Skip to main content
SpringerLink
Log in

Introducing Fundamental Values into Treaty Interpretation and the Possible Codification

  • Chapter
  • First Online:
Treaty Interpretation Under the Vienna Convention on the Law of Treaties

Abstract

This chapter explains that an interpreter could encounter the situation where two or more ordinary meanings need to be selected. In such case, the interpreter’s personal values could have a role to play. As a principle, he/she should select the ordinary meaning which is more in line with the object-and-purpose of the interpreted treaty in protecting fundamental human values, taking into consideration the context of protecting human values for the interpreted provision.

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Log in via an institution

Institutional subscriptions

Notes

  1. 1.

    http://www.dictionary.com/browse/pest. Accessed 13 Aug 2017.

  2. 2.

    Id.

  3. 3.

    Annex A (entitled “definitions”) of the SPS Agreement has the following provisions in paragraph 1.

    The term “pest” is provided in subparagraphs (a), (c) and (d).

    1. 1.

      Sanitary or phytosanitary measure—Any measure applied:

      1. a.

        to protect animal or plant life or health within the territory of the Member from risks arising from the entry, establishment or spread of pests, diseases, disease-carrying organisms or disease-causing organisms;

      2. b.

        to protect human or animal life or health within the territory of the Member from risks arising from additives, contaminants, toxins or disease-causing organisms in foods, beverages or feedstuffs;

      3. c.

        to protect human life or health within the territory of the Member from risks arising from diseases carried by animals, plants or products thereof, or from the entry, establishment or spread of pests; or

      4. d.

        to prevent or limit other damage within the territory of the Member from the entry, establishment or spread of pests.

    In addition to the definition provided in paragraph 1 of the Annex A, there is “Footnote 4” attached to the title of this annex: “For the purpose of these definitions, ‘animal’ includes fish and wild fauna; ‘plant’ includes forests and wild flora; ‘pests’ include weeds; and ‘contaminants’ include pesticide and veterinary drug residues and extraneous matter.”

  4. 4.

    Panel Report, European Communities—Measures Affecting the Approval and Marketing of Biotech Products, paras. 7.238–7.239, WTO Doc. WT/DS291/R, WT/DS292/R, WT/DS293/R (adopted 21 Nov 2006).

  5. 5.

    Id. at para. 7.351.

  6. 6.

    Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products, para. 129, WTO Doc. WT/DS58/AB/R (adopted 6 Nov 1998).

  7. 7.

    Id. at paras. 152–153, 155.

  8. 8.

    Article XX(b) of the GATT reads: “Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures: … (b) necessary to protect human, animal or plant life or health;…”

  9. 9.

    Article XIV(b) of the GATS reads: “Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where like conditions prevail, or a disguised restriction on trade in services, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any Member of measures: … (b) necessary to protect human, animal or plant life or health;…”

  10. 10.

    Appellate Body Report, European Communities—Measures Affecting Asbestos and Products Containing Asbestos, para. 172, WTO Doc. WT/DS135/AB/R (adopted 5 Apr 2001).

  11. 11.

    Article XX(a) of the GATT reads: “… nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures: (a) necessary to protect public morals;…”

  12. 12.

    Article XIV(a) of the GATS reads: “… nothing in this Agreement shall be construed to prevent the adoption or enforcement by any Member of measures:… (a) necessary to protect public morals or to maintain public order;…”

  13. 13.

    Appellate Body Report, United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WTO Doc. WT/DS285/AB/R (adopted 20 Apr 2005) [hereinafter US—Gambling Appellate Body Report]; Panel Report, United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WTO Doc. WT/DS285/R (adopted 20 Apr 2005).

  14. 14.

    Para. 6.465 in the Panel Report.

  15. 15.

    GATS footnote 5 provides: “The public order exception may be invoked only where a genuine and sufficiently serious threat is posed to one of the fundamental interests of society.”

  16. 16.

    Para. 6.467 in the Panel Report.

  17. 17.

    Article XX(g) of the GATT reads: “… nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures: … (g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption; …”

  18. 18.

    Protecting Biodiversity. http://www.davidsuzuki.org/issues/wildlife-habitat/science/endangered-species-legislation/protecting-biodiversity/. Accessed 13 Aug 2017.

  19. 19.

    World Commission on Environment and Development (WCED) (1987), p. 43.

  20. 20.

    http://www.who.int/trade/glossary/story076/en/. Accessed 13 Aug 2017.

  21. 21.

