This is a guest post from Ben Heath, Acting Assistant Professor of Lawyering at NYU Law
This series reconstructs the idea that the Russia — Transit panel report on the GATT security exception was a “constitutional moment” for the WTO. In the first post, I introduced the idea that the report envisions that future panels and the Appellate Body will perform a “stewardship function” with respect to the trade/security boundary. In Parts II and III of this series, I identify two critical moves made in the panel report, which are essential preconditions to asserting this kind of function. Yesterday, I argued that the panel’s controversial decision to avoid saddling Russia with responsibility for precipitating the Ukraine crisis was the first step in developing this stewardship function.
In this post, I focus on the panel’s second move in its assertion of a stewardship role over security matters, which was to aggressively assert its authority to find and characterize the relevant facts. In establishing an “emergency in international relations,” the Russia — Transit panel took a series of steps that purported to maximize its own powers as a factfinder and establish its relative autonomy from the parties’ own cramped litigation strategies. These steps had the effect of further consolidating the panel’s authority to interpret the politically sensitive provisions of GATT Article XXI, as well as to develop the factual record on highly contentious political matters.
I. An Open Secret
As the Russia — Transit panel recites the parties’ exchanges on the application of Article XXI (¶¶ 7.111 — 7.119), one gets a sense of barely concealed frustration. It began with Russia’s first written submission, in which Russia explained that it did not want to present any details regarding the “emergency in international relations” that it claimed existed between itself and Ukraine (¶ 7.112). Ukraine responded in kind, asserting that it was “left in the dark” about what the emergency in this case really was (n.192).
Once the case moved to oral hearings, this reticence from both parties took on an element of theater. Russia posed to the panel a “hypothetical question”: suppose that there is internal unrest within a country bordering a WTO member; this unrest occurs near the border; the neighboring country loses control over that border; refugees begin moving into the member’s territory; and the neighbor and/or third countries impose sanctions against the member that are not authorized by the United Nations. Would that situation, Russia asked, amount to an “emergency in international relations”? (¶ 7.114). When asked by the panel how closely its hypothetical mirrored real life, Russia demurred (¶ 7.115).
Russia then referred the panel to a report prepared by Ukraine for its 2016 Trade Policy Review (TPR) at the WTO. This report, Russia said, explained in Ukraine's own words “what is going on and how real these whole hypothetical questions are” (¶ 7.115). This report stated that Ukraine’s economic performance in 2014–2015 had been adversely affected by “the military conflict in the east,” and by “the annexation” of the Crimea. It appears that this reference to Ukraine’s TPR was as clear and explicit as Russia’s deliberately mysterious litigation strategy was willing to get.
This put the panel in a difficult position. It was clear that no one was really “in the dark” about what was going on: the situation between Russia and Ukraine had since 2014 been a high-profile clash marked by the outbreak of violence, invasion and purported annexation of one party’s territory by another, and the widespread condemnation of third-party states, including with the imposition of economic sanctions. But the panel was not being given these facts to work with.
II. The Panel’s Decision
The panel decided that, notwithstanding the obfuscation, Russia had given it enough information to find that an emergency in international relations did exist as of 2014. It did so over the objections of Ukraine and against the arguments of some third parties, including the EU, which had argued that the defense could be rejected simply by virtue of Russia’s failure to meet its burden. In reaching this result, the panel took four steps that increasingly pushed the boundaries of a panel’s factfinding authority in these circumstances.
First, the panel deliberately avoided assigning the burden of proof to Russia, or saying anything at all about respective burdens. In GATT Article XX jurisprudence, the burden of establishing an affirmative defense generally rests on the party asserting it (see, e.g., US — Wool Shirts and Blouses, at 14). But the panel had decided that Article XXI had a “different character” from that of Article XX (¶ 7.98(a)), perhaps suggesting it was not necessarily subject to the same analysis. By avoiding any assignment of the legal burden here, the panel attempts to head off the charge that its subsequent efforts to characterize the emergency are ultra vires.
Second, the panel wrung every fact it could from Russia’s own representations. Although Russia had said very little about the purported emergency, it had stated that the emergency involved Ukraine, given some sense of the timeframe, and indicated that the emergency was publicly known. The panel made maximum use of each point (see ¶ 7.112, 7.119).
