The limits of the national security exception under

international trade law

)Literature Review (
 Introduction

The author developed literature review techniques based on suggestions from

peer reviewers, my conceptual model, and practical considerations. These techniques

included inclusion and exclusion criteria to identify potentially pertinent articles, search

strategies to locate articles, review protocols, and a system of rating published studies

for completeness.

Previous studies

The GATT's rules lay out the framework for a system that would lower tariffs

and other trade obstacles to promote global commerce. Many areas of global energy

commerce have evolved outside of the GATT's framework or with the implicit

expectation that Article XXI or another GATT exemption would exclude them from the

standard GATT provisions. However, several recent accords and court rulings have

mandated free trade objectives to take precedence over concerns of energy trade

national security (Donald N Zillman, (1994).

The National security exemption under GATT outlines one restriction on the

applicability of GATT laid forth in Article XXI. Article XXI essentially asserts that the

objectives of trade liberalization may be replaced by other ideals. The full text of the

clause is as follows: "Nothing in the Agreement shall be construed: (a) to oblige any

Contracting Party to supply any material, the revelation of which it judges to conflict

with its Essential Security Interests (Donald N Zillman, (1994).

 The General Agreement on Tariffs and Trade/World Trade Organization's

(GATT/WTO) dispute settlement procedure was revised as part of the Uruguay Round

in 1994, making it a forum for traditional trade issues as well as concerns ranging from

national security to environmental protection. The WTO's rule-based, quasi-obligatory

dispute settlement system and the emergence of the WTO have caused a significant

shift toward legalism, making the GATT's jurisdictional limits significant issues in

dispute resolution within the WTO (Schloemann, H. L., & Ohlhoff, S. (1999).

In comparison to other areas of international law, international trade law is

growing far more quickly, and in the wake of the Uruguay Round, increasingly more

aspects of interstate economic ties are being incorporated into constitutional

frameworks. The WTO's dispute settlement system, which was established by the

Understanding of Rules and Procedures Governing the Settlement of Disputes (DSU), is

crucial to upholding its regulations and balancing the interests of all of its members.

Given the mandatory nature of the conflict resolution process, its scope is rather

constrained, and this is also true of the organization as a whole's constitutionalization

(Schloemann, H. L., & Ohlhoff, S. (1999).

Explicit national security exclusions are routinely drafted into treaties in

response to national security concerns. This argues that if a treaty doesn't explicitly

include an exception, there probably isn't one because there doesn't appear to be any

good reason why it couldn't just be included. Since it will only make it simpler to obtain

signatures, there aren't many reasons not to include such an exclusion clause in a treaty
(Rose-Ackerman, S., & Billa, B. (2007). Furthermore, the fact that these exceptions

take different forms in different treaties further suggests that any exceptions must be

expressed by the specific terms of the treaty at issue and that there is no unified doctrine

of national security exceptions that can be used in all treaty contexts (Rose-Ackerman,

S., & Billa, B. (2007).

Instead, if there are express exclusions for national security, they are adapted to

the particular treaty. Furthermore, even when explicit national security exclusions are

present in a treaty, it is common for such exceptions to apply inconsistently to various

parts and for some provisions to be marked as non-derogable. Article 4 of the

International Covenant on Civil and Political Rights serves as a notable illustration

(Rose-Ackerman, S., & Billa, B. (2007). Seven articles of the treaty are listed as

nonderogable in Article 4(2) of the ICCPR. Antidiscrimination laws are likewise listed

as being non-derogable in Article 4(1). A method for notifying the public emergency

that justifies any derogations is established in 4(3), and it states that any derogations

must be justified. A further illustration is Article XXI of the GATT, which provides a

more comprehensive national security exemption to the disclosure of information,

which is regarded as a secondary responsibility under the GATT (Hahn, M. J. (1990).

Realism, where state power and state interests are considered as establishing the

limitations on state interactions, has long been the preeminent world political

framework for international participation. This helps us comprehend how and why

nations engage in a world that is controlled by international institutions and the

agreements that preceded them, new ideas are emerging more often. Nowhere is this

more obvious than in the area of world trade organization-governed international

economic interactions (Emmerson, A. (2008). This article examines whether the WTO

security exclusions are based on legal or political principles, and how that affects our

current and potential future understanding of international state interaction.

