In my last post, I highlighted the comments of John Leddy, a U.S. delegate to the GATT negotiations, on the meaning and scope of the GATT security exception. But you probably noticed that the version under discussion as part of the New York draft does not have the crucial word "considers" in it, a word which provides part of the basis for arguing that the security exemption is "self-judging." So how and when did "considers" get in there? I don't have all the answers, but here is a partial explanation.
In the New York draft of the ITO Charter (corresponding with Article XX of the New York draft of the GATT, which was being drafted simultaneously and separately), the security exception was in Article 37, and was combined with the public policy exceptions that are now part of GATT Article XX. Here's what the security exception provisions looked like in this draft:
SECTION H.
GENERAL EXCEPTIONS
Article 37
General exceptions to chapter VSubject 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 Chapter V shall be construed to prevent the adoption or enforcement by any Member of measures:
...(c) Relating to fissionable materials;
(d) Relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried on for the purpose of supplying a military establishment;
(e) In time of war or other emergency in international relations, relating to the protection of the essential security interests of a Member;
...
(k) Undertaken in pursuance of obligations under the United Nations Charter for the maintenance of international peace and security.
The date of this draft was March 5, 1947.
Soon after, negotiations started up again in Geneva. On July 4, 1947, the U.S. proposed (p. 13) moving the security exceptions to a different part of the Charter and re-wording them a bit:
Article 94
General Exceptions.
Nothing in this Charter shall be construed to require any Member to furnish any information the disclosure of which it considers contrary to its essential security interests, or to prevent any Member from taking any action which it may consider to be necessary to such interests:
a) Relating to fissionable materials or their source materials;
b) Relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried on for the purpose of supplying a military establishment;
c) In time of war or other emergency in international relations, relating to the protection of its essential security interests;
d) Undertaken in pursuance of obligations under the United Nations Charter for the maintenance of international peace and security.
This is where "considers" makes its first appearance, in the introductory clause to the provision. This version was discussed on July 24, as seen here (p. 4) and here (pp. 25-26). Perhaps importantly, it was in this latter document that Leddy offered his explanation of the scope of the security exceptions (pp. 19-21). Thus, the U.S. proposal, with "considers" in it, was already on the table at that time.
When we get to the Geneva Draft of the GATT, dated August 30, 1947, there was additional re-wording, and "considers" had migrated down into the sub-paragraphs:
Article XIX
General Exceptions
1. Nothing in this Agreement shall be construed
(a) to require any contracting party to furnish any information the disclosure of which it considers contrary to its essential security interests, or
(b) to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests.
(i) relating to fissionable materials or the materials from which they are derived;
(ii) relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment;
(iii) taken in time of war or other emergency in international relations; or
(c) to prevent any contracting party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
That's all I could find about the appearance of "considers" in the security exceptions using the online archives. If anyone knows more, please tell us all about it!
