The problems of interpreting GATT Article XXI(b)(iii) in Russia – Traffic in Transit

• DOI: https://doi.org/10.1108/JITLP-10-2021-0054
• Published date: 17 December 2021
• Date: 17 December 2021
• Pages: 65-78
• Subject Matter: Strategy,International business,International business law,Economics,International economics,International trade
• Author: Ramadhan Bismono,Joko Priyono,Nanik Trihastuti

The problems of interpreting

GATT Article XXI(b)(iii) in

Russia –Traf‌f‌ic in Transit

Ramadhan Bismono,Joko Priyono and Nanik Trihastuti

Faculty of Law, Diponegoro University, Semarang, Indonesia

Abstract

Purpose –This paper aims to further study the panel report in Russia –Traff‌icin Transit regarding the

interpretation and application of 1994 general agreements on tariffs and trade (GATT) Article XXI(b). It

analyses the threshold appliedby the panel in applying Article XXI(b)(iii)and further discusses the potential

problem that may arise in the future dispute. This study also investigates the notion of emergency and

securityinterest and its development in international law.

Design/methodology/approach –This normative researchuses a qualitative legal methodology. This

study conducts desk analysis of primary legal materials and existing literature to assess the concept of

securityinterest within the World Trade Organization (WTO) framework.

Findings –This paper f‌inds that the panel in Russia –Traff‌ic in Transitapplied subjective and objective

test in reviewing Russia’s invocationof GATT Article XXI(b)(iii). Despite the adjectival self-judging clause

and the political tensionof the dispute, the panel is capable to review its application. Thisstudy further f‌inds

that the term security interest and emergency in international relations still leaves the possibility of open

interpretation.

Research limitations/implications –Because of the normativeresearch approach, the research results

lack empirical data and implications. Therefore, future research is encouraged to inquire on the empirical

research.

Originality/value –This paper fulf‌ils the need to studyand explore security exception clause within the

WTO framework as a normativerule of law and in the wider conceptual notion of security and emergency in

internationallaw.

Keywords WTO, Interpretation, Russia –Traff‌ic in Transit, security exception

Paper type Case study

1. Introduction

1994 general agreements on tariffs and trade (GATT) legal framework is designed to

facilitate its state parties ability to respond to situations beyond international trade

(Messerlin, 2005). In situation of emergencies –such as natural disasters, pandemic,

f‌inancial crisis and war –rules that would applyin normal circumstances cannot always be

upheld, especially if the emergencythreatened the existence of the State (Garcia-Santaolalla,

2021). GATT facilitates its state parties’ability to respond to unexpected situation through

its “escape clauses,”where conducts that would otherwise be inconsistent with GATT are

precluded if acted pursuant to the requirement of the escape clause. This delicate balance

between performance of treaty obligationand f‌lexibility to respond to unexpected situation

is at the core interest of GATT(Pelc, 2009).

While the escape clause under GATT Article XIX (safeguards) and Article XX (general

exception) had developed in the jurisprudence of World Trade Organization (WTO) Dispute

Settlement Body (“WTO-DSB”), the security exception contained in Article XXI had not

received further discussion. Scholars and WTO member were particularly concerned with

Problems of

interpreting

GATT Article

65

Received12 October 2021

Revised3 November 2021

Accepted3 November 2021

Journalof International Trade

Lawand Policy

Vol.21 No. 1, 2022

pp. 65-78

© Emerald Publishing Limited

1477-0024

DOI 10.1108/JITLP-10-2021-0054

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