F C - US T WTO T - N S N - V M: Legal Studies Paper No. 2021-25

Legal Studies Paper No.
2021-25
2022 Mich. St. L. Rev ___ (forthcoming 2022)
FITTING CHINA-US TRADE INTO WTO

TRADE LAW – NATIONAL SECURITY
AND NON-VIOLATION MECHANISMS
Professor Justin Hughes
Electronic copy available at: https://ssrn.com/abstract=3941545

FITTING CHINA–US TRADE INTO WTO TRADE
LAW–NATIONAL SECURITY AND NON-
VIOLATION MECHANISMS
Justin Hughes
2022 MICH. ST. L. REV.
INTRODUCTION ................................................................................... 2
I. THE POST-2016 CHINA–US TRADE RELATIONSHIP ................... 10
II. GATT ARTICLE XXI AND SOME HYPOTHETICAL TRADE
RESTRICTIONS ............................................................................ 18
A. GATT Article XXI ............................................................. 18
B. Seven Hypothetical China–U.S. Trade Restrictions .......... 24
III. INTERPRETATION OF ARTICLE XXI IN RUSSIA – TRAFFIC IN
TRANSIT AND THESE HYPOTHETICALS ....................................... 27
A. A Coda—What the Americans Intended in 1947 .............. 36
B. Russia – Traffic in Transit and U.S. Essential Security
Interests .............................................................................. 37
C. Russia – Traffic in Transit and “Emergencies in
International Relations” ..................................................... 39
IV. DECADES OF DISCUSSION ON ARTICLE XXI—AND WHAT IT
MIGHT SAY ABOUT THESE SCENARIOS ..................................... 42
A. Scenarios of Banning Imports for Safety Reasons............. 43
B. Other “War or Other Emergency” Scenarios ..................... 45
C. Scenarios of Strategic Import Restrictions Under XXI(b) . 47
D. Scenarios of Strategic Export Restrictions Under
XXI(b)(iii) .......................................................................... 51
E. Total Relationship Disputes ............................................... 55
V. CHINA’S RIGHT TO A NON-VIOLATION IMPAIRMENT CLAIM AND
A ‘WAIVER’ FOR CHINA–U.S. TRADE ........................................ 58
A. China’s Responsive Article XXIII Claim .......................... 58
B. A Comprehensive Waiver for China–U.S. Trade? ............ 65
CONCLUSION ..................................................................................... 67
 Honorable William Matthew Byrne, Jr. Professor of Law, Loyola Law

School, Loyola Marymount University; Visting Professor, Faculty of Law, Oxford
University. My thanks to Julian Arato, Daniel Chow, Kathleen Clausse, and
Deborah Pearlstein for helpful comments on drafts of this project. Also thanks to
Ignacio Borrajo Iniesta, Josyane Couratier, Christophe Lemoine, José Ramón López
de León, and Maria Gracia Rubio for comments. The remaining errors are the
exclusive intellectual property of the author. Copyright © 2021 by the author.

2 Michigan State Law Review
INTRODUCTION
During the four years of the Trump presidency, there was much
Sturm und Drang over the destruction of the rules-based international
trading system. That system—first as the General Agreement on
Tariffs and Trade (GATT), then as the World Trade Organization
(WTO), as well as hundreds of preferential trade agreements among
countries—has been one of the centerpieces of the post-World War
II order.1 The Trumpian tempest battered these institutions, but did
not break them. Even the Trans-Pacific Partnership survived—
without the United States and with a different name.2
But the institutions and norms of international trade are
questioned in 2022 in a way they were not in 2000, 2010, or 2015.
The received wisdom about trade no longer looks as wise as it once
did. Broadly raising tariffs on Chinese imports did not produce
calamity; if it produced some higher prices, the needle on the
consumer price index hardly oscillated.3 The COVID-19 pandemic
has forced a hard look at the balance between maximally-efficient
global supply chains and national capacity for essential products.4 An
1. The foundational agreement for the “GATT” system being the General
Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S. 194
[hereinafter GATT].
2. According to the Australian Government, the renamed Comprehensive
and Progressive Agreement for Trans-Pacific Partnership “is a separate treaty that
incorporates, by reference, the provisions of the Trans-Pacific Partnership (TPP)
Agreement (signed but not yet in force), with the exception of a limited set of
suspended provisions.” See Comprehensive and Progressive Agreement for Trans-
Pacific Partnership (CPTPP), AUSTRALIAN GOV’T DEP’T OF FOREIGN AFFS. &
TRADE, https://www.dfat.gov.au/trade/agreements/in-force/cptpp/comprehensive-
and-progressive-agreement-for-trans-pacific-partnership (last visited Apr. 11, 2022).
3. The Consumer Price Index rose 2.1% in 2016, the last year before the
Trump Administration’s confrontation with China over trade. In 2017, 2018, and
2019, the Consumer Price Index rose 2.1%, 1.9%, and 2.3% respectively. The index
fell in 2020 (to 1.4%) in the wake of the coronavirus pandemic. See BUREAU OF LAB.
STAT. U.S. DEP’T OF LAB., NEWS RELEASE (Jan. 2017).
4. See, e.g., Travis J. Tritten, Defense Supply Chain Fixes Coming from
House Task Force by June, BLOOMBERG NEWS (Mar. 10, 2021, 12:59 PM),
https://news.bloomberglaw.com/tech-and-telecom-law/defense-supply-chain-fixes-
coming-from-house-task-force-by-june [https://perma.cc/FBG7-WCSM]; Chris
Megerian, With Computer Chips Scarce, Biden Orders Supply Chain Review, L.A.
TIMES (Feb. 24, 2021, 4:51 PM), https://www.latimes.com/politics/story/2021-02-
24/biden-to-order-review-of-critical-u-s-supply-chains [https://perma.cc/DN7Z-
LGZG]; Neil Irwin, It’s the End of the World Economy as We Know It, N.Y. TIMES
(Apr. 16, 2020), https://www.nytimes.com/2020/04/16/upshot/world-economy-
restructuring-coronavirus.html [https://perma.cc/L8RS-E7YS] (noting that the
COVID-19 pandemic “accelerate[s] [this] type of thinking . . . that there are critical

Hughes Fitting China–US Trade Into WTO Trade Law 3
international trading system that was designed to be insensitive to

anything but economic efficiency now seems—to many Americans
and Europeans—troublingly out of step with saving the planet’s
climate, standing up for human rights in other countries, and
combatting income inequality.
There are already ambitious efforts to reimagine the
international trading system.5 Instead of questioning whether the
United States needs to get out of the WTO, we should be imagining
how we can get into a new world trade order—one that builds human
rights, representative democracy, income inequality, environmental
protection, and the struggle against climate change into the terms of
trade. If done prudently and judiciously, creating a new world trade
order is a project that will probably take longer than any GATT or
WTO round before.
In the meantime, among the many challenges the United States
faces in international trade, none loom larger than the China–US
relationship.
The United States has been running trade deficits with China
since at least 1985, but those deficits mushroomed with China’s
entry into the WTO in 2001. In 1999, that trade deficit was $68
billion dollars—by 2003, a couple years into China’s WTO
membership, the deficit had doubled to $124 billion.6 The United
States’ trade deficit with China peaked in 2018 at $418 billion
dollars, dropped in 2019 and 2020 both from the Trump
technologies, critical resources, reserve manufacturing capacity that we want here in

the U.S. in case of crisis”). China has the same view, but perhaps for different
reasons. See Michael Schuman, The Undoing of China’s Economic Miracle, THE
ATLANTIC (Jan. 11, 2021), https://www.theatlantic.com/international/archive
/2021/01/xi-jinping-china-economy-jack-ma/617552/ [https://perma.cc/D4XH-
XZ85] (“China needs ‘independent, controllable, safe, and reliable,’ supply chains,
Xi [JinPing] said in an April speech, with ‘at least one alternative source for key
products and supply channels, to create a necessary industrial backup system.’”).
5. For example, proposals at the European Commission and in the U.S.
Congress to fight climate change by imposing additional tariffs on imported goods
with high carbon output. See Kate Abnett & Susanna Twidale, EU Proposes World’s
First Carbon Border Tax for Some Imports, REUTERS (July 14, 2021, 10:09 AM),
https://www.reuters.com/business/sustainable-business/eu-proposes-worlds-first-
carbon-border-tax-some-imports-2021-07-14/ [https://perma.cc/4GG6-KW94]; Lisa
Friedman, Democrats Call for a Tax on Imports from Polluting Countries, N.Y.
TIMES (July 14, 2021), https://www.nytimes.com/2021/07/14/climate/border-carbon-
tax-united-states.html [https://perma.cc/G66S-VFP9].
6 See Foreign Trade: Trade in Goods with China, U.S. CENSUS BUREAU,
https://www.census.gov/foreign-trade/balance/c5700.html (last visited Apr. 11,

2022) [https://perma.cc/QVL8-QWA6].

administration tariffs and the COVID-19 pandemic, and trended

upwards in 2021. The cumulative U.S. trade deficit with China as of
early 2020 was $5.5 trillion, $5.3 trillion since China entered the
WTO.7 No other U.S. bilateral trading relationship begins to
approach this imbalance. On the positive side, that transfer of wealth
has underpinned the rise of a middle class, upper middle class, and
uber rich in nominally socialist China.8 On the negative side, it has
helped fund a massive expansion of Chinese military capabilities
matched with Beijing’s lebensraum policy in the South China Sea.9
Meanwhile, economists are finally now accepting what
common sense told everyone else long ago: cheap imports from
China caused massive losses of American manufacturing jobs.
American manufacturing jobs moved up and down in the 1980s and
1990s,10 but after China’s entry into the WTO, there was a steep loss
of five million jobs in U.S. manufacturing. Not all those lost jobs are
because of production moving to China, but it is generally thought
that anywhere from 1.2 to 3.7 million lost jobs are attributable to
imports from China.11 It is remarkable that it took so long for there to
7 See Terry Jeffrey, US Has Run Up $5.5 Trillion in Trade Deficits with China,
TOWNHALL (Apr. 29, 2020 12:01 AM), https://townhall.com/columnists/terryjeffrey/
2020/04/29/us-has-run-up-55-trillion-in-trade-deficits-with-china-n2567824
[https://perma.cc/JN3E-EC3Y]; Foreign Trade, supra note 6.
8
See generally Dominic Barton, Yougang Chen & Amy Jin, Mapping China’s
Middle Class, MCKINSEY Q. (June 1, 2013), https://www.mckinsey.com/
industries/retail/our-insights/mapping-chinas-middle-class [https://perma.cc/9KV3-
WVQG].
9 See generally OFF. OF THE SEC’Y OF DEFENSE, MILITARY AND SECURITY
DEVELOPMENTS INVOLVING THE PEOPLE’S REPUBLIC OF CHINA (2021); China

Defends Sweeping Maritime Claims After US Criticism, ASSOCIATED PRESS INT’L,
(Jan. 13, 2022), https://apnews.com/article/china-beijing-international-law-south-
china-sea-70b7c83936f7f59aaf9b1baba572bce5 [https://perma.cc/DK3P-9MEJ].
10 For raw numbers, see Employment, Hours, and Earnings from the Current
Employment Statistics Survey, U.S. BUREAU OF LAB. STATS., https://data.bls.gov/cgi-

bin/surveymost?ce [https://perma.cc/6PMV-NZAM] (choose “Manufacturing
Employment” from the list; then Click “Retrieve data”; then choose “1980” in the
“from” box and “1999” in the ““to” box; then click “go”).
11 See Justin R. Pierce & Peter K. Schott, The Surprisingly Swift Decline of US
Manufacturing Employment, 106 AM. ECON. REV. 1632, 1632 (2016); Kerwin Kofi
Charles et al., The Transformation of Manufacturing and the Decline in U.S.
Employment, (Nat’l Bureau of Econ. Rsch., Working Paper No. 24468, 2018),
https://www.nber.org/system/files/working_papers/w24468/w24468.pdf
[https://perma.cc/W96V-BLA3]; David H. Autor et al., The China Syndrome: Local
Labor Market Effects of Import Competition in the United States, 103 AM. ECON.
REV. 2121, 2121 (2013); Paul Krugman explains:
Does the surge in the trade deficit explain the fall in employment? Yes, a
lot of it. A reasonable estimate is that the deficit surge reduced the share of

be even a resemblance of political responsibility for this impact on

the American middle class.
If nothing else, Donald Trump forced D.C. policy circles to
accept that engagement with China from the late 1990s onward has
not produced the outcomes sought.12 As of 2022, the consensus in
Washington for a hardline against Chinese policies had become quite
clear13 and was often alloyed with (understandable) self-criticism that
manufacturing in GDP by around 1.5 percentage points, or more than

10%, which means that it explains more than half the roughly 20% decline
in manufacturing employment between 1997 and 2005.
Paul Krugman, What Economists (Including Me) Got Wrong About Globalization,
BLOOMBERG OP. (Oct. 10, 2019, 5:00 AM) (emphasis added),
https://www.bloomberg.com/opinion/articles/2019-10-10/inequality-globalization-
and-the-missteps-of-1990s-economics [https://perma.cc/VQX3-V2XL]; see also
Robert E. Scott, Trump’s ‘Blue-Collar Boom’ is Likely a Dud, ECON. POL’Y INST.
(Feb. 4, 2020, 2:29 PM), https://www.epi.org/blog/trumps-blue-collar-boom-state-
of-the-union/ [https://perma.cc/RG8P-6WNV] (“In addition, more than half of the
U.S. manufacturing jobs lost in the past two decades were due to the growing trade
deficit with China, which eliminated 3.7 million U.S. jobs, including 2.8 million
manufacturing jobs, between 2001 and 2018. In fact, the United States lost 700,000
jobs to China in the first two years of the Trump administration . . . .”).
12 As Kevin Rudd, former Prime Minister of Australia, put it “[f]or all the
eccentricities and flaws of the Trump administration, its decision to declare China a
strategic competitor, formally end the doctrine of strategic engagement, and launch a
trade war with Beijing succeeded in making clear that Washington was willing to
put up a significant fight.” Kevin Rudd, Short of War, 100 FOREIGN AFFS. 58, 69
(2021).
13 See, e.g., Bernie Sanders, Washington’s Dangerous New Consensus on China,
FOREIGN AFFS. (June 17, 2021), https://www.foreignaffairs.com/articles/china/2021-

06-17/washingtons-dangerous-new-consensus-china [https://perma.cc/53LB-
EGCW] (noting “a fast-growing consensus is emerging in Washington that views
the U.S.-Chinese relationship as a zero-sum economic and military struggle” and
“[i]t is quite remarkable how quickly conventional wisdom on this issue has
changed”); Yeling Tan, How the WTO Changed China, 100 FOREIGN AFFS. 90, 91
(2021) (“WTO membership, the new consensus goes, has allowed China access to
the American and other global economies without forcing it to truly change its
behavior, with disastrous consequences for workers and wages around the world.”);
Eli Stokols & Don Lee, In First Call with Xi, Biden Looks to Reset U.S.-China
Relationship, L.A. TIMES (Feb. 10, 2021, 6:17 PM),
https://www.latimes.com/politics/story/2021-02-10/biden-has-first-call-with-xi-of-
china [https://perma.cc/4ANR-Z4WX] (reporting that President Biden says U.S. will
have “extreme competition” with China but is “committed to pursuing practical,
results-oriented engagements [with China] when it advances the interests of the
American people and those of our allies”); John R. Bolton, Trump Didn’t Think, or
Act, Strategically About China. Biden Needs to do Both., WASH. POST (Jan. 24,
2021), https://www.washingtonpost.com/opinions/2021/01/24/trump-didnt-think-or-
act-strategically-about-china-biden-needs-do
both/?utm_campaign=wp_todays_headlines&utm_medium=email&utm_source=ne

American leadership in the 2000s and 2010s was naïve about China
and ignored Beijing’s mercantilism for too long.14
In 2018, Ken Hassett, then chairman of the White House
Council of Economic Advisers, suggested that the United States and
other countries might kick China out of the WTO; in his own words,
“do we continue to let them stay in the WTO?”15 In 2018, the Wall
Street Journal was still exploring the idea of “threaten[ing] China
with expulsion from the WTO.”16 On the left flank of the political
spectrum, there were over 31,000 signatures on a petition at
Change.org to “Kick China out of the World Trade Organization” for
slave labor and “countless animal and human rights violations.”17
wsletter&wpisrc=nl_headlines [https://perma.cc/R59B-DZM3] (discussing mistaken

“premise that economic reform would produce increased domestic freedom” in
China); Michael Schuman, The World is Splitting in Two, THE ATLANTIC, (Mar. 28,
2022), https://www.theatlantic.com/international/archive/2022/03/5kraine-war-
china-covid-lockdowns/629401/ [https://perma.cc/JR3F-T82Q] (describing “a shift
that is taking the world in a dangerous direction, splitting it into two spheres, one
centered on Washington, D.C., the other on Beijing.”).
14 See, e.g., Marco Rubio, China is Exploiting U.S. Capital Markets and Workers.
Here’s What Biden Should Do., WASH. POST (Jan. 28, 2021),
https://www.washingtonpost.com/opinions/global-opinions/marco-rubio-biden-
china-us-markets/2021/01/28/67038abc-6191-11eb-9061-07abcc1f9229_story.html
[https://perma.cc/G5VD-LVU3] (criticizing “the naïve consensus that allowed
China’s rise at America’s expense”); Marco Rubio, China is Complicit in Russia’s
War on Ukraine, WASH. POST (Mar. 18, 2022),
https://www.washingtonpost.com/opinions/2022/03/18/rubio-china-complicit-russia-
ukraine/ [https://perma.cc/J3YX-THLT] (“It is naïve and dangerous to believe the
United States has ‘shared interests’ with a genocidal communist regime.”). See
generally Justin Hughes, Globalization, Revising the Terms of Trade, and the Return
of ‘History,’ 14 OHIO ST. BUS. L.J. 15 (2020) (describing the national security
concerns surrounding China’s economic rise).
15 See Pete Kasperowicz, White House: We May Have to Kick China Out of the
WTO, WASH. EXAM’R (Aug. 13, 2018, 9:02 AM),

https://www.washingtonexaminer.com/news/white-house-we-may-have-to-kick-
china-out-of-the-wto [https://perma.cc/VQ26-LTEF] (reporting that during a Fox
Business interview, Hassett asked, “do we continue to let them stay in the WTO”);
Andrew Walker, US Adviser Hints at Evicting China from WTO, BBC NEWS (Nov.
21, 2018), https://www.bbc.com/news/business-46280318 [https://perma.cc/6JKJ-
PJ4B] (reporting that during a BBC interview, Hassett floated the idea of “evicting
China” from the WTO).
16 Greg Ip, For U.S. to Stay in WTO, China May Have to Leave, WALL ST. J. (Aug.
22, 2019, 7:00 AM), https://www.wsj.com/articles/for-u-s-to-stay-in-wto-china-

may-have-to-leave-1534935600 [https://perma.cc/R2U3-QVG2].
17 Kick China out of the World Trade Organization, CHANGE.ORG,
https://www.change.org/p/donald-j-trump-kick-china-out-of-the-world-trade-
organization [https://perma.cc/8BRA-T6V7] (last visited Apr. 11, 2022).

Of course, it is not that simple (and most of the commentators

quoted in these stories know that). The WTO is not a high school
debate club. The WTO has provisions on voluntary withdrawal, but
there is nothing in the WTO rules to allow a group of its members to
“evict” another country.18 In 2019, Rachel Brewster suggested
alternatively that the “United States should frame its trade
discussions with China as being outside of current WTO issues.”19
But how might that be done?
Measures that would otherwise be inconsistent with WTO
obligations are permissible within the WTO framework if they can
be fitted within different exceptions or procedures; put another way,
there are rule-based methods within the WTO framework to
“rebalance” trade relationships and take the discussion “outside”
WTO constraints. A U.S. administration committed to a tough policy
on China but also committed to multilateral institutions and
international rule of law needs to at least attempt formal, multilateral
procedures within WTO as part of its strategic engagement with
China.20
The best known and most developed exceptions to WTO trade
disciplines are those under GATT Article XX to protect human
health, some environmental concerns, and public morals. The
breadth of those exceptions has expanded over time, and we might
expect further expansion as more and more countries aggressively
address climate change. But separate from Article XX, there are the
“security exceptions” in GATT Article XXI. 21 Article XXI has
18 See Marrakesh Agreement Establishing the World Trade Organization art. XV(1),
Apr. 15, 1994, 1867 U.N.T.S. 154 [hereinafter Marrakesh Agreement] (“Any
Member may withdraw from this Agreement. Such withdrawal shall apply both to
this Agreement and the Multilateral Trade Agreements and shall take effect upon the
expiration of six months from the date on which written notice of withdrawal is
received by the Director-General of the WTO.”).
19 Rachel Brewster, Analyzing the Trump Administration’s International Trade
Strategy, 42 FORDHAM INT’L L.J. 1419, 1421 (2019) (“The United States should
frame its trade discussions with China as being outside of current WTO issues.
Taking the discussion out of current trade agreements provides for more negotiating
freedom and preserves the integrity of the current multilateral framework.”).
20 See, e.g., Justin Hughes, The Charming Betsy Canon, American Legal Doctrine,
and the Global Rule of Law, 53 VAND. J. TRANSNAT’L L. 1147, 1193 (2020).
21 There are other national security exceptions peppered throughout the WTO
Agreements, including Article 73 of the TRIPS Agreement (which is an carbon copy

of GATT Article XXI), Article 2.2 of the Agreement on Technical Barriers to Trade,
Article III(1) of the plurilateral Government Procurement Agreement, and Article 3
of the Agreement on Trade-Related Investment Measures, which simply carries over
the GATT exceptions.

unique language that allows defections from WTO trade disciplines

that a country itself “considers necessary” to protect “essential
security interests.”22 Perhaps this unique self-judging formulation to
national security exceptions kept debate about Article XXI limited
and formal dispute about it nonexistent during the first seventy years
of GATT/WTO.
In the past, commentators and pundits have taken a narrow
view of what can be justified under GATT Article XXI. If anything,
the turmoil of the Trump years—and the establishment’s knee-jerk
reaction to anything the Trump team suggested23—caused a
hardening of the view that “WTO rules . . . define the national
security loophole very restrictively.”24 But, in truth, we just don’t
know. What one observer said in 1991 remains true today:
“[r]egrettably, the history of the provision does not reveal exactly
how broad the escape-valve made available by article XXI was
supposed to be.”25
22 See GATT, supra note 1, art. XXI (emphasis added).

