Analysing the ‘Self Judging’ Nature of Article XXI of the GATT

I. Introduction

The parties to the General Agreement on Tariffs and Trade (hereafter the GATT or ‘the agreement’) realised that a provision in the agreement is necessary, which would discharge them from the statutory obligations under the agreement when a measure is taken in furtherance of ‘National Security’. The National security exception is included under article XXI of the GATT, and it is the ‘most powerful exception to the general obligations undertaken by WTO members². The provision pertaining to the security exception can also be seen in the other agreements under the WTO, for instance, the General Agreement on Trade in Services (GATS) and the Trade related aspect of Intellectual Property rights (TRIPS)³. The state practice of the past suggests that the states have neither invoked this exception very frequently as a defence nor the members have challenged these actions⁴ very often. Some legal scholars are of the view that the provision through its wordings gives power to the state to unilaterally invoke this exception and avoid the obligations⁵. The questions that can be raised here are: whether the restrain as evident in the past ‘state practice’ is enough to ensure that this restrain is being practised now? And will also be observed in the future? And whether the text of Article XXI prohibits the review of such invocation? Recent disputes have arisen in which the states invoking national security exceptions have been accused of abuse.

The primary concern is whether these exceptions are ‘self-judging’? ‘WTO panels have yet to make a definitive ruling on the meaning and scope of these exceptions.’⁶ With the current lacunae in the jurisprudence pertaining to this provision and with the recent inactions by the United States, it is very crucial for the global trade community to determine the scope of this provision, as it might lead to misuse and threaten the existence and legitimacy of the WTO.

This article aims to analyse the provision under GATT dealing with National Security. In Part A, the article provides an analysis of the language of article XXI of the GATT. Part B focuses on the opinions of legal scholars, the state practice and the scarce GATT/WTO jurisprudence to determine the ‘self-judging’ aspect of the provision. The last part, C, aims to analyse whether the article should or should not be self-judging.

II. Part a

Due to the lack of GATT-WTO jurisprudence relating to Article XXI, we don’t have a conclusive interpretation of the provision. However, the state practice and the suggestions made by scholars over the years might help in determining the ‘self-judging’ feature of the article. Article XXI of GATT states,

“Nothing in this Agreement shall be construed (a) To require any contracting party to furnish any information the disclosure of which it considers contrary to its essential security interests; or

(b) To prevent any contracting party from taking any action, which it considers necessary for the protection of its essential security, interests

(i) Relating to fissionable materials or the materials from which they are derived;

(ii) Relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment;

(iii) Taken in time of war or another emergency in international relations; or

(c) To prevent any contracting party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.”⁷

The security exceptions, as enumerated in the article above, can be divided into five types: (1) Disclosure of information pertaining to National Security⁸, (2) Nuclear Materials⁹, (3) Goods and Services relating to the military¹⁰, (4) War and International Emergencies¹¹ and (5) Obligations under the charter of the United Nations^12,13. ‘The inclusion of article XXI within the General Agreement certainly reflects the fact that all States have the right to protect their sovereignty from external threat.’¹⁴ Additionally, the provision enables a state to evade the GATT obligations such as ‘the Most Favoured Nation (MFN), National Treatment, Tariff Bindings and Quantitative Restrictions’¹⁵ if there is a threat to its security.

The opening line of the provision includes the word ‘Nothing’, which connotes that it is ‘an all-embracing exception to the GATT obligations’¹⁶. Article XXI, as discussed by Professor Raj Bhala¹⁷, has controversial and non-controversial provisions, and this paper concurs with this contention. If we assess the article, it certainly seems that clauses (a), b (i) and (c) are not vague and hence not controversial.

Clause (a) provides that a contracting party is under no obligation to provide any information, which it considers, will affect its security interests. Additionally, this provision also empowers the concerned state to determine what constitutes ‘an information contrary to security interests’. No sovereign country should be expected to disclose information that might compromise its national security. The question concerning the disclosure of information under Article XXI was discussed in 1982, where it was concluded that ‘Subject to clause (a), the contracting parties should be informed to the fullest extent possible of trade measures taken under Article XXI’¹⁸. Hence this provision depends upon the state’s ability and will to furnish information and has limited scope for controversy since the parties have indirectly agreed upon this¹⁹.

Clause b (i) of Article XXI, if read without the introductory part of XXI (b), talks about protecting national security with respect to nuclear materials. It would be irrational to expect any state to carry on trade obligations when there is a nuclear threat. Thus, this provision doesn’t seem to be controversial as it defines a specific situation when a state can invoke this.

Clause (c) provides primacy to the obligations under the United Nations for the maintenance of international peace and security than to those under the GATT. The obligations under the charter are defined and known. This provision, as opposed to sub-clauses (a) and (b), does not authorise the party to determine the terms of the provision unilaterally.

