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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