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Title : Navigating by the stars: interpreting the
WTO Agreements
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Sweet & Maxwell is part of Thomson Reuters. © 2010 Thomson Reuters (Legal)Limited
Journal of International Economic Law
2002
Navigating by the stars: interpreting the WTO Agreements
Michael Lennard
Subject: International trade
Keywords: Dispute resolution; Interpretation; Treaties; World Trade Organisation
Legislation: Vienna Convention on the Law of Treaties 1969
INTRODUCTION
The emergence of the World Trade Organization's more legally oriented dispute resolution systemhas brought with it a greater focus on the discipline of treaty interpretation than was necessary inGeneral Agreement on Tariffs and Trade (GATT) 1947 dispute settlement proceedings. We can nolonger understand how the various WTO agreements are likely to be interpreted by WTO institutionswithout taking our bearings on the relevant international law norms and principles of treatyinterpretation. Conversely, such an understanding allows more confident predictions about how futureissues would be resolved in WTO jurisprudence.On issues of treaty interpretation, developing WTO jurisprudence still has much in common with thefirst voyages of early navigators. Just as those explorers took their bearings by the stars, the WTOinstitutions must look for reliable reference points in the known legal cosmology. This paper seeks toidentify those points of reference for treaty interpretation marked out in WTO jurisprudence, to placethem in their proper international law constellations, and to chart the course of that jurisprudence andits likely landing point.
I. TREATY INTERPRETATION IN THE WTO CONTEXT
A. The basic rules of treaty interpretation
The WTO Panels and the Appellate Body rely on the treaty interpretation rules expressed in theVienna Convention on the Law of Treaties 1 (Vienna Convention) as the basic rules for interpretingWTO instruments. This is because those rules are generally regarded as a codification of the publicinternational law rules of treaty interpretation as a matter of general (or ‘customary’) international law.
They therefore represent the ‘customary rules *J.I.E.L. 18 of interpretation of public international law’which Article 3.2 of the WTO Understanding on Rules and Procedures Governing the Settlement of#p#分頁標(biāo)題#e#
Disputes (Dispute Settlement Understanding) provides that Panels and the Appellate Body are toapply.2
It appears that the form of words (the ‘customary rules of interpretation of public international law’)was used to confirm the place of the rules reflected in the Vienna Convention in WTO jurisprudence,while recognizing that some WTO Members would not be parties to that Convention itself.3
It therefore does not matter, for the purposes of this paper, that many WTO Members (including theUnited States) are not Parties to the Vienna Convention, almost inevitably for reasons other than anyconcerns about the treaty interpretation rules in that Convention.4 Identical treaty interpretation rulesare almost universally regarded, including in WTO jurisprudence, as applying in customaryinternational law anyway, and non-Vienna Convention parties, such as the United States, regularlyargue their WTO and other cases *J.I.E.L. 19 based on the language of the Vienna Convention, inacknowledgment of this reality, and as a shorthand way of referring to the customary international lawof treaty interpretation.The same Vienna Convention rules would apply to an Accession Protocol,5 to any paragraphs of anAccession Working Party Report that are specifically picked up by the Protocol, and to the MemberSchedules which are annexed to an Accession Protocol.6 The terms of an Accession Protocol,including the attached schedules, are the products of a multilateral process and must be read in thatlight, even where they have obvious bilateral antecedents.7
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The relevant provisions of the Vienna Convention are Articles 31 and 32, which read as follows:
Article 31: General rule of interpretation
(1) A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given tothe terms of the treaty in their context and in the light of its object and purpose.
(2) The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text,including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connexion with theconclusion of the treaty;
(b) any instrument which was made by one or more parties in connexion with the conclusion of thetreaty and accepted by the other parties as an instrument related to the treaty.
(3) There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or theapplication of its provisions;
*J.I.E.L. 20 (b) any subsequent practice in the application of the treaty which establishes theagreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
(4) A special meaning shall be given to a term if it is established that the parties so intended.
Article 32: Supplementary means of interpretationRecourse may be had to supplementary means of interpretation, including the preparatory work of thetreaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the#p#分頁標(biāo)題#e#
application of article 31, or to determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.
B. The ‘philosophy’ of the Vienna Convention rulesWhen the text of the Vienna Convention was settled in 1969,8 it was against a background of almost‘doctrinal’ controversy about how treaties should be interpreted. There were three main approaches.9
One approach was the ‘subjective’ or ‘intentions’ approach, using whatever was available to try todetermine the actual intentions of the treaty negotiators. Such an approach places a great deal ofemphasis on the ‘travaux préparatoires’ (or the ‘preparatory work’, as the English text of the ViennaConvention refers to it10 ) of the treaty. The text might be the starting point for interpretation, on thisapproach, but it is only that. This approach has had support from *J.I.E.L. 21 United States experts inparticular11 and from public international law experts as eminent as Sir Hersch Lauterpacht.12
The second approach, the ‘textual’ method, looks to determine the intent of the negotiators throughanalysing what they said in the text, which is presumed to be the final, authentic and most reliableexpression of their intent,13 and only looks beyond the text (to the travaux p#éparatoires, in particular)in limited cases, such as where the text leaves the question unanswered.
A third approach was the ‘teleological’ method, which begins with a broader consideration of theand purpose of a treaty, and then interprets the text in a way viewed as best adapted tofulfilling that object and purpose. This method tends to result in a more ‘dynamic’ reading of a treaty,as an instrument changing over time but more likely to develop a ‘life of its own’ when the object and
purpose of the treaty is construed over time. Such an approach has often been favoured by theEuropean Court of Justice, for example, and has been described as ‘peculiarly appropriate in
Community law where … the Treaties provide mainly a broad programme or design rather than adetailed blueprint’.14
The differing approaches may often yield similar conclusions, but they are also capable of yieldingradically divergent results. For example, the teleological interpretation would be expected to lead to
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more changing interpretations over time than the subjective approach, which is grounded in thesupposed intentions of the actual negotiators, and the textual approach perhaps lies more in themiddle.15
The Vienna Convention, while including some elements of the other methods, is clearly designed as afundamentally ‘textual’ approach; the text is given primacy and is the basic lens through which the‘intention’ of negotiators is objectively discerned. The Vienna Convention rules emphasize that what isbeing sought is essentially the objectively ascertained intention of the parties as manifested in the textof the agreements; the ‘expressed intent’ rather than the ‘subjective intent’, of the parties.16#p#分頁標(biāo)題#e#
*J.I.E.L. 22 This approach was widely seen as the best balance of the requirement, on the one hand,for a stable and coherent platform for international relations and the necessity, on the other, for someflexibility to have recourse to extrinsic materials in limited circumstances.17
Although it is clearly not the case that all the Uruguay Round WTO negotiators went about their workin a full appreciation and specific understanding of this approach to interpretation, that does notinvalidate the primary concentration on a text that would have been the focus of their particularattentions. This is especially true when that text explicitly adopts and reaffirms the customary
international law of treaty interpretation.18
The Vienna Convention rules therefore do not depend for their legitimacy upon those rules beingsubjectively in the mind of the individual WTO negotiators, and their focus on the actual text in factrejects a process of independently examining the subjective motivation and intent of such negotiators.
The Vienna Convention rules are seen as more likely to lead to a single coherent interpretation thanvariant ‘subjective’ interpretations, perhaps initially ‘coloured’ in varied ways and in any case grownmistier and more impressionistic over time. They are seen as more likely to result in an interpretationknowable to wider constituencies than just those who negotiated the treaty. A key point is that newparties to the treaty (particularly developing countries with their generally more limited WTO-specificresources) can analyse it and form judgments on it against the well-understood and documentedtouchstone of customary international law rules of interpretation, rather than being disadvantagedgreatly through not having participated in the original negotiations. The relative certainty of theprimarily textual approach is best adapted to preventing disputes arising, as well as to solving thosethat have arisen.19
C. The WTO approach to Article 31 of the Vienna Convention
The Appellate Body has embraced the essentially textual approach, and it has also recognized the‘holistic’ nature of that interpretative task20 -- acknowledging *J.I.E.L. 23 that even the question ofwhat is the ‘ordinary meaning’ of a term needs to be informed by the context in which that term isused, rather than there being a strictly sequential process of first finding your dictionary meaning21and then sequentially examining the context and object and purpose22 . Sir Ian Sinclair, who activelyparticipated in the Vienna Conference (at which the Vienna Convention was adopted) as a delegate,has noted that the true meaning of a text has to be arrived at by taking into account all theconsequences normally and reasonably flowing from that text.23
For these reasons, a proper application of the Vienna Convention rules need not lead to an overlyrigid and ‘legalistic’ approach to treaty interpretation. It is entirely consistent with the recognition by#p#分頁標(biāo)題#e#
the Appellate Body in Japan -- Alcohol 24 that:WTO rules are reliable, comprehensible and enforceable. WTO rules are not so rigid or so inflexibleas not to leave room for reasoned judgements in confronting the endless and ever-changing ebb andflow of real facts in real cases in the real world. They will serve the multilateral trading system best ifthey are interpreted with that in mind. In that way, we will achieve the ‘security and predictability’sought for the multilateral trading system by the Members of the WTO through the establishment of
the dispute settlement system.
Against this background, it is worthwhile to examine the WTO jurisprudence on each element of theVienna Convention rules, while recognizing that these elements do not represent a number of teststhat must be ticked or crossed robotically in a particular sequence -- they represent, rather, adisciplined and holistic approach to determining the relevance and weight of materials in interpreting atreaty provision, in whatever order the materials are actually considered. Sinclair, for example, seemsto favour first amassing all the necessary materials to put the interpreter into the position to assessthe relative *J.I.E.L. 24 weight and value of those materials, before actually examining that materialin the light of the Vienna Convention rules.25
1. The ordinary meaning of words in their context
The Article 31 rules all relate to the agreement of treaty parties ‘when or after it received authenticexpression in the text’.26 Few would ever have doubted the need to consider words in their context,but an important question is that of how widely ‘context’ is to be understood for Article 31 purposes.27In line with its essentially ‘textual’ approach, the Vienna Convention embodies a relatively narrowinterpretation of ‘context’ to comprise only the rest of the treaty and documents directly connectedwith the conclusion of that treaty.28‘Context’ is defined to mean the text (including the preamble and annexes) as well as agreementsmade by all the parties to a treaty in connection with the conclusion of that treaty, and any instrumentmade by one or more parties in connection with the treaty that was accepted by the other parties asan instrument related to the treaty.
(a) The text of the treaty. As noted by the Panel in US -- Combed Cotton Safeguards, the text of the‘treaty’ referred to in a WTO context is that of the Agreement Establishing the World Trade
Organization (WTO Agreement) itself, of which a particular agreement under consideration is anintegral part. The Panel said, in considering the Agreement on Textiles and Clothing (ATC):29
The treaty in question here is the WTO Agreement, of which the ATC is an integral part. Thus, it is theWTO Agreement in its entirety, including GATT Article III, that provides the context of Article 6 of theATC. As the International Law Commission explained in its commentary to the final set of draft#p#分頁標(biāo)題#e#
*J.I.E.L. 25 articles on the law of treaties, with regard to what became Article 31(1) of the ViennaConvention:‘… the ordinary meaning of a term is not to be determined in the abstract but in the context of thetreaty and in the light of its object and purpose. These principles have repeatedly been affirmed bythe [International] Court [of Justice].
… And the Permanent Court in an early Advisory Opinion stressed that the context is not merely thearticle or section of the treaty in which the term occurs, but the treaty as a whole:“In considering the question before the Court upon the language of the Treaty, it is obvious that the
Treaty must be read as a whole, and that its meaning is not to be determined merely upon particularphrases which, if detached from the context, may be interpreted in more than one sense.”’
In this case, the ‘treaty as a whole’ is the WTO Agreement and all its annexes; it is not just the ATC.
Therefore, we consider that the interpretation on the term ‘directly competitive or substitutableproducts’ under GATT Article III is relevant in interpreting the term ‘directly competitive products’under Article 6 of the ATC. [citations omitted]
It has been noted that the ‘cross-references and interrelationship between all of the WTO Agreementsopens up the possibility of considering them when interpreting a particular agreement’30 and many ofthe approaches adopted by the Appellate Body, and dealt with in this article, are designed andappropriate to test what relevance and weight those aspects should be given in a particular case.
(b) Elements of the context: agreements made in connection. The first type of contextual materialreferred to is ‘any agreement relating to the treaty which was made between all the parties in
connection with the conclusion of the treaty’. In US -- Copyright Act the Panel gave the only reallydeveloped WTO consideration of this aspect of Article 31, when it said:31
It is essential that the agreement or instrument should be related to the treaty. It must be concernedwith the substance of the treaty and clarify certain concepts in the treaty or limit its field of application.
It must equally be drawn up on the occasion of the conclusion of the treaty. [footnotes omitted]
The Panel also expressed the view that: ‘… uncontested interpretations given at a conference’, e.g.,by a chairman of a drafting committee, may constitute an ‘agreement’ forming part of the ‘context’.32
This can be doubted, since such statements would normally precede the settling of the text, ratherthan being an agreement on that settled text, and would generally appear more appropriatelyconsidered as secondary materials under the rules encapsulated in Article 32 of the ViennaConvention, with its more cautious *J.I.E.L. 26 approach to whether such materials fully and
accurately portended the meaning of the completed text.#p#分頁標(biāo)題#e#
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Such statements could nevertheless represent highly relevant and weighty evidence, especially ifmade at the very end of consideration of that text, and in circumstances where there was clearly a
realistic opportunity to object (which may not always exist in multilateral conferences) combined withan expectation that any objecting country would have taken than opportunity to preserve its position.33
(c) Elements of the context: instruments accepted as related. There is a lack of WTO jurisprudenceon what this category of contextual material comprizes, but Sinclair appears to regard some
explanatory reports, certainly where they comment on treaty Articles, as coming within this category.34Any parts of a Working Party Report referred to in a new WTO Member's Accession Protocol,35 may
thus be part of the ‘context’. At least some parts of a Working Party Report will almost inevitably bespecifically incorporated into the text of Accession Protocols, however and, as already noted, thesewill become part of the actual terms of the Accession.
Although it might be debated whether such reports are properly termed ‘instruments’, this seemsintended (especially in proximity to a reference to ‘agreements’) to be a broad term, capable ofcovering material that is not itself binding in international law, and that might be drawn up by one orsome only of the WTO Members, yet is accepted by all (through the General Council) as related tothe Accession Protocol.
Even to the extent that Working Party Reports are not part of the text or ‘context’, they may constitutevery relevant and weighty supplementary means of interpretation under Article 32 of the ViennaConvention, which is considered below.36
Unlike in Article 31(2)(a), there is no reference to ‘all ’ of the parties in Article 31(2)(b). TheInternational Law Commission Commentary on the draft Vienna Convention makes clear that this
difference means only that *J.I.E.L. 27 while not all parties must have shared in the practice, all theparties must have either shared in the practice, or else in the acceptance of it, however. Just as is the
case for Article 31(3)(b) (where there is no reference to ‘all’ of the parties37 ) the parties ‘as a whole’must therefore have either participated in the practice or else have accepted it.38 The reference to ‘all’in Article 31(2)(a) seems to be because in that case all the parties must have positively agreed, ratherthan an acquiescence to that agreement by some of the parties being sufficient39 , further suggestinga quite strict interpretation of what ‘agreement’ means in Article 31.
2. Object and purpose
Article 31(1) of the Vienna Convention provides for an examination of the text and context of a treaty
to be made ‘in the light of its object and purpose’. The Appellate Body in Japan -- Alcohol noted that:
‘the treaty's “object and purpose” is to be referred to in determining the meaning of the “terms of the#p#分頁標(biāo)題#e#
treaty” and not as an independent basis for interpretation’. It was therefore clearly rejecting a
‘teleological’ approach to interpretation.40
In US -- Shrimp, while criticizing the Panel for too quickly jumping to the general object and purpose
of the GATT 1994, and for too broadly construing the object and purpose of the GATT in any case,41
the Appellate Body again emphasized the need to focus on the text at hand.
In that same proceeding, the US argued that:
the Panel had failed to recognize that most treaties have no single, undiluted object and purpose but
rather a variety of different, and possibly conflicting, objects and purposes. This is certainly true of the
WTO Agreement. 42
The Vienna Convention no doubt accommodates multiple objects and purposes, despite the use of
the singular,43 but the task of choosing between relevant objects and purposes can be a difficult one,
and once again (if the text is not kept in mind) it can open the door to a ‘teleological’ approach.
The object and purpose is to be established from the treaty as a whole. This involves examining any
preamble, in particular44 but other related provisions, *J.I.E.L. 28 such as those in the Dispute
Settlement Understanding,45 may also be relevant.
The Appellate Body has sometimes expressed its task as examining the object and purpose of a
particular provision,46 which does not appear strictly accurate under the Vienna Convention rules, but
so long as it is shown that the provision's apparent ‘object and purpose’ reflects one of the objects
and purposes of the relevant WTO Agreement as a whole 47 (and is not, for example, in an apparent
conflict that must be resolved) or that some additional illumination from the broader treaty is not
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thereby ignored, there appear to be no dire practical consequences in the Appellate Body's approach.
It has been commented that the Appellate Body Report in US -- Shrimp: ‘stated that a teleological
interpretation should consider the provision itself being interpreted, not the whole of the WTO
Agreement’.48 Another interpretation of the Appellate Body's approach in US -- Shrimp is possible,
however. This is that an analysis of the text of a provision in its context may reveal an ‘object and
purpose’ of the provision, and (through it) of the wider agreement. Further, an examination of the
wider objects and purpose of the treaty as a whole (such as one expressed in a preamble) may not
add to the initial analysis, particularly when the latter object and purpose is very broadly expressed
and difficult to apply meaningfully to a particular provision.
Such an approach (which was perhaps conditioned by the Appellate Body believing that too broadly
drawn a ‘map’ would give too much freedom to the Panels to, in effect, create their own ‘WTO-lore’) is#p#分頁標(biāo)題#e#
consistent with the Vienna Convention rules. A sequential approach of looking at text and then object
and purpose is often convenient but (as we have seen) not absolutely necessary. The consideration
of different materials is a mental process that need not be done in any particular order, as long as the
priorities and relationships between different types of materials are kept in view.
Although the reference to ‘object and purpose’ in the Vienna Convention rules draws upon elements
of a teleological approach, it is not properly a *J.I.E.L. 29 licence for a ‘teleological’ interpretation,
since the ‘object and purpose’ considered is a measure for testing the ordinary meaning of treaty
terms in their context, a headlight for illuminating and guiding the textual analysis, not a motor for
driving its interpretation. Sinclair's comments on this point deserve to be quoted at length:49
It is also worth stressing that reference to the object and purpose of the treaty is, as it were, a
secondary or ancillary process in the application of the general rule on interpretation. The initial
search is for the ‘ordinary meaning’ to be given to the terms of the treaty in their ‘context’; it is in the
light of the object and purpose of the treaty that the initial and preliminary conclusion must be tested
and either confirmed or modified. … A number of authors consider that the search for the object and
purpose of a treaty is in reality a search for the common intentions of the parties who drew up the
treaty. This approach has certain dangers. In the case of general multilateral conventions, a search
for the common intentions of the parties can be likened to a search for the pot of gold at the end of a
rainbow. Many of the parties will have acceded to the treaty and for that reason alone (because they
have not taken any part in the original framing of the text) must be assumed to have joined not on the
basis of what the original negotiators intended, but rather on the basis of what the text actually says
and means. In addition, a dispute as to treaty interpretation arises only when two or more parties
place differing constructions upon the text; by doing so, they are in reality professing differing
intentions in regard to that text and, of necessity, professing to have had differing intentions from the
very start. If this is the case, there can be no common intentions of the parties aside or apart from the
text they have agreed on. The text is the expression of the intention of the parties; and it is to that
expression of intent that one must first look. [original emphasis, citations omitted]
In a Commentary on the (at that time) draft Vienna Convention, the International Law Commission
similarly considered the reference to the ‘object and purpose’ of the treaty as referring to expressed#p#分頁標(biāo)題#e#
objects and purposes, particularly (but not exclusively) as expressed in the preamble.50
3. Other (non-contextual) materials
Article 31(3) of the Vienna Convention specifically requires that reference be made to certain further
matters, where they exist. These are: (a) subsequent agreements between the parties on
interpretation or application, (b) subsequent practice establishing an agreement on interpretation
between the parties, and (c) relevant rules of international law applicable between the parties.
These matters are not treated as ‘context’ (again showing the limited meaning of that term in the
Vienna Convention) because (in the case of (a) and (b)) they follow the settling of the treaty text, or
because (in the case of (c)) *J.I.E.L. 30 they were regarded as ‘extrinsic to both the text and the
context’.51 They are nevertheless given a high status as materials that must be considered in the
interpretation process. With that background, each subcategory can be considered in more detail.
(a) Subsequent agreements. The International Law Commission, in its Commentary on this provision,
stated that:52
an agreement as to the interpretation of a provision reached after the conclusion of the treaty
represents an authentic interpretation by the parties which must be read into the treaty for purpose of
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its interpretation.
The Panel in Brazil -- Coconut briefly considered this aspect of the Vienna Convention rules.53 It noted
that the Tokyo Round Subsidies and Countervailing Measures (SCM) Code might constitute a
‘subsequent agreement’ amongst Tokyo Round SCM Code signatories for the interpretation of Article
VI of GATT 1947. However, it considered that, as Article II:4 of the WTO Agreement provides that the
GATT 1994 is ‘legally distinct’ from the GATT 1947, and the SCM Code was not a ‘decision of the
CONTRACTING PARTIES to GATT 1947’, the SCM was not a ‘subsequent agreement’ among WTO
Members regarding interpretation of Article VI of GATT 1994.
The Appellate Body would, no doubt, be very cautious in finding that a relevant ‘subsequent
agreement’ had been reached other than through formal WTO procedures for developing an agreed
interpretation.54 Even in other contexts, it is rare that there are subsequent agreements between all
parties bearing upon the interpretation of a multilateral treaty.55 More usually an agreement intended
to have such an effect on a multilateral treaty would formally amend the treaty, even if only to clarify
its terms.
The issue of ‘how a party's obligations are affected by international commitments external to the legal
regime’ has been noted in a recent article as a ‘pressing issue in treaty interpretation in the WTO’.56 I
consider, however, that this interaction is only to a limited extent an issue of treaty interpretation.#p#分頁標(biāo)題#e#
The issue ceases to be properly classified as one of treaty interpretation unless, first, the rather
onerous requirements for the agreement to be a ‘subsequent agreement’ between the parties to the
WTO for the purposes of Article 31(3)(a) of the Vienna Convention are met, or, secondly, the earlier
treaty forms part of the relevant backdrop to the consensus ad idem of the negotiating *J.I.E.L. 31
parties (Article 31(3)(c), considered below57 ) or else, thirdly, a consideration of that earlier treaty
becomes directly necessary to understand or apply a WTO provision, because, for example, of
incorporation by reference.58
In other cases the question becomes, rather, one of how two treaties, each legally distinct, once
interpreted using the normal Vienna Convention rules, may interact with each other legally. In this
respect it is noteworthy that the Vienna Convention Article 30 rules on the relationship of distinct
treaties dealing with the same subject matter59 (which may include treaties to which only some WTO
Members are Party) are dealt with in that Convention under the section headed ‘Application of
Treaties’, rather than, as with Articles 31 and 32, under the section headed ‘Interpretation of Treaties’.
Turning, then, to WTO jurisprudence on Article 31(3)(a) of the Vienna Convention, the Panel in United
States -- Section 211 60 considered that an agreed interpretation adopted at the 1883 Paris
Conference (in order to arrive at final adoption of relevant provisions) may have been a possible
interpretative tool under Article 31(3)(a). The Panel took this view, when considering those aspects of
the Paris Convention incorporated by reference in the WTO Trade-Related Aspects of Intellectual
Property Rights (TRIPs) Agreement.
In fact, if it was an agreement necessary to adopt the final text, it would appear more likely to be part
of the ‘context’ of that treaty under Article 31(2)(a) as an ‘agreement relating to the treaty which was
made between all the parties in connexion with the conclusion of the treaty’.61
There are also issues about whether Vienna Convention rules should be applied to an 1883
Agreement (that is whether modern customary international law rules should be applied in such a
case) although, in respect of a *J.I.E.L. 32 continuing obligation, the Vienna Convention rules have
been applied to some similarly antique treaties in other fora, not without some disagreement.62 The
fact that the Paris Convention has been amended (and picked up by the TRIPs agreement) in modern
times would seem to give extra support for interpreting it in the light of the modern customary
international law of treaty interpretation.