However, Clause (b) of Article XXI is the main controversial provision. The language of this particular Clause is ambiguous, and it leaves scope for the state parties to interpret and appropriate according to their own will. The word ‘it considers’ in this Clause provides discretion to WTO party to invoke measures by citing the conditions covered under the sub-clauses (ii) and (iii).

III. Part B

Scholarly interpretations

There have been contradictions among the scholars; some have argued that the provision was intended to be ‘self-judging’ while some have argued that it is reviewable by the panel. The following are some of the interpretations made by scholars relating to the provision.

According to Raj Bhala article XXI is self-judging. He further explains that the word ‘it’ establishes that neither ‘WTO member nor a group of members, and no WTO panel or other adjudicatory body has any right to determine whether a measure taken by a sanctioning member satisfies the requirements.’²⁰

Professor Roger Alford has suggested three possible interpretations of Article XXI: (i) that a member is empowered to determine a measure for its security interests. Thus self-judging, or (ii) State has a right to define a measure relating to security. However, the good faith standard should be adopted, and it shall be subject to judicial review, or (iii) That the state shall be independent to decide for itself, a measure so as to protect national security, but the enumerated conditions under Article XXI shall be a matter for judicial review²¹. He has further stated that ‘regardless of whether a future WTO panel may interpret the security exception as self-judging, for the past sixty years it has been self-judging.’²²

It has also been suggested that the self-judging nature of the provision is justified because, at the core, the provision deals with a ‘political question’, and thus it should not be reviewable by the panel²³. Some scholars like Richard Sutherland Whitt have written that article XXI(b)iii “mandates a unilateral interpretation and fails to raise even the possibility of a statutory stigma attached to its blatant misuse.”²⁴

On the contrary to the scholars favouring ‘self-judging’ aspect of the provision, it has been argued by academics like Van den Bossche²⁵ that ‘under the WTO system, security exception cases are procedurally ensured to be subject to judicial review and the panel and the Appellate Body should examine whether a Member’s explanation is reasonable or whether the measure constitutes an apparent abuse.’²⁶

Suggestions have been made by some scholars that a distinction is to be made between the ‘authority to define’ and ‘authority to interpret’ between the states and the panel, respectively. They argue that the states have the right to define their necessary security interests, but this is subject to a panel review. The panel will then ascertain whether the measure is in sync with the interpretations of the provision²⁷ or not. On the same lines, some scholars have suggested that there should be a two-stage test, focusing on subjective and objective elements, for determining ‘good faith’²⁸. Some authors have also suggested that the invocation of Article XXI should be reviewable by a panel from ‘the perspective of the standard of review analysis developed under the WTO jurisprudence.’²⁹

State practice and gatt/wto jurisprudence

The security exceptions under Article XXI are different from the General Exceptions under Article XX of the agreement. Why can we not equate the exception of National Security with the general exceptions under Article XX? It is because the latter has been subject to review and is not ‘self-judging’. Additionally, we have access to loads of DSB decisions that deal with Article XX, which in the case of Article XXI, are absent. Thus, the customary rules of interpreting the Articles³⁰ are necessary to understand the provision better.

The customary rules of treaty interpretations might sometimes give contradictory interpretations; for instance, the ‘object and purpose’³¹ of the agreement is trade liberalisation; on the contrary, the object and purpose of Article XXI are to protect national security. In this case, we have contradictory goals. Similarly, interpreting in ‘Good faith’³² might be confusing; of course, the states are under obligation to invoke this exception in good faith, but who is to adjudicate whether the standard was maintained or not?³³ What should be done when there is any inconsistency between the object and purpose of the treaty and its provision? In these circumstances, in order to properly interpret the provision, it is imperative to look into the state practice³⁴, which is also one of the criteria to consider while interpreting a treaty. ‘The lex generalis of treaty interpretation and the lex specialis of WTO Law require reliance on state practice in interpreting treaty provisions.’³⁵

Following are some instances of the invocation of this Article XXI and the response of the Trade regimes:

(A) Marshall Plan and subsequent Czechoslovakia’s objection 1948:

In the late 40s, the US Government’s economic policy aimed at spending billions of dollars to prevent the economic downfall of the Western European allied nations so as to counter the Soviet communist threat; this was known as Marshall Plan³⁶. ‘Under this plan, the US established an export control programme and shipments of products in short supply or military significance were licensed freely to the participating countries, but it carefully controlled the export into Eastern European countries³⁷. Czechoslovakia challenged the plan by filing a complaint before the GATT that it violates the MFN principle. It was further argued that the language of Article XXI is very broad, and hence US’ invocation is an abuse³⁸. The US, on the other hand, argued that it has the right to determine its own security concerns³⁹. At the GATT council meeting⁴⁰, Czechoslovakia demanded a decision on this. ‘With the exception of Czechoslovakia, the members unanimously voted against referring the matter to a Panel for decision’⁴¹ and thus, the matter was never adjudicated.

