Academic literature on the topic 'WTO general and security exceptions'

For seventy years, the security exception in the multilateral trade regime has mostly lain dormant. The exception first appeared in the General Agreement on Tariffs and Trade 1947 (GATT 1947), before being incorporated in the General Agreement on Tariffs and Trade 1994 (GATT 1994) upon the creation of the World Trade Organization (WTO). However, security exceptions also exist in several other WTO provisions, including the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the General Agreement on Trade in Services (GATS). Until recently, perhaps through a combination of WTO member restraint and fortuitous circumstances, WTO panels have not had to make a definitive ruling on the meaning and scope of these exceptions. Yet, suddenly, the security exception lies at the center of multiple explosive disputes, posing a potential threat to the WTO's very existence.

As WTO members increasingly invoke security exceptions and the first panel report insofar was issued in Russia – Traffic in Transit, the methodical and procedural preliminaries of their adjudication must be reassessed. The preliminaries pertain to justiciability and to the proper interpretive approach for their vague terms that seemingly imply considerable discretion to WTO members, all the more as general exceptions are subject to expansive interpretation. Reading security exceptions expansively appears not viable as they miss the usual safeguard against abuse (i.e. the chapeau of Articles XX GATT/XIV GATS). This lack of safeguards rather suggests caution in conceptualising them expansively, as do the systemic consequences of recent attempts to re-politicize security exceptions which run the risk of nullifying the concept of multilateral trade regulation altogether. Furthermore, the appropriate standards of review and proof must be explored which have to strike a balance between control and deference in national security.

Governments are adopting various measures to address cybersecurity-related concerns. Some of these measures restrict cross-border flows of digital services/data, and thus inconsistent with obligations in trade agreements such as General Agreement on Trade in Services (‘GATS’). However, certain governments might argue that such measures are justified under the GATS security exception (Art. XIVbis) as they protect national security. This article investigates whether GATS Art. XIVbis is relevant in justifying cybersecurity measures and its potential impact on cybersecurity governance. It argues that GATS Art. XIVbis has limited relevance, and is potentially problematic, when used in justifying majority of cybersecurity measures. First, a large majority of cybersecurity measures do not fall within the limited set of exceptional circumstances listed in GATS Art. XIVbis. Further, in applying this exception to cybersecurity measures, WTO Panels will be unfairly forced to balance trade and security interests in an environment of political, technological and policy uncertainty. Given these practical limitations and the normative boundaries of GATS Art. XIVbis, countries must avoid casually relying upon security exceptions as a basis for adopting/implementing unilateral measures on cybersecurity, but rather engage in meaningful cyber-diplomacy and regulatory cooperation mechanisms to resolve their differences on cybersecurity governance. cybersecurity, GATS, WTO law, security exception, digital trade, internet governance,national security, cyberspace

The European Community (EC) has recently announced its decision to begin dispute-resolution procedures in the World Trade Organization (WTO) against the United States (US) because of the latter's passage of the so-called ‘Helms-Burton’ law, which tightens the sanctions against Cuba by means of extraterritorial application. This will, in all probability, offer the WTO an ideal opportunity to define the limits of the General Agreement on Tariffs and Trade's (GATT) security exception. The security exception, contained in GATT Article XXI, is also included in other agreements annexed to the Agreement establishing the World Trade Organization (WTO Agreement), such as the General Agreement on Trade in Services (GATS) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). It provides an exception from all GATT (as well as GATS and TRIPs) obligations, including the all-important ‘most-favoured-nation’ non-discrimination rule. The security interests at issue must be those of a political, rather than an economic, nature. It should be noted that because there is no human rights and democracy exception to the GATT or other agreements annexed to the WTO Agreement, trade restrictions that are based either in whole or in part on these concerns, such as the measures against Cuba, are usually justified on the basis of the security exception.

