WT/DS597/R  
 
21 December 2022 
(22-9286) Page: 1/96 
  Original: English  
 
  
UNITED STATES – ORIGIN MARKING REQUIREMENT  
REPORT OF THE PANEL   
 
 WT/DS597/R  
 
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  TABLE OF CONTENTS  
 
1   INTRODUCTION  ................................ ................................ ................................ ........  14 
1.1   Complaint by Hong Kong, China  ................................ ................................ ................... 14 
1.2   Panel establishment and composition  ................................ ................................ ............ 14 
1.3   Panel proceedings  ................................ ................................ ................................ .......14 
1.3.1    General  ................................ ................................ ................................ .................. 14 
2   MEASUR E AT ISSUE  ................................ ................................ ................................ ... 15 
3   PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS  ................................  16 
4   ARGUMENTS OF THE PARTIES  ................................ ................................ ...................  16 
5   ARGUMENTS OF THE THIRD PARTIES  ................................ ................................ ........  16 
6   INTERIM REVIEW  ................................ ................................ ................................ ...... 16 
6.1   Introduction  ................................ ................................ ................................ ............... 16 
6.2   Requests for review concerning the order of analysis  ................................ ...................... 17 
6.3   Requests for review concerning whether Article XXI(b) of the GATT 1994 is self -judging such 
that it excludes any review of the challenged measure by a panel  ................................ ............ 17 
6.4   Requests for review concerning whether the origin marking requirement is inconsistent with 
Article IX:1 of the GATT 1994  ................................ ................................ .............................. 18 
6.5   Requests for review concerning whether the origin marking requirement is justified under 
Article XXI(b)(iii) of the GATT 1994  ................................ ................................ ...................... 19 
7   FINDINGS  ................................ ................................ ................................ .................  20 
7.1   Introduction  ................................ ................................ ................................ ............... 20 
7.2   Order of analysis  ................................ ................................ ................................ ........ 21 
7.2.1    Which claims to consider first  ................................ ................................ .................... 21 
7.2.2    Whether to consider first the reviewability of action under Article  XXI(b) of the GATT  1994
 ................................ ................................ ................................ ................................ .......23 
7.3   Whether Article  XXI(b) of the GATT  1994 is self -judging such that it excludes any review of 
the challenged measure by a panel  ................................ ................................ ...................... 24 
7.3.1    Introduction  ................................ ................................ ................................ ............ 24 
7.3.2   The interpretive question at issue  ................................ ................................ .............. 24 
7.3.3    Ordinary meaning  ................................ ................................ ................................ ....26 
7.3.3.1    Introduction  ................................ ................................ ................................ ......... 26 
7.3.3. 2   Grammatical structure  ................................ ................................ ........................... 26 
7.3.3.2.1    Arguments of the parties and the third parties  ................................ ....................... 26 
7.3.3.2.2    Panel's assessment  ................................ ................................ ............................ 27 
7.3.3.2.2.1    Whether the chapeau  together with each subparagraph constitute a single relative 
clause  ................................ ................................ ................................ ............................... 28 
7.3.3.2.2.2    What the phrase "which it considers" relates to  ................................ ................... 30 
7.3.3.3    Comparison of the three authentic language versi ons ................................ ................ 32 
7.3.3.3.1    Arguments of the parties and the third parties  ................................ ....................... 33 
7.3.3.3.2    Panel's assessment  ................................ ................................ ............................ 34 
7.3.3.4    Conclusion on ordinary meaning  ................................ ................................ ............. 36 
7.3.4    Context  ................................ ................................ ................................ .................. 37 WT/DS597/R  
 
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  7.3.4.1    Introduction  ................................ ................................ ................................ ......... 37 
7.3.4.2    Immediate context in the remaining paragraphs of Article  XXI ................................ ....37 
7.3.4.2.1    Arguments of the parties and the third parties  ................................ ....................... 38 
7.3.4.2.2    Panel's assessment  ................................ ................................ ............................ 38 
7.3.4.3    Article  XX of the GATT  1994 ................................ ................................ ................... 39 
7.3.4.3.1    Arguments of the parties and the third parties  ................................ ....................... 40 
7.3.4.3.2    Panel's assessment  ................................ ................................ ............................ 40 
7.3.4.4    Provisions that vest judgment in the Member or in an other entity  ............................... 41 
7.3.4.4.1    Arguments of the parties and the third parties  ................................ ....................... 41 
7.3.4.4.2    Panel's assessment  ................................ ................................ ............................ 41 
7.3.4.5    Other provisions under the DSU  ................................ ................................ .............. 44 
7.3.4.5.1    Arguments of the parties and the third parties  ................................ ....................... 44 
7.3.4.5.2    Panel's assessment  ................................ ................................ ............................ 44 
7.3.5    Object and purpose  ................................ ................................ ................................ ..44 
7.3.5.1    Arguments of the parties and the third parties  ................................ .......................... 45 
7.3.5.2    Panel's assessment  ................................ ................................ ............................... 45 
7.3.6    Whether there is a subsequent agreement regarding the interpretation or application of 
Article  XXI(b)  ................................ ................................ ................................ .................... 47 
7.3.6.1    Arguments of the parties and the third parties  ................................ .......................... 47 
7.3.6.2    Panel's assessment  ................................ ................................ ............................... 47 
7.3.7    Conclusion on interpretation under Article  31 of the Vienna  Convention  .......................... 49 
7.3.8    Negotiating history or other supplementary means of interpretation  ............................... 50 
7.3.8.1    GATT (and ITO) negotiations  ................................ ................................ .................. 50 
7.3.8.2    Uruguay Round negotiations  ................................ ................................ ................... 55 
7.3.9    Other information submitted by the parties or third parties  ................................ ........... 56 
7.3.10    Overall conclusion on the interpretive question at issue  ................................ .............. 57 
7.4   Whether the origin marking requirement is inconsistent with Article  IX:1 of the GATT  1994 .58 
7.4.1    Introduction  ................................ ................................ ................................ ............ 58 
7.4.2    Factual background on the meas ure at issue  ................................ ............................... 59 
7.4.3    Whether the challenged measure is a marking requirement under Article  IX:1 ................ 60 
7.4.4    Like products  ................................ ................................ ................................ .......... 60 
7.4.5    Less favourable treatment  ................................ ................................ ........................ 61 
7.4.5.1    Introduction  ................................ ................................ ................................ ......... 61 
7.4.5.2    Difference in treatment  ................................ ................................ .......................... 62 
7.4.5.2.1    Whether there is a difference in treatment with respect to origin determination  ......... 63 
7.4.5.2.1.1    Arguments of the parties and the third parties  ................................ .................... 63 
7.4.5.2.1.2    Panel's assessment  ................................ ................................ .......................... 64 
7.4.5.2.2    Whether there is a difference in treatment with respect to terminology  ..................... 67 
7.4.5.2.2.1    Arguments of the parties and the third parties  ................................ .................... 67 
7.4.5.2.2.2    Panel's assessment  ................................ ................................ .......................... 68 
7.4.5.3    Detrimental impact  ................................ ................................ ............................... 69 WT/DS597/R  
 
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  7.4.5.3.1    Arguments of the parties and the third parties  ................................ ....................... 69 
7.4.5.3.2    Panel's assessment  ................................ ................................ ............................ 70 
7.4.6    Conclusion on Article  IX of the GATT  1994 ................................ ................................ ..72 
7.5   Whether the origin marking requirement i s justified under Article  XXI(b)(iii) of the GATT  1994
 ................................ ................................ ................................ ................................ .......73 
7.5.1    Introduction  ................................ ................................ ................................ ............ 73 
7.5.2    Which subparagraph to review in Article  XXI(b)  ................................ ........................... 74 
7.5.3    Order of analysis under Article  XXI(b)  ................................ ................................ ........ 74 
7.5.4    Review of subparagraph (iii)  ................................ ................................ ..................... 75 
7.5.4.1    Interpretation of the phrase "emergency in international relations"  ............................. 75 
7.5.4.1.1    Arguments of the parties and  the third parties  ................................ ....................... 76 
7.5.4.1.2    Panel's assessment  ................................ ................................ ............................ 77 
7.5.4.1.2.1    Ordinary meaning  ................................ ................................ ............................ 77 
7.5.4.1.2.2    Context and object and purpose  ................................ ................................ ........ 80 
7.5.4.1.2.3    Conclusion on the interpretation of the phrase "emergency in international relations"
 ................................ ................................ ................................ ................................ .......83 
7.5.4.2    Whether the situation at issue is one that constitutes an emergency in international 
relations  ................................ ................................ ................................ ........................... 85 
7.5.4.2.1    Arguments of the parties and the third parties  ................................ ....................... 85 
7.5.4.2.2    Panel's assessment  ................................ ................................ ............................ 86 
7.5.4.2.2.1    Evidence submitted by the United  States  ................................ ............................ 86 
7.5.4.2.2.2    Overall assessment  ................................ ................................ .......................... 92 
7.5.5    Conclusion on Article  XXI(b)(iii) of the GATT  1994 ................................ ....................... 94 
7.6   Other claims under the GATT  1994, the ARO, and the TBT  Agreement  .............................. 94 
8   CONCLUSIONS AND RECOMMENDATION  ................................ ................................ ... 95 
 
 WT/DS597/R  
 
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  LIST OF ANNEXES  
ANNEX A  
WORKING PROCEDURES OF THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures concerning Business Confidential Information 
(BCI)  11 
Annex  A-3 Additional Working Procedures concerning Substantive Meetings with Remote 
Participation  13 
ANNEX B  
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of Hong Kong, China  18 
Annex  B-2 Integrated executive summary of the arguments of the United  States  39 
ANNEX C  
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of Brazil  63 
Annex  C-2 Integrated executive summary of the arguments of Canada  66 
Annex  C-3 Integrated executive summary of the arguments of China  71 
Annex  C-4 Integrated executive summary of the arguments of the European  Union   73 
Annex  C-5 Integrated executive summary of the arguments of Japan  77 
Annex  C-6 Integrated executive summary of the arguments of Norway  80 
Annex  C-7 Integrated executive summary of the arguments of the Russian  Federation  84 
Annex  C-8 Integrated executive summary of the arguments of Singapore  89 
Annex  C-9 Integrated executive summary of the arguments of Switzerland  94 
Annex  C-10 Integrated executive summary of the arguments of Ukraine  99 
 
 
  WT/DS597/R  
 
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  CASES CITED IN THIS REPORT  
Short Title  Full Case Title and Citation  
Argentina – Financial 
Services  Appellate  Body Report, Argentina – Measures Relating to Trade in Goods and Services , 
WT/DS453/AB/R  and Add.1,  adopted 9  May 2016, DSR  2016:II, p. 431  
Argentina – Hides and 
Leather  Panel  Report , Argentina – Measures Affecting the Export of Bovine Hides and the 
Import of Finished Leather , WT/DS155/R  and Corr.1 , adopted 16  February  2001, 
DSR 2001:V, p. 1779  
Argenti na – Import 
Measures  Panel  Report s, Argentina – Measures Affecting the Importation of Goods , 
WT/DS438/R  and Add.1 / WT/DS444/R  and Add.1 / WT/DS445/R  and Add.1, 
adopted 26  January  2015, as modified (WT/DS438/R) and upheld (WT/DS444/R / 
WT/DS445/R) by Appellate  Body Reports WT/DS438/AB/R / WT/DS444/AB/R / 
WT/DS445/AB/R, DSR 2015:II, p. 783  
Australia – Salmon  Appellate  Body Report, Australia – Measures Affecting Importation of Salmon , 
WT/DS18/AB/R , adopted 6  November  1998, DSR 1998:VIII, p. 3327  
Australia – Tobacco 
Plain Packaging  Panel  Reports, Australia – Certain Measures concerning Trademarks, Geographical 
Indications and other Plain Packaging Requirements applicable to Tobacco Products 
and Packaging , WT/DS435/R , Add.1 and Suppl.1 (Honduras)  / WT/DS441/R , Add.1 
and Suppl.1 (Dominican  Republic ) / WT/DS458/R , Add.1 and Suppl.1 (Cuba) / 
WT/DS467/R , Add.1 and Suppl.1 (Indonesia) , WT/DS458/R  and WT/DS467/R  
adopted 27  August  2018, DSR 2018:VIII, p. 3925, and WT/DS435/R  and 
WT/DS441/R  adopted 29  June 2020, as upheld by Appellate  Body Reports 
WT/DS435/AB/R / WT/DS441/AB/R, DSR 2018:VIII, p. 3925  
Brazil – Taxation  Panel  Report s, Brazil – Certain Measures Concerning Taxation and Charges , 
WT/DS472/R , Add.1 and Corr.1 / WT/DS497/R , Add.1 and Corr.1, adopted 
11 January  2019, as modified by Appellate  Body Reports WT/DS472/AB/R / 
WT/DS497/AB/ R 
Canada – Autos  Appellate  Body Report, Canada – Certain Measures Affecting the Automotive 
Industry , WT/DS139/AB/R , WT/DS142/AB/R , adopted 19  June 2000, DSR 2000:VI, 
p. 2985  
Canada – Autos  Panel  Report , Canada – Certain Measures Affecting the Autom otive Industry , 
WT/DS139/R , WT/DS142/R , adopted 19  June 2000, as modified by Appellate  Body 
Report WT/DS13 9/AB/R, WT/DS142/AB/R, DSR 2000:VII, p. 3043  
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  Panel  Report , Canada – Measures Relating to Exports of Wheat and Treatment of 
Imported Grain , WT/D S276/R , adopted 27  September  2004, upheld by 
Appellate  Body Report WT/DS276/AB/R, DSR 2004:VI, p. 2817  
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  
China – Auto Parts  Panel  Report s, China – Measures Affecting Imports of Automobile Parts , 
WT/DS339/R , Add.1 and Add.2 / WT/DS340/R , Add.1 and Add.2 / WT/DS342/R , 
Add.1 and Add.2, adopted 12  January  2009, upheld (WT/DS339/R) and as modif ied 
(WT/DS340/R / WT/DS342/R) by Appellate  Body Reports WT/DS339/AB/R / 
WT/DS340/AB/R / WT/DS342/AB/R, DSR 2009:I, p. 119  
China – Publications 
and Audiovisual 
Products  Panel  Report , China – Measures Affecting Trading Rights and Distribution Services 
for Certain Publications and Audiovisual Entertainment Products , WT/DS363/R  and 
Corr.1, adopted 19  January  2010, as modified by Appellate  Body Report 
WT/DS363/AB/R, DSR 2010:II, p. 261  
Colombia – Ports of 
Entry  Panel  Report , Colombia – Indicative Prices and Restrictions  on Ports of Entry , 
WT/DS366/R  and Corr.1, adopted 20  May 2009, DSR 2009:VI , p. 2535  
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  WT/DS597/R  
 
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  Short Title  Full Case Title and Citation  
EC – Bananas III  Panel Report s, European  Communities  – Regime for the Importation, Sale and 
Distribution of Bananas , WT/DS27/R/ECU  (Ecuador)  / WT/DS27/R/GTM , 
WT/DS27/R/HND  (Guatemala and Honduras)  / WT/DS27/R/MEX  (Mexico)  / 
WT/DS27/R/USA  (US), adopted 25  September 1997, as modified by Appellate  Body 
Report WT/DS27/AB/R , DSR 1997:II, p.  695 to DSR 1997:III, p.  1085 
EC – Bananas III  Appellate  Body Report, European  Communities  – Regime for the Importation, Sale 
and Distribution of Bananas , WT/DS27/AB/R , adopted 25  September  1997, DSR 
1997:II, p. 591  
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 th e 
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 – Seal Products  Appellate  Body Reports, European  Communities  – Measures Prohibiting the 
Importation and Marketing of Seal Products , WT/DS400/AB/R  / WT/DS401/AB/R , 
adopted 18  June 2014, DSR 2014: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  
India – Autos  Panel  Report , India – Measures Affecting the Automotive Sector , WT/DS146/R , 
WT/DS175/R , and Corr.1, adopted 5  April 2002, DSR 2002:V, p. 1827  
India – Patents (US)  Appellate  Body Report, India – Patent Protection for  Pharmaceutical and Agricultural 
Chemical Products , WT/DS50/AB/R , adopted 16  January  1998, DSR 1998:I, p. 9  
Indonesia – Autos  Panel  Report , Indonesia – Certain Measures Affecting the Automobile Industry , 
WT/DS54/R , WT/DS55/R , WT/DS59/R , WT/DS64/R , Corr.1 and Corr.2, adopted 
23 July 1998, and Corr.3 and Corr.4, DSR 1998:VI, p. 2201  
Indonesia – Import 
Licensing Regimes  Appellate  Body Report, Indonesia – Importation of Horticultural Products, Animals 
and Animal Products , WT/DS477/AB/R , WT/DS478/AB/R , and Add.1, adopted 
22 November  2017, DSR 2017:VII, p. 3037  
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  
Japan – Film Panel  Report , Japan – Measures Affecting Consumer Photographic Fi lm and Paper , 
WT/DS44/R , adopted 22  April 1998, DSR 1998:IV, p. 1179  
Korea – Radionuclides  Appellate  Body Report, Korea – Import Bans, and Testing and Certification 
Requirements for Radionuclides , WT/DS495/AB/R  and Add.1, adopted 26  April 2019 
Korea – Radionuclides  Panel  Report , Korea – Import Bans, and Testing and Certification Requirements for 
Radionuclides , WT/DS495/R  and Add.1, adopted 26  April 2019, as modified by 
Appellate  Body Report WT/DS495/AB/R  
Korea – Various 
Measures on Beef  Appellate  Body Report, Korea – Measures Affecting Imports of Fresh, Chilled and 
Frozen Beef , WT/DS161/AB/R , WT/DS169/AB/R , adopted 10  January  2001, DSR 
2001:I, p. 5  
Mexico – Taxes on Soft 
Drinks  Panel  Report , Mexico – Tax Measures on Soft Drinks and Other Beverages , 
WT/DS308/R , adopted 24  March  2006, as modif ied by Appellate  Body Report 
WT/DS308/AB/R, DSR 2006:I, p. 43  
Russia – Railway 
Equipment  Panel  Report , Russia – Measures Affecting the Importation of Railway Equipment 
and Parts Thereof , WT/DS499/R  and Add.1, adopted 5  March  2020, as modified by 
Appellate  Body Report WT/DS499/AB/R  
 
Russia – Traffic in 
Transit  Panel  Report , Russia – Measures Concerning Traffic in Transit , WT/DS512/R  and 
Add.1, adopted 26  April 2019 
Saudi Arabia – IPRs Panel  Report , Saudi Arabia – Measures Concerning the Protection of Intellectual 
Property Rights , WT/DS567/R  and Add.1, circulated to WTO Members on 
16 June 2020, dispute t erminated while appeal  pending   
Thailand – Cigarettes 
(Philippines)  Panel  Report , Thailand – Customs and Fiscal Measures on Cigarettes from the 
Philippines , WT/DS371/R , adopted 15  July 2011, as modified by Appellate  Body 
Report WT/DS37 1/AB/R , DSR 2011:IV, p. 2299  
Thailand – Cigarettes 
(Philippines)  Appellate  Body Report, Thailand – Customs and Fiscal Measures on Cigarettes from 
the Philippines , WT/DS371/AB/R , adopted 15  July 2011, DSR 2011:IV, p. 2203  WT/DS597/R  
 
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  Short Title  Full Case Title and Citation  
Turkey – Rice Panel  Report , Turkey – Measures Affecting the Importation of Rice , WT/DS334/R , 
adopted 22  October  2007, DSR 2007:VI, p. 2151  
US – Clove Cigarettes  Appellate  Body Report, United  States  – Measures Affecting the Production and Sale 
of Clove Cigarettes , WT/DS406/AB/R , adopted 24  April 2012, DSR 2012:XI, p. 5751  
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  
US – FSC  
(Article  21.5 – EC) Panel  Report , United  States  – Tax Treatment for "Foreign Sales Corporations" – 
Recourse to Article  21.5 of the DSU by the European  Communities , WT/DS108/RW , 
adopted 29  January  2002, as modified by Appellate  Body Report WT/DS108/AB/RW, 
DSR 2002:I, p. 119  
US – FSC  
(Article  21.5 – EC) Appellate  Body Report, United States  – Tax Treatment for "Foreign Sales 
Corporations" – Recourse to Article  21.5 of the DSU by the European  Communities , 
WT/DS108/AB/RW , adopted 29  January  2002, DSR 2002:I, p. 55  
US – Poultry ( China)  Panel  Report , United  States  – Certain Measures Affecting Imports of Poultry from 
China , WT/DS392/R , adopted 25  October  2010, DSR 2010:V, p. 1909  
US – Renewable 
Energy  Panel  Report , United  States – Certain Measures Relating  to the Renewable Energy 
Sector , WT/DS510/R  and Add.1, circulated to WTO Members 27  June 2019, 
appealed on 15 August 2019  
US – Shrimp  Panel  Report , United  States  – Import Prohibition of Certain Shrimp and Shrimp 
Products , WT/DS58/R  and Corr.1, adopted 6  November  1998, as modified by 
Appellate  Body Report WT/DS58/AB/R, DSR 1998:VII, p. 2821  
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 – Softwood  
Lumber V  Appellate  Body Report, United  States  – Final Dumping Determination on Softwood 
Lumber from Canada , WT/DS264/AB/R , adopted 31  August  2004, DSR 2004:V, p. 
1875 
US – Softwood  
Lumber V (Article  21.5 
– Canada)  Appellate  Body Report, United  States  – Final Dumping Determination on Softwood 
Lumber from Canada – Recourse to Article  21.5 of the DSU by Canada , 
WT/DS264/AB/RW , adopted 1  September  2006, DSR 2006:XII, p. 5087  
US – Tariff Measures 
(China)  Panel  Report , United  States – Tariff Measures on Certain Goods from China , 
WT/DS543/R  and Add.1 , circulated to WTO Members 1 5 September  2020, appealed 
on 26 October 2020  
US – Tuna II (Mexico)  Appellate  Body Report, United  States  – Measures Concerning the Importation, 
Marketing and Sale of Tuna and Tuna Products , WT/DS381/AB/R , adopted 
13 June 2012, DSR 2012:IV, p. 1837  
US – Tuna II (Mexico) 
(Article  21.5 – Mexico)  Appellate  Body Report, United  States  – Measures Concerning the Importation, 
Marketing and Sale of Tuna and Tuna Products – Recourse to Article  21.5 of the DSU 
by Mexico , WT/DS381/AB/RW  and Add.1, adopted 3  December  2015, DSR 2015:X, 
p. 5133  
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/DS597/R  
 
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EXHIBITS REFERRED TO IN THIS REPORT  
Panel 
Exhibit  Title Short title  
HKG-3 19 C.F.R. Part 134   
HKG-4 USCBP Ruling Letter HQ 731701 Re: Country of Origin Marking of 
Children 's Computer Games (26  January  1990)   
HKG-5 USCBP Ruling Letter HQ 731701 Re: Country of origin marking for 
products of Hong Kong imported on or after July 1, 1997 (27 June 
1997)   
HKG-6 62 Fed. Reg. 30927 (5  June 1997)   
HKG-7 USCBP Ruling Letter N306315 Re: The Country of Origin Marking of 
Body Spray Mists (2  October  2019)   
HKG-8 USCBP Ruling Letter N308366 Re: The country of origin and marking of 
an electronic table top score board from Hong Kong (8  January  2020)   
HKG-12 USCBP, Frequently Asked Questions – Guidance on Marking of Goods of 
Hong Kong – Executive Order 13936 (last modified 6  October  2020)  USCBP Guidance on 
Marking of Goods of 
HKG – Executive 
Order 13936  
HKG-16 22 U.S.C. § 5725, Secretary of State report regar ding the autonomy of 
Hong Kong (27  November  2019)   
HKG-17 Information Letter dated 8  October  2020 from USCBP to Ms. Brenda A. 
Jacobs Re: Country of origin marking of goods produced in Hong Kong, 
HQ H313080  8 October  2020 
USCBP Letter  
HKG-20 Marks of Orig in, Report by Working Party as adopted by the 
CONTRACTING PARTIES at their meeting of 21  November  1958, GATT 
document L/912/Rev.1 (22  November  1958)  1958 GATT Decision  
USA-2, 
HKG-13  Executive Order 13936 on Hong Kong Normalization of July  14, 2020, 
85 Fe d. Reg. 43413 (July  17, 2020)  Executive Order 
13936  
USA-3, 
HKG-14 United  States -Hong Kong Policy Act of 1992, Pub. L. 102 -383, codified 
at 22 U.S.C. § 5701 -5732 1992 Hong Kong 
Policy Act  
USA-4 Hong Kong Human Rights and Democracy Act of 2019, Pub. L. 116-76 2019 Hong Kong  
Human Rights and 
Democracy  Act 
USA-5 2020 Hong Kong Policy Act Report (May  28, 2020)  2020 H ong Kong  
Policy Act Report  
USA-6 2021 Hong Kong Policy Act Report (March 31, 2021)  2021 H ong Kong  
Policy Act Report  
USA-7, 
HKG-10 Department  of Homeland Security, U.S. Customs and Border Protection 
[CBP Dec. 20 -15], Country of Origin Marking of Products of Hong Kong, 
85 Fed. Reg. 48551 (August  11, 2020)  11 August Federal 
Register Notice  
USA-8 Revisions to the Export Administration Regulations: Suspension of 
License Exceptions for Hong Kong, 85 Fed. Reg. 45998 (July  31, 2020)   
USA-9 Hong Kong Autonomy Act, Pub. L. 116 -149 2020 Hong Kong 
Autonomy Act  
USA-10, 
HKG-2 Section  304(a) of the Tariff Act of 1930, 19  U.S.C. § 1304  
USA-15 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 of the Agenda, GATT/CP.3/38 (June 2, 1949)   
USA-16 Summary Record of the Twenty -Second Meet ing, GATT/CP.3/SR.22 
(June  8, 1949) & GATT/CP.3/SR.22/Corr.1 (June 20, 1949)  Minutes GATT 
meeting 8 and 
20 June 1949 
USA-25  Second Session of the Preparatory Committee of the United Nations 
Conference on Trade and Employment, E/PC/T/W/236 (July  4, 1947)   
USA-30 Second Session of the Preparatory Committee of the United Nations 
Conference on Trade and Employment, Verbatim Report, 
E/PC/T/A/PV/33 (July  24, 1947); & Second Session of the Preparatory 
Committee of the United Nations Conference on Trade an d 
Employment, Corrigendum to Verbatim Report, E/PC/T/A/PV/33.Corr.3 
(July 30, 1947)   Minutes of the 24 
and 30  July 1947 
Negotiation 
Meetings  
USA-41 United Nations Conference on Trade & Employment, Sixth Committee: 
Organization, Amendment to Article  94 Pr oposed by the United 
Kingdom Delegation, E/CONF.2/C.6/W.48 (Jan. 16, 1948)  UK proposal on 
Article  94 
USA-42 United Nations Conference on Trade & Employment, Sixth Committee, 
Notes of the Fourth Meeting (Article  94), E/CONF.2/C.6/W.60 & 
E/CONF.2/C.6/W.60/C orr.1 (Jan. 20, 1948)   WT/DS597/R  
 
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  Panel 
Exhibit  Title Short title  
USA-43 Report of the Second Session of the Preparatory Committee of the 
United Nations Conference on Trade and Employment – Draft Charter, 
E/PC/T/A/SR/186 (Sep. 10, 1947)   
USA-44 Negotiating Group on GATT Articles, Article  XXI Proposal by Nicaragua, 
MTN.GNG/NG7/W/48 (June  18, 1988)   
USA-45 Negotiating Group on GATT Articles, Communication from Argentina, 
MTN.GNG/NG7/W/44 (Feb. 19, 1988)   
USA-46 Negotiating Group on GATT Articles, Note on Meeting of 27 -
30 June 1988, MTN.GNG /NG7/8 (July  21, 1988)   
USA-52 Decision Concerning Article  XXI Of The General Agreement, L/5426 
(Dec. 2, 1982)   
USA-69 U.S. Delegation (Internal), Second Meeting of the U.N. Preparatory 
Committee for the International Conference on Trade and Development 
Geneva, Minutes of Delegation Meeting, July 2, 1947, NARA, Record 
Group 43, International Trade Files, Box 133, Folder marked "Minutes 
U.S. Delegation (Geneva 1947) June  21 – July 30, 1947." – 8:00 p.m. 
meeting – July 2, 1947   
USA-70 U.S. Delegation (Internal), Second Meeting of the U.N. Preparatory 
Committee for the International Conference on Trade and Development 
Geneva, Memorandum from Seymour J. Rubin dated July  14, 1947, 
NARA, Record Group 43, International Trade Files, Box 133, Folde r 
marked "Minutes U.S. Delegation (Geneva 1947) June  21 – July 30, 
1947." – July 14, 1947, Memo from Seymour J. Rubin, Legal Advisor of 
US Delegation, regarding Thorp and Neff Memo   
USA-73 U.S. Delegation (Internal), Department of State, Memorandum of 
Conversation, "Security Exceptions to Proposed ITO Charter" June  17, 
1946, NARA, Record Group 43, International Trade Files, In Folder "ITO 
Charter – Security" (June 17, 1946)   
USA-74 U.S. Delegation (Internal), Services Economic Disarmament Argument 
Draft ( 1946)   
USA-75 U.S. Delegation (Internal), Letter from Coppock to Wilcox, "National 
Security Provisions in the Draft Charter" July 3, 1946, NARA, Record 
Group 43, International Trade Files, Box 13, In Folder "ITO Charter – 
Security" July, 3 1946   
USA-76 U.S. Delegation (Internal), Second Meeting of the U.N. Preparatory 
Committee for the International Conference on Trade and Development 
Geneva, Minutes of Delegation Meeting, July  4, 1947, NARA, Record 
Group 43, International Trade Files, Box 133, Folder mar ked "Minutes 
U.S. Delegation (Geneva 1947) June  21 – July 30, 1947." – July 4, 
1947, at 2   
USA-112 Hong Kong 2020 Human Rights Report   
USA-117 The Law of the People's Republic of China on Safeguarding National 
Security in the Hong Kong Special Administrative Region, G.N.(E) 72 of 
2020, available at https://www.legco.gov.hk/yr19 -
20/chinese/panels/ca/papers/ajlscase20200707 -gne72 -ec.pdf   
USA-118 Leading democracy campaigner Nathan Law leaves Hong Kong, The 
Guardian (July 2, 2020) available at 
https://www.theguardian.com/world/2020/jul/02/leading -democracy -
campaigner -nathan -law-leaves -hong-kong  
USA-119 Pro-democracy leader Nathan Law leaves Hong Kong, CNN (July 3, 
2020) available at https://www.cnn.com/2020/07/02/asia/hong -kong-
nathan -law-intl/index.html   
USA-120 Hong Kong Activists Sentenced For Their Role In Anti -Government 
Protest, NPR (December 2, 2020) available at  
https://www.npr.org /2020/12/02/941032196/hong -kong-activists -
sentenced -for-their-role-in-anti-government -protest   
USA-121 Beijing's Hong Kong office warns pro -democracy poll could violate new 
security law, Reuters (July  13, 2020) available at 
https://www.reuters.com/article/us -hongkong -security/beijings -hong-
kong-office -warns -pro-demo cracy -poll-could -violate -new-security -law-
idUSKCN24F05Y   
USA-122 Hong Kong bars 12 opposition candidates from election, BBC News 
(July 30, 2020) available at https://www.bbc.com/news/world -asia-
china -53593187   
USA-123 Hong Kong opposition lawmakers all quit after four members ousted, 
The Guardian (November  11, 2020) available at 
https://www.theguardian.com/world/2020/nov/11/china -pro-
democracy -hong-kong-lawmakers -opposition -oust  WT/DS597/R  
 
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  Panel 
Exhibit  Title Short title  
USA-124 EU calls for "immediate release " of Hong Kong activists, AP News 
(January  6, 2021) available at https://apnews.com/article/europe -
democracy -hong-kong-arrests -china -
71296e353e67b68f7bba590bf7048122   
USA-125 Assault on Democracy in Hong Kong, Press Statement, Anthony J. 
Blinken, Secretary of State available at https://www.state.gov/assault -
on-democracy -in-hong-kong/   
USA-126 Hong Kong an nounces more electoral system changes favouring pro -
Beijing camp, Reuters (April  13, 2021) available at  
https://www.reuters.com/world/asia -pacific/hong -kong-announces -
more-electoral -system -changes -favouring -pro-beijing -camp -2021-04-
13/  
USA-127 Hong Kong Says Common Protest Slogan Calling for "Revolution " is 
Now Illegal Under National Security Law, Time (July 3, 2020) available 
at https://time.com/5862683/hong -kong-revolution -protest -chant -
security -law/  
USA-128 The Government of the Hong Kong Special Administrative Regio n, 
Government Statement (July 2, 2020) available at 
https://www.info.gov.hk/gia/general/202007/02/P2020070200869.htm   
USA-129 Hong Kong bans protests anthem in schools as fea rs over freedoms 
intensify, Reuters (July  8, 2020) available at  
https://www.reuters.com/ article/us -hongkong -protests -
education/hong -kong-bans-protest -anthem -in-schools -as-fears-over-
freedoms -intensify -idUSKBN2490OE   
USA-130 Hong Kong security law: Four students arrested for "inciting 
secession", BBC News (July  30, 2020) available at 
https://www.bbc.com/news/world -asia-china -53585747    
USA-131 Prominent Hong Kong Publisher Arrested Under New National Security 
Law, NPR (August  10, 2020) available at 
https://www.npr.org/2020/08/10/900758905/prominent -hong-kong-
publisher -arrested -under -new-national -security -law  
USA-132 Hong Kong: Jimmy Lai sentenced to 14 months for pro -democracy 
protests, BBC News (April  16, 2020) available at  
https://www.bbc.com/news/world -asia-56770567   
USA-133 Two Apply Daily executives char ged with collusion with foreign country, 
Reuters (June  18, 2021) available at 
https://www.reuters.com/world/china/hk -pro-democracy -tabloid -
apple -daily-increases -production -after-police -raid-2021-06-18/  
USA-134 Statement by President Joe Biden on Hong Kong 's Apple Daily, The 
White House Press Releases (June  24, 2021) available at 
https://www.whitehouse.gov/briefing -room/statements -
releases/2021/06/24/statement -by-president -joe-biden -on-hong-
kongs -apple -daily/    
USA-135 Nearly 130 civil servants fail to take required pledge of allegiance to 
Hong Kong government with most facing dismissal, South China 
Morning Post (April 19, 2021) available at 
https://sg.news.yahoo.com/nearly -130-civil-servants -fail-
095959794.html1  
USA-137 Hong Kong teachers' union to disband due to "drastic" political 
situation, Reuters (August  10, 2021) available at 
https://www.reuters.com/world/asia -pacific/hong -kong-teachers -
union -disband -due-drastic -political -situation -2021-08-10/   
USA-193 The New Shorter Oxford English Dictionary, 4th edn, L. Brown (ed.) 
(Clarendon Press, 1993), 806   
USA-197 Hong Kong University orders removal of Tiananmen Square massacre 
statue, The Guardian (October  8, 2021) available at 
https://www.theguardian.com/world/2021/oct/09/hong -kong-
university -orders -removal -of-tiananmen -square -massacre -statue    
USA-198 China Loyalty Oath Drives 72% of Hong Kong Councilors From Seats, 
Bloomberg News (October  21, 2021) available at 
https://www. bnnbloomberg.ca/china -loyalty -oath-drives -72-of-hong-
kong-councilors -from-seats-1.1670020?fr=operanews       
USA-199 Amnesty International to close Hong Kong offices due to national 
security law, The Guardian (October  25, 2021) available at 
https://www.theguardian.com/world/2021/oct/25/amnesty -
international -to-close-hong-kong-offices -due-to-national -securit y-law   
 
1 This link, submitted by the United  States , was not accessible on 29  September  2022. WT/DS597/R  
 
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  Panel 
Exhibit  Title Short title  
USA-200 Hong Kong police tell marathon runners to cover up 'political ' clothing 
and tattoos, The Guardian (October  25, 2021) available at 
https://www.theguardian.com/world/2021/oct/25/hong -kong-police -
tell-marathon -runners -to-cover -up-political -clothing -and-tattoos    
USA-209 Hong Kong pro -democracy news site closes after raid, arrests, AP News 
(December  29, 2021), available at 
https://apnews.com/article/business -media -crime -arrests -hong-kong-
2315777ace6e85c58eeb876c6c66feba    
USA-210 Media Fre edom Coalition Statement on Closure of Media Outlets in 
Hong Kong, Office of the Spokesperson, U.S. Department of State 
(February  8, 2022)    
USA-227 The New Shorter Oxford English Dictionary, 4th edn, L. Brown (ed.) 
(Clarendon Press, 1993)   
EU-1 Declaration by the High Representative, on behalf of the 
European  Union , on the announcement by China's National People's 
Congress spokesperson regarding Hong Kong (22  May 2020)   
EU-2 Hong Kong: Council expresses grave concern over national 
(22 July 2020)   
EU-3 Hong Kong: Declaration by the High Representative on behalf of the EU 
on the disqualification of Members of the Hong Kong Legislative Council 
security law (12  November  2020)   
EU-4 Hong Kong: Statement by the High Representative / Vice -President 
Josep Borrell on the changes to Hong Kong's electoral system 
(9 June 2021)   
EU-5 Third Party Written Submission by the European  Union  in United  States  
– Certain Measures on Steel and Aluminium Products  (DS544)  European  Union 's 
third-party 
submission in 
DS544  
 
 
 
 
  WT/DS597/R  
 
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ABBREVIATIONS USED IN THIS REPORT  
Abbreviation  Description  
8 October  2020 USCBP 
Letter  Information Letter dated 8  October  2020 from USCBP to Ms. Brenda A. Jacobs 
Re: Country of origin marking of goods produced in Hong Kong, HQ H313080  
11 August Federal 
Register Notice  Department of Homeland Security, U.S. Customs and Border Protection [CBP 
Dec. 20 -15], Country of Origin Marking of Products of Hong Kong, United  States  
Federal Register, Vol. 85, No.  155 (11 August 2020)  
1949 GATT Decision  GATT Council Decision in the GATT dispute US – Export Restrictions  
(Czechoslovakia)  
1992 Hong Kong Policy 
Act United  States -Hong Kong Policy Act of 1992, Pub. L. 102 -383, codified at 
22 U.S.C. § 5701 -5732 
2020 Hong Kong 
Autonomy  Act  Hong Kong Autonomy Act, Pub. L. 116 -149 
2019 Hong Kong Human 
Rights and Democracy 
Act Hong Kong Human Rights and Democracy Act of 2019, Pub. L. 116 -76 
2020 Hong Kong Policy 
Act Report  2020 Hong Kong Policy Act Report (May  28, 2020)  
2021 Hong Kong Policy 
Act Report  2021 Hong Kong Policy Act Report (March 31, 2021)  
GPA 2012  Agreement on Government Procurement as amended in 2012  
ARO Agreement on Rules of Origin  
CGLO  Chinese government's Central Government Liaison Office  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes  
Executive Order 13936  Executive Order 13936 on Hong Kong Normalization of 14  July 2020, 85 Fed. 
Reg. 43413 (17  July 2020)  
GATS  General Agreement on Trade in Services  
GATT  General Agreement on Tariffs and Trade  
Havana Charter  Final Charter of the International Trade Organization as adopted in March  1948 
HTSUS  Harmonized Tariff Schedule of the United  States  
ICJ International Court of Justice  
ILC International Law Commission  
ITO International Trade Organization  
ITO Charter  Draft text of the Charter of the International Trade Organization  
MFN Most-favoured nation  
Minutes GATT meeting 8 
and 20  June 1949 Summary Record of the Twenty -Second Meeting, GATT/CP.3/SR.22 (June  8, 
1949) & GATT/CP.3/SR.22/Corr.1 (June 20, 1949)  
NPCSC  National People's Congress Standing Committee  
National Security Law  Law of the People's Republic of China on Safeguarding National Security in the 
Hong Kong Special Administrative Region  
TFA Agreement on Trade Facilitation  
TBT Agreement   Agreement on Technical Barriers to Trade  
UN General Assembly  United Nations General Assembly  
UN Charter  Charter  of the United Nations  
TRIPS  Agreement  Agreement on Trade -Related Aspects of Intellectual Property Rights  
USCBP  United  States  Customs and Border Protection  
Vienna  Convention  Vienna  Convention  on the Law of Treaties, Done at Vienna, 23  May 1969, 1155 
UNTS 331; 8 International Legal Materials 6 79 
WTO World Trade Organization  
WTO Agreement  Marrakesh Agreement Establishing the World Trade Organization  
 WT/DS597/R  
 
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  1  INTRODUCTION  
1.1  Complaint by Hong Kong, China  
1.1.  On 30  October  2020, Hong Kong, China requested consultations with the United  States  
pursuant to Articles 1 and 4 of the Understanding on Rules and Procedures Governing the Settlement 
of Disputes (DSU), Article  XXII:1 of the General Agreement on Tariffs and Trade 1994 (GATT  1994), 
Article  7 of the Agreement on Rules of Origin (ARO), and A rticle 14.1 of the Agreement on Technical 
Barriers to Trade (TBT  Agreement ) with respect to the measures and claims set out below.2 
1.2.  Consultations were held on 24  November  2020.  
1.2  Panel establishment and composition  
1.3.  On 14  January  2021, Hong Kong, China requested the establishment of a panel pursuant to 
Articles 4.7 and 6 of the DSU, Article  XXIII:2 of the GATT  1994, Article  8 of the ARO, and Article  14.1 
of the TBT  Agreement  with standard terms of reference.3 At its meeting on 22  February  2021, the 
Dispute Settlement Body (DSB) established a panel pursuant to the request of Hong Kong, China in 
document WT/DS 597/5 , 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 Hong Kong, China in 
document WT/DS597/5 and to make 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 19 April 2021, Hong Kong, China requested the Director -General to determine the 
composition of the panel, pursuant to Article  8.7 of the DSU . On 29  April 2021, the Director -General  
accordingly composed the Panel as follows:  
Chairperson:  Ms Beatriz LEYCEGUI GARDOQUI  
 
Members:   Mr Johann H. HUMAN  
Mr Alexander Hugh McPHAIL  
 
1.6.  Brazil, Canada, China, the European  Union , India, Japan, the Republic of Korea, Norway, the 
Russian  Federation  (Russia), Singapore, Switzerland, Türkiye, and Ukraine notified their interest in 
participating in the Panel proceedings as third parties.  
1.3  Panel proceedings  
1.3.1   General  
1.7.  After consultation with the parties, the Panel adopted its Working Procedures6, Additional 
Working Procedures concerning Business Confidential Information7, and a partial timetable on 
21 May 2021. The Panel revised or complemented the timetable on 6  August  2021, 
29 September  2021, 21  December 2021, 25  January  2022, 28  April 2022, and 3 October  2022.   
 
