Abstract
The United States criticizes the Appellate Body for 'making law' by interpreting and applying the World Trade Organization (WTO) agreements in disregard of the intention of WTO members. The criticism of the United States is not without legitimate basis in that Members have few tools with which they may weigh in on the interpretation of the WTO agreements, even if the Appellate Body makes an erroneous interpretation. As much as the Appellate Body's contribution to the security and predictability of the multilateral trading system warrants praise, the dysfunction of legislative and political mechanisms to counterbalance the growing de facto 'authority' of the Appellate Body should be a cause for concern. Against this background, this article proposes a new mechanism that would allow Members to disagree with interpretations by the Appellate Body and pronounce their own interpretations of the WTO agreements. The mechanism would be built upon 'interpretative declarations.
| Original language | English |
|---|---|
| Pages (from-to) | 792-819 |
| Number of pages | 28 |
| Journal | Journal of World Investment and Trade |
| Volume | 20 |
| Issue number | 6 |
| DOIs | |
| Publication status | Published - 2020 |
Keywords
- Appellate Body
- Guide to Practice on Reservations to Treaties
- Vienna Convention on the Law of Treaties
- authoritative interpretation
- interpretative declaration
- overreach
- precedent
- subsequent agreement and subsequent practice
ASJC Scopus subject areas
- Business and International Management
- Political Science and International Relations
- Economics, Econometrics and Finance(all)
- Law
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In: Journal of World Investment and Trade, Vol. 20, No. 6, 2020, p. 792-819.
Research output: Contribution to journal › Article › peer-review
}
TY - JOUR
T1 - The Appellate Body's Power to Interpret the WTO Agreements and WTO Members' Power to Disagree with the Appellate Body
AU - Fukunaga, Yuka
N1 - Funding Information: This article has argued that, while interpretations made by the Appellate Body are de facto authoritative in the sense that they should be followed by panels and the Appellate Body in future cases, they do not deprive Members of their power to disagree with the Appellate Body’s interpretations and make their own interpretations. It was then pointed out that the existing mechanisms under the WTO agreements have failed to allow Members to exercise such power. Against this background, this paper has proposed a new mechanism by which Members may effectively pronounce their own interpretations. The proposal might appear rather innovative but would be built upon interpretative declarations under general international law and could be introduced into the WTO with minimum or no amendment to the DSU. It would enable the reflection of Members’ intent as to the meaning of the WTO agreements in the interpretation by the Appellate Body, mostly through the application of Article 32 of the VCLT. Most importantly, it would reestablish a proper check and balance in WTO dispute settlement. * LLD (University of Tokyo); LLM (University of Tokyo); LLM (University of California, Berkeley); LLB (Hitotsubashi University). An earlier version of this article was presented at the Sixth Biennial Conference of the Society of International Economic Law (SIEL) in July 2018 in Washington, DC. The author is grateful for comments and suggests from participants at the conference, in particular, Professor Giorgio Sacerdoti and Professor Dr. Hélène Ruiz Fabri. All errors are the responsibility of the author. The research leading to this article was supported by JSPS KAKENHI Grant Number 18K01284. 1 An analysis from an institutional perspective suggests that the blocking of the reappointment is a manifestation of a trilemma of judicial independence, judicial accountability and judicial transparency that is inevitable in all international courts and tribunals. Jeffrey L Dunoff and Mark A Pollack, ‘The Judicial Trilemma’ (2017) 111 AJIL 225, 226–27, 260–71; See also Isabelle Van Damme, ‘The Application of “The Judicial Trilemma” to the WTO Dispute Settlement System’ (2017) 111 AJIL Unbound 359. 