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Published online by Cambridge University Press: 18 November 2021
This Article theorizes “security” as a site of continuing struggle in the international system between competing approaches to identifying and responding to urgent threats. Rather than endorsing a single approach, this Article argues that a claim to “security” can imply any one of four approaches to law and policy, each of which has radically divergent implications for who is empowered by a security claim and how that power interacts with existing legal rules. By moving among these four approaches, security claims can disrupt established systems of knowledge-production and redescribe the world in new ways.
Thanks to Scott Anderson, Julian Arato, Elena Chachko, Kathleen Claussen, Harlan Cohen, Stephanie Holmes-Didwania, Kristen Eichensehr, Chiara Giorgetti, Carla Greenberg, Maryam Jamshidi, Steven Koh, Peter Margulies, Mae Nguyen, Mona Pinchis-Paulsen, Jaya Ramji-Nogales, Aziz Rana, Rachel Rebouche, Ingrid Wuerth, and participants in workshops at Fordham University, Temple University, the University of Florida, the University of Richmond, and the American Association of Law Schools. Thanks also to the editors and anonymous reviewers for the insight, care, and attention they gave to this Article.
1 Jess Bidgood, Biden Links Climate Change to National Security as He Taps John Kerry for Climate Czar Role, Boston Globe (Nov. 24, 2020), at https://www.bostonglobe.com/2020/11/23/nation/john-kerry-join-biden-administration-national-security-council-official-dedicated-climate-change.
2 See, e.g., E.O. 14008, 86 Fed. Reg. 7619, 7619–23 (Jan. 27, 2021).
3 See Farber, Daniel A., Exceptional Circumstances: Immigration, Imports, the Coronavirus, and Climate Change as Emergencies, 71 Hastings L.J. 1143, 1169–72 (2020)Google Scholar; Nevitt, Mark P., On Environmental, Climate Change, and National Security Law, 44 Harv. Envt'l L. Rev. 321, 351–63 (2020)Google Scholar.
4 See, e.g., Martin, Craig, Atmospheric Intervention?: The Climate Change Crisis and the Jus ad Bellum Regime, 45 Colum. J. Envt'l L. 331 (2020)Google Scholar; Stephen M. Walt, Who Will Save the Amazon (and How)?, For. Pol'y (Aug. 5, 2019), at https://foreignpolicy.com/2019/08/05/who-will-invade-brazil-to-save-the-amazon.
5 See, e.g., Olúfé.mi O. Táíwò, Don't Treat Climate Change as a National Security Risk, New Republic (Feb. 1, 2021), at https://newrepublic.com/article/161183/dont-treat-climate-change-national-security-risk (suggesting, inter alia, the reform of voting rights at international financial institutions, public ownership of utilities, and reparations).
6 See, e.g., Nevitt, Mark, Is Climate Change a Threat to International Peace and Security?, 42 Mich. J. Int'l L. (2021)Google Scholar.
7 E.g., Gostin, Lawrence O., Friedman, Eric A. & Wetter, Sarah, How the Biden Administration Can Reinvigorate Global Health Security, Institutions, and Governance, 115 AJIL Unbound 74 (2021)CrossRefGoogle Scholar; Wenham, Clare, The Oversecuritization of Global Health, 95 Int'l Aff. 1093 (2021)Google Scholar.
8 E.g., Hansen, Lene & Nissenbaum, Helen, Digital Disaster, Cyber Security, and the Copenhagen School, 53 Int'l Stud. Q. 1155 (2009)Google Scholar.
9 See, e.g., Campbell, Liz, Organized Crime and National Security: A Dubious Connection, 17 New Crim. L. Rev. 220 (2014)Google Scholar.
10 See, e.g., Pierre-Hugues Verdier, Global Banks on Trial: U.S. Prosecutions and the Remaking of International Finance 110–46 (2020).
11 See, e.g., Sills, Deborah Samuel, The Foreign Emoluments Clause: Protecting Our National Security Interests, 26 J. L. & Pol'y 63 (2018)Google Scholar.
12 E.g., Rizer, Arthur & Glaser, Sheri R., Breach: The National Security Implications of Human Trafficking, 17 Widener L. Rev. 69 (2011)Google Scholar.
13 E.g., Samuel Estreicher & Jonathan F. Harris, Bringing Home the Supply Chain, Verdict (Apr. 15 2020).
14 See, e.g., Knight, Lizzie & Voon, Tania, The Evolution of National Security at the Interface Between Domestic and International Investment Law and Policy: The Role of China, 21 J. World Inv. & Trade 104, 111–24 (2020)Google Scholar.
15 See, e.g., Jaya Ramji-Nogales, Migration Emergencies, 68 Hastings L.J. 609, 619 (2017).
16 E.g., Congyan Cai, Enforcing a New National Security?: China's National Security Law and International Law, 10 J. E. Asia & Int'l L. 65, 80–81 (2017).
17 Nikita Lalwani, State of the Art: How Cultural Property Became a National-Security Priority, 130 Yale L.J. F. 78 (2020).
18 OECD, Security-Related Terms in International Investment Law and National Security Strategies, at 11 (May 2009).
19 See Henry Farrell & Abraham L. Newman, Weaponized Interdependence: How Global Economic Networks Shape State Coercion, 44 Int'l Security 42 (2019); Anthea Roberts, Henrique Choer Moraes & Victor Ferguson, Toward a Geoeconomic Order in International Trade and Investment, 22 J. Int'l Econ. L. 655 (2019).
20 Christine Chinkin & Mary Kaldor, International Law and New Wars 564 (2017).
21 Center for Popular Democracy, Law for Black Lives & Black Youth Project 100, Freedom to Thrive: Reimagining Safety and Security in Our Communities 4 (2017); see also Amna A. Akbar, Toward a Radical Imagination of Law, 93 N.Y.U. L. Rev. 405, 452–53 (2018); Monica Bell, Black Security and the Conundrum of Policing, Just Security (July 15, 2020), at https://tinyurl.com/4xsbe254. On the transnational dimensions of these movements, see, for example, Policing the Planet: Why the Policing Crisis Led to Black Lives Matter (Jordan T. Camp & Christina Heatherton eds., 2016); Global Lockdown: Race, Gender, and the Prison-Industrial Complex (Julia Sudbury ed., 2005); Steven Gilliam & Rachel Gilmer, What Does the Trans Pacific Partnership Mean for Black People?, Ebony (June 8, 2015), at https://www.ebony.com/news/what-does-the-trans-pacific-partnership-mean-for-black-people-503.
22 See Barry Buzan, People, States, and Fear 29–32 (rev. 2d ed. 2016) (citing W. B. Gallie, Essentially Contested Concepts, 56 Proc. Aristotelian Soc'y 167 (1956)); cf. Arnold Wolfers, “National Security” as an Ambiguous Political Symbol, 67 Pol. Sci. Q. 481, 481 (1952). But see David A. Baldwin, The Concept of Security, 23 Rev. Int'l Stud. 5, 12 (1997) (arguing that security is not “essentially contested” but rather “a confused or inadequately explicated concept”).
23 See Section IV.A infra.
24 See Sections IV.B–D infra.
25 E.g., Maria Julia Trombetta, Rethinking the Securitization of the Environment: Old Beliefs, New Insights, in Securitization Theory 137, 142 (Thierry Balzacq ed., 2011). An entirely different, and more radical, set of consequences is suggested by Táíwò, supra note 5.
26 An important precursor in this respect, in the field of U.S. national security, is Aziz Rana, Who Decides on Security?, 44 Conn. L. Rev. 1417 (2012); see also Cynthia Enloe, Globalization & Militarism 55 (2d ed. 2016). The connection between knowledge, politics, and power is a key ingredient of many critical theories to which this Article is in some degree of debt. See generally Roberto Mangabeira Unger, Knowledge and Politics (1975); Michel Foucault, Security, Territory, Population: Lectures at the Collège de France 1977–1978 (Michel Senellart ed., Graham Burchell trans., 2007); Catharine A. MacKinnon, Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence, 8 Signs 635 (1983).
27 Cf. Jocelyn Simonson, Police Reform Through a Power Lens, 130 Yale L.J. 778, 849–51 (2021).
28 See, e.g., J. Benton Heath, The New National Security Challenge to the Economic Order, 129 Yale L.J. 1020, 1024 (2020); Kathleen Claussen, Trade's Security Exceptionalism, 72 Stanford L. Rev. 1097, 1103–04 (2020); Hitoshi Nasu, The Expanded Conception of Security and International Law: Challenges to the UN Collective Security System, 3 Amsterdam L. F. 15 (2011); Laura K. Donohue, The Limits of National Security, 48 Am. Crim. L. Rev. 1573, 1577 (2011); Anne-Marie Slaughter, Security, Solidarity, and Sovereignty: The Grand Themes of UN Reform, 99 AJIL 619, 622–23 (2005).
29 See, e.g., Chinkin & Kaldor, supra note 20, at 25–34 (describing and defending a “second generation Human Security” model); Nigel D. White & Auden Davies-Bright, The Concept of Security in International Law, in Oxford Handbook of International Law and Global Security 19, 36 (Robin Geiss & Nils Melzer eds., 2021) [hereinafter Global Security Handbook] (emphasizing the importance of achieving consensus); Jutta Brunée & Stephen J. Toope, Environmental Security and Freshwater Resources: Ecosystems Regime Building, 91 AJIL 26, 27 (1997) (supporting an “expansive understanding of environmental security”). For legal scholarship that eschews any attempt to reach a consensus definition of security, and instead proposes potentially more promising managerial-style mechanisms to accommodate a plurality of perspectives, see Cai, supra note 16, at 77; Heath, supra note 28, at 1080–96; Harlan Grant Cohen, Nations and Markets, 23 J. Int'l Econ. L. 793, 810–12 (2020); Gregory Shaffer, Governing the Interface of U.S.-China Relations, 115 AJIL 622 (2021).
30 Cf. Maryam Jamshidi, The Climate Crisis Is a Human Security, Not a National Security, Issue, 93 U. S. Cal. L. Rev. Postscript 36, 44 (2019).
31 See Rita Floyd, Global Climate Security Governance: A Case of Institutional and Ideational Fragmentation, 15 Conf., Sec. & Dev. 119, 137–39 (2015).
32 In this respect, compare White House, National Security Strategy 12 (2015) (describing the climate-security nexus to include armed conflict, natural disasters, refugee flows, and economic effects), with U.S. Dep't of Defense, Report on the National Security Implications of Climate-Related Risks and a Changing Climate 4–5 (July 2015) (describing the security implications largely in terms of its capacity to drive conflicts abroad, increase demand for military-assisted humanitarian aid, and force militaries to protect installations against sea level rise).
