Petros C. Mavroidis has identified a major problem in how the WTO handles national security disputes. Countries are increasingly using “national security” as an excuse to break trade rules, and the WTO’s courts don’t know how to respond effectively.
When countries claim their actions are necessary for national security, WTO panels are caught in a difficult position. They want to maintain their authority to judge trade disputes, but they’re also afraid to challenge powerful countries’ security claims.
The WTO has developed what’s called a “minimally satisfactory articulation” standard. This means countries just need to provide a basic explanation for their security measures, and the WTO will usually accept it. The courts will only check when the measures were taken, not why they were really needed.
This weak approach created serious problems in the Russia-Ukraine case. Russia used Article XXI (the national security exception) to justify trade restrictions against Ukraine. The WTO panel accepted Russia’s argument that it was responding to an “emergency” – even though Russia had created that emergency by attacking Ukraine.
As Mavroidis points out, this means the aggressor can invoke national security to justify hurting its victim, which makes little moral or legal sense.
This approach has several serious problems: WTO panels look at individual trade measures in isolation, rather than seeing them as part of broader political strategies; Countries can abuse the system by simply saying the magic words (“emergency,” “essential security interests”) to get away with breaking trade rules; If the WTO can’t meaningfully review national security claims, it risks becoming irrelevant in important disputes.
Countries are treating the WTO less like a court that enforces rules and more like a stage for political theater. They make national security claims not because they’re legally justified, but because they know the WTO won’t seriously challenge them.
This undermines the entire purpose of having international trade rules in the first place.
Mavroidis and other experts suggest that national security disputes should be removed from the WTO’s court system entirely. Instead, they should be handled through diplomatic negotiations or committee discussions where political considerations can be openly addressed.
Unless the WTO finds a better way to handle national security claims, it risks losing its authority to enforce trade rules just when strong enforcement is most needed. The current system allows countries to break the rules whenever they claim “national security,” which could eventually destroy the global trading system’s credibility.