2 Request for consultations by Hong Kong, China, WT/DS597/1. See also Communication from the 
United  States , WT/DS597/2.  
3 Request for the establishment of a panel by Hong Kong, China, WT/DS597/5 (Hong Kong, China's 
panel request).  
4 See WT/DSB/M/449, para.  5.5. 
5 WT/DS597/6.  
6 See the Panel's Working Procedures in Annex  A-1. 
7 See Additional Working Procedures concerning Business Confidential Information in Annex  A-2. Neither 
party submitted BCI to the Panel in these proceedings.  WT/DS597/R  
 
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  1.8.  Hong Kong, China and the United  States  submitted their first written submissions on 
28 May 20218 and 2  July 2021, respectively. On 16  July 2021, the Panel received third -party 
submissions from Brazil, Canada, China, the European  Union , Switzerland, and Ukraine.  
1.9.  The Panel held a first substantive meeting with the parties on 31  August  2021 and on 1, 14, 
and 15  September  2021. A session with the third parties took place on 1  September  2021. Given 
the continued pandemic situation, the meetin g was held by remote participation using the Webex 
platform , in accordance with the Additional Working Procedures concerning Substantive Meetings 
with Remote Participation adopted by the Panel on 6  August  2021.9 
1.10.   The Panel sent the parties written question s on 21  September  2021 and received their 
responses to those questions on 14  October  2021. On 21  September  2021, the Panel also sent 
written questions to the third parties. On 14  October  2021, the Panel received responses to 
questions from Brazil, Canada, China, the European  Union , Japan, Norway, Russia , Singapore, 
Switzerland, and Ukraine.10  
1.11.   Hong Kong, China and the United  States  submitted their second written submissions on 
11 November 2021.  
1.12.   The Panel held a second substantive meeting with the p arties on 9, 10, and 11  February  2022. 
The meeting was held by remote participation using the Webex platform and was conducted in 
accordance with the Additional Working Procedures concerning Substantive Meetings with Remote 
Participation.  
1.13.   The Panel sent t he parties a second set of written questions on 14  February  2022 and received 
their responses to those questions on 28  February  2022. On 14  March  2022, the Panel also received 
each party's comments on the other party's responses to the second set of questi ons.  
1.14.   On 10  May 2022, the Panel issued the descriptive part of its Report to the parties. The Panel 
issued its Interim Report to the parties on 25 October  2022. The Panel issued its Final Report to the 
parties on  6 December 2022 . 
2  MEASURE AT ISSUE  
2.1.  Hong Kong, China challenges the requirement applied by the United  States  as published by the 
United  States  Customs and Border Protection (USCBP) in the Federal Register Notice of 11  August 
2020 (11  August Federal Register Notice)11 that imported "goods produced  in Hong Kong, … may no 
longer be marked to indicate 'Hong Kong' as their origin, but must be marked to indicate 'China'"12 
(origin marking requirement).13 As Hong Kong, China explains in its panel request, USCBP published 
the 11 August Federal Register Notice  "pursuant to the 'Executive Order on Hong Kong 
Normalization ' signed by the President of the United  States  Donald J. Trump on 14  July 2020. The 
Execut ive Order suspends the application of Section  201(a) of the United  States -Hong Kong Policy 
Act of 1992, 22  U.S.C. § 5721(a), to a variety of United  States  statutes, including Section  304 of 
the Tariff Act of 1930."14 
2.2.  Hong Kong, China in its panel request identifies as "measures at issue"  the following:  
 
8 Following a request by the United  States , on 7  June 2021 Hong Kong, China provided a non -
confidential summary of its first written submission pursuant to Article  18.2 of the DSU.  
9 See Addit ional Working Procedures concerning Substantive Meetings with Remote Participation in 
Annex  A-3. 
10 The Panel had initially set the deadline for the responses to questions for 4 October 2021. Following 
requests from the United  States  and some third parties,  on 29  September  2021, the Panel decided to extend 
the deadline in light of the number of questions submitted to the parties and to the third parties.  
11 Department of Homeland Security, U.S. Customs and Border Protection [CBP Dec. 20 -15], Country of 
Origin Marking of Products of Hong Kong, 85 Fed. Reg. 48551  (11 August 2020), (11  August Federal Register 
Notice) , (Exhibits US A-7, HKG -10). 
12 Hong Kong, China 's panel request, p. 2.  
13 Hong Kong, China refers to the origin marking requirement as " the revised origin marking 
requirement". See Hong Kong, China's first written submission, para.  20.  
14 Hong Kong, China's panel request, p. 1. WT/DS597/R  
 
- 16 - 
 
  1. Section  304 of the Tariff Act of 1930, 19  U.S.C. § 1304;  
2. The USCBP regulations implementing Section  304, set forth at 19 C.F.R. Part 134;  
3. Title II of the United  States -Hong Kong Policy Act of 1992, 22 U.S.C. §§ 5721 -5724;  
4. The "Executive Order on Hong Kong Normalization" signed by the President of the 
United  States  Donald J. Trump on 14  July 2020;  
5. The USCBP, "Country of Origin Marking of Products of Hong Kong", 85 Fed. 
Reg. 48551 (11  August 2020 ).15 
2.3.  Additional information concerning these legal instruments and the factual background that led 
to the adoption of the origin marking requirement is set forth in Section  7 of this Report.  
3  PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS  
3.1.   Hong Kong, China requests that the Panel find that the origin marking requirement is 
inconsistent with the United  States ' obligations under Articles 2(c) and 2(d) of the ARO, Article  2.1 
of the TBT  Agreement , and Articles I:1 and IX:1 of t he GATT  1994.16 Hong Kong, China further 
requests that the Panel recommend that the United  States  bring its measures into conformity with 
its WTO obligations.17 
3.2.  The United  States  requests that the Panel find that the United  States  has invoked its essential  
security interests under Article  XXI(b) of the GATT  1994 and so report to the DSB.18 
4  ARGUMENTS OF THE PARTIES  
4.1.  The arguments of the parties are reflected in their executive summaries, provided to the Panel 
in accordance with paragraph 25 of the Working Pro cedures adopted by the Panel (see Annex  B). 
5  ARGUMENTS OF THE THI RD PARTIES  
5.1.  The arguments of Brazil, Canada, China, the European  Union , Japan, Norway, Russia , 
Singapore, Switzerland, and Ukraine are reflected in their executive summaries, provided in 
accord ance with paragraph 27 of the Working Procedures adopted by the Panel (see Annex  C). India, 
the Republic of Korea, and Türkiye did not submit written or oral arguments to the Panel.  
6  INTERIM REVIEW  
6.1  Introduction  
6.1.  On 25 October 2022, the Panel issued i ts Interim Report to the parties. On 8 November 2022, 
Hong Kong, China and the United States submitted their requests for the review of certain aspects 
of the Interim Report. On 22 November 2022, Hong Kong, China submitted comments on two of the 
 
15 Hong Kong, China's panel request, p. 2.  
16 Hong Kong, China 's first written submission, paras.  86-87; second written submission, para.  190. 
Hong Kong, China's panel request included claims under Article  2(e) of the ARO and Article  X:3(a) of the 
GATT  1994.  Hong Kong, China did not develop these claims in its first written submission, but rather 
"reserve[d] the right to develop those claims in subsequent submissions to the Panel, and to seek findings and 
recommendations in respect of those claims, depending on how the United  States  responds to the claims and 
arguments developed herein." (Hong Kong, China's first written submission, fn  64). Hong Kong, China did not 
develop its claims under Article  2(e) of the ARO and Article  X:3(a) in its subsequent submission s.    
17 Hong Kong, China's first written submission, para.  88. 
18 United  States ' first written submission, para.  329; second written submission, para.  219. We also 
note that a t the DSB meeting  on 22  February  2021, the United  States  stated that  the WTO could  not, 
consistent with Article  XXI of the GATT  1994, consider Hong Kong, China's claims or make the requested 
findings, and that  there was no basis for a WTO panel to review the claims of breach raised by Hong Kong, 
China or the invocation of Article  XXI (WT/DSB/M/449, para.  5.3).          WT/DS597/R  
 
- 17 - 
 
  United Sta tes' requests for review, while the United States indicated that it had no comments on 
Hong Kong, China's requests for review.  
6.2.  In accordance with Article 15.3 of the DSU, this section of the Report sets out the Panel's 
response to the parties' requests ma de at the interim review stage.  
6.3.  We have classified the parties' requests in three categories that we treat differently. The first 
category concerns requests to correct typographical errors, most of which we have corrected 
together with other such errors t hat we have also identified since the interim report was issued to 
the parties, and which we do not list here. The second category concerns requests for changes to 
the wording of the Interim Report that neither the other party nor we disagree with. We have  
implemented these changes, which serve to present the parties' arguments more accurately or to 
improve the consistency of the text, and we do not discuss them in detail below.19 The third category 
concerns certain requests made by the United States to mod ify the text, some of which Hong Kong, 
China commented on, and that we do not, or not fully, agree with or that prompted further changes 
on our part. We turn to describe those requests falling under the third category and explain the 
reasons for the change s we have made.  
6.4.  The numbering of some of the footnotes in the Report has changed from the numbering of the 
Interim Report. The discussion below refers to the numbering in this Report and, where it differs, 
includes the corresponding numbering of the Interi m Report.  
6.2  Requests for review concerning the order of analysis  
6.5.  Regarding paragraph 7.10, the United States requests the Panel to delete references to 
arguments raised by the United States in the context of the applicability of Article  XXI(b) of the 
GATT 1994 to other Annex 1A Agreements, and instead complement the United States' position on 
the findings that the Panel should make, given its invocation o f Article XXI(b).20  
6.6.  We have changed the wording in paragraph 7.10, albeit in a shorter version than the text 
proposed by the United States.  
6.3  Requests for review con cerning w hether Article XXI(b) of the GATT 1994 is self -
judging such that it excludes any review of the challenged measure by a panel  
6.7.  Regarding paragraph 7.17, in the second sentence the United States requests the deletion of 
the words "at all, whether" as well as the addition of language reflecting an argument that the United 
States makes regarding the availability of non -violation claims. The United States requests  these 
changes for reasons of transparency and to reflect its interpretation accurately.21   
6.8.  Paragraph 7.17, second sentence refers to the reviewability of the mea sure in this case. Non -
violation claims are not relevant to this issue as none have been made in this case. Therefore, we 
do not agree with the deletion of the words "at all, whether". As regards the proposed addition, we 
have included a reference to this broader argument of the United States in new footnote  59.   
6.9.  Regarding paragraph 7.50 and footnote 9122, the United States requests certain changes 
in the text of the paragraph to enhance accuracy and transparency and to provide the relevant 
context of the Panel's analysis. The United States also requests deletion of footnote 91 which quotes 
a paraphrase of the subparagraphs of Article XXI(b) that the United States uses in one of its 
submissions.23   
 
19 These changes have been made in the following paragraphs: 7.6, 7.9, 7.14, 7.18 and fn 62 thereto, 
7.29, 7.33, 7.36, 7.37, 7.38, 7.39, 7.41, 7.42, 7.46, 7.47, heading 7.3.3.2.2.1 , 7.48, 7.49, 7.50, 7.51, 7.52, 
7.53, 7.54, 7.57, 7.58, 7.63, 7.67, 7.68, 7.69, 7.75, 7.77, 7.78, 7.81 and fn 122 thereto, fn  126 to para. 7.82, 
7.84, 7.85, 7.86, 7.88, and 7.172 . This list refers to the numbering of the footnot es as they appear in this 
Report.  
20 United States' request for interim review, paras. 5 -8. 
21 United States' request for interim review, para. 10  
22 Fn 70 of the Interim Report.  
23 United States' request for interim review, para. 17.  WT/DS597/R  
 
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  6.10.   We have added some language to make clear that this paragraph conta ins our own analysis 
and conclusions. As for footnote 91, we decline deleting it. The footnote quotes the United States 
verbatim . It does not suggest that the par aphrase used by the United States in this quote is used 
throughout the submissions, nor that it is a basis on which treaty terms should be interpreted as 
argued by the United States.24  
6.11.   Regarding footnote 92 to paragraph 7.5225, the United States requests in footnote 92 a 
further citation as well as added language to elaborate on an argument.26  
6.12.    We have accepted the request and have made further changes in the subsequent footnote 
to refer to the new added l anguage.  
6.13.   Regarding paragraph 7.58 and footnote 9627, the United State s considers that the footnote 
misstates its argument and requests additional language to present the argument accurately and 
avoid confusion.28  
6.14.   We have added language to reflect the United States' position more clearly and have also 
added cross -references  to other parts of the Final Report where this position is presented in more 
detail.  
6.15.   Regarding paragraph 7.101 , the United States requests changes in order to prese nt its 
arguments and not to seek to (erroneously) characterize their aims. The United States furthermore 
requests the Panel to clarify that not all third parties to the dispute present views regarding 
Article  XXI(a).29  
6.16.   We note that this paragraph is in a section describing the Panel's assessment of the United 
States' arguments. To make clear that this is our own understanding of the implications of the United 
States' argument for the interpretation of Article XXI(b), we have slightly re -phrased the sentence.  
6.4  Requests for review concerning w hether the origin marking requirement is 
inconsistent with Article IX:1 of the GATT 1994  
6.17.   Regarding paragraph 7.206 , the United States requests that the Panel modify the first 
sentence of the paragraph and the corresponding footnote 284.30 According to the United States, 
the first sentence incorrectly summarizes the US position regarding the analysis under Article IX:1 
of the GATT 1994. The United States submits that it argues that the examination of less favourable  
treatment includes an assessment of "facts and circumstances" which is not necessarily limited to 
those relating to the regulatory objective of the measure at issue but is instead a "holistic 
examination" which can include the assessment of regulatory obj ective.31  
6.18.   Some of the changes suggested by the United States go beyond the focus of paragraph 7.206  
which is to express our disagreement with the United States onl y to the extent that it suggests that 
the legal standard of "less favourable treatment" under Article IX:1 includes an inquiry as to whether 
the detrimental impact is related, or can be explained by, the regulatory objective pursued by the 
measure at issue . We have, therefore, only partially accepted the United States' request and 
changed the wording of paragraph 7.206  and the relevant footnotes thereto.  
6.19.   Regarding paragraph 7.224 , the United States requests that the Panel replace the word 
"WTO Member" with the word "territory", because, according to the United States, the evid ence on 
record does not establish that the United States uses "WTO Member" as a basis to determine either 
origin or terminology to indicate origin.32  
 
24 United States' request for interim review, para. 17.  
25 Fn 71 of the Interim Report.  
26 United States' request for interim review, para. 20.  
27 Fn 75 in the Interim Report.  
28 United States' request for interim review, para. 21.  
29 United States' request for interim review, para. 23.  
30 Fn 263 of the Interim R eport.  
31 United States' request for interim review, para. 24.  
32 United States' request for interim review, para. 25.  WT/DS597/R  
 
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  6.20.   We have changed the wording of the first sentence of paragraph 7.224  to address the concern 
raised by the United States. For clarity and to improve the readability of the sentence, we have done 
so in a manner different from the proposed drafting change suggested by th e United States.  
6.21.   Regarding paragraph 7.233 , the United States requests that the Panel add the words "what 
we perceive" when referring to the US practice of "reservi ng" the name "China" to the People's 
Republic of China.33 The United States submits that the terminology "China" is not reserved for the 
People's Republic of China such that it cannot be used as origin marking for goods originating from 
Hong Kong, China, and that it is not established that the United States main tains a practice of 
reserving the same terminology for marking purposes that it might use for other purposes.34 Hong 
Kong, China disagrees and submits that the fact that the United States uses the term "China " to 
refer exclusively to the People 's Republic of China for origin marking purposes is not a matter of the 
Panel's "perception ".35 Hong Kong, China  considers that paragraph 7.233  does not require 
modification  but suggests a possible modification to address the United States' concern and better 
reflect the evidence on record and the parties' arguments.  
6.22.   Paragraph 7.233  addresses the United States' suggestion that the name "China" may be the 
United States' way of designating, for origin marking purposes, Hong Kong, China rather than the 
People's Republic of China. It is our understanding that (a) prior to the adoption of the  origin marking 
requirement, the United States accepted marks referring to "China" to indicate the origin of products 
from the People's Republic of China, and marks referring to "Hong Kong" to indicate the origin of 
products from Hong Kong, China; and (b) after the adoption of the origin marking requirement, the 
United States accepts marks referring to the name "China" to indicate the origin of products from 
the People's Republic of China and the origin of products from Hong Kong, China. Therefore, the 
evidence before the Panel establishes that neither before, nor after the adoption of the origin 
marking requirement, did the United States use the name "China" to designate Hong Kong, China 
and not the People's Republic of China.  
6.23.   We disagree with the United S tates to the extent that it suggests that this element described 
in paragraph 7.233  reflects the Panel's "perception" rather than facts supported by uncontested 
evidence. We therefore do not agree with the United States' request to add the words "what we 
perceive". However, we agree with the United States that the reference to "US practice reserving 
[the] name ["China"] to the People's Republic of China (while deali ng with Hong Kong, China 
separately) " may be unclear. For the sake of clarity, we have therefore changed the wording of the 
paragraph and added footnote 343 referring to the evidence on the record reflecting the United 
States' use of the name "China" to designate the origin of products from the People's Republic of 
China.   
6.5  Requests for review concerning whether the origin marking requirement is justified 
unde r Article XXI(b)(iii) of the GATT 1994  
6.24.   Regarding paragraph 7.305 , the United States requests that the Panel delete a reference to 
the parties not having raised argu ments regarding the role of the object and purpose of the 
GATT  1994 in interpreting the phrase "emergency in international relations" in Article XXI(b)(iii).36  
6.25.   We have deleted such reference and note in new footnote 430 that the parties submitted 
arguments on object and purpose in the context of expressing their views on whether Article XXI(b) 
is entirely or partly self -judging.  
6.26.   Regarding paragraph 7.318 , the United States requests that the Panel replace the word 
"observes" with the word "submits", when referring to Hong Kong, China's view on the status of its 
relations, i ncluding on trade matters, with the United States .37 Hong Kong, China requests that 
instead of making this change, the Panel modify the sentence to include a reference to its relations 
 
33 United States' request for interim review, para. 28.  
34 United States' request for interim review, para. 27.  
35 Hong Kong, China's comments on the United States' request for interim review, para. 4.  
36 United States' request for interim review, para. 29.  
37 United States' request for interim review, para. 30.  WT/DS597/R  
 
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  with the United States being affected by the origin marking requirement , as well as other actions 
taken pursuant to Executive Order 13936 not at issue in this dispute.38 
6.27.   We note that the United States' request concerns the description of Hong Kong, China's 
arguments. Therefore, we see no reason to reject the request to use th e word "submit" instead of 
"observe". In addition, we find it helpful to add the clarification that Hong Kong, China suggests. We 
have thus edited the paragraph accordingly.  
6.28.   Regarding paragraph 7.356 , the United States requests that the Panel delete a reference to 
the parallel drawn by the United States between the situation examined by the panel in Russia – 
Traffic in Transit  and the situation in the current disput e. According to the United States, it did not 
suggest that the "same parallel" between those situations is required to establish the existence of 
an emergency in international relations.39  
6.29.   We disagree with the United States' implication that by comparing the factual situation 
examined by the panel in Russia – Traffic in Transit  we are somehow requiring that the United States 
demonstrate a parallel between the situation in that case and in this one to establish the existence 
of an emergency in international  relations. Rather, as explained in paragraph 7.355 , we find it helpful 
to compare the situation before us with the previous cases where situations were found to constitute 
an emergency in international relations, to the extent that these may assist in determining whether 
the United  States has demonstrated  that the situation at issue is one that falls under 
Article  XXI(b)(iii). The situations in different cases will need to be assessed on the basis of the facts 
presented in each case and  will naturally differ. Nevertheless, a comparison may be instructive o n 
the type(s) of situation that could constitute an emergency in international relations, without such 
comparison implicating that the situations have to be the same or parallel in all cases. Moreover, 
the sentence that the United States requests the Panel  to delete was aimed at reflecting how we 
understand the United States to relate the situation in Russia – Traffic in Transit  to the one before 
us. For the sake of transparency and accuracy, we have therefore reproduced in the footnote to that 
sentence the  entirety of the United States' view and clarified that we are presenting our 
understanding of such view.  
7  FINDINGS  
7.1  Introduction  
7.1.  This dispute concerns a requirement in US law that goods produced in Hong Kong, China be 
marked to indicate that their origin is "China". The United  States  enacted this origin marking 
requirement in 2020 (together with other measures) in reaction to certain events in Hong Kong, 
China that prompted a determination in US law that Hong Kong, China was no longer "sufficiently 
autonomous t o justify differential treatment in relation to  the People's Republic of China".40 Hong 
Kong, China challenges the consistency of the US origin marking requirement  with the GATT  1994, 
the TBT  Agreement , and the ARO.  The claims relate primarily to the most -favoured nation (MFN) 
obligation.  In response, the United  States  invokes the security exception in Article  XXI(b) of the 
GATT  1994.  
7.2.  In over 70 years of existence, the dispute settlement systems, both under the WTO and before 
that under GATT, w ere not called upon to interpret the exception in Article  XXI(b).41 This has 
 
38 Hong Kong, China's comments on the United States' request for interim review, paras. 6 -7. 
39 United States' request for interim review, para. 31.  
40 United  States ' first written submission, para.  2 (quoting Executive Order 13936  on Hong Kong 
Normalization  of 14 July 2020, 85  Fed. Reg. 43413 ( 17 July 2020) ), (Exhibit USA-2)). 
41 For a comprehensive overview o f the history  of invocations of Article  XXI both inside and outside 
dispute settlement,  see Panel  Report , Russia – Traffic in Transit , Appendix.  WT/DS597/R  
 
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  changed in recent years. Several disputes concerning the security exception have been brought42, 
two panel reports have already been issued43, and others are forthcoming as we wri te this Report.44  
7.3.  In this dispute, as in the other disputes, the respondent's invocation of Article  XXI(b) has 
triggered differences of interpretation among the parties and third parties about the reviewability of 
the invoking Member's action under the se curity exception. This is a systemic issue of fundamental 
importance. However, the invocation of Article  XXI(b) has also raised another, equally important 
systemic issue, which is the applicability of the security exception to agreements in Annex  1A other  
than the GATT  1994, namely to  the ARO and the TBT  Agreement  at issue in this dispute.  
7.4.  With the parties' and third parties' input we have explored and carefully considered these 
systemic issues, consistent with our task under Article  11 of the DSU. However, in preparing this 
Report, we have narrowly tailored our analysis, mindful of the aim of the dispute settlement 
mechanism, as stated in Article  3.7 of the DSU, which is to secure a positive solution to the dispute.  
7.2  Order of analysis  
7.5.  In this sectio n, we address two order of analysis questions. The first concerns which of Hong 
Kong, China's claims to examine first. This choice determines which of the above systemic issues 
arising from the United  States ' invocation of Article  XXI(b) would become relev ant. The claims under 
the GATT  1994 raise (only) the issue of reviewability of action under Article  XXI(b), whereas the 
claims under the ARO and the TBT  Agreement  raise the additional threshold issue of whether 
Article  XXI(b) is at all applicable to those claims. The choice of which claim to examine first, thus, 
determines which of these systemic issues arises first.  
7.6.  The second order of analysis question then concerns where, in the analysis of the chosen claim, 
to address the specific systemic issue that ma y have arisen.  
7.2.1   Which claims  to consider first  
7.7.  The claims brought by Hong Kong, China relate to the MFN non -discrimination obligation under 
Article  2(d) of the ARO, Article  2.1 of the TBT  Agreement, and Articles I:1 and IX:1 of the 
GATT  1994. Hong Kong, Ch ina also raises a claim regarding the requirements  for the determination 
of origin under Article  2(c) of the ARO.  
7.8.  Our task, therefore, is to decide which agreement and which claim to start our analysis with.  
7.9.  Hong Kong, China requests that we first examine  its claims under the ARO or the 
TBT Agreement, before proceeding, if necessary, with those under the GATT  1994.45 In Hong Kong, 
China's view "the ARO is the agreement that deals most specifically, and in detail, with the subject 
matter of the dispute, nam ely the rules for determining the country of origin as they apply to origin 
marking requirements".46 More generally, Hong Kong, China considers that both the ARO and the 
 
42 Apart from the other cases mentioned in the next two footnotes, in United Arab Emirates – Goods, 
Services and IP rights  a panel was established to review measures that the United Arab Emirates considered to 
have been adopted to protect  its essential security interests (see WT/DSB/M/404, para.  3.3), the panel 
accepted the parties' request to suspend its proceedings, and the panel's authority subsequently lapsed (see 
Note by the Secretariat, DS526/7).  
43 Panel  Report s, Russia – Traffic in Transit (concerning Article  XXI(b) of the GATT  1994) and Saudi 
Arabia – IPRs (concerning Article  73(b) of the TRIPS  Agreement ). The panel report in Saudi Arabia – IPRs was 
circulated in June 2020 and Saudi Arabia filed an appeal the same month . On 21 April 2022, Qatar notified the 
DSB that it had agreed to terminate this dispute, and that it would not seek adoption of the panel report  
(WT/DS567/11) . While the report, th us, remains unadopted, we agree with prior adjudicators that "a panel 
could nevertheless find useful guidance in the reasoning of an unadopted panel report that it considered to be 
relevant." ( Panel  Report , Japan – Alcoholic Beverages II , para.  6.10;  Appel late Body Report, Japan - Alcoholic 
Beverages II  DSR 1996:I, 97 , p. 10).   
44 See the following notifications to the DSB in US – Steel and Aluminium Products , WT/DS544/1 3 
(China), WT/DS547/1 3 (India), WT/DS552/1 5 (Norway), WT/DS554/ 22 (Russia), WT/DS556/ 20 (Switzerland), 
WT/DS564/ 20 (Turkey ). Note that in DS548 (European  Union ), the parties referred the matter to an arbitration  
proceeding pursuant to Article  25 of the DSU , which is currently suspended (WT/DS548/19).  
45 Hong Kong, China 's first written submission, paras.  86-87; response to Panel question No.  2, 
paras.  6-7. 
46 Hong Kong, China's response to Panel question No.  2, para.  6. (footnote omitted)  WT/DS597/R  
 
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  TBT Agreement are the more detailed and more specialized agreements pertaining to the subject 
matter of this dispute relative to the GATT  1994.47   
7.10.   The United  States  submits that the Panel is free to consider the issues presented to it in any 
order that it deems fit.  However, consistent with its view that Article XXI(b) is self -judging, the  
United States considers that  the Panel should only note  the United States' invocation of 
Article  XXI(b).48  
7.11.   We note that  panels are generally free to structure the order of their analysis as they see fit49, 
provided that their analysis is consistent with the structure and logic of the provisions at issue in 
each dispute.50 However, there may be situations where a particular order is compelled, which, if 
not followed, might constitute an error of law.51 Furthermore, in previous disputes, adjudicators 
have dealt with issues concerning the sequence of analysis by seeking to identify the agreement 
that "deals specifically, and in detail, with" the measures at issue.52 On this basis, we turn to 
examin ing how best to structure our analysis.  
7.12.   We see nothing in these provisions to indicate that there is a mandatory sequence of analysis 
to be followed. Moreover, Hong Kong, China has not argued that disposing first of its claims under 
the GATT  1994 would somehow p re-empt or affect our analysis under the ARO or the 
TBT Agreement.  
7.13.    Turning to the question of which claim may more specifically and in more detail deal with the 
subject matter of the dispute , the parties agree that the measure at issue is an origin markin g 
requirement.53 The parties do not agree, however, on whether this origin marking requirement also 
constitutes a rule of origin.54 That difference in view can only be resolved in connection with the 
relevant claim under the ARO.  
7.14.   Article  IX:1 of the GATT  1994 concerns specifically , and only,  origin marking requirements55, 
such as the one at issue in this case. In contrast, Article  I:1 of the GATT  1994 applies to a broad 
category of measures.56 Similarly, the ARO and the TBT  Agreement  apply to broader categ ories of 
measures. The TBT  Agreement  applies to technical regulations and standards (including those 
providing for "marking … requirements" more generally), as defined in its Annex  1, and the ARO 
applies to rules of origin, as defined in its Article  1. Therefore , Article  IX:1 of the GATT  1994 applies 
more specifically to origin marking requirements and thus deals in more detail with the measure at 
issue in this case. Moreover, Hong Kong, China raised MFN claims under non -discrimination 
provisions in the thr ee agreements. We acknowledge that the ARO  and the TBT  Agreement contain 
obligations that are more detailed as compared with those in Article  IX with respect to those 
measures subject to their disciplines. Nonetheless, in the context of this dispute, there  are claims 
with respect to non -discrimination (MFN, in particular), which are similarly set out across the three 
 
47 Hong Kong, China's response to Panel question No.  2, para.  7. 
48 United  States ' first written submission, para.  328. 
49 Appellate  Body Report, Canada – Wheat Exports and Grain Imports , paras.  126-129. 
50 Appellate  Body Reports, Canada – Autos , para.  151; and Canada – Wheat Exports and Grain Imports , 
para. 109. 
51 Panel  Report , India – Autos , para.  7.154.  
52 Appellate  Body Reports, Canada – Renewable Energy / Canada – Feed-in Tariff Program , paras.  5.6-
5.8 (referring to Appellate  Body Report, EC – Bananas III , para.  204; and Panel  Report s, Indonesia – Autos , 
paras.  14.61 -14.63; EC – Banan as III , paras.  7.185 -7.187; Canada – Autos , paras.  10.63 -10.64; and India – 
Autos , paras.  7.157 -7.162).  
53 Hong Kong, China's first written submission, para s. 16, 20, and 71 . United  States ' first written 
submission, para.  22; response to Panel question No.  4, paras.  15-17. 
54 Hong Kong, China's first written submission, paras.  17-21. United  States ' second written submission, 
paras.  159-165; see also response s to Panel question No.  4, paras.  15-17, and No.  5, paras.  18-20. 
55 Panel  Report s, Austral ia – Tobacco Plain Packaging , paras.  7.2997 -7.3021. That panel found that 
Article  IX is circumscribed to laws and regulations that apply to marks of origin . (Ibid. paras.  7.2999, 7.3001, 
and 7.3021)  
56 Namely,  any advantage, favour, privilege or immunity  with respect to: " customs duties and charges 
of any kind imposed on or in connection with importation or exportation or imposed on the international 
transfer of payments for imports or exports ", "the method of levying such duties and charges ", "all rules and 
formalities in connection with importation and exportation ", and "all matters referred to in paragraphs 2 and 4 
of Article  III". WT/DS597/R  
 
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  agreements.57 We therefore disagree with Hong Kong, China that the agreement that deals most 
specifically and in detail with the origin markin g requirement at issue is the ARO.  
7.15.   Based on the foregoing, we consider it appropriate to start our analysis with Hong Kong, 
China's claim under Article  IX:1 of the GATT  1994. As noted in the introduction of this section, this 
means that the systemic issue that arises is that of the reviewability of action under Article  XXI(b).  
7.16.   We, therefore, now turn to the second order of analysis question of where in the analysis of 
Article  IX:1 to address that systemic issue of reviewability, and in particular, whether to address it 
first, as requested by the United  States .  
7.2.2   Whether to consider first the reviewability of action under Article  XXI(b) of the 
GATT  1994   
7.17.   As noted above, the United  States  requests the Panel to find that the United  States  has 
invoked its essential security interests under Article  XXI(b) of the GATT  1994 and to so report to the 
DSB.58 Effectively , this would mean that we would  not review the challenged measure at all, whethe r 
under the claims or under the security exception.59 Indeed, the United  States  argues that it would 
be "legally erroneous " to decide on the merits of the claims before assessing the invocation of 
Article  XXI(b).60 Furthermore, the United  States  puts forwa rd arguments under Articles 7.1 and 19 
of the DSU as to why we should not make any finding of inconsistency or any recommendation s.61  
7.18.   The United  States ' position is based on its understanding that Article  XXI(b) , by its terms,  is 
entirely self -judging. In its view, this means that it is the invoking Member alone that determines 
whether  an action is necessary for the protection of the Member's essential security interest in the 
relevant circumstances .62 Such action, therefore, c annot be found by a panel to be inconsistent with 
the covered agreements.63  
7.19.   Hong Kong, China disagrees that an invoking Member's action cannot be reviewed at all under 
Article  XXI(b). In line with the findings made by the panel in Russia – Traffic in Tran sit, it submits 
that the exception in Article  XXI(b) is only partly self -judging, and is, furthermore, subject to the 
invoking Member demonstrating that the measures at issue meet a minimum requirement of 
plausibility in relation to the proffered essential  security interests .64 There is, accordingly , in Hong 
Kong, China's view, some scope for review of a n invoking Member's action under Article  XXI(b). 
Therefore, a panel, as a matter of legally mandated order of analysis, should  engage in such review 
if and when it has found a breach (as with any other exception).65 Those third parties that 
commented on th is issue expressed positions similar to that espoused by Hong Kong, China.66  
 
57 Article  IX:1 of the GATT  1994 requires Members to accord to products from an y other Membe r, with 
regard to marking requirements, no less favourable treatment than that accorded to like products of any third 
country. Article  I:1 of the GATT  1994 requires  Members to accord immediately and unconditionally any 
advantage, favour, privi lege or immunity with respect to the subject matter provided therein granted to the 
products of any other Member to the like product originating in or destined for all other Members. Article  2.1 of 
the TBT  Agreement  requires Members to ensure that in respe ct of technical regulations, products imported 
from the territory of any Member accord treatment no less favourable than that accorded to like products of 
national origin and to like products originating in any other country.  Article  2(d) of the ARO  requir es that t he 
rules of origin that Members  apply to imports and exports  shall not discriminate between other Members .   
58 See para.  3.2 above.  
59 The United States more broadly argues that a Member may request that a panel review a non -
violation claim whether benefits have been nullified or impaired by the essential security m easure and, if so, to 
assess the level of that nullification or impairment under Article 26.1 of the DSU  (United States ' first written 
submission, para. 94; responses to Panel question No. 46, para. 216, and No. 65, paras. 272 -276). We note 
that no such no n-violation claims have been made in this case.  
60 United  States ' response to Panel question No.  1, para.  3. 
61 United  States ' response to Panel question No.  1, paras.  5-6. 
62 United  States ' first written submission, para s. 11 and 47. 
63 United  States ' first w ritten submission, para.  326; response to Panel question No.  1, para.  6. 
64 Hong Kong, China's opening statement at the first meeting of the Panel, para.  35. 
65 Hong Kong, China's response to Panel question No.  1, para s. 3-4. 
66 Brazil's third -party statement, para.  7; Canada's third -party submission, paras.  15-19; 
European  Union 's third -party statement, paras.  4-8; Norway's third -party statement, paras.  20-22; and 
Switzerland's third -party submission, paras.  49-51. WT/DS597/R  
 
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  7.20.   In considering these arguments, we note that each side's position on how to proceed rests on 
its understanding of the extent of the self -judging nature of Article  XXI(b), namely on whether this 
provision allows for any review by a panel. This is a central question, which fundamentally affects 
how we proceed . In our view, therefore, it seems appropriate to address it upfront. Furthermore, 
this is also the most efficient way to proceed. For , if we conclude that the United  States  is correct 
and we are not to review the challenged measure under Article  XXI(b), it may not be necessary to 
make any other findings , at least under Article  IX:1 of the GATT  1994, as these would not contribute 
to the positive resolution of the dispute.   
7.21.   We, therefore, turn to whether A rticle XXI(b) is self -judging such that it excludes any review 
by a panel.  
7.3  Whether Article  XXI(b) of the GATT  1994  is self -judging such that it excludes any 
review of the challenged measure by a panel  
7.3.1   Introduction  
7.22.   As indicated above, the parties' debate on whether there is any scope for review of a 
challenged measure by a panel when Article  XXI(b) is invoked is a debate about the scop e and extent 
of the self -judging nature of Article  XXI(b) . By the term "self -judging" both parties mean the same  
thing, nam ely that  the elements of Article  XXI(b) that they respectively consider to be self-judging, 
are governed by the invoking Member's own appreciation and judgment, i.e. its own determination 
as opposed to that of a panel.67 Furthermore, both parties agree tha t the source for the self -judging 
nature of  Article  XXI(b) is specific language in the provision which we discuss further below.  
7.23.   What the parties do not agree on is whether th e unilateral determination derived from this 
specific language  covers all or only part  of Article  XXI(b); in other words, whether all of the elements 
of Article  XXI(b) are self-judging. The parties further disagree whether those elements that are or 
may be  self-judging mean that a panel's review of those elements is excluded altogether or whether 
the invoking Member's unilateral determination is nevertheless reviewable in some limited way. 
These are two separate questions.  
7.24.   We begin with the first of the tw o questions, i.e. whether Article  XXI(b) is entirely self -judging 
or only partly self -judging . 
7.3.2   The interpretive question at issue  
7.25.   Article  XXI of the GATT  1994 is entitled "Security Exceptions ". Article  XXI(b) reads as follows:  
Nothing in this Agreement sha ll be construed  
(a) …  
(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, 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 emergency in int ernational relations; or 
(c) … 
 
67 United  States ' first written submission, para.  1; Hong Kong, China's response to Panel question 
No. 44, paras.  132 and 152. We note that the parties also sometimes refer to a Member's "discre tion", 
implying that is an equivalent term to "unilateral determination", see e.g. United  States ' first written 
submission, para.  117; Hong Kong, China's response to Panel question N o. 44, paras.  140 and 150. We agree 
but will mostly use the term "determin ation" throughout the Report.  WT/DS597/R  
 
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  7.26.   For ease of reference, we refer , as do the parties, to the first two lines of this provision 
(starting with "to prevent" and ending with "essential security interests") as the chapeau , and to the 
subsequent list (starting wit h (i), then (ii), and  ending with  (iii)) as the subparagraphs.  
7.27.   The parties do not disagree that the specific phrase "which it considers" is the source of the 
discussed self -judging nature of Article  XXI(b).68 That language clearly refers to the invoking 
Member's own appreciation and judgment, which cannot be replaced by that of a panel. As Hong 
Kong, China puts it : 
To give meaning to "which it considers", the words that it qualifies must be left to the 
determination of the invoking Member.69 
7.28.   The question, therefore, is not whether Article  XXI(b) provides for a unilateral determination 
by the invoking Member. It clearly does. The question is rather, what is covered by that 
determination ?70 That – and, again, the parties agree – depends on what the phrase "which it 
considers" extends to.71  
7.29.   In the United  States ' view, the phrase "which it considers" relates  to all that follows in the 
text, that is, the chapeau  and the subparagraphs. The subparagraphs, therefore, in the 
United States ' view, are circumstances  the invoking Member  "considers" present, and in this way 
serve as guidance for that Member's exercise of its rights  under the provision.72  
7.30.   In Hong Kong, China's view the phrase "which it considers"  does not extend  to the 
subparagraphs. For H ong Kong, China, therefore, the existence of an action of the type described in 
the subparagraphs is not self-judging but is instead for a panel to decide on the basis of an objective 
review.73 The third parties that commented on Article  XXI(b) share Hong Kong, China's view , which  
leads to the same interp retive result as the one reached by the  panel in Russia – Traffic in Transit .74   
7.31.   The interpretive question that we need to resolve, therefore, is whether the phrase "which it 
considers" in the chapeau of Article  XXI(b) extends to the subparagraphs following the chapeau . If 
it does, it is the invoking Member's unilateral determination t hat governs the application of the 
subparagraphs, and a panel may not replace this determination with its own. If it does not extend 
to the subparagraphs, the application of the subparagraphs is subject to a panel's review and 
Article  XXI(b) is not self -judging in its entirety , but only partly self -judging .   
7.32.   As mandated by Article  3.2 of the DSU, we are to resolve this interpretive question in 
accordance with the customary rules of interpretation of public international law. These are codified 
in Articles 31, 32 , and 33 of the Vienna  Convention  on the Law of Treaties (Vienna  Convention ). In 
particular, according to Article  31(1) of the Vienna  Convention : 
A treaty shall be interpreted in good faith in accordance with the ordinary meaning to 
be given to the t erms of the treaty in their context and in the light of its object and 
purpose.  
7.33.   We will therefore examin e the interpretive question at issue following the steps set out in 
Article  31(1) of the Vienna  Convention . In undertaking this process, we will also be mindful of the 
 
68 Hong Kong, China's response s to Panel question No.  44, para.  132, and No. 94, para.  96; 
United  States ' first written submission, para s. 34 and  37.   
69 Hong Kong, China's second written submission, para.  154. 
70 As noted above, w hether the exercise of that discretion is disciplined by certain obligations grounded 
in good faith  and, thus, subject to some review by a panel , as found by previous panel s (see Panel  Report s, 
Russia – Traffic in Transit,  para. 7.132 and Saudi Arabia – IPRs, paras.  7.242, 7.250 -7.252, and 7.283),  is a 
separate question , which we do not discuss at this juncture of our analysis, see paras.  7.23 and 7.24 above.  
71 United  States ' response to Panel question No.  94, para.  87; Hong Kong, China's response to Panel 
question No.  94, para.  96. 
72 United  States ' first written submission, para.  46; response to Panel question No.  46, para.  205. 
73 Hong Kong, China's response to Panel question No.  44, paras.  135 and 138.  
74 Brazil's third -party submission, paras.  4 and 17. Canada's third -party submission, paras.  23-24. 
China's third -party submission, paras.  15-16; third -party statement, para.  5. Euro pean Union 's third -party 
submission, paras.  23-26. Norway's third -party statement, paras.  6-14. Russia's third -party statement, 
paras.  2 and 6 -17. Singapore's third -party statement, paras.  15-17. Switzerland's third -party submission, 
paras. 3, 6 and 8 -35. Ukraine's third -party submission, paras.  6-8. WT/DS597/R  
 
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  interpretive analysis that the panel in Russia – Traffic in Transi t has carried out .75 That panel's 
findings play a central role in th e parties' submissions insofar as Hong Kong, China and the third 
parties base the ir position on them, and the United  States  has argued extensively that those 
findings , and reliance on them, are erroneous. We also note, however, that that panel  was faced 
with different legal and factual issues as well as different arguments.   
7.3.3   Ordinary meaning  
7.3.3.1   Introduction  
7.34.   We begin with the ordinary meaning of the text of Article  XXI(b). As noted above, what is at 
issue here is whether the phrase "which it considers" extend s to the subparagraphs in Article  XXI(b). 
We note that  the issue is not the ordinary meaning of these wo rds as such , which the United  States , 
uncontested by Hong Kong, China, describes as "[r]egard in a certain light or aspect; look upon as" 
or "think or take to be" .76 Instead, w hat is at issue is the grammatical structure of the sentence 
where the words are found . Neither the parties nor the third parties question  that the grammatical 
structure of a sentence is part of the ordinary meaning of the relevant treaty terms.77  
7.35.   In the following sections  we will (a) examine the grammatical structure of  the sentence in the 
English version of the provision, and (b) compare our findings to the other two authentic language 
versions of the provision (i.e. French and Spanish), before  (c) concluding on our analysis of the 
ordinary meaning .    
7.3.3.2   Grammatical struc ture  
7.3.3.2.1   Arguments of the parties and the third parties  
7.36.   The United  States  argues that Article  XXI(b) consists of a single relative clause  that follows 
the word "action", beginning with the phrase "which it considers" and extending to  each 
subparagraph. Thus, for the United  States , the phrase "which it considers" extends to the entire 
provision , and a ll elements of the text are left to the determination of the invoking Member . The 
three subparagraphs therefore describe the circumstances that the Member "conside rs" to be 
present.78  
7.37.   With respect to the term in the chapeau  that the subparagraphs modify, the United  States  
advocates the most natural reading of the English text to be that subparagraphs (i)  and (ii)  modify 
the term "interests".79 This is because subparagraphs (i)  and (ii)  both begin with the phrase "relating 
to", and directly follow the term "interests" in the chapeau . The United  States , in this regard, refers 
to a rule in English grammar under which a participial phrase that functions as an adjective normally 
follows the word it modifies or is otherwise placed as closely as possible to the word it modifies.80  
7.38.   As regards s ubparagraph  (iii), the United  States  shares Hong Kong, China's and the third 
parties' view that in the English text it modifies the term "action" in the chapeau rather than 
 
75 Panel  Report , Russia – Traffic in Transit , paras.  7.59-7.104.  
76 United  States ' first written submission, para.  37 (referring to The New Shorter Oxford English 
Dictionary , 4th edn, L. Brown (ed.) (Clarendon Press, 1993), at 485 ( Exhibit USA -11)). The United  States  also 
points out that the use of the subjunctive in the Spanish (" estime "), and the use of the future in the French 
("estimera "), reflects the beliefs of the WTO Member, rather than an ass ertion of objective fact that could be 
subject to debate (United  States ' first written submission, para.  38). We do not understand Hong Kong, China  
to (and do not see a reason ourselves to ) contest this  statement , as it merely confirms and clarifies the se lf-
judging nature of the phrase "which it considers" but does not indicate whether that language extends to the 
subparagraphs.  
77 The grammatical construction of a given provision also played a role in prior dispute settlement cases, 
see Appellate  Body Report, US – Softwood Lumber  V (Article  21.5 – Canada) , para.  89; and Panel  Report s, EC 
and certain member States  – Large Civil Aircraft , para.  7.218 ; Australia – Tobacco Plain Packaging , 
para. 7.1892 ; and China  – Auto Parts, paras.  7.163 -7.164.   
78 United  States ' first written submission, paras.  34-46; responses to Panel question No.  46, paras.  205 
and 210 , No. 48, para.  225, and No.  63, paras.  258 and 266; and second written submission, para.  18. 
79 United  States ' first written submission, para.  43. 
80 United  States ' response to Panel question No.  63, para.  262 ( quoting  Merriam Webster's Guide to 
Punctuation and Style  232 (1st edn 1995) , (Exhibit USA -194), and The Harper's English Grammar  186-187 
(Harper & Row, 1966) , (Exhibit USA -195)).  WT/DS597/R  
 
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  "essential security interests". This is because "interests" cannot be "taken ".81 The United  States  
describes subparagra ph (iii) as a "temporal limitation related to the action taken" and points out 
that "[i]n this case, the drafters departed from typical English usage in placing the modifier next to 
'its essential security interests' as opposed to action".82 In response to  arguments that all 
subparagraphs must therefore modify the term "action", t he United  States  argues that 
English  grammar permits the subparagraphs in a list to modify different terms of a chapeau , as the 
subparagraphs are not connected by a conjunction to suggest cumulative or alternative situations.83  
7.39.   In Hong Kong, China's  view the subparagraphs are not covered by the relative clause  starting 
with "which it considers", but instead directly refer to the word "action".84 The subparagraphs, 
therefore, form a "noun phrase" that Hong Kong, China describes as typically beginning with a noun 
(here "action") followed by additional words that modify the noun.85 
7.40.   Hong Kong, China also notes that the term "action" is placed before  the phrase "which it 
considers". For Hong Kong, China, therefore, the identification of the type or types of GATT -
inconsistent action comes before  the relative clause that allows the invoking Member to determine 
whether that action is necessary  for the protection of its essential security interests.  Hong Kong, 
China submits that , accordingly, the existence of  an action of  the type described in the enumerated 
paragraphs is  not self -judging and that, instead, it is for a panel to decide on the basis of an objective 
review.86 
7.41.   Among the third parties , Norway, Russia , and Switzerland  comment specifically on the 
grammatical structure of the sentence. All three take the view that  the subparagraphs relate to the 
word "action" and are, therefore, not covered by the phrase "which it considers".87 Switzerland 
describes the subparagraphs as "coordinated participial clauses" that directly relate to and modify 
the noun "action" in the chapeau .88 In Switzerland's view, therefore, Article  XXI(b) presents a case 
of "double modification" of the noun "action", namely by the relative clause  in the chapeau , on the 
one hand, and by the coordinate construction in the subparagraphs, on the other hand.89  
7.3.3.2.2   Panel's assessment  
7.42.   As stated above, the interpretive question that we need to resolve is whether the phrase 
"which it considers" in the chapeau of Article  XXI(b) extends to the subparagraphs following the 
chapeau . Both the parties and certai n third parties agree that this  phrase starts a relative clause  
that qualifies the noun "action". For the United  States , that relative clause  ends at the end of each 
subparagraph. For Hong Kong, China and the third parties  that expressed a view on this iss ue, it 
ends in the chapeau and what follows in the subparagraphs is a separate element that independently  
qualif ies the noun "action".  
7.43.   It may be helpful to illustrate the difference in the parties' positions.  
7.44.   The United  States ' view regarding the structu re of Article  XXI(b) can be illustrated as follows:  
 
81 United  States' first written submission, para.  45. 
82 United  States ' second written submission, para.  26. 
83 United  States ' second written submission, paras.  24-26. 
84 Hong Kong, China's response to Panel question No.  44, paras.  135-138.  
85 Hong Kong, China's response to Panel question No.  44, para.  145. 
86 Hong Kong, China's response to Panel question No.  44, para.  138. 
87 Norway's third -party statement, paras.  10-12; Russia's third -party statement, para.  14; and 
Switzerland's third -party sub mission, para s. 10-13. 
88 Switzerland's third -party submission, para.  12. 
89 Switzerland's third -party submission, para.  13.  WT/DS597/R  
 
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7.45.   Hong Kong, China's and the third parties' position can be illustrated as follows:  
 
7.46.   As is clear from the  above  illustrations, these are two very different structures. In the 
structure proposed by the United  States , the phrase "which it considers" belong s in the same  
structural element , that is, in the same relative clause , as the subparagraphs. In the structure 
proposed by Hong Kong, China and the third parties, it does not. Instead, the subparagraphs form 
their own structural element, separate from the re lative clause  and directly relating to the word 
"action".  
7.47.   We, therefore , turn to examining  these different structures from a grammatical point of view 
to establish whether the relative clause  in the chapeau ends there or continues into the 
subparagraphs , such that both the chapeau  and the subparagraphs together constitute a single 
relative clause. 
7.3.3.2.2.1   Whether the chapeau  together with  each subparagraph constitute a single 
relative clause  
7.48.   Starting with the United  States ' reading, we begin by observing that it seems more accurate 
to speak of three single relative clauses  rather than one. This is becau se in the United  States ' 
reading, as indicated in the  first illustration above, the relative clause  beginning with "which it 
considers" extends to each of the three subparagraphs independently, in the following manner:  
a. which it considers necessary for the protection of its essential security interests "relating 
to fissionable materials or the materials from which they are derived ";  
b. which it considers necessary for the protection of its essential security interests "relating 
to the traffic in arms, ammuniti on 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 "; and  
c. which it consider s necessary for its essential security interests "taken in time of war or 
other emergency in international relations ". 
 
