This is a guest post from Ben Heath, Acting Assistant Professor of Lawyering at NYU Law
This is the fourth in a series of posts that reconstructs the theory of judicial stewardship embedded in the Russia — Transit panel report on the GATT security exception. In the first post, I described the stewardship function of international courts, which I suggested was exercised by establishing pathways for courts to receive political signals from states (embeddedness), and by developing flexible legal doctrines that a court can ratchet up or down in response to those signals (responsiveness). In the prior two posts, I showed how the panel created both the legal space and the factual basis necessary to conduct this stewardship function.
In this post, I argue that the panel’s interpretation of the Article XXI security exception reflects a flexible and politically sensitive approach to the trade/security boundary. This gloss is a bit different from the prevailing takes, which have so far focused on the nuts and bolts of the panel’s interpretation, and on passages that seem to tie Article XXI closely to classic notions of military and defense security. In my view, the panel has offered a framework for administering and adjusting the security exception over time to deal with twenty-first-century threats. The panel itself, as an ad hoc body, will not be able to administer this framework, but the vision is there to be picked up in future cases.
I. The Surface Reading: A Bifurcated Approach to Security Measures
The short explanation of the panel’s approach to the security exception is that it carved up Article XXI into subjective and objective elements. Article XXI provides, in relevant part:
Nothing in this Agreement shall be construed ...
(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; …
On the panel’s interpretation, the bottom part of this provision — comprising subparagraphs (i) to (iii) — is objective and fully reviewable. The existence of a “war or other emergency in international relations,” for example, is an “an objective fact, subject to objective determination” by a WTO panel (¶ 7.77).
The chapeau part of Article XXI(b), however, is submitted to a far more deferential review, which borders on subjective. The panel decided that “it is left, in general, to every Member to define what it considers to be its essential security interests” (¶ 7.131). Moreover, in order to give effect to the term “it considers” in Article XXI(b), it was left to Russia, and not the panel, to determine “the ‘necessity’ of the measures for the protection of its essential security interests” (¶ 7.146). This largely subjective test is subject to the overarching requirement that states interpret and apply their treaty obligations in good faith, as reflected in Articles 26 and 31 of the Vienna Convention on the Law of Treaties (¶ 7.132).
This bifurcation is the headline, black-letter lesson to be drawn from the panel report. On this read, there’s a two-step approach to the security exception: one is fully reviewable by panels; and another is far more deferential, though not entirely capitulatory. As Mona Pinchus-Paulsen notes, this is a view with a long historical pedigree. But I don’t think it should be the last word on the panel’s interpretation.
II. A Deeper Reading: The Integrated, Sliding-Scale Approach
On second reading, it becomes clear that each step of the panel’s analysis weaves both objective and subjective elements, creating on the whole a far more flexible approach. For instance, the panel interprets “emergency in international relations” — a term that’s purportedly subject to objective determination — to mean a situation of: (i) armed conflict, (ii) latent armed conflict, (iii) “heightened tension or crisis,” or (iv) “general instability engulfing or surrounding a state” (¶¶ 7.76, 7.111). Although the first component — armed conflict — is an objective term in international law, (ii) through (iv) are highly malleable and undefined concepts.
In particular, the third type of emergency (“heightened tension or crisis”), if read broadly, is a tautology. It does little more than state that an emergency is a crisis. This reading is amplified in the Spanish and French versions of the report, which state that “una grave tensión internacional se refiere, por lo general, a una situación … de tensión o crisis agravada,” and that “grave tension internationale fasse référence généralement à une situation … de tension ou crise aggravée” (¶ 7.76). The panel’s approach may not be entirely open-ended: in dicta seemingly aimed at the United States, for example, the panel takes steps to choke off the ability of states to invoke mere “economic” disputes as justification for protectionist measures (see ¶¶ 7.75, 7.81). Even so, the equation of emergency with “crisis” would give future panels broad flexibility to deal with new kinds of threats and unforeseen scenarios.
The “subjective” aspect of the panel’s interpretation also contains objective elements. We are told, for example, that the principle of good faith requires member states to articulate the security interest to a sufficient level (¶¶ 7.134 — 7.135), and that the measures taken “meet a minimum requirement of plausibility in relation to the proffered essential security interests, i.e. that they are not implausible as measures protective of these interests” (¶ 7.138). The precise level of articulation and plausibility is not specified, and indeed might be deliberately kept variable, for future panels to adjust as appropriate in the circumstances.
This all comes together in the following paragraph:
7.135. What qualifies as a sufficient level of articulation will depend on the emergency in international relations at issue. In particular, the Panel considers that the less characteristic is the "emergency in international relations" invoked by the Member, i.e. the further it is removed from armed conflict, or a situation of breakdown of law and public order (whether in the invoking Member or in its immediate surroundings), the less obvious are the defence or military interests, or maintenance of law and public order interests, that can be generally expected to arise. In such cases, a Member would need to articulate its essential security interests with greater specificity than would be required when the emergency in international relations involved, for example, armed conflict.
This paragraph integrates every step of the tribunal’s analysis and weaves together both subjective and objective elements into an integrated sliding scale. This passage accepts implicitly that a state could invoke an emergency that is quite far “removed” from traditional situations of armed conflict or internal strife, and that a panel could nonetheless accept that emergency under the flexible definition adopted by the Russia – Transit report. But, in those circumstances, the future panel should require a more specific articulation of the “essential security interest” at stake, effectively ratcheting up the requirements of the good-faith principle. This will have further downstream effects, as a more precise articulation of the security interests would likely make it correspondingly harder to plausibly establish the measure’s necessity.
III. The Sliding Scale as Stewardship
This kind of sliding scale test is emblematic of a stewardship function. This kind of test allows a panel or the AB to adapt the rules to new circumstances, ensuring that they remain relevant to managing future policies that are triggered by as-yet-unknown developments. But the panel also asserts the authority to come back and re-strike the balance between deference and supervision in light of these developments — either by adjusting that balance in favor of member state discretion, or toward greater international supervision. This is neither deference nor intrusiveness: it is a dynamic approach that is capable of moving between either pole as the court deems appropriate.
Some close readers of the Russia – Transit report may note a small irony here. The panel had to adopt something like the sliding-scale test in 7.135 if it was to rule for Russia, because (as I noted in Part III) Russia did very little to articulate its precise security interests here. So the panel needed some justification for saying that, since this emergency was rather close to armed conflict, there was no need to demand much more articulation from Russia (see ¶ 7.136). In other words, there may have been some outcome-driven reasons for the panel to announce this test. Nevertheless, the effect of this test, if adopted, is to place the dispute settlement system in something like a forward-looking stewardship role.
Finally, it should be stressed that this is just a roadmap for the stewardship role in international trade. This is only one panel, which will have no continued existence beyond the instant dispute. It will be up to other panels, to the WTO Appellate Body, or to other international economic institutions, to decide whether to adopt the approach outlined by the panel in this case, and how to implement it going forward. My final post will discuss the implications of this for both trade and investment.
