CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ THE CZECHOSLOVAKIAN CASE OF 1949 IN THE GATT: LUCK IN MISFORTUNE? were neutral in their voting against Czechoslovakia. The lack of neutrality in that case, apart from the general structure and the dispute settlement system, could be explained by political climate that set in GATT back then. In 1949 the general political climate of the GATT’s membership was strongly influenced by the Cold War. 36 The American government viewed the GATT as ‘‘an arrow in the Western world’s quiver, much like the Marshall plan.” 37 This makes some scholars conclude that the decision was motivated by political concerns since countries were reluctant to attack the most powerful member of the nascent GATT. 38 Moreover, the relations between the US and Czechoslovakia were already tense due to Czechoslovakia’s blocking an accession of the western Germany to the GATT. 39 The political climate of the GATT had a particular influence over the security exception interpretation. The attitude of the GATT Contracting Parties at the Czechoslovakian case toward the interpretation of the security exception corresponded to the political climate during its negotiations. 40 The possibility of vague interpretation and abuse of the security exception has been noted back then by the Delegate for the Netherlands, Dr. Speekenbrink, who said that “… I find that kind of exception very difficult to understand, and therefore possibly a very big loophole in the whole Charter.” 41 The perception as to the check against abuse was expressed by the Chairman, Mr. E. Colban, who claimed that: “…the spirit in which Members of the Organization would interpret these provisions was the only guarantee against abuse.” 42 While there were no decisions on Article XXI confirming its abusive application, the mere fact of leaving it untouched, gave a possibility for states to interpret it in a way they preferred. In other words, it could be claimed that the Czechoslovakian case introduced an element of chaos and disorder. To this end, the next section will briefly discuss the chaotic nature of handling the security exception by reference to selected cases and the social entropy theory. 36 More on influence of the Cold War see McKenzie (n 24). 37 VOGEL, David. ‘Global Trade Linkages: National Security and Human Security’ in Vinod K Aggarwal and Kristi Govella (eds), Linking Trade and Security , vol 1 (Springer New York 2013) accessed 27 June 2018. 38 ALEXANDROFF, Alan S. and SHARMA, Rajeev. ‘The National Security Provision – GATT Article XXI’ in MACRORY, Patrick F. J., APPLETON, Arthur E. and PLUMMER, Michael G. (eds), The World Trade Organization: Legal, Economic and Political Analysis (Springer US 2005) accessed 14 June 2018. P. 1574. 39 McKenzie (n 24). p. 89. 40 Interestingly enough, national security officials and not trade experts made the ultimate decision regarding the Geneva round when the security exception has been negotiated. THOMAS W ZEILER, ‘GATT Fifty Years Ago: U.S. Trade Policy and Imperial Tariff Preferences’ (1997) 26 Business and Economic History 709. p. 714. 41 Economic and Social Council, ‘Second Session of the Preparatory Committee of the United Nations Conference on Trade and Employment, Verbatim Report of the 33rd Meeting of Commission, Held on Thursday, 24th July, 1947, at 2.30 p m. in the Palais des Nations, Geneva, E/PC/T/A/PV/33’ . p. 19. 42 Economic and Social Council, ‘Second Session of the Preparatory Committee of the United Nations Conference on Trade and Development, Summary Record of the 33rd Meeting of Commission, Held on Thursday, 24th July, 1947, at 2.30 p m. in the Palais des Nations, Geneva, E/PC/T/A/SR/33’ . p. 3.

305