(B) Swedish Import Restrictions on certain shoes 1975:

The GATT members raised more vocal concerns in 1975 when Sweden imposed an import quota on certain footwear⁴². Sweden’s measure to shelter Sweden’s domestic footwear industry questioned the scope of the security provision. ‘It was doubtful whether a measure that fulfils industrial policy falls under the security exception.’⁴³ Sweden argued that its ban is consistent with the ‘spirit of Article XXI’⁴⁴. The rationale cited by Sweden was that the ‘decrease in domestic production had become a critical threat to the emergency planning of Sweden’s economic defence’⁴⁵. ‘Sweden revoked its measure on July 1, 1977, without prompting from the GATT, the argument that Sweden’s measure was likely more for a commercial purpose rather than for national security seems to have been compelling.’⁴⁶ This was one of the earliest incidents where this provision was unilaterally invoked and revoked.

(C) Argentina 1982:

When the European Economic Community (EEC) and others⁴⁷ applied trade restrictions on Argentina, the representative of the EEC, during the council discussion, stated that when measures are invoked under Article XXI, the parties do not require “notification, justification or approval”⁴⁸. The US Representative stated on the issue that, “The General Agreement left each contracting party the judgment as to what is considered to be necessary to protect its security interests. The contracting parties had no power to question that judgment.”⁴⁹ Thus, it seems clear that the ‘Contracting Parties held the view that national security is self-judging.’⁵⁰

(D) United States—Trade Measures Affecting Nicaragua:

US Government in 1985 prohibited all ‘trade and transactions relating to air and sea transportation between Nicaragua and the US’⁵¹. The US invoked Article XXI(b)iii as a justification for the measure. Nicaragua argued that the measure was not taken ‘in time of war or another emergency in international relations’. The discussion to determine the contracting parties’ power and the extent of such power to review the security measure was held in the GATT council⁵². The panel established for the resolution was under special terms of reference stating that “the panel cannot examine or judge the validity or mediation for the invocation of Article XXI(b)iii by the US”⁵³’.⁵⁴ The panel did not rule on this matter and cited that the narrow terms of reference prevent it from ascertaining the actions of the US with respect to its obligations under the agreement⁵⁵.

The panel voiced its concern about the undermining of the object and purpose of the GATT on the pretext of security exception. The ‘unadopted report’ said, ‘GATT could not achieve its basic aims unless each contracting party, whenever it made use of its rights under Article XXI, carefully weighed its security needs against the need to maintain stable trade relations’⁵⁶.

(E) WTO JURISPRUDENCE- U.S. Helms-Burton Act of 1996:

In 1996, the European Union challenged US’ Helms-Burton Act. The act ‘was designed to tighten the 1962 embargo on communist-controlled Cuba’⁵⁷. The act authorised American nationals to sue foreign companies dealing with the Cuban controlled former US properties. The act further empowered the State department to reject visas to the beneficiaries of such companies. EU complained against the act on the grounds that it violated GATT and GATS principles, while the US justified the act by invoking Article XXI and further argued that the dispute settlement panel of the WTO is not empowered to adjudicate upon the measures undertaken under article XXI⁵⁸. The issue didn’t go any further; the EU and the US signed a Memorandum of Understanding (MOU) and reached a mutual agreement. EU’s proceedings were suspended after the expiration of 12 months⁵⁹. In this case, too, the panel could not review the decision.

Current WTO disputes

In the past couple of years, few cases have emerged where invocation of article XXI was challenged; these cases are yet to be determined by the panel. The emergence of these new cases has certainly sparked the debate over the question of abuse relating to the invocation of this article.

• Russia- Measures concerning traffic in transit 2016: ‘Ukraine alleged breaches of the “Freedom of Transit” provisions of GATT Article V. The issue essentially relate to the transit of Ukrainian goods through Russia to the central Asian countries, Russia cited national security exception under XXI(b)iii⁶⁰. This was the first incident in recent years where the ghost of the National Security exception appeared again. This dispute is still pending to be resolved by the panel.
• UAE- Measures relating to trade in goods and services and trade-related aspects of Intellectual property rights (TRIPS) 2017: Qatar requested consultations with the UAE for the imposition of a measure, which according to Qatar, was inconsistent with the provisions under GATT, GATS and TRIPS⁶¹. ‘Qatar requested the establishment of a panel with respect to “measures taken in the context of coercive attempts at economic isolation” allegedly imposed by the UAE against Qatar.’⁶² UAE argued that it has the right to invoke national security provisions available under the three agreements in question⁶³. Presently, the panel has been composed for the resolutions of this dispute, and it has yet to decide.
• US- Certain measures on steel and Aluminium Products- 2018: US imposed import duties on imports of steel and aluminium products, by invoking article XXI, on the pretext of ‘national emergency’⁶⁴. ‘The US argument in that regard is rather simple: Steel and aluminium are needed in the defence industry and for the maintenance of US critical infrastructure.’⁶⁵ China requested the establishment of the panel⁶⁶, and the panel is yet to decide upon the issue.

Thus, the above-mentioned recent WTO disputes relating to Article XXI are yet to be decided and hence, we don’t have an authoritative interpretation by the dispute settlement body. Interestingly, the common rationale of imposing a national security exception in the above-mentioned cases have been the change in bilateral geopolitical relations among the states; for instance, the Russian federation barred the freedom of transit because Ukraine and Russia had major geopolitical issues⁶⁷. In the case of UAE and Qatar, the open support of Qatar for some extremist Islamist groups was cited by UAE⁶⁸. The uses of this provision as a result of strained geopolitical relations have been common.

However, the USA’s measure on steel against Chinese imports has created serious controversy, as according to many, this measure is a black lie⁶⁹ and is not aimed at protecting National Security concerns. Some scholars have suggested that US’ measure does not satisfy the conditions covered under article XXI⁷⁰. This article confirms this assertion that the US’ measure is arbitrary and not justified. Barring the measure on steel taken by the US, the majority of the cases in which national security has been invoked were directly related to troubled relations in International diplomacy that entailed certain security measures. Hence, scholars are not wrong to infer that national security invocation has not been invoked very frequently by the states except for justified geopolitical security concerns.

The major problem: the vague language of Article XXI:

It is true that the language of the text is not precise, and it gives rise to many interpretations; for instance, the language of clause ‘b’ and of its sub-clause (iii) is particularly unclear. Similarly, the opening lines of the article include a word like ‘nothing’, which restricts the possibility of any kind of review in the cases of invocation. The words like ‘war or other emergencies in International Relations’ has many connotations and is ambiguous.

Do we need a formal declaration of war? Or whether ‘trade wars’ can be considered as ‘war’ within the meaning of this article? What is an ‘emergency’? Is it something sudden or unexpected?⁷¹ Or a future deprivation can also be considered an emergency? What if a state justifies protectionism on the pretext that a deprived domestic industry is, in the long run, a threat to its National Security and hence protecting it is an emergency? These are the questions that need authoritative clarifications, and in the absence of such clarifications, there is scope for misuse.

Are the security exceptions ‘self-judging’?

The above-mentioned interpretations made by scholars differ, but the majority of the scholars have suggested that the exceptions under Article XXI have been ‘self-judging’ and the language of the provision is broad enough to give enough discretionary power to the states. However, most of the scholars do recognise that, despite the ‘self-judging’ feature of Article XXI, there is a need to have some check over the applicability of the article. On the other hand, the state practices strongly suggest that hitherto, the invocation of the article has been unilateral and self-judging. Similarly, by assessing the jurisprudence of both the GATT and WTO era, it seems that the panel has never been able to authoritatively determine a ‘national security’ dispute.

This paper, on the basis of the aforementioned reasons, acknowledges that article XXI of GATT is and has always been ‘self-judging’. ‘Thus, the question whether the invocation of Article XXI to justify actions that would otherwise violate provisions of the WTO agreements can be challenged in the WTO dispute settlement system is still open.’⁷² The states have till now accepted this provision as ‘self-judging’.

IV. Part c

This paper supports that the States should have the right to determine their own security concerns and the power to take measures in order to achieve them. Additionally, the state practice and the intention of the parties as assessed by the language of the article clearly validate that Article XXI is ‘self-judging’. However, this paper recognises that the measure taken by the US⁷³ is an example of blatant misuse, which is why the concerns regarding Article XXI are being raised, but that does not demonstrate that all the other invocations, in the past, have been in bad faith. ‘The existing ambiguity of national security provision has not frustrated the implementation of the GATT regime’⁷⁴. Similarly, invocation of the provision has not yet negatively affected the functioning of WTO.

Professor Alford has suggested that ‘the WTO regime includes a number of devices to address the concerns related to national security also referred, by him, as “sovereignty safety valves”’⁷⁵. By virtue of these ‘safety valves’, the member states can achieve their security objectives without invoking the security exception. These safety valves, according to him, are a) Opt-out approaches like invoking article XXXV of the GATT, which provides a way-out for nations with strained relations to avoid normal trading standards⁷⁶; b.) Preferential trade agreements- allowed under article XXIV of the GATT, which empowers them to incorporate national security standards amongst each other so as to maintain their national security standards and c) Generalised System of Preferences⁷⁷.

By virtue of having other options to attain the national security objective, it is highly unlikely for the states to directly invoke Article XXI, which is why this provision has a history of infrequent use. The panel has not reviewed this article, and states are practically independent to apply this exception, then. Why is the application not that common among the states in the long history of the GATT and WTO system? What is the reason for such rare invocation? The answer to these questions lies with the idea that states primarily use this exception as a last resort and in good faith.

