Campus Tilburg University hoogleraren

PhD Defense O. Hrynkiv

Date: Time: 13:30 Location: Aula

National Security Exceptions: A Shield or a Weapon? Balancing States’ Autonomy to adopt Security Measures and International Economic Law

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For nearly seventy years, countries did an excellent job of protecting the multilateral trading system from deciding whether national security was a legitimate defense for any given country’s measures, whether it was a trade ban, sanctions, or export restrictions. Then, in 2017 and 2018, several panels of the World Trade Organization (WTO) were established after respondents declared that they considered the challenged measures necessary to protect their essential security interests. Notably, these disputes started to mushroom when national security rhetoric gained prominence, partly due to emerging concerns raised by cybersecurity, geo-economic rivalry, technological nationalism, climate change, supply chain crisis, and migration flows. Such concerns have provoked reforms and strategic policies. Yet, by attempting to restore their sense of security, states have actually enlarged insecurity in the global economy, for example, by claiming that security exceptions can allow anything under the sun. The question that this dissertation tackles is how countries can restore the balance between states’ autonomy to protect national security and binding international law, taking into account new economic and political realities.

This dissertation argues that existing security exceptions are either drafted too broadly, making it difficult to control their good faith application and creating verification problems for international courts, or too narrowly, arguably excluding from their scope the protection against insidious, imminent, yet severe emerging security threats. There is a risk that both approaches might undermine the balance between states’ sovereignty and international economic law by unjustifiably limiting the ability of states to take efficient security actions or opening the door to protectionism or opportunism by allowing any measure that a state considers necessary.

Unlike other proposals, this dissertation starts from the premise that countries will be given the most space for dialogue if they admit that some national security questions are more prone to stricter regulation than others. To this end, this dissertation suggests states renegotiate existing security exceptions and change the approach to drafting them in future agreements.

This dissertation synthesizes the existing doctrinal and empirical work on the application of security exceptions under international trade and investment law but also turns to the case studies of the United States, the European Union, and BRICS countries (Brazil, Russia, India, China, and South Africa) – by virtue of the economic and political power of such WTO members, their importance in global supply chains, and their roles in the transformation of the global order. It aims to expand the rulebook on the application of security exceptions, improve cooperation between the WTO and the United Nations, and incentivize states to use trade and investment restrictions more efficiently, thereby permitting more policy space for calibrated responses to new externalities while reinforcing the function of security exceptions to shield states from responsibility only in extreme situations. The interdisciplinary constituency of such research affects the normative understanding of security exceptions and enables the discussion over the practice of application of security measures from different analytical lenses, making this research interesting for practitioners, academics, and policymakers dealing with the intersection between international economic law and national security.