Terror on the High Seas: The Trade and Development Implications of U.S. National Security Measures

63 Pages Posted: 30 Aug 2007

See all articles by Marjorie Florestal

Marjorie Florestal

University of the Pacific - McGeorge School of Law

Abstract

National security has become the byword in a post-September 11 world order. In the face of increasing terrorist threats to domestic ports and the global supply chain, the U.S. impulse to take protective action is at the very least understandable. The question therefore is not should the United States take security measures but how should it implement such measures? The Container Security Initiative, the cornerstone of U.S. efforts to safeguard America's ports, ships and cargo, strikes a balance between protecting U.S. interests without unduly burdening the efficacy of the supply chain. It wholly fails to acknowledge or explore the potential disruption to the trade of developing countries - the world's most fragile economies. This article maintains that by failing to consider its impact on development, CSI fails to strike the proper balances. CSI thus violates U.S. obligations under Article I of the General Agreement on Tariffs and Trade, and it is not justified under the national security exception of GATT Article XXI because it lacks a development dimension. This development dimension is implicit in Article XXI when interpreted in context in light of the object and purpose of the WTO Agreement. What does this development dimension entail? How might we craft future measures that protect domestic security while minimizing their trade-distorting, discriminatory, and development-reducing effects?

Suggested Citation

Florestal, Marjorie, Terror on the High Seas: The Trade and Development Implications of U.S. National Security Measures. Brooklyn Law Review, 2007. Available at SSRN: https://ssrn.com/abstract=945012

Marjorie Florestal (Contact Author)

University of the Pacific - McGeorge School of Law ( email )

3200 Fifth Avenue
Sacramento, CA 95817
United States

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