National security has emerged as a pivotal issue in the domains of international politics and law. Its scope has expanded significantly in contemporary contexts. Host States can leverage national security as a defence within International Investment Law (IIL). From the perspective of Customary International Law (CIL), host States may invoke Article 25 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), namely the plea of necessity, as a national security defence to preclude wrongfulness. Certain bilateral investment treaties incorporate an essential security exception clause, known as the 'non-precluded measures provision,' which further complicates the application of Article 25 of ARSIWA. Consequently, the investor-State-dispute-settlement tribunals have rendered divergent conclusions, revolving around the applicability of the CIL-based national security defence, its relationship with treaty-based defences, and the interpretation of Article 25 of ARSIWA. The employed methodologies are doctrinal research and critical legal studies (CLS). CLS examines the interaction between international politics and law, uncovering the structural biases inherent in international legal institutions that reflect the preferences and interests of dominant decision-makers. By structuralism, CLS posits that the indeterminacy of international law enables decision-makers to interpret laws according to their preferences. Thus, it is imperative to analyse the reasons behind the tribunals' conclusions. Additionally, legal positivism underpins CLS, making doctrinal research a prerequisite for CLS analysis. The materials used include CIL, treaties, precedent cases, and general principles of law. Neoliberalism plays a significant role in the CLS analysis of IIL. The CMS v Argentina Tribunal dismissed the plea of necessity, establishing a high threshold for invoking ARSIWA, indicative of a neoliberal bias aimed at preserving the neoliberal economic order. Conversely, the LG&E v Argentina Tribunal, while still imposing relatively stringent requirements for invoking ARSIWA, approved the national security defence based on the same facts. This Tribunal displayed hypocrisy by upholding a neoliberal bias while pursuing international capital's sustainable exploitation. The Unión v Egypt Tribunal dismissed the plea of necessity, adopting an ostrich policy by avoiding the issue of public safety, which resulted in a straw-man fallacy. This Tribunal appeared confused about neoliberalism after the 2008 Global Financial Crisis and opted to hedge its bets. Issues such as the differences between ordoliberalism and neoliberalism, the European Union's Strategic Autonomy, and the hegemonic rivalry between the United States and China, may potentially shape a new structural bias in the Huawei v Sweden Tribunal.
| Identifer | oai:union.ndltd.org:UPSALLA1/oai:DiVA.org:su-231812 |
| Date | January 2024 |
| Creators | Ren, Shuailong |
| Publisher | Stockholms universitet, Stockholm Center for International Law and Justice (SCILJ) |
| Source Sets | DiVA Archive at Upsalla University |
| Language | English |
| Detected Language | English |
| Type | Student thesis, info:eu-repo/semantics/bachelorThesis, text |
| Format | application/pdf |
| Rights | info:eu-repo/semantics/openAccess |
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