Interpreting Essential Security Exceptions in WTO Law in View of Economic Security Interests

Weiß, Wolfgang

doi:10.1007/978-3-030-34588-4_12

Wolfgang Weiß⁷

Part of the book series: European Yearbook of International Economic Law ((Spec. Issue))

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Abstract

After the invocation of security exceptions became more common, the first panel report ever on how to apply them has recently been issued in the Russia—Measures Concerning Traffic in Transit case. While this panel addressed the application of the security exception in a situation of threat to international peace and security, the question must be raised whether its approach also applies to the invocation of security exceptions for economic reasons. In this context, the present chapter focuses on the methodical preliminaries to applying security exceptions: Its application in WTO dispute settlement does not only prompt the question of the jurisdiction of WTO panels and the Appellate Body, but also pertains to the issues of standard of proof and standard of review. A related methodical issue concerns the feasibility of the expansive interpretive approach applied to the general exceptions to the security exception. Reading it in the same tune runs the risk of nullifying the concept of multilateral trade regulation altogether, even more so as the security exceptions miss the usual safeguard against abuse, i.e. the requirements of the general exceptions’ chapeau. The lack of such safety valve confirms that security exceptions are of a different character compared to other exceptions. This difference, however, may be difficult to maintain if security exceptions are also used to defend economic security interests. Finally, the application of security exceptions may—as debated with regard to other WTO exceptions—be subject to an inherent limitation against exterritorial application, which would restrain its scope of application in cases in which security measures against a third country intend to affect also the trade of WTO Members, and could become relevant in assessing US sanctions against Iran.

