Abstract
Can WTO panels apply general rules on state responsibility? Can they apply provisions of the Vienna Convention on the Lawof Treaties other than those on treaty interpretation? Are WTO panels mandated to applynon-WTOtreaties, such as multilateral environmental agreements, or bilateral agreements concluded only as between the disputing parties? If so, what is the relationship between these non-WTO rules of international law and the WTO Agreement? Which prevails in the event of conflict? Those are some of the practical questions examined in this Chapter. Part I examines the nature of WTO law. Part II looks at how WTO law interacts in the abstract with other rules of international law. Then the jurisdictional scope of WTO panels is set forth (Part III) and the law that panels may apply and refer to in examining WTO claims (Part IV). The outcome of the interaction between WTO and other international law in practice before a WTO panel, is addressed in Part V. Part VI provides a summary of the chapter and offers some guidelines to WTO negotiators and other treaty-makers.
formerly with the Appellate Body Secretariat and the Legal Affairs Division of the WTO Secretariat (1996–2002).
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References
Report of the Appellate Body, United States—Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, at 17 (1996) (“U.S.—Gasoline”).
For a plausible reason why the drafters considered it necessary to explicitly confirm international law rules on interpretation, see the panel report in Korea—Measures Affecting Government Procurement, WT/DS163/R, ¶ 7.96, n.753 (2000) (“Korea—GovernmentProcurement”): The language of 3.2 in this regard applies to a specific problem that had arisen under the GATT to the effect that, among other things, reliance on negotiating historywas being utilized in a manner arguably inconsistent with the requirements of the rules of treaty interpretation of customary international law.
For an elaboration on those cases and the relevant scholarly writings, see Joost Pauwelyn, The Role of Public International Law in the WTO: How Far Can We Go?, 96American Journal of International Law 535, at 541–542 (2001), referring, inter alia, to: Georges Pinson (Fr.) v. United Mexican States, 5 R.I.A.A. 327, 422 (Perm. Ct. Arb. 1928); Chorzów Factory (Ger. v. Pol.), Merits, 1928 PCIJ (ser. A) No. 17, at 29 (Sept. 13); Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 ICJ Rep. 16, 47, ¶ 96 (June 21); Elettronica Sicula S.p.A (ELSI) (U.S. v. Italy), 1989 ICJ Rep. 15, 42, ¶ 50 (July 20); and Amoco Int’l Finance Corp. v. Iran, 15 Iran-U.S. Cl. Trib. Rep. 189, ¶ 112 (1987).
Korea—Government Procurement, supra note 6, ¶ 7.96 (emphasis supplied, footnote omitted).
Id. ¶ 7.101.
Id. ¶ ¶ 7.123-7.126.
Id. ¶ 7.96, n.753.
Report of the Appellate Body, United States—Transitional Safeguard Measure on Combed Cotton Yarn from Pakistan (“U.S.—Cotton Yarn”), WT/DS192/AB/R (2001).
Id. ¶ 120.
Id.
Id.
Report of the Appellate Body, United States—Anti-Dumping Act of 1916, WT/DS136/AB/R, ¶ 54 n.30 (2000). See also International Tribunal for the Former Yugoslavia, Prosecutor v. Tadic, Appeal on Jurisdiction, No. ITB94B1BAR72, ¶ ¶ 18, 15 (Oct. 2, 1995).
Report of the Appellate Body,United States—Measures Affecting Imports of Woven Wool Shirts and Blouses from India WT/DS33/AB/R, at p. 14 (1997) (“U.S.—Shirts and Blouses”).
Report of the Appellate Body, European Communities—Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/AB/R, ¶ 133 (1997) (“EC—Bananas”).
It is generally accepted that when states confer jurisdiction on a tribunal to decide a particular claim, such jurisdiction includes the jurisdiction to grant the available remedies to redress the violation in case the claim is found to be valid. See Chorzów Factory (Ger. v. Pol.), Merits, 1928 PCIJ (ser. A) No. 17, at 29.
Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. U.S.), Provisional Measures, 1992 ICJ Rep. 114, ¶ 42 (April 14). There is, of course, a difference between DSU Article 7 (making explicit reference to WTO-covered agreements only) and Article 38 of the ICJ Statute which explicitly refers to four sources of international law that the ICJ may apply. Nonetheless, practice has shown that these four sources explicitly mentioned in Article 38 do not exhaust the potentially applicable law before the ICJ. They do not include, for example, unilateral acts of states and acts of international organizations. Hence, DSU Article 7 and Article 38 of the ICJ Statute are not that different: neither of them sets out an exhaustive list of potentially applicable law.
Report of the Appellate Body, European Communities—Customs Classification of Certain Computer Equipment, WT/DS62/AB/R, ¶ 84 (1998) (“EC—Computer Equipment”).
For an elaboration and an assessment of the question of whether this means that all WTO Members must be legally bound by a non-WTO rule before that rule can be referred to in the interpretation of a WTO treaty term, see Joost Pauwelyn, How Far Can We Go?, supra Joost Pauwelyn, The Role of Public International Law in the WTO: How Far Can We Go?, 96 American Journal of International Law 535, at (2001) note 8.
