The Unsettled Governance of the Dual-Use Items under Article XXI(b)(ii) GATT: A New Battleground for WTO Security Exceptions

Abstract

In an era marked by the ‘technologization’ of modern warfare and the privatization of military supply chains, numerous items possess dual-use potential, capable of serving both civilian and military ends. Concurrently, governments increasingly view the acquisition of specific goods, materials, services, and technologies by rival states as a threat to their security. As a result, economic restrictions imposed on dual-use items, including export controls, have proliferated in recent years. These measures have elicited concerns regarding disguised protectionism and potential non-compliance with trade agreements. Central to the debate is the difficulty to strike a balance between addressing legitimate security imperatives and preventing economic protectionism. This article delves into the intersection of trade and security in the regulation of dual-use goods. It offers a focused examination of Article XXI(b)(ii) of the General Agreement on Tariffs and Trade (GATT) concerning trade restrictions on products destined for military use. The paper first reveals limitations of this provision in governing the regulation of dual-use items. Furthermore, it introduces the concept of a ‘purpose test’ provided by the provision as a safeguard against abusive invocation. Lastly, it sheds light on the challenge posed by the standard of proof issue, which complicates the review and mitigation of bad-faith invocations of security exceptions.