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Notes

1.
See the chapter by Wolfgang Weiß in this volume; Tania Voon, ‘Can International Trade Law Recover? Security Exception in WTO Law’, (2019) 113 AJIL Unbound p. 45, 46-47; Geraldo Vidigal, ‘WTO Adjudication and the Security Exception’, (2019) 46 Legal Issues of Economic Integration p. 203, 204 et seq. The WTO cases are listed there in fn. 8 to 10.
2.
The debates about the security exception in GATT 1947 and WTO bodies are reviewed comprehensively in the Appendix to the panel report WT/DS512/R, Russia – Measures Concerning Traffic in Transit. For a thorough review of the genesis of the GATT security exception see Mona Pinchis-Paulsen, ‘Trade Multilateralism and U.S. National Security’, forthcoming (2020) 41 Michigan Journal of International Law, https://papers.ssrn.com/ sol3/papers.cfm?abstract_id=3353426; for GATT and WTO practice insofar see also Shin-yi Peng, ‘Cybersecurity Threats and the WTO National Security Exceptions’ (2015) 18 Journal of International Economic Law p. 449, 459 et seq.
3.
WT/DS38 - US – The Cuban Liberty and Democratic Solidarity Act.
4.
See the list of GATT and WTO disputes on Article XXI GATT in Peng, supra footnote 2 at 460. The GATT panel in US- Sugar Quota, L/5607, para. 4.1 did not utter on Article XXI GATT as the respondent, the US, had not defended its measure, even though the reduction of Nicaragua’s sugar quota was motivated by the US attempt to reduce financing for Nicaragua’s military. The US had not invoked Article XXI GATT. Later, in 1985, they invoked Article XXI GATT as justification for a complete import and export embargo on Nicaragua. The unadopted panel report in this dispute, however, could not examine Article XXI GATT as the GATT Council had made a carve-out from its terms of reference, GATT panel report in US – Nicaraguan Trade, L/6053, para. 5.3.
5.
WT/DS512/R.
6.
See Brandon Murrill, ‘The “National Security Exception” and the World Trade Organization’, Congressional Research Service, LSB10223, p. 4 (https://fas.org/sgp/crs/row/LSB10223.pdf).
7.
WT/DS512/R, para. 7.102. According to Geraldo Vidigal, supra footnote 1 at 215, it was only the necessity requirement of Article XXI lit. b) chapeau which was left to the full discretion of the WTO Members.
8.
For a thorough analysis of the panel report WT/DS512/R see Geraldo Vidigal, supra footnote 1 at 205 et seq.
9.
See the Resolutions of the UN General Assembly, A/Res/71/205 and A/Res/73/194.
10.
For more on this see the chapter by Wolfgang Weiß in this volume. Attempts at circumventing Article XXI GATT by assessing the US measures as safeguards are not feasible as the US explicitly invoked Article XXI GATT, see also Tania Voon, supra footnote 1, at 49.
11.
Even in situations of traditional international conflict, the invocation of security exceptions engenders a sincere confrontation within the WTO system, as it might imply a carve-out from the legalization of trade relations brought about by the WTO and its dispute settlement system, and might mean a return to ‘power-oriented techniques’ also for the settling of trade disputes. See Mona Pinchis-Paulsen, supra footnote 2 at 4 ff.
12.
For the latter see the presidential proclamation regarding imports of automobiles and automobile parts which reads in para. 2: “The rapid application of commercial breakthroughs in automobile technology is necessary for the United States to retain competitive military advantage and meet new defense requirements. Important innovations are occurring in the areas of engine and powertrain technology, electrification, lightweighting, advanced connectivity, and autonomous driving. The United States defense industrial base depends on the American-owned automotive sector for the development of technologies that are essential to maintaining our military superiority. 3. Thus, the Secretary found that American-owned automotive R&D and manufacturing are vital to national security. Yet, increases in imports of automobiles and automobile parts, combined with other circumstances, have over the past three decades given foreign-owned producers a competitive advantage over American-owned producers”
(https://www.whitehouse.gov/presidential-actions/adjusting-imports-automobiles-automobile-parts-united-states/).
13.
See Congressional Research Service, Section 232 Investigations: Overview and Issues for Congress (April 2019), R45249, p. 23 f and the US position shown in panel, WT/DS512/R, para. 7.51 - Russia – Measures Concerning Traffic in Transit.
14.
