초록/요약

Over the past decade, security exceptions were relied rather on sporadic and informal occasions, and were not invoked actively. However, in the midst of the expansion of trade protectionism and deterioration of multilateral cooperation system, the invocation of security exceptions, particularly under Article XXI of the GATT, has proliferated. The most obvious and consequential examples of this trend are the trade restrictive measures allegedly taken for the protection of national security by the United States. In the meantime, with the arise of industrial subsidies and transnational subsides, the issue of subsidies has recently come to the fore in the international trading system. Subsidies are disciplined under the WTO SCM Agreement, but the SCM Agreement lacks general and security exceptions. The issue of the applicability of general exceptions under Article XX of the GATT to other WTO agreements, including the SCM Agreement, is appearing quite frequently before the WTO dispute settlement system, and thus over the recent years a lively discussion has emerged on this issue. However, the issue of whether security exceptions under Article XXI of the GATT would be available to justify measures inconsistent with the SCM Agreement, devoid of such exception, has still remained untouched. Accordingly, this paper aims to examine whether GATT Article XXI can apply to the SCM Agreement. This paper first introduces arguments in favor and against the applicability of GATT Article XX to the SCM Agreement, along with relevant cases. Then the paper analyzes the applicability of GATT Article XXI to the SCM Agreement, based on the ruling in the Russia–Traffic in Transit case in which, for the first time, security exceptions under Article XXI of the GATT have been interpreted and applied by a WTO Panel in 2019.