should dispose of claims underthe Import Licensing Agreement prior to examining GATT issuesrelated to licensing). Thus, it seems that the Appellate Body wouldtake the position that the more appropriate approach in dealing withcases raising GATT and TBT issues would be to consider the TBTissues first, so it is likely that the GATT/TBT conflict will not be soeasily avoided in the future as it was in Gasoline and Asbestos.It could be argued that a different notion of like product should beapplied under Article 2.1 than under Article III, but I see no justifi-
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except where GATT Article XX excuses a violation of GATT Article III. In that case, the challenged measure would not violateGATT, but would violate the TBT Agreement.30 This would occurdespite the fact that the same national treatment obligation was present under each agreement.While not a true conflict in the sense explored above – if it isviewed as a conflict for WTO purposes, the WTO Agreement’sconflict rule would give priority to the TBT Agreement obligationover a conflicting GATT provision. That would mean that the sameprovision in the two agreements would effectively have two consequences – what one permits as a consequence of the Article XXexception, the other forbids. In my view, such a result should beavoided by effective interpretation. Would that be consistent withthe parties’ intent? That is not clear,31 but one can speculate that theintent of the parties in including TBT Article 2.1, which dates fromthe Tokyo Round, was not to expand in some undefined fashion thereach of GATT’s nondiscrimination rules, but rather to make provision for the admission of parties to the TBT Agreement who werenot GATT contracting parties and who therefore would not be subject to the general GATT nondiscrimination rules that would ordinarily cover technical regulations. That is confirmed by the structure of the Tokyo Round TBT Agreement, as Articles 15.2 and 15.3thereof specifically provide for non-GATT parties. In fact, therewas a non-GATT party to the TBT Agreement from early on: Tuni-
30
31
cation for such an approach and no basis for choosing any particulardifferent definition of like product for purposes of Article 2.1.Indeed, if one should first analyze the measure under the TBT Agreement, the measure would be found to violate the TBT Agreement andthe issue of its GATT compatibility would presumably not even beconsidered under the usual notions of judicial economy.One could argue that discrimination in technical requirements wasviewed as always inexcusable by negotiators and thus no exceptionswere needed or appropriate. Even if that were an accurate descriptionof their views, one could ague that they had not considered fully theconsequences of the broad definition of like products thatGATT/WTO jurisprudence has often produced. As such, one couldargue that their intent not to have any exceptions was based on a falsepremise and that effective interpretation is needed. As noted above(see note 30), I do not think that adjusting the definition of like products is the answer, although it is a possible approach to avoiding afinding of a TBT violation.
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sia was a party to the TBT Agreement as of 1981, although it wasnot formally a GATT contracting party at the time.32 In any event,there is no evidence that the TBT national treatment clause was intended to negate Article XX (or Article XXI, for that matter). Indeed, the preamble to the TBT Agreement itself explicitly states thecontrary and largely incorporates the ideas of Article XX – that nocountry should be prevented from taking measures necessary, interalia, for the protection of life, health or the environment, providedthat they are not applied in a manner that would constitute a meansof arbitrary or unjustifiable discrimination or a disguised restrictionon international trade. Thus, I would argue that the appropriate result is that a TBT measure that violates Article III:4, but which ispermitted by Article XX, should not be found to violate Article 2.1of the TBT Agreement. In my view, the context of Article 2.1 (i.e.,the preamble and Article 15) demonstrates that it was not intendedto expand the non-discrimination requirement beyond what wasfound in GATT.The second potential conflict is between GATT Articles IIIand XX, and Article 2.2 of the TBT Agreement. Article 2.2 prohibits technical regulations that are unnecessary obstacles to international trade and specifies that such regulations should not be moretrade restrictive than necessary to fulfill a legitimate objective –several of which are listed. If a measure violates Article III and isnot excused by Article XX and at the same time violates Article 2.232
Report (1981) of the Committee on Technical Barriers to Trade,BISD 28S/34. The 1980 committee report noted that Tunisia had deposited its acceptance in 1980, but that certain terms had not yet beenworked out at that time (Report of the Committee on Technical Barriers to Trade, BISD 27S/37). Tunisia had provisionally acceded toGATT in 1959, a status that continued until 1989. The declarationconferring that status provided for tariff negotiations between Tunisiaand GATT contracting parties, but provided that Tunisia would haveno direct rights with respect to the concessions contained in GATTtariff schedules (GATT, BISD 8S/15-16). Presumably, since it wasnot formally a contracting party, Tunisia was not subject to disputesettlement and recommendations under Article XXIII. While Tunisiaseems to be the only party to the Tokyo Round TBT Agreement thatwas not a GATT contracting party, other Tokyo Round agreements(e.g., Bovine Meat, Dairy and Valuation) had other non-GATT contracting parties as members, e.g., Botswana, Bulgaria, Guatemala,Lesotho and Paraguay (GATT, GATT Activities in 1986, 95).
