National Security Exceptions in the WTO - A Carte Blanche for Protectionism? Part I - Introduction, Negotiating history of Art. XXI of GATT, Russia - Traffic in Transit Panel`s Report

Author:Mihai Ioachimescu-Voinea
Position:Leiden University, Netherlands
Pages:12-42
SUMMARY

The security exception enacted in Art. XXI of the General Agreement on Tariffs and Trade has been contentious over the years. Parties have either argued that the security exception has a completely ‘self-judging’ nature, or that it allowed for a limited review by the panels and the Appellate Body, in accordance with the ‘good-faith’ principle. At first, states were reluctant to rely on the security exception provided by the General Agreement on Tariffs and Trade, or to refer the matter to the WTO dispute resolution system when other states relied on it. Even when panels were established under the General Agreement on Tariffs and Trade 1947 in respect to a dispute relating to the security exception, they usually had to act upon a limited mandate which hindered their possibility to examine the scope and limits of the exception. The debate over the extent of the ‘self-judging’ nature of the security exception lasted for more than seventy years, and it finally ended with the ruling in Russia - Measures Concerning Traffic in Transit. In this case, the panel asserted the jurisdiction over the security matters of states and provided a ‘roadmap’ to be followed in future examinations. The legal test devised by the panel consists of two parts. The first part is an objective assessment of whether there is a ‘war’ or an ‘emergency in international relations’ and whether the measures were taken during such state of affairs, according to subparagraph (iii) of Art. XXI of General Agreement on Tariffs and Trade. The second part consists of a two-prongs ‘subjective test.’ It involves a deferential review of the veracity of the state`s security interests and of the necessity of the measures adopted by the invoking state. In doing so, the panel will use a ‘sliding-scale’ test, which enables it to modify the degree of scrutiny based on the gravity of the ‘emergency.’

 
CONTENT
12 MIHAI IOACHIMESCU-VOINEA
National Security Exceptions in the WTO – A Carte Blanche for
Protectionism? Part I – Introduction, Negotiating history
of Art. XXI of GATT, Russia – Traffic in Transit Panel`s Report
Mihai Ioachimescu-Voinea
Leiden University, Netherlands
E-mail : ioachimescu.mihai@gmail.com
This article is based on the Adv. LLM Thesis the author submitted in fulfilment of
the requirements of the Master of Laws: Advanced Studies Programme in European and
International Business Law degree, LEIDEN LAW SCHOOL (LEIDEN UNIVERSITY).
Abstract
The security exception enacted in Art. XXI of the General Agreement on Tariffs and
Trade has been contentious over the years. Parties have either argued that the security
exception has a completely ‘self-judging’ nature, or that it allowed for a limited review by
the panels and the Appellate Body, in accordance with the ‘good-faith’ principle.
At first, states were reluctant to rely on the security exception provided by the
General Agreement on Tariffs and Trade, or to refer the matter to the WTO dispute
resolution system when other states relied on it. Even when panels were established
under the General Agreement on Tariffs and Trade 1947 in respect to a dispute relating
to the security exception, they usually had to act upon a limited mandate which hindered
their possibility to examine the scope and limits of the exception.
The debate over the extent of the ‘self-judging’ nature of the security exception lasted
for more than seventy years, and it finally ended with the ruling in Russia — Measures
Concerning Traffic in Transit. In this case, the panel asserted the jurisdiction over the
security matters of states and provided a ‘roadmap’ to be followed in future examinations.
The legal test devised by the panel consists of two parts. The first part is an objective
assessment of whether there is a ‘war’ or an ‘emergency in international relations’ and
whether the measures were taken during such state of affairs, according to subparagraph
(iii) of Art. XXI of General Agreement on Tariffs and Trade. The second part consists of a
two-prongs ‘subjective test.’ It involves a deferential review of the veracity of the state`s
security interests and of the necessity of the measures adopted by the invoking state. In
doing so, the panel will use a ‘sliding-scale’ test, which enables it to modify the degree of
scrutiny based on the gravity of the ‘emergency.’
Keywords: Public International Law, trade law, World Trade Organization,
national security exception, Art. XXI of GATT, trade war, trade protectionism.
Law Review vol. X, issue 2, July-Decembre 2019, pp. 12-42
National Security Exceptions in the WTO A Carte Blanche for Protectionism? 13
Chapter 1 – Introduction
Security rhetoric has gained more and more momentum over the past years,1
whereas all the former adversaries of the Cold War (United States, Russia and
China) are now part of the same international trade organization, namely the
World Trade Organization (WTO).2 Additionally, the concept of security has
constantly expanded during the years to include economic issues, terrorism
threat or climate change.3 In the light of such dynamics, the ambiguous language
of the security exception of the previous General Agreement on Tariffs and
Trade4 (GATT 1947) was left unchanged at the moment of establishment of
WTO,5 and the adoption of the new General Agreement on Tariffs and Trade6
(GATT or GATT 1994). The ambiguity stems from the wording of the security
provision of Art. XXI of GATT, with regards to its status as a ‘self-judging’ clause
and the standard of review applicable to it.7 As such, an important chance to
revise the 72 years old security exception was lost during the Uruguay rounds of
negotiations.8
Despite a number of disputes9 where contracting parties have relied on the
security exception to justify their GATT inconsistent measures, up until recently,
only one panel report10 confronted the issue of the security exception, which
nevertheless did not settle the question regarding the ‘self-judging’ nature of the
provision, due to the panel’s limited mandate.11 The question of justiciability of
Art. XXI of GATT was finally decided in the Russia – Measures Concerning Traffic
1 J.B. Heath, The New National Security Challenge to the Economic Order, at 3 (forthcoming in the
129 Yale Law Journal).
2 R. J. Neuwirth & A. Svetlicinii, The Economic Sanctions over the Ukraine Conflict and the WTO:
‘Catch-XXI’ and the Revival of the Debate on Security Exceptions, 49 Journal of World Trade 893 (2015).
3 See Heath, supra note 1, at 14; See also Neuwirth, supra note 2 at 907; J.Y. Yoo & D. Ahn,
Security Exceptions in the WTO System: Bridge or Bottle-Neck for Trade and Security?, 19 Journal of
International Economic Law 441 (2016).
4 General Agreement on Tariffs and Trade, GATT Doc. LT/UR/A-1A/1/GATT/2 (1947).
5 See Yoo, supra note 3, at 424; P. Van den Bossche, W. Zdouc, World Trade Organization: Text,
Cases and Materials 85-87, 4th ed. (2017).
6 General Agreement on Tariffs and Trade, WTO Doc. LT/UR/A-1A/1/GATT/1 (1994).
7 See Neuwirth, supra note 2, at 892.
8 See Yoo, supra note 3, at 426.
9 US – Issue of export licenses, CP.3/SR22-II/28 (1949); US – Suspension of obligations between the
US and Czechoslovakia, CP.5/5-II/36 (1951); Peru – Prohibition of Czechoslovakian imports, L/2844
(1954); EC, Australia, Canada – Trade restrictions affecting Argentina applied for non-economic reasons,
C/W/402 (1982); US- Imports of sugar from Nicaragua, BISD/31S/67 (1983); US – Trade measures
affecting Nicaragua, L/6053 (1985); EEC – Trade measures taken by the EC against the Socialist Federal
Republic of Yugoslavia, L/6948 (1992); US – The Cuban Liberty and Democratic Solidarity Act, DS38
(1996), Nicaragua – Measures Affecting Imports from Honduras and Colombia, DS188 (2000).
10 Panel Report, United States – Imports of sugar from Nicaragua, L/6053, not adopted.
11 See Yoo, supra note 3, at 430; See also Bossche, supra note 5, at 619.
14 MIHAI IOACHIMESCU-VOINEA
in Transit case,12 (Russia – Traffic in Transit). By interpreting Art. XXI of GATT,
the panel found in its report13 that it did have jurisdiction to review whether a
contracting party can rely on the security exception. The review was done
according to the overarching principle of good faith, enshrined in Art. 31(1) of
the Vienna Convention on the Law of Treaties (Vienna Convention).14 The
panel`s report was adopted and remained final.
The way in which the panel has reached this conclusion, together with the
question of whether the panel’s test can cope with the increasing tendency of the
contracting states to rely on the security exception, as well as whether the 72
years old security exception is still suitable to address the current challenges of
international trade make the object of this paper. As such, I have structured my
work into six different chapters. The second chapter describes the circumstances
under which Art. XXI of GATT was negotiated and adopted, in order to examine
the purpose and scope of the security exception envisaged at that time.15 The
third chapter analyses the Russia - Traffic in Transit report16 and the fourth chapter
uses the test provided by the panel in Russia - Traffic in Transit17 case in the United
States - Certain Measures on Steel and Aluminium Products18 dispute (US — Steel
and Aluminium Products). The fifth chapter examines some improvements that
could be added to the ‘security test’ and the last chapter concludes the analysis
made with respect to the security exception. My focus will be with respect to Art.
XXI(b)(iii) of the GATT, as it is the security exception most relied upon by the
states over the years.19
Chapter 2 - Negotiating History of Art. XXI of GATT
2.1 Introduction
Essentially the same provision as the one of Art. XXI of GATT is found in
Art. 73 of the Agreement on Trade-Related Aspects of Intellectual Property
Rights20 (TRIPS) and Art. XIVbis of the General Agreement on Trade in Services21
(GATS). The most contentious part of the security exception provision is the
12 Russia — Measures Concerning Traffic in Transit, DS512 (2016).
13 Panel Report, Russia – Measures Concerning Traffic in Transit, WT/DS512/R and Add.1,
adopted 26 April 2019 (not yet published).
14 Vienna Convention on the Law of Treaties, UN Doc. 18232 (1969).
15 See Yoo, supra note 3, at 418.
16 See Panel Report, Russia –Traffic in Transit, supra note 13.
17 See Russia – Traffic in Transit, supra note 12.
18 United States - Certain Measures on Steel and Aluminium Products, DS548 (2018).
19 See Yoo, supra note 3, at 431.
20 Agreement on Trade-Related Aspects of Intellectual Property Rights, WTO Doc. LT/UR/A-
1C/IP/1 (1994).
