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The Role of Public International Law in the WTO: How Far Can We Go?

  • Joost Pauwelyn (a1) (a2)

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How does the World Trade Organization (WTO) relate to the wider corpus of public international law? What, in turn, is the role of public international law in WTO dispute settlement? This paper aims at resolving these two difficult questions. No straightforward answers to them can be found in WTO rules. Yet answering them has major ramifications both for the WTO (is the WTO a largely “self-contained regime” or is it not?) and for international law (is the future of international law further fragmentation or increased unity?). This exercise will be conducted under the law as it stands today—that is, the law as it may be invoked at present before the WTO “judiciary” (panels and the Appellate Body). Of course, WTO members (viz., the WTO “legislator”) could clarify or change the relationship between WTO rules and other rules of international law. However, it is unlikely that such changes will occur any time soon. In part I, I examine the general relationship between public international law and WTO law. I then assess, more specifically, the role of public international law in WTO dispute settlement in part II and offer some conclusions in part III.

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1 The notion “WTO rules” is used here to denominate all rules of law created in the context of the WTO, not just those in the so-called WTO covered agreements listed in Appendix 1 to the Understanding on Rules and Procedures Governing the Settlement of Disputes [hereinafter DSU]. Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, The Results of The Uruguay Round of Multilateral Trade Negotiations: The Legal Texts 6 (1995) [hereinafter Legal Texts], reprinted in 33 ILM 1144 (1994) [hereinafter WTO Agreement]. For the DSU, Apr. 15, 1994, see WTO Agreement, Annex 2, Legal Texts, supra, at 404, reprinted in 33 ILM at 1226. See also infra note 37.

2 See Pieter, Jan Kuijper, The Law of GATT as a Special Field of International Law, 1994 Neth.Y.B. Int’l L. 227 ; Simma, Bruno, Self-Contained Regimes, 1985 Neth. Y.B. Int’l L. 111 .

3 See Jonathan, I. Charney, Is International Law Threatened by Multiple International Tribunals? 271 Recueil Des Cours [R.C.A.D.I.] 101 (1998); Guillaume, Gilbert, The Future of International Judicial Institutions, 44 Int’l & Comp. L.Q. 848 (1995); Kingsbury, Benedict, Foreword: Is the Proliferation of International Courts and Tribunals a Systemic Problem? 31 N.Y.U.J. Int’l L. & Pol. 679 (1999); Robert, Y. Jennings, The Proliferation of Adjudicatory Bodies: Dangers and Possible Answers, 9 ASIL Bull., No. 9, 1995, at 2 .

4 They could do so, for example, by providing authoritative interpretations of WTO rules, by granting certain waivers, or by amending WTO rules (respectively, under Articles IX:2, IX:3, or X of the WTO Agreement).

5 To date, a limited exception is international organizations, insofar as they themselves (not their members) create rules of international law (the so-called acts of international organizations).

6 Rousseau, Charles, De la Compatibilité des normes juridiques contradictoires dans I’ordre international, 39 Revue Générale De Droit International Public 133, 150-51 (1932) (“Le droit des gens est un droit de coordination et non de subordination. L’accord des sujets de droit y est la seule source de droit et les normes qui résultent de cet accord de volontés sont d’égale valeur juridique.”).

7 See, e.g., Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, Arts. 34-38, 1155 UNTS 331 (dealing with treaties and third parties) [hereinafter Vienna Convention].

8 Hart gave prominence to the distinction between primary and secondary rules: “secondary are all concerned with the primary rules themselves. They specify the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined.” H. L. A. Hart, The Concept of Law 92 (1961). The scope of the “secondary” rules referred to here (as well as in Hart’s book) is much wider than the notion of “secondary” rules used by the International Law Commission (ILC) in its discussions on the draft articles on state responsibility (where it is limited to the definition and consequences of breach of primary rules, excluding secondary rules such as those on the creation, application, revision, or termination of primary rules). See, e.g., James Crawford, First Report on State Responsibility, UN Doc. A/CN.4/490, at 4 (1998). Professor Crawford’s reports on state responsibility and the draft articles are available online at <http://www.un.org/law/ilc/index.htm>.

9 See Fitzmaurice, Gerald, Some Problems Regarding the Formal Sources of International Law, in Symbolae Verzijl 153, 160 (1958).

10 See, e.g., Brownlie, Ian, Principles of Public International Law 3 (1998); Quocdinh, Nguyen, Daillier, Patrick, & Pellet, Alain, Droit International Public 114 (1999) (stating that “pour les sources, il n’existe pas de hiérarchie en droit international” (emphasis omitted)); Mark, E. Villiger, Customary International Law and Treaties, para. 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); Akehurst, Michael, The Hierarchy of the Sources of International Law, 1974-75 Brit. Y.B. Int’l L. 273, 274 .

11 See, for example, Weil, Prosper, Towards Relative Normativity in International Law, 77 AJIL 413 (1983), and the negotiating history of paragraph 6 of Article 311 of the 1982 UN Convention on the Law of the Sea, 5 United Nations Convention on The Law of The Sea, 1982: A Commentary (1989).

12 See Vienna Convention, supra note 7, Arts. 53, 64.

13 Most often the very reason to conclude a treaty (other than to codify customary law) is to change general international law.

14 See Vienna Convention, supra note 7, Arts. 39, 40. This possibility of lex specialis contracting out of Vienna Convention rules is confirmed, inter alia, in id., Art. 5, stating that the Convention is “without prejudice to any relevant rules” of international organizations.

15 See State Responsibility: Draft Articles Provisionally Adopted by the Drafting Committee on Second Reading, Art. 56, UN Doc. A/CN.4/L.600 (2000) (providing that” [t]hese articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or its legal consequences are determined by special rules of international law.”) [hereinafter Draft Articles 2000].

16 We come back to this issue in text at note 41 infra.

17 Resolution: Problems Arising from a Succession of Codification Conventions on a Particular Subject, Conclusion 11 (Hierarchy of Sources), [1995] 2Y.B. Inst. Int’l L. 441 (“There is no a priori hierarchy between treaty and custom as sources of international law.”); Nancy Kontou, The Termination and Revision of Treaties in The Light of New Customary International Law 21 (1994) (stating that “it is accepted that the binding force of conventional and customary rules is the same”); supra note 10.

18 Nguyen, Daillier, & Pellet, supra note 10, at 289.

19 Kontou, supra note 17, at 146; Villiger, supra note 10, paras. 302-28; [1995] 1 Y.B. Inst. Int’l L. 245.

20 See text at note 64 infra.

21 See also Vienna Convention, supra note 7, Arts. 41, 59.

22 E.g., United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, Art. 311(6), 1833 UNTS 397 [hereinafter LOS Convention].

29 E.g., UN Charter Art. 103.

24 E.g., Vienna Convention, supra note 7, Arts. 41, 53.

25 John, H. Jackson, The World Trading System 25 (1997); McRae, Donald, The WTO in International Law: Tradition Continued or New Frontier? 3 J. Int’l Econ. L. 27 (2000); McRae, Donald, The Contribution of International Trade Law to the Development of International Law, 260 Recueil Des Cours 111 (1996); Ernst-Ulrich, Petersmann, Dispute Settlement in International Economic Law—Lessons for Strengthening International Dispute Settlement in Non- Economic Areas, 2J. Int’l Econ. L. 189 (1999). For earlier sources confirming that the GATT was no more than a specialized branch of public international law, see Ignaz Seidl-Hohenveldern, International Economic Law (1989); Schwarzenberger, Georg, The Principles and Standards of International Economic Law, 87 Recueil Des Cours 1 (1996 I). The possible exception is Bello, Judith, The WTO Dispute Settlement Understanding: Less Is More, 90 AJIL 416, 416-17 (1996) (stating that “WTO rules are simply not ‘binding’ in the traditional sense”).

