Jason Ruiz*
* Moot Coach for the Willem C. Vis International Commercial Arbitration Moot and soon LLB at Universidad Francisco Marroquín (Guatemala). Email: jasonruiz@ufm.edu
The Treaty Examiner, Issue 3 (June 2020), pp. 89-97.
The COVID-19 pandemic emerged as a surprise for most western countries. At this point it is clear that some countries were better prepared than others to face such a critical and complex situation. As a result, different governmental and non-governmental bodies are taking measures and acting with their best efforts to reduce the negative consequences as much as possible.
Due to the need to provide a fast and effective response to the crisis, several countries resorted to figures like the ‘states of emergency’, ‘justitium’, ‘senatum consultum ultimum’ or analogous legal figures where fundamental rights can be reduced or limited in order to provide states with a broader set of actions to deal effectively with the crisis. However, during this period of time, when we invest more trust and powers in government officials, abuses of power or authority can be committed. Some state measures or economic restrictions that are not necessary to fight or respond to the COVID-19 may be imposed by states for pretextual reasons. This article addresses whether States can claim that measures in breach of international law are justified under national security exceptions, and whether international courts or tribunals are competent to review the consistency of such measures with international law.
Initial Remarks on the National Security Exception
It is important to clarify that the academic majority argues that there is no implicit national security exception in all treaties (1). The national security exception is not regulated in the Vienna Convention on the Law of Treaties (2), the ILC Draft Articles on State Responsibility (3) or mentioned as part of the Customary International Law. As a result, there has to be a clear and explicit national security exception contained in the treaty.
ICJ Jurisprudence on National Security Exceptions
The International Court of Justice (ICJ) has made certain decisions that shed light on the issue from a general public international law perspective.
In the case UK v. Iceland, Fisheries Jurisdiction (1973), when dealing with an implicit (4) rebuc sic statibus exception (5), the ICJ stated:
…the alleged changes could not affect in the least the obligation to submit to the Court’s jurisdiction, which is the only issue at the present stage of the proceedings. It follows that the apprehended dangers for the vital interests of Iceland, resulting from changes in fishing techniques, cannot constitute a fundamental change with respect to the lapse or subsistence of the compromissory clause establishing the Court’s jurisdiction…’
This case illustrates the concept of exceptions or affirmative defenses in the context of international Law. In this case the Court concluded that the invoked exception could have an impact on the substantive obligations of a treaty, but not on the compromissory clause establishing its jurisdiction. Moreover, the function of an exception is to clarify in which situations it is legal to ignore the general obligation, whether for a change in circumstances, national security or other justifiable reason.
Furthermore, in the ICJ case concerning Military and Paramilitary Activities (1986) (6), the relevant clause of the Treaty of Friendship and Commerce (TFC) stated as follows (7):
The present Treaty shall not preclude the application of measures: …
(d) necessary to fulfill the obligations of a Party for the maintenance or restoration of international peace and security, or necessary to protect its essential security interests.
To solve this case the ICJ distinguished between the GATT language that allows a Party to take actions it ‘considers necessary’ and the TFC that speaks simply of ‘necessary’ measures, regardless of state considerations. The Court found that the United States’ mining of Nicaraguan ports, direct attacks on ports and oil installations, and the imposition of a trade embargo were not ‘necessary’ to protect the essential security interests of the United States (8).
Lastly, the ICJ case concerningCertain Questions of Mutual Assistance in Criminal Matters (2008) is relevant. (9) This case concerned the refusal by the state of France (government and judicial authorities) to execute an international letter rogatory regarding the transmission to the judicial authorities in Djibouti of the record relating to the murder of Bernard Borrel, thus violating the Convention on Mutual Assistance in Criminal Matters between the Republic of Djibouti and the Republic of France of 1986 and other international obligations between the mentioned states.
The relevant clause of the treaty read:
Article 2 (c) of the [1986] Convention . . . provides that the requested State may refuse a request for mutual assistance if it considers that execution of the request is likely to prejudice [the] sovereignty, . . . security, . . . ordre public or other . . . essential interests [of France].
