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The US has posted its first submission for the US-Certain Measures on Steel and Aluminum Products (s.232 cases). I'll be posting on @WorldTradeLaw about this, as I suspect others will too, but for now, a thread on my initial reactions.
@WorldTradeLaw As expected, the U.S. argues that Article XXI(b) of the GATT 1994 permits any WTO Member to take action to protect its essential security in a manner it considers necessary. It begins with an interpretation pursuant to Article 31 Vienna Convention.
As per the Russia-Traffic in Transit decision, the US argues that Art XXI(b) is entirely self-judging. This means the WTO Member invoking Art XXI(b) may decide what is "necessary", what is "essential security interests" and whether its actions are identified in ArtXXI(b)(i)-(iii)
The US considers subsequent agreement pursuant to Art XXI(3)(a) to aid in its self-judging claims, with reference to the 1949 dispute with Czechoslovakia. 
The U.S. argues that the supplementary means of interpretation confirm the self-judging nature of ArtXXI(b). Right up front, the U.S. argues that internal deliberations by any Member cannot constitute supplementary means, with the following support.
I'd invite @jdmortenson to reflect on the drafters of the Vienna Convention as to what constituted supplementary means.
Note this is about the U.S., even to the U.S. As the U.S. is not just making a historical argument. The U.S. is arguing that it has consistently held that Article XXI(b) is self-judging for over 70 years.
In considering their analysis of the negotiating history, the U.S. is quick to consider the revisions of the text to include "explicitly self-judging" references, especially the change from "it may consider to be necessary" to "it considers necessary."
In my review, there was little emphasis placed on the word “may” in the U.S. negotiators’ Geneva meetings over any Member’s unilateral power of interpretation. I found no clear evidence within the archival record to confirm the purpose or reason to remove the word “may.”
On the basis that U.S. negotiators rejected amendments from the Services Departments to confirm a pure “self-judging” exception, the removal of the word “may” from the adjectival clause may not evidence the U.S.’s intention for total unilateral power to interpret the exception.
There's quite a bit of detail going over the materials, which in my latest MJIL paper, I go over closely, and I think the U.S. may be zooming into details without offering the broader picture. And while not decisive, I think my review is informative and interesting.
There's much less on non-justiciability in this submission. Instead, the U.S. emphasizes that only non-violation claims of nullification or impairment are available to WTO Members. This is based on its reading of the drafting history.
Yes, the negotiators emphasized that notwithstanding the security-related measures at issue, the ITO would contain a procedure where all Members could seek relief, if required. Australians were especially interested in recourse to non-violation complaints (they helped make it).
But, crucially, advocating access to non-violation complaints for nullification or impairment of benefits did not resolve a larger question as to how the ITO would regulate or address potential abuses of the security exception.
As I mentioned, the U.S. argues that internal U.S. materials are not supplementary means, but even if they were, they confirm Article XXI(b) is self-judging. But, the internal materials show that the key architect of Art XXI did not see a purely self-judging exception.
As I mentioned, the U.S. argues that internal U.S. materials are not supplementary means, but even if they were, they confirm Article XXI(b) is self-judging. But, the internal materials show that the key architect of Art XXI did not see a purely self-judging exception.
The U.S. argument rests on their belief that all U.S. officials involved sought a self-judging provision, but simply did not go as far as military officials thinking the text was already sufficiently self-judging. To this, I disagree.
Read in isolation, the extracted quotes could suggest that. I saw the negotiators working to make an exception subject to the ITO’s dispute settlement mechanism and seeking to bifurcate the interpretive steps in the security exception.
The U.S. negotiators were careful, they had to find compromise. Some aspects of the exception were entirely subjective, but the exception required those Members invoking the exception to demonstrate that the security action fell into the enumerated circumstances.
And, in light of the nascent dispute settlement mechanism, Members recognized that peaceful resolution of disputes depended on informal techniques and norms– described as the ITO’s “atmosphere” or “spirit.”
The U.S. offers a lengthy quote from a U.S. State Dept lawyer Sy Rubin's memo, but does not include Rubin's observation below, which also echoes his statements in the heated meeting in July, 1947.
Regardless of this one quote, I consistently observed the tension between the defense officials and State officials about what U.S. security meant and whether an interdependent global economy and international institution was better for U.S. security or a threat to it.
Regardless of this one quote, I consistently observed the tension between the defense officials and State officials about what U.S. security meant and whether an interdependent global economy and international institution was better for U.S. security or a threat to it.
I do think there was emphasis on the effects of measures - the nullification and impairment of benefits - and this had to do with the view that the ITO was about helping Members balance their negotiated concessions.
Final word, the U.S. argues this panel was "results-driven" and cites to statements made by the Chair in a reuters article @tgemiles.
Find the submission here: ustr.gov/issue-areas/en…
@tgemiles The rest of the submission paragraph is here:
