The original General Agreement on Tariffs and Trade (GATT 1947) was written with a broadly worded national security exception. This national security exception was copied into the founding agreements of today’s World Trade Organization (WTO). The exception allows a contracting party, under certain specified circum-stances, to take “any action which it considers necessary for the protection of its essen-tial security interests” notwithstanding other WTO commitments.

Despite the national security exception’s potential as an almost total escape clause from WTO commitments, it was rarely invoked and even more rarely adjudicated. That is, until now. Over the past five years, a number of WTO members—including the United States—have invoked the national security exception as a defense to alleged violations of WTO commitments. Additionally, in 2019 and 2020, the WTO Dispute Settlement Body (DSB) interpreted the scope of the national security exception for the first time in two landmark decisions: Russia – Measures Concerning Traffic in Transit and Saudi Arabia – Measures Concerning the Protection of Intellectual Property.

This Note analyzes the Russia and Saudi Arabia decisions and explores what they mean for future applications of the national security exception in WTO law. It suggests that despite the common approach applied in the Russia and Saudi Arabia cases, the future direction of the WTO’s national security exception is far from clear. Within the Russia and Saudi Arabia decisions lie significant ambiguities that will condition both the future use and adjudication of the national security exception. This Note uses the United States’ invocation of the national security exception to defend its Section 232 steel and aluminum tariffs to demonstrate the variety of outcomes that could result from future application of the Russia/Saudi Arabia decisions. With the collision between national security and trade showing no signs of abating, navigating the jurisprudential ambiguities of the national security exception will be a critical task for the WTO.

Continue reading The National Security Exception in WTO Law: Emerging Jurisprudence and Future Direction