James Bacchus on the self-judging security exception

Last month, I had blogged here about how the security exception in the WTO Agreements may not be as self-judging as they look considering the decision of a panel in the Saudi Arabia Intellectual Property dispute at the WTO. It appeared that WTO panels were interpreting the security exception provisions to determine whether there indeed were a set of facts that justified the use of the exception and whether the measure undertaken had any relation to the security threat that the WTO member perceived there to be.

I was pleasantly surprised at the opinion in the Newsweek by James Bacchus, a former Chairman of the Appellate Body, who came to the conclusion that panels are dissecting national security exceptions as any other provision of the Agreements thus making it no longer feasible for Members to assume that when they undertake a measure under the security exception umbrella, they are above rebuke!

In his piece titled  "WTO Signals National Security No Longer Trump Card in Trade Disputes", he states:

The jurists in the Russian dispute disagreed. So too did those in the Saudi dispute. In sum, their reasoning goes: If the national security exception is self-judging, if it cannot be reviewed like any other obligation in the WTO treaty, then why do the national security exceptions in the WTO rules on trade in goods and services and on trade-related aspects of IP rights set out specific limited circumstances in which these exceptions can apply?

Notably, the panel in the Russian transit case– as mandated by the WTO treaty – drew on the "customary rules of interpretation of public international law" in noting that treaties must be upheld in "good faith" by those that are parties to them. On this basis, the panel in that case concluded that governmental actions for which a national security exception is claimed must "meet a minimum requirement of plausibility in relation to the proffered essential security interests."

The conclusion in the piece is even more interesting:

WTO rulings in disputes in which none of the disputing countries are from the West are often ignored in the politics and in the media of the West. These two rulings, though, are deserving of much global attention. They remove the foundations for the U.S. argument that it can do whatever it wishes in trade if it does so in the name of national security. And they foreshadow more such rulings to come.

Are we going to see a slew of panel decisions where measures taken by WTO members as national security measures are challenged? With no Appellate Body to decide on these panel decisions, will we see a proliferation of panel ruling that tend to take this view?