21 General Agreement on Trade in Services, WTO Doc. LT/UR/A-1B/S/1 (1994).
National Security Exceptions in the WTO A Carte Blanche for Protectionism? 15
wording ‘it considers’, and whether it provides the invoking state with the
absolute discretion to determine its security interests and adopt the measures it
desires to.22
Much of Art. XXI of GATT is based on the final drafts of the International
Trade Organization (ITO) Charter,23 which the provisional GATT 1947
incorporated at that time, to allow the conclusion of negotiations of the broader
ITO Charter. Therefore, in order to better understand the scope of Art. XXI of
GATT and navigate through the ambiguity of its language, we must assess the
intention of the contracting parties at the moment of drafting the security clause.
Subsequently it is my view that (i) the security exception was drafted in order to
cope with the threats of the Cold War, (ii) that it was drafted such that political
matters were left to be handled by the United Nations (UN) and that (iii) the
drafters of the security clause did not envisage the clause to be completely ‘self-
judging.’
2.2 The Cold War threats
The negotiations for the ITO Charter commenced immediately after WWII.
The first United States of America (US) proposal24 was published in November
1945.25 The GATT system was established in 194726 and the demise of ITO
Charter occurred in 1950, together with the failure of the US Congress to approve
it.27 At that time, the representatives of the victorious superpowers (United States
of America, United Kingdom and the Soviet Union) were dividing their
territories and spheres of influences at Yalta Conference.28 The iron curtain fell
over the Eastern Bloc, and the US and its Western allies identified the Soviet
Union as posing an ideologic, economic and existential threat. This threat has
eventually degenerated into the Cold War.
Under these circumstances, professor Clair Wilcox29 recounted that there
were ‘two roads leading to industrial power’30 and it was imperative that other
22 See Heath, supra note 1, at 31.
23 International Trade Organization (Havana Charter), UN Doc. E/CONF.2/78 (1948).
24 Proposals for Expansion of World Trade and Employment, 2411 US Department of State
(1945).
25 See Yoo, supra note 3, at 418.
26 See Heath, supra note 1, at 30.
27 W. Diebold, The End of the ITO 24, 16th ed. (1975).
28 Yalta Conference (1945).
29 Prof. Clair Wilcox was an US economist that served as the head negotiator for the ITO
Charter and chaired the International Trade Conference (https://en.wikipedia.org/wiki/
Clair_Wilcox), last visited (15-07-2019).
30 C. Wilcox, A Charter for World Trade, The Macmillan Company 31 (1949); C. Wilcox, The
Promise of the World Trade Charter, 27 Foreign Affairs 487 (1949).
16 MIHAI IOACHIMESCU-VOINEA
trading nations would follow the US road, rather than the Soviet one.31 Another
US negotiator stated that the insertion of the security exception reflects that ‘the
effort to adopt an orderly basis for the growth of economic relations between
countries is taking place at a time when it is necessary for the Western world to
keep itself well prepared to deal with the assault by the Soviet Union.’32
The desire of the US to rely on an ‘escape clause’ for reasons of security was
thus related to the direct military, ideological and economic threat the Soviet
Union represented at that time. This is reflected in the conventional language
employed by Art. XXI(b) of GATT, which contains expressions such as ‘traffic in
arms’, ‘war’ or ‘military establishment.’ As such, one of the challenges of Art. XXI
of GATT is to assimilate new and non-conventional national security threats,
such as cybersecurity, climate change or protection of telecommunication.33
2.3 Power division between the ITO and the UN
At the Havana Conference, the final draft of the ITO Charter regulated the
security exception in two different parts.34 Part I of the exception was very
similar to what now exists in Art. XXI of GATT and was inserted in Art. 99(1)(b)
of the ITO Charter. Part II of the security exception was found in Art. 86(3) of the
final draft and clarified how the ITO could not override the obligations of other
UN peace treaties.35
Art. 86(3) of the ITO Charter thus allocated the responsibilities between the
ITO and UN. The former organisation was meant to be a purely economic one,
while the latter was left to deal with political matters.36 In this respect, the sixth
negotiating committee noted that paragraph 3 of Article 86 was designed to deal
with any measure connected to political matters, which was to be brought before
the UN in a manner which avoided conflicts of responsibility between the UN
and ITO.37 The drafting committee further noted that ‘the important thing was to
maintain the jurisdiction of the UN over political matters and over economic
measures of this sort taken directly in connection with such a political matter
[…].’38
The final draft of the ITO Charter, together with the reports of the drafting
committees, reveal how the security exception was meant to operate in an
integrated system, which divided the competences between the ITO and UN.
31 M. Pinchis-Paulsen, Trade Multilateralism and National Security: Antinomies in the History of the
International Trade Organization, at 9 (not yet published).
32 Geneva Proposals for an International Trade Charter, US Department of State 45 (1947).
33 See Heath, supra note 1, at 21; See also Neuwirth, supra note 2 at 907.
34 See Yoo, supra note 3, at 421.
35 Id.
36 Id., at 425.
37 Report of the Sixth Committee, UN Doc. E/CONF.2/68, at 3 (1948).
38 Id., at 4.
National Security Exceptions in the WTO A Carte Blanche for Protectionism? 17
Thus, the security exception currently incorporated in Art. XXI of GATT was not
meant to be dealt with solely by the trade organization. With the demise of the
ITO Charter, the current Art. XXI of GATT subsisted with an embedded
ambiguity of jurisdictional division, which offered the contracting parties an
open-ended discretion and a potential power to abuse it.39
2.4 The scope of the security exception and its exceptional character
2.4.1 Security exception as a safety valve
The necessity of a security exception in international legislations stems from
the need of sovereign states to be able to rely on a ‘safety valve’ before adhering
to and complying with the rules of an international organisation.40 Overreach by
international institutions can represent a menace to the sovereignty of states, and
security exceptions can alienate such concerns.41
The ‘exceptional’ character of Art. XXI of GATT is reflected in its very
wording. The exception allows states to adopt GATT inconsistent measures only
when there are threats towards their ‘essential’ security interests, and not just any
security interests. As such, security exceptions are not meant to be relied upon
frequently. Doing so would erode the rule-based system used. So far, the binding
character of WTO Agreements provisions (normative theory), the risk of
retaliation from other states (rational choice theory), the threat of WTO sanctions
(coercion theory), as well as diplomacy have all played a role when it came to
limiting the opportunism opened to states by the ‘escape mechanism.’42
Additionally, the contracting states might have feared relying on the security
exception due to its inherent ambiguity regarding its scope and the fear of the
consequences of an interpreting decision with respect to it.
2.4.2 A possible loophole
The ambiguity of the security provision proposed by the US did not pass
unnoticed during the negotiations of the ITO Charter. During one meeting43 the
Dutch representative - Dr. Antonius Bernadus Speekenbrink sought clarification
as to the meaning of ‘essential security interests’ and ‘emergency in international
relations’, which were ‘difficult to understand’ and could represent ‘a very big
loophole in the whole Charter.’44 Mr. John Leddy - the US representative
39 See Yoo, supra note 3, at 423.
40 See Heath, supra note 1, at 29.
41 W. 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 Journal of International Law 417 (2001).
42 R. P. Alford, The Self-Judging WTO Security Exception, 3 Utah Law Review 749 – 757 (2011).
43 See Pinchis-Paulsen, supra note 31, at 26.
44 UN Verbatim Report, UN Doc. E/PC/T/A/PV/33, at 19 (1947).
18 MIHAI IOACHIMESCU-VOINEA
explained that the wording ‘essential security interests’ stemmed from US
government’s concern of having ‘too wide an exception’ that would ‘permit
anything under the sun.’45 The interpretation of the security exception relates to a
‘question of balance’ which could not be too narrow, it could not ‘prohibit
measures which are needed purely for security reasons’ and could not be too
broad, such that ‘under the guise of security, countries will put on measures
which really have a commercial purpose.’46
As the US representative stated,47 the draft reflected the original position of
the United States. More precisely, it represented the position of Professor Wilcox,
which rejected the Department of State and Department of War pleadings for ‘a
free hand in controlling international transactions for military purposes.’48 When
drafting the clause, Mr. Wilcox insisted that this must be done ‘in a way that
would not give a carte blanche to other countries to violate their commitments
with respect to commercial policy under the clock of a sweeping security
exception.’49
2.4.3 Security exception, a scarecrow?
During the Cold War and up until recently, the exceptional character of Art.
XXI GATT prevailed, with just several disputes50 occurring during a time-frame
of over 70 years.51 As stated earlier, the normative theory52 and the rational choice
theory53 might have played a role in the limited number of disputes that occurred
with respect to Art. XXI of GATT.54 Other factors contributed as well. For
example, the fact that GATT 1947 created a ‘trading club’ in which only the
countries of the Western Bloc were admitted, certainly had a limiting role on the
number of occasions Art. XXI was invoked.55 Additionally, GATT system
remained institutionally too weak to cope with strong political and economic
powers, such as the US.56 Under Articles XXII and XXIII of former GATT 1947,
consensus was required for both the establishment and adoption of panel
reports. However, after the Uruguay round of negotiations and the establishment
of WTO in 1995, the existence of an independent DSB and the automatic dispute
45 Id., at 20.
46 Id., at 21.
47 Id., at 20.
48 See Pinchis-Paulsen, supra note 31, at 9.
49 Id., at 9.
50 See cases cited at note 9, supra.
51 See Yoo, supra note 3, at 430.
52 See Alford, supra note 42, at 753 – 755.
53 Id., at 755 – 757.
54 See Neuwirth, supra note 2 at 908, 909.
55 See Yoo, supra note 3, at 429.
56 Id., at 432.
National Security Exceptions in the WTO A Carte Blanche for Protectionism? 19
settlement procedure created by the Dispute Settlement Understanding57 (DSU)
eliminated the old obstacles existent under the previous system.