23 See, e.g., Daniel W. Drezner, When Disgraced Theories are Respectable Again,
WASH. POST (May 26, 2021, 7:00 AM),
https://www.washingtonpost.com/outlook/2021/05/26/when-disgraced-theories-are-
respectable-again/ [https://perma.cc/KY6T-ND4B] (discussing how “partisanship
played a huge role in marginalizing” the theory that the COVID-19 virus leaked
from a Wuhan lab and how “the Trump administration pushing the lab leak
hypothesis” actually hurt its credibility).
24 Martin Wolf, Davos 2019: Globalisation Faces Bumpy Road Ahead, FIN. T IMES
(Jan. 20, 2019), https://www.ft.com/content/c1846c4e-ffbf-11e8-b03f-bc62050f3c4e

[https://perma.cc/SJ9W-PMNC] (stating that the Trump Administration “actions
violate WTO rules, which define the national security loophole very restrictively”);
Antoine Martin & Bryan Mercurio, Trade Insights: Trump, China, and a Tale of
Aluminum and Steel Tariffs, ASIAPACIFICCIRCLE.ORG (Apr. 27, 2018),
https://asiapacificcircle.org/asia-pacific-insights-trends/trump-china-a-tale-of-
aluminum-steel-tariffs/ [https://perma.cc/28AE-PJ4W] (“It is also unlikely that the
U.S. national security defence will be upheld, given the lack of evidence of a
security threat and that the clause is intended to be used in situations of war or threat
of war.”); JENNIFER HILLMAN, THE BEST WAY TO ADDRESS CHINA’S UNFAIR
POLICIES AND PRACTICES IS THROUGH A BIG BOLD MULTILATERAL CASE AT THE
WTO, Testimony before the U.S.-China Econ. And Sec. Rev. Comm’n at 15, June 8,
2018 (“[T]he definition of national security under 232 is broad while the definition
under WTO law is limited to trade in nuclear materials, or arms and ammunition or
actions taken during a time of war, [and] there is a high likelihood that any U.S.
actions taken under Section 232 will violate the WTO.”). Hillman is a former
American appointee to the WTO Appellate Body and a former General Counsel at
USTR. See id.
25 Michael J. Hahn, Vital Interests and the Law of GATT: An Analysis of GATT’s
Security Exception, 12 MICH. J. INT’L L. 558, 589 (1991) (emphasis omitted).

With continued China–U.S. tensions all but certain, and with

calm, institution-oriented leadership in the White House, it is time
for a reassessment. Using seven specific examples, this Article
argues that actions to decouple some aspects of the China–U.S. trade
relationship may well be defensible under the WTO essential security
interest exceptions—and certainly more credible than many
commentators allowed in their reactions to the Trump administration.
Moreover, in the circumstances of a successful Article XXI claim by
the United States, China would have a straightforward GATT Article
XXIII “non-violation” impairment claim against the United States. In
other words, these elements of GATT could formalize a partial de-
coupling of China–U.S. trade consistent with the rules-based
international trading system.
There are other possible tools in the WTO toolbox. Some
commentators have floated the idea that the United States should
itself bring an Article XXIII “non-violation” claim against China,
i.e., that while China’s behavior may not violate any WTO rules, its
mercantilist economy has “nullified” the trade benefits the United
States expected in allowing China to join the WTO.26 This sort of
non-violation WTO dispute would be most interesting if it was
comprehensive, that is presenting a detailed challenge to a wide
variety of elements in the Chinese economy. Such a case is worth
mapping out—and Jennifer Hillman has contributed significantly to
that project27—but the resources needed are probably beyond the
Office of the U.S. Trade Representative as presently configured.
Even outlining such a case would be a law review article in its own
right.
Another possibility is to seek a “waiver” suspending China and
the United States’ GATT obligations to one another.28 GATT Article
XXV(5) historically permitted a waiver of some or all of a country’s
GATT obligations if “such decision shall be approved by a two-
thirds majority of the votes cast and that such majority shall
comprise more than half of the contracting parties.”29 As we will see,
26 See James Bacchus et al., Disciplining China’s Trade Practices at the WTO: How
WTO Complaints Can Help Make China More Market‐Oriented, CATO INST. POL’Y
ANALYSIS NO. 856, (Nov. 15, 2018), https://www.cato.org/policy-
analysis/disciplining-chinas-trade-practices-wto-how-wto-complaints-can-help-
make-china-more (discussing possible non-violation claims against China).
27 See Hillman, supra note 24, at 2.
28 See Brewster, supra note 19, at 1424 n.21 (suggesting “a waiver from the WTO
membership” for a wide-ranging China–US trade deal).

29 See GATT, supra note 1, art. XXV(5).

this mechanism was used in 1951 to suspend the GATT obligations

of the United States and Czechoslovakia to each other. Article IX of
the WTO’s master agreement—the Marrakesh Agreement
Establishing the World Trade Organization—similarly provides a
waiver mechanism, requiring that “any such decision shall be taken
by three fourths” of the WTO membership.30 The WTO Agreement
Article IX mechanism appears to override GATT Article XXV, but
this has never been tested. Still, as things stand in 2021, China would
almost certainly oppose such a mutual waiver; decoupling through
GATT Article XXI is more politically realistic.
Part I of this Article briefly describes the post-2016
deterioration of the China–U.S. trade relationship and the emergence
of an increasing consensus in the United States that geo-political
considerations must have primacy over economic issues in the
United States’ interactions with China. Part II of this Article presents
GATT Article XXI then lays out eight hypothetical U.S. trade
restrictions against China ranging from a continuation and
refinement of the current steel and aluminum tariffs to a sweeping
revision of U.S. trade terms to address climate change. The question
is: are any of these hypothetical actions defensible under GATT
Article XXI? To explore that question, Part III reviews in detail the
WTO Russia – Traffic in Transit (2019) decision, the first full-blown
GATT/WTO panel analysis of the provision. Part IV then reviews
seventy years of state practice and pronouncements on Article XXI.
Although the Russia – Traffic in Transit (2019) panel found that state
practice did not reveal any “agreement between the Members
regarding the interpretation of Article XXI,” these decades of claims,
discussion, and debates about Article XXI are nonetheless
informative for our consideration of the hypotheticals.31 Lastly, Part
V explores a GATT “non-violation” claim as a Chinese
countermeasure to a U.S. Article XXI claim and how mutual
suspension of China–U.S. GATT obligations might be pursued in the
WTO system.
I. THE POST-2016 CHINA–US TRADE RELATIONSHIP
As the Trump administration began to unveil policies in 2017,

it became clear that the anti-trade rhetoric of candidate Trump had
30
Marrakesh Agreement, supra note 18, art. IX.
Panel Report, Russia – Measures Concerning Traffic in Transit, at 106 n.5, WTO
31
Doc. WT/DS512/R (adopted Apr. 5, 2019) [hereinafter Russia – Traffic in Transit].

not been just another campaign promise to “level the playing field”
in international trade. But any sensible discussion of the Trump
administration’s trade policy 2017–2020 has to separate actual
events—unilateral actions and agreements with other countries—
from the often senselessly heated rhetoric that came from President
Trump himself. During the Trump presidency, the United States
successfully renegotiated both NAFTA and “KORUS,” the free trade
agreement with the Republic of Korea.32 By 2018, what had initially
seemed like a wild flaying against the entire international trade
system had principally become a more focused struggle to reset
China–U.S. trade relations. (The Biden Administration has continued
that focus, forming a more unified front with allies against China’s
trade practices.33)
In February 2018, the U.S. Department of Commerce released
two reports under section 232 of the Trade Expansion Act of 1962;
these reports concluded that diminishing domestic production of
steel and aluminum posed a national security concern for the United
States.34 Following those reports, in March 2018, President Trump
signed an order imposing a 25% tariff increase on a wide range of
steel products and a 10% tariff increase on a range of aluminum
products being imported into the U.S. The order was effective after
32
See, e.g., Alan Rappeport & Jim Tankersley, Trump Gets First Major Trade Deal
as South Korea Looks to Avoid Tariffs, N.Y. TIMES (Mar. 26, 2018),
https://www.nytimes.com/2018/03/26/business/south-korea-us-tariffs.html
[https://perma.cc/K9D8-22Y8]; Don Lee, NAFTA is History as Senate Gives Final
Approval to USMCA, L.A. TIMES (Jan. 16, 2020, 9:04 AM),
https://www.latimes.com/politics/story/2020-01-16/hold-nafta-is-history-as-senate-
gives-final-passage-to-usmca [https://perma.cc/S6H9-W74Z].
33 See, e.g., Stuart Lau & David M. Herszenhorn, EU and US Look to Gang Up on
China After Trade War Truce, POLITICO (Oct. 31, 2021, 3:40 PM),
https://www.politico.eu/article/eu-us-trade-war-truce-import-tariffs-steel-aluminum-
g20-summit-2021-china/ [https://perma.cc/D28D-VTCH]; Katie Silver, China’s
Trade Practices Come Under Fire, BBC NEWS (Oct. 21, 2021),
https://www.bbc.com/news/business-58991339 [https://perma.cc/CH64-D5SK]
(describing Australia, Canada, EU, Great Britain, Japan, and US all criticizing China
at WTO).
34 See U.S. DEP’T. OF C OM., THE EFFECT OF IMPORTS OF ALUMINUM ON
THE NATIONAL SECUIRTY (2018), https://www.commerce.gov/sites/

default/files/the_effect_of_imports_of_aluminum_on_the_national_security_-
_with_redactions_-_20180117.pdf (stating that the investigations were conducted
pursuant to 19 U.S.C. § 1862 (Safeguarding national security)). See also U.S. DEP’T.
OF COM., THE EFFECT OF IMPORTS OF STEEL ON THE NATIONAL
SECURITY (2018), https://www.commerce.gov/sites/default/
files/the_effect_of_imports_of_steel_on_the_national_security_-_with_redactions_-
_20180111.pdf.

fifteen days, but included a temporary carve-out provision for the

EU, Canada, Mexico, Australia, Argentina, Brazil, and South Korea.
The tariffs were later imposed on Canada, the EU, and Mexico at the
end of May.35
While most countries eventually received exemptions from the
March 2018 tariff increases on steel and aluminum product, the
tariffs continued in effect on applicable Chinese products. In
addition, a number of countries that received exemptions from the
increased tariffs pledged measures to ensure that Chinese steel and
aluminum was not trans-shipped through their territories to avoid the
heightened tariffs.
The Trump Administration’s efforts to justify these tariffs were
almost universally panned; critics called the administration’s national
security claim “dubious[],” 36 “bogus,”37 “a sham”38 and a “misus[e]”
of the law.39 One cannot help but wonder if these commentators
35 See generally Heather Long, Trump Has Officially Put More Tariffs on U.S. Allies
Than on China, WASH. POST (May 31, 2018), https://www.washingtonpost.com
/news/wonk/wp/2018/05/31/trump-has-officially-put-more-tariffs-on-u-s-allies-than-
on-china/ [https://perma.cc/37A4-C3V8]; Jim Brunsden & Shawn Donnan, US
Grants Last-Minute Exemptions to Looming Steel Tariffs, FIN. TIMES (Mar. 22,
2018), https://www.ft.com/content/fac4f67a-2db7-11e8-a34a-7e7563b0b0f4
[https://perma.cc/VF7C-H423]; John Fritze, Canada, EU, Mexico Balk as Trump
Imposes Tariffs on Steel, Aluminum, USA TODAY, June 1, 2018, at 4B; Editorial,
Trump’s Steel Destruction, WALL ST. J. (June 1, 2018, 7:26 PM),
https://www.wsj.com/articles/trumps-steel-destruction-1527809177
[https://perma.cc/RGY8-55CE].
36 James Hohmann, The Daily 202: Toothless Trade Resolution Demonstrates
Congress’s Unwillingness to Check Trump, WASH. POST (July 12, 2018),

https://www.washingtonpost.com/news/powerpost/paloma/daily-
202/2018/07/12/daily-202-toothless-trade-resolution-demonstrates-congress-s-
unwillingness-to-check-trump/5b46a5d81b326b3348adde6a/
[https://perma.cc/UF7W-DD26] (“Trump has dubiously invoked Section 232 of the
Trade Expansion Act, which allows a president to slap duties on imports if U.S.
national security is threatened. The administration is literally claiming, for legal
purposes, that our nation’s safety is jeopardized by steel from Canada, Mexico and
the European Union.”).
37 Long, supra note 35 (quoting Matthew Rooney, managing director of the Bush
Institute, that “[t]o do tariffs in the name of national security is absurd”); Id.
(“Opponents of the tariffs say that the national security claim is bogus since the U.S.
has military ties with these nations.”).
38 Steve Charnovitz, EU Can Retaliate Immediately Against Trump’s Metal Tariffs,
INT’L L. & ECON. POL’Y BLOG (Mar. 9, 2018), https://ielp.worldtradelaw.net/

2018/03/eu-can-retaliate-immediately-against-trumps-metal-tariffs.html
[https://perma.cc/UCM7-A45V].
39 Editorial, Trump Wants to Wield Tariffs Like a Weapon. But Who Will He Actually
Wound?, L.A. TIMES, July 5, 2018, at A10 (“By misusing the ‘national security’

would have had the same reaction if the tariffs had been imposed by
someone like President Biden—who has maintained most of the
Trump tariff increases on Chinese products.40
In response to the 2018 U.S. steel and aluminum tariffs, the EU
and other jurisdictions quickly imposed their own retaliatory tariffs
arguing these actions were permitted under the WTO Safeguards
Agreement.41 By taking the position that “notwithstanding the United
States’ characterisation of these measures as security measures, [the
US steel and aluminum tariffs] are safeguard measures,”42 the EU,
India, Russia, China, and Turkey claimed that they were entitled to
immediately impose their own tariffs under Article 8.2 of the WTO
Safeguards Agreement. That provision allows a WTO Member to
suspend “substantially equivalent concessions or other obligations
under GATT 1994, to the trade of the Member applying the
exception, Trump is only encouraging other countries to do the same as a way to

shield of their own goods and services.”)
40 Asma Khalid, Biden is Keeping Key Parts of Trump’s China Trade Policy. Here’s
Why, NPR.ORG (Oct. 4, 2021, 3:36 PM),

https://www.npr.org/2021/10/04/1043027789/biden-is-keeping-key-parts-of-trumps-
china-trade-policy-heres-why [https://perma.cc/6XNK-8VME]. The Biden
Administration has also maintained some of the other tariff hikes imposed by the
Trump Administration. See Ana Swanson, Biden Reinstates Aluminum Tariffs in
One of His First Trade Moves, N.Y. TIMES (Feb. 2, 2021),
https://www.nytimes.com/2021/02/02/business/economy/biden-aluminum-
tariffs.html [https://perma.cc/3T6A-5JJT].
41 Implemented from April to December 2018, the retaliatory measures included
tariff increases from 5% to 50% on a variety of agricultural, industrial, and steel and
aluminum products exported from the United States (e.g., sweet corn, rice, fruits,
nuts, liquor, cigarettes, cloth and clothes, steel products, aluminum waste and
scrape, wine, meat, alcohol, coal, plastic products, wood, paper, machinery, motor
cars, and motor cycles). See G/SG/N/12/EU/1 (May 18, 2018); G/SG/N/12/RUS/2
(May 22, 2018); G/SG/N/12/CHN/1 (April 3, 2018); G/SG/N/12/TUR/6 (May 22,
2018); G/SG/N/12/IND/1/Rev.1 (June 14, 2018), Customs Notice 18-08: Surtaxes
Imposed on Certain Products Originating in the United States (June 29, 2018,
Revised July 11, 2018) (Canada); Decree Modifying the Tariff Schedule of the Law
of General Import and Export Taxes, the Decree establishing the General Import
Tax Rate applicable during 2003 for goods originating in North America, and the
Decree establishing Various Sectoral Promotion Programs (enacted June 5, 2018;
effective June 5, 2018) (Mexico).
42
See World Trade Organization, Immediate Notification Under Article 12.5 of the
Agreement on Safeguards to the Council for Trade in Goods of Proposed
Suspension of Concessions and Other Obligations Referred to in Paragraph 2 of
Article 8 of the Agreement on Safeguards, WTO Doc. G/SG/N/12/EU/1 (adopted
May 18, 2018).

safeguard measure.”43 At the same time, these countries began WTO

disputes against the U.S. premised on the WTO Safeguards
Agreement.44
Besides the steel and aluminum tariffs, the most significant
tariff increases during the Trump administration were directly
targeted against China. In August 2017, the United States Trade
Representative (USTR) began a separate investigation under Section
301 of the Trade Act of 1974 of China’s activities in relation to
American intellectual property including forced technology transfers
and industrial espionage.45 The final report on this investigation was
released on March 22, 2018, with a concomitant presidential
memorandum, calling for USTR to draft a “proposed list of
products” for increased tariffs, conduct a notice and comment period
on the same, and “publish a final list of products and tariff
increases.”46 That process led to additional tariffs being imposed on
three “lists” of Chinese goods:
43 World Trade Organization, Agreement on Safeguards, art. 8(2), WTO,

https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=Q:/UR/FA/25-
safeg.pdf&Open=True [https://perma.cc/7E5F-RGX4] (last visited Apr. 11, 2022).
44 See Request for Consultations by Switzerland, United States—Certain Measures
on Steel and Aluminum Products, WTO Doc. WT/DS556/1 (Jul. 12, 2018); Request
for Consultations by Russian Federation, United States—Certain Measures on Steel
and Aluminum Products, WTO Doc. WT/DS554/1 (July 2, 2018); Request for
Consultations by Norway, United States—Certain Measures on Steel and Aluminum
Products, WTO Doc. WT/DS552/1 (June 19, 2018); Request for Consultations by
Mexico, United States—Certain Measures on Steel and Aluminum Products, WTO
Doc. WT/DS551/1 (June 7, 2018); Request for Consultations by Canada, United
States—Certain Measures on Steel and Aluminum Products, WTO Doc.
WT/DS550/1 (June 6, 2018); Request for Consultations by European Union, United
States—Certain Measures on Steel and Aluminum Products, WTO Doc.
WT/DS548/1 (June 6, 2018); Request for Consultations by India, United States—
Certain Measures on Steel and Aluminum Products, WTO Doc. WT/DS547/1 (May
23, 2018); Request for Consultations by China, United States—Certain Measures on
Steel and Aluminum Products, WTO Doc. WT/DS544/1 (Apr. 9, 2018).
45 Actions by the United States Related to the Section 301 Investigation of China’s
Laws, Policies, Practices, or Actions Related to Technology Transfer, Intellectual

Property, and Innovation, 83 Fed. Reg. 13,099 (Mar. 22, 2018) [hereinafter Actions
Related to the Section 301 Investigation].
46 See OFF. OF THE U.S. TRADE REPRESENTATIVE, EXEC. OFF. OF THE PRESIDENT,
FINDINGS OF THE INVESTIGATION INTO CHINA’S ACTS, POLICIES, AND PRACTICES

RELATED TO TECHNOLOGY TRANSFER, INTELLECTUAL PROPERTY, AND INNOVATION
UNDER SECTION 301 OF THE TRADE ACT OF 1974 (2018) [hereinafter FINDINGS OF THE
SECTION 301 INVESTIGATION INTO CHINA]; Actions Related to the Section 301
Investigation, supra note 45, at 13,099–13,100.

