WT/DS556/R/Suppl.1  
 
9 December 2022 
(22-9176) Page: 1/73 
  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 556/R. 
 
_______________  
  WT/DS556/R/Suppl.1  
 
- 2 - 
 
  TABLE OF CONTENTS  
 
APPENDIX  A: MATERIALS SUBMITTED BY THE PARTIES ON URUGUAY ROUND 
NEGOTIATIONS OF THE AGR EEMENT 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  ................................ ................................ .............................. 17 
2.1.3    May 1947 proposal  ................................ ................................ ................................ ..18 
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  ................................ ............................. 22 
2.1.7    "An Informal Summary of the ITO Charter" (21  November  1947)  ................................ ..23 
2.2   Assessment by the Panel  ................................ ................................ ............................. 23 
3   NEGOTIATIONS OF THE ITO CHARTER IN 1948  ................................ .........................  27 
3.1   Arguments and materials submitted by the parti es ................................ ......................... 27 
3.1.1    9 January  1948 – Report of Working Party of Sub -Committee G of Committee VI on 
Chapter VIII (Settlement of Differenc es – Interpretation) ................................ ........................ 28 
3.1.2    13 January  1948 – Meeting of Sixth Committee: Organization, Sub -Committee on  
Chapter VIII (Settle ment of Differences – Interpretation) ................................ ........................ 29 
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  ................................ ................................ ................................ ...................... 32 
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/DS556/R/Suppl.1  
 
- 3 - 
 
  4.1.2    US Delegation, Economic Disarmament (Draft) (1946)  ................................ ................. 36 
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)  ................................ ....37 
4.1.5    US Delegation, Minutes of the Delegation Meeting (4  July 1947)  ................................ ....39 
4.1.6    US Delegation, Memorandum of Mr Rubin (14  July 1947) ................................ .............. 40 
4.2   Assessment by the Panel  ................................ ................................ ............................. 42 
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 ............... 46 
5.1.2    Statements by Czechoslovakia and the United  States  ................................ ................... 46 
5.1.3    Debate and Decision of the CONTRACTING PARTIES  ................................ .................... 47 
5.2   Assessment by the Panel  ................................ ................................ ............................. 50 
6   DECISION OF THE GATT  CONTRACTING PARTIES CONCERNING ARTICLE  XXI OF  
THE GATT  1947 (1982)  ................................ ................................ ................................ .. 52 
6.1   Arguments and materials submitted by the parties  ................................ ......................... 52 
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  ................................ ................................ ................................ .......................... 55 
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 ................................ .............. 56 
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  ................................ ................................ ............................. 63 
8   URUGUAY ROUND NEGOTIATIONS  ................................ ................................ ............  64 
8.1   Arguments and materials submitted by the parties  ................................ ......................... 64 
8.1.1    Proposals regarding Article  XXI at the Negotiating Group on GATT Articles  ...................... 64 
8.1.2    The drafti ng of security exceptions in the GATS and in the TRIPS  Agreement  .................. 67 
8.1.3    Negotiations of the DSU  ................................ ................................ ........................... 71 
8.1.4    The formulation of security exceptions in international agreements concluded  
after 1947 ................................ ................................ ................................ ......................... 72 
8.2   Assessment by the Panel  ................................ ................................ ............................. 72 
 
  WT/DS556/R/Suppl.1  
 
- 4 - 
 
   
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 Safegua rds, Draft Text of an 
Agreement (31  October  1990), MTN.GNG/NG9/W/25/Rev.3  
 
  WT/DS556/R/Suppl.1  
 
- 5 - 
 
  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 7.8.2  of the Panel  Report  based on the interpretation of 
Article  11.1(c) of the Agreement on Safeguards according to customary rules of interpretation of 
public internatio nal law, including Articles 31 and 33 of the Vienna  Convention . The Panel does not 
consider that its interpretive conclusions regarding Article  11.1(c) of the Agreement on Safeguards 
leave the meaning of that provision ambiguous or obscure, nor does the Pa nel find that they lead to 
a result which is manifestly absurd or unreasonable. The Panel also notes the parties' agreement 
that recourse 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 submitted by the parties 
as the negotiating history of Article  11.1(c) and their arguments in relation to these ma terials, 
followed by an assessment of the contents of these materials in relation to the interpretive issues 
raised in this dispute.  
2  ARGUMENTS AND 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 provide 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 draf t, 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 t erritory only in a situation in which other provisions of the 
General Agreement do 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 dr aft 
on 13  July 1990 "indicating the general trend of discussion of the Negotiating 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 remedi es" under other GATT provisions. Instead, 
 
1 See e.g. United  States ' responses to Panel question No.  98; Switzerland's response to Panel question 
No. 98.  
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 produc t 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 , (Exhibit 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 prov ision on application to products from all sources to 
another paragraph.  
4 July 1990 draft text , (Exhibit USA -217), p. 1.  WT/DS556/R/Suppl.1  
 
- 6 - 
 
  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 paragr aph 1 above do 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, protocols, and 
agreements and arrangements neg otiated  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 
agreem ent 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 "Proh ibition and Elimination of Certain 
Measures", the draft contained the following 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 p arty 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  provisi ons of Article  XIX and 
this agreement or phased out in accordance  with paragraph 25 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, including 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 th e Uruguay Round ".10 Section  VI of the 
draft agreement on safeguards addressed "Prohibition 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 prod ucts 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 r estraints, orderly marketing 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 contracting 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 maintaine d by a contracting party 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/DS556/R/Suppl.1  
 
- 7 - 
 
  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 measure 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, expo rt-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 ear ly 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 t hat 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 agre ement" 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 t he final text of Article  11.1(c) with a "more definite statement" that the Agreement on 
Safeguards "does not apply" 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 provisions 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 A ct 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 Unite d 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 c aused to continue in accordance with provisions of the GATT  1994 
other than Article  XIX".18 
 
11 Draft Final Act Embodyin g 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.  221-222.  
13 United  States ' second written submission, paras.  223-224 (referring to July 1990 draft text , (Exhibit 
USA-217)). 
14 United  States ' second written submission, para.  226. (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 become 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 submis sion, paras.  229-230. 
18 United  States ' response to Panel question No.  98. WT/DS556/R/Suppl.1  
 
- 8 - 
 
  2.10.   Switzerland  refers to the evolution of the provision that would become Article  11.1(c) between 
July 1990 and December 1991. Switzerland considers the relevant draft texts to indicate  that by 
agreeing to safeguard disciplines, WTO Members would not limit their rights to impose other 
restrictive measures permitted under specific provis ions of the GATT or other covered agreements.19 
Switzerland further argues that at the same time, other provisions of what became Article  11 of the 
Agreement on Safeguards made clear that safeguard measures must be consistent with Article  XIX 
of the GATT a nd the Agreement on Safeguards , and that grey area measures are prohibited.20  
2.11.   In addition, Switzerland notes that while earlier drafts of the Agreement on Safeguards 
included the terms "in conformity with" and "consistent with", these were later replaced by the terms 
"pursuant to". For Switzerland, this confirms that what is relevant for Article  11.1(c) is whether the 
measure taken "falls within the scope of" provisions "other than" Article  XIX. With respect to the 
terms "other than", Switzerland contends that the negotiating history indicates that "measures to 
which the Agreement on Safeguards does not apply are measures taken pursuant to other provisions 
except Article  XIX of the GATT."21  
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 text 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 to 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 observatio ns on the parties' arguments 
concerning other paragraphs of the draft texts considered in this Appendix 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 proposed agreement to certain measures. Nevertheless, negotiators 
acknowledged the  rights and obligations of contracting parties provided in other GATT provisi ons. In 
this regard, the June 1989 and the January 1990 draft texts recognized  certain "specific remedies " 
provided in "other provisions of the General Agreement" .22 Notably,  the July 1990 draft stipulated 
that the provision of that draft text on what "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".23 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 r ights 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 framed 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 provisions  of the General 
Agreement ".24 In this manner, the draft text of October 1990 recognized  that contracting parties 
were permitted to seek or take trade -restrictive measures consistent with GATT provisions other 
than Article  XIX, notwithstanding the disciplines o f 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 
 
19 Switzerland's response to Panel question No.  94 (referring to Exhibit CHE -84, which states that the 
obligation "not to take safeguard action except through invocation of Article  XIX" is "[w]ithout prejudice to the 
rights and obligations of GATT contracting parties regarding restrictive measures permitted for specified 
purposes under the terms of other GATT provisions"). See also Switzerland's response to Panel question 
No. 98. 
20 Switzerland's response to Panel question No.  98. 
21 Switzerland's response to Panel question No.  98. (emphasis original)  
22 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").  
23 July 1990 draft text , (Exhibit USA -217), p. 3. (emphasis added)  
24 October 1990 draft text , (Exhibit USA -220), p. 9.  WT/DS556/R/Suppl.1  
 
- 9 - 
 
  agreement "esta blishes 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 ".25  
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) 
removes such measures from the scope of application  of the Agre ement .26 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 t he Agreement on Safeguards . Accordingly, the negotiating history 
of the Agreement on Safeguards supports  the Panel's interpretation 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).27 
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 of the 
General Agreement" from the scope of the proposed agreement on safeguards.28 The fact that 
negotiators deleted draft language req uiring 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 ".29 This explicit reference to conformity was retained in the Draft Final 
Act of the Uruguay 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".30 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 R ound.31 By contrast, similar terms from the early 
draft texts of Article  11.1(c) were deleted 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 
regardi ng the meaning of "pursuant to" in Article  11.1(c).  
 
25 Draft Final Act Embodying the Results of the Uruguay Round (20  December  1991) , (Exhibit USA-190), 
p. M.7. (emphasis added)  
26 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; closing statement at the second meeting of the Panel, 
para. 35. See also Switzerland's response to Panel question Nos. 81 and 94). 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 notes that these communications do not indicate a shared 
understanding by all negotiators on the scope of the proposed agreement on safeguards or the meani ng 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).  
27 The Panel notes that the placement of the various draft texts of Ar ticle 11.1(c) changed in the course 
of negotiations. The Panel does not consider the placement of these 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).  
28 Draft Final Act Embodying the Results of the Uruguay Round (20  December  1991) , (Exhibit USA -190), 
p. M.7 (emphasis added).  
29 October 1990 draft text , (Exhibit USA -220), p. 9.  
30 Draft Final Act Embodying the Results of the Uruguay Round (20  December  1991) , (Exhibit USA -190), 
p. M.6. (emphasis added)  
31 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 Urugu ay Round 
(20 December  1991) , (Exhibit USA -190), p. M.7).  WT/DS556/R/Suppl.1  
 
- 10 - 
 
  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 "32, "other provisions of the General 
Agreement"33, and "specific provisions of the General Agreement other than Article  XIX".34 The Panel 
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 respect 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 reme dies" in "other GATT provisions"35 and "specific provisions of the General 
Agreement other  than Article  XIX".36 The Panel does not consider that the word "specific" in these 
draft texts in itself indicates  an additional requirement or limitation of being e xclusively pursuant to 
another GATT provision , and in any event, this word was removed from subsequent draft texts of 
Article  11.1(c) of the Agreement on Safeguards.37 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 paragraphs of the draft texts considered in 
this Appendix  and certain additional materials.38 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 
measu res within the scope of Article  11.1(b) of the Agreement on Safeguards. As discussed in 
section 7.8.2  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 th e terms "pursuant to" and 
"other than" in that provision. Accordingly, the Panel 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 an d 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 33 of the Vienna  Convention .  
_______________  
 
 
 
 
 
32 June 1989 draft text , (Exhibit USA -215), p. 1. 
33 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. 
34 July 1990 draft text , (Exhibit USA -217), p. 3.  
35 June 1989 draft text , (Exhibit USA -215), p. 1. See also January 1990 draft text , (Exhibit USA -216), p. 
1. 
36 July 1990 draft text , (Exhibit USA -217), p. 3.  
37 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.  
38 See United  States ' response to Panel question Nos. 18, 19 and 98; second  written submission, 
sections IV.A.5 and IV.B.4.a; and opening statement at the second meeting of the Panel, para.  23. See also 
Switzerland's opening statement at the second meeting of the Panel, paras.  24-25; response to Panel question 
No. 94. WT/DS556/R/Suppl.1  
 
- 11 - 
 
   
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), G ATT/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 an d 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 the  
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 an d 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 Working 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/DS556/R/Suppl.1  
 
- 12 - 
 
  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 VIII (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 Employment, 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 Dele gation, 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 Sta te, Memorandum of Conversation 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 on "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 Confe rence 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 C anada, "Trade 
Restrictions Affecting 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 Me eting (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/DS556/R/Suppl.1  
 
- 13 - 
 
  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 Committee 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 Articles, 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, Commu nication 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 Multilat eral 
Framework for Trade in Services (23  July 1990), 
MTN.GNS/35  
USA-189 -- Trade Negotiations Committee, Draft Final 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, MTN.GNG/NG13/2  WT/DS556/R/Suppl.1  
 
- 14 - 
 
  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/DS556/R/Suppl.1  
 
- 15 - 
 
  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 wordin g 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 a greement 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 Mu ltilateral 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 "other 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 wi th 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 reg arding its interpretation". 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 interpretation 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 relati on to the interpretation 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 materials 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 (secti on 8).  
1.4.  In each of 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 negoti ating 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 provi sionally applied until one year after the entry into 
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 inte rpretation of Article  XXI of the GATT  1994. (See the 
parties' responses to Panel question No.  24). 
3 United  States ' first written submission, para.  56. WT/DS556/R/Suppl.1  
 
- 16 - 
 
  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.  Switzerland argue s that the temporal relationship between the preparatory work of the 
GATT  1947 and the conclusion of the WTO  Agreement  is remote, thereby diminishing the relevance 
of the preparatory work of the GATT  1947.5 Switzerland notes that the GATT  1994 is legally distinct 
from the GATT 1947 and specifically refer s to the evolution of the rules on dispute settlement from 
the GATT  1947 to the WTO as a decisive factor for the reduced relevance of pre -1947 negotiating 
history.6 Switzerland consider s that although the negotiating materials refer to equivalent or similar 
provisions in the GATT  1947 and the GATT  1994, these should have marginal relevance under 
Article  32 of the Vienna  Convention  and cannot inform the "standard of review" applicable to 
Article XXI(b) of the GATT  1994, because the latter is now governed by the DSU.7 
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 im plements 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 o f the essential security interests of a 
Member.8 
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 inclu de the phrase "it considers necessary", which features instead in the final text of 
Article  XXI of the GATT  1947.9  
 
4 United  States ' second written submission, para.  46. 
5 Switzerland's response to Panel question No.  58. 
6 Switzerland's response to Panel question No s. 57 and 58. 
7 Switzerland's response to Panel question No.  57. 
8 United Nations Conference on Trade and Development, Report of the First Session of the Prepara tory 
Committee (31  October  1946), E/PC/T/33 , (Exhibit USA -31), Annexure 11  (United  States  Draft Charter) , pp. 
60 and 63.  
9 United  States ' first written submission, para.  59. The United  States  also refers to a statement 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 another 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 WT/DS556/R/Suppl.1  
 
- 17 - 
 
  2.5.  Switzerland  does not specifically comment on this document . 
2.1.2   March 1947  draft text 
2.6.  A report of the Drafting Committee of the Preparatory Com mittee of the United Nations 
Conference on Trade and Employment, dated 5  March  1947, contained a draft general exceptions 
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). Th e 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 
constitute 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 
establishment;  
(e) In time of war or oth er emergency in international relations, relating to the 
protection of the essential security interests of a contracting party.10 
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  1947.11 
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 GATT  1994 as it currently stands.12 
According to the United  States , this structure and, specifically, the presence of the chapeau  suggest 
that, at the time of the draft, not all d elegations viewed the security exceptions as "self -judging".13  
2.8.  Switzerland does not specifically comment on this document .14 
 
adoption of all measures regarded as necessary for the protection of national interests in time of war or other 
nation al 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)  
10 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 rela ting 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).  
11 United  States ' first written submission, para.  61. 
12 United  States ' first written submission, para.  61. 
13 United  States ' first written submission, para.  61. 
14 The European  Union , in its third -party submission, disagrees with the United  States  on the 
significance of subjecting the 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 agreements, 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.  86 (referring to Articles  XIV.1 and XXIV of the 
GATT  1994)) . WT/DS556/R/Suppl.1  
 