33 Martti Koskenniemi, The Fate of International Law: Between Technique and Politics, 70 Mod. L. Rev. 1 (2007).
34 Martin, supra note 4.
35 See Section V.C infra.
36 See Sections III.A.3., IV.D., V.D infra.
37 See, e.g., David Kennedy, A World of Struggle 1–20 (2018).
38 See Part VI infra.
39 See generally Jeffrey L. Dunoff & Mark A. Pollack, International Law and International Relations: Introducing an Interdisciplinary Dialogue, in Interdisciplinary Perspectives on International Law and International Relations: The State of the Art 3 (Jeffrey L. Dunoff & Mark A. Pollack eds., 2013) [hereinafter Interdisciplinary Perspectives]; Emilie Hafner-Burton, David G. Victor & Yonatan Lupu, Political Science and International Law: The State of the Field, 106 AJIL 47 (2012); Anne-Marie Slaughter, Andrew S. Tulumello & Stepan Wood, International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship, 92 AJIL 367 (1998); Kenneth W. Abbott, Modern International Relations Theory: A Prospectus for International Lawyers, 14 Yale J. Int'l L. 335 (1989).
40 See, e.g., Jutta Brunée & Stephen J. Toope, Legitimacy and Legality in International Law: An Interactional Account 271–349 (2010); Martha Finnemore & Duncan B. Hollis, Constructing Norms for Global Cybersecurity, 110 AJIL 425 (2016); Ryan Goodman, Humanitarian Intervention and Pretexts for War, 100 AJIL 107 (2006).
41 For exceptions, see Chinkin & Charlesworth, supra note 20, at 508–17; Hitoshi Nasu, The Global Security Agenda: Securitization of Everything?, in Global Security Handbook, supra note 29, at 37; Wouter G. Werner, International Law: Between Legalism and Securitization, in Security: Dialogue Across Disciplines 196, 196 (Philippe Bourbeau ed., 2015); Barbara von Tigerstrom, International Law and the Concept of Human Security, in The Challenge of Conflict: International Law Responds (Ustina Dolgopol & Justin G. Gardam eds., 2006); Karen Knop, Re/Statements: Feminism and State Sovereignty in International Law, 3 Transnat'l L. & Contemp. Probs. 293 (1993).
42 Chris Hendershot & David Mutimer, Critical Security Studies, in The Oxford Handbook of International Security 60 (Alexandra Gheciu & William C. Wohlforth eds., 2018) [hereinafter Handbook of Int'l Security].
43 Werner, supra note 41, at 196.
44 See, e.g., Robert H. Bork, The Limits of “International Law,” Nat'l Interest, at 3, 7 (1989/1990) (arguing, with respect to the U.S.-Nicaragua ICJ judgment, “if the U.S. is a fugitive from justice for rejecting the judgment of a biased court over matters vital to its security, then a large majority of the world's nations are in flight”).
45 Bardo Fassbender, The United Nations Charter as Constitution of the International Community, 36 Colum. J. Transnat'l L. 529, 574 (1998).
46 Gerd Obereleitner, Human Security: A Challenge to International Law?, 11 Glob. Governance 185, 198 (2005).
47 See, e.g., Jeremy Waldron, Safety and Security, 85 Neb. L. Rev. 454, 456 (2011).
48 Anthony Anghie, Imperialism, Sovereignty and the Making of International Law 13–31 (2004).
49 See, e.g., John Reynolds, Empire, Emergency, and International Law 68–108 (2017); Kerem Nisancioglu, Racial Sovereignty, 26 Eur. J. Int'l Rel. 39, 48–55 (2020); Yael Berda, Managing Dangerous Populations: How Colonial Emergency Laws Shaped Citizenship, 51 Security Dialogue 557 (2020).
50 See Frantz Fanon, The Wretched of the Earth 52–62, n. 9 (1961) (Richard Philcox trans., 2005).
51 For variations on counter-pressure, see Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, 2019 ICJ Rep. 95 (Feb. 25); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 ICJ Rep. 136, 193 (July 9). For an argument that these formal vindications of Third World sovereignty nonetheless mask the ways in which international legal doctrines facilitate “the stubborn persistence of colonial-era bonds tying together First and Third World peoples in an informal but very real empire,” see E. Tendayi Achiume, Migration as Decolonization, 71 Stan. L. Rev. 1509, 1539–47 (2020).
52 See Hans Kelsen, Collective Security 39 (1957).
53 UN Charter, Arts. 39–42.
54 See id. Arts. 24–25, 42, 48, 103. For the same reasons, the extension of Security Council power through legislation can be criticized as a new form of colonial-style imperialism, where the concept of security, now internationalized, justifies the extension of western sovereign power against alleged terrorists, armed groups, or so-called rogue states. Anghie, supra note 48, at 273–09.
55 See, e.g., Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peace-Keeping and Security, Dec. 10, 1999, reprinted in 5 J. Conflict & Sec. L. 231 (2000).
56 Draft Code of Offences Against the Peace and Security of Mankind, Art. 1, 1954 (II) Y.B. Int'l L. Comm'n 134.
57 See Section V.B infra.
58 E.g., Liora Lazarus, Mapping the Right to Security, in Security and Human Rights 325, 326 (Benjamin J. Goold & Liora Lazarus eds., 2007) (noting a lack of research on the scope of this right).
59 Tom Ginsburg, Authoritarian International Law?, 114 AJIL 221, 259 (2020); Bork, supra note 44.
60 The notions of “security” and “emergency” are conceptually distinct in important ways. “Emergency” tends to denote a time-bound and intense situation, whereas “security” refers only to issue type, and may or may not include all emergency situations. Natural disasters, for example, are emergency situations that may or may not be understood to give rise to security concerns. Likewise, issues of state or personal security arise in all times, and not simply in moments of emergency. This conceptual distinction is reflected in some legal instruments, such as human rights treaties, which include time-bound derogations clauses for situations of public emergency, as well as subject-matter-specific limitations or exceptions clauses for security and other policy concerns. See notes 61–62 infra. It may also be desirable to insist on strict separation by, for example, seeking institutional mechanisms to ensure that declared emergencies remain time-limited. See, e.g., Bruce Ackerman, Before the Next attack 80–83 (2006). Nevertheless, these unassailable analytical distinctions tend to break down and blur in political practice. Declared emergencies can stretch and persist over time, such that the emergency becomes another word for a semi-permanent security situation. See, e.g., Oren Gross & Finnoula Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice 174–80 (2006). Likewise, governments tend to claim the special privileges and deference associated with emergency powers even in normal times for “security” issues, and the expansion of this concept allows this extraordinary power to cover an increasingly large slice of ordinary life. See, e.g., id. at 214–20. This intertwined relationship between security and emergency can be found in practice under instruments such as the UN Charter, where provisions that were initially used only with respect to specific conflicts and crises have been adapted to issue semi-permanent global legislation. See, e.g., Paul C. Szasz, The Security Council Starts Legislating, 96 AJIL 901 (2002). The relationship between security and emergency is arguably tightest when “security” is understood in primarily military terms. See Section IV.A infra. As we will see later, there are competing discourses of security that might drive some separation between this concept and notions of crisis and emergency powers, and this separation may be desirable. See Sections IV.B, D infra. Nevertheless, at the outset it is useful to treat these two concepts together, since they give rise to the same concern that an ever-wider array of issues will be securitized and thus subject to extraordinary state power.
61 E.g., International Covenant on Civil and Political Rights, Art. 4, Dec. 16, 1966, 993 UNTS 3 [hereinafter ICCPR]; American Convention on Human Rights, Art. 27, Nov. 22, 1969, 1144 UNTS 123; Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 15, Nov. 4, 1950 [hereinafter ECHR].
62 E.g., ICCPR, supra note 61, Arts. 8(3)(c)(iii), 12(3), 13, 14(1), 19(3)(b), 21, 22(2). Security considerations may also enter into the analysis of non-derogable rights. See, e.g., id. Art. 6(1) (no one shall “arbitrarily” be deprived of life).
63 African (Banjul) Charter on Human and Peoples’ Rights, Art. 29(3), June 27, 1981, OAU Doc. CAB/LEG/67/3/Rev.5, 21 ILM 58 (imposing a duty “[n]ot to compromise the security of the State”).
64 E.g., General Agreement on Tariffs and Trade, Art. XXI, Oct. 30, 1947, 55 UNTS 188 [hereinafter GATT 1947]; General Agreement on Trade in Services, Art. XIVbis, Apr. 15, 1994, 1869 UNTS 183; Agreement on Trade-Related Aspects of Intellectual Property Rights, Art. 73, April 15, 1994, 1869 UNTS 299 [hereinafter TRIPS]. For a survey of investment treaty models, see generally UN Conf. on Trade & Dev. [UNCTAD], The Protection of National Security in International Investment Agreements (2009).
65 Agreement Concerning Digital Trade, U.S.-Japan, Art. 4, Oct. 7, 2019, at https://tinyurl.com/yyaakzsf.
66 E.g., Treaty on European Union (Consolidated Version), Art. 4(2), Oct. 26, 2012, OJEU C 326/13; Treaty on the Functioning of the European Union, Art. 346(1)(b), Oct. 26, 2012, OJEU C 326/47.
67 Treaty on Mutual Legal Assistance in Criminal Matters, UK-U.S., Art. 3(1)(a), Jan. 6, 1994; Mutual Assistance in Criminal Matters (Djib. v. Fr.), Judgment, 2008 ICJ 177, 226 (June 4).
68 International Health Regulations (2005), Art. 1(1), May 23, 2005, 2509 UNTS 79 (defining “health measure,” a term on which the application of key provisions depends, to “not include law enforcement or security measures”).
69 UN Law of the Sea Convention, Arts. 25(3), 52, 302, Dec. 10, 1982, 450 UNTS 11.
70 Treaty on the Non-proliferation of Nuclear Weapons, Art. X(1), July 1, 1968, 729 UNTS 161.
71 Laurence R. Helfer, Flexibility in International Agreements, in Interdisciplinary Perspectives, supra note 39, at 175, 191.
72 Yuval Shany, Toward a General Margin of Appreciation Doctrine in International Law?, 16 Eur. J. Int'l L. 907, 925–27, n. 122 (2006).
73 Responsibility of States for Internationally Wrongful Acts, Arts. 21, 23–25, 27, GA Res. 56/83, UN Doc. A/RES/56/83 (Jan. 28, 2002); cf. Draft Articles on the Responsibility of International Organizations, Art. 25, in Report of the Int'l L. Comm'n, 63d Sess., UN Doc. A/66/10 (2011).
74 See Section III.A.2 infra.
75 See, e.g., Simon Chesterman, “I'll Take Manhattan”: The International Rule of Law and the United Nations Security Council, 1 Hague J. Rule L. 67 (2009).
76 See, e.g., Stephan Schill & Robyn Briese, “If the State Considers”: Self-Judging Clauses in International Dispute Settlement, 13 Max Planck Y.B. UN L. 61 (2009); Helfer, supra note 71.
