WT/DS544/R/Suppl.1  
 
9 December 2022 
(22-9169) Page: 1/72 
  Original: English  
 
  
UNITED  STATES  – CERTAIN MEASURES ON STEEL AND ALUMINIUM 
PRODUCTS  
REPORT OF THE PANEL  
Appendices  
This supplement contains Appendices A and B to the Report of the Panel to be found in document 
WT/DS 544/R. 
 
_______________  
 
 
  WT/DS544/R/Suppl.1  
 
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  TABLE OF CONTENTS  
 
APPENDIX  A: MATERIALS SUBMITTED BY THE PARTIES ON URUGUAY ROUND 
NEGOTIATIONS OF THE A GREEMENT ON SAFEGUARDS  ................................ ....................  4 
1   INTRODUCTION  ................................ ................................ ................................ ..........  5 
2   ARGUMENTS AND MATERIALS SUBMITTED BY PARTIES  ................................ ..............  5 
2.1   June 1989 draft text  ................................ ................................ ................................ .... 5 
2.2   January 1990 draft text  ................................ ................................ ................................  5 
2.3   July 1990 draft text  ................................ ................................ ................................ ..... 5 
2.4   October 1990 draft text  ................................ ................................ ................................  6 
2.5   Draft Final Act Embodying the Results of the Uruguay Round (20  December  1991)  ..............  6 
2.6   Arguments by the parties  ................................ ................................ .............................  7 
3   ASSESSMENT BY THE PANEL  ................................ ................................ .......................  8 
APPENDIX  B: MATERIALS SUBMITTED BY THE PARTIES ON THE INTERPRETATION  
OF ARTICLE  XXI OF THE GATT  1994  ................................ ................................ ...............  11 
1   INTRODUCTION  ................................ ................................ ................................ ........  15 
2   NEGOTIATIONS OF THE ITO CHARTER AND THE GATT  1947  ................................ ...... 15 
2.1   Arguments and materials submitted by the parties  ................................ ......................... 15 
2.1.1    October 1946 proposal  ................................ ................................ ............................. 16 
2.1.2    March 1947 draft text  ................................ ................................ .............................. 16 
2.1.3    May 1947 proposal  ................................ ................................ ................................ ..17 
2.1.4    4 July 1947 proposal  ................................ ................................ ................................ 18 
2.1.5    24 July 1947 meeting  ................................ ................................ ............................... 19 
2.1.6    31 July 1947 and 19  August  1947 Draft Texts  ................................ ............................. 21 
2.1.7    "An Informal Summary of the ITO Charter" (21  November  1947)  ................................ ..22 
2.2   Assessment by the Panel  ................................ ................................ ............................. 23 
3   NEGOTIATIONS OF THE ITO CHARTER IN 1948  ................................ .........................  27 
3.1   Arguments and materials submitted by the parties  ................................ ......................... 27 
3.1.1    9 January  1948 – Report of Working Party of Sub -Committee G of Committee VI on 
Chapter VIII (Settlement of Differences – Interpretation) ................................ ........................ 27 
3.1.2    13 January  1948 – Meeting of Sixth Committee: Organization, Sub -Committee on  
Chapter VIII (Settlement of Differences – Interpretation) ................................ ........................ 28 
3.1.3    16 January  1948 – Amendment to Article  94 proposed by the UK Delegation  .................. 29 
3.1.4    17 January  1948 – Meeting of Sub -Committee I (Article  94), Sixth Committee: 
Organization  ................................ ................................ ................................ ...................... 30 
3.1.5    28 February  1948 – Meeting of Sub -Committee I (Article  94), Sixth Committee: 
Organization  ................................ ................................ ................................ ...................... 31 
3.2   Assessment by the Panel  ................................ ................................ ............................. 32 
4   INTERNAL DOCUMENTS OF THE US DELEGATION AT THE ITO/GATT  1947 
NEGOTIATIONS  ................................ ................................ ................................ ..............  34 
4.1   Arguments and materials submitted by the parties  ................................ ......................... 34 
4.1.1    US Department of State, Memorandum of Conversation on "Security Exceptions to 
proposed ITO Charter" (17  June 1946)  ................................ ................................ ................. 35 WT/DS544/R/Suppl.1  
 
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  4.1.2    US Delegation, Economic Disarmament (Draft) (1946)  ................................ ................. 35 
4.1.3    US Delegation, Letter from Mr Coppock to Mr Wilcox (3  July 1946)  ................................ 36 
4.1.4    US Delegation,  Minutes of the Delegation Meeting (2  July 1947)  ................................ ....36 
4.1.5    US Delegation, Minutes of the Delegation Meeting (4  July 1947)  ................................ ....38 
4.1.6    US Delegation, Memorandum of Mr Rubin (14  July 1947) ................................ .............. 40 
4.2   Assessment by the Panel  ................................ ................................ ............................. 41 
5   DECISION OF THE CONTRACTING PARTIES IN US  EXPORT RESTRICTIONS 
(CZECHOSLOVAKIA)  (1949)  ................................ ................................ ...........................  44 
5.1   Arguments and materials submitted by the parties  ................................ ......................... 44 
5.1.1    Request of Czechoslovakia for a decision under Article  XXIII of the GATT 1947  ............... 45 
5.1.2    Statements by Czechoslovakia and the United  States  ................................ ................... 46 
5.1.3    Debate and Decision of the CONTRACTING PARTIES  ................................ .................... 46 
5.2   Assessment by the Panel  ................................ ................................ ............................. 49 
6   DECISION OF THE GATT  CONTRACTING PARTIES CONCERNING ARTICLE  XXI OF  
THE GATT  1947 (1982)  ................................ ................................ ................................ .. 51 
6.1   Arguments and materials submitted by the parties  ................................ ......................... 51 
6.1.1    GATT CONTRACTING PARTIES, Decision Concerning Article  XXI of the General  
Agreement (30 November 1982)  ................................ ................................ .......................... 52 
6.2   Assessment by the Panel  ................................ ................................ ............................. 53 
7   VIEWS OF THE GATT CONTRACTING PARTIES IN CONNECTION WITH PRIOR 
INVOCATIONS OF ARTICLE  XXI OF THE GATT  1947  ................................ .......................  54 
7.1   Arguments and materials submitted by the parties  ................................ ......................... 54 
7.1.1    Ghana's reference to measures taken pursuant to Article  XXI in the context of the  
accession of Portugal to the GATT  ................................ ................................ ........................ 54 
7.1.2    The United Arab Republic's reference to Article  XXI in the context of its accession to  
the GATT  ................................ ................................ ................................ .......................... 54 
7.1.3    Invocation of Article  XXI of the GATT  1947 by the European  Communities, Canada,  
and Australia in relation to certain measures affecting Argentina ................................ .............. 55 
7.1.4    Invocation of Article  XXI of the GATT  1947 by the United  States in relation to certain 
measures affecting Nicaragua  ................................ ................................ .............................. 59 
7.2   Assessment by the Panel  ................................ ................................ ............................. 62 
8   URUGUAY ROUND NEGOTIATIONS  ................................ ................................ ............  63 
8.1   Arguments and materials submitted by the parties  ................................ ......................... 63 
8.1.1    Proposals regarding Article  XXI at the Negotiating Group on GATT Articles  ...................... 63 
8.1.2    The drafting of security exceptions in the GATS and in the TRIPS  Agreement  .................. 66 
8.1.3    Negotiations of the DSU  ................................ ................................ ........................... 70 
8.1.4    The formulation of security exceptions in international agreements concluded  
after 1947  ................................ ................................ ................................ ......................... 70 
8.2   Assessment by the Panel  ................................ ................................ ............................. 71 
 
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APPENDIX  A: MATERIALS SUBMITTED BY THE PARTIES ON URUGUAY ROUND 
NEGOTIATIONS OF THE AGREEMENT ON SAFEGUARDS  
EXHIBITS REFERRED TO IN APPENDIX A  
Panel Exhibit  Short Title  Title 
USA-190 Draft Final Act Embodying 
the Results of the Uruguay 
Round 
(20 December  1991)  Trade Negotiations Committee, Draft Final Act Embodying 
The Results of the Uruguay Round of Multilateral Trade 
Negotiations (20 December 1991), MTN.TNC/W/FA  
USA-215 June 1989 draft text  Negotiating Group on Safeguards, Draft Text by the 
Chairman (27  June 1989), MTN.GNG/NG9/W/25  
USA-216 January 1990 draft text  Negotiating Group on Safeguards, Draft Text by the 
Chairman (15  January  1990), MTN.GNG/NG9/W/25/Rev.1  
USA-217 July 1990 draft text  Negotiating Group on Safeguards, Chairman's Report on 
Status of Work in the Negotiating Group (13  July 1990), 
MTN.GNG/NG9/W/25/Rev.2  
USA-220 October 1990 draft text  Negotiating Group on Safeguards, Draft Text of an 
Agreement (31  October  1990), MTN.GNG/NG9/W/25/Rev.3  
 
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  1  INTRODUCTION  
1.1.  The parties in this dispute have referred to various materials from the Uruguay Round of 
negotiations to support their interpretations of Article  11.1(c) of the Agreement on Safeguards. The 
Panel recalls its conclusions in section 7.7.2  of the Panel  Report  based on the interp retation of 
Article  11.1(c) of the Agreement on Safeguards according to customary rules of interpretation of 
public international law, including Articles 31 and 33 of the Vienna  Convention . The Panel does not 
consider that its interpretive conclusions rega rding Article  11.1(c) of the Agreement on Safeguards 
leave the meaning of that provision ambiguous or obscure, nor does the Panel find that they lead to 
a result which is manifestly absurd or unreasonable. The Panel also notes the parties' agreement 
that r ecourse to supplementary means of interpretation under Article  32 of the Vienna  Convention  
only serves to confirm the meaning of Article  11.1(c) of the Agreement on Safeguards as determined 
through the application of Article  31 of the Vienna  Convention .1  
1.2.  The Panel will therefore examine the documents submitted as the negotiating history of 
Article  11.1(c) of the Agreement on Safeguards to confirm the meaning of the terms of that 
provision. The Panel will begin by providing an overview of the materials sub mitted by the parties 
as the negotiating history of Article  11.1(c) and their arguments in relation to these materials, 
followed by an assessment of the contents of these materials in relation to the interpretive issues 
raised in this dispute.  
2  ARGUMENTS A ND MATERIALS SUBMITTED BY PARTIES  
2.1  June 1989 draft text 
2.1.  In the context of the multilateral trade negotiations of the Uruguay Round, the Chairperson of 
the Negotiating Group on Safeguards circulated several draft texts for an agreement on safeguards. 
A draft text issued on 27  June 1989 provided in relevant part:  
4. A contracting party [or a customs union] may apply safeguard measures  to a product 
being imported into its territory, only in a situation in  which other GATT provisions do 
not p rovide specific remedies (e.g.  Articles VI, XVI or XXVIII), and on the conditions 
that: …2 
2.2  January 1990 draft text 
2.2.  A revised draft, circulated on 15  January  1990, removed the references to "Articles VI, XVI 
or XXVIII" in paragraph 4 of the June 1989 draft text as follows:  
4. A contracting party [or a customs union] may apply a safeguard measure to a product 
being imported into its territory only in a situation in which other provisions of the 
General Agreement d o not provide specific remedies and on the conditions that: …3 
2.3  July 1990 draft text 
2.3.  Negotiations continued on the basis of draft texts by the Chairperson, who issued a new draft 
on 13  July 1990 "indicating the general trend of discussion of the Negotiatin g Group".4 Unlike the 
draft texts of June 1989 and January 1990, this draft did not stipulate that safeguard measures 
could only be applied in the absence of "specific remedies" under other GATT provisions. Instead, 
 
1 See e.g. United  States ' responses to Panel question No.  97; China's responses to Panel question 
No. 97.  
2 June 1989 draft text, ( Exhibit USA -215), p. 1. The "conditions" under this draft provision were: (a) "an 
unforeseen, sharp and substantial increase in the quantity of such product being imported"; (b) a 
determination by "competent national authorities" that "such increase is causing serious injury to domestic 
producers of like or directly competitive products"; and (c) "the measures are applied to products from all 
sources".  
3 January 1990 draft text, ( Exhibi t USA -216), p. 1. This draft included revised wording of the 
"conditions" regarding the increase of imports and the determination by competent authorities of serious injury 
caused to domestic producers, while moving the provision on application to products  from all sources to 
another paragraph.  
4 July 1990 draft text, ( Exhibit USA -217), p. 1.  WT/DS544/R/Suppl.1  
 
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  Section I of this draft set out certain  "General" provisions in two paragraphs, where paragraph 1 
defined what "a safeguard measure shall be understood to mean"5 and paragraph 2 stated:  
2. The provisions of paragraph 1 above do not prejudice the rights and  obligations of 
contracting parties re garding trade -restrictive measures  taken in conformity with 
specific provisions  of the General Agreement other  than Article  XIX, protocols, and 
agreements and arrangements negotiated  under the auspices of GATT .6 
2.4  October 1990 draft text 
2.4.  A revised draft text, accepted as "a working paper for the very final phase of the negotiations" 
of an agreement on safeguards, was circulated on 31  October  1990 to represent the level of 
agreement reached in the Negotiating Group on Safeguards at that stage.7 The "General" section of 
this draft contained a single paragraph, stating that "[t]his agreement establishes rules for the 
application of safeguard measures".8 In Section VII titled "Prohibition and Elimination of Certain 
Measures", the draft contained the fo llowing bracketed  text: 
24. No trade -restrictive measure shall be sought or taken by a contracting  party unless 
it conforms with the provisions of Article  XIX as interpreted  by the provisions of this 
agreement, or is consistent with other  provisions  of the  General Agreement, or protocols 
and agreements or arrangements  concluded within the framework of the General 
Agreement. These include  actions taken by a single contracting party as well as actions 
under  agreements, arrangements and understandings entered into by two or more  
contracting parties. Any such measure in effect at the time of entry into  force of this 
agreement shall either be brought into conformity with the  provisions of Article  XIX and 
this agreement or phased out in accordance  with paragraph 2 5 below.9 
2.5  Draft Final Act Embodying the Results of the Uruguay Round (20  December  1991)  
2.5.  On 20  December  1991, the Chairperson of the Trade Negotiations Committee tabled the "Draft 
Final Act" embodying the results of the Uruguay Round of negotiations, inclu ding a  draft agreement 
on safeguards, with the understanding that this " offer[ed] a concrete and comprehensive 
representation of the  final global package of the results of the Uruguay Round ".10 Section VI of the 
draft agreement on safeguards addressed "Pro hibition and Elimination of Certain Measures" and 
divided paragraph 24 of the October 1990 draft  text into three parts as follows:  
22. (a) A contracting party shall not take or seek any emergency action on imports of 
particular products as set forth in Article  XIX unless such action conforms with the 
provisions of Article  XIX of the General Agreement applied in accordance with this 
agreement.  
(b) Furthermore, a contracting party shall not seek, take or maintain any voluntary 
export restraints, orderly ma rketing arrangements or any other similar measures on the 
export or the import side.[1],[2] These include actions taken by a single contracting party 
as well as actions under agreements, arrangements and understandings entered into 
by two or more contracti ng parties. Any such measure in effect at the time of entry into 
force of this agreement shall be brought into conformity with this provision or phased 
out, in accordance with paragraph 23 below.  
(c) Measures sought, taken or maintained by a contracting pa rty pursuant to  other 
provisions of the General Agreement, or protocols and agreements or arrangements 
 
5 July 1990 draft text, ( Exhibit USA -217), p. 3.  
6 July 1990 draft text, ( Exhibit USA -217), p. 3.  
7 October 1990 draft text, ( Exhibit USA -220), p. 1.  
8 October 1990  draft text, ( Exhibit USA -220), p. 3.  
9 October 1990 draft text, ( Exhibit USA -220), p. 9.  
10 Draft Final Act Embodying the Results of the Uruguay Round (20  December  1991), ( Exhibit USA -190). WT/DS544/R/Suppl.1  
 
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  concluded within the framework of the General Agreement are not included in the scope 
of this agreement.11 
1 An import quota applied as a safeguard measu re in conformity with the relevant provisions of 
the General Agreement may, by mutual agreement, be administered by the exporting contracting 
party.  
2 Examples of similar measures include export moderation, export -price or import -price 
monitoring systems,  export or import surveillance, compulsory import cartels and discretionary 
export or import licensing schemes, any of which afford protection.  
 
2.6  Arguments by the parties  
2.6.  According to the United  States , while early draft texts of the Agreement on Safeguards would 
have limited the right to apply a safeguard measure to situations in which certain other provisions 
of the GATT  1994 were not available12, negotiators subsequently abandoned this approach to make 
clear that the proposed agreement would not  prejudice a Member's ability to take action pursuant 
to GATT provisions other than Article  XIX.13  
2.7.  In this regard, the United  States  refers to the October 1990 draft text and the use of the word 
"or" in paragraph 24 of that draft. For the United  States , this confirms that Members could seek or 
take trade -restrictive measures that were "either  in conformity with  Article  XIX or consistent with 
other provisions of the General Agreement (including Article  XXI)" and that " the availability of 
Article  XIX as a release from obligations does not constrain a Member 's ability to take action pursuant 
to other provisions of the GATT  1994".14  
2.8.  The United  States  also advances several arguments in relation to the Draft Final Act embodying 
the results of the Uruguay Round . The United  States  notes that the text that would become 
Article  11.1(c) was revised in this draft to explicitly refer to the scope of "this agreement" and was 
moved so that it appeared after the text that would become Article  11.1(b) .15 The United  States  
considers these two changes to indicate that the entire Agreement on Safeguards, including 
Article  11.1(b),  is subject to Article  11.1(c) .16 The United  States  further considers relevant that the 
language in the Draft Final Act stating that measures sought , taken, or maintained pursuant to other 
GATT provisions "are not included in the scope of" the proposed agreement on safeguards was 
replaced in the final text of Article  11.1(c) with a "more definite statement" that the Agreement on 
Safeguards "does not a pply" to such measures. The United  States  maintains that in this way, the 
final text makes even clearer that a Member's ability to seek, take, or maintain safeguard measures 
does not constrain a Member's ability to take such action pursuant to other provis ions of the 
GATT  1994, such as Article  XXI.17 
2.9.  Regarding the terms "pursuant to" in Article  11.1(c), the United  States  notes that the Draft 
Final Act changed the reference s in the October 1990 draft text to "measures … consistent with other 
provisions of the General Agreement" and in the July 1990 draft to measures "taken in conformity 
with specific provisions of the General Agreement". For the United  States , by referring instead to 
measures sought, taken, or maintained "pursuant to" other GATT provisions , the Draft Final Act 
underscores that the Agreement on Safeguards does not apply to measures that a Member "has 
tried to do, succeeded in doing or caused to continue in accordance with provisions of the GATT  1994 
other than Article  XIX".18 
 
11 Draft Final Act Embodying the Results of the Uruguay Round (20 December  1991), ( Exhibit USA -190), 
pp. M.6 -M.7.  
12 United  States ' response to Panel question No.  94. See also United  States ' second written submission, 
paras.  213-214.  
13 United  States ' second written submission, paras.  215-216 (referring to July 1990 draft text, ( Exhibit 
USA-217)). 
14 United  States ' second written submission, para.  218. (emphasis original)  
15 United  States ' response to Panel question No.  94 (further noting that in earlier drafts of the 
Agreement on Safeguards, the provision that would be come Article  11.1(b) was placed after the text that 
would become Article  11.1(c) in the final Agreement).  
16 United  States ' response to Panel question No.  94 (also arguing that by placing the reference to "This 
Agreement" at the beginning of Article  11.1(c)  in the Agreement on Safeguards, the final text of this 
Agreement makes even clearer that the text of Article  11.1(c) applies to the entire Agreement on Safeguards).  
17 United  States ' second written submission, paras.  221-222. 
18 United  States ' response to Panel question No.  97. WT/DS544/R/Suppl.1  
 
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  2.10.   China does not perceive  any basis for the Panel to have recourse to supplementary means for 
the interpretation of Article  11.1(c), arguing that " the general rule of interpretation under Article  31 
does not leave the meaning of the relevant provisions ambiguo us or obscure, or lead to a result 
which is manifestly absurd or unreasonable".  China further contends that nothing in the negotiating 
history of what ultimately became the "pursuant to" language in Article  11.1(c) of the Agreement 
on Safeguards suggests t hat this language was meant to give Members the unilateral ability to 
remove from the scope of that agreement a measure that is "objectively a safeguard measure".  
According to China, the drafting history of Article  11.1(c) only reflects the drafters' recog nition that 
there are a variety of trade -restrictive measures that a Member may take under the GATT  1994, in 
derogation of obligations that otherwise would apply, and that the Agreement on Safeguards would 
not apply to measures other than those that Member s are required to take in accordance with 
Article  XIX and the Agreement on Safeguards .19  
3  ASSESSMENT BY THE PANEL  
3.1.  Based on the parties' arguments and the relevant interpretive issues in this dispute, the Panel 
will begin by reviewing the evolution of the t ext that became Article  11.1(c) of the Agreement on 
Safeguards and its relation to the other draft provisions of the Agreement on Safeguards. The Panel 
will then review the language used in various draft texts of the Agreement on Safeguards 
corresponding t o the terms "pursuant to" and "other than" in the final text of Article  11.1(c) of that 
agreement. Finally, the Panel will make some concluding observations on the parties' arguments 
concerning other paragraphs of the draft texts considered in this Appendi x as well as additional 
materials submitted as the negotiating history of Article  XIX of the GATT  1994 and the Agreement 
on Safeguards.  
3.2.  Early draft texts for an agreement on safeguards did not contain explicit references to the 
inapplicability of the propo sed agreement to certain measures. Nevertheless, negotiators 
acknowledged the  rights and obligations of contracting parties provided in other GATT provisions. In 
this regard, the June 1989 and the January 1990 draft texts recogni zed certain "specific remedies " 
provided in "other provisions of the General Agreement" .20 Notably,  the July 1990 draft stipulated 
that the provision of that draft text on wh at "a safeguard measure shall be understood to mean" 
would " not prejudice  the rights and  obligations of contracting parties regarding trade -restrictive 
measures  taken in conformity with specific provisions of the General Agreement other  than 
Article  XIX".21 These documents indicate that the proposed agreement on safeguards was intended 
to preserve "specific remedies" or "trade -restrictive measures" available to Members under  other 
GATT provisions.  
3.3.  Subsequent draft texts similarly reflect the intention that  the rights of the contracting parties  
under other GATT provisions  be preserved  as part of the establishment of safeguard disciplines. In 
the draft text of October 1990, the corresponding provision to Article  11.1(c) of the Agreement on 
Safeguards was fram ed as a prohibition of " trade -restrictive measure [s]" with two exceptions: 
measures that " conform [] with the provisions of Article  XIX as interpreted  by the provisions of this 
agreement  [on safeguards]" or measures that were " consistent with other provisio ns of the General 
Agreement ".22 In this manner, the draft text of October 1990 recogni zed that contracting parties 
were permitted to seek or take trade -restrictive measures consistent with GATT provisions other 
than Article  XIX, notwithstanding the discipl ines of an agreement on safeguards. The  Draft Final Act 
embodying the result of the Uruguay Round of negotiations  reaffirmed this by explicitly setting out 
the scope of the proposed agreement on safeguards. In addition to noting that the proposed 
agreement "establishes rules for the application of safeguard measures", the Draft Final Act provided 
that measures sought , taken or maintained pursuant to "other provisions of the General Agreement" 
were " not included in the scope of [that]  agreement ".23  
3.4.  The Panel finds this negotiating history to confirm that the Agreement on Safeguards  does not 
preclude measures " pursuant  to provisions of GATT 1994 other than Article XIX " and Article  11.1(c) 
 
19 China's response to Panel question No.  97.  
20 January 1990 draft text, ( Exhibit USA -216), p. 1. See also June 1989 draft text, ( Exhibit USA -215), p. 
1 (referring to "specific remedies" provided in "other GATT provisions").  
21 July 1 990 draft text, ( Exhibit USA -217), p. 3. (emphasis added)  
22 October 1990 draft text, ( Exhibit USA -220), p. 9.  
23 Draft Final Act Embodying the Results of the Uruguay Round (20  December  1991), ( Exhibit USA -190), 
p. M.7. (emphasis added)  WT/DS544/R/Suppl.1  
 
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  removes such measures from the scope of application  of the Agreement .24 The Panel further notes 
that none of the draft texts  discussed above contained  provisions limiting  or otherwise subordinating 
the provision that became Article  11.1(c) to other parts of the draft texts that became Articles 
11.1(a) and 11.1(b) of the Agreement on Safeguards . Accordingly, the negotiating history of the 
Agreement on Safeguards supports  the Panel's inte rpretation that Article  11.1(c) governs the 
inapplicability of the Agreement on Safeguards as a whole, including the rules specified in 
Article  11.1(a) and the prohibition under Article  11.1(b).25 
3.5.  Regarding the terms "pursuant to" in Article  11.1(c) of the  Agreement on Safeguards, the Panel 
observes that early drafts of the Agreement on Safeguards contained references to measures that 
were "taken in conformity with" provisions of the GATT  1994 other than Article  XIX and measures 
that were "consistent with" such other provisions. However, these references were not retained in 
subsequent draft texts. In particular, in the Draft Final Act  embodying the results of the Uruguay 
Round, negotiators agreed to exclude measures that were " pursuant to  other provisions o f the 
General Agreement" from the scope of the proposed agreement on safeguards.26 The fact that 
negotiators deleted draft language requiring conformity or consistency from the provision in the 
Draft Final Act corresponding to Article  11.1(c) supports the Panel's conclusion that the terms 
"pursuant to" in Article  11.1(c) do not denote a  standard of consistency with provisions of the 
GATT  1994 other than Article  XIX. 
3.6.  The evolution of the provision that became Article  11.1(a) of the Agreement on Safeguards 
confirms this understanding. In the draft text of October 1990, the corresponding provision referred 
to trade -restrictive measures that " conform [] with the provisions of Article XIX as interpreted  by the 
provisions of this agreement ".27 This explicit reference to conformity was retained in the Draft Final 
Act of the Urugua y Round negotiations, which precluded "emergency action on imports of particular 
products as set forth in Article  XIX unless such action conforms with  the provisions of Article  XIX of 
the General Agreement applied in accordance  with this agreement".28 Thus, negotiators retained 
terms from the early draft texts of Article  11.1(a) expressing a requirement of consistency or 
conformity in the Draft Final Act of the Uruguay Round.29 By contrast, similar terms from the early 
draft texts of Article  11.1(c) were de leted and replaced with the phrase "pursuant to" in the Draft 
Final Act of the Uruguay Round. This contrast provides further support for the Panel's conclusions 
regarding the meaning of "pursuant to" in Article  11.1(c).  
3.7.  Regarding the terms "other than" in  Article  11.1(c), the Panel notes that the draft texts 
discussed above use the formulations " other GATT provisions "30, "other provisions of the General 
Agreement"31, and "specific provisions of the General Agreement other than Article  XIX".32 The Panel 
 
24 The parties to this dispute have also advanced arguments relating to communications from certain 
countries during the Uruguay Round of negotiations regarding the proposed agreement on safeguards . (See 
United  States ' response to Panel question No.  81; clos ing statement at the second meeting of the Panel, 
para. 42). The Panel observes that these communications aim to set out the views of certain countries on the 
scope of issues that should be discussed in the Negotiating Group on Safeguards. The Panel also n otes that 
these communications do not indicate a shared understanding by all negotiators on the scope of the proposed 
agreement on safeguards or the meaning of its terms. The Panel therefore does not consider it necessary to 
further examine the content of these communications to confirm its interpretation of the terms of 
Article  11.1(c).  
25 The Panel notes that the placement of the various draft texts of Article  11.1(c) changed in the course 
of negotiations. The Panel does not consider the placement of thes e draft provisions in itself to be 
determinative of the function of Article  11.1(c) or its relation to draft texts of Articles 11.1(a) and 11.1(b).  
26 Draft Final Act Embodying the Results of the Uruguay Round (20  December  1991), ( Exhibit USA -190), 
p. M.7 (emphasis added).  
27 October 1990 draft text, ( Exhibit USA -220), p. 9.  
28 Draft Final Act Embodying the Results of the Uruguay Round (20  December  1991), ( Exhibit USA -190), 
p. M.6. (emphasis added)  
29 The Panel also notes the requirement in early draft texts  to bring certain measures in effect at the 
time of entry into force of the proposed agreement on safeguards into "conformity" with the provisions of 
Article  XIX of the GATT and that agreement. The wording of this requirement was retained in paragraph 22(b ) 
of the Draft Final Act, which later became Article  11.1(b) of the Agreement on Safeguards. (See October 1990 
draft text, ( Exhibit USA -220), p. 9; Draft Final Act Embodying the Results of the Uruguay Round 
(20 December  1991), ( Exhibit USA -190), p. M.7).  
30 June 1989 draft text, ( Exhibit USA -215), p. 1. 
31 January 1990 draft text, ( Exhibit USA -216), p. 1; October 1990 draft text, ( Exhibit USA -220), p. 9; 
and Draft Final Act Embodying the Results of the Uruguay Round (20  December  1991), ( Exhibit USA-190), p. 
M.7. 
32 July 1990 draft text, ( Exhibit USA -217), p. 3.  WT/DS544/R/Suppl.1  
 
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  does not find these various formulations to provide additional clarity as to the ordinary meaning of 
the terms "other than" in the context of Article  11.1(c). Nor does the Panel find these draft texts to 
indicate an intention to impose a qualification with re spect to being "other than Article  XIX" in 
Article  11.1(c). The Panel notes that early draft texts of the Agreement on Safeguards contained 
references to "specific remedies" in "other GATT provisions"33 and "specific provisions of the General 
Agreement oth er than Article  XIX".34 The Panel does not consider that the word "specific" in these 
draft texts in itself indicates  an additional requirement or limitation of being exclusively pursuant to 
another GATT provision , and in any event, this word was removed f rom subsequent draft texts of 
Article  11.1(c) of the Agreement on Safeguards.35 Accordingly, the analysis of these draft texts  
confirms, or at least does not undermine, the Panel's conclusion that the terms "other than" in 
Article  11.1(c)  do not impose an additional requirement or limitation of being exclusively pursuant 
to another provision . 
3.8.  In their submissions on the negotiating history of Article  XIX of the GATT  1994 and the 
Agreement on Safeguards, the parties also discuss other paragr aphs of the draft texts considered in 
this Appendix  and certain additional materials.36 The Panel notes that the parties' arguments in this 
regard do not relate to Article  11.1(c) of the Agreement on Safeguards. Rather, the parties discuss 
these materials in relation to their arguments on the "condition precedent" for the right to take 
action under Article  XIX of the GATT  1994, "invocation" of Article  XIX of the GATT  1994, and 
measures within the scope of Article  11.1(b) of the Agreement on Safeguards. As d iscussed in 
section 7.7.2  of the Panel  Report , the Panel focuses its assessment on the terms of Article  11.1(c) 
of the Agreement on Safeguards and, in particular, the meaning of the terms "pursuant to" and 
"other than" in that provision. Accordingly, the P anel does not find it necessary for the purposes of 
this dispute to address the parties' arguments  in relation to other paragraphs of the draft texts 
considered in this Appendix and the additional materials submitted as the negotiating history of 
Article  XIX of the GATT  1994 and the Agreement on Safeguards.  
3.9.  Based on the foregoing, the Panel finds that the negotiating history of Article  11.1(c) of the 
Agreement on Safeguards confirms the Panel's interpretation of that provision according to Articles 
31 and 3 3 of the Vienna  Convention .  
_______________  
 
 
33 June 1989 draft text, ( Exhibit USA -215), p. 1. See also January 1990 draft text, ( Exhibit USA -216), 
p. 1. 
34 July 1990 draft text, ( Exhibit USA -217), p. 3.  
35 October 1990 draft text, ( Exhibit USA -220), p. 9; Draft Final Act Embodying the Results of the 
Uruguay Round (20  December  1991), ( Exhibit USA -190), p. M.7.  
36 See United  States ' response to Panel question Nos. 18, 19 and 97; second written submission, 
sections IV.A.5 and IV.B.4.a; and o pening statement at the second meeting of the Panel, para.  23. See also 
China's response to Panel question No.  97. WT/DS544/R/Suppl.1  
 