 
 
 
 
action  
which it consider s 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 material as is carried on directly or indirectly 
for the purpose or supplying a military establishment;  
 
(iii) taken in time of war or other emergency in international relations;  
which it considers necessary for the protection of its essential security interests  
 
 
 
 
 
 
action  
(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 material as is carried on directly or indirectly for the 
purpose or supplying a military establishment ; 
 
(iii) taken in time of war or other emergency in international relations ; WT/DS597/R  
 
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  7.49.   Reading the three clauses  individually, the word "relating" in subparagraphs (i)  and (ii), which 
is the present participle of the verb "to relate", could be read as qualifying the noun "interests" . 
When read in this way the relative clause  in the chapeau starting with "which it considers" could be 
read as continuing into the two subpar agraphs (i)  and (ii).  
7.50.   In contrast, as the United  States  itself submits  regarding the English text , the word "taken" , 
which is the past participle of the verb "to take", must relate to "action" as "interests" cannot be 
taken.90 It seems clear to us, t herefore, that there is no continuation from the relative clause  in the 
chapeau into subparagraph (iii)  and that "taken" does not relate to any part of that clause . Indeed, 
clause  (c) above only makes sense under the U nited States ' interpretive approach if the word "taken" 
is omitted altogether.91 Thus, while the construct of "single relative clause " works for the first two 
subparagraphs, it does not for the third one. This casts some doubt on the suggested construct for 
the provision as a whole.  
7.51.   Turning to Hon g Kong, China's and the third parties' reading of the structure, under that 
reading the relative clause  qualifying the word "action" starts with "which it considers" and ends at 
the end of the chapeau (essential security interests). The clause  is complete in that it has a subject 
(it), a verb (considers) and a complement (necessary for the protection of its essential security 
interests).  
7.52.   In respect of this reading, t he United  States  argues that there is no additional language after 
the words " essential security interests" in the chapeau  to indicate that the relative clause  ends, and 
that a new structural element begins. F or the United  States , this is proof that the relative clause  
continues in the subparagraphs.92  
7.53.   We are not persuaded that the re needs to be a ddition al language to  indicat e that the relative 
clause  ends and something new start s. Visually, there is a break insofar as the chapeau is distinct 
from the subparagraphs, which are set out in an enumerated list below the chapeau . The list , thus, 
is something different and the reader needs to link it back to the chapeau , whichever reading is 
followed. Under this reading the link is to the word "action" whereas under the United  States ' reading 
the link is to the relative clause . Additional l anguage could possibly have made it clear wh ich of these 
two links was intended .93 However, for the purposes of our interpretation, what matters is whether 
the meaning advocated by Hong Kong, China and the third parties depends  on additional language 
such that it cannot be discerned from the text without that language. In our view, n otwithstanding 
the potential for addi tional clarity, the existing structure of Article  XXI(b) is sufficiently clear in 
signa lling a b reak between the chapeau and the subparagraphs.  
7.54.   Accordingly, w e next turn to the subparagraphs and examine whether, as argued by Hong 
Kong, China and the third parties, they relate to the word "action" instead of to the relative clause  
in the chapeau . As noted above, this is uncontested as regards the word "taken" in 
subparagraph  (iii). All parties, including the United  States, agree that "taken" qualifies the no un 
"action". As for the word "relating" in subparagraphs  (i) and (ii), as noted above, it is a present 
participle of the verb "to relate" which is used as an adjective. As such, it could be accorded both to 
the word "action" and to the word "interests" in "essential security interests".  
7.55.   The United  States  considers that it is the latter because the word "relating" immediately 
follows the noun "interests". In support of this view, t he United  States  refers to a rule in English 
 
90 United  States ' first written submission, para.  45; response to Panel question No.  63, para.  264. 
91 See also the United  States ' own  paraphrasing of sentence (c) in United  States ' response to Panel 
question No.  46, para.  210 ((c) "when a Member takes action it considers necessary for its essential security 
interests in time of war or other emergency in international relations").  
92 United States ' response to Panel question no. 63, para. 260; second written submission, para.  27; 
comments on Hong Kong, China's response to Panel question No.  99, para.  73. The United States submits  that 
the reading by Hong Kong, China and certain third parties, reads into Article XXI(b) the clause s "and which 
relates to" before subparagraphs (i) and (ii), and "and which is taken in  time of" before subparagraph (iii).  
93 As noted in fn. 92, the United  States  discusses "and which relates to" for subparagraphs (i)  and 
(ii) and "which is taken in time of" for subparagraph (iii) . We note that this would turn the subparagraphs into 
additional relative clauses  that would be connected to the relative clause  in the chapeau through the connector 
"and". An alternative to such additional language as proposed by the drafters of the ITO Charter  in 1948 is 
discuss ed below.   WT/DS597/R  
 
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  grammar under which a participia l phrase that functions as an adjective, normally follows the word 
it modifies or is otherwise placed as closely as possible to the word it modifies.94  
7.56.   We note that t he rule is not absolute ("normally") which means that departing from it does 
not result in grammatical error. Indeed, as the United  States  itself observes and accepts, the drafters 
of Article  XXI(b) chose to depart from this rule as regards subparagraph (iii), since the word "taken" 
there unquestionably relates to the word "action" in the chapeau .95 It is, therefore, conceivable that 
the drafters could also have chosen to depart from it as regards subparagraphs (i)  and (ii).  
7.57.   Summing up on the question of whether the chapeau  together with  each subparagraph 
constitute a single relative clause , we are not persuaded by  the construct of a "single relative clause " 
argued by the United  States  because it does not work for the third subparagraph. In contrast, t he 
reading that the relative clause  ends in the chapeau  is, in our view , grammatically  sound and also 
consistent with the provision separat ing out, structurally and visually, the chapeau  from the 
subparagraphs .  
7.58.   Under th e latter reading  (favoured by Hong Kong, China and third parties who have expressed 
views on this aspect) , the structural analysis ends here, as it would be clear that the phrase "which 
it considers" does not belong in the same structural element as the subparagraphs and,  therefore, 
cannot exten d to them. In contrast, u nder the former reading  (favoured by the United  States ), if 
one were to accept it,  the existence of a single relative clause  is not enough to link the phrase "which 
it considers" to the subparagraphs. Whethe r this is the case, depends on what the phrase "which it 
considers" relates to in the text of the supposed single relative clause .96  
7.59.   We, therefore, turn to examining what the phrase "which it considers" relates to.   
7.3.3.2.2.2   What the phrase "which it considers" r elates to    
7.60.   The verb "consider" is used transitively, that is,  it requires a direct object.97 The word 
immediately following the verb "considers" is the adjective "necessary". These two words ("considers 
necessary"), thus, belong together. This is unconte sted and both sides agree that what the invoking 
Member considers "necessary" is subject to unilateral determination.98   
7.61.   However, t his does not mean that th e subparagraphs are also covered by this specific use of 
"considers" , i.e. in combination with "nec essary" . Indeed, t he subparagraphs are not about what 
action the Member considers necessary, but about whether that action pertains to specific 
circumstances. From the United  States ' point of view, it is reserved to the invoking Member to 
consider  that this is the case:  
[A]n invocation of Article  XXI(b) would reflect that a Member considers two elements to 
exist with respect to its action. First, the action is one "which it considers necessary for 
the protection of its essential security interests ". Second, the action is one "which it 
considers " relates to the subject matters in subparagraph endings (i)  or (ii)  or "taken 
 
94 United  States ' response to Panel question No.  63, para.  262 ( quoting  Merriam Webster's Guide to 
Punctuation and Style  232 (1st edn 1995) , (Exhibit US A-194) and The Harper's English Grammar  186-187 
(Harper & Row, 1966) , (Exh ibit US A-195)).  
95 United  States ' second written submission, para.  26. 
96 The United  States  agrees that whether Article  XXI(b) is self -judging in full or in part depends on what 
the words "which it considers" relate to in the text of the provision, see United  States ' response to Panel 
question No.  94, para.  87. In the United States ' view,  the phrase "which it considers " "qualifies " all of the 
elements in the relative clause, including the subparagraph ending, see also paras.  7.29 and 7.36.  
97 See Merriam Webster Dictionary online, definition of "transitive" https://www.merriam -
webster.com/dictionary/transitive  (accessed 29 September  2022). See also United  States ' response to Panel 
question No.  97, para.  106, fn  71 (where the United  States  observes that the "verb 'consider' in English is a 
complex -transitive verb that may take either a predicate complement or an infinitive complement" (referring to 
The Cambridge Grammar of the English Language , R. Huddleston and G. Pullum, eds. (Cambridge U niversity 
Press 2002) , (Exhibit US A-224))).   
98 The word "necessary" in turn is immediately followed by the preposition "for" which creates a link to 
what follows, namely the word "protection"; "protection", for its part, is linked through the word "of" to  the 
terms "its essential security interest". We leave o pen, at this juncture of our analysis, what these linkages 
entail in terms of the self -judging nature of the chapeau . This question is a further interpretive issue that 
becomes relevant if and when we  carry out a review under Article  XXI(b).  WT/DS597/R  
 
- 31 - 
 
  in time of war or other emergency in international relations " as set forth in subparagraph 
ending (iii).99  
7.62.   In our view, therefore, t he question is whether, the phrase "which it considers" does indeed 
serve twice: in the chapeau and in the subparagraphs.100 This could be illustrated in the following 
way: 
 
7.63.   In considering this structure, we initially observe that there is no word "and" to link the first 
part of the supposed single relative clause  containing the word "consider s" (used with "necessary") 
to the second part, in which the same verb allegedly serves again (used with "relating to" or "taken"). 
The word "and" could serve as a coordinator.101 The United  States  submits that in English a 
coordinator may be implied between grammatical units of equivalent status.102 The United  States , 
furthermore, contends that adding a coordinator would arguably change the meaning of the clause. 
As the United  States  explains, to revise the sentence with a coordi nator would suggest that the 
language in the subparagraphs is not part of the relative clause  in the chapeau .103 The United  States , 
furthermore, points out that placing the word "and" at the end of the chapeau  would mean that 
subparagraphs (i)  and (ii)  would modify the word "action", not "interests" contrary to the US 
reading.104  
7.64.   In our view, the United  States  is correct in pointing out  that the use of the word "and", in and 
of itself, would not lead to a reading under which two supposed uses of the verb "co nsider" are 
connected. Instead, it would link back to the word "action" and would, thus, be contrary to the 
reading that two of the subparagraphs do not link back to that word. Therefore, not only is there no 
coordinator here to connect the two supposed us es of the verb "consider", but also, to read such 
additional language into the text, would not provide the meaning  intended by the United  States .    
7.65.   The second observation is that "consider s" would have to accord with the words that start the 
respective su bparagraphs. In both subparagraphs (i)  and (ii)  this is the word "relating". The phrase 
"which it considers relating" arguably would require the addition of "to be" ("…  considers to be  
relating") to read correctly. More importantly, however, it is not a construction that the 
United  States ' reading of the clause allows. This is because, in the United  States ' reading, those 
words are not meant to belong together. Instead, as the United  States explains, the word "relating" 
 
99 United  States ' second written submission, para.  48; response to Panel question No.  96, para.  100. 
100 Hong Kong, China describes this as doing  "double duty"; see Hong Kong, China's comments on the 
United  States ' response to Panel question No.  94, para.  61. 
101 A coordinator is defined as "a coordinating conjunction", see Oxford English Dictionary online , 
definition of "co -ordinator":  https://www.oed.com/view/Entry/41068?redirectedFrom=coordinator#eid  
(accessed 29 September 2022 ).  
102 United  States ' response to Panel question No.  96, para.  101, fn  68 (referring to The Oxford English 
Grammar , Oxford University Press, S. Greenbaum ed. (1996) , (Exhibit US A-223)). We note that in the example 
provided in the exhibit, the grammatical units are separated by a comma.  
103 United  States ' response to Panel question No.  96, para.  102. 
104 United  States ' response to Panel question No.  96, para.  103. 
 
 
 
 
 
 
 
action whic h it 
considers  
necessary  for the protection of its essential security interests (i)  relating  
to fissionable materials or the materials from which they are derived;  
 
necessary  for the protection of its essential security interests (ii)  relating  
to the traffic in arms, ammunition and implements of war and to such 
traffic in other goods and material as is carried on directly or indirectly 
for the purpose or supplying a military e stablishment;  
 
necessary  for the protection of its essential security interests (iii)  taken  
in time of war or other emergency in international relations;  
 WT/DS597/R  
 
- 32 - 
 
  modifies the phrase "essential security interests" and therefore directly links to this phrase.105 To 
link "consider s" to "relating", therefore, is not possible following the United  States ' readin g.  
7.66.   Turning to subparagrap h (iii), the phrase "which it considers taken" may be less problematic 
than "considers relating", although, once again, the use of "to be" would seem more natural 
("considers to be taken") .106 Still, even accepting the United  States ' argument that the words  "to 
be" may be implied here107, a further problem is how to link the word "taken" to the word "consider s" 
("considers taken") rather than directly to the word "action" ("action taken"). The parties and third  
parties, including the United  States , agree that  "taken" relates to "action". There is, however, a 
difference as to whether it does so via the word "consider s" or directly. As discussed above, only in 
the former case ("considers taken") is it for the Member to determine whether the action is taken in 
time of war or other emergency in international relations. Therefore, for it to be clear that "taken" 
relates to "consider s" ("considers taken") rather than only to "action" ("action taken"), the words 
"and to be" would seem to be required . Thus, additional language would be required to link 
"consider s" to "taken ".   
7.67.   Based on the above, we consider that any attempt to read the supposed single relative clause  
in such a way that the verb "consider" serves both the word "necessary" in the chapeau and the 
respective subparagraphs, cannot be accepted as reflecting a proper ordinary meaning of the terms 
at issue.  Such a reading would require addi tional  language that is not included in the text. 
Furthermore, such a reading cannot be achieved without co ntradicting the United  States ' own 
reading of the construction of subparagraphs  (i) and (ii)  as directly relating to essential security 
interests .  
7.68.   Thus,  it would seem that even if Article  XXI(b) is read as containing one single relative clause  
that starts  with "which it considers" and ends at the end of each of the three subparagraphs, this 
reading does not lead to the result argued by the United  States : it does not extend the phrase "which 
it considers" to what is in the subparagraphs.  
7.69.   Our preliminary conclusion, therefore, is that we see no basis in the text for a  reading under 
which there is a single relative clause  and the phrase "which it considers " governs the subparagraphs  
as well as the chapeau . In contrast, the reading under whic h the relative clause  ends in the chapeau 
and the subparagraphs directly relate to the word "action" is grammatically sound.  Under that latter 
reading , the word "action" is, thus, doubly qualified, namely by the relative clause  containing the 
phrase "which it considers", on the one hand, and by the subparagraphs, on the other hand.       
7.3.3.3   Comparison of the three authentic language versions  
7.70.   Our analysis, up to this point, has focused on the English version of the provision. The par ties 
have also submitted arguments on the structure of the text in the other two, equally authentic, 
language versions, i.e. the French and Spanish versions.108 As noted above, neither the parties nor 
the third parties question that the grammatical structur e of a sentence is part of the ordinary 
meaning of the relevant treaty terms. We, therefore, now turn to examin ing the grammatical 
 
105 See para.  7.37 above . One may argue that there is nevertheless some link to the word "consider" in 
that "relating" links to "essential security interests", which in turn links to "protection of", which in turn links to 
"necessary for". However, this (somewhat indirect) link i s to the first use of the verb "consider" (namely 
"consider necessary") – or, as the United  States  would say, the "first element" of consideration. As noted 
above, this first use makes the necessity  of the action subject to unilateral determination, but no t the question 
whether that action relates to fissionable materials or traffic in arms, see para.   7.61 above .  
106 We note that this is also how the  United  States  uses it when arguing that "it is the Member that 
considers the action to be 'taken in time of war or other international emergencies'", see United  States ' 
response to Panel question No.  96, para.  97. (emphasis added)  
107 United  States ' respons e to Panel question No.  97, para.  106, fn  71 (referring to The Cambridge 
Grammar of the English Language , R. Huddleston and G. Pullum, eds. (Cambridge University Press 2002) , 
(Exhibit US A – 224)). 
108 We note that Article  33(1) of the Vienna  Convention  provides:  
When a treaty has been authenticated in two or more languages, the text is equally authoritative 
in each language, unless the treaty provides or the parties agree that, in case of divergence, a 
particular text shall prevail.  
Pursuant  to Paragraph 2(c)(i)  of the GATT  1994, the text of the GATT  1994 shall be authentic in English, 
French , and Spanish.  WT/DS597/R  
 
- 33 - 
 
  structure in those language versions under either of the proposed readings , which we have examined 
above .    
7.71.   For ease of refe rence, we set out the three language versions of Article  XXI(b) next to each 
other in the following table:  
Article  XXI:  
Security Exceptions  
 
 
Nothing in this Agreement shall 
be construed  
 
 
[…] Article  XXI:  
Exceptions concernant la 
sécurité  
 
Aucune disposition du 
présent Accord ne sera 
interprétée  
 
 
[…] Artículo XXI:  
Excepciones relativas a la 
seguridad  
 
No deberá interpretarse 
ninguna disposición del 
presente Acuerdo en el sentido 
de que  
 
[…] 
(b) to prevent any Member 
from taking any action which it 
considers necessary for the 
protection of its essential 
security interests  b) ou comme empêchant un 
Membre de prendre toutes 
mesures qu'elle estimera 
nécessaires à la protection 
des intérêts essentiels de sa 
sécurité:  b) impida a un Miembro la 
adopción de todas las medidas 
que estime necesarias para la 
protección de los intereses 
esenciales de su seguridad, 
relativas:  
(i) relating to fissionable 
materials or the materials 
from which they are derived;   i) se rapportant aux 
matières fissiles ou aux 
matières qui servent à leur 
fabrication;  i) a las materias fisionables o 
a aquellas que sirvan para su 
fabricación;  
(ii) relating to the traffic in 
arms, ammunition and 
implements of war and to 
such traffic in other goods 
and materials as is carried o n 
directly or indirectly for the 
purpose of supplying a 
military establishment;  ii) se rapportant au trafic 
d'armes, de munitions et 
de matériel de guerre et à 
tout commerce d'autres 
articles et matériel 
destinés directement ou 
indirectement à assurer 
l'approvisionnement des 
forces armées;  ii) al tráfico de armas, 
municiones y material de 
guerra, y a todo comercio de 
otros artículos y material 
destinados directa o 
indirectamente a asegurar el 
abastecimiento de las fuerzas 
armadas;  
(iii) taken in time of wa r or 
other emergency in 
international relations; or  iii) appliquées en temps de 
guerre ou en cas de grave 
tension internationale;  iii) a las aplicadas en tiempos 
de guerra o en caso de grave 
tensión internacional; o        
7.3.3.3.1   Arguments  of the parties and the third parties  
7.72.   The United  States  points to divergences between the English and French text s, on the one 
hand, and the Spanish text, on the other, regarding  the use of the terms "relating", " se rapportant " 
(French)  and " relativas " (Spanish) . The United  States  submits that these differences do not permit 
a coherent reading of Article  XXI in the Spanish version and must therefore be understood in the 
context of the English and French version s to produce the best understandi ng of these texts.109 The 
United  States , furthermore, suggests that some of the differences may be translation errors as they 
do not align with the Spanish text as written in Article  XIVbis(1)(b)(iii) of the General Agreement on 
Trade in Services (GATS ) and Article  73(b)(iii) of the Agreement on Trade -Related Aspects of 
Intellectual Property Rights (TRIPS  Agreement ), which it argues are more consistent with the English 
and French versions. The Panel should, therefore, understand  the ordinary meaning of Artic le XXI(b) 
as written in those two agreements (serving as immediate context)  instead of the GATT  1994 
itself.110 
7.73.   As for  the use of  the feminine plural " relativas " in the Spanish version, which on account of 
its gender cannot accord with  the masculine plural noun " intereses " as in " intereses esenciales de 
 
109 United  States ' first written submission, para.  168. 
110 United  States ' first written submission, para s. 176-177. WT/DS597/R  
 
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  su seguridad " ("essential security interests"; " intérêts essentiels de sa s écurité "), the United  States  
refers to the need to reconcile the different language versions pursuant to Articl e 33(4) of the 
Vienna  Convention . The United  States  considers that the most appropriate way to reconcile the 
textual differences between the texts is to interpret Article  XXI(b) such that all three subparagraph 
endings refer back to "any action which it co nsiders".111  
7.74.   In Hong Kong, China's  view the United  States  has no basis to imply that there is a mistake in 
the authentic Spanish text of Article  XXI(b)  of the GATT  1994.112 Furthermore, Hong Kong, China 
submits that the alternative interpretation the United  States  proposes to reconcile the three 
authentic texts is necessitated only by its own flawed interpretation whereas Hong Kong, China's 
interpretation gives harmonious effect to all three texts.113 Hong Kong, China also contends that the 
proposed alternati ve interpretation is inconsistent with the United  States ' own interpretation.114   
7.75.   Among the third parties  Canada, the European  Union , Russia, and Switzerland commented 
specifically on the potential differences in the three language versions. Like Hong Kong , China they 
submit in essence that the Spanish version supports the reading that the word "action" relates to all 
three subparagraphs and is therefore separate from the relative clause  in the chapeau.115  
7.3.3.3.2   Panel's assessment  
7.76.   The parties' arguments primarily concern the United  States ' reading  of Article  XXI(b) . We, 
therefore,  first address the specific arguments made by the United  States  in support of its own 
reading to see whether this changes our preliminary conclusion  above  that this reading has n o basis 
in the text.   
7.77.   We recall that the United  States ' reading of the English text, as discussed above, revealed 
two problems: (a) that subparagraph (iii)  cannot be construed as pertaining to one single relative 
clause  starting at "which it considers", si nce the word "taken" unquestionably refers to the word 
"action" in the chapeau , which is outside the relative clause ; and (b) that, the word "considers" only 
relates to "necessary"116 and cannot be construed to also relate to the subparagraphs.  
7.78.   With this in  mind, we turn to the French version first. While it is correct, as the United  States  
suggests, that one could read the introductory words of subparagraphs (i)  and (ii)  (se rapportant ) 
as relating to " intérêts de sécurité essentiels ", these terms are separ ated by a colon, which is placed 
at the end of the chapeau . This clear break in the sentence, which does not exist in the English 
version, constitutes an additional challenge to the construct of a single relative clause . In addition, 
as with the English ve rsion, the word " appliquées " unquestionably accords with the word " mesures " 
in the chapeau and is, therefore, outside the relative clause .  
7.79.   Furthermore , as in the English version, the verb " estimer " only relates to " nécessaires " and 
cannot be construed as also relating to the subparagraphs. First , this is because  there is no  
coordinator to link the two supposed uses of the verb " estimer ", and as seen above, there is even a 
colon at the end of the chapeau , which marks a break.  
7.80.   Second, regarding  the subparagraphs, it  would seem that  it is not  possible for the verb 
"estimer " to be directly followed by " se rapportant ".117 In any event, this would break the link 
between " intérêts " and " se rapportant " contrary to the United  States ' reading. Finally, a s regards 
 
111 United  States ' first wr itten submission, para.  186. 
112 Hong Kong, China's response to Panel question No.  62, para.  245. 
113 Hong Kong, China's response to Panel question No.  62, paras.  248-249. 
114 Hong Kong, China's response to Panel question No.  62, para.  248. 
115 Canada's third -party response to Panel question No.  45, paras.  126-128; European  Union 's third -
party response to Panel question No.  45, paras.  132-142; Russia's third -party response to Panel question 
No. 45, p. 11 -13; and Switzerland's third -party response to Panel question No. 45, paras.  36-42. 
116 As noted in fn  98 above w e leave o pen at this juncture of our analysis what the linkages between the 
words following the word "necessary " entail in terms of the self -judging nature of the chapeau . This questio n is 
a further interpretive issue that becomes relevant if and when we carry out a review under Article  XXI(b).  
117 The verb " estimer " must be followed either by an " adjectif attribut " or by and " infinitive ou 
subordonnée ", see Petit Robert  Dictionary onlin e, definition of " estimer ":  
https://dictionnaire.lerobert.com/definition/estimer  (accessed 29 September  2022) . Thus, the correct use 
would seem to be " estimera … qu'elles se rapportent ".  WT/DS597/R  
 
- 35 - 
 
  the phrase " estimer appliquées ", even assuming that it is possible as a construct118, as with the 
English version, additional language would be needed to make clear that " appliquées " refers back to 
"estimer " rather than directly to the word " mesur es" in the chapeau .119  
7.81.   Turning, next, to the Spanish version, we find that it is not possible based on any of the 
subparagraphs to construe the provision as consisting of a single relative clause . Even if we were to 
accept the United  States ' suggestion to read the text as set out in Article  XIVbis(1)(b)(iii) of the 
GATS and Article  73(b)(iii) of the TRIPS  Agreement120 rather than as in Article  XXI(b) itself121, the 
Spanish text is unequivocal that all three subparagraphs relate to the word " medidas " in the 
chapeau . That word, as in the other language versions, is placed before the relative clause  and, 
therefore, does not link to the word " estime ".122  
7.82.   As noted above, the United  States  suggests that the "idiosyncrasies" in the Spanish text can 
be reco nciled with the English and French version s by reading all three subparagraph endings as 
referring back to "any action which it considers".123 We do not see, however,  how the United  States ' 
suggested reading reconciles the supposed differences between the S panish version and the English 
and French versions a s these differences seem to remain.124 In any event , it does not solve the 
problem of connecting the subparagraphs to the verb "consider" rather than directly to the noun 
"action" in any of the three languages. Furthermore, with specific regard to the Spanish version, in 
all three subparagraphs the phrase " estime relativas " reads incorrect ly, based on Spanish grammar 
rules125, is separated by punctuation even in the GATS and the TRIPS  Agreement  version s,126 and 
would require additional language , either in the version of the GATT  1994 or that of the GATS and 
the TRIPS  Agreement , to make clear that " relativas " or "aplicadas " relates to "considers" ("estime ") 
rather than directly to " medidas ".127       
 
118 "estimera …  qu'elles s'appliquent  … ". 
119 "estimera nécessaires …et d'être  appliquées en temps de guerre  …". 
120 The chapeau in Article  XIVbis(1)(b) of the GATS and Article  73(b) of the TRIPS  Agreement  in their 
respective authentic text in Spanish reads " impida a un Miembro la adopción de las medidas que estime 
necesarias para la protección de los intereses esenciales de su seguridad: ", and subparagraph (iii) reads 
"aplicadas en tiempos de guerra o en c aso de grave tensión internacional; ". 
121 We do not agree with the United  States  to the extent that it argues that the inclusion of a comma 
and " relativas " in the chapeau "may be a translation error" (United  States ' first written submission, para.  172). 
The GATT  1994 was clear in indicating the authentic version of its text in Spanish. Paragraph 2(c)(iii) of the 
GATT  1994 provides that "the authentic text of GATT  1994 in the Spanish language shall be the text in Volume 
IV of the Basic Instruments and Selected  Documents series, subject to the rectifications of terms indicated in 
Annex  B to document MTN.TNC/41". As Hong Kong, China points out, the drafting history of the Spanish text 
of Article  XXI(b)(iii), including the agreed rectifications in document MTN.TNC /41, clarifies that the drafters had 
several opportunities to correct "errors" in the text. (Hong Kong, China's response to Panel question No.  62, 
paras.  242-246). Moreover, the United  States  invites us to consider the Spanish text of Article  XIVbis(1)(b) of 
the GATS and Article  73(b) of the TRIPS  Agreement as "immediate context" for understanding the ordinary 
meaning of the Spanish text of Article  XXI(b) of the GATT  1994. What the United  States  in essence requests us 
to do is to ignore the authentic Spanis h text of Article  XXI(b) and to replace it with the authentic Spanish text 
of other provisions (Article  XIVbis(1)(b)(iii) of the GATS and Article  73 of the TRIPS  Agreement ). This would go 
against the prescription in Article  33(1), referred to above, that the authentic texts of a treaty are equally 
authoritative in each language insofar as it suggests that the authentic Spanish text of the GATT  1994 is not 
authoritative.    
122 In addition, as in the French version, the chapeau  ends with a colon thus clea rly marking a break, 
whether in the GATT  1994 or in the GATS/TRIPS version. Furthermore, in the GATT  1994 version a comma 
separates the word " relativas " in the chapeau  from the preceding relative clause .  
123 United  States ' first written submission, para.  186. 
124 We do not understand the United  States  to change its view that subparagraphs (i)  and (ii)  continue 
to relate to "security interest s".  
125 The construction " estime … relativas a " is not correct given that "estimar " is a verb of judg ment. 
According to th e Real Academia Española de la Lengua, " el verbo estimar  se construye con mayor frecuencia 
con adjetivos de naturaleza modal (conveniente , improcedente , necesario , oportuno )" (Real Academia 
Española  y Asociación de Academias de la Lengua Española, Nueva gramática de la lengua española  (2009)   
§38.7k) . The adjective "relativo " does not express qualities or properties, it is an adjective of relationship that 
in Article  XXI(b) modifies the noun "medidas ". As the adjective "relativas " therefore  cannot follow the verb 
"estime ", the correct use  to convey a link between "medidas " and "relativas " would seem to be " estime  … que 
sean relativas ".   
126 As noted above, we do not agree with the United  States  that the authentic Spanish version of the 
GATT  1994 suffers from translation errors . See fn  121 above.  
127 "estime  necesarias … y que sean a plicadas en tiempos de guerra o en caso de grave tensión 
internacional".  WT/DS597/R  
 
- 36 - 
 
  7.83.   In sum, in our view  the United  States ' reading of Article  XXI(b) in the other two authe ntic 
versions presents even greater problems than its reading of  that provision in  the English version.  
7.84.   We turn to testing Hong Kong, China's and the third parties' reading of the French and Spanish 
version s of the text. As noted above, following this rea ding of the structure of Article  XXI(b) the 
word "action" in the chapeau  would be doubly qualified: (i)  by the relative clause  starting with "which 
it considers" in the chapeau and ending at the end of the same; and (ii)  by the subparagraphs 
individually a cting as "noun phrases". In the English version of the text, our analysis of this structure 
did not reveal any grammatical issues.    
7.85.   Beginning with the French text, we note that it is possible to read the relative clause  in the 
chapeau as ending at the en d of the chapeau . Indeed, the colon at the end of the chapeau indicating 
a break, supports that reading. Furthermore, while the words " se rapportant " in subparagraphs 
(i) and (ii)  could be read as relating to " intérêts essentiels de sécurité ", they can als o be read as 
directly relating to the word " mesures ". With subparagraph (iii)  unquestionably doing so, it is 
possible to read all three subparagraphs as relating to the  word "mesures " and, therefore, qualifying 
this word independently from the relative clause  in the chapeau . 
7.86.   As for the Spanish version, as noted above, all three subparagraphs unquestionably relate to 
the word " medidas ". To read them as qualifying that word independentl y from the relative clause  in 
the chapeau , therefore, makes sense, both in Article  XXI(b) itself, and in the (slightly differently 
worded) Article  XIVbis(1)(b)(iii) of the GATS and Article  73(b)(iii) of the TRIPS  Agreement . 
Additionally, the placement of " relativas " in the chapeau of Article  XXI(b), its separation through a 
comma from the preceding text , and the colon following it, all reinforce this reading.  
7.87.   Thus, we find that both the French and the Spanish version s, following this reading, align with 
the reading of the English text and the need to reconcile differing interpretations does not arise.    
7.3.3.4   Conclusion on ordinary meaning  
7.88.   Having examined the structure of the text of Article  XXI(b) in all three authentic languages, 
we have discerned a clear meani ng, namely that the phrase "which it considers" does not extend to 
the subparagraphs.128 This is the case even if one were to accept the structure advocated by the 
United  States , namely that the subparagraphs are the continuation of a single relative clause  that 
starts in the chapeau . Even under this proposed  structure  (which, as noted above, does not work 
for the third of the three subparagraphs ), nothing connects what is in those subparagraphs to the 
verb "consider". That verb th us does not do "double duty ", but instead only relates to the adjective 
"necessary" in the chapeau . Therefore, in our assessment the United  States ' reading is not supported 
by the text .129  
7.89.   The grammatical structure of Article  XXI(b)  as discerned from the text , thus, suggests  that 
what is in the subparagraphs is not subject to the invoking Member's own determination  but is 
instead subject to objective determination by a panel . The role of the subparagraphs, thus, would 
be to circumscr ibe (and limit)  the circumstances in which the invoking Member may take  action 
which it considers necessary for the protection of its essential security interests.      
7.90.   Our finding that the United  States ' reading is not supported by the  text has important 
implications for the next steps in our interpretive analysis . As the text of Article  XXI(b) does not 
 
128 We note that our analysis of the ordinary meaning of Article  XXI(b)(iii) differs in some respects from 
the approach taken by the panel  in Russia – Traffic in Transit (Panel  Report , Russia – Traffic in Transit , 
paras.  7.63-7.66), due perhaps to our more detailed focus on the text and structure of the provision (see a lso 
fn 130 below on the text -based approach to interpretation in the Vienna  Convention ).  
129 We note that our conclusion that the United  States ' reading is not supported by the text of 
Article  XXI(b) does not rest on whether such reading, as argued by Hong Kong, China, would render the 
subparagraphs ineffective. Rather, it is based, as explained above, on our understanding of the grammatical 
structur e of the provision. We do not therefore need to address the question, extensively discussed among the 
parties and third parties, whether the United  States ' reading would be contrary to the effectiveness principle 
(see United  States ' responses to Panel ques tion No.  46, paras.  205-216, and No.  47, paras.  217-223; second 
written submission, paras.  49-57; Hong Kong, China's responses to Panel question No.  46, paras.  153-159, 
and No.  47, paras.  160-162). We also note that the panel in Russia – Traffic in Transit questioned the effet 
utile of the subparagraphs if the determination of the circumstances therein were left exclusively to the 
discretion of the invoking Member, see Panel  Report , Russia – Traffic in Transit , para.  7.65.  WT/DS597/R  
 
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  allow for such an interpretation, there is no need to test that reading against the context and the 
object and purpose of the treaty.  Comporting with the ru les of treaty interpretation, neither the 
context nor the object and purpose of a treaty can validate  an interpretation that is not supported 
by the ordinary meaning of the treaty terms  and override another interpretation that does result 
from those treaty  terms.130 In terms of next steps, therefore, the focus of our analysis will be on the 
reading that we have found to have a basis in the text , namely, the one submitted by Hong Kong, 
China and the third parties . It is this reading that we test against conte xt and object and purpose of 
the treaty.    
7.3.4   Context  
7.3.4.1   Introduction  
7.91.    Article  31(1) of the Vienna  Convention  states that  "a treaty shall be interpreted … in 
accordance with the ordinary meaning to be given to the terms of the treaty in their context  … ."  
The International Law Commission ( ILC) in its Commentary  explaining the role of context in 
interpretation, referred to t he following statement from the International Court of Justice (ICJ):  
If the relevant words in their natural and ordinary meaning make sense in their context, 
that is an end of the matter.131   
7.92.   We are, thus, called upon to consider whether the meaning that we have discerned "makes 
sense" in the context of other relevant provisions in the GATT  1994 and elsewhere in the covered 
agreements.  
7.93.   The parties have submitted arguments regarding an extensive number of provisions that 
serve as context for the interpreta tion of Article  XXI(b). Below we discuss these in four separate 
sections, namely, (i)  the immediate context in the remaining paragraphs of Article  XXI; 
(ii) Article  XX; (iii) various provisions in different agreements that vest judgment in the Member or 
in another entity; and (iv)  other provisions under the DSU.  
7.3.4.2   Immediate context in the remaining paragraphs of Article  XXI      
7.94.   The parties first refer to the immediate context in Article  XXI itself. For ease of reference, we 
set out the relevant paragraphs of  Article  XXI: 
Nothing in this Agreement shall be construed  
 
130 This is a direct consequence of the text -based approach to interpretation adopted in the 
Vienna  Convention, which confines the interpreter to what is contained, expressly or by implication, in the text. 
The ILC describes it in the following way:  
[Article  31 of the Vienna  Convention ] … is based on the view that the text must be presumed to 
be the authentic expression of the intentions of the parties; and that, in consequence, the 
starting point of interpretation is the elucidation of the meaning of the text, no t an investigation 
ab initio  into the intentions of the parties. The Institute of International Law adopted this —the 
textual —approach to treaty interpretation. The objections to giving too large a place to the 
intentions of the parties as an independent ba sis of interpretation find expression in the 
proceedings of the Institute. The textual approach, on the other hand, commends itself by the 
fact that, as one authority has put it, " le texte sign é est, sauf de rares exceptions, la seule et la 
plus r écente ex pression de la volont é commune des parties ". Moreover, the jurisprudence of the 
International Court contains many pronouncements from which it is permissible to conclude that 
the textual approach to treaty interpretation is regarded by it as established la w. In particular, 
the Court has more than once stressed that it is not the function of interpretation to revise 
treaties or to read into them what they do not, expressly or by implication, contain.  (Yearbook of 
the International Law Commission, 1966, vol. II, p. 220, para.  (11) (fns omitted, emphasis 
original) ).  
 
The ILC also refers to the "primacy of the text as the basis for the interpretation" .  
(Ibid. p. 218, para.  (2)). 
131 Yearbook of the International Law Commission, 1966, vol. II, p. 221, para . (12) (referring to ICJ, 
Advisory Opinion, Competence of the General Assembly for the Admission of a State to the United Nations, 
(1950) ICJ Reports, p. 8 ). WT/DS597/R  
 
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  (a)  to require any Member to furnish any information the disclosure of which it 
considers contrary to its essential security interests; or  
(b) …; or 
(c)  to prevent any Member  from taking any action in pursuance of its obligations under 
the United Nations Charter for the maintenance of international peace and security . 
7.3.4.2.1   Arguments  of the parties and the third parties  
7.95.   According to  the United  States , Article  XXI(a) anticipates that there may not be facts on the 
record before a panel that could be used to "test" a Member's invocation of Article  XXI(b). The 
United  States  considers that at least in some instances a Member exercising its rights under 
Article  XXI(a), and thus withholding information the disclosure of which it considers to be contrary 
to its essential security interests, may thereby not be able to demonstrate that its measure meets 
whatever standards the panel is appl ying. According to the United  States , a panel must therefore 
avoid any interpretation of Article  XXI(b) that could undermine or even invalidate the effectiveness 
of Article  XXI(a).132  
7.96.   Furthermore, the United  States  points to the absence of the phrase "which it considers" in 
Article  XXI(c). The United States  submits that the selective use of the phrase highlights that, under 
Article s XXI(a) and XXI(b) it is the judgment of the Member that controls. In its view, the Panel 
should recognize and give meaning to such deliberate use of the phrase and no t reduce these words 
to "inutility".133 
7.97.   Hong Kong, China  rejects the relevance of Article  XXI(a) as context. Hong Kong, China notes 
that the United  States  has not invoked Article  XXI(a) in this case. Furthermore, Hong Kong, China 
submits that it finds it di fficult to imagine circumstances in which a Member could not disclose 
sufficient facts to establish the prima facie  applicability of each subparagraph, in cases where a 
subparagraph is, in fact , applicable. Accordingly, Hong Kong, China does not see a conf lict between 
Article s XXI(a) and XXI(b).134   
7.98.   As regards the absence of the phrase "which it considers" in Article  XXI(c), Hong Kong, China 
argues that this means that Article  XXI(c) is objectively reviewable in its entirety. Hong Kong, China 
contrasts this with Article  XXI(b), which, as it acknowledges, commits to the discretion of the 
invoking Member the determination of whether an action is necessary for the protection of essential 
security interests.135 Hong Kong, China, therefore, considers  that this interpretation gives meaning 
and effect to the phrase "which it considers" without depriving all other elements of Article  XXI(b) 
of meaning.136        
7.99.   Among the third parties  Canada , the European  Union , Norway, Russia , and Switzerland 
comment on  the immediate context of Article  XXI(a) and/or Article  XXI(c)  taking positions similar to 
that of Hong Kong, China.137 
7.3.4.2.2   Panel's assessment  
7.100.   We address the arguments regarding Article  XXI(a) and Article  XXI(c) separately.  
 
132 United  States ' first written submission, paras.  50-51; second written submission, paras.  63-65. 
133 United  States ' first written submission, para.  52. 
134 Hong Kong, China's response to Panel question No.  50, para s. 164-167. 
135 As noted above, in Hong Kong, China's view, the invoking Member's exercise of discretion is subject 
to the invoking Member demonstr ating that the measures at issue meet a minimum requirement of plausibility 
in relation to the proffered essential security interests , see para.  7.19 above.  
136 Hong Kong, China's response to Panel question No.  51, paras.  168-169. 
137 Canada's third -party response s to Panel question No.  33, paras.  88-89, No. 34, para.  90, and No.  35, 
para. 32; European  Union 's third -party response s to Panel question No.  33, paras.  95-97, and No.  34, 
para. 98; Norway's third -party response to Panel question No.  33, paras.  5-6; Russia's third -party response s to 
Panel question No.  33, p. 3 , and No.  34, pp. 3-4; and  Switzerland's third -party response to  Panel question 
No. 33, paras.  11-14.  WT/DS597/R  
 
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  7.101.   Regarding Article  XXI(a), we underst and the United  States ' argument to essentially aim at 
excluding Hong Kong, China's and the third parties' reading of Article  XXI(b) (which is the reading 
we have adopted so far ) on the grounds that it deprives Article  XXI(a) of its meaning and effect .   
7.102.   To interpret the subparagraphs as not being covered by the phrase "which it considers" , in 
our view,  does not deprive Article  XXI(a) of its meaning and effect. First and foremost , there are 
general and potentially far -reaching transparency/publication obligations in the GATT  1994, such as 
those in Article  X, and Article  XXI(a) appears to be  essentially  directed at such obligations . Second, 
assuming that Article  XXI(a) has any relevance on the disclosure of information i n WTO dispute 
settlement proceedings , including those  relating to situations of war or other emergenc ies in 
international relations, its existence does not imply that the determination of those situations  must 
be self -judging . It implies at most that, if a  case ever came up where the party invoking 
Article XXI(b) could not disclose any information relating to the existence of such situations  because 
it would be contrary to its  essential security interests , then it could potentially invoke Article  XXI(a) 
as an explanation not to provide certain sensitive information to a panel . In other words, there is no 
need to give meaning  and effect  to Article  XXI(a) by holding that subparagraph (iii) is entirely self-
judging.  
7.103.   Indeed, t he very existence of Article  XXI(a), to us, suggests that the reading  under which 
the subparagraphs are subject to review by a panel, is the correct reading. This is so because 
Article  XXI(a) is premised on a scenario in which a Member could actually be requested to provide 
informatio n. That scenario does not exist under the United  States ' reading of Article  XXI(b) since the 
mere invocation of that provision would exclude any review or inquiry and a Member could not be 
required to provide any information whatsoever.138 Thus, under the U nited States ' reading of 
Article  XXI(b), Article  XXI(a) would not have any meaning and effect, whereas under the reading 
adopted here , it would. In other words , it is this reading that gives both Article s XXI(b) and XXI(a) 
meaning and effect.  
7.104.   Turning to Ar ticle XXI(c), we agree with the United  States  that the absence of the phrase 
"which it considers" in this provision is relevant context to the presence of the same language in 
Article  XXI(b). However, the parties do not disagree  that the phrase "which it c onsiders" must be 
given meaning and effect. Both the United  States ' reading, and the reading adopted by us give it 
such meaning and effect, albeit  to a different extent. In our view, therefore, this argument does not 
say anything about whether the phrase " which it considers" relate s to the subparagraphs of 
Article  XXI(b).       
7.3.4.3   Article  XX of the GATT  1994  
7.105.   The parties also discuss Article  XX of the GATT  1994 as relevant context. For ease of 
reference, we set out below an abbreviated version of this provision : 
Subject to the requirement that such measures are not applied in a manner which would 
constitute a means of arbitrary or unjustifiable discrimination between countries where 
the same conditions prevail, or a disguised restriction on international trade, nothing in 
this Agreement shall be construed to prevent the adoption or enforcement by any 
Member  of measures:  
(a) necessary to protect public morals;  
(b) necessary  to … 
 
138 See also Switzerland's third -party response to Panel question No.  33, paras . 12-13 where 
Switzerland argues that  Article  XXI(a) does not establish  that a Member cannot provide  information regarding 
its essential security measures or interests . Rather, they argue that this provision notes that a Member does 
not need to provide information "the disclosure of which" it considers contrary to its essential security 
interests. In this respect the provision therefore ack nowledges that there might be situations in which a 
Member does not have to disclose certain information, but not that a Member may decline to provide any 
information whatsoever related to its essential security measures or the underlying security interest s. On the 
contrary, a Member acting under Article  XXI(a) would be required to explain why the disclosure of certain 
information is contrary to its essential security interests.   WT/DS597/R  
 
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  (c) relating to  … 
… 
(j) … 
7.3.4.3.1   Arguments  of the parties and the third parties  
7.106.   The United  States  contrasts the structure of Article  XX with that of Article  XXI(b) to contend 
that it would make no sense for a panel examining an Article  XXI(b) defence to proceed in the same 
manner as it would when examining Article  XX, namely to first determine applicability of the 
subparagraphs. Thus, according to  the United  States , the Appellate  Body's finding that the structure 
and logic of Article  XX suggests a two -step analysis139, is not applicable  under A rticle XXI(b) .140    
7.107.   Hong Kong, China  acknowledges that there are textual differences between Article  XX and 
Article  XXI(b) but submits that the similarities between the two provisions render the jurisprudence 
interpreting the term "relating to" in Article  XX as well as the jurisprudence interpreting the structure 
of Article  XX more generally, relevant to the interpretation of Article  XXI(b).141  
7.108.   Among the third parties  Brazil, Canada, the European  Union , Norway, Russia , and 
Switzerland comment specifically o n Article  XX.142 In their comments they mostly highlight the 
similarities in terms of structure between Articles XX and XXI(b) and, similarly to Hong Kong, China, 
contend that interpretive approaches to Article  XX should be adopted in Article  XXI(b) to the extent 
of those similarities.   
7.3.4.3.2   Panel's assessment  
7.109.   Article  XX is a relevant contextual pro vision insofar as it is, like Article  XXI, an exception. As 
it also immediately preced es Article  XXI(b), a comparison between the two exceptions seems 
appropriate . 
7.110.   The debate between the parties is fundamentally about similarities and differences between 
the text and structure of Article  XX on the one hand, and the text and structure of  Article  XXI(b), on 
the other. Any such similarities and differences, however, are relevant only insofar as they impact 
on the specific interpretive question  examined here .  
7.111.   As we see it, Article  XX and Article  XXI(b) each have their own structure and logic. Notably, 
Article  XX does not include the phrase "which it considers" in qualifying the type of action that a 
Member could take to pursue certain policy objectives. In turn, Article  XXI(b) does not include a 
limitation  requiring that a  measure not be applied in a manner that  constitutes arbitrary or 
unjustifi able discrimination or a disguised restriction on international trade.  In our view, therefore, 
for the specific purpose of resolving the interpretive question at issue here, a comparison between 
Article  XXI(b) and  Article  XX is not helpful.143 What the phrase "which it considers" extends to in 
Article  XXI(b), cannot be resolved by comparison to a provision that does not contain that phrase.    
 
