international law,

Preliminary Analysis of Article XXI: Why the National Security Exception is an Implausible Justification for US Steel and Aluminium Tariffs on China

By Naina Gupta Feb 17, 2020

US protectionist measures in modern history reached a new apex in 2018 when tariffs against steel and aluminium imports were announced, which particularly affected China, the state posing a sharp political and economic contrast to US. Not only did this trigger retaliatory measures but it also made the US a target of further World Trade Organisation (WTO) complaints from 9 Member States in relation to violations of the GATT articles, which promote trade liberalism. The US sought to defend itself using Article XXI’s national security exception. This article, however, purports to show that the US would not be successful in availing itself of Article XXI. The developments in the WTO Panel’s position regarding the reviewability of a nation’s measures invite greater scrutiny, posing a challenge to  US’s claim. The tariffs on steel and aluminium may be associated with a stronger national defence, hence showing an ‘essential security interest’. Furthermore, it is improbable that demonstrating a belief in the nexus between the tariffs and national defence will be a hurdle due to the low threshold of good faith. Instead, the demise of the US justification using Article XXI may be brought due to the inability of establishing that the circumstances were an ‘emergency in international relations’ and necessitated the tariffs.

I) Introduction

In the context of a rapidly globalising world, the increase in protectionist measures, including trade barriers, by nations acting independently is a step backwards and indeed “the last thing the global economy needs”.1 The current era is marked distinctly by economic competition between the two largest economies of the world, the US and China. The anti-multilateral trade policy actions became evident right after President Trump took office and announced the withdrawal of the US from the Trans-Pacific Partnership (TPP).2 However, the most blatantly protectionist measure, the subject of this article, were the tariffs on steel and aluminium imports. In 2018, Trump announced that a 25% tariff on steel and a 10% tariff on aluminium would be implemented on imports from various nations including China. This was enacted using an obscure provision in US domestic law, and the breach of the international prohibition on trade restricting measures was justified on grounds of national security.3 The American claim was that the strategic importance of steel and aluminium rendered the enforcing of tariffs crucial so that the domestic production losses were minimised and capability for supporting national industry of the metals was adequately developed for national defence and military purposes.4

US tariffs against China caused turbulence in international trade law due to breaching the Most Favoured Nation principle of GATT Article I, according to which countries are not permitted to discriminate between their trading partners.5 As the US and China are party to the World Trade Organisation (WTO), a lower or higher tariff must be applied to imports originating from all Member States without differentiation. Therefore, in order to enact a tariff, the Trump administration invoked the strict, seldom-used national security exception of Article XXI and asserted that the context was a time of ‘emergency in international relations’.6 This gave rise to the question of whether the national security exception could be utilised by the US, where the crisis does not occur in the context of a conventional military conflict.7 This article seeks to demonstrate the difficulty of applying the national security exception to defend US tariffs on China within the WTO ambit of rules. The article begins by exploring the text of Article XXI and observing the impact of the Russia-Ukraine dispute on the reviewability of the US-China assertions in subjecting the dispute to greater scrutiny. It contends that although the national security exception is narrow and largely within Member State discretion, it allows for non-military, economic situations to fulfil the ‘essential security interest’ requirement. Establishing a connection between the rationale behind the measure and the essential security interest is a grey area of ascertaining the true state intention, but this problem is swiftly overcome by the low threshold of only requiring good faith action by the Member. The specific case of the US steel and aluminium tariffs may, however, fall short of demonstrating the seriousness of tensions and thus, a real ‘emergency’. Hence, it would not be covered by Article XXI, leading either to a lose-lose decision by the WTO Panel, which weakens the WTO regime, or an unrewarding settlement.

II) Text of Article XXI and Reviewability

Article XXI of GATT reads as follows:

Nothing in this Agreement shall be construed

a) to require any contracting party to furnish any information the disclosure of which it considers contrary to its essential security interests; or

b) to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests

i. relating to fissionable materials or the materials from which they are derived;

ii. 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 establishment;

iii. taken in time of war or other emergency in international relations; or

c) to prevent any contracting party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.8

Article XXI was drafted with an intention to balance various interests. It aimed to “take care of real security interests and, at the same time … limit the exception so as to prevent the adoption of protection for maintaining industries under every conceivable circumstance”.9 It is a product of the desire to give countries enough leeway to institute measures required for security reasons and simultaneously prevent them from abusing Article XXI for advancing commercial ambitions. As such, the US tariffs bring discomfort among officials, because it appears to mix the “politics of international disputes into the legal world of trade and business” under the camouflage of national security.10