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  APPENDIX  B: MATERIALS SUBMITTED BY THE PARTIES ON THE INTERPRETATION OF  
ARTICLE  XXI OF THE GATT  1994  
EXHIBITS REFERRED TO IN APPENDIX B  
Exhibit 
Number  Short title (if applicable)  Long title  
USA-24 -- GATT CONTRACTING PARTIES, Third Session, Agenda 
(Revised 8  April 1949), GATT/CP.3/2/Rev.2  
USA-25 Statement by the Head of the 
Czechoslovak Delegation  GATT CONTRACTING PARTIES, Third Session, Statement by 
the Head of the Czechoslovak Delegation (30  May 1949), 
GATT/CP.3/33  
USA-26 -- GATT CONTRACTING PARTIES, Third  Session, Reply by the 
Vice Chairman of the US Delegation (2  June 1949), 
GATT/CP.3/38  
USA-27 Summary of the meeting of the 
GATT CONTRACTING PARTIES 
(8 June 1949)  GATT CONTRACTING PARTIES, Third Session, Summary of 
the twenty -second meeting (8  June 1949), 
GATT/CP.3/SR.22  
USA-28 -- GATT, Basic Instruments and Selected Documents, Volume 
II (Decisions, Declarations, Resolutions, Rulings and 
Reports), May 1952  
USA-31 Report of the First Session of 
the Preparatory Committee  United Nations Conference on Trade and Development, 
Report of the First Session of the Preparatory Committee 
(31 October  1946), E/PC/T/33  
USA-32 -- United Nations Economic and Social Council, Preparatory 
Committee of the International Conference on Trade and 
Employment, Committee II,  Technical Subcommittee, 
Second meeting (21  October  1946), E/PC/T/C.II/W.5  
USA-33 Report of the Drafting 
Committee of the Preparatory 
Committee  United Nations Economic and Social Council, Report of the 
Drafting Committee of the Preparatory Committee of th e 
United Nations Conference on Trade and Employment 
(5 March  1947), E/PC/T/34  
USA-34 May 1947 Proposal by the US 
Delegation  United Nations Economic and Social Council, Second Session 
of the Preparatory Committee of the United Nations 
Conference on Trade and Employment, Proposal by the US 
Delegation (6  May 1947), E/PC/T/W/23  
USA-35 -- United Nations Economic and Social Council, Second Session 
of the Preparatory Committee of the United Nations 
Conference on Trade and Employment, Proposal by the US 
Delegation (4  July 1947), E/PC/T/W/236  
USA-36 -- United Nations Economic and Social Council, Second Session 
of the Preparatory Committee of the United Nations 
Conference on Trade and Employment, Report of the 
Committee on Chapters I, II and VIII (31  July 1947), 
E/PC/T/139  
USA-37 Report of the Second Session of 
the Preparatory Committee  United Nations Economic and Social Council, Report of the 
Second Session of the Preparatory Committee of the United 
Nations Conference on Trade and Employment 
(19 August  1947), E/PC/T/180  
USA-38 Draft General Agreement on 
Tariffs and Trade  United Nations Economic and Social Council, Second Session 
of the Preparatory Committee of the United Nations 
Conference on Trade and Employment, (Draft) General 
Agreement on Tariffs and Trade (30  August  1947), 
E/PC/T/189  
USA-39 An Informal Summary of the 
ITO Charter  United Nations Conference on Trade and Employment, An 
Informal Summary of the ITO Charter (21  November  1947), 
E/CONF.2/INF.8  
USA-41 Report of the 24  July 1947 
Meeting  United Nations Economic and Social Council, Second Session 
of the Preparatory Committee of the United Nations 
Conference on Trade and Employment, Report of the Thirty -
Third Meeting of Commission A (24  July 1947), 
E/PC/T/A/PV/33  
USA-42 Report of the Workin g Party of 
Sub-Committee G of Committee 
VI (Organization) on Chapter 
VIII United Nations Conference on Trade and Employment, 
Report of the Working Party of Sub -Committee G of 
Committee VI (Organization) on Chapter VIII 
(9 January  1948), E/CONF.2/C.6/W.30  WT/DS544/R/Suppl.1  
 
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  Exhibit 
Number  Short title (if applicable)  Long title  
USA-43 Third Meeting of the Sub -
Committee on Chapter VIII 
(Settlement of Differences – 
Interpretation) of Committee VI 
(Organization)  United Nations Conference on Trade and Employment, 
Summary Record of the Third Meeting of the Sub -
Committee on Chapter VII I (Settlement of Differences – 
Interpretation) of Committee VI (Organization) 
(13 January  1948), E/CONF.2/C.6/W.41  
USA-44 Amendment to Article  94 
proposed by the UK Delegation  United Nations Conference on Trade and Employment, Sub -
Committee I of Committee VI (Organization), Amendment 
to Article  94 proposed by the UK Delegation 
(16 January  1948), E/CONF.2/C.6/W.48  
USA-45 United Nations Conference on 
Trade and Employment, Final 
Act and Related Documents  United Nations Conference on Trade and Employ ment, Final 
Act and Related Documents (April 1948)  
USA-46 United Nations Conference on 
Trade and Employment, Sub -
Committee I (Article  94) of 
Committee VI (Organization), 
Notes of the Eight Meeting  United Nations Conference on Trade and Employment, Sub -
Committee I (Article  94) of Committee VI (Organization), 
Notes of the Eight Meeting, E/CONF.2/C.6/W.123 
(1 March  1948)  
USA-47 United Nations Conference on 
Trade and Employment, Sub -
Committee I (Article  94) of 
Committee VI (Organization), 
Notes of the Fourth Meeting  United Nations Conference on Trade and Employment, Sub -
Committee I (Article  94) of Committee VI (Organization), 
Notes of the Fourth Meeting, E/CONF.2/C.6/W.60 
(17 January  1948)  
USA-48 US Delegation, Minutes of the 
Delegation Meeting 
(2 July 1947)  US Delegation, Second Meeting of the United Nations 
Preparatory Committee for the International Conference on 
Trade and Employment, Minutes of the Delegation Meeting 
(2 July 1947)  
USA-49 US Delegation, Memorandum of 
Mr Rubin  US Delegation, Second Meeting of the United Nations 
Conference on Trade and Development, Memorandum of 
Seymour J. Rubin (14  July 1947)  
USA-52 US Department of State, 
Memorandum of Conversation 
on "Security Exceptions to 
proposed ITO Charter"  US Department of State, Memorandum of Conve rsation on 
"Security Exceptions to proposed ITO Charter" 
(17 June 1946)  
USA-53 -- US Delegation, Economic Disarmament (Draft)  
USA-54 US Delegation, Letter from Mr 
Coppock to Mr Wilcox  US Delegation, Letter dated 3  July 1946 from Mr Coppock to 
Mr Wilcox o n "National Security Provisions in the Draft 
Charter"  
USA-56 US Delegation, Minutes of the 
Delegation Meeting 
(4 July 1947)  US Delegation, Second Meeting of the United Nations 
Preparatory Committee for the International Conference on 
Trade and Employment, Minutes of the Delegation Meeting 
(4 July 1947)  
USA-57 Summary of the meeting of the 
GATT CONTRACTING PARTIES 
(9 December  1961)  GATT CONTRACTING PARTIES, Nineteenth Session, 
Summary Record of the Twelfth Session 
(9 December  1961), SR.19/12  
USA-58 Working Party Report on 
Accession of the United Arab 
Republic  GATT CONTRACTING PARTIES, Twenty -Sixth Session, 
Report by the Working Party on Accession of the United 
Arab Republic (25  February  1979), L/3362  
USA-59 GATT Council, Minutes of the 
Meeting (7 May 1982)  GATT Council, Minutes of the Meeting (7  May 1982), 
C/M/157  
USA-60 Communication of the 
European  Communities , 
Australia, and Canada to GATT 
contracting parties (4  May 1982)  European  Communities , Australia, and Canada, "Trade 
Restrictions Affec ting Argentina Applied for Non -Economic 
Reasons" (Revision), Communication to GATT contracting 
parties (4  May 1982), L/5319/Rev.1  
USA-61 GATT Council, Minutes of the 
Meeting (29 -30 June 1982)  GATT Council, Minutes of the Meeting (29 -30 June 1982), 
C/M/159  
USA-62 -- GATT CONTRACTING PARTIES, Decision Concerning 
Article  XXI of the General Agreement (30  November  1982), 
L/5426  
USA-63 GATT Council, Minutes of the 
Meeting (29  May 1985)  GATT Council, Minutes of the Meeting (29  May 1985), 
C/M/188  
USA-64 GATT Council, Minutes of the 
Meeting (12  March  1986)  GATT Council, Minutes of the Meeting (12  March  1986), 
C/M/196  
USA-65 -- GATT Panel  Report , United  States  – Trade Measures 
Affecting Nicaragua  
USA-66 GATT Council, Minutes of the 
Meeting (5 -6 November  1986)  GATT Council, Minutes of the Meeting (5 -6 November  1986), 
C/M/204  WT/DS544/R/Suppl.1  
 
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  Exhibit 
Number  Short title (if applicable)  Long title  
USA-90 -- GATT CONTRACTING PARTIES, Second Session, Rules of 
Procedure for Sessions of the CONTRACTING PARTIES (As 
adopted on 16  August  1948), GATT/CP.2/3 Rev.1  
USA-91 -- GATT CONTRACTING PARTIES, Rules of Procedure for 
Sessions of the CONTRACTING PARTIES 
(6 September  1949), GATT/CP/30  
USA-92 Corrigendum to Report of the 
24 July 1947 Meeting  United Nations Economic and Social Council, Second Session 
of the Preparatory Commit tee of the United Nations 
Conference on Trade and Employment, Corrigendum to 
Verbatim Report of Thirty -Third Meeting of Commission A 
(30 July 1947), E/PC/T/A/PV/33.Corr.3  
USA-150 Article  XXI Proposal by 
Nicaragua  Negotiating Group on GATT Articles, Article  XXI Proposal by 
Nicaragua (28  June 1988), MTN.GNG/NG7/W/48  
USA-151 Communication from Argentina  Negotiating Group on GATT Articles, Communication from 
Argentina (4  February  1988), MTN.GNG/NG7/W/44  
USA-152 -- Negotiating Group on GATT Ar ticles, Communication from 
Nicaragua (10  November  1987), MTN.GNG/NG7/W/34  
USA-153 Negotiating Group on GATT 
Articles, Note on Meeting of 27 -
30 June 1988 Negotiating Group on GATT Articles, Note on Meeting of 27 -
30 June 1988, MTN.GNG/NG7/8  
USA-181 -- The Treaty of Rome  
USA-183 -- Group of Negotiations on Services, Communication from 
Switzerland – Draft General Agreement on Trade in Services 
(7 June 1990), MTN.GNS/W/102  
USA-184 Communication from Brazil, 
Chile, Colombia, Cuba, 
Honduras, Jamaica, Nicaragua, 
Mexico, Peru, Trinidad and 
Tobago and Uruguay – Structure 
of a Multilateral Framework for 
Trade in Services  Group of Negotiations on Services, Communication from 
Brazil, Chile, Colombia, Cuba, Honduras, Jamaica, 
Nicaragua, Mexico, Peru,  Trinidad and Tobago and Uruguay 
– Structure of a Multilateral Framework for Trade in Services 
(26 February  1990), MTN.GNS/W/95  
USA-185 Communication from the 
United  States  – Agreement on 
Trade in Services  Group of Negotiations on Services, Communication from the 
United  States  – Agreement on Trade in Services 
(17 October  1989), MTN.GNS/W/75  
USA-186 Communication from the 
European  Communities  – Draft 
General Agreement on Trade in 
Services  Group of Negotiations on Services, Communication from the 
European  Communities  – Draft General Agreement on Trade 
in Services (18  June 1990), MTN.GNS/W/105  
USA-187 -- Group of Negotiations on Services, Communication from 
Japan – Draft General Agreement on Trade in Services 
(10 July 1990), MTN.GNS/W/107  
USA-188 Group of Negotiations on 
Services, Draft Multilateral 
Framework for Trade in Services 
(23 July 1990)  Group of Negotiations on Services, Draft Multilateral 
Framework for Trade in Services (23  July 1990), 
MTN.GNS/35  
USA-189 -- Trade Negotiations Committee, Draft Fin al Act Embodying 
the Results of the Uruguay Round of Multilateral Trade 
Negotiations (Revision) (3  December  1990), 
MTN.TNC/W/35/Rev.1  
USA-190 Draft Final Act Embodying the 
Results of the Uruguay Round 
(20 December  1991)  Trade Negotiations Committee, Draft  Final Act Embodying 
the Results of the Uruguay Round of Multilateral Trade 
Negotiations (20  December  1991), MTN.TNC/W/FA  
USA-191 Draft Text of the 
TRIPS  Agreement  Negotiating Group on Trade -Related Aspects of Intellectual 
Property Rights, including Trade  in Counterfeit Goods, 
Status of Work in the Negotiating Group – Chairman's 
Report to the GNG (23  July 1990), MTN.GNG/NG11/W/76  
USA-192 Communication from Nicaragua  Negotiating Group on Dispute Settlement, Communication 
from Nicaragua (3  November  1987), MTN.GNG/NG13/W/15  
USA-193 -- Negotiating Group on Dispute Settlement, Meeting of 
20 November  1987 – Note by the Secretariat, 
MTN.GNG/NG13/5  
USA-194 Negotiating Group on Dispute 
Settlement, Meeting of 
20 November  1987 – Note by 
the Secretariat (Addendum)  Negotiating Group on Dispute Settlement, Meeting of 
20 November  1987 – Note by the Secretariat (Addendum), 
MTN.GNG/NG13/5/Add.1  
USA-195 -- Negotiating Group on Dispute Settlement, Meeting of 
25 June 1987 – Note by the Secretariat, M TN.GNG/NG13/2  WT/DS544/R/Suppl.1  
 
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  Exhibit 
Number  Short title (if applicable)  Long title  
USA-196 -- Negotiating Group on Dispute Settlement, Meeting of 
11 July 1988 – Note by the Secretariat, MTN.GNG/NG13/9  
USA-197 Israel – United  States  
Agreement on the Establishment 
of a Free Trade Area  Agreement on the Establishment of a Free Trade Area 
between the Government of Israel and the Government of 
the United  States  of America  
USA-221 EEA Agreement  Agreement on the European Economic Area (EEA)  
 
  WT/DS544/R/Suppl.1  
 
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  1  INTRODUCTION  
1.1.  The parties have referred to various materials to  support or to confirm their interpretation of 
the terms of Article  XXI of the GATT  1994. Much of this material relates to the negotiations of 
Article  XXI of the GATT  1947, which remained unaltered in wording in the GATT  1994, as well as 
various views and decisions of the contracting parties  under the GATT  1947. At the outset, the Panel 
notes that the relevant treaty provision for the purposes of its interpretive analysis is Article  XXI of 
the GATT  1994, an agreement that "is legally distinct from" the GATT  1947.1 The Panel also notes 
that the materials submitted by the parties may be of interpretive relevance to Article  XXI of the 
GATT  1994 under the following legal bases: (i)  Article  XVI:1 of the WTO  Agreement ; (ii) paragraph 
1(b)(iv)  of the GATT  1994; (iii)  Article  31(3) of the Vienna  Convention ; and (iv)  Article  32 of the 
Vienna  Convention .2  
1.2.  Pursuant to Article  XVI:1 of the WTO  Agreement , except as otherwise provided in that 
Agreement or in the Multilateral Trade Agreements, the WTO "shall be guided by the decisions, 
procedures and customary practices followed by the CONTRACTING PARTIES to the GATT  1947 and 
the bodies established in the framework of GATT  1947". Paragraph 1(b)(iv) of the GATT  1994 
stipulates that "o ther decisions of the CONTRACTING PARTIES to the GATT  1947" are incorporated 
into the GATT  1994. Article  31(3)(a) and (b) of the Vienna  Convention  establish that, when 
interpreting a treaty, there shall be "taken into account", together with the context: " any subsequent 
agreement between the parties regarding the interpretation of the treaty or the application of its 
provisions"; and "any subsequent practice in the application of the treaty which establishes the 
agreement of the parties regarding its interp retation". In addition, Article  32 of the 
Vienna  Convention  allows recourse to supplementary means of interpretation to confirm the meaning 
resulting from the application of Article  31 of the Vienna  Convention  or to determine the meaning 
when the interpret ation under Article  31 either leaves the meaning ambiguous or obscure or leads 
to a result that is manifestly absurd or unreasonable.  
1.3.  In this Appendix, the Panel addresses the parties' arguments on the various materials 
submitted in relation to the interpr etation of Article  XXI of the GATT  1994. The Panel will first review 
materials from the negotiations of the GATT  1947 and the International Trade Organization (ITO) 
Charter until the conclusion of the GATT  1947 (section 2). The Panel will then review mater ials from 
the ITO Charter negotiations that took place after the conclusion of the GATT  1947 (section 3). The 
Panel will next examine certain internal documents of the US delegation at the ITO/ GATT  1947 
negotiations (section 4). Thereafter, the Panel will examine two decisions (sections 5 and 6) and 
views expressed on various occasions by the GATT contracting parties (section 7). Finally, the Panel 
will review the parties' arguments on materials from the Uruguay Round of negotiations (section 8).  
1.4.  In each o f the following sections, the Panel will first provide an overview of the arguments and 
the materials submitted by the parties. The Panel will then address the possible interpretive 
relevance of such materials to Article  XXI of the GATT  1994 before assessing the content of the 
materials in relation to the interpretation of Article  XXI of the GATT  1994.  
2  NEGOTIATIONS OF THE ITO CHARTER  AND THE GATT  1947  
2.1  Arguments and materials  submitted by the parties  
2.1.  The United  States  argues that the negotiat ing history of the GATT  1947 may constitute the 
historical background  against which the GATT  1994 was negotiated, and can therefore be relevant 
for the purposes of interpreting provisions of the GATT  1994, including Article  XXI.3 The 
United  States  further  emphasizes that the text of Article  XXI remained unchanged when the 
 
1 Article  II:4 of the WTO  Agreement . The text of the GATT  1947 was finalized in October 1947 and the 
agreement was applied from 1  January  1948 on a provisional basis. The Havana Charter creating the ITO never 
entered into force and the GATT  1947 continued to be provisionally applied until one year after the entry int o 
force of the WTO  Agreement  and the GATT  1994. 
2 The Panel notes that the parties have not identified any other legal basis under which the submitted 
materials may be relevant for the purposes of the interpretation of Article  XXI of the GATT  1994. (See th e 
parties' responses to Panel question No.  24). 
3 United  States ' first written submission, para.  56. WT/DS544/R/Suppl.1  
 
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  provision was incorporated in the GATT  1994 during the Uruguay Round, even if negotiators were 
presented with the possibility of amending the language.4 
2.2.  China  does not formally object to  the use of the negotiating record of the GATT  1947.5  
2.1.1   October  1946  proposal  
2.3.  In October 1946, the United  States  submitted a proposal for a draft text of the ITO Charter 
that included the following two exceptions provisions:  
Article  32 (General Exceptions to Chapter IV )  
Nothing in Chapter IV of this Charter shall be construed to prevent the adoption or 
enforcement by any Member of measures …  
(c) relating to fissionable materials;  
(d) relating to the traffic in arms, ammunition and implements of war and to such traffic 
in other goods and materials as is carried on for the purpose of supplying a military 
establishment;  
(e) in time of war or other emergency in international relations, relating to the 
protection of the essential security interests of a Member.  
 
Article  49.2 ( Exceptions to Provisions Relating to Intergovernmental Commodity 
Agreements ) 
None of the foregoing provisions of Chapter VI is to be interpreted as applying to 
agreements relating to fissionable materials; to the traffic in arms, ammunition and 
implements of war and to such traffic in other goods and materials as is carried on for 
the purpose of supplying a military establishment; or, in time of war or other emergency 
in international relations, to the protection of the essential security int erests of a 
Member.6 
2.4.  The United  States  notes that the two proposed exceptions dealing with essential security 
interests were not explicitly self -judging in their initial formulation, emphasi zing that this proposal 
did not include the phrase "it considers necessary", which features instead in the final text of 
Article  XXI of the GATT  1947.7  
2.5.  China  does not specifically comment on this document . 
2.1.2   March 1947  draft text 
2.6.  A report of the Drafting Co mmittee of the Preparatory Committee of the United Nations 
Conference on Trade and Employment, dated 5  March  1947, contained a draft general exceptions 
 
4 United  States ' second written submission, para.  45. 
5 China's response to Panel question No.  57. 
6 United Nations Conference on Trade and Development, Re port of the First Session of the Preparatory 
Committee (31  October  1946), E/PC/T/33, (Exhibit USA -31), Annexure 11  (United  States  Draft Charter) , pp. 
60 and 63.  
7 United  States ' first written submission, para.  59. The United  States  also refers to a stateme nt that a 
delegate of the United  States  made in October 1946 in the context of a meeting of the Preparatory Committee 
of the International Conference on Trade and Employment (Committee II – Technical Subcommittee). 
Responding to the concerns raised by anot her delegation on the scope of the draft provision on freedom of 
transit, the delegate of the United  States  "pointed out that Article  32(e) afforded complete opportunity for the 
adoption of all measures regarded as necessary for the protection of national interests in time of war or other 
national emergency". ( United Nations Economic and Social Council, Preparatory Committee of the International 
Conference on Trade and Employment, Committee II, Technical Subcommittee, Second meeting 
(21 October  1946), E/PC/ T/C.II/W.5 , (Exhibit USA -32), p. 11)  WT/DS544/R/Suppl.1  
 
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  provision reproduced with the same text both in the GATT ( Article  XX) as well as in the draft text of 
the ITO Charter ( Article  37). The text of the draft provision read, in relevant part:  
Article  37 (General exceptions to chapter V ) and Article  XX (General exceptions ) 
Subject to the requirement that such measures are not applied in a manner which would 
const itute a means of arbitrary or unjustifiable discrimination between countries where 
the same conditions prevail, or a disguised restriction on international trade, nothing in 
this Agreement shall be construed to prevent the adoption or enforcement by any 
contracting party of measures: …  
(c) Relating to fissionable materials;  
(d) Relating to the traffic in arms, ammunition and implements of war and to such traffic 
in other goods and materials as is carried on for the purpose of supplying a military 
establishm ent; 
(e) In time of war or other emergency in international relations, relating to the 
protection of the essential security interests of a contracting party.8 
2.7.  The United  States  notes that the security exceptions were placed alongside several 
subparagraphs  identical to those that would later feature in the text of Article  XX of the GATT  1947.9 
Furthermore, the United  States  points out that the security exceptions were subject to a proviso 
with language similar to that of the chapeau  of Article  XX of the GA TT 1994 as it currently stands.10 
According to the United  States , this structure and, specifically, the presence of the chapeau  suggest 
that, at the time of the draft, not all delegations viewed the security exceptions as "self -judging".11  
2.8.  China does not specifically comment on this document .12 
2.1.3   May 1947 proposal  
2.9.  In May 1947, the United  States  proposed several amendments to the draft text of the ITO 
Charter, including a proposal to move the security exceptions from being part of a broader provision 
on "general exceptions" to featuring as a standalone provision at the end of the Charter.13 The 
proposed text submitted by the United  States  read, in relevant part:  
Nothing in this Charter shall be construed to prevent the adoption or enforcement by 
any Member  of measures: …  
 
8 United  States ' first written submission, para.  60; United Nations Economic and Social Council, Report 
of the Drafting Committee of the Preparatory Committee of the United Nations Conference on Trade and 
Employment (5  March  1947), E/PC/T/34 , (Exhibit USA -33), pp. 31 and 77. Similarly, Article  59 of the draft text 
of the ITO Charter at that time ( Exceptions to provisions relating to intergovernmental commodity 
arrangements ) read:  
The provisions of Chapter VII shall not apply: …  
(c) to arrangements relating to fissionable materials, to the traffic in arms, ammunition and 
implements of war and to such traffic in other goods and materials as is carried on for the 
purpose of supplying a military establishment, or in the time of war or other emergency in 
international relations, to the protection of the essential security interests of a Member. ( Report 
of the Drafting Committee of the Preparatory Committee, (Exhibit USA -33), pp. 43 -44).  
9 United  States ' first wr itten submission, para.  61. 
10 United  States ' first written submission, para.  61. 
11 United  States ' first written submission, para.  61. 
12 The European  Union , in its third -party submission, disagrees with the United  States  on the 
significance of subjecting th e security exceptions to a proviso akin to the language of the chapeau  of Article  XX 
of the GATT  1994. According to the European  Union , a chapeau  is not a necessary element for an exception to 
be justiciable, and several exceptions in the covered agreement s, although not containing a chapeau  à la 
Article  XX of the GATT  1994, are nevertheless "justiciable" and are thus subject to panels' review when invoked 
in disputes. (See European  Union 's third -party submission, para.  84 (referring to Articles  XIV.1 and X XIV of the 
GATT  1994) ). 
13 United  States ' first written submission, para.  62; United Nations Economic and Social Council, Second 
Session of the Preparatory Committee of the United Nations Conference on Trade and Employment , Proposal 
by the US Delegation (6  May 1947), E/PC/T/W/23 , (Exhibit USA -34), p. 5.  WT/DS544/R/Suppl.1  
 
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  (c) Relating to fissionable materials;  
(d) Relating to the traffic in arms, ammunition and implements of war and to such traffic 
in other goods and materials as is carried on for the purpose of supplying a military 
establishment;  
(e) In tim e of war or other emergency in international relations, relating to the 
protection of the essential security interests of a contracting party.14  
2.10.   The United  States  notes that, under the proposed amendment, security exceptions would be 
formally separated fr om other exceptions and would apply to the entire ITO Charter as opposed to 
a specific chapter thereof.15  
2.11.   China does not specifically comment on this document . 
2.1.4   4 July 1947  proposal  
2.12.   On 4 July 1947, the United  States  proposed the addition of a new chapter at the end of the 
draft text of the ITO Charter ("Miscellaneous"). The United  States  suggested the inclusion of the 
security exceptions provision in the new chapter, and proposed the following amendments to the 
previously circulated versions of the provision:  
Article  94 (General Exceptions ) 
Nothing in this Charter shall be construed to require any Member to furnish any 
information the disclosure of which it considers contrary to its essential security 
interests, or to  prevent any Member from taking any action which it may consider to be 
necessary to such interests:  
a) Relating to fissionable materials or their source materials;  
b) Relating to the traffic in arms, ammunition and implements of war and to such traffic 
in other goods and materials as is carried on for the purpose of supplying a military 
establishment;  
c) In time of war or other emergency in international relations, relating to the protection 
of its essential security interests;  
d) Undertaken in pursuance of  obligations under the United Nations Charter for the 
maintenance of international peace and security.16 
2.13.   The United  States  notes that this was the first time that the text of the provision on security 
exceptions contained a reference to actions that an ITO  member might "consider" necessary relating 
to the protection of its essential security interests.17 In the United  States ' view, the text as modified 
explicitly indicated that the provision could be invoked based on an ITO member's own judgment.18 
Furtherm ore, the United  States  submits that this reformulation marked a distinction between the 
"self-judging" nature of exceptions pertaining to security matters and exceptions related to the 
protection of other interests.19  
2.14.   China does not specifically comment o n this document .20 
 
14 May 1947 Proposal by the US Delegation, (Exhibit USA -34), p. 5.  
15 United  States ' first written submission, para.  62. 
16 United Nations Economic and Social Council, Second Session of the Prepara tory Committee of the 
United Nations Conference on Trade and Employment, Proposal by the US Delegation (4  July 1947), 
E/PC/T/W/236, (Exhibit USA -35), p. 13.  
17 United  States ' first written submission, para.  64. 
18 United  States ' first written submission, par a. 64. 
19 United  States ' first written submission, para.  64. 
20 In its third -party submission, the European  Union  argues that the inclusion of language such as "it 
may consider necessary" does not demonstrate anything further on the proper interpretation of those words, WT/DS544/R/Suppl.1  
 
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  2.1.5   24 July 1947 meeting  
2.15.   The parties have referred to exchanges between delegates at a meeting of Commission A 
(Second Session of the Preparatory Committee of the United Nations Conference on Trade and 
Employment) that took place on 24  July 1947.21  
2.16.   During this meeting, the delegate of the Netherlands requested clarification on the scope of 
the security exceptions in relation to the meaning of "emergency in international relations" and 
"essential security interests" in the draft provision.22 The delegate of the Netherlands further raised 
the concern that an exception based on "essential security interests" could be "possibly a very big 
loophole in the whole Charter".23 
2.17.   The delegate of the United  States  took the floor to respond to these quest ions as the draft 
provision in question originated in a proposal by the United  States . The delegate of the United  States  
expressed recognition of "a great danger of having too wide an exception" that "would permit 
anything under the sun" if the provision s imply referred to "measures relating to a Member's security 
interests".24 The same delegate stated the desire to "draft provisions which would take care of real 
security interests and, at the same time, so far as we could, to limit the exception so as to p revent 
the adoption of protection for maintaining industries under every conceivable circumstance".25  
2.18.   The delegate of the United  States  commented in relation to the expression "in time of war" 
that "the limitation … is primarily in the time" of the action s taken by an ITO member. The delegate 
of the United  States  added that "no one would question the need of a Member, or the right of a 
Member, to take action relating to its security interests in time of war and to determine for itself … 
what its security i nterests are."26 Regarding the terms "other emergency in international relations", 
the delegate of the United  States  explained that "we had in mind particularly the situation which 
existed before" the participation of the United  States  in the Second World War.27 Specifically, the 
delegate of the United  States  referred to measures that the United  States  took at that time "for [its] 
own protection" and that would have been prohibited by the Charter.28 The delegate of the 
United  States  concluded the intervention by affirming the need for some "latitude" for security 
measures while maintaining a "balance":  
It is really a question of a balance. We have got to have some exceptions. We cannot 
make it too tight, because we cannot prohibit measures which are needed purely for 
security reasons. On the other hand, we cannot make it so broad that, under the guise 
of security, countries will put on measures which really have a commercial purpose.29 
 
nor does it show that the provision is self -judging and that WTO panels are precluded from objecti vely 
assessing the invocation of Article  XXI by a party in a dispute. (See European  Union 's third -party submission, 
para. 86). 
21 The Second Session of the Preparatory Committee of the United Nations Conference on Trade and 
Employment was divided into two commissions, each consisting of representatives of all delegations. 
Commission A and its sub -committees worked on texts relating to the chapters on Employment and Economic 
Activity, Economic Development and General Commercial Policy. All the drafts were submitted for review at 
final plenary meetings of the Preparatory Committee. (See United Nations Economic and Social Council, Repor t 
of the Second Session of the Preparatory Committee of the United Nations Conference on Trade and 
Employment (19  August  1947), E/PC/T/180 (Exhibit USA -37), p. vi, fn  1). 
22 United Nations Economic and Social Council, Second Session of the Preparatory Commi ttee of the 
United Nations Conference on Trade and Employment, Report of the Thirty -Third Meeting of Commission A 
(24 July 1947), E/PC/T/A/PV/33, (Exhibit USA -41), p. 19.  
23 Report of the 24  July 1947 Meeting, (Exhibit USA -41), p. 19.  
24 Report of the 24  July 1947 Meeting, (Exhibit USA -41), p. 20.  
25 Report of the 24  July 1947 Meeting, (Exhibit USA -41), p. 20; United Nations Economic and Social 
Council, Second Session of the Preparatory Committee of the United Nations Conference on Trade and 
Employment, Corrig endum to Verbatim Report of Thirty -Third Meeting of Commission A (30  July 1947), 
E/PC/T/A/PV/33.Corr.3, (Exhibit USA -92). 
26 Report of the 24  July 1947 Meeting, (Exhibit USA -41), p. 20; Corrigendum to Report of the 
24 July 1947 Meeting, (Exhibit USA-92). 
27 Report of the 24 July 1947 Meeting, (Exhibit USA -41), p. 20.  
28 Report of the 24  July 1947 Meeting, (Exhibit USA -41), p. 20.  
29 Report of the 24  July 1947 Meeting, (Exhibit USA -41), p. 21.  WT/DS544/R/Suppl.1  
 
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  2.19.   The Chairperson intervened next and stated "in defence of the text" that "the atmosphere 
inside the ITO will be the only efficient guarantee against abuses of the kind to w hich the Netherlands 
Delegate has drawn our attention".30 
2.20.   Subsequently at the meeting, the Chairperson posed the question of whether "transferring 
these items from Article  37 to the end of the Charter" would mean that "these clauses should not 
provide for any possibility of redress", including under Article  35 of the draft text on consultations 
and nullification or impairment.31 The delegate of the United  States  took the floor to express the 
view that the place of a provision in the Charter had "nothing to do" with the applicability of Article  35 
of the draft text32, which at that time provided recourse if "any other Member is applying any 
measure, whether or not it conflicts with the terms of the Charter, or that any situation exists, which 
has the effect o f nullifying or impairing any object of this Charter".33  
2.21.   In the view of the delegate of the United  States , Article  35 was "very broad in its terms", and 
"probably cover[ed] any action taken by a Member under any provision of the Charter".34 The 
delegate o f the United  States  further stated that an action taken under the security exceptions "could 
not be challenged in the sense that it could not be claimed that the Member was violating the 
Charter", but there was still a possibility for that action, even if not in conflict with the terms of 
Article  94, to affect another ITO member.35 The delegate of the United  States  thus noted that, in 
those circumstances, the affected ITO member "would have the right to seek redress under 
Article  35" of the draft text of th e ITO Charter.36 The delegate of the United  States  concluded the 
intervention noting that "there [was] no exception from the application of Article  35 to [ Article  94] 
or any other Article".37 The delegate of Australia intervened next to confirm that its de legation was 
reassured about the confirmation that, "at any rate", ITO members would still have the right to seek 
redress under Article  35(2) for actions justified under Article  94.38 Following some additional 
discussion of the applicability of Article  35 to the proposed security exceptions39, the Chairperson 
concluded the discussions noting that the Committee had considered and approved the draft of 
Article  94.40 
2.22.   In this dispute, the United  States  argues that this exchange demonstrates that the drafters 
understood that "essential security measures" could not be challenged as violating obligations in the 
underlying agreement.41 According to the United  States , the debate further shows th at an ITO 
member affected by such measures could claim that its expected benefits under the Charter had 
been nullified or impaired as foreseen in Article  35(2).42 Applied to the WTO context, the 
United  States  argues that the discussion indicates that essen tial security interests measures cannot 
 
