US – Origin Marking (Hong Kong, China) – case note

author: Tomasz Sowa, LL.M.

ABSTRACT: 

The panel report in US –  Marking Requirement (Hong Kong, China) is the next report, which concerns two highly controversial issues regarding the defence based on Article XXI (b)(iii) of the GATT 1994, being its self-judging nature and the designates of the phrase “emergency in international relations”. The case note briefly summarise the facts of the case, the legal issues and reasoning of the panel. Then, it confronts the conclusions of the panel with other panels’ reports concerning the defence under Article XXI (b)(iii) of the GATT 1994. The case note shows that the report in US – Marking Requirement (Hong Kong, China) contributes vast arguments to the discussion over the security exceptions, supporting and developing the understanding of the concepts underlying the defence. However, the application of the panel’s interpretation to the facts of the case raises some questions that are worth of further analysis.

I. Introduction

In the last years we observe significant raise of disputes where WTO Members invoke security exceptions to justify measures otherwise be inconsistent with WTO agreements. Escalating tensions among key players in international relations affect trade and investment, so the defence, which has been dormant for years, gained momentum. The panel report in US –  Marking Requirement (Hong Kong, China)[1] is the subsequent ruling on this emerging issue.

In Part II I provide a concise summary of the facts and reasoning of the panel. Then, in Part III I start with the significance and implications of the report, and then I make an analysis of the issues in the context of other reports concerning Article XXI (b)(iii) of the GATT 1994,[2] in particular with the panel report in Russia-Measures Concerning Traffic in Transit, which was the first comprehensive report on that defence. Part IV constitutes a short summary of my arguments.

II. Summary outline of the case

A.     Facts of the case

The panel was established on Hong Kong, China request concerning the requirement applied by the United States that imported goods produced in Hong Kong may no longer be marked to indicate “Hong Kong” as their origin but must be marked to indicate “China”.[3]

The challenged measure was adopted in the context of events taking place in Hong Kong, following China’s enactment of the so-called “National Security Law”,[4] which raised severe international concerns about the Hong Kong’s autonomy worldwide.[5]

Hong Kong, China challenged the measure under Articles 2(c) and 2(d) of the ARO,[6] Article 2.1 of the TBT Agreement,[7] and Articles I: and IX:1 of the GATT 1994.[8]

B.     (Not) self-judging nature of Article XXI (b)(iii)

At the outset, the United States invoked a defence based on its essential security interest under Article XXI (b)(iii) of the GATT 1994. It claimed that Article XXI (b)(iii) is “entirely self-judging”, so the panel must not assess whether the conditions for the defence are fulfilled.[9] Hong Kong, China expressed the opposite view that said article is only partially self-judging, so the panel is entitled to review the measure. Given the potential non-justiciability character of the defence, whether there was a breach or the conditions to invoke the defence were met, had to be assessed afterwards.

The axis of the dispute between the parties was the phrase “which it considers”, used in Article XXI (b)(iii), i.e., does this extend to the subparagraphs or the scope of the phrase is narrowed only to the chapeau.[10]

The panel approached this question by deep analysis of the text of Article XXI (b)(iii) under the customary rules of interpretation of public international law.[11] The analysis mainly encompassed its grammatical structure, which was found by the panel to form a part of the text’s ordinary meaning. At the end, the panel determined that the phrase “which it considers” does not extend to the subparagraphs. Instead, the subparagraphs limit the Members’ discretion in which the invoking Member may take action which it considers necessary to protect its essential security interest.[12]

The panel tested the conclusion on the ordinary meaning against the treaty’s context, object, and purpose.[13] Contrary to the view of the United States, the panel neither found there is a subsequent agreement regarding the interpretation of Article XXI (b)(iii) within the meaning of Article 31 (3)(a) of the VCLT, [14] nor that the GATT/ITO negotiating history[15] and Uruguay Round negotiations,[16] support its view. Overall, the panel held that Article XXI (b)(iii) is not entirely self-judging as the phrase “which it considers” of the chapeau does not extend to the subparagraphs. Hence, it proceeded with further analysis of whether the measure at issue breached the covered agreements and whether the defence raised by the United States under Article XXI (b)(iii) was justified.[17]

