Weaponised Trade and the WTO

Introduction: Weaponised Trade and the WTO

In view of the intensifying technological rivalry between the United States and China, this study investigates whether Article XXI of the General Agreement on Tariffs and Trade (GATT), the World Trade Organization’s national security exemption, can effectively constrain state action. The fundamental ambiguity of Article XXI, which was drafted in 1947 around conventional military items, is whether a member’s invocation of “essential security interests” is self-judging or susceptible to independent scrutiny. For almost seventy years, this ambiguity remained mainly untested. This was altered in 2019 when a WTO panel on Measures Concerning Traffic in Transit in Russia decided, for the first time, that the presence of a qualifying security emergency is an objective question that can be reviewed, even if a member retains discretion over its preferred response. This ruling was affirmed in Saudi Arabia Measures Regarding the Protection of Intellectual Property Rights. In a series of panel decisions in 2022, it was then applied to US steel and aluminium tariffs.

This article proposes that a parallel institutional crisis-the WTO Appellate Body’s collapse since December 2019, which permits a losing party to suspend the legal force of an adverse ruling indefinitely by appealing to a body that cannot hear the case- has rendered this doctrinal evolution essentially inert. In every Article XXI legal action it has lost, the United States has used this approach, and the underlying measures remain in effect despite unfavourable decisions. This research also illustrates how general-purpose, primarily civilian-use technologies expose the underlying limitations of a provision intended around identified military items, using the ongoing US-China debate over semiconductor restrictions on exports as a case study. It comes to the conclusion that Article XXI is currently a rule in form but not in operation, doctrinally bound on paper but essentially inflexible in the absence of an effective enforcement mechanism. These results cast doubt on the credibility of WTO dispute resolution and increase the likelihood that this pattern of invocation without repercussions will spread far beyond the security exception.

China was cut off from the advanced chips, chip-making equipment, and related technologies needed to be competitive in artificial intelligence, supercomputing, and next-generation military systems when the United States imposed the most severe semiconductor export restrictions in its history in October 2022 (Scott & Feng, 2022). China stated that these actions violated multiple GATT, TRIMS, TRIPS, and GATS rules in a formal complaint it submitted with the World Trade Organisation two months later (WTO, 2022). The United States’ response was quick and popular: it acknowledged consultations but insisted that the measures addressed “issues of national security not susceptible to review or capable of resolution by WTO dispute settlement” (WTO, 2022). This is the same justiciability objection that the United States has made in every Article XXI dispute since 1985, but with slightly different wording.

This action is at the core of a legal dilemma with consequences that go far beyond any specific trade dispute. A member may take “any action which it considers necessary for the protection of its essential security interests,” including actions of weapons, ammunition, and implements of war, as well as actions taken in times of war or other emergencies in international relations, under Article XXI of the GATT, the WTO’s national security exception (GATT, 1994, art. XXI). The clause, which was drafted in 1947 with conventional military goods in mind, left open a question that would go unanswered for almost 70 years: does this clause grant a member’s security determination unreviewable, self-judging discretion, or does it allow for independent scrutiny by WTO adjudicators? This question was addressed for the first time in the 2019 panel finding in Russia – Measures Concerning Traffic in Transit, which held that the existence of a qualifying emergency is an objective matter subject to examination, even though a member’s chosen approach continued to be discretionary. In 2022, this ruling was affirmed in Saudi Arabia’s Measures Concerning the Protection of Intellectual Property Rights and applied, with major implications, to the US Section 232 steel and aluminium tariffs.

Even so, this doctrinal change was accompanied by the collapse of the WTO Appellate Body, a clear and, as this essay contends, significant institutional failure. A losing party may permanently suspend the legal force of an adverse panel ruling due to the Appellate Body’s lack of members since December 2019 by submitting a notice of appeal into what practitioners have called “the void.” Years after the review panels found that the United States’ steel and aluminium tariffs violate WTO law, the country has continued to employ this option in every Article XXI case it has lost. The article makes a point that, when considered collectively, these two incidents demonstrate that Article XXI is a legislation that is still in existence but no longer effectively limits the actions of the government. Although WTO panel jurisprudence since Russia-Traffic in Transit has established that Article XXI is subject to at least partial objective review, the unresolved US-China semiconductor dispute is a particularly clear example of how the Appellate Body’s collapse has rendered this doctrinal shift practically inert.

