This Article argues that the U.S. and EC views of the national security interests exceptions reflect competing conceptions of the WTO legal order. Under the first, the WTO is viewed as merely an agreement between states governing a limited issue area, the disciplining of protectionist policies, under which other issue areas are reserved to sovereign state decisionmaking or, alternatively, whatever other international institutions states have separately granted competence for management of the issue. Under this view, the United States might well argue that its Helms-Burton sanctions are outside the jurisdiction of the WTO and instead within the jurisdiction of the United Nations (and, particularly, the Security Council).
This Article suggests yet a third mode of interpreting the essential security interests exception that mediates between the two competing conceptions. Drawing on choice of law principles, it argues that the WTO legal order should look to the practices of the United Nations to ascertain the circumstances under which a state could legitimately invoke the essential security interests exception-in particular, to whether the Security Council has ever found a similar situation to warrant international enforcement action.
Before articulating this view and applying it to the U.S.-EC dispute, Part II of this Article discusses the alternative conceptions of the WTO that underlie the competing U.S. and EC legal positions. It does so by explicating the debate between Judith Hippler Bello and John Jackson concerning the WTO remedial system, in which Bello suggests a bargain theory of the new WTO as a contract between sovereigns and Jackson argues from the premises of a public law, perhaps even quasi-constitutional, conception. Part H further explores the presuppositions inherent in Jackson's analysis of the administrative law concept of deference as a possible tool for describing the relationship between WTO dispute settlement and national adjudication of antidumping claims. Part III then employs these competing perspectives to develop arguments for and against self-judging interpretations of the WTO national security exceptions and shows how each approach fails to resolve adequately the tension between the supranationalizing effect of WTO law and the enduring importance of national sovereignty. Part IV considers the relationship between the WTO legal order and other structures of governance in the international legal order that are implicated by the two conceptions. It does so by reexamining the question of whether and how, in light of the establishment of an "Organization" for the management of world trade, WTO law can function as a special legal regime, separate from the general principles and rules of international law or the influence of other international institutions. Finally, Part V advances a choice of law approach for interpreting the essential security interests exception that addresses the weaknesses of the bargain and constitutional conceptions. It then applies the choice of law approach to the Helms-Burton dispute.
The Article concludes that, although the choice of law approach would not necessarily resolve particularly hard cases, such as that between the United States and European Union over Cuba, it would provide an objective basis for addressing disputes of this kind. It would also encourage principled decisionmaking within each institution, thus benefiting the broader community by publicizing the relationship between issue areas and the tradeoffs and bargaining that occur at the supranational level, furthering the rational allocation of decisionmaking competence and buttressing the legitimacy of the structure of international institutions as a whole.
Antonio F. Perez, WTO and UN Law, 23 YALE J. INT’L L. 301 (1998).