C.        Meaning of the phrase “emergency in international relations.”

Given that the panel established that Article XXI (b)(iii) is not entirely self-judging, it must have assessed whether the conditions provided therein were met. The panel started with reviewing subparagraph (iii), following the analysis sequence in Russia – Measures Concerning Traffic in Transit[18] and Saudi Arabia – IPRs.[19]

The analysis of the ordinary meaning of the phrase “emergency in international relations” in three authentic languages, followed by the contextual analysis under the VCLT, prompted the panel to conclude that the phrase “emergency in international relations refers to the state of affairs, of the utmost gravity, that represents a breakdown or near-breakdown in the relations between states or other participants in international relations”.[20] When the panel confronted this conclusion with the facts of the case, it held that the situation at issue does not meet the level of gravity to constitute an emergency in international relations under Article XXI (b)(iii).[21]

III      Assessment of the report

D.     Significance of the decision

The panel’s report in US –  Marking Requirement (Hong Kong, China) is a consecutive ruling on the essence of the security exception under Article XXI (b) of the GATT 1994. The report follows the reports of Russia – Measures Concerning Traffic in Transit and Saudi Arabia – Measures Concerning the Protection of Intellectual Property Rights,[22] where panels faced similar problems, being the self-judging nature of Article XXI (b)(iii)[23]  and designation of the phrase “emergency in international relations” used in subparagraph (iii).

These issues remain highly controversial since the Article XXI (b) of the GATT 1994 has been drafted.[24]  There is no doubt that the Members should have some latitude under the covered agreements to take security measures they deem necessary, which do not always align with GATT obligations and needs of international trade. It is in the self-interest of the system.[25] The question is where to strike the balance to maintain the stability and predictability of the system to avoid abuse by those who do not want to play fair on the international playground. Too broad exceptions may be easily misused to escape from undertaken obligations, making the whole framework precarious. The report in US –  Marking Requirement (Hong Kong, China) makes two important conclusions, tilting the scale of balance towards the interests of international trade at the cost of latitude of the Members in shaping their national policies. Firstly, it strengthens the position taken by the panels in former reports that Article XXI (b)(iii) is not entirely self-judging, and this defence is subject to review by the panels. Secondly, it confirms that the phrase “emergency in international relations” refers to a situation of substantial gravity, setting a very high threshold to demonstrate that events invoked by a defendant fall under this provision.

Given that in the last years, we have observed a significant increase in disputes over measures that are allegedly taken in times of “emergency in international relations”,[26] this case is of the utmost importance, in particular in the context of the Appellate Body Crisis originating mainly out of the United States concerns about the dispute settlement system under WTO.[27] Noteworthy, the report is meaningful for the interpretation of Article 73 of TRIPS and Article XIVbis of the GATS since their wording is similar to Article XXI of the GATT 1994.

E.     (Not) self-judging nature of Article XXI (b)(iii) – the overall assessment

The United States and Hong Kong, China did not dispute the meaning of the phrase “which it considers”, as it is quite clear. They accepted that the words that, if qualifies, must be left for the self-judgement (determination) of the invoking Member.[28] The problem, exactly like in Russia – Measures Concerning Traffic in Transit,  was whether the phrase “which it considers” extends to the subparagraphs (i)–(iii) or is limited to the chapeau.

The panel followed the findings in Russia – Measures Concerning Traffic in Transit, albeit for different reasons. In that case, the panel stated that the “mere meaning of the words and the grammatical construction of the provisions” may lead to the conclusion that the phrase “which it considers” applies also to the subparagraphs, but it is the logical structure of the provision which limits the scope of its application only to the chapeau.[29]  The Panel in US –  Marking Requirement (Hong Kong, China), on the other hand,  concluded that this is the ordinary meaning of the words of Article XXI (b), determined with deep grammatical analysis, that limits the phrase “which it considers” only to the chapeau.[30]  The panel tested that conclusion against the context, object, purpose of the treaty, negotiation history and potential subsequent agreements in terms of Article 31 (3)(a) of the VCLT of the VLCT, but it was the text of Article XXI (b)(iii) itself that allowed the panel to make that finding.

