Jul 11, 1988
INTERPRETATION OF GATT SECURITY EXCEPTIONS ADVOCATED.GENEVA, JULY 7 (IFDA/CHAKRAVARTHI RAGHAVAN) -- Proposals for review and revision of the GATT articles relating to security exceptions and waivers from GATT obligations have been discussed at the Uruguay round GATT Negotiating Group on GATT Articles. The group, chaired by John Weekes of Canada, has now completed discussion of a score or more articles that had been suggested for review and negotiation by one or other Contracting Party (CP). The group has to agree next by consensus on which articles or provisions it was prepared to take up for review and negotiations, before changes could be negotiated. The Punta del Este declaration has mandated negotiators to review existing GATT articles, provisions and disciplines as requested by interested Contracting Parties, and, "as appropriate, undertake negotiations". At its meeting last week, the group reportedly discussed a proposal from Nicaragua, supported by Argentina, for review of article XXI of GATT, which provides an exception to the GATT obligations of CPS for protection of their "essential security interests". The article provides blanket exceptions from GATT obligations of CPS in respect of any actions taken by them relating to fissionable materials, traffic in arms, ammunition and implements of war and goods and materials for supplying a military establishment, and actions "taken in times of war or other emergency in international relations". A separate provision deals with actions taken in pursuance of UN charter obligations for maintenance of peace and security (such an UN-mandated trade embargo). During the Malvinas War between Argentina and the U.K., a number of allies including Canada, Australia and New Zealand imposed trade and economic embargoes against Argentina even though they themselves were not in a state of war or hostilities with Argentina. All of them had invoked their rights under article XXI. Subsequently, the U.S. invoked these provisions to impose a total economic and trade embargo against Nicaragua. Nicaragua has suggested to the negotiating group on GATT articles that it should take up this article for review, and interpretative notes should be adopted by the GATT Contracting Parties relating to use of these provisions. Such interpretative notes, Nicaragua has suggested, should provide that article XXI should be invoked "in good faith", and consistent with international law and after failure of bilateral negotiations and appeals to the UN and other appropriate bodies to protect the "essential security interests". The "emergency in international relations", Nicaragua said, should allowed to be invoked only in situations when Contracting Parties (collective GATT membership) consider international peace and security to be threatened and the CP invoking the article had tried to solve the problem by appealing to the UN or other appropriate body dealing with peace and security. Also, Nicaragua suggested, when an industrial CP invoked these provisions against a third world CP, the Contracting Parties should be obliged to recommend compensation to the third world CP whose rights and benefits under GATT would be nullified. The U.S. reportedly noted that article XXI itself had been very rarely invoked. But in security matters GATT should not enter into substantive areas about the "security" questions. India agreed that the article should be taken up for review, and said it had always been its position that any CP invoking the article should establish a nexus between its actions and the actual "emergency in international relations".