Today, there are an unprecedented number of disputes at the World Trade Organization (“WTO”) involving national security. The dramatic rise in trade disputes involving national security has resuscitated debate over the degree of discretion afforded to WTO Members as to when and how to invoke Article XXI, the Security Exception, of the General Agreement on Tariffs and Trade (“GATT”), with binding effect. The goal of this article is to shed light on contemporary questions and concerns involving national security and international trade, particularly questions involving the appropriate invocation of Article XXI GATT, through careful attention to the article’s historical context. The article elucidates the diverse strategic and economic considerations that shaped the meaning of U.S. national security interests at the time when national delegations were drafting the post-war multilateral trade system, the ITO. It demonstrates how these interests, in turn, created the language, phrasing, and placement of the security exception within the ITO Charter, and details when and how this was adopted in the GATT. This article argues that analyzing internal U.S. practice into the making of Article XXI is relevant for current and future efforts to interpret the exception, thereby contributing to existing literature on Article XXI GATT. It provides the internal deliberations of U.S. officials who served as key architects of the multilateral trade system and of the ITO Charter’s security exception. Additionally, the article captures a fascinating story as to how different U.S. agencies competed to define U.S. foreign and economic policies at the time and shows how the compromises struck help to explain the making of article XXI GATT.

Deliberation of trade security is crucial for maintaining multilateral coordination and enabling governments, businesses, and individuals to navigate global economic networks. World Trade Organization (WTO) members’ mounting invocations of security-based trade restrictiveness increasingly challenge an institution that requires persistent coordination and transparency to function. WTO members need space to discuss—and disagree with—the intersection of security and trade policies. While members make use of existing WTO institutions and procedures, the exceptionalism and secrecy of security hinder notification, and review of security-rooted trade practices. This article provides a descriptive analysis and prescriptions for WTO institutional techniques for addressing members’ security-related measures daily—that is, on a routine basis, via trade policy review and WTO notification processes. It shows that the trade community already possess the tools to manage the growing issue-area of trade and security.

This paper reviews the World Trade Organization (WTO) Panel Report Russia – Measures Concerning Traffic in Transit of April 2019. It constitutes the first attempt to disentangle the legal and political aspects related to the invoked essential security interests from the economic considerations underlying the measures imposed on the transit through Russia of goods exported from Ukraine to the Republic of Kazakhstan and Kyrgyzstan. One the one hand, the panel's interpretation of Article XXI of the GATT denies Members unilateral determination over security exceptions. It further enables a pathway for future WTO panels to review possible abuses of security exceptions – a growing concern due to the rising complexity of transnational economic relations. On the other hand, our economic analysis suggests a stricter assessment of Russia's transit restrictions was necessary. In particular, it argues that the panel adopted a circular assessment when considering the plausibility of whether Russia implemented its measures for the protection of its essential security interests at a time of emergency in international relations. Ultimately, although the panel's focus on finding a diplomatic and legal path forward failed economic scrutiny a legal assessment argues that the panel's findings fit the legal design of Article XXI:b of the GATT.

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