Yesterday, Ambassador Katherine Tai gave the Wenger Lecture at American University's Washington College of Law. She took some audience questions afterwards, and I used the opportunity to ask her about the U.S. position on the essential security exception at the WTO. I realized there is only so much she can say publicly about issues such as this one, and I tried as hard as I could in the few seconds after I decided to ask the question to come up with a way to phrase it so that she might actually be able to answer it. Here's what I came up with:
I had a question about the national security exception at the WTO. So there have been two recent WTO panel rulings that US measures were not justified under the national security exception. You expressed some displeasure with those rulings. And as I understand it, the US is going to propose an authoritative interpretation -- I think that's been said [publicly] -- of GATT Article XXI. And I don't mean to press you too far, I know you can't tell me everything I'd want to know, but I was wondering if you could talk a little bit about when a proposal might be forthcoming here, if it hasn't already happened in Geneva, and maybe just the broad outlines of what the US proposal, what the US thinking is about what the appropriate interpretation of GATT Article XXI.
She started her answer this way:
Simon, I feel like your question is a bit of a trojan horse in referring people to your blog. ... I hope your traffic increases exponentially because of this engagement.
Busted! I've blogged about her remarks enough by now that she was well aware that whatever she said was going to end up on the blog. My Katherine Tai tag has a lot of posts in it! Her comment got a good laugh, by the way.
(For the record, I no longer have a good way to track blog traffic. There used to be a free service that did this, but it went out of business a few years ago. So unless there's so much web traffic that the site crashes, I probably won't notice anything.)
Turning to the substance, here's what she said:
To your question about when, I might pass your question on to our WTO Ambassador, Ambassador Maria Pagan. She's on the ground in Geneva ... .
In terms of what, I think that you will see, although I have seen your blog as well, and I know that you are very familiar with how we think about this, how we have argued it, and frankly, our position on the essential security exception has been very, very consistent over ... almost 80 years of our participation in the GATT and the WTO.
I guess what I would say, to elaborate a little bit more, is, back in those early days of [the GATT] being a community of countries and economies with many, many shared values, I actually think that our interpretation was the interpretation shared by GATT members. And that over time -- and I think this goes to some of our concerns about the WTO dispute settlement system, and how the WTO evolved -- we are deeply uncomfortable with the World Trade Organization ... reaching so far into sovereign decisions that we make that relate to essential security, national security. And this is a conversation that I would have with Secretary Blinken, which is, do you want me representing all of your decision-making at a hearing in Geneva to try to justify the judgments that have been made here around essential security. ...
I think that there is a real concern around the credibility of ... the WTO when it strays so far outside of the trade lane. We have worked very, very hard over many years to keep trade and economics separate from national security. And I think that in many ways you want to ensure that those lines don't get crossed in a way that undermines the missions and, frankly, the opportunities that there still are for an institution like the WTO. ...
I'm very interested to see the proposed Article XXI interpretation the U.S. comes up with. I think I have a sense of the general U.S. position here (essential security exceptions are self-judging, and parties should bring non-violation nullification or impairment claims against measures for which essential security is invoked), but how exactly will the U.S. word its proposed interpretation? How do you articulate all this in an interpretation of the existing text? And with regard to the non-violation remedy, as I've said before, I'm skeptical that it can, in its current form, provide an effective remedy here. What I'm interested in, then, is whether the U.S. just relies on existing WTO jurisprudence on the non-violation remedy, or instead whether it articulates a different approach that might offer a more effective remedy.