•List 1. A 25% additional tariff was imposed on a list of tariff

classifications that covered approximately $34 billion in goods
imported from China; this came into effect in early July 2018.47
•List 2.A 25% additional tariff was imposed on an additional
list of tariff classifications that covered approximately $16 billion in
goods imported from China; this came into effect on 23 August
2018.48
•List 3.A 10% additional tariff was imposed on an additional
list of tariff classifications that covered approximately $200 billion in
goods imported from China and came into effect September 2018.49
On May 10, 2019, in response to the then-stalled China–U.S.
trade talks, President Trump increased the additional tariffs on the
$200 billion worth of Chinese goods in List 3 from 10% to 25%.50
Keep in mind that when one names an amount of Chinese
imports affected, such numbers are historic and escalating tariffs on
one country’s products should cause the amount of imports from that
country to drop as production shifts to other countries (or ‘reshores’
back to the US). And that means that contrary to what simplistic
press reports say, it is likely that the full cost of the additional tariff
will not be passed onto consumers. First, as the tariffs on Chinese-
47 See United States to Impose Third Set of Section 301 Tariffs on $200 Billion of
Chinese-Made Products, DORSEY & WHITNEY LLP (Sept. 13, 2018),
https://www.dorsey.com/newsresources/publications/client-alerts/2018/09/us-third-
set-tariffs-on-products-from-china [https://perma.cc/LHT3-L72D] [hereinafter
DORSEY & WHITNEY]; see also Request for Comments Concerning Proposed
Modification of Action Pursuant to Section 301: China’s Acts, Policies, and
Practices Related to Technology Transfer, Intellectual Property, and Innovation, 83
Fed. Reg. 33,608 (July 17, 2018).
48 See DORSEY & WHITNEY, supra note 47.
49 See Press Release, USTR Finalizes Tariffs on $200 Billion of Chinese Imports in
Response to China’s Unfair Trade Practices, USTR (Sept. 18, 2018),

https://ustr.gov/about-us/policy-offices/press-office/press-
releases/2018/september/ustr-finalizes-tariffs-200 [https://perma.cc/H7DL-7U8S]
(stating that the 10% increase was applied to “5,745 full or partial lines of the
original 6,031 tariff lines that were on a proposed list of Chinese imports announced
on July 10, 2018”). See generally USTR, TARIFF LIST PART 1 (Sept. 17, 2018)
(describing the tariff list as of Sept. 17, 2018).
50 See Robyn Dixon & Don Lee, The U.S.-China Trade War Just Got a Lot Worse.
And There’s No Quick Fix for Relations, L.A. TIMES (May 10, 2019, 11:21 AM),
https://www.latimes.com/world/la-fg-trade-war-tariff-hike-20190510-story.html
[https://perma.cc/VFF6-TYCT]; David J. Lynch & Damien Paletta, Trump Doubles
Tariffs on $200 Billion of Chinese Imports, Escalating U.S.-China Trade War,
WASH. POST (May 10, 2019), https://beta.washingtonpost.com/business/economy
/ahead-of-us-china-trade-talks-xi-writes-to-trump/2019/05/09/4adb6f10-727f-11e9-
9eb4-0828f5389013_story.html?noredirect=on [https://perma.cc/B2FZ-LWPD].

produced goods cause production to shift to other jurisdictions, the

cost of producing the goods may not be higher in the new production
locale (Vietnam, Thailand, Mexico, India, the United States) than it
was in China.51 In that case, prices rise little if at all. Second, even if
the production costs are higher in the new production locale, the
increased cost may not be as high as the tariff, especially over time.
For example, increasing tariffs on Chinese widgets from 3% to 25%
may cause widget production to move to Vietnam, where (let’s
imagine) widgets are 4% more expensive to manufacture. Even if the
full cost of the new place of production is passed onto consumers,
that is a 4% increase, not a 22% increase.
In December 2019, China and the United States reached a
“Phase 1” trade deal in which the United States dialed back some of
its tariff increases in exchange for a Chinese commitment to “import
various U.S. goods and services over the next two years in a total
amount that exceeds China’s annual level of imports for those goods
and services in 2017 by no less than $200 billion.”52 The Phase 1 deal
also included Chinese commitments to curb forced technology
transfers, to strengthen intellectual property, and to address a host of
nontariff barriers in everything from financial services to genetically-
modified foods.53 Some commentators noted the irony that mandated
purchase targets meant the agreement required more, not less, central
government intervention in the Chinese economy—and that much of
the rest of the deal were reforms that Beijing was already
undertaking and/or promises that Beijing had made before.
51 See Yan Zhang, Apple, Dell Consider Moving China Production in Trade War.
Who Else?, USA TODAY (July 24, 2019),
https://www.usatoday.com/story/money/2019/07/24/trade-war-tariffs-prompt-
companies-pull-china-production/1768515001/ [https://perma.cc/3XSE-BSXS]
(reporting that this is exactly what happened, “[a]bout 41% of American companies
are considering shifting manufacturing from China, or have already done so, the
American Chamber of Commerce in China said in a recent survey”). By 2021, the
U.S. trade deficit with China was shrinking and our deficit with other Asian
countries growing. Ken Robert, China Accounting for Lowest Percentage of U.S.
Imports Since 2008, FORBES (Dec. 23, 2021, 5:00 AM),
https://www.forbes.com/sites/kenroberts/2021/12/23/china-accounting-for-lowest-
percentage-of-us-imports-since-2008/?sh=e0559cc32927 [https://perma.cc/687R-
JDEH] (“[T]he U.S. trade deficit with China is like to be the lowest total since 2014,
excluding 2020. While it will still be three times the size of the deficit with Mexico,
it was about five times greater in 2018.”).
52 See U.S. TRADE REPRESENTATIVE, FACT SHEET: ECONOMIC AND TRADE
AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND THE PEOPLE’S REPUBLIC
OF CHINA (Jan. 15, 2020).
53 See id.

Whether or not Beijing could have met the deal’s purchase

commitments in normal times, COVID-19 plunged the international
economy into the deepest recession since the 2008 financial crisis.
Whereas China had committed to increase its importation of U.S.
agricultural products by 60% over the 2017 levels, the 2020 increase
was only 30%—an increase of $6.5 billion in U.S. agricultural
exports to China instead of the target of a $12.5 billion increase.54
According to calculations by Chad Bown at the Peterson Institute,
China’s 2020 purchase of products covered by the agreement
reached only 59% of the agreement target.55
As of fall 2021, the Biden administration has shown little
interest in returning to pre-2017 business-as-usual with Beijing.
Instead, as Richard Haas noted at the end of 2021, “U.S. policy
toward China has hardly changed since Biden became president.”56 A
more diplomatic, less erratic, equally tough line has been adopted57
and elevated tariffs have been left in place.58 Indeed, the constant
drumbeat from Beijing of human rights abuses, aggressive behavior
toward Taiwan and in the South China Sea, and undiplomatic
54 See U.S., China Phase One Agreement – Year One, MKT. INTEL (Feb. 10, 2021),
https://www.fb.org/market-intel/u.s.-china-phase-one-agreement-year-one
[https://perma.cc/QX4J-MWSD].
55
See Chad P. Bown, US-China Phase One Tracker: China’s Purchases of US
Goods, PETERSON INST. FOR INT’L ECON. (Dec. 23, 2021),
https://www.piie.com/research/piie-charts/us-china-phase-one-tracker-chinas-
purchases-us-goods [https://perma.cc/WGY8-BFNK].
56 Richard Haas, The Age of America First, FOREIGN AFFS. (Nov./Dec. 2021),
https://www.foreignaffairs.com/articles/united-states/2021-09-29/biden-trump-age-
america-
first?utm_medium=newsletters&utm_source=twofa&utm_campaign=The%20Age%
20of%20America%20First&utm_content=20211001&utm_term=FA%20This%20
Week%20-%20112017 [https://perma.cc/4QYR-HPNT].
57
See Olivier Knox, The Daily 202: Iran Tests Biden as He Joins First International
Summit as President, WASH. POST (Feb. 19, 2021),
https://www.washingtonpost.com/politics/2021/02/19/daily-202-iran-tests-biden-he-
joins-first-international-summit-president/ [https://perma.cc/HLP7-5L4L] (reporting
that President Biden has spoken of extreme competition and “long-term strategic
competition with China”); see also Josh Rogin, China Threw Down the Gauntlet to
the Biden Team on Day One, W ASH. POST (Jan. 21, 2021),
https://www.washingtonpost.com/opinions/global-opinions/china-threw-down-the-
gauntlet-to-the-biden-team-on-day-one/2021/01/21/2e5a84a8-5c24-11eb-a976-
bad6431e03e2_story.html [https://perma.cc/GW9B-4WC7] (reporting that Secretary
of State Blinken “told senators Trump’s ‘basic principle was the right one’ and the
Trump administration was ‘right in taking a tougher approach to China’”).
58 See Stokols & Lee, supra note 13 (reporting that Biden is leaving Trump
administration tariffs in place).

diplomacy would make full rapprochement difficult for the United

States.
II. GATT ARTICLE XXI AND SOME HYPOTHETICAL TRADE

RESTRICTIONS
Among its many trade disciplines that form the core disciplines
of the international trading system, GATT has two important
exception provisions—Article XX covering “general exceptions”
and Article XXI addressing “security exceptions.” Article XX
permits defections from the trade rules for a variety of different
concerns—ranging from safeguarding human health to protecting
gold reserves to addressing other countries’ use of prison labor.59 The
last of these provides some grounding for the Biden administration’s
decision to restrict solar panels and other products using silica
produced with forced labor in Xinjiang.60
Some of the hypothetical trade restrictions presented here might
be justified on some Article XX grounds, but our project is to test
these theoretical trade restrictions against what we know about
GATT’s national security exceptions.
A. GATT Article XXI
National security-based exceptions from trade rules appeared at

the inception of proposals for a post-World War II multilateral
trading system. In 1946, the United States proposed a “Suggested
Charter” for the International Trade Organization (ITO).61 In that
draft—and subsequently through what were called the London and
New York drafts of the ITO Charter—national security concerns
59 Among the grounds recognized in Article XX for legitimate defections from trade
obligations are measures “(b) necessary to protect human, animal or plant life or
health”; “(c) relating to the importations or exportations of gold or silver;” and “(e)
relating to the products of prison labour.” See GATT, supra note 1, art. XX.
60 See FACT SHEET: New U.S. Government Actions on Forced Labor in Xinjiang,
WHITE HOUSE (June 24, 2021), https://www.whitehouse.gov/briefing-

room/statements-releases/2021/06/24/fact-sheet-new-u-s-government-actions-on-
forced-labor-in-xinjiang/ [https://perma.cc/D5MG-G8WV]; see also Lily Kuo &
Jeanne Whalen, Biden Administration Bars Imports of Solar Panels Linked to
Forced Labor in China’s Xinjiang Region, WASH. POST (June 24, 2021, 11:32 AM),
https://www.washingtonpost.com/technology/2021/06/24/china-solar-forced-labor-
imports-custom/ [https://perma.cc/G5Z3-BT6Z].
61 See generally U.S. DEP’T OF STATE, S UGGESTED C HARTER FOR AN INTERNATIONAL
TRADE ORGANIZATION OF THE UNITED NATIONS (1946) [hereinafter SUGGESTED

CHARTER].

were addressed as separate subcomponents of a general exceptions

article which everyone agrees evolved into what is now GATT
Article XX. In the final two versions of the ITO Charter—from
negotiations in Geneva and Havana respectively—the national
security exceptions were spun off in a separate article (eventually
numbered Article 99).62 Shortly after it was finalized, ITO Article 99
was transposed into the GATT; there is consensus that ITO Article
99 and GATT Article XXI are effectively identical—and were
intended to be.63 Article XXI provides as follows:
Nothing in this Agreement shall be construed
(a) to require any contracting party to furnish any information the
disclosure of which it considers contrary to its essential security interests;
or
(b) to prevent any contracting party from taking any action which it
considers necessary for the protection of its essential security interests
(i) relating to fissionable materials or the materials from which they are
derived;
(ii) relating to the traffic in arms, ammunition and implements of war and
to such traffic in other goods and materials as is carried on directly or
indirectly for the purpose of supplying a military establishment;
(iii) taken in time of war or other emergency in international relations; or
62The component national security “situations” of GATT Article XXI first appear in
the general exceptions provision of the Suggested Charter, Article 32(c), (d), (e), and
(k). The provisions are then in Article 37 of the London and New York drafts; then
separated out as Article 94 of the Geneva draft and renumbered Article 99 of the
Havana draft of the ITO Charter. For a summary of how the drafts developed, see
Seymour Rubin, The Judicial Review Problem in the International Trade
Organization, 63 HARV. L. REV. 78, 79–80 (1949). For a summary of how GATT
Article XXI developed from the earlier national security exception provisions, see
GATT Analytical Index (Pre-1995), Article XXI – Security Exceptions 608–09,
WTO, https://www.wto.org/english/res_e/publications_e/ai17_e/gatt1994_e.htm
[https://perma.cc/GXW3-73SH].
63 See Second Session of the Preparatory Committee of the United Nations
Conference on Trade and Employment, (Draft) General Agreement on Tariffs and

Trade, at 47, U.N. Doc. E/PC/T/189 (Aug. 30, 1947). At that moment, negotiators
were seeking to get the most critical pieces of the ITO system (separate from
organization governance) into the GATT. See also DOUGLAS A. IRWIN, CLASHING
OVER COMMERCE 478–80 (2017) (describing components of ITO and bilateral trade
agreements brought into GATT). See generally GATT Secretariat, Article XXI Note
by the Secretariat, Negotiating Group on GATT Articles, para. 5, WTO Doc.
MTN.GNG/NG7/W/16 (Aug. 18, 1987).

(c) to prevent any contracting party from taking any action in pursuance of
its obligations under the United Nations Charter for the maintenance of
international peace and security.64
In 1949, one of the U.S. negotiators for the ITO (and the
GATT) described this language as a place where the proposed
multilateral trading rules “had touched the raw nerve of security
questions.”65 In the years since, while many countries justified their
own potentially GATT-inconsistent behavior on national security
grounds, Article XXI claims were absent from GATT/WTO dispute
resolution until they appeared in a rash of cases beginning in 2016.66
There is widespread agreement that the “which it considers
necessary” wording is to address those raw nerve sensitivities and
64 GATT, supra note 1, art. XXI.

65 Rubin, supra note 62, at 81.
66 See Russia – Traffic in Transit, supra note 31; Communication from the United
Arab Emirates, United Arab Emirates – Measures Relating to Trade in Goods and
Services, and Trade Related Aspects of Intellectual Property Rights, WTO Doc.
WT/DS526/8 (adopted Jan. 20, 2022); Request for Consultations by Qatar, Bahrain
– Measures Relating to Trade in Goods and Services, and Trade Related Aspects of
Intellectual Property Rights, WTO Doc. WT/DS527/1 (adopted Aug. 4, 2017);
Request for Consultation by Qatar, Saudi Arabia – Measures Relating to Trade in
Goods and Services, and Trade Related Aspects of Intellectual Property Rights,
WTO Doc. WT/DS528/1 (adopted Aug. 4, 2017); Communication from the Panel,
United States – Certain Measures on Steel & Aluminium Products, WTO Doc.
WT/DS54412 (adopted Dec. 10, 2021); Communication from the Panel, United
States – Certain Measures on Steel and Aluminium Products, WTO Doc.
WT/DS547/12 (adopted Dec. 10, 2021); Recourse to Article 25 of the DSU, United
WT/DS548/19 (adopted Jan. 21, 2022); Panel Report, United States – Certain
Measures on Steel and Aluminium Products, WTO Doc. WT/DS550/R (adopted Jul.
11, 2019); Panel Report, United States – Certain Measures on Steel and Aluminium,
WTO Doc. WT/DS551/R (adopted Jul. 11, 2019); Communication from the Panel,
United States – Certain Measures on Steel and Aluminium Products, WTO Doc.
WT/DS552/14 (adopted Dec. 10, 2021); Communication from the Panel, United
WT/DS564/19 (adopted Dec. 10, 2021); Communication from the Kingdom of
Saudi Arabia, Saudi Arabia – Measures Concerning the Protection of Intellectual
Property Rights, WTO Doc. WT/DS567/9 (adopted Jan. 7, 2022); Request for the
Establishment of a Panel by Venezuela, United States – Measures Relating to Trade
in Goods and Services, WTO Doc. WT/DS574/2/Rev.1 (adopted Mar. 16, 2021).

that it makes at least some of Article XXI “self-judging.”67 The

question is whether it does this partially or completely.68
This is best understood in context. GATT includes many
permissible exceptions to its disciplines when something is
“necessary” to fulfill a legitimate state interest. For example, a wide
range of actions otherwise inconsistent with GATT can be excused
under Article XX when “necessary to protect public morals” or when
“necessary to protect human, animal or plant life or health.”69 Under
Article XI, imports of agricultural products can be limited when
limitations are “necessary” to support domestic programs managing
agricultural production; under Article XII, imports can be limited
when “necessary” to protect a country’s monetary reserves.70 GATT
and WTO decisions have often turned on the metes and bounds of
what reasonably falls under “necessary” in such provisions.71
67 See Alan O. Sykes, Economic “Necessity” in International Law, 109 AM. J. INT’L
L. 296, 303 (2015).
68 See, e.g., id. (stating that Article XXI is “explicitly self-judging”—a party can
take action “‘which it considers necessary . . . .’ This attribute suggests that

adjudicators will afford great deference to national government decisions to invoke
Article XXI, or else conclude that they lack a basis for adjudication.”); Elizabeth
Trujillo, An Introduction to Trade and National Security: New Concepts of National
Security in a Time of Economic Uncertainty, 30 DUKE J. COMPAR. & INT’L L. 211,
215 (2020) (“There has been debate as to the self-judging nature of the exception—
whether it was completely in the discretion of Members or whether it also contained
an objective security exception.”); Simon Lester & Huan Zhu, Closing Pandora’s
Box: The Growing Abuse of the National Security Rationale for Restricting Trade,
CATO POL’Y ANAL. No. 874 (Jun. 25, 2019) (“The use of the word ‘considers’ in
subparagraphs (a) and (b) of Article XXI gives the provision a self-judging nature,
but the question is how far to take this.”); Mona Pinchis-Paulsen, Trade
Multilateralism and U.S. National Security: The Making of the GATT Security
Exception, 41 MICH. J. INT’L L. 109, 114 (2021) (“The language of article XXI does
not precisely define what elements of the article are self-judging.”); Dapo Akande &
Sope Williams, International Adjudication on National Security Issues: What Role
for the WTO?, 43 VA. J. INT’L L. 365, 381–85 (2003) (rejecting arguments that the
wording of Art. XXI leads to “an entirely self-judging exception,” as well as the
argument “that national security questions are essentially political questions and
inherently matters to be decided by the State”).
69 See GATT, supra note 1, art. XX(a)–(b).
70 See GATT, supra note 1, art. XI(2)(c), XII(2).
71 See, e.g., Appellate Body Report, Korea - Measures Affecting Imports of Fresh,
Chilled and Frozen Beef, para. 161–63, WTO Doc. WT/DS161/AB/R (adopted Dec.
11, 2000) [hereinafter Korea – Various Measures on Beef]; Appellate Body Report,
European Communities – Measures Affecting Asbestos and Asbestos-Containing
Products, para. 164, WTO Doc. WT/DS135/AB/R (adopted Apr. 5, 2001);
Appellate Body Report, United States – Measures Affecting Cross-Border Supply of
Gambling and Betting Services, para. 304, WTO Doc. WT/DS285/AB/R (adopted
Apr. 7, 2005) [hereinafter US – Gambling]; Panel Report, European Communities –

As that jurisprudence has developed, the more obviously

important the social, cultural, or economic outcome, the more
deference is given to national determinations of “necessary.”72 A
country has more leeway in what is necessary to protect human life
than what is necessary to protect consumers from harmless
deception. In other words, even without Article XXI’s particular
phrasing, WTO jurisprudence would probably give a very wide berth
to what is “necessary” for a nation’s “essential national security.”
But it is that distinct Article XXI wording that made (and
makes) it unlikely that any tribunal would completely second guess a
WTO Member on its own national security. As Raj Bhala puts it, the
“it considers necessary” wording “indicates that no WTO Member,
nor group of Members, and no WTO panel or other adjudicatory
body, has any right to determine whether a measure taken by a
sanctioning member satisfies the requirements.”73 In his 2011 review
of Article XXI, Roger Alford concluded that the article is “the
international equivalent of a political question”74 and that “in the few
instances when invocation of the security exception has been
challenged, State practice suggests that the security exception is not
reviewable.”75 During the same relatively calm period in WTO
history, another commentator observed that Article XXI “illustrates
Measures Prohibiting the Importation and Marketing of Seal Products, para. 5.169,
WTO Doc. WT/DS381/R (adopted as modified, June 18, 2014) (interpreting
“necessary to protect public morals” under GATT Article XX(a)).
72 See Panel Report, United States – Tariff Measures on Certain Goods from China,
para. 7.159 n.308, WTO Doc. WT/DS543/R (adopted Sept. 15, 2020) (“The more
important the societal value pursued by the measure at issue, the more easily the
measure may be considered to be ‘necessary.’”); US – Gambling, supra note 71,
para. 306 (stating that the “necessity” analysis “begins with an assessment of the
‘relative importance’ of the interests or values furthered by the challenged
measure”); Korea – Various Measures on Beef, supra note 71, para. 164 (stating that
the “necessary” analysis involves weighing “the importance of the common interests
or values protected by that law or regulation”).
73 See Raj Bhala, National Security and International Trade Law: What the GATT
Says, and What the United States Does, 19 U. PA. J. INT’L ECON. L. 263, 268–69
(1998).
74 See Roger Alford, The Self-Judging WTO Security Exception, 2011 UTAH L. REV.
697, 702. In his review of the historical record, Alford concludes that a strong
majority of GATT/WTO members have “maintain[ed] that the security exception is
self-judging.” Id. at 708.
75
See id. at 701. But see Susan Rose-Ackerman & Benjamin Billa, Treaties and
National Security, 40 N.Y.U. J. INT’L L. & POL. 437, 468 (2008) (“Although there
has been no WTO jurisprudence and no decision by a WTO body relating to article
XXI, it is fair to assume that arguments for reviewability of national security
concerns are even stronger now.”).

not only the legitimate existence of other nontrade values but also
their prioritization because and to the extent that national security
will take precedence over multilateral trade.”76
Until 2019 there were no GATT/WTO decisions actually
interpreting Article XXI, but since 1986 we have at least had the
authoritative sideway glance from the International Court of Justice
(ICJ). In Nicaragua v. United States (1986),77 the ICJ needed to
interpret the national security clause of the U.S.–Nicaragua
Friendship, Commerce, and Navigation (FCN) Treaty which
provided: “The present Treaty shall not preclude the application of
measures: . . . (d) necessary to fulfill the obligations of a Party for
the maintenance or restoration of international peace and security,
or necessary to protect its essential security interests.”78 The ICJ
contrasted this language, lacking a “which it considers,” with GATT
Article XXI:
That the Court has jurisdiction to determine whether measures taken by
one of the Parties fall within such an exception, is also clear a contrario
from the fact that the text of Article XXI of the Treaty does not employ
the wording which was already to be found in Article XXI of the General
Agreement on Tariffs and Trade. This provision of GATT, contemplating
exceptions to the normal implementation of the General Agreement,
stipulates that the Agreement is not to be construed to prevent any
contracting party from taking any action which it ‘considers necessary for
the protection of its essential security interests’, in such fields as nuclear
fission, arms, etc. The 1956, on the contrary, speaks simply of ‘necessary’
measures, not of those considered by a party to be such.79
Not surprisingly, when a GATT/WTO panel finally interpreted

Article XXI, it did so in a way roughly consistent with the ICJ’s
views.80 That WTO panel decision as well as a rich history of claims
76 See Regis Bonnan, The GATT Security Exception in a Dispute Resolution
Context: Necessity or Incompatibility?, 19 CURRENTS: INT’L TRADE L.J. 3, 10
(2010).
77 See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.),
Judgment, 1986 I.C.J Rep. 14 (June 27).

78 Treaty of Friendship, Commerce, and Navigation (with Protocol), U.S.-Nicar., art.
XXI, Jan. 21, 1956, 367 U.N.T.S. 5224 (emphasis added).

