WT/DS512/R  
 
5 April 2019  
(19-2105) Page: 1/137 
  Original: English  
 
  
RUSSIA - MEASURES CO NCERNING TRAFFIC IN TRANSIT  
REPORT OF THE PANEL  
 
 WT/DS512/R  
 
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TABLE OF CONTENTS  
 
1   INTRODUCTION  ................................ ................................ ...........................  19 
1.1   Complaint by Ukraine  ................................ ................................ ....................  19 
1.2   Panel establishment and composition  ................................ ..............................  19 
1.3   Panel proceedings  ................................ ................................ .........................  19 
1.3.1    General  ................................ ................................ ................................ .... 19 
1.3.2    Additional Working Procedures for the Protection of Busi ness Confidential 
Information  ................................ ................................ ................................ .........  20 
1.3.3    Request for enhanced third party rights by certain third parties  .......................  20 
1.3.4    Russia's request for a preliminary ruling  ................................ .......................  20 
1.3.5    Russia's complaint of alleged breaches of confidentiality by a third party  ..........  20 
1.3.6    Other procedural complaints  ................................ ................................ ....... 21 
2   FACTUAL ASPECTS ................................ ................................ ........................  21 
3   PARTIES' REQUEST S FOR FINDINGS AND R ECOMMENDATIONS  ...................  21 
4   ARGUMENTS OF THE  PARTIES  ................................ ................................ ...... 22 
5   ARGUMENTS OF THE  THIRD PARTIES  ................................ ...........................  22 
6   INTERIM REVIEW  ................................ ................................ .........................  22 
7   FINDINGS  ................................ ................................ ................................ .... 22 
7.1   Overview of Ukraine's complaints  ................................ ................................ ... 22 
7.2   Russia's response  ................................ ................................ .........................  24 
7.3   Factual background ................................ ................................ .......................  24 
7.4   Order of analysis  ................................ ................................ ..........................  29 
7.5   Russia's invocation of Article XXI(b)(iii) of the GATT 1994  ................................ . 30 
7.5.1    Main arguments of the parties  ................................ ................................ ..... 30 
7.5.2    Main arguments of the third parties  ................................ .............................  33 
7.5.3    Whether the Panel has jurisdiction to review Russia's invocation of 
Article  XXI(b)(iii) of the GATT 1994  ................................ ................................ ........  38 
7.5.3.1    Meaning of Article XXI(b)(iii) of the GATT 1994 ................................ ...........  39 
7.5.3.1.1    Whether the clause in the chapeau of A rticle XXI(b) qualifies the 
determination of the matters in the enumerated subparagraphs of that provision  ........  40 
7.5.3.1.2    Negotiating history of Article XXI of the GATT 1947  ................................ .. 43 
7.5.3.1.3    Conclusion on whether the cl ause "which it considers" in the chapeau of 
Article  XXI(b) qualifies the determination of the matters in the enumerated 
subparagraphs of that provision  ................................ ................................ .............  50 
7.5.3.2    Conclusion on whether the Panel has jurisdiction to review Russia's invocation of 
Article XXI(b)(iii) of the GATT 1994  ................................ ................................ ........  50 
7.5.4    The measures at issue and their existence  ................................ ....................  51 
7.5.5    Whether the measures were "taken in time of war or other e mergency in 
international relations" within the meaning of subparagraph (iii) of Article XXI(b)  ........  52 
7.5.5.1    Conclusion  ................................ ................................ .............................  55 
7.5.6    Whether the conditions of the chapeau of Article XXI(b) of the GATT 1994 are 
satisfied  ................................ ................................ ................................ ..............  55 WT/DS512/R  
 
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7.5.6.1    Conclusion  ................................ ................................ .............................  59 
7.5.7    Overall conclusion  ................................ ................................ ......................  59 
7.6   Ukraine's claims  of WTO -inconsistency of the measures at issue  .........................  59 
7.6.1    Introduction  ................................ ................................ ..............................  59 
7.6.2    Article V:2 of the GATT 1994  ................................ ................................ ....... 60 
7.6.2.1   Article V:2, first sentence  ................................ ................................ .........  60 
7.6.2.1.1    Main arguments of the parties  ................................ ...............................  60 
7.6.2.1.2    Main arguments of third parties  ................................ .............................  61 
7.6.2.1.3    Analysis  ................................ ................................ ..............................  62 
7.6.2.1.4    Conclusions  ................................ ................................ .........................  65 
7.6.2.2    Article V:2, second sentence  ................................ ................................ .... 65 
7.6.2.2.1    Main arguments of the parties  ................................ ...............................  65 
7.6.2.2.2    Main arguments of third parties  ................................ .............................  66 
7.6.2.2.3    Analysis  ................................ ................................ ..............................  66 
7.6.2.2.4    Conclusions  ................................ ................................ .........................  67 
7.6.3    Remaining claims under the GATT 1994 and Russia's Accession Protocol  ..........  68 
7.6.3.1    Introduction  ................................ ................................ ...........................  68 
7.6.3.2    Article V:3  ................................ ................................ ..............................  69 
7.6.3.2.1    Main arguments of the parties  ................................ ...............................  69 
7.6.3.2.2    Main arguments of third parties  ................................ .............................  69 
7.6.3.3    Article V:4  ................................ ................................ ..............................  70 
7.6.3.3.1   Main arguments of the parties  ................................ ...............................  70 
7.6.3.4    Article V:5  ................................ ................................ ..............................  70 
7.6.3.4.1    Main arguments of the parties  ................................ ...............................  70 
7.6.3.5    Article X of the GATT 1994  ................................ ................................ ....... 71 
7.6.3.5.1    Main arguments of the parties  ................................ ...............................  71 
7.6.3.5.2    Main arguments of third parties  ................................ .............................  73 
7.6.3.6    Russia's Accession Protocol  ................................ ................................ ...... 73 
7.6.3.6.1    Paragraph 1161 of Russia's Working Party Report  ................................ .... 73 
7.6.3.6.1.1    Main arguments of the parties  ................................ .............................  73 
7.6.3.6.2    Paragraph 1426 of Russia's Working Party Report  ................................ .... 73 
7.6.3.6.2.1    Main arguments of the parties  ................................ .............................  73 
7.6.3.6.3    Paragraph 1427 of Russia 's Working Party Report  ................................ .... 74 
7.6.3.6.3.1    Main arguments of the parties  ................................ .............................  74 
7.6.3.6.4    Paragraph 1428 of Russia's Working Party Report  ................................ .... 75 
7.6.3.6.4.1    Main arguments of the parties  ................................ .............................  75 
7.6.4    Applicability of Article XXI(b)(iii) of the GATT 199 4 to commitments in Russia's 
Accession Protocol  ................................ ................................ ................................  76 
7.6.4.1    Introduction  ................................ ................................ ...........................  76 
7.6.4.2    Paragraph 1161 of Russia's Working Party Report  ................................ ....... 77 WT/DS512/R  
 
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7.6.4.2.1    Paragraph 1161 of Russia's Working Party Report and Article XXI(b)(iii) of the 
GATT 1994  ................................ ................................ ................................ ..........  77 
7.6.4.2.2    Paragraph 1161 of Russia's Working Party Report and Article V:2 of the GATT 
1994 ................................ ................................ ................................ ..................  78 
7.6.4.3    Paragraph 1426 of Russia's Working Party Report and Article XXI(b)(iii) of the 
GATT 1994  ................................ ................................ ................................ ..........  78 
7.6.4.4    Paragraph 1427 of Russia's Working Party Report and Article XXI(b)(iii) of the 
GATT 1994  ................................ ................................ ................................ ..........  80 
7.6.4.5    Paragraph 1428 of Russia's Working Party Report and Article XXI(b)(iii) of the 
GATT 1994  ................................ ................................ ................................ ..........  81 
7.6.4.6    Conclusion  ................................ ................................ .............................  82 
7.7   Panel's terms of reference and the existence of the measures  ............................  82 
7.7.1    Identification of the measures and claims, and their relationship to each other  .. 82 
7.7.1.1    Presentation of the measures and claims in Ukraine's panel request  ..............  83 
7.7.1.2    Presentation of the measures and claims in Ukraine's first written submissio n 85 
7.7.2    Whether Ukraine's panel request satisfies the requirements of Article 6.2 of the 
DSU ................................ ................................ ................................ ...................  86 
7.7.2.1    First group of measures – identification of the specific measures at issue and 
the legal basis of the complaint  ................................ ................................ .............  87 
7.7.2.2    Second group of measures – identification of the specific measures at issue and 
the legal basis of the complaint  ................................ ................................ .............  87 
7.7.2.2.1    First sub -category of measures  ................................ ..............................  88 
7.7.2.2.2    Second sub -category of measures  ................................ ..........................  88 
7.7.2.2.2.1    Arguments of Russia  ................................ ................................ ..........  89 
7.7.2.2.2.2    Arguments of Ukraine  ................................ ................................ ........  89 
7.7.2.2.2.3    Analysis  ................................ ................................ ...........................  90 
7.7.2.2.3    Third sub -category of measures  ................................ .............................  95 
7.7.2.2.4    Identification of the legal basis of the complaint  ................................ ....... 95 
7.7.2.3    Conclusions on whether Ukraine's panel request satisfies the requirements of 
Article 6.2 of the DSU  ................................ ................................ ...........................  95 
7.7.3    Whether the 2014 Belarus -Russia Border Bans on Transit of Resolution No. 778 
Goods are within the Panel's terms of reference  ................................ .......................  96 
7.7.3.1    Whether the existence of the 2014 Belarus -Russia Border Bans goes to the 
Panel's terms of reference  ................................ ................................ .....................  98 
7.7.3.2    Whether Ukraine has established the existence of the 2014 Belarus -Russia 
Border Bans in its panel request  ................................ ................................ ...........  100 
7.7.4    Summary of the Panel's findings on the measures that are within its terms of 
reference  ................................ ................................ ................................ ...........  102 
8   CONCLUSIONS ................................ ................................ ............................  103  
APPENDIX – SUBSEQUEN T CONDUCT CONCERNING  ARTICLE XXI OF THE GATT 
1947  ................................ ................................ ................................ ...............  106  
 
 WT/DS512/R  
 
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LIST OF ANNEXES  
ANNEX A  
WORKING PROCEDURES O F THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel, as amended  4 
Annex  A-2 Additional Working Procedures Concerning BCI  9 
ANNEX B  
PROCEDURAL RULINGS  
Contents  Page  
Annex  B-1 Enhanced Third -Party Rights Ruling  12 
Annex  B-2 Confidentiality Ruling  16 
Annex  B-3 Admissibility Ruling  30 
ANNEX C  
ARGUMENTS OF THE PAR TIES  
UKRAINE  
Contents  Page  
Annex  C-1 First executive summary of the arguments of Ukraine  33 
Annex  C-2 Second executive summary of the arguments of Ukraine  43 
 
RUSSIAN FEDERATION  
Contents  Page  
Annex  C-3 First executive summary of the arguments of the Russian Federation  53 
Annex  C-4 Second executive summary of the arguments of the Russian Federation  60 
ANNEX D  
ARGUMENTS OF THE THI RD PARTIES  
Contents  Page  
Annex  D-1 Executive summary of the arguments of Australia  69 
Annex  D-2 Executive summary of the arguments of Brazil  73 
Annex  D-3 Executive summary of the arguments of Canada  76 
Annex  D-4 Executive summary of the arguments of China  81 
Annex  D-5 Executive summary of the arguments of the European Union  84 
Annex  D-6 Executive summary of the arguments of Japan  89 
Annex  D-7 Executive summary of the arguments of Moldova  94 
Annex  D-8 Executive summary of the arguments of Singapore  99 
Annex  D-9 Executive summary of the arguments of Turkey  103 
Annex  D-10 Executive summary of the arguments of the United States  106 
ANNEX E  
INTERIM REVIEW  
Contents  Page  
Annex  E-1 Interim Review  112 
 
 WT/DS512/R  
 
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CASES CITED IN THIS REPORT  
Short Title  Full Case Title and Citation  
Argentina – Footwear (EC)  Appellate Body Report, Argentina – Safeguard Measures on Imports 
of Footwear , WT/DS121/AB/R , adopted 12 January 2000, DSR 
2000:I, p. 515  
Argentina – Textiles and Apparel  Appellate Body Report, Argentina – Measures Affecting Imports of 
Footwear, Textiles, Apparel and Other Items , WT/DS56/AB/R  and 
Corr.1, adopted 22 April 1998, DSR 1998:III, p. 1003  
Australia – Apples  Panel Report, Australia – Measures Affecting the Importation of 
Apples from New Zealand , WT/DS367/R, adopted 17 December 
2010, as modified by Appellate Body Report WT/DS367/AB/R, DSR 
2010:VI, p. 2371  
Australia – Salmon  Appellate Body Report, Australia – Measures Affecting Importation 
of Salmon , WT/DS18/AB/R, adopted 6 November 1998, DSR 
1998:VIII, p. 3327  
Argentina – Import Measures  Appellate Body Reports, Argentina – Measures Affecting the 
Importation  of Goods , WT/DS438/AB/R / WT/DS444/AB/R / 
WT/DS445/AB/R, adopted 26 January 2015, DSR 2015:II, p. 579  
Canada – Aircraft  Panel Report, Canada – Measures Affecting the Export of Civilian 
Aircraft , WT/DS70/R , adopted 20 August 1999, upheld by Appellate 
Body Report WT/DS70/AB/R, DSR 1999:IV, p. 1443  
Canada – Periodicals  Appellate Body Report, Canada – Certain Measures Concerning 
Periodicals , WT/DS31/AB/R, adopted 30 July 1997, DSR 1997:I, p. 
449 
Canada – Renewable Energy / Canada – 
Feed-in Tariff Program  Appellate Body Reports, Canada – Certain Measures Affecting the 
Renewable Energy Generation Sector / Canada – Measures Relating 
to the Feed -in Tariff Program , WT/DS412/AB/R / WT/DS426/AB/R, 
adopted 24 May 2013, DSR 2013:I, p. 7  
Canada – Wheat Exports and Grain 
Imports  Appellate Body Report, Canada – Measures Relating to Exports of 
Wheat and Treatment of Imported Grain , WT/DS276/AB/R, adopted 
27 September 2004, DSR 2004:VI, p. 2739 
Chile – Price Band System  Panel Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products , WT/DS207/R, adopted 23 
October 2002, as modified by Appellate Body Report 
WT/DS207AB/R, DSR 2002:VIII, p. 3127  
China – Auto Parts  Appellate Body Reports, China – Measures Affecting Imports of 
Automobile Parts , WT/DS339/AB/R / WT/DS340/AB/R / 
WT/DS342/AB/R, adopted 12 January 2009, DSR 2009:I, p. 3  
China – Broiler Products  Panel Report, China  – Anti-Dumping and Countervailing Duty 
Measures on Broiler Products from the United States , WT/DS427/R 
and Add.1, adopted 25 September 2013, DSR 2013:IV, p. 1041  
China – HP-SSST (Japan) / China – HP-
SSST (EU ) Appellate Body Reports, China – Measures Imposing Anti-Dumping 
Duties on High -Performance Stainless Steel Seamless Tubes ("HP -
SSST") from Japan / China – Measures Imposing Anti -Dumping 
Duties on High -Performance Stainless Steel Seamless Tubes ("HP -
SSST") from the European Union , WT/DS454/AB/R  and Add.1 / 
WT/DS460/AB/R  and Add.1, adopted 28 October 2015, DSR 
2015:IX, p. 4573  
China – Publications and Audiovisual 
Products  Appellate Body Report, China – Measures Affecting Trading Rights 
and Distribution Services for Certain Publications and Audiovisual 
Entert ainment Products , WT/DS363/AB/R, adopted 19 January 
2010, DSR 2010:I, p. 3  
China – Rare Earths  Appellate Body Reports, China – Measures Related to the 
Exportation of Rare Earths, Tungsten, and Molybdenum , 
WT/DS431/AB/R / WT/DS432/AB/R / WT/DS433/AB/R, ado pted 29 
August 2014, DSR 2014:III, p. 805  WT/DS512/R  
 
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Short Title  Full Case Title and Citation  
China – Rare Earths  Panel Reports, China – Measures Related to the Exportation of Rare 
Earths, Tungsten, and Molybdenum , WT/DS431/R and Add.1 / 
WT/DS432/R and Add.1 / WT/DS433/R and Add.1, adopted 29 
August 2014, upheld by Appellate Body Reports WT/DS431/AB/R / 
WT/DS432/AB/R / WT/DS433/AB/R, DSR 2014:IV, p. 1127  
China – Raw Materials  Appellate Body Reports, China – Measures Related to the 
Exportation of Various Raw Materials , WT/DS394/AB/R / 
WT/DS395/AB/R / WT/DS398/AB/R, adopted 22 February 2012, 
DSR 2012:VII, p. 3295  
Dominican Republic – Import and Sale 
of Cigarettes  Appellate Body Report, Dominican Republic – Measures Affecting 
the Importation and Internal Sale of Cigarettes , WT/DS302/AB/R, 
adopted 19 May  2005, DSR 2005:XV, p. 7367  
EC – Asbestos  Appellate Body Report, European Communities – Measures 
Affecting Asbestos and Asbestos -Containing Products , 
WT/DS135/AB/R, adopted 5 April 2001, DSR 2001:VII, p. 3243  
EC – Bananas III (Article 21.5 – Ecuador 
II) / EC – Bananas III (Article 21.5 – 
US) Appellate Body Reports, European Communities – Regime for the 
Importation, Sale and Distribution of Bananas – Second Recourse 
to Article 21.5 of the DSU by Ecuador , WT/DS27/AB/RW2/ECU , 
adopted 11 December 2008, and Corr.1 / European Communities – 
Regime for the Importation, Sale and Distribution of Bananas – 
Recourse to Article 21.5 of the DSU by the United States , 
WT/DS27/AB/RW/USA  and Corr.1, adopted 22 December 2008, 
DSR 2008:XVIII, p. 7165  
EC – Bananas III (Ecuador) (Article 22.6 
– EC) Decision by the Arbitrator , European Communities – Regime for the 
Importation, Sale and Distribution of Bananas – Recourse to 
Arbitration by the European Communities under Article  22.6 of the 
DSU, WT/DS27/ARB/ECU , 24 March 2000, DSR 2000:V, p. 2237 
EC – Chicken Cuts  Appellate Body Report, European Communities – Customs 
Classification of Frozen Boneless Chicken Cuts , WT/DS269/AB/R, 
WT/DS286/AB/R, adopted 27 September 2005, and Corr.1, DSR 
2005:XIX, p. 9157  
EC – Computer Equipment  Appellate Body Report, European Communities – Customs 
Classification of Certain Computer Equipment , WT/DS62/AB/R, 
WT/DS67/AB/R, WT/DS68/AB/R, adopted 22 June 1998, DSR 
1998:V, p. 1851  
EC – IT Products  Panel Reports, European Communities  and its member States – 
Tariff Treatment of Certain Information Technology Products , 
WT/DS375/R / WT/DS376/R / WT/DS377/R, adopted 21 September 
2010, DSR 2010:III, p. 933  
EC – Poultry  Appellate Body Report, European Communities – Measures 
Affecting the I mportation of Certain Poultry Products , 
WT/DS69/AB/R, adopted 23 July 1998, DSR 1998:V, p. 2031  
EC – Selected Customs Matters  Appellate Body Report, European Communities – Selected Customs 
Matters , WT/DS315/AB/R , adopted 11 December 2006, DSR 
2006:IX, p. 3791  
EC – Tariff Preferences  Appellate Body Report, European Communities – Conditions for the 
Granting of Tariff Preferences to Developing Countries , 
WT/DS246/AB/R , adopted 20 April 2004, DSR 2004:III, p. 925  
EC and certain member States – Large 
Civil Aircraft  Appellate Body Report,  European Communities and Certain Member 
States – Measures Affecting Trade in Large Civil Aircraft , 
WT/DS316/AB/R, adopted 1 June 2011, DSR 2011:I, p. 7  
EC and certain member States – Large 
Civil Aircraft   Panel Report, European Communities and Certain Member States – 
Measures Affecting Trade in Large Civil Aircraft , WT/DS316/R , 
adopted 1 June 2011, as modified by Appellate Body Report 
WT/DS316/AB/R, DSR 2011:II, p. 685  
Japan – Agricultural Produc ts II Appellate Body Report, Japan – Measures Affecting Agricultural 
Products , WT/DS76/AB/R , adopted 19 March 1999, DSR 1999:I, p. 
277 WT/DS512/R  
 
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Short Title  Full Case Title and Citation  
Japan – Alcoholic Beverages II  Appellate Body Report, Japan – Taxes on Alcoholic Beverages , 
WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 
November 1996, DSR 1996:I, p. 97  
Mexico – Corn Syrup (Article 21.5 – US) Appellate Body Report, Mexico – Anti-Dumping Investigation of 
High Fructose Corn Syrup (HFCS) from the United States – 
Recourse to Article 21.5 of the DSU by the United States , 
WT/DS132/AB/RW, adopted 21 November 2001, DSR 2001:XIII, p. 
6675 
Mexico – Taxes on Soft Drinks  Appellate Body Report, Mexico – Tax Measures on Soft Drinks and 
Other Beverages , WT/DS308/AB/R , adopted 24 March 2006, DSR 
2006:I, p. 3  
Peru – Agricultural Products  Appellate Body Report, Peru – Additional Duty on Imports of 
Certain Agricultural Products , WT/DS457/AB/R  and Add.1, adopted 
31 July 2015, DSR 2015:VI, p. 3403  
Peru – Agricultural Products  Panel Report, Peru – Additional Duty on Imports of Certain 
Agricultural Products , WT/DS457/R and Add.1, adopted 31 July 
2015, as modified by Appellate Body Report WT/DS457/AB/R, DSR 
2015:VII, p. 3567  
Russia – Railway Equipment  Panel Report, Russia – Measures Affecting the Imp ortation of 
Railway Equipment and Parts Thereof , WT/DS499/R and Add.1, 
circulated to WTO Members 30 July 2018 [appealed by Ukraine 27 
August 2018]  
Russia – Tariff Treatment  Panel Report, Russia – Tariff Treatment of Certain Agricultural and 
Manufacturing Products , WT/DS485/R, Add.1, Corr.1, and Corr.2, 
adopted 26 September 2016, DSR 2016:IV, p. 1547  
US – 1916 Act  Appellate Body Report,  United States – Anti-Dumping Act of 1916 , 
WT/DS136/AB/R, WT/DS162/AB/R, adopted 26 September 2000, 
DSR 2000:X, p. 4793  
US – Anti-Dumping Measures on Oil 
Country Tubular Goods  Appellate Body Report, United States – Anti-Dumping Measures on 
Oil Country Tubular Goods (OCTG) from Mexico , WT/DS282/AB/R, 
adopted 28 November 2005, DSR 2005:XX, p. 10127  
US – Anti-Dumping Measures  on Oil 
Country Tubular Goods  Panel Report, United States – Anti-Dumping Measures on Oil 
Country Tubular Goods (OCTG) from Mexico , WT/DS282/R , adopted 
28 November 2005, as modified by Appellate Body Report 
WT/DS282/AB/R, DSR 2005:XXI, p. 10225  
US – Carbon Steel  Appellate Body Report, United States – Countervailing Duties on 
Certain Corrosion -Resistant Carbon Steel Flat Products from 
Germany , WT/DS213/AB/R and Corr.1, adopted 19 December 
2002, DSR 2002:IX, p. 3779  
US – Continued Zeroing  Appellate Bo dy Report, United States – Continued Existence and 
Application of Zeroing Methodology , WT/DS350/AB/R, adopted 19 
February 2009, DSR 2009:III, p. 1291  
US – Continued Zeroing  Panel Report, United States – Continued Existence and Application 
of Zeroing Metho dology , WT/DS350/R , adopted 19 February 2009, 
as modified as Appellate Body Report WT/DS350/AB/R, DSR 
2009:III, p. 1481  
US – Cotton Yarn  Appellate Body Report, United States – Transitional Safeguard 
Measure on Combed Cotton Yarn from Pakistan , WT/DS192/AB/R , 
adopted 5 November 2001, DSR 2001:XII, p. 6027  
US – Countervailing and Anti -Dumping 
Measures (China ) Appellate Body Report, United States – Countervailing and Anti -
Dumping Measures on Certain Products from China , 
WT/DS449/AB/R and Corr.1, a dopted 22 July 2014, DSR 2014:VIII, 
p. 3027  
US – FSC Appellate Body Report, United States – Tax Treatment for "Foreign 
Sales Corporations" , WT/DS108/AB/R, adopted 20 March 2000, 
DSR 2000:III, p. 1619  WT/DS512/R  
 
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Short Title  Full Case Title and Citation  
US – Hot-Rolled Steel  Appellate Body Report, United States – Anti-Dumping Measures on 
Certain Hot -Rolled Steel Products from Japan , WT/DS184/AB/R , 
adopted 23 August 2001, DSR 2001:X, p. 4697  
US – Lamb  Appellate Body Report, United States – Safeguard Measures on 
Imports of Fre sh, Chilled or Frozen Lamb Meat from New Zealand 
and Australia , WT/DS177/AB/R , WT/DS178/AB/R , adopted 16 May 
2001, DSR 2001:IX, p. 4051  
US – Large Civil Aircraft (2nd complaint) 
(Article 21.5 – EU) Panel Report, United States – Measures Affecting Trade in Large 
Civil Aircraft (Second Complaint) – Recourse to Article 21.5 of the 
DSU by the European Union , WT/DS353/RW and Add.1, circulated 
to WTO Members 9 June 2017 [appealed by the European Union 29 
June 2017]  
US – Line Pipe  Appellate Body Report, United States – Definitive Safeguard 
Measures on Imports of Circular Welded Carbon Quality Line Pipe 
from Korea , WT/DS202/AB/R, adopted 8 March 2002, DSR 
2002:IV, p. 1403  
US – Nicaraguan Trade  GATT Panel Report, United States – Trade Measures Affecting 
Nicaragua , L/6053 , 13 October 1986  (unadopted ) 
US – Oil Country Tubular Goods Sunset 
Reviews  Appellate Body Report, United States – Sunset Reviews of Anti -
Dumping Measures on Oil Country Tubular Goods from Argentina , 
WT/DS268/AB/R, adopted 17 December 2004, DSR 2004:VII, p. 
3257 
US – Orange Juice (Brazil ) Panel Report, United States – Anti-Dumping Administrative Reviews 
and Other Measures Related to Imports of Certain Orange Juice 
from Brazil , WT/DS382/R, adopted 17 June 2011, DSR 2 011:VII, p. 
3753 
US – Shrimp  Appellate Body Report, United States – Import Prohibition of 
Certain Shrimp and Shrimp Products , WT/DS58/AB/R, adopted 6 
November 1998, DSR 1998:VII, p. 2755  
US – Sugar Quota   GATT Panel Report , United States – Imports of Sugar from 
Nicaragua , L/5607 , adopted 13 March 1984, BISD 31S/67  
US – Tuna II (Mexico) (A rticle 21.5 – 
Mexico)  Appellate Body Report, United States – Measures Concerning the 
Importation, Marketing and Sale of Tuna and Tuna Products – 
Recourse to Article 2 1.5 of the DSU by Mexico , WT/DS381/AB/RW  
and Add.1, adopted 3 December 2015, DSR 2015:X, p. 5133  
US – Wheat Gluten  Appellate Body Report, United States – Definitive Safeguard 
Measures on Imports of Wheat Gluten from the European 
Communities , WT/DS166/AB/R , adopted 19 January 2001, DSR 
2001:II, p. 717  
US – Wool Shirts and Blouses  Appellate Body Report, United States – Measure Affecting Imports 
of Woven Wool Shirts and Blouses from India , WT/DS33/AB/R, 
adopted 23 May 1997, and Corr.1, DSR 1997: I, p. 323  
 WT/DS512/R  
 
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JUDGMENTS OF INTERNA TIONAL COURTS AND TR IBUNALS CITED IN THI S REPORT  
Short Title  Full Case Title and Citation  
Case Concerning the Northern Cameroons  International Court of Justice, Preliminary Objections, Case 
Concerning the Northern Cameroons , (Cameroon v. United 
Kingdom) (1963) ICJ  Reports, p. 15  
Case Concerning Oil Platforms  International Court of Justice, Merits, Case Concerning Oil 
Platforms , (Islamic Republic of Iran v. United States of 
America) (2003) ICJ Reports, p. 161  
Case of  Military and Paramilitary Activities in 
and Against Nicaragua   International Court of Justice,  Merits, Case of  Military and 
Paramilitary Activities in and Against Nicaragua,  (Nicaragua v. 
United States of America) (1986) ICJ Reports , p. 14 
Certain Expenses of the United Nations  
 International Court of Justice, Advisory Opinion, Certain 
Expenses of  the United Nations, (United Nations) (1962) I.C.J. 
Reports, p. 151  
Nuclear Tests Case   International Court of Justice , Questions of Jurisdiction and/or 
Admissibility,  Nuclear Tests Case , (Australia v. France) (1974) 
ICJ Reports, p. 253  
Prosecutor v. Tadić  International Criminal Tribunal for the Former Yugoslavia, 
Decision on the Defence Motion for Interlocutory Appeal on 
Jurisdiction, Prosecutor v. Tadić, (1995), Case No IT -94-1-A 
 
  WT/DS512/R  
 
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ABBREVIATIONS USED I N THIS REPORT  
Abbreviation  Description  
1982 Decision  Decision Concerning Article XXI of the General Agreement  
2014 Belarus -Russia 
Border Bans on Transit of 
Resolution No. 778 
Goods, or 2014 Belarus -
Russia Border Bans  Prohibitions on transit from Ukraine across Russia, through 
checkpoints in Belarus, of goods subject to veterinary and 
phytosanitary surveillance and which are subject to the import bans 
implemented by Resolution  No. 778, along with related 
requirements th at, as of 30 November 2014, such veterinary goods 
destined for Kazakhstan or third countries enter Russia through 
designated checkpoints on the Russian side of the external customs 
border of the EaEU and only pursuant to permits issued by the 
relevant vete rinary surveillance authorities of the Government of 
Kazakhstan and the Rosselkhoznadzor , and that, as of 24 
November 2014, transit to third countries (including Kazakhstan) of 
such plant goods  takes place exclusively through the checkpoints 
across the Russian state border  
2016 Transit Ban s on 
Non-Zero Duty and 
Resolution No. 778 Goods  Bans on all road and rail transit from Ukraine of: (a) goods that are 
subject to non -zero import duties according to  the Common 
Customs Tariff of the EaEU, and (b) goods that fall within the scope 
of the import bans imposed by Resolution No. 778, which are 
destined for Kazakhstan or the Kyrgyz Republic. Transit of such 
goods may only occur pursuant to a derogation reque sted by the 
Government of Kazakhstan or the Government of the Kyrgyz 
Republic,  which is then authorized by the Russian Government, in 
which case, the transit is subject to the 2016 Belarus Transit 
Requirements (below)  
2016 Belarus Transit 
Requirements  Requirements that all international cargo transit by road and rail 
from Ukraine destined for the Republic of Kazakhstan or the Kyrgyz 
Republic, through Russia, be carried out exclusively from the 
Belarus -Russia border, and comply with a number of additional 
conditions related to identification and registration cards at specific 
control points on the Belarus -Russia border and the Russia -
Kazakhstan border  
A350 Airbus A350 Aircraft  
April 1989 Decision  Improvements to the GATT Dispute Settlement System Rules and  
Procedures, Decision of 12 April 1989, L/6489, 13 April 1989  
BCI Business Confidential Information  
CIS-FTA Treaty on a Free Trade Area between the members of the 
Commonwealth of Independent States , done at St Petersburg, 18 
October 2011 , retrieved from : 
http://rtais.wto.org/rtadocs/762/TOA/English/FTA%20CIS_Text%2
0with%20protocols.docx  
Covered agreements  Agreements listed in Appendix 1 (of the Understanding on Rules 
and Procedures Governing the Settlement of Disputes)  
CU Customs Union  
DCFTA Deep and Comprehensive Free Trade Area  
 
Title IV (Trade and Trade -Related Matters) of the Association 
Agreement between the European Union and its Member States, of 
the one part, and Ukraine, of the other part , L 161/13, Vol. 57, 29 
May 2014, ISSN 1977 -0677 WT/DS512/R  
 
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Abbreviation  Description  
De facto measure  Restrictions on the traffic in transit from the territory of Ukraine 
through the territory of the Russian Federation to countries in 
Central and Eastern Asia and Caucasus other than the Republic of 
Kazakhstan and the Kyrgyz  Republic by de facto applying Decree 
No. 1 and Resolution No. 1 to transit from the territory of Ukraine 
to third countries other than the Republic  of Kazakhstan and the 
Kyrgyz Republic  
Decree No. 1  Decree of the President of the Russian Federation No. 1 , "On 
measures to ensure economic security and national interests of the 
Russian Federation in international cargo transit from the territory 
of Ukraine to the territory of the Republic of Kazakhstan through 
the territory of the Russian Federation", dated 1 January 2016  
Decree No. 319  Decree of the President of the Russian Federation No. 319, "On 
Amendments to the Decree of the President of the Russian 
Federation No. 1 of 1 January 2016", dated 1 July 2016  
Decree No. 560  Decree of the President of the Rus sian Federation No. 560 , "On the 
application of certain special economic measures to ensure security 
of the Russian Federation ", dated 6 August 2014  
Decree No. 643  Decree of the President of the Russian Federation No. 643 , "On 
amendments to the Decree of the President of the Russian 
Federation No. 1 of 1 January 2016 'On measures to ensure 
economic security and national interests of the Russian Federation 
in international cargo transit from the territory of Ukraine to the 
territory of the Republic of Kazak hstan through the territory of the 
Russian Federation '", dated 30 December 2017  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement 
of Disputes  
EaEU Eurasian Economic Union  
EaEU Treaty  Treaty on the Establishment of the Eurasian Economic Union, done 
at Astana, 29 May 2014, retrieved from: 
https://www.wto.org/english/thewto_e/acc_e/kaz_e/WTACCKAZ85
_LEG_1.pdf  
EU-Ukraine Association 
Agreement  Association Agreement between the European Union and its 
Member States, of the one part, and Ukraine, of the other part, 
Official Journal of the European Union , L 161, Vol. 57, 29 May 
2014, ISSN 1977 -0677 
GATS  General Agreement on Trade and Services  
GATT  General Agreement on Tariffs and Trade  
GATT 1947  General Agreement on Tariffs and Trade 1947  
GATT 1994  General Agreement on Tariffs and Trade 1994  
GLONASS  Global Navigation Satellite System  
 
(Russian translation: Globalnaya Navigazionnaya Sputnikovaya 
Sistema ) 
Helms -Burton Act  Cuban Liberty and Democratic Solidarity (LIBERTAD) Act  
ICJ International Court of Justice  
Import Licensing 
Agreement  Agreement on Import Licensing Procedures  WT/DS512/R  
 
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Abbreviation  Description  
ITO International Trade Organization  
LA/MSF  Launch aid / member State financi ng 
PJSC Notice  Public Joint -Stock Company "Russian Railways" Notice on assessing 
the fee for placing/removal of GLONASS seals at Moskovskaya, 
Privolzhskaya, Yugo -Vostochnaya (South -Eastern) Railways, dated 
17 May 2016  
PJSC Order  Public Joint -Stock Company "Russian Railways" Order No. 529r , "On 
approval of the procedure for installing (removing) of the 
identification means (seals) operating on the basis of the 
technology GLONASS", dated 28 March 2016  
Plant Instruction  Instruction No. FS -AS-3/22903 of the  Federal Service for Veterinary 
and Phytos anitary Surveillance  (Rosselkhoznadzor ), dated 21 
November 2014  
Ramírez – López Treaty  Treaty on Maritime Delimitation in the Caribbean Sea  
Resolution No. 1  Resolution No. 1 of the Government of the Russian Federation, "On 
measures related to the implementation of the Decree of the 
President of the Russian Federation No. 1 of 1 January 2016", dated 
1 January 2016  
Resolution No. 778  Resolution of the Government of  the Russian Federation No. 778,  
"On measures for implementation of the Decree of the President of 
the Russian Federation No. 560 of 6 August 2014 'On the 
application of certain special economic measures to ensure security 
of the Russian Federation' ", dated 7 August 2014  
Rosselkhoznadzo r Russian Federal Service for Veterinary and Phytosanitary 
Surveillance  
Russia's Accession 
Protocol  Protocol of the Accession of the Russian Federation, 
WT/MIN(11)/24; WT/L/839, 17 December 2011  
Russia's Working Party 
Report  Report of the Working Party o n the Accession of the Russian 
Federation to the WTO , WT/ACC/RUS/70 and WT/MIN(11)/2, dated 
11 November 2011  
SPS Agreement  Agreement on the Application of Sanitary and Phytosanitary 
Measures  
TBT Agreement  Agreement on Technical Barriers to Trade  
TPRM  Trade Policy Review Mechanism  
TRIPS Agreement  Agreement on Trade -Related Aspects of Intellectual Property Rights  
Ukraine's 2016 Trade 
Policy Review Report  Trade Policy Review Body, Trade Policy Review, Ukraine, 
Government Report prepared by Ukraine,  WT/TPR/G/334  
UN Charter  Charter of the United Nations , done at San Francisco, 24 October 
1945,  UN Treaty Series Vol. 1, p. XVI  
UN General Assembly  General Assembly of the United Nations  
US Draft Charter  Unite d States, Department of State, " Suggested Charter for an 
International Trade Organization of the U nited Nations", Publication 
2598, Commercial Policy Series 93, September 1946  
Veterinary Instruction  Instruction No . FS-NV-7/22886 of the  Federal Service for 
Veterinary and Phytosanitary Su rveillance  (Rosselkhoznadzor ), 
dated 21 November 2014  
Vienna Convention  Vienna Convention on the Law of Treaties , done at Vienna, 23 May 
1969, UN Treaty Series, Vol. 115, p. 331  WT/DS512/R  
 
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Abbreviation  Description  
WTO World Trade Organization  
WTO Agreement  Marrakesh Agreement Establishing the World Trade Organization  
 
  WT/DS512/R  
 
- 15 - 
 
EXHIBITS CITED IN TH IS REPORT  
Panel Exhibit  Short Title (where 
applicable)  Full Title  
UKR-1, RUS -1 Decree No.  1 Decree of the President of the Russian Federation  No. 1 , "On 
measures to ensure economic security and national interests 
of the Russian Federation in international cargo transit from 
the territory of Ukraine to the territory of the Republic of 
Kazakhstan through the territory of the Russian Federation", 
dated 1 January 2016  
UKR-2, RUS -2 Decre e No. 319  Decree of the President of the Russian Federation  No. 319 , 
"On amendments to the Decree of the President of the 
Russian Federation No. 1 of 1 January 2016 'On measures to 
ensure the economic security and national interests of the 
Russian Federation in international cargo transit from the 
territory of Ukraine to the territory of the Republic of 
Kazakhstan through the territory of the Russian Federation '", 
dated 1 July 2016  
UKR-3, RUS -4 Resolution No. 1  Resolution of the Government of Russian Federation No. 1, 
"On measures related to the implementation of the Decr ee of 
the President of the Russian Federation No. 1 of 1 January 
2016", dated 1 January 2016  
UKR-4 Resolution No. 732  Resolution of the Government of the Russian Federation No. 
732, "On amendments to some acts of the Government of 
the Russian Federation",  dated 1 August 2016  
UKR-5 Resolution No. 388  Resolution of the Government of the Russian Federation No. 
388, "On introduction of amendments to Appendix to the 
Resolution of the Government of the Russian Federation No. 
1 of 1 January 2016", dated 30 April  2016 
UKR-6, RUS -5 Resolution No. 147  Resolution of the Government of the Russian Federation No. 
147, "On approval of requirements to the identification 
means (seals) including the ones functioning on the basis of 
the technology of global satellite navigation system 
GLONASS", dated 27 February 2016  
UKR-7 PJSC Order  Order of PJSC "Russian Railways " No. 529r, "On approval of 
the procedure for installing (removing) of the identification 
means (seals) operating on the basis of the technology 
GLONASS", dated 28 March 2016  
UKR-8, RUS -6 Resolution No. 276  Resolution of the Government of the Russian Federation No. 
276, "On the procedure of exercising control over the 
international road and rail cargo transit from the territory of 
Ukraine to the territory of the Republic of Kazakhstan or the 
Kyrgyz Republic through the territory of the Russian 
Federation", dated 6 April 2016  
UKR-9, RUS -3 Decree No. 560  Decree of the President of the Russian Federation No. 560, 
"On the application of certain special economic measures to 
ensure security of the Russian Federation", dated 6 August 
2014 
UKR-10, RUS -7 Resolution No. 778  Resolution of the Government of the Russian Federation No. 
778, "On measures for implementation of the Decree of the 
President of the Russian Federation No. 560 of 6 August 2014 
'On the application of certain special economic measures to 
ensure security of  the Russian Federation '", dated 7 August 
2014  
UKR-11 Resolution No. 830  Resolution of the Government of the Russian Federation No. 
830, "On amendments to the Resolution of the Government 
of the Russian Federation dated 7 August 2014 No. 778", 
dated 20 A ugust 2014  
UKR-12 Resolution No. 625  Resolution of the Government of the Russian Federation No. 
625, "On amendments to the Resolution of the Government 
of the Russian Federation dated 7 August 2014 No. 778", 
dated 25 June 2015  WT/DS512/R  
 
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Panel Exhibit  Short Title (where 
applicable)  Full Title  
UKR-13 Resolution No. 842  Resolution of the Government of the Russian Federation No. 
842, "On amendments to the Resolutions of the Government 
of the Russian Federation dated 7 August 2014 No. 778 and 
dated 31 July 2015 No. 774", dated 13 August  2015 
UKR-14 Resolution No. 981  Resolution of the Government of the Russian Federation No. 
981, "On amendment of the Annex to the Resolution of the 
Government of the Russian Federation dated 7 August 2014 
No. 778", dated 16 September 2015  
UKR-15 Resolution No. 1397  Resolution of the Government of the Russian Federation No. 
1397, "On amendment of Item 1 of Resolution No. 778 of the 
Government of the Russian Federation dated 7 August 2014", 
dated 21 December 2015  
UKR-16 Resolution No. 157  Resolution of the Government of the Russian Fed eration No. 
157, "On amendment of the Annex to the Resolution of the 
Government of the Russian Federation dated 7 August 2014 
No. 778", dated 1 March 2016                  
UKR-17 Resolution No. 472  Resolution of the Government of the Russian Federation No. 
472, "On amendment of the Annex to the Resolution of the 
Government of the Russian Federation dated 7 August 2014 
No. 778", dated 27 May 2016  
UKR-18 Resolution No. 608  Resolution of the Government of the Russian Federation No. 
608, "On amen dments to the Resolution of the Government 
of the Russian Federation dated 7 August 2014 No. 778", 
dated 30 June 2016    
UKR-19 Resolution No. 897  Resolution of the Government of the Russian Federation No. 
897, "On amendment to Annex to the Russian Federat ion 
Government Resolution dated 7 August 2014 No. 778", dated 
10 September 2016  
UKR-20 Resolution No. 1086  Resolution of the Government of the Russian Federation No. 
1086, "On amendment of the Annex to the Resolution of the 
Government of the Russian Federation dated 7 August 2014 
No. 778", dated 22 October 2016  
UKR-21, RUS -10 Veterinary Instruction  Instruction No. FS -NV-7/22886 of the Federal Service for 
Veterinary and Phytosanitary Surveillance 
(Rosselkhoznadzor ), dated 21 November 2014  
UKR-22, RUS -11 Plant Instruction  Instruction No. FS -AS-3/22903 of the Federal Service for 
Veterinary and Phytosanitary Surveillance 
(Rosselkhoznadzor ) dated 21 November 2014  
UKR-47  
Federal Law No. 410 -FZ of the Russian Federation, "On 
Suspending by the R ussian Federation of the Treaty on a Free 
Trade Area with respect to Ukraine", dated 30 December 
2015 
UKR-53 European Commission 
Press Release  Press release "The trade part of the EU -Ukraine Association 
Agreement becomes operational on 1 January 2016", dated 
31 December 2015, European Commission, available at : 
http://europa.eu/rapid/ press -release_IP -15-6398_en.htm   
UKR-58  Treaty on the Establishment of the Eurasian Economic Union, 
done at Astana, 29 May 2014, available at : 
https://www.wto.org/english/thewto_e/acc_e/kaz_e/WTACCK
AZ85_LEG_1.pdf  
UKR-70 Resolution No. 790  Resolution of the Government of the Russian Federation No. 
790, "On amendments to the Resolution of the Government 
of the Russian Federation dated 7 August 2014 No. 778", 
dated 4 July 2017  
UKR-71 Decree No. 293  Decree of the President of the Russian Federation No. 293, 
"On extending certain special economic measures in the 
interest of ensuring the security of the Russian Federation", 
dated 30 June 201 7 
UKR-75  
Instruction No. FS -EN-7/19132 of the  Federal Service for 
Veterinary and Phytosanitary Surveillance  
(Rosselkhoznadzor ), dated 10 October 2016  WT/DS512/R  
 
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Panel Exhibit  Short Title (where 
applicable)  Full Title  
UKR-76  Decree of the President of the Russian Federation No. 628, 
"About suspension of validity by the Russian Federation of 
the free trade area concerning Ukraine", dated 16 December 
2015 
UKR-78 UNIAN Information 
Agency Article  UNIAN Information Agency, "Putin signed and amended the 
law on the suspension of the FTA with Ukraine", dated 30 
December 2015, available at : 
https://economics.unian.net/finance/1226612 -putin-
podpisal -zakon -o-priostanovlenii -zst-s-ukrainoy.html  
UKR-80 RBK article  RBK, "Putin suspended the free trade agreement with 
Ukraine", dated 16 December 2015, available  at: 
http://www.rbc.ru/politics/16/1 2/2015/567178fe9a7947944e
73b0a4  
UKR-84  Print-screen of the website of the President of the Russian 
Federation , "The law on suspension of the FTA agreement 
with Ukraine is signed",  dated 30 December 2015,  available 
at: kremlin.ru/acts/news/51091  
UKR-88  Official Site of the Rosselkhoznadzor , "Regarding Regulation 
by Rosselkhoznadzor of Quarantined Plant Products Transit", 
dated 24 November 2014  
UKR-89 UN General Assembly 
Resolution No. 
68/262 , 27 March 
2014 UN General Assembly Resolution No. 68/262 "Territorial 
integrity of Ukraine", 27 March 2014, A/RES/68/262  
UKR-91 UN General Assembly 
Resolution No. 
71/205 , 19 December 
2016 UN General Assembly Resolution No. 71/205 "Situation of 
human rights in the Autonomous Republic of Crimea and the 
city of Sevastopol (Ukraine)", 19 December 2016, 
A/RES/71/205  
UKR-94 Resolution No. 1292  Resolution of the Government of the Russian Federation No. 
1292, "On amendments to the Annexes to Resolution of the 
Government of the Russian Federation of 7 August 2014 No. 
778", dated 25 October 2017  
UKR-98, RUS -13 Decree No. 643  Decree of the President  of the Russian Federation No. 643, 
"On amendments to the Decree of the President of the 
Russian Federation No. 1 of 1 January 2016 'On measures to 
ensure economic security and national interests of the 
Russian Federation in international cargo transit fro m the 
territory of Ukraine to the territory of the Republic of 
Kazakhstan through the territory of the Russian Federation '", 
dated 30 December 2017  
UKR-102 The Regions of Central 
Asia, Eastern Asia and 
Caucasus  Map of Central Asia, Map of the Caucasus and Central Asia, 
and the UN Classification of Countries by Region, Income 
Group, and Subregion of the World  
UKR-111 EU-Ukraine 
Association Agreement  Association Agreement between the European Union and its 
Member States , of the one part,  and Ukr aine, of the other 
part, Official Journal of the European Union, L 161, Vol. 57, 
29 May 2014, ISSN 1977 -0677 
UKR-112  Notice concerning the provisional application of the 
Association Agreement between the European Union and the 
European Atomic Energy Community and their Member 
States , of the one part , and Ukraine, of the other part, 
Official Journal of the European Union , L 311/1, 31 October 
2014 
RUS-8 Federal Law No. 281 -
FZ Federal Law No. 281 -FZ of the Russian Federation, "On the 
Special Econ omic Measures ", dated 30 December 2006  
RUS-12 Federal Law No. 390 -
FZ Federal Law No. 390 -FZ of the Russian Federation, "On 
Security", dated 28 December 2010  
RUS-14  
Telegram of "Ukrzaliznytsia " (Ukrainian Railways) No. CZM -
14/946, dated 6 June 2014  WT/DS512/R  
 
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Panel Exhibit  Short Title (where 
applicable)  Full Title  
RUS-15  Print-screen of the website of the State Border Guard Service 
of Ukraine , retrieved from: https://dpsu.gov.ua/ua/news/na -
lyganshhini -stvorjujutsja -zagoni -prikordonnoi -samooboroni/  
RUS-16  
Resolution of the Cabinet of Ministers of Ukraine No. 20, "On 
approval of the list of checkpoints through the state border of 
Ukraine, through which the good s are imported in transit 
mode", dated 20 January 2016  
RUS-17  
Regulation of the Cabinet of Ministers of Ukraine No. 106 -r, 
"On the closure of checkpoints across the state border", 
dated 18 February 2015  
RUS-18  Telegram of "Ukrzaliznytsia" (Ukrainian Railways) No. CZM -
14/1134, dated 8 July 2014  
RUS-19  Resolution of the Cabinet of Ministers of Ukraine No. 1147 , 
"On the prohibition of importation of products originating in 
the Russian Federation into the customs territory of Ukraine", 
dated 30 December 2015  
RUS-20  Decree of the President of Ukraine No. 133/2017, "On the 
Decision of the National Security and Def ense Council of 
Ukraine 'On application of personal special economic and 
other restrictive measures (sanctions) '", dated 28 April 2017  
RUS-22  Decree of the President of Ukraine No. 58/2018, "On the 
decision of the Ukrainian National Security and Defense 
Council 'Urgent measures on security of the national interests 
of the state in the sphere of aircraft engine building '", dated 
1 March 2018  
RUS-23  
Decree of the President of Ukraine No. 57/2018, "On entry 
into force of the Decision of the Council on National Security 
and Defense of Ukraine of 1 March 2018, 'On application of 
personal special economic and other restrictive measures 
(sanctions) '", dated 6 March 2018  
RUS-24 Resolution No. 959  Resolution of the Russian Federation No. 959, "On imposition 
of import customs duties in respect of goods, originating from 
Ukraine", dated 19 September 2014    
 
 
 
 
  WT/DS512/R  
 
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1  INTRODUCTION  
1.1  Complaint by Ukraine  
1.1.  On 14 September 2016 , Ukraine requested consultations with the Russian Federation (Russia)  
pursuant to Articles 1 and 4 of the Understanding on Rules and Procedures Governing the Settlement 
of Disputes (DSU) and Article XXII of the General Agreement on Tariffs and Trade 1994 (GATT 1994)  
with respect to the measures and claims set out below.1 
1.2.  Consultations were held on 10 November 2016 between Ukraine and Russia. These 
consultations failed to resolve the dispute.2 
1.2  Panel establishment and composition  
1.3.  On 9 February 2017 , Ukraine requested the establishment of a panel pursuant to Article  4.7 
and Art icle 6 of the DSU , and Article XXIII of the GATT 1994  with standard terms of reference.3 At its 
meeting on  21 March 2017 , the Dispute Settlement Body (DSB) established a panel pursuant to 
Ukraine's request in document WT/DS 512/3 , in accordance with Article  6 of the DSU.4 
1.4.  The Panel's terms of reference are the following:  
To examine, in the light of the relevant provisions of the covered agreements cited by 
the parties to the dispute, the matter referred to the DSB by Ukraine  in document 
WT/DS 512/3  and to mak e such findings as will assist the DSB in making the 
recommendations or in giving the rulings provided for in those agreements.5 
1.5.  On 22 May 2017 , Ukraine requested the Director -General to determine the composition of the 
panel, pursuant to Article 8.7 of th e DSU . On 6 June 2017 , the Director -General accordingly 
composed the Panel as follows6: 
Chairperson:  Professor Georges Abi -Saab 
 
Members:   Professor Ichiro Araki  
   Dr Mohammad Saeed  
 
1.6.  Australia, Bolivia, Brazil, Canada, Chile, China, the European Union, India, Japan, Korea, 
Moldova, Norway, Paraguay, Saudi Arabia, Singapore, Turkey and the United States notified their 
interest in participating in the Panel proceedings as third parties.  
1.3  Panel proceedings  
1.3.1   General  
1.7.  The Panel held an organizational meeting with the parties on 28 June 2017.  
1.8.  After consultation with the parties, the Panel adopted its Working Procedures7 and timetable8 
on 12 July 2017 . 
1.9.  The Panel held a first substantive meeting w ith the parties on  23 and 25 January 2018. 
A session with the third parties took place on  25 January 2018 . The Panel held a second substantive 
meeting with the parties on  15 May 2018.  
                                                
1 WT/DS512/1 and WT/DS512/1/Corr.1.  
2 WT/DS512/3.  
3 Ibid. 
4 See WT/DSB/M/394.  
5 WT/DS512/4.  
6 Ibid. 
7 The Panel's Working Procedures were revised on 11 January 2018. See the Panel's 
Working  Procedures, adopted on 12 July 2017, as revised on 11 January 2018, in Annex A -1. 
8 The timetable for the Panel proceedings was revised on 31 January 2018 and on 17 Ja nuary 2019.  WT/DS512/R  
 
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1.10.   On 31 July 2018 , the Panel issued the descriptive part of its Report to  the parties. The Panel 
issued its Interim Report to the parties on  29 January 2019. The Panel issued its Final Report to the 
parties on  28 March  2019. 
1.3.2   Additional Working Procedure s for the Protection of Business  Confidential 
Information  
1.11.   After consultation  with both parties, the Panel adopted Additional Working Procedures 
concerning the protection of Business Confidential Information (BCI), on 25 August 2017.9  
1.3.3   Request for enhanced third party rights  by certain third parties  
1.12.   On 10 November 2017, Australia, Canada and the European Union jointly requested the Panel 
to grant to all of the third parties certain additional third -party rights in these proceedings. The Panel 
invited the parties and other third parties, on 20 November 2017, to comment on the joint r equest. 
On 1 December 2017, Ukraine, Russia and certain of the other third parties (Brazil, China, Japan, 
Singapore and the United States) provided comments on the joint request. In a communication 
dated 9 January 2018, the Panel informed the parties and t hird parties that it had decided to grant 
the following enhanced third -party rights to all of the third parties:  
a. The right to attend the portions of the party session of the first substantive meeting at 
which the parties deliver their opening oral statemen ts, and closing oral statements, 
respectively; and  
b. The right to receive the provisional written versions of the parties' opening oral statements 
and closing oral statements, respectively, at the portions of the party session of the 
first substantive meetin g at which those statements are delivered, as well as the final 
versions of such oral statements at the end of the day on which they are delivered.  
1.13.   The Panel's decision is set out in Annex B -1. 
1.3.4   Russia's request for a p reliminary ruling  
1.14.   In its first written  submission, Russia  requested that the Panel issue a ruling, no later than 
the date for filing the parties' second written  submissions, that the category of measures identified 
in Ukraine's first written submission as the "2014 transit ban s and other transit restrictions" is 
outside the Panel's terms of reference.10  
1.15.   On 13 March 2018 , the Panel issued a communication to the parties in which it advised that 
it had decided to address the issue of whether the 2014 transit ban s and other transit restrictions 
are outside the Panel's terms of reference , together with the merits, and would therefore defer its 
ruling on that issue until the issuance of the Report.11  
1.16.   The Panel's ruling on whether the 2014 transit bans and other transit restrictions are  outside 
the Panel's terms of reference , and other issues concerning the Panel's terms of reference,  is 
addressed in Section 7.7 of this Report.  
1.3.5   Russia's complaint of alleged breaches of confidentiality by a third party  
1.17.   In a letter to the Panel dated 14 Ma rch 2018, Russia complained that the European Union, 
a third party in this dispute, had violated confidentiality obligations under various provisions of the 
DSU and of the Working Procedures by publishing the European Union's third -party submission and 
third-party statement on the website of the European Commission's Directorate -General for Trade.12 
By communication dated 16 March 2018, the Panel invited the European Union and any other 
third parties, as well as Ukraine, to provide any comments on Russia's c omplaint by 21 March 2018. 
Accordingly, on 21 March 2018, the European Union, Australia, Brazil, Canada, the United States 
                                                
9 See the Panel's additional Working Procedures concerning BCI in Annex  A-2. 
10 Russia's first written submission, para. 31.  
11 Communication of the Panel to the parties, dated 13 March 2018.  
12 Russia's letter to the Chair of the Panel, dated 14 March 2018.  WT/DS512/R  
 
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and Ukraine each provided comments on Russia's complaint. On 23 March 2018, the Panel invited 
Russia to respond to these comments by 4 April 2018. On that date, Russia provided its response.  
1.18.   On 16 May 2018, the Panel issued a ruling in which it declined to take any action in respect 
of the published European Union third -party submission and third -party statement on the grounds 
that it did not consider that such publication violated the confidentiality obligations under Article  18.2 
of the DSU, the Working Procedures or any other applicable confidentiality obligations.  Particularly, 
the Panel did not agree with the proposition that legal arguments  and opinions of parties in WTO 
dispute settlement proceedings were inherently confidential, or capable of designation as confidential 
information under the third sentence of Article 18.2 of the DSU. The Panel's ruling is set out in 
Annex  B-2.  
1.3.6   Other procedural complaints  
1.19.   In an email message dated 28 March 2018, Ukraine alleged that Russia had failed to file 
Exhibit RUS -20 (UKR) in accordance with paragraph 25 of the Working Procedures because it filed 
this exhibit by means of reference to a web link. In a communication to the parties dated 
6 April 2018, the Panel noted that Russia had promptly submitted a paper version of 
Exhibit  RUS-20 (UKR) by 5 :00 p.m. on the due date for submission, and that in accordance with 
paragraph 25(b) of the Working P rocedures, Exhibit RUS -20 (UKR) therefore formed part of the 
factual record in this dispute. The Panel also noted that, due to the size of the exhibit, the PDF file 
containing Exhibit  RUS-20 (UKR) could not be attached to an email message. The Panel theref ore 
requested Russia to provide Exhibit RUS -20 (UKR) to Ukraine in one of the other formats set forth 
in paragraph  25(b) of the Working Procedures, namely, on a USB key, a CD -ROM or a DVD.  
1.20.   In an email message dated 18 May 2018, Russia complained that Ukraine had failed to file 
Exhibits UKR -106 (BCI) through UKR -115 in accordance with subparagraph (a) of the 
Panel's  invitation to the second substantive meeting dated 27 April 2018. Russia submitted that, 
owing to this failure, the Panel should not accept  and consider these exhibits. In a communication 
to the parties dated 22 May 2018, the Panel declined Russia's request, observing that while the 
electronic versions of the exhibits were not provided to Russia or submitted to the 
Dispute  Settlement Registry  until 18 May 2018, Ukraine had previously served paper copies of 
Exhibits UKR -106 (BCI) to UKR -115 on Russia and on the Panel on 15 May 2018, at the second 
substantive meeting. The paper copies of those exhibits constitute the official versions of those 
exhibits for purposes of the record of the dispute under paragraph 25(b) of the Working Procedures.  
1.21.   During the second substantive meeting on 15 May 2018, Russia alleged that Ukraine had 
untimely filed Exhibit UKR -106 (BCI) in a manner inconsistent with para graph 7 of the 
Working  Procedures. Russia rejected Ukraine's assertion that Exhibit UKR -106 (BCI) was "necessary 
for purposes of rebuttal" and requested, in a letter dated 13 June 2018, that the Panel strike 
Exhibit  UKR-106 (BCI) from the record. In a comm unication to the parties dated 23 July 2018, the 
Panel granted Russia's request, observing that, in the first round of arguments, Ukraine's arguments 
concerning the existence of the measures in question related to the legal existence of the measures 
in Rus sia's legal system without reference to any specific instances of application , 
i.e., Ukraine's  arguments related to the existence of the measures "as such ". At the second 
substantive meeting, Ukraine reiterated its "as such" argument while also submitting the contested 
exhibit concerning the application of the measure, in one instance, as evidence in support of its main 
argument. In the Panel's view, this did not make such evidence "necessary for the purposes of 
rebuttal" within paragraph 7 of the Working P rocedures. The Panel's ruling is set out in Annex B -3.  
2  FACTUAL ASPECTS  
2.1.  This dispute concerns various measures imposed by Russia on transit by road and rail through 
the territory of Russia, as well as the publication and administration of those measures. A dditional 
information concerning the measures and the factual background against which they were adopted 
is set forth in Section s 7.3 and 7.7 of this Report.  
3  PARTIES' REQUESTS FO R FINDINGS AND RECOM MENDATIONS  
3.1.   Ukraine requests that the Panel find that the measures at issue are inconsistent with 
Russia's  obligations under the first sentence of Article V:2, the second sentence of  Article V:2, Article WT/DS512/R  
 
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V:3, Article V:4 and Article V:5 of the GATT 1994, and with paragraph 2 of Part I of the Protocol of 
Accession  of the Russian Federation (Russia's Accession Protocol)13, which incorporates 
commitments in  paragraph 1161 of the Report of the Working Party on the Accession of the 
Russian  Federation to the WTO (Russia's Working Party Report)14; as well as Article  X:1 of the 
GATT  1994 and commitments in paragraph 1426 of Russia's Working Party Report , as incorporated 
into its Accession Protocol by reference ; Article X:2 of the GATT  1994 and commitments in 
paragraph  1428 of Russia's Working Party Report , as incorporated into its Accession Protocol by 
reference ; commitments in paragraph 1427 of Russia's  Working Party Report , as incorporated into 
its Accession Protocol by reference ; and Article X:3(a) of the GATT 1994. Ukraine further requests, 
pursuant to Article 19.1 of t he DSU, that the Panel recommend that Russia bring its measures into 
conformity with its WTO obligations.  
3.2.  Russia invokes Article XXI(b)(iii) of the GATT 1994 and requests the Panel, for lack of 
jurisdiction, to limit its findings to recognizing that Russia  has invoked a provision of Article XXI of 
the GATT 1994 , without engaging further to evaluate the merits of Ukraine's claims. Russia considers 
that the Panel lacks jurisdiction to evaluate measures in respect of which Article XXI of the 
GATT  1994 is invok ed. 
4  ARGUMENTS OF THE PAR TIES  
4.1.  The arguments of the parties are reflected in their executive summaries, provided to the Panel 
in accordance with paragraph 19 of the Working Procedures adopted by the Panel (see Annexes C -1 
and C -4). They are also reiterated w here relevant  in the Panel's analysis.  
5  ARGUMENTS OF THE THI RD PARTIES  
5.1.  The arguments of Australia, Brazil, Canada, China, the European Union, Japan, Moldova, 
Singapore, Turkey  and the United States are reflected in their executive summaries, provided in 
accordance with paragraph 20 of the Working Procedures adopted by the Panel (see Annexes D -1 
through D -10). Turkey made oral arguments to the Panel but did not submit written arguments. 
Bolivia, Chile, India, Korea, Norway, Paraguay and Saudi Arabia did not s ubmit written or oral 
arguments to the Panel.  
6  INTERIM REVIEW  
6.1.  The Panel issued its Interim Report to the parties on 29 January 2019. Both parties submitted 
written requests for review of precise aspects of the Interim Report on 14 February 2019. Neither 
party requested an interim review meeting. On 28 February 2019, both parties submitted written 
comments on each other's written requests for review.  
6.2.  The parties' requests made at the interim stage, as well as the Panel's discussion and 
disposition of those r equests , are set out in Annex E-1.  
7  FINDINGS  
7.1  Overview  of Ukraine's  complaints  
7.1.  Ukraine's main complaints may be succinctly stated as follows:  
a. Since  1 January 2016, Ukraine has not been able to use road or rail transit routes across 
the Ukraine -Russia border for all traffic in transit destined for Kazakhstan.  Rather, under 
Russian law, such traffic may only transit from Ukraine across Russia from the 
Belarus -Russia border, and is also subject to additional conditions related to identification 
seals and registration cards , both on entering and on leaving Russian territory, at specific 
control points on the Belarus -Russia border and the Russia -Kazakhstan border 
respectively. As of 1  July 2016, all traffic in transit destined for the Kyrgyz Republic has 
been subject to the same restrictions.  
                                                
13 WT/MIN(11)/24 and WT/L/839, dated 17 December 2011.  
14 WT/ACC/RUS/70 and WT/MIN(11)/2, dated 17 November 2011.  WT/DS512/R  
 
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b. Since  1 July 2016, traffic in transit by road and rail from Ukraine, which is destined for 
Kazakhstan and the Kyrgyz Republic, is not permitted to transit across Russia at all 
(i.e. not even via the Belarus -Russia border) for particular categories of goods. The 
categories of goods are: (i)  those subject to customs duties greater than zero according 
to the Common Customs Tariff of the Eurasian  Economic Union (EaEU), and 
(ii) goods  listed in an annex to Resolution No. 778 of the Government of the 
Russian  Federation (Resolution No. 778)15 and which originate in specific countries that 
have imposed economic sanctions on Russia .16 Although there is a procedure which 
exceptionally permits transit of these goods from Ukraine to Kazakhstan and to the 
Kyrgyz  Republic (through a derogation procedure involving a request by the Governments 
of Kazakhstan or the Kyrgyz Republic and an aut horization granted by 
Russian  authorities), it is unclear how this derogation procedure operates and to date, no 
such derogations have been granted.  
c. The transit restrictions referred to in paragraph 7.1(a) above, and the transit bans referred 
to in paragra ph 7.1(b) above, are also applied by Russian authorities to traffic in transit 
by road or rail from Ukraine which is destined not only for Kazakhstan and the 
Kyrgyz  Republic, but also for Mongolia, Tajikistan, Turkmenistan and Uzbekistan.  
d. Finally, as of 30  November 2014, transit from Ukraine of goods subject to veterinary 
surveillance which are listed in Resolution No. 778 is not permitted through Belarus. 
Rather, such goods with a final destination of Kazakhstan and third countries may transit 
across Russi a only from specific checkpoints on the Russian  side of the external customs 
border of the EaEU and only pursuant to permits issued by the relevant veterinary 
surveillance authorities of the Government of Kazakhstan and pursuant to permits issued 
by the Ru ssian Federal Service for Veterinary and Phytosanitary Surveillance 
(Rosselkhoznadzor ). Transit to third countries (including Kazakhstan) of plant goods which 
are listed in Resolution No. 778 shall also, as of 24 November 2014, take place exclusively 
through the checkpoints on the Russian state border.17 
7.2.  Ukraine claims that the above -referenced transit restrictions and bans are inconsistent with 
Russia's obligations under  Article V of the GATT 1994 and related commitments in 
Russia's  Accessi on Protocol. Ukraine also claims that Russia has failed to publish and administer 
                                                
15 Resolution No. 778  of the Government of the Russian Federation bans the importation of various 
agricultural products, raw material s and foodstuffs , as listed in the Resolution , which originate from the 
United  States, EU M ember States, Canada, Australia and Norway, which had imposed economic sanctions on 
Russia. (Resolution of the Government of the Russian Federation No. 778, "On meas ures for implementation of 
the Decree of the President of the Russian Federation No. 560 of 6 August 2014 'On the application of certain 
special economic measures to ensure security of the Russian Federation'", dated 7  August  2014, 
(Resolution  No. 778),  (Exhibits UKR -10, RUS -7).) 
16 On 13 August 2015, the import bans imposed by Resolution No. 778 were extended to the listed 
goods originating from Albania, Montenegro, Iceland, Liechtenstein and Ukraine. (See Resolution of the 
Government of the Russian Federat ion No. 842, "On  amendments to the Resolutions of the Government of the 
Russian Federation dated 7 August 2014 No. 778 and dated 31 July 2015 No. 774", dated 13 August 2015, 
(Resolution No. 842), (Exhibit UKR -13).) On 13 August 2015, the Russian Government  adopted 
Resolution  No. 842 which, among other things, amends Resolution No. 778 to add further countries to the list 
of countries whose exports are subject to the Resolution No. 778 import bans, including Ukraine. However, 
with respect to Ukraine, Resolut ion No. 842 provides that the import bans shall be applied as of 10 days from 
the date on which the Russian Government is notified of action by Ukraine to implement the economic part of 
the EU -Ukraine Association Agreement (referred to in Resolution of the  Russian Federation No. 959 
"On imposition of import customs duties in respect of goods, originating from Ukraine", dated 
19 September  2014, (Resolution No. 959), (Exhibit RUS -24)), but by no later than 1 January 2016. Another 
resolution of the Russian Gov ernment, enacted on 21  December 2015, specified that the import prohibitions in 
respect of the goods listed in Resolution No. 778 would apply to goods of Ukrainian origin as of 
1 January  2016.  (See Resolution of the Government of the Russian Federation  No. 1397, "On amendment of 
Item 1 of Resolution No. 778 of the Government of the Russian Federation dated 7 August 2014", dated 
21 December  2015, (Resolution No. 1397), (Exhibit UKR -15).) The duration of the import bans has been 
extended a numbe r of times, most recently by Resolution No. 790, which extends the import bans until 31 
December 2018. (See Resolution of the Government of the Russian Federation  No. 790, "On amendments to 
the Resolution of the Government of  the Russian Federation dated 7  August  2014 No. 778", dated 4 July 2017, 
(Resolution No. 790), (Exhibit UKR -70).) For other amendments t o Resolution No. 778, see fn 385  below.  
17 For an explanation of the measures as identified by Ukraine in its panel request and as subsequently 
identifi ed in its first written submission, see paras. 7.264 -7.275 below.  
 WT/DS512/R  
 