30 Report of the 24  July 1947 Meeting, (Exhibit USA -41), p. 21. 
31 Report of the 24  July 1947 Meeting, (Exhibit USA -41), p. 26.  
32 Report of the 24  July 1947 Meeting, (Exhibit USA -41), p. 26.  
33 Report of the Drafting Committee of the Preparatory Committee, (Exhibit USA -33), p. 30.  
34 Report of the 24  July 1947 Meetin g, (Exhibit USA -41), p. 26.  
35 Report of the 24  July 1947 Meeting, (Exhibit USA -41), p. 26.  
36 Report of the 24  July 1947 Meeting, (Exhibit USA -41), p. 27.  
37 Report of the 24  July 1947 Meeting, (Exhibit USA -41), p. 27.  
38 Report of the 24  July 1947 Meeting, (Exhibit USA -41), p. 27. The delegate of Australia also proposed 
that a note be inserted in the Report of the Commission saying that it was the unanimous opinion of the 
drafters that the text of Article  94 was not in conflict with the ITO members'  rights under Article  35(2). The 
delegate of the United  States  responded that, while not objecting to the proposal, the insertion of such a note 
would pose questions of interpretation elsewhere in the Charter. According to the delegate of the 
United  States , Article  35 on consultations and nullification or impairment covered "everything in the Charter". 
The delegate of the United  States  further stated that, in order to prevent the application of Article  35 to 
Article  94, the negotiators would need to have "a n explicit provision in Article  35 saying that no Member should 
bring any complaint in respect of measures taken pursuant to Article  94". However, in the view of the delegate 
of the United  States , as it was "perfectly clear" from the existing text that Article 35 did apply to the security 
exceptions in Article  94, a note emphasizing what was already clear text was not necessary. The delegate of 
Australia acknowledged the intervention of the United  States  and withdrew Australia's reservation. (Ibid. pp. 
28-29; see also Corrigendum to Report of the 24  July 1947 Meeting, (Exhibit USA -92), with a corrigendum to 
the verbatim report of the discussion).  
39 Report of the 24  July 1947 Meeting, (Exhibit USA -41), p. 29.  
40 Report of the 24  July 1947 Meeting, (Exhibit USA -41), p. 30.  
41 United  States ' first written submission, para.  71. 
42 United  States ' first written submission, para.  71. WT/DS544/R/Suppl.1  
 
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  be found to be in violation of any provision of the GATT  1994, but could at most be the subject of a 
non-violation complaint.43 
2.23.   China maintains that the exchange clarifies that Article  XXI(b) was not meant to "permit  
anything under the sun", and that the drafters sought to strike a proper balance between allowing 
ITO members to protect their security interests, while at the same time ensuring that protectionist 
measures would not be condoned.44 
2.24.   Certain third parties p rovided their views on the 24  July 1947 meeting. According to the 
European  Union , the discussion demonstrates that the United  States  did not intend to draft the 
security exceptions as a self -judging provision. The European  Union  notes that the delegate of the 
United  States  emphasized the existence of objective and testable limits to the scope of the provision. 
The European  Union  also observes that the delegate of the United  States  was careful to exclude the 
applicability of the provision to measures "which really have a commercial purpose". Finally, the 
European  Union  disputes that non -violation complaints were the only available response to the 
invocation of the security exceptions.45 In Switzerland's view, the exchanges at the meeting of the 
negotiating co mmittee prove that the drafters did not want to have a too broad exception that would 
permit "anything under the sun", did not envisage a self -judging security exceptions provision, and 
did not intend to subject security measures exclusively to non -violati on complaints, as the discussion 
reveals that the entirety of Article  35 would be applicable to measures taken pursuant to Article  94 
of the draft text of the ITO Charter.46 Türkiye refers to the exchanges within the negotiating 
committee to argue that the  United  States  itself recognized that the security exceptions had limited 
scope. Türkiye further maintains that nothing in the negotiations suggests that non -violation 
complaints were considered to be the only available remedy.47 Hong Kong, China reads the  summary 
of the discussion as showing how delegations, including the United  States , did not consider 
Article  XXI(b) to be entirely self -judging or that ITO members ' rights of redress in respect of the 
exception would be limited.48 
2.1.6   31 July 1947  and 19  August  1947 Draft Texts  
2.25.   A report of the Preparatory Committee of the United Nations Conference on Trade and 
Employment, dated 31  July 1947, includes a text of the provision reflecting approval of the 
United  States ' proposed revision:  
Article  91* ( General Exceptions ) 
Nothing in this Charter shall be construed to require any Member to furnish any 
information the disclosure of which it considers contrary to its essential security 
interests, or to prevent any Member from taking any action which it may c onsider to be 
necessary to such interests:  
(a) Relating to fissionable materials or their source materials;  
(b) Relating to the traffic in arms, ammunition and implements of war and to such traffic 
in other goods and materials as is carried on for the purp ose of supplying a military 
establishment;  
(c) In time of war or other emergency in international relations, relating to the 
protection of its essential security interests;  
 
43 United  States ' first written submission, para.  71; second written submission, para.  44. 
44 China's opening statement at the first meeting of the Panel , para.  39, referring to Report of the 
24 July 1947 Meeting, (Exhibit USA -41), p. 20. 
45 European  Union 's third -party submission, paras.  89-98. 
46 Switzerland's third -party submission, paras.  69-70. 
47 Türkiye's third -party submission, paras.  3.73–3.77. 
48 Hong Kong, China's third -party submission, para.  43. WT/DS544/R/Suppl.1  
 
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  (d) Undertaken in pursuance of obligations under the United Nations Charter for the  
maintenance of international peace and security.49 
* As approved by Commission A  
2.26.   A report of the Second Session of the Preparatory Committee of the United Nations Conference 
on Trade and Employment dated 19  August  1947 contains a new draft text of the ITO  Charter, 
including the following text for the security exceptions:  
Article  94 (General Exceptions ) 
Nothing in this Charter shall be construed  
(a) to require any Member to furnish any information the disclosure of which it considers 
contrary to its essent ial security interests, or  
(b) to prevent any Member from taking any action which it considers necessary for the 
protection of its essential security interests  
(i) relating to fissionable materials or the materials from which they are 
derived;  
(ii) relatin g to the traffic in arms, ammunition and implements of war and 
to such traffic in other goods and materials as is carried on directly or 
indirectly for the purpose of supplying a military establishment;  
(iii) taken in time of war or other emergency in inte rnational relations; or  
(c) to prevent any Member from taking any action in pursuance of its obligations under 
the United Nations Charter for the maintenance of international peace and security.50 
2.27.   The United  States  notes that, in this revised text, the lan guage of the security exceptions 
changed, in relevant part, from "action which it may consider necessary" to "action which it considers 
necessary".51 The United  States  further notes that the final text of Article  XXI of the GATT  1947 
reflected this revisio n to the text of the security exceptions.52  
2.28.   China does not specifically comment on these documents . 
2.1.7   "An Informal Summary of the ITO Charter" (21  November  1947)  
2.29.   The United  States  refers to a document entitled "An informal summary of the ITO Charter" 
prepar ed by the Negotiating Group in November 1947. Regarding the security exceptions, the 
summary reads:  
Members may … do whatever they think necessary to protect their security interests 
relating to atomic materials, arms traffic, and wartime or other international 
emergencies, and to maintain peace according to their obligations under the United 
Nations Charter.53 
 
49 United Nations Economic and Social Council, Second Session of the Preparatory Committee of the 
United Nations Conference on Trade and Employment, Report of the Committee on Chapters I, II and VIII 
(31 July 1947), E/PC/T/139, (Exhibit USA -36), pp. 25 -26. 
50 Report of the Second Session of the Preparatory Committee, (Exhibit USA -37), p. 178.  
51 United  States ' first written submission, para.  65. 
52 United  States ' first written submission, para.  65; United Nations Economic and Social Council, Second 
Session of the Preparatory Committee of the United Nations Conference on Trade and Employment, (Draft) 
General Agreement on Tariff s and Trade (30  August  1947), E/PC/T/189, (Exhibit USA -38), p. 47.  
53 United Nations Conference on Trade and Employment, An Informal Summary of the ITO Charter 
(21 November  1947), E/CONF.2/INF.8, (Exhibit USA -39), p. 35.  WT/DS544/R/Suppl.1  
 
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  2.30.   The United  States  argues that the summary comments on the self -judging nature of the 
provision.54  
2.31.   China does not specifically comment on this document . 
2.2  Assessment  by the Panel  
2.32.   The Panel takes note of the parties' views  on the relevance of the negotiating history of the 
ITO Charter and the GATT  1947 as supplementary means for the interpretation of the GATT  1994 
under Article  32 of the Vienna  Convention .  
2.33.   The supplementary means of interpretation that may be considered under Article  32 of the 
Vienna  Convention  are not exhaus tively defined and may include, but are not limited to, the 
preparatory work and the circumstances of the conclusion of the treaty.55 As noted above, the 
relevant treaty provision in this analysis is Article  XXI the GATT  1994, an agreement that "is legally  
distinct from" the GATT  1947.56 This legal distinction does not preclude recourse to the preparatory 
work of the ITO Charter and the GATT  1947 as supplementary means for the interpretation of 
corresponding provisions in the GATT  199457, particularly given  that the terms of Article  XXI of the 
GATT  1994 have not been amended compared to their original formulation in the GATT  1947. At the 
same time, the Panel is mindful that the ITO Draft Charter and the GATT  1947 were negotiated 
against the background of a d ifferent institutional setting compared to the WTO, particularly with 
respect to the resolution of disputes. The Panel will factor this consideration into its assessment as 
relevant to the contested issues in this dispute regarding the interpretation of Article XXI of the 
GATT  1994.  
2.34.   Under Article  32 of the Vienna  Convention , recourse to supplementary means of interpretation 
may be had either to confirm the meaning resulting from the application of Article  31, or to 
determine the meaning when the interpreta tion according to Article  31 leaves the meaning 
ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable. The Panel 
does not consider that the application of Article  31 of the Vienna  Convention  to the interpretation of 
Article  XXI(b) of the GATT  1994 leaves the meaning of the provision ambiguous or obscure in relation 
to the contested interpretive issues in this dispute, nor does the Panel find that it leads to a result 
which is manifestly absurd or unreasonable. The Panel also n otes the parties' agreement that any 
recourse to supplementary means of interpretation may only serve to confirm the meaning of 
Article  XXI(b) of the GATT  1994 as determined through the application of Article  31 of the 
Vienna  Convention .58 The Panel theref ore reviews the negotiating history of the ITO Charter and the 
GATT  1947 in light of the interpretive conclusions resulting from the application of Article  31 of the 
Vienna  Convention  and the limited purposes under Article  32 of the Vienna  Convention  for having 
recourse to supplementary means of interpretation.  
2.35.   Based on the parties' arguments and the contested issues in this dispute, the Panel will begin 
by reviewing the evolution of the security exceptions provision in terms of its envisag ed scope of 
application, the removal of language similar to the chapeau  of Article  XX of the GATT  1994, and the 
inclusion of reference to what a Member "considers" or "may consider" necessary as part of the 
provision. The Panel will then review the discuss ion that took place on 24  July 1947 with specific 
regard to the positions of the delegations on the limits for the invocation of the security exceptions 
and the possibility for ITO members affected by security measures to seek some form of redress. 
The Pan el will next address the relevance of an informal summary prepared by the Negotiating Group 
towards the end of 1947. Finally, the Panel will make some concluding observations on early debates 
 
54 United  States ' first written submi ssion, para.  65. 
55 See Appellate  Body Report, EC – Chicken Cuts , para.  283. 
56 See para.  1.1 and fn  1 above.  
57 See Appellate  Body Reports, Japan – Alcoholic Beverages II , p. 24, fn  52 (regarding Article  III:2 of 
the GATT  1947and the Ad note thereto); Canada – Periodicals, p. 34 (regarding Article  III:8(b) of the 
GATT  1947); US – Line Pipe , para.  175 (regarding Article  XIX of the GATT  1947), and Panel  Report , Russia – 
Traffic in Transit , para.  7.83 (regarding Article  XXI of the GATT  1947). 
58 While the parties disagree on the meaning of Article  XXI(b ), they do not consider such disagreement 
to be symptomatic of an ambiguity that must be resolved through recourse to supplementary means of 
interpretation. (See United  States ' response to Panel question No.  56; China's response to Panel question 
No. 56).  WT/DS544/R/Suppl.1  
 
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  in the negotiations of the ITO Charter concerning the distinctio n between "justiciable" and 
"non-justiciable" issues.  
2.36.   Regarding the scope of application of the security exceptions, draft provisions were originally 
included in the general exceptions to the Chapter on general commercial policy in the draft text of 
the ITO Charter. Negotiators ultimately agreed that the security exceptions would be moved to the 
end of the Charter in a standalone provision applicable to the entire Charter and to the entire 
GATT  1947. Notably, the proponent of this amendment indicated its u nderstanding at the time that 
the placement of the provision at the end of the Charter would not affect the applicability of the 
provisions on consultation and nullification or impairment.59 The Panel similarly considers that the 
placement of the security exceptions does not in itself determine the applicability of provisions on 
consultations and nullification or impairment, which is instead a function of the terms of the 
exception and the relevant procedures in the event of nullification or impairment.  
2.37.   The United  States  draws the Panel's attention to the fact that, in earlier formulations, security 
exceptions would have been subject to a proviso akin to the chapeau  of Article  XX of the GATT  1994 
and, by implication, that the removal of the chapeau  language  was a step towards making the 
security exceptions self -judging.60 The Panel does not see the presence or absence of such language 
as indicating the intentions of the drafters regarding the review of an invocation of a provision dealing 
with "essential sec urity interests". The text of the proviso included in the March 1947 draft does not 
refer to review of the invocation of the security exceptions, but rather includes requirements similar 
to those under the chapeau  of Article  XX of the GATT  1994 concerning application of measures in a 
manner that would qualify as arbitrary or unjustifiable discrimination, or as a disguised restriction 
to trade. The fact that negotiators decided not to include similar requirements in the introductory 
language to the security exceptions offers no indication, in and of itself, about the scope and nature 
of review that could be conducted in accordance with the specific terms and requirements that were 
ultimately included in Article  XXI of the GATT  1947. Therefore, the Panel does not find a clear 
connection between early proposals to include certain requirements in an introductory proviso and 
any consideration that the security exceptions were "self -judging" in the sense argued by the 
United  States .  
2.38.   The Panel takes note of the app earance in the security exceptions of terms such as "it may 
consider" and "it considers" beginning with a proposal by the United  States  dated 4  July 1947. The 
Panel does not find any explicit indication that these terms establish the entirely "self -judging  nature" 
of the provision as argued by the United  States . The terms "it may consider" (or "it considers" in 
later iterations of the text) denote the consideration or judgment of the Member taking action under 
the security exceptions. However, the introduct ion and retention of such terms does not in itself, 
and without regard to other relevant features and terms of the provision, provide further clarity on 
the possible review of an invocation of the security exceptions in Article  XXI of the GATT  1994.  
2.39.   The p arties have submitted arguments concerning exchanges that took place at a meeting of 
the ITO Negotiating Committee of 24  July 1947. The Panel makes the following observations on 
these discussions, specifically concerning the scope of the security exception s and the possible 
redress for ITO members affected by measures taken under that exception.  
2.40.   First, the negotiators agreed that there would be limits for the invocation of the security 
exceptions. The Panel refers to the explanation provided at the meeting  by the delegate of the 
United  States  on "a great danger of having too wide an exception … that would permit anything 
under the sun" and the motivation to "take care of real security interests and, and the same time, 
so far as we could, to limit the except ion so as to prevent the adoption of protection for maintaining 
industries under every conceivable circumstance".61 This suggests that the proponents of the text 
did not consider the security exceptions to be limitless. This statement should be read in the  context 
of the explanation by the delegate of the United  States  on the need for "a balance" between providing 
ITO members with "latitude" to determine what their security interests are, while limiting the 
 
59 Report of the 24  July 1947 Meeting, (Exhibit USA -41), p. 26.  
60 See para.  2.7 above.  
61 See para.  2.17 above. This understanding is also confirmed when considering the observation made 
by the delegate of the United  States  at the meeting that the expression "in time of war" was meant to impose 
a limitation concerning primarily the time when an ITO member would be allowed to take action. The delegate 
of the United  States  added that "no one would question the need of a Member, or the right of a Member, to 
take action relating to its security intere sts and to determine for itself … what its security interests are". 
(Report of the 24  July 1947 Meeting, (Exhibit USA -41), p. 20).  WT/DS544/R/Suppl.1  
 
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  circumstances in which they could invoke the secur ity exceptions.62 Notably, the delegate of the 
United  States  specified that the security exceptions were not meant to be "so broad" to apply to 
measures that countries would adopt "under the guise of security, … which really have a commercial 
purpose".63 The Panel considers the exchanges at the above -mentioned meeting, and specifically 
the concerns raised about the possibility of abuse, as an element against interpreting the provision 
as entirely "self -judging" in the sense argued by the United  States .  
2.41.   Second, regarding the possible redress for ITO members affected by measures under the 
security exceptions, the Panel notes the Chairperson's statement that, once the ITO was in 
operation, the atmosphere inside the Organization would have been "the only eff icient guarantee 
against abuses" of the security exceptions. This statement by the Chairperson was offered "[i]n 
defence of the text" following the comment of the delegate of the United  States  on the draft text 
preserving a "proper balance" between an exce ption that is either "too tight" or "broad".64 The Panel 
does not understand the Chairperson to have expressed a legal view on the full range of potential 
recourse in relation to measures taken under the security exceptions, but rather to have offered a 
general consideration on the institutional operation of the ITO based on the specific drafting 
questions raised by delegates at the meeting. In fact, further discussion in the meeting focused on 
the possibility for ITO members affected by the imposition of s ecurity measures to seek some form 
of redress, specifically in light of draft Article  35(2) dealing with consultations and nullification or 
impairment, which provided as follows:  
Article  35 (Consultation – Nullification or impairment ) 
… 
2. If any Member should consider that any other Member is applying any measure, 
whether or not it conflicts with the terms of this Charter, or that any situation exists, 
which has the effect of nullifying or impairing any object of this Charter, the Member or 
Member s concerned shall give sympathetic consideration to such written 
representations or proposals as may be made with a view to effecting a satisfactory 
adjustment of the matter. If no such adjustment can be effected, the matter may be 
referred to the Organiza tion, which shall, after investigation, and, if necessary after 
consultation with the Economic and Social Council of the United Nations and any 
appropriate intergovernmental organizations, make appropriate recommendations; to 
the Members concerned. The Org anization, if it considers the case serious enough to 
justify such action, may authorize a Member or Members to suspend the application to 
any other Member or members of such specified obligations or concessions under this 
Chapter as may be appropriate in the circumstances. If such obligations or concessions 
are in fact suspended. any affected Member shall then be free, not later than sixty days 
after such action is taken, to withdraw from the Organization upon the expiration of 
sixty days from the day on w hich written notice of such withdrawal is received by the 
Organization.65 
2.42.   At the time of the meeting in question, the draft text of the ITO Charter did not yet distinguish 
between violation, non -violation, and situation complaints as did the final agreed t ext of Article  XXIII 
of the GATT  1947. While the discussion confirms the shared understanding among negotiators that 
ITO members affected by security measures could submit non -violation complaints, it does not 
reveal that non -violation complaints were the only available option to seek redress for the imposition 
of security measures. The discussion instead indicates that the security exceptions were not intended 
to be shielded from the application of Article  35, irrespective of its position in the draft text  of the 
ITO Charter. Negotiators explicitly confirmed their understanding that Article  35 would apply to the 
entire draft text of the ITO Charter such that the security exceptions would not be excluded from 
the scope of application of the provisions on con sultation and nullification or impairment as they 
existed at that time. This conclusion is further reinforced by the fact that the provisions on 
consultation and nullification or impairment in the ITO Draft Charter and GATT  1947 evolved to 
 
62 Report of the 24  July 1947 Meeting, (Exhibit USA -41), p. 21; Corrigendum to Report of the 
24 July 1947 Meeting, (Exhibit US A-92). 
63 Report of the 24  July 1947 Meeting, (Exhibit USA -41), p. 21.  
64 Report of the 24  July 1947 Meeting, (Exhibit USA -41), p. 21.  
65 Report of the Drafting Committee of the Preparatory Committee, (Exhibit USA -33), p. 30; see also 
Article  XIX:2 of the dra ft text of the GATT  1947 at the time (Ibid. pp. 76 -77). WT/DS544/R/Suppl.1  
 
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  distinguish betw een violation, non -violation, and situation complaints66, with no explicit carve -out 
from any of these categories for matters arising under the security exceptions.  
2.43.   The applicability of provisions on consultations and nullification or impairment to matters  
arising under the security exceptions is not undermined by the following statement made by the 
delegate of the United  States  at that meeting:  
It is true that an action taken by a Member under Article  94 could not be challenged in 
the sense that it could n ot be claimed that the Member was violating the Charter; but 
if that action, even though not in conflict with the terms of Article  94, should affect 
another Member, I should think that that Member would have the right to seek redress 
of some kind under Article 35 as it now stands. In other words, there is no exception 
from the application of Article  35 to this or any other Article.67 
2.44.   The Panel understands this statement to clarify that actions taken in conformity with the 
provision on security exceptions co uld not be challenged as being in violation of the draft text of the 
ITO Charter, but it would still be possible for ITO members affected by those actions to claim that 
their benefits were nullified or impaired. This statement does not clearly address the possibility that 
an affected ITO member could claim that an action purportedly taken pursuant to Article  94 did not 
meet the requirements laid down in the provision and was thus inconsistent with the draft text of 
the ITO Charter. Therefore, while the exch anges at this meeting indicate that ITO members would 
retain some form of recourse for matters arising under the security exceptions, they do not reflect 
a limitation on the specific procedures or nature of possible review for claims of nullification or 
impairment by measures under the security exceptions.  
2.45.   The Panel further notes the United  States ' citation of the informal summary prepared in late 
1947 by the Negotiating Group of the Preparatory Committee of the United Nations Conference on 
Trade and Employ ment.68 That informal summary reported that, under the security exceptions, ITO 
members would be free to do "whatever they think necessary to protect their security interests 
relating to atomic materials, arms traffic, and wartime or other international em ergencies, and to 
maintain peace according to their obligations under the United Nations Charter".69 The Panel notes 
the informal nature of the document as a relevant factor in  assessing  the value that it should be 
given in the context of an interpretive a nalysis.70 Furthermore, while the summary refers to the 
discretion that ITO members would retain to protect their essential security interests, it also refers 
to the specific subject matter and circumstances covered by the agreed provision in the ITO Draft  
Charter and reflected in the text of the Article  XXI of the GATT  1947. The Panel does not consider 
this to provide clarity on the possible review of invocations of this provision71 or that the provision 
should be treated as "self -judging" in the sense arg ued by the United  States . 
2.46.   Finally, the Panel observes that early drafts of the ITO Charter contained references to 
"justiciable" issues, but such references were not retained as the negotiations continued. Specifically, 
the September 1946 draft text of the  ITO Charter foresaw that questions or differences concerning 
the interpretation of the Charter could be referred to the ITO Conference (where all ITO members 
 
66 The draft text of the GATT circulated in August 1947 already contained the distinction between 
violation, non -violation, and situation complaints. See Article  XXI (Nullification or impairment ), Draft General 
Agreement on Tariffs and Trade, (Exhibit USA -38), pp. 50 -51. 
67 Report of the 24  July 1947 Meeting, (Exhibit USA -41), pp. 26 -27. 
68 See para.  2.29 above.  
69 See para.  2.29 above.  
70 As stated in the foreword of the document, "[t]he purpose of this information paper is to provide for 
the non -technical rea der a summary of the Draft Charter for an [ITO]" that "attempts to restate in simple 
terms the salient features of each Article" with the addition of "[s]hort, informal and unofficial comments … in 
order to indicate the relationship between one part of the  Charter and another or to suggest some of the 
factors which were taken into consideration by the members of the Preparatory Committee during the 
formulation of the Draft." Given the limited purpose of the document, the foreword further refers readers to 
the "full text of the Draft Charter". ( An Informal Summary of the ITO Charter, (Exhibit USA -39), p. ii).  
71 Regarding the provisions in Chapter VIII on "Settlement of Differences – Interpretation", the informal 
summary refers to "three general stages in the settlement of disputes": "[f]irst, consultation between 
members; secondly, reference of the dispute to the ITO; thirdly, reference to the International Court of 
Justice". The informal summary observes parenthetically that "the Preparatory Committee gave on ly a limited 
time to the study of this section and that a full re -examination by the World Trade Conference will be 
desirable." ( An Informal Summary of the ITO Charter, (Exhibit USA -39), p. 34; see also Report of the Second 
Session of the Preparatory Commi ttee, (Exhibit USA -37), p. 166).  WT/DS544/R/Suppl.1  
 
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  would be represented). ITO members could seek review by the International Court of Justice (ICJ) 
of "any justiciable issue" arising out of an interpretation by the Conference of certain provisions 
including those related to security matters.72 The distinction between "justiciable" issues and other 
issues was removed in subsequent drafts after having b een commented upon as "untenable" and 
"unworkable".73 The debate on "justiciable" issues took place in the context of a draft text that 
foresaw a different institutional setting from the one that exists under the WTO covered agreements. 
In that context, th e distinction between "justiciable" and "non -justiciable" issues was not to preclude 
external review but rather concerned which institution would be competent to review the invocation 
of certain provisions of the ITO Charter. Furthermore, both the security  exceptions and the provisions 
on dispute settlement underwent substantial changes in the course of the negotiations leading to 
the final texts of the ITO Draft Charter and GATT  1947. The Panel considers these early debates on 
"justiciable" issues to under score the different institutional backdrop of the ITO negotiations as part 
of the overall guidance that may be drawn from the negotiations of the ITO Charter and the 
GATT  1947 for the interpretive issues in this dispute.  
2.47.   The Panel does not find support in these materials for the "self -judging nature" of 
Article  XXI(b) of the GATT  1994 as contended by the United  States . Accordingly, the analysis of 
these materials confirms, or at least does not undermine, the Panel's interpretation of Article  XXI(b) 
of the GATT  1994.  
3  NEGOTIATIONS  OF THE ITO CHARTER IN 1948  
3.1  Arguments and materials  submitted by the parties  
3.1.  The United  States has submitted materials pertaining to negotiations of the ITO Charter that 
took place in early 1948, thus after the text of the GATT  1947 was finalized and started being 
provisionally applied.74 In submitting these materials, the United  States  argues t hat views expressed 
by the negotiators, including after the conclusion of an agreement, may provide "pertinent evidence 
of the intention of the parties", particularly as the GATT  1947 discussions were integral to the 
negotiations of the ITO Charter.75 
3.2.  China does not provide arguments in relation to this set of materials submitted by the 
United  States . 
3.1.1   9 January  1948 – Report of Working Party of Sub -Committee G of Committee VI on 
Chapter VIII (Settlement of Differences – Interpretation)  
3.3.  The United  States  refers to a report of a Working Party composed of four delegations (Australia, 
India, Mexico, and the United  States ) dated 9  January  1948.76 The Working Party considered several 
suggested alternatives and agreed unanimously on new texts for Article s 89 (Consultation between 
Members) and 90(4) (Reference to the Organization).  
3.4.  The newly suggested text of Article  89 retained a distinction between three cases where an 
ITO member  could seek redress if it considered that the benefits accruing to it under  the Charter 
were being nullified or impaired: (a) the failure of another member to carry out its obligations; (b) 
the application by another member of any measure, whether or not it conflicted with the provisions 
of the Charter; (c) the existence of any o ther situation.77 
 
72 Report of the First Session of the Preparatory Committee, (Exhibit USA -31), Annexure 11 
(United  States  Draft Charter),  Article  76, p. 67.  
73 Report of the Drafting Committee of the Preparatory Committee, (Exhibit USA-33), "General 
Comments" to Article  86, p. 51.  
74 United  States ' first written submission, para.  72. 
75 United  States ' first written submission, para.  72 and fn  70. 
76 United  States ' first written submission, paras.  73-74 (referring to United Nations Confe rence on Trade 
and Employment, Report of the Working Party of Sub -Committee G of Committee VI (Organization) on Chapter 
VIII (9  January  1948), E/CONF.2/C.6/W.30, (Exhibit USA -42), p. 2 ). The Working Party was established within 
Sub-Committee G of Committee  VI on Chapter VIII.  
77 The suggested text of Article  89 read:  
If any Member should consider that any benefit accruing to it directly or indirectly, implicitly or 
explicitly  under any of the  provisions of this Charter other than Article  1 is being nullified or WT/DS544/R/Suppl.1  
 
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  3.5.  The document submitted by the United  States  includes an explanation of the reasons leading 
to the agreement between the four participants to the Working Group:  
After extensive discussion of sub -paragraph (b) of Article  89 it was decided t o allow this 
sub-paragraph to remain as is in the Geneva text. The working party considered that 
this sub -paragraph would apply to the situation of action taken by a Member such as 
action pursuant to Article  94 of the Charter. Such action, for example, in the interest of 
national security in time of war or other international emergency would be entirely 
consistent with the Charter, but might nevertheless result in the nullification or 
impairment of benefits accruing to other Members. Such other Members shou ld, under 
those circumstances, have the right to bring the matter before the Organization, not on 
the ground that the measure taken was inconsistent with the Charter, but on the ground 
that the measure so taken effectively nullified benefits accruing to th e complaining 
Member.78 
3.6.  According to the United  States , this excerpt reflects the intention of the parties that measures 
taken purportedly pursuant to the security exceptions could be subject to non -violation claims, to 
the exclusion of claims of inconsist ency.79 Specifically, the United  States  argues that this excerpt 
confirms that, even after a distinction was introduced between violation and non -violation claims, 
the drafters continued to believe that non -violation claims would be the only available reco urse for 
ITO members affected by the imposition of security measures.80  
3.7.  China does not specifically comment on this document . 
3.1.2   13 January  1948 – Meeting of Sixth Committee: Organization, Sub -Committee on 
Chapter VIII (Settlement of Differences – Interpretation)  
3.8.  At a meeting of the sub -committee dealing with the chapter on settlement of differences and 
interpretation, "[f]ive representatives agreed with the Chairman that action of the type mentioned 
in Article  94 [i.e., the security exceptions prov ision] could not be challenged by recourse to the 
procedures of Chapter VIII".81 According to this view, "[h]owever, any Member which considered 
that any benefit accruing to it being nullified or impaired as specified in Article  89 might invoke the 
procedu res of Chapter VIII in order that compensatory measures might be permitted".82 The 
representative of the United Kingdom stated that his delegation intended to propose an amendment 
to Article  94 that would clarify the relationship between the national secur ity exceptions and the 
potential recourse for affected ITO members .83 Two other representatives expressed doubts on the 
opinion given by the Chairperson.84 The delegations eventually agreed to leave the question of the 
 
impaired, [or that the attainment of any of the objectives set forth in Article  1 is being impeded], 
as a result of  
(a) the failure of another Member to carry out [its] an obligation[s] under this Charter, or  
(b) the application "by  another Member of any measure, whether or not it conflicts with the 
provisions of the Charter, or  
(c) the existence of any other situation[,] the Member may … discussions undertaken. (emphasis 
original)  
(See Report of the Working Party of Sub -Committee G  of Committee VI (Organization) on Chapter VIII, 
(Exhibit USA -42), p. 1)  
78 Report of the Working Party of Sub -Committee G of Committee VI (Organization) on Chapter VIII, 
(Exhibit USA -42), p. 2.  
79 United  States ' first written submission, para.  74. 
80 United  States ' response to Panel q uestion No.  59. 
81 United  States ' first written submission, para.  75; United Nations Conference on Trade and 
Employment , Summary Record of the Third Meeting of the Sub -Committee on Chapter VIII (Settlement of 
Differences – Interpretation) of Committee VI (Organization) (13  January  1948), E/CONF.2/C.6 /W.41, (Exhibit 
USA-43), p. 1.  
82 United  States ' first written submission, para.  75; Third Meeting of the Sub -Committee on Chapter VIII 
(Settlement of Differences – Interpretation) of Committee VI (Organization), (Exhibit USA -43), p. 1.  
83 Third Meeting of the Sub -Committee on Chapter VIII (Settlement of Differences – Interpretation) of 
Committee VI (Organization), (Exhibit USA -43), p. 1.  
84 Third Meeting of the Sub -Committee on Chapter VIII (Settlement of Differences – Interpretation) of 
Committee VI (Organization), (Exhibit USA -43), p. 1.  WT/DS544/R/Suppl.1  
 
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  relationship between Article  94 and t he rules on settlement of differences in Chapter VIII for further 
consideration later.85 
3.9.  The United  States  argues that the views expressed at this meeting, like those in the Working 
Party report discussed in the previous section, confirm the understanding that non -violation 
complaints were intended to be the only available form of redress for invocations of the national 
security exceptions.86  
3.10.   China does not specifically comment on this document . 
3.1.3   16 January  1948 – Amendment to Article  94 proposed by the UK Delegation  
3.11.   The United Kingdom proposed the following amendment to the text of the security exceptions:  
Article  94 – General Exceptions  
Nothing in this Charter shall be construed: …  
(b) to prevent any Member, either singly or with other Members, from takin g any action 
which it considers necessary for the protection of its essential security interests; where 
such action  
(i) relates to fissionable materials or the materials from which they are derived;  
(ii) relates to the traffic in arms, ammunition and implements of war and to such traffic 
in other goods and materials as is carried on directly or indirectly for the purpose of 
supplying a military establishment of the Member or of any other country;  
(iii) is taken, in time of war or other emergency in int ernational relations …  [.]87 
3.12.   This amendment was adopted and is reflected in the final text of the ITO Draft Charter.88 
3.13.   The United Kingdom also proposed the introduction of the following subparagraph 1(d) to the 
text of the security exceptions:  
Nothing in this Charter shall be construed: …  
(d) to prevent a Member from taking any action in connection with any matter which 
has been brought before the United Nations in accordance with the provisions of 
Article  10, 11, or 14 of Chapter IV of the Char ter of the United Nations, provided that 
the matter relates to the maintenance of peace and security or to the avoidance of 
political friction between States, or in accordance with the provisions of Chapter VI of 
the United Nations Charter.89 
3.14.   This proposed  amendment was not adopted.  
3.15.   The United Kingdom finally proposed to add the following paragraph 2 to the text of the 
security exceptions:  
If any action taken by a Member under paragraph 1 of this Article  nullifies or impairs 
any benefit accruing to another Member directly or indirectly the procedure set forth in 
 