Trade liberalisation is a two-way street; the parties to the WTO system are all beneficiaries to the same standards of treatment; hence, unless there is a serious political issue with the current system, no state will take decisions in haste just to face retaliation and the risk of losing billion dollars worth of trade. Although, the paper acknowledges that article XXI is not foolproof from abuse and certainly proper regulation is necessary. Considering the current reluctance of the dispute settlement board (DSB), it is not prudent to suggest that DSB should resolve the legal issues relating to this provision.

The Problem with DSB’s review of Article XXI:

Some states have argued that the panel and the

DSB can review the provision as they are under obligation to do so as per article 7 of the DSU, which provides for a term of reference⁷⁸. Australia⁷⁹ and the European Commission⁸⁰ maintained a similar approach as third parties in the Russia-Transit case, where they have suggested that Article 7 provides the panel and the AB to review article, XXI. The US, quite contrary to this, has argued that Article 7 does not apply in the case of article XXI.⁸¹ Thus, there is a clear dispute between the countries at this moment, as far as the question of review is concerned.

In the case of Steel and Aluminium, there is no doubt about the fact that the current abuse by the US, if successful, will set a bad precedent for other states to invoke such measures as retaliation. However, if we consider the current bleak scenario of the DSB and the dispute among parties about the review question, it is hard to expect the DSB to take any decision on this matter. In the US Measure on steel and aluminium, the DSB faces a dilemma that if they review the measure, the US might simply walk out of the WTO system on the pretext that such review is ultra vires. Such inaction will further give way to similar retaliatory measures by countries such as China⁸² , and that will be a major blow to the WTO system.

Why a diplomatic solution, in this scenario, is better than DSB’s review?

Due to the lack of comprehensive jurisprudence and the dispute among the parties with respect to the legality of the DSB’s reviewing article XXI, it is better to find a diplomatic solution to this problem.

The decision to determine the scope and invocation of this provision needs to be addressed and determined by a common consensus amongst the members and not by the DSB. This paper recommends that all WTO member parties should formulate a clarification with respect to article XXI and adopt general recommendations and standards for the application of Article XXI. A diplomatic decision based upon common consensus has a higher chance of uniform acceptance. It is true that the WTO regime, as opposed to the former GATT regime, relies more on law rather than diplomacy; however, diplomacy can play a vital role in mitigating the threats of abuse that this provision involves.

Ultimately, given the current condition of the DSB, the historical restrain of the states and the notion of state sovereignty, the security exception should remain self-judging.

V. Conclusion

This article examined the provision and determined whether the provision is ‘self-judging’ or not. The reasons for the conclusion that it is, and always have been, ‘self-judging’ was the state practices, the language of the provision and the way they were dealt with by the GATT/WTO community.

National security is a sovereign prerogative, and no obligation should affect any state negatively, and if there is a clash between a state’s sovereignty and obligations, the former should always prevail. ‘In The Wealth of Nations, Adam Smith identified only one type of government action that justified a departure from free trade: laws designed to protect the national defence.’⁸³

International Trade regulations should always be subordinate to National security and State sovereignty; on the basis of this reasoning, the paper supports the argument that the provision should be ‘self-judging’. However, the essay does not discredit the argument of potential abuse.

As far as the future of the provision and review question is concerned, this paper has discussed some suggestions made by scholars to maintain a check upon the misuse of national security provisions in parts A and C of the essay. The essay did not delve much into the suggestions, as it was beyond the scope of the essay. At last, the essay suggests, considering the current situation, that problem concerning Article XXI can only be efficiently addressed through diplomacy and not by law.

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VI. References

Books:

• A.S. Alexanderoff, R. Sharma, ‘The National Security Provision- GATT Article XXI’, in Macrory P.F.J., Appleton A.E., Plummer M.G. (ed.) The world trade organisation: Legal, Economics and Political Analysis.
• P. Van den Bossche and W Zdouc, ‘The law and policy of the WTO: texts, cases and materials’, (3^rd edition Cambridge University press).
• Michael J.Trebilcock and Robert Howse, ‘The regulation of International Trade’, (3^rd Edition Routledge).
• Jackson, John H, ‘The World Trading System: Law And Policy Of International Economic Relations’. (1989).

Journal Articles:

• Raj Bhala, National Security and International Trade Law: What the GATT Says, and what the United States Does, 19 U. Pa. J. Int'l Econ. L. (1998) 263.
• Roger P. Alford, ‘The Self-Judging WTO Security Exception’, 2011 Utah L. Rev. 697 (2011).
• Sophocles Kitharidis, ‘The Unknown Territories of the National Security Exception: The Importance and Interpretation of Art XXI of the GATT’, 21 Austl. Int'l LJ 79 (2014).
• A. Buser, ‘Justiciability of Security Exceptions in the US Steel (and other) Disputes: Some Middle-Ground Options and the Requirements of Article XXI lit. b (i)-(iii)’, (2018) EJIL.
• T. Voon, ‘Can International Trade law recover? The security exception in WTO Law: Entering a new era’, (2019) 113 AJIL 45.
• Tsai-fang Chen, ‘To judge the “Self-judging” Security Exception under the GATT 1994- A Systematic approach’ (2017) Vol 12 AJWH 311.
• Shin-Ye-Peng, ‘Cybersecurity threats and the WTO national security exceptions’ 18(2) IJEL (2015) 449.
• H.L. Scholemann & S. Ohlholff, ‘Constitutionalization and Dispute Settlement in the WTO: National Security as an issue of competence’ 93 AJIL (1999) 424.
• Ji Yeong Yoo & D. Ahn, ‘Security Exception in the WTO System: Bridge or Bottle Neck for trade and security’, 2016 JIEL 417.
• R.S. Whitt, ‘The policies of procedure: An examination of the GATT Dispute Settlement Panel and the article XXI Defence in the context of US Embargo of Nicaragua’, 12 L&PIB (1987) 603.
• Wesley A. Cann, Jr., Creating Standards and Accountability for the Use of the WTO Security Exception: Reducing the Role of Power-Based Relations and Establishing a New Balance Between Sovereignty and Multilateralism, 26 Yale J. Int'l L. (2001) at 421.
• C. Todd Piczak, ‘The Helms-Burton Act: US Foreign policy towards Cuba, The national Security exception to the GATT and the political question doctrine’, University of Pittsburgh Law review 61(1) (1999) 287.
• A. Emmerson, ‘Conceptualising security exceptions: Legal doctrine or political excuse?’ (2008) 11(1) JIEL 135-154.
• Akande, Dapo & Sope Williams, ‘International Adjudication on National Security Issues: What Role for the WTO?’, (2003) 43 VJIL 365.
• Guzman, Andrew T, ‘Determining the Appropriate Standard of Review in WTO Disputes’, (2009) 42 CILJ 45.

Treaties:

• General Agreement on Tariffs and Trade, 1947.
• Vienna Convention on the Law of Treaties, May 23, 1969.
• Trade-Related Aspects of Intellectual Property Rights, 1994.

Online Articles:

• World Trade Organisation, ‘Security Exception’ Article XXI, https://www.wto.org/english/res_e/booksp_e/gatt_ai_e/art21_e.pdf. Accessed March 6 2019.
• Deepak and Nira Raj centre on Indian Economic policies, ‘WTO on the brink: By invoking national security clause, Trump goes for nuclear option in trade’ (Columbia SIPA) http://indianeconomy.columbia.edu/content/wto-brink-invoking-national-security-clause-trump-goes-nuclear-option-trade-war. Accessed March 11 2019.
• J. Weiler, ‘Black Lies, White Lies and Some Uncomfortable Truths in and of the International Trading System’ (2018 EJIL.Talk) https://www.ejiltalk.org/black-lies-white-lies-and-some-uncomfortable-truths-in-and-of-the-international-trading-system/ Accessed March 10 2019.
• The New York Times, ‘Russia-Ukraine Ties Sour Further as Moscow Imposes Sanctions’ (2018) https://www.nytimes.com/201 8/11/01/world/europe/russia-ukraine-ties-sour-further-as-moscow-imposes-sanctions.html. Accessed March 10 2019.
• WTO, ‘US- Certain measures on steel and Aluminium Products’ https://www.wto.org /english/tratop_e/dispu_e/cases_e/ds544_e.htm. Accessed March 10 2019.
• WTO, ‘UAE- Measures relating to trade in goods and services and TRIPS’ <https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds526_e.htm. Accessed March 10 2019.
• Federal register, ‘Adjusting imports of steel into the US’ (Presidential document 2018), https://www.govinfo.gov/content/pkg/FR-2018-03-15/pdf/2018-05478.pdf. Accessed March 10 2019.
• Editors of Encyclopedia Britannica, ‘Marshall Plan’, (Encyclopedia Britannica), https://www.britannica.com/event/Marshall-Plan. Accessed March 8 2019.
• Bridges, US Refuses WTO Helm-Burton Authority, (ICTSD 1997) https://www.ictsd.or g/bridges-news/bridges/news/us-refuses-wto-helm-burton-authority. Accessed March 11 2019.

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Footnotes

1. Author is an Advocate (India), Associate Twinwood Law Practice Ltd., Birmingham (United Kingdom), India.

2. A.S. Alexanderoff, R. Sharma (2005) The National Security Provision- GATT Article XXI, in Macrory P.F.J., Appleton A.E., Plummer M.G. (ed.) The world trade organisation: Legal, Economics and Political Analysis. Pg. 1572. ↩

3. GATS Article XIV bis and TRIPS Article 73. ↩

4. T. Voon, ‘Can International Trade law recover? The security exception in WTO Law: Entering a new era’ (2019) 113 AJIL 45, 45. ↩

5. Supra Note 1, id. ↩

6. Supra note 3, at 45. ↩

7. World Trade Organisation, ‘Security Exception’ Article XXI <https://www.wto.org/english/res_e/boo ksp_e/gatt_ai_e/art21_e.pdf >accessed 6 March 2019. ↩