- 18 - 
 
  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.15 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: …  
(c) Relating to fissionable materials;  
(d) Relating to the traffic in arms, a mmunition 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 ess ential security interests of a contracting party.16  
2.10.   The United  States  notes that, under the proposed amendment, security exceptions would be 
formally separated from other exceptions and would apply to the entire ITO Charter as opposed to 
a specific chapte r thereof.17  
2.11.   Switzerland  disagrees with the United  States ' interpretation of the meaning of the proposed 
amendments. Switzerland notes that the separation of the security exceptions from the general 
exceptions does not indicate the drafters' intention to render the security exceptions self -judging as 
that amendment was merely aimed at ensuring the applicability of the security exceptions to the 
ITO Charter as a whole .18 
2.1.4   4 July 1947  proposal  
2.12.   On 4 July 1947, the United  States  proposed the addition of a new c hapter 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 a ny 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 c arried 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;  
 
15 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. 
16 May 1947 Proposal by the US Delegation, ( Exhibit USA -34), p. 5.  
17 United  States ' first written submission, para.  62. 
18 Switzerland's second written submission, para.  211. WT/DS556/R/Suppl.1  
 
- 19 - 
 
  d) Undertaken in pursuance of obligations under the United Nat ions Charter for the 
maintenance of international peace and security.19 
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.20 In the United  States ' view, the text as modified 
explicitly indicated that the provision could be invoked based on an ITO member's own judg ment.21 
Furthermore, the United  States  submits that this reformulation marked a distinction between the 
"self-judging" nature of exception s pertaining to security matters and exceptions related to the 
protection of other interests.22  
2.14.   Switzerland  disagrees with the United  States ' interpretation of the meaning of the proposed 
amendments. Switzerland notes that the separation of the security exceptions from the general 
exceptions does not indicate the drafters' intention to render the security exceptions self -judging as 
that amendment was merely aimed at ensuring the applicability of the security exceptions to the 
ITO Charter as a who le.23 
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 1947.24  
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.25 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".26 
2.17.   The delegate of the United  States  took the floor to respond to these questions as the dr aft 
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 simply referred  to "measures relating to a Member's security 
interests".27 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 prevent 
the ado ption of protection for maintaining industries under every conceivable circumstance".28  
 
19 United Nations Economic and Social Council, Second Session of the Preparat ory 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.  
20 United  States ' first written submission, para.  64. 
21 United  States ' first written submission, para.  64. 
22 United  States ' first written submission, para.  64. 
23 Switzerland's second written submission, para.  211. 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, 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.  88). 
24 The Second Session of the Preparatory Committee of the United Nations Conference on Trade and 
Employment was divided into two c ommissions, 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 sub mitted for review at 
final plenary meetings of the Preparatory Committee. (See 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 , (Exhibit USA -37), p. vi, fn  1). 
25 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 , (Exhibit USA -41), p. 19.  
26 Report of the 24  July 1947 Meeting , (Exhibit USA -41), p. 19.  
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; United Nations Economic and Social 
Council, Second Session of the Preparatory Committee of the United Nations Conference on Trade and WT/DS556/R/Suppl.1  
 
- 20 - 
 
  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 actions 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 interests are."29 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.30 Specifi cally, 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.31 The delegate of the 
United  States  concluded the intervention by affirmin g 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.32 
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 which the Netherlands 
Delegate has drawn our attention".33 
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.34 The delegate of the United  States  took the flo or 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 text35, 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 of nullifying or impairing any object of this Charter".36  
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".37 The 
delegate of 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 Me mber 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.38 The delegate of the United  States  thus noted that, in 
those circumstances, the affecte d ITO member "would have the right to seek redress under 
Article  35" of the draft text of the ITO Charter.39 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".40 The delegate of Australia intervened next to confirm that its delegation 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  94.41 Following some additional 
 
Employment, Corrigendum to Verbatim Report of Thirty -Third Meeting of Commission A (30  July 1947), 
E/PC/T/A/PV/33.Corr.3 , (Exhibit USA-92). 
29 Report of the 24  July 1947 Meeting , (Exhibit USA -41), p. 20; Corrigendum to Report of the 24 July 
1947 Meeting , (Exhibit USA-92). 
30 Report of the 24  July 1947 Meeting , (Exhibit USA -41), p. 20.  
31 Report of the 24  July 1947 Meeting , (Exhibit USA -41), p. 20. 
32 Report of the 24  July 1947 Meeting , (Exhibit USA -41), p. 21.  
33 Report of the 24  July 1947 Meeting , (Exhibit USA -41), p. 21.  
34 Report of the 24  July 1947 Meeting , (Exhibit USA -41), p. 26.  
35 Report of the 24  July 1947 Meeting , (Exhibit USA -41), p. 26. 
36 Report of the Drafting Committee of the Preparatory Committee, (Exhibit USA -33), p. 30.  
37 Report of the 24  July 1947 Meeting , (Exhibit USA -41), p. 26.  
38 Report of the 24  July 1947 Meeting , (Exhibit USA -41), p. 26.  
39 Report of the 24  July 1947 Meeting , (Exhibit USA -41), p. 27.  
40 Report of the 24  July 1947 Meeting , (Exhibit USA -41), p. 27.  
41 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". WT/DS556/R/Suppl.1  
 
- 21 - 
 
  discussion of the applicability of Article  35 to the proposed security exceptions42, the Chairperson 
concluded the discussions noting that the Committee had considered and approved the draft of 
Article  94.43 
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.44 According to the United  States , the deba te further shows that 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).45 Applied to the WTO context, the 
United  States  argues that the discussion i ndicates that essential security interests measures cannot 
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.46 
2.23.   Switzerland notes that the United  States  confirmed during the 24  July 1947 meeting that 
Article  35 of the draft text of the ITO Charter, covering both violation and non -violation complaints, 
would apply to the security exceptions.47 According to Switzerland, the exchanges at the meeting of 
the negotiating committee prove th at the drafters did not want to have a too broad exception that 
would permit "anything under the sun", and accordingly did not envisage a self -judging security 
exceptions provision.48 Furthermore, Switzerland argues that the drafters did not intend to subj ect 
security measures exclusively to non -violation complaints, as the discussion reveals that the entirety 
of Article  35 would be applicable to measures taken pursuant to Article  94.49 Switzerland further 
notes that it appears that the negotiators were discussing the availability of non -violation complaints 
where measures meet the requirements of the security exceptions.50 
2.24.   Certain third parties provided their views on the 24  July 1947 meeting. According to the 
European  Union , the discuss ion 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 t he 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 co mplaints were the only available response to the 
invocation of the security exceptions.51 Türkiye refers to the exchanges within the negotiating 
committee to argue that the United  States  itself recognized that the security exceptions had limited 
scope. Tür kiye further maintains that nothing in the negotiations suggests that non -violation 
complaints were considered to be the only available remedy.52 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 m embers' rights of redress in respect of the 
exception would be limited.53 
 
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 "an 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).  
42 Report of the 24  July 1947 Meeting , (Exhibit USA -41), p. 29.  
43 Report of the 24  July 1947 Meeting , (Exhibit USA -41), p. 30.  
44 United  States ' first written submission, para.  71. 
45 United  States ' first written submission, para.  71. 
46 United States ' first written submission, para.  71; second written submission, para.  49. 
47 Switzerland's first written submission, fn  558; second written submission, para.  218, response to 
Panel question No.  59. 
48 Switzerland's second written submission, para.  215. 
49 Switzerland's second written submission, para.  218. 
50 Switzerland's second written submission, paras.  219-220. 
51 European  Union 's third -party submission, paras.   91-100. 
52 Türkiye's third -party submission, paras.  3.73–3.77 
53 Hong Kong, China's third -party submission, para.  43. WT/DS556/R/Suppl.1  
 
- 22 - 
 
  2.1.6   31 July 1947  and 19  August  1947 Draft Texts  
2.25.   A report of the Preparatory Committee of the United Nations Confe rence 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 an y 
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.54 
* 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 essential 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) 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;  
(iii) taken in time of war or other emergency in international relations; or  
(c) to prevent any Member from taking any actio n in pursuance of its obligations under 
the United Nations Charter for the maintenance of international peace and security.55 
2.27.   The United  States  notes that, in this revised text, the language of the security exceptions 
changed, in relevant part, from "actio n which it may consider necessary" to "action which it considers 
 
54 United Nations Economic and Social Council, Second Session of the Preparatory Committee of the 
United Nations Conference on Trade and Employment, R eport of the Committee on Chapters I, II and VIII 
(31 July 1947), E/PC/T/139 , (Exhibit USA -36), pp. 25 -26. 
55 Report of the Second Session of the Preparatory Committee , (Exhibit USA -37), p. 178.  WT/DS556/R/Suppl.1  
 
- 23 - 
 
  necessary".56 The United  States  further notes that the final text of Article  XXI of the GATT  1947 
reflected this revision to the text of the security exceptions.57  
2.28.   Switzerland does not speci fically 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" 
prepared by the Negotiating Group in November 1947. Regarding the secur ity 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 oblig ations under the United 
Nations Charter.58 
2.30.   The United  States  argues that the summary comments on the self -judging nature of the 
provision.59  
2.31.   Switzerland does not specifically comment on this document . 
2.2  Assessment  by the Panel  
2.32.   The Panel notes that the parties disagree 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 exhaustively defined and may include, but are not limited to, the 
preparatory work and the circumstances of the conclusion of the treaty.60 As noted above, the 
relevan t treaty provision in this analysis is Article  XXI the GATT  1994, an agreement that "is legally 
distinct from" the GATT  1947.61 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  199462, 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 different institutional setting compared to the WTO, particularly with 
respect to the resolution of disputes. The Panel will f actor 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 interpretation according to Article  31 leaves the meaning 
ambiguous or obscure or leads to a result which is manifestly absurd or unrea sonable. 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 iss ues in this dispute, nor does the Panel find that it leads to a result 
which is manifestly absurd or unreasonable. The Panel also notes the parties' agreement that any 
 
56 United  States ' first written submission, para.  65. 
57 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 Tariffs and Trade (30  August  1947), E/PC/T/189, (Exhibit USA -38), p. 47.  
58 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.  
59 United  States ' first written submission, para.  65. 
60 See Appellate  Body Report, EC – Chicken Cuts , para.  283. 
61 See para.  1.1 and fn  1 above.  
62 See Appellate  Body Reports, Japan – Alcoholic Beverages II , p. 24, fn  52 (regarding Article  III:2 of 
the GATT  1947 and 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). WT/DS556/R/Suppl.1  
 
- 24 - 
 
  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 .63 The Panel therefore reviews the negotiating history of the ITO Charter and the 
GATT  1947 in light of the interpretive conclusions resulting f rom 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 dis pute, the Panel will begin 
by reviewing the evolution of the security exceptions provision in terms of its envisaged 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 discussion 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 Panel will next address the relevance of an informal summary prepared by the Negotiating Group 
towards the end of 1947. Finally, the Panel will m ake some concluding observations on early debates 
in the negotiations of the ITO Charter concerning the distinction between "justiciable" and 
"non-justiciable" issues.  
2.36.   Regarding the scope of application of the security exceptions, draft provisions were or iginally 
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 appl icable to the entire Charter and to the entire 
GATT  1947. Notably, the proponent of this amendment indicated its understanding 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.64 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 f unction 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 provis o 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.65 The Panel does not see the presence or absence of such language 
as indicati ng the intentions of the drafters regarding the review of an invocation of a provision dealing 
with "essential security interests". The text of the proviso included in the March 1947 draft does not 
refer to review of the invocation of the security exceptio ns, 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 t he 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 not e of the appearance 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, t he introduction and retention of such terms does not in itself, 
 
63 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; Switzerland's response to Panel question 
No. 56).  
64 Report of the 24  July 1947 Meeting , (Exhibit USA -41), p. 26.  
65 See para.  2.7 above.  WT/DS556/R/Suppl.1  
 
- 25 - 
 
  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 parties 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 securi ty exceptions 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 limi t the exception so as to prevent the adoption of protection for maintaining 
industries under every conceivable circumstance".66 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 
circumstances in which they could invo ke the security exceptions.67 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".68 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 efficient 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" betwee n an exception that is either "too tight" or "broad".69 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 off ered 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 imposi tion of security 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 
 
66 See para.  2.17 above. This understanding is also confirmed when considering the observation m ade 
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 interests and to determine for itself … what its security interests are". 
(Report of the 24  July 1947 Meeting , (Exhibit USA -41), p. 20).  
67 Report of  the 24  July 1947 Meeting , (Exhibit USA -41), p. 21; Exhibit Corrigendum to Report of the 
24 July 1947 Meeting , (Exhibit USA-92). 
68 Report of the 24  July 1947 Meeting , (Exhibit USA -41), p. 21.  
69 Report of the 24  July 1947 Meeting , (Exhibit USA -41), p. 21. WT/DS556/R/Suppl.1  
 
- 26 - 
 
  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.70 
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 
distinguish betw een violation, non -violation, and situation complaints71, 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 not 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 woul d 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.72 
2.44.   The Panel understands this statement to clarify that actions taken in conformity with the 
provision on security exceptions could 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 d raft text of 
the ITO Charter. Therefore, while the exchanges 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 natu re 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 Committ ee of the United Nations Conference on 
Trade and Employment.73 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 materia ls, arms traffic, and wartime or other international emergencies, and to 
maintain peace according to their obligations under the United Nations Charter".74 The Panel notes 
the informal nature of the document as a relevant factor in assessing the value that  it should be 
 
70 Report of the Drafting Committee of the Preparatory Committee, (Exhibit USA -33), p. 30; see also 
Article  XIX:2 of the draft text of the GATT  1947 at the time (Ibid. pp. 76 -77). 
71 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. 
72 Report of the 24  July 1947 Meeting , (Exhibit USA -41), pp. 26-27. 
73 See para.  2.29 above.  
74 See para.  2.29 above.  WT/DS556/R/Suppl.1  
 
- 27 - 
 
  given in the context of an interpretive analysis.75 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 circums tances 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 provision76 or that the provisi on 
should be treated as "self -judging" in the sense argued 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 contin ued. 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 
would be represented). ITO members could s eek 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.77 The distinction between "justiciable" issues and other  
issues was removed in subsequent drafts after having been commented upon as "untenable" and 
"unworkable".78 The debate on "justiciable" issues took place in the context of a draft text that 
foresaw a different institutional setting from the one that exist s under the WTO covered agreements. 
In that context, the 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 provis ions 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 conside rs these early debates on 
"justiciable" issues to underscore 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 issu es 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 pla ce in early 1948, thus after the text of the GATT  1947 was finalized and started being 
provisionally applied.79 In submitting these materials, the United  States  argues that 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.80 
 
75 As stated in the foreword of the document, "[t]he purpose of this  information paper is to provide for 
the non -technical reader 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).  
76 Regarding the provisions in Chapter VIII on "Settlement of Differences – Interpretation", th e 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 observ es parenthetically that "the Preparatory Committee gave only 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 Committee , (Exhibit USA -37), p. 166).  
77 Report of the First Session of the Preparatory Committee, (Exhibit USA -31), Annexure 11 
(United  States  Draft Charter) , Article  76, p. 67.  
78 Report of the Drafting Committee of the Preparatory Committee, (Exhibit USA -33), "General 
Comments" to Article  86, p. 51.  
79 United  States ' first written submission, para.  72. 
80 United  States ' first written submission, para.  72 and fn  70. WT/DS556/R/Suppl.1  
 
- 28 - 
 
  3.2.  According to Switzerland, the United  States  fails to explain how and to what extent the 
negotiating history pertaining to the ITO Charter remains relevant in the context of the WTO.81 
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 t o a report of a Working Party composed of four delegations (Australia, 
India, Mexico, and the United  States ) dated 9  January  1948.82 The Working Party considered several 
suggested alternatives and agreed unanimously on new texts for Articles 89 (Consultation between 
Members) and 90(4) (Reference to the Organization).  
3.4.  The newly suggested text of Article  89 retained a distinction betwee n 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 other situation.83 
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 to 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 int ernational 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 should, under 
those circumstances, have the right to bring the ma tter 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 the complaining 
Member.84 
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 inconsistency.85 Specifically, the United  States  argues that this exce rpt 
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 recourse for 
ITO members affected by the imposition of security m easures.86 
 
81 Switzerland's second written submission, para.  209. 
82 United  States ' first written submission, paras.  73-74 (referring to United Nations Conference on Trade 
and Employment, Report of the Working Party of Sub -Committee G of Committee VI (Organization) on C hapter 
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.  
83 The suggested text of Article  89 read:  
If any Member should consider that any benefit accr uing to it directly or indirectly, implicitly or 
explicitly  under any of the  provisions of this Charter other than Article  1 is being nullified or 
impaired, [or that the attainment of any of the objectives set forth in Article  1 is being impeded], 
as a res ult 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 si tuation[,] 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)  
84 Report of the Working Party of Sub -Committee G of Committ ee VI (Organization) on Chapter VIII , 
(Exhibit USA -42), p. 2.  
85 United  States ' first written submission, para.  74. 
86 United  States ' response to Panel q uestion No.  59. WT/DS556/R/Suppl.1  
 
