This is a guest post from Ben Heath, Acting Assistant Professor of Lawyering at NYU Law
This post is the last in a series to analyze the Russia — Transit panel report on the GATT security exception. In the first post, I introduced what Julian Arato and I are calling the “stewardship function” of international courts: that is, their role in ensuring the continued relevance of, adherence to, and integrity of a legal order. The second and third posts showed how the Russia — Transit report cleared the way for this stewardship function by carving out the legal space for panels to judge trade issues that are embedded in sensitive political disputes, and by aggressively asserting the factfinding authority of trade panels. The fourth post argued that the sliding-scale test introduced by the panel in this report is designed to be flexible, politically sensitive, and managed over time in a way that embodies this idea of stewardship.
This final post focuses on the implications of the stewardship function for security-related disputes at the WTO and elsewhere. First, adopting a kind of judicial stewardship function over the trade/security boundary makes a good degree of sense in the long run, notwithstanding the likelihood of backlash in the near term. But, second, judicial stewardship depends on an institutional context that may be evaporating in the trade regime, and is wholly lacking in investment law. This creates a significant risk that the principles announced in the Russia — Transit report could be deformed through future judicial borrowing.
I. Stewardship and the Future of Security Governance
I see at least three potential benefits to the panel’s flexible and politically sensitive approach to security governance. Only the first of these benefits is directly implicated by the language of the panel’s report. The other two are more long-term speculations as to how the vision embedded in the report could be developed and applied in future cases. Furthermore, all three of these benefits are unlikely to materialize in the short run, given that powerful states seem unlikely to permit the WTO system to develop the authority necessary to fully implement this stewardship function.
First, as I have argued elsewhere, the economic order is going to endure increasing pressure as an ever-widening array of issues comes under the national security umbrella. Consider two examples: cybersecurity, which has increasingly risen to prominence in the national security discourse; and climate change, which is also recently been the subject of significant legal and political discourse around security and emergency. Each of these issues presents a potentially serious threat with authentic connections to national and international security, while at the same time being prone to abuse for protectionist motives. Each threat also requires some work to fit into the logic of Article XXI of the 1947 GATT. The sliding scale approach developed by the Russia — Transit panel could provide enough adjustable levers to allow in these new threats, while still closely scrutinizing new security measures for disguised restrictions on trade.
Second, the flexible doctrines announced by the panel could provide some opportunity for cultivating what Jeff Dunoff, channeling Alexander Bickel, has called the “passive virtues.” These are doctrines, like justiciability (standing, ripeness, etc.), which allow courts to manage their legitimacy by controlling “whether, when, and how much to adjudicate.” The sliding scale announced by the panel in this case could serve a similar function. It is sufficiently flexible to allow for a politically sensitive and variable standard of review, for the recovery of a notion of institutional balance in the face of deeply contested political/security issues, or possibly for catalyzing good-faith negotiation among treaty parties about cybersecurity or other difficult and currently under-legalized issues. In the long run, these moves could help tribunals and panels avoid charges of overreach, even as they eschew the idea that the security exception is entirely “self-judging.”
Third, and most speculatively, this approach in the long run could help recover the channeling function that, as Tim Meyer notes, Article XXI is particularly bad at fulfilling. “Channeling,” as used here, refers to the ability of exceptions like antidumping, safeguards — or envisioned rules for social dumping or economic development — to funnel the protectionist impulses of domestic coalitions through a framework that imposes some procedural and substantive requirements to prevent abuse. A wide-open security exception, Meyer notes, is ill-suited to performing this function, and provides a readymade legal justification for coalitions of industry and principled actors (environmentalists, human rights advocates, or those concerned about economic opportunity) to seek protectionist trade measures. The sliding-scale approach to Article XXI, by contrast, could enable panels to use the good-faith obligation as a basis for investigating the process by which such measures were adopted, demand some minimum degree of fairness, and screen for abuse.
This is not to say that the stewardship approach to security is necessarily a welcome one. The panel’s approach is highly flexible and indeterminate, and it delegates a significant degree of discretion to the judicial mechanism of the WTO. Ultimately, if the stewardship role is to be sustained, it will require panels to retain a significant degree of authority over security matters, aggressively assert their factfinding role, and continually develop and refine legal doctrines beyond what may be necessary for the resolution of a particular case. We have already seen the United States respond extremely critically to all three aspects of the Russia — Transit panel report. And other states, while perhaps more comfortable with this result, may not be willing to accept the full implications outlined above.
This is why, in my writing, I’ve been more optimistic in the near term about political settlements, rather than judicial decisions, that could restore institutional balance and enable the political bodies of the WTO to take on more of this stewardship role. (Robert McDougall has published a helpful guide to some of these policy options.) Nevertheless, the panel’s report will continue to provide a potential roadmap for future courts and tribunals to develop and implement this stewardship function.
II. Stewardship, Transplanted
The other problem with the vision of stewardship in the Russia — Transit report is that it lacks the necessary institutional context. Stewardship, as Julian Arato and I are coming to understand it, works when courts can receive political signals through stable channels, can develop legal doctrines that are responsive to those signals, and can manage this process over time. This requires a relatively stable institutional context, and, as Julian explored in his critique of the margin of appreciation in investment law, is ill-suited to ad hoc dispute settlement, where panels and tribunals have no continuing existence.
Here, we are working with a report of a single WTO panel, not the Appellate Body. This report, moreover, has already been adopted and will not be appealed. Moreover, the future of the WTO Appellate Body itself is deeply uncertain, raising the possibility that future WTO disputes will be resolved, if at all, by a loosely connected set of ad hoc panels, which are not overseen by any centralized judicial body. In short, while the panel’s approach in this case has an affinity with the “selective judicial minimalism” that Rob Howse describes in his study of the Appellate Body, it lacks the centralized institution to manage this selectivity. This increases the risk that future panels will partially implement passages or doctrines from the Russia — Transit report, in ways that distort the single, integrated approach envisioned by the panel.
These risks, moreover, are likely to be amplified once the report starts being used in investor-state dispute settlement, which it almost certainly will. In this context, there is no centralized institution that can engage in a similar kind of responsive give-and-take with political bodies. This may change if the proposed Multilateral Investment Court becomes a reality. Even there, however, current proposals for the MIC envision only a limited institutional structure for deliberation and give-and-take between political and judicial bodies. Moreover, existing investment treaties contain a wide variety of security exceptions, many of which lack language analogous to Article XXI(b)(i)-(iii), which provided the critical textual hook for the panel’s sliding-scale approach in this case.
All of this raises the concern that the decision of the Russia – Transit panel will become distorted as it is dislodged from its institutional context and pulled apart by litigants in other fora. For this reason, although the panel’s decision might be considered a sensible one in this political and institutional setting, it remains to be seen how well the concepts announced here will “travel” to other fora.