Gustaaf Geeraerts and Weiping Huang, ‘The Economic Security Dimension of the EU China Relationship’, in Emil Kirchner, Thomas Christiansen and Han Dorussen (eds), Security Relations between China and the European Union (Cambridge University Press 2016) p. 187, 187-189.
15.
J. Benton Heath, ‘The New National Security Challenge to the Economic Order’, forthcoming (2020) 129 Yale Law Journal, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3361107, p. 29; Anthea Roberts, Henrique Choer and Victor Ferguson, The Geoeconomic World Order, LAWFARE blog, https://www.lawfareblog.com/ geoeconomic-world-order.
16.
J Benton Heath, supra footnote 15 at 30.
17.
See Congressional Research Service, Section 232 Auto Investigation, IF10971, 2 (https://fas.org/sgp/crs/misc/ IF10971.pdf).
18.
J Benton Heath, supra footnote 15 at 31 f.
19.
See Wolfgang Weiß, WTO Law and Domestic Regulation (Beck Hart Nomos Publishing 2019) p. 40 ff.
20.
See Section 1. (a) (ii) (C) Executive Order on Imposing Sanctions with Respect to Iran,
https://www.whitehouse.gov/presidential-actions/executive-order-imposing-sanctions-respect-iran/.
21.
For sanctions against the Chinese company Zhuhai Zhenrong Co. Ltd see the press statement by the US Department of State, https://www.state.gov/the-united-states-to-impose-sanctions-on-chinese-firm-zhuhai-zhenrong-company-limited-for-purchasing-oil-from-iran/. The company is now on the US sanctions list https://sanctionssearch.ofac.treas.gov/Details.aspx?id=7770.
22.
See in detail J Benton Heath, supra footnote 15 at 31 et seq.
23.
The panel carefully examined whether the reference to the WTO Member’s assessment refers only to necessity, or includes the essential security interest, or even all elements of Article XXI lit. b) GATT, see WT/DS512/R, para 7.63. It finally opined that the requirements of the subparagraphs i) to iii) are subject to an objective control by a panel, whereas the definition of the requirements of the chapeau of Article XXI lit b) GATT (necessity, essential interest) are left to the WTO Members discretion, but subject to a plausibility control, see ibid. para 7.82, 7.100, 7.131 et seq.
24.
See the US argument reflected in panel, WT/DS512/R, para 7.103, fn. 183; J Benton Heath, supra footnote 15 at 34 f.
25.
For this statement see the Appendix to panel report, WT/DS512/R, para 1.30.
26.
Panel, WT/DS512/R, para 7.80 ff - Russia – Measures Concerning Traffic in Transit. See also Shin-yi Peng, supra footnote 2 at 459 et seq.
27.
Panel, WT/DS512/R, para 7.98.
28.
Appendix to panel report, WT/DS512/R, para 1.11 et seq.
29.
Ibid. para 1.18-1.19.
30.
Ibid. para 1.20-1.21.
31.
Panel, WT/DS512/R, para. 7.81.
32.
Cf. J Benton Heath, supra footnote 15 at 45.
33.
Panel, WT/DS512/R, para 7.66, 7.71, 7.76, 7.111.
34.
Panel, WT/DS512/R, para 7.75.
35.
Panel, WT/DS512/R, paras 7.101, 7.135. The type of emergency, however, steers the standard of proof required for the WTO Member’s articulation of essential security interests, see ibid. para. 7.135. For more on this below.
36.
See Appellate Body, WT/DS26/AB/R, WT/DS48/AB/R, para 104 – EC – Measures Concerning Meat and Meat Products (Hormones); WT/DS231/AB/R, para 272 - EC – Trade Description of Sardines; Wolfgang Weiß, supra footnote 19 at 230 et seq, 240 et seq. Things have been different in pre-WTO times, see ibid. p. 73-74.
37.
Asif Qureshi, Interpreting WTO Agreements (2^nd edition, Cambridge University Press 2015) p. 175.
38.
Cf. WT/DS2/R - US- Gasoline and WT/DS58/R - US-Shrimp.
39.
Panel, WT/DS400/R, WT/DS401/R, para 7.419 - EC – Seal Products.
40.
See panel, WT/DS285/R, para 6.486-487; Appellate Body, WT/DS285/AB/R, para 299 – US – Gambling.
41.
Panel, WT/DS285/R, para 6.461 – US - Gambling.
42.
For criticism of this approach cf. Nicholas Diebold, ‘The Morals and Order Exceptions in WTO Law’ (2008) JIEL p. 43 at 51, for defense of the pluralist attitude see Robert Howse, Joanna Langille and Katie Sykes, ‘Pluralism in Practice’ (2015) Geo. Wash. Int’l L.Rev p. 81 at 96, 144 et seq.
43.
See Petros Mavroidis, Trade in Goods (2^nd edition, Oxford University Press 2012) p. 332-3; Nicola Wenzel in Rüdiger Wolfrum, Peter-Tobias Stoll and Holger Hestermeyer (eds), WTO - Trade in Goods (Martinus Nijhoff Publishers 2011), Article XX GATT, para 2, p. 480.
44.
Panel, WT/DS363/R, para 7.762-3 - China – Publications and Audiovisual Products.
45.
Panel, WT/DS363/R, para 7.760 - China – Publications and Audiovisual Products. The Appellate Body, WT/DS363/AB/R, para 243 did not utter on this, as this had not been appealed. The Appellate Body denoted the conclusion of the panel insofar as assumption: “The Panel assumed that each of the types of prohibited content in China’s measures could, if it were brought into China, have a negative impact on ‘public morals’” (emphasis added). This formulation used by the Appellate Body was seen to express reservations as to the legal validity of the panel’s statements, see Paola Conconi and Joost Pauwelyn, ‘Trading Cultures: Appellate Body Report on China – Audiovisuals’ (2011) WTRev p. 95 at 113.
