National Security Exception Research Articles

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

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.

The Scope and Future of National Security Exception Clauses inGATT 1994

The Scope and Future of National Security Exception Clauses inGATT 1994

Trade Sanctions against Russia and their WTO Consistency: Focusing on Justification under National Security Exceptions

Abstract In the wake of Russia’s 2022 invasion of Ukraine, around 40 countries/economies, including G7 members, responded to impose a wide range of economic, including trade-related, sanctions on Russia. The question immediately arises as to whether such sanctions violate the WTO agreements or are justified under the relevant national security exceptions. After introducing the material facts of the economic sanctions against Russia as well as the development of WTO jurisprudence on national security exceptions – particularly Article XXI(b)(iii) of the GATT –, this article goes on to analyse the WTO consistency of these trade sanctions against Russia, on a country-by-country and a measure-by-measure basis. From the standpoint of the “war or other emergency in international relations” and “its essential security interests” requirements, countries are categorised according to their geographic proximity and relationship (e.g., military alliances, customs unions, etc) to the belligerents, while measures are categorised by their nature and aim from the standpoint of the “necessary to protect” requirement.

Steel, security and the WTO Dispute Settlement Mechanism: A trade catastrophe in the making

AbstractThe World Trade Organization's (WTO's) Dispute Settlement Mechanism has been rendered ineffective by the refusal of the United States to allow appointments to its Appellate Body. The implicit reason for this poor state of affairs is the desire of the United States to protect its steel sector under the WTO's national security exception. The arguments made by the United States in this regard are mostly spurious and reflect its status as a current bad faith actor within the WTO. The posture of the United States is undermining both the effectiveness and legitimacy of this important trade institution. This article examines both the events leading up to this situation, the commercial interests behind them, and their legitimacy under WTO law.

Not Trading With the Enemy: The Case of Computer Chips

Drawing on the analysis of international trade law and the research on the regulation of the semiconductor industry in key players, the United States of America (US), the Netherlands, and Japan, this paper explores under which conditions export controls are compatible with the international trade law framework. To this end, it focuses on the scope of national security exceptions under the agreements of the World Trade Organization (WTO) and examines to which extent export controls on the semiconductor industry can be justified under such exceptions. It discusses the direction in which the current practice and jurisprudence of WTO panels are heading and the possible effects of governments’ ‘decoupling’ strategies toward China on shaping international trade law. This paper suggests that governments might have difficulties justifying their imminent cybersecurity and geo-economic concerns under existing security exceptions and that they should consider either clarifying the scope of such exceptions or changing the approach to dealing with national security issues under the WTO framework. Export controls, computer chips, semiconductors, WTO law, decoupling with China, security exception, geopolitical rivalry

BIT·FTA상 외국인투자심사 실행에 관한 연구

Countries with foreign investment screening mechanism have developed practices to avoid international investment disputes. These practices include using security exceptions, exceptions to dispute settlement provisions, and schedules to Annex regarding non-conforming measures in investment agreements. These practices do not specify specific national security requirements and are subject to full self-judgment. Countries with a long history of foreign investment screening, such as the United States, Canada, and Australia, actively use these practices to exclude foreign investment screening from international agreement obligations. These countries interpret the national security exception jurisprudence as applying to foreign investment screening, meaning that foreign investment screening is entirely self-judged.
 However, South Korea does not have a consistent approach to foreign investment screening in its Bilateral Investment Treaties (BITs) and Free Trade Agreements (FTAs). The security exception clause in these agreements is different in each agreement, and the contents of the reservations are not uniform. However, it can be interpreted that Korea has decided to treat foreign investment screening as an exception to international law, since it joined the Regional Comprehensive Economic Partnership (RCEP), which stipulates that the screening regime shall not be subject to the dispute settlement provisions.
 Foreign investment screening is likely to become more important as a policy tool in the era of expanding national security. The concept of national security has evolved from being applied only in exceptional emergencies such as war to encompassing more permanent situations such as economic security, high-tech protection, supply chain crisis response, and climate change. State measures to protect national security have also become more permanent. Given these circumstances, it is important to reconsider whether it is appropriate to treat foreign investment screening as an exception to international law. Allowing foreign investment screening as an exception to international law could lead to a crisis in the international legal system due to potential abuse of this exception. However, from the government's perspective, securing policy space for foreign investment screening can be advantageous in effectively addressing the growing threat to national security. Therefore, it is crucial to contemplate the stance and standards that should be established for the foreign investment screening practice in Korea moving forward.

