Whither security? The concept of ‘essential security interests’ in investment treaties’ security exceptions

Abstract

Unlike the WTO agreements, most investment treaties’ security exceptions do not further define the concept of ‘essential security interests’, creating significant uncertainty. Securitization theory illuminates conceptual problems associated with an expansive approach to security, security’s role in justifying extraordinary deontic powers, and securitization’s contingency on intersubjective agreement. As securitizing actors, states have put forward four paradigms of security, each significantly expanding the concept beyond its traditional contours. Investors have resisted with two counter-securitizing moves, each involving several tactics. Reacting to these moves and countermoves, tribunals have functioned as either empowering audiences or as nullifying audiences. The ambiguity of essentiality has also generated incongruent interpretations. States’, investors’, and tribunals’ approaches operate on three different planes, each with potential to significantly constrain security’s scope or even negate a successful securitization. Expansive and restrictive interpretations of security present competing implications that make defining it an invidious task, but some interpretations of essentiality are more tenable than others. Overall, tribunals’ narrow interpretations of the concept have operated to considerably limit states’ securitization attempts. While investors should keep a close eye on pending cases involving potentially self-judging security exceptions, they need not be overly concerned that security exceptions pose a significant threat to their interests.