The Trump and Biden administrations have significantly expanded export controls, which prohibit the unlicensed export of certain products or information.
Biden has also called for modernization of international trade rules.
The 1947 General Agreement on Tariffs and Trade has a pretty sweeping obligation for countries to not restrict exports. wto.org/english/docs_e…
But the GATT also has a pretty sweeping national security exception.
As @KrzPelc writes, the exception is so broad that governments have been loath to invoke it, for fear that it would inspire copycat actions and trade wars.
In fact, and as documented in Pelc's book, the US has a long history of justifying its export control regime - challenged by Czechoslovakia in 1949 - on natsec / XXI grounds, maintaining that it is self-judging for the country invoking it. worldtradelaw.net/reports/gattpa…
More recently, in a WTO-sponsored trade policy review of the US in 2008, China challenged US export controls as violating free trade, and the Bush administration reaffirmed the 1949 US position. (h/t @snlester) docs.wto.org/dol2fe/Pages/S…
But several things have changed since then.
First, whether one agrees with the underlying policy or not, export controls in 2021 are arguably driven by economic as much as natsec concerns. industryweek.com/the-economy/pu…
From a US law perspective, that is not fatal, as rules going back decades mix national security and economic security rationales and permit consideration of both or either. toddntucker.medium.com/are-national-s…
However, and here's the second thing, WTO adjudicators have since made a historic pronouncement that they will not give blanket deference to countries' invocation of GATT Article XXI. washingtonpost.com/politics/2019/…
In particular, adjudicators have noted that the WTO law and practice makes sharper distinctions between natsec and economic concerns. wto.org/english/tratop…
The adjudicators made particular note of where the US delegation had started in the GATT negotiations (wanting more policy flexibility) and where they ended up (agreeing with other countries to limit policy flexibility).
Those quotes are likely on tattoos in the Chinese trade ministry's general counsel's office, who could be expected to contest the existence of every element of Article XXI ("war", "other emergency", "international relations")
See also @loyaladvisor here: repository.law.umich.edu/mjil/vol41/iss…
But... and this is thing 3, the dispute settlement functions at the WTO are seriously impaired, to say the least.
This may limit the practical consequence of any conflict between GATT/WTO obligations and the US export control regime. thenation.com/article/archiv…
Indeed, Europe has indicated some openness to working with Biden on tech. There's no reason this couldn't include some joint declaration/posture at the WTO on the interconnectedness of security and economic resilience. politico.eu/article/eu-see…
Thirteen senators call on Biden to temporarily suspend Buy American waivers for trade agreement partners, noting "this crisis has demonstrated the risks of long foreign supply chains."
This presidential discretion is built into the Trade Agreements Act of 1979, which greenlit the waivers in the first place. No statutory change needed. law.cornell.edu/uscode/text/19…
While some will bemoan the symbolism of closing procurement opportunities for allies, the reality is that: a) there doesn't appear to much uptake of this anyway; and gao.gov/products/gao-1…
Also from Sept. 2020, here's a note on Jamaica contemplating same, after a debate in 2016 around deplatforming her as Jamaican head of state. express.co.uk/news/royal/133…
If EU countries pulled out of the Energy Charter Treaty tomorrow, fossil fuel companies could still sue them for decarbonization efforts for 20 (!!) years. politico.eu/article/energy…
That gets uncomfortably close to the EU's 2050 target date for attaining carbon neutrality. ec.europa.eu/clima/policies…
It announces it's US policy "to strengthen the resilience of America’s supply chains," citing as benefits rebuilt domestic manufacturing capacity, competitiveness, good jobs, fighting climate change, and helping racial justice and underserved communities.
Here are the costs👇
By June 4 of this year, NEC and NSC are instructed to coordinate supply chain reviews in four industries, with four agencies writing them up
DOC: chips, advanced packaging
DOE: high-capacity batteries, including for EVs
DOD: critical minerals
HHS: pharmaceuticals,. API