- 29 - 
 
  3.7.  Switzerland submits that the content of the Working Party report confirms that the negotiators 
aimed to allow for some type of redress with regard to measures consistent with the security 
exceptions, and therefore not in violation of the ITO Cha rter.87 
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]i ve representatives agreed with the Chairman that action of the type mentioned 
in Article  94 [i.e., the security exceptions provision] could not be challenged by recourse to the 
procedures of Chapter VIII".88 According to this view, "[h]owever, any Member w hich considered 
that any benefit accruing to it being nullified or impaired as specified in Article  89 might invoke the 
procedures of Chapter VIII in order that compensatory measures might be permitted".89 The 
representative of the United Kingdom stated th at his delegation intended to propose an amendment 
to Article  94 that would clarify the relationship between the national security exceptions and the 
potential recourse for affected ITO members .90 Two other representatives expressed doubts on the 
opinion g iven by the Chairperson.91 The delegations eventually agreed to leave the question of the 
relationship between Article  94 and the rules on settlement of differences in Chapter VIII for further 
consideration later.92 
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 exc eptions.93 
3.10.   Switzerland does not specifically comment on this document . 
3.1.3   16 January  1948 – Amendment to Article  94 proposed by the U K 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 taking any actio n 
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 wa r 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;  
 
87 Switzerland's second written submission, paras.  222-223. 
88 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 
Differ ences – Interpretation) of Committee VI (Organization) (13  January  1948), E/CONF.2/C.6/W.41 , (Exhibit 
USA-43), p. 1.  
89 United  States ' first written submission, para.  7; Third Meeting of the Sub -Committee on Chapter VIII 
(Settlement of Differences – Interpr etation) of Committee VI (Organization) , (Exhibit USA -43), p. 1.  
90 Third Meeting of the Sub -Committee on Chapter VIII (Settlement of Differences – Interpretation) of 
Committee VI (Organization) , (Exhibit USA -43), p. 1.  
91 Third Meeting of the Sub -Committee on Chapter VIII (Settlement of Differences – Interpretation) of 
Committee VI (Organization) , (Exhibit USA -43), p. 1.  
92 Third Meeting of the Sub -Committee on Chapter VIII (Settlement of Differences – Interpretation) of 
Committee VI (Organization) , (Exhibit USA-43), p. 1.  
93 United  States ' first written submission, para.  75. WT/DS556/R/Suppl.1  
 
- 30 - 
 
  (iii) is taken, in time of war or other emergency in international relat ions …  [.]94 
3.12.   This amendment was adopted and is reflected in the final text of the ITO Draft Charter.95 
3.13.   The United Kingdom also proposed the introduction of the following sub paragraph  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 Charter 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.96 
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  nullifi es or impairs 
any benefit accruing to another Member directly or indirectly the procedure set forth in 
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 s uch obligations or 
concessions under or pursuant 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 on or otherwise disposed of the matter.97 
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 security actions could not 
be reviewed for their consistency with the Charter, but only for the nullification or impairment 
caused.98  
3.18.   Switzerland does not specifically comment on this document . 
3.1.4   17 January  1948 – Meet ing 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-commi ttee provisionally agreed to the revised text of paragraphs 1(a) and (b).99  
 
94 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 Article  94 proposed by the UK 
Delegation (16  January  1948), E/CONF.2/C.6/W.48 , (Exhibit USA -44), p. 1.  
95 United  States ' first written submission, fn  77; United Nations Conference on Trade and Employment, 
Final Act and Related Documents (April 1948) , (Exhib it USA -45), pp. 92 -93. 
96 Amendment to Article  94 proposed by the UK Delegation , (Exhibit USA -44), pp. 1 -2. 
97 Amendment to Article  94 proposed by the UK Delegation , (Exhibit USA -44), p. 2.  
98 United  States ' first written submission, para.  77. 
99 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 M eeting, E/CONF.2/C.6/W.60 (17  January  1948) , (Exhibit USA -47), p. 1).  WT/DS556/R/Suppl.1  
 
- 31 - 
 
  3.20.   With regard to the United Kingdom's proposal of a new sub paragraph  1(d), the representative 
of Czechoslovakia argued that, if those matters were to be discussed further, the quest ion of 
including that sort of language should be referred to the United Nations Security Council.100 The 
delegate of India suggested that the language of the proposed sub paragraph  1(d) be modified in 
order to qualify the word "action" as "relating to the su bject matter covered by the present Charter", 
thus distinguishing "economic" actions from "political or military" ones.101 The representative of India 
doubted that the taking of economic action could be regarded as necessarily infringing Article  2 of 
the United Nations Charter.102 
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 wou ld have been a repetition of paragraph (b) of Article  89 
concerning non -violation claims.103 The delegate of the United  States  also expressed some 
reservations regarding the expression "until the United Nations has … otherwise disposed of the 
matter", as it  might have been difficult to determine when the United Nations had "otherwise 
disposed of" a matter.104 
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 an d 90 written into the record of the discussion 
rather than incorporated in the text of the security exceptions in Article  94.105 He further observed 
that the proviso suggested in the proposed paragraph 2 was not intended to exclude the ITO from 
participatio n in the resolution of a matter after the United Nations had acted.106 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 ope ration.107 
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".108 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.109 
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.110 The United  States  further notes that reference to nullification or 
 
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. 2.  
101 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.  
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. 2.  
103 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 impa irs any benefit accruing to 
another Member directly or indirectly the procedure set forth in 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 
obliga tions or concessions under or pursuant to this Charter as the Conference deems appropriate".  
104 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. 
105 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.  
106 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.  
107 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.  
108 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.  
109 United Nations Conference on Trade and Employment, Sub -Committee I (Article  94) of Committe e VI 
(Organization), Notes of the Fourth Meeting , (Exhibit USA -47), p. 3.  
110 United  States ' first written submission, para.  76. WT/DS556/R/Suppl.1  
 
- 32 - 
 
  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.111 
3.25.   Switzerland does not specifically comment on this document . 
3.1.5   28 February  1948 – Meeting of Sub -Committee I ( Article  94), Sixth Committ ee: 
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 Kin gdom 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 w ould neither permit, nor condemn, nor pass any 
judgment whatever on, unilateral economic sanctions.112  
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 provis ion in the ITO Draft Charter, 
particularly with regard to the amended chapeau  of the provision.113 
3.28.   Switzerland 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 and 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.114 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 discus sions 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 section 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 limited 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 t he 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 to 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 Repo rt of the Working Party of Sub -Committee G of Committee VI on Chapter 
VIII (Settlement of Differences – Interpretation) dated 9  January  1948115, 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 that such 
 
111 United  States ' first written submission, para.  77. 
112 United Nations Conference on Trade and Employment, Sub -Committee I (Articl e 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.  
113 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 
Act and Related 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)). 
114 See para.  2.33 above.  
115 See section 3.1.1 above.  WT/DS556/R/Suppl.1  
 
- 33 - 
 
  actions would be consistent with the ITO Draft Charter but could still nullify or impair the benefits 
accruing to other ITO members. The Working P arty expressed the understanding that, in those 
circumstances, affected ITO members could not claim the ITO -inconsistency of the contested actions 
but could nevertheless resort to non -violation complaints. In the Panel's view, this statement does 
not neces sarily 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 s ecurity exceptions would be 
consistent with the Charter but could still be subject to non -violation complaints. 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 the 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 doub tful 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 C hapter VIII (Settlement of Differences – 
Interpretation) of the Sixth Committee (Organization), dated 13  January  1948116, 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 "Settlement of Differences". Those delegations also agreed that affected 
members could still resort to the procedures on compensatory measures. However, no c onsensus 
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. Thus, although some delegations expressed the view 
that action taken pursuant to the security exceptions could not be subject to dispute settlement 
procedur es, the minutes of the meeting clearly show that there was no agreement on this point, and 
that two representatives expressed doubts on this specific aspect.  
3.33.   In its proposed amendments to the security exceptions submitted on 16  January  1948, the 
United Ki ngdom sought to introduce language allowing application to the ITO for authorization to 
suspend obligations or concessions for an equivalent amount of any benefit under the ITO Draft 
Charter that was nullified or impaired by actions under the security exce ptions.117 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 recommen dations or had otherwise disposed of the matter.118 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 amount. 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 this 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  nullification 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 quest ion of whether 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 meeting 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  February  1948, that "if this article 
 
116 See section 3.1.2 above.  
117 See para.  3.15 above.  
118 See para.  3.15 above.  WT/DS556/R/Suppl.1  
 
- 34 - 
 
  were included in the Charter, the Charter would neither permit, nor condemn, nor pass any judgment 
whatever on, unilateral economic sanctions".119 It is questionable whether this statement was made 
in rel ation to the entire revised 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  1947.120 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 security exceptions or the reviewability of the invocation of the provision.121 
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 Panel 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.  
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 pu rportedly taken under the security 
exceptions could be subject to non -violation complaints. 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 redres s for invocations of the security exceptions to the exclusion of claims of 
inconsistency. 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 se curity 
exceptions. Furthermore, nowhere do the materials reviewed refer explicitly to 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 exceptions 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  submitted 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 p anel in Russia – Traffic in Transit  referred 
to a study discussing these documents.122 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 t o by the panel in Russia – Traffic in Transit are not "negotiating history" within the meaning 
of the Vienna  Convention .123 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 whether certain materials are part of the "negotiating 
histor y", or other supplementary means of interpretation under Article  32 of the 
 
119 See para.  3.26 above. This statement was added to t he minutes from a previous meeting, which 
were not submitted by either party in this dispute. 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) ). 
120 See United  States ' first written submission, para.  76, fn  77. 
121 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 include a provision in the text of the security exceptions on temporary 
arrangements between India and Pakistan pending the establishment of permanent trade relat ions. (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) ). 
122 United  States ' first written submission, para.  80. 
123 United  States ' first written submission, para.  81. WT/DS556/R/Suppl.1  
 
- 35 - 
 
  Vienna  Convention .124 The United  States  thus holds that it would be legal error to consider internal 
documents of the US delegation at the ITO Charter and GATT  1947 negotiations as p reparatory work 
constituting supplementary means of interpretation.125 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 essenti al security matters from scrutiny in international fora 
focused on trade.126 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" .127 
4.2.  Switzerland argues that internal documents of the US delegation at the ITO Charter and 
GATT  1947 negotiations fall within the scope of Article  32 of the Vienna  Convention .128 Switzerland 
considers that these documents confirm the position of the United  States  as the original drafter of 
the security exceptions, and the fact that they were not accessible to other parties is not decisive.129 
According to Switzerland, the internal documents of the US delegation can qualify as circumstances 
of the treaty concl usion, as they are part of the historical background for the negotiations of 
Article  XXI of the GATT  1947.130 Switzerland further argues that the Panel may still take the above -
mentioned documents into account under Article  32 of the Vienna  Convention  even if it were to find 
that they do not form part of the circumstances of the conclusion of the GATT  1947.131 In this regard, 
Switzerland notes that the list of supplementary means of interpretation in Article  32 of the 
Vienna  Convention  is not exhaustive.132 
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 security exceptions 
among representatives of different branches and agencies wit hin the government of the 
United  States  prior to the submission of the United  States ' proposal for a draft text of the ITO 
Charter.133 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 Secretar y of State); and Mr 
Wilcox (Head of the Office of International Trade Policy at the Department of State).134 
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 
materi als or technology "at any time without regard to whether or not there was an imminent threat 
of war".135 Mr Deupree was concerned by the phrase "imminent threat of war" and suggested a 
change in wording in order to avoid serious diplomatic repercussions.136  
4.5.  Mr Clayton addressed the concerns of the military services, noting the importance of the 
objectives sought by the "trade program ", including the preservation of peace and the protection of 
national security.137 The representatives of the services acknowled ged these points but continued to 
 
124 United  States ' first written submission, paras.  84-86; response to Panel question No.  63. 
125 United  States ' first written submission, para.  87. 
126 United  States ' first written submission, para.  89. 
127 United  States ' first written submi ssion, para.  82. 
128 Switzerland's second written submission, fn  251; response to Panel question No.  63. 
129 Switzerland's response to Panel question No.  63; second written submission, para.  212. 
130 Switzerland's response to Panel question No.  63. 
131 Switzerland's response to Panel question No.  63. 
132 Switzerland's response to Panel question No.  63. 
133 US Department of State, Memorandum of Conversation on "Security Exceptions to proposed ITO 
Charter" (17  June 1946) , (Exhibit USA -52). 
134 US Department of State, Memorandum of Conversation on "Security Exceptions to proposed ITO 
Charter" , (Exhibit USA -52), p. 1.  
135 US Department of State, Memorandum of Conversation on "Security Exceptions to proposed ITO 
Charter" , (Exhibit USA -52), p. 1.  
136 US Department of St ate, Memorandum of Conversation on "Security Exceptions to proposed ITO 
Charter" , (Exhibit USA -52), p. 2.  
137 US Department of State, Memorandum of Conversation on "Security Exceptions to proposed ITO 
Charter" , (Exhibit USA -52), p. 2.  WT/DS556/R/Suppl.1  
 
- 36 - 
 
  argue for a "free hand in controlling international transactions for military purposes".138 Mr Wilcox 
assured the participants that the Department of State intended to make all necessary provisions to 
safeguard national sec urity, 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".139  
4.6.  At the end of the meeting, the participants agreed that Mr Neff and M r Wilcox would work on 
the possibility to develop some wording that would meet the concerns of the military services without 
invalidating the Charter or necessitating the abandonment of the "trade program ".140 
4.7.  The United  States  notes from the summary of thi s 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".141 
4.8.  Switzerland does not specifically comment on thi s 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 economic 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.142 The document 
reports the view that the argument whereby 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.143 The document 
continues with the affir mation that international economic cooperation, including the reduction of 
trade barriers, was a "major goal" of the United  States ' foreign policy.144 
4.10.   According to the United  States , this document shows how, in early internal discussions, 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 United Nations.145 
4.11.   Switzerlan d 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 Security Provisions in the Draft Charter".146 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 essential to its national de fence, and the latter being concerned with the risk that the wide 
use of a broad exception would nullify much of the ITO Charter.147 
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 ex ceptions to the Charter 
 
138 US Department of Sta te, Memorandum of Conversation on "Security Exceptions to proposed ITO 
Charter" , (Exhibit USA -52), p. 2.  
139 US Department of State, Memorandum of Conversation on "Security Exceptions to proposed ITO 
Charter" , (Exhibit USA -52), p. 2.  
140 US Department of State , Memorandum of Conversation on "Security Exceptions to proposed ITO 
Charter" , (Exhibit USA -52), p. 2.  
141 United  States ' first written submission, para.  90. 
142 US Delegation, Economic Disarmament (Draft), (Exhibit USA -53), p. 1.  
143 US Delegation, Economic Disarmament (Draft), (Exhibit USA -53), p. 1.  
144 US Delegation, Economic Disarmament (Draft), (Exhibit USA -53), p. 1.  
145 United  States ' first written submission, para.  91. 
146 US Delegation, Letter dated 3  July 1946 from Mr Coppock to Mr  Wilcox on "National Security 
Provisions in the Draft Charter" , (Exhibit USA -54). 
147 US Delegation, Letter from Mr Coppock to Mr Wilcox , (Exhibit USA -54), p. 1.  WT/DS556/R/Suppl.1  
 
- 37 - 
 
  provisions on the grounds of national defense".148 In support of the proposed solution, the 
memorandum outlines two additional considerations: (i)  any rule written in the Charter would call 
for interpretation "unless the unilateral a ssertions of a particular country that their restrictive 
measures are essential to their national defense 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 an d 
yet narrow enough to restrain abuses".149  
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 wou ld be the proper body to do so.150 The memorandum suggests the 
option of the Executive Board acting in the first instance, with the possibility that any decision be 
appealed to the Security Council of the United Nations or a committee thereof.151 
4.15.   The United  States  notes that this "procedura l solution" was included in the draft text of the 
ITO Charter that the United  States  presented to other delegations in September 1946.152 
4.16.   Switzerland 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 
Conference on Trade and Employment.153 The discussion notably re volved around the security 
exceptions154 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, non e of the 
obligations of this Charter shall apply to any measure or agreement:  
a. Relating to fissionable materials or their source materials ; 
 
148 US Delegation, Letter from Mr Coppock to Mr Wilcox , (Exhibit USA -54), p. 1.  
149 US Delegation, L etter from Mr Coppock to Mr Wilcox , (Exhibit USA -54), pp. 1 -2. 
150 US Delegation, Letter from Mr Coppock to Mr Wilcox , (Exhibit USA -54), p. 2.  
151 US Delegation, Letter from Mr Coppock to Mr Wilcox , (Exhibit USA -54), p. 2.  
152 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) ). 
153 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). 
154 The security exceptions were discussed also earlier in the meeting based on a proposal by Mr Neff, 
which was rejected with a unanimous vote of the US dele gation, 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 carried 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 would have been in line with a 
legislative propos al 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 w idest 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 "unnecessary", as the United  States  already enjoyed amp le 
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 equal fervor" 
against the inclusion of the propose d 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 control 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.  WT/DS556/R/Suppl.1  
 
- 38 - 
 
  b. Relating to the traffic in arms, ammunition and implements of war and to such traffic 
in other goods and materi als 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 pursuan ce of obligations under the United Nations Charter for the 
maintenance 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 pursua nt to, the Charter the furnishing of 
which will be contrary to its 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.155 
4.18.   According to the minutes of the meeting, the draft provoked "considerable discussion".156 
Concerning the expression "[w]ithout limiting the generality of any other exception or qualification" 
in paragraph 1, several m embers of the delegation raised doubts about whether it was necessary 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 th e security 
exceptions proposed by Mr Kellogg (Department of State), 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 …".157 According to Mr Catudal, Mr Kellogg's draft 
covered "[e]very possible contingency involving the national security of the United  States ".158 Mr 
Rubin, Mr Brown (Department of State), Mr Leddy, and Mr Evans agreed with Mr Catudal.159  
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.160 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".161 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 action left to the United  States  by the Charter".162 
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.163 
4.20.   Switzerland does not speci fically comment on this document . 
 
