Security Exception Clauses in Post-Globalization — A Study of the GATT/WTO Regime in Historical Perspective

Yoshinori Abe
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Yoshinori Abe: Professor, Faculty of Law, Gakushuin University

Public Policy Review, 2024, vol. 20, issue 1, 1-33

Abstract: This paper looks back historically at the General Agreement on Tariffs and Trade (GATT) /World Trade Organization (WTO) system and examines the position and role of the security exception clause, which has been the focus of much attention in recent years. The GATT period coincided with the Cold War era, when the Soviet Union (USSR) and China were not GATT contracting parties, and trade restrictive measures against the USSR and China were outside the scope of the GATT law. Therefore, there was little need to justify export restrictions in the context of geopolitical conflicts under the security exception clause. In addition, since the GATT dispute settlement procedure adopted the consensus approach, the interpretation and application of the security exception clause was unlikely to be challenged before a panel, and the function that the clause had to fulfill in the GATT regime was relatively small. In the period of globalization when the WTO was established, China and Russia also joined the WTO. However, after the end of the Cold War, export control measures such as the Coordinating Committee for Multilateral Export Controls (COCOM) regulations were no longer in place, so there was no need to justify such measures by the security exception clauses. In the post-globalization period, however, the conflict between liberal and democratic economies and state-controlled and authoritarian economies became apparent within the WTO system, and the relationship between trade restriction measures taken against the background of geopolitical conflict and security exception clauses became the focus of attention. In addition, since the WTO dispute settlement procedure adopts a negative consensus approach, the use of the security exception clause has been judicially reviewed by panels. However, the US has taken the position that the security exception clause is self-judging in nature and is trying to ensure the freedom of its own national security policy.

Keywords: GATT; WTO; security; exception; clause; geopolitical; conflict (search for similar items in EconPapers)
JEL-codes: F13 K33 (search for similar items in EconPapers)
Date: 2024
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