The materials covered by this provision also cover agreements on the ‘application’ of a treaty which,
while not formally being an agreement on interpretation, amount to the same thing.#p#分頁標(biāo)題#e#
(b) Subsequent practice. Requiring subsequent practice (when it establishes the agreement of the
parties relating to a treaty's interpretation) to be considered along with context (rather than in a purely
supplementary fashion) was regarded by some as a ‘striking innovation’ of the Vienna Convention.63
Subsequent practice is given this elevated status, according to the International Law Commission,
because it ‘constitutes objective evidence of the understanding of the parties as to the meaning of the
treaty’.64
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In fact the high status given to such practice in the Vienna Convention may not have been so
innovative; such practice has often been regarded as ‘affording the best and most reliable evidence,
derived from how the treaty has been interpreted in practice, as to what its correct interpretation is’.65
It has long been recognized that consistent practice can be close to conclusive in interpreting a treaty
provision.66
Not every instance of subsequent practice will fall within this category, but even if the practice is not
sufficient to meet these tests, it may be relevant among WTO Members generally as a
‘supplementary means of interpretation’ under Article 3267 or, as between particular disputants, as
possibly *J.I.E.L. 33 contributing to an acquiescence or estoppel, an issue considered further
below.68 In some cases, subsequent practice by Parties to a treaty may constitute a revision of the
treaty, but in such cases, there is an agreed revision, not an agreed interpretation of the original,
unrevised, terms.69
There is only limited WTO jurisprudence on ‘subsequent practice’. The Brazil - Coconut Panel
considered that the Tokyo Round Subsidies and Countervailing Measures (SCM) Code could not be
subsequent practice under GATT 1947, and noted that:
while the practice of Code signatories might be of some interpretive value in establishing their
agreement regarding the interpretation of the Tokyo Round SCM Code (and arguably through Article
XVI:1 of the WTO Agreement in interpreting provisions of that Code that were carried over into the
successor SCM Agreement), it is clearly not relevant to the interpretation of Article VI of GATT 1994
itself; rather, only practice under Article VI of GATT 1947 is legally relevant to the interpretation of
Article VI of GATT 1994.70
The Appellate Body in Japan - Alcohol 71 rejected the view of the Panel in the same case that: ‘panel
reports adopted by the GATT Contracting Parties and the WTO Dispute Settlement Body constitute
subsequent practice in a specific case’, however. While there has been some criticism of this aspect
of the Appellate Body Report,72 the Appellate Body's reasoning is consistent with the fact that adopted
reports only settle in a binding fashion the instant matter between the two parties in dispute, and#p#分頁標(biāo)題#e#
accords with the WTO's lack of a formal system of binding precedent, even though, in practical terms,
prior decisions are not lightly departed from.73
Perhaps the key point is that, even if such adopted reports constituted ‘subsequent practice’, it would
also need to be shown that they ‘establish the agreement of the parties’ on the point of interpretation.
It appears more consistent with current WTO jurisprudence to recognize that Reports may be agreed
to, or at least not objected to, by some Dispute Settlement Body participants as an appropriate
solution to a particular dispute, but without a recognition that they should govern the interpretation on
all the points addressed in future cases for all parties, without the possibility of a point being
re-litigated and argued more fully. Certainly it would be difficult to establish the agreement *J.I.E.L.
34 of the WTO Members on any interpretational points that were not essential to the decision.
A WTO Member may refrain from objecting to the adoption of a Panel decision, for example, without
agreeing to every aspect of the interpretations adopted in reaching the result (indeed, the
interpretative jurisprudence may be in conflict as between different decisions) and that action should
not disentitle it from arguing the point in a future case involving it.
It is possible, of course, that a subsequent practice could develop among WTO Members which
reflects the specifics of a particular decision or a sequence of them, although the difficulty would, as
always, be in showing that the practice ‘establishes the agreement of the parties’ on the point of
interpretation rather than some more pragmatic judgment.
Because of the large number of WTO Parties, there in fact appears to be only limited scope for
evidence of ‘subsequent practice’, since in this context74 the practice is intended to be the practice of
(or acceptance of that practice by) the Parties to the Agreement as a whole. 75
A complete unanimity is not required for an explicit General Council decision on interpretation76 but it
would probably have to be shown for ‘subsequent practice’ to have a similar effect. Although that
unanimity would not necessarily have to occur at a particular meeting, it would have to coalesce into a
uniform practice or acceptance of it, and then persist until at least the time legally relevant to the
dispute.
Meeting these requirements is an almost impossible order within such a large international
organization, especially with only a short history for many of the agreements during which practice
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could develop,77 and with an ever-expanding membership.
Were the requirements less stringent, however, there is a distinct possibility of (and a great legitimacy
in) WTO Members that have not participated in development of the practice claiming that the ground#p#分頁標(biāo)題#e#
is being improperly shifted underneath their feet, inconsistently with the specific provisions for
amending the WTO Agreements, and also with the Vienna Convention rule (again reflecting
customary international law) against two states imposing international law obligations on a ‘third state’
without the third state's *J.I.E.L. 35 consent.78 It has also been noted that there is long GATT
Practice against decisions imposing new obligations on Members.79
The general WTO approach to subsequent practice under Article 31 therefore seems to be an
acceptance of the principle, but with a great deal of caution about finding that its requirements have
been met in a particular case. While there may be practical problems with the provisions for ‘authentic
interpretations’ of the WTO Agreements,80 the Appellate Body's cautious approach to subsequent
practice is an appropriate response at this point in WTO jurisprudence.
(c) Relevant rules of international law. The reference in Article 31(3)(c) of the Vienna Convention to
‘relevant rules of international law applicable in relations between the parties’ has not been closely
tested in WTO jurisprudence,81 and there is little jurisprudence on its meaning in other fora such as
the International Court of Justice.
The Vienna Convention appears to have included such materials as primary materials because they
may reveal the background of the provision under consideration,82 and also because of the rebuttable
presumption at international law that the parties would not intend inconsistency with generally
recognized principles of international law.83 At least the first such reason for this provision would
support including in this category of material covered by it those treaties to which all WTO Members
(not just the participants in a particular dispute) are party,84 especially in view of the great importance
of treaties to modern international law.
That cannot be taken for granted however; as early as 1969 Jacobs raised *J.I.E.L. 36 the question
of whether the provision extends to allow examination of other treaty obligations at all.85 The draft
provision it evolved from referred to ‘general rules of international law’86 which seems not to include
treaty law per se (though it would, of course, cover such general rules merely codified in a treaty), and
there is no indication that the negotiators wanted to change that meaning.
In the trade and environment debate, this aspect of the Vienna Convention rules has often been relied
on in a way that might lead to a more ‘environmental’ reading of the WTO texts. In this respect, I
consider that the role of this rule has sometimes been significantly overstated. Palmeter and
Mavroidis have, for example, considered that the reference to ‘parties’ in this provision means parties#p#分頁標(biāo)題#e#
to a dispute,87 rather than parties to the WTO, so that it would be sufficient that the parties to a
dispute are also parties to the environmental agreement for that agreement to be relevant under this
head, with no need for all WTO Members to meet that criterion.
Marceau, while acknowledging the Palmeter and Mavroidis view on the meaning of ‘parties’,88 and like
them according greater significance to the lack of a reference to ‘all’ the parties than the ILC
Commentary appears to warrant,89 considers a better approach to be that the term ‘parties’ means
‘more generally … a subset of all the parties to the treaty under interpretation, i.e. the specific
countries the relations of which are under examination in light of the treaty at issue’,90 and has
expressed the view that ‘[u]nder certain circumstances, a bilateral agreement might also be
considered under Article 31(3)(c)’.91 She also considers that the reference to ‘any’ relevant rule of
international law ‘seems to provide a wide mandate to examine public international law’ and that it can
be argued that panels and the Appellate Body are obliged to take into account all sources of
international law referred to in Article 38 of the International Court of Justice Statute.92
Despite some difficulties in reading Article 31(3)(c), I consider that such interpretations are, at the
least, strained and that the ‘parties’ referred to are the parties to the WTO Agreement generally, not
the parties to a dispute or some other subset of those whose relationships are being examined. The
term ‘party’ is defined in Article 2(1)(g) of the Vienna Convention, to mean ‘a State which has
consented to be bound by the treaty and for which the treaty *J.I.E.L. 37 is in force’ and that also
clearly applies as the definition when the plural form is used. That parties to the WTO are referred to
in the WTO Agreement as ‘Members’ is not, as Palmeter and Mavroidis suggest,93 significant. The
Members are ‘parties’ in international law to the World Trade Organization Agreement, however styled
formally, and the first words of that Agreement are, in any case: ‘The Parties to this Agreement…’.
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The Vienna Convention consistently uses the term ‘party’ or ‘parties’ in a way that is not confined to
those participating in a dispute, and although there may be issues about the relevant time when a
‘snapshot’ of the parties must be taken, it is clear that a much wider set of countries is being looked at
than merely the disputants. The terms ‘parties to a dispute’ or ‘parties to the dispute’ are used in the
Vienna Convention when referring to a disputant.94
There is a very sound reason for this. The Vienna Convention assumes that each Convention has a#p#分頁標(biāo)題#e#
single, objectively ascertainable interpretation for all parties to it - subject to issues of ‘reservations’,95
which would only be allowed if specifically provided for in a WTO agreement96 and special
agreements notified to the Parties generally,97 neither of which is relevant to this discussion. That is
one reason why an approach based on the subjective interpretations of individual negotiators was
rejected at the Vienna Conference. The interpretation arrived at under the Vienna Convention rules
would be a single interpretation for all WTO Members.
Perhaps most importantly, as Marceau recognizes,98 the Vienna Convention rules apply to govern the
interpretation of a treaty whether or not there is any dispute. If there is no dispute, then this provision
must still be given meaning and effectiveness, and that can only be done by treating ‘parties’ as
meaning the parties to the treaty at a relevant point of time, as a body, whether or not particular
members of that body are disputants on a particular issue at a particular point of time.
The ILC Commentary does not support any narrower meaning for the term ‘parties’ in this case, and,
as already noted, the lack of an explicit mention of all the parties does not imply a lesser number is
being referred to.99 It would appear, though, that acceptance (for example) of the seafaring nations'
practice on a maritime issue by landlocked nations would be sufficient, without the actual participation
of the latter in the practice being necessary.100
*J.I.E.L. 38 While Marceau prefers to read ‘parties’ as meaning ‘more generally … a subset of all the
parties to the treaty under interpretation, i.e. the specific countries the relations of which are under
examination in light of the treaty at issue’,101 it is difficult to see how any subset of WTO Member
relationships is being examined in, for example, an Appellate Body Report, other than the
unsatisfactory subset of disputants (and possibly third party participants).
An examination of the relations of only a limited group of WTO Members would only be appropriate
where that ‘subset’ of international relations is in reality the full set of those contemplated as relevant
in the original treaty, or where the practice of that ‘subset’ is accepted by other WTO Members as
expressing the general state of international law rules (such as because they are the only states with
an interest in the relevant customary international law). The practice in such a case is not a universal
one, but is universally relevant, and therefore it is better not to refer to the ‘parties’ as meaning any
‘subset’ of WTO Members.
The international law backdrop might therefore be relevant to interpretation under Article 31(3)(c) in
so far as it:
• indicates what a wording or concept used by the negotiators meant;#p#分頁標(biāo)題#e#
• illuminates the relevant evolved meaning where an ‘evolutionary meaning’ emerges from an
objective assessment of the original text; or,
• indicates, perhaps, that a reading of the text would be contrary to jus cogens, peremptory binding
norms of international law which could not be derogated from by treaty - but that is not at all likely to
be relevant in the WTO context.102
The international law backdrop would not, however, modify the interpretation of the WTO agreements
for Members generally, merely because of the international law relationships of chance disputants.
We need to ensure that we do not have the same WTO obligations and rights having a different
meaning in the contexts of different WTO Parties, because of their non-WTO relationships. That
would create great uncertainty as to the nature of WTO rights and obligations, and the outcomes in
future disputes, because if Appellate Body decisions are too readily distinguished because of the
non-WTO relationships of the disputants, their (informal) precedential value is inevitably greatly
diminished.
The effects of any external relationships to the WTO are better examined as an issue of, whatever the
substantive WTO rights, whether the other treaty ‘trumps’ the WTO obligations or rights as a matter of
‘conflicts’,103 or whether *J.I.E.L. 39 the full WTO obligations and rights have not been lost, but
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merely cannot be asserted in particular circumstances, an issue considered below.104
The approach I have outlined is not, as has been suggested,105 inconsistent with the examination by
the Appellate Body in US - Shrimp, of multilateral agreements to which not all WTO Members are
party. Where it can genuinely be stated that a provision in a treaty is an ‘evolutionary’ term, the
practice which supports what its current meaning is must be the internationally relevant practice, and
that may not involve all WTO Members. Evidence of an inconsistent meaning among WTO Members
not party to the environmental agreement would nevertheless make it extremely difficult to justify
reliance on the former meaning as one picked up by the WTO Agreement, in a process of
evolutionary development.
The drafters of the Vienna Convention eventually avoided dealing with the vexed issue of
‘intertemporality’ (the question of the time when applicable international law is examined - such as at
the time when the treaty text was settled, or at the time of its interpretation) because it thought
applying a single rule would not adequately deal with the issue of ‘evolutionary’ meanings.106
However, in most cases, where there is no evidence of ‘built in elasticity’, the relevant rule would
seem to be that explicitly expressed in earlier drafts of the Vienna Convention; to the effect that we#p#分頁標(biāo)題#e#
look to the law at the time of conclusion of the treaty.107
It is possible that universally accepted developments in international law since the drafting of a treaty
could be indirectly brought in under the head of ‘subsequent practice’, however, since changes in
international law are often *J.I.E.L. 40 evidenced in part by changed state behaviour or new treaties
reflecting that change.
A common legal backdrop to WTO negotiations may be relevant to the interpretative task even if a
later WTO Member was not subject to the same international rules (it would be taken to accept the
WTO rules as it found them, and would not be taken, by its joining the WTO, to alter the meaning of a
provision from what was negotiated against an objective backdrop of such rules). Conversely, a new
WTO Member should not be affected by later developments between the Uruguay Round negotiators
without some form of acceptance by it that those developments affect its own WTO rights and
obligations.
Palmeter and Mavroidis have seen Articles 3.2 and 7 of the Dispute Settlement Understanding as
incorporating what amounts to the sources of international law listed in Article 38(1) of the Statute of
the International Court of Justice108 into WTO jurisprudence.109
Marceau has noted the risk of treating the Panels and Appellate Body as being ‘court[s] of general
jurisdiction’ able to enforce non-WTO international law obligations,110 and she has expressed the view
that: ‘[w]hile the WTO should ensure that its interpretation and application of WTO rules are
consistent with public international law, permitting it to enforce outside rules by providing remedies for
breach of public international law would threaten to overload the multilateral trading system’.111
It is true that, as argued by Guatemala in Guatemala - Cement: ‘in accordance with Article 38(1) of
the Statute of the International Court of Justice, the sources of international law include, inter alia, the
‘general principles of law recognized by civilized nations’.112 However, I see Article 3.2 of the *J.I.E.L.
41 Dispute Settlement Understanding as more narrowly framed than do the authors just mentioned,
and other sources of international law must fall for consideration under another head.
First of all, it only refers to sources of law bearing upon ‘interpretation’, so that it would not bring in
substantive principles directly - they would only be brought into consideration where the rules of
interpretation do so as a matter of interpretation.
Secondly, among the collection of sources listed in Article 38(1),113 customary international law is only
one, and Article 3.2 only refers to it, rather than to other sources of international law, such as treaties,
or general principles of law, even though in a few limited cases (such as for the Vienna Convention#p#分頁標(biāo)題#e#
itself) a source such as a treaty may codify the customary international law of treaty interpretation.
Therefore, I do not see Article 3.2 of the Dispute Settlement Understanding as a provision ‘bringing in’
international law generally to WTO jurisprudence.
The reference to ‘relevant’ rules of international law ‘applicable’ to the relationship of the parties
seems designed to reflect the fact that the relevance of such rules in a particular case depends on the
objectively ascertained intention of the parties.114 Article 7 of the DSU, in anchoring the Panel's
consideration to the terms of the narrowly defined term ‘covered agreements’, seems to add nothing
to this analysis.115
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The issue of the interaction of international law generally (whatever its source) with the WTO
Agreement texts is beyond the scope of an Article on the customary international law of treaty
interpretation.116 Nevertheless, it is worth noting that despite my conclusion on Article 3.2 of the
Dispute Settlement Understanding, customary international law and certain general principles of law
may nevertheless apply in WTO relationships, as a legal environment into which the WTO
agreements were ‘born’, and which still applies to the extent that it is consistent with the WTO
Agreement117 (or, in the case of jus cogens, even if there is an inconsistency).
This legal environment is relevant to the interpretation and the application of treaties, and for
supplementing them118 although its jurisprudential underpinnings are not entirely clear.119
*J.I.E.L. 42 The Appellate Body in EC - Hormones 120 and in US - Shrimp 121 appeared to assume
that principles of substantive customary international law and certain well accepted general principles
of law (listed as separate sources in Article 38 of the ICJ Statute) rather than merely customary
international law interpretative principles, may play a significant role in determining what the WTO
Agreement rights and obligations mean in a particular case, without giving a clear indication of why
this is so.
In EC - Bananas, the Appellate Body, when ruling on the issue of representation on delegations, also
looked not just to the WTO Agreement, the Dispute Settlement Understanding and the Working
Procedures, but also to ‘customary international law and the prevailing practice of international
tribunals’.122
It might be questioned, on the sort of exclusio unius analysis adopted in WTO and other
jurisprudence,123 whether that possibility is prevented by the specific adoption of the customary
international law rules of interpretation in the Dispute Settlement Understanding, perhaps implying
that the other customary law rules are thereby disapplied.
I do not see that as either a necessary or an appropriate reading - the different treatment can be#p#分頁標(biāo)題#e#
explained by the fact that the customary international law rules of treaty interpretation (as
encapsulated in the Vienna Convention) were more likely to be in the minds of negotiators and to be
addressed, out of an ‘abundance of caution’ but without carrying any negative implication for other
customary international law and general principles of law to the extent that they are consistent with
the text of the WTO Agreement, even though sourced outside the WTO Agreement.124 As Pauwelyn
has noted:
The fact that many negotiators of the WTO treaty (in numerous countries representatives of a trade
ministry de-linked from that of foreign affairs) did not think of public international law when drafting the
WTO treaty is not a valid legal argument. At most, it amounts to an excuse for the WTO treaty not to
have dealt more explicitly with the relationship between WTO rules and other rules of international
law.125
*J.I.E.L. 43 Further, as already noted,126 the reference to the customary international laws of
interpretation in the Dispute Settlement Understanding had the function of recognizing that the Vienna
Convention rules do not apply between all WTO Members as treaty law, but rather as a convenient
codification of customary international law, so that its specific mention can be explained on that basis.
Certainly, the Panel in Korea - Procurement had no difficulty in explicitly rejecting an a contario
argument based upon the limited nature of Article 3.2's reference to customary international law,127
and in applying general rules of customary international law on good faith and error in treaty
negotiations, finding that:128
Customary international law applies generally to the economic relations between the WTO Members.
Such international law applies to the extent that the WTO treaty agreements do not ‘contract out’ from
it. To put it another way, to the extent there is no conflict or inconsistency, or an expression in a
covered WTO agreement that implies differently, we are of the view that the customary rules of
international law apply to the WTO treaties and to the process of treaty formation under the WTO.
This analysis re-directs us to the point made by Jacobs in 1969, and noted above129 that it cannot be
assumed that Article 31(3)(c) of the Vienna Convention allows reference to treaty law. One answer
would be that, with no inherent hierarchy in principle between treaty law and customary international
law130 treaty law applicable between all WTO Members should be relevant to interpretation in the
same way as is customary international law into which the WTO agreements are similarly ‘born’ -
perhaps the law of treaty interpretation itself has some ‘evolutionary quality’. As there is unlikely to be
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such a widely-entered into treaty, and as such treaty material might be relevant under Article 32 in#p#分頁標(biāo)題#e#
many cases anyway, the issue is not a major practical one, however.
Finally on the issue of the ‘general principles of law recognized by civilized nations’, quite apart from
the fact that no modern tribunal would attempt to distinguish ‘civilized’ and ‘uncivilized’ nations,131
considerable caution is needed in respect of such materials, the relevance of which will usually be in
*J.I.E.L. 44 the fields of evidence, procedure and jurisdiction132 . It is not enough that a principle is
common amongst domestic legal systems, it must also be applicable to the relations of states for it to
be a source of international law.133 There is an enormous variety of views on what constitute or do not
constitute such principles, and how they relate to customary international law principles, including
whether a particular principle is part of customary international law or of the general principles of
law.134 Such principles may also lack the same status as customary international law or treaty law,
serving a ‘gap-filling’ role rather than being a basis for stand-alone rights and obligations.135
4. Special meanings
Article 31(4) of the Vienna Convention provides that a special meaning shall be given to a term ‘if it is
established that the parties so intended’. The provision does not indicate exactly how the special
meaning is to be established.136 In fact, this provision was nearly deleted by the International Law
Commission in a late draft of what became the Vienna Convention, on the basis that the so-called
‘special’ meaning would in any case be the ‘ordinary’ meaning in the particular context, in terms of the
Article 31(1) rules.137 The reference to a special meaning therefore does not seem to add much to the
other *J.I.E.L. 45 provisions, probably only emphasizing the burden of proof resting on those
claiming such a meaning.138
An approach which appears consistent with consideration of this issue by Sinclair and McNair would
be as follows:
• First, the status of international law is considered at the time of the conclusion of the WTO
Agreements, to help establish the ‘initial reality’ as to what was objectively intended;
• Secondly, once the initial reality is established, that may indicate a consensus ad idem that some
concepts or touchstones are evolutionary and take their character at least in part from the times -
words such as ‘reasonable’ or ‘appropriate’ are likely examples139 and are in fact common in the WTO
agreements;
• In such a case, to the extent of that licence given, the later position under the general international
law applicable to all WTO parties, not just disputants can be considered. The relevant meaning in a
particular dispute would nevertheless be, of course, the meaning generally applicable to WTO#p#分頁標(biāo)題#e#
Members at the time legally relevant to that dispute;
• Finally, an overriding norm of international law, might ‘trump’ treaty obligations, whatever the original
intent of the parties. It might be doubted whether it would do so as a matter of interpretation (under
Article 31(3)(c)) or as a matter of substantive law, but this is not likely to be an issue of practical
significance in WTO jurisprudence, in any case.140
D. The WTO approach to Article 32 - supplementary means
As is clear from the words of the Vienna Convention, supplementary means, including preparatory
work/travaux préparatoires and the circumstances of conclusion of a treaty, may ultimately be
considered under Article 32 only where an Article 31 examination leaves the meaning of a term
ambiguous or obscure, leads to a manifestly absurd or unreasonable result, or where it is only
considered in order to confirm the Article 31 result. In other words, such means are subsidiary to
Article 31, rather than being alternative or autonomous,141 and cannot be used to contradict a clear
meaning reached from the analysis under Article 31.142
*J.I.E.L. 46 1. What are ‘supplementary means’?
The term ‘supplementary means’ is not exhaustively defined; Article 32 only notes that it includes ‘the
preparatory work of the treaty and the circumstances of its conclusion’. The latter seems to imply that
the term is not simply confined to ‘documents’, and could in principle include, for example, oral
evidence of the negotiations.143
The International Law Commission deliberately avoided defining what constitutes ‘preparatory work’
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under the Vienna Convention, since ‘to do so might only lead to the possible exclusion of relevant
evidence’.144 That indicates a very inclusive approach to what should constitute ‘preparatory work’.
In giving such supplementary means a secondary status, as materials that may be relied on only in
limited circumstances, the Vienna Convention recognizes that such records are often incomplete and
misleading. At the Vienna Conference, Sinclair, representing the UK, eloquently expressed these
concerns when he noted that preparatory work was:
almost invariably confusing, unequal and partial: confusing because it commonly consisted of the
summary records of statements made during the process of negotiation, and early statements on the
positions of delegations might express the intention of the delegation at that stage, but bear no
relation to the ultimate text of the treaty; unequal, because not all delegations spoke on any particular
issue; and partial because it excluded the informal meetings between heads of delegations at which
final compromises were reached and which were often the most significant feature of any
negotiation.145#p#分頁標(biāo)題#e#
As already noted, it is legitimate to look to supplementary means at the very start (rather than near
the end) of the interpretative quest,146 so long as the Vienna Convention rules about the reliance on
such materials are ultimately borne in mind.
