UNITED STATES – ORIGIN MARKING REQUIREMENT REPORT OF THE PANEL
Document: REPORT OF THE PANEL
Date: 21 December 2022
Document codes: WT/DS597/R
Complainant: Hong Kong
Respondent: U.S.
Third parties: Brazil, Canada, China, EU, India, Japan, South Korea, Norway, Russia, Singapore, Switzerland, Turkey, Ukraine
Dispute stage: Panel
Agreements cited: Art. I:1, IX:1, X:3(a)  GATT 1994Art. 2(c), 2(d), 2(e)  Rules of OriginArt. 2.1  Technical Barriers to Trade (TBT)

UNITED STATES – ORIGIN MARKING REQUIREMENT
REPORT OF THE PANEL

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

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,
 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, and Corr.1, adopted 16 February 2001,
DSR 2001:V, p. 1779
Argentina – Import
Measures
Panel Reports, 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 Reports, 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 /

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 Automotive Industry,
WT/DS139/R, WT/DS142/R, adopted 19 June 2000, as modified by Appellate Body
Report WT/DS139/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/DS276/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 Reports, 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 modified
(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

Short Title Full Case Title and Citation
EC – Bananas III Panel Reports, 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 the
European Communities under Article 22.6 of the DSU, WT/DS27/ARB/ECU,
24 March 2000, DSR 2000:V, p. 2237
EC – Chicken Cuts Appellate Body Report, European Communities – Customs Classification of Frozen
Boneless Chicken Cuts, WT/DS269/AB/R, WT/DS286/AB/R, adopted
27 September 2005, and Corr.1, DSR 2005:XIX, p. 9157
EC – 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 Film 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 modified 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 terminated 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/DS371/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

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 15 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

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 regarding 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 Origin, 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 Fed. 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 Hong Kong
Policy Act Report
USA-6 2021 Hong Kong Policy Act Report (March 31, 2021) 2021 Hong 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 Meeting, 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 and
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 Proposed 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/Corr.1 (Jan. 20, 1948)

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, 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

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 marked "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-democracy-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

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 announces 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 Region,
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 fears 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 charged 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-security-law

1 This link, submitted by the United States, was not accessible on 29 September 2022.

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 Freedom 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

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 679
WTO World Trade Organization
WTO Agreement Marrakesh Agreement Establishing the World Trade Organization

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 Article 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/DS597/5, 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 Procedures 6, Additional
Working Procedures concerning Business Confidential Information 7, 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).
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.

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 parties 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 the 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 questions.
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
Executive 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 Additional 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 USA-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.

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 Procedures adopted by the Panel (see Annex B).
5 ARGUMENTS OF THE THIRD 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
accordance 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 its 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 submissions.
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 at 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).

United States' 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 made 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 modify 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 changes 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 Interim 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 of 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 measure 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 footnotes 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.

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 language.
6.13. Regarding paragraph 7.58 and footnote 9627, the United States 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 objective.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 only 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 Report.
31 United States' request for interim review, para. 24.
32 United States' request for interim review, para. 25.

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 the 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 States 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
under 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, including 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.

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 to 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 of the history of invocations of Article XXI both inside and outside
dispute settlement, see Panel Report, Russia – Traffic in Transit, Appendix.

changed in recent years. Several disputes concerning the security exception have been brought 42,
two panel reports have already been issued43, and others are forthcoming as we write 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 security 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 section, 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 relevant. 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 may 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, China 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, namely 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 Reports, 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, thus, 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; Appellate 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/DS544/13
(China), WT/DS547/13 (India), WT/DS552/15 (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)

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
examining 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 categories 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 three 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.
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 Reports, Indonesia – Autos,
paras. 14.61-14.63; EC – Bananas 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, paras. 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 responses to Panel question No. 4, paras. 15-17, and No. 5, paras. 18-20.
55 Panel Reports, Australia – 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".

agreements.57 We therefore disagree with Hong Kong, China that the agreement that deals most
specifically and in detail with the origin marking 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, whether
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 forward arguments under Articles 7.1 and 19
of the DSU as to why we should not make any finding of inconsistency or any recommendations.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, cannot 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 Transit, 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 this 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 any other Member, 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, privilege 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 respect 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 requires that the
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 measure 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 non-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, paras. 11 and 47.
63 United States' first written 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, paras. 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.

