Title: Internet Regulation and the Invocation of Security Exceptions in the WTO Agreement

Author: Sun Nanxiang

Abstract: Cyberspace is a virtual/notional environment for information exchange that can promote cross-border trade and investment significantly. In the 21st century, as the Internet penetrates societies ever deeper, e-commerce has gradually become the main form of international trading activities. Arguably, cyberspace is generally subject to the principles of sovereignty and territorial jurisdiction. However, laissez-faire economic practices in cyberspace, without due regulation, may pose a danger to national security, public order and, in general, everyday life. The WTO legal framework is a system of multiple agreements. Any issue may be the subject of provisions of different agreements or different provisions of the same agreement in WTO framework. In contrast to the general exception clause, the security exceptions clause is considered a “gentleman’s provision” and WTO members are committed to avoiding invoking it. However, an analysis of the security exceptions helps to provide a deeper understanding of the method the Internet regulations are applied. Through the analytical framework of the law of treaties, the core issue of the interpretation and application of security exceptions is to determine the “self-judging” nature of the security exceptions, and to define the concepts of “essential security interests” and “emergency in international relations” in a reasonable manner. Specifically, although the security exceptions entitle a member to assert both essential security interests and necessities, the principle of good faith should be followed in the application and interpretation of the clause. According to the law of treaties, cybersecurity may constitute “essential security interests” under Article XXI of GATT 1994, while cybersecurity threats may constitute an “emergency in international relations” under Article XXI of GATT 1994.

Keywords: Cybersecurity, Security Exceptions, Self-judging Clause, Essential Security Interests