ation) toexamine claims of violations of WTO obligations’. This means, inthe view of Kwak, Marceau and Tomazos, that WTO Membershave an ‘absolute right to trigger the WTO dispute settlementmechanism ... [A] WTO Member cannot be asked (and arguablycannot even agree) to take its WTO dispute to another forum, evenif that other forum appears to be more relevant or betterequipped’.22Incidentally, there is little guidance to be derived from GATT1947 and WTO dispute settlement decisions, which so far do notappear consistent in the treatment of conflicting non-WTO rules ofinternational law. While several GATT panel reports took quiterestrictive stances,23 there are some indications – as rightly pointed20
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Marceau (2001), 1104-1105 (‘If the WTO obligations are always thesame for all Members – and it can be argued they are – such bilateralmodification of WTO rights and obligations may simply not be possible without affecting the rights of other third WTO Members’).Kwak / Marceau (2002), 12.Cf Marceau / Tomazos in this book; in the same sense Kwak / Marceau (2002), 12 (italics added).Cf e.g. the 1984 GATT panel report, US – Imports of Sugar fromNicaragua, adopted on 13 March 1984, L/5607, BISD 31S/67, in
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out by Pauwelyn – in recent WTO decisions that non-WTO lawmight be recognized as prevailing over conflicting WTO rules evenwithin WTO proceedings: the panels on India – Automobiles andArgentina – Poultry indicated obiter that they might take into account non-WTO agreements that take away a panel’s jurisdiction.24However, these indications are not accompanied by explicit legalreasoning. The same is true of the Argentina – Footwear case,which has even given rise to diametrically opposite readings in theliterature.25 Finally, the panel on Korea – Government Procurementstated that customary international law applies between WTO
24
25
which the panel confined itself to an examination of the claims‘solely in the light of the relevant GATT provisions’ despite the factthat the US invoked non-GATT international law in its defence (para4.1); see also the 1988 GATT panel report, Canada – Herring andSalmon, adopted on 22 March 1988, L/6268, BISD 35S/98, wherethe panel tersely noted in the last paragraph ‘Canada referred in itssubmission to international agreements on fisheries and the Conventionon the Law of the Sea. The panel considered that its mandate was limited to the examination of Canada's measures in the light of the relevant provisions of the General Agreement. This report therefore hasno bearing on questions of fisheries jurisdiction’; cf also the 1984FIRA case, in which the Council decided ‘that it be presumed that thePanel would be limited in its activities and findings to within the fourcorners of GATT’ (cf the panel report, Canada – Administration of theForeign Investment Review Act (FIRA), adopted on 7 February 1984,L/5504, BISD 30S/140, at para 1.4); these cases are discussed by Pauwelyn (2003) 456-459; Palmeter/Mavroïdis (1998) 411 refer to a‘tendency of GATT panels to disregard public international law’ intheir discussion of the 1994 US – Tuna case. The fact thatGATT/WTO jurisprudence is not yet settled is also pointed out byBartels (2001), 509; on these issues cf also Reinisch (2003), 449 etseqq.; Hilpold (2002), 46 et seqq.Cf the WTO panel report, India – Measures Affecting the AutomotiveSector, WT/DS146/R, adopted 5 April 2002, at para 7.116; and theWTO panel report, Argentina – Definitive Anti-Dumping Duties onPoultry from Brazil, WT/DS241/R, adopted on 19 May 2003, para7.38.Appellate Body report in Argentina – Footwear, WT/DS56/R,adopted on 22 April 1998, paras 65-72; while Pauwelyn cites this report in support of his argument, Trachtman reads this case as implying the opposite, namely that international law can not supersedeWTO law in WTO dispute settlement; cf Trachtman (1999), 343.
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Members ‘to the extent there is no conflict’; it did not indicate,however, that conflicting non-WTO international could prevail overWTO law in WTO proceedings.26B. Legal Starting-Points and Central QuestionRegarding the issues raised by Pauwelyn, Marceau and Tomazos,there are two evident starting-points which, however, often do notreceive sufficient attention in the literature. On the one side, despiteits economic importance, the WTO treaty is a normal internationalagreement. Therefore, the questions delineated in the precedingsection have to be assessed according to the rules of general international law. This means in particular that inter se modifications ofthe WTO treaty are permissible under the established principles ofgeneral international law, in particular the pacta tertiis principle aslaid down in Article 41 VCLT, unless it can it can be shown thatWTO Members have explicitly or implicitly contracted out fromthese rules. The latter proviso constitutes the core of the problem, aswill be shown in the following.On the other side, it is firmly established in the jurisprudenceof international tribunals and in WTO dispute settlement practicethat adjudicating bodies have the implied jurisdiction to decide allissues inextricably linked to the exercise of the judicial function,including the competence to decide on their own competence(Kompetenzkompetenz).27 This arguably includes the issue ofwhether a panel’s jurisdiction has been taken away through modifications of the treaty by which the panel is established.28Therefore, the central question is whether these two startingpoints have been modified expressly or implicitly by the WTO26
27
28
Cf the panel report in Korea – Measures Affecting Government Procurement, WT/DS163, adopted on 19 June 2000, at para 7.96. Thesedecisions are more extensively discussed than is possible here inPauwelyn’s paper supra and in Pauwelyn (2003), 478 et seqq.; seealso Bartels (2001) for a discussion of earlier