The ICJ began its examination of Article 2 of the 1986 Convention by observing that, while it was correct, as France claimed, that the terms of Article 2 provide a State to which a request for assistance has been made with a very considerable discretion, this exercise of discretion is still subject to the obligation of good faith codified in Article 26 of the 1969 Vienna Convention on the Law of Treaties (10). In other words, this discretion based on security or public policy (ordre public) must not lead a State to ignore entirely the rules of cooperation in good faith and equality between States which that State must observe under general international law (11).
These cases show that, from a general public international law perspective, state measures imposed for national security reasons are generally reviewable, and subject to a general obligation of good faith.
GATT Jurisprudence on National Security
From an International Economic Law perspective, Article XXI of the 1947 and 1995 General Agreement on Tariffs and Trade (GATT) provides as follows:
Nothing in this Agreement shall be construed
(a) to require any contracting party to furnish any information the disclosure of which it considers contrary to its essential security interests; or
(b) to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests
(i) relating to fissionable materials or the materials from which they are derived;
(ii) relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment;
(iii) taken in time of war or other emergency in international relations; or
(c) to prevent any contracting party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
No jurisprudence exists in the GATT era interpreting the scope of this article. There are two GATT Panel decisions (12) where, despite theoretically applicable, due to external factors the panels were not able to give proper interpretations of Art XXI. These cases show that measures taken for national security reasons are reviewable under the GATT.
For example, in US – Imports of Sugar from Nicaragua (1984) (13), President Reagan’s administration decided to reduce the import quota of sugar from Nicaragua (From 58,000 to 6,000 short tons) in order to reduce the resources available to that country for financing its military build-up, and its support for subversion.
According to the Panel Report, the US did not try to defend its actions in GATT or trade terms. ‘The United States stated that it was neither invoking any exceptions under the provisions of the General Agreement nor intending to defend its actions in GATT terms. … The United States was of the view that attempting to discuss this issue in purely trade terms within the GATT, divorced from the broader context of the dispute, would be disingenuous’ (14). As a result, the Panel found that the reduction of the import quota was inconsistent with GATT obligations and prompted the contracting parties of the GATT to make a recommendation to the US to allocate to Nicaragua a sugar import quota consistent with GATT provisions on trade.
In the second case, US – Trade Measures Affecting Nicaragua (15), the President of the United States issued an Executive Order prohibiting all trade with Nicaragua in 1985. The GATT Panel was not able to analyze Art XXI GATT because the parties agreed to the exclusion of article XXI from the terms of reference. The panel determined that it was limited by its terms of reference not to examine U.S. actions, but it made clear that, in general, panels could review invocations of article XXI (16). The panel also mentioned that reading Art XXI with other GATT provisions and a coherent interpretation would favor the interpretation that measures taken pursuant article XXI should be reviewable (17).
WTO Jurisprudence on National Security
In the context of the Law of the of the World Trade Organization (WTO), the first precedent is Russia – Measures Concerning Traffic in Transit (18). This case arose because in 2014, Russia imposed import bans and transport restrictions for goods of Ukrainian origin (19). Ukraine maintained that the Russian trade restrictions were inconsistent with GATT obligations and the Protocol of the Accession of the Russian Federation. Russia’s response was principally that it considered the measures in question necessary for the protection of its essential security interests within the meaning of Article XXI(b)(iii) GATT. It claimed that it adopted those measures as a result of the ‘emergency in international relations that occurred in 2014 that presented threats to the Russian Federation’s essential security interests’. Russia further argued that Article XXI(b)(iii) GATT is completely ‘self-judging’, since the chapeau of Article XXI states ‘any action which it considers’.
Ukraine ’s response was that the language of article XXI does not imply that Member states enjoy ‘total discretion’. Had the standard been ‘total discretion’, there would have been no reason to include separate paragraphs in article XXI and to distinguish between different types of security interests. Furthermore, a panel’s objective assessment must include an examination of whether a Member invoking Article XXI has done so in good faith, notwithstanding the absence of an introductory paragraph similar to the chapeau to Article XX (20).
