A Study Of Several Issues Concerning The Interpretation Of The GATT Security Exception Clause Treaty

Combining the rules and methods of treaty interpretation,this paper analyzes the practice of GATT XXI,the problems of the interpretation of GATT XXI,and the interpretation of the two concepts of “national security” and “emergency in international relations”.The paper puts forward that the WTO needs to keep the vagueness of the concept in the interpretation.It is suggested that the situations that do not conform to the provisions of GATT XXI should be excluded on a case-by-case basis.It is suggested that China should respond to the security exception defense of DS544.The GATT was drafted after World War II.The Parties hope to reduce trade barriers but still hope to solve disputes through diplomatic means.Therefore,the Parties stipulated right of “self-judging” in GATT XXI.“Self-judging” reflects the fierce conflict between sovereignty and free trade.WTO must be cautious in treaty interpretation of GATT XXI.The only official interpretation of GATT XXI,which was given by the Panel,was in conflict with the subsequent practice of this Article.In the era of GATT,the Parties extended the interpretation of GATT and caused abuse.Parties held the view that GATT could not review the security exception defense and also raised concerns about the abuse of the security exception clause.In the era of WTO,due to the weakening of sovereignty control over trade and the compulsion of WTO dispute settlement mechanism,The WTO gets jurisdiction over the security exception clause,though the US and Russia oppose.In the Russian transit restrictions case,the Panel,considering the security exception clause as reviewable,proposed that the invocation of Article 21(b)of GATT be limited to three of its scope,and that a good faith review of the invocation State would be carried out.The determination of jurisdiction faced with not only practical problems of violations on the interests of the great powers,the suspension of the appellate body and the difficulty in enforcing reports,but also theoretical problems of whether the jurisdiction can involve the non-trade value and the scope of sovereignty or not.Meanwhile,the ambiguity makes it difficult to interpret the security exception clause.The Panel's interpretation clearly diverges from the subsequent practice of this Article and constrains national security protection under GATT XXI to military-related security only.Based on the context,the range of national security mentioned in GATT XXI should be constrained only to military security;However,the judging of “emergency in international relations” shall be based on close analysis on cases and situations,instead of whether a dispute body has particular types of interests,as once proposed by the Panel.