In 1982, the contracting parties adopted a Ministerial Declaration to take seriously the consideration of 'non-economic' trade measures. On 30 November 1982, the contracting parties adopted the Decision Concerning Article XXI of the General Agreement (the 1982 Decision) which set out some basic procedural guidelines for the application of Article XXI of the GATT.
The relevant text is, as follows:
The CONTRACTING PARTIES decide that:
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Subject to the exception in Article XXI:a, contracting parties should be informed to the fullest extent possible of trade measures taken under Article XXI.
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When action is taken under Article XXI, all contracting parties affected by such action retain their full rights under the General Agreement.
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The Council may be requested to give further consideration to this matter in due course.
The Russia-Traffic in Transit dispute did not explicitly interpret the 1982 Decision. Ukraine raised Russia’s compliance with the first paragraph (DS512 report, note 210 on Ukraine’s second written submission). Inevitably, the panel declined Russia’s request to further examine the arguments pertaining to Article XXI(a) of the GATT 1994.[1]
I have a few questions regarding the second paragraph. The simplest interpretation is that Article XXI only refers to the rights under the GATT 1994. What does this mean in the context of the Russian invasion of Ukraine, and Ukraine’s invocation of the security exceptions in the GATS and the TRIPS Agreement? In other words, if WTO Members are invoking essential security more broadly, or at a minimum every security exception provision in the relevant trade agreements, is it assumed Members should construe this second paragraph more broadly? This question did not arise in the Saudi Arabia – Measures Concerning the Protection of Intellectual Property Rights panel report.
What is the scope of 'all contracting parties'? Does 'affected' only refer to those invoking Article XXI to take necessary actions to protect their essential security interests?
Curious to know people's thoughts, thanks.
[1] WT/DS512/R/Add.1, para. 2.70, p. 123.
