New Security Exception Language Establishes a Two-Tiered Approach
Via Mona Paulsen and Devon Whittle, I see that Chapter 28 of the UK-India trade agreement has some interesting new language on security exceptions. It starts off as expected, with the following:
Article 28.2
Security Exceptions
1. Nothing in this Agreement shall be construed to:
(a) require a Party to furnish any information the disclosure of which it considers contrary to its essential security interests; or
(b) prevent a Party from taking any action which it considers necessary for the protection of its essential security interests:
(i) relating to the production of or traffic in arms, ammunition and implements of war and to other activities carried on, directly or indirectly, for the purpose of supplying or provisioning a military establishment;
(ii) relating to the supply of services as carried on, directly or indirectly, for the purpose of supplying or provisioning a military establishment;
(iii) taken in time of war or other emergency in international relations;
(iv) relating to fissionable and fusionable materials or the materials from which they are derived; or
(c) prevent a Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security
So far, everything looks pretty similar to GATT Article XXI, with a couple adjustments here and there. But then it adds something new:
2. Without prejudice to paragraph 1, nothing in this Agreement shall be construed to prevent a Party from taking any action which it considers necessary for the protection of its essential security interests, including in time of national emergency or relating to the protection of critical public infrastructure, whether publicly or privately owned, including communications, power and water infrastructure, subject to the requirement that such action is not taken in a manner which would constitute a disguised restriction on trade.
This provision identifies an additional range of security measures related to emergencies, with a different legal standard applied to them. While Article 28.2.1(b)(iii) refers to measures "taken in time of war or other emergency in international relations," Article 28.2.2 talks about measures that are "in time of national emergency or relating to the protection of critical public infrastructure, whether publicly or privately owned, including communications, power and water infrastructure." Of particular note is that for this category of security measures, we have a bit of an Article XX feel in terms of the language, as use of the exception is constrained by a "requirement that such action is not taken in a manner which would constitute a disguised restriction on trade." It's also interesting that only the "disguised restriction on trade" element of the Article XX chapeau is included (note that it does not say "international" trade -- I'm not sure what the implications of that are). For whatever reason, there is nothing in there about arbitrary or unjustifiable discrimination.
Overall, then, what we have in this agreement seems to be the usual approach for the traditional GATT categories of security measures; but then for a broader category of security measures, there is new language that subjects these measures to additional scrutiny when reviewed by a trade dispute panel. It's a two-tiered approach to scrutinizing security measures, with some security interests given more deference than others.
As a final point, I haven't checked everywhere, but based on a few quick web searches, it seems as though this particular formulation is new. Certain aspects can be found elsewhere, but not all of them. For example, here is the RCEP security exception, which has the "national emergency" and "critical public infrastructure" parts, but not the "disguised restriction on trade" part:
Article 17.13: Security Exceptions7 For greater certainty, this includes critical public infrastructures whether publicly or privately owned.ADDEDAfter I posted this, Devon Whittle mentioned to me that he had read Article 28.2.2 as being "a broad USMCA/CPTPP style exception, subject to the 'disguised restriction on trade' test, with the 'including' language just examples." That's true! Sorry for any confusion. I guess what I would say here is that Article 28.2.1 is more deferential to parties invoking security exceptions, so if they can fit their security interests in those categories, they will do so. If, on the other hand, the security interests fall outside the scope of the Article 28.2.1 categories, they will invoke the harder to satisfy Article 28.2.2, including for measures taken "in time of national emergency or relating to the protection of critical public infrastructure" as well as any other security rationale they come up with that is not covered by Article 28.2.1.
Nothing in this Agreement shall be construed:
...
(b) to prevent any Party from taking any action which it considers necessary for the protection of its essential security interests:
...
(iii) taken so as to protect critical public infrastructures7 including communications, power, and water infrastructures;
(iv) taken in time of national emergency or war or other emergency in international relations
...