85 Third Meeting of the Sub -Committee on Chapter VIII (Settlement of Differences – Interpretation) of 
Committee VI (Organization), (E xhibit USA -43), p. 1.  
86 United  States ' first written submission, para.  75. 
87 United  States ' first written submission, para.  76 and fn  77; United Nations Conference on Trade and 
Employment, Sub -Committee I of Committee VI (Organization), Amendment to Articl e 94 proposed by the UK 
Delegation (16  January  1948), E/CONF.2/C.6/W.48, (Exhibit USA -44), p. 1.  
88 United  States ' first written submission, fn  77; United Nations Conference on Trade and Employment, 
Final Act and Related Documents (April 1948), (Exhibit USA -45), pp. 92 -93. 
89 Amendment to Article  94 proposed by the UK Delegation, (Exhibit USA -44), pp. 1 -2. WT/DS544/R/Suppl.1  
 
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  Chapter VIII of this Charter shall apply and the Organization may authorize such other 
Member to suspend the application to the Member taking action of such obligations or 
concessions under or pursua nt to this Charter as the Conference deems appropriate; 
provided that where the action is taken under paragraph 1(d) of this Article  the 
procedure set forth in Chapter VIII of this Charter shall not apply until the United Nations 
has made recommendations o n or otherwise disposed of the matter.90 
3.16.   This proposed amendment was not adopted.  
3.17.   According to the United  States , the proposed paragraph 2, although "unnecessary" in light of 
the existing text, would have made "more explicit" the understanding that securit y actions could not 
be reviewed for their consistency with the Charter, but only for the nullification or impairment 
caused.91  
3.18.   China does not specifically comment on this document . 
3.1.4   17 January  1948 – Meeting of Sub -Committee I ( Article  94), Sixth Committee : 
Organization  
3.19.   On 17  January  1948, a meeting of Sub -Committee I ( Article  94) of the Sixth Committee 
(Organization) was held to discuss, inter alia , the proposal tabled by the United Kingdom. The 
sub-committee provisionally agreed to the revised text of par agraphs 1(a) and (b).92  
3.20.   With regard to the United Kingdom's proposal of a new subparagraph 1(d), the representative 
of Czechoslovakia argued that, if those matters were to be discussed further, the question of 
including that sort of language should be ref erred to the United Nations Security Council.93 The 
delegate of India suggested that the language of the proposed subparagraph 1(d) be modified in 
order to qualify the word "action" as "relating to the subject matter covered by the present Charter", 
thus d istinguishing "economic" actions from "political or military" ones.94 The representative of India 
doubted that the taking of economic action could be regarded as necessarily infringing Article  2 of 
the United Nations Charter.95 
3.21.   Regarding the proposal for a  paragraph  2, the representative of the United  States  commented 
in a preliminary manner that that it was "unnecessary" to have the first five lines of the proposed 
new text of the paragraph, as they would have been a repetition of paragraph (b) of Article  89 
concerning non -violation claims.96 The delegate of the United  States  also expressed some 
reservations regarding the expression "until the United Nations has … otherwise disposed of the 
 
90 Amendment to Article  94 proposed by the UK Delegation, (Exhibit USA -44), p. 2.  
91 United  States ' first written submission, para.  77. 
92 The revised text read:  
Nothing in this Charter shall be construed  
(a) to require a Member to furnish any information the disclosure of which it considers contrary 
to its essential security interests; or  
(b) to prevent a Member from taking, either singly o r with other states, any action which it 
considers necessary for the protection of its essential security interests (…)  
(See United Nations Conference on Trade and Employment, Sub -Committee I (Article  94) of Committee 
VI (Organization), Notes of the Fourth  Meeting, E/CONF.2/C.6/W.60 (17  January  1948), (Exhibit USA -47), p. 
1). 
93 United Nations Conference on Trade and Employment, Sub -Committee I (Article  94) of Committee VI 
(Organization), Notes of the Fourth Meeting, (Exhibit USA -47), p. 2.  
94 United Nations Conference on Trade and Employment, Sub -Committee I (Article  94) of Committee VI 
(Organization), Notes of the Fourth Meeting, (Exhibit USA -47), p. 2.  
95 United Nations Conference on Trade and Employment, Sub -Committee I (Article  94) of Committee VI 
(Organiz ation), Notes of the Fourth Meeting, (Exhibit USA -47), p. 2.  
96 The delegate of the United  States  referred to the following portion of the proposed new paragraph 2: 
"If any action taken by a Member under paragraph 1 of this Article  nullifies or impairs any benefit accruing to 
another Member directly or indirectly the procedure set forth in Chapter VII I of this Charter shall apply and the 
Organization may authorize such other Member to suspend the application to the Member taking action of such 
obligations or concessions under or pursuant to this Charter as the Conference deems appropriate".  WT/DS544/R/Suppl.1  
 
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  matter", as it might have been difficult to determine when the Unite d Nations had "otherwise 
disposed of" a matter.97 
3.22.   The representative of the United Kingdom noted that he could agree to having the applicability 
of the provisions on dispute settlement in Articles 89 and 90 written into the record of the discussion 
rather than incorporated in the text of the security exce ptions in Article  94.98 He further observed 
that the proviso suggested in the proposed paragraph 2 was not intended to exclude the ITO from 
participation in the resolution of a matter after the United Nations had acted.99 He indicated that the 
language of the proviso could be improved to make more clear at what stage the procedures on the 
settlement of differences under the ITO Charter would come into operation.100 
3.23.   The representative of India expressed doubts about whether, under the proposed 
paragraph  2, "the bona fides of an action allegedly coming within [the provision on security 
exceptions] could be questioned".101 The representative of India understood that the intention was 
to limit the possibility of "counteraction" against security measures to "compensatory action and not 
to include 'punitive action '". The representative of India indicated that his delegation wo uld be 
prepared to consider the proposed new paragraph.102 
3.24.   The United  States  observes that the representative of India, "when discussing nullification or 
impairment claims" as remedies for the invocation of security exceptions, expressed doubts about 
whethe r the good faith of an action purportedly coming within the provision on security exceptions 
could be put into question.103 The United  States  further notes that reference to nullification or 
impairment in the provision on security exceptions would have been  "unnecessary", and refers to 
statements made by the representative of the United  States  at the above -mentioned meeting.104  
3.25.   China does not specifically comment on this document . 
3.1.5   28 February  1948 – Meeting of Sub -Committee I ( Article  94), Sixth Committee: 
Organization  
3.26.   At a meeting of Sub -Committee I ( Article  94) of the Sixth Committee (Organization) held on 
28 February  1948, the delegations agreed to add the following paragraph to the notes from the 
previous meeting:  
The representative of the United Kingdom Delegation, as the proposer of the new article, 
was asked whether in his opinion it would permit a Member, in the defined 
circumstances, to take unilateral economic sanctions. He replied that if this article were 
included in the Charter, the Charter would neither permit, nor condemn, nor pass any 
judgment whatever on, unilateral economic sanctions.105  
3.27.   According to the United  States , this statement by the representative of the United Kingdom 
was made in relation to the revised security exceptions provision i n the ITO Draft Charter, 
particularly with regard to the amended chapeau  of the provision.106  
 
97 United Na tions Conference on Trade and Employment, Sub -Committee I (Article  94) of Committee VI 
(Organization), Notes of the Fourth Meeting, (Exhibit USA -47), p. 3.  
98 United Nations Conference on Trade and Employment, Sub -Committee I (Article  94) of Committee VI 
(Organization), Notes of the Fourth Meeting, (Exhibit USA -47), p. 3.  
99 United Nations Conference on Trade and Employment, Sub -Committee I (Article  94) of Committee VI 
(Organization), Notes of the Fourth Meeting, (Exhibit USA -47), p. 3.  
100 United Nations Conference on Trade and Employment, Sub -Committee I (Article  94) of Committee VI 
(Organization), Notes of the Fourth Meeting, (Exhibit USA -47), p. 3.  
101 United Nations Conference on Trade and Employment, Sub -Committee I (Article 94) of Committee V I 
(Organization), Notes of the Fourth Meeting, (Exhibit USA -47), p. 3.  
102 United Nations Conference on Trade and Employment, Sub -Committee I (Article  94) of Committee VI 
(Organization), Notes of the Fourth Meeting, (Exhibit USA -47), p. 3.  
103 United  States ' first written submission, para.  76. 
104 United  States ' first written submission, para.  77. 
105 United Nations Conference on Trade and Employment, Sub -Committee I (Article  94) of Committee VI 
(Organization), Notes of the Eight Meeting, E/CONF.2/C.6/W.123 (1  March 1948), (Exhibit USA -46), p. 1.  
106 United  States ' first written submission, para.  76, fns  77 and 78 (referring to Amendment to Article  94 
proposed by the UK Delegation, (Exhibit USA -44); United Nations Conference on Trade and Employment, Final WT/DS544/R/Suppl.1  
 
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  3.28.   China does not specifically comment on this document . 
3.2  Assessment  by the Panel  
3.29.   As explained above, Article  32 of the Vienna  Convention  refers to preparatory work a nd the 
circumstances of the conclusion of a treaty but does not exhaustively define the supplementary 
means of treaty interpretation to which recourse may be had.107 The discussions that took place in 
1948 relate to a different treaty than the GATT  1947 and post-date the finalization of the text of the 
GATT  1947, including Article  XXI thereof, which was transposed into the GATT  1994 with the same 
formulation. At the same time, both the negotiations of the GATT  1947 and the discussions of 1948 
occurred in the  broader context of the negotiations of the ITO Charter. Within that broader context, 
the terms of the security exceptions in Article  XXI of the GATT  1947 had already been agreed 
following proposals and discussions addressed by the Panel in the previous se ction of this Appendix. 
In light of the chronology of the events under review as well as the institutional setting in which they 
took place, the Panel considers discussions during negotiations of the ITO Charter taking place in 
1948 to be of relatively lim ited value for the purposes of interpreting Article  XXI of the GATT  1994 
in relation to the contested issues in this dispute. The Panel will weigh the results of its assessment 
of the materials and arguments submitted against the backdrop of this consideration and the limited 
purposes under Article  32 of the Vienna  Convention  for having recourse to supplementary means of 
interpretation.  
3.30.   The Panel will address the materials outlined above in their chronological sequence with 
specific regard to the United  States ' contention that the negotiators intended non -violation 
complaints t o be the only available remedy in response to the invocation of the security exceptions 
under the ITO Draft Charter and the GATT  1947.  
3.31.   Concerning the Report of the Working Party of Sub -Committee G of Committee VI on Chapter 
VIII (Settlement of Differences  – Interpretation) dated 9  January  1948108, the Panel notes that the 
Working Party considered that the provision on non -violation complaints would apply to actions taken 
pursuant to the security exceptions. In those situations, the Working Party indicated t hat such 
actions would be consistent with the ITO Draft Charter but could still nullify or impair the benefits 
accruing to other ITO members. The Working Party expressed the understanding that, in those 
circumstances, affected ITO members could not claim t he ITO -inconsistency of the contested actions 
but could nevertheless resort to non -violation complaints. In the Panel's view, this statement does 
not necessarily reveal that non -violation complaints would be the only available remedy for the 
invocation of the security exceptions. The reference to actions "consistent" with the ITO Draft Charter 
could also suggest that actions meeting the requirements of the security exceptions would be 
consistent with the Charter but could still be subject to non -violation c omplaints. Furthermore, the 
statement reflects the views of four delegations only. In any event, the understanding arrived at by 
those four delegations refers to a revision of the dispute settlement provisions different from the 
text of Article  XXIII of th e GATT  1947 that was concluded in October 1947. Absent an explicit 
connection being made in the text of the Working Party Report in that regard, it is doubtful that any 
understanding arrived at by four delegations in relation to the ITO Draft Charter would  also affect 
the GATT  1947, which was already applied on a provisional basis at the time of the discussion.  
3.32.   Regarding the meeting of the Sub -Committee on Chapter VIII (Settlement of Differences – 
Interpretation) of the Sixth Committee (Organization), dated  13 January  1948109, the minutes show 
an agreement of five delegations with the Chairperson that actions of the type mentioned in the 
security exceptions of the ITO Draft Charter could not be challenged by recourse to the procedures 
of the Chapter on the "S ettlement of Differences". Those delegations also agreed that affected 
members could still resort to the procedures on compensatory measures. However, no consensus 
could be reached on this point, and the minutes clearly mention that two delegates expressed  doubts 
on the position put forward by the Chairperson. Eventually, the sub-committee agreed to leave the 
question of the relationship between the security exceptions and the rules on dispute settlement for 
further consideration at a later point in time. T hus, although some delegations expressed the view 
that action taken pursuant to the security exceptions could not be subject to dispute settlement 
 
Act and Rela ted Documents, (Exhibit USA -45); and United Nations Conference on Trade and Employment, Sub -
Committee I (Article  94) of Committee VI (Organization), Notes of the Eight Meeting, (Exhibit USA -46)). 
107 See para.  2.33 above.  
108 See section 3.1.1 above.  
109 See section 3.1.2 above.  WT/DS544/R/Suppl.1  
 
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  procedures, the minutes of the meeting clearly show that there was no agreement on this point, and 
that two r epresentatives expressed doubts on this specific aspect.  
3.33.   In its proposed amendments to the security exceptions submitted on 16  January  1948, the 
United Kingdom sought to introduce language allowing application to the ITO for authorization to 
suspend oblig ations or concessions for an equivalent amount of any benefit under the ITO Draft 
Charter that was nullified or impaired by actions under the security exceptions.110 The proposal 
further sought to temporarily exclude certain measures adopted in pursuance of Chapter IV of the 
Charter of the United Nations from the applicability of the provisions on dispute settlement, until the 
United Nations had made recommendations o r had otherwise disposed of the matter.111 The Panel 
notes that the proposal did not provide that the only option of ITO members affected by the 
application of security measures would be to suspend or withdraw concessions or obligations for an 
equivalent am ount. Furthermore, the proposal sought to exclude the applicability of the provisions 
of dispute settlement only to a subset of measures, and only temporarily. The proposal, moreover, 
was not ultimately adopted.  
3.34.   In relation to the meeting of Sub -Committee  I of the Sixth Committee held on 
17 January  1948, the Panel notes that the delegate of India expressed doubts about whether "the 
bona fides of an action allegedly coming within [the security exceptions] could be questioned". The 
Panel does not consider th is statement made by one representative to shed light on the issue of the 
reviewability of the security exceptions. The Panel further notes that the delegate of the 
United  States  considered it "unnecessary" to include reference to the notions of nullificat ion or 
impairment in the text of the provision of security exceptions, on the grounds that it would amount 
to a repetition of the content of the provision on dispute settlement. In the Panel's view, this 
statement is not dispositive of the question of whet her non -violation complaints were considered by 
ITO negotiators to be the only available remedy to the invocation of the security exceptions under 
the ITO Draft Charter. The Panel also notes that other passages from the minutes of the above -
mentioned meeti ng do not provide relevant clarification as to the interpretive questions raised in 
this dispute.  
3.35.   The Panel further refers to the statement of the representative of the United Kingdom, made 
at a meeting of Sub -Committee I of the Sixth Committee on 28  Febru ary 1948, that "if this article 
were included in the Charter, the Charter would neither permit, nor condemn, nor pass any judgment 
whatever on, unilateral economic sanctions".112 It is questionable whether this statement was made 
in relation to the entire r evised security exceptions provision in the ITO Draft Charter or, as the 
United  States  contends, with specific regard to the chapeau  of the provision, which was slightly 
amended compared to the formulation in Article  XXI of the GATT  1947.113 In this regard,  the 
statement does not explicitly refer to the revised chapeau  of the security exceptions in the ITO Draft 
Charter but rather the entire "article". The Panel notes from the minutes of the previous meeting 
that the discussion revolved around three specific issues, none of which concerned the revised 
chapeau  of the sec urity exceptions or the reviewability of the invocation of the provision.114 
Moreover, the Panel notes that this statement was made by one delegation only and was limited to 
"unilateral economic sanctions" without further clarification. Accordingly, the Pan el does not find 
clear interpretive guidance in this statement absent a clear link to the contested issues in this dispute 
and without any indication of the views of other delegations.  
 
110 See para.  3.14 above.  
111 See para.  3.14 above.  
112 See para.  3.25 above. This statement was added to the minutes from a previous meeting, which 
were not submitted by either party in this dispu te. The previous meeting of the Sixth Committee was held on 
27 February  1948. (See United Nations Conference on Trade & Employment, Sixth Committee, Notes of the 
Seventh Meeting ( Article  94), E/CONF.2/C.6/W.121 (27  February  1948) ). 
113 See United  States ' first written submission, para.  76, fn  77. 
114 Specifically, the minutes of the 27  February  1948 meeting report a discussion on three issues 
relating to Article  94: (i)  the provisional agreement already reached by the negotiators on the addition of a 
paragraph dealing with peace treaties and special regimes; (ii)  the possibility to amend the wording of 
subparagraph 1(c) of Article  94 dealing with inter governmental  agreements made by or for a military 
establishment; and (iii)  the possibility to includ e a provision in the text of the security exceptions on temporary 
arrangements between India and Pakistan pending the establishment of permanent trade relations. (See 
United Nations Conference on Trade & Employment, Sixth Committee, Notes of the Seventh Me eting 
(Article  94), E/CONF.2/C.6/W.121 (27  February  1948) ). WT/DS544/R/Suppl.1  
 
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  3.36.   To summarize, the materials indicate that, after the text of the GATT  1947 was finalized and 
the agreement was already applied on a provisional basis, some delegations at the ITO Charter 
negotiations expressed the understanding that actions purportedly taken under the security 
exceptions could be subject to non -violation comp laints. However, the discussions in 1948 do not 
show that there was a shared understanding by all negotiators that non -violation complaints would 
be the only form of redress for invocations of the security exceptions to the exclusion of claims of 
inconsist ency. In any event, neither the ITO Draft Charter nor the GATT  1947 contain any explicit 
derogation precluding claims of inconsistency for measures taken pursuant to the security 
exceptions. Furthermore, nowhere do the materials reviewed refer explicitly t o Article  XXI of the 
GATT  1947, but only to the corresponding provision in the ITO Draft Charter.  
3.37.   Based on the foregoing, the Panel does not find support in these materials for the contention 
by the United  States  that measures taken under the security exce ptions could only be subject to 
non-violation claims to the exclusion of claims of inconsistency. This conclusion is consistent with 
the Panel's understanding that Article  XXI(b) of the GATT  1994 is not "self -judging" in the sense 
argued by the United  States. Accordingly, the analysis of these materials confirms, or at least does 
not undermine, the Panel's interpretation of Article  XXI(b) of the GATT  1994. 
4  INTERNAL DOCUMENTS OF THE US DELEGATION AT THE ITO/ GATT  1947  
NEGOTIATIONS  
4.1  Arguments and materials  subm itted by the parties  
4.1.  The United  States  submits various internal documents of the US delegation at the negotiations 
of the ITO Charter and the GATT  1947 and notes that the panel in Russia – Traffic in Transit  referred 
to a study discussing these documents.115 While submitting these documents as part of its arguments 
on the interpretation  of Article  XXI(b) of the GATT  1994, the United  States  argues that the materials 
referred to by the panel in Russia – Traffic in Transit are not "negotiating history" within t he meaning 
of the Vienna  Convention .116 The United  States  maintains that those materials were confidential at 
the time of the negotiations, and that availability to all relevant parties before and during a 
negotiation is a relevant factor to determine wheth er certain materials are part of the "negotiating 
history", or other supplementary means of interpretation under Article  32 of the 
Vienna  Convention .117 The United  States  thus holds that it would be legal error to consider internal 
documents of the US deleg ation at the ITO Charter and GATT  1947 negotiations as preparatory work 
constituting supplementary means of interpretation.118 Nevertheless, the United  States  submits that, 
when reviewed, the above -mentioned materials demonstrate that the US negotiators and other ITO 
negotiating parties sought to exclude essential security matters from scrutiny in international fora 
focused on trade.119 The United  States  is thus  of the view that, even if these materials were to be 
taken into account, they would further confirm that Article  XXI(b) of the GATT  1994 is 
"self-judging".120 
4.2.  China argues that internal documents of the US delegation at the ITO Charter and GATT  1947 
negoti ations are properly considered as circumstances of the conclusion of the GATT  1947.121 
According to China, these documents are a good example of how a unilateral act can help to discern 
the common intention of the parties.122 While China does not consider th e historical background 
offered by these documents to be necessary for a proper understanding of the negotiating history 
of the GATT  1947, it argues that it would be appropriate for the Panel to take these documents into 
account in its evaluation of the su pplementary means for the interpretation of Article  XXI of the 
GATT  1994.123 
 
115 United  States ' first written submission, para.  80. 
116 United  States ' first written submission, para.  81. 
117 United  States ' first written submission, paras.  84-86; response to Panel question No.  63. 
118 United  States ' first written submission, para.  87. 
119 United  States ' first written submission, para.  89. 
120 United  States ' first written submission, para.  82. 
121 China's response to Panel question No.  63. 
122 China's response to Panel question No.  63. See also China's second written submission, para.  111. 
123 China's response to Panel question No.  63. WT/DS544/R/Suppl.1  
 
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  4.1.1   US Department of State, Memorandum of Conversation on "Security Exceptions to 
proposed ITO Charter" (17  June  1946)  
4.3.  A memorandum dated 17  June 1946 summari zes a discussion on the se curity exceptions 
among representatives of different branches and agencies within the government of the 
United  States  prior to the submission of the United  States ' proposal for a draft text of the ITO 
Charter.124 The following participants took part in the discussion: General Royall (Under Secretary 
of War); Mr Kenney (Deputy to the Assistant Secretary of the Navy); Mr Deupree (Army -Navy 
Munitions Board); Mr Neff (Department of War); Mr Clayton (Assistant Secretary of State); and Mr 
Wilcox (Head of the Offic e of International Trade Policy at the Department of State).125 
4.4.  General Royall raised the concern that the proposed ITO Charter would make it impossible to 
impose restrictions on the exportation of strategic raw materials or scrap materials essential for 
security purposes, or to prevent enemies from obtaining United  States ' supplies of such materials. 
General Royall made it clear that the army desired to have a "free hand" to stop shipments of 
materials or technology "at any time without rega rd to whether or not there was an imminent threat 
of war".126 Mr Deupree was concerned by the phrase "imminent threat of war" and suggested a 
change in wording in order to avoid serious diplomatic repercussions.127  
4.5.  Mr Clayton addressed the concerns of the m ilitary services, noting the importance of the 
objectives sought by the "trade program ", including the preservation of peace and the protection of 
national security.128 The representatives of the services acknowledged these points but continued to 
argue for  a "free hand in controlling international transactions for military purposes".129 Mr Wilcox 
assured the participants that the Department of State intended to make all necessary provisions to 
safeguard national security, in a way that would not give "carte blanche to other countries to violate 
their commitments with respect to commercial policy under the cloak of a sweeping security 
exception".130  
4.6.  At the end of the meeting, the participants agreed that Mr Neff and Mr Wilcox would work on 
the possibility to d evelop some wording that would meet the concerns of the military services without 
invalidating the Charter or necessitating the abandonment of the "trade program ".131 
4.7.  The United  States  notes from the summary of this discussion that military stakeholders sought 
a provision on security exceptions that would allow the United  States  to take measures "without 
regard to whether or not there was an imminent threat of war".132  
4.8.  China does not sp ecifically comment on this document . 
4.1.2   US Delegation , Economic Disarmament (Draft ) (1946)  
4.9.  This document contains a reaction, unattributed to a specific source, to the argument raised 
by military services that commitments in the ITO Charter would constitute e conomic disarmament, 
and that responsibility for economic disarmament was properly placed under the jurisdiction of the 
Security Council of the United Nations, where certain nations held veto rights.133 The document 
 
124 US Department of State, Memorandum of Conversation on "Security Exceptions to proposed ITO 
Charter" (17  June 1946), (Exhibit USA -52). 
125 US Department of State, Memorandum of Conversation on "Security Exceptions to proposed ITO 
Charter", (Exhibit USA -52), p. 1.  
126 US Department of State, Memorandum of Conversation on "Security Exceptions to proposed ITO 
Charter", (Exhibit USA -52), p. 1.  
127 US Department of State, Memorandum of Conversation on "Security Exceptions to proposed ITO 
Charter", (Exhibit USA -52), p. 2.  
128 US Department of State, Memorandum of Conversation on "Security Exceptions to proposed ITO 
Charter", (Exhibit USA -52), p. 2.  
129 US Department of State, Memorandum of Conversation on "Security Exceptions to proposed ITO 
Charter", (Exhibit USA -52), p. 2.  
130 US Department of State, Memorandum of Conversation on "Security Exceptions to proposed ITO 
Charter", (Exhibit USA -52), p. 2.  
131 US Department of State, Memorandum of Conversation on "Security Exceptions to proposed ITO 
Charter", (Exhibit USA -52), p. 2.  
132 United  States ' first written submission, para.  90. 
133 US Delegation, Economic Disarmament (Draft), (Exhibit USA -53), p. 1.  WT/DS544/R/Suppl.1  
 
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  reports the view that the argument whereb y any aspect of military security, no matter how remote, 
would override all considerations of "economic and social well -being" was "wholly at variance" with 
the United  States ' established foreign policy and the Charter of the United Nations.134 The document  
continues with the affirmation that international economic cooperation, including the reduction of 
trade barriers, was a "major goal" of the United  States ' foreign policy.135 
4.10.   According to the United  States , this document shows how, in early internal discus sions, the 
view was held that a broad exception whereby military security interests would override all 
considerations of social and economic wellbeing was inconsistent with the established foreign policy 
of the United  States  and with the Charter of the Uni ted Nations.136  
4.11.   China does not specifically comment on this document . 
4.1.3   US Delegation , Letter from Mr Coppock to Mr Wilcox (3  July 1946)  
4.12.   This document is an internal US government memorandum from Mr Coppock (Department of 
State) to Mr Wilcox on "National Sec urity Provisions in the Draft Charter".137 The memorandum 
recalls the diverging positions within the US delegation between the military branch and the 
Department of State, the former advocating for an exemption for any measure that a country 
deemed essentia l to its national defence, and the latter being concerned with the risk that the wide 
use of a broad exception would nullify much of the ITO Charter.138 
4.13.   The memorandum suggests a compromise along "procedural" instead of "substantive lines", 
by "assigning to  some body, presumably international, probably the Executive Board of the ITO or 
the Security Council (or some sub -group of it), the task of granting exceptions to the Charter 
provisions on the grounds of national defense".139 In support of the proposed sol ution, the 
memorandum outlines two additional considerations: (i)  any rule written in the Charter would call 
for interpretation "unless the unilateral assertions of a particular country that their restrictive 
measures are essential to their national defens e are accepted at face value"; (ii)  the difficulty "to 
write a rule that is general enough to cover the rather wide variety of intended circumstances and 
yet narrow enough to restrain abuses".140  
4.14.   The memorandum assumes that interpretations of the invocation of the security exceptions 
would need to be made, and therefore proposes to "face squarely" the question of whether the 
Executive Board of the ITO would be the proper body to do so.141 The memorandum suggests the 
option of the Executive Board act ing in the first instance, with the possibility that any decision be 
appealed to the Security Council of the United Nations or a committee thereof.142 
4.15.   The United  States  notes that this "procedural solution" was included in the draft text of the 
ITO Charter that the United  States  presented to other delegations in September 1946.143  
4.16.   China does not specifically comment on this document . 
4.1.4   US Delegation, Minutes of the Delegation Meeting (2  July 1947)  
4.17.   This document reproduces the minutes of a meeting of the US delegation held in Geneva on 
2 July 1947 in the context of the second meeting of the Preparatory Committee of the United Nations 
 
134 US Delegation, Economic Disarmament (Draft), (Exhibit USA -53), p. 1.  
135 US Delegation, Economic Disarmament (Draft), (Exhibit USA -53), p. 1.  
136 United  States ' first written submission, para.  91. 
137 US Delegation,  Letter dated 3  July 1946 from Mr Coppock to Mr Wilcox on "National Security 
Provisions in the Draft Charter", (Exhibit USA -54). 
138 US Delegation, Letter from Mr Coppock to Mr Wilcox, (Exhibit USA -54), p. 1.  
139 US Delegation, Letter from Mr Coppock to Mr Wil cox, (Exhibit USA -54), p. 1.  
140 US Delegation, Letter from Mr Coppock to Mr Wilcox, (Exhibit USA -54), pp. 1 -2. 
141 US Delegation, Letter from Mr Coppock to Mr Wilcox, (Exhibit USA -54), p. 2.  
142 US Delegation, Letter from Mr Coppock to Mr Wilcox, (Exhibit USA -54), p. 2.  
143 United  States ' first written submission, para.  93 (referring to Report of the First Session of the 
Preparatory Committee, (Exhibit USA -31), Annexure 11 (United  States  Draft Charter) ). WT/DS544/R/Suppl.1  
 
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  Conference on Trade and Employment.144 The discussion notably revolved around the security 
exceptions145 concerning a proposal by  Mr Neff for another draft provision with the following text:  
Article  94 
General Exceptions to the Whole Charter  
1. Without limiting the generality of any other exception or qualification, none of the 
obligations of this Charter shall apply to any measure or agreement:  
a. Relating to fissionable materials or their source materials ; 
b. Relating to the traffic in arms, ammunition and implements of war and to such traffic 
in other goods and materials as is carried on, directly or indirectly , for the purpose of  
supplying a military establishment;  
c. In time of war or other emergency in international relations, relating to the protection 
of its [essential] security interests;  
d. Undertaken in pursuance of obligations under the United Nations Charter for the 
maint enance or restoration of international peace and security.  
2. Notwithstanding any provision of the Charter, no Member shall have to furnish any 
information in any report required by, or pursuant to, the Charter the furnishing of 
which will be contrary to i ts national security.  
3. The provisions of Article  86 relating to the interpretation and settlement of disputes 
shall not apply to paragraphs 1 and 2 of this Article  but each Member shall have 
independent power of interpretation.146 
4.18.   According to the minutes  of the meeting, the draft provoked "considerable discussion".147 
Concerning the expression "[w]ithout limiting the generality of any other exception or qualification" 
in paragraph 1, several members of the delegation raised doubts about whether it was nece ssary to 
achieve the objective sought. Mr Catudal (Department of State) pointed out that, as a matter of law, 
the clause in question was "unnecessary" and added nothing to the draft text of the security 
exceptions proposed by Mr Kellogg (Department of Stat e), which read in its introductory clause: 
"Nothing in this Charter shall be construed to prevent the adoption or enforcement by any Member 
of any measure which it may deem necessary …".148 According to Mr Catudal, Mr Kellogg's draft 
 
144 US Delegation, Second Meeting of the United Nations Preparatory Committee for the International 
Conference on Trade and Employment, Minutes of the Delegation Meeting (2  July 1947), (Exhibit USA -48). 
145 The security exceptions were discussed also earlier in the meeting based on a proposal by Mr Neff, 
which wa s rejected with a unanimous vote of the US delegation, to add the words "directly or indirectly" to 
Article  94(1)(b) as follows: "… relating to the traffic in arms, ammunition and implements of war and to such 
traffic in other goods and materials as is car ried on directly or indirectly  for the purpose of supplying a military 
establishment." US Delegation, Minutes of the Delegation Meeting (2  July 1947), (Exhibit USA -48), p. 5 
(emphasis added). In support of the proposal, Mr Neff argued that this language wo uld have been in line with a 
legislative proposal for the control of traffic in arms and implements of war that had been submitted to the 
Congress of the United  States  around the same time. Moreover, Mr Neff added that the proposed wording was 
"dictated by  considerations to give the US Government the widest possible latitude in dealing with national 
security objectives". The minutes report that the proposal "provoked sharp discussion". Mr Evans (Department 
of Commerce) replied that the proposal was "unneces sary", as the United  States  already enjoyed ample 
latitude to meet any contingency under the wording as it was at that time. Mr Leddy (Department of State), Mr 
Rubin (legal advisor for the delegation), and Mr Bronz (Department of Treasury) argued "with equ al fervor" 
against the inclusion of the proposed wording. Mr Wilcox held that the addition of the proposed words would 
have been "equally destructive" of the purpose of the Charter as the amendments proposed by other countries 
were designed to eliminate co ntrol over the use of quantitative restrictions. ( US Delegation, Minutes of the 
Delegation Meeting (2  July 1947), (Exhibit USA -48), p. 5). Eventually the phrase "directly or indirectly" was 
included in the final formulation of Article  XXI(b)(ii) of the GATT 1947 and Article  99(1)(b)(ii) of the ITO Draft 
Charter.  
146 US Delegation, Minutes of the Delegation Meeting (2  July 1947), (Exhibit USA -48), p. 10.  (emphasis 
original)  
147 US Delegation, Minutes of the Delegation Meeting (2  July 1947), (Exhibit USA -48), p. 6. 
148 US Delegation, Minutes of the Delegation Meeting (2  July 1947), (Exhibit USA -48), pp. 6 and 9.  WT/DS544/R/Suppl.1  
 
