Title: Returning to Commonsense: The US Section 232 Tariffs Are Not Security Measures under WTO Law

Author: Jianguo Hu

Abstract: The increasing number of investigations and tariffs on imports of important goods into the United States (US) under Section 232 of the Trade Expansion Act of 1962 deeply bothered the world. One of the most controversial legal issues concerns whether the US Section 232 tariffs are national security measures as argued by the US or safeguards as claimed by some other members. The panels in DS544 and DS558 adopted and applied the overly formalistic standard of “pursuant to” in the context of Article 11.3(c) of the Agreement on Safeguards, leading to easy circumvention of WTO obligations, or contradictory and counterintuitive results, because a measure that does not fall within the scope of Article XXI of the GATT 1994 can be said to be sought, taken, or maintained pursuant to the same provision. Each of the three approaches to the legal characterization of a measure under WTO law derived from WTO dispute settlement system, that is Full Compliance Standard, Substantial Standard and Formalistic Standard, all has its own shortcomings. It is suggested that WTO adjudicators should adopt a “Fall within the Scope or Applicability Standard” when assessing the nature of a measure within the WTO legal framework. Based on this standard, the US Section 232 tariffs are in no way security measures within the meaning of Article XXI(b) of the GATT 1994, because they don’t fall within the scope of one of subparagraphs (i)–(iii).

Keywords: US Section 232 Tariffs, WTO Law, Security Measures, Safeguards, Applicability Standard