Divergent Strategies: A Legal History of the WTO’s National Security Exception in the Context of a Globalized Economy, 1983-2019

Authors

William J. Gardner Jr.

Abstract

This student note provides a legal history of the World Trade Organization’s (WTO) adjudication of “national security” disputes under Article XXI of the General Agreement on Tariffs and Trade (GATT). The skeptical German historian Oswald Spengler noted, “History is direction—but Nature is extension—ergo everyone gets eaten by a bear.” Tracing the history of landmark GATT and WTO decisions from the 1983 US—Trade Measures Affecting Nicaragua case, this note weaves through the WTO’s relatively consistent reluctance to engage in domestic policy, detailing the WTO’s massive deviation from that policy in the 2019 Russia—Measures Concerning Traffic in Transit case. In doing so, this note presents a comprehensive history of the GATT and the WTO, while describing the fundamental themes of conflict presented throughout the WTO’s relatively short history, especially in the context of the national security exception. Those themes, namely the so-called “shock of the global” and globalization, and the WTO’s struggle to reconcile domestic and international interests, permeate throughout the history of the GATT and the WTO. In effect, this paper details the WTO’s challenges with national security and domestic affairs, which some speculate might lead to a self-cannibalization of the WTO, especially should the United States elect to leave the organization within the next year.

Recommended Citation

William J. Gardner Jr., Divergent Strategies: A Legal History of the WTO’s National Security Exception in the Context of a Globalized Economy, 1983-2019, 28 U. MIA Int’l & Comp. L. Rev. 181 (2021)
Available at: https://repository.law.miami.edu/umiclr/vol28/iss1/9