The boundaries of a provision based on the presumption that a good’s military purpose can be easily identified are exposed by general-purpose semiconductors, primarily civilian-use goods with no fixed military end use. Even an unambiguous panel ruling on this issue is unlikely to change US policy because there is no legally binding enforcement mechanism.

Understanding GATT Article XXI

Structurally, Article XXI opens with a chapeau, followed by three enumerated categories of permissible state action. Under the chapeau, a member state may take “any action which it considers necessary for the protection of its essential security interests,” notwithstanding its other obligations under the Agreement (GATT, 1994, art. XXI). Subsection (a) addresses the narrow matter of withholding information contrary to a state’s essential security interests, while subsection (b) sets out three more substantive grounds: action relating to fissionable materials (art. XXI(b)(i))action relating to traffic in arms, ammunition, and implements of war, or to the supply of goods and materials to a military establishment (art. XXI(b)(ii)); and action taken in time of war or other emergency in international relations (art. XXI(b)(iii)). Subsection (c), meanwhile, permits action taken pursuant to a state’s obligations under the United Nations

Charter concerning the maintenance of international peace and security (GATT, 1994, article XXI(c)). Among these grounds, it is subsections (b)(ii) and (b)(iii) that have generated the greatest controversy in state practice, since both require some assessment of whether a measure genuinely relates to military supply or reflects a qualifying emergency. This question sits at the very centre of the self-judging debate taken up in the following section (Alford, 2011).

A single interpretation dilemma at the core of Article XXI has led to decades of legal ambiguity: what does it mean for a state to take measures “which it considers necessary”? In response, two opposing interpretations have surfaced. The first, known as the “self-judging” interpretation, maintains that this clause completely exempts the provision from WTO adjudication by giving the invoking state exclusive and unreviewable discretion to decide whether a qualifying security interest exists and whether its response is appropriate (Alford, 2011). According to this perspective, no panel, member state, or other WTO entity has the power to question a state’s security assessment, no matter how unlikely it might seem. This view is rejected by the second interpretation, which contends that although a state’s choice of measure may be within its discretion. Whether there is a true security concern or an “emergency in international relations” is still an objective question that may be independently reviewed. A fully self-judging interpretation of Article XXI would create a “black hole” through which any protectionist measure might be justified simply by citing the language of national security, according to proponents of this viewpoint, endangering the coherence of the entire GATT/WTO system (Bahri, 2019). The rest of this paper focuses on this unresolved conflict between multilateral accountability and sovereign discretion.

This interpretation ambiguity may have led to major litigation, but throughout the GATT era, Article XXI was mainly untested. Between 1948 and 1994, the clause was rarely invoked. When it did come up in a dispute, panels would not rule on the underlying self-judging problem, and parties would frequently choose to let the procedures continue rather than seek a final ruling. For instance, in the 1996 Helms-Burton Act dispute between the United States and the European Communities, the parties asked the panel to completely halt its work, and the issue was never properly decided (Murrill, 2018). As a result, before 2019, neither the WTO as a whole nor any WTO panel had explicitly interpreted Article XXI to define its scope (Murrill, 2018). This long period of silence resulted in what could be called a tacit truce: member states avoided testing the limits of the provision and, consequently, avoided any real risk that a panel would provide an answer they might not like. It was more indicative of a shared reluctance among states to invite scrutiny of their own security determinations.

The Jurisprudential Turn: From Silence to Scrutiny

Pre-2019 era: US – Nicaragua

In United States Trade Measures Affecting Nicaragua (1986), a GATT panel challenged a US trade embargo against Nicaragua that was justified by Article XXI(b)(iii). This was the first and most notable example of pre-2019 panel avoidance. The panel declined to determine whether the United States was in compliance with or in violation of its obligations under the General Agreement after explicitly concluding that it was “not authorised to examine the justification for the United States’ invocation” of the exception (GATT Panel Report, 1986, para. 5.1-5.3). Regardless of how unlikely the underlying security claim may be, the panel deemed the substantive investigation closed once a state asserted Article XXI, thereby treating the invocation itself as dispositive. Notably, the United States had warned throughout the proceedings that GATT dispute settlement procedures were essentially “ill-suited” to settle disputes involving Article XXI. This position would recur, essentially unaltered, in the United States’ subsequent defence of its Section 232 tariffs decades later (GATT Panel Report, 1986). For the remainder of the GATT era, this deferential approach was the closest thing to established practice because the Nicaragua panel report was never formally adopted and no other GATT-era panel significantly addressed its logic.

