Difficulties And Solutions In The Application Of WTO Security Exception Clause

Whether the General Agreement on Tariffs and Trade(GATT) or the General Agreement on Trade in Services(GATS), they all set essential security interests exception clause. This clause is allowed to be against obligation of the treaties when member state(s) need(s) protect its national security. As a systemic arrangement, the security exception can urge the member states to perform the obligation, and as well as reserve the right to keep the essential interests. The role it plays can be described as “sovereignty safety valve” in the process of making and performing treaties, and it is of great importance.For a long time, the application of the security exception clause was considered as the parties’ self-judging right by many member states, and they even thought that the clause should not be reviewed by the dispute settlement body. In the specific description, the clause has been provided by using some key words with strongly subjective moods, such as the “essential security interests”, “it considers”, “necessary”, etc. And because of lacking of definite and authoritative interpretation on treaty as well as lacking of formal binding award made by the GATT or WTO during the process of settling the trade disputes, a fierce controversy was created in the application of this clause. The early practice in application of the security exception clause was mainly concentrated on the US-Soviet hegemony, in which that clause was often used as a weapon to combat the countries which stood on the opposite ideological side by making economic sanctions to achieve the political goals. With the end of the Cold War and the collapse of the bipolar structure, WTO was established and perfected many problems which the GATT had in the multilateral trading system. Meantime, the security clause had also been set in the growing number of bilateral agreements. So the frequency in the application of the security exception in the multilateral trading system had been reduced to some extent. Although the security exception clause is open to abuse. In fact, however, the practices of members were all kept calm when dealing with this clause. All these actions make the security exception a "dead clause". In addition, with the birth of the non-traditional security concept, more and more member states find that the traditional security concept is not sufficient to deal with the current international social security. They tried to break through the security exception clause which maintain the military, national defense and other traditional security interests within the multilateral trading system, and they began to call for security exceptions to the new security concept and the connotation. These problems bring new challenges on the security exception clause based on the traditional security concept. On one hand, it cannot keep the balance between the protection of the member states’ essential security interest and the prevention the abuse of the clause; on the other hand, it also pick out a new question that how to keep pace with the times in a new international background.The probe into the clause of this article is started from the Article 21 of the GATT, i.e. security exception clause, by in-depth investigating and researching on the structure and applicable practice of the clause. By analyzing of different opinions, difficulties and the reason leading to the difficulties that occurred in the process of applying the security exception clause in a further step, the author tries to find out the effective measures to solve such problems. At last, the article concentrates on China’s upcoming network security review system. Specifically as follows:The first section introduces the practices in application of the security exception of GATT. Combined with the information about current international legislations and the cases formed by the period of GATT and WTO, this section mainly involves the background, causes of the core connotation, logic structure and national practices in application of the security exception clause.The second section mainly analyzes the predicaments in proposing the security exception clause. Based on national practices, the author not only focuses on the study of analyzing and summarizing the differences and difficulties result from the process of security exception’s application, but also tries to find the reasons.Section three discusses the path that solve the clause’s difficulties. According to the article 31 of Vienna Convention on the Law of Treaties, the article makes a very detailed discussion and analysis about the wording such as “essential security interests’ and “necessary” etc., and tries to solve the difficulties in application of the clause even they are extremely vague and general. Moreover, the article also points out the clause should add new security items in order to adapt to the development of the non-traditional concept and international economic relationships.Section four is China’s related standpoints. First, the article describes and summarizes the China’s practice of domestic legislation and application about the security exception clause. Second, it points out the current problems which may occur. Finally, by taking the China’s upcoming network security review system as an example, some practical and useful legal countermeasures are proposed in this dissertation.