That textual analysis of Article XXI (b)(iii) is significant step towards the ultimate removal of doubts whether Article XXI (b)(iii) is entirely self-judging or not. One may say that the conclusion on the nature of Article XXI (b)(iii) in Russia – Measures Concerning Traffic in Transit was revolutionary.[31] However, the analysis made by the panel in US – Marking Requirement (Hong Kong, China) saved and maintained the revolution. The reasoning in Russia – Measures Concerning Traffic in Transit on the nature of Article XXI (b)(iii) was rather superficial, being on one hand acceptable but not exhaustive enough in terms of the VLCT on the other hand. Given the Appellate Body Crisis,[32]  lack of exhaustiveness could fuel the arguments of the United States against the system.[33] In this sense, the approach in US –  Marking Requirement (Hong Kong, China) enhances the legitimacy of the concept that raising a defence under Article XXI (b) is subject to objective review by the panels.

The interpretation of the panel is also backed by plausible procedural arguments. T.  Voon points out that if the clause was self-judging the panels were to stop examination of the case once the security exception is invoked and fail to comply with their obligation under Article 11 of the DSU.[34] G. Vidigal adds that the non-justiciable nature of Article XXI (b)(iii) does not comply with an obligation to establish a panel under Article 6 of the DSU. Moreover, Article 7.1 and 7.2. of the DSU require the panels to examine and address all the relevant provisions invoked by the parties to the case.[35] H. L. Schloemann and S. Ohlhoff note that no provision of the DSU applies particularly to disputes concerning security exceptions, which incline that panels’ jurisdiction is preserved on general terms.[36] Thus, the conclusion drawn by the panel in Russia – Measures Concerning Traffic in Transit, continued in this case, is textually justified and anchored in procedural rules.

This approach is also followed in other disputes concerning the security exception provided in Article XXI (b) of the GATT 1994 with some differences in the reasoning, which do not alter the outcome.[37]

F.      “Emergency in international relations” – a new (better?) approach

The second issue analysed in detail by the panel was the designation of the phrase “emergency in international relations”.

The panel developed the arguments of Russia – Measures Concerning Traffic in Transit on this issue.[38] It partially followed the reasoning to the extent of gravity of the situation falling under that phrase[39] but clarified that it may encompass facts outside defence and military matters.[40] Moreover, it appears the panel extended the territorial and relational range of “international relations” that the “emergency” may occur in.[41]  These three points require a more detailed analysis.

First of all, the panel maintained a very high threshold to justify the measure under subparagraph (iii).[42] According to the panel, the phrase “emergency in international relations refers to the state of affairs of the utmost gravity that represents “a breakdown or near-breakdown” in the relations between states or other participants in international relations”.[43]  The key point here to understand is that that state’s type, nature or source is not that important. For this exception to apply, there must be established that the state of affairs has serious, grave (amounting to breakdown or near-breakdown) impact on international relations, irrespective of what caused that impact.[44]

Secondly, the panel refrains from the possible interpretation of the conclusion in Russia – Measures Concerning Traffic in Transit that emergency may only concern defence or military interest.[45] The panel pointed out that each situation will need to be considered on individual merits, which implies that the panel allowed for the possibility that non-defence or non-military matters may also fall under that phrase. This is a propitious interpretation. Indeed, international relations may be negatively affected to the utmost gravity without a risk that the adversary will involve a single gun.[46]

Thirdly, according to the panel, the “emergency in international relations” neither has to come out of the territory of the invoking Member nor concern only bilateral relations, but may affect relations of other Members too.[47] This is a very significant contribution regarding the problem’s origins, giving rise to take security measures. The Panel in Russia – Measures Concerning Traffic in Transit appears to take the narrow view that the situations falling under “emergency in international relations” have to surround or engulf a state (perhaps because of the nexus of that phrase to the defence or military interests).[48] Here, the panel seems to take a broader view, which deserves much credit. Nothing in that phrase’s wording, context or purpose suggests any proximity to the Member invoking a defence.[49]

However, the conclusion of the panel on this issue raises some questions. It appears from the above that any situation, despite its location, may be in the ambit of that phrase. That would be logical. It does not matter whether “emergency in international relations” happens on the other side of the world to find that it is an “emergency in international relations”, if we objectively assess that state of affairs. As the panel duly observes, the phrase does not contain any words that could limit it to some specific international relations.[50] Then, for example, the military coup in Niger[51] may be deemed such an “emergency in international relations”, irrespective of the potential impact on the defendant’s relations. However, it does not mean that other conditions justifying the defence are met.