*J.I.E.L. 47 2. WTO jurisprudence on supplementary means
There is some relevant WTO jurisprudence on supplementary means. In Canada - Periodicals, the
Appellate Body relied on the negotiating history of the GATT 1947.147 In the US - Anti-dumping Act
(EC Complaint) Panel Report, the Panel considered some documents relating to the negotiation of
the Havana Charter and the GATT,148 while the US - Lamb Safeguards Panel relied on the ‘records of
the Uruguay Round negotiations’ (citing many of the negotiating documents by document number) to
confirm its interpretation.149 The Panel in United States - Measures Treating Exports Restraints as
Subsidies did the same.150
In Korea - Beef, the Panel noted the ‘inclusive’ approach to supplementary means, and summarized
WTO practice, when it said:151
The Panel recalls that in EC - Poultry, the Appellate Body concluded that the bilateral agreement
between the European Communities and Brazil could be examined when interpreting the provisions
of the EC Schedule. In EC - Computer Equipment, reference was made to the practice of one state to
interpret the provision of a Member's schedule. In US - Shrimp, reference was made to treaties not
even ratified by the parties in dispute in order to interpret provisions of Article XX. In addition to the
1989 Panel reports and the GATT Committee on Balance-of-Payments reports, the various bilateral
agreements between Korea and the disputing parties, the ROUs [records of understanding], will thus
be examined, not with a view to ‘enforcing’ the content of these bilateral agreements, but strictly for
the purpose of interpreting an ambiguous *J.I.E.L. 48 WTO provision, i.e. Note 6(e) to Korea's
Schedule. [original emphasis, citations omitted]
In the EC - Computer Equipment Report cited, the Appellate Body had in fact expressed ‘puzzlement’
that the Panel did not consider the Harmonized System of Tariffs and its Explanatory Notes as
supplementary means, since the EC and the US were both parties to the Harmonized System during
the Uruguay Round, and the Appellate Body considered that its nomenclature had clearly influenced
tariff negotiations.152 The Appellate Body was not concerned that the disputing parties had not argued
for such a consideration of the Harmonized System.153 The Appellate Body also indicated surprise
that the Panel did not examine how the EC bound the relevant computer equipment during Tokyo
Round tariff negotiations as part of the ‘circumstances of conclusion’ of the Uruguay Round
agreements. It did recognize, however, the need for consistency of such classification practice if it#p#分頁標(biāo)題#e#
was to be relevant.154
The Appellate Body in EC - Computer Equipment noted that that the circumstances of conclusion of a
treaty ‘permits, in appropriate circumstances, the examination of the historical background against
which the treaty was negotiated’.155
3. Possible relevance of bilateral agreements
Commentators have recognized that a treaty between State A and State B, even if it forms the basis
of State A's treaty with State C, does not for that reason alone form part of the travaux préparatoires
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of the later treaty.156 It is possible that the treaty may sometimes be taken into account in interpreting
that later treaty where the third State was aware of it, however.157 If that occurred, it should only be in
extremely rare cases, because of the Vienna Convention rule against two states binding a third state
without its consent.158
Similarly, a bilateral treaty may be ‘picked up’ as part of the travaux of a multilateral treaty. For this
reason it is likely that the Appellate Body would be willing to look, for example, to the US - China
bilateral agreement that preceded Chinese Accession to interpret aspects of the Chinese Accession
Protocol based on it. It could be accorded this status as a document circulated within, and relied on
by, the China Working Party in drafting the Protocol.
*J.I.E.L. 49 4. Can preparatory work be relied on against members not participating in
the original negotiations?
The relevance of travaux has sometimes been denied on the basis that the countries before the court
were not parties to the negotiations of the treaty (that is, they joined later)159 but many have
questioned whether this reflects current customary international law of treaty interpretation, at least
when the travaux are published, or are otherwise accessible to parties prior to accession160 . The
International Court of Justice has in one case referred to the travaux of a treaty without mentioning
that neither State before the court had participated in the negotiations161 and a similar approach has
been taken in some other international fora.162
Although the Appellate Body would be extremely unlikely to find that only those participating in
drafting a treaty could rely on travaux (which would, for example, raise difficult issues in an accession
process, arguably confining their relevance to those Members represented on the Working Party,
although the final ‘stamp of approval’ to accession is a more general one) a Member later joining the
WTO could marshal powerful arguments against the relevance of a document that was not available
to it at least upon joining, and arguably even just before joining, the WTO.
Such a general approach would be at the very least consistent with the legal underpinnings of a
recent Appellate Body comment in US - Combed Cotton Safeguards that:#p#分頁標(biāo)題#e#
if a Member that has exercized due diligence in complying with its obligations of investigation,
evaluation and explanation, were held responsible before a panel for what it could not have known at
the time it made its determination, this would undermine the right afforded to importing Members
under Article 6 to take transitional safeguard action when the determination demonstrates the
fulfilment of the specific conditions provided for in this Article.163
Therefore, any documents that were only available to, for example, the China Accession Working
Party participants (such as a room document not given a *J.I.E.L. 50 formal WTO number) could
almost certainly not be invoked against new WTO Members, apart from the acceding countries
represented in the Working Party proceedings.
In principle, then, if a new WTO Member did not have sufficient access to documents on, for example,
the Chinese Accession during its own accession process, they should not be relied on in disputes
between it and China, although if it was given access to them after accession but before the dispute
arises, the Appellate Body would probably allow the materials to be considered on the basis that such
knowledge would clearly not have prevented the country joining the WTO (since it did not cause it to
leave the WTO Membership when known), and therefore the country would not be prejudiced
ultimately by recourse to such materials.
The US - Lamb Safeguards Panel, in referring to certain ‘records of the Uruguay Round negotiations’
by document number164 did not address the question of the need or otherwise for accessibility of such
documents.
That dispute involved Original Members of the WTO, all of which participated actively in the Uruguay
Round negotiations. Those parties would therefore be less likely to raise the issue of accessibility of
records. Even though that is not a very satisfactory answer to the issue (since there should be a
single rule for whether general WTO documents can be relied on, to ensure a consistent
interpretation for all WTO Members) the documents cited by the Panel currently appear to be readily
accessible through the ‘Documents On-Line’ facility at the WTO website.165
Jackson has noted the small participation in some of the key Uruguay Round meetings,166 and it is
understood that there are many documents held by the WTO Secretariat which record some of the
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proposals and developments in the crucial late stages of the Uruguay Round negotiations, not always
identifying the proposer. It is likely that the WTO Secretariat relies on these to some extent, to fill gaps
and guide itself (just as Original Members would look to their own internal records and unilateral
‘talk-notes’ of treaty negotiations) but at least until they are made public, according such documents
any weight or relevance in the interpretative process is extremely difficult to justify under the#p#分頁標(biāo)題#e#
interpretative rules of the Vienna Convention.
Evidence of proceedings not even captured in documentary form is likely to be regarded with even
more suspicion, even though, as noted above,167 the Vienna Convention rules do not appear to rule
out recourse to the oral evidence of negotiators as supplementary means. Possibly, unpublished
*J.I.E.L. 51 documentary material could serve to ‘refresh’ the memory of such witnesses who would,
by their evidence, themselves help explain publicly available material, but there is likely to be little
enthusiasm for allowing oral evidence which, had it been written down contemporaneously, would be
excluded as not publicly available. Unilateral preparatory work would seem not to be relevant,
although if passed to the other party or parties during negotiations it might have some interpretational
relevance,168 more likely in bilateral than in multilateral negotiations.
The Appellate Body's reliance (in US - Shrimp ) on the 1946 negotiating history of the International
Trade Organization (ITO) and the Havana Charter169 is problematical. While the negotiating history
would be available to researchers in Geneva, for example, and would be held by some governments,
and in a small number of libraries on microfiche, and while the documents cited170 are numbered
negotiating documents, they are not available on the WTO website or in any other readily
accessible171 form such as would readily justify reliance on them with respect to a new Member. In the
interests of uniform interpretation they should probably not then be relied on with respect to any
Member.
The Appellate Body in US - Shrimp nevertheless saw consideration of the 1946 negotiating history as
relevant to confirm (in accordance with Article 32 of the Vienna Convention) an interpretation of the
chapeau of GATT Article XX that it said it had already reached under Article 31 of the Vienna
Convention.172 The Appellate Body did not address the issue of the public availability of travaux at all,
and its Report therefore needs to be treated with caution on this point, especially since a
consideration of the materials was not essential to the decision.
ITO negotiating documents had been relied on by the US in one of the last GATT 1947 cases.173 They
were also relied on extensively in Canada's arguments in an earlier GATT 1947 case,174 and the
Panel in that case seems *J.I.E.L. 52 to have relied on the negotiating history, though without
discussing its relevance or weight.175
The approach taken by the Panel in United States - Section 211 Omnibus Appropriations Act of 1998
176 was problematic in another respect. The substantive provisions of the Paris Convention on
protection of industrial property are incorporated into the WTO Agreement on Trade-Related Aspects
of Intellectual Property Rights (TRIPS Agreement) by Article 2.1 of the latter agreement. When the#p#分頁標(biāo)題#e#
issue of the meaning of those incorporated terms became relevant, the Panel, as it notes in its
Report:177
… sent a letter to the International Bureau of the World Intellectual Property Organization (WIPO),
which is responsible for the administration of the Paris Convention. […] In that letter, the Panel
requested factual information, consistent with Article 13 of the DSU, on the Provisions of the
Stockholm Act of 1967 of that Convention (Paris Convention (1967), incorporated into the TRIPS
Agreement by its Article 2.1, that are relevant to the matter. It also expressed its interest in obtaining
factual information on the way the determination of the owner of a trademark may have been
addressed in the negotiating history of the Convention or in subsequent developments. The
International Bureau of WIPO provided such information in a letter dated 2 March 2001.
The WTO Panel Report contains a summary of a note attached to the WIPO letter, but omits certain
references to supporting documentation provided in that note.178 By treating the Paris Convention
negotiating history provided by WIPO as stand-alone ‘factual information’ the Panel in effect avoided
considering in any detail the legal relevance of the original material to interpreting the TRIPS
provision.
This aspect of the Panel Report perhaps demonstrates vestiges of an ‘historical’ rather than
‘text-based’ approach such as Kuyper had referred to, when writing in 1994 of the GATT 1947
jurisprudence:179
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Panels continue to show an unhealthy preference for the historical background of GATT articles as
the first means of interpretation. This is obviously contrary to Articles 31 and 32 of the Vienna
Convention on the Law of Treaties … the tendency remains to regard the historical method at least as
being at the same level as other means of interpretation and not as the secondary means it ought to
be.
The TRIPS negotiators might objectively be taken to have picked up the specific Paris Convention
obligations ‘warts and all’ and with any legitimate *J.I.E.L. 53 ‘evolutionary meanings’ that would
accrue in the future,180 to minimize the risk of a separate development as between the instrument
itself and its incorporated provisions in TRIPS.
That does not mean, however, that every negotiating record, much less every summation of such
records by a treaty secretariat, should be considered and treated as authoritative during the
interpretation of a WTO provision, for the same reason that not every purported record of WTO
negotiations may have relevance and weight in interpreting a WTO provision. It may not be
sufficiently clear that such a record reflects or illuminates the objectively ascertained intent of those
negotiating the TRIPS.
The Vienna Convention rules are cited by the Panel in support of reliance upon the WIPO#p#分頁標(biāo)題#e#
secretariat-provided ‘historical record’ to confirm an interpretation otherwise reached,181 but the
Vienna Convention rules are in fact subverted by the Panel's approach, because the Panel did not
link their conclusions back to particular identifiable and accessible primary documents, or otherwise
address why this ‘historical record’ can and should be taken into account in interpreting WTO
obligations.
The accessibility of such materials, to TRIPS Members who are not Paris Convention Parties, as well
as those that are Paris Convention Parties, seems a prerequisite to its consideration on any
interpretational point, but there is no evidence of such consideration in the Panel Report, and the
removal of the cross references to primary documents in the Panel's summary of the WIPO note
merely emphasizes that stance on the Panel's part.
The objectively ascertained intent of the WTO negotiators is the hub of any interpretation of the TRIPs
provision, and while the spokes of such an approach radiate outward to encompass the Paris
Convention text, presumably including such evolutionary meanings as develop over time, there are
difficult issues about to what extent that can be regarded as conditioned by the Paris Convention
negotiating record, quite apart from a WIPO summation of that record. Any such summation needs to
be objectively testable, against the documents referred to and the rest of the documentary record.
In any case, the Appellate Body considered some aspects of the Panel approach in its Report and
concluded that the ‘negotiating history’ was not decisive of the issue, and that the Panel's
interpretation of the relevant provision was, in any case, contrary to ‘the ordinary meaning of the
terms of those provisions and is, therefore, not in accordance with the customary rules of
interpretation prescribed in Article 31 of the Vienna Convention’. *J.I.E.L. 54 Unfortunately, it did not
address the nature of the ‘historical record’ relied on by the Panel, and which may have somewhat
blinded that Panel to the Vienna Convention ‘textual’ approach.182
E. Texts in different languages
The WTO Agreement provides in its final clauses that all the original language texts of the Agreement
(English, French and Spanish) are ‘authentic’. That ‘authenticity’ extends to annexed Agreements.
The Appellate Body has construed the reference to the three texts being ‘authentic’ in the final
clauses of the WTO Agreement as meaning they are ‘equally ’ authentic, drawing upon the language
of Article 33 of the Vienna Convention, and explicitly referring to that provision.183
The ‘gloss’ of the Appellate Body therefore treats the Vienna Convention Article 33 rule that different
language texts are ‘equally authoritative’ as applying, rather than as having been displaced by the#p#分頁標(biāo)題#e#
language of the WTO Agreement. While that ‘gloss’ may make it more difficult to argue that a text first
negotiated in one language (such as English for many accession documents) should be regarded as
more authentic or more authoritative in that language, in the event of a conflict, it may not completely
rule out such an approach.
In this respect, the ILC Commentary on Article 33 indicates that the ILC decided against codifying
rules favouring (on the one hand) the clearer of the texts, or (on the other hand) the drafting text, for
example, because which interpretation should prevail would depend on the circumstances.184 Sinclair
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appears to regard it as ‘not unreasonable’ to give preference to the negotiation text of the UN Charter
over the ‘equally authentic’ translations, and notes that the ICJ seems to prefer the texts in the
language(s) of negotiation.185 The *J.I.E.L. 55 majority in the 1980 Young Loan Arbitration,
disagreed, however.186 It should be remembered, however, that the original draft of a treaty
negotiated with simultaneous translation would not seem to obviously ‘belong’ to any particular
language.
F. Maxims and principles not expressly mentioned in the Vienna Convention - ‘good
faith’ aspects of interpretation
WTO Panels and the Appellate Body have relied on several interpretative ‘maxims’ or ‘principles’ in
interpreting WTO obligations. These are not explicitly referred to in the Vienna Convention, but they
have been treated in WTO fora as emerging naturally from the expressed principles in the Vienna
Convention. In particular, they are often seen as deriving from the requirement to interpret treaties in
‘good faith’187 (which represents a specific interpretative principle) and the substantive customary
international law obligation, separately reflected in the Vienna Convention, that ‘every treaty in force is
binding upon the parties to it and must be performed by them in good faith’188 .
1. ‘Expressio unius es exclusio alterius’
One maxim sometimes referred to in international jurisprudence (and extensively referred to in
domestic law statutory interpretation)189 is ‘expressio unius es exclusio alterius’. This means that
because of the relationship of two or more objects or ideas, the explicit indication that a certain
situation exists or certain rules apply for one of the objects or ideas implies that the same situation
does not exist, or the same rules do not apply, for the other objects or ideas. The maxim recognizes
the eloquence of silence in such cases. McNair said of this maxim:190
[t]hat there is a substantial element of truth in this maxim is obvious. It would find a place in the logic
of the nursery. If I agree that my brother may play with my railway engine and my motor car, it is#p#分頁標(biāo)題#e#
obvious that I have not given him permission to play with my model aeroplane.
*J.I.E.L. 56 The principle has advanced beyond the nursery to be followed in a number of
international treaty cases,191 and it might be considered as part of the general ‘good faith principle of
interpretation’ extensively relied on by the Appellate Body, or as naturally flowing from reading the
ordinary meaning of words in their context, since it merely recognizes the ways in which words are
ordinarily used to express difference and similarity.
The principle no doubt has greater logical force for provisions that would have been considered at the
same time, such as those in the same Article, since the omission would (objectively speaking) have
been most apparent to drafters expressing the consensus ad idem, and the omission itself would
more likely have an interpretative significance.
It would usually have less significance where the provisions under examination are spread across
different agreements or were negotiated over different times such that they might not have been
considered (again, looking at the matter objectively, rather than considering the subjective
understandings of particular participants) by the same negotiators as textually related.
Because ‘factors other than a deliberate intention to make different provision could explain the
variations’, domestic courts tend to treat this maxim with caution.192 Some similar caution is perhaps
apparent in the refusal of the Panel in US - Line Pipe to draw ‘any conclusions from the fact that
certain Article XIII provisions are not replicated in the Safeguards Agreement’.193
The principle has been applied, without using its Latin title, by the Panel in US - Foreign Sales
Corporations. 194 It was argued by the US in US - Countervailing Duties on Lead and Steel, 195 but not
ruled upon.
2. Presumption of consistency
There is a presumption (perhaps a corollary to expressio unius es exclusio alterius ) that terms are
generally used consistently in a treaty, so that different *J.I.E.L. 57 terms are intended to have
different meanings. The Appellate Body in EC - Hormones, (citing its own Report in US - Underwear )
said:196
The implication arises that the choice and use of different words in different places in the SPS
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Agreement are deliberate, and that the different words are designed to convey different meanings. A
treaty interpreter is not entitled to assume that such usage was merely inadvertent on the part of the
Members who negotiated and wrote that Agreement.
There has also been reliance upon a presumption against there being a conflict between treaty
provisions in the same agreement or, in certain circumstances, between different treaties involving
the same parties197 and this is probably an expression of the same underlying principle.#p#分頁標(biāo)題#e#
Marceau has relied on what seems to be a broader presumption against a conflict between different
treaties.198 Any presumption that involves comparing different treaties could only be a very weak one
where there are different memberships of the two treaties, however, because otherwise third party
treaty rights are being affected by treaties they are not party to, contrary to the Vienna Convention
itself.199 The fact that the Vienna Convention provides for how to deal with conflicts between treaties
with the same membership, demonstrates that even in such a case any such presumption will not
always assist. The same Vienna Convention rules also suggest that in cases with differing
memberships, the common party is required to fully comply with both treaties and can only save itself
from being in breach by showing that part of the consensus ad idem for one of the treaties was that it
yields to a conflicting treaty of the type under consideration, or by withdrawing from one of the
treaties.
As with expressio unius, any such presumptions would be weaker the less closely related the
provisions are, in terms of negotiating history and textual relationship, and in both cases, the often
frenetic late drafting of treaties as complex as the WTO agreements no doubt means that any such
presumptions are weaker than in the more ‘finessed’ drafting of a domestic statute, at least as to
provisions emerging in the final stages of negotiations.
*J.I.E.L. 58 3. ‘Effectiveness’
The International Law Commission regarded the good faith principle (in combination with the
reference to the treaty's object and purpose) embodied in Article 31 of the Vienna Convention as
potentially encapsulating the principle of ‘effectiveness’ (ut res magis valeat quam pereat ).200 It noted
that:201
When a treaty is open to two interpretations one of which does and the other does not enable the
treaty to have appropriate effects, good faith and the objects and purposes of the treaty demand that
the former interpretation should be adopted.
The principle has been relied on by the International Court of Justice202 and is well supported by
international law commentators.203
In the WTO context, the Canada - Patents Panel noted that:
The principle of effective interpretation or ‘l'effet utile ’ or in Latin ut res magis valeat quam pereat
reflects the general rule of interpretation which requires that a treaty be interpreted to give meaning
and effect to all the terms of the treaty. For instance, one provision should not be given an
interpretation that will result in nullifying the effect of another provision of the same treaty [footnotes
omitted].204
In US - Gasoline the Appellate Body had earlier expressed the view that ‘[a]n interpreter is not free to
adopt a reading that would result in reducing whole clauses or paragraphs of a treaty to redundancy#p#分頁標(biāo)題#e#
or inutility’.205 The Panel in Indonesia - Auto correctly regarded this as an expression of the
effectiveness principle,206 and by the time of that Panel Report, the Principle had been more clearly
stated by the Appellate Body in Japan - Alcohol as a ‘fundamental principle’ of treaty interpretation.207
*J.I.E.L. 59 In Argentina - Safeguard Measures on Footwear 208 and Korea - Dairy, 209 the Appellate
Body confirmed the general relevance of the effectiveness principle in the WTO context.210 The
Appellate Body expressed the principle in Korea - Dairy as follows:211
In light of the interpretative principle of effectiveness, it is the duty of any treaty interpreter to ‘read all
applicable provisions of a treaty in a way that gives meaning to all of them, harmoniously’. [original
emphasis]
This ‘gloss’ on the principle expresses it over-ambitiously, as compared to the International Law
Commission formulation noted above, since it does not recognize the possibility that disharmony
between treaty provisions may exist inherently, however meticulous the interpretative approach. To
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seek to render the inharmonious harmonious may itself sometimes depart from the consensus ad
idem as expressed in the relevant text.
As indicated above in respect of expressio unius, the often frenetic late drafting of treaties as complex
as the WTO Agreements will often mean that caution should closely attend reliance on this maxim. It
has been noted that the absence of a full measure of effectiveness may be the direct result of the
inability of the parties to reach agreement on fully effective provisions, and the treaty should not be in
effect revised to make good the parties' omissions.212
That caution would apply with special force to many multilateral treaties, where differences are more
likely to have been ‘papered over’ for the sake of the package as a whole, especially with so large a
body of negotiators as participated in the Uruguay Round negotiations. It is quite common for such
treaties to have provisions that do not add anything textually; their meaning may lie more in the
‘politics’ or history of the negotiations than in any additional idea they add to the final text. As noted
above, the reference to special meanings in Article 31 of the Vienna Convention may itself fall into
that category, despite (and in many respects because of) the long drafting history of that provision
and Convention.213
*J.I.E.L. 60 Ultimately, the goal of ‘effectiveness’ is one to be sought, but one which will have to be
treated with some caution in WTO jurisprudence for an additional reason; if the principle is given too
large a scope it can amount to a broad teleological approach, reading things into the treaty that lend
an air of neatness and regularity in pursuit of a perceived object and purpose, but do not flow from its#p#分頁標(biāo)題#e#
terms and do not represent a good faith, fundamentally textual, interpretation.214
That could mean giving the treaty a ‘life of its own’ guided neither by the subjective intent of
negotiators nor the ‘expressed intent’ of the text. Such a degree of flexibility would appear contrary to
the provisions of the Dispute Settlement Understanding, including the stricture that: ‘in their findings
and recommendations, the panel and Appellate Body cannot add to or diminish the rights and
obligations provided in the covered agreements’.215
The Appellate Body has itself noted that:216
Given the explicit aim of dispute settlement that permeates the DSU, we do not consider that Article
3.2 of the Dispute Settlement Understanding is meant to encourage either panels or the Appellate
Body to ‘make law’ by clarifying existing provisions of the WTO Agreement outside the context of
resolving a particular dispute.
The balance of the WTO institutions, at least at this stage of its development, leaves less flexibility to
the Appellate Body to develop the law than does the balance of the European Union institutions. That
this more limited flexibility was deliberate on the WTO negotiators' part is apparent even from a brief
comparison of the Appellate Body and European Court of Justice constituent instruments and
powers.217
The decisions over the longer period of European Court of Justice jurisprudence often show a
confidence and a willingness to take an activist approach (often to deal with an impasse at the EU
political level)218 and this jurisprudence only demonstrates the difference between the ECJ's broad
‘constitution’ and the more narrowly confined one of the Appellate Body. In giving *J.I.E.L. 61 less
flexibility to the Appellate Body, however, many of the criticisms levelled at the ECJ, to the effect that
it is not always a neutral arbiter,219 have been largely avoided at the WTO level.
Davey has considered the question of whether the WTO dispute settlement system has exceeded its
‘authority’.220 In general, he concluded that it did not appear to have overreached its authority in terms
of ‘failing to accord sufficient deference to legitimate policy decisions made by WTO Member
governments or … by ruling on cases or issues where they should have used traditional judicial
doctrines to avoid rulings’.221
The well established international law interpretative approaches relied on have helped achieve this,
and have assisted in marking out a similar journey for the Panels, a journey steering between, on the
one hand, the Scylla of an approach purely directed towards solving an instant dispute without
reference to the ‘longer-term systemic goals such as predictability and stability of interpretations of
treaty text’222 and, on the other hand, the Charybdis of law-making for the future in a way which may#p#分頁標(biāo)題#e#
lead to results in an instant case that are unacceptable to the WTO constituency and reduce
confidence in the system.
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The reliance upon established ‘maxims’ of international law adds an extra shine of neutrality and
predictability to the Appellate Body and Panel jurisprudence, even though the selection of those
maxims, and how they are used, gives some room to move at the fringes.
The Appellate Body's recognition of an ‘evolutionary’ aspect to some terms in the WTO Agreements223
leaves open the question of whether it will read its own ‘constitution’ as allowing for some evolutionary
changes to the role of the Appellate Body itself, especially where the practice of WTO Members may
support such an evolution. There is clearly less room for such an evolution in function than there was
for GATT Panels under the broader GATT 1947 provisions,224 but there is, in return, greater
predictability, as the balance has been struck more deliberately in the more detailed Uruguay Round
dispute resolution provisions.
4. ‘In dubio mitius’
(a) WTO reliance on the principle. The Appellate Body acknowledged in EC - Hormones that the
customary principle of interpretation of international law *J.I.E.L. 62 known as in dubio mitius may be
applicable in WTO disputes.225 The Appellate Body said ‘[w]e cannot lightly assume that sovereign
states intended to impose upon themselves the more onerous, rather than the less burdensome,
obligation …’. It noted that:226
The interpretative principle of in dubio mitius, widely recognized in international law as a
‘supplementary means of interpretation’, has been expressed in the following terms:
‘The principle of in dubio mitius applies in interpreting treaties, in deference to the sovereignty of
states. If the meaning of a term is ambiguous, that meaning is to be preferred which is less onerous to
the party assuming an obligation, or which interferes less with the territorial and personal supremacy
of a party, or involves less general restrictions upon the parties.’
