Cyberspace as a fifth dimension of national security: trade measure exceptions

• Date: 28 June 2023
• Pages: 67-88
• DOI: https://doi.org/10.1108/JITLP-01-2023-0004
• Published date: 28 June 2023
• Subject Matter: Strategy,International business,International business law,Economics,International economics,International trade
• Author: Stephanie Garibaldi,Felicity Deane

Cyberspace as a f‌ifth dimension

of national security: trade

measure exceptions

Stephanie Garibaldi and Felicity Deane

Faculty of Business and Law, School of Law, Queensland University of Technology,

Brisbane, Australia

Abstract

Purpose –The purpose of this paper is to demonstratethat the national security exception will not allow

governments to respond to cyberspace threats within the conf‌ines of the world trade organization (WTO)

rules.

Design/methodology/approach –This paper is a desktop study of international trade laws with a

specif‌ic focus on the convergenceof cybersecurity measures and the national securityexception provisions of

the WTO.

Findings –The trends towards cybersecuritymeasures may mean there will inevitably be an evolutionof

trade norms. The questionis, will the collective of the WTO be a part of the evolution, or merely an observer?

In the authors’view,it is crucial that it is the former.

Originality/value –This study makes three contributions.It provides a literature review and discussion

on cybersecurity and the impacton trade. It demonstrates that the national security exception provisionwill

not excuse these measures,and it aims to underscore the importance of the WTO as a community of nations

where negotiationon important global issues is possible.

Keywords China, WTO, Trade, Cybersecurity, 5G, National security

Paper type Research paper

1. Introduction

The digital transformation has been enabled by connectivity associated with information

and communication technologies (ICTs). The increased connectivity through digital

means has allowed for advances in medicine, technology and resolution of other critical

global issues (Tuthill and Roy, 2012). However, such advancements have also led to

vulnerabilities (Wang, 2021). This is particularly the case as countries have also become

dependent on the trade and services related to ICTs (Friedman, 2013). This global

interconnectivity has meant that there are new threats and concerns synonymous with

national security (Meltzer, 2020). Indeed, the digital revolution has had a corresponding

increase in both the sophistication and exposure to cybersecurity threats. These threats

have been widespread, targeting government networks, critical infrastructure and

private-sector networks (Peng, 2015).

Although protectionist policies have emerged, commentators suggest that trade barriers

will not lead to better security; on the contrary, they suggest barriers will harm both trade and

security (Selby, 2017). Alarm about trade barriers naturally leads one to the world trade

organization (WTO) rules and, increasingly to the provisions of preferential trade agreements.

This paper aims to make an original contribution by unravelling the concerns around

cybersecurity to demonstrate how this national and international concern will be treated

through the multilateral trading regime. The national security exceptions are some of the

Cyberspace

67

Received23 January 2023

Revised4 April 2023

Accepted13 June 2023

Journalof International Trade

Lawand Policy

Vol.22 No. 2, 2023

pp. 67-88

© Emerald Publishing Limited

1477-0024

DOI 10.1108/JITLP-01-2023-0004

The current issue and full text archive of this journal is available on Emerald Insight at:

https://www.emerald.com/insight/1477-0024.htm

broader exceptions under the WTO (Jackson, 1989). Until 2016, WTO members rarely invoked

this exception. This reluctance derived from member respect for the intention that the

exception only be relied on in extreme circumstances (Boklan and Bahri, 2020). The

unwillingness to use this exception meant that for many decades it was not tested in dispute

settlement and was not used to mask what would be co nsidered otherwise protectionist

measures (Ferracane, 2018). However, in more recent times, the integrity of the members has

been called into question when the national security exception has been invoked and

challenged through the dispute settlement mechanism (Ferracane, 2018). Although one could

argue that this exception provision is necessary to ensure the multilateral trading system

remains relevant, the overuse of the provision and applying it outside of its intention will

undermine the legitimacy of the WTO (Boklan and Bahri, 2020,p.124).

The overriding purpose of this paper is to consider whetherthe measures introduced by

governments to respond to cyberspace threats will be justif‌ied by the WTO security

exception provisions and in light of this to show how the WTO community may need to

evolve. In Section 2 of this paper, we describe the scope of the cyberspace environment to

demonstrate that cyberspace security is about the security of a system as a whole [1]. In

particular, this article considers some of the trade barriers that have been imposed in

response to concerns related to the telecommunications infrastructure. Although

telecommunicationsis only one aspect of cyberspace, it is nonetheless vital as “5G networks

have the potential of becomingthe digital nervous system of the contemporary societies”[2].

In Section 3, we evaluate whether trade barriers will be justif‌ied by the WTO national

security exception. In this section, we conclude that the understanding of national security

as articulated by panel decisions is unlikely to incorporate cybersecurity measures. In light

of this, we consider how preferential trade agreements have expanded upon the national

security def‌inition. In Section4, we forecast the need for changes in trading norms and issue

caution about potential bottom-up approaches. Ultimately, our f‌indings indicate that the

transition to the digital will mean trade norms will likely evolve over time either through

WTO negotiations or by default through preferential trade agreements. We argue that the

WTO community remains a criticalforum for this.

2. Cybersecurity as a threat to trade

Cyberspace is best described as the digital environment. It exists without physical form

(Farsaris, 2021). Although, it is created through networks, transmission systems and ICT

infrastructure (Fang, 2018), creating a false belief that it is a geographical environment

(Adams and Warf, 1997) and assignable to a particular territory (Huang et al., 2022). The

meaning of cyberspace has evolved from references of physical rooms in 1980s science

f‌iction to describing a virtual, digital world created through interconnected infrastructure

such as computer networks,data and information, hardware and software (Ning et al.,2018).

Put differently, cyberspaceis a “collective concept [...]def‌ined as the diverse experiences of

space associated with computingand related technologies”(Strate, 1999). Cyberspace allows

people to exchange information, store data and conduct transactions in ways that has

created a f‌ifth dimension (Fang, 2018).Both the internet and the World Wide Web are often

confused with, but different from, cyberspace. The World Wide Web is the environment

where web resources are identif‌ied by uniform resource locators and can be accessed

through browsing programmes(Leventopoulos and Benias, 2017). The internet, on the other

hand, is a community of interconnected devices that use a common language to

communicate (Leventopoulosand Benias, 2017, p. 33). The Internet of Things (IoT) involves

the connection of almost any type of device to the internet where data will be exchanged

(Leventopoulos and Benias, 2017, p. 34). The IoT is “embedded with software intelligence,

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