National Interest

This is a clarion call for Indian international law scholars to do collective work on strengthening and integrating the field within the domestic legal landscape and foreign policy, as well as with western scholarship. The restoration of the foundation of international rules well laid in ancient India is urgently required. The timely action could save the crumbling architecture of teaching and research of international law in India.

The debate to what extent the societies are willing to allow the relativization of human rights and the democratic mechanisms is essential to bring what Boaventura de Sousa Santos calls “a novel clarity” that according to him: “[…]pandemic clarity and the apparitions it brings to light. The things it allows us to see and the way in which they are interpreted and assessed will determine the future of the civilization in which we live”.

The reading of the travaux préparatoires of Article XXI GATT indicates that the GATT Contracting Parties did not envisage that a global pandemic such as a virus could amount to a national security exception under the said Article. However, the drafters of GATT 1947 cannot be put to blame since no global health crisis has ever necessitated the applicability of the Article. The 2020 Corona virus (Covid 19) is an example of a global health crisis. In response to the crisis and in a bid to protect their nationals, states are restricting the exportation of medical related equipment. This amounts to quantitative restrictions which is a violation of the World Trade Organisation rules of trade. This paper analyses such measures in lieu of WTO member’s obligations.

At the heart of the WTO system is the commitment to the foundational principles of MFN and national treatment. But in a world predicated upon national interest and economic power, the most powerful may not consider multilateral rule-based commitments to be optimal to the achievement of their national interests. One feature of the WTO dispute settlement system is that every Member of the WTO is entitled to have their dispute determined under agreed rules. This is a basic feature of rules-based dispute settlement. The rules, impartially applied, have no regard to the economic power of the parties. The settlement of disputes by recourse to rules of general application yield outcomes that do not depend upon which member is more powerful.