The panel divided its analysis in two parts: Firstly, it analyzed the objective requirement of sub-paragraph (iii) of Art XXI. Secondly, it analyzed the subjective requirement of the chapeau Art. XXI GATT. The first requirement consists in analyzing if the measure was imposed during a time of war or other objective situation that justifies the existence and protection of a specific security interest. The second part, encompasses the subjective analysis, meaning that the measures which the respondent state considers necessary for the protection of the essential security interest, also comply with the bona fide test, meaning that there is in fact an identifiable security interest that the measure is trying to protect and that it is plausible to achieve the protection of such interest by the imposition of such measure.
While the Panel considered that Russian measures complied with both requirements, the Panel made certain obiter dicta that could be relevant for certain post-COVID-19 disputes. For example, the objective requirement is not limited to wars or armed conflicts but also other emergencies in international relations or global politics. In other words, it covers situations where war-like interests are protected like the maintenance of law and public order. That definitely hints on whether this requirement could be complied with for measured imposed during ‘states of emergency’ during the COVID-19 pandemic.
Also, regarding the subjective requirement, the Panel stated that there is a good faith obligation for Member states, to avoid the circumvention of WTO obligations under the excuse of the protection of security interests (21). It also referred to EC – Bananas III (Ecuador) (Article 22.6 – EC) in which the arbitrators interpreted the phrase ‘if that party considers’ in Articles 22.3(b) and 22.3(c) of the DSU as providing a margin of appreciation to the party which was nevertheless subject to review by the arbitrators. Concluding that there is no equivalent obligation anywhere in the text of Article XXI that expressly conditions the discretion accorded to an invoking Member under the chapeau of Article XXI(b), the panel found that states have a broader discretion when justifying measures or actions under the subjective analysis of the national security exception.
The last case in the context of WTO Law isSaudi Arabia – Measures Concerning the Protection of Intellectual Property Rights (22). In this case, Qatar made a complaint regarding Saudi Arabia and certain measures and omissions that were inconsistent with TRIPS obligations. Specifically, the promotion and support of the ‘beoutQ’, a copyright-piracy operation in the field of sports broadcasting (23). Since 2017 beoutQ has been re-badging and re-broadcasting TV sports matches (such as the Premier League, UEFA, FIFA, La Liga, NBA) and other sports events within seconds of their original licensed broadcast by beIN Sports on its 10 pay-TV channels.
The Panel found that Saudi Arabia had acted against TRIPS obligations for supporting and deliberately abstaining from taking meaningful measures against beoutQ. As a defense, Saudi Arabia invoked Art. 73(b)(iii) (the security exception of the TRIPs). The panel considered that the severance of diplomatic relations between claimant and respondent were enough to consider an emergency in international relations. Regarding, the good faith standard Saudi Arabia has expressly articulated its ‘essential security interests’, in terms of protecting itself ‘from the dangers of terrorism and extremism’. Saudi Arabia took umbrella measures to cut any direct or indirect relationship with Qatar, which justifies some of the measures i.e. anti-sympathy measure (24). However, the Panel considered that the non- application of penalties or criminal procedures could not be justified under such security interest. Because third-party right holders like the EU, Brazil and other organizations like FIFA were also being victims of the violations of TRIPS obligations (25), not all of the measures could be justified under Art. 73(b)(iii) TRIPS and Saudi Arabia has to bring its actions in to conformity with its WTO obligations.
Concluding Thoughts
International jurisprudence shows that measures imposed during states of emergency would generally be reviewable under international law and WTO Law. Moreover, the differences will probably arise in the merits analysis and the different standards of different treaties. However, as analyzed before, the WTO regime grants member states a wider margin for justifying the measures under the essential security exception, but even in this regime there are still enough safeguards in place to bar the imposition of arbitrary measures imposed to circumvent international obligations.
PIE DE IMPRENTA: Juan Pablo Hernández (editor-in-chief), Guatemala, 30 June 2020.
