Article Xxi - Security Exceptions

Key Aspect → An expression of the intent to keep national security matters as far away from multilateral scrutiny as possible.

→ nothing in the GATT prevents a WTO Member from taking “any action which it considers necessary” to protect its “essential security interests”

→ arguably makes each WTO Member the sole judge of whether its trade-restrictive actions are justified.

ARTICLE XXI SECURITY EXCEPTIONS

QUESTION ARISES → what extent or degree can a country render itself unaccountable, whilst derogating from its WTO obligations in the name of ‘national security’.

→ Provision is limitless ( Open ended wording of the provision) → Concern- large scope of misuse

Literal interpretation: Usage of subjective terminology → “Nothing in this Agreement shall be construed to prevent any contracting part from taking any action which it considers necessary for the protection of its essential security interests”15

→ The usage of the phrase ‘it considers’, before the word ‘necessary’ suggests, by its plain and ordinary meaning, that the necessity of the circumstances surrounding the measure are to be determined by the country invoking the measure itself.16

Invocation of Article XXI under the WTO agreements → · a dispute settlement case from 1949 involving U.S. export licensing controls and Czechoslovakia;

→ · Ghana’s boycott of Portuguese goods in the 1960s; → · a U.S. trade embargo against Nicaragua in the 1980s; → · a WTO dispute between the United States and European Union over the Helms-Burton Act, which authorized civil lawsuits against foreign companies that dealt in property that Cuba had expropriated from U.S. citizens

SAFEGUARDS → ARTICLE 4 AND 5 OF DSU- Methodology to undertake resolution of disputes through Consultations, Good Offices, Conciliation and Mediation, which are to be attempted before the formation of a Panel.

→ ARTICLE 11 OF DSU -Panels should consult regularly with the par- ties to the dispute and give them adequate opportunity to develop a mutually satisfactry solution”