The full text of the article is available only in Russian.
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).
Alden E. (2018) Trump, China, and Steel Tariffs: The Day the WTO Died. Council on Foreign Relations, 9 March. Available at: https://www.cfr.org/blog/trump-china-and-steel-tariffs-day-wto-died (accessed: 25.04.2019).
Boklan D.S., Absaliamov V.V, Kurnosov Y.S. (2018) Are Restrictive Measures and Countermeasures Justifiable by WTO Security Exceptions: Objective or Subjective Approach? Moscow Journal of International Law, no.3, pp.18–29.
Van den Bossche P., Zdouc W. (2013) The Law and Policy of the World Trade Organization: Text, Cases, and Materials, 3rd ed., Cambridge: Cambridge University Press.
Cassimatis A.E. (2007) Human Rights Related Trade Measures under International Law: The Legality of Trade Measures Imposed in Response to Violations of Human Rights Obligations under General International Law, Leiden; Boston, MA: Martinus Nijhoff Publishers.
Footer M.E., Schmidt J., White N.D., Davies-Brihght L. (eds.) (2016) Security and International Law, Oxford; Portland, OR: Hart Publishing.
Hahn M.J. (1991) Vital Interests and the Law of GATT: An Analysis of GATT’s Security Exception. Michigan Journal of International Law, vol.12, no.3, pp.558–620.
Mitchell A.D. (2017) Sanctions and the World Trade Organization. In: Van den Herik L. (ed.) Research Handbook on UN Sanctions and International Law, Cheltenham; Northampton, MA: Edward Elgar Publishing, pp.283–303.
Moon W.J. (2012) Essential Security Interests in International Investment Agreements. Journal of International Economic Law, vol.15, no.2, pp.481–502.
Orol R. (2019) A Double Bind for the World Trade Organization. Brink – The Edge of Risk, 17 January. Available at: https://www.brinknews.com/a-double-bind-for-the-world-trade-organization/ (accessed: 25.04.2019).
Rachkov I. (2014) Ekonomicheskie sanktsii s tochki zreniya prava GATT/WTO [Economic sanctions in light of GATT/WTO law]. Mezhdunarodnoe pravosudie, vol.4, no.3, pp.93–113. (In Russian).
Schill S., Briese R. (2009) “If the State Considers”: Self-Judging Clauses in International Dispute Settlement. Max Planck Yearbook of United Nations Law, vol.13, pp.61–140.
Schloemann H.L., Ohlhoff S. (1993) “Constitutionalization” and Dispute Settlement in the WTO: National Security as an Issue of Competence. American Journal of International Law, vol.93, no.2, pp.424–451.
Moscow, Shchepkina str., 8
+7 (495) 608-69-59
+7 (495) 608-66-35