72 Am. U. L. Rev. 1137 (2023).

Download PDF Here!

Abstract

On December 9, 2022, the World Trade Organization (WTO) issued landmark rulings against the United States in four cases brought by China, Switzerland, Norway, and Turkey involving the U.S. imposition and maintenance of restrictive trade measures on steel and aluminum imports dating back to 2018. The major effect of the rulings was to quash the idea that a WTO member had unfettered discretion to invoke the national security exception under Article XXI(b) of the General Agreement on Tariffs and Trade (GATT 1994) whenever it suits its interests. The recent decisions build upon important WTO precedents addressing the applicability of the national security exception under international trade rules by providing more clarity and scope to the language contained within Article XXI(b)(iii), how and when Article XXI(b)(iii) should be applied in a given scenario, and who ultimately has the authority to make these determinations—the Member State or a WTO dispute resolution panel. The WTO held that though a WTO member reserves the right to determine what is in its national security interests, a WTO Member’s subjective assessment as to when to invoke the national security exception can be reviewed by an international judicial body through an objective review of the circumstances. The December 9 rulings underscore the important principle that the goal of trade liberalization will triumph over protectionism in instances where states seek to abuse trade rules under the guise of national security to score political points at home. The rulings also mark a critical turning point in the relationship between the United States and the WTO centered on the issue of national security that places the entire rules-based trading system at risk.

* Dean, and Professor of Law, University of Wyoming College of Law. J.D., University of Virginia, 1999. Ph.D., M. Phil., Cambridge University, 1997. B.A., Yale University, 1991.