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various instruments through which these  measures are implemented in the manner required by 
Article X of the GATT  1994 and by commitments in Russia's Accession Protocol.  
7.2  Russ ia's response  
7.3.  Russia does not specifically address the factual evidence or legal arguments adduced by  
Ukraine in support of its substantive claims  under the GATT 1994 and Russia's Accession Protocol.  
Rather, Russia argues that certain claims and measures a re outside the Panel's  terms of reference, 
on the bases that: (a) Ukraine's panel request does not comply with the requirements of Article 6.2 
of the DSU , and (b) Ukraine has failed to establish the existence of one of the challenged measures.  
7.4.  Principally , however,  Russia asserts that the measures are among those that Russia considers 
necessary for the protection of its essential security interests, which it took, "[i]n response to the 
emergency in international relations that occurred in 2014 th at presented threats to the 
Russian  Federation's essential  security interests ".18 Russia invokes the provisions of 
Article  XXI(b)(iii) of the GATT 1994, arguing that, as a result, the Panel lacks jurisdiction to further 
address the matter. Accordingly, Russ ia submits that the Panel should limit its findings in this dispute 
to a statement of the fact that Russia has invoked Article  XXI(b)(iii), without further engaging  on 
the substance of Ukraine's claims.19  
7.3  Factual background  
7.5.  The issues that arise in this di spute must be understood in the context of the serious 
deterioration of relations between Ukraine and Russia that occurred following a change in 
government in Ukraine in February 2014. Both parties have avoided referring directly to this change 
in governme nt and to the events that followed it. It is not this Panel's function to pass upon the 
parties' respective legal characterizations of those events, or to assign responsibility for them, as 
was done in other international fora. At the same time, the Panel considers it important to situate 
the dispute in the context of the existence of these events.  
7.6.  Ukraine had, since 18 October 2011, been a party to the Treaty on a Free Trade Area between 
the members of the Commonwealth of Independent States (CIS -FTA)20, with Russia, Belarus, 
Kazakhstan, the Kyrgyz Republic, Tajikistan, Moldova and Armenia.21 On 29 May 2014, Russia, 
Belarus and Kazakhstan signed the Treaty on the Establishment of the Eurasian Economic Union 
(EaEU Treaty)22, with Armenia and the Kyrgyz Republic joining in January and August of 2015, 
respectively. The EaEU Treaty entered into force on 1 January 2015.23  
7.7.  While it took part in the initial negotiations to establish the EaEU,  Ukraine decided,  following 
on the " Euromaidan  events ", not to join the EaEU Treaty. Instead, it elected to seek economic 
integration with the European Union.24 Accordingly, on 21 March 2014, the newly sworn -in Ukrainian 
Government signed the political part of the "Association Agreement between the European Union 
and its Mem ber States, of the one part, and Ukraine, of the other part" (EU -Ukraine Association 
Agreement).25 The objectives of the EU -Ukraine Association Agreement are to facilitate Ukraine's 
closer political and economic integration with Europe.26 The economic part o f the EU -Ukraine 
                                                
18 Russia's first written submission, paras. 16, 19, 33 and 74; and closing statement at the first meeting 
of the Panel, para. 6.  
19 Russia's opening statement at the first meeting of the Pane l, paras. 45 -47. 
20 Treaty on a Free Trade Area between the members of the Commonwealth of Independent States , 
done at St Petersburg, 18 October 2011 , retrieved from : 
http://rtais.wto.org/rtadocs/762/TOA/English/FTA%20CIS_Text%20with%20protocols.docx . 
21 Ukraine's first written submission, para. 19. The CIS -FTA entered into force on 20 September 2012. 
(Ibid.)  
22 Treaty on the Establishment of the Eurasian Economic Union, done at Astana, 29 May 2014, retrieved 
from: https://www.wto.org/english/thewto_e/acc_e/ka z_e/WTACCKAZ85_LEG_1.pdf , (Exhibit UKR -58). 
23 Ukraine's first written submission, para. 21.  
24 Ibid. paras. 16, 20 and 24.  
25 Association Agreement between the European Union and its Member States, of the one part, and 
Ukraine, of the other part, O fficial Journal  of the European Union, L 161, Vol. 57,  29 May 2014 , ISSN 
1977-0677, (EU-Ukraine Association Agreement), (Exhibit UKR -111), p. 170 . See also Ukraine's first written 
submission, para. 24.  
26 EU-Ukraine Association Agreement, (Exhibit UKR -111), p. 6 . 
 WT/DS512/R  
 
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Association Agreement provides for a Deep and Comprehensive Free Trade Area (DCFTA) between 
the European Union and Ukraine.27 This part of the EU -Ukraine Association Agreement was signed 
on 27 June 2014.  
7.8.  In March 2014, Ukraine, along with c ertain other countries, introduced a resolution in the 
General Assembly  of the United Nations (UN General Assembly) , which  welcomed the continued 
efforts by the UN  Secretary -General and the Organization for Security and Cooperation in Europe, 
as well as ot her international and regional organizations, to support "de -escalation of the situation 
with respect to Ukraine ".28 The UN General Assembly recalled " the obligations of all S tates under 
Article 2 of the Charter to refrain in their international relations f rom the threat or use of force 
against the territorial integrity or  political independence of any S tate, and to settle their international 
disputes by peaceful means ".29 A subsequent UN General Assembly Resolution in December 2016 
condemned the "temporary o ccupation of part of the territory of Ukraine", i.e. the "Autonomous 
Republic of Crimea and the city of Sevastopol " by the Russian Federation, and reaffirmed the 
non-recognition of its "annexation ".30 This resolution makes explicit reference to the 
Geneva  Conventions of 1949, which apply in cases of declared war or other armed conflict between 
High Contracting Parties.31  
7.9.  The events in Ukraine in 2014 were followed by  the imposition of economic sanctions against 
Russian  entities and persons by certain countries.  
7.10.   On 7 August 2014, Russia impos ed import bans on specified agricultural products, raw 
materials and food originating from countries that had imposed sanctions against it (initially, the 
United States, European Uni on Member States, Canada, Australia and Norway).32 Russia also 
imposed certain restrictions in connection with the transit of goods subject to these import bans, 
prohibiting their transit through Belarus, and permitting their transit across Russia only thro ugh 
                                                
27 The DCFTA is contained in Title IV of the EU -Ukraine Association Agreement.  (EU-Ukraine Association 
Agreement, (Exhibit UKR -111), pp. 13 -137.) This part of the EU -Ukraine Association Agreement provides for 
the progressive formation of a free trade area covering goods and services. (Ibid. Article 25, p.  13.) In its 
opening stateme nt at the second meeting of the Panel, Ukraine explains that the "economic part" of the EU -
Ukraine Association Agreement contains a "free trade agreement establishing the Deep and Comprehensive 
Free Trade Area (DCFTA)". (Ukraine's opening statement at the second meeting of the Panel, para. 60.) The 
Panel refers to the DCFTA unless it specifically means the economic part of the EU -Ukraine Association 
Agreement.  
28 UN General Assembly Resolution No. 68/262 "Territorial Integrity of Ukraine", 27 March 2014, 
A/RES/68/262, (UN General Assembly Resolution No. 68/262, 27 March 2014), (Exhibit UKR -89), p. 2.  This 
Resolution —introduced by Ukraine, Germany, Poland, Lithuania, Canada and Costa Rica —was supported by 
100 UN Member States, with 11 voting against (including  Russia), 58 abstentions and 24 absent. (UN General 
Assembly Official Records, A/68/PV.80, 80th meeting, 27 March 2014, p. 17.)  
29 UN General Assembly Resolution No. 68/262, 27 March 2014, (Exhibit UKR -89), p. 1.  
30 UN General Assembly Resolution No. 71/205 "Situation of Human Rights in the Autonomous Republic 
of Crimea and the city of Sevastopol (Ukraine)", 19 December 2016, A/RES/71/205, (UN General Assembly 
Resolution No. 71/205, 19 December 2016), (Exhibit UKR -91). This Resolution received 70 votes in fav our, 
26 against (including Russia) and 77 abstentions. (UN General Assembly Official Records, A/71/PV.65, 
19 December 2016, pp. 40 -41.) 
31 Ibid. p. 2. The specific reference is to the prohibitions on the occupying Power compelling protected 
persons to serve  in its armed or auxiliary forces. (See Article 130 of the Convention relative to the Treatment 
of Prisoners of War, done at Geneva, 12 August 1949, UN Treaty Series, Vol. 75, p. 135; and Article 147 of the 
Convention relative to the Protection of Civilian  Persons in Time of War, done at Geneva, 12 August 1949, UN 
Treaty Series, Vol. 75, p.  287.)  
32 These import bans are imposed by Resolution No. 778, (Exhibits UKR -10, RUS -7). The import bans 
had been authorized by the President of the Russian Federation the  previous day through Decree of the 
Preside nt of the Russian Federation No. 560, "On the application of certain special economic measures to 
ensure the security of the Russian Federation", dated 6 August 2014, (Decree No. 560), (Exhibits UKR -9, 
RUS-3). Decree No. 560 established the original parameters for the Russian Government to impose import 
bans on certain agricultural products, raw materials and foodstuffs originating in the countries that had decided 
to impose economic sanctions against Russian legal  entities or individuals, or joined in such a decision. 
Decree  No. 560 was subsequently extended by Decree No. 320 of 24 June 2015, Decree No. 305 of 
29 June 2016 and Decree No. 293 of 30 June 2017. Decree No. 560 was in force until 31  December  2018. 
(Decr ee of the President of the Russian Federation No. 293, "On extending certain special economic measures 
in the interest of ensuring the security of the Russian  Federation", dated 30 June 2017 , (Decree No. 293), 
(Exhibit UKR -71).) Both parties advised in the  interim review stage that Decree No. 560 has since been further 
extended until 31 December 2019 by Decree No. 420, which was adopted by the President of the 
Russian  Federation on 12 July 2018.  
 WT/DS512/R  
 
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designated checkpoints on the Russian side of the external border of the EaEU. These 2014 transit 
restrictions are among those challenged by Ukraine in this dispute.33 
7.11.   In September 2014, following discussions with Russia, both the European Union and Ukr aine 
agreed to postpone the application of the economic part of the EU -Ukraine Association Agreement 
until 31 December 2015.34 Also in September 2014, the Russian Government adopted 
Resolution  No. 959, which provided that Ukrainian goods would be subject to  tariffs at the EaEU 
rates as of  10 days from the date on which the Russian Government was notified of action by Ukraine 
to implement the economic part of the EU -Ukraine Association Agreement .35  
7.12.   On 13 August 2015, the Russian Government adopted Resolution No. 842 which, among other 
things, amend ed Resolution No. 778 to add further countries to the list of countries whose ex ports 
are subject to the Resolution No. 778 import bans, including Ukraine. However, with respect to 
Ukraine, Resolution No. 842  provide d that the import bans would be applied from the effective date 
of Resolution No. 959  (referred to above) , but no later than 1 January 2016.36 Subsequent 
negotiations between the European Commission, Ukraine and Russia, aimed at achieving solutions 
to Russi a's concerns about the DCFTA, had failed by December 2015.37 On 21 December 2015, the 
Russian Government adopted Resolution No. 1397, which provided that the import bans in respect 
of the goods listed in Resolution No. 778 would apply to goods of Ukrainian origin as of 
1 January  2016.38 The European Union and Ukraine have provisionally applied the DCFTA as of 
1 January 2016.39 
7.13.   In response to the provisional application by the European Union and Ukraine of the economic 
part of the EU -Ukraine Association Agreeme nt, the Russian State Duma  passed a law  on 
22 December 2015 , effective as of 1 January 2016, purporting to suspend the CIS -FTA with respect 
to Ukraine.40 The Russian State Legal Department stated that Russia's suspension of the CIS -FTA 
with respect to Ukraine was due to the entry into force of the economic part of the 
EU-Ukraine  Association Agreement  "without reaching a legally binding agreement that would meet 
                                                
33 See p ara. 7.1.d above. 
34 RBK, "Putin suspended the free trad e agreement with Ukraine", dated 16 December 2015, available 
at: http://www.rbc.ru/politics/16/12/2015/ 567178fe9a7947944e73b0a4,  (RBK article), (Exhibit UKR -80); and 
Press Release, "The trade part of the EU -Ukraine Association Agreement becomes operational  on 
1 January  2016", dated 31 December 2015, European Commission, available at: http://europa.eu/rapid/press -
release_IP -15-6398_en.htm (European Commission Press Release), (Exhibit UKR -53). As stated above in fn 
27, the "economic part" of the EU-Ukraine Association Agreement contains a free trade agreement establishing 
the DCFTA. (See Ukraine's opening statement at the second meeting of the Panel, para. 60.) The EU -Ukraine 
Association Agreement entered into force on 1 September 2017, following the deposit of the last instrument of 
ratification or approval. (See Official Journal of the European Union L 193/1, 25 July 2017.) In  October  2015, 
the Russian Prime Minister was reported as stating that Russia's position was that Ukraine could not 
simult aneously participate in free trade areas with both Russia and the European Union. Russia  considered that 
this situation would pose a threat of re -export of European goods in the guise of Ukrainian goods. (RBK article, 
(Exhibit  UKR-80).)  
35 Resolution No. 9 59, (Exhibit RUS -24), p. 2. A Ukrainian news agency report in December 2015 also 
referred to statements by the Russian Prime Minister that, if Ukraine chose to belong to a trade zone different 
from the CIS -FTA, it would lose the zero -tariff benefits of the  FTA with Russia and that, as of 1 January 2016, 
tariffs on imports into Russia of Ukrainian goods would be 6% on average.  (UNIAN Information Agency, "Putin 
signed and amended the law on the suspension of the FTA with Ukraine", dated 30 December 2015 , avai lable 
at: https://economics.unian.net/finance/1226612 -putin-podpisal -zakon -o-priostanovlenii -zst-s-ukrainoy.html,  
(UNIAN Information Agency Article), (Exhibit UKR -78).) 
36 Resolution No. 842, (Exhibit UKR -13). 
37 RBK article, (Exhibit UKR -80); and UNIAN Info rmation Agency Article, (Exhibit UKR -78). 
38 Resolution No. 1397, (Exhibit UKR -15). 
39 Ukraine's first written submission, para. 25. Ukraine refers to the European Commission Press 
Release, (Exhibit UKR -53). The political part of the EU -Ukraine Association A greement, which was signed on 
21 March 2014, has been provisionally applied since 1 November 2014.  (Notice concerning the provisional 
application of the Association Agreement between the European Union and the European Atomic Energy 
Community and their Mem ber States, of the one part, and Ukraine, of the other part, Official Journal of the 
European Union, L 311/1, 31 October 2014, (Exhibit UKR -112).)  
40 Federal Law No. 410 -FZ of the Russian Federation, " On Suspending by the Russian Federation of the 
Treaty on  a Free Trade Area with respect to Ukraine ", dated 30 December 2015, (Exhibit UKR -47); and 
Decree  of the President of the Russian Federation No. 628, "About suspension of validity by the 
Russian  Federation of the free trade area concerning Ukraine", dated 16 December 2015, (Exhibit UKR -76). 
See also UNIAN Information Agency Article, (Exhibit UKR -78).  
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the interests of Russia"  and the fact that "such an  act constitutes a fundamental change of 
circumstances, which were essential for Russia at the conclusion of the [CIS -FTA]."41  
7.14.   Russia is also alleged by Ukraine to have banned imports of various Ukrainian goods since 
2013, according to a request for consul tations filed by Ukraine in October 201742, in connection with 
the following alleged Russian measures:  
a. a general ban on the importation of Ukrainian juice products, including baby food (since 
July 2014);  
b. a ban on the importation of alcoholic beverages, beer  and beer beverages produced by 
three Ukrainian producers (since August 2014);  
c. a ban on the importation of confectionary products produced by a specific confectionary 
producer (since July 2013) as well as a more general ban on imports of all 
Ukrainian  confectionary products (since September 2014); and  
d. a ban on the importation of wallpaper and wall coverings produced by four 
Ukrainian  producers (since April 2015).43  
7.15.   In the same request for consultations, Ukraine also challenges what it refers to as transit bans 
on Ukrainian juice products and confectionary products, which are said to apply as a result of the 
import bans, "separately and in addition to" the transit bans at issue in this dispute, which also affect 
the same products.44  
7.16.   Also, as of 1 January 201 6, Russia:  
a. imposed customs duties at the EaEU rates on imports of goods from Ukraine45;  
b. included goods of Ukrainian origin within the import bans on agricultural products, 
raw materials and food that it had  imposed since August 2014 under Resolution No. 7 78 
in response to countries that had imposed sanctions against it46; and  
c. imposed certain restrictions and bans  on transit , namely: (i) restrictions on transit by road 
and rail from Ukraine, destined for Kazakhstan (and subsequently, for the 
Kyrgyz  Republic) , requiring that such transit  from Ukraine across  Russia may occur only 
from Belarus  and subject to additional conditions related to identification seals and 
registration cards , both on entering and on leaving Russian territory , at specified control 
points on the Belarus -Russia border and the Russia -Kazakhstan border, respectively47; 
and (ii) "temporary " bans on transit by road and rail from Ukraine of:  
i. goods which are subject to non -zero import duties according to the 
Common  Customs  Tariff of the EaEU; and  
                                                
41 Print-screen of the website of the President of the Russian Federation, "The law on suspension of the 
FTA Agreement with Ukraine is signed", dated 30 Decemb er 2015, available at : kremlin.ru/acts/news/51091,  
(Exhibit UKR -84). See also fn 34 above.  
42 WT/DS532/1, dated 19 October 2017. The Panel refers to Ukraine's request for consultations in 
WT/DS532/1 solely as factual background but does not link it to Ukrai ne's complaint in the present dispute. 
(See Article 3.10 of the DSU).  
43 See WT/DS532/1, dated 19 October 2017,  paras. 1, 13, 16, 23, 34, 48 and 55. The alleged 
WTO-inconsistencies include Articles I:1, V, X and XI:1 of the GATT 1994, various provisions of the 
Agreement  on Technical Barriers to Trade (TBT  Agreement), provisions of Russia's Accession Protocol, and the 
Agreement  on Trade Facilitation. (Ibid.  paras. 13, 15, 22, 31, 33, 43, 45, 47, 54, 65 and 67.)  
44 WT/DS532/1, dated 19 October 2017, paras. 17 a nd 49.  
45 Resolution No. 959, (Exhibit RUS -24). 
46 Resolution No. 1397, (Exhibit UK R-15). 
47 See para. 7.1.a above.  
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ii. goods which fall within the scope of the import bans on agricultural products, 
raw materials and food imposed pursuant to Resolution No. 778, which are destined 
for Kazakhstan or the Kyrgyz Republic.  
7.17.   The 2016 transit restric tions and bans in item (c) above are among the measures that are 
challenged by Ukraine  in this dispute .48  
7.18.   Russia, for its part,  has separately allege d that Ukraine has imposed economic sanctions 
against Russia since 2015 , as is evident from the following:  
a. A request for consultations filed by Russia in May 201749, which alleges that Ukraine has 
imposed import bans o n Russian food products, spirits and beer, cigarettes, railway and 
tram track equipment, diesel -electric locomotives, chemicals and certain plant products , 
which were allegedly adopted by Ukraine on 30 December 2015.50 The consultations 
request also covers a  number of other measures allegedly adopted by Ukraine in 2016, 
including : (i) restrictions on the importation or distribution of printed materials, 
motion  pictures, TV programs and other video products originating from Russia51; 
(ii) the exclusion of Russi an-used vehicles from an excise duty reduction on used 
vehicles52; (iii) a number of personal , economic , and other sanctions in respect of Russian 
persons (e.g. preventing movement of capital from Ukraine in respect of legal entities with 
Russian  shareholdi ng, blocking of assets, bans on doing business)53; and 
                                                
48 See para. 7.1.b above.  
49 WT/DS525/1, dated 1 June 2017.  The alleged WTO -inconsistencies include Articles I:1, III:4, X and 
XI:1 of the GATT 1 994; Articles II, III, XI, XVI and XVII of the General Agreement on Trade in Services 
(GATS); and various provisions of the Agreement  on Import Licensing Procedures (Import Licensing 
Agreement), the Agreement on the Application of Sanitary and Phytosanitar y Measures (SPS Agreement) and 
the TBT Agreement as well as aspects of Ukraine's WTO Accession Protocol. (Ibid. paras. 2 and 4 -8.) The Panel 
refers to Russia's request for consultations in WT/DS525/1 solely as factual background but does not link it to 
Ukraine's complaint in the present dispute. (See Article 3.10 of the DSU.)  
50 WT/DS525/1, p. 1. Russia refers in its consultations request to Resolution of the Cabinet of Ministers 
of Ukraine No. 1147 , "On the prohibition of importation of products originating in the Russian Federation into 
the customs territory of Ukraine", dated 30 December 2015 , (Exhibit RUS -19), as amended; and Resolution 
No. 28 of 20 January 2016 "On Amendments to the List of Goods  Originating in the Russian Federation and 
Prohibited for Imports into Ukraine", which has not been submitted as an exhibit in this dispute. (Ibid. p. 1.)  
51 Ibid. pp. 2 and 7. Russia's consultations request refers to Law No. 1780 -VII of 8 December 2016, 
"On Amendments to Certain Laws of Ukraine in relation to Restricting Access to Foreign Printed Materials with 
Anti-Ukrainian Content to the Ukrainian Market" and Law No. 159 -VIII of Ukraine, dated 5 February 2015 and 
Law No. 1046 -VIII of Ukraine, dated 29 Ma rch 2016 "On Amendments to Article 15 -1 of Law of Ukraine 
"On Cinematography"". (Ibid.)  
52 Ibid. pp. 3 -4. Russia's consultations request refers to Law No. 1389 -VIII of 31 May 2016, 
"On Amendments to Subsection 5 of Section XX "Transitional Provisions" of th e Tax Code of Ukraine regarding 
the Promotion of Development of the Used Vehicles Market". (Ibid. p. 3.)  
53 Ibid. pp. 4 -7. Russia's consultations request refers to (a)  Resolution  No. 829-R of the Cabinet of 
Ministers of Ukraine, dated 11 September 2014, "On  Proposals for application of Personal Special and Other 
Restrictive Measures"; (b) Law No. 1005 -VIII of 16 February 2016 "On Enactment of Certain Laws of Ukraine 
Aimed at the Improvement of the Privatization Process"; (c)  Decree  No. 756 of the Ministry of  Economic 
Development and Trade of Ukraine, dated 28 April 2016, "On  Application of Special Economic Sanctions – 
Temporary Suspension of Foreign Economic Activity within the Territory of Ukraine – In Respect of Foreign 
Economic Entities"; (d) Decree No. 63 /2017 of the President of Ukraine, dated 16 March 2017, "On Decision of 
the National Security and Defence Council of Ukraine of 15  March 2017 'On Application of Personal Special 
Economic and other Restrictive Measures (Sanctions)'"; (e)  Resolution No. 12 o f the Board of the National Bank 
of Ukraine, dated 21 February 2017, "On Amendments to Certain Regulations of the National Bank of Ukraine"; 
(f) Resolution No. 25 of the National Bank of Ukraine, dated 21 March 2017, "On Amendments to Resolution of 
the Nat ional Bank of Ukraine of 1 October 2015 No.  654"; and (g) Resolution No. 399 of the National Bank of 
Ukraine, dated 1 November 2016, "On  Amendments to Resolution [of] the National Bank of Ukraine of 1 
October 2015 No. 654". Russia's consultations request a lso refers to Decree No. 133/2017 of the President of 
Ukraine, dated 15 May 2017, "On  Decision of the National Security and Defence Council of Ukraine of 28 April 
2017 "On Application of Personal Special Economic and Other Restrictive Measures (Sanctions)" ". 
(WT/DS525/1, pp. 4 -7.) In its second written submission in this dispute, Russia refers to Decree of the 
President of Ukraine No. 133/2017, "On  the Decision of the National Security and Defense Council of Ukraine 
'On application of personal special econo mic and other restrictive measures (sanctions) '", dated 28 April 2017 , 
(Exhibit RUS -20). Russia states that this Decree contains a consolidated list of special economic measures 
(i.e. sanctions) applied by Ukraine in respect of Russian legal and natural pe rsons. (Russia's second written 
submission, para. 28.)  
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(iv) the suspension of accreditation of journalists and representatives of certain Russian 
mass media.54  
b. Russia's  contentions  that Ukraine has restricted transit of banned Russian goods through 
desig nated checkpoints at the Russia -Belarus  border.55 
c. Russia's contentions  that sanctions imposed by Ukraine in respect of Russia have 
expanded in 2018, with Ukraine allegedly banning the  exportation of certain Ukrainian civil 
aviation products, among other things.56 
7.19.   Russia also asserts that Ukraine suspended traffic through certain railway corridors on the 
Ukraine -Russia border in June 2014, and suspended traffic through certain checkpoint s on the 
Ukraine -Russia border in May and July of 2014 and then in February 2015.57  
7.4  Order of analysis  
7.20.   This is the first dispute in which a WTO dispute settlement panel is asked to interpret  
Article  XXI of the GATT 1994 (or the equivalent provisions in the General Agreement on Trade in 
Services  (GATS) and the Agreement on Trade -Related Aspects of Intellectual Property Rights  
(TRIPS  Agreement )).58 
7.21.   Ukraine presents its case as an ordinary trade dispute in which Russia has imposed measures 
that are inconsistent with certain of its obligations under the GATT 1994 and commitments in  
Russia's  Accession Protocol.  
7.22.   Russia, on the other hand, considers that the dispute involves obvious and serious national 
security matters that Members have acknowledged should be kept out of the WTO, an organizat ion 
which is not designed or equipped to handle such matters. Russia cautions that involving the WTO 
in political and security matters will upset the very delicate balance of rights and obligations under 
the WTO  Agreements and e ndanger the multilateral trading system.  
7.23.   Consistent with this position, Russia does not present arguments or evidence to rebut 
Ukraine's specific claims of inconsistency with Articles V and X of the GATT 1994, or commitments 
in Russia's  Accession Protocol . Russia's case is confined to  arguments that certain measures and 
claims  are outside the Panel's terms of reference, and its overarching argument that the Panel lacks 
                                                
54 WT/DS525/1, dated 1 June 2017, p. 7. Russia's consultations request refers to 
Resolution  No. 185-VIII of the Verhovna Rada, "On the Temporary Accreditation Suspension of Journalists and 
Representativ es of Certain Russian Mass Media by Public Authorities", dated 12 February 2015. (Ibid.)  
55 Russia's second written submission, para. 27 (referring to Resolution of the Cabinet of Ministers of 
Ukraine No. 20, "On approval of the list of checkpoints through the state border of Ukraine, through which the 
goods are imported in transit mode", dated 20 January 2016, (Exhibit RUS -16).) 
56 Ibid. para. 29 (referring to Decree of the President of Ukraine No. 58/2018, "On the decision of the 
Ukrainian National Security  and Defense Council 'Urgent measures on security of the national interests of the 
state in the sphere of aircraft engine building '", dated 1 March 2018,  (Exhibit  RUS-22); and Decree of the 
President of Ukraine No. 57/2018, "On entry into force of the Deci sion of the Council on National Security and 
Defense of Ukraine of 1 March 2018 'On application of personal special economic and other restrictive 
measures (sanctions)'", dated 6 March 2018, (Exhibit RUS -23)). 
57 Ibid. para. 25. Ukraine suspended traffic th rough railway corridor 8 "Chervona Mohyla" (or 
"Krasnaya  Mogila") by way of a telegram from the Ukrainian railway company Ukrzaliznytsia , in which the 
latter invoked Article 29 of the Railway Code of Ukraine, on the basis of "force majeure circumstances ". 
(Ibid. (referring to " Telegram of "Ukrzaliznytsia " (Ukrainian Railways)  No. CZM -14/946", dated 6 June 2014 , 
(Exhibit RUS -14).) Ukraine suspended traffic through the Izvaryne checkpoint by the Ministry of Revenue and 
Duties of Ukraine. ( Ibid. (referring to "Print-screen of the website of the State Border Guard Service of 
Ukraine ", retrieved from: https://dpsu.gov.ua/ua/news/na -lyganshhini -stvorjujutsja -zagoni -prikordonnoi -
samooboroni/ , (Exhibit RUS -15).) Ukraine suspended traffic through the checkpoint Uspen skaya -Kvashino in 
accordance with the telegram of Ukrzaliznytsia , also on the basis of "force majeure circumstances ". (Ibid. 
(referring to " Telegram of 'Ukrzaliznytsia ' (Ukrainian Railways)  No. CZM -14/1134 ", dated 8 July 2014 , 
(Exhibit  RUS-18).) Finally, the Cabinet of Ministers of Ukraine suspended traffic through 23 checkpoints on the 
Ukrain e-Russia  border. ( Ibid. (referring to Regulation of the Cabinet of Ministers of Ukraine  No. 106 -r, "On the 
closure of checkpoints across the state border" , dated 18 February  2015, (Exhibit RUS -17).) 
58 See Article XIV bis of the GATS and Article 73 of the TRIPS  Agreement . 
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jurisdiction to address any of the issues in this dispute owing to Russia's invocation of 
Article  XXI(b)(iii) of the GATT 1994.  
7.24.   The novel and exceptional feature s of this dispute , including Russia's argument that the Panel 
lacks jurisdiction to evaluate the WTO -consistency of the measures , owing to Russia's  invocation of 
Article XXI(b)(iii)  of the GATT 1994 , require that the Panel first determine  the order of anal ysis that 
it deems  most appropriate for the present dispute .59 Accordingly, the Panel considers  that it must 
address the jurisdictional issues first before go ing into the merits.  
7.25.   The Panel must therefore determine , first,  whether it has jurisdiction to rev iew 
Russia's  invocation of Article XXI(b)(iii) of the GATT 1994.60 If the Panel finds that it does not, then 
it will be unable to make findings on Ukraine's claims of inconsistency with Articles V and X of the 
GATT 1994 and with commitments in Russia's Acce ssion Protocol.  
7.26.   As the Panel explains in greater detail in Section 7.5.3 below, Russia's argument that the 
Panel lacks jurisdiction to address the matter is based on its interpretation of Article XXI(b)(iii) of 
the GATT 1994, i.e. as being totally "self-judging ". Consequently, in order to address 
Russia's  jurisdictional objection, the Panel must first interpret Article XXI(b)(iii) of the GATT 1994.  
7.5  Russia's invocation of Article XXI(b)(iii) of the GATT 1994  
7.5.1   Main arguments of the parties  
7.27.   Russia  asserts that there was an emergency in international relations that arose in 2014, 
evolved between 2014 and 2018, and continues to exist.61 Russia asserts that this emergency 
presented threats to Russia's essential security interests.62 Russia  argues that, under 
Article  XXI(b)(iii), both the determination of a Member's essential security interests and the  
determination of whether any action is necessary for the protection of a Member's essential security 
interests are at the sole discretion of the Member inv oking the provision.63  
7.28.   While Russia acknowledges that the Panel was established with standard terms of reference 
under Article 7.1 of the DSU64, it argues that the Panel nevertheless lacks jurisdiction to evaluate 
measures taken pursuant to Article XXI of t he GATT 1994.65 In Russia's view, the explicit wording 
of Article XXI confers sole discretion on the Member invoking this Article to determine the necessity, 
form, design and structure of the measures taken pursuant to Article XXI.66 Russia considers that 
                                                
59 The Appellate Body has stated that panels are free to structure the order of their analysis as they see 
fit, unless there is a "mandatory se quence of analysis which, if not followed, would amount to an error of law" 
or would "affect the substance of the analysis itself". (Appellate Body Report, Canada – Wheat Exports and 
Grain Imports , para. 109. See also Appellate Body Reports, Canada – Renew able Energy / Canada  – Feed-in 
Tariff Program , para. 5.5.)  
60 See also Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 36.  
61 Russia's first written submission, para. 16; and opening statement at the second meeting of the 
Panel, para. 2 6. 
62 Russia's first written submission, para. 16.  Russia characterizes the situation that gave rise to the 
need to impose the transit measures at issue in this dispute as an internationally wrongful act, or an unfriendly 
act of a foreign state or its bodie s and officials, which involved unilateral actions applied in respect of Russia, 
particularly by the European Union and Ukraine "in violation of the UN Charter and that are impairing the 
authority of the UN Security Council".  (Russia's second written submi ssion, paras. 19 and 21.)  Russia also 
maintains that the original circumstances that led to the imposition of the challenged measures "were publicly 
available and known to Ukraine".  (Russia's opening statement at the first meeting of the Panel, para. 30. 
See also Russia's second written submission, para. 18.)  
63 Russia's first written submission, para. 47; and closing statement at the first meeting of the Panel, 
para. 16. See also Russia's opening statement at the second meeting of the Panel, paras. 22 -23; and response 
to Panel question No. 1 after the second mee ting of the Panel, paras. 1 -3. 
64 Russia's opening statement at the first meeting of the Panel, para. 45.  Moreover, Russia alleges that 
certain measures and claims are outside the Panel's terms of reference owing to alleged defects in Ukraine's 
panel reques t and in Ukraine's demonstration of the existence of certain measures. (See ibid. paras. 6 -28.) 
65 Russia's opening statement at the first meeting of the Panel, para. 46. See also Russia's first written 
submission, para. 7.  
66 Russia's opening statement at t he first meeting of the Panel, para. 46.  
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the issues that arise from its invocation of Article XXI(b)(iii) go beyond the scope of trade and 
economic relations among Members and are outside the scope of the WTO:  
[T]he WTO is not in a position to determine what essential security interests of a 
Member  are, what actions are necessary for protection of such essential security 
interests, disclosure of what information may be contrary to the essential security 
interests of a Member, what constitutes an emergency in international relations, and 
whether such  emergency exists in a particular case.67  
7.29.   Russia regards Article XXI(b) of the GATT 1994 as preserving the "right" of each Member to 
react to wars and other emergencies in international relations in the way that the Member itself 
considers necessary. Any o ther interpretation of Article XXI(b) would "result in interference in [the] 
internal and external affairs of a sovereign state ".68 Accordingly, it is sufficient for a Member to state 
that the measures taken are actions that it considers necessary for the p rotection of its 
essential  security interests, taken in time of war or other emergency in international relations. 
A Member's subjective assessment cannot be "doubted or re -evaluated by any other party"  or 
judicial bodies as the measures in question are no t ordinary trade measures regularly assessed by 
WTO panels.69  
7.30.   Russia therefore submits that the Panel should limit its findings to recognizing that Russia has 
invoked Article XXI of the GATT 1994, "without engaging in any further exercise, given that this 
panel lacks jurisdiction to evaluate measures taken with a reference to Article XXI of the GATT ".70  
7.31.   Ukraine  interprets Article XXI of the GATT 1994 as laying down an affirmative defence for 
measures that would otherwise be inconsistent with GATT obligation s.71 Ukraine rejects the notion 
that Article XXI provides for an exception to the rules on jurisdiction  laid down in the GATT 1994 or 
the DSU.72 Ukraine considers that the Panel has jurisdiction to examine and make findings and 
recommendations with respect t o each of the provisions of the covered agreements cited by either 
Ukraine or Russia, in keeping with the Panel's terms of reference under Article 7 of the DSU and the 
general standard of review under Article 11 of the DSU.73 Ukraine also considers that, if  Article XXI 
of the GATT 1994 were non -justiciable, it would imply that in a dispute involving a measure that is 
WTO-inconsistent, the invoking Member, rather than a panel, would decide the outcome of the 
dispute by determining that the WTO -inconsistent me asure is nonetheless justified. In 
Ukraine's  view, such unilateral determination by an invoking Member would be contrary to 
Article  23.1 of the DSU.74   
7.32.   Ukraine argues that Russia, by merely referring to an emergency in international relations 
that occurred in 2014, fails to discharge its burden to show the legal and factual elements of a 
defence under Article XXI(b)(iii) of the GATT 1994, namely, that there was a  serious disruption in 
international relations constituting an emergency that is alike a war that is sufficiently connected to 
Russia so as to result in a genuine and sufficiently serious threat to its essential security interests 
and therefore to justify each and every measure at issue as being necessary to protect those 
                                                
67 Russia's closing statement at the first meeting of the Panel, para. 6. Russia also argues that the 
Panel, and the WTO more generally, "being trade mechanisms are not in a position to determine whether 
sovereign s tates are at war. Similar logic applies to 'other emergency in international relations'. Only sovereign 
states may declare the status of their relations with other sovereign states." (Ibid. para. 13.)  
68 Ibid. para. 12.  
69 Russia's opening statement at the s econd meeting of the Panel, para. 23. See also Russia's second 
integrated executive summary, para. 31. Russia therefore considers that Article XXI(b) of the GATT 1994, as 
well as Article XXI(a) are "self -judging". (Russia's closing statement at the first m eeting of the Panel, 
para. 11.) 
70 Ibid. para. 20.  
71 Ukraine's opening statement at the first meeting of the Panel, para. 95. Ukraine points to the fact that 
the phrase "[n]othing in this Agreement", which introduces Article XXI, is the same phrase that int roduces the 
general exceptions provision in Article XX. (Ibid.)  
72 Ibid. para. 96. Ukraine also notes that the DSU does not contain a provision providing for a security 
exception, nor does any other provision of the GATT  1994 or of the other WTO covered agr eements offer a 
basis for excluding Article XXI from the jurisdiction of WTO panels and the Appellate Body.  (Ibid.)  
73 Ibid. paras. 98 -99. 
74 Ibid. paras. 103 -107. 
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interests.75 Ukraine also argues that Russia's allegation that the basis for the measures and the 
original circumstances leading to their imposition were publicly available and known to Ukr aine is of 
no consequence in determining whether Russia has satisfied its burden of proof.76 Ukraine submits 
that the facts before the Panel show that Decree No. 1 was adopted due to the entry into force of 
the economic part of the EU -Ukraine Association Ag reement , and that the text of the instruments 
implementing the 2014 measures shows that these were taken "[i]n view of detection of gross 
violations during the transit of such goods through the territory of the Republic of Belarus ".77 Finally, 
Ukraine argue s that the determination of whether the action was taken in time of war or other 
emergency in international relations under subparagraph  (iii) of Article XXI(b) is to be objectively 
made by the Panel.78 
7.33.   Ukraine argues that, although the text of Article XXI( b) expressly states that it is for the 
invoking Member to decide what action it considers necessary for the protection of its 
essential  security interests, this does not mean that the Member enjoys "total discretion ".79 Had the 
standard been "total discreti on", there would have been no reason to include separate paragraphs 
in Article XXI and to distinguish between different types of security interest s that may be invoked in 
order to justify a measure that is otherwise inconsistent with the GATT 1994.80 Furthe rmore , a 
panel's objective assessment must include an examination of whether a Member invoking Article  XXI 
has done so in good faith, notwithstanding the absence of an introductory paragraph similar to the 
chapeau to Article XX.81  
7.34.   As to the standard of rev iew under Article XXI(b)(iii), Ukraine argues that a panel's objective 
assessment must include an examination of whether the invoking Member has applied Article XXI in 
good faith and therefore has not abused the invocation "to pursue protectionist objectiv es or to apply 
a disguised restriction on trade ".82 Ukraine argues that,  based on the ordinary meaning of the text 
of Article XXI(b) and similar to  the analysis under the subparagraphs of Article XX, justification under 
Article XXI also requires that there be a rational relationship between the action and the protection 
of the essential security interest at issue.83 This analysis involves a considerat ion of the structure, 
content and design of the challenged measures. The phrase "for the protection of its essential 
security interests" should be interpreted  in the light of the case law on Article XX of the GATT 1994 
(in particular, regarding Article XX( a) on the protection of public morals)  to mean that "all 
WTO Members have the right to determine their own level of protection of essential security 
interests ", from which it would follow that a panel must not second -guess that level of protection.84 
Howeve r, it is for panels rather than for Members to interpret  the phrase s "for the protection of its 
essential security interests" and "which it considers necessary"  in accordance with customary rules 
of interpretation of public international law.85 In light of those interpretation s, a panel must then 
establish : (i) whether the interests or reasons advanced by a defendant in connection with the 
measures at issue can reasonably be considered as falling within the meaning of the phrase 
"its essential security inter ests" and ( ii) whether the measures at issue are directed at safeguarding 
                                                
75 Ukraine's opening statement at the first meeting of the Panel, paras. 150 and 158; and openi ng 
statement at the second meeting of the Panel, para. 64. See also Ukraine's second written submission, 
paras.  133-136 and 138.  
76 Ukraine's closing statement at the first meeting of the Panel, para. 6; and second written submission, 
para. 137. Moreover, U kraine argues that Russia may not rely on Article XXI(a) of the GATT 1994 to evade its 
burden of proof under Article XXI(b)(iii) of the GATT 1994. (See Ukraine's closing statement at the first 
meeting of the Panel, para. 11; and second written submission, paras. 159 -163.)  
77 Instruction No . FS-NV-7/22886 of the Rosselkhoznadzor , dated 21 November 2014, (Veterinary 
Instruction), (Exhibits UKR -21, RUS -10). See also Ukraine's first written submission, paras. 27, 32 -33, and 58; 
and second written submission, para. 138.  
78 Ukraine's opening statement at the first meeting of the Panel, paras. 148 -149. 
79 Ibid. para. 135.  
80 Ibid. paras. 109 -110; and Ukraine's response to Panel question No. 1 after the second meeting, 
para. 5. 
81 Ukraine's opening statement at the first meeting of the Panel, paras. 122 -123. 
82 Ibid. paras. 122 and 125. (fn om itted)  
83 Ibid. paras. 137-139. 
84 Ibid. para. 141. Ukraine submits that it is "not contested in these proceedings that it is for each 
WTO Member to define what matters affect its national security and what level of protection it pursues. Each 
WTO Member's p osition might be different and may evolve over time. Both matters fall outside the scope of 
review of a panel." (Ukraine's response to Panel question No. 2 following the second meeting of the Panel, 
para. 78.)  
85 Ukraine considers that not every security in terest will be an "essential" security interest. 
(Ukraine's  opening statement at the first meeting of the Panel.  paras.  143-145.)  
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the defendant's security interests, meaning that there is a rational relationship between the action 
taken and the protection of the essential security interest at issue.86 If a panel  finds that the 
Member's measure is taken "for the protection of its essential security interests", a panel would then 
review whether, based on the facts available, the defendant "could reasonably arrive at the 
conclusion that the measures taken are necess ary for protecting its essential security interests" .87  
7.5.2   Main arguments of the third parties  
7.35.   Australia  argues that Article 7 of the DSU vests the Panel with jurisdiction to examine and 
make findings with respect to each of the relevant provisions in the cov ered agreements that Ukraine 
and Russia have cited.88 Russia's invocation of Article XXI(b)(iii) of the GATT 1994, which Australia 
considers to be an exception to Members' obligations under the GATT 1994, places the provision 
squarely within the Panel's jur isdiction.89  
7.36.   Australia regards the language "which it considers necessary" in the first part of Article XXI(b) 
to indicate that it is for a Member to determine both its essential security interests and the actions 
it considers necessary for their protection. However, this deference to the determinations of a 
Member does not preclude a panel from undertaking any review of a Member's invocation of 
Article  XXI(b).90 Rather, in reviewing the "necessity" of an action under Article XXI(b), a panel is 
limited to determining whether the Member in fact considers the action necessary, for example, by 
reference to the Member's statements and conduct. Australia considers that although the nature and 
scope of review of the "necessity" aspect is limited, a panel d oes have a broader role in determining 
whether that (necessary) action was taken "for the protection of " a Member's essential security 
interests . In Australia's view, to arrive at such a determination , a panel should examine if there is a 
"sufficient nexus " between the action taken and the Member's essential security interests.91  
7.37.   Brazil  argues that, by invoking Article XXI, Russia did the opposite of excluding the 
Panel's  jurisdiction : it obliged the Panel to examine the provision by bringing it into the "matter" at 
hand.92 Moreover, an exclusion of jurisdiction would deprive the complainant of its right to a decision 
and would be contrary to Article 3.3 of the DSU.93 Brazil considers Art icle XXI to be an 
affirmative  defence. Brazil interprets Article XXI(b) as containing both a "subjective" component, 
i.e. a judgment regarding the necessity of a measure, and an "objective component", which relates 
to the presence of at least one of the ci rcumstances listed in subparagraphs (i) through (iii).94 
Although the language "which it considers" in the first part of Article XXI(b) confers a great deal of 
                                                
86 Ukraine's response to Panel question No. 2 following the first meeting of the Panel, paras. 76 -80. See 
also Ukraine's respon se to Panel question No. 1 following the second meeting of the Panel, paras. 8 and 10.  
87 Ukraine's response to Panel question No. 2 following the first meeting of the Panel, para. 81. Ukraine 
submits that the wording of the phrase "which it considers nece ssary" suggests that the standard of review 
cannot be the same as the standard of review with respect to the necessity test under Article XX of the 
GATT  1994. (Ibid.) In its closing statement at the second meeting of the Panel (at para. 5) and in its respo nse 
to Panel question No. 1 following the second meeting of the Panel (at para. 11), Ukraine uses the term 
"plausibly" (rather than reasonably) to describe this standard of review.  
88 Australia's third -party submission, paras. 8 -10. 
89 Australia's third -party statement, paras. 2 and 9.  
90 Ibid. para. 11.  
91 Ibid. paras. 15 and 17. (emphasis original) Australia submits that, if action taken by a Member is not 
capable of making some contribution to protecting its essential security interests, it would be reasonab le for a 
panel to determine that the action was not in fact  taken for such a purpose under Article  XXI(b). 
(Ibid.  para. 18.) 
92 Brazil's third -party statement, para. 8.  
93 Ibid. para. 9.  Brazil refers to "the negotiation history " of Article XXI of the GATT 1994  and state 
practice to argue that it was never the intention of the Members that the WTO in general or the WTO dispute 
settlement mechanism in particular would be the proper venue to "discuss security matters ". 
(Brazil's  third-party submission, pa ra. 5.) However, Brazil  notes that Members were at the same time mindful 
that Article XXI could be "improperly used to prevent measures of a strictly commercial nature from being 
challenged in the dispute settlement mechanism ". (Ibid. para. 6.) Brazil conc ludes that, in order to strike a 
balance, "there was an option to limit the circumstances in which Article XXI may be invoked, which seems to 
indicate that it was a common understanding that differences regarding the application of Article XXI would not 
necessarily fall outside the purview of a Panel, should a Member consider that those c ircumstances were not in 
place." (Ibid.)  
94 Brazil's third -party statement, para. 16.  Brazil argues that a panel should begin its analysis by 
determining whether one or more  of the circumstances in subparagraphs (i) through (iii) are present. If none 
are present, then the panel need not proceed with the rest of the analysis.  (Ibid. para. 17.)  
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discretion on the Member regarding the necessity of the measure, a panel must nevertheless review  
the Member's motivation for invoking Article XXI(b)(iii) to ensure that there is some connection 
between the measure and the state of war or other emergency in international relations, and whether 
there is a "plausible link" between the measure and the pu rpose stated in the Member's motivation 
for imposing the measure.95 
7.38.   Brazil considers that, unlike the determination of whether an action relates to 
fissionable  materials, traffic in arms, or war, in subparagraphs (i), (ii) and (iii) of Article XXI(b), the 
question of what constitutes an emergency in international relations is "quite subjective and quite 
difficult to discern without entering into a discussion on what constitutes a Member's national 
security interest ".96 Nevertheless, Brazil considers that the invoking Member bears the burden of 
adducing evidence that the challenged measures constitute action taken in time of war or other 
emergency in international relations.97 An invoking Member must also demonstrate some degree of 
connection between the measure  and the state of war or other emergency in international relations, 
and whether there is a plausible link between the measure that the Member wishes to justify and 
the purpose stated in its motivation.98 
7.39.   Canada  argues that if Article XXI of the GATT 1994 i s invoked by a Member in a dispute, then 
its applicability is justiciable unless consideration of the Article has been excluded from a 
panel's  terms of reference.99 Canada further observes that the DSU provides that panels do not have 
the discretion to decl ine to exercise the jurisdiction conferred on them by their terms of reference, 
nor do they have the discretion not to discharge the obligations imposed on them by Article 11 of 
the DSU.100 While Canada considers that Article XXI is an exception which can be  invoked by a 
Member to justify measures that would otherwise not be consistent with its WTO obligations, it also 
regards Article XXI as "structurally and textually different from Article XX ".101 It therefore cautions 
against importing tests developed in the  jurisprudence to interpret provisions such as Article XX.102  
7.40.   Canada interprets Article XXI(b)(iii) as providing for a " subjective " standard, according to 
which the invoking Member determines the interests, actions and necessity of actions, as well as the 
satisfaction of the conditions in subparagraph (iii).103 While Canada considers the subjective standard 
and the particularly sensitive nature of the subject matter of Article XXI to mean that 
an invoking  Member must be accorded a "high level of deference" by a panel, it also considers that 
an invoking Member must substantiate (albeit at a low standard) its good faith belief that the 
elements for its invocation of Article XXI(b)(iii) exist.104 
7.41.   China  argues that the Panel has jurisdiction to review Russia's invoca tion of Article XXI of the 
GATT 1994 on the basis of the Panel's standard terms of reference and Articles 7.1 and 7.2 of the 
DSU.105 China considers that Russia has invoked Article XXI as a defence to Ukraine's claims of 
inconsistency .106 China urges the Panel  to exercise extreme caution in its assessment of 
Russia's  invocation of Article  XXI(b)(iii), in order to maintain the delicate balance between 
preventing abuse of Article XXI and evasion of WTO obligations, on the one hand, and not prejudicing 
a Member's right to protect its essential security interests, including a Member's "sole discretion" 
regarding its own security interests, on the other hand.107 China refers to the principle of good faith 
                                                
95 Brazil's third -party submission, paras. 28 -30. 
96 Ibid. para. 8. For this reason, a nd in light of the absence of a common understanding of the scope of 
rights and obligations under Article XXI, Brazil cautions the Panel against "any interpretation that could impair 
a Member's ability to decide on the need to adopt the measures necessary to protect its national security". 
(Ibid. para. 9.)  
97 Brazil submits that Article XXI(a) of the GATT 1994 should not be interpreted as precluding the need 
for a Member to motivate its recourse to the exceptions of Article XXI(b). (Brazil's third -party stat ement, 
para. 26.) 
98 Ibid. paras. 28 -29. 
99 Canada's third -party statement, para. 4.  
100 Canada's letter to the Chairman of the Panel, dated 14 November 2017.  
101 Canada's third -party statement, para. 6. 
102 Ibid. para. 5.  
103 Ibid. para. 6.  
104 Ibid. para. 8. 
105 China's third -party statement, paras. 3-5. 
106 Ibid. para. 6.  
107 China's third -party statement,  para. 18.  
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embodied in Article 26 of the Vienna Convention  on the Law of Treaties and argues that Members 
invoking Article  XXI(b) should adhere to the principle of good faith.108 
7.42.   The European Union  argues that Article XXI of the GATT 1994 does not provide for an 
exception to the rules on jurisdiction laid down in the DSU o r to the special rules on consultations 
and dispute settlement contained in Articles XXII and XXIII of the GATT 1994 .109  
7.43.   Given the absence in Article XXI of an equivalent to the chapeau in Article XX, the analysis of 
Article XXI should consider whether a me asure addresses the particular interest specified, and that 
there is a sufficient nexus between the measure and the interest protected.110 The European Union 
argues that the terms "which it considers" in the first part of Article XXI(b) qualify only the term  
"necessary ". Therefore, the existence of a war or other emergency in international relations in 
subparagraph (iii) should be interpreted to refer to objective factual circumstances which can be 
fully reviewed by panels.111 While "essential security interest s" should be interpreted so as to allow 
Members to identify their own security interests and their desired level of protection, a panel should, 
on the basis of the reasons provided by the invoking Member, review whether the interests at stake 
can "reasonab ly" or "plausibly" be considered essential security interests.112 A panel must also 
review whether the action is "capable" of protecting a security interest from a threat. The 
European  Union considers that the terms "which it considers" imply that "in princi ple" each Member 
may determine for itself whether a measure is "necessary" for the protection of its essential security 
interests.113 A panel should nevertheless review this determination, albeit with due deference, to 
assess whether the invoking Member can plausibly consider the measure necessary and whether the 
measure is "applied" in good faith. This requires the invoking Member to provide the panel with an 
explanation as to why it considered the measure necessary.114 Finally, the European Union argues 
that, when assessing the necessity of the measure and the existence of reasonably available 
alternatives, a panel should ascertain whether the interests of third parties which may be affected 
were properly taken into account.115 
7.44.   Japan  argues that consideration of  Russia's invocation of Article XXI of the GATT 1994 is 
within the Panel's terms of reference.116 However, Japan also considers that Article XXI of the 
GATT  1994 is an "extraordinary provision" in that it recognizes the vital importance of 
Members'  essential  security interests, and the fundamental nature of their sovereign right to pursue 
such vital interests. This is reflected in the "deferential language" used in the provision. This being 
so, it may impose an "undue burden" on the WTO dispute settlement sys tem to require panels to 
review a Member's invocation of Article XXI. Japan therefore urges the parties to make every effort 
to seek a mutually acceptable solution "in order to maintain the effective functioning of the WTO ".117  
7.45.   Japan also notes the critical  importance of national security interests to 
Members'  fundamental sovereignty and the risk of the Panel adopting any interpretation that could 
impair a Member's ability to decide on the need to adopt measures necessary to protect its national 
security.118 Japan therefore urges the Panel to "grant appropriate deference to the 
Members'  judgement as to the necessity of taking actions to protect their essential security 
                                                
108 China's third -party statement,  para. 19. 
109 European Union's third -party submission, para. 14; and third -party statement, para. 4. 
The European  Union argues that the "matter" before the Panel in this case includes the defence under 
Article  XXI invoked by Russia, as the Panel does not have special t erms of reference.  
(European  Union's  third-party statement, para. 4.) The European Union further argues that it would be 
contrary to the objectives of the DSU reflected in Articles 3.2 and 23 to interpret Article XXI of the GATT 1994 
as being non -justiciab le because it would mean that the invoking Member would unilaterally decide the 
outcome of a dispute. (Ibid. para. 5.)  
110 Ibid. para. 11.  
111 Ibid. para. 14.  
112 Ibid. para. 17.  
113 Ibid. para. 21. The European Union submits that the term "necessary" in Article X XI(b) should be 
given the same meaning as in Article XX. (Ibid.)  
114 Ibid. 
115 Ibid. para. 23. The European Union argues that this is required by the preamble of the 
Decision  Concerning Article XXI of the General Agreement (1982 Decision). (Ibid.)  
116 Japan's th ird-party submission, para. 30.  
117 Japan's third -party statement, paras. 7 -8. 
118 Ibid. para. 10 (referring to Australia's third -party submission, para. 25; and 
Brazil's  third-party submission, para. 9).  
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interests ".119 At the same time, Japan acknowledges that subparagraph (b)(iii) carefully 
circum scribes the situations that would allow Members to invoke a defence based on each 
Member's  essential security interests. In addition, in Japan's view, considering the object and 
purpose of the GATT 1994 and the preparatory work for the ITO Charter, the dis cretion accorded to 
Members in deciding upon the actions that are necessary to protect their essential security interests 
is "not unbounded and must be exercised with extreme caution ".120 
7.46.   Moldova  disagrees with Russia's argument that the mere invocation of A rticle XXI(b)(iii) 
prevents WTO panels from reviewing trade issues that would otherwise be WTO -inconsistent.121 
Moldova therefore considers that, while Members have the right to define for themselves their 
essential security interests, and declare the necess ity of protecting those interests, WTO panels have 
the right to review whether such Members apply WTO -inconsistent measures in good faith and in 
accordance with the requirements of Article XXI.122  
7.47.   Moldova considers that the Panel needs to assess whether the  invoking Member "genuinely 
believes" that the measure taken is necessary to protect such Member's essential security interests. 
Moldova argues that the jurisprudence concerning the "necessity" of a measure sought to be justified 
under Articles XX(a), (b) or (d) of the GATT 1994 could be relevant to a panel's assessment of the 
necessity of action under Article XXI(b). Accordingly, Moldova argues that a panel assessing whether 
an action is "necessary" for purposes of Article XXI(b) should undertake a "weighi ng and balancing 
exercise", which considers the importance of the essential security interests or values at stake, the 
extent of the contribution to the achievement of the measure's objective, and its trade 
restrictiveness, complemented by an analysis of w hether the measure is "apt to make a material 
contribution to the achievement of its objective ".123 Such an exercise should also include a 
determination of whether a WTO -consistent alternative measure is reasonably available to the 
invoking Member.124 A panel should also determine if the measures at issue protect 
"essential  security interests", which must meet a higher standard than, and can be distinguished 
from, "non -essential security interests ".125 Moldova considers that the invoking Member should 
demonstrate to a panel that "in addition to establishing the objective prerequisites in Article XXI(b)[] 
regarding the existence of an essential security interest", the measure does not "intentionally serv e 
protectionist purposes ".126 
7.48.   Singapore  argues that the Panel has jurisdiction to consider Russia's invocation of Article XXI, 
on the basis of the Panel's standard terms of reference and Articles 7.1 and 7.2 of the DSU.127 
Singapore considers that the language  "it considers necessary" in the first part of Article XXI(b) 
indicates that the invoking Member is allowed to determine "with a significant degree of subjectivity" 
what action it considers necessary to protect its essential security interests.128 Singapore contrasts 
this "self -judging" aspect of Article XXI(b) with the text of Article XX.129 Singapore argues that the 
"key" phrase "it considers necessary" in the first part of Article XXI(b) has been deliberately drafted 
to give a Member wide latitude to determi ne both the action necessary for the protecti on of its 
                                                
119 Japan's third -party statement, para. 10.  
120 Ibid. para . 11. 
121 Moldova's third -party submission, para. 18.  
122 Ibid. para. 21.  Moldova points to the creation of the WTO as an international organization with a 
binding dispute settlement system administered by the DSB and the fact that the only mechanism for 
"opting-out" of the application of the obligations under the covered agreements is through the mechanism 
envisaged in Article XIII:1 of the WTO Agreement, which Russia did not invoke when it acceded to the WTO.  
(Ibid.  paras.  23-24.) 
123 Moldova's third -party stat ement, para. 19.  
124 Ibid. para. 22.  
125 Ibid. para. 20.  
126 Ibid. para. 21.  
127 Singapore's third -party statement, paras. 8 -11. 
128 Ibid. paras. 13 -14. Singapore argues that WTO provisions which involve some margin of appreciation 
for a Member, such as the determin ation of the appropriate level of protection under the SPS Agreement, are 
not "anywhere close" to being as express and definitive regarding their "self -judging" nature as Article XXI(b). 
Therefore, a higher level of deference —i.e. a "significant margin of appreciation" —should be accorded to a 
Member's chosen level of protection, assessment of risk and the necessity of the measure taken for the 
protection of its essential security interests.  (Ibid. paras. 18 -19.) 
129 Given the textual differences between Artic les XX and XXI, Singapore does not agree with an 
interpretation of Article XXI(b) which seeks to apply to that provision the analytical framework or necessity test 
developed under Article XX. (Singapore's third -party statement, para. 15.)  
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essential security interests (including the nature, scope and duration of the measure) and the 
necessity of the measure.130 Singapore argues that a "significant margin of appreciation" should be 
accorded  to a Member's assessments of its chosen level of protection and risk, as well as the 
necessity of a measure taken for the protection of its essential security interests.131  
7.49.   On the other hand, Singapore considers that Members should exercise their discretio n under 
Article XXI(b) in accordance with the principle of good faith and the doctrine of abuse of rights. 
Thus,  a Member must, in good faith —albeit subjectively —consider that there is a threat to its 
essential  security interest and that its chosen action is necessary for the protection of that essential 
security interest.132 Singapore also argues that the determination of the existence of an "emergency 
in international relations" under subparagraph (iii) of Article XXI(b) is "inherently subjective", with 
the sensitivities implicated in a Member's assessment of its security threats being equally applicable 
to a determination of whether an "emergency in international relations" exists.133 Singapore submits 
that, even if the Panel were to conduct a "more intrusive " review of a Member's invocation of 
Article  XXI(b), it should be limited to an examination of whether the disputed measure was 
implemented in a "non -capricious manner", rather than conducting an examination that 
"approximates an objective substantive revi ew".134 
7.50.   Turkey  argues that the text of Article XXI(b), especially the clause "which it considers 
necessary" means that "to a very large extent", it is left to the judgment of the invoking Member to 
determine which measures it considers necessary for the prot ection of its essential security interests. 
However, while the language of Article XXI leaves the determination of whether action is necessary 
for the protection of essential security interests to the Member taking the action, this discretion is 
not unqual ified. Turkey regards the term "essential", which qualifies "security interests", to indicate 
an intention to draw a boundary to prevent abuses of power such as sheltering commercial measures 
behind the security exception.135 Suggesting that the Panel should  be guided by the general 
exception rules of the GATT 1994, Turkey considers that a complain ing Member  should make its 
prima facie case of inconsistency, and then the respond ing Member  should put forward, inter alia , 
its argument that the measure can be ju stified under Article XXI.  A panel, when reviewing the 
responding Member's invocation of Article XXI, should consider the "large margin of discretion" 
accorded to the invoking Member.136 
7.51.   The United States , in a letter to the Chair of the Panel submitted on the due date for 
third-party submissions, argues that the Panel "lacks the authority to review the invocation of 
Article  XXI and to make findings on the claims raised in this dispute ".137 The reason advanced is that 
every WTO  Member retains the authority to determine for itself those matters that it considers 
necessary for the protection of its essential security interests, as "reflected" in the text of Article XXI 
of the GATT  1994.138 The U nited States describes this as an "inherent right" that has been repeatedly 
recognized by GATT contracting parties and WTO Members.139  
7.52.   In its subsequent submissions, the United States clarifies that it considers the Panel to have 
jurisdiction in the context  of this dispute "in the sense that the DSB established it, and placed the 
matter raised in Ukraine's complaint within the Panel's terms of reference under Article 7.1 of the 
DSU".140 However, it considers that the dispute is "non -justiciable" because there are no legal criteria 
                                                
130 Singapore's thi rd-party statement, para. 13.  
131 Ibid. para. 19.  
132 Ibid. para. 21.  Singapore also argues that responses to threats to essential security interests involve 
the subjective judgment of a Member and depend on the particular context and circumstances involved.  
(Ibid. paras. 16 -17.) 
133 Ibid. para. 23.  
134 Ibid. para. 22.  
135 Turkey's third -party statement, para. 7.  
136 Ibid. para. 8.  
137 Letter from the United States to the Chair of the Panel, dated 7 November 2017, para. 4.  
138 Ibid. para. 2.  
139 In addition, the United States asserts that "[i]ssues of national security are political matters not 
susceptible for review or capable of resolutio n by WTO dispute settlement." (Ibid.)  
140 United States' third -party statement, para. 4; and response to Panel question No. 1, para. 17.  The 
United States distinguishes between "jurisdiction" —meaning, in the present context, the "extent of power of 
the Panel  under the DSU to make legal decisions in this dispute" —and "justiciability", in the sense of whether 
an issue may be subject to findings by the Panel under the DSU. The United States also defines "justiciability" 
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by which the issue of a Member's consideration of its essential security interests can be judged.141 
The United States bases its position on its interpretation of the text of Article XXI, specifically, the 
"self-judging" language of the  chapeau in Article XXI(b) " which it considers necessary for  the 
protection of its essential security interests ".142 For the United States, the "self-judging " nature of 
Article XXI(b)(iii) establishes that its invocation by a Member is "non -justiciable", and  "is therefore 
not capable of findings by a panel" , obviating the possibility of making recommendations under 
Article  19.1 of the DSU in this dispute .143  
7.5.3   Whether the Panel has jurisdiction to review Russia's invocation of 
Article  XXI(b)(iii) of the GATT 199 4 
7.53.   The Panel recalls that i nternational adjudicative tribunals, including WTO dispute settlement 
panels, possess inherent jurisdiction which derives from the exercise of their adjudicative function.144 
One aspect of this inherent jurisdiction is the power  to determine all matters arising in relation to 
the exercise of their own substantive jurisdiction.145  
7.54.   Article 1.1 of the DSU provides that the rules and procedures of the DSU shall apply to 
disputes brought pursuant to the consultation and dispute settlement provisions of the agreements 
listed in Appendix 1 (the covered agreements). The covered agreements include, inter alia , the 
Multilateral Agreements on Trade in Goods, including the GATT 1994, more particularly Articles XXII 
and XXIII, as elaborated and app lied by the DSU. Article 1.2 of the DSU provides that the rules and 
procedures of the DSU shall apply subject to such special or additional rules on dispute settlement 
contained in the covered agreements as are identified in Appendix 2 to the DSU. Appendix  2 of the 
DSU does not refer to any special or additional rules of procedure applying to disputes in which 
Article XXI of the GATT 1994 is invoked.  
7.55.   The Panel recalls that Ukraine requested the  DSB to  establish a panel pursuant to the 
provisions of the DSU  and Article XXIII of the GATT 1994. On 21 March 2017, the DSB established 
the Panel in accordance with Article 6 of the DSU, with standard terms of reference as provided in 
Article 7.1 of the DSU. Article 7.2 of the DSU requires that the Panel address the  relevant provisions 
in any covered agreements cited by the parties to the dispute.146  
7.56.   Given the absence in the DSU of any special or additional rules of procedure applying to 
disputes involving Article XXI of the GATT 1994, Russia's invocation of Article X XI(b)(iii) is within 
the Panel's terms of reference for the purposes of the DSU.  
7.57.   Russia argues, however, that the Panel lacks jurisdiction to review Russia's invocation of 
Article XXI(b)(iii). For Russia, the invocation of Article XXI(b)(iii) by a Member renders its actions 
immune from scrutiny by a WTO dispute settlement panel. Russia's argument is based on its 
                                                
as whether a matter is capable of being ad judicated, or suitable for adjudication.  (United States' third -party 
statement, para. 3; and response  to Panel question No. 1, paras. 16 -19.) 
141 United States' response to Panel question No. 1, paras. 18 and 22.  
142 United States' third -party statement, paras . 5, 11 -12 and 34 -36. (emphasis original) Additionally, in 
response to a question from the Panel, the United States argues that Members agreed to remove the 
invocation of the essential security exception from multilateral judgment when they agreed to the 
"self-judging " text included in Article XXI . (United States' response to P anel question No. 1, para. 22; and 
General US Answer to questions from the Panel and the Russian Federation, paras. 1 -15.) 
143 United States' response to Panel question No. 1, para. 17.  See also United States' third -party 
statement, paras. 2 -3, 5 and 7.  
144 See International Court of Justice , Questions of Jurisdiction and/or Admissibility,  Nuclear Tests Case  
(Australia v . France) (1974) ICJ Reports, pp. 259-260; and International Court of Justice, 
Preliminary  Objections, Case Concerning the Northern Cameroons  (Cameroon v. United Kingdom) (1963) 
ICJ Reports, pp.  29-31. The Appellate Body has stated that WTO panels have certain powers that are inherent 
in their adjudicative function . (See Appellate Body Report, Mexico – Taxes on Soft Drinks , para. 45. ) 
145 This is known as the principle of Kompetenz -Kompetenz  in German, or compétence de la compétence  
in French. The Appellate Body has held that panels have the power to determine the extent of the ir jurisdiction . 
(See Appellate Body Reports, US – 1916 Act , fn 30 to para. 54; and Mexico – Corn Syrup (Article 21.5 – US), 
para. 36. ) 
146 See also Appellate Body Report, Mexico – Taxes on Soft Drinks , para. 49. The Appellate Body has 
also stated that, as a matter of due process and the proper exercise of the judicial function, panels are 
required to address issues that are put before them by the parties to a dispute. (Appellate Body Report, 
Mexico  – Corn Syrup (Article 21.5 – US), para. 36.)  
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interpretation of Article XXI(b)(iii) as "self-judging ".147 According to this argument, Ar ticle XXI(b)(iii) 
carves out from a panel's jurisdiction ratione materiae  actions that a Member  consider s necessary 
for the protection of its essential security interests taken in time of war or other emergency in 
international relations. Russia's jurisdic tional plea is that, based on its interpretation of 
Article  XXI(b)(iii), it has met the conditions for invoking the provision.  
7.58.   As previously noted, the Panel's evaluation of Russia's jurisdictional plea requires it, in the 
first place, to interpret Articl e XXI(b)(iii) of the GATT 1994 in order to determine whether, by virtue 
of the language of this provision, the power to decide whether  the requirements for the application 
of the provision  are met  is vested exclusively in the Member invoking the provision,  or whether the 
Panel retains the power to review such a decision  concerning any of these requirements.  
7.5.3.1   Meaning  of Article XXI(b)(iii) of the GATT 1994  
7.59.   The Panel begins by recalling that Article 3.2 of the DSU recognizes that interpretive issues 
arising i n WTO dispute settlement are to be resolved through the application of customary rules of 
interpretation of public international law. It is well established —including in previous WTO disputes  
—that the se rules cover those codified in Articles 31 and 32 of the Vienna Convention  on the Law of 
Treaties (Vienna Convention) . Article 31(1) provides:  
A treaty shall be interpreted in good faith in accordance with the ordinary meaning to 
be given to the terms of the treaty in their context and in the light of its o bject and 
purpose.  
7.60.   Article XXI(b)(iii)  of the GATT 1994  is part of the "Security Exceptions" set forth in Article XXI , 
which  provides:  
Nothing in this Agreement shall be construed  
(a) to require any contracting party to furnish any information the disclosure of which 
it considers contrary to its essential security interests; or  
(b) to prevent any contracting party from taking any action  which it considers  necessary 
for the protection of its essential security interests  
(i) relating to fissionable materials or the materials from which they are derived;  
(ii) relating to the traffic in arms, ammunition and implements of war and to such 
traffic in other goods and materials as is carried on directly or indirectly for the 
purpose of supplying  a military establishment;  
(iii) taken in time of war or other emergenc y in international relations; or  
(c) to prevent any contracting party from taking any action in pursuance of its 
obligations under the United Nations Charter for the maintenance of int ernational peace 
and security.  
7.61.   The introduction to Article XXI states that "[n]othing in this Agreement shall be construed" 
followed by three paragraphs that are separated by the conjunction "or ". Paragraph (a) of Article  XXI 
describes action  that may not be required of a Member, and paragraphs (b) and (c) describe action  
which a Member may not be prevented from taking , notwithstanding that Member's obligations 
under the GATT 1994.  
                                                