79 See Nicar. v. U.S., 1986 I.C.J. at para. 222. The ICJ drew this contrast between the
Nicaragua–U.S. treaty and Article XXI of GATT in paragraph 282 (“But by the
terms of the Treaty itself, whether a measure is necessary to protect the essential
security interests of a party is not, as the Court has emphasized (paragraph 222
above), purely a question for the subjective judgment of the party; the text does not
refer to what the party ‘considers necessary’ for that purpose.”).
80 And just as the ICJ concluded that different words in different treaties mean
different things, WTO decisions have assumed that different words in the same or
different WTO agreements mean different things. See, e.g., Appellate Body Report,

and discussion about Article XXI provide much food for thought as
to the provision’s meaning and application.
But commentators discussing all this material have tended to be
very general, sometimes simply discussing what countries have said
chronologically. Perhaps fueled by a general contempt for the Trump
administration’s own contempt for the post-WWII order,
commentators have sometimes just assumed that the United States
would lose an Article XXI defence to any trade restrictions imposed
on China.81
B. Seven Hypothetical China–U.S. Trade Restrictions
Instead of starting with a general analysis of Article XXI, let us

begin with a set of specific hypotheticals involving U.S. actions that
would be inconsistent with its WTO obligations, if only vis-à-vis the
United States’ tariff bindings.82 Then, we will consider the historical
record of Article XXI claims, discussion, and analyses against these
hypotheticals. The project is to consider whether any of the
following would be WTO-inconsistent conduct that would be
potentially excusable under GATT Article XXI:
(1)Taiwan or South China Sea crisis scenario
In the case of a mainland attack on Taiwan or some type of serious
hostilities in the South China Sea (involving extensive loss of life), the
United States orders an immediate embargo on all imports from China,
including goods in transit; many U.S. allies follow suit.
European Communities – Measures Concerning Meat and Meat Products

(Hormones), para. 164, WTO Doc. WT/DS26/AB/R, WT/DS48/AB/R (adopted Jan.
16, 1998) (“The implication arises that the choice and use of different words in
different places in [a WTO Agreement] are deliberate, and that the different words
are designed to convey different meanings.”).
81
See, e.g., Lester & Zhu, supra note 68, at 8 (“Second, as explained earlier, WTO
dispute settlement probably cannot help here. A ruling that the Section 232 measures
violate GATT obligations and are not justified under Article XXI is unlikely to
make the United States comply, and retaliation is already being imposed by many
countries even without authorization.”); Stuart Malawer, Trump, Trade and National
Security -- Blowing Up the WTO? 2, https://ssrn.com/abstract=3133770 (discussing
2018 steel and aluminum tariffs, “[t]he U.S. would likely be unable to meet the
requirements of Article XXI. . . . a global glut of steel and aluminum exists, and the
U.S. is neither in a time of war nor facing an international relations emergency”).
82
See Glossary Term – Tariff Binding, WORLD TRADE ORG.,
https://www.wto.org/english/thewto_e/glossary_e/tariff_binding_e.htm#
[https://perma.cc/97FM-637R] (“Commitment not to increase a rate of duty beyond
an agreed level. Once a rate of duty is bound, it may not be raised without
compensating the affected parties.”).

(2)Steel and aluminum tariff scenario

The United States maintains and/or increases the Trump era tariffs on
aluminum and steel from China effectively making such imports cost-
prohibitive; the United States expands the tariffs to include any processed
steel industrial products (sheets, rolled steel, etc.) coming from third
countries that were based on input Chinese steel (perhaps with limited
transformation); this is done in conjunction with a program that favors
steel and aluminum supplies from allies and/or proximate sources (Brazil,
Canada, Mexico, Korea, Japan, etc.).83
(3)Rare earth metals scenario
The United States announces a tariff structure that increases over time
(perhaps in annual increments) on rare earth metals as well as gallium,
indium, and antinomy imported from China—this is expressly intended to
help resuscitate North American production of rare earth metals that was
driven out of the market by Chinese imports.84
(4)Pharmaceuticals import restriction scenario
The United States imposes a similar, increasing-over-time tariff structure
on a schedule of pharmaceuticals and raw ingredients used in the
83 The Trump administration half-heartedly tried to draw lines that made some sense
on national security criteria. For example, in waiving additional tariffs on aluminum
from Canada and Mexico in March 2018, Presidential Proclamation 9704 said, “I
conclude that Canada and Mexico present a special case. Given our shared
commitment to supporting each other in addressing national security concerns, our
shared commitment to addressing global excess capacity for producing aluminum,
the physical proximity of our respective industrial bases, the robust economic
integration between our countries, the export of aluminum produced in the United
States to Canada and Mexico, and the close relation of the economic welfare of the
United States to our national security, see 19 U.S.C. 1862(d), I have determined that
the necessary and appropriate means to address the threat to the national security
posed by imports of aluminum articles from Canada and Mexico is to continue
ongoing discussions with these countries and to exempt aluminum articles imports
from these countries from the tariff, at least at this time.” Proclamation No. 9704, 83
Fed. Reg. 11620 (Mar. 15, 2018), https://www.federalregister.gov/
documents/2018/03/15/2018-05477/adjusting-imports-of-aluminum-into-the-united-
states [https://perma.cc/3RN3-46RE]
84 See David J. Lynch, Biden to Order Sweeping Review of U.S. Supply Chain Weak
Spots, WASH. POST (Feb. 23, 2021), https://www.washingtonpost.com/

business/2021/02/24/biden-supply-chain/ [https://perma.cc/KJ3K-MKHV]
(describing U.S. efforts “to buttress its limited domestic production capacity and
secure supplies from friendly nations” in rare earth metals); Evan Halper,
California’s Electric Car Revolution, Designed to Save the Planet, Also Unleashes a
Toll on It, L.A. TIMES (July 21, 2021), https://www.latimes.com/politics/story/2021-
07-21/californias-electric-car-revolution-designed-to-save-the-planet-inflicts-a-big-
toll-on-it [https://perma.cc/3K7R-HEPP] (“President Biden in June ordered the
Departments of Energy and the Interior to help industry bolster mining and
processing of battery materials” but everyone understands that the cost of
“ loosening China’s grip on the supply chains is large.”).

production of pharmaceuticals; the tariff schedule is across the board but

particularly affects China because, again, Chinese producers drove generic
and raw ingredient manufacturers in other countries out of business. The
schedule of increased tariffs exempts countries with whom the United
States has a mutual defense treaty and who enter into a forward-looking
health care crisis “mutual aid” agreement.
(5)PPE or medical equipment import restriction scenario
The United States imposes a similar, increasing-over-time structure on a
schedule of personal protective gear—masks, surgical garments, gloves to
ensure that there is a certain amount of rapidly expandable domestic
production.85 Or, imagine the same scenario in relation to medical
equipment and/or vaccine manufacturing components, where ‘industrial
policy’ during the COVID-19 pandemic has not been questioned.86 Again,
the schedule of increased tariffs exempts countries with whom the United
States has a mutual defense treaty and who enter into a forward-looking
health care crisis “mutual aid” agreement.
(6)Semiconductor import restriction scenario
The United States imposes a tightening schedule of import restrictions on
semiconductor chips made in China, including chips integrated into
consumer products, so that an iPhone assembled in Shenzhen with chips
manufactured outside China can be imported to the United States, but an
iPhone assembled in Narsapura, India that contains Chinese-fabricated
chips cannot be (since an iPhone can easily have 20+ semiconductor chips,
this law might be limited to the high-end processors, like the A12 chip).
Alternatively, the import schedule is imposed on commodity
semiconductor chips where the United States has identified supply chain
issues.87
85 See Shira Stein, Gaps in Gloves, Masks Spur Look at Post-Pandemic Production,
BLOOMBERG (Feb. 2, 2021), https://www.bloomberglaw.com/bloomberglawnews/
exp/eyJjdHh0IjoiQ1ZOVyIsImlkIjoiMDAwMDAxNzctNWVjNi1kMWZkLWE3Zj
ctNWVjZTgzMWEwMDAxIiwic2lnIjoiZ2RNa0xqdXBXemRJb00xKzJXZFErK3B
MQnd3PSIsInRpbWUiOiIxNjEyMjkzMDAxIiwidXVpZCI6InNPbWRWOS9XRzR
RTVJSY1J1bUFtS2c9PWtYaDZtc2g3SDdWVU9vK0Z1ekIzcnc9PSIsInYiOiIxIn0
= [https://perma.cc/L3HL-RNLV].
86 See Thomas Bollyky & Chad P. Bown, The Real Vaccine Procurement Problem,
FOREIGN AFFS. (June 24, 2021), https://www.foreignaffairs.com/articles/2021-06-

24/real-vaccine-procurement-
problem?check_logged_in=1&utm_medium=promo_email&utm_source=lo_flows&
utm_campaign=registered_user_welcome&utm_term=email_1&utm_content=2022
0302 [https://perma.cc/E2UF-6H7U] (stating that the United States “has invested
heavily in the production of vaccine supplies, including by subsidizing the
manufacture of cellular materials, bioreactors, bioreactor bags, and filtration
equipment – all of which are in short supply globally”).
87 See Jenny Leonard et al., Biden Reassures Chip Summit of Bipartisan Support for
Funds, L.A. TIMES (Apr. 12, 2021), https://www.latimes.com/business/

technology/story/2021-04-12/biden-reassures-chip-summit-of-bipartisan-support-
for-funds; Ana Swanson & Don Clark, Lawmakers Push to Invest Billions in

(7)Combat climate change scenario

After establishing its own standard for industrial production that slows
then halts American contribution to climate change, the United States
requires imported products from other countries to meet equivalent
standards; the new ‘climate change tariff structure’ effectively imposes
cost prohibitive tariffs on some categories of imports from China.
Many of these scenarios are not too distant from policy
proposals being considered in Washington, Brussels, and other major
western capitals. Separate from the question of whether any of these
actions would be wise, which of these, if properly tailored, could be
credibly defended on grounds of Article XXI(b)? To explore that, let
us turn to what has been said about Article XXI since its inception.
III. INTERPRETATION OF ARTICLE XXI IN RUSSIA – TRAFFIC IN

TRANSIT AND THESE HYPOTHETICALS
Perhaps it is ironic that after seventy years of the GATT/WTO

system, partly intended to counter the Soviet Union’s global
influence, the first full adjudication of the GATT Article XXI
security exception came in a dispute between two former members
of the Soviet Union. The panel decision in Russia – Measures
Concerning Traffic in Transit (2019) concerned a trade dispute in the
shadow of the Russian annexation of the Crimea and its attack on
ethnically-Russian areas of eastern Ukraine.88 Ukraine presented “its
case as an ordinary trade dispute in which Russia has imposed
measures that are inconsistent with certain of its obligations under
the GATT 1994 and commitments in Russia’s Accession Protocol”89
while Russia considered “that the dispute involves obvious and
serious national security matters that Members have acknowledged
should be kept out of the WTO.” 90
Semiconductor Industry to Counter China, N.Y. T IMES (June 11, 2021),

https://www.nytimes.com/2020/06/11/business/economy/semiconductors-chips-
congress-china.html [https://perma.cc/KU5H-9QUV].
88 See Russia – Traffic in Transit, supra note 31. Several parties noted “the
significance of this dispute as the first in which a WTO dispute settlement panel will
address the scope of the WTO security exceptions.” See Panel Report, Russia –
Measures Concerning Traffic in Transit, Addendum, paras. 1.3, 1.13, WTO Doc.
WT/DS512/R/Add. 1 (adopted Apr. 5, 2019) (“This proceeding will, therefore, be
the first occasion on which a WTO dispute settlement panel will interpret Article
XXI(b)(iii) of the GATT 1994.”).
89 Russia – Traffic in Transit, supra note 31, para. 7.21.
90 See id. para. 7.22.

According to Ukraine, beginning on January 1, 2016, the

Russian Federation refused to allow Ukrainian goods to be shipped
across Russian territory from Ukraine to Kazakhstan either by road
or rail. Instead, Ukrainian goods bound for Kazakhstan had to transit
Russia from the Belarus border along with additional paperwork
requirements. Ukraine also alleged that Russia had imposed the same
restrictions on transit of Ukrainian goods bound for the Kyrgyz
Republic in July 2016.91 Ukraine further alleged that Russia tightened
these restrictions banning all cross-Russia transit for particular
categories of goods including goods “which originate in specific
countries that have imposed economic sanctions on Russia.”92
Ukraine argued that these and other Russian measures were in
violation of Russia’s commitment under GATT Article V93 requiring
“freedom of transit through the territory of each contracting party,
via the routes most convenient for international transit, for traffic in
transit to or from the territory of other contracting parties.”94
In response, Russia’s “overarching argument [was] that the
Panel lack[ed] jurisdiction to address any of the issues in this dispute
owing to Russia’s invocation of Article XXI(b)(iii) of the GATT
1994.”95 Russia argued that “that there was an emergency in
international relations that arose in 2014”; that said situation
qualified under XXI(b)(iii) (“time of war or other emergency in
international relations”); that this emergency “presented threats to
Russia’s essential security interests”; and that “under Article
XXI(b)(iii), both the determination of a Member’s essential security
91 See id. para. 7.1(a). Ukraine also alleged that Russia then also restricted and/or
banned Ukrainian transshipments to other Central Asian countries as well as
Mongolia. Id. para. 7.1(c).
92 See id. para. 7.1(b). Ukraine also alleged that Russia “banned imports of various
Ukrainian goods since 2013,” including juice products and confections, id. para.
7.14(a), (c), and that those bans further prevented trans-shipment across Russian
territory to other countries. See id. para. 7.15. Russia made parallel allegations “that
Ukraine has imposed import bans on Russian food products, spirits and beer,
cigarettes, railway and tram track equipment, diesel-electric locomotives, chemicals
and certain plant products, which were allegedly adopted by Ukraine on 30
December 2015.” See id. para. 7.18(a).
94 See GATT, supra note 1, art. 5.2.
95 See Russia – Traffic in Transit, supra note 31, para. 3.2, 7.23 (“Russia invokes
Article XXI(b)(iii) of the GATT 1994 and requests the Panel, for lack of
jurisdiction, to limit its findings to recognizing that Russia has invoked a provision
of Article XXI of the GATT 1994, without engaging further to evaluate the merits of
Ukraine’s claims. Russia considers that the Panel lacks jurisdiction to evaluate
measures in respect of which Article XXI of the GATT 1994 is invoked.”).

interests and the determination of whether any action is necessary for

the protection of a Member’s essential security interests are at the
sole discretion of the Member invoking the provision.”96
While not a “jurisdictional” argument as it would be commonly
understood, Russia may have couched its defense in these terms
because the ICJ had justified its jurisdiction over the Nicaragua–U.S.
dispute in 1986 on the grounds that the underlying treaty did not say
“which it considers necessary.”97 Separate from that point, Russia’s
position—”that the Panel should limit its findings to recognizing that
Russia has invoked Article XXI of the GATT 1994”98—forced the
Panel to take up interpretation of Article XXI. Indeed, the parties’
positions were a textbook debate on the article’s meaning, with
Russia arguing that Article XXI is a complete reservation of
sovereignty on national security issues and Ukraine arguing that
WTO Members do not enjoy “total discretion” in Article XXI
matters.99 Among other arguments, Ukraine reasoned that Article
XXI claims are properly subject to a “good faith” requirement as
well as the requirement “that there be a rational relationship between
the action and the protection of the essential security interest at
issue.”100
In an exercise of judicial economy, the Panel jumped over the
question of prima facie GATT violations to its analysis of Article
XXI.101 Dismissing Russia’s claim qua jurisdictional argument, the
panel immediately recognized that the construction of XXI(b)
permits three possible interpretations of the scope of “which it
considers”:
(1) that “which it considers” qualifies only the determination of
what is “necessary”;
(2) that “which it considers” qualifies the determination of both
what is “necessary” and what are “essential security interests”; or
“finally and maximally,”
96 See id. paras. 7.27, 7.29.

97 See id. paras. 7.24–7.28. All participating countries took the view that Russia’s
arguments were not jurisdictional. See id. passim (Australia, para. 7.35); (Brazil,
para. 7.37 (“affirmative defense,” not a jurisdictional argument)); (Canada, para.
7.39 (no exception to DSU jurisdiction)); (China, para. 7.41); (European Union,
para. 7.42 (no exception to DSU jurisdiction)); (United States, para. 7.52 (panel had
jurisdiction even if dispute was non-justiciable)).
100 See id. para. 7.34.
101 See id. paras. 7.150–7.154.

(3) that “which it considers” qualifies the determination of

what is “necessary,” what are “essential security interests,” and “the
determination of the matters described in the three subparagraphs of
Article XXI(b) as well.”102
Of course, the third of these would be the view that Article
XXI is completely self-judging, essentially the Russian position.
The Panel decided against this third interpretation on two
grounds: first, that the three factual scenarios in XXI(b) “operate as
limitative qualifying clauses; in other words, they qualify and limit
the exercise of the discretion accorded to Members under the
chapeau to these [three] circumstances” 103 and, second, that whether
or not those circumstances exist are questions “subject to objective
determination.”104 With importance to future disputes, the Panel
considered that the first two fact patterns in XXI(b)—”relating to
fissionable materials” and “relating to the traffic in arms . . . and . . .
other goods and materials . . . for the purposes of supplying a
military establishment”—required “objective determination” of the
“relationship between the ends and the means.”105 In contrast, the
third XXI(b) fact pattern requires simply an objective determination
that the measure chronologically occurred “in time of . . . war or
other emergency in international relations.”106
In an interpretation that both Beijing and Washington will have
to consider closely, the Panel read “war” to include armed conflict
“between governmental forces and private armed groups, or between
such groups within the same state,” i.e., civil wars,107 an
interpretation that reads the 1947 GATT term “war” expansively to
encompass the more modern notion of armed conflicts.108 The Panel
also opined that “other emergency in international relations” would
102 See id. para. 7.63.
103 See id. para. 7.65.
104
See id. paras. 7.69–7.71.
105 See id. paras. 7.67–.69.
106 See id. paras. 7.70–.71.
107 See id. para. 7.72. Reasonably read, this would seem to include the armed
conflict in Sudan, the Syrian civil war (2011- ), the Yemeni civil war (2014- ) and
any attack on Taiwan by mainland Chinese forces.
108 See, e.g., Geneva Convention (I) for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field art. 3, Aug. 12, 1949 (“[C]onflict
not of an international character”). This understanding of “war” in GATT Article
XXI is important because, as Deborah Pearlstein notes, “[t]he post-Cold War period
has seen wars involving non-state actors (non-international armed conflicts, or
NIACs) eclipse wars between states as the primary source of armed conflict in the
world . . . .” See Deborah Pearlstein, Armed Conflict at the Threshold?, 58 VA. J.
INT’L L. 369, 371 (2019).

be dangerous situations of “global political interaction, primarily

among sovereign states.”109
The Panel viewed a XXI(b)(iii) “emergency” as being
something more severe than “political or economic differences
between Members”110 and characterized it as involving “latent armed
conflict, or of heightened tension or crisis, or of general instability
engulfing or surrounding a state.”111 The Panel noted “that a
significant majority of occasions on which Article XXI(b)(iii) was
invoked concerned situations of armed conflict and acute
international crisis, where heightened tensions could lead to armed
conflict” and there had historically been a good faith effort by
Members “to separate military and serious security-related conflicts
from economic and trade disputes.”112 Below, we will consider
arguments that this limited vision of “emergency” (which was dicta
in the sense that it did not foreclose Russia’s invocation of XXI) is
too narrow.
Significantly, the Russia – Traffic in Transit decision delves
deeply into the travaux preparatoire for Article XXI with the
detailed discussion of the negotiation of the “exceptions” provisions
for the ITO charter. The Panel then discussed the inner workings of
the American delegation, exploring how the delegation was torn
between those who wanted to preserve “the United States’ freedom
of action in relation to its security interests” and those concerned that
a completely self-judging exception “would be abused by some
countries and destroy the efficacy of the entire Charter.”113 According
to the Panel (and the history on which they relied), “[t]hose
favouring the position that some elements of the security exceptions
should be subject to review by the Organization” prevailed within
109 See Russia – Traffic in Transit, supra note 31, paras. 7.72–.73. Beijing surely
would have preferred the word “primarily” not be there.
110 See id. para. 7.75 (“[T]he reference to ‘war’ in conjunction with ‘or other
emergency in international relations’ in subparagraph (iii), and the interests that

generally arise during war, and from the matters addressed in subparagraphs (i) and
(ii), suggest that political or economic differences between Members are not
sufficient, of themselves, to constitute an emergency in international relations for
purposes of subparagraph (iii).”).
111
See id. para. 7.76.
112 See id. para. 7.81.
113 See id. para. 7.89 (citing KENNETH J. VANDEVELDE, THE FIRST BILATERAL
INVESTMENT TREATIES: U.S. POSTWAR FRIENDSHIP, COMMERCE, AND NAVIGATION

TREATIES 145–54 (Oxford University Press 2017)).

the U.S. delegation.114 At that point, the Americans proposed the

language that became Article XXI.
In a May 1947 exchange over the meaning of key phrases in
the language,115 the Dutch delegate asked about the meaning of
“essential security interests” and “emergency in international
relations.”116 While not completely answering the query, the
American delegate did say that the United States had tried “to limit
the exception so as to prevent the adoption of protection for
maintaining industries under every conceivable circumstance”117—a
piece of negotiating history that could be used to critique the Trump
steel and aluminum tariffs. As to the language which is now
XXI(b)(iii), the American delegate went onto the say:
[T]he limitation, I think, is primarily in the time. First, “in time of war.” I
think no one would question the need of a Member, or the right of a
Member, to take action relating to its security interests in time of war and
to determine for itself—which I think we cannot deny—what its security
interests are.
As to the second provision, “or other emergency in international
relations,” we had in mind particularly the situation which existed before
the last war, before our own participation in the last war, which was not
until the end of 1941. War had been going on for two years in Europe and,
as the time of our own participation approached, we were required, for our
own protection, to take many measures which would have been prohibited
by the Charter. Our exports and imports were under rigid control. They
were under rigid control because of the war then going on.118
114 See id. para. 7.90. While it appears that the panel did not have the benefit of
Pinchis-Paulsen’s deep research into the inner workings of the U.S. delegation, she
agrees that the panel aligned its views with the outcome of the U.S. delegation’s
internal discussions. See Pinchis-Paulsen, supra note 68, at 113, 176–77.
115 I say “key phrases” because this particular exchange concerned “essential
security interests” and “emergency in international relations” in the older, general

exceptions clause that the Americans had proposed in the ITO Charter negotiations.
But the revised American proposal for a separate, free-standing security exception,
including the self-judging language, had already been submitted by the United States
delegation to the preparatory committee and was tabled by the Chairman later in the
same meeting.
116 See Russia – Traffic in Transit, supra note 31, para. 7.92.
117 See id. para. 7.92 (quoting Second Session of the Preparatory Committee of the
United Nations Conference on Trade and Employment, Verbatim Report, Thirty-