139 United  States ' first written submission, para.  56 (referring to Appellate  Body Report, US – Shrimp , 
para. 119).  
140 United  States ' first written submission, para.  57. 
141 Hong Kong, China's response to Panel question No.  52, paras.  170-173. 
142 Brazil's third -party response to Panel question No.  36, paras.  59-63. Canada's third -party response 
to Panel question No.  36, para.  93. European  Union 's third -party submission, para. 25, Third Party Written 
Submission by the European  Union  in United  State s – Certain Measures on Steel and Aluminium Products 
(DS544)  (European  Union 's third -party submission in DS544),  (Exhibit EU -5), para.  54; and third -party 
response to Panel question No.  36, paras.  103-104. Norway's third -party response to Panel question No . 59, 
para. 37. Russia's third -party response to Panel question No.  36, p. 4 ; third-party statement, para.  15. 
Switzerland's third -party submission, paras.  28-31; third -party response to Panel question No.  36, 
paras.  16-17. 
143 We note that Article  XX may provide contextual guidance for other interpretive questions referred to 
by the parties and the third parties, such as whether a panel is to review the subpa ragraphs in Article  XXI(b) 
first, or whether the word "relating" has t he same meaning in the two exceptions. Such questions, however, 
only become relevant if and when a review under Article  XXI(b) is due. We, therefore, do not address them at 
this stage of the analysis.  WT/DS597/R  
 
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  7.112.   As noted above, the contextual analysis serves to see whether the reading derived from the 
text makes sense when read with other provisions. In this regard, we consider that our reading 
according to which the phrase "which it considers" in Article  XXI(b) does not exten d to the 
subparagraphs does "make sense" when read in the con text of Article  XX. To have subparagraphs 
in Article  XXI(b) that qualify action taken under that provision does not contradict Article  XX which 
qualifies measures or action taken under that exception in a very different way.   
7.3.4.4   Provisions that vest judgment in the Member or in another entity  
7.113.   The parties furthermore discuss as relevant context various provisions across the covered 
agreements that vest judgment in a Member or in another entity.    
7.3.4.4.1   Arguments  of the parties and the third parties  
7.114.   The United  States  likens Article  XXI(b) to other provisions elsewhere in the covered 
agreements that also refer to action that a Member "considers" appropriate or necessary thus 
signalling that a particular judgment resides with that Member. More specifically, it li sts the 
following: Article  18.7 of the Agreement  on Agriculture , Article  III(5) of the GATS , and Article  3.7 of 
the DSU. The United  States  refers to  other provisions , which it describes as leaving certain 
judgments for the determination by a panel, the App ellate  Body or a WTO Committee. The 
United  States  provides the following examples : Article  12.9 of the DSU and Article  4(1) of the ARO . 
Lastly, the United  States  refers to the following provisions as vesting particular consideration with a 
WTO Member, a panel, the Appellate  Body or another entity: Article  XXIII:1 of the GATT  1994, the 
sixth recital , and Articles 10.8.3 and 14.4 of the TBT  Agreement , Articles 3.3 , 4.11, 13.1 , and 17.5 
of the DSU, Article  4(2) of the ARO , Article  3(8) of the Agreement on Trade Facilitation (TFA) , 
Articles  XIV bis and XXIV(1) of the GATS, and Article  III(I) of the Agreement on Government 
Procurement as amended in 2012  (GPA 2012 ).144   
7.115.   Furthermore, the United  States  contrast s Article  XXI(b) with Articles 22.3, 26.1 , and 26.2 of 
the DSU as examples of provisions where the judgment  or discretion of a Member is circumscribed 
by additional language. The absence of such language in Article  XXI(b), according to the 
United  States , demonstrates that Members did not agree to subject a Member's essential security 
judgments to review by a WTO panel.145  
7.116.   Hong Kong, China  comments on the U nited States ' arguments regarding Articles 3.7, 
22.3(b ), 22.3(c), and 26.1 of the DSU as examples of provisions that have a similar structure to 
Article  XXI(b) and that grant some discretion to the invoking Member subject to certain obligations 
or specifications for adjudicatory review.146 More generally , Hong Kong, China makes the point that 
none of these provisions provide s for an entirely self -judging standard that may not be second -
guessed  by a panel.147  
7.117.   Among the third parties  Canada, the European  Union , and Russia comment in particular on 
Articles 22.3, 2 6.1, and 26.2 of the DSU rejecting the United  States ' argument in line with 
Hong Kong, China's arguments above.148   
7.3.4.4.2   Panel's assessment  
7.118.   All the provisions referred to by the United  States  (and commented on by Hong Kong, China 
and the third parties) are rele vant context insofar as they demonstrate that across the covered 
agreements there exist provisions that specifically identify where the guiding judgment or 
appreciation  resides  in a given situation.  
 
144 United  States ' first written submission, para s. 58-60. 
145 United  States ' first written submission, paras.  62-64.  
146 Hong Kong, China's response to Panel question No.  54, paras.  182-188; second written submission, 
paras.  167-168. 
147 Hong Kong, China's second written submission, para.  168. 
148 Canada's third -party response to Panel question No.  37, para.  94; European  Union 's third -party 
response to Panel question No.  37, paras.  105-114; and Russia's third-party response to Panel question 
No. 37, pp.  4-5. WT/DS597/R  
 
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  7.119.   Furthermore, some of these provisions specifically provide  that it is the Member's judgment 
and appreciation that is guiding. These provisions can, therefore, be directly compared to 
Article  XXI(b) where, and to the extent that, this is also the case in th at provision. The question 
here, however, is not how the Member's judgment and appreciation under Article  XXI(b) are 
disciplined, but whether they extend to all of Article  XXI(b), i.e. also to the subparagraphs of the 
provision  in addition to the chapeau .  
7.120.   For that specific question, the provisions the United  States  referred to offer little or no 
contextual guidance . Most of them structurally do not resemble Article  XXI(b) in that the question 
whether the Member's judgment and appreciation may or may not ex tend to parts of the provision 
does not arise.149  
7.121.   The only provisions that present a more elaborate structure and, like Article  XXI(b), feature 
a chapeau and subparagraphs, are Articles 22.3(b), 22.3(c), 26.1 , and 26.2 of the DSU, which the 
parties have al so discussed in some detail. We, therefore, examine these to assess their contextual 
relevance to the interpretive question at issue.  
7.122.   Article  22.3(b) and (c) read as follows:  
3. In considering what concessions or other obligations to suspend, the complain ing 
party shall apply the following principles and procedures:  
… 
(b) if that party considers that it is not practicable or effective to suspend concessions 
or other obligations with respect to the same sector(s), it may seek to suspend 
concessions or other  obligations in other sectors under the same agreement;  
(c) if that party considers that it is not practicable or effective to suspend concessions 
or other obligations with respect to other sectors under the same agreement, and that 
the circumstances are serious enough, it may seek to suspend concessions or other 
obligations under another covered agreement;  
7.123.   Subparagraphs (b) and (c) use the phrase "if that party considers that it is not practicable 
or effective" to suspend concessions in a particular manne r. This phrase suggests that it is the 
Member's judgment controlling the assessment of whether it is "practicable or effective" to suspend 
concessions or other obligations. The chapeau  also states, however, that the complaining party "shall 
apply the follo wing principles and procedures", meaning that the complaining party must show 
factually that it weighed the considerations in the subparagraphs when  deciding whether to suspend 
concessions  or other obligations . The language in the chapeau , therefore,  places a limit on the 
discretion exercised by the complaining party.150  
7.124.   The above shows that Article  22.3 of the DSU refers to a Member's judgment, while at the 
same time disciplining the exercise of that judgment through additional language ("shall apply the 
following"). The contextual relevance of this provision, according to  the United  States , is that 
Article  XXI(b) does not feature such additional language. Absent such additional language, the 
United  States  submits that the phrase "which it considers" is therefore  self-judging.151 Hong Kong, 
China argues that the subparagraphs in Article  XXI(b), similarly to the chapeau  in Article  22.3, serve 
 
149 This is true, for example, for Article  3.7 of the DSU which the parties discuss at some length.  
150 The conclusion above is consistent with that reached by the Arbitrator in EC – Bananas III (Ecuador) 
(Article  22.6 – EC). There, the Arbitrator noted that th e phrase "if that party considers" leaves "a certain 
margin of appreciation to the complaining party in arriving at its conclusions in respect of an evaluation of 
certain factual elements". The Arbitrator considered that the words "the complaining party sh all apply the 
following principles and procedures" would allow arbitrators "to broadly judge whether the complaining party 
has considered the necessary facts objectively and whether, on the basis of these facts, it could plausibly arrive 
at the conclusion that it was not practicable or effective" to seek suspension in the manner prescribed under 
the provision, see Decision by the Arbitrator, EC – Bananas III (Ecuador) (Article  22.6 – EC), para.  52. 
151 United  States ' first written submission, para.  62.  WT/DS597/R  
 
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  to limit the discretion of the invoking Member by specifying the circumstances in  which the exception 
may apply.152   
7.125.   In our view, Article  22.3 of the DSU, while demonstrating that the exercise of a Member's 
judgment may be disciplined through additional language, is of limited contextual relevance to the 
interpretive question at issue.  This is because the specific limitation  in that provision and the 
language used to provide for it are too dissimilar  from that which  we are called upon to examine in 
the chapeau and subparagraphs of Article  XXI(b). Because it is so di ssimilar , the languag e in 
Article  22.3 of the DSU neither proves nor disproves the reading that the phrase "which it considers" 
in the chapeau of Article  XXI(b) does not extend to the subparagraphs.  
7.126.   Turning to Article  26.1 of the DSU, this provision in relevant part, reads as follows:  
Where and to the extent that such party considers and a panel or the Appellate  Body 
determines that  a case concerns a measure that does not conflict with the provisions of 
a covered agreement to which the provisions of paragraph 1(b) of A rticle XXIII of 
GATT  1994 are applicable, the procedures in this Understanding shall apply, subject to 
the following : 
(a) the complaining party shall present a detailed justification in support of any 
complaint relating to a measure which does not conflict  with the relevant covered 
agreement;  
(b) where a measure has been found to nullify and impair benefits … 153 
7.127.   As with Articles 22.3(b) and (c), this provision comprises  a chapeau  and enumerated 
subparagraphs. It also includes  both subjective and objective e lements. Its chapeau  uses the 
language "where … such party considers and a panel or the Appellate Body determines", referring 
partly to the judgment of an invoking Member and subjecting it to review. The enumerated 
subparagraphs also clearly set out the circumstances that limit the discretion of the invoking Member 
through the words "subject to the following".  
7.128.   Furthermore, Article  26.2 of the DSU, in relevant part, states as follows:  
[A] panel may only make rulings and recommendations where a party considers that 
any benefit accruing to it directly or indirectly under the relevant covered agreement is 
being nullified or impaired …. Where and to the extent that such party considers and a 
panel determines that the matter is covered by this paragraph , the procedures of this 
Understanding shall apply only up to and including the point in the proceedings where 
the panel report has been circulated to the Members. … The following shall also apply : 
(a) the complaining party shall present a detailed justification in support of any 
argument made with respect to issues covered under this paragraph …154 
7.129.   Similarly to Article  26.1, this provision subjects the judgment of the invoking Member to 
review by a  panel (" such party considers and a panel determines that ").  
7.130.   The United  States , as with Article  22.3, notes the qualifying language and submits that it is 
the absence of similar qualifying language in Article  XXI(b) that demonstrates that Members did not 
agree to subject a Member's essential security judgments to review by a WTO panel.155 For Hong 
Kong, China these provisions are similar to Article  XXI(b) in that they are not entirely self -judging.156     
7.131.   In our view, as with Article  22.3 of the DSU, Article s 26.1 and 26.2 are of limited contextual 
relevance to the interpretive question at issue. While it is correct that Article  XXI(b) does not feature 
the same additional language as Article  26, it has its own additional language, namely the 
subparagraphs, which serve a similar function of restricting a Member's judgment . Again, the specific 
 
152 Hong Kong, China's response to Panel question No.  54, para.  187. 
153 Emphasis added.  
154 Emphasis added.  
155 United  States ' first written submission, para.  64. 
156 Hong Kong, China's response to Panel question No.  54, para.  188. WT/DS597/R  
 
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  restriction in Article  26 and the language used to provide for it, are too dissimilar  from Article  XXI(b)  
to provide any guidance for the interpretive issue here. Because it is so different, that language 
neither proves nor disproves the reading that the phrase "which it considers" in the chapeau does 
not extend to the subparagraphs.  
7.132.   We conclude, therefore, that the provisions referred to by the parties are of limited relev ance 
to the interpretive issue at hand.  
7.3.4.5   Other provisions under the DSU  
7.133.   The last category of provisions that the parties discuss as context to Article  XXI(b) are 
certain provisions of the DSU, other than those examined above.  
7.3.4.5.1   Arguments  of the parties and the third parties  
7.134.   Certain third parties , namely Brazil, China, the European  Union , Switzerland , and Ukraine, 
refer to several provisions under the DSU  to contend that it would run counter to the objectives of 
dispute settlement or would prevent panels from fulfilling their mandate  to read Article  XXI(b) as 
entirely self-judging .157 The provisions in question are the following: Articles 3.2, 3.3, 7.1, 7.2, 11, 
23.1, and 23.2 (a) of the DSU . 
7.135.   In response the United  States  submits that the self -judging nature of Article  XXI(b) is 
established by the text of the provision and that nothing in the DSU calls for ignoring the plain 
language of Article  XXI(b) or indicates that every ter m of every WTO provision must be subject to 
panel review.158  
7.3.4.5.2   Panel's assessment  
7.136.   The question that this contextual argument raises is whether the United  States ' reading of 
Article  XXI(b) runs counter to the above -referenced DSU provisions. As we explained a bove, we 
found that the United  States ' reading is not supported by the text of Article  XXI(b). In our view, 
therefore, the question of whether such a reading also runs counter to the DSU provisions in question 
can be left open. What matters is whether the correct reading of the provision that we have discerned 
above based on the ordinary meaning of the text interpreted in accordance with Article  31(1) of the 
Vienna  Convention  runs counter to those DSU provisions. In the absence of any argumentation to 
the contrary,  we do not see any reason to consider that it does.  
7.3.5   Object and purpose  
7.137.   We now turn to testing the reading that we have discerned against the object and purpose 
of the GATT  1994 and the WTO  Agreement  more generally . We recall that pursuant to Article  31(1) 
of the Vienna  Convention , "a treaty shall be interpreted …  in accordance with the ordinary meaning 
to be given to the terms of the treaty in their context and in the light of its object and purpose ".159 
The role of an "object and purpose " analysis, thus,  is somewhat similar to that of the "context " 
analysis , insofar as the ordinary meaning discerned is tested against the treaty as a whole .160 We 
agree that  "the treaty's 'object and purpose' is to be referred to in determining the meaning of the 
'terms of the treaty' and not as an independent basis for interpretation."161 
 
157 Brazil's third -party submission, par a. 7 (concerning Article  7.2 of the DSU) ; China's third -party 
submission, para.  16 (concerning Article  3.2 of the DSU) ; European  Union 's third -party submission in DS544 , 
(Exhibit EU -5), paras.  39-45 (concerning Articles 3.2, 7.1, 7.2, 11, and 23 of the DSU) ; Switzerland's third -
party submission, paras.  40-48 (concerning Articles 3.3, 11, 23.1, and 23.2(a) of the DSU) ; Ukraine's third -
party submission, paras.  7-8 (concerning Articles 3.2, 3.3, 7.2, an d 11 of the DSU).  
158 United  States ' response to Panel question No.  53, paras.  231-239.  
159 Emphasis added.  
160 See Yearbook of the International Law Commission, 1966, vol. II, p. 221, para (12):  "[T]he ordinary 
meaning of a term is not to be determined in th e abstract but in the context of the treaty and in the light of its 
object and purpose." Also, ibid. reference to Permanent Court of International Justice's Advisory Opinion on the 
Competence of the ILO to Regulate Agricultural Labour : "it is obvious that the Treaty must be read as a whole, 
and that its meaning is not to be determined merely upon particular phrases which, if detached from the 
context, may be interpreted in more than one sense" .  
161 Appellate  Body Report, Japan – Alcoholic Beverages  II, DSR 1996:1, p.106, fn 20. WT/DS597/R  
 
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  7.3.5.1   Arguments  of the parties and the third parties  
7.138.   The United  States  considers that the object and purpose of the GATT  1994 establishes that 
Article  XXI(b) is self -judging. It points to the preamble of the GATT  1994 which provides for 
"reciprocal and mutually advantageous arrangements directed to the substantial reduction of tariffs 
and other barriers to trade ". The United  States  infers from this langu age that M embers  
acknowledged that the GATT contained both obligations and exceptions, including the essential 
security exceptions in  Article  XXI, and specifically contemplated that Members will make use of the 
exceptions, consistent with their text .162  
7.139.   The United  States  also submits that the security and predictability of the multilateral trading 
system would not be well -served under Hong Kong, China's reading because it would lead to panels 
evaluating security issues and recommending that Members withdraw  or modify their essential 
security measures.163 
7.140.   Hong Kong, China  conten ds that several aspects of the object and purpose of the GATT  1994 
support a reading that Article  XXI(b) is not entirely self -judging. In this regard, Hong Kong, China 
refers to stateme nts by the panel report in Russia – Traffic in Transit  and submits that security and 
predictability would be undermined if Article  XXI(b) were read to be entirely self-judging.164 
7.141.   Among the third parties , Brazil , Canada , the European  Union , Russia , Switzerl and, and 
Ukraine similarly to Hong Kong, China, reject the US reading as contrary to the object and purpose 
and consider that security and predictability would be undermined if Article  XXI(b) were considered 
to be entirely self -judging.165  
7.3.5.2   Panel's assessment  
7.142.   The parties discuss two aspects as forming part of the object and purpose of the GATT  1994, 
and more generally, the covered agreements. These are, on the one hand, the "mutually 
advantageous arrangements", referred to in the preamble of the GATT  1994166, which describe the 
balance struck between the various rights and obligations; and, on the other hand, the security and 
predictability of the multilateral trading system specifically referred to in Article  3.2 of the DSU.167 
We understand the partie s to agree that both these aspects have a rightful place in the description 
of the object and purpose of the GATT  1994 and of the covered agreements in general.  
7.143.   The reading that we test against this object and purpose, which is the only reading that is 
supported by  the text, is that the phrase "which it considers" in the chapeau of Article  XXI(b) does 
not extend to the subparagraphs of the provision.  
 
162 United  States ' first written submission, paras.  65-67. 
163 United  States ' opening statement at the first meeting of the Panel, para.  68; closing statement at the 
first meeting of the Panel, para.  11; and second written submission,  paras. 80 and  209. 
164 Hong Kong, China's response to Panel question No.  55, paras.  189-192. 
165 Brazil's third -party response to Panel question No.  38, paras.  64-67. Canada's third -party response 
to Panel question No.  38, paras.  95-98. European  Union 's third -party response to Panel question No.  38, 
paras.  115-117. Russia's third -party response to Panel question No.  38, pp. 5-6. Switzerland's third -party 
submission, paras.  32-34. Ukraine's third -party response to Panel question No.  38, paras.  14-16. 
166 The preamble (which is the original preamble of GATT 1947) reads in relevant parts as follows:  
 Recognizing that their relations in the field of trade and economic endeavour should be 
conducted with a view to raising standards of living, ensuring full emp loyment and a large and 
steadily growing volume of real income and effective demand, developing the full use of the 
resources of the world and expanding the production and exchange of goods,  
 Being desirous of contributing to these objectives by entering into reciprocal and mutually 
advantageous arrangements directed to the substantial reduction of tariffs and other barriers to 
trade and to the elimination of discriminatory treatment in international commerce …  
167 Article  3.2 of the DSU reads in re levant part: "The dispute settlement system of the WTO is a central 
element in providing security and predictability to the multilateral trading system." In prior cases these two 
aspects have also been formulated together as one object and purpose  of the W TO Agreement , see 
Appellate  Body Report, EC – Chicken Cuts , para.  243 (where the Appellate  Body agreed with the panel that 
"the security and predictability of 'the reciprocal and mutually advantageous arrangements directed to the 
substantial reduction of t ariffs and other barriers to trade' is an object and purpose of the WTO  Agreement , 
generally, as well as of the GATT  1994.").  WT/DS597/R  
 
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  7.144.   With this in mind , we do not believe that the argument regarding the balance struck between 
obligations and  exceptions can help prove or disprove whether Article  XXI(b) is self -judging . This 
argument  seems to be  somewhat circular because  the understanding of where the balance has been 
struck seems to rest entirely on the result of the very interpretation that i s being tested.168 Thus, to 
say that the provision is entirely self-judging because its self -judging nature  is part of the balance 
struck is as correct  as saying that the provision is only partly self -judging because that is part of  the 
balance that was str uck. We, therefore, do not draw any conclusions for our interpretation from this 
aspect of the object and purpose.  
7.145.   Regarding security and predictability, we understand the United  States ' argument to be  
directly aimed at rejecting the reading discussed here. We have three observations in this regard.  
7.146.   First, we recall the narrow scope of the interpretive question  here, namely,  whether the 
circumstances described in the subparagraphs of Article  XXI(b) are subject to review by a panel . At 
issue, therefore, is  not whether, and if so how, a panel would discuss in any form the security issues 
that may arise from such circumstances.  
7.147.   Second, w e are cognizant that the international institutional framework in whi ch the WTO 
operates, has the United Nations at the centre of multilateral action dealing with the maintenance 
of international peace and security.169 The United Nations is therefore the main international 
organization for the discussion of security issues  generally. The WTO was established to provide the 
"common institutional framework for the conduct of trade relations among its Members in matters 
related to the agreements and associated legal instruments included in the Annexes to this 
Agreement".170 To tha t extent, the WTO was entrusted with providing the multilateral framework on 
international trade .171 Within the covered agreements, there are provi sions, other than Article  XXI(b)  
that directly refer to security -related matters  that affect  international  trade;  chief among them is 
Article  2.2 of the TBT  Agreement , which refers to "national security requirements ". While recogni zing 
that this concept is distinct from "essential security interests" as used in Article  XXI(b) it noneth eless 
shows  that WTO Members raise within the WTO institutional framework (e.g. within  the 
TBT Committee)  trade -related concerns with respect to security measures taken by Members.172 In 
this context, we consider that the political nature of essential security i nteres ts does not in itself  
warrant the exclusion of any evaluation thereof by a panel, particularly, bearing in mind our reading 
of the terms of Article  XXI(b) described above.   
7.148.   Third, we consider that the security and predictability of the multilateral trading system are 
intricately related to Members pursuing unilateral trade -related action with in the scope of  the 
requisite multilateral review carefully framed and provided  for in the WTO's dispute settlement 
mechanism .173 In that sense, the reading discussed here serves the security and predictability of the 
 
168 See also Switzerland's third -party submission, para.  33 (referring to "circular reasoning") ; Canada's 
third-party response to Pa nel question No.  38, para.  98 (referring to "analytical leap").  
169 Article  1 of the Charter  of the United Nations  (UN Charter) .  
170 Article  2.1 of the Marrakesh Agreement.  
171 We note that in response to a question from the Panel, the United  States  referred t o certain 
provisions of the ITO Charter on how the ITO was meant to address political matters or issues with reference 
to the United Nations and the ICJ (Articles 86(3) and 96 of the ITO Charter). According to the United  States , 
such provisions reflect that the ITO Charter negotiators recognized that the ITO would not be the appropriate 
forum for certain matters. (United  States ' response to Panel question No.  100, paras.  113-116). In this regard, 
we note that it is difficult to support the United  States ' conclusion without the benefit of any practical guidance 
from the operation of the ITO, which never existed beyond the text of the ITO Charter adopted by its 
negotiators. Additionally, as noted in this section the WTO  Agreement  does include a range of provisions that 
touch on issues relating to "security" matters.  
We note that the institutional framework of the ITO Charter referred to by the United State was not 
incorporated into the GATT or the WTO. Moreover, we do not see how th e differences of competence between 
the ITO and the United Nations may inform how the WTO generally, or its dispute settlement specifically, 
would transgress the security and predictability of the multilateral trading system by addressing issues of a 
political nature. We therefore do not see the context referred to by the United  States  contradicting the view set 
out in this paragraph.  
172 See United  States ' responses to Panel question No.  79, paras.  52-54, and No.  81, paras.  61-62 
(referring G/TBT/N/CHN/1172 , (Exhibit USA -216); G/TBT/N/CHN/1172 Regular Notification, Technical Barriers 
to Trade Information Management System , (Exhibit USA -217); and Committee on Technical Barriers to Trade, 
Minutes of the Meeting of 12 -15 November  2019 (G/TBT/M/79) , (Exhibit USA -218)).  
173 This is confirmed for instance by Article  23 of the DSU which, as the panel in US – Shrimp observed, 
"stresses the primacy of the multilateral  system and rejects unilateralism as a substitute for the procedures 
foreseen in that agreement." (Panel  Report , US – Shrimp , para.  7.43) . (emphasis original)  WT/DS597/R  
 
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  multilateral trading system by allowing for sufficient flexibility for Members to adopt the measures 
they consider necessary  for the protection of their security interests, while  at the same time ensuring 
that this flexibility is exercised within the limits intended  by the drafters . 
7.149.   We underscore that we agree with the United  States  that the WTO should not become a 
forum to dis cuss security issues generally. Rather, the WTO  Agreement  and its annexes set forth 
the limited circumstances under which the WTO and its dispute settlement mechanism have been 
tasked with addressing security matters linked to international trade. Only in those circumstances, 
would it be appropriate for those issues to be addressed.  
7.150.   Summing up our object and purpose analysis, we do not see the reading that we have 
adopted as contradicting the object and purpose of the GATT  1994, and, more generally, that o f the 
WTO Agreement . In particular, review by a panel of the subparagraphs of Article  XXI(b), in our view, 
supports  the security and predictability of the multilateral trading system.   
7.3.6   Whether there is a subsequent agreement regarding the interpretation o r 
application of Article  XXI(b)  
7.151.   Having examined the ordinary meaning, context , and object and purpose, we now turn to 
the final point under Article  31 of the Vienna  Convention . This is whether there is a subsequent 
agreement within the meaning of Article  31(3)(a) on the self -judging nature of Article  XXI, as 
submitted by the United  States . Article  31(3)(a) requires that : 
There shall be taken into account, together with the context:  
(a) any subsequent agreement between the parties regarding the interpretati on of the 
treaty or the application of its provisions;  
7.3.6.1   Arguments  of the parties and the third parties  
7.152.   The United  States  submits that such a subsequent agreement confirming the self -judging 
nature of Article  XXI(b) was concluded in 1949 in the form of a GATT Council Decision in the GATT 
dispute US – Export Restrictions (Czechoslovakia)  (1949 GATT Decision ). Referring to the minutes 
of the GATT Council meeting, the United  States  considers relevant statements ma de by the United 
Kingdom, Cuba, Pakistan, and the GATT Council chairman to support the idea that Article  XXI(b) of 
the GATT 1947 was considered self -judging . The United  States  also highlights that the rules of 
procedure existing at the time provided that " decisions shall be taken by a majority of the 
representatives present and voting".174 These rules, according to the United  States , neither 
restricted the contracting parties' ability to interpret the provisions of the GATT 1947, nor provided 
special procedu res for adopting an interpretation of the provisions.175   
7.153.   Hong Kong, China  argues that the 1949 GATT Decision does not qualify as a subsequent 
agreement pointing out that the 1949 GATT Decision pertains to a specific dispute. Hong Kong, China 
also highligh ts the fact that the decision was adopted by a majority vote and takes the view that a 
subsequent agreement must reflect consensus. Furthermore, on the substance of the decision, Hong 
Kong, China considers that the "actual course of events" in that dispute  undermines the US position 
in this dispute that Article  XXI(b) is entirely self -judging.176     
7.154.   Among the third parties , Canada, the European  Union , and Russia comment on this issue 
taking positions similar to that of Hong Kong, China.177 
7.3.6.2   Panel's assessment  
7.155.   We recall that this 1949 GATT Decision concerned a dispute between Czechoslovakia and 
the United  States . Czechoslovakia, pursuant to Article  XXIII paragraph 2 of the GATT 1947, had 
 
174 United States ' first written submission, para.  76. 
175 United  States ' first written submission, paras.  68-78. 
176 Hong Kong, China's response to Panel question No.  56, paras.  193-202. 
177 Canada's third -party response to Panel question No.  39, paras.  99-101. European  Union 's third -party 
response to Panel question No.  39, paras.  118-120; European  Union 's third -party sub mission in DS544, 
(Exhibit EU -5), paras.  58-78. Russia's third -party response to Panel question No.  39, pp. 6 -7. WT/DS597/R  
 
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  requested a decision that t he United  States  had failed to carry out its obligations under Article  I 
through its administration of a  certain  export licence.  The United  States  defended its measure 
primarily under Article  XXI.178 At the GATT  Council meeting in question, the United  States  reiterated 
its proposal that the re quest be dismissed on the ground that the claim was not supported by facts.179 
Cuba, Pakistan and the United Kingdom intervened  taking the view that the US measure was justified 
under Article  XXI. The chairman, in light of the invocation of exceptions, refo rmulated the relevant 
question to be decided under Article  XXIII paragraph 2 as being about "whether the Government of 
the United States had failed to carry out its obligations under the Agreement through its 
administration of the issue of export licences. "180 There was a vote by roll -call, 17 voted against, 
three  abstained and two were absent. Only Czechoslovakia voted in favour.181 
7.156.   In order for a decision to qualify as a subsequent agreement, the terms and content of the 
decision must express an agreement  between Members on the interpretation  or application  of a 
provision of WTO law.182 The Appellate  Body has specified that the extent to which any such 
agreement "will inform the interpretation and application of a term or provision … in a specific case 
… will  depend on the degree to which it 'bears specifically' on the interpretation and application of 
the respective term or provision".183 Such an agreement must also "clearly express[] a common 
understanding, and an acceptance of that understanding among Members" on the interpretive 
question at issue.184  
7.157.   We also note the ILC's Draft Conclusions on subsequent agreements and subsequent practice 
in relation to the interpretation of treaties185, of which the United Nations General Assembly (UN 
General Assembly ) took note in December 2018 .186 The definition of "subsequent agreement" 
contained in Draft Conclusion  4 specifically refe rs to an agreement between the parties "regarding 
the interpretation of the treaty or the application of its provisions". The Commentary to this 
Conclusion 4187 explains that "[t]he parties must … intend, possibly among other aims, to clarify the 
meaning of  a treaty or how it is to be applied", and refers, inter alia , to the Appellate  Body position 
as described above.188 Draft Conclusion  6 and its accompanying Commentary further specify that 
the identification of subsequent agreements requires "a determinatio n whether the parties, by an 
agreement …, have taken a position regarding the interpretation of the treaty" or "whether they 
 
178 Specifically , under Article  XXI(b)(i), see 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 of the Agenda, 
GATT/CP.3/38 (June  2, 1949), (Exhibit USA -15), p. 3.  
179 Summary Record of the Twenty -Second Meeting, GATT/CP.3/SR.22 (June  8, 1949) & 
GATT/CP.3/SR.22/Corr.1 (June 20, 1949) (Minutes GATT meet ing 8 and 20 June 1949), (Exhibit USA -16), p.  5. 
180 Minutes GATT meeting 20  June 1949, (Exhibit USA –16), p. 9: "The Czechoslovakian representative 
had posed the question of whether or not such regulations conform to the provisions of Article  I. The chairman, 
however, was of the opinion that the question was not appropriately put because the United  States  
Government had defended its actions under Articles XX and XXI which embodied exceptions to the general rule 
contained in Article  I. The question shou ld be put as expressed in the Agenda item, i.e. whether the 
Government of the United States had failed to carry out its obligations under the Agreement through its 
administration of the issue of export licences."  
181 Minutes GATT meeting 8 and 20 June 1949, (Exhibit USA -16), p. 9.  
182 Appellate  Body Report, US – Clove Cigarettes , para.  262. 
183 Appellate  Body Report, US – Tuna II (Mexico) , para.  372. See also Appellate  Body Report, US – 
Clove Cigarettes , para.  267. 
184 Appellate  Body Report, US – Clove Cigarettes , para. 267. In US – Clove Cigarettes  and US – Tuna II 
(Mexico) , the Appellate  Body found that a Doha Ministerial Decision and a TBT Committee Decision satisfied 
each of the necessary elements for demonstrating the existence of a "subsequent agreement". In both cases, 
the relevant decision was adopted by consensus after the establishment  of the WTO and expressed a common 
understanding as to the interpretation or application of a provision of the TBT  Agreement . (See Appellate  Body 
Reports, US – Clove Cigarettes , paras.  263, 266, and 267; and US – Tuna II (Mexico) , paras.  370-373).  
185 Official Records of the General Assembly, Seventy -third Session, Supplement No.  10 (A/73/10) 
(available at: https://legal.un.org/ilc/reports/2018/english/a_73_10_advance.pdf  (acces sed 
29 September  2022)).  
186 UN General Assembly, Seventy -third session, Resolution of 20  December  2018, Subsequent  
agreements and subsequent practice in relation to the interpretation of treaties , A/RES/73/202.   
187 The draft conclusions of the ILC are alwa ys to be read together with the accompanying 
commentaries (see Official Records of the General Assembly, Seventy -third Session, Supplement No.  10 
(A/73/10), p. 16, Commentary to Draft Conclusion 1, para.  (1)).  
188 Official Records of the General Assembly, S eventy -third Session, Supplement No.  10 (A/73/10), 
p. 30, Commentary to Draft Conclusion 4, para.  (13) and fn  102, (referring to Appellate  Body Report, US – 
Tuna II (Mexico) , para.  371). WT/DS597/R  
 
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  were motivated by other considerations".189 Since the application of a treaty "almost inevitably 
involves some element of interpreta tion"190, an agreement "regarding the interpretation" of a treaty 
or an agreement "on the application" of that treaty both imply that "the parties assume a position 
regarding the interpretation of the treaty".191 Draft Conclusion 10 further underlines that a n 
"agreement under article 31, paragraph s 3 (a) and (b), requires a common understanding regarding 
the interpretation of a treaty which the parties are aware of and accept" .192 
7.158.   Like Hong Kong, China and the third parties, we consider that the very nature of  the 
procedure in which the 1949 GATT Decision was taken (namely dispute settlement under 
Article  XXIII), excludes that this decision bears specifically on the interpretation and application of 
Article  XXI. This is because the subject  matter of the decisio n is not Article  XXI itself, but rather the 
measure at issue (export licen sing) as challenged by Czechoslovakia. By its very nature, therefore, 
the decision concerns the application of provisions (including Article  XXI) to a particular set of facts 
in a pa rticular case and is binding only on the parties to the dispute.193 Consistent with this, the 
statements made during the Council meeting, including the United  States ' own statements194, bear 
on the application of Article  XXI to the facts of that case, not on the nature of the provision. Similarly, 
the chairman's  decision to reformulate what needed to be decided by the Council merely reflects the 
fact that the finding encompasses not only a possible violation (as requested by Czechoslovakia), 
but also a poss ible justification under the exceptions.195            
7.159.   We therefore disagree with the United  States  that the 1949 GATT Decision should be 
considered a subsequent agreement pursuant to Article  31(3)(a) of the Vienna  Convention .196 
7.3.7   Conclusion on interpretation  under Article  31 of the Vienna  Convention  
7.160.   We have considered the ordinary meaning of Article  XXI(b) focusing primarily on the 
grammatical structure of the provision. Based on the structure that we discern from the text, the 
phrase "which it considers" in the chapeau of Article  XXI(b) does not extend to the subparagraphs. 
It follows from this reading that Article  XXI(b) is only partly self -judging in that the subparagraphs 
are not subject solely to the invoking Member's own determination . Instead, the subpa ragraphs are 
subject to review by a panel and a finding that the circumstances set out therein do not apply, means 
that the action cannot be justified under the exception.   
7.161.   We have tested this meaning against the context of Article  XXI(b) and the object an d 
purpose of the covered agreements and have confirmed that  it make s sense.197  
 
189 Official Records of the General Assembly, Seventy -third Session, Supplement No.  10 (A/73/10), 
pp. 43 and 48, Commentary to Draft Conclusion 6, paras.  (2) and (18). In this context, "interpretation" is the 
process by which the meaning of a treaty, includin g of one or more of its provisions, is clarified, and 
"application" encompasses conduct by which the rights under a treaty are exercised or its obligations are 
complied with, in full or in part. (Ibid . p. 43, para.  (3)).  
190 Official Records of the General Assembly, Seventy -third Session, Supplement No.  10 (A/73/10) , 
p. 44, Commentary to Draft Conclusion 6, para.  (4). See also Second report on subsequent agreements and 
subsequent practice in relation to the interpretation of treaties, A/CN.4/671, 26  March  2014, para.  5: "In fact, 
conduct by which the acting State cannot be said to assume a position regarding the interpretation of the 
treaty also cannot be undertaken 'in' its 'application'."    
191 Official Records of the General Assembly, Seventy -third Session,  Supplement No.  10 (A/73/10), 
p. 44; Commentary to Draft Conclusion 6, para.  (4).   
192 Official Records of the General Assembly, Seventy -third Session, Supplement No.  10 (A/73/10), 
p. 75; Draft Conclusion 10 (1).  
193 For GATT decisions specifically, see Appellate  Body Report, Japan – Alcoholic Beverages II , 
DSR 1996:1,  p. 107 (referring to GATT Panel  European Economic Community – Restrictions on Imports of 
Dessert Apples , para.  12.1).  
194 We agree, in this regard, with Hong Kong, China that the statements made by the United  States  
seem to imply the view that it bore the burden of demonstrating that the measures at issue were in fact within 
the scope of one of the subparagraphs . (See Hong Kong, China's response to Panel question No.  56, 
para. 202).  
195 See also European  Union 's third -party submission in DS544,  (Exhibit EU -5), para.  77. 
196 Given this, we can  leave open what would have been the applicable procedure for adopting a 
subsequent agreement under GATT and whether such a subsequent agreement could have been adopted by a 
majority  vote.  
197 We note that the panel in Russia – Traffic in Transit  arrives at  the same overall conclusion. See 
Panel  Report , Russia – Traffic in Transit , para.  7.82. WT/DS597/R  
 
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  7.162.   As the meaning is clear, our interpretive exercise ends here. In particular, we do not need 
to have recourse to supplementary means of interpretation to determine the meaning  of 
Article  XXI(b) . This would be required under Article  32 of the Vienna  Convention198 only if the 
interpretation according to Article  31 had left the meaning ambiguous or obscure or had led to a 
result which was manifestly absurd or unreasonable. Neither is the case here.  
7.163.   However, as noted above, recourse to supplementary means under Article  32 may also serve 
to confirm the meaning that results from the application of Article  31. Referring to this function of 
Article  32, the United  States  develop s extensive arguments to demonstrate that the negotiating 
history of Article  XXI(b) confirms its own reading, namely that the clause is entirely self -judging. As 
we have found above, this reading is not based on the text of Article  XXI(b). Therefore, there can 
be no confirmation of that reading; what is not in the text cannot be confirmed by any argument on 
negotiating history.199 While we  therefore see no need to discuss the United  States ' arguments in 
detail, we have considered them and the information subm itted in support of them as well as 
arguments and relevant information submitted by Hong Kong, China and the third parties or 
otherwise publicly  available. We have done so with a view to establishing whether our own reading 
of Article  XXI(b) can be confirm ed. We note that the panel in Russia – Traffic in Transit has also 
examined the GATT and International Trade Organization ( ITO) negotiating history with the same 
purpose.200         
7.3.8   Negotiating history or other supplementary means of interpretation  
7.3.8.1   GATT (and ITO) negotiations  
7.164.   We begin with the negotiating history of the  GATT 1947 . The parties and third parties do not 
contest , nor do we disagree,  that this  is a supplementary means of interpretation under Article  32 
of the Vienna  Convention  in respect of Ar ticle XXI(b) of the  GATT  1994.201  
7.165.   The background on the ITO and GATT negotiations and the context of the specific proposals 
on Article  XXI(b) have been summarized by the panel in Russia – Traffic in Transit .202 For the 
purposes of our analysis, we recall that those negotiations took place between October 1946 and 
March 1948, on the basis of a proposal for the ITO advanced by the United  States .203  
7.166.   The phrase "which it considers" was incorporated into the negotiating text as a result of a 
proposal tabled by the United  States  on 4 July 1947.204 Along w ith some minor changes introduced 
 
198 Article  32 of the Vienna  Convention  provides as follows:  
Recourse may be had to supplementary means of interpretation, including the preparatory work 
of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting 
from the application of article 31, or to determine the meaning when the interpretation according 
to article 31:  
(a) leaves the meaning ambiguous or obscure; or  
(b) leads to a result which is manifestly absurd or unreasonable  
199 See also Yearbook of the International Law Commission, 1966, vol. II, p. 223, para  (18):  
[T]he Commission's approach to treaty interpretation was on the basis that the text of the treaty 
must be pre sumed to be the authentic expression of the intentions of the parties, and that the 
elucidation of the meaning of the text rather than an investigation ab initio  of the supposed 
intentions of the parties constitutes the object of interpretation. It formulated article 27 [now 31] 
on that basis, making the ordinary meaning of the terms, the context of the treaty, its object and 
purpose, and the general rules of inte rnational law, together with authentic interpretations by the 
parties, the primary criteria for interpreting a treaty.  
200 Panel  Report , Russia – Traffic in Transit , paras.  7.83-7.100. We note that th at panel also dealt with  
some aspects of the Uruguay Roun d in the Appendix to the Panel  Report , see Appendix, para.  1.61. 
201 United  States ' first written submission, para.  79; Hong Kong, China's response to Panel question 
No. 57, para s. 203-204. See also Canada's third -party response to Panel question No.  40, paras. 102-106; 
European  Union 's third -party submission in DS544, ( Exhibit  EU-5), paras.  79-81; and Switzerland's, third -party 
submission, para.  39. 
202 Panel  Report  Russia – Traffic in Transit, paras.  7.84-7.88. 
203 Panel  Report , Russia – Traffic in Transit , para.  7.84. 
204 Second Session of the Preparatory Committee of the United Nations Conference on Trade and 
Employment, (July  4, 1947) , (Exhibit USA -25), p. 13 , containing the United States ' proposal of 4  July 1947. 
The clause was worded as follows:  
ARTICLE 94. General Exceptions.  
 WT/DS597/R  
 
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  by the Legal Drafting Committee205, the text was included in the final ITO Charter draft of the Geneva 
Round as Article  94 under the heading "G eneral Exceptions".206 This text then formed the basis for 
Article  XXI in the GATT 1947 that  was adopted on 30 October 1947.207 
7.167.   When submitting its July 1947 proposal, the United  States  did not provide any specific 
explanation regarding the new phrase "which it considers" or any other aspect of the proposed clause 
on security exceptions. The only explanations, and the only discussion on the content of the security 
exception s on the recor d of the negotiations, therefore, are those that took place at the meeting of 
the negotiating committee on 24  July 1947.208 As the United  States  notes in its submission, a 
discussion was triggered by the delegate from the Netherlands who requested clarifica tion on the 
meaning of a Member's "essential security interests" and suggested that this reference could 
represent "a very big loophole" in the ITO Charter.209 In this connection, we consider it worth quoting  
the response that the United  States ' delegate ga ve in some detail210 as it confirms our understanding 
that the exception was intended to be only partly self -judging. The United  States ' delegate stated:  
We recognized that there was a great danger of having too wide an exception and we 
could not put it int o 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 security 
interests and , at the same time, so far as we could, to limit the exception so as to 
prevent the adoption of protection for maintaining industries under every conceivable 
circumstance.211 
7.168.   To us, the statement makes it clear that the provision was intended to be self -judging insofar 
as it would be for a Member to determine for itself what action was necessary for the protection of 
its security interest s, but that the subparagraphs were intended to limit the exception to certain 
circumstances. Thus, the subparagraphs would  serve the purpose of limiting the exception to 
situations or circumstances which may give rise to "real security interests" , thereby counterbalancing 
a Member's right to determine what action was needed to protect its essential security interests. 
The Uni ted States ' delegate emphasized the need for such a "balance" and described the proposal 
as "the best we could produce to preserve that proper balance".212  
 
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 o n 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 Ch arter for the maintenance 
of international peace and security.  
205 E/PC/T/159, Report of the Legal Drafting Committee of 9  August  1947 (available at: 
https://docs.wto.org/gattdocs/q/UN/EPCT/159. PDF) (accessed 29 September  2022) .  
206 Report of the Second Session of the Preparatory Committee of the United Nations Conference on 
Trade and Employment – Draft Charter,  E/PC/T/A/SR/186 (Sep. 10, 1947), (Exhibit  USA-43). 
207 The text of the Protocol is available at 
https://www.wto.org/english/res_e/booksp_e/gatt_ai_e/prov_appl_gen_agree_e.pdf  (accessed 
29 September  2022).  
208 Second Session of the Preparatory Committee of the United Nations Conference on Trade and 
Employment, Verbatim Report, E/PC/T/A/PV/33 (July  24, 1947); & Second Session of the Preparatory 
Committee of the United Nations Conference on Trade and Employment, Corrigen dum to Verbatim Report, 
E/PC/T/A/PV/33.Corr.3 (July  30, 1947) ( Minutes of the 24 and 30  July 1947 Negotiation Meetings ), 
(Exhibit  USA-30).   
209 United States' first written submission, para.  89 (referring to Minutes of the 24 and 30  July 1947 
Negotiation Me etings , at 19 ( Exhibit USA-30)). 
210 For a more extensive quote see Panel  Report , Russia – Traffic in Transit , paras.  7.92-7.93. 
211 Minutes of the 24 and 30  July 1947 Negotiation Meetings , (Exhibit USA -30), p. 20 and Corrigendum.  
212 Minutes of the 24 and 30  July 1947 Negotiation Meetings , (Exhibit USA -30), p. 21.  WT/DS597/R  
 
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  7.169.   We see nothing in the further course of the discussion at that 24  July 1947 meeting that 
contradicts  this understanding.213 In particular, we do not agree with the United  States  that an 
exchange on the availability of legal redress for the security exception demonstrates that the drafters 
understood that essential security measures could not be challenged  as violating obligations in the 
underlying agreement.214 That exchange was triggered by a concern  raised by the Australian 
delegate that by moving the security exception to the end of the Charter the dispute settlement 
provision in the Commercial Policy Ch apter (which, as the United  States  acknowledges, did not 
distinguish between breach or violation  claims and non -violation claims) would not be available for 
the exception.215 As the United  States  points out, the United  States ' delegate stated that "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".216 However, the United  States ' delegate, in this context, 
also referred to action that was "not in confli ct with the terms of Article  94" to then allude to the 
possibility of "some kind of redress" under the then existing dispute settlement clause.217 In our 
view, the reference to the possibility of conflict with the terms of the security exception confirms ou r 
understanding that Article  XXI has elements, namely the limitations set out in the subparagraphs, 
against which the action taken by a Member can be reviewed. Thus, while this specific debate (as 
well as later discussions that the United  States  refers to)218 was about the availability of non -violation 
 
