CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ THE CZECHOSLOVAKIAN CASE OF 1949 IN THE GATT: LUCK IN MISFORTUNE? Indeed, as discussed above, all cases that dealt with the security exception showed that the loophole was still there. 51 Discussing the chaos in the social systems, the scholars refer to the social entropy theory as a model for understanding the phenomenon in which social systems and the institutions within them tend towards a state of disorganization. 52 One should be cautious applying the social entropy theory to the WTO, but this article resorts to this use solely as a way of description of the element of chaos which was brought in by the Czechoslovakian case. D. Collins applied a social entropy theory to the world trading system in his examination of the WTO’s failure to counter the entropic tendencies that had emerged in the system of international trade. 53 L. Nielsen by referencing to the concept of entropy was claiming that the only way to restore order was to add energy. For example, she claimed that the creation of a systemic framework for the analysis of Article XX diminishes the entropy of GATT Article XX and cleans up the “mess”. 54 Likewise, one could draw a parallel with L. Nielsen’s proposal and claim that creating a framework for Article XXI could also diminish the chaos in the WTO. As is seen above, the GATT/WTO Members did not have any luck in interpreting the security exception till 2017. The time to create a framework for Article XXI of the GATT came in 2017 when Russia invoked the security exception in the case brought by Ukraine against it. 55 The difference was that the GATT Article XXI should be dealt with under WTO system, which is different from the GATT in 1949 in terms of institutional arrangements, dispute settlement procedure and political climate. The next section will provide an overview of these elements one by one. First, now the WTO is an international institution, as compared to the GATT which was an agreement, to be implemented by the ITO which never came into existence. The failure of the ITO, though, is claimed to inspire the WTO creation. 56 The institutional framework of the WTO is reflected in Article III of the WTO Agreement and if assess it from the functions’ perspective, Y. Bonzon differentiates: “implementation’ function, a ‘forum’ function’, ‘dispute settlement’ function, a ‘monitoring’ function’, and a ‘cooperation’ function”. 57 The institutional framework of the WTO gave rise to discussions of the constitutionalization of the WTO. 58 At 51 Although it sparked a discussion among scholars. See ALFORD, Roger P. ‘The Self-Judging WTO Security Exception’ (2011) 3 Utah Law Review 697., Hahn (n 44). 52 ZUCKER, L. G. ‘Where Do Institutional Patterns Come From? Organizations as Actors in Social Systems’ in LG Zucker (ed), Institutional Patterns and Organizations (Ballinger 1988). 53 COLLINS, David A. ‘The Chaos Machine: The WTO in a Social Entropy Model of the World Trading System’ (2014) 34 Oxford Journal of Legal Studies 353. p. 354. 54 NIELSEN, Laura. The WTO, Animals and PPMs (Martinus Nijhoff Publishers 2007). p. 13. 55 Russia-Traffic in Transit (n 1). 56 KUIJPER, Pieter J. ‘WTO Institutional Aspects’ in DL Bethlehem and others (eds), The Oxford handbook of international trade law (Oxford University Press 2009). 57 YVES BONZON, ‘The WTO Institutional Structure’, Public Participation and Legitimacy in the WTO (Cambridge University Press 2014) accessed 11 August 2018. More on institutional framework DAVEY, William J. ‘Institutional Framework’ in Patrick FJ Macrory, Arthur E Appleton and Michael G Plummer (eds), The World Trade Organization: Legal, Economic and Political Analysis (Springer US 2005) . 58 CASS, Deborah Z. The Constitutionalization of the World Trade Organization: Legitimacy, Democracy, and Community in the International Trading System (Oxford University Press 2005). 4. WTO in 2018: Institution, Dispute Settlement and Political Climate

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