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there is obviously no conflict. Similarly, an Article III violation thatis excused by Article XX is consistent with a finding of no Article2.2 violation.The third possibility is an Article III violation excused by Article XX, combined with a TBT Article 2.2 violation. Such a situation could arise if a measure were viewed as nondiscriminatory andnot a disguised restriction on international trade in terms of the chapeau of Article XX, but as being more trade-restrictive than necessary to satisfy a legitimate objective under Article TBT 2.2. Obviously, not many measures would fall into this category since in thetypical case a measure that is found not to be a disguised restrictionon international trade would probably also be found not to be moretrade restrictive than necessary to achieve one of the TBT Agreement’s specified legitimate objectives, but that result is not logically compelled. If the true conflict definition were applied, no conflict would be found in this situation and a violation of the TBTAgreement would be the result. If a broader notion of conflict wereapplied and a conflict found, under the WTO Agreement’s conflictrule, the TBT Agreement would prevail and a TBT violation wouldbe found. While the situation giving rise to this sort of situationwould not often occur, the latter result would be appropriate in myview. This is because, unlike the GATT III-TBT 2.1 case, wheretwo similar if not identical nondiscrimination obligations are at issue, there are two quite different obligations involved in the GATTIII-TBT 2.2 case – GATT’s nondiscrimination or national treatmentrule and the TBT’s ban on unnecessarily trade restrictive measures.In my mind, the second obligation could be violated without callinginto question the first. The fact that a measure is nondiscriminatoryor not a disguised restriction on international trade would not preclude a finding that it is an unnecessary obstacle to trade. The lackof a GATT violation should not excuse a violation of an unrelatedTBT obligation.The last possibility is a measure that violates Article III (and isnot excused by Article XX) but is permitted under TBT Article 2.2.Such a situation could arise if a measure were found to be discriminatory for purposes of Article III and the chapeau of Article XX,although not creating unnecessary obstacles to international trade orbeing unnecessarily trade restrictive. While it may be likely thatsuch a discriminatory measure would be viewed as an unnecessaryobstacle to trade or unnecessarily restrictive, it would not necessarily have to be so. If the true conflict rule were applied, and a viola-
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tion of GATT but not of the TBT Agreement were found, therewould be no conflict, so the GATT violation would stand notwithstanding the absence of a TBT violation. If a broader view of conflict were taken, then it might be argued that a conflict exists andthat under the WTO Agreement’s conflict rule, the TBT Agreementprevails over GATT, which would mean that no violation would befound. For me, it would not be appropriate to find a conflict in thissituation. As in the immediately preceding case, the concern ofGATT – discrimination – is distinct from the concern of the TBTAgreement, which is focused on the trade effect of the measure andwhether it is necessary. In any event, of course, such a measurewould presumably violate TBT Article 2.1 (since it violates GATTArticle III), but the point to be made is that compliance with TBTArticle 2.2 should not excuse unrelated violations, such as the prohibition on discriminatory measures.The analysis is made more complicated if GATT Article XI isconsidered. It is arguable, of course, that in the situation we areconsidering – the application of a technical regulation to both domestic and imported products – Article XI should not be applied,but rather the analysis should be conducted under Article III andthat is the approach that I would adopt.33 If that is not the approachadopted, then it would be necessary to consider situations whereapplication of GATT Articles XI and XX, on the one hand, andTBT Article 2.2, on the other, led to different results. In examiningthe structure of GATT and the TBT Agreement, I think that theTBT Agreement could be viewed as dealing with a special casedealt with under Article XI – prohibitions on imports as a result oftechnical regulations. As such, the TBT Agreement is lex specialisin this situation, such that a measure permitted by the TBT Agreement should be deemed permissible, notwithstanding any analysisunder Articles XI and XX. The main impact would be that a measure not justifiable under GATT Article XX, but meeting the termsof TBT Article 2.2 would be permissible. This is different than theresult of the similar situation in the Articles III and XX versus TBTArticle 2.2 case, but it is explainable because in the latter case,GATT is concerned with discrimination – something not a concernof TBT Article 2.2, but in the former case it is only concerned witha restriction on imports – something that, for technical regulations,
33
See note 2 supra.
