The securitisation of international economic law and ‘global security’: an analysis of the EU law approach through the prism of the Common Commercial Policy

Abstract

The so-called ‘securitisation’ of international economic law is largely premised and enacted on grounds of defensive security exceptions, whereby governments invoke their national security interests to depart from their international economic obligations. This article aims to contribute to the ongoing debate on the compatibility of such security-driven unilateral measures with international law and within the current system of global governance, by exploring whether legal patterns tackling essential security interests under international economic law may reach beyond State-centred national security interests to also encompass concerns arising from global security threats (such as environmental security). In doing so, this article focuses on the relevant approaches taken by the European Union (EU), particularly in the operation of the EU Common Commercial Policy (CCP) under Article 207 of the Treaty on the Functioning of the European Union. The EU enjoys broad exclusive competence in framing and implementing its trade and investment policy under the CCP, both in terms of its internal regulation and external action. In this context, security considerations are bound to arise. This article explores a series of relevant legal instruments originating from or concluded by the EU, and analyses how these incorporate security considerations and the EU’s understanding of the concept of security thereunder. After considering security under EU primary law, the article reviews the position taken by the EU as a bilateral treaty player, by reference to the Trade and Comprehensive Agreement with the United Kingdom, and as a member of the World Trade Organization, notably on the interpretation of the General Agreement on Tariffs and Trade security exceptions clause. It also looks into EU internal action on foreign direct investment screening, export control and foreign subsidies regulations, as well as the EU’s proposed ‘anti-coercion mechanism’ and its ‘global human rights sanction regime’. The analysis of the EU’s multifaceted practice shows that while global security concerns may increasingly underlie obligations to cooperate and coordination clauses, existent security-related legal patterns in bilateral and multilateral treaty practice remain ‘national security’-centred; and despite the increasing ‘enlargement’ of the scope of national security to encompass additional non-military threats, the vast array of global security threats and vulnerabilities are hardly covered by this expansion.