77 E.g., Erika de Wet, The Chapter VII Powers of the United Nations Security Council 352–54 (2004).
78 See, e.g., UNCTAD, supra note 64, at 72–110 (surveying techniques in economic treaties).
79 See, e.g., Edward C. Luck, A Council for All Seasons: The Creation of the Security Council and Its Relevance Today, in The United Nations Security Council and War: The Evolution of Thought and Practice Since 1945, at 61 (Vaughan Lowe, Adam Roberts, Jennifer Welsh & Dominik Zaum eds., 2010).
80 See, e.g., Mona Pinchis-Paulsen, Trade Multilateralism and U.S. National Security: The Making of the GATT Security Exceptions, 41 Mich. J. Int'l L. 109 (2020).
81 Cf. Liora Lazarus, The Right to Security: Securing Rights or Securitizing Rights?, in Examining Critical Perspectives on Human Rights 87, 87–88 (Rob Dickinson, Elena Katselli, Colin Murray & Ole W. Pedersen eds., 2013) (noting that controversy over “what security is” spills over into efforts to define a “right to security”).
82 See, e.g., Andrea Bianchi, The Game of Interpretation in International Law: The Players, the Cards and Why the Game Is Worth the Candle, in Interpretation in International Law 34, 44 (Andrea Bianchi, Daniel Peat & Matthew Windsor eds., 2015); Julian Arato, Treaty Interpretation and Constitutional Transformation: Informal Change in International Organization, 38 Yale J. Int'l L. 289, 291 (2013).
83 If an authoritative interpreter does settle on a meaning of security—such as through a binding judicial opinion—then the problem of security's ambiguity reappears as a political one, in the sense that the losing side may be moved to challenge the interpreter's authority. Perhaps in recognition of this fact, international courts often take pains to avoid reaching definitive conclusions on the concept's scope, preserving the role of security as a site of contestation. See, e.g., Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 ICJ Rep. 14, 117 (June 27) (noting only that the concept of “essential security interests certainly extends beyond the concept of an armed attack, and has been subject to very broad interpretations in the past”).
84 In treaty regimes, see Vienna Convention on the Law of Treaties, Arts. 26, 31, May 23, 1969, 1155 UNTS 331.
85 See, e.g., Presidential Proclamation No. 9844, 84 Fed. Reg. 4949 (Feb. 15, 2019); Border Security and Immigration Enforcement Improvements, EO 13767 of Jan. 25, 2017, 82 Fed. Reg. 8793 (Jan. 30, 2017). This proclamation blurs the concepts of security and emergency in ways described in note 60 supra.
86 See Joint Declaration of Former Government Officials (2019), available at https://cdn.cnn.com/cnn/2019/images/02/25/2019-2-21.final.national.emergency.decl.pdf.
87 See, e.g., Jill Colvin & Colleen Long, Trump Struggles with a Growing Problem on the Border, Assoc. Press (Apr. 6, 2019), at https://apnews.com/article/aabc13ab07604b39b09710f08bc42a4f.
88 See, e.g., Simon Romero, Manny Fernandez, Jose A. Del Real & Azam Ahmed, No Crisis Here, Say Neighbors Close to Mexico, N.Y. Times (Jan. 8, 2019), at https://www.nytimes.com/2019/01/08/us/border-wall-crisis-mexico-usa.html; cf. Jennifer Medina, Latinos Seek Voice in Black-and-White Dialogue, N.Y. Times (July 3, 2020), at https://www.nytimes.com/2020/07/03/us/politics/latinos-police-racism-black-lives-matter.html.
89 Colby Itkowitz, Can the Border Really Be Called an “Emergency”? Not According to the Dictionary, Wash. Post (Feb. 15, 2019), at https://www.washingtonpost.com/politics/2019/02/15/can-border-really-be-called-an-emergency-not-according-dictionary.
90 Joint Declaration, supra note 86, para. 1.
91 See generally Damon Barrett & Manfred Nowak, The United Nations and Drug Policy: Towards a Human Rights-Based Approach, in The Diversity of International Law: Essays in Honour of Professor Kalliopi K. Koufa 449 (Aristotle Constantinides & Nikos Zaikos eds., 2009).
92 ICCPR, supra note 61, Art. 13. The ECHR system deals with these expulsion cases frequently as an infringement of the right to respect for private and family life under Article 8, which has a similar limitation for measures “necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” William A. Schabas, The European Convention on Human Rights: A Commentary 394–98 (2015) (noting that ECHR caselaw is “replete with examples” of expulsion cases under Article 8). The ECHR was more closely harmonized with the ICCPR through Protocol No. 7, Art. 1, Nov. 11, 1984. Id. at 1126.
93 Paul M. Taylor, A Commentary on the International Covenant on Civil & Political Rights 366 (2020).
94 See, e.g., Emily Crick, Drugs as an Existential Threat: An Analysis of the International Securitization of Drugs, 23 Int'l J. Drug Pol'y 407, 409–12 (2012).
95 See, for example, scholarship linking the Security Council's power with efforts to combat drug trafficking. Stefan Talmon, The Security Council as World Legislature, 99 AJIL 175, 181, 183 (2005); Kristen E. Boon, Coining a New Jurisdiction, 41 Vand. J. Transnat'l L. 991, 1012–13 (2008) (similar).
96 See, e.g., Pierre Giry v. Dominican Republic, Comm. No. 193/1985, § 5.5 (CCPR July 20, 1990).
97 C.G. & Others v. Bulgaria, App. No.1365/07, para. 43 (Eur. Ct. H.R. 2008).
98 Id., para. 6.
99 Id., para. 14 (quoting judgment of the Plovdiv Regional Court dated Mar. 8, 2006).
100 Id., paras. 18, 37–50.
101 Id., para. 43.
102 Id., para. 49.
103 Id., para. 39.
104 See id.
105 Id., paras. 43, 47.
106 Id., para. 45.
107 Id., para. 43.
108 Id., para. 45.
109 Cf. Phil Williams, Transnational Criminal Organisations and International Security, 36 Survival 96, 108–09 (1994) (identifying cases where drug trafficking presented serious threats to state security in a traditional sense).
110 See, e.g., Barrett & Nowak, supra note 91.
111 The approach of C.G. v. Bulgaria was followed in a number of other subsequent cases, with varying credulity about the nature of the security threat. See, e.g., Kaushal & Others v. Bulgaria, App. No. 1537/08, Judgment, para. 28 (Sept. 2, 2010) (accepting that the applicant's alleged participation in “extremist groups” presented a national security threat, and not deciding whether “human trafficking” was also such a threat).
112 See DeutscheTelekom AG v. India, PCA Case No. 2014-10, Interim Award, paras. 183–291 (Perm. Ct. Arb. Dec. 13, 2017); CC/Devas v. India, PCA Case No. 2013-09, Award on Jurisdiction and Merits, paras. 211–374 (Perm. Ct. Arb. July 25, 2016). Disclosure: The author was affiliated with Curtis, Mallet-Prevost, which represents India in these cases, during a period that overlapped with their pendency. The author did not advise on those cases, and the opinions expressed here are the author's own.
113 See, e.g., DeutscheTelekom, Interim Award, supra note 112, paras. 72–74.
114 See, e.g., CC/Devas, Award on Jurisdiction and Merits, supra note 112, para. 360.
115 DeutscheTelekom, Interim Award, supra note 112, para. 361.
116 See Agreement for the Promotion and Protection of Investments, Mauritius-India, Art. 11(3), Sept. 4, 1998; Treaty for the Promotion and Protection of Investments, Ger.-India, Art. 12, July 10, 1995, 2071 UNTS 121.
117 See, e.g., OECD, supra note 18, at 14; Knight & Voon, supra note 14, at 117–19.
118 DeutscheTelekom, Interim Award, supra note 112, para. 281; see also CC/Devas, Award on Jurisdiction and Merits, supra note 112, paras. 354–56. The DeutscheTelekom tribunal went on to find that, under the circumstances, the exception could not apply even to the military uses of the spectrum, while a majority of the CC/Devas tribunal determined that the exception applied to those uses.
119 DeutscheTelekom, Interim Award, supra note 112, paras. 235–36, 281 (quoting C.G. & Others v. Bulgaria).
120 Id., para. 236. As has been noted elsewhere, this rationale is entirely sensible and consistent with the principles of treaty interpretation, but it tells us only that a line must be drawn, not where to draw it. Heath, supra note 28, at 1045.
121 See id., paras. 236, 281.
122 See id., para. 281; CC/Devas, Award on Jurisdiction and Merits, supra note 112, para. 354. Even the dissenting arbitrator in the CC/Devas case suggested that, had the spectrum been expressly reserved for use by the military or defense ministry, that would likely have triggered the security exception. See CC/Devas v. India, PCA Case No. 2013-09, Award on Jurisdiction and Merits, Dissenting Opinion of David R. Haigh Q.C., para. 82 (Perm. Ct. Arb. July 25, 2016).
123 Ridhi Kabra, Return of the Inconsistent Application of the “Essential Security Interest” Clause in Investment Treaty Arbitration, 34 ICSID Rev. 723, 742 (2019).
124 In this respect, the recent India Model bilateral investment treaty includes a security exception for critical infrastructure. Model Text for the Indian Bilateral Investment Treaty (2015), Art. 33.
125 See, e.g., Knight & Voon, supra note 14, at 130–36. In the United States, security-sensitive projects and sectors have in recent years included wind power, semiconductors, and a dating app. See James K. Jackson, The Committee on Foreign Investment in the United States (CFIUS), Cong. Res. Serv., No. RL33388 (Feb. 14, 2020, Feb 26, 2020). For an argument that India should adopt a similar law, see Pratik Datta, India Needs National Security Screening of FDI, Indian Express (Mar. 13, 2021), at https://tinyurl.com/87n8vxa8.
126 See Section V.A., infra, for a similar approach.
127 See note 122 supra.
128 This may already be happening, in which case this jurisprudential development may be seen as ratifying existing trends rather than sparking new ones. See, e.g., Linda Weiss, Re-emergence of Great Power Conflict and US Economic Statecraft, 20 World Trade Rev. 152, 155–59 (2021) (observing that China's rise has led to a resurgence of involvement by the U.S. national security establishment in economic statecraft).
129 DeutscheTelekom, Interim Award, supra note 112, para. 236 (internal quotation marks omitted).
130 Jutta Weldes, Constructing National Interests: The United States and the Cuban Missile Crisis 1–2 (1999); Alexander Wendt, Constructing International Politics, 20 Int'l Security 71, 73–74 (1995).
131 Emmanuel Adler, The Emergence of Cooperation: National Epistemic Communities and the International Evolution of the Idea of Nuclear Arms Control, 46 Int'l Org. 101 (1992).
132 See, e.g., Thomas C. Schelling, The Strategy of Conflict 207–20 (1960).
133 Adler, supra note 131, at 132, 135.
134 See generally Keith Krause & Andrew Latham, Constructing Non-proliferation and Arms Control: The Norms of Western Practice, 19 Contemp. Security Pol'y 23 (1998).
