The Security Exceptions: Article XXI

In one line

A member may set aside its trade obligations for essential security reasons, and until 2019 nobody knew whether a panel could review that claim at all.

In exam wording: Article XXI of GATT 1994 provides that nothing in the Agreement shall be construed to require a member to furnish information contrary to its essential security interests, to prevent a member from taking action it considers necessary for the protection of those interests in the circumstances listed, or to prevent action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.

What the article says

Article XXI(a): nothing requires a member to furnish information the disclosure of which it considers contrary to its essential security interests.

Article XXI(b): nothing prevents a member from taking any action which it considers necessary for the protection of its essential security interests, in three specified circumstances: (i) relating to fissionable materials or the materials from which they are derived; (ii) relating to the traffic in arms, ammunition and implements of war, and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment; and (iii) taken in time of war or other emergency in international relations.

Article XXI(c): nothing prevents action in pursuance of obligations under the United Nations Charter for the maintenance of international peace and security.

The problem the drafting creates

The words which it considers appear in paragraph (b) and nowhere else in GATT. For seventy years two readings competed.

The self-judging reading. The words qualify the whole of what follows, so a member's own assessment of what its essential security interests are, and of what is necessary to protect them, is final and unreviewable. On this reading a panel has no jurisdiction to examine an Article XXI claim at all.

The justiciable reading. The words qualify only necessary, so the member's judgment of necessity is respected, but the existence of one of the three listed circumstances, in particular a war or other emergency in international relations, is an objective fact for the panel.

Nobody knew, because nobody litigated it. GATT contracting parties invoked Article XXI rarely, and when they did the matter was settled or dropped rather than decided.

The case that settled it

Russia: Measures Concerning Traffic in Transit, WT/DS512/R, circulated 5 April 2019, adopted 26 April 2019. Facts. After 2014 Russia restricted road and rail transit from Ukraine across Russian territory to Kazakhstan and Kyrgyzstan. Ukraine complained under Article V and Article X; Russia invoked Article XXI(b)(iii) and contended that the panel had no jurisdiction to examine the claim at all. Held. Article XXI is justiciable. The words which it considers qualify the necessity of the action, not the existence of the circumstances in the subparagraphs, so whether a war or other emergency in international relations objectively exists is for the panel to determine; an emergency in international relations means a situation of armed conflict, latent armed conflict, heightened tension or crisis, or general instability engulfing or surrounding a State, and not merely political or economic difference. The invoking member must articulate its essential security interests sufficiently to allow an assessment of good faith, and the measures must not be so remote from those interests as to make the invocation implausible. On the facts, the situation since 2014 was an emergency in international relations and the measures were plausibly connected to it, so Russia succeeded. Why it matters: it is the first ruling on the security exception in seventy years, and it rejects the self-judging reading while accepting the defence.