2 United States Trade Representative, ‘2018 Trade Policy Agenda and 2017 Annual Report of the President of the United States on the Trade Agreements Program’ (March 2018) 22–23 < https://ustr.gov/about-us/policy-offices/press-office/reports-and-publications/2018/2018-trade-policy-agenda-and-2017 > accessed 9 August 2019. 3 Understanding on Rules and Procedures Governing the Settlement of Disputes (1 January 1995) 1869 UNTS 401 (DSU). 4 ibid 23–25. 5 ibid 26–28. 6 See Letter from the Living Former Appellate Body Members to the Chairman of the WTO DSB (31 May 2016) < http://worldtradelaw.typepad.com/files/abletter.pdf > accessed 9 August 2019. An author points out that it also violates due process of law under the DSU. Ernst-Ulrich Petersmann, ‘Between “Member-Driven” WTO Governance and “Constitutional Justice”: Judicial Dilemmas in GATT/WTO Dispute Settlement’ (2018) 21 JIEL 103, 107. 7 See Statement of Korea, on behalf of Brazil, Canada, the European Union, Guatemala, India, Indonesia, Israel, Jamaica, Korea, Mexico, Morocco, Sri Lanka, Switzerland, Thailand and Viet Nam, at a meeting of the Dispute Settlement Body on 22 June 2016 (2 September 2016) WT/DSB/M/380, para 11.3. 8 Cf Claus-Dieter Ehlermann & Lothar Ehring, ‘The Authoritative Interpretation Under Article IX:2 of the Agreement Establishing the World Trade Organization: Current Law, Practice and Possible Improvements’ (2005) 8 JIEL 803, 812–13. 9 This article focuses on interpretations by the Appellate Body, but the arguments would apply to interpretations by panels mutatis mutandis . 10 Views expressed by Members at DSB meetings might have implicitly influenced the thinking of panelists and Appellate Body members, but only in a few limited cases and in an obscure manner. Cf Joshua Paine, ‘The WTO’s Dispute Settlement Body as a Voice Mechanism’ (2019) 20 JWIT 820. However, openly acknowledging the legal significance of the views would discourage Members from expressing their views at DSB meetings while, generally speaking, Members should be encouraged to express views more actively at DSB meetings. Cosette D Creamer and Zuzanna Godzimirska, ‘Deliberative Engagement Within the World Trade Organization: A Functional Substitute for Authoritative Interpretations’ (2016) 48 NYU J Intl L & Pol 413, 452–57. 11 WTO, ‘Negotiations on Improvements and Clarifications of the Dispute Settlement Understanding: Further Contribution of the United States on Improving Flexibility and Member Control in WTO Dispute Settlement: Communication from the United States’, Special Session of the Dispute Settlement Body (24 October 2005) TN/DS/W/82, 3–4; WTO, ‘Flexibility and Member Control: Revised Textual Proposal by Chile and the United States: Communication from Chile and the United States’, Special Session of the Dispute Settlement Body (31 May 2007) TN/DS/W/89, 3. 12 Flexibility and Member Control (n 11) 1, 3. 13 WTO, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft , Report of the Appellate Body (18 May 2011) WT/DS316/AB/R, ANNEX III, para 7, fn 1. 14 The concept of obiter dicta is not explicitly mentioned in the DSU, but making statements in the nature of obiter dicta is not explicitly or implicitly prohibited by the DSU. Cf Henry Gao, ‘Dictum on Dicta : Obiter Dicta in WTO Disputes’ (2018) 17 World Trade Rev 509, 517–32. 15 2018 Trade Policy Agenda (n 2) 26–27. 16 DSU, art 3.7. 17 ibid art 11. 18 ibid art 3.2. 19 WTO, United States – Final Anti-Dumping Measures on Stainless Steel from Mexico , Report of the Appellate Body (30 April 2008) WT/DS344/AB/R, para 160. 20 DSU, art 3.2. 21 Cf Hersch Lauterpacht, The Development of International Law by the International Court (CUP 1982) 37. 22 Cf Mohamed Shahabuddeen, Precedent in the World Court (CUP 1996) 153–60; See also WTO, Minutes of the Meeting Held in the Centre William Rappard on 10 January 2001 (Statement of the United States), Dispute Settlement Body (22 February 2001) WT/DSB/M/96, para 51. In particular, such pronouncements should be and can be clearly distinguished from interpretations adopted by Members pursuant to Article IX:2 of the Marrakesh Agreement. WTO, Argentine – Definitive Anti-Dumping Duties on Poultry from Brazil , Report of the Panel (22 April 2003), WT/DS241/R, para 7.12. 