46.
Appellate Body, WT/DS400/AB/R, WT/DS401/AB/R, para 5.199 et seq – EU – Seal Products. See also Robert Howse, Joanna Langille and Katie Sykes, supra footnote 42 at 144-145; Mitsuo Matsushita, Thomas Schoenbaum, Petros Mavroidis and Michael Hahn, The World Trade Organization (3^rd edition, Oxford University Press 2015) p. 728 et seq.
47.
This term was interpreted quite extensively, as the Appellate Body opposed an interpretation that would require a measure to secure certainty of compliance or the use of coercion, Appellate Body, WT/DS308/AB/R, para 74 – Mexico – Tax Measures on Soft Drinks and other Beverages.
48.
Panel, WT/DS161, 169/R, para 655 - Korea - Measures Affecting Imports of Fresh, Chilled and Frozen Beef.
49.
Appellate Body, WT/DS161, 169/AB/R, para 162 - Korea - Measures Affecting Imports of Fresh, Chilled and Frozen Beef; WT/DS456/AB/R, para 5.140 et seq – India – Certain Measures relating to Solar Cells and Solar Modules.
50.
Panel, WT/DS285/R, para 6.540 – US – Gambling.
51.
Cf. Tamara Perisin, Free Movement of Goods and Limits of Regulatory Autonomy in the EU and WTO (Asser Press 2008) p. 193.
52.
Wolfgang Weiß, ‘Security Council Powers and the Exigencies of Justice after War’ (2008) 12 Max Planck Yearbook of UN Law p. 44, 58 et seq.; Shin-yi Peng, supra footnote 2 at 449.
53.
J Benton Heath, supra footnote 15 at 54-55.
54.
Panel, WT/DS512/R, para 7.74-7.75.
55.
Panel, WT/DS512/R, para 7.135.
56.
Panel, WT/DS512/R, para 7.136.
57.
Panel, WT/DS512/R, para 7.135, criticized by J Benton Heath, supra footnote 15 at 56.
58.
WT/DS512/R, para 7.75, 7.81.
59.
See the quote in panel, WT/DS512/R, para 7.92 (emphasis in original).
60.
Panel, WT/DS512/R, para 7.133, with the quote referring to the third recital of the WTO Agreement preamble, and to the second recital of the GATT preamble.
61.
With regard to the TBT Agreement see the sixth recital of its preamble.
62.
See Wolfgang Weiß, supra footnote 19 at 236-237, 272 ff.
63.
See Wolfgang Weiß, supra footnote 19 at 234-235.
64.
Panel, WT/DS512/R, para 7.98.
65.
See also Michael Hahn, Vital Interests and the Law of GATT: An Analysis of GATT’s Security Exception (1991) Michigan Journal of International Law p. 558, 580. Admittedly, new security threats may be lasting and even permanent instead of merely temporal, see J Benton Heath, supra footnote 15 at 26-27.
66.
Cf. again J Benton Heath, supra footnote 15 at 11 et seq.
67.
See J Benton Heath, supra footnote 15 at 56, in fn. 252.
68.
According to the panel, WT/DS512/R, para 7.135, essential security interests means “defence or military interests, or maintenance of law and public order”.
69.
An expansive interpretation might be rejected, as it would undermine the economic interdependence intended by GATT rules; unwanted, unforeseen security-related consequences of globalized trade may not be seen as covered by Article XXI GATT, see Michael Hahn, supra footnote 65 at 581 et seq.
70.
See panel, WT/DS512/R, para 7.119-7.125.
71.
Panel, WT/DS512/R, para 7.98.
72.
See again panel, WT/DS512/R, para 7.101.
73.
Para 7.131 et seq.
74.
Panel, WT/DS512/R, para 7.136, 7.137.
75.
Panel, WT/DS512/R, para 7.135.
76.
Ibid. 7.138.
77.
Ibid. 7.139.
78.
See paras 7.108, 7.146-7.147.
79.
Joachim Ahman, Trade, Health, and the Burden of Proof in WTO Law (Wolters Kluwer 2012) p. 21 et seq; Caroline Foster, Science and the Precautionary Principle in International Courts and Tribunals (Cambridge University Press 2011) p. 223 et seq; Matthias Oesch, Standards of Review in WTO Dispute Resolution (Oxford University Press 2003) p. 167 et seq; Joost Pauwelyn, ‘Evidence, Proof, and Persuasion in WTO Dispute Settlement’ (1998) JIEL p. 227 at 234 et seq.
80.
Michelle Grando, Evidence, Proof, and Fact-Finding in WTO Dispute Settlement (Oxford University Press, 2009) p. 86 et seq; Gene Grossmann, Henrik Horn and Petros Mavroidis (eds), Legal and Economic Principles of World Trade Law: National Treatment (Cambridge University Press, 2013) p. 85.
81.
See Appellate Body, WT/DS33/AB/R, para 42 - US – Measures Affecting Imports of Woven Wool Shirts and Blouses from India; WT/DS231/AB/R, para 157 – US – Countervailing Duties on Certain Corrosion-Resistant Carbon Steel; WT/DS231/AB/R, para 281 – EC – Sardines.
82.
Matthias Oesch, supra footnote 79 at 169 et seq.
83.
Para 7.132.
84.
Para 7.138.
85.
Marion Panizzon, Good Faith in the Jurisprudence of the WTO (Hart 2006).
