Akin Trade Lawyers Co-Author Article on GATT National Security Exemption

“The Conundrum of the Essential Security Exception: Can the WTO Resolve the GATT Article XXI Crisis and Save the Dispute Settlement Mechanism?,” an article by Akin international trade partners Stephen Kho and Yujin McNamara, counsel Sarah Kirwin and associate Brooke Davies, has been published under the auspices of Geneva Graduate Institute’s Centre for Trade and Economic Integration.

The article opens with the proposition “The World Trade Organization (WTO) is in an existential crisis.” and describes the steps that led to it, which started, the authors believe, when the United States began blocking appointments of new Appellate Body members. The article notes how resolution of disputes became harder to achieve, and member states began to take trade matters “into their own hands,” while ignoring their WTO obligations.

The authors note attempts to “resuscitate the faltering dispute settlement system,” stating that it is “easier said than done” because “the United States has seen to it that  a key sticking point in the negotiations has become the justiciability of Article XXI(b) of the General Agreement on Tariffs and Trade of 1994 (GATT).” Article XXI(b) allows member states to deviate legally from their trade obligations when necessary for protection of their “essential security interests.” They write, “As with the Appellate Body impasse, the United States stands largely alone in taking a hard-line position that Article XXI(b) must be wholly self-judging and thus non-justiciable under the WTO,” essentially determining for themselves whether to use this exception to commit WTO violations—a position with which most other member states disagree.

The authors state, “Given the current conundrum, this article argues that continued insistence by the United States of Article XXI(b)’s non-justiciability would be misguided.” and, in support of this argument, they analyze the “legal accuracy” of the U.S. position, look at Article XXI(b)’s negotiating history and review extant WTO jurisprudence.

The authors close by noting, “As demonstrated in this article, the U.S. interpretation of GATT Article XXI as wholly self-judging is unsupported by the text, context, object and purpose, and negotiating history of Article XXI, as well as state practice.  Following such an interpretation would give countries license to evade their WTO obligations under the guise of national security, a clearly undesirable outcome for all Members.”

To read the full article, click here.