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 Article 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 scope and extent
of the self-judging nature of Article XXI(b). By the term "self-judging" both parties mean the same
thing, namely 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 that 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 two 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 shall 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 international 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 "discretion",
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 No. 44, paras. 140 and 150. We agree
but will mostly use the term "determination" throughout the Report.

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 with (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 Hong 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 interpretive 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 examine 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 responses to Panel question No. 44, para. 132, and No. 94, para. 96;
United States' first written submission, paras. 34 and 37.
69 Hong Kong, China's second written submission, para. 154.
70 As noted above, whether 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 panels (see Panel Reports,
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. European 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.

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" extends to the subparagraphs in Article XXI(b).
We note that the issue is not the ordinary meaning of these words 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, what 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 structure
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 assertion 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 self-
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 Reports, 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)).

"essential security interests". This is because "interests" cannot be "taken ".81 The United States
describes subparagraph (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 certain 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
qualifies 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 structure 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 submission, paras. 10-13.
88 Switzerland's third-party submission, para. 12.
89 Switzerland's third-party submission, para. 13.

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, 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"; 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 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 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;

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 subparagraphs (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, therefore, 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 United 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, the 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 there needs to be additional language to indicate that the relative
clause ends and something new starts. 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 language could possibly have made it clear which 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, notwithstanding
the potential for addi tional clarity, the existing structure of Article XXI(b) is sufficiently clear in
signalling a break between the chapeau and the subparagraphs.
7.54. Accordingly, we 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 clauses "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
discussed below.

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.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, the
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 the 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 extend 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. Whether 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" relates 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 uncontested and both sides agree that what the invoking
Member considers "necessary" is subject to unilateral determination.98
7.61. However, this does not mean that the subparagraphs are also covered by this specific use of
"considers", i.e. in combination with "nec essary". Indeed, the 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 USA-194) and The Harper's English Grammar 186-187
(Harper & Row, 1966), (Exhibit USA-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 University
Press 2002), (Exhibit USA-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 open, 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).

in time of war or other emergency in international relations" as set forth in subparagraph
ending (iii).99
7.62. In our view, therefore, the 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 "considers" (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 coordinator 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 "considers" would have to accord with the words that start the
respective subparagraphs. 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 USA-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 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;

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 establishment;

necessary for the protection of its essential security interests (iii) taken
in time of war or other emergency in international relations;

modifies the phrase "essential security interests" and therefore directly links to this phrase. 105 To
link "considers" to "relating", therefore, is not possible following the United States' reading.
7.66. Turning to subparagraph (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 "considers"
("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 "considers" 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
"considers" 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 which 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 parties
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 is 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 not 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' response 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 USA – 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.

structure in those language versions under either of the proposed readings, which we have examined
above.
7.71. For ease of reference, 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
de que

[…]
(b) to prevent any Member
from taking any action which it
considers necessary for the
protection of its essential
security interests
Membre de prendre toutes
mesures qu'elle estimera
nécessaires à la protection
sécurité:
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
fabrication;
i) a las materias fisionables o
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 on
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 war 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 versions to produce the best understanding 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 Article 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, paras. 176-177.

su seguridad" ("essential security interests"; "intérêts essentiels de sa sécurité"), 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 considers".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 alternative 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 no 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 separated 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 version, 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 written 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 we leave open 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 question 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 online, 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".

the phrase " estimer appliquées", even assuming that it is possible as a construct 118, 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 "mesures" 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 reconciled 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 Spanish 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 incorrectly, based on Spanish grammar
rules125, is separated by punctuation even in the GATS and the TRIPS Agreement versions,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
"aplicadas en tiempos de guerra o en caso 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 Spanish 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 clearly 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 interests".
125 The construction "estime … relativas a" is not correct given that "estimar" is a verb of judgment.
According to the 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 aplicadas en tiempos de guerra o en caso de grave tensión
internacional".

