The U.S. submissions in the Russia - Traffic in Transit case are now available here. Here's an excerpt from the third party oral statement:
III. The Text of Article XXI, in its Context, Establishes That the Exception Is Self-Judging
11. Article XXI of the GATT 1994, in relevant part, states that “[n]othing in this Agreement shall be construed . . . to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests . . . taken in time of war or other emergency in international relations[.]”2 On its face, the text establishes two crucial points: first, nothing in the GATT 1994 prevents a Member from taking any action needed to protect an essential security interest; and second, the action necessary for the protection of its essential security interests is that “which it considers necessary for” such protection. That is, a Member has the discretion and responsibility to make the serious determination, with attendant political ramifications, of what is required to protect the security of its nation and citizens.
12. The self-judging nature of Article XXI is established through use of the crucial phrase: “which it considers necessary for the protection of its essential security interests.” The ordinary meaning of “considers” is “regard (someone or something) as having a specified quality” or “believe; think”.3
The “specified quality” for the action is that it is “necessary for” the protection of a Member’s essential security. Thus, reading the clause together, the ordinary meaning of the text indicates it is the Member (“which it”) that must regard (“considers”) an action as having the quality of being necessary.
In its responses to the panel questions, the U.S. cites to some GATT negotiating history. It doesn't appear that they have turned up anything more than I discussed here and here, but nevertheless, I think it's still worth it for others to dig around the archives. I'll be curious to see how the EU and others respond to the U.S. arguments on this point.
One thing I wonder about the U.S. position is whether it promotes a balance that favors U.S. interests going forward. If the exception is "self-judging," and is completely un-reviewable by a panel as soon as it is invoked, other countries could use this, without any sort of domestic process or justification, in complaints filed by the U.S. On the other hand, if there is a good faith requirement under Article XXI, any invocation by the U.S. at least has a chance of complying with any panel review, because the U.S. does have a process for determining whether security is at issue (e.g., Section 232) and its justification will have some basis.