One of the authors of the original Draft Charter responded to a question about

the definition of "essential security interests" during discussions in the Preparatory

Committee's Geneva session by saying, "We gave the question of the security exception

that we thought should be included in the Charter a good deal of thought. We saw that

there was a serious risk of establishing a precedent that was too broad, and we could not

simply write into the Charter, "by any Member of measures relevant to a Member's

security interests," because that would allow for anything. To prevent the adoption of

protection for maintenance industries under every possible case, we considered it best to

create rules that would take care of legitimate security concerns while also limiting the

exception to the extent that we could (GATT-AI-2012-Art21).

There must be some room for security precautions in this situation. In essence,

everything comes down to balance. We must make some exclusions. We cannot restrict

actions that are necessary just for security reasons, thus we cannot make it too strict.

However, we cannot make it so wide that nations would implement security-related

measures while truly doing it for economic gain ((GATT-AI-2012-Art21). In response,

the Chairman of the Commission suggested that the sole safeguard against abuses of
this nature was the spirit in which Members of the Organization would read these

regulations. (EPCT/A/PV/33, p. 20-21 and Corr.3)

To support exclusions from the GATT 1994's anti-discrimination requirements,

Article XX has proved a useful tool. Experts generally agree that this Article is the most

likely justification for any climate change mitigation program that violates GATT 1994

responsibilities. This article discusses the prerequisites of the National Security

exception in Article XXI while also taking into account the requirements of the Article

XX exclusions, which are not in question here. This article argues that it is improbable

that the National Security exception could be properly employed in these circumstances

without member consensus to the contrary, even while it is plausible that this exception

may be used for climate change mitigation actions (Deane, F. (2012).

Several WTO members have invoked GATT's Article XX to defend actions that

would otherwise violate WTO rules. When measures have been established to safeguard

the environment or ecosystem life, Article XX has been a useful tool against the anti-

discrimination rules of the GATT 1994. It could be feasible for this Article to support

efforts to combat climate change that might otherwise violate member responsibilities

(Deane, F. (2012). However, parties preferring to depend on Article XX have faced a

variety of difficulties. For instance, the values emphasized in Article XX must be

consistent with the measure's stated goal.

Climate change mitigation strategies may be covered under the security

exceptions in Article XXI. Despite a recent remark by the UN Security Council

President underlining the risk that climate change poses to current national security

challenges, this idea is difficult to defend. Without member approval, it is unlikely to be

accepted (Deane, F. (2012). But it needs further thought, both to see whether it can be

used to support policies that reduce the effects of climate change and to make sure it

isn't used to support protectionist actions that pass for environmental protection.

In the present discussion of World Trade Organization law, Article XXI—the

national security exemption of the GATT 1994—has not been adequately examined.

This important region has just lately been thoroughly examined (Kitharidis, S. (2014),

in his work argues that the states parties concluded during the talks leading up to the

creation of the WTO that the provision should not be inserted separately but rather

grouped with the general exceptions of Article XX.

Through an assessment of the current debate and case law, (Kitharidis, S. (2014)

offers a thorough explanation of the confusing national security exemption in his paper.

To illustrate the principles of the Articles and their restrictions, the article discusses the

scope and justiciability of Articles XX and XXI. In doing so, it will evaluate how well

both exceptions were used to examine how the articles were invoked using the example

of climate change((Kitharidis, S. (2014).

To show the validity and relevance of the national security clause, it also

addresses its uncontroversial features (Kitharidis, S. (2014). He goes on to analyze the

difficulty of using the national security exception and adds a theoretical examination of

the WTO Panel's responsibility for interpreting the exception into his analysis. Finally,
he elaborates on the question of whether states are reluctant to submit Article XXI

disputes to the WTO Panel in his analysis of the future of the national security clause

(Kitharidis, S. (2014).

The World Trade Organization (WTO) and General Agreement on Tariffs and

Trade (GATT) have inconsistent national security practices. The fundamental query of

the security exceptions has not been addressed, from the Nicaragua Embargo to China-

Rare Earth. The security exemption is not entirely self-judging, according to the

analysis of Article XXI(b)(iii) in line with Articles 31 and 32 of the Vienna Convention

on the Law of Treaties (Peng, S. Y. (2015). This essay contends that the good faith

standard can clarify the limitations of self-judging authority. This essay shows that fact-

finding and evidence-gathering are the most problematic element of the use of such

exclusions after using the prospective conflict over Huawei as an excuse to examine the

trade implications of security measures (Peng, S. Y. (2015).

