This Article argues that the British government, by invoking national security as an unexplained justification for quashing a bribery investigation, violated the Anti-Bribery Convention. Under U.K. law, the important issue is how exercises of prosecutorial discretion are constrained by treaty obligations. In this case, failure to prosecute undermines the basic purpose of the OECD Convention, as agreed on by the treaty partners. This fact, we argue, should influence exercises of prosecutorial discretion.
The main thrust of our analysis, however, concerns the international law of national security. The Convention does not contain an explicit national security exception. Moreover, we argue that international law does not authorize states to read into treaties an implicit open-ended exception. Many treaties contain explicit exceptions, but most of these significantly constrain the exercise of such exceptions either substantively or procedurally, or both. Any effort to justify the British position must come to terms with the multitudinous and constrained character of explicit national security exceptions.
Date of Authorship for this Version
Susan Rose-Ackerman & Benjamin Billa, Treaties and National Security, 40 N.Y.U. J. Int'l L. & Pol. 437 (2008), reprinted in Yale Law School Faculty Scholarship Series, Paper 595.