Study on the Application of the "National Security Exception" Clause in the WTO Trade Rules

For a long time, there have been differences and disputes on the restrictive application standards of the "national security exception" (NSE) clause in the WTO trade rules, and the clarification of the application of the "NSE" clause has become an urgent problem to be solved by the WTO dispute settlement body and the international economic law community. This article will start from China v. U.S. Steel and Aluminum Tariff Measures, combining the legislative concepts, doctrinal interpretations and judicial practice to clarify the limitations of the application of the "NSE" provisions.

The WTO’s National Security Exception and Its Implication to the China-EU Dispute: With Special References to Lithuania’s Taiwan Representative Office

The WTO’s National Security Exception and Its Implication to the China-EU Dispute: With Special References to Lithuania’s Taiwan Representative Office

Cyberspace as a fifth dimension of national security: trade measure exceptions

PurposeThe purpose of this paper is to demonstrate that the national security exception will not allow governments to respond to cyberspace threats within the confines of the world trade organization (WTO) rules.Design/methodology/approachThis paper is a desktop study of international trade laws with a specific focus on the convergence of cybersecurity measures and the national security exception provisions of the WTO.FindingsThe trends towards cybersecurity measures may mean there will inevitably be an evolution of trade norms. The question is, will the collective of the WTO be a part of the evolution, or merely an observer? In the authors’ view, it is crucial that it is the former.Originality/valueThis study makes three contributions. It provides a literature review and discussion on cybersecurity and the impact on trade. It demonstrates that the national security exception provision will not excuse these measures, and it aims to underscore the importance of the WTO as a community of nations where negotiation on important global issues is possible.

Legality of export restrictions imposed during COVID-19 in international economic law

PurposeThis paper aims to examine options under the General Agreement on Tariffs and Trade (GATT) for exempting or justifying export restrictions or prohibitions that are in principle prohibited under Article XI:1 GATT. The paper begins by examining the exception under Article XI:2 (a) GATT, before going on to the arguments under GATT Article XX (b) and (j). In addition, the analysis considers the national security exception in Article XXI (b) (iii) GATT, given that WTO members have increasingly invoked this provision in recent years, as well as during the pandemic, when Namibia implemented COVID-19-related trade restrictions under the Agreement on Technical Barriers to Trade based on national security concerns.Design/methodology/approachThe impacts of the COVID-19 pandemic on trade have been far-reaching. Countries have attempted to place export restrictions on personal protective equipment and COVID-19 vaccines. Even though export restrictions are generally unlawful under the GATT, countries have decided it is necessary at this time. Members have relied heavily on the “national security” and “critical shortage” exceptions outlined in the GATT.FindingsThis paper concludes that, depending on the circumstances of a particular case, a pandemic may constitute an emergency in international relations, as defined in Article XXI (b) (iii) GATT, and that, in such a situation, a WTO member may legitimately take action to protect its vital security interests.Originality/valueThe paper provides an original conclusion based on WTO case law on an issue of contemporary relevance.

The Non-Discrimination Principle and the National Security Exception under GATT Article XXI: An Analysis of the Revocation of Russia’s Most-Favoured-Nation Status by the US and Its Allies

The Non-Discrimination Principle and the National Security Exception under GATT Article XXI: An Analysis of the Revocation of Russia’s Most-Favoured-Nation Status by the US and Its Allies

A ‘Uniform’ for All States?

A ‘Uniform’ for All States?