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  covered "[e]very possib le contingency involving the national security of the United  States ".149 Mr 
Rubin, Mr Brown (Department of State), Mr Leddy, and Mr Evans agreed with Mr Catudal.150  
4.19.   The United  States  notes that in internal discussions, some government stakeholders sought 
to make the "self -judging" nature of the national security exception even more explicit.151 The 
United  States  further highlights that this proposal tabled by a military representative included 
language that the provisions on dispute settlement would not apply to the security exceptions, 
leaving to the ITO members concerned the "independent power of interpretation ".152 According to 
the United  States , the panel in Russia – Traffic in Transit  erroneously concluded that the US 
delegation rejected Mr Neff's proposals based on a view that "the risk of abuse by some countries 
outweighed concerns regarding the scope of act ion left to the United  States  by the Charter".153 
Instead, the United  States  maintains that the suggestions were rejected on the grounds that they 
were deemed "unnecessary", as the majority of the delegation was of the view that the existing text 
adequately  preserved the United  States ' freedom of action.154  
4.20.   China does not specifically comment on this document . 
4.1.5   US Delegation, Minutes of the Delegation Meeting (4  July 1947)  
4.21.   Further to a request made by Mr Wilcox at a previous meeting, Mr Rubin submitted a new 
draft article on "general exceptions"155 with the following text:  
Chapter IX  
Article  
General Exceptions  
[Without limitation of any other exceptions or qualification] Nothing in this Charter shall 
be construed to compel any Member to furnish any information the furnishing of which 
it considers contrary to its essential security interests , or to prevent the adoption or 
enforcement by any Member of any measure or agreement  which it may [deem] 
consider to be  necessary and to relate to : 
a) [Relati ng to] Fissionable materials or their source materials ; 
b) [Relating to] The traffic in arms, munition and implements of war and to such traffic 
in other goods and materials as is carried on for the purpose of supplying a military 
establishment;  
c) In time  of war or other emergency in international relations [relating to] the 
protection of its essential security interests;  
d) [Undertaken] Undertakings in pursuance of obligations under the United Nations 
Charter for the maintenance of international peace and  security.  
___ 
 
149 US Delegation, Minutes of the Delegation Meeting (2  July 1947), (Exhibit USA -48), p. 6.  
150 US Delegation, Minutes of the Delegation Meeting (2  July 1947), (Exhibit USA -48), p. 6.  
151 United  States ' first written submission, para.  97. 
152 United  States ' first written submission, para.  97; US Delegation, Minutes of the Delegation Meeting 
(2 July 1947), (Exhibit USA -48), p. 10.  
153 United  States ' first written submission, para.  98 (citing Panel  Report , Russia – Traffic in Transit , 
paras.  7.90-7.91).  
154 United  States ' first written submission, para.  98. 
155 US Delegation, Second Meeting of the United Nations Preparatory Committee for the International 
Confer ence on Trade and Employment, Minutes of the Delegation Meeting (4  July 1947), (Exhibit USA -56), p. 
2. WT/DS544/R/Suppl.1  
 
- 39 - 
 
  N. B. The brackets indicate changes from the original draft submitted by Mr Neff. For 
coy of Mr Neff's original draft see minutes of July  2, 8 p.m. meeting.156 
4.22.   Among the issues discussed at the meeting157, there was a request by Mr Wilcox to c hange 
the phrase "and to relate to" at the end of the introductory clause of the provision with the words 
"relating to".158 Mr Rubin replied that he had discussed this issue with Mr Neff, who "objected 
vigorously" to the change.159 According to Mr Neff, the use of the terms "and to relate to" meant 
that, "[b]y retaining it as an independent clause the meaning is clear; the US may take unilateral 
action".160 Mr Evans, Mr Leddy, and Mr Terrill "objected strongly" to the retention of the words "and 
to relate to",  arguing that such a provision would destroy "the entire efficacy of the Charter".161 The 
three specifically noted that "[p]roviding the means for unilateral action will surely be abused by 
some countries", as "any country could, under the pretext of nation al security, take any measure 
whatsoever it might wish in complete disregard of all provisions of the Charter".162 Mr Leddy added 
that it would have been "better to abandon all work on Charter" instead of including the proposed 
wording.163 
4.23.   In response to the criticisms, Mr Neff argued that, with regard to matters of national security, 
the United  States  had to be "given a free hand to make whatever decisions may be necessary without 
challenge by the ITO".164 Mr Evans replied that the United  State s would be a sufficiently important 
member of the ITO and that, in the event of a "bona fide" national security problem, the ITO would 
not be able to do otherwise than find in favour of the United  States .165 This opinion was shared by 
Mr Brown.166 
4.24.   Mr Ryder ( Tariff Commission) stated that, in practical terms, no injury could come to the 
United  States  by an intervention of the ITO to determine whether certain measures were in fact 
taken in the interest of national security.167 Mr Wilcox argued that he did not th ink that the ITO 
would ever become a forum to discuss national security interests.168 In light of the diverging views 
of the members of the delegation, Mr Wilcox called for a vote on the question whether the language 
"and to relate to" should be retained. O nly three members of the delegation voted to retain this 
wording (Captain Thorp (Navy), Mr Neff, and Mr Brossard (Tariff Commission)), whereas the majority 
voted to change the language to "relating to" (Mr Ryder, Mr Leddy, Mr Evans, Mr Brown, Mr Arnold 
(Department of State), Mr Rubin, Mr Terrill, Mr Hawkins, and Mr Schwenger (Department of 
Agriculture)).169 
4.25.   After the vote, Mr Neff asked that a provision be included in the Charter to the effect that any 
challenge against a measure taken purportedly for nation al security reasons be referred to the 
"World Court" for decision, rather than to the ITO.170 Mr Neff further requested that his dissent to 
the decision taken by vote be reflected in the minutes of the meeting.171 
4.26.   The United  States  highlights that a proposal  was tabled to add the words "and to relate to" to 
the text of the provision, and that such proposal was ultimately rejected.172 
 
156 US Delegation, Minutes of the Delegation Meeting (4  July 1947), (Exhibit USA -56), p. 4.  (emphasis 
original)  
157 Earlier in the meeting there was a discussion on the necessity to include the words "or agreement" in 
the introductory clause of the provision. Further to the discussion, the participants reached a compromise, 
replacing the words "measure or agreement" wi th "action". (US Delegation, Minutes of the Delegation Meeting 
(4 July 1947), (Exhibit USA -56), p. 2).  
158 US Delegation, Minutes of the Delegation Meeting (4  July 1947), (Exhibit USA -56), p. 2.  
159 US Delegation, Minutes of the Delegation Meeting (4  July 1947), (Exhibit USA -56), p. 2.  
160 US Delegation, Minutes of the Delegation Meeting (4  July 1947), (Exhibit USA -56), p. 2.  
161 US Delegation, Minutes of the Delegation Meeting (4  July 1947), (Exhibit USA -56), p. 2.  
162 US Delegation, Minutes of the Delegation Meetin g (4 July 1947), (Exhibit USA -56), pp. 2 -3. 
163 US Delegation, Minutes of the Delegation Meeting (4  July 1947), (Exhibit USA -56), p. 3.  
164 US Delegation, Minutes of the Delegation Meeting (4  July 1947), (Exhibit USA -56), p. 3.  
165 US Delegation, Minutes of the  Delegation Meeting (4  July 1947), (Exhibit USA -56), p. 3.  
166 US Delegation, Minutes of the Delegation Meeting (4  July 1947), (Exhibit USA -56), p. 3.  
167 US Delegation, Minutes of the Delegation Meeting (4  July 1947), (Exhibit USA -56), p. 3.  
168 US Delegation, Minutes of the Delegation Meeting (4  July 1947), (Exhibit USA -56), p. 3.  
169 US Delegation, Minutes of the Delegation Meeting (4  July 1947), (Exhibit USA -56), p. 3.  
170 US Delegation, Minutes of the Delegation Meeting (4  July 1947), (Exhibit USA -56), p. 3.  
171 US Delegation, Minutes of the Delegation Meeting (4  July 1947), (Exhibit USA -56), p. 3.  
172 United  States ' first written submission, paras.  97-98. WT/DS544/R/Suppl.1  
 
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  4.27.   China notes that the minutes of the meeting show the understanding by the participants that 
the approval of the proposed change would have placed the applicability of the subparagraphs within 
the scope of what an ITO member could unilaterally determine.173 China further notes that the 
proposal was rejected, on the grounds that its adoption would be destructive for the efficacy of the 
Charter.174 
4.1.6   US Delegation, Memorandum of Mr Rubin  (14 July 1947)  
4.28.   In response to two memoranda filed, respectively, by Mr Neff and Captain Thorp, Mr Rubin 
submitted another memorandum with his comments on the internal deliberations of the US 
delegation concerning the drafting of the security exceptions.175 
4.29.   Mr Rubin provided his views with regard to the question of "the power to int erpret the security 
exceptions".176 Mr Rubin recognized that there were differences between the wording of the draft 
security exceptions provision at that time and the proposal submitted by Mr Neff, pursuant to which 
the introductory clause of the provision  would have ended with the words "from taking any action 
which it may consider to relate to …".177 
4.30.   Mr Rubin noted that the changes proposed by Mr Neff "would make it perfectly clear that any 
[ITO m]ember had the unilateral power to decide that any action wh ich it proposed to take related 
to the matters illustrated in the lettered [sub]paragraphs".178 Mr Rubin further noted that those 
changes would have made "unchallengeable … a justification, however far -fetched, of any action on 
this basis".179 In this respec t, Mr Rubin wrote that, "[t]o the extent that the wording approved by 
the Delegation does not permit this completely open escape from the Charter, it may be said, as Mr 
Neff argues, to limit the scope of the unilateral interpretation portion of the securit y exceptions."180 
4.31.   Mr Rubin further argued that "the security exceptions are as drafted sufficiently broad to take 
care of any reasonable case".181 According to Mr Rubin, the security exceptions were redrafted "to 
provide for unilateral determination by each [ITO m]ember, unchallenged by any other [ITO 
m]ember, as to what action it deems necessary in a field 'relating to' the listed subjects" in the 
lettered subparagraphs.182 Mr Rubin therefore expressed his understanding that no challenge could 
be made to any action taken by the United  States : (i) falling in the field of "fissionable materials", 
as no challenge could be made to measures regulating the use of "source materials" for fissionable 
materials, or the traffic in arms, ammunitions, and implements of war, "no matter how remote may 
be considered the relevance of the measure undertaken to the problem to be solved, if the measure 
falls in any of the se fields"; or (ii)  "if the measure relates to any of the any of the identified fields of 
interest – another phrase which grants broad power of unilateral determination".183 
4.32.   Mr Rubin further referred to testimony before the US Senate Finance Committee that "does 
not indicate a commitment to go farther than these broad and unilateral exceptions, nor a desire 
that … the Charter should in effect be negated by such a broad and unilateral security exception that 
any action, no matter how little related to securit y, would be immune even from question".184 
4.33.   Mr Rubin expressed the view that, as the exceptions were drafted at that time, "no action in 
or relating to certain fields where national security is concerned can be questioned, whether before 
the Organization or the Court".185 Mr Rubin expressed the understanding that the changes introduced 
in the wording of the provision were in accordance with the commitment of the Department of State 
 
173 China's opening statement at the first meeting of the Panel , para.  42. 
174 China's opening statement  at the first meeting of the Panel , para.  42. 
175 US Delegation, Second Meeting of the United Nations Conference on Trade and Development, 
Memorandum of Seymour J. Rubin (14  July 1947), (Exhibit USA -49). The memoranda of Mr Neff and Captain 
Thorp were not su bmitted to the Panel and are not part of the record of this dispute.  
176 US Delegation, Memorandum of Mr Rubin, (Exhibit USA -49), p. 1.  
177 US Delegation, Memorandum of Mr Rubin, (Exhibit USA -49), p. 1.  
178 US Delegation, Memorandum of Mr Rubin, (Exhibit USA-49), p. 1.  
179 US Delegation, Memorandum of Mr Rubin, (Exhibit USA -49), p. 1.  
180 US Delegation, Memorandum of Mr Rubin, (Exhibit USA -49), p. 1.  
181 US Delegation, Memorandum of Mr Rubin, (Exhibit USA -49), p. 2.  
182 US Delegation, Memorandum of Mr Rubin, (Exhibit USA -49), p. 2.  
183 US Delegation, Memorandum of Mr Rubin, (Exhibit USA -49), p. 2.  
184 US Delegation, Memorandum of Mr Rubin, (Exhibit USA -49), p. 2.  
185 US Delegation, Memorandum of Mr Rubin, (Exhibit USA -49), p. 3.  WT/DS544/R/Suppl.1  
 
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  expressed in the following terms: "These new exceptions would be worded so as t o give each Member 
freedom to apply them as it determines in the interest of its own security".186 
4.34.   Mr Rubin then addressed the comment raised by Mr Neff that there was a contrast between 
the proposals submitted in the context of the ITO negotiations and the  United Nations Charter in 
which, according to Mr Neff, "the United States reserved the complete power of unilateral action in 
regard to any matter affecting its national security".187 In this regard, Mr Rubin "supposed that this 
refers to the veto power" a nd noted that it was not the policy of the United  States  to support the 
veto principle in international affairs or to reserve the veto "for all nations which come into any 
international organizations, ITO or any other".188 
4.35.   In conclusion, Mr Rubin stated tha t the security exceptions as drafted at that time gave "a 
great deal of leeway for unilateral determination on matters affecting national security", and that 
the wording proposed by Mr Neff would have made the ITO Charter an "illusory document".189 Mr 
Rubin  further explained that a "broader exception" would have been invoked by other countries 
rather than by the United  States , and that the formulation of the security exceptions at that time 
granted the United  States  freedom to apply the provision as it deter mined in the interest s of its own 
security, "provided that it [was] the exception and not something else".190 
4.36.   According to the United  States , this memorandum confirms that earlier formulations of the 
security exceptions already provided for broad power of u nilateral interpretation, and that the 
suggestions from the military representatives would have expanded that power only to the extent 
that it was not already preserved in the text.191 The United  States  further emphasizes that the 
memorandum reiterates that  "no challenge" could be made with regard to actions falling "in the field 
of fissionable materials … or the traffic in arms … no matter how remote may be considered the 
relevance of the measures undertaken to the problem to be solved".192 The United  States  argues 
that it was the view of the US delegation that the then -current text of the security exceptions already 
permitted each ITO member to determine, "for itself", what actions were necessary to protect its 
essential security interests in the fields listed in the provision.193 The United  States  considers that 
the US delegation did not take the position "that the scope of the unilateral action accorded to a 
Member invoking the security exceptions would be limited to the necessity of the me asure and would 
not extend to the determination of the other elements of the provision", as concluded by the panel 
in Russia – Traffic in Transit .194 Instead, the United  States  maintains that the memorandum 
specifically states that, under the text of the se curity exceptions, the United  States  could justify 
security measures "as it may contemplate as 'relating to'" the subjects listed in the provision.195 
4.37.   According to China, the memorandum of Mr Rubin confirms that the US delegation agreed 
upon a balance where by ITO members could unilaterally determine whether a certain action was 
"necessary" for the protection of their essential security interests, but the question of whether that 
action related to the matters contained in the lettered sub paragraphs  was not le ft to the unilateral 
determination of ITO members.196 According to China, this explanation provided by Mr Rubin is 
consistent with the position expressed by the delegate of the United  States  in response to questions 
received by the delegate of the Netherlan ds at a meeting held on 24  July 1947.197 
4.2  Assessment by the Panel  
4.38.   The Panel notes the parties' views on the potential relevance under Article  32 of the 
Vienna  Convention  of the internal documents of the US delegation at the negotiations for the ITO 
 
186 US Delegation, Memorandum of Mr Rub in, (Exhibit USA -49), p. 3.  
187 US Delegation, Memorandum of Mr Rubin, (Exhibit USA -49), p. 3.  
188 US Delegation, Memorandum of Mr Rubin, (Exhibit USA -49), p. 3.  
189 US Delegation, Memorandum of Mr Rubin, (Exhibit USA -49), p. 3.  
190 US Delegation, Memorandum of Mr  Rubin, (Exhibit USA -49), p. 3.  
191 United  States ' first written submission, para.  100. 
192 United  States ' first written submission, para.  101. 
193 United  States ' first written submission, para.  101. 
194 United  States ' first written submission, para.  102 (citing P anel Report , Russia – Traffic in Transit , 
para. 7.91).  
195 United  States ' first written submission, para.  102. 
196 China's opening statement at the first meeting of the Panel , para.  44. 
197 China's opening statement at the first meeting of the Panel , para.  45 (referring to Report of the 
24 July 1947 Meeting, (Exhibit USA -41)). See the discussion in section 2.1.5 above.  WT/DS544/R/Suppl.1  
 
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  Charter a nd the GATT  1947. The Panel further recalls its understanding that Article  32 of the 
Vienna  Convention  refers to preparatory work and the circumstances of the conclusion of a treaty 
as examples, without limiting the scope of the supplementary means of trea ty interpretation to which 
there may be recourse.198  
4.39.   In considering the possible relevance of these documents under Article  32, the Panel notes 
that these documents were not in the public domain, nor were they accessible to other delegations 
at the time th e negotiations of the ITO and the GATT  1947 took place. These documents pertain to 
the internal deliberations of only one delegation among those negotiating the ITO Charter and 
GATT  1947, albeit the proponent of the draft text for the security exceptions. The Panel is mindful 
that the documents do not shed light on the views or intentions of other delegations, nor are these 
documents submitted as a comprehensive record of the internal views of the one delegation to which 
they pertain.  
4.40.   Subject to these limitations, the Panel does not consider that these documents are, in 
principle, entirely irrelevant as supplementary means for the interpretation of Article  XXI(b) of the 
GATT  1994. These documents provide a record of discussions on vario us alternative versions of the 
security exceptions taking place around the time the provision was being drafted. Furthermore, 
certain discussions reported in the submitted documents specifically revolved around the extent to 
which the text of the security exceptions would permit some form of review of their invocation. 
Against this background, the Panel reviews the content of these documents bearing in mind their 
inherent limitations as a partial record of the internal views of one single delegation, and th e different 
institutional setting compared to the WTO in which these discussions took place, particularly with 
respect to the resolution of disputes.  
4.41.   The first two documents reflect diverging views among various branches of the US 
government prior to the s ubmission of the United  States ' proposal for a draft text of the ITO 
Charter199, particularly between the military services and the Department of State in relation to the 
drafting of the security exceptions. While the military services argued in favour of a  "free hand" to 
impose export restrictions of materials or technology, without there needing to be an "imminent 
threat of war", representatives of the Department of State emphasized the benefits of the "trade 
program " and committed to make sure that nation al security interests be fully preserved, without 
giving "carte blanche" to other ITO members to avoid their trade commitments "under the cloak of 
a sweeping security exception".200 The divergence of views extended to the perceived rationale for 
the ITO Cha rter, with military services considering it a form of economic disarmament to be properly 
placed under the aegis of the Security Council of the United Nations, and other branches of the US 
government noting that the reduction of trade barriers was a major goal of the United  States ' foreign 
policy, not to be necessarily overridden by any aspect of military security.201 The Panel considers 
that these documents reveal an initial difference in the positions of various branches of the US 
government that would be the subject of efforts to reach a compromise.  
4.42.   With regard to the letter from Mr Coppock to Mr Wilcox, the Panel notes that it contained a 
"procedural" proposal with the aim of bridging the diverging views between the military services and 
the Department of  State. According to this proposal, in light of the impossibility to draft a text of the 
provision that would satisfy the opposing views, a solution could be found by entrusting the Executive 
Board of the ITO or the Security Council of the United Nations w ith the authority to review the 
invocation of the security exceptions, either in the first instance or on appeal.202 Consistent with the 
review of the negotiating history of Article  XXI of the GATT  1947 conducted earlier, this document 
shows that various alternative institutional architectures for the ITO were being considered around 
the time early drafts of the security exceptions provisions began to be discussed.  
4.43.   Turning to the minutes of the meeting t hat took place on 2  July 1947, the Panel notes that 
the debate concerned a proposal for an alternative wording of the security exceptions tabled by a 
representative of the military services. Specifically, the proposal included language that was 
understood to explicitly shield the invocation of the security exceptions from the applicability of the 
 
198 See para.  2.33 above.  
199 US Department of State, Memorandum of Conversation on "Security Exceptions to proposed ITO 
Charter", (Exhibit USA -52); US Delegation, Economic Disarmament (Draft), (Exhibit USA -53). 
200 See para.  4.5 above.  
201 See para.  4.9 above.  
202 See para.  4.14 above.  WT/DS544/R/Suppl.1  
 
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  rules on dispute settlement.203 While the debate does not reveal the specific reasons for rejecting 
the proposed paragraph, the Panel notes that similar wording did  not feature in any of the various 
iterations of the security exceptions that were discussed during the negotiations of the ITO Charter 
or the GATT  1947. 
4.44.   Regarding the meeting that took place on 4  July 1947, the Panel notes that the US delegation 
discussed  two versions of the introductory clause of the security exceptions provision. Under one 
version, similarly to the current formulation of Article  XXI of the GATT  1994, the chapeau  of the 
provision would end with the words "relating to". Under another versi on, the introductory sentence 
referred to measures that an ITO member "consider[s] to be necessary and to relate to" one of the 
situations detailed in the subsequent subparagraphs.204 The majority of the delegation voted in 
favour of the first version.205 Among the considerations that led to rejecting the second version, the 
Panel notes that several participants to the meeting argued that it would have unduly expanded the 
scope for unilateral action for ITO members, thereby opening the door to the possibility  of abuses. 
In this regard, the Panel notes that the US delegation rejected a potential formulation that would 
have explicitly left it to the ITO member invoking the security exceptions to determine whether a 
certain measure was within the scope of the sub paragraphs.  
4.45.   With respect to the memorandum drafted by Mr Rubin to the Chairperson of the US delegation, 
the Panel notes that the author examines different positions that emerged within the US delegation 
concerning the power to interpret the security except ions. Specifically, Mr Rubin commented on a 
proposal by Mr Neff that the introductory clause of the security exceptions end with the phrase "from 
taking any action which it may consider to relate to", followed by the relevant subparagraphs. 
According to th e memorandum, this language would have made it clear that ITO members retained 
the "unilateral power" to determine that their actions "did relate to the matters contained in the 
lettered [sub]paragraphs", which would make "unchallengeable … a justification , however far -
fetched, of any action" purportedly taken under the security exceptions. The memorandum contrasts 
"this completely open escape from the Charter" with the provision as it was drafted at that time, 
which was already "sufficiently broad to apply  to any reasonable case" by providing for "unilateral 
determination by each [ITO m]ember, unchallenged by any other [ITO m]ember, as to what action 
it deems necessary in a field " identified in the subparagraphs. Accordingly, the memorandum refers 
to "actio n in or relating to certain fields  where national security is concerned" that could not be 
"questioned" before the competent organs envisaged in the draft text of the ITO Charter at that 
time.206 While recognizing the need for "leeway" for ITO members in th e pursuit of their security 
interests, the memorandum raised the concern that the proposals submitted by Mr Neff would have 
transformed the ITO Charter into an "illusory document", opening the door for abuses by other ITO 
members to the detriment of the in terests of the United  States .207 The identification of such concerns 
along with explanations as to the specific "fields" in the subparagraphs indicates the aim of drafting 
the text of the security exceptions so as to balance the need for ITO members to prot ect their 
security interests while establishing limits to the potential abuse of the provision.  
4.46.   The materials examined in this section indicate that, during the negotiations of the GATT  1947 
and the ITO Charter, different sensitivities emerged within the U S delegation with regard to the 
drafting of the security exceptions. Bearing in mind the limits of this analysis as already 
foreshadowed at the beginning of the Panel's assessment, the Panel notes that the US delegation 
considered various alternative propo sals. According to some of these proposals, the invocation of 
the security exceptions would have been explicitly shielded from the provisions on dispute 
settlement. Under other alternative proposed wordings, whether the conditions listed in the 
subparagrap hs were met would have been a matter to be left exclusively to the consideration of the 
ITO member invoking the security exceptions. The majority of the US delegation rejected these 
proposals with a view to avoiding that excessively broad security exceptio ns could be abused, 
thereby undermining the entire architecture of the ITO.  
4.47.   The Panel does not consider that these materials indicate that the provision as it was drafted 
at the time already provided ITO members with the unilateral power to interpret it. Specifically, the 
 
203 See para.  4.17 above.  
204 See para.  4.21 above.  
205 See para.  4.24 above.  
206 See para.  4.33 above (emphasis added). The memorandum found further support in the absence of 
indications that the US Senate Finance Committee desire d "such a broad and unilateral security exception that 
any action, no matter how little related to security, would be immune even from question".  
207 See section 4.1.6 above.  WT/DS544/R/Suppl.1  
 
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  Panel is not persuaded that the materials reveal an understanding that an ITO member could 
unilaterally determine whether certain measures met the conditions listed under the subparagraphs 
of the security exceptions provision, as contende d by the United  States . While not conclusive in and 
of itself, the Panel considers noteworthy in this respect the fact that a drafting proposal suggesting 
this very possibility was rejected by the majority of the US delegation.  
4.48.   Based on the foregoing, the Panel does not find support in these materials for the "self -judging 
nature" of Article  XXI(b) of the GATT  1994 as contended by the United  States . Accordingly, and 
taking into account the inherent limitations of these materials for the interpretive issues in this 
dispute, the analysis of these materials confirms, or at least does not undermine, the Panel's 
interpretation of Article  XXI(b) of the GATT  1994. 
5  DECISION OF THE CONTRACTING PARTIES  IN US  EXPORT RESTRICTIONS 
(CZECHOSLOVAKIA)  (1949)  
5.1  Arguments and materials submitted by the parties  
5.1.  The United  States  refers to the Decision of the CONTRACTING PARTIES  in the 1949 US  Export 
Restrictions (Czechoslovakia)  dispute between the United  States  and Czechoslovakia (the 1949 
Decision) as a "subsequent agreement between the parties regarding the interpretation of the treaty 
or the application of its provisions".208 The United  States  argues that the 1949 Decision "reflects the 
interpretation of Article XXI(b) as self -judging and constitutes a subsequent agreement … within the 
meaning of Article  31(3)(a) of the Vienna  Convention ".209  
5.2.  The United  States  also argues that while a few contracting parties abstained and one party 
dissented, the 1949 Decision nevertheless constitutes a subsequent agreement within the meaning 
of Article  31(3)(a) of the Vienna  Convention .210 The United  States  maintains that a subsequent 
agreement need not be unanimous and refers to the text of Article  31 of the Vienna  Convention  in 
support of this point, namely that Article  31(2)(a) refers to "all the parties" whereas Article  31(3)(a) 
refers to "the parties".211 In the United  States ' view, this is indicative of the drafters' intention to 
deliberately omit the word "all", thereby not  subjecting subsequent agreements to the requirement 
of unanimity.212 What is relevant for the United  States  is "whether the parties have reached 
agreement pursuant to the decision -making rules that they have agreed for purposes of that 
agreement".213 The United  States  maintains that the rules of procedure existing at that time provided 
that "decisions shall be t aken by a majority of the representatives present and voting".214 The 
United  States  notes that while the WTO  Agreement  sets out detailed procedures for the adoption of 
authoritative interpretations by the Ministerial Conference, such procedures were not in place at the 
time of the above -mentioned dispute.215 
5.3.  According to the United  States , since the GATT  1947 was incorporated verbatim into the 
GATT  1994 without modifications, and since the text of Article  XXI of the GATT  1947 is identical to 
the text of Article XXI of the GATT  1994, "the interpretation reflected in the United States Export 
 
208 United  States ' first written submission, para.  47. 
209 United  States ' first written submission, para.  47.  
210 United  States ' first written submission, fn  44. 
211 United  States ' first written submission, fn  44; response to Panel question No.  65. 
212 United  States ' first written submission, fn  44. 
213 United  States ' response to Panel question No.  65. 
214 Unites States' opening statement at the first meeting of the Panel , para.  24 and fn  9 (citing General 
Agreement on Tariffs and Trade – Second Session of the CONTRACTING PARTIES, Rules of Procedures 
GATT/CP.2/3 Rev.1 (Aug. 18, 1948), Rules 27 and 28 ( GATT CONTRACTING PARTIES, Second Session, Rules 
of Procedure for Sessions of the CONTRACTING PARTIES (As adopted on 16  August  1948), GATT/CP.2/3 Rev.1, 
(Exhibi t USA -90); GATT CONTRACTING PARTIES, Rules of Procedure for Sessions of the CONTRACTING 
PARTIES (6  September  1949), GATT/CP/30, (Exhibit USA -91)). See also United  States ' response to Panel 
question No.  64. 
215 United  States ' first written submission, para.  48; response to Panel question No.  64. The 
United  States  also notes that the GATT contracting parties subsequently established the practice of adopting 
interpretations of the GATT  1947 through joint actions under Article  XXV of the GATT  1947, but that pract ice 
was not yet in place at the time of the 1949 Decision. (See United  States ' response to Panel question No.  66). WT/DS544/R/Suppl.1  
 
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  Restrictions  decision is also a subsequent agreement for the purposes of the interpretation of 
Article  XXI of the GATT 1994".216 
5.4.  The United  States  further characterizes the 1 949 Decision as being one of the "decisions" within 
the meaning of Paragraph 1(b)(iv) of the language incorporating the GATT  1947 and other 
instruments into the GATT  1994 (Paragraph 1(b)(iv) of the GATT  1994) and Article  XVI:1 of the 
WTO Agreement .217 The United  States  argues that the 1949 Decision was taken in accordance with 
the rules in force at that time, and should therefore be distinguished from a recommendation by a 
panel or a Working Party that was later adopted by the parties.218 The United  States  thus argues 
that, in interpreting the terms of the security exceptions, the Panel may consider the 1949 Decision 
to be relevant "context", supporting the conclusion that Article  XXI(b) of the GATT  1994 is self -
judging.219 
5.5.  China argues that the 1949 Decision does not constitute a "subsequent agreement" within the 
meaning of Article  31(3)(a) of the Vienna  Convention .220 According to China, the 1949 Decision: 
(i) was taken under Article  XXIII:2 of the GATT  1947, the predecessor to the DSU, and a s such it is 
a decision in a particular case and not a "subsequent agreement"; (ii)  does not concern the 
interpretation of Article  XXI(b) but, at most, its application to specific facts; (iii)  was not adopted by 
consensus; and (iv)  cannot be considered an "authoritative interpretation", a concept that did not 
even exist at the time.221 China further argues that the 1949 Decision was taken under the 
GATT  1947, and as such is not "subsequent" to the GATT  1994.222 China considers that a 
"subsequent agreement" mu st at least clearly express a "common understanding" of the terms of a 
treaty, and the "acceptance of that understanding among Members".223 In this respect, China argues 
that a decision that concerns the application of a provision to a specific set of facts  does not reflect 
a "common understanding" of the terms of a treaty.224 
5.6.  China submits that, under the GATT  1947, "a matter referred to the [CONTRACTING PARTIES] 
under Article  XXIII:2 would not have provided a legal basis for resolving a general interpretive  
question", as understandings on the general interpretation of provisions were decided under a 
different legal basis, namely Article  XXV.225 
5.7.  Furthermore, China maintains that the 1949 Decision does not fall within the scope of 
Paragraph 1(b)(iv) of the GATT  1994, as it does not constitute a definitive interpretation of the 
relevant provision of the GATT  1947 and is not one of the decisions or agreements concerning the 
GATT  1947 that was incorporated into the GATT  1994 by virtue of Paragraph 1(b)(iv) thereof.226 
5.1.1   Request of Czechoslovakia for a decision under Article  XXIII of the GATT 1947  
5.8.  The agenda for the Third Session of the GATT CONTRACTING PARTIES, revised on 8  April 1949, 
included the "Request of the Government of Czechoslovakia for a decision under Article  XXIII as to 
whether or not the Government of the United States has failed to carry out its obligations under the 
Agreement through its administration of the issue of export licenses".227 
5.9.  The parties do not make specific comments with regard to this document.  
 