135 E.g., SC Res. 1540 (Apr. 28, 2004). For a connection between this resolution and the shifting episteme of U.S. security policy, see William Walker, Nuclear Enlightenment and Counter-Enlightenment, 83 Int'l Aff. 431, 445–46 (2007).
136 See Krause & Latham, supra note 134, at 35–45.
137 See generally Anthony Burke, Nuclear Reason: At the Limits of Strategy, 23 Int'l Rel. 506 (2009).
138 Hugh Gusterson, People of the Bomb: Portraits of America's Nuclear Complex 26 (2004).
139 WHA Res. 46.60, para. 1 (May 14, 1993).
140 WHO Const., Art. 1.
141 Id. Art. 11. This expectation is honored at least formally, though larger states bring to bear expertise from across departments. See, e.g., List of Delegates and Other Participants, at 67, Seventy-Second World Health Assembly, WHO Doc. A72/Div.1/Rev.1 (May 31, 2019) (including “advisers” from USAID, Health and Human Services, the U.S. Trade Representative, the Patent and Trademark Office, the Food and Drug Administration, among others).
142 WHA Res. 46.60, supra note 139, pmbl. (citing prior statements on the health effects of nuclear weapons).
144 See, e.g., Nicholas Rostow, The World Health Organization, the International Court of Justice, and Nuclear Weapons, 20 Yale J. Int'l L. 151, 154–63 (1995).
145 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, 1996 ICJ Rep. 66, 84 (July 8).
146 Id. at 78 (quoting WHO Management Group, Effects of Nuclear War on Health and Health Services 3 (1987)).
147 Id. at 80.
148 Id. at 133–37 (Weeramantry, J., dissenting).
149 See id. at 133 (“The linkage in its own Constitution . . . between health on the one hand, and peace and security on the other, renders the argument unavailable that the two concerns are incompatible with each other. Indeed the greater the threat to global health, the greater would be the overlap with peace and security.”).
150 Id. at 137.
151 Today, the WHA Nuclear Weapons opinion is discussed as a strong statement of the “principle of speciality” among international organizations. See Jan Klabbers, Global Governance Before the ICJ: Re-reading the WHA Opinion, 13 Max Planck UN Y.B. 1 (2009).
152 E.g., Legality of the Threat or Use of Nuclear Weapons, supra note 145, at 226, 248–53.
153 E.g., José E. Alvarez, The Impact of International Organizations on International Law 214 (2016).
154 See generally Jofre Rocabert, Frank Schimmelfennig, Loriana Crasnic & Thomas Winzen, The Rise of International Parliamentary Institutions: Purpose and Legitimation, 14 Rev. Int'l Orgs. 607 (2018).
155 See Richard B. Stewart, Remedying Disregard in Global Regulatory Governance: Accountability, Participation, and Responsiveness, 108 AJIL 211 (2014); David Gartner, Beyond the Monopoly of States, 32 U. Pa. J. Int'l L. 595 (2010).
156 Chinkin & Kaldor, supra note 20, at 386–94.
157 See generally Séverine Autesserre, The Trouble With the Congo (2010).
158 Id. at 97–98.
159 See Hanna Leonardsson & Gustav Rudd, The “Local Turn” in Peacebuilding: A Literature Review of Effective and Emancipatory Local Peacebuilding, 36 Third World Q. 825 (2015).
160 Report of the Secretary-General, Peacebuilding in the Aftermath of Conflict, para. 35, UN Doc. A/67/499*, S/2012/746 (Oct. 8, 2012); Challenge of Sustaining Peace: Report of the Advisory Group of Experts on the Review of the Peacebuilding Architecture, para. 44, UN Doc. A/69/968–S/2015/490 (June 30, 2015).
161 Chinkin & Kaldor, supra note 20, at 389–91.
162 See J. Benton Heath, Managing the “Republic of NGOs”: Accountability and Legitimation Problems Facing the UN Cluster System, 47 Vand. J. Transnat'l L. 239, 289–93 (2014).
163 I am grateful to Amy J. Cohen for pointing me in this direction.
164 See, e.g., Stephen John Stedman, Food and Security, in The Evolving Sphere of Food Security (Rosamond L. Naylor ed., 2014). In this field, even the label “food security” is contested. Many civil society leaders reject the label because of its perceived capture by the neoliberal policies of the Washington Consensus, preferring instead the label of “food sovereignty.” See, e.g., Jefferson Boyer, Food Security, Food Sovereignty, and Local Challenges for Transnational Agrarian Movements, 37 J. Peasant Stud. 319, 324–31 (2010). But it is also possible to characterize food sovereignty as an alternative approach to, rather than a substitute for, food security—one which emphasizes local control over food and agricultural systems. Cf. La Via Campesina, The Solution to Food Insecurity Is Food Sovereignty (Apr. 28, 2020), at https://tinyurl.com/2p4zhtca.
165 Michael Fakhri, Third World Sovereignty, Indigenous Sovereignty, and Food Sovereignty: Living with Sovereignty Despite the Map, 9 Transnat'l Legal Theory 218, 245 (2018).
166 Reform of the Committee on World Food Security, para. 16, FAO Doc. CFS:2009/2 Rev. 2 (Oct. 2009).
167 Fakhri, supra note 165, at 245.
168 Jessica Duncan, Global Food Security Governance: Civil Society Engagement in the Reformed Committee on World Food Security 209 (2015).
169 See id. at 119 (arguing that the Committee is a “benchmark,” not a model, for participatory governance, owing to the historically contingent circumstances of its evolution and the challenges it continues to face).
170 Rana, supra note 26, at 1431.
171 See, e.g., Duncan, supra note 168, at 223–24 (describing the concept of food security itself as an “anti-political device” that “turns a symptom of poverty into the ends of policy” and enables governments to seem earnestly concerned about hunger with “little threat to the status quo”).
172 See generally Karen A. Alter, The New Terrain of International Law 68–111 (2014); Benedict Kingsbury, International Courts: Uneven Jurisdiction in Global Order, in The Cambridge Companion to International Law 203, 211–12 (James Crawford & Martti Koskenniemi eds., 2012).
173 Mattias Kumm, “We Hold These Truths to Be Self-Evident”: Constitutionalism, Public Reason, and Legitimate Authority, in Public Reason and Courts 143, 159 (Silje A. Langvatn, Mattias Kumm & Wojciech Sadurski eds., 2020) (arguing that proportionality fills this role in public law adjudication).
174 Trump v. Hawaii, 138 S. Ct. 2392, 2421 (2018) (quoting Chicago & So. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948)).
175 See, e.g., Heath, supra note 28, at 1063–80 (surveying approaches).
176 See generally Elizabeth Magill & Adrian Vermeule, Allocating Power Within Agencies, 120 Yale L.J. 1032 (2011).
177 See, e.g., Benedict Kingsbury, Nico Krisch & Richard B. Stewart, The Emergence of Global Administrative Law, 68 L. & Contemp. Probs. 15 (2005).
178 See, e.g., Lukasz Gruszczynski & Wouter Werner, Introduction, in Deference in International Courts and Tribunals: Standard of Review and Margin of Appreciation 1, 13–15 (Lukasz Gruszczynski & Wouter G. Werner eds., 2014).
179 E.g., Philip Morris Brands SARL v. Oriental Republic of Uruguay, ICSID Case No. ARB/10/7, Award, para. 391 (July 8, 2016).
180 A particularly forceful statement is Schill & Briese, supra note 76, at 134.
181 Magill & Vermeule, supra note 176, at 1051–56.
182 See, e.g., Deborah N. Pearlstein, Form and Function in the National Security Constitution, 41 Conn. L. Rev. 1549, 1551–52 (2008) (quoting The Federalist No. 70 (Hamilton) (alterations omitted)) (stating and then criticizing this conventional view).
183 See Elena Chachko, Administrative National Security, 108 Geo. L.J. 1063, 1136–37 (2020) (describing and calling into question this account).
184 See, for example, note 86 supra.
185 Trump v. Hawaii, supra note 174, at 2419–20 (citing Mathews v. Diaz, 426 U.S. 67, 81 (1976)).
186 See, e.g., Mutual Assistance in Criminal Matters, supra note 67, at 229–30 (dealing with a treaty clause allowing a state to take a decision when “it considers” the matter necessary to its security interests); CC/Devas v. India, Award on Jurisdiction and Merits, supra note 112, paras. 233–45 (applying a treaty that excepts measures “directed to” state security); Military and Paramilitary Activities in and Against Nicar. (Nicar. v. U.S.), 1986 ICJ Rep. 14, 117, 141 (June 27) (dealing with a treaty allowing measures “necessary” to protect essential security interests); cf. Responsibility of States for Internationally Wrongful Acts, Art. 25, GA Res. 56/83, UN Doc. A/RES/56/83 (Jan. 28, 2002) (providing, under the customary international law doctrine of necessity, that the measure in question must be the “only way” to protect an essential interest).
187 Jed Odermatt, Patterns of Avoidance: Political Questions Before International Courts, 14 Int'l J. L. in Context 221 (2018); cf. Adrian Vermeule, Our Schmittian Administrative Law, 122 Harv. L. Rev. 1095 (2009).
188 See Korea – Measures Affecting Imports of Fresh, Chilled, and Frozen Beef, Report of the Appellate Body, para. 161, WTO Doc. WT/DS161/AB/R (Dec. 11, 2000) (adopted Jan. 10, 2001); Enron Creditors Recovery Corp. v. Argentine Republic, ICSID Case No. ARB/01/03, Decision on the Application for Annulment, paras. 367–73 (July 30, 2010).
189 El Paso Energy Int'l Co. v. Argentine Republic, ICSID Case No. ARB/03/15, Award, paras. 613–26 (Oct. 31, 2011).
190 Mutual Assistance in Criminal Matters, supra note 67, at 278 (dec., Keith, J.).
191 Kadi v. Council & Commission, ECJ Case No. T-315/01, Judgment of the Court of First Instance, paras. 226–32 (Sept. 21, 2005), set aside on appeal by Kadi & al Barakaat Int'l Found. v. Council & Commission, ECJ Case Nos. C-402/05 P & C-415/05 P, Judgment of the Court (Grand Chamber) (Sept. 3, 2008).
192 Devika Hovell, Due Process in the United Nations, 110 AJIL 1, 8–29 (2016).
193 Jerry L. Mashaw, Reasoned Administration and Democratic Legitimacy: How Administrative Law Supports Democratic Government 11 (2018).
194 Magill & Vermeule, supra note 176, at 1053 (citing Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 Colum. L. Rev. 1613, 1617 (1995)).
195 Chad P. Bown & Joel P. Trachtman, Brazil–Measures Affecting Imports of Retreaded Tyres: A Balancing Act, 8 World Trade Rev. 85, 87 (2009).