Today, there are an unprecedented number of disputes at the World Trade Organization (“WTO”) involving national security. The dramatic rise in trade disputes involving national security has resuscitated debate over the degree of discretion afforded to WTO Members as to when and how to invoke Article XXI, the Security Exception, of the General Agreement on Tariffs and Trade (“GATT”), with binding effect. The goal of this article is to shed light on contemporary questions and concerns involving national security and international trade, particularly questions involving the appropriate invocation of Article XXI GATT, through careful attention to the article’s historical context. The article elucidates the diverse strategic and economic considerations that shaped the meaning of U.S. national security interests at the time when national delegations were drafting the post-war multilateral trade system, the ITO. It demonstrates how these interests, in turn, created the language, phrasing, and placement of the security exception within the ITO Charter, and details when and how this was adopted in the GATT. This article argues that analyzing internal U.S. practice into the making of Article XXI is relevant for current and future efforts to interpret the exception, thereby contributing to existing literature on Article XXI GATT. It provides the internal deliberations of U.S. officials who served as key architects of the multilateral trade system and of the ITO Charter’s security exception. Additionally, the article captures a fascinating story as to how different U.S. agencies competed to define U.S. foreign and economic policies at the time and shows how the compromises struck help to explain the making of article XXI GATT.

The current pandemic, coronavirus disease-2019 (COVID-19), pushed some countries to adopt export prohibitions on medical devices, protective gear and foodstuffs. Since most of such restrictions would be contrary to WTO Members’ commitments under General Agreement on Tariffs and Trade (GATT) Article XI, the question arises how to justify them. While most scholars concentrate on public health and general exceptions, i.e. GATT Article XX (b), we should not overlook the national security exception under GATT Article XXI. This article discusses the possibility to justify food export restrictions in light of GATT Article XXI (b)(iii) as interpreted by the Panel in the Russia-Traffic in Transit case. Given the flexibility of GATT Article XXI (b)(iii) terms and the larger deference awarded to WTO Members, it appears to be an attractive tool to justify certain export prohibitions in view of the global pandemic. In particular, this article will discuss whether food security can be framed as a national security interest, as well as whether COVID-19 can be considered an emergency in international relations under GATT Article XXI(b)(iii). national security exception, pandemic, COVID-19, food security

This article contends that the World Trade Organization (‘WTO’) plays a vital role in the maintenance of international peace through continued international trade. In exploring this argument, the article looks to the history of the General Agreement on Tariffs and Trade (‘GATT 1947’) and the WTO. After doing so, the article analyses the other side of the coin: when trade is weaponized through the use of the General Agreement on Tariffs and Trade (‘GATT 1994’) security exception Article XXI. Lastly, the article discusses the effectiveness of trade sanctions and whether the security exception is in need of reform in order for the WTO to better engage in the pursuit of international peace through international trade.

Canada is one of thirty-one countries covered by a national carbon pricing mechanism. Complementary border carbon adjustment (BCA) on imports is the next step for preventing carbon leakage from these thirty-one jurisdictions. Existing commentary assessing the legitimacy of a BCA under the General Agreement on Tariffs and Trade (GATT) focuses on the European Union (EU) and the United States (US) and favours the more conventionally used exceptions for protecting environment and conserving natural resources through Articles XX(b) and (g). This article contributes to the literature by flagging that Article XX(b) may not be the most promising route for Canada and provides a fresh characterization of Article XX(g). This article further breaks with convention and takes the road less trod by considering the strength of Articles XX(a) public morals, (d) compliance with laws and regulations, (f) national treasures, and XXI security exceptions. It is challenging to fit modern solutions to complex problems into the GATT, but the WTO needs to demonstrate its responsiveness to change in order to maintain relevancy and legitimacy. Afterall, there can be no trade on a dead planet. Border carbon adjustment, WTO, Article XX GATT, Article XXI GATT, Canada, climate change, climate action, carbon pricing

