From Norms to Expectations:Balancing Trade and Security Interests in the Post-COVID-19 World
From Norms to Expectations:
Balancing Trade and Security Interests in the Post-COVID-19 World
Xueji Su and Alexandr Svetlicinii
ABSTRACT: Often depicted as a ‘nuclear button’, the significance of the security exceptions for the world trade regime goes well beyond a rule that exonerates states from their binding commitments to trade liberalisation. As a general exception enshrined into the GATT/WTO regime, the security exceptions reflect a compromise and consensual expectation of WTO members resulting from negotiations. This consensus is two-pronged. On the one hand, the possibility and the scope of review of the security exceptions were intentionally made ambiguous. On the other hand, the ambiguity notwithstanding, state actors share an implicit common expectation as to the applicability of the security exceptions, namely under which circumstances these may be invoked. The existing literature in the field of international trade law focuses predominantly on the former while this paper turns to the latter.
Our analysis undertakes three interrelated tasks. First, it attempts to ascertain the ‘circumstances’ in which the security exceptions are likely to be invoked. Second, it examines whether this shared understanding has changed over time. Lastly, it inquires into how the rules of the international trade regime should interact with these common expectations.
In light of our analysis, this paper argues that the security exceptions were mainly invoked in the most severe instances of interstate confrontation, closely approximated to wars, armed conflicts and similar situations endangering territory, population and political system of a state. This reflects a common expectation among states that the security exceptions rule is to be employed exclusively for the protection of the essential security interests. After an examination of recent trade disputes between China and the United States and between Russia and the United States/European Union over Ukraine, this paper concludes that by far this common expectation persists. On this ground, this paper proposes that the WTO dispute settlement body should be mindful of the delimitation between security and other national interests and avoid any arbitrary extension of the use of the security exceptions.


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