The US has recently shown an increased willingness to raise ‘national security’ to restrain imports. Given past reliance on that principle to affect foreign crude oil imports, another decline in the world market price of crude, like that experienced in the aftermath of the recent financial collapse, could lead to ‘national security’ being again invoked to provide protection to US domestic crude oil producers. As the US currently has no GATT article II tariff ‘binding’ on crude oil imports, it has great latitude with respect to using ordinary customs duties to restrain imports. However, any claim that GATT Article XXI(b)’s ‘national security’ exception permits an entirely ‘self-judging’ basis for restraints on crude oil (or even non-energy products) would seem troublesome for at least four reasons. Each reason is explored with relevant reference to Article XXI(b)’s text, context, negotiating history, and GATT/WTO decisional and administrative processes. Irrespective of the use of such standard tools of interpretation, interpretive exercises necessarily yield a product coloured by one’s perspective. Currently, there seems reason to believe the Trump Administration views unilateralism as preferable to reliance on multilateral processes and institutions and, thus, may argue Article XXI(b) requires total deference when ‘national security’ is invoked.
Journal of World Trade