Russia – Traffic in Transit: A Turning Point

Russia-Measures Concerning Traffic in Transit (2019), the first WTO panel report to rule on the merits of an Article XXI defence rather than avoid it, was a true turning point. The conflict started when Russia restricted the transit of Ukrainian goods across Russian territory headed for Kazakhstan and the Kyrgyz Republic, citing the political breakup with Ukraine after 2014. Ukraine contested these restrictions, arguing that they violated Russia’s transit obligations under GATT Article V (WTO, 2019). Rather than declining jurisdiction, the panel held that while the specific choice of measure remained within a member’s discretion, the existence of an “emergency in international relations” was an objective state of affairs capable of independent review, reasoning that any other interpretation would deprive Article XXI(b)(iii) of meaningful legal effect (Voon, 2019). The panel further found that a member who invokes the exception must fulfilll a good faith responsibility, which requires it to define its essential security interests with enough plausibility to show a true connection between the measures taken and the emergency invoked (QIL-QDI, 2019).  Using this criterion, the panel concluded that the 2014 break in ties between Russia and Ukraine met the criteria for a qualifying emergency, and as a result, Russia’s actions were maintained (WTO, 2019). Although Russia won the case, the panel’s reasoning represented a significant doctrinal shift: for the first time, a WTO adjudicator has claimed the right to consider a member’s security invocation rather than considering it as conclusive.

Saudi Arabia – IPR and the Reinforcement of Article XXI Review

The reasoning in Russia -Traffic in Transit was tested again, and largely reaffirmed, in Saudi Arabia Measures Concerning the Protection of Intellectual Property Rights (2020). That dispute arose from the 2017 severance of diplomatic, consular, and economic relations between Saudi Arabia and several Gulf states on one side and Qatar on the other, during which a Qatari broadcasting company’s intellectual property rights were allegedly infringed by a Saudi-based entity (WTO, 2020). Saudi Arabia invoked the national security exception under TRIPS Article 73(b)(iii) worded identically to GATT Article XXI(b)(iii) and notably refused to directly interact with Qatar throughout the proceedings, treating the dispute itself as inconsistent with its severance of relations (WTO, 2020). Because the security exception language in Article 73 mirrors Article XXI precisely, the panel expressly imported the Russia – Traffic in Transit framework, holding that it retained jurisdiction to assess whether the diplomatic rupture with Qatar objectively qualified as an “emergency in international relations” (ASIL, 2020). The panel found that it did, but went on to hold that not every measure Saudi Arabia attributed to that emergency actually satisfied the “necessity” requirement in particular, Saudi Arabia’s failure to provide criminal penalties against a pirate broadcaster was found not to be genuinely connected to its stated security interests (WTO, 2020). This distinction matters: Saudi Arabia–IPR confirmed that objective review under the Russia framework was not a one-off, case-specific outcome but could produce findings against the invoking state on individual measures, even while accepting the broader emergency as genuine.

The United States directly and continuously opposed this doctrine change US steel and aluminium tariffs imposed under Section 232 of the Trade Expansion Act of 1962, which the US has defended under Article XXI(b)(iii), were challenged by several WTO members starting in 2018, including China, Norway, Switzerland, Turkey, and India (Lexology, 2022). The United States maintained throughout these proceedings that its use of the security exception was wholly non-justiciable, arguing that the self-judging nature of Article XXI represented a deliberate choice made by GATT’s original drafters and that panels lacked the authority to assess the validity of a member’s security determination (WITA, 2020).On December 9, 2022, panels in four of these disputes published reports that rejected this stance, concluding that the US tariffs were unjustified under Article XXI and violated GATT requirements (Lexology, 2022). The US reaction was swift and categorical: the Office of the US Trade Representative declared its intention to file an appeal, referred to the panels’ logic as a “flawed interpretation,” and reiterated that the US had maintained “for over 70 years” that national security decisions cannot be reviewed in WTO dispute settlement (Johnson, 2022). This is a crucial point because, as the following section shows, the US understood exactly what would happen if they appealed these decisions.