The responding member invoking Article XXI(b) must "genuinely believe" that

cyber security regulations based solely upon where the suppliers' headquarter is located

in a globally connected world can contribute to the achievement of the country's

national security protection and "reasonably" classify cyber security as "essential

security interests" in the context of an "international relations emergency" (Peng, S. Y.

(2015). This article contends that a WTO panel should actively intervene after

conducting the two-stage exercises of the "good faith test" by obtaining information

from other governments or nongovernmental organizations, analyzing and weighing the

evidence, carefully balancing rights and obligations created by the WTO Agreement,

and establishing an appropriate trade regime to address cyber security threats (Peng, S.

Y. (2015).

Since the General Agreement on Tariffs and Trade (GATT) was established in

1947, Article XXI has not undergone any changes. The Security Exceptions outlined in

Article XXI, however, do not adequately reflect recent political and economic events.

Additionally, there are significant inconsistencies between the wording of the GATT

and the security exclusions that have been inserted into the General Agreement on

Trade in Services and the Trade-Related Aspects of Intellectual Property Rights

Agreement, which leads to misunderstanding (Yoo, J. Y., & Ahn, D. (2016). With

noticeable differences from those of the World Trade Organization, security exception

clauses have occasionally been included in several free trade agreements (WTO).

Cybersecurity, terrorism, and energy security are just a few of the very varied

aspects of national security that the present global trade system must address. The topic

of how to transform such obscure security exception clauses into practical legal rules is

brought up by this circumstance. This paper identifies the systemic difficulties in

properly implementing the Security Exclusions by examining legal changes in the WTO

and Free Trade Agreement security exceptions (Yoo, J. Y., & Ahn, D. (2016). To

prevent adding an extra and unjustified burden to the dispute resolution system, the

WTO Members must resolve this matter as soon as practicable.

 National screening of incoming foreign direct investment and international

commerce are two scenarios where national security-based procedures are being used

more often. While international economic law acknowledges that States have the option

to take action to defend national security, it may violate different international legal

duties to impede investment and impose trade restrictions. The legal problem is figuring

out whether countries unjustifiably expand that latitude by falsely claiming national

security to excuse abuses like protectionism (Slawotsky, J. (2018).

Reviewing the use of the national security exemption must adhere to a proper

criterion that balances states' rights to address serious concerns without impeding the

growth of the global economy or interstate cooperation (Slawotsky, J. (2018). Too

much courtesy will encourage the invocation and misuse of the exception. However,

excessively strict inspection will destroy the exception. A practical and adaptable

criterion is required for the national security exception to handle issues at a time of

hegemonic struggle (Chaisse, J. (2015).

National security is no longer just limited to armed warfare; economic and

technical security are increasingly major considerations. Additionally, the conceptual

foundations of the exception, such as the standard of "necessity," have to be modified

because they were created in a different period. This article aims to fill a gap in the

literature and encourage discussion on a standard that hasn't been well covered there.

The necessity for a suitable norm becomes obvious given the complexity of national

security, its variation among States, and its potential for misuse (Slawotsky, J. (2018).
 The national security exemption standard should be created within the greater

framework of rights and obligations as expressed by globalization, as opposed to

developing the standard in isolation. This paper takes a fresh approach by looking at the

criteria Delaware courts use to assess behavior to safeguard company security as a

reasonable model for assessing national security measures in the context of international

economic law. When directors are faced with corporate security challenges, a legal

structure that empowers and concurrently regulates corporate boards of directors

provides a suitable background for evaluating the norm (Slawotsky, J. (2018).

There was a need for research to investigate the effects on the national security

of a prospective World Trade Organization (WTO) dispute over data flow limitations. It

suggests a fundamental conceptual framework for evaluating the limitations placed on

data transfers under the General Agreement on Trade in Services (GATS) security

exception. The defense may argue in favor of its position by citing the security

exemption if a dispute were to be brought before the WTO dispute resolution

(Ferracane, M. F. (2018).

