The War on Trade: Applying the WTO Security Exceptions to Economic Security Measures

This article examines the efficacy of the WTO treaties’ security exception provisions in curbing abusive appeals to national security to justify otherwise impermissible trade measures. It specifically explores whether GATT Article XXI and its sister provisions establish objectively discernible prerequisite conditions for their invocation, how far Member discretion extends in defining “essential security interests,” and whether the WTO dispute system offers sufficiently objective legal standards to prevent abuse of the security exceptions. Building on existing scholarship, this article employs a comprehensive interpretive analysis of all available means under the Vienna Convention on the Law of Treaties (VCLT) and integrates not just the landmark Russia – Traffic in Transit report, but also the recent United States – Steel and Aluminum and United States – Origin Marking cases of December 2022. This interpretive exercise identifies a uniform analytical framework running through each WTO Panel report reviewing invocations of the security exceptions and applies that framework to critique the U.S. position on the issue. Under this interpretive framework, this article ultimately determines whether and to what extent the WTO security exceptions including GATT Article XXI(b)(iii) justify discriminatory and anti-competitive trade measures purportedly imposed in the name of “economic security.”