Norms and National Security: The WTO as a Catalyst for Inquiry

I. INTRODUCTION Multilateral treaties often include a national security exception as an opt-out mechanism for a state party to free itself of constraints otherwise imposed by the agreement. The standard view is that such "escape clauses" allow states to elevate their security interests above international commitments and, thereby, evade international obligations. A state's invocation of such a provision is, therefore, generally viewed as a retreat from compliance with international norms. The standard account goes like this: National security is the Achilles' heel of international law. Wherever international law is created, the issue of national security gives rise to some sort of loophole, often in the form of an explicit national security exception. The right of any nation-state to protect itself in times of serious crisis by employing otherwise unavailable means has been a bedrock feature of the international legal system. As long as the notion of sovereignty exerts power within this evolving system, national security will be an element of, as an exception to, the applicable international law.1 Recent US practice before the World Trade Organization ("WTO") appears to confirm this view. The General Agreement on Tariffs and Trade ("GATT") effectively restricts a state's ability to enact unilateral economic sanctions, unless the action fits within an enumerated exception. Article XXI provides one of those exceptions; it stipulates that a state can opt out of GATT requirements for actions taken to protect "essential security interests."2 The United States has invoked this provision on two occasions-to defend the Helms-Burton secondary boycott against Cuba and the Massachusetts selective purchasing law against Burma. The United States argued, in part, that these measures served its security interests because they responded directly to human rights violations committed by the respective regimes. Many commentators view this position as another instance of US resistance to, and the breakdown of, international legal norms. 0In this brief essay, I argue that, in principle, the United States' position involves a wholly legitimate definition of "security interests" and that the US stance, rather than representing a retreat from international legal norms, reflects and contributes to them. In making this claim, I rely on the legal and social history following World War II that has integrated into the concept of security interests a concern for human rights conditions in other countries. Based on this history, I submit that the US invocation of the particular defense-that another state's severe mistreatment of its citizens threatens US security interests-accords with emergent international norms. Of course, the US taking this position before the WTO may diminish compliance with international trading obligations. However, the dimension that I explore hereconsistency with and furtherance of robust international norms of security-should be taken into account in rendering any broad assessment of the relationship between the US actions and international norms. Indeed, I use the opportunity of this essay to suggest a few implications this particular dimension has for understanding the construction and operation of international norms more generally.3 While the WTO controversy mainly provides the occasion for starting such a discussion, it is also important to analyze the discussion's particular importance for the WTO. Let me first address some of those issues before examining the broader theme of normative constructions of security and human rights. II. SIGNIFICANCE FOR THE WTO My analysis of the normative scope of security interests is relevant to a number of international agreements, but it has special significance for the WTO. First, many were concerned that the US government's recent invocations of the national security exception tore at the fabric of the WTO. A number of states, policymakers, and scholars criticized the United States on the ground that its proffered concerns exceeded the definition of security interests. …