Empirical Evolution of the WTO Security Exceptions Clause and China’s Discourse

Abstract

AbstractInfluenced in recent years by multiple factors in recent years, such as antiglobalization, the return of the state and the major public health crisis caused by the COVID-19 pandemic, the international community has entered a nontraditional security era. In the name of protecting nontraditional security, many countries have actively and frequently adopted abnormal regulatory measures and have attempted to seek exemptions from obligations through article XXI of the GATT or article 73 of the TRIPS (Security Exceptions). A series of economic and trade mega-agreements, such as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), the U.S.-Mexico-Canada Agreement, the EU-Japan Economic Partnership Agreement (USMCA), the Investment Cooperation and Facilitation Treaty between the Federative Republic of Brazil and the Republic of India (Brazil-India BIT), and the Regional Comprehensive Economic Partnership (RCEP), that have been concluded since 2018 cover more nontraditional security in their security exceptions clauses or essential security interests clauses, possibly leading to more countries expanding the interpretation and application of the security exceptions clause in future practice. The circular promotion of the security exceptions clause in its evolution and textual development may break the overall balance of existing WTO rules and exacerbate further imbalances. This chapter specifically studies the interpretation and logical evolution of security exceptions clauses in the DS512 and DS567, providing an empirical basis for the justification of disputed measures through the invocation of article XXI of the GATT. It is recommended that under the guidance of an overall national security concept, China should consider its national conditions, taking both its present and its long-term interests into account. Regarding China’s security laws, policies and practices, it is recommended that the double-edged sword function of the security exceptions clause should be focused on foreign contrasts. That is, the security exceptions clause should be regarded as a defensive clause in terms of its position and content design and should be invoked under a high level of self-restraint in dispute settlement to avoid excessive strengthening or even alienation of national security during execution and to provide institutional support for a more balanced Chinese discourse in the establishment of a new generation of international economic rules.KeywordsWTO security exceptionsNational securityArticle XXIChina’s discourse