ARTICLE XXI: THE GATT SECURITY EXCEPTION

To witness vague, unconstrained exceptions to binding commitments, one need not look all the way back to medieval law, or nineteenth century Bismarckian power struggles. Since the early days of the trade regime, the GATT has featured a set of exceptions of disconcerting breadth. One of these, GATT Article XXI, may be the broadest, least constrained formal exception in the trade regime: so “broad, self-judging, and ambiguous that it obviously can be abused” (Jackson, 1997a, 230).

I outline policymakers’ full menu of flexibility options in the regime in the next chapter, yet it is worth first considering the design of and reliance on Article XXI, and comparing it to its non-security analogue provision, Article XX, the General Exceptions. Indeed, the “catch-all” flexibility provision in Article XXI makes for an ideal case study of how member states treat unchecked exceptionality. The puzzle is a familiar one by now: how can the trade regime tolerate the continued existence of a flexibility provision that is prima facie costless, and the use of which is effectively unchecked? Why has the existence of Article XXI not led to the system's downfall, given the lack of constraints put on its use?

The relevant section of GATT Article XXI, which was part of the original 1947 text but applies to the WTO agreements to this day, reads:

In the following examination of Article XXI, I put forward three main points.