147 See Russia's first written submission, paras. 5 -6 and 40 -48; opening statement at the first meeting 
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7.5.3.1.1   Whether the clause in the chapeau of Article XXI(b) qualifies the determina tion 
of the matters in the enumerated subparagraph s of that provision  
7.62.   Paragraph (b) of Article XXI includes an introductory part (chapeau), which qualifies  action 
that a Member may not be prevented from taking  as that  "which [the Member] considers necessar y 
for the protection of its essential security interests ".  
7.63.   The text  of the chapeau of Article XXI (b) can be read in different ways and can thus 
accommodate more than one interpretation of the adjectival clause "which it considers ". 
The adjectival  clause c an be read to qualify only the word "necessary", i.e. the necessity  of the 
measures  for the protection of "its essential security interests" ; or to qualify also the determination 
of these "essent ial security interests"; or finally and maximally , to qualify  the determination of the 
matters  described in the three subparagraphs of Article XXI (b) as well.   
7.64.   The Panel  starts by testing this last , most extensive  hypothesis , i.e. whether the adjectival 
clause "which it considers" in the chapeau of Article XXI(b) qualifies the determination of the sets of 
circumstances described in the enumerated subparagraphs of Article XXI (b). The Panel will leave  for 
the moment the examina tion of the two other  interpretive hypotheses, which bear  exclusively on 
the chapeau.148  
7.65.   As mentioned  above, t he mere meaning of the words and the grammatical construction of the 
provision  can accommodate an interpretation in which the adjectival clause "wh ich it considers" 
qualifies the determinations in the three enumerated subparagraphs . But if one considers the logical 
structure of the provision, it is  apparent  that the three sets of circumstances under subparagraphs  (i) 
to (iii)  of Article XXI(b)  operat e as limitative qualifying clauses; in other words, they qualify and limit 
the exercise of the discretion accorded to Members under  the chapeau to these circumstances. Does 
it stand to reason , given their limitative function , to leave their determination e xclusively to the 
discretion of the in voking  Member? And what would be the use , or effet utile, and added value of 
these limitative qualifying clauses in the enumerated subparagraphs of Article XXI(b) , under  such 
an interpretatio n?  
7.66.   A similar logical query  is whether the subject -matter of each of the enumerated 
subparagraphs of Article XXI(b) lends itself to purely subjective discretionary determination.  
In answering this last question, t he Panel will focus on the last set  of circumstances , envisaged in 
subparagraph (iii), to determine whether , given their nature, the evaluation  of these circumstances  
can be left wholly to the discretion of the Member invoking the provision , or is designed to be 
conducted  objectively, by a dispute settlemen t panel.  
7.67.   As previously noted,  the words of the chapeau  of Article XXI(b)  are followed by the three 
enumerated subparagraphs, which are relative clauses qualifying the sentence in the chapeau, 
separated  from each other  by semicolons.  They provide  that the action  referred to in the chapeau  
must be:  
i. "relating to fissionable materials or the materials from which they are  derived" ; 
ii. "relating to the traffic in arms, ammunition and implements of war and to such traffic 
in other goods and materials as is carried on directly or indirectly for the purpose of 
supplying a military establ ishment" ;  
iii. "taken in time of war or other emergency in international rel ations ".  
7.68.   Given that these subject matters —i.e. the "fissionable materials  …", "traffic in arms … ", and 
situations  of "war or other emergenc y in international relations " described in the enumerated 
subparagraphs —are substantially different, it is obvious that these subparagraphs establish 
alternative (rather than cumulative) requirements that the action in q uestion must meet in order to 
fall within the ambit of Article XXI(b).  
7.69.   The connection between the action and the materials or the  traffic  descr ibed in 
subparagraphs  (i) and (ii) is specified by the phrase "relating to ". The phrase "relating to", as used 
                                                
148 See Section 7.5.6 below.  WT/DS512/R  
 
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in Article XX(g) of the GATT 1994, has been interpreted by the Appellate Body  to require a "close 
and genuine relationship of ends and means" between the measure and the objective of the Member  
adopting  the measure.149 This is an objective  relationship betwee n the ends and the means, subject 
to objective  determination.  
7.70.   The phrase "taken in time of" in subparagraph (iii) describes the connection between the 
action and the event s of war or other emergency in international re lations in that subparagraph . 
The Panel understands this phrase to require that the action be taken during  the war or other 
emergency in international relations. This chronological concurrence is also an objective fact, 
amenable to objective determination.  
7.71.   Moreover, as for the circumstanc es referred to in subparagraph (iii), the existence of a war , 
as one characteristic example of a larger category of "emergency in international relations", is clearly 
capable of objective determination. Although the confines of an "emergency in internation al 
relations" are less clear than those of the matters addressed in subparagraphs (i) and (ii), and of 
"war" under subparagraph (iii), it is clear that an "emergency in international relations" can only be 
understood, in the context of the other matters ad dressed in the subparagraphs, as belonging to the 
same category of objective facts that are amenable to objective determination.  
7.72.   The use of the conjunction "or" with the adjective "other" in "war or other emergency in 
international relations" in subparagra ph (iii) indicates that war is one example of the larger category 
of "emergency in international relations ". War refers to armed confl ict. A rmed conf lict may occur 
between states  (international armed conflict) , or between governmental forces and private ar med 
groups, or between such groups within the same state (non -international armed conflict). The 
dictionary definition of "emergency" includes a "situation, esp.  of danger or conflict, that arises 
unexpectedly and requires urgent action ", and a "pressing n eed … a condition or danger or disaster 
throughout a region ".150  
7.73.   "International relations" is defined generally to mean " world politics ", or "global political 
interaction, primarily among sovereign states ".151  
7.74.   The Panel  also take s into account, as context fo r the interpretation of an "emergency in 
international relations" in subparagraph (iii), the matters  addressed by subparagraphs (i) and (ii) of 
Article XXI(b), which cover fissionable materials, and traffic in arms, ammunition and implements of 
war, as wel l as traffic in goods and materials for the purpose of supplying a military establishment. 
While the enumerated subparagraphs of Article XXI(b) establish alternative requirements, the 
matters addressed by those subparagraphs give rise to similar or converg ent concerns, which can 
be formulated in terms of the specific security interests that arise from the matters addressed in 
each of them . Those interests , like the  interests that arise from a situation of war in 
subparagraph  (iii) itself, are all defence and  military  interests, as well as maintenance of law and 
public order  interests . An "emergency in  international relations" must  be understood  as eliciting the 
same type of interests as those arising from the other matters addressed in the enumerat ed 
subparagraphs of Article  XXI(b) .  
7.75.   Moreover, t he reference to "war"  in conjunction with "or other emergency in international 
relations"  in subparagraph (iii) , and the interests that generally arise during war, and from the 
matters addressed in subparagraphs (i) and (ii), suggest  that political or economic differences  
between Members  are not sufficient , of themselves,  to constitute an emergency in international 
                                                
149 Appellate Body Reports, US – Shrimp , para. 136; China – Raw Materials , para. 355; and 
China  – Rare Earths , para. 5.90.  
150 Shorter Oxford English Dictionary , 6th edn , A. Stevenson (ed.) (Oxford University Press 2007), 
Vol. 2, p. 819.  The Panel  observes that in the GATT 1994, the term "emergency" is used in only two places. 
First, the term is employed in Article XXI(b)(iii) as part of the phrase "other emergency in international 
relations". Second, the term appears in the title of Article XIX, w hich refers to "emergency action on imports of 
particular products". The word "emergency" is not, however, used in the text of Article XIX itself.  
151 Black's Law Dictionary , 8th edn, B.A. Garner (ed.) (West Group 2004), p. 836. The same concept is 
used in A rticle 2(4) of the UN Charter, which provides that "All Members shall refrain in their international 
relations from the threat or use of force against the territorial integrity or political independence of any state, 
or in any other manner inconsistent wit h the Purposes of the United Nations ." (Charter of the United Nations, 
done at San Francisco, 26 June 1945, 1 UN Treaty Series XVI, available at: 
https://treaties.un.org/doc/Publication/UNTS/No%20Volume/Part/un_charter.pdf.)  
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relations for purposes of subparagraph (iii) . Indeed, it is normal to expect that Members will, from 
time to time, encounter  political or economic conflicts with other Members or states. While such 
conflicts could sometimes  be considered urgent or serious i n a political sense, they will not be 
"emergencies in international relations" within the meaning of subparagraph (iii) unless they give 
rise to defence and military interests, or maintenance of law and public order  interests .  
7.76.   An emergency in internationa l relations would , therefore, appear to refer generally to a 
situation of armed conflict, or of latent armed conflict, or of heightened tension or crisis, or of general 
instability engulfing or surrounding a state .152 Such situations give rise to particular types of interests 
for the Member in question, i.e.  defence or military interests, or maintenance of law and public order  
interests .153 
7.77.   Therefore, as the existence of an emergency in international relations is an objective state of 
affairs, the determination of whether the action was "taken in time of" an "emergency in international 
relations" under subparagraph (iii) of Article XXI(b) is that of an objective fact, subject to objective 
determination.  
7.78.   As a next step, the Panel considers whether the object and purpose of the GATT 1994 and 
the Marrakesh Agreement Establishing the World Trade Organization (WTO Agreement) also 
supports an inter pretation of Article XXI(b)(iii) which mandates an objective review of the 
requirements of subparagraph (iii).   
7.79.    Previous panels and the Appellate Body have  stated that a general  object and purpose of the 
WTO Agreement, as well as of the GATT  1994, is to promote the security and predictability of the 
reciprocal and mutually advantageous arrangements and the substantial reduction of tariffs and 
other barriers to trade.154 At the same time, the GATT 1994 and the WTO Agreements provide that, 
in specific circums tances, Members may depart from their GATT and WTO obligations in order to 
protect other non -trade interests. For example, the general exceptions under Article XX of the 
GATT  1994 accord to Members a degree of autonomy  to adopt measures that are otherwise 
incompatible with their WTO obligations, in order to achieve particular non -trade legitimate 
objectives, provid ed such measures are not used merely as an excuse to circumvent their GATT and 
WTO obligations. These concessions, like other exceptions and esca pe clauses built into the 
GATT  1994 and the WTO Agreements, permit Members a degree of flexibility that was considered 
necessary to ensure the widest possible acceptance of the GATT 1994 and the WTO Agreements. 
It would be entirely contrary to the security  and predictability of the multilateral trading system 
established by the GATT 1994 and the WTO Agreements, including the concessions that allow for 
departures from obligations in specific circumstances, to interpret Article XXI as an outright 
potestative condition, subjecting the existence of a Member's  GATT and WTO obligations to a mere 
expression of the unilateral will of that Member.  
7.80.   In the Appendix  to this Report, the Panel surveys the pronouncements of the 
GATT  contracting  parties and WTO Members to determine whether the conduct of the 
GATT  contracting parties and the WTO Members regarding the application of Article XXI reveals a 
common understanding of the parties as to the meaning of this provision. The Panel's survey reveals 
differences in position s and the absence of a common understanding regarding the meaning of 
Article  XXI. In the Panel's view, this record does not reveal any subsequent practice establishing an 
                                                
152 This interpretation of an eme rgency in international relations is consistent with the preparatory work, 
referred to in paragraph  7.92 below, which indicates that the United States, when proposing the provision of 
the Geneva Draft of the ITO Charter that was carried over into Article X XI of the GATT 1947, and in referring to 
an "emergency in international relations", had in mind particularly the situation that existed between 1939 and 
1941. During this time, the United States had not yet participated in the Second World War, yet owing t o that 
situation, had still found it necessary to take certain measures for the protection of its essential security 
interests.  
153 This understanding is well -entrenched historically in diplomatic practice. See, e.g. Article 11 of the 
Covenant of the League of Nations: "Any war or threat of war, whether immediately affecting any of the 
members of the League or not, is hereby declared a matter of concern to the whole League … [i]n case any 
such emergency should arise …". ( Covenant of the League of Nations, done at Paris, 28 June 1919, League of 
Nations Treaty Series, Vol. 108, p. 188.)  
154 See Appellate Body Reports, EC – Computer Equipme nt, para. 82; EC – Bananas III (Article 21.5 – 
Ecuador II) / EC – Bananas III (Article 21.5 – US), para. 433; Argentina – Textiles and Apparel , para. 47; and 
EC – Chicken Cuts , para. 243.  
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agreement between the Members regarding the interpretation of Article XXI in the sense of 
Article  31(3)(b) of the Vienna Convention.155 
7.81.   It is notable, however, that a significant majority of occasions on which Article XXI (b)(iii)  was 
invoked concerned situations of armed conflict and acute international crisis, where heightened 
tensions could lead to armed conflict, rather than protectionism under the guise of a security issue. 
It therefore appears that Members have generally exercised restraint in their invocations of 
Article  XXI(b)(iii) , and have endeavoured to separate military and ser ious security -related conflicts 
from economic and trade disputes. The Panel does not assign any legal significance to this 
observation, but merely notes that the conduct of Members attests to the type of circumstance which 
has historically warranted the in vocation of Article XXI (b)(iii) . 
7.82.   In sum , the Panel considers that the ordinary meaning of Article XXI(b) (iii), in its context and 
in light of the object and purpose of the GATT 1994 and the WTO Agreement more generally, is that 
the adjectival clause "which  it considers" in the chapeau of Article XXI(b) does not qualify the 
determination of the circumstances in subparagraph (iii). Rather, for action to fall within the scope 
of Article XXI(b), it must objectively be found to meet the requirements in one of th e enumerated 
subparagraphs of that provision.156  
7.5.3.1.2   Negotiating history of Article XXI of the GATT 1947  
7.83.   This conclusion that the Panel has reached based on its textual and contextual interpretation 
of Article XXI(b)(iii), in the light of the object and purpose  of the GATT 1994 and WTO Agreement, 
is confirmed by the negotiating history  of Article XXI of the GATT  1947.157   
7.84.   The Panel recalls that t he GATT 1947 arose out of a proposal by the United States to establish 
an International Trade Organization (ITO) , an or ganization through which the United States and 
other countries would harmonize policies in respect of international trade and employment.158 The 
                                                
155 It is to be noted that statements of position of individual GATT c ontracting parties made prior to 
April 1989 should be  understood in the context of the positive consensus rule that then applied to the 
establishment of dispute settlement panels, the setting of their terms of refe rence, and the adoption of panel 
reports.  In a Decision of the GATT CONTRACTING PARTIES taken in April 1989, the contracting parties agreed 
to implement a number of improvements to the GATT dispute settlement rules and procedures, including the 
establishment of panels or working parties at the Cou ncil meeting following that at which the request first 
appeared on the Council's regular agenda, unless at that meeting the Council decided otherwise. 
(See Improvements to the GATT Dispute Settlement System Rules and Procedures, Decision of 12 April 1989, 
L/6489, 13 April 1989, section F(a)  (the April 1989 Decision). See also ibid . section F(b) on the establishment 
of panels and working parties with standard terms of reference. ) For the application of the April 1989 Decision 
to a 1991 request by Yugoslavia for the establishment of a panel to examine certain measures imposed by the 
European Communities, see paras.  1.63-1.66 of the Appendix  to this Report.  
156 The Panel notes that Ukraine and Russia both referred to the interpretations of the International 
Court  of Justice (ICJ) of security exceptions in bilateral treaties between Nicaragua and the United States (in 
Case of Military and Paramilitary Activities in and Against Nicaragua ), and between the Islamic Republic of Iran 
and the United States (in Case Conce rning Oil Platforms ) in the course of their arguments. (Ukraine's second 
written submission, paras. 81 -91; and Russia's opening statement at the second meeting of the Panel, 
paras.  28-40.) The Panel considers that the conclusions of the Court in both cases  were limited to the specific 
provisions of the bilateral treaties under consideration. In Case of Military and Paramilitary Activities in and 
Against Nicaragua, the Court did not purport to interpret Article XXI of the GATT 1947, but merely referred to 
the provision a contrario in order to highlight the absence of the adjectival clause "which it considers" from the 
security exception at issue (International Court of Justice, Merits, Case of  Military and Paramilitary Activities in 
and Against Nicaragua  (Nicaragua v. United States of America) (1986) ICJ Reports , p. 116.) Similarly, in 
Case Concerning Oil Platforms, the Court's conclusions were limited to a security exception lacking the same 
adjectival clause. (International Court of Justice, Merits, Case Concerning Oil Platforms , (Islamic Republic of 
Iran v. United States of America) (2003) ICJ Reports, p. 183.) Con sequently, the Panel does not consider these 
cases to be material to its interpretation of Article XXI(b)(iii) of the GATT 1994.  
157 The Appellate Body has previously had recourse to the preparatory work of the ITO Charter as a 
supplementary means of treaty interpretation in order to confirm the meaning of corresponding provisions in 
the GATT 1994. (See, e.g. Appellate Body Reports, Japan –Alcoholic Beverages II, fn 52, DSR  1996:I, 97, 
p. 104; Canada – Periodicals, p. 34, DSR 1997:I, p. 449; and US – Line Pip e, para. 175.)  
158 Preparatory work on the ITO Charter began in November 1945 with the issuance by the 
United  States of a document entitled " Proposals for Expansio n of World Trade and Employment". 
(See United States, Department of State, " Proposals for Expa nsion of World Trade and Employment ", 
Publication 2411, Commercial Policy Series 79, November 1945, p. 1.)  In February 1946, the Economic and 
Social Council of the United Nations adopted a resolution calling for an international conference on trade and 
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text of the ITO Charter was negotiated over four sessions between October 1946 and March  1948. 
Towards the end of  the first negotiating session (held in London between October and 
November  1946), the Preparatory Committee decided to give prior effect to the tariff provisions of 
the ITO  Charter by means of a general tariff agreement which would provisionally apply amo ng a 
subset of ITO m embers  until the ITO Charter entered into force.159 The provisions of the general  tariff 
agreement were  to be taken from  the provisions of the ITO Charter then being negotiated .160 The 
texts of the ITO Charter and of the general tariff agreement were negotiated in parallel through the 
second negotiating session (held in New York between January and February  1947) and the third 
negotiating session (held in Geneva between April and Oc tober 1947).  
7.85.   The United States originally proposed, in a draft submitted to the Preparatory Committee in 
September 1946,  the inclusion of a single general exceptions clause that would apply to the 
General  Commercial Policy chapter of the ITO Charter.161 The clause  began with "[n]othing in 
Chapter  IV of this Charter shall be construed to prevent the adoption or enforcement by any Member 
of measures" followed by paragraphs that included a number of the general exceptions later 
appearing in Article  XX of the GA TT 1947, as well as others later reflected in Article XXI of the 
GATT  1947 (specifically paragraphs (c), (d), (e), and (k)) .162  
7.86.   The draft of the ITO Charter prepared at the New York negotiating session in February 1947  
(the New York Draft)  similarly contain ed a single general exceptions clause in the chapter on 
General  Commercial Policy.163 Article 37 of the New York Draft provided that:  
Subject to the requirement that such measures are not applied in a manner which would 
constitute a means of arbitrary or unj ustifiable discrimination between countries where 
the same conditions prevail, or a disguised restriction on international trade, nothing in 
Chapter V  shall be construed to prevent the adoption or enforcement by any Member 
of measures:  
                                                
employment, and established a Preparatory Committee of 19 countries to prepare a draft charter of the ITO.  
(See United States, Department of State, " Suggested Charter for an International Trade Organization of the 
United Nations", Publication 2598, Commercial  Policy Series 93, September 1946, foreword (US Draft 
Charter).)  
159 See, e.g. Preparatory Committee on the International Conference on Trade and Employment, 
Procedures for Giving Effect to Certain Provisions of the Proposed ITO Charter by Means of a General  
Agreement on Tariffs and Trade Among the Members of the Preparatory Committee, Report of the 
Sub-Committee on Procedure to Committee II, E/PC/T/C.II/58, pp. 12 -14. 
160 Report of the First Session of the Preparatory Committee of the United Nations Conference  on Trade 
and Employment, E/PC/T/33, Annexure 10, "Multilateral Trade -Agreement Negotiations, Procedures for Giving 
Effect to Certain Provisions of the Charter of the International Trade Organization by Means of a General 
Agreement on Tariffs and Trade Amo ng the Members of the Preparatory Committee", section B, p. 48 and 
section K, p. 51. According to the Report, the General Agreement on Tariffs and Trade "should conform in 
every way to the principles laid down in the Charter and should not contain any prov ision which would prevent 
the operation of any provision of the Charter". (Ibid.)  
161 Article 32 of the US Draft Charter. (US Draft Charter, Chapter IV "General Commercial Policy", 
section I "General Exceptions", "General Exceptions to Chapter IV", Article  32, p. 24.)  
162 Ibid. The US Draft Charter also included a clause in Chapter VI "Intergovernmental Commodity 
Arrangements" providing that any "justiciable issue" arising specifically from any ruling of the Conference 
interpreting Article 32, paragraphs (c), (d), (e) or ( k), dealing with security, could be referred as a dispute to 
the ICJ. (Ibid.  Article  76, pp. 45 -46.) 
163 The first draft of the ITO Charter resulting from the London round of negotiations in November 1946, 
the London Draft, merely included a placeholder for a general exceptions clause to Chapter V on General 
Commercial Policy, Article 37, which was "[t]o be considered and drafted at a later stage". (Report of the First 
Session of the Preparatory Committee of the United Nations Conference on Trade and Employme nt, E/PC/T/33, 
Appendix "Charter of the International Trade Organization of the United Nations", p. 33.) The London Draft did, 
however,  contain a general security exception clause in Chapter VII on Inter -Governmental Commodity 
Arrangements, as well as a cl ause providing for referral to the ICJ on the security paragraphs of Article 37 
specifically. (Ibid. Article 59, p. 37 and Article 86, p. 41.) The partial draft of the general tariff agreement 
concluded at this stage also included a placeholder envisaging the possibility of a general exceptions clause 
modelled after Article 37 of the ITO Charter. (Report of the First Session of the Preparatory Committee of the 
United Nations Conference on Trade and Employment, E/PC/T/33, Annexure 10, "Multilateral Trade -Agreement 
Negotiations, Procedures for Giving Effect to Certain Provisions of the Charter of the International Trade 
Organization by Means of a General Agreement on Tariffs and Trade Among the Members of the Preparatory 
Committee", Article IV, p. 52.)  
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(a) Necessary to pro tect public morals;  
(b) For the purpose of protecting human, animal or plant life or health, if corresponding  
domestic  safeguards under similar conditions exist in the importing country;  
(c) Relating to fissionable materials;  
(d) Relating to the traffic in  arms, ammunition and implements of war and to such traffic 
in other goods and materials as is carried on for the purpose of supplying a military 
establishment;  
(e) In time of war or other emergency in international relations, relating to the 
protection of  the essential security interests of a Member;  
… 
(k) Undertaken in pursuance of obligations under the United Nations Charter for the 
maintenance or restoration of international peace and security.164 
7.87.   The separation of these exceptions into two distinct claus es was first suggested during the 
third negotiating session in Geneva. In May 1947, the United States proposed that the security 
exceptions that appeared in the clause be moved to the end of the ITO Charter so that they would 
be general exceptions to the w hole Charter and not just the chapter on General Commercial Policy.165 
The United  States also propo sed that this new provision contain the introductory language " [n]othing 
in this Charter shall be construed to prevent the adoption or enforc ement by any Membe r of 
measures" , which would then be followed by the list of paragraphs transferred from Article 37.166  
7.88.   The specific language for the new security exceptions that would apply throughout the whole 
of the Charter was developed from a proposal submitted by the United States  delegation at the 
Geneva negotiating session in July 1947.167  
7.89.   According to Vandevelde's study of the internal documents of the United States delegation 
negotiating the ITO Charter, the  US delegation  arrived at the language of this proposal aft er 
deliberating as to whether an ITO member sh ould effectively be able to avoid any Charter obligation 
by the unilateral invocation of its essential security interests , or whether any elem ent of the security 
exceptions sh ould be subject to review by the Or ganization .168 The members of the delegation were 
                                                
164 Repor t of the Drafting Committee of the Preparatory Committee of the United Nations Conference on 
Trade and Employment, E/PC/T/34 , pp. 31 -32. The New York Draft also retained a slightly modified version of 
the security exception to the chapter on Inter -Governme ntal Commodity Arrangements, as well as the clause 
providing for referral to the ICJ on a provisional basis. (Ibid. Article 59, pp. 43 -44 and Article 86, pp. 51 -52.) 
The draft of the general tariff agreement  concluded at this stage contained substantially the same general 
exceptions clause in relation to the chapter on General Commercial Policy. (Drafting Committee of the 
Preparatory Committee of the United Nations Conference on Trade and Employment, Draft General Agreement 
on Tariffs and Trade, E/PC/T/C.6/ 85, Article XX,  pp. 31 -32.) The draft of the general tariff agreement did not, 
however, contain a clause providing for referral of security issues to the ICJ. (Ibid. Article XXIV, p. 34.)  
165 United States Delegation, Second Session of the Preparatory Commit tee of the United Nations 
Conference on Tr ade and Employment, E/PC/T/W/23, p. 5; and United States Delegation, Second Session of 
the Preparatory Committee of the United Nations Conf erence on Trade and Employment, Draft Charter,  
E/PC/T/W/153, Article XIX, p. 9.  
166 United States Delegation, Second Session of the Preparatory Committee of the United Nations 
Conference on Tr ade and Employment, E/PC/T/W/23, p. 5.  The draft of the general tariff agreement  concluded 
as of 24 July 1947 reflected these developme nts, including a general exceptions clause separated into two 
subsections, one containing those justifications later reflected in Article XX of the GATT 1947 (including the 
language of the chapeau to Article XX of the GATT 1947) and the other containing th ose justifications later 
reflected in Article XXI of the GATT 1947 and preceded by the new introductory language proposed by the 
United States. (Report of the Tariff Negotiations Working Party, General Agreement on Tariffs and Trade, 
E/PC/T/135, Article XI X, pp. 53 -54.) 
167 United States Delegation, Second Session of the Preparatory Committee of the United Nations 
Conference on Tr ade and Employment, E/PC/T/W/23, p. 5.  
168 See K. Vandevelde, The First Bilateral Investment Treaties: U.S. Postwar Friendship, Comme rce, and 
Navigation Treaties , (Oxford Universit y Press 2017), pp. 145 -154. Vandevelde's study of the history of 
US postwar FCN Treaties includes  a chapter on the ITO Charter. As stated in the introduction to his book, 
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divided between those who wanted to preserve the United States' freedom of action in relation to 
its security interests by providing that each ITO m ember would have independent power to interpret 
the language  of the exception169, and those who believed that such a means for unilateral action 
would be abused by some countries and destroy the efficacy of the entire Charter.170 At issue was 
whether the proposed draft should provide that nothing in the Charter would p reclude any action 
"which [a  member] may consider to be necessary and to relate to" the various enumerated topics, 
such as fissionable materials, traffic in arms or an emergency in international relations, or whether 
the original language from Article 37 o f the New York Draft, which used the phrase "relating to" 
should be retained.171  
7.90.   Those favouring the position  that some elements of the security exceptions should be subject 
to review by the Organization  considered that the risk of abuse by some countries  outweighed 
concerns regarding the scope of action left to the United States by the Charter.172 One delegate 
advocating this position stated that "it would be far better to abandon all work on the Charter" than 
to place a provision in it that would, "under the  simple pretext that the action was taken to protect 
the national security of the particular country, provide a legal escape from compliance with the 
provisions of the Charter ".173 
7.91.   After a vote, those favouring the above  position prevailed.174 Their position, that the scope of 
unilateral action accorded to a Member invoking the security exception s would be limited to the 
necessity of the measure and would not extend to the determination of  the other elements of the 
                                                
Vandevelde's  research relied on materi als on the negotiating histories  of US postwar FCN Treaties and of the 
ITO Charter which are maintained in the US  National Archives and Research Administration (NARA) facility in 
College Park, Maryland , USA . (K. Vandevelde, The First Bilateral Investment T reaties: U.S. Postwar Friendship, 
Commerce, and Navigation Treaties , (Oxford Universit y Press 2017),  pp. 5-9.)  
169 Vandevelde recounts that the US delegation considered and rejected a proposal drafted by the 
US War Department's representative on the US dele gation to add a new paragraph to the proposed security 
exception. The new paragraph would have provided that each ITO member would have independent power of 
interpretation of the language of the exception, and that the provisions of Article 86 of the Chart er relating to 
disputes concerning the interpretation and application of the Charter would not apply to the security exception. 
(K. Vandevelde, The First Bilateral Investment Treaties: U.S. Postwar Friendship, Commerce, and Navigation 
Treaties , (Oxford Uni versit y Press 2017), p. 148 (referring to Second Meeting of the UN Preparatory Committee 
for the International Conference on Trade and Development Geneva, Minutes of Delegation Meeting, July 4, 
NARA, Record Group 43, International Trade Files, Box 133, Fol der marked "Minutes US Delegation (G eneva 
1947) April -June 20, 1947 ").) 
170 Ibid. p. 149 (referring to Second Meeting of the UN Preparatory Committee for the International 
Conference on Trade and Development Geneva, Minutes of Delegation Meeting, July 4, NAR A, Record Group 
43, International Trade Files, Box 133, Folder marked "Minutes US Delegation (G eneva 1947) April -June 20, 
1947"). 
171 The language, "and to relate to", was considered to make clear that the invoking member could take 
unilateral action, while the original language from Article 37 of the New York Draft, which used the phrase 
"relating to", was considered to indicate that the determination to be made by an ITO member was limited to 
whether a measure it adopted was necessary, and not also whether the measure related to the enumerated 
topics. (Ibid. p. 148 (referring to Second Meeting of the UN Preparatory Committee for the International 
Conference on Trade and Development Geneva, Minutes of Delegation Meeting, July 4, NARA, Record Group 
43, Interna tional Trade Files, Box 133, Folder marked "Minutes US Delegation (G eneva 1947) April -June 20, 
1947").) 
172 Ibid. p. 149 (referring to Second Meeting of the UN Preparatory Committee for the International 
Conference on Trade and Development Geneva, Minutes of  Delegation Meeting, July 4, NARA, Record Group 
43, International Trade Files, Box 133, Folder marked "Minutes US Delegation (G eneva 1947) April -June 20, 
1947"). 
173 Ibid. (referring to Second Meeting of the UN Preparatory Committee for the International Conference 
on Trade and Development Geneva, Minutes of Delegation Meeting, July 4, NARA, Record Group 43, 
International Trade Files, Box 133, Folder marked "Minutes US Delegation (G eneva 1947) April -June 20, 
1947"). 
174 Ibid. p. 149 (referring to Second Meeting of the UN Preparatory Committee for the International 
Conference on Trade and Development Geneva, Minutes of Delegation Meeting, July 4, NARA, Record Group 
43, International Trade Files, Box 133, Folder marked "Minutes US Delegation (G eneva 1947) April -June 20, 
1947"). Vandevelde records that some members of the US delegation reasoned that, as a practical matter, the 
United States would not need a right to engage in unfettered unilateral action. (Ibid. (referring to Second 
Meeting of the U N Preparatory Committee for the International Conference on Trade and Development Geneva, 
Minutes of Delegation Meeting, July 4, NARA, Record Group 43, International Trade Files, Box 133, Folder 
marked "Minutes US Delegation (G eneva 1947) April -June 20, 19 47").) 
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provision, was reflected in t he United  States' proposal of 4 July 1947. The proposed Article 94 of the 
ITO Charter  provided that:  
Nothing in this Charter shall be construed to require any Member to furnish any 
information the disclosure of which it considers contrary to its essential security 
interests, or to prevent any Member from taking any action which it may consider to be 
necessary to such interests:  
a) Relating to fissionable materials or their source materials;  
b) Relating to the traffic in arms, ammunition and implements of war and to such traffic 
in other goods and materials as is carried on for the purpose of supplying a military 
establishment;  
c) In time of war or other emergency in international relations, relating to the protection 
of its essential security  interests;  
d) Undertaken in pursuance of obligations under the United Nations Charter for the 
maintenance of international peace and security.175  
7.92.   The United States  delegation's interpretation of its proposal for the security exception  is 
reflected in discu ssions of the provision during the Geneva negotiating session on 24  July 1947. 
In response to a question from the delegate for the Netherlands as to the meaning of the term 
"essential security interests" and "emergency in international relations"176, the del egate for the 
United States replied : 
I suppose I ought to try and answer that, because I think the provision 
[subparagraph  (e) of Article 37 of the New York Draft] goes back to the original draft 
put forward by us and has not been changed since.  
We gave a  good deal of thought to the question of the security exception which we 
thought should be included in the Charter. We recognized that there was a great danger 
of having too wide an exception and we could not put it into the Charter, simply by 
saying: "by any Member of measures relating to a Member's security interests" because, 
that would permit anything under the sun. Therefore we thought it well to draft 
provisions which would take care of real essential security interests and, at the same 
                                                
175 Second Session of the Preparatory Committee of the United Nations Conference on Trade and 
Employment, Draft Charter,  E/PC/T/W/236,  Annex A , p. 13. The United States proposed that this new article 
replace the national security exceptions applicable  to both the chapter on General Commercial Policy and the 
chapter on Inter -Governmental Commodity Arrangements. (Ibid.)  
176 The delegate's specific questions were:  
 
What do we mean —"emergency in international relations"? Is that "immediate ", through a war? —
or what is the "emergency in international relations" ? 
The second point that is troubling me here is, what are the "essential security interests" of a 
Member? I find that kind of exception very difficult to understand, and therefore possibly a very 
big loop hole in the whole Charter.  
For instance, I might say that  at present  we have a time of emergency  as a number of Peace 
Treaties have not yet been signed  and that therefore it might still be  essential to have as much 
food in my country as possible . This wou ld then force us to do everything to develop our  agriculture, 
notwithstanding all of the provisions of this Charter. This example might be a little far fetched, but  
I only give it here to prove what is really worrying me  about this subparagraph of which  I still 
cannot get the proper meaning.  
(Second Session of the Preparatory Committee of the United Nations Conference on Trade and Employment, 
Verbatim Report, Thirty -Third Meeting of Commission A Held on Thursday, 24 July 1947, E/PC/T/A/PV/33, p. 19  
(as cor rected by Second Session of the Preparatory Committee of the United Nations Conference on Trade and 
Employment, Corrigendum to Verbatim Report of Thirty -Third Meeting of Commission A, 
E/PC/T/A/PV/33.Corr.2 ).) 
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time, so far a s we could, to limit the exception  so as to prevent the adoption of 
protection for maintaining industries under every conceivable circumstance.  
With regard to subparagraph (e) , the limitation, I think, is primarily in the time . First, 
"in time of war" . I think no one would question the need of a Member, or the right of a 
Member, to take action relating to its security interests  in time of war  and to determine 
for itself —which I think we cannot deny —what its security interests are.  
As to the second provi sion, "or other emergency in international relations, " we had in 
mind particularly the situation which existed before the last war, before our own 
participation in the last war, which was not until the end of 1941. War had been going 
on for two years in Eu rope and, as the time of our own participation approached, we 
were required, for our own protection, to take many measures which would have been 
prohibited by the Charter. Our exports and imports were under rigid control. They were 
under rigid control beca use of the war then going on.177 
7.93.   Ultimately, the delegate for the United States emphasized the importance of the draft security 
exceptions , which  would allow ITO m embers to take measures for security reasons, but not as 
disguised restrictions on internationa l trade:  
I think there must be some latitude here for security measures. It is really a question 
of a balance. We have got to have some exceptions. We cannot make it too tight, 
because we cannot prohibit measures which are needed purely for security reason s. On 
the other hand, we cannot make it so broad that, under the guise of security, countries 
will put on measures which really have a commercial purpose.  
We have given considerable thought to it and this is the best we could produce to 
preserve that prope r balance.178 
7.94.   During that same discussion, the delegate for Australia questioned the possible effect of 
moving the security exceptions to the end of the Charter , away from the provisions providing for 
consultations and dispute settlement . In particular , the delegate questioned whether this would 
mean that the security exceptions would not be subject to consultations and dispute settlement. 
The delegate for the United  States responded as follows:  
… I think that the place of an Article in the Charter has nothi ng to do with whether or 
not it comes under Article 35 [predecessor to Articles XXII and XXIII of the GATT 1947]. 
Article 35 is very broad in its terms, and I think probably covers any action by any 
Member under any provision of the Charter. It is true tha t an action taken by a Member 
under Article 94 could not be challenged in the sense that it could not be claimed that 
the Member was violating the Charter ; but if that action, even though not in conflict 
with the terms of Article 94, should affect another Member, I  should think that that 
Member would have the right to seek redress of some kind under Article 35 as it now 
stands. In other words, there is no exception from the application of Article 35 to this 
or any other Article.179 
                                                
177 Second Session of the Preparatory Committee o f the United Nations Conference on Trade and 
Employment, Verbatim Report, Thirty -Third Meeting of Commission A Held on Thursday, 24 July 1947, 
E/PC/T/A/PV/33,  pp. 20 -21 (as corrected by Second Session of the Preparatory Committee of the United 
Nations Conference on Trade and Employment, Corrigendum to Verbatim Report of Thirty -Third Meeting of 
Commission A, E/PC/T/A/PV/33.Corr.3, pp. 20 -21). (emphasis added)  See also Second Session of the  
Preparatory Committee of the United Nations Conference on Trade and Employment, Corrigendum to Verbatim 
Report of Thirty -Third Meeting of Commission A, E/PC/T/A/PV/33.Corr.1; and Second Session of the 
Preparatory Committee of the United Nations Conference  on Trade and Employment, Corrigendum to Verbatim 
Report of Thirty -Third Meeting of Commission A, E/PC/T/A/PV/33.Corr.2.  
178 Second Session of the Preparatory Committee of the United Nations Conference on Trade and 
Employment, Verbatim Report, Thirty -Third Meeting of Commission A  Held on Thursday, 24 July 1947 , 
E/PC/T/A/PV/33,  p. 21.   
179  Second Session of the Preparatory Committee of the United Nations Conference on Trade and 
Employment, Verbatim Report, Thirty -Third Meeting of Commission A  Held on Thursday, 24 July 1947 , 
E/PC/T/A/PV/33,  pp. 26 -27. See also ibid. p. 30; and Second Session of the Preparatory Committee of the 
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7.95.   The delegate for Australia stated that it should be clear that the terms of the proposed 
Article  94 would be subject to the provisions of paragraph 2 of Article 35 (predecessor to 
Article  XXIII: 1 of the GATT 1947) and on the basis of the assurance from the delegate for the United 
States that this was so, stated that Australia did not wish to make any reservation to Article  94.180 
7.96.   The version of Article 94 of the Geneva Draft of the ITO Charter, adopted on 22 August 1947, 
was entitled "General Exceptions" and contained wording nearly id entical to that appearing in 
Article  XXI of the GATT 1947:  
Nothing in this Charter shall be construed  
(a) to require any Member to furnish any information the disclosure of which it considers 
contrary to its e ssential security interests, or  
(b) to prevent any Member from taking any action which it considers necessary for the 
protection of its essential security interests  
(i)  relating to fissionable materials or the materials from which they are derived;  
(ii) relating to the traffic in arms, ammunit ion and implements of war and to such traffic 
in other goods and materials as is carried on directly or indirectly for the purpose of 
supplying a military establishment;  
(iii) taken in time of war or other emergency in international relations; or  
(c) to pr event any Member  from taking any action in pursuance of its obligations under 
the United Nations Charter for the maintenance of int ernational peace and security.181 
7.97.   By September 1947, these developments were also reflected in the draft text of the 
general  tariff agreement in a separate provision entitled "Security Exceptions", which mirrored the 
language of Article 94 of the Geneva Draft of the ITO Charter.182 
                                                
United Nations Conference on Trade and Employment, Corrigendum to Verbatim Report of Thirty -Third Meeting 
of Commission A, E/PC/T/A/PV/33. Corr.3, p. 1 (referring to p. 29 of the Verbatim Report).  
180 Second Session of the Preparatory Committee of the United Nations Conference on Trade and 
Employment, Verbatim Report, Thirty -Third Meeting of Commission A  Held on Thursday, 24 July 1947, 
E/PC/T/A/PV/33, p . 28; and Second Session of the Preparatory Committ ee of the United Nations Conference on 
Trade and Employment , Summary Record of the 33rd Meeting of Commission A Held on Thursday, 24 July 
1947, E/PC/T/A/SR/33, pp. 4 -5. Later in July 1947, the  Sub-Committee on Chapters I, II and VII also deleted 
the clause  providing for referral to the ICJ on the security subparagraphs. (Second Session of the Preparatory 
Committee of the United Nations Conference on Trade and Employment , Report of the Legal Drafting 
Committee on Chapters I, II and VIII (Part A – Introductio n), E/PC/T/139, pp. 23 -34.) Throughout 
August  1947, the proposed text was subject to several additional amendments by a Legal Drafting Committee 
and then by Commission A, including restructuring the provision to introduce the three subparagraphs to 
paragra ph (b), as well as adding the words "directly or indirectly" to subparagraph (b)(ii). (See Second Session 
of the Preparatory Committee of the United Nations Conference on Trade and Employment , Report of the Legal 
Drafting Committee on Chapters I, II and VI II (Including Noting and Membership of the Executive Board), 
E/PC/T/159, pp. 41 -42; Second Session of the Preparatory Committee of the United Nations Conference on 
Trade and Employment , Summary Record of the Thirty -Sixth Meeting of Commission A Held on Tue sday, 
12 August 1947, E/PC/T/A/PV/36, pp. 16 -21; and Second Session of the Preparatory Committee of the United 
Nations Conference on Trade and Employment , Summary Record of the 40th (2) Meeting of Commission A Held 
on Friday, 15th August 1947, E/PC/T/A/SR/ 40(2), pp. 9 -11.) 
          181 Report of the Second Session of the Preparatory Committee of the United Nations Conference on 
Trade and Employment , E/PC/T/18 6, p. 56.  
182 The draft of the general tariff agreement  prepared as of 30 August 1947 included a genera l 
exceptions clause separated into two subsections, one containing those justifications later reflected in 
Article  XX of the GATT 1947 (including the language of the chapeau to Article XX) and the other containing 
language identical to that in Article 94 o f the Geneva Draft of the ITO Charter. (Second Session of the 
Preparatory Committee of the United Nations Conference on Trade and Employment, Report of the Legal 
Drafting Committee of the Tariff Agreement Committee on Part II of the General Agreement, E/PC /T/189,  
Article XIX,  pp. 47-49.) In September 1947, these subsections were separated into Articles XX and XXI, and 
entitled "General Exceptions" and "Security  Exceptions", respectively. (Second Session of the Preparatory 
Committee of the United Nations Con ference on Trade and Employment, Tariff Agreement Committee, Redraft 
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7.98.   The Panel considers that the foregoing negotiating history demonstrates that the drafters 
considered  that: 
a. the matters later reflected in Article XX and Article XXI of the GATT 1947 were considered 
to have a different character, as evident from their separation into two  articles ;  
b. the "balance" that was struck by the security exceptions was that Members wo uld have 
"some latitude" to determine what their essential security interests are, and the necessity 
of action to protect those interests, while potential abuse of the exceptions would be 
curtailed by limiting the circumstances in which the exceptions coul d be invoked to those 
specified in the subparagraphs of Article XXI(b); and  
c. in the light of this balance, the security exceptions would remain subject to the 
consultations and dispute settlement provisions set forth elsewhere in the Charter.  
7.99.   The Panel is also mindful that the negotiations on the ITO Charter and the GATT 1947 occu rred 
very shortly after the end of the Second World War. The discussions of "security" issues throughout 
the negotiating history should therefore be understood in that context.   
7.100.   The negotiating history  therefore confirms the Panel's interpretation of Arti cle XXI(b) of the 
GATT 1994 as requiring that the evaluation of whether the invoking Member has satisfied the 
requirements of the enumerated subparagraphs of Article XXI(b) be made objectively  rather than 
by the invoking M ember itself . In other words, ther e is no basis for treating the invocation of 
Article  XXI(b)(iii) of the GATT 1994  as an incantation that shields a challenged measure from all 
scrutiny.  
7.5.3.1.3   Conclusion on whether the clause "which it considers" in the chapeau of 
Article  XXI(b) qualifies the determination of the matters in the enumerated 
subparagraph s of that provision  
7.101.   The Panel concludes that the adjectival clause "which it considers" in the chapeau of 
Article  XXI(b) does not extend to the determination of the circumstances in e ach subparagraph. 
Rather, for action to fall within the scope of Article XXI(b), it must objectively be found to meet the 
requirements in one of the enumerated subparagraphs of that provision.  
7.5.3.2   Conclusion on whether the Panel has jurisdiction to review Rus sia's invocation of 
Article XXI(b)(iii) of the GATT 1994  
7.102.   It follows from the Panel's interpretation of Article XXI(b), as vesting in panels the power to 
review whether the requirements of the enumerated subparagraphs are met, rather than leaving it 
to the unfettered discretion of the invoking Member, that Article XXI(b)(iii) of the GATT 1994 is not 
totally "self-judging " in the manner asserted by Russia.  
7.103.   Consequently, Russia's argument that the Panel lacks jurisdiction to review Russia's  
invocation of Arti cle XXI(b)(iii)  must fail. The Panel's interpretation of Article XXI(b)(iii) also means 
that it rejects the United States' argument that Russia's invocation of Article XXI(b)(iii) is "non -
justiciable", to the extent that this argument also relies  on the al leged totally "self -judging" nature 
of the provision.183  
                                                
of the Final Act, General  Agreement on Tariffs and Trade and Protocols in Light of Discussions Which Have 
Taken Place in the Committee, E/PC/T/196, pp. 50 -53. See also Second Session of t he Preparatory Committee 
of the United  Nations Conference on Trade and Employment, Verbatim Report of the Eleventh Meeting of the 
Tariff Agreement Committee, E/PC/T/TAC/PV/11, pp. 23 -26.) 
183 Another way of making the argument that a Member's invocation of A rticle XXI(b)(iii) is 
non-justiciable is by characterizing the problem as a "political question", as was also advanced by the 
United  States. The ICJ has rejected the "political question" argument, concluding that, as long as the case 
before it or the reque st for an advisory opinion turns on a legal question capable of a legal answer, it is 
duty-bound to take jurisdiction over it, regardless of the political background or the other political facets of the 
issue. (See, for example, International Court of Just ice, Advisory Opinion, Certain Expenses of the United 
Nations , (United Nations) (1962) I.C.J. Reports, p. 155. See also International Criminal Tribunal for the Former 
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7.104.   Russia's invocation of Article XXI(b)(iii) being within the Panel's terms of reference under 
Article XXIII of the GATT 1994, as further elaborated and modified by the DSU , the Panel finds that 
it has jurisdiction to determi ne whether the requirements of Article XXI(b) (iii) of the GATT 1994  are 
satisfied . 
7.5.4   The measures at issue and their existence  
7.105.    In the preceding Section, the Panel found that it has jurisdiction to review 
Russia's  invocation of Article XXI(b)(iii). The Panel recalls that Russia also argues that certain 
measures and claims are outside the Panel's terms of reference because Ukraine's panel request 
does not comply with the requirements of Article 6.2 of the DSU.  
7.106.   For p resentational purposes , and in order not to interrupt the analysis of Article XXI, the 
Panel defers the exposition of its examination of  the terms of reference to Section 7.7  of the Report. 
For the reasons provided in that Section, the Panel finds that the  following measures are within its 
terms of reference (the measures at issue):  
a. 2016 Belarus Transit Requirements : Requirements that all international cargo transit by 
road and rail from Ukraine destined for the Republic of Kazakhstan or the Kyrgyz Republic , 
through Russia, be carried out exclusively from Belarus, and comply with a number of 
additional conditions  related to  identification seals and registration card s at specific control 
points on the Belarus -Russia border  and the Russia -Kazakhstan border .184 
b. 2016 Transit Bans on Non -Zero Duty and Resolution No. 778 Goods : Bans on all road and 
rail transit from Ukraine of: (i) goods that are subject to non -zero import duties according 
to the Common Customs Tariff of the EaEU ; and (ii) goods that fall within the scope of the 
import bans imposed by Resolution No. 778, which are destined for Kazakhstan or the 
Kyrgyz Republic.185 Transit of such goods  may only occur pursuant to a derogation 
requested by the Governments of Kazakhstan or the Kyrgyz Republic which is authorized 
by the Russian Government , in which case, the transit is subject to the 2016 Belarus 
Transit Requirements (above) . 
c. 2014 Belarus -Russia Border Bans on Transit of Resolution No. 778 Goods : Prohibitions  on 
transit from Ukraine across Russia, throug h checkpoints in Belarus, of goods subject to 
veterinary and phytosanitary surveillance and which are subject to the import bans 
implemented by Resolution  No. 778, along with related requirements that , as of 
30 November 2014,  such veterinary goods destined  for Kazakhstan or third countries enter 
Russia through designated checkpoints  on the Russian side of the external customs border 
of the EaEU and only pursuant to permits issued by the relevant veterinary surveillance 
authorities of the Government of Kazak hstan and the Rosselkhoznadzor , and that, as of 
24 November 2014, transit to third countries (including Kazakhstan) of such plant goods 
take place exclusively through the checkpoints across the Russian state border.186 
7.107.   Ukraine has presented evidence of the e xistence of the above -referenced measures, and the 
Panel is satisfied that these measures exist.187 This being so, the next question is whether these 
measures are inconsistent with Russia's obligations under Articles V and X of the GATT 1994 and 
commitments in Russia's Accession Protocol, or whether there can be no such inconsistency in the 
circumstances, because the measures were "taken in time of war or other emergency in international 
relations", and meet the other possible  conditions  of the chapeau of Art icle XXI(b).  
                                                
Yugoslavia, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Prosecutor v. Tadić (1995), 
Case No. IT -94-1-A, paras.  23-25.) Moreover, the Panel notes that in Mexico  –Taxes on  Soft Drinks , the 
Appellate  Body expressed the view that a panel's decision to decline to exercise validly established jurisdiction 
would not b e consistent with its obligations under Articles  3.2 and 19.2 of the DSU, or the right of a Member to 
seek redress of a violation of obligations within the meaning of Article 23 of the DSU. The Panel therefore 
considers that this way of characterizing the problem as a basis for the Panel to decline to review Russia's 
invocation of Article XXI(b)(iii) is also untenable. (Appellate Body Report, Mexico  – Taxes  on Soft Drinks , 
para. 53.) 
184 See para. 7.357.a below.  
185 See para. 7.357.b below.  
186 See para. 7.357.c below.  
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7.108.   The Panel notes in this regard the particular ity of the  exception specified in Article XXI(b) (iii). 
This provision acknowledges that a war or other emergency in international relations involves a 
fundamental change of circumstances which radically alters the factual matrix  in which the 
WTO-consistency of the measures  at issue  is to be evaluated. The Panel considers that an evaluation 
of whether measures are covered by Article XXI(b)(iii), as measures "taken in time o f war or other 
emergency in international relations" (unlike measures covered by the exceptions under Article XX) 
does not necessitate a prior determination that the y would be WTO -inconsistent if they had been 
taken in normal times , i.e. if they were not t aken in time of war or other emergency in international 
relations . This is because, for the reasons explained in  Section 7.5.6, there is no need to determine 
the extent of the deviation of the challenged measure from the prescribed norm in order to evaluat e 
the necessity of the measure, i.e. that there is no reasonably available alternative measure to 
achieve the protection  of the legitimate interests covered by the exception  which is not violative, or 
is less violative, of the prescribed norm.   
7.109.   The Panel thus considers that, once it has found that the measures at issue are within its 
terms of reference and that Ukraine has demonstrated their existence, the most logical next step in 
its analysis is to determine whether the measures are covered by subparagrap h (iii) of Article XXI(b), 
i.e. whether the measures were in fact taken during time of war or other emergency in international 
relations. Only if the Panel finds that the measures were not taken in time of war or other emergency 
in international relations would it become necessary to determine the consistency of the measures 
with the provisions of Articles V and X of the GATT 1994 , which are the subject of Ukraine's claims.  
7.110.   Accordingly, the Panel next determines whether the measures at issue fall within th e scope 
of subparagraph (iii) of Article XXI(b), as measures taken in time of  war or other emergency i n 
international relations.  
7.5.5   Whether the measures were "taken in time of war or other emergency in 
international relations" within the meaning of subparagra ph (iii) of Article XXI(b)  
7.111.   The Panel  recall s its interpretation of "emergency in international relations" within the 
meaning of subparagraph (iii) of Article XXI(b) as a situation of armed conflict, or of latent armed 
conflict, or of heightened tension or crisis, or of general instability engulfing or s urrounding a state .188  
7.112.   Russia, in its fi rst written submission, refers  to an emergency in international relations that 
occurred in 2014 , which led Russia to take various actions, including imposing the measures at 
issue.189 Russia affirms that the events cons tituting the emergency in international relations are well  
known to Ukraine and that this dispute raises issues concerning  politics, national security and 
international peace and security.190 It also explains  that one reason for formulating its invocation of  
Article XXI(b)(iii) in such general terms is that it is trying to "keep the issues such as wars, 
insurrections, unrests, international conflicts outside the scope of the WTO which is not designed for 
resolution of such crises and related matters ".191  
7.113.   Ukraine argues that Russia has not adequately identified or described the 2014 emergency, 
and has therefore not discharged its burden of proof.192 
7.114.    In its opening statement at the second meeting of the Panel, Russia posed a 
"hypothetical  question" as to whether c ircumstances similar to those listed would amount to an 
                                                
188 See para. 7.76 above.  
189 Russia's first written submission, para. 16.  
190 See, e.g. Russia's closing statement at the first meeting of the Panel, para. 6 ; and clos ing statement 
at the second meeting of the Panel, para. 3.  
191 Russia's closing statement at the second meeting of the Panel, para. 5.  
192 Ukraine professes not to know what Russia means when it refers to an emergency in international 
relations that arose in 2 014, stating that Ukraine and  the Panel "are still left in the dark as to what particular 
emergency in international relations causes the Russian Federation to adopt the measures at issue in order to 
protect its essential security interests ". (Ukraine's se cond written submission, para. 142. See also 
Ukraine's  opening statement at the second meeting of the Panel, para. 64. ) Russia, on the other hand, insists 
that Ukraine knows very well what emergency it is referring to. (Russia's opening statement at the fi rst 
meeting of the Panel, para. 30; and closing statement at the second meeting of the Panel, para. 4.)  
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emergency in international relations under subparagraph (iii)  of Article XXI(b).193 These hypothetical 
circumstances, as formulated by Russia, are : 
a. Unrest within the territory of a country neighbouring a Member, occurring in the immediate 
vicinity of the Member's border;  
b. The loss of control by that neighbouring country over its border;  
c. Movement of refugees from that neighbouring country to the Member's territory;  and 
d. Unilateral measures and sanctions imposed by that neighbouring country or by other 
countries, which are not authorized by the United Nations, similar to those imposed against 
Russia by Ukraine.194 
7.115.   When asked by the Panel how closely the hypothetical sit uation described above reflec ted 
the actual situation on the ground, the Russian representative explained that Russia had referred to 
the hypothetical "in order not to introduce again some information that Russia cannot disclose ".195 
The Russian representative then referred to a paragra ph from Ukraine's 2016 Trade Policy Review 
Report196 which, according to the Russian representative, explains , in Ukraine's words , "what is 
going on and how real these whole hypothetical questions are ".197 The paragraph refers  to "the 
annexation of the Autonom ous Republic of Crimea and the military conflict in the east" as factors 
that had adversely affected Ukraine's economic performance in 2014 and 2015.198  
7.116.   Ukraine objects to Russia's use of Ukraine's  2016 Trade Policy Review Report , noting that 
prior panels h ave refused to attach importance to the Trade Policy Review Mechanism (TPRM) of 
Members in considering the arguments of a party in dispute settlement proceedings.199 
7.117.   Paragraph A(i) of the TPRM states that the TPRM is "not … intended to serve as a basis for 
the enforcement of specific obligations under the covered Agreements or for dispute settlement 
procedures ". In two prior disputes, panels have rejected a complainant's reference to the report 
drawn up by the WTO Secretariat as part of the respondent's Trade Policy Review . In both instances, 
the reference was used as the  basis for  an argument that a measure was WTO -inconsistent.200 
                                                
193 Russia's opening statement at the se cond meeting of the Panel, para. 24 . 
194Ibid. 
195 Russian representative's oral response to the second question at the  second meeting of the Panel.  
196 Trade Policy Review Body, Trade Policy Review, Ukraine, Government Report prepared by Ukraine, 
WT/TPR/G/334.  Trade Policy Reviews are conducted by the Trade Policy Review Body based on two 
documents: a policy statement (report) by the Member under review and a comprehensive report drawn up by 
the WTO Secretariat on its own responsibility.  
197 Russian representative's oral response to the second question at the second meeting of the Panel.  
198 Trade Policy Review Bo dy, Trade Policy Review, Ukraine, Government Report prepared by Ukraine, 
WT/TPR/G/334 , para. 1.13.  
199 Ukrainian representative's oral comments on Russian representative's oral response to the 
Panel's  second question at the second meeting of the Panel; and Ukraine's combined response to Panel 
question Nos. 2 and 3 after the second meeting, para. 16  (referrin g, in particular, to paragraph A(i) of Annex 3 
to the WTO  Agreement ). 
200 In Canada – Aircraft , the complainant referred to the report drawn up by the WTO S ecretariat in 
connection with Canada's Trade Policy Review  to argue that Investissement -Québec  assistance to the regional 
aircraft industry conferred a "benefit" by "provid[ing] export guarantees for projects considered too risky by 
private financial insti tutions ". Recounting the objective in paragraph A(i) of the TPRM, the panel "attach[ed] no 
importance to the [TPR] of Canada in considering [the complainant's] arguments concerning 
Investissement -Québec  assistance to the regional aircraft industry ". (Panel  Report, Canada – Aircraft , 
paras.  9.267 (quoting Trade Policy Review Body, Trade Policy Review, Canada, Report by the Secretariat, 
WT/TPR/S/53, p. 59), and 9.274-9.275). In Chile – Price Band System , the complainant argued t hat the 
Price Band System at is sue was in the nature of a variable tariff, and for this purpose, referred to the  report 
drawn up by the WTO Secretariat in connection with Chile's Trade Policy Review , which stated that "[t]he price 
stabilization mechanism works as a variable levy since t he duty imposed on these goods varies according to 
their import price ." (Panel Report, Chile – Price Band System , para. 4.47.) The panel stated that, in the light of 
paragra ph A(i) of the TPRM, "such a Report should not be taken into account in the context  of dispute 
settlement proceedings."  (Ibid. fn 664 to para. 7.95.)  
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7.118.   The Panel  notes that the Russian representative referred to the relevant paragraph from 
Ukraine's 2016 Trade Policy Review Rep ort in order to show that the hypothe tical situation put 
forward in Russia's  opening statement at the  second meeting of the Panel has been referred to by 
Ukraine —in another context, it is true —as being "the annexation of th e Autonomous Republic of 
Crimea a nd the military conflict in the east ". Russia therefore used the reference to paragraph 1.13 
of Ukraine's  2016 Trade Policy Review Report  solely to further identify the situation that it had 
presented in its first written submission in the following genera l terms: "the emergency in 
international relations that occurred in 2014 that presented threats to the 
Russian  Federation's  essential security interests ".201 Russia had also previously asserted that the 
circumstances that led to the imposition of the measure s at issue were publicly available and known 
to Ukraine.202 Russia did not refer to the relevant paragraph of Ukraine's 2016 Trade Policy Review 
Report  as evidence that Ukraine (or Russia, for that matter)  charac terizes that  situation  as an 
emergency in inte rnational relations for the purposes of the present proceedings. The Panel therefore 
does not consider that paragraph A(i) of the TPRM applies to this situation, or that the Panel is 
thereby precluded  from taking into account Russia's reference to paragrap h 1.13 of Ukraine's 2016 
Trade Policy Review Report . 
7.119.   Accordingly, Russia has identified the situation that it considers to be an emergency in 
international relations by reference to the following factors: (a) the time -period in which it arose and 
continues  to exist, (b) that the situation involves Ukraine, (c) that it affects  the security of  
Russia's  border wi th Ukraine in various ways, (d) that it has resulted in other countries impos ing 
sanctions against Russia, and (e) that the situation in question is publicly known. The Panel  regard s 
this as sufficient, in the particular circumstances of this disput e, to clearly identify  the situation to 
which Russia is referring , and which it argues is an emergency in international relations . 
7.120.   Therefore , the Panel must determine  whether t his situation between Ukraine and Russia  that 
has existed since 2014 constitutes  an emergency in international relations within the meaning of 
subparagraph (iii) of Article XXI(b).  
7.121.   The Panel  notes that it is n ot relevant to  this determination which actor or actors bear 
international responsibility for the existence of this situation to which Russia refers. Nor is it 
necessary for the Panel to characterize the situation between Russia and Ukraine under international 
law in general.  
7.122.   There is evidence before the Panel  that, at least as of March 2014, and continuing at least 
until the end of 2016, relations between Ukraine and Russia had deteriorated t o such a degree that 
they were  a matter of concern to the international commun ity.203 By December 2016, the situation 
between Ukraine and Russia was recognized by the UN General Assembly  as involving armed 
conflict.204 Further  evidence of the gravity of the situation is the fact that, since 2014, a number of 
countries have imposed sanct ions against Russia in connection with this situation.205  
7.123.   Consequently, the Panel is satisfied that the situation between Ukraine and Russia since 
2014 constitutes an emergency in international relations, within the meaning of subparagraph (iii) 
of Article XXI(b)  of the GATT 1994 .  
                                                
201 Russia's first written submission, para. 16.  
202 Russia's opening statement at the first meeting of the Panel, para. 30.  
203 UN General Assembly Resolution No. 68/262, 27 March 2014, (Exhibit UKR -89). 
204 UN General Assembly Resolution No. 71/205 , 19 December 2016, (Exhibit UKR -91). This resolution 
makes explicit reference to the Geneva Conventions of 1949, which apply in cases of  declared war or other 
armed conflict  between High Contracting Parties.  (Ibid. p. 2.)  
205 Russia responded to these actions on 7 August 2014 by passing Resolution No. 778 and imposing 
sanctions on countries that had imposed sanctions against Russia . (Resolut ion No. 778, (Exhibit s UKR-10, 
RUS-7).) Decree No. 560  established the original parameters for the Russian Government to impose import 
bans on certain agricultural products, raw materials and foodstuffs originating in the states that had decided to 
impose economic sanctions against Russian legal entities or individuals, or joined in such a decision. 
(Decree  No. 560, (Exhibit s UKR-9, RUS-3).) Resolution  No. 778 originally imposed import bans on listed 
agricultural products, raw materials and food originating  from the United States, EU Member States, Canada, 
Australia and Norway. Decree No. 560 was subsequently extended by Decree No. 320 of 24 June 2015, 
Decree  No. 305  of 29 June 2016 and Decree  No. 293, (Exhibit UKR -71). It was in force until 31  December 
2018. Both parties advised in the interim review stage that Decree No. 560 has since been further extended 
until 31 December 2019 by Decree No. 420, which was adopted by the President of the Russian Federation on 
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7.124.   It thus remains for the Panel to determine wh ether the measures taken by Russia with 
respect to Ukraine were  "taken in time of" the emergency in inte rnational relations. In this regard, 
the Panel notes that t he 2016 Belarus Transi t Requirements were i ntroduced by Russia on 
1 January  2016, the 2016 Transit Bans on Non -Zero Duty and Resolution No. 778 Goods were 
introduced on 1 July 2016 , and t he 2014  Belarus -Russia Borde r Bans on Transit of 
Resolution  No. 778 Goods were i ntroduced  by Russia in November 201 4. All of the measures were 
therefore introduced during the emergency in international relations and thus were "taken in time 
of" such emergency for purposes of subparagraph (iii).  
7.125.   On the basis of  the foregoing considerations, the Panel  conclude s that each of the mea sures 
at issue was "taken in time of " an emergency in international relations, within the meaning of 
subparagraph (iii) of Article XXI(b)  of the GATT 1994 . 
7.5.5.1   Conclusion  
7.126.   The Panel finds as follows:  
a. As of 2014, there has existed a situation in Russi a's relations with Ukraine that  constitutes 
an emergency in international relations within the meaning of subparagraph ( iii) of 
Article XXI(b) of the GATT 1994; and  
b. each of the measures at issue was taken in ti me of this emergency in international relations 
within the meaning of subparagraph (iii ) of Article XXI(b) of the GATT 1994.  
7.5.6   Whether the conditions  of the chapeau of Article XXI(b)  of the GATT 1994  are 
satisfied   
7.127.   The Panel recalls that, in paragraph 7.6 3 above, it posited that the adjectival clause "which 
it considers" in the chapeau of Article XXI(b) can be read to qualify only the "necessity" of the 
measures for the protection of the invoking Member's essential security interests, or also the 
determinati on of these "essential security interests", or finally and maximally, to qualify as well the 
determination of the sets of circumstances described in each of the subparagraphs of Article  XXI(b). 
In paragraph 7.10 1 above, the Panel rejected the last of these  possible interpretations.  
7.128.   The Panel has yet to address the remaining two possible interpretations of Article XXI(b). 
In other words, the question remains whether the adjectival clause "which it considers" in the 
chapeau of Article XXI(b) qualifies both t he determination of the invoking Member's essential 
security interests and the necessity  of the measures for the protection of those interests, or simply 
the determination of their necessity.  
7.129.   Russia argues that the adjectival clause means that both the determination of a 
Member's  essential security interests, and the determination of the necessity of the action taken for 
the protection of those interests, is  left entirely to the discretion o f the invoking Member. Several of 
the third parties also consider that Members have wide discretion to identify for themselves their 
essential security interests.206 Ukraine argues that, while all Members have the right to determine 
their own level of protectio n of essential security interests, that does not mean that a Member may 
unilaterally define what are essential security interests.207 According to Ukraine, it is for panels, 
rather than for Members, to interpret  the term "essential security interests" , which  forms part of the 
WTO covered agreements,  in accordance with customary rules of interpretation of 
public  international law.208 Consistent with its  interpretation of Article XXI(b)(iii),  Ukraine argues 
                                                