‘Energy security’ is a crucial concept in international relations, as well as in international (economic) law. Although no international legal definition of this multi-layered notion exists, and the concept has been recognized as ‘vague’ in international relations literature, it remains a term that is used time and again by states when referring to measures taken in connection with safeguarding their national energy supply. This contribution identifies the various dimensions of the concept of energy security, after which it studies its role in international (economic) law and zooms in on the World Trade Organization (WTO). It critically assesses how the panel and Appellate Body (AB) have dealt with WTO Members’ arguments connected to energy security in two recent WTO disputes, India – Solar Cells and EU – Energy Package. The article demonstrates that while energy security concerns may be a valid basis for defending a Member’s measure, they will not hold if that measure is applied in a discriminatory manner. This may be problematic, as energy security concerns are frequently geo-political in nature and may be inherently discriminatory. The contribution also explains why ‘long-term energy security’ defenses are more likely to meet the threshold of the Article XIV(a) General Agreement on Trade in Services (GATS) public policy exception, rather than the ‘products in local short supply’ exception of Article XX(j) GATT. Energy Security, ECT, IEA, OPEC, PTAs, WTO, dispute settlement, public policy exception, local short supply

Individual states increasingly rely upon targeted economic sanctions to achieve their foreign policy goals. The legality of such unilateral sanctions remains debatable in public international law. However, their proliferation and possible negative repercussions encourage targeted states to question their legality before international tribunals, including the World Trade Organization (WTO) dispute settlement system. Against this backdrop, the article analyses three types of recently enacted unilateral targeted sanctions. In particular, sanctions imposed on human rights grounds (‘Magnitsky-style sanctions’), those targeting perpetrators of cyber-attacks, and sanctions impacting trade in information and communications technology and services (ICTS) (e.g.,Huawei sanctions) are discussed. The subsequent analysis focuses on the possible WTO-inconsistency of these economic restrictions. Following this, the possibility to justify such sanctions under the national security exception of Article XXI(b)(iii) of the General Agreement on Tariffs and Trade (GATT) is explored. The conclusion emphasizes that the national security exception cannot be used to justify all types of unilateral economic sanctions, even if these measures are introduced to address national security concerns. This conclusion not only demonstrates inevitable boundaries of the national security clause but also reinforces the general tendency of questioning the legality of unilateral economic sanctions. economic sanctions, national security, WTO, Magnitsky-style sanctions, cyber sanctions, information and communications technology and services, Huawei sanctions

Inscrite dans la dialectique changement-permanence, la stabilité juridique ne saurait s'opposer au changement normatif. Si rien ne changeait, il n'y aurait nul besoin de parler de stabilité, mais tout simplement d'intangibilité, d'immutabilité ou même d'éternité du droit. Par la stabilité, on cherche donc à garantir deux valeurs juridiques importantes : l'évolution du droit et la sécurité juridique. Tout produit juridique aspire à la stabilité. Sur le terrain du droit objectif, la stabilité est protégée afin d'éviter des situations d'inflation normative, de désordre dans la production normative, et de faciliter l'application des produits juridiques dans le temps. Sur le terrain des droits subjectifs, elle est souvent protégée afin d'assurer le maintien des situations juridiques individuelles malgré l'écoulement du temps. Ces aspects transparaissent dans le droit international des investissements à travers l'attente légitime de stabilité juridique. Cela étant, pour qu'une telle attente de stabilité juridique présente un caractère légitime, il faut qu'existe un engagement explicite ou implicite de l'État en ce sens et que les investisseurs se comportent d'une façon diligente et de bonne foi. Sur le plan substantiel, l’investisseur ne doit également pas s’attendre à ce que le droit ne change pas, car le droit est évolutif par nature. En revanche, il peut légitimement s’attendre à ce que les changements normatifs soient introduits de façon prévisible et non arbitraire. La violation de la stabilité juridique de la part de l'État engage sa responsabilité internationale. Au-delà de toutes ces considérations, la stabilité juridique fait face aujourd'hui à de nombreux bouleversements, le plus important semblant être son émergence en tant que principe coutumier de droit international
Discussions of legal stability involve the notions of change and permanence; therefore, legal stability cannot oppose legal change. If nothing changed, there would be no need to talk of stability, and one would simply speak of intangibility, immutability or even of the eternity of the law. Through stability we seek to ensure two important legal values: the development of law and the principle of legal security. Stability is a central aspiration of every law. In the field of objective law, stability is protected in order to prevent a surfeit of laws, disorder in the legislative process and to facilitate the application of laws over time. In the field of subjective rights, it often exists in order to maintain certain specific legal situations and rights in spite of the passage of time. These aspects are reflected in international investment law through the legitimate expectation of legal stability. This being the case, so that such an expectation of legal stability be considered legitimate, there must be an explicit or implicit commitment by the State in this direction and investors must act diligently and in good faith. On the substantive side, it is also necessary that the investor does not expect the law not to change given that law evolves with time. Nevertheless, the investor can legitimately expect that regulatory changes be introduced in a predictable and non-arbitrary manner. Violation of legal stability by the State incurs international liability. Beyond these considerations, today legal stability faces a lot of challenges; the most important of which seems to be its emergence as a customary principle of international law

