Security exception and the question of interpretation

For those following the issue of cybersecurity, cyber warfare and international remedies an interesing debate on the use of the security exception of the GATT to address the issue is found in an Opinio Juris debate here. The IELP blog has a commentary here. I have blogged about the security exception earlier here and here.

Article XXI of the GATT which deals with the Security Exception states:

          "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
 

(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."

The issue of the cybersecurity knocking at the doors of WTO has been discussed in trade circles for sometime now. However, will it find a way through the security exception? Is a self-judging security exception without interpretative limits? Can it be interpreted to suit any national need? Are there inherent limits ot the application of the principle? The dispute settlement proceeding of the WTO has not had an opportunity to interpret the security exception clause yet.Increased use and an eventual challenge may provide it an opportunity to set the contours of the exception like it has int he case of Article XX of the GATT which deals with general exceptions. Till then it is upto the individual members to interpret the provisions. However, the self-judging nature of the clause "which it consider necessary" may not be entirely over-expansive considering the context of the exception itself. 

Syria, EU and export ban - Security Exception?

(Courtesy: Los Angeles Times)


Came across this piece in Reuters about a ban of exports of luxury goods to Syria by the European Union.

"The European Union on Friday banned exports to Syria of luxury shoes, caviar and boats, as well as goods with possible military applications, in an effort to step up the pressure on President Bashar al-Assad's government and family.

The decision came as violence surges in Syria, despite an April 12 ceasefire negotiated by international mediator Kofi Annan and a range of sanctions by the European Union, United States and others against Damascus.

"In the current situation, the EU must keep up the pressure on the Syrian regime," EU foreign policy chief Catherine Ashton said in a statement."

This has been reported in the LA Times too. While the report stated that luxury goods exports were banned, exports of non-luxury items was not banned. Is this ban permitted under WTO law?


Article XXI of GATT that covers Security Exceptions states:

" 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

(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."

Does the export ban of luxury goods to Syria fall under an "action" under Article XXI (b)? Is the ban necessary for the protection of its essential security interests as "considered" by the EU? If so, what justifies the luxury non-luxury distinction? While the ban on military related goods clearly fall under categories (i) and (ii) of Article XXI (2) (b), can it be extended to consumer goods too? Further, does Article XXI allow a country to take a unilateral decision based on its own consideration of security interests? Is it subject to judicial review? While I am not commenting on the violence in Syria (since I have no competence or knowledge about it), is the measure in consonance with Article XXI? Is there a possibility that the Article XXI exception can be used as a tool in non-trade related crisis, especially deeply political ones with security implications? While this is not a protectionist measure, does it have a possibility of being misused in cases where political establishments are at ideological wars? Am I treading into sensitive territory?