Sovereign Investors and National Security Exceptions in WTO and Investment Law

Sovereign Investors and National Security Exceptions in WTO and Investment Law

Saving the WTO from the National Security Exception

Saving the WTO from the National Security Exception

Climate Emergency Measures Assessed Under National Security Exceptions in Trade and Investment Agreements

Climate Emergency Measures Assessed Under National Security Exceptions in Trade and Investment Agreements

Letter to the Journal Dual-Use Products in the Course of Considering National Security Exceptions under GATT Article XXI

Letter to the <i>Journal</i> Dual-Use Products in the Course of Considering National Security Exceptions under GATT Article XXI

Russia-Ukraine War and WTO’s National Security Exception

The Russian invasion of Ukraine is one of the most flagrant violations of international law in recent times. The Russian action has received global condemnation with various countries imposing sanctions on Russia. This article argues that concerning imposing trade sanctions against Russia, countries can rely on the national security exception in the World Trade Organization (WTO). The relevant legal provision in this regard is Article XXI of the General Agreements on Tariffs and Trade (GATT). The article undertakes a doctrinal analysis of GATT’s Article XXI. This analysis is conducted in the light of two WTO disputes—the Russia: Transit case and the Saudi Arabia: Intellectual Property case—that have interpreted the national security exception. The article argues that while the national security exception given in GATT’s Article XXI is not self-judging, countries will enjoy deference in determining their essential security interests. The article then applies this doctrinal understanding to the current Russia–Ukraine war. The current situation will fall under Article XXI, and countries can impose trade-restricting measures against Russia (such as suspension of the most-favoured-nation treatment) following Article XXI of GATT. JEL Codes: F13, F19, F52, F51

The WTO’s Collapsing Judicial and Legislative Wings: Is ‘Consensus’ the Real Elephant in the Room?

The World Trade Organization (WTO) has three main functions: (i) it provides a negotiation forum where Members can negotiate new agreements and understandings, (ii) it provides a judicial forum where trade disputes between countries can be settled, and (iii) it acts as an executive forum for the administration and application of the WTO agreements, including capacity-building and training in this respect. Currently, it is only performing its executive function, as the other two functions remain stalled. The authors in this article analyse two challenges that have contributed to paralysing the WTO’s legislative and judicial functions. With this assessment, the authors suggest that the ‘real elephant in the room’, i.e., the root-cause behind these challenges, is the avoidable ‘consensus-based decision-making’. World Trade Organization, National Security Exception, Appellate Body, Consensus, Decision-Making

Legislative discourse of digital governance: a corpus-driven comparative study of laws in the European Union and China

Abstract Based on the self-compiled corpora of the European Union and Chinese laws on data governance, this study adopts a corpus-driven approach to comparatively study the legislative design of the EU and China on digital governance, especially on key issues such as data protection, data processing and utilization, and cross-border data transfer. It is found through corpus analysis that the EU has developed a relatively comprehensive data protection system, which internally focuses on the protection of individual data rights and externally sets high standards on the cross-border transfer of data. Despite the data protection paradigm as it manifests, the EU is facing new challenges on data exportation, data jurisdiction in the competitive digital marketplace. Shared the same concern on the data protection legislation, Chinese data law has made significant progress in personal data protection with the nascent enactment of Data Security Law and Personal Data Protection Law. Notably, Chinese legislation features the hierarchal taxonomy of data under the principle of the national security exception, while it requires more legislative skills, flexible response mechanisms, and more subordinate laws to prevent future data security threats. Moreover, the corpus-driven method conducted in this study provides evidential insights for the comparative legal textual studies across jurisdictions.

National Security and Retention of Telecommunications Data in Light of Recent Case Law of the European Courts

The Court of Justice is once again clarifying the limits of the application of data retention laws – General obligation to retain data exceeds the limits of what is strictly necessary within a democratic society – The national security exception does not preclude a judicial assessment of the legitimacy of its application – The existence of a genuine and specific threat as a premise for the use of untargeted data retention measures – The possibility of searching for the gold standard of data retention based on algorithmic processing – Different perceptions of the Court of Justice position by the referring courts – The Conseil d'État’s position distorts the idea of the protection of fundamental rights that is enshrined in the EU legal order