For more than six months now, the richest country of the world has been under an embargo imposed by its Arab neighbours, apparently motivated by their discontent over Qatar’s increasingly independent course in international affairs. The embargo raises controversial questions under international law, for example in light of the principle of non-intervention and the human rights of the people affected. For now, Qatar has chosen to contest the embargo’s legality at the World Trade Organization (WTO), requesting consultations with the UAE (DS526), Bahrain (DS527), and Saudi Arabia (DS528). The dispute could, for the first time, require a WTO panel to interpret Article XXI GATT, the security provision that has been described as ‘an unreviewable trump card, an exception to all WTO rules that can be exercised at the sole discretion of a Member State’ (Roger Alford 2011; see also the blog by Diane Desierto here).
While the cases against Bahrain and Saudi Arabia have not moved past the consultations phase, Qatar has requested the establishment of a panel in the case against the UAE, and the Dispute Settlement Body (DSB) has approved this request on 22 November. Qatar’s claim concerns a long list of complaints under the General Agreement on Tariffs and Trade (GATT), the General Agreement on Trade in Services (GATS), and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). In response, the UAE has explicitly referred to the security exceptions of the relevant agreements, arguing that the measures were a response to Qatar’s funding of terrorist organizations and therefore justified in the interest of national security.
Article XXI GATT stipulates, amongst other things, that nothing in the GATT ‘shall be construed’ … ‘to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests’, in three different contexts, including those of ‘war or other emergency in international relations’. The language of Article XXI suggests it is a so-called ‘self-judging clause’, justifying measures which are considered necessary by the State that adopts them. The crucial legal question is to what extent the Article allows for review. According to the UAE, the WTO dispute settlement system is neither empowered nor equipped to hear disputes concerning national security. Qatar, however, argues that while Members have the right to adopt bona fide security measures, such measures remain subject to WTO oversight.