ABSTRACT
The "national security" exception is a preserve
for sovereign power which finds a place in the 1947 General
Agreement on Tariffs and Trade (hereinafter "GATT"), and
practically all subsequent trade agreements, but has never been
tested in a trade dispute. The reason is simple: while it has been
invoked a few times, matters have never escalated sufficiently for
it to be tested.
However, there are currently ten disputes (including eight
against the United States) pending at the World Trade Organization
(hereinafter "WTO") where the "national security
exception" has been invoked as a defence for WTO-inconsistent
policies. The timing of these disputes in view of the rising
protectionism by various countries in itself raises interesting
questions about the intent and purpose of such an exception, i.e.,
whether it is a genuine exercise of the security exception, or a
cover for protectionist action.