Third Meeting of Commission A Held on Thursday, 24 July 1947, E/PC/T/A/PV/33
at 20).
118 See id. The travaux preparatoires here was in relation to the ITO Charter, but the
language was reproduced whole cloth in GATT. The Panel noted that this “version
of Article 94 of the Geneva Draft of the ITO Charter, adopted on 22 August 1947,

With this historical record, the Russia – Traffic in Transit Panel

accepted that the United States, the demander of the “emergency in
international relations” language, “had in mind particularly the
situation that existed between 1939 and 1941” when the United
States was not yet at war, but “still found it necessary to take certain
measures for the protection of its essential security interests.”119
After all this analysis, the Panel concluded that the question
whether “the requirements of the enumerated subparagraphs of
Article XXI(b)” are satisfied is to be decided “objectively rather than
by the invoking Member itself,” meaning that a country’s self-
judgment under the “which it considers” language does not extend to
the determination if any of the XXI(b) subparagraph circumstances
are present. 120
Moving to the “objective” question, whether there was a state
of war or other emergency in international relations, the dispute took
a surreal turn—with Russia unwilling to admit to its occupation of
Crimea and the ongoing military confrontation in eastern Ukraine.
Instead, Russia referred to hypotheticals and cited Ukrainian official
documents to say what the Russian representatives would not allow
to pass their tongues: “the annexation of the Autonomous Republic
of Crimea and the military conflict in the east.”121 The Panel handled
this Russian obfuscation diplomatically and judiciously. Using UN
General Assembly actions as evidence and emphasizing that they
were not deciding the character of “the situation between Russia and
Ukraine under international law in general,”122 the Panel concluded
that “the situation between Ukraine and Russia since 2014
constitutes an emergency in international relations, within the
meaning of subparagraph (iii) of Article XXI(b) of the GATT
1994.”123
Having decided “objectively” that Russia and the Ukraine
found themselves in one of the enumerated fact patterns of XXI(b),
the Panel turned to the XXI(b) chapeau. The Panel also offered that
was entitled ‘General Exceptions’ and contained wording nearly identical to that
appearing in Article XXI of the GATT 1947.” See id. para. 7.96.
119 See id. para. 7.76 n.152.
120 See id. paras. 7.100–7.101.
121 See id. para. 7.115.
122
See id. para. 7.121 (“The Panel notes that it is not relevant to this determination
which actor or actors bear international responsibility for the existence of this
situation to which Russia refers. Nor is it necessary for the Panel to characterize the
situation between Russia and Ukraine under international law in general.”).
123 See id. para. 7.123.

essential security interests “generally” refers to “interests relating to

the quintessential functions of the state, namely, the protection of its
territory and its population from external threats, and the
maintenance of law and public order internally.”124 As WTO panels
are wont to do, they observed that adjectives do have meaning, i.e.,
“essential security interests” is a narrower concept than plain
“security interests.”125
But does “which it considers” apply to determining both what
counts as “necessary” and what counts as “essential security
interests”? It apparently does: the Panel concluded that “it is left, in
general, to every Member to define what it considers to be its
essential security interest.”126
But the Panel reasoned that this self-judging determination is
still subject to two requirements. First, there is the Member’s
“obligation to interpret and apply Article XXI(b)(iii) of the GATT
124 See id. para. 7.130.

125 See id. For a parallel example, see Panel Report, Canada–Patent Protection of
Pharmaceutical Products, para. 7.30, WTO Doc. WT/DS114/R (adopted Apr. 7,
2000) (“The word ‘exception’ by itself connotes a limited derogation, one that does
not undercut the body of rules from which it is made. When a treaty uses the term
‘limited exception’, the word ‘limited’ must be given a meaning separate from the
limitation implicit in the word ‘exception’ itself. The term ‘limited exception’ must
therefore be read to connote a narrow exception.”).
126 Russia – Traffic in Transit, supra note 31, para. 7.131. This concurred with the
express position of several WTO Members who intervened in the dispute, including
Australia, Japan, and Singapore. See, e.g., Third Party Written Submission of
Australia, Russia – Measures Concerning Traffic in Transit, para. 24, WTO Doc.
WT/DS512 (Nov. 8, 2017) (“The chapeau text of Article XXI(b)(iii) therefore
indicates a subjective standard that permits a Member to determine for itself what
action ‘it considers necessary’ to protect ‘its essential security interests.’”). Australia
added, “[t]he critical importance of the national security interests to Members’
fundamental sovereignty was pivotal in the careful drafting of the provisions and the
clear deference provided to Members in the text.” See id. para. 25;
WT/DS512/R/Add.1, Annex D-6, para. 25, at 92–93 (Executive Summary of the
Arguments of Japan) (“Fourth, Japan notes that what is to be protected by the
challenged measure is ‘its essential security interests’ and not unqualified ‘essential
security interests.’ Thus, whether the security interests are ‘essential’ should be
examined from the viewpoint of the Member taking the measure at issue, rather than
that of any other Member.”); WT/DS512/R/Add.1, Annex D-8, para. 13, at 100
(Executive Summary of the Arguments of Singapore) (“This points to the self-
judging nature of the assessment in Article XXI(b) and indicates that a WTO
Member is allowed to determine with a significant degree of subjectivity what action
‘it considers necessary’ to protect ‘its essential security interests’. This would mean
that a WTO Member has wide latitude to determine: (a) the action taken for the
protection of its essential security interests, including the nature, scope and duration
of the measure; and (b) the necessity of the measure.”).

1994 in good faith.”127 In words that might have been pointed at the
erratic actions of the Trump administration, the Panel said
The obligation of good faith requires that Members not use the exceptions
in Article XXI as a means to circumvent their obligations under the GATT
1994. A glaring example of this would be where a Member sought to
release itself from the structure of “reciprocal and mutually advantageous
arrangements” that constitutes the multilateral trading system simply by
re-labelling trade interests that it had agreed to protect and promote within
the system, as “essential security interests,” falling outside the reach of
that system.128
Second, the Panel then held that a Member must articulate its
essential security interest.129
At this point, to deal with the Russian refusal to speak of the
occupation of Crimea and parts of eastern Ukraine, the Panel reverts
to a familiar WTO interpretative tool—the accordion nature of
GATT obligations: “[w]hat qualifies as a sufficient level of
articulation will depend on the emergency in international relations
at issue.”130 The less the emergency is akin to armed conflict or the
breakdown of law and public order, the more “a Member would need
to articulate its essential security interests with greater specificity.”131
But despite Russian “allusiveness,” the Panel felt that “Russia’s
articulation of its essential security interests [wa]s minimally
satisfactory,” suggesting what amounts to a very deferential test one
that is some distance along the spectrum towards “self-judging.”132
With the final issue being “necessity,” the Panel itself turned
allusive, avoiding that word all together and simply saying that the
good faith inquiry required “that the measures at issue meet a
minimum requirement of plausibility in relation to the proffered
essential security interests, i.e. that they are not implausible as
measures protective of these interests.” 133 Instead of being a question
whether the measures are objectively “necessary,” the Panel
reasoned that good faith performance of a Member’s duty to have a
subjective belief of “necessity” could be met by considering
“whether the measures are so remote from, or unrelated to . . . the
proffered essential security interests.”134 Elizabeth Trujillo and others
128 See id. para. 7.133.
129 See id. para. 7.134.
130
See id. para. 7.135.
131 See id.
132 See id. para. 7.137.
133 See id. para. 7.138.
134 See id. paras. 7.138–7.139.

have rightly called this a “nexus” requirement, although it seems to

be a very loose one.135
A. A Coda—What the Americans Intended in 1947
From the ITO/GATT travaux preparatoire we know how

GATT Article XXI arose from the original general exceptions
provision in the draft ITO Charter. But Mona Pinchis-Paulsen has
recently published a carefully researched reconstruction of the
internal U.S. Government negotiations that led to the various
proposals the U.S. made.136 Her research provides wonderful insights
into the background for separating out the national security
exceptions (what is now GATT Article XXI versus XX), the scope
of what was intended to be covered (for example the addition of
precursor materials to the fissible materials exception), the heart-felt
disagreements within the U.S. Government on how “self-judging”
the security exceptions needed to be, and the stable consensus within
the U.S. Government that non-violation “nullification and
impairment” remained a remedy for a country that felt its trade
benefits impinged by another country’s national security decisions.
Those deliberations within the U.S. Government have little or
no role to play under the principles of treaty interpretation—unless
the deliberations or the outcomes of the deliberations were
communicated to other countries during the course of the
negotiations.137 Nonetheless, the Russia – Traffic in Transit Panel
reached the same conclusion as to the effect of “it considers” as the
U.S. Government did. For example, in July 1947, Harold Neff, one
of the members of the U.S. delegation to the Geneva ITO
conference, concluded (unhappily) that the “effect of the language is
to say that, if a measure relates, for example, to arms, ammunition
and implements of war, then a Member may take such action as it
deems necessary.”138
135 See Trujillo, supra note 68, at 216 (“In other words, there must be some nexus
between the measure taken and the essential security interest being addressed; that
is, the measure must meet a minimum standard of plausibility in relation to the
essential security interest.”).
136 See generally Pinchis-Paulsen, supra note 68 (reconstructing the internal U.S.
negotiations that led to future proposals).

137
See Vienna Convention on the Law of Treaties arts. 31–32, Jan. 27, 1980, 1155
U.N.T.S. 331.
138 See Pinchis-Paulsen, supra note 68, at 165 (emphasis omitted and added)
(quoting Harold Neff, ‘Security Exceptions to the ITO Charter,’ Memorandum for
the Chairman of the US Delegation, Jul. 10, 1947, A1-704, file ‘US

Professor Pinchis-Paulsen’s research has uncovered

memoranda in State Department records finding “questions and
answers” that State officials prepared for Congressional hearings in
1947. In answering questions about what would become the GATT
Article XXI(b) language State officials were prepared to take the
view that “[t]he necessity for the action taken is not subject to
review; the relationship of such action to the subjects referred to [in
the Article] is subject to review.”139
B. Russia – Traffic in Transit and U.S. Essential Security Interests
The Russia – Traffic in Transit Panel concluded that each

country must judge its own essential security interests subject to a
requirement of good faith and a general “plausibility” test. Among
other things, that means that essential security interests may vary
tremendously among WTO Members. For example, although their
populations and economies are similar in size, the “essential security
interests” of Argentina and Vietnam may be very different; each has
a much larger neighbor immediately to its north, but that does not
mean their essential security interests in relation to those respective
neighbors are the same.
While other elements of Article XXI may constrain its
application, “essential security interests” need not be limited to
military defense of sovereignty. In a 2006 ICSID arbitration between
LG&E Energy Corporation and Argentina, the arbitral tribunal had
to consider whether a series of economic measures taken by
Argentina could be considered as directed toward “essential security
interests” as recognized in the 1991 Bilateral Investment Treaty
between the United States and the Argentine Republic.140 In the face
Delegation/Minutes/June 21-July 30, 1947’, RG 43, box 133, NACP at 1).

According to Pinchis-Paulsen, “Neff argued that the ‘content’ of the
exceptions . . . [does] ‘not fall within the power of any individual Member to
determine.’” Id.
139 See Pinchis-Paulsen, supra note 68, at 185.
140 See ICSID: LG&E Energy Corp. v. Argentine Republic, para. 3, Oct. 3, 2006, 46
I.L.M. 40 (“The Bilateral Investment Treaty between the United States of America
and the Argentine Republic Concerning the Reciprocal Encouragement and
Protection of Investments was signed on 14 November 1991 . . . (and entered into
force 20 on October 1994).”). “Article XI of the Bilateral Investment Treaty
provides: ‘This Treaty shall not preclude the application by either Party of measures
necessary for the maintenance of public order, the fulfillment of its obligations with
respect to the maintenance or restoration of international peace or security, or the
protection of its own essential security interests.’” Id. para. 204.

of a near economic collapse, the arbitral panel concluded that for a

two-year period “Argentina was in a period of crisis during which it
was necessary to enact measures to maintain public order and protect
its essential security interests.”141 The panel expressly rejected the
idea that “essential security interests” was “only applicable to
circumstances amounting to military action and war.”142
Since Article XXI concerns state action, one must also consider
differences in capacities. Keeping the Straits of Hormuz open for oil
shipments or preventing offensive capability in space, which could
destroy the global network of GPS satellites, might be an “essential
security interest” of many WTO Members, but very few have the
capacity to be prepared, both short-term and long-term, to defend
those two particular security interests.
More importantly, the essential security interests of the United
States are plausibly unique: no other country has binding treaty
obligations to defend over 1.6 billion people in fifty other countries
covering the bulk of four continents. In service of that defense of 1.6
billion people, the United States maintains around 800 military
facilities of various sorts on foreign territory, a surface navy of 425+
ships, and an air force of 13,000 aircraft.143 In that context, it is
reasonable to say that a reliable supply of steel and aluminum is a
different part of the national security equation for the United States
than for other countries. Notice that one cannot really say “for a
country like the United States” because there is no other country with
141 See id. para. 226.

142 See id. para. 238. (“The Tribunal rejects the notion that Article XI is only
applicable in circumstances amounting to military action and war. Certainly, the
conditions in Argentina in December 2001 called for immediate, decisive action to
restore civil order and stop the economic decline. To conclude that such a severe
economic crisis could not constitute an essential security interest is to diminish the
havoc that the economy can wreak on the lives of an entire population and the
ability of the Government to lead. When a State’s economic foundation is under
siege, the severity of the problem can equal that of any military invasion.”).
143 See Jordan Valinksy, Here’s the Entire U.S. Navy Fleet in One Chart, POPULAR
MECHANICS, (Aug. 22, 2017), (“The United States Navy is a powerhouse. The fleet
consists of roughly 430 ships in active service or reserve.”),
https://www.popularmechanics.com/military/navy-ships/a15297/us-navy-entire-
fleet/. But the Navy itself considers that the “battle fleet” consists of approximately
300 ships. U.S. Navy, Naval Vessel Register, Fleet Size, at
https://www.nvr.navy.mil/NVRSHIPS/FLEETSIZE.HTML; Nancy Levin, 10
Largest Air Forces in the World, LARGEST.ORG (Dec. 4, 2018),
https://largest.org/technology/air-forces/ [https://perma.cc/3TSX-7MSV].

anything approaching both the United States’ range of commitments

and material efforts to meet those commitments credibly.144
On the Russia – Traffic in Transit plausibility test, one can
argue that there is not just a difference between the essential security
interests of most WTO Members and the United States’ essential
security interests; there is a quantum difference. Indeed, for a
significant percentage of WTO dispute panelists, it is likely that,
through mutual defense treaties, the “security interests” of the United
States include their own country’s defense.
C. Russia – Traffic in Transit and “Emergencies in International

Relations”
What does Russia – Traffic in Transit say about “emergencies

in international relations” as that might impact the China–U.S. trade
relationship?
We can safely say that if mainland China’s armed forces
attacked Taiwan the world would face an Article XXI(b)(iii) “time of
war or other emergency in international relations” situation.145
Beijing would understandably claim that the conflict was a civil war
or, with some accuracy, the continuation of a civil war that never
resolved. But Russia – Traffic in Transit already provides
precedent146 that “time of war” includes armed conflict “between
governmental forces and private armed groups, or between such
groups within the same state,” i.e. civil wars.147 In the Taiwan or
South China Sea crisis scenario, the United States and other
developed countries would be entitled under Article XXI to deploy a
wide range of WTO-inconsistent actions—something we will return
144 By comparison, the second largest air force in the world has been (before the
2022 Ukraine war) Russia’s with 3,419 aircraft—less that 1/3 of the U.S. Air Force.
Levin, supra note 143. But the U.S. Department of Defense, using the “battle fleet”
number of 293 ships, places the U.S. Navy as smaller than China’s 350 ship fleet.
See OFF. OF THE SEC’Y OF DEF., MILITARY AND SECURITY DEVELOPMENTS INVOLVING
THE PEOPLE’S REPUBLIC OF CHINA (2020).
145 See Tony Munroe & Yew Lun Tian, China Sharpens Language, Warns Taiwan
That Independence ‘Means War,’ REUTERS (Jan. 28, 2021),

https://www.reuters.com/article/us-china-taiwan-idUSKBN29X0V3
[https://perma.cc/HE3S-J4XW]; see also GATT, supra note 1, at art. XXI.
146
Of course, I use the word “precedent” here figuratively as the WTO dispute
resolution system is not a stare decisis precedential system and each decision
technically applies only to the disputant parties. See Russia – Traffic in Transit,
supra note 31, para. 7.72.
147 See id.

to in the discussion below of the Falklands/Malvinas crisis. A serious

border conflict between China and India or China and Vietnam also
might likely be as much of an “emergency in international relations”
as the Russian incursion into eastern Ukraine.
One question under XXI(b)(iii) would be which countries are
entitled to react to such events. In GATT/WTO discussions, some
Members have clearly argued that there must be some kind of
connection between the crisis and the member who acts under
Article XXI. But Article XXI(b)(iii) only requires that the measures
taken occur during the time when there is a “war or other emergency
in international relations”; any nexus requirement between a crisis
and a country has to be found in “essential security interests,” which
the Russia – Traffic in Transit found is self-judging, subject to the
obligation to make that determination in good faith.148 In other words,
to the degree one can argue that its global presence gives the United
States sui generis essential security concerns, perhaps the United
States could impose trade restrictions in reaction to an India–China
or Vietnam–China war.
What else could count under XXI(b)(iii)? The Russia – Traffic
in Transit Panel gave a narrow reading of “emergencies” under (iii)
that is historically grounded. And Pinchis-Paulsen has shown how
the Americans internally agreed to “international emergencies” to
avoid any phrase that intimated preparations for war and then
changed that phrase to “emergency in international relations”
precisely to rule out economic problems from the eligible
emergencies.
But other ITO/GATT parties were not party to that intra-U.S.
drafting history and it cannot count as travaux preparatoire under
VCLT Articles 31 and 32. What does count is that the equally
authoritative French and Spanish versions of GATT use an arguably
wider phrase, “en temps de guerre ou en cas de grave tension
internationale” and “en tiempos de guerra o en caso de grave tensión
internacionale,” respectively.149 Both of those may translate into
English more naturally as “in time of war or in case of severe
international tension.”150
What counts as a situation of “severe international tension”?
Although arbitration proceedings against China under the United
148
See id. paras. 7.60, 7.72.
149 See Second Written Submission of the United States, United States – Certain
Measures on Steel and Aluminum Products, WT/DS564 (Apr. 17, 2020).
150 My thanks to several colleagues who are francophone or hispanophone jurists or
diplomats for their input on this point, although the conclusion remains my own.

