Abstract
AbstractThis paper reviews the World Trade Organization (WTO) Panel Report Russia – Measures Concerning Traffic in Transit of April 2019. It constitutes the first attempt to disentangle the legal and political aspects related to the invoked essential security interests from the economic considerations underlying the measures imposed on the transit through Russia of goods exported from Ukraine to the Republic of Kazakhstan and Kyrgyzstan. One the one hand, the panel's interpretation of Article XXI of the GATT denies Members unilateral determination over security exceptions. It further enables a pathway for future WTO panels to review possible abuses of security exceptions – a growing concern due to the rising complexity of transnational economic relations. On the other hand, our economic analysis suggests a stricter assessment of Russia's transit restrictions was necessary. In particular, it argues that the panel adopted a circular assessment when considering the plausibility of whether Russia implemented its measures for the protection of its essential security interests at a time of emergency in international relations. Ultimately, although the panel's focus on finding a diplomatic and legal path forward failed economic scrutiny a legal assessment argues that the panel's findings fit the legal design of Article XXI:b of the GATT.
Highlights
The multilateral trading system has always accounted for the reality that Members of the World Trade Organization (WTO) would take trade restrictive actions for national security reasons
In other words, was there enough assessment done to confirm that Russia had not attempted to merely circumvent its General Agreement on Tariffs and Trade (GATT) obligations? The information provided in the panel report only allow us to speculate possible reasons that could be related to higher quality of infrastructures and services, as well as enhanced security at the Ukraine–Belarus border posts
The panel did not require Russia to clearly define its essential security interests, nor did the panel conduct any empirical assessment of the relationship between the measures and such interests
Summary
The multilateral trading system has always accounted for the reality that Members of the World Trade Organization (WTO) would take trade restrictive actions for national security reasons. 7.81 (‘Members have generally exercised restraint in their invocations of Article XXI:b(iii)’); see Alford (2011) Nothing in this Agreement shall be construed (a) to require any [Member] to furnish any information the disclosure of which it considers contrary to its essential security interests;. The panel report provides an analytical, legal framework for ascertaining whether a respondent Member properly invoked Article XXI:b(iii) The minimal legal and factual evidence required by the panel from Russia to properly invoke the security exceptions is tethered to its overarching finding that this dispute touched the ‘hard core’ of war or armed conflict.
Sign-in/Register to view highlights & summary Sign-in/Register to access full text options 
Free) 
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a call
