Supply Chains, COVID-19 and the GATT Security Exception: Legal Limits of ‘Pandemic Exceptionalism’

Abstract

Abstract The increasingly fraught relationship between trade and security has manifested through expanding conceptions of security to include notions of economic self-sufficiency. Some suggest that this trend will be accelerated by COVID-19 to permanently enshrine exceptionalism in trade (‘pandemic exceptionalism’), arguably enabling invocations of the security exception to justify potentially protectionist measures where it is considered, by an invoking WTO Member, as necessary to protect its ‘essential security interests’. This article explores the security implications of the pandemic’s disruption of international supply chains and growing calls to ‘reshore’ production in order to examine whether COVID-19 could enable an indefinite expansion of the security exception under Article XXI of the General Agreement on Tariffs and Trade 1994. The analysis contrasts the subjective and objective elements of Article XXI(b)(iii) to highlight the role of judicial settlement and objective determination in imposing legal limits on ‘pandemic exceptionalism’.