206 See Australia's third-party statement, paras. 9 -21; Brazil's third -party submission, paras. 4 -5 and 
8-9; third -party statement, paras. 21 -30; and response to Panel question No. 6; Canada's  third-party 
statement, paras. 6 -8; and response to Panel question No. 6, para. 8; C hina's  third-party statement, paras. 
18-19; and response to Panel question No. 6, para. 6; Japan's  third-party submission, paras. 32 -38; 
Singapore's  third-party statement, paras. 14 -19; United  States'  third-party statement, paras. 1, 11 -12, 34 -35; 
and resp onse to Panel question No. 6, para. 31 . 
207 Ukraine's opening statement at the first meeting of the Panel, paras. 141 -142. 
208 Ibid. para. 142. For similar views expressed by third parties, see European Union's third -party 
submission, paras. 49 -55 and 61 -63; a nd third -party statement, paras. 17 -23; Moldova's third -party 
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that Russia has failed to identify the essential securit y interests  that are threatened by the 2014 
emergency , and has not explained or demonstrated the connection between the measures and its 
essential security interests.209 While Russia also argued that , pursuant to Article XXI(a) of the 
GATT  1994, it cannot be  required  to further explain  its actions, beyond what it has decl ared in its 
first written submission and opening statement at the first meeting of the Panel, Ukraine considers 
that Russia cannot invoke Article XXI(a) of the GATT 1994 to evade its burden o f proof under Article 
XXI(b)(iii).210 
7.130.   "Essential security interests"211, which is evidently a narrower concept than 
"security  interests", may generally be understood to refer to those interests relating to the 
quintessential functions of the state, namely, the  protection of its territory and its population from 
external threats, and the maintenance of law and public order internally.  
7.131.   The specific interests that are considered directly relevant to the protection of a state from 
such external or internal threats  will depend on the particular situation and perceptions of the state 
in question, and can be expected to vary with changing circumstances.  For these reasons, it is left, 
in general, to every Member to define what it considers to be its essential security interests.  
7.132.   However, this does not mean that a Member is free to elevate any concern to that of an 
"essential  security  interest". Rather, the discretion of a Member to designate particular concerns as 
"essential security interests" is limited by its obligation to interpret and apply Article  XXI(b)(iii) of 
the GATT 1994 in good faith. The Panel recalls t hat the obligation of good faith is a general principle 
of law and a principle of general international law which underlies all treaties, as codified in 
Article  31(1) ("[a] treaty shall be interpreted in good faith …") and Article 26 ("[e]very treaty … mus t 
be performed [by the parties] in good faith") of the Vienna Convention.212 
7.133.   The obligation  of good faith requires that Members not use the exceptions in Article XXI as 
a means to circumvent their obligations under the GATT  1994. A glaring example of this wo uld be 
where a Member sought to release itself from the structure of "reciprocal and mutually advantageous 
arrangements" that constitutes the multilateral trading system213 simply by re -labelling trade 
interests that it had agreed to protect and promote with in the system, as "essential security 
interests", falling outside the reach of that system.  
                                                
submission, paras. 21, 27 -35 and 37 -41; third -party statement, paras. 10 -18 and 20 -22; and response to 
Panel question No. 6, paras. 18 and 20 -24. 
209 Ukraine's second written submission, para. 156 . Ukraine argues that it is not enough for Russia to 
assert that, as measures affecting transit rather than imports, there is no protectionist motive behind the 
measures. According to Ukraine, Russia must show that the issues are designed to protect Russia 's essential 
security interests. (Ukraine's second written submission, para. 158.)  
210 See Russia's opening statement at the first meeting of the Panel, paras. 43 -44; closing statement at 
the first meeting of the Panel, paras. 6, 10 -11 and 18; and opening st atement at the second meeting of the 
Panel, paras. 21 -23. See also Ukraine's second written submission, para. 161. Ukraine notes also that none of 
the measures which Russia seeks to justify under Article XXI(b)(iii) was notified to Members in accordance wi th 
paragraph  1 of the 1982 Decision. (Ibid.  para. 162.)  The 1982 Decision is discussed in para. 1.28 of the 
Appendix  to this Report.  
211 The term "essential security interests" appears in Article XXI of the GATT 1994, Article XIV bis of the 
GATS, Article 73 of the TRIPS Agreement, Article 10.8.3 of the TBT Agreement and Article III:1 of the Revised 
Agreement on Government Procurement. The t erm "national security" appears in Articles 2.2, 2.10, 5.4 and 
5.7 of the TBT  Agreement, and Article III:1 of the Revised Agreement on Government Procurement.  
212 See generally, Appellate Body Reports, US – Shrimp , para. 158; US – FSC, para. 166; 
US – Cotton  Yarn, para. 81;  and US – Hot-Rolled Steel , para. 101.  The Appellate Body has provided specific 
examples of the reflection of the principle of good faith, for example, in the chapeau to Article XX of the 
GATT  1994 (Appellate Body Report, US - Shrimp , para.  158); in the exercise of a Member's judgment in good 
faith under Articles 3.7 and 3.10 of the DSU (Appellate Body Reports, Peru – Agricultural Products , 
paras.  5.15-5.28; and US – FSC, para. 166);  in the concept of reasonableness in paragraph 2 of Annex I I of 
the Anti -Dumping  Agreement  (Appellate Body Report, US – Hot-Rolled Steel , para. 101); and in the general 
applicability of Article  26 of the Vienna Convention  to all WTO obligations (Appellate Body Report, 
US – Cotton  Yarn, para.  81). 
213 See the third r ecital of the preamble of the WTO Agreement and the second recital of the preamble 
of the GATT 1994.  
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7.134.   It is therefore incumbent on the invoking Member to articulate the essential security interests 
said to arise from the emergency in international relations suffici ently enough to demonstrate their 
veracity .  
7.135.   What qualifies as a sufficient level of articulation will depend on the emergency in 
international relations at issue. In particular, t he Panel considers that the less characteristic is the 
"emergency in interna tional relations" invoked by the Member, i.e. the further it is removed from 
armed conflict, or a situation of breakdown of law and public order (whether in the invoking Member 
or in its immediate surroundings), the less obvious are the defence or military  interests, or 
maintenance of law and public order interests, that can be generally expected to arise. In such cases, 
a Member would need to articulate its essential security interests with greater specificity than would 
be required when the emergency  in international relations  involve d, for example, armed conflict.  
7.136.   In the case at hand, the emergency  in international relations is very close to the "hard core" 
of war or armed conflict. While Russia has not explicitly articulated  the essential security intere sts 
that it considers the  measures at issue are necessary to protect, it did refer to certain characteristics 
of the 2014 emergency that concern the security of the Ukraine -Russia  border.214  
7.137.   Given the character of the 2014 emergency, as one  that has been re cognized by the 
UN General Assembly as involving  armed conflict , and which  affect s the security of the border with 
an adjacent country and exhibit s the other features identified by Russia, the essential security 
interests that thereby arise for Russia cannot be considered obscure or indeterminate.215 Despite its 
allusiveness, Russia's articulation of its essential security interests is minimally satisf actory in  these 
circumstances. Moreover, there is nothing in Russia's expression of those interests to suggest that 
Russia invokes Article XXI(b)(iii) simply as a means to circumvent its obligations under the 
GATT  1994.   
7.138.   The obligation of good faith, refer red to in paragraph s 7.132 and 7.13 3 above, applies  not 
only to the Member's definition of the essential security interests said to arise from the particular 
emergency in international relations, but also, and most importantly, to their connection with the  
measures at issue. Thus, as concerns the application of Article XXI(b)(iii), this obligation is 
crystallized in demanding that the measures at issue meet a minimum requirement of plausibility in 
relation to the proffered essential security interests, i.e.  that they are not implausible as measures 
protective of these interests.  
7.139.   The Panel must therefore review whether the measures are so remote from,  or unrelated  to, 
the 2014 emergency  that it is implausible that Russia implemented the measures for the prot ection 
of its essential security interests  arising out of the emergency .  
7.140.   The Panel recalls that the 2016 measures  (i.e. the 2016 Belarus Transit Requirements and 
the 2016 Transit Bans on Non -Zero Duty and Resolution No. 778 Goods): (a) restrict transit by road 
and rail  from Ukraine which is  destined for Kazakhstan or the Kyrgyz Republic from transiting directly 
across the Ukraine -Russia  border, requiring instead that such traffic detour through Belarus, and 
meet additional conditions relating to identification seals and registration cards at specific control 
points ; and (b) prohibit altogether such transit for certain  classes of goods  unless such transit is 
exceptionally authorized .216 
                                                
214 See para. 7.114 above.  
215 Russia also attempts to show that it genuinely has national security interests that it considers to be 
under threat.  For example , Russia emphasizes  that the 2016 measures were expressly enacted in accordance 
with a 2006 law authorizing the imposition of economic sanctions for national security reasons, 
Federal  Law No. 281 -FZ. This 2006 law, entitled "On the Special Economic Measure s" authoriz es the President 
of the Russian  Federation, acting on the basis of  proposals of the Security Council of the Russian Federation, to 
impose economic sanctions where circumstances require the "immediate reaction to an internationally wrongful 
act or to an unfriendly act of a foreign state …, when such act poses a threat to the interests and security of 
the Russian Federation ". (Federal Law No. 281 -FZ of the Russian Federation, "On the Special Economic 
Measures ", dated 30 December 2006, (Federal Law No. 281 -FZ), (Exhibit RUS -8).) The Panel considers that 
this demonstrates that the 2016 measures were adopted by Russia as a response to acts considered by the 
President  of the Russian  Federation  and the Security Council of the Russian Fed eration to pose a threat to 
Russia's interests and s ecurity . 
216 See paras. 7.1.a, 7.1.b, 7.16.c, 7.106.a and 7.106.b above.  
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7.141.   Ukraine characterizes the 2016 measures as retaliation by Russia  for Ukraine's decision to 
pursue economic integration with the European Union (through the EU -Ukraine  Association 
Agree ment which includes a DCFTA ) rather than with Russia thr ough the EaEU. Ukraine does not 
indicate whether it considers that decision, and  consequently the 2016 measures, to be related also 
to the emergency in international relations that had arisen in early 2014 .217 While t he evidence 
presented by Ukraine establishes that the 2016 measures were direct or immediate responses to 
the entry into force of the DCFTA between the Europ ean Union and Ukraine,  this is  only a partial 
explanation of the background to Russia's  adoption of the 2016 measures.  
7.142.   The Panel considers that there is a clear correlation between the change in government in 
Ukraine in  early 2014, the newly sworn -in government's decision to sign the 
EU-Ukraine  Association  Agreement in March 2014, the deterioration in Ukraine's relations with 
Russia (as evidenced by the March 2014 UN General Assembly resolution concerning the territorial  
integrity of Ukraine), and the sanctions  that have been  imposed against Russia by several 
countries.218 In other words, Ukraine's decision to pursue economic integration with the 
European  Union rather than with the EaEU cannot reasonably be seen as unrelated to the events 
that followed, and led to the emergency in international relations, during which Russia  took a number 
of actions in respect of Ukraine, including the adoption of the 2016 measures.  
7.143.   The 2014 measures (i.e. the 2014 Belarus -Russia Border Bans on Transit of Resolution No. 
778 Goods) operate to  ban transit of goods subject to Russian sanctions from transiting across 
Russia from its border with Belarus.219 These bans were imposed specifically to prevent 
circumve ntion of the import bans that Russia  had imposed under Resolution No. 778.220 
The Resolution No. 778 import bans were responses taken by Russ ia in August 2014 to the sanctions 
that other countries had imposed against it earlier in 2014 in response to the emergency in 
international relations.  
7.144.   Moreover, all of the measures at issue restrict the transit from Ukraine of goods across 
Russia, partic ularly across the Ukraine -Russia border, in circumstances in which there is an 
emergency in Russia's relations with Ukraine that affects the security of the Ukraine -Russia border 
and is recognized by the UN General Assembly  as involving armed conflict.  
7.145.   In these circumstances , the measures at issue cannot be regarded as being so remote from,  
or unrelated to , the 2014 emergency , that it is implausible that Russia implemented the measures 
for the protection of its essential security interests  arising out of t hat emergency . This conclusion is 
not undermined by evidence on the record  that the general instability of the Ukraine -Russia border 
did not prevent some bilateral trade from taking place along parts of the border.221  
7.146.   This being so, it is for Russia to dete rmine the "necessity" of the measures for the protection 
of its essential security interests.  This conclusion follows by logical necessity if the adjectival clause 
"which it considers" is to be given legal effect.222  
7.147.   The Panel has been referred to EC – Bananas III (Ecuador) (Article 22.6 – EC) in which the 
arbitrators interpreted the phrase "if that party considers" in Articles 22.3(b) and 22.3(c) of the DSU 
as providing a margin of appreciation to the party which was nevertheless subject to review by th e 
arbitrators.223 The arbitrator's decision regarding the scope of review under Article 22.3 of the DSU 
was based on the fact that the discretion accorded to the complaining party under the relevant 
subparagraphs of that provision was subject to the obligati on in the introductory words to 
Article  22.3 of the DSU, which provides that "[i]n considering what concessions or other obligations 
                                                
217 Ukraine's first written submission, para s. 24 and 26-31. 
218 See paras. 7.7 -7.12 above.  
219 For a description of the 2014 measures, see para. 7.106.c. above and paras. 7.326 -7.327 below.  
220 For an explanation of the relationship between the sanctions imposed against Russia and the 
Resolution  No. 778 import bans, see paras.  7.9-7.12 and 7.16.b and fns 15, 16 and 32 above . 
221 See, e.g. Ukraine's opening statement at the second meeting of the Panel, para. 36; and response to 
Panel question No. 4 after the second meeting of the Panel , para. 27. 
222 This is also confirmed by the negotiating history of Art icle XXI. (See para. 7.92 above.)   
223 Decision by the Arbitrator, EC – Bananas III (Ecuador) (Article 22.6 – EC). See Ukraine's opening 
statement at the first meeting of the Panel, para. 133; and second written submission, para. 168; 
European  Union's  third-party submission, paras. 62 -64; and third -party statement, paras. 21 -22; and 
United  States'  third-party statement, para. 16. 
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to suspend, the complaining party shall apply the foll owing principles and procedures ".224 There is 
no equivalent obligation anywhere in the text of Article XXI that expressly conditions the discretion 
accorded to an invoking Member under the chapeau of Article XXI(b).    
7.5.6.1   Conclusion  
7.148.   The Panel finds that Russia has satisfied the conditions of the chapeau of Article  XXI(b) of 
the GATT 1994.   
7.5.7   Overall conclusion  
7.149.   Accordingly, the Panel finds that Russia has met the requirements for invoking 
Article  XXI(b)(iii) of the GATT 1994 in relation to the measures at issue, and therefore the measures 
are covered by  Article XXI(b)(iii) of the GA TT 1994.   
7.6  Ukraine's claims  of WTO -inconsistency of the measures at issue  
7.6.1   Introduction  
7.150.   In this Section, the Panel addresses Ukraine's claims of inconsistency with Articles V and X 
of the GATT 1994 and commitments in Russia's  Working Party Report, as incorpo rated into its 
Accession Protocol by reference.  
7.151.   Russia does not present rebuttal arguments  or evidence regarding Ukraine's claims , as it 
considers that the measures at issue are "consistent with the provisions of the WTO Agreement, 
including  the GATT and the Accession Protocol" on the basis of its invocation of Article XXI(b)(iii) of 
the GATT 1994.225  
7.152.   The Panel  recall s the statement of the Appellate Body  in US – Wool Shirts and Blouses  that 
nothing in the DSU requires panels to  consider or decid e issues that are not "absolutely necessary  
to dispose of the particular dispute " between the parties .226 Indeed, the Appellate Body cautioned 
that to do so would "not be consistent with the aim of the WTO dispute settlement system" to secure 
a "positive solution to a dispute " under Article 3.7 of the DSU.227  
7.153.   Having found that the measures were taken in time of an "emergency in international 
relations" (a nd meet the other conditions of Article XXI(b)), the Panel does not consider it necessary 
to additionally examine their WTO -consistency in a different factual context and on a different legal 
basis, i.e. as if the measures  at issue  had not been taken in ti me of an "emergency in international 
relations ".  
7.154.   However, the Panel is mindful that, should its findings on Russia's invocation of 
Article  XXI(b)(iii) be reversed in the event of an appeal, it may be necessary for the Appellate Body 
to complete the analysis. Accordingly, in Section 7.6.2 , the Panel proceeds to analyse those aspects  
of Ukraine's  claims which, were it not for the fact that the measures were taken in time of  an 
"emergenc y in international relations " (and met the other conditions of Article XXI(b)), would enable 
the Appellate Body to complete the legal analysis.228  
7.155.   Additionally, Russia has invoked Article XXI(b)(iii) of the GATT 1994 in relation to all 
contested provisions of the WTO Agreement, including commitments in its Accession Protocol . 
Accordingly , in Section 7.6.4 , the Panel addresses whether Article XXI(b)(i ii) may be invoked by 
Russia in relation to commitments in its Accession Protocol .229 
                                                
224 See Decision by the Arbitrator, EC – Bananas III (Ecuador) (Article 22.6 – EC), para. 52.  
225 Russia's first written submission, paras. 9 and 76. See ibid. paras. 33, 37, 48 and 74.  
226 Appellate Body Report, US – Wool Shirts and Blouses , p. 19 , DSR 1996:I, 323, p. 339.  
227 Ibid. 
228 See, e.g. Appellate Body Reports, US – Shrimp , para. 124; and EC – Asbestos, para. 78.  
229 In this Section, when referring to Ukraine's claims of inconsistency with particular commitments in 
Russia's Accession Protocol, the Panel will, for ease of reference, refer to such claims according to the 
paragraph of Russia's Working P arty Report which sets forth the commitment. Paragraph 2 of Part I of 
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7.6.2   Article V:2 o f the GATT  1994 
7.6.2.1   Article V:2, first sentence  
7.6.2.1.1   Main arguments of the parties  
7.156.   Ukraine  argues that the  2016 Belarus Transit Requirement s, the 2016 Transit Ban s on 
Non-Zero Duty and Resolution No. 778 Goods , and the 2014 Belarus -Russia Border Ban s on Transit 
of Resolution No. 778 Goods do not guarantee freedom of transit through the territory of Russia for 
traffic in transit coming from Ukraine and/or going to Kazakhstan or the Kyrgyz Republic, and 
therefore , that the measures are inconsistent with  the first sentence of Article V:2.  
7.157.   Ukraine argues that the measures  at issue  violate  the first sentence of Article  V:2 of the 
GATT  1994 by restricting freedom of  transit in an "absolute manner ".230 In Ukraine's view, where a 
Member  completely prohibits tra ffic in transit  from a neighbouring country from  transiting through 
its territory, such a measure will  "necessarily" be inconsistent with the first sentence of Article V:2.231 
Ukraine additionally contends that the 2016 Belarus Transit Requirement s and 2016 Transit Ban s on 
Non-Zero Duty and Resolution No. 778 Goods preclude the use of all routes across  the 
Ukraine -Russia border, routes that are "direct" and therefore necessarily qualify as "routes most 
convenient for international transit ".232 Ukraine considers that the following factors may be relevant 
to the determination of which routes are most convenient for international transit: ( a) the mode of 
transport ; (b) the length of the transit route ; (c) access to the transit route ; (d) any admin istrative 
formalities and charges associated with the route ; (e) the operator's right to choose a mode of 
transport ; (f) the cost of using a transit route; and ( g) the provenance, destination and 
characteristics of the goods.233 
7.158.   Ukraine also claims that the restriction on entry and exit through certain checkpoints along 
the Belarus -Russia border and the Russia -Kazakhstan border under the 2016 Belarus Transit 
Requirement s is inconsistent with the first sentence of Article V:2 . Ukraine argues that the restricti on 
on entry and exit removes the "freedom to choose the most convenient route ".234 Ukraine also 
considers  that the additional conditions related to identification seals and registration card s that 
form part of the 2016 Belarus Transit Requirement s "impose an  additional burden" on traffic in 
transit  and thereby do not guarantee freedom of transit  as required by the first sentence of 
Article  V:2.235  
7.159.   Ukraine similarly considers  that the authorization requirement  under the derogation 
procedure of the 2016 Transit Bans on Non -Zero Duty and Resolution No. 778 Goods does not 
guarantee freedom of transit  as required by the first sentence of Article  V:2.236 Ukraine considers 
that transit of  the non-zero duty goods and Resolution No. 778 goods "is as good as prohibited" due 
to the burdensome nature of this requirement.237 Ukraine also argues that the restriction on entry 
and exit through certain checkpoints along the Estonia -Russia, Finland -Russia  and Latvia -Russia 
borders under the 2014 Belarus -Russia Border Ban s on Transit of Resolution No. 778 Goods is 
inconsistent with the first sentence of Article  V:2 because it make s "certain most convenient routes 
unavailable for traffic in transit ".238  
7.160.   Finally, the Panel notes Ukraine's interpretive argument , developed at the first meeting of 
the Panel,  that "where a measure is applied to goods transiting via the most convenient routes of 
                                                
Russia's  Accession Protocol incorporates by reference the paragraphs of Russia's Working Party Report that are 
listed in paragraph 1450 of that Report, including paragraphs 1161, 1426, 1 427 and 1428.  
230 Ukraine's first written  submission, para. 236.  
231 Ibid. paras. 237 and 240 . 
232 Ibid. paras. 237-238; and Ukraine's opening statement at the first meeting of the Panel, para. 77.  
Ukraine  recalls Canada's statement that what constitutes the mos t convenient route(s) "can … only be 
determined having regard to all of the circumstances relevant to the traffic in transit, including, for example, 
the 'conditions of the traffic'". ( Ukraine's opening statement at the first meeting of the Panel, para. 78.) 
233 Ibid. 
234 Ukraine's first written submission, para. 249.  
235 Ibid. para. 252.  
236 Ibid. paras. 253-255. 
237 Ibid. para. 254.  
238 Ibid. para. 246. 
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passage  and is found to violate other parts of Article V of the GATT 199 4, including the second 
sentence of Article V:2,  then such a measure is also inconsistent with the obligation of a Member to 
guarantee the freedom of transit via the most convenient routes " pursuant to  the first sentence of 
Article  V:2.239 Ukraine has noneth eless advanced several  independent arguments alleging 
inconsistency with  the first sentence of Article V:2.  
7.161.   As previously noted240, Russia  does not present any arguments in response to Ukraine's 
specific claims of inconsistency with the first sentence of Article V:2.  
7.6.2.1.2   Main arguments of third parties  
7.162.   Brazil  disagrees with Ukraine that a finding of inconsistency  with the first sentence of 
Article  V:2 will necessarily follow from a finding of inconsistency with any other paragraph  of Article  V 
of the GATT 1994 .241 For example, Brazil suggests that inconsistency with the obligation in 
Article  V:4 to ensure that "[a]ll charges and regulations … shall be reasonable" will not necessarily 
entail inconsistency with the first sentence of Article  V:2.242 Brazil  also does not believe that the 
imposition of certain procedural controls or restrictions on traffic in transit will automatically result 
in inconsistency with Article V:2.243 
7.163.   Canada  agrees with Ukraine that a finding of inconsistency with the first sentence  of 
Article  V:2 will necessarily follow from a finding of inconsistency with any other paragraph of 
Article  V, as these other paragraphs  "more precisely define the scope and limits of the right, and 
therefore the corresponding obligations embodied in that freedom ".244 Canada submits  that 
Article  V:2 does not prevent Members from imposing certain restrictions and burdens on traffic in 
transit, and does not equate to an unqualified right of free passage.245 Canada also considers that it 
is at least "conceivable" that a transit route that involves entry and transit via the territory of a third 
country could nevertheless amount to a route that is the "most convenient" route .246 
7.164.   The European Union  disagrees with Ukraine that a finding of inconsistency with the first 
sentence of Article V:2 will necessarily follow from a finding of inconsistency with any other 
paragraph  of Article V, and points to disparities in scope between the first sentence of Article V:2 
and other paragraphs  of Article V.247 The E uropean Union  also considers that the Panel need not, 
and should not, decide this question in the abstract f or the purpose of resolving this dispute.248 The 
European Union  considers that the following factors may be releva nt to the determination of which 
routes are "most convenient for inte rnational transit ": geography;  the mode of transport (by road, 
rail, water, air, or pipelines);  the specificity of the different typ es of goods that are in transit;  the 
total number of tr ansit routes;  their varying convenience for international transit from the 
perspective o f a reasonable trader;  and criteria such as distance, time, safety, as well as road and 
infrastructure quality.249 The European Union also states that the first  sentence of Article V:2 not 
only requires the availability of the most convenient routes but also the absence of restrictions for 
using these routes.250 Finally, the European Union considers it to be "hardly con ceivable " that an 
indirect route requiring a detour through Belarus for Ukrainian carriers destined for Kazakhstan and 
the Kyrgyz Republic could qualify as a route "most convenient for international transit ".251 
                                                
239 Ukraine's second written submission, para. 32.  See also Ukraine's opening statement at the first 
meeting of the Panel, para. 72; and first written submission, para. 191.  
240 See paras. 7.3 and 7.22 -7.23 above.  
241 Brazil's response to Panel question No. 8 , p. 5. 
242 Ibid. 
243 Brazil's third -party submission, paras. 13 -14. 
244 Canada's third -party submission , para s. 10 and  17; and response to Panel question No. 8, para. 10.  
245 Canada's third -party submission , para. 21.  
246 Canada's third -party statement, para. 12. Canada additionally stated that a determination of which 
route constitutes the "most convenient" route should have  regard to all of the circumstances, such as the 
means of transit, the products in transit, differentials in the distances using different routes, any resulting 
differentials in cost and time, and any other "conditions of traffic". (Ibid. para. 11 (referri ng to 
Japan's  third-party submission, para. 12).)  
247 European Union's  response to Panel question No. 8 , paras. 25 -28. 
248 Ibid. para. 29.  
249 European Union's third -party statement, paras. 31-38. 
250 Ibid. para. 37.  
251 Ibid. para. 38.  
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7.165.   Japan  disagrees  with Ukraine  that a finding of  inconsistency with the first sentence of 
Article  V:2 will necessarily follow from a finding of inconsistency with any other paragraph  of 
Article  V.252 However, Japan agrees with Ukraine that a measure that blocks all access into the 
territory of a Member wo uld likely be inconsistent with Article V:2 unless the measure could be 
justified on some basis other than Article  V of the GATT 1994.253 Japan clarifies, however, that the 
first sentence of Article V:2 does not require unqualified, unrestricted access, but only guarantees 
freedom of transit via th ose routes most convenient for international transit.254 Japan also proposes 
that once a complaining Member makes a prima facie case that there are other routes that are more 
convenient than those designated by the re spondent Member , the burden of proof should shift to 
the respondent Member to explain why it considers the designated  routes "most convenient " for 
international transit .255 Japan submits  that whether a given route is "most convenient" must be 
determined having regard to objective factors such as "the means of transit, available routes, 
distances or costs ".256 
7.6.2.1.3   Analysis  
7.166.   The first sentence of Article V:2 of the GATT 1994 provides that:  
There s hall be freedom of transit through the territory of each [Member], via the routes 
most convenient for international transit, for traffic in transit to or from the territory of 
other [Members].  
7.167.   Ukraine advance s several arguments in support of its claims of inconsistency with the 
first sentence of Article V:2  of the GATT 1994 .257 The Panel will only address those arguments 
necessary  to enable the Appellate Body to complete the analysis .258 The Panel first examine s 
Ukraine's  argument that "where a WTO Member prohi bits traffic in transit from the territory of 
another country with which it shares a border, such a measure necessarily does not guarantee 
freedom of transit" as required by the first sentence of Article V:2.259  
7.168.   The Panel notes that the first sentence of Ar ticle V:2  creates an obligation for each Member 
to guarantee freedom of transit "through the territory of each [Member] … for traffic in transit to or 
from the territory of other [Members] ".260 The use of the conjunction "or" logically creates two 
separate o bligations under the first sentence of Article V:2. Namely , each Member is required to 
                                                
252 Japan's response to Panel question No. 8, para. 17. 
253 Japan's third -party submission, para. 4. 
254 Ibid. para. 5 . 
255 Ibid. para. 9 . 
256 Ibid. para. 12. 
257 Ukraine advances  the following alternative arguments:   
(a) inconsistency with any other paragraph of Articl e V of the GATT 1994 will necessarily result in 
inconsistency with Article V:2 (Ukraine's first written submission, paras. 198 and 224);  
(b) the 2016 Belarus Transit Requirements and the 2016 Transit Bans on Non -Zero Duty and 
Resolution  No. 778 Goods precl ude the use of the "direct" and therefore "most convenient" routes 
(Ukraine's  first written submission, paras. 230, 232 and 236 -238);  
(c) the cumulative effect of the 2016 Transit Bans on Non -Zero Duty and Resolution No. 778 Goods and 
the 2014 Belarus -Russia Border Bans on Transit of Resolution No. 778 Goods is to block all transit over the 
Belarus -Russia border (Ukraine's first written submission, para. 238);  
(d) the 2016 Transit Bans on Non -Zero Duty and Resolution No. 778 Goods are, in effect, bans on all 
traffic in transit because the scope of the bans and the government authorization requirement are so 
burdensome as to render such t ransit near impossible (Ukraine's first written submission, paras. 253 -255);  
(e) the requirement to enter via certain checkpoints under each measure makes certain "most 
convenient routes" unavailable for traffic in transit (Ukraine's first written submiss ion, paras. 246 and 249);  
(f) the additional conditions related to identification seals and registration cards  attached to the 2016 
Belarus Transit Requirements impose an additional "burden" on traffic in transit and thereby do not guarantee 
freedom of transit (Ukraine's  first written submission, paras. 251 -252); and  
(g) the authorization requirement attached to the 2016 Transit Bans on Non -Zero Duty and Resolution 
No. 778 Goods does not guarantee freedom of transit. (Ukraine's first written submission, para. 254.)  
258 The Panel recalls that a panel has the "discretion to address only those arguments it deems 
necess ary to resolve a particular claim". (Appellate Body Report, EC – Poultry , para. 135. (emphasis original) 
See also Appellate Body Reports, Dominican Republic – Import and Sale of Cigarettes , paras. 124 -125; and 
US – Anti-Dumping Measures on Oil Country Tubu lar Goods , paras. 134 -135.)  
259 Ukraine's first written  submission, para. 237 .  
260 Emphasis added.  
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guarantee freedom of transit through its own territory for traffic in transit to the territory of any 
other Member , or from the territory of  any other Member.  
7.169.   The immediate context provided by the other provisions of Article V also informs the 
interpretation of the first sentence of Article V:2. The Panel recalls that  Article V:1 defines the term 
"traffic in transit" as any "goods  … [whose] pa ssage across such territory  … is only a portion of a 
complete journey beginning and terminating beyond the frontier of the [Member] across whose 
territory the traffic passes ". This informs the scope of Article V:2 by suggesting that each Member 
incurs obli gations in relation to "traffic in transit" only during the portion of the journey wh en such 
traffic passes through that Member's territory.  
7.170.   Similar to Article V:2, Article s V:3, V:4 and V:5 also employ the terms "traffic in transit" and 
the terms "to" or  "from" in relation to the territory of other Members.261 However, Article V:6 
distinctly creates an obligation to a ccord to "products which have been in transit" treatment no less 
favourable than  that which would have been accorded had the products  been tra nsported "from their 
place of origin to their destination ". The difference in terminology between Article V:6 and the other 
paragraphs  of Article V  suggests that the terms "from" and "to" as used in Articles V:2 through V:5 
have a distinct meaning  from the  terms "from [the] place of origin" and "to [the  place of ] destination" 
as used in Article V:6.  This is also supported by the  text of the second sentence of Article V:2, which 
draws an explicit distinction between places of "origin ", "departure ", "entry", "exit" and "destination ".  
7.171.   The text and context of Article V:2 thus suggest that the phrases "from the territory" and 
"to … the territory"  in the first sentence of Article V:2 should be construed as referring to the place 
of entry and place of exit of the traffic in transit , and not the  place of origin  or destination . 
7.172.   Accordingly, under the first sentence of Article V:2:  
a. Each Member is requi red to guarantee freedom of transit through its territory for any traffic 
in transit entering from  any other Member, and  
b. Each Member is required to guarantee freedom of transit through its territory for traffic in 
transit to exit to any other Member.  
7.173.   To establish inconsistency with the first sentence of Article V:2, i t will consequently be 
sufficient to demonstrate either that a Member has precluded transit through its territory for traffic 
in transit entering  its territory from any other Member, or  exiting its territory to any other Member , 
via the routes most convenient for international transit . 
7.174.   As a result, where a measure  prohibits traffic in transit from another Member from entering 
at all point s along a shared land border, the measure will necessari ly be inconsistent with the 
first sentence of Article V:2.  
7.175.   The 2016 Belarus Transit Requirements  mandate  that all international cargo transit by road 
or rail from Ukraine  which is destined for Kazakhstan or the Kyrgyz  Republic shall be carried out 
exclusively from Belarus and comply with a number of additional conditions related to identification 
                                                
261 See Article V:3 ("traffic coming from or going to the territory" of other Members), Article V:4 ("traffic 
in transit to or from the territories" of other Mem bers) and Article V:5 ("traffic in transit to or from the 
territory" of other Members) of the GATT 1994.  
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seals and registration cards  at specific control points on the Belarus -Russia border  and the 
Russia -Kazakhstan border .262  
7.176.   The 2016 Transit Bans on Non -Zero Duty and Resolution No. 778 Goods  ban road and rail 
transit departing from Ukraine and destined for Kazakhstan or the Kyrgyz Republic of : (a) goods 
that are subject to non -zero import duties according to the Common Customs Tariff of the EaEU; 
and (b)  goods  that fall within the scope of the import bans imposed by Resolution No. 7 78 of the 
Government of the Russian Federation , unless such transit is requested by Kazakh or Kyrgyz 
authorities and authorized by Russian authorities , in which case such transit is subject to the 2016 
Belarus Transit Requirements .263  
7.177.   The 2014 Belarus -Russia Border Bans on Transit of Resolution No. 778 Goods  ban the transit 
of all goods subject to veterinary and phytosanitary surveillance and that fall within the scope of the 
import ba ns imposed by Resolution No. 7 78 through  Russia from checkpoints in Belarus , and instead 
require that such veterinary goods  destined for Kazakhstan or third countries  enter Russia through 
designated checkpoints along the external border of the EaEU and  be subject to clearance by the 
appropriate Kazakh or Russian authorities , and that such plant goods destined for Kazakhstan or 
third countries enter Russia  exclusively through the same checkpoints .264  
7.178.   For reasons explained in Section 7.7, the only aspect o f the 2014 Belarus -Russia Border 
Bans on Transit of Resolution No. 778 Goods within the Panel's  terms of reference is the  application 
of the bans to transit from Ukraine.265 The Panel recalls that all transit departing from Ukraine and 
destined for Kazakhsta n and the Kyrgyz Republic has, since 2016, been subject to the 2016 Belarus 
Transit Requirements. Nevertheless, the 2014  Belarus -Russia Border Bans on Transit of Resolution 
No. 778 Goods would still, according to the terms of the instruments implementing t he measure, 
apply to transit  from Ukraine and destined for places other than Kazakhstan and the Kyrgyz Republic.  
7.179.   Applying the aforementioned def inition of "traffic in transit"  as outlined in Article V:1266, the 
goods covered by the 2016 Belarus Transit Requirements, the 2016 Transit Bans on Non -Zero Duty 
and Resolution No. 778 Goods , and the 2014 Belarus -Russia Border Bans on Transit of 
Resolution  No. 778 Goods qualify as "traffic in transit" for the purposes of Article V:2  of the 
GATT 1994.  
7.180.   Addressing next whether the measures prohibit  traffic in transit from another Member from 
entering at all point s along a shared land border, t he 2016 Belarus Transit Requirements , by 
                                                
262 See para. 7.357.a below. For additional information regarding these measures, see 
paras.  7.265 -7.267 below. The primary legal instruments implementin g these measures are Decree of the 
President of the Russian Federation No. 1, "On measures to ensure economic security and national interests of 
the Russian  Federation in international cargo transit from the territory of Ukraine to the territory of the 
Republic of Kazakhstan through the territory of the Russian Federation", dated 1 January 2016, (Decree No. 1), 
(Exhibits  UKR-1, RUS -1) as amended by Decree of the President of the Russian Federation No. 319, "On 
amendments to the Decree of the President of th e Russian Federation No. 1 of 1 January 2016 'On measures to 
ensure the economic security and national interests of the Russian Federation in international cargo transit 
from the territory of Ukraine to the territory of the Republic of Kazakhstan through t he territory of the Russian 
Federation'", dated 1 July 2016,  (Decree No. 319), (Exhibits UKR -2, RUS -2). Section 1(a) of Decree No. 1, as 
amended by Decree No. 319, applies to road and rail cargo transportation "from the territory of Ukraine to the 
territor y of the Republic of Kazakhstan or the Kyrgyz Republic through the territory of the Russian Federation". 
The Panel construes section 1(a) of Decree No. 1 as applying to both (a) transit ing cargo  via road or rail which 
begins its journe y in the territory of  Ukraine and is destined for Kazakhstan or the Kyrgyz Republic, and (b) 
transiting cargo via road or rail which begins its journey in another country and then transits through the 
territory of Ukraine, and is destined for Kazakhstan or the Kyrgyz  Republic.  
263 See para. 7.35 7.b below. For additional information regarding these measures, see 
paras.  7.266-7.267 and paras. 7.34 7-7.349 below. As the 2016 Transit Bans on Non -Zero Duty and 
Resolution  No. 778 Goods also apply to road and rail transit "from the terri tory of Ukraine to the territory of the 
Republic of Kazakhstan or the Kyrgyz Republic", the Panel similarly construes this measure as applying to 
both: (a) transit ing cargo  via road or rail which begins its journey in the territory of Ukraine and is destined for 
Kazakhstan o r the Kyrgyz Republic; and (b)  transit ing cargo  via road or rail which begins its journey in another 
country and then transits through the territory of U kraine, and is destined for Kazakhs tan or the 
Kyrgyz  Republic. (See  fn 262 above. ) 
264 See para. 7.357.c  below. For additional information regarding these measures, see paras. 7.269.a, 
7.326 -7.328 and  7.341 -7.354  below , as well as fns 385, 387, 456, 458 and 482 below . 
265 See paras. 7.354 -7.355 and 7.357.c below.  
266 See para. 7.169 above.  
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mandating that traffic in transit  may only enter Russia from Be larus, expressly prohibit traffic in 
transit from entering Russia from Ukraine . 
7.181.   The 2016 Transit Bans on Non -Zero Duty and Resolution No. 778 Goods  expressly  prohibit 
traffic in transit from entering Russia from Ukraine.  Additionally, even where transit is  exceptionally 
authorized under the derogation procedure , such traffic in transit is still required to enter Russia 
exclusively from  Belarus , and is therefore expressly prohibited from entering Russia from Ukraine.  
7.182.   The 2014 Belarus -Russia Border Bans on Tr ansit of Resolution No. 778 Goods , as applie d to 
traffic in transit from Ukraine of Resolution No. 778 goods , prohibit traffic in transit from entering  
Russia  from the territory of any Member other than those countries from which entry is exclusively 
permi tted, as listed in the measure.267 
7.6.2.1.4   Conclusions  
7.183.   The Panel  concludes  that, had the measures been taken in normal times, i.e. had they not 
been taken in time of an "emergency in international relations" (and met the other conditions of 
Article XXI(b)), Ukraine would have made a prima facie  case that the following measures were 
inconsistent with the first sentence of Article V:2 of the GATT 1994:  
a. the 2016 Belarus Transit Requirements , because these measures prohibit traffic in transit  
from entering Russia from Ukraine;  
b. the 2016 Transit Bans on Non -Zero Duty and Resolution No. 778 Goods , because these 
measures prohibit traffic in transit  from entering Russia from Ukraine; and  
c. the 2014 Belarus -Russia Border Bans on Transit of Resolution No. 778 Goods , because 
these measures  prohibit traffic in transit from Ukraine from entering Russia from any 
Member other than those countries from which entry is exclusively permitted, as listed in 
the measure.  
7.184.   The Panel  declines  to address Ukraine's additional  arguments that the measures are 
inconsistent with the first sentence of Article V:2.  
7.6.2.2   Article V:2, second sentence  
7.6.2.2.1   Main arguments of the parties  
7.185.   Ukraine  argues that the second sentence of Article V:2 prohibits Members  from making  any 
distinction whic h is based on the place of "origin, departure, entry, exit  or destination, or on any 
circumstances relating to the ownership of goods, of vessels or other means of transport ".268 
Ukraine  argues  that the 2016 Belarus Transit Requirement s violate the second se ntence of Article 
V:2 by impermissibly making distinctions based on the place of departure and entry 
(the Ukraine -Russia  border), the place of exit (the Russia -Kazakhstan border), and the place of 
destination (Kazakhstan and the Kyrgyz Republic) of the tra ffic in transit.269 Ukraine argues that the 
2016 Transit Ban s on Non -Zero Duty and Resolution No. 778 Goods violate the second sentence of 
Article V:2 by impermissibly making distinctions based on the place of origin (goods originating from 
countries listed in Resolution No. 778, as amended to include Ukraine, and g oods that are subject 
to an import duty other than zero under the Common Customs Code of the EaEU), the place of 
departure and entry (the Belarus -Russia border , under the derogation procedure ), the place of exit 
(the Russia -Kazakhstan border), and the plac e of destination (Kazakhstan and the Kyrgyz Republic) 
of the traffic in transit.270 Ukraine also considers  that the 2014 Belarus -Russia Border Ban s on Transit 
of Resolution No. 778 Goods violate the second sentence of Article V:2 because they make 
                                                
267 Under the Veterinary Instruction, (Exhibits UKR -21, RUS -10), entry for such goods is exclusively 
permitted at nine identified checkpoints on the border between Russia, on the  one hand, and Finland, Estonia, 
Latvia and Ukraine,  on the other hand. For more detail, see paras. 7.269.a and 7.341 -7.354 below and fns 456 
and 458 below.  
268 Ukraine's first written submission, para. 259. 
269 Ibid. paras. 281 -282. 
270 Ukraine's first written submission,  paras. 283 -284. 
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impermissi ble distinctions based on the place of origin ( goods originating from countries listed in 
Resolution No. 778, as amended to include Ukraine )271, the place of entry (a limited number of 
checkpoints on the external border of the EaEU) , and the place of destina tion (imposing different 
permit requirements depending on whether the goods are destined for Kazakhstan or third countries)  
of the traffic in transit .272  
7.186.   As previously noted273, Russia  does not present any arguments in response to 
Ukraine's  specific claims of  inconsistency with the second sentence of Article V:2.  
7.6.2.2.2   Main arguments of third parties  
7.187.   Canada  agrees with Ukraine that the second sentence of Article V:2 prohibits Members from 
making any distinction which is based on the place of origin, departure, entry , exit, destination and 
any circumstances relating to the ownership of goods, vessels , or other means of transport.274 
Canada additionally submits  that the closed list in the second sentence of Article V:2 suggests that 
any measures that discriminate based o n other  criteria should instea d be dealt with under 
Article  V:5.275 
7.188.   Japan  also agrees with Ukraine that the second sentence of Article V:2 prohibits  Members 
from making any distinction which is based on the place of origin, departure, entry, exit, destination 
and any circumstances relating to the ownership of goods, vessels or other means of transport.276 
Japan also proposes that the objective structure , design  and operation  of the measure, and not the 
subjective judgment of the Member imposing the me asure, should be examined to conclude whether 
any such distinctions  have been made.277 
7.6.2.2.3   Analysis  
7.189.   The second  sentence of Article V:2 provides that:  
No distinction shall be made which is based on the flag of vessels, the place of origin, 
departure, entry, exit or destination, or any circumstances relating to the ownership of 
goods, of vessels or of other means of transport.  
7.190.   The 2016 Belarus Transit Re quirements  mandate  that all international cargo transit by road 
or rail departing from Ukraine and destined for Kaz akhstan or the Kyrgyz  Republic  must enter  Russia 
exclusively from Belarus and comply with a number of additional conditions related to identi fication 
seals and registration cards  at specific control points on the Belarus -Russia border  and the 
Russia -Kazakhstan border .  
7.191.   The 2016 Belarus Transit Requirement s expressly  apply only to traffic in transit departing 
from Ukraine (thereby making distinction s based on the place of departure) which is destined for  
Kazakhstan or the Kyrgyz Republic (thereby making distinction s based on the place of destination) 
and require  that such traffic enter Russia only from Belarus (thereby making distinctions based on 
the place of entry). The additional conditions relat ed to identification seals and registration cards 
apply only to traffic in transit that is subject to the 2016 Belarus Transit Requirement s. These 
conditions also involve the same prohibited  distinctions.  
7.192.   The 2016 Transit Bans on Non -Zero Duty and Resolution No. 778 Goods  ban road and rail 
transit departing from Ukraine  and destined for Kazakhstan or the Kyrgyz Republic of : (a) goods 
that are subject to non -zero import duties according to the Comm on Customs Tariff of the EaEU; 
and (b)  goods that fall within the scope of the import bans imposed by Resolution No.  778, unless 
                                                
271 Ukraine's first written submission,  paras. 275 and 280 . 
272 Ibid. paras. 276-279; and response to Panel question  No. 12 after the first meeting of the Panel , 
para. 135.  
273 See paras. 7.3 and 7.22 -7.23 above.  
274 See Canada's third -party submission, para. 24.  
275 Ibid. para. 25.  
276 Japan's thir d-party submission, para s. 18-19. 
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such transit is requested by Kazakh and Kyrgyz authorities and authorized by Russian authorities , 
in which case such transit is  subject to the 2016 Belarus Transit Requirements .  
7.193.   The 2016 Transit Ban s on Non -Zero Duty and Resolution No. 778 Goods expressly apply  only 
to traffic in transit departing from Ukraine (thereby making distinction s based on  the place of 
departure) which is destined for Kazakhstan or the Kyrgyz Republic (thereby making distinctions 
based on the place of destination). The 2016 Transit Bans apply  to the transit of particular goods, 
namely, goods that are subject to customs duties o n their importation to the EaEU and goods that 
originate in countries that are listed in Resolution No. 778, as amended to include Ukraine (thereby 
making distinctions based on the place of origin). Additionally, even if traders exceptionally receive 
autho rization, such traffic in transit is still subject to the 2016 Belarus Transit Requirements and 
thus required to enter Russia exclusively from  Belarus (thereby making distinctions based on the 
place of entry).  
7.194.   The 2014 Belarus -Russia Border Bans on Transit  of Resolution No. 778 Goods  ban the transit 
of all goods subject to veterinary and phytosanitary surveillance and that fall within the scope of the 
import bans imposed by Resolution No. 7 78 through Russia from checkpoints in Belarus, and instead 
require t hat such veterinary goods destined for Kazakhstan or third countries enter Russia through 
designated checkpoints along the external border of the EaEU and  be subject to clearance by the 
appropriate Kazakh or Russian authorities , and  that such plant goods d estined for Kazakhstan or 
third countries enter Russia exclusively through the same checkpoints . The 2014 Belarus -Russia 
Border Ban s on Transit of Resolution No. 778 Goods  (to the extent that they fall within the Panel's 
terms of reference)  apply  to traffi c in transit from Ukraine and destined for places other than 
Kazakhstan and the Kyrgyz Republic.278  
7.195.   The 2014 Belarus -Russia Border Ban s on Transit of Resolution No. 778 Goods , as applie d to 
traffic in transit from Ukraine of Resolution No. 778 goods , require  such traffic in transit to enter 
Russia from certain countries on the external border of the EaEU (thereby making distinctions based 
on the place of entry).279 The measure applies to goods originat ing from  countr ies listed in 
Resolution  No. 778, as amended to include Ukraine (thereby making distinctions based on the place 
of origin). The additional conditions relating  to entry through designated checkpoints and clearance 
apply only to traffic in transit subject to  the 2014 Belarus -Russia Border Ban s on Transit of Resolution 
No. 778 Goods . These conditions also involve the same prohibited  distinctions.  
7.6.2.2.4   Conclusions  
7.196.   The Panel  concludes  that, had the measures been taken in normal times, i.e. had they not 
been taken in time of an "emergency in international relations" (and met the other conditions of 
Article XXI(b)), Ukraine would have made a prima facie  case that the following measures were 
inconsistent with the second sentence of Article V:2 of the GATT 1994:  
a. the 2016 Belarus Transit Requirements , because these measures make distinctions based 
on the place of departure (Ukraine) , the place of destination (Kazakhstan and the 
Kyrgyz  Republic) and the place of entry (Belarus, where entry is exclusively permitted ) of 
the tr affic in transit;  
b. the 2016 Transit Bans on Non -Zero Duty and Resolution No. 778 Goods , because these 
measures make distinctions based on the place of departure (Ukraine) , the place of  
destination (Kazakhstan and the Kyrgyz Republic), the place of origin ( countries listed in 
Resolution No. 7 78, as amended to include Ukraine) and the place of entry (Belarus, where 
entry is exclusively permitted ) of the traffic in transit; and  
c. the 2014 Belarus -Russia Border Bans on Transit of Resolution No. 778 Goods , because 
these measures make distinctions based on the place of entry ( certain countries  from 
which entry is exclusively permitted, as listed in that measure ) and the place of origin 
(countries  listed in Resolution No. 778, as amended to include Ukraine)  of the traffic in 
transit.  
                                                
278 See paras. 7.17 7-7.178 above. For more detail, see paras. 7.341 -7.353 below.  
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7.6.3   Remaining claims under the GATT 1994 and Russia's Accession Protocol  
7.6.3.1   Introduction  
7.197.   Having found that the measures were taken in time of an "emergency in international 
relations" (and meet the other conditions of Article XXI(b)), the  Panel has not considered it necessary 
to examine the WTO -consistency of the measures as if they had been taken in a different factual 
context or on a different legal basis.280 However, in the event of the Panel's findings on 
Article  XXI(b)(iii) being revers ed on appeal, the Panel has considered those aspects of 
Ukraine's  claims which would enable the Appellate Body to complete the legal analysis.  
7.198.   In particular, the Panel has examined whether, had the measures been taken in normal 
times, i.e. had they not be en taken in time of an "emergency in international relations" (and met 
the other conditions of Article XXI(b)), Ukraine would have made a prima facie  case that the  
measures  at issue  were inconsistent with the first and second sentence s of Article V:2 of th e 
GATT  1994. The Panel has outlined the key features of the measures  at issue , and concluded that 
the measure s would have been prima facie inconsistent with these provisions, for the reasons 
outlined in  Section  7.6.2. 
7.199.   The Panel has already concluded that, had the measures been taken in normal times, every 
aspect of the m would have been prima facie inconsistent with either the first or second sentence of 
Article V:2 of the GATT 1994, or both. Ukraine's claims under Articles V:3, V:4 and V:5 challenge 
the sam e aspects of the measures.281 The Panel  considers that addressing these claims would not 
add anything to the ability of the Appellate Body to complete the analysis, nor add anything to the 
ability of the DSB to make "sufficiently precise recommendations and rulings"282 in the event that 
the Appellate Body were to make findings of inconsistency with either the first  or second sentence 
of Article V:2 , or both .  
7.200.   In relation to Ukraine's remaining claims, the  Panel recalls the statement of the 
Appellate  Body in Argentina  – Import Measures that it  failed to see how a finding relating to " the 
publication of [a] WTO-inconsistent measure would contribute to securing a po sitive solution to this 
dispute ".283 Accordingly, where a measure is found to be WTO -inconsisten t, findings relating to the 
publication or administration of the same measure  are unlikely to be necessary or useful in resolving 
the matter.284 Ukraine's claims under Article s X:1, X:2 and X:3(a) of the GATT 1994 challenge the 
same measures, or constituent legal instruments implementing aspects of these measures. The 
Panel considers that addressing these claims would not add anything to the ability of the 
Appellate  Body to complete the analysis, nor add anything to the ability of the DSB to make 
"sufficientl y precise recommendations and rulings"285 in the event that the Appellate  Body were to 
make findings of inconsistency with the first or second sentence of Article  V:2, or both . These 
considerations are equally applicable to Ukraine's claims under paragraphs 1426, 1427 and 1428 of 
Russia's Working Party Report, which all relate to the publication or administration of the same 
contested measures.  
                                                
280 See paras. 7.153 -7.154 above.  
281 See summary of Ukraine's arguments below.  
282 Appellate Body Report, Australia – Salmon, para. 223  (quoted in Appellate Body Reports, 
US – Wheat Gluten , para. 180; and US – Lamb, para. 191). See also Appel late Body Report, 
Argentina  – Footwear (EC), para. 98.  
283 Appellate Body Report s, Argentina – Import Measures , para. 5.200. The panel i n 
Argentina  – Import  Measures elected to exercise judicial economy in respect of Japan's claims under Article X:1 
of the GATT 1994 in circumstances where it had already determined that the challenged  measures were 
inconsistent with Article s III:4 and XI:1 of the GATT 1994 , reasoning  that it did not consider additional findings 
of inconsistency in relation to  the same measure under  Article X:1 "necessary or useful in resolving the matter 
at issue ". (See ibid. para. 5.18 8.) The Appellate Body upheld the panel's exercise of judicial econom y and the 
panel's reasoning , noting that as Argentina would "have to modify or withdraw the TRRs measures to comply 
with the recommendations under Articles III:4 and XI:1, the TRRs measure —in its current form and with its 
current content —will cease to exis t". (Ibid. para. 5.200. )  
284 Since Argentina – Import Measures, several panels have exercised judicial economy over claims 
under Article X:3(a) where a measure has already been held to violate other substantive provisions of the 
GATT 1994. (See, e.g. Panel Reports, Peru – Agricultural Products, para. 7.501; and 
Russia  – Railway  Equipment, para. 7.939.)  
285 See fn 282 above.  
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7.201.   As a result, the Panel does not consider it necessary to address Ukraine's remaining claims  
under Articles V:3, V:4 , V:5, X:1, X:2 and X:3(a) of the GATT 1994 and paragraphs 1426, 1427 and 
1428 of Russia's Working Party Report . Accordingly, the Panel has only summarized the relevant 
arguments of the parties and third parties in the following Section  of the Report .286 
7.6.3.2   Article V:3  
7.6.3.2.1   Main arguments of the parties  
7.202.   Ukraine  argue s that the 2016 Belarus Transit Requirement s and  the 2016 Transit Ban s on 
Non-Zero Duty and Resolution No. 778 Goods impose "unnecessary delays or restrictions" on traffic 
in transit, and therefore , that the se measures are inconsistent with Article V:3.  
7.203.   In Ukraine's view, a measure will be inconsistent with Article V:3 whenever it subjects traffic 
in transit to any delays or restrictions which that are go beyond what is  necessary "to put traffic in 
transit under a transit procedure in order to ensure that the goods move through the territ ory (and 
eventually leave th e territory) ".287 Ukraine contends that , in examining whether such delays or 
restrictions are "unnecessary", the Panel should consider : (a) the trade  restrictiveness of the 
measure,  (b) the degree of contribution of the measure to  the achievement of its objective , and 
(c) whether less restrictive alternative measures are reasonably available.288 
7.204.   Ukraine consequently argues that the following aspects of the measures  at issue  subject 
traffic in transit to "unnecessary delays or restric tions" in the sense of Article V:3.289 First, Ukraine 
argues that the limitation to certain designated  checkpoints under the 2016 Belarus Transit 
Requirement s and the 2016 Transit Ban s on Non -Zero Duty and Resolution No. 778 Goods is 
unnecessary to ensure th at goods are put under an appropriate transit procedure, as this objective 
could be equally achieved at other existing control points .290 Second, Ukraine argues that the 
requirement of government authorization under the 2016 Transit Ban s on Non -Zero Duty and 
Resolution No. 778 Goods is an "unnecessary" restriction because it has no clear relationship to the 
objective of ensuring that goods undergo an appropriate transit procedure.291 Finally, Ukraine argues 
that the identification seals and registration card conditions attached to the 2016 Belarus Transit 
Requirement s constitute "unnecessary" restrictions and delays because such traffic in transit must 
already undergo the identification procedures required by the EaEU.292 
7.205.   As previously  noted293, Russia  does not present any arguments in response to Ukraine's 
specific claims of inconsistency with Article s V:3, V:4 and V:5  of the GATT 1994 . 
7.6.3.2.2   Main arguments of third parties  
7.206.   Brazil  proposes that whether delays or restrictions are "necessary " under Arti cle V:3 must 
be examined on a case -by-case basis, including assessing "the trade restrictiveness of the 
procedures, its degree of contribution to the public interest at stake and the risk of non -fulfilment ".294 
Brazil also considers that restrictions or dela ys can be "necessary" to achieve legitimate objectives 
that are not exclusively related to transit regulation , such as in "force majeure" circumstances .295 
                                                
286 The Panel has, however, addressed the relationship between paragraph 1161 of Russia's Working 
Party Report and Article V:2 of the GATT 1 994 in Section 7.6.4.2.2. Nonetheless, the relevant arguments of the 
parties and third parties in relation to this paragraph are summarized in the following section.  
287 Ukraine's first  written submission, para. 303. See also Ukraine's second written submiss ion, para. 46.  
288 Ukraine's first written submission, para. 319.  
289 Ukraine argues that each of the measures place "restrictions" on transit and cause "delays" related to 
re-routing. ( Ibid. paras. 342 -344.) 
290 Ibid. paras. 345 -349. 
291 Ibid. para. 350.  
292 Ibid. paras. 351-364. See also Ukraine's response to Panel question  No. 12 after the first meeting of 
the Panel , para. 135.  
293 See paras. 7.3 and 7.22 -7.23 above.  
294 Brazil's third -party submission, para s. 14-15. 
295 Brazil's third -party submissi on, para. 14; and response to Panel question No.  10. 
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7.207.   Canada  disagrees with Ukraine's interpretation of the scope of Article V:3 .296 Canada argues 
that the delays and restrictions covered under Article V:3 are those imposed as part of requiring 
"that traffic in transit be registered with [Members']  customs authorities", including "the formalities 
and documentation requirements that are part of  entering the traffic at the proper customs 
house ".297 
7.208.   The European Union  also disagrees with Ukraine's interpretation of the scope of Article  V:3. 
The European Union argues that the delays and restrictions covered under Article V:3 are those that 
specifical ly result from the application of customs laws and regulations.298  
7.6.3.3   Article V:4  
7.6.3.3.1   Main arguments of the parties  
7.209.   Ukraine's claims of inconsistency with Article V:4 are confined to one aspect of the 
2016 Transit Ban s on Non -Zero Duty and Resolution No. 778 Goods . Specifically, Ukraine argues 
that the authorization requirement under the derogation procedure of the  2016 Transit Ban s on 
Non-Zero Duty and Resolution No. 778 Goods  constitutes an "unreasonable regulation" imposed on 
traffic in the sense of Article V:4.299  
7.210.   In Ukraine's view, whether a  regulation is "unreasonable" should involve an analysis of : 
(a) the rationale or purpose of the measure , and ( b) whether the means used to achieve that 
rationale are "adequate and fair ".300 Ukraine consequently argues that : (a) it is unreasonable to 
make access for traffic in transit entirely dependent on the discretion of the government of the 
country of destination, ( b) it is unreasonable to implement  a measure that does not provide any 
information about what conditions ne ed to be satisfied in order to secure authorization, and 
(c) the measure goes beyond what is required to ensure that goods move through and eventually 
leave the territory of the transit Member .301 
7.6.3.4   Article V:5  
7.6.3.4.1   Main arguments of the parties  
7.211.   Ukraine  argue s that the 2016 Belarus Transit Requirement s, the 2016 Transit Ban s on 
Non-Zero Duty and Resolution No. 778 Goods , and the 2014 Belarus -Russia Border Ban s on Transit 
of Resolution No. 778 Goods accord less favourable treatment to traffic in transit from Ukraine 
compared  to third countries, and therefore , that the measures are inconsistent with Article V:5.  
7.212.   Ukraine proposes that , to establish inconsistency with  Article V:5, it must be shown that : 
(a) the measure is a "regulation" that is "related to or associated with" traffic in transit ; (b) there 
has been differential treatment accorded to traffic in transit from or to any Member as compared to 
third countries ; (c) there has been "less favourable treatment", or a detrimental impact on the 
conditions of competitio n, for traffic in transit from the contesting Member ; and (d) there is a 
"genuine relationship" between the measure at issue and the adverse impact on competitive 
opportunities .302  
7.213.   Applying the foregoing analysis, Ukraine argues that each of the measures is inconsistent 
with Article V:5. Ukraine argues that the 2016 Belarus Transit Requirement s and the 2016 Transit 
Bans on Non -Zero Duty and Resolution No. 778  Goods  accord differentia l treatment on the basis of 
whether the traffic in transit has come from Ukraine and is going to Kazakhstan and the 
Kyrgyz  Republic.303 Ukraine also argues that the 2016 Transit Ban s on Non -Zero Duty and Resolution 
No. 778 Goods and the 2014 Belarus -Russia B order Ban s on Transit of Resolution No. 778 Goods 
                                                
296 Canada's third -party submission, para s. 31-32. 
297 Ibid. paras. 33 and  36. (footnotes omitted)  
298 European Union 's response to Panel question No. 10 , para. 32.  
299 Ukraine's  first written submission , para s. 366 and 393 . 
300 Ibid. paras. 384-385. 
301 Ibid. paras. 400-404. 
302 See ibid . paras. 409 -431. 
303 Ukraine's  first written submission , paras. 444 and 448-449. 
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accord differential treatment on the basis of whether the traffic in transit has originated from a 
Resolution No. 7 78 country, as amended to include Ukraine, or is destined for Kazakhstan .304 
Ukraine  argues t hat this differential treatment alters the conditions of competition for traffic in transit 
from Ukraine as compared to third countries, and therefore accords "less favourable treatment" by : 
(a) creating delays and additional costs related to rerouting, ( b) imposing additional costs such as 
those related to identification and registration cards , and ( c) impeding access to the export market 
for which the goods are destined.305 
7.6.3.5   Article  X of the GATT 1994  
7.6.3.5.1   Main arguments of the parties  
7.214.   Ukraine's claims of inconsi stency with  Article X of the GATT 1994 are confined to certain 
instruments that implement aspects of the 2016 Belarus Transit Requirements  and the 2016 Transit 
Bans on Non-Zero Duty and Resolution No. 778 Goods . Ukraine argues that these measures fall 
within the scope of Article X:1 because they affect the transportation of goods, and fall within the 
scope of Article X:2 because they have "regard to" or are "connected with" importation or 
exportation.306 
7.215.   More specif ically, Ukraine claims that the following legal instruments implementing aspects 
of the measures above were not published promptly as required by Article X:1 of the GATT 1994:  
a. Public Joint -Stock Company " Russian Railways " Order No. 529r of 28 March 2016 
(PJSC Order)307 and the Public Joint -Stock Company " Russian Railways " Notice of 
17 May 2016 (PJSC Notice)308, both of which implement aspects of the 2016 Belarus 
Transit Requirement s and the 2016 Transit Ban s on Non -Zero Duty and Resolution No.  778 
Goods . Ukrain e argues that th ese legal instrument s were inadequately published for the 
purposes of Article X:1, as they were  only published on the website and print version of 
the business magazine  "RZD-Partner Documents",  to which only paying subscribers have 
access .309   
b. Decree No. 319310, which extended the geographical scope of the 2016 Belarus Transit 
Requirement s to traffic in transit from Ukraine destined for the Kyrgyz Republic, and 
imposed the 2016 Transit Ban s on Non -Zero Duty and Resolution No. 778 Goods . Ukraine  
argues that this legal  instrument  was not published promptly for the purposes of 
                                                
304 Ukraine's  first written submission , paras. 445-447 and 449.  
305 Ibid. paras. 451 and 453-454. The Panel also notes that Ukraine initially proposed that any 
inconsistency with the second sentence of Article V:2 would necessarily demonstrate "less favourable 
treatment" for the purposes of Article V:5; however, Ukraine la ter appears to have withdrawn this argument. 
(See Ukraine's second written submission, para. 61.)  
306 Ukraine's first written submission, paras. 521, 523 -524 and 564.  
307 Order of PJSC "Russian Railways"  No. 529, "On approval of the procedure for installing (removing) of 
the identification means (seals) operating on the basis of the technology GLONASS", dated 28 March 2016, 
(PJSC Order), (Exhibit UKR -7). The PJSC Order implements the requirements of the 2016 Belarus Transit 
Requirements (set forth in paragraph 1(b) of Decree No. 1) to affix identification seals on road and railway 
transport of traffic in transit from Ukraine destined for Kazakhstan (and the Kyrgyz Republic) on entry into 
Russia and to remove such seals on exit from Russia, as elabor ated by Resolution of the Government of the 
Russian Federation No. 276 , "On the procedure of exercising control over the international road and rail cargo 
transit from the territory of Ukraine to the territory of the Republic of Kazakhstan or the Kyrgyz Re public 
through the territory of the Russian Federation",  dated 6 April 2016, (Resolution No. 276), (Exhibits UKR -8, 
RUS-6) (as amended by Resolution of the Government of the Russian Federation  No. 732 , "On amendments to 
some acts of the Government of the R ussian Federation", dated 1 August 2016, (Resolution No. 732), 
(Exhibit  UKR-4)). (Ukraine's first written submission, para. 107.) See also Decree No. 1, (Exhibits UKR -1, RUS -
1). 
308 This notice sets forth the fee for the placement and removal of the GLONASS identification seals, as 
required by the instruments listed in fn 307 above. (Ukraine's first written submission, para. 105.)  
309 See ibid.  paras. 530-539. 
310 Decree No. 319, (Exhibits UKR -2, RUS -2). 
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Article  X:1, as this instrument was brought into effect on 1 January 2016, while it was 
published only on 3 July 2016.311 
7.216.   Ukraine claims that the following legal instruments were enforced prior to their official 
publication, contrary to Article X:2 of the GATT 1994:  
a. The PJSC Order312, because this legal  instrument  was inadequately published for the 
purposes of Article X:2, as it was  only published on the website and print version of the 
business magazine  "RZD-Partner Documents",  to which only paying subscribers have 
access .313 
b. Decree No. 319314, because this instrument was enforced on  1 January 2016, while it was 
officially publish ed only on 3 J uly 2016.315 
c. Decree No. 643316, which amend ed Decree No. 1317, so as to extend the duration of the 
2016 Belarus Transit Requirement s and the 2016 Transit Ban s on Non -Zero Duty and 
Resolution No. 778 Goods , because this instrument was enforced on 30  December  2017, 
while it was only officially published on 4 January 2018.318 
7.217.   Ukraine claims that the following legal instruments are administered in an unreasonable 
manner, contrary to Article X:3(a) of the GATT 1994:  
a. Decree No. 1,  as amended by Decree No. 3 19 and Decree No. 643 , which imposes  the 
2016 Belarus Transit Requirement s and the 2016 Transit Bans on Non -Zero Duty and 
Resolution No. 778 Goods , because Russia has administered these instrument s at the 
Belarus -Russia  border without pr oviding reasoned explanations to traders .319 
b. Decree No. 319320, because th e derogation procedure under this instrument contains no 
criteria governing the exercise of Russia's discretion to permit derogations from the bans, 
thereby permitting the possibility of arbitra ry administration.321 
7.218.   Russia  argues that the scope of Article X is limited to "issues of importation, exportation, 
internal sale and transportation ", and does not intersect with " the scope of Article V  of the GATT  
which is limited to issues of transit ".322 
                                                