155 US Delegation, Minutes of the Delegation Meeting (2  July 1947) , (Exhibit USA -48), p. 10.  (emphasis 
original)  
156 US Delegation, Minutes of the Delegation Meeting (2  July 1947) , (Exhibit USA -48), p. 6.  
157 US Delegation, Minutes of the Delegati on Meeting (2  July 1947) , (Exhibit USA -48), pp. 6 and 9.  
158 US Delegation, Minutes of the Delegation Meeting (2  July 1947) , (Exhibit USA -48), p. 6.  
159 US Delegation, Minutes of the Delegation Meeting (2  July 1947) , (Exhibit USA -48), p. 6.  
160 United  States ' first written submission, para.  97. 
161 United  States ' first written submission, para.  97; US Delegation, Minutes of the Delegation Meeting 
(2 July 1947) , (Exhibit USA -48), p. 10.  
162 United  States ' first written submission, para.  98 (citing Panel  Report , Russia – Traffic in Transit , 
paras.  7.90-7.91).  
163 United  States ' first written submission, para.  98. WT/DS556/R/Suppl.1  
 
- 39 - 
 
  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"164 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) [Relating 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 it s essential security interests;  
d) [Undertaken] Undertakings in pursuance of obligations under the United Nations 
Charter for the maintenance of international peace and security.  
___ 
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.165 
4.22.   Among the issues discussed at the meeting166, there was a request by Mr Wilcox to change 
the phrase "and to relate to" at the end of the introductory clause of the provisi on with the words 
"relating to".167 Mr Rubin replied that he had discussed this issue with Mr Neff, who "objected 
vigorously" to the change.168 According to Mr Neff, the use of the terms "and to relate to" meant 
that, "[b]y retaining it as an independent cla use the meaning is clear; the US may take unilateral 
action".169 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".170 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 national security, take any measure 
whatsoever it might wish in complete disregard of all prov isions of the Charter".171 Mr Leddy added 
that it would have been "better to abandon all work on Charter" instead of including the proposed 
wording.172 
 
164 US Delegation, Second Meeting of the United Nations Preparatory Committee for the International 
Conference on Trade and Employment, Minutes of the Delega tion Meeting (4  July 1947) , (Exhibit USA -56), p. 
2. 
165 US Delegation, Minutes of the Delegation Meeting (4  July 1947) , (Exhibit USA -56), p. 4.  (emphasis 
original)  
166 Earlier in the meeting there was a discussion on the necessity to include the words "or agre ement" in 
the introductory clause of the provision. Further to the discussion, the participants reached a compromise, 
replacing the words "measure or agreement" with "action". (US Delegation, Minutes of the Delegation Meeting 
(4 July 1947) , (Exhibit USA -56), p. 2).  
167 US Delegation, Minutes of the Delegation Meeting (4  July 1947) , (Exhibit USA -56), p. 2.  
168 US Delegation, Minutes of the Delegation Meeting (4  July 1947) , (Exhibit USA -56), p. 2.  
169 US Delegation, Minutes of the Delegation Meeting (4  July 1947) , (Exhibit USA -56), p. 2.  
170 US Delegation, Minutes of the Delegation Meeting (4  July 1947) , (Exhibit USA -56), p. 2.  
171 US Delegation, Minutes of the Delegation Meeting (4  July 1947) , (Exhibit USA -56), pp. 2 -3. 
172 US Delegation, Minutes of the Delegation  Meeting (4  July 1947) , (Exhibit USA -56), p. 3.  WT/DS556/R/Suppl.1  
 
- 40 - 
 
  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".173 Mr Evans replied that the United  States  would be a sufficiently important 
member of the ITO and that, in the event of a "bona fide" nati onal security problem, the ITO would 
not be able to do otherwise than find in favour of the United  States .174 This opinion was shared by 
Mr Brown.175 
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.176 Mr Wilcox argued that he did not think that the ITO 
would ever become a forum to discuss national security interests.177 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. Only three members of the delegation voted to retain this 
wording (Captain Thorp (Nav y), 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 o f 
Agriculture)).178 
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 national security reasons be referred to the 
"World Court" for decision, rather than to th e ITO.179 Mr Neff further requested that his dissent to 
the decision taken by vote be reflected in the minutes of the meeting.180 
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 th at such proposal was ultimately rejected.181 
4.27.   Switzerland does not specifically comment on this document . 
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.182 
4.29.   Mr Rubin provided his views with regard to the question of "the power to interpret the security 
exceptions".183 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 …".184 
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 which it proposed to take related 
to the  matters illustrated in the lettered [sub]paragraphs".185 Mr Rubin further noted that those 
changes would have made "unchallengeable … a justification, however far -fetched, of any action on 
this basis".186 In this respect, Mr Rubin wrote that, "[t]o the exte nt that the wording approved by 
 
173 US Delegation, Minutes of the Delegation Meeting (4  July 1947) , (Exhibit USA -56), p. 3.  
174 US Delegation, Minutes of the Delegation Meeting (4  July 1947) , (Exhibit USA -56), p. 3.  
175 US Delegation, Minutes of  the Delegation Meeting (4  July 1947) , (Exhibit USA -56), p. 3.  
176 US Delegation, Minutes of the Delegation Meeting (4  July 1947) , (Exhibit USA -56), p. 3.  
177 US Delegation, Minutes of the Delegation Meeting (4  July 1947) , (Exhibit USA -56), p. 3.  
178 US Delegation, Minutes of the Delegation Meeting (4  July 1947) , (Exhibit USA -56), p. 3.  
179 US Delegation, Minutes of the Delegation Meeting (4  July 1947) , (Exhibit USA -56), p. 3.  
180 US Delegation, Minutes of the Delegation Meeting (4  July 1947) , (Exhibit USA -56), p. 3.  
181 United  States ' first written submission, paras.  97-98. 
182 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 submitted to the Panel and are not part of the record of this dispute.  
183 US Delegation, Memorandum of Mr Rubin, ( Exhibit USA -49), p. 1.  
184 US Delegation, Memorandum of Mr Rubin, (Exhibit USA -49), p. 1.  
185 US Delegation, Memorandum of M r Rubin, (Exhibit USA -49), p. 1.  
186 US Delegation, Memorandum of Mr Rubin, (Exhibit USA -49), p. 1.  WT/DS556/R/Suppl.1  
 
- 41 - 
 
  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 security exceptions."187 
4.31.   Mr Rubin further argu ed that "the security exceptions are as drafted sufficiently broad to take 
care of any reasonable case".188 According to Mr Rubin, the security exceptions were redrafted "to 
provide for unilateral determination by each [ITO m]ember, unchallenged by any othe r [ITO 
m]ember, as to what action it deems necessary in a field 'relating to' the listed subjects" in the 
lettered subparagraphs.189 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 conside red the relevance of the measure undertaken to the problem to be solved, if the measure 
falls in any of these 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 unila teral determination".190 
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 security, would be immune even from question".191 
4.33.   Mr Rubin expressed the view that, as the exceptions were drafted at that time, "no action in 
or rela ting to certain fields where national security is concerned can be questioned, whether before 
the Organization or the Court".192 Mr Rubin expressed the understanding that the changes introduced 
in the wording of the provision were in accordance with the com mitment of the Department of State 
expressed in the following terms: "These new exceptions would be worded so as to give each Member 
freedom to apply them as it determines in the interest of its own security".193 
4.34.   Mr Rubin then addressed the comment raised b y 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 m atter affecting its national security".194 In this regard, Mr Rubin "supposed that this 
refers to the veto power" and 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 al l nations which come into any 
international organizations, ITO or any other".195 
4.35.   In conclusion, Mr Rubin stated that the security exceptions as drafted at that time gave "a 
great deal of leeway for unilateral determination on matters affecting national secu rity", and that 
the wording proposed by Mr Neff would have made the ITO Charter an "illusory document".196 Mr 
Rubin further explained that a "broader exception" would have been invoked by other countries 
rather than by the United  States , and that the formul ation of the security exceptions at that time 
granted the United  States  freedom to apply the provision as it determined in the interest s of its own 
security, "provided that it [was] the exception and not something else".197 
4.36.   According to the United  States , this memorandum confirms that earlier formulations of the 
security exceptions already provided for broad power of unilateral interpretation, and that the 
suggestions from the military representatives would have expanded that power only to the exte nt 
that it was not already preserved in the text.198 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 ma tter how remote may be considered the 
 
187 US Delegation, Memorandum of Mr Rubin, (Exhibit USA -49), p. 1.  
188 US Delegation, Memorandum of Mr Rubin, (Exhibit USA -49), p. 2.  
189 US Delegation, Memorandum of Mr Rubin, (Exhibit USA -49), p. 2.  
190 US Delegation, Memorandum of Mr Rubin, (Exhibit USA -49), p. 2.  
191 US Delegation, Memorandum of Mr Rubin, (Exhibit USA -49), p. 2.  
192 US Delegation, Memorandum of Mr Rubin, (Exhibit USA -49), p. 3.  
193 US Delegation, Memoran dum of Mr Rubin, (Exhibit USA -49), p. 3.  
194 US Delegation, Memorandum of Mr Rubin, (Exhibit USA -49), p. 3.  
195 US Delegation, Memorandum of Mr Rubin, (Exhibit USA -49), p. 3.  
196 US Delegation, Memorandum of Mr Rubin, (Exhibit USA -49), p. 3.  
197 US Delegation, Mem orandum of Mr Rubin, (Exhibit USA -49), p. 3.  
198 United  States ' first written submission, para.  100. WT/DS556/R/Suppl.1  
 
- 42 - 
 
  relevance of the measures undertaken to the problem to be solved".199 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 m ember to determine, "for itself", what actions were necessary to protect its 
essential security interests in the fields listed in the provision.200 The United  States  considers that 
the US delegation did not take the position "that the scope of the unilatera l action accorded to a 
Member invoking the security exceptions would be limited to the necessity of the measure and would 
not extend to the determination of the other elements of the provision", as concluded by the panel 
in Russia – Traffic in Transit .201 Instead, the United  States  maintains that the memorandum 
specifically states that, under the text of the security exceptions, the United  States  could justify 
security measures "as it may contemplate as 'relating to'" the subjects listed in the provision.202 
4.37.   Switzerland notes Mr Rubin's affirmation that the US delegation rejected the changes 
proposed by Mr Neff on the grounds that they would have transformed the ITO Charter in an "illusory 
document".203 According to Switzerland, the memorandum explained that th e proposed amendment 
"would make it perfectly clear that any Member had the unilateral power to decide that any action 
which it proposed to take did relate to the matters contained in the lettered paragraphs", thereby 
making "unchallengeable by the Organiz ation or any other Member a justification, however far -
fetched, of any action on this basis".204 In Switzerland's view, it follows that the security exceptions 
as proposed by the United  States  in ITO negotiations after a majority deliberation of the delegat ion 
were not meant to grant "unlimited discretion" to a member of the ITO invoking that justification.205 
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 documen ts of the US delegation at the negotiations for the ITO 
Charter and 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 exampl es, without limiting the scope of the supplementary means of treaty interpretation to which 
there may be recourse.206  
4.39.   In considering the possible relevance of these documents under Article  32, the Panel notes 
that these documents were not in the public dom ain, nor were they accessible to other delegations 
at the time the 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 docume nts provide a record of discussions on various 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 t he 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 int ernal views of one single delegation, and the 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 submission of the United  States ' proposal for a draft text of the ITO 
 
199 United  States ' first written submission, para.  101. 
200 United  States ' first written submission, para.  101. 
201 United  States ' first written submission, para.  102 (citing Panel  Report , Russia – Traffic in Transit , 
para. 7.91).  
202 United  States ' first written submission, para.  102. 
203 Switzerland's second written submission, para.  212. 
204 Switzerland's second written submission, para.  212. 
205 Switze rland's second written submission, para.  212. 
206 See para.  2.33 above.  WT/DS556/R/Suppl.1  
 
- 43 - 
 
  Charter207, 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 national security interests be fully preserved, without 
giving "carte blanche" to ot her ITO members to avoid their trade commitments "under the cloak of 
a sweeping security exception".208 The divergence of views extended to the perceived rationale for 
the ITO Charter, 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.209 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 with the authority to review the 
invocation of the security except ions, either in the first instance or on appeal.210 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 cons idered around 
the time early drafts of the security exceptions provisions began to be discussed.  
4.43.   Turning to the minutes of the meeting that took place on 2  July 1947, the Panel notes that 
the debate concerned a proposal for an alternative wording of the se curity 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 
rules on dispute settlement .211 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 curre nt formulation of Article  XXI of the GATT  1994, the chapeau  of the 
provision would end with the words "relating to". Under another version, 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.212 The majority of the delegation voted in 
favour of the first version.213 Among the considerations that led to rejecting the second version, the 
Panel notes that several participants to the meetin g 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 expl icitly left it to the ITO member invoking the security exceptions to determine whether a 
certain measure was within the scope of the subparagraphs.  
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 exceptions. 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 the 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 -
 
207 US Department of State, Memorandum of Conversation on "Security Exceptions to proposed ITO 
Charter" , (Exhibit USA -52); and US Delegation, Economic Disarmament (Draft), (Exhibit USA -53). 
208 See para.  4.5 above.  
209 See para.  4.9 above.  
210 See para.  4.14 above.  
211 See para.  4.17 above.  
212 See para.  4.21 above.  
213 See para.  4.24 above.  WT/DS556/R/Suppl.1  
 
- 44 - 
 
  fetched, of any action" purportedly taken under the security exceptions. The memorandum contrasts 
"this co mpletely 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 "action in or relating to certain fields  where national security is concerned" that could not be 
"questioned" before the compe tent organs envisaged in the draft text of the ITO Charter at that 
time.214 While recognizing the need for "leeway" for ITO members in the pursuit of their security 
interests, the memorandum raised the concern that the proposals submitted by Mr Neff would h ave 
transformed the ITO Charter into an "illusory document", opening the door for abuses by other ITO 
members to the detriment of the interests of the United  States .215 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 protect their 
security interests while establishing limits to the potential abuse of the provision.  
4.46.   The materials examined i n this section indicate that, during the negotiations of the GATT  1947 
and the ITO Charter, different sensitivities emerged within the US delegation with regard to the 
drafting of the security exceptions. Bearing in mind the limits of this analysis as alre ady 
foreshadowed at the beginning of the Panel's assessment, the Panel notes that the US delegation 
considered various alternative proposals. According to some of these proposals, the invocation of 
the security exceptions would have been explicitly shielde d from the provisions on dispute 
settlement. Under other alternative proposed wordings, whether the conditions listed in the 
subparagraphs 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 exceptions could be abused, 
thereby undermining the entire architecture of the ITO.  
4.47.   The Panel does not consider that these mate rials indicate that the provision as it was drafted 
at the time already provided ITO members with the unilateral power to interpret it. Specifically, the 
Panel is not persuaded that the materials reveal an understanding that an ITO member could 
unilaterall y determine whether certain measures met the conditions listed under the subparagraphs 
of the security exceptions provision, as contended by the United  States . While not conclusive in and 
of itself, the Panel considers noteworthy in this respect the fact t hat 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 conte nded 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".216 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 ".217  
5.2.  The United  States  also argues that while a fe w contracting parties abstained and one party 
dissented, the 1949 Decision nevertheless constitutes a subsequent agreement within the meaning 
 
