Russia – Traffic in Transit: A Landmark Case Undermining the Role of WTO Security Exceptions Amidst Trade and Hybrid Wars

Анотація

This article explores the relationship between trade and hybrid warfare conducted by state actors in the context of the Russia-Ukraine war before Russia’s full-scale invasion in 2022 and the US-China trade war. It analyzes recent WTO case-law, notably the landmark case Russia – Traffic in Transit, where justification under GATT Art. XXI was successfully invoked by Russia – a WTO member that launched armed aggression against its neighbor, resorting to occupation and annexation of Ukraine’s territories. Panel’s application of a two-tier test in this case is put into question as Russia has neither explained what constituted an emergency in international relations nor articulated its essential security interests. The analysis addresses how Russia employed trade war tactics as part of its arsenal in the realm of hybrid warfare, subsequently escalating to a full-scale aggression against Ukraine, triggering the largest continental war in Europe since WWII. However, the article recognizes the balanced nature of the GATT Art. XXI interpretation, requiring the Panel to assess whether the measures were “taken in time of war or other emergency in international relations,” and also to identify whether the invoking member acted in good faith when establishing the connection between the measures and its essential security interests. If applied correctly, this interpretation should not encourage further trade wars.

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