Security exception and the question of interpretation

For those following the issue of cybersecurity, cyber warfare and international remedies an interesing debate on the use of the security exception of the GATT to address the issue is found in an Opinio Juris debate here. The IELP blog has a commentary here. I have blogged about the security exception earlier here and here.

Article XXI of the GATT which deals with the Security Exception states:

          "Nothing in this Agreement shall be construed

(a)      to require any contracting party to furnish any information the disclosure of which it considers contrary to its essential security interests; or
 

(b)      to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests
 

(i)       relating to fissionable materials or the materials from which they are derived;

(ii)      relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment;
 

(iii)     taken in time of war or other emergency in international relations; or
 

(c)      to prevent any contracting party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security."

The issue of the cybersecurity knocking at the doors of WTO has been discussed in trade circles for sometime now. However, will it find a way through the security exception? Is a self-judging security exception without interpretative limits? Can it be interpreted to suit any national need? Are there inherent limits ot the application of the principle? The dispute settlement proceeding of the WTO has not had an opportunity to interpret the security exception clause yet.Increased use and an eventual challenge may provide it an opportunity to set the contours of the exception like it has int he case of Article XX of the GATT which deals with general exceptions. Till then it is upto the individual members to interpret the provisions. However, the self-judging nature of the clause "which it consider necessary" may not be entirely over-expansive considering the context of the exception itself. 

Cyberespionage and the WTO now!

Now a study that looks at cyberespionage as an economic issue and warranting action under the WTO! 

James A.Lewis contends in his study for the Centre for Strategic and International Studies titled "Conflict and Negotiation in Cyberspace"  that the issue is of such importance that it justifies remedy under Article XXI (Security exception) of GATT.

"WTO rules include security exceptions that clarify that the agreed should not be construed as preventing “a Member from taking any action which it considers necessary for the protection of its essential security interests.” The exception provides the vehicle for the United States and its allies to move outside the constraints of the WTO to address cyber espionage. It would be a significant reinterpretation of this exception to use it to justify a vigorous response (or to threaten a vigorous response) to cyber espionage. Many in the trade community would oppose this kind of dramatic action, but a public discussion of it by U.S. officials and initial steps may be necessary to change the behavior of other states."

I am not a security expert, but using the WTO Agreement to move out of the WTO framework caught my attention. Interesting...