Skip to main content Accessibility help
×
×
Home

The Security Exception In WTO Law: Entering a New Era

  • Tania Voon (a1)
Extract

For seventy years, the security exception in the multilateral trade regime has mostly lain dormant. The exception first appeared in the General Agreement on Tariffs and Trade 1947 (GATT 1947), before being incorporated in the General Agreement on Tariffs and Trade 1994 (GATT 1994) upon the creation of the World Trade Organization (WTO). However, security exceptions also exist in several other WTO provisions, including the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the General Agreement on Trade in Services (GATS). Until recently, perhaps through a combination of WTO member restraint and fortuitous circumstances, WTO panels have not had to make a definitive ruling on the meaning and scope of these exceptions. Yet, suddenly, the security exception lies at the center of multiple explosive disputes, posing a potential threat to the WTO's very existence.

  • View HTML
    • Send article to Kindle

      To send this article to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle.

      Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

      Find out more about the Kindle Personal Document Service.

      The Security Exception In WTO Law: Entering a New Era
      Available formats
      ×
      Send article to Dropbox

      To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Dropbox.

      The Security Exception In WTO Law: Entering a New Era
      Available formats
      ×
      Send article to Google Drive

      To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Google Drive.

      The Security Exception In WTO Law: Entering a New Era
      Available formats
      ×
Copyright
This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
Hide All

1 Negotiating Group on GATT Articles, Article XXI: Note by the Secretariat para. 14, GATT Doc. MTN.GNG/NG7/W/16 (Aug. 18, 1987).

2 General Agreement on Tariffs and Trade [GATT 1947], Minutes of Meeting Held in the Palais des Nations, Geneva, on 31 October 1975, GATT Doc. C/M/109, 9 (Nov. 10, 1975) [hereinafter Palais Minutes].

3 GATT 1947, Sweden—Import Restrictions on Certain Footwear, para. 4, GATT Doc. L/4250 (Nov. 17, 1975).

4 Id.

5 Palais Minutes, supra note 2, at 9.

6 GATT 1947, Sweden—Import Restrictions on Certain Footwear: Addendum, GATT Doc. L/4250/Add.1 (Mar. 15, 1977).

7 Request for the Establishment of a Panel by Ukraine, Russia—Measures Concerning Traffic in Transit, WTO Doc. WT/DS512/3 (Feb. 10, 2017).

8 Australia's Third Party Executive Summary, Russia—Measures Concerning Traffic in Transit, para. 13, WT/DS512 (Feb. 27, 2018) [hereinafter Australia Summary].

9 Request for the Establishment of a Panel by Qatar, United Arab Emirates—Measures Relating to Trade in Goods and Services, and Trade-Related Aspects of Intellectual Property Rights, para. 1, WT/DS526/2 (Oct. 12, 2017).

11 See, e.g., Request for the Establishment of a Panel by the United States, Canada—Additional Duties on Certain Products from the United States, WT/DS557/2 (Oct. 19, 2018); Request for the Establishment of a Panel by Norway, United States—Certain Measures on Steel and Aluminium Products, WT/DS552/10 (Oct. 19, 2018).

12 See GATT Council, Decision Concerning Article XXI of the General Agreement, GATT Doc. L/5426 (Dec. 2, 1982).

13 Roger Alford, The Self-Judging WTO Security Exception, 3 Utah L. Rev. 697, 758 (2011).

14 Third Party Executive Summary of the United States of America, Russia—Measures Concerning Traffic in Transit, paras. 7–8, 18, WT/DS512 (Feb. 27, 2018).

15 See, e.g., Communication from the United States, United States—Certain Measures on Steel and Aluminium Products, WT/DS548/13 (July 6, 2018).

17 GATT 1947, Summary Record of the Twenty-Second Meeting, GATT Doc. CP.3/SR.22, 4 (June 8, 1949).

18 Understanding on Rules and Procedures Governing the Settlement of Disputes art. 11, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, Apr. 15, 1994, 33 ILM 1125 [hereinafter DSU]. See also id., art 7.

19 DSB Minutes, supra note 10, at paras. 4.4–4.7.

20 See, e.g., Australia Summary, supra note 8, at paras. 8–9. See also WTO, Minutes of Meeting—Held in the Centre William Rappard—on 20 February 2017, para. 7.3, WT/DSB/M/392 (Apr. 5, 2017).

21 European Union: Third Party Written Submission, Russia—Measures Concerning Traffic in Transit, paras. 24, 38, WT/DS512 (Nov. 8, 2017) [hereinafter EU Submission].

22 Id. at paras. 39, 62–63.

23 Id. at paras. 34, 60–61.

24 See, e.g., U.S. Statements, supra note 18, at 43.

25 See, e.g., Nicolas Lamp, Why WTO Members Should Bring Pure Non-Violation Claims Against National Security Measures, Int'l Econ. L. & Pol'y Blog (Oct. 15, 2018).

26 General Agreement on Tariffs and Trade 1994 art. XXIII:1(b), Apr. 15, 1994, 1867 UNTS 187.

27 India, Mexico, Switzerland, and Turkey.

28 DSU, supra note 20, art. 26.1(b).

29 But see, e.g., Panel Report, United States—Trade Measures Affecting Nicaragua, para. 4.9, GATT Doc. L/6053 (Oct. 13, 1986); Appellate Body Report, European Communities—Measures Affecting Asbestos and Asbestos-Containing Products, para. 188, WT/DS135/AB/R (Adopted Apr. 5, 2001) [hereinafter EC Asbestos].

30 See, e.g., EC Asbestos, supra note 31, para. 186; Graham Cook, The Legalization of the Non-Violation Concept in the GATT/WTO System (Oct. 24, 2018); Marrakesh Agreement Establishing the World Trade Organization arts IX(2), X, Apr. 15, 1994, 1867 UNTS 154.

31 Marrakesh Agreement Establishing the World Trade Organization arts IX:2, X, Apr. 15, 1994, 1867 UNTS 154.

32 DSU, supra note 20, art. 3.2; Vienna Convention on the Law of Treaties arts. 31–32, May 23, 1969, 1155 UNTS 331.

33 See EU Submission, supra note 23, para. 62; Stephan Schill & Robyn Briese, “If the State Considers”: Self-Judging Clauses in International Dispute Settlement, 13 Max Planck Y.B. U.N. L. 61 (2009). See also Australia Summary, supra note 9, paras. 29, 37.

Recommend this journal

Email your librarian or administrator to recommend adding this journal to your organisation's collection.

AJIL Unbound
  • ISSN: -
  • EISSN: 2398-7723
  • URL: /core/journals/american-journal-of-international-law
Please enter your name
Please enter a valid email address
Who would you like to send this to? *
×

Metrics

Altmetric attention score

Full text views

Total number of HTML views: 0
Total number of PDF views: 0 *
Loading metrics...

Abstract views

Total abstract views: 0 *
Loading metrics...

* Views captured on Cambridge Core between <date>. This data will be updated every 24 hours.

Usage data cannot currently be displayed