Embargo as a Trade Defense against an Embargo: The WTO Compatibility of the Russian Ban on Imports from the EU

Abstract

This article addresses the issue of the compatibility of the recent Russian ban on imports of certain agricultural products from the EU with WTO law. This ban was introduced as a reaction to the embargo of the EU following the Russian support to Ukrainian separatists. It will be argued that the EU can establish a prima facie case that the Russian ban is inconsistent with the provisions of four instruments: the Agreement on Agriculture, the GATT, Russia's Protocol of Accession, and the WTO Dispute Settlement Understanding. The paper then turns to the question of whether Russia can justify its measures. The main focus is on GATT Article XXI:(b)(iii), also known as the security exception. The security exception is one of the most controversial in clauses in WTO law, starting with the issue of whether it is justiciable at all. After examining the history of the clause, the institutional changes wrought by the establishment of the WTO and its dispute settlement system and the practice of the GATT Contracting Parties and WTO Members, it will be argued that it is within the scope of a panel's competence to examine a defense mounted on the basis of this provision. It will be argued that the terms of the clause can and must be interpreted and applied in such a manner as to respect a WTO Member's right to determine autonomously its security interests and protect these security interests in a manner it considers appropriate while still being subject to justiciable limitations. When the insights gained from the preceding section are applied to the Russian ban it appears unlikely that a defense based on the security clause will succeed. The final section then briefly outlines the legal options open to EU enterprises affected by the ban.