Not self-judging no more!

 The security exception has hogged the limelight of late. Recent WTO decisions have called into question the self-judging character of the security exception in WTO agreements.I have blogged about it here, here and here.

A recent blogpost in Opinio Juris throws some light of the issues involved:

The tussle between the ‘self-judging’ nature and the objective assessment of these requirements has arisen in the past. In defending her export restrictions against Czechoslovakia, USA contended that the WTO had no jurisdiction to question a Member State’s exercise of sovereignty. Similarly, the EC defended the suspension of imports from Argentina on the ground that the security exception was a repository of “unspecified, inherent rights”. This exception has been litigated recently in the Russia – Traffic in Transit and Saudi Arabia – Measures Concerning Protection of IPR (Saudi Arabia – IPR), largely putting this debate to rest by rejecting the notion of the security exception as an unlimited escape clause.

A recent blogpost on Kluwer Arbitration Blog on space law and ISDS, took me to an interesting analysis of the security exception in a BIT as compared to WTO law.

While analysing the security exception clause in a BIT in the CC/Devas vs. India arbitration dispute, the Tribunal tried to make a distinction between the broad exception in the BIT as agains the seemingly "self-judging character" of the provisions under WTO law. 

Indeed, it is well established by judgments of the International Court of Justice (the “ICJ”) and investment arbitration awards that, unless a treaty contains specific wording granting full discretion to the State to determine what it considers necessary for the protection of its security interests, national security clauses are not self-judging.

In footnote 286, the tribunal notes:

Self-judging “essential security interests” provisions are far from being unknown in international law. See, for instance, Article XXI of the General Agreement on Tariffs and Trade 1947 (“GATT”): “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…” (emphasis added); ...

I found this reference to self-judging clauses interesting. In the end, they are no longer self-judging as they seemed to be with recent WTO jurisprudence.