196 Magill & Vermeule, supra note 176, at 1053.
197 Cf. Oren Gross & Fionnuala Ní Aoláin, From Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rights, 23 Hum. Rts. Q. 625 (2001).
198 This is the same question posed in United States v. Carolene Prods., 304 U.S. 144, 152, n. 4 (1938). For an argument that the WTO Appellate Body has shifted in this direction for precisely this reason, see Robert Howse, The World Trade Organization 20 Years On: Global Governance by Judiciary, 27 Eur. J. Int'l L. 7, 48–51 (2016).
199 Jonathan Bonnitcha & Zoe P. Williams, State Liability for “Politically” Motivated Conduct in the Investment Treaty Regime, 33 Leiden J. Int'l L. 77 (2020).
200 See Sections V.C, D infra.
201 See text accompanying notes 1–6 supra.
202 On the use of human security for intervention, see Barbara von Tigerstrom, Human Security and International Law 96–112 (2007); Chinkin & Kaldor, supra note 20, at 29–30. On climate change, international security, and the prospect for militarism, see Martin, supra note 4, at 378–83.
203 1 Max Weber, Economy & Society: An Outline of Interpretive Sociology 19–22 (Guenther Roth & Claus Wittich eds., 1968). As a set of ideal types, the framework presented here attempts to navigate a middle ground between rich historical and factual analysis of security practices and a strictly analytical set of categories. See Roberto Mangabeira Unger, Law in Modern Society: Toward a Criticism of Social Theory 22–23 (1976). This typology draws on the deep and violent history of security in international politics, but it would be further enriched by continued engagement with sociological, anthropological, and historical analysis.
204 Id. at 216.
205 For useful overviews that do aim to be relatively comprehensive, see Barry Buzan & Lene Hansen, The Evolution of Security Studies (2009).
206 This typology thus raises the tricky question of what constitutes an “extraordinary” measure. As this term is essentially relative, it can quickly devolve into difficult questions about what constitutes the norm in a particular society or regime, against which the exception takes place. See Barry Buzan, Ole Wæver & Jaap de Wilde, Security: A New Framework for Analysis 208–10 (1998). With respect to international law, the continuum developed in Section III.B., supra, is thus a helpful baseline. In international legal practice as currently structured, a measure qualifies as extraordinary to the extent that, by reason of a claim to protect security, the measure is expected or permitted to deviate from the requirements of public reason that are increasingly pervasive in international legal regimes. The lefthand paradigms either seek that permission for a narrow set of measures relating to force and survival (see Section IV.A infra), or for a broader set, such as actions to prevent climate change or slow the spread of disease (see Section IV.C infra). The righthand paradigms seek to re-embed security in existing practices of public reason (see Section IV.B infra), or, more radically, to embed them in an alternative set of routine practices that displace the existing liberal-legalist logic of the international system (see Section IV.D infra).
207 See, e.g., Daniel Deudney, The Case Against Linking Environmental Degradation and National Security, 19 Millennium 461 (1990).
208 This is also a familiar feature of ideal types. See Weber, supra note 203, at 226, 270 (showing how rigorous bureaucratization characteristic of the formal-rational type of authority leads to a process of “social levelling” that “foreshadows mass democracy,” which in turn disturbs the formal rationality of economic life).
209 See Part V infra.
210 Kenneth N. Waltz, Theory of International Politics 91–92, 126 (1979).
211 Stephen M. Walt, The Renaissance of Security Studies, 35 Int'l Stud. Q. 211, 212 (1991) (describing the study of security as “the study of the threat, use, and control of military force”). Walt's comment was intended to assure the coherence of an academic field—security studies—and not to define security policy. See id. at 212–13. Nevertheless, the idea that security policy is best left to focus on military matters has developed along similar lines. See, e.g., Ashton B. Carter, The Architecture of Governance in the Face of Terrorism, 26 Int'l Security 5, 5–6 (2001/2002).
212 The inclusion of internal security here derives in large part from Mohammed Ayoob's work on the security of post-colonial states. See, e.g., Mohammed Ayoob, The Security Problematic of the Third World, 43 World Pol. 257 (1991). Ayoob's emphasis on internal and transnational security threats now appears prescient, even as post-colonial security studies has in many cases moved beyond Ayoob's own avowedly “realist” perspective. See, e.g., Columba Peoples & Nick Vaughan-Williams, Critical Security Studies: An Introduction (2020).
213 See, for example, the many references to security in Interdisciplinary Perspectives, supra note 39. This type is not meant to be aligned solely with “realist” approaches as they are understood today in international law scholarship—as assuming rational actors conditioned by system structure, with limited potential relevance for international law and regimes. As a particular way of thinking about security, this type is also consistent with the mainstream constructivist insight that, in fact, many practices of security and military institutions are not readily explained by rationality and system structure, and instead reflect embeddedness within epistemic communities, transnational networks, normative systems, and culture. See generally The Culture of National Security: Norms and Identity in World Politics (Peter J. Katzenstein ed., 1996). Constructivist insights on security do transcend this type when they identify interactions that can fundamentally transform the way security is conceived and acted upon in international politics. See, e.g., Emmanuel Adler & Michael Barnett, Security Communities in Theoretical Perspective, in Security Communities 3 (Emmanuel Adler & Michael Barnett eds., 1998).
214 Walt, supra note 211, at 213.
215 Dexter Fergie, Geopolitics Turned Inwards: The Princeton Military Studies Group and the National Security Imagination, 43 Diplomatic Hist. 644, 658 (2019).
216 Buzan & Hansen, supra note 205, at 66, 88–89; Adler, supra note 131.
217 Rita Floyd, Environment and Security: Securitisation Theory and US Environmental Security Policy 73–79 (2010) (describing the influence of the “environmental scarcity thesis,” developed by Thomas Homer-Dixon, among others, in U.S. defense policy circles).
218 See Philip Zelikow, The Transformation of National Security, Nat'l Interest (Mar. 1, 2003), at https://nationalinterest.org/article/the-transformation-of-national-security-491.
219 Eric A. Posner & Adrian Vermeule, Crisis Governance in the Administrative State: 9/11 and the Financial Meltdown of 2008, 76 U. Chi. L. Rev. 1613, 1614 (2009).
220 Vermeule, supra note 187. In Vermeule's view, the bite of the exception might be felt most strongly during periods of perceived emergency or crisis, but he argues the same problem of legal “black holes” and “grey holes” is likely to persist in some pockets of public law even in “ordinary” times. See id. at 1139–40.
221 A critique of this view, which also acknowledges its entrenchment in the United States, is Michael J. Glennon, National Security and Double Government, 5 Harv. J. Nat'l Sec. 1 (2014).
222 See generally Douglas T. Stuart, Creating the National Security State: A History of the Law That Transformed America (2008); Rana, supra note 26; Robert Knowles, National Security Rulemaking, 41 Fla. St. Univ. L. Rev. 883 (2014).
223 On the latter, see, for example, Shirin Sinnar, Separate and Unequal: The Law of “Domestic” and “International” Terrorism, 117 Mich. L. Rev. 1333 (2019).
224 William E. Scheuerman, Emergency Powers, 2 Ann. Rev. L. & Soc. Sci. 257, 259–62 (2006) (describing this view as “constitutional relativism”).
225 Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Iran v. U.S.), Judgment, para. 98 (Int'l Ct. Just. Feb. 3, 2021). By way of disclosure, the author served as counsel for the United States in a parallel case, Certain Iranian Assets, under the same treaty, but took no part in this case.
226 Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Iran v. U.S.), Preliminary Objections Submitted by the United States of America, para. 6.44 (Int'l Ct. Just. Aug. 23, 2019).
227 Id., para. 6.47.
228 See id., para. 6.37.
229 The 2021 judgment found that a decision “may require an assessment of the reasonableness and necessity of the measures.” Violations of the 1955 Treaty of Amity, Judgment, supra note 225, para. 112. Depending on how the case develops, it may suggest a wider scope for judicial review that is less in line with the realist ideal type depicted here.
230 See, e.g., Deudney, supra note 207.
231 See generally Rosa Brooks, How Everything Became War and the Military Became Everything (2016).
232 Ingrid Wuerth, International Law in the Post-Human Rights Era, 96 Tex. L. Rev. 279 (2018).
233 See, e.g., Richard H. Steinberg, Wanted—Dead or Alive: Realism in International Law, in Interdisciplinary Perspectives, supra note 39, at 146, 167 (arguing that “realism has saved (and could have saved) countless lives by challenging the foolishness of various proposed policies”).
234 J. Ann Tickner, Gender in International Relations: Feminist Perspectives on Achieving Global Security 50 (1993).
235 See, e.g., Robert Jervis, Security Regimes, 36 Int'l Org. 357 (1982).
236 Cf. Kenneth N. Waltz, The Politics of Peace, 11 Int'l Stud. Q. 199, 206 (1967) (“If developments in Vietnam might indeed tilt the world balance in America's disfavor, then we ought to be fighting.”).
237 This position can be overstated if not careful. The influence of ideology, culture, and norms is acknowledged also in realist approaches. See, e.g., Robert Gilpin, Global Political Economy: Understanding the International Economic Order 21 (2001).
238 See, e.g., Herbert Feis, The Geneva Proposals for an International Trade Charter, 2 Int'l Org. 39, 45 (1948).
239 E.g., Edward Newman, Human Security and Constructivism, 2 Int'l Stud. Perspec. 239, 247 (2001).
240 Cf. Robert O. Keohane, The Globalization of Informal Violence, Theories of World Politics, and the “Liberalism of Fear,” Dialog-IO, at 29 (2002).
241 See Fergie, supra note 215; Joseph S. Nye, Jr. & Sean M. Lynn-Jones, International Security Studies: A Report of a Conference on the State of the Field, 12 Int'l Security 5 (1988).
242 Buzan & Hansen, supra note 205, at 67.
243 Rana, supra note 26, at 1431.
244 Broadening, in this sense, refers to expanding security beyond its military associations to embrace new threats and issues, while deepening refers to decentering the role of the state in favor of individuals or non-state groups. Peoples & Williams, supra note 212, at 4. For influential early examples, see Richard H. Ullman, Redefining Security, 8 Int'l Security 129 (1983); Buzan, supra note 22, at 49–63; Jessica Tuchman Mathews, Redefining Security, 68 For. Aff. 162 (1989); Ken Booth, Security and Emancipation, 17 Rev. Int'l Stud. 313 (1991).
245 Laura Sjoberg, Feminist Security and Security Studies, in Oxford Handbook of International Security, supra note 42; see also Tickner, supra note 234, at 127–44; Enloe, supra 26, at 1–13, 56–58l; Knop, supra note 41.
246 See, e.g., UN Development Programme [UNDP], Human Development Report 1994, at 22–40 (1994).
247 See note 7 supra.
248 SC Res. 1325 (Oct. 31, 2000).
249 On environment in particular, see Floyd, supra note 217.
250 For example, Chinkin and Kaldor must distinguish their view as “Second Generation” human security, as against competing models. Kaldor & Chinkin, supra note 20, at 32–34.