214 See para.  4.33 above (emphasis added). The memorandum found further support in the absence of 
indications that the US Senate Finance Committee desired "such a broad and unilateral security exception that 
any action, no matter how little related to security, would be immune even from question".  
215 See section 4.1.6 above.  
216 United  States ' first written submission, para.  47. 
217 United  States ' first written submission, para.  47.  WT/DS556/R/Suppl.1  
 
- 45 - 
 
  of Article  31(3)(a) of the Vienna  Convention .218 The United  States  maintains that a subsequent 
agreement need not b e 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".219 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.220 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".221 The United  States  maintains that the rules of procedure existing at that time provided 
that "decisions shall be taken by a majority of the representatives present and voting".222 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.223 
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 
Restrictions  decision is also a subsequent agreement for the purposes of the interpretation of 
Article  XXI of the GATT 1994".224 
5.4.  The United  States  further characterizes the 1949 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 o f the 
WTO Agreement .225 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 par ties.226 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.227 
5.5.  Switzerla nd objects to the characterization of the 1949 Decision as a "subsequent agreement" 
within the meaning of Article  31(3)(a) of the Vienna  Convention . Switzerland argues that the 1949 
Decision was taken pursuant to Article  XXIII:2 of the GATT  1947, the prede cessor to the current 
rules on dispute settlement.228 In that regard, Switzerland argues that interpretations in dispute 
settlement proceedings are only binding to the parties in a given dispute and not to the membership 
at large, and to argue otherwise wou ld run counter to fundamental principles of the WTO.229 
Furthermore, Switzerland maintains that a decision taken under the GATT  1947 cannot constitute a 
"subsequent agreement" to the GATT  1994.230 In any event, Switzerland notes that the 1949 
Decision was no t adopted by all the parties, and therefore it cannot be considered as proving the 
existence of an agreement among all the parties to the GATT  1947.231 Switzerland notes that, in the 
 
218 United  States ' first written submission, fn  44. 
219 United  States ' first written submission, fn  44; response to Panel question No.  65. 
220 United  States ' first written submission, fn  44. 
221 United  States ' response to Panel question No.  65. 
222 Unites States' opening statement at the first meeting of the Panel , para.  29 and fn  12 (citing GATT 
CONTRACTING PARTI ES, Second Session, Rules of Procedure for Sessions of the CONTRACTING PARTIES (As 
adopted on 16  August  1948), GATT/CP.2/3 Rev.1  (Exhibit USA -90), and GATT CONTRACTING PARTIES, Rules 
of Procedure for Sessions of the CONTRACTING PARTIES (6  September  1949), GATT/CP/30  (Exhibit USA -91), 
Rules 27 and 28 ). See also United  States ' response to Panel question No.  64. 
223 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 practice 
was not yet in place at the time of the 1949 Decision. See United  States ' response to Panel question No.  66. 
224 United  States ' response to Panel question No.  66. 
225 United  States ' response to Panel question No.  25. 
226 United  States ' response to Panel question No.  25. 
227 United  States ' response to Panel question No.  25. 
228 Switzerland's opening stateme nt at the first meeting of the Panel , para.  65; response to Panel 
question No.  68. 
229 Switzerland's opening statement at the first meeting of the Panel , para.  65. 
230 Switzerland's opening statement at the first meeting of the Panel , para.  66; second written 
submission, para s. 254-255. 
231 Switzerland's opening statement at the first meeting of the Panel , para.  68; response to Panel 
question No.  64. WT/DS556/R/Suppl.1  
 
- 46 - 
 
  WTO framework, to date the instruments that have been recognized to demons trate "a common 
understanding", thus amounting to an "agreement" under Article  31(3)(a) of the Vienna  Convention , 
were all adopted by consensus.232 
5.6.  Switzerland argues that the 1949 Decision does not qualify as one of the "other decisions of 
the CONTRACTING PARTIES" mentioned in Paragraph 1(b)(iv) of the GATT  1994.233 According to 
Switzerland, in order for an instrument to be considered as a "decision" under that provision, it must 
be "formal legal text which represented a legally binding determination in resp ect of the rights and/or 
obligations generally applicable to all contracting parties to GATT  1947".234 Switzerland argues that 
this is not the case for the 1949 Decision, which pertains to the resolution of a dispute between the 
United  States  and Czechoslov akia.235 
5.7.  According to Switzerland, the 1949 Decision could constitute at most one of the "decisions, 
procedures and customary practices followed by the CONTRACTING PARTIES to GATT  1947" under 
Article  XVI of the WTO  Agreement  by which the WTO shall be "guide d" unless otherwise specified in 
the WTO  Agreement  or in the Multilateral Trade Agreements, but it does not contain guidance for 
the Panel on the standard of review for Article  XXI(b) of the GATT  1994.236 Switzerland also argues 
that the 1949 Decision would  be irrelevant even as a supplementary means of interpretation, as it 
reflects the views of a limited number of parties in the context of a particular dispute.237 
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 it s obligations under the 
Agreement through its administration of the issue of export licenses".238 
5.9.  The parties do not make specific comments with regard to this document.  
5.1.2   Statements by Czechoslovakia and the United  States  
5.10.   In a statement made in support of th e request pursuant to Article  XXIII of the GATT  1947, 
the representative of 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 Recovery Programme or 
to other European countries.239 The representative of Czechoslovakia claimed that the measures at 
issue were inconsistent with Articles I and XIII of the GATT  1947.240 Czechoslovakia also claimed 
that the measures could not be justified under Articles XIV, XX, or XXI of the GATT  1947.241 
5.11.   The representative of the United  States  replied that Czechoslovakia's description of the 
measures was inaccurate, because a number of products 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  1947.242 
5.12.   The parties do not make specific comments with regard to these documents.  
 
232 Switzerland's response to Panel question No.  65. 
233 Switzerland's second written submission, para.  256. 
234 Switzer land's second written submission, para.  256 (emphasis omitted) (citing Panel  Report , US – 
FSC, para.  7.63).  
235 Switzerland's second written submission, paras.  256-258. 
236 Switzerland's second written submission, para s. 260-261. 
237 Switzerland's opening statement at the first meeting of the Panel , para.  69. 
238 GATT CONTRACTING PARTIES, Third Session, Agenda (Revised 8  April 1949), GATT/CP.3/2/Rev.2 , 
(Exhibit USA -24), item 14.  
239 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. 
240 Statement by the Head of the Czechoslovak Delegation , (Exhibit USA -25), p. 2.  
241 Statement by the Head  of the Czechoslovak Delegation , (Exhibit USA -25), pp. 2 -3. 
242 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.  WT/DS556/R/Suppl.1  
 
- 47 - 
 
  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.243  
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.244 
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 since the United  States  
representative had justified his case under Article  XXI whose provisions overrode those of 
Article  I".245  
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  Governmen t had used and interpreted the 
expression 'war material' so extensively that no one knew what it really covered".246 
5.18.   The representative of Pakistan stated that " Article  XXI, embodying exceptions to all other 
provisions of the Agreement, should stand by itse lf notwithstanding the provisions of other Articles 
including Article  I, and therefore the case called for examination only under the provisions of that 
Article".247 He further argued that he was convinced that the measures at issue were taken "in the 
interest of security and peace".248 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 
dealing with a matter of such great importance".249 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".250 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".251 
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".252 The representative of the United 
Kingdom further argued that "the CONTRACTIN G 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 governments concerned" and 
that "no purpo se would be served by a general inquest by the CONTRACTING PARTIES".253 The 
 
243 GATT CONTRACTING PARTIES, Third Session, Summary of the twenty -second meeting 
(8 June 1949), GATT/CP.3/SR.22 , (Exhibit USA -27), p. 4.  
244 Summary of the meeting of the GATT CONTRACTING PARTIES (8 June 1949) , (Exhibit USA -27), pp. 
4-5. 
245 Summary of the meeting of the GATT CONTRACTING PARTIES (8 June 1949) , (Exhibit USA -27), p. 5.  
246 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949) , (Exhibit USA -27), p. 6.  
247 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949) , (Exhibit USA -27), p. 6.  
248 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949) , (Exhibit USA -27), p. 6.  
249 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949) , (Exhibit USA -27), pp. 
6-7. 
250 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949) , (Exhibit USA -27), p. 7.  
251 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949) , (Exhibit USA -27), p. 7.  
252 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949) , (Exhibit USA -27), p. 7.  
253 Summary of the meeting of the GATT CONT RACTING PARTIES (8  June 1949) , (Exhibit USA -27), pp. 
7-8 and Corrigendum.  WT/DS556/R/Suppl.1  
 
- 48 - 
 
  representative of the United Kingdom concluded that the request of Czechoslovakia should be 
dismissed.254 
5.20.   The representative of Czechoslovakia stated that Article  XXI was being "misa pplied 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".255 
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.256 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 the exp orts of the country".257 
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".258 The Chairperson fu rther 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 
appropriate".259 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 securit y covered by the 
latter".260 The Chairperson took note of the lack of support for a proposal to set up a Working Party 
to examine the issue.261 
5.23.   The Chairperson thus stated that the "CONTRACTING PARTIES  … should give a decision in 
accordance with paragraph 2 of Article  XXIII".262 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  1947.263 The Chairperson was however of the opinion that the question was not 
appropriately put in light of the United Sates' defence under Articles XX and XXI of the GATT  1947.264 
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".265 
5.24.   A vote took place with Cz echoslovakia being the only contracting party voting in the 
affirmative.266 Seventeen delegations voted in the negative, three abstained, and two were 
absent.267 
5.25.   The representative of Pakistan explained his vote holding that "the charge … was not proved 
by factual evidence".268  
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".269 He further "enquired whether the decision could not be communicated to all 
 
254 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949) , (Exhibit USA -27), p. 8 
and Corrigendum.  
255 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949) , (Exhibit USA -27), p. 8.  
256 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949) , (Exhibit USA -27), p. 8.  
257 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949) , (Exhibit USA -27), p. 8.  
258 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949) , (Exhibit USA -27), p. 8.  
259 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949) , (Exhibit USA -27), p. 8.  
260 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949) , (Exhibit USA -27), p. 8.  
261 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949) , (Exhibit USA -27), pp. 
8-9. 
262 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949) , (Exhibit USA -27), p. 9.  
263 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949) , (Exhibit USA -27), p. 9.  
264 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949) , (Exhibit USA -27), p. 9.  
265 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949) , (Exhibit USA -27), p. 9.  
266 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949) , (Exhibit USA -27), p. 9.  
267 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949) , (Exhibit USA -27), p. 9.  
268 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949) , (Exhibit USA-27), p. 9.  
269 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949) , (Exhibit USA -27), p. 
10. WT/DS556/R/Suppl.1  
 
- 49 - 
 
  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".270 
5.27.   The repr esentative of the United  States  "expressed his understanding of the position of those 
representatives who abstained".271 
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".272 
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 follows273: 
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 
security exceptions was "not justiciable".274 According to the United  States , various participants at 
the meeting "expressed the view that Article  XXI is self -judging".275 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.276 The Chairperson stated that the 
question should rather be whether the United  States  "had failed to carry out its obligations" under 
the GATT  1947.277 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.278 
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".279 The United  States  notes tha t 
no contracting party disagreed with that statement.280 According to the United  States , this supports 
its view that, based on the rules applicable at that time, the CONTRACTING PARTIES had reached 
 
270 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949) , (Exhibit USA -27), p. 
10. 
271 Summary of the meeting of the GATT CONTRACTIN G PARTIES (8  June 1949) , (Exhibit USA -27), p. 
10. 
272 Summary of the meeting of the GATT CONTRACTING PARTIES (8  June 1949) , (Exhibit USA -27), p. 
10. 
273 GATT, Basic Instruments and Selected Documents, Volume II (Decisions, Declarations, Resolutions, 
Rulings an d Reports), May 1952 , (Exhibit USA -28), pp. 1 -3. 
274 United  States ' first written submission, para.  47. 
275 United  States ' first written submission, para.  50. 
276 United  States ' response to Panel question No.  64. 
277 United  States ' response to Panel question No.  64. 
278 United  States ' response to Panel question No.  64. 
279 United  States ' opening statement at the first meeting of the Panel , para.  30. (emphasis original)  
280 United  States ' opening statement at the first meeting of the Panel , para.  30. WT/DS556/R/Suppl.1  
 
- 50 - 
 
  agreement on the interpretation of Article  XXI of the GATT  1947 that "actions pursuant to that 
provision are not subject to review for consistency in GATT or WTO dispute settlement".281 
5.32.   Switzerland submits that the 1949 Decision does not address the general interpretive question 
of the standard of review to be appl ied to the invocation of the security exceptions and has no 
bearing specifically upon the interpretation of the relevant provision.282 According to Switzerland, 
the 1949 Decision simply rejected the claim of Czechoslovakia that the administration of export 
licences by the United  States  was GATT -inconsistent.283 
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 in to 
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" un der Paragraph 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:  
(a) any subsequent agreement between the parties regardin g 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.284 
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 provision at issue is Article  XXI of the GATT  1994, 
which is an agreement that is "legally distinct" f rom the GATT  1947 pursuant to Article  II:4 of the 
WTO Agreement .285 The document under review was a decision adopted in 1949 by the GATT 
CONTRACTING PARTIES as opposed to the WTO Members, and dealt with the application of a 
provision of the GATT  1947, and n ot the GATT  1994.286 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 interpretat ion 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 concerned were discussed and examined in a plenary meeting of the CONTRACTING PARTIES, 
and eventually a dec ision 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 concerning the 
invocation of the security exceptions, nor do those minutes reflect the notion put forw ard 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 vote was not unanimous, with Czechoslovakia voting to 
uphold its challenge, three delegations abstain ing 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 
"agreement" for the purposes of Article  31(3)(a) of the Vienna  Convention .  
 
281 United States ' opening statement at the first meeting of the Panel , para.  30. 
282 Switzerland's response to Panel question No.  67. 
283 Switzerland's response to Panel question No.  67. 
284 See Appellate  Body Report, US – Clove Cigarettes , para.  262. 
285 See para.  1.1 above.  
286 See Panel  Report , Australia – Tobacco Plain Packaging , para.  7.3008.  WT/DS556/R/Suppl.1  
 
- 51 - 
 
  5.38.   The Panel is therefore of the v iew 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 the WTO  Agreement : … 
(iv) other decisions of the CONTRACTING PARTIES to GATT  1947. 
5.41.   Article  XVI:1 of t he WTO  Agreement  reads:  
Article  XVI 
Miscellaneous Provisions  
1. Except as otherwise provided under this Agreement or the Multilateral Trade 
Agreements, the WTO 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. 
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  1994.287  
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 agre ement 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 c oncerned, or give a ruling on the matter, as 
appropriate". The provision thus clarifies that recommendations or rulings issued by the 
CONTRACTING PARTIES were limited to the issue raised in a specific controversy and directed at the 
contracting parties con cerned. 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.288 The Panel is therefore 
not persuaded that the 1949 Decision could be characterized as a relevant "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 "every country must be th e judge in 
the last resort on questions relating to its own security"289, the debate focused mostly on the factual 
circumstances of the controversy between the two disputing parties, and on whether Czechoslovakia 
 
287 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 legally binding 
determination in respect of the rights and/or obligations generally applicable to all contracting parties to 
GATT  1947". (See Panel  Reports, US – FSC, para.  7.63; Australia – Tobacco Plain Packaging , fn 5900).  
288 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 res pect to resolving the 
particular dispute between the parties to that dispute". (Appellate  Body Report, Japan – Alcoholic Beverages II , 
p. 14).  
289 See para.  5.19 above. WT/DS556/R/Suppl.1  
 
- 52 - 
 
  had submitted sufficient 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.290 
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 question concerning the revie wability 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 TH E 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 .291 
6.2.  Switzerla nd submits that the 1982 Decision may constitute a "decision" pursuant to 
Paragraph  1(b)(iv) of the GATT  1994 and, in any event, would fall within the scope of Article  XVI:1 
of the WTO  Agreement .292 
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 CONCERNING 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 co nstitute, in certain circumstances, an 
element of disruption and uncertainty for international trade and affect benefits accruing 
to contracting parties under the General Agreement;  
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 CONTRACTING PARTIES may decide to make a formal 
interpretation of Article  XXI it is ap propriate 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. 
 
