This is a guest post from Ben Heath, Acting Assistant Professor of Lawyering at NYU Law
On April 26, the WTO Dispute Settlement Body adopted the first-ever panel report to interpret the “security exception” to the General Agreement on Tariffs and Trade. This exception allows each member state to take any action that “it considers necessary for the protection of its essential security interests” under certain specified circumstances. The exception has long been understood by some parties, including the United States, to be “self-judging,” meaning that the state invoking the exception has the exclusive competence to decide whether the exception applies. The panel in the Russia — Transit dispute rejected this view: even as it found that Russia had validly invoked the security exception on the facts of the case, it asserted strongly that WTO panels have a significant role to play in policing security measures that impinge on international trade.
Everyone agrees this is a potential turning point for the trading system. Many have already declared the decision to be a “constitutional moment,” perhaps on the order of Marbury v. Madison. Sungjoon Cho, for example, has argued that there would have been negative constitutional consequences had the panel decided the other way, potentially triggering widespread abuses and undermining the system. But perhaps there is also an affirmative constitutional vision of the WTO system embedded in the panel report—a vision that later could be taken up by a revitalized Appellate Body or by other institutions.
In this series of posts, I will argue that there is an affirmative constitutional vision in the Russia — Transit report, and it is a vision of WTO dispute settlement as a steward of the international trade rules. As Julian Arato and I are examining in an ongoing project, international courts take on a stewardship function when they assert a continuing interest not only in the formal application of legal rules, but also in their ongoing vitality. As stewards, in other words, courts attempt to ensure the continued relevance of the legal order they administer to contemporary political controversies, as well as the integrity of and adherence to those rules. They do so by establishing pathways for receiving political signals from affected states (embeddedness), and developing flexible legal doctrines that can be ratcheted up or down in response to those signals (responsiveness). We think that this notion of stewardship crystallizes a dynamic function of international courts that is not readily captured by existing theories of delegation, judicialization, or deference. This concept also identifies hidden costs, and can help guide the design of international courts and the transmission of legal doctrines across regimes.
The Russia — Transit panel report develops this stewardship function through three successive moves. First, it creates a distinct legal space for the panel to operate, which is no small feat given the subject-matter of this dispute. Second, it aggressively asserts a role for future panels in finding and characterizing the facts of a security-related dispute. Third, the panel announces a legal test that provides a flexible and politically sensitive framework for decision-making. The remainder of these posts will develop each of these moves, and a final post will discuss some potential implications for international economic law.