This essay examines three key defenses that may be made: security against

cyber espionage, defense against cyberattacks on vital infrastructure, and access to

information required to stop terrorist threats. To determine whether limits on data

transfers under the GATS security exception are relevant, these three instances are both

legally and technically assessed. More broadly, this analysis can contribute to the
conversation about how to safeguard national security in the digital age (Ferracane, M.

F. (2018).

In the three situations, limitations on information deemed crucial for national

security may increase the cost of some assaults. The hazards would still be widespread,

though, and neither technically nor legally would national security be much improved.

It seems more effective to provide a stronger reaction to cyber-attacks by using

excellent security standards and encryption approaches. Overall, it will be crucial to

look into each situation to see if the measure's breadth (the sectors and data covered) is

deemed reasonable and whether it lessens the risk that the nation would be exposed to

cyber espionage, cyberattacks, and terrorist threats (Ferracane, M. F. (2018).

The link between national sovereignty and the global trading system based on

rules has come under scrutiny in light of recent international trade conflicts between the

United States and other WTO members. Several WTO Members have filed dispute

resolution lawsuits against the United States in retaliation for the Trump Administration

imposing duties on imports of specific steel and aluminum goods under the power

granted in Section 232 of the Trade Expansion Act of 1962. The complaint parties,

which also include China, the European Union, and Canada, have stated that the Section

232 restrictions and the exclusion of some nations from their applicability violate the

WTO accords that the United States has signed (Steinbock, D. (2018).

The General Agreement on Tariffs and Trade (GATT), which serves as the

cornerstone agreement for the WTO and regulates parties' trade in products
internationally, has several of these requirements in its many clauses. Some of the

complaint nations have responded to the Administration's duties by imposing tariffs on

specific U.S. exports without waiting for the conclusion of WTO dispute resolution

procedures. The United States has contested these punitive actions in the WTO in turn.

The United States has claimed concerns related to national security as justification for

the tariffs on steel and aluminum (Steinbock, D. (2018).

Because the United States believes the measures are required to protect its

"essential security interests" under GATT Article XXI—the so-called "national security

exception"—even if the steel and aluminum measures conflict with U.S. obligations

under the GATT, a WTO adjudicator (e.g., a WTO panel) cannot examine whether the

Section 232 measures violate the GATT. Because Congress specifically has the

constitutional right to levy tariffs and regulate foreign commerce, members of Congress

have an interest in the definition of the exemption and how it interacts with other

federal statutes like Section 232 (Steinbock, D. (2018).

Together with the Office of the United States Trade Representative (USTR),

which represents the United States in WTO dispute resolution proceedings, Congress

also finances and regulates government agencies participating in Section 232

investigations. The question of whether the United States might legally rely on GATT

Article XXI to defend against allegations made under other WTO Agreements that do

not provide a comparable exception for national security is not addressed in this

Sidebar. It also does not take into account whether other WTO Members could sue the
US for damages under GATT Article XXIII by filing a "non-violation claim," which

would claim that even if the Section 232 measures do not violate the agreements

because a WTO panel finds them to be justified under Article XXI, they still lessen the

advantages that the complaining Member could reasonably expect (Steinbock, D.

(2018).

It has long been thought of as "self-judging" to invoke the national security

exemption under Article XXI of the General Agreement on Tariffs and Trade (GATT)

1994. Two significant but previously confusing problems were addressed by the panel

of the WTO's dispute resolution body (DSB) in the precedent-setting case of Russia—

Measures Concerning Traffic in Transit. First, the Panel reaffirmed its authority to

examine the use of Article XXI of the GATT 1994 by its members (Wang, C. (2019).

Second, the panel provided a detailed interpretation of Article XXI, focusing on

paragraph (b) and its subparagraph (iii), and held that it has the jurisdiction to decide

whether the objective prerequisites of Article XXI have indeed been satisfactory

whenever a participant elicits the national security exception. The member's discretion

is also expected to be constrained by its good conscience obligation, which, as an

esthetic principle, is an esthetic requirement (Wang, C. (2019).

