Legal Study On The Restrictive Application Of WTO Security Exceptions

In March 2018,following the “232 Investigation”,the United States imposed substantial tariffs on steel and aluminum products from specific countries on the basis of WTO security exceptions clause,which further triggered the “China-U.S.Trade War”.In the domain of international law,the “War of 232” is the best proof of the necessity and urgency of establishing restrictive application rules of such provision.If no specific standards to be established,no internal operating rules of DSB to be matured,and no multilateral resort channels to be offered,the legitimate rights of China and other member States will be seriously undermined.In the long run,WTO security exceptions clause will lose its due value and fail its legislative purpose.This dissertation takes the restrictive application of GATT XXI as the research object.Based on the relevant theory and practice of international trade,this paper probes into the important contents,legislative purposes and practical difficulties of the GATT XXI.By sorting out its interpretation and application in the GATT and WTO era,this paper discusses the restrictive application trend in international trade dispute settlement.At the same time,this paper makes a detailed analysis of the “War of 232”,including the domestic practice history of “232 Investigation”,the process and international illegality of “232 War”.On these bases,suggestions on the establishment and perfection of the restrictive application rules are proposed and how China should protect its legitimate rights is illustrated.This paper contains six chapters.The introduction part demonstrates main legal issue,research value,research methods,written structure,novelty and shortcomings of this study.It also discusses literature which is significant to complete this essay.The first chapter introduces the existing regulation and practical difficulties of WTO security exceptions clause.As for the provision itself,GATT XXI covers three key words and five enumerations;it owns self-judging character;and its legislative purpose is to maintain the balance between sovereignty and international cooperation.Secondly,this section clarifies the practical difficulties caused by vague wording and uncertain self-judging scope: the out-of-date security content and insufficient practice.Thus,this chapter holds that GATT XXI is easy to be abused.In order to provide reference standards for member States and review approaches for DSB,restrictive application rules shall be established.The second chapter illustrates the restrictive application tendency by analyzing the practice of GATT XXI in the GATT and WTO era.Initially,based on the study of1949 U.S.-Export Restrictions against Czechoslovakia,1975 Sweden-Import Restrictions on Certain Footwear,1986 U.S.-Trade Measures Affecting Nicaragua,and 1991 European Community-Trade Measures Against Yugoslavia for Non-economic Reasons,the author argues that the interpretation of enumerations shares strictness tendency.Subsequently,considering the 1982 Trade Restrictions Affecting Argentina Applied for Non-Economic Reasons,1986 U.S.-Trade Measures Affecting Nicaragua,1996 U.S.-The Cuban Liberty and Democratic Solidarity Act,and 2000 Nicaragua-Measures Affecting Imports from Honduras and Colombia,the author concludes that the confined self-judging right has been advocated by the DSB.However,there is no regulation explicit expresses the DSB's jurisdiction over national security issues.Such loophole would easily lead to the misuse of member States and jeopardize the development of international trade.The third chapter focuses on the “War of 232”.It argues that under the tendency of restrictive application,the practice of America deviates international law considerably.To begin with,this chapter introduces American's historical practice of“232 Investigation”.Then,the occurring of the unprecedented “War of 232” is briefed,and an analysis of its international illegality is presented.The author summarizes: the application of America is not in accordance with GATT XXI;it deviates from the purpose of WTO and general international law;it is inconsistent with the core values of international law.Such improper application has fully provedthe necessity and urgency of establishing and perfecting restrictive application rules of WTO security exceptions.The fourth chapter proposes two complementary suggestions.Firstly,specific rules of restrictive application should be established—including the adoption of amendments,notices or decisions to clarify the applicable standards;the separation of trade and public law security interests so that self-judging right could be granted accordingly;and the establishment of procedural limitations.These measures can regulate the application of GATT XXI by member States and eliminate the review hardship of DSB.Secondly,the overall environment of restrictive application should be improved.The jurisdiction of DSB over security issues shall be ascertained;multilateral resort approaches should be provided;and the dual function of international law should be emphasized.These efforts will facilitate the restrictive application of WTO security exceptions clause,strengthen states' belief in international law and promote states' compliance.After the “Trade War”,China should adopt multi-leveled strategies to seek judicial remedies and restore bilateral relationship.The concluding part exhibits the argumentation process of this essay.Legislations status and practical difficulties are summarized.The trend of restrictive application is emphasized.The international illegality of the “War of 232” is highlighted.Two complementary measures on establishing and perfecting the restrictive application rules of GATT XXI are concluded.In the end,the author states that it is not wise to immerse oneself into the so-called “de-globalization” apocalyptic warning at current stage.It is in the process of provoking conflicts,exposing loopholes,and then continuing to “polish and repair” that the international law system can maintain its vitality.Eventually,it will promote the establishment of a more complete legal system of international trade that oriented by cooperation and development in the era of “neo-globalization”.