213 In particular, we do not see the chairman's reaction to the discussion as a confirmation that the 
security exception was intended to be entirely self -judging. As the United States reports, the chairman made 
the following remark:  
In defence of the text, we might remember that it is a paragraph of the Charter of the ITO and 
when the ITO is in operation I think the atmosphere inside the ITO will be the only efficient 
guarantee against abuses of the ki nd to which the Netherlands Delegate has drawn our attention.  
(United States' response to Panel question No.  46, para.  214 (citing Minutes of the 24 and 
30 July 1947 Negotiation Meetings , (Exhibit USA -30), p. 21 )). 
We note, and agree with, Pinchis -Paulsen' s reading of the reference to "atmosphere in the ITO":  
[T]he reference to the organization 's "atmosphere " signals how delegations recognized the need 
to embed diplomacy within the institution for the success of the embryonic dispute settlement 
mechanism. I n other words, "atmosphere " was not viewed as an alternative to a review via the 
ITO dispute settlement procedure. Rather, the "atmosphere " was an assumed aspect of the 
structure that supported the formal process. (M. Pinchis -Paulsen, Trade Multilateralism  and U.S. 
National Security: The Making of the GATT Security Exceptions , Michigan Journal of International 
Law, (2020) Vol. 41, 109 -193, p. 17 2). (fn omitted )  
214 United States' first written submission, para.  94. We note that the clause providing legal redress was 
set out in Article  35(2) and stated in relevant part as follows:  
If any Member should consider that any other Member is applying any measure, whether or not 
it conflicts with the terms of this Charter, o r that any situation exists, which has the effect of 
nullifying or impairing any object of this Charter, the Member or Members concerned shall give 
sympathetic consideration to such written representations or proposals as may be made with a 
view to effecti ng a satisfactory adjustment of the matter.  
215 As the United States observes, Australia, around the same time, had submitted a proposal to make 
that distinction, United States' first written submission, para.  95. 
216 United States' first written submission, p ara. 91. 
217 The full quote is as follows:  
It is true that 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 confli ct 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 ( Minutes of the 24 and 30  July 1947 Negotiation Meetings , (Exhibit US A-30), pp. 26-
27.)).  
218 United States' first written submission, paras.  98-104, referring to discussions in 1948 about a UK 
proposal that would have added the following to draft Article  94 of the ITO Charter:  
If any action taken by a Member under paragraph 1 of th is Article  nullifies or impairs any benefit 
accruing to another Member directly or indirectly the procedure set forth in Chapter VIII of this 
Charter shall apply and the Organization may authorize such other Member to suspend the 
application to the Member taking the action of such obligations or concessions under or pursuant 
to this Charter as the Conference deems appropriate ; ….  
We note that the discussion is based on the revised text of Article  94 (later Article  99), which, as we 
discuss in para.  7.171  below, more clearly links the subparagraphs directly to the word "action" in the chapeau . 
Reference was made to action as circumscribed in su bparagraph (iii), i.e. as taken in time of war and other 
international emergency which was then described as "consistent with the Charter". In our view this confirms 
our reading that what was set out in the subparagraphs was assumed to qualify the action i n question subject 
to objective determination . Indeed, the Indian delegate at the meeting expressed some doubt whether under 
the proposed new paragraph 2 the bona fide  of an action allegedly coming within Article  94 could be 
questioned (see United Nations Conference on Trade & Employment, Sixth Committee: Organization, 
Amendment to Article  94 Proposed by the United Kingdom Delegation, E/CONF.2/C.6/W.48 (Jan . 16, 1948) , 
 WT/DS597/R  
 
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  claims , it was based on a scenario that assum ed that an action  was consistent with the terms of 
Article  XXI including those that are subject to objective review.219       
7.170.   As noted above, the United  States ' proposal, with some minor changes, was adopted into 
the final ITO draft of the Geneva Round as Article  94 and formed the basis for Article  XXI in the 
GATT  1947,  which was adopted on 30  October  1947. While the GATT  1947 provisionally entered into 
force on 1  January  1948, the negotiations on the ITO Charter went into a final round ending with 
the Havana conference in March 1948, at which the final ITO Charter (Havana Charter) was adopted. 
We examined certain discussions in that round because we consider them to be rel evant 
circumstances to the GATT 1947 negotiations given the parallelism between the negotiations up to 
that point, the close ties between the GATT  1947 and the ITO Charter and the close temporal 
proximity of this final ITO Charter negotiation round to the Geneva Round.220   
7.171.   Of particular interest, in our view, is a modification introduced in draft Article  94, which later 
became Article  99 of the Havana Charter. This was a change made, as explained in the minutes of 
the relevant negotiating committee, "in ord er to indicate more clearly that the subparagraphs refer 
to 'action' and not to 'interests'".221 Thus the final text of the Havana Charter, in Article  99, read as 
follows:  
Nothing in this Charter shall be construed  
… 
(b) to prevent a Member from taking, eit her singly or with other States, any action 
which it considers necessary for the protection of its essential security interests, where 
such action   
(i) relates  to fissionable materials or to the materials from which they are derived, or  
(ii) relates  to the traffic in arms, ammunition or implements of war, or to traffic in other 
goods and materials carried on directly or indirectly for the purpose of supplying a 
military establishment of the Member or of any other country; or  
(iii) is taken in time of war or other emergency in international relations; o r … 222 
7.172.   This text clearly spells out what our interpretation of Article  XXI(b) has also yielded, namely 
that the subparagraphs are not part of the relative clause  in the chapeau , but instead directly relate 
to the word "action" which precedes that sentence. The United  States  points out that this 
modification was not adopted du ring the Uruguay Round.223 Although factually correct, this does not 
assist us in gaining a better understanding  of the intentions of the original drafters. What is 
significant to us, is that the ITO  Charter drafters intended "to indicate more clearly" what  they 
understood the text of the 1947 Geneva Round (which resulted in Article  XXI(b)) to mean. Given 
 
(UK proposal on  Article  94), (Exhibit USA -41), p. 2; and United Nations Conference on Tra de & Employment, 
Sixth Committee, Notes of the Fourth Meeting (Article  94), E/CONF.2/C.6/W.60 & E/CONF.2/C.6/W.60/Corr.1 
(Jan. 20, 1948) , (Exhibit  USA-42), p.3)).     
219 Canada's third -party response to Panel question No.  55, paras.  140-142; European  Union 's third -
party submission in DS544, (Exhibit EU -5), paras.  95-101. 
220 We note that neither the United States nor Hong Kong, China contests the relevance of the continued 
ITO Charter negotiations under Article  32 of the Vienna  Convention . Hong Kong, China's response to Panel 
question No.  100, para.  101 (referring to circumst ances surrounding the conclusion of the GATT 1947); see 
also United States' own reliance on Havana Charter negotiations in 1948, United States' first written 
submission, para.  98.   
221 Minutes of the Sixth Committee, Sub -Committee I (on Article  94) of 13  January  1948, p. 4 ( chairman 
making the suggestion for the change), (available at https://docs.wto.org/gattdocs/q/UN/ECONF2/C6 -W40.PDF  
(accessed 29 September 2022 )) and subsequent proposal by the United Kingdom, UK proposal on  Article  94, 
(Exhibit USA -41), p. 2.  
222 Emphasis added.  
223 On this basis the United States asserts that the difference between the text of Article  XXI(b) of the 
GATT  1994 and Article  99 of the Havana Charter supports the reading that Article  XXI(b) is self -judging, see 
United States' response to Panel question No.  100, para s. 111-112.  WT/DS597/R  
 
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  the proximity of the ITO Charter and GATT negotiations, this understanding very likely reflects the 
understanding of the original negotiators of this claus e in the Geneva Round in July 1947.  
7.173.   Before turning to the negotiating history of the Uruguay Round, we consider it apposite to 
briefly comment on the relevance of certain internal US documents that reflect internal discussions 
in the United  States ' delega tion in July 1947 regarding the proposal on Article  XXI(b) and the extent 
of its self -judging nature. The panel in Russia – Traffic in Transit refers to these documents based 
on information contained in an academic publication .224 In this proceeding the Uni ted States  
submitted the relevant internal US documents as exhibits.225 The United  States ' position is that these 
documents do not constitute a supplementary means of interpretation within the meaning of 
Article  32 of the Vienna  Convention  because they were not in the public domain, or at least in the 
hands of the parties, at the time of the negotiations.226 The United  States  also submits that these 
documents, when viewed in context, confirm that Article  XXI(b) is self -judging.227 Hong Kong, China 
and certain third parties take the view that these documents may qualify as a supplementary means 
of interpretation under Article  32.228 Furthermore, like the panel in Russia – Traffic in Transit , they 
view these documents as supporting  their reading , namely that the scope of unilateral action 
accorded to the Member invoking the security exception does not extend to the subparagraphs of 
Article  XXI(b).229  
7.174.   We do not need to address the question of  whether these documents fall under Article  32 of 
the Vie nna Convention . This is because, in this case, if anything, they would merely serve to confirm  
a specific  understanding, not to determine the meaning, of Article  XXI(b).230 As the United  States  
suggests , nothing prevents us from considering any available ma terial.231 Thus, even if  these 
documents do  not qualify under Article  32 of the Vienna  Convention , nothing would prevent us from 
considering the information for the limited purpose it serves here, namely confirmation. In our view , 
these documents certainly can be seen as provid ing inform ation on the United  States ' own 
understanding of, and internal differences regarding, its proposal of July 1947 even if they do not 
shed further light on the common intention of the drafters. Furthermore, in terms of the 
United  States ' own position, these documents confirm what we see clearly expressed in the 
 
224 Panel  Report , Russia – Traffic in Transit , paras.  7.89-7.91 (referring to K. Vandevelde, The First 
Bilateral Investment Trea ties: U.S. Postwar Friendship, Commerce, and Navigation Treaties , (Oxford University 
Press 2017), pp. 145 -154).  
225 See U .S. Delegation (Internal), Second Meeting of the U .N. Preparatory Committee for the 
International Conference on Trade and Development Gen eva, Minutes of Delegation Meeting, July  2, 1947, 
NARA, Record Group 43, International Trade Files, Box 133, Folder marked "Minutes U.S. Delegation (Geneva 
1947) June  21 – July 30, 1947." – 8:00 p.m. meeting  – July 2, 1947, (Exhibit USA -69); U .S. Delegati on 
(Internal), Second Meeting of the U .N. Preparatory Committee for the International Conference on Trade and 
Development Geneva, Memorandum from Seymour J. Rubin dated  July 14, 1947, NARA, Record Group 43, 
International Trade Files, Box 133, Folder marked  "Minutes U.S. Delegation (Geneva 1947) June  21 – July 30, 
1947." – July 14, 1947, Memo  from Seymour J. Rubin, Legal Advisor of US Delegation, regarding Thorp and 
Neff Memo, (Exhibit USA -70); U .S. Delegation (Internal), Department of State, Memorandum of Conversation, 
"Security Exceptions to Proposed ITO Charter" June  17, 1946, NARA, Record Group 43, International Trade 
Files, In Folder "ITO Charter – Security" (June  17, 1946), (Exhibit USA -73); U .S. Delegation (Internal), 
Services Economic Disarmament Argument Draft (1946), (Exhibit US A- 74); U.S. Delegation (Internal), Letter 
from Coppock to Wilcox, "National Security Provisions in the Draft Charter" July  3, 1946, NARA, Record 
Group  43, Internatio nal Trade Files, Box 13, In Folder "ITO Charter – Security"  July 3, 1946, (Exhibit USA - 
75); U .S. Delegation (Internal), Second Meeting of the U .N. Preparatory Committee for the International 
Conference on Trade and Development Geneva, Minutes of Delegati on Meeting, July  4, 1947, NARA, Record 
Group 43, International Trade Files, Box 133, Folder marked "Minutes U.S. Delegation (Geneva 1947) June  21 
– July 30, 1947." – July 4, 1947, at 2, (Exhibit USA -76).  
226 United States' first written submission, para.  139. 
227 United States' first written submission, paras.  144-161. 
228 Hong Kong, China's response to Panel question No.  59, para.  209; European  Union 's third -party 
response to Panel question No.  42, para.  124 (referring to them as "circumstances of the conclusion of 
GATT  1947 or other means of interpretation, keeping in mind that the list of supplementary means of 
interpretation in Article  32 of the VCLT is not exhaustive"); similarly, Canada's third -party response to Panel 
question No.  42, paras.  108-110. 
229 Hong Kong, China's response to Panel question No.  59, paras.  212-215; Canada's third -party 
response to Panel question No.  42, para.  125; European  Union 's third -party submission in DS544,  
(Exhibit  EU-5), paras.  107-115. 
230 See paras.   7.162 -7.163  above.   
231 United States' response to P anel question No.  101, paras.  117-121. WT/DS597/R  
 
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  explanations the United  States ' delegate provided to the negotiating committee during the 
24 July 1947 meeting as discussed above.232     
7.175.   Concluding on the GATT/ITO ne gotiating history, we understand the relevant statements of 
the United  States ' delegate explaining the United  States ' proposal on Article  XXI as confirming our 
reading that the subparagraphs were intended to limit an invoking Member's right to take any act ion 
it considered necessary for the protection of its essential security interests. Furthermore, we find 
confirmation for our reading of the structure of Article  XXI(b) in the modification applied to the 
provision by the negotiators of the Havana Charter , which clearly stated that the subparagraphs 
refer to "action" and not to "essential security interests," thereby excluding the subparagraphs from 
the scope of the phrase "which it considers" in the chapeau .  
7.3.8.2   Uruguay Round negotiations  
7.176.   We now turn to the ne gotiating history of the Uruguay Round. We recall that the Ministerial 
Declaration of Punta del Este in 1986 mandated the Uruguay Round participants to "review existing 
GATT Articles, provisions and disciplines as requested by interested contracting partie s and, as 
appropriate, undertake negotiations" .233 On this basis several proposals were submitted, including 
two proposals on Article  XXI, tabled by Argentina and Nicaragua.234 Both Argentina's and Nicaragua's 
proposals aimed, inter alia , at providing for certain procedural disciplines when invoking  
Article  XXI(b) but also for interpretations of specific terms in this provision , namely "emergency in 
international relations" (Argentina  and Nicaragua) and "essential security interests" (Argentina). 
Neither proposal, nor for that matter any proposal on substantive modifications of provisions  of the 
GATT 1947 , was adopted at the end of the Uruguay Round.235 Instead, the GATT  1994 incorporated 
the GATT  1947 tel quel , qualified through several  explanatory notes (which do not concern 
Article  XXI).  
7.177.   On record are discussions on Argentina's and Nicaragua's proposals in the relevant 
negotiating group . The statemen ts made by various delegates focused mostly on what was viewed 
as the political nature of action taken under the security exception.236 In our view this information 
does not allow us to discern any common understanding of Article  XXI(b) and the role of its 
subparagraphs, or, for that matter, the specific reasons why the proposals were not adopted. In 
other words, the information is not apt to confirm ( nor contradict) our reading that the phrase "which 
it considers" does not extend to the subparagraphs.      
7.178.   Finally, we briefly turn to the negotiations on the GATS and TRIPS  Agreement  during the 
Uruguay Round , which concluded with the inclusion into those agreements of security exceptions 
that are directly modelled on Article  XXI. This fact alone, however, does  not tell us anything about 
how the drafters viewed this provision and whether they considered that the phrase "which it 
considers" extended to the subparagraphs. The United  States  points to unsuccessful attempts in the 
GATS negotiations to merge the secur ity exceptions with a general exception s clause modelled on 
Article  XX. This would have meant that the security exceptions would also have been subject to the 
non-discrimination disciplines in the chapeau  of that Article  XX-like exception.237 For the 
United  States , the fact that these proposals were not adopted is proof,  inter alia , that the GATS 
drafters, intended "that security exceptions were to be self -judging".238 However, in our view, even 
accepting  that the rejection of a proposal to merge the exceptio ns, would  prove anything, it would 
at most show that the drafters did not intend to subject  this security exception to the same disciplines 
as other exceptions. This is a different issue from  whether what is in the subparagraphs in Article  XXI 
 
232 See para s. 7.167 -7.168  above.  
233 Ministerial Declaration at Ministerial Conference, Punta del Este, 1986, (available at  
https://docs.wto.org/gattdocs/q/UR/TNCMIN86/MINDEC.PDF ) (accessed on 29 September 2022) . 
234 Negotiating Group on GATT Articles, Communication from Argentina, MTN.GNG/NG7/W/44 (Feb . 19, 
1988), (Exhibit USA -45); Negotiating Group on GATT Articles, Article  XXI Proposal by Nicaragua, 
MTN.GNG/NG7/W/48 (June  18, 1988), (Exhibit USA -44). 
235 See United States' response to Panel question No.  25, paras.  128-129. 
236 Negotiating Group on GATT Articles, N ote on Meeting of 27 -30 June 1988, MTN.GNG/NG7/8 (July  21, 
1988), (Exhibit USA -46), paras.  3-9. 
237 United States' first written submission, para.  114. We note that Article  XIV(a) of the GATS, different 
from Article  XX of the GATT  1994, includes a reference to measures "necessary to … maintain public order". In 
footnote 5, this provision further provides that "[t]he public order exception may be invoked only where a 
genuine and sufficiently serious threat is posed to one of the fundamental interests of societ y". 
238 United States' first written submission, para.  114. WT/DS597/R  
 
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  may be reviewed by a panel. Accordingly, for these reasons we do not find this information and 
argumentation  persuasive.   
7.179.   In conclusion, we see  nothing in the negotiating history of the Uruguay Round that is of 
relevance to the interpretive question that we have considered in this section.239  
7.3.9   Other information submitted by the parties or third parties  
7.180.   We have concluded our interpretive exercise under Articles 31, 32 , and 33 of the 
Vienna  Convention . Before turning to the overall conclusion to this section, however , we briefly 
address the role of other information that the parties have submitted acknowledging that it  does not 
qualify under the Vienna  Convention  rules as relevant to the interpretive  issue before us . The 
United  States  in particular, has submitted such  information in support of its reading of 
Article  XXI(b).240 For the most part, t his information concerns cases of invocation of Article  XXI by 
individual GATT contracting parties or WTO Members, or positions taken by other GATT contracting 
parties or WTO M embers in the context of such invocations.241 In addition, the United  States  refers 
to the 1982 Decision of the GATT CONTRACTING PARTIES  concerning the invocation of Article  XXI.242  
7.181.   The United  States  takes the view that a panel is free to take such informat ion into account. 
It argues that the DSU calls on panels to apply the customary rules of interpretation but does not 
otherwise limit the scope of materials that a panel may take into account when making findings in a 
particular dispute.243 With regard to th e examples of invocation of Article  XXI and statements made 
in the context of such invocations, therefore, the United  States  considers that they "can inform or 
support the meaning of Article XXI as interpreted according to the customary rules of public 
international law and the Panel may find it instructive to consider such statements" .244 With regard 
specifically to the 1982 Decision of the GATT CONTRACTING PARTIES  concerning the invocation of 
Article  XXI, the United  States  submits that this decision is a d ecision within the meaning of 
paragraph 1(b)(iv) of the GATT  1994 and Article  XVI:1 of the WTO  Agreement  and that while the 
Panel is not required to take it into account as context, it may do so to the extent relevant to this 
dispute.245 
7.182.   We agree with the United  States  that a panel is free to consider any available information. 
This follows directly from its right to seek information, as set out in Article  13 of the DSU.246 The 
question is for what purpose such information can be used or relied upon. We understand the 
United  States  to argue that it cannot be used or relied upon to arrive at an interpretation, a s that 
exercise is governed by the customary rules of interpretation in international law; but that it may 
be used or relied upon to support or confirm an interpretive result. We agree. As long as such 
 
239 We note that the United States also refers to the DSU negotiations, and in particular to a proposal by 
Nicaragua, that aimed at achieving an outcome so that a party to a dispute would not be able to oppose 
examination of the applicability of GATT provisio ns and compliance with them (United States' first written 
submission, paras.  118-121). As the United States points out there was no discussion on this proposal, which 
was not retained. Therefore, we find it impossible to draw any relevant conclusions from it. 
240 United States' first written submission, paras.  189-214.  
241 The United States lists the following: statement by Ghana in the context of Portugal's accession in 
1961; statements made in the context of Egypt's accession in 1970; statements made in the context of the 
Falkland/Malvinas  conflict in 1982; statements made in the context of the GATT dispute United States – Trade 
Measures affecting Nicaragua  in 1985; a reference to Article  XXI in Switzerland's Trade Policy Review in 1996 ; 
and statements made i n the context of the dispute Nicaragua – Measures affecting Imports from Honduras and 
Colombia in 2000 .     
242 United States' first written submission, para.  201; and Decision Concerning Article  XXI Of The 
General Agreement, L/5426 (Dec . 2, 1982), (Exhibit USA-52). 
243 United States' response to Panel question No.  101, paras.  117 and 121.  
244 United States' response to Panel question No.  101, para.  121. 
245 United States' response to Panel question No.  61, para.  255. 
246 See Appellate  Body Report, US – Shrimp , para.  104 (where the Appellate  Body observed the 
comprehensive nature of a panel's authority to seek information and technical advice and noted that "a panel 
also has the authority to accept or reject any information or advice which it may have sought and received, or 
to make some other app ropriate disposition thereof. It is particularly within the province and the authority of a 
panel to determine the need for information and advice in a specific case, to ascertain the acceptability and 
relevancy of information or advice received, and to de cide what weight to ascribe to that information or advice 
or to conclude that no weight at all should be given to what has been received "). WT/DS597/R  
 
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  information is not used to determine the meaning of th e treaty text, we do not understand the 
Vienna  Convention  rules on treaty interpretation to somehow prohibit referring to it.247   
7.183.   Viewed from this perspective, however, it is also clear that referring to such information is 
not necessary and indeed may be altogether futile  – as it would be in the present case regarding 
any statements made by individual Members on Article  XXI(b). Those  statements  referred to by the 
United  States  represent only part of the debate which, when examined more comprehensively, 
constituted a "mixed bag" of views among the Members on how to read Article  XXI.248 This suggests 
that there was (or is) no consensus among Members on how to interpret Article  XXI, which may be 
important background to this dispute. However, it does not relieve  us of our duty to interpret the 
meaning of Article  XXI(b), nor does it impact on the outcome of that interpretation.  
7.184.   As regard s the 1982 Decision, we note that this decision provides for "procedural guidelines" 
for the application of Article  XXI while ex plicitly acknowledging the absence of any formal 
interpretation of that provision.249 As is clear, therefore, the decision does not address the substance 
of Article  XXI(b).  The United  States  finds support for its own reading that Article  XXI(b) is entirely  
self-judging in certain language in the preamble of this decision.250 Even if the U nited States ' reading 
did have a basis in the text (which , we have found,  it does not), the preambular language in question 
is of no relevance as it neither confirm s nor contradicts  any reading  of Article  XXI(b)  (including our 
own). As the decision is not relevant to the interpretive question at issue, we can leave open whether 
it is a decision within the meaning of paragraph 1(b)(iv) of the GATT  1994 or Article  XVI:1 of the 
WTO Agreement , as argued by the United  States .  
7.3.10   Overall conclusion on the interpretive question at issue  
7.185.   We find that Article  XXI(b) is not entirely  self-judging insofar as the unilateral determination 
granted to the invoking Member through the phrase "which it considers" in the chapeau  of that 
provision does not extend  to the subparagraphs.  Instead, the subparagraphs are subject to review 
by a panel.   
7.186.   We have, thus, established that there is some scope for review by a panel whe n 
Article  XXI(b) has been invoked. This answers the threshold question that we had set out to address, 
namely whether Article  XXI(b) is self -judging such that it excludes any review by a panel  as argued 
by the United  States .251 As this is not the case, we reject the United  States ' request to  (only)  find 
that the United  States  has invoked its essential security interests and so report to the DSB.    
 
247 We note that the panel in  Russia – Traffic in Transit comprehensively reviewed some of this 
information with a vie w to establishing whether it reflects subsequent practice under Article  31(3)(b). (See 
Panel  Report , Russia – Traffic in Transit , para.  7.80 and para.  1.2 of Appendix).  
248 For examples of statements supporting the view that Article  XXI was partly reviewable , see the 
European  Union 's third -party submission in DS544, ( Exhibit EU -5), paras.  118-126. We also note that none of 
the statements made directly refers to the issue of the role of the subparagraphs.  
249 Its full wording is as follows:  
Considering that the exceptions envisaged in Article  XXI of the General Agreement constitute an 
important element for safeguarding the rights of contracting parties when they consider that 
reasons of security are involved;  
Noting that recourse to Article  XXI could constitute,  in certain circumstances, an element of 
disruption and uncertainty for international trade and affect benefits accruing to contracting 
parties under the General Agreement;  
Recognizing that in taking action in terms of the exceptions provided in Article  XXI of the General 
Agreement, contracting parties should take into consideration the interests of third parties which 
may be affected;  
That until such time as the CONTRACTING PARTIES may decide to make a formal interpretation 
of Article  XXI it is appropria te to set procedural guidelines for its application;  
The CONTRACTING PARTIES decide that:  
1. Subject to the exception in Article  XXI:a, contracting parties should be informed to the fullest 
extent possible of trade measures taken under Article  XXI.  
2. When action is taken under Article  XXI, all contracting parties affected by such action retain 
their full rights under the General Agreement.  
3. The Council may be requested to give further consideration to this matter in due course.  
250 The United States refers to recitals 1 and 3, see fn  249 above.  
251 We recall that reviewability of Article XXI(b) depend s on two questions, namely (i)  whether the 
clause is only partly self -judging and (ii)  whether self -judging means that review by a panel is altogether 
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  7.187.   The next question is how to proce ed from here. We note that the panel in Russia – Traffic in 
Transit  review ed the action  under Article  XXI(b) without first establishing whether there was any 
breach under the covered agreements. Th at panel took the view that an evaluation of the challenged 
measures under Article  XXI(b) did not necessitate a prior determination that the y would be WTO -
inconsistent. Th e panel based this view on two inter -related considerations, namely that: (1) the 
circumstances in Article  XXI(b)(iii) "involve a fund amental change of circumstances which radically 
alters the factual matrix in which the WTO -consistency of the measure at issue is to be evaluated"; 
and (2) there is "no need to determine the extent of the deviation of the challenged measure from 
the prescr ibed norm in order to evaluate the necessity of the measure."252 We further note that  the 
panel in Saudi Arabia – IPRs followed what it considered to be "common practice" , namely to begin 
with an examination of the claims of inconsistency with the relevant covered agreement, to be 
followed, if any such inconsistency were found to exist, with an assessment of whether the aspect(s) 
of the measure(s) at issue would be covered by one or more exceptions.253  
7.188.    The United  States  does not take a specific position reg arding these two choices consistent 
with its own view that a panel should not carry out any review whatsoever. Hong Kong, China254 and 
certain third parties255, for their part , take the view that  a panel is legally mandated to first establish  
whether  the inv oking Member has breached its obligations  under the covered agreements before 
proceeding to a review of the exception in Article  XXI(b).   
7.189.   We share H ong Kong, China 's and the third parties ' view. We consider, quite simply, that 
where there is no breach, there is nothing to justify. Moreover, a s a justification under any available 
exception comes with a certain burden, even if minimal, we do not see how such a burden should 
be imposed on a Me mber even in the absence of any  finding of  breach of an obligation. That breach, 
therefore, must first be established.   
7.190.   On this basis we proceed to examining whether the United  States  has breached its obligation  
under Article  IX:1 of the GATT  1994, which is the claim we have identified to be the most specific to 
the measure at issue.256 If we find a breach of that provision, we turn to the exception in 
Article  XXI(b) and examine what the review of that exception entails.  
7.4  Whether the origin marking requireme nt is inconsistent with Article  IX:1 of the 
GATT  1994  
7.4.1   Introduction  
7.191.   Hong Kong, China claims that the origin marking requirement is inconsistent with Article  IX:1 
because it leads to goods produced in Hong Kong, China  having to  be marked as originating in Ch ina, 
a different WTO Member , and thus treats those goods less favourably than like goods of other 
countries.257 The United  States  argues that Hong Kong, China fails to establish that the origin 
marking requirement accords "different treatment, much less 'le ss favorable' treatment" to products 
of Hong Kong, China, inconsistent with Article  IX:1.258  
7.192.   Article  IX of the GATT  1994 provides, in relevant part:  
 
excluded (see para.  7.23 above). In this section we addressed the first question. Given that the conclusion to 
this first question answers the threshold issue of whether there is any reviewability, we do not need to address 
the second question at this ju ncture of our analysis. The second question will become relevant if and when a 
review under Article  XXI(b)  is due .  
252 Panel Report , Russia – Traffic in Transit , para.  7.108.  
253 Panel  Report , Saudi Arabia – IPRs, para.  7.6. The panel, however, noted that a "panel's choice on 
how to order and structure its analysis will often reflect, expressly or implicitly, one or more particular 
circumstances of the case at hand" (ibid.  para. 7.3).  
254 Hong Kong, China's response to panel question No.  1, para.  4. 
255 Canada's  third-party submission, para.  13; European  Union 's third -party statement, paras.  7-8; 
Norway's third -party statement, para.  21; and Switzerland's third -party submission, para.  49. 
256 See paras . 7.13-7.14 above.  
257 Hong Kong, China's second written submission, para.  123.  
258 United States' second written submission, para.  191. The United States provides its views "without 
prejudice to the U.S. position regarding Article  XXI(b)" ( Ibid. para. 153).  WT/DS597/R  
 
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  Marks of Origin  
1. Each Member shall accord to the products of the territories of other Members  
treatment with regard to marking requirements no less favourable than the treatment 
accorded to like products of any third country.  
7.193.   We need to assess the following three questions with respec t to the origin marking 
requirement: (a)  whether it is a marking requirement that falls within the scope of Article  IX:1; 
(b) whether the products of Hong Kong, China are like products compared to  those of any third 
country; and (c)  whether the treatment a ccorded to the products of Hong Kong, China is less 
favourable than the treatment accorded to the like products of any third country. Before addressing 
each of these questions in turn, we set out some relevant factual background on the origin marking 
requirement.  
7.4.2   Factual background on the measure at issue  
7.194.   We recall that the measure at issue consists of a requirement that imported goods produced 
in Hong Kong , China  be marked to indicate that their origin is "China" and may no longer be marked 
to indicate that their origin is "Hong Kong" .259 The 11  August Federal Register Notice states that this 
requirement is "in light of the President's Executive Order on Hong Kong Normalization, issued on 
July 14, 2020, susp ending the application of section 201(a) of the United  States -Hong Kong Policy 
Act of 1992  (1992 Hong Kong Policy Act)  to the marking statute, section 304 of the Tariff Act of 
1930, with respect to imported goods produced in Hong Kong".260  
7.195.   Section  304(a) o f the Tariff Act of 1930 requires that every article of foreign origin imported 
into the United  States  be marked "in such manner as to indicate to an ultimate purchaser in the 
United States the English name of the country of origin of the article" .261 Part 134 of Title 19 of the 
Code of Federal Regulations, which sets forth regulations implementing the country of origin marking 
requirements, defines "country of origin" as "the country of manufacture, production, or growth of 
any article of foreign origi n entering the United  States " and notes that "[f]urther work or material 
added to an article in another country must effect a substantial transformation in order to render 
such other country the 'country of origin' within the meaning of this part".262 
7.196.   Prior to 2020, for goods produced in Hong Kong, China, USCBP accepted marks referring to 
"Hong Kong"  without any additional requirement .263 This practice appears to have been based on 
the combined operation of two instruments. First, Section  201(a) of the 1992  Hong Kong Policy Act  
provides that, after the resumption of sovereignty over Hong Kong, China by China on 1  July 1997, 
"the laws of the United  States  shall continue to apply with respect to Hong Kong … in the same 
manner as the laws of the United  States  were applied with respect to Hong Kong before such date 
unless otherwise expressly provided by law o r by Executive Order under section 202" .264 Second,  a 
Federal Register Notice of 5  June 1997 specified that "goods produced in Hong Kong which are 
entered or wi thdrawn from warehouse for consumption into the U.S. on or after July 1, 1997, shall 
continue to be marked to indicate that their origin is 'Hong Kong'".265 Section  202 of the 1992 Hong 
 
259 In its panel request, Hong Kong, China provides a list of five legal instrume nts and specifies that 
"[t]he measures at issue include, but are not limited to" those instruments.  In its first written submission, 
Hong Kong, China explains that these five legal instruments "interacted with each other as described above to 
create the pr esent circumstance in which the United States: (i)  concludes, for the purpose of its origin marking 
requirement, that the People's Republic of China is the country of origin of goods manufactured or produced in 
the customs territory of Hong Kong, China; an d (ii) requires goods imported from the customs territory of 
Hong Kong, China to be marked with this country of origin determination." (Hong Kong, China's first written 
submission, para.  20). 
260 11 August Federal Register Notice, (Exhibits USA -7, HKG -10).  
261 Section  304(a) of the Tariff Act of 1930, 19  U.S.C. § 1304, (Exhibits USA -10, HKG -2).  
262 19 C.F.R. Part 134 , §134.1, (Exhibit HKG -3). The term "country" is defined as "the political entity 
known as a nation. Colonies, possessions, or protectorates outsid e the boundaries of the mother country are 
considered separate countries" ( Ibid.).  
263 USCBP, Ruling Letter N306315  Re: The Country of Origin Marking of Body Spray Mists, 
(2 October  2019), (Exhibit HKG -7) and USCBP, Ruling Letter N308366  Re: The country of origin and marking 
of an electronic table top score board from Hong Kong, (8 January  2020), (Exhibit  HKG-8). 
264 United States -Hong Kong Policy Act of 1992, Pub . L. 102 -383, codified at 22 U.S.C. §5701-5732, 
(1992 Hong Kong Policy Act ), (Exhibits USA -3, HKG -14).  
265 62 Fed. Reg. 30927  (5 June 1995), (Exhibit HKG -6), p. 3092 8.  WT/DS597/R  
 
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  Kong Policy Act refers to this as "treatment … different from that acco rded the People's Republic of 
China".266  
7.197.   As noted above, o n 14 July 2020, the US president issued Executive Order 13936 on 
Hong Kong Normalization (Executive Order 13936) .267 In that Executive Order 13936 , the president 
determined that Hong Kong, China is no longer "sufficiently autonomous " to justify differential 
treatment in relation to China and suspended  the application of Section  201(a) of the 1992 Hong 
Kong Policy Act to certain statutes, including Section  304 of the Tariff Ac t of 1930.268 As a result, 
the 11  August Federal Register Notice notified the public that goods produced in Hong Kong, China 
"must  be marked to indicate that their origin is 'China' for the purposes of 19  U.S.C. 1304".269  
7.4.3   Whether the challenged measure is a  marking requirement under Article  IX:1 
7.198.   Article  IX of the GATT  1994 is entitled " Marks of Origin ". Article  IX:1 governs the treatment 
of products "with regard to marking requirements". T he ordinary meaning of "mark" encompasses 
"[a] device, stamp, brand, label, inscription, etc., on an article  … identifying it or its holder, or 
indicating ownership, origin, quality, etc.".270 Requirements to mark goods with an origin mark, such 
as the origin marking requirement at issue in this dispute, fall squarely  within the scope of 
Article  IX:1. The parties have not contested this.271  
7.199.   Therefore, we find that the challenged measure is a "marking requirement " that falls within 
the scope of Article  IX:1.  
7.4.4   Like products  
7.200.   We recall that the origin marking requirement at issue applies to "goods produced in 
Hong Kong" .272 We also recall that , pursuant to Section  304 of the Tariff Act of 1930,  the 
United  States  requires all imported goods (i.e. goods produced in any country and then imported 
into the United  States ) to be m arked in such manner as to indicate to an ultimate purchaser in the 
United  States  the English name of their country of origin. The two groups of products the treatment 
of which we need to compare are , therefore : (a) products for which the United  States  determine s 
that they are produced in Hong Kong, China ; and ( b) products for which the United  States  
determine s that they are produced in any third country.  
7.201.   In prior cases, where challenged measures have distinguished between products solely on 
the basis of origin, panels have suggested that the likeness of the products so distinguished could 
be presumed.273 The rationale behind this presumption of likeness is that where a measure provides 
 
266 1992 Hong Kong Policy Act, (Exhibits USA -3, HKG -14), Section  202. We note that the "differential" 
nature of this treatment appears to also allow US authorities to consider Hong Kong, China as a potential 
"country of origin" within the meaning of the definitions in §134.1 of 19 C.F.R. Part  134, (Exhibit  HKG-3)). 
267 Executive Order on Hong Kong Normalization  of July  14, 2020 , 85 Fed. Reg. 43413 (17 July 2020) , 
(Executive Order 13936),  (Exhibits USA-2, HKG-13), p. 43413 . 
268 Section  2, Executive Order 13936 , (Exhibits USA -2, HKG -13), p. 4341 4. The president made this 
deter mination pursuant to Section  202(a) of the United States -Hong Kong Policy Act of 1992 , which provides 
that "whenever the President determines that Hong Kong is not sufficiently autonomous to justify treatment 
under a particular law of the United States, or  any provision thereof, different from that accorded the People's 
Republic of China, the President may issue an Executive order suspending the application of section 201(a) to 
such law or provision of law."  
269 11 August Federal Register Notice, (Exhibits USA -7, HKG -10). 
270 Oxford English Dictionary online, definition of "mark": 
https://www.oed.com/view/Entry/114169?rskey=CUyzXR&result=1&isAdvanced =false#eid  (accessed 29 
September 2022). See also  Panel  Report s, Australia – Tobacco Plain Packaging , paras.  7.2999 and 7.3001.  
271 Hong Kong, China's first written submission, para s. 16, 20, and 71 . United States' first written 
submission, para. 22; respons e to Panel question No.  4, paras.  15-17. See also para.  7.14 above.  
272 11 August Federal Register Notice, (Exhibits US A-7, HKG -10). 
273 Most of those cases were raised under Articles I or III of the GATT  1994. See with specific reference 
to Article  I:1, e.g. Panel  Report s, Colombia – Ports of Entry , paras.  7.355 -7.357; US – Poultry (China) , 
paras.  7.426-7.432; Russia – Railway Equipment , paras.  7.898 -7.899 ; and US – Tariff Measures (China) , 
para. 7.83, appealed on 26 October 2020 ; with reference to Article  III:2 of the GATT  1994, e.g. Panel  Report s, 
Argentina – Hides and Leather , paras.  11.168 -11.170; China – Auto Parts , para.  7.216; and Brazil – Taxation , 
paras.  7.134 -7.137; and with reference to Article  III:4 of the GATT  1994, e.g. Panel  Report s, Argentina – 
Import Measures , paras.  6.274 -6.275; Canada – Autos , para.  10.74; Canada – Wheat Exports and Grain 
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  for a distinction based solely  on origin, there will or can be products  that are the same in all respects 
except for origin.274 In these circumstances, an analysis of likeness based on a comparison of specific 
products would be unnecessary . 
7.202.   The origin marking requirement clearly distinguishes between products on the basis of t heir 
origin (Hong Kong, China or not). In addition, the origin marking requirement encompasses trade in 
virtually all goods of Hong Kong, China imported into the United  States .275 Thus, a  product produced  
in Hong Kong, China, identical in all respects to a product produced in any third country  (except for 
its origin ) will be subject to the origin marking requirement, whereas the identical (except for its 
origin) product produced in any third country will not. In other words, the only distinguishing feature  
drawn by the origin marking requirement at issue  between any product of Hong Kong, China, and 
any product of any third country  in terms of applying the origin marking requirement, is origin.  
7.203.   For these re asons, we find that, products produced in Hong Kong, China , which are subject 
to the origin marking requirement, and products produced in any third country , which are not subject 
to the origin marking requirement, can be presumed to be  "like products" with in the meaning of 
Article  IX:1. 
7.4.5   Less favourable treatment  
7.4.5.1   Introduction  
7.204.   Article  IX:1 is an MFN obligation similar to other non -discrimination obligations in the 
GATT  1994.276 It uses the term s "less favourable treatment" which appear in several provisions o f 
the covered agreements277, and which ha ve been extensively interpreted mostly in the context of 
Article  III:4 of the GATT  1994.278 We consider that these interpretations of the same term s – which 
serve a comparable function of defining the content of a non -discrimination obligation – may provide 
useful guidance for the interpretation of the relevant terms in Article  IX:1.279 
7.205.   As an MFN obligation, Article  IX:1 first requires a comparison bet ween the treatment 
accorded to imported products from different countries280 to ascertain whether there is a difference 
in treatment.  A formal difference in treatment between imported products  from different countries 
is, however,  neither necessary, nor suf ficient to establish that the imported products from the 
complaining party are accorded less favourable treatment than that accorded to like imported 
 
Imports , para.  6.164 and fn  246; China – Publications and Audiovisual Products , paras.  7.975, 7.1446 -7.1447; 
India – Autos , para.  7.174; Thailand – Cigarettes (Philippines) , para.  7.661; Turkey – Rice, paras.  7.214 -
7.216; US – FSC (Article  21.5 – EC), paras.  8.132 -8.135; and Russia – Railway Equipment , paras.  7.919 -
7.921. The Appellate  Body has also applied this approach in the context of the non -discrimination obligations 
contained in the GATS  (Appellate  Body Report, Argentina – Financial Services , paras.  6.36-6.38).  
274 See, i n that sense, Appellate  Body Report, Argentina – Financial Services , para.  6.38.  
275 The origin marking requirement does not apply to products which are "excepted from marking" ( see 
11 August Federal Register Notice, (Exhibits USA -7, HKG -10)). The exemption of certain products from the 
requirements of marking is provided in general terms in section 3 of Section  304(a) of the Tariff Act of 1930 , 
19 U.S.C. § 1304 , (Exhibit USA -10, HKG-2). We understand that the only products exempted from the origin 
marking requirement are those that are exempted pursuant to the general exemption, irrespecti ve of their 
origin.  
276 Other MFN -type obligations are included in Articles I, III:7, IV(b), V:2, V:5, V:6 and XIII:1 ( see 
Appellate  Body Reports, Canada – Autos , para. 82, fn 72; EC – Bananas III , para. 231, fn  138).  
277 See Articles II:1(a), III:4, V:5 and  V:6 of the GATT  1994, Annex  C(1)(a) of the SPS  Agreement ; 
Article  2.1 of the TBT  Agreement ; and Article  11.4 of the TFA.  
278 See, for most recent examples, Panel Reports, US – Renewable Energy , para.  7.241 -7.248 , appealed 
on 15 August 2019 ; Brazil – Taxation , paras.  7.209 -7.213.  
279 We are cognizant that any such guidance must take into account the specific nature of Article  IX:1 as 
an MFN obligation and the context provided by the remaining provisions of the GATT  1994, including the 
immediate context of Article  IX and its title " Marks of Origin". In that sense, we note that Article  III:4 contains 
a national treatment rather than a n MFN obligation. As the Appellate  Body noted in EC – Seal Products , while 
those are "both fundamental non -discrimination ob ligations under the GATT  1994, their points of comparison, 
for the purposes of determining whether a measure discriminates between like products, are not the same" 
(Appellate  Body Report s, EC – Seal Products , para.  5.79).  
280 In that sense, we agree with Hon g Kong, China that "the need to undertake a comparison  is inherent 
in the concepts of national treatment and MFN treatment – in the latter case, the one pertinent here, a 
comparison between the treatment accorded to the products of the complaining Member vis-à-vis the 
treatment accorded to the products of other countries" (Hong Kong, China's comments on the United States' 
response to Panel question No.  83, para.  32, emphasis original ). WT/DS597/R  
 
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  products of any third country.281 The next step is to assess whether the challenged measure accords 
less fa vourable treatment by modif ying the conditions of competition in the relevant market to the 
detriment of the imported products of the complaining party , and thus has a detrimental impact on 
the competitive opportunities for those products versus other impo rted products.282 The parties 
seemingly agree with the elements of this legal standard .283  
7.206.   However, we understand the United  States  to argue that an assessment of less favourable 
treatment , including that  under Article  IX:1, is a holistic examination requiring assessment of "all 
the facts and circumstances, including the terms of the measures, its regulatory objective s, as well 
as the facts and circumstances illuminating such objectives and purposes" .284 We disagree with the 
Unite d States  to the extent that it suggests  that the legal standard of "less favourable treatment"  
under Article  IX:1 includes an inquiry as to whether the detrimental impact is related  to, or can be 
explained by, the regulatory objective pursued by the measur e at issue . Any such inquiry, in the 
context of the GATT 1994, takes place in, and is subject to , the conditions of , the exceptions in the 
GATT  1994.285 
7.207.   Accordingly, we consider that our analysis of the consistency of the origin marking 
requirement with Article  IX:1 must focus on two elements: (a) whether the origin marking 
requirement accords to products of Hong Kong, China treatment that is different from the treatment 
accorded to products of other countries; and (b) if so , whether the origin marking requirement, by 
according such a different treatment , modifies the conditions of competition to  the detriment of 
products of Hong Kong, China. We examin e these two elements  in turn .  
7.4.5.2   Difference in treatment  
7.208.   Hong Kong, China argues that the origin marking requirement accords less favourable 
treatment to goods imported from Hong Kong, China because it results in the fact that these goods 
"may not be marked with the full English name of their actual country of origin"286, contrary to goods 
from any third country. Hong Kong, China describes this less favourable treatment with respect to 
two aspects : (a) "the method of determining the country of origin", because the United  States  
determines that the origin of products manufactured or processed in Hong Kong, China is "China" 
by applying a condition ("sufficient autonomy" from China) that it does not apply to the goods of 
other Members  (difference in treatment with respect to origin determination) ; and (b)  "the required 
 
281 See Appellate  Body Report s, EC – Seal Products , para.  5.101 (referring to Appellate  Body Reports, 
US – Clove Cigarettes , para.  177 (referring to Appellate  Body Report, Korea – Various Measures on Beef , 
para. 137); and Thailand – Cigarettes (Philippines) , para.  128 (referring to Appellate  Body Report, EC – 
Asbestos , para. 100)).  
282 See Appellate  Body Report, Thailand – Cigarettes (Philippines) , para.  128 (referring to 
Appellate  Body Report, Korea – Various Measures on Beef , para.  137).  
283 Hong Kong, China submits that "less favourable treatment in Article  IX of the GAT T 1994 exists 
where a measure modifies the conditions of competition in the relevant market to the detriment of the 
imported products of another Member." (Hong Kong, China's response to Panel question No.  17, para.  60). The 
United States agrees that "Artic le IX:1 is directed to preventing discrimination on the basis of origin" and that 
"a measure does not 'modif[y] the conditions of competition in the relevant market to the detriment of 
imported products,' if the alleged detriment is explained by factors un related to the foreign origin of the 
product." (United States' response to Panel question 17, para.  87 (quoting  Appellate  Body Report, 
Dominican  Republic  – Import and Sale of Cigarettes , para.  96 and referring to Appellate  Body Report, Korea – 
Various Meas ures on  Beef, para.  144 and Panel  Report , Mexico – Taxes on Soft Drinks , para.  8.118)).  
284 United States' response s to Panel question No. 75, para s. 39 and No. 17, para. 87 . See also United 
States' response s to Panel question No . 14, para. 57, No. 74, paras. 25 and 30, and No. 75, para. 4 1 (with 
respect to Article 2.1 of the TBT Agreement) . According to Hong Kong, China, "the reason why the United 
States accords less favourable treatment to the goods of Hong Kong, China … does not change the fact that t he 
United States is acting in violation of its obligation under Article  IX:1." (Hong Kong, China's comments on the 
United States' response to Panel question No.  83, para.  44). 
285 See also the Appellate  Body's reply to  a similar argument raised by the Europe an Union  in the 
context of Article s I:1 and III:4 of the GATT  1994, Appellate  Body Report, EC – Seal Products , paras.  5.92-
5.130 (in particular, para. 5.125) . See also Appellate Body Report, US - Clove Cigarettes , para. 179 and fn  372 
(where the Appellate Body rejected an argument raised by the United States that is similar to the one 
discussed above ) (referring to Appellate Body Report s, Dominican Republic – Import and Sale of Cigarettes , 
para. 96  and Thailand – Cigarettes (Philippine s), para.  134).  We do not consider it necessary to express a view 
as to how th is inquiry is addressed under Article 2.1 of the TBT Agreement. We also do not express a view as 
to whether, and how, the assessment of "less favourable treatment" under Article IX:1 would include an 
examination of other "facts and circumstances" mentioned by the United States.  
286 Hong Kong, China's first written submission, para.  72. WT/DS597/R  
 
