Commercializing National Security? National Security Exceptions’ Outer Parameter under GATT Article XXI

Asian Journal of WTO & International Health Law and Policy, Vol. 13, No. 2, pp. 277-310, September 2018

34 Pages Posted: 22 Oct 2018

See all articles by Jaemin Lee

Jaemin Lee

Seoul National University - College of Law

Date Written: September 28, 2018

Abstract

The security exceptions under the GATT Article XXI set forth an important carve-out for WTO Members. The provision arguably contains an element of a “self-judging” nature. It also extends to other non-military and commercial sectors. Nonetheless, the provision remains subject to a WTO panel’s review. The provision also sets forth specific requirements to be fulfilled before it is properly invoked. In particular, the terms “for the purpose of supplying a military establishment” and “other emergency in international relations” establish an important outer parameter for the interpretation and application of the provision. The negotiating history and ordinary meaning interpretation of these two terms also support such conclusion. As such, irrespective of and without prejudice to the self- judging nature of the article, proper invocation of Article XXI would demand showing of the satisfaction of these two requirements of the provision.

Keywords: security exceptions, national security, essential security interests, Section 232, GATT Article XXI, necessity defense, self-judging provision

Suggested Citation

Lee, Jaemin, Commercializing National Security? National Security Exceptions’ Outer Parameter under GATT Article XXI (September 28, 2018). Asian Journal of WTO & International Health Law and Policy, Vol. 13, No. 2, pp. 277-310, September 2018, Available at SSRN: https://ssrn.com/abstract=3256689

Jaemin Lee (Contact Author)

Seoul National University - College of Law ( email )

San 56-1 Kwanak-gu, Shilim-dong
Seoul, 151-742
Korea

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