The role of security exceptions in international investment law

This thesis examines national security/essential security exceptions in the context of international investment law (IIL). Security exceptions in IIL had not received attention prior to Argentina’s invocation of essential security exceptions to legitimise its emergency measures against its economic crisis. Consequently, the Argentine cases shed light on the scope of security measures in the IIL arena in that it raised a question as to whether a measure to tackle an economic crisis could fall within the ambit of essential security interests. Although security has been generally understood as closely associated with national defence, i.e. military security, factors, such as the emergence of new security threats, including energy dependence, economic crisis, and environmental catastrophes, have also affected the scope of security measures against foreign investors. While the tribunals of the Argentine cases regarded economic security as imperative as military security, they did not clearly delineate the scope of legitimate security measures. Therefore, in this thesis, I seek to investigate this limitation and to provide a solution to it by applying insights from critical security studies, which highlight the evolution and broadening of security, into IIL. By applying critical security studies into the IIL arena, this thesis critiques tribunals’ interpretation of security exceptions and also explores the implications of the broadening of security that would affect the regulatory space of host states and thereby the interests of foreign investors. The types of foreign investors subject to the potential implications, as a result of the broadening of security, encompass corporate foreign investors, government-controlled foreign investors, and individual foreign investors. Thus, this thesis examines whether each type of foreign investors has distinct security considerations and thus is subject to a different degree of scrutiny in terms of security interests. The thesis argues that a newly delineated scope of security can also contribute to adjusting the dynamics between host states and foreign investors. As the IIL system has developed heavily focusing on the attraction of foreign capital, this has led the system to fail to highlight the importance of the regulatory space of host states. While the concept of national security takes fundamental part in national policies and the role of exceptions in IIL is pivotal to secure policy-space of host states, the efficacy of current security exceptions in IIL can be controversial given the strict conditions for their invocation. Therefore, the application of a broadened notion of security can help host states to secure their policy space in order to tackle a serious and urgent threat to national security. Yet, the broadening of security does not signify an unlimited expansion of the concept for the legitimacy of security measures