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Three topics combine in this paper: international trade, national security, and energy. The specific focus of the paper is the General Agreement on Tariffs and Trade (GATT) and the "essential security interests" exception contained in Article XXI. The provisions of the GATT set out the structure of a system to encourage international trade by reducing tariffs and other trade barriers. More broadly, many aspects of international trade in energy have developed outside the structure of GATT or with the implied assumption that Article XXI or another GATT exception would take them out of normal GATT arrangements. National security matters have often played a role in energy law and policy in a way that overrides free trade objectives. Nonetheless, several recent treaties and decisions have imposed free trade goals to override national security claims involving energy trade. This article examines Article XXI and its application. The law of Article XXI has been created by non-energy trade. We then turn to energy trade. Using United States law as an example, we examine some of the areas in which alleged national security reasons have set a policy other than the full working of an international free market. We conclude with a look at the changing meaning of national security in the post-Cold War world.

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Journal of Energy and Natural Resources Law



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