Until April 2019, many contested and unclarified sections of Article XXI, such as reviewability, remained opaque due to its limited jurisprudence. Till then, only one Panel report had been adopted out of the seven GATT disputes regarding the security exception and the three WTO disputes which were all settled.11 On 5 April 2019, the WTO issued its first ruling, a binding decision, on the national security exception and clarified the institution’s stance on the reviewability of the exception. The dispute arose between Russia and Ukraine due to measures taken by Russia which compelled transport going from Ukraine to Kazakhstan and Kyrgyzstan to follow specific routes. These were subject to additional conditions and obtaining derogations from authorities, thus constituting complete bans.12 Ukraine complained about the breaches of GATT obligation and Russia replied by stating that the action was necessary for protecting its essential security interests. Russia’s assertion was that the Crimean events of 2014 amounted to an ‘emergency in international relations’ and threatened Russian border security. Furthermore, Russia contended that Article XXI(b)(iii) fell entirely within a Member’s remit to judge and that the WTO Panel may only acknowledge the invoking of the national security exception without examining the merits of the claim.13 This perception of Article XXI(b)(iii) as ‘non-justiciable’ has historically been shared by the US, which has publicly stated its opposition to reviewability, and it was argued that a Member should not be prohibited from acting in a manner that it perceives as necessary for the protection of its essential interests. 

The WTO Panel disagreed with the Russian perspective on reviewability. It clarified that the WTO Panel may review actions under the security exception of Article XXI(b) and that it was objectively discernible whether one of the three subparagraphs of (b) had occurred. Moreover, the ruling stated that the Panel could also review the measure itself to assess if it was truly believed that the measure was necessary for the safeguarding of the essential security interest and if the measure and the security interest are plausibly related.14  The only assessment that rested entirely in Members’ hands and would not be objectively reviewed by the WTO was the determination of the ‘necessity’ of the measure employed for achieving national security interests. The reason the WTO decided largely in favour of reviewability was in light of the logical structure of Article XXI(b). It was interpreted that the structure of this subsection was intended to limit Member State discretion in invoking the exceptions. If the assessment as to whether the requirements of the subsection were fulfilled were left to Members, the clauses would be stripped of any practical effect.15 In addition, it would result in Members being able to unilaterally discontinue their obligations under the GATT treaty, which would leave the impacted states unprotected and contradict the aim of WTO law to “promote the security and predictability” in trade agreements.16 These ground-breaking findings, however, may be amended or overturned if either Russia or Ukraine appealed to the Appellate Body.17

The rejection of the Russian and the US position on (un)reviewability could endanger the viability of the US claim of national security in justifying tariffs, because the ruling invites greater WTO scrutiny on the measures: their necessity and the plausibility of its link with national security interests.18 The ruling reduces the possibility of exploiting the national security exception where the links between an essential security interest and the trade restriction are tenuous, or where the context or rationale is a non-emergency.19 An entirely deferential approach to the national security exception would have also contradicted the historic search for an equilibrium between protecting security interests and preventing Members from maintaining their own industries in all circumstances. This ruling prevents Members from easily deviating from the GATT commitments and it ensures that the provision does not automatically permit everything under the sun whenever it is branded as being necessary to protect an essential national interest.20

As the national security exception would be closely reviewed, Article XXI(b)(iii) is no longer a wildcard that could be used by nations to circumvent trade law obligations. The next part of the paper seeks to analyse if US tariffs would survive WTO’s extensive review and whether their measure could tenably be justified on the ground of national security.

II) Applying the National Security Exception
A) 'Essential Security Interest'

The first aspect of the legal test under article XXI is whether there was an essential security interest at stake.21

In the determination of whether there was an essential interest at stake, Members are afforded a large margin of appreciation. An essential security interest is an inherently stricter requirement than ‘security interests’ alone and is said to refer to “quintessential functions of the state, namely, the protection of its territory and its population from external threats, and the maintenance of law and public order internally”.22 In past national security disputes, it has been contended on numerous occasions that “every country must be the judge in the last resort on questions relating to its own security”23 and that “each contracting party was the sole judge of what was necessary in its essential security interest”.24 This is hardly surprising given that the text of Article XXI states that it does not prevent Members from taking action ‘which it considers’ necessary, thus highlighting the subjective nature of this assessment. The stated interest could range from government employee benefits, effective transportation of imports and exports or development of nuclear forces.25 Therefore, a country has wide discretion to identify its essential security interests.