The global trade regime's security exception has mostly laid dormant for seventy

years. Before being included in the General Agreement on Tariffs and Trade 1994

(GATT 1994) with the establishment of the World Trade Organization, the exemption

first appeared in the General Agreement on Tariffs and Trade 1947 (GATT 1947).
(WTO). However, security exemptions are also present in several other WTO rules,

such as the General Agreement on Trade in Services and the Agreement on Trade-

Related Aspects of Intellectual Property Rights (TRIPS) (GATS).

WTO panels have not had to reach a final determination about the nature and

applicability of these exceptions until lately, possibly as a result of a mix of forbearance

on the part of WTO members and fortunate events (Voon, T. (2019). The security

exemption, however, is now the focus of several contentious disagreements, posing a

danger to the WTO's very existence. The content and background of the security

exception show a long-standing understanding of the very sensitive nature of this

exemption among GATT contracting parties, and now among WTO members. Members

have historically avoided filing lawsuits to contest security-based policies and from

using the security exemption as a justification.

This tradition of restraint is being broken by current disputes over recent tariffs

imposed by the United States as well as other trade restrictions imposed by Russia and

the United Arab Emirates (UAE), which raises the issue of how "self-judging" the

security exception is. Instead of making a WTO panel rule on this contentious issue,

WTO members ought to work together more frequently to address growing problems

with the global trading system (Voon, T. (2019).

The Duke Journal of Comparative & International Law organized a symposium

on national security and trade law, where speakers questioned not whatever is meant by

national security presently, but also the significance of invoking national security
exceptions in trade, in the context of increased rhetoric about the need for national

security measures to protect domestic economic interests. In a time when countries are

moving away from international cooperation and toward unilateralism and are dealing

with major crises like the COVID-19 pandemic (Trujillo, E. (2019).

The international community received some guidance regarding the restricted

use of this exception under GATT Article XXI and the requirement that nations

utilizing it do so in good faith with the World Trade Organization's returning guests

decision, Russia—Measures Concerning Traffic in Transit, but larger questions

remained regarding its potential application in the framework of financial insecurity and

the context of broader global problems like cybersecurity and climate change (Trujillo,

E. (2019).

With the Appellate Body of the WTO being dysfunctional, there is also no

central adjudicatory body to resolve these concerns systematically, leaving it up to the

states or ad hoc adjudicatory processes to determine, further fracturing the multilateral

trade framework. More robust institutional frameworks that can adapt to emerging kinds

of insecurity are required, as well as new ways of conceptualizing the function of trade

in the context of global and economic crises. These frameworks must also provide a

variety of productive forms of international interaction (Trujillo, E. (2019).

A multilateral system must incorporate several escape mechanisms that allow

nations to safeguard their national security interests if it is to remain viable. (Boklan, D.,

& Bahri, A. (2020). Argue that determining these escape windows' ambit and extent,
however difficult, is necessary to make sure that they can't be abused when they are too

broad or unclear. The World Trade Organization has just made its first attempt to define

the scope and use of the National Security Exception in the Panel Ruling in Russia -

Measures Concerning Traffic in Transit.

In this study, they contend that in interpreting this exemption, the Panel used an

objective and a subjective approach. The hybrid interpretation of GATT Article XXI (b)

maintains a systemic equilibrium between the members' sovereign rights (Boklan, D., &

Bahri, A. (2020). With this hybrid interpretation of GATT Article XXI (b), the

members' sovereign rights to use the security exception and their right to free and open

commerce are balanced systematically.

Targeted economic penalties are becoming a more common tool used by

individual governments to pursue their foreign policy objectives. Such unilateral

penalties may or may not be legitimate under public international law. Targeted

governments are compelled to query their legality before international courts, notably

the World Trade Organization (WTO) dispute settlement system, due to their

proliferating nature and potentially detrimental effects. The study examines three forms

of recently implemented unilateral targeted penalties against this background

(Bogdanova, I. (2021). The discussion centers on penalties imposed on human rights

grounds, those directed at individuals responsible for cyberattacks, and those that affect

commerce in information and communications technology and services (ICTS), such as

Huawei sanctions (Bogdanova, I. (2021).

 The WTO inconsistency of these economic constraints is the subject of the study

that follows. After then, it is investigated whether such sanctions might be justified

under the national security exemption of GATT's Article XXI(b)(iii). The conclusion

highlights that even if these measures are used to address national security concerns, the

national security exemption cannot be utilized to justify all forms of unilateral economic

penalties (Bogdanova, I. (2021). This result supports the widespread trend of

challenging the legitimacy of unilateral economic penalties while also illuminating the

unavoidable limits of the national security clause.