In 2016, panel and Appellate Body reports were adopted in seven disputes. The majority of the disputes concerned general obligations under two basic WTO agreements: the General Agreement on Tariffs and Trade of 1994 (GATT 1994) and the General Agreement on Trade in Services (GATS). Therefore, the 2016 reports provide valuable analytical resources on basic GATT and GATS concepts, and the respective general exceptions clauses. The other disputes concerned anti-dumping and countervailing duty measures. Two disputes involving Latin American states related to measures imposed in order to combat money laundering and tax evasion, and raised the question of whether GATT tariff obligations apply to “illicit trade”. Two other disputes related to the use of green energy, including the promotion of solar cells and modules, and anti-dumping duties on imports of biodiesel.

This chapter provides a discourse of the nemo dat rule as the general priority rule, followed by discussions of the exceptions to that general rule. Nemo dat quod non habet is the general priority rule in relation to all interests, whether absolute or by way of security. Fully translated as ‘no one can give what they do not have’, the effect of the rule is that as between two interests, the one first in time has priority. The chapter, however, only considers priority between two or more security interests and priority between security interests and absolute interests. The only discussion of priority between absolute interests is where absolute interests are used as financing devices, either by means of the transfer or the retention of title.

This chapter focuses on Article 2(4) of the UN Charter, which prohibits the use of force in international relations. After discussing pre-Charter attempts to restrict states’ freedom to resort to warfare, it examines the emergence of a normative doctrine on a bellum justum. It considers the history of Article 2(4) and the other articles of the Charter that touch on the use of force and outlines exceptions to the prohibition on the use of force, including the so-called Uniting for Peace procedure. It examines the interpretation of Article 2(4) in the practice of the General Assembly, Security Council, and International Court of Justice), together with its inclusion in a number of multilateral treaties. Finally, it assesses the question whether the use of force after 1945 conforms to the object and purpose of Article 2(4), as well as the legal status of the prohibition to use force in contemporary international law.

AbstractThis chapter discusses the general legal framework regulating Russia’s welfare system and access for national citizens, foreigners residing in the country, and national citizens residing abroad to social benefits in five policy areas: unemployment, health care, family benefits, pensions, and guaranteed minimum resources. Our analysis shows that the eligibility of Russian nationals for social benefits depends either on their employment status and contribution record (for pensions and other social insurance benefits), or their residence status (for social assistance and healthcare). The overall level of social protection of citizens residing in different parts of the country may differ substantially due to the decentralized structure of the social protection system in Russia. The rights of foreign residents to social security benefits are essentially the same as those of the nationals, as long as they are legally employed and make social security contributions. However, there are two major exceptions: pensions and unemployment benefits. Social assistance benefits provided at the regional level are typically available to all legal residents, foreigners included, with few exceptions. When deciding to permanently move abroad, Russian citizens lose their entitlement to claim social benefits from Russia, apart from acquired contributory public pensions.

Abstract“Think global, act locally,” is the essence of glocalization and of glocal governance. Glocal governance means that local stakeholders, such as business, civil society, city councils, authorities and activists actively participate in decision-making processes. Different stakeholders, local, international and domestic ones, make decisions on common rules and regulations while operating, controlling, implementing and enforcing them locally—and wherever needed. Many of these decisions are taken in light of and in accordance with global or international standards. Such standards can be universal UN human rights norms that are, for example, enshrined in international human rights treaties and agreements, and WTO trade norms on tax regulation or copyrights and laws. Global norms can be international customary law, such as humanitarian law or the law of the sea, general guidelines, recommendations or rules and standards on security and elections as set by the OSCE.