When combined, these cases show a distinct doctrinal path. Russia-Traffic in Transit and Saudi Arabia-IPR demonstrated that the underlying factual predicate for such an invocation is subject to objective, good-faith assessment by WTO panels, whereas US-Nicaragua considered a bare invocation of Article XXI as effectively unreviewable. By 2022, this logic had developed into a body of consistent panel practice that had been used repeatedly against one of the most influential members of the WTO. Despite this, the limitations of this doctrinal advancement are demonstrated by the Section 232 disputes.The United States rejected the panels’ logic outright and reaffirmed a position it had maintained since the GATT’s founding. This discrepancy between what the world’s largest single-country importer is ready to accept and what tribunals have stated the law requires reveals a deeper structural issue that cannot be fixed by theory alone. The analysis now focuses on this issue, which has its roots in institutional design rather than legal interpretation.

The Institutional Collapse: Why the Doctrine Doesn’t Matter

The WTO Appellate Body crisis 

Since 2019, a parallel institutional crisis substantially altered the practical stakes of every WTO rule, making it impossible to fully understand the doctrinal advancement described in the previous section. A first-instance panel and an Appellate Body with the authority to review panel decisions on appeal make up the two tiers of the WTO’s dispute resolution process. As the mandates of current members of the Appellate Body came to an end in 2017. the United States began preventing any new appointments and claiming that the body had overreached its judicial authority and gone beyond its interpretive scope under the WTO agreements (Lehne, 2019). Because the Appellate Body requires a minimum of three sitting members to hear any appeal, this blockade steadily depleted its ranks until, on December 10, 2019. its membership fell below that threshold, and it ceased to function entirely (European Parliament, 2019). Despite sustained diplomatic efforts, including the informal process facilitated by New Zealand’s Ambassador David Walker, to resolve US objections and restore appointments, the Appellate Body has not heard a single appeal since 2019 (European Parliament, 2019; Hopewell, 2025). The collapse of the only body capable of finally resolving a WTO dispute on appeal.

This institutional vacancy created a procedural gap with consequences, one that practitioners and scholars have termed “appeals into the void.” A panel report is not legally binding on the parties under WTO dispute settlement procedures until the appeal window has ended or any appeals have been settled. Crucially, whether or not an appeal may be heard, the act of submitting a notice of appeal is enough to halt the legal impact of a panel report (Hopewell, 2025). Because the Appellate Body no longer has the members necessary to hear any appeal, a losing party can file a formal notice of appeal knowing full well that it will never be adjudicated, thereby indefinitely suspending its obligation to comply with an adverse ruling (Payosova et al., cited in Hopewell, 2025). Empirical tracking of WTO dispute practice confirms this is no longer a marginal or hypothetical risk. In the years following the Appellate Body’s collapse, the overwhelming majority of appealed panel reports have been appealed into the void, and the practice has been adopted not only by the United States but by a growing number of WTO members more broadly (Hopewell, 2025). A minority of members have sought to circumvent this problem through the Multi-Party Interim Appeal Arbitration Arrangement (MPIA). A voluntary alternative appeals mechanism agreed among a subset of WTO participants, but participation remains limited, and neither the United States nor China, the two parties most central to the dispute examined in this paper, is a member of it (Svetlicinii & Su, 2024).

The Section 232 disputes examined in the preceding section provide a direct and concrete illustration of this dynamic in action. Rather than accept the December 2022 panel findings against its steel and aluminium tariffs, the United States formally notified the WTO Dispute Settlement Body in January 2023 of its intention to appeal, while simultaneously announcing that it would pursue an “authoritative interpretation” of Article XXI through the WTO’s political rulemaking process instead (Wiley, 2023). Because no functioning Appellate Body existed to hear this appeal. the notice itself was sufficient to suspend the panel reports’ legal effect indefinitely, with no prospect of final resolution (Paulsen, 2023). The practical ramifications are striking WTO panels, using the objective-review framework created in Russia-Traffic in Transit, have now repeatedly determined that US national security invocations under Article XXI did not meet the standard the panels themselves articulated. But the United States has not faced any legally binding effects on these findings, and its Section 232 tariffs have remained in effect, unaltered, in the years since (Wiley, 2023). The legislation changed, but compliance did not follow because the institutional framework needed to enforce it is no longer in place.

