This paper aims to examine options under the General Agreement on Tariffs and Trade (GATT) for exempting or justifying export restrictions or prohibitions that are in principle prohibited under Article XI:1 GATT. The paper begins by examining the exception under Article XI:2 (a) GATT, before going on to the arguments under GATT Article XX (b) and (j). In addition, the analysis considers the national security exception in Article XXI (b) (iii) GATT, given that WTO members have increasingly invoked this provision in recent years, as well as during the pandemic, when Namibia implemented COVID-19-related trade restrictions under the Agreement on Technical Barriers to Trade based on national security concerns.
The impacts of the COVID-19 pandemic on trade have been far-reaching. Countries have attempted to place export restrictions on personal protective equipment and COVID-19 vaccines. Even though export restrictions are generally unlawful under the GATT, countries have decided it is necessary at this time. Members have relied heavily on the “national security” and “critical shortage” exceptions outlined in the GATT.
This paper concludes that, depending on the circumstances of a particular case, a pandemic may constitute an emergency in international relations, as defined in Article XXI (b) (iii) GATT, and that, in such a situation, a WTO member may legitimately take action to protect its vital security interests.
The paper provides an original conclusion based on WTO case law on an issue of contemporary relevance.
