The GATT Security Exception: Systemic Safeguards Against Its Misuse
Volume 9 Issue 3-4 (2016)
Distinct from the heavily litigated General Exceptions enshrined in Article XX of the General Agreement on Tariffs and Trade, 1947, the Security Exception under Article XXI presents a unique challenge to the WTO Dispute Settlement Mechanism. As this provision governs a sensitive aspect of State sovereignty, namely, the preservation of national security, there is little consensus on the form or extent of scrutiny that the WTO can place on a member invoking Article XXI. At the outset, arguments can be made to exclude any determination of the invocation of Article XXI from the WTO Panel review altogether. Even if the Panel’s jurisdiction is accepted, Member States would have impenetrable discretion to invoke the exception, if the ambiguously drafted provision is stretched to its widest ambit. This leads to the opening up of dangerous avenues of misuse of the provision, threatening the integrity of the multilateral trading system. In this paper, I will seek to argue that the risk of misuse of this provision is overstated, because of, rather than in spite of, its ambiguity and political complexity, and will establish that the modern WTO regime provides strong systemic safeguards, both direct and indirect, against its misuse.