8. GATT Art. XXI a. ↩

9. Ibid, Art. XXI b (i). ↩

10. Id. b (ii). ↩

11. Id. b (iii). ↩

12. Art XXI c. ↩

13. Roger P. Alford, The Self-Judging WTO Security Exception, 2011 Utah L. Rev. 697 (2011). Available at: <https://scholarship.law.nd.edu/law_faculty_scholarship/330>, pg. 703. ↩

14. Wesley A. Cann, Jr., Creating Standards and Accountability for the Use of the WTO Security Exception: Reducing the Role of Power-Based Relations and Establishing a New Balance Between Sovereignty and Multilateralism, 26 Yale J. Int'l L. (2001) at 421. ↩

15. Raj Bhala, National Security and International Trade Law: What the GATT Says, and what the United States Does, 19 U. Pa. J. Int'l Econ. L. (1998) 263 at 266. ↩

16. Id. at 267. ↩

17. Id. 263. ↩

18. Security Exceptions, WTO, <https://www.wto.org/english/res_e/booksp_e/gatt_ai_e/art21_e.pdf> , at 602. Accessed 7 March 2019. ↩

19. Id. ↩

20. Supra note 14, R Bhala at 268-69. ↩

21. Supra note 12, Alford at 704. ↩

22. Id at 708. ↩

23. C. Todd Piczak, ‘The Helms-Burton Act: US Foreign policy towards Cuba, The national Security exception to the GATT and the political question doctrine’, University of Pittsburgh Law review 61(1) (1999) 287, 318-26. ↩

24. R.S. Whitt, ‘The policies of procedure: An examination of the GATT Dispute Settlement Panel and the article XXI Defence in the context of US Embargo of Nicaragua’, 12 L&PIB (1987) 603, 616. ↩

25. P. Van den Bossche and W Zdouc, The law and policy of the WTO: texts, cases and materials (3^rd edition Cambridge University press) at 596. ↩

26. Ji Yeong Yoo & D. Ahn, ‘Security Exception in the WTO System: Bridge or Bottle Neck for trade and security’ (2016) JIEL 417-444, at 428. ↩

27. H.L. Scholemann & S. Ohlholff, ‘Constitutionalization and Dispute Settlement in the WTO: National Security as an issue of competence’ 93 AJIL (1999) 424, 426-27. ↩

28. Shin-Ye-Peng, ‘Cybersecurity threats and the WTO national security exceptions’ 18(2) IJEL (2015) 449, 467-68. ↩

29. Tsai-fang Chen, ‘To judge the “Self-judging” Security Exception under the GATT 1994- A Systematic approach’ (2017) Vol 12 AJWH 311, 312. ↩

30. Article 31-32, Vienna Convention on the Law of Treaties 1969. ↩

31. Id Article 31. ↩

32. Id. Article 31. ↩

33. Supra note 12, Alford at 706-7. ↩

34. VCLT, Article 31(3)b. ↩

35. Supra Note 12 Alford at 708. ↩

36. Editors of Encyclopedia Britannica, ‘Marshall Plan’, (Encyclopedia Britannica) <https://www.britannica.com/event/Marshall-Plan> accessed 8 March 2019. ↩

37. Alford at 709. ↩

38. Statements by Czechoslovak Delegation to Item 14 of Agenda, Request of the Government of Czechoslovakia for a Decision Under Article XXHII as to Whether or Not the Government of the United States of America Has Failed to Carry Out Its Obligations Under the Agreement Through Its Administration of the Issue of Export Licenses, at 5, 12, CP.3/33 (May 30, 1949). As cited by Roger Alford at 709-10. ↩

39. Reply by the Vice Chairman of the U.S. Delegation, Mr. John W. Evans, to the Speech by the Head of the Czechoslovak Delegation Under Item 14 on the Agenda, at 4, CP.3/38 (June 2, 1949). ↩

40. GATT Council, Summary Record of the Twenty-Second Meeting, at 9, CP.3/SR.22 (June 8, 1949). ↩

41. Supra Note 12, Alford at 710. ↩

42. Sweden—Import Restrictions on Certain Footwear, L/4250 (November 17, 1975) at 3, quoted in GATT LAW AND PRACTICE, 1994 at p. 557. ↩

43. Supra note 27 at 317. ↩

44. Supra Note 1 at Pg. 1574. ↩

45. Summary Record of the Twenty-Second Meeting, June 8, 1949, CP.3/SR22—II/28. ↩

46. Supra note 42 Ibid. ↩

47. Australia and Canada. ↩

48. GATT Council, Minutes of Meeting Held in the Centre William Rappard on 7 May 1982, at 10, GATT Doc. C/M/157 (June 22, 1982). ↩

