The security exception in WTO law: Entering a new era

Abstract

For seventy years, the security exception in the multilateral trade regime has mostly lain dormant. The exception first appeared in the General Agreement on Tariffs and Trade 1947 (GATT 1947), before being incorporated in the General Agreement on Tariffs and Trade 1994 (GATT 1994) upon the creation of the World Trade Organization (WTO). However, security exceptions also exist in several other WTO provisions, including the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the General Agreement on Trade in Services (GATS). Until recently, perhaps through a combination of WTO member restraint and fortuitous circumstances, WTO panels have not had to make a definitive ruling on the meaning and scope of these exceptions. Yet, suddenly, the security exception lies at the center of multiple explosive disputes, posing a potential threat to the WTO’s very existence. The text and history of the security exception reveal a longstanding recognition among GATT contracting parties, and now WTO members, of the highly sensitive nature of this exception. Members have traditionally refrained from bringing legal challenges against security-based measures and from invoking the security exception as a defense. Current disputes involving not only recent tariffs imposed by the United States but also other trade restrictions imposed by the United Arab Emirates (UAE) and Russia break with this culture of restraint, raising the question of the extent to which the security exception is “self-judging.” Rather than forcing a WTO panel to rule on this contentious question, WTO members should collaborate more generally to resolve escalating challenges to the international trading system.