Dual-Use Items and the WTO: A Proposal for a Standard of Proof in the Evaluation under Security Exception Clause

This paper examines the interpretation and application of General Agreement on Tariffs and Trade (GATT) Article XXI(b)(ii) in the context of export controls on dual-use items, a topic of increasing importance as international export control regimes grapple with ambiguities in defining the scope of such measures. While export controls are legitimate when addressing genuine security threats, their exploitation for economic advantage undermines World Trade Organization (WTO) principles. By focusing on the underexplored GATT Article XXI(b)(ii), this study provides a foundation for assessing the legality of dual-use export controls and proposes standards of proof that clarify the level of evidence required to establish facts under the burden of proof. The paper advocates for a balanced approach that acknowledges the sensitivity of security exceptions while mitigating the risk of abuse. It further emphasizes the role of multilateralism in maintaining the integrity of international trade law amidst escalating geopolitical tensions.