49. GATT Council, Minutes of Meeting Held in the Centre William Rappard on 29-30 June 1982, at 19. ↩

50. Supra Note 27 at 318. ↩

51. Supra Note 1 at 1576. ↩

52. Supra Note 27 at 318. ↩

53. GATT Council, Minutes of Meeting Held in the Centre William Rappard on 12 March 1986, at 7, GATT Doc. C/M/196 (Apr. 2, 1986). ↩

54. Tsai-fang Chen, ‘To judge the “Self-judging” Security Exception under the GATT 1994- A Systematic approach’ (2017) Vol 12 AJWH 311, 318. ↩

55. Supra note 49 Ibid. ↩

56. Report of the Panel, United States — Trade Measures Affecting Nicaragua, Para 5.3, L/6053 (Oct. 13, 1986). ↩

57. Supra Note 1 at 1577. ↩

58. Bridges, US Refuses WTO Helm-Burton Authority, (ICTSD 1997) <https://www.ictsd.org/bridges-news/bridges/news/us-refuses-wto-helm-burton-authority > accessed 11 March 2019. ↩

59. The proceedings lapsed in 1998, since cases cannot be suspended for more than one year, Under Article 12:12. Dispute Settlement Understanding. ↩

60. Supra Note 3 at 46. ↩

61. WTO, ‘UAE- Measures relating to trade in goods and services and TRIPS’ < https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds526_e.htm > accessed 10 March 2019. ↩

62. Supra note 1 at 46. ↩

63. Qatar Seeks WTO Panel Review of UAE Measures on Goods, Services, IP Rights, WTO (Oct. 23, 2017). ↩

64. Federal register, ‘Adjusting imports of steel into the US’ (Presidential document 2018), <https://www.govinfo.gov/content/pkg/FR-2018-03-15/pdf/2018-05478.pdf > accessed 10 March 2019. ↩

65. A. Buser, ‘Justiciability of Security Exceptions in the US Steel (and other) Disputes: Some Middle-Ground Options and the Requirements of Article XXI lit. b (i)-(iii)’, (2018) EJIL at 2. ↩

66. WTO, ‘US- Certain measures on steel and Aluminium Products’ https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds544_e.htm accessed 10 March 2019. ↩

67. The New York Times, ‘Russia-Ukraine Ties Sour Further as Moscow Imposes Sanctions’ (2018) https://www.nytimes.com/2018/11/01/world/europe/russia-ukraine-ties-sour-further-as-moscow-imposes-sanctions.html Accessed 10 March 2019. ↩

68. BBC, ‘Qatar Crisis’ (2017) <https://www.bbc.co.u k/news/world-middle-east-40173757> Accessed 10 March 2019. ↩

69. J. Weiler, ‘Black Lies, White Lies and Some Uncomfortable Truths in and of the International Trading System’ (2018 EJIL.Talk) https://www.ejiltal k.org/black-lies-white-lies-and-some-uncomfortable-truths-in-and-of-the-international-trading-system/ Accessed 10 March 2019. ↩

70. A. Buser, ‘Justiciability of Security Exceptions in the US Steel (and other) Disputes: Some Middle-Ground Options and the Requirements of Article XXI lit. b (i)-(iii)’, (2018) EJIL at 3-4. ↩

71. Ibid. ↩

72. Supra Note 1 at 1578. ↩

73. US measure on steel and Aluminium. ↩

74. Sophocles Kitharidis, The Unknown Territories of the National Security Exception: The Importance and Interpretation of Art XXI of the GATT, 21 Austl. Int'l L.J. 79 (2014) at 100. ↩

75. Supra note 12, Alford at 725. ↩

76. Id. 726. ↩

77. Id 726-49. ↩

78. Article 7, DSU of the WTO, https://www.wto.org/e nglish/tratop_e/dispu_e/dsu_e.htm. Accessed 11 March 2019. ↩

79. GATT ARTICLE XXIAustralia’s third party submission in Russia – Traffic in Transit, WT/DS512, https://dfat.gov.au/trade/organisations/wto/wto-disputes/Documents/ds512-australias-written-third-party-submission-071117.pdf. ↩

80. European Union’s third-party statement in Russia – Traffic in Transit, WT/DS512, http://trade.ec.europa. eu/doclib/docs/2018/february/tradoc_156602.pdf. ↩

81. United States’ third-party statement in Russia – Traffic in Transit, WT/DS512, https://ustr.gov/sites/ default/files/enforcement/DS/US.3d.Pty.Sub.Re.GATT.XXI.fin.%28public%29.pdf. ↩

82. Deepak and Nira Raj centre on Indian Economic policies, ‘WTO on the brink: By invoking national security clause, Trump goes for nuclear option in trade’ (Columbia SIPA) http://indianeconomy.colum bia.edu/content/wto-brink-invoking-national-security-clause-trump-goes-nuclear-option-trade-war. Accessed 11 March 2019. ↩

83. Supra note 12, Alford at 757. ↩