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Спор Россия - Меры, связанные с транзитом грузов: исторический доклад Третейской группы Органа по разрешению споров ВТО

Международное правосудие, Россия . 2019. № 2. С. 20-30.
Боклан Д. С., Шауберт М. В.

The article aims at interpreting and analyzing the WTO security exceptions.
Provisions of Article XXI(b)(iii) of the GATT relating to a situation emergency
in international relations have been applied by a panel for the first time in
GATT/WTO history in Russia – Measures Concerning Traffic in Transit case.
The landmark decision contains important conclusions regarding the scope
of this exception and reviewability of measures adopted thereunder. The article
analyzes subjective and objective approaches towards interpretation of
the WTO security exception, as well as at the approach of the Panel in Russia – Measures Concerning Traffic in Transit case. The article concludes that
the position adopted by the Panel illustrates its attempt to strike a balance
between two opposite views on whether measures adopted under the security
exception can be reviewed. On the one hand, the decision clarifies a
number of previously disputed issues on the WTO security exception’s interpretation.
On the other hand, its language is ambiguous relation to several
important issues, which creates a risk of potential abuses. The article further
concludes that, relying on the principle of effective interpretation that is well
established in the WTO practice, the Panel established a four-tier test for the
purposes of Article XXI(b)(iii). Pursuant to this test, measures adopted
thereunder must be consistent with the following criteria: chronological criterion,
the criterion that there be an emergency in international relations,
the criterion requiring the asserted security interests to be essential, as well
as the criterion that there be a nexus between the adopted measures and
their alleged purpose. The article indicates that the Panel’s attempt to balance
security interests of states with their obligations under the WTO resulted
in application of a combined approach: when interpreting paragraph (iii)
of Article XXI(b) of the GATT the Panel used objective approach, whereas
under the chapeau of Article XXI(b) it used subjective approach.