Nations Convention on the Law of the Sea (UNCLOS) determined

that China has violated the sovereignty of the Philippines in multiple
ways in the South China Sea and found against every Chinese claim
to a large chunk of that oceanic territory,151 perhaps we cannot say
that the South China Sea has yet become an arena of severe
international tension. But the tension has been serious enough for
high-level government-to-government assurances while all parties
continue to strengthen their own positions in the contested area.
More broadly, some commentators question this narrow
“originalist” interpretation of “emergencies in international
relations.” As of early 2021, thirty-eight countries—including Japan
and the entire European Union—have declared a climate change
“emergency.”152 According to one advocacy group, “950 million
people, or [twelve] percent of the world’s population, currently live
under a ‘climate emergency.’”153 In such circumstances, can any of
those jurisdictions act under Article XXI(b)(iii)’s provision for
action “in time of war or other emergency in international
relations”?154 Or does the failure of international coordination to
confront the existential threat of climate change not count as an
“emergency in international relations”?155 Certainly, there are many
commentators who believe that “emergency in international
relations” should, like other key elements of GATT/WTO
151 See U.S. Indo-Pac. Command, Off. of the Staff Judge Advoc., The South China
Sea Arbitration Award, 97 INT’L L. STUD. 62, 63–64 (2021); see also U.S. Indo-Pac.
Command, Off. of the Staff Judge Advoc., China’s Excessive Maritime Claims, 97
INT’L L. STUD. 18, 23 (2021).
152 See Shannon Osaka, 38 Countries Have Declared a “Climate Emergency.”
Should the U.S. Be Next?, SALON (Jan. 28, 2021, 6:30 AM),
https://www.salon.com/2021/01/28/38-countries-have-declared-a-climate-
emergency-should-the-us-be-next_partner/ [https://perma.cc/38A5-4SPQ]; Ledyard
King, ‘A Moral Imperative:’ AOC, Bernie Sanders Call for Climate Emergency
Declaration, USA TODAY (July 9, 2019, 4:19 PM),
https://www.usatoday.com/story/news/politics/2019/07/09/aoc-bernie-sanders-push-
congress-declare-climate-emergency/1684407001/ [https://perma.cc/DEA4-YZ43].
153 See Osaka, supra note 152.
155 See Trujillo, supra note 68, at 218 (“Would climate change or a global health
pandemic become the type of emergency contemplated by a crisis involving ‘other

emergency in international relations,’ as expressed in the GATT national security
exception?” (internal citation omitted)). But see Felicity Deane, Comment, The
WTO, the National Security Exception and Climate Change, 6 CLIMATE & CARBON
L. REV. 149, 149, 155–56 (2012) (arguing that it is unlikely that Article XXI can be
used to excuse GATT-inconsistent climate mitigation measures).

machinery, evolve in meaning.156 And there is no question that many

countries, including the United States, are self-consciously
redefining their national security interests to include both the causes
and effects of climate change.157
IV. DECADES OF DISCUSSION ON ARTICLE XXI—AND WHAT IT

MIGHT SAY ABOUT THESE SCENARIOS
In the 2019 Russia – Measures Concerning Traffic in Transit

decision, the WTO Panel concluded that there has not been any
consistent subsequent practice by GATT/WTO Members to provide
interpretative guidance on Article XXI under Vienna Convention
standards.158 But that does not mean that the historical record has
156 See, e.g., Jay Manoj Sanklecha, The Limitations on the Invocation of Self-
Judging Clauses in the Context of WTO Dispute Settlement, 59 INDIAN J. INT’L L.
77, 31 (2021) (“The Panel noted that political or economic conflicts, unless rising to
military and defence interests or maintenance of public order interests, would not
constitute emergencies in international relations. This appears to be contrary to
practice, where the security exception had been invoked by member States to
address political conflicts. Such an interpretation can also run counter to the
developmental aspirations of third world countries which face unique national
security issues owing to changing geo-political/climatic conditions that cannot be
aligned with the tradition understanding of the term emergency in international
relations. While the Panel appeared to justify this inter alia on the basis of the
negotiating history, it is worth noting that WTO tribunals, have adopted
interpretations of text which have gone much beyond than that originally intended
by the drafters.”); see also Shin-yi Peng, Cybersecurity Threats and the WTO
National Security Exceptions, 18 J. INT’L ECON. L. 449, 470–72 (2015) (considering
whether cybersecurity threats are essential security interests under Article XXI).
157 For example, the 2021 “Climate Risk Analysis” of the U.S. Department of
Defense recognizes that “Climate change is reshaping the geostrategic, operational,

and tactical environments with significant implications for U.S. national security and
defense” and speaks to “[g]lobal efforts to address climate change – including
actions to address the causes as well as the effects.” See DEP’T. OF DEF.,
DEPARTMENT OF DEFENSE: CLIMATE RISK ANALYSIS 2 (2021). France has also
included climate change in its assessment of its national security interests. See FR.
STRATEGIC REV. COMM., DEFENCE AND NATIONAL SECURITY STRATEGIC REVIEW 29
(2017).
158 See Russia – Traffic in Transit, supra note 31, at para. 7.80 (“In the Appendix to
this Report, the Panel surveys the pronouncements of the GATT contracting parties
and WTO Members to determine whether the conduct of the GATT contracting
parties and the WTO Members regarding the application of Article XXI reveals a
common understanding of the parties as to the meaning of this provision. The
Panel’s survey reveals differences in positions and the absence of a common
understanding regarding the meaning of Article XXI. In the Panel’s view, this record
does not reveal any subsequent practice establishing an agreement between the

been blank—far from it. Over the decades, many countries have
asserted Article XXI as a basis for restricting imports or exports in
fact patterns that may bear on the hypotheticals above. Sometimes
they have made these claims and the other GATT/WTO Members
have not reacted at all; other times, there has been substantial back
and forth in GATT and WTO meetings. For purposes of how Article
XXI might apply to the hypothetical U.S. actions above, let us
organize these “Article XXI episodes” into five clusters: (a)
scenarios where a country banned imports for safety reason; (b)
scenarios of war or international emergency under XXI(b)(iii); (c)
scenarios of strategic import restrictions under XXI(b)(ii); (d)
scenarios of strategic export restrictions under XXI(b)(ii); and (e)
what we might call “total dispute” scenarios where one country
broadly seeks to “decouple” its economic relations from another
country.159
A. Scenarios of Banning Imports for Safety Reasons
Perhaps the least relevant to the hypotheticals above is the 1970

GATT review of import bans in both Japan and Switzerland on
various “fissile chemical elements.” Switzerland and Japan both
justified their respective bans on importation of fissile materials on
Article XXI grounds, with the Swiss expressing surprise that other
countries did not consider restrictions on such imports to be in their
essential security interests.160 Presumably falling under Article
Members regarding the interpretation of Article XXI in the sense of Article 31(3)(b)
of the Vienna Convention.”).
159 This discussion does not include every known Article XXI or XXI-like claim;
frankly, some are not worth mentioning. For example, in the early 1950s, Denmark
and the Netherlands objected to some U.S. restrictions on cheese importations that
the U.S. had initially justified on “essential security interest” grounds. Public
statements showed that U.S. government officials did not believe that the restrictions
were justifiable on GATT Article XXI grounds. See Memorandum by the United
States Delegation, Item 30 – Restrictions on Imports of Dairy Products into the
United States, Memorandum Submitted by the United States Delegation, at 6, GATT
Doc. GATT/CP.6/28/Add.1 (Sept. 24, 1951) (The Under Secretary of Agriculture
noted to one Senate Committee that “[i]t seems unlikely that we will be able to
convince these [objecting] countries that certain imports, which would at most have
a limited effect on our agriculture, would endanger the essential security interests
and economy of the United States.”). Being unable to get Congress to remove the
restriction, the U.S. agreed to Dutch withdrawal of tariff concessions on American
wheat—a retaliatory action that continued until at least 1959.
160 See Notes on Individual Import Restrictions, Committee on Trade in Industrial
Products, Joint Working Group on Import Restrictions, Notes on Individual Import

XXI(b)(i), the ban in fissile material was apparently to keep nuclear

technology out of each country, so a quite different rationale than a
claim to maintain a country’s productive base in fissile elements or
an export ban to prevent another country from acquiring fissile
elements. Today, we might expect that a country seeking to ban the
importation of fissile materials might defend its actions on GATT
Article XX, not Article XXI.
A similar scenario—with possible claims under GATT Article
XX or Article XXI—can be seen in Brazilian import restrictions
related to Brazil’s controlled products lists. In 2003, the United
States raised concerns about Brazil’s import licensing system for
certain lithium compounds disagreeing with Brazil’s inclusion of the
compounds in measures directed toward the production of nuclear
energy.161 The United States viewed the connection between these
lithium products and nuclear energy as tenuous, but as of 2009,
Brazil maintained that “since some lithium compounds have an
application in the production of nuclear energy,” the import
restriction was sufficiently related to “a matter of national
security.”162
The European Union made similar queries toward Brazil in
2013 over Brazilian restrictions on the importation of nitrocellulose.
The EU contended that civilian-grade nitrocellulose is used only for
“commercial purposes such as for applications like printing inks,
wood lacquer, or nail varnish” and that Brazilian import barriers
shielded a local monopoly producer.163 Brazil contended that
nitrocellulose could be a hazardous, explosive product and, therefore,
import restrictions were legitimate for “security and safety
reasons.”164 In both of these cases, Brazil’s allegedly overinclusive
controlled products regime might be defended as a permissible
Restrictions, at 71, 73, WTO Doc. COM.IND/W/28/Add.1 (Aug. 26, 1970) (“The
representative of Switzerland . . . expressed surprise that only two countries
appeared, from the table, to have similar restrictions on the product.”).
161 See Replies from Brazil to Questions from the United States, Brazil’s Import
Licensing Requirements for Chemical Products and Goods Related to Nuclear

Applications, at 2, WTO Doc. G/LIC/Q/BRA/2 (May. 19, 2004).
162 See Replies from Brazil to Questions from the United States, Brazil’s Non-
Automatic Import Licensing Procedures, WTO Doc. G/LIC/Q/BRA/13 (Oct. 21,

2009).
163
See Chairperson: Mr. Tsotetsi Makong (Lesotho), Minutes of Meeting Held on 20
October 2014, para. 5.3, WTO Doc. G/LIC/M/40 (Feb. 10, 2015).
164 See Replies from Brazil to Questions from the European Union, Questions from
the European Union to Brazil Regarding the Importation of Nitrocellulose, at 3,

WTO Doc. G/LIC/Q/BRA/19 (Nov. 7, 2014).

defection from GATT disciplines under either Article XX or Article

XXI.
These three claims (Japan, Switzerland, and Brazil) might
weakly support a pharmaceuticals import restriction scenario *if* it
was justified in part on drug safety concerns and the inability to test
all pharmaceuticals coming into the United States. I say “weakly”
because three of the four cases fell under XXI(b)(i) [relating to
fissionable material]. All four of these cases might also be justified
under GATT Article XX as “necessary to protect human, animal or
plant life or health” but so too might a pharmaceuticals import
restriction scenario if justified, in part, on concerns about the safety
of pharmaceuticals and pharmaceutical raw ingredients.165
B. Other “War or Other Emergency” Scenarios
The 1982 Falkland/Malvinas war between Argentina and Great

Britain provided another occasion when Article XXI was on full
parade with complete lack of unanimity as to how it applied to a
genuine international crisis. The European Community, Canada, and
Australia suspended all imports from Argentina on the grounds of
Article XXI (here, clearly XXI(b)(iii)). The Argentine seizure of the
Falkland/Malvinas Islands in 1982 did not directly jeopardize the
national security of Australia, Belgium, Canada, Germany, Hungary,
Italy, or Luxembourg; none of these countries could say they were in
conflict with Argentina, and none had far-flung isolated island
possessions to protect against unprovoked seizure. Yet, all argued
they could embargo Argentina on the basis of “essential security
interests.”166 On behalf of its members, the European Community
argued that Article XXI was an “inherent right” and the “exercise of
these rights . . . required neither notification, [nor] justification, nor
approval, a procedure confirmed by thirty-five years of
165See GATT, supra note 1, art. XX(b).

166The twenty GATT members arguing that the EU trade embargo of Argentina was
not subject to GATT review were Australia, Canada, Hong Kong, Hungary, Japan,
New Zealand, Norway, the Philippines, Singapore, the United States, and the ten
countries of the European Communities (Belgium, Denmark, France, West
Germany, Greece, Ireland, Italy, Luxembourg, Netherlands, and the United
Kingdom). See Minutes of Meeting, Held in the Centre William Rappard on 7 May
1982, at 7–11, C/M/157 (June 22, 1982) [hereinafter GATT Council Meeting May
1982].

implementation of the General Agreement.”167 Australia also took the

view that neither notification nor justification was necessary for
invocation of Article XXI.168 Canada considered its action in line
with prior understandings of Article XXI and argued that, what
would be unprecedented, would be a GATT decision to examine a
member’s Article XXI decision.169
But several Latin American and eastern European countries
along with Pakistan and Zaire opposed the trade sanctions against
Argentina without clearly stating whether they believed the sanctions
legal under Article XXI.170 Interestingly, Brazil took the position that
while the invasions of the Falkland/Malvinas had triggered “an
emergency in international relations,” the crisis was limited to one
region and countries outside the region and countries not directly
involved in the conflict should not invoke XXI(b)(iii).171 Spain
similarly believed that Great Britain could invoke Article XXI, but
not the entire European Community. 172 On the other hand, Norway,
New Zealand, and Singapore all adopted positions that supported a
GATT member’s right to self-judge “essential security interests”
under Article XXI. 173
While there was some discussion about whether the GATT
Council should attempt a formal interpretation of Article XXI, it was
clear that consensus would be elusive. Eventually, in November
1982, the GATT adopted a Ministerial Declaration concerning
Article XXI that had something for everyone.174 The declaration’s
preambular clauses recognized that the Article XXI exceptions
“constitute an important element for safeguarding the rights of
contracting parties when they consider that reasons of security are
involved.”175 But the Declaration also acknowledged that use of
Article XXI could cause “disruption and uncertainty for international
trade and affect benefits accruing to contracting parties under the
167 See id. at 10–12; Communication to the Members of the GATT Council, Trade
Restrictions Affecting Argentina Applied for Non-Economic Reasons, para. 1(b),
GATT Doc. L/5319/Rev.1 (May 18, 1982).
168 See GATT Council Meeting May 1982, supra note 166, at 11.
169 See id. at 10–11.
170 See id. at 5 (Uruguay, Zaire), at 6 (Colombia, Cuba, Dominican Republic,
Ecuador, Uruguay) at 7 (Pakistan), at 9 (Poland)

171 See id. at 5.
172
See id. at 6.
173 See id. at 7 (Singapore), at 8 (Hungary), at 9 (New Zealand), at 10 (Norway).
174 See Decision Concerning Article XXI of the General Agreement, Decision of 30
November 1982, GATT Doc. L/5426 (Dec. 2, 1982).

175 See id.

General Agreement” and urged that any GATT Member using

Article XXI “should take into consideration the interests of third
parties which may be affected.”176
The operative provisions of the November 1982 declaration
were only a commitment that “contracting parties should be
informed to the fullest extent possible of trade measures taken under
Article XXI”—a compromise on the question whether Article XXI
required notification—and that any countries affected by actions
taken under Article XXI “retain their full rights under the General
Agreement”—an oblique, but clear reference to the idea that the
target of Article XXI trade restrictions can bring an Article XXIII
“non-violation” nullification and impairment claim.177
Obviously, the Falklands/Malvinas example is the most
relevant to a Taiwan or South China Sea crisis scenario and provides
a precedent for countries to completely and abruptly curtail trade
with China in the event of regional military hostilities. The GATT
deliberations during the Falkland/Malvinas crisis do not tell us much
about the other scenarios.
C. Scenarios of Strategic Import Restrictions Under XXI(b)
Let us turn to quieter occasions in GATT/WTO history when a

country asserted Article XXI(b)(iii) to either (a) restrict imports to
defend its own capacity for “goods and materials as is carried on
directly or indirectly for the purpose of supplying a military
establishment” or (b) its exports of products and materials to avoid
strengthening a potential adversary.178 GATT/WTO Members have
actually made this sort of claim on several occasions.
Working backwards chronologically, one frequently discussed
example of Article XXI(b)(ii) restrictions to protect a domestic
industrial base is Sweden’s 1975 import quotas on shoes and boots,
specifically footwear with “outer soles of rubber or plastic material
and with uppers of plastic material, other than slippers.”179 Although
the quotas were imposed in the context of the steep decline in the
176 See id.

177 See id.
178 GATT, supra note 1, art. XXI.
179
See Council of Representatives, Report on Work Since the Thirtieth Session, at
17–18, GATT Doc. L/4254 (Nov. 25, 1975) [hereinafter Report on Work];
Notification by the Swedish Delegation, Sweden—Import Restrictions on Certain
Footwear, at 2, GATT Doc. L/4250 (Nov. 17, 1975) [hereinafter Sweden—Import
Restrictions].

Swedish footwear industry in the 1960s and 1970s because of trade

liberalization, Sweden believed that its actions were taken in
conformity with “the spirit of Article XXI.”180 Sweden explained the
import quota on grounds very similar to the U.S. Department of
Commerce’s rationale for restrictions on steel and aluminum
imports. Sweden stated that the:
decrease in domestic production has become a critical threat to the
emergency planning of Sweden’s economic defense as an integral part of
the country’s security policy. This policy necessitates the maintenance of a
minimum domestic production capacity in vital industries. Such a capacity
is indispensable in order to secure the provision of essential products
necessary to meet basic needs in case of war or other emergency in
international relations.181
While some skepticism was expressed about Sweden’s position

and Sweden offered to engage in consultations, no GATT
consultations were ever initiated, and two years later Sweden
announced the termination of the quotas.
From 1970 to 1990 Austria similarly defended restrictions it
had in place on penicillin and tyrothricin imports as needed “in order
to have available a local source of supply in case of emergency” and
considered these restrictions “as consistent with Article
XXI(b)(ii).”182 While some GATT Members pointed out that other
countries did not consider similar antibiotic import restrictions
necessary for security interests, no one challenged Austria self-
judging what its essential security interests were.183 Clearly this
would be a precedent for the United States to argue for import
restrictions on raw ingredients for a range of pharmaceuticals,
especially import restrictions against potentially adversarial countries
and favoring dependable allied suppliers.
In the 1970s, the United States also justified an overall global
quota on petroleum imports on national security grounds saying the
180 See Russia – Traffic in Transit, supra note 31, para. 1.20 (“Sweden considered
that the reasons underlying this development were the relatively high production
costs in Sweden, combined with the traditional liberal trade policy pursued by the
Swedish Government, which thereby encouraged and made possible a very
substantial increase in the volume of imports.”).
181 See Sweden—Import Restrictions, supra note 179, at 3.
182 See Committee on Trade in Industrial Products, Joint Working Group on Import
Restrictions, Notes on Individual Import Restrictions, at 95, GATT Doc.

COM.IND/W/28/Add.1 (Aug. 26, 1970) [hereinafter Notes on Individual Import
Restrictions].
183 See Group of Three, Preliminary Report of the Group of Three, at 23, GATT
Doc. W(71)2 (Apr. 23, 1971).

quota was “in accordance with Article XXI.”184 The United States
limited raw petroleum imports to 12% of domestic production; its
position was that maintenance of robust domestic oil production was
necessary given the “high degree of industrialization of the United
States as well as its remoteness from some major oil supplying
countries.”185 While the European Economic Community questioned
this interpretation of Article XXI in GATT discussions, the quota
was never challenged in a GATT proceeding. Clearly, this was a
claim structurally similar to what the United States might argue in
relation to potential import restrictions on steel, aluminum, rare earth
metals, semiconductors, and a variety of composite materials.
Reaching further back into Article XXI’s quiet history, in
August 1947 Australia proposed an amendment to Article 37(g) of
the ITO Charter—what became GATT Article XX(g)—to permit
export restrictions on raw materials “considered by the Member to be
necessary to its long term plans for defense or security.”186 The
American delegate was concerned that this was too broad and
suggested that the language of XXI(b)(ii) “render[ed] the Australian
proposal unnecessary.”187 The U.S. delegate also proposed adding
“directly or indirectly” in front of XXI(b)(ii)’s “for the purposes of
supplying a military establishment,” which was done.188 That
interchange could be considered as evidence of the breadth of Article
XXI: the addition of “directly or indirectly” suggests a broadening of
XXI(b)(ii)’s scope to cover the concerns of the Australian delegation
in 1947 and that Article XXI(b)(ii) now covers any trade restriction
where, as the American delegate said, the Member believes the trade
would “supply a military establishment, immediately or
ultimately.”189
184 See Notes on Individual Import Restriction, supra note 182, at 49.
185 See id.
186
See ESC, Amendment Proposed by the Australian Delegation, Second Session of
the Preparatory Committee of the United Nations Conference on Trade and
Employment, U.N. Doc. E/PC/T/W/264 (Aug. 6, 1947).
187 See ESC, Verbatim Report, Second Session of the Preparatory Committee of the
United Nations Conference on Trade and Employment, at 17, U.N. Doc.

E/PC/T/A/PV/36, WTO Archives (Aug. 12, 1947).
188 See id. at 19.
189 See THE WTO ANALYTICAL INDEX: GUIDE TO WTO LAW AND PRACTICE, GATT
ANALYTICAL INDEX (PRE-1995), ARTICLE XXI SECURITY EXCEPTIONS 600 (“During

discussions in the Geneva session of the Preparatory Committee, in connection with
a proposal to modify Article 37(g) [XX(g)] to permit export restrictions on raw
materials for long-term defense purposes, the question was put whether the phrase
‘for the purpose of supplying a military establishment’ would permit restrictions on
the export of iron ore when it was believed that the ore would be used by ordinary

There may also be an overlooked tea leaf to be read in the

Dutch–American exchange about the meaning of “emergency in
international relations” back in 1947. Recall that during the ITO
negotiations the Dutch delegate asked what was meant by
“emergency in international relations.” Commentators have
uniformly focused on the American delegate’s response. But the
Dutch delegate made his query in a question in which he proposed
that an “emergency” might simply be instability prompting a country
to both stockpile food imports and protect its own agricultural
production in GATT-inconsistent ways: the Dutch delegate asked if
Article XXI would cover a situation where the Netherlands “must do
everything to develop [its] agriculture, notwithstanding all the
provisions of this Charter.”190 Neither the American delegation nor
anyone else challenged this understanding of the words. When asked
if the American had provided a satisfactory answer, the Dutch
delegate said he agreed with the text and “certainly could not
improve the text myself”—which makes it sound like the Dutch
delegate believed he had confirmation of what he had presented as
possible Dutch policy (albeit “a little bit far-fetched”) in response to
an “emergency in international relations.”191
Given this history, one wonders how commentators would have
reacted to a calibrated steel and aluminum tariff scenario to
safeguard domestic steel and aluminum production and remove
Chinese supplies, both direct and indirect, from the U.S. production
system. Long before the explosive and corrosive Trump presidency,
a 2010 commentator noted that “the classic textbook example of a
smelting works and ultimately for military purposes by another country. It was
stated in response that ‘if a Member exporting commodities is satisfied that the
purpose of the transaction was to supply a military establishment, immediately or
ultimately, this language would cover it’.”).
190 After asking what “emergency in international relations” and “essential security
interests” meant, the Dutch delegate, Dr. Antonius Bernadus Speekenbrink, offered
“I might say that in a time of emergency we have no Peace Treaties signed, and I
consider that it is essential for me to bring as much food to the country as possible,
so that I must do everything to develop my agriculture, notwithstanding all the
provisions of this Charter. It might be a little bit far-fetched, but as it stands here it
really is worrying me. I cannot get the meaning of it.” Simon Lester, The Drafting
History of GATT Article XXI: The U.S. View of the Scope of the Security Exception,
INT’L L & ECON. POL’Y BLOG (Mar. 11, 2018),
https://worldtradelaw.typepad.com/ielpblog/2018/03/drafting-history-of-gatt-article-
xxi.html [https://perma.cc/3E2J-HE85].
191 See U.N. ESCOR, 2d Sess., 33d mtg. of Comm’n A at 20–21, U.N. Doc.
E/PC/T/A/PV/33 (July 24, 1947).

security exception is one that seeks to protect a domestic steel

industry.”192
These examples from GATT/WTO history also bear on the
rare earth metals, pharmaceutical import restriction, and PPE
import restriction scenarios. Obviously, Austria’s claim to protect
domestic antibiotic production under Article XXI closely parallels
GATT-inconsistent efforts to protect domestic pharmaceutical or
PPE production. The American claims in the 1970s vis-à-vis
domestic oil production are directly akin to restoration of domestic
rare earth metals production. Sweden’s 1975 claim to Article XXI
supports all four of these scenarios defending domestic production
for strategic purposes.193
D. Scenarios of Strategic Export Restrictions Under XXI(b)(iii)
The second scenario—restricting exports of products and

materials to avoid strengthening a potential adversary—is exactly
what Australia and the United States were thinking in the late 1940s,
following their experience with Imperial Japan before the United
States entered WWII in 1941. Again, go back to the ITO negotiations
when the Dutch delegate asked what was meant by “emergency in
international relations” and the American delegate’s answer was that
“we had in mind particularly the situation which existed . . . before
our own participation in the last war, which was not until the end of
1941,” and that during this time, American “exports and imports
were under rigid control.”194
So, what was the American delegate saying was included by
his example? The Export Control Act of July 2, 1940 had authorized
the President, in the interest of national defense, to prohibit or curtail
the export of basic war materials.195 Beginning in August 1940,
licenses were refused for the export to Japan of aviation gasoline and
192 See Bonnan, supra note 76, at 3.