2.4.4 Opening pandora`s box
The contracting parties, however, remained reticent in relying on the
security exception, and this was probably related to the ambiguity of Art. XXI of
GATT and the effects which an interpretation of the exception might have had on
the trading system. Thus, the contracting states preferred bargaining in the
‘shadow of law’ than risking the consequences of a binding decision.58 Opening
Pandora`s box could have led to only two results. The first would have seriously
frustrated the contracting party relying on the security exception, while the
second would have questioned the entire system. Exercising control over the
security interests of a contracting state would encourage the invoking party to
either leave the WTO regime or to disobey the panel’s decision - which in itself
erodes the rule.59 A ruling that Art. XXI of GATT was completely ‘self-judging’,
inspires others to play the security card, making the system obsolete.60 Today,
thanks to Russia –Traffic in Transit61 panel’s report,62 we know that the DSB opted
for the former possibility of interpreting Art. XXI of GATT, eliminating the risk of
undermining the entire rule-based system by means of a loophole.
2.4.5 The surge in the national security rhetoric
This decision was inevitable, as the security provision has not been reformed
since its original draft in 1947, and nowadays contracting parties show little
hesitation in relying on it in order to evade their GATT obligations.63 In the last
five years, Russia relied on the security exception for adopting measures against
Ukraine which restricted the traffic of goods in transit.64 The United Arab
Emirates (UAE) have relied on the security exception in its effort of isolating
Qatar, alleging it was ‘forced to take the measures in response to Qatar’s funding
of terrorist organizations.’65 The United States have imposed, with few
exceptions, general tariffs on steel and aluminium relying on Section 232 -
57 Understanding on Rules and Procedures Governing the Settlement of Disputes, WTO Doc.
LT/UR/A-2/DS/U/1 (1994).
58 See Neuwirth, supra note 2 at 908.
59 See Heath, supra note 1, at 29.
60(https://www.politico.eu/article/eu-and-china-break-ultimate-trade-taboo-to-hit-back-at-
trump/) last visited (15-07-2019).
61 See Russia – Traffic in Transit, supra note 12.
62 See Panel Report Russia – Traffic in Transit, supra note 13.
63 T. Voon, The Security Exception In WTO Law: Entering a New Era, 113 AJIL Unbound 45
(2019).
64 See Panel Report Russia – Traffic in Transit, supra note 13 at 53.
65 Dispute Settlement Body Minutes, WTO Doc. WT/DSB/M/403, para. 4.4.
20 MIHAI IOACHIMESCU-VOINEA
Safeguarding security of the Trade Expansion Act of 1962.66 In addition to that,
the US have banned all US companies from trading with Huawei and its affiliates
while citing security concerns.67 This latter measure is now under question, as the
latest declarations of Mr. Trump signals that the US administration is ready to lift
the ban, at least partially.68 However, the surge in adopting GATT inconsistent
measures justified by security interests is reflected in the increased number of
WTO disputes.
In my view, the recent increase of such disputes can be explained on two
accounts. Firstly, the former Cold War geopolitical rivals (Russia, China and US)
are now part of the same integrated trade system. Thus, when adopting strategic
economic measures, one has to rely upon an exception, and the loophole created
by the equivocal security exception represents a convenient choice. Secondly, the
meaning of the security exception has changed over the years.69 The states have
expanded the scope of national security to include threats such as terrorism,
economic issues, infectious diseases, cyber-attacks, transactional crime, climate
change and others.70
In this context, the exception will probably lose its exceptional character, and
it is hard to see how this setting could be reversed. Before, it was thought that the
establishment of a multilateral trading system will lead towards increasing the
living standard, prosperity and thus the avoidance of costly wars.71 This allowed
China and Russia to accede to the WTO system.72 But while relying on this very
system, China closed in the technological and economic gap with the US. This, in
turn, prompted the US to view China as a security threat.73
The paradigm has changed, as economic interdependence is now seen as a
security risk, rather than a benefit.74 States should not forget however that this
vulnerability is strategic and represents the price to be paid for increased
economic prosperity and peace. Ultimately, the economic interdependence
66 US Presidential Proclamation 9705, Presidential Doc. 83 FR 11625 (2018); US Presidential
Proclamation 9704, Presidential Doc. 84 FR 23983 (2018).
67 US Presidential Order 13873, Presidential Doc. 84 FR 22689 (2019); See also US Department of
Commerce BIS Rule, Rules and Regulations 84 FR 22961 (2019).
68 (https://www.theverge.com/2019/6/29/19870318/president-donald-trump-china-huawei-
lift-trade-ban-tariffs-trade-war) last visited (15-07-2019).
69 See Heath, supra note 1, at 4.
70 National Security Strategy, The White House (2015); National Security Strategy, The White
House (2017); National Security Law of the People`s Republic of China (2015).
71 K. J. Vandevelde, The First Bilateral Investment Treaties: US Postwar Friendship, Commerce, and
Navigation Treaties, Oxford University Press 30 (2017); See also Heath, supra note 1, at 26; Pinchis-
Paulsen, supra note 31, at 9.
72 See Heath, supra note 1, at 26.
73 John S. McCain National Defense Authorization Act for Fiscal Year 2019, US Public Law
115–232, Sec. 1261 (2018).
74 See Heath, supra note 1, at 26, 27.
National Security Exceptions in the WTO A Carte Blanche for Protectionism? 21
fulfilled over the years one of the most important peace-keeping functions of
transnational trade.75
2.4.6 Final remarks
In the wake of all these factors, it is clear that the 72 years old GATT security
exception, originally drafted to deal with cold-war threats had to be revised.76
With the failure of the Doha round of negotiation,77 it was left to the DSB to settle
the scope and meaning of Art. XXI of GATT. First it did so in the Russia - Traffic in
Transit78 dispute, which concerned a conflict that closely resembled a war-like
situation, and thus was in harmony with the original purpose of the security
exception.79
This paper continues to analyse the report in the Russia - Traffic in Transit80
dispute, and thereafter examines the more recent US’ tariffs on steel and
aluminium imports, in order to determine whether or not, in my view, such
measures could be justified under Art. XXI of GATT, based on the ‘roadmap’
provided by the Russia – Traffic in Transit report.81
Chapter 3 – Russia – Traffic in Transit
3.1 Background of the dispute
3.1.1 Introduction
The dispute82 between Russia and Ukraine occurred in 2014, and resulted in
Russia’s annexation of the Crimean Peninsula and the occupation of Donetsk and
Luhansk regions by the pro-Russian forces, a matter which was acknowledged
by the December 2016 Resolution83 of the UN General Assembly.84 Since then, a
number of economic sanctions and trade restrictive measures have been imposed
by Russia and Ukraine.85
75 M. J. Hahn, Vital Interests and the Law of GATT: An Analysis of GATT's Security Exception, 12
Michigan Journal of International Law 581 (1991).
76 See Yoo, supra note 3, at 442.
77 S. Evenett, The Doha Round impasse: A graphical account, 9 The Review of International
Organization 143 (2014).
78 See Russia – Traffic in Transit, supra note 12.
79 See Neuwirth, supra note 2 at 907.
80 See Russia – Traffic in Transit, supra note 12.
81 See Panel Report Russia – Traffic in Transit, supra note 13.
82 See Russia – Traffic in Transit, supra note 12.
83 UN Resolution no. 71/205, UN Doc. A/71/484/Add.3 (2016).
84 See Panel Report Russia – Traffic in Transit, supra note 13, at para. 7.8.
85 The contested measures: a. 2016 Belarus Transit Requirements: Requirements that all
international cargo transit by road and rail from Ukraine destined for the Republic of Kazakhstan
or the Kyrgyz Republic, through Russia, be carried out exclusively from Belarus, and comply with
22 MIHAI IOACHIMESCU-VOINEA
3.1.2 Parties` arguments regarding the security exception
In the request for the establishment of a panel,86 Ukraine argued that the
restrictions adopted by the Russian Federation with respect to the goods in
transit on the Russian territory are inconsistent with Articles V and X of GATT.
Russia replied in the written submissions87 that there was an emergency in
international relations that arose in 2014 and which threatened Russia`s ‘essential
security interests.’88 In defending itself, Russia relied on the complete ‘self-
judging’ nature of the security exception.89 As a result, Russia contended that the
panel lacked jurisdiction to rule on the matter.90
Ukraine, on the other hand, contended that according to Articles 7 and 11 of
the Dispute Settlement Understanding, the panel had jurisdiction ‘to examine
and make findings and recommendations with respect to each of the provisions
of the covered agreements […]’, including Art. XXI of GATT 1994.91
Australia, Brazil, Canada, China and the EU, as intervening third parties
argued in favour of the panel’s jurisdiction to review the legality of the measures
based on the security exception. Most notably, the EU argued that the existence
of a ‘war’ or other ‘emergency in international relations’ in subparagraph (iii)
should be interpreted to refer to objective factual circumstances, which are
a number of additional conditions related to identification seals and registration cards at specific
control points on the Belarus-Russia border and the Russia-Kazakhstan border. b. 2016 Transit Bans
on Non-Zero Duty and Resolution No. 778 Goods: Bans on all road and rail transit from Ukraine of:
(i) goods that are subject to non-zero import duties according to the Common Customs Tariff of the
EaEU; and (ii) goods that fall within the scope of the import bans imposed by Resolution No. 778,
which are destined for Kazakhstan or the Kyrgyz Republic. Transit of such goods may only occur
pursuant to a derogation requested by the Governments of Kazakhstan or the Kyrgyz Republic,
which is authorized by the Russian Government, in which case, the transit is subject to the 2016
Belarus Transit Requirements (above). c. 2014 Belarus-Russia Border Bans on Transit of Resolution
No. 778 Goods: Prohibitions on transit from Ukraine across Russia, through checkpoints in Belarus,
of goods subject to veterinary and phytosanitary surveillance and which are subject to the import
bans implemented by Resolution No. 778, along with related requirements that, as of 30 November
2014, such veterinary goods destined for Kazakhstan or third countries enter Russia through
designated checkpoints on the Russian side of the external customs border of the EaEU and only
pursuant to permits issued by the relevant veterinary surveillance authorities of the Government of
Kazakhstan and the Rosselkhoznadzor, and that, as of 24 November 2014, transit to third countries
(including Kazakhstan) of such plant goods take place exclusively through the checkpoints across
the Russian state border.
