Abuse Of The Governance Path Of The WTO Security Exception And China’s Response

There have been many abuses of WTO security exception clauses in recent years,which have also led the academic community to consider this clause a loophole in the multilateral trading system.At present,in trade practice,the main manifestations are the abuse of unilateral measures,the proliferation of trade protectionism,and the suspension of the WTO Appellate Body due to a shortage of judges.The abuse of security exceptions has played a role of "fueling the flames".In addition,due to the sensitivity and complexity of the term security,the practice of abusing security exceptions may break the already fragile balance between national security and free trade,leading to the replacement of ordinary trade measures by security measures,which in turn affects the operation of the multilateral trade order.In the post epidemic era,the abuse of security exceptions is likely to escalate into trade protectionism and unilateralism,exacerbating the trend of anti globalization.In the expert group report on the China US DS544 case released on December 9,2022,it was determined that the measures taken by the United States to impose tariffs on steel and aluminum products violate relevant WTO regulations and there are no successful cases of invoking security exceptions,which constitutes an abuse of this provision,Although the United States filed an appeal to the Appellate Body on January 26,2023,claiming that the WTO does not have jurisdiction,the conclusions of the Expert Group in this case and the Russia Ukraine Transit Restriction Measures case have to some extent demonstrated that the security exception clause is not a safe haven for trade protectionism.In addition,in response to the crisis caused by the WTO and the different interests of various countries,various countries have "banded together to warm up",and have established regional trade agreements such as CPTPP,NAFTA,and RCEP.The provisions on security exceptions are also different.Although this move is full of exploration of security exceptions,it has also impacted the multilateral trading system to some extent.This thesis takes the WTO security exception clause as the research object,based on the relevant theoretical practices formed since the establishment of GATT and the WTO,discusses the main content,purpose,and practical difficulties of this clause,and analyzes the interpretation of the security exception clause by the expert group and the different attitudes of various countries towards this clause through sorting out relevant international trade dispute practices,including the "232" investigation in the United States and the case of Russia Ukraine’s transit restriction measures in recent years,Analyze and discuss the inherent defects and reasons for abuse of this clause,and on this basis,propose suggestions for improving the application of this clause in practice.Then,propose China’s remedies and how China should invoke this clause to safeguard its legitimate rights and interests.This article consists of five major parts.The introduction raises questions and elaborates on the current phenomenon of abusing security exception clauses,which the WTO lacks in response to.The second part outlines the institutional framework,practical value,and practical shortcomings of security exception clauses.Firstly,in terms of its institutional framework and practical value,the nature of security exception clauses is self-determination.Its main purpose is to balance the conflict between national sovereignty and trade freedom,providing explanatory space for members to maintain their own security,and also promoting the process of trade liberalization;Secondly,due to the impact of factors such as the vague expression of the clause and the unclear scope of self-determination,disputes over the abuse of the clause have occasionally occurred in practice.Based on this,the reasons and effects of the abuse of the clause are analyzed.The third part is about the identification criteria,reasons,and impacts of the abuse of security exceptions.Based on the analysis of relevant cases,it is concluded that the identification criteria for the abuse of this provision are the right to self-determination,necessity,and emergency state of international relations.The main reasons are the protection of domestic industries,the absence of punitive measures to invoke failure,the unrestricted right to self-determination,and the complexity of the connotation of the term "security".On this basis,The main impacts of abusing this clause include abusing unilateral measures,threatening the security and predictability of the WTO,and the impact of the development of regional trade agreements on the WTO system.The fourth part puts forward WTO suggestions for improving security exceptions,including two parts:substantive and procedural.Substantive improvement suggestions include restrictions on the right of self-determination of members,expanding the scope of application of basic security interpretations,and clarifying the criteria for adjudication of good faith interpretations.Procedural improvement suggestions include establishing a mandatory notification obligation in advance,establishing a compensation mechanism for abuse of security exceptions,and establishing a review mechanism for trade and security.In the fifth part,based on the previous discussion,China should maintain the operation of the multilateral trading system of the WTO,explore ways to reasonably resolve disputes with disputing parties,and invoke the restraint principle of security exception clauses,respond to disputes through multiple channels,resolve differences,maintain the multilateral system,and promote the good operation of trade globalization and trade liberalization.In fact,when differences arise between members,adopting trade protection and invoking security exceptions and exemptions are not the best choices,because the process of globalization is irreversible,and conflicts during this period cannot be avoided.What we can do is to strengthen communication and cooperation between members in the spiral of negation and negation,to achieve mutual benefit and win-win results.