Yet, the panel in the overall assessment focused only on international relations between Hong Kong, China on one side and the United States and other WTO Members on the other, finding that the situation has not escalated to a point of breakdown or near-breakdown.[52] But what about the relations of China and Hong Kong, China? In general, the status of Hong Kong, China is complicated, but it is evident that it is a separate WTO Member. It can participate in international trade agreements, it can be a member of international organizations.[53] If the panel finds appropriately that international relations may concern states and other participants in international relations,[54] then it should assess whether the phrase “international” may apply to relations between China and Hong Kong, China and if so whether the “emergency” occurred.[55] The evidence delivered by the United States established prima facie that the relations between China and Hong Kong, China, were tense.[56]

That assessment could potentially transfer the review to the level of the chapeau, where the United States would perhaps have to face the rest of the three-tiered test anchored in the general principle of international law to “act in good faith”.[57] However, the analysis of whether it would succeed is beyond this case note’s scope.

IV     Conclusion

The panel’s report in US –  Marking Requirement (Hong Kong, China) is the following ruling on the essence of the security exception under Article XXI (b) (iii) of the GATT 1994. It addressed two controversial issues, being the self-judging nature of Article XXI (b)(iii) of the GATT and the designation of the phrase “emergency in international relations” used in subparagraph (iii). The report develops and strengthens the position taken in former cases concerning Article XXI (b)(iii) that it is not entirely self-judging so that defence is subject to objective assessment by the DSB. The detailed analysis of the panel solidly enhances that view’s legitimacy. Moreover, the panel made significant developments on the phrase “emergency in international relations” designates included in subparagraph (iii). It allowed the possibility that situations falling under that phrase do not necessarily have to be of a defence or military nature. It also allowed that other than bilateral relations may be relevant in terms of that phrase. However, I believe the panel should have assessed if  “international relations” between China and Hong Kong, China, may be of concern, which is somewhat counterintuitive. That could, but not necessarily, have impacted the outcome.

Bibliography:

1. Alford, Roger P, ‘The Self-Judging WTO Security Exception’ (3) UTAH LAW REVIEW 697
2. Boklan, Daria and Amrita Bahri, ‘The First WTO’s Ruling on National Security Exception: Balancing Interests or Opening Pandora’s Box?’ (2020) 19(1) World Trade Review 123
3. Economic and Social Council of the United Nations, THIRTY-THIRD MEETING OF COMMISSION A HELD ON THURSDAY, 24 JULY 1947, at 2.50 P.M. IN THE PALAIS DES NATIONS, GENEVA. (No E/PC/T/A/PV/33) <https://docs.wto.org/gattdocs/q/UN/EPCT/APV-33.PDF>
4. Press, The Associated, ‘Hong Kong Security Law Criticized Abroad, Defended by China’, Associated Press Newswires (online, 1 July 2020) <http://global.factiva.com/redir/default.aspx?P=sa&an=APRS000020200630eg6u008y9&cat=a&ep=ASE>
5. Schill, Stephan and Robyn Briese, ‘“If the State Considers”: Self-Judging Clauses in International Dispute Settlement’ (2009) 13(1) Max Planck Yearbook of United Nations Law Online 61
6. Schloemann, Hannes L and Stefan Ohlhoff, ‘“Constitutionalization” and Dispute Settlement in the WTO: National Security as an Issue of Competence’ (1999) 93(2) The American Journal of International Law 424
7. Shotter, James, Sam Fleming and Ben Hall, ‘How Migration Became a Weapon in a “Hybrid War”’, Financial Times (online, 5 December 2021) <https://www.ft.com/content/83ece7e4-cc71-45b5-8db7-766066215612>
8. Tania, Voon, ‘Testing the Limits of WTO Security Exceptions’ (14 June 2023) East Asia Forum <https://www.eastasiaforum.org/2023/06/14/testing-the-limits-of-security-exceptions/>
9. Vidigal, Geraldo, ‘WTO Adjudication and the Security Exception: Something Old, Something New, Something Borrowed &#150; Something Blue?’ (2019) 46(3) Legal Issues of Economic Integration <https://kluwerlawonline.com/api/Product/CitationPDFURL?file=Journals\LEIE\LEIE2019013.pdf>
10. Voon, Tania, ‘The Security Exception in Wto Law: Entering a New Era’ (2019) 113 AJIL Unbound 45
11. Yoo, Ji Yeong and Dukgeun Ahn, ‘Security Exceptions in the WTO System: Bridge or Bottle-Neck for Trade and Security? Section 2’ (2016) 19(2) Journal of International Economic Law 417
12. Russia – Measures Concerning Traffic in Transit [2019] (WT/DS512/R, 4 May 2019)
13. Saudi Arabia – Measures concerning the Protection of Intellectual Property Rights [2020] Report of the Panel WT/DS567/R
14. United States – Certain Measures on Steel and Aluminium Products (China) [2022] Report of the panel WT/DS544/R
15. United States – Certain Measures on Steel and Aluminium Products (Norway) [2022] Report of the panel WT/DS552/R
16. United States – Certain Measures on Steel and Aluminium Products (Switzerland) [2022] Report of the panel WT/DS556/R
17. United States – Certain Measures on Steel and Aluminium Products (Turkey) [2022] Report of the panel WT/DS564/R
18. United States – Origin Marking Requirement [2021] Report of the panel WT/DS597/R
19. Agreement on Technical Barriers to Trade
20. Agreement on the Rules of Origin
21. Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region. 2020
22. The General Agreement on Tariffs and Trade 1994
23. Vienna Convention on the Law of Treaties 1969
24. ‘Communication from Hong Kong to the World Trade Organization, 3 June 1997, WT/L/218’ <https://docs.wto.org/dol2fe/stronas/SS/directdoc.aspx?filename=Q:/WT/L/218.pdf>
25. Ioanes, Ellen, ‘Niger’s Coup and the International Community’s Opposition, Explained’, Vox (29 July 2023) <https://www.vox.com/world-politics/2023/7/29/23812389/niger-coup-africa-ecowas-tchiani-bazoum>
26. ‘Report on the Appellate Body of the World Trade Organization’, United States Trade Representative (February 2020) <http://ustr.gov/about-us/policy-offices/press-office/press-releases/2020/february/ustr-issues-report-wto-appellate-body>
27. ‘The World Trade Organization: The Appellate Body Crisis | Scholl Chair in International Business | CSIS’ <https://www.csis.org/programs/scholl-chair-international-business/world-trade-organization-appellate-body-crisis>

*****

[1] United States – Origin Marking Requirement [2021] Report of the panel WT/DS597/R.

[2] The General Agreement on Tariffs and Trade 1994.

[3] United States – Origin Marking Requirement (n 1) 2.1.

[4] Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region. 2020.

[5] The Associated Press, ‘Hong Kong Security Law Criticized Abroad, Defended by China’, Associated Press Newswires (online, 1 July 2020) <http://global.factiva.com/redir/default.aspx?P=sa&an=APRS000020200630eg6u008y9&cat=a&ep=ASE>.

[6] Agreement on the Rules of Origin.

[7] Agreement on Technical Barriers to Trade.

[8] United States – Origin Marking Requirement (n 1) 3.1.

[9] Ibid 7.18.

[10] Ibid 7.27.-7.30.

[11] i.e. in accordance with Vienna Convention on the Law of Treaties 1969. (hereinafter: “VCLT”)

[12] United States – Origin Marking Requirement (n 1) 7.34.-7.90.

[13] Ibid 7.137.-7.150.

[14] Ibid 7.158.

[15] Ibid 7.164.-7.175.

[16] Ibid 7.176.-7.179.

[17] In this case, the panel did not follow the sequence of analysis in Russia-  Measures Concerning Traffic in Transit. In that case the panel had proceeded straight to the analysis under XXI (b)(iii) before establishing whether there was a breach (Russia – Traffic in Transit, para. 7.108.).

