The National Security Provision—GATT Article XXI

  • Alan S. Alexandroff
  • Rajeev Sharma


The Contracting Parties to the General Agreement on Tariffs and Trade (“GATT”) understood that they might need to take independent security and defense policy measures that would be exempted from the general legal obligations contained in the GATT. This exception to the GATT rules is contained in Article XXI titled “Security Exceptions” (“Article XXI”).1


National Security Dispute Settlement Contracting Parti Security Interest Dispute Settlement System 
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  1. 2.
    Raj Bhala, National Security and International Trade Law: What the GATT says, and What the United States Does, 19(2) U. Pa. J. Int’l Econ. L. 263, 273 (1998). See also Raj Bhala and Kevin Kennedy, World Trade Law 154–57(1998) and in particular 1999 Supplement at 220–231(“Bhala and Kennedy”).Google Scholar
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    17–1, with 3 abstentions and 2 absent. See BISD (Volume II) at 28 (1949).Google Scholar
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    However, the President was authorized to waive application of Title III for six-month periods. On July 16, 1996, President Clinton suspended the right of U.S. citizens to file suit under Title III, and the waiver has been renewed at six-month intervals ever since.Google Scholar
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    Executives of three companies and their families were banned from entering the United States pursuant to Title IV: Grupos Domos, a Mexican telecommunications company, Sherritt International, a Canadian mining company, and BM Group, an Israeli citrus company. Grupos Domos disinvested in the Cuban property at issue in 1997 and the ban was lifted. Visa exclusion for officials from an Italian telecommunications company, STET, was averted when STET agreed to pay US-based ITT Corporation $25 million for the use of ITT-claimed property in Cuba for a ten-year period. In addition, the U.S. State Department has investigated the Spanish hotel Sol Melia that apparently had invested in Cuban property that was confiscated from U.S. citizens in 1961, though there is no confirmation that the US State Department has denied visas to officials of that company. See State Department. Official Promises Strict Enforcement of Helms-Burton, Inside US Trade, (April 13, 2001) and Overview and Compilation of US Trade Statutes, 2001 Edition, COMMITTEE ON WAYS AND MEANS, US HOUSE OF REPRESENTATIVES 219(June 2001).Google Scholar
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    See EU Request for Consultations, United States—The Cuban Liberty and Democratic Solidarity Act, WT/DS38/1(May 13, 1996). Canada and Mexico joined the case as third parties.Google Scholar
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    However, European officials suggested that the case could be distinguished from Nicaragua II on the basis that that case involved a primary boycott, whereas Helms-Burton created a secondary boycott. See, e.g., Paeman Raises Possible WTO Challenge to National Security Measures, Inside Us Trade (March 29, 1996).Google Scholar
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    Kees Jan Kuilwijk has argued that claims to a national security exception are subject to both procedural and substantive review. See Kees Jan Kuilwijk, Castro’s Cuba and the U.S. Helms-Burton Act: An Interpretation of the GATT Security Exemption, 31(3) Journal of World Trade 49(1997).Google Scholar

Copyright information

© Springer Science+Business Media, Inc. 2005

Authors and Affiliations

  • Alan S. Alexandroff
    • 1
    • 2
  • Rajeev Sharma
    • 3
  1. 1.Munk Centre for International StudiesUniversity of TorontoToronto
  2. 2.C.D.Howe Institute Fellow-in-Residence in International PolicyToronto
  3. 3.Heenan Blaikie LLPTorontoCanada

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