311 See Ukraine's first written submission . paras. 541 -543. See also  Ukraine's response to 
Panel  question  No. 12 after the first meeting of the Panel , para. 135.  
312 PJSC Order, (Exhibit UKR -7). 
313 Ukraine's first written submission,  para. 581. 
314 Decree No. 319, (Exhibits UKR -2, RUS -2). 
315 Ukraine's first written submis sion, paras. 583-584. 
316 Decree of the President of the Russian Federation No. 643, "On amendments to the Decree of the 
President of the Russian Federation No. 1 of 1 January 2016 'On measures to ensure economic security and 
national interests of the Russian Federation in internat ional cargo transit from the territory of Ukraine to the 
territory of the Republic of Kazakhstan through the territory of the Russian Federation", dated 
30 December  2017, (Decree No. 643), (Exhibits UKR -98, RUS -13). Decree No. 643 extended the duration of 
Decree No. 1, and therefore the duration of the 2016 Belarus Transit Requirements and the 2016 Transit Ban s 
on Non -Zero Duty and Resolution No. 778 Goods . 
317 Decree No. 1, (Exhibits UKR -1, RUS -1). 
318 Ukraine's opening statement at the first meeting of the Pa nel, paras. 61 -63; and second written 
submission, para. 64. See also  Ukraine's response to Panel question  No. 12 after the first meeting of the Panel , 
para. 135.  
319 Ukraine's first written submission, paras. 643 -647. 
320 Decree No. 319, (Exhibits UKR -2, RUS -2). 
321 Ukraine's first written submission, paras. 648 -650 and 653 -654. See also Ukraine's response to Panel 
question No. 12 after the first meeting of the Panel, para. 135.  
322 Russia's response to Panel question No. 11 after the first meeting of the Panel, p.  4. 
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7.6.3.5.2   Main arguments of third parties  
7.219.   Brazil  argues that measures within the scope of Article V will typically qualify as 
"requirement s, restriction s or prohibitions  on imports or exports" within the sense of Article X:1.323  
7.220.   Canada  argues that the term "affecting th eir … transportation" in Article X:1 should be 
construed as referring to measures affecting the transportation of "products", as included in the 
phrase "classification or the valuation of products for customs purposes", not "imports or exports" 
as included  in the preceding phrase "requirements, restrictions or prohibitions on imports or 
exports ".324 Canada argues that this broader construction of Article X:1 is supported by the 
object  and purpose of Article X, which is to promote transparency in relation to m easures of general 
application relating to trade.325 
7.221.   The European Union  also argues that the term "affecting their … transportation" in Article  X:1 
should be construed as referring to measures affecting the transportation of "products", not "imports 
or expor ts".326 The EU agrees that this broader construction of Article X:1 is supported by the object 
and purpose of Article X, which is to promote transparency in relation to measures of general 
application relating to trade.327 The European Union notes in support of this proposition the title of 
Article X, which reads "Publication and Administration of Trade Regulations ".328 The European Union 
additionally argues that, in the specific context of Article X, the term "imports" shoul d be interpreted 
as "covering any goods that physically enter into the territory of the Member concerned", although 
conceding that in other provisions of the GATT, the term "imports" must be understood as excluding 
traffic in transit.329 
7.222.   Japan  argues that me asures within the scope of Article V will typically qualify as 
"requirement s, restriction s or prohibitions  on imports or exports" within the sense of Article X:1, or 
alternately, as measures affecting the "distribution" or "transportation" of imports or ex ports.330  
7.6.3.6   Russia's Accession Protocol  
7.6.3.6.1   Paragraph 1161 of Russia's Working Party Report  
7.6.3.6.1.1   Main arguments of the parties  
7.223.   Ukraine  argues that the first sentence of paragraph 1161 of Russia's Working Party Report 
"confirms the application of Article V of the GATT 1994" to any Russian measures governing the 
transit of goods.331 Consequently, Ukraine argues that it will be sufficient to establish that Russia 
has acted inconsistently with Article V to demonstrate inconsistency with paragraph 1161.332 
7.224.   Russia  does not prese nt any arguments in response to Ukraine's claims of inconsistency with 
paragraph s 1161, 1426, 1427 and 1428 of Russia's Working Party Report.  
7.6.3.6.2   Paragraph 1426 of Russia's Working Party Report  
7.6.3.6.2.1   Main arguments of the parties  
7.225.   Ukraine  argues  that paragraph 1426 o f Russia's Working Party Report  applies to a broade r 
category of legal instruments  than Article X:1 of the GATT 1994 in that it applies to any measures 
"pertaining to or affecting trade in goods, services, or intellectual property rights ".333 Nonetheless, 
                                                
323 Brazil's response to Panel question  No. 14 , p. 7. 
324 Canada's response to Panel question  No. 14 , paras. 22 -23. 
325 Ibid. para. 24.  
326 European Union's response to Panel question  No. 14 , para. 42. 
327 Ibid. paras. 37 and 40.  
328 Ibid. para. 39.  
329 Ibid. para. 43.  
330 Japan's response to Panel question No. 14, para. 33. 
331 Ukraine's first written submission, para. 164. 
332 Ibid. 
333 Ibid. paras. 490 -491 and 517.  
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Ukraine submits that measures that fall within the scope of Article s V and X:1 of the GATT  1994 
necessarily pertain to or affect "trade in goods" within the scope of paragraph 1426.334 
Ukraine  further argues that paragraph 1426 of Russia's Working Party Report  and Article X:1 of the 
GATT  1994 "contain the same substantive obligation of p rompt publication", and consequently that 
inconsistency with  Article X:1 of the GATT 1994 will automatically imply inconsistency with 
paragraph  1426 of Russia's Working Party Report.335 
7.6.3.6.3   Paragraph 1427  of Russia's Working Party Report  
7.6.3.6.3.1   Main arguments of the parties  
7.226.   Ukraine  argues  that Russia has violated  the commitments in paragraph 1427 of 
Russia's  Working Party Report because it has failed to publish , prior to their adoptio n, 20 legal  
instruments that implement aspects of the 2016 Belarus Transit Requirements , the 2016 Transit 
Bans on Non -Zero Duty and Resolution No. 778 Goods , and the 2014 Belarus -Russia Border Ban s 
on Transit of Resolution No. 778 Goods.   
7.227.   More specifically, Ukraine claims that the following legal instruments were not published 
before adoption  as required by paragraph 1427 of Russia's Working Party Report : 
a. The PJSC Order336, which implement s aspects of the 2016 Belarus Transit Requirement s 
and the 2016 Transit Ban s on Non -Zero Dut y and Resolution No. 778 Goods. Ukraine 
argues that this legal  instrument  was inadequately published for the purposes of 
paragraph 1427, as it was  only published on the website and print version of the business 
magazine "RZD-Partner Documents",  to which only paying subscribers have access .337 
                                                
334 Ukraine's first written submission,  para. 518; and response to Panel question  No. 11 after the first 
meeting of the Panel , para. 127.  
335 Ukraine's first written submission, paras. 499 and 516 -518.  
336 PJSC Order, (Exhibit UKR -7). 
337 Ukraine's  first written submission, paras . 603 and 605.  
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b. Several resolutions implementing the measures at issue338, as well as Decree  No. 643.339  
These instruments implement various aspects of the 2016 Belarus Transit Requirem ents, 
the 2016 Transit Ban s on Non -Zero Duty and Resolution No. 778 Goods , and the 2014 
Belarus -Russia Border Ban s on Transit of Resolution No. 778 Goods.  Ukraine argues that 
each of these legal instruments was published either after or on the date of thei r adoption, 
which Ukraine defines as the date on which the finalized measures were approved within 
the territory of the Russian Federation.340 
7.6.3.6.4   Paragraph 1428 of Russia's Working Party Report  
7.6.3.6.4.1   Main arguments of the parties  
7.228.   Ukraine  argues  that, as with paragrap h 142 6 of Russia's Working Party Report , measures 
that fall within the scope of Article V and Article X:1 of the GATT  1994 necessarily pertain to or affect 
"trade in goods" within the scope of paragraph 1428.341 Ukraine further claims that paragraph 1428 
"expands the scope of application and the substantive publication requirement of Article X:2 of the 
                                                
338 These resolutions are:  
(a) Resolution No. 7 78, (Exhibits UKR -10, RUS -7);  
(b) Resolution of the Government of the Russian Federation No. 830 , "On amendments to the 
Resolution of the Government of the Russian Federation dated 7 August 2014 No. 778", dated 20 August 2014, 
(Resolution No. 830 ), (Exhibit UKR -11);  
(c) Resolution of the Government of the Russian Federation No. 625, "On amendments to the Resolution 
of the Government of the Russian Federation dated 7 August 2014 No. 778", dated 25 June 2015, 
(Resolution  No. 625), (Exhibit UKR -12);  
(d) Resolution No. 842, (Exhibit UKR -13);  
(e) Resolution of the Government of the Russian Federation No. 981, "On amendment of the Annex to 
the Resolution of the Government of the Russian Federation dated 7 August 2014 No. 778", dated 
16 September  2015, (R esolution No. 981), (Exhibit UKR -14);  
(f) Resolution No. 1397 , (Exhibit  UKR-15);  
(g) Resolution of the Government of the Russian Federation No. 1 "On measures related to the 
implementation of the Decree of the President of the Russian Federation No. 1 of  1 January 2016" , dated 
1 January 2016, (Resolution No. 1), (Exhibits UKR -3, RUS -4);  
(h) Resolution of the Government of the Russian Federation No. 147 , "On approval of requirements to 
the identification means (Seals) including the ones functioning on th e basis of the technology of global satellite 
navigation system GLONASS", dated 27 February 2016, (Resolution No. 147), (Exhibits UKR -6, RUS -5) (as 
amended by Resolution No. 732, (Exhibit UKR -4);  
(i) Resolution of the Government of the Russian Federation No. 157, "On amendment of the Annex to 
the Resolution of the Government of the Russian Federation dated 7 August 2014 No. 778", dated 
1 March  2016, (Resolution  No. 157), (Exhibit UKR -16);  
(j) Resolution No. 276, (Exhibits UKR -8, RUS -6);  
(k) Resolution of the Government of the Russian Federation  No. 388 , "On introduction of amendments 
to Appendix to the Resolution of the Government of the Russian Federation No. 1 of 1 January 2016", dated 
30 April 2016, (Resolution No. 388), (Exhibit UKR -5);  
(l) Resolutio n of the Government of the Russian Federation No. 472, "On amendment of the Annex to 
the Resolution of the Government of the Russian Federation dated 7 August 2014 No. 778", dated 
27 May 2016, (Resolution No. 472), (Exhibit UKR -17);  
(m) Resolution of the Government of the Russian Federation No. 608, "On amendments to the 
Resolution of the Government of the Russian Federation dated 7 August 2014 No. 778", dated 30 June 2016, 
(Resolution No. 608), (Exhibit UKR -18);  
(n) Resolution No. 732, (Exhibit UKR -4);  
(o) Resolution of the Government of the Russian Federation No. 897, "On amendment to Annex to the 
Russian Federation Government Resolution dated 7 August 2014 No. 778", dated 10 September 2016, 
(Resolution  No. 897), (Exhibit UKR -19);  
(p) Resolution of the  Government of the Russian Federation No. 1086, "On amendment of the Annex to 
the Resolution of the Government of the Russian Federation dated 7 August 2014 No. 778", dated 
22 October  2016, (Resolution No. 1086), (Exhibit UKR -20);  
(q) Resolution No. 790, (Exhibit UKR -70); and  
(r) Resolution of the Government of the Russian Federation No. 1292, "On amendments to the Annexes 
to Resolution of the Government of the Russian Federation of 7 August 2014 No. 778", dated 25 October 2017, 
(Resolution No. 1292), (Ex hibit UKR -94). 
339 Decree No. 643, (Exhibits UKR -98, RUS -13). (Ukraine's response to Panel question No. 12 after the 
first meeting of the Panel, para. 135.)  
340 Ukraine's first written submission, paras. 595 and 604 -606; and opening statement  at the first 
meeting of the Panel , para. 63.  
341 Ukraine's first written submission, para. 548.  
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GATT 1994" because paragraph 1428 prohibits measures from becoming "effective" prior to 
publication while Article X:2 prohibits measures from being "enforced" prior to "official" 
publication.342 As Ukraine considers that a measure can only be "enforced" once it has been made 
"effective", Ukraine consequently contends that "a violation of Article X:2 automatically impl ies a 
violation of paragraph 1428 ."343 Ukraine pr oceeds to argue that the contested instruments are 
inconsistent with paragraph  1428 of Russia's Working Party Report for the same reasons that they 
are inconsistent with Article  X:2 of the GATT 1994.344 
7.6.4   Applicability of Article XXI(b)(iii) of the GATT 1994 t o commitments in Russia's 
Accession Protocol  
7.6.4.1   Introduction  
7.229.   Ukraine makes several claims of inconsistency with Russia's Accession Protocol based on 
commitments contained in paragraphs 1161, 1426, 1427 and 1428 of Russia's Working Party 
Report.345 The Panel has already concluded that the measures  at issue  are covered by 
Article  XXI(b)(iii), and consequently that it is not necessary to address each of Ukraine's claims of 
inconsistency with Articles V and X of the GATT 19 94. The applicability of Article X XI(b)(iii) to those 
provisions of the GATT 1994 is explicitly contemplated by the introduction to  Article XXI, which 
provides that "[n]othing in this Agreement shall be construed ". 
7.230.   Conversely, n either panels nor the Appellate Body have previously considere d the 
applicability of Article XXI(b)(iii) of the GATT  1994 to commitments  in the  Accession Protocol  of any 
acceding Member.346 Several disputes have, however, previously considered the applicability of 
Article XX of the GATT 1994 to individual commitments i n China's  Accession Protocol. The Panel  
consider s these disputes to be relevant insofar as they inform its analysis of the relationship between 
a Member's Accession Protocol and provisions of the GATT  1994.   
7.231.   The Appellate Body has held that the relationshi p between provisions in 
China's  Accession  Protocol and provisions in the WTO Agreement  must be determined on a 
case-by-case basis.347 In some disputes, this analysis has led to a determination that Article  XX of 
the GATT 1994 could be invoked to justify a br each of an independent obligation under 
China's  Accession Protocol348, while in others, the same analysis led to a determination that 
Article  XX could not  be invoked in rela tion to the contested provision .349 In China – Rare Earths, 
                                                
342 Ukraine's first written submission, paras. 569 -570. 
343 Ibid. para. 571.  
344 Ibid. para. 585.   
345 As noted in footnote 229, these paragraphs are incorporated into Russia's Accession Protocol by 
reference. (See Russia's Accession Protocol, para. 2 of Part I; and Working Party Report, para. 1450.)  
346 The Panel recalls that in prior disputes involving the  interpretation of China's Accession Protocol, 
panels and the Appellate Body proceeded on the assumption that paragraph 1.2 of that Protocol served to 
make certain obligations enforceable under the DSU where this issue was not contested by the parties.  
(Appellate Body Reports, China – Rare Earths, fn 422. See also Appellate Body Reports, China – Auto Parts, 
paras. 213 -214; and Panel Reports, China – Rare Earths, para. 7.85.) The  Panel observes that paragraph 2  of 
Part I  of Russia's Accession Protocol is  identical  in all relevant respects  to paragraph 1.2 of China's Accession 
Protocol . Both paragraphs provide that the WTO Agreement to which each Member accedes "shall be the 
WTO Agreement" as "rectified, amended or otherwise modified by such legal instruments as may have entered 
into force" before the relevant date of accession, and also provide that the Protocol "shall be an integral part of 
the WTO Agreement". Moreover, n either Ukraine nor Russia ha s contest ed the enforceability of the  provisions 
of Russia's Accession Protocol  and Working Party Report  under the DSU. Consequently, the Panel proceeds on 
the premise that the commitments in  paragraphs 116 1, 1426, 1427 and 1428 of Russia's Working Party Report  
are enforceable under the DSU.  
347 Appellate Body Reports , China – Rare Earths, paras. 5.50 and 5.57.  
348 For instance,  in China – Publications and Audiovisual Products, the Appellate Body addressed 
whether Article XX(a) of the GATT 1994 applied to a provision on trading rights in paragraph 5.1 of 
China's  Accession Protocol. (Appellate Body Report, China – Publication s and Audiovisual Products , 
paras.  214-215.) The Appella te Body concluded that China could rely upon the introductory clause of 
paragraph 5.1 of its Accession  Protocol to justify any violation as necessary to protect public morals in China, 
within the meaning of Article XX(a) of the GATT 1994. (Ibid. para. 233. ) For the analysis of the Appellate Body 
on this issue, see ibid. paras. 216 -233. 
349 For instance, in China – Raw Materials, the Appellate Body examined whether Articles XX(b) and 
XX(g) of the GATT 1994 applied to paragraph 11.3 of China's Accession Protoco l, which obliged China to 
eliminate export taxes and charges. (Appellate Body Reports, China – Raw Materials , para. 278.) The 
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the Appellate Body held that the specific relationship between individual provisions in 
China's  Accession  Protocol and provisions of the GATT 1994 must be ascertained "through scrutiny 
of the provisions concerned, read in the light of their context and object and purpose, with due 
account being taken of the overall architecture of the WTO system as a single package of rights and 
obligations , and any specific provisions that govern or shed light o n the relationship between the 
provisions of different instruments ".350 The Appellate Body also noted that such an assessment must 
be predicated on a "thorough analysis of the relevant provisions on the basis of the customary rules 
of treaty interpretation, as well as the circumstances of each dispute ".351 
7.232.   The Panel consider s that the approach outlined by the Appellate Body in China – Rare Earths 
is equally applicable to the relationship between Russia's  Accession Protocol and Article XXI(b)(iii) 
of the GATT 1994. In the Panel's view, the architecture of the WTO system confer s a single package 
of rights and obligations upon Russia, of which the GATT 1994 and its Accession Protocol are 
constituent parts. In particular, where obligations under Russia's Accession Protocol are closely 
linked to obligations under the GATT 1994, the  Panel considers that this constitutes a strong 
argument  for the applicability of Article XXI(b)(iii) to such commitments.  
7.233.    The Panel proceeds to apply the analytical framework outlined by the Appellate Body to 
determine the applicability of Article XXI(b) (iii) to the commitments in individual provisions of 
Russia's Working Party Report.352 In doing so, the Panel considers:  (a) the text of each provision, 
as well as any express textual references, or lack thereof, to the GATT 1994 or other covered 
agreements;  (b) the context provided by other relevant provisions in Russia's Accession Protocol 
and Working  Party Report ; (c) the content  of each provision and its relationship to obligations under 
the GATT 1994; (d) the overall architecture of the WTO system as a s ingle package of rights and 
obligations ; and ( e) the specific circumstances of this dispute .353 
7.6.4.2   Paragraph 1161 of Russia's Working Party Report  
7.6.4.2.1   Paragraph 1161 of Russia's Working Party Report  and Article XXI(b)(iii) of the 
GATT 1994  
7.234.   Paragraph 1161 of Russia's Working Party Report  provides , in relevant part, that:  
The representative of the Russian Federation confirmed that the Russian Federation 
would apply all its laws, regulations and other measures governing transit of goods 
(including energy), such as those governing charges for transportation of goods in 
transit by road, rail and air, as well as other charges and customs fees imposed in 
connection with transit, including those mentioned in paragraphs 1155 and 1156 in 
conformity with the provisi on of Article V of the GATT 1994 and other relevant provisions 
of the WTO Agreement.  
7.235.   Paragraph 1161 requires Russia to apply certain measures in "conformity with the provisions 
of Article V of the GATT 1994 and other relevant provisions of the WTO Agreeme nt".354 The explicit 
textual reference to "other relevant provisions of the WTO Agreement" provides support for the 
applicability of other provisions of the covered agreements. Additionally, the ordinary meaning of 
the term "relevant" is whether such provisi ons have a " bearing on" or are "connected with" the 
matter, or are "legally pertinent or sufficient ".355 Applying this definition, the Panel considers that 
other provisions of the covered agreements will be "relevant" to paragraph 1161 provided that they 
have a demonstrable legal bearing upon Article V of the GATT 1994. Article XXI(b)(iii) clearly falls 
                                                
Appellate  Body concluded that China could not rely on Articles  XX(b) and XX(g) in relation to paragraph 11.3. 
(Appellate Body Repo rts, China – Raw Materials , para. 307.) For the analysis of the Appellate Body  on this 
issue, see ibid.  paras. 279 -306. 
350 Appellate Body Reports, China – Rare Earths,  para. 5.55 . (emphasis added)  
351 Ibid. para. 5.57. 
352 Ibid. paras. 5.50 and 5.57.  
353 Ibid. para. 5.74.  
354 Emphasis added.  
355 Shorter  Oxford English Dictionary , 5th edn, A. Stevenson (ed.), (Oxford University Press, 2003), 
Vol. 2, p. 2522.  
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within this definition , as it is directly applicable to Article V of the GATT 1994 through the phrase 
"[n]othing in this Agreement shall be construed ".  
7.236.   The immediate context provided by the other provisions of Russia's Working Party Report 
also informs the interpretation of paragraph 116 1, particularly those discussions under the shared 
subheading "Regulation of Trade in Transit ". The Panel observes that, for instance, in  
paragraph  1160 of Russia's Working Party Report, the representative  for Russia confirmed that in 
relation to certain bans on transit, " in general, such provisions were applied for reasons of safety, 
health or national security ."356 There is no r ecord of any Members contesting or objecting to  this 
assertion .  
7.237.   Finally, the content of paragraph 1161 of Russia's Working Party Report and its relationship 
to obligations under the GATT 1994 is also relevant to the Panel's analysis.357 The Panel observes 
that the commitments in  paragraph  1161 and obligations under the GATT 1994 are closely linked in 
that paragraph  1161 requires Russia to apply measures governing transit of goods "in conformity" 
with Article V of the GATT 1994. If Article XXI(b)(iii) were inapplicable to this provision, this could 
thus potentially  allow Ukraine to  succeed on a  claim of inconsistency with commitments in Russia's 
Accession Protocol, and not an identical claim under the GATT 1994.   
7.238.   For these reasons, the Pan el considers that Russia can rely on the phrase "other relevant 
provisions of the WTO Agreement"  in order to justify any inconsistency with the commitments in 
paragraph 1161 of Russia's Working Party Report as necessary for the protection of its essential 
security interests taken in time of an "emergency in international relations" within the meaning of 
Article XXI(b)(iii) of the GATT  1994.  
7.6.4.2.2   Paragraph 1161 of Russia's Working Party Report  and Article V:2 of the GATT 
1994  
7.239.   The Panel recalls its conclusion that , had the measures been taken in normal times, every 
aspect of them would have been prima facie  inconsistent with either the first or second sentence of 
Article V:2 of the GATT 1994, or both. Based on the foregoing analysis, t he Panel consid ers that  
paragraph 1161 of Russia's Working Party Report merely reiterates Russia's commitments under 
Article V of the GATT 1994. Moreover, the Panel recalls that Ukraine's claims under paragraph 1161 
of Russia's Working Party Report are substantively iden tical to Ukraine's claims under Article  V.358  
7.240.   The Panel therefore considers  that, had the measu res been taken in normal times , i.e. had 
they not been taken in time of an "emergency in international relations" (and met the other 
conditions of Article XXI(b)) , the measures  would have also been prima facie  inconsistent with  
paragraph 1161  of Russia's Working Party Report  to the extent that they would also be prima facie 
inconsistent with  either the first or second sentence of Article V:2 of the GATT 1994 , or both . 
7.6.4.3   Paragraph 1426 of Russia's Working Party Report and Article XXI(b)(iii) of the 
GATT 1994  
7.241.   Paragraph 1426  of Russia's Working Party Report  provides , in relevant part, that :  
The representative of the Russian Federation confirmed that from the date  of accession, 
all laws, regulations, decrees, decisions, judicial decisions and administrative rulings of 
                                                
356 Emphasis added . 
357 The Panel recalls that in China – Publications and Audiovisual Products , the Appellate Body observed 
the close interlinkage between the obligations assumed under paragraph 5.1 of China's Accession Protocol and 
the GATT 1994, given that paragraph 5.1 was "clearly concerned with trade in goods ". (Appellate Body Report, 
China – Publications and Audiovisual Products, para. 226. (emphasis original)) The Appellate Body additionally 
noted that paragraph  5.1 should not "be interpreted in a way that would allow a complainant to deny China 
access to a defence merely by asserting a claim u nder paragraph 5.1 and by refraining from asserting a claim 
under other provisions of the covered agreements relating to trade in goods that apply to the same or closely 
linked measures". (Ibid.  para. 229.) This was material to the Appellate Body's conclus ion that China could rely 
on Article XX(a) as a defence to its obligations under paragraph 5.1 of its Accession Protocol. (Ibid.  para. 233.)  
358 Ukraine's only argument of inconsistency with paragraph 1161 of Russia's Working Party Report is 
that a demonstra tion of inconsistency with Article V of the GATT 1994 will also demonstrate inconsistency with 
paragraph 1161. (See Ukraine's first written submission, para. 164.)  
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general application pertaining to or affecting trade in goods, services, or intellectual 
property rights, whether adopted or issued in the Russian Fe deration or by a competent 
body of the CU, would be published promptly in a manner that fulfils applicable 
requirements of the WTO Agreement, including those of Article X of the GATT 1994, 
WTO GATS Agreement, and the WTO TRIPS Agreement.  
7.242.   Paragraph 1426 re quires Russia to publish  certain  measures promptly in a manner that 
"fulfils applicable requirements of the WTO Agreement , including those of Article X of the 
GATT  1994".359 The explicit textual reference to "applicable requirements of the WTO Agreement" 
provides support for the applicability of other provisions of the covered agreements. The text of 
paragraph 1426 also explicitly refers to Article X of the GATT 1994 as an ex ample of a provision 
containing such "applicable requirements ". The ordinary meaning of the term "applicable" is whether 
such requirements are "able to be applied ( to a purpose etc.)", or are "relevant", "suitable" or 
"appropriate ".360 The ordinary meaning o f the term "requirement" is "[ s]omething called for  or 
demanded", or "a condition which must be complied with ".361 In the Panel's view, just as Article X 
of the GATT 1994 is specified to contain "applicable requirements" to paragraph 1426, 
Article  XXI(b)(iii ) clearly contains "applicable requirements" to Article X of the GATT 1994. This 
follows from the fact that Article X is subject to Article XXI(b)(iii)  through the phrase "[n]othing in 
this Agreement shall be construed ". 
7.243.   Other  provisions of Russia's W orking Party Report also inform  the Panel's  interpretation of 
paragraph  1426. In particular, the Panel contrasts the language used in paragraph 1426 with that 
used in paragraph 1427.  Paragraphs 1426 and 1427 both create obligations relating to the 
publication o f certain measures "pertaining to or affecting trade in goods, services, or intellectual 
property rights ". However, unlike paragraphs 1161, 1426 and 1428, paragraph  1427 specifically 
omits any textual reference to "relevant provisions" or "applicable requi rements" of the 
"WTO  Agreement", and instead includes its own specific reference to "cases of emergency" and 
"measures involving national security ". In the Panel's view, the absence of any equivalent textual 
reference in paragraph 1427 further underpins th e significance of the phrase "applicable 
requirements of the WTO Agreement" in paragraph 1426.  
7.244.   Finally, the content of paragraph 1426 and its relationship to obligations under the 
GATT  1994 are also relevant to the Panel's analysis. The Panel observes that  the commitments in 
paragraph  1426 and obligations under the GATT 1994 are closely linked in that  paragraph 142 6 
contains the same requirement  to ensure that measures relating to trade in goods are "published 
promptly"  as that contained in Article X:1  of the GATT 1994.362 If Article XXI(b)(iii) were inapplicable 
to this provision, this could thus potentially  allow Ukraine to  succeed on a  claim of inconsistency 
with commitments in Russia's Accession Protocol, and not an id entical claim under the GATT 1994.   
7.245.   For these reasons, the Panel considers that Russia can rely on the phrase "in a manner that 
fulfils applicable requirements of the WTO Agreement " in order to justify any inconsistency with  the 
commitments in  paragraph 14 26 of Russia's Working Party Report as necessary for the protection 
of its essential security interests taken in time of an "emergency in international relations" within 
the meaning of Article XXI(b)(iii) of the GATT  1994.  
                                                
359 Emphasis added.  
360 Shorter Oxford English Dictionary , 5th edn, A. Stevenson (ed.) (Oxford U niversity Press, 2003), 
Vol. 1, p. 102. (emphasis original)  
361 Ibid. Vol. 2, p. 2542. 
362 Paragraph 1426 creates a commitment to publish promptly " all laws, regulations, decrees, decisions, 
judicial decisions and administrative rulings of general application pertaining to or affecting trade in goods, 
services, or intellectual property rights ", whereas Article X:1 of the GATT 1994 creates an obligation to publish 
promptly "[l]aws, regulations, judicial decisions and administrative rulings of general application , made 
effective by any [Member], pertaining to the classification or the valuation of products for customs purposes, or 
to rates of duty, taxes or other charges, or to requirements, restrictions or prohibitions on imports or exports 
or on the transfer of payments therefor, or affecting their sale, distribution, transportation, insurance, 
warehousing, inspection, exhibition, processing, mixing or other use ". While the scope of the provisions differs, 
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7.6.4.4   Paragraph 1427 of Russia's Workin g Party Report and Article XXI(b)(iii) of the 
GATT 1994  
7.246.   Paragraph 1427  of Russia's Working Party Report provides , in relevant part,  that:  
The representative of the Russian Federation further confirmed that, except in cases of 
emergency, measures involving  national security, specific measures setting monetary 
policy, measures the publication of which would impede law enforcement, or otherwise 
be contrary to the public interest, or prejudice the legitimate commercial interest of 
particular enterprises, publi c or private, the Russian Federation would publish all laws, 
regulations, decrees (other than Presidential decrees), decisions and administrative 
rulings of general application pertaining to or affecting trade in goods, services, or 
intellectual property r ights, prior to their adoption and would provide a reasonable 
period of time, normally not less than 30 days, for Members and interested persons to 
comment to the responsible authorities before the relevant measure was finalized or 
submitted to the compete nt CU bodies.  
7.247.   Paragraph 1427 omits any reference to "relevant provisions" or "applicable requirements" of 
"the WTO Agreement" or the GATT 1994, but instead refers specifically to exceptions to the 
obligations undertaken in that paragraph for "cases of emer gency" and "measures involving national 
security ".  
7.248.   The context provided by the other provisions of the Multilateral Trade Agreements  informs 
the Panel's  interpretation of paragraph 1 427.363 In particular, paragraph 1427 creates obligations 
relating to measu res "pertaining to or affecting trade in goods, services, or intellectual property 
rights ". Consequently, the Panel considers the use of the term "emergency" across those covered 
agreements relating to trade in goods, services and intellectual property rig hts to be material to 
its understanding of the phrase "cases of emergency" in paragraph 1427. In this respect, Panel notes 
that the only context in which the word "emergency" is consistently used across the GATT 1994, the 
GATS and the TRIPS Agreement is in  creating a general exception for actions taken by a Member 
which it considers necessary for the protection of its essential security interests "taken in time of 
war or other emergency in international relations ".364 This suggests that an "emergency in 
international relations" is the type of "emergency " contemplated in paragraph 1427 of 
Russia's  Working Party Report.  
7.249.   The content of paragraph 1427 and its relationship to obligations under the GATT 1994 are 
also relevant to the Panel's analysis. Unlike paragraphs 1161 and 1426, paragraph 1427 distinctly 
creates several commitments which have no direct counterpart in the GATT 1994.365 The scope of 
the measures covered by paragraph 1427 also differs from Articles  X:1 and X:2 of the GATT 1994.366 
                                                
363 The Panel recalls that, in China – Rare Earths, the Appellate Body concluded that paragraph  1.2 of 
China's Accession Protocol served to make that Protocol and the Multilateral Trade Agreements part of "a single 
package of rights and obligations with respect to China as a WTO Member". (Appellate Body Rep orts, 
China  – Rare Earths, para. 5.72.) The Appellate Body consequently noted that any analysis of the individual 
provisions in China's Accession Protocol should take into account "the overall architecture of the WTO system 
as a single package of rights an d obligations and any other relevant interpretive elements". (Ibid. para. 5.74.)  
364 See Article XXI(b)(iii)  of the GATT 1994 ( "taken in time of war or other emergency in international 
relations" ); Article  31(b) of the TRIPS Agreement ( "in the case of a nati onal emergency or other circumstances 
of extreme urgency or in cases of public non -commercial use" ), and Article 73(b)(iii)  of the TRIPS Agreement 
("taken in time of war or other emergency in international relations" ); and Article III:1  of the GATS ( "excep t in 
emergency situations" ), Article X :1 of the GATS ( "on the question of emergency safeguard measures" ), and 
Article XIVbis :1(b)(iii)  of the GATS ( "taken in time of war or other emergency in international relations" ). 
365 The text of paragraph 1427 creates at least three separate obligations  to: (a) publish the covered 
measures prior to their adoption; (b) provide a reasonable period of time, normally not less than 30 days, for 
Members and interested persons to comment to responsible authorities before such measures are finalized or 
submitted to the competent CU bodies; and (c) take any such comments into account. However, in the specific 
circumstances of this dispute, Ukraine has only argued that Russia has acted inconsistently with its obligation 
to publish  certain legal instruments prior to their adoption. (See Section 7.6.3.6.3 above.)  
366 Paragraph 1427 concerns any "laws, regulations, decrees (other than Presidential decrees), decisions 
and administrative rulings of general application pertaining to or aff ecting trade in goods, services, or 
intellectual property rights", whereas Article X:2 of the GATT 1994 only concerns any measures of general 
application "effecting an advance in duty, or other charges on imports under an established and uniform 
practice, or impose a new or more burdensome requirement, restriction or prohibition on imports, or on the 
transfer of payments therefor". (For the scope of Article X:1 of the GATT 1994, see fn 362 above.)  WT/DS512/R  
 
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However, the commitments in paragraph 1427 and obligations under the GATT 1994 are still closely 
linked to the extent that both impose  obligations on Russia relating to the publication of measures 
concerning trade in goods.  
7.250.   For these reasons, the Panel considers that Russia can rely on the phrase "except in cases 
of emergency " in order to justify any inconsistency with paragraph 1427 of Russia's Working Party 
Report as necessary for the protection of its essential security interests taken in time of an 
"emergency in international relations" within the meaning of Article XXI(b)(iii) of the GATT  1994.  
7.6.4.5   Paragraph 1428 of Russia's Working Part y Report and Article XXI(b)(iii) of the 
GATT 1994  
7.251.   Paragraph 1428 of Russia's Working Party Report  provides that:  
The representative of the Russian Federation confirmed that, from the date of accession, 
no law, regulation, decree, decision or administrativ e ruling of general application 
pertaining to or affecting trade in goods, services, or intellectual property rights, 
whether adopted or issued in the Russian Federation or by a competent body of the 
[Customs Union (CU)], would become effective prior to pu blication, as provided for in 
the applicable provisions of the WTO Agreement, including the GATT 1994, 
the WTO GATS Agreement, and the WTO TRIPS Agreement. The Working Party took 
note of this commitment.  
7.252.   Paragraph 1428 requires Russia to ensure that certai n measures do not become effective 
before publication " as provided for in the applicable provisions of the WTO Agreement , including the 
GATT  1994".367 As mentioned above, the ordinary meaning of the term "applicable" is whether such 
provisions are "able to b e applied ( to a purpose etc.)", or are "relevant", "suitable" or 
"appropriate ".368 The ordinary meaning of the term "provided" is "on the condition, supposition, or 
understanding that" or "it being stipulated, or arranged that ".369 Consequently, the Panel considers 
that the ordinary meaning of the text of paragraph 1428 could support two possible interpretations. 
First, the phrase "as provided for" could be construed as merely stating  that obligations equivalent 
to paragraph 1428 ar e also stipulated in "applicable provisions of the WTO  Agreement ". Conversely, 
the phrase "as provided for" could be construed as specifying that other provisions of the 
WTO Agreement are "applicable" to the obligations in paragraph 1428.  
7.253.   Other  provisions of Russia's W orking Party Report also inform  the Panel's  interpretation of 
paragraph 1 428. In particular, the Panel has already examined the textual differences between 
paragraphs 1426 and 1427.370 The Panel considers that this analysis is equally applicable  to the 
differences between paragraphs  1427 and 1428.  In the Panel's view, the absence of any equivalent 
textual reference in paragraph 1427 underpins the significance of the phrase "the applicable 
provisions of the WTO Agreement" in paragraph 1428.  
7.254.   Finally, the content of paragraph 1428 of Russia's Working Party Report and its relationship 
to obligations under the GATT  1994 is also relevant to the Panel's analysis. Unlike paragraphs 1161 
and 1426, paragraph 1428 distinctly commits Russia to ensure that the covered measures are not 
made effective  before publication , which has no explicit  counterpart in the GATT 1994 . The scope of 
the measures covered by paragraph 1428 also differs from Articles  X:1 and X:2 of the GATT  1994.371 
However, the commitments in parag raph 1428 of Russia's Working Party Report and the obligations 
under the GATT 1994 are still closely linked to the extent that both impose obligations on Russia 
relating to the publication of measures concerning trade in goods.  
                                                
367 Emphasis added.  
368 See para. 7.242 and fn 360 above.   
369 Shorter Oxford English Dictionary , 5th edn, A. Stevenson (ed.)  (Oxford University Press, 2003), 
Vol. 2, p. 2382.  
370 See para. 7.243 above.  
371 Paragraph 1428 concerns any "laws, regulations, decrees, decisions or administrative rulings of 
general application pertaining to or affecting trade in goods, services or intellectual property rights", whereas 
Article X:2 of the GATT 1994 concerns any mea sures of general application "effecting an advance in duty, or 
other charges on imports under an established and uniform practice, or impose a new or more burdensome 
requirement, restriction or prohibition on imports, or on the transfer of payments therefo r". (For the scope of 
Article X:1, see fn 362 above.)  WT/DS512/R  
 
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7.255.   For these reasons, the Pane l considers that Russia can rely on the phrase "as provided for 
in the applicable provisions of the WTO Agreement " in order to justify any inconsistency with the 
commitments in paragraph 1428 of Russia's Working Party Report as necessary for the protection  
of its essential security interests taken in time of an "emergency in international relations" within 
the meaning of Article XXI(b)(iii) of the GATT  1994.  
7.6.4.6   Conclusion  
7.256.   The Panel considers that Russia could justify any inconsistency with the commitments in 
paragraphs 1161, 1426, 1427 and 1428 of Russia's Working Party Report as necessary for the 
protection of its essential security interests taken in time of an "emergency in international relations" 
within the meaning of Article XXI(b)(iii) of the GATT  1994.   
7.257.   The Panel also considers that, had the measu res been taken in normal times , i.e. had they 
not been taken in time of an "emergency in international relations" (and met the other conditions of 
Article XXI(b)) , Ukraine would have made a prima facie  case that the measures  were inconsistent 
with paragraph 1161 of Russia's Working Party Report to the extent that they would also be prima 
facie inconsistent with  either the first or second sentence of Article V:2 of th e GATT 1994 , or both .  
7.258.   The Panel  does not consider it necessary to address further Ukraine's claims based on 
commitments in  paragraphs  1426, 1427 and 1428 of Russia's  Working Party Report.  
7.7  Panel's terms of reference and the existence of the measures   
7.259.   In this Section of the Report, the Panel addresses a number of issues related to its terms of 
reference and to the existence of the measures at issue.  
7.7.1   Identification of the measures and claims, and their relationship to each other  
7.260.   In its opening statement at the first meeting of the Panel, Russia argued that Ukraine's panel 
request fails to meet the requirements of Article 6.2 of the DSU in a number of respects:  
a. Ukraine's panel request fails to make clear how the measures in each o f the two distinct 
groups set forth in the panel request operate together.372  
b. The panel request does not adequately explain which treaty provisions are alleged to be 
infringed by each of the challenged measures in the two distinct groups.373  
c. Ukraine's first written submission presents the challenged measures in a completely 
different manner from the presentation in its panel request, i.e. "as four individual 
measures that are not connected and do not operate together ". Russia considers that, as 
respondent, it  was placed in an uncertain situation in presenting its defence because it 
was required to guess what the Panel would identify as the measures at issue on the basis 
of the Panel's interpretation of the substance of the alleged violation.374  
7.261.   Russia thus argu ed that Ukraine's panel request, both in general, and in particular with 
respect to the identification of the specific measures, fails to satisfy the requirements of Article  6.2 
of the DSU.375 
7.262.   Ukraine respond ed that its presentation of the specific measures at issue in two separate 
sections of its panel request does not necessarily mean that the measures identified within each 
                                                
372 Russia's opening statement at the first meeting of the Panel, paras. 15 -16. More specifically, Russia 
argues that Ukraine's panel request fails to establish the "nexus" between the measures within eac h distinct 
group. (Ibid. para. 21. See also Russia's opening statement at the second meeting of the Panel, paras. 7 -8.) 
373 Russia's opening statement at the first meeting of the Panel, paras. 15 -16. See also Russia's opening 
statement at the second meeting of the Panel, para. 8.  
374 Russia's opening statement at the first meeting of the Panel, paras. 19 -20 (referring to 
Appellate  Body Report, EC – Selected Customs Matters , para. 136). See also Russia's opening statement at the 
second meeting of the Panel, para . 9.  
375 See Russia's opening statement at the first meeting of the Panel, para. 23.  
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section must be presumed to operate together.376 Nor is there any requirement in Article 6.2 of the 
DSU for a complainant to identify ho w all of the measures at issue operate together unless it is 
necessary in order to present the problem clearly.377 In addition, Ukraine argued that 
Russia's  complaint regarding the reorganization of the presentation of the measures in 
Ukraine's  first written  submission does not address why the descriptions of the measures in the 
panel request were not sufficiently clear. Ukraine argued that the measures as described in its first 
written submission correspond fully to the measures as identified in its panel re quest.378 
Finally,  Ukraine argued that the panel request plainly connects the specific measures at issue with 
the relevant provisions of the covered agreements that Ukraine claims have been infringed.379 
7.263.   In what follows, the Panel  first describe s the presentat ion of the measures and claims in 
Ukraine's  panel  request, and in Ukraine's first written submission, respectively, before addressing 
Russia's arguments that the panel request does not satisfy the requirements of Article 6.2 of the 
DSU. 
7.7.1.1   Presentation of the  measures and claims in Ukraine's panel request  
7.264.   Ukraine's panel request refers separately to a "first group of measures" and the "legal basis 
for the complaint" in respect of those measures (section II of the panel request), and a 
"second  group of measures " and the "legal basis for the complaint" in respect of those measures 
(section III of the panel request).  
7.265.   Section II.A. of Ukraine's panel request, which is entitled "First Group of Measures", states 
that Russia has imposed measures concerning traffic in transit from the territory of Ukraine to the 
territory of the Republic of Kazakhstan, through the territory of Russia. These measures mandate 
that all international cargo transit by road and rail transport from the territory of Ukraine to the 
territory of the Republic of Kazakhstan, through the territory of Russia, be carried out exclusively 
from the territory of Belarus and comply with a number of additional conditions  related to  
identification seals and registration card s at specific permanent or mobile c heckpoints . It is also 
noted in  this section that the above -referenced measures apply  as well  to traffic in transit from 
Ukraine destined for the Kyrgyz  Republic, as of 1 July 2016.380 
7.266.   Section II.A. of Ukraine's panel request further identifies as a measure a ban on all road and 
rail transit of : (a) goods that are subject to non -zero import duties according to the 
Common  Customs Tariff of the EaEU, and (b) goods falling under the 2014 import bans set forth in 
the list annexed to Resolution No. 778.381   
7.267.   Section  II.A. of Ukraine's panel request then sets forth the legal instruments through which 
it understands the above -referenced measures to be  imposed. These instruments include 
Russian  Presidential Decrees (Decree No. 1 and Decree No. 319, which amends Decree N o. 1), as 
                                                
376 Ukraine's response to Panel question No. 1 after the first meeting of the Panel, para. 42; and 
opening statement at the second meeting of the Panel, para. 18.  
377 Ukraine's  response to Panel question No. 1 after the first meeting of the Panel, para. 42.  
378 Ibid. para. 63.  
379 Ibid. paras. 65 -68. 
380 Request for the establishment of a panel  by Ukraine , WT/DS512/3 (Ukraine's panel request), s ection 
II.A., p. 2.  
381 Resolution No. 778  imposes ban s on the importation of various agricultural products, raw materials 
and foodstuffs , as listed in the Resolution  and originating from the United States, EU Member States, Canada, 
Australia , and Norway . (See Resolution No. 778 , (Exhibits UKR -10, RUS-7).) On 13 August 2015, the import 
bans imposed by Resolution No. 778  were extended to the listed goods originating from Albania, Montenegro, 
Iceland, Liechtenstein and Ukraine . (See Resolution No. 842 , (Exhibit UKR -13).) Another resolution of the 
Russian Government, enacted on 21 December 2015, specified that the import prohibitions in respect of the 
goods listed in Resolution No. 778 would be applied to Ukraine  as of 1  January  2016. (See Resolution No. 1397 , 
(Exhibit  UKR-15). See also Russia's openin g statement at the first meeting of the Panel, para. 6. ) 
On 1 January  2016, the date of the amendment of Resolution No. 778, the European Union and Ukraine had 
agreed to apply provisions of the DCFTA  that are part of the EU -Ukraine  Association Agreement. (Ukraine's first 
written submission, para. 25.)  The duration of the imp ort bans has been extended a number of times, most 
recently by Resolution No. 790 , which extends the import ban until 31 December 2018 . (See Resolution No. 790, 
(Exhibit UKR -70).)  
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well as a resolution of the Russian Government implementing Decree No. 1 (Resolution No. 1, also 
dated 1 January 2016).382, 383 
7.268.   With respect to the "legal basis of the complaint", section II.B. of Ukraine's panel request 
states that the measures identified in section II.A. are inconsistent with a number of provisions of 
Articles V, XI:1 and X of the GATT 1994, along with paragraphs of Russia's Working Party Report , 
as incorporated into Russia's Accession Protocol by reference .384 In additio n to identifying the claims 
of WTO -inconsistency, this section of Ukraine's panel request provides a brief explanation as to why 
the measures in question are considered inconsistent with the cited provisions of the covered 
agreements.  
7.269.   Section III.A. of Ukr aine's panel request identifies a second group of measures, which it 
describes as "other measures concerning traffic in transit from the territory of Ukraine through the 
territory of the Russian Federation ". These other measures are further described in th ree 
sub-categories.  
a. The first sub -category encompasses measures requiring that, from 30 November 2014, 
transit of goods subject to veterinary and phytosanitary surveillance, and which are 
included in the list approved by Resolution No. 778, dated 7 August  2014, and subsequent 
amendments, be generally prohibited through checkpoints of the Republic of Belarus.385 
Additionally, transit of such goods destined for Kazakhstan may only take place upon 
permits issued by the Committee of Veterinary Control and Survei llance of the Ministry of 
Agriculture of the Republic of Kazakhstan (indicating the Russian checkpoints on the 
external border of the EaEU), while transit of the same goods destined for third countries 
can take place only upon permits issued by  the Rosselk hoznadzor .386 Ukraine's  panel 
request then provides a list of the various legal instruments by which it understands Russia 
to impose the measures in this first sub -category.387 
b. The second sub -category is described as "restrictions on the traffic in transit fro m the 
territory of Ukraine through the territory of the Russian Federation to countries in 
Central  and Eastern Asia and Caucasus other than the Republic of Kazakhstan and the 
Kyrgyz Republic by de facto applying Decree No. 1 and Resolution No. 1 to transit  from 
the territory of Ukraine to third countries other than the Republic of Kazakhstan and the 
Kyrgyz Republic ".388 
c. The third sub -category refers to "any other related measures adopted and/or applied by 
the Russian Federation concerning traffic in transit f rom the territory of Ukraine to 
                                                
382 Decree No. 1, (Exhibits UKR -1, RUS -1); Decree No. 319, (Exhibits UKR -2, RUS-2); Resolution  No. 1, 
(Exhibits UKR -3, RUS -4) (as amended by Resolution No. 388, (Exhibit UKR -5); and Resolution  No. 732, (Exhibit 
UKR-4)).  
383 Section II.A. of Ukraine's panel request also identifies the following legal instruments through which 
the mea sures identified in section II.A. are imposed: Decree No. 560, (Exhibits UKR -9, RUS -3), 
(as subsequently extended by Decree No. 320 of 24 June 2015 and Decree No. 305 of 29  June 2016); 
Resolution  No. 147, (Exhibits UKR -6, RUS -5) (as amended by Resolution N o. 732, (Exhibit UKR -4)); 
PJSC Order, (Exhibit UKR -7); and Resolution No. 276, (Exhibits UKR -8, RUS -6) (as amended by 
Resolution  No. 732, (Exhibit UKR -4)). Both parties advised in the interim review stage that Decree No. 560 has 
since been further extended  until 31 December 2019 by Decree No. 420, which was adopted by the President 
of the Russian Federation on 12 July 2018. Section II.A also identifies Resolution No. 778, (Exhibits UKR -10, 
RUS-7) and its amendments. (See  fn 385 below for a full list of amen dments to Resolution No. 778.)  
384 Ukraine's panel request, section II.B., pp. 3 -4. 
385 Resolution No. 778 is amended by the following resolutions of the Government of the 
Russian  Federation: (a) Resolution No. 830 , (Exhibit UKR -11); (b) Resolution No. 625, ( Exhibit UKR -12); 
(c) Resolution  No. 842, (Exhibit UKR -13); (d) Resolution No. 981, (Exhibit UKR -14); (e) Resolution No. 1397, 
(Exhibit UKR -15); (f) Resolution  No. 157, (Exhibit UKR -16); (g) Resolution No. 472, (Exhibit UKR -17); 
(h) Resolution No. 608, (Exh ibit UKR -18); (i) Resolution  No. 897, (Exhibit UKR -19); (j) Resolution No. 1086, 
(Exhibit UKR -20); and (k) Resolution No. 790, (Exhibit UKR -70).   
386 Ukraine's panel request, section III.A., p. 4.  
387 Ibid. p. 5. Ukraine's panel request identifies the followi ng legal instruments through which Russia 
imposes these measures: Veterinary Instruction, (Exhibits UKR -21, RUS -10); Instruction No. FS -AS-3/22903 of 
the Rosselkhoznadzor  dated 21 November 2014, (Plant Instruction), (Exhibits UKR -22, RUS -11); and any 
additional measures that prolong, replace, amend, implement, extend or apply these measures, as well as other 
related measures.  (Ukraine's panel request, section III.A., p. 5.)  
388 Ibid. 
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countries in Central/Eastern Asia and Caucasus through the territory of the 
Russian  Federation, including measures that implement, complement, add to, apply, 
amend or replace any of the measures mentioned in section II.A. or  section III.A ".389 
The introductory words to this sub -category of the panel request indicate that this 
sub-category is necessitated by Russia's alleged "fundamental lack of transparency 
concerning some of the measures at issue" and "failure to observe the t ransparency and 
publication obligations" under the GATT 1994 and its Accession  Protocol.390 
7.270.   With respect to the "legal basis of the complaint" for the second group of measures so 
identified, section III.B of Ukraine's panel request states that these measures  are inconsistent with 
a number of provisions of Articles V, XI:1 and X of the GATT 1994, along with various paragraphs 
of Russia's  Working Party Report , as incorporated into Russia's Accession Protocol by reference .391 
In addition to identifying the claims of WTO -inconsistency, this section of Ukraine's panel request 
provides a brief explanation as to why the measures in question are considered inconsistent with 
the cited provisions of the covered agreements.  
7.7.1.2   Presentation of the measures and claims in Ukraine's first written submission  
7.271.   In section IV of its first written submission, Ukraine presents four "categories" of measures, 
as opposed to the arrangement under two "groups of measures" in its panel request.392 The four 
categories of measures in section  IV of Ukraine's first written submission  (and the terminology 
chosen by the Panel to describe these categories of measures)  are: 
a. "2016 general transit ban and other transit restrictions" (the 2016 Belarus Transit 
Requirements ); 
b. "2016 product -specific tran sit ban and other transit restrictions" (the 2016 Transit Bans 
on Non -Zero Duty and Resolution No. 778 Goods ); 
c. "De facto application of the 2016 general and product -specific transit bans in Decree  No. 1, 
as amended, to traffic in transit destined for Mongo lia, Tajikistan, Turkmenistan and 
Uzbekistan" (the de facto measure ); and  
d. "2014 transit bans and other transit restrictions" (the 2014 Belarus -Russia Border Bans  
on Transit of Resolution No. 778 Goods ).393 
7.272.   Ukraine considers that the first category of measures, which the Panel refers to as the 2016 
Belarus Transit Requirements , corresponds fully to the measures identified in section II.A. of 
Ukraine's  panel  request as the requirements that international cargo  transit by road and rail from 
the territory of Ukraine destined for the territories of the Republic of Kazakhstan and the 
Kyrgyz  Republic, through the territory of Russia, be carried out exclusively from the territory of 
Belarus, and comply with a number of additional conditions  related to identification seals and 
registration cards  at specific permanent or mobile checkpoints .394 
7.273.   The second category of measures, which the Panel refers to as the 2016 Transit Bans on 
Non-Zero Duty and Resolution  No. 778 Goods , Ukraine considers to correspond fully to the measures 
identified in section II.A. of Ukraine's panel request as the ban on all road and rail transit of : (a) 
goods that are subject to non -zero import duties according to the Common Customs Tariff of the 
EaEU, and (b) goods that fall within the scope of the import ban s imposed by Resolution No. 778 , 
including the exceptional derogation procedure for such goods .395 
7.274.   The third category of measures, the de facto measure , Ukraine considers  to correspond to 
the measu res identified in the second sub -category of the second group of measures in section III.A. 
                                                
389 Ukraine's panel request, section III.A., p. 5.  
390 Ibid. 
391 Ibid. section III.B., pp. 5 -6. 
392 Ukraine's first written submission, section IV, entitled "The measures at issue".  
393 Ibid. para. 54.  
394 Ukraine's response to Panel question No. 1 after the first meet ing of the Panel, para. 63.  
395 Ibid. 
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of Ukraine's  panel request, namely, "restrictions on the traffic in transit from the territory of Ukraine 
through the territory of the Russian Federation to countri es in Central and Eastern Asia and Caucasus 
other than the Republic of Kazakhstan and the Kyrgyz Republic by de facto applying Decree No. 1 
and Resolution No. 1 to transit from the territory of Ukraine to third countries other than the 
Republic  of Kazakhst an and the Kyrgyz Republic ".396  
7.275.   The fourth category of measures, which the Panel refers to as the 2014 Belarus -Russia 
Border Bans on Transit of Resolution No. 778 Goods , Ukraine considers  to correspond to the 
measures identified in the first sub -category of the second group of measures in section III.A of 
Ukraine's panel request, namely, the 2014  prohibitions on the "transit of goods subject to veterinary 
and phytosanitary surveillance and  which are included in the list approved by Resolution … No. 778 
… through the checkpoints of the Republic  of Belarus", along with special checkpoint and permit 
requirements for such goods destined for Kazakhstan and other countries.397  
7.276.   In section V of its first written submission, Ukraine presents its arguments of 
WTO-inconsistency of each of the categories of measures.398 This discussion is arranged on the basis 
of the claims of inconsistency with : (a) Article V of the GATT 1994 and paragraph 1161 of 
Russia' s Working  Party Report; (b) Articles X:1 and X:2 of the GATT 1994 and paragraphs 1426, 
1427 and 1428 of Russia's Working Party Report; and (c) Article X:3(a) of the GATT 1994.399 Within 
the discussion of the claims of inconsistency with the specific provisio ns (and subparagraphs of those 
provisions), Ukraine discusses serially the relevant categories of measures alleged to infringe the 
specific provisions.400  
7.7.2   Whether Ukraine's panel request satisfie s the requirements of Article 6.2 of the DSU  
7.277.   The relevant port ion of Article 6.2 of the DSU reads:  
The request for the establishment of a panel shall be made in writing. It shall indicate 
whether consultations were held, identify the specific measures at issue and provide a 
brief summary of the legal basis of the com plaint sufficient to present the problem 
clearly.  
7.278.   Article 6.2 of the DSU has two distinct requirements, namely: (a) the identification of the 
specific measures at issue; and (b) the provision of a brief summary of the legal basis of the 
complaint.401 Article  6.2 defines the scope of the dispute between the parties, thereby establishing 
and delimiting the panel's jurisdiction and serving the due process objective of notifying the 
respondent, and the third parties, of the nature of the case.402 Moreover, in order  to "present the 
problem clearly", within the meaning of Article 6.2, a panel request must "plainly connect" the 
challenged measure(s) with the provision(s) claimed to have been infringed so that a respondent 
can "know what case it has to answer, and … beg in preparing its defence ".403 Compliance with the 
requirements of Article 6.2 of the DSU must be demonstrated on the face of the panel request. 
Consequently, defects in the panel request cannot be cured by the subsequent submissions of the 
parties.404 
                                                
396 Ukraine's response to Panel question No. 1 after the first meeting of the Panel, paras. 43 and 63.  
397 Ibid. para. 63.  
398 Ukraine's first written submission, section V, entitled "WTO -inconsistency of the measures at issue".  
399 Ukraine did not pursue its claims under Article XI:1 of the GATT 1994 in its first written submission.  
400 Ukraine's first written submission, para. 156 et seq . 
401 As the Appellate Body has held in previous disputes, these two requirements constitute the "matter 
referred to the DSB", which forms the basis of a panel's terms of reference under Article 7.1 of the DSU. 
(Appellate Body Reports, US – Countervail ing and Anti -Dumping Measures (China ), para. 4.6; and 
Argentina  – Import Measures , para. 5.39.)  
402 Appellate Body Reports, US – Countervailing and Anti -Dumping Measures (China ), para. 4.6; and 
Argentina – Import Measures , para. 5.39.  
403 Appellate Body Report , US – Oil Country Tubular Goods Sunset Reviews , para. 162. (fns omitted)  
404 Nevertheless, subsequent submissions, such as the complainant's first written submission, may be 
consulted to the extent that they may confirm or clarify the meaning of the words u sed in the panel request. 
(Appellate Body Reports, US – Countervailing and Anti -Dumping Measures (China ), para. 4.9; 
Argentina  – Import Measures , para. 5.42; and US – Carbon Steel , para. 127 .) WT/DS512/R  
 
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7.279.   In what follows, for each of the measures identified in Ukraine's panel request in the first 
and second groups of measures, the Panel determines whether the identification of the measures 
and claims satisfies the requirements of Article 6.2.  
7.7.2.1   First group of measur es – identification of the specific measures at issue and the 
legal basis of the complaint  
7.280.   Section II.A. of Ukraine's panel request identifies the following measures:  
a. Requirements that international cargo transit by road and rail from the territory of Ukra ine 
destined for the territories of the Republic of Kazakhstan or the Kyrgyz Republic, through 
the territory of Russia, be carried out exclusively from the territory of Belarus, and comply 
with a number of additional conditions  related to identification seals and registration cards  
at specific permanent or mobile checkpoints . 
b. A ban on all road and rail transit of : (i) goods that are subject to non -zero import duties 
according to the Common Customs Tariff of the EaEU, and ( ii) goods that fall within the 
scope of the import ban imposed by Resolution No. 778.  
7.281.   The specific measures within this group appear to be connected by the fact that they are 
implemented through a common set of legal instruments, namely, Decree No. 1, and 
Decree  No. 319, which amended Decre e No. 1 in material respects.405  
7.282.   The Panel considers that the identification of each of the measures within the first group of 
measures in section II.A. satisfies the requirements of Article 6.2 of the DSU.  
7.283.   Russia contends that the legal basis for the compl aint in respect of the above -mentioned 
measures is provided only in respect of the group of measures, rather than for each of the measures 
within the group.406 Russia does not explain why it reads Ukraine's panel request in this manner and 
the Panel  does not share that reading.  The opening words of section II.B. of Ukraine's panel request, 
entitled "Legal Basis for the Complaint", read: "Ukraine considers that the measures identified in 
section II.A. are inconsistent with the following WTO provisions ". Ukraine's use of the term "the 
measures" rather than "group of measures" makes clear that the claims of WTO -inconsistency that 
follow are made in relation to each of the measures within the first group of measures identified in 
section II.A. of Ukraine's pan el request.  
7.284.   The Panel therefore considers that the panel request adequately describes the legal basis of 
the complaint in relation to the measures identified within the "first group of measures" for each of 
the claims made in section II.B. of Ukraine's pa nel request.  
7.7.2.2   Second group of measures – identification of the specific measures at issue and 
the legal basis of the complaint  
7.285.   As previously noted407, the measures identified in the second group of measures in 
section  III.A. of Ukraine's  panel  request comprise:  
a. 2014 prohibitions on transit, from Ukraine across the territory of Russia and  through 
checkpoints of the Republic of Belarus, of goods that are subject to veterinary and 
phytosanitary surveillance and that fall within the  scope of the import bans imposed by 
Resolution No. 778, along with requirements that the transit of any such goods destined 
for Kazakhstan and other third countries occur on the basis of permits issued by the 
appropriate Kazakh or Russian veterinary and p hytosanitary surveillance authorities and 
through designated  checkpoints ;  
                                                
405 See para. 7.267 above.  
406 Russia's second written submission, para. 10.  
407 See para. 7.269 above.  WT/DS512/R  
 
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b. the "de facto application of Decree No. 1 and Resolution No. 1 to transit from the territory 
of Ukraine to third countries other than the Republic of Kazakhstan and the 
Kyrgyz  Repub lic"; and  
c. related transit measures that implement, complement, add to, apply, amend or replace 
any of the measures identified in both sections II.A and III.A. of Ukraine's  panel  request, 
of which Ukraine may not be aware owing to Russia's alleged failure to comply with its 
transparency and publication obligations.  
7.286.   The Panel agrees with Russia that it is difficult to discern a relationship among the measures 
within this second group that would warrant them being grouped together, especially since the 
third sub-category of measures (in item c. above) also covers measures related to those within the 
first group of measures in section II.A. of the panel request. However, Ukraine's decision to group 
these measures together in its panel request does not of itself  render the identification of the 
measures unclear.  
7.287.   The Panel next considers whether the identification of the measures within each 
sub-category of the second group of measures in section III.A. of Ukraine's panel request satisfies 
the requirements of Art icle 6.2 of the DSU.  
7.7.2.2.1   First sub -category of measures  
7.288.   The first sub -category of the second group of measures (item a. in paragraph  7.285 above) 
are prohibitions, put in place in November 2014, on transit from Ukraine across Russia, through 
checkpoints in Bel arus, of goods subject to veterinary and phytosanitary surveillance and that are 
subject to the import ban implemented by Resolution No. 778, along with related requirements that  
the transit of any  such goods destined for Kazakhstan or other third countrie s occur through 
designated Russian checkpoints and that all such goods be subject to clearance and on the basis of 
permits issued by the appropriate Russian or Kazakh veterinary and phytosanitary surveillance 
authorities. Specifically,  Ukraine challenges t hese measures as they affect transit from the territory 
of Ukraine  through the territory of Russia.408 
7.289.   The Panel concludes that Ukraine's panel request clearly identifies the first sub -category of 
the second group of measures.  
7.7.2.2.2   Second sub -category of measures  
7.290.   In its panel request, Ukraine describes the measure in item b. in paragraph  7.285 above as 
the de facto application of "Decree No. 1 and Resolution No. 1 to transit from the territory of Ukraine 
to third countries other than the Republic of Kazakh stan and the Kyrgyz Republic ". The Panel refers 
to this measure as the " de facto  measure" in the remainder of this discussion.  
7.291.   At the Panel's request, the parties engaged specifically on whether the identification of the 
de facto  measure in Ukraine's pane l request satisfied the requirements of Article 6.2 of the DSU.409 
Therefore, although the Panel is addressing this issue in the context of evaluating Russia's more 
general objection that none of the measures or claims was sufficiently precisely identified, it is 
necessary to refer to arguments that the parties made more specifically about the de facto  measure.  
                                                
408 See the first sentence in section III.A. of Ukraine's panel request, and the underscored sentence 
prior to the paragraph beginning " Second " in section III.A. of Ukraine's panel request. (Ukraine's panel 
request, pp. 4 -5.) 
409 The Panel raised this issue on its own motion, through a question that it posed to the parties in 
advance of the first meeting. (See Communication to the parties, "Request for discussion of specific issues to 
be included in the parties' oral statements", dated 12 January 2018, Question No. 2.) The Appellate Body has 
previously referred to the widely accepted rule that an international tribunal is entitled to consider the issue of 
its own jurisdiction on its own initiative, and to satisfy itself that it has jurisdiction in any dispute tha t comes 
before it. (Appellate Body Reports, US – 1916 Act , para. 54 and fn 30 thereto; Mexico – Corn Syrup 
(Article  21.5 – US), para. 36; and EC and certain member States – Large Civil Aircraft , para. 791; and 
Panel  Reports, US – Anti-Dumping Measures on O il Country Tubular Goods , paras. 7.19 -7.20; 
EC – IT Products , para.  7.196; China  – Broiler Products , para. 7.515; and US – Large Civil Aircraft (2nd 
complaint) (Article 21.5 – EU), para.  7.358.)  
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7.7.2.2.2.1   Arguments of Russia  
7.292.   Russia argues that Ukraine's description of the de facto  measure in its panel request is 
insufficiently clear  for purposes of Article 6.2 of the DSU.410 Russia considers that it is not possible 
to determine the geographical scope of application of the de facto  measure from the reference in 
the panel request to "countries in Central and Eastern Asia and Caucasus other than the 
Republic  of Kazakhstan", taking into account the number of countries covered by such a 
description.411 In addition, the description of the de facto  measure in the second sub -category of the 
second group of measures (set forth in paragraph 7.26 9.b above), in combinat ion with the third 
sub-category of the second group of measures (set forth in paragraph 7.26 9.c above) does not 
enable the respondent to discern whether the measure is written or unwritten, or whether it is being 
challenged on an "as such" or "as applied" basis.412 Russia considers that the measure in question 
constitutes "an imprecise open -ended list with the possibility for the claimant to put any new element 
on the table".413 
7.7.2.2.2.2   Arguments of Ukraine  
7.293.   Ukraine argues that the measure that it challenges, which it d escribes in its first written 
submission as the "de facto application of the 2016 general and product -specific transit bans in 
Decree No. 1, as amended, to traffic in transit destined for Mongolia, Tajikistan, Turkmenistan and 
Uzbekistan" was identified in  its panel request in a manner that satisfies the requirements of 
Article  6.2 of the DSU.414 Ukraine argues that there is no requirement under Article 6.2 of the DSU 
to identify in a panel request whether a measure is written or unwritten, or is challenged o n an "as 
such" or "as applied" basis.415 Moreover, the measure as described in the second sub -category of 
the second group of measures (in section III.A. of the panel request) is clearly distinct from the 
general and product -specific transit bans and other r estrictions identified in the first group of 
measures in section II.A. of the panel request.416 According to Ukraine, the measure described in 
the second sub -category of the second group of measures in section III.A. of the panel request, 
through the phrase "by de facto applying Decree No. 1 and Resolution No. 1 to transit from the 
territory of Ukraine to third countries other than the Republic of Kazakhstan and the Kyrgyz  Republic" 
was clearly identified as a distinct measure comprising "the application in f act of the measures 
introduced by Decree No. 1 and Resolution No. 1 to traffic in transit destined for territories other 
than those covered by Decree No. 1 and Resolution No. 1 ".417  
7.294.   Ukraine also rejects the argument that the reference in the panel request t o the legal 
instruments in question being applied to transit destined for territories in "Central and Eastern Asia 
and the Caucasus other than the Republic of Kazakhstan and the Kyrgyz Republic" amounts to an 
"open -ended list" of measures that fails to mee t the requirements of Article 6.2 of the DSU.418 
In Ukraine's view, on the basis of the United Nation's definitions of the regions in question, the 
geographical specification in the second sub -category of the second group of measures identified in 
section II I.A. of the panel request clearly referred to traffic destined for "Tajikistan; Turkmenistan; 
Uzbekistan; China; Hong Kong China; Macao, China; Chinese Taipei; the  Democratic  People's 
Republic of Korea; Japan; Mongolia; the Republic of Korea; Georgia; Azer baijan; and Armenia ".419 
                                                
