The Scope and Future of National Security Exception Clauses inGATT 1994

Abstract

National security is becoming a key rationale for expanding or restricting trade measures (Gladysz 2021). Article XXI of GATT 1994 was firstly regulated in GATT 1947 and carried over to the establishment of the WTO, seeking the balance between trade and non-trade concerns and enabling Members the right to circumvent WTO provisions on national security grounds. However, Article XXI has hardly ever been invoked during the seventy years until the Russian Transit Traffic case shattered the dormant provision in 2017. This paper will first discuss the problem of jurisdiction and analyze whether the Panel should reserve certain right of jurisdiction. It then turns to the heated topic of the standard of review to examine how the WTO has refined national security exceptions and prevented members from abusing these provisions to implement measures that violate international trade rules. Subsequently, it presents some concerns faced by national security exceptions and provide some recommendations in this regard.