국가안보 예외의 사각(死角)지대- ‘정보제공 거부’ 조항의 의미와 문제점

National security exceptions clauses in treaties are receiving heightened attention recently as states increasingly refer to these provisions to deviate from otherwise existing treaty obligations. As disputes increase, jurisprudence on the national security exceptions is also being developed and accumulated. States look to national security exceptions with keen interest and new perception. Such a phenomenon is being observed in a variety of treaties. In the meantime, there is a particular provision contained in a national security exceptions clause which has been mostly sidelined and sometimes neglected in these discussions. This provision is what is called a ‘refusal to furnish information’ clause, contained in national security exceptions. It uses extensive languages without much qualifications or conditions. The level of discretion and leeway accorded to an invoking state is arguably much higher than other provisions in the same national security exceptions. As such, this provision can permit a state to refuse to provide any information to any entity in any proceeding. This means this provision could effectively nullify other obligations in the already controversial national security exceptions as well as in other ordinary provisions of a treaty. Notably, its invocation could even derail dispute settlement proceedings at international courts. Examination of the drafting history of this provision indicates that careful thoughts have not necessarily given to its introduction and wording. Nor has there been sufficient discussions so far to clarify and tame this provision. Robust attention to national security exceptions these days is now signaling that the “refusal to furnish information” provision will be invoked more actively, considering its usefulness to block any discussion relating to a treaty. Existing and future treaties need to revisit this provision to ensure it does not become a source of conflict or a carte blanche for a treaty violation.