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is the primary concern of Article 2.2. Thus, the different result isjustified.These issues are obviously difficult, particularly as to ArticlesIII and XX and TBT Article 2.1, which explains why panels haveavoided them. It is arguable that neither the narrow or broad definition of conflict necessarily leads to the right result. I find it preferable to start with the broad definition, however, and use interpretative methods to find no real conflict in appropriate cases.344. SummaryOne final thought on conflicts: For whatever reason, the issue ofconflicts between WTO agreements has not much arisen in WTOdisputes. Indeed, in two of the cases I have discussed – theGATT/ATC conflict and the TRIMs/Subsidies conflict, the issuewill disappear as the relevant transitional periods expire. Nonetheless – even if the issue arises infrequently – which probably reflectsthe fact that the WTO agreements are in general internally consistent – it will undoubtedly arise from time to time. One area wheresuch conflicts seem likely to be inevitable involves the interactionof the three general agreements – GATT, GATS and TRIPS – because the coverage of each of these agreements is expressed in verybroad terms. The coverage of GATT has long been interpreted expansively, particular with respect to its MFN and national treatmentobligations. The scope of GATS has been defined broadly as applying to measures affecting trade in services, while the MFN andnational treatment provisions of TRIPS apply generally to the protection of intellectual property.35 It seems clear that in the future theuncertain rules on treating conflicts in the WTO agreements will betested regularly, even if not frequently. For the moment, the treatment of conflicts remains an area where the rules are quite uncertain. However, as to the problem of overlapping obligations – it hasarisen more often and seems likely to continue to arise on a moreregular basis.
3435
For a somewhat different view of how to resolve GATT-TBT conflicts, see Marceau / Trachtman (2002).On this topic, see Davey / Zdouc (2003).
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III. Overlapping Obligations in the WTO AgreementIn considering the question of overlapping obligations, there is firsta problem of terminology. Such obligations are generally thought ofas not conflicting, but rather consisting of two obligations, both ofwhich could be complied with, but where it can be argued that oneof the obligations is more basic and somehow replaces the otherobligations. This sort of situation arose early in WTO dispute settlement, and, generally speaking, the Appellate Body has concludedthat overlapping obligations should be viewed as cumulative. Several examples will serve to illustrate the kind of issues that arise.The first case of this sort was the Canada Periodicals case.36There, Canada argued that since it had made no specific commitment in GATS on advertising services, it could not be held responsible under GATT for a measure regulating advertising that indirectly affected trade in goods. The Appellate Body held, however,that the creation of GATS did not carve out an exception to the preexisting coverage of GATT. Moreover, it questioned where themeasure at issue was really directly aimed at advertising servicesthat incidentally affected periodicals since the measure was a taxthat was levied on periodicals.Soon thereafter, the relationship of GATT and GATS arose inthe context of the Bananas case.37 The EC argued in essence that ameasure taken to regulate trade in goods could not be inconsistentwith that member’s GATS obligations. The argument was rejectedgiven the broad scope of the GATS obligations, which apply generally to measures ‘affecting’ trade in services. This broad definitiondoes not suggest that only regulatory measures aimed at a particularservice sector are covered. In the view of the Appellate Body, therecould be three different types of measures – those affecting onlytrade in goods, those affecting only trade in services and those affecting both, such as measures involving a good that relates to aparticular service or a service supplied in conjunction with a particular good. In its view, in the third case, the measures at issue36
37
Appellate Body Report on Canada – Certain Measures ConcerningPeriodicals, WT/DS31/AB/R, at pp. 17-20, adopted by the WTODispute Settlement Body on 30 July 1997.Appellate Body Report on European Communities – Regime for theImportation, Distribution and Sale of Bananas, WT/DS27/AB/R,paras. 217-222, adopted by the WTO Dispute Settlement Body on 25September 1997.