26 Pauwelyn, Joost, Enforcement and Countermeasures in the WTO: Rules Are Rules—Toward a More Collective Approach, 94 AJIL 335 (336).

27 See Mariano García Rubio, Unilateral Measures as a Mean [s] of Enforcement of WTO Recommendations and Decisions n.22 (Hague Academy of International Law, forthcoming 2001) (calling it “difficult... to envisage any other possible status for rules emanating from a[] treaty concluded among States under international law, as the WTO Agreement”).

28 “WTO treaty” is used here to denominate the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Apr. 15,1994, Legal Texts, supra note 1, at 2, reprinted in 33 ILM at 1125 (1994) (which includes not only the WTO Agreement with its four annexes, but also a series of ministerial declarations and decisions).

29 Compare, for example, the WTO treaty to the LOS Convention, supra note 23, an equally broad and universal regulatory treaty that carefully regulates its relationship with other rules of international law in Article 311 (containing no less than six paragraphs).

30 See the discussions by Kuijper and Simma, supra note 2, and the reports on state responsibility by Riphagen, Arangio Ruiz, and Crawford to the ILC. [1981] 2 Y.B. Int’l L. Comm’n, pt. 1, at 79, UN Doc. A/CN.4/SER.A/ 1981/Add.l (Part 1); [1982] 2 id., pt. 1, at 22, UN Doc. A/CN.4/SER.A/1982/Add.l (Part 1); [1983] 2 id., pt. 1, at 3,UNDoc.A/CN.4/SER.A/1983/Add.l (Part 1); [1985] 2 id., pt. l, at 3,UNDoc.A/CN.4/SER.A/1985/Add.l (Part 1); [1991] 2 id., pt. 1, at 1, UN Doc. A/CN.4/SER.A/1991/Add.1 (Part 1); [1992] 2 id., pt. 1, at 1, UN Doc. A/CN.4/SER.A/ 1992/Add. 1 (Part 1); Third Report on State Responsibility, UN Doc. A/CN.4/507/Add. 1, para. 157, & Add.4, para. 415 (2000) [hereinafter Crawford, Third Report].

31 Even the highly developed (and arguably “domestic”) legal system of the European Community at times refers back to general international law. Kuijper, Pieterjan, The Court and the Tribunal of the EC and the Vienna Convention on the Law of Treaties 1969, 25 Legal Issues Eur. Integration 1 (1998). Also, for practical purposes a workable treaty could not possibly be set up outside the system of international law, completely de-linked, for example, from the law of treaties and general principles of law.

32 See WTO Agreement Art. XII. 1 and Explanatory Notes (defining the term “country”). Hereinafter, when the word “state” is used in the context of the WTO treaty, it should be read as including separate customs territories.

33 See, e.g., United States—Measures Affecting Government Procurement, WTO Doc. WT/DS88 & 95 (Feb. 14, 2000) (involving U.S. trade sanctions against Myanmar); United States—The Cuban Liberty and Democratic Solidarity Act, WTO Doc. WT/DS38 (Apr. 24, 1998) (involving U.S. trade sanctions against Cuba). Reports of WTO panels and the Appellate Body are available online at <http://www.wto.org>.

34 See United States—Import Prohibition of Certain Shrimp and Shrimp Products, WTO Docs. WT/DS58/R (May 15, 1998) (panel), & WT/DS58/AB/R (Nov. 6, 1998) (Appellate Body) [hereinafter U.S.—Shrimp/Turtle] (note that Appellate Body reports are designated by “AB” in the report number); Chile—Measures Affecting Transit and Importation of Swordfish, WTO Doc. WT/DS193 (suspended Mar. 23, 2001) [hereinafter Chile— Swordfish]. The latter complaint was also brought before the International Tribunal for the Law of the Sea but suspended on the basis of a provisional arrangement. Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile v. Eur. Com.) (Mar. 15, 2001), at <http://www.un.org/Depts/los/ITLOS/Orderl_2001Eng.pdf>.

35 See Nicaragua—Measures Affecting Imports from Honduras and Colombia, WTO Doc. WT/DS188 & 201 (May 5, 2000) (involving trade sanctions as a result of a maritime delimitation dispute). This dispute is also pending before the International Court of Justice. Maritime Delimitation Between Nicaragua and Honduras in the Carribean Sea (Nicar. v. Hond.) (filed Dec. 8, 1999), at <http://www.icj-cij.org>.

36 See infra text at note 92.

37 “WTO rules,” as defined in note 1 supra, includes the 1994 WTO treaty as well as all subsequent WTO rules, not just those in subsequent agreements between WTO members, but also those constituted by acts of the WTO as an international organization (such as waivers and decisions of the Dispute Settlement Body [hereinafter DSB]), unilateral acts of WTO members, and, potentially, customary law specific to WTO members and the WTO treaty.

38 See European Communities—Measures Affecting Importation of Certain Poultry Products, WTO Doc. WT/DS69/AB/R, para. 81 (July 23, 1998) [hereinafter EC—Poultry].

39 General Agreement on Tariffs and Trade, Apr. 15, 1994, WTO Agreement, Annex 1A, Legal Texts, supra note 1, at 21, reprinted in 33 ILM 1154 (1994) [hereinafter GATT 1994]; Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Annex 1C, Legal Texts, supra, at 365, reprinted in 33 ILM 1197 (1994) [hereinafter TRIPS Agreement].

40 See text at note 90 infra.

41 .See Trachtman, Joel, The Domain of WTO Dispute Resolution, 40 Harv. Int’l L.J. 333, 342-43 (1999); infra note 175.

42 This point applies only in respect of general international law. Indeed, to the extent that the WTO treaty confirmed and incorporates preexisting treaty rules, such as rules of certain WIPO conventions, WTO members not only confirmed their legal commitment to these rules (with some members agreeing to these rules for the first time), but also extended that commitment by subjecting these rules to the automatic and compulsory dispute settlement system of the WTO. See text at note 123 infra.

43 Accord Garcia Rubio, supra note 27.

44 Georges Pinson (Fr.) v. United Mexican States, 5 R.I.A.A. 327, 422 (Perm. Ct. Arb. 1928) (trans, by author). Or as McNair stated: “Treaties must be applied and interpreted against the background of the general principles of international law.” A. D. Mcnair, The Law of Treaties 466 (1961). According to Lauterpacht, Hersch, Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties, 1949 Brit. Y.B. Int’l L. 48, 76 :

It is the treaty as a whole which is law. The treaty as a whole transcends any of its individual provisions or even the sum total of its provisions. For the treaty, once signed and ratified, is more than the expression of the intention of the parties. It is part of international law and must be interpreted against the general background of its rules and principles.

45 Chorzów Factory (Ger. v. Pol.), Merits, 1928 PCIJ (sen A) No. 17, at 29 (Sept. 13).

46 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, para. 96 (June 21).

47 Elettronica Sicula S.p.A (ELSI) (U.S. v. Italy), 1989 ICJ Rep. 15, 42, para. 50 (July 20).

48 Amoco Int’l Fin. Corp. v. Iran, 15 Iran-U.S. CI. Trib. Rep. 189, para. 112 (1987):

As a lex specialis in the relations between the two countries, the Treaty supersedes the lex generalis, namely customary international law.... [H]owever,.... the rules of customary law may be useful in order to fill in possible lacunae of the law of the Treaty, to ascertain the meaning of undefined terms in its text or, more generally, to aid interpretation and implementation of its provisions.

