## Facts

- Ukraine challenged Russian regulations and administrative acts (adopted from 2016 onward) restricting road and rail transit of Ukrainian-origin goods through Russian territory to third countries, including Kazakhstan and the Kyrgyz Republic.
- The measures included bans on certain categories of goods, conditions requiring transit via designated routes and modalities (e.g., prescribed procedures and controls), and related publication and administrative practices.
- Ukraine alleged the measures effectively prevented or severely limited its ability to use traditional transit routes across the Ukraine–Russia border for shipments to Central Asia.
- Ukraine claimed violations of GATT 1994 provisions on freedom of transit and related obligations, as well as certain commitments in Russia’s WTO accession terms.
- Russia defended the measures under the GATT 1994 security exception, asserting that since 2014 an ongoing emergency in international relations with Ukraine threatened Russia’s essential security interests.
- WTO consultations were requested in September 2016; a panel was established in March 2017; the panel report issued April 5, 2019 and was adopted April 26, 2019 without appeal.

## Issues

1. Whether a WTO panel may review (is competent to adjudicate) a respondent’s invocation of GATT 1994 Article XXI(b)(iii), or whether the provision is wholly self-judging.
2. What constitutes a “war or other emergency in international relations” under Article XXI(b)(iii).
3. Whether the challenged transit measures were “taken in time of” and sufficiently connected to the asserted emergency and the protection of “essential security interests,” consistent with Article XXI(b)(iii).
4. If Article XXI(b)(iii) did not apply, whether the measures would breach GATT obligations on freedom of transit and related accession commitments.

## Decision

- The panel found Article XXI(b)(iii) is not wholly self-judging and is subject to limited, objective review of its prerequisite conditions.
- The panel determined that an “emergency in international relations” existed between Russia and Ukraine from 2014 onward within the meaning of Article XXI(b)(iii).
- The panel concluded Russia’s measures were taken during that emergency and bore a sufficient relationship to Russia’s articulated essential security interests, satisfying Article XXI(b)(iii).
- On that basis, the panel rejected Ukraine’s claims and found Russia had not acted inconsistently with the cited GATT and accession obligations.
- The panel indicated that, absent Article XXI(b)(iii), Ukraine would have established a prima facie violation of GATT Article V:2 (and corresponding accession commitments) concerning freedom of transit.

## Legal Principles

- GATT 1994 Article XXI(b)(iii) permits measures a member considers necessary to protect essential security interests when taken “in time of war or other emergency in international relations,” but the existence of the enumerated circumstances is subject to adjudicative review.
- Treaty interpretation follows customary international law rules reflected in VCLT Articles 31 and 32, including ordinary meaning, context, and object and purpose.
- Although “which it considers necessary” grants members discretion, that discretion is not unlimited; panels may assess objective elements such as whether a “war or other emergency in international relations” exists and whether the measures were taken in time of that situation.
- “Other emergency in international relations” covers severe interstate situations such as armed conflict, latent armed conflict, heightened tension or crisis, or serious instability surrounding a state.
- Panels may require a good-faith connection between the asserted essential security interests, the identified emergency, and the measures adopted, without substituting their own security policy judgments for the invoking member’s.

## Conclusion

The panel treated the GATT national security exception as justiciable to the extent of reviewing its objective preconditions and a good-faith nexus to the asserted security interests, and it upheld Russia’s transit restrictions as justified by an emergency in international relations between Russia and Ukraine.


Russia—Measures Concerning Traffic in Transit, WT/DS512/R (WTO Panel 2019)