is used as the statement of the panel that any restrictive measure under Article XX may be imposed only if it is necessary. Thus, the panel associates the doctrine of least restrictive trade with the principle of necessity. In other words, the least restrictive trade doctrine implies that the restrictions of the WTO member will be valid only if the member makes them no more oppressive than necessary to achieve the objectives for which they are imposed. Otherwise, the restrictive measures may be deemed a trade barrier in disguise.