CYIL vol. 9 (2018)

VIKTORIIA LAPA CYIL 9 ȍ2018Ȏ personality principles of international jurisdictional law, which are implicit in the security exception of the GATT. 12 It has to be mentioned that Czechoslovakia was one of the founding Members of the GATT in 1947 and thus, it was able to challenge the US trade-restrictive measures in the GATT. In light of this, Czechoslovakia claimed that the US export controls have been contrary to the GATT provisions, 13 in particular, Article I (MFN principle) and Article XIII (non-discriminatory administration of quantitative restrictions). 14 Not surprisingly, the US invoked the security exception of the GATT – Article XXI (b) (ii) for justification of its export controls. To illustrate, Article XXI (b) (ii) states the following: “Nothing in this Agreement shall be construed… (b) to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests (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” Due to certain vague notions such as “military establishment”, the representative of Czechoslovakia, Mr. Z. Augenthaler mentioned that “the notion ‘war or military’ potential is extremely elastic” 15 and “…the United States Government had used and interpreted the expression ‘war material’ so extensively that no one knew what it really covered. 16 The representative of the United States in response maintained that only 200 group items out of 3,000 were affected by export controls and therefore there was no ground to claim Article XXI was extended to cover all products. 17 In its request for a decision under Article XXIII, Czechoslovakia was asking for a decision on “whether or not US regulations conform to the provisions of Article I.” 18 However, the Proposal for a Working Party 19 to examine the issue did not find support during the discussions among the Contracting Parties 12 Under the passive personality principle authors mean a state’s right to define conduct directed against the welfare of its own citizens, while the protective principle means that a state may regulate conduct that targets its national security. Although the authors acknowledge that the interpretation of these two principles under the WTO is still unclear See MITSUO MATSUSHITA and others, The World Trade Organization: Law, Practice, and Policy (Third edition, Oxford University Press 2015). p. 552. 13 On export controls in GATT see ROM, Michael. ‘Export Controls in GATT’ [1984] Journal of World Trade 125. 14 GATT, ‘Statement by the Head of the Czechoslovak Delegation Mr. Zdenek Augenthaler to Item: 14 of Agenda, GATT, Third Session, 30 May 1949, GATT CP3/33’ . p. 2. 15 Ibid. p. 5. 16 GATT Contracting Parties, ‘Contracting Parties, Third Session, Summary Record of the Twenty-Second Meeting, CP.3/SR22 – II/28, 8 June 1949’ . p. 2. 17 Ibid. p. 3. 18 Ibid. p. 3. 19 The way the Panels were named back then, the members of such Working Parties were representatives of all interested Contracting Parties, including the parties to the dispute.

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