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Week 3: Article XXI National Security - Coggle Diagram
Week 3: Article XXI National Security
Context
It was invoked for the first time in history in Russia Transit (2019)
Accepted that states would take a hands off approach to art XXI
Use of Art XXI is indicative of a shift in international trade relations: More open and aggressive use of trade leverages/pursuit of economic and unilateral interests?
The floodgates are potentially open because of US steel and Aluminum Tariffs.
Paragraph b)
To prevent a member from taking any action necessary for the protection of its essential national security interests
Sets out 3 circumstances where action would be necessary
Relating to fissionable materials or the materials from which they are derived
Relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establshment
Taken in time of war or other emergency in international relations
Sub paras (i - iii) set out particular circs where MS can take action it considers necessary for its essential national security interests (ENSI)
Main point of issue is what a panel / AB can review under this art: who decides...
What is necessary for protection of ENSI
What ENSI of a state are?
What is a "time of war" or other "emergency in international relations"?
Russia - Transit (2019)
Russia declared sovereignity over Crimea 03/2014
Russia required goods in transit from Ukraine to be inspected in belarus
Ukraine complained under ART V (freedom of transit) GATT
Russia relied on Article XXI (b) (iii): argued
The measure was necessary to protect its essential national security interests (ENSI)... in a time of war or emergency in international relations
That the WTO could not review the decision. Rather what is necessary for ENSI is entirely a matter for the Nation State
Panel decision
A panel must objectively determine if the circumstances described in each sub - para exist. i.e was Russia's measures made during a time of emergency in international relations?
Emergency in I.R means "armed conflict", latent armed conflict or of heightened tension or crisis, or general instability engulfing or sorrounding a state
Para (iii) satisfied. An emergency in IR existed from 2014
Yes, state decides what "it" considers necessary, but this decision must be in
good faith
"The obligation of good faith require that MS not use the exceptions in article XXI as a means to circumvent their obligations under the GATT. A glaring example of this would be where a member south to release itself from the structure of "reciprocal and mutually advantageous arrangements" that constitutes the multilateral trading system simply by re-labelling trade interests that it had agreed to protect and promote within the system, as "essential security interests", falling outside the reach of that system