49 Except for rules of jus cogens.

50 Oppenheim’s International Law refers to a “presumption that the parties intend something not inconsistent with generally recognised principles of international law, or with previous treaty obligations towards third states.” 1 Oppenheim’s International Law 1275 (Robert Jennings & Arthur Watts eds., 1996) [hereinafter Oppenheim] (referring to ICJ decisions). As regards the right to reparation, Crawford refers to “a presumption against the creation of wholly self-contained regimes in the field of reparation.” Crawford, Third Report, supra note 30, para. 157.

51 Crawford submits, for example, that, in terms of state responsibility, the DSU is an example where it is “clear from the language of a treaty or other text that only the consequences specified flow.” Crawford, Third Report, supra note 30, Add.4, para. 420. In my view, this is not so clear. Accord Mariano Garcia Rubio, supra note 27; C, Petros, Mavroidis, Remedies in the WTO Legal System: Between a Rock and a Hard Place. 11 Eur. J. Int’l L., 763 (2000).

52 United States—Standards for Reformulated and Conventional Gasoline, WTO Doc. WT/DS2/AB/R, at 17 (Mar. 20, 1996) [hereinafter U.S.—Gasoline].

53 To my knowledge, the WTO treaty is the only international legal instrument that explicitly confirms international law rules of interpretation. For a plausible reason, see infra note 60.

54 U.S.—Gasoline, supra note 52, at 17; Japan—Taxes on Alcoholic Beverages, WTO Doc. WT/DS8/AB/R, at 10 (Nov. 1, 1996) [hereinafter Japan—Taxes].

55 See text at note 252 infra.

56 his horizontal relationship between a new treaty, say, the WTO treaty, and other international law (and how the two interact) is to be distinguished from the vertical relationship between national law and international law (as well as the debated effect international law has in domestic legal systems). WTO and other rules of international law are part of one and the same legal system, which is public international law (unless one disputes that WTO law is international law). In contrast, national law and international law, even in countries upholding a monist view, remain in essence two separate legal systems with international law permeating national law only if certain conditions (on preciseness, unconditionality, etc.) are met.

57 Korea—Measures Affecting Government Procurement, WTO Doc. WT/DS163/R, para. 7.96 (June 19, 2000) (emphasis added) (footnote omitted) [hereinafter Korea—Government Procurement].

58 Id., para. 7.101.

59 Id., paras. 7.123-.126.

60 Id., para. 7.96 n.753:

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 history was being utilized in a manner arguably inconsistent with the requirements of the rules of treaty interpretation of customary international law.

61 To be entirely correct, the panel should also have specified that only general customary international law applies as between all WTO members; not special or local customary law between certain WTO members only.

62 As were the Tokyo Round codes, for example, on technical barriers to trade and dumping.

63 As GATT 1947 was replaced by GATT 1994. For GATT 1947, see General Agreement on Tariffs and Trade, Oct. 30, 1947, TIAS No. 1700, 55 UNTS 194 [hereinafter GATT 1947].

64 Convention on Biological Diversity, June 5, 1992, 31 ILM 818 (1992).

65 North American Agreement on Environmental Cooperation, Sept. 14, 1993, Can.-Mex.-U.S., 32 ILM 1480 (1993).

66 European Energy Charter Treaty, opened for signature Feb. 1, 1995, 34 ILM 360 (1995).

67 Cartagena Protocol on Biosafety, Jan. 29, 2000, 39 ILM 1027 (2000).

68 But probably because of a lack of preoccupation with public international law (and political deadlock on those rules of international law WTO negotiators did have in mind).

69 Note, in contrast, the very elaborate Article 311 of the LOS Convention, “Relation to other conventions and international agreements.” See, in this respect, Roucounas, Emmanuel, Engagements parallèles et contradictoires, 206 Recueil Des Cours 222 (1987 VI).

70 It can be presumed that all pre-1994 GATT-related instruments that were not incorporated into the WTO treaty (in particular, into GATT 1994) were terminated or at least superseded by the WTO treaty. See the discussion of EC—Poultry in text at note 215 infra.

71 GATT Article XXI(c), a limited mirror image of Article 103 of the UN Charter.

72 Article 2.2 of the TRIPS Agreement, supra note 39, provides that” [n]othing in Parts I to IV of this Agreement shall derogate from existing obligations that Members may have to each other under the Paris Convention, the Berne Convention, the Rome Convention and the Treaty on Intellectual Property in Respect of Integrated Circuits.”

73 Article 11.3 of the SPS Agreement provides that “[n]othing in this Agreement shall impair the rights of Members under other international agreements, including the right to resort to the good offices or dispute settlement mechanisms of other international organizations or established under any international agreement.” Agreement on the Application of Sanitary and Phytosanitary Measures, Apr. 15, 1994, WTO Agreement, Annex 1A, Legal Texts, supra note 1, at 69 [hereinafter SPS Agreement].

74 GATT Art. XXIV; GATS Art. V; see text following note 91 infra. For GATS, see General Agreement on Trade in Services, Apr. 15, 1994, WTO Agreement, Annex IB, Legal Texts, supra note 1, at 325, reprinted in 33 ILM 1168 (1994) [hereinafter GATS].

75 Legal Texts, supra note 1, at 447.

76 See text at note 218 infra.

77 Legal Texts, supra note 75, at 469.

78 The committee, however, did endorse “multilateral solutions based on international cooperation and consensus as the best and most effective way for governments to tackle environmental problems of a transboundary or global nature” and said it preferred that trade disputes arising in connection with a multilateral environmental agreement be resolved through the mechanisms established by that agreement. WTO Doc. WT/CTE/1, para. 171 (1996). But see text following note 143 and note 147 infra. For an interesting, though inconclusive, evaluation of the relationship between the WTO treaty and earlier environmental conventions, see Housman, Robert & David, M. Goldberg, Legal Principles in Resolving Conflicts Between Multilateral Environmental Agreements and the GATT/WTO, in The Use of Trade Measures in Select Multilateral Environmental Agreements 297 (Housman, Robert et al. eds., 1995) [hereinafter Trade Measures].

79 Article 30(2) of the Vienna Convention, supra note 7, confirms that the lex posterior rule in Article 30(3) is of residual value only.

80 See text at note 17 supra.

81 Sinclair already noted that regarding the interplay between multilateral treaties, Article 30 is “in many respects not entirely satisfactory.” Ian Sinclair, The Vienna Convention on The Law of Treaties 98 (2d ed. 1984). But see text at note 93 infra, the discussion on Article 41, explicitly referred to in Article 30(5), which does offer some solutions.

82 See, e.g., Simon, Denys, L’Interprétation Judiciaire Des Traités D’organisations Internationales 378 (1981). He states that

l’accord de volontés qui a présidé à la conclusion de la convention ne s’est pas épuisé dans la rédaction d’un texte; l’application d’une telle convention suppose nécessairement le renouvellement permanent de l’adhésion des Etats membres au contenu de norms juridiques dont l’instrument signé ne constitue qu’une expression solennelle, mais, par essence, éphémère.

83 For the proposition that it is the time of conclusion that counts, not the time of entry into force, see Vierdag, E. W., The Time of the ‘Conclusion’ of a Multilateral Treaty, 1998 Brit.Y.B. Int’l L. 75 . Note, for example, that if one were to take the singular act of conclusion of a multilateral treaty seriously, it could well be argued that GATT 1947 (as incorporated without any change in GATT 1994) remains, pursuant to Article 11:4 of the WTO Agreement, a “legally distinct” instrument concluded not in 1994, but in 1947, so that in terms of timing, GATT remains the earlier treaty vis-à-vis, for example, pre-1994 environmental treaties. At the same time, new WTO agreements (such as the 1994 SPS Agreement) would then be later in time, an absurd result with respect to “continuing treaties.”