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could be examined under both GATT and GATS. The AppellateBody noted, however, that the specific focus of the examination ofthe measure under each agreement would likely be different. UnderGATT, the focus would be on how the measure affects the goodsinvolved, while under GATS the focus would be on how the samemeasure affects the supply of the service or the service supplier involved.This notion that overlapping obligations should be viewed ascumulative has found expression in other cases as well. Perhaps itsmost controversial application has been in the line of decisionswhere the Appellate Body has ruled that a requirement of GATTArticle XIX on safeguards – that they may be justified only if increased imports have resulted from unforeseen developments –must still be complied with even though it is the only requirementof Article XIX that was not carried over into the 1994 Agreementon Safeguards.38 The result is controversial because it seems thatmany negotiators thought that the decision not to mention the requirement in the new agreement meant that it was no longer applicable. Technically, however, it is difficult to argue with the Appellate Body’s analysis, especially given the reasoning in the Periodicals and Bananas cases.For me, these results that impose overlapping or cumulativeobligations seem appropriate. They essentially go back to the ideathat a treaty interpreter should avoid reading provisions out of atreaty. Where there is no question of true conflict, nor any questionof an obligation such as an explicit prohibition in tension with aright such as an explicit permission, it seems appropriate to applyeach obligation. Of course, as the Appellate Body found in Bananas,39 it may be appropriate and sufficient to find only a violationof only one agreement as a matter of judicial economy, but that38
39
Appellate Body Report on Argentina – Safeguard Measures on Imports of Footwear, WT/DS121/AB/R, paras. 76-97, adopted by theWTO Dispute Settlement Body on 12 January 2000; Appellate BodyReport on Korea – Definitive Safeguard Measure on Imports ofCertain Dairy Products, WT/DS98/AB/R, paras. 68-90, adopted bythe WTO Dispute Settlement Body on 12 January 2000.Appellate Body Report on European Communities – Regime for theImportation, Distribution and Sale of Bananas, WT/DS27/AB/R,para. 204, adopted by the WTO Dispute Settlement Body on 25 September 1997.
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does not and should not imply that the other obligation was inapplicable.IV. The Consequences of the Cancún Failureon the Coherence of International Economic LawThis volume of papers is particularly concerned with the effect ofthe failure of the WTO’s Cancún ministerial conference on the future of the WTO.40 Thus, I will conclude with a few thoughts on myview of the consequences of that failure on the coherence of international economic law. As noted earlier, two possible consequencesof the failure could be a rise in the use of plurilateral agreements oncontroversial topics such as competition and investment and anincrease in the number of regional trade agreements. Both resultswould obviously undermine the coherence of international economic law as represented by the WTO system since WTO memberswould be subject to different obligations within the WTO systemand there would be even more variation likely in the regional tradeagreements that were exempt from many WTO rules.To the extent that new plurilateral agreements are in truly newareas that are distinct from current WTO rules, I think that it couldbe argued that they would not have a major impact on the WTO,but it is not at all clear that the two most likely plurilateral agreements – competition and investment – would be so distinct. In respect of competition, one could imagine that many of the benefitsof an agreement would have to be extended to non-participants,even though they undertook no obligations, because of GATT’smost-favored-nation requirement, which would apply to laws andregulations affecting the sale of goods and services – as at leastsome rules on competition would certainly be. Similarly, given theextent to which the TRIMs Agreement and, more significantly, theServices Agreement deal with investment, any agreement on investment may present overlap problems and potential conflictproblems. It is too early to speculate on specific problems, however,as the structure and content of any agreements is yet unknown.At the moment, the number and variety of regional trade agreements seems to be increasing rapidly and the Cancún failure willlikely accelerate that trend. The direct effect of such agreements onthe coherence of WTO rules may not be so great, but the huge vari40
See note 6 supra.