[18] Russia – Measures Concerning Traffic in Transit [2019] (WT/DS512/R, 4 May 2019) 7.120-7.125.

[19] Saudi Arabia – Measures concerning the Protection of Intellectual Property Rights [2020] Report of the Panel WT/DS567/R, 7.241-7.243.

[20] United States – Origin Marking Requirement (n 1) 7.304.

[21] Ibid 7.354.

[22] Russia – Measures Concerning Traffic in Transit (n 37); Saudi Arabia – Measures Concerning the Protection of Intellectual Property Rights (n 38), (not adopted) here the defence was based on Article 73(b) (iii) of the TRIPS.

[23]The United States invoked self-judging nature of Article XXI acting as a third party in Saudi Arabia – Measures Concerning the Protection of Intellectual Property Rights (n 19) 7.238., but the panel has not assessed it in details as the parties to the disputes had different view.

[24] Economic and Social Council of the United Nations, THIRTY-THIRD MEETING OF COMMISSION A HELD ON THURSDAY, 24 JULY 1947, at 2.50 P.M. IN THE PALAIS DES NATIONS, GENEVA. (No E/PC/T/A/PV/33) 19 <https://docs.wto.org/gattdocs/q/UN/EPCT/APV-33.PDF>.

[25] Hannes L Schloemann and Stefan Ohlhoff, ‘“Constitutionalization” and Dispute Settlement in the WTO: National Security as an Issue of Competence’ (1999) 93(2) The American Journal of International Law 424, 451 (‘“Constitutionalization” and Dispute Settlement in the WTO’).

[26] In the relative long history of the GATT era there were only 7 cases where Article XXI was invoked as the defence (see: Ji Yeong Yoo and Dukgeun Ahn, ‘Security Exceptions in the WTO System: Bridge or Bottle-Neck for Trade and Security? Section 2’ (2016) 19(2) Journal of International Economic Law 417, 430–431 (‘Security Exceptions in the WTO System’). Now, in the last 5 years 10 cases concern the measures adopted only by the United States (including the Unites States – Origin Marking Requirements and encompassing all cases concerning United States — Certain Measures on Steel and Aluminium Products). The other cases known to the author’s best knowledge are Russia – Measures Concerning Traffic in Transit and Saudi Arabia – Measures concerning the Protection of Intellectual Property Rights.

[27] Voon Tania, ‘Testing the Limits of WTO Security Exceptions’ (14 June 2023) East Asia Forum <https://www.eastasiaforum.org/2023/06/14/testing-the-limits-of-security-exceptions/>.

[28] United States – Origin Marking Requirement (n 1) 7.27.-7.28.

[29] Russia – Measures Concerning Traffic in Transit (n 18) 7.65.-7.68.; United States – Certain Measures on Steel and Aluminium Products (China) [2022] Report of the panel WT/DS544/R, 7.121.

[30] United States – Origin Marking Requirement (n 1) 7.34.-7.90.; indeed, the self-judging elements in international treaties as exceptions from states’ undertakings cannot be presumed and have to be interpreted carefully in accordance with the VCLT (see: Schill and Briese (n 63) 69).

[31] Given that the scholars who analysed the nature of the security exception were “sharply” divided as to its self—judging nature, but the previous state’s practice inclined to the conclusions that this clause is rather of self-judging nature (see: Roger P Alford, ‘The Self-Judging WTO Security Exception’ (3) UTAH LAW REVIEW 697, 704–708.; Schill and Briese (n 30) 98–110.; Yoo and Ahn (n 26) 426–430.

[32] ‘The World Trade Organization: The Appellate Body Crisis | Scholl Chair in International Business | CSIS’ <https://www.csis.org/programs/scholl-chair-international-business/world-trade-organization-appellate-body-crisis> (‘The World Trade Organization’).

[33] ‘Report on the Appellate Body of the World Trade Organization’, United States Trade Representative (February 2020) <http://ustr.gov/about-us/policy-offices/press-office/press-releases/2020/february/ustr-issues-report-wto-appellate-body>.

