Current Issue

  • Volume 30,
  • Number 2 -
  • Spring 2020

Symposium on National Security and Trade Law

An Introduction to Trade and National Security: New Concepts of National Security in a Time of Economic uncertainty
Elizabeth Trujillo
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Within the context of enhanced rhetoric about the need for national security measures to protect domestic economic interests, the Duke Journal of Comparative & International Law hosted a Symposium on National Security and Trade Law in which speakers raised questions as to not only what is meant by national security today, but also the significance of invoking national security exceptions in trade. This Introduction provides an overview of issues discussed as well as some reflections on the use of the national security exception in trade during a time when nations are moving away from international cooperation towards unilateralism and facing global crises such as the COVID-19 pandemic. With the World Trade Organization’s recent panel decision, Russia—Measures Concerning Traffic in Transit , the international community received some guidance as to the limited use of this exception under GATT Article XXI and the need for good faith by nations invoking it, but larger questions remained as to its applicability in the context of economic insecurity and in the context of broader global challenges such as cybersecurity and climate change. Furthermore, with the current dysfunction of the Appellate Body of the WTO, there is no central adjudicatory body to address these issues in a systematic fashion, leaving it up to the nations or ad hoc adjudicatory processes to decide, rendering the multilateral trade framework an even more fragmented system. New ways of imagining the role of trade in the context of global and economic crises are needed, as well as more resilient institutional frameworks that can adapt to future forms of insecurity and allow for varied, constructive forms of dialogue among nations.

Trade and Security Among the Ruins
J. Benton Heath
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The collision of trade and security interests is taking place today in an increasingly fragmented landscape. Governments’ conceptions of their own vital interests are undergoing a rapid transformation as the concept of “national security” expands to encompass issues such as national industrial policy, cybersecurity, and responses to climate change and pandemic disease. At the same time, the system for settling trade disputes is being pulled apart by competing tendencies toward legalism and deformalization. Last year, a landmark decision suggested that international adjudicators could oversee this clash between security and trade, deciding which security interests can override trade rules and which ones cannot. Then the collapse of the WTO Appellate Body threw into doubt the future of a legalized trade regime, suggesting a partial return to a system driven by politics.

I argue that this fragmented landscape provides an opportunity to experiment with different ways of resolving the clash between trade and security. After introducing the expansion of state security interests with reference to recent policy developments, I identify three emerging models for reconciling expanded security interests with trade obligations: structured politics, trade legalism, and judicial managerialism. Each of these models brings tradeoffs in terms of oversight and flexibility, and each is associated with an ideal institutional setting. Rather than attempting to vindicate one model for all settings and all purposes, we should embrace plurality, especially at a moment where the relationship between trade and security appears to be undergoing a historic transformation.

A Proposal for a Committee on National Security at the WTO
Simon Lester & Inu Manak
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World Trade Organization (WTO) committees meet regularly to monitor and oversee the implementation of the WTO agreements. It rarely makes the news, but this work is nonetheless an important supportive function of the organization. The committees cover a wide range of topics, and some have been added from time to time. In this Article, we propose a Committee on National Security to address the growing challenge to the trade regime presented by national security measures. WTO litigation has a limited ability to handle these sensitive issues, and there would be great value in a committee designated to provide oversight of these measures. This would include the following components: a forum for regular discussion and coordination of approaches on trade-related aspects of national security matters; a monitoring mechanism to increase transparency on the use and application of national security measures; a Technical Group for developing recommendations and guidelines; and a process for immediate rebalancing, either through compensation or retaliation, where such measures have been imposed and their impact on trade can be demonstrated.

Export Controls: America’s Other National Security Threat
Chad P. Bown
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The Trump administtation’s allegations that some imports are a threat to America’s national security have received wide publicity during 2017–20. But the administration was undertaking a more quiet U.S. policy shift on the export side in the same time frame. Addressing the national security threat presented by exports posed different economic and institutional challenges from those associated with import policy, including the acknowledgment that export controls for legitimate national security reasons can be the first-best policy to address the problem at its source. Yet, export controls could also be misused as a beggar-thy-neighbor policy to redistribute economic well-being across countries, even from one ally to another. This paper describes how U.S. export control policy evolved over 2017–20, as well as the international institutions—first the Coordinating Committee for Multilateral Export Controls, then the Wassenaar Arrangement—historically tasked with multilateralizing U.S. export restrictions used to protect national security. With the potential for U.S. export control policy to brush up more frequently against World Trade Organization (WTO) rules designed to limit the use of export restrictions, the paper also highlights new challenges for the WTO’s system of resolving trade disputes. Overall, a U.S. failure to strike the right balance for its export control policy would result in it being ineffective at addressing national security risks, costly for the economy, and problematic for trade and diplomatic relations.

Article

International Humanitarian Law and the Targeting of Non-State Intelligence Personnel and Objects
Michael N. Schmitt
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This Article examines the targetability of individuals and organizations performing intelligence functions for a non-State group involved in an armed conflict. Specifically, it considers the circumstances under which they lose the international humanitarian law (IHL) protections from, and during, attacks that they would otherwise enjoy as civilians. To do so, the piece deconstructs IHL’s “organized armed group” construct to determine when an intelligence organization can be characterized as a component thereof. Noting that some non-State groups consist of both entities involved in the hostilities and organizations having no relationship to them, the Article introduces the concept of a non-State group’s “overall OAG,” a notion that parallel’s the characterization of a State’s various military units as its “armed forces.” Additionally, the Article assesses the circumstances under which individuals engaged in activities intelligence who are not members of an OAG may be targeted on the basis of their “direct participation in the hostilities.”

Notes

Responding to Election Meddling in the Cyberspace: An International Law Case Study on the Russian Interference in the 2016 Presidential Election
Alex Xiao
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International law is not the most perfect legal regime, and, perhaps to no one’s surprise, it is even less perfect in cyberspace. The United States has been a victim to a series of malicious cyber operations in recent years, and the key question is how to respond to and deter them. This Article offers a detailed survey of the Russian interference in the 2016 presidential election in the context of international law. Adapting the framework created by Tallinn Manual 2.0 , the Article examines the international legal basis of the response measures employed by the United States and other possible alternative responses to the Russian operation. It concludes that none of these responses are both squarely supported by international law and desirable as a matter of national security police. This Article intends to show that international law contains considerable gray areas in the cyber realm that allow sophisticated adversaries like Russia to harm the core interest of the United States without substantial legal repercussions. The Article concludes by suggesting that a deterrence mechanism based on proactive national security policy would be more effective and practical than one based on international law.

Steel Standing: What’s Next for Section
Kayla Scott
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This note considers possible legal challenges to the original Section 232 steel order and recommends different actions for alleviating the problem of broad executive power delegated by Congress in Section 232. Parts I and II provide an introduction and background to Section 232. Part III analyzes the constitutionality of Section 232 under both the Court’s current jurisprudence of the nondelegation doctrine and potential changes to the doctrine suggested by the dissent in Gundy . Part IV assesses potential challenges to the steel order under the theory that the President acted outside of the scope of his authority conferred by the statute. Part V assesses whether the action is consistent with global trade rules and what the potential effects of a WTO violation are under domestic law. Lastly, because of the weakness of the legal arguments against Section 232 and the steel order, Part VI provides recommendations for how Congress, as opposed to the courts, might deal with the problems posed by Section 232.