(b) A dubious reliance? The Appellate Body did not, however, address the authors' (of Oppenheim's
International Law ) caveat, expressed in the next sentence of the quoted text, that ‘in applying this
principle regard must be had to the fact that the assumption of obligations constitutes the primary
purpose of the treaty and that, in general, the parties must be presumed to have intended the treaty to
be effective’.227 This caution highlights the distinct possibility of a clash with the ‘effectiveness’
principle.
The authors of Oppenheim further noted that certain European Union courts appear to have refrained
from applying the in dubio mitius interpretative approach, since an impact on countries' rights is seen#p#分頁標(biāo)題#e#
as integral to the EU countries' accepted obligations under the relevant treaty.228 In a separate
footnote, the authors recognized that a provision enlarging the rights of one party restricts the rights of
the other, and noted ‘the at times, questionable usefulness of the rules of interpretation’.229
The Appellate Body followed Oppenheim in relying on the International Court of Justice Nuclear Tests
Case judgment in support of the in dubio mitius principle.230 The International Court of Justice
comment in that case was that: ‘when States make statements by which their freedom of action is to
be limited, a restrictive interpretation is called for’.231 While the authors of *J.I.E.L. 63 Oppenheim say
it reflects the same principle as in dubio mitius, they acknowledge that it relates to unilateral
statements by a country, not international agreements.232
In truth, the situation of interpreting a unilateral statement made by one country under no obligation to
bind itself is far different from that of examining a multilateral agreement that will involve complex
trade-offs of the freedom to move (or ‘sovereignty’) on all sides. Reliance on the Nuclear Tests Case
perhaps only emphasizes the lack of good modern authority for any principle of in dubio mitius.
Harris has noted the possible conflict of the in dubio mitius ‘rule’ with the principle of ‘effectiveness’
and has described the former as ‘a somewhat questionable principle’.233 Lord McNair, as long ago as
1961, expressed the view that it was of declining importance and dated ‘from an age in which treaties
were interpreted not by legal tribunals, and not even much by lawyers but by statesmen and
diplomats’.234
This insight of McNair may be particularly relevant in understanding the Appellate Body's resort to in
dubio mitius, since the WTO Panels and Member representatives in Dispute Settlement Body
meetings, important ‘constituencies’ of the Appellate Body, generally do not share the same legal
backgrounds as those on the Appellate Body, particularly in the area of public international law.
Page21
McNair was another to note that to reduce the obligation of one sovereign State through such an
interpretative approach reduces the benefit to the other party, also a sovereign State - ‘which seems
to me absurd’.235 Bernhardt also notes that in dubio mitius and other interpretative rules oriented to
the sovereignty of States ‘still find some support, especially in learned writings, but they can no longer
be considered as primary rules for treaty interpretation …. [T]he often invoked rule that treaties should
be interpreted restrictively and in favour of State sovereignty can no longer be considered valid’.236
(c) The complexities of the ‘sovereignty’ argument. In the WTO context, Jackson has recently referred#p#分頁標(biāo)題#e#
to the perceived need to ‘preserve national or nationstate sovereignty’ as one of seven WTO
‘mantras’: ‘catch phrases that sound reassuring, but are almost never thought through’.237 He notes
that ‘it is not a binary question; it is not a question of all or nothing’ and that the real policy question
involved is how power is to be allocated.238
*J.I.E.L. 64 When viewed in this light, looking to the ‘power-effects’ of a particular interpretation of a
particular provision in isolation appears as likely to defeat as it is to uphold ‘real world intentions’ of
negotiators, even if that was a realistic and appropriate touchstone.
The more ‘holistic’ approach of a primarily textual Vienna Convention analysis better reflects the
allocation of power and responsibilities in a treaty, as well as the power of words and the power (as a
force for international stability) of the ability to rely on words objectively expressing promises made in
international relations. Such an analysis can accommodate the ‘objects and purposes’ of the WTO
Agreements, including those in-built design features of the WTO Agreements reflecting an intent to
prevent excessive intrusion on national ‘sovereignty’ (such as Articles 3.2 and 19.2 of the Dispute
Settlement Understanding).239
The Appellate Body might readily have adopted an approach which looked at the balance of
obligations in a more sophisticated and modern fashion than the in dubio mitius principle can ever do.
Indeed, the Appellate Body sometimes does so - as it acknowledged in its Report on Japan - Alcohol
:240
[t]he WTO Agreement is a treaty - the international equivalent of a contract. It is self-evident that in an
exercise of their sovereignty, and in pursuit of their own respective national interests, the Members of
the WTO have made a bargain. In exchange for the benefits they expect to derive as Members of the
WTO, they have agreed to exercise their sovereignty according to the commitments they have made
in the WTO Agreement. [original emphasis]
Small countries, in particular, may be regarded as ‘enhancing their sovereignty’ through participation
in an effective multilateral regime241 but quite apart from the issue of overall enhancement of
‘sovereignty’, even the largest nations may achieve this in key respects (by, for example, being able
to ensure protection of intellectual property rights through a neutral ‘referee’, or through required
domestic laws in the other country, rather than through expending diplomatic and political capital by
more direct pressure, with the opportunity costs and reactions which that might involve).
The in dubio mitius principle seeks an outcome that least intrudes upon the sovereignty of a country.
If the issue was how a provision should be interpreted and the provision was one that protected, at#p#分頁標(biāo)題#e#
least directly, the interests of *J.I.E.L. 65 traders rather than countries242 the maxim would probably
not be applicable to protect those interests, in any case. More likely it would do the opposite, since
the importing Member's sovereignty might itself be regarded as intruded on by an objective standard
being overlaid on its domestic legislation when dealing with traders from other WTO Members.
Ultimately, in these and other cases the principle of in dubio mitius seems far too problematic to make
a major contribution to interpreting the WTO Agreements, even assuming it has sufficient validity at
modern international law. It certainly does not, despite an initial attractiveness for those advocating
minimal interference in ‘state sovereignty’, exhibit those benefits of most of the other maxims as an
easily read ‘star map’ of customary international law of treaty interpretation with the twin
characteristics of certainty and consistency. It obscures rather than illuminates.
It might seem surprising that as the WTO becomes a more legally orientated institution, the Appellate
Body should be placing faith in a maxim that seems to have been little relied on by other modern legal
tribunals, but its reliance on in dubio mitius can probably be best explained as emphasizing to its
stakeholders (including Lord McNair's ‘statesmen and diplomats’) that it does not seek to overly
impinge on ‘State sovereignty’ or overstep its perceived role. The Appellate Body is presently in more
of a cautious jurisdiction and confidence-building phase than, for example, the European Union
institutions and most other legal tribunals. Jackson has noted, for example, the Appellate Body's more
Page22
deferential attitude to State sovereignty than has sometimes been the case for WTO or GATT
panels.243
In view of such deference to state sovereignty as may already exist, reliance on in dubio mitius as a
last resort may not have much practical effect, especially if it is counterbalanced by consideration of
other principles such as ‘effectiveness’ rather than being given supremacy over them, but a resort to it
too early and too often could lead to a very conservative reading of the WTO Agreements, overly
favourable to ‘respondents’ in WTO cases, those accused of breaching their ‘obligations’. One result
of that would be to compromize one of the shining achievements of the WTO system, the willingness
and ability of the developing country Members to take action against developed (or other developing)
country Members.244
At the very least, the Appellate Body should bear in mind the eternally relevant caution of McNair that
such maxims are ‘merely prima facie guides to the intention of the parties and must always give way
to contrary evidence *J.I.E.L. 66 of the intention of the parties in a particular case’,245 as well as the#p#分頁標(biāo)題#e#
similar cautions of many others.246 Perhaps the greater challenge for the Appellate Body is to convey
that sense to the Panels at the same time as rolling out the ever more detailed and complex iterations
of the maps that those Panels should be generally guided by.
5. ‘Legitimate Expectations’
In India - Patents (US Complaint) , the Appellate Body noted that the panel examining the complaint
by the US had misapplied Article 31 of the Vienna Convention in stating that good faith interpretation
under Article 31 required ‘the protection of legitimate expectations’.247 It also noted that as only
violation complaints were available under the TRIPs Agreement, it was improper for the Panel to
apply principles from non-violation complaint jurisprudence248 . It continued
Whether or not ‘non-violation’ complaints should be available for disputes under the TRIPS
Agreement is a matter that remains to be determined by the Council for Trade-Related Aspects of
Intellectual Property (Council for TRIPS) pursuant to Article 64.3 of the TRIPS Agreement. It is not a
matter to be resolved through interpretation by panels or by the Appellate Body.
The Appellate Body in EC - Computer Equipment referred to the India-Patent findings, and not only
concluded that non-violation complaint jurisprudence was not legally relevant to the violation
complaint issue before it, but more clearly affirmed that legitimate expectations could only ever be
relevant in *J.I.E.L. 67 relation to a non-violation complaint.249 It also cited the passage in its own
decision in India - Patents just quoted when it concluded that:250
The purpose of treaty interpretation under Article 31 of the Vienna Convention is to ascertain the
common intentions of the parties. These common intentions cannot be ascertained on the basis of the
subjective and unilaterally determined ‘expectations’ of one of the parties to a treaty.
This seems to represent the correct approach both in interpretation of WTO Agreements generally,
and in the consideration of ‘legitimate expectations’ more specifically; the relevant expectations can
only flow from a consensus ad idem objectively expressed in the text of the treaty, when interpreted in
accord with applicable international norms. Otherwise there is a danger that the principle will lead to
the ‘judicial creation’ of substantive rights and obligations not obviously arising out of the WTO
Agreements themselves and that it will needlessly create some of the uncertainties for violation
complaints that surround non-violation complaints.
That approach still leaves the concept intact for non-violation complaints, and in both cases the true
situation seems to be that the only legally relevant ‘reasonable’ or ‘legitimate’ expectations are those
that flow naturally from the consensus ad idem objectively expressed in the treaty text, viewed in the#p#分頁標(biāo)題#e#
light of the other relevant Vienna Convention rules.
The broad reliance on the concept of legitimate expectations, which had been expressed by the India
- Patents Panel in terms that: ‘[t]he protection of legitimate expectations is central to creating security
and predictability in the multilateral trading system’251 may have been influenced by the broad
approach to the principle taken in European Union cases and the domestic law of some countries252
but it seems inappropriate to the more clearly and closely delineated WTO rights and obligations and
the more delicate balance between WTO institutions.
6. ‘Abus de droit’
Page23
(a) WTO reliance on the principle. In the US -- Shrimp Report the Appellate Body looked to the
principle of good faith, noting that ‘[t]his principle, at once a general principle of law and a general
principle of international law, *J.I.E.L. 68 controls the exercise of rights by states’.253 The Appellate
Body went on to state that:254
One application of this general principle, the application widely known as the doctrine of abus de droit,
prohibits the abusive exercise of a state's rights and enjoins that whenever the assertion of a right
‘impinges on the field covered by [a] treaty obligation, it must be exercised bona fide, that is to say,
reasonably’. An abusive exercise by a Member of its own treaty right thus results in a breach of the
treaty rights of the other Members and, as well, a violation of the treaty obligation of the Member so
acting. Having said this, our task here is to interpret the language of the chapeau, seeking additional
interpretative guidance, as appropriate, from the general principles of international law. [citations
omitted]
The passage from Bin Cheng relied on by the Appellate Body proceeds to elaborate the concept as
he sees it:255
A reasonable and bona fide exercise of a right in such a case as one which is appropriate and
necessary for the purpose of the right (i.e. in furtherance of the interests which the right is intended to
protect). It should at the same time be fair and equitable as between the parties and not one which is
calculated to procure for one of them an unfair advantage in the light of the obligation assumed.
(b) An uncertain path? This approach is full of highly subjective concepts and, if not treated very
cautiously and with careful reference to the intentions manifest in the texts of the WTO Agreements
themselves, could again lead a greatly expanded role for the Panels and Appellate Body (perhaps in
effect developing a general ‘equitable’ jurisdiction which it appears to lack under its constituent
documents)256 and a more subjective or ‘teleological’ approach to *J.I.E.L. 69 treaty interpretation
than is warranted under customary international law and the WTO Agreements.#p#分頁標(biāo)題#e#
The extract from Bin Cheng just noted itself throws into focus the uncertainties of this ‘principle’. The
term ‘general principle of international law’ used by both Bin Cheng and the Appellate Body is an
inherently confusing one;257 it is not clear whether the status of customary international law is being
claimed for the principle. If not, that in turn can raise issues of whether Article 3.2 of the Dispute
Settlement Understanding can bring it into consideration and, more importantly, whether it has merely
a ‘gap-filling’ role, subsidiary to treaty and customary international law.258
One author notes that even among writers accepting the principle:
[T]here is no agreement on the analysis of its significance and theoretical basis…. Some
distinguished authors question the importance of the principle in international relations, or object to its
lack of precision for practical use. Others consider it to be lacking in value as an independent rule,
asserting that it consists essentially of an application of other uncontested concepts such as good
faith, reasonableness, good neighbourliness or even equity.259
The same author goes on to note that ‘no international judicial decision or arbitral award has so far
been explicitly founded on the prohibition of abuse of rights’.260 The cases cited by the Appellate Body
in its footnote261 do not, upon analysis, appear to lend any solid support to the arguments for such a
principle. One of them makes clear that ‘good faith’ cannot be a source of obligation where none
otherwise exists.262
The Appellate Body in US - Foreign Sales Corporations made similar comments to those in US -
Shrimp, which it cited, noting that Article 3.10 of the Dispute Settlement Understanding commits
Members of the WTO, if a dispute arises, to engage in dispute settlement procedures ‘in good faith in
an effort to resolve the dispute’.263
Some aspects of the ‘principle’ of abus de droit, particularly its distinction between the existence of a
right and the exercise of that right264 (which seem *J.I.E.L. 70 so similar to the underpinnings of the
doctrine of estoppel, considered below265 ) may have some legitimate but narrowly circumscribed role
as a factor in WTO jurisprudence. Too expansive a reading of the principle has the potential,
however, to open the door to a ‘teleological’ approach, whereby the interpretation may be guided
more by the perceived general object and purpose of the agreements, examined in the then current
context, than by the text of the treaty itself.266
That is an approach which would give too much interpretational discretion to the Panel or Appellate
Page24
Body, and could lead to possible instability and uncertainty in treaty relations between WTO
Members; it is a ‘principle’ that is so uncertain, and almost ‘philosophical’ that it would be particularly#p#分頁標(biāo)題#e#
difficult for Panels to apply in a predictable and coherent fashion. If a case is actually decided on the
basis of in dubio mitius, that will be a sign that the principle looms too large in WTO jurisprudence.
7. Lex Specialis
(a) The nature of the principle. In the international law of treaties there is a great deal of support for a
principle that more specific treaties or provisions generally take precedence over more general
treaties or provisions dealing with the same subject matter. This is the principle of lex specialis
generalia specialibus non derogant, 267 a principle also widely recognized in domestic statutory
interpretation.268
(b) A mixed WTO jurisprudence. In EC -- Bananas the Appellate Body noted that the Panel should
have examined the special provision before the general.269 Whether this was support for the doctrine
of lex specialis and whether that doctrine had a place in GATT/WTO jurisprudence was argued in
detail before the Indonesia - Auto Panel. 270 Lex specialis was not relied on in the Panel Report, since
the Panel saw no conflict between the two relevant sets of provisions.271 It did, however, seem to
accept the legitimacy and relevance of the principle, in general terms.272
The matter was later considered by the US -- Foreign Sales Corporations *J.I.E.L. 71 Panel. It did
not have to decide the issue but, in noting the above-mentioned comments of the Appellate Body in
EC -- Bananas, expressed some doubts:273
We can leave to one side the question of whether the Appellate Body was confirming the applicability
of a principle of ‘lex specialis ’ or simply giving panels a lesson in ‘judicial economy’. (This principle is
not mentioned in the Vienna Convention and its application to the WTO is not without difficulty in the
light of the general interpretative note to Annex 1A of the WTO.)
The general interpretative note to Annex 1A referred to by the Panel provides:
In the event of conflict between a provision of the General Agreement on Tariffs and Trade 1994 and
a provision of another agreement in Annex 1A, the provision of the other agreement shall take
precedence to the extent of the conflict.
Presumably the Panel's point was that in the event of such a conflict the general provision in the other
Agreement must nevertheless take precedence over the specific provision in the GATT 1994. In
effect, the general interpretative note takes an explicitly lex specialis approach, but only as to the
more specific agreement, not the more specific provision .
This suggestion by the Panel has some force, and it is may represent the approach that the Appellate
Body will ultimately take, but it is not the only possible approach. The Appellate Body could decide
that the lex specialis rule would first apply as to the relevant provisions and the general interpretative
note would only then apply if an otherwise unresolved ‘conflict’ remained.#p#分頁標(biāo)題#e#
As a comparison, Article 30 of the Vienna Convention provides that where states are parties to
successive treaties relating to the same subject matter it is, in general terms, the later treaty that
prevails. At the Vienna Conference, Waldock specifically acknowledged that the idea of the ‘same
subject matter’ only referred to treaties of comparable levels of generality, however.274 Although the
wording and operation is not the same in that case, this suggests that the lex specialis principle may
have some role even where there are special rules of precedence in a treaty, because lex specialis
may form the basis of a preliminary enquiry.275
*J.I.E.L. 72 In any case, the general interpretative note would not prevent the application of lex
specialis in conflicts internal to a particular Agreement or as between the Annex 1A Agreements.
Most recently, the Panel in US -- Anti-dumping Act (Complaint by Japan) expressed the view that
the Appellate Body in EC -- Bananas was applying lex specialis. 276 The Panel did not, however,
address the issue raised by the US -- Foreign Sales Corporations Panel.
8. The Nuclear Tests Cases - unilateral statements
In the Nuclear Tests Cases, when considering the legal status of certain unilateral declarations made
by States, the International Court of Justice noted that:277
Page25
When it is the intention of the State making the declaration that it should become bound according to
its terms, that intention confers on the declaration the character of a legal undertaking, the State
being thenceforth legally required to follow a course of conduct consistent with the declaration. An
undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within
the context of international negotiations, is binding.
The rule that such declarations must be respected may be based on the general principle of good
faith, although as one commentator has noted, the International Court of Justice did not rely on ‘good
faith’ as the basis for the underlying principle in the Nuclear Tests Cases, but only as to the position if
the declaration is made but not adhered to -- the underlying basis for the principle itself was not made
clear.278 The principle has nevertheless been endorsed by the International Court of Justice in
subsequent cases.279
The Panel in US - Trade Act Sections 301-310 indicated that:280
Attributing international legal significance to unilateral statements made by a State should not be
done lightly and should be subject to strict conditions…. *J.I.E.L. 73 A sovereign State should
normally not find itself legally affected on the international plane by the casual statement of any of the
numerous representatives speaking on its behalf in today's highly interactive and interdependant
world nor by a representation made in the heat of legal argument on a State's behalf. This, however,#p#分頁標(biāo)題#e#
is very far from the case before us. [citations omitted]
It cited the above excerpt from the Nuclear Tests Case and noted that: ‘[t]he criteria of obligation
were: the intention of the state making the declaration that it should be bound according to its terms;
and that the undertaking be given publicly’, and gave extensive citations.281
The US -- Trade Act Panel then seemed to say that it did not need to rely on that doctrine anyway,
since the case before it was not about creation of a new legal obligation, but that it would
nevertheless apply ‘the same, and perhaps even more, stringent conditions’, in any case.282 It went on
to find that US statements in the Panel proceedings (to the effect that the discretion of the US Trade
Representative under the US legislation had been limited so as to prevent a determination of
inconsistency before the exhaustion of Dispute Settlement Understanding proceedings) bound the
US, because:
• they represented a statement of the existing US policy or domestic law undertaking, and its
transplanting into an international setting, not a new policy;
• they were solemnly made by legal representatives with full powers (acting within their authority)
stating the legal position of the US in domestic law;
• the statements were intended to be part of the record; and
• they were able to be relied on by the Panel and the other Parties.283
The Panel concluded:284
Accordingly, we find that these statements by the US express the unambiguous and official position of
the US representing, in a manner that can be relied upon by all Members, an undertaking that the
discretion of the USTR has been limited so as to prevent a determination of inconsistency before
exhaustion of Dispute Settlement Understanding proceedings…. As a matter of international law, the
effect of the US undertakings is to anticipate, or discharge, any would-be State responsibility that
could have arisen had the national law under consideration in this case consisted of nothing more
than the statutory language. It of course follows that should the US repudiate or remove in any way
these undertakings, the US would incur State responsibility since its law would be rendered
inconsistent with the obligations under Article 23 [citation omitted]
The Panel's decision is a very unclear one in its semi-reliance on the Nuclear *J.I.E.L. 74 Tests
Cases principle. It is noteworthy that the statements made in the fairly closed environment of dispute
settlement proceedings were seen as being sufficiently public to form the basis of a legal obligation to
‘all Members’. Rubin, in contrast, notes that while a declaration made by a party before an
international tribunal is binding on that party in the proceedings285 it is not a unilateral declaration in
the sense of the Nuclear Tests Cases,286 and it should be noted in this respect that WTO proceedings#p#分頁標(biāo)題#e#
are more ‘closed’ than many other international tribunals involving States. The written and oral
arguments in ICJ cases are publicly available on the ICJ website,287 for example.
Page26
The comment about the effect if the US repudiated or removed in any way its undertakings is also
worthy of note, because in the Nuclear Tests Cases, if France failed to comply with the unilateral
declaration, the result would be that the complainants could request an examination of the situation
by the ICJ, which would revive the terminated proceedings.288 There seems no such ability to revive
terminated Appellate Body proceedings.
It seems, therefore, that the result in the WTO context would be that the benefits of reliance on the
principle (which in the original International Court of Justice case allowed the court to side-step the
vexed issue of legality of nuclear testing) would not be accompanied by the discipline of a possible
direct re-opening of proceedings before the Appellate Body.
In US - Anti-dumping Act (EC Complaint), the Panel noted the Nuclear Tests Cases doctrine but
rejected its application in the instant case (involving statements made by senior US officials before
the US Congress) on the following bases:289
• the strict separation of the judicial and executive branches under the US Constitution meant that a
statement by the executive branch of government in a domestic forum could only be of limited
value;290
• with the possible exception of a statement of the US Trade Representative, the statements were not
made at a sufficiently high level *J.I.E.L. 75 compared with the statements considered by the
International Court of Justice in the Nuclear Tests Cases;
• the statements were not directly addressed to the general public (an apparently stricter standard of
what is public than that adopted by the Panel in the US - Trade Act Sections 301-310 Report); and
• they were not made on behalf of the United States, but, at best, on behalf of the executive branch of
government.291
The matter was not addressed in the Appellate Body Report.
In summary, while the Nuclear Tests Cases principle may have a role in WTO jurisprudence, it should
only very rarely apply; principles of acquiescence or estoppel are much more likely to be relevant in
any particular case. There are also difficulties as to what would happen should the unilateral
declaration not be observed.
9. Evolutionary meanings
The Appellate Body has accepted in its treaty interpretations that it may be evident from a treaty that
a term has an evolutionary meaning, with some built in ‘elasticity’ to accommodate new shades of
meaning as they develop, while respecting the bargain that has been struck. From the perspective
embodied in the preamble of the WTO Agreement, which it relied on to ‘add colour, texture and#p#分頁標(biāo)題#e#
shading to our interpretation of the agreements annexed to the WTO Agreement, in this case, the
GATT 1994’292 the Appellate Body in US - Shrimp found that: ‘the generic term “natural resources” in
Article XX(g) is not “static” in its content or reference but is rather “by definition, evolutionary”’.293
The Appellate Body followed the International Court of Justice's lead in finding that in such cases, the
term's ‘interpretation cannot remain unaffected by the subsequent development of law …. Moreover,
an international instrument has to be interpreted and applied within the framework of the entire legal
system prevailing at the time of the interpretation’.294
If not applied cautiously, this approach could constitute a disguised teleological analysis, yielding
European Court of Justice-type flexibility and rule-making power to the Panels and Appellate Body. If
applied correctly, *J.I.E.L. 76 however, it merely recognizes the ‘room for growth and alignment’
which (it emerges from the text in its context, read in the light of the treaty's object and purpose) the
negotiators intended to build into the provision.
The correct approach is probably to apply the international law meanings, as at the time of
negotiation, to the text to determine its ‘initial reality’295 and then to determine, following the normal
interpretative rules, whether a term used has the ‘evolutionary’ characteristic referred to in the US -
Shrimp Appellate Body Report,296 and what that meaning is at the time legally relevant to a dispute,
provided always that the evolutionary interpretation is consistent with the expressed intention (as
evident from a Vienna Convention analysis) of the Parties at the time.
Page27
G. Conclusion on WTO Reliance on Maxims
The Appellate Body reliance on various interpretative maxims represents in many respects the most
interesting area of WTO interpretative jurisprudence. The maxims appear to be relied on as a
convenient expression of principles, a ‘star chart’ for Panels unfamiliar with public international law to
assist in the development of a legally coherent text-based WTO jurisprudence and to bind together
relevant international economic law and public international law.
