8. The National Security Exception in International Trade and Cybersecurity

Kartikeya Garg, International Trade Policy Section, Trade, Oceans and Natural Resources Directorate, Commonwealth Secretariat; email: [email protected]

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The national security exception is a crucial part of most trade agreements, and has historically protected against traditional attacks to states’ security. However, over time, threats to national security have evolved, to include, among other things, cyberthreats. Article XXI of the General Agreement on Tariffs and Trade, first interpreted by the World Trade Organization’s Russia–Traffic in Transit Panel Report in 2019, has led to many debates regarding the scope of the provision and its application to cyberthreats.


This article discusses the plausibility of including state-imposed cybersecurity measures within the ambit of this interpretation of Article XXI. Apart from this provision, various Free Trade Agreements (FTAs) have incorporated different formulations of the security exception. This article
analyses four main formulations of the exception in various FTAs and discusses the best option to include cybersecurity measures within their ambit, without leaving too broad of a scope to allow misuse. It recommends a balance between an explicit reference to cybersecurity measures and an emphasis on the principle of good faith as an effective check to ensure the balance between trade and cybersecurity is met.