Sovereignty, National Security and International Treaty Law The Standard of Review of International Courts and Tribunals with regard to 'Security Exceptions'

When a state binds itself under international law, it often reserves a right to take measures necessary to protect its national security. This security interest is reflected in special treaty clauses that allow states to derive from their treaty obligations if national security is concerned. Despite the long standing and established treaty practice with regard to these security clauses, their preconditions yet remain unclear. States tend to use them in a blanket way and only dependant on their subjective assessment. However, international courts and tribunals have begun to scrutinize these security exceptions. In doing so, they have faced questions as to the standard of review they may apply and the discretion of the States with regard to their security. The judgment on the legitimacy of state measures taken in the interest of national security may infringe the most fundamental prerogatives of a state, and thus its sovereignty. If the use of security exceptions is left to the discretion of the States though, this might seriously harm the binding character of a treaty. The area of conflict between compliance with international treaty regimes on the one hand and the legitimate interest of states in preserving their prerogatives in the field of national security on the other hand shall be subject of the present article. The article examines the case law of international courts and tribunals with regard to the standard of review for security exceptions in international treaties. It firstly lays out that two types of security exceptions have to be distinguished: Those allowing the states to take security measures as they consider necessary and those without such deferential wording. It then analyzes the jurisprudence of the International Court of Justice, of ICSID tribunals in the context of the Argentinean crisis, and of WTO panels with regard to the security exception in the GATT. Moreover, it compares the positions of these courts and tribunals to that of the European Court of Justice vis-à-vis the security exceptions of EU treaty law. Based on this analysis, a common standard of review for security exceptions in international treaties is proposed. It is argued that not even provisions containing an as it considers necessary-section are entirely self-judging but subject to review regarding the good faith of the State invoking the exception. With respect to provisions without as it considers necessary-language, these, it is submitted, can be reviewed in depth and not limited to good faith-obligations. However, the article will also argue for a certain margin of discretion for the States invoking such an exception.