CYIL vol. 9 (2018)

VIKTORIIA LAPA

CYIL 9 ȍ2018Ȏ

3. Dealing with GATT Security Exception till 2018: any Luck? As D. Knoll mentions, the Czechoslovakian case established “the loophole” which was “given full play” by further disputes. 43 Indeed, the further disputes during the GATT era did not lead to an adopted Panel report on the GATT security exception. 44 The cases were solved either under the political influence reigned in the GATT or by the diplomatic means. Throughout the record of use of GATT Article XXI the only case where it seemed that “spirit” of the GATT helped to prevent an abuse was the case Sweden-Import Restrictions on Certain Footwear . 45 In this case the GATT Members expressed their concern as to justification of import restrictions under Article XXI and Sweden withdrew its measures in 1977. 46 The example of a solution of the case by diplomatic means and the only dispute during the WTO era dealing with the security exception was the EU complaint which challenged the US boycott of goods from Cuba introduced under the US Helms-Burton Act. 47 Following the EU complaint, the US agreed to amend the provisions of the Act and the EU in turn suspended the Panel proceedings. 48 In the end the dispute was resolved in a diplomatic way 49 and the authority of the Panel lapsed in 1998 when apparently the Panel report was ready for release. 50 All in all, Article XXI remained untouched both during GATT and the WTO periods and left a lot of unclarity and unanswered questions for many years ahead. In light of this, one could claim that the Czechoslovakian case has introduced an element of chaos. 43 KNOLL, David D. ‘The Impact of Security Concerns upon International Economic Law’ (1984) 11 Syracuse Journal of International Law and Commerce 567. p. 591. 44 The GATT Article XXI record of use was extensively discussed elsewhere. See PELC, Krzysztof J. Making and Bending International Rules: The Design of Exceptions and Escape Clauses in Trade Law (Cambridge University Press 2016). p. 101 and HAHN, Michael J. ‘Vital Interests and the Law of GATT: An Analysis of GATT’s Security Exception’ (1991) 12 Michigan Journal of International Law 558. pp. 569-578. 45 On the use of the security exception by Sweden see BHALA, Raj. ‘National Security and International Trade Law: What the GATT Says, and What the United States Does Symposium on Linkage as Phenomenon: An Interdisciplinary Approach’ (1998) 19 University of Pennsylvania Journal of International Economic Law 263. pp. 272-273. 46 GATT Contracting Parties, ‘Sweden – Import Restrictions on Certain Footwear (17 November 1975) L/4250, 3’ . 47 For a discussion of this case see KLINTON, Alexander W., ‘The Helms-Burton Act and the WTO Challenge: Making a Case for the United States under the GATT National Security Exception’ (1997) 11 Florida Journal of International Law 559. and DATTU, Riyaz and BOSCARIOL, John. ‘GATT Article XXI, Helms-Burton and the Continuing Abuse of the National Security Exception’ (1997) 28 Canadian Business Law Journal 198. 48 The European Union at the DSB meeting, as a response to the concern of Cuba that the EU abandoned the case, emphasized that “…the Community had not withdrawn its request for the establishment of a panel nor had it terminated the work of the panel but had asked for the suspension of the panel’s work pursuant to Article 12.12 of the DSU. It had done so due to the fact that it had continued negotiations with the United States…” Dispute Settlement Body WTO, ‘Dispute Settlement Body, Minutes of Meeting, Held in the Centre William Rappard on 22 June 1998, WT/DSB/M/46’ . p. 18. 49 SMIS, Stefaan, VAN DER BORGHT, Kim. ‘The EU-U.S. Compromise on the Helms-Burton and D’Amato Acts’ (1999) 93 The American Journal of International Law 227. 50 Taking into account the fact that the Panel was established on 20 February 1997 See United States – The Cuban Liberty and Democratic Solidarity Act [1998] WTO DS38. DS38/3, Communication by the DSB Chairman dated 20 February 1997.

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