    The complete provisions of Article 10:3(a) and (b) of the GATT are quoted here: “(a) Each contracting party shall administer in a uniform, impartial and reasonable manner all its laws, regulations, decisions and rulings of the kind described in paragraph 1 of this Article. (b) Each contracting party shall maintain, or institute as soon as practicable, judicial, arbitral or administrative tribunals or procedures for the purpose, inter alia, of the prompt review and correction of administrative action relating to customs matters. Such tribunals or procedures shall be independent of the agencies entrusted with administrative enforcement and their decisions shall be implemented by, and shall govern the practice of, such agencies unless an appeal is lodged with a court or tribunal of superior jurisdiction within the time prescribed for appeals to be lodged by importers; Provided that the central administration of such agency may take steps to obtain a review of the matter in another proceeding if there is good cause to believe that the decision is inconsistent with established principles of law or the actual facts.”

  22. 22.

    It must be noted that for some human rights treaties, there are certain provisions which are subject to the reservations by some contracting States. For such parts, apparently there could be different views about whether they still constitute the core human values.

  23. 23.

    What Are ILO Conventions and Core Labour Standards? http://www.cleanclothes.org/issues/faq/ilo. Accessed 13 Aug 2017.

  24. 24.

    Animal Welfare. http://ec.europa.eu/food/animal/welfare/policy/index_en.htm. Accessed 13 Aug 2017.

  25. 25.

    Unless any one of the human rights contents in a treaty has been reserved by a specific country as permitted by the treaty.

  26. 26.

    US—Gambling Appellate Body Report, supra note 13, paras. 278–284.

  27. 27.

    Panel Report, European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, WTO Doc. WT/DS400/R, WT/DS401/R (adopted 18 June 2014).

  28. 28.

    Id. at para. 7.631.

  29. 29.

    Id. at para. 7.632.

  30. 30.

    GSP is a preferential scheme authorized by the Enabling Clause (i.e. the “Decision on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries”), which was adopted under GATT in 1979, to enable developed countries to give differential and more favourable treatment to developing countries. “Under the GSP, developed countries offer non-reciprocal preferential treatment (such as zero or low duties on imports) to products originating in developing countries. Preference-giving countries unilaterally determine which countries and which products are included in their schemes.” See WTO website at https://www.wto.org/english/tratop_e/devel_e/dev_special_differential_provisions_e.htm. Accessed 13 Aug 2017.

  31. 31.

    See the Preamble of the FCTC.

  32. 32.

    GATT Article III:2 provides in part that: “The products of the territory of any contracting party imported into the territory of any other contracting party shall not be subject, directly or indirectly, to internal taxes or other internal charges of any kind in excess of those applied, directly or indirectly, to like domestic products…”

  33. 33.

    GATT Article III:4 provides in part that: “The products of the territory of any contracting party imported into the territory of any other contracting party shall be accorded treatment no less favourable than that accorded to like products of national origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution or use…”

  34. 34.

    Article 2.2 of the TBT Agreement provides in part that: “Members shall ensure that technical regulations are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade. For this purpose, technical regulations shall not be more trade-restrictive than necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment would create. Such legitimate objectives are, inter alia: national security requirements; the prevention of deceptive practices; protection of human health or safety, animal or plant life or health, or the environment…”

  35. 35.

    Appellate Body Report, Japan—Taxes on Alcoholic Beverages, para. 107, WTO Doc. WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R (adopted 1 Nov 1996).

References

Download references

Author information

Authors and Affiliations

  1. Judicial Yuan, Constitutional Court, Taipei, Taiwan

    Chang-fa Lo

Authors
  1. Chang-fa Lo
    View author publications

    You can also search for this author in PubMed Google Scholar

Rights and permissions

Reprints and permissions

Copyright information

© 2017 Springer Nature Singapore Pte Ltd.

About this chapter

Check for updates. Verify currency and authenticity via CrossMark

Cite this chapter

Lo, Cf. (2017). Introducing Fundamental Values into Treaty Interpretation and the Possible Codification. In: Treaty Interpretation Under the Vienna Convention on the Law of Treaties. Springer, Singapore. https://doi.org/10.1007/978-981-10-6866-9_18

Download citation

  • DOI: https://doi.org/10.1007/978-981-10-6866-9_18

  • Published:

  • Publisher Name: Springer, Singapore

  • Print ISBN: 978-981-10-6865-2

  • Online ISBN: 978-981-10-6866-9

  • eBook Packages: Law and CriminologyLaw and Criminology (R0)

Publish with us

Policies and ethics

Search

Navigation