23 Cf Barcelona Traction, Light and Power Company, Limited , Judgment [1970] ICJ Rep 3, Separate Opinion of Judge Sir Gerald Fitzmaurice, para 2. 24 Gregory Shaffer, Manfred Elsig and Sergio Puig, ‘The Extensive (but Fragile) Authority of the WTO Appellate Body’ (2016) 79 Law & Contemp Probs 237, 260–61. 25 WTO, United States – Measure Affecting Imports of Woven Wool Shirts and Blouses from India , Report of the Appellate Body (25 April 1997) WT/DS33/AB/R, 19. 26 WTO, United States – Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom , Report of the Appellate Body (10 May 2000) WT/DS138/AB/R, para 73. 27 WTO, United States – Subsidies on Upland Cotton , Report of the Appellate Body (3 March 2005) WT/DS267/AB/R, paras 510, 761. 28 DSU, art 3.7. 29 ibid art 3.4; An Appellate Body member once pointed out in its separate opinion that ‘[t]he Appellate Body cannot be expected to offer interpretative guidance regarding provisions of the covered agreements in an abstract manner beyond the scope of what is required in a particular dispute. To do so would go beyond the Appellate Body’s adjudicatory function as contemplated under the DSU.’ WTO, India – Certain Measures Relating to Solar Cells and Solar Modules , Report of the Appellate Body (16 September 2016) WT/DS456/AB/R, paras 5.161–5.162. This member continued that ‘an Appellate Body report that appropriately disposes of the matter at issue, which ultimately serves to clarify the relevant provisions of the covered agreement, is not only required under the DSU, it is also important in that it allows the DSB to make sufficiently precise recommendations and rulings ‘in order to ensure effective resolution of disputes to the benefit of all Members’. 30 See WTO, DSB Minutes of the Meeting (n 22) para 19; See also WTO, Minutes of the Meeting Held in the Centre William Rappard on 23 August 2001 (Statement of the United States), Dispute Settlement Body (2 October 2001) WT/DSB/M/108, para 51; WTO, Minutes of the Meeting Held in the Centre William Rappard on 23 May 2016 (Statement of the United States), Dispute Settlement Body (29 August 2016) WT/DSB/M/379, para.6.4; WTO, Minutes of the Meeting Held in the Centre William Rappard on 28 May 2018 (Statement of the United States), Dispute Settlement Body (31 August 2018) WT/DSB/M/413, paras 10.5–10.9. 31 WTO, Report by the Chairman, Ambassador Ronald Saborío Soto, to the Trade Negotiations Committee, Special Session of the Dispute Settlement Body (21 April 2011) TN/DS/25, A-31. See also Flexibility and Member Control (2005) (n 11). 32 Claus-Dieter Ehlermann, ‘Six Years on the Bench of the “World Trade Court”: Some Personal Experiences as Member of the Appellate Body of the World Trade Organization’ in Federico Ortino and Ernst-Ulrich Petersmann (eds), The WTO Dispute Settlement System 1995–2003 (Kluwer Law International 2004) 499, 528–29. 33 The United States’ statement at the adoption of the Appellate Body Report in Argentina – Measures Relating to Trade in Goods and Services (DS453); WTO, Minutes of Meeting Held in the Centre William Rappard on 9 May 2016 , Dispute Settlement Body (20 June 2016) WT/DSB/M/378, para.2.6; See also 2018 Trade Policy Agenda (n 2) 27. 34 Nevertheless, it should also be recalled that which issues are necessary to be addressed to resolve a dispute is not clear-cut and has to be decided by the Appellate Body. 35 This subsection is partly based on the author’s unpublished paper presented to the Midyear Meeting of the American Society of International Law in 2016. 36 This subsection does not discuss legal effects of conclusions and recommendations made by the Appellate Body on the disputing parties to a specific dispute. 37 Vienna Convention on the Law of Treaties 1155 UNTS 331 (VCLT). See WTO, United States – Standards for Reformulated and Conventional Gasoline , Report of the Appellate Body (29 April 1996) WT/DS2/AB/R, 17; WTO, Japan – Taxes on Alcoholic Beverages , Report of the Appellate Body (4 October 1996) WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, 10–12. 38 US – Stainless Steel from Mexico (n 19) para 160. 