In an era marked by the ‘technologization’ of modern warfare and the privatization of military supply chains, numerous items possess dual-use potential, capable of serving both civilian and military ends. Concurrently, governments increasingly view the acquisition of specific goods, materials, services, and technologies by rival states as a threat to their security. As a result, economic restrictions imposed on dual-use items, including export controls, have proliferated in recent years. These measures have elicited concerns regarding disguised protectionism and potential non-compliance with trade agreements. Central to the debate is the difficulty to strike a balance between addressing legitimate security imperatives and preventing economic protectionism. This article delves into the intersection of trade and security in the regulation of dual-use goods. It offers a focused examination of Article XXI(b)(ii) of the General Agreement on Tariffs and Trade (GATT) concerning trade restrictions on products destined for military use. The paper first reveals limitations of this provision in governing the regulation of dual-use items. Furthermore, it introduces the concept of a ‘purpose test’ provided by the provision as a safeguard against abusive invocation. Lastly, it sheds light on the challenge posed by the standard of proof issue, which complicates the review and mitigation of bad-faith invocations of security exceptions.

This article challenges the widely held view that WTO Members are not permitted to impose trade restrictions on other WTO Members in the form of countermeasures for breaches of international law. It cautions that this generally held view has wider implications for international law and multilateralism because countermeasures are a significant means of enforcing and preserving the normative integrity of international obligations outside the WTO, including erga omnes and erga omnes partes obligations. Arguments supporting their ‘displacement’ must be based on clear evidence, which this article shows to be lacking. This article also attempts to allay the (understandable but perhaps exaggerated) concern that such countermeasures might undermine the predictability of the WTO system. Trade countermeasures for breaches of extra-WTO obligations are subject to stringent conditions under customary international law and to judicial scrutiny by means of WTO adjudication, both of which minimise the space for abuse and the risk of unpredictability.

The dyadic rule–exception structure common to many legal systems has posed particular interpretive difficulties in international trade and investment law. Adjudicators have interpreted general and security exceptions in GATT, GATS and cognate provisions of investment treaties in divergent ways, and the analytic character of these provisions is under-theorised in the literature. This article argues that we should understand exceptions from a deontological perspective as permissions that affirm governmental regulatory capacity and thus limit the scope of the commands set out in the treaty. This characterisation of exceptions has both symbolic and practical implications, of which this article discusses two: determining the exception's applicability as a preliminary matter rather than as a defence, which would in turn permit consideration of regulatory purpose at the point of obligation; and whether the applicability of an exception is properly a question of merits or jurisdiction.