410 Russia's opening statement at the first meeting of the Pan el, para. 23.  
411 Ibid. para. 22. See also Russia's second written submission, paras. 14 -15. 
412 Russia's opening statement at the first meeting of the Panel, para. 22.  
413 Ibid. See also Russia's opening statement at the second meeting of the Panel, para. 13.  
414 Ukraine's opening statement at the first meeting of the Panel, para. 53; and response to Panel 
question No. 1 after the first meeting of the Panel, para. 12.  
415 Ukraine's response to Panel question No. 1 after the first meeting of the Panel, para. 45.  
416 Ibid. para. 49.  
417 Ukraine's response to Panel question No. 1 after the first meeting of the Panel, para. 51.  Ukraine 
argues that, contrary to Russia's understanding, "the matter before the Panel includes the de facto  application 
of Decree No. 1 and Resoluti on No. 1, and thus the restrictions on traffic in transit imposed by both 
instruments" and not "any measure affecting traffic in transit from the territory of Ukraine to countries in 
Central/Eastern Asia and Caucasus". (Ukraine's opening statement at the s econd meeting of the Panel, 
para. 24.) 
418 Ukraine's response to Panel question No. 1 after the first meeting of the Panel, paras. 58 -60. 
See also Ukraine's opening statement at the second meeting of the Panel, para. 24.  
419 Ukraine's response to Panel questi on No. 1 after the first meeting of the Panel, paras. 59 -60; and 
Map of Central Asia, Map of the Caucasus and Central Asia, and the UN Classification of Countries by Region, 
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This is not an open -ended list, and the fact that Ukraine elected, in its first written submission, to 
demonstrate the existence  of the measure with respect to transit destined for a subset of those 
destinations, does not affect the conclusion that the geographical specification in the panel request 
was not open  ended.420  
7.7.2.2.2.3   Analysis  
7.295.   Section III.A. of Ukraine's panel request identifies the de facto  measure in the following 
manner:  
[R]estrictions on the traffic in transit from the territor y of Ukraine through the territory 
of the Russian Federation to countries in Central and Eastern Asia and Caucasus other 
than the Republic of Kazakhstan and the Kyrgyz Republic  by de facto applying 
Decree  No. 1 and Resolution No. 1 to transit from the terr itory of Ukraine to third 
countries other than the Republic of Kazakhstan and the Kyrgyz Republic.421 
7.296.   This identification refers explicitly to transit restrictions that arise out of the application of 
Decree No. 1 and Resolution No. 1. The transit restrictio ns effected through Decree No. 1 and 
Resolution No. 1 are described in the first three paragraphs of section II.A. of Ukraine's panel 
request, and concern the requirements that international cargo transit by road and rail from the 
territory of Ukraine dest ined for the territory of Kazakhstan, through the territory of Russia, be 
carried out exclusively from the territory of Belarus, and comply with a number of additional 
conditions related to identification seals and registration card s at specific control po ints. 
7.297.   Before evaluating the description of the de facto  measure in Ukraine's panel request, the 
Panel recalls the level of scrutiny that panels must apply in determining whether a panel request 
meets the specificity requirement under Article 6.2 of the DSU. The Appellate Body has stated that 
the identification  of the specific measures at issue, pursuant to Article 6.2, is different from a 
demonstration of the existence of such measures, which would require that a complainant present 
relevant arguments and evidence in its submissions.422 While a measure cannot be identified without 
some indication of its contents, the identification of a measure within the meaning of Article 6.2 
need only be framed "with sufficient particularity so as to indicate the nature of the measure  and 
the gist of what is at issue ".423 Thus, a ccording to the Appellate Body, an examination regarding the 
specificity of a panel request does not entail substantive consideration as to what types of measures 
are susceptible to challenge in WTO dispute settlement.424 
7.298.   The standard outlined above was deve loped by the Appellate Body in US – Continued Zeroing  
in the process of reversing the panel's finding in that dispute that an examination of the specificity 
of a panel request would  entail a consideration of the types of measures susceptible to 
WTO dispute  settlement. The panel had found that the panel request did not satisfy the requirement 
in Article 6.2 to identify the specific measures at issue because it failed to "demonstrate t he existence 
and the precise content of the purported measure" and because "the continued application" of 
anti-dumping duties resulting from 18 anti -dumping duty orders did not constitute a measure for 
the purposes of WTO dispute settlement proceedings.425 The Appellate  Body considered that the 
panel request had sufficiently linked together the following three elements in seeking to identify the 
measures at issue426: 
                                                
Income Group, and Subregion of the World , (The Regions of Central Asia, Eastern As ia and Caucasus), 
(Exhibit  UKR-102). 
420 Ukraine's response to Panel question No. 1 after the first meeting of the Panel, para. 61.  
421 Ukraine's panel request, section III.A., p. 5.  
422 Appellate Body Report, US – Continued Zeroing , para. 169.  
423 Ibid. (emphasis added)  
424 Ibid. 
425 Ibid. para. 167 (quoting Panel Report, US – Continued  Zeroing , para. 7.56).  
426 Ibid. para. 166.  
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a. The panel request made "explicit reference" to the duties at issue, imposed through 
18 anti-dumping duty orders, each on a "specific product" exported from "a specific 
country"427;  
b. The panel request indicated that the complainant was challenging the "continued 
application" of the anti -dumping duties pursuant to certain administrative proceedings428; 
and 
c. The panel request stated that the duties at issue were calculated at levels "in excess of 
the anti -dumping margin which would result from the correct application of the 
Anti-Dumping Agreement ". The complainant stated specifically in its panel request tha t 
the respondent's investigating authority "systematically" used the zeroing methodology in 
all types of reviews pertaining to anti -dumping duties and relied on margins calculated 
with the zeroing methodology in sunset reviews.429  
7.299.   The Appellate Body conclud ed that, with these three elements, taken together, the 
respondent could reasonably have been expected to understand that the complainant was 
challenging the continued application of the zeroing methodology in successive proceedings, through 
each of the 18  anti-dumping duty orders.430  
7.300.   Given these facts, the Panel understands the panel request in US – Continued Zeroing to 
have identified the measures at issue "with sufficient particularity so as to indicate the nature of the 
measure  and the gist of what is at  issue" because it explicitly: (a) provided an indication that the 
measure was applied to determine the duties imposed on products from "specific countr[ies]"; 
(b) identified the unwritten measure at issue (i.e. the zeroing methodology); (c) specified the basis 
on which the measure was challenged (i.e. "the continued application of … anti -dumping duties" 
according to the zeroing methodology and the "systematic[]" use of the zeroing methodology); and 
(d) identified the legal instruments in which that methodo logy was used (i.e. "18 anti -dumping duty 
orders").  
7.301.   Reading the standard developed by the Appellate Body in US – Continued Zeroing as tied to 
the precise aspects of the panel request in that dispute, the Panel does not consider that 
Ukraine's  identificati on of the de facto measure in its panel request satisfies Article 6.2 of the DSU. 
As the Panel will explain further below, the panel request in this dispute does not identify with 
sufficient precision: (a)  the destinations of the goods  that are subject to the de facto measure , 
(b) the nature of the de facto measure as an unwritten  measure , (c) the nature of the de facto  
measure as a single  measure , (d) the " as such " character of its challenge concerning the de facto 
measure , and (e) the legal instruments  underpinning the de facto measure. These aspects of 
Ukraine's panel request, taken together, lead to the conclusion that Ukraine has not identified the 
de facto  measure with requisite sufficient particularity.  
7.302.   In the present dispute, the de facto  measure is described as involving the application of the 
restrictions in Decree No. 1 and Resolution No. 1, to traffic in transit from Ukraine, for third -country 
destinations in Central and Eastern Asia and Caucasus , other than Kazakhstan and the 
Kyrgyz  Republic. Ukraine considers that the regions of Central Asia, East ern Asia and the Caucasus 
cover  the following countries: Tajikistan; Turkmenistan; Uzbekistan; China; Hong Kong, China; 
Macao , China ; Chinese Taipei; the D emocratic People's Republic  of Korea; Japan; Mongolia; 
the Republic of Korea; Georgia; Azerbaijan; and Armenia.431 In support , Ukraine submits : 
(a) a UN map of Central Asia that identifies the countries of Kazakhstan, the Kyrgyz Republic, 
                                                
427  Appellate Body Report, US – Continued Zeroing , para. 165. The 18 anti -dumping duty orders at 
issue were also listed in the a nnex to the European Communities' panel request, and a citation was included for 
each order. (Ibid.)  
428 Ibid. 
429 Ibid. The complainant also stated in its panel request that it "ha[d] identified in the annex to this 
request a number of anti -dumping orders whe re duties are set and/or maintained on the basis of the 
above -mentioned zeroing practice or methodology with the result that duties are paid by importers … in excess 
of the dumping margin which would have been calculated using a WTO consistent methodology" . (Ibid.)  
430 Ibid. para. 166.  
431 Ukraine's response to Panel question No. 1 after the first meeting of the Panel, para. 60; and The 
Regions of Central Asia, Eastern Asia and Caucasus, ( Exhibit UKR -102). 
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Tajikistan, Turkmen istan a nd Uzbekistan as "Central Asia"432; (b) a map of "the Caucasus and 
Central Asia" produced by the U.S. Central Intelligence Agency that identifies, in addition to the 
Central Asian countries identified in the UN map, the countries of Georgia, Armenia a nd 
Azerbaijan433; and (c)  excerpts from a publication of the Population Division of the UN Department 
of Economic and Social Affairs that classifies countries by region, income group and sub region. In 
that publication, the region of "East ern Asia" is classi fied to cover China; "China, Hong Ko ng [special 
administrative region]"; "China, Macao [special administrative region]"; "China, Taiwan  Province of 
China" ; "the Democratic People's Republic of Korea "; "Japan "; "Mongolia " and the "Republic of 
Korea ".434 That publication also identifies Kazakhstan, the Kyrgyz Republic, Tajikistan, Turkmenistan 
and Uzbekistan as being part of "Central Asia" , which is classified, al ong with countries in 
"Southern  Asia", as part of "South -Central Asia ".435 However, there is no reference in this publication 
to the region referred to as "the Caucasus ". Rather, the countries of Armenia, Azerbaijan and  Georgia 
are presented as part of "Western Asia", along with Turkey, Cypr us, Iraq and the various Gulf States 
and countries of the Middle East.  
7.303.   On the basis of  the maps submitted by Ukrain e, it appears that the countries included within 
the regions of "Central Asia, Eastern Asia and the Caucasus" cover  those that share land bor ders 
with Russia  to the Southeast (Geo rgia and Azerbaijan), and to the East (Chin a, Mongolia and 
North  Korea),  as well as those that share land borders with Kazakhstan. Indeed, aside from Ukraine 
and Belarus, the only countries w ith which Russia shares land borders that would be  specifically 
excluded fr om the geographical scope of the de facto  measure , as identified in Ukraine's panel 
request, are the European Union (Estonia, Finland, Latvia, Lithuania and Poland)  and Norway .  
7.304.   Transit measures by their nature apply to goods that fall  within the  definition of "traffic in 
transit" under Article  V:1 of the GATT 1994.436 Owing to the requirement that the passage of such 
traffic in transit across the territory of a Member begin and end in a territory other than the territory 
of that Member, the destina tion of the goods in question is ordinarily an important component of a 
transit measure.437 Moreover, when a Member alleges that a transit measure is in fact  being applied 
to traffic in transit destined for countries other than those set forth in the measure  itself, and that 
this application constitutes a separate, unwritten transit measure, it is even more important that the 
destinations in question be precisely identified.438  
7.305.   Given the nature of the measure as a transit measure, which is unwritten and consis ts of 
the de facto  application of a written measure that applies to transit destined for two countries, to 
what appears to be potentially as many as 15 countries in regions as large and diverse as " Central 
and Eastern Asia and Caucasus other than the Repub lic of Kazakhstan and the Kyrgyz  Republic", the 
                                                
432 The Regions of Central Asia, Eastern Asia and Caucasu s, (Exhibit UKR -102), p. 2. (pagination of PDF 
file) 
433 Ibid. p. 3. (pagination of PDF file)  
434 Ibid. p. 5. (pagination of PDF file)  
435 Ibid. (pagination of PDF file)  
436 Article V:1 of the GATT 1994 provides that "[g]oods … shall be deemed to be in transit acr oss the 
territory of a contracting party when the passage across such territory, with or without trans -shipment, 
warehousing, breaking bulk, or change in the mode of transport, is only a portion of a complete journey 
beginning and terminating beyond the fr ontier of the contracting party across whose territory the traffic 
passes."  
437 This is particularly so when a complainant brings a claim under the second sentence of Article V:2 of 
the GATT 1994, which provides that "[n]o distinction shall be made which is based on … the place of … 
destination."  
438 In EC and certain member States – Large Civil Aircraft , the Appellate Body explained that, because 
the very existence and precise contours of a measure that is unwritten may be uncertain, complainants are 
expected to identify such measures in their panel requests as clearly as possible.  (Appellate Body Report, 
EC and certain member States – Large Civil Aircraft , para. 792.) In this appeal, the Appellate Body concluded, 
on its own motion, that the United States' chal lenge to an unwritten LA/MSF programme was not identified as a 
specific measure in the United States' panel request and was therefore outside the panel's terms of reference.  
The Appellate Body considered that the references in the United States' panel requ est to individual provisions 
of LA/MSF could not, at the same time, be read to also refer to a distinct measure consisting of an unwritten 
LA/MSF Programme.  (Appellate Body Report, EC and certain member States – Large Civil Aircraft , paras. 790, 
792 and 79 5.) 
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Panel has serious doubts as to whether Russia would have been able to understand the nature of 
the measure and the gist of what was at issue.439 
7.306.   Ukraine argues that the reference in its panel request to the countries in Central and 
Eastern  Asia and Caucasus other than those of the Republic of Kazakhstan and the Kyrgyz Republic 
is not an "open -ended list", but a clear reference to Tajikistan; Turkmenistan; Uzbekistan; China; 
Hong Kong, China; Chinese Taipei; the Democratic People's Republic of Korea; Japan; Mongolia; the 
Republic of Korea; Georgia; Azerbaijan; and Armenia.440 Ukraine states that Mongolia, Tajikistan, 
Turkmenistan and Uzbekistan are part of the " countries in Central and Eastern Asia and Caucasus", 
and that the reference to these countries in its first written submission thus confirms the wording 
used in its panel request.441 The Panel agrees with Ukraine that it was free, in its first written 
submission, to elect to show the existence  of the de facto measure with respect to transit destined 
for only a subset of countries that it had previously clearly identified in its panel request. However, 
the present issue involves the question of whether the superset of destination countries that 
compri ses the de facto measure was sufficiently clearly identified in the panel request in the first 
place. The reference to " countries in Central and Eastern Asia and Caucasus" in Ukraine's panel 
request operates more like a placeholder for countries that Ukrai ne would later specify in its 
first written submission. This vagueness in the description of the destination countries in the 
panel  request renders the identification of the de facto measure insufficiently precise to meet the 
requirements of Article 6.2 of  the DSU.  
7.307.   Additionally, the Panel notes that  Ukraine's panel request does not explicitly state whether 
the de facto  measure identified in the second sub -category of the second group of measures in 
section  III.A. of its panel request is: (a) an unwritten m easure, (b) a single measure (as opposed to 
multiple measures), or (c) being challenged on an "as such" basis. Those aspects of the measure 
and the way it is being challenged are not clarified until Ukraine's first written submission. 
Ukraine's  panel reque st identifies the de facto  measure by noting that Russia "imposes restrictions" 
on traffic in transit "by de facto applying  Decree No. 1 and Resolution No. 1 to transit from the 
territory of Ukraine to third countries other than the Republic of Kazakhstan and the 
Kyrgyz  Republic ". The use of the terms "restrictions" and "de facto applying" could reas onably be 
interpreted to mean that  Ukraine challenges  individual instances of the de facto application  of 
Decree  No. 1 and Resolution  No. 1. It is not until Ukr aine's first wri tten submission that it becomes 
apparent  that Ukraine challenges a single, unwritten measure  (consisting of the de facto application 
of Decree No.  1 as amended, beyond the scope of its explicit terms)  on an "as  such" basis.  
7.308.   The omission of the "as such" character of Ukraine's challenge concerning the de facto 
measure is particularly important considering  the Appellate Body' s statements in US – Oil Country 
Tubular Goods Sunset Reviews . In that dispute, the Appellate Body urged complainants to be 
"especially diligent " in setting out "as such" claims in their panel requests "as clearly as possible ".442 
The Appellate Body added th at it would expect that "as such" claims "state unambiguously" the 
specific measures of municipal law challenged by the complainant and the legal basis for the 
allegation that those measures are WTO -inconsistent. Through "such straightforward presentations  
of 'as such' claims", panel requests should leave respondents "in little doubt" that another Member 
intends to challenge those measures "as such ".443  
                                                
439 The Panel notes that other panels have found measures to be insufficiently specified for purposes of 
Article 6.2 of the DSU where they were described too broadly in a panel request. For example, in 
Australia  – Apples , New Zealand's panel request referred to both "measures specified in and required by 
Australia pursuant to the Final import risk analysis report for apples from New Zealand " and, "in particular" to  
a list of 17 requirements spelled  out in the report and id entified in the panel request through bullet points. 
(Panel Report, Australia – Apples , para. 7.1446.) The panel found that "given the length and complexity of 
Australia's [report] ", the broad reference in New  Zealand's panel request to "measures specified  in and 
required by Australia pursuant to the [ report ]" failed to satisfy the requirement of sufficient clarity in the 
identification of the specific measures at issue set forth in Article 6.2 of the DSU.  (Ibid. para. 7.1449.)  
440 Ukraine's response to Pane l question No. 1 after the first meeting of the Panel, paras. 58 -60. See 
also Ukraine's opening statement at the second meeting of the Panel, para. 24.  
441 Ukraine's response to Panel question No. 1 after the first meeting of the Panel, para. 62.  
442 Appellat e Body Report, US – Oil Country Tubular Goods Sunset Review s, para. 173. 
(emphasis  original)  
443 Ibid.  
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7.309.   Although the Appellate Body upheld the panel's finding in that dispute that the measure at 
issue was ident ified with sufficient precision pursuant to Article 6.2 of the DSU, the Appellate Body 
did so on the specific basis that: (a) the panel request explicitly stated that it was challenging the 
"irrefutable presumption" found in "US law as such "444; (b) the word ing and logic of the panel request 
demonstrated that the complainant would establish the WTO -inconsistency of the specific US legal 
provisions embodying the "irrefutable presumption"445; and (c) the relevant measure was listed 
under a shared heading with oth er "as such" claims, so such a heading could not have been limited 
to "as applied" claims.446  
7.310.   In the present dispute, the panel request does not specify the "as such" challenge concerning 
the de facto measure in such a manner. First, as stated above, the pa nel request does not specify 
the "as such" nature of Ukraine's challenge concerning the de facto  measure. Second, the wording 
of the relevant section of Ukraine's panel request, as reproduced in paragraph  7.295 above, does 
not suggest whether Ukraine aims to establish the WTO -inconsistency of the de facto measure as a 
measure of general and prospective application or as individual instances of application. Third, the 
heading for section III.A. of the panel request, entitled "The Measures at Issue", and the descriptions 
of the measures above and below the de facto  measure, do not indicate whether Ukraine intended 
to challenge any other measures on an "as such" basis.  
7.311.   Finally, the Panel observes that the de facto  measure is identified in Ukraine's panel reques t 
as comprising the de facto  application of one set of legal instruments (Decree No. 1 and 
Resolution  No. 1), while it is described in Ukraine's first written submission as comprising the 
de facto application of a different set of legal instruments (Decree No. 1, as amended ). Decree  No. 1 
"as amended" can be understood to mean Decree No. 1 as amended by Decree  No. 319. 
Decree  No. 319 introduced amendments to Decree No. 1, effective as of 1 July 201 6, to 
(a) extend  the requirement that all international cargo transit by road and rail from Ukraine destined 
for Kazakhstan enter Russia via Belarus and be subject to additional conditions related to 
identification seals and registration card s, to internat ional cargo transit by road and rail destined  for 
the Kyrgyz Republic; and (b) impose a ban on road and rail transit of goods that are subject to non -
zero import duties according to the Common Customs Tariff of the EaEU, as well as goods falling 
within the  scope of the import bans imposed by Resolution No. 778.   
7.312.   Ukraine did not refer to Decree No. 319 in the section of its panel request that identifies the 
de facto  measure.  The Panel considers that the failure to refer specifically to Decree No. 319 in the  
identification of the de facto  measure in the second group of measures in section III.A. of 
Ukraine's  panel request could reasonably have led Russia to conclude that Ukraine was only 
challenging the de facto  application of restrictions on transit effected  by Decree No. 1 and 
Resolution  No. 1. This is reinforced by the fact that Ukraine's panel request did explicitly refer to 
Decree No. 319 in the first group of measures in section II.A.  In the circu mstances, Russia  could 
reasonably have inferred that the a bsence of a reference to Decree No. 319 in the identification of 
the second group of measures in s ection III.A. of the panel request was deliberate .447  
7.313.   This is further supported by the fact that the identification of the de facto  measure in the 
second sub -category of the secon d group of measures in s ection III.A . of the panel request uses the 
term "restric tions" rather than "bans ". The referen ce to Decree No. 319 in s ection II.A. of the 
panel  request , by contrast,  describes this i nstrument as involving a "ban ". The use of the word 
"restrictions" rather than "bans" to describe the de facto  measure could also reasonably have led 
Russia to conclude that the de facto  measure was concerned with the de facto  application of the 
restrictions on transit (i.e. the restrictive conditions requiring that transit from Ukraine occur 
                                                
444 Appellate Body Report, US – Oil Country Tubular Goods Sunset Review s, para. 165. (emphasis 
original)  
445 Ibid. para. 166.  
446 Ibid. para. 167.  
447 Although th e third sub -category of the second group of measures described in section III.A. of the 
panel request refers to amendments to any of the measures mentioned in sections II.A. and III.A., this 
sub-category is prefaced by the explanation that this inclusion i s necessary owing to Russia's failure to comply 
with the transparency and notification obligations under the GATT 1994 and Russia's Accession Protocol in 
respect of some of the measures. The existence and content of Decree No. 319 was clearly known to Ukra ine 
at the time of its panel request, as it specifically refers to this instrument in the context of its discussion of the 
first group of measures in section II.A. Therefore, in the circumstances, it would not have been reasonable for 
Russia to infer, from  the references to amendment measures in the third sub -category of measures described 
in section III.A., that Ukraine was referring to the amendments to Decree No. 1 effected by Decree No. 319.  WT/DS512/R  
 
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exclusively through Belarus and the "additional restrictive conditions" such as the application of 
identification seals and the use of registration cards , all of which  are referred to in Decree No. 1 ), 
rather than the ban on transit of : (a) goods that are subject to non -zero import duties according to 
the Common Customs Tariff of the EaEU, and (b)  goods falling within the scope of the import ban 
imposed by Resolution No . 778.  
7.314.   The Panel recognizes that Ukraine's apparent expansion of the scope of the de facto  measure 
in its first written submission, to include the de facto  application of Decree No. 319 in addition to 
Decree  No. 1, does not strictly affect the question of whether the measure was described with the 
requisite clarity in Ukraine's panel request. As previously noted, compliance with the requirements 
of Article 6.2 of the DSU must be demonstrated on the face of the panel request. The Panel makes 
the observations  above only to indicate that, even if it had concluded that Ukraine's panel request 
identified  the de facto  measure with sufficient specificity to meet the requirements of Article  6.2 of 
the DSU, the Panel considers that the de facto  measure Ukraine describes in its first written 
submission is different from the measure it identifies in its panel request.  
7.315.   The Panel finds  that the identification of the de facto  measure in Ukraine's panel request 
fails to satisfy the requirements of Ar ticle 6.2 of the DSU to identify the specific measures at is sue 
and is therefore outside the Panel's  terms of reference.  
7.7.2.2.3   Third sub -category of measures  
7.316.   The third sub -category of the second group of measures (item c. in paragraph  7.285 above) 
covers any re lated transit measures that implement, complement, add to, apply, amend or replace 
any of the measures identified in both sections II.A and III.A. of Ukraine's panel request of which 
Ukraine may not be aware owing to Russia's alleged failure to comply with  its transparency and 
publication obligations.448 The legal instruments listed in Ukraine's panel request and of which 
Ukraine clearly was aware (for example, Decree No. 319, which amended Decree No. 1 ), would not 
fall within this sub -category.  
7.317.   The Panel co ncludes that Ukraine's panel request clearly identifies the third sub -category of 
the second group of measures.  
7.7.2.2.4   Identification of the legal basis of the complaint  
7.318.   Russia also contends that the legal basis for the complaint in respect of the measures 
compri sing the second group of measures is provided only in respect of the group, rather than for 
each of the measures within the group.449 The opening words of section III.B. of Ukraine's panel 
request, entitled "Legal Basis for the Complaint", read: "Ukraine con siders that the measures 
identified in section III.A. are inconsistent with the following WTO provisions ". As with the similar 
objection made by Russia in respect of the first group of measures, Ukraine's use of the term 
"the measures" rather than "group o f measures" makes clear that the claims of WTO -inconsistency 
that follow are made in relation to each of the measures within the second group of measures 
identified in section III.A. of Ukraine's panel request.450  
7.319.   The Panel  therefore considers that the panel request adequately describes the legal basis of 
the complaint in relation to the measures identified within the "second group of measures" for each 
of the claims made in section III.B. of Ukraine's panel request.  
7.7.2.3   Conclu sions  on w hether Ukraine's panel request satisfie s the requirements of 
Article 6.2 of the DSU  
7.320.   The Panel finds  that the identification of the de facto  measure in Ukraine's panel request 
fails to satisfy the requirements of Article 6.2 of the DSU to identify  the specific measures at is sue 
and is therefore outside the Panel's  terms of reference.  
                                                
448 See Ukraine's opening statement at the second meeting of th e Panel, paras. 25 -26. Ukraine argues 
that the use of the phrase "related measures" has not changed the essence of the measures that fall within the 
Panel's terms of reference. (See ibid. para. 27.)  
449 Russia's second written submission, para. 10.  
450 See par a. 7.283 above.  WT/DS512/R  
 
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7.321.   The Panel finds that the identification of the other measures in Ukraine's  panel  request 
satisfies the requirements of Article 6.2 of the DSU to identify the specific measures at issue.  
7.322.   The Panel finds that Ukraine's panel request adequately describes the legal basis of the 
complaint in relation to the measures identified within the "first group of measures" for each of the 
claims made in section II.B., and in relation  to the measures identified within the "second group of 
measures" for each of the claims made in section III.B., of Ukraine's panel request.  
7.323.   The Panel finds that Russia has failed to establish that Ukraine's panel request does not 
present the problem clea rly, as required by Article 6.2 of the DSU,  because , in Russia's view,  the 
panel  request does not make clear how the measures that comprise each of the two distinct "groups 
of measures" set forth in the panel request operate together, or adequately explain which treaty 
provisions are alleged to be infringed by each of the challenged measures i n the two groups of 
measures.  
7.7.3   Whether the 2014 Belarus -Russia Border Bans on Transit of Resolution No. 778 
Goods  are within the Panel's terms of reference  
7.324.   In this Section, the Panel addresses Russia's additional argument that the category of 
measures desc ribed in Ukraine's  first written submission as the "2014 transit bans and other transit 
restrictions", and by the Panel as  the "2014 Belarus -Russia Border Ban s on Transit of Resolution No. 
778 Goods " (2014 Belarus -Russia Border Bans )451, are outside  the Pane l's terms of reference  
because these measures were no longer in existence at the time of Ukraine's panel request .  
7.325.   The 2014 Belarus -Russia Border Ban s are the alleged bans identified in the first sub -category 
of the second group of measures in section III. A. of Ukraine's panel request452, namely, the 
2014 prohibitions on transit from Ukraine across Russia, of goods subject to veterinary and 
phytosanitary surveillance, and which are included in the list approved by Resolution No. 778, 
through checkpoints of the Republic of Belarus, along with special checkpoint and permit 
requirements for such goods destined for Kazakhstan and other countries.453  
7.326.   To recall, i n August 2014, the Russian Government passed Resolution No. 778, which 
temporarily bans the importation  into Russia of various agricultural products, raw materials and 
foodstuffs set forth in a list annexed to  the Resolution that originate from certain countries, including 
the United States, EU Member States, Canada, Australia and Norway , that had imposed sanctions 
against Russia .454 The list of products to which the import ban applies has  also been modified several 
times.455  
7.327.   The 2014 Belarus -Russia Border Ban s provide that veterinary and plant goods  subject to the 
import bans under Resolution No . 778  may only transit  through designated checkpoints located on 
the Russian side of the external border of th e EaEU.456 The 2014 Belarus -Russia Border Ban s are 
implemented by instructions contained in two letters issued by  the Rosselkhoznadzor : 
Instruction  No. FS-NV-7/22886, dated 21  November 2014, ( the Veterinary Instruction), which 
                                                
451 In the previous Sections of this Report, the Panel refers to "2014 transit bans and other transit 
restrictions" as the "2014 Belarus -Russia Border Ban s on Transit of Resolution No. 778 Goods". In this Section, 
however, for ease of reference, the Panel wil l refer to these measures as the "2014 Belarus -Russia Border 
Bans".  
452 See Ukraine's response to Panel question No. 1 after the first meeting of the Panel , para. 63.  
453 For a description of the 2014 measures, see paras.  7.1.d and 7.106.c above, and paras. 7.326 -7.327 
below . 
454 See para. 7.10 above.  
455 Resolution No. 830 , (Exhibit UKR -11); Resolution No. 981, (Exhibit UKR -14); Resolution No. 157 , 
(Exhibit UKR -16); Resolution No. 472 , (Exhibit UKR -17); Resolution No. 897 , (Exhibit UKR -19); 
Resolution  No. 1086, (Exhibit UKR -20); and Resolution No. 1292, (Exhibit UKR -94). 
456 See para. 7.269.a above . The Panel interprets the Plant Instruction in the context of the 
contemporaneous Veterinary Instruction, given that both instrument s were issued on the same date by the same 
government authority, in reference to the same ban on products under Resolution No. 778. The Panel therefore 
considers that "the checkpoints" referred to in the Plant Instruction, properly construed, must be those  
checkpoints listed in the Veterinary Instruction.  This interpretation of the two Instructions  was also put forward 
by Ukraine in its panel request, in which Ukraine asserted  that the entry of both veterinary and plant goods was 
only allowed "through the c heckpoints located at the Russian part of the external border of the Customs Union". 
(Ukraine's panel request,  Section III.A ., p. 4.)  For more detail, see fn 458 below.  
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applies to veterinary goods covered by Resolution No. 778  as of 30 November 2014457; and 
Instruction No. FS -AS-3/22903, dated 21 November 2014, ( the Plant Instruction), which applies to 
plant goods covered by Resolution  No. 778  as of 24 November 2014 .458 
7.328.   Russia, in its first written submission, requested a preliminary ruling that the 
2014 Belarus -Russia Border Bans  are outside the Panel's terms of reference.459 Russia  considers that 
these alleged bans  did not exist at the date of Ukraine's request for consultations 
(21 September  2016), or at the date of its request for establ ishment of a panel 
(10 February  2017).460 Russia argues that the Veterinary Instruction and  the Plant Instruction were 
"superseded" by Decree  No. 1, dated 1  January  2016, and by Resolution No. 1 , also dated 
1 January  2016.461 According to Russia, Decree No. 1 therefore "effectively abolished any 
requirements that were set out in the Letters of Rosselkhoznadzor  in question in respect of 
Ukraine ".462 In its opening statement at the first substantive meeting of the Panel, Russia clarified 
its argument as follows:  
a. When the Veterinary Instruction and Plant Instruction were adopted, Ukraine was not 
included in the list of countries whose goods were subje ct to Resolution No. 778. The refore, 
the 2014 measures  "could not [apply] and were not applied to the goods from Ukraine ".463  
b. Resolution No. 778 was amended on 1 January 2016 to add Ukraine to the list of countries 
whose goods were subject to Resolution No.  778. However, also on 1 January 2016, 
Decree No. 1 and Resolution No. 1 were adopted to permit the transit o f goods from 
Ukraine across Russian territory  only through "the checkpoint situated on the state border 
of the Russian Federation inside its Russia -Belarus sector ".464 
c. Decree No. 1 and Resolution No. 1, as measures adopted by the Government of the 
Russian Federation, are superior in the Russian legal hierarchy to the instructions issued 
                                                
457 Veterinary Instruction, (Exhibits UKR -21, RUS -10). 
458 Plant Instruction, (Exhibits UKR -22, RUS -11). The Veterinary Instruction specifically prohibits transit 
across Russia through Belarussian checkpoints, owing to the detection of "gross violations" during the transit of 
Resolution No. 778 goods through the Republic of Belarus, and limits e ntry to nine identified checkpoints on 
the border between Russia, on the one hand, and Finland, Estonia, Latvia and Ukraine, on the other hand. 
(Veterinary  Instruction, (Exhibits UKR -21, RUS -10).) The Plant Instruction, conversely, simply states that the 
transit of phytosanitary goods covered by Resolution No. 778, destined for third countries including 
Kazakhstan, will take place "exclusively through the checkpoints across the state border of the 
Russian  Federation". (Plant Instruction, (Exhibits UKR -22, R US-11).) The Plant Instruction does not, on its 
face, refer to prohibiting transit across Russia through Belarussian checkpoints, or the nine checkpoints 
identified in the Veterinary Instruction. However, in an official statement issued by the Rosselkhozna dzor, it 
was explained that the Plant Instruction was intended to prevent the "illegal delivery of quarantined products 
from the territory of Belarus" and "false transit by the Belarusian and Kazakhstani competent services". 
(Official Site of the Rosselkho znadzor , "Regarding Regulation by Rosselkhoznadzor of Quarantined Plant 
Products Transit", dated 24 November 2014, (Exhibit UKR -88).)  
459 Russia's first written submission, para. 31 ; and opening statement at the first meeting of the Panel, 
para. 6 . 
460 Russia's first written submission, paras. 3, 27  and 30; and opening statement at the first meeting of 
the Panel, para. 6.  
461 Russia's first written submission, para. 26. Decree No. 1 provides that all road and railway cargo 
transportation from Ukraine to Kazakhstan, through the territory of Russia, shall be carried out only from the 
territory of Belarus and shall be subject to additional conditions related to identification seals and registration 
cards , at specific  control points to be established by the R ussian  Government.  Decree No. 1 was amended in 
various respects by Decree  No. 319 on 1 July 2016, including by extending the  restrictions on traffic in transit 
from Ukraine, destined for Kazakhstan, to traffic in transit from Ukraine, destined for the Kyrg yz Republic . 
Decree No. 319 also imposed a temporary prohibition  on the transit from Ukraine , across the ter ritory of 
Russia , of goods that would be subject to import duties a bove zero if imported into Russia , as well as goods 
covered by Resolution  No. 778 . (Decree No. 1, (Exhibits UKR -1, RUS -1); and Decree No. 319, (Exhibits UKR -2, 
RUS-2).) Decree No.1 has been extended to apply until 30 June 2018 by Decree No. 643, (Exhibits UKR -98, 
RUS-13). 
462 Russia's first written submission, para. 26.  
463 Russia's openin g statement at the first meeting of the Panel, para. 5.  
464 Ibid. para. 6.  
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by the Rosselkhoznadzor , which is a Federal Service reporting to t he Government of the 
Russian Federation.465  
7.329.   Accordingly, Russia argues that there has "not been a single day when the measures 
contained in the Letters of Rosselkhoznadzor  were applied to the transit of goods from Ukraine ".466 
7.330.   Ukraine, in its first written su bmission, acknowledges that the Veterinary Instruction was 
formally amended by Instruction No. FS -EN-7/19132 of the Rosselkhoznadzor  on 10 October 2016, 
to provide that "traffic in transit of goods that are subject to control by the state veterinary 
survei llance , from the territory of Ukraine into the territor [ies] of the Republic of Kazakhstan and 
the Kyrgyz  Republic  must be carried out according to [Resolution No. 1 ]".467 While conceding that 
veterinary  goods covered by Resolution No. 778 "moving specifical ly from" the territory of Ukraine 
to the territories of Kazakhstan and the Kyrgyz Republic are accordingly no longer subject to the 
Veterinary  Instruction, Ukraine argues that the Veterinary Instruction continues to apply to traffic in 
transit not covered by Resolution No. 1.468 Ukraine further argues that if neither instruction ever 
applied with respect to Ukraine, there would have been no need to  adopt Instruction No. FS -EN-
7/19132, providing that the traffic in transit of veterinary goods from the territory of Ukraine into 
the territories of Kazakhstan and the Kyrgyz Republic must be carried out in accordance with 
Resolution No. 1.469 Consequently,  according to Ukraine, (a) veterinary goods covered by Resolution 
No. 778 transiting from  countries other than  Ukraine, and (b)  veterinary goods covered by 
Resolution No. 778 transiting from Ukraine but to destinations other than Kazakhstan and the Kyrgyz 
Republic , remain  subject to the Veterinary Instruction.470 
7.7.3.1   Whether the existence of the 2014 Belarus -Russia Border Bans goes to the Panel's 
terms of reference  
7.331.   Russia argues that the 2014 Belarus -Russia Border Ban s do not have any legal effect with 
respect to  transit from Ukraine , and therefor e that the measures do not exist, and are accordingly  
outside the Panel's terms of reference . Russia's request for a ruling that the 2014 Belarus -Russia 
Border Ban s are outside th e Panel's terms of reference relies on  what it considers to be a "general 
rule" in WTO jurisprudence, according to which "the measure covered by a panel's terms of reference 
must be a measure in existence at the time of the establishment of the panel ."471 It refers to the 
Appellate Body Report in EC –Chicken Cuts  in support of this proposition.472 
7.332.   The EC – Chicken Cuts  dispute involved two original measures that had been explicitly 
identified in the complaining parties' panel requests. The issue for the panel and Appellate Body was 
whether two subseq uent measures, which had come into existence after the date of the panel 
requests and therefore had not been explicitly identified in the panel requests, were nevertheless 
within the panel's terms of reference. In this specific context, the Appellate Body stated that the 
term "specific measures at issue" in Article 6.2 of the DSU suggests that:  
[A]s a general rule, the measures included in a panel's terms of reference must be 
measures that are in existence at the time of the establishment of the panel . However, 
                                                
465 Russia's opening statement at the first meeting of the Panel,  para. 6.  
466 Ibid. 
467 Ukraine's first written submission, paras. 59  and 244; and Instruction No. FS -EN-7/19132  of the 
Rosselkhoznadzor , dated  10 October 2016,  (Exhibit UKR -75). See also Ukraine's opening statement at the first 
meeting of the Panel, paras. 9 -11. 
468 Ukraine's first written submission, paras. 59  and 244. Ukraine similarly argues that Decree No. 1 and 
Resolution No. 1 would supersede the Plant Instruction, but only to the extent of a conflict between them, 
because Presidential decrees and Government resolutions are superior to agency instructions in t he Russian 
legal hierarchy , and in this case, the relevant decree and resolution were also promulgated later in time . 
(Ukraine's first written submission, para. 60; and opening statement at the first meeting of the Panel, 
para. 13.) 
469 Ukraine's second writ ten submission, para. 18.  
470 Ukraine's first written submission, para . 244; and opening statement at the first meeting of the 
Panel, para. 1 1. 
471 Russia's first written submission, para. 25.  
472 Ibid. (referring to Appellate Body Report, EC – Chicken Cuts , para. 156).  
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measures enacted subsequent to the establishment of the panel may, in certain limited 
circumstances, fall within a panel's terms of reference.473 
7.333.   In other words, in EC – Chicken Cuts , the terms of reference issue arose because the two 
subsequent measur es had not been explicitly identified in the complainants' panel requests (owing 
to the fact that they did not then exist). The question was whether they were nevertheless 
sufficiently identified in the panel requests for purposes of Article 6.2 of the DSU  on account of their 
relationship to two original measures that had been explicitly identified in the panel requests.  
7.334.   The situation before this Panel is therefore different from the situation in EC – Chicken Cuts . 
The 2014 Belarus -Russia Border Ban s are identified in Ukraine's panel request.474 The issue is 
whether these measures in fact existed  at the relevant time.  
7.335.   It is clearly established that the issue of the existence of a measure goes to the merits of a 
case. It is not a jurisdictional issue. In EC an d certain member States – Large Civil Aircraft , the 
European Communities sought a preliminary ruling that alleged launch aid / member State financing 
(LA/MSF ) subsidies to support the development of the Airbus A350 aircraft (A350) were outside the 
panel's terms of reference because the subsidies  did not exist at the time of the United States' panel 
request for the establishment of a panel. The panel noted that the dispute between the parties 
concerned the factual question of whether  there were any LA/MSF measures in existence with 
respect to the A350 at the time of the panel request. The  panel stated that, where the existence or 
non-existence of a challenged measure is a disputed question of fact, it is not an appropriate matter 
for determination in a preliminary ruling. The panel therefore addressed this issue in its evaluation 
of the United States' substantive claims.475 
7.336.   In US – Continued Zeroing , the Appellate Body rejected the panel's view that, in order to 
successfully raise claims  against a measure, the  complaining Member must first demonstrate the 
existence and the precise content of the measure, according to the requirements of Article 6.2 of 
the DSU.476 The Appellate Body explained that the identification of the specific measures at issue, 
pursuant to Article 6.2 of the DSU, is different from a demonstration of the existence of such 
measures. Only in respect of the latter would the complaining party be expected to present relevant 
arguments and evidence during the panel proceedings  to show the existence of the measures.477  
7.337.   The Appellate Body's approach in US – Continued Zeroing  was followed by the panel in 
US – Orange Juice (Brazil ), which rejected the United States' request for a ruling that Brazil's alleged 
"continu ed zeroing" measure was outside the panel's terms of reference because the measure as 
described in the panel request did not satisfy the requirements of Article 6.2. The panel considered 
that it was reasonably clear from the description of the measure in its  panel request that the 
complainant challenged the United States' "continued use" of "zeroing procedures" as 
"ongoing  conduct ". The panel noted that, in order for it to rule on the United States' request for a 
preliminary ruling, there was no need for it t o go further, and pronounce on whether such 
"ongoing  conduct" was susceptible to challenge in WTO dispute settlement, or decide whether the 
alleged "ongoing conduct" measure actually exist ed.478  
7.338.   In Russia – Tariff Treatment , Russia  sought a preliminary ruli ng that one of the measures, 
concerning a particular tariff line, did not exist at the time of the establishment of the panel. 
The panel quoted the Appellate Body's statement in US – Continued Zeroing , adding  that a 
complaining party is not required to est ablish the existence of a specific measure at issue in its panel 
                                                
473 Appellate Body Report, EC – Chicken Cuts , para. 156. ( underlining  added; footnote omitted)  
474 In its first written submission , Ukraine  clarifies that its reference to the Plant Instruction in its panel 
request contained a typographical error. (See Ukraine's first written submission, fn 77 to para. 55;  and opening 
statement at the first meeting of the Panel, para. 18 .) Russia also seems to have understood that particular 
reference to be a typographical error. (See Russia's first written submission,  para. 24. ) 
475 See Panel Report, EC and certain member States – Large Civil Aircraft , paras. 7.108 -7.117.  
476 Panel Report, US – Continued Zeroing , para. 7.50.  
477 Appellate Body Report, US – Continued Zeroing , para. 169. See also Ukraine's response to 
Panel  question No. 1  after the first meeting of the Panel , para s. 21-22, where , in connection with arguments 
concerning a different measure, Ukraine refers to the Appellate Body's statement in US – Continued Zeroing  to 
support  its argument that Article 6.2  of the DSU does not require that the existence of the measures at issue 
be demonstrated in a panel request.  
478 Panel Report, US – Orange Juice (Brazil ), paras. 7.41 -7.42. 
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request. Rather, such demonstration is to be made in the complaining party's written submissions 
and at a panel's meetings with the parties.479 
7.339.   In conclus ion, the existence of the 2014 Belarus -Russia Border Ban s is an issue that goes to 
the merits of the case, rather than to the delimitation of the scope of the terms of reference .  
7.7.3.2   Whether Ukraine has established the existence of the 2014 Belarus -Russia Border 
Bans  in its panel request  
7.340.   The Panel next considers whether Ukraine has established that the 
2014 Belarus -Russia  Border Ban s in fact existed at the time of its panel request. The answer to this 
question depends on whether Ukraine has established that the 2014 B elarus -Russia Border Ban s 
continue to have legal effect with respect to  transit from  Ukraine, notwithstanding the promulgation 
of Decree  No. 1 and Resolution No. 1 on 1 January 2016. In this respect, Ukraine argues that there 
is no evidence before the Pane l expressly or implicitly of the repeal of the 2014 Belarus -Russia 
Border Ban s, and that, to demonstrate the existence of these measures at the time of the 
establishment of the Panel, Ukraine is not required to provide evidence of actual application of the se 
transit measures.480  
7.341.   As noted previously, the 2014 Belarus -Russia Border Ban s are implemented by two 
Rossel khoznadzor  instruction letters of November 2014.481 The Veterinary Instruction prohibits, as 
of 30 November 2014, the transit of veterinary goods cov ered by Resolution No. 778 and destined 
for Kazakhstan or third countries across Russian territory through  checkpoints in the territory of 
Belarus. Rather, transit of su ch goods must take place through  specific checkpoints located on the 
Russian side of th e external border of the EaEU.482 The Plant I nstruction does not , on its face,  prohibit 
the transit of plant goods covered by Resolution No. 778 across Russian territory from checkpoints 
in the territory of Belarus, but instead  requires that, as of 24 November 2014, transit of such goods 
destined for third countries , including Kazakh stan, occur exclusively through "the checkpoints across 
the state border  of the Russian Federation ".483  
7.342.   The parties agree that goods of Ukrainian origin  were not originally subject to 
Resolution  No. 778 and thus, that neither the Veterinary Instruction nor the Plant Instruction 
originally applied to transit of goods of Ukrainian origin . However, the Veterinary Instruction and 
Plant Instruction by their terms nevertheless applied to the transit from Ukraine of goods covered 
by Resolution No. 778 (i.e. specifi ed veterinary and plant goods originating from countries listed in 
Resolution No. 778).  
7.343.   The Russian Government subsequently amended Resolution No. 778 so that it also applied 
to the specified veterinary and plant goods of Ukrainian origin , as of 1 January  2016.484 At the same 
time, the Russian President promulgated Decree No. 1, which is entitled "On the measures ensuring 
economic security and national interests of the Russian Federation in the cases of international 
transit cargo transportation from the ter ritory of Ukraine to the territory of the Republic of 
Kazakhstan through the territory of the Russian Federation ". Decree No. 1 requires that, as of 
1 January 2016, transit from Ukraine  destined for Kazakhstan could only enter Russian territory from 
                                                
479 Panel Report, Russia – Tariff Treatment , Annex A -1, para. 6.7.  
480 See Ukraine's opening statement at the second meeting of the Panel, paras. 6 -7. 
481 See para. 7.32 7 above.  
482 The introduction to the Veterinary Instruction provides that the prohibition on transit of veterinary 
Resolution No. 778 goods across Russia from th e checkpoints in the territory of Belarus is necessitated by the 
"detection of gross violations during the transit through the territory of the Republic of Belarus" of veterinary 
Resolution No. 778 goods. (Veterinary Instruction, (Exhibits UKR -21, RUS -10).) 
483 However, see fns 456 and 458 above.  
484 Russia's opening statement at the first meeting of the Panel, paras. 5 -6; and Ukraine's second 
written submission, para. 14. This was effected through two resolutions of the Government of the Russian 
Federation: (a ) Resolution No. 842, (Exhibit UKR -13), which added Ukraine to the list of countries whose 
veterinary and plant goods were subject to Resolution No. 778, but with a proviso that the import ban applying 
to such goods of Ukrainian origin would be applied fro m the effective date of paragraph 1 of Resolution No. 959 
of the Government of the Russian Federation, dated 19 September 2014, but no later than 1 January 2016; 
and (b)  Resolution No. 1397, (Exhibit UKR -15), which amended Resolution No. 778 to provide tha t the import 
ban on specified veterinary and plant goods would be applied to Ukraine from 1 January 2016.  
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the te rritory of Belarus, and subject to additional conditions related to identification seals and 
registration cards  as well as control points to be established by the Russian Government .485  
7.344.   The parties agree that, to the extent that there is any inconsistency between the 
Veterinary  and Plant Instructions, on the one hand, and Decree No. 1, on the other, the latter would 
prevail, owing to the fact that it is superior in the Russian legal hierarchy.486  
7.345.   The Veterinary and Plant Instructions concern th e transit of goods subject to 
Resolution  No. 778 that are destined for Kazakhstan and other third countries. The requirements in 
those instructions (i.e. that such goods may not enter  Russia through Belarus and can only enter  
through certain designated checkpoints situated on the Russian state border) would be superseded, 
as regards transit from Ukraine  of such goods, by the requirement in Decree No. 1 that all transit  
from Ukraine  (which would include goods covered by Resolution No. 778 transiting across R ussia 
from Ukraine) that is destined for Kazakhstan (and from 1 July 2016, the Kyrgyz Republic), be 
carried out exclusively from the territory of Belarus, and comply with the additional conditions related 
to identification seals and registration cards , at specific control points, as set out  in Decree No. 1.  
7.346.   Therefore, it is clear that, as of 1 January 2016, the 2014 Belarus -Russia Border Ban s did 
not apply to transit  from Ukraine of goods covered by Resolution No. 778 that are destined for 
Kazakhstan or th e Kyrgyz Republic. The question is whether the 2014 Belarus -Russia Border Ban s 
continued to apply to transit  from Ukraine of goods covered by Resolution No. 778 that are  destined 
for cou ntries other than Kazakhstan or  the Kyrgyz Republic. The Panel conside rs that the  answer to 
that question depends on the  scope of application of the  amendment to Decree  No. 1 effected by 
Decree No . 319, namely, the temporary prohibition on the transit of goods covered by Resolution 
No. 778.  
7.347.   Decree No. 319 not only expanded t he restrictions applying to transit from Ukraine destined 
for Kazakhstan to apply to transit from Ukraine destined for the Kyrgyz Republic. It also introduced 
what is referred to as a "temporary " prohibition on the transit of goods covered by Resolution No. 
778.487 The terms of this amendment to Decree No. 1, introduced by Decree No. 319, are as follows:  
To introduce a temporary prohibition for motor road and railroad transportation of goods 
covered  in the Russian Federation by the rates of import customs duties specified in the 
Common Customs Tariff  of the [EaEU] different from zero and the goods included into 
the list of agricultural produce, raw materials and foodstuffs endorsed by the 
Government of the Russian Federation in pursuance of Decree of the President of the 
Russian Federation No. 560 of August 6 , 2014 on the Application of Individual Specific 
Economic Measures for the Purposes of Security of the Russian Federation.488 
7.348.   The prohibition intro duced by Decree No. 319 is not, by its express terms, confined to transit 
from Ukraine  of goods covered by Resolution No. 778, or to the transit of goods covered by 
Resolution No. 778 that are destined for any particular countries. If the prohibition appli ed to the 
transit of goods covered by Resolution No. 778 regardless of the country from which the goods  
entered Russia, or the country of destination, the 2014 Belarus -Russia Border Ban s would, since 1 
July 2016, have been entirely superseded by Decree No.  1, as amended by Decree No. 319.  
7.349.   However, the title to Decree No. 1 (as amended by Decree No. 319) expre ssly states that it 
applies to  transit from Ukraine which is destined for Kazakhstan or the Kyrgyz Republic . Therefore, 
the Panel considers that the sc ope of the prohibition  on the transit of goods covered by Resolution 
No. 778, effected by Decree No. 319 above, is limited to transit from Ukraine  of such goods where 
the destination of the goods  is either Kazakhstan or the Kyrgyz Republic, and not other d estinations.  
                                                
485 Decree No. 1, (Exhibits UKR -1, RUS -1). Decree No. 1 was amended by Decree No. 319 to extend 
these requirements to Ukrainian traffic in transit desti ned for the Kyr gyz Republic, as of 1 July 2016 . 
(Decree  No. 319, (Exhibits UKR -2, RUS -2).) The control points were established by Resolution No. 1, 
(Exhibits  UKR-3, RUS -4). 
486 See, e.g. Ukraine's first written submission, para. 60; and Russia's first writte n submission, para. 26.  
487 The temporary prohibition introduced by Decree No. 319 also applies to the transit of goods that are 
subject to non -zero import duties according to the Common Customs Tariff of the EaEU. (Decree No. 319, 
(Exhibits UKR -2, RUS -2).) 
488 Decree No. 1, as amended by Decree No. 319, (Exhibit RUS -1), section 1.1. (underlining original)  WT/DS512/R  
 
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7.350.   This being so, it appears that Decree No. 1, as amended by Decree No. 319, does not entirely 
supersede the legal operation of the 2014 Belarus -Russia Border Ban s with respect to the transit 
from Ukraine of goods covered by Resolution No. 778.  The 2014 Belarus -Russia Border Ban s would 
continue to apply to the transit from Ukraine of goods covered by Resolution No. 778 that are 
destined for countries other than  Kazakhstan or the Kyrgyz Republic.  
7.351.   The Panel's conclusion that the 2014 Belarus -Russi a Border Ban s have some residual legal 
effect as regards transit from Ukraine of goods covered by Resolution No. 778, notwithstanding the 
promulgation of Decree No. 1 and Decree No. 319, is complicated somewhat by Ukraine's allegation 
that the Russian auth orities are de facto  applying the measures implemented by Decree No. 1, as 
amended, to traffic in transit from Ukraine which is destined for Mongolia, Tajikistan, Turkmenistan 
and Uzbekistan. Clearly, if this were the case, the scope of operation of the 2014 Belarus -Russia 
Border Ban s would, in fact, be even more limited owing to the corresponding expansion in the scope 
of operation of Decree No. 1, as a factual matter.  
7.352.   However, the Panel has ruled that the de facto  measure is outside its terms of refere nce.489 
Therefore, the Panel does not reach any conclusion as to whether Ukraine has established, as an 
evidentiary matter, that Decree No . 1 is in fact being applied to transit from Ukraine of goods  
destined for these other countries.  
7.353.   The Panel therefore co ncludes that, while Decree No. 1 (as amended by Decree No. 319) 
supersedes the 2014 Belarus -Russia Border Ban s as they apply to the transit from Ukraine of goods 
covered by Resolution No. 778 that are destined for Kazakhstan or the Kyrgyz Republic, Decree 
No. 1, as amended, does not by its terms affect the legal operation of the 
2014 Belarus -Russia  Border Ban s as they apply to transit from Ukraine of goods covered by 
Resolution No. 778 that are destined for countries other than  Kazakhstan or the Kyrgyz Repu blic. 
Accordingly, the Panel finds that Ukraine has established  that, as  of the date of 
Ukraine's  panel  request (10 February 2017) , the 2014 Belarus -Russia Border Ban s continued to 
exist, notwithstanding the adoption of Decree No. 1 (as amended by Decree N o. 319), in that they 
had legal effect  with respect to transit from Ukraine of goods covered by Resolution No.  778 destined  
for countries other than Kazakhstan or the Kyrgyz  Republic .  
7.354.   For the sake of clarification, the Panel would add that it is aware that the 
2014 Belarus -Russia Border Bans also  apply to transit , from countries other than Ukraine,  of goods 
covered by Resolution No. 778. However, Ukraine's panel request confines its cha llenge to the transit 
restrictions in the 2014 Belarus -Russia Border Ban s to those that apply  to "traffic in transit from the 
territory of Ukraine through the territory of the Russian Federation ". This limitation is clear from  the 
underscored paragraph tha t summarizes the effect of the instruments that implemen t the first 
sub-category of the second group of measures in section III.A. : 
As a result of the restrictions imposed by these Instructions combined with the 
restrictions imposed by Decree No. 1, the go ods falling within the scope of these 
Instructions are prohibited for transit from the territory of Ukraine  through the territory 
of the Russian Federation to the territory of the Republic of Kazakhstan and the Kyrgyz 
Republic .490 
7.355.   Owing to this limitation in  Ukraine's panel request, the only aspects of the 
2014 Belarus -Russia Border Bans that are within the Panel's terms of reference are those that apply 
to transit  from Ukraine . 
7.7.4   Summary of the Panel's findings on the measures that are within its terms of 
reference  
7.356.   In this Section of the Report, the Panel finds that the de facto measure, i.e. the measure 
referred to in the second sub -category of the second group of measures in section III.A. of 
Ukraine's  panel request as "de facto applying  Decree No. 1 and Resolution No. 1 to transit from the 
                                                
489 See para. 7.31 5 above.  
490 Ukraine's panel request, section III.A., p. 5. (underlining original; italics added) See also ibid. 
section  III.A., first sentence , p. 4.  WT/DS512/R  
 
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territory  of Ukraine to third countries other than the Republic of Kazakhstan and the 
Kyrgyz  Republic", is outside its terms of reference.  
7.357.   The Panel finds that the following measures are within its terms of reference:  
a. The 2016 Belarus Transit Requirements : Requirements that all international cargo transit 
by road and rail from Ukraine destined for the Republic of Kazakhstan or the Kyrgyz 
Republic, through Russia, be carried out exclusively from Belarus, and comply with a  
number of additional conditions related to identification seals and registration cards at 
specific control points on the Belarus -Russia border  and the Russia -Kazakhstan border . 
b. The 2016 Transit Bans on Non -Zero Duty Goods and Resolution No. 778 Goods : Bans on 
all road and rail transit from Ukraine of: (a) goods that are subject to non -zero import 
duties according to the Common Customs Tariff of the EaEU, and (b) goods that fall within 
the scope of the import bans imposed by Resolution No. 778, which are  destined for 
Kazakhstan or the Kyrgyz Republic. Transit of such goods may only occur pursuant to a 
derogation requested by the governments of Kazakhstan or the Kyrgyz Republic which is 
authorized by the Russian Government, in which case, the transit is su bject to the 2016 
Belarus Transit Requirements ( above ).  
c. The 2014 Belarus -Russia Border Bans on Transit of Resolution No. 778 Goods : Prohibitions 
on transit from Ukraine across Russia, through checkpoints in Belarus, of goods subject to 
veterinary and phyt osanitary surveillance and which are subject to the import bans 
implemented by Resolution No. 778, along with related requirements that, as of 30 
November 2014, such veterinary goods destined for Kazakhstan or third countries enter 
Russia through designate d checkpoints on the Russian side of the external customs border 
of the EaEU and only pursuant to permits issued by the relevant veterinary surveillance 
authorities of the Government of Kazakhstan and the Rosselkhoznadzor , and that, as of 
24 November 2014,  transit to third countries (including Kazakhstan) of such plant goods  
take place exclusively through the checkpoints across the Russian state border.   
8  CONCLUSIONS  
8.1.  For the reasons set forth in this Report, the Panel concludes as follows:  
a. With respect to the Panel's jurisdiction to review Russia's invocation of Article XXI(b)(iii) 
of the GATT 1994 , the Panel finds that : 
i. it has jurisdiction to determine whether the requirements of Article  XXI(b) (iii) of the 
GATT 1994 are satisfied.  
b. With respect t o the measures and claims within the Panel's terms of reference , the Panel 
finds that : 
i. the identification of the de facto  measure in Ukraine's  panel  request fails to satisfy the 
requirements of Article 6.2 of the DSU to identify the specific measures at is sue and is 
therefore outside the Panel's  terms of reference.  
ii. the identification of the other measures in Ukraine's panel request satisfies the 
requirements of Article 6.2 of the DSU to identify the specific measures at issue.  
iii. Ukraine's panel request adeq uately describes the legal basis of the complaint in 
relation to the measures identified within the "first group of measures" for each of the 
claims made in section II.B., and in relation to the measures identified within the 
"second group of measures" for  each of the claims made in section III.B., of Ukraine's 
panel request.  
iv. Russia has failed to establish that Ukraine's panel request does not present the 
problem clearly, as required by Article 6.2 of the DSU.  WT/DS512/R  
 
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c. With respect to the existence of the 2014 Bela rus-Russia Border Bans on Transit of 
Resolution No. 778 Goods as of the date of Ukraine's panel request , the Panel finds that : 
i. Ukraine has established  that, as of the date of  Ukraine's panel request  
(10 February  2017) , the 2014 Belarus -Russia Border Ban s on Transit of Resolution No. 
778 Goods continued to exist , notwithstanding the adoption of Decree  No. 1 (as 
amended by Decree No. 319).  
d. With respect to whether Russia has met the requirements for invoking Article XXI(b)(iii) 
of the GATT 1994 , the Panel fin ds that: 
i. as of 2014, there has existed a situation in Russia's relations with Ukraine that 
constitutes an emergency in international relations within the meaning of 
subparagraph (iii) of Article  XXI(b)  of the GATT 1994;  
ii. each of the measures at issue was ta ken in time of this emergency in international 
relations within the meaning of subparagraph (iii) of Article  XXI(b)  of the GATT 1994;  
iii. Russia has satisfied the conditions of the chapeau of Article XXI(b) of the GATT 1994; 
and 
iv. accordingly, Russia has met the  requirements for invoking Article XXI(b)(iii) in relation 
to the measures at issue, and therefore the measures at issue are covered by 
Article  XXI(b)(iii) of the GATT 1994.  
8.2.  The Panel also concludes as follows:  
a. With respect to Ukraine's claims under the fi rst sentence of Article V:2 of the GATT 1994, 
the Panel considers  that, had the measures been taken in normal times, i.e. had they not 
been taken in time of  an "emergency in international relations" (and met the other 
conditions of Article  XXI(b)), Ukraine would have made a prima facie  case that :  
i. the 2016 Belarus Transit Requirement s were inconsistent with  the first sentence of 
Article V:2 , because these measure s prohibit  traffic in transit  from entering Russia 
from Ukraine ; 
ii. the 2016 Transit Ban s on Non -Zero Duty and Resolution No. 778 Goods were 
inconsistent with the first sentence of Article V:2 , because these measures prohibit  
traffic in transit  from entering Russia from Ukraine ; and 
iii. the 2014 Belarus -Russia Border Ban s on Transit of Resolution No. 778 Goods were 
inconsistent with the first sentence of Article V:2 , because these measures prohibit  
traffic in transit from Ukraine from entering Russia from any Memb er other than those 
countries from which entry is exclusively permitted, as listed in the measure . 
b. With respect to Ukraine's claims under the second sentence of Article V:2 of the 
GATT  1994, the Panel considers  that, had the measures been taken in normal t imes, 
i.e. had they not been taken in time of an "emergency in international relations" (and met 
the other conditions of Article  XXI(b)), Ukraine would have made a prima facie  case that :  
i. the 2016 Belarus Transit Requirement s were inconsistent with the second sentence of 
Article V:2 , because these measures make  distinctions based on the place of departure 
(Ukraine) , the place of destination (Kazakhstan and the Kyrgyz  Republic), and the 
place of entry (Belarus, where entry is exclus ively permitted ) of the traffic in transit ; 
ii. the 2016 Transit Ban s on Non -Zero Duty and Resolution No. 778 Goods were 
inconsistent with the second sentence of Article V:2 , because these measures make  
distinctions based on the place of departure (Ukraine) , the place of  destination 
(Kazakhstan and the Kyrgyz Republic), the place of origin ( countries listed in 
Resolution No. 7 78, as amended to include Ukraine) and the place of entry (Belarus, 
where entry is exclusively permitted ) of the traffic in transit ; and  WT/DS512/R  
 
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iii. the 2014 Belarus -Russia Border Ban s on Transit of Resolution No. 778 Goods were 
inconsistent with the second sentence of Article V:2 , because these measures make  
distinctions based on the place of entry ( certain countries where entry is exclusively 
permitt ed, as listed in that measure)  and the place of origin ( countries  listed in 
Resolution No. 778, as amended to include Ukraine)  of the traffic in transit . 
c. With respect to Ukraine's remaining claims under the GATT 1994, the Panel does not 
consider it necessa ry to address Ukraine's claims under Articles V:3, V:4, V:5, X:1, X:2 
and X:3 (a) of the GATT 1994.  
d. With respect to Ukraine's claims under Russia's Working Party Report, as incorporated into 
its Accession Protocol by reference, the Panel considers  that:  
i. Russia could justify any inconsistency with paragraphs 1161, 1426, 1427 and 1428 of 
Russia's Working Party Report as necessary for the protection of its essential security 
interests taken in time of an "emergency in international relations" within the mean ing 
of Article XXI(b)(iii) of the GATT 1994 ; and   
ii. With respect to Ukraine's claims under paragraph 1161  of Russia's Working Party 
Report , the Panel considers that, had the measures been taken in normal times, 
i.e. had they not been taken in time of an "eme rgency in international relations" (and 
met the other conditions of Article  XXI(b)), Ukraine would have made a prima facie  
case that the measures were inconsistent with paragraph 1161 to the extent that they 
would also be  prima facie  inconsistent with either the first  or second sentence of Article 
V:2 of the GATT 1994, or both ; and  
iii. The Panel does not consider it necessary to address further Ukraine's claims based on 
commitments in  paragraphs  1426, 1427 and 1428 of Russia's Working Party Report.  
8.3.  Having found that Russia has not acted inconsistently with its obligations under the GATT 1994 
or with commitments in Russia's Accession Protocol, the Panel makes no recommendation to the 
DSB pursuant to Article  19.1 of the DSU.WT/DS512/R  
 
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 APPENDIX – SUBSEQUENT CONDUCT C ONCERNING ARTICLE XX I OF THE GATT 1947  
INTRODUCTION  
1.1.  Russia has directed the Panel to analyse  the "historic perspective" in order to support its 
interpretation of Article XXI.1 In particular, Russia has drawn the attention of the Panel t o the 
following documents: (a) statements made by Czechoslovakia in 1949, in the context of its dispute 
with the United States over certain export controls; (b) statements made by Ghana in 1961, in the 
context of opposing Portugal's accession to the GATT 1 947; (c) statements made by the 
European  Communities and the United States in 1982, in the context of the dispute between the 
European Communities and Argentina over certain import measures; (d) statements made by the 
United States in 1985, in the context of its dispute with Nicaragua over an embargo on Nicaraguan 
goods; and (e) statements made by the European Communit ies in 1991, in the context of the dispute 
between the European Communit ies and Yugoslavia over the withdrawal of certain preferences.2 
1.2.  The P anel recalls that in interpreting the terms of a treaty in accordance with the customary 
rules of interpretation, it is empowered to consider any "subsequent practice in the application of 
the treaty which establishes the agreement of the parties regarding  its interpretation ".3 The Panel 
also recalls that pursuant to Article 13 of the DSU, it is empowered to seek information from "any 
relevant source" in making its findings.4 Accordingly, the Panel has conducted a survey of the 
discussions referred to it by  Russia and related documents in order to examine the attitudes of 
GATT  contracting  parties and WTO Members on occasions when matters pertaining to Article XXI 
were addressed in the context of the GATT and WTO.5 The Panel's conclusions on this survey are 
contained in paragraphs  7.80 and 7. 81 of the Panel Report.  
1.3.  The Panel wishes to note that it does not consider that certain documents referred to it by 
Russia establish any relevant conduct of "the parties" in the sense of Article 31(3)(b) of the 
Vienna  Convention. In particular, the Panel notes that statements made by Ghana to justify the 
imposition of an import ban against Portugal in 1961 were made prior to Portugal's accession, during 
which the parties had not yet assumed any obligations to one  another under the GATT 1947.6 In the 
Panel's view, invocations of Article XXI by a contracting party in order to defend measures taken 
against a non -contracting party, as well as any invocations of Article XXI by non -contracting parties 
during accession n egotiations, cannot establish a pattern of practice between "the parties" in the 
sense of Article 31(3)(b) of the Vienna Convention. Accordingly, the Panel has omitted from this 
                                                
1 Russia's first written submission, para. 40. This Appendix uses the term "European Communities" to 
refer to both the European Economic Community and the European Community prior to 2009, and the term the 
"European Union" to refer to the European Union after 2009. On 1 November 1993, the Treaty on European 
Union (done at Maastricht, 7 February 1992) entered into force. On 1 December 2009, the Treaty of Lisbon 
amending the Treaty on European Union and the Treaty establishing the European Community  (done at Lisbon, 
13 December 2007) entered into force. On  29 November 2009, the WTO received a Verbal Note (WT/L/779) 
from the Council of the European Union and  the Commission of the European Communities stating that, by 
virtue of the Treaty of L isbon, as of  1 December 2009, the European Union replaces and succeeds the 
European Community.  
2 Ibid. paras. 41 -46. 
3 Article 31(3)(b) of the Vienna Convention provides that: "[t]here shall be taken into account, together 
with the context: ... [a]ny subse quent practice in the application of the treaty which establishes the agreement 
of the parties regarding its interpretation."  
4 Article 13 of the DSU provides that: "[p] anels may seek information from any relevant source and may 
consult experts to obtain t heir opinion on certain aspects of the matter. " 
5 This document examines the subsequent conduct of GATT contracting parties and WTO Members in 
GATT and WTO fora from the period of 1 January 1948 (entry into force of the GATT 1947) to 6 June 2017 
(compositi on of the Panel in this dispute). By including documents in this survey, the Panel does not intend to 
attribute any legal significance to the type of document examined or the contents of any such documents. The 
Panel notes only that it has examined such do cuments in order to conclude that this record does not reveal any 
subsequent practice establishing an agreement between the Members regarding the interpretation of 
Article  XXI in the sense of Article 31(3)(b) of the Vienna Convention. (See para. 7.80 of th e Panel Report.)  
6 See, e.g. GATT Contracting Parties, Nineteenth Session, Summary Record of the Twelfth Session held 
on 9 December 1961, SR.19/12, p. 196.  
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  survey such invocations of Article XXI made in the context of accession negoti ations to the 
GATT  1947 and WTO Agreement.7 
1.4.  Additionally, the Panel observes that on several occasions, GATT contracting parties and 
WTO Members have unilaterally invoked Article XXI in the context of notifying measures to various 
GATT and WTO bodies.8 The Panel recalls the statements of the Appellate Body in EC – Chicken Cuts  
that it is unlikely that a "concordant, common and discernible pattern" of practice can be established 
from the pronouncements of one or very few parties to a multilateral treaty.9 The Panel also recalls 
the Appellate Body's caution about deducing agreement, without more, from "a lack of reaction " or 
protest by other Members.10 Accordingly, the Panel does not consider that it can ascribe any weight 
to the silence of other GATT contracti ng parties and WTO Members as to these notifications. The 
Panel has consequently omitted from this survey such unilateral invocations of Article XXI except 
where they provoked debate . 
1.5.  The following Section proceeds to summarize the relevant conduct of GATT  contracting parties 
and WTO Members, subsequent to the conclusion of the GATT 1947, when matters pertaining to 
Article XXI were addressed in the context of the GATT and WTO.  
SUBSEQUENT  CONDUCT OF GATT CON TRACTING PARTIES AND  WTO MEMBERS  
United States v. C zechoslovakia (1949) 
1.6.  In 1948, the United States enforced its "Comprehensive Export Schedule" by imposing export 
controls on US exports going to certain parts of Europe.11 At the time, the United States licensed 
products in short supply or of military signif icance to Western European countries that were 
participating in the Marshall Plan, but exports of such products to Eastern European countries that 
did not participate in the Marshall Plan became subject to export controls. Czechoslovakia fell into 
the grou p of non -participating Eastern European countries, for which reason products destined for 
its borders were subject to export licensing controls. The United States  explained that one of the 
purposes of the export control regime was "to prevent the shipment to Eastern Europe of things that 
would contribute significantly to the military potential of that region ".12 Czechoslovakia  asserted that 
the United States' use of the term "military potential" referred to "an entirely different thing" than 
what was covered  by the terms of Article XXI(b)(ii), in particular, the term "military establishment ". 
Czechoslovakia claimed that the US export control measure was inconsistent with the basic principles 
of Articles I and XIII of the GATT. Czechoslovakia also requested al l relevant information concerning 
the administration of restrictions and the distribution of licences by the United States pursuant to 
Article XIII.13 In response,  the United States  referred to Articles XXI(b)(i) and XXI(a) of the GATT. 
The United States stated that it considered it to be "contrary to its security interest —and to the 
                                                