They have in many cases effectively fulfilled this role, and enhanced the predictability and certainty of
WTO jurisprudence while aligning it closely to international treaty law more generally. The danger
would be if the reliance on these maxims went beyond that role to lead Panels and the Appellate
Body away from the Vienna Convention's primarily text-based approach to create greater uncertainty
as to the applicable rules and to risk altering the balance of WTO institutions, with the Panels and
Appellate Body having a greater ‘law-making’ role than was designed.#p#分頁標(biāo)題#e#
The other danger of such uncertainty or unpredictability is that it does little to discourage settlement of
disputes at the negotiation stage or before.297 A system which delivers general predictability and yet
offers acceptable outcomes in most individual cases can itself help avoid or lower the ‘temperature’ of
trade disputes and to enhance the integrity of the system as a whole.
H. Related acquiescence and estoppel issues
Practice of the two parties to a dispute (or the practice of one with express or implied acceptance by
the other) might in certain cases be relevant to a dispute even where it does not constitute
‘subsequent practice’ of WTO *J.I.E.L. 77 Members as a group such as may substantively alter the
meaning of the relevant WTO agreement in terms of Article 31 of the Vienna Convention.298
Issues of estoppel and acquiescence are not strictly issues of ‘interpretation’ and (where not
constituting practice or acquiescence in it by all parties to a treaty) may derive from the obligation to
perform treaties in good faith, or else from generally accepted domestic law principles299 as a source
of international law. As such issues may, however, play an important role in future in giving flexibility
to recognize some of the related rights obligations and relationships of WTO disputants without
actually reinterpreting the WTO Agreements, the treatment of such issues before the WTO deserves
some brief consideration here.
Kuyper, writing in 1994, thought it unlikely that arguments of estoppel would be accepted by GATT
Panels,300 and noted the rejection of an estoppel argument on rather doubtful legal grounds in the
unadopted 1993 EEC - Bananas Panel Report, 301 but considered that estoppel was a basic concept
of procedural fairness that could not be excluded forever.
In fact this is an area of some tentative developments since the coming into being of the WTO. The
concepts of acquiescence and estoppel were not addressed as part of the Appellate Body's
consideration of the relevance of a bilateral Oilseeds Agreement in EC - Poultry, where the
Agreement was seen as a relevant supplementary means of interpretation only.302 The EC in that
case had, however, argued that a relevant Schedule superseded and terminated, or overrode to the
extent of any inconsistency, the Oilseeds Agreement, rather than that the Oilseeds Agreement formed
the basis of an estoppel or acquiescence.303
Acquiescence was argued by Guatemala before the Panel in Guatemala - Cement as disentitling
Mexico's complaint, treating it as a form of estoppel.304 The Panel responded, drawing a distinction
between acquiescence and estoppel:305
Guatemala uses both the concepts of ‘acquiescence’ and ‘estoppel’ in support of this argument. We
note that ‘acquiescence’ amounts to ‘qualified silence’, whereby silence in the face of events that call#p#分頁標(biāo)題#e#
for a reaction of some sort may be interpreted as a presumed consent.306 The concept of estoppel,
also relied on by Guatemala in support of its argument, is akin to that of acquiescence.
*J.I.E.L. 78 Estoppel is premised on the view that where one party has been induced to act in
reliance on the assurances of another party, in such a way that it would be prejudiced were the other
party later to change its position, such a change in position is ‘estopped’, that is precluded.307 [original
footnotes]
The Panel found that Mexico had raised its claims at an appropriate time, and could not be regarded
as acquiescing in, or as being estopped from, complaining about, Guatemala's conduct. The Panel
Page28
also noted, quite correctly, that ‘the precise scope and applicability of this concept is still a matter of
debate, and it is clear that not any silence can be considered to constitute consent’.308 The Appellate
Body did not find it necessary to pronounce upon the issue on appeal.309
In the earlier matter of US - Foreign Sales Corporations, the Appellate Body found that the US had
accepted the establishment of the Panel and was consequently unable to raise a procedural point.310
The approach taken by the Appellate Body has been described as in effect being a doctrine of
‘procedural estoppel’311 but the Appellate Body did not make clear whether it was treating this (using
its own distinction) as an issue of acquiescence or of estoppel. It seemed to require neither positive
conduct on the US side, nor reliance by the EC on such conduct as a necessary condition. This
suggests a reliance on ‘acquiescence’, the numerous opportunities to complain perhaps making up
for the relatively short period of time involved.
More recently, the Panel in EC - Asbestos 312 restated the requirements for an estoppel and then went
on to indicate the fairly narrow range of operation in practice in denying that a notification to the
Committee on Technical Barriers to Trade could form the basis of an estoppel.313 The India -
Automotive Panel has also recently expressed the view that: ‘… there may be an argument that a
general principle such as estoppel may apply to WTO dispute settlement’.314
*J.I.E.L. 79 There is an unresolved issue of whether these principles of acquiescence and estoppel
are evidential (that is, merely preventing a party from disputing a practice or state of affairs, without
affecting its underlying WTO rights) or substantive (altering the WTO rights as between parties to the
practice, but not affecting the substantive WTO obligations of other WTO Members not participating in
the practice or accepting it).315
While the practical effect in most cases is probably the same (perhaps one reason why the difference
remains unresolved), it would seem easier for these principles to take hold in WTO jurisprudence if#p#分頁標(biāo)題#e#
they are seen as being ‘evidential’ or ‘procedural’ rather than substantively altering the applicable
WTO rules.
As recognized, at least to some extent, by the Guatemala -- Cement Panel, the relationship between
the concepts of acquiescence and estoppel in international law is notoriously unclear.316 There
nevertheless appears a potential role, though a limited one, for acquiescence and estoppel concepts
in interpreting WTO Agreements.
This is most obviously a possibility for agreements with such a distinct bilateral aspect as accession
agreements -- when the two parties to the bilateral agreement are in dispute on the multilateral
agreement; such concepts can take account of the special characteristics of the bilateral international
law relationship between disputing countries, without modifying the underlying WTO rights and
obligations operating as between Members generally, as Members.
It therefore appears that the recognition of an estoppel or acquiescence does not ‘add to or diminish
the rights and obligations provided in the covered agreements’ in the terms of Article 3.2 of the
Dispute Settlement Understanding, even though a Member, because ultimately of its own actions, is
unable to assert particular rights in a particular case.
Concepts of acquiescence may also play a role in dealing with multilateral environmental agreements
to which some, but not all, WTO Members are parties, since it recognizes a modification of the
general WTO rules as operating between disputants, without reinterpreting the WTO rules in a way
that affects non-parties to the relevant environment agreement.
There would probably, however, be a point at which Panels would regard an estoppel or
acquiescence argument founded on non-WTO rights and obligations as in effect improperly trying to
bring a non-WTO matter to a more binding WTO system than might be available under the other
treaty.
*J.I.E.L. 80 I. Special rules for interpreting anti-dumping provisions
The Vienna Convention rules on interpretation are representative of customary international law, but,
as such, they would yield to specific interpretative rules in a treaty itself.317 Article 17.6 of the
Agreement on the Implementation of Article VI of GATT 1994 (Anti-Dumping Agreement) deserves
consideration in this respect. It provides that when the matter comes before a Panel for review:
(i) in its assessment of the facts of the matter, the panel shall determine whether the authorities'
Page29
establishment of the facts was proper and whether their evaluation of those facts was unbiased and
objective. If the establishment of the facts was proper and the evaluation was unbiased and objective,
even though the panel might have reached a different conclusion, the evaluation shall not be
overturned;
(ii) the panel shall interpret the relevant provisions of the Agreement in accordance with customary#p#分頁標(biāo)題#e#
rules of interpretation of public international law. Where the panel finds that a relevant provision of the
Agreement admits of more than one permissible interpretation, the panel shall find the authorities'
measure to be in conformity with the Agreement if it rests upon one of those permissible
interpretations.
Subparagraph (i) is really dealing with factual determinations, so that it does not bear upon the issue
of treaty interpretation. It gives what may be termed a ‘margin of deference’ to the importing Member
on review by a Panel of that Member's treatment of factual issues under Article 17.6(i) of the
Anti-Dumping Agreement.318 That ‘margin of deference’ is designed ‘to prevent a panel from
“second-guessing” a determination when the establishment of the facts is proper and the evaluation
of those facts is unbiased and objective’.319
Subparagraph (ii) addresses the treaty interpretation issue, but its second *J.I.E.L. 81 sentence
seems only to apply where there are two permissible interpretations after a full examination of
relevant interpretative materials, in accordance with the first sentence. It forms a ‘tie-breaker’ when
the Vienna Convention Rules have been applied but they still leave open two permissible
interpretations, and it therefore addresses a situation not expressly dealt with in those rules, rather
than displacing them.
The fact that there is sufficient ambiguity to look to supplementary means, and that one of the
possible readings is that taken by the importing Member, for example, does not mean that the issue
need not be looked at further, with the matter under review at that point decided in favour of the
importing Member. Nor could this be the conclusion just because there is a simple ambiguity on the
face of the text, right at the start of the interpretative quest, as this is likely to be the case in most
disputes.320
To take these sorts of approaches would mean that the rules of interpretation of customary
international law are not being followed, contrary to the first sentence of subparagraph (ii). An attempt
to give ‘effectiveness’ to both parts of subparagraph (ii) seems to require that the second part only
applies when the result of a full Vienna Convention interpretative analysis is undertaken and an
unresolved ambiguity remains. That will be very rare, especially since ‘effectiveness’ and at least
some other interpretative maxims are already treated in WTO jurisprudence as comprising, as we
have seen, part of the customary rules of interpretation of public international law.
It could happen, however, because an ambiguity may not be solved by recourse to supplementary
means, indeed a reference to them may exacerbate the ambiguity. The ambiguity may be a
‘negotiated ambiguity’, for example, where a disputed issue could not be settled, and was ‘papered#p#分頁標(biāo)題#e#
over’ in the text and perhaps also in the travaux. It can also happen where supplementary means of
interpretation tell only part of the story, such as where there is no clear evidence of what occurred in
key ‘private’ or informal discussions,321 or where they simply point in different directions.322
*J.I.E.L. 82 There may be rare cases, then, when a proper, not overly restrictive, Vienna Convention
analysis still leaves no clearly expressed consensus ad idem on a particular point, even if individual
negotiators may consider, subjectively, that there was such a consensus. Indeed, two persons may
each subjectively believe that there is a consensus ad idem (that is, there is an apparent consensus
that there is a consensus), but as each believes there is a different consensus, there will, in fact, be
no underlying consensus on the text.
The question arises of whether there are any ‘customary rules of interpretation of public international
law’ to deal with such a case. Unlike the Vienna Convention rule for dealing with differing readings as
between equally authentic texts in different languages323 there are no obvious ‘tie-breakers’ for an
ambiguity that is not resolved by the normal application of Articles 31 and 32 of the Vienna
Convention, and that is not resolved by the examination of the different language texts (following the
Article 33 rules).
This appears to be what Waldock in his 1964 Report referred to as ‘an over-all ambiguity in the text
which can only be resolved by making a presumption in favour of one or other interpretation’.324 He
explicitly recognized that ‘this rule will only operate when recourse to travaux p#éparatoires and the
Page30
other subsidiary means of interpretation mentioned in article 71 has failed to remove the ambiguity’.325
The Article 71 referred to was the draft ILC Article which became, with minor changes, Article 32 of
the Vienna Convention.
Waldock doubted the view of some that the Permanent Court of International Justice's decision in the
Mavrommatis Palestine Concessions Case326 laid down a general rule for such cases in favour of the
more limited interpretation, and thought that whether this was so in a particular case depended on
‘the nature of the treaty and the particular context in which the ambiguous term occurs’.327
The Mavrommatis case seems, in fact, to only really address a case where there is a minimum set of
rules that have clearly been agreed, but where there is doubt about whether there is a consensus on
an extension to that rule claimed by one disputant. Apart from the obvious point that if a consensus
ad idem on a rule cannot be shown it will not be credited as part of the treaty obligations anyway, the
Mavromattis approach has little or no usefulness in interpreting a ‘package deal’ of interlinked#p#分頁標(biāo)題#e#
negotiations.
*J.I.E.L. 83 It is strongly arguable, therefore, that there are no ‘customary rules of interpretation of
public international law’ dealing with such a rare case as an ‘overall ambiguity’. This is because the
evidence of sufficient practice by States on this point is probably lacking, let alone evidence that such
practice is accepted as legally obligatory by those States. Evidence of both of these things is
necessary to constitute such a practice ‘customary international law’, and both (in contrast) exist for
the principles found in the Article 31 and 32 rules.
Even if the solution to such an overall ambiguity can be found in customary international law, what
represents such law is relatively uncertain and will depend very much on the circumstances of the
case, such as the ‘nature of the treaty and the particular context’ as noted by Waldock.328 In its terms
Article 17.6(ii) of the Anti-Dumping Agreement would not be ‘triggered’ by mere uncertainty about
what the customary rules of interpretation are, but if in such cases the Appellate Body could not prefer
one view or the other as to what the underlying law was, it might conclude that the interpretations are
therefore each permissible (not being clearly impermissible) under the customary international law of
interpretation.
The second part of subparagraph (ii) is not made ‘ineffective’ on the reading I have preferred. It
appears to have a more limited role than the Chevron doctrine in US law which its wording ultimately
derives from,329 being less deferential to the importing Member's administration, but in the context of
the varying situations and expectations of Uruguay Round negotiating countries the narrowing of this
‘margin of deference’ in ‘administrative review’ by a Panel is adequately explained.
Perhaps the negotiated provision can be further explained in light of the fact that it could be relied on
to the disadvantage, for example, of US interests operating abroad in the multilateral sphere, whereas
its US domestic law counterpart would only be relied on by US authorities domestically, and such
reliance would be expected to favour the US as the importing country.
In effect, then, the normal Vienna Convention rules should apply to antidumping, with, in
‘administrative review’ of an investigating authority decision, a special ‘tie-breaker rule’ giving some
deference to the importing Member in the event of an ultimate ambiguity, one not resolved by those
rules. The tie-breaker does not give complete freedom to the Panel, the *J.I.E.L. 84 interpretation of
the importing Member must be one of the permissible ones left open by a Vienna Convention
analysis.
Without the rule (such as in non-anti-dumping cases) such an ultimate ambiguity would probably be#p#分頁標(biāo)題#e#
resolved by the application as a tie-breaker of one of the ‘principles’ referred to by Waldock (such as
in favour of a restrictive interpretation - although such an application is highly artificial if the
presumption has not already been decisive on a Vienna Convention analysis330 ) which may or may
not give the same result as provided by subparagraph (ii). It is also conceivable that the issue would
be decided against whoever had the relevant burden of proof,331 if such a concept extends to issues
of law, as well as fact.332
The subparagraph (ii) ‘tie-breaker’ may add little to the normal Vienna Convention rules in most
practical situations, but it does clarify the position in some respects, so that to read Article 17.6 as
leaving the Vienna Convention rules intact constitutes an ‘effective’ reading of the text.
This approach conforms with the approach of the Panel in US - Steel Plate from Korea: 333
Thus, in considering those aspects of the United States' determinations which stand or fall depending
Page31
on the interpretation of the AD Agreement itself rather than or in addition to the analysis of facts, we
first interpret the provisions of the AD Agreement. As the Appellate Body has repeatedly stated,
panels are to consider the interpretation of the WTO Agreements, including the AD Agreement, in
accordance with the principles set out in the Vienna Convention on *J.I.E.L. 85 the Law of Treaties
(Vienna Convention). Thus, we look to the ordinary meaning of the provision in question, in its
context, and in light of its object and purpose. Finally, we may consider the preparatory work (the
negotiating history) of the provision, should this be necessary or appropriate in light of the conclusions
we reach based on the text of the provision. We then evaluate whether the United States'
interpretation is one that is ‘permissible’ in light of the customary rules of interpretation of international
law.
The Appellate Body Reports in Thailand - Steel 334 and in European Communities - Bed Linen 335 also
support this approach. The Appellate Body Report in US - Steel from Japan considered the issue in
more detail and referred to both in its earlier Reports in concluding that:336
This second sentence of Article 17.6(ii) presupposes that application of the rules of treaty
interpretation in Articles 31 and 32 of the Vienna Convention could give rise to, at least, two
interpretations of some provisions of the Anti-Dumping Agreement, which, under that Convention,
would both be ‘permissible interpretations’. In that event, a measure is deemed to be in conformity
with the Anti-Dumping Agreement ‘if it rests upon one of those permissible interpretations.’
It follows that, under Article 17.6(ii) of the Anti-Dumping Agreement, panels are obliged to determine#p#分頁標(biāo)題#e#
whether a measure rests upon an interpretation of the relevant provisions of the Anti-Dumping
Agreement which is permissible under the rules of treaty interpretation in Articles 31 and 32 of the
Vienna Convention. In other words, a permissible interpretation is one which is found to be
appropriate after application of the pertinent rules of the Vienna Convention. We observe that the
rules of treaty interpretation in Articles 31 and 32 of the Vienna Convention apply to any treaty, in any
field of public international law, and not just to the WTO Agreements. These rules of treaty
interpretation impose certain common disciplines upon treaty interpreters, irrespective of the content
of the treaty provision being examined and irrespective of the field of international law concerned.
[citations omitted, original emphasis]
SUMMARY AND CONCLUSION
At the beginning of this paper, I compared the Appellate Body's task of treaty interpretation to that of
the early navigators scanning the stars to guide their uncertain journeys. On this analogy, in drawing
up a map to guide itself, and *J.I.E.L. 86 particularly the Panels, the Appellate Body has taken its
basic bearings from the essentially text-based approach of the Vienna Convention, and has generally
avoided other distracting points of light.
While some may regard this as an ‘unadventurous’ form of navigation, there is no doubt that these
bearings represent, in most part, the essence of modern public international law rules on treaty
interpretation.
The more ‘adventurous’ approach of, for example, the European Court of Justice is aligned to the
broader, more philosophic, nature of the European Union constitutive instruments, the different
balance between EU institutions, the different circumstances of their development, the more limited
membership and the different expectations of treaty parties, particularly as to the ‘depth’ of the
relationship, but it is unsuited to the existing WTO universe.
The Vienna Convention rules represent the rules most generally agreed as best calculated to give
effect to the language of a treaty, as the authentic expression of the negotiators' collectively
expressed intent (the consensus ad idem ) and to give confidence that promises between countries
expressed in carefully constructed written terms can be relied on in international relations, including
by parties acceding later.
Those rules were also intended to reflect what happened in State practice. At the time of the Vienna
Conference, the GATT was not one of the best examples of that practice - ‘international trade law’
and ‘public international law’ as disciplines have had in many respects a separate development, and
culture. It has been noted in this respect that ‘it was exceedingly rare for GATT panels to refer to#p#分頁標(biāo)題#e#
general principles of public international law, or to refer to case law of other international tribunals’337
and international trade law was seen in its turn as an alien, inhospitable, and often an uninteresting
and peripheral, landscape to most public international lawyers, as compared with the international law
Page32
of the sea, of war, of the environment or of human rights, for example. The experience is not unique -
the relationship of international law and international taxation was for a long time barely appreciated,
despite the very large number of such tax treaties.338
Perhaps such views are, in some part, a re-expression of the traditional distaste that the professions
often expressed for ‘trade’, but in any case it is only now that the integral place of international trade
law in the international law of peace is gaining widespread recognition. The increasingly sophisticated
WTO consideration of treaty interpretation issues is a sign of convergence between these worlds,
which will perhaps one day be cemented by the International Court of Justice drawing upon WTO
jurisprudence and economic *J.I.E.L. 87 thinking in its decisions, or by an Appellate Body member
taking his or her place on the bench of that Court.
By setting the textual approach as its North Star (or its Southern Cross) the Appellate Body has
assisted this convergence. It has paid due respect to the Uruguay Round outcomes and the WTO
‘constitution’ while instilling a disciplined approach to their interpretation by the less international
laworientated panels. It has taken a predictable and relatively safe approach that may help bind
together the economic aspects of the WTO Agreements and the wider development of international
law, infusing each with each.
It will be interesting to see if the WTO Panels and the Appellate Body develop a distinctive, and
perhaps bolder, jurisprudence over time. The interpretative maxims relied on by the Appellate Body
are becoming just such a feature of WTO jurisprudence. The Appellate Body could be criticized for an
over-reliance on such maxims, and insufficient examination of how well they reflect modern
international law, but if used judiciously, they can be used as a way of focusing Panels on the
philosophy and practice of a textual approach to treaty interpretation.
That is a legitimate consideration in a time of developing jurisprudence and confidence building and in
a circumstance of resource constraints and tight WTO dispute settlement time frames.339 It is an
appropriate way for a well qualified standing tribunal to give direction to the ad hoc Panels in the
difficult area of treaty interpretation, and enhance their collective thinking and collective memory. It
can help them settle disputes more quickly and even, with greater certainty as to how future disputes
would be settled, should assist in avoiding matters ever coming before the WTO's formal dispute#p#分頁標(biāo)題#e#
settlement regime.340
If used improperly, some of the maxims could contradict the basic textual approach of the Vienna
Convention rules and develop a life of their own, impairing the delicate balance of the WTO
institutions - by concentrating on the microcosm of the world of maxims, the macrocosm of their
reasons for existence could fall outside the microscope's field of view.
The Appellate Body's record is not unblemished, its own application of those Vienna Convention
principles it espouses can sometimes be criticized, as has happened in the case, for example, of
certain amicus curiae rulings341 *J.I.E.L. 88 and its Report in US -- Wheat Gluten. 342 I consider,
however, that any Appellate Body divergence from the path it has itself mapped out is not of such a
quantity or quality as to undermine the integrity of that map.
There have also been a few questionable bearings and diversions in the WTO jurisprudence that
constitutes the map itself. The reliance on the in dubio mitius principle, for example, demonstrates a
deference to the notion of ‘sovereignty’ which appears to unjustifiably and unprofitably differ from the
approach taken by other modern international tribunals, and which will perhaps wane as the Appellate
Body grows in confidence, as the complexity of what the ‘sovereignty’ concept means in a multilateral
environment is further explored, and as the potential clash between this and other more widely
accepted interpretative principles (such as that of ‘effectiveness’) become more obvious. The balance
of the WTO ‘constitution’ can be properly respected without resource to such a ‘principle’, and the risk
of its misapplication by the Panels can be avoided.
The consideration of the Nuclear Tests Cases issues, and the wrestling with issues such as the
difference between acquiescence and estoppel show, in some respects, an increasing sophistication,
even at the Panel level, but occasionally the jurisprudence overreaches itself and concepts become
confused, suggesting most overtly that a maxim is used to support the desired result, rather than that
it forms part of a coherent legal approach leading to the outcome most in accord with the textual
approach and customary international law norms.
Similar issues arise from the broad approach to the principle of ‘good faith’ and to related concepts
such as abus de droit. The principle of ‘good faith’ gives some flexibility, especially when dealing with
Page33
a ‘residuary category of cases which cannot be rigorously defined or exhaustively classified in
advance’,343 and thus slightly moderates the textual approach, but which by its nature should not be
open to abuse.344
While it is to be hoped that the greater integration of international trade law and public international#p#分頁標(biāo)題#e#
law will not be a one way street, and that some of the WTO economic analysis will feed into the
decisions of other international tribunals, the revival of public international law ‘principles’ that have
been *J.I.E.L. 89 generally discarded as unsuited to modern international relations, should not be
part of that cross-fertilization.
If the Vienna Convention approach is not closely borne in mind, such general concepts may develop
a life of their own and could lead the interpreters away from the text towards more ‘teleological’ or
‘subjective’ means of interpretation, or else to a quasi-equitable jurisdiction which would be regarded
by most as improperly enlarging the role of the Appellate Body and potentially impairing the balance
between the WTO institutions and the predictability and integrity of its decisions.
The Appellate Body has a heavy workload, and even if, as a standing body, it feels confident in a
more teleological approach, that approach is likely to lead to a lack of consistency in Panel decisions,
a lack of certainty and, over time, a lack of credibility in the WTO's ability to deliver a knowable and
neutral solution to trade disputes. The approach it has hitherto adopted has nevertheless, by and
large, been an effective way of delivering up its knowledge and experience of international law to the
Panels and the other WTO stakeholders in small and incrementally effective doses.
In all these types of case, the fundamentally textual approach of the Vienna Convention rules,
assisted (rather than driven) by legal principles consistent with those rules, should prove the best
interpretative approach. It assumes that in their long negotiations the parties' expert negotiators have
sought to have their interests and concerns carefully expressed in the measured language of the
Agreements themselves, yet it takes a structured and inclusive approach, it seeks an informed and
considered understanding of what those Agreements mean. Like the solution to most complex
problems it represents a balanced, measured and nuanced approach to how a relationship expressed
in words should operate in a situation perhaps never even specifically contemplated by those drawing
up the words.
A better understanding of the WTO jurisprudence on interpretation and of the Vienna Convention
rules by those negotiators (and, indeed, by all levels of the WTO constituency) will help validate this
approach; but the approach will always look for a consensus ad idem expressed in the WTO treaty
language, and such a consensus will not necessarily reflect in every respect and nuance the
aspirations of even the more powerful players in multilateral negotiations.
