CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ THE CZECHOSLOVAKIAN CASE OF 1949 IN THE GATT: LUCK IN MISFORTUNE? and the question was answered by the voting of the Contracting Parties. In its decision the GATT Members modified the original question put by Czechoslovakia by saying that: “the question was not appropriately put because the United States Government had defended its actions under Articles XX and XXI which embodied exceptions to the general rule contained in Article I.” 20 Subsequently, the question was formulated in a broader way asking whether the United States had failed to carry out its obligations under Agreement through its administration of the issue of export licences. 21 This technique fit into description, proposed by R. Hudec stating that wise diplomatic response to a question which does not have a good answer was “to try change the question into one that can be answered.” 22 Be it as it may, the response to the question was not in favour of Czechoslovakia since 17 countries have voted “no” and 3 abstained from voting. 23 The Members of the GATT supported the United States’ position based on their political views rather than legal arguments. Their attitude is reflected in the speech of the Canadian delegate to the GATT L. Couillard: “The fact remains … that in this particular case it was the United States which was under attack and that the political considerations involved were such that no other decision was possible. The vast majority of the Contracting Parties, therefore, gave at least voting support to the United States’ position in spite of weakness of that position in certain respects.” 24 The decision did not prove surprising, given the GATT characteristics from the institutional, dispute settlement system perspectives and its political arrangements at the time. 2. GATT in 1949: Institution, Dispute Settlement Procedure and Political Climate First, the GATT was part of the Havana Charter of the International Trade Organization (ITO) and therefore was not intended to be an international institution. It was rather “a stopgap solution to implement tariff concessions”, as stated by G.Marceau et al. 25 This 20 GATT Contracting Parties (n 16). This phrase allowed some scholars to infer that “Article I MFN is excepted so too would be the other duties” See Bhala (n 6). p. 581 Moreover, the US in its third-party submissions in the case Russia- Goods in Transit (DS512) claims that Article XXI is self-judging, which makes it non-justiciable before the Panel. However, this conclusion is far-reaching since in its statement the Chairman referred to GATT Article XX as well and it is well-established fact that it is not self-judging. See US Trade Representative, ‘Third Party Executive Summary of the United States of America, DS512, Russia-Measures Concerning Traffic in Transit’ . 21 GATT Contracting Parties (n 16). 22 HUDEC, Robert E. ‘GATT Dispute Settlement after the Tokyo Round: An Unfinished Business’ (1980) 13 Cornell International Law Journal 145. p. 167. 23 The rule of positive consensus applied under GATT 1947, which is not the case anymore under current DSU rules. “No” – from Australia, Belgium, Brazil, Canada, Ceylon, Chile, China, Cuba, France, Netherlands, New Zealand, Norway, Pakistan, S. Rhodesia, South Africa, United Kingdom, United States voted against, three countries abstained: India Lebanon Syria, and two were Absent: Burma Luxembourg . The outcome of the case as to the GATT security exception permitted some scholars to claim that this case cannot be seen as a proper legal debate about the scope of Article XXI (b) (ii). JOYNER, Daniel. International Law and the Proliferation of Weapons of Mass Destruction (Oxford University Press 2009). p. 133. 24 Cited in MCKENZIE, Francine. ‘GATT and the Cold War: Accession Debates, Institutional Development, and the Western Alliance, 1947–1959’ (2008) 10 Journal of Cold War Studies 78. p. 90. 25 As is well known, the ITO has never come into force and the GATT existed in a state of provisional application

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