Endnotes
1. Susan Rose-Ackerman and Benjamin Billa, Treaties and National Security, p. 443- 451
2. United Nations, Vienna Convention on the Law of Treaties, May 23 1969
3. International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001
4. Not introduced explicitly by agreement on the treaty at hand but regulated on the Vienna Convention on the Law of Treaties. The ICJ mentioned ‘This principle, and the conditions and exceptions to which it is subject, have been embodied in Article 62 of the Vienna Convention on the Law of Treaties, which may in many respects be considered as a codification of existing customary law on the subject of the termination of a treaty relationship on account of change of circumstances.’ International Court of Justice, Fisheries Jurisdiction, Judgment of 2 February 1973, page. 19 para 36
5. International Court of Justice, Fisheries Jurisdiction, Judgment of 2 February 1973, Pag. 20, para 40
6. International Court of Justice, Military and Paramilitary activities (US – Nicaragua), Judgement of 1986
7. Treaty of Friendship, Commerce, and Navigation, U.S.-Nicaragua, art. XXI(1)(d), Jan. 21, 1956, 9 U.S.T. 449.
8. International Court of Justice, Military and Paramilitary activities (US- Nicaragua), Judgement 1986 Para 141-142
9. International Court of Justice, Judgement of 4 of June of 2008, (DJIBOUTI v. FRANCE); For Summary of the Judgement see: https://www.icj-cij.org/files/case-related/136/14572.pdf
10. International Court of Justice, Judgement of 4 of June of 2008, (DJIBOUTI v. FRANCE), Para 145
11. International Court of Justice, Judgement of 4 of June of 2008, (DJIBOUTI v. FRANCE),Para. 225
12. By GATT Panels I refer to the Panels that resolved disputes pertaining to the GATT (1945) until the establishment of the WTO in (1994) with the Marrakesh Agreement.
13. GATT Panel Report, US- IMPORTS OF SUGAR FROM NICARAGUA, Report of the Panel adopted on 13 March 1984 (L/5607 – 31S/67), Paras. 2.1-2.4
14. GATT Panel Report, US- IMPORTS OF SUGAR FROM NICARAGUA, Report of the Panel adopted on 13 March 1984 (L/5607 – 31S/67), Paras 3.10-3.11
15. UNITED STATES – TRADE MEASURES AFFECTING NICARAGUA Report by the Panel (L/6053)
16. UNITED STATES – TRADE MEASURES AFFECTING NICARAGUA Report by the Panel (L/6053) Para. 5.17
17. UNITED STATES – TRADE MEASURES AFFECTING NICARAGUA Report by the Panel (L/6053) Paras. 5.14- 5.16
18. Panel Report, RUSSIA – MEASURES CONCERNING TRAFFIC IN TRANSIT , WT/DS512/R, April 5 of 2019
19. Panel Report, RUSSIA – MEASURES CONCERNING TRAFFIC IN TRANSIT, WT/DS512/R, Paras 7.5 – 7.11
20. Para. 7.33 of the Panel Report; Which was an argument very similar to the argument presented by Djibouti in the case Djibouti v. France.
21. Panel Report, RUSSIA – MEASURES CONCERNING TRAFFIC IN TRANSIT , WT/DS512/R, Paras.7.131-7.133
22. Panel Report, SAUDI ARABIA – MEASURES CONCERNING THE PROTECTION OF INTELLECTUAL PROPERTY RIGHTS ,WT/DS567/R, June 16 2020
23. Panel Report, SAUDI ARABIA – MEASURES CONCERNING THE PROTECTION OF INTELLECTUAL PROPERTY RIGHTS ,WT/DS567/R, Para 2.40
24. Panel Report, SAUDI ARABIA – MEASURES CONCERNING THE PROTECTION OF INTELLECTUAL PROPERTY RIGHTS ,WT/DS567/R, Para. 7.287
25. Panel Report, SAUDI ARABIA – MEASURES CONCERNING THE PROTECTION OF INTELLECTUAL PROPERTY RIGHTS ,WT/DS567/R, Para. 7.292
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