When considered collectively, these occurrences force this study to reach a certain and important conclusion. Although legally legitimate, Russia-Traffic in Transit’s doctrinal shift is essentially meaningless. WTO panels have unequivocally determined that the invocation of Article XXI is subject to judicial examination as a matter of treaty interpretation. This methodology has been implemented with genuine analytical rigor in both Section 232 and Saudi Arabia-IPR issues. However, international law study has long acknowledged that a rule’s ability to really restrain state behaviour in practice differs conceptually from its binding nature on paper, especially in situations where formal enforcement mechanisms are weak or non-existent (Guzman, 2002). Article XXI provides an exceptionally clear illustration of this distinction. For continuing to operate as though the self-judging stance it has maintained “for over 70 years” is still sound legislation, the very state whose actions have most often been found to be in violation of the provision as defined by WTO panels has not faced any legally binding consequences (Johnson, 2022). As a result, the rule now exists in two parallel and increasingly different registers: a behavioural register where it operates exactly as it did before 2019, as an unreviewable license restricted only by a state’s own restraint, and a jurisprudential register where Article XXI is a reviewable, disciplined legal standard. This discrepancy between theory and consequence poses a greater threat to Article XXI’s existence than any lingering uncertainty in the text itself.

Case Study: The US-China Semiconductor Dispute

On October 7, 2022, the US Department of Commerce’s Bureau of Industry and Security announced a sweeping set of export control regulations. That restricting the export to China of advanced computing semiconductors, semiconductor manufacturing equipment, and supercomputer components, along with related software and technology (Scott & Feng, 2022). Unlike previous, more targeted restrictions aimed at specific Chinese firms, these measures were unusually broad in scope. That is effectively cutting off Chinese access to the tools and inputs necessary to design and manufacture cutting-edge chips, regardless of end user (Kharpal, 2022). US officials justified the measures explicitly on national security grounds. It is stated  with Assistant Secretary of Commerce Thea Kendler that “U.S. national security interests require that we act decisively to deny access to advanced technologies” (Scott & Feng, 2022). On December 12, 2022, China formally requested WTO consultations with the United States over these measures, initiating United States Measures on Certain Semiconductor and Other Products, and Related Services and Technologies (WT/DS615), and alleging inconsistency with Articles I:1, X:1, X:3, and XI:1 of the GATT 1994, Article 2 of the TRIMS Agreement, Article 28 of TRIPS, and Article VI of GATS (WTO, 2022; USTR, 2023). China’s Ministry of Commerce accused the United States of “abusing export control measures” and warned that the restrictions “threatened the stability of the global industrial supply chain” (Scott & Feng, 2022). The United States accepted China’s request for consultations while explicitly reserving its position that the underlying measures concerned “issues of national security not susceptible to review or capable of resolution by WTO dispute settlement” restating, in near-identical language, the justiciability objection it had raised in every Article XXI dispute since Nicaragua (WTO, 2022).

Semiconductors dual-use test

The semiconductor dispute exposes a structural weakness in Article XXI that the drafters of 1947 could not have anticipated. Subparagraph (b)(ii) was designed around a “purpose test” permitting trade restrictions on arms, ammunition, and implements of war, or on goods and materials supplied for a military establishment a formulation that presupposes a good can be sorted, with reasonable confidence, into either a civilian or military channel of end use (GATT, 1994, art. XXI(b)(ii)). Recent scholarship has termed this the “unsettled governance of dual-use items,”. This observes that semiconductors represent a paradigm case in which this binary sorting exercise breaks down entirely.  A missile guidance system, an AI research cluster, and a civilian smartphone may all be powered by the same cutting-edge chip at the same time, and it would be impossible to identify a single “purpose” for its export (Svetlicinii & Su, 2024). In defence of its stance, the US has described semiconductors as “game-changing dual-use technologies that serve China’s military modernisation.” Instead of requiring an individualised purpose investigation as the treaty language considers, a framing that implies an entire product category can be viewed as intrinsically military-adjacent (Svetlicinii & Su, 2024). Instead of limiting designated items intended for identified military end uses, this action essentially reverses the reasoning of subparagraph (b)(ii). The United States has restricted an entire technological ecosystem based on its theoretical capacity to eventually contribute to military applications. This “anticipatory” application of the security exception regulating a technology’s potential future military relevance rather than a good’s current military destination creates precisely the kind of open-ended discretion that the Russia Traffic in Transit framework was designed to constrain, according to legal commentary on related dual-use sectors, including quantum computing. This is because almost any advanced or emerging technology could plausibly be framed as having some future military application (The Regulatory Review, 2025).