39 Japan – Taxes on Alcoholic Beverages (n 37) 14. See also WTO, United States – Definitive Safeguard Measures on Imports of Circular Welded Carbon Quality Line Pipe from Korea , Report of the Appellate Body (15 February 2002) WT/DS202/AB/R, para 174. 40 WTO, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina , Report of the Appellate Body (29 November 2004) WT/DS268/AB/R, para 161. 41 ibid para 188. 42 ibid para 160. 43 WTO, United States – Continued Existence and Application of Zeroing Methodology , Report of the Panel (1 October 2008) WT/DS350/R, para 7.180. 44 Ingo Venzke, How Interpretation Makes International Law: On Semantic Change and Normative Twists (OUP 2012) 167–72. 45 Agreement Establishing the World Trade Organization (1 January 1995) 1867 UNTS 154 (Marrakesh Agreement). 46 Japan – Taxes on Alcoholic Beverages (n 37) 13. 47 Cf Jean Combacau and Serge Sur, Droit International Public (LGDJ 2016) 171. 48 Marrakesh Agreement, art IX(2). 49 US – Stainless Steel from Mexico (n 19) para 158, fn 308. 50 To what extent an ‘authoritative interpretation’ limits the Appellate Body’s interpretative power is another question. For example, the Ministerial Conference may adopt a decision that a certain provision of the WTO Agreement shall be interpreted to mean that WTO Members have a certain obligation. Pursuant to the decision, panels and the Appellate Body have no choice but to interpret the provision as decided by the Ministerial Conference. In the meantime, the Ministerial Conference may decide that a certain provision of the WTO Agreement shall not be interpreted to mean that WTO Members have a certain obligation. Such a decision excludes one interpretation of the provision but may leave discretion as to the interpretation by panels and the Appellate Body. 51 Members may also disagree on what constitutes an interpretation and not an amendment. Ehlermann & Ehring (n 8) 805–06, 813–17. 52 For example, the EC requested an authoritative interpretation pursuant to the provision in relation to the question of sequencing between Articles 21(5) and 22(6) of the DSU. WTO, Request for an Authoritative Interpretation Pursuant to Article IX:2 of the Marrakesh Agreement Establishing the World Trade Organization: Communication from the European Communities , General Council (25 January 1999) WT/GC/W/133. However, it met with fierce opposition from the United States. WTO, Procedures for Amendment and Interpretation of the Dispute Settlement Understanding: Response to European Communities’ Request for an Authoritative Interpretation of the Dispute Settlement Understanding Pursuant to Article IX:2 of the WTO Agreement: Communication from the United States , General Council (5 February 1999) WT/GC/W/144. More recently, Russia proposed to adopt an authoritative decision with respect to the interpretation of security exceptions under Article XXI of the GATT. WTO, Proposal on MC10 Ministerial Declaration (Russian Federation) – Part III , Ministerial Conference, Tenth Session (13 November 2015) WT/MIN(15)/W/14, para 1.5. It was also proposed, in connection with the matter of reappointment of an Appellate Body member, that the ‘exclusive authority’ could be used to bind the Appellate Body’s interpretations in future cases. See WTO, Minutes of Meeting Held in the Centre William Rappard on 23 May 2016 (Statement of Chinese Taipei), Dispute Settlement Body (29 August 2016) WT/DSB/M/379, para 6.25. None of the proposals resulted in concrete actions by the Ministerial Conference or the General Council. 53 WTO, European Communities – Customs Classification of Frozen Boneless Chicken Cuts , Report of the Appellate Body (12 September 2005) WT/DS269/AB/R, WT/DS286/AB/R, para 273. 54 WTO, United States – Import Prohibition of Certain Shrimp and Shrimp Products , Report of the Appellate Body (12 October 1998) WT/DS58/AB/R, para 130, citing 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, para 53. 55 Evidently, a ministerial decision that does not constitute an ‘agreement … bearing specifically upon the interpretation of’ the WTO Agreement cannot be considered a ‘subsequent agreement.’ WTO, European Communities – Regime for the Importation, Sale and Distribution of Bananas , Second Recourse to Article 21.5 of the DSU by Ecuador; European Communities – Regime for the Importation, Sale and Distribution of Bananas , Recourse to Article 21.5 of the DSU by the United States, Reports of the Appellate Body (26 November 2008) WT/DS27/AB/RW2/ECU, WT/DS27/AB/RW/USA, paras 389–93; WTO, Peru – Additional Duty on Imports of Certain Agricultural Products , Report of the Appellate Body (20 July 2015) WT/DS457/AB/R, paras 5.100– 5.105. 56 Ministerial Conference, Fourth Session, Doha, 9–14 November 2001, Implementation-Related Issues And Concerns, Decision of 14 November 2001 (20 November 2001) WT/MIN(01)/17, para 5.2. 57 WTO, United States – Measures Affecting the Production and Sale of Clove Cigarettes , Report of the Appellate Body (4 April 2012) WT/DS406/AB/R, paras 250–55. 58 ibid para 258 (emphasis in the original). 59 ibid para 260. 60 ibid para 267. 61 WTO TBT Committee, ‘Decisions and Recommendations Adopted by the WTO Committee on Technical Barriers to Trade Since 1 January 1995’, Note by the Secretariat: Revision (8 March 2017) G/TBT/1/Rev.13, 54–56. 62 WTO, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products , Report of the Appellate Body (16 May 2012) WT/DS381/AB/R, para 366. 63 ibid para 371. 64 EC – Chicken Cuts (n 53) para 273. 65 Japan – Taxes on Alcoholic Beverages (n 37) 13. 66 WTO, Chile – Price Band System and Safeguard Measures Relating to Certain Agricultural Products , Report of the Appellate Body (23 September 2002) WT/DS207/AB/R, para 214. 67 ibid para 273. 68 WTO, Guidelines for the Scheduling of Specific Commitments Under the General Agreement on Trade in Services (GATS) (Adopted by the Council for Trade in Services on 23 March 2001, published 28 March 2001) S/L/92. 69 WTO, ‘Council for Trade in Services: Report of the Meeting Held on 23 March 2001’, Note by the Secretariat (14 May 2001) S/C/M/52, paras 4–11. 70 WTO, United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services , Report of the Appellate Body (7 April 2005) WT/DS285/AB/R, para 193. 71 ILC, Report of the International Law Commission on the Work of Its 63rd Session (26 April–3 June and 4 July–12 August 2011) A/66/10/Add.1 72 ibid Guideline 1.2. 73 The Permanent Court of International Justice (PCIJ) confirmed that ‘le droit d’interpréter authentiquement une règle juridique appartient à celui-là seul qui a le pouvoir de la modifier ou de la supprimer’ by citing the traditional principle ejus est interpretare legem cujus condere . Publications de la Cour Permanente de Justice Internationale (le 6 décembre 1923) PCIJ Rep Series B No 8, Recueil des Avis Consultatifs, Affaire de Jaworzina (Frontière Polono-Tchécoslovaque) 37. See also Combacau and Sur (n 47) 171. 74 For example, an interpretative declaration may be prohibited or limited by a relevant treaty. Alternatively, an interpretation may be found to result in an impermissible reservation by a judicial organ. 75 VCLT, art 2(1)(d). 76 ILC Report 2011 (n 71), Guideline 4.7.1(1). 77 ibid Guideline 1.2.1. 78 ibid Commentary to Guideline 1.2.1, paras 2, 3. 79 Cf ibid Guidelines 2.9.1, 2.9.2. If an interpretative declaration is approved by all the contracting States to a treaty, such a declaration may constitute a subsequent agreement under Article 31(3)(a) of the VCLT; ibid Guideline 4.7.3. 80 ibid Guideline 2.9.8. 81 ibid Guideline 2.9.9. See also Frank Horn, Reservations and Interpretative Declarations to Multilateral Treaties (Elsevier 1988) 244. 82 ibid Guideline 2.4.4 includes a phrase ‘[w]ithout prejudice to the provisions of guidelines 1.4 and 2.4.7,’ but Guidelines 1.4 and 2.4.7 are inapplicable to the WTO context for the following reasons. First, Guideline 1.4 provides for rules concerning a conditional interpretative declaration that is defined as a unilateral statement formulated by a State, whereby the State ‘subjects its consent to be bound by the treaty to a specific interpretation of the treaty or of certain provisions thereof.’ Considering the close affinity between conditional interpretative declarations and reservations, it is evident that conditional interpretative declarations are prohibited under WTO law for the same reason that reservations are prohibited. See Commentary to Guideline 1.4, paras 12,13. Second, while Guideline 2.4.7 states that ‘[w]here a treaty provides that an interpretative declaration may be formulated only at specified times, a State … may not formulate an interpretative declaration concerning that treaty subsequently,’ nothing in the WTO Agreement, including the DSU, limits the timing of formulating interpretative declarations. 83 ibid Commentary to Guideline 1.2, para 23. 84 ibid Guideline 2.4.1. 85 ibid Commentary to Guideline 2.4.1, para 2. 86 ibid Guidelines 2.4.8, 2.5.12. 87 ibid Commentary to Guideline 2.4.4, para 4. 88 Robert Jennings and Arthur Watts, ‘Interpretation of Treaties’ in Robert Jennings and Arthur Watts (eds), Oppenheim’s International Law , vol 1 (9th ed, OUP, 2008) 1268; DW Greig, ‘Reservations: Equity as a Balancing Factor?’ (1995) 16 Australian Yearbook International Law 21, 37–38. See also Commentary to Draft Article 69, para 13, International Law Commission Yearbook 1964 Volume II, A/CN.4/SER.A/1964/ADD.1, 204. 89 Cf DM McRae, ‘The Legal Effect of Interpretative Declarations’ (1979) 49 BYIL155, 169–70. 90 International Law Commission Yearbook, 1966, Vol II, Commentary to arts 27, 28, para 10, 218. 91 Supplementary means of interpretation listed in art 32 of the VCLT are not exhaustive. Mustafa Kamil Yasseen, ‘L’interprétation des traités d’après la Convention de Vienne sur le droit des traités’ (1976–III) Recueil des cours 1, 79. 92 ILC Report 2011 (n 71), Guideline 4.7.1(1); See also Commentary to Draft Article 69, para 13, International Law Commission Yearbook 1964 Volume II, A/CN.4/SER.A/1964/ADD.1, 204; ILC, Report of the International Law Commission on the Work of 68th Session (2 May–10 June and 4 July–12 August 2016) A/71/10, Commentary to Draft Conclusion 10, para 10, 129. 93 ILC Report 2011 (n 71), Commentary to Guideline 4.7.1, paras 26, 31. 94 ibid Guideline 4.7.1(2). 95 Cf WTO, United States – Continued Existence and Application of Zeroing Methodology , Report of the Appellate Body (4 February 2009) WT/DS350/AB/R, para 268 (‘treaty interpretation is an integrated operation’ and interpretative rules or principles must be understood and applied ‘in a holistic fashion.’). 96 By way of exception, a few regional trade agreements concluded by Canada explicitly prohibit reservations and interpretative declarations. See Canada – Korea FTA, art 23.3; Canada – Costa Rica FTA, art XV.3. 97 ILC Report 2011 (n 71), Commentary to Guideline 3.5, para 13. 98 Alternatively, a sentence could be inserted in Article XIV:1 of the Marrakesh Agreement that would explicitly prohibit reservations while simultaneously acknowledging the right of Members to formulate interpretative declarations. 99 Cf ILC Report 2011 (n 71), Guideline 1.5. 100 Cf Treaty Section of the Office of Legal Affairs, ‘Summary of Practice of The Secretary-General as Depositary of Multilateral Treaties’ (1999) UN Doc ST/LEG/7/Rev.1, para 218. 101 ILC Report 2011 (n 71), Commentary to Guideline 1.2, para 28. 102 It is simply an indication of a Member’s view on an interpretation. Cf McRae (n 89) 160–61. 103 Cf Belilos v Switzerland , App No 10328/83 (Commission Decision, 7 May 1986) para 102. 104 Cf McRae (n 89) 160. 105 WTO, European Communities – Customs Classification of Certain Computer Equipment , Report of the Appellate Body (5 June 1998) WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R, para 84. 106 WTO, Peru – Additional Duty on Imports of Certain Agricultural Products , Report of the Appellate Body (20 July 2015) WT/DS457/AB/R, para 5.95. 107 Cf ibid para 94. 108 The Appellate Body has confirmed that Article 32 of the VCLT ‘does not define exhaustively the supplementary means of interpretation to which an interpreter may have recourse and that ‘an interpreter has a certain flexibility in considering’ what constitutes relevant supplementary means of interpretation in a given case. EU – Chicken Cuts (n 53) para 283. 