Trade lawyers Stephen Kho, Yujin McNamara, Sarah Kirwin, and Brooke Davies have a new working paper published by the Graduate Institute, entitled "The Conundrum of the Essential Security Exception: Can the WTO Resolve the GATT Article XXI Crisis and Save the Dispute Settlement Mechanism?" This is from their conclusion:
While U.S. concerns about the treatment of national security issues by the WTO is valid and should be discussed, it may be unwise to pressure Members to adopt an erroneous interpretation as a precondition to accepting any resolution to the WTO dispute settlement problem. As demonstrated in this article, the U.S. interpretation of GATT Article XXI as wholly self-judging is unsupported by the text, context, object and purpose, and negotiating history of Article XXI, as well as state practice. Following such an interpretation would give countries license to evade their WTO obligations under the guise of national security, a clearly undesirable outcome for all Members. Instead, WTO Members should continue to engage constructively and inclusively to consider solutions that are either supported by existing text of GATT Article XXI, or that can lead to successful renegotiations of the existing text.