84 Such “continuing treaties” are, indeed, “continuing acts,” as referred to in Article 14(2) of the ILC Draft Articles 2000, supra note 15. See Pauwelyn, Joost, The Concept of a ‘Continuing Violation’ of an International Obligation: Selected Problems, 1995 Brit.Y.B. Int’l L. 415 . In support, see the references in note 254 infra.

85 Such as the very first preambular paragraph to the WTO Agreement (referring to “the objective of sustainable development”) and the opinions expressed by GATT secretariat experts during the preparation of environmental conventions, stating that these conventions were consistent with GATT rules. Cases in point are the Montreal Protocol on Substances That Deplete the Ozone Layer, Sept. 16,1987,1522 UNTS 3; Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 27 UST 1087, 993 UNTS 243 [hereinafter CITES]; see Housman & Goldberg, supra note 78, at 303; Trade Measures, supra note 78, ch. III. In extreme cases a conflict of norms may even be unresolvable and constitute a lacuna as a result of which a judge must pronounce a non liquet.

86 Elements of Article 41 of the Vienna Convention, supra note 7, may also turn out to be decisive, see text at note 93 infra.

87 That is, of course, to the extent EC rules are not prohibited by WTO rules, in which case WTO rules should prevail over EC rules. The situation envisaged here is rather one where an EC member state would invoke a right under WTO rules to restrict trade that contradicts an obligation under EC rules to promote free trade (EC rules being generally more advanced in terms of trade liberalization).

88 After all, in the Vienna Convention, supra note 7, no direct reference is made to lex specialis (except for rules of international organizations, Article 5). To read the requirement of “same subject-matter” in Article 30 as incorporating the lex specialis rule is not convincing. If a conflict between two rules does arise, see text at note 104 infra, they must necessarily relate to the same subject matter (even if one is more special than the other). See Oppenheim, supra note 50, at 1212 n.2; Vierdag, supra note 83, at 100.

89 It is difficult to speak of lex specialis as a genuine and decisive legal rule on how to solve conflict. Here, it is rather a rule of logic that may provide information on the “current expression of consent” of the parties.

90 See category 5 rules in text at note 40 supra and supra note 37.

91 See, for example, the preamble to the Cartagena Protocol on Biosafety, supra note 67.

92 WTO Agreement Art. X.

93 We assume that this article represents customary international law binding on all WTO members. The thrust of Article 41 is explicitly confirmed, for example, in Article 311(3) of the LOS Convention, supra note23. See also Article 58 of the Vienna Convention on inter se suspension.

94 Articles III and XI outlaw, respectively, discrimination regarding imports as opposed to domestic products and the imposition of quantitative border measures.

95 Article XX allows for trade restrictions, for example, that are “necessary” to protect human health. Another example is an inter se agreement between some WTO members only to impose an import ban on hormone-treated beef as between themselves alone, notwithstanding the WTO reports on European Communities— Measures Concerning Meat and Meat Products (Hormones), WTO Docs. WT/DS26/R, WT/DS26/AB/R (Feb. 13, 1998) (declaring such a ban inconsistent with the SPS Agreement) [hereinafter EC:—Hormones].

96 If the rights of a third party are nevertheless affected, this party can bring a claim before a WTO panel, which should enforce its WTO rights over and above the inter se agreement to which the WTO member in question is not a party. See infra part II.

97 Even if these rights and obligations derive from a multilateral treaty. The system of WTO countermeasures provides proof of how “bilateral” in nature the WTO still is, as countermeasures take the form only of state-to-state “suspensions of concessions or other obligations,” not collective sanctions. Pauwelyn, supra note 26, at 342.

98 The ILC commentary to Article 41 of the Vienna Convention, supra note 7, notes that” [h]istory furnishes a number of instances of inter se agreements which substantially changed the regime of the treaty and which overrode the objections of interested States.” The one example provided is that of “an inter se agreement modifying substantive provisions of a disarmament or neutralization treaty.” Dietrich Rauschning, The Vienna Convention on The Law of Treaties: Travaux Préparatoires 303 (1978).

99 [1958] 2 Y.B. Int’l L. Comm’n 27-28, 41-45, UN Doc. A/CN.4/SER.A/1958/Add.1, in particular the suggested Article 19.

100 The language of Article 41(1)(b)(ii) actually stems from Reservations to the Convention on Genocide, Advisory Opinion, 1951 ICJ Rep. 23 (May 28) (proscribing reservations to a treaty that are not compatible with its object and purpose), and is confirmed in Articles 19(c), 58, and 60 of the Vienna Convention.

101 The effect of such changes on WTO dispute settlement is discussed in the section on practical consequences of the approach suggested here, infra p. 566.

102 See text at note 17 supra.

103 Kontou, supra note 17, at 24.

104 See text at note 49 supra.

105 See Indonesia—Certain Measures Affecting the Automobile Industry, WTO Doc. WT/DS54/R, para. 14.28 & n.649 (July 23, 1998) [hereinafter Indonesia—Autos].

106 See text at note 207 infra.

107 Wilfred Jenks, C., The Conflict of Law-Making Treaties, 1953 Brit.Y.B. Int’l L. 401, 426 .

108 Guatemala—Anti-Dumping Investigation Regarding Portland Cement from Mexico, WTO Doc. WT/DS60/AB/R, para. 65 (Nov. 5, 1998); see also Indonesia—Autos, supra note 105, para. 14.99.

109 This situation falls within the wider definition of conflict, as found in the panel report European Communities— Regime for the Importation, Sale and Distribution of Bananas, WTO Doc. WT/DS27/R, para. 7.159 (Sept. 25,1997) [hereinafter EC—Bananas]. This panel included within the notion of conflict “the situation where a rule in one agreement prohibits what a rule in another agreement explicitly permits.” In my view, this interpretation is correct.

110 European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 UNTS221.

111 See note 72 supra and corresponding text.

112 I stress that the right should be one that was granted or negotiated explicitly. The residual right in general international law sometimes referred to as “what is not prohibited is allowed,” based on S.S. Lotus (Fr. v. Turk.), 1927 PCIJ (ser. A) No. 10, cannot, of course, be sufficient to overrule a conflicting obligation.

113 See text at notes 5-12 supra.

114 There is, of course, the ICJ, the “principal judicial organ of the United Nations.” UN Charter Art. 92. But the Court has compulsory jurisdiction only as between some states and as regards certain subject matters (such as those defined under the optional clause system of Article 36(2) of the ICJ Statute).

115 For exceptions, see the section on implied jurisdiction infra p. 555.

116 UN Charter Art. 2(3).

117 Id., Art. 33(1).

118 ICJ Statute Art. 38; LOS Convention, supra note 23, Art. 291.

119 The fact that a rule cannot be judicially enforced does not mean, though, that it will not be complied with. Compliance mechanisms other than judicial settlement may be as effective or even more effective in certain cases than third-party adjudication.

120 That is, a political WTO body on which all WTO members, without exception, have a seat.

121 DSU Art. 3.10.

122 Also, for example, as compared to Part XV of the LOS Convention. See, in particular, the recent arbitration award, Southern Bluefin Tuna Case (Austl. & N.Z. v. Japan), Jurisdiction and Admissibility, 39 ILM 1359 (2000), at <http://www.oceanlaw.net/cases/tuna2a.htm> [hereinafter Bluefin Tuna Award], where the arbitrators held that they did not have jurisdiction.