86 Request for the Establishment of a Panel by Ukraine, WTO Doc. WT/DS512/3 (2017).
87 First Written Submission by Russia, WT/DS512 para. 16 (not publicly available); Second
Written Submission by Russia, WT/DS512 at paras. 19, 21 (not publicly available); Second Written
Submission by Russia, WT/DS512 at para. 18 (not publicly available).
88 See Panel Report Russia – Traffic in Transit, supra note 13 at paras. 7.27-7.30.
89 Id., para. 7.26.
90 Id., para. 7.23.
91 Id., at paras. 7.31-7.34.
National Security Exceptions in the WTO A Carte Blanche for Protectionism? 23
capable of being fully reviewed by the panels.92 An important but perhaps not so
surprising caveat was made by the US. In a letter addressed to the panel`s
Chairman, it contended that the panel lacked jurisdiction to review the state’s
discretion of relying on Art. XXI of GATT, based on the ‘inherent right’ the
contracting parties have on determining the matters which they consider
necessary for the protection of their security interests.93
3.1.3 Panel`s approach
In a landmark decision, that has been praised by some to represent a
‘constitutional’ moment,94 the panel considered that Art. XXI of GATT is not
completely ‘self-judging.’95 In doing so it provided a ‘roadmap’ with respect to
the examination of security exceptions, that could be used in the future by other
WTO panels or trade and investment international courts.96 The WTO panel has
asserted its role in maintaining an oversight on security aspects, by carving out
the legal space required for it to operate.97
The space was created by the panel’s refusal to characterize the conflict, or to
assign any responsibility for it, and by limiting itself to examining matters of
facts only.98 With this approach, the panel ensured that a line is dividing itself, as
an international dispute resolution institution, from other international fora, such
as the UN, which has the role of assessing political questions of international law,
such as breaches of the UN Charter.99 Thus, the panel reassured the contracting
parties that it will not make a legal characterization of the conflict (such as the
existence of a state of war), and it will not rule upon a state’s responsibility, due
to the irrelevance of determining which actor bears international responsibility
for the emergency.100 In doing so, the panel increased the legitimacy-preserving
and authority-enhancing of the WTO DSB, defending itself against possible
92 Third Party Written Submission by EU, WT/DS512 Ref. Ares(2017)5434182 para. 43 (2017).
93 See Panel Report Russia – Traffic in Transit, supra note 13 at paras. 7.51, 7.52.
94 S. Cho, A WTO’s ‘Kompetenz-Kompetenz” Moment, (https://worldtradelaw.typepad.com/
ielpblog/2019/04/a-wtos-kompetenz-kompetenz-moment.html) last visited (16-07-2019).
95 See Panel Report Russia – Traffic in Transit, supra note 13 at paras. 7.102.
96 B. Heath, Trade, Security and Stewardship (Part V): Implications for International Economic Law,
(https://worldtradelaw.typepad.com/ielpblog/2019/05/guest-post-trade-security-and-
stewardship-part-v-implications-for-international-economic-law.html) last visited (16-07-2019).
97 B. Heath, Trade, Trade, Security, and Stewardship (Part I): The Russia — Transit Report’s vision of
WTO Dispute Settlement, (https://worldtradelaw.typepad.com/ielpblog/2019/05/guest-post-
trade-security-and-stewardship-part-i-the-russia-transit-reports-vision-of-wto-dispute-se.html) last
visited (16-07-2019).
98 See Panel Report Russia – Traffic in Transit, supra note 13, para. 7.5.
99 Charter of the United Nations, UN Doc. 1 UNTS XVI, at Art. 2 (1945).
100 See Panel Report Russia – Traffic in Transit, supra note 13, para. 7.121.
24 MIHAI IOACHIMESCU-VOINEA
critics that states might have made as a result of concerns that WTO assumed a
too broad role in examining the national security of states.101
As stated earlier, the most contentious part of Art. XXI of GATT is the
expression ‘it considers’ in subparagraph (b) of Article XXI of GATT, which gave
rise to different opinions regarding its ‘self-judging’ nature.102 The panel adopted
a bifurcated test in its reasoning,103 with an objective test reserved for the
subparagraphs (i) to (iii) of Art. XXI(b) of GATT, and a more deferential,
subjective review, of the chapeau of Art. XXI(b) of GATT.104 The objective test
involves the even-handed determination of the existence of a ‘war’ or other
‘emergency in international relations’, and whether or not the measures were
taken ‘in time of’ such emergency. The subjective test is applied to the chapeau of
Art. XXI(b) of GATT and is two-pronged. The test involves a deferential review
of the veracity of the state’s security interests and the suitability of those
measures to address the state’s security concerns. The subjective test is applied
under the overarching principle of good faith.
3.2 Panel’s jurisdiction
The panel then determined the extent of the ‘self-judging’ nature of the
provision, and whether it only affected the standard of review applicable to the
test, or it also influenced the jurisdiction of the panel.105
Considering the logical structure of the provision, the panel noted that the
three subparagraphs of Art. XXI(b) of GATT operate as ‘limitative qualifying
clauses’, which restrict the ‘exercise of the discretion accorded to Members under
the chapeau to these circumstances.’106 It further noted with respect to
subparagraph (iii) that the words ‘taken in time of’ and ‘emergency in
international relations’ express objective aspects, capable of determination by the
panel.107 It therefore concluded that the adjectival clause ‘which it considers’ in
the chapeau of Article XXI(b), does not qualify the determination of the
101 B. Heath, Trade, Security, and Stewardship (Part II): Making Legal Space to Adjudicate Security
Matters, (https://worldtradelaw.typepad.com/ielpblog/2019/05/guest-post-trade-security-and-
stewardship-part-ii-making-legal-space-to-adjudicate-security-matters.html) last visited (16-07-
2019).
102 See Yoo, supra note 3, at 427.
103 B. Heath, Trade, Security and Stewardship (Part IV): A Variable Framework for Security
Governance, (https://worldtradelaw.typepad.com/ielpblog/2019/05/guest-post-trade-security-
and-stewardship-part-iv-a-variable-framework-for-security-governance.html) last visited (16-07-
2019).
104 Id.
105 S. Schill & R. Briese, ‘If the State Considers”: Self-Judging clauses in international dispute
settlement, 13 Max Planck Yearbook of United Nations Law 97 (2009).
106 See Panel Report Russia – Traffic in Transit, supra note 13, para. 7.65.
107 Id., para. 7.77.
National Security Exceptions in the WTO A Carte Blanche for Protectionism? 25
circumstances in subparagraph (iii).108 In other words, WTO panels and the AB
have the competence to assess, in an objective manner, whether or not the
measures adopted by a state is ‘taken in time of war or other emergency in
international relations.’109 This conclusion was reached based on the textual and
contextual interpretation of Art. XXI of GATT.
The negotiating history of Art. XXI of GATT 1947 was served only to confirm
the above conclusion, according to Art. 32 of the Vienna Convention.110 The panel
noted the two different approaches existent in the US proposals. The first
approach provided for the unlimited discretion of the contracting states to rely
on the security exception, while the second one devised some boundaries which
restricted states’ discretion.111 The panel observed that the latter opinion was
eventually majoritarian amongst the members of the US delegation.112 After
analysing the negotiating history of Article XXI of GATT 1947, it concluded that
the exception presents a question of ‘balance’, where ‘Members would have
‘some latitude’ to determine what their essential security interest are […]’, while
‘in the light of the balance, the security exceptions would remain subject to the
consultations and dispute settlement provisions […].’113
3.3 Objective test
3.3.1 Emergency in international relations
In assessing whether the measures adopted by Russia, were ‘taken in time of
war or other emergency in international relations’, according to subparagraph
(iii) of Art. XXI(b) of GATT, the panel found that an ‘emergency in international
relations’ generally refers to a situation of: a) armed conflict; b) latent armed
conflict; c) heightened tension or crisis; or d) general instability engulfing or
surrounding a state.114
Few mentions must be made in respect to the examples of emergencies.
Firstly, even though the terms should be capable of ‘objective determination’,115
some of them are new and undefined, such as ‘heightened tension or crisis’ and
‘general instability.’116 Some authors reached the conclusion that the definition of
‘emergency in international relations’ provided by the panel can be read very
108 Id., para. 7.82.
109 Id., para. 7.76.
110 Id., para. 7.83.
111 Id., at paras. 7.89, 7.92.
112 Id., para. 7.90.
113 Id., para. 7.98.
114 Id., para. 7.111.
115 Id., para. 7.77.
116 See Heath, supra note 103.
26 MIHAI IOACHIMESCU-VOINEA
broadly.117 Thus, future panels will have enough space to accommodate different
types of emergencies which can generate new security threats, such as
cyberthreats and climate change.
This interpretation is upheld by another argument. In adopting a ‘sliding-
scale’ test when it comes to applying the subjective test,118 the panel took the
view that the closer the ‘emergency in international relations’ is to situation of
‘armed conflict’ or a ‘breakdown of law and public order’, the easier it will be for
the state to articulate its ‘essential security interests.’119 Per a contrario, the panel
accepted the hypothesis that an event which does not involve an armed conflict,
or which does not infringe public order (and which is not limited in any way by
how ‘mild’ it can be), is in principle capable of giving rise to an ‘emergency in
international relations.’
This approach moves away from the initial purpose of the security
exception, which aimed at allowing states the possibility to adopt measures that
would contain Russia’s military and economic threat during the Cold War.120
Applying the ‘legal test’, the panel took the view that the situation between
the countries represents an ‘emergency in international relations.’ In doing so, it
relied on the scarce evidence presented by Russia, which maintained a veil on the
details of the conflict,121 in order to avoid potential self-incrimination. Russia
presented the panel with a ‘hypothetical question’, which presumably reflected
the factual aspects of the conflict, but refused to admit that such was indeed the
case.122 Faced with an world-wide known conflict and with Russia’s refusal to
provide evidence as to its affirmative defence,123 the panel avoided assigning the
burden of proof to Russia, or saying anything about it, despite Ukraine’s
argument that Russia did not discharge its burden of proof.124
In making the decision, the panel relied upon some of the vague facts
presented by Russia, such as: a) the time-period in which the conflict arose; b) the
fact that the situation involved Ukraine; c) the fact that the conflict affected the
security of Russia’s border with Ukraine; and d) that the situation in question
was publicly known.125 The panel also relied on several UN General Assembly
117 Id.; See also S. Lester, The Russia - Traffic in Transit Panel Report (https://worldtradelaw.
typepad.com/ielpblog/2019/04/the-russia-traffic-in-transit-panel-report.html#comments) last visited
(16-07-2019).
