Turkey threatens Russia with WTO action: A likely futile affair

While the start of a new year for many people means a list of resolutions and lifestyle changes, for Recep Erdogan’s Turkey the start of 2016 means the implementation Russian agri-food sanctions. Moscow adopted the measures in the wake of the shooting down of a Russian jet by the Turkish Air Force. In November 2015, Russian President Vladimir Putin directed Prime Minister Dmitry Medvedev’s administration to identify a number of goods to be banned from import into Russia. Two days later, on November 30th, Medvedev dutifully issued Resolution No. 1296, which singled out seventeen tariff line items (mostly fruits, vegetables and poultry) to be barred from import.  Although the Russian government actions were adopted at the end of November, the bans did not come into force until January 1st.

In response to the newly in-effect import restrictions, the Turkish government has threatened to take the issue up with the WTO. Specifically, Economy Minister Mustafa Elitas was reported to have spoken of filing a complaint with the dispute resolution body of the global trade organization.

Even though the Russian sanctions appear to be rather straightforward violations of at least two GATT articles, it is far from certain that Turkey would find remedy under the WTO’s dispute settlement system. While the import bans appear to violate both Articles XI:1 and XIII:1, such restrictions may fall under the so-called national security exception found in Article XXI(b)(iii), and thus could be permissible.

Article XI:1 provides that “[n]o prohibitions or restrictions . . . shall be instituted or maintained by any contracting party on the importation of any product of the territory of any other contracting party . . . .” As regards Article XI:1, the Brazil—Retreaded Tyres panel stated matter-of-factly that “[t]here is no ambiguity as to what ‘prohibitions’ on importation means: Members shall not forbid the importation of any product of any other Member into their markets.” Even assuming the narrowest of interpretations of “prohibitions,” it seems rather obvious that Russia’s anti-Turkish measures would count as such.

At the same time, Article XIII:1 holds that “[n]o prohibition or restriction shall be applied by any contracting party on the importation of any product of the territory of any other contracting party . . . unless the importation of the like product of all third countries . . . is similarly prohibited or restricted.” Because the Russian import ban targets only one country while allowing imports from other WTO Members, it seems like a clear Article XIII:1 violation as well.

Even if a WTO panel were to find that the Russian actions violated the aforementioned articles, the import bans would still be allowable if the panel determined that the measures were taken, as per Article XXI(b)(iii), “for the protection of its essential security interests . . . taken in time of war or other emergency in international relations.” Certainly if one were to ask Russia whether the measures were necessary, the reply would be a resounding “da!

In most legal disputes, one party’s own subjective view is generally not determinative. However, in the case of the GATT’s national security exception, that may actually be the case. This is because Article XXI(b) states 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.” The inclusion of those three seemingly innocuous words has led many international trade scholars to conclude that Article XXI is “self-judging,” which would mean that the WTO dispute resolution body would have no role in determining whether a nation’s measures truly were necessary to protect essential security interests. If that is the case, Russia’s sanctions are clearly covered by Article XXI, and any Turkish complaint would be futile.

It is presently unclear whether a WTO panel would similarly conclude that a country’s invocation of Article XXI is entirely self-judging. Despite the security exception’s long history, there has never been a definitive interpretation of its language. If Turkey does follow through with its threats to file a complaint with the WTO, the resulting panel report would provide much needed clarification.

Interestingly enough, ahead of the recent Nairobi Ministerial, Russia itself requested just such clarification (connected to US and EU sanctions against Russia). However, the worldwide meeting in Kenya came and went without so much of a peep about Article XXI and its possible limitations.

My own view, after going through a rather dry VCLT Article 31–32 analysis, is that while the exception is mostly self-judging, a WTO panel could find some external limits on a country’s ability to invoke Article XXI’s protections. Specifically, a panel might find a requirement of good faith when a country invokes the national security exception. However, even if a panel were to find a good faith obligation, I believe Russia’s measures would meet such a non-exacting standard.

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