Section 232 of the US Trade Expansion Act of 1962 authorizes the Secretary of Commerce to conduct comprehensive investigations to determine the effects of imports of any article on the national security of the United States. This is a broadly-drafted provision that allows consideration not merely of defence concerns but also of the effects of foreign competition on specific domestic industries. As such, it probably allows measures to be recommended that would go beyond the exception for national security measures in the GATT and has not led to recommendations that such measures be adopted since the entry into force of the WTO Agreement in 1995.

On 16 February, the US Commerce Department published Section 232 national security investigation reports on steel and aluminium. These reports conclude that action should be taken in each case and include alternative sets of recommendations aimed at restoring US capacity utilisation to acceptable levels. One set of recommendations is based on tariffs and the other on quotas. The reports include no consideration of whether these measures would be consistent with the WTO obligations of the United States.

On 8 March, US President Trump signed proclamations imposing duties of 25% on steel and 11% on aluminium imports which will enter into force on 23 March 2018.

To counter protests from "allies" of the United States that they do not threaten US security, the proclamations state that:

"Any country with which we have a security relationship is welcome to discuss with the United States alternative ways to address the threatened impairment of the national security caused by imports from that country. Should the United States and any such country arrive at a satisfactory alternative means to address the threat to the national security such that I determine that imports from that country no longer threaten to impair the national security, I may remove or modify the restriction on steel/aluminium articles imports from that country and, if necessary, make any corresponding adjustments to the tariff as it applies to other countries as our national security interests require."The proclamations do however immediately exempt imports from Canada and Mexico because they constitute a "special case". It is suggested that the exemption will be terminated if the NAFTA negotiations do not provide an alternative solution to the national security concerns.

1. THE EU RESPONSE

The European Union rejects the US claim that these measures are necessary or even intended to address a national security concern and has announced three actions in response to these measures:

  • WTO dispute settlement action against the measures;
  • Rebalancing action under Article 8 of the Safeguards Agreement if the United States does not offer trade compensation as foreseen in that provision. Press statements have referred to duties on politically sensitive products such as Kentucky Bourbon Whiskey, Blue Jeans and Harley Davidson Motorcycles as well as duties on exports of US steel. In accordance with the Safeguards Agreement, some of these measures would apply rapidly while others would be deferred for 3 years;
  • The initiation of (proper) safeguard proceedings by the European Union to ensure that excess steel that is diverted from the US market is not imported into the European Union in such increased quantities as to cause serious injury to EU industry.

The European Union has also requested an exemption from the US measures since it considers that its security and even trade relationship with the US is as important as that of Canada and Mexico. However, the United States has so far not indicated what precise criteria it will apply or what precise procedure it will follow in deciding on exemptions.

2. WTO LEGAL ASSESSMENT OF THE PROPOSED EU RESPONSE

WTO dispute settlement

The European Union takes the view that the kind of action taken by the United States comes within the scope of the WTO Safeguards Agreement and must satisfy the conditions set out in that agreement. The Safeguards Agreement allows the imposition of temporary supplemental duties where an investigation demonstrates that a product is being imported in such increased quantities, absolute or relative to domestic production, and under such conditions as to cause or threaten to cause serious injury to the domestic industry that produces like or directly competitive products. In principle these increased imports must be due to unforeseen circumstances.

The European Union considers that the United States has not satisfied the various conditions of the Safeguards Agreement and that therefore the proclamations constitute violations of the Safeguards Agreement.

The European Union, together with an alliance of 7 other WTO members successfully brought a WTO dispute settlement case against the George W Bush safeguard measures on steel products in 2002-2003. That case was adjudicated within 18 months and the measures were withdrawn by the United States under threat of WTO sanctioned trade retaliation from the European Union and others.

The United States does not even claim that its measures are justified by the Safeguards Agreement but relies on the "national security exception" in Article XXI GATT. This provides, in its paragraph (b)(iii), that "Nothing in this Agreement shall be construed … to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests … taken in time of war or other emergency in international relations".

While the traditional US view has been that this provision is "self-judging" and its invocation is not subject to dispute settlement, the EU view, at least since the conclusion of the WTO Agreement, has been that any action taken on the basis of the provision must be justified in accordance with its terms. The two already crossed swords on the matter in the Helms Burton dispute back in 1996.

While a WTO dispute settlement case is likely to be brought by a number of countries, the prospect of a speedy solution is less promising than in 2002 because the United States is currently blocking the appointment of new Members of the WTO dispute settlement body and impeding the functioning of the system.

Rebalancing action under Article 8 of the Safeguards Agreement

The European Union further takes the view that since the US measures come within the scope of the WTO Safeguards Agreement it is entitled to apply a special remedy that does not require recourse to dispute settlement.

Article 8.1 of the Safeguards Agreement requires a country wishing to impose a safeguard measure, on request of any affected Members, to enter into consultations to offer "adequate means of trade compensation for the adverse effects of the measure" on the trade of the other Members. If no agreement is reached within 30 days the affected exporting Members are entitled to suspend, on 30 days written notice, "the application of substantially equivalent concessions or other obligations under GATT 1994, to the trade of the Member applying the safeguard measure".

Article 8.3 of the Safeguards Agreement provides that such action cannot be taken for a period of three years where the safeguard measure has been imposed not in response to an absolute increase but merely a relative increase in imports (i.e. an increase in market share in a decreasing market).

The advantage of this course of action is that if the United States disapproves it would itself need to take dispute settlement action against the "rebalancing action". For that to be effective, it would need a functioning WTO dispute settlement system.

The US President has threatened to retaliate against this retaliation by imposing duties on EU automobile exports but this would be a clear a blatant violation of the WTO Agreement which prohibits unauthorised retaliation without recourse to dispute settlement (Article 22.1 DSU).

The initiation of safeguard proceedings by the European Union

An additional concern of the European Union is that the excess steel production will be diverted from the US market and be imported into the European Union, exacerbating the already delicate state of the industry. To protect against this the European Union is preparing to start an investigation with a view to adopting its own, presumably legal, safeguard measures. It remains to be seen whether all the conditions of the Safeguards Agreement will be demonstrated as satisfied by the EU investigation. One interesting question will be whether the US action could be considered an "unforeseen circumstance".

Again, the situation is reminiscent of the earlier steel crisis in 2002 when the US safeguard action prompted similar action around the world, including by the European Union.

The legality of exemptions

Naturally, every country is eager to obtain an exemption from the US measures and the European Union has joined the fray. However, these exemptions pose an additional problem. The GATT contains a general Most Favoured Nation obligation (the MFN principle) which demands that "any advantage, favour, privilege or immunity granted by any contracting party 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 contracting parties".

Of course, the national security exception in Article XXI GATT can also justify a departure from the MFN principle. However, countries that do not benefit from an exemption will be likely to argue that the difference in treatment needs to be justified by objective differences relating to security – and not by trade concerns.

The WTO has avoided ruling on the MFN issue arising out of exemptions in earlier safeguard cases by holding them inconsistent with the WTO because of a breach of the "principle of parallelism" that it has developed. This requires exports from exempted countries to be excluded from the assessment of the need for the measures.