International Tax Counsel (Treaties) Australian Tax Office, having previously held various Australian
Government positions dealing with international trade and investment law, public international law and#p#分頁標(biāo)題#e#
international taxation: [email protected] The views expressed in this paper are not intended
to reflect those of the ATO or the Australian Government. This paper is based on aspects of one
delivered to the ‘China and the WTO’ Conference, Australian National University, Canberra, Australia,
17 March 2001.
J.I.E.L. 2002, 5(1), 17-89
1. Done at Vienna, 23 May 1969, 1155 United Nations Treaty Series 331 (1980); 8 International Legal Materials 679 (1969).
2. WTO Appellate Body Report, United States -- Standards for Reformulated and Conventional Gasoline (US -- Gasoline), WT/DS2/AB/R,
adopted 20 May 1996, at 17; see also WTO Appellate Body Report, Japan -- Taxes on Alcoholic Beverages (Japan -- Alcohol),
WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, at 10ff. The Vienna Convention was rarely referred to by
GATT 1947 Panels, but sometimes the principles codified by it were alluded to: James Cameron and Kevin R. Gray, ‘Principles of
International Law in the WTO Dispute Settlement Body’, 50 ICLQ 248 (2001) at 252-53. The International Court of Justice has similarly
treated the Vienna Convention interpretational rules as reflective of customary international law. See, e.g. Case Concerning Kasikilil
Sedudu Island (Botswana/Namibia), Judgment (13 December 1999), available at:
http://www.icj-cij.org/icjwww/idocket/ibona/ibonaframe.htm (visited on 7 January 2002); Oil Platform (Islamic Republic of Iran v United
States of America), Preliminary Objections, Judgment, International Court of Justice (ICJ) Reports 1996 (II), 803 at 812, para 23;
Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, ICJ Reports 1994, 6 at 21-22, para 41; Arbitral Award of 31 July 1989
(Guinea-Bissau v Senegal), Judgment, ICJ Reports 1991, 53 at 69-70, para 48.Article 3.2 of the Dispute Settlement Understanding
provides:The dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading
system. The Members of the WTO recognize that it serves to preserve the rights and obligations of Members under the covered
agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public
international law. Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered
agreements.
3. Pieter Jan Kuyper, ‘The Law of GATT as a Special Field of International Law’ (Kuyper) 35 Netherlands Yearbook of International Law 227
Page34
(1994), at 232.
4. The reasons why the United States, for example, has not ratified essentially relate to internal constitutional issues in that country: see
Congressional Research Service, United States Library of Congress, ‘Treaties and other International Agreements: The Role of the#p#分頁標(biāo)題#e#
United States Senate - A Study Prepared for the Committee on Foreign Relations, United States Senate’ (106th Congress, 2d Session, S.
PRT, 106-71, January 2001) available at http://www.access.gpo.gov/congress/senate/ senate11 cp106.html (visited on 7 January 2002)
at 46-47. There have been several US executive statements reflecting the Vienna Convention's role as a codification of customary law
(ibid, at 43-44) and the Study just referred to itself notes that: ‘The Vienna Convention codifies existing international rules of treaty, which
differ from the rules of treaty interpretation as applied by US courts. In essence, the convention stresses “the dominant position of the text
itself in the interpretative process”, whereas US courts are more apt to permit supplementary means of interpretation if necessary’ (ibid, at
163). See also Maria Frankowska, ‘The Vienna Convention on the Law of Treaties before United States Courts’, 28 Virginia Journal of
International Law 281 (1988).
5. See, e.g. para 1.2 of China's Accession Protocol, WTO Document WT/MIN(01)/3, 10 November 2001, at 74ff, available at
http://www.wto.org/english/thewto--e/acc--e/protocols--acc--member-ship--e.htm (visited on 7 January 2002): ‘This Protocol, which shall
include the commitments referred to in paragraph 342 of the Working Party Report, shall be an integral part of the WTO Agreement.’
6. See WTO Appellate Body Report, European Communities - Measures Affecting the Importation of Certain Poultry Products (EC - Poultry),
WT/DS69/AB/R, adopted 23 July 1998, para 79 (citing Article II:7 of the GATT 1994); WTO Appellate Body Report, European
Communities - Customs Classification of Certain Computer Equipment (EC - Computer Equipment), WT/DS62/AB/R, WT/ DS67/AB/R,
WT/DS68/AB/R, adopted 22 June 1998, para 84; WTO Appellate Body Report, Canada - Measures Affecting the Importation of Milk and
Exportation of Dairy Products (Canada - Dairy), WT/DS103/AB/R, adopted 22 October 1999, para 131; WTO Appellate Body Report,
Korea - Definitive Safeguard Measure on Imports of Certain Dairy Products (Korea - Dairy), WT/DS98/ AB/R, adopted 12 January 2000,
paras 81 and 84.
7. Donald M. McRae, ‘The WTO in International Law: Tradition Continued or New Frontier?’, 3(1) JIEL 27 (2000) at 37, 48, notes that:In
Canada - Measures Affecting the Importation of Milk and the Exportation of Dairy Products, 13 October 1999 (AB-1999-4), the Appellate
Body characterized the commitment on fluid milk in Canada's Schedule to GATT 1994 as having been made ‘unilaterally’ (para. 139).
Nevertheless, the Appellate Body followed its earlier approach in the LAN decision that the terms set out in a state's Schedule are treaty#p#分頁標(biāo)題#e#
provisions to be interpreted in accordance with the Vienna Convention on the Law of Treaties (para 131).
8. It came into force internationally on 27 January 1980.
9. For this classification see Gerald Fitzmaurice, ‘The Law and Procedure of the International Court of Justice: Treaty Interpretation and
Certain Other Treaty Points’ 28 British Yearbook of International Law 1 (1951). See also International Law Commission Commentary on
the draft Vienna Convention, Yearbook of the International Law Commission, 1966, Vol. II (ILC Commentary) at 218-20. The International
Law Commission Commentary is particularly valuable in interpreting the Vienna Convention, as its draft rules on treaty interpretation were
in all substantive respects picked up in the final Convention. It has been extensively relied on by WTO Panels and the Appellate Body;
see for example: Appellate Body Report, US -- Gasoline, above n 2, at 23, 45; Appellate Body Report, Japan -- Alcohol, above n 2, at 21
and 26; WTO Appellate Body Report, Canada -- Term of Patent Protection (Canada -- Patents), WT/DS170/AB/R, adopted 12 October
2000, para 73; WTO Panel Report, United States -- Section 110(5) of the US Copyright Act (US -- Copyright Act), WT/DS160/R, adopted
27 July 2000, para 6.45; WTO Panel Report, United States --Sections 301-310 of the Trade Act of 1974 (US -- Trade Act), WT/DS152/R,
adopted 27 January 2000, at 305, para 7.22, 638. The International Court of Justice has similarly relied on the Commentary; see, for
example, Case Concerning Kasikilil Sedudu Island (Botswana/Namibia), above n 2, at para 49.See also: Ian Sinclair, The Vienna
Convention and the Law of Treaties, 2nd ed. (Manchester: Manchester University Press, 1984) at 130-31; Francis G. Jacobs, ‘Varieties of
Approach to Treaty Interpretation: With Special Reference to the Draft Convention on the Law of Treaties before the Vienna Diplomatic
Conference’, 18 ICLQ 318 (1969) at 319.
10. At Article 32.
11. This was the approach taken by the US delegation at the Vienna Treaties Conference, which sought to list the various materials to be
used in interpretation, but without giving any priorities between them: United Nations, United Nations Conference on the Law Of Treaties,
Official Records of the First Session (UN Doc Conf 39/11) (Vienna Conference Records, First Session) at 167-68.
12. Annuaire de l'Institut de droit international, 1950, 377-402, cited in Humphrey Waldock, ‘Third Report on the Law of Treaties’, Doc
A/CN.4/167 & Add 1-3, Yearbook of the International Law Commission, 1964, Vol. II, 5 at 53, 59. See also the discussion of the support
by Hersch Lauterpacht and others for this approach in Jacobs, above n 9, at 320-21.
13. Sinclair, above n 9, at 115; see also Waldock, above n 12, at 56; ILC Commentary, above n 9, at 220.
14. L. Neville Brown and Tom Kennedy (eds), Brown and Jacobs: The Court of Justice of the European Communities, 5th ed (London: Sweet#p#分頁標(biāo)題#e#
& Maxwell, 2000) 339.
15. Fitzmaurice 1951, above n 9 at 1; Jacobs, above n 9, at 319ff; Ian Sinclair, ‘Vienna Conference on the Law of Treaties’, 19 ICLQ 61
(1970).
16. As recognized by the International Law Commission in its Commentary on the draft Convention: ILC Commentary, above n 9, at 220.
17. See, for example, Vienna Conference Records, First Session, above n 11, at 174, para 25 (Nahlik), 170, paras 63-65 (Jiménez de
Aréchaga) and 178, para 10 (Sinclair). See also Jacobs, above n 9, at 339.
18. As noted above n 2.
19. Jacobs, above n 9, at 342.
20. In Panel Report, US -- Trade Act, above n 9, para 7.22, 638, the Panel said:As noted by the International Law Commission (ILC) -- the
original drafter of Article 31 of the Vienna Convention -- in its commentary to that provision:‘The Commission, by heading the article
“General Rule of Interpretation” in the singular and by underlining the connexion between paragraphs 1 and 2 and again between
paragraph 3 and the two previous paragraphs, intended to indicate that the application of the means of interpretation in the article would
be a single combined operation. All the various elements, as they were present in any given case, would be thrown into the crucible, and
their interaction would give the legally relevant interpretation. Thus [Article 31] is entitled “General rule of interpretation” in the singular,
not “General rules” in the plural, because the Commission desired to emphasize that the process of interpretation is a unity and that the
provisions of the article form a single, closely integrated rule’ (Yearbook of the ILC, 1966, Vol II, pp 219-20).
21. The WTO seems to rely more on the various Oxford Dictionaries, with some reference to Webster's Dictionaries, and occasional use of
specialist dictionaries.
22. Appellate Body Report, Japan -- Alcohol, above n 2, at 20. See also WTO Panel Report, Canada -- Certain Measures Affecting the
Automotive Industry, WT/DS139/R and WT/DS142/R, adopted (as modified) 19 June 2000, para 10.12, 807; Panel Report, US -- Trade
Act, above n 9, para 7.22, 638; WTO Panel Report, United States -- Definitive Safeguard Measures on Imports of Wheat Gluten from the
European Communities, WT/DS166/R, adopted (as modified) 19 January 2001, at para 112; Vienna Conference Records, First Session,
above n 11, 33rd Meeting at 184 (Waldock).
Page35
23. Sinclair, above n 9, at 121. Cf. Jacobs, above n 9, at 340-41. In a separate opinion in Land, Island and Maritime Frontier Dispute (El
Salvador/Honduras: Nicaragua Intervening), Judgment, ICJ Reports 1992, 351 at 718-19, para 190, Torres Bernárdez J of the
International Court of Justice noted that:For treaty interpretation rules there is no ‘ordinary meaning’ in the absolute or in the abstract.
That is why Article 31 of the Vienna Convention refers to ‘good faith’ and to the ordinary meaning ‘to be given’ to the terms of the treaty ‘in#p#分頁標(biāo)題#e#
their context and in the light of its object and purpose’. It is, therefore, a fully qualified ‘ordinary meaning’.
24. Above n 2, Section H(2)(c), text corresponding to 66.
25. Sinclair, above n 9, at 121. Waldock (speaking during the Vienna Conference of the ILC's intention) noted that: ‘There had certainly been
no intention of discouraging automatic recourse to preparatory works for the general understanding of a treaty’, Vienna Conference
Records, First Session, 33rd Meeting, 184. Sinclair also notes that no rigid sequential limitation on resort to travaux by their categorization
as ‘supplementary means’ was intended, Sinclair, above n 9, at 116, citing H. W. Briggs, ‘The travaux p#éparatoires of the Vienna
Convention on the Law of Treaties’, 65 AJIL 705 (1971) at 709.
26. ILC Commentary, above n 9, at 220, although the ILC treated interpretations on the text demonstrably agreed before its conclusion as
part of the treaty itself, ibid, at 221.
27. Jacobs, above n 9, at 334.
28. Ibid, at 334; see also Sinclair, above n 9, at 119.
29. WTO Panel Report, United States -- Transitional Safeguard Measure on Combed Cotton Yarn from Pakistan (United States -- Combed
Cotton Yarn from Pakistan), WT/DS192/R, circulated 31 May 2001, adopted (as modified) on 5 November 2001, at para 7.46. On appeal,
the United States argued that the Panel should have interpreted the definition of the domestic industry within the four corners of the ATC
without having recourse to the wider context of other agreements of the WTO containing a definition of the domestic industry. The
Appellate Body disagreed, and accepted the contextual significance of Article III.2 of the GATT 1994, WTO Appellate Body Report, United
States -- Transitional Safeguard Measure on Combed Cotton Yarn from Pakistan, WT/DS192/AB/R, adopted 5 November 2001, para 94.
30. Cameron and Gray, above n 2, at 255.
31. Panel Report, US -- Copyright Act, above n 9, para 6.45.
32. Ibid, at para 6.46.
33. In 1964, Waldock noted the conflicting International Court of Justice decisions on this point, but preferred the view that an agreed
statement or understanding prior to conclusion should be regarded as an interpretative statement and therefore part of context, rather
than as part of the travaux p#éparatoires: Waldock Report, above n 12, at 58; ILC Commentary, above n 9, at 221, though citing a formal
Declaration. Sinclair doubts this, but notes that such a statement may still be very weighty when analysed under Article 32 as
supplementary means: Sinclair, above n 9, at 130. In Maritime Delimitation and Territorial Questions between Qatar and Bahrain,
Jurisdiction and Admissibility (First Phase), Judgment, ICJ Reports 1994, 112, the International Court of Justice found that the Minutes of
a meeting between Foreign Ministers constituted a binding agreement (see at 122, para 130) -- but see the strong dissent of Judge Oda#p#分頁標(biāo)題#e#
to the 1995 Judgment on the same issue (Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and
Admissibility (Second Phase), Judgment, ICJ Reports 1995, 6 at 46, para 15ff).
34. Sinclair, above n 9, at 129-30.
35. Above n 5.
36. At n 142.
37. See below n 75.
38. ILC Commentary, above n 9, at 222.
39. Ibid.
40. Appellate Body Report, Japan -- Alcohol, above n 2, at 20.
41. WTO Appellate Body Report, United States -- Import Prohibition of Certain Shrimp and Shrimp Products (US -- Shrimp ), WT/DS58/AB/R,
adopted 6 November 1998, at paras 116-17.
42. Ibid, para 17.
43. See Sinclair, above n 9, at 130.
44. See, for example: Sinclair, above n 9, at 127-28; Gerald Fitzmaurice, ‘The Law and Procedure of the International Court of Justice
1951-4: Treaty Interpretation and Other Treaty Points’ 33 British Yearbook of International Law 203 (1957) 228; US Nationals in Morocco,
ICJ Reports 1952, 196.
45. Such as Art 3.2 on the goal of security and predictability of trade relations; see, for example, Appellate Body Report, EC -- Computer
Equipment, above n 6, para 82: ‘we agree with the Panel that the security and predictability of “the reciprocal and mutually advantageous
arrangements directed to the substantial reduction of tariffs and other barriers to trade” is an object and purpose of the WTO Agreement,
generally, as well as of the GATT 1994’.
46. See, for example; Appellate Body Report, US -- Gasoline, above n 2, at 17ff; WTO Appellate Body Report, Argentina -- Safeguard
Measures on Imports of Footwear (Argentina -- Footwear Safeguards ), WT/DS121/AB/R, adopted 12 January 2000, para 91.
47. The ‘overall object and purpose’, as the Appellate Body in Japan -- Alcohol, above n 2, referred to it, although it then referred to the object
and purpose of a particular provision, Article III:2 (pp 18ff). In WTO Appellate Body Report, European Communities -- Measures Affecting
Meat and Meat Products (EC -- Hormones ), WT/DS26/AB/R and WT/DS48/AB/R, adopted 13 February 1998, the Appellate Body said at
para 177: ‘Consideration of the object and purpose of Article 3 and of the SPS Agreement as a whole reinforces our belief …’.
48. Joel Trachtman, ‘The Domain of WTO Dispute Resolution’, 40(2) Harvard International Law Journal 333 (1999) at 360, citing Appellate
Body Report, US -- Shrimp, above n 41, at para 117.
49. Sinclair, above n 9 at 130-31.
50. ILC Commentary, above n 9, at 221.
51. Ibid, at 223.
52. Ibid, at 221.
53. WTO Panel Report, Brazil -- Measures Affecting Desiccated Coconut (Brazil -- Coconut ), WT/DS22/R, adopted (as modified) 20 March
1997, at para 255. The issue was not explicitly addressed on appeal. See Cameron and Gray, above n 2, at 259.
Page36
54. WTO Agreement, Article IX:2, considered below (76) in the context of ‘subsequent practice’.#p#分頁標(biāo)題#e#
55. Sinclair, above n 9, at 136, Mustafa K Yasseen, ‘L'interprétation des traités d'aprés la Convention de Vienne sur le Droit des Traités’, 151
Recueil des Cours 34 (1976-III) at 44.
56. Cameron and Gray, above n 2, at 263.
57. At text adjoining n 81 and following.
58. Such as the incorporated reference to the Lomé Convention considered by the WTO Appellate Body in European Communities -- Regime
for the Importation, Sale, and Distribution of Bananas (EC -- Bananas ) WT/DS27/AB/R, adopted 25 September 1997, at para 167. The
EC -- Bananas Panel had previously considered the same issue at para 7.98 of its Report. Both found that as a reference to the Lomé
Convention was incorporated into the Lomé waiver, the meaning of the Lomé Convention became a GATT/WTO issue, at least to that
extent. See also Cameron and Gray, above n 2, at 268.
59. This provision can itself raise some difficult interpretational issues, and there is more of a question about the extent to which it constitutes
customary international law than exists for Articles 31 and 32, as well as some issues about how the time-based hierarchy operates: see,
e.g. Michael Lennard, ‘The World Trade Organization and Disputes Involving Multilateral Environmental Agreements’ European
Environmental Law Review, November 1996, 306 at 308; Joost Pauwelyn, ‘The Role of Public International Law in the WTO: How Far
Can We Go?’ 95 AJIL 535 (2001) at 545-46.
60. WTO Panel Report, United States -- Section 211 Omnibus Appropriations Act of 1998 (US -- Section 211 ), WT/DS176/R, circulated 6
August 2001, at para 8.82. In an as yet unadopted Report (circulated 2 January 2002) the Appellate Body considered the Panel's
interpretation of the relevant provision as contrary to Article 31, but did not address the Article 31(3)(c) point; see n 182 below and
accompanying text.
61. The Vienna Convention Drafting Committee rejected an Australian drafting suggestion to replace ‘subsequent agreement’ with
‘agreement’ on this basis: para 112; Vienna Conference Records, First Session, above n 11, 74th Meeting at 442.
62. See n 107 below and note especially Case Concerning Kasikilil Sedudu Island (Botswana/Namibia ), above n 2, at para 18, where the ICJ
applied Vienna Convention rules (as an expression of customary international law) to an 1890 treaty. The court indicated in its judgment
that the Parties to the dispute had agreed to this (para 18) but Judge Oda, in his separate opinion, nevertheless strongly criticized the
majority judgment's reliance on Vienna Convention rules (para 4).
63. Jacobs, above n 9, at 327-29.
64. ILC Commentary, above n 9, at 221, para 15.
65. Fitzmaurice (1957), above n 44, at 211, also cited in Waldock Report, above n 12, at 55, 267.
66. See, for example: Arnold D. McNair, The Law of Treaties (Oxford: Clarendon Press 1961) at 424-31; Fitzmaurice 1957, above n 44, at#p#分頁標(biāo)題#e#
211-12; Sinclair, above n 9, at 134-38; Robert Jennings and Arthur Watts (eds) Oppenheim's International Law, 9th ed. (London:
Longman, 1992) Vol 1 at 1274-75, including 20. International tribunals have long recognized subsequent practice as ‘objective evidence
of the understanding of the parties as to the meaning of the treaty’: Report of the Commission to the General Assembly, Yearbook of the
International Law Commission, 1964, Vol II, 203.The ICJ has relied on subsequent practice frequently, as noted, for example, by the
Court in Case Concerning Kasikili v Sedudu Island (Botswana/Namibia ), above n 2, at para 50, although Jacobs, above n 9 at 327-29,
considered that this was as a supplementary means only, not a primary means, as in the Vienna Convention.
67. Sinclair, above n 9, at 138; Yasseen, above n 55 at 52.
68. At text adjoining n 81 and following.
69. Fitzmaurice 1957, above n 44, at 211-12, cited in Waldock Report, above n 12 at 55.
70. Panel Report, Brazil - Coconut, above n 53, at para 256. The issue was not explicitly addressed on appeal. See Cameron and Gray,
above n 2 at 259.
71. Appellate Body Report, above n 2 at 13. Cited by the Panel in Canada - Term of Patent Protection (Canada - Patents), WT/DS170/R,
adopted 12 October 2000 at 22, 48. The Canada - Patents Panel originally wrote in its Interim Report that there was insufficient evidence
of this, but in its Final Report the Panel found it unnecessary to decide the issue.
72. See the discussion in Cameron and Gray, above n 2 at 274, citing, in particular, Ernst-Ulrich Petersmann, The GATT/WTO Dispute
Settlement System (London: Kluwer 1997) at 3.
73. See generally David Palmeter and Petros C Mavroidis, ‘The WTO Legal System: Sources of Law’ 92 AJIL 398 (1998); Cameron and
Gray, above n 2, at 252.
74. The relevance of the practice of a lesser number of Members falls more into issues of ‘acquiescence’ or ‘estoppel’, which are considered
below at text adjoining n 298.
75. ILC Commentary, above n 9, at 222.
76. WTO Agreement, Article IX:2 provides that: ‘a decision to adopt an interpretation shall be taken by a three-fourths majority of the
Members. This paragraph shall not be used in a manner that would undermine the amendment provisions in Article X. 3’. See also Article
3.9 of the Dispute Settlement Understanding, preserving Members' rights to seek authoritative interpretations under the Agreements, but
not through a mechanism of Appellate Body advisory opinions.
77. WTO Appellate Body Report, United States - Restrictions on Imports of Cotton and Man-made Fibre Underwear (US - Underwear ),
WT/DS24/AB/R, adopted (as modified) 25 February 1997, Section IV, p 19: ‘It is much too early for practice to have arisen under the ATC
[Agreement on Textiles and Clothing] regime which commenced only on 1 January 1995’. [parenthesis added]#p#分頁標(biāo)題#e#
78. Articles 34 and 35.
79. John H. Jackson, ‘Dispute Settlement and the WTO: Emerging Problems’ in John H. Jackson, The Jurisprudence of GATT and the WTO:
Insights on Treaty Law and Economic Relations (Cambridge, UK: Cambridge University Press 2000), 168 at 186. The Chapter is based
on an Article of the same name at 1 JIEL 329 (1998).
80. Such as the limited likelihood that the necessary three-quarters of the WTO Membership needing to agree an authentic interpretation will
even be present at the relevant WTO meetings: see Jackson, Emerging Problems, above n 79 at 186.
81. In Brazil - Export Financing Programme for Aircraft, Recourse to Arbitration by Brazil WT/DS46/ARB, Report of 28 August 2000, the
Arbitrators noted, at 48, Canada's argument that the International Law Commission Draft Articles on State Responsibility were not
‘relevant rules of international law applicable to the relations between the parties’ within the meaning of Article 31.3(c) of the Vienna
Convention. The Arbitrators noted, however, that it only used the Draft Articles ‘as an indication of the agreed meaning of certain terms in
Page37
general international law’.In US - Section 110(5), above n 9, the Panel took comfort at para 6.55 from state practice on a ‘minor
exceptions’ doctrine, but noted at 58 that: ‘[b]y enunciating these examples of state practice we do not wish to express a view on whether
these are sufficient to constitute “subsequent practice” within the meaning of Article 31(3)(b) of the Vienna Convention’.
82. Oppenheim, above n 66, at 1274.
83. Idem. See also Rights of Passage (Preliminary Objections) ICJ Reports 1957, 125 at 142: ‘[I]t is a rule of interpretation that a text
emanating from a Government must, in principle, be interpreted as producing and as intended to produce effects in accord with existing
law and not in violation of it.’
84. See, for example, Sinclair, above n 9, at 119.
85. Jacobs above n 9 at 332, 58.
86. See the discussion at Sinclair, above n 9, at 138-39.
87. Palmeter and Mavroidis, above n 73, at 411.
88. Gabrielle Marceau, ‘A Call for Coherence in International Law: Praises for the Prohibition against ‘Clinical Isolation’ in WTO Dispute
Settlement’ 33(5) Journal of World Trade 87 (1999) at 125.
89. Above, n 38.
90. Idem.
91. Ibid, at 119.
92. Ibid, at 123.
93. Idem differentiating the position under the GATT 1947 on this basis.
94. See, for example, Article 66 and the Annex.
95. See, for example, Vienna Convention, Articles 19 to 23.
96. As to which, see WTO Agreement, Article XVI:5. There are few opportunities given for reservations to WTO agreements without the
agreement of other Parties.