Several academics and commentators have suggested that states may use the

national security exception in Article 73(b)(iii) of the TRIPS Agreement to permit the

suspension of patent laws to facilitate the production and importation of patented drugs

and vaccines as a result of the COVID-19 pandemic. In light of the COVID-19

epidemic, this study evaluates seriously the degree to which nations may rely on the

national security exemption (Oke, E. K. (2021). The article acknowledges that states

may be able to use the national security exception in response to pandemics like

COVID-19 by drawing on two recent decisions by WTO Panels in both Russia - Traffic

in Transit (2019) and Saudi Arabia - Intellectual Property Rights (2020), where the

nature and scope of the national security exception were analyzed (Oke, E. K. (2021).

The paper asserts that states without local manufacturing capabilities may not

genuinely benefit from the use of the national security exemption in this situation. The

paper also makes the case that the restrictions outlined in Article 31bis of the TRIPS
Agreement cannot be waived to protect national security (Oke, E. K. (2021). Therefore,

it is questionable whether the TRIPS Agreement's national security exemption is a

practical choice for governments without access to domestic manufacturing.

The content and background of the security exception show a long-standing

understanding of the very sensitive nature of this exemption among GATT contracting

parties, and now among WTO members. Members have historically avoided filing

lawsuits to contest security-based policies and from using the security exemption as a

justification. This tradition of restraint is being broken by current conflicts over recent

tariffs placed by the United States as well as other trade restrictions imposed by Russia

and the United Arab Emirates (UAE), which raises the issue of how "self-judging" the

security exemption is. Instead of making a WTO panel rule on this sensitive issue,

WTO members ought to work together more frequently to address growing problems

with the global trade system.

National security exceptions have become increasingly common, especially

those outlined in Article xxi of the 1994 General Agreement on Tariffs and Trade. In

light of this, this paper examines the nature and boundaries of the Article xxi national

security exception and considers the potential for abuse of this exception to be curbed

by the WTO, particularly its dispute settlement mechanism.

International trade agreements frequently include clauses allowing for

exclusions based on national security, and for good cause. States, for good reason, place

a higher priority on national security and citizen safety than on the economic gains
brought about by trade. Defense "is of much greater significance than opulence," as

none other than Adam Smith stated in 1776 (Smith, A. (1776). 1976). Putting the

country's security first. The General Agreement on Tariffs and Trade 1994 (also known

as the "GATT 1994"), the General Agreement on Trade in Services (also known as the

"gats"), and the Agreement on Trade-Related Aspects of Intellectual Property Rights

(also known as the "trips Agreement") each include an exception for national security in

their respective Articles xxi, xiv bis, and 73 (Van den Bossche, P. L., & Akpofure, S.

(2021).

Note, however, that none of the other WTO multilateral agreements on trade in

goods, except for the Agreement on Trade-Related Investment Measures (‘trims

Agreement’) and the Agreement on Trade Facilitation, contain, or explicitly refers to, a

national security exception (Van den Bossche, P. L., & Akpofure, S. (2021). Whether

the national security exception of Article xxi of the GATT 1994 is available to justify

measures inconsistent with those other WTO agreements, devoid of a national security

exception, such as the WTO Agreement on Subsidies and Countervailing Measures

(‘SCM Agreement’) or the Agreement on Technical Barriers to Trade (‘TBT

Agreement’) remains undecided, but the Appellate Body’s case law on the scope of

Article xx would suggest that it is not.4 National security exceptions are also commonly

found in other multilateral trade agreements such as the International Convention on the

Harmonized Commodity Description and Coding System (‘hs Convention’) as well as

in regional trade agreements (Van den Bossche, P. L., & Akpofure, S. (2021).
 International trade law is now in new territory as a result of COVID-19. The

virus has demonstrated the rules' weaknesses in the face of international crises. The

pandemic highlighted that there are no explicit rules meant to lead a cohesive

international response to handle emerging global risks to security, such as large-scale

natural catastrophes, pandemics, or even human-made crises. The traditional security-

emergency clauses, such as GATT Art. XXI(b)(iii), both in normal times and during

emergencies, are ill-suited to handle the spreading and depth of security. However, the

current situation offers a priceless chance to review and change this security-emergency

provision's flaws (Garcia-Santaolalla, N. (2021).

