The use and abuse of the national security exception

Some thinking and advocacy on the need to adhere to the rules of the multilateral trading system

The concept of national security, like almost everything else, has evolved over time. During the Cold War, it included the threat of conventional, biological and nuclear weapons being deployed against civilian and military targets. Countering this threat meant keeping standing armies in readiness, building underground fallout shelters, and developing extensive continuity of government (COG) plans for whatever survived after a nuclear exchange, writes Simon Lacey.

Today we still live under the shadow of nuclear annihilation, but we also live in the information age, meaning that the attack vectors which potentially threaten us have expanded to include what is referred to as “critical infrastructure”, encompassing everything from roads to railways, to ports, to the power grid, to the financial system and of course, the communications networks underpinning all of these.

And because such an expansive understanding of what constitutes a threat to our existence now prevails, politicians have not shied away from even some of the most extreme measures in an attempt to safeguard this broad notion of national security. One of the latest examples of this are the bans imposed by several European countries on Chinese suppliers such as Huawei, effectively preventing the global equipment vendor from participating in 5G rollouts.

Today, the stakes are admittedly higher than in earlier eras, with international commercial rivalries raging over who manufactures and sells the critical infrastructure upon which our societies depend. Be that as it may, this does not justify arbitrarily setting aside the legally binding general principles that have evolved over centuries and governed us for many decades. These general legal principles include proportionality, fundamental rights, legal certainty, legitimate expectations, non-discrimination and due process.

Government action or measures that do set aside one or more of these general legal principles should be considered an exception. Exceptions, by their very nature need to be narrowly formulated, limited in both scope and time to what is absolutely necessary, and have an adequately articulated and substantiated factual basis.

Take for example the first of these conditions. Those countries that have imposed restrictions against Huawei have done so by simply banning it from their 5G telecommunications infrastructure. A blanket ban is the very antithesis of a narrowly formulated measure. The United Kingdom, after an extensive, transparent, and evidence-based telecom infrastructure review carried out in 2019, proposed that Huawei be allowed to operate in the country’s 5G ecosystem, subject to a number of carefully prescribed limitations. This is more in keeping with the principle that exceptions to general legal principles must be narrowly formulated, but was subsequently abandoned by the Johnson government due to intense political pressure from the Trump administration.

The second criteria, namely that measures be limited in both scope and time to what is absolutely necessary has also been violated in the case of the various bans enacted and under consideration against Huawei. If something is necessary, then it is by definition also functionally capable of achieving its stated objective. However, cybersecurity experts are unanimous in conceding that measures based on purely flag of origin considerations are completely useless in countering cybersecurity threats. So, if the bans against Huawei are not capable of achieving their stated objective, it stands to reason that they cannot be necessary.

Finally, the third criteria for exceptionally setting aside general legal principles, namely that any restrictive measures have a suitably articulated and substantiated factual basis, is likewise sadly missing in the case of the bans against Huawei. Western governments and consumers have been told that the company represents a national security threat and that the reasons for this assessment remain classified. This argument may have carried some weight in decades past, but ever since Colin Powell unwittingly went before the United Nations General Council and presented a manufactured case falsely claiming that Iraq was building and stockpiling weapons of mass destruction, we are no longer in a position to accept any claims by our security and intelligence interests purely on the basis of good faith.

A number of bans against Chinese equipment vendors currently being implemented or contemplated by various European governments deviate significantly from the security guidance provided by the EU Commission in its “5G toolbox”. They also make the EU highly vulnerable to a legal challenge before the World Trade Organization, given the highly discriminatory and arbitrary nature of these bans.

They also set a dangerous precedent which could be applied in other sectors and technologies, just like we have seen the Trump administration focus its fire first on Huawei and then subsequently on apps like TikTok and WeChat, and most recently the civilian drone manufacturer DJI. The potential economic damage that could be wreaked by an ever-expanding policy of targeting Chinese technology companies for exclusion based on some poorly formulated and scarcely articulated notion of national security is daunting.

Because war is too important to leave to the generals, and because the concept of national security now encompasses everything that constitutes the foundations of our continued economic prosperity, we need to be very cautious in assessing the advice and recommendations emanating from the narrow and entrenched interests who constitute our national defence and security services. In the same way, we cannot abandon the general legal principles that have made our free and open societies what they are today.

About the author

Simon Lacey is Senior Lecturer in International Trade and the University of Adelaide in South Australia. He was previous Vice President Trade Facilitation and Market Access at Huawei Technologies in Shenzhen, China.

Originally published as an opinion piece in EUREPORTER on 21 December 2020.