Author: Anatol Jaśkowiec


The “DS512 Russia — Measures Concerning Traffic in Transit, Report of the Panel” case is the first ever jurisdiction sentenced regarding the article XXI of GATT 1994. Until this judgement, all the disputes, in which art. XXI was invoked, have been suspended and did not reach the outcome. DS512 Russia case is of historical matter, as it eventually clarified interpretation of mentioned article, which allows each member of WTO to legally and effectively suspend free trade provisions in case of emergency by invoking “national security” interest. The judgement may be interpreted both ways. On the one hand, WTO finally gave a green light for particular political interest to prevail over multilateral interest of seeking equality and freedom in trade. On the other hand, for the good of international trade system, it might contribute to tying hostile actions, derivatives of war, into a legal framework even more than before. In a long distance future that may result in strengthening authority and credibility of WTO as an institution being able to decide which conflicts are justiciable and which are not.

Background of the dispute

The dispute is an outcome of an encounter of two post-soviet republics – 2014 hybrid war between Russia and Ukraine. As the public unrest in Ukraine toppled the government, Russian-Ukrainian tensions began to rise. Series of military actions in Crimean Peninsula and Donbas were followed by economical clashes. In 2016, Russian authorities ordered a road blockade targeting Ukraine, stopping the Ukrainian lorries from reaching Central Asian trade destinations, such as, Kazakhstan and Kirgizstan.[1] That set in motion the Tit for Tat mechanism and resulted in imposing wider set of bans and sanctions for both sides.  On September 14th 2016 Ukraine initiated a dispute against Russia, under WTO procedures. They challenged Russian bans and restrictions on road and rail cargo traffic, which were claimed to be inconsistent with Russian obligations arising from freedom of transit contained in the article V of GATT 1994. In addition, Ukrainian side also accused the Russian of a few more misconducts, such as, acting against article X and commitments included in Russian Protocol of Accession.[2] In response, Russia invoked article XXI, claiming that their measures were justified by the need of sustaining national security. However, the most essential part of Russian defence, was the argument that WTO has no legal authority to adjudicate whether undertaken actions are consistent with “security clause” in article XXI.

Legal Basis

GATT 1994 consists of 4 parts in general. The second part, more accurately articles from III to XXIII, establishes a system of specific, forbidden, mainly non-tariff measures including freedom of transit (article V). Provisions XX and XXI include two exceptions which a WTO member can invoke on in order to justify suspension of other articles.[3] As a rule, WTO dispute settlement system rarely rules in favour of arguments based on these exceptions.[4] It does so to limit countries eagerness to break the rules of free trade.

Article XXI allows WTO members to conduct any actions that are necessary for “protection  of  its  essential  security interests” if 1) are related to fissionable materials or the materials from which they are derived, 2) related to the traffic in arms, ammunition and implements of  war and 3) taken in time of war or other emergency in international relations. In addition, it allows to invoke fulfilment of UN obligations as a condition enabling suspension of GATT provisions.

On the other side, there is article V, which was claimed by Ukraine to have been broken. The provision explains that traffic in transit is a transport which goes from exporter to importer through a third country, and passage across such a country is only a portion of a complete journey. It also says that all  charges  and  regulations  imposed  by  contracting  parties  on traffic in transit shall be reasonable, having regard to the conditions of the traffic.

Another important legal factor is that invoking on article XXI is conducted under normal proceedings of GATT. The Panel decided that there are no exceptions in that matter. This is crucial to apprehend the Russian line of defence and why it was eventually broken.

The Defendant’s Arguments

The Russian arguments consisted of two main thoughts. First thought argued that security exception in article XXI is beyond WTO jurisdiction and that the Panel has no authority to adjudicate on compatibility of measures undertaken by Russia. Second argument emerge from the first one, and claims that Russia does not bear any burden of proof, which releases a defendant form his duty.[5] The statement was later backed by another great power – USA – which was added to the proceedings as a third party. USA tried to convince that WTO has jurisdiction, but neither Panel or Appellate Body was able adjudicate on article XXI, therefore it was supposed to be a “political escape clause”. [6] It was related to the “political question” doctrine, present in the US law, which was intended to be transposed into the international trade law[7]. Both countries stated that appraisement whether the security measures are necessary or not is totally self-judging.

The Panel findings comment

This issue is the key feature of the whole dispute. The Panel, after a lengthy review of negotiation history and debates over the essence of article XXI, concluded that it had jurisdiction to adjudicate. The Panel stated that necessity of undertaken measures required an objective evaluation. That statement seemed to be very controversial for many, and has been widely debated thereafter.

From my point of view, the judgement was appropriate. Introducing a general clause of “minimum requirement of plausibility”[8], that has to be met by the undertaken measures in relation to the security interests, seems to be quite a fair solution. The judgement prevents from possible waywardness that could have arisen. If a member state was able to justify its incompliant actions without any jurisdiction, it would shortly result in justifying any actions by invoking the article XXI.  By binding “hostile” political actions into the legal framework, the Panel elaborated a system that might discourage member states from abusing international trade regulations. It might be discussed whether the minimum plausibility should be, in fact, minimum or maximum. For example in the European Union law, exceptions, which allow to restrain certain freedoms, are interpreted very strictly. Only obvious interests are accepted. That is what makes the whole system work. However, the WTO does not have such authority as EU has, regarding its members. Admitting only security measures that are obviously plausible might result in dissatisfaction among members, because conflicts will rise anyway and defendants would be left without any weapon. In such a case, common ignorance of WTO judgements would be inevitable. It is needed to strike a balance between justice and politics, as article XXI is extraordinarily political, it should be discussed as somehow political for WTO as well.