7 See, e.g. GATT Contracting Parties, Twenty -Sixth Session, Report by the Working Party on the 
Acces sion of the United Arab Republic , L/3362, paras. 20 -22; GATT Contracting Parties, Accession of Thailand, 
Questions and Replies to the Memorandum on Foreign Trade Regime (L/4803) , L/5300, pp. 5 and 18 -26; and 
GATT Contracting Parties, Accession of Saudi Ara bia, Questions and Replies to the Memorandum on the Foreign 
Trade R egime (L/7489 & Add.1),  L/7645/Add.1, pp. 27 and 32.  
8 See, e.g. Committee on Technical Barriers to Trade, Notification by Thailand, G/TBT/Notif.95/123, p. 1 
(referring to consumer protecti on and national security as its objective and rationale for undertaking a 
particular measure); and Committee on Market Access, Notification Pursuant to the Decision on Notification 
Procedures for Quantitative Restrictions by the Seychelles, G/MA/QR/N/SYC/1 , pp. 23, 25, 35, 36, 45 and 49.  
9 Appellate Body Report, EC – Chicken Cuts, para. 259.  
10 Ibid. para.  272. 
11 GATT Contracting Parties, Third Session, Statement by the Head of the Czechoslovak Delegation 
Mr. Zdenèk AUGENTHALER to Item 14 of Agenda (CP.3/2/R ev.2) , GATT/CP.3/33, p. 3 (referring to the official 
publication of the US Department of Commerce – "Comprehensive Export Schedule" No. 26, issued on 
1 October 1948, p. 18.)  
12 Ibid. p. 5. (referring to the statement of Mr. Willard L. Thorp made at the Gene ral Assembly in Paris 
on 4 November 1948).  
13 Ibid. pp. 5 -6. Czechoslovakia  stated that the notion of "war or military potential" is an extremely 
elastic notion, embracing the reserves of man -power and economic resources of a country including the extent 
to which both have been militarized. In addition, this concept also embraces  a time element, that is, not only 
the possibility to develop military strength but also the degree of actual preparedness. Thus, according to 
Czechoslovakia, Article XXI should be interpreted narrowly so as to avoid a situation in which "practically 
every thing may be a possible element of war potential". (Ibid.)  
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  security interest of other friendly countries —to reveal the names of the commodities that it consider s 
to be most strategic ".14  
1.7.  At the June 1949  meeting of  the GATT Council, Czechoslovakia requested a decision on whether 
the United States had failed to carry out its obligations under the GATT through its administration 
of the export licenses.15 The United Kingdom  expressed the view  that "every country must be the 
judge in the last resort on questions relating to its own security. On the other hand, every 
contracting  party should be cautious not to take any step which might have the effect of undermining 
the General  Agreement ".16 Pakistan  stated that Article XXI embodied "exceptions to all other 
provisions of the Agreement, [and] should stand by itself notwithstanding the provisions of other 
Articles including Article I, and therefore the case called for exami nation only under the provisions 
of that Article ".17 Cuba stated that  Czechoslovakia's request should be dismissed because it lacked 
a factual basis. Moreover, Cuba considered that the United States had justified its case under Article 
XXI "whose provisions  overrode those of Article I ".18  
1.8.  In response to Czechoslovakia's request for a decision under Article XXIII, only Czechoslovakia 
voted in the affirmative.19 Czechoslovakia noted that it did not consider that the contracting parties 
had made a legally  valid decision or correct interpretation of the General Agreement, and that it 
would regard itself free to take any steps necessary to protect its further interests.20 
United States – Suspension of Obligations with Czechoslovakia (1951) 
1.9.  In 1951, the United States requested the GATT Council to formally dissolve its reciprocal 
obligations with Czechoslovakia under the GATT 1947 , and to withdraw the benefits of 
trade -agreem ent tariff concessions from Czechoslovakia .21 The United States  justified this request 
by arguing that the assumption  that it was in its and Czechoslovakia's mutual interests to promote 
the movement of goods, money and people between them was no longer vali d.22 Although the 
United  States did not formally refer to Article XXI of the  GATT 1947, it argued that  "manifestations 
of Czechoslovak ill -will" toward s the United States and the progressive integration of 
Czechoslovakia's  economy into the Soviet  bloc had l ed the United States to  request that the GATT 
obligations between the two countries  be dissolved .23 Czechoslovakia  considered the 
United  States'  request to be "another attempt [by the United States] to achieve political ends by 
means of economic pressure ".24 Czechoslovakia was of the view that the "General Agreement should 
not be misused for the enforcement of political intentions" and for "forceful, unilateral imposition of 
a foreign will, by means of the violation of agreements ".25  
                                                
14 GATT Contracting Parties, Third Session, Reply by the Vice Chairman of the United States Delegation, 
Mr John W. Evans, to the Speech by the Head of the Czechoslovak Delegation under Item 14 on th e Agenda , 
GATT/CP.3/38, pp. 2 -3 and 9 -11. In addition, the US delegate provided dollar estimates of approved  
Czechoslovakian licences for different products such as electrical equipment and machinery to demonstrate 
that the United States had been highly se lective in imposing controls for security reasons and had not denied 
licences where the product was for peaceful use. (Ibid.) See also GATT Contracting Parties, Third Session, 
Reply of the Head of the Czechoslovak Delegation, Mr. Zden èk AUGENTHALER , to the  Speech of the 
Vice-Chairman of the USA Delegation, Mr. John W. Evans, under Item 14 of the Agenda,  GATT/CP.3/39, 
pp. 2-3. 
15 See GATT Contracting Parties , Third Session, Summary Record of the Twenty -Second Meeting  held on 
8 June 1949 , GATT/CP.3/SR.22 , p. 4. 
16 Ibid. p. 7; and GATT Contracting Parties , Third Session, Corrigendum to the Summary Record of the 
Twenty -Second Meeting , GATT/CP.3/SR.22/Corr.1.  
17 GATT Contracting Parties , Third Session, Summary Record of the Twenty -Second Meeting  held on 
8 June 1949 , GATT/CP.3/SR.22 , p. 6. 
18 Ibid. p. 5.  
19 Ibid. p. 9. The vote was one affirmative, 17 negative, three abstentions and two absents. (Ibid.)  
20 Ibid. p. 10.  
21 GATT Contracting Parties, Sixth Session, Statement by the United States , Termina tion of Obligations 
between the United States and Czechoslovakia under the Agreement , GATT/CP.6/5, p. 1.  
22 Ibid. According to the United States, Czechoslovakia had persecuted and harassed American firms, 
imprisoned American citizens, and confiscated the pr operty of American citizens without justification.  (Ibid.)   
23 Ibid.  
24 GATT Contracting Parties, Sixth Session, Termination of Obligations between the United States and 
Czechoslovakia under the Agreement , Statement by Czechoslovakia,  GATT/CP.6/5/Add.1, p. 2.   
25 Ibid. p. 3.   
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  1.10.   The GATT CONTRACTING PART IES declared that the United States  and Czechoslovakia were 
free to suspend, each with respect to the other, the obligations of the GATT .26 
United States – Imports of Dairy Products (1951) 
1.11.   In 1951, the Netherlands and Denmark each circulated a memorandum to the 
GATT  contracting parties noting the imposition by the United States of certain import controls on 
dairy products under Section 104 of the Defense Production Act.27 Section 104  stated that these 
import controls were "necessary for the prote ction of the essential security interests and economy 
of the United States in the existing emergency in international relations ".28 The Netherlands  and 
Denmark  considered these  restrictions to be inconsistent with Article XI of the GATT 1947.29 In 
response, the United States  circulated a memorandum noting that these objections had been 
formally communicated to Congress.30 The United States also included two statements made to the 
Senate Banking and Currency Committee by the Assistant Secretary of State and Und er Secretary 
of Agriculture recommending the repeal of Section 104 .31 The Assistant Secretary of State had 
asserted to the Committee that "the restrictions required by Section 104 appear to the Department 
clearly to violate the provisions of the [GATT] ."32 The Under Secretary of Agriculture also noted to 
the Committee that "[i]t seems unlikely that we will be able to convince th ese [objecting] countries 
that certain imports, which would at most have a limited effect on our agriculture, would endanger 
the esse ntial security interests and economy of the United States."33 The Under Secretary stated 
additionally that "if we use the security exception of the [GATT] to justify protection of a few selected 
products, this would give other countries a good excuse for us ing the same exception to justify any 
protective barriers by which they may wish to limit their imports of our farm products."34 
1.12.   At the September 1951 meeting of the GATT contracting parties, the Netherlands  and 
Denmark  reiterated their objections to the me asure.35 Denmark  also noted that it agreed with the 
remarks of the Canadian representative in an earlier speech that "it was obvious that defence 
production and national security would seem to have little connection with the import control of 
cheese ."36 Italy, New Zealand , Norway , Australia , France , Canada , Finland , the United Kingdom  and 
Sweden  also noted their opposition to the measure.37 Canada  asserted that it was difficult "to find 
any grounds for the action whatsoever ".38 The United States  did not contest that the measure 
infringed the GATT 1947, and responded that Section 104 had been recommended as a last -minute 
                                                
26 GATT Contracting Parties, Sixth Session, Item 21 – Termination of Obligations between the United 
States and Czechoslovakia under the Agreement, Declaration Proposed by the Delegation of the United States, 
GATT/C P.6/5/Add.2 .  
27 GATT Contracting Parties, Sixth Session, Item 30 – Imports Restrictions on Dairy Products into the 
United States, Memorandum submitted by the Netherlands Delegation, GATT/CP.6/26; GATT Contracting 
Parties, Sixth Session, Item 30 – Restricti ons on Imports of Dairy Products into the United States, 
Memorandum submitted by the United States Delegation, Addendum, GATT/CP.6/28/Add.1, p. 1; and 
GATT  Contracting Parties, Sixth Session, Item 30 – Restrictions on Imports of Dairy Products into the Uni ted 
States, Memorandum submitted by the Danish Delegation, GATT/CP.6/28. See also GATT Contracting Parties, 
Sixth Session, Summary Record of the First Meeting held on 17 September 1951, GATT/CP.6/SR.1, p. 4.  
28 GATT Contracting Parties, Sixth Session, Item 30 - Restrictions on Imports of Dairy Products into the 
United States, Memorandum submitted by the Danish Delegation, GATT/CP.6/28, para. 3.  
29 GATT Contracting Parties, Sixth Session, Item 30 – Imports Restrictions on Dairy Products into the 
United States , Memorandum submitted by the Netherlands Delegation, GATT/CP.6/26, p. 3; and 
GATT  Contracting Parties, Sixth Session, Item 30 – Restrictions on Imports of Dairy Products into the 
United  States, Memorandum submitted by the Danish Delegation, GATT/CP.6/28, para. 3.  
30 GATT Contracting Parties, Sixth Session, Item 30 – Restrictions on Imports of Dairy Products into the 
United States, Memorandum submitted by the United States Delegation, Addendum, GATT/CP.6/28/Add.1, 
p. 1. 
31 Ibid. pp. 4 and 7.  
32 Ibid. p. 3.  
33 Ibid. p. 6.  
34 Ibid.  
35 GATT Contracting Parties, Sixth Session, Summary Record of the Tenth Meeting held on 
24 September 1951, GATT/CP.6/SR.10, pp. 3 -4. 
36 Ibid. p. 4.  
37 Ibid. pp. 4 -7. Czechoslovakia also noted that while it did not particularly suffer from the measure in 
question, it hoped that the contracting parties would always be prepared to defend the spirit of the GATT. 
(Ibid. p. 7.)  
38 Ibid. p. 6.  
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  amendment by a committee "whi ch had limited acquaintance with international problems ".39 The 
United States asserted that the measure should be regarded as an "isolated incident and must not 
be held as an indication of any reorientation of the basic policy of the United States ".40 The 
United States noted that vigorous efforts were being made by the executive branch to secure the 
repeal of the measure, and asked that its government be given the opportunity to complete this 
action.41 The Council agreed to keep this matter on its agenda.42 
1.13.   At the October 1951 meeting of the GATT contracting parties, a resolution was adopted 
affording the United States a reasonable period of time to repeal the measure, subject to a reporting 
obligation.43 In 1952, the United States provided a report noting that S ection 104 had been revised 
but not repealed.44 At the October 1952 meeting of the GATT contracting parties, several contracting 
parties expressed their continuing opposition to the measure.45 The United States  acknowledged 
that the measure was inconsistent with the GATT 1947 and noted that it would not object to other 
contracting parties withdrawing reasonably necessary concessions.46 The GATT CONTRACTING 
PARTIES agreed to convene a Working Party to examine the issue.47 In November 1952, the Working 
Party reco mmended that the GATT contracting parties authorize the Netherlands to impose a 
retaliatory quota on wheat flour from the United States.48 This recommendation was adopted as a 
resolution at the November 1952 meeting of the GATT CONTRACTING PARTIES.49  
1.14.   The GA TT CONTRACTING PARTIES re -authorized this retaliatory quota on an annual basis 
until 1959, pursuant to the recommendations of subsequent Working Parties.50 
                                                
39 GATT Contracting Parties, Sixth Session, Summary Record of the Tenth Meeting held on 
24 September 1951, GATT/CP.6/SR.10,  pp. 7-8.  
40 Ibid. p. 8.  
41 Ibid. 
42 Ibid. p. 9.  
43 GATT Contracting Parties, Sixth Session, Summary Record of the Twenty -Seventh Meeting held on 
27 October 1951, GATT/CP.6/SR.27, p. 8. For the draft resolution, see  GATT Contracting Parties, S ixth Session, 
Item 30 – Resolution of the Contracting Parties on the United States Import Restrictions on Dairy Products 
imposed under Section 104 of the United States Defence Production Act, Proposal by the Chairman after 
Consultation with Interested Dele gations, GATT/CP.6/51. For the adopted resolution, see GATT Contracting 
Parties, Decisions, Declarations and Resolutions of the Contracting Parties at the Special Session held on 
March -April 1951 and the Sixth Session held on September -October 1951, GATT/C P/130, pp. 14 -15. 
44 See GATT Contracting Parties, United  States' Restrictions on Dairy Products, Report by the United 
States Government pursuant to the Resolution of 26 October 1951, L/19, p. 1. See also GATT Contracting 
Parties, United States' Restriction s on Dairy Products, Supplementary Report by the United States Government 
pursuant to the Resolution of 26 October 1951, L/19/Add.1.  
45 See GATT Contracting Parties, Seventh Session, Summary Record of the Tenth Meeting held on 
28 October 1952, SR.7/10, pp. 2 -8. The Netherlands, New Zealand, Denmark, Canada, Italy, Norway, Cuba, 
Australia, United Kingdom, India, Czechoslovakia and South Af rica expressed objections to the measure, and 
Pakistan expressed gratitude that the United States had taken some steps to mitigate the effects of the 
restrictions. (Ibid.)  
46 Ibid. pp. 8 -9. 
47 Ibid. p. 9.  
48 Working Party 8 on Netherlands Action under Article  XXIII:2, Report to the Contracting Parties, L/61, 
p. 3. The Netherlands had requested that it be allowed to impose an upper limit of 57,000 metric tons on the 
import of wheat flour, but the Working Party recommended that the Netherlands impose an upper li mit of 
60,000 metric tons. (Ibid. pp. 1 -3.) 
49 GATT Contracting Parties, United States Import Restrictions on Dairy Products, Draft Resolution, L/59; 
and GATT Contracting Parties, Seventh Session, Summary Record of the Sixteenth Meeting held on 
8 November 1 952, SR.7/16, p. 7.  
50 Negotiating Group on Dispute Settlement, Communication from the United States, 
MTN.GNG/NG13/W/40, fn 4 to p. 9. See also GATT Contracting Parties, United States Restrictions on Dairy 
Products, Resolution Proposed for Adoption by the CONTRACTING PARTIES, L/154; GATT Contracting Parties, 
United States Import Restrictions on Dairy Products, Resolution of 5 November 1954, L/280; GATT Contracting 
Parties, Tenth Session, Report of the Working Party, Waiver Granted to the United States in Co nnexion with 
Import Restrictions Imposed under Section 22 of the United States Agricultural Adjustment Act, L/464; 
GATT  Contracting Parties, Eleventh Session, Waiver Granted to the United States in Connexion with Import 
Restrictions Imposed under Section 2 2 of the United States Agricultural Adjustment Act, Report of the Working 
Party, L/590; GATT Contracting Parties, Twelfth Session, United States Import Restrictions on Agricultural 
Products, Report by the Working Party on Agricultural Waivers, L/754; and G ATT Contracting Parties, 
Thirteenth Session, United States Import Restrictions on Agricultural Products, Report by the Working Party on 
Agricultural Waivers, L/918.  
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  United States – Section 232 of the Trade Expansion Act  (1968) 
1.15.   In 1968, the United Kingdom  and Japan  submitted a notification to the Committee on Trade 
in Industrial Products expressing concern that certain powers given to the President of the 
United  States under the Trade Expansion Act of 1962 could disrupt foreign trade.51 During the 
Committee's first examination of the notified barriers in 196952, Japan  expressed concern over the 
"lack of a definition of 'security '" and "the wide discretion as to form of action and the lack of a time -
limit for carrying out investigations" u nder the Trade Expansion Act of 1962.53 The United  States  
responded that the legislation "was in conformity with Article XXI", and pointed out that "the 
existence of an institutional framework for national security cases could be regarded as a safeguard, 
since it ensured full consideration of the merits of each case before action was taken."54 In 1970, at 
the next examination of these notifications by a Working Group convened for this purpose, the 
Working Group concluded that there was a "divergence of view a s to the meaning and scope of 
certain essential concepts in the GATT, in particular … the scope of some of the exceptions  … 
especially Articles XX and XXI ".55 
1.16.   In 1970, the Joint Working Group on Import Restrictions was notified of a global quota 
maintained by the United States on petroleum oil products.56 At the April 1970 meetings of the 
Joint Working Group57, the European Communities  and Canada  asserted that they considered these 
restrictions to be inconsistent with the GATT 1947.58 The European Communities  did not accept that 
these restrictions could be justified by national security considerations and considered that the 
restrictions had been applied to the benefit of the petroleum industry  of the United States .59 The 
European  Communities  also asserted that a  recent US Task Force had given arguments against the 
maintenance of the system for security reasons.60 The United States  responded that the restrictions 
had been applied under Section 232 of the Trade Expansion Act of 1962 "in accordance with 
Article  XXI", given the "high degree of industrialization of the United States as well as its remoteness 
from some major oil supplying countries ".61 
                                                
See also GATT Contracting Parties, Report of the Working Party on Italian Import Restrictio ns, L/1468, 
paras. 5 -6. In 1961, a Working Party was convened to examine a variety of Italian import restrictions and 
prohibitions. Before the Working Party, Italy asserted that prohibitions or restrictions on certain items were 
justified under the "provis ions of Article XX or Article XXI of the General Agreement". (Ibid. para. 5.) The 
Working Party did not respond specifically to this invocation, but noted in general that they deplored "the 
continued use of discriminatory restrictions for which no justific ation could be found". (Ibid. para. 6.)  
51 Committee on Industrial Products, Inventory of Non -Tariff Barriers , COM.IND/4, pp. 231 -232. The 
notification referred to "escape clause tariff action", or the powers under the Trade Expansion Act of 1962 to 
increa se the rate of import duty on any item in order to effect additional protection of a domestic industry. 
(Ibid. p. 231.)  
52 See Committee on Trade in Industrial Products, Note by the Secretariat on the Meeting of the 
Committee held 19 -25 June 1969 , COM.IND/W/7, para. 1.  
53 Committee on Trade in Industrial Products, First Examination of Part 4 of the Inventory of 
Non-Tariff Barriers , Part 4 – Specific Limitations on Imports and Exports, COM.IND/W/12, p. 269.  
54 Ibid. pp. 269 -271. 
55 Committee on Trade i n Industrial Products, Draft Report of Working Group 4 on Non -Tariff Barriers, 
Examination of Items in Part 4 of the Illustrative List (Specific Limitations on Trade), Revision, 
Spec(70)48/Rev.1, para. 4; and Committee on Trade in Industrial Products, Repo rt of Working Group 4 on 
Non-Tariff Barriers, Examination of Items in Part 4 of the Illustrative List (Specific Limitations on Trade), 
COM.IND/W/49, para. 5.  
56 Joint Working Group on Import Restrictions, Import Restrictions, Addendum, Industrial Products, 
L/3377/Add.2, pp. 1 -2; and Committee on Trade in Industrial Products, Working Group 4, Specific Limitations, 
COM.IND/W/28, p. 4. The United States had limited imports to 12 per cent of domestic production. (See Joint 
Working Group on Import Restrictions, N otes on Individual Import Restrictions, COM.IND/W/28/Add.1, p. 49.) 
Notifications could be provided to the Joint Working Group by countries maintaining the restrictions as well as 
their trading partners. (Joint Working Group on Import Restrictions, Report of the Joint Working Group on 
Import Restrictions, L/3391, para. 5.)  
57 Ibid. para. 1.  
58 Committee on Trade in Industrial Products, Joint Working Group on Import Restrictions, Notes on 
Individual Import Restrictions, COM.IND/W/28/Add.1, p. 49. During these meetings, there was also debate on 
whether certain restrictions maintained by Japan and Switzerland on various fissile chemical elements could be 
justified under Article XXI. (Ibid. pp. 71 and 73.)  
59 Ibid. p. 49.  
60 Ibid. 
61 Ibid.  
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  1.17.   Although the Council agreed that the Joint Working Group on Import Restrictions should 
continue its review of import rest rictions, the Joint Working Group did not meet again after 1970.62 
Austria – Penicillin and Other Medicaments (1970) 
1.18.   In 1970, the Joint Working Group on Import Restrictions was notified of certain restrictions 
maintained by Austria on penicillin, tyrothricin and related medicaments, which took the form of 
either import licensing restrictions or quotas.63 At the April 1970 meetings of the 
Joint Working  Group64, a question was posed to Austria as to "what part of Article XXI might cover 
this restrictio n".65 Austria  responded that it regarded the restriction to be necessary under 
Article  XXI(b)(ii) of the GATT 1947 "in order to have available a local source of supply in case of 
emergency ".66 In 1971, these restrictions were considered again by the Group of  Three.67 
The Group  of Three noted Austria's explanation that the restrictions were maintained for defence 
reasons, but concluded that as "other countries find it possible to do without restrictions, it should 
… be possible for Austria to do the same ".68 In 1972, these restrictions were considered again by 
the Group on Residual Restrictions.69 At the January 1972 meeting of the Group, the United States  
recalled the recommendation of the Group of Three that Austria should eliminate the restrictions on 
these  products "as other countries did not find it necessary to maintain them for security or other 
reasons ".70 At the July 1972 session of the Committee on Trade and Development, in the context of 
discussions on the Second Report of the Group of Three71, Austria  asserted that it would not be 
possible to liberalize imports of these products "for reasons previously stated", but noted that 
"sympathetic consideration would be given in this connexion to any trade problems faced by 
developing countries."72  
                                                
62 See Group on Quantitati ve Restrictions and Other Non -Tariff Measures, Past GATT Activities Relating 
to Quantitative Restrictions and Other Non -Tariff Measures, Background Note by the Secretariat, NTM/W/2, 
para. 13.  
63 Joint Working Group on Import Restrictions, Import Restriction s, L/3377, pp. 23 -24; and Committee 
on Trade in Industrial Products, Working Group 4, Specific Limitations, COM.IND/W/28, p. 6. The Joint Working 
Group's documents from April 1970 and November 1970 label these restrictions as "global quotas", but 
documents  from June 1970 label these as "discretionary licensing" restrictions. (Joint Working Group on Import 
Restrictions, Import Restrictions, L/3377, pp. 23 -24; Committee on Trade in Industrial Products, Working 
Group 4, Specific Limitations, COM.IND/W/28, p. 6 ; and Committee on Trade in Industrial Products, Joint 
Working Group on Import Restrictions, Table of Import Restrictions (Chapters 25 -99), COM.IND/W/28/Rev.2, 
p. 8.) Later documents from the Group on Residual Restrictions appear to clarify that these prod ucts were 
subject to either  import licensing restrictions or global quotas. (See Group on Residual Restrictions, Additional 
Products Suggested for Examination, Note by the Secretariat, COM.TD/W/140, p. 14; and Group on Residual 
Restrictions, Proceedings of  the Meeting of the Group held on 24 -25 January 1972, Note by the Secretariat, 
COM.TD/85, para. 58.)  
64 Joint Working Group on Import Restrictions, Report of the Joint Working Group on Import 
Restrictions, L/3391, para. 1.  
65 Joint Working Group on Import R estrictions, Notes on Individual Import Restrictions, 
COM.IND/W/28/Add.1, p. 95.  
66 Ibid. Although the Council agreed that the Joint Working Group on Import Restrictions should 
continue to annually or biennially review such import restrictions, the Joint Wo rking Group did not meet again 
after 1970. (See Group on Quantitative Restrictions and Other Non -Tariff Measures, Past GATT Activities 
Relating to Quantitative Restrictions and Other Non -Tariff Measures, Background Note by the Secretariat, 
NTM/W/2, para. 1 3.) 
67 See Group on Quantitative Restrictions and Other Non -Tariff Measures, Past GATT Activities Relating 
to Quantitative Restrictions and Other Non -Tariff Measures, Background Note by the Secretariat, NTM/W/2, 
para. 14. The Group of Three was convened by the Committee on Trade and Development, and consisted of 
the Chairman of the contracting parties, the Chairman of the Council and the Chairman of the Committee on 
Trade and Development. (See Committee on Trade and Development, Report of the Committee on Tr ade and 
Development to the Contracting Parties, L/3487, para. 9.)  
68 Group of Three, Preliminary Report of the Group of Three, W(71)2, p. 23; and Group of Three, 
Report  of the Group of Three, L/3610, p. 21.  
69 Group on Residual Restrictions, Note on Proceed ings of the Meeting of the Group held on 
24-25 January 1972, Prepared by the Secretariat, COM.TD/85, para. 1.  
70 Ibid. para. 58.  
71 The Group of Three had noted in their Second Report that Austria had not "found it possible so far to 
liberalize imports of pe nicillin, tyrothricin and medicaments as recommended in L/3610". (Group of Three, 
Second Report, L/3710, p. 20.)  
72 Committee on Trade and Development, Proceedings of the Twenty -First Session, Note Prepared by 
the Secretariat, COM.TD/87, para. 13.  
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  1.19.   Austria cont inued to maintain certain restrictions on penicillin and related medicaments until 
December 1990, when these were abolished as part of the Uruguay Round negotiations at the 
request of the United States.73 
Sweden – Import Restrictions on Certain Footwear  (1975) 
1.20.   In 1975, Sweden  notified the GATT Council of its intention to introduce a global import q uota 
system for leather shoes, plastic shoes and rubber boots . Sweden advised that it was introducing 
this system "in order to allow time to remedy the serious dif ficulties that have arisen in this sector 
of the industry", referring to downward trends in the Swedish shoe industry that had begun in the 
1960s and had accelerated during the 1970s.74 Sweden considered that the reasons underlying this 
development were the  relatively high production costs in Sweden, combined with the traditional 
liberal trade policy pursued by the Swedish Government, which thereby encouraged and made 
possible a very substantial increase in the volume of imports. Sweden considered that " [t]he 
continued decrease in domestic production has become a critical threat to the emergency planning 
of Sweden 's economic defence as an integral part of its security policy ."75 Sweden's security policy 
necessitated the maintenance of a minimum domestic produc tion capacity in vital industries , such 
capacity being considered by Sweden to be " indispensable in order to secure the provision of 
essential products necessary to meet basic needs in case of war or other emergency in international 
relations ".76 At the Oct ober 1975 meeting of the GATT Council, several contracting parties expressed 
concern at the Swedish decision, taken at a time of high unemployment in their own countries.77 
They noted that Sweden had not provided a detailed economic justification for the me asures, and 
expressed doubts as to the justification for these measures under the GATT.78 Sweden  responded 
that it considered the measure to be taken in conformity with "the spirit of Article XXI", but added 
that it did not wish to deprive contracting parties of the possibility to consult and therefore declared 
its readiness to consult bilaterally wi th interested contracting parties even if such a consultation was 
not formally required by Article XXI.79 Many delegations reserved their rights under the GATT and 
took note of Sweden's offer to consult.80  
1.21.   In March 1977, Sweden notified the  GATT Council tha t it intended to terminate the quotas in 
respect  of leather shoes and plasti c shoes  as of 1 July 1977.81 
European Communities v. Argentina  (1982) 
1.22.   In 1982, Argentina brought to the GATT Council's attention  the suspension by the European 
Communit ies, Canada a nd Australia of imports from Argentina .82 Argentina  noted that there had 
                                                
73 See Committee on Trade and Development, Action by Governments Relevant to the Provisions of 
Part IV, Addendum, COM.TD/W/170/Add.7, p. 2; Group on Quantitative Restrictions and Other Non -Tariff 
Measures, Inventory of Non -Tariff Measures (Industrial Product s), Part IV, Specific Limitations, NTM/INV/IV, 
Inventory Number IV.A.4; Group of Negotiations on Goods, Communication from Austria, Uruguay Round – 
Market Access, MTN.GNG/NG1/W/63, p. 2; and GATT Council, Trade Policy Review Mechanism, Austria, Report 
by the Secretariat, C/RM/S/19A, para. 46.  
74 Communication from Sweden, Sweden – Import Restrictions on Certain Footwear , L/4250, paras. 1 
and 3.  
75 Ibid. para. 4. See also GATT Council, Minutes of Meeting  held on 31 October 1975 , C/M/109, p. 8; 
and GATT Council of Representatives, Thirty -First Session, Report on Work since the Thirtieth Session , L/4254, 
pp. 17 -18. 
76 Communication from Sweden, Sweden – Import Restrictions on Certain Footwear , L/4250, para. 4.  
See also GATT Council , Minutes of Meeting  held on 31 October 1975 , C/M/109, p. 9.  
77 Ibid. 
78 Ibid. See also GATT Council of Representatives, Thirty -First Session, Report on Work since the 
Thirtieth Session , L/4254, p. 18.  
79 GATT Council, Minutes of Meeting  held on 31 October 19 75, C/M/109, p. 9.  
80 Ibid. See also GATT Council of Representatives, Thirty -First Session, Report on Work since the 
Thirtieth Session , L/4254, p. 18.  
81 Communication from Sweden, Sweden – Import Restrictions on Certain Footwear , Addendum , 
L/4250/Add.1. Rel atedly, at the December 1983 meeting of the Group on Quantitative Restrictions and Other 
Non-Tariff Measures, it was recorded by the Secretariat that some delegations wondered "how a discriminatory 
restriction, such as that imposed by one contracting party  on imports of footwear, could be compatible with the 
provisions of Article XXI". (Group on Quantitative Restrictions and Other Non -Tariff Measures, Meeting held on 
5-8 December 1983, Note by the Secretariat, NTM/5, para. 27.)  
82 Communication from Argentin a, Trade Restrictions Affecting Argentina Applied for Non -Economic 
Reasons , L/5317 . 
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  been no pronouncement by the UN Security Council authorizing the application of Article XXI(c) of 
the GATT.83 Argentina stated that the measures adopted by the European Communities (other than 
the United Kingdom), Canada and Australia were entirely without justification, coming from countries 
with which the Argentine Republic had maintained relations. Such measures therefore constituted a 
hostile act and "flagrant economic aggression ".84 Further, such measures were not derived from any 
"economic or commercial issue", but from the unjustified interference in a long -standing territorial 
dispute in the region of the Malvinas Islands.85 Argentina stated that the measures adopted by the 
United K ingdom similarly had no justification, even under Article XXI(b) of the GATT, since the 
Security Council resolution which had recognized that there was a breach of the peace situated the 
problem solely in the region of the Malvinas Islands, and consequentl y the metropolitan territory of 
the United Kingdom was not affected.86 The European  Communities , Canada  and Australia  issued a 
joint communication stating  that they had taken the measures at issue in light of the situation 
addressed in UN Security Council Resolution 502, on the basis of their "inherent rights of which 
Article XXI of the General Agreement is a reflection ".87  
1.23.   At the May 1982 meeting of the GATT Co uncil, Argentina  reiterated that the measures were 
not applied for "economic and trade reasons", but were based on reasons of a "political nature and 
were meant to exert political pressure on the sovereign decisions of Argentina in order to intervene 
in a conflict in which only one of the countries was involved ".88 Argentina stressed that 
UN Security  Council Resolution 502 had not asked for or authorized the adoption of any measures 
such as the trade sanctions taken, nor were the measures justified under Art icle XXI. 
Argentina  considered that the "concerted coercive action" taken by a number of economically 
powerful countries violated the letter and the spirit of the GATT.89 The European Communities  
stressed that the measures were taken on the basis of their i nherent rights, of which Article XXI was 
a reflection, and did not require notification, justification or approval, as confirmed by 35 years of 
implementation of the GATT.90 Canada  stated that the situation which had necessitated the measures 
needed to be r esolved by appropriate action outside the GATT, as the GATT had neither the 
competence nor the responsibility to deal with the political issue that had arisen. Canada also noted 
that Article XXI did not contain a definition of "essential security interests ", and that many 
contracting parties had taken the same or similar actions for political reasons. In the present case, 
the action had been taken to encourage a peaceful settlement by temporarily suspending the normal 
operation of some provisions of the GAT T. Canada considered that the fact that the action had been 
taken was not really unprecedented; what was unprecedented was the examination of the action in 
the GATT.91 Australia  endorsed the statements of the European Communities and Canada, and stated 
that the Australian measures were in conformity with the provisions of Article XXI(c), which did not 
require notification or justification.92 
1.24.   Peru, Brazil , Uruguay , Zaire, Colombia , Dominican Republic , Cuba, Pakistan , Romania  and 
Poland  expressed opposition to,  or concern at, what they considered was a dangerous precedent 
involving the use by contracting parties of trade and economic measures for non -trade reasons, and 
which were not justified under the GATT.93 India, Yugoslavia , Indonesia , Hungary  and 
                                                
83 Communication from Argentina, Trade Restrictions Affecting  Argentina Applied for Non -Economic 
Reasons , L/5317,  para. III.  
84 Ibid. para. IV.  
85 Ibid. Argentina referred in this regard to UN Resolutions 2065 (XX), 3160 (XXVIII) and 31/49 (XXXI). 
(Ibid.)  
86 Ibid. para. V.  
87 Communication from the Commission of the European Communities, Australia and Canada, Trade 
Restrictions Affecting Argentina Applied for Non -Economic Reasons , L/5319/Rev.1, para. 1(b).  
88 GATT Council,  Minutes of Meeting held on 7 May 1982 , C/M/157, p. 2.  
89 Ibid. p. 4. 
90 Ibid. p. 10.  
91 Ibid. pp. 10 -11. 
92 Ibid. p.  11. 
93 Ibid. pp. 4 -9. For example, Brazil drew attention to subparagraph (iii) of Artic le XXI(b), and stated 
that the present case could set a dangerous precedent if the measures were considered necessary for the 
protection of essential security interests taken in time of war or other emergency in international relations, 
because such intere sts had not been demonstrated. While this matter could be considered to be an emergency 
in international relations, Brazil stressed that this was the case only in respect of the region in question, as 
defined by the Security Council, whose action had a bea ring on the GATT in light of Article XXI(c). Brazil also 
stated that it was difficult to accept that the countries in question, except for one, were taking this action in 
protection of their essential security interests. ( GATT Council, Minutes of Meeting h eld on 7 May 1982, 
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  Czechoslovakia  considered more generally that the GATT Council should approach the issues in this 
case with caution.94 Japan  also considered that the interjection of political elements into GATT 
activities would not facilitate the Organization's carrying ou t of its functions.95 
1.25.   The Philippines  noted that UN Security Council Resolution 502 referred only to Argentina and 
the United Kingdom, while the joint communication issued by the European Communities, Canada 
and Australia gave the impression that the Europe an Communities , Canada and Australia had taken 
these measures in the exercise of their inherent rights, of which Article XXI was a reflection. The 
Philippines questioned this argument as applied to the European Communities, which was not a 
contracting part y to the GATT  1947.96 Spain  considered that the actions of the United Kingdom could 
be justified under Article XXI(b)(iii), but had doubts that the same could be said for other States, 
which were not technically in the same position as the United Kingdom wi th respect to Argentina.97 
1.26.   The United States  considered that, regrettably, contracting parties had in the past used 
sanctions involving trade in the context of their security interests as they perceived them. However, 
the GATT had never been the forum for r esolution of disputes whose essence was security and not 
trade, and for good reasons, such disputes had seldom been discussed in the GATT, which had no 
power to resolve political or security disputes. Trade measures could not be "split off" as if taken in 
a vacuum, since the specific justification of international measures could not be discussed in the 
context of broadly embargoed trade.98 The United States also expressed the view that the GATT, by 
its own terms, left it to each contracting party to judge wh at was necessary to protect its essential 
security interests in time of international crisis. This was wise, since no country could participate in 
the GATT if in doing so it gave up the possibility of using any measures, other than military, to 
protect its  security interests.99 New Zealand  questioned whether the GATT was the appropriate body 
in which the circumstances that had led to the imposition of economic sanctions should be debated. 
New Zealand stated that it has also imposed sanctions on Argentina for  reasons similar to those 
given by the European Communities, Canada and Australia. New Zealand considered that it ha d an 
inherent right as a sovereign state to take such action and that such actions were in conformity with 
New Zealand's rights and obligati ons under the GATT.100 Singapore  expressed the view that the 
wording of Article XXI allowed a contracting party the right to determine the need for protection of 
its essential security interests, while also recognizing the danger of a broad interpretation of  
Article  XXI.101 Norway  also considered that the European Communities, Canada and Australia did 
not contravene the GATT in taking the measures in question.102 
1.27.   At the June 1982 meeting of the GATT Council, Argentina formally requested an interpretation 
of Artic le XXI of the GATT 1947 : (a) to know whether Article XXI exempted contracting parties from 
obligations regarding notification and surveillance procedures; (b) to determine the natural rights 
which could be inherent for contracting parties and had been invo ked in relation to Article XXI in 
general; (c) to establish whether any contracting party, including one not involved in a problem 
between two other contracting parties, could interpret "per se" that there existed an emergency in 
international relations as  referred to in Article XXI(b)(iii) and consequently take unilateral measures; 
and (d) to determine whether one or more contracting parties could take action under Article XXI(c) 
without the prior existence of a specific provision adopted by the United Nat ions authorizing the 
application of restrictive trade measures .103 This proposal was supported by a number of contracting 
parties.104 Canada  did not support the proposal, expressing the view that the case of Ghana was the 
only appropriate precedent for the present case , and asserting that it provided an example of the 
                                                
C/M/157,  p. 5.) Pakistan did not consider the situation addressed by UN Security Council Resolution 502 to be 
an "extreme" emergency in international relations, of the sort permitted under the spirit of the GATT. ( GATT 
Council, Minutes o f Meeting held on 7 May 1982, C/M/157,  p. 7.)  
94 Ibid. pp. 7 -9. 
95 Ibid. p. 9.  
96 Ibid. p. 7. 
97 Ibid. p. 6.  
98 Ibid. p. 8. 
99 Ibid. p. 8. 
100 Ibid. p. 9.  
101 Ibid. p. 7.  
102 Ibid. p. 10.  
103 GATT Council,  Minutes of Meeting held on 29 -30 June 1982 , C/M/159, pp. 15 -16.  
104 Brazil, Cuba, India, Uruguay, Colombia, Spain, Peru, Romania, Nigeria, Yugoslavia, the Philippines 
and the Dominican Republic  (with Venezuela and Ecuador as observers). (Ibid. pp. 17 -18.) 
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  notion of national security being interpreted in a broad sense by the govern ment of that country.105 
Australia  doubted the need for an interpretation of Article XXI, given its infrequent use thus far.106 
The United States  considered that debate in the Council would not serve a useful purp ose, stressing 
that the GATT had  no role in a c risis of military force.107 Japan , New Zealand  and Norway  similarly 
expressed doubts that a note interpreting Article XXI would lead to useful results.108 
The European  Communities  suggested that if the Council were to adopt a decision, the proposal 
should have  a chance of obtaining a consensus.109 The Chair subsequently reported that informal 
consultations with delegations to arrive at suggestions for resolving the matter had not resulted in 
conclusions that could lead to such suggestions.110  
The 1982 Decision reg arding Article XXI  
1.28.   On 29 November 1982, the contracting parties adopted a Ministerial Declaration in which  the 
contracting parties decided, in drawing up their work program and priorities for the 1980s, to 
"abstain from taking restrictive trade measures, f or reasons of a non -economic character, not 
consistent with the General Agreement ".111 On 30 November 1982, the 
GATT  CONTRACTING  PARTIES adopted a Decision Concerning Article XXI of the General Agreement  
(1982 Decision), setting forth procedural guidelines f or the application of Article XXI, until such time 
as the GATT  CONTRACTING PARTIES might decide to make a formal interpretation of Article XXI .112 
Under the 1982 Decision, the GATT CONTRACTING PARTIES note d that: (a) the exceptions 
envisaged in Article XXI "constitute an important element for safeguarding the rights of contracting 
parties when they consider that reasons of security are involved" ; (b) recourse to Article XXI could 
constitute an element of disruptio n and uncertainty for international trade, and "affect benefits 
accruing to contracting parties under the GATT" ; and (c)  consequently, "in taking action in terms of 
the exceptions provided in Article XXI", contracting parties should take into consideration  the 
interest s of third parties which might  be affected. The  GATT  CONTRACTING  PARTIES therefore 
undertook  to ensure that contracting parties should be informed to the fullest extent possible of 
trade measures taken under Article XXI, and note d that all con tracting parties affected by action s 
taken under Article XXI retain ed their full rights under the GATT.113 
United States – Imports of Sugar from Nicaragua  (1983) 
1.29.   In 1983, the President of the United States announced that the United States would be 
reducing N icaragua's allocation of the total import quota for sugar. The President stated that by 
denying to Nicaragua a foreign exchange benefit, the United States "hoped to reduce the resources 
available to [Nicaragua]  for financing its military build -up, and its support for subversion and 
extremist violence in the region ".114 This announcement was subsequently implemented pursuant to 
the President's authority under the Tariff Schedules of the United States to give due consideration 
to the interests of domestic produ cers in the sugar market.115 
1.30.   Following the announcement, Nicaragua requested consultations with the United States, 
arguing that the measure would create "serious adverse trade effects ".116 The consultations did not 
achieve a mutually satisfactory solution, and  Nicaragua subsequently requested the establishment 
of a panel.117 At the July 1983 meeting of the GATT Council, the United States  stated that "[t]he 
motives for the measure were not strictly trade considerations; and it followed that any examination 
                                                
105 GATT Council,  Minutes of Meeting held on 29-30 June 1982, C/M/159,  p. 18. For the statements of 
Ghana referred to by Canada, see, e.g. GATT Contracting Parties, Nineteenth Session, Summary Record of the 
Twelfth Session held on 9 December 1961, SR.19/12, p. 196.  
106 GATT Council,  Minutes of Meeting held on 29 -30 June 1982, C/M/159,  p. 19.  
107 Ibid. 
108 Ibid. p. 20.  
109 Ibid. p. 21.  
110 GATT Council,  Minutes of Meeting held on 2 November 1982 , C/M/162 , p. 18.  
111 GATT Contracting Parties, Thirty -Eighth Session, Ministerial Declaration adopted on 29 November 
1982, L/5424, p. 3.  
112 Decision Concerning Article XXI of the General Agreement of 30 November 1982,  L/5426.  
113 Ibid. 
114 GATT Panel Report, US – Sugar Quota , L/5607, para. 2.3.  
115 Ibid. 
116 Communication from Nicaragua, US – Sugar Quota , L/5492.  
117 Communication from Nicaragua, US – Sugar Quota , Recourse to Article XXIII:2 by Nicaragua , 
L/5513.  
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  of this  matter in purely trade terms would be sterile or disingenuous."118 The United States also 
questioned the utility of resolving this issue by establishing a panel, stating that " [a] political solution  
could resolve the trade aspect of this dispute; but a GATT panel could not appropriately examine or 
assist in the resolution of the political or security issues  that lay at its core."119 India considered that 
the Council should follow established GATT practice and establish a panel, as Nicaragua had 
requested a panel after fulfilling the proper procedures and that "[i]t was not for the Council to judge 
the merits of the case at this stage."120  
1.31.   The Council agreed to establish a panel121, and the panel's composition and terms of reference 
were announce d at the October 1983 meeting of the GATT Council.122 
1.32.   Before the panel, Nicaragua  argued that the United States had violated Articles II, XI and XIII 
and Part IV of the GATT 1947 by reducing its sugar quota below the level agreed upon in the United 
States sc hedule of concessions.123 Nicaragua also cited the "fundamental principle" embodied in 
paragraph 7(iii) of the 1982 Ministerial Declaration that "no contracting party should use trade 
measures to exert pressure for the purposes of solving non -economic proble ms."124 In response, the 
United States  argued  that it was "neither invoking any exceptions under the provisions of the 
General  Agreement nor intending to defend its actions in GATT terms ".125 In the view of the 
United  States, while the action did affect trade,  it was not taken for trade -policy reasons.126 
Consequently, any attempt to discuss the issue in purely trade terms, "divorced from the broader 
context of the dispute", would be disingenuous.127 The panel considered that within its terms of 
reference, it could  examine the measures "solely in the light of the relevant GATT provisions, 
concerning itself with only the trade issues under dispute", and therefore did not consider 
Article  XXI.128 The panel proceeded to conclude that the reduced sugar quota was inconsist ent with 
the United States' obligations under Article XIII:2 of the GATT 1994, and exercised judicial economy 
over Nicaragua's other claims.129  
1.33.   At the March 1984 meeting of the GATT Council,  Nicaragua  commended the panel's findings 
and added that it had bee n perplexed by "the US reasons for adopting the measure, the refusal to 
have recourse to exceptions provided under the General Agreement, and the questioning of the 
GATT's competence to examine this case".130 Nicaragua "wondered what would the United States 
consider to be the competent forum for discussing the justification of a measure designed to restrict 
access to a market which had the effect of reducing export earnings ".131 The United States  reiterated 
its view that examination of the matter in purely trad e terms within the GATT was disingenuous, 
noting that "the reduction in Nicaragua's sugar imports had not secured any economic or trade 
benefit for the United States ."132 The United States added that while it would not object to the 
adoption of the report, a  resolution of its broader dispute with Nicaragua would be required before 
it would remove the contested measure.133 Venezuela , Mexico  and Argentina  considered that the 
US measure had contravened the Ministerial Declaration134, and Cuba, the Dominican Republic  and 
Switzerland  criticized the United States for using economic measures to secure political objectives.135 
Several contracting parties including Venezuela , Mexico  and Brazil  and the United Kingdom, on 
behalf of Hong Kong  reiterated the importance o f positively resolving the case through the 
                                                
118 GATT Council , Minutes of Meeting held on  12 July 1983 , C/M/170, p. 12.  
119 Ibid. 
120 Ibid.  
121 Ibid. p.  13. Colombia, Spain, Brazil, Singapore, Argentina, Switzerland and Finland (on behalf of the 
Nordic countries) supported Nicaragua's request for a panel. (Ibid.)  
122 GATT Council , Minutes of Meeting held on  3 October 1983 , C/M/171 , p. 12.  
123 GATT Panel Report, US –Sugar Quota , L/5607, para. 3.1. 
124 Ibid. para. 3.9.  
125 Ibid. para. 3.10. 
126 Ibid. 
127 Ibid. para.  3.11. 
128 Ibid. para.  4.1. 
129 Ibid. paras. 4.3-4.6. 
130 GATT Council , Minutes of Meeting held on  13 March 1984 , C/M/176, p. 8.  
131 Ibid. 
132 Ibid. 
133 Ibid. 
134 Ibid. p.  9. 
135 Ibid. p.  10. 
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  GATT's  dispute settlement system.136 Argentina  added that it could not understand why the Panel 
had not examined the motivations for the measure outside of trade considerations, and that it 
"regretted that the Unit ed States had been unable to advance any argument based on the 
General  Agreement to justify its measure ".137 Poland  stated its firm belief that no measure having 
adverse trade implications for another contracting party could be dismissed as irrelevant for the 
GATT.138  
1.34.   The Council took note of these statements and adopted the panel's report.139  
1.35.   At the May 1984 meeting of the GATT Council, Nicaragua  noted that the United States had 
recently increased its total sugar import quota without allocating any share of th is increase to 
Nicaragua.140 Nicaragua asked the United States to inform the Council of its intentions regarding the 
recommendations of the contracting parties. The United States  maintained its earlier position that 
the lifting of the measures would first re quire a "resolution of the broader dispute ".141 At the 
November 1984 meeting of the GATT Council, Nicaragua  noted that not only had the United States 
failed to implement the panel's recommendations, it had once again applied a measure limiting 
Nicaragua's su gar quota .142 Nicaragua noted that "[i]f the measure corresponded to security 
considerations, Nicaragua wondered why the United States had not invoked Article XXI."143 The 
United States  maintained its previous position.144 The Council took note of these statements.145  
European Communities v. Czechoslovakia (1985) 
1.36.   In 1985, Czechoslovakia  notified the Group on Quantitative Restrictions and Other Non -Tariff 
Measures that it considered Italy and the United Kingdom to be maintain ing a discriminatory 
embargo on exports of certain electronic products to Czechoslovakia.146 The United Kingdom  and 
Italy asserted that the measures were maintained under Article XXI(b) of the GATT 1947.147 In 
1986,  Czechoslovakia  submitted an additional notif ication, responding to the United Kingdom that 
"the imports of computers and related equipment  … mentioned in the Czechoslovak notification are 
not related to either fissionable materials or traffic in arms or to traffic in other goods carried on for 
the purposes of supplying a military establishment."148 Czechoslovakia also asserted that "[t]he two 
contracting parties in this case cannot be said to be in a state of belligerency or other emergency 
situation."149 Czechoslovakia considered that the United Kingdom  had not demonstrated "a genuine 
causal link between its security interests and the trade action taken", and therefore did not consider 
the action to be in conformity with the GATT 1947.150 
                                                
136 GATT Council,  Minutes of Meeting held on  13 March 1984,  C/M/176,  pp. 8-9. 
137 Ibid. p.  9. 
138 Ibid. p.  10. 
139 Ibid. p.  11. Argentina, Australia, Brazil, Cuba, Colombia, Poland, India, Norway on behalf of the 
Nordic countries, Uruguay, Dominican Republic, United Kingdom on behalf of Hong Kong, Hungary, Portugal, 
Peru, Jamaica, Austria, Egypt, Romania, Switzerland, Chile, Singapore, Nigeria, Yugoslavia, Canada, Trinidad 
and Tobago, Senegal and Zaire supporte d the adoption of the panel's report. (Ibid. p. 9.)  
140 GATT Council , Minutes of Meeting held on  15-16 May 1984 , C/M/178, p. 27.  
141 Ibid. Argentina  and Cuba expressed their concern with the United States' failure to comply with the 
recommendations . (Ibid. pp.  27-28.) 
142 GATT Council , Minutes of Meeting held on 6 -8 and 20 November 1984 , C/M/183, p. 65.  
143 Ibid. 
144 Ibid. Several contracting parties  such as Argentina , Brazil , Cuba, Hungary , India, Uruguay  and 
Poland  expressed their concern with the  United States' ongoing failure to comply with the recommendations . 
(Ibid. pp. 65 -66.) 
145 Ibid. p.  66. 
146 Group on Quantitative Restrictions and Other Non -Tariff Measures, Inventory of Non -Tariff Measures 
(Industrial Products), Addendum, NTM/INV/I -V/Add.10, Inventory Numbers IV.B.17.1 (p. 59 of PDF file) and 
IV.B.18 (p. 61 of PDF file). Czechoslovakia characterized the measure maintained by Italy as an "embargo" on 
exports of electronic systems to Czechoslovakia, and the measure maintained by the United Kingd om as an 
embargo on exports of computers and related equipment. Italy responded that there was no embargo, but an 
inter-ministerial Committee which examined each export license application. (Ibid.)  
147 Ibid.  
148 Group on Quantitative Restrictions and Other No n-Tariff Measures, Inventory of Non -Tariff Measures 
(Industrial Products), Addendum, NTM/INV/I -V/Add.12, Inventory Number IV.B.18  (p. 9 of PDF file).  
149 Ibid. 
150 Ibid. 
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  United States v. Nicaragua  (1985) 
1.37.   In 1985, the United States  circulated a communication stating that  it had imposed a complete 
import and export embargo on Nicaragua and declared a national emergency due to the 
extraordinary threat to national security posed by Nicaragua's policies and actions .151 At a special 
meetin g of the GATT Council requested by Nicaragua in May 1985, Nicaragua  argued that this 
measure "violated both the general principles and certain specific provisions" of the GATT 1947.152 
Nicaragua argued that the US Administration, in declaring a national emer gency to deal with a 
perceived threat by Nicaragua, seemed to have lost any sense of proportion and was trying to 
override the principles of international trade.153 Nicaragua said that it was absurd to suggest that it 
could pose a threat to the national security of the United States, pointing to the relative power and 
size of the two countries as well as the absence of any "armed conflict between the United States 
and Nicaragua ".154 Nicaragua also noted that "the United States, in stating to the Se curity Council 
that its measures were principally intended to prevent Nicaragua from having the benefit of trading 
with the United States, had thereby acknowledged that this was not a matter of national security 
but one of coercion."155  
1.38.   The United States  stated that it took the measures for "national security" reasons and that 
the measures fell within the exception contained in Article XXI(b)(iii).156 The United States 
emphasized that Article XXI left it to each contracting party to judge what measures it cons idered 
necessary for the protection of its essential security interests.157 According to the United States, it 
was not for the GATT to approve or disapprove this judgement.158 The United States also considered 
that GATT , as a trade organization, had "no compet ence to judge such matters" and that its 
effectiveness in addressing trade issues would only be weakened if it became a "forum for debating 
political and security issues" .159 Nicaragua  responded that Article XXI "was not to be applied in an 
arbitrary fashion " and required " some correspondence between the measures adopted and the 
situation giving rise to their adoption ".160 Nicaragua also considered that "since this matter involved 
commercial and trade measures, the GATT, as the institution responsible for the c onduct of 
international trade, should express a view on this issue ."161 
1.39.   Cuba, Argentina , Peru, Brazil , Spain , Czechoslovakia , Romania , Yugoslavia  and Portugal  
considered that the measures taken by the United States were incompatible with Article 7(iii) of th e 
1982 Ministerial Declaration162, and Poland , Chile, Hungary , Austria , Sweden , Switzerland , Jamaica  
                                                
151 Communication from the United States , US – Nicaraguan Trade, L/5803. The measures were 
embodied in an Executive Order issued by President Reagan, and comprised: (a)  a prohibition on all imports 
into the United States of goods and services of Nicaraguan origin; (b)  a prohibition on all exports from the 
United States of goods to or destined for Nicaragua; (c) a prohibition on Nicaraguan air carriers engaging in air 
transport to or from points in the United States, and transactions relating thereto; and (d) a prohibition on 
vessels of Nicaraguan registration from entering the Unite d States' ports, and a prohibition on transactions 
related thereto. (Communication from the United States , US – Nicaragua n Trade, L/5803, p. 2.)  
152 GATT Council , Minutes of Meeting held on 29 May 1985 , C/M/188, p. 2. Nicaragua specifically alleged 
that the US measures contravened Articles I, II, V, XI, XIII, XXXVI, XXXVII and XXXVIII of the GATT 1947. 
Nicaragua also alleged that US measures violated the spirit and provisions "of the UN Charter, the resolutions 
of the UN General Assembly and Security Council,  the decisions of the [ICJ], the Charter of the Organization of 
American States, and other international instruments, including the Bilateral Treaty of Friendship, Commerce 
and Navigation". (Ibid. p. 4.)  
153 Ibid. p. 3.  
154 Ibid. Nicaragua also criticized the refusal from the United States to enter into dialogue, as well as 
"the US policy of force, serious threats of increased military aggression and disregard of international legal 
provisions and of the bodies and tribunals responsible for ensuring their obser vance". (Ibid. p. 2.)  
155 Ibid. p.  4. Nicaragua argued that "the measures had been taken as a form of coercion for political 
reasons, and formed part of a US policy of political, financial, trade and military aggression against Nicaragua", 
which included the  mining of the country's ports and campaigns to prevent the harvesting of coffee and other 
products. (Ibid. p. 2. ) 
156 Ibid. p.  4. 
157 Ibid. pp. 4 -5. 
158 Ibid. p.  5. 
159 Ibid. pp. 4-5. 
160 Ibid. p.  16. 
161 Ibid. 
162 Ibid. pp. 5 -7, 9, 10 and 12. See also Ministerial Declaration adopted on 29 November  1982, L/5424 
(1982 Ministerial Declaration). Paragraph 7(iii) of the 1982 Ministerial Declaration provides that the GATT 
CONTRACTING PARTIES, in drawing up the work progr amme and priorities for the 1980s, undertake, 
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  and China , as an observer, criticized the use of economic measures to secure political objectives.163 
Argentina  and Brazil  additionally asserted that the measures were incompatible with the Charter of 
the United Nations (UN Charter), and Argentina  cited incompatibility with the 1982 Decision.164  
1.40.   Cuba, Poland  and Chile asserted that the GATT was the proper forum for discussing d isputes 
with trade implications.165 Poland  noted that this was required to ensure that "GATT's conciliatory 
functions and responsibilities have practical meaning."166 Chile did not consider that an invocation 
of Article XXI implied that the trade consequences of measures taken under it could not be discussed 
under the GATT.167 Hungary  noted that while ideally politics and trade should be kept separate, a 
total separation was not realistic and was "evidenced by the provisions in the General Agreement 
covering case s in which political and commercial considerations were in opposition ".168  
1.41.   Canada  conversely considered that "this was fundamentally not a trade issue", and urged the 
two parties to seek a solution outside of the GATT context.169 The European Communities  stated 
that its concern was to protect the GATT multilateral system from being damaged by any 
ill-considered development of a situation that could neither be dealt with nor settled in the GATT 
framework.170 The European Communities agreed  that the GATT was not t he appropriate forum 
because the US measures were only part of a broader situation and the GATT had never had the 
authority or competence to settle "disputes essentially linked to security ".171 Japan  agreed that even 
though "the issue now before the Council obviously had a trade aspect, that aspect stemmed from 
deep roots and it had to be admitted that GATT was not competent to g rapple with those roots ".172 
1.42.   Spain  and Czechoslovakia  considered that the m easures taken by the United States could not 
be justified under the provisions of Article XXI.173 Cuba and Peru argued that Nicaragua could not 
possibly threaten the security of the United States, and Cuba considered that the United States was 
"putting forwa rd various political pretexts , including a reference to Article XXI " in order to "punish 
Nicaragua for not serving US  interests ".174 Cuba asserted that "recourse to Article XXI had to be 
backed by certain facts" to effectively guarantee against an abuse of t he GATT system.175 
Brazil  noted  that the right to invoke Article XXI "should only be exercised in the light of other 
interna tional obligations such as those assumed under the UN Charter ".176 Czechoslovakia  stated 
that the United  States' interpretation of Artic le XXI would enable any contracting party wanting to 
justify introduction of certain trade measures against any other contracting party to simply refer to 
Article  XXI and declare that its security was threatened. On the contrary, Czechoslovakia considered 
that Article XXI " dealt with emergency situations and therefore had to be applied according to the 
specific provisions in paragraphs b(i), (ii), or (iii) ".177  
1.43.   India argued that "a contracting party having recourse to Article XXI(b)(iii) should be able to 
demonstrate a genuine nexus between its security interests and the trade action taken; the security 
exception should not be used to impose economic sanctions for non -economic purposes" .178 India did 
not consider that the United States had established such a ne xus.179  
1.44.   Sweden  agreed with the United States that it was "up to each country to define its essential 
security interests under Article XXI", but noted that "contracting parties should be expected to 
                                                
individually and jointly "to abstain from taking restrictive trade measures, for reasons of a non -economic 
character, not consistent with the General  Agreement ". 
163 GATT Council , Minutes of Meeting held on 29 May 1985 , C/M/188,  pp. 5-15. 
164 Ibid. pp. 6-7. The 1982 Decision is discussed in paragraph 1.28 of this Appendix.  
165 Ibid. pp. 5-8. 
166 Ibid. p. 8. 
167 Ibid. 
168 Ibid. 
169 Ibid. p. 12.  
170 Ibid. p. 13.  
171 Ibid. 
172 Ibid. p. 14.  
173 Ibid. pp. 9 -10. 
174 Ibid. pp. 5-6. 
175 GATT C ouncil , Minutes of Meeting held on 29 May 1985 , C/M/188,  p. 5. 
176 Ibid. pp. 7 -8. 
177 Ibid. p.  10. 
178 Ibid. pp. 10-11. 
179 Ibid. p. 11.  
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  exercise their rights under that Article with utmost prudence."180 Finland , Switzerland , Norway , 
Iceland , Egypt  and Portugal  expressed similar views.181 Sweden  further considered that the 
United  States had not shown such prudence in choosing to give "a too far -reaching interpretation" 
of Article  XXI.182 The Europe an Communities  agreed  that Article XXI "left to each contracting party 
the task of judging what was necessary to protect its essential security interests", but noted that 
such discretion should be exercised in a spirit of "responsibility, discernment, mode ration, ensuring 
above all that discretion did not mean arbitrary application ".183  
1.45.   Australia  stated that the United  States was permitted under Article XXI "to take action of this 
kind with no requirement to justify such action" , noting that the UN Security Council was the 
appropriate forum for the discussion of such issues. Nevertheless, Australia believed that contracting 
parties should avoid any action which could threaten GATT's credibility and undermine attachment 
to the principles of an open multilatera l system. Australia considered that, while in principle, 
Nicaragua retained its GATT rights, in practical terms the US action had rendered this right 
inoperative.184 Canada  expressed a similar view.185  
1.46.   Nicaragua circulated a draft decision to the contracting parties for their consideration, but the 
Council agreed to defer any determination on this matter to its next meeting.186 Nicaragua 
subsequently requested consultations with the United States in relation to this matter.187 At the 
July 1985 meeting of the GATT Council, Nicaragua requested the establishment of a panel.188 The 
United  States  reiterated the futility of resolving this issue through GATT procedures, as the trade 
effects of the measure had already been acknowledged and the export embargo had removed any 
opportunity for Nicaragua to retaliate.189 The United States considered  Nicaragua's request for a 
panel as "a further attempt … to politicize GATT ".190 The United States also contended that under 
Article XXI(b) a panel "could neither examine the national security reasons for the US action, nor 
determine the appropriateness of invoking the security exception ".191 The European Communities  
considered that each party had to judge on its own whether to invoke Article XXI. The 
European  Communities questio ned what a panel could do in this case, since it could not interpret 
Article XXI and the United States had already recognized trade prejudice.192 The 
European  Communities said that it could not oppose a contracting party's request for a panel, 
provided the t erms of reference clearly did not include interpretation of Article XXI.193 Canada  
expressed full agreement with the United States that only the individual contracting party itself could 
judge questions involving national security, noting that a panel could not make that judgment.194 
Nevertheless, Canada considered that measures taken under Article XXI could have trade effec ts 
which could be considered by a GATT  panel . Canada considered that every contracting party had a 
right to req uest and to receive a hearin g of a panel on any GATT -related issue, even where a panel 
was unlikely to be able to make a useful finding. Canada agreed that a panel would serve no useful 
purpose in the present case, since nullification and impairment of benefits had already been admit ted 
and Nicaragua had  no means to retaliate under Article XXIII:2.195 The Council agreed to engage in 
informal consultations and defer any determination on this matter to its next meeting.196  
                                                
180 GATT Council , Minutes of Meeting held on 29 May 1985 , C/M/188,  p. 10.  
181 Ibid. pp. 11 -15. 
182 Ibid. p. 10.  
183 Ibid. p. 13.  
184 Ibid. pp. 12 -13. 
185 Ibid. p. 12.  
186 Ibid. p. 17.  
187 Communication from Nicaragua , US – Nicaraguan Trade , L/5847.  
188 GATT Council, Minutes of Meeting held on 17 -19 July 1985 , C/M/191, p. 41. Colombia , Argentina , 
Poland , Uruguay , Peru, Brazil , Cuba, Chile, Spain , Romania , Jamaica , India, Hungary , Yugoslavia , Trinidad  and 
Tobago  and Czechoslovakia , as well as Venezuela  and Mexico  as observer s, supported Nicaragua's request to 
establish a panel. (Ibid. p. 42.)  
189 Ibid. p. 41.  
190 Ibid. p. 42.  
191 Ibid. p. 43.  
192 Ibid. p. 44.  
193 Ibid. 
194 Ibid. p. 45.  
195 GATT Council, Minutes of Meeting held on 17 -19 July 1985,  C/M/191, p. 45.  
196 Ibid. p. 46.  
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  1.47.   At the October 1985 meeting of the GATT Council, t he United States agreed to the 
establishment of a panel on the condition that it "could not examine or judge the validity of or 
motivation for the invocation of Article XXI :(b)(3) by the United States ".197 At the March 1986 
meeting of the GATT Council, the panel  was establis hed with the aforementioned carve -out from its  
terms of reference.198  
1.48.   Before the panel, Nicaragua  argued that the embargo imposed by the United States had 
deprived Nicaragua of benefits under Articles I:1, II, V, XI:1, XIII, XXIV, XXXVI, XXXVII and XXXVIII 
of the GATT 1947.199 Nicaragua argued that the embargo therefore constituted a prima facie  
nullification or impairment of benefits accruing to Nicaragua under the General Agreement. 
Nicaragua stressed that whether the invocation of Article XXI(b)(iii) was justified or not, benefits 
accruing to Nicaragua under the General Agreement had been seri ously impaired or nullified as a 
result of the embargo. Nicaragua argued that it had been recognized both by the drafters of the 
General Agreement and by the contracting parties  that an invocation of Article  XXI did not prevent 
recourse to Article XXIII. N icaragua said that it had no reason to expect that an embargo would cut 
off all trade relations with the United States when the United  States'  tariff concessions were 
negotiated (i.e. between 1949 and 1961) and that the embargo had in fact nullified or imp aired the 
benefits accruing to Nicaragua under all of the trade -facilitating provisions of the General 
Agreement.200 
1.49.   The United States  reiterated its position  that its actions were valid under Article  XXI, but that 
the panel could not in any event examine th e validity of , nor the motivation for,  its invocation of 
Article  XXI(b)(iii)  within its terms of reference.201 The United States agreed that a measure not 
conflicting with obligations under the General Agreement could be found to cause nullification and 
impairment, and that an invocation of Article XXI did not prevent recourse to the procedure of 
Article  XXIII. However, the United States argued that nullification or impairment could not be 
presumed in cases in which Article XXI was invoked.202 Rather, this was dependent on the facts and 
circumstances of the particular case, including the expectations that the contracting party bringing 
the complaint could reasonably have had when it negotiated its tariff concessions. The United States 
did not consider it meaning ful for the Panel to propose in the present case a ruling on the question 
of whether nullification or impairment could be caused through measures under Article XXI.203 
1.50.   The panel stated that it had not considered the question of whether the terms of Article X XI 
precluded it from examining the validity of the United States' invocation of that Article because this 
examination was precluded by its mandate.204 The panel  concluded that as it was not authorized to 
examine the justification for the United States' invocation of a general exception to the obligations 
under the General Agreement , "it could find the United States neither to be complying with its 
obligati ons under the General Agreement  nor to be failing to carry out its obligations under that 
Agreement ."205 In examining the embargo in the li ght of Article XXIII:1(b), the p anel noted the 
question of whether the nullification or impairment of the trade opportunities of Nicaragua through 
the embargo constituted a nullification or impairment of benefits accruing to Nicaragua within the 
meaning of Article XXIII:1(b). In the pane l's view, this question raised basic interpretive issues 
relating to the concept of non -violation and nullification and impairment which had not been 
addressed by the drafters of the GATT or decided by the contracting parties . Against this background, 
the panel felt that it would only be appropriate for it to propose a ruling on these issues if such a 
                                                