97. Vienna Convention, Article 41.
98. Above n 88, at 125.
99. Above n 38.#p#分頁標(biāo)題#e#
100. See also Pauwelyn, above, n 59 at 576.
101. Marceau, above, n 88, at 125.
102. See n 317 below.
103. See, e.g. Pauwelyn, above, n 59, at 567.
104. At text accompanying n 298 below.
105. Marceau, above, n 88, at 124.
106. ILC Commentary, above n 9, at 222. Waldock noted that the ILC abandoned any attempt to deal with the point, ‘realizing that it would
have involved entering into the whole relationship between treaty law and customary law’: Vienna Conference Records, First Session,
above n 11, 33rd Meeting at 184 (Waldock).
107. Oppenheim, above n 66, supports this rule as the starting point at least, at 1281-82, especially at 31; see Fitzmaurice (1957), above n 44,
at 212 and Sinclair, above n 9, at 124, to the same effect. In a separate opinion in Gabcikovo-Nagymaros Project (Hungary/Slovakia),
Judgment, 25 September 1997, ICJ Reports 1997, 7 at 113-14, however, Weeramantry J of the ICJ noted that the Vienna Convention
offered very little guidance regarding intertemporality; he considered that, at least as to environmental matters:Environmental concerns
are live and continuing concerns whenever the project under which they arise may have been inaugurated. It matters little that an
undertaking has been commenced under a treaty of 1950, if in fact that undertaking continues in operation in the year 2000. The relevant
environmental standards that will be applicable will be those of the year 2000.As this Court observed in the Namibia case, ‘an
international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the
interpretation’ (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding
Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, 31, para 53), and these principles are ‘not limited to the
rules of international law applicable at the time the treaty was concluded’ [citing Oppenheim, above n 66, at 1275, 21].
108. Article 38 of the Statute of the International Court of Justice, which is regarded as a statement of the sources of international law (whether
exhaustive or not) provides that the Court shall apply: ‘international conventions, whether general or particular, establishing rules
expressly recognized by the contesting states’, ‘international custom, as evidence of a general practice accepted as law’, ‘the general
principles of law recognized by civilized nations’, and (subject to decisions of the ICJ having no binding force except between the parties
and in respect of the particular case) ‘judicial decisions and the teachings of the most highly qualified publicists of the various nations, as
subsidiary means for the determination of rules of law’.
109. Palmeter and Mavroidis, above n 73, at 399ff. Article 7 of the Dispute Settlement Understanding provides, relevantly to that view, that#p#分頁標(biāo)題#e#
Panel terms of reference include, unless otherwise agreed: ‘To examine, in the light of the relevant provisions in (name of the covered
agreement(s) cited by the parties to the dispute), the matter referred to the DSB by (name of party) in document … [and to] address the
relevant provisions in any covered agreement or agreements cited by the parties to the dispute.’
110. Marceau, above n.88, at 109-11.
111. Ibid, at 111.
112. In the Guatemala - Cement Panel proceedings, Guatemala submitted (above n 81, page 133, paras 6.382-.683) that the ‘principle of
harmless error’ should be taken account of as one of the ‘general principles of law recognized by civilized nations’ referred to in Article 38
of the Statute of the International Court of Justice, but the Panel did not rely on that in its Report. See also the arguments of Canada
outlined at para 60 of Appellate Body Report, EC - Hormones, above n 47.
113. Above n 108.
114. ILC Commentary, above n 9, at 222.
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115. ‘Covered agreements’ are defined as the agreements covered by the Dispute Settlement Understanding; Article 1.1 and Appendix 1 of
the Dispute Settlement Understanding ; see Marceau, above n 88, 110.
116. See, for example, Pauwelyn, above n 59
117. Idem especially at 537 and 541-42, and authorities cited therein, including McNair, above n 66, at 466, and Hersch Lauterpacht,
‘Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties’, 26 British Yearbook of International Law, 48
(1949) at 76.
118. McNair, above n 66 at 466; citing The Pinson Claim, United Nations, Reports of International Arbitral Awards, 1928, v 327.
119. Ibid at 1.
120. Appellate Body Report, EC - Hormones, above n 47, at Part VI para 123, though without addressing the Panel's reliance on Article 3.2 of
the Dispute Settlement Understanding to bring this in.
121. Appellate Body Report, US - Shrimp, above n 41, at 110.
122. Appellate Body Report, EC - Bananas, above n 58, para 10.
123. See below, text accompanying 189.
124. Pauwelyn, above n 59, at 541-42, citing in particular: Permanent Court of International Justice, Chorzów Factory (Germany v Poland)
Merits, PCIJ Reports 1928 PCIJ Series A No 17, at 29; ICJ, Legal Consequences for States of the Continued Presence of South Africa in
Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, Judgment, ICJ Reports 1971, 16
at 47, para 96; Elettronica Sicula SpA (ELSI) (US v Italy), ICJ Reports 1989, 15 at 42, para 50; Iran-United States Claims Tribunal, Amoco
International Finance Corp v Iran, 15 Iran - US Claims Tribunal Reports 1987, 189, para 112 (1987); Oppenheim, above n 66 at 1275;
McNair, above n 66 at 466.
125. Pauwelyn, above n 59, at 538.
126. Above, n 3.#p#分頁標(biāo)題#e#
127. WTO Panel Report, Korea - Measures Affecting Government Procurement, WT/DS163/R (adopted 19 June 2000), at 753 to para 7.96.
128. Ibid, at para 7.96 and paras 7.123-.126. See also Pauwelyn, above n 59 at 543.
129. At n 85.
130. Pauwelyn, above n 59 at 537-38. See also, generally, Michael Akehurst, ‘The Hierarchy of the Sources of International Law’, 47 BYBIL
273 (1974-75).
131. Although it might look to more developed systems, as the ones more likely to address a particular trade law issue, and find that the lack of
such coverage in less developed systems cannot be taken as a rejection of such general principles. This is probably especially likely
where the general principle is found amongst the different ‘families’ of law, such as civil and common law systems.
132. Ian Brownlie, Principles of Public International Law, 5th ed (Oxford: Clarendon Press 1998) 17-18.
133. Ibid., at 16.
134. Vladimir Duro Degan, Sources of International Law (The Hague: Martinus Nijhoff Publishers 1997) at 5 and 17ff.
135. Pauwelyn, above n 59, sees general principles of law as having an equal status also, since all are founded in the consent of States: ‘[a]s
they derive from the same source (essentially state consent), they must in principle be equal in value’ - at 536), while Degan recognizes
that general principles are mentioned in Article 38(1) of the ICJ Statute in a way that indicates they are a main, rather than subsidiary
source (above n 134, at 5).Akehurst, however, only sees reference to general principles as relevant to fill gaps in treaties and customary
international law (above n 130, at 279) and notes that nearly all writers say that customary international law or treaties override the
general principles in the event of a conflict. Brownlie notes that general principles are not listed as ‘subsidiary’ sources of international
law, but he recognizes a less direct connection with the consent of States than exists for treaties or customary international law: Brownlie,
above n 132, at 15.In a 1953 review of a book by Bin Cheng (General Principles of Law as applied by International Courts and Tribunals
(London: Stevens and Sons 1953)) that has been significantly relied on by the Appellate Body (see below, n 254) Eli Lauterpacht saw
such general principles as introducing a valuable element of flexibility but as subsidiary to customary law, and adverted to the fact that the
terminology used in this area often confuses customary international law and general principles of law ‘Review’, 30 BYBIL 544 (1953) at
544-45. The scanty WTO jurisprudence has not directly addressed this issue, but thus far seems most consistent with the Pauwelyn view.
136. Note especially the comments of the United States Representative: Vienna Conference Records, First Session, above n 11, 31st Meeting
at 168, and of the Austrian Representative, ibid, 33rd Meeting at 179.#p#分頁標(biāo)題#e#
137. Ibid, 33rd Meeting, 184 (Waldock).
138. ILC Commentary, above n 9, at 222; Sinclair, above n 9, at 126.
139. McNair, above n 66, at 467.
140. See below, n 317.
141. ILC Commentary, above n 9, at 223.
142. This seems to be the logical result of the Vienna Convention, although Vice President Schwebel of the ICJ, in a dissenting opinion in
Qatar and Bahrain, Jurisdiction and Admissibility, Judgment (1995), above n 33, expressed the view, at 39 (after discussing the travaux of
the Vienna Convention on this point at 31-32) that the majority was in error to discount the travaux p#éparatoires on the ground that they
do not confirm the meaning to which its Article 31 analysis has led. He considered that:such a view would be hard to reconcile with the
interpretation of a treaty ‘in good faith’ which is the cardinal injunction of the Vienna Convention's rule of interpretation. The travaux
p#éparatoires are no less evidence of the intention of the Parties when they contradict as when they confirm the allegedly clear meaning
of the text or context of treaty provisions.This comment appears to mirror in some respects the United States approach unsuccessfully
argued at the 1969 Vienna Conference (see above 11) but it now seems hard to reconcile with the outcomes of that Conference.
143. Even though in Belgium et al. v Federal Republic of Germany (Young Loan Arbitration) 59 International Law Reports (1980), 495 at 544 it
was considered that travaux should normally be restricted to written materials. There could obviously be significant issues as to the
weight and relevance of such evidence. Waldock saw the ‘circumstances of its conclusion’ as referring to ‘both the contemporary
circumstances and the historical context in which the treaty was concluded’: Waldock Report, above n 12, at 59.
144. ILC Commentary, above n 9, at 223.
145. Vienna Conference Records, First Session, above n 11, 33rd Meeting at 178. See also McNair, above n 66, at 412ff; Jacobs, above n 9 at
Page39
339ff; and Oppenheim, above n 66 at 1277.
146. See above 25 and accompanying text.
147. WTO Appellate Body Report, Canada - Certain Measures Concerning Periodicals (Canada - Periodicals), WT/DS31/AB/R, adopted 30
July 1997. The Appellate Body (although not specifically referring to the Vienna Convention or to ‘supplementary means’) supported its
‘textual interpretation’ by reference to certain discussions in: ‘the Reports of the Committees and Principal Sub-Committees of the Interim
Commission for the International Trade Organization concerning the provision of the Havana Charter for an International Trade
Organization that corresponds to Article III:8(b) of the GATT 1994’ (text adjoining fn 73).
148. The Panel did not consider it necessary to review all the documents relating to the negotiation of the Havana Charter and the GATT,#p#分頁標(biāo)題#e#
since its analysis under Article 31 of the Vienna Convention had not left the meaning of Article VI ambiguous or obscure and had not led
to a manifestly absurd or unreasonable result. It did, however, look to the Report of the Working Party on Modifications to the General
Agreement, which was adopted by the Contracting Parties on 1-2 September 1948: WTO Panel Report, United States - Anti-Dumping
Act of 1916 - Complaint By the European Communities, WT/DS136/R, adopted 26 September 2000, at paras 6.201-.202. The Panel
Report was upheld on appeal, but this issue was not addressed.
149. WTO Panel Report, United States - Safeguard Measures on Imports of Fresh, Chilled or Frozen Lamb Meat from New Zealand and
Australia (US - Lamb), WT/DS177/R and WT/DS178/R, adopted (as modified) 16 May 2001, para 7.110ff.
150. Page 89, para 8.64ff, especially at fn 155. At para 8.64, the Panel noted:Pursuant to Article 32 of the Vienna Convention, negotiating
history can thus be invoked as a supplementary means of interpretation, to confirm a conclusion reached on the basis of a textual and
contextual analysis of a treaty. We therefore consider it useful to review the negotiating history of SCM Article 1 generally and its ‘financial
contribution’ requirement in particular.
151. WTO Panel Report, Korea - Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/R and WT/DS169/R, adopted (as
modified) 10 January 2001, at para 539.
152. Appellate Body Report, EC - Computer Equipment, above n 6, para 89.
153. Although it noted, ibid, at 72, that in reply to its questions at the oral hearing, both the European Communities and the United States had
accepted the relevance of the Harmonized System and its Explanatory Notes in interpreting the relevant tariff concessions.
154. Ibid, at para 91ff.
155. Ibid, at para 86; see also Appellate Body Report, Japan - Alcohol, above n 2, p 10, and the Panel Report in United States - Combed
Cotton Yarn from Pakistan, above n 29, at para 7.20.
156. Oppenheim, above n 66, at 1278, 14.
157. Idem, citing Italy - United States Air Transport Arbitration 45 (1965) ILR 45, at 393, 417.
158. Above, text corresponding to n 78.
159. See, for example, Territorial Jurisdiction of the International Commission of the River Oder, PCIJ Reports 1929 Series A No 23. See also
on the issue Sinclair, above n 9, at 142-44; McNair, above n 66 at 420-21; consideration by the majority in Young Loan Arbitration (above
n 143) at 544-45.
160. Oppenheim, above n 66, at 1278; Sinclair, above n 9, at 144. Waldock had similar doubts: Waldock Report, above n 12, at 58-59. See
also ILC Commentary, above n 9, at 223, where the ILC doubted if the River Oder ruling reflected ‘actual practice’. In Fothergill v Monarch
Airlines [1981] AC 251 (United Kingdom House of Lords) Lord Wilberforce (at 278) and Lord Fraser (at 287) suggest the travaux must be#p#分頁標(biāo)題#e#
public to be relied on.
161. Aerial Incident Case, ICJ Reports 1959, 127.
162. Italy v Federal Republic of Germany Arbitration, 29 International Law Reports (1959), 442 at 448, 460 ff (but note that this adopts an
explicitly ‘teleological’ approach to interpretation which no longer appears to conform - even if it did then conform - to accepted norms of
treaty interpretation) and Greece (in behalf of Apostalidis) v Federal Republic of Germany Arbitration 34 International Law Reports (1960),
219 at 242-45. Note, however, that this latter decision was influenced considerably by Italy v Federal Republic of Germany.
163. Appellate Body Report, United States - Combed Cotton Yarn from Pakistan, above n 29, at para 79.
164. Para 7.110 ff.
165. http://www.wto.org/english/docs--e/docs--e.htm (visited on 7 January 2002).
166. John H. Jackson, ‘WTO Dispute Procedures, Standard of Review, and Deference to National Governments’ in Jackson (2000), above n
79, 133 at 144-45, 37. The relevant Chapter is based on the Article of the same name by Steven P. Croley & John H. Jackson, at 90 AJIL
193 (1996).
167. Above, text accompanying n 143.
168. See McNair, above n 66, at 421-22.
169. Appellate Body Report, US - Shrimp, above n 41, at 152-55 to para 157.
170. E/PC/T/C.II/32 of 30 October 1946 (cited at 154); E/PC/T/C.II/50 and E/PC/T/C.II/54/Rev I of 28 November 1946 (cited at 155).
171. While the levels of generally available internet access vary hugely from country to country, it can probably be assumed that accessibility
on the WTO website, with its large number of available documents and very effective search engine, means that the materials are
sufficiently available to the countries themselves (that is, to their governments).
172. At para 157, 152.
173. Report of the GATT 1947 Panel, United States - Imposition of Countervailing Duties on Imports of Fresh and Chilled Atlantic Salmon from
Norway, adopted by the Committee on Subsidies and Countervailing Measures on 28 April 1994 (SCM/153): para 51, 33. See also
Report of Panel on EEC - Member States' Import Regime for Bananas, DS32/R, 1993, unadopted, as well as the discussion in Kuyper,
above n 3, at 230.
174. Report of the GATT 1947 Panel, Panel on Import, Distribution and Sale of Alcoholic Drinks by Canadian Provincial Marketing Agencies,
adopted 22 March 1988 (L/6304-35S/37). The Panel states, at para 3.58: ‘Canada considered that given the lack of GATT jurisprudence
referring to Article XXIV: 12 it was necessary to analyse the drafting history to determine the basis on which contracting parties made their
decision on accession to the General Agreement.’
175. Ibid, para 4.20.
Page40
176. Above n 60.
177. Ibid, para 1.8.
178. Ibid, at para 6.3 and 88.
179. Kuyper, above n 3, at 229.#p#分頁標(biāo)題#e#
180. Under the principle of ‘effectiveness’ such evolutionary meanings may be taken account of (see text accompanying n 293 below) although
there could conceivably be a point where a new meaning given in the Paris Convention context is so far removed from the (objectively
ascertained) reasons for the incorporation of Paris Convention obligations in the GATS that the meaning would not be picked up by
reference in the GATS obligations. That is most unlikely to happen in practice.
181. Para 8.31.
182. WTO Appellate Body Report, United States - Section 211 Omnibus Appropriations Act of 1998 (US - Section 211 ), WT/DS176/AB/R,
adopted 1 February 2002, at paras 339-40.
183. Appellate Body Report, European Communities - Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R,
adopted 5 April 2001, at para 91, 62. See also Panel Report, US - Copyright Act, above n 9, at 204. Article 33(1) provides that: ‘When a
treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or
the parties agree that, in case of divergence, a particular text shall prevail’.
184. Above n 9, at 226.
185. Sinclair, above n 9, at 147-48. See also Jean Hardy, ‘The Interpretation of Plurilingual Treaties by International Courts and Tribunals’ 37
British Yearbook of International Law 72 (1961). Hardy, writing before the Vienna Convention was finalized, but examining the relevant
customary international law that the Vienna Convention is regarded as mirroring, noted that in the practice of international tribunals: ‘even
when a treaty contains a clause stipulating that the different texts shall be deemed equally authentic, the judge sometimes feels entitled to
establish an order of precedence among them, at least on a specific point, and to recognize the superiority of the original version’ (at 98)
and concluded that ‘the principle of the equality of texts is not sacrosanct and the judge can give preference to the original version’ in
some circumstances (at 151).
186. Above n 143 at 578-80. The Arbitral Tribunal cited, in particular, Peter Germer, ‘Interpretation of Plurilingual Treaties: A Study of Article 33
of the Vienna Convention on the Law of Treaties’ 11 Harvard International Law Journal 400 (1970). The majority agreed with Germer that
giving greater significance to the original drafting text over other authentic texts could not be valid under the terms of the Vienna
Convention Article 33 rule (at 418).
187. Article 31(1).
188. Article 26.
189. See for example, F. A. R. Bennion, Statutory Interpretation: A Code, 2nd ed (London: Butterworths 1992) at 873; Dennis C. Pearce,
Statutory Interpretation in Australia, 4th ed (Sydney: Butterworths 1996) 105.
190. McNair, above n 66, at 399-400.
191. As cited in Oppenheim, above n 66, at 1279-80.#p#分頁標(biāo)題#e#
192. Pearce, above n 189 at 105-06.
193. WTO Panel Report, United States - Definitive Safeguard Measures on Imports of Circular Welded Carbon Quality Line Pipe from Korea,
WT/DS202/R of 29 October 2001 (not yet adopted) (US - Line Pipe ) at para. 7.44 and 54. The issue was not addressed in the Appellate
Body report circulated on 15 February 2002.
194. At para 7.118. The Panel said, referring to footnote 59 of the Agreement on Subsidies and Countervailing Measures:The existence of
explicit ‘qualifying’ language in footnote 59 regarding deferral and double taxation serves to underline the absence of any explicit
statement in respect of the principle which the United States contends may be found in footnote 59. If the Members had desired to
exempt from the export subsidy prohibition certain exemptions from direct taxation that were specifically related to exports, they might
have been expected to do so explicitly.
195. See, for example, Attachment 1.5 (2nd Written EC Submission) to WTO Panel Report, United States - Imposition of Countervailing Duties
on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom (US - Lead and Steel), WT/DS138/R,
adopted 7 June 2000, at 130, para 81ff.
196. Appellate Body Report, EC - Hormones, above n 47, para 164, citing Appellate Body Report, US - Underwear, above n 77, at 17.
197. WTO Panel Report, Turkey - Restrictions on Imports of Textile and Clothing Products, WT/DS34/R, adopted (as modified) 19 November
1999, para 9.95; WTO Panel Report, Indonesia - Certain Measures Affecting the Automobile Industry (Indonesia - Auto), WT/DS54;
WT/DS55, WT/DS59, WT/DS64, adopted 23 July 1998, paras 14.28 (with extensive international law citations at 649 - extracted in part at
n 275 below) and 14.50.
198. Marceau, above n 88, at 127 and 131 in particular.
199. At Article 34. See Indonesia - Auto, above n 197 at para 14.28, 649, where it was accepted that the ‘the treaties concerned must have the
same parties’.
200. ILC Commentary, above n 9, at 219. The International Law Commission there noted, on the principle of ‘effectiveness’, that while such a
principle existed and was preserved by the Vienna Convention rules, it would only apply in limited circumstances, and expressed concern
lest a separate provision on effectiveness ‘might encourage attempts to extend the meaning of treaties illegitimately’. See also: Waldock
Report, above n 12 at 61; Sinclair, above n 9, at 118; Jacobs, above n 9, at 334.
201. ILC Commentary, above n 9, at 219; Sinclair, above n 9, at 118.
202. The principle has been applied by the ICJ in Corfu Channel, Merits, ICJ Reports 1949, 4 at 24-26, and also in Ambatielos, ICJ Reports
1952, 28. It was also applied by the Permanent Court of International Justice in Free Zones of Upper Savoy and the District of Gex case,#p#分頁標(biāo)題#e#
PCIJ Reports 1929, Series A, No 22, at 13.
203. See, for example, Fitzmaurice 1957, above n 44, at 211-12, cited in Waldock Report, above n 12, at 55-56.
204. Above n 71, at para 6.49.
205. Appellate Body Report, US - Gasoline, above n 2, 21. The Appellate Body cited, inter alia: Corfu Channel Case (above n 202); Territorial
Dispute Case (Libyan Arab Jamahiriya v Chad) ICJ Reports 1994, 23; ILC Commentary, above n 9, at 219; Oppenheim, above n 66, at
1280-81.
Page41
206. Panel Report, Indonesia - Auto, above n 197 at para 14.28. See also Panel Report, US - Section 211, above n 60, para 8.79, 122,
reaching the same conclusion.
207. Above n 2, at 12.
208. Appellate Body Report, Argentina - Footwear Safeguards, above n 46, para 88, 76. The Appellate Body cited its Report in US - Gasoline,
above n 2, at 23, its Report in Japan - Alcohol, above n 2, at 12, and its Report in Canada - Dairy, above n 6, para 133. The Appellate
Body Report on Argentina - Footwear Safeguards was itself cited by the Panel in US - Line Pipe, above n 193, para 7.44.
209. Appellate Body Report, Korea - Dairy, above n 6, paras 80-82.
210. See also: Appellate Body Report, Japan - Alcohol, above n 2, 12, 21; WTO Appellate Body Report, US - Underwear, above n 77, at 16;
Appellate Body Report, Canada - Dairy, above n 6, para 133; WTO Appellate Body Report, India - Patent Protection for Pharmaceutical
and Agricultural Chemical Products (India - Patents), WT/DS50/AB/R, adopted 16 January 1998, para 45.
211. At para 81. The passage cites para 81 of Appellate Body Report, Argentina-Footwear Safeguards, above n 46, which itself cites para 81
of its Report in Korea - Dairy, a curious example of passages in two unrelated Appellate Body Reports, circulated on the same day, being
relied on to mutually buttress each other.
212. Oppenheim, above n 66, at 1281. See also Interpretation of Peace Treaties (Second Phase) Advisory Opinion, ICJ Reports 1950, 221 at
229.
213. Above n 137.
214. Yearbook of the International Law Commission, 1964, Vol. II, 55 at 60; ILC Commentary, above n 9, at 219.
215. Article 19.2 of the DSU; see also Article 3.2 (see above n 2) and Article 3.9, which reserve the right of Members to seek authoritative
interpretations under the relevant WTO agreements. See also WTO Agreement, Article IX:2 (n 76 above) and Ernst-Ulrich Petersmann,
‘How to Promote the International Rule of Law? Contributions by the World Trade Organization Appellate Review System’, 1 JIEL (1998)
25 at 38-40.
216. WTO Appellate Body Report, United States - Measure Affecting Imports of Woven Wool Shirts and Blouses from India (US - Shirts and
Blouses), WT/DS33/AB/R, adopted 23 May 1997, at 18-19, cited in WTO Appellate Body Report, United States - Definitive Safeguard
Measures on Imports of Wheat Gluten from the European Communities (US - Wheat Gluten) WT/DS166/AB/R, adopted 19 January 2001,#p#分頁標(biāo)題#e#
at para 179.
217. See, for example, Petersmann, above n 215 at 38-40.
218. See for example, the discussion of ‘judicial activism’ by the European Court of Justice in Brown and Kennedy, above n 14, at 403-04.
219. Idem.
220. William J. Davey, ‘Has the WTO Dispute Settlement System Exceeded its Authority? A Consideration of Deference Shown by the System
to Member Government Decisions and Its use of Issue-Avoidance Techniques’, 4(1) JIEL 79 (2001).
221. Ibid, at 81 and 110.
222. Jackson, Emerging Problems, above n 79, at 170.
223. See text adjoining, n 293 below.
224. Jackson, above n 79, at 169ff.
225. Appellate Body Report, EC - Hormones, above n 47, at para 165 and 154. The Panel in US - Lamb, above n 149, cited this at 59 to para
7.16.
226. At 154, citing, inter alia: Oppenheim, above n 66, at 1278; Nuclear Tests Case (Australia v France) ICJ Reports 1974, 253 at 267; Access
of Polish War Vessels to the Port of Danzig, PCIJ Reports 1931 Series A/B, No 43, at 142; USA - France Air Transport Services
Arbitration, 38 International Law Reports (1963) 243; De Pascale Claim, 40 International Law Reports (1961) 250.