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
versions 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 acting 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 end 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 independently 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 versions, 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 meaning, 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 thus 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 circumscribe (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 also
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
structure 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 question 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.

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 context 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 the 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, not 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 basis 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 signé est, sauf de rares exceptions, la seule et la
plus récente expression de la volonté 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 law. 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).

(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 applying. 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
Articles 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 not 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 conflict between
Articles 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, paras. 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 demonstrating 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 responses to Panel question No. 33, paras. 88-89, No. 34, para. 90, and No. 35,
para. 32; European Union's third-party responses 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 responses 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.

7.101. Regarding Article XXI(a), we understand 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, the 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
information. 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 Articles 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 acknowledges 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 interests. 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.

(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 Article 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 provision 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
unjustifiable 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 States – 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 subparagraphs in Article XXI(b)
first, or whether the word "relating" has the 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.

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 contrasts 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, paras. 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.

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 also 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 the 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 shall 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.

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, Articles 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.

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 relevance
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, para. 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, and 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 the 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.

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 contends 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 statements 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 , Switzerland, 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 parties 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 employment 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 relevant 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 WTO 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 tariffs and other barriers to trade' is an object and purpose of the WTO Agreement,
generally, as well as of the GATT 1994.").

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 is 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 struck. 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, we 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 that extent, the WTO was entrusted with providing the multilateral framework on
international trade.171 Within the covered agreements, there are provisions, 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 recognizing
that this concept is distinct from "essential security interests" as used in Article XXI(b) it nonetheless
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 nterests 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 i n 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 Panel 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 to 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 the 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)

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 of 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 made 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 procedures 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 highlights 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 submission in DS544,
(Exhibit EU-5), paras. 58-78. Russia's third-party response to Panel question No. 39, pp. 6-7.

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 request 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 treaties 185, 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 refers 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 meeting 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 should 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 (accessed
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 always 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, Seventy-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).

were motivated by other considerations". 189 Since the application of a treaty "almost inevitably
involves some element of interpretation"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, paragraphs 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 decision is not Article XXI itself, but rather the
measure at issue (export licensing) 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 possible 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 subparagraphs 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 makes 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, including 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.

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 develops 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 Article 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 with 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 presumed 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 international 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 that panel also dealt with
some aspects of the Uruguay Round 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, paras. 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.

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 "General 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
exceptions on the record 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 gave 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 into the Charter, simply by saying: "by any Member of measures relating
to a Member's security interests," because that would permit anything under the sun.
Therefore, we thought it well to draft provisions which would take care of real 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 United 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 on for the purpose of supplying a military establishment;
c) In time of war or other emergency in international relations, relating to the protection of its
essential security interests;
d) Undertaken in pursuance of obligations under the United Nations Charter for the maintenance
of international peace and security.
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, 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),
(Exhibit USA-30).
209 United States' first written submission, para. 89 (referring to Minutes of the 24 and 30 July 1947
Negotiation Meetings, 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.

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 our
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 kind 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. In 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. 172). (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, or 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 effecting 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, para. 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 conflict with the terms of article 94, should affect another Member, I should think
that that Member would have the right to seek redress of some kind under Article 35 as it now
stands (Minutes of the 24 and 30 July 1947 Negotiation Meetings, (Exhibit USA-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 this 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 subparagraph (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 in 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),

claims, it was based on a scenario that assumed 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 order 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; or … 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 during 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 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/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 circumstances 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, paras. 111-112.

the proximity of the ITO Charter and GATT negotiations, this understanding very likely reflects the
understanding of the original negotiators of this clause 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' delegation 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 Vienna 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 providing information 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 Treaties: 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 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, (Exhibit USA-69); 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, 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 USA- 74); 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, (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 Delegation 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 Panel question No. 101, paras. 117-121.

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 negotiating 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 action
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 negotiating 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 statements 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 paras. 7.167-7.168 above.
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, Note 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 society".
238 United States' first written submission, para. 114.

