Critical Analysis of GATT Article XX(J)

Asad Daniyal Akhtar; Anjali Kumari

Critical Analysis of GATT Article XX(J)

Author(s)	Mr. Asad Daniyal Akhtar, Ms. Anjali Kumari
Country	India
Abstract	This paper critically examines the Appellate Body’s interpretation of GATT Article XX(j), arguing that its adoption of a “global availability” standard for determining “short supply” has rendered the provision functionally inoperative. Through a rigorous application of Articles 31 and 32 of the Vienna Convention on the Law of Treaties, supported by the travaux préparatoires of the Havana Charter, the paper demonstrates that XX(j) was historically designed to address domestic or access-based scarcity rather than worldwide production shortages. It identifies a consistent doctrinal flaw in both India-Solar Cells and the EU-Energy Package, where adjudicatory bodies conflated global availability with actual accessibility. To resolve this, the paper introduces a novel typology distinguishing between production-constrained and access-constrained scarcity, situating the 2026 Strait of Hormuz crisis as a paradigmatic case of the latter. The proposed reinterpretation restores coherence to XX(j) by aligning it with its text, purpose, and historical context, while preserving safeguards against protectionist abuse through the chapeau and necessity requirements. Ultimately, the paper argues for a doctrinal recalibration that enables XX(j) to function as an effective legal tool in contemporary energy security crises.
Keywords	GATT Article XX(j), WTO Law, Energy Security, Treaty Interpretation, Access-Constrained Scarcity, International Trade Law, Strait of Hormuz Crisis
Published In	Volume 8, Issue 3, May-June 2026
Published On	2026-06-18

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Critical Analysis of GATT Article XX(J)

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