Third, the panel accepted Russia’s invitation to rely on Ukraine’s TPR report (¶ 7.118). This was not straightforward, since the Trade Policy Review Mechanism itself states that the reports are not “intended to serve as a basis for the enforcement of specific obligations under the Agreements or for dispute settlement procedures.” Historically, panels have declined to attach any importance to panel reports or to take them into account in the context of dispute settlement, and the Appellate Body in US/Canada – Continued Suspension has warned of actions that would have a “chilling effect” on statements in DSB meetings, committee meetings, or the TPRM. (One panel report, however, has used TPRM discussions to determine whether certain measures can fall under the “public morals” exception – see US – Gambling, para 6.471.) Despite these warnings, the panel found that it could use the reports to further identify the factual situation, so long as it was not using them to determine legal liability. In making this fine distinction, the panel appears to have been pushing the boundaries with respect to its factfinding authority.
Fourth, to fill in any gaps in the record, the panel reached outside the WTO to refer to certain General Assembly Resolutions that had been placed in the record by Ukraine. These resolutions referred explicitly to the “territorial integrity” of Ukraine, to Russia’s obligations regarding the use of force under Article 2 of the UN Charter, to the “temporary occupation” and purported “annexation” of the Crimea and the city of Sevastopol, and to Russia’s obligations under the Fourth Geneva Convention as an “occupying power.” (¶ 7.8). These references ultimately proved critical in the panel’s finding that the situation between Russia and Ukraine as involving “armed conflict,” and therefore as an emergency in international relations (¶¶ 7.122 — 7.123). This then set the stage for the panel’s ultimate finding that Russia had properly invoked the security exception.
III. Stewardship and Factfinding
The panel’s approach to the existence of an emergency, in my view, reflects an aggressive move. This is not to say that panels don’t ordinarily have broad factfinding authority to seek information relevant to the dispute; Article 13 of the DSU strongly indicates that they do. But in this particular context the panel’s ordinary authority was, or could have been, limited by: the parties’ respective burdens and their own refusal to adduce evidence on the security situation; GATT Article XXI(a), which entitles a party to withhold information on essential-security grounds; the specific principles and jurisprudence around TPRM reports; and the panel’s own decision to avoid passing upon the parties’ respective international responsibility or the legal character of the situation between Russia and Ukraine.
It would be tempting to read the panel’s decision, which maneuvers around all of these limitations, as bending over backwards to accommodate Russia’s strategy of maximum mysteriousness. But there are at least three reasons not to treat this simply as a deferential move.
First, here we see the panel pushing the outer boundaries of its factfinding powers in a case with huge systemic implications and deep political sensitivities. The panel’s recourse to Ukraine’s TPR reports is, as noted above, potentially pushing the boundaries of what should be acceptable according to the rules and prior cases. The recourse to General Assembly resolutions—contested ones, at that—to fill in the factual record is itself striking and, in the context, significantly widened the universe of available factual material.
Second, by using these materials, and in particular the UNGA resolutions, the panel uses for its factual analysis the very materials that it said were irrelevant to its legal conclusions. These resolutions are replete with references to concepts from the law of war, and they at least raise serious concerns as to the legality of Russia’s actions. By holding itself open to these materials as matters of fact, the panel is refusing to allow its jurisdictional limitations to affect its interpretation and application of the security exception. At the same time, the panel is, at least formally, insisting that it is not relying on or confirming the legal conclusions of these other bodies, though its statement in paragraph 7.122 that the situation between Russia and Ukraine “involv[es] armed conflict” may cross this boundary.
Third, and finally, the panel is asserting its relative autonomy vis-à-vis the parties to the dispute. Notably, both Russia and Ukraine offered the panel a way out of the case whereby it could avoid issuing an authoritative statement on what “emergency in international relations” means: it could either have declared the whole provision self-judging (Russia’s preference), or found that Russia had not sufficiently articulated the facts underlying its security defense (Ukraine’s argument). The parties, further, made it tempting to take one of these offramps, given their own tight-lipped approach to what the emergency really was. The panel nonetheless rejected both approaches, suggesting for future cases that the parties cannot avoid the interpretation of a sensitive treaty provision simply through clever pleading.
For these reasons, this was a strong move, which can’t be easily be described as deferential to Russia’s case. Indeed, the United States in its comments on the report has already singled out this element of the panel’s decision for criticism. Together with its first move, the panel has created the legal space and the factual basis for announcing a flexible and politically sensitive test for the application of the security exception, which envisions the WTO disputes system as a steward of the institution. This flexible test will be the subject of my next post.
