Defusing the Perils of Article XXI (b) GATT: The WTO Panel Reports on United States-Steel and Aluminium Products and United States-Origin Mark- ing Requirement

The article examines and critically discusses recent WTO Panels Reports, circulated in December 2022, pertaining to trade-restrictive measures enacted by the United States and purportedly justified under the security exception enshrined in Article XXI (b) (iii) GATT. In certain regards, the Panels sealed and consolidated the interpretation of the security exception emerged in previous reports by denying the entirely self-judging character of the provision and thus defusing its potentially “explosive” nature. On the other hand, especially in relation to what qualifies as an “emergency in international relations” pursuant to subparagraph (iii) of Article XXI (b), the Reports introduce some interesting deve- lopments. Reference has, in particular, to be made to the test of gravity requiring the invoking State to demonstrate a point of (near) breakdown or extreme deterioration of international relations. Although incidental, remarkable is also the stance that one Panel took concerning the nature of the essential security interests protected under Article XXI, which may include interests other than defence and military considerations.