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  terminology to indicate that co untry of origin", because, if the United  States  determines that the 
origin of these products is "Hong Kong, China", it prohibits them from being marked with that name  
(difference of treatment with respect to terminology) .287 
7.209.   We understand these  two lines of  argumentation to be based on two alternative scenarios , 
which represent mutually exclusive readings of the facts : either the United  States  determines that 
the origin of the affected products is "China", or the United  States  determines that the origin of the 
affected products is " Hong Kong, China".  For that reason, to address Hong Kong, China's two lines 
of argumentation , we consider it neces sary to examine each of the two alternative scenarios and  
make the relevant factual findings in the process.   
7.4.5.2.1   Whether there is a difference in treatment with respect to origin determination  
7.4.5.2.1.1   Arguments  of the parties288 and the third parties  
7.210.   According to Hong Kong, China , the United  States  determines that, for  the purposes of origin 
marking , China is the "actual country of origin" of goods manufactured or processed in Hong Kong, 
China . This determination is based on the condition that Hong Kon g, China be "sufficient ly 
autonom ous" from China . The United  States  does not apply  such condition  to determine the country 
of origin of the goods of any third country  or other Member.289  
7.211.   Hong Kong, China's argument rests on the assertion that the origin ma rking requirement is 
necessarily based on a determination by the United  States  that goods manufactured or processed in 
Hong Kong, China originate in China . According to Hong Kong, China, this conclusion follows as a 
matter of US law and is confirmed by how the United  States  has interpreted and applied the origin 
marking requirement in practice .290 Under US law , Hong Kong, China argues, origin marking requires 
to mark the imported article "[not] with the name of any country or some  country, bu t specifically 
the country of origin "291 as determined by USCBP.292 Accordingly, a  requirement to mark goods as 
made in  "China " is necessarily based upon a determination that those goods originate in China .293  
7.212.   Hong Kong, China also argues that the origin mar king requirement, by requiring goods  from 
Hong Kong, China  to be marked as made in  "China" , entails a determination in fact that goods 
manufactured or processed in Hong Kong, China originate in China.294 Hong Kong, China considers 
 
287 Hong Kong, China's second written submission, paras.  121 -123. See also Hong Kong, China's 
openi ng statement at the second meeting of the Panel, paras.  19-20.  
288 We note that the parties' arguments on whether the origin marking requirement is inconsistent with 
the United States' MFN obligation are mostly developed with respect to Hong Kong, China's c laims under 
Article  2(d) of the ARO  and Article  2.1 of the TBT  Agreement . Both parties refer to or incorporate those 
arguments when discussing the claim under Article  IX:1. We therefore rely directly on the arguments under the 
ARO and the TBT  Agreement  to the extent relevant to our analysis under Article  IX:1. 
289 Hong Kong, China's second written submission, para.  122. 
290 Hong Kong, China's second written submission, para.  30.  
291 Hong Kong, China's second written submission, para.  32. (emphasis original)  
292 Hong Kong, China's second written submission, paras.  33 and 34.  
293 Hong Kong, China's second written submission, para.  35. Hong Kong, China argues that the 
suspension of Section  201(a) of the 1992 Hong Kong Policy Act as it applies to Section  304 of the Tariff Act of 
1930 required USCBP "to determine that the country of origin of goods manufactured or produced in Hong 
Kong, China is the People's Republic of China for the purpose of the origin marking requirement." (Hong Kong, 
China's first writ ten submission, para.  19). For Hong Kong, China, the legal basis for this determination is to be 
found in the "sufficient autonomy" condition contained in Section  202(a) of the 1992 Hong Kong Policy Act, 
(Exhibits USA -3, HKG -14), as implemented through Exe cutive Order 13936, (Exhibits USA -2, HKG -13) 
(Hong  Kong, China's first written submission, para.  47). Hong Kong, China considers that the determination 
that the goods originate in China is made in the 11 August Federal Register Notice (Hong Kong, China's 
response to Panel question No.  8, para.  17). 
294 Hong Kong, China's second written submission, para.  36. See also Hong Kong, China's second 
written submission, para s. 48 and 50 : "where a Member treats a good in practice as having the origin of a 
particular co untry, that treatment is necessarily based on a determination by that Member that the goods in 
question originate within that particular country.  … Requiring goods to be marked as having an origin of 
Country  B necessarily reflects a determination by the importing Member that the goods have an origin of 
Country  B." WT/DS597/R  
 
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  this to be confirmed by US CBP's rejection , in 2020,  of a request to use "Hong Kong" or "Hong Kong, 
China" as  marks of origin .295   
7.213.   The United  States  disagrees that the application of the origin marking requirement involves 
a determination that the affected products are of origin "China". According to the United  States , the 
requirement as to what marking is acceptable with respect to a particular count ry or territory is 
distinct from the determination that a specific country is the country of origin for marking purposes. 
Moreover, the requirement to indicate a particular country as a country of origin does not necessarily 
involve a prior determination t hat that country is the country of origin.296  
7.214.   For the United  States , neither the 11  August Federal Register Notice nor Executive Order 
13936  determine s that any country is the country of origin with respect to any particular import.297 
The United  States  asserts that there is no separate marking requirement requiring a distinct 
determination that a good is from Hong Kong, China. Rather, the United  States  applies the same 
analysis that would apply to determine the origin of any good from any source.298 The Unit ed States  
explains that this analysis is conducted on a case -by-case basis, using the US " normal rules of 
origin ", and that if, as a result  of this analysis , a finished good is "a product of Hong Kong, China ", 
that product would be marked with "China" .299 According to the United  States , the origin marking 
requirement involves only the "terminology used for marking goods produced in the geographic area 
Hong Kong, China".300 
7.215.   Among the third parties,  China  agrees with Hong Kong, China that the United  States  
determin es that imported goods manufactured or produced in Hong Kong, China have an origin of 
the People's Republic of China .301 Canada, the European  Union , and Japan  emphasize the difference 
between the application of domestic rules of origin to determine  the country of origin of a product 
and the requirement to mark this origin on the product .302 
7.4.5.2.1.2   Panel's assessment  
7.216.   Hong Kong, China 's argument  that the origin marking requirement accords less favourable 
treatment in respect of  the method by which  the United  States  determine s the country of origin of 
goods produced in Hong Kong, China is based on the premise that the United  States  determines the 
origin of these products to be "China" (and not "Hong Kong, China"). We will therefore begin our 
analysis by assess ing if that premise is correct, from a factual perspective.  
7.217.   It is undisputed that the origin marking requirement (a) applies to a set of products identified 
by the common trait of being "goods produced in Hong Kong"303; and (b) requires  that these products 
be marked "to indicate that their origin is 'China' for the purposes of 19  U.S.C. 1304".304  
7.218.   The parties disagree whether this factual situation amounts to a determination by the 
United  States  that the products subject to the origin marking requirement are of "Hong Kong, China" 
or of "China" origin. The parties' disagreement appears to stem from their differing views on whether  
the requirement to use a certain mark  of origin  (in this case, the mark "China") is indicative of the 
origin determin ed by US authorities . Hong Kong, China argues that "the origin mark required by an 
importing Member indicates that Member's determination concerning the country of origin of the 
 
295 Hong Kong, China's opening statement at the second meeting of the Panel, paras.  15-16 (referring to 
Information Letter dated 8  October  2020 from USCBP  to Ms Brenda A. Jaco bs, Re: Country of origin marking of 
goods produced in Hong Kong, HQ H313080 , (8 October  2020 USCBP Letter) , (Exhibit HKG -17)). See also 
response to Panel question No.  8, para.  19; second written submission, para s. 39-44; comments on the United 
States' res ponse to Panel question No.  83, para.  35. 
296 United States' response to Panel question No.  5, paras.  18-19. 
297 United States' response to Panel question No.  5, para.  20; second written submission, paras.  164-
165. 
298 United States' response to Panel question N o. 4, para.  16. 
299 United States' response to Panel question No.  4, para.  16. 
300 United States' response to Panel question  9 para. 38.  
301 China's third -party submission, para.  9.  
302 Canada's third -party response to Panel question No.  1, paras.  1-2. European  Union 's third -party 
submission, paras.  45-46; response to Panel question No.  2, para.  5. Japan's third -party response to Panel 
question No.  1 to 6, para.  6. See also fn  326 below.  
303 11 August Federal Register Notice, (Exhibits USA -7, HKG -10). 
304 11 August Federal Register Notice, (Exhibits USA-7, HKG-10). WT/DS597/R  
 
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  good".305 The United  States  argues that "the decision as to the name with which a good must be 
marked is distinct from a determination as to in what geographic area a good was produced, and 
the rules applied to make that determination".306  
7.219.   We consider that the determination of the origin of a product is distinct from, and should not 
be conflated with, the trade policy instrument that makes use of this origin  determination .307 In 
other words, as the United  States  and several third parties emph asize, the determination that a 
specific country is the country of origin for marking purposes is distinct from the requirement to use 
a mark of origin  on imported products .308 The determination of origin is the result of the application 
of a Member's origi n criteria , which leads to "a conclusion as to the country from which the goods 
are considered to originate"309 and allows, on that basis, to "specify to which treatment [a] good will 
be subjected because of the country it stems from" .310 Origin is used for the implementation of trade 
policy instruments of various types, including origin marking requirements.  
7.220.   The distinction between origin determination and the trade  instrument that makes use of 
this origin determination is complicated in the case of origin marking requirements, because these 
requirements by their nature are intended to indicate the origin of a product.311 In that sense, a 
requirement to use the mark of origin "China" could be perceived by purchasers as an indication that 
the US authorities ha ve determined China to be the product's country of origin.312 Nevertheless , we 
do not consider that this should result in a conflation between origin determination and an origin 
marking requirement, which is a trade policy  instrument , in the application of which the  origin 
determination  is used.313  
7.221.   We, therefore, turn to the question of what is the origin determination that the United  States  
uses to apply the origin marking requirement at issue. For the purposes of origin marking, the 
United  States considers as the country of origin of a product the country in which this product was 
manufactured, produced, grown, or substantially transformed. Under US law, only one country  of 
origin can be determined.314 The United  States  explains that to determ ine whether a product is a 
"product of Hong Kong, China", it applies the same analysis that would apply to determine the origin 
of any good from any source .315 We understand this to mean that to establish  whether a product 
would be subject to the origin mar king requirement, the United  States  uses its "normal rules of 
 
305 Hong Kong, China's first written submission, para.  24.  
306 United States' second written submission, para.  165. 
307 This also follows from the definition of rules of origin in Article  1 of the ARO, r eferring to rules 
"applied … to determine the country of origin of goods", which are then "used … in the application of" various 
trade policy instruments, including origin marking.  
308 See United States' response to Panel question No.  5, para.  18 and No. 68, para.  10. Canada's third -
party response to Panel question No.  2, para.  3; European  Union 's third -party response to Panel question 
No. 1, para.  2.  
309 Canada's third -party response to Panel question No.  2, para.  3.  
310 European  Union 's third -party response to Panel question No.  2, para.  5.  
311 This is also noted by some third parties. Canada remarks that WTO Members use their rules of origin 
to determine a country of origin for a particular good, "which is then used by producers to satisfy a Member's 
origin m arking requirements" (Canada's third -party response to Panel question No.  1, para.  1). The 
European  Union  similarly notes that the origin marking "must reflect origin in accordance with said 
determination" (European  Union 's third -party response to Panel qu estion No.  1, para.  1).  
312 This is particularly relevant in light of a response provided by USCBP to a request whether different 
markings identifying both Hong Kong, China and China would be acceptable for goods produced in Hong Kong 
(8 October  2020 USCBP Letter, (Exhibit HKG -17)). The examples of markings suggested by the request were: 
"Made in China (Hong Kong)", "Made in Hong Kong (China)", "Made in Hong Kong, China", "Made in Hong Kong 
(CN)", "Made in Hong Kong – China", "Made in China – Hong Kon g", "Made in CN (Hong Kong)", "Made in CN -
Hong Kong" and "China (Made in Hong Kong)". According to USCBP, the use of such marks may "mislead or 
deceive the ultimate purchaser as to the actual country of origin of the article".  
313 In that sense, we agree wit h the European  Union  that Article  IX:1 "contains an MFN obligation with 
regard to origin marking requirements" and that "[b]eyond this, Article  IX:1 GATT  1994 does not impose any 
particular disciplines on the content of the rules that are applied to determ ine the country of origin for the 
purpose of origin marking." (European  Union 's third -party response to Panel question No.  13, para.  41). 
314 This stems from the use of the article "the" and the term "country of origin" in the singular, both in 
Section  304(a ) of the Tariff Act of 1930, 19  U.S.C. § 1304, (Exhibits USA -10, HKG -2) and in §134.1 of 19 
C.F.R. Part 134 , (Exhibit HKG -3). As indicated in a USCBP ruling, the inclusion of more than one mark of origin 
"adds to the potential confusion of the ultimate pur chaser, since he would not know which statement of 
article's country of origin is accurate". (USCBP Ruling Letter HQ 731701  Re: Country of Origin Marking of 
Children's  Computer Games (26 January  1990), (Exhibit HKG -4)).  
315 United States' response s to Panel  question No.  4, para.  16 and No.  18, para.  92. See also second 
written submission, para.  194.  WT/DS597/R  
 
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  origin" to determine whether that product was manufactured, produced, grown , or substantially 
transformed  in Hong Kong, China.  
7.222.   We note a certain level of ambiguity in the specific legal charact erizations  of that process  
under US law. It remains unclear to us whether the process of determining that the products subject 
to the origin marking requirement are manufactured, produced, grown , or substantially transformed 
in Hong Kong, China, is charact erized as a determination  of country of origin  under US law. It is our 
understanding that, due to the suspension of differential treatment for origin marking, as described 
above316, it may be impossible for US authorities to determine that Hong Kong, China is a country 
of origin for origin marking purposes  under Section  304.317 It is in this context that USCBP, referring 
to "the new policy that was specified in the Executive Order and reiterated in the Federal Register 
Notice", states that " [t]he reference to  Hong Kong under the current policy may mislead or deceive 
the ultimate purchaser as to the actual country of origin of the article and, therefore, is not 
acceptable for the purposes of 19  U.S.C. § 130 ".318 
7.223.   We understand the complexity of this situation to be related to the status of Hong Kong, 
China as both a WTO Member in its own right (as a separate customs territory, different from 
China)319 and "an inalienable part of the People's Republic of China"320, and to the United  States ' 
assessment that "Hong Kong … is no longer sufficiently autonomous to justify differential treatment 
in relation to the People's Republic of China" under certain US laws and provisions thereof.321 We 
note, in that respect, that the Un ited States  refers to its determinations that goods have been 
manufactured, produced, grown, or substantially transformed in "the geographic region of Hong 
Kong, China"322 or "the area of Hong Kong, China".323  
7.224.   Even if the legal characterization of that proc ess under US law is ambiguous, it remains a 
fact that the United  States  uses its normal rules of origin to determine that  the products were 
manufactured, produced, grown , or substantially transformed  in Hong Kong, China , so as to apply 
the origin marking r equirement at issue.324 We note that Hong Kong, China is a WTO Member in its 
own right, separately from China.325 Furthermore, w e understand that any disagreement between 
the parties on the consistency of the origin marking requirement with Article  IX:1 does  not extend 
to a disagreement as to ( a) the status of Hong Kong, China as a separate WTO Member and a 
 
316 See para.  7.196  above.  
317 In this context, we note that the United States confirms that it continues to treat goods 
manufactured, produced, or substantially transformed, in Hong Kong, China, as goods originat ing in Hong 
Kong, China, for the purposes of determining the applicable tariff rate, for the purposes of assessing ordinary 
customs duties, or temporary or additional duties, provided for in the US Harmonized Tariff Schedule, or for 
the purposes of Outward  Processing Arrangements. Entry summary procedures have also not changed. (United 
States' response to Panel question No.  3, para.  12, referring to USCBP, Frequently Asked Questions – Guidance 
on Marking of Goods of Hong Kong – Executive Order 13936  (last modified 6  October  2020), (USCBP Guidance 
on Marking of Goods of HKG – Executive Order 13936) , (Exhibit HKG -12)). Furthermore, we note that in 
Exhibit HKG -12, in a response that USCBP provided to a question on the tariff treatment of goods from Hong 
Kong, C hina, it is observed that "goods that are products of Hong Kong should continue to report International 
Organization for Standardization (ISO) country code 'HK' as the country of origin when required".  
318 8 October  2020 USCBP Letter, (Exhibit HKG -17), p. 3.   
319 Pursuant to the first explanatory note to the Marrakesh Agreement Establishing the World Trade 
Organization (WTO  Agreement ), "[t]he terms 'country' or 'countries' as used in this Agreement and the 
Multilateral Trade Agreements are to be understood to i nclude any separate customs territory Member of the 
WTO."   
320 Hong Kong, China's first written submission, para.  3. The United States refers to Hong Kong, China 
as a "Chinese city" (United States' opening statement at the second meeting of the Panel, para.  74).  
321 Executive Order 13936, (Exhibits USA -2, HKG -13). 
322 United States' response to Panel question No.  7, para.  25.  
323 United States' second written submission, para.  165. 
324 We understand Hong Kong, China 's description of the operation of the origin marking requirement to 
also reflect a two -step process: (a) an identification of " goods manufactured or produced in the separate 
customs territory of Hong Kong, China"; and (b) a determination that these goods have an origin of China, and 
that they should be marked to indicate that their origin is China. ( see Hong Kong, China's second written 
submission, paras.  42-43). Therefore, even under Hong Kong, China's theory of how the origin marking 
requirement operates, the measure appl ies specifically to a set of products that the United States determines 
to be "goods of Hong Kong, China" (i.e. in the first step).  
325 The United States itself recognizes the status of Hong Kong, China as a separate WTO Member. This 
is stated in Section  102(3) of the 1992 Hong Kong Policy Act, (Exhibit USA -3, HKG -14), as confirmed in the 
2021 Hong Kong Policy Act Report (March  31, 2021) (2021 H ong Kong  Policy Act Report), (Exhibit USA -6), 
p. 12. WT/DS597/R  
 
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  "country" within the meaning of the  WTO Agreement  and the covered agreements; and ( b) the 
territorial boundaries of Hong Kong, China.326  
7.225.   For these reasons, we find that, to apply the origin marking requirement to a set of products 
that it has determined have been manufactured, produced, grown, or substantially transformed in 
Hong Kong, China, the United  States  first determines that the orig in of these products is "Hong 
Kong, China".  
7.226.   To sum up, Hong Kong, China's argument that the origin marking requirement accords less 
favourable treatment in respect of  the method by which the United  States  determine s the country 
of origin of goods produced  in Hong Kong, China is based on the premise that the United  States  
determines the origin of these products to be "China" (and not "Hong Kong, China"). We have found 
that that premise is incorrect.  Therefore, we find that there is no difference in treatmen t with respect 
to origin determination.327 We, therefore, turn to examin ing Hong Kong, China's second argument, 
that products of Hong Kong, China are accorded different treatment in respect of  the required 
terminology to indicate their country of origin. This argument is based on the premise which we have 
found to be factually co rrect, namely that the United  States  determines the origin of products of 
Hong Kong, China to be Hong Kong, China.328  
7.4.5.2.2   Whether there is a difference in treatment with respect to terminology  
7.4.5.2.2.1   Arguments  of the parties and the third parties  
7.227.   According to Hong K ong, China, the origin marking requirement draws a " de jure distinction " 
between goods imported from Hong Kong, China and goods originating in other Members  because  
goods of Hong Kong, China may not be marked with the name of the country of origin in which  they 
were produced, whereas goods from all other countries must be marked with the full English name 
of the ir country of manufacture, production, or growth.329  
7.228.   The United  States  argues that marks of origin , by their nature make distinctions on the basis 
of origin .330 Furthermore, t he United  States  submits  that Article  IX:1 does not require a Member to 
use a particular mark to identify a country .331 Accordingly, for the United  States  the fact that goods 
are marked with  country of origin  "China " simply reflects that all imports must be marked using the 
terminology determined by the United  States .332 The United  States  asserts, thus, that it requires 
goods of Hong Kong, China to be "marked with 'the full English name' of the ir country of origin as 
determined under U.S. law" just as it does for goods of other sources .333 According to the 
United  States , Hong Kong, China takes issue with the fact that the goods are marked with the name 
 
326 Hong Kong, China's response to Panel question No.  9, para.  26 and United States' response to Panel 
question No.  9, para.  38. We also note the following views of Canada and the European  Union . The 
European  Union  observes  that "[n]othing in the WTO  Agreement  suggests that the Members intended it to 
displace the existi ng arrangements in public international law on [public international law disputes of a 
territorial or boundary nature ]." (European  Union 's response to Panel question No.  3, para.  8). Canada argues 
that "while Hong Kong is included within the definition of 'country' as a separate customs territory, the 
definition does not preclude a Member from considering the relationship between a separate customs territory 
and the country with which it is associated in determining what constitutes a 'country ' for the  purposes of 
identifying the country of origin. Rather, in Canada's view, this is a determination that is firmly within the right 
of WTO Members to make." (Canada's third -party statement, para.  6). While  taking note of these points, we 
consider th at the dispute before us does not concern the status of Hong Kong, China as a separate WTO 
Member while also being a part of China . 
327 In light of this finding, we do not need to decide, and therefore can leave open, the question whether 
a potential differe nce in treatment with respect to origin determination could amount to a difference in 
treatment with respect to marking requirements under Article  IX:1.  
328 We note that Hong Kong, China's arguments that the origin marking requirement is inconsistent with 
the ARO are based on the factual premise that the United States determines that the products subject to the 
origin marking requirement originate in China. Our finding that the United States determines their origin to be 
Hong Kong, China  means that the factu al basis for contending that the present dispute involves the application 
of "rules of origin" within the meaning of Article  1 of the ARO is incorrect.  
329Hong Kong, China's  second written submission, paras.  120-121; comments on the United States' 
response to Panel question 83, para.  43.  
330 United States' response to Panel question 83, para.  66. 
331 United States' response to Panel question 83, para.  67. See also second written submission, 
para. 200. 
332 United States' response to Panel question 68, para.  7. 
333 United States' response to Panel question 83, para.  69. WT/DS597/R  
 
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  "China", but "that does not mean that such m arking is a breach of the WTO  Agreement , or that 
'China' may not be the English name for marking purposes".334 
7.4.5.2.2.2   Panel's assessment  
7.229.   We begin by noting that the United  States  requires all imported goods to be marked in such 
manner as to indicate to an ultimat e purchaser in the United  States  the English name of their country 
of origin. We understand that when the United  States  determines that a product  has been 
manufactured, produced, grown , or substantially transformed  in a specific country (i.e. the "country 
of origin" as defined in Part 134 of title 19 of the Code of Federal Regulations335), it require s that 
the mark of origin indicate to the ultimate purchaser the name of that country of origin . US law, 
thus, requires correspondence between the origin as determined by the United  States  and the origin 
indicated on the mark.  
7.230.   We understand the United  States  to argue that the treatment it accords to products of Hong 
Kong, China is not different from the treatment it accords  to products of any third country. The 
United  States ' arguments on this point stem from its assertion that the origin marking requirement 
involves only the "terminology used for marking goods produced in the geographic area Hong Kong, 
China".336 According t o the United  States , the fact that these goods are marked with "China" simply 
reflects the fact that all imports must be marked using the terminology determined under US law .337 
On the basis of that assertion, we understand that the United  States  develop s two arguments: first, 
that origin marks by definition use different terms to indicate different countries, and therefore 
involve a certain level of difference that cannot be equated to a difference in treatment for the 
purposes of a non -discrimination provi sion such as Article  IX; and second, that origin marks reflect 
a name that the adopting Member has chosen to associate with a certain area, and, in the present 
case, the United  States  has chosen to associate Hong Kong, China with the name "China".  
7.231.   We agre e with the United  States  that a measure disciplined under Article  IX, by its nature, 
"makes distinctions on the basis of origin" .338 Given the specific nature of marks of origin , which use 
different names to indicate different countries of origin , we consid er that a purely formal distinction 
between products originating in different countries does not automatically mean that those two 
products are accorded different treatment.  In other words, pursuant to an origin marking 
requirement , products originating in  country A would be marked with a mark of origin that is different 
from that required for products originating in country B. However,  Hong Kong, China does not take 
issue with its products not being marked with the same origin mark as products from any third 
country. Rather, we understand Hong Kong, China's concern to be that while the products of any 
third country are required (and ther efore allowed) to be marked with a mark indicating the name of 
that country, products of Hong Kong, China are not allowed to be marked with a mark indicating the 
name "Hong Kong, China" (or any iteration thereof), but are required to be marked with a mark of 
origin  indicating the name of another WTO Member (China).  
7.232.   This takes us to the second argument raised by the United  States  – that the treatment it 
accords to products of Hong Kong, China is not different from the treatment it accords to products 
of any  third country , because the United  States  has chosen the name "China" to be associated with 
the region of Hong Kong, China.339 According to the United  States , imports from Hong Kong, China , 
 
334 United States' second written submission, para.  198.  
335 19 C.F.R. Part 134 , (Exhibit  HKG-3). 
336 United States' response to Panel question 9 , para. 38. 
337 United States' response to Panel question No.  68, para.  7. 
338 United States' response s to Panel question  No 68, para.  9, and  No. 83, paras.  66 and 69; second 
written submission, para.  180; and opening statement at the second meeting of the Panel , para.  65. However, 
we do not agree with the United States to the extent that it appears to argue that, for that reason, the 
requirement to indicate a specific name on the origin mark is necessarily not subject to the disciplines of 
Article  IX:1. The Unit ed States argues that a requirement that the products of one Member be marked in a 
certain way – such as etching on the product itself, while products from other Members need not be so 
marked, might be shown to constitute less favourable treatment for the purposes of Article  IX:1, but that this 
hypothetical requirement "is a function of the treatment to which the product is subject, not whether the 
Member at issue is a 'country', or what 'country' the territory in which the goods originate belongs to" (Unit ed 
States' response to Panel question No. 9, para. 40). We see nothing in the text of Article  IX:1 that would 
restrict its scope in that way.  
339 United States' response to Panel question No. 7, para.  25. The United States explains that it has 
made this cho ice "based on its essential security interests, in light of China's decision to interfere in the 
governance, democratic institutions, and human rights and freedoms of Hong Kong, China"  (Ibid) . WT/DS597/R  
 
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  as imports from other countries,  are required to be marked with ter minology as determined by the 
United  States .340 It is factually correct that the United  States  requires all products, including 
products of Hong Kong, China, to be marked with a name that the United  States  has determined. 
However, we do not  understand Hong Kong, China to disagree merely "with the name that the 
United  States  has chosen for marking purposes".341 Rather, Hong Kong, China takes issue with the 
fact that the United  States  requires that products of Hong Kong, China be marked to indicate the 
origin o f another WTO Member  (China) .  
7.233.   We disagree with the United  States  to the extent that it appears to suggest that the name 
"China" may be the United  States ' way of designating Hong Kong, China  rather  than the People's 
Republic of China .342 This would neither reflect the  uncontested evidence of the United States  using 
that name to designate  the origin of products from the People's Republic of China343, nor would it be 
consistent with what we understand to be the logic of suspending differential treatment for Hong 
Kong, China  in respect of origin marking .344 As previously noted, the complexity of this situation is 
related to the fact that Hong Kong, China is part of China. We recall, however, that Hong Kong, 
China is also a separate customs territo ry WTO Member , distinct  from China.   
7.234.   Therefore, whereas US law provides that for products of all other countries there should be 
correspondence between the origin determined and the origin marked, it does not provide for such 
correspondence for products of  Hong Kong, China, but instead requires that these products be 
marked to indicate the origin of another WTO Member. This  constitutes different treatment for the 
purposes of our analysis under Article  IX:1. 
7.235.   We therefore  conclude that the United  States  requires goods of Hong Kong, China to be 
marked with a mark of origin indicating the name of another WTO Member, whereas the 
United  States  requires goods of any third country  or Member  to be marked with a name  that 
corresponds to their origin . We consider that this amounts to the United  States  accord ing goods that 
it identifies as manufactured, produced, grown , or substantially transformed in Hong Kong, China 
treatment different  from that which it accords to goods that it identifies (on the basis of the same 
rules of origin) as manufactured, produced, grown , or substantially transformed in any third country  
or Member .  
7.4.5.3   Detrimental impact  
7.4.5.3.1   Arguments  of the parties and the third parties  
7.236.   Hong Kong, China argues that "it is an advantage for exporters to be able to mark their 
products with the full English name of their actual country of origin" .345 According to Hong Kong, 
China , while such advantage for manufacturers and exporters is undeniable,  "it is a disadvantage to 
be required to mark those goods with the name o f a customs territory other than the one in which 
the goods were manufactured or produced ".346 Hong Kong, China submits several reasons why it is 
advantageous for an exporter to be able to mark its products with the name of their actual country 
of origin an d why denying such a possibility adversely modifies the conditions of competition for 
Hong Kong , China  products in the US market. Those include the considerable brand and reputational 
value derived from marking a product as one having the origin of a parti cular Member, the additional 
 
340 United States' opening statement at the second meeting of the  Panel, para.  65. See also United 
States' response to Panel question No.  68, para.  10: "[a]ll countries are subject to the same requirements 
under both these aspects; that is, imports from all countries are required to be marked, and imports from all 
sourc es must be marked with terminology that CBP considers permissible."  
341 United States' response to Panel question No.  68, para.  11. 
342 United States' response to Panel question No.  6, paras.  24-25; second written submission, para.  198.  
343 See USCBP Ruling Letter HQ 731701 Re: Country of Origin Marking of Children's Computer Games 
(26 January 1990), (Exhibit HKG -4) and USCBP Ruling Letter HQ 731701 Re: Country of origin marking for 
products of Hong Kong imported on or after July 1, 1997 (27 June 1997), (Exhibit HKG -5). 
344 See para.  7.197  above. See also United States' first written submission, paras.  8 and 18 -23; opening 
statement at the first meeting o f the Panel, paras.  18-32; response to Panel question No.  9, para.  41; and 
second written submission, para.  170.  
345 Hong Kong, China's first written submission, para.  60; response to Panel question 18, para.  63. In 
support of its argument, Hong Kong, China  refers to a GATT document adopted in 1958 (Marks of Origin, 
Report by the Working Party as adopted by the CONTRACTING PARTIES  at their meeting of 21 November 
1958, GATT document L/912/Rev.1  (22 November 1958) , (1958 GATT Decision), (Exhibit HKG -20)); first 
written submission, para. 74; and response to Panel question No. 18, paras.  65-66.  
346 Hong Kong, China's comments on the United States' response to Panel question 83, para. 41.  WT/DS597/R  
 
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  cost and complexity of exportation for Hong Kong enterprises, and the risks of "confusion and 
potential error in the regulatory treatment" of goods of Hong Kong, China.347  
7.237.   The United  States  argues that Hong Kong, China  has fail ed to produce sufficient evidence to 
demonstrate detrimental impact. According to the United  States , Hong Kong, China  has not provided 
evidence of actual market and consumer views or economic and trade data  on the impact of the 
measure.  Moreover, the Unite d States  submits that Hong Kong, China, has not provided any actual 
data associating the increased costs with the disputed measure. The United  States  notes that the 
"anecdotal evidence" submitted by Hong Kong, China does not take into account  the impact of the  
COVID -19 pandemic  on trade .348 
7.238.   Among the third parties , China argues that the application of the origin marking requirement 
results in the inability of Hong Kong, China enterprises to correctly mark their goods, which 
detrimentally modifies t he conditions of competition in the US market for these goods vis-à-vis the 
treatment accorded to like products originating in other Members.349 The European  Union  asserts 
that imposing an  obligation to mark as origin a different WTO Member is detrimental b ecause the 
like products imported from another WTO Member do not face that requirement . According to the 
European  Union , "[t]he fact alone of being subject to a requirement that otherwise would not apply, 
can already be detrimental ."350  
7.4.5.3.2   Panel's assessment  
7.239.   We begin by recalling some of the clarifications that panels and the Appellate  Body have 
made in past cases – and that the parties do not express  disagreement with – regarding how the 
detrimental impact of a measure can be demonstrated and assessed.  
7.240.   An assessment of less favourable treatment must be founded on an examination of the 
design, structure, and expected operation of the measure  at issue .351 Such assessment aims to 
discern the measure's  implications for the equality of competitive conditions between products 
imported from different countries352, and to determine whether the measure  modifies the conditions 
of competition in the market to the detriment of imported products .353 Importantly, a n analysis of 
less favourable treatment "does not require … an assessment of the contested measure in the light 
of evidence regarding the actual effects of that measure in the market"354, nor should it be "anchored 
in an assessment of the degree of likeliho od that an adverse impact on competitive conditions will 
materialize."355 A measure can be found to accord less favourable treatment because of its potential  
discriminatory impact on imported products from a given Member.356  
7.241.   In light of these elements, we c onsider that to demonstrate that the origin marking 
requirement modifies the conditions of competition to the detriment of products of Hong Kong, China 
vis-à-vis products of any third country, Hong Kong, China has to show that the competitive 
opportunities  for products of Hong Kong, China in the US market are adversely impacted by the 
difference in treatment established by the origin marking requirement.  
 
347 Hong Kong, China's first written submission, paras.  60-63. See also Hong K ong, China's second 
written submission, paras.  97-98. 
348 United States' opening statement at the second meeting of the Panel, para s. 72-75. 
349 China's third-party response to Panel question No.  9, para.  5.  
350 European  Union 's third-party response to Panel question No.  9, para.  25. 
351 See Appellate  Body Report, Thailand – Cigarettes (Philippines) , paras.  130 and  134. 
352 See Appellate  Body Report s, EC – Seal Products , para.  5.101 (referring to Appellate  Body Reports, 
US – Clove Cigarettes , paras.  177 and 179; Thailand – Cigarettes (Philippines) , para.  129; and Korea – Various 
Measures on Beef,  para. 137). See also Appellate  Body Report, US – FSC (Article  21.5 – EC), para.  215, 
referring to the implications of the measure "in the marketplace".  
353 See Appellate  Body Report, Thailand – Cigarettes (Philippines) , para.  128 (referring to 
Appellate  Body Report, Korea – Various Measures on Beef , para.  137).  
354 Appellate  Body Report, Thailand – Cigarettes (Philippines) , para.  134. See also Appellate  Body 
Report, US – FSC (Article  21.5 – EC), para.  215 (referring to Appellate  Body Report, Japan – Alcoholic 
Beverages II , DSR 1996:I, p. 110).  
355 Appellate  Body Report, Thailand – Cigarettes (Philippines) , para.  134. 
356 Panel  Report , Canada – Autos , para.  10.78 ( referring to GATT Panel  Report , US – Section  337 of the 
Tariff Act of 1930 , paras.  5.11 and 5.13).  WT/DS597/R  
 
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  7.242.   We understand the parties to have somewhat diverging views on how Hong Kong, China can 
demonstrate detr imental impact . In particular , they disagree on  whether Hong Kong,  China  is 
required to submit evidence regarding, for example, the value of an origin mark "Hong Kong, China"  
in the US market , or the economic and trade impact ensuing from a requirement to use an origin 
mark indicating the name of another Member.  The United  States  argues that Hong Kong, China has 
not produced sufficient  evidence to demonstrate such impact and distinguish it from other impacts  
such as those resulting from  the COVID -19 pandemic .357 While Hong Kong, China presents some 
elements of evidence in that direction, we understand it to also contend that detrimental impact can 
be demonstrated , more generally,  on the basis of the  design, structure and expected operation of 
the measure .  
7.243.   More specifically Hong Kong, China asserts that there is "an inherent advantage for exporters 
in being able to mark their products with the actual country of origin of the product, as opposed to 
the origin of a different Member" and that WTO Members and their enterprises have an interest in 
ensuring that "their goods are accurately marked with the customs origin of the good".358 We 
understand Hong Kong, China to make a point of principle , arguing that the competitive opportunities 
for products of Hong Kong, China in the US market are affected because products of Hong Kong, 
China are denied an advantage (" to be able to mark their goods with the name of the customs 
territory in which the go ods were manufactured or produced "359) that products of third countries are 
accorded.  
7.244.   To fully address Hong Kong, China's argument that there is an "inherent advantage", we find 
it necessary to take a step back and to consider the role that origin and origin marks play as an 
element of competition. In our view, the origin of a product , and how that origin is indicated  to the 
ultimate purchaser in the import  market,  affect the competitive relationship between imported 
products, to the extent that when origin is indicated, it becomes a relevant factor in purchasing 
decisions. In that sense, a n origin mark, as argued by Hong Kong, China, has an inherent value in 
the import  market.360  
7.245.   When a WTO Member requires all imported goods to be marked with a mark o f origin, as 
the United  States  does, it introduces origin marking, an element that affects the choice of an ultimate 
purchaser , into the conditions of competition  between imported products on the import market . In 
other words, imported p roducts compete in the US market with an indication of their origin  and this 
indication  affects their competitive opportunities.   
7.246.   Differentiating the application of that element of competition between products imported 
from different countries logically alters the competitiv e relationship between those products. In that 
sense, the origin marking requirement alters the competitive relationship between goods imported 
from any third country , which can be marked with the name of their country of origin,  and like goods 
of Hong Kong, China , which must be marked as China origin .   
7.247.   As a result  of this alteration , goods of Hong Kong, China are not allowed to compete in the 
US market with an indication of their origin as it is determined by the United  States361, i.e. to 
compete under Hong Kong, China's  "own name". This in turn means that , following the introduction 
of the origin marking requirement,  a marking indicating Hong Kong, China  as the country of origin 
of the products is no longer available  in the US market . Contrary to export ers of goods of any third 
country, exporters of goods of Hong Kong, China are denied the possibility to influence, develop, or 
benefit from, any value that may be attached, currently or in the future, to the origin of their goods . 
This adversely affects th e competitive opportunities  of these  products in the US market . For products 
 
357 United States' opening statement at the second meeting of the Panel, paras.  74-75; second written 
submission, para.  176; and response to Panel question No.  75, para. 40.  
358 Hong Kong, China's first written submission, para.  63. See also Hong Kong, China's comments on the 
United States' response to Panel question No.  83, para.  41. 
359 Hong Kong, China's comments on the United States' response to Panel question No.  83, para.  41. 
360 See Panel  Report s, Japan – Film, para.  10.338 (where the panel referred to the "possibility that a 
discriminatory country -of-origin designation requirement co uld result in impairment of competitive 
relationships"); and Australia – Tobacco Plain Packaging , para.  7.1167 (where the panel considered that by 
preventing the use of certain features on tobacco products and their retail packaging, the challenged measure s 
"limit the opportunity for producers to differentiate their products", which limits the "opportunity for tobacco 
manufacturers to compete on the basis of such brand differentiation").  
361 See paras.  7.221 -7.226  above, where this factual finding is explained.  WT/DS597/R  
 
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  of Hong Kong, China, compliance with the origin marking requirement would thus involve a 
competitive disadvantage compared with products of any third country .  
7.248.   We consider that Hong Kong, China has therefore  demonstrated, on the basis of the design, 
structure and expected operation of the measure , that the origin marking requirement modifies the 
conditions of competition to the detriment of products of Hong Kong, China. We consider  this to be 
sufficient to demonstrate detrimental impact.  
7.249.   We nevertheless note that Hong Kong, China has describe d several other elements in support 
of its argument that the origin marking requirement detrimentally modifies the conditions of 
competition in the US market for products of Hong Kong, China. First, Hong Kong, China asserts 
that there is often considerable bra nd and reputational value derived from marking a product with 
the origin of a particular Member.362 Second, Hong Kong, China asserts that having  to mark goods 
exported from Hong Kong, China as of 'China'  origin,  when destined for the United  States , has 
increased the cost and complexity of exportation for Hong Kong enterprises.363 Third, in connection 
with its view about the inherent advantage of exporters being able to mark their products with their 
actual country of origin , Hong Kong  China notes that "inaccu rate marking of the customs origin of a 
good is liable to cause confusion and potential error in the regulatory treatment of that good, and in 
fact has already had those effects pursuant to the revised origin marking requirement".364 As noted 
above, we do n ot find it necessary to consider these elements presented by Hong Kong, China for 
the purposes of assessing whether Hong Kong, China has met its burden of proof of demonstrating 
detrimental impact . We, however, note that they illustrate  – to varying degree s and with varying 
relevance – the fact that the mere exclusion of the possibility for products of Hong Kong, China 
origin to compete in the US market with an indication of their origin as determined by the 
United  States , when products of third countries a re granted that same possibility, affects the 
competitive opportunities to the detriment of products of Hong Kong, China.   
7.250.   For these reasons, we find that the origin marking requirement, by requiring that products 
of Hong Kong, China compete in the US mar ket with an indication that their origin is that of another 
WTO Member (China) and not with an indication of their origin as determined by the United  States  
(i.e. Hong Kong, China) , modifies the conditions of competition to the detriment of products of Hong 
Kong, China.  
7.4.6   Conclusion  on Article  IX of the  GATT  1994  
7.251.   The origin marking requirement accords to products that the United  States  has determined  
to originate in Hong Kong, China treatment that is different from the treatment accorded by the  
United  States  to like products of any third country. This difference in treatment results from the 
United  States  requir ing that products of Hong Kong, China be marked with a mark of origin indicating 
the name of another WTO Member  (China) , whereas goods o f any third country  must be marked 
with the name of that third country, and not with the name of another WTO Member. This difference 
in treatment modifies the conditions of competition to the detriment of products of Hong Kong, 
China , because, as a result,  products of Hong Kong, China are required to compete in the US market 
with an indication that their origin is that of another WTO Member (China) and not with an indication 
of their origin as determined by the United  States  (i.e. Hong Kong, China) . Those p roducts are thus 
denied the possibility to compete in the US  market under their own name, and thus to influence, 
develop, or benefit from, any value that may be attached, currently or in the future, to th eir origin . 
7.252.   We thus find that the origin marking req uirement accords to products of Hong Kong, China 
treatment with regard to marking requirements  that is less favourable than the treatment accorded 
to like products of any third country  and is thus inconsistent with Article  IX:1 of the GATT  1994.  
 
362 Hong Kong, China's first written submission, para.  61. In Annex  A to its first written submission, 
Hong Kong, China provided "some examples o f Hong Kong, China enterprises that export goods to the United 
States whose brand and reputational values are inextricably linked to the fact that they are of Hong Kong, 
China origin." (Ibid . para. 61). 
363 Hong Kong, China's first written submission, para.  62. 
364 Hong Kong, China's first written submission, para.  63. WT/DS597/R  
 
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  7.5  Whether the origin marking requirement is justified under Article  XXI(b)(iii) of the 
GATT  1994  
7.5.1   Introduction  
7.253.   Having concluded that the origin  marking requirement is inconsistent with Article  IX:1, we 
now turn to assess ing the United  States ' invocation of Article  XXI(b).  
7.254.   The United  States  refers to actions by the Government of China and Hong Kong, China's 
authorities since November 2019, including the adoption of the Law of the People's Republic of China 
on Safeguarding National Security in the Hong Kong Special Administrative Region (National Security 
Law) in June 2020. For the United  States , these actions have eroded democracy and human rights 
in Hong Kong, China, which, it considers, represents  a threat to its own national security. As noted 
above,  the United  States  made a finding in US law, that Hong Kong, China lacks "sufficient 
autonomy" vis-à-vis China , which has led, inter alia , to the origin marking requirement at issue .365 
Consistent with its position that Article  XXI(b) is entirely self -judging, the United  States  takes the 
view that a panel is not to review the merits of this defence and submits arguments only in response 
to questions by the Panel.366   
7.255.   For H ong Kong, China , the United  States has not demonstrated the objective applicability of 
any of the subparagraphs of Article  XXI(b) .367 Hong Kong, China also submits that the United  States  
has not demonstrated that its alleged concerns about freedom and democracy in Hong Kong, China 
meet the conditions of Article  XXI(b).368 Hong Kong, China defines those conditions in line with the 
legal standard developed by the panel in Russia – Traffic in  Transit . First, a panel should determine 
whether the action was taken in time of an emergency in international relations, such that the events 
at issue directly implicate defence or military interests, or maintenance of law and public order 
interests, wit hin the territory of the invoking Member.369 Second, a panel should examine whether 
the invoking Member took its action in good faith. To that effect, the invoking Member must articulate 
its essential security interests "sufficiently enough to demonstrate their veracity" and demonstrate 
that the act ion for which justification is sought meets a "minimum requirement of plausibility" in 
relation to those proffered essential security interests .370  
7.256.   We recall our previous finding that Article  XXI(b), contrary to the United  States ' view, is only 
partly self -judging in that the subparagraphs are not subject to the phrase  "which it considers" in 
the chapeau . The circumstances set out in the subparagraphs, therefore, are not subject to the 
invoking Member's own determination, and can be reviewed by a panel. As we noted above, our 
interpretive analysis of Article  XXI(b) was limited to that specific question in order to ascertain 
whether there was any scope of review by a panel. Our analysis, therefore, left open what the exact 
scope of that review is and how such  a review is to be carried out. These questions, which arise now 
that such review is due, raise further interpretive issues regarding Article  XXI(b). We recall  that our 
duty is to assist the DSB in resolving a dispute, rather than to clarify every issue of  systemic 
importance. Our approach, therefore, is to proceed step by step in the review of the United  States ' 
defence and address interpretive issues as an d when they arise at each step.  
7.257.   Before undertaking these steps, however, we need to first ascertain t hat the United  States  
has identified the specific subparagraph on which it bases its security defence under Article  XXI(b). 
 