290 See para.  5.24 above.  
291 United  States ' response to Panel question No.  25. 
292 Switzerland's response to Panel question No.  25. WT/DS556/R/Suppl.1  
 
- 53 - 
 
  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 requested to give further consideration to this matter in due 
course.293 
6.4.  The United  States  argues that the preamble to the 1982 Decision "twice acknowledges the self -
judging nature of Article  XXI".294 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".295 Specifically, the United  States  
maintains that this expression mirrors "the pivotal self -judging phrase" of Article  XXI of the 
GATT  1947.296 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 consideration the interests of third parties which may be affected".297 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 authority of each contracting 
party".298 
6.5.  According to Switzerland, the 1982 Decision sets fo rth procedural guidelines for the application 
of Article  XXI that apply until "the CONTRACTING PARTIES may decide to make a formal 
interpretation of Article  XXI".299 Switzerland argues that while the 1982 Decision does not specifically 
discuss the standard of review under Article  XXI(b), it provides that in the event that provision is 
invoked, the contracting parties retain "their full rights under the General Agreement".300 According 
to Switzerland, "the 1982 Decision thus confirms that the [c]ontracting [p]arties, and subsequently 
WTO Members, retain their full rights, including a right to challenge an action for which a defence 
under Article  XXI(b) is invoked and a right t o have their claims reviewed by a panel".301 Switzerland 
maintains that, contrary to what the United  States  argues, there is nothing in the preamble to the 
1982 Decision that would confirm that Article  XXI of the GATT  1994 is "self -judging".302  
6.2  Assessment by the Panel  
6.6.  The Panel notes that the parties agree that the 1982 Decision is a "decision" within the meaning 
of Article  XVI:1 of the WTO  Agreement . 
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 GATT contracting parties in the application of Article  XXI of the 
GATT  1947.303 In this respect, the Panel considers that the 1982 Decisi on could be regarded as a 
decision falling under Paragraph 1(b)(iv) of the GATT  1994.304 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  1994.305 The 
United  States  finds support for this affirmation in two paragraphs of the pream ble.306 The first 
paragraph of the preamble recognizes the importance of Article  XXI for the safeguard of the 
 
293 GATT CONTRACTING PARTIES, Decision Concerning Article  XXI of the General Agreement 
(30 November  1982), L/5426 , (Exhibit USA -62). (emphasis original)  
294 United  States ' response to Panel question No.  25. 
295 United  States ' response to Panel question No.  25. 
296 United  States ' response to Panel question No.  25. 
297 United  States ' response to Panel question No.  25. 
298 United  States ' response to Panel question No.  25. 
299 Switzerland's response to Panel question No.  25. 
300 Switzerland's response to Panel question No.  25; second written submission, para.  247. 
301 Switzerland's response to Panel question No.  25. 
302 Switzerland's second written submission, para.  248. 
303 Pursuant to Article  XXV:1 of the GATT  1994, "[w]herever re ference is made in this Agreement to the 
contracting parties acting jointly they are designated as the CONTRACTING PARTIES".  
304 See fn  287 above.  
305 United  States ' response to Panel question No.  25. 
306 United  States ' response to Panel question No.  25. WT/DS556/R/Suppl.1  
 
- 54 - 
 
  Members' rights "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 unders cored by the stipulation in paragraph 2 
of the 1982 Decision that, "[w]hen action is taken under Article  XXI, all contracting 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 without further elaboration as to the interpretation or scope of those 
rights. In the absence of any explicit indication to the contrary, th e 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 DS U.  
6.11.   Accordingly, the Panel does not find any 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 the 
United  States  in this dispute.  
7  VIEWS OF THE GATT CONTRACT ING 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 national security.307 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 rul es of public international  law.308 
7.2.  Switzerland argues that the views of the GATT contracting parties cited by the United  States  
are not relevant under Article  31 of the Vienna  Convention , Paragraph 1(b)(iv) of the GATT  1994, 
or Article  XVI:1 of the WTO  Agreement , and may at most be considered as supplementary means of 
interpretation under Article  32 of the Vienna  Convention .309 In any event, Switzerland argues that 
the above -mentioned views are not relevant for the purposes of interpreting Article  XXI of the 
GATT  1994, because they pre -date the GATT  1994 and demonstrate that the GATT contracting views 
did not share a common interpretation of the terms of Article  XXI of the GATT  1947.310 Finally, 
Switzerland notes that most of the views expressed by GATT contrac ting parties did not specifically 
address the question of whether the invocation of Article  XXI is subject to review by a panel and 
were expressed in different circumstances.311 
7.1.1   Ghana's reference to measures taken pursuant to Article  XXI in the context of t he 
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 
 
307 United  States ' first written submission, para.  106. 
308 United  States ' response to Panel question No s. 69-70. 
309 Switzerland's response to Panel question No.  69. 
310 Switzerland's opening statement at the first meeting of the Panel , paras.  71-73. 
311 Switzerland's second written submission, para.  239. WT/DS556/R/Suppl.1  
 
- 55 - 
 
  coming into Ghana from Portugal .312 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 its essential security interests" and therefore there could be no objection 
to Ghana's measure.313 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 bringing 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".314 No contracting party commented on the 
statement made by the representative of Ghana. The Chairperson affirmed that the statement made 
by the representative of Ghana on the invocation of Article  XXI would be noted.315 
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".316  
7.5.  Switzerland argues  that the fact that Ghana considered that it had discretion with respect to 
the necessity of its measures vis-à-vis Portugal  does not imply that it considered Article  XXI(b)  of 
the GATT  1947 as a whole to be self -judging.317 
7.1.2   The United Arab Re public'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.318 The representative of the United Arab Republic stated that direct boycott 
measures would not entail any inconsisten cy 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.319 Concerning the secondary boycott,  some members of the 
Working Pa rty "reserved all rights, under GATT or otherwise".320 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.321 In light of the political cha racter of the issue, the 
representative of the United Arab Republic indicated that his government did not wish to discuss it 
within the GATT.322 Other members of the Working Party supported the views expressed by the 
representative of the United Arab Republ ic that the background of the measures was political and 
not commercial.323 The representative of Israel stated that she would not reply to the political issues 
raised, as they were being discussed in the competent organs of the United Nations.324 
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 
commercial" indicates that the GATT contracting parties viewed Article  XXI of th e GATT  1947 as 
"self-judging".325 
 
312 GATT CONTRACTING PARTIES, Nineteenth Session, Summary Record of the Twelfth Session 
(9 December  1961), SR.19/12 , (Exhibit USA -57), p. 196.  
313 Summary of the meeting of the GATT CONTRACTING PARTIES (9  December  1961) , (Exhibit USA -57), 
p. 196.  
314 Summary of the meeting of the GATT CONTRACTING PARTIES (9  December  1961) , (Exhibit USA -57), 
p. 196.  
315 Summary of the meeting of the GATT CONTRACTING PARTIES (9  December  1961) , (Exhibit USA -57), 
p. 196.  
316 United  States ' first written submission, para.  108. 
317 Switzerland's second written submission, para.  241. 
318 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. 
319 Working Party Report on Accession of the United Arab Republic, (Exhibit USA -58), para.  19. 
320 Working Party Report on Accession of the United Arab Republic, (Exhibit USA -58), para.  20. 
321 Working Party Report on Accession of the United Arab Republic, (Exhibit USA -58), para.  22. 
322 Working Party Report on Accession of the United Arab Republic, (Exhibi t USA -58), para.  22. 
323 Working Party Report on Accession of the United Arab Republic, (Exhibit USA -58), para.  23. 
324 Working Party Report on Accession of the United Arab Republic, (Exhibit USA -58), para.  24. 
325 United  States ' first written submission, para.  110. WT/DS556/R/Suppl.1  
 
- 56 - 
 
  7.8.  Switzerland notes that there is no explicit reference in the report of the Working Party to 
Article  XXI of the GATT  1947.326 Moreover, Switzerland notes that some members of the Working 
Party reserved all their rights under the GATT  1947, including the right to challenge the measures 
pursuant to Article  XXIII of the GATT  1947.327 According to Switzerland, the information on reco rd 
does not suggest that the GATT contracting parties viewed Article  XXI as "self -judging".328 
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 rela tion 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 Euro pean 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".329 The th ree 
contacting parties further expressed the hope that "the situation … will soon be satisfactorily resolved 
by appropriate negotiations elsewhere".330 
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 in tervene in a conflict in which 
only one of the countries concerned was involved".331 The representative of Argentina further argued 
that the measures were not justified under the GATT  1947, and specifically not under Article  XXI.332  
7.12.   The representative of th e 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".333 According to the representative of the 
European  Communities , the exercise of these rights "required neither 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".334 Finally, the representative 
of the European  Communities  expressed the hope that "appropriate negotiations elsewhere" would 
promptly allow for the settlement of the situation.335 
7.13.   The representative of Canada maintained that his government took act ion in light of a 
resolution of the UN Security Council, that 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".336 Accordingly, the representative of Canada stated that 
his delegation could not accept the notion that there had been a violation of the GATT  1947.337 The 
representative of Canada added that Article  XXI of the GATT  1947 did not define "essential security 
interests", nor did it mention notification.338 
7.14.   The representative of Australia maintained that it was inappropriate to enter a debate 
regarding the "political aspect" of the matter.339 The representative of Australia stat ed that the 
 
326 Switzerland's second written submission, para.  242. 
327 Switzerland's second written submission, para.  242. 
328 Switzerland's second written submission, para.  242. 
329 European  Communities , Australia, and Canada, "Trade Restrictions Affe cting Argentina Applied for 
Non-Economic Reasons" (Revision), Communication to GATT contracting parties (4  May 1982), L/5319/Rev.1 , 
(Exhibit USA -60), para.  1. 
330 Communication of the European  Communities , Australia, and Canada to GATT contracting parties 
(4 May 1982) , (Exhibit USA -60), para.  2. 
331 GATT Council, Minutes of the Meeting (7  May 1982), C/M/157,  (Exhibit USA -59), p. 2.  
332 GATT Council, Minutes of the Meeting (7  May 1982),  (Exhibit USA -59), p. 4.  
333 GATT Council, Minutes of the Meeting (7  May 1982),  (Exhibit USA -59), p. 10.  
334 GATT Council, Minutes of the Meeting (7  May 1982),  (Exhibit USA -59), p. 10.  
335 GATT Council, Minutes of the Meeting (7  May 1982),  (Exhibit USA -59), p. 10.  
336 GATT Council, Minutes of the Meeting (7  May 1982),  (Exhibit USA -59), p. 10.  
337 GATT Council, Minutes of the Meeting (7  May 1982),  (Exhibit USA -59), p. 10.  
338 GATT Council, Minutes of the Meeting (7  May 1982),  (Exhibit USA -59), pp. 10 -11. 
339 GATT Council, Minutes of the Meeting (7  May 1982),  (Exhibit USA -59), p. 11.  WT/DS556/R/Suppl.1  
 
- 57 - 
 
  measures were in conformity with Article  XXI(c) of the GATT  1947, "which did not require notification 
or justification".340 
7.15.   Other GATT contracting parties took the floor at the meeting, expressing various views in 
support of the positions of eit her Argentina or the contracting parties that had adopted the measures 
discussed at the meeting.341  
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".342 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.343 The representative of Brazil further st ated 
that the actions of the UN Security Council "had a bearing on the GATT in the light of paragraph (c) 
of Article  XXI".344 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.345 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 th e 
question of whether actions taken under Article  XXI fell outside the scope of Article  XXIII.346 
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 
Argentina".347 
7.18.   The representative of Cuba argued that Article  XXI of the GATT  1947 "did not provide legal 
grounds" for the measures adopte d by the European  Communities , Canada, and Australia.348 
7.19.   The representative of the Philippines noted that he was under the impression 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".349 Since the 
European  Communities  was not a contracting party to the GATT, the representative of the Philippines 
"wondered about its inherent rights".350 
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".351 
7.21.   The representative of Singapore cons idered that "the wording of Article  XXI allowed a 
contracting party the right to determine the need for protection of its essential security interests".352 
At the same time, the representative of Singapore " saw a danger in the broad interpretation which 
Article XXI permitted".353 
7.22.   The representative of the United  States  argued that "the GATT had never been the forum for 
resolution of any disputes whose essence was security and not trade, and that for good reasons, 
such disputes had seldom been discussed in th e GATT, which had no power to resolve political or 
 
340 GATT Council, Minutes of the Meeting (7  May 1982),  (Exhibit USA -59), p. 11.  
341 GATT Council, Minutes of the Meeting (7  May 1982),  (Exhibit USA -59), pp. 2 -13. 
342 GATT Council, Minutes of the Meeting (7  May 1982),  (Exhibit USA -59), p. 5.  
343 GATT Council, Minute s of the Meeting (7  May 1982),  (Exhibit USA -59), p. 5.  
344 GATT Council, Minutes of the Meeting (7  May 1982),  (Exhibit USA -59), p. 5.  
345 GATT Council, Minutes of the Meeting (7  May 1982),  (Exhibit USA -59), p. 5.  
346 GATT Council, Minutes of the Meeting (7  May 1982),  (Exhibit USA -59), p. 12  
347 GATT Council, Minutes of the Meeting (7  May 1982),  (Exhibit USA -59), p. 6.  
348 GATT Council, Minutes of the Meeting (7  May 1982),  (Exhibit USA -59), p. 6.  
349 GATT Council, Minutes of the Meeting (7  May 1982),  (Exhibit USA -59), p. 7.  
350 GATT Council, Minutes of the Meeting (7  May 1982),  (Exhibit USA -59), p. 7.  
351 GATT Council, Minutes of the Meeting (7  May 1982),  (Exhibit USA -59), p. 7.  
352 GATT Council, Minutes of the Meeting (7  May 1982),  (Exhibit USA -59), p. 7  
353 GATT Council, Minutes of the Meeting (7  May 1982),  (Exhibit USA -59), p. 7.  WT/DS556/R/Suppl.1  
 
- 58 - 
 
  security disputes".354 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".355 The representative of the United  States  concluded that 
the matter fell outside the sphere of competence of the GATT.356 
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 therefore be "handled with great care".357 
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 interests in case of serious danger and not to punish another contracting party 
for actions which were hardly of an economic n ature".358 The representative of Poland also took the 
view that Article  XXI was subject to the provision of Article  XXIII:2 of the GATT  1947.359 
7.25.   The representatives of I ndia, New Zealand , Singapore , the United  States , and Zaire held the 
view that the GATT wa s not the appropriate forum to deal with the matter.360 
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 ri ghts and whether justification, notification and/or approval were necessary".361 The 
Chairperson then suggested, "in light of the utmost importance of the subject", that the matter 
remain open and be kept on the agenda of the Council.362 
7.27.   The GATT Council con tinued 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  1947.363 The following is an excerpt from the minutes of the meeting reporting the 
view of the representative of Argentina:  
That note woul d enable the contracting parties firstly, to know whether Article  XXI 
exempted contracting parties from any obligation regarding notification and surveillance 
procedures when measures taken under its provisions affected the trade of another 
contracting par ty; 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 t wo 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.364 
7.28.   The representatives of the European  Communities  recalled his statement at the pr evious 
meeting.365 The representative of Canada expressed surprise that there had been no reference to 
an earlier invocation of Article  XXI by Ghana.366 According to the representative of Canada, on that 
occasion the notion of national security was interpret ed in a broad sense by the government of 
 