197 GATT Council , Minutes of Meeting held on 10 October 1985 , C/M/192, p. 6.  
198 GATT Council , Minutes  of Meeting held on 12 March 1986 , C/M/196, p. 7. The agreed terms of 
reference were as follows: "To examine, in the light of the relevant GATT provisions, of the understanding 
reached at the Council on 10 October 1985 that the Panel cannot examine or judg e the validity of or motivation 
for the invocation of Article XXI:(b)(3) by the United States, of the relevant provisions of the Understanding 
Regarding Notification, Consultation, Dispute Settlement and Surveillance (BISD 26S/211 -218), and of the 
agreed D ispute Settlement Procedures contained in the 1982 Ministerial Declaration (BISD 29S/13 -16), the 
measures taken by the United States on 7 May 1985 and their trade effects in order to establish to what extent 
benefits accruing to Nicaragua under the General  Agreement have been nullified or impaired, and to make such 
findings as will assist the CONTRACTING PARTIES in further action in this matter ". (Ibid.)  
199 GATT Panel Report, US – Nicaraguan Trade , L/6053 (unadopted), para.  4.3. 
200 Ibid. para. 4.8.  
201 Ibid. para. 4.6.  
202 Ibid. para. 4.9.  
203 Ibid.  
204 Ibid. para. 5.3.  
205 Ibid. 
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  ruling would enable the contracting parties  to draw practical conclusions from it in the case at 
hand.206 The p anel reasoned that, as long as the embargo was no t found to be inconsistent with the 
General Agreement, the United States would be under no obligation to follow a recommendation by 
the contracting parties under Article XXIII:2 to withdraw the embargo.207 Moreover, even if it were 
found that the embargo nul lified or impaired benefits accruing to Nicaragua independent of whether 
it was justified under Article XXI, the contracting parties could, in the circumstances of the present 
case, take no decision under Article XXIII:2 that would re -establish the balance  of advantages which 
had accrued to Nicaragua under the General Agreement prior to the embargo. In the ligh t of all 
these  considerations, the p anel decided not to propose a ruling on the basic question of whether 
actions under Article XXI could nullify or impair GATT benefits of the adversely affected contracting 
party.208 However, the panel noted that embargoes such as those imposed by the United  States, 
independent of whether they were justified under Article XXI, ran counter to the basic aims of the 
GATT 1 994 and encouraged each contracting party to "carefully weigh[] its security needs against 
the need to maintain stable trade relations ".209 
1.51.   At the November 1986 meeting of the GATT Council, Nicaragua  expressed disappointment 
that the panel report had neither  determined the level of nullification or impairment of 
Nicaragua's  rights under the GATT 1947, nor made any specific recommendations.210 Nicaragua also 
noted that it "remained clear that the United States had imposed the embargo not for reasons of 
security,  but for political coercion" and noted that the case involved a "clear misuse of Article XXI ".211 
Nicaragua requested that the Council recommend a removal of the embargo, authorize special 
support measures to compensate Nicaragua for damage caused by the emb argo, and prepare an 
interpretive note on Article XXI which would reflect the elements of this case.212 Nicaragua also 
asked that in making such recommendations, the Council give consideration to the ruling of the 
International Court of Justice (ICJ) "as pro of that the conditions necessary for invoking Article XXI 
had not been met ".213 Nicaragua added that it could not support the adoption of the report until the 
Council was in a position to make such recommendations.214  
1.52.   The United States  said that the panel had  reached sound conclusions in a difficult situation 
and recommended that the Council adopt the report.215 The United States stated that it continued 
to believe that this dispute should never have been brought to GATT. There were and had been 
many instances o f trade sanctions that had been imposed by various contracting parties for reasons, 
it could be surmised, of national security. Rarely had those situations even been raised in GATT, and 
never before had a party insisted on a panel, because contracting part ies, including those against 
whom sanctions had been imposed, had tacitly recognized that GATT, by its traditions, its 
competence, and the terms of Article XXI, could not help resolve such matters, and that pressing 
the issue would only weaken GATT's inten ded role.216 In this regard, the United States observed that 
"GATT was not a forum for examining or judging national security disputes. When a party judged 
trade sanctions to be essential to its security interests, it should be self -evident that such sanctio ns 
would be modified or lifted in accordance with those security considerations."217 The Unit ed States 
also agreed with the p anel's decision not to address the "novel and delicate question of nullification 
and impairment in a situation of Article XXI trade s anctions" when the outcome of such question 
"could create a precedent of much wider ramifications for the scope of GATT rights and obligations 
                                                
206 GATT Panel Report, US –Nicaragua n Trade , L/6053 (unadopted),  para. 5.6.  
207 Ibid. para. 5.9.  
208 Ibid. para. 5.11. 
209 Ibid. para. 5.16.  
210 GATT Council , Minutes of Meeting held on 5 -6 November 1986 , C/M/204, p. 7. Uruguay, Nigeria, 
Argentina, Colombia, Cuba, Peru, Hungary, Trinidad and Tobago, Czechoslovakia, Yugoslavia, Romania, Poland, 
India, Mexico and Tanzania, as an observer, supported Nicaragua's request to lif t the embargo. Uruguay, 
Argentina, Colombia, Cuba, Peru, Hungary, Czechoslovakia, Yugoslavia and Romania supported Nicaragua's  
request to take measures to compensate Nicaragua. Uruguay , Nigeria, Argentina, Colombia, Czechoslovakia, 
Yugoslavia and Romania supported a re -examination of  Article XXI  in depth during the Uruguay Round 
negotiations. (Ibid. p. 10.)  
211 Ibid. p.  8. 
212 Ibid. 
213 Ibid. p. 7.  
214 Ibid. p. 17.  
215 Ibid. pp. 8 -10. 
216 Ibid. p. 8. 
217 Ibid. 
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  but which would serve no useful purpose in the particular matter before the [p]anel".218 The 
United  States consider ed that nullification or impairment in situat ions where no GATT violation had  
been found was a "delicate issue, linked to the question of 'reasonable expectations '."219 According 
to the United States, applying the concept of "reasonable expectations" to a case of trade sanctions 
motivated by national security considerations would be "particularly perilous", since at a broader 
level, those security considerations would ne vertheless enter into expectations.220  
1.53.   Chile noted that "Article XXI should be invoked  only when absolutely necessary to protect 
national security interests , and not to punish another contracting party."221 Nigeria  stated that 
Article  XXI could only be invoke d "in cases of a state of war or emergency", and that neither was 
the case with the US embargo as "[t]he ICJ had found no evidence that Nicaragua's policies 
threatened the United States and thus had found no justification for the embargo."222 
Argentina  asser ted that it was clear to the international community at large that Article XXI had 
been improperly invoked and that "the ICJ had confirmed that the US embargo was not compatible 
with GATT."223 Peru rejected the use of trade measures for political coercion "u nless such action was 
approved by the UN Security Council" and noted that the UN General Assembly had condemned the 
embargo.224 Colombia , Trinidad and Tobago  and Czechoslovakia  expressed similar views.225 
Sweden  expressed concern that the restricted terms of r eference in this dispute should not prejudice 
the mandate of future panels, noting that panels "should be able to examine all relevant 
GATT  Articles, including Article XXI ".226 Jamaica  also expressed concern that the restricted terms of 
reference had been ag reed upon without prior examination by the contracting parties.227  
1.54.   Hungary  argued that Article XXI provided discretion to the contracting parties to judge 
whether circumstances warranted its invocation, but noted that "the most powerful trading nations 
should demonstrate the greatest self -restraint ."228 The European Communities  reiterated its view 
that the United States "alone had the sovereign right to determine its national security interests", 
and noted that Article XXI was an "essential safety valve" which  the European Communities did not 
support being subject to further interpretation, discussion, or negotiation  either in the Council or in 
the new round .229 That said, the European Communities also considered that the discretionary rights 
inherent in Articl e XXI should not be arbitrarily invoked.230 Several GATT contracting parties also 
reiterated views expressed at earlier meetings of the Council.231  
1.55.   The Council concluded that it could not adopt the panel's report without consensus, but agreed 
for the Chair to engage in informal discussions and to keep this matter on its agenda.232 
1.56.   At the April 1987 meeting of the GATT Council, Nicaragua  reiterated its position that it could 
not support the adoption of the report until the Council was in a position to make 
recomme ndations.233 It noted that such recommendations would need to consider the decisions of 
other fora, in particular, the ICJ "which had concluded that the embargo was not necessary to protect 
any US security interest, as well as Resolutions 40/188 and 41/164 o f the United Nations General 
                                                
218 GATT Council , Minutes of Meeting held on 5 -6 November 1986 , C/M/204,  p. 9. 
219 Ibid. 
220 Ibid. 
221 Ibid. p. 10.  
222 Ibid. pp. 10 -11. Nigeria also noted that "[a]ny action which clearly undermined the United Nations 
Charter had to be seen as a gross abuse of rights conferred by the General Agreement." (Ibid.)  
223 Ibid. p. 1 1. 
224 Ibid. p. 13.  
225 Ibid. pp. 12 -14. 
226 Ibid. pp. 11 -12. 
227 Ibid. p. 15.  
228 Ibid. p. 13.  
229 Ibid. p. 16.  
230 Ibid. 
231 Ibid. pp. 11 -15. Sweden reiterated its view that it was the sole prerogative of each 
GATT  contracting  party to determine whether or not to invoke Article XXI. Peru and Poland  reiterated their 
opposition to the use of trade measures for political reasons. India reiterated i ts view that a contracting party 
having recourse to Article XXI should be able to demonstrate a genuine nexus between its security interests 
and the trade action taken. Japan  reiterated its view that the roots of the present dispute were too deep to be 
addressed in the context of the General Agreement. (Ibid.)  
232 Ibid. p. 17.  
233 GATT Council, Minutes of Meeting held on 15 April 1987, C/M/208, pp. 17 -18. 
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  Assembly which called for the immediate cessation of the embargo ".234 Nicaragua also argued that 
certain amendments that the United States had proposed to UN document A/C.2/41/L.2 suggested 
that it did consider the GATT to have c ompetence to rule on this matter.235 
The United  States  maintained its earlier position that resolution of this matter did not lie within the 
GATT  and that the p anel's findings confirmed this position. The United States reiterated that with 
respect to this an d other similar issues brought before the Council in the past, the GATT, by its 
traditions, its competence, and the terms of Article XXI itself, could not resolve cases where trade 
sanctions were imposed for national security reasons .236 The Council agreed t o engage in informal 
consultations and defer any determination on this matter to its next meeting.237 
1.57.   At the July 1987 meeting of the GATT Council, Nicaragua  circulated a draft decision adopting 
the panel report, but recommending that the United States take into consideration the negative 
trade effects of the embargo and authorizing contracting parties wishing to do so to grant trade 
concessions to Nicaragua.238 Nicaragua reiterated its view that "no one believed that Nicaragua was 
a threat to any country's sec urity" and that it "could not accept that the United States had the right 
to invoke Article XXI and still less to impose the embargo ".239 The United States  maintained its 
earlier position that resolution of this matter did not lie within the GATT and condemn ed 
Nicaragua's  draft resolution as politically motivated.240 The United States also asserted that the 
panel's report had found that "the United States was under no obligation to remove the embargo", 
and reiterated its position that the United States "had act ed in full conformity with its GATT rights 
and obligations ".241 The Council agreed to engage in informal consultations and defer any 
determination on this matter to its next meeting.242 At the November 1987 meeting of the 
GATT  Council, Nicaragua  noted that the President of the United States had proposed that the 
embargo  be renewed for an additional six months.243 Nicaragua expressed its intention to request 
that the contracting parties implement paragraph 21 of the Understanding Regarding Notification, 
Consultation, Dispute Settlement and Surveillance at its Forty -Third Se ssion.244 The Council took 
note of these statements.245  
1.58.   At the June 1989 meeting of the GATT Council, Nicaragua  noted that the President of the 
United States had sent a message to Congress in April 1989 extending the national emergency and 
economic sanctions against Nicaragua indefinitely.246 Nicaragua  also read out an official 
United  States document stating that trade sanctions were an essential element of the United States 
policy regarding Nicaragua, and that , in the United States' view,  present conditions in Nicaragua did 
not justify the lifting of trade sanctions.247 Nicaragua noted that this document "did not refer to the 
protection of the United States' essential security interests, but exclusively to Nicaragua's internal 
matters" and thus "infringed the fund amental principles of the United Nations Charter and other 
instruments of international law" and could not be justified under Article XXI.248 Nicaragua  called on 
                                                
234 GATT Council, Minutes of Meeting held on 15 April 1987, C/M/208, p. 17.  
235 Ibid. p. 18.  
236 Ibid. 
237 Ibid. 
238 GATT Council , Minutes of Meeting held on 15 -17 July 1987 , C/M/212, pp. 24 -25. Cuba supported the 
adoption of this decision, and the European  Communities, Switzerland, Canada, Australia, Austria, Japan, 
Finland on behalf of the Nordic countries, Is rael, Turkey, Singapore, Yugoslavia and Indonesia requested the 
continuation of informal consultations aimed at seeking a consensus solution to this matter. An alternate text, 
adopting the panel report but solely recommending that other parties grant trade  concessions to Nicaragua, 
was circulated by six Latin American countries. (Ibid.  pp. 25 -28. See also Communication from Argentina, 
Brazil, Colombia, Mexico, Peru and Uruguay , US –Nicaragua n Trade , C/W/525.)  
239 GATT Council , Minutes of Meeting held on 15 -17 July 1987 , C/M/212,  p. 28.  
240 Ibid. p. 25.  
241 Ibid. p. 26.  
242 Ibid. p. 29.  
243 GATT Council , Minutes of Meeting held on 10 -11 November 1987 , C/M/215, p. 40.  
244 Ibid. 
245 Ibid. Several contracting parties including Nicaragua, the United States, Brazil, Cuba, Argentina, 
Mexico, Colombia, Peru, Romania and Uruguay reiterated their views on the matter at the Fourth Meeting of 
the Forty -Third Session. (See GATT Contracting Parties , Forty-Third Session, Summary Record of the Fourth 
Meeting  held on 2 December 1987 , SR.43/4 , pp. 12 -16.) 
246 GATT Council , Minutes of Meeting held on 21 -22 June 1989 , C/M/234, p. 37.  
247 Ibid. The document went on to state that, if Nicaragua fulfilled its Esqui pulas  commitments and held 
free, fair and open elections, this might resolve the emergency which had led the US Administration to impose 
trade sanctions. (Ibid.)  
248 Ibid. p. 38.  
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  the contracting parties to "impose a limit on the irresponsibility with which the United States had 
claimed to interpret the provisions of Article XXI ".249 Nicaragua  also noted that it still could not 
support the adoption of the panel's report, as to do so would create a dangerous precedent by 
denying Nicaragua the right to have its complaint examined in accordance with Article  XXIII:2.250 
The United States  expressed surprise that Nicaragua had brought this issue back to the Council  some 
two and a half years after the first consideration of the panel report , and renewed its request for the 
adoption of the  panel's report , as it believed no other resolution of the matter was realistic.251 The 
United States also asserted that the panel "had confirmed that the United States was within its rights 
to invoke Article XXI ".252 The Council took note of these statements.253 
1.59.   In March 1990, Nicaragua circulated a communication noting that the United States had lifted 
the embargo and other economic measures on Nicaragua.254 At the April 1990 meeting of the 
GATT  Council, Nicaragua  welcomed the removal of the embargo, but noted th at the dispute had 
demonstrated that the GATT "did not have mechanisms to establish a proper balance between rights 
and obligations ".255 The United States  stated that "in light of changed circumstances and recent 
events, the conditions which had necessitated  action under Article XXI of the General Agreement 
had ceased to exist" and it had consequently terminated the embargo.256 The United States also 
noted its intention to restore Nicaragua's sugar allocation.257 Cuba stated that the embargo "had 
been imposed for  political reasons and its lifting was a reminder of its political nature and coercive 
character ".258 The Council took note of the statements.259  
1.60.   The panel report in United States – Trade Measures Affecting Nicaragua was never adopted.260 
Negotiating Group on GATT Articles  
1.61.   The Negotiating Group on GATT Articles also reviewed Article XXI in meetings in November 
1987 and June 1988 , on the basis of communications submitted by Nicaragua261, a Secretariat 
background note262 and a communication subm itted by Argentina.263 The Negotiating Group was 
unable to agree on any of the proposals regarding Article XXI, and the Chairman's Report to the 
Group of Negotiations on Goods did not list Article XXI among the provisions that it was 
considering.264  
                                                
249 GATT Council , Minutes of Meeting held on 21 -22 June 1989 , C/M/234,  p. 41.  
250 Ibid. p. 40.  
251 Ibid. p. 38.  
252 Ibid. The European Communities reiterated its view that invocation of Article XXI was at the 
discretion of governments but that this "did not necessarily mean an arbitrary step or measure". (Ibid. p. 40.)  
253 Ibid. p. 42. In a De cision of the GATT CONTRACTING PARTIES taken in April 1989, the contracting 
parties agreed to implement a number of improvements to the GATT dispute settlement rules and procedures, 
including the establishment of panels or working parties at the Council me eting following that at which the 
request first appeared on the Council's regular agenda, unless at that meeting the Council decided otherwise. 
(See Improvements to the GATT Dispute Settlement System Rules and Procedures, Decision of 12 April 1989, 
L/6489,  13 April 1989 (the April 1989 Decision), section F(a). See also ibid., section F(b) on the establishment 
of panels and working parties with standard terms of reference.) The procedural rules adopted under the 
April 1989 Decision applied to the GATT Counci l discussions concerning European Communities v.  Yugoslavia 
(1991), discussed below,  and the Helms -Burton legislation in 1996 ( see discussion in United States v. Cuba 
(including Helms -Burton Act) (1962 -2016) , while the equivalent rules under the DSU applied to the situation 
involving Nicaragua and Honduras (also discussed further below).  
254 Communication from Nicaragua, US – Nicaragua n Trade, L/6661.  
255 GATT Council , Minutes of Meeting held on 3 April 1990 , C/M/240, p. 31.  
256 Ibid. 
257 Ibid. 
258 Ibid. p. 32.  The European Communities reiterated its view that discretionary but not arbitrary use of 
Article XXI was to be recommended. (Ibid.)  
259 Ibid. 
260 See GATT Council, Status of Work in Panels and Implementation of Panel Reports , Report of the 
Director -General , C/172, p. 1.  
261 Communication from Nicaragua, Negotiating Group on GATT Articles, MTN.GNG.NG7/W/34; and 
Communication from Nicaragua, Negotiating Group on GATT Articles, MTN.GNG.NG7/W/39.  
262 Article XXI, Note by the Secretariat, Negotiating Group on GATT Arti cles, MTN.GNG.NG7/W/16 . 
263 Communication from Argentina, Negotiating Group on GATT Articles, MTN.GNG.NG7/W/44 . 
264 Negotiating Group on GATT Articles,  Status of Work in the Negotiating Group, Chairman's Report to 
the GNG, MTN.GNG/NG7/W/73.  
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  Negotiati ons Leading to the Adoption of the April 1989 Decision  (1988 -1989)  
1.62.   As stated above265, the GATT CONTRACTING PARTIES jointly agreed, in adopting the 
April 1989 Decision, that any panel  or working party would be established at the GATT Council 
meeting followin g the meeting  at which the request first appeared on the Council's regular agenda, 
unless at that meeting the Council decided otherwise.266 Prior to the adoption of the April 1989 
Decision, trade ministers considered a proposal which provided that, where the  Council could not 
agree on whether a matter fell within the scope of Article XXIII of the GATT, a panel would make a 
recommendation on the jurisdictional issue as a preliminary matter, with bracketed text stating 
"including the question of whether the mat ter is appropriate for resolution through the panel 
process".267 By 6 December 1998, a  Secretariat note state d that this language in the proposal was 
to be deleted. The final draft text of the report from the Trade Negotiations Committee Meeting 
omitted this language and include d only the text that formed part of the April 1989 Decision; namely, 
that "a decision t o establish a panel or working party shall be taken at the latest at the Council 
meeting following that at which the request first appeared as an item on the Council's regular 
agenda".268 
European Communities v. Yugoslavia (1991) 
1.63.   In 1991, the European Commun ities circulated a communication stating that  it had suspended 
the benefit of certain trade concessions that had been granted to Yugoslavia on a preferential 
basis.269 The European Communities referred in this context to its "vigorous efforts over recent 
months to put a stop to bloodshed in Yugoslavia", including promoting cease -fire agreements which 
unfortunately had not led to the "full cessation of hostilities ".270 The European Communities stated 
that the measures had been taken upon consideration of its "es sential security interests and based 
on GATT Article XXI", as it was faced with "continuing risks of political instability in this region of 
Europe, with potentially destabilizing consequences elsewhere ".271 In response , Yugoslavia 
circulated a communication  noting that it did not presently claim that the measures violated any 
GATT provisions as "the majority do not relate to the contractual obligations under the GATT or could 
be justified under Article XXI ".272 However, Yugoslavia did express concerns about th e negative trade 
effects of the measure as well as the use of punitive economic measures to secure political 
objectives.273 Yugoslavia also requested that it be notified of any additional measures pursuant to 
the 1982 Decision, and noted that it reserved its  rights under the GATT.274 
1.64.   Following this communication, Yugoslavia  requested consultations with the 
European  Communities in relation to these and certain other measures .275 The consultations did not 
                                                
265 See fn 253 of this Appendix.  
266 See the April 1989 Decision , section F(a).  See also ibid ., section F(b) on the establishment of panels 
and working parties with standard terms of reference.  
267 Group of Negotiations on Goods,  Report to the Trade Negotiations Committee meeting at Ministerial 
level, Montreal, December 1988 , MTN.GNG/13, pp. 59 -60. 
268 Trade Negotiations Committee Meeting at Ministerial Level, Montreal, December 1988, Trade 
Negotiations Committee, MTN.TNC/7(MIN), 9 December 1988, p. 29; Mid -Term Mee ting, Trade Negotiations 
Committee, MTN.TNC/11, 21 April 1989, p. 27.  
269 Communication from the European Communities, Trade Measures Taken by the European 
Communities against the Socialist Federal Republic of Yugoslavia , L/6948, p. 1. The measures comprised : 
(a) the suspension of the bilateral trade agreement between Yugoslavia and the European Communities, 
(b) the reapplication of certain quantitative limitations on textile products from Yugoslavia, (c) withdrawal of 
Generalized System of Preferences benefi ts from Yugoslavia, (d) suspension of the trade concessions granted 
to Yugoslavia as part of the Treaty establishing the European Coal and Steel Community, and (e) suspension of 
bilateral trade agreements between Member States of the European Communities a nd Yugoslavia. (Ibid. p. 2.)  
270 Ibid. 
271 Communication from the European Communities, Trade Measures Taken by the European 
Communities against the Socialist Federal Republic of Yugoslavia , L/6948, p. 2.  
272 Communication from Yugoslavia, Trade Measures Against  Yugoslavia for Non -Economic Reasons , 
L/6945, p. 2.  
273 Communication from Yugoslavia, Trade Measures Against Yugoslavia for Non -Economic Reasons , 
L/6945,  pp. 2-3. 
274 Ibid. p.  3. Yugoslavia also noted that it reserved its right to propose that the GATT contra cting 
parties issue a "formal interpretation" on Article XXI under this Decision. (Ibid.)  
275 Request for consultations under Article XXIII:1 by Yugoslavia, EEC - Trade Measures Taken For 
Non-Economic Reasons , DS27/1. In addition to the measures notified by the European Communities, 
Yugoslavia also challenged a decision to apply selective positive measures in favour of "those parties which 
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  achieve a mutually satisfactory solution, and Yugoslavia sub sequently requested the establishment 
of a panel.276 In its request, Yugoslavia asserted that the measures were taken "for purely political 
reasons" and were inconsistent with the GATT and paragraph 7(iii) of the 
1982 Ministerial  Declaration.277 Yugoslavia sta ted that the measures could not be justified under 
Article XXI, as the situation in Yugoslavia did not correspond to the "notion or meaning" of 
Article  XXI(b) and Article XXI(c), and no relevant UN body had authorized economic sanctions 
against Yugoslavia.278 At the February 1992 meeting of the GATT Council, Yugoslavia reiterated its 
request for a GATT panel.279 The European Communities  queried whether the withdrawal of 
preferences violated Article I of the GATT, and noted that as the situation was delicate and 
continually evolving, its primary objective was not to hamper the peace processes that had been 
engaged in securing a political solution in Yugoslavia.280 The European Communities stated that it 
was willing to engage in consultations, but that t he establishment of a GATT panel "could only 
exacerbate the problem ".281 Yugoslavia's request for the establishment of a GATT panel was 
supported by Chile, Cuba, and Venezuela .282 India also supported the request. It asserted that trade 
measures for non -econom ic reasons should only be taken within the framework of a 
UN Security  Council decision, and noted that Yugoslavia's request "encompassed an issue which was 
covered by GATT provisions ".283 The Council agreed to revert to this matter at its next meeting.284 
1.65.   At the March 1992 meeting of the GATT Council, Yugoslavia  reiterated its request for a 
panel.285 Yugoslavia asserted that the continued discrimination by the European Communities was 
wrong, as the peace process in Yugoslavia was proceeding well and the non -econo mic reasons 
underlying the measure s had "complet ely changed ".286 The European Communities  acknowledged 
the right of Yugoslavia to request the establishment of a panel , but considered the timing to be 
inopportune as the European Communities was "deeply involv ed" in the ongoing peace process and 
did not consider that a panel established at the present time would aid that process.287 
The European  Communities recognized that under the April 1989 Decision, a panel had to be 
established at the second Council meeting at which it was requested, unless at that meeting the 
Council decided otherwise. The European Communities queried whether, given that the measures 
had been taken for non -economic reasons, a different course of action could be taken, such as 
establishing th e panel but "delaying its activation subject to further clarity in the situation ".288 The 
European Communities also reserved its right to reflect further on what the standard terms of 
reference should be in disputes involving measures taken for non -economic reasons.289 
The United  States  affirmed Yugoslavia's right to request a panel, but noted that the problems that 
had given rise to the measures were not capable of resolution by the Council and should be resolved 
politically.290 Canada  expressed similar views.291 New Zealand  noted that while the GATT process 
needed to be observed, the "trends in the political situation" should be ascertained before any GATT 
                                                
contribute to progress towards peace". Yugoslavia asserted that this additional measure created a dangerous 
precedent for  GATT practice. (See Recourse to Article XXIII:2 by Yugoslavia, EEC - Trade Measures Taken For 
Non-Economic Reasons , DS27/2, pp. 1 -2.) 
276 Request for consultations under Article XXIII:1 by Yugoslavia, EEC - Trade Measures Taken For 
Non-Economic Reasons , DS27/1, p. 1. The request for establishment of a GATT panel was made pursuant to 
Article XXIII:2 and also paragraphs C.1 and F(a) of the Ap ril 1989 Decision. (See fn 253 of this Appendix.)  
277 See Recourse to Article XXIII:2 by Yugoslavia, EEC - Trade Measures Taken For Non -Economic 
Reasons , DS27/2, p. 2. Yugoslavia specifically alleged that the measures contravened, inter alia,  Articles I and  
XXI of the GATT 1947. (Ibid.)  
278 Ibid. p. 2.  
279 GATT Council, Minutes of Meeting held on 18 February 1992 , C/M/254,  p. 35. Chile, Cuba, Venezuela 
and India supported Yugoslavia's request for the establishment of a panel. (Ibid. pp. 35 -36.) 
280 Ibid. 
281 Ibid. p. 36. 
282 Ibid. 
283 Ibid. 
284 Ibid. 
285 GATT Council, Minutes of Meeting held on 18 March 1992 , C/M/255, p. 14. India, Pakistan, 
Argentina, Chile, Peru, Cuba, Mexico and Venezuela all made statements supporting Yugoslavia's right to the 
establishment of a panel. ( Ibid. pp. 15 -17.) 
286 Ibid. p. 14.  
287 Ibid. 
288 GATT Council, Minutes of Meeting held on 18 March 1992 , C/M/255,  p. 15. The European 
Communities asserted that the April 1989 Decision was silent on this issue. (Ibid.)  
289 Ibid. pp.  15 and 18.  
290 Ibid. p. 15.  
291 Ibid. 
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  consideration of the measures.292 Argentina  asserted that Yugoslavia had the right to have a panel 
examine any question relating to the application of GATT provisions, including "measures taken for 
non-economic reasons and invoked under Article XXI ".293 Mexico  affirmed Yugoslavia's right to 
request a  panel, but noted that the GATT was "perhaps not the most appropriate forum to discuss 
those issues, much less to solve them ".294 Japan  affirmed Yugoslavia's right to request a panel, but 
noted that the circumstances were "rather unique" and that its preferr ed approach was for the 
parties to seek a solution through dialogue.295 Tanzania  affirmed Yugoslavia's  right to request a 
panel, but noted that it would not want to see a peaceful solution in Yugoslavia impaired by 
GATT  dispute settlement procedures.296  
1.66.   The C hair of the GATT Council stated that the Council had to  decide on the establishment of 
a GATT panel in light of the rules in the April 1989 Decision. The Chair recalled a previous 
understanding that, under the rules in the April 1989 Decision, a contractin g party had the right to 
a panel at the second Council meeting following that at which the request first appeared as an item 
on the Council's regular agenda, unless at that meeting, the Council decided otherwise. The Chair 
therefore proposed that the Counc il agree to establish a panel with standard terms of reference 
unless, as provided for in the April 1989 Decision, the parties agreed to other terms of reference 
within 20 days.297 The GATT Council agreed to establish a panel with standard terms of ref erence  
unless otherwise agreed by the parties.298 The panel did not proceed  owing to the subsequent 
dissolution of the State of Yugoslavia . 
Nicaragua v. Honduras and Colombia (1999) 
1.67.   In 1999, Nicaragua imposed a tax on all goods and services  imported, manufactured or 
assembled, coming  from or originating in Honduras and Colombia,  and cancelled licences for all 
fishing vessels under Honduran and Colombian flags , as a response to the ratification of the bilateral 
Treaty on Maritime Delimitation in the Caribbean Sea (Ramírez -López Treaty) between those 
states.299 In January 2000, Colombia requested consultations with Nicaragua  in relation to these 
measures.300 These co nsultations did not achieve a mutually satisfactory solution, and in 
March  2000, Colombia  requested the establishment of a panel.301  
1.68.   At the April 2000 meeting of the DSB, Colombia  reiterated its request for a panel.302 
Nicaragua  responded  that the Ramírez -López Treaty infringed its "sovereign rights  in the 
Caribbean  Sea by impos ing limits unilateral ly, illegal ly and arbitra rily through reciprocal recognition 
by Honduras and Colombia of their expansionist aims in the Caribbean Sea to the detriment of 
Nicaragua' s territorial rights ".303 Nicaragua considered that Colombia and Honduras had created 
"serious international tension" in the form of  despatching  Honduran troops at its northern border  
and conducting military manoeuvres by deploying war planes and ships in th e region of its 
continental shelf.304 Nicaragua asserted that the Organization of American States had recognized 
the "state of serious international tension" by appointing a special envoy to assess the situation.305 
Accordingly, Nicaragua considered that its m easures were consistent with " Article XXI o f the 
GATT  1994 and Article XIV bis of the GATS , which reflected a state's inherent right to protect its 
                                                
292 GATT Council, Minutes of Meeting held on 18 March 1992 , C/M/255,  p. 17.  
293 Ibid. 
294 Ibid. 
295 Ibid. 
296 Ibid. 
297 Ibid. pp. 17 -18. 
298 Ibid. p. 18.  
299 Request for the establishment of a panel by Colombia, Nicaragua – Measures Affecting Imports from 
Honduras and Colombia , WT/DS188/2, p. 1; and Dispute Settlement Body, Minutes of Meeting held on 
7 April 2000,  WT/DSB/M/78, p. 12.  
300 Request for c onsultations by Colombia,  WT/DS188/1.  
301 Request for the establishment of a panel by Colombia,  WT/DS188/2. Colo mbia specifically alleged 
that the measures were inconsistent with Articles I and II of the GATT 1994, as well as Articles II and XVI of 
the GATS. (Ibid. p. 1.)  
302 Dispute Settlement Body, Minutes of Meeting held on 7 April 2000 , WT/DSB/M/78, item 4 . 
303 Ibid. para. 51.  
304 Ibid. para. 52. Nicaragua also referred to complaints made by Miskito communities bordering 
Honduras and the increase in the defence budget of Honduras adopted by the Congress of the Republic. (Ibid.)  
305 Ibid. para. 53.  
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  security, and therefore constituted a general exception to multilateral trade rules ".306 Nicaragua 
noted that it had not adopted the measures for trade purposes or to protect domestic industry , but 
rather to safeguard its essential security interests .307 Nicaragua recognized Colombia's right to 
request establishment of a panel, but doubted the u tility of having a panel examine the matter, 
asserting that "it had been customary practice in the WTO that the contracting party applying the 
measure should be the sole judge in matters that concerned its essential security interests, in 
particular if suc h interests could be threatened by any actual or potential danger. "308 According to 
Nicaragua, if the panel "gave itself powers that belonged to political fora that could result in a 
dangerous and unacceptable precedent ".309 Nicaragua was also of the view that , "before establishing 
a panel to examine this matter, the General Council should take a decision on the competence of 
panels to deal with highly political issues and should make a formal interpretation of Article XXI of 
GATT 1994 ."310 Honduras  disputed Nica ragua's assertions regarding the movement of troops and 
military equipment. Honduras also noted that the DSU provided it with the possibility of restoring its 
rights, but considered the subject of maritime limits to fall outside of the mandate of the WTO .311 
The DSB agreed to revert to this matter at its next meeting.312 
1.69.   At the May 2000 meeting of the DSB, Colombia  reiterated its request for a panel.313 Nicaragua  
reiterated its position that Article XXI of the GATT 1994 "could not be subjected to an examination 
by a panel", and asserted that the 1982 Decision had given the Ministerial Conference and 
General  Council "exclusive authority" to interpret Article XXI to the exclusion of any other body.314 
Japan , Canada , the European Communit ies and Honduras  expressed the view that issues of national 
security were sensitive and should be addressed with great caution.315 The European Communit ies 
asserted that the panel could examine the facts to determine whether the matter concerned a 
national security issue or a trade policy  measure.316  
1.70.   The DSB agreed to establish the panel317, but the panel was never composed.318   
1.71.   In July 2006, in the context of the Trade Policy Review of Nicaragua, Colombia  noted that 
Nicaragua had suspended the application of the tax to goods and services impo rted from or 
originating in Honduras since March 2003. 319 Colombia argued that this made the "discrimination of 
Nicaragua's trade policy against Colombia much more obvious", and asked to have the trade practice 
put on record in the conclusions of the Trade Policy Review.320 Nicaragua  maintained that the tax 
was applied in conformity with Article XXI of the GATT 1994 in order to protect Nicaragua's essential 
security interests.321 
India v. Pakistan (2002) 
1.72.   During the 2002 Trade Policy Review of Pakistan, India asserted that Pakistan had c onsistently 
denied MFN status to India in violation of the basic principles of the GATT 1994 and the WTO.322 
                                                
306 Dispute Settlement Bo dy, Minutes of Meeting held on 7 April 2000 , WT/DSB/M/78,  para. 54. 
Nicaragua specifically argued that the measures were fully justified under Article XXI(b)(iii) of the GATT 1994 
and Article  XIVbis:1(b)(iii) of the GATS Agreement. (Ibid. para. 60.)  
307 Ibid. para. 55. Nicaragua also asserted that there had been no nullification or impairment under 
Article II of the GATT 1994 because Nicaragua had not exceeded its scheduled tariff ceilings. (Ibid.  para. 60.)  
308 Ibid. para. 58.  
309 Ibid. para. 59.  
310 Ibid. 
311 Ibid. para. 61.  
312 Ibid. para. 62. 
313 Dispute Settlement Body, Minutes of Meeting held on 18 May 2000 , WT/DSB/M/80, para. 26.  
314 Ibid. paras. 29 -30. 
315 Ibid. paras. 32 -35. 
316 Ibid. para. 35.  
317 Ibid. para. 40.  
318 See Note by the Secretariat, Update of WTO Dispute  Settlement Cases, WT/DS/OV/34, p. 60.  
319 Trade Policy Review Body, Trade Policy Review, Nicaragua, Minutes of Meeting held on 
24 and 26 July 2006, WT/TPR/M/167, para. 35.  
320 Ibid. 
321 Trade Policy Review Body, Trade Policy Review, Nicaragua, Minutes of Meeting held on 
24 and 26 July 2006, WT/TPR/M/167, para. 131.  
322 Trade Policy Review Body, Trade Policy Review, Pakistan, Minutes of Meeting held on 
23 and 25 January 2002, Addendum, WT/T PR/M/95/Add.1, p. 21.  
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  Pakistan  responded that the India -Pakistan relationship had to be viewed in the context of the 
"difficult political relations between the two countri es over the course of the past 50 years ".323 
Pakistan noted that after the 1965 war, trade and diplomatic relations had been terminated by both 
sides, and the subsequent process of normalization had been slow and on an item -by-item basis 
through limited trad e and shipping routes.324 Pakistan therefore considered that both India and 
Pakistan had acted consistently with Article XXI(b)(iii) by treating each other as exceptions to 
MFN principles.325  
1.73.   At the 2008 Trade Policy Review of Pakistan, India reiterated that Pakistan was denying MFN 
status to India, to which Pakistan  responded that trade relations between India and Pakistan were 
continuously liberalizing and improving.326 
United States v. Brazil (2003) 
1.74.   In 2003, the United States  circulated a communication to the  Committee on Import Licensing 
raising concerns about Brazil's import licensing system for  certain lithium compounds and the 
compatibility of the system with the Import Licensing Agreement.327 The United States  disagreed 
with the inclusion of these lithium c ompounds in a measure regulating goods related to the 
production of nuclear energy, as the United States domestic industry had reported that these lithium 
compounds had no nuclear application but were rather used as a raw material in various commercial 
products.328 The United States therefore requested that Brazil provide additional information about 
the operation of the system.329 The United States repeated these concerns at the October 2003 
meeting of the Committee on Import Licensing.330 The Committee took not e of these statements.331 
In 2004, Brazil  circulated a communication responding to the questions of the United  States, in 
which Brazil asserted that the restrictions were maintained because lithium could have an application 
in the production of nuclear energ y.332 At the September  2004 meeting of the Committee on Import 
Licensing, the United States  observed that the explanation given by Brazil was "tenuous", as it did 
not demonstrate that the lithium compounds had any nuclear application outside of its "common 
commercial use ".333 The United States asserted that in practice, these licensing requirements acted 
as quantitative restrictions and noted that Brazil's response "engendered some suspicion that there 
might be other more protectionist reasons for the requirement ".334 The United  States  noted that it 
would circulate further questions to Brazil in writing, and Brazil  responded that such questions would 
be conveyed to its government.335 The Committee took note of these statements.336 
                                                
323 Trade Policy Review Body, Trade Policy Review, Pakistan, Minutes of Meeting held on 
23 and 25 January 2002, Addendum, WT/TPR/M/95/Add.1, p. 21.  
324 Ibid. 
325 Ibid. 
326 Trade Policy Review Body, Trade Policy Review, Pakistan, Minutes of Me eting held 
16 and 18 January  2008, Addendum, WT/TPR/M/193/Add.1, pp. 101 -102. Pakistan expressed similar views at 
its 2015 Trade Policy Review. (Trade Policy Review Body, Trade Policy Review, Pakistan, Minutes of Meeting 
held 24 and 26 March 2015, Addendum , WT/TPR/M/311/Add.1, pp. 17 and 52.)  
327 Committee on Import Licensing, Brazil's Import Licensing Requirements for Chemical Products and 
Goods Related to Nuclear Applications, Questions from the United States to Brazil, G/LIC/Q/BRA/1. Article XXI 
of the GAT T 1994 applies to the Import Licensing Agreement by reference through Article 1.10 of that 
Agreement.  
328 Ibid. p. 1.  
329 Ibid. p. 2.  
330 Committee on Import Licensing, Minutes of the Meeting held on 2 October 2003, G/LIC/M/18 , p. 8.  
331 Ibid. 
332 Committee on Impor t Licensing, Brazil's Import Licensing Requirements for Chemical Products and 
Goods Related to Nuclear Applications, Replies from Brazil to Questions from the United States, 
G/LIC/Q/BRA/2, p. 2.  
333 Committee on Import Licensing, Minutes of the Meeting held on 30 September 2004, G/LIC/M/ 20, 
pp. 2-3. 
334  Committee on Import Licensing, Minutes of the Meeting held on 30 September 2004, G/LIC/M/ 20, 
p. 3. 
335 Ibid. pp. 3 -4. The United States circulated a communication reiterating these concerns and posing 
further que stions in November 2004. (See Committee on Import Licensing, Questions from the United States to 
Brazil, Brazil's Import Licensing Requirements for Lithium Compounds, G/LIC/Q/BRA/3.)  
336 Ibid. p. 4.  
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  1.75.   At the June 2005 meeting of the Committee on Import L icensing, the United States  noted that 
they had not yet received a response to their questions.337 Brazil  reiterated that the restrictions were 
justified because of the potential risks and uses of lithium compounds "including for nuclear ends ".338 
The Committe e took note of these statements.339 At the June 2006 meeting of the Committee on 
Import Licensing, the United States  noted that they had still not received a response to their 
questions, as recently circulated with supplementary questions.340 The United States  also asserted 
that "it seemed clear that none of the requests for information that the U.S. was making, involved 
the national security provisions of Article XXI of the GATT 1994, since the information was requested 
for commercial purposes."341 Brazil  respon ded that there had been no change in its policy, but that 
it had taken note of the concerns of the United States.342 The Committee took note of these 
statements.343 Similar views were expressed at subsequent meetings of the Committee on Import 
Licensing until 2009.344 In 2009, Brazil  circulated a communication to the Committee on Import 
Licensing responding to the questions of the United States, in which Brazil  reiterated that "since 
some lithium compounds have an application in the production of nuclear energy",  this restriction 
"was treated as a matter of national security ".345  
1.76.   At the October 2009 meeting of the Committee on Import Licensing, the United States 
thanked Brazil for its response.346 At the April 2010 meeting of the Committee on Import Licensing, 
the United States thanked Brazil again and noted that it did not have further questions at the time.347 
European Union v. Brazil (2013) 
1.77.   During the 2013 Trade Policy Review of Brazil, the European Union  posed a question to Brazil 
regarding its import licensing restrictions on nitrocellulose.348 The European Union asserted that 
industrial nitrocellulose was a different product from military -grade nitrocellulose, and argued that 
as the former was a safe product which did not pose any problems related to national security, it 
was not justifiable to  impose a de facto import ban on the product.349 Brazil  responded that it did 
not necessarily agree that industrial nitrocellulose posed no problems related to security, as low 
concentrations of the product could be used as an explosive.350 Brazil noted that i t was however 
currently reviewing its legislation on controlled products.351 
1.78.   At the April 2014 meeting of the Committee on Import Licensing, the European Union  
reiterated its concerns about Brazil's import licensing scheme for nitrocellulose.352 The 
European  Union argued that the Brazilian producer of nitrocellulose benefited from the restrictions 
as a monopoly supplier in the closed local market.353 The European Union also stressed that the 
"essential security exceptions in the provision of Article XXI of the GA TT 1994 were to be applied on 
                                                
337 Committee on Import Licensing, Minutes of Meeting held on 15 June 2005, G/LIC/M/21, p. 3.  
338 Ibid. 
339 Ibid. p. 5.  
340 Committee on Import Licensing, Minutes of Meeting held on 21 June 2006, G/LIC/M/23, p. 3. 
See also Committee on Import Licensing, Questions f rom the United States to Brazil, Brazil's Import Licensing 
Requirements for Lithium Compounds, G/LIC/Q/BRA/3/Add.1.  
341 Committee on Import Licensing, Minutes of Meeting held on 21 June 2006, G/LIC/M/23, p. 4.  
342 Ibid. p. 3.  
343 Ibid. p. 4.  
344 See, e.g. Committe e on Import Licensing, Minutes of Meeting held on 2 April 2007, G/LIC/M/25, 
p. 3; Committee on Import Licensing, Minutes of Meeting held on 28 April 2008, G/LIC/M/27, pp. 5 -6; 
Committee on Import Licensing, Minutes of Meeting held on 20 October 2008, G/LIC /M/28, pp. 3 -4; and 
Committee on Import Licensing, Minutes of Meeting held on 30 April 2009, G/LIC/M/29, p. 8. Brazil also 
emphasized that controls on lithium products in other countries were not uncommon, and maintained that this 
was a matter of national security due to the application of lithium compounds in the production of nuclear 
energy. (See Committee on Import Licensing, Minutes of Meeting held on 20 October 2008, G/LIC/M/28, p. 4.)   
345 Committee on Import Licensing, Replies from Brazil to Questions  from the United States, 
Brazil's  Non-Automatic Import Licensing Procedures, G/LIC/Q/BRA/13, p. 1.  
346 Committee on Import Licensing, Minutes of Meeting held on 19 October 2009, G/LIC/M/30, pp. 6 -7. 
347 Committee on Import Licensing, Minutes of Meeting held on  12 July 2010, G/LIC/M/31, pp. 5 -6. 
348 Trade Policy Review Body, Trade Policy Review, Brazil, Minutes of Meeting held on 
24 and 26 June 2013, Addendum, WT/TPR/M/283/Add.1, p. 103.  
349 Ibid. 
350 Ibid. 
351 Ibid. 
352 Committee on Import Licensing, Minutes of Meeting held on 15 April 2014, G/LIC/M/39, p. 17.  
353 Ibid. 
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  traffic in implements of war and to goods for the purpose of supplying a military establishment, but 
not to the non -military industrial sector."354 The European Union requested that Brazil remove the 
licensing requirements and a sked for additional information regarding grants of such licenses over 
the last five years.355 Brazil  took note of these comments and asked that the European Union provide 
its comments and questions in writing.356 The Committee took note of these statements.357  
1.79.   The European Union subsequently circulated a communication to the Committee on Import 
Licensing containing these questions to Brazil.358 At the October 2014 meeting of the Committee on 
Import Licensing, the European Union  reiterated its concerns and further  asserted that industrial 
nitrocellulose was only used for "commercial purposes such as for applications like printing inks, 
wood lacquer, or nail varnish ".359 Brazil  responded that it disagreed with the European Union's view 
that industrial and military nit rocellulose were substantially and chemically different products, as 
regardless of its intended use, "the product poses risks ".360 The Committee took note of these 
statements.361 Brazil contemporaneously circulated a communication responding to the 
European  Union's questions in which Brazil  asserted that nitrocellulose was a hazardous material at 
any concentration, and controls on the product were therefore legitimate for "security and safety 
reasons ".362 Similar views were expressed at subsequent meetings of the  Committee on Import 
Licensing363, and the European Union circulated further questions to Brazil in 2016.364 Discussions 
between the European Union and Brazil on this issue continued into 2018.365 
United States v. Cuba (1962-1996) 
1.80.   In 1962, the United States impo sed an embargo prohibiting  imports into the United States of 
all products of Cuban origin, in addition to all goods imported via Cuba, and  ordering  a continuing 
prohibition on all exports from the United States to Cuba.366 In 1968, Cuba submitted a notification 
to the Committee on Trade in Industrial Products stating that the embargo constituted a non -tariff 
barrier which adversely affected Cuba's trad e.367 During the Committee's first examination of the 
notified barriers in 1969368, Cuba emphasized that the embargo differed from the previously 
examined trade barriers because it was not limited to  particular products or particular commercial 
interests, but instead was "designed to reduce a small country to submission by starvation ".369 The 
United States  responded that  the embargo had been imposed for  reasons of "individual and collective 
self-defense" and to "promote nat ional and hemispheric security", and invoked Article XXI as 
                                                
354 Committee on Import Licensing, Minutes of Meeting held on 15 April 2014, G/LIC/M/39, p. 17.  
355 Ibid. 
356 Ibid. 
357 Ibid. 
358 Committee on Import Licensing, Ques tions from the European Union to Brazil Regarding the 
Importation of Nitrocellulose, Questions from the European Union to Brazil, G/LIC/Q/BRA/18.  
359 Committee on Import Licensing, Minutes of Meeting held on 20 October 2014, G/LIC/M/40, p. 8.  
360 Ibid. p. 9.  
361 Ibid. 
362 Committee on Import Licensing, Replies from Brazil to Questions from the European Union, 
Questions from the European Union to Brazil Regarding the Importation of Nitrocellulose, G/LIC/Q/BRA/19, 
p. 3. 
363 See Committee on Import Licensing, Minutes of  Meeting held on 21 April 2015, G/LIC/M/41, p. 6; 
Committee on Import Licensing, Minutes of Meeting held on 20 October 2015, G/LIC/M/42, pp. 6 -7; and 
Committee on Import Licensing, Minutes of Meeting held on 21 April 2016, G/LIC/M/43, pp. 7 -8. Brazil 
subse quently emphasized the risk that nitrocellulose posed to human health as another justification for the 
measure. (Committee on Import Licensing, Minutes of Meeting held on 21 April 2015, G/LIC/M/41, p. 6.) Brazil 
also asserted that nitrocellulose was report edly employed in certain criminal activities, such as ATM robberies. 
(Committee on Import Licensing, Minutes of Meeting held on 21 April 2016, G/LIC/M/43, p. 8.)  
364 Committee on Import Licensing, Questions from the European Union to Brazil, G/LIC/Q/BRA/20. For 
Brazil's response, see Committee on Import Licensing, Replies from Brazil to the European Union, 
G/LIC/Q/BRA/21.  
365 See, e.g. Committee on Import Licensing, Follow -Up Questions from the European Union to Brazil, 
Import Licensing System of Brazil, G/LIC/ Q/BRA/22; and Committee on Import Licensing, Replies from Brazil 
to Questions from the European Union, Import Licensing System of Brazil, G/LIC/Q/BRA/23.  
366 GATT Council, Trade Policy Review Mechanism, United States, Statement by Cuba, Spec(90)4, p. 2.  
367 Committee on Industrial Products, Inventory of Non -Tariff Barriers , COM.IND/4, pp. 228 -229. 
368 Committee on Trade in Industrial Products, Note by the Secretariat on the Meeting of the Committee 
held 19 -25 June 1969 , COM.IND/W/7, para. 1.  
369 Committee on Trade in Industrial Products, First Examination of Part 4 of the Inventory of 
Non-Tariff Barriers , COM.IND/W/12, p. 311.  
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  justification for its actions.370 Cuba responded  that the invocation of Article XXI was inadequate 
because the United States  had unilaterally adopted coercive measures without securing any 
authorization from the international legal commun ity, in particular the UN Securi ty Council .371  
1.81.   In 1986 , Cuba circulated a communication  expressing concern over a measure imposed by 
the United States removing quotas for sugar imports unless the supplying country guaranteed that 
it would not import sugar f rom Cuba for re -export to the United States .372 At the May 1986 meeting 
of the GATT Council, Cuba argued that this measure vio lated the GATT and stated that the 
United  States was undermining free trade, not only by harming Cuba, but also by trying to hamper 
its normal trade with third countries.373 The United States  responded  that the measure was a 
reflection of the long-standing trade embargo against Cuba which the United States had maintained 
for national security reasons.374 Nicaragua , Argentina , Brazil , Hungary , Peru, Czechoslovakia , Poland  
and Uruguay  all opposed the measure , considering it to be politically motivated, coercive and 
discriminatory.375 The Counc il took note of the statements .376 
1.82.   In 1987, in the context of the meetings of the United Nations Con ference on Trade and 
Employment, the Cuban Vice -Minister for Foreign Trade made a statement asserting that the 
embargo imposed by the United States violated the objectives and principles of the GATT, including 
those enumerated in Articles I, II and V and P art IV.377 The Vice -Minister also noted that the 
United  States had unjustifiably invoked Article XXI, "since it is no secret that Cuba has not 
threatened, is not threatening nor will ever threaten the United States: on the contrary, the latter 
country has th reatened and is threatening our security through sabotage, spying, violation of our 
land, sea and air frontiers, and has organized and supported armed aggression against our people 
as on the occasion of the mercenary landing at the Bay of Pigs ".378 
1.83.   In 1988, in the context of the discussion of the United States embargo against Nicaragua at 
the Fourth Meeting of the Forty -Third Session, Cuba noted that the United States had justified its 
embargoes against both Nicaragua and Cuba on grounds of national security.379 Cuba responded 
that "[i]f two small countries could pose a threat to an enormous military and economic power such 
as the United States, many countries might find themselves subject to similar measures by that 
country."380 Cuba called on the contracting par ties to recognize the rights of Nicaragua.381 
1.84.   In 1989, in the context of the Trade Policy Review Mechanism, the United States submitted a 
report to the GATT Council summarizing its domestic trade framework.382 In this report, the 
United  States  cited "U.S. fore ign policy and national security goals" and the President's "wartime 
and national emergency powers" as the justification for the Office of Foreign Assets Control's 
administration of the economic embargo against Cuba.383 In response, Cuba circulated a 
communi cation stating that the embargo contradicted the United States' commitments under the 
                                                
370 Committee on Trade in Industrial Products, First Examination of Part 4 of the Inventory of 
Non-Tariff Barriers , COM.IND/W/12, p. 311.  
371 Ibid. Cuba based its arguments upon its reading of paragraph (c) of Article XXI. (Ibid. p. 313.)  
372 Communication from Cuba, United States – Measures Affecting Cuban Sugar Exports , L/5980.  
373 GATT Council, Minutes of Meeting held on 22 May 1986 , C/M/198, p. 33. Cuba specifically argued 
that the US measures violated Part IV and GATT Articles dealing with quantitative restrictions, 
non-discrimination and most -favoured -nation treatment. (Ibid.)  
374 Ibid. p. 34.  
375 Ibid. p. 33.  
376 Ibid. The same contracti ng parties reiterated these views at the First Meeting of the Forty -Second 
Session in 1986 . (See GATT Contracting Parties , Forty-Second Session, Summary Record of the First Meeting  
on 24 November 1986 , SR.42/1 , pp. 11 -13.) 
377 GATT Contracting Parties, Forty -Third Session, Cuba, Statement by Mr. Alberto Betancourt Roa, Vice 
Minister, Ministry of Foreign Trade , SR.43/ST/10, p. 7.  
378 Ibid. 
379 GATT Contracting Parties , Forty-Third Session, Summary Record of the Fourth Meeting  on 
2 December 1987 , SR.43/4 , p. 14.  
380 Ibid. 
381 Ibid. 
382 GATT Council, Trade Policy Review Mechanism , United States, Report by the United States of 
America , C/RM/G/3.  
383 Ibid. p. 81.  
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  GATT 1947 and paragraph 7(iii) of the 1982 Ministerial Declaration.384 Cuba also asserted that the 
invocation of Article XXI by the United States was inappropriate, "[s]inc e Cuba has not provoked 
any 'national emergency ', there is no 'wartime ' nor any serious international tension."385 
Cuba expressed similar views on several subsequent occasions between 1990 and 1996.386  
United States v. Cuba ( including Helms -Burton Act) (1996-2016) 
1.85.   In 1996, Cuba circulated a Communication noting the adoption by the United States of the 
Cuban Liberty and Democratic Solidarity (LIBERTAD) Act (Helms -Burton Act).387 Cuba argued that 
the objective of the Helms -Burton Act was to  "intimidate the world business community and prevent 
it from participating in the ever -widening economic opportunities for foreign investment" in Cuba.388 
Cuba also asserted that the measure constituted a violation of its sovereignty by attempting to 
legislate on its internal matters, namely, the property of Cuban nationals.389 At the March 1996 
meeting of the Council for Trade in Goods, Cuba argued that the  Helms -Burton Act was incompatible 
with various provisions of the GATT 1994 and other WTO Agreements.390 The United States  
responded  that it had recognized the need to take strong measures after the recent shooting down 
of two unarmed US civilian aircraft by the Cuban government, and asserted that "persons who 
knowingly and intentionally did business in Cuba u sing confiscated property were furthering wrongs 
committed against the former owners of this property, and were undermining the interests of the 
USA and its citizens ".391 Canada  stated that the Helms -Burton Act was not a "useful tool" for 
achieving democrati c reform in Cuba and noted that the legislation "was designed to chill investment 
in Cuba ".392 The Council for Trade in Goods took note of these statements.393 Several Members 
reiterated their views at the April 1996 meeting of the General Council.394 
1.86.   In May 199 6, the European Communit ies requested consultations in respect of the 
extraterritorial application of the United States' trade embargo against Cuba under the 
Helms -Burton  Act and related US legislation and regulations.395 These consultations did not achieve 
a mutually satisfactory solution, and the European Communit ies subsequently requested the 
establishment of a panel. 396 At the October 1996 meeting of the DSB, the European Communit ies 
                                                
384 GATT Council, Trade Policy Review Mechanism,  United States, Statement by Cuba , Spec (90)4, p. 5. 
Cuba specifically cited incompatibility with Articles II, XI:1, XIII:1, XXXVI and XXXVII of the GATT 1947. 
(Ibid.  pp. 5-6.) 
385 Ibid. p. 5.  
386 See, e.g. GATT Council, Trade Policy Review Mechanism, United States, Minutes of Meeting held on 
11-12 March 1992, C/RM/M/23, pp. 26 -27; GATT Council, Minutes of Meeting held on 
29 September  – 1 October 1992, C/M/259, pp. 77 -78; GATT Council, Trade Policy Review Mechanism, 
United  States, Minutes of Meeting held on 16 -17 February 1994, C/RM/M/45, p. 24;  and Communication from 
Cuba, Analysis of the Effects of the Embargo Imposed by the Government of the United States of America 
against Cuba , L/7525.  
387 Communication from Cuba, United States - Cuban Liberty and Democratic Solidarity Act of 1996 , 
WT/L/142. T he Helms -Burton Act, amongst other things, empowered the President to "encourage" other 
countries to restrict their trade and credit relations with Cuba, withheld payments to international financial 
institutions which approved loans to Cuba, and denied ent ry into the United States for companies with certain 
investments and assets in Cuba. (See Negotiating Group on Market Access, Market Access for Non -Agricultural 
Products, Non -Tariff Barriers - Requests, Communication from Cuba, TN/MA/NTR/2, pp. 6 -7.) 
388 Ibid. p. 2.  
389 Negotiating Group on Market Access, Market Access for Non -Agricultural Products, Non -Tariff 
Barriers -Requests, Communication from Cuba, TN/MA/NTR/2,  pp. 2-3. 
390 Council for Trade in Goods,  Minutes of Meeting held on 19 March 1996 , G/C/M/9,  pp. 3-4. 
Cuba specifically alleged that the measure was incompatible with the principles of MFN treatment, Article XI 
and Part  IV of the GATT 1994, the Agreement on Trade -Related Investment Measures, and the commitments 
of the United States to ensure freedom of access in trade in services. (Ibid.)  
391 Ibid. p. 6.  
392 Ibid. p. 5. Mexico, Chile, the European Communities, Nicaragua and India also expressed concern 
about the Helms -Burton Act, and in particular its extra -territorial implications. (Ibid. pp. 5 -6.) 
393 Ibid. p. 6. 
394 General Council, Minutes of Meeting held on 16 April 1996 , WT/GC/M/11, pp. 5 -9. Bolivia, Canada, 
the European Communit ies, Mexico , India, Nicaragua, Madagascar, Jamaica, the Philippines, Australia, 
Switzerland, Norway, Colombia, Trinidad and Tobago , Japan, Sri Lanka and Iceland expressed their concern 
about the Helms -Burton Act, and in particular its extra -territorial implications. (Ibid. pp. 5 -10.) 
395 Request for consultations by the European Communities, United States – The Cuban Liberty and 
Democr atic Solidarity Act , WT/DS38/1.  
396 Request for the establishment of a panel by the European Communities, WT/DS38/2 (European 
Communities' panel request), pp. 1 -2. The  other challenged measures included: (a) denial of access to the US 
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  reiterated its request for a panel, noting that its concern with the legi slation "was not its objectives, 
but the extra -territorial means chosen to achieve those objectives ".397 The United States  asserted 
again that the Helms -Burton Act was a response to the shooting down of two civilian aircraft by the 
Cuban government.398 The Uni ted States described this incident as the latest in a series of actions 
taken by the Cuban government over the past 35 years that had directly affected US interests, and 
noted that the Helms -Burton Act, other US laws and regulations, as well as the Cuban e mbargo 
which dated from the 1960s "reflected the abiding US foreign policy and security concerns with 
regard to Cuba pursued by eight US Presidents ".399 The United States asserted that the 
Helms -Burton Act was "designed to promote a swift transition to democracy in Cuba" and noted that 
the European Communit ies had not suggested that the US policy with regard to Cuba generally, or 
the Helms -Burton Act in particular, was motivated by trade protectionism.400 The United States noted 
that several of the challenged measures had been in force for years or decades, and had been 
expressly justified by the United States under the GATT 1947 as measures taken in pursuit of its 
essential security interests.401 The United States questioned the utility and des irability of pursuing 
this issue through the WTO, arguing that the WTO had been established to manage "trade relations", 
not "diplomatic or security relations" with negligible trade and investment effects.402 The 
United  States refused to join a consensus to establish a panel, and urged the European Communities 
to explore other options.403 Cuba asserted that the Helms -Burton Act was incompatible with the 
GATT 1994, but noted that it would reply to the "political statement" by the United States in other 
fora such  as the UN General Assembly.404 The DSB agreed to revert to this matter at its next 
meeting.405 
1.87.   At the November 1996 meeting of the DSB, the European Communit ies reiterated its request 
for a panel.406 The United States  maintained its earlier position, and noted that it did not believe 
that a panel would lead to a resolution of the dispute, but rather, would pose serious risks to the 
WTO as a nascent organization.407 Cuba responded that unlike the United States, Cuba had never 
launched an invasion, or initiated any military actions or intelligence operations against the 
United  States.408 Cuba asserted that if anything, "Cuba would be in a better position than the US to 
resort to Article XXI of the GATT 1994 ."409 Cuba noted, however, that the DSB was not the 
appropriate f orum to enumerate an endless list of such grievances.410  
1.88.   The DSB agreed to establish the panel with standard terms of reference.411 In 1997, the 
European Communit ies requested that the panel  suspend proceedings while a mutually agreeable  
                                                
tariff rate quota for s ugar (through a prohibition on the allocation of any of the sugar quota to a country that 
was a net importer of sugar unless that country certified that it did not import Cuban sugar that could indirectly 
find its way to the US); (b) denial of transit of E C goods and vessels of EC Member States through US ports 
where the vessels carried goods or passengers to or from Cuba, or carried goods in which Cuba or a Cuban 
national had any interest; (c) prohibiting US persons from financing transactions involving co nfiscated property 
owned by a US national; (d)  a right of action in favour of US citizens to sue EC citizens and companies in US 
courts to obtain compensation for Cuban properties "trafficked" by such EC citizens or companies and 
confiscated by the Cuban G overnment from persons who were US nationals; and (e) denials of visas and 
exclusion from the US of persons (including the spouses, minor children and agents of such persons) involved 
in confiscating or "trafficking" in confiscated property owned by US nat ionals or persons. (European 
Communities' panel request, pp. 1 -2.) 
397 Dispute Settlement Body, Minutes of the Meeting held on 16 October 1996 , WT/DSB/M/24, p. 6. 
Australia, Bolivia, Canada, India and Switzerland also expressed their concern about the potent ial 
extra-territorial application of the Helms -Burton Act. (Ibid. pp. 7 -9.) 
398 Ibid. p. 6.  
399 Ibid. pp. 6-7. 
400 Ibid. p.  7. 
401 Dispute Settlement Body, Minutes of the Meeting held on 16 October 1996 , WT/DSB/M/24, p. 7. 
402 Ibid. 
403 Ibid. p. 7.  
404 Ibid. p. 8.  
405 Ibid. p. 9.  
406 Dispute Settlement Body, Minutes of the Meeting held on 20 November 1996 , WT/DSB/M/26, p. 2. 
New Zealand and Norway expressed their concerns regarding the extraterritorial application of the measures. 
(Ibid. pp. 2 -3.) 
407 Ibid. p. 2.  
408 Ibid. pp. 2 -3. 
409 Ibid. p. 3.  
410 Ibid. 
411 Ibid. p. 2.   
 WT/DS512/R  
 
- 137 - 
 
  solution was negotiat ed.412 The European Communit ies and the United States subsequently reached 
an Understanding that the United States would consult with Congress with a view to obtaining a 
waiver for the European Communit ies from the Helms -Burton Act.413 The panel's authority la psed in 
April 1998.414 At the April 1998 meeting of the DSB, Cuba expressed its continuing conviction that 
the measures were illegal and reserved its right to revert to this matter.415 
1.89.   Cuba and the United States  have reiterated their views about the Helms -Burton Act and the 
embargo more generally on several subsequent occasions.416 
CONCLUDING REMARKS  
1.90.   As discussed in paragraphs 7. 80 and 7. 81 of the Panel Report , the Panel considers that the 
foregoing survey of the pronouncements of the GATT contracting p arties and WTO Members does 
not reveal any subsequent practice establishing  an agreement between the Members regarding the 
interpretation of Article XXI in the sens e of Article 31(3)(b) of the Vienna Convention.  
 
 
__________  
                                                
412 Communication from the Chairman of the P anel, WT/DS38/5.  
413 See Trade Policy Review Body, Trade Policy Review, United States , Minutes of Meeting held on 
12 and 14 July 1999, Addendum, Communication by the United States , Outstanding Responses to Questions, 
WT/TPR/M/56/Add.1, p. 25.  
414 Note by the S ecretariat, Lapse of the Authority for Establishment of the Panel, WT/DS38/6.  
415 Dispute Settlement Body, Minutes of the Meeting held on 22 April 1998 , WT/DSB/M/45, pp. 15 -16. 
416 See, e.g. Dispute Settlement Body, Minutes of the Meeting held on 22 June 1998, WT/DSB/M/46, 
pp. 17-18; Trade Policy Review Body, Trade Policy Review, United States , Minutes of Meeting held on 
12 and 14 July 1999, Addendum, Outstanding Responses to Questions, WT/TPR/M/56/Add.1, p. 25; Trade 
Policy Review Body, Trade Policy Review, Un ited States, Minutes of Meeting held on 
14 and 17 September  2001, Addendum, WT/TPR/M/88/Add.1, p. 242; Trade Policy Review Body, Trade Policy 
Review, United States, Minutes of Meeting held on 14 and 16 January 2004, Addendum, WT/TPR/M/126/Add.3, 
p. 117; Ne gotiating Group on Market Access, Non -Tariff Barriers Imposed by the United States Impeding and 
Prohibiting Cuba's Trade, Communication from Cuba, TN/MA/W/71, pp. 1 -12; Negotiating Group on Market 
Access, Market Access for Non -Agricultural Products, Non -Tariff Barriers - Requests, Communication from 
Cuba, TN/MA/NTR/2, pp. 6 -7; Trade Policy Review Body, Trade Policy Review, United States, Minutes of 
Meeting held on 22 and 24 March 2006, Addendum, WT/TPR/M/160/Add.1, pp. 162 -166; Trade Policy Review 
Body, Tra de Policy Review, United States, Minutes of Meeting held on 9 and 11 June 2008, Addendum, 
WT/TPR/M/ 200/Add.1, p. 165; Trade Policy Review Body, Trade Policy Review, United States, Record of 
Meeting held on 29 September and 1 October 2010, WT/TPR/M/235 , pp. 58-59; Trade Policy Review Body, 
Trade Policy Review, United States, Minutes of Meeting held on 16 and 18 December 2014, Addendum, 
WT/TPR/M/307/Add.1, p. 221; and Trade Policy Review Body, Trade Policy Review, United States, Minutes of 
Meeting held on 19 and 21 December 2016, Addendum, WT/TPR/M/350/Add.1, pp. 159 -160.