Treaties and National Security
37 Pages Posted: 19 Jul 2007 Last revised: 24 Feb 2008
The OECD Anti-Bribery Convention charges States Parties with sanctioning overseas bribes paid by their firms. In late 2006 the British government, claiming an implicit national security exception, halted a bribery investigation directed at BAE Systems. This action raises the question of the nature of such exceptions in international law. Many treaties contain explicit national security exceptions. But can an implicit exception be read into all treaties? This article argues that it cannot. Customary international law does not contain a broad national security exception, and explicit national security exceptions take various forms tailored to the subject of the individual treaties. Thus, because explicit terms are not difficult to draft, if no explicit language exists, then a country that claims to be acting on grounds of national security is violating the treaty at issue, rather than exercising an exception that implicitly exists. Furthermore, even if one disagrees with that claim, most explicit national security exceptions are not open-ended and some include procedural limits. Constraints on even explicit exceptions ought to apply a fortiori to implicit exceptions. An implicit exception must be interpreted no more generously than clauses that have actually been incorporated into the language of treaties. Any other conclusion would lead to the anomalous result that the way to obtain a strong national security exception is not to mention the matter at all.
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