National Security Self-Declaration in the Age of Fake News

Abstract

The right of sovereign countries to protect themselves in times of crisis by resorting to otherwise unavailable measures has been “a bedrock feature of the international legal system”. Accordingly, the WTO system contains national security exceptions, on the basis of which Members may deviate from their WTO obligations under certain circumstances. Considering the potential implications of Members resorting to the exception, as well as having a trade panel determine matters relating to a sovereign country’s national security, it is not surprising that WTO Members seem to have deliberately avoided having the matter brought before the WTO dispute settlement system. However, there are currently several ongoing disputes at different stages of WTO dispute settlement in which the national security exception has been invoked. The questions of the scope of the national security exception, as well as the scope of a WTO panel’s authority to review such an invocation, will most likely not remain unanswered for much longer. In light of these developments, this paper examines the history of the national security exception and the different views regarding its scope and interpretation.