to actions “taken in time of war or other
The competence to define the scope
arguments that deserve no necessity and
emergency in international relations,”
of unilateral action was kept in the realm
proportionality analysis at all (let alone
included in Article XXI(b)(iii), the panel
of law. The panel defined “emergency
that the panel specifically confirmed that,
conceived this requirement as a question
in international relations,” the relevant
according to the travaux preparatoires,
of timing. Once it is established that a
category in the case at stake, as referring to
Article XX and Article XXI “have a different
war or emergency exists, the respondent
war-like situations that go beyond simple
character”)30 and certainly cannot oppugn
only needs to prove that the measure was
political or economic differences and “give
the textbook evidence that anything the army
adopted during the war or emergency. This
rise to defence and military interests, or
may need (“from shoes to watches, radios to
is a purely technical question, which does
maintenance of law and public order
beef production”)31 is privileged under the
not involve even the most rudimentary
interests.”26 The panel established that “the
security exception.
necessity or “relatedness” analysis. It would
existence of an emergency in international
Second, the security exception must be
be difficult to imagine a more deferential
relations is an objective state of affairs,
used in good faith32 and Article XXI must
approach than exempting everything that was
[hence,] the determination of whether the
not be turned into a means of disguised
adopted during a period of war or emergency.
action was ‘taken in time of ’ an ‘emergency in
protectionism.
Applying this approach by analogy to Article
international relations’ under subparagraph
The obligation of good faith
XXI(b)(i)-(ii) of the GATT, national security
(iii) of Article XXI(b) is that of an objective
requires that Members not use the
may be used to restrict trade in any product
fact, subject to objective determination.”
exceptions in Article XXI as a means
that is relevant, indirectly and remotely,
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25
27
to circumvent their obligations
In sum, while the existence of the
All in all, there are two legal clogs that follow from the panel’s report: the definition of the scope of Article XXI(b) of the GAT T and the requirement of good faith.
privileged circumstances is subject to
—————————————————
multilateral trading system simply
“objective determinations,” member states
The panel noted that the room of
by re-labelling trade interests that it
have a blank cheque as to whether the
interpretation is more restricted as to the rest
had agreed to protect and promote
measure is necessary (that is, reasonably
of the categories of Article XXI(b) GATT, as
within the system, as “essential
related and proportionate) to protect the
they are specific and leave very little room to
security interests”, falling outside
public interest. The only requirement that
judicial construction.28 Concerning Article
the reach of that system.33
limits this discretion is the requirement of
XXI(b)(ii) GATT, which refers to measures
Unfortunately, a closer look at the
“veracity” in which member states must
“relating to” products relevant for military
analysis carried out by the panel reveals that
not refer to national security for purely
purposes, the panel made a reference to the
this requirement puts no meaningful check
protectionist purposes (a circumstance
interpretation of this term in Article XX
on member states’ protectionism-driven
intensely difficult to demonstrate).
GATT. At first glance, this may appear to
exercise of their prerogative. Although this
All in all, there are two legal clogs that
be promising, given that this term has been
excerpt may be conceived as an allusion
follow from the panel’s report: the definition
construed here as requiring a “close and
to Trump section 232 tariffs on steel and
of the scope of Article XXI(b) of the GATT
genuine relationship of ends and means,”
aluminum, the idea that the requirement
and the requirement of good faith. However,
which does involve some “relatedness”
of good faith is capable of screening out
a closer examination shows that both are
analysis. However, this is a rudimentary
disguised protectionism in the context of
feeble, if not token, confinements.
examination, which is meant to filter out
the security exception simply does not hold
for military purposes or is connected to fissionable materials. The panel’s textual, systematic, and historical analysis revealed that there was no warrant for a different interpretation of Article XXI(b) of the GATT.
29
52
Currents 24.2 2021
under the GATT 1994. A glaring example of this would be where a Member sought to release itself from the structure of “reciprocal and mutually advantageous arrangements” that constitutes the