365 See para. 7.197  above. See also United States' first written submission, paras.  1-5; closing 
statemen t at the first meeting of the Panel, para.  3; and second written submission, para.  5. 
366 See United States' introduction to responses to Panel question s after the first meeting of the Panel, 
para. 1; introduction to responses to Panel questions after the se cond meeting of the Panel, para.  1; and 
closing statement at the second meeting of the Panel, paras.  7-13. 
367 Hong Kong, China's second written submission, para.  6; comments on the United States' responses 
to Panel questions, introductory comments, para.  8. 
368 Hong Kong, China's opening statement at the second meeting of the Panel, paras.  8-9; response s to 
Panel question No.  102, para.  105, and No. 109, para.  115; and comments on the United States' response s to 
Panel question No.  103, para.  75, No.  114, paras. 87-88, and No.  116, paras.  90-92.  
369 See Hong Kong, China's response to Panel question No.  104, paras.  107-108. See also opening 
statement at the second meeting of the Panel, para.  8.  
370 Hong Kong, China's  opening statement at the second meeting of the  Panel, para.  8; responses to 
Panel question No.  118, para.  124; and No. 119, para. 125 (commenting on Panel  Report , Russia – Traffic in 
Transit , paras.  7.132 -7.134 and 7.13 8).  WT/DS597/R  
 
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  Otherwise, it would not be clear what it is we are to review. Once this question is resolved, we turn 
to assessing the order in whic h to review that defence, i.e. to identifying the first step in that review.  
7.5.2   Which subparagraph to review in Article  XXI(b)  
7.258.   Consistent with its position that Article  XXI(b) is  entirely  self-judging, the United  States  does 
not identify in its first written submission which subparagraph of Article  XXI(b) it is relying on for its 
defence. Hong Kong, China and some third parties challenge this as a failure to make a prima facie 
case that a subparagraph of Article  XXI(b) applies. In their view, this fall s short of the United  States ' 
burden of proof as the Member invoking this defence.371 In its second written submission, the 
United  States  argues that the information it provided to the Panel could be understood to relate 
most naturally to the circumstances described in Article  XXI(b)(iii) .372 In response to questions after 
the second meeting of the Panel, the United  States  further argues that such information supports 
the existence of an emergency in international relations in this case.373  
7.259.   In our view, Hong Kong, China and the third parties are correct in signalling that a Member 
invoking a defence under Article  XXI(b) must identify the subparagraph under which it is raising its 
defence. Without the Member invoking Article  XXI(b) identifying the relevant subp aragraph, a panel 
would not be in a position to review whether the relevant conditions for the defence are satisfied.  
7.260.   Here, the United  States ' indication about the information on record most naturally relating 
to Article  XXI(b)(iii), together with its indi cation that such information supports the existence of an 
emergency in international relations, makes it clear that its invocation of Article  XXI(b) pertains to 
subparagraph  (iii). In our view, this identification of the subparagraph at issue in this dispu te is 
sufficient for us to conduct our review of the United  States ' defence. We agree with Hong Kong, 
China that the United  States , as the Member invoking Article  XXI(b), bears the burden of 
demonstrating that the elements of the relevant subparagraph are satisfied.374 Whether the 
United  States  has met that burden, is a separate question that we address in section  7.5.4.2  below.  
7.5.3   Order of analysis under Article  XXI(b ) 
7.261.   Having identified subparagraph (iii)  as the relevant subparagraph under which to review the 
defence under Article  XXI(b), we turn to the question of the order in which to review this defence.  
7.262.   Hong Kong, China375 and certain third parties376 submit that the most logical approach would 
be to first examine whether the circumstances in one of the subparagraphs are present before 
turning to an examination of the conditions in the chapeau  of Article  XXI(b). The United  States 
disagrees , as in its view, unlike Article  XX, the requirement for the applicability of Article  XXI(b) is 
that the Member taking the action must consider such action necessary for the protection of its 
essential security interests .377 
7.263.   We agree  with Hon g Kong, China and the third parties  that the most logical way to structure 
our analysis would be to first examine whether the conditions of the relevant subparagraph are met 
before reviewing the chapeau . It follows from our analysis of Article  XXI(b) above  that the 
subparagraphs limit the circumstances in which a Member can take un ilateral action under this 
 
371 See Hong Kong, China's opening statement at the first meeting of the Panel, para. 40, and second 
written submission, para.  150; China's third -party submission, para.  14; and Switzerland's third -party 
submission, paras.  52-53. 
372 United States' second written submission, para.  61. 
373 United States' response to Panel question No.  111, para.  163, and comments on Hong Kong, China's 
response to Panel question No.  110, para.  96. 
374 We understand Hong Kong, China to be concerned about the United States submitting elements of its 
defence too late in the proceedings (Hong Kong, China, opening statement at the second meeting of the Panel, 
para. 9). We do not consider that the identification of the subparagraph in the United States' second written 
submission raises any due process concerns becaus e the United States raised its defence under Article XXI(b) 
from the outset of these proceedings and the parties had ample opportunity to exchange views on the matter.  
375 See Hong Kong, China's opening statement at the second meeting of the Panel, para.  8.  
376 Brazil's third -party submission, para.  11, and third -party responses to Panel question No.  48, 
para. 69, and No.  59, paras.  83-85. Canada's third -party response to Panel question No.  59, paras.  145-146. 
Norway's third -party responses to Panel question No. 54, para.  23, and No. 59, para.  37. Switzerland's third -
party response to Panel question No.  48, paras.  44-46. 
377 See United States' first written submission, para.  57; second written submission, paras.  68-70. WT/DS597/R  
 
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  provision. Accordingly, only if a panel is satisfied that the conditions for applying one or more of the 
subparagraphs are fulfilled would it make sense  for that panel to move on to the chapeau . We note 
that the previous two panels that have made findings with respect to the invocation of the security 
exception followed this same order of analysis.378 
7.264.   We observe  that this order of first examining the subpa ragraphs also resembles the order in 
which defences raised under Article  XX have been examined in the past.379 We would underline , 
however, that by following the same order as in Article  XX, we are not finding or implying that the 
analysis under Article  XXI is like that under Article  XX. In particular, we are not suggesting that 
Article  XXI requires the same review in the chapeau  as the review conducted under the chapeau in 
Article  XX.380 What review may be required under the chapeau of Article  XXI(b) is a question of its 
interpretation, which we will undertake as and when we get to it.  
7.265.   Accordingly, we will first address the interpretive and evidentiary aspects of 
subparagraph  (iii) arisin g from the United  States ' invocation of Article  XXI(b).  
7.5.4   Review of subparagraph (iii)  
7.266.   We recall that Article  XXI(b)(iii) provides, in relevant part:  
Nothing in this agreement shall be construed …  
(b) to prevent any Member  from taking any action which it considers necessary for the 
protection of its essential security interests  … 
(iii) taken in time of war or other emergency in international relations;  
7.267.   We see two elements that must be satisfied for an action to be justified  under this provision: 
(a) there must be a "war or other emergency in international relations"; and ( b) the action must be 
"taken in time  of" that "war or other emergency in international relations" .  
7.268.   Neither the United  States  nor Hong Kong, China have arg ued that the situation in this case 
is one of war. Thus, at issue here is whether there is an " other emergency in international relations". 
This is the issue we begin with in our step -by-step analysis. We therefore first clarify the meaning 
of these terms  and then assess whether the situation in this dispute is one that constitutes an 
"emergency in international relations". If it does, we would then turn to the terms  "taken in time  
of", clarify their meaning and assess whether the action was taken in time o f such an emergency.   
7.5.4.1   Interpretation of the phrase  "emergency in international relations"  
7.269.   As with the interpretive issues in section 7.3 above, pursuant to Articl e 3.2 of the DSU, we 
interpret the phrase  "emergency in international relations" in accordance with the customary rules 
of interpretation of public international law codified in Articles  31, 32, and 33 of the 
Vienna  Convention .  
 
378 Panel  Report s, Russia – Traffic in Transi t, paras.  7.120 -7.125 (where the panel first examined the 
existence of an emergency in international relations under subparagraph (iii) and whether the measures  at 
issue were taken in time of that emergency) and 7.127 -7.148 (where the panel next examined whether the 
conditions in the chapeau  of Article XXI(b) were satisfied); and Saudi Arabia – IPRs, paras.  7.241 -7.243 
(referring to the order of analysis within Article  73(b) of the TRIPS  Agreement , which is identical to 
Article  XXI(b) of the GATT  1994).   
379 See Appellate  Body Report, Indonesia – Import Licensing Regimes , paras.  5.94-5.99 (where the 
Appellate  Body explains the logic under Article XX of the GATT 1994 to foll ow a two -tier test to determine 
whether a measure is justified under that provision, starting with the provisional application of the paragraphs , 
and finishing with the requirements of the chapeau ).  
380 As discussed in para.  7.111  above, Article XX and Article  XXI(b), each have their own structure and 
logic. Notably, Article XX does not include the phrase "which it considers" in qualifying the type of action that a 
Member could take to pursue certain policy objectives. In turn, Article XXI (b) does not include a limitation  
requiring that a  measure not be applied in a manner that constitutes arbitrary or unjustifi able discrimination or 
a disguised restriction on interna tional trade.  WT/DS597/R  
 
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  7.5.4.1.1   Arguments  of the parties and the third parties  
7.270.   In reply to a question from the Pane l381, the United  States  submits that  the ordinary meaning 
of the phrase  "emergency in international relations " is broad. According to the United  States , this 
phrase  "can be understood  as referring to a situation of danger or conflict, concerning political or 
economic contact occurring between nations, which arises unexpectedly and requires urgent 
attention ".382 Such meaning , according to the United  States , is confirmed by the ordinary m eaning 
of the authentic French and Spanish text s of Article  XXI(b)(iii).383 In the United  States ' view, "the 
question of whether a situation is 'serious, unexpected, and often dangerous ' and 'requires action ' 
is inherently subjective ".384 
7.271.   A broad understandi ng of the term "emergency " in Article  XXI(b)(iii) is supported , in the 
United  States ' view,  by the context provided by other provisions of the GATT  1994 and other covered 
agreements . In particular, the United  States  refers to  Article  XII of the GATT385, Article  11.1(b) of 
the Agreement on Safeguards386, and Article  4.2 and footnote 1 of the Agreement on Agriculture387, 
all of which contain the word "similar" with respect to an item in an enumerated list.  The 
United  States  contends that Article  XXI(b)(iii), in contrast, does not refer to "war or other similar  
emergency in international relations".388 
7.272.   Moreover, the United  States  considers that the subparagraphs in Article  XXI(b) are not 
separated by the coordinating conjunction "or", to demonstrate alternatives, or the conjunction 
"and", to suggest cumulative situations. Accordingly, each subparagraph is integrated with the main 
text of Article  XXI(b), while contain ing a different subject matter and scope in relation to the other 
subparagraphs.389 Moreover, subparagraphs (i)  and (ii)  indicate the particular types of essential 
security interests a Member considers to be implicated by the action taken. In contrast, 
subparagraph  (iii) does not speak to the nature of the security interests . In the United  States ' view, 
this reflects an understanding that a wide range of interests may become essential to a Member 's 
security when considering  that a war or other emergency in international relations exists .390 
7.273.   Hong Kong, China agrees with the def inition of an emergency in international relations set 
out by the panel in Russia – Traffic in Transit , according to which this term refers " generally to a 
situation of armed conflict, or of latent armed conflict, or of heightened tension or crisis, or of general 
 
381 The Panel asked both parties to comment on the definition of "emergency in international relations" 
offered by the panel in Russia – Traffic in Transit , according to which such phrase refers " 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" . (Panel  Report , Russia – Traffic in Transit , para.  7.76) . 
382 United States' response to Panel que stion No.  103, paras.  136-137, quoting  the definition of  the 
words  "emergency" (The New Shorter Oxford English Dictionary, 4th edn, L. Brown (ed.) (Clarendon Press, 
1993), 806, (Exhibit US A-193), we note that the dictionary refers to "urgent action" and no t "urgent attention" 
as quoted by the United States ), "relations" (The New Shorter Oxford English Dictionary, 4th edn, L. Brown 
(ed.) (Clarendon Press, 1993), 2534, (Exhibit US A-227)), and "international" (The New Shorter Oxford English 
Dictionary, 4th edn , L. Brown (ed.) (Clarendon Press, 1993), 1397, (Exhibit US A-227)). See also United States'  
response to Panel question No.  105, para.  145. 
383 United States' response to Panel question No.  106, paras.  147-149; comments on Hong Kong, 
China's response to Panel question No.  106, para.  86. 
384 United States' response to Panel question No.  104, para.  142. 
385 Providing that Members applying restrictions for the balance of payments undertake "not to apply 
restrictions which would prevent the importations of commercial samples or prevent compliance with patent, 
trade mark, copyright, or similar  procedures" . (emphasis added)  
386 Referring to "voluntary export restraints, orderly marketing arrangements or any other similar  
measures on the export or import side" . (emphasis added)  
387 Placing limits on "any measures of the kind which have been required to be converted i nto ordinary 
customs duties ", and providing that "[t]hese measures include quantitative import restrictions, variable import 
levies, minimum import prices, discretionary import licensing, non -tariff measures maintained through state -
trading enterprises, vo luntary export restraints, and similar  border measures other than ordinary customs 
duties ". (emphasis added)  
388 United States' response to Panel question No.  103, para.  136 (emphasis original) ; and comments on 
Hong Kong, China's response to Panel question N o. 117, para.  113.  
389 United States' response to Panel question No.  117, para.  190, and comments on Hong Kong, China's 
response s to Panel question No.  112, para.  99, and No.  117, para.  112.  
390 United States' comments on Hong Kong, China's response to Panel question No.  112, para.  100, and 
No. 117, para.  112. WT/DS597/R  
 
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  instability engulfing or surrounding  a state ".391 This interpretation, in Hong Kong, China's view, is 
confirmed by the ordinary meaning of the French and Spanish text s of Article  XXI.392 Moreover, Hong 
Kong, China considers that the existence of an e mergency in international relations is an objective 
matter for a panel to determine.393 
7.274.   In Hong Kong, China's view, whether a situation could constitute an emergency in 
international relations depends on the facts and circumstances of the individual case. However, 
events occurring in other countries that do not directly implicate defence or military interests, or 
maintenance of law and public order interests , within the territory of the invoking Member do not 
constitute such an emergency .394  
7.275.   Hong Kong, China  submits that, when properly interpreted in its context, the phrase "other 
emergency in international relations" refers to a situation in international relations that implicates 
defence or military interests, or maintenance of law and pub lic order interests395, as correctly found 
by the panel in Russia – Traffic in Transit .396 
7.276.   Among the third parties , Brazil, Canada, the European  Union , Norway, Russia , and Singapore  
largely agree with the definition of emergency in international relations se t out by the panel in Russia 
– Traffic in Transit .397  
7.5.4.1.2   Panel's assessment  
7.277.   We will develop our interpretation of the phrase "emergency in international relations" on 
the basis of the ordinary meaning of its terms, in their context and in light of the object and purpose  
of the GATT  1994, and the WTO  Agreement  more generally .398  
7.5.4.1.2.1   Ordinary meaning  
7.278.   We begin our interpretation of Article  XXI(b)(iii) by examining the ordinary meaning of the 
phrase "emergency in international relations".  
7.279.   The word "emergency" is defined as "[a]  juncture that arises or 'turns up '; esp. a state of 
things unexpectedly arising, and urgently demanding immediate a ction".399 We note that the 
United  States  referred to a slightly different definition from an earlier edition of the New Shorter 
Oxford English dictionary, which defines "emergency" as "[a] situation, esp. of danger or conflict , 
 
391 Panel  Report , Russia – Traffic in Transit , para.  7.76. See  Hong Kong, China's response to Panel 
question No.  103, para.  106. 
392 Hong Kong , China's response to Panel question No.  106, para.  110. See Hong Kong, China's 
response to Panel question No.  107, para.  111. 
393 Hong Kong, China's response to Panel question No.  108, para.  112 (referring to Panel  Report , Russia 
– Traffic in Transit , para.  7.77). See Hong Kong, China's  response to Panel question No.  113, para.  119. 
394 Hong Kong, China's response to Panel question No.  104, paras.  107-108; comments on the United 
States' response to Panel question No.  103, para.  74. 
395 Hong Kong, China's response to Panel question No.  105, para.  109. 
396 Hong Kong, China's responses to Panel question No.  103, para.  106 ( quoting  Panel  Report , Russia – 
Traffic in Transit,  paras.  7.74-7.75), No.  112, para.  118, and No.  117, paras.  122-123; and comments on the 
United States' response to Panel question No.  103, para.  73. 
397 Brazil's third -party submission, paras.  11-18 (referring to Panel  Report , Russia – Traffic in Transit , 
paras.  7.74-7.75); third -party response s to Panel question No.  48, para . 69, No. 52, paras.  74-75, and No. 54, 
para. 76. Canada's third -party submission, para.  26; and third -party responses to Panel question No.  52, 
paras.  135-136, No. 53, para.  137, and No. 54, paras.  138-139. European  Union 's third -party submission, 
paras.  34-36; third -party responses to Panel question No.  50, para.  157, No. 51, paras.  158-160, No.  52, 
paras.  164-165, No.  53, para.  166, and No.  54, paras.  167-168. Norway's third -party responses to Panel 
question No . 53, paras.  21-22, and N o. 54, paras. 25-28. See  Norway's  third-party statement, paras.  13-16. 
Russia 's third -party statement, para.  7; third -party response to Panel question No.  50. Singapore's third -party 
response to Panel question No.  52. See Singapore's  third-party statement , paras.  12 and 15 -17. 
398 As for the interpretive question discussed in section 7.3 above, i n undertaking this interpretive  
process, we will be mindful of the analys is that the panel in Russia – Traffic in Transit  has carried out with 
respect to the definition of emergency in international relations (Panel  Report , Russia – Traffic in Transit , 
paras.  7.71-7.76)  and which features centrally in the parties' arguments. We  also note, however, that that 
panel was faced with different legal and factual issues as well as different arguments (see also para.  7.33 
above) .  
399 Oxford English  Dictionary online, definition of "emergency": 
https://www.oed.com/view/Entry/61130?redirectedFrom=emergency+#eid  (accessed 29 September  2022).  WT/DS597/R  
 
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  that arises unexpectedly and  requires urgent action".400 While they differ to some extent, both 
definitions, in our view, refer to a juncture or situation, involving danger or conflict, that can be 
understood to be one outside the ordinary course of events. Moreover, these definitions  suggest a 
degree or magnitude of seriousness, as reflected by the need for urgent or immediate action. We, 
therefore, understand these elements as describing a serious state of affairs requiring urgent action.  
7.280.   In subparagraph  (iii), the noun "emergency" is presented with the compound noun 
"international relations", which is defined as "relations between nations, national governments, 
international organizations, etc., esp. involving political, economic, social, and cultural 
exchanges".401 This definition s uggests that the relations relevant for this inquiry are those between 
states and other participants in international relations , including Members of the WTO, and may 
involve diverse matters , such as political, economic, social, or cultural exchanges. Furt hermore, we 
note the open reference to "international relations " rather than a narrower formulation that might 
have sought to limit it to some specific types of international relations, for example the exclusively 
bilateral relations between the invoking M ember and the Member affected by the action.  
7.281.   The term "emergency" is linked to "international relations" through the preposition "in".402 
Accordingly, not any emergency would qualify under Article  XXI(b)(iii) , but only those occurring  in 
international rela tions. Thus, the emergency must directly concern those relations.   
7.282.   The ordinary meaning of the terms in the phrase "emergency in international relations" 
therefore  suggests a reference to a  serious state of affairs , which occurs in relations between states 
or other participants in international relations  and which requires urgent action .  
7.283.   We recall that pursuant to Article  33 of the Vienna  Convention , the terms in treaties that are 
authentic in more than one language,  are presumed to have the same meaning in each authentic 
language.403 Consistent with this interpretive principle, we turn to examin ing the meaning of the 
phrase  "emergency in international relations" as it may be derived from the  authentic French and 
Spani sh version s of subparagraph (iii). The French and Spanish versions of subparagraph (iii) read 
as follows:  
French: appliquées en temps de guerre ou en cas de grave tension  internationale ; 
Spanish: a las aplicadas en tiempos de guerra o en caso de grave tens ión 
internacional ;404 
7.284.   In French, the word " grave " is defined as "[s]usceptible de suites fâcheuses, 
dangereuses ".405 The word " tension " is defined as "[é]tat de ce qui menace de rompre ".406 The word 
"internationale " is defined as " [q]ui a lieu de nation à nation, entre plusieurs nations; qui concerne 
les rapports entre nations ".407  
 
400 United States' response to Panel question No.  103, para.  136, quoting  the definition of  the word  
"emergency" (The New Shorter Oxford English Dictionary, 4th edn, L. Brown (ed.) (Clarendon Press, 1993), 
806, (Exhibit US A-193)) . 
401 Oxford English Dictionary online, definiti on of "international relations" 
https://www.oed.com/view/Entry/98072?redirectedFrom=international+relations#eid1171748060  (accessed 
29 September  2022). 
402 The preposition "in" is defined as "[e] xpressing the situation of something that is or appears to be 
enclosed by something else: within the limits or bounds of, within (any place or thing) ", Oxford English 
Dictionary online, definition of "in": https://www.oed.com/view/Entry/92970?rskey=BUGtFV&result=7#eid  
(accessed 29 September  2022) . Accordingly, the construct "emergency in international relations" means that 
the emergency must be in international relations.  
403 We recall  that according to Article 33 of the Vienna  Convention , unless otherwise provided, the 
authentic text of treaties in more than one language is equally authoritative.  See fn  108 above.    
404 Emphasis added.  
405 Le Robert  dico en ligne, definition of " grave " https://dictionnaire.lerobert.com/definition/grave  
(accessed 29 September  2022).  
406 Le Robert dico en ligne, definition of " tension " https://dictionnaire.lerobert.com/definition/tension  
(accessed 29 September  2022). 
407 Le Robert dico en ligne, definition of " internationale " 
https://dictionnaire.lerobert.com/definition/international  (accessed 29 September  2022). WT/DS597/R  
 
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  7.285.   In Spanish, the word " grave " is defined as " [g]rande, de mucha entidad o importancia ".408 
The word " tensión " is defined as " [e]stado de oposición u hostilidad latente entre personas o grupos 
humanos, como naciones, clases, razas, etc ".409 The word " internacional " is defined as 
"[p]erteneciente  o relativo a dos o más naciones … [o] a países distintos del propio " and as " [q]ue 
trasciende o ha trascendido las fronteras de su país ".410  
7.286.   We note that the three authentic versions  of Article  XXI(b)(iii) have in common that the 
emergency or " grave tensi on" or " grave  tensión " occurs in international relations . We see no 
difference in meaning in the reference to the words " internationale " (in French) or " internacional " 
(in Spanish), when compared to "international relations" (in English), which as noted ab ove, refers 
to relations between states and other participants in international relations . 
7.287.   We further note that t he French and Spanish authentic versions of Article  XXI(b)(iii) depart 
from the notion of " emergency " in the English authentic version and use the notion of " grave tension " 
or "grave  tensión ". These differences suggest to us that, pursuant to Article  33 of the 
Vienna  Convention , to the extent possibl e, we need to read these meanings harmoniously to clarify  
the meaning of  the phrase "emergency in international relations" in  subpar agraph (iii) as set out in 
its three authentic versions .411  
7.288.   The United  States  suggest s that the ordinary meaning of the terms in French and Spanish  
(i.e. grave tension  and grave tensión ) refers to "serious tension" in English.412 The United  States  
further submits that based on the ordinary meaning of these terms in French and Spanish, the 
definition of "emergency in international relations" could be consistently read with the English as 
referring to  a situation of danger or conflict concerning political or economic contact occurring 
between nations  that arises unexpectedly and requires urgent attention . Further more, the 
United  States  contends  that nothing in the French or Spanish text would suggest t hat Article  XXI(b) 
is available only in certain types of tensions in international relations.413  
7.289.   We note, first of all, that the drafters chose the word "emergency" rather than the word 
"tension" in English.414 It is this word, "emergency", that the French and Spanish versions translate 
into " tension grave " (French) and " grave tensión " (Spanish).  We recall that the elements of the 
ordinary meaning of the word "emergency" in English suggest that it refers to a serious state of 
affairs requiring urgent action. In our view, the above meaning of the relevant words in French and 
Spanish, suggests that the seriousness of the state of affairs requiring urgent action can be best 
understood as referring to situations of the utmost gravity . Indeed the above defi nitions of the 
relevant terms in French and Spanish refer to a state that threatens to break  ("[é]tat de ce qui 
menace de rompre ") and state of opposition or latent hostility (" [e]stado de oposición u hostilidad 
latente ").415 Therefore, tensions and differe nces in international relations cannot be characterized 
as resulting in an emergency in international relations unless the situation they give rise to is of a 
 
408 Diccionario de la Real Academia Española de la Lengua on line, definition of " grave " 
https://dle.rae.es/grave  (accessed 29 September  2022).  
409 Diccionario de la Real Academia Española de la Lengua on line, definition of " tensión " 
https://dle.rae.es/tensi%C3%B3n  (accessed 29 September  2022). 
410 Diccionario de la Real Academia Española de la Lengua on line, definition of " internacional " 
https://dle.rae.es/internacional  (accessed 29 September  2022).  
411 We recall  that Article 33 (3) of the Vienna  Convention  provides that  the terms of the treaty are 
presumed to have the same meaning in each authentic text . At this stage, we are using the authentic texts of 
the three languages to discern  the ordinary meaning  of Article XXI(b)(iii) . 
412 United States' response to Panel question No.  106, paras.  147-148. 
413 United States' response to Panel question No.  106, para.  149. 
414 The word "tension" in English is defined as "[n] ervous or emotional strain; intense suppressed 
excitement; a strained condition of feeling or mutual relatio ns which is for the time outwardly calm, but is 
likely to result in a sudden collapse, or in an outburst of anger or violent action of some kind ", English Oxford 
Dictionary on line, "tension" 
https://www.oed.com/view/Entry/199184?rskey=NBb10m&result=1&isAdvanced=false#eid  (accessed 
29 September  2022).  
415 See Hong Kong, China's response to Panel question No.  106, para.  110 (where Hong Kong, China 
submits that  the French and Spanish texts of Article XXI(b) confirm that the phrase "other emergency in 
international relations" refers not to any situation in international affairs, but, as defined by the panel in Russia 
– Traffic in Transit  to a "a situation of arme d conflict, or of latent armed conflict, or of heightened tension or 
crisis, or of general instability engulfing or surrounding a state" (citing Panel  Report , Russia - Traffic in Transit , 
para. 7.76).  WT/DS597/R  
 
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  truly grave character for the relevant international relations that the situation implicates , in effect, 
a situation representing a breakdown or near -breakdown in those relations .416 
7.290.   Having examined  the ordinary meaning of the relevant terms in the three authentic 
languages , we consider that a harmonious interpretation of such ordinary meaning  suggests  that an 
emergency in international relations refers to a state of affairs that occurs in relations between states 
or participants in international relations that is of the utmost gravity , in effect, a situation 
representing a breakdown or near -breakdown i n those relations . We next turn to examin ing this 
reading in the treaty's context and in light of its object and purpose.  
7.5.4.1.2.2    Context and object and purpose  
7.291.   We recall that we are called upon to consider whether the  reading  that we have discerned 
from the ord inary meaning of the phrase "emergency in international relations", "makes sense" in 
the context of the other relevant provisions in the GATT  1994 and elsewhere in the covered 
agreements , and in light of its object and purpose .417 
7.292.   We first turn to the immediate context in subparagraph (iii) itself. We recall the wording of 
the subparagraph which is "taken in time of war or other emergency in international relations"  in 
English, " appliquées en temps de guerre ou en cas de grave tension internationale " in French, and 
"a las aplicadas en tiempos de guerra o en caso de grave tensión internacional " in Spanish . In the 
three authentic texts, the terms "war" and "other emergency" (or its equivalent in French and 
Spanis h) are connected by the conjunction "or", wh ich in the three languages is used to connect two 
or more clauses in a sentence .418  
7.293.   We disagree with the United  States  to the extent that it suggest s that the absence of the 
word similar , indicating "war or other similar emergency", means that these terms cannot i mpart  
meaning to each other . In our view, the inclusion of the words " or other " before  "emergency in 
internation al relations" in the English text, makes clear that war is directly connect ed to such other 
emergency in international relations , even in the absence of the word "similar" . Indeed, we agree 
with the panel in Russia – Traffic in  Transit , that war is one example of the larger category of 
"emergency in international relations".419 We therefore consider that the words "war" and "other 
emergency in international relations" are included in Article  XXI(b)(iii) in a manner that supports a 
reading under which  those words impart meaning to each other.  
7.294.   War is defined as "[h] ostile contention by means of armed forces, carried on between  
nations, states, or rulers, or between parties in the same nation or state; the employment of armed 
 
416 See Panel  Report , Russia – Traffic in Transit , para. 7.75 (where the panel observed that "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 in a politi cal sense, they will not 
be 'emergencies in international relations' within the meaning of subparagraph (iii)") . 
417 See paras.  7.91- 7.92 above.  
418 The conjunction  "or" in English is defined as "[u] sed to coordinate two (or more) sentence elements 
between which there is an alternative " (English Oxford Dictionary online, "or" 
https://www.oed.com/view/Entry/132129?rskey=fSnqDQ&result=9&isAdvanced=false#eid  (accessed 
29 September  2022)) ; the conjunction " ou" in French is defined as " [c]onjonction qui joint des termes, 
membres de phrases ou propositions analogues, en séparant les idées exprimées " (Le Robert dico en ligne, 
"ou" https://dictionnaire.lerobert.com/definition/ou  (accessed 29 September  2022)); and the conjunction " o" in 
Spanish is defined as " [d]enota diferencia, separación o alternativa entre dos o más personas, cosas o ideas " 
(Diccionario de la Real Academia Español a en línea, " o", https://dle.rae.es/o  (accessed 29 September  2022)).  
419 Panel  Report , Russia - Traffic in Transit , para.  7.72. See Hong Kong, China's response to Panel 
question No.  117, para.  112. We note that the adjective "other" is defined as " being the one or ones distinct 
from that or those first mentioned or implied " (Merriam Webster Dictionary online, definition of "other": 
https: //www.merriam -webster.com/dictionary/other  (accessed 29 September  2022) ), and in subpa ragraph (iii) 
it is preceded by the conjunction "or", which as noted above, is u sed to coordinate two (or more) elements  in a 
sentence.  
We further note that the word "ot her" is not present in the authentic text of Article XXI(b)(iii) in French 
and Spanish. However, as discussed in para.  7.292  above, the use of the c onjunction " ou" and "o", 
respectively, in the French and Spanish authentic text denotes a link between the two situations described in 
subparagraph  (iii).  WT/DS597/R  
 
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  forces against a foreign power, or against an opposing party in the state ".420 Based on its ordinary 
meaning , and irrespective of a broader debate on the de finition of this term in public international 
law421, we understand the term "war" to generally  refer to armed conflict.422  
7.295.   We recall that , consistent with our assessment of the ordinary meaning of its terms, an 
emergency under subparagraph (iii) must be in international relations  – which , as noted above, are 
those relations between states or other participants  in international relations . The contextual role of 
war must therefore be framed within the remit of the impact of such type of situation on those 
international relations.  In this regard,  a state of war illustrates the exact opposite of peaceful and 
friendly interaction between states.423 Indeed, a  state of war between two or more countries 
represents the ultimate  breakdown of their relations .  
7.296.   As noted above, t he reference to war  in subpa ragraph (iii)  suggests that the emergency  in 
international relations is a broader category than war, and in our view also serves to support 
conceptually the notion of  war a s an example of an ultimate  emergency in international  relations. 
The context provided by  the word " war", suggests  that an emergency in international relations  must 
represent a situation of breakdown or near -breakdown  in the relations  between states or  other 
participants in  international relations .  
7.297.   The above does not suggest  that for a situation to constitute an emer gency in international 
relations it must amount to war. Rather, it should reflect a near-comparable  gravity or magnitude 
as concerns its adverse impact on  the relations between states or other participants in international 
relations . In this regard, we not e that war will affect conflicting parties  directly, but may also affect 
international relations more broadly. We recall that,  the open reference to "international relations" 
suggests that the emergency  does not necessarily have to originate in the invokin g Member's own 
territory and bilateral relations. Thus, a war taking place between two or more countries, could also 
give rise to an emergency in international relations affecting other countries.424 
7.298.   The context offered by the rest of subparagraph (iii) thu s confirms our reading, based on 
the ordinary meaning of the three authentic texts, that an emergency in international relations 
generally refers to a state of affairs that occurs in relations between states or participants in 
international relations that is of the utmost gravity, in effect, a situation that represents a breakdown  
in those relations .425 Such a state of affairs, just as in a war, could lead to a situation where a 
Member or Members may well find themselves in a context where they may not, in relation to 
 
420 Oxford English Dictionary online, definition of " war": 
https://www.oed.com/view/Entry/225589?rskey=VlMgYM&result=1&isAdvanced=false#eid  (accessed 
29 September  2022). In public international law, there have been discussions on how to define this term.  
421 For a discussion on the various definitions of this term, see A. Clapham, War, (Oxford University 
Press, 2021); particularly, Chapter 1: The Multiple Meanings of War.  
422 Panel  Report , Russia – Traffic in Transit , para.  7.72. 
423 See preamble of the UN Charter (which states "to ensure, by the acceptance of principles and the 
institution of methods, that armed force shall not be used, save in the common interest ") and Articl e 1; and 
General Assembly Resolution 2625 (XXV) Declaration on Principles of International Law concerning Friendly 
Relations and Co -operation among States in accordance with the Charter of the United Nations (A/8082), 
24 October  1970 (particularly the prin ciple that States 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 with the purposes of the United Nations).  
424 We find confirmation for this view in the negotiation history of Article XXI(b). When asked about the 
meaning of the terms "emergency in international relations" at the meeting of the negotiating committee on 
24 July 1947, the US delegate replied:  
As to the s econd provision, "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 Europe 
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 c ontrol because of the war then going 
on. 
Minutes of the 24 and 30  July 1947 Negotiation Meetings , (Exhibit  USA-30), p. 20.  
To us this statement suggests that in the United States ' view , the war going on in Europe (to which it 
was not yet a party  at the outset ) represented a type of situation that would constitute an  emergency in 
international relations for purposes of Article  XXI(b)(iii) .  
425 See para. 7.290  above.  WT/DS597/R  
 
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  another Member or Members, be expected to act in accordance with the relevant GATT obli gations 
that would normally apply outside of such war or "other emergency in international relations".   
7.299.   We next turn to the broader context of Article  XXI(b), namely, subparagraphs (i)  and (ii). 
The first subparagraph refers to "fissionable materials or th e materials from which they are derived". 
The second subparagraph refers to "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 militar y establishment".  
7.300.   In our view , unlike subparagraph (iii) that refers to a specific situation, 
subparagraphs  (i) and (ii)  refer to areas of action  where particular aspects of essential security 
interests may be implicated. To that extent, these subparagrap hs do not speak to the magnitude or 
gravity of the situation, as  the terms  "war or other emergency  in international relations " do in the 
context of subparagraph (iii).  
7.301.   We further note that the subject  matters  covered in  subparagraphs (i)  and (ii)  are clea rly 
related to the defence and military  sector . They are thus closely connected to the situation of war 
set out in subparagraph  (iii). In our view, given the gravity of the situation  that we believe the 
concept of "emergency in international relations" entails, we would expect defence and military 
matters to normally be implicated. At the same time, recogni zing that each situation will need to be 
considered on its individual merits, we  would refrain from suggesting that  an emergency must 
necessarily involve defence and military interests, as the panel in Russia – Traffic in Transit seems 
to suggest  and as Hong Kong, China argues .426  
7.302.   Finally, we turn to Article  XXI(c) , which offer s additional context that may be helpful in 
inform ing the meaning of the phrase "emergency in international relations". Article  XXI(c) provides 
that "[n]othing in this Agreement shall be construed to … p revent any Member  from taking any 
action in pursuance of its  obligations under the United Nations Charter  (UN Charter)  for the 
maintenance of international peace and security ". Chapter VII of the UN Charter, entitled " Action 
with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression ", sets out the 
framework for action by the Security Council with respect to the maintenance of international peace 
and security. Article  39 of the UN Charter describes the types of situations that fall within the 
Security Council's competence in this regard. Thos e situations are "a ny threat to the peace, breach 
of the peace, or act of aggression ".427 
7.303.   We are cognizant that Article  XXI(c) acknowledges that Members may be required to take 
action against another Member or Members pursuant to their obligations under the UN Charter for 
the maintenance of international peace and security. Where such actions flowing from such 
obligations w ould otherwise be contrary to a Member's GATT obligations, Article  XXI(c) provides for 
a defence to a claim of GATT inconsistency. Action under Article  XXI(b) is, in contrast, unilaterally 
determined by the invoking Member, rather than resulting from the M ember's UN Charter 
obligations. At the same time, Article  XXI(c), forms part of the context of Article  XXI(b). Accordingly, 
for the purposes of identifying the meaning of the phrase "emergency in international relations", 
Article  XXI(c) can be seen as illu strating the seriousness and gravity of the type of situations that 
are covered by Article  XXI more generally . 
7.304.   In light of the contextual analysis, we consider that the phrase "emergency in international 
relations" refer s to a state of affairs, of the utmo st gravity, that represents a breakdown  or near -
breakdown  in the relations  between states or other participants in international relation s.428  
 
426 See Panel  Report , Russia – Traffic in Transit , para.  7.74 (where the panel observed that those 
interests identified in subparagraphs (i)  and (ii), like the interests that arise from a situation of war in 
subparagraph (iii) itself, are all defen ce and military interests, as well as maintenance of law and public order 
interests).  We observe that that panel identified the subject matter in subparagraphs (i)  and (ii)  of 
Article  XXI(b) as "interests", whereas we understand them as areas of action related to a specific subject, 
given our reading of Article XXI(b) that the subparagraphs of Article XXI(b) only refer to the word "action" in 
the chapeau .  
427 See B. Conforti, The Law and  Practice of the United Nations  3rd edn (Martinus Nijhoff Publishers, 
2005), pp. 149 -152 and 170 -172. 
428 To the extent that the United States suggests that Article XXI(a) is also relevant context (see United 
States' response to Panel question No.  113, para.  170), we consider that Article XXI(a) does not provide 
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  7.305.   We see nothing in the object and purpose of the GATT  1994 or the WTO  Agreement , as 
identified above429, which woul d contradict the meaning that we have discerned.430  
7.5.4.1.2.3   Conclusion on the interpretation of the phrase "emergency in international 
relations"  
7.306.   Where we, thus, have come to in our analysis under Article  31 of the Vienna  Convention  is 
that the phrase "emergency in international relations" refer s to a state of affairs, of the utmost 
gravity, in effect a situation  represent ing a breakdown  or near -breakdown  in the relations  between 
states or other participants in international relations .  
7.307.   In light of this meaning, a panel's inquiry will concern the  relations between states and other 
participants in international relations , and the extent to which underlying circumstances have  led to 
a state of affairs  that is  of the utmost gravity represent ing a breakdown or near -breakdown in those 
relations. As we noted earlier, the emergency does not necessarily have to originate in the invoking 
Member's own territory and bilateral relations but could happen more broadly in relations among a 
wider group of  WTO Members . 
7.308.   We consider that the focus under subparagraph (iii) is therefore not about the underlying 
circumstances from which such a state of affairs appears to result , but rather about the gravity of 
the impact that such state of affairs has on the relations between two or more countries, or Members. 
In other words, the wording of the subparagraph enjoins a panel to examine the extent of the 
deterioration in relations between states or other participants in international relations , irrespective 
of what caused that deterioration. Although the underlying circumstances may inform a panel's 
assessment of whether a given situation constitutes an emergency in international relations , a panel 
would not review the merits  or the veracity  of such underlying circumstances  or alleged 
circumstances that may have given rise to the situation  examined .431 
7.309.   As regards the assessment of the gravity of the situation, the United  States  submits that 
"the question of whether a situation is 'serious, unexpected, and often d angerous ' and 'requires 
action ' is inherently subjective ".432 We acknowledge that the invoking Member's view, as well as that 
of other countries or Members implicated in the emergency in international relations, are relevant 
for a panel's examination under Article  XXI(b)(iii). However, this does not mean that a panel must 
solely rely on the invoking Member's appreciation of the situation, or that a panel cannot refer to 
objective parameters to conclude on the existence or not of such an emergency. To that ex tent, and 
consistent with our view that Article  XXI(b) is only partly self -judging, we do not consider that it 
would be solely up to the invoking Member to determine the existence of an emergency in 
international relations.  
7.310.   Just as with respect to other i nherently subjective human experiences, for example, how we 
experience whether it is warm or cold, there are parameters to establish when a situation constitutes 
an emergency in international relations. In our view, such parameters could be conceptualized in a 
spectrum covering friendly and peaceful interaction between Members, at one end, and the 
breakdown  of relations between two or more countries, or Members, at the other end. This spectrum 
would serve a similar role for an emergency in international rel ations, in the same way that  a 
 
context relevant for the interpretation of the phrase "emergency in international relations". As discussed 
above, we disagree with the United States that Article XXI(a) confirms its view that Article XXI(b) is entirely 
self-judging.  (See paras.  7.101 - 7.103  above. ) 
429 We recall that the object and purpose of the GATT  1994 and the WTO  Agreement  more generally 
identified above concerns the "mutually advantageous arrangements", referred to in the preamble of the 
GATT  1994, which describe the balance struck between the various rights and obligations; and  the security and 
predictability of the multi lateral trading system specifically referred to in Article 3.2 of the DSU. See 
para. 7.142  above . 
430 We recall that the parties raised arguments regarding the object  and purpose of the GATT 1994 and 
the WTO Agreement more generally in the context of their views on whether Article XXI(b) is entirely or partly 
self-judging. See section 7.3.5.1  above.  
431 See Panel  Report , Saudi Arabia – IPRs, para.  7.263 (where the panel noted that it "expresses or 
implies no position concerning any of" Saudi Arabia's allegations in respect of Qatar , and that it "suffices to 
observe that the nature of the allegations constitutes further evidence of the grave and serious nature of the 
deterioration and rupture in relations between these Members , and is also explicitly related to Saudi Arabia's 
securit y interests" ). 
432 United States' response to Panel question No.  104, para.  142. See United States' response to Panel 
question No.  111, para.  161. WT/DS597/R  
 
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  thermometer does for measuring temperature. They both provide a framework to assess how a 
particular phenomenon has been  manifested.  
7.311.   Based on the meaning we have discerned above, an emergency in international relations on 
that spectrum lies close r to the extreme of a breakdown  in relations between two or more countries, 
or Members. In contrast, most political tensions and differences among countries , even those that 
may appear to be of a quite serious nature, would, in our vi ew, normally not be situated close enough 
to that  end of the spectrum and would therefore not necessarily constitute an emergency .433 As we 
know from daily media reports, we live in a world driven by a range of political, economic,  social,  
and environmental tensions  and divergences. At the same time, in the midst of these tensions and 
divergences Members will in most cases continue to manage their relationships within a range of 
international legal frameworks aimed at ensuring predictability and stability within the international 
system. Article  XXI(b)(iii) stands for the principle that situations of war or other emergency in 
international rel ations represent an exception to this. If the existence of tensions or policy 
divergences of any magnitude, however, were to constitute an emergency in international relations, 
the character of Article  XXI as an exception to apply in the gravest of circums tances would 
fundamentally change.   
7.312.   However, we consider that it would neither be possible nor helpful to attempt to provide a 
list of events that fall under this definition in the abstract. A determination of whether a given 
situation constitutes an emerg ency in international relations is to be examined on a case -by-case 
basis, considering  the circumstances and context in which Article  XXI(b)(iii) is invoked. In this 
context, we consider that the further removed that a situation is from war  or comp arable threat to 
international peace and security , the more explanation a respondent would usually need to provide 
as to why a given situation is close to the breakdown in relations between two or more countries, or 
Members, in the sense of Article  XXI(b) (iii).  
7.313.   We further  note that two previous panels have concluded that the circumstances in those 
cases  constituted an emergency in international relations. The first instance was the situation 
between Ukraine and Russia in 2014, examined by the panel in Russia – Traffic in Transit. That panel 
considered that there was evidence on record that, between March 2014 and the end of 2016, 
"relations between Ukraine and Russia had deteriorated to such degree that they were a matter of 
concern to the international community",  such that by December 2016, the "situation between 
Ukraine and Russia was recognized by the UN General Assembly as involving armed conflict". That 
panel further noted that additional evidence of the gravity of the situation was the fact that, since 
2014, several  countries had imposed sanctions against Russia in connection with that situation.434   
7.314.   The second instance concerned the relations between Qatar, on the one hand, and Saudi 
Arabia and other countries in the Middle East and North Africa region, on th e other hand, examined 
by the panel in Saudi Arabia – IPRs. That panel concluded "that 'a situation … of heightened tension 
or crisis' exists in the circumstances in this dispute, and is related to Saudi Arabia's 'defence or 
military interests, or maintena nce of law and public order interests' (i.e. essential security interests), 
sufficient to establish the existence of an 'emergency in international relations' that has persisted 
since at least 5  June 2017."435 The panel 's conclusion took into account, inter alia , Saudi Arabia's 
severance of diplomatic, consular and economic ties with Qatar, which the panel qualified as action 
that "can be characterized in terms of an exceptional and serious crisis in the relations between two 
or more States".436 The panel also considered  that the nature of the allegations made by Saudi 
Arabia, on which the panel expressed or implied no position and that were strongly denied by Qatar, 
"constitutes further evidence of the grave and serious nature of the d eterioration  and rupture in 
relations between these Members, and is also explicitly related to Saudi Arabia's security". In this 
 
433 See Panel  Report , Russia – Traffic in Transit , para.  7.75. In this regard, we note  that the United 
States would not expect that a Member would consider every situation of concern in international relations to 
be an "emergency in international relations" such that it would need to act to protect its essential security 
interest s. In the United  States' view, this is "evidenced by the fact that for the past 70 years Members 
(formerly contracting parties) have sought to resolve certain trade concerns through both the monitoring and 
dispute settlement functions of the multilateral trading system, a nd essential security interest s have not been 
invoked in every dispute". (United States' response to Panel question No.  109, para.  153).  
434 Panel  Report , Russia – Traffic in Transit , paras.  7.122 -7.123.  
435 Panel  Report , Saudi Arabia – IPRs, para.  7.257 ( quoting Panel  Report , Russia – Traffic in Transit , 
para. 7.76).  
436 Panel  Report , Saudi Arabia – IPRs, para.  7.262. (See i bid. paras.  7.258 -7.261 ).  WT/DS597/R  
 
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  regard the panel disagreed with Qatar that those events could be characterized as a "mere political 
or economic" dispute.437 
7.315.   Although both panels relied on a slightly different definition of emergency in international 
relations than the one elaborated here438, the elements identified by both panels clearly reflect a 
similar understanding to ours of the type of situation that constit utes an emergency in international 
relations. That is, a state of affairs, of the utmost gravity, which represent s a breakdown  or near -
breakdown  in the relations  between states or other participants in international relations.  
7.316.   We next turn to examin ing the facts of this case to determine whether the situation at issue 
satisfies the parameters of an emergency in international relations under Article  XXI(b)(iii).  
7.5.4.2   Whether the situation at issue is one that constitutes an emergency in 
international relations  
7.5.4.2.1   Arguments  of the parties and the third parties  
7.317.   The United  States  submits that to the extent that the Panel chooses to assess the merits of 
the United  States ' invocation of Article  XXI(b)(iii), it has submitted extensive evidence on the record 
that supports such invocation, as well as evidence on the existence of an emergency in international 
relations.439 According to the United  States , the views of other countries regarding the situation with 
respect to Hong Kong, China could support a f inding that there is such an emergency .440 The 
United  States  submits that it would expect the Panel to consider the evidence on record regarding 
the basis for the measures at issue and the circumstances and context in which they were taken.441 
7.318.   Hong Kong, Chi na contends that the United  States  has failed to demonstrate that its alleged 
concerns about freedom and democracy in Hong Kong, China constitute an emergency in 
international relations. According to Hong Kong, China, the United  States  failed to demonstrat e that 
these alleged concerns implicate any defence or military interest, or maintenance of law and public 
order interest, of the United  States .442 Moreover, Hong Kong, China submits  that the relations 
between the United  States  and Hong Kong, China continue  as before, including on trade matters 
with the exception of the specific origin -marking requirement  that is the subject of the current 
dispute  (as well as the other actions taken pursuant to Executive Order 13936 not at issue in this 
dispute ). In this reg ard, Hong Kong, China notes  that m ost pertinently, the United  States  continues 
to treat goods manufactured or produced in Hong Kong, China as goods of Hong Kong, China origin 
for the purpose of duty assessment.443 
 