193 See Article XXI(b)(ii) is written in very general terms. As one commentator
noted, “[n]o mention is made of the actuality or imminence of all the circumstances
justifying the measure. No explicit temporal limit is provided. No mention is made
of harm or injury. Neither is there any specific procedural condition such as the
undertaking of a national investigation by the State in question.” Bonnan, supra note
76, at 5.
194
See U.N. ESCOR, 2d Sess., 33d mtg. of Comm’n A at 19–20, U.N. Doc.
E/PC/T/A/PV/33 (July 24, 1947).
195 See U.S. DEP’T OF STATE, PEACE AND WAR: U NITED STATES FOREIGN POLICY
1931-1941 97 (1943), https://www.ibiblio.org/hyperwar/Dip/PaW/index.html

[https://perma.cc/KSL3-4WPL].

most types of machine tools.196 In September, that embargo was

extended to iron and steel scrap. In addition to these categories, by
the winter of 1940–1941, the United States had ceased exports to
Japan of aluminum, copper, iron and steel manufactures, lead, zinc,
and “a variety of other commodities [deemed] important to war
effort.”197 Beyond restrictions on exports to Japan, on October 16,
1940, the United States had imposed a total embargo on the export of
iron and steel scrap to countries outside the Western Hemisphere and
Great Britain.198 All that was justifiable in the American mind—and
the Dutch acceptance—in this exchange on what would become
GATT Article XXI(b)(iii).
This scenario—restricting exports to diminish the military
capacity of another country or countries—also occurred at least twice
in GATT history when western countries sought to restrict
technology sales to Czechoslovakia.
The GATT had been signed in October 1947 during the Geneva
negotiations for the ITO Charter; although the Americans had
initially held out hope of including the Soviet Union in the post-war
trading system, by the time of the Geneva conference it was evident
that the Soviet Union would not join the ITO.199 Czechoslovakia was
the only eastern European country among the initial twenty-three
signatories and, at the time, it had a multi-party coalition
government, albeit one dominated by Communists. 200 In February
1948, political machinations triggered a coup d’état in Prague in
which the Communist party took control of the government.201
Czechoslovakia—with its common border with the American-
occupied zone of Germany, relatively undestroyed industry, and
substantial uranium deposits—became a satellite state of the USSR.
196
See id.
197 Id. at 98.
198 Id.
199 THOMAS W. ZEILER, FREE TRADE FREE WORLD: THE ADVENT OF GATT 136
(1999) (concluding that by mid-July 1947 it was clear that the USSR would not
participate in the ITO); ROBERT A. POLLARD, ECONOMIC SECURITY AND THE ORIGINS
OF THE COLD WAR, 1945-1950 53 (1985) (noting by Geneva ITO talks it was clear
that the U.S. and the USSR were in “almost irrevocable deadlock”); Jacob Viner,
Conflicts of Principle in Drafting a Trade Charter, 25 FOREIGN AFFS. 612, 626
(1947) (recognizing, in the context of negotiating the ITO Charter, “the tension and
the mutual distrust between the United States and Soviet Russia”).
200 JOSEF KORBEL, THE C OMMUNIST SUBVERSION OF CZECHOSLOVAKIA, 1938–1948:
THE FAILURE OF CO-EXISTENCE 200 (1959).

201 Id. at 198–235.

This made Czechoslovakia the only GATT member behind the

Iron Curtain. As Soviet–American relations chilled into the Cold
War, the United States began denying export licenses to Soviet-
sphere countries;202 in the case of Czechoslovakia, this included an
embargo on mining drills and ball bearings.
At the GATT, Czechoslovakia claimed the United States was in
violation of GATT Article I and requested a decision to that effect
under Article XXIII. 203 The United States justified its embargo on
Article XXI security grounds including that the mining drills and ball
bearings both fell under XXI(b)(i) (relating to fissionable materials)
and XXI(b)(ii) (were for use in a military establishment).204 The
British delegate commented that “since the question clearly
concerned Article XXI, the U.S. action would seem to be justified
because every country must have the last resort on questions relating
to its own security.”205
At the GATT meeting, Czechoslovakia’s “proposal for a
Working Party to be set up to examine the issue had not found
support during the discussions,” with Cuba and Pakistan expressly
opposing the idea.206 After noting that the United States “had
202 Harold J. Berman & John R. Garson, United States Export Controls – Past,
Present, and Future, 67 COLUM. L. REV. 791, 796 (1967) (“As early as March 1,
1948—shortly after the Communist coup in Czechoslovakia—the Department of
Commerce had placed under licensing control most exports to the Soviet Union and
the countries of Eastern Europe. And in the same month, Congress enacted an
amendment to the pending Marshall Plan bill which directed the President ‘to refuse
delivery insofar as practicable to [Marshall Plan participants] of commodities which
go into the production of any commodity for delivery to any nonparticipating
European country which commodity would be refused export licenses to those
countries by the United States in the interest of national security.’”); see also
Economic Cooperation Act of 1948, § 117(d), ch. 169, 62 Stat. 154.
203 Request of Czechoslovakia for Decision Under Article XXIII, Summary Record
of the Eighteenth Meeting of the Contracting Parties, GATT Doc.

GATT/CP.3/SR.18 (May 30, 1949).
204 Zeiler, supra note 199, at 171 (“Czechoslovakia would be denied coal mine drills
because the equipment was obviously intended to extract uranium for use in Soviet
atomic bombs. Surely, high-quality ball bearing exports that had already been sent to
Czechoslovakia were headed for aircraft factories.”).
205 Request of the Government of Czechoslovakia for a Decision Under Article
XXIII as to Whether or not the Government of the United States of America has
Failed to Carry out its Obligations Under the Agreement Through its Administration
of the Issue of export licenses, Summary Record of the Twenty-Second Meeting of
the Contracting Parties, GATT Doc. GATT/CP.3/SR/22 (June 8, 1949) [hereinafter
Request of Czechoslovakia]; Hahn, supra note 25, at 569 (“The United States and its
allies interpreted article XXI as a virtually unlimited escape clause, controlled only
by the general policy notion that the GATT system should not be undermined.”).
206 Request of Czechoslovakia, supra note 205.

defended its actions under Articles XX and XXI which embodied

exceptions to the general rule contained in Article I,” the chairman
called for a vote on whether the U.S. export restrictions violated
GATT.207 The vote was seventeen to one (Czechoslovakia) that the
United States had not violated GATT.208 (Two years later, the United
States requested that the GATT suspend the GATT relationship
between the United Sates and Czechoslovakia, an extraordinary, if
generally forgotten moment in GATT history and the subject of Part
V below.)
In 1985, Czechoslovakia notified the GATT that it believed
Great Britain and Italy were carrying out GATT-inconsistent export
embargoes against it in relation to certain computer and electronic
equipment. Both NATO member countries asserted that the export
restrictions were maintained under Article XXI(b).209 Czechoslovakia
responded that XXI(a) and (c) clearly did not apply and that “the
imports of computers and related equipment . . . are not related to
traffic . . . in good carried on for the purposes of supplying a military
establishment.”210 But no other GATT member seems to have
objected to these export restrictions on what were clearly dual use
technologies.
These Czech episodes are relevant for several reasons. At the
most general level, there is a parallelism to the China–U.S. trade
relationship: the United States found itself in a treaty-bound trade
relationship with a country that had an increasingly adversarial
position, both ideologically and strategically. That increasingly
adversarial position had not been anticipated when the binding trade
relationship was initiated. The United States justified its export
embargos with a wide understanding of what was “relat[ed] to
207
Id.
208 Id.
209 Comments by Italy, IV.B.17.1, Inventory of Non-Tariff Measures, GATT Doc.
NTM/INV/I-V/Add.10 (May 2, 1985); Comments by United Kingdom, IV.B.18,

Inventory of Non-Tariff Measures, GATT Doc. NTM/INV/I-V/Add.10 (May 2,
1985). Czechoslovakia characterized the measure maintained by Italy as an
“embargo” on exports of electronic systems to Czechoslovakia, and the measure
maintained by the United Kingdom as an embargo on exports of computers and
related equipment. Italy responded that there was no embargo, but an inter-
ministerial Committee which examined each export license application.
210 Comments by Italy, IV.B.17.1, Inventory of Non-Tariff Measures, GATT Doc.
NTM/INV/I-V/Add.10 (May 2, 1985); Comments by United Kingdom, IV.B.18,

Inventory of Non-Tariff Measures, GATT Doc. NTM/INV/I-V/Add.10 (May 2,
1985).

fissionable materials or the materials from which they are derived”

(drill bits that could be used to mine uranium).
The United States, Great Britain, and Italy also justified their
export restrictions with a wide understanding of what was “materials
. . . for the purpose of supplying a military establishment”—without
any attempt to distinguish final uses of dual use technology. If this
applies to export restrictions, there is no reason it cannot apply to
import restrictions to support industries whose activities include
supplying the military establishment, i.e., the steel and aluminum
tariff, rare earth metals, pharmaceutical import restriction, and PPE
import restriction scenarios.
E. Total Relationship Disputes
Finally, there are a few historic brushes with Article XXI that
might be called “total relationship” disputes. Conceptualized this
way, these Article XXI disputes have some structural similarity to
what many in the United States feel is the basic incompatibility of
American society based on representative democracy, civil rights,
and a market economy with China’s continuing mercantilism and
increasing authoritarianism.
For example, in a long simmering issue, in 2002, India asserted
that Pakistan had systematically denied India MFN status in violation
of the GATT and other WTO agreements.211 Pakistan responded that
its economic relations with India had to be seen in the context of the
“difficult political relations between the two countries over the
course of the past 50 years” 212—a diplomatic understatement given
that there have been at least three short wars between Pakistan and
India since the founding of the GATT. Pakistan’s view was that
since the 1965 Indo–Pakistani war, normalization of trade relations
had occurred issue-by-issue and that both countries’ behavior in this
respect was permissible under Article XXI(b)(iii).213
In contrast to the enduring difficulties between Pakistan and
India, in 1999, Nicaragua decided to decouple itself partially from
Honduras and Colombia after the latter two countries entered a
211 Trade Policy Review Body, Trade Policy Review, Pakistan, WTO Doc.
WT/TPR/M/95 (Mar. 8, 2002).
212
Trade Policy Review Body, Trade Policy Review, Pakistan, WTO Doc.
WT/TPR/M/95/Add.1 (Apr. 11, 2002).
213 That seems the most reasonable understanding of Pakistan’s statement that “in
practice, both India and Pakistan have acted consistent with WTO Rules relating to
national security in treating each other as exceptions to the MFN principles.” Id.

bilateral Treaty on Maritime Delimitation in the Caribbean Sea (the

Ramírez-López Treaty) that Nicaragua considered “expansionist”
and “to the detriment of Nicaragua’s territorial rights.”214 In response
to the treaty, Nicaragua imposed a tax on all goods and services
manufactured in, originating in, or imported from Honduras and
Colombia; Nicaragua also cancelled licenses for all fishing vessels
under Honduran and Colombian flags.215 Nicaragua considered its
actions permissible under “Article XXI of GATT 1994 and Article
XIV bis of GATS, which reflected a State’s inherent right to protect
its security, and therefore constituted a general exception to
multilateral trade rules.”216 Six years later, Nicaragua was still
contending that the restrictions against Colombia were applied in
conformity with Article XXI.217
A third situation happened decades earlier, during Portugal’s
accession to the GATT in the early 1960s. During that period, Ghana
had argued that Portugal’s refusal to decolonize Angola was a threat
to Ghanaian essential security interests; Ghana expressly took the
view that a “country’s security interests may be threatened by a
potential as well as an actual danger.”218 No one challenged Ghana’s
self-judgment on that question and this surely counted as an overall,
ideological struggle argument, i.e. that Portugal’s polity, including
the normality of continued subjugation of peoples in Africa, was
wholly incompatible with Ghana’s vision of self-determination for
214 Minutes of Meeting, Nicaragua — Measures Affecting Imports from Honduras

and Colombia, WTO Doc. WT/DSB/M/78 (May 12, 2000).
215 Request for the Establishment of a Panel by Colombia, Nicaragua — Measures
Affecting Imports from Honduras and Colombia, WTO Doc. WT/DS188/2 (May 5,
2000); Minutes of Meeting, Nicaragua — Measures Affecting Imports from
Honduras and Colombia, WTO Doc. WT/DSB/M/78 (adopted May 12, 2000).
216 Minutes of Meeting, Nicaragua — Measures Affecting Imports from Honduras
and Colombia, WTO Doc. WT/DSB/M/78 (adopted May 12, 2000) (showing
Nicaragua argued that its actions were fully justified under GATT Article
XXI(b)(iii) and GATS Article XIVbis:1(b)(iii)).
217 Minutes of Meeting, Nicaragua — Trade Policy Review, WTO Doc.
WT/TPR/M/167 (Sept. 6, 2006).

218 Accession, Summary Record of the Twelfth Session, GATT Doc. SR.19/12 (Dec.
12, 1961) (“[U]nder this Article each contracting party was the sole judge of what
was necessary in its essential security interests. There could therefore be no
objection to Ghana regarding the boycott of goods as justified by its security
interests . . . . [A] country’s security interests may be threatened by a potential as
well as an actual danger . . . . [T]he situation in Angola was a constant threat to the
peace of the African continent and . . . any action which, by bringing pressure to
bear on the Portuguese Government, might lead to a lessening of this danger, was
therefore justified in the essential security interests of Ghana.”).

itself and other African societies. Perhaps the more interesting issue
is what counted as an “emergency in international relations” since, as
Roger Alford has observed, Portugal’s only “political ambitions were
simply to maintain the status quo.”219
Finally, the United States has also claimed essential security
interests in what is best understood as a “total relationship dispute”
vis-à-vis its restrictions on trade with Cuba from the 1960s through
the 2010s. In 1962, the United States imposed an embargo
prohibiting imports into the United States of all products of Cuban
origin as well as all goods imported via Cuba; the United States also
maintained a continuing prohibition on all exports from the United
States to Cuba.220 At the GATT, the United States explained that the
embargo had been imposed for reasons of “individual and collective
self-defense” and to “promote national and hemispheric security,”
and invoked Article XXI as the basis for its actions.221
In 1986, Cuba circulated a communication at GATT
complaining about the United States eliminating sugar import quotas
for any country that could not guarantee it would not import sugar
from Cuba for reexport to the United States.222 At the May 1986
meeting of the GATT Council, Cuba argued that this measure
violated the GATT. The United States responded that the measure
was a continuation of its long-standing trade embargo of Cuba and
that the embargo was grounded in national security concerns.223
While there are elements of these U.S.–Nicaragua and U.S.–
Cuba histories applicable to China–U.S. trade, the disparate of
economic and political power between the U.S. and its smaller
neighbors may limit the comparative value. As Cuba noted in 1988,
“[i]f two small countries could pose a threat to an enormous military
219 Alford, supra note 74, at 732; see also Hahn, supra note 25, at 571 (stating the
Ghanaian position was that “the policy followed by the Government of Portugal
concerning its African territories had led to an emergency in international relations
under article XXI(b)(iii)”).
220 Statement by the Delegation of Cuba, Trade Policy Review Mechanism, GATT
Doc. Spec (90)4 (Feb. 5, 1990).

221 Proclamation No. 3447, 27 Fed. Reg. 1085 (Feb. 3, 1962).
222
Minutes of Meeting, United States — Measures affecting Cuban sugar exports,
GATT Doc. C/M/198 (Jun. 12, 1986). Cuba specifically argued that the US
measures violated Part IV and GATT Articles dealing with quantitative restrictions,
nondiscrimination and most-favored-nation treatment.
223 Id.

and economic power such as the United States, many countries might
find themselves subject to similar measures by that country.”224
V. CHINA’S RIGHT TO A NON-VIOLATION IMPAIRMENT CLAIM AND

A ‘WAIVER’ FOR CHINA–U.S. TRADE
Let us assume that the United States made a successful Article

XXI argument over some range of measures it took substantially
diminishing trade between the United States and China. If that
happened, China could have recourse to a “non-violation” claim for
“nullification or impairment” of trade benefits under GATT Article
XXIII,225 i.e., while the U.S. action did not violate any WTO rules,
the benefits China expected in joining the WTO would have become
impaired. [This is quite different than the idea of the United States
bringing a comprehensive, sweeping Article XXIII “non-violation”
claim against Chinese mercantilism—a viable idea,226 but beyond the
scope of this Article].
These two actions—U.S. use of Article XXI and China’s
recourse to Article XXIII—could give an institutional, rule-based
basis for partial disengagement of China–U.S. trade. Although it may
be politically unlikely that China would pursue this approach, it is
worthwhile to explore its possibility as a matter of GATT/WTO
jurisprudence.
A. China’s Responsive Article XXIII Claim
One curious feature about the GATT/WTO system is the notion

of a “non-violation” claim under GATT Article XXIII. Article XXIII
224 Summary Record of the Fourth Meeting, Recourse to Articles XXII and XXIII,
GATT Doc. SR.43/4 (Jan 12, 1988); GATT Council, United States — Trade Policy
Review Mechanism, GATT Doc. C/RM/G/3 (Nov. 16, 1989); Minutes of Meeting,
Questions from the United States to Viet Nam, GATT Doc. G/LIC/M/41 (Jul. 9,
2015).
225 Most GATT disputes are brought under GATT Article XXIII(1)(a) on the basis
of “the failure of another contracting party to carry out its obligations under this
Agreement,” but Article XXIII(1)(b) provides that a claim “that any benefit accruing
to it directly or indirectly under this Agreement is being nullified or impaired” can
be brought on the basis of “the application by another contracting party of any
measure, whether or not it conflicts with the provisions of this Agreement.” See
GATT art. XXIII. This is a “non-violation” claim.
226 And perhaps what experienced international trade people mean when they have
discussed the idea of “threaten[ing] China with expulsion from the WTO.” Greg Ip,
For U.S. to Stay in WTO, China May Have to Leave, WALL ST. J. (2022).

provides that claims can be brought in the GATT/WTO systems

under the following conditions:
1. If any contracting party should consider that any benefit accruing to it
directly or indirectly under this Agreement is being nullified or impaired
or that the attainment of any objective of the Agreement is being impeded
as the result of
(a) the failure of another contracting party to carry out its obligations
under this Agreement, or
(b) the application by another contracting party of any measure, whether
or not it conflicts with the provisions of this Agreement, or
(c) the existence of any other situation. 227
It is easy to understand 1(a): that is a claim that another WTO

member has violated one of the WTO agreements. But 1(b) says that
Country A can bring a case against Country B when Country A’s
benefits under the WTO system are “nullified” or “impaired” by
something Country B has done, even when Country B is not
violating any WTO treaty commitments.228
No one doubts “that the non-violation nullification or
impairment remedy should be approached with caution and treated as
an exceptional concept,”229 that it is an “exceptional instrument of
dispute settlement,”230 and that it “should be applied with utmost
circumspection.”231 Nonetheless, GATT and WTO panels have
characterized the “non-violation” mechanism as a way to
compensate for unanticipated programs or policies such as subsidies
or unusual internal market arrangements.232 The Panel in the 1998
227 GATT, supra note 1, art. XXIII(1).