Abstract This chapter sets out the core principles of international trade law, covering the typical range of obligations and exceptions that apply to international trade in goods and services, under both the WTO covered agreements and FTAs. The first two topics cover the “bedrock” principles of international trade law: market access (covering tariff barriers, quantitative restrictions, non-tariff barriers, and some services-specific market access considerations); and non-discrimination (as between domestic and imported goods; and between imported goods from different sources). The third topic covers various ‘good governance’ obligations, which require transparency and proper administration by national authorities, with respect to their trade-related measures. The penultimate topic covers obligations that balance competing trade interests of different WTO Members, including permitted grounds for preferential trade treatment of imports, the grant of subsidies, and the imposition of trade remedies on imports. Finally, we consider the rules that look to balance competing trade and non-trade interests, including the general and security exceptions in the GATT 1994, and the SPS and TBT Agreements.

Abstract Chapter 6 illustrates how the World Trade Organization (WTO) jurisprudence has, for twenty-five years (1995–2020), promoted the rule of law consistent with constitutional principles (e.g. of proportionality balancing) of judicial administration of justice. It discusses legitimacy problems of WTO adjudication resulting from the limited jurisdiction of WTO dispute settlement bodies. Notwithstanding the rare invocation of human rights and the reticent use of systemic treaty interpretation methods by WTO governments, WTO jurisprudence protected human rights values. Even if WTO complainants, defendants, and WTO dispute settlement bodies avoided references to human rights, there is no empirical evidence that the more than 500 GATT/WTO panel, appellate, and arbitration findings violated human rights. Many GATT/WTO dispute settlement findings balanced private and public interests, for instance by systemic interpretation of WTO rules consistent with multilateral treaties like the World Health Organization (WHO) Framework Convention on Tobacco Control. The increasing recourse to unilateral invocations of national security and public morals for justifying politically motivated trade sanctions was successfully contained by WTO panel reports limiting the allegedly self-judging nature of such invocations of WTO exceptions by insistence on good faith interpretation and respect for the necessity, proportionality, and other rule-of-law principles in WTO law and general international law. Democratic constitutionalism and related theories of justice explain why power-oriented pursuit of the sustainable development goals—including a rules-based, mutually beneficial multilateral trading system, and transnational rule of law—require multilevel constitutional restraints such as those underlying the WTO dispute settlement system.

