Thread by @howserob

The #WTO US-Steel & Aluminum panel report just released is very poorly reasoned & drafted on the Art. XXI issue, especially.On the safeguards issue, the panel simply accepts the municipal law characterization of the measure as national security as dispositive of ... 1/x

2/x it being taken pursuant to XXI. Big mistake-ntl security under municipal law may, first, be a basis for taking a measure that is non-discriminatory (III:4 e.g.) & thus not pursuant to any exception; second, elements of "national" security may well be included in public order

3/x aspect of Art. XX (a), public morals, or XX (d) might also be an applicable exception. In sum, merely because basis in municipal law is a statute concerning *national* security Member not locked into invoking XXI. But the worst botch of this panel report is on "essential

4/x security interests" and "taken in time of war or other emergency in international relations." The panel assumed that for XXI (b) to apply the "emergency in intl relations" has to be the reason *why* the measure engages "essential security interests." Thus, the panel

5/x found that overcapacity in the steel & aluminum industries did not have the gravity of an "emergency in international relations." That was a not unreasonable finding. *But* it also is a misrepresentation of why overcapacity mattered. The "essential security interests" here

6/x were having sufficient domestic production capability to produce adequate self-reliance for military and stratgic reasons. Overcapacity was what was (alledgedly) impairing that. But correctly applying the Russia-Transit framework for Art. XXI, the panel should be deferential

7/x on how a Member sees its "essential security interests" and therefore what affects them. What the panel needed to determine objectively was whether when the measures were taken it was a time of war & international relations. This was obviously not about overcapacity

8/9 in steel & aluminum but whether the proliferation of geopolitical tensions at the time, the intensification of rivalry & conflict between major powers for instance, constituted an emergency in international relations.Panel never reached the essential matter. The panel cited

9/9 a range of US documents referring to the seriousness or critical nature of the overcapacity situation to make it appear like the "emergency in international relations" to be established on an objective basis was overcapacity. But that's simply wrong here.