The Use and Abuse of the National Security Exception under Article XXI(b)(iii) of the GATT 1994

Economic nationalism and anti-globalist unilateralism have been on the rise in recent years. The most obvious and consequential examples of this trend are the trade policy measures taken by the United States which undermine the rules-based multilateral trading system. Among these measures, one type stands out as being particularly troublesome, namely trade restrictive measures allegedly taken for the protection of national security. Other WTO Members have in recent years also taken trade restrictive measures which they sought or seek to justify on national security grounds. Whereas for 70 years, first GATT Contracting Parties and then WTO Members showed much self-restraint in invoking national security as a justification for trade restrictive measures, such self-restraint now seems a thing of the past. The invocation of the national security exception, in particular the national security exception under Article XXI of the General Agreement on Tariffs and Trade 1994, has proliferated. Against this background, this paper explores the nature and the scope of the national security exception under Article XXI, and examines the role the WTO, and in particular its dispute settlement system, can play in containing the abuse of this exception.

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