Non-Violation Claims in the Steel/Aluminum WTO Complaints

 Here are all six WTO consultations requests filed so far against the U.S. Section 232 tariffs on steel and aluminum products: 

U.S. - Measures on Steel and Aluminium (DS552)	June 12, 2018	Norway
U.S. - Measures on Steel and Aluminium (DS551)	June 5, 2018	Mexico
U.S. - Measures on Steel and Aluminium (DS550)	June 1, 2018	Canada
U.S. - Measures on Steel and Aluminium (DS548)	June 1, 2018	EU
U.S. - Measures on Steel and Aluminium (DS547)	May 18, 2018	India
U.S. - Measures on Steel and Aluminium (DS544)	April 5, 2018	China

Only Mexico and India included a non-violation claim under GATT Article XXIII:1(b):

• Mexico: "In addition to, and independently of, the multiple violations of the WTO obligations identified above, Mexico considers that the benefits accruing to Mexico directly and indirectly under the GATT 1994 are being nullified or impaired as a result of the application of the measures identified above within the meaning of Article XXIII:1(b) of the GATT 1994."

• India: "In addition to, and independently of, the multiple violations of the WTO obligations identified above, India considers that benefits accruing to India directly and indirectly under the GATT 1994 are being nullified and impaired as a result of the application of the measures identified above within the meaning of Article XXIII: 1(b) of the GATT 1994."

Recall that in the GATT United States – Trade Measures Affecting Nicaragua case, the United States argued that GATT Article XXI was self-judging:

4.6 The United States said that Article XXI applied to any action which the contracting party taking it considered necessary for the protection of its essential security interest. This provision, by its clear terms, left the validity of the security justification to the exclusive judgement of the contracting party taking the action. The United States could therefore not be found to act in violation of Article XXI. ...

But it also recognized that a non-violation claim was still available: 

4.9 The United States recognized that a measure not conflicting with obligations under the General Agreement could be found to cause nullification and impairment and that an invocation of Article XXI did not prevent recourse to the procedure of Article XXIII. ...

Is this still the U.S. position on the relationship of GATT Article XXI and non-violation claims? Or will it now argue that non-violation claims are precluded?