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ety in rules that are contained in regional agreements will certainlyundermine the coherence of international economic law. Regionaltrade agreements by their very nature involve rules of origin that arelikely to vary on an agreement-by-agreement basis since differentproducts will likely be viewed differently in terms of their sensitivity under the different agreements. Application of those rules oforigin greatly complicates the business of international trade – theyare often very complex and difficult to understand since they aredesigned to protect certain producers; and they are difficult to comply with – sometimes substantively and always procedurally, suchthat the expected benefits of regional trade agreements are often notfully achieved. Moreover, although entities like the United Statesand the EC tend to use past regional trade agreements as models,they all tend to have some distinct rules, incorporated because of aspecial issue that the parties want to deal with or because they areviewed as improvements over the old model agreement. The resultis the opposite of the goal of trade facilitation that is supposedlydesired by the major players in the WTO.I am hopeful that the rush to regional trade agreements will notundermine the multilateral system and I think it will not principallyfor three reasons. First, a proliferation of regional trade agreementswill make doing business internationally more difficult because ofthe disparate rules that will be found in those regional trade agreements. These added complexities will make the uniformity of multilateral approaches that much more attractive.Second, while bilateral or regional trade agreements can anddo make progress on market access issues, they usually fail to dealwith truly difficult trade issues, such as agriculture and dumping –to name only two. Those difficult issues will remain unresolved andsuitable for resolution only in more broad-based negotiations in theWTO. This is particularly true for the major players – such as theQuad (the US, EC, Canada and Japan) and the leading developingcountries – for whom the WTO is the main arena in which theymanage their trade relations with each other.Third, those same major players are the main users of theWTO’s dispute settlement system, even where, as is the case between Canada and the United States, they have a free trade agreement between them with its own WTO-like dispute settlement system. For them, the existence of an effective dispute settlement isessential to ensure that agreements are respected. Yet, dispute settlement in free trade areas is typically not so effective, as is demon-
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strated by the general disuse of NAFTA’s general dispute settlement system.41Thus, the failure of Cancún will likely lead to more regionaltrade agreements and thereby increase incoherence, but the longterm strength and advantages of the multilateral trading system –relative simplicity over complexity, the ability to deal with the hardissues and more effective dispute settlement – will ultimately reverse this trend away from coherence.V. ConclusionIn conclusion, in discussing the consistency of the WTO system, Iwould say that the problem of conflicts within the system presentsvery interesting and difficult issues, but does not seem to havearisen often enough to present basic difficulties for the overall effectiveness of the WTO dispute settlement system. The problem ofoverlaps is more serious, but given the Appellate Body’s clear direction that overlaps are not conflicts and that overlapping obligations must all be complied with, the system seems to dealing withthe overlap problem. Finally, the Cancún failure will ultimately leadto more plurilateral and regional trade agreements, which inevitablywill undermine the coherence of international economic law, but Ithink that in the end the multilateral system will remain the mostattractive alternative which suggests that, notwithstanding theCancún setback, more coherence can be expected over time.
41
The US has initiated four cases against Canada and five against Mexico as of March 16, 2003 at the WTO; Canada has initiated 11against the US (many involving their lumber dispute), while Mexicohas initiated five against the US. See data on WTO website –www.wto.org – under ‘Disputes’. Most of the cases have resulted inpanel proceedings. In contrast, NAFTA’s general dispute settlementmechanism – the Chapter 20 procedure – has not been much used.There has been one case by the US against Canada, the result ofwhich was inconclusive from the US point of view. There have alsobeen two cases by Mexico against the US. Thus, there have been 25proceedings in the WTO, but only three in NAFTA. See data onChapter 20 disputes at NAFTA Secretariat website – www.nafta-secalena.org.
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ReferencesJohn Croome (1999), Reshaping the World Trading System: AHistory of the Uruguay Round, Den Haag (Kluwer) 1999.William J. Davey / Werner Zdouc (2003), The Triangle of TRIPS,GATT and GATS, in: Thomas Cottier / Petros C. Mavroidis(eds.), Intellectual Property: Trade, Competition and Sustainable Development, Ann Arbor, MI (The University of Michigan Press) 2003, 53-84.Wilfred Jenks (1953), Conflict of Law-Making Treaties, in: BritishYearbook of International Law 30 (1953), 401-453.Gabrielle Marceau (2001), Conflicts of Norms and Conflicts ofJurisdiction: The Relationship between the WTO Agreementand MEAs and other Treaties, in: Journal of World Trade, 35(2001) 6, 1081-1131.Gabrielle Marceau / Joel P. Trachtman (2002), The Technical Barriers to Trade Agreement, the Sanitary and PhytosanitaryMeasures Agreement, and the General Agreement on Tariffsand Trade: A Map of the World Trade Organization Law ofDomestic Regulation of Goods, in: Journal of World Trade, 36(2002) 5, 811-881.Joost Pauwelyn (2003), Conflict of Norms in Public InternationalLaw, Cambridge (Cambridge University Press) 2003.Pierre Pescatore / William J. Davey / Andreas F. Lowenfeld (1991),Handbook of GATT Dispute Settlement, Ardsley-on-Hudson /New York (Transnational Juris Publications) 1991.World Trade Organization (1995), The Results of the UruguayRound of Multilateral Trade Negotiations: The Legal Texts,Geneva 1995.WTO CasesArgentina – Safeguard Measures on Imports of Footwear,WT/DS121, adopted by the WTO Dispute Settlement Body on12 January 2000Canada – Certain Measures Concerning Periodicals, WT/DS31,adopted by the WTO Dispute Settlement Body on 30 July1997.