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, this 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 Members 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 information 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 the 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 provisions 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 in 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 appropriate 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 decide 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").

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 regards 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 United 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 confirms 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 view 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 appropriate 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) depends 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

7.187. The next question is how to proceed from here. We note that the panel in Russia – Traffic in
Transit reviewed the action under Article XXI(b) without first establishing whether there was any
breach under the covered agreements. That 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. The panel based this view on two inter -related considerations, namely that: (1) the
circumstances in Article XXI(b)(iii) "involve a fundamental 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 prescribed 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 invoking 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, as 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 Member 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 China,
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 'less 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 juncture 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).

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, suspending 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) of 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 or 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 withdrawn 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 instruments 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 present 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; and (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 outside 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. 30928.

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 marked 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 determines
that they are produced in Hong Kong, China ; and ( b) products for which the United States
determines 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. 43414. The president made this
determination 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 Reports, Australia – Tobacco Plain Packaging, paras. 7.2999 and 7.3001.
271 Hong Kong, China's first written submission, paras. 16, 20, and 71. United States' first written
submission, para. 22; response to Panel question No. 4, paras. 15-17. See also para. 7.14 above.
272 11 August Federal Register Notice, (Exhibits USA-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 Reports, 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 Reports,
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 Reports, Argentina –
Import Measures, paras. 6.274-6.275; Canada – Autos, para. 10.74; Canada – Wheat Exports and Grain

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 their
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 reasons, 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 terms "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 terms – 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;
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, in 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, irrespective 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 an MFN obligation. As the Appellate Body noted in EC – Seal Products, while
those are "both fundamental non-discrimination obligations 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 Reports, EC – Seal Products, para. 5.79).
280 In that sense, we agree with Hong 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).

products of any third country.281 The next step is to assess whether the challenged measure accords
less favourable treatment by modifying 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 objectives, as well
as the facts and circumstances illuminating such objectives and purposes".284 We disagree with the
United 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 examine 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 Reports, 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 GATT 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 "Article 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 unrelated 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 Measures on Beef, para. 144 and Panel Report, Mexico – Taxes on Soft Drinks, para. 8.118)).
284 United States' responses to Panel question No. 75, paras. 39 and No. 17, para. 87. See also United
States' responses to Panel question No. 14, para. 57, No. 74, paras. 25 and 30, and No. 75, para. 41 (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 the
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 European Union in the
context of Articles 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 Reports, Dominican Republic – Import and Sale of Cigarettes,
para. 96 and Thailand – Cigarettes (Philippines), para. 134). We do not consider it necessary to express a view
as to how this 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.

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 "sufficiently
autonomous" 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 marking 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, but 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 marking 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
opening 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 claims 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 written 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 Executive 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, paras. 48 and 50: "where a Member treats a good in practice as having the origin of a
particular country, 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."

this to be confirmed by USCBP'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 that 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 determines 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 United 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
determines 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 determines 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 assessing 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 determined 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. Jacobs, 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, paras. 39-44; comments on the United
States' response 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 No. 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).

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 origin 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 have 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, referring 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 marking 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 question 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 Kong", "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 with 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 determine 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 purchaser, 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' responses to Panel question No. 4, para. 16 and No. 18, para. 92. See also second
written submission, para. 194.

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 characterized 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 requirement at issue.324 We note that Hong Kong, China is a WTO Member in its
own right, separately from China. 325 Furthermore, we 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 originating 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, China, 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 include 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 applies 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 Hong Kong Policy Act Report), (Exhibit USA-6),
p. 12.

"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 determines 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 treatment with respect
to origin determination.327 We, therefore, turn to examining 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 Kong, 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 their 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, the 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 existing 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 that 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 difference 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 factual 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'
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.

"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 ultimate 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 Regulations 335), it requires 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 to 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 develops 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 provision 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 agree 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 consider 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 therefore 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' responses 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 United 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" (United
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 choice "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).

as imports from other countries, are required to be marked with terminology 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 of 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 territory 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 according 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 particular 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
sources 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 of 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.