216 United  States ' response to Panel question No.  66. 
217 United  States ' response to Panel question No.  25. 
218 United  States ' response to Panel question No.  25. 
219 United  States ' response to Panel question No.  25. 
220 China's opening statement at the first meeting of the Panel , para.  63. 
221 China's opening statement at the first meeting of the Panel , para.  64. 
222 China's response to Panel questio n No.  66; second written submission, para.  103. 
223 China's response to Panel question No.  65 (citing Appellate  Body Report, US – Clove Cigarettes , 
para. 267).  
224 China's response to Panel question No.  67. 
225 China's response to Panel question No.  67. 
226 China' s second written submission, para.  103 (citing Appellate  Body Report, US – FSC, para.  108); 
response to Panel question No.  66. 
227 GATT CONTRACTING PARTIES, Third Session, Agenda (Revised 8  April 1949), GATT/CP.3/2/Rev.2, 
(Exhibit USA -24), item 14.  WT/DS544/R/Suppl.1  
 
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  5.1.2   Statements by Czechoslovakia and the United  States  
5.10.   In a statement made in support of the request pursuant to Article  XXIII of the GATT  1947, 
the representative o f Czechoslovakia argued that the United  States  administered its export licen ces 
for products in short supply or of military significance differently, depending on whether goods were 
destined to Canada and European countries participating in the European Re covery Programme or 
to other European countries.228 The representative of Czechoslovakia claimed that the measures at 
issue were inconsistent with Articles I and XIII of the GATT  1947.229 Czechoslovakia also claimed 
that the measures could not be justified under Articles XIV, XX, or XXI of the GATT  1947.230 
5.11.   The representative of the United  States  replied that Czechoslovakia's description of the 
measures was inaccurate, because a number of p roducts were not subject to export licences, not all 
applications for export licen ces to Czechoslovakia were denied, and in any event the measures were 
justified under Articles XX and XXI of the GATT  1947.231 
5.12.   The parties do not make specific comments with r egard to these documents.  
5.1.3   Debate and Decision of the CONTRACTING PARTIES  
5.13.   The CONTRACTING PARTIES discussed Czechoslovakia's request at a meeting held on 
8 June 1949.  
5.14.   The representative of Czechoslovakia was the first to intervene and cautioned against the 
consequences for international trade of a rejection of Czechoslovakia's request.232  
5.15.   The representative of the United  States  stated that Czechoslovakia did not submit new facts 
and accordingly requested the CONTRACTING PARTIES  to dismiss the request.233 
5.16.   The representative of Cuba spoke in support of the United  States ' proposal to dismiss the 
request of Czechoslovakia, arguing that "[t]he question asked by the Czechoslovakian representative 
in relation to the provisions of Article  I did not require an answer s ince the United  States  
representative had justified his case under Article  XXI whose provisions overrode those of 
Article  I".234  
5.17.   The representative of Czechoslovakia maintained that " Article  XXI referred to the traffic in 
arms, ammunition and implements of  war and other goods and materials for the purpose of 
supplying a military establishment, but the United  States  Government had used and interpreted the 
expression 'war material' so extensively that no one knew what it really covered".235 
5.18.   The representative of Pakistan stated that " Article  XXI, embodying exceptions to all other 
provisions of the Agreement, should stand by itself notwithstanding the provisions of other Articles 
including Article  I, and therefore the case called for examination only under the provisions of that 
Article".236 He further argued that he was convinced that the measures at issue were taken "in the 
interest of security and peace".237 The representative of Pakistan opposed the establishment of a 
Working Group to deal with the matter,  arguing that "he did not believe that tangible results could 
be produced by deliberations in a sub -group and that no economy of time would be justified in 
 
228 GATT CONTRACTING PARTIES, Third Session, Statement by the Head of the Czechoslovak Delegation 
(30 May 1949), GATT/CP.3/33, (Exhibit USA -25), pp. 1 -3. 
229 Statement by the Head of the Czechoslovak Delegation, (Exhibit USA -25), p. 2.  
230 Statement by the Head of  the Czechoslovak Delegation, (Exhibit USA -25), pp. 2 -3. 
231 GATT CONTRACTING PARTIES, Third Session, Reply by the Vice Chairman of the US Delegation 
(2 June 1949), GATT/CP.3/38, (Exhibit USA -26), pp. 2, 5, 8, and 11.  
232 GATT CONTRACTING PARTIES, Third Sessio n, Summary of the twenty -second meeting 
(8 June 1949), GATT/CP.3/SR.22, (Exhibit USA -27), p. 4.  
233 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949), (Exhibit USA -27), pp. 
4-5. 
234 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949), (Exhibit USA -27), p. 5.  
235 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949), (Exhibit USA -27), p. 6.  
236 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949), (Exhibit USA -27), p. 6.  
237 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949), (Exhibit USA -27), p. 6.  WT/DS544/R/Suppl.1  
 
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  dealing with a matter of such great importance".238 The representative of Pakistan expressed the 
opinion that "the CONTRACTING PARTIES should suggest that the two governments approach each 
other through diplomatic channels and seek a solution".239 Finally, the representative of Pakistan 
concluded stating that, "[i]n view of the importance of the question, the CONTRACTING PARTIES 
should not decide upon the request, but should try to bring about an understanding between the 
two parties, which was not an objective achievable by deliberations in sub -committees".240 
5.19.   The representative of the United Kingdom argued  that "since the question clearly concerned 
Article  XXI, the United States action would seem to be justified because every country must be the 
judge in the last resort on questions relating to its own security".241 The representative of the United 
Kingdom f urther argued that "the CONTRACTING PARTIES should be cautious not to take any step 
which might have the effect of undermining the General Agreement", noting that the nature of the 
question suggested that "it should be examined in detail by the two governm ents concerned" and 
that "no purpose would be served by a general inquest by the CONTRACTING PARTIES".242 The 
representative of the United Kingdom concluded that the request of Czechoslovakia should be 
dismissed.243 
5.20.   The representative of Czechoslovakia state d that Article  XXI was being "misapplied because 
the narrow reference in the text to war materials had been construed by the United States 
[g]overnment to cover a wide range of goods which could never be so regarded".244 
5.21.   The representative of the United  States replied that "this was a distortion of facts", explaining 
that the United  States  government had never denied export licen ces on goods that were placed on 
a "positive list", and that only 200 group items out of 3,000 were subject to export controls.245 The 
representative of the United  States  thus concluded that "there were no grounds for the accusation 
that the provisions of Article  XXI were extended to cover everything; for the commodities thus 
controlled constituted an extremely small proportion of th e exports of the country".246 
5.22.   Summing up the debate, the Chairperson concluded that, for the purposes of Article  XXIII of 
the GATT  1947, it should be understood that consultations under paragraph 1 of the provision "had 
already taken place".247 The Chairpers on further noted that, pursuant to Article  XXIII:2 of the 
GATT  1947, "the CONTRACTING PARTIES should promptly investigate, and should either make an 
appropriate recommendation to the contracting parties concerned or give a ruling on the matter as 
appropria te".248 The Chairperson stated that "[t]he complaint made by Czechoslovakia was based 
on Articles I and XXI and the United  States  justified any discrimination which might have occurred 
on the basis of Articles XX and XXI and particularly on the ground of se curity covered by the 
latter".249 The Chairperson took note of the lack of support for a proposal to set up a Working Party 
to examine the issue.250 
5.23.   The Chairperson thus stated that the "CONTRACTING PARTIES … should give a decision in 
accordance with paragra ph 2 of Article  XXIII".251 The Chairperson noted that the representative of 
Czechoslovakia had posed the question on the consistency of the contested regulations with Article  I 
of the GATT  1947.252 The Chairperson was however of the opinion that the question  was not 
 
238 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949), (Exhibit USA -27), pp. 
6-7. 
239 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949), (Exhibit USA -27), p. 7.  
240 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949), (Exhibit USA -27), p. 7.  
241 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949), (Exhibit USA -27), p. 7.  
242 Summary of the meeting of the GATT CON TRACTING PARTIES (8 June 1949), (Exhibit USA -27), pp. 
7-8 and Corrigendum.  
243 Summary of the meeting of the GATT CONTRACTING PARTIES (8 June 1949), (Exhibit USA -27), p. 8 
and Corrigendum.  
244 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949), (Exhibit USA -27), p. 8.  
245 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949), (Exhibit USA -27), p. 8.  
246 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949), (Exhibit USA -27), p. 8.  
247 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949), (Exhibit USA -27), p. 8.  
248 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949), (Exhibit USA -27), p. 8.  
249 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949), (Exhibit USA -27), p. 8.  
250 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949), (Exhibit USA -27), pp. 
8-9. 
251 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949), (Exhibit USA -27), p. 9.  
252 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949), (Exhibit USA -27), p. 9.  WT/DS544/R/Suppl.1  
 
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  appropriately put in light of the United Sates' defence under Articles XX and XXI of the GATT  1947.253 
According to the Chairperson, the question should be put as "whether the [g]overnment of the 
United  States  had failed to carry out its obligations under the Agreement through its administration 
of the issue of export licenses".254 
5.24.   A vote took place with Cz echoslovakia being the only contracting party voting in the 
affirmative.255 Seventeen delegations voted in the negative, three abstained, and two were 
absent.256 
5.25.   The representative of Pakistan explained his vote holding that "the charge … was not proved 
by factual evidence".257  
5.26.   The representative of Czechoslovakia stated that his government "could not consider that the 
CONTRACTING PARTIES had made a legally valid decision or correct interpretation of the General 
Agreement".258 He further "enquired whether the decision could not be communicated to all 
members of the Interim Commission for the International Trade Organization, so that they would be 
informed of the interpretation given by the CONTRACTING PARTIES of the provisions of the Havana 
Charter".259 
5.27.   The repr esentative of the United  States  "expressed his understanding of the position of those 
representatives who abstained".260 
5.28.   In response to the request of the representative of Czechoslovakia, the Chairperson stated 
that "the summary record of [the] meeting wou ld be sent, according to the usual practice, to all 
signatories of the Havana Final Act and to other members of the United Nations".261 
5.29.   Volume II of the "Basic Instruments and Selected Documents of the Contracting Parties to 
the GATT" published in 1952, Par t II (Decisions, Declarations, Resolutions and Rulings), includes a 
reference to the 1949 Decision, as follows262: 
ARTICLE XXI  
United  States  Export Restrictions[2] 
Decision of 8  June 1949 
The CONTRACTING PARTIES decided to reject the contention of the Czechoslovak 
delegation that the Government of the United  States  had failed to carry out its 
obligations under the Agreement through its administration of the issue of export 
licences.  
2 A complaint was brought by the Czechoslovak Government under Articles  I and XXI that export 
restrictions imposed by the United  States  did not conform to the provisions of Article  I. 
5.30.   In this dispute, the United  States  argues that, with the 1949 Decision, the CONTRACTING 
PARTIES rejected Czechoslovakia's challenge, finding th at the invocation by the United  States  of the 
 
253 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949), (Exhibit USA -27), p. 9.  
254 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949), (Exhibit USA -27), p. 9.  
255 Summary of the meeting of the  GATT CONTRACTING PARTIES (8  June 1949), (Exhibit USA -27), p. 9.  
256 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949), (Exhibit USA -27), p. 9.  
257 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949), (Exhibit USA -27), p. 9.  
258 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949), (Exhibit USA -27), p. 
10. 
259 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949), (Exhibit USA -27), p. 
10. 
260 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949), (Exhibit USA -27), p. 
10. 
261 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949), (Exhibit USA -27), p. 
10. 
262 GATT, Basic Instruments and Selected Documents, Volume II (Decisions, Declarations, Resolutions, 
Rulings and Reports), May 1952, (Exhibit USA -28), pp. 1 -3. WT/DS544/R/Suppl.1  
 
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  security exceptions was "not justiciable".263 According to the United  States , various participants at 
the meeting "expressed the view that Article  XXI is self -judging".264 The United  States  notes that 
the Chairpe rson opined that the question as raised by Czechoslovakia – whether the United  States ' 
measures were in conformity with Article  I of the GATT  1947 – "was not appropriately put", in light 
of the United  States ' invocation of the security exceptions.265 The Chairperson stated that the 
question should rather be whether the United  States  "had failed to carry out its obligations" under 
the GATT  1947.266 According to the United  States , the reformulation of the question is an indication 
that the r elevant question was a broader one: whether the United  States  had any obligations under 
the GATT  1947 given its invocation of Article  XXI.267 
5.31.   The United  States  also refers to the fact that, after the vote, the representative of 
Czechoslovakia requested "whe ther the decision could not be communicated to all members of the 
Interim Commission of the [ITO], so that they would be informed of the interpretation given  by the 
CONTRACTING PARTIES of the provisions of the Havana Charter".268 The United  States  notes tha t 
no contracting party disagreed with that statement.269  
5.32.   China argues that at no point in the debate did any of the participants express the 
understanding that the question to be decided concerned the interpretation of Article  XXI(b) of the 
GATT  1947 in general, as opposed to the resolution of a specific dispute between two parties.270 
China also argues that all three contracting parties that explained their reasons for voting against 
Czechoslovakia's claim (Cuba, Pakistan, and the United Kingdom) placed emp hasis on the factual 
nature of the dispute between Czechoslovakia and the United  States .271 China further notes that no 
contracting party (including the United  States ) took the position that, by invoking the security 
exceptions, the United  States  "had broug ht the matter to an end".272 On the contrary, China 
maintains that the United  States  felt compelled to demonstrate that its measures were "within the 
specific exceptions provided by the GATT".273 According to China, "[h]ad the [c]ontracting [p]arties 
agreed in 1949 that Article  XXI(b) should be interpreted and applied, in all cases, in the manner that 
the United  States  now advocates in the present dispute, the United  States  could simply have invoked 
Article  XXI(b) without any need to demonstrate the applicabi lity of one of the specified 
exceptions".274 
5.2  Assessment by the Panel  
5.33.   The Panel notes that the parties disagree on the relevance of the 1949  Decision as a 
"subsequent agreement" pursuant to Article  31(3)(a) of the Vienna  Convention , to be taken into 
account,  together with the context, when interpreting Article  XXI of the GATT  1994. The parties 
further express diverging views regarding the possible qualification of the 1949 Decision as being 
one of the "other decisions of the CONTRACTING PARTIES" under Paragra ph 1(b)(iv) of the 
GATT  1994. 
5.34.   Article  31(3)(a) of the Vienna  Convention  reads:  
Article  31 
General rule of interpretation  
… 3. There shall be taken into account, together with the context:  
 
263 United  States ' first written submission, para.  47. 
264 United  States ' first written submission, para.  50. 
265 United  States ' response to Panel question No.  64. 
266 United  States ' response to Panel question No.  64. 
267 United  States ' response to Panel question No.  64. 
268 United  States ' opening statement at the first meeting of the Panel , para.  25. (emphasis original)  
269 United  States ' opening statement at the first meeting of the Panel , para.  25. 
270 China's response to Panel question No.  67. 
271 China's second written submission, para.  103, fn  55. 
272 China's second written submission, para.  103. 
273 China's opening statement at the first meeting of the Panel , para.  67. 
274 China's opening statement at the first meeting of the Panel , para.  68. WT/DS544/R/Suppl.1  
 
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  (a) any subsequent agreement between the parties regarding the interpretation of the 
treaty or the application of its provisions  
5.35.   To qualify as a subsequent agreement, a decision must meet two conditions: (i)  it is adopted 
subsequent to the relevant covered agreement; and (ii)  its terms and contents express an 
agreement between Members on the interpretation of a treaty or the application of its provisions.275 
The Panel is not persuaded that the 1949 Decision meets either of these two conditions for the 
following reasons.  
5.36.   Concerning the temporal dimension, the pro vision at issue is Article  XXI of the GATT  1994, 
which is an agreement that is "legally distinct" from the GATT  1947 pursuant to Article  II:4 of the 
WTO Agreement .276 The document under review was a decision adopted in 1949 by the GATT 
CONTRACTING PARTIES a s opposed to the WTO Members, and dealt with the application of a 
provision of the GATT  1947, and not the GATT  1994.277 As such, the Panel does not consider the 
1949 Decision to be "subsequent" to the GATT  1994. 
5.37.   In addition to occurring prior to the GATT  1994, there are indications that the 1949 Decision 
does not express an "agreement" on the interpretation or the application of Article  XXI of the 
GATT  1994. The 1949 Decision under review is the outcome of a process in which the views of the 
parties concerne d were discussed and examined in a plenary meeting of the CONTRACTING PARTIES, 
and eventually a decision was taken by means of a vote. The minutes of the meeting do not report 
a shared understanding by the participants on broader interpretive questions con cerning the 
invocation of the security exceptions, nor do those minutes reflect the notion put forward by the 
United  States  in this dispute that the invocation of the security exceptions would be entirely "self -
judging". The Panel further notes that the vo te was not unanimous, with Czechoslovakia voting to 
uphold its challenge, three delegations abstaining and two being absent. The explicit disagreement 
of at least one of the participants to the meeting with the majority indicates the absence of an 
"agreeme nt" for the purposes of Article  31(3)(a) of the Vienna  Convention .  
5.38.   The Panel is therefore of the view that the 1949 Decision does not meet the conditions to be 
considered as a "subsequent agreement" under Article  31(3)(a) of the Vienna  Convention  for the 
interpretive issues raised in this dispute.  
5.39.   The Panel now turns to whether the 1949 Decision could be considered as one of the 
"decisions" referred to in Paragraph 1(b)(iv) of the GATT  1994 and Article  XVI:1 of the 
WTO Agreement . 
5.40.   Paragraph 1(b)(iv) of the GATT  1994 provides:  
1. The General Agreement on Tariffs and Trade 1994 ("GATT 1994") shall consist of: …  
(b) the provisions of the legal instruments set forth below that have entered into force 
under the GATT  1947 before the date of entry into force of th e WTO  Agreement : … 
(iv) other decisions of the CONTRACTING PARTIES to GATT  1947. 
5.41.   Article  XVI:1 of the WTO  Agreement  reads:  
Article  XVI 
Miscellaneous Provisions  
1. Except as otherwise provided under this Agreement or the Multilateral Trade 
Agreements, the W TO shall be guided by the decisions, procedures and customary 
practices followed by the CONTRACTING PARTIES to GATT  1947 and the bodies 
established in the framework of GATT  1947. 
 
275 See Appellate  Body Report, US – Clove Cigarettes , para.  262. 
276 See para.  1.1 above.  
277 See Panel  Report , Australia – Tobacco Plain Packaging , para.  7.3008.  WT/DS544/R/Suppl.1  
 
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  5.42.   The Panel observes that decisions of the CONTRACTING PARTIES to GATT  1947 under 
Article  XVI:1 of the WTO  Agreement  "provide guidance" to the WTO, whereas the "other decisions" 
mentioned in Paragraph 1(b)(iv) of the GATT  1994 are an integral part of the GATT  1994.278  
5.43.   The Panel recalls that the 1949 Decision was made in response to a request filed by 
Czechoslovakia under Article  XXIII:2 of the GATT  1947, the provision in that agreement regulating 
the resolution of controversies between contracting parties. The provision  establishes that, once a 
matter was raised, "the CONTRACTING PARTIES … shall make appropriate recommendations to the 
contracting parties which they consider to be concerned, or give a ruling on the matter, as 
appropriate". The provision thus clarifies tha t recommendations or rulings issued by the 
CONTRACTING PARTIES were limited to the issue raised in a specific controversy and directed at the 
contracting parties concerned. The Panel does not consider that the 1949 Decision, which was taken 
under Article  XXIII:2 of the GATT  1947, served the purpose of clarifying the interpretation of the 
provisions of the GATT  1947 beyond the framework of that specific dispute.279 The Panel is therefore 
not persuaded that the 1949 Decision could be characterized as a relevan t "decision" under 
Paragraph 1(b)(iv) of the GATT  1994. 
5.44.   Furthermore, the 1949 Decision concerned a specific factual situation and does not address 
the broader interpretive question as to whether the invocation of Article  XXI of the GATT  1994 is 
"self-judging" in the sense argued by the United  States . In particular, there is no explicit recognition 
by the participants that the invocation of the security exceptions could not be reviewed in dispute 
settlement. Whereas one participant expressed the view that "e very country must be the judge in 
the last resort on questions relating to its own security"280, the debate focused mostly on the factual 
circumstances of the controversy between the two disputing parties, and on whether Czechoslovakia 
had submitted suffici ent evidence to prevail in the dispute. Ultimately, the dispute was resolved by 
means of a vote, with Czechoslovakia explicitly indicating its disagreement about the outcome.281 
5.45.   To the extent that the 1949 Decision could be classified as falling under Article XVI:1 of the 
WTO Agreement , the Panel considers that any "guidance" under that provision is limited due to the 
specific subject matter considered in that dispute and the lack of indication in the minutes of the 
meeting on the general interpretive questi on concerning the reviewability of the security exceptions.  
5.46.   Based on the foregoing, the Panel concludes that the 1949 Decision does not provide relevant 
interpretive guidance for the purposes of the issues raised in this dispute under Article  XXI of the 
GATT 1994. 
6  DECISION OF THE GATT CONTRACTING PARTIES CONCERNING ARTICLE  XXI OF THE 
GATT  1947  (1982)  
6.1  Arguments and materials submitted by the parties  
6.1.  The United  States  refers to the Decision of the GATT CONTRACTING PARTIES concerning 
Article  XXI of the GATT  1947 of 30 November  1982 (the 1982 Decision) as a decision falling under 
both Paragraph 1(b)(iv) of the GATT  1994 and Article  XVI:1 of the WTO  Agreement .282 
6.2.  China arg ues that there are no decisions of the GATT CONTRACTING PARTIES within the 
meaning of Paragraph 1(b)(iv) of the GATT  1994 that would be relevant for the purposes of 
interpreting and applying Article  XXI of the GATT  1994.283 According to China, the 1982 Deci sion is 
a decision within the meaning of Article  XVI:1 of the WTO  Agreement  that is not relevant for the 
purposes of this dispute as it did not concern the interpretation of Article  XXI, but rather the 
 
278 Previous panels have considered that, in order to qualify as a decision falling under Paragraph 
1(b)(iv) of the GATT  1994, a document must be a "formal legal text which represented a legall y binding 
determination in respect of the rights and/or obligations generally applicable to all contracting parties to 
GATT  1947". (See Panel  Report s, US – FSC, para.  7.63; Australia – Tobacco Plain Packaging , fn 5900).  
279 Even after the contracting parties  to the GATT  1947 developed the practice of referring disputes to 
panels, adopted panel reports were not considered to be binding "except with respect to resolving the 
particular dispute between the parties to that dispute". (Appellate  Body Report, Japan – Alcoholic Beverages II , 
p. 14).  
280 See para.  5.19 above.  
281 See para.  5.24 above.  
282 United  States ' response to Panel question No.  25. 
283 China's response to Panel question No.  25. WT/DS544/R/Suppl.1  
 
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  procedures to be followed with regard to measures that the contracting parties considered to be 
justified under that provision.284 
6.1.1   GATT CONTRACTING PARTIES, Decision Concerning Article  XXI of the General 
Agreement (30 November 1982)  
6.3.  The text of the 1982 Decision is reproduced below:  
DECISION CONCE RNING ARTICLE XXI OF THE GENERAL AGREEMENT  
Decision of 30  November  1982 
Considering  that the exceptions envisaged in Article  XXI of the General Agreement 
constitute an important element for safeguarding the rights of contracting parties when 
they consider that reasons of security are involved;  
Noting  that recourse to Article  XXI could constitute, in certain circumstances, an 
element of disruption and uncertainty for international trade and affect benefits accruing 
to contracting parties under the General Ag reement;  
Recognizing  that in taking action in terms of the exceptions provided in Article  XXI of 
the General Agreement, contracting parties should take into consideration the interests 
of third parties which may be affected;  
That until such time as the CON TRACTING PARTIES may decide to make a formal 
interpretation of Article  XXI it is appropriate to set procedural guidelines for its 
application;  
The CONTRACTING PARTIES decide  that: 
1. Subject to the exception in Article  XXI:a, contracting parties should be informed to 
the fullest extent possible of trade measures taken under Article  XXI. 
2. When action is taken under Article  XXI, all contracting parties affected by such action 
retain their full rights under the General Agreement.  
3. The Council may be reques ted to give further consideration to this matter in due 
course.285 
6.4.  The United  States  argues that the preamble to the 1982 Decision "twice acknowledges the self -
judging nature of Article  XXI".286 First, the United  States  notes that the preamble emphasizes the  
importance of Article  XXI of the GATT  1947 in safeguarding the rights of the GATT contracting parties 
"'when they consider' that reasons of security are involved".287 Specifically, the United  States  
maintains that this expression mirrors "the pivotal self -judging phrase" of Article  XXI of the 
GATT  1947.288 Second, the United  States  notes that the decision recognizes that "in taking action in 
terms of the exceptions provided in Article  XXI of the General Agreement, contracting parties should 
take into conside ration the interests of third parties which may be affected".289 According to the 
United  States , this phrase demonstrates the acknowledgement by the contracting parties that the 
decision of whether to take essential security measures is "within the authorit y of each contracting 
party".290 
 
284 China's response to Panel question No.  25. 
285 GATT CONTRACTING PARTIES, Decision Conce rning Article  XXI of the General Agreement 
(30 November  1982), L/5426, (Exhibit USA -62). (emphasis original)  
286 United  States ' response to Panel question No.  25. 
287 United  States ' response to Panel question No.  25. 
288 United  States ' response to Panel question  No. 25. 
289 United  States ' response to Panel question No.  25. 
290 United  States ' response to Panel question No.  25. WT/DS544/R/Suppl.1  
 
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  6.5.  China argues that the 1982 Decision is not relevant for the purposes of this dispute as it did 
not concern the interpretation of Article  XXI.291 China further argues that the 1982 Decision 
"expressly notes" that the contracting parties considered it appropr iate to lay down procedural 
guidelines "until such time as the CONTRACTING PARTIES may decide to make a formal 
interpretation of Article  XXI".292 According to China, this language indicates that the CONTRACTING 
PARTIES had not adopted any formal interpretat ion of Article  XXI of the GATT  1947 as of 1982.293 
6.2  Assessment by the Panel  
6.6.  The Panel takes note of the parties ' views on the relevance of the 1982 Decision under  
Article  XVI:1 of the WTO  Agreement  and Paragraph 1(b)(iv) of the GATT  1994. 
6.7.  In the Panel's view, the phrase "[t]he CONTRACTING PARTIES decide" that immediately 
precedes the three paragraphs of the 1982 Decision indicates the intention to set forth procedural 
guidelines to be followed by all GA TT contracting parties in the application of Article  XXI of the 
GATT  1947.294 In this respect, the Panel considers that the 1982 Decision could be regarded as a 
decision falling under Paragraph 1(b)(iv) of the GATT  1994.295 The Panel is also of the view that , in 
any event, the 1982 Decision could be regarded as a decision within the meaning of Article  XVI:1 of 
the WTO  Agreement . 
6.8.  Regarding the content of the 1982 Decision, the Panel recalls the United  States ' view that the 
1982 Decision acknowledges "the self -judging nature" of Article  XXI of the GATT  1994.296 The 
United  States  finds support for this affirmation in two paragraphs of the preamble.297 The first 
paragraph of the preamble recognizes the importance of Article  XXI for the safeguard of the 
Members' righ ts "when they consider that reasons of security are involved". The third paragraph 
states that, when taking action under Article  XXI, a Member should take into consideration the 
interests of third parties which may be affected.  
6.9.  The Panel is not persuaded that the two paragraphs referred to by the United  States  provide 
guidance as to the issue of the reviewability of the invocation of Article  XXI of the GATT  1994. There 
is no explicit indication in either of the two paragraphs referred to by the United  States or elsewhere 
in the 1982 Decision that the invocation by a Member of Article  XXI cannot be reviewed by a panel 
in the context of a dispute. In this regard, the Panel finds it relevant that the 1982 Decision is 
concerned with "procedural guidelines" for the application of Article  XXI "until such time as the 
CONTRACTING PARTIES may decide to make a formal interpretation of Article  XXI". The language 
used indicates that the 1982 Decision does not constitute a substantive interpretation of the terms 
of Article XXI that would preclude review of its invocation in the context of a dispute.  
6.10.   The procedural nature of the 1982 Decision is underscored by the stipulation in paragraph 2 
of the 1982 Decision that, "[w]hen action is taken under Article  XXI, all contract ing parties affected 
by such action retain their full rights under the General Agreement". The Panel considers that the 
reference to "full rights under the General Agreement" serves to preserve those rights as reflected 
in the terms of the GATT  1947 withou t further elaboration as to the interpretation or scope of those 
rights. In the absence of any explicit indication to the contrary, the Panel finds that the reference to 
"full rights under the General Agreement" could admit, and at least does not preclude,  the possibility 
of having recourse to the dispute settlement provisions under the GATT  1947 and, eventually, the 
GATT  1994 and the DSU.  
6.11.   Accordingly, the Panel does not find any indication in the 1982 Decision that Article  XXI of the 
GATT  1994 should be u nderstood as an entirely "self -judging" provision in the sense argued by the 
United  States  in this dispute.  
 
291 China's response to Panel question No.  25. 
292 China's response to Panel question No.  25. 
293 China's response to Panel question No.  25. 
294 Pursuant to Article  XXV:1 of the GATT  1994, "[w]herever reference is made in this Agreement to the 
contracting parties acting jointly they are designated as the CONTRACTING PARTIES".  
295 See fn  278 above.  
296 United  States ' response to Panel question No.  25. 
297 United  States ' response to Panel question No.  25. WT/DS544/R/Suppl.1  
 
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  7  VIEWS OF THE GATT CONTRACTING PARTIES IN CONNECTION WITH PRIOR 
INVOCATIONS OF ARTICLE  XXI OF THE GATT  1947  
7.1  Arguments and materials submitted by the parties  
7.1.  The United  States  argues that the GATT contracting parties repeatedly expressed the view that 
Article  XXI(b) is "self -judging" and that the GATT was not the appropriate forum in which to resolve 
disputes concerning matters of natio nal security.298 According to the United  States , the views 
expressed by the GATT contracting parties do not have a particular status under Articles 31 and 32 
of the Vienna  Convention , but can inform or support the meaning of Article  XXI of the GATT  1994 
as interpreted according to the customary rules of public international  law.299 
7.2.  China argues that views previously expressed by the GATT contracting parties concerning 
Article  XXI of the GATT  1947 have no interpretive  significance under  the accepted principles  of treaty 
interpretation.300 In any event, China maintains that the views mentioned by the United  States  
reveal the absence of a common understanding among the GATT contracting parties concerning the 
meaning of Article  XXI of the GATT  1947.301 
7.1.1   Ghana's refer ence to measures taken pursuant to Article  XXI in the context of the 
accession of Portugal to the GATT  
7.3.  At a meeting held on 9  December  1961 to consider the draft protocol of accession to the GATT 
of Portugal, the representative of Ghana stated that his government maintained a ban on goods 
coming into Ghana from Portugal.302 The representative of Ghana stated that this measure was 
justified under Article  XXI of the GATT  1947 under which "each contracting party was the sole judge 
of what was necessary in it s essential security interests" and therefore there could be no objection 
to Ghana's measure.303 The representative of Ghana maintained that "the situation in Angola was a 
constant threat to the peace of the African continent and that any action which, by b ringing pressure 
to bear on the Portuguese Government, might lead to a lessening of this danger, was therefore 
justified in the essential security interests of Ghana".304 No contracting party commented on the 
statement made by the representative of Ghana. T he Chairperson affirmed that the statement made 
by the representative of Ghana on the invocation of Article  XXI would be noted.305 
7.4.  The United  States  argues that the exchange between Ghana and the Chairperson, combined 
with the "acceptance" by other contracting parties of Ghana's invocation of Article  XXI of the 
GATT  1947, shows that the contracting parties viewed Article  XXI as "self -judging".306  
7.5.  China does not comment on Ghana's reference to Article  XXI. 
7.1.2   The United Arab Republic's reference to Article  XXI in the context of its accession 
to the GATT  
7.6.  The 1970 report of the Working Party on the accession of the United Arab Republic to the GATT 
sets out a  discussion regarding measures adopted by the acceding government imposing a direct 
boycott against Israel and indirect forms of boycott targeting third -country firms and persons having 
business ties with Israel.307 The representative of the United Arab Rep ublic stated that direct boycott 
 
298 United  States ' first written submission, para.  106. 
299 United  States ' response to Panel question No s. 69-70. 
300 China's opening statement at the first meeting of the Panel , para.  70; response to Panel questions 
No. 69-70. 
301 China's response to Panel questions No.  69-70. 
302 GATT CONTRACTING PARTIES, Nineteenth Session, Summary Record of the Twelfth Session 
(9 December  1961), SR.19/12, (Exhibit USA -57), p. 196.  
303 Summary of the meeting of the GATT CONTRACTING PARTIES (9  December  1961), (Exhibit USA -57), 
p. 196.  
304 Summary of the meeting of the GATT CONTRACTING PARTIES (9  December  1961), (Exhibit USA -57), 
p. 196. 
305 Summary of the meeting of the GATT CONTRACTING PARTIES (9  December  1961), (Exhibit USA -57), 
p. 196.  
306 United  States ' first written submission, para.  108. 
307 GATT CONTRACTING PARTIES, Twenty -Sixth Session, Report by the Working Party on Accession of 
the United Arab Republic (25  February  1979), L/3362, (Exhibit USA -58), para.  18. WT/DS544/R/Suppl.1  
 
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  measures would not entail any inconsistency with the GATT  1947, as the Government of the United 
Arab Republic intended, upon accession, to resort to Article  XXXV of the GATT  1947 (i.e. the non -
application clause) vis-à-vis Israel.308 Concerning the secondary boycott,  some members of the 
Working Party "reserved all rights, under GATT or otherwise".309 The representative of the United 
Arab Republic noted that the measures adopted were related to the "extraordinary circumstances"  
existing in the Middle East at that time.310 In light of the political character of the issue, the 
representative of the United Arab Republic indicated that his government did not wish to discuss it 
within the GATT.311 Other members of the Working Party sup ported the views expressed by the 
representative of the United Arab Republic that the background of the measures was political and 
not commercial.312 The representative of Israel stated that she would not reply to the political issues 
raised, as they were b eing discussed in the competent organs of the United Nations.313 
7.7.  The United  States  argues that the fact that several members of the Working Party supported 
the United Arab Republic's position that the background of the measures was "political and not 
commer cial" indicates that the GATT contracting parties viewed Article  XXI of the GATT  1947 as 
"self-judging".314 
7.8.  China  does not comment on the report of the Working Party on the accession of the United 
Arab Republic to the GATT.  
7.1.3   Invocation of Article  XXI of the GATT  1947  by the European  Communities , Canada, 
and Australia in relation to certain measures affecting Argentina  
7.9.  In 1982, in relation to the situation between the United Kingdom and Argentina relating to the 
Falkland Islands  (Islas Malvinas) , the European  Communities  (and its member states), Canada, and 
Australia adopted certain measures affecting Argentina.  
7.10.   On 4 May 1982, the European  Communities , Australia, and Canada issued a communication 
to the GATT contracting parties  announcing that they had taken certain measures "on the basis of 
their inherent rights of which Article  XXI of the [ GATT  1947] is a general reflection".315 The three 
contacting parties further expressed the hope that "the situation … will soon be satisfact orily resolved 
by appropriate negotiations elsewhere".316 
7.11.   Argentina brought the matter for discussion in the GATT and a GATT Council meeting was 
held to discuss the matter on 7  May 1982. In raising the matter, the representative of Argentina 
argued that the  measures "were based on reasons of a political nature and were meant to exert 
political pressure on the sovereign decisions of Argentina in order to intervene in a conflict in which 
only one of the countries concerned was involved".317 The representative o f Argentina further argued 
that the measures were not justified under the GATT  1947, and specifically not under Article  XXI.318  
7.12.   The representative of the European  Communities  stated that the European  Communities  and 
its member states had taken the contested measures based on their "inherent rights, of which 
Article  XXI of the [ GATT  1947] was a reflection".319 According to the representative of the 
European  Communities , the exercise of these rights "required neithe r notification, justification nor 
approval" and the practice of the GATT contracting parties over the preceding 35 years showed that 
every contracting party was "the judge of its exercise of these rights".320 Finally, the representative 
 