If killing a single person is considered as a major crime that forbidden by Sharia and law at the international level and at the level of all religions and divine legislation, so what about the concept of genocide!! Here, not just an individual with a weak influence on society is killed, but thousands of individuals, that means an entire nation, a future, energy and human and intellectual capabilities that can tip the scales, and on the other hand, broken and half-dead hearts are left behind from the horrific scenes of killing they witnessed before their eyes, moreover, the massacres of genocide continues to excrete its remnants and consequences for long years and for successive generations, and it may generate grudges of revenge among generations that did not receive the adequate awareness and psychological support which are necessary to rehabilitate these generations to benefit from the tragedies and bitter experiences of life to turn them into lessons and incentives to achieve progress and advancement. Genocide is a deadly poison whose toxic effect extends from generations to others unless it is wisely controlled. Here the role of the international community and its legal, legislative and humanitarian stance from these crimes is so important and supportive. Genocide can be occurred on two levels: external and internal. As for genocide on the external level: this is what happened at the hands of foreign powers against a certain people for colonial and expansionist goals in favor of the occupier or usurper. There are many examples throughout history, such as the Ottoman and British occupations...etc Whereas genocide at the internal level, can be defined as the repressive actions that governments practice against their own people for goals that could be extremist, racist or dictatorial, such as t ""Al-Anfal"" massacre in 1988 carried out by the previous regime against the Kurds in the Kurdistan region. The number of victims amounted at one hundred thousand martyrs, most of them were innocent and unarmed people from children, women and the elderly, and also the genocide which was practiced against of the organizers of Al-Shaibania Revolution in 1991 was another example of genocide in the internal level. It is possible to deduce a third level between the external and internal levels, which is the genocide that is done at the hands of internal elements from the people of the country, but in implementation of external agendas, for example, the scenes of organized and systematic sectarian killing that we witnessed daily during (2007) and (2008), followed by dozens of bloody explosions in various regions throughout the capital, which unfortunately was practiced by the people of the country who were misguided elements in order to destabilize the security of the country and we did not know until this moment in favor of which external party!! In the three aforementioned cases, nothing can justify the act of killing or genocide, but in my personal opinion, I see that genocide at the hands of foreign forces is less drastic effects than the genocides that done at the hands of internal forces that kill their own people to impose their control and to defense their survival, from the perspective of ""the survival for the strongest, the most criminal and the most dictatorial. The matter which actually dragged the country into the abyss and the ages of darkness and ignorance. As for the foreign occupier, he remains an occupier, and it is so natural for him to be resentful and spiteful and to keep moving with the bragging theory of that (the end justifies the means) and usurping lands illegally, but perhaps recently the occupier has begun to exploit loopholes in international laws and try to gain the support of the international community and international organizations to prove the legitimacy of what has no legitimacy, in the end to achieve goals which pour into the interest of the occupiers' country and from the principle of building the happiness and well-being of the occupiers' people at the expense of the misery and injustice of other peoples!! This remains absolutely dehumanizing societal crime, but at least it has a positive side, which is maximizing economic resources and thus achieving the welfare of a people at the expense of seizing the wealth of the occupied country. This remains the goal of the occupier since the beginning of creation to this day, but today the occupation associated with the horrific and systematic killing has begun to take a new template by framing the ugliness of the crime with humanitarian goals and the worst, to exploit religion to cover their criminal acts. A good example of this is the genocide that took place at the hands of the terrorist organization ISIS, that contradictory organization who adopted the religion which forbids killing and considers it as one of the greatest sins as a means to practice the most heinous types of killing that contemporary history has witnessed!! The ""Spiker"" and ""Sinjar"" massacres in 2014 are the best evidence of this duality in the ideology of this terrorist organization. We may note that the more we advance in time, the more justification for the crimes of murder and genocide increases. For example, we all know the first crimes of genocide represented by the fall of Baghdad at the hands of the Mongol leader ""Hulagu"" in 1258. At that time, the crimes of genocide did not need justification, as they were practiced openly and insolently for subversive, barbaric and criminal goals!! The question here imposes itself: why were the crimes of genocide in the past practiced openly and publicly without need to justify the ugliness of the act? And over time, the crimes of genocide began to be framed by pretexts to legitimize what is prohibited, and to permit what is forbidden!! Or to clothe brutality and barbarism in the patchwork quilt of humanity?? And with this question, crossed my mind the following ""Aya"" from the Glorious Quran (and do not kill the soul that God has forbidden except in the right) , this an explicit ""Aya"" that prohibits killing and permits it only in the right, through the use of the exception tool (except) that permits what coming after it . But the"" right"" that God describes in the glorious Quran has been translated by the human tongues into many forms and faces of falsehood!! Anyway, expect the answer of this controversial question within the results of this study. This study will discuss the axis of (ideologies of various types and genocide), as we will analyze excerpts from the speeches of the former regime that were announced on the local media after each act of genocide or purification, as the former regime described at that time, but the difference in this study is that the analysis will be according to a scientific and thoughtful approach which is far from the personal ideology of the researcher. The analysis will be based on a model proposed by the contemporary Dutch scientist ""Teun A. Van Dijk"". Born in 1943, ""Van Dijk"" is a distinguished scholar and teaching in major international universities. He has authored many approved books as curricula for teaching in the field of linguistics and political discourse analysis. In this study, Van Dijk's Model will be adopted to analyze political discourse ideologies according to forty-one criteria. The analysis process will be conducted in full transparency and credibility in accordance with these criteria without imposing the researcher's personal views. This study aims to shed light on the way of thinking that the dictatorial regimes adopt to impose their existence by force against the will of the people, which can be used to develop peoples' awareness to understand and analyze political statements in a scientific way away from the inherited ideologies imposed by customs, clan traditions, religion, doctrine and nationalism. With accurate scientific diagnosis, we put our hand on the wounds. So we can cure them and also remove the scars of these wounds. This is what we seek in this study, diagnosis and therefore suggesting the suitable treatment "