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 failed 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 United 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 the 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, an 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 Kong, China's second
written submission, paras. 97-98.
348 United States' opening statement at the second meeting of the Panel, paras. 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 Reports, 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).

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 goods 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, an 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 products 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 competitive 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 exporters 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 the 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
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 Reports, Japan – Film, para. 10.338 (where the panel referred to the "possibility that a
discriminatory country-of-origin designation requirement could 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 measures
"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.

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 described 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 "inaccurate 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 not 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 degrees 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 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), 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 requiring 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 products 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 their origin.
7.252. We thus find that the origin marking requirement 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 of 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.

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 assessing 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 Hong 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, within 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 and 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
statement at the first meeting of the Panel, para. 3; and second written submission, para. 5.
366 See United States' introduction to responses to Panel questions after the first meeting of the Panel,
para. 1; introduction to responses to Panel questions after the second 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; responses to
Panel question No. 102, para. 105, and No. 109, para. 115; and comments on the United States' responses 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 7.138).

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 which 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 falls 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 subparagraph, 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 indication 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 Hong 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 because 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.

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 subparagraphs 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) arising 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 argued 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 of 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 Article 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 Reports, Russia – Traffic in Transit, 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 follow 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 unjustifiable discrimination or
a disguised restriction on international trade.

7.5.4.1.1 Arguments of the parties and the third parties
7.270. In reply to a question from the Panel381, 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 meaning
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 understanding 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 GATT 385, 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 containing 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 definition 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 question 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 USA-193), we note that the dictionary refers to "urgent action" and not "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 USA-227)), and "international" (The New Shorter Oxford English
Dictionary, 4th edn, L. Brown (ed.) (Clarendon Press, 1993), 1397, (Exhibit USA-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 into 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, voluntary 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 No. 117, para. 113.
389 United States' response to Panel question No. 117, para. 190, and comments on Hong Kong, China's
390 United States' comments on Hong Kong, China's response to Panel question No. 112, para. 100, and
No. 117, para. 112.

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 texts 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 public 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 set 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 responses 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 No. 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, in undertaking this interpretive
process, we will be mindful of the analysis 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).

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 suggests 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. Furthermore, 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 Member 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 relations. 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
Spanish versions 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 USA-193)).
401 Oxford English Dictionary online, definition 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).

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 the 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 possible, we need to read these meanings harmoniously to clarify
the meaning of the phrase "emergency in international relations" in subparagraph (iii) as set out in
its three authentic versions.411
7.288. The United States suggests 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 . Furthermore, the
United States contends that nothing in the French or Spanish text would suggest that 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 relations 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 armed 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).

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 in 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 ordinary 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
Spanish) are connected by the conjunction "or", which 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 suggests that the absence of the
word similar, indicating "war or other similar emergency", means that these terms cannot impart
meaning to each other . In our view, the inclusion of the words " or other" before "emergency in
international relations" in the English text, makes clear that war is directly connected 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 political 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 Española 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 subparagraph (iii)
it is preceded by the conjunction "or", which as noted above, is used to coordinate two (or more) elements in a
sentence.
We further note that the word "other" 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 conjunction "ou" and "o",
respectively, in the French and Spanish authentic text denotes a link between the two situations described in
subparagraph (iii).

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 definition 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, the reference to war in subparagraph (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 as 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 emergency 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 note 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 Article 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 principle 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 second 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 control 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.

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 the 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 military 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 subparagraphs 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 clearly
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, recognizing 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
informing 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. Those situations are "any 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 would 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" refers 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 relations.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 defence 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

7.305. We see nothing in the object and purpose of the GATT 1994 or the WTO Agreement, as
identified above429, which would 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 representing 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 representing 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 extent, 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 inherently 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 multilateral 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
security interests").
432 United States' response to Panel question No. 104, para. 142. See United States' response to Panel
question No. 111, para. 161.

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 closer 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 view, 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 comparable 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 the 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 maintenance 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
interests. 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, and essential security interests 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 ibid. paras. 7.258-7.261).