In the context of the the US-China trade war, the US articulated that the essential security interest threatened by steel and aluminium imports from China was national defence.  It was officially stated that the quantity of steel and aluminium imports threatened domestic production sites with closures and was reducing national capacity to independently produce steel and aluminium items if a national defence emergency took place.26 Additionally, the tariffs were imposed to encourage the preservation of the vital skills in the US economy and labour force. 

Given the margin of discretion afforded to Member States in assessing whether their national security interest is threatened, it is unquestionable that the US has the discretion to state that national defence is an essential security interest. However, the more difficult question is how the state discretion is tempered, and in particular, whether the concept of an ‘essential security interest’ can sufficiently accommodate non-military and commercial situations within the intentions of the GATT drafters.

Jaemin Lee argues that both ‘essential security interest’ and ‘emergency in international relations’ are sufficiently wide to encompass non-military and commercial or economic circumstances; however, the mere reference or highlighting of economic harm does not suffice.27 As historian Paul Kennedy stated:

“[T]he definition of national security cannot refer simply to military policies or to military spending alone. I think it ought to refer instead to those sources, those underpinnings of long-term national strength in the state and power of our manufacturing, investment in science and technology, of educational skills, all of which ultimately the Armed Forces and defence policy of this country have to rest upon”.28

The only condition is that there must be an appropriate, economic justification behind the essential security interest.29 In a case involving Sweden, many Contracting Parties were unconvinced with the Swedish contention that imports of footwear threatened national defence because Sweden did not provide any detailed economic justification.30 In contrast, as the American notion of national security has historically been connected with maintaining a powerful national economy,31 the present case is unlikely to be considered inadequately justified or too remote. High tariffs commanded strong support in the US political history and were used during the Great Depression for strengthening the national economic security and industrial strength for national defence.32 The US has also maintained consistent efforts in incorporating exemptions from their agreements due to economic circumstances, for instance in the Friendship Commerce and Navigation Treaties (FCN treaties). The treaty allows for derogating from national treatment obligations in a period of economic emergency.33 These historical precedents once again illuminate the intertwinement of domestic economic health and national security, and explain why economic circumstances can and should fall within the ambit of ‘essential security interests’ for the US.

Accordingly, even if the  Panel remains unconvinced about a country’s chosen matter constituting a national security interest, the selection of national interests is the sole discretion of a country and would not be amenable to WTO review if it has been adequately articulated. As mentioned above, the stated interest could range from government employee benefits, effective transportation of imports and exports or development of nuclear forces.34 Thus, not only is it possible for an economic interest to be used discretionarily to constitute an essential security interest, but the current case of US-China also demonstrates the economic importance and relation of steel and aluminium imports to its essential security interest.

B) Belief in The Measure Adopted

The second aspect of the legal test involves ensuring a link between the measure adopted and the essential security interest. While the test of necessity of the measure is the exclusive assessment of a Member State, the Panel may investigate and ensure that the trade measure was taken with the sole rationale of promoting the essential interest. That said, Article XXI(b) requires adequate explanation which can be subject for review by the Panel only to observe if there is sufficient support of the measure being genuinely considered to promote the essential security interest. The test is thus reduced to a looser, good faith obligation.35 In the case of the US, it would have to demonstrate that the tariffs do not have an ‘implausible’ relation with protecting the essential security interest of national defence and provide adequate reasoning to satisfy the necessity qualification.36

As Article XXI did not specify a formal condition to satisfy the legal test and only a minimum requirement should be needed for showing connection between the measure and security interest,37 the US is unlikely to face challenges in fulfilling the lenient standard of review. The Proclamations on the introduction of steel and aluminium tariffs expressed the instrumental role played by steel and aluminium and its value for military and infrastructural purposes, which demonstrate the nation’s belief in the effectiveness of tariffs in achieving their national security interest.38 One may argue that the imposition of tariffs was not done out of genuine belief that it was required for national defence, as the Department of Defence acknowledged that only  3% of total domestic production of steel and aluminium is needed for military purposes and that there is no current shortage of this supply.39 However, because the WTO relies on Member cooperation and reciprocal trust, the concerns expressed in the White House proclamations could successfully fulfil the low good faith threshold. 