123 See supra notes 33, 34, 35.

124 But see supra note 119.

125 See, e.g., GATT Art. XXIII(l)(a), (b), (c).

126 DSU Article 25 is not limited to claims under WTO covered agreements. The only requirement is that the disputes “concern issues that are clearly defined by the parties.” DSU Art. 25.1.

127 See text at note 39 supra.

128 See supra note 42.

129 Agreement on Technical Barriers to Trade, Apr. 15,1994, WTO Agreement, Annex 1A, Legal Texts, supra note 1, at 138 [hereinafter TBT Agreement]; Agreement on Subsidies and Countervailing Measures, Apr. 15, 1994, WTO Agreement, Annex 1A, Legal Texts, supra, at 264 [hereinafter SCM Agreement].

130 This agency is referred to, for example, in European Communities—Measures Affecting the Prohibition of Asbestos and Asbestos Products, WTO Doc. WT/DS135/R, para. 8.186 (Apr. 5, 2001) [hereinafter EC—Asbestos]. Whereas the SPS Agreement refers to three specific “sister institutions” (Codex Alimentarius Commission, International Office of Epizootics, and International Plant Protection Convention), see SPS Agreement Art. 3.1 & Annex A, para. 3, the TBT Agreement refers to international standards developed by any “[b]ody or system whose membership is open to the relevant bodies of at least all Members,” TBT Agreement Art. 2.4 & Annex 1, para. 4.

131 See, for example, with respect to the Bern Convention, United States—Section 110(5) of the US Copyright Act, WTO Doc. WT/DS160/R (July 27, 2000) [hereinafter U.S.—Copyright].

132 SPS Agreement Arts. 3.1, 3.2.

133 Nuclear Tests (Austl. v. Fr.; NZ v. Fr.), 1974 ICJ Rep. 253, 262, para. 29 & 427, 466, para. 30.

134 The WTO jurisprudence outlined infra at p. 563 supports this conclusion.

135 See the very broad statements on the ICJ’s implied jurisdiction in Northern Cameroons (Cameroon v. UK), 1963 ICJ Rep. 15, 29 (Dec. 2); Nuclear Tests, 1974 ICJ Rep. at 259-60, para. 23 & 463, para. 23.

136 It could be argued that to the extent the WTO treaty did not contract out of the general international law principle prescribing reparation for breach of international law, WTO panels, in their enforcement of WTO claims, should be empowered to recommend the granting of reparation as part of their implied jurisdiction. See text at note 45 and note 51 supra.

137 ICJ Statute Art. 41; LOS Convention, supra note 23, Art. 290.

138 See Thirlway, Hugh, The Law and Procedure of the ICJ 1960-1989, 1998 Brit. Y.B. Int’l L. 1, 19 .

139 United States—Anti-Dumping Act of 1916, WTO Doc. WT/DS136/AB/R, para. 54 n.30 (Sept. 26, 2000).

140 Prosecutor v. Tadić, Appeal on Jurisdiction, No. IT-94-1-AR72, paras. 18, 15 (Oct. 2, 1995). Prof. Georges Abi-Saab, now a member of the WTO Appellate Body, was a judge on this appeals chamber.

141 United States—Measures Affecting Imports of Woven Wool Shirts and Blouses, WTO Doc. WT/DS33/AB/R, at 19 (May 23, 1997) [hereinafter U.S.—Shirts and Blouses]. In the Appellate Body report Australia—Measures Affecting the Importation of Salmon, WTO Doc. WT/DS18/AB/R, para. 223 (Nov. 6, 1998), this principle was further refined as meaning, in the WTO context:

A panel has to address those claims on which a finding is necessary in order to enable the DSB to make sufficiently precise recommendations and rulings so as to allow for prompt compliance by a Member with those recommendations and rulings “in order to ensure effective resolution of disputes to the benefit of all Members.”

142 Border and Transborder Armed Actions (Nicar. v. Hond.), 1988 ICJ Rep. 69, 76, para. 16 (Dec. 20). There, the ICJ opened a phase of the proceedings devoted to jurisdiction and admissibility on its own initiative.

143 United States—Anti-Dumping Act of 1916, supra note 139, para. 54 n.30. The Appellate Body agreed with the panel that “some issues of jurisdiction may be of such a nature that they have to be addressed by the Panel at any time.” Id., para. 54 (quoting panel report, WTO Doc. WT/DS136/R, para. 5.17 (Sept. 26, 2000)).

144 See p. 559 infra.

145 1988 ICJ Rep. at 76, para. 16.

146 Id. (quoting Chorzów Factory (Ger. v. Pol.), Jurisdiction, 1927 PCIJ (ser. A) No. 9, at 32 (July 26)).

147 See Pauwelyn, Joost, Evidence, Proof and Persuasion in WTO Dispute Settlement, Who Bears the Burden”? 1 J. Int’l Econ.L. 227 (1998).

148 United States—Sections 301-310 of the Trade Act of 1974, WTO Doc. WT/DS152/R, para. 7.43 (Jan. 27, 2000) [hereinafter U.S.—Section 301 ]. But see the limited exception provided for in SPS Agreement Art. 11.3, supra note 73.

149 Schoenbaum, Thomas, WTO Dispute Settlement: Praise and Suggestions for Reform, 47 Int’l & Comp. L.Q. 647, 653 (1998), refers to DSU Article 11 as an “implied powers” clause that “should be interpreted broadly so that the panels and Appellate Body can decide all aspects of a dispute.”

150 A term used by Boyle, Alan, Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction, 46 Int’l & Comp. L.Q. 37, 41 (1997).

151 The Court here quoted a U.S. reservation to ICJ jurisdiction. Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.) Jurisdiction and Admissibility, 1984 ICJ Rep. 392, para. 67 (Nov. 26) [hereinafter Nicaragua]. On the overlap of treaty and custom, see Nicaragua, supra, Merits, 1986 ICJ Rep. 14, para. 175 (June 27). For forceful critiques, see the dissenting opinions by Judges Schwebel, 1984 ICJ Rep. at 613-14, 616 (noting, for example, that “Nicaragua’s claims are so integrally and essentially bound up with the treaty provisions on which they rely that, if those provisions cannot be pleaded, there is no case which the Court can consider,” and calling the “salami-slicing” approach in this instance “an unreal, artificial, highly constricted—and yet unduly unconstrained— process”); Oda, 1986 ICJ Rep. at 219; and Jennings, id. at 530. Oda had a strong point in saying that “the Court should have proved, not that it can apply customary and general international law independently, but that the dispute referred to it in the Applicant’s claims had not arisen under these multilateral treaties.” In that case, the Court actually did somewhat confuse the issue of applicable law (custom versus treaty) with that of jurisdiction (over certain disputes).

152 United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 3, 19, para. 36 (May 24).

153 Schoenbaum, supra note 149, at 653 n.43.

154 See, e.g., U.S.—Copyright, supra note 131 (which requested information from WIPO).

155 See the dissenting opinion of Judge Schwebel in Nicaragua, supra note 151. Recall also that a WTO panel cannot hear counterclaims, a restriction that may limit its ability actually to resolve a dispute, see Chile—Swordfish, supra note 35 (in the WTO only the European Community complained, but in ITLOS both parties submitted claims).

156 See William, J. Davey, Has the WTO Dispute Settlement System Exceeded Its Authority’? 4 J. Int’l Econ. L. 95 (2001) (discussing what he termed “issue avoidance techniques” such as standing, mootness, ripeness, political appropriateness, and judicial economy).