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 here 438, the elements identified by both panels clearly reflect a
similar understanding to ours of the type of situation that constitutes 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 examining 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, China 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 demonstrate 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 regard, Hong Kong, China notes that most 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 7.257). For the
reasons explained in this section, we do not consider that an emergency in international relations will
necessarily only arise from situations related 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 Hong 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 question 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).

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 that 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 Article 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 examine 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 by 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 emphasizes 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
focused 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 context 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 United 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 Nos. 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, paras. 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' closing statement at the first meeting of the Panel, para. 3; second written
submission, para. 5.

countries and Members on the situation in Hong Kong, China ; and press articles . We turn to
examining each of those categories.
US domestic instruments
7.326. Under the first category, the United States refers to the 1992 Hong Kong Policy Act 450, 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, the 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 relevant 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 Act, including the protection of democracy and human rights. 459 It also
expresses 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 human rights in Hong Kong".460 Notably, the
2019 Hong Kong Human Rights and Democracy Act sets 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, (Exhibits USA-3, HKG-14).
451 Hong Kong Human Rights and Democracy 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 Report (28 May 2020), (2020 Hong Kong Policy Act Report),
(Exhibit USA-5).
453 Executive Order 13936, (Exhibits 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, (Exhibits USA-3, HKG-14).
457 Section 2(6), 1992 Hong Kong Policy Act, (Exhibits 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 Hong Kong Policy Act Report, (Exhibit USA-5), pp. 1-2.

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 provision
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 ensued, 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 concerning
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 erosion 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 that 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 respect
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, the 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
authorization of military force against China".471

463 2020 Hong Kong Policy Act Report, (Exhibit USA-5), pp. 2-3.
464 Introduction, Executive Order 13936, (Exhibits USA-2, HKG-13).
465 Sections 2 to 8, Executive Order 13936, (Exhibits 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).

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 relevance 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 commercial 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, the 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' notification 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 the 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
existence 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 concerns. 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, the 2020 Hong Kong Autonomy Act expressly excluded restrictions on importations of Hong
Kong, China products from the sanctions to be applied and 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 Hong 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 Kong Special Administrative Region, G.N.(E) 72 of 2020,
(Exhibit USA-117).
474 2021 Hong Kong Policy Act Report, (Exhibit USA-6), pp. 2-12.
475 2021 Hong Kong Policy Act Report, (Exhibit USA-6), p. 12.
476 2021 Hong Kong Policy Act Report, (Exhibit USA-6), p. 12.

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, this 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,
inconsistent 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 Coalition 480, 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 relates 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 opinions 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 Press Releases
(June 24 2021), (Exhibit USA-134).
480 United States' 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. Department of State (February 8, 2022), (Exhibit USA-210).

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 suggests that Canada, similar to
the United States, suspended 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 society.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 certain 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 those
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 secession'", 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: Council 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 USA-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 poll 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 ousted", 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 freedoms 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 Apple Daily

above, however, except those mention ed below, they 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 governments 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, China 491; 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 democratic 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 adopted 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 participants in international 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 adopted 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 Special 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 poll 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 poll 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.

international relations continue to involve cooperation 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 exception of the origin marking requirement and some 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 determining whether the United States has
demonstrated that the situation 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 imposing 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
requirement.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 constituted 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
Members 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 Hong 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 Hong 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 Kong – 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 temporary 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 crisis – 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)

7.359. Finally, we underscore that 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 democratic 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 basis 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 not 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 ".
Panels 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 those 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 offered 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 (where 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 Appellate 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 issue 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 paras. 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:

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, differ in some respects.507 However, similar 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 sufficiently 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 conditions 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 incorrect.510
We therefore 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 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, and with respect to the method of levying such duties and charges, and with respect to
all rules and formalities 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 other 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 regulations, 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, while 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 treatment, 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 Articles I:1 and III:4 of the GATT 1994)).
508 Article 2(c) of the ARO 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 of the country of origin.
509 Article 2(d) of the ARO 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.

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 to 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 benefits 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.