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A Contemporary Contextualization of Security Under Article XXI of the GATT

A Contemporary Contextualization of Security Under Article XXI of the GATT States’ perceived sovereign interests are often not aligned with international legal standards, especially in relation to national security. The Article XXI security exception qualifies the collective interests of the international community which the non-discrimination requirements of the General Agreement on Tariffs and Trade (GATT) regime aspires for. While its justiciability and self-judging nature have long been discussed and debated upon, the provision must be understood in light of the ever-evolving conceptions of security itself, including challenges posed by climate change, public health emergencies and cyber warfare. Despite being noticed at the drafting stage, Article XXI does not contain a mechanism akin to the chapeau of Article XX against which the need for states to act against such non-conventional threats may be balanced with free trade interests. In view of the underlying subjectivity arising from both, judicial discretion and states’ conceptions, this article so contextualizes the security exception, including by tracing its historical underpinnings. It considers the application of the good faith requirement and significantly, examines whether security interests can objectively be determined. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Global Trade and Customs Journal Kluwer Law International

A Contemporary Contextualization of Security Under Article XXI of the GATT

S. Miglani, Anhad
Global Trade and Customs Journal , Volume 17 (12): 7 – Nov 1, 2022
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Publisher
Kluwer Law International
Copyright
Copyright © 2022 Kluwer Law International BV, The Netherlands
ISSN
1569-755X
Publisher site
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Abstract

States’ perceived sovereign interests are often not aligned with international legal standards, especially in relation to national security. The Article XXI security exception qualifies the collective interests of the international community which the non-discrimination requirements of the General Agreement on Tariffs and Trade (GATT) regime aspires for. While its justiciability and self-judging nature have long been discussed and debated upon, the provision must be understood in light of the ever-evolving conceptions of security itself, including challenges posed by climate change, public health emergencies and cyber warfare. Despite being noticed at the drafting stage, Article XXI does not contain a mechanism akin to the chapeau of Article XX against which the need for states to act against such non-conventional threats may be balanced with free trade interests. In view of the underlying subjectivity arising from both, judicial discretion and states’ conceptions, this article so contextualizes the security exception, including by tracing its historical underpinnings. It considers the application of the good faith requirement and significantly, examines whether security interests can objectively be determined.

Journal

Global Trade and Customs Journal – Kluwer Law International

Published: Nov 1, 2022

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