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National Security Exceptions in the WTO – A Carte Blanche for Protectionism? Part II – US - Steel and Aluminium Products disputes, Improvements of the Security Test, Conclusion

Mihai Ioachimescu-Voinea

Part two of the article analyses based on two possible scenarios whether United States was indeed right to rely on the security exception of Article XXI, by using the ‘roadmap’ provided by the panel in the Russia — Measures Concerning Traffic in Transit case.
In the first scenario, I envisaged that United States could easily rely on the argument that the armed conflicts it is currently involved in, amounts to a ‘emergency in international relations.’
The advantage of this line of argument is that the emergency represents a ‘war’ or ‘armed conflict’ and the ‘sliding-scale’ test would lean in United States` favour. The disadvantage is that the United States` claimed ‘security interests’ do not emerge out of the ‘emergency in international relations’, as it would be necessary to pass the subjective test.
In the second examined scenario, I analysed the possibility of the United States to argue that there is an economic war with China, that should be deemed as an ‘emergency in international relations.’ The advantage of this argument is that the two investigation reports made by the Department of Commerce of the United States in respect to the steel and aluminium imports identify China`s production practice as being related to United States` industry decline. Therefore, there is a sufficient link between the ‘emergency in international relations’ and the ‘security interests’ of the United States. However, as I found out, the reasons provided by the United States are mostly economic in nature and with no substantial impact on its security interests. Therefore, using the test developed in Russia — Measures Concerning Traffic in Transit, the article concludes that a panel would most likely find that the measures undertaken by United States cannot be justified under Art. XXI of the General Agreement on Tariffs and Trade.
The legal test represents a solid framework for further developments, that will allow other panels to engineer future mechanism which will enhance their scrutiny prerogatives. In this regard, I proposed a series of adjustments to the legal test, that would make it more flexible such as to accommodate new security threats and maintain the necessary deferential approach. The test would enable a panel to closely scrutinize cases where there are traces of abuses, while allowing a large discretion for states to adopt less restrictive measures. Through its flexibility, the test will allow the states to rely more frequently on the security exception, implicitly recognising the de facto loss of the latter’s exceptional character.
The upcoming challenges for the panel`s test will be to withstand over time, in face of the pressure the Appellate Body is submitted to, as well as to cope with the new security threats, such as cybersecurity and climate change. In my view, the test is sufficiently adaptable to accommodate such new threats.