437 Panel  Report , Saudi Arabia – IPRs, para.  7.263 .  
438 The panel in Russia – Traffic in Transit  considered that an emergency in international relations 
generally refers 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". In that panel's view,  "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". (Panel  Report , Russia – Traffic in Transit , paras.  7.76-7.77). The panel in Saudi 
Arabia – IPRs followed this definition . (Panel  Report , Saudi Arabia – IPRs, paras.  7.245 and 7.2 57). For the 
reasons explained in this section, we do not consider that an emergency in international relations will 
necessarily only arise from situations re lated to a Member's defence or military interests, or to maintenance of 
law and public order interests; nor do we consider that an emergency in international relations necessarily has 
to refer to a situation of "general instability engulfing or surrounding  a state".  
439 United States' responses to Panel question No.  110, paras.  155-156, No. 111, para.  163, and 
No. 114, para.  175. See  United States'  responses to Panel question No.  119, para.  209 and 215 , and No. 120, 
para. 218. See United States' comments on Hong Kong, China's response to Panel question No.  102, 
paras.  79-80. 
440 United States' response to Panel question No.  111, para.  163; and comments on Hong Kong, China's 
response to Panel question No.  110, para.  96. 
441 United States' comments on H ong Kong, China's response to Panel question No.  124, para.  134. 
442 Hong Kong, China's opening statement at the second meeting of the Panel, para.  8; response to 
Panel question No.  109, para.  115; and comments on the United States' response to Panel questio n No.  103, 
para. 75, No. 114, paras.  87-88, and No.  116, paras.  90-92. See Hong Kong, China's responses to Panel 
question No.  110, paras.  116-117, No.  115, para.  121, and No.  120, paras.  127-128.  
443 Hong Kong, China's comments on United States ' response to question No.  125, paras.  104-105. See 
USCBP Guidance on Marking of Goods of HKG – Executive Order 13936 , (Exhibit  HKG-12). WT/DS597/R  
 
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  7.319.   Canada  comments that the concerns of the United  States , which Canada shares, regarding 
the degree of autonomy of Hong Kong , China  and the respect for rights and freedoms in Hong Kong , 
China  are relevant to the question of the existence of an emergency in international relations .444 
7.320.   China  states that the National Security Law  (which came into effect on 30  June 2020) and 
relevant measures taken to safeguard the security and stability of Hong Kong , China  are fully in line 
with the Basic Law and "one country, two systems" policy . China further notes th at these measures  
have not changed the status of Hong Kong, China as a separate customs territory, nor do they affect 
its qualifications and status as a WTO Member. According to China,  these measures have nothing to 
do with the so -called national security of other WTO Members.445 
7.321.   The European  Union  argues that there are significant elements to indicate that the situation 
to which the United  States  sought to respond by its measures is one of an emergency in international 
relations within the meaning of Articl e XXI(b)(iii) of the GATT  1994.446 
7.5.4.2.2   Panel's assessment  
7.322.   Our task is  to examine whether in the specific circumstances of this dispute the situation at 
issue is one that constitutes an emergency in international relations. To that effect, i n this section 
we exa mine the evidence and arguments submitted by the United  States , as well as  Hong Kong, 
China's arguments  and those arguments and evidence submitted by certain third  parties . 
In undertaking this task, we focus on whether international relations reached a state of breakdown 
or near -breakdown  consistent with the meaning of "emergency in international relations"  clarified 
above. We recall that  our inquiry will not be focused on the underlying events in Hong Kong, China 
referred to by the United  States , but rather on how we see their effect reflected in international 
relations and whether the standard of an "other emergency in international relations " is met.   
7.5.4.2.2.1   Evidence submitted b y the United  States  
7.323.   The United  States  generally asserts that the evidence that it submitted to the Panel supports 
the existence of an emergency in international relations.447 The United  States  emphasize s that it 
considered that the situation in Hong Kong, C hina, resulting from China's actions (including the 
adoption of the National Security Law) and from actions of Hong Kong, China's authorities, poses a 
threat to its essential security interests.448 In this way, the United  States  argument appears to be 
focus ed principally on the chapeau  to Article  XXI and the reference to action it considered necessary 
in relation to its essential security interests. At the same time, we understand that according to the 
United  States , "an erosion of freedoms and rights of the  people in Hong Kong, China, as well as the 
institutional degradation of democracy in Hong Kong, China"449 in and of itself constitutes an 
emergency in international relations under Article  XXI(b)(iii). We therefore turn to examin ing 
whether the evidence on  the record demonstrates this to be the case.  
7.324.   We recall that the relevant international relations may include those between the parties to 
this dispute or between other Members. Based on the United  States ' arguments, we consider that 
our inquiry in the con text of the current dispute concerns the United  States ' relations with China and 
Hong, Kong, China, as well as those between other Members, on the one hand, and China and Hong 
Kong, China, on the other hand.  
7.325.   The evidence before us  can be grouped in four categories: US domestic instruments ; reports  
and statement by U nited States ' officials on the situation in Hong Kong, China ; statements by other 
 
444 Canada's third -party statement, para.  19. 
445 China's third -party submission, para.  3; third -party statement, para.  2; and response to Panel 
question No s. 51, 52, and 53, para.  16.  
446 European  Union 's third -party submission, para.  39. See ibid. paras.  11-16. 
447 United States' responses to Panel question No.  110, para.  156. See  United States'  responses to Panel 
question No.  111, paras.  162-163, and No.  114, para.  175. See also United States'  responses to Panel question 
No. 119, para s. 209 and 215 , and No. 120, para.  218; and comments on Hong Kong, China's response to Panel 
question No.  102, paras.  79-80. 
448 United States' first written submission, para.  2.  
449 United States' closin g statement at the first meeting of the Panel, para.  3; second written 
submission, para.  5.  WT/DS597/R  
 
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  countries  and Members  on the situation in Hong Kong, China ; and press articles . We turn to 
examin ing each of th ose categories.  
US domestic instruments  
7.326.   Under the first category, the United  States  refers to the 1992 Hong Kong Policy Act450, the 
2019 Hong Kong Human Rights and Democracy Act451, the 2020 State Department Hong Kong Policy 
Act Report  (2020 Hong Kong  Policy Act Report )452, Executive Order 13936453, the 2020 Hong Kong 
Autonomy Act454, and the 2021 State Department Hong Kong Policy Act Report  (2021 Hong Kong 
Policy Act Report ).455 We briefly survey each instrument.  
7.327.   Through the 1992 Hong Kong Policy Act, the Unite d States  Congress set out the policy of 
the United  States  with respect to Hong Kong, China following the resumption of the exercise of the 
People's Republic of China 's sovereignty over Hong Kong, China on 1  July 1997. Among its findings 
and declarations, t he US Congress recognized the 1984 Sino -British Joint Declaration and the parties' 
commitments set out therein. The US Congress also noted that "[s]upport for democratization is a 
fundamental principle of United  States  foreign policy. As such, it naturally  applies to United  States  
policy towards Hong Kong. This will remain equally true after June  30, 1997".456 Moreover, the 
US Congress observed that the "human rights of the people of Hong Kong are of great importance 
to the United  States  and are directly rel evant to the United  States  interests in Hong Kong."457 This 
Act also sets out the conditions under which the US president  may determine that Hong Kong , China  
no longer warrants differential treatment from China as a result of a finding that Hong Kong , China  
is no longer sufficiently autonomous.458 
7.328.   The 2019 Hong Kong Human Rights and Democracy Act, reaffirms some of the principles of 
the 1992 Hong Kong Policy Ac t, including the protection of democracy and human rights.459 It also 
expresse s that it is the United  States ' policy to "urge the Government of [China] to uphold its 
commitments to Hong Kong", including democratic elections. As well as to "draw internationa l 
attention to any violations by the Government of [China] of the fundamental rights of the people of 
Hong Kong" and to "coordinate with allies, including the United Kingdom, Australia, Canada, Japan, 
and the Republic of Korea, to promote democracy and hum an rights in Hong Kong".460 Notably, the 
2019 Hong Kong Human Rights and Democracy Act set s out the conditions under which the secretary 
of state would report to Congress the situation regarding the autonomy of Hong Kong.461  
7.329.   On 28  May 2020, the State Depart ment issued the 2020 Hong Kong Policy Act Report, 
covering developments in Hong Kong from March 2019 through May 2020. The report observes that 
"[a]fter careful consideration, as required by section 301 of the Hong Kong Policy Act, I can no longer 
certify that Hong Kong continues to warrant" differential treatment under US law. This report further 
notes that since the last report was issued, where it was found that Hong Kong , China  maintained 
sufficient – although diminished – degree of autonomy, "China has  shed any pretense that the people 
of Hong Kong enjoy the high degree of autonomy, democratic institutions, and civil liberties 
guaranteed to them by the Sino -British Joint Declaration and the Basic Law".462 
7.330.   The report supports the foregoing statements with  reference to three elements . First, a 
statement issued by the Legislative Affairs Commission of the National People's Congress Standing 
Committee (NPCSC) on November 2019 "asserting that only the NPCSC has the power to decide 
 
450 1992 Hong Kong Policy Act, (Exhibit s USA-3, HKG -14). 
451 Hong Kong Human Rights and Demo cracy Act of 2019, Pub. L. 116 -76, (2019 Hong Kong  Human 
Rights and Democracy  Act), (Exhibit  USA-4). See 22  U.S.C. § 5725, Secretary of State report regarding the 
autonomy of Hong Kong (27  November  2019), (Exhibit HKG -16).  
452 2020 Hong Kong Policy Act Repo rt (28  May 2020), (2020 H ong Kong  Policy Act Report), 
(Exhibit  USA-5).  
453 Executive Order 13936, (Exhibit s USA-2, HKG -13). 
454 Hong Kong Autonomy Act, Pub. L. 116 -149, ( 2020 Hong Kong Autonomy Act), (Exhibit USA -9).  
455 2021 Hong Kong Policy Act Report , (Exhibit  USA-6). 
456 Section  2(5), 1992 Hong Kong Policy Act, (Exhibit s USA-3, HKG -14). 
457 Section  2(6), 1992 Hong Kong Policy Act, (Exhibit s USA-3, HKG -14). 
458 See paras.  7.196  and 7.197  above, where this is explained in more detail.  
459 Section  3(1), 2019 Hong Kong  Human Rights and Democracy  Act, (Exhibit USA -4). 
460 Sections 3(4), 3(8), and 3(11), 2019 Hong Kong Human Rights and Democracy Act, (Exhibit USA -4). 
461 Section  4(2), 2019 Hong Kong Human Rights and Democracy Act, (Exhibit USA -4). 
462 2020 H ong Ko ng Policy Act Report, (Exhibit USA -5), pp. 1-2. WT/DS597/R  
 
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  whether Hong Kong laws comply  with the Basic Law". Second, a statement issued by the Chinese 
government's Central Government Liaison Office (CGLO) on 17  April 2020, "claiming that CGLO and 
the central government's Hong Kong and Macau Affairs Office in Beijing are not bound by a provis ion 
of the Basic Law which states that 'no department of the Central People's Government … may 
interfere with the affairs' of Hong Kong". Third, that on 22 May 2020, the National People's Congress 
proposed to "unilaterally and arbitrarily impose national s ecurity legislation on Hong Kong", which 
the report describes as "a procedural step which contradicts the spirit and practice of the Sino -British 
Joint Declaration and the One Country, Two Systems Framework". The report also refers to the 
protests that ens ued, as well as reactions from Hong Kong, China and Chinese authorities.463  
7.331.   On 14  July 2020 Executive Order 13936 was issued. The US president determined that Hong 
Kong, China was "no longer sufficiently autonomous to justify differential treatment in rela tion to 
[China (PRC)] under the particular United States laws and provisions thereof set out in this order". 
Executive Order 13936  refers to the events described in the 2020 Hong Kong Policy Act Report, and 
supplements them indicating that "China has since  followed through on its threat to impose national 
security legislation on Hong Kong". On that basis, the US president determined that "the situation 
with respect to Hong Kong, including recent actions taken by the PRC to fundamentally undermine 
Hong Kong' s autonomy, constitutes an unusual and extraordinary threat, which has its source in 
substantial part outside the United  States , to the national security, foreign policy, and economy of 
the United  States ", and declared "a national emergency with respect to  that threat".464 
7.332.    Through Executive Order 13936 several  measures were put in place in response to the 
situation in Hong Kong, China. Notably, as explained above, it mandated the suspension of 
differential treatment regarding country of origin marking at is sue in this dispute. Other measures 
included : suspending certain US laws ; amending implementing regulation s on immigration, and 
arms and exports control ; and  suspending or terminating extradition treaties, provision of training 
to members of the Hong Kong Police Force or other Hong Kong security services, cooperation on 
scientific and educational matters, and tax exemptions. Action was mandated regarding Hong Kong 
citizens seeking refugee status in the United  States  for humanitarian reasons. Measures c oncerning 
individuals or entities linked to certain types of events in Hong Kong,  China  including asset blocks, 
were also introduced.465  
7.333.   The 2020 Hong Kong Autonomy Act was enacted, "to impose sanctions with respect to 
foreign persons involved in the erosi on of certain obligations of China with respect to Hong Kong".466 
The US Congress referred to instances where "the Government of China has undertaken actions that 
have contravened the letter or intent"467 of some of the obligations in the 1984 Sino -British Joint 
Declaration and the Basic Law. In particular, the findings refer to judicial independence, maintaining 
the social and economic system in Hong Kong,  China,  human rights, and the democratic system in 
Hong Kong , China . The US Congress further indicates t hat its findings are "deeply concerning to the 
people of Hong Kong, the United  States , and members of the international community who support 
the autonomy of Hong Kong".468  
7.334.   The 2020 Hong Kong Autonomy Act refines the framework to establish penalties with r espect 
to foreign individuals and to entities found to be involved in the contravention of the obligations of 
China under the 1984 Sino-British  Joint Declaration and the Basic Law and the financial institutions 
transacting with those foreign individuals or  entities.469 At the same time, t he imposition of sanctions 
on the importation of goods  from Hong Kong, China  is expressly excluded from the authority 
provided in this Act.470 Moreover, it is stated that "[n]othing in this Act shall be construed as an 
author ization of military force against China".471  
 
463 2020 H ong Kong  Policy Act Report, (Exhibit USA -5), pp. 2-3. 
464 Introduction, Executive Order 13936, (Exhibit s USA-2, HKG -13). 
465 Sections 2 to 8, Executive Order 13936, (Exhibit s USA-2, HKG -13). See Revisions to the Export 
Administration Regulations: Suspension of License Exceptions for Hong Kong, 85 Fed. Reg. 45998 (July  31, 
2020), (Exhibit USA -8). 
466 Title, 2020 Hong Kong Autonomy Act , (Exhibit USA -9) 
467 Sections 3(9) to 3(16), 2020 Hong Kong Autonomy  Act, (Exhibit USA -9). 
468 Section  3(16), 2020 Hong Kong Autonomy Act, (Exhibit USA -9).  
469 Sections 5, 6, 7, and 8, 2020 Hong Kong Autonomy Act, (Exhibit USA -9).  
470 Section  8(d)(1), 2020 Hong Kong Autonomy Act, (Exhibit USA -9).  
471 Section  10, 2020 Hong Kong Autonomy Act, (Exhibit USA -9).  WT/DS597/R  
 
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  7.335.   On 31  March  2021, the State Department issued the 2021 Hong Kong Policy Act Report, on 
the conditions in Hong Kong from June 2020 to February 2021. This report, like the one for 2020, 
considers that new actions taken by China led to Hong Kong , China  not warranting "treatment under 
U.S. law in the same manner as U.S. laws were applied to Hong Kong before July  1, 1997".472 The 
report bases its conclusion on three main elements . First, by unilaterally imposing the Na tional 
Security Law, China "dramatically undermined rights and freedoms in Hong Kong". Second, following 
the imposition of the National Security Law, Hong Kong police arrested at least 99 opposition 
politicians, activists, and protestors on charges of sece ssion, subversion, terrorism, and collusion 
with a foreign country or external elements. Third, the Hong Kong Government used COVID -19-
related restrictions to deny authorizations for public demonstrations and postponed Hong Kong's 
Legislative Council elections for at least one year.473  
7.336.   The report provides additional details on the State Department's assessment of the situation 
in Hong Kong, China in several areas.474 Detailed views expressed in the report on two topics are of 
particular relevanc e to our analysis of whether an emergency in international relations exists in the 
current context . The first concerns areas of remaining autonomy. Salient among those are: Hong 
Kong, China 's continued exercise of its "authority in the implementation of co mmercial agreements"; 
the continuation of the Hong Kong , China's  legal system being based on common law, despite 
concerns about the judicial system's continued independence; the protection of property rights in 
law and practice; the maintenance of Hong Kon g, China 's own currency pegged to the US dollar; 
Hong Kong's autonomous monetary policy; and Hong Kong , China 's participation , separately from 
China,  in 24 international organizations and multilateral entities, including the Financial Action Task 
Force, th e Asia -Pacific Economic Cooperation Forum, the International Olympic Committee, and the 
WTO.475  
7.337.   The second topic concerns US – Hong Kong , China  Cooperation and Agreements. The report 
notes that the United  States  and Hong Kong, China continue to maintain several bilateral 
agreements regarding issues such as taxation, parcel delivery, and air services. The report refers to  
the United  States ' notifi cation of the suspension or termination of extradition agreements and tax 
exemptions in August 2020, pursuant to Executive Order 13936. The report further notes that Hong 
Kong, China's Government notified the United  States  of its purported suspension of th e agreement 
concerning mutual legal assistance in criminal affairs. The lack of engagement or cooperation on law 
enforcement and related areas is also noted.476  
7.338.   The US instruments reviewed above show the following key aspects for our analysis of the 
existe nce of an emergency in international relations under Article  XXI(b)(iii). First, the United  States , 
as a matter of foreign policy, attaches great importance to the protection of human rights and 
democracy generally, and in Hong Kong, China particularly. Se cond, the United  States  considered 
that certain actions by the Government of China with respect to Hong Kong , China  and by Hong 
Kong, China's authorities, undermined human rights and democracy in Hong Kong , China  and raised 
serious concern s. Third, in resp onse to such action, the United  States  took certain measures that 
include the origin marking requirement at issue in this dispute, amending US laws and regulations 
as they apply to Hong Kong , China  in areas such as immigration and arms and exports control,  as 
well as imposing sanctions on individuals or entities linked to certain events in Hong Kong , China . 
Fourth, t he 2020 Hong Kong Autonomy Act expressly excluded restrictions on importations of Hong 
Kong, China products from the sanctions to be applied an d underscored that its terms should not be 
construed as an authorization to use military force against China.  Fifth, the United  States  and Hong 
Kong, China continue to maintain several bilateral agreements regarding issues such as taxation, 
parcel delivery , and air services . Sixth,  Hong Kong, China continues to participate , separately from 
China,  in 24 international organizations and multilateral entities, including the WTO.  
 
472 2021 H ong Kong  Policy Act Report, (Exhibit USA -6), pp. 1 -2. 
473 2021 Hong Kong  Policy  Act Report, (Exhibit USA -6), p. 2. See The Law of the People's Republic of 
China on Safeguarding National Security in the Hong K ong Special Administrative Region, G.N.(E) 72 of 2020, 
(Exhibit  USA-117).  
474 2021 H ong Kong  Policy  Act Report, (Exhibit USA -6), pp. 2 -12. 
475 2021 H ong Kong  Policy Act Report, (Exhibit USA -6), p. 12.  
476 2021 H ong Kong Policy Act Report, (Exhibit  USA-6), p. 12 . WT/DS597/R  
 
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  Reports and statements  of United  States ' officials  on the situation in Hong Kong, 
China  
7.339.   We next turn to the second category of evidence that the United  States  submitted. Such 
evidence includes some government reports and statements of government officials, referring to the 
situation in Hong Kong , China  between July 2020 and December  2021.  
7.340.   The United  States  exhibited the US Department of State Hong Kong 2020 Human Rights 
Report, which refers to events regarding the protection of human rights and the democratic system 
in Hong Kong, China.477 In our view, thi s report , while providing an assessment by the United  States  
of the human rights situation in Hong Kong, China, does not offer meaningful information on  the 
specific issue of how  the human rights situation in Hong Kong, China has affected international 
relations  between the United  States , Hong Kong, China and China .  
7.341.   Also on record is a press statement of the US secretary of state on the amendment to the 
electoral system in Hong Kong, China of March 2021. According to the secretary of state "[t]he 
United  States condemns the PRC's continuing assault on democratic institutions in Hong Kong", and 
called on "the PRC to uphold its international obligations and commitments and to act consistently 
with Hong Kong's Basic Law". The statement further remarked that the  "United  States  stands united 
with our allies and partners in speaking out for the rights and freedoms of people in Hong Kong".478  
7.342.   The last statement submitted by the United  States  is from the US president. The statement 
referring to the events of June 202 1 regarding a media outlet in Hong Kong, China, remarked that 
"[p]eople in Hong Kong, have the right to freedom of the press. Instead, Beijing is denying basic 
liberties and assaulting Hong Kong's autonomy and democratic institutions and processes, 
inconsi stent with its international obligations. The United  States  will not waver in our support  of 
people in Hong Kong and all those who stand up for the basic freedoms all people deserve ".479  
7.343.   The reports and statements referred to above, clearly underscore the importance that the 
United  States attach es to the protection of human rights and democracy in Hong Kong, China. 
Although some of these documents post -date the adoption of the origin marking requirement, they 
are informative of the concern that the United  States  expressed with respect to the  events  in Hong 
Kong, China.  
Statements of other countries on the situation in Hong Kong, China  
7.344.   Regarding the third category of evidence , the United  States  submitted a statement from the 
Media Freedom Coalition480, and the views expressed by Canada and the European  Union  in their 
submissions in these proceedings.481  
7.345.   The Media Freedom Coalition statement is dated 8  February  2022, over a year after the 
adoption of the origin marking requirement. This statement signed  by the governments of 
21 countries, expresses "deep concern at the Hong Kong and mainland Chinese authorities' attacks 
on freedom of the press and their suppression of independent local media in Hong Kong". This 
sentiment  relate s to events following the a doption of the National Security Law. The statement 
further notes that these "ongoing actions further undermine confidence in Hong Kong's international 
reputation through the suppression of human rights, freedom of speech and free flow and exchange 
of opin ions and information".482  
 
477 Hong Kong 2020 Human Rights Report, (Exhibit USA -112).  
478 "Assault on Democracy in Hong Kong ", Press Statement, Anthony J. Blinken, Secretary of State, 
(Exhibit USA -125).  
479 Statement by President Joe Biden on Hong Kong's Apple Daily, The White House Pr ess Releases  
(June  24 2021), (Exhibit USA -134).  
480 United S tates' opening statement at the second meeting of the Panel, para.  3 (referring to Media 
Freedom Coalition Statement on Closure of Media Outlets in Hong Kong , Office of the Spokesperson, U.S. 
Department of State (February  9, 2022), (Exhibit USA -210)).  
481 United States' response to Panel question No.  110, para.  160. 
482 Media Freedom , Coalition Statement on Closure of Media Outlets in Hong Kong, Office of the 
Spokesperson, U.S. D epartment of State  (February  8, 2022), (Exhibit USA -210).    WT/DS597/R  
 
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  7.346.   Canada's statement referred to by the United  States  is that " Canada wishes to take this 
opportunity to join the United  States  and the European  Union  in expressing serious concern 
regarding recent developments in Hong Kong that hav e affected its degree of autonomy from 
mainland China and the respect for rights and freedoms in Hong Kong ".483 Canada did not submit 
any evidence in support of this view. However, evidence on record suggest s that Canada, similar to 
the United  States , suspe nded extradition treaties with Hong Kong, China .484  
7.347.   In turn, the European  Union 's view referred to by the United  States  is that " the EU shares 
the concerns of the United  States  regarding the degree of autonomy of Hong Kong and regarding 
the respect for protected rights and freedoms in Hong Kong ".485  
7.348.   We further note in this context  that the European  Union , itself, in this proceeding,  submitted 
statements of officials in support  of its view referred to above.486 One of those statements announced 
that the European  Union , similar to the United  States , adopted a response package that included 
measures regarding : exports  of specific sensitive equipment and technologies;  extradition ; asylum, 
migration, visa, and residency policy; scholarships and academic exchanges involving Hong Kong, 
China students and universities; and support to civil soci ety.487 
7.349.   The statement referred to by the United  States  and the evidence on record confirm that 
some countries and entities expressed high levels of concern about the events in Hong Kong, China, 
especially on how such events affect the human rights of its residents and its democratic system , 
and adopted certai n measures in response  vis-à-vis Hong Kong, China . 
Press articles  
7.350.   The last category of evidence submitted by the United  States  is press articles. Most of th ose 
press articles concern reports on the human rights situation in Hong Kong, China, including on 
limitations on freedom of the press, freedom of speech, democratic elections, and independence of 
the judiciary.488 These articles  highlight events in Hong Kong, China during the period indicated 
 
483 Canada's third -party statement, para.  3, referred to in United States' response to Panel question 
No. 110, para.  160, fn 126.  
484 "Hong Kong security law: Four students arrested for 'inciting se cession '", BBC News  (July 30, 2020), 
(Exhibit USA -130), p. 4.  
485 European  Union 's third -party submission, para.  16, referred to in United States' response to Panel 
question No.  110, para.  160, fn 126. See also European  Union 's third -party statement, para.  39, where the 
European  Union  indicates there are significant elements which can indicate that the situation to which the 
United States sought to respond by its measures is one of an "emergency in international relations" within the 
meaning  of Article XXI(b)(iii) of the GATT  1994. 
486 Declaration by the High Representative, on behalf of the European  Union , on the announcement by 
China 's National People 's Congress spokesperson regarding Hong Kong (22  May 2020), (Exhibit EU -1); Hong 
Kong: Counci l expresses grave concern over national  security law  (28 July 2020), (Exhibit EU -2); Hong Kong: 
Declaration by the High Representative on behalf of the EU on the disqualification of Members of the Hong 
Kong Legislative Council security law (12  November  2020), (Exhibit EU -3); and Hong Kong: Statement by the 
High Representative / Vice -President Josep Borrell on the changes to Hong Kong's electoral system 
(9 June 2021), (Exhibit EU -4). 
487 Hong Kong: Council expresses grave concern over national security law (28 July 2020), 
(Exhibit  EU-2). See also  Hong Kong: Statement by the High Representative / Vice -President Josep Borrell on 
the changes to Hong Kong's electoral system (9  June 2021), (Exhibit EU -4) (where the High Representative 
indicates that "[t]he EU will continue implementing the initial response package agreed in July 2020") . 
488 See "Leading democracy campaigner Nathan Law leaves Hong Kong ", The Guardian  (July 2, 2020), 
(Exhibit US A-118); "Pro-democracy leader Nathan Law leaves Hong Kong ", CNN (July 3, 2020), 
(Exhibit  USA-119); "Hong Kong Activists Sentenced For Their Role In Anti -Government Protest ", NPR 
(December  2, 2020), (Exhibit USA -120); "Beijing's Hong Kong office warns pro -democracy pol l could violate 
new security law ", Reuters  (July 13, 2020), (Exhibit USA -121); "Hong Kong bars 12 opposition candidates from 
election ", BBC News  (July 30, 2020), (Exhibit USA -122); "Hong Kong opposition lawmakers all quit after four 
members ous ted", The Guardian  (November  11, 2020), (Exhibit USA -123); "EU calls for 'immediate release  of 
Hong Kong activists ", AP News  (January  6, 2021), (Exhibit USA -124); "Hong Kong announces more electoral 
system changes favouring pro -Beijing camp ", Reuters (April  13, 2021), (Exhibit  USA-126); "Hong Kong Says 
Common Protest Slogan Calling for 'Revolution ' is Now Illegal Under National Security Law ", Time (July 
3, 2020), (Exhibit USA -127); "Hong Kong bans protests anthem in schools as fears over freedo ms intensify ", 
Reuters  (July 8, 2020), (Exhibit USA -129); "Hong Kong security law: Four students arrested for 'inciting 
secession '", BBC News  (July 30, 2020), (Exhibit USA -130); "Prominent Hong Kong Publisher Arrested Under 
New National Security Law ", NPR (August  10, 2020), (Exhibit USA -131); "Hong Kong: Jimmy Lai sentenced to 
14 months for pro -democracy protests ", BBC News  (April  16, 2021), (Exhibit USA -132); "Two Appl e Daily 
 WT/DS597/R  
 
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  above, however, except those mention ed below, th ey do not indicate how such events impacted 
international relations, including those between the United  States , on the one hand, and China and 
Hong Kong, China, on the other.  
7.351.   Some press articles do, however, refer to reports of reactions of certain governm ents with 
respect to the events in Hong Kong, China. Some governments were reported to have announced 
immigration measures to ease emigration from Hong Kong, China489; to be reviewing or suspending 
extradition treaties with Hong Kong, China and "offering mo re visas to its citizens"; cautioning 
citizens over an "increased risk of arbitrary detention in Hong Kong"490; expressing concern with 
respect to the situation in Hong Kong, China491; and condemning the National Security Law and 
ensuing actions in Hong Kong , China.492 
7.352.   The press articles on record report that certain countries share a high level of concern with 
respect to the human rights situation in Hong Kong, China and its demo cratic system, and that some 
countries adopted certain measures  in response  vis-à-vis Hong Kong, China . More generally, these 
press articles indicate that the human rights situation in Hong Kong, China has featured as a concern 
in public opinion  within a number of WTO Members . 
7.5.4.2.2.2   Overall assessment  
7.353.   As we have noted above, we must examine  the specific circumstances of this dispute in light 
of the evidence and arguments on record. In the spe cific context before us, we consider that i t is 
clear that events in Hong Kong, China, as pointed to by the United  States , are, and remain, the 
subject of tensions and expressions of concern at the international level. It is also evident that the 
United States  has taken certain actions in response to this situation, and specifically the measure at 
issue in this dispute ; other countries have also a dopted measures in response to the events in Hong 
Kong, China  vis-à-vis Hong Kong, China . Accordingly, looked at broadly , these events have impacted 
on international relations between China, Hong Kong, China and a range of other WTO Members, 
some of whom h ave adjusted policy settings. At the same time, based on our review of all the 
evidence on record , we do not consider that the situation the United  States  points to meets the 
requisite level of gravity to constitute an emergency in international relations under 
Article  XXI(b)(iii).  
7.354.   In particular we  are of the view that  the following considerations  tend to run counter to a 
conclusion that the situation h as escalated to a point of breakdown or near -breakdown in the 
relations between states or other participan ts in inter national relations. We recall that the evidence 
before us  shows that the United  States  and other Members took measures vis-à-vis Hong Kong, 
China (there is no evidence before us that there were measures taken vis-à-vis China). Those 
measures ado pted vis-à-vis Hong Kong, China targeted only certain areas of their relations  and not 
others. Indeed , the evidence on record shows that the United  States  and Hong Kong, China's 
 
executives charged with collusion with foreign country ", Reuters  (June  18, 2021),  (Exhibit  USA-133); "Nearly 
130 civil servants fail to take required pledge of allegiance to Hong Kong Government with most facing 
dismissal ", South China Morning Post  (April  19, 2021), (Exhibit USA -135); "Hong Kong teachers' union to 
disband due to 'drastic' political situation ", Reuters  (August  10, 2021), (Exhibit USA -137); "Hong Kong 
University orders removal of Tiananmen Square massacre statue ", The Guardian  (October  8, 2021), (Exhibit 
USA-197); "China Loyalty Oath Drives 72% of Hong Kong Councillors From Seats ", Bloomberg News  
(October  21, 2021), (Exhibit USA -198); "Amnesty International to close Hong Kong offices due to national 
security law ", The Guardian  (October  25, 2021), (Exhibit USA -199); "Hong Kong police tell marathon runners 
to cover up 'political' clothing and tattoos ", The Guardian  (October  25, 2021), (Exhibit USA -200); and "Hong 
Kong pro -democracy news site closes after raid, arrests" AP News  (December  29, 2021), (Exhibit USA -209).  
See also The Government of the Hong Kong Speci al Administrative Region, Government Statement (July 2, 
2020), (Exhibit USA -128).  
489 "Leading democracy campaigner Nathan Law leaves Hong Kong ", The Guardian  (July 2, 2020), 
(Exhibit USA -118), p. 2.  
490 "Beijing's Hong Kong office warns pro -democracy pol l could violate new security law ", Reuters  
(July 13, 2020), (Exhibit USA -121), p. 3; "Hong Kong security law: Four students arrested for 'inciting 
secession '", BBC News  (July 30, 2020), (Exhibit USA -130), p. 4.  
491 "Beijing's Hong Kong office warns pro-democracy pol l could violate new security law ", Reuters  
(July 13, 2020), (Exhibit USA -121), pp. 2 -3. 
492 "Hong Kong bars 12 opposition candidates from election ", BBC News  (July 30, 2020), 
(Exhibit  USA-122), p. 3; "Hong Kong opposition lawmakers all quit after four members ousted ", The Guardian  
(November  11, 2020), (Exhibit USA -123) pp. 2-3. WT/DS597/R  
 
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  international relations continue to involve cooperati on in a number of policy areas .493 We further 
note that  trade has carried on between the United  States  and Hong Kong, China, largely as before, 
with the except ion of the origin marking requirement  and som e export controls .494 In our view, all 
of this militates against a conclusion of a breakdown or near -breakdown in international relations 
that we have found to be consonant with an emergency in such relations . 
7.355.   We also find it helpful to further compare the situation before  us with the previous cases 
where situations were found to constitute an emergency in international relations, as earlier 
discussed495, to the extent that these may assist in determin ing whether the United  States  has 
demonstrated that the si tuation at issue is one that falls under Article  XXI(b)(iii).  
7.356.    The situation between Ukraine and Russia in 2014 as considered by the panel  in Russia – 
Traffic in Transit  involved a significant breakdown in relations between the two disputing Members, 
which had been the subject of a resolution in the UN General Assembly  that considered the situation 
as involving armed conflict . In contrast , the 2021 Hong Kong Policy Act Re port, refers to the areas 
of ongoing cooperation between the United  States  and Hong Kong, China.496 Moreover, contrary to 
sanctions  imposed on Russia following the crisis in 2014, there is no evidence on record of the 
United  States  or other countries imposi ng sanctions on the importation of goods from Hong Kong, 
China.497 Goods from Hong Kong, China, although required to be marked as "China" origin, continue 
to be subject to the same tariff treatment as prior to the imposition of the origin marking 
requiremen t.498 We therefore do not see a parallel between the two situations as we understand the  
United  States  to suggest.499 
7.357.   Turning to a comparison with the second case, there is no evidence or argument on the 
record that the United  States  or any other Member has severed its diplomatic, consular, or economic 
relations with China or Hong Kong, China. Such a step was among the considerations that, in the 
view of the panel in Saudi Arabia – IPRs, demonstrated that the situation between Qatar and Saudi 
Arabia constitut ed an emergency in international relations. While Saudi Arabia's allegations against 
Qatar resulted in a total collapse of their relations , including economic relations, the events in Hong 
Kong, China condemned by the United  States  and other Members have not had an equivalent effect 
on the relations between the United  States  and other Members, on the one hand, and China and 
Hong Kong, China, on the other hand.  
7.358.   In summary , we consider that although there is evidence of the United  States  and other 
Memb ers being highly concerned about the human rights situation in Hong Kong, China, the situation 
has not escalated to a threshold of requisite gravity to constitute an emergency in  international 
relations  that would provide justification for taking actions t hat are inconsistent with obligations 
under the GATT  1994.  
 
493 2021 H ong Kong  Policy Act Report, (Exhibit USA -6), p. 12.  
494 See USCBP Guidance on Marking of Goods of Hong Kong – Executive Order 13936, (Exhibit  HKG-12), 
which implies that trade is still ongoing  between the United States and Hong Kong, China. See also Hong Kong, 
China's comments on United States ' response to question No.  125, paras.  104-105. 
495 See paras.  7.313  and 7.314  above . 
496 2021 H ong Kong  Policy  Act Report, (Exhibit USA -6), p. 12.  
497 2020 Hong Kong Autonomy Act, (Exhibit USA -9), as set out in Section  8(d)(1), the imposition of 
sanctions on the importation of goods from Hong Kong, China is excluded from the sanctions authorized under 
this Act.  
498 USCBP Guidance on Marking of Goods of Hong Kon g – Executive Order 13936, (Exhibit  HKG-12) 
(where in response to the question "How does the marking rule affect the country of origin for purposes of 
assessing ordinary duties under Chap 1 -97 of the Harmonized Tariff Schedule of the United States (HTSUS) or 
temporary or additional duties under Chapter 99 of the HTSUS?" it is stated that "[t]he change in marking 
requirements does not affect country of origin determinations for purposes of assessing ordinary duties under 
Chapters 1 -97 of the HTSUS or tempora ry or additional duties under Chapter 99 of the HTSUS").  
499 United States' response to Panel question No.  120, para.  220, where the United States observed: 
"[i]n Russia – Traffic in Transit , Russia invoked Article XXI(b)(iii) and the panel found there to be  an 
emergency in international relations, noting that the situation was "recognized by the UN General Assembly as 
involving armed conflict. " Here, the United States has invoked Article XXI(b) after having taken action as an 
urgent response to an overseas c risis – which was (and is) a matter of public knowledge, as evidenced by the 
extensive publicly available evidence that the United States has submitted regarding the factual basis for the 
measures at issue and the U.S. consideration that the actions it was  taking were necessary for the protection 
of its essential security interests ". (footnote omitted)   WT/DS597/R  
 
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  7.359.   Finally, we underscore th at in arriving at this conclusion, we are in no way questioning the 
importance placed by the United  States  and other WTO Members, on the protection of human rights  
and dem ocratic principles, or other values or interests they consider important, which may find 
reflection in their articulation of their essential security interests. At the same time, measures 
adopted by Members to advance such interests, if defended on the bas is of Article  XXI, will need to 
meet the conditions for its application , which WTO panels will continue  to have the responsibility to 
assess in any dispute  brought by  WTO Members  to the DSB  in relation thereto.  
7.5.5   Conclusion on Article  XXI(b) (iii) of the GATT  1994  
7.360.   Based on the foregoing, we conclude that the United  States  has not demonstrated that the 
situation at issue constitutes an emergency in international relations, and therefore the origin 
marking requirement is not justified under Article  XXI(b)(iii).  
7.361.   We recall that our duty is to assist the DSB in securing a positive solution to  this dispute, 
rather than clarifying every issue of systemic importance arising from this dispute. Having reached 
the conclusion that the situation at issue does n ot constitute an emergency in international relations, 
we do not need to assess the measure  under the remaining elements of Article  XXI(b).  
7.6  Other claims under the GATT  1994 , the ARO, and the TBT  Agreement   
7.362.   We recall that Hong Kong, China also raised claim s under Article  I:1 of the GATT  1994, 
Articles 2(c)  and 2(d) of the ARO, and Article  2.1 of the TBT  Agreement . 
7.363.   In this regard , we note that Article  3.7 of the DSU provides that the "[a]im of the dispute 
settlement mechanism is to secure a positive solution to a dispute ". In turn, Article  11 of the DSU 
provides that one of the functions of panels is to " make such other findings as will assist the DSB in 
making the recommendations or in giving the rulings provided for in the covered agreements ". 
Panel s are therefore free to limit their findings to those needed to assist the DSB in making 
recommendations or rulings on each dispute.500  
7.364.   In this context, we agree with the Appellate  Body that to provide a partial resolution of the 
matter at issue would be a n exercise of false judicial economy. Panels should therefore address 
those claims for which a finding is necessary in order to enable the DSB to make sufficiently precise 
recommendations and rulings so as to allow for prompt compliance by a Member with th ose findings 
"in order to ensure effective resolution of disputes to the benefit of all Members".501 We note that, 
on this basis, the Appellate  Body found that a panel exercised false judicial economy by (a) not 
making findings on a claim that would have of fered a different remedy from the one resulting from 
the claims in respect of which the pane l made findings502; and (b) not making findings  on claims 
that had a different scope and content.503 
7.365.   We have found that the origin marking requirement is inconsistent  with Article  IX:1 
(MFN obligation)  of the GATT  1994 and that this measure is not justified under Article  XXI(b)(iii).504 
We do not consider that an additional finding under Article  I:1505 would be necessary to assist the 
 
500 See Appellate  Body Reports, US – Wool Shirts and Blouses , DSR 1997:  I, pp. 338-341 (where the 
Appellate  Body upheld the panel's exercise  of judicial economy in that dispute);  and India – Patents (US) , 
para. 87. 
501 Appellate  Body Report, Australia – Salmon , para.  223. 
502 Appellate  Body Report, EC – Export Subsidies on Sugar , para. 335 (whe re the Appellate  Body 
considered that by exercising judicial economy on claims under Article 3.1(a) of the SCM  Agreement , the panel 
had precluded the possibility of a remedy being made available to the complaining parties, pursuant to 
Article  4.7 SCM  Agreement ). 
503 Appellate  Body Report, US – Tuna II (Mexico) , para.  405 (where the A ppellate  Body considered that 
the panel engaged in false judicial economy by not examining claims under Articles I:1 and III:4 of the 
GATT  1994 after having found that the measure at issu e was not inconsistent with Article 2.1 of the 
TBT Agreement. The Appellate  Body disagreed with the panel that Articles I:1 and III:4 of the GATT  1994 are 
substantially the same as Article 2.1 of the TBT  Agreement ). 
504 See para s. 7.251 -7.252  (regarding our findings under Article IX:1)  and para.  7.360  (regarding our 
findings under Article XXI(b)(iii)) above . 
505 Article I:1 of the GATT  1994 provides:  
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  DSB in making sufficiently precise recommendations and rulings . In our view, our findings under 
Article  IX:1 capture the discriminatory dimension of the origin marking requirement that Hong Kong, 
China has challenged under Article  I:1, and we have found it not to be justified under 
Article  XXI(b)(iii).  
7.366.   We are cognizant that claims under Article  2.1 (non-discrimination obligations regarding 
technical regulations)506 of the TBT  Agreement  and non -discrimination provisions in the GATT  1994, 
such as Article  IX:1, d iffer in some respects .507 However, s imilar to our view with respect to claims 
under Article  I:1 of the GATT  1994, we do not consider that findings on an MFN violation  under 
Article  2.1 of the TBT  Agreement  would be necessary to assist the DSB in making suf ficiently precise 
recommendations and rulings. We do not see, and the parties have not argued, any significant 
difference on how the United  States  could implement the DSB's recommendations and rulings  if they 
were based solely on a finding of inconsistency  with Article  IX:1, when compared with a finding of 
inconsistency both under Article  IX:1 and Article  2.1 of the TBT  Agreement . 
7.367.   Hong Kong, China brought claims under the ARO with respect to Articles 2(c)508 (with respect 
to rules of origin not requiring certain condition s for the determination of the country of origin ) and 
2(d) (a non -discrimination provision on the application of rules of origin).509 We recall that Hong 
Kong, China's arguments that the origin marking requirement is inconsistent with the ARO are based 
on the factual premise that the United  States  determines that the products subject to the origin 
marking requirement originate in China. As we note d above, o ur finding that the United  States  
determines their origin to be Hong Kong, China  means that the factual basis for contending that the 
present dispute involves "rules of origin" within the meaning of Article  1 of the ARO is incorre ct.510 
We therefo re do not consider it necessary to make additional findings under the ARO to assist the 
DSB in making sufficiently precise recommendations and rulings . 
7.368.   In light of the above, we exercise judicial economy on Hong Kong, China's claims that the 
origin marking  requirement is inconsistent with Article  I:1 of the GATT  1994, Articles 2(c) and 2(d) 
of the ARO , and Article  2.1 of the TBT  Agreement . 
8  CONCLUSIONS AND RECOMMENDATION  
8.1.  For the reasons set forth in this Report, the Panel concludes as follows:  
a. Article  XXI(b) is not entirely self-judging insofar as the unilateral determination granted 
to the invoking Member through the phrase "which it considers" in the chapeau of that 
 
With respect to customs duties and charge s of any kind imposed on or in connection with 
importation or exportation or imposed on the international transfer of payments for imports or 
exports, and with respect to the method of levying such duties and charges, and with respect to 
all rules and form alities in connection with importation and exportation, and with respect to all 
matters referred to in paragraphs 2 and 4 of Article III, any advantage, favour, privilege or 
immunity granted by any Member to any product originating in or destined for any o ther country 
shall be accorded immediately and unconditionally to the like product originating in or destined 
for the territories of all other Members.  
506 Article 2.1 of the TBT  Agreement  provides:  
Members shall ensure that in respect of technical regulati ons, products imported from the 
territory of any Member shall be accorded treatment no less favourable than that accorded to like 
products of national origin and to like products originating in any other country.  
507 As noted in para.  7.14 above, w hile Article IX:1 applies to origin marking requirements  only, the 
TBT Agreement  applies more generally to a wide variety of technical regulations , including those providing  
generally for "marking …. requirements" (Annex  1.1, second sentence of the TBT  Agreement). Furthermore, 
Article 2.1 of the TBT  Agreement  has been interpreted to allow for the consideration of legitimate objectives  in 
the assessment of less favourable trea tment , whereas the legal standard in Article IX :1 itself does not  include 
such consideration  (see para.  7.206  above  and Appellate  Body Report, US – Tuna II (Mexico) (Article 21.5 – 
Mexico) , paras.  7.277 -7.278  (with respect to the difference of analysis under Article  2.1 of the TBT  Agreement  
and Artic les I:1 and III:4 of the GATT  1994)). 
508 Article 2(c) of the A RO provides, in relevant part:  
[R]ules of origin  … shall not … require the fulfilment of a certain condition not related to 
manufacturing or processing, as a prerequisite for the determination o f the country of origin.  
509 Article 2(d) of the AR O provides, in relevant part:  
[T]he rules of origin that they apply to imports and exports … shall not discriminate between 
other Members, irrespective of the affiliation of the manufacturers of the good concerned . 
510 See para.  7.226  above.  WT/DS597/R  
 
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  provision does not extend to the subparagraphs. Instead, the subparagraphs are subject  
to review by a panel.  
b. The origin marking requirement is inconsistent with Article  IX:1 of the GATT  1994 because 
it accords to products of Hong Kong, China treatment with regard to marking requirements 
that is less favourable than the treatment accorded t o like products of any third country.  
c. The United  States  has not demonstrated that the situation at issue constitutes an 
emergency in international relations, and therefore the origin marking requirement is not 
justified under Article  XXI(b)(iii).  
8.2.  The Panel exercises judicial economy on Hong Kong, China's claims that t he origin marking 
requirement is inconsistent with Article  I:1 of the GATT  1994, Articles 2(c) and 2(d) of the ARO, and 
Article  2.1 of the  TBT Agreement . 
8.3.  Under Article  3.8 of the DSU, in cases where there is an infringement of the obligations 
assumed under  a covered agreement, the action is considered prima facie  to constitute a case of 
nullification or impairment. We conclude that, to the extent that the measure at issue is inconsistent 
with Article  IX:1 of the GATT  1994, it has  nullified or impaired benef its accruing to Hong Kong, China 
under that agreement.  
8.4.  Pursuant to Article  19.1 of the DSU, we recommend that the United  States  bring its measure 
into conformity with its obligations under the GATT  1994. 
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