The other day, I did a short post on a possible U.S. ban on imports of nuclear waste (the importation would be for processing and disposal here in the U.S.). I didn't say anything about the legal issues, because I thought the conclusion was clear -- the ban would be justified under GATT Article XX. However, somebody emailed me with a suggestion that perhaps things were more complicated, so I'll put it out here (briefly) for the audience to comment on.
First off, it's pretty obvious there is a violation here. It's an import ban, which violates GATT Article XI:1. So let's move to GATT Article XX.
Article XX(b) is the obvious place to start. XX(b) covers measures "necessary to protect human, animal or plant life or health." The reason I thought this part would be satisfied is that however you handle the waste, there is a pretty good chance that "human, animal or plant" health will be affected to some degree. So, if your goal is to eliminate the health risk from the foreign waste, you have to keep it out. Any alternative measure will leave some health risk.
Article XX(g) might also work, but I'm a little less sure about this one. This provision covers measures "relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption." How does the measure relate to conserving exhaustible natural resources? Perhaps because the waste affects other resources. Is it made effective in conjunction with restrictions on domestic production or consumption? Well, there are many restrictions, although there is also plenty of domestic waste being generated.
Overall, XX(b) seems like the stronger of the two defenses.
Turning to the chapeau, this refers to "arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade." Arguably, there's both discrimination and a restriction under the measure. However, I'm not sure the discrimination is "arbitrary or unjustifiable" or that the restriction is "disguised." Instead, what you have here is a pretty good reason for the discrimination and the restriction, which is that we don't want any more of the waste than we already have.
Any thoughts?