118 See Heath, supra note 103.
119 See Panel Report Russia – Traffic in Transit, supra note 13, para. 7.134.
120 See Heath, supra note 1, at 4.
121 See Panel Report Russia – Traffic in Transit, supra note 13, para. 7.134
122 Id., paras.7.114, 7.115.
123 Appellate Body Report, United States – Measure Affecting Imports of Woven Wool Shirts and
Blouses from India, WT/DS33/AB/R, adopted 23 May 1997, and Corr.1, DSR 1997:I, p. 323, at 14.
124 See Panel Report Russia – Traffic in Transit, supra note 13, para. 7.113.
125 Id., para. 7.119.
National Security Exceptions in the WTO A Carte Blanche for Protectionism? 27
Resolutions,126 as well as the Ukraine’s 2016 Trade Policy Review (TPR) report.127
Despite the fact that the TPR Mechanism128 itself states that it is not ‘intended to
serve as a basis for the enforcement of specific obligations under the Agreements
or for dispute settlement procedures’, the panel accepted Ukraine’s TPR report as
evidence for Russia’s argument, contrary to the previous DSB interpretations in
similar cases.129 In doing so, it contended that a distinction must be made
between contracting parties relying on TPR reports in order to determine factual
aspects, and their use for determining legal responsibility.130 While the parties
cannot use TPR reports in the latter case, they are allowed to rely on the reports
in order to determine factual circumstances.131 Thus, the panel assumed a wide
factfinder role, presumably under Art. 13.1 of the DSU and as a result of the
‘different character’132 Art. XXI has, as opposed to Art. XX of GATT.133
3.3.2 Measures ‘taken in time of’ the emergency
The panel explained in para. 7.70 of the report that ‘taken in time of’ simply
requires that the measures are adopted during the ‘emergency in international
relations.’ Although it had to rely on some vague evidences, the panel managed
to objectively determine that there was an ‘emergency in international relations’
according to Art. XXI(b)(iii) of GATT, and that Russia’s measures were ‘taken in
time of’ the emergency. Thus, the panel concluded that the conditions of
subparagraph (iii) of Art. XXI(b) of GATT were met.134
3.4 Subjective test
3.4.1 Good faith principle
The assessment of the chapeau of Art. XXI(b) of GATT is subject to a
deferential approach. The panel took the view that security interests ‘can be
126 See UN Resolution no. 71/205, supra note 83; UN Resolution no. 68/262, UN Doc.
A/RES/68/262 (2014).
127 TPR Report Ukraine, WTO Doc. WT/TPR/G/334 (2016).
128 Trade Policy Review Mechanism, WTO Doc. LT/UR/A-3/TPR/1 (1994).
129 Appellate Body Report, Canada – Measures Affecting the Export of Civilian Aircraft,
WT/DS70/AB/R, adopted 20 August 1999, DSR 1999:III, p. 1377; Panel Report, Chile – Price Band
System and Safeguard Measures Relating to Certain Agricultural Products, WT/DS207/R, adopted 23
October 2002, as modified by Appellate Body Report WT/DS207AB/R, DSR 2002:VIII, p. 3127.
130 B. Heath, Guest Post: Trade, Security and Stewardship (Part III): WTO Panels as Factfinders
under Article XXI, (https://worldtradelaw.typepad.com/ielpblog/2019/05/guest-post-trade-
security-and-stewardship-part-iii-wto-panels-as-factfinders-under-article-xxi.html) last visited (16-
07-2019).
131 See Panel Report Russia – Traffic in Transit, supra note 13, para. 7.118.
132 Id., para. 7.98.
133 See Heath, supra note 130.
134 See Panel Report Russia – Traffic in Transit, supra note 13, paras. 7.124, 7.125.
28 MIHAI IOACHIMESCU-VOINEA
expected to vary with changing circumstances.’135 Again, the panel defines the
concept of ‘security interest’ in a way that will allow for future adjustments
needed for incorporation of the twenty-first-century threats.136
The panel interpreted the segment ‘which it considers […] for the protection
of its essential security interests’ of the chapeau of Art. XXI(b) of GATT as
leaving, in general, to each contracting party the discretion ‘to define what it
considers to be its essential security interests.’137 However, the discretion of a
contracting party is not unlimited, and it is bounded by the ‘obligation to
interpret and apply Article XXI(b)(iii) of the GATT 1994 in good faith.’138 Based
on Article 3.2 of the DSU, the interpretation of WTO provisions is done in
accordance with the rules of interpretation of the Vienna Convention.139 Articles
31(1) and 26 of the Vienna Convention provide that a treaty shall be interpreted
and performed in good faith. The panel referred to in paragraph 7.132 of the
report140 to several previous case-law141 which examined the principle of good
faith in relation to the chapeau of Art. XX of GATT. It concluded that Article XXI
of the GATT cannot be used by the contracting parties ‘as a means to circumvent
their obligations under the GATT 1994 […]’ and the member relying on the
security exception must ‘articulate the essential security interests […] enough to
demonstrate their veracity.’142 Thus, the reference to the ‘good faith principle’ is
judicious143 and has been praised in the previous legal doctrine.144
3.4.2 Essential security interests
The already mentioned ‘sliding-scale’ test is used for determining the
veracity of the state’s security interests, which stem out of the emergency in
international relations. The closer the conflict is to the notion of ‘armed conflict’
or ‘breakdown of law and public order’, the less burdensome will be for the state
135 See Panel Report Russia – Traffic in Transit, supra note 13, para. 7.130.
136 See Heath, supra note 103.
137 See Panel Report Russia – Traffic in Transit, supra note 13, para. 7.131.
138 Id., para. 7.132.
139 Id., para. 7.59.
140 Id., para. 7.132.
141 Id., note 212.
142 Id., paras. 7.133, 7.134.
143 See Cho, supra note 94.
144 E.g. M. J. Hahn, Vital Interests and the Law of GATT: An analysis of GATT`s Security Exception,
12 Michigan Journal of International Law 558 (1991); H. L. Scholemann & S. Ohlhoff,
Constitutionalization and Dispute Settlement in the WTO: Security as an issue of Competence, 93
American Journal of International Law 426 (1999); R. Bonnan, The GATT Security Exception in a
Dispute Resolution Context: Necessity or Incompatibility?, XIX Currents International Trade Law
Journal 3 (2010); S. Peng, Cybersecurity Threats and the WTO Security Exceptions, 18 Journal of
International Economic Law 449 (2015).
National Security Exceptions in the WTO A Carte Blanche for Protectionism? 29
to demonstrate that there is a peril for its ‘essential security interests.’145 The
conflict between Russia and Ukraine was ‘very close to the hard core meaning of
war or armed conflict.’146 Therefore, the panel viewed the scarce articulation of
Russia’s ‘security interests’ as being ‘minimally satisfactory’, taking into account
the hypothetical scenario presented by Russia with respect to the issue of security
at the border of an adjacent country, and presuming that the economic sanctions
imposed by Russia under the Federal Law No. 281-FZ147 were the result of
Russia`s security interests being threaten.148
Although a sliding-scale test provides a flexible framework for the future
panels to adopt either a more deferential or stricter review, depending on the
circumstances of the disputes, it is interesting to note that in this particular case
the panel was left with no other option, if it were to rule in favour of Russia.149
That is because Russia did very little to articulate its ‘essential security interests’,
and under a determined standard of review, Russia’s burden of proof would not
have been met.150
3.4.3 The necessity of the measures
The panel proceeded towards analysing the expression ‘which it considers
necessary’ of the chapeau of Art. XXI of GATT. Similarly, it found that states
have a discretion to determine the necessary measures for their security interests,
bounded by the overarching principle of ‘good faith.’151 The test seems to be
pretty loose, as the measures must meet a ‘minimum requirement of
plausibility.’152 In practice, it would be interesting to see how the two subjective
tests operate together. A strict scrutiny of the ‘sliding-scale’ test involves the
requirement that the state’s ‘essential security interests’ be better articulated. This
makes it correspondingly harder for that state to plausibly establish the
measure’s necessity, as the panel will have a clearer picture of the interests at
stake.153
In the end, the panel found that the measures adopted by Russia were not so
remote or unrelated to the 2014 emergency, such as to make it ‘implausible that
Russia implemented the measures for the protection of its essential security
interests […].’154 Thus, the panel rejected Ukraine’s claims, finding that Russia
