DS: United States — Certain Measures on Steel and Aluminium Products

This dispute concerns duties and related measures imposed by the United States on steel and aluminium imports under Section 232 of the Trade Expansion Act of 1962, as amended.

Claims under the GATT 1994

The Panel found that the duties on steel and aluminium were inconsistent with Article II:1 of the GATT 1994 as they exceeded the bound tariff rates in the United States' WTO Schedule of Concessions. The Panel also found that exemptions from the duties granted to steel and aluminium products from certain countries were inconsistent with the requirement of most-favoured-nation treatment under Article I:1 of the GATT 1994. The Panel further found that quotas on steel and aluminium products from certain countries were inconsistent with the requirement to eliminate quantitative restrictions under Article XI:1 of the GATT 1994.

Applicability of Article XIX of the GATT 1994 and the Agreement on Safeguards

The Panel addressed the applicability of Article XIX of the GATT 1994 and the Agreement on Safeguards to the measures at issue focusing on Article 11.1(c) of the Agreement on Safeguards, which provides that the agreement “does not apply to measures sought, taken or maintained by a Member pursuant to provisions of GATT 1994 other than Article XIX”. The Panel considered that the terms “pursuant to” in this provision referred to measures sought, taken, or maintained under the purview of another provision of the GATT 1994, without entailing consistency with the specific requirements of such other provision. The Panel concluded based on evidence of the design and application of the measures at issue that they were sought, taken, or maintained pursuant to Article XXI of the GATT 1994 within the meaning of Article 11.1(c) of the Agreement on Safeguards. The Panel therefore found that the Agreement on Safeguards did not apply to the measures at issue.

Article XXI of the GATT 1994 (“Security Exceptions”)

The United States invoked Article XXI(b) of the GATT 1994 in relation to the measures at issue as “any action which it considers necessary for the protection of its essential security interests”.  The United States further argued that its measures were “taken in time of war or other emergency in international relations” under Article XXI(b)(iii). The Panel first addressed the parties' interpretive disagreement on the extent to which the terms of Article XXI(b) of the GATT 1994 permit review of a Member's invocation of that provision in proceedings under the DSU. The Panel considered that it was required under the DSU to address the United States' invocation of Article XXI(b) of the GATT 1994 in accordance with the terms of that provision and within an objective assessment of the relevant measures and claims.

Based on its interpretation of Article XXI(b) of the GATT 1994, the Panel assessed whether the measures found to be inconsistent with certain provisions of the GATT 1994 were taken under the conditions and circumstances described in subparagraph (iii) of Article XXI(b) providing that a Member may take action which it considers necessary for the protection of its essential security interests “in time of war or other emergency in international relations”. The Panel considered that an “emergency in international relations” under Article XXI(b)(iii) refers to situations of a certain gravity or severity and international tensions that are of a critical or serious nature in terms of their impact on the conduct of international relations.

Having considered the evidence and arguments submitted in this dispute, the Panel did not find that the measures at issue were “taken in time of war or other emergency in international relations” within the meaning of Article XXI(b)(iii) of the GATT 1994. The Panel therefore found that the inconsistencies of the measures at issue with certain provisions of the GATT 1994 were not justified under Article XXI(b)(iii) of the GATT 1994.