The procedural history of DS615 itself illustrates the practical stakes of the justiciability question explored in Section IV, quite apart from its eventual outcome. Following China’s initial December 2022 request, the dispute did not proceed swiftly toward adjudication. Rather, China submitted a revised and expanded request for consultations in February 2023. followed by supplementary communications in September 2023 and December 2024. Broadening the scope of challenged measures as the United States continued to layer additional restrictions onto its export control regime (WTO, 2024). At each stage, the United States accepted China’s requests to consult while explicitly and consistently preserving its objection that the underlying measures “concerned issues of national security not susceptible to review or capable of resolution by WTO dispute settlement”. The identical justiciability position was asserted in Nicaragua, in the Section 232 disputes, and now here (WTO, 2024). As of this writing, more than three years after China’s initial filing, the dispute remains at the consultation stage, with no panel yet established (WTO, 2024). This is an essential component of data in and of itself even putting aside the question of what would happen to a panel ruling once it was appealed into the void. The dispute has not progressed far enough to directly test that mechanism. It shows the extent to which the incentive structure established by the Appellate Body’s collapse has diminished the urgency of WTO adjudication itself.  The US Trade Office representative initiated a Section 301 investigation into China’s semiconductor industry was self-initiated by the representative. procedures in December 2024, leading to a formal notice of action in December 2025. The WTO framework does not include any unilateral trade enforcement mechanisms. Pursued concurrently with the international system as opposed to through it (Federal Register, 2025).

For this dispute, the approach presented in Part IV produces a precise, verifiable forecast. It is unlikely that US export control policy would change much even in the event of a totally victorious panel decision against the US in DS615. In this case, the Section 232 precedent is immediately instructive. The United States immediately filed an appeal after panels ruled against its steel and aluminium tariffs in December 2022.  The panel reports “will stay in the legal void,” with the underlying US tariffs still fully in effect, since the Appellate Body was unable to consider that appeal (CSIS, 2024). Crucially, this relationship has shown itself to be reciprocal as opposed to one-way. China also appealed that report into the void after a different tribunal decided in favor of the United States over China’s retaliatory tariffs. As a result, both parties were officially “winning” disputes that neither is legally obligated to address (CSIS, 2024). “In a system that is designed around reciprocity, where one member does not abide by WTO rules, another is likely to do the same,” as one analyst puts it clearly. A situation that gives the US no motivation to handle a subsequent DS615 decision any differently (CSIS, 2024). “In a system that is designed around reciprocity, where one member does not abide by WTO rules, another is likely to do the same,” as one analyst puts it clearly. A situation that gives the US no motivation to handle a subsequent DS615 decision any differently (CSIS, 2024). Applying this pattern directly, if the semiconductor dispute ultimately results in a panel report that is unfavourable to the United States, the same procedural pathway remains fully available: a notice of appeal, filed into an Appellate Body that is unable to hear it, suspends the ruling’s legal force indefinitely, just as it did in the steel and aluminium disputes. To date, there has been no indication in the DS615 proceedings that the United States views this road as anything other than a practical and accessible choice. The non-justiciability argument first put forward in 1985 has remained constant in its position papers throughout the consultations. Therefore, the semiconductor controversy does more than just point to the potential for a hollow verdict. Since the Appellate Body’s demise, the United States has successfully and consistently avoided complying with unfavourable Article XXI decisions, which fits neatly into a well-established institutional pattern.

Implications: What This Means for the WTO

The idea that unfavourable decisions will be upheld, although not always, is ultimately what gives a dispute settlement system its authority. The credibility cost is unlikely to be contained when that expectation fails for one of the most important WTO rules. A recent policy analysis notes that in a system “designed around reciprocity, where one member does not abide by WTO rules, another is likely to do the same” (CSIS, 2024). This is supported by the evidence. Appealing to the void is no longer a strategy unique to the United States. Despite the Appellate Body’s inability to hear their appeals, WTO members such as the European Union, Russia, China, India, Brazil, and Korea have all filed appeals, indicating that non-compliance, once normalised by a powerful member, becomes a reasonable tactic for any member facing a negative ruling (Wolff, cited in PIIE, 2022).