145 See Panel Report Russia – Traffic in Transit, supra note 13, para. 7.135.
146 Id., para. 7.136.
147 Federal Law of The Russian Federation, No. 281-FZ (2006).
148 See Panel Report Russia – Traffic in Transit, supra note 13, para.7.137.
149 See Heath, supra note 103.
150 See Panel Report Russia – Traffic in Transit, supra note 13, paras. 7.137, 7.146.
151 Id., para. 7.138.
152 Id.,
153 See Heath, supra note 103.
154 See Panel Report Russia – Traffic in Transit, supra note 13, para. 7.145.
30 MIHAI IOACHIMESCU-VOINEA
had judiciously relied on the security exception when adopting the GATT
inconsistent measures.155
3.5 Importance of the ruling
3.5.1 Security exception is not completely self-judging
The importance of the Russia - Traffic in Transit156 ruling stems from two
considerations. Firstly, the panel established that the DSB has jurisdiction to rule
on security issues, putting an end to the 72 years old debate regarding the ‘self-
judging’ nature of the security exception. Secondly, while ruling on the matter,
the panel provided a ‘roadmap’ on how to examine the security exception in the
future. This is particularly important, because in the past five years WTO has
seen an escalation of the number of cases157 in which contracting states relied
upon the security exception in order to derogate from their GATT obligations.158
3.5.2 Remarks
In my opinion, the ruling presents a politically sensitive and flexible
approach.159 The test ensures that the DSB will not encroach upon sensible
political questions160 and provides future panels with enough levers, such as the
‘sliding-scale’ test, in order to ensure that new security threats can be
scrutinized.161 A few things could be said with respect to the legal test. Firstly, the
test is not corelated with some of the previous interpretations of the DSB. In EC—
Sardines,162 the AB stated that WTO panels must presume that members act in
good faith in fulfilling their WTO obligations. Notwithstanding the above, the
subjective test demands some proof that the state acted in good faith when
155 Id., paras. 8.2, 8.3.
156 See Russia – Traffic in Transit, supra note 12.
157 United Arab Emirates — Measures Relating to Trade in Goods and Services, and Trade-Related
Aspects of Intellectual Property Rights, DS526 (2017); United States — Certain Measures on Steel and
Aluminium Products, DS550 (Canada) (2018), United States — Certain Measures on Steel and
Aluminium Products, DS544 (China) (2018); United States — Certain Measures on Steel and Aluminium
Products, DS547 (India) (2018); United States — Certain Measures on Steel and Aluminium Products,
DS548 (EU)(2018); United States — Certain Measures on Steel and Aluminium Products, DS551 (Mexico)
(2018); United States — Certain Measures on Steel and Aluminium Products, DS552 (Norway) (2018);
United States — Certain Measures on Steel and Aluminium Products, DS554 (Russia) (2018); United
States — Certain Measures on Steel and Aluminium Products, DS556 (Switzerland) (2018); United States
— Certain Measures on Steel and Aluminium Products, DS564 (Turkey) (2018); Russia — Measures
Concerning Traffic in Transit, DS512 (2016).
158 See Heath, supra note 1, at 3.
159 See Heath, supra note 96.
160 See Panel Report Russia – Traffic in Transit, supra note 13, para. 7.4.
161 See Heath, supra note 96.
162 Appellate Body Report, European Communities – Trade Description of Sardines,
WT/DS231/AB/R, adopted 23 October 2002, DSR 2002:VIII, p. 3359, para. 278.
National Security Exceptions in the WTO A Carte Blanche for Protectionism? 31
determining its ‘essential security interests’, and the ‘necessity’ of the measures.
Perhaps this anomaly can also be put on the account of the ‘different character’
Article XXI of GATT has.163 Secondly, the panel might have considered the
usefulness of introducing a procedural review of the administrative process that
led to the adoption of security measures.164 Under the good faith principle, states
could be compelled to follow certain procedural steps, i.e. providing
transparency of the process, stating the reasons, and informing in advance other
contracting states.165 This would incentivize states to bargain ‘in the shadow of
the law’ and reach a consensus, avoiding bringing sensitive issues to the WTO
dispute system. Imposing preliminary procedural obligations would also ease up
the fact-finding work of the panels.
The test however can be improved, and panels may adopt more intrusive
approaches. We must not forget that the Russia – Traffic in Transit166 case is the
first one in which a panel took jurisdiction over security matters.167 In time, the
deferential approach proposed in the Russia – Traffic in Transit168 case may act as a
Trojan horse, expanding the reviewing powers of the WTO DSB.169
3.5.3 Panel`s ruling in the current context
The success of the panel’s decision is dependent upon the institutional
context of the WTO. One must understand that the decision is not the result of
some agreed policy development, but is a daring report delivered at a moment
when the very future of the DSB is questioned.170 Developments of sensitive legal
doctrines are successful when courts receive political signals that they have the
space to do so, and when there is a relatively stable institutional context.171 At
this time, none of these two conditions are fulfilled. The US, which is a founding
and influential contracting state, has strongly voiced its opinions against the
‘judicial activism’ of the AB,172 and the authority of the DSB to assess national
security grounds.173 This is somehow expected, as the US itself plays the security
card in order to justify a series of trade restrictive measures. Additionally, US is
163 See Panel Report Russia – Traffic in Transit, supra note 13, para. 7.98.
164 See Heath, supra note 1, at 53 et seq.
165 Id., at 54.
166 See Russia – Traffic in Transit, supra note 12.
167 See Panel Report Russia – Traffic in Transit, supra note 13, para. 7.20.
168 See Russia – Traffic in Transit, supra note 12.
169 See Heath, supra note 1, at 48.
170 R. McDougall, Crisis in the WTO: Restoring the WTO Dispute Settlement Function Robert
McDougall, Centre for International Governance Innovation 3 (2018); G. Shaffer, A Tragedy in the
Making? The Decline of Law and the Return of Power in International Trade Relations, 44 The Yale
Journal of International Law 8 (2019).
171 See Heath, supra note 96.
172 2019 Trade Policy Agenda and 2018 Annual Report, US Trade Representative at 6 (2019).
173 See Panel Report Russia – Traffic in Transit, supra note 13, para. 7.51.
32 MIHAI IOACHIMESCU-VOINEA
currently blocking the appointment of members to the WTO AB, which will de
facto bring to a halt the activity of the DSB by the end of 2019.174 Article 16.4 of the
DSU provides that a panel report can only be adopted by the DSB and become
binding, after the completion of the appeal procedure. As the former member of
the AB - Prof. Peter Van den Bossche stated in his farewell speech, ‘one can
predict with confidence that, once the AB is paralyzed, the losing party will in
most cases appeal the panel report and thus prevent it from becoming legally
binding.’175
The effects and future of the panel’s interpretation in Russia - Traffic in
Transit176 case will thus remain uncertain. We should not overlook that the parties
agreed not to further submit the report to an appeal procedure and thus, the
report stems from the panel. Such a situation does not remove the report’s
binding effect, but it might cast a shadow on the panel`s interpretation, as in the
previous case-law177 the AB indicated that panels’ reports do not constitute
binding ‘subsequent practice’, as referred to in Art. 31 of the Vienna Convention.
This increases the risk that future panels or the AB will distort the ‘roadmap’
provided in the Russia - Traffic in Transit report.178
3.6 Table of the test
The three-pronged test adopted by the panel when assessing whether a state
can rely on the security exception of Art. XXI(b)(iii) of GATT in a given case, can
be envisaged as it follows in Table 1:
Table 1:
Type of
test
Part Article Examination Result
Objective
test
A Art. XXI(b)(iii)
of GATT –
‘war or other
emergency in
international
relations’
Can it be objectively said that
there exists a situation of: (i)
war; (ii) armed conflict, (iii)
latent armed conflict; (iv)
heightened tension or crisis; (v)
general instability or of (vi)
political conflict and (vi)
economic conflict?
If not, then
the
contracting
state
cannot rely
on security
exception
If yes,
apply B
B Art. XXI(b)(iii)
of GATT –
Is the measure objectively taken
during the war or the
If not, then
the
If yes,
apply C
174 See McDougall, supra note 170, at 1.
175 (https://www.wto.org/english/tratop_e/dispu_e/farwellspeech_peter_van_den_bossche
_e.htm) last visited (16-07-2019).
176 See Russia – Traffic in Transit, supra note 12
177 Appellate Body Report, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R,
WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, p. 97.
178 See Heath, supra note 96.
National Security Exceptions in the WTO A Carte Blanche for Protectionism? 33
‘taken in time
of’
emergency in international
relations?
contracting
state
cannot rely
on security
exception
Subjective
test I –
‘sliding-
scale’
approach
under the
good faith
principle
C Chapeau -
Art. XXI(b) of
GATT –
‘essential
security
interests’
Emergency
closer to
war or
breakdown
of law and
public order
– less
articulation
needed and
less
scrutiny by
the panel
Did the state
articulate its
genuine
security
interests, such
as protection of
its territory, its
population,
maintenance of
law and public
order, arising
from the
emergency in
international
relations
enough to
demonstrate
their veracity?
If not, then
the
contracting
state
cannot rely
on security
exception
If yes,
apply D
Emergency
closer to
tension or
crisis –
more
articulation
needed and
more
scrutiny by
the pane
Did the state
articulate its
genuine
security
interests such
as protection of
its territory and
its population,
maintenance of
law and public
order, arising
from the
emergency in
international
relations
enough to
demonstrate
their veracity?
Subjective
test II –
under the
good faith
principle
D Chapeau -
Art. XXI(b) of
GATT –
‘necessary for
the protection’
The measure must meet a
minimum requirement of
plausibility, i.e. it must not be
implausible as measure
protective of the claimed
interests
If not, then
the
contracting
state
cannot rely
on security
exception
If yes, the
state can
rely on
Art.
XXI(b)(iii)
of GATT
34 MIHAI IOACHIMESCU-VOINEA
References
I. Legislation
1.1. WTO Legislation
[1] Agreement on Safeguards, WTO Doc. LT/UR/A-1A/8 (1994)
[2] Agreement on Trade-Related Aspects of Intellectual Property Rights,
WTO Doc. LT/UR/A-1C/IP/1 (1994)
[3] General Agreement on Tariffs and Trade, WTO Doc. LT/UR/A-
1A/1/GATT/1 (1994)
[4] General Agreement on Tariffs and Trade, GATT Doc. LT/UR/A-
1A/1/GATT/2 (1947)
[5] General Agreement on Trade in Services, WTO Doc. LT/UR/A-1B/S/1
(1994).
[6] Marrakesh Agreement establishing the World Trade Organization, WTO
Doc. LT/UR/A/2 (1994)
[7] Understanding on Rules and Procedures Governing the Settlement of
Disputes, WTO Doc. LT/UR/A-2/DS/U/1 (1994)
1.2. EU Legislation
[8] Implementing Regulation (EU) 2019/159, EU Commission, OJ L 31/27
(2019)
[9] Implementing Regulation (EU) 2018/724, EU Commission OJ L 122/14
(2018)
[10] Notice of Initiation of a Safeguard Investigation, EU Commission OJ C
111 (2018)
[11] Recommendation Cybersecurity of 5G networks, EU Commission, EU
doc. C 2335 (2019).