86.
Eric De Brabandere and Isabelle van Damme, in Andrew Mitchell, M Sornarajah and Tania Voon (eds) Good Faith and International Economic Law (Oxford University Press 2015) p. 37 at 38, 57.
87.
Appellate Body, WT/DS26, 48/AB/R, para 115 – EC - Hormones (as regards the SPS Agreement); see also Ross Becroft, The Standard of Review in WTO Dispute Settlement (Edward Elgar, 2012), 66; Jan Bohanes and Nicolas Lockhart, ‘Standard of Review in WTO Law’ in Daniel Bethlehem, Donald McRae, Rodney Neufeld and Isabelle van Damme (eds), The Oxford Handbook of International Trade Law (Oxford University Press 2009) p. 378 at 383-4; Lukasz Gruszczynski, ‘Standard of Review of Health and Environmental Regulations by WTO Panels’ in Geert van Calster and Denise Prévost (eds), Research Handbook on Environment, Health and the WTO (Edward Elgar, 2013) p. 731 at 733 et seq; Michael Ioannidis, ‘Beyond the Standard of Review’ in Lukasz Gruszczynski and Wouter Werner (eds), Deference in International Courts and Tribunals (Oxford University Press, 2014) p. 91 at 92 et seq.
88.
Wolfgang Weiß, supra footnote 19 at 382 et seq. Admittedly, the Appellate Body derives standard of review conceptions from Article 11 DSU, but does so in a very genuine, original way, see Marion Panizzon, supra footnote 85 at 335 et seq, 353-355.
89.
See Appellate Body, WT/DS26, 48/AB/R, para 110 et seq, 117 - EC – Hormones; panel, WT/DS192/R, para 7.32 – US – Traditional Safeguard Measure on Combed Cotton Yarn from Pakistan.
90.
See again panel, WT/DS512/R, para 7.135.
91.
For more detail see Wolfgang Weiß, supra footnote 19 at 259 et seq.
92.
In the words of Geraldo Vidigal, supra footnote 1 at 215 the measures must have “a connection to the essential security interest … so that they can plausibly be asserted to have been taken” for their protection.
93.
WT/DS512/R, para 7.101.
94.
For all of this see panel, WT/DS512/R, para 7.98, 7.101, 7.119-7.125.
95.
Panel, WT/DS512/R, para 7.122, fn. 203, 204, referring to UN GA resolutions.
96.
See Appellate Body, WT/DS308/AB/R, paras 69-70, 75 – Mexico – Tax Measures on Soft Drinks and other Beverages.
97.
GATT panel, DS29/R, para 5.26 et seq – US Restrictions on Imports of Tuna (EEC); for more references see Steve Charnovitz, ‘The WTO’s Environmental Progress’ (2007) JIEL p. 685 at 695, fn 50.
98.
Appellate Body, WT/DS58/AB/R, para 121 et seq, 133 – US – Import Prohibition of Certain Shrimp and Shrimp Products. The Appellate Body did not pass upon this question, but instead referred to the fact that the species to be protected by the US measure migrate waters subject also to the US jurisdiction.
99.
Panel, WT/DS246/R, para 7.210 - EC – Conditions for the Granting of Tariff Preferences to Developing Countries: “the policy reflected in the Drug Arrangements is not one designed for the purpose of protecting human life or health in the European Communities and, therefore, the Drug Arrangements are not a measure for the purpose of protecting human life or health under Article XX(b)“. On appeal, the Appellate Body did not address this as it did not need to rule on whether the EC measures violates Article I GATT, see WT/DS246/AB/R, para 174 et seq, 190.
100.
See panel, WT/DS285/R, para 6.463 – US – Gambling („Article XIV(a) must be aimed at protecting the interests of the people within a community or a nation” (emphasis in original)). Similarly Nicola Wenzel in Rüdiger Wolfrum, Peter-Tobias Stoll and Holger Hestermeyer, supra footnote 43, at para 14, 16, p. 487-8. According to him, production related trade restrictions like the requirement to provide certain social standards are not covered by Article XX lit. a) GATT, with the exception of moral standards also binding for the exporting Member as well.
101.
Panel, WT/DS58/R, para 7.52 - US – Import Prohibition of Certain Shrimp and Shrimp Products. The reason for this was the panel’s view that “environmental issues at stake in this case should be evaluated to a large degree in light of local and regional conditions. They also suggest that conservation measures should be adapted, inter alia, to the environmental, social and economic conditions prevailing where they are to be applied”.
102.
For a critique, see Wolfgang Weiß, supra footnote 19 at 42 et seq.

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Weiß, W. (2020). Interpreting Essential Security Exceptions in WTO Law in View of Economic Security Interests. In: Weiß, W., Furculita, C. (eds) Global Politics and EU Trade Policy. European Yearbook of International Economic Law(). Springer, Cham. https://doi.org/10.1007/978-3-030-34588-4_12

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