Essential Security Interests of States - Some Observations on the Emerging Practice under International Law

Authors

  • Joanna Połatyńska Faculty of Law and Administration, University of Łódź

DOI:

https://doi.org/10.15290/eejtr.2021.05.02.07

Keywords:

essential security interest, ESI clause, GATT, investment arbitration, BIT, state of necessity

Abstract

This paper tackles the notion of the essential security interest of a State as an exception enshrined in numerous treaties since the beginning of the 20th century. The purpose of the analysis is to establish whether the practice of international courts, tribunals, and other bodies competent to settle the disputes under international law has created any guidelines for interpretation of sometimes vague and discretionary terms used in the wording of essential security interest clauses included in different international treaties. The method is based on the exegetical analysis of jurisprudence of international courts, tribunals and dispute settlement bodies in cases concerning interpretation of essential security interest clauses. The protection of vital interests of the State, designed as an exception to treaty-based international obligations, has been well established in treaty practice. The wordings of particular essential security interest clauses differ depending on the objects and purposes of the particular treaties, but the core stipulations of the essential security interest clauses remain very similar. The analysis of the judgments, awards and decisions allows to formulate some general conclusions as to the application of essential security interest clauses. Measures allowed under essential security interest exception must be intended to protect ‘essential security interests’ of the invoking State. Although States remain discretion to define their essential security interests, it must be done in good faith, consistent with the ordinary meaning of the stipulation and treaties’ object and purpose.

Author Biography

Joanna Połatyńska, Faculty of Law and Administration, University of Łódź

References

Bogdanova, I. (2019). Adjudication of the GATT security clause: to be or not to be, this is the question. WTI Working Paper No. 01/2019, 2-25.

Cibils, A. & Weisbrot, M. & Kar, D. (2002). Argentina Since Default: The IMF and the Depression. Center for Economic and Policy Research.

della Paolera, G. & Taylor, A.M. (1997). Finance and Development in an Emerging Market: Argentina and the Interwar Period. NBER Working Paper No. 6236.

Kurtz, J. (2008). Adjudging the Exceptional at International Law: Security, Public Order and Financial Crisis. IILJ Working Paper 2008/6, 1-56.

Moravcsik, A. (1997). Taking Preferences Seriously: A Liberal Theory of International Politics. International Organization. 51 (4), 513–553.

Pascoe, T. (2012). Britain is following Argentina on the road to ruin. The Telegraph. London (2 Oct. 2012).

Saiegh, S.M. (1996). The Rise of Argentina's Economic Prosperity: An Institutional Analysis. Stanford University.

Saxton, J. (2003). Argentina's Economic Crisis: Causes and Cures. Joint Economic Committee. Washington, D.C.: United States Congress.

Schill, S. & Briese, R. (2009). “If the State Considers”: Self-Judging Clauses in International Dispute Settlement. Max Planck Yearbook of United Nations Law, vol. 13, 61-140.

Yannaca-Small, K. (2007). Essential Security Interests under International Investment Law. OECD International Investment Perspectives: Freedom of Investment in a Changing World. 2007 Ed., 93-134.

Nationality Decrees in Tunis and Morocco (1923). Advisory Opinion No. 4, Nationality Decrees Issued in Tunis and Morocco, 4, Permanent Court of International Justice, Feb. 7, 1923.

Nicaragua (1986). Military and Paramilitary Activities in und against Nicaragua, (Nicaragua v. United States of America). Merits, Judgment. I.C.J. Reports 1986

Oil Platforms (1996). Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996

Oil Platforms (2003). Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003

CMS (2005). Gas Transmission Company v. The Republic of Argentina, ICSID Case No. ARB/01/8

LG&E (2007). LG&E Energy Corp., LG&E Capital Corp., and LG&E International, Inc .v. The Republic of Argentina, ICSID Case No. ARB/02/1

Enron (2007). Enron Corporation and Ponderosa Assets, L.P. v. The Republic of Argentina, ICSID Case No. ARB/01/3

Russia – Traffic in Transit (2019). Russian Federation – Measures Concerning Traffic in Transit, Case no. DS512, WTO Panel Report.

US-Iran Amity Treaty. Treaty of Amity, Economic Relations and Consular Rights, signed Aug. 15, 1955 at Tehran. U.N.T.S. 4132.

FCN Treaty. US-Nicaragua Treaty of Friendship, Commerce, and Navigation, signed Jan. 21, 1956 at Managua, U.N.T.S. 5224.

US-Argentina BIT. Treaty Between the United States of America and the Argentine Republic Concerning the Reciprocal Encouragement and Protection of Investment, signed Nov. 14, 1991 at Washington D.C., (1992) 31 ILM 124

GATS (1994). General Agreement on Trade in Services, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1B, 1869 U.N.T.S. 183, 33 I.L.M. 1167 (1994).

GATT (1994). General Agreement on Tariffs and Trade 1994, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 U.N.T.S. 187, 33 I.L.M. 1153 (1994)

TRIPS (1994). Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994)

Vienna Convention on the Law of Treaties, signed May 23, 1969 at Vienna, U.N.T.S. 18232.

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Published

2022-02-20

How to Cite

Połatyńska, J. (2022). Essential Security Interests of States - Some Observations on the Emerging Practice under International Law. Eastern European Journal of Transnational Relations, 5(2), 85–92. https://doi.org/10.15290/eejtr.2021.05.02.07

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Articles