This paper suggests a broad framework to amend Article XXI and adapt it to the

present international security environment in light of COVID-19 and the role of the

General Agreement on Tariffs and Trade (GATT) in international law. A contradiction

sometimes exists in security-emergency provisions between the need to guarantee that

treaty commitments are carried out and the states' discretion and autonomy to safeguard

their security interests, notably their territory and populations (Blanco, S. M., & Pehl,

A. (2020).

These exclusions have often been viewed from a security perspective that is

primarily military in nature. However, security has evolved through time into a

multidimensional, risk-based notion that includes nonstate actors and nonhuman

threats.2 In fact, COVID-19 has challenged our conceptions of what security is by

showing the ability of problems like sickness to paralyze civilization (Heath, J. B.

(2019). In this vein, the relationship between trade and security is going through a

historical transformation as governments expand the definition of security to include

issues like national industrial policy, corruption, cybersecurity, migration, organized

crime, terrorism, climate change, and pandemics to protect their vital interests (Garcia-

Santaolalla, N. (2021).

The risk of Members invoking a perpetual state of emergency to support

extensive protectionist measures without defined time limits is increased by the

proliferation of security interests.4 For instance, after the pandemic, Members

attempting to deal with the economic fallout and attempting to ensure a sufficient

supply of medical supplies for future crises may see political, legal, or economic

benefits in invoking security provisions to support their actions (Garcia-Santaolalla, N.

(2021).

The main issues with the existing structure of Article XXI(b)(iii) provisions for

times of emergency are that (1) security provisions and some of the public policies

covered by Articles XI(2)(a) for critical shortfalls and XX general exclusions overlap;

(2) it offers inadequate due process measure to protect the misuse, enabling little

accountability and transparency in its application; and (3) it lacks a specific provision to

deal with GLO. Together, these problems led to the introduction of a variety of

contradictory trade policies, which may have worsened the epidemic (Bentley, M., &

Lerner, A. B. (Eds.). (2022).

 A new proper strategy for security that emphasizes efficient crisis-management

methods to meet non-traditional threats is needed in the post-coronavirus environment.

As quasi-threats are presently included in many Members' security agendas, the

inability to address these issues could lead to widespread misuse of adequate safeguards

in the post-coronavirus era (Heath, J. B. Trade and Security Among the Ruins’ (2020b).

At the moment, security regulations are an appealing option for Members looking to

avoid their commitments because these regulations are not subordinate to the very same

close, administrative-law-like criticism of many other provisions (Garcia-Santaolalla,

N. (2021).

One of the most egregious transgressions of international law in recent memory

is the Russian invasion of Ukraine. Several nations have imposed sanctions on Russia in

response to the widespread condemnation of Russian behavior. This article makes the

case that nations can rely on the World Trade Organization's national security

exemption when implementing trade sanctions against Russia (WTO) (Ranjan, P.

(2022). The General Agreements on Tariffs and Trade's Article XXI is the pertinent

legal provision in this case (GATT). The GATT's Article XXI is the subject of a

doctrinal examination in this article (Ranjan, P. (2022).

This study is done in light of two WTO disputes that have interpreted the

national security exception: Russia: Transit case and Saudi Arabia: Intellectual Property

case. Although the national security exemption stated in GATT Clause XXI is not self-

judging, the article contends that nations shall be shown consideration in establishing
their primary security concerns. The current conflict between Russia and Ukraine is

then addressed using this theological approach. According to GATT Article XXI, the

current circumstance qualifies for trade-restricting measures against Russia, such as the

suspension of the most-favorable-nation treatment (Ranjan, P. (2022).

In conclusion, according to the literature evidence base, there have been a lot of

controversies on the limits of the clause of National Security. The need to do more

research deep into the roots of the limits of this exception is of great importance. From

the above literature review is wise to conclude that, the vacate issue of the clause's

justiciability in international commerce, and particularly in the setting of the WTO

system, might be used to legally justify the application of the security exception as well

as limit its application under International Trade Law. The security exemption shall be

strictly complied with.

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