Creating Standards and Accountability for the Use of the WTO Security Exception: Reducing the Role of Power-Based Relations and Establishing a New Balance Between Sovereignty and Multilateralism

Abstract

Article XXI of the General Agreement on Tariffs and Trade (GATT) was designed to create a "security exception." Pursuant to this exception, a contracting party can escape its obligations under the Agreement and take any action that it considers necessary for the protection of its essential security interests "in time of war or other emergency in international relations." However, the distinction between the protection of an "essential security interest" and the advancement of a particular policy agenda has remained substantially, and quite intentionally, blurred. As a result, although article XXI was not designed to create a "policy" exception, or to create a mechanism by which one nation could impose its social, political, or economic ideology on another, in an environment where both global competition and global interdependence continue to rise, it is conceivable that article XXI will be invoked for the wrong reasons. More significantly, article XXI will continue to serve as a generally unspoken basis for the unilateral imposition of restrictive trade measures for non-economic purposes. These measures, often imposed without identifiable standards and without any accountability or effective retaliatory remedy, undermine the cooperative integrative purposes of the world trade system. These kinds of trade restrictions perpetuate a power-based approach to international relations that generates an unacceptable imbalance between the realities of national sovereignty and the spirit of a more multilateral form of global economic governance.