Between Law and Politics: Nuclear Non Proliferation and State-Induced Compliance in International Trade

The US economic sanctions (including sweeping export restrictions) against Iran and Russia, while presented as aiming at non-proliferation, appear to have ineluctably undermined the negotiations to revive the Joint Comprehensive Plan of Action, an agreement meant to deter Iran from pursuing nuclear status. The present paper approaches this situation as a telling example of how unrestrained export control can come into tension with international security, in this case within the nuclear non-proliferation regime. Drawing on this illustrative case, this article seeks to formulate more general conclusions as regards the potential side-effects of broad export restrictions, their necessary limits under WTO law, and the significance of the WTO system in the non-proliferation process. First, this paper contextualises export controls as part of this regime, and then addresses the causal implications of the above situation, concluding that it does demonstrate the involvement of a foreign policy element that is ultimately at odds with the stated goals of nuclear non-proliferation. Finally, the paper examines the substance of Article XXI of the General Agreement on Tariffs and Trade, which the sanctioning State will most likely use to justify its trade restrictions in a WTO dispute. It finds that a good faith interpretation and available practice indicate that the exceptions of Article XXI involve demanding standards and are to be interpreted so as to screen out, as far as possible, measures that covertly pursue other (e.g. foreign policy) interests. Meanwhile, non-WTO Member States could try to advance cases through friendly Members if they could establish a breach of WTO law that concerns the latter, though the chances are admittedly very thin. Ultimately, the WTO system is revealed as a valuable element in ensuring and maintaining international security and non-proliferation.