227. Oppenheim, above n 66, at 1278-79, and cases cited therein.
228. Idem (in the accompanying footnote, footnote 17). Cameron and Gray, above n 2, at p 258, 51, note some analogy to the doctrine of
‘margin of appreciation’ sometimes applied by the European Court of Human Rights.
229. Oppenheim, above n 66, at 1276, para 7.
230. Ibid, at 1278-79, 16.
231. Australia v France, ICJ Reports 1974, 253 at 267; New Zealand v France, ICJ Reports 1974, 457 at 472.
232. Oppenheim, above n 66, at 1278-79, 16.
233. Harris, above n 66, at 817.
234. McNair, above n 66, at 765.
235. Ibid, at 366.
236. Rudolf Bernhardt, ‘Interpretation in International Law’, in Bernhardt (ed), above n 315, 1416 at 1419 and 1421.
237. John H. Jackson, ‘The WTO “Constitution” and Proposed Reforms: Seven “Mantras” Revisited’, 4(1) JIEL 67 (2001) at 67 and 72.
238. Ibid, at 72.
239. See text accompanying 215 above. See also Jackson, above n 79, at 185-87.
240. See Appellate Body Report, Japan - Alcohol, above n 2, at 15. Relied on in WTO Panel Report, Korea - Beef, WT/DS161/R and
WT/DS169/R, adopted (as modified) 10 January 2001, p 121, para 498. In US - Lamb, above n 149, the Panel said (at 59): ‘We note in
this context the Appellate Body's statement that “[t]he principle of in dubio mitius applies in interpreting treaties, in deference to the
sovereignty of states”’.
241. See John H. Jackson, ‘The Great 1994 Sovereignty Debate: United States Acceptance and Implementation of the Uruguay Round
Results’ in Jackson 2000, above n 79, 367 at 371. The Chapter is based on Jackson's Article of the same name at 36 Columbia Journal#p#分頁標(biāo)題#e#
of Transnational Law 157 (1997).
Page42
242. Such as, for example, Article 6.12 of the WTO Antidumping Agreement, which provides that authorities: ‘shall provide opportunities for
industrial users of the product under investigation, and for representative consumer organizations in cases where the product is
commonly sold at the retail level, to provide information which is relevant to the investigation regarding dumping, injury and causality’.
243. Jackson, Emerging Problems, above n 79, 168 at 181-82.
244. Ibid, 180.
245. McNair, above n 66, at 366.
246. Sinclair notes that such principles and maxims cannot be applied automatically; their suitability in a particular case has to be analysed,
Sinclair, above n 9, at 153. See also the similar cautions expressed by Waldock in the Waldock Report, above n 12, at 54. Judge
Schwebel of the International Court of Justice has remarked that the principle of ‘effectiveness’, or any other interpretative principle,
cannot be relied on to render the ‘ascertainable intent’ shared by the parties into a factor of secondary importance, Case Concerning
Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Second Phase), Jurisdiction, ICJ Reports 1995, 6.
247. Appellate Body Report, India - Patents, above n 210, para 45ff. The Appellate Body said at paras 45-46:The Panel misapplies Article 31
of the Vienna Convention. The Panel misunderstands the concept of legitimate expectations in the context of the customary rules of
interpretation of public international law. The legitimate expectations of the parties to a treaty are reflected in the language of the treaty
itself. The duty of a treaty interpreter is to examine the words of the treaty to determine the intentions of the parties. This should be done
in accordance with the principles of treaty interpretation set out in Article 31 of the Vienna Convention. But these principles neither require
nor condone the imputation into a treaty of words that are not there or the importation into a treaty of concepts that were not
intended….The Panel in this case has created its own interpretative principle, which is consistent with neither the customary rules of
interpretation of public international law nor established GATT/ WTO practice. Both panels and the Appellate Body must be guided by the
rules of treaty interpretation set out in the Vienna Convention, and must not add to or diminish rights and obligations provided in the WTO
Agreement.
本文是有關(guān)世貿(mào)組織關(guān)于國際貿(mào)易英國交貨協(xié)定的相關(guān)條約解釋，由英國dissertation網(wǎng)提供資源，對英國留學(xué)生西方法律研究專業(yè)的人士有一定指導(dǎo)性作用。本站另提供#p#分頁標(biāo)題#e#英國留學(xué)生法律碩士dissertation指導(dǎo)服務(wù)248. Ibid, at paras 36 and 41-42.
249. Above n 6, at para 80.
250. Ibid, at para 84.
251. WTO Panel Report, India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/R, adopted (as modified)
on 16 January 1998, at para 7.22.
252. See, for example: Brown and Kennedy, above n 14, at 353-55; Paul Craig, ‘Substantive Legitimate Expectations in Domestic and
Community Law’, 55(2) Cambridge Law Journal (1996) 289; Cameron and Gray, above n 2, at 260ff; European Court of First Instance,
Case T-466/93 et al, O'Dwyer v Council [1995] ECR II-2071; ECJ, Case T-115/94 Opel Austria v Council [1997] ECR II-39; ECJ, Case
120/86 Mulder v Minister van Landbouw en Visserij [1988] ECR 2321; ECJ, Cases 104/89 and 37/90 Mulder v Council and Commission
Cases [1992] ECR I-3061; ECJ, Case 170/86 Von Deetzen v Hauptzollamt Hamburg-Jonas [1988] ECR 2355.
253. Appellate Body Report, US - Shrimp, above n 41, at para 158.
254. Ibid, at 156, citing Bin Cheng, General Principles of Law as applied by International Courts and Tribunals (London: Stevens and Sons
1953), at Chapter 4 generally and p 125 in particular; Jennings and Watts (eds), Oppenheim's International Law, 9th ed, Vol I (London:
Longman 1992), at 407-10, Border and Transborder Armed Actions Case, (1988) ICJ Rep. 105; Rights of Nationals of the United States
in Morocco Case (1952) ICJ Rep. 176; Anglo-Norwegian Fisheries Case (1951) ICJ Rep. 142. The passage from Bin Cheng cited by the
Appellate Body reads (with the emphasis added by that Body):… A reasonable and bona fide exercise of a right in such a case is one
which is appropriate and necessary for the purpose of the right (i.e. , in furtherance of the interests which the right is intended to protect).
It should at the same time be fair and equitable as between the parties and not one which is calculated to procure for one of them an
unfair advantage in the light of the obligation assumed. A reasonable exercise of the right is regarded as compatible with the obligation.
But the exercise of the right in such a manner as to prejudice the interests of the other contracting party arising out of the treaty is
unreasonable and is considered as inconsistent with the bona fide execution of the treaty obligation, and a breach of the treaty.
255. Ibid. Bin Cheng, at 125.
256. See ‘The Legal Meaning of a GATT Dispute Settlement Report: Some Reflections’ in Jackson 2000, above n 79, 118 at 132 (in a Chapter
based on a 1994 paper) where he notes that ‘ruleorientation’ had largely prevailed in the GATT context and that this ‘brings the GATT into
line with most other international dispute settlement procedures and appropriately focuses attention on the specific treaty obligations,
rather than general and arguable notions of “equity” or “nullification or impairment”’.In Frontier Dispute (Burkina Faso/Republic of Mali)#p#分頁標(biāo)題#e#
Judgment, ICJ Reports 1986, 551 at 633, the International Court of Justice has noted that, apart from the case of a decision ex aequo et
bono reached with the assent of the Parties, ‘it is not a matter of finding simply an equitable solution, but an equitable solution derived
from the applicable law’ (citing Fisheries Jurisdiction Case, ICJ Reports 1974, 3 at 33, para 78) [original reference].
257. See, for example, Lauterpacht's 1953 review of Bin Cheng's book, above n 135.
258. See, e.g. Akehurst, above n 130, at 279.
259. Alexandre Kiss, ‘Abuse of Rights’ in Bernhardt (ed), above n 315, 4 at 6.
260. Idem.
261. Border and Transborder Armed Actions (Nicaragua v Honduras) Jurisdiction and Admissibility, ICJ Reports 1988, 65 at 105, para 94;
Rights of Nationals of the United States in Morocco , Judgment, ICJ Reports 1952, 176; Anglo-Norwegian Fisheries Case , Judgment, ICJ
Reports 1951, 116 at 142.
262. Border Actions, above n 261, at 105, para 94.
263. Appellate Body Report, US - Foreign Sales Corporations, above n 310, para 166.
264. Above n 259, at 5.
265. At text accompanying, n 298.
266. In its extreme form, this can take the form of the theory of ‘emergent purpose’ where the object and purpose is regarded as emerging or
altering over time, leaving, in effect, no fixed point of reference for the intention of the treaty negotiators; see Sinclair, above n 9, at 131.
267. McNair, above n 66, at 219; see also Fitzmaurice 1957, above n 44, at 236-38; Sinclair, above n 9, at 93.
268. Bennion, above n 189, for example, discusses ‘generalia specialibus non derogant’ at 205ff, but treats the issue as part of the larger
principle that an instrument should be read as a whole when provisions in the same text are being compared, at 805ff.
269. Appellate Body Report, above n 58, para 204.
Page43
270. For example, paras 5.1128ff, 5.202ff, 5.265ff, 5.357ff.
271. At para 14.36.
272. At para 14.28, 549.
273. WTO Panel Report, United States - Tax Treatment for ‘Foreign Sales Corporations ’, WT/DS108/R, adopted (as modified) on 20 March
2000, at para 4.468.
274. United Nations, United Nations Conference on the Law of Treaties, Official Records of the Second Session (UN Doc Conf 39/11 Add 1)
253.
275. The Panel in its Report on Indonesia - Auto, above n 197, noted at 649 that:… ‘[T]echnically speaking, there is a conflict when two (or
more) treaty instruments contain obligations which cannot be complied with simultaneously …. Not every such divergence constitutes a
conflict, however …. Incompatibility of contents is an essential condition of conflict’ (7 Encyclopedia of Public International Law
(North-Holland, 84), p 468). The lex specialis derogat legi generali principle ‘which [is] inseparably linked with the question of conflict’#p#分頁標(biāo)題#e#
(Idem, p 469) between two treaties or between two provisions (one arguably being more specific than the other), does not apply if the two
treaties ‘… deal with the same subject from different points of view or [is] applicable in different circumstances, or one provision is more
far-reaching than but not inconsistent with, those of the other’ (Wilfred Jenks, ‘The Conflict of Law-Making Treaties’, The British Yearbook
of International Law 1953, at 425 et seq ). For in such a case it is possible for a state which is a signatory of both treaties to comply with
both treaties at the same time. [original citations]
276. WTO Panel Report, United States - Anti-Dumping Act of 1916 - Complaint By Japan, WT/DS162/R, adopted 26 September 2000, at
para 6.269:However, we view the Appellate Body statement as applying the general principle of international law lex specialis derogat legi
generali. This is particularly clear from its remark that the Agreement on Import Licensing Procedures ‘deals specifically, and in detail,
with the administration of import licensing procedures’. In our opinion, Article VI and the Anti-Dumping Agreement ‘deals specifically, and
in detail, with the administration of’ anti-dumping. [original emphasis]
277. Australia v France, ICJ Reports 1974, 253 at 267; New Zealand v France, ICJ Reports 1974, 457 at 472.
278. Ibid, paras 43 and 46 (Australia v France ); paras 46 and 49 (New Zealand v France ). See Alfred P. Rubin, ‘The International Legal
Effects of Unilateral Declarations’, 71 AJIL, 1 (1977) at 2, 9-10.
279. Nicaragua v United States (Merits) ICJ Reports 1986, 14 at 132 (para. 261); Burkino Faso v Mali (Judgment of Chamber) ICJ Reports
1986, 554 at 573-74 (paras 39-40). See also Brownlie, above n 132, at 644.
280. Panel Report, US - Trade Act, above n 9, at para 7.118.
281. At 692.
282. Idem.
283. At paras 7.121-.125.
284. At para 7.126.
285. Rubin, above n 278, at 3. Presumably this would only apply in respect of the particular parties and matter before the tribunal.
286. Idem.
287. http://www.icj-cij.org
288. Thomas Franck, ‘Word Made Law: The Decision of the International Court of Justice in the Nuclear Tests Cases’, 69 AJIL , 612 (1975) at
618. New Zealand in fact sought to re-open proceedings some 20 years later, but was unsuccessful for reasons not presently relevant:
Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 (New
Zealand v France) ICJ Reports 1995, 288 at 305-07.
289. Above n 148, at para 6.63.
290. Note, however, Franck's comment that where, for example, the President of the United States was endowed with the ostensible as well as
constitutional authority to make such a commitment, the subsequent action of Congress in limiting the President's power in carrying out#p#分頁標(biāo)題#e#
his promise would be irrelevant to vested international legal rights: Franck, above n 288, at 620.
291. The Panel noted (at para 6.63) that this latter aspect: ‘would not be essential if the statements had been made in an international forum,
where the executive branch represents the State. However, in the present case, the statements were addressed to the US legislative
branch. Therefore, we cannot consider them as creating obligations for the United States under international law’.
292. Appellate Body Report, US - Shrimp, above n 41, at para 153.
293. Ibid, at para 130.
294. Idem, drawing upon the language and jurisprudence of the International Court of Justice. The Appellate Body cited: Namibia (Legal
Consequences) Advisory Opinion, ICJ Reports 1971, 31; Aegean Sea Continental Shelf Case, ICJ Reports 1978, 3; Oppenheim, above n
66, at 1282, and E. Jimenez de Arechaga, ‘International Law in the Past Third of a Century’, 159 Recueil des Cours 1 (1978-I) 49.
295. Sinclair, above n 9, at 139.
296. Appellate Body Report, US - Shrimp, above n 41, at para 130.
297. See Jackson, Emerging Problems, above n 79, at 179.
298. Such as because it is not accepted as a valid interpretation by some WTO Members.
299. Brownlie, above n 132, at 17-18.
300. Kuyper, above n 3, at 231.
301. Idem, at 15.
302. As it was ‘part of the historical background of the concessions of the European Communities for frozen poultry meat’, Appellate Body
Report, EC - Poultry, above n 6, at para 83.
303. Ibid, para 78.
304. Panel Report, above n 81, para 6.393.
Page44
305. Ibid, at para 8.24ff.
306. Citing Degan, above n 134, at 348-49.
307. Brownlie, above n 132, at 640-42.
308. Panel Report, above n 81, at 791.
309. Appellate Body Report, above n 81.
310. WTO Appellate Body Report, United States - Tax Treatment for Foreign Sales Corporations (US - Foreign Sales Corporations),
WT/DS108/AB/R, adopted 20 March 2000, para 165. The Appellate Body noted that the United States had waited a year to raise the
objection, despite several opportunities to do so in the meantime.
311. Joel Trachtman, ‘United States: Tax Treatment for “Foreign Sales Corporations”’, European Journal of International Law: Survey of
Decisions of the Appellate Body of the World Trade Organization, available at http://www.ejil.org/journal/curdevs/sr8.html (visited on 7
January 2002).
312. WTO Panel Report, European Communities - Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/R, adopted
(as modified) on 5 April 2001, at para 8.60. The matter was not addressed in the Appellate Body Report, above n 183.
313. At para 8.60. This was expressed to be on the basis that they are made for reasons of transparency, and are recognized as not having#p#分頁標(biāo)題#e#
legal effects.
314. WTO Panel, India - Measures Affecting the Automotive Sector, WT/DS146/R and WT/DS175/R, 21 December 2001 (not yet adopted) at
364.
315. D. W. Bowett, ‘Estoppel before International Tribunals and its Relation to Acquiescence’, 33 British Yearbook of International Law 178
(1957) at 178 (1 and 2) and authorities cited therein. See also L. C. MacGibbon, ‘The Scope of Acquiescence in International Law’, 31
British Yearbook of International Law 143 (1954) at 182; Jörg Paul Müller and Thomas Cottier, ‘Acquiescence’, in Rudolf Bernhardt (ed)
Encyclopedia of Public International Law (Elsevier: North Holland 1992 and 1995) 15.
316. Brownlie, above n 132, at 646-47. Müller and Cottier also note the uncertainty of how the principle of acquiescence relates to estoppel:
Jörg Paul Müller and Thomas Cottier, ‘above n 315, at 15.
317. The Appellate Body in its Report on United States - Anti-Dumping Measures On Certain Hot-Rolled Steel Products From Japan (US -
Steel from Japan), WT/DS184/AB/R, adopted 23 August 2001, noted that:It might be possible for the parties to a treaty expressly to agree
that the rules of treaty interpretation in Articles 31 and 32 of the Vienna Convention do not apply, either in whole or in part, to the
interpretation of a particular treaty. Likewise, the parties to a particular treaty might agree upon rules of interpretation for that treaty which
differ from the rules of interpretation in Articles 31 and 32 of the Vienna Convention. But this is not the case here. [at para 60, 40]In fact,
there is no doubt that parties to a treaty may agree different rules (and they often do) since the Vienna Convention rules of treaty
interpretation, while codifying customary international law, do not represent that special class of overriding principles of international law
that cannot be set aside by treaty (jus cogens). This special status is reserved for rules such as those prohibiting genocide, piracy or trade
in slaves, and it seems unlikely to relevantly expand in the near future. See generally Brownlie, above n 132, at 514-17. See also
Pauwelyn, above n 59 at 537 and 542. See also the ICJ decision in Elettronica Sicula SpA (ELSI) (US v Italy), ICJ Reports 1989, 15 at
50.
318. See WTO Appellate Body Report, Thailand - Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and
H-Beams from Poland (Thailand - Steel), WT/DS122/1/AB/R, adopted 5 April 2001, para 117.
319. Idem.
320. Sinclair has noted that ‘[o]ne can, almost by definition, assume that a dispute about a treaty provision which reaches the stage of
international adjudication will have arisen because the text is ambiguous or obscure’, above n 9, at 142. Further, the Vienna Convention
rules do not require a particular order of analysis, as already noted (see above 25), and ambiguity can arise at any step (such as in first#p#分頁標(biāo)題#e#
examining the text). As such, it would be a nonsense if the first instance of ambiguity meant the case was resolved in favour of the
importing Member without a full consideration.
321. See generally, Sinclair, above n 9, at 142 ff. Jackson considered that ‘[o]nce a panel has invoked Articles 31 and 32 of the Vienna
Convention, it will presumably have settled on a nonambiguous, nonabsurd interpretation’: Jackson, above n 166 at 144.
322. As noted, for example, in the separate opinion of Ajibola J of the ICJ in Territorial Dispute (Libyan Arab Jamahiriya/Chad), above n 2 at
74, para 88:For actually determining the meaning, I doubt that there is any need at all to resort to the travaux, firstly because the primary
means of interpretation do not leave any residue of ambiguity or absurdity, and secondly because the voluminous items of
correspondence, maps, negotiation documents, reports and parliamentary debates presented to us as forming part of the travaux
p#éparatoires are themselves frequently subject to conflicting interpretations.
323. In which case Article 33.4 provides that: ‘ … the meaning which best reconciles the texts, having regard to the object and purpose of the
treaty, shall be adopted’.
324. Waldock Report, above n 12, at 64.
325. Idem, at p. 64, 335.
326. PCIJ Reports 1924 Series A No 2, 19. The court said:Where two versions possessing equal authority exist one of which appears to have
a wider bearing than the other, it is bound to adopt the more limited interpretation which can be made to harmonize with both versions
and which, as far as it goes, is doubtless in accord with the common intentions of the Parties.
327. Waldock, above n 12, at 65; ILC Commentary, above n 9, at 225-26.
328. Above, n 324.
329. Chevron USA Inc v Natural Resources Defense Council, Inc, 467 US 837 (1984) (US Supreme Court) at 842-43. See Jackson, Dispute
Procedures, above n 166, at 146ff. The case was cited in the EC Submission at Attachment 1.1 to Panel Report; US - Lead and Steel,
above n 195, at paras 34-35:This US Supreme Court ruling has led to the so-called Chevron two-step analysis utilized by US courts in
reviewing administrative determinations such as those made by USDOC with regard to privatization. Under Chevron step one the court
asks ‘whether Congress has directly spoken to the precise question at issue’. If so, then the court ‘must give effect to the unambiguously
expressed intent of Congress’. If the Congress has not addressed the issue, however, then under Chevron step two the court must
determine whether the agency's interpretation of the Congressional statute is merely reasonable [original emphasis, citations omitted].
330. Since far from carrying into effect the parties’ intentions, it implies they were never ad idem: Hardy, above n 185, at 115.
331. As to the general issue of burden or onus of proof in WTO proceedings, see Appellate Body Report, US - Shirts and Blouses, above n#p#分頁標(biāo)題#e#
205, 14: ‘the burden of proof rests upon the party … who asserts the affirmative of a particular claim or defence’. In Appellate Body
Page45
Report, EC - Hormones, above n 47, the Appellate Body said (at para 109):In accordance with our ruling in United States - Shirts and
Blouses, the Panel should have begun the analysis of each legal provision by examining whether the United States and Canada had
presented evidence and legal arguments sufficient to demonstrate that the EC measures were inconsistent with the obligations assumed
by the European Communities under each article of the SPS Agreement addressed by the Panel … Only after such a prima facie
determination had been made by the Panel may the onus be shifted to the European Communities to bring forward evidence and
arguments to disprove the complaining party's claim.
332. Joost Pauwelyn, ‘Evidence, Proof and Persuasion in WTO Dispute Settlement: Who Bears the Burden?’ 1(2) JIEL 227 (1998) expresses
the view that if a court or tribunal is unclear on issues of law after an examination of arguments put forward by the parties it cannot sit still
and let the party making the legal claim lose, but must make its own legal examination and make the ‘correct’ legal finding (at 230; see
also at 232-33). In the passage cited above (at n 331) from the Appellate Body Report in EC - Hormones, however, and in many panel
reports, the concept of burden of proof is referred to in respect of legal arguments as well as factual evidence.
333. WTO Panel Report, United States - Anti-Dumping Measures on Stainless Steel Plate in Coils and Stainless Steel Sheet and Strip from
Korea, WT/DS179/R, adopted 1 February 2001, para 6.4; WTO Panel Report, United States - Anti-Dumping Duty on Dynamic Random
Access Memory Semiconductors (DRAMs) of One Megabit or Above from Korea, WT/DS99/R, adopted 19 March 1999, 143, 499. See
also Jackson, Dispute Procedures, above n 166, at 142 ff.
334. In Appellate Body Report, Thailand - Steel, above n 318, paras 125-27, the Appellate Body, while not dealing with the issue in detail, fully
supported the Panel's ‘examining at length the meaning and the context of Article 3.4’ under the Vienna Convention rules and its
consideration of an earlier Appellate Body decision on safeguards (where there exists no equivalent to Article 17 of the Anti-dumping
Agreement). In other words the Appellate Body supported the normal application of the Vienna Convention rules in an anti-dumping
case, without any suggestion that they were in any significant sense curtailed.
335. WTO Appellate Body Report, European Communities - Anti-Dumping Duties on Imports of Cotton-type Bed Linen from India,
WT/DS141/AB/R, adopted 12 March 2001, at 20-21, paras 63-65.
336. Appellate Body Report, US - Steel from Japan, above n 317, paras 59-61.
337. Marco C. E. J. Bronckers, ‘More Power to the WTO?’ 4(1) JIEL 41 (2001) at 56, 61. See also Kuyper, above n 3, at 229.#p#分頁標(biāo)題#e#
338. Michael Edwardes-Ker, Tax Treaty Interpretation (London: In-Depth Publishing 1994) at para 1.02.
339. Cameron and Gray, above n 2, at 250.
340. Ibid, at 253-54.
341. See e.g. the criticism of the Appellate Body interpretations of Articles 13 of the Dispute Settlement Understanding in Petros C. Mavroidis,
‘Amicus Curiae Briefs before the WTO: Much Ado About Nothing’, Harvard Jean Monnet Working Paper 02/01, 2001, available at the
Jean Monnet Program website:http://www.400190.com/dissertation_writing/Law/ (visited on 7 January 2002) at 16. See also
Arthur E. Appleton, ‘Amicus Curiae Submissions in the Carbon Steel Case: Another Rabbit from the Appellate Body's Hat?’, 3 JIEL 691
(2000) at 691 where the explanation given by the Appellate Body in that case (Appellate Body Report, United States - Imposition of
Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom,
WT/DS138/AB/R, adopted 7 June 2000) for its legal power to accept amicus submissions is described as: ‘from a legal perspective …
neither entirely satisfactory nor convincing, raising questions concerning the manner in which the Appellate Body exercises the authority
vested in it by the Members’.
342. Above, n 216. Mavroidis, above n 341 at p 15, text adjoining 12, referring to the interpretation of the WTO Safeguards Agreement (Art
4.2). See, for similar criticisms: Joel Trachtman, ‘United States - Definitive Safeguard Measures on Imports of Wheat Gluten from the
European Communities’, European Journal of International Law: Survey of Decisions of the Appellate Body of the World Trade
Organization, Section 4 (conclusions) available athttp://www.400190.com/dissertation_writing/Law/ sr20.html (visited on 7 January 2002).
343. Jacobs, above n 9, at 334
344. Idem.
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