Issues with the Interpretation of Security Exceptions under Article XXI(b) of the World Trade Organization

Abstract

This research article examines the evolution of the interpretation of Article XXI(b) of the World Trade Organization (WTO) concerning security exceptions, from the GATT era to the present. It analyzes practices and rulings related to invoking these exceptions. The study finds that during the GATT and early WTO periods, the interpretation of Article XXI lacked clarity, with very few references to these exceptions. In cases where they were invoked, disputes were often resolved through negotiations without going through adjudication processes that would establish norms or practices. However, since the trade war era, invoking these exceptions, Article XXI(b), has become more widespread, and the WTO Dispute Settlement Body has shown clearer trends on several issues. These include allowing states discretion in the chapeau while reserving interpretative authority for the Dispute Settlement Body in specific provisions, dividing the elements of the provision, and interpreting “essential security interests.” Nevertheless, some issues remain unclear, particularly regarding the interpretation of “emergency in international relations” and how state discretion is reviewed by the Dispute Settlement Body.