Public Policy Defences in the Name of Security: Unconventional Security Claims in WTO General Exceptions Jurisprudence

What the paper says

Abstract Outside the conventional scope of national security, States characterize a plethora of issues as security concerns in present-day international affairs. While the securitization of unconventional issues has been studied extensively in relation to national security exceptions under economic treaties, States’ use of unconventional security claims in invoking public policy exceptions, where the legal text contains no security-related terms, has attracted less academic attention. This article investigates the WTO judiciary’s approach to unconventional security claims raised under the GATT/GATS general exceptions, focusing on energy security as a case study. It demonstrates how the WTO judiciary has used two ‘old’ legal techniques from well-established general exceptions jurisprudence to examine ‘new’ energy security claims: framing regulatory objectives and identifying origin-based discriminations. The article finds that the WTO judiciary tends to be more permissive with energy security claims that are more closely related to the conventional, defence-oriented security notion; claims that are more distant from the conventional conception are also given substantial regard, but subject to more cautious scrutiny.