157 Supra note 133 and corresponding text. In the more recent Fisheries Jurisdiction case, the ICJ redefined Spain’s complaint relating to Canada’s lack of entitlement to exercise jurisdiction on the high seas into a dispute “arising out of or concerning conservation and management measures” regarding which Canada had made a reservation. On that basis, the Court found that it did not have jurisdiction to hear the case. Fisheries Jurisdiction (Spain v. Can.), Jurisdiction, 1998 ICJ Rep. 429, 437 (Dec. 4).

158 The Appellate Body used this approach, not to decide on jurisdiction but on which WTO rules to apply, in EC—Asbestos, supra note 130, WTO Doc. WT/DS135, para. 62 (Mar. 12, 2001).

159 Bluefin Tuna Award, supra note 122, paras. 52, 54. But see the forceful separate opinion by Sir Kenneth Keith.

160 Monetary Gold Removed from Rome in 1943 (Italy v. Fr., UK, & U.S.), 1954 ICJ Rep. 19, 32 (June 15) (stating that “Albania’s legal interests would not only be affected by a decision, but would form the very subject-matter of the decision. In such a case, the Statute cannot be regarded, by implication, as authorizing proceedings to be continued in the absence of Albania.”) This finding was confirmed more recently in East Timor (Port. v. Austl.), 1995 ICJ Rep. 90, 102, para. 28 (June 30). See also Turkey—Restrictions on Imports of Textile and Clothing Products, WTO Doc. WT/DS34/R, paras. 9.4-13 (Nov. 19, 1999) [hereinafter Turkey—Textiles].

161 See Weil, Prosper, “The Court Cannot Conclude Definitively . ..” Non Liquet Revisited, 36 Colum. J. Transnat’l L. 109 (1997). For a potential exception, see supra note 85.

162 EC—Asbestos, supra note 158, para. 186.

163 DSU Arts. 6.2, 7.1.

164 Id., Art. 3.10.

160 See text following note 132 supra.

166 Of course, to the extent that this necessity to rule on non-WTO matters has not led the panel to find that it does not have substantive jurisdiction in the first place or that it does not consider it appropriate to exercise such jurisdiction. See text at note 144 supra.

167 See text at notes 104-12 supra.

168 Other conflict rules to solve intra-WTO conflicts can be found in the Agreement on Agriculture, Apr. 15, 1994, WTO Agreement, Annex 1A, Art. 21, Legal Texts, supra note 1, at 39; TBT Agreement Art. 1.5; and DSU Art. 1.2. Surprisingly, the WTO treaty does not include conflict rules to solve contradictions between provisions in GATT, GATS, and TRIPS. On the GATT/GATS overlap, see Gaffney, John, The GATT and the GATS: Should They Be Mutually Exclusive Agreements? 12 Leiden J. Int’l L. 135 (1999); and the more recent Appellate Body report Canada—Certain Measures Affecting the Automotive Industry, WTO Doc. WT/DS139/AB/R & WT/DS142/AB/R (June 19, 2000). On intra-WTO conflict more generally, see Montaguti, Elisabetta & Lugard, Maurits, The GATT 1994 and Other Annex 1A Agreements: Four Different Relationships ? 3 J. Int’l Econ. L. 473 (2000).

169 See text following note 78 supra.

170 See text at note 67 supra.

171 See text following note 208 infra.

172 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, para. 42 (Apr. 14).

173 LOS Convention, supra note 23, Art. 291; ICJ Statute Art. 38.

174 We deal with DSU Articles 3.2 and 19.2 in text at note 199 infra.

175 Accord Bartels, Lorand, Applicable Law in WTO Dispute Settlement Proceedings, J. World Trade (forthcoming 2001); Palmeter, David & Petros, C. Mavroidis, The WTO Legal System: Sources of Law, 92 AJIL 398, 399 (1998). Contra Eric, Canal-Forgues, Surl’Interprétation dans le droit de l’OMC, 105 Revue Generale De Droit International Public 1, 11 (2001) (“[s]’agissant d’abord du droit applicable il est acquis que les groupes speciaux . . . ne peuvent s’en tenir . .. auxseuls ‘accords vises’ “); Charney, supra note 3, at 219 (“sources of general international law outside of the agreements appear to arise only in the context of treaty interpretation rules”); Marceau, Gabrielle, A Call for Coherence in International Law—Praises for the Prohibition Against “Clinical Isolation “ in WTO Dispute Settlement, J. World Trade, Oct. 1999, at 87, 110 [hereinafter Marceau, Call] (concluding less categorically that “[i]t seems, therefore, that under the DSU not all sources of law may be applied or enforced by WTO adjudicating bodies”); Gabrielle Marceau, WTO Agreements Cannot Be Interpreted in Clinical Isolation from Public International Law at 3 (World Bank Seminar on International Trade Law, Oct. 24-25, 2000) (on file with author) [hereinafter Marceau, WTO Agreements] (“Under the DSU only provisions of the ‘covered agreements’ can be the ‘applicable law’ applied and enforced by panels and the Appellate Body”); Trachtman, supra note 41, at 342 (stating that the explicit language in the DSU “would be absurd if rights and obligations arising from other international law could be applied by the DSB” and that” [w]ith so much specific reference to the covered agreements as the law applicable in WTO dispute resolution, it would be odd if the members intended non-WTO law to be applicable”).

176 Korea—Government Procurement, supra note 57, para. 7.101 n.755.

177 As noted by the First Committee in the travaux préparatories of the ICJ Statute concerning the addition to Article 38 of the obligation for the Court to decide “in accordance with international law”: “The lacuna in the old Statute with reference to this point did not prevent the [PCIJ] from regarding itself as an organ of international law; but the addition will accentuate that character of the new Court.” 13 U.N.C.I.O. Docs. 164, 284, 392 (1945), quoted in 3 Shabtairosenne, The Law and Practice of The International Court, 1920-1996, at III.375 (1997).

178 Implicitly incorporating Article 31 (3) (c) of the Vienna Convention, supra note 7. See text at note 252 infra.

179 Nguyen, Daillier, & Pellet, supra note 10, at 356-81. In the Continental Shelf case (Tunisia v. Libya), the ICJ confirmed that disputing parties, by agreement, may add to the applicable law as prescribed in Article 38 (in casu, “new accepted trends” in the law of the sea), but that they cannot detract from it (“the Court is, of course, bound to have regard to all the legal sources specified in Article 38”). Continental Shelf (Tunis, v. Libya), 1982 ICJ Rep. 18, 37, 38 (Feb. 24).

180 See text at note 237 infra.

181 EC—Bananas, supra note 109, para. 133.

182 Id., para. 10.

183 See U.S.—Anti-Dumping Act, supra note 139, para. 54 n.30.

184 U.S.—Shirts and Blouses, supra note 141, at 14.

185 India—Patent Protection for Pharmaceutical and Agricultural Chemical Products, WTO Doc. WT/DS50/AB/R, para. 65 (Jan. 16, 1998) [hereinafter India—Patent].

186 U.S.—Shrimp/Turtle, supra note 34, para. 107.

187 Canada—Measures Affecting the Export of Civilian Aircraft, WTO Doc. WT/DS70/AB/R, para. 202 (Aug. 20, 1999).

188 See supra note 141 and corresponding text.

189 Brazil—Measures Affecting Desiccated Coconut, WTO Doc. WT/DS22/AB/R, at 15 (Mar. 20, 1997); accord EC—Bananas, supra note 109, para. 235; Canada—Patent Protection Term, WTO Doc. WT/DS170/AB/R, paras. 71-74 (Oct. 12, 2000).