308 Working Party Report on Accession of the United Arab Republic, (Exhibit USA -58), para.  19. 
309 Working Party Report on Accession of the United Arab Republic, (Exhibit USA -58), para. 20. 
310 Working Party Report on Accession of the United Arab Republic, (Exhibit USA -58), para.  22. 
311 Working Party Report on Accession of the United Arab Republic, (Exhibit USA -58), para.  22. 
312 Working Party Report on Accession of the United Arab Repub lic, (Exhibit USA -58), para.  23. 
313 Working Party Report on Accession of the United Arab Republic, (Exhibit USA -58), para.  24. 
314 United  States ' first written submission, para.  110. 
315 European  Communities , Australia, and Canada, "Trade Restrictions Affecting Argentina Applied for 
Non-Economic Reasons" (Revision), Communication to GATT contracting parties (4  May 1982), L/5319/Rev.1, 
(Exhibit USA -60), para.  1. 
316 Communication of the European  Communities , Australia, and Canada to GATT contr acting parties 
(4 May 1982), (Exhibit USA -60), para.  2. 
317 GATT Council, Minutes of the Meeting (7  May 1982), C/M/157, (Exhibit USA -59), p. 2.  
318 GATT Council, Minutes of the Meeting (7  May 1982), (Exhibit USA -59), p. 4.  
319 GATT Council, Minutes of the Meetin g (7 May 1982), (Exhibit USA -59), p. 10.  
320 GATT Council, Minutes of the Meeting (7  May 1982), (Exhibit USA -59), p. 10.  WT/DS544/R/Suppl.1  
 
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  of the European  Comm unities  expressed the hope that "appropriate negotiations elsewhere" would 
promptly allow for the settlement of the situation.321 
7.13.   The representative of Canada maintained that his government took action in light of a 
resolution of the UN Security Council, th at the measures were to be seen as a "political response to 
a political issue", and that the GATT "had neither the competence nor the responsibility to deal with 
the political issue which had been raised".322 Accordingly, the representative of Canada stated  that 
his delegation could not accept the notion that there had been a violation of the GATT  1947.323 The 
representative of Canada added that Article  XXI of the GATT  1947 did not define "essential security 
interests", nor did it mention notification.324 
7.14.   The representative of Australia maintained that it was inappropriate to enter a debate 
regarding the "political aspect" of the matter.325 The representative of Australia stated that the 
measures were in conformity with Article  XXI(c) of the GATT  1947, "which di d not require notification 
or justification".326 
7.15.   Other GATT contracting parties took the floor at the meeting, expressing various views in 
support of the positions of either Argentina or the contracting parties that had adopted the measures 
discussed at the  meeting.327  
7.16.   Certain GATT contracting parties made interventions referring explicitly to Article  XXI of the 
GATT  1947. The representative of Brazil stated that the case could set a dangerous precedent if the 
measures at issue were considered necessary for the protection of essential security interests in 
time of war or other international emergency, because "such interests had not been 
demonstrated".328 The representative of Brazil added that while the matter could be considered to 
constitute an emergency in  international relations, "this was the case only in respect of the region 
in question", as defined by the UN Security Council.329 The representative of Brazil further stated 
that the actions of the UN Security Council "had a bearing on the GATT in the ligh t of paragraph (c) 
of Article  XXI".330 The representative of Brazil maintained that it was difficult for his delegation to 
accept that the countries adopting the measures, "except one", were taking action to protect their 
essential security interests.331 Later in the debate, the representative of Brazil took the floor again 
to invite the Council to "reflect more deeply about the interpretation of Article  XXI", and raised the 
question of whether actions taken under Article  XXI fell outside the scope of Article  XXIII.332 
7.17.   The representative of Spain  argued that, in his view, the United Kingdom could find 
justification for its action under Article  XXI(b)(iii) of the GATT  1947, but he had doubt concerning 
the action taken by other contracting parties which were not "in the same position vis -à-vis 
Argen tina".333 
7.18.   The representative of Cuba argued that Article  XXI of the GATT  1947 "did not provide legal 
grounds" for the measures adopted by the European  Communities , Canada, and Australia.334 
7.19.   The representative of the Philippines noted that he was under the im pression that the 
European  Communities  and its member states, Canada, and Australia had taken measures "as their 
inherent rights, of which Article  XXI of the GATT was a reflection".335 Since the 
 
321 GATT Council, Minutes of the Meeting (7  May 1982), (Exhibit USA -59), p. 10.  
322 GATT Council, Minutes of the Meeting (7  May 1982), (Exhibit USA -59), p. 10.  
323 GATT Council, Minutes of the Meeting (7  May 1982), (Exhibit USA -59), p. 10.  
324 GATT Council, Minutes of the Meeting (7  May 1982), (Exhibit USA -59), pp. 10 -11. 
325 GATT Council, Minutes of the Meeting (7  May 1982), (Exhibit USA-59), p. 11.  
326 GATT Council, Minutes of the Meeting (7  May 1982), (Exhibit USA -59), p. 11.  
327 GATT Council, Minutes of the Meeting (7  May 1982), (Exhibit USA -59), pp. 2 -13. 
328 GATT Council, Minutes of the Meeting (7  May 1982), (Exhibit USA -59), p. 5.  
329 GATT Council, Minutes of the Meeting (7  May 1982), (Exhibit USA -59), p. 5.  
330 GATT Council, Minutes of the Meeting (7  May 1982), (Exhibit USA -59), p. 5.  
331 GATT Council, Minutes of the Meeting (7  May 1982), (Exhibit USA -59), p. 5.  
332 GATT Council, Minutes of the Meeting (7  May 1982), (Exhibit USA -59), p. 12  
333 GATT Council, Minutes of the Meeting (7  May 1982), (Exhibit USA -59), p. 6.  
334 GATT Council, Minutes of the Meeting (7  May 1982), (Exhibit USA -59), p. 6.  
335 GATT Council, Minutes of the Meeting (7  May 1982), (Exhibit USA -59), p. 7.  WT/DS544/R/Suppl.1  
 
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  European  Communities  was not a contracting party to the GATT, the representative of the Philippines 
"wondered about its inherent rights".336 
7.20.   The representative of Pakistan intervened in support of Argentina, noting that the GATT only 
permitted the suspension of obligations in situations of "extreme urgency", and that the situation in 
question was not an "extreme emergency in international relations".337 
7.21.   The representative of Singapore considered that "the wording of Article  XXI allowed a 
contracting party the right to determine the need for protection of its essential security interests".338 
At the same time, the representative of Singapore " saw a danger in the broad interpretation which 
Article  XXI permitted".339 
7.22.   The representative of the United  States  argued that "the GATT had never been the forum for 
resolut ion of any disputes whose essence was security and not trade, and that for good reasons, 
such disputes had seldom been discussed in the GATT, which had no power to resolve political or 
security disputes".340 According to the representative of the United  States, the "GATT, by its own 
terms, left it to each contracting party to judge what was necessary to protect its essential security 
interests in time of international crisis".341 The representative of the United  States  concluded that 
the matter fell outside t he sphere of competence of the GATT.342 
7.23.   The representative of Hungary stated that "the security considerations under Article  XXI of 
the General Agreement were within the realm of the individual contracting parties", and that this 
type of provision should th erefore be "handled with great care".343 
7.24.   The representative of Poland argued that his delegation did not consider that the measures 
could be justified under Article  XXI, "whose purpose was to give a contracting party the right to 
defend its legitimate inter ests in case of serious danger and not to punish another contracting party 
for actions which were hardly of an economic nature".344 The representative of Poland also took the 
view that Article  XXI was subject to the provision of Article  XXIII:2 of the GATT  1947.345 
7.25.   The representatives of I ndia, New Zealand , Singapore , the United  States , and Zaire held the 
view that the GATT was not the appropriate forum to deal with the matter.346 
7.26.   The Chairperson noted that the parties expressed "differing views as to whether the trade 
measures in question violated GATT obligations, as to whether the measures were based on inherent 
or natural rights and whether justification, notification and/or approval were necessary".347 The 
Chairperson then suggested, "in light of th e utmost importance of the subject", that the matter 
remain open and be kept on the agenda of the Council.348 
7.27.   The GATT Council continued its discussion on the matter at a meeting held on 29 -
30 June 1982. At the meeting, the contracting parties specifically discussed a proposal by the 
representative of Argentina that the Council, acting by consensus, "pronounce itself in the form of a 
note interpreting Article  XXI so that all contracting parties would know their rights and obligations" 
under the GATT  1947.349 The following is an excerpt from the minutes of the meeting reporting the 
view of the representative of Argentina:  
That note would enable the contracting parties firstly, to know whether Article  XXI 
exempted contracting parties from any obligation regardin g notification and surveillance 
 
336 GATT Council, Minutes of the Meeting (7  May 1982), (Exhibit USA -59), p. 7.  
337 GATT Council, Minutes of the Meeting (7  May 1982), (Exhibit USA -59), p. 7.  
338 GATT Council, Minutes of the Meeting (7  May 1982), (Exhibit USA -59), p. 7  
339 GATT Council, Minutes of the Meeting (7  May 1982), (Exhibit USA -59), p. 7.  
340 GATT Council, Minutes of the Meeting (7  May 1982), (Exhibit USA -59), p. 8.  
341 GATT Council, Minutes of the Meeting (7  May 1982), (Exhibit USA -59), p. 8.  
342 GATT Council,  Minutes of the Meeting (7  May 1982), (Exhibit USA -59), p. 8.  
343 GATT Council, Minutes of the Meeting (7  May 1982), (Exhibit USA -59), p. 8  
344 GATT Council, Minutes of the Meeting (7  May 1982), (Exhibit USA -59), p. 9.  
345 GATT Council, Minutes of the Meeting (7  May 1982), (Exhibit USA -59), p. 9.  
346 GATT Council, Minutes of the Meeting (7  May 1982), (Exhibit USA -59), pp. 5, 7, 8, and 9.  
347 GATT Council, Minutes of the Meeting (7  May 1982), (Exhibit USA -59), p. 13.  
348 GATT Council, Minutes of the Meeting ( 7 May 1982), (Exhibit USA -59), p. 13.  
349 GATT Council, Minutes of the Meeting (29 -30 June 1982), C/M/159, (Exhibit USA -61), p. 15.  WT/DS544/R/Suppl.1  
 
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  procedures when measures taken under its provisions affected the trade of another 
contracting party; secondly, to determine the natural rights which could be inherent for 
contracting parties and had been invoked in relation to Article  XXI in general; thirdly, 
to establish whether any contracting party, including one not involved in a problem 
between two other contracting parties, could interpret per se that there existed an 
emergency in international relations as referred to in Article  XXI:(b)(iii) and 
consequently take unilateral trade measures; fourthly, whether one or more contracting 
parties could take action under Article  XXI(c) without the prior existence of a specific 
provision adopted by the United Nations authorizing the application of restrictive trade 
measures.350 
7.28.   The representatives of the European  Communities  recalled his statement at the previous 
meeting.351 The representative of Canada expressed surprise that there had been no reference to 
an earlier invocation of Article  XXI by Ghana.352 According to the representative of Canada, on that 
occasion the notion of national security was interpreted in a broad sense by the government of 
Ghana and there had been no challenge to it.353 The representative of Canada further st ated that 
many contracting parties had previously taken similar action and no notification had been provided 
or requested.354 The representative of Australia reiterated the position already expressed at the 
previous meeting.355 He argued that only the CONTRA CTING PARTIES acting jointly could interpret 
the GATT  1947 and that, given the infrequent use of Article  XXI until that moment, he had doubts 
that there was a need for an interpretation of that provision.356 
7.29.   The representatives of Brazil, Colombia, Cuba, Dominican  Republic , Ecuador (observer), 
India, Nigeria, Peru, the Philippines, Romania, Spain, Venezuela (observer), Uruguay, and 
Yugoslavia supported the proposal made by the representative of Argentina for a note interpreting 
Article  XXI of the GATT 1947.357 
7.30.   The representative of the United  States  argued that the GATT had no role in a crisis of military 
force and left to each contracting party the judgment as to what it considered to be necessary for 
its security interests.358 
7.31.   The representative of th e United Kingdom, speaking for Hong Kong, China,  stated that the 
Council should avoid political discussions.359 The representatives of Japan, New  Zealand , and Norway 
expressed similar views.360 
7.32.   The Chairperson noted that the contracting parties held differing views with regard to the 
need for a note interpreting Article  XXI of the GATT  1947.361 He suggested that the representatives 
continue to consider the matter and engage in consultations, and t hat the Council revert to the item 
at its next meeting.362 
7.33.   Eventually, the CONTRACTING PARTIES adopted the 1982 Decision in relation to these 
discussions.363 
7.34.   In this dispute, the United  States  argues that  views expressed in connection with the 
invocation of Article  XXI of the GATT  1947 by the European  Communities , Canada, and Australia 
further confirm that Article  XXI is "self -judging" by the acting Member.364 
 
350 GATT Council, Minutes of the Meeting (29 -30 June 1982), (Exhibit USA -61), p. 16.  
351 GATT Council, Minutes of the Meeting (29 -30 June 1982), (Exhibit USA -61), p. 16.  
352 GATT Council, Minutes of the Meeting (29 -30 June 1982), (Exhibit USA -61), p. 18.  
353 GATT Council, Minutes of the Meeting (29 -30 June 1982), (Exhibit USA -61), p. 18.  
354 GATT Council, Minutes of the Meeting (29 -30 June 1982), (Exhibit USA -61), p. 18.  
355 GATT Council, Minutes of the Meeting (29 -30 June 1982), (Exhibit USA -61), p. 19.  
356 GATT Council, Minutes of the Meeting (29 -30 June 1982), (Exhibit USA -61), p. 19.  
357 GATT Council, Minutes of the Meeting  (29-30 June 1982), (Exhibit USA -61), pp. 17 -18. 
358 GATT Council, Minutes of the Meeting (29 -30 June 1982), (Exhibit USA -61), p. 19.  
359 GATT Council, Minutes of the Meeting (29 -30 June 1982), (Exhibit USA -61), p. 20.  
360 GATT Council, Minutes of the Meeting (2 9-30 June 1982), (Exhibit USA -61), p. 20.  
361 GATT Council, Minutes of the Meeting (29 -30 June 1982), (Exhibit USA -61), p. 21.  
362 GATT Council, Minutes of the Meeting (29 -30 June 1982), (Exhibit USA -61), p. 22.  
363 See para.  6.3 above.  
364 United  States ' first written submission, para.  119. WT/DS544/R/Suppl.1  
 
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  7.35.   China does not  comment on the i nvocation of Article  XXI of the GATT  1947 by the 
European  Communities , Canada, and Australia in relation to certain measures affecting Argentina . 
7.1.4   Invocation of Article  XXI of the GATT  1947  by the United  States  in relation to 
certain measures affecting Nicaragua  
7.36.   At a meeting held on 29  May 1985, the representative of Nicaragu a asked the GATT Council 
to "condemn the trade embargo and other restrictive measures" adopted by the United  States .365 
According to Nicaragua, the measures taken by the United  States  were inconsistent with certain 
provisions of the GATT  1947.366 The represe ntative of the United  States  argued that his government 
took measures for national security reasons that fell within Article  XXI(b)(iii) of the GATT  1947.367 
According to the representative of the United  States , his delegation did not intend to debate the 
matter in the GATT Council or any other GATT body "since GATT was not the appropriate body for 
debating political and security issues".368 The representative of the United  States  further argued that 
Article  XXI left to each contracting party the judgmen t of any action "which it considers necessary 
for the protection of its essential security interests".369 In this respect, the representative of the 
United  States  noted that his delegation took a similar position in prior instances.370 According to the 
repre sentative of the United  States , "[i]t was not for GATT to approve or disapprove the judgement 
made by the United  States  as to what was necessary to protect its national security interests; GATT 
was a trade organization, and had no competence to judge such matters".371 
7.37.   The representative of Cuba maintained that "recourse to Article  XXI had to be backed by 
certain facts, otherwise there would be no effective guarantees for any contracting party against 
abuse of the General Agreement".372 
7.38.   The representative of B razil expressed his government's understanding that "the right to 
invoke security reasons under Article  XXI should only be exercised in the light of other international 
obligations such as those assumed under the UN Charter".373 
7.39.   The representative of Chile argued that "resort to Article  XXI should be qualified by the 
contracting party invoking it" and that "the Article  did not imply that the trade consequences of 
measures taken under it could not be discussed in GATT".374 
7.40.   The repre sentative of Spain argued that the United  States ' measures could not be justified 
under the provisions of Article  XXI of the GATT  1947.375 
7.41.   The representative of Sweden maintained that "[w]hereas it had to be up to each country to 
define its essential securi ty interests under Article  XXI, contracting parties should be expected to 
exercise their rights under that Article  with utmost prudence".376 The representative of Sweden 
argued that in the case under discussion, "Sweden considered that the United  States  had not shown 
the necessary prudence but had chosen to give a too far -reaching interpretation to Article  XXI".377 
The representative of Sweden finally expressed the hope that efforts be undertaken elsewhere with 
the aim of bringing about a mutually acceptable solution to the dispute.378 
7.42.   The representative of Czechoslovakia contested the interpretation of Article  XXI advanced by 
the United  States . According to the representative of Czechoslovakia, "[i]f the US interpretation of 
Article  XXI were to be accepted, an y contracting party wanting to justify introduction of certain trade 
measures against any other contracting party could simply refer to Article  XXI and declare that its 
 
365 GATT Council, Minutes of the Meeting (29  May 1985), C/M/188, (Exhibit USA -63), p. 2.  
366 GATT Coun cil, Minutes of the Meeting (29  May 1985), (Exhibit USA -63), p. 4.  
367 GATT Council, Minutes of the Meeting (29  May 1985), (Exhibit USA -63), p. 4.  
368 GATT Council, Minutes of the Meeting (29  May 1985), (Exhibit USA -63), p. 4.  
369 GATT Council, Minutes of the Meeting (29  May 1985), (Exhibit USA -63), p. 4.  
370 GATT Council, Minutes of the Meeting (29  May 1985), (Exhibit USA -63), p. 4.  
371 GATT Council, Minutes of the Meeting (29  May 1985), (Exhibit USA -63), p. 5.  
372 GATT Council, Minutes of the Meeting (29  May 1985),  (Exhibit USA -63), p. 5.  
373 GATT Council, Minutes of the Meeting (29  May 1985), (Exhibit USA -63), pp. 7 -8. 
374 GATT Council, Minutes of the Meeting (29  May 1985), (Exhibit USA -63), p. 8.  
375 GATT Council, Minutes of the Meeting (29  May 1985), (Exhibit USA -63), p. 9. 
376 GATT Council, Minutes of the Meeting (29  May 1985), (Exhibit USA -63), p. 10.  
377 GATT Council, Minutes of the Meeting (29  May 1985), (Exhibit USA -63), p. 10.  
378 GATT Council, Minutes of the Meeting (29  May 1985), (Exhibit USA -63), p. 10.  WT/DS544/R/Suppl.1  
 
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  security was threatened".379 The representative of Czechoslovakia expressed the view tha t none of 
the provisions in Articles XXI(b)(i) -(iii) of the GATT  1947 were relevant in the case under discussion, 
and therefore there was no legal basis to justify the action taken by the United  States .380 
7.43.   The representative of India argued that a contracti ng party having recourse to 
Article  XXI(b)(iii) of the GATT  1947 "should be able to demonstrate a genuine nexus between its 
security interests and the trade action taken", and that "the security exception should not be used 
to impose economic sanctions for  non-economic purposes".381 According to the representative of 
India, the United  States  had not established such a nexus, and therefore the measures under 
discussion were not in conformity with the GATT  1947.382 
7.44.   The representative of Finland expressed the belief that "contracting parties should exercise 
utmost prudence when invoking Article  XXI".383 With regard to the specific case at issue, the 
representative of Finland "doubted whether a balance had been observed between prudence, the 
measures taken, and their effects on the multilateral trading system".384 The representative of 
Finland expres sed the hope that efforts to bring about a mutually acceptable solution would be 
undertaken elsewhere.385 
7.45.   The representative of Switzerland recognized that Article  XXI "gave overriding weight to the 
judgement of the contracting parties invoking the Article" .386 The representative of Switzerland 
added that his delegation also considered that "in light of the particular character of Article  XXI, any 
contracting party intending to have recourse to it should take particular care to avoid any harmful 
erosion of th e [GATT  1947] and any deterioration of the climate of international economic 
cooperation ".387 
7.46.   The representative of Egypt expressed the view that Article  XXI should be invoked "in a limited 
manner and with great prudence".388 
7.47.   The representative of Canada arg ued that the United  States  had the right to invoke the 
provisions of the GATT  1947 that it considered to be relevant, and at the same time Nicaragua 
retained its rights under the GATT  1947.389 The representative of Canada further noted that "this 
was fundam entally not a trade issue, but one which could only be resolved in a context broader than 
GATT".390 
7.48.   The representative of Australia argued that "the United States was permitted under Article  XXI 
of the [ GATT  1947] to take action of this kind with no require ment to justify such action".391  
7.49.   The representative of the European  Communities  held the view that "GATT had never had the 
role of settling disputes essentially linked to security", and that "the [ GATT  1947] left to each 
contracting party the task of judging what was necessary to protect its essential security 
interests".392 
7.50.   The repre sentative of Norway "endorsed the view of the representative of the European 
Communities that contracting parties should show responsibility, discernment and moderation when 
resorting to Article  XXI, and that discretion did not mean arbitrary application".393 
 
379 GATT Council, Minutes of the Meeting (29  May 1985), (Exhibit USA -63), p. 10.  
380 GATT Council, Minutes of the Meeting (29  May 1985), (Exhibit USA -63), p. 10.  
381 GATT Council, Minutes of the Meeting (29  May 1985), (Exhibit USA -63), p. 11.  
382 GATT Council, Minutes of the Meeting (29  May 1985), (Exhibit USA -63), p. 11.  
383 GATT Council, Minutes of the Meeting (29  May 1985), (Exhibit USA -63), p. 11.  
384 GATT Council, Minutes of the Meeting (29  May 1985), (Exhibit USA -63), p. 11.  
385 GATT Council, Minutes of the Meet ing (29  May 1985), (Exhibit USA -63), p. 11.  
386 GATT Council, Minutes of the Meeting (29  May 1985), (Exhibit USA -63), p. 11.  
387 GATT Council, Minutes of the Meeting (29 May 1985), (Exhibit USA -63), p. 11.  
388 GATT Council, Minutes of the Meeting (29  May 1985), (Exhibit USA -63), p. 12.  
389 GATT Council, Minutes of the Meeting (29  May 1985), (Exhibit USA -63), p. 12.  
390 GATT Council, Minutes of the Meeting (29  May 1985), (Exhibit USA -63), p. 12.  
391 GATT Council, Minutes of the Meeting (29  May 1985), (Exhibit USA-63), p. 13.  
392 GATT Council, Minutes of the Meeting (29  May 1985), (Exhibit USA -63), p. 13.  
393 GATT Council, Minutes of the Meeting (29  May 1985), (Exhibit USA -63), p. 14.  WT/DS544/R/Suppl.1  
 
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  7.51.   The representative of Iceland "did not question the sovereign right of every contracting party 
to decide whether or when the provisions of Article  XXI should be invoked".394 He further expressed 
the hope that "efforts undertaken elsewhere" would contribu te to resolve the matter.395 
7.52.   The representative of Portugal argued that " Article  XXI did provide for exceptions based on 
national security, and it was up to the contracting party invoking Article  XXI to determine what was 
necessary in this regard".396 
7.53.   The re presentative of Nicaragua maintained that "[i]t seemed that no delegation had 
separated the provisions of Article  XXI from the provisions of the UN Charter, and none had denied 
that Nicaragua retained its full rights under Article  XXIII".397 
7.54.   The delegation of Nicaragua circulated a draft decision condemning the measures adopted by 
the United  States  and urging the parties to resort to dispute settlement .398 The representatives of 
the United  States  and the European  Communities  criticized the draft de cision and saw no utility in 
the recourse to dispute settlement to settle the matter.399 
7.55.   The Council took note of the statements made and noted that the Chairperson would consult 
with delegations to determine how the matter could be dealt with at a subseque nt Council 
meeting.400 
7.56.   At a GATT Council meeting held on 12  March  1986, a panel was established under 
Article  XXII:2 of the GATT  1947.401 Pursuant to the agreed terms of reference, "the Panel [could 
not] examine or judge the validity of or motivation for the  invocation of Article  XXI(b)(iii) [of the 
GATT  1947] by the United States".402 The Panel concluded that "as it was not authorized to examine 
the justification for the United  States ' invocation of a general exception to the obligations under the 
[GATT  1947], it could find the United  States  neither to be complying with its obligations under the 
[GATT  1947] nor to be failing to carry out its obligations under that Agreement".403 
7.57.   A meeting of the GATT Council was held on 5 -6 November  1986. A discussion took plac e, with 
the contracting parties holding differing views with regard to the interpretation of Article  XXI of the 
GATT  1947. Whereas the representatives of the United  States  and the European  Communities  made 
statements recognizing that contracting parties ha d the right to determine their own national 
security interests404, other contracting parties expressed opposite views. For instance: (i)  the 
representative of Nigeria argued that " Article  XXI could be invoked only in cases of a state of war or 
emergency; ne ither was the case regarding the US embargo";405 (ii) the representative of Argentina 
argued that " Article  XXI had been improperly invoked by the United  States "406; (iii)  the 
representative of Sweden argued that panels should be able to examine all relevant GATT articles, 
including Article  XXI, and that "to restrict a panel's examination of measures taken in the context of 
Article  XXI was to risk an erosion of faith in GATT's rules"407; (iv)  the representative of Cuba 
maintained that "the use of Article  XXI by one contracting party to punish another should not be 
acceptable"408; (v)  the representative of Czechoslovakia argued that the Panel's conclusion 
confirmed that "if interpretation of Article XXI were reserved entirely to the contracting party 
invoking it, that Article  would often be used for purposes other than those for which it was intended" 
and that, in his view, the measures adopted by the United  States  did not conform with Article  XXI 
 
394 GATT Council, Minutes of the Meeting (29  May 1985), (Exhibit USA -63), p. 14.  
395 GATT Council, Minutes of the Meeting (29  May 1985), (Exhibit USA -63), p. 14.  
396 GATT Council, Minutes of the Meeting (29  May 1985), (Exhibit USA -63), p. 15.  
397 GATT Council, Minutes of the Meeting (29  May 1985), (Exhibit USA -63), p. 16.  
398 GATT Council, Minut es of the Meeting (29  May 1985), (Exhibit USA -63), pp. 16 -17. 
399 GATT Council, Minutes of the Meeting (29  May 1985), (Exhibit USA -63), pp. 16 -17. 
400 GATT Council, Minutes of the Meeting (29  May 1985), (Exhibit USA -63), p. 17.  
401 GATT Council, Minutes of the Meeting (12  March  1986), C/M/196, (Exhibit USA -64), p. 7.  
402 GATT Council, Minutes of the Meeting (12  March  1986), (Exhibit USA -64), p. 7.  
403 GATT Panel  Report , United  States  – Trade Measures Affecting Nicaragua , (Exhibit USA -65), para.  5.3. 
404 GATT Counc il, Minutes of the Meeting (5 -6 November  1986), C/M/204, (Exhibit USA -66), pp. 8 -9 and 
15-16. The representative of the European  Communities  noted, however, that "the discretionary right inherent 
in Article  XXI should not be arbitrarily invoked" (Ibid., p. 16). 
405 GATT Council, Minutes of the Meeting (5 -6 November  1986), (Exhibit USA -66), p. 10.  
406 GATT Council, Minutes of the Meeting (5 -6 November  1986), (Exhibit USA -66), p. 11.  
407 GATT Council, Minutes of the Meeting (5 -6 November  1986), (Exhibit USA-66), p. 12.  
408 GATT Council, Minutes of the Meeting (5 -6 November  1986), (Exhibit USA -66), pp. 12 -13. WT/DS544/R/Suppl.1  
 
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  of the GATT  1947409; (vi) the representative of India argued that a contracting party invoking 
Article  XXI of the GATT  1947 should be able to demonstrate a "genuine nexus" between its security 
interests and the action taken.410 
7.58.    Ultimately, consensus could not be reached on the adoption of the Panel report.411 Under the 
circumstances, the Chairperson suggested that the Council take note of the statements and request 
the Chairperson to consult informally with the delegations on how  to deal with the Panel's report.412 
The Council so agreed.413 
7.59.   In this dispute, t he United  States  argues in this dispute that although the GATT Council could 
not adopt the report, statements of the contracting parties in connection with the United  States ' 
reference to Article  XXI of the GATT  1947 "demonstrate that invocations of Article  XXI(b) were seen 
as self -judging and that the GATT was not intended as a forum to discuss political disputes".414 
7.60.   China does not comment on the views expressed by certain GATT contracting parties 
regarding the i nvocation of Article  XXI of the GATT  1947 by the United  States  in relation to certain 
measures affecting Nicaragua.  
7.2  Assessment by the Panel  
7.61.   The Panel notes that the parties agree that the views of the GATT contracting par ties 
summarized above do not have a particular status under either Articles 31 or 32 of the 
Vienna  Convention . The documents submitted refer to discussions taking place among GATT 
contracting parties in four separate instances.  
7.62.   With regard to the 1961 meet ing of the GATT CONTRACTING PARTIES where a discussion 
took place on Portugal's accession to the GATT, the Panel notes that Ghana invoked Article  XXI of 
the GATT  1947 as the justification for imposing a ban on the importation of Portuguese products. In 
that context, Ghana expressed the view that "each contracting party was the sole judge of what was 
necessary in its essential security interests".415 The minutes of the meeting do not report any 
reaction by any GATT contracting party to the statement of the re presentative of Ghana, and the 
Panel does not find any basis to interpret this lack of reaction as showing either support or opposition 
to the views expressed by the representative of Ghana.  
7.63.   With regard to the 1970 Working Party Report on the accession of the United Arab Republic 
to the GATT, the Panel notes that the document does not explicitly refer to Article  XXI of the 
GATT  1947. Furthermore, the document reveals that some GATT contracting parties "reserved their 
rights" under the GATT  1947, without further specification. In the Panel's view, the document does 
not reveal a common understanding by the parties on the interpretation of Article  XXI of the 
GATT  1947. The circumstance that some contracting parties reserved their rights under the 
GATT 1947 further indicates that the discussion recorded in the document did not preclude or 
predetermine such rights, including the possibility to resort to dispute settlement.  
7.64.   With regard to the discussions that took place in 1982 in relation to the invo cation by the 
European  Communities , Canada, and Australia of Article  XXI of the GATT  1947 to justify the adoption 
of certain measures affecting trade with Argentina in connection with the situation in the Falkland 
Islands  (Islas Malvinas) , the Panel notes that the documents on record show a variety of views 
among the GATT contracting parties. Differing views were expressed concerning a number of issues, 
including: (a) whether those GATT contracting parties that invoked Article  XXI of the GATT  1947 
were enti tled to do so; (b) whether GATT contracting parties invoking Article  XXI of the GATT  1947 
were required to notify their measures; and (c) what remedies were available for GATT contracting 
parties affected by measures taken pursuant to Article  XXI of the GATT 1947. Accordingly, the 
materials submitted demonstrate that the GATT contracting parties did not express a common 
understanding on the interpretation of Article  XXI of the GATT  1947. The Panel further notes that 
 
409 GATT Council, Minutes of the Meeting (5 -6 November  1986), (Exhibit USA -66), p. 14.  
410 GATT Council, Minutes of the Meeting (5 -6 November  1986), (Exhib it USA -66), p. 14.  
411 GATT Council, Minutes of the Meeting (5 -6 November  1986), (Exhibit USA -66), p. 17.  
412 GATT Council, Minutes of the Meeting (5 -6 November  1986), (Exhibit USA -66), p. 17.  
413 GATT Council, Minutes of the Meeting (5 -6 November  1986), (Exhibit USA -66), p. 17.  
414 United  States ' first written submission, para.  127. 
415 See para.  7.3 above.  WT/DS544/R/Suppl.1  
 
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  these discussions eventually led to the a doption of the 1982 Decision.416 In this respect, the Panel 
recalls its earlier findings that there is no  indication in the 1982 Decision that Article  XXI of the 
GATT  1994 should be understood as an entirely "self -judging" provision in the sense argued by t he 
United  States  in this dispute.417 
7.65.   Finally, the Panel turns to the discussions that took place in 1985 and 1986 in relation to the 
United  States ' invocation of Article  XXI of the GATT  1947 to justify certain measures affecting trade 
with Nicaragua. The Pa nel notes that while the United  States  and the European  Communities  made 
statements arguing that the GATT contracting parties had the right to determine their own national 
security interests, a number of contracting parties expressed opposite views, includ ing by 
challenging the notion that the invocation of Article  XXI of the GATT  1947 by a GATT contracting 
party would be self -judging. Further, a panel was established in the dispute between Nicaragua and 
the United  States  for which the parties agreed on spe cial terms of reference explicitly preventing 
that panel from examining or judging "the validity of or motivation for the invocation of 
Article  XXI(b)(iii) [of the GATT  1947] by the United  States ".418 Eventually, there was no consensus 
in the GATT Council t o adopt the report of the panel. Based on the foregoing, the Panel is of the 
view that these discussions do not reveal a common understanding on the interpretation of 
Article  XXI of the GATT  1947 among the GATT contracting parties.  
7.66.   The Panel therefore conc ludes that the materials reviewed in this section reveal various and, 
at times, opposing views expressed by several GATT contracting parties with reference to Article  XXI 
of the GATT  1947. In light of the heterogeneity of the views expressed in the materia ls reviewed 
above, the Panel does not consider that these provide any relevant guidance for the contested issues 
in this dispute regarding the interpretation of Article  XXI of the GATT  1994.  
8  URUGUAY ROUND NEGOTIATIONS  
8.1  Arguments and materials submitted by the parties  
8.1.  The United  States  refers to certain materials from the negotiating record of the Uruguay Round 
as "negotiating history" that confirms that the invocation of Article  XXI(b) of the GATT  1994 is self -
judging.419  
8.2.  China  does not comment  on these materials.  
8.1.1   Proposals  regarding Article  XXI at the Negotiating Group on GATT Articles  
8.3.  The United  States  submit s documents concerning two proposals tabled by Nicaragua and 
Argentina at the Uruguay Round Negotiating Group on GATT Articles.  
8.4.  On 10  November  1987, Nicaragua sent a communication to the Negotiating Group on GATT 
Articles, requesting the inclusion of Article  XXI among the provisions of the  GATT  1947 to be 
reviewed during the Uruguay Round of negotiations.420 On 28  June 1988, Nicaragua sub mitted a 
proposal to the Negotiating Group on GATT Articles regarding the interpretation of Article  XXI and 
the consequences of the invocation of that provision.421  
8.5.  First, Nicaragua proposed the adoption of an interpretative note regarding the "which it 
considers" language in Article  XXI(b). The proposed interpretative note read:  
Any invocation of this provision must be in good faith, that is, it must be consistent with 
international law and must come after the invoking party has first tried to protect its 
interest through bilateral negotiations, and, if such negotiations prove unsuccessful, has 
tried to protect its interests by appealing to the appropriate body of the United Nations 
 
416 See para.  6.3 above.  
417 See para.  6.11 above.  
418 See para.  7.56 above.  
419 United  States ' second written submission, para.  41. 
420 Negotiating Group on GATT Articles, Communication from Nicaragua (10  November  1987), 
MTN.GNG/NG7/W/34, (Exhibit USA -152). 
421 Negotiating Group on GATT Articles, Article  XXI Proposal by Nicaragua (28  June 1988), 
MTN.GNG/NG7/W/48, (Exhibit USA -150). WT/DS544/R/Suppl.1  
 
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  or other appropriate inter -governmental organisation that deals with war or  other 
emergencies in international relations. Any invocation of this provision must also be 
consistent with any resolution or determination reached by a body of the United Nations 
or other such inter -governmental organisation.422 
8.6.  Second, Nicaragua also pro posed the adoption of an interpretative note to define the terms 
"emergency in international relations" in Article  XXI(b)(iii), with the following language:  
For purposes of this Article, "emergency in international relations" shall be understood 
to refer o nly to situations which in the opinion of the CONTRACTING PARTIES threaten 
international peace and security and which the party invoking the Article  has first sought 
to resolve by appealing to the appropriate body of the United Nations or other 
appropriate  inter-governmental organisation that deals with peace and security 
issues.423 
8.7.  Finally, Nicaragua submitted a proposal for the adoption of the following provision:  
The CONTRACTING PARTIES shall make recommendations, which shall be obligatory, 
with a view to  compensating in full any developing country whose rights or benefits 
under the General Agreement have been nullified or impaired by the actions taken by 
another contracting party under Article  XXI, provided that in the opinion of the 
CONTRACTING PARTIES t he acts cited by the contracting party invoking Article  XXI as 
the basis for such invocation do not constitute acts taken in time of war or other 
emergency in international relations or a violation of international law.424 
8.8.  On 4 February  1988, Argentina subm itted a communication to the Negotiating Group on GATT 
Articles concerning Article  XXI.425 In the communication, Argentina stated  that experience to that 
date had shown that "there is no restriction on the unilateral interpretation of the contracting party 
invoking [ Article  XXI], which creates a legal gap that will have to be studied and resolved during the 
current Round of Negotiations".426 
8.9.  Argentina noted that the ITO Draft Charter envisaged the possibility to refer disputes of a 
"political" nature to the United Nations, thereby limiting the jurisdiction of the ITO and providing for 
a solution to matters "in one forum or the other".427 To avoid "future uses of Article  XXI that could 
continue to un dermine the functioning of the General Agreement", Argentina proposed that the 
Negotiating Group consider the following options : 
(a) To draft an Interpretative Note restoring the original link between Articles 86 and 
99. 
(b) To interpret certain terms of t he provisions of Article  XXI(b)(iii) in such a way as to 
limit possible arbitrariness.  
Such terms would include: (1) protection of essential security interests; and (2) time of 
war or other emergency in international relations.428 
8.10.   In its communication, Arge ntina further noted that trade measures adopted under Article  XXI 
did not allow developing countries affected by those  to effectively retaliate, which " facilitat es the use 
of these provisions against economically weaker countries".429 To address this concer n, Argentina 
 
422 Article  XXI Proposal by Nicaragua, (Exhibit USA -150). 
423 Article  XXI Proposal by Nicaragua, (Exhibit USA -150). 
424 Article  XXI Proposal by Nicaragua, (Exhibit USA -150). 
425 Negotiating Group on GATT Articles, Communication from Argentina (4  February  1988), 
MTN.GNG/NG7/W/44, (Exhibit U SA-151). 
426 Communication from Argentina, (Exhibit USA -151), p. 1.  
427 Communication from Argentina, (Exhibit USA -151), p. 2.  
428 Communication from Argentina, (Exhibit USA -151), p. 3. See Articles 86 and 99 of the ITO Draft 
Charter.  
429 Communication from Argent ina, (Exhibit USA -151), p. 3.  WT/DS544/R/Suppl.1  
 
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  proposed that future provisions "be strengthened … by ensuring suitable legal protection for 
developing or commercially weaker contracting parties".430 
8.11.   The two proposals were discussed at a meeting of the Negotiating Group on GATT Articles 
held on 27 -30 June 1988. Representatives of Argentina and Nicaragua introduced their proposals.431 
Several delegations intervened, but a note on  the meeting do es not indicate  their identity.  
8.12.   One delegation expressed the view that when measures were taken for s ecurity reasons, it 
was important to establish a clear relationship between "the measures taken and the security 
considerations on which they were based".432 The same delegation further stated that "[w]ithout 
calling into question the sovereign right to inv oke Article  XXI[,] the Group should examine how such 
a direct relationship could be established".433 
8.13.   Other delegations argued that "since Article  XXI involved very sensitive matters a great deal 
of discretion was necessary in dealing with it". As considerations of sovereignty were "paramount" 
in the application of Article  XXI, "it was unrealistic to think of a GATT body placing conditions on its 
use since only the individual contracting party concerned was ultimately in a position to judge what 
its security interests were".434 It was also noted that "[h]itherto contracting parties had been very 
judicious in using Article  XXI, which had been invoked ve ry infrequently".435 
8.14.   With respect to the proposal submitted by Argentina, "one delegation expressed the opinion 
that since the GATT had no competence in the determination of questions of security or of a political 
nature, it seemed doubtfully useful to set up any institutional test to determine whether a matter 
was security -related or political".436 
8.15.   Other delegations argued that there was a "danger" of Article  XXI being abused if 
governments were not cautious in its invocation.437 The minutes of the meeting fu rther report that 
"[o]ther delegations, which did not favour any change in the text of Article  XXI or the development 
of rigid disciplines in what was essentially a matter for unilateral decision, suggested that the 
notification provisions under the Article might be improved".438 The minutes mention that "[t]he 
point was also made that the right of recourse to Article  XXIII was the appropriate safeguard against 
abuse".439  
8.16.   Finally, with regard to the issue of the lack of retaliatory power for less -developed c ontracting 
parties, delegations expressed a variety of views, ranging from not seeing the issue as a "North -
South problem" to arguing in favour of making provision for compensation for less -developed 
countries when action affecting them was not consistent with Article  XXI.440 
8.17.   According to the United  States , the discussion reported above shows that negotiators during 
the Uruguay Round expressed views consistent with those of the negotiators of Article  XXI of the 
GATT  1947, "namely that matters of essential security under Article  XXI are left to the judgement  
of the invoking member".441 According to the United  States , even those delegations that agreed with 
Argentina and Nicaragua acknowledged this meaning.442 The United  States  maintains that the 
documents submitted show how "Uruguay Round negotiators did not in tend to alter the self -judging 
nature of Article  XXI, and they rejected proposals that would have done so ".443 
 
430 Communication from Argentina, (Exhibit USA -151), p. 3.  
431 Negotiating Group on GATT Articles, Note on Meeting of 27 -30 June 1988, MTN.GNG/NG7/8, (Exhibit 
USA-153), pp. 1 -2. 
432 Negotiating Group on GATT Articles, Note on Meetin g of 27 -30 June 1988, (Exhibit USA -153), p. 2.  
433 Negotiating Group on GATT Articles, Note on Meeting of 27 -30 June 1988, (Exhibit USA -153), p. 2.  
434 Negotiating Group on GATT Articles, Note on Meeting of 27 -30 June 1988, (Exhibit USA -153), p. 2.  
435 Negotiating Group on GATT Articles, Note on Meeting of 27 -30 June 1988, (Exhibit USA -153), p. 2.  
436 Negotiating Group on GATT Articles, Note on Meeting of 27 -30 June 1988, (Exhibit USA -153), 
pp. 2-3. 
437 Negotiating Group on GATT Articles, Note on Meeting of 27-30 June 1988, (Exhibit USA -153), p. 3.  
438 Negotiating Group on GATT Articles, Note on Meeting of 27 -30 June 1988, (Exhibit USA -153), p. 3.  
439 Negotiating Group on GATT Articles, Note on Meeting of 27 -30 June 1988, (Exhibit USA -153), p. 3.  
440 Negotiating Group on GATT Articles, Note on Meeting of 27 -30 June 1988, (Exhibit USA -153), p. 3.  
441 United  States ' second written submission, para.  49. 
442 United  States ' second written submission, para.  49. 
443 United  States ' second written submission, para.  49. WT/DS544/R/Suppl.1  
 
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  8.18.   China  does not specifically comment on these documents . 
8.1.2   The drafting of security exceptions in the GATS and in the TRIPS  Agreement  
8.19.   The United  States submit s materials concerning the drafting of security exceptions in the 
GATS and in the TRIPS  Agreement . 
8.20.   Concerning the negotiating history of the GATS, the United  States  submitted the draft texts 
of the security exceptions that were proposed by a numbe r of delegations at the Uruguay Round  
between 1989 and 1990 .  
8.21.   Switzerland submitted a proposal for a provision granting exceptions for "public order and 
national security" that omitted the language "it considers" and required that measures "necessary 
to protect … essential security interests" be not applied "in a manner that would constitute a means 
of arbitrary or unjustifiable discrimination between PARTIES, a disguised restriction on trade in 
services, or a means of circumventing the objectives of the Ag reement".444 
8.22.   A joint proposal by Brazil, Chile, Colombia, Cuba, Honduras, Jamaica, Nicaragua, Mexico, 
Peru, Trinidad and Tobago, and Uruguay included a n exception for measures "consistent with 
international law, that are … [n]ecessary to protect national se curity".445 Such exception would 
feature alongside exceptions for measures addressing other concerns (e. g., "public morals", "public 
order", "safety or health").446 Like the proposal submitted by Switzerland, this proposal did not 
include the "it considers"  language. The proposal also subjected measures necessary to protect 
national security to the requirement that they not be used "as a means to circumvent the objectives, 
principles and disciplines of this Framework nor as disguised restrictions on internat ional trade in 
services".447 Finally, the proposal introduced a notification requirement.448 
8.23.   The United  States  submitted a proposal for a "General Exceptions" provision, which included 
a separate paragraph dealing with national security.449 Similarly to Article  XXI of the GATT  1947, 
this proposal retained the "it considers" language and the reference to action "taken in time of war 
or other emergency in international relations".450 Similar elements characteri zed a proposal 
submitted by Japan.451 
8.24.   A draft text proposed by the European  Communities  also included a separate paragraph 
dealing with national security issues in the context of a broader "Exceptions" provision.452 Like the 
proposals of the United  States  and Japan, the draft text retained t he "it considers" language and the 
reference to action "taken in time of war or other emergency in international relations".453 In 
addition, the proposal of the European  Communities : (i) required parties to "take into consideration 
the interests of third pa rties which may be affected"; (ii)  provided that "PARTIES shall be informed 
 
444 Group of Negotiations on Services, Communication from Switzerland – Draft General Agreement on 
Trade in Services (7  June 1990), MTN.GNS/W/102, (Exhibit USA -183), p. 10.  
445 Group of Negotiations on Services, Communication from Brazil,  Chile, Colombia, Cuba, Honduras, 
Jamaica, Nicaragua, Mexico, Peru, Trinidad and Tobago and Uruguay – Structure of a Multilateral Framework 
for Trade in Services (26  February  1990), MTN.GNS/W/95, (Exhibit USA -184), p. 9.  
446 Communication from Brazil, Chile,  Colombia, Cuba, Honduras, Jamaica, Nicaragua, Mexico, Peru, 
Trinidad and Tobago and Uruguay – Structure of a Multilateral Framework for Trade in Services, (Exhibit USA -
184), p. 9.  
447 Communication from Brazil, Chile, Colombia, Cuba, Honduras, Jamaica, Nica ragua, Mexico, Peru, 
Trinidad and Tobago and Uruguay – Structure of a Multilateral Framework for Trade in Services, (Exhibit USA -
184), p. 9.  
448 Communication from Brazil, Chile, Colombia, Cuba, Honduras, Jamaica, Nicaragua, Mexico, Peru, 
Trinidad and Tobago  and Uruguay – Structure of a Multilateral Framework for Trade in Services, (Exhibit USA -
184), p. 9.  
449 Group of Negotiations on Services, Communication from the United  States  – Agreement on Trade in 
Services (17  October  1989), MTN.GNS/W/75, (Exhibit USA -185), p. 12.  
450 Communication from the United  States  – Agreement on Trade in Services, (Exhibit USA -185), p. 12.  
451 Group of Negotiations on Services, Communication from Japan – Draft General Agreement on Trade 
in Services (10  July 1990), MTN.GNS/W/107, (Exhibit USA -187), p. 12.  
452 Group of Negotiations on Services, Communication from the European  Communities  – Draft General 
Agreement on Trade in Services (18  June 1990), MTN.GNS/W/105, (Exhibit USA -186), p. 13.  
453 Communication from the Europ ean Communities  – Draft General Agreement on Trade in Services, 
(Exhibit USA -186), p. 13.  WT/DS544/R/Suppl.1  
 
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  to the fullest extent possible of measures taken under this Article"; and (iii)  established that "[a]ll 
parties affected by action under this Article  retain their full rights under  this Agreement".454 
8.25.   In July 1990, the Chairperson of the Group of Negotiations on Services circulated a draft of a 
"Multilateral Framework for Trade in Services".455 The draft included an "Exceptions" provision with 
a paragraph specifically dealing with nat ional security exceptions. The provision, in relevant part, 
read as follows:  
Article  XIV 
Exceptions  
2. Nothing in this Agreement shall be construed:  
(a) to require any party to furnish any information the disclosure of which it 
considers contrary to its es sential security interests; or  
(b) to prevent any party from taking any action which it considers necessary for 
the protection of its essential security interests:  
(i) relating to the provision of services as carried on directly or indirectly 
for the purpo se of provisioning a military establishment;  
(ii) relating to fissionable materials or the materials from which they are 
derived;  
(iii) taken in time of war or other emergency in international relations; or  
(c) to prevent any party from taking any action i n pursuance of its obligations 
under the United Nations Charter for the maintenance of international peace and 
security.  
3. PARTIES shall be informed to the fullest extent possible of measures taken under this 
Article.456 
8.26.   With minimal modifications, this pr ovision was also included in the draft text of the GATS 
circulated in December 1990.457 
8.27.   In December 1991, the Chairperson of the Trade Negotiations Committee circulated a draft 
text of the GATS that further separated "General Exceptions" in Article  XIV from  "Security 
Exceptions", now placed in Article  XIV bis and worded as follows:  
Article  XIV bis 
Security Exceptions  
1. Nothing in this Agreement shall be construed:  
(a) to require any party to furnish any information the disclosure of which it 
considers contrary to its essential security interests; or  
 
454 Communication from the European  Communities  – Draft General Agreement on Trade in Services, 
(Exhibit USA -186), p. 13.  
455 Group of Negotiations on Services, Draft Mul tilateral Framework for Trade in Services (23  July 1990), 
MTN.GNS/35, (Exhibit USA -188). 
456 Group of Negotiations on Services, Draft Multilateral Framework for Trade in Services (23  July 1990), 
(Exhibit USA -188), pp. 11 -12. 
457 Trade Negotiations Committee, D raft Final Act Embodying the Results of the Uruguay Round of 
Multilateral Trade Negotiations (Revision) (3  December  1990), MTN.TNC/W/35/Rev.1, (Exhibit USA -189), p. 
348. WT/DS544/R/Suppl.1  
 
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  (b) to prevent any party from taking any action which it considers necessary for 
the protection of its essential security interests:  
(i) relating to the provision of services as carried out directl y or indirectly 
for the purpose of provisioning a military establishment;  
(ii) relating to fissionable  and fusionable  materials or the materials from 
which they are derived;  
(iii) taken in time of war or other emergency in international relations; or  
(c) to prevent any Party from taking any action in pursuance of its obligations 
under the United Nations Charter for the maintenance of international peace and 
security.  
2. The PARTIES shall be informed to the fullest extent possible of measu res taken under 
paragraphs 1(b) and (c) and of their termination .458 
8.28.   Concerning the negotiations of the security exceptions in the TRIPS  Agreement s, the 
United  States  submits two documents.  
8.29.   The first document is an excerpt from the draft text of the TRIPS  Agreement  circulated on 
23 July 1990 at the request of the Chairperson of the Negotiating Group on Trade -Related Aspects 
on Intellectual Property Rights, including Trade in Counterfeit Goods.459 The draft text did not include 
a provision on security excepti ons, but incorporated GATT provisions "to the extent that this PART 
does not provide for more specific rights, obligations and exceptions thereof".460  
8.30.   The second document is an excerpt from the December 1991 draft text of the TRIPS circulated 
by the Chairp erson of the Trade Negotiations Committee. The draft text included a "Security 
Exceptions" provision with the following text:  
Article  73: Security Exceptions  
Nothing in this Agreement shall be construed:  
(a) to require any PARTY to furnish any information the disclosure of which it 
considers contrary to its essential security interests; or  
(b) to prevent any PARTY from taking any action which it considers necessary for 
the protection of its essential security interests:  
(i) relating to fissionable materials  or the materials from which they are 
derived;  
(ii) relating to the traffic in arms, ammunition and implements of war and 
to such traffic in other goods and materials as is carried on directly or 
indirectly for the purpose of supplying a military establish ment;  
(iii) taken in time of war or other emergency in international relations; or  
 
458 Draft Final Act Embodying the Results of the Uruguay Round (20  December  1991), (Exhi bit USA -
190), pp. 18 -19. 
459 Negotiating Group on Trade -Related Aspects of Intellectual Property Rights, including Trade in 
Counterfeit Goods, Status of Work in the Negotiating Group – Chairman's Report to the GNG (23 July 1990), 
MTN.GNG/NG11/W/76, (Exhibit USA-191). 
460 Draft Text of the TRIPS  Agreement , (Exhibit USA -191), p. 78.  WT/DS544/R/Suppl.1  
 
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  (c) to prevent any PARTY from taking any action in pursuance of its obligations 
under the United Nations Charter for the maintenance of international peace and 
security.461 
8.31.   In this dispute, t he United  States  argues that Uruguay Round negotiators decided to include 
in GATS and TRIPS security exceptions mirroring Article  XXI of the GATT  1947 in relevant part.462 
According to the United  States , the Uruguay Round drafters deliberat ely chose to replicate in the 
GATS and TRIPS elements of the security exceptions that make them self -judging, namely the 
reference to action that a Member "considers necessary" and the separation from the discipline on 
"general exceptions".463 The United  States  notes that a proposal by Switzerland and a joint proposal 
of 11 delegations sought to remove the "it considers" language in the GATS security exceptions and 
to add requirements against discrimination, circumvention of the disciplines of the GATS, and 
disguised restrictions to trade.464 The United  States  further notes that proposals tabled by, 
respectively, the European  Communities , Japan, and the United  States  retained the "it considers" 
language as well as the reference to action "taken i n time of war or other emergency in international 
relations", separated the security exceptions from "general exceptions", and did not include "non -
discrimination requirements" in the text of the security exceptions.465  
8.32.   The United  States  notes that the pro posal submitted by the European  Communities  included 
the following language at the end of the national security exceptions: "In taking action under this 
paragraph, parties shall take into consideration the interests of third parties which may be 
affected".466 According to the United  States , this suggests that the European  Communities  
acknowledged that "it was the parties – now Members – that would be choosing whether to take 
action under this provision".467 The United  States  further argues that, by providing in its proposal 
that "All parties affected by action under this Article  retain  their full rights under this Agreement", 
the European  Communities  acknowledged the 1982 Decision468 and "yet retained the self -judging 
reference to actions a Member 'considers necessary for the protection of its essential security 
interests'".469 
8.33.   The United  States  maintains that the draft texts of the GATS circulated by the Chairperson 
reflected in relevant part the proposals submitted by the European  Communities , Japan, and the 
United  States . Specifically, the United  States  argues that the drafters "deliber ately" chose to 
separate security exceptions from general exceptions, subjecting only the latter to review for non -
discrimination, leaving the former "self -judging".470 
8.34.   The United  States  finally refers to the negotiating history of the security exceptions i n the 
TRIPS  Agreement .471 According to the United  States , drafters were presented again with the choice 
of whether to diverge from the language of Article  XXI of the GATT  1947, and eventually decided 
again "to use the language of Article  XXI in the security  exceptions at TRIPS Article  73".472 The 
United  States  concludes that negotiators were aware of how Article  XXI of the GATT  1947 had been 
interpreted, and "were comfortable continuing with that interpretation".473 
8.35.   China  does not  specifically comment on these  documents . 
 
461 Draft Final Act Embodying the Results of the Uruguay Round (20  December  1991), (Exhibit USA -
190), p. 90.  
462 United  States ' second written submission, para.  50. 
463 United  States ' second written submission, paras.  50-51. 
464 United  States ' second written submission, paras.  52-53. 
465 United  States ' second written submission, para.  54. 
466 United  States ' second written submission, para.  55; Communication from the European  Communities  
– Draft General Agreement on Trade in Services, (Exhibit USA -186), p. 13.  
467 United  States ' second written submission, para.  55. 
468 See para.  6.3 above.  
469 United  States ' second written submission, para.  55. 
470 United  States ' second written submission, paras.  56-57. 
471 United  States ' second written submission, para.  58. 
472 United  States ' second written submission, para.  59. 
473 United  States ' second written submission, para.  59. WT/DS544/R/Suppl.1  
 
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  8.1.3   Negotiations of the DSU  
8.36.   The United  States  submits materials related to the negotiations of the DSU and a proposal by 
Nicaragua.  
8.37.   On 3 November  1987, Nicaragua submitted a communication to the Negotiating Group on 
Dispute Settlement.474 Nicaragua shared its experience in GATT dispute settlement and submitted 
several proposals for consideration during the negotiations, including the following:  
No contracting party may oppose examination of the applicability of GATT provisions 
and compliance with the m. 
… 
Any panel must reach a clear conclusion on nullification or impairment of benefits.475 
8.38.   At a meeting held on 20  November  1987, the negotiators discussed, among other topics, 
"GATT Article  XXI and its review by a GATT panel".476 The delegation of Chile submitted an 
addendum to the note, summarizing its statements at the meeting.477 Referring to the 
communication of Nicaragua discussed above, Chile considered "pertinent" the contents of large 
parts of the document.478 However, Chile  "found unacceptable the introduction and the extremely 
politicized framework of the document, as well the lack of any reference to Article  XXI of the General 
Agreement, which is fully valid".479 
8.39.   The United  States  argues that Nicaragua's proposal was not incorporated into the DSU.480 The 
United  States  further submits that other statements by the drafters of the DSU confirm that "the 
DSU does not alter the ordinary meaning of the terms of the covered agreements".481 According to 
the United  States , the decision of the drafters "not to include language in the DSU that would alter 
the interpretation of Article  XXI" confirms that Uruguay Round negotiators were aware of the existing 
interpretation of Article  XXI of the GATT  1947 and agreed with it.482 
8.40.   China  does not specifically comment on these documents . 
8.1.4   The formulation of security exceptions in international agreements concluded after 
1947  
8.41.   The United  States  argues that the choice of Uruguay Round negotiators to keep the la nguage 
of Article  XXI of the GATT  1947 and to substantially replicate it in other covered agreements is 
notable in light of the approaches to security exceptions taken in other trade agreements negotiated 
after 1947.483 According to the United  States , while  some agreements (such as the 1985 Agreement 
between Israel and the United  States ) incorporated by reference Article  XXI of the GATT  1947, other 
agreements (such as the Treaty of Rome and the Agreement on the European Economic Area) 
 
474 Negotiating Group on Dispute Settlement, Communication from Nicaragua (3  November  1987), 
MTN.GNG/NG13/W/15, (Exhibit USA -192). 
475 Communication from Nicara gua, (Exhibit USA -192), p. 8.  
476A note by the Secretariat summarizing the meeting does not provide details about the discussion 
(Negotiating Group on Dispute Settlement, Meeting of 20  November  1987 – Note by the Secretariat, 
MTN.GNG/NG13/5, (Exhibit USA -193), p. 3).  
477 Negotiating Group on Dispute Settlement, Meeting of 20  November  1987 – Note by the Secretariat 
(Addendum), MTN.GNG/NG13/5/Add.1, (Exhibit USA -194). 
478 Negotiating Group on Dispute Settlement, Meeting of 20  November  1987 – Note by the Secretariat 
(Addendum), (Exhibit USA -194), p. 2.  
479 Negotiating Group on Dispute Settlement, Meeting of 20  November  1987 – Note by the Secretariat 
(Addendum), (Exhibit USA -194), p. 2.  
480 United  States ' second written submission, para.  62. 
481 United  States ' second written submission, para.  63; Negotiating Group on Dispute Settlement, 
Meeting of 25  June 1987 – Note by the Secretariat, MTN.GNG/NG13/2, (Exhibit USA -195); Negotiating Group 
on Dispute Settlement, Meeting of 11  July 1988 – Note by the Secretariat, MT N.GNG/NG13/9, (Exhibit USA -
196). 
482 United  States ' second written submission, para.  64. 
483 United  States ' second written submission, paras.  65 and 76.  WT/DS544/R/Suppl.1  
 
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  "reflect significant de viations from the text of Article  XXI, including by expressly providing for the 
review of measures taken by a government for essential security purposes".484  
8.42.   China  does not specifically comment on these documents . 
8.2  Assessment by the Panel  
8.43.   In this section of  the Appendix, the Panel reviews four sets of documents submitted by the 
United  States  concerning: (i)  proposals to modify the wording of Article  XXI and the ensuing 
discussion; (ii)  the negotiations of the security exceptions in the GATS and in the TRIPS  Agreement ; 
(iii) the negotiations of the DSU; and (iv)  the formulation of security exceptions in other international 
agreements.  
8.44.   The Panel recalls its understanding that Article  32 of the Vienna  Convention  does not 
exhaustively define the types of su pplementary means of interpretation that an interpreter may have 
recourse to in order to confirm the meaning of treaty terms.485 The first three sets of documents 
listed above naturally fall within the meaning of "preparatory work" for the purposes of Article 32 of 
the Vienna  Convention . One of these sets of documents pertains directly to the negotiations of 
Article  XXI of the GATT  1994, which is the relevant treaty provision in this analysis. Documents 
concerning the negotiations of the security exceptions in the GATS and in the TRIPS  Agreement , as 
well as those relating to the negotiations of the DSU, could also be considered "preparatory work" 
of the relevant covered agreements.  
8.45.   Concerning the negotiations that led to the transposition of Article  XXI of th e GATT  1947, 
unaltered in wording, into the GATT  1994, the Panel is not persuaded that the documents reveal, as 
the United  States  argues, that the negotiators understood Article  XXI to be "self -judging" and that 
they therefore rejected proposals that would  make it subject to review. Specifically, the Panel does 
not find anything in these documents that would point to a shared understanding by the negotiators 
that Article  XXI had consistently been interpreted as a "self -judging" provision. The Panel notes th at 
in the discussions that followed the proposals submitted by Nicaragua and Argentina, various 
participants disagreed with the idea that Article  XXI was entirely "self -judging". While some 
participants argued that it was for the individual contracting par ty concerned only " to judge what its 
security interests were ", others maintained that action taken under Article  XXI could be found to be 
inconsistent with the GATT, thereby implying the reviewability of the provision.486 Finally, the Panel 
considers it sig nificant that participants referred to Article  XXIII as "the appropriate safeguard" 
against abuses of the invocation of the security exceptions.487  
8.46.   With regard to the negotiations of the security exceptions in the GATS and in the 
TRIPS  Agreement , the Panel  notes that the materials do not show any explicit discussion on the 
reviewability of the provisions in the event of a dispute. Accordingly, and bearing in mind that the 
documents refer to similar provisions, but not directly to the relevant provision in t his dispute, the 
Panel does not consider these documents to provide relevant guidance for the contested issues in 
this dispute regarding Article  XXI of the GATT  1994. 
8.47.   The Panel has also reviewed documents pertaining to the negotiations of the DSU. The Pane l 
notes that the three documents submitted concern inconclusive discussions that took place at the 
early stages of the negotiations of the DSU. Furthermore, the Panel is of the view that these 
documents should be considered against the background of the fi nal text of the DSU, which makes 
no explicit reference to Article  XXI of the GATT  1994 or the potential review of its invocation in 
dispute settlement proceedings. Therefore, the Panel does not consider these documents to provide 
relevant guidance for the contested issues in this dispute regarding Article  XXI of the GATT  1994. 
8.48.   With regard to the security exceptions in other international agreements concluded between 
1947 and the Uruguay Round, the Panel considers that they could in theory fall within the br oader 
 
484 United  States ' second written submission, para.  65; Agreement on the Establishment of a Free Trade 
Area between the Government of Israel and the Government of the United  States  of America, (Exhibit USA -
197); The Treaty of Rome, (Exhibit USA -181);  Agreement on the European Economic Area (EEA), (Exhibit 
USA-221). 
485 See para.  2.33 above.  
486 See para.  8.13 above.  
487 See para.  8.15 above.  WT/DS544/R/Suppl.1  
 
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  residual category of supplementary means of interpretation under Article  32 of the 
Vienna  Convention  other than preparatory work and the circumstances of the conclusion of a treaty. 
However, the Panel is not persuaded that the specific documents subm itted are relevant to the 
contested issues in this dispute. One of these documents is the 1985 "Agreement on the 
Establishment of a Free Trade Area between the Government of Israel and the Government of the 
United States of America".488 Article  7 of the Agr eement incorporates by reference Articles XX and 
XXI of the GATT  1947.489 In the Panel's view, nothing in this document addresses the issue of the 
nature of Article  XXI as "self -judging" or otherwise. The other two documents refer to the security 
exceptions and dispute settlement rules in the Treaty of Rome and in the EEA Agreement. Neither 
makes any reference to Article  XXI of the GATT  1947.490 Furthermore, those prov isions relate to 
agreements with their own detailed rules for the settlement of disputes, separate and distinct from 
those of the GATT or the WTO. In any event, there is no indication of the relation of these documents 
to the negotiations of Article  XXI of  the GATT  1994 or of the security exceptions in other covered 
agreements. The sole fact that such "alternative approaches"491 to security exceptions existed at the 
time of the Uruguay Round negotiations is not sufficient in itself for the provisions in othe r 
agreements to be considered as relevant elements for the purposes of interpreting Article  XXI of the 
GATT  1994. 
8.49.   Based on the foregoing, t he Panel does not find support in these materials for the "self -judging 
nature" of  Article  XXI(b) of the GATT  1994 as argued  by the United  States . Accordingly, the analysis 
of these materials confirms, or at least does not undermine, the Panel's interpretation of 
Article  XXI(b) of the GATT  1994. 
 
__________  
 
488 Israel – United  States  Agreement on the Establishment of a Free Trade Area, (Exhibit USA -197). 
489 Israel – United  States  Agreement on the Establishment of a Free Trade Area, (Exhibit USA -197), 
p. 2. 
490 The Treaty of Rome, (Exhibit USA -181); EEA Agreement, (Exhibit USA -221). 
491 United  States ' second written submission, para.  76.