Authors: Daria Boklan, Maria Shaubert
Keywords: article XXI of the GATT; emergency in international relations; objective approach; security exceptions; subjective approach; WTO
The article aims at interpreting and analyzing the WTO security exceptions. Provisions of Article XXI(b)(iii) of the GATT relating to a situation emergency in international relations have been applied by a panel for the first time in GATT/WTO history in Russia – Measures Concerning Traffic in Transit case. The landmark decision contains important conclusions regarding the scope of this exception and reviewability of measures adopted thereunder. The article analyzes subjective and objective approaches towards interpretation of the WTO security exception, as well as at the approach of the Panel in Russia – Measures Concerning Traffic in Transit case. The article concludes that the position adopted by the Panel illustrates its attempt to strike a balance between two opposite views on whether measures adopted under the security exception can be reviewed. On the one hand, the decision clarifies a number of previously disputed issues on the WTO security exception’s interpretation. On the other hand, its language is ambiguous relation to several important issues, which creates a risk of potential abuses. The article further concludes that, relying on the principle of effective interpretation that is well established in the WTO practice, the Panel established a four-tier test for the purposes of Article XXI(b)(iii). Pursuant to this test, measures adopted thereunder must be consistent with the following criteria: chronological criterion, the criterion that there be an emergency in international relations, the criterion requiring the asserted security interests to be essential, as well as the criterion that there be a nexus between the adopted measures and their alleged purpose. The article indicates that the Panel’s attempt to balance security interests of states with their obligations under the WTO resulted in application of a combined approach: when interpreting paragraph (iii) of Article XXI(b) of the GATT the Panel used objective approach, whereas under the chapeau of Article XXI(b) it used subjective approach.
About the authors: Daria Boklan – Doctor of Sciences in Law, Professor, Faculty of Law, Higher School of Economics, Moscow, Russia; Maria Shaubert – Research trainee, Scientific and Educational Laboratory for Studies on Protection of State Interests under Economic Sanctions, Faculty of Law, Higher School of Economics, Moscow, Russia.
Citation: Boklan D., Shaubert M. (2019) Rossiya – Mery, svyazannye s tranzitom gruzov: istoricheskiy doklad Treteyskoy gruppy Organa po razresheniyu sporov VTO [Russian Federation – Measures concerning traffic in transit case: WTO Dispute Settlement Body Panel’s historic report]. Mezhdunarodnoe pravosudie, vol.9, no.2, pp.20–30. (In Russian).
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