190 Korea—Government Procurement, supra note 57, paras. 7.123—.126.

191 EC—Bananas, supra note 109, WTO Doc. WT/DS27/ARB, para. 6.16 (arb. Mar. 17, 2000) (noting “the general international law principle of proportionality of countermeasures”); Brazil-—Export Financing Programme for Aircraft, WTO Doc. WT/DS46/ARB, para. 3.44 & nn.45, 48 (arb. Aug. 28, 2000) [hereinafter Brazil—Aircraft] (the objective of countermeasures is to “effectively induce compliance”).

192 Canada—Measures Affecting the Importation of Milk, WTO Doc. WT/DS103/R&WT/DS113/R, para. 7.77 & n .427 (Oct. 27, 1999) [hereinafter Canada—Milk] (supporting provincial milk marketing boards as an “agency” of Canada); see also Turkey—Textiles, supra note 160, para. 9.33.

193 See supra note 75 and text at note 218 infra.

194 EC—Bananas, supra note 109, para. 164. A distinction should be made between treaties or rules agreed upon by WTO members (such as amendments pursuant to Article X of the WTO Agreement or renegotiations under either Article XXVIII of GATT or Article XXI of GATS) and rules set out in acts by WTO organs that are part of the WTO as an international organization (such as waivers pursuant to Article IX:3 of the WTO Agreement or DSB decisions to suspend concessions pursuant to DSU Article 22.6). The former acts by WTO members alter WTO covered agreements (and hence automatically become part of those agreements). The latter acts by WTO organs are not strictly speaking part of WTO covered agreements. When applying such acts, the WTO judiciary is thus applying WTO rules that are not part of WTO covered agreements.

195 EC—Bananas, supra note 109, para. 167.

196 U.S.—Section 301, supra note 148, para. 7.114.

197 For a possible exception with respect to treaty interpretation, see text following note 259 infra.

198 See supra notes 173, 179. Article 291 of the LOS Convention, supra note 23, on “applicable law” is on point. The reference to “rules of international law not inconsistent with this Convention” does not amount to a general exclusion of all international law other than that in the Convention. It simply refers back to and confirms the conflict rules in Article 311 of the Convention. If Article 311 directs that a rule in the LOS Convention is to prevail over another rule, then Article 291 simply confirms that this should also be so in the judicial enforcement of the Convention rule, i.e., that the other rule (“inconsistent with this Convention”) may not be applied over and above the Convention rule.

199 Bartels, supra note 175.

200 The immediate context of the relevant passage in Article 3.2 confirms this reading. The sentence directly follows the instruction for panels to clarify WTO covered agreements “in accordance with customary rules of interpretation of public international law.” This is a clear indication that the last sentence of Article 3.2 also deals with the interpretive function of panels.

201 South West Africa (Eth. v. S. Afr.; Liber, v. S. Afr.), Second Phase, 1966 ICJ Rep. 48 (July 18).

202 See also, but in a much more limited way, Article 311(6) of the LOS Convention, supra note 23.

203 As the ILC Commentary to Article 30 of the Vienna Convention, supra note 7, reads: “Article 103 [UN Charter] apart, clauses in treaties which purport to give the treaty priority over another treaty, whether earlier or later in date, do not by themselves appear to alter the operation of the general rules of priority set out in paras. 3 and 4 of [Art. 30],” quoted in Rauschning, supra note 98, at 233. Indeed, the only type of priority clause given explicit effect in Article 30(2) is one stating that the new treaty is “subject to, or that it is not to be considered as incompatible with, an earlier or later treaty.” See also Wolfram Karl, Conflicts Between Treaties, in [Instalment 7] Encyclopedia of Public International Law 468, 471 (1984) (stating the view that “[c]lauses which claim priority over future treaty engagements are futile,” given that they can always be overruled by later agreement of all parties or some of them alone, as long as the conditions in Article 41 of the Vienna Convention are met).

204 See text at note 237 infra.

205 See text following note 170 supra.

206 It could, however, resort to Article 66 (a) of the Vienna Convention and bring the other WTO member before the ICJ (if that other member is a party to the Vienna Convention).

207 For a possible exception under treaty interpretation, see p. 575 infra.

208 See text at notes 64-103 supra.

209 The general rule is that amendments should be adopted by consensus (WTO Agreement Art. X: 1). However, if consensus is not reached, most amendments can be adopted by a two-thirds majority of WTO members (and others only upon acceptance by all WTO members) (Art. X:3-5).

210 In addition, besides other treaties, subsequent practice and custom can affect the WTO treaty (irrespective of amendment provisions). Sec Karl, supra note 203, at 387-89. See generally Kontou, supra note 17. Indeed, if such implicit forms of consent as subsequent practice and custom can alter or revise a treaty notwithstanding amendment provisions in the treaty itself or the Vienna Convention, then a fortiori formal inter se agreements to which certain WTO members have explicitly agreed (such as a post-1994 environmental convention) must have the capacity to affect WTO rules as between the parties to these agreements.

211 See text at notes 13-24 supra.

212 This point is made by Marceau, supra note 175, at 124.

213 See text at note 5 supra. Even today, each WTO member has unique obligations depending, inter alia, on the provisions in its schedules of concessions.

214 See Petros, C. Mavroidis, Trade and Environment After the Shrimps-Turtles Litigation, J.World Trade, Feb. 2000, at 73, 77 .

215 EC—Poultry, supra note 38, para. 81.

216 Id., para. 79.

217 EC—Hormones, supra note 94, WTO Doc. WT/DS26/ARB, para. 50 (arb. July 12, 1999).

218 Argentina—Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items, WTO Doc. WT/DS56/AB/R, para. 65 (quoting the IMF memorandum) & para. 69 (Apr. 22, 1998).

219 Id., para. 69.

220 Id., para. 70.

221 Id., paras. 69-74.

222 EC—Hormones, supra note 94, para. 123.

223 Id.

224 Id., paras. 124-25. It is unclear whether the European Community referred to the “precautionary principle” either (1) as an element to be looked at in the interpretation of Article 5 of the SPS Agreement; or (2) as a non- WTO rule of international law in defense of a violation of Article 5. Although the former seems more accurate (the Community was claiming that because its measures were precautionary in nature, they satisfied the requirements of Article 5), the latter hypothesis is more interesting and is the one we further examine in this paper.

225 Or at least to assume that it was customary law and on that basis further examine whether it could possibly overrule SPS treaty rules.

226 See text at note 57 supra.

227 Korea—Government Procurement, supra note 57, para. 7.98. The multilateral Government Procurement Agreement, amended Apr. 15, 1994, is Annex 4(b) to the WTO Agreement.

228 Korea—Government Procurement, supra note 57, para 7.100.

229 Id., para 7.101.

230 See text at note 133 supra.

231 This provision requires, for example, that Korea had impaired benefits or impeded the attainment of objectives by means of the “application” of a “measure,” something error in treaty formation does not involve.

232 The only way it could be said to fall within a WTO panel’s jurisdiction would be to argue that it amounts to Korea’s impeding the attainment of an objective under the GPA (i.e., the objective of having a valid agreement in the first place) “as the result of the existence of any other situation” (namely, the situation of error in favor of the United States) in the sense of GATT Article XXIII.1 (c) pursuant to a so-called situation complaint.

233 See the example of the slave trade agreement referred to in text at notes 205—06 supra.

234 See text at note 104 supra.

235 See Marceau, Call, supra note 175, at 131.

236 See, e.g., Montreal Protocol, supra note 84, Art. 4; Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Mar. 22, 1989, Art. 4(5), 28 ILM 657 (1989).

