In the New York draft of the GATT, the security exception was in Article 37, and was combined with the exceptions that are now part of GATT Article XX. Here's what the security exception 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:
...
(e) In time of war or other emergency in international relations, relating to the protection of the essential security interests of a Member;
This language is the precursor to today's Article XXI(b)(iii) (the other sub-provisions of Article XXI were combined with it later in the negotiations).
During the discussions of this provision, in response to questions from another delegate, one of the U.S. negotiators provided this explanation of the meaning of this version of the security exception:
Dr. SPEEKENBRINK: (Netherlands): Just before you start, I would ask for some further clarification on (e). I see, "In time of war or other emergency in international relations, relating to the protection of the essential security interests of a Member". I have, I may say, read that phrase many times, and still I cannot get the real meaning of it.
What do we mean - "emergency in international relations"? Is that "immediate", through a war? - or what is the "emergency in international relations"?
The second point that is troubling me here is, what are the "essential security interests" of a Member? I find that kind of exception very difficult to understand, and therefore possibly a very big loophole in the whole Charter.
I might say that in a time of emergency we have no Peace Treaties signed, and I consider that it is essential for me to bring as much food to the country as possible, so that I must do everything to develop my agriculture, notwithstanding all the provisions of this Charter. It might be a little bit far fetched, but as it stands here it really is worrying me. I cannot get the meaning of it.
CHAIRMAN: The Delegate of the United States.
Mr. J.M. LEDDY (United States): I suppose I ought to try to answer that, because I think the provision goes back to the original draft put forward by us and has not been changed since.
We gave a good deal of thought to the question of the security exception which we thought should be included in the Charter. We recognized that there was a great danger of having too wide an exception and we could not put it into the Charter, simply by saying: "by any Member of measures relating to a Member's security interests," because that would permit anything under the sun. Therefore we thought it well to draft provisions which would take care of really essential security interests and, at the same time, so far as we could, to limit the exceptions and to adopt that protection for maintaining industries under every conceivable circumstance.
With regard to sub-paragraph (e), the limitation, I think, is primarily in the time: first, "in time of war." I think 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 - which I think we cannot deny - what its security interests are.
As to the second provision, "or other emergency in international relations," we had in mind particularly the situation which existed before the last war, before our own participation in the last war, which was not until the end of 1941. War had been going on for two years in Europe and, as the time of our own participation approached, we were required, for our own protection, to take many measures which would have been prohibited by the Charter. Our exports and imports were under rigid control. They were under rigid control because of the war then going on.
I think there must be some latitude here for security measures. 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.
We have given considerable thought to it and this is this is the best we could produce to preserve that proper balance.
CHAIRMAN: Does that give satisfaction to the Delegate of the Netherlands?
Dr. A.B.SPEEKENBRINK: (Netherlands): Well, Mr. Chairman, I certainly could not improve the text myself. I only wanted to point out certain dangers. Otherwise I agree with it.
CHAIRMAN: In defence of the text, we might remember that it is a paragraph of the Charter of the ITO and when the ITO is in operation I think 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.
That's an insightful observation from the Chairman at the end.