Leaving political aspect aside, there arises a question – is the article XXI so fluent that it can be interpreted in so many ways? Even though chapeau of art. XXI (b) contains a phrase „any action which it [defendant] considers necessary” which clearly indicates the ability to self-judge the “necessity”, The Panel found that such ability can be limited by Member’s obligation to adhere to the obligation of good faith as a general principle of law and a principle of general international law.[9] These rules seems no to undermine literal interpretation of art. XXI, but rather complementing the rule. In consequence, on that basis the Panel can evaluate the necessity.

ICJ rulings

International Court of Justice, whose jurisprudence might be considered as a point of reference for WTO dispute settlement proceedings, has already adjudicated in cases with security clause similar to that included in GATT. For example, in “Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) Merits, Judgment ICJ Reports 1986” ICJ found that the following phrase “necessary  to  protect  its  [Member’s]  essential  security  interests” does not exclude necessity from court jurisdiction. There were more cases where security clause was debated, but in general the clauses were constructed in quite a similar way, and ICJ ruling doctrine was sustained.[10] However, there is a difference in GATT security clause as it contains a phrase “which it considers necessary” so ICJ judgements may seem to be inadequate. But it might be sufficient to outline overall international legislation tendency, that intends the clause to be adjudicated.

Negotiation history

The Panel has also reviewed negotiation history of GATT security clause. After detailed analysis it eventually considered that “the „balance” that was struck by the security exceptions was that Members would have „some latitude” to determine what their essential security interests are, and the necessity of action to protect those interests, while potential abuse of the exceptions would be curtailed by limiting the circumstances in which the exceptions could be invoked to those specified in the subparagraphs of Article XXI(b)” and “in the light of this balance, the security exceptions would remain subject to the consultations and dispute settlement provisions set forth elsewhere in the Charter.”[11]

The Outcome

ICJ jurisprudence and GATT negotiation history combined seem to be sufficient justification for application of good faith principle. This thesis can be also supported by the article 31 of DSU[12], which establishes as follows: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. Both context and purpose aim at the multilateral security and credibility, as can be concluded from the documents above, rather than security of particular interests.

Eventually, the Panel adjudicated that, despite inconsistent arguments, Russian measures were sufficient to be justified by the article XXI. Russia was allowed to sustain its bans on traffic in transit. But plenty of controversial issues remain and might cause more trouble in future. There comes the question how to interpret the words “essential security interests” and “maintenance of international peace and security” contained further in the article in regard to the use of good faith principle? We have to somehow distinguish if the state of emergency is indeed connected with the defensive response and decide if the emergency is essential enough to be considered as an adequate reason the country has to defend against. In this case, a dispute was based on Ukrainian-Russian hybrid war, where in fact there were not direct hostile actions taken and the status of war within the meaning of international law is questionable. [13]



The Panel’s judgement is a breakthrough in jurisdiction over security clause in WTO. It directs the way of interpretation for future rulings. Despite its importance for multilateralism, it is widely criticised. Mostly great powers, such as US and Russia, stay in opposition to it, as the judgement limits their power. In contradiction to them, supporting the judgement, remain European Union and China which benefit from the multilateral trade system. Additionally, in the recent years, as the WTO dispute resolution system gets more and more obstructed by Donald Trump[14], the organisation cannot afford any further loosening of the legal framework. It is already about to lose its ability to adjudicate. Agreeing on article XXI being invoked without any control would have caused total loss of credibility and sense of existence of the organisation.

[1] Russia-Ukraine road blockades hit trade, (dostęp 01.04.2020),

[2] Dylan Geraets, WTO Issues Ruling in Russia – Traffic in Transit: Measures Justified on National Security Grounds Are Justiciable, (dostęp 25.04.2020),

[3] COURSE ON DISPUTE SETTLEMENT – Module 3.5. WTO: GATT 1994, (dostęp 26.04.2020),

[4] Łukasz Gruszczyński, Marcin Menkes, Łucja Nowak, Prawo międzynarodowe gospodarcze, Warszawa, C.H. Beck, 2016, s. 48

[5] Iryna Bogdanova, Adjudication of the GATT security clause: to be or not to be, this is the question, WTI Working Paper No.01/2019, World Trade Institute, 2019

[6] ibidem

[7] ibidem

[8] Dylan Geraets, WTO Issues Ruling in Russia – Traffic in Transit: Measures Justified on National Security Grounds Are Justiciable, (dostęp 25.04.2020),

[9] Panel Report, Russia – Traffic in Transit, para. 7.132-7.138.

[10] Iryna Bogdanova, Adjudication of the GATT security clause: to be or not to be, this is the question, WTI Working Paper No.01/2019, World Trade Institute, 2019

[11] Panel Report, Russia – Traffic in Transit, para. 7.83.-7.126.

[12] ‘DSU,  Dispute  Settlement  Rules:  Understanding  on  Rules  and  Procedures  Governing  the  Settlement  of  Disputes, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, 1869 U.N.T.S. 401, 33 I.L.M. 1226 (1994)’

[13] Carina Lamont, What is War? Ukraine and the legal definition of war, Swedish Defence Research Agency, 2014, s. 2

[14] Keith Johnson, How Trump May Finally Kill the WTO, (dostęp 01.04.2020),

Anatol Jaśkowiec – student in Faculty of Law and Administration at University of Warsaw. Graduate of School of Law and Economy of China. His research interest concern on international trade law and international arbitration.