The New National Security Challenge to the Economic Order

National security policies increasingly threaten the rules that govern trade and investment flows. This problem is deeper and far more intractable than recent high-profile controversies, such as disputes over the Trump Administration's steel and aluminum tariffs, suggest. Governments worldwide...

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Bibliographic Details
Published in:The Yale law journal 2020-02, Vol.129 (4), p.1020-1098
Main Author: HEATH, J. BENTON
Format: Article
Language:English
Subjects:
Claims
Climate change
Climatic changes
Cybercrime
Cybersecurity
Disputes
Economic aspects
Economic conditions
Economic development
ECONOMICS
Flexibility
GOOD FAITH
Good faith (Law)
INDUSTRY
Infrastructure
International trade
INVESTMENTS
Law and legislation
MEDIA
National security
Political aspects
RISK
Security
Tariffs
Terrorism
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Summary:National security policies increasingly threaten the rules that govern trade and investment flows. This problem is deeper and far more intractable than recent high-profile controversies, such as disputes over the Trump Administration's steel and aluminum tariffs, suggest. Governments worldwide have adopted national security policies that address an increasingly wide array of risks and vulnerabilities, including climate change; pandemic disease; cybercrime; terrorism; and threats to infrastructure, industry, and the media. These policies are also increasingly likely to conflict with trade and investment rules. In other words, while today's high-profile controversies center on alleged abuses of national security in economic law, it is the potential for goodfaith but novel national security claims that poses a more significant and permanent threat to the system. This Article is the first to map the new national security challenge and consider its implications for reforming the economic order. It demonstrates that the twenty-first-century expansion of national security policy undermines existing models for separating security measures from ordinary economic regulation. What is needed, it argues, is a new model for reintegrating the economic order with the national security state. To that end, this Article identifies reforms that allow for some oversight of increasingly novel national security claims while preserving flexibility for governments to redefine their security policies in response to twenty-first-century threats.
ISSN:0044-0094
1939-8611