Conceptualizing National Security in an Era of Great Power Rivalry: Implications for International Economic Law

Abstract

AbstractUntil recently, the national security exception in investment and trade was understood in terms of defense against military invasion or attack and possibly extendable to economic collapse. However, national security is increasingly understood far beyond the classical contours of territorial integrity. Driven primarily by the China-U.S. hegemonic competition, the new conceptualization is exemplified in a dramatic expansion in U.S. investment and trade measures based upon conceptualizing national security as encompassing threats to a fusion of interrelated spheres of national strength including economic, technological, and ideological power. Moreover, the U.S. now understands security as the retention of superiority in an array of power spheres and encompasses denying China access to emerging technologies. China has similarly expanded her definition of security which is often referenced as “national interests” and embraces political stability (Party dominance), social stability, ideological security, and the defense of Chinese overseas interests, all of which lie far outside the classical definition of security. The untethered expansion in both the U.S. and Chinese conceptualization of security raises significant ramifications for the international economic architecture. As the guardrails of security are abandoned in pursuit of policy goals, a potentially overly broad and excessive notion of security risks deepening several overlapping perils to the current international legal landscape. The focus of this article is on the expansion of the national security exception in investment and trade and potential implications arising from an unfettered expansion.