Furthermore, the Panel’s finding in the Russia-Ukraine dispute that the Russian action was a measure genuinely taken for national security interests is in favour of finding the same for the US. In that case, Russia had taken trade-restrictive measures which resulted in Ukraine not being able to use roads or railways, which prevented the flow of goods to Kazakhstan and Kyrgyzstan, and affected the goods destined for Mongolia, Tajikistan, Turkmenistan and Uzbekistan.40 In light of the significant impact on its trade, Ukraine complained about the violation of the GATT treaty and the Russian Accession Protocol. However, Russia did not specifically respond to the legal arguments or factual basis for Ukraine’s complaints related to the GATT treaty nor the Russia Accession Protocol violations. In its submissions, it plainly stated that the measures were considered ‘necessary for essential security interests’ in relation to the 2014 emergency concerning the security of the Ukraine-Russia border.41

Despite such little engagement with the allegations and the absence of a full defence on the Russian part, the Panel found that “Russia’s articulation of its essential security interests is minimally satisfactory”. Ultimately, the question was phrased as asking whether the measure was “so remote from, or unrelated to, the 2014 emergency that it is implausible that Russia implemented them for the protection of its essential security interest”.42 On that formulation, only the most distanced and remote links between the measure and essential interest would be rejected. This indicates that even making public suggestions of enacting measures for protectionist interests would not jeopardise the country from meeting the low threshold.43 Thus, even a counterargument that Trump made public statements highlighting that the tariffs on China were for non-essential security reasons would fail to damage the US assertion of good faith belief in the measure. The low threshold would lead to US trade measures being considered as genuinely intended for facilitating national industries.  

C) 'Emergency in International Relations'

The final determination that Panel must make is to decide whether one of the conditions within subparagraph (b) exist, the most relevant of which for present purposes is the state of emergency in international relations. Lacking an official definition, ‘emergency in international relations’ is one of the vaguest phrases in the article and has been interpreted in ordinary language and meaning in the context of the phrase “war or other emergency in international relations”. As ‘war’ has been referred to as a “violent struggle through the application of armed force”,44 the meaning of ‘emergency’ must be different to ‘war’ and need not reach the gravity of an armed military conflict or else the distinction would be futile. Nevertheless, an emergency must be sufficiently serious to ensure that every state that cannot demonstrate an armed conflict, does not simply rely on the phrase, ‘emergency’, to justify trade measures in a context of mild frictions.45 The Panel in the Russia-Ukraine dispute defined an emergency in international relations as a “situation of armed conflict, or of a latent armed conflict, or of heightened tension or crisis, or of general instability engulfing or surrounding a state”.46 Due to the political and military tensions after the Russian annexation of Ukrainian territory in 2014, the Panel was satisfied that the measures taken by Russia were during an emergency period, which gave rise to security concerns for the Ukraine-Russia border. Moreover, the UN General Assembly’s recognition of the armed conflict and absence of evidence suggesting an intention to circumvent WTO trade rules led the Panel to conclude that the minimum requirements for Article XXI(b) had been met.47

Although ‘heightened tension or crisis’ could equate to a non-military and economic emergency, the US economic relations with China are unlikely to satisfy the ‘emergency’ requirement. In general, an economic situation, which albeit is not war but threatens causing comparable damage is capable of falling under the scope of ‘emergency’.48 In fact, the use of the conjunction ‘or’ between ‘war’ and ‘emergency in international relations’ indicates that non-war emergencies can be equally harmful to domestic interests, especially in light of economic retaliation and cyber attacks.49 Therefore, it appears that non-military circumstances could validly constitute ‘emergencies’ if they reach a similar level of threat.   However, based on a comparable case, the US would be unable to prove the gravity of the US-China trade war and would, therefore, fail in proving an ‘emergency’.

In the arbitration proceedings of CMS against Argentina at ICSID, the emergency defence of a bilateral agreement was invoked by Argentina to justify its actions. However, even though the Argentinian economy suffered through a major economic and political crisis since the 1990s, to the extent that it enacted new laws declaring a public emergency, the tribunal found that Argentina did not meet the benchmark of ‘total’ economic collapse.50 Although the ICSID tribunals are not binding on the WTO, the ICSID interpretation of ‘emergency’ makes for an interesting and potentially useful comparison, especially because WTO has no jurisprudence of its own on this matter. Not only is the US economic situation far less precarious than the Argentinian, but the tension between the US and China remains mainly that of political and economic differences, which as per the Panel report on Russia and Ukraine is insufficient alone for showing an emergency. As the US-China trade war is not of extreme severity and section 232 was intended as an overall economic policy tool51 instead of specifically aimed at national economic security reasons, the US-tariffs are unlikely to be considered as having arisen in an emergency context. Therefore, the US invocation of the national security exception of Article XXI is unlikely to succeed.           