251 See, e.g., Jeffrey Goldberg, The Obama Doctrine, Atlantic (Apr. 2016), at https://www.theatlantic.com/magazine/archive/2016/04/the-obama-doctrine/471525 (quoting U.S. President Barack Obama) (“ISIS is not an existential threat to the United States. Climate change is a potential existential threat to the entire world if we don't do something about it.”).
252 Morgan Bazilian & Cullen Hendrix, An Age of Actorless Threats: Rethinking National Security in Light of COVID and Climate, Just Security (Oct. 23, 2020), at https://www.justsecurity.org/72939/an-age-of-actorless-threats-re-thinking-national-security-in-light-of-covid-and-climate (“[S]ecuritizing these issues is not the same as militarizing them. The important point is to bring more non-militarized agencies—like the EPA, NOAA, and the Department of the Interior—into the discussion.”).
253 See id.
254 See note 244 supra; cf. Olúfé.mi O. Táíwò, States Are Not Basic Structures: Against State-Centric Political Theory, 48 Phil. Papers 59 (2019). For approaches focused on deepening, see Section IV.D infra.
255 The incorporation of this perspective in official documents was only partial, however. Christine Gray, President Obama's 2010 National Security Strategy and International Law on the Use of Force, 10 Chinese J. Int'l L. 35 (2011) (noting “tonal” shifts alongside deeper continuities between Bush and Obama).
256 Oona A. Hathaway, After COVID-19, We Need to Redefine “National Security,” Slate (Apr. 7, 2020), at https://slate.com/news-and-politics/2020/04/coronavirus-national-security-terrorism.html (emphasis added).
257 For an argument that the fates of these two institutions were always linked, see Rana, supra note 26.
258 See, e.g., Oona A. Hathaway, National Security Lawyering in the Post-War Era: Can Law Constrain Power?, 68 U.C.L.A. L. Rev. 2 (2021); Chachko, supra note 183.
259 Trombetta, supra note 25, at 143.
260 See Diane Marie Amann, Le changement climatique et la sécurité humaine, Regards croisés sur l'internationalisation du droit 239 (Mireille Delmas-Marty & Stephen Breyer eds., 2009).
261 This is the case in some discourses on climate security. See, e.g., Rita Floyd, Global Climate Security Governance: A Case of Institutional and Ideational Fragmentation, 15 Conf., Sec. & Dev. 119 (2015).
262 Diane Otto, Women, Peace, and Security: A Critical Analysis of the Security Council's Vision, in Oxford Handbook of Gender and Conflict (Finnoula Ní Aoláin, Naomi Cahn, Dina Francesca Haynes & Nahia Valji eds., 2017). Thanks to a reviewer for highlighting this piece.
263 For example, whereas it was once possible to argue that even so-called emergency responses to climate change “are still designed and developed in the realm of ordinary policy debate,” Buzan, Wæver & de Wilde, supra note 206, at 83, this is arguably no longer the case. See, e.g., Farber, supra note 3; Nevitt, supra note 6.
264 Buzan, Wæver & de Wilde, supra note 206, at 83.
265 See, e.g., Farber, supra note 3; Nevitt, supra note 6. The recent deployment of emergency powers and derogations to address the COVID-19 pandemic provides another example. Julian Arato, Kathleen Claussen & J. Benton Heath, The Perils of Pandemic Exceptionalism, 114 AJIL 627 (2020); Laurence R. Helfer, Rethinking Derogations from Human Rights Treaties, 115 AJIL 20 (2021).
266 See Section IV.D infra.
267 The ideal type developed here is an attempt to reflect a political position, and it uses securitization theory only to illuminate that position. As such, I use the off-brand label discursive security to reflect the fact that the theory is being used here as a political artifact rather than a framework for social-scientific analysis. On securitization theory and the Copenhagen School of Security Studies, its projects and approach to security, see Buzan & Hansen, supra note 205.
268 See Ole Wæver, Politics, Security, Theory, 42 Security Dialogue 465, 468 (2015) (explaining that Securitization Theory is structured to “insist on responsibility and ultimately to protect politics,” and that a “user can never reduce away politics by deriving it from objective threats or causal explanations at the particular point of securitization”).
269 Buzan, Wæver & de Wilde, supra note 206, at 29–31, 204–05.
270 Id. at 23–26.
272 Id. at 29; see also Lene Hansen, Reconstructing Desecuritisation: The Normative-Political in the Copenhagen School and Directions for How to Apply It, 38 Rev. Int'l Stud. 525, 531–33 (2012).
273 Cf. Fleur Johns, Non-legality in International Law 88 (2013) (remarking critically that “[i]t is, after all, the exceptional and the extra-legal that ring liberal alarm bells”).
274 Buzan, Wæver & de Wilde, supra note 206, at 23–26.
275 Id. at 40; see also Trine Villumsen Berling, Science and Securitization: Objectivation, the Authority of the Speaker and Mobilization of Scientific Facts, 42 Security Dialogue 385 (2011).
276 A classic text on this point, though outside the bounds of Securitization Theory, is David Campbell, Writing Security: United States Foreign Policy and the Politics of Identity (2d ed. 1998). See also Harlan G. Cohen, The National Security Delegation Conundrum, Just Security (July 17, 2019), at https://www.justsecurity.org/64946/the-national-security-delegation-conundrum. This view has radical and egalitarian implications, as it suggests that no person has a special claim to identify security threats or issues, any more than any person has a privileged claim to act politically. See Michael C. Williams, Words, Images, Enemies: Securitization and International Politics, 47 Int'l Stud. Q. 511, 520–21 (2003).
277 See Buzan, Wæver & de Wilde, supra note 206, at 24–26; see also note 60 supra. This assertion can be read, weakly, as merely an analytical move designed to ensure the workability of a social-scientific theory, in which case there is no conflict with alternative approaches to security like “human security” or “ecological security.” But our politics allows for a stronger association, in which the demand for exceptional measures is closely and practically bound up with claims to security, such that the two are mutually reinforcing and tend to emerge together. Cf. Ole Wæver, Securitization and Desecuritization, in On Security 46, 47 (Ronnie D. Lipschutz ed., 1995) (“[S]ecurity, as with any other concept, carries with it a history and a set of connotations that it cannot escape.”). In other words, to speak “security” in today's politics is almost inherently to lay the groundwork for future calls for emergency powers and exceptionalism, even if the original speaker does not intend it that way, because those are the associations that our politics creates. Such associations might be said to be borne out in recent arguments over climate change. See supra note 263 and sources cited therein. On this strong view, to speak “security” in most political settings today is a risky move precisely because of this association. Cf. Barry Buzan, A Reductionist, Idealistic Notion That Adds Little Analytical Value, 35 Security Dialogue 369, 370 (2004) (warning that human security is a dangerous label precisely because of the link between security and exceptionalism).
278 See Rita Floyd, Can Securitization Theory Be Used in Normative Analysis? Towards a Just Securitization Theory, 42 Security Dialogue 427 (2011).
279 Wæver, supra note 268, at 469.
280 For one effort to combine securitization theory with a liberal-constitutionalist ethos and engage with public international law scholarship, see Tine Hanrieder & Christian Kreuder-Sonnen, WHO Decides on the Exception?: Securitization and Emergency Governance in Global Health, 45 Security Dialogue 331 (2014). On the skepticism of securitization theory toward classical liberal approaches to security, see Buzan, Wæver & de Wilde, supra note 206, at 208–10.
281 Helfer, supra note 265, at 22; see also note 61 supra.
282 Id. at 23–24, 28. But see Gross & Ní Aoláin, supra note 60, at 249–52 (noting points of definitional agreement).
283 See, e.g., ECHR, supra note 61, Art. 15.
284 Helfer, supra note 265, at 33.
285 On the overlap and distinction between “security” and “emergency,” see note 60 supra.
286 E.g., Gross & Ní Aoláin, supra note 60, at 255–63 (describing the derogations regime as an “accommodations” model that seeks to discipline the recourse to emergency power and facilitate a return to normalcy). But cf. Karima Bennoune, “Lest We Should Sleep”: COVID-19 and Human Rights, 114 AJIL 666, 671–73 (2020) (critiquing the bias of human rights actors in the early stage of the pandemic in favor of limiting state power, rather than urging a strong state response).
287 See Gross & Ní Aoláin, supra note 60, at 283 (critiquing the ECHR's seeming “structural inability to deal credibly with permanent emergencies”).
288 See, e.g., Didier Bigo, Security and Immigration: Toward a Critique of the Governmentality of Unease, 27 Alternatives 63 (2002).
289 See, e.g., Hansen, supra note 272; João Nunes, Reclaiming the Political: Emancipation and Critique in Security Studies, 43 Security Dialogue 345, 348–50 (2012); Christopher S. Browning & Matt McDonald, The Future of Critical Security Studies, 19 Eur. J. Int'l Rel. 235, 248 (2011); Claudia Ardau, Security and the Democratic Scene: Desecuritization and emancipation, 7 J. Int'l Rel. & Dev. 388 (2004).
290 E.g., Reynolds, supra note 49, at 267.
291 Alison Howell & Melanie Richter-Montpetit, Is Securitization Theory Racist?: Civilizationalism, Methodological Whiteness, and Antiblack Thought in the Copenhagen School, 51 Security Dialogue 3 (2020).
292 See Ole Wæver & Barry Buzan, Racism and Responsibility – the Critical Limits of Deepfake Methodology in Security Studies: A Reply to Howell and Richter-Montpetit, 51 Security Dialogue 386 (2020). It must be said that this reply is unfortunate insofar as it suggests that a “charge of racism” must be subjected to a higher burden than “normal academic disputes about facts, methods or theories,” and is troubling inasmuch as it very nearly threatens a libel suit against the publishing journal. Id. at 386–87. The current public discussion on antiracism and systemic racism should suggest that, to the contrary, racist thought is ubiquitous, is not the sole province of enthusiastic racists, and should be confronted frankly wherever discovered. A more graceful reply, which disputes Howell and Richter-Montpetit's findings but takes their intervention as a call for further reflection, is Lene Hansen, Are “Core” Feminist Critiques of Securitization Theory Racist? A Reply to Alison Howell and Melanie Righter-Montpetit, 51 Security Dialogue 378 (2020).
293 Howell & Richter-Montpetit, supra note 291, at 9, 12.
294 Id. at 9.
295 Nunes, supra note 289, at 350.
296 See, e.g., Olúfé.mi O Táíwò, Who Gets to Feel Secure?, Aeon (Oct. 30, 2020), at https://aeon.co/essays/on-liberty-security-and-our-system-of-racial-capitalism.