109 ILC Report 2011 (n 71), Guideline 4.7.1(2). Cf Richard K Gardiner, Treaty Interpretation (OUP 2015) 108. On the other hand, disapproval by several Members of an interpretative declaration may evidence that an interpretation pronounced by the declaration does not reflect the common intention of the Members as to the interpretation of the WTO Agreement. 110 WTO, China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products , Appellate Body Report (21 December 2009) WT/DS363/AB/R, paras 404–05. 111 The judicial independence should not be considered in binary terms in the sense that anything that interferes with the power of a tribunal to decide would undermine judicial independence. Robert McDougall, ‘Crisis in the WTO: Restoring the WTO Dispute Settlement Function’ (October 2018) CIGI Papers No 194, 11 < www.cigionline.org/sites/default/files/documents/Paper%20no.194.pdf > accessed 9 August 2019. 112 WTO, ‘Informal Process on Matters Related to the Functioning of the Appellate Body: Communication from Japan, Australia and Chile: Revision’, General Council (26 April 2019) WT/GC/W/768/Rev.1. 113 WTO, ‘Communication from the European Union, China, Canada, India, Norway, New Zealand, Switzerland, Australia, Republic of Korea, Iceland, Singapore and Mexico to the General Council’, General Council (26 November 2018) WT/GC/W/752. 114 ibid. 115 WTO, ‘Establishment of the Appellate Body: Recommendations by the Preparatory Committee to the WTO’, approved on 6 December, Sub-Committee on Institutional Procedural and Legal Matters (8 December 1994) PC/IPL/13. Publisher Copyright: © 2019 2019 by Koninklijke Brill NV, Leiden, The Netherlands.
PY - 2020
Y1 - 2020
N2 - The United States criticizes the Appellate Body for 'making law' by interpreting and applying the World Trade Organization (WTO) agreements in disregard of the intention of WTO members. The criticism of the United States is not without legitimate basis in that Members have few tools with which they may weigh in on the interpretation of the WTO agreements, even if the Appellate Body makes an erroneous interpretation. As much as the Appellate Body's contribution to the security and predictability of the multilateral trading system warrants praise, the dysfunction of legislative and political mechanisms to counterbalance the growing de facto 'authority' of the Appellate Body should be a cause for concern. Against this background, this article proposes a new mechanism that would allow Members to disagree with interpretations by the Appellate Body and pronounce their own interpretations of the WTO agreements. The mechanism would be built upon 'interpretative declarations.
AB - The United States criticizes the Appellate Body for 'making law' by interpreting and applying the World Trade Organization (WTO) agreements in disregard of the intention of WTO members. The criticism of the United States is not without legitimate basis in that Members have few tools with which they may weigh in on the interpretation of the WTO agreements, even if the Appellate Body makes an erroneous interpretation. As much as the Appellate Body's contribution to the security and predictability of the multilateral trading system warrants praise, the dysfunction of legislative and political mechanisms to counterbalance the growing de facto 'authority' of the Appellate Body should be a cause for concern. Against this background, this article proposes a new mechanism that would allow Members to disagree with interpretations by the Appellate Body and pronounce their own interpretations of the WTO agreements. The mechanism would be built upon 'interpretative declarations.
KW - Appellate Body
KW - Guide to Practice on Reservations to Treaties
KW - Vienna Convention on the Law of Treaties
KW - authoritative interpretation
KW - interpretative declaration
KW - overreach
KW - precedent
KW - subsequent agreement and subsequent practice
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UR - http://www.scopus.com/inward/citedby.url?scp=85077538254&partnerID=8YFLogxK
U2 - 10.1163/22119000-12340158
DO - 10.1163/22119000-12340158
M3 - Article
AN - SCOPUS:85077538254
SN - 1660-7112
VL - 20
SP - 792
EP - 819
JO - Journal of World Investment and Trade
JF - Journal of World Investment and Trade
IS - 6
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