Spillover Risk

Given the scope of Article XXI’s language, this dynamic presents a unique risk. If the United States can successfully shield broad, economy-wide technology restrictions from binding review by citing national security and appealing into the void, other members will still have an easy way to do the same for a variety of trade-restrictive measures that are not just related to technology and are not exclusive to the United States. The issue is not just theoretical. Since then, the same self-judging defence that was rejected in Russia Traffic in Transit has been used. With only slight variation, in disputes as geographically and substantively diverse as the Gulf blockade, US steel and aluminium tariffs, and now US semiconductor controls, indicating an expanding rather than narrowing pattern of invocation (WTO, 2019, 2020, 2022). If ignored, this tendency may undermine the predictability that is the fundamental value proposition of the multilateral trade system by turning Article XXI from a specific, exceptional safeguard into a general-purpose escape hatch from WTO responsibilities

Possible Institutional Consequences

Only limited remedies have been found so far in attempts to remedy the underlying Appellate Body vacancy. The Multi-Party Interim Appeal Arbitration Arrangement (MPIA), a voluntary procedure that enables participating members to settle appeals via binding arbitration under DSU Article 25 instead of the paralysed Appellate Body, has been joined by a coalition of 61 WTO members (WTO, 2026). The Director-General of the WTO has described the MPIA as a “practical, confidence-building bridge” until more extensive change. The MPIA has effectively handled a modest number of disputes and is still expanding (WTO, 2026). In other words, the MPIA does not, in theory, provide a means of resolving DS615 because neither China nor the United States, the two parties to the issue at the heart of this article, are members. The structural circumstances that have made Article XXI’s jurisprudential evolution essentially inert do not appear to be going away anytime soon absent a substantial change in the US stance.

CONCLUSION

The goal of this work was to provide an answer to a surprisingly specific topic with broad implications.

Can the growth of a geoeconomic rivalry centre upon general-purpose technology effectively withstand Article XXI of the GATT, a national security exception designed in 1947 to accommodate traditional military commodities and wartime necessity? The research presented here indicates that the answer is more problematic than a simple “yes” or “no.” Article XXI has changed in one significant way. The 2019 panel ruling in Russia Measures Concerning Traffic in Transit broke nearly seventy years of interpretive silence. Establishing for the first time that a member’s invocation of the security exception is not wholly immune from WTO review. A ruling that was later upheld in Saudi Arabia IPR was applied against the United States in the Section 232 disputes with a major analytical impact. It is evaluated only based on doctrine.  Compared to ten years ago, Article XXI is now a more reviewable and disciplined provision.

This research suggests that functional constraint and doctrinal change are not the same thing, and that the difference between the two has come to define how Article XXI operates today. Since December 2019, the WTO Appellate Body has collapsed, giving influential members a dependable way to file a notice of appeal into an institutional gap that allows unfavourable Article XXI verdicts to be suspended indefinitely without ever being formally reversed. The United States has exercised this option consistently and without material consequence. It can be seen most visibly in the steel and aluminium disputes, and there is no evidence in the procedural history of DS615, the ongoing US-China semiconductor dispute, to suggest it would behave differently should that dispute eventually produce an unfavourable ruling. If anything, the semiconductor case sharpens this problem rather than merely repeating it. By treating an entire category of general-purpose, overwhelmingly civilian technology as inherently security-relevant, the United States has extended Article XXI’s practical reach far beyond the discrete military goods its drafters contemplated.

In one important way, this analysis is inevitably tentative. The pattern outlined here may be complicated or improved by any panel report that is eventually released, as DS615 is still an ongoing, unresolved dispute. even if the fundamental enforcement mechanism doesn’t change. Monitoring the dispute’s final conclusion would be beneficial for future research. Additionally, by analysing if the European Union’s concurrent creation of its own security-adjacent trade instruments indicates the beginning of a truly global, as opposed to US-specific, pattern of security-exception overreach. This study aims to establish something more specific, but perhaps more long-lasting. that it is no longer possible to evaluate Article XXI’s survival by looking at what WTO tribunals interpret the clause to mean. It must instead be assessed by asking whether anyone is bound to listen and on the available evidence, the answer, for now, is no.

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