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.
This Article thus will move from a general account of different principles of legitimation, to the correlative principles for relating states to the United Nations (U.N.) under a federalist theory of a supranational constitution, and to an account of how supranational constitutional politics could legitimately amend the Charter. With the theoretical structure emplaced, the Article then proceeds to describe the constitutional processes amending the Charter, closely analyzing the Secretary-General's Agenda for Peace" and the response of the U.N. organs and members which subsequently confirmed its constitutional significance. Finally, the Article demonstrates the content of the amendment to the Charter through a sequential survey of transformations of the traditional law of self-determination, collective action, and sharing of the burdens of collective action among the members of the U.N. It then concludes with an assessment of the effect the amendment of the U.N. Charter has had on U.N. policy-making in the critical test case of Yugoslavia.
Antonio F. Perez, On the Way to the Forum: The Reconstruction of Article 2(7) and the Rise of Federalism Under the United Nations Charter, 31 TEX. INT’L L. J. 353 (1996).