Report of the Appellate Body, United States—Import Prohibition of Shrimp and Certain Shrimp Products, WT/DS58/AB/R (1998)(“U.S.—Shrimp/Turtle”), ¶ 158. In ¶ 166, n.157, of this report, the first and so far the only explicit reference to Article 31(3)(c) is made. See also, Report of the Appellate Body, United States-Tax Treatment for “Foreign Sales Corporations”, WT/DS108/AB/R (2000), ¶ 166 (referring to the principle of good faith as “at once a general principle of law and a principle of general international law”).
EC—Computer Equipment, supra, note 25, ¶ 70 (in interpreting DSU Article 6.2). See also Report of the Appellate Body, European Communities—Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R (1998) (“EC—Hormones”), ¶ 133 & n.138 (referring to “fundamental fairness”, “due process” and “natural justice” in the context of DSU Article 11).
Report of the Appellate Body, United States—Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan, WT/DS184/AB/R (2001), ¶ 101.
Report of the Appellate Body, United States—Transitional Safeguard Measures on Combed Cotton Yarn From Pakistan, WT/DS192/AB/R (2001), ¶ 81.
U.S.—Shrimp/Turtle, supra note 27, ¶ ¶ 128–32.
When first examining the question of burden of proof, the Appellate Body clearly was not interpreting a particular WTO provision, but applying general international lawrules (more particularly, “general principles of law” it would seem) on burden of proof to the WTO treaty. It stated: In addressing this issue, we find it difficult, indeed, to see how any system of judicial settlement could work if it incorporated the proposition that the mere assertion of a claim might amount to proof. It is, thus, hardly surprising that various international tribunals, including the International Court of Justice, have generally and consistently accepted and applied the rule that the party who asserts a fact, whether the claimant or the respondent, is responsible for providing proof thereof. Also, it is a generally-accepted canon of evidence in civil law, common lawand, in fact, most jurisdictions, that the burden of proof rests upon the party, whether complaining or defending, who asserts the affirmative of a particular claim or defense. If that party adduces evidence sufficient to raise a presumption that what is claimed is true, the burden then shifts to the other party, who will fail unless it adduces sufficient evidence to rebut the presumption. (U.S.-Wool Shirts and Blouses, Supra note 19, at p. 14.)
Report of the Appellate Body, Argentina—Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items, WTO Doc. WT/DS56/AB/R, ¶ ¶ 65–74 (1998).
Report of the Appellate Body, United States—Import Prohibition of Certain Shrimp and Shrimp Products, Recourse to Article 21.5 DSU by Malaysia, WT/DS58/AB/RW(2001)(“United States—Article 21.5 Shrimp-Turtle”), ¶ 122.
In the Article 21.5 Shrimp/Turtle dispute, supra note 38, the Appellate Body explicitly referred to a non-WTO treaty (the Inter-American Convention for the Protection and Conservation of Sea Turtles), albeit only as “a factual reference” (Id. ¶ 130), as “evidence that an alternative course of action based on cooperation and consensus was reasonably open to the United States” (Id. ¶ 128). There, it could not possibly have relied on this Convention as a U.S. defense since Malaysia, the complainant, was not bound by this Convention.
See, e.g., Ian Brownlie, Principles of Public International Law 3 (1998); Nguyen Quoc Dinh, Patrick Daillier, & Alain Pellet, Droit International Public 114 (1999) (stating “pour les sources, il n’existe pas de hiérarchie en droit international” (emphasis omitted)); Mark E. Villiger, Customary International Law and Treaties, ¶ 85 (2d rev. ed. 1997) (noting that “an a priori hierarchy of sources is an alien concept” to the structure of the international legal order); Michael Akehurst, The Hierarchy of the Sources of International Law, 1974–75 Brit. Y.B. Int’l L. 273, 274.
Note, in contrast, the very elaborate Article 311 of the UNLOS Convention, Relation to Other Conventions and International Agreements, which regulates both the relationship of the Convention to pre-existing treaties and subsequent treaties.
European Energy Charter Treaty, opened for signature Feb. 1, 1995, 34 ILM 360 (1995), as subsequently amended.
For a discussion, see Joost Pauwelyn, supra note 8 and the same author’s book Conflict of Norms in Public International Law, How Wto Law Relates to Other Rules of International Law (2003).
See Lorand Bartels, Applicable Law in WTO Dispute Settlement Proceedings, 35 Journal of World Trade 499 (2001).
ICJ Reports 1950, 229.
U.S.—Gasoline, supra note 3, at 23, confirmed in, inter alia, Report of the Appellate Body, Japan—Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R (1996) at 12.
Report of the Appellate Body, India—Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/AB/R (1998), ¶ 46.
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Pauwelyn, J. (2005). The Application of Non-WTO Rules of International Law in WTO Dispute Settlement. In: Macrory, P.F.J., Appleton, A.E., Plummer, M.G. (eds) The World Trade Organization: Legal, Economic and Political Analysis. Springer, Boston, MA. https://doi.org/10.1007/0-387-22688-5_31
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