228 Robert W. Staiger & Alan O. Sykes, International Trade, National Treatment,
and Domestic Regulation, 40 J. LEGAL STUD. 149, 191 (2011) (“This provision was
understood to reflect the possibility that GATT commitments might be undermined
by measures that did not violate the letter of GATT but that nevertheless impaired
market access.”).
229 Panel Report, Japan–Measures Affecting Consumer Photographic Film and
Paper, para. 10.36, WTO Doc. WT/DS44/R (adopted Mar. 31, 1998) [hereinafter
Japan – Photographic Film].
230 Id.
231 Appellate Body Report, European Communities–Measures Affecting Asbestos
and Asbestos-Containing Products, para. 36, WTO Doc. WT/DS135/AB/R,

(adopted Mar 12, 2001) [hereinafter European Communities – Asbestos].
232
Cf. Panel Report, The Australian Subsidy on Ammonium Sulphate, GATT Doc.
GATT/CP.4/39 (Apr. 3, 1950) (providing that Australia discontinue subsidizing the
sale of one fertilizer (sodium nitrate) on which Australia had granted Chile a duty-
free binding in 1947, whilst continuing to subsidize another fertilizer (ammonium
sulfate) that Chile did not export into the Australian market; the GATT panel

Japan – Photographic Film dispute elaborated that the purpose of

Article XXIII:1(b) is to “protect the balance of concessions under
GATT by providing a means to redress government actions not
otherwise regulated by GATT rules that nonetheless nullify or impair
a Member’s legitimate expectations of benefits from tariff
negotiations.”233 In EC – Asbestos, the Appellate Body rejected the
European Communities’ argument that a WTO Member can have
“legitimate expectations” under Article XXIII only in connection
with purely “commercial measures”; the Appellate Body pointed out
that Article XXIII:1(b) provides that “the application by another
Member of any measure” may give rise to a claim under the non-
violation provision.234
The ITO Charter and GATT negotiations make it clear that
Article XXIII non-violation claims were intended as a compensatory
mechanism for Article XXI defections from trade rules based on
national security. Both the American delegation that drafted Article
XXI and the GATT parties that discussed and accepted the Article
XXI language intended Article XXIII “non-violation” disputes to be
a proper response to the withdrawal of trade benefits on the basis of
the national security exception. In other words, the two-step Article
XXI, Article XXIII mechanism would ‘rebalance’ a trade
relationship in which national security consideration impinged on
normal freer trade objectives—a good way to describe where the
United States now finds itself with China.
The internal U.S. Government discussions that produced the
draft exceptions provisions that eventually became GATT Articles
XX and XXI were characterized by a conflict between those who
wanted to promote international security through multilateralism and
those who “wanted to preserve open-ended powers for the United
States,” but there was never any disagreement that, however the
national security exceptions operated, the “nullification and
impairment” procedure would be available to the target of any trade
concluded that Australia’s action nullified or impaired benefits accruing to Chile as

a result of the tariff concessions granted by Australia on sodium nitrate); Panel
Report, EEC – Payments and Subsidies Paid to Processors and Producers of
Oilseeds, GATT Doc. L/6627 - 37S/86 (Jan. 25, 1990) [hereinafter EEC – Oilseeds]
(showing the GATT panel found that the European Communities’ use of an unusual
production subsidy which shielded Community producers of oilseeds completely
from the movement of prices of imports nullified and impaired the trade benefits the
United States had reasonably expected from the reduction in tariffs on oilseeds).
233 Japan – Photographic Film, supra note 229, para. 1050 (quoting EEC –
Oilseeds, supra note 232, para. 144).

234 European Communities – Asbestos, supra note 231, paras. 188–89.

restriction and, thereby, serve as “a check on abuse of the

exception.”235
When the United States proposed making the national security
exception of the ITO Charter a free-standing provision at the end of
the Charter (initially as Article 94), this raised, for some delegates,
the question whether a country’s assertion of essential security
interests could be subject to the nullification and impairment
provisions of then Article 35 of the draft Charter. The American
delegate was very clear that it would be so subject:
I think that the place of an Article in the Charter has nothing to do with
whether or not it comes under Article 35. Article 35 is very broad in its
terms, and I think probably covers any action by any Member under any
provision of the Charter. It is true that an action taken by a Member under
Article 94 could not be challenged in the sense that it could not be claimed
that the Member was violating the Charter; but if that action, even though
not in conflict with the terms of Article 94, should affect another Member,
I should think that Member should have the right to seek redress of some
kind under Article 35 as it now stands. In other words, there is no
exception from the application of Article 35 to this or any other Article.236
In response, the Australian delegate expressed his approval that

an ITO Member should still have the opportunity to pursue a
nullification or impairment procedure in the wake of a claim to the
national security exception. 237
In 1948, delegates gathered in Havana to complete the ITO
Charter. A subcommittee studying the question whether the
nullification or impairment procedure (then Article 89) applied to
invocation of the security exception offered the following
conclusion:
The working party considered that this sub-paragraph [XXIII(1)(b)] would
apply to the situation of action taken by a Member . . . pursuant to [GATT
Article XXI]. Such action, for example, in the interest of national security
in time of war or other international emergency would be entirely
consistent with the Charter, but might nevertheless result in the
nullification or impairment of benefits accruing to other Members. Such
other Members could, under those circumstances, have the right to bring
the matter before the Organization, not on the ground that the measure
taken was inconsistent with the Charter, but on the ground that the
235 Pinchis-Paulsen, supra note 68, at 42.

236 U.N. ESCOR, 2d Sess., 33d mtg. of Comm’n A at 19, 26–27, U.N. Doc.
E/PC/T/A/PV/33 (Jul. 24, 1947).
237 Id. at 27.

measure so taken effectively nullified benefits accruing to the complaining

Member.238
Professor Pinchus-Paulsen’s research confirms that this is how

all parties intended GATT to work.239
Consistent with this, countries have understood that this Article
XXIII “non-violation nullification” claim is a proper response to
adverse trade actions justified on the national security exception of
Article XXI. During the Falkland Islands crisis, Argentina made this
claim when faced with import bans from countries in the EEC and
Commonwealth.240 Nicaragua also raised this issue in the GATT
arbitration over U.S. sanctions against the Sandinista government.241
At the same time, there are elements of Article XXIII(b)
jurisprudence that would disfavor an Article XXIII(b) counterclaim
by China in the face of an Article XXI national security claim by the
United States. The party claiming a non-violation nullification “bear
the primary burden of presenting a detailed justification for its
claims”242 and must prove that the trade restriction it is challenging
was unforeseeable: there would be no non-violation nullification or
impairment if the trade restriction(s) at issue “could reasonably have
been anticipated at the time” China negotiated its WTO accession.243
238 U.N. Conference on Trade and Development, Report of Working Party of Sub-
Committee G of Committee VI on Chapter VIII, at 2, U.N. Doc. E/Conf .2/C.6/W.30
(Jan. 9, 1948).
239 See, e.g., Pinchis-Paulsen, supra note 68, at 12 (stating that the delegates
considered whether the “Charter [was] nullified or impaired by another Member’s

security measures, regardless of whether the measure actually breached the
Charter’s rules. By the time the delegates met in Havana months later to finalize the
Charter and shortly after the signing of the GATT, they appeared in agreement that
the procedure applied to excepted security actions.”).
240 See, e.g., GATT Council Meeting May 1982, supra note 166, at 14; GATT
Council, Minutes of Meeting, GATT Doc. C/M/159 (Aug. 10, 1982); GATT
Council, Minutes of Meeting, GATT Doc. C/M/165 (Feb. 14, 2983).
241 Panel Report, United States – Trade Measures Affecting Nicaragua, GATT Doc.
L/6053 (Oct. 13, 1986).

242 Panel Report, European Communities – Asbestos, supra note 231, para. 8.278
(“[W]ith respect to its claims of non-violation, Canada bears the primary burden of
presenting a detailed justification for its claims.”); Panel Report, Japan –
Photographic Film, supra note 229, para. 10.32 (“[W]e thus consider that the United
States, with respect to its claim of non-violation nullification or impairment under
Article XXIII:1(b), bears the burden of providing a detailed justification for its claim
in order to establish a presumption that what is claimed is true. It will be for Japan to
rebut any such presumption.”).
243 Japan – Photographic Film, supra note 229, paras. 10.79–10.80; Id. para. 10.61
(“[F]or expectations to be legitimate, they must take into account all measures of the
party making the concession that could have been reasonably anticipated at the time

In EC – Asbestos, Canada argued that if France’s ban on asbestos

products was justified under the Article XX’s exception to protect
human health, Canada was entitled to raise an Article XXIII(b) non-
violation claim because the asbestos ban had not been anticipated at
the time GATT tariff concessions were negotiated. The panel
responded as follows:
we consider that the special situation of measures justified under Article
XX, insofar as they concern non-commercial interests whose importance
has been recognized a priori by Members, requires special treatment. By
creating the right to invoke exceptions in certain circumstances, Members
have recognized a priori the possibility that the benefits they derive from
certain concessions may eventually be nullified or impaired at some future
time for reasons recognized as being of overriding importance. This
situation is different from that in which a Member takes a measure of a
commercial or economic nature such as, for example, a subsidy or a
decision organizing a sector of its economy, from which it expects a
purely economic benefit. In this latter case, the measure remains within
the field of international trade. Moreover, the nature and importance of
certain measures falling under Article XX can also justify their being
taken at any time, which militates in favour of a stricter treatment of
actions brought against them on the basis of Article XXIII:1(b).244
In other words, the panel concluded that the very existence of

GATT Article XX means that WTO Members know “certain
concessions may eventually be nullified or impaired at some future
time for reasons recognized as being of overriding importance” and
that such general knowledge means the non-violation claimant may
have a greater burden of proof when it comes to the “existence of
legitimate expectations and whether or not the [trade-restricting
action] could be reasonably anticipated.”245
This “not reasonably anticipated” requirement also weighed
heavily in the Japan – Photographic Film dispute where the Panel
reasoned that:
[T]he United States may only claim impairment of benefits related to
improved market access conditions flowing from relevant tariff
concessions by Japan to the extent that the United States could not have
of the concession.”); European Communities – Asbestos, supra note 231, paras.

8.283, 8.289.
244
European Communities – Asbestos, supra note 231, para. 8.281.
245 Id. para 8.282. The panel added “Here, it is a question of measures to protect
public health under Article XX(b), that is to say, measures whose adoption is
expressly envisaged by the GATT1994.” Id. at para. 8.291. The same logic would
apply in relation to Article XXI.

reasonably anticipated that such benefits would be offset by the

subsequent application of a measure by the Government of Japan.”246
This standard may create a hurdle for China making a non-

violation claim in response to U.S. assertion of Article XXI. Over the
course of seventy years, trade-restrictive measures have been
justified, formally or informally, on the basis of Article XXIII
“essential national security” by Australia, Austria, Brazil, Canada,
the entire European Community, Ghana, Japan, Nicaragua, New
Zealand, Russia, Sweden, Switzerland, and the United States. These
claims have ranged from limiting oil imports to restricting machinery
exports; almost all these claims occurred before China acceded to the
WTO. To return to the hypotheticals above, how could a WTO
Member not reasonably anticipate at least some further trade
restrictions along these lines based on national security? Should
China in 2000 have anticipated that if China overbuilt steel
production capacity far in excess of world consumption and pushed
other countries steel mills toward closure, other countries with
substantial militaries would exercise Article XXI national security
exceptions?247 Reasonable minds might say yes.
Still, if China prevailed in such a “non-violation” dispute, what
would be the result? The United States would not be under any
obligation to withdraw its Article XXI-grounded tariffs, but China
would be entitled to a “mutually satisfactory adjustment” based on
“the level of benefits which have been nullified or impaired.”248 In
other words, it is not inconceivable that through the interplay of
Articles XXI and XXIII, the United States and China could shed
some of their WTO obligations to one another without altering their
WTO relations with the rest of the world.
246 Japan – Photographic Film, supra note 229, para. 10.77 (emphasis added).
247 Alford, supra note 74, at 749. As Roger Alford notes in his analysis of the
interaction between GATT Articles XXI and XXIII(1)(b), “[i]n some cases, such as
the Arab League boycott of Israel or the United States boycott of Cuba, it will be
difficult for a Member State to argue that it had any reasonable expectations of
WTO benefits.” Id.
248 Dispute Settlement Understanding, art. 26(1)(b) (“[W]here a measure has been
found to nullify or impair benefits under, or impede the attainment of objectives, of

the relevant covered agreement without violation thereof, there is no obligation to
withdraw the measure.”); see also id. art. 26(1)(c), (d).

B. A Comprehensive Waiver for China–U.S. Trade?
Part IV above reviewed the export restrictions that the United

States, Great Britain, and Italy imposed on Czechoslovakia during
the GATT era, but there is an additional chapter to that story that
merits recounting. Faced with strong pressures from Congress to
curtail trade with Soviet bloc countries, in September 1951 the
United States went before the GATT and requested “a Declaration
on the suspension of obligations between the United States and
Czechoslovakia.”249 The United States made this proposal on the
basis of GATT Article XXV, which permits waivers to be granted
for “an obligation imposed upon a contracting party by the
Agreement,” but such a decision has to be “approved by a two-thirds
majority of the votes cast” where “such majority shall comprise more
than half of the contracting parties.”250 The U.S. proposal applied
exclusively to the relationship between the two countries “and would
not affect the obligations between either government and other
contracting parties in any respect.”251 The United States’ explanation
for the requested Declaration in 1951 resonates with our current
problems with Chinese mercantilism. After discussing the possibility
of the United States bringing an Article XXIII non-violation claim
against Czechoslovakia because its economic system “was being
manipulated in such a way as to nullify the economic benefits which
the United States had expected” from the GATT, the American
delegate offered that:
[The U.S.] Government, however, felt that there could be no real remedy
under the provisions of that Article at the present time because there was
no reasonable anticipation of an improvement in United States commerce
with Czechoslovakia so long as the present state of relations between the
two countries existed.252
The American delegate went on to recount the alterations in the

Czech economic system; “the general attitude of its government
toward the United States”; and the “steadily deteriorated” relations
between the two governments; this was the basis for the United
States asking that the bilateral GATT obligations be “formally
249 See Summary Record of the Twelfth Meeting, Termination of Obligations

between the United States and Czechoslovakia under the General Agreement, GATT
Doc. GATT/CP.6/SR.12 (Sept. 28, 1951) [hereafter Summary Record of the Twelfth
GATT Meeting].
250 See GATT, supra note 1, art. XXV.
251 See Summary Record of the Twelfth GATT Meeting, supra note 229.
252 See id.

dissolved.”253 That all sounds familiar to those following China–U.S.

interaction from 2016 onwards.
In response to the U.S. request, several GATT members raised
procedural issues; the Swedish delegate queried whether Article
XXIII non-violation should not be used instead; the Greek delegate
confirmed the U.S. view that the Czech government had shut down
trade relations with western countries; and the Indian delegate
wisely—and perhaps thinking of Indian–Pakistani relations—noted
that “if any two contracting parties had arrived at a state where trade
between them was impossible then the Agreement itself could hardly
be expected to function between them.”254 He felt that a waiver was
the appropriate mechanism when “the relations of two contracting
parties were such that neither was able to deal with the other.”255
On September 27, 1951, the GATT Members adopted a
declaration stating that the United States and Czechoslovakia “shall
be free to suspend, each with respect to the other, the obligations of
the General Agreement on Tariff and Trade” while affirming the
obligations of each to all other GATT members.”256 The vote was
twenty-four countries in favor, one (Czechoslovakia) against, and
four abstentions.257 The 1951 declaration was just one of many
Article XXV waivers that were granted under the GATT; as of the
time the GATT was integrated into the new World Trade
Organization, there were approximately forty Article XXV waivers
still in force.258
In the WTO system, it is not clear if the GATT Article XXV
mechanism continues or is modified or supplanted by an overarching
waiver mechanism in Article IX(3) of the Marrakesh Agreement
establishing the WTO. Article IX(3) provides that “[i]n exceptional
circumstances, the Ministerial Conference may decide to waive an
obligation imposed on a Member by this Agreement or any of the
Multilateral Trade Agreements, provided that any such decision shall
be taken by three fourths of the Members unless otherwise provided
253 See id.

254 See id.
255 See id.
256 Press Release, Survey of the Sixth Session of the Contracting Parties to the
General Agreement on Tariffs and Trade, GATT Doc. GATT/66 (Oct. 29, 1951).
257 Id.
258 See Final Act Embodying the Results of the Uruguay Round of Multilateral
Trade Negotiations, Document MTN/FA, at 11–12 n.7, Dec. 15, 1993, 1867
U.N.T.S. 14 (1994).

for in this paragraph.”259 In the case of a waiver from the GATT, the
request for such a waiver would first go to the GATT Council with a
report from the council to the Ministerial Conference to follow.
WTO waivers are granted on an annual, renewable basis, but there is
nothing in WTO Agreement Article IX that indicates it could not be
used in the same way as GATT Article XXV was in the past.
Just as Czechoslovakia opposed the 1951 suspension, it seems
almost certain that China would oppose any parallel effort now—
and, unlike Czechoslovakia—China would certainly be able to
persuade many WTO Members to support it. But that does not mean
that the United States initiating a “waiver” process would be
pointless; it could serve as another front to emphasize the need to
reopen negotiations on the basic bargain(s) of WTO membership.
CONCLUSION
After $5.5 trillion in accumulated trade debt, the United States

has finally accepted that trade with China’s mercantilist economy
cannot continue as it did from 2000 through 2017; this is part of the
new, overall consensus in Washington that in the near future China
and the United States will be in what President Biden called
“extreme competition.” It is almost axiomatic to that consensus that
China–U.S. trade relations can no longer be fitted within the standard
operation of the WTO system.
Is there any way that sui generis China–U.S. terms of trade can
be made to fit into the multilateral rules of the WTO system? One
answer would be for the WTO membership to grant China and the
United States a “waiver” from their trade obligations to one another.
As of 2021, there would be no reason for China to accept that
outcome and little reason to think the United States could convince
the WTO membership to support a waiver in the face of China’s
opposition. Another approach under the WTO rules would be
justifying a wide range of U.S. trade restrictions on either the
national security exceptions of GATT Article XXI or the “non-
violation” mechanism of GATT Article XXIII. A comprehensive
Article XXIII “non-violation” claim is beyond the scope of this
Article; wise or unwise, it would be a massive undertaking for the
United States’ trade dispute resources.
As an interim measure, the United States should think of trade
restrictions vis-à-vis China in terms of national security and be
259 Marrakesh Agreement, supra note 18, art. IX(3).

prepared to defend such restrictions on grounds of the GATT

“security exceptions” provision, Article XXI. Even after the first
WTO panel decision interpreting GATT Article XXI in 2019, the
national security exceptions under GATT and the other WTO
Agreements remain largely unexplored territory. Contrary to what
many commentators and pundits have said, there are ample examples
in GATT/WTO history that provide some parallels to the U.S.
claiming national security grounds for careful, calibrated restrictions
on imports of steel, aluminum, composite materials, rare earth
metals, pharmaceutical ingredients, semiconductor chips, and PPE.
There are also ample examples in GATT/WTO history of “overall
relationship” disputes that have prevented countries from having
trade relationships consistent with GATT/WTO disciplines.
All of these historical examples should be brought to bear on
the China–U.S. trade relationship. If the United States were to
prevail in a national security exception claim, China itself could have
recourse to ‘re-balance’ its own tariff concessions to the United
States under GATT Article XXIII(b). In short, this could be a means
of engaging WTO mechanisms to normalize some trade
disengagement between the two economies.

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Legal Studies Paper No.

FITTING CHINA-US TRADE INTO WTO

Professor Justin Hughes

Electronic copy available at: https://ssrn.com/abstract=3941545

2022 MICH. ST. L. REV.

 Honorable William Matthew Byrne, Jr. Professor of Law, Loyola Law

Electronic copy available at: https://ssrn.com/abstract=3941545

Electronic copy available at: https://ssrn.com/abstract=3941545

international trading system that was designed to be insensitive to

technologies, critical resources, reserve manufacturing capacity that we want here in

https://www.census.gov/foreign-trade/balance/c5700.html (last visited Apr. 11,

Electronic copy available at: https://ssrn.com/abstract=3941545

administration tariffs and the COVID-19 pandemic, and trended

DEVELOPMENTS INVOLVING THE PEOPLE’S REPUBLIC OF CHINA (2021); China

Employment Statistics Survey, U.S. BUREAU OF LAB. STATS., https://data.bls.gov/cgi-

Electronic copy available at: https://ssrn.com/abstract=3941545

be even a resemblance of political responsibility for this impact on

manufacturing in GDP by around 1.5 percentage points, or more than

FOREIGN AFFS. (June 17, 2021), https://www.foreignaffairs.com/articles/china/2021-

Electronic copy available at: https://ssrn.com/abstract=3941545

wsletter&wpisrc=nl_headlines [https://perma.cc/R59B-DZM3] (discussing mistaken

WTO, WASH. EXAM’R (Aug. 13, 2018, 9:02 AM),

22, 2019, 7:00 AM), https://www.wsj.com/articles/for-u-s-to-stay-in-wto-china-

Electronic copy available at: https://ssrn.com/abstract=3941545

Of course, it is not that simple (and most of the commentators

Agreements, including Article 73 of the TRIPS Agreement (which is an carbon copy

Electronic copy available at: https://ssrn.com/abstract=3941545

unique language that allows defections from WTO trade disciplines

22 See GATT, supra note 1, art. XXI (emphasis added).

(Jan. 20, 2019), https://www.ft.com/content/c1846c4e-ffbf-11e8-b03f-bc62050f3c4e

Security Exception, 12 MICH. J. INT’L L. 558, 589 (1991) (emphasis omitted).

Electronic copy available at: https://ssrn.com/abstract=3941545

With continued China–U.S. tensions all but certain, and with

membership” for a wide-ranging China–US trade deal).

Electronic copy available at: https://ssrn.com/abstract=3941545

this mechanism was used in 1951 to suspend the GATT obligations

I. THE POST-2016 CHINA–US TRADE RELATIONSHIP

As the Trump administration began to unveil policies in 2017,

Doc. WT/DS512/R (adopted Apr. 5, 2019) [hereinafter Russia – Traffic in Transit].

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THE NATIONAL SECUIRTY (2018), https://www.commerce.gov/sites/

Electronic copy available at: https://ssrn.com/abstract=3941545

fifteen days, but included a temporary carve-out provision for the

Congress’s Unwillingness to Check Trump, WASH. POST (July 12, 2018),

INT’L L. & ECON. POL’Y BLOG (Mar. 9, 2018), https://ielp.worldtradelaw.net/

Electronic copy available at: https://ssrn.com/abstract=3941545

exception, Trump is only encouraging other countries to do the same as a way to

Why, NPR.ORG (Oct. 4, 2021, 3:36 PM),

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safeguard measure.”43 At the same time, these countries began WTO

43 World Trade Organization, Agreement on Safeguards, art. 8(2), WTO,

Laws, Policies, Practices, or Actions Related to Technology Transfer, Intellectual

FINDINGS OF THE INVESTIGATION INTO CHINA’S ACTS, POLICIES, AND PRACTICES

Electronic copy available at: https://ssrn.com/abstract=3941545

•List 1. A 25% additional tariff was imposed on a list of tariff

Response to China’s Unfair Trade Practices, USTR (Sept. 18, 2018),

Electronic copy available at: https://ssrn.com/abstract=3941545

produced goods cause production to shift to other jurisdictions, the

Electronic copy available at: https://ssrn.com/abstract=3941545

Whether or not Beijing could have met the deal’s purchase

administration tariffs in place).

Electronic copy available at: https://ssrn.com/abstract=3941545

diplomacy would make full rapprochement difficult for the United