297 This is a key insight of feminist security studies. See, e.g., Tickner, supra note 234.
298 By invoking “pluralism” in this way, I mean to refer to refer to the existence of contested and overlapping forms of normative claims, with that contest giving rise to imperial exercises of authority, resistance, and violence. Cf. Robert M. Cover, The Supreme Court 1982 Term—Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4, 12–14 (1983). This is distinguished from the more sanguine discussions of “legal pluralism” that are common in mainstream international law literature, emphasizing the management of conflicting legal rules through various juridical techniques. See, e.g., Paul Schiff Berman, Global Legal Pluralism as a Normative Project, 8 U.C. Irvine L. Rev. 149, 165–178 (2018).
299 Charis Enns, Nathan Andrews & J. Andrew Grant, Security for Whom?: Analysing Hybrid Security Governance in Africa's Extractive Sectors, 96 Int'l Aff. 995 (2020).
300 Id. at 1001.
301 Whereas the oil sector considered security largely in terms of the physical security of extractive operations, the local communities articulated a broader desire to ensure a robust safety and security of community even “before we take the oil out of the soil,” in recognition of the destabilizing effects of such operations. Id. at 1001–02.
303 The companies paid up to ten times what reservists were paid by the state. Id.
304 Id. at 1003.
307 See id. at 1002.
308 E.g., Movement for Black Lives, End the War on Black Communities, in Policy Platform: End the War on Black People (2020).
309 See, e.g., Monica C. Bell, Anti-Segregation Policing, 95 N.Y.U. L. Rev. 650, 696–701 (2020) (showing how police officers can be “tasked with spatial exclusion in predominantly White and more affluent areas,” and arguing that “watching and warding off people who seem out of place in White areas are core aspects of police work”).
310 See, e.g., Amna A. Akbar, Sameer Ashar & Jocelyn Simonson, Movement Law, 73 Stan. L. Rev. 821 (2021) (section on “shifting the episteme”).
311 E.g., Paul Butler, The System Is Working the Way It Is Supposed to: The Limits of Criminal Justice Reform, 104 Geo. L.J. 1419 (2016).
312 See Reynolds, supra note 49, at 285–86.
313 See Nils Burbandt, Vernacular Security: The Politics of Feeling Safe in Global, National and Local Worlds, 36 Security Dialogue 275 (2005).
314 Bell, supra note 21.
315 See Inés Valdez, Mat Coleman & Amna Akbar, Law, Police Violence, and Race: Grounding and Embodying the State of Exception, 23 Theory & Event 902, 926–28 (2020). The threat of violence is also recognized as a mechanism that can, under certain circumstances, secure critical concessions. Butler, supra note 311, at 1470.
316 E.g., Tarak Barkawi & Mark Laffey, The Postcolonial Moment in Security Studies, 32 Rev. Int'l Stud. 329, 349–52 (2006); Roxanne Lynn Doty, States of Exception on the U.S.-Mexico Border: Security “Decisions,” and Civilian Border Patrols, 1 Int'l Pol. Sociology 113 (2007).
317 See, e.g., Georges Abi-Saab, The Newly Independent States and the Rules of International Law, 8 Howard L.J. 95, 112 (1962); Jessica Whyte, The “Dangerous Concept of the Just War”: Decolonization, Wars of National Liberation, and the Additional Protocols to the Geneva Conventions, 9 Humanity 313 (2018); cf. Abraham D. Soafer, Agora: The U.S. Decision Not to Ratify Protocol I to the Geneva Conventions on the Protection of War Victims (Cont'd), 82 AJIL 784, 786 (1988) (arguing that this position would unduly “treat[ ] terrorists as soldiers,” affording them POW status and immunity from prosecution, and “enhanc[ing] their stature”).
318 Ibrahim F. I. Shihata, Destination Embargo of Arab Oil: Its Legality Under International Law, 68 AJIL 591, 626 (1974) (arguing that the OPEC oil embargo targeting allies of Israel was justified under the GATT security exception).
319 Cf. Weber, supra note 203, at 212–16.
320 Barry Buzan, Rethinking Security After the Cold War, 32 Cooperation & Conflict 5, 22 (1997).
321 Joanne S. Gowa, Allies, Adversaries & International Trade (1995).
322 See, e.g., Roberts, Moraes & Ferguson, supra note 19, at 659–60.
323 GATT 1947, supra note 64, Art. XXI(b).
324 For a defense of this view of the GATT exception, see Roger P. Alford, The Self-Judging WTO Security Exception, 2011 Utah L. Rev. 697,(2011).
325 Heath, supra note 28, at 1051–63.
326 Peter van den Bossche & Sarah Akpofure, The Use and Abuse of the National Security Exception under Article XXI(b)(iii) of the GATT 1994 (World Trade Inst. Working Paper No. 03/2020, Sept. 2020).
327 See, e.g., Yong-Shik Lee, Three Wrongs Do Not Make a Right: The Conundrum of the U.S. Steel and Aluminum Tariffs, 18 World Trade Rev. 481 (2019).
328 Russia — Measures Concerning Traffic in Transit, Panel Report, WTO Doc. WT/DS512/R (adopted Apr. 26, 2019) [hereinafter Russia–Transit, Panel Report].
329 Saudi Arabia — Measures concerning the Protection of Intellectual Property Rights, Panel Report, WTO Doc. WT/DS567/R (June 16, 2020) (unadopted) [hereinafter Saudi Arabia–IP, Panel Report].
330 Russia–Transit, Panel Report, supra note 328, paras. 7.131, 7.146.
331 Id., para. 7.134. In addition, the existence of a “war or other emergency” is a fact to be determined objectively, and the measures at issue must plausibly contribute to the protection of the articulated security interests. Id., paras. 7.71, 7.138. While this aspect of the ruling is celebrated as a break from the longstanding view that the GATT security exception, and provisions like it, are “self-judging,” the account above emphasizes the ways in which the panel sought continuity with past practice by enforcing a relatively traditional notion of security.
332 Id., para. 7.135.
333 See Section V.C infra.
334 Russia–Transit, Panel Report, supra note 328, para. 7.130.
335 This was despite the fact that Russia was widely regarded as being responsible for the conflict, and that Russia had avoided “expressly articulat[ing]” its security interests in the case. Id., para. 7.137.
336 Saudi Arabia–IP, Panel Report, supra note 329, paras. 7.280, 7.284.
337 Id., paras. 2.40–45,
338 This is not to naturalize the inclusion of terrorism on the security agenda. See Anghie, supra note 48, at 306–07.
339 This was a violation of TRIPS Article 61. See Saudi Arabia–IP, Panel Report, supra note 329, paras. 7.214–7.221.
340 See id., paras. 7.289–7.294.
341 Id., para. 7.291.
342 Id., para. 7.289.
343 See White House, National Security Strategy of the United States of America 17 (Dec. 2017) (quoting President Trump). The specter of the United States and Trump's steel tariffs looms large in the text of the Russia – Transit decision—a fact that was not missed by contemporary observers. See, e.g., Todd Tucker, The WTO Just Blew Up Trump's Argument for Steel Tariffs, Wash. Post (Apr. 5, 2019), at https://www.washingtonpost.com/politics/2019/04/05/wto-just-blew-up-trumps-argument-steel-tariffs.
344 Identifying this approach with realist security would be a useful insight even if the panels’ approach had simply been a mechanical application of the treaty. Here, however, the panels’ interpretations of Article XXI took place on deeply contested terrain where multiple approaches were possible. See text accompanying notes 324–325 supra (discussing prior approaches to Article XXI). The panels thus exercised some agency in giving shape to the conception of security that treaty drafters had encoded into the GATT, and in doing so they made choices that were deeply political, even if not unmoored from the ordinary rules of treaty interpretation.
345 Saudi Arabia–IP, Panel Report, supra note 329, para. 7.280.
346 Arato, Claussen & Heath, supra note 261, at 633.
347 See, e.g., United States—Certain Measures on Steel and Aluminum Products, Opening Oral Statement by the European Union, WTO Case No. DS548, paras. 123–29 (Nov. 4, 2019).
348 Cf. Helen Nissenbaum, When Computer Security Meets National Security, 7 Eth. & Info. Tech. 61, 68 (2005) (noting other ways in which corporate owners of IP have tried to “hitch their star to the security wagon,” such as by linking peer-to-peer file sharing to international terrorism).
349 See generally David P. Fidler, SARS, Governance, and the Globalization of Disease (2004).
350 Lawrence O. Gostin, Global Health Law 177 (2014).
351 But see Ann Marie Kimball, Risky Trade: Infectious Disease in the Era of Global Trade (2006); David P. Fidler, From International Sanitary Conventions to Global Health Security: The New International Health Regulations, 4 Chinese J. Int'l L. 325, 382–83 (2005).
352 IHR 2005, supra note 68, Art. 2. For operational requirements along these lines, see id. Arts. 25–26, 28, 31–32, 43.
353 See Christian Kreuder-Sonnen, International Authority and the Emergency Problematique: IO Empowerment through Crises, 11 Int'l Theory 182 (2019). But cf. Armin von Bogdandy & Pedro Villareal, International Law on Pandemic Response: A First Stocktaking in Light of the Coronavirus Crisis, at 15 (Max Planck Inst. for Comp. Pub. L. & Int'l L., Res. Paper Ser. No. 2020-07, 2020) (doubting whether “emergency powers” is the right frame).
354 IHR 2005, supra note 68, Art. 12(4).
355 See id. Art. 43(1); Gian Luca Burci, The Outbreak of COVID-19 Coronavirus: Are the International Health Regulations Fit for Purpose?, EJIL:Talk! (Feb. 27, 2020), at https://www.ejiltalk.org/the-outbreak-of-covid-19-coronavirus-are-the-international-health-regulations-fit-for-purpose; David P. Fidler, To Declare or Not to Declare: The Controversy Over Declaring a Public Health Emergency of International Concern for the Ebola Outbreak in the Democratic Republic of the Congo, 14 Asian J. WTO & Int'l Health L. & Pol'y 287, 294 (2019).
356 See IHR 2005, supra note 68, Arts. 12, 15–17, 43.
357 See, e.g., Eyal Benvenisti, The WHO—Destined to Fail: Political Cooperation and the COVID-19 Pandemic, 114 AJIL 588 (2020); Gian Luca Burci & Mark Eccleston-Turner, Preparing for the Next Pandemic: The International Health Regulations and World Health Organization During COVID-19, 2 Y.B. Int'l Disaster L. (2021).
358 See Eric Lipton, David E. Sanger, Maggie Haberman, Michael D. Shear, Mark Mazzetti & Julian E. Barnes, Despite Timely Alerts, Trump Was Slow to Act, N.Y. Times, Apr. 12, 2020, at A1 (discussing Dr. Anthony Fauci's decision to start supporting travel restrictions immediately following the WHO's January declaration of emergency).
359 See, e.g., Burci, supra note 355.
360 WHO, Statement on the Meeting of the IHR (2005) Emergency Committee for Ebola Virus Disease in the Democratic Republic of the Congo, Geneva (Apr. 12, 2019); see also Helen Branswell, Could an Emergency Declaration Over Ebola Make a Bad Situation Worse?, Statnews (May 14, 2019), at https://www.statnews.com/2019/05/14/could-an-emergency-declaration-over-ebola-make-a-bad-situation-worse.