1.3. US Legislation
[12] John S. McCain National Defense Authorization Act for Fiscal Year 2019,
US Public Law 115–232, Sec. 1261 (2018)
[13] S.2463 - BUILD Act of 2018, US Senate - 06/27/2018 Placed on Senate
Legislative Calendar under General Orders. Calendar No. 493
[14] US Trade Act of 1974, as amended, Public Law 93–618, (1974)
[15] US Trade Expansion Act of 1962, as amended, Public Law 87-794 (1962)
1.4. International Legislation
[16] Charter of the United Nations, UN Doc. 1 UNTS XVI (1945)
[17] Vienna Convention on the Law of Treaties, UN Doc. 18232 (1969)
[18] United Nations Convention on the Law of the Sea, UN Doc. 1833 UNTS
3 (1982)
National Security Exceptions in the WTO A Carte Blanche for Protectionism? 35
1.5. Other Legislation
[19] Federal Law of The Russian Federation, No. 281-FZ (2006)
[20] Foreign Investment Law of the People's Republic of China, adopted at
the Second Session of the 13th National People's Congress on March 15, 2019
[21] National Security Law of the People`s Republic of China (2015)
II. Case Law
2.1. WTO case law
(I) Appellate Body reports
[22] Canada – Measures Affecting the Export of Civilian Aircraft,
WT/DS70/AB/R, adopted 20 August 1999, DSR 1999: III, p. 1377
[23] Colombia – Measures Relating to the Importation of Textiles, Apparel
and Footwear, WT/DS461/AB/R and Add.1, adopted 22 June 2016, DSR 2016:
III, p. 1131
[24] European Communities – Measures Prohibiting the Importation and
Marketing of Seal Products, WT/DS400/AB/R / WT/DS401/AB/R, adopted 18
June 2014, DSR 2014: I, p. 7
[25] European Communities – Trade Description of Sardines,
WT/DS231/AB/R, adopted 23 October 2002, DSR 2002: VIII, p. 3359
[26] Indonesia – Safeguard on Certain Iron or Steel Products,
WT/DS490/AB/R, WT/DS496/AB/R, and Add.1, adopted 27 August 2018
[27] Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R,
WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, p.
97
[28] United States – Import Prohibition of Certain Shrimp and Shrimp
Products, WT/DS58/AB/R, adopted 6 November 1998, DSR 1998: VII, p. 2755
[29] United States – Measure Affecting Imports of Woven Wool Shirts and
Blouses from India, WT/DS33/AB/R, adopted 23 May 1997, and Corr.1, DSR
1997: I, p. 323
(II) Panel reports
[30] Chile – Price Band System and Safeguard Measures Relating to Certain
Agricultural Products, WT/DS207/R, adopted 23 October 2002, as modified by
Appellate Body Report WT/DS207AB/R, DSR 2002: VIII, p. 3127
[31] Russia – Measures Concerning Traffic in Transit, WT/DS512/R and
Add.1, adopted 26 April 2019 (not yet published)
[32] United States – Imports of sugar from Nicaragua, L/6053, not adopted
2.2. WTO reference cases
[33] EC, Australia, Canada – Trade restrictions affecting Argentina applied
for non-economic reasons, C/W/402 (1982)
36 MIHAI IOACHIMESCU-VOINEA
[34] EEC – Trade measures taken by the EC against the Socialist Federal
Republic of Yugoslavia, L/6948 (1992)
[35] Nicaragua — Measures Affecting Imports from Honduras and
Colombia, DS188 (2000)
[36] Peru – Prohibition of Czechoslovakian imports, L/2844 (1954)
[37] Russia — Measures Concerning Traffic in Transit, DS512 (2016).
[38] United Arab Emirates — Measures Relating to Trade in Goods and
Services, and Trade-Related Aspects of Intellectual Property Rights, DS526 (2017)
[39] United States — Certain Measures on Steel and Aluminium Products,
DS550 (Canada)
[40] United States — Certain Measures on Steel and Aluminium Products,
DS544 (China)
[41] United States — Certain Measures on Steel and Aluminium Products,
DS548 (EU)
[42] United States — Certain Measures on Steel and Aluminium Products,
DS547 (India)
[43] United States — Certain Measures on Steel and Aluminium Products,
DS551 (Mexico)
[44] United States — Certain Measures on Steel and Aluminium Products,
DS552 (Norway)
[45] United States — Certain Measures on Steel and Aluminium Products,
DS554 (Russia)
[46] United States — Certain Measures on Steel and Aluminium Products,
DS556 (Switzerland)
[47] United States — Certain Measures on Steel and Aluminium Products,
DS564 (Turkey)
[48] United States — Certain Measures Related to Renewable Energy, DS563
(2018)
[49] United States — Imports of sugar from Nicaragua, BISD/31S/67 (1983)
[50] United States — Issue of export licenses, CP.3/SR22-II/28 (1949)
[51] United States — Suspension of obligations between the US and
Czechoslovakia, CP.5/5-II/36 (1951)
[52] United States — The Cuban Liberty and Democratic Solidarity Act, DS38
(1996)
[53] United States — Trade measures affecting Nicaragua, L/6053 (1985)
2.3. Other case law
[54] South China Sea Arbitration, Philippines v China, Award, PCA Case No
2013-19, ICGJ 495 (2016)
National Security Exceptions in the WTO A Carte Blanche for Protectionism? 37
III. Literature
3.1. Books
[55] W. Diebold, The End of the ITO, 16th ed. (1975)
[56] G. Friedman, The next 100 years – A Forecast for the 21st Century (2009)
[57] E. Luttwak, The rise of China vs. the logic of strategy (2012)
[58] P. Van den Bossche, W. Zdouc, World Trade Organization: Text, Cases
and Materials, 4th ed. (2017)
3.2. Articles
[59] W. R. Adano, T. Dietz & K. Witsenburg, Climate change, violent conflict
and local institutions in Kenya’s drylands, 49 Journal of Peace Research (2012)
[60] R. P. Alford, The Self-Judging WTO Security Exception, 3 Utah Law
Review (2011)
[61] A. C. Alves, China's ‘Win-Win’ Cooperation: Unpacking the Impact of
Infrastructure-for-Resources Deals in Africa, 20 South African Journal of
International Affairs (2013)
[62] C. Balding, Huawei Technologies’ Links to Chinese State Security
Services By: Christopher Balding, Fulbright University Vietnam (2019)
[63] R. Bhala, National Security and International Trade Law: What the
GATT says and What the US Does, 19 University of Pennsylvania Journal of
International Economic Law (1998)
[64] R. Bonnan, The GATT Security Exception in a Dispute Resolution
Context: Necessity or Incompatibility? XIX Currents International Trade Law
Journal (2010)
[65] C. K. Butler & S. Gates, African range wars: Climate, conflict, and
property rights, 49 Journal of Peace Research (2012)
[66] K. H. Butts & B. Bankus, China’s Pursuit of Africa’s Natural Resources,
1-09 Collins Center Study (2009)
[67] W. 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
Journal of International Law (2001)
[68] S. Charnovitz, Grading Trump`s China Trade Strategy, George
Washington University Law School (2019)
[69] G. Csurgai, The Increasing Importance of Geoeconomics in Power
Rivalries in the Twenty-First Century, 23 Geopolitics (2018)
[70] S. Evenett, The Doha Round impasse: A graphical account, 9 The Review
of International Organization (2014)
[71] R. D. Fischer, Thomas J. Prusa, WTO Exceptions as Insurance, 11 Review
of International Economics (2003)
38 MIHAI IOACHIMESCU-VOINEA
[72] R. Floyd, Global climate security governance: a case of institutional and
ideational fragmentation, 15 Conflict, Security & Development (2015)
[73] N. P. Gleditsch, Whither the weather? Climate change and conflict, 49
Journal of Peace Research (2012)
[74] R. Haass, How a World Order Ends: And What Comes in Its Wake, 98
Foreign Affairs (2019)
[75] M. J. Hahn, Vital Interests and the Law of GATT: An analysis of GATT`s
Security Exception, 12 Michigan Journal of International Law (1991)
[76] L. Hansen & H. Nissenbaum, Digital Disaster, Cyber Security, and the
Copenhagen School, 53 International Studies Quarterly (2009)
[77] C. Harbulot, A study on economic warfare and associated problems,
Spanish Official Publications Catalogue (2014)
[78] J.B. Heath, The New National Security Challenge to the Economic Order
(forthcoming in the 129 Yale Law Journal)
[79] J. H. Jackson, World Trade Organization and the Law of GATT, 71
Colombia Law Review (1969)
[80] R. Kolb, Principles as Sources of International Law (With Special
Reference to Good Faith), 53 Netherlands International Law Review (2006).