III) Outcome of the Dispute

Although the foregoing analysis implies that the US would have breached WTO laws and cannot make use of the national security exception, this may not necessarily lead to a WTO finding that there has been a breach. If the dispute results in a Panel decision, it could be a ‘lose-lose’ choice. On the one hand, if the Panel lowers the threshold required for an ‘emergency in international relations’ or for other reasons finds that the US could successfully apply Article XXI’s exception, the leniency could encourage other nations to implement trade barriers under the mask of ‘essential security interest’. Not only would this damage the credibility of the WTO as a neutral institution, but it would also render the trade laws that prohibit trade restrictions nugatory. On the other hand, a Panel ruling that finds against the use of the national security justification for the US would be perceived as encroaching upon national decisions and could lead to crucial players, such as the US, withdrawing their membership from the institution.52 It would also risk antagonising the US further, which already refused the replacements for the leaving members of the Appellate Body. This would mean that, unless the US began approving members, the Appellate Body would be paralysed in its functioning as it requires a minimum of three panellists and, without replacements, soon there may only be two panellists remaining.

Due to the unfavourable consequences of having a direct confrontation through a Panel decision, it is likely that dispute resolution is reached through diplomatic or non-confrontational means, such as the position US-Nicaragua dispute ended in. In this dispute in 1985, the US effectuated a full trade embargo on exports and imports that went to or originated from Nicaragua. Nicaragua claimed that the US had violated various articles of GATT and that the national security exception could not be used arbitrarily in a context where it was challenging to believe that a country as economically and physically small as Nicaragua posed a real threat to US essential interests.53 Although a Panel report was issued, there was no consensus and the report was ultimately not adopted. Nevertheless, the trade embargo and all sanctions were officially lifted in 1990 when US officials stated that the circumstances that created the need for the trade restriction had dissipated.54 The US-China and US-Nicaragua dispute share similarities in both being cases where an essential non-military interest was at stake, an extreme trade measure was adopted and the context did not represent a true ‘emergency of international relations’. Given these commonalities, it is possible that a diplomatic or political solution may be the only acceptable outcome for the US-China dispute.   

IV) Conclusion

Overall it seems that invoking the national security exception involves a delicate balance between restricting Members from acting in protectionist manners while being permissive of deviations under the narrow condition of an endangered essential security interest. If the dispute reached the WTO Panel, the US’s use of the defence would be subject to extensive review. The essential security interest of national defence is likely to be satisfied due to Member State discretion in this field and the link between steel and aluminium and national defence. Demonstrating genuine belief in the tariffs being able to achieve a stronger national defence system would also be easily fulfilled, albeit after being subject to review, due to the low threshold. It is the final determination of whether an emergency in international relations exists which would be a blow to the US reliance on the national security exception, as this necessitates grave circumstances in the US-China trade war and the state of affairs has not yet reached that severity.

The handling of the US-China trade dispute highlights the weaknesses of the WTO as an institution that relies on consensus and requires the cooperation of key economic leaders in order to be effective. Thus far, the Panel decisions, or the lack thereof, have given rise to more questions than answers, such as the degree to which the Panel will continue with almost ground-level good faith requirement where a nation gives mixed indications of its true rationale behind trade restrictions. Moreover, the application of the vague definitions of ‘emergency’ will remain largely opaque until there is further jurisprudence on Article XXI. Perhaps the clearest lesson on analysing literature and applying the Russia-Ukraine ruling to the US-China tariffs is that discussions of Article XXI(b) have only commenced and require examination in various contexts before its true shape becomes workable or clear. Suffice it to say that the national security exception is no longer a trump card.

[1] R V Anuradha, ‘Petrificus Totalus: The Spell of National Security!’ [2016] 13 ASIAN J WTO & INTERNATIONAL HEALTH & POLICY 311, 326

[2] ‘International Law in US-China Relations: Trade Wars and Maritime Rights in the Era of Xi and Trump.’ (THE ASAN FORUM) «» Accessed 22^nd^ August 2019.