354 GATT Council, Minutes of the Meeting (7  May 1982),  (Exhibit USA -59), p. 8.  
355 GATT Council, Minutes of the Meeting (7  May 1982),  (Exhibit USA -59), p. 8.  
356 GATT Council, Minutes of the Meeting (7  May 1982),  (Exhibit USA -59), p. 8.  
357 GATT Council, Minutes of the Meeting (7  May 1982),  (Exhibit USA -59), p. 8  
358 GATT Council, Minutes of the Meeting (7  May 1982),  (Exhibit USA -59), p. 9.  
359 GATT Council, Minutes of the Meeting (7  May 1982),  (Exhibit USA -59), p. 9.  
360 GATT Council, Minutes of the Meeting (7  May 1982),  (Exhibit USA -59), pp. 5, 7, 8, and 9.  
361 GATT Council, Minutes of the Meeting (7  May 1982),  (Exhibit USA -59), p. 13.  
362 GATT Council, Minutes of the Meeting (7  May 1982),  (Exhibit USA -59), p. 13.  
363 GATT Council, Minutes of the Meeting (29 -30 June 1982), C/M/159,  (Exhibit USA -61), p. 15.  
364 GATT Council, Minutes of the Meeting (29 -30 June 1982),  (Exhibit USA -61), p. 16.  
365 GATT Council, Minutes of the Meeting (29 -30 June 1982),  (Exhibit USA -61), p. 16.  
366 GATT Council, Minutes of the Meeting (29 -30 June 1982),  (Exhibit USA -61), p. 18.  WT/DS556/R/Suppl.1  
 
- 59 - 
 
  Ghana and there had been no challenge to it.367 The representative of Canada further stated that 
many contracting parties had previously taken similar action and no notification had been provided 
or requested.368 The representative of Australia reiterated the position already expressed at the 
previous meeting.369 He argued that only the CONTRACTING PARTIES acting jointly could interpret 
the GATT  1947 and that, given the infrequent use of Article  XXI until that mome nt, he had doubts 
that there was a need for an interpretation of that provision.370 
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  1947.371 
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 co ntracting party the judg ment as to what it considered to be necessary for 
its security interests.372 
7.31.   The representative of the United Kingdom, speaking for Hong Kong, China,  stated that the 
Council should avoid political discussions.373 The representatives o f Japan, New  Zealand , and Norway 
expressed similar views.374 
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  1947.375 He suggested that the representatives 
contin ue to consider the matter and engage in consultations, and that the Council revert to the item 
at its next meeting.376 
7.33.   Eventually, the CONTRACTING PARTIES adopted the 1982 Decision in relation to these 
discussions.377 
7.34.   In this dispute, the United  States  argue s 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.378 
7.35.   Switzerland notes that "[s] everal GATT [c]ontracting [p]arties expressed views that do not 
support the position that Article  XXI(b) is self -judging ".379 
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 Nicaragua asked the GATT Council 
to "condemn the trade embargo and other restrictive measures" adopted by the United  States .380 
According to Nicarag ua, the measures taken by the United  States  were inconsistent with certain 
provisions of the GATT  1947.381 The representative of the United  States  argued that his government 
took measures for national security reasons that fell within Article  XXI(b)(iii) of  the GATT  1947.382 
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 
 
367 GATT Council, Minutes of the Meeting (29 -30 June 1982),  (Exhibit USA -61), p. 18.  
368 GATT Council, Minutes of the Meeting (29 -30 June 1982),  (Exhibit USA -61), p. 18.  
369 GATT Council, Minutes of the Meeting (29 -30 June 1982),  (Exhibit USA -61), p. 19.  
370 GATT Council, Minutes of the Meeting (29 -30 June 1982),  (Exhibit USA -61), p. 19.  
371 GATT Council, Minutes of the Meeting (29 -30 June 1982),  (Exhibit USA -61), pp. 17, 18.  
372 GATT Council, Minutes of the Meeting (29 -30 June 1982),  (Exhibit USA -61), p. 19.  
373 GATT Council, Minutes of the Meeting (29 -30 June 1982),  (Exhibit USA -61), p. 20.  
374 GATT Council, Minutes of the Meeting (29 -30 June 1982),  (Exhibit USA -61), p. 20.  
375 GATT Council, Minutes of the Meeting (29 -30 June 1982),  (Exhibit USA -61), p. 21.  
376 GATT Council, Minutes of the Meeting (29 -30 June 1982),  (Exhibit USA -61), p. 22.  
377 See para.  6.3 above.  
378 United  States ' first written submission, para.  119. 
379 Switzerland's second written submission, para.  245. 
380 GATT Council, Minutes of the Meeting (29  May 1985), C/M/188,  (Exhibit USA -63), p. 2.  
381 GATT Council, Minutes of the Meeting (29  May 1985),  (Exhibit USA -63), p. 4.  
382 GATT Council, Minutes of the Meeting (29 May 1985),  (Exhibit USA -63), p. 4.  WT/DS556/R/Suppl.1  
 
- 60 - 
 
  debating political and security issues".383 The representative of the United  States  further argued that 
Article  XXI left to each contracting party the judgment of any action "which it considers necessary 
for the protection of its essential security interests".384 In this respect, the representative of the 
United  States  noted that his delegation took a similar position in prior instances.385 According to the 
representative 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".386 
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".387 
7.38.   The representative of Brazil expressed his government's understanding that "the right to 
invoke security reasons under Article  XXI should only be exercised in the lig ht of other international 
obligations such as those assumed under the UN Charter".388 
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".389 
7.40.   The representative of Spain argued that the United  States ' measures could not be justified 
under the provisions of Article  XXI of the GATT  1947.390 
7.41.   The representative of Sweden main tained that "[w]hereas it had to be up to each country to 
define its essential security interests under Article  XXI, contracting parties should be expected to 
exercise their rights under that Article  with utmost prudence".391 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".392 
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.393 
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, any 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 
security was threatened".394 The representative of Czechoslovakia expressed the view that 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 n o legal basis to justify the action taken by the United  States .395 
7.43.   The representative of India argued that a contracting party having recourse to 
Article  XXI(b)(iii) of the GATT  1947 "should be able to demonstrate a genuine nexus between its 
security intere sts and the trade action taken", and that "the security exception should not be used 
to impose economic sanctions for non -economic purposes".396 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  1947.397 
 
383 GATT Council, Minutes of the Meeting (29  May 1985),  (Exhibit USA -63), p. 4. 
384 GATT Council, Minutes of the Meeting (29  May 1985),  (Exhibit USA -63), p. 4.  
385 GATT Council, Minutes of the Meeting (29  May 1985),  (Exhibit USA -63), p. 4.  
386 GATT Council, Minutes of the Meeting (29  May 1985),  (Exhibit USA -63), p. 5.  
387 GATT Council, Min utes of the Meeting (29  May 1985),  (Exhibit USA -63), p. 5.  
388 GATT Council, Minutes of the Meeting (29  May 1985),  (Exhibit USA -63), pp. 7 -8. 
389 GATT Council, Minutes of the Meeting (29  May 1985),  (Exhibit USA -63), p. 8.  
390 GATT Council, Minutes of the Meeting  (29 May 1985),  (Exhibit USA -63), p. 9.  
391 GATT Council, Minutes of the Meeting (29  May 1985),  (Exhibit USA -63), p. 10.  
392 GATT Council, Minutes of the Meeting (29  May 1985),  (Exhibit USA -63), p. 10.  
393 GATT Council, Minutes of the Meeting (29  May 1985),  (Exhibit USA -63), p. 10.  
394 GATT Council, Minutes of the Meeting (29  May 1985),  (Exhibit USA -63), p. 10.  
395 GATT Council, Minutes of the Meeting (29  May 1985),  (Exhibit USA -63), p. 10.  
396 GATT Council, Minutes of the Meeting (29  May 1985),  (Exhibit USA -63), p. 11.  
397 GATT Council, Minutes of the Meeting (29  May 1985),  (Exhibit USA -63), p. 11.  WT/DS556/R/Suppl.1  
 
- 61 - 
 
  7.44.   The representative of Finland expressed the belief that "contracting parties should exercise 
utmost prudence when invoking Article  XXI".398 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".399 The representative of 
Finland expressed the hope that efforts to bring about a mutually a cceptable solution would be 
undertaken elsewhere.400 
7.45.   The representative of Switzerland recognized that Article  XXI "gave overriding weight to the 
judgement of the contracting parties invoking the Article".401 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 the [ GATT  1947] and any deterioration of the climate of  international economic 
cooperation ".402 
7.46.   The representative of Egypt expressed the view that Article  XXI should be invoked "in a limited 
manner and with great prudence".403 
7.47.   The representative of Canada argued that the United  States  had the right to invoke th e 
provisions of the GATT  1947 that it considered to be relevant, and at the same time Nicaragua 
retained its rights under the GATT  1947.404 The representative of Canada further noted that "this 
was fundamentally not a trade issue, but one which could only be resolved in a context broader than 
GATT".405 
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 requirement to justify such action".406  
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".407 
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".408 
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".409 He further expressed 
the hope that "efforts undertaken elsewhere" would contribu te to resolve the matter.410 
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".411 
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".412 
 
398 GATT Council, Minutes of the Meeting (29  May 1985),  (Exhibit USA -63), p. 11.  
399 GATT Council, Minutes of the Meeting (29  May 1985),  (Exhibit USA -63), p. 11.  
400 GATT Council, Minutes of the Meeting (29  May 1985),  (Exhibit USA -63), p. 11.  
401 GATT Council, Minutes of the Meeting (29  May 1985),  (Exhibit USA -63), p. 11.  
402 GATT Council, Minutes of the Meeting (29  May 1985),  (Exhibit USA -63), p. 11.  
403 GATT Council, Minut es of the Meeting (29  May 1985),  (Exhibit USA -63), p. 12.  
404 GATT Council, Minutes of the Meeting (29  May 1985),  (Exhibit USA -63), p. 12.  
405 GATT Council, Minutes of the Meeting (29  May 1985),  (Exhibit USA -63), p. 12.  
406 GATT Council, Minutes of the Meeting ( 29 May 1985),  (Exhibit USA -63), p. 13.  
407 GATT Council, Minutes of the Meeting (29  May 1985),  (Exhibit USA -63), p. 13.  
408 GATT Council, Minutes of the Meeting (29  May 1985),  (Exhibit USA -63), p. 14.  
409 GATT Council, Minutes of the Meeting (29 May 1985),  (Exhibit USA -63), p. 14.  
410 GATT Council, Minutes of the Meeting (29  May 1985),  (Exhibit USA -63), p. 14.  
411 GATT Council, Minutes of the Meeting (29  May 1985),  (Exhibit USA -63), p. 15.  
412 GATT Council, Minutes of the Meeting (29  May 1985),  (Exhibit USA -63), p. 16. WT/DS556/R/Suppl.1  
 
- 62 - 
 
  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 .413 The representatives of 
the United  States  and the European  Communities  criticized the draft decision and saw no utility in 
the recourse to dispute settlement to settle the matter.414 
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 subsequent Council 
meeting.415 
7.56.   At a GATT Council meeting held on 12  March  1986, a panel was established under 
Article  XXII:2 of the GATT  1947.416 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".417 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".418 
7.57.   A meeting of the GATT Council was held on 5 -6 November  1986. A discussion took place, 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 had the right to determine their own national 
security interests419, 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; neither was the case regarding the US embargo";420 (ii) the representative of Argentina 
argued that " Article  XXI had been improperly invoked by the United  States "421; (iii)  the 
representative of Sweden ar gued 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"422; (iv)  the representative of Cuba 
maintained that "the use of Article  XXI by one contracting party to punish another should not be 
acceptable"423; (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 
of the GATT  1947424; (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.425 
7.58.    Ultimately, consensus could not be reached on the adoption of the Panel report.426 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 rep ort.427 
The Council so agreed.428 
7.59.   In this dispute, t he United  States  argues that although the GATT Council could not adopt the 
report, statements of the contracting parties in connection with the United  States ' reference to 
 
413 GATT Council, Minutes of the Meeting (29  May 1985),  (Exhibit USA -63), pp. 16 -17. 
414 GATT Council, Minutes of the Meeting (29  May 1985),  (Exhibit USA -63), pp. 16 -17. 
415 GATT Council, Minutes of the Meeting (29  May 1985),  (Exhibit USA -63), p. 17.  
416 GATT Council, Minutes of the Meeting (12  March  1986), C/M/196,  (Exhibit USA -64), p. 7.  
417 GATT Council, Minutes of the Meeting (12  March  1986), ( Exhibit USA -64), p. 7.  
418 GATT Panel  Report , United  States  – Trade Measures Affecting Nicaragu a, (Exhibit USA -65), para.  5.3. 
419 GATT Council, 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).  
420 GATT Council, Minutes of the Meeting (5 -6 November  1986), ( Exhibit USA -66), p. 10.  
421 GATT Council, Minutes of the Meeting (5 -6 November 1986), (Exhibit USA -66), p. 11.  
422 GATT Council, Minutes of the Meeting (5 -6 November  1986), (Exhibit USA -66), p. 12.  
423 GATT Council, Minutes of the Meeting (5 -6 November  1986), (Exhibit USA -66), pp. 12 -13. 
424 GATT Council, Minutes of the Meeting (5 -6 November  1986), (Exhibit USA -66), p. 14.  
425 GATT Council, Minutes of the Meeting (5 -6 November  1986), (Exhibit USA -66), p. 14.  
426 GATT Council, Minutes of the Meeting (5 -6 November  1986), (Exhibit USA -66), p. 17.  
427 GATT Council, Minutes of the Meeting (5-6 November  1986), (Exhibit USA -66), p. 17.  
428 GATT Council, Minutes of the Meeting (5 -6 November  1986), (Exhibit USA -66), p. 17.  WT/DS556/R/Suppl.1  
 
- 63 - 
 
  Article  XXI of the GATT  1947 "demo nstrate 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".429 
7.60.   Switzerland argues that a number of contracting parties expressed views contrary to those of 
the United  States, and that therefore the exchange of views among GATT contracting parties 
confirms that Article  XXI was not considered to be "self -judging".430 Switzerland also notes that the 
explicit exclusion of Article  XXI(b)(iii) from the Panel's terms of reference confirms that, absent the 
exclusion, the Panel would have been required to review the invocation of Article  XXI by the 
United  States .431 
7.2  Assessmen t by the Panel  
7.61.   The Panel notes that the parties agree that the views of the GATT contracting parties 
summarized above do not have a particular status under either Articles 31 or 32 of the 
Vienna  Convention . The documents submitted refer to discussions taki ng place among GATT 
contracting parties in four separate instances.  
7.62.   With regard to the 1961 meeting 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".432 The minutes of  the meeting do not report any 
reaction by any GATT contracting party to the statement of the representative 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 b y 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 rev eals 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 settleme nt.  
7.64.   With regard to the discussions that took place in 1982 in relation to the invocation 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 conne ction 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 entitled 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 GA TT 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 th e GATT  1947. The Panel further notes that 
these discussions eventually led to the adoption of the 1982 Decision.433 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 the 
United  States  in this dispute.434 
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 Panel 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 nation al 
 
429 United  States ' first written submission, para.  127. 
430 Switzerland's second written submission, para.  251. 
431 Switzerland's s econd written submission, para.  250. 
432 See para.  7.3 above.  
433 See para.  6.3 above.  
434 See para.  6.11 above.  WT/DS556/R/Suppl.1  
 
- 64 - 
 
  security interests, a number of contracting parties expressed opposite views, including 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 special 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 ".435 Eventually, there was no consensus 
in the GATT Council to 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 concludes 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 materials 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.436  
8.2.  Switzerland argues that the materials submitted by the United  States do not suggest that 
Article  XXI(b) of the GATT  1994 is self -judging, but instead confirm that measures taken under 
Article  XXI of the GATT  1994 "were always meant to be subject to a panel's review under 
Article  XXIII of the GATT  1994 and the DSU".437  
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.438 On 28  June 1988, Nicaragua submitted a 
proposal to the Negotiating Group on GATT Articles regarding the interpretation of Article  XXI and 
the consequences of the invocation of that provision.439  
8.5.  First, Nicaragua proposed the adoption of an interpretative note regardi ng 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 tr ied 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 
or other appropriate inter -governmental organisation tha t 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.440 
 
435 See para.  7.56 above.  
436 United  States ' second written submission, para.  46. 
437 Switzerland's second written submission, para.  227. 
438 Negotiating Group on GATT Articles, Communication from Nicaragua (10  Novem ber 1987), 
MTN.GNG/NG7/W/34, ( Exhibit USA -152). 
439 Negotiating Group on GATT Articles, Article  XXI Proposal by Nicaragua (28  June 1988), 
MTN.GNG/NG7/W/48 , (Exhibit USA -150). 
440 Article  XXI Proposal by Nicaragua, ( Exhibit USA -150). WT/DS556/R/Suppl.1  
 