[81] F. D. Kramer & R. J. Butler, Cybersecurity: Changing the Model, Atlantic
Council (2019)
[82] K. M. Lietzmann & G. D. Vest, NATO Environment and Security in an
International Context Report, Environmental Change & Security Project Report
(1999)
[83] M. Liu, The New Chinese Foreign Investment Law and Its Implication
on Foreign Investors, 38 Northwestern Journal of International Law & Business
(2018)
[84] E. Luttwak, From Geopolitics to Geo-Economics: Logic of Conflict,
Grammar of Commerce, 20 The National Interest (1990)
[85] R. McDougall, Crisis in the WTO: Restoring the WTO Dispute
Settlement Function Robert McDougall, Centre for International Governance
Innovation (2018)
[86] R. J. Neuwirth, Alexandr Svetlicinii, The Economic Sanctions over the
Ukraine Conflict and the WTO: ‘Catch-XXI’ and the Revival of the Debate on
Security Exceptions, 49 Journal of World Trade (2015)
[87] M. Pinchis-Paulsen, Trade Multilateralism and National Security:
Antinomies in the History of the International Trade Organization (not yet
published)
[88] S. Peng, Cybersecurity Threats and the WTO National Security
Exceptions, 18 Journal of International Economic Law (2015)
[89] D. Raess, W. Ren & P. Wagner, Chinese Commercially-Oriented
Financial Flows and UN Voting Realignment, University of Bern (2017)
National Security Exceptions in the WTO A Carte Blanche for Protectionism? 39
[90] S. Schill & R. Briese, ‘If the State Considers’: Self-Judging clauses in
international dispute settlement, 13 Max Planck Yearbook of United Nations Law
(2009)
[91] H. L. Scholemann, Stefan Ohlhoff, Constitutionalization and Dispute
Settlement in the WTO: National Security as an issue of Competence, 93
American Journal of International Law (1999)
[92] G. Shaffer, A Tragedy in the Making? The Decline of Law and the Return
of Power in International Trade Relations, 44 The Yale Journal of International
Law (2019)
[93] K. J. Vandevelde, The First Bilateral Investment Treaties: US Postwar
Friendship, Commerce, and Navigation Treaties, Oxford University Press (2017)
[94] A. Vihma, Geoeconomic Analysis and the Limits of Critical Geopolitics:
A New Engagement with Edward Luttwak, 23 Geopolitics (2018)
[95] T. Voon, The Security Exception in WTO Law: Entering a New Era, 113
AJIL Unbound (2019)
[96] M. Wigell & A. Vihma, Geopolitics Versus Geoeconomics - The Case of
Russia’s Geostrategy and Its Effects on the EU, 92 International Affairs (2016)
[97] C. Wilcox, A Charter for World Trade, The Macmillan Company 31
(1949)
[98] C. Wilcox, The Promise of the World Trade Charter, 27 Foreign Affairs
487 (1949)
[99] J. Y. Yoo, Dukgeun Ahn, Security Exceptions in the WTO System: Bridge
or Bottle-Neck for Trade and Security?, 19 Journal of International Economic Law
(2016)
3.3. WTO Documents
[100] Dispute Settlement Body Minutes, WTO Doc. WT/DSB/M/403
[101] First Written Submission by Russia, WT/DS512 (not publicly available)
[102] Notification on suspension of concessions and other obligations by EU,
WTO Doc. G/SG/N/12/EU/1 (2018)
[103] Request for the Establishment of a Panel by EU, WTO Doc.
WT/DS548/14 (2018)
[104] Request for the Establishment of a Panel by Ukraine, WTO Doc.
WT/DS512/3 (2017)
[105] Second Written Submission by Russia, WT/DS512 (not publicly
available)
[106] Third Party Written Submission by EU, WT/DS512 Ref. Ares
(2017)5434182 (2017)
[107] TPR Report Ukraine, WTO Doc. WT/TPR/G/334 (2016)
40 MIHAI IOACHIMESCU-VOINEA
3.4. UN Documents
[108] Report of the Sixth Committee, UN Doc. E/CONF.2/68, (1948)
[109] UN Resolution no. 71/205, UN Doc. A/71/484/Add.3 (2016)
[110] UN Resolution No. 68/262, UN Doc. A/RES/68/262 (2014)
[111] UN Resolution no. 2139, UN Doc. S/RES/2139 (2014)
[112] UN Verbatim Report, UN Doc. E/PC/T/A/PV/33 (1947)
3.5. Other Documents
[113] China and Regulatory Practices, CFIUS White Paper (2018)
[114] Denial Order, US Department of Commerce BIS 83 FR 17644 (2018)
[115] Entity List Decision, US Department of Commerce BIS 84 FR 29371
(2019)
[116] Entity List Decision, US Department of Commerce BIS 84 FR 22961
(2019)
[117] FDI Regulatory Restrictiveness Index 2016
[118] Geneva Proposals for an International Trade Charter, US Department of
State (1947)
[119] How China’s Economic Aggression Threatens the Technologies and
Intellectual Property of the United States and the World, White House Office of
Trade and Manufacturing Policy (2018)
[120] International Trade Organization (Havana Charter), UN Doc.
E/CONF.2/78 (1948)
[121] Investigative Report on the US National Security Issues Posed by
Chinese Telecommunications Companies Huawei and ZTE, U.S. House of
Representatives (2012)
[122] March 2019 Report, US Defense Manpower Data Center (2019)
[123] National Security Strategy, The White House (2017)
[124] National Security Strategy, The White House (2015)
[125] National Strategy for the Arctic Region, White House (2013)
[126] NATO Policy on Cyber Defence, Defending the networks (2011)
[127] Notice of Action, US Trade Representative 83 FR 28710 (2018)
[128] Notice of Action, US Trade Representative 84 FR 23983 (2018)
[129] Notice of Determination of Action, US Trade Representative 83 FR
14907 (2018)
[130] Notice of Proposed Rulemaking, US Department of Commerce BIS 83
FR 58201 (2018)
[131] Oxford English dictionary, Oxford University Press (2000)
[132] Proposals for Expansion of World Trade and Employment, 2411 US
Department of State (1945)
[133] Report on China`s Expanding Global Access, US Department of Defense
(2018)
National Security Exceptions in the WTO A Carte Blanche for Protectionism? 41
[134] Report on NATO and Cyber Defence Report, NATO Doc. 173 DSCFC 09
E bis (2009)
[135] Report on the Effect of Imports of Aluminium on the National Security,
US Department of Commerce (2018)
[136] Report on the Effect of Imports of Steel on the National Security, US
Department of Commerce (2018)
[137] Report on the Legal and Policy Frameworks Guiding the United States'
Use of Military Force and Related National Security Operations, White House
(2018)
[138] Superseding Order, US Department of Commerce BIS 83 FR 34825
(2018)
[139] US Presidential Memorandum, Presidential Doc. 83 FR 13099 (2018)
[140] US Presidential Order 13873, Presidential Doc. 84 FR 22689 (2019)
[141] US Presidential Proclamation 9740, Presidential Doc. 83 FR 20683 (2018)
[142] US Presidential Proclamation 9739, Presidential Doc. 83 FR 20677 (2018)
[143] US Presidential Proclamation 9704, Presidential Doc. 84 FR 23983 (2018)
[144] US Presidential Proclamation 9694, Presidential Doc. 83 FR 3553 (2018)
[145] US Presidential Proclamation 9693, Presidential Doc. 83 FR 3541 (2018)
[146] US Presidential Proclamation 9705, Presidential Doc. 83 FR 11625 (2018)
[147] 2019 Trade Policy Agenda and 2018 Annual Report, US Trade
Representative (2019)
IV. Websites
[148] https://www.bloomberg.com/graphics/2016-china-deals/
[149] https://www.china-briefing.com/news/us-china-trade-war-us-
products-affected/
[150] https://www.china-briefing.com/news/the-us-china-trade-war-a-
timeline/
[151] https://chinapower.csis.org/much-trade-transits-south-china-
sea/#easy-footnote-bottom-1-3073
[152] http://cimsec.org/chinas-nine-dashed-line-faces-renewed-
assault/13943
[153] https://data.worldbank.org/indicator/NY.GDP.MKTP.KD.ZG?end=2
018&locations=EU-US-CN&start=2000&view=chart
[154] https://eng.yidaiyilu.gov.cn/zchj/qwfb/86739.htm
[155] https://www.ft.com/content/ec9671ae-4cbb-11e9-bbc9-6917dce3dc62
[156] https://www.globalresearch.ca/america-has-been-at-war-93-of-the-
time-222-out-of-239-years-since-1776/5565946
[157] https://www.japantimes.co.jp/news/2018/12/10/business/japan-
sets-policy-will-block-huawei-zte-public-procurement-april/#.XImX-RNKj6A
42 MIHAI IOACHIMESCU-VOINEA
[158] https://www.piie.com/blogs/trade-investment-policy-watch/trump-
has-gotten-china-lower-its-tariffs-just-toward-everyone#_ftn5
[159] https://www.politico.com/f/?id=0000016b-a5a1-d241-adff-
fdf908e00001
[160] https://www.politico.eu/article/eu-and-china-break-ultimate-trade-
taboo-to-hit-back-at-trump/
[161] https://www.reuters.com/article/us-britain-huawei-tech/uk-
concludes-it-can-mitigate-risk-from-huawei-equipment-use-in-5g-ft-
idUSKCN1Q60NR
[162] https://www.reuters.com/article/us-huawei-europe-italy/italy-
denies-it-will-ban-huawei-zte-from-its-5g-plans-idUSKCN1PW0LV
[163] https://www.theguardian.com/cities/2019/jun/03/ransomware-
attacks-hackers-cities-baltimore
[164] https://www.theverge.com/2019/6/29/19870318/president-donald-
trump-china-huawei-lift-trade-ban-tariffs-trade-war
[165] https://www.visualcapitalist.com/u-s-military-personnel-
deployments-country/ https://www.businessinsider.nl/us-military-deploymen
ts-may-2017-5/?international=true&r=US
[166] https://worldtradelaw.typepad.com/ielpblog/2019/04/a-wtos-
kompetenz-kompetenz-moment.html
[167] https://worldtradelaw.typepad.com/ielpblog/2019/05/guest-post-
trade-security-and-stewardship-part-i-the-russia-transit-reports-vision-of-wto-
dispute-se.html
[168] https://worldtradelaw.typepad.com/ielpblog/2019/05/guest-post-
trade-security-and-stewardship-part-ii-making-legal-space-to-adjudicate-
security-matters.html
[169] https://worldtradelaw.typepad.com/ielpblog/2019/05/guest-post-
trade-security-and-stewardship-part-iii-wto-panels-as-factfinders-under-article-
xxi.html
[170] https://worldtradelaw.typepad.com/ielpblog/2019/05/guest-post-
trade-security-and-stewardship-part-iv-a-variable-framework-for-security-
governance.html
[171] https://worldtradelaw.typepad.com/ielpblog/2019/05/guest-post-
trade-security-and-stewardship-part-v-implications-for-international-economic-
law.html
[172] https://worldtradelaw.typepad.com/ielpblog/2019/04/the-russia-
traffic-in-transit-panel-report.html#comments
[173] https://www.wto.org/english/tratop_e/dispu_e/farwellspeech_peter_
van_den_bossche_e.htm
[174] https://www.yidaiyilu.gov.cn/wcm.files/upload/CMSydylgw/20170
6/201706200153032.pdf