361 J. Benton Heath, Pandemics and Other Health Emergencies, in Oxford Handbook of the International Law of Global Security (Robin Geiss & Nils Melzer eds., 2021).
362 Burci, supra note 355.
363 Hanrieder & Kreuder-Sonnen, supra note 280.
364 Cf. Eric A. Posner, The Limits of the World Health Organization, Lawfare (Apr. 21, 2020), at https://www.lawfareblog.com/limits-world-health-organization.
365 E.g., Sara E. Davies, Securitizing Infectious Disease, 84 Int'l Aff. 295 (2008).
366 E.g., Colleen O'Manique, Responses to Recent Infectious Disease Emergencies, in Global Health and Security: Critical Feminist Perspectives 112, 126 (Colleen O'Manique & Pieter Fourie eds. 2018); see also Matiangai Sirleaf, Ebola Does Not Fall from the Sky: Global Structural Violence and International Responsibility, 51 Vand. J. Transnat'l L. 477, 545–52 (2018).
367 See, e.g., Shalanda H. Baker, Climate Change and International Economic Law, 43 Ecology L. Q. 53 (2016).
368 E.g., Michael A. Mehling, Harro van Asselt, Kasturi Das, Susanne Droege & Cleo Verkuijl, Designing Border Carbon Adjustments for Enhanced Climate Action, 113 AJIL 433, 481 (2019) (noting “legal uncertainties” with respect to the legality of BCAs under current WTO law). But see, e.g., Jennifer Hillman, Changing Climate for Carbon Taxes: Who's Afraid of the WTO?, German Marshall Fund U.S. (July 2013) (arguing that a properly designed carbon adjustment would be WTO-compliant).
369 See, e.g., J. Benton Heath, Trade and Security Among the Ruins, 30 Duke J. Comp. & Int'l L. 223, 242, n. 103 (2020) (comparing views on this point).
370 Timothy Meyer & Todd Tucker, Trump's Trade Strategy Points the Way to a U.S. Carbon Tariff, Lawfare (Aug. 24, 2020), at https://www.lawfareblog.com/trumps-trade-strategy-points-way-us-carbon-tariff.
373 Timothy Meyer & Todd Tucker, A Pragmatic Approach to Carbon Border Measures, 21 World Trade Rev. 109 (2021).
375 See Section IV.C supra.
376 The U.S. statute, in particular, sets out a particularly expansive definition of “security” that does not necessarily privilege military or defense expertise. See 19 U.S.C. § 1862(d). The Trump administration's controversial tariffs on steel and aluminum in the name of national security provide a precedent for this use of presidential authority. Meyer & Tucker, supra note 370. GATT Article XXI appears narrower in scope, but Meyer and Tucker persuasively argue that it is broad enough to cover climate change measures—a defensible but controversial position. See Meyer & Tucker, supra note 373; Heath, supra note 369, at 241–43.
377 See note 272 supra and accompanying text.
378 Timothy Meyer, Saving the Political Consensus in Favor of Free Trade, 70 Vand. L. Rev. 985 (2017).
379 Those investigations would focus on the impact of imports on military readiness, critical infrastructure, and “the need for a reliable supply of the article to protect national security.” S. 176, 117th Cong. (introduced Mar. 15, 2021).
380 A similar initiative could be pursued internationally to maintain or even strengthen the tie between military security and GATT Article XXI, which appears in some parts of the Russia – Transit decision, discussed in Section V.A, supra.
381 See Simon Lester, Unilateralism vs. Multilateralism on Carbon Taxes / Carbon Tariffs, Int'l Econ. L. & Pol'y Blog (Aug. 30, 2020), at https://ielp.worldtradelaw.net/2020/08/unilateralism-vs-multilateralism-on-carbon-taxes-and-carbon-tariffs.html (responding to the Meyer/Tucker proposal on Section 232); Heath, supra note 369, at 255–58 (discussing efforts to narrow the distance between GATT Articles XX and XXI).
382 Cf. Táíwò, supra note 5 (arguing instead for a “collaborative climate politics” that focuses on the redistribution of power and resources across borders).
383 See, e.g., William W. Burke-White & Andreas von Staden, Investment Protection in Extraordinary Times, 48 Va. J. Int'l L. 307, 378–81 (2008).
384 See, e.g., Kenneth J. Vandevelde, Investment Liberalization and Economic Development: The Role of Bilateral Investment Treaties, 36 Colum. J. Transnat'l L. 501, 506–10 (1998).
385 See, e.g., 2012 U.S. Model Bilateral Investment Treaty, Art. 5(2); Restatement (3d) Foreign Relations Law § 711, cmt. e (1987).
386 For an example, see Wena Hotels Ltd. v. Arab Republic of Egypt, ICSID Case No. ARB/98/4, Award, paras. 84–95, (Dec. 8, 2000). On the relationship between bilateral investment treaties and state crackdowns on protest, see Christina Bodea & Fangjin Ye, 50 Brit. J. Pol. Sci. 955, 962 (2018).
387 See, e.g., DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 194–97 (1989). But see Laurens Lavrysen, Protection by the Law: The Positive Obligation to Develop a Legal Framework to Adequately Protect ECHR Rights, in Human Rights and Civil Liberties in the 21st Century 69, 76–79, n. 41 (Yves Haeck & Eva Brems eds., 2014).
388 For a characteristically subtle treatment of the interaction between contemporary abolitionist approaches and the human right to security, which resists collapsing into a demand for at least de minimis police protection, see Monica C. Bell, Safety, Friendship, and Dreams, 54 Harv. Civil Rts. & Civil Liberties L. Rev. 703, 715–22 (2019).
389 See James Thuo Gathii, War, Commerce and International Law 168–85 (2009).
390 Asian Ag. Prods. Ltd. v. Republic of Sri Lanka, ICSID Case No. ARB/87/3, Final Award (June 27, 1990).
391 Id., para. 8. The tribunal could not determine whether the security forces or the Tamil separatists caused the property damage and loss of life. Id., para. 85(d).
392 Id., para. 85.
393 James Thuo Gathii, War's Legacy in International Investment Law, 11 Int'l Cmty. L. Rev. 353, 373 (2009).
394 Asia Watch, Cycles of Violence: Human Rights in Sri Lanka Since the Indo-Sri Lanka Agreement 26 (1987).
395 This is an ironic consequence of the judicialization of such disputes, particularly given that one historical basis for the full protection and security standard lies in the U.S. practice of making indemnity payments after failing to protect Chinese, Irish, Italian, and Mexican nationals, among others, from mob violence and lynching. See Elihu Root, The Basis of Protection to Citizens Residing Abroad, 4 ASIL Proc. 16, 21–25 (1910).
396 See, e.g., Bear Creek Mining Co. v. Peru, ICSID Case No. ARB/14/21, Award, paras. 251–66 (Nov. 30, 2017).
397 Nicolás M. Perrone, The “Invisible” Local Communities: Foreign Investor Obligations, Inclusiveness, and the International Investment Regime, 113 AJIL Unbound 16 (2019).
398 See, e.g., Chiara Giorgetti, Laura Létourneau-Tremblay, Daniel Behn & Malcolm Langford, Reforming International Investment Arbitration: an Introduction, 18 L. & Prac. Int'l Cts. & Tribunals 303 (2019).
399 James Thuo Gathii, Reform and Retrenchment in International Investment Law, Santander Roundtable Discussions on International Economic Law, Univ. Cologne, Jan. 13, 2021.
400 See Nicolás M. Perrone, Making Local Communities Visible: A Way to Prevent the Potentially Tragic Consequences of Foreign Investment?, in World Trade and Investment Law Reimagined 171 (Alvaro Santos, Chantal Thomas & David Trubek eds., 2019); Lorenzo Cotula, Investment Disputes from Below: Whose Rights Matter? Mining, Environment and Livelihoods in Colombia, Int'l Inst. Env. & Dev. (July 23, 2020), at https://www.iied.org/investment-disputes-below-whose-rights-matter.
401 See, e.g., Bear Creek, Award, supra note 396.
402 Bruno Simma & Dirk Pulkowski, Of Planets and the Universe: Self-Contained Regimes in International Law, 17 Eur. J. Int'l L. 483, 529 (2006).
403 See text accompanying notes 47–54, 154–155, 383–401 supra.
404 See, e.g., John J. Mearshimer, Bound to Fail: The Rise and Fall of the Liberal International Order, 43 Int'l Security 7, 44–49 (2019); Harlan Grant Cohen, Multilateralism's Life Cycle, 112 AJIL 47, 65–66 (2018). For an argument that the present crisis should bring about a “narrower” international legal order that is focused on preventing interstate war, see Ingrid Wuerth, International Law and the Russian Invasion of Ukraine, Lawfare (Feb. 25, 2022), at https://www.lawfareblog.com/international-law-and-russian-invasion-ukraine.
405 This is a historically contingent, rather than necessary, association, and there are counter-examples.
406 Cf. Nils Gilman, The Coming Avocado Politics: What Happens When the Ethno-Nationalist Right Gets Serious About the Climate Emergency, Breakthrough Inst. (Feb. 7, 2020), at https://thebreakthrough.org/journal/no-12-winter-2020/avocado-politics.
407 See Nomi Claire Lazar, States of Emergency in Liberal Democracies 155–59 (2009).
408 See, e.g., Rana, supra note 26, at 1486–90.
409 Sarah Bertrand, Can the Subaltern Securitize?: Postcolonial Perspectives on Securitization Theory and Its Critics, 3 Eur. J. Int'l Security 281, 287, 295 (2018).
410 B. S. Chimni, International Institutions Today: An Imperial Global State in the Making, 15 Eur. J. Int'l L. 1 (2004).
411 See generally Adom Getachew, Worldmaking After Empire: The Rise and Fall of Self-Determination (2019); Bandung, Global History & International Law (Luis Eslava, Michael Fakhri & Vasuki Nesiah eds., 2017).
412 Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400–1900, at 10–15 (2002).
413 Kanishka Jayasuriya, Struggle Over Legality in the Midnight Hour: Governing the International State of Emergency, in Emergencies and the Limits of Legality 360 (Victor V. Ramraj ed., 2006).
414 Id. at 367–68 (arguing that rise to prominence of the “enemy combatant” as a legal category is emblematic of this new reality).
415 See, e.g., Fakhri, supra note 165; Maggie Blackhawk, On Power and the Law: McGirt v. Oklahoma, 2020 Sup. Ct. Rev. 367 (2021).
416 See, in addition to what is cited above, Henry J. Richardson III, The Origins of African American Interests in International Law (2008); B. Rajagopal, International Law from Below (2003); James Thuo Gathii, The Promise of International Law: A Third World View, 114 ASIL Proc. 165 (2020).
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