In a 1960 U.S. Supreme Court decision, Justice Potter Stewart famously declared that while he couldn’t define pornography, “I know it when I see it.” That was intended to be a limiting principle that still sought to accommodate local sensitivities. A similar sort of flexibility has crept into thinking about “national security,” as governments claim a unilateral right to define it as they please.
There are historical and legal rationales for an expanded notion of national security, but many advocates of “the new national security” are opportunists, seeking a respectable veneer for otherwise legally questionable actions. Unfortunately, there is no international equivalent to Justice Stewart who can definitively declare that while (s)he “may know it when I see it, this isn’t it.”
For most people, national security centers on defending “the state” against foreign actions that threaten its territorial or physical integrity, and the primary means of providing for that defense is with a military. There are other instruments of foreign policy but in an anarchic world with no supranational police, those alternative tools of statecraft are backstopped by the threat of the use of force.
That traditional perspective has been subject to increasing challenge. Proponents of “human security” focus on individual well-being rather than national interests. Others insist that prosperity is as, if not more, important than physical security and thus economic interests should be foremost in the minds of policymakers.
MIT Professor Richard Samuels describes this as the belief that societies must “organize to defend the wealth of individuals they comprise” — their skills, productive relationships, firms and R&D centers that create their wealth — and argues that this logic has long prevailed in Japan. That approach manifested in what Samuels calls “technonationalism,” a term that is freighted with negative implications — it was the trigger for the tensions that dominated relations between Japan and the United States in the 1980s and 1990s — but stripped of the normative bias, reflects a considered and responsible framework for national security.
Technonationalism seems to be back in vogue, and not just in Japan. Chinese thinking about national wealth and power echoes that of Japan, and proposals by the Beijing government to make the country a world leader in critical industries — discussed in my last column about semiconductors — stem from that same impulse.
While technonationalism is a long established and increasingly compelling approach to national security, especially in a world in which one of the major powers uses that thinking, its adoption raises two inter-related concerns. First, is it compatible with a globalized economy? When most countries promote open exchange, governments take that access but don’t reciprocate enjoy a substantial advantage. That was the complaint leveled against Tokyo in the 1980s and 1990s.
Second, its embrace — or more precisely, that of a broad definition of economic well-being as a stand-in for national security — invites abuse, which appears to be occurring. Most treaties have exemptions for national security concerns and many governments have authorities that allow executives to take economic steps, usually sanctions, to meet national security needs.
Arguing that the loss of jobs is a national security issue, the U.S. has taken a range of actions to correct its trade imbalances. The most egregious is its use of Section 232 of the Trade Expansion Act of 1962 to go after countries deemed unfair traders.
In its first two years, the U.S. administration of President Donald Trump five times invoked national security to justify resort to Section 232, pointing to imports of steel and aluminum, autos and auto parts, uranium, and titanium sponges. Using 232 isn’t unprecedented: It’s been done 31 times in the last half century, but it’s been largely neglected during the last 30 years, and the steel and aluminum cases were the first and second times that trade restrictions had been imposed under that law for a product other than oil or petroleum.
It’s easy to pick on the U.S. for abusing this right, but it isn’t the only offender. Japan, too, has been charged with over-reach. The administration of Prime Minister Shinzo Abe justified tightened export procedures against South Korea last summer by arguing that products were being diverted and threatened national security. Some observers think the driving force was Seoul’s insistence on litigating historical issues (a claim that Tokyo denies).
New regulations that scrutinize foreign investment in Japan, passed late last year, also reflect national security concerns. Foreign investments deserve more scrutiny, but the list of firms under the ambit of the new regulations — more than 500, or more than 13 percent of Japan’s listed companies — reveals a liberal definition of national security. The Financial Times found companies that make pens, run hot springs and travel agencies, and operate baseball stadiums on the list, reviving fears that one goal of the legislation is insulating those companies from shareholder activism.
There are legitimate reasons to make national security exceptions. Japan’s new investment legislation identified several sectors to scrutinize: They include arms, aircraft, space-related industries, energy, general-purpose products with potential to be used for military purposes, cybersecurity-related, telecommunications, water supply and railways. Similar legislation has been passed or is under consideration in the U.S., Europe and other capitals.
Legal experts concede there is no clear definition of “national security” in this area. Exports of weapons or instruments of war qualify, but there is no clear line on what is excluded. Almost anything could be squeezed in, with the right wordsmithing. And that is the danger: If more than a handful of governments seize upon this loophole, then the framework for international trade could collapse.
The World Trade Organization has tried to fill the gap. Article XXI of the treaty that established the organization says that WTO rules can’t prevent a country “from taking any action which it considers necessary for the protection of its essential security interests,” including those “taken in time of war or other emergency in international relations.”
That exception had not been challenged until 2016, when Ukraine sued Russia in the WTO for impeding exports to third markets that crossed Russian territory. Moscow argued that it was justified in blocking trade for reasons of national security: it is at war with Ukraine. The U.S. backed Russia’s position in the suit — although it supports Ukraine in the war — asserting that a claim of “national security” is not justifiable, i.e., not subject to review.
In a ruling last year, the WTO panel tried to impose some order. While siding with Russia that the national security exception was applicable in this case, it also concluded that there are objective standards to assess claims of “national security” and governments can’t throw out the term as a shield against international scrutiny. It decided that what constitutes a “war or other emergency in international relations” is not abstract at all and could be factually determined.
That decision will not end the matter. Canada, China, the European Union, India, Norway, Russia, Switzerland and Turkey have filed disputes against the U.S. at the WTO arguing that its national security justification for steel and aluminum tariffs is specious, and Qatar is suing the United Arab Emirates over a trade embargo that uses the same rationale.
The “national security” debate will only get more intense as new technologies transform the way economies work, expanding the ways that societies can be threatened or imperiled. There are ways to reconcile this evolving notion of national security with an integrated global trade system, but the existing framework leaves far too much discretion to the whims of national leaders, most of whom do not possess the self-restraint of Justice Stewart.
Brad Glosserman is deputy director of and visiting professor at the Center for Rule Making Strategies at Tama University as well as senior adviser (nonresident) at Pacific Forum. He is the author of "Peak Japan: The End of Great Ambitions."