Trade and Security Among the Ruins
54 Pages Posted: 27 Jul 2020 Last revised: 28 Jul 2020
Date Written: July 27, 2020
The collision of trade and security interests is taking place today in an increasingly fragmented landscape. Governments’ conceptions of their own vital interests are undergoing a rapid transformation, as the concept of “national security” expands to encompass issues such as national industrial policy, cybersecurity, and responses to climate change and pandemic disease. At the same time, the system for settling trade disputes is being pulled apart by competing tendencies toward legalism and deformalization. Last year, a landmark decision suggested that international adjudicators could oversee this clash between security and trade, deciding which security interests can override trade rules and which ones cannot. Then the collapse of the WTO Appellate Body threw into doubt the future of a legalized trade regime, suggesting a partial return to a system driven by politics, where governments retain significant discretion to advance their own interpretations of their trade obligations and their security interests.
In this contribution to the Duke Journal of Comparative and International Law symposium on trade and security, I argue that this fragmented landscape provides an opportunity to experiment with different ways of resolving the clash between trade and security. After introducing the expansion of state security interests with reference to recent policy developments, I identify three emerging models for reconciling expanded security interests with trade obligations: structured politics, trade legalism, and judicial managerialism. Each of these models brings tradeoffs in terms of oversight and flexibility, and each is associated with an ideal institutional setting. Rather than attempting to vindicate one model for all settings and all purposes, we should embrace plurality, especially at a moment where the relationship between trade and security appears to be undergoing a historic transformation.
Keywords: International trade, foreign investment, national security, dispute settlement, arbitration, World Trade Organization
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