During a DSB meeting in January 2023, the U.S. indicated that it would be seeking an "authoritative interpretation" of the GATT security exception:
The United States believes that Members need to deepen their collective understanding of this issue that is so critical to all of us. We intend to raise this fundamental issue as part of our discussions on reform of the WTO dispute settlement system. Ultimately, we believe Members need to clarify and adopt a shared understanding of the essential security exception, and we therefore intend to seek an authoritative interpretation of Article XXI of the GATT 1994, pursuant to Article XI of the WTO Agreement.
In April 2023, I tried to press Ambassador Tai about when we would see a formal proposal, but didn't get anything definitive (although she did make a good joke!).
Now it appears that the security exception is one of the holdups to U.S. support for the Agreement on E-Commerce that WTO Members are working on. This is from the U.S. statement on the E-Commerce Agreement text that was released on July 26:
as the United States has repeatedly communicated to the co-conveners and participants, the current text falls short and more work is needed, including with respect to the essential security exception.
The security exception in that text states: "For the purposes of this Agreement, Article XXI of the GATT 1994 and Article XIV bis of the GATS shall apply, mutatis mutandis."
So my question is, with security exceptions getting in the way of progress, are we going to see anything from the U.S. on what its authoritative interpretation of Article XXI (and related exceptions) would look like? Is there one floating around in Geneva that hasn't been leaked yet?
To me, this seems like an area where more U.S. engagement would be helpful. Everyone understands that the U.S. objects to recent WTO panel interpretations of GATT Article XXI, and of course everyone also has a general sense of the interpretation preferred by the U.S. based on its arguments in various WTO disputes and statements at DSB meetings. But it would still be useful to see the precise wording of how the U.S. would want to see Article XXI (and the other WTO security exceptions) interpreted, if it has something in mind here (as it suggested it did). Some specific and clear positions could help everyone evaluate the possibilities for moving the discussion forward on this and related issues.
At this point, I'm not sure what the chances are for achieving a breakthrough on the broader issues in WTO dispute settlement reform. However, it is worth noting that in the context of security exceptions in particular, in the USMCA and various FTAs the U.S. and other governments did agree to what is arguably a broader security exception. But those situations were different in a number of important ways, including fewer countries being involved.
