On Fissionable Cows and the Limits to the WTO Security Exceptions

Abstract

Some WTO Members are of the view that the WTO security exceptions are self-judging. However, several others offer a more balanced position: while recognizing the broad discretion enjoyed by Members, they also acknowledge the limits of these exceptions and the WTO adjudicating bodies’ power to make findings and issue recommendations on the matter. Panels and the Appellate Body have normally jurisdiction to deal with cases in which defences based on security exceptions are raised. The Article XXI test should draw inspiration from the elements of the well-established Article XX of GATT 1994 test, adapted to the particular circumstances of the ‘mother of all exceptions’. The famous ‘it considers’ does not offer a carte blanche to the Members invoking security exceptions and refers only to the necessity test, which consists of a verification of whether it is plausible to consider the measure at issue necessary for the protection of the respective essential security interests, from the perspective of the invoking Member. There are objective elements conditioning the applicability of the security exceptions. Cows, for instance, cannot be considered fissionable materials. The limits of the invocation of the security exceptions should be the good faith and the abuse of rights.