The New National Security Challenge to the Economic Order - The New National Security Challenge - A first mapping and reform implications for economic governance

Sep 14, 2026

National security policies increasingly endanger the legal rules governing global trade and investment flows, creating deeper and more persistent tensions than recent tariff controversies indicate. Governments worldwide now invoke security grounds spanning climate change, pandemics, cybercrime, terrorism, and threats to infrastructure, industry, and media. These claims can conflict with trade and investment obligations. The article maps this emerging challenge and proposes reforms that reintegrate economic order with the national security state while enabling oversight without sacrificing governmental flexibility.

LanguageEnglish

CategoryResearch & Report

FormatPDF

Pages79

Reading Time3 h 19 min

AccessFree to download

Introduction

New national security and the challenge to international economic law

The fate of national security exceptionalism

Judging the national security state in economic tribunals

Rethinking institutional arrangements for security governance

Conclusion

J . B E N T O N H EAT H The New National Security Challenge to the Economic Order abstract . National security policies increasingly threaten the rules that govern trade and investment ﬂows. This problem is deeper and far more intractable than recent high-proﬁle controversies, such as disputes over the Trump Administration’s steel and aluminum tariffs, suggest. Governments worldwide have adopted national security policies that address an increasingly wide array of risks and vulnerabilities, including climate change; pandemic disease; cybercrime; terrorism; and threats to infrastructure, industry, and the media. These policies are also increasingly likely to conﬂict with trade and investment rules. In other words, while today’s high-proﬁle controversies center on alleged abuses of national security in economic law, it is the potential for goodfaith but novel national security claims that poses a more signiﬁcant and permanent threat to the system. This Article is the ﬁrst to map the new national security challenge and consider its implications for reforming the economic order. It demonstrates that the twenty-ﬁrst-century expansion of national security policy undermines existing models for separating security measures from ordinary economic regulation. What is needed, it argues, is a new model for reintegrating the economic order with the national security state. To that end, this Article identiﬁes reforms that allow for some oversight of increasingly novel national security claims while preserving ﬂexibility for governments to redeﬁne their security policies in response to twenty-ﬁrst-century threats. author. Acting Assistant Professor ofLawyering, New York University School ofLaw. Many thanks to José E. Alvarez, Alberto Alvarez-Jimenez, JulianArato, Simon Batifort, Ilya Beylin, Pamela Bookman, Elena Chachko, Kathleen Claussen, Harlan Cohen, Melissa Durkee, Robin Effron, Seth Endo, Geoffrey Gertz, Carla Greenberg, Mohamed Helal, Esther Hong, Robert Howse, Rebecca Ingber, Maryam Jamshidi, Tal Kastner, Benedict Kingsbury, Steven Koh, Nicolas Lamp, Simon Lester, Will Moon, Stratos Pahis, Mona Pinchis-Paulsen, Sergio Puig, Danya Reda, Anthea Roberts, Shalev Roisman, Aaron Simowitz, Thomas Streinz, Emily Winston, Alyson Zureick, and participants in conferences and workshops at McGill University, Brooklyn Law School, the Cato Institute, and New York University School of Law. Thanks also to Rachel Brown, Josh Zoffer, and the staff of the Yale Law Journal for careful, skilled, and conscientious editing. article contents introduction 1022 i. new national security and the challenge to international economic law 1031 A. New Security Threats 1034 B. New Actors 1040 C. New Vulnerabilities 1042 D. New Temporalities 1045 E. New Politics 1047 ii. the fate of national security exceptional ism 1050 A. The Cold War Settlement 1051 B. Corrosion of the Cold War Settlement 1060 iii. judging the national security state in economic tribunals 1063 A. Controlling for Abuse 1066 B. Substantive Review of Security Measures 1070 C. Procedural Review and the National Security State 1074 iv. rethinking institutional arrangements for security governance 1080 A. Leveraging Domestic Administrative Procedure to Enhance Security Governance 1081 B. Flexibility and the Return of the Political in Economic Disputes 1084 C. Internalizing the Costs of Security Measures through Dejudicialized Dispute Settlement 1090 D. Security Governance and the Centralization of International Economic Law 1093 conclusion 1096 the yale law journal 129 : 1020 2020 introductio n National security rhetoric is increasingly inﬁltrating global economic affairs. In the United States, the Trump Administration has embraced an expansive national security policy to justify aggressive economic measures abroad and discriminatory immigration restrictions at home.1 But the United States is hardly alone. In 2019, the World Trade Organization (W

FAQs

What problem does the article identify about national security policy and economic law?

National security policies increasingly threaten the trade and investment rules that govern economic flows. The article stresses that potential good-faith but novel security claims create a more significant and permanent risk to the system.

How does the article explain the expansion of national security policy’s impact?

It argues that twenty-first-century expansion undermines established models that separate security measures from ordinary economic regulation. As a result, the economic order becomes harder to keep distinct from national security governance.

What reforms does the article propose to address this challenge?

The article calls for a new model that reintegrates the economic order with the national security state. It identifies reforms that permit oversight of novel security claims while preserving governments’ flexibility to update security policies in response to new threats.

Sep 14, 2026

Uploaded by Alex Sinclair