[34] Tania Voon, ‘The Security Exception in Wto Law: Entering a New Era’ (2019) 113 AJIL Unbound 45, 48 (‘The Security Exception in Wto Law’).

[35] Geraldo Vidigal, ‘WTO Adjudication and the Security Exception: Something Old, Something New, Something Borrowed &#150; Something Blue?’ (2019) 46(3) Legal Issues of Economic Integration 206 <https://kluwerlawonline.com/api/Product/CitationPDFURL?file=Journals\LEIE\LEIE2019013.pdf> (‘WTO Adjudication and the Security Exception’).

[36] Schloemann and Ohlhoff (n 25) 441.

[37]United States – Certain Measures on Steel and Aluminium Products (China) (n 29) 7.121.-7.128.; United States – Certain Measures on Steel and Aluminium Products (Norway) [2022] Report of the panel WT/DS552/R, 7.109.-7.116.; United States – Certain Measures on Steel and Aluminium Products (Turkey) [2022] Report of the panel WT/DS564/R, 7.134.-7.143.; United States – Certain Measures on Steel and Aluminium Products (Switzerland) [2022] Report of the panel WT/DS556/R, 7.137.-7.146.

[38] Which were followed to the highest extent by the panel in Saudi Arabia – Measures Concerning the Protection of Intellectual Property Rights (n 19) 7.256.-7.270.

[39] United States – Origin Marking Requirement (n 1) 7.289.

[40] Ibid 7.301.

[41] Ibid 7.280.; 7.307.

[42] See also: United States – Certain Measures on Steel and Aluminium Products (China) (n 29) 7.139. and other related “steel and aluminium” cases (n 36)

[43] United States – Origin Marking Requirement (n 1) 7.304.

[44] Ibid 7.280.-7.281. ; 7.308.-7.309.

[45] Ibid 7.301.; Russia – Measures Concerning Traffic in Transit (n 18) 7.76.; Daria Boklan and Amrita Bahri, ‘The First WTO’s Ruling on National Security Exception: Balancing Interests or Opening Pandora’s Box?’ (2020) 19(1) World Trade Review 123, 132 (‘The First WTO’s Ruling on National Security Exception’).

[46] For example by means of a “hybrid war” involving unarmed migrants forcing the border (see: James Shotter, Sam Fleming and Ben Hall, ‘How Migration Became a Weapon in a “Hybrid War”’, Financial Times (online, 5 December 2021) <https://www.ft.com/content/83ece7e4-cc71-45b5-8db7-766066215612>).

[47] United States – Origin Marking Requirement (n 1) 7.280.; 7.307.

[48] Russia – Measures Concerning Traffic in Transit (n 18) 7.76., 7.111.

[49] Noteworthy, it is hard to find any explanation for this finding in Russia – Measures Concerning Traffic in Transit.

[50] United States – Origin Marking Requirement (n 1) 7.280.

[51] Ellen Ioanes, ‘Niger’s Coup and the International Community’s Opposition, Explained’, Vox (29 July 2023) <https://www.vox.com/world-politics/2023/7/29/23812389/niger-coup-africa-ecowas-tchiani-bazoum>.

[52] United States – Origin Marking Requirement (n 1) 7.354.

[53] ‘Communication from Hong Kong to the World Trade Organization, 3 June 1997, WT/L/218’ <https://docs.wto.org/dol2fe/stronas/SS/directdoc.aspx?filename=Q:/WT/L/218.pdf>.

[54] United States – Origin Marking Requirement (n 1) 7.280.

[55] The relation between the two does not seem to be “purely domestic or national affair”- see:United States – Certain Measures on Steel and Aluminium Products (China) (n 29) 7.137.

[56] United States – Origin Marking Requirement (n 1) 7.330., 7.335., 7.345., 7.351-7.352.

[57] The test is well described by G. Vidigal in Vidigal (n 35) 215. See also more detailed analysis on the standard of review under XXI (b) of the GATT 1994 in accordance with the principle of good faith: Schill and Briese (n 30) 66, 107–110; Russia – Measures Concerning Traffic in Transit (n 18) 7.139, see also ibid. 7.145.