The Application of Article XXI of the GATT and the Violation of the Non-Discrimination Principle in Tariff Policy under Executive Order 14323

Abstract

The DS640 dispute between Brazil and the United States raises important questions in international trade law concerning the limits of WTO members’ authority to impose tariff measures on national-security grounds under Article XXI of the GATT 1994. The United States imposed additional tariffs on Brazilian steel products through the Section 232 mechanism, claiming that the measures protected national-security interests, whereas Brazil argued that they violated the principle of non-discrimination and the United States’ bound-tariff commitments. This article examines the legality of the tariff measures through three principal GATT disciplines: most-favoured-nation treatment under Article I, national treatment under Article III, and bound-tariff obligations under Article II. The study concludes that the tariffs are discriminatory because selective exemptions were granted to certain countries without an objective basis related to product differences, thereby contravening Article I. The measures also reflect protection of the United States’ domestic steel industry, which is inconsistent with Article III. In addition, the additional tariffs exceed the bound rates recorded in the United States Schedule of Concessions and therefore violate Article II. The national-security justification under Article XXI is considered inapplicable because the measures do not satisfy the “emergency in international relations” standard articulated in Russia – Traffic in Transit. Accordingly, the article argues that the United States’ measures in DS640 are inconsistent with its multilateral obligations and underscores the role of the WTO Dispute Settlement Body in preventing the national-security exception from being used as an instrument of protectionism.