The Substantially all the Trade-Requirement of GATT Article XXIV. A Lawyers View
Abstract: The GATT/WTO has not been covered in any of the compulsory subjects in the law programme, and there are no electives on the subject. This is something that should be made clear already at the outset, because it puts the thesis in the right perspective. Like all other law students, I knew nothing about the subject when I started to work on the thesis, and even now, my expertise only dates back a few months. The problem is compounded by the sheer complexity of the subject matter. Someone said about the Australian Native Title Act 1976 (Cth) that reading it was like ''reading porridge'', but having read both the Native Title Act and the GATT I can honestly say that the former is like a comic magazine compared to the latter. Under these circumstances, it is difficult not to write a predominantly descriptive thesis. Nevertheless, there is a fair bit of independent analysis, both in the mainly descriptive Chapters 1-4 and in Chapters 5 and 6. A thesis, normally, should have a specific and limited purpose. Furthermore, this purpose should be pursued by consequently employing a certain method suitable to the task at hand. The present thesis does not purport to do that other than to a certain extent. The main ''deviation'' from this formula lies in the many descriptive parts of the thesis, which were necessary in order for myself to get acquainted with the subject. Besides, since we were told to write with other students in mind, these parts are probably necessary for the reader, too, assuming that the reader has as little background knowledge of the GATT as I did when I started writing the thesis. Thus, it would be a fairly pointless exercise to investigate the meaning of the words ''substantially all the trade'' in GATT Article XXIV without supplying any background information on what the GATT is in the first place. In fact, in previous theses I have been accused of providing too little background information, leaving it to the reader to find out the necessary information. This time, I wanted to do it right. Chapter 4 sticks out from the rest. Arguably, it could be left out altogether. On the other hand, when it says in Chapter 3 that the EC and its member states are all parties to the WTO, this raises the question of how that can be. A footnote that merely says that the WTO Agreement is a so-called ''mixed agreement'' under internal EC law probably does not clarify things, and only raises more questions. Probably, it is wise to include a Chapter that methodically explains how the external powers of the EC and its members states work. As I said, I do not want to include too little background information. Not again. The purpose of the thesis is to look into the question of whether Article XXIV:8 is justiciable. This is clear already from the cover, and an answer to that question is arrived at, using legal methods. However, with all the descriptive bits in thesis, it could perhaps be argued that its title does not adequately reflect its contents. Against this can be said that the background information is not there for its own sake, but rather serves to put the purpose of the thesis in the right perspective. Besides, I like the title. It looks good. Enough said. Enjoy!
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