[3] ‘Presidential Proclamation on Adjusting Imports of Steel into the United States.’ (The White House) «» Accessed 23^rd^ August 2019 and ‘Presidential Proclamation on Adjusting Imports of Aluminum into the United States.’ (The White House) «» Accessed 23^rd^ August 2019.

[4] Ibid.

[5] General Agreement on Tariffs and Trade (GATT), Article I.

[6] GATT, Article XXI(b)(iii).

[7] ‘The WTO’s First Ruling on National Security: What Does It Mean for the United States?’ (Centre for Strategic and International Studies) «>[G(4]> Accessed 24^th^ August.

[8] GATT, Article XXI

[9] ‘Article XXI – Security Exceptions.’ (Analytical Index of GATT) «». Accessed 23^rd^ August 2019.

[10] Donald N Zillman, ‘Energy Trade and the National Security Exception to the GATT’ (1994) 12 J Energy & Nat Resources L 11

[11] Ji Yeong Yoo, Dukgeun Ahn, ‘Security Exceptions in the WTO System: Bridge or Bottle-Neck for Trade and Security?’ [2016] 19 Journal of International Economic Law 2, 417

[12] ‘Landmark Ruling on the WTO National Security Exception’ (Herbert Smith Freehills) «». Accessed 23^rd^ August 2019.

[13] Ibid.

[14] ‘The WTO’s First Ruling on National Security’ (n 7)

[15] ‘Landmark Ruling on the WTO National Security Exception’ (n 12)

[16] Ibid.

[17] ‘The WTO’s First Ruling on National Security’ (n 7)

[18] Ibid.

[19] ‘Landmark Ruling on the WTO National Security Exception’ (n 12)

[20] Markus A Reiterer, ‘Article XXI GATT - Does the National Security Exception Permit Anything under the Sun’ (1997) 2 AUSTRIAN REV INT’L & EUR L 191.

[21] ‘Landmark Ruling on the WTO National Security Exception’ (n 12)

[22] WTO, Russia - Measures Concerning Traffic In Transit (5^th^ April 2019) WT/DS512/R

[23] ‘Article XXI – Security Exceptions.’ (Analytical Index of GATT) (n 9), 600.

[24] In 1961, Ghana on the occasion of the accession of Portugal

[25] Zillman (n 10), 125

[26] Presidential Proclamations (n 3)

[27] Jaemin Lee, ‘Commercializing National Security: National Security Exceptions’ Outer Parameter under Gatt Article XXI’ (2018) 13 ASIAN J WTO & INT’L HEALTH L & POL’Y 277, 285

[28] Zillman (n 10), 126

[29] Ibid.

[30] WTO (n 22),1.20

[31] Lee (n 27), 285

[32] Ibid.

[33] Ibid.

[34] Zillman (n 10) 125

[35] ‘Landmark Ruling on the WTO National Security Exception’ (n 12)

[36] Yong-Shik Lee, ‘Three wrongs do not make a right: the conundrum of the US steel and aluminium tariffs’ (2019) 18(3) WORLD TRADE REVIEW, 481.

[37] Tsai Fang Chen, ‘To Judge The “Self-Judging” Security Exception Under The Gatt 1994 – A Systematic Approach’ (2017) 12 AJWH 311, 348

[38] Lee (n 36), 489

[39] ‘Landmark Ruling on the WTO National Security Exception’ (n 12); José-Miguel Bello y Villarino, ‘Trade Retaliation in the Time of Trump’ (EJIL: Talk!)  Accessed on 25^th^ August.

[40] WTO (n 22),  7.1.

[41] Ibid 7.136.

[42] Ibid 7.139.

[43] Ibid  7.138.

[44] Reiterer (n 20 ) 201

[45] Lee (n 27), 285

[46] WTO (n 22), 7.76.

[47] ‘Landmark Ruling on the WTO National Security Exception’ (n 12).

[48] Lee (n 27), 295

[49] Ibid.

[50] ICSID, CMS Gas Transmission Company v. The Republic of Argentina. Case No. ARB/01/8

[51] Lee (n 27), 303

[52] ‘The WTO’s First Ruling on National Security’ (n 7) and Yoo, Ahn (n 11)

[53] WTO (n 22), 1.37 – 1.60

[54] Ibid.

Article by Naina Gupta
LLM (Public International Law) (London School of Economics and Political Science) ‘20