A Re-Conceptualization of WTO Law’s Security Exceptions : Squaring the Circle and Judicializing National Security

The paper provides an analysis of WTO law's security exceptions. First, it examines if acts adopted with reference to national security are reviewable and, if they are, which elements are reviewable and what defenses, if any, are enjoyed by member states? Second, it inquires whether WTO law’s ban on self-help prevents member states from reacting to the excessive use of the security exception or permits them to “rebalance” against security measures without first undertaking the WTO’s dispute settlement process?The paper argues that security exceptions should be conceived as quasi-reservations limiting the scope of treaty obligations and, as such, they are only slightly judicialized and reviewable only under the highly deferential good faith standard. While security exceptions are reviewable in regard to scope, they put an otherwise rather weak check on member state actions. Nonetheless, acts adopted under this exception may nullify lawfully acquired benefits and, as a corollary, may give rise to non-violation claims. Furthermore, it is also argued that member states whose interests are impaired by security measures may have the right to rebalance under Article XIX GATT (safeguard measures)