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Blurring The Boundary Between Security And Protectionism: A Critical Assessment Of The Fragmentation Of The Asian Trading Order

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Brajesh Raj & Ayushi Upadhyay, LL.M. (International Law), Indian Institute of Technology Kharagpur, West Bengal, India


ABSTRACT


Trade liberalisation has long underpinned regional economic integration, and geopolitical rivalry is now testing it. States increasingly rely on export controls, tariffs, investment restrictions and supply-chain measures justified as economic security. The US–China rivalry has pushed these tools to the centre of Asian trade policy, while ASEAN states hedge between the two powers. The paper asks to what extent GATT Article XXI can accommodate legitimate economic-security measures without letting security justifications drive protectionist fragmentation, and what framework can reconcile economic resilience with regional integration in Asia. Using a doctrinal method and a bounded case study of the US–China rivalry, it argues that economic security should not serve as a blanket justification for protectionism. It proposes a four-factor test (nexus, necessity and proportionality, non-discrimination, and external review) drawing on WTO necessity analysis and on the CFIUS and EU investment-screening regimes. Applied to the case study, the test shows that some measures hold up and others do not. ASEAN's hedging depends on a more disciplined approach to Article XXI, and resilience and openness need not compete.


Keywords: Economic Security; Free Trade; Asian Trading Order; WTO; GATT Article XXI; Trade Fragmentation; Geopolitical Risks; Economic Resilience; Regional Economic Integration.



Indian Journal of Law and Legal Research

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Abbreviation: IJLLR

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ISSN: 2582-8878

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Website: www.ijllr.com

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Accessibility: Open Access

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License: Creative Commons 4.0

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Submit Manuscript: Click here

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All research articles published in The Indian Journal of Law and Legal Research are fully open access. i.e. immediately freely available to read, download and share. Articles are published under the terms of a Creative Commons license which permits use, distribution and reproduction in any medium, provided the original work is properly cited.

 

Disclaimer:

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The opinions expressed in this publication are those of the authors. They do not purport to reflect the opinions or views of the IJLLR or its members. The designations employed in this publication and the presentation of material therein do not imply the expression of any opinion whatsoever on the part of the IJLLR.

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