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European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135, adopted by the WTODispute Settlement Body on 5 April 2001.European Communities – Regime for the Importation, Distributionand Sale of Bananas, WT/DS27, adopted by the WTO DisputeSettlement Body on 25 September 1997.Indonesia – Certain Measures Affecting the Automobile Industry,WT/DS54, adopted by the WTO Dispute Settlement Body on23 July 1998.Korea – Definitive Safeguard Measure on Imports of Certain DairyProducts, WT/DS98, adopted by the WTO Dispute SettlementBody on 12 January 2000.United States – Standards for Reformulated and ConventionalGasoline, WT/DS2, adopted by the WTO Dispute SettlementBody on 20 May 1996.
Lorand Bartels*
Treaty Conflicts in WTO Law –A Comment on William J. Davey’s Paper‘The Quest for Consistency’I.II.III.IV.V.
IntroductionTwo Definitions of Treaty ConflictsWTO Panels on Treaty ConflictsProblems with a Narrow Definition of ConflictsAppellate Body JurisprudenceA. A Right Subject to Cumulative Conditions(Argentina – Footwear (EC))B. A Right Subject to a Condition and a ‘Noncondition’ (Guatemala – Cement I)C. A Right Subject to Cumulative Conditions(again) (US – FSC)D. Conflict between an Obligation and a ‘Nonobligation’ (US – Hot Rolled Steel)E. Conflict between an Obligation and a Right(Brazil – Aircraft; US – FSC)1. Brazil – Aircraft2. US – FSCVI. ConclusionsReferences
*
130130131132135135136139140141141143144145
University of Cambridge / UK, currently Humboldt Fellow, MaxPlanck Institute for International Law, Heidelberg. I am grateful toErich Vranes and Joost Pauwelyn for discussion and comments onthis article.
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I. IntroductionThis contribution concentrates on how to determine when there is aconflict between WTO norms, such that it is necessary to apply therules of international law on treaty conflict.1II. Two Definitions of Treaty ConflictsIn his contribution, Professor Davey draws attention to two distinctmethods of defining a ‘conflict’ between norms in different treaties.These are as follows:1. Conflict can only exist between obligations. In this case it isimpossible for a party to act in compliance with all applicableobligations.2. Conflict may also exist between an obligation and an expressright. In this case, it is possible for a party to act in compliancewith its obligations, but only at the expense of not exercising aright expressly granted under some applicable legal provision.This is, of course, an oversimplification of the issue, given thatnot all legal relations can be encapsulated in a rights-obligationsdichotomy. In addition to these, legal norms include at least powersand norms regulating other norms.2 Furthermore, as will be illustrated later in this contribution, it is strongly arguable that a condition on the exercise of a right should not be treated as an obligation,given that it does not actually require any performance but merelylimits either the exercise of the right (by establishing express preconditions) or its terms (be incorporating these preconditions in the
1
2
This contribution does not discuss the rules applicable to resolveconflicts. These rules are constituted predominantly by the principlesof lex specialis (the more specific norm prevails) and lex posterior(the norm later in time prevails), subject to the legitimate interests ofthird parties and subject to the express terms of the relevant treatiesthemselves. The Vienna Convention on the Law of Treaties codifiescertain of these principles but is by no means conclusive on the issue,nor on the consequences of any breach of obligations as a result oftreaty conflict. In particular, the Vienna Convention fails to accountfor the principle of lex specialis, which has a definite, though perhapsambiguous, history in the jurisprudence of international tribunals andacademic writings.For a list, see Pauwelyn (2003), 158 et seq.
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definition of the right).3 Nevertheless, though simplified, thisdichotomy does represent the terms of the debate in the academicliterature, and in particular, in relevant WTO cases.The following will give an account of the current state of play,before making some suggestions