237 Not the wider sense it is sometimes given with reference to all possible actions that a judge can undertake (including, for example, applying other international law and the decision referred to earlier of determining which of two seemingly applicable laws must prevail).

238 As the ICJ stated in Fisheries Jurisdiction, supra note 157, para. 68, with respect to interpretation:

It is one thing to seek to determine whether a concept is known to a system of law, in this case international law...: the question of the existence and content of the concept within the system is a matter of definition. It is quite another matter to seek to determine whether a specific act falling within the scope of a concept . . . violates the normative rules of that system: the question of the conformity of the act with the system is a question of legality.

239 U.S.—Shrimp/Turtle, supra note 34, paras. 128-32.

240 See text at note 252 infra.

241 See text at note 199 supra.

242 U.S.—Gasoline, supra note 52, at 23, confirmed in, inter alia, Japan—Taxes, supra note 54, at 12.

243 India—Patent, supra note 185, para. 46. See ILC Commentary to Vienna Convention Arts. 31, 32, Rauschning, supra note 98, at 252-53 (“the [ICJ] has more than once stressed that it is not the function of interpretation to revise treaties or to read into them what they do not, expressly or by implication, contain”).

244 United States—Import Measures on Certain Products from the European Communities, WTO Doc. WT/DS165/AB/R, para. 92 (Jan. 10, 2001).

245 See text at note 239 supra.

246 Canal-Forgues, supra note 175, at 5; Charney, supra note 3, at 219; Marceau, Call, supra note 175, at 110; Marceau, WTO Agreements, supra note 175, at 3; Trachtman, supra note 41, at 343.

247 See supra note 54 and corresponding text.

248 Article IX of the WTO Agreement has contracted out of Article 31 (3) (a) on subsequent agreements “between the parties” regarding interpretation. It suffices, in the WTO, that three quarters of WTO members agree to an interpretation of the WTO treaty for that interpretation to be authoritative.

249 But see infra note 262.

250 EC—Poultry, supra note 38, para. 83.

251 This explains the Appellate Body’s chastisement of a panel for not having considered certain non-WTO rules (legal instruments created in the context of the World Customs Organization) that were obviously related to the WTO rules under interpretation, even though the parties to the dispute had not invoked these non-WTO rules. European Communities—Customs Classification of Certain Computer Equipment, WTO Doc. WT/DS62/AB/R, paras. 89-90 (June 26, 1998) [hereinafter EC—Computer Equipment]. In contrast, for a panel to refer to non- WTO rules as facts, outlined supra in text following note 234, it seems that one of the parties must first raise these non-WTO rules. That party then also has the burden of proof in this respect.

252 Right of Passage over Indian Territory (Port. v. India), Preliminary Objections, 1957 ICJ REP. 125,142 (Nov. 26).

253 Higgins, Rosalyn, Some Observations on the Inter-Temporal Rule in International Law, in Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krzysztof Skubiszewski 173 (Makarczyk, Jerzy ed., 1999).

254 See text following note 78 supra and, in particular, supra note 82. Focusing more on treaty interpretation, see Voting Procedures on Questions Relating to Reports and Petitions Concerning the Territory of South West Africa, Advisory Opinion, 1955 ICJ Rep. 67, 106 (June 7); Oppenheim, supra note 50, at 1268.

255 An approach that was followed in U.S.—Shrimp/Turtle, supra note 34, paras. 128-32 (stating in paragraph 129 that the term “exhaustible natural resources” in GATT Article XX “must be read by a treaty interpreter in the light of contemporary concerns of the community of nations about the protection and conservation of the environment,” not as it was understood in 1947).

256 In the Golder case, 57ILR 201, 217 (Eur. Ct. H.R. 1975), for example, it was held that the reference to “relevant rules of international law” includes general principles of law. Sinclair, supra note 81, at 119, states that this reference “may be taken to include not only the general rules of international law but also treaty obligations existing for the parties.”

257 U.S.—Shrimp/Turtle, supra note 34, para. 158. In footnote 157 at paragraph 166 of this report, the first and so far the only explicit reference to Article 31 (3) (c) is made. See also U.S.—Tax Treatment for “Foreign Sales Corporations,” WTO Doc. WT/DS108/AB/R, para. 166 (Mar. 20, 2000) (referring to the principle of good faith as “at once a general principle of law and a principle of general international law”); Brazil—Aircraft, supra note 191, paras. 2.10-.11 & n.l5.

258 EC—Poultry, supra note 38, para. 146 (in order to conclude that the term “c.i.f. import price” in Article 5.1 (b) of the Agreement on Agriculture refers simply to the c.i.f. price without customs duties and taxes).

259 EC—Computer Equipment, supra note 251, para. 70 (in interpreting DSU Article 6.2); see also EC— Hormones, supra note 94, para. 133 & n.138 (referring to “fundamental fairness,” “due process,” and “natural justice” in the context of DSU Article 11).

260 EC—Computer Equipment, supra note 251, para. 84.

261 Article 31 (2) (a), for example, uses the expression “all the parties” when it comes to agreements relating to the treaty made in connection with its conclusion.

262 The commentary to Article 31 (3) (b) states as follows:

The text provisionally adopted in 1964 spoke of a practice which “establishes the understanding of all the parties”. By omitting the word “all” the Commission did not intend to change the rule. It considered that the phrase “the understanding of the parties” necessarily means “the parties as a whole”. It omitted the word “all” merely to avoid any possible misconception that every party must individually have engaged in the practice where it suffices that it should have accepted the practice.

Quoted in Rauschning, supra note 98, at 254. As a result, if “parties” in Article 31 (3) (b) means “all the parties” without requiring that all of them have explicitly agreed with (or actually engaged in) the practice, there is no reason to give a different meaning to “parties,” as the term is used in Article 31 (3) (c).

263 See EC—Computer Equipment, supra note 251; EC—Poultry, supra note 38; Canada—Milk, supra note 192. But as noted in OPPENHEIM, supra note 50, at 1268: “An interpretation agreed between some only of the parties to a multilateral treaty may, however, not be conclusive, since the interests and intentions of the other parties may have to be taken into consideration.”

264 U.S.—Shrimp/Turtle, supra note 34, para. 130 nn.110-13.

265 Id., para. 129. The GATT panel in United States—Restrictions on Imports of Tuna, GATT Doc. DS29/R (June 10, 1994, not adopted), in contrast, read Article 31 (with particular focus on Article 31 (3) (a)) as allowing reference only to non-WTO rules of international law that had been accepted by all GATT contracting parties. Since CITES was not so accepted, the panel refused to take it into account. Id., para. 5.19.

266 DSU Art. 3.2. Note that this provision is not limited to treaty interpretation. For the proposition that different rules may apply as regards, for example, custom and unilateral acts of states, see Nicaragua, Merits, supra note 151, para. 178 (custom); Fisheries Jurisdiction, supra note 157, para. 46 (unilateral declarations).

267 For example, the Appellate Body had to interpret a non-WTO rule in EC—Bananas, supra note 109, WTO Doc. WT/DS27/AB/R, at 167 (Sept. 9,1997) (“we have no alternative but to examine the provisions of the Lomé Convention ourselves in so far as it is necessary to interpret the Lomé waiver”).

* I am extremely grateful to Petros Mavroidis, Gabrielle Marceau, Pieterjan Kuijper,Joel Trachtman, Lorand Bartels, Mariano Garcia Rubio, Alan Boyle, and Erik Wijkstrom for sharing their ideas and comments with me on this topic. The opinions expressed are strictly personal. All errors, of course, remain mine.

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