- 65 - 
 
  8.6.  Second,  Nicaragua also proposed 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 un derstood 
to refer only 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 o r other 
appropriate inter -governmental organisation that deals with peace and security 
issues.441 
8.7.  Finally, Nicaragua submitted a proposal for the adoption of the following provision:  
The CONTRACTING PARTIES shall make recommendations, which shall be obligat ory, 
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 the 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.442 
8.8.  On 4 February  1988, Argentina submitted a communication to the Negotiating Group on GATT 
Articles concerning Article  XXI.443 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".444 
8.9.  Argentina noted that the ITO Draft Charter envisaged the possibility to refer disputes of a 
"politic al" 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".445 To avoid "future uses of Article  XXI that could 
continue to undermine the functioning of the General Agree ment", 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 the 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.446 
8.10.   In its communication, Argentina 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" .447 To address this concern, Argentina 
proposed that future provisions "be strengthened … by ensuring suitable legal protection for 
developing or commercially weaker contracting parties".448 
 
441 Article  XXI Proposal by Nicaragua, (Exhibit USA -150). 
442 Article  XXI Proposal by Nicaragua, (Exhibit USA -150). 
443 Negotiating Group on GATT Articles, Communication from Argentina (4  February  1988), 
MTN.GNG/NG7/W/44 , (Exhibit USA -151). 
444 Communication from Argentina, ( Exhibit USA -151), p. 1.  
445 Communication from Argentina, (Exhibit USA -151), p. 2.  
446 Communication from Argentina, (Exhibit USA -151), p. 3. See Articles 86 and 99 of the ITO Draft 
Charter.  
447 Communication from Argentina, (Exhibit USA -151), p. 3.  
448 Communicatio n from Argentina, (Exhibit USA -151), p. 3.  WT/DS556/R/Suppl.1  
 
- 66 - 
 
  8.11.   The two proposals were discussed at a meeting of the Negotiating G roup on GATT Articles 
held on 27 -30 June 1988. Representatives of Argentina and Nicaragua introduced their proposals.449 
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 security reasons, it 
was important to establish a clear relationship between "the measures taken and the security 
considerations on which they were based".450 The same delegation further stated that "[w]ithout 
calling into quest ion the sovereign right to invoke Article  XXI[,] the Group should examine how such 
a direct relationship could be established".451 
8.13.   Other delegations argued that "since Article  XXI involved very sensitive matters a great deal 
of discretion was necessary in d ealing 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 positi on to judge what 
its security interests were".452 It was also noted that "[h]itherto contracting parties had been very 
judicious in using Article  XXI, which had been invoked very infrequently".453 
8.14.   With respect to the proposal submitted by Argentina, "one del egation 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 p olitical".454 
8.15.   Other delegations argued that there was a "danger" of Article  XXI being abused if 
governments were not cautious in its invocation.455 The minutes of the meeting further report that 
"[o]ther delegations, which did not favour any change in the te xt 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".456 The minutes mention that "[t]he 
point was also made that the right of recourse to Article  XXIII was the appropriate safeguard against 
abuse".457  
8.16.   Finally, with regard to the issue of the lack of retaliatory power for less -developed contracting 
parties, delegations expressed a variety of views, ranging from not se eing 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.458 
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".459 According to the United  States , even those delegations that agreed with 
Argentina and Nicaragua acknowledged this meaning.460 The United  States  maintains that the 
documents submitted show how "Uruguay Round negotiators did not intend to alter the self -judging 
nature of Article  XXI, and they rejected proposals that would have done so ".461 
8.18.   Switzerland argues that the materials submitted confirm that Article  XXI was not considered 
to be "self -judging" in the sense argued by the United  States  and was meant to be sub ject to the 
disciplines of Article  XXIII, "which were further developed and strengthened in the DSU".462 
 
449 Negotiating Group on GATT Articles, Note on Meeting of 27 -30 June 1988, MTN.GNG/NG7/8 , (Exhibit 
USA-153), pp. 1 -2. 
450 Negotiating Group on GATT Articles, Note on Meeting of 27 -30 June 1988, (Exhibit USA-153), p. 2.  
451 Negotiating Group on GATT Articles, Note on Meeting of 27 -30 June 1988, (Exhibit USA -153), p. 2.  
452 Negotiating Group on GATT Articles, Note on Meeting of 27 -30 June 1988, (Exhibit USA -153), p. 2.  
453 Negotiating Group on GATT Articles, Note  on Meeting of 27 -30 June 1988, (Exhibit USA -153), p. 2.  
454 Negotiating Group on GATT Articles, Note on Meeting of 27 -30 June 1988, (Exhibit USA -153), pp. 2 -
3. 
455 Negotiating Group on GATT Articles, Note on Meeting of 27 -30 June 1988, (Exhibit USA -153), p. 3 . 
456 Negotiating Group on GATT Articles, Note on Meeting of 27 -30 June 1988, (Exhibit USA -153), p. 3.  
457 Negotiating Group on GATT Articles, Note on Meeting of 27 -30 June 1988, (Exhibit USA -153), p. 3.  
458 Negotiating Group on GATT Articles, Note on Meeting of 27 -30 June 1988, (Exhibit USA -153), p. 3.  
459 United  States ' second written submission, para.  55. 
460 United  States ' second written submission, para.  55. 
461 United  States ' second written submission, para.  55. 
462 Switzerland's second written submission , para.  233. WT/DS556/R/Suppl.1  
 
- 67 - 
 
  According to Switzerland, the GATT  1994 negotiators recognized that Article  XXIII was the 
appropriate safeguard against abuse of Article  XXI.463 Switzerland also argues that some negotiators 
recognized the risk of Article  XXI being abused, "including because one party could block the 
establishment of a panel, insist on excluding ce rtain matters from the scope of the terms of 
reference, which at that time required approval by the GATT Council, and thereby oppose the 
examination of the applicability of GATT provisions and compliance with them".464 According to 
Switzerland, the DSU addr essed this issue by introducing standard terms of reference in 
Article  7.1.465 Finally, Switzerland notes that some Members expressed the view that action under 
Article  XXI could be GATT -inconsistent.466 
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 ex ceptions that were proposed by a number 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 r equired 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 Agreement".467 
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 ar e … [n]ecessary to protect national security".468 Such exception would 
feature alongside exceptions for measures addressing other concerns (e. g., "public morals", "public 
order", "safety or health").469 Like the proposal submitted by Switzerland, this propo sal 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 international trade in 
services".470 Finally, the proposal introduced a notification requirement.471 
8.23.   The United  States  submitted a proposal for a "General Exceptions" provision, which included 
a separate paragraph dealing with n ational security.472 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 
 
463 Switzerland's second written submission, para.  233. 
464 Switzerland's second written submission, para.  233. 
465 Switzerland's second written submission, para.  233. 
466 Switzerland's second written submission, para.  233. 
467 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.  
468 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.  
469 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.  
470 Communication from Br azil, 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.  
471 Communication from Brazil, Chile, Colombia, Cuba, Honduras, J amaica, Nicaragua, Mexico, Peru, 
Trinidad and Tobago and Uruguay – Structure of a Multilateral Framework for Trade in Services , (Exhibit USA -
184), p. 9.  
472 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.  WT/DS556/R/Suppl.1  
 
- 68 - 
 
  or other emergency in international relations".473 Similar elements characteri zed a proposal 
submitted by Japan.474 
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.475 Like the 
proposals of the United  States  and Japan, the dr aft text retained the "it considers" language and the 
reference to action "taken in time of war or other emergency in international relations".476 In 
addition, the proposal of the European  Communities : (i) required parties to "take into consideration 
the interests of third parties which may be affected"; (ii)  provided that "PARTIES shall be informed 
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".477 
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".478 The draft included an "Exceptions" provision with 
a paragraph specifically dealing with national 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 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 the provision of services  as carried on directly or indirectly 
for the purpose 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; o r 
(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.  
3. PARTIES shall be informed to the fullest extent possible of measures taken under this 
Article.479 
 
473 Communication from the United  States  – Agreement on Trade in Services, (Exhibit USA -185), p. 12.  
474 Group of Negotiations on Services, Communication from Japan - Draft General Agreement on Tra de 
in Services (10  July 1990), MTN.GNS/W/107, ( Exhibit USA -187), p. 12.  
475 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. 
476 Communication from the European  Communities  – Draft General Agreement on Trade in Services , 
(Exhibit USA -186), p. 13.  
477 Communication from the European  Communities  – Draft General Agreement on Trade in Services , 
(Exhibit USA -186), p. 13.  
478 Group of N egotiations on Services, Draft Multilateral Framework for Trade in Services (23  July 1990), 
MTN.GNS/35, ( Exhibit USA -188). 
479 Group of Negotiations on Services, Draft Multilateral Framework for Trade in Services (23  July 1990) , 
(Exhibit USA -188), pp. 11 -12. WT/DS556/R/Suppl.1  
 
- 69 - 
 
  8.26.   With minimal modifications, this provision was also included in the draft text of the GATS 
circulated in December 1990.480 
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 inf ormation 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 the provisio n of services as carried out directly 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 measures taken under 
paragraphs 1(b) and (c) and of their termination .481 
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 t ext 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.482 The draft text did not include 
a provision on security exceptions, but incorporated GATT provisions "to the extent that this PART 
does not provide for more specific rights, obligations and exceptions thereof".483  
8.30.   The second document is an excerpt from the December 1991 draft text of the TRIPS circulated 
by the Chairperson 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:  
 
480 Trade Negotiations Committee, Draft 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. 
481 Draft Final Act Embodying the Results of the Urugu ay Round (20  December  1991),  (Exhibit USA -
190), pp. 18 -19. 
482 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). 
483 Draft Text of the TRIPS  Agreement , (Exhibit USA -191), p. 78.  WT/DS556/R/Suppl.1  
 
- 70 - 
 
  (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 e ssential 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 direct ly or 
indirectly for the purpose of supplying a military establishment;  
(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 Ch arter for the maintenance of international peace and 
security.484 
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.485 
According to the United  States , the Uruguay Round drafters deliberately 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 separ ation from the discipline on 
"general exceptions".486 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.487 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 in 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.488  
8.32.   The United  States  notes that the proposal 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 th e interests of third parties which may be 
affected".489 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".490 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 Decision491 and "yet retained the self -judging 
reference to actions a Member 'considers necessary for the protection of its essential security 
interests'".492 
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 "deliberately" chose to 
separate security exceptions from general exceptions, subjecting only the latter to review for non -
discrimination, leaving the former "self -judging".493 
 
484 Draft Final Act Embodying the Results of the Uruguay Round (20  December  1991) , (Exhibit USA -
190), p. 90.  
485 United  States ' second written subm ission, para.  56. 
486 United  States ' second written submission, paras.   56-57. 
487 United  States ' second written submission, paras.   58-59. 
488 United  States ' second written submission, para.  60. 
489 United  States ' second written submission, para.  61; Communicatio n from the European  Communities  
– Draft General Agreement on Trade in Services , (Exhibit USA -186), p. 13.  
490 United  States ' second written submission, para.  61. 
491 See para.  6.3 above.  
492 United  States ' second written submission, para.  61. 
493 United  States ' second written submission, paras.  62-63. WT/DS556/R/Suppl.1  
 
- 71 - 
 
  8.34.   The United  States  finally refers to the negotiating history of the security exceptions in the 
TRIPS Agreement .494 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 except ions at TRIPS Article  73".495 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".496 
8.35.   Switzerland argues that nothing in the negotiating history of the GATS and the 
TRIPS  Agreement  suggests that the security exceptions contained in those agreements are "self-
judging ".497 
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.498 Nicaragu a 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 t hem. 
… 
Any panel must reach a clear conclusion on nullification or impairment of benefits.499 
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".500 The delegation of Chile submitted an 
addendum to the note, summarizing its statements at the meeting.501 Referring to the 
communication of Nicaragua discussed above, Chile considered "pertinent" the contents of large 
parts of the document.502 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".503 
8.39.   The United  States  argues that Nicaragua's proposal was not incorporated into the DSU.504 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".505 According to 
the United  States , the decision of the drafters "not  to include language in the DSU that would alter 
 
494 United  States ' second written submission, para.  62. 
495 United  States ' second written submission, para.  65. 
496 United  States ' second written submission, para.  65. 
497 Switzerland's opening statement at the second meeting of the Panel , para.  38. 
498 Negotiating Group on Dispute Settlement, Communication from Nicaragua (3  November  1987), 
MTN.GNG/NG13/W/15 , (Exhibit USA -192). 
499 Communication from Nicaragua , (Exhibit USA -192), p. 8.  
500A 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).  
501 Negotiating Group on Dispute Settlement, Meeting of 20  November  1987 – Note by the Secretariat 
(Addendum), MTN.GNG/NG13/5/Add.1, (Exhibit USA -194). 
502 Negotiating Group on Dispute Settlement, Meeting of 20  November  1987 – Note by the Secretariat 
(Addendum),  (Exhibit USA -194), p. 2.  
503 Negotiating Group on Dispute Settlement, Meeting of 20  November  1987 – Note by the Secretariat 
(Addendum),  (Exhibit U SA-194), p. 2.  
504 United  States ' second written submission, para.  68. 
505 United  States ' second written submission, para.  69; Negotiating Group on Dispute Settlement, 
Meeting of 25  June 1987 - Note by the Secretariat, MTN.GNG/NG13/2  (Exhibit USA -195), and Negotiating 
Group on Dispute Settlement, Meeting of 11  July 1988 - Note by the Secretariat, MTN.GNG/NG13/9 , (Exhibit 
USA-196). WT/DS556/R/Suppl.1  
 
- 72 - 
 
  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.506 
8.40.   Switzerland argues that some negotia tors recognized the risk of Article  XXI being abused, 
including because one party could block the establishment of the panel, insist on excluding certain 
matters from the scope of the terms of reference and thereby oppose the examination of the 
applicabili ty of GATT provisions and compliance with them .507 According to Switzerland, these 
shortcomings were ultimately addressed in the DSU, including through standard terms of reference 
in Article  7.1, which can now be changed only by agreement of both parties to  the dispute.508 
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 language 
of Article  XXI of the GATT  1947 and to substantially replicat e it in other covered agreements is 
notable in light of the approaches to security exceptions taken in other trade agreements negotiated 
after 1947.509 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) 
"reflect significant deviations from the text of Article  XXI, including by expressly provid ing for the 
review of measures taken by a government for essential security purposes".510  
8.42.   Switzerland  does not comment on these materials.  
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 supplementary means of interpretation that an interpreter may have 
recourse to in order to confirm the meaning of treaty terms.511 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 pe rtains 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 the 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 that 
in the discussions that followed the proposals submitted by Ni caragua 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 party concerned only " to judge what its 
security interests were ", others maintained that action taken under Article  XXI could be found to be 
 
506 United  States ' second written submission, para.  70. 
507 Switzerland's second written submission, para.  233 and fn  287. 
508 Switzerland's second written submission, para.  233 and fn  287. 
509 United  States ' second written submission, paras.  71 and 82.  
510 United  States ' second written submission, para.  71; Agreement on the Establishment of a Free Trade 
Area between the Government of Is rael and the Government of the United  States  of America , 
(Exhibit  USA-197), The Treaty of Rome, ( Exhibit USA-181), and Agreement on the European Economic Area 
(EEA) , (Exhibit USA-221). 
511 See para.  2.33 above.  WT/DS556/R/Suppl.1  
 
- 73 - 
 
  inconsistent with the GATT, thereby implying the reviewability of the provision.512 Finally, the Panel 
considers it significant that participants referred to Article  XXIII as "the appr opriate safeguard" 
against abuses of the invocation of the security exceptions.513  
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 this dispute, the 
Panel does not consider these documents to provi de 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 Panel 
notes that the three documents submitted concern inconclusive d iscussions 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 final 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 GAT T 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 broader 
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 submitted are relevant to the 
contested issues in this dispute. One o f 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".514 Article  7 of the Agreement incorporates by reference Articles XX and 
XXI of the GATT  1947.515 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 EE A Agreement. Neither 
makes any reference to Article  XXI of the GATT  1947.516 Furthermore, those provisions 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 negoti ations of Article  XXI of the GATT  1994 or of the security exceptions in other covered 
agreements. The sole fact that such "alternative approaches"517 to security exceptions existed at the 
time of the Uruguay Round negotiations is not sufficient in itself fo r the provisions in other 
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. 
 
__________  
 
512 See para.  8.13 above.  
513 See para.  8.15 above.  
514 Israel – United  States  Agreement on the Establishment of a Free Trade Area , (Exhibit USA -197). 
515 Israel – United  States  Agreement on the Establishment of a Free Trade Area , (Exhibit USA-197), 
p. 2. 
516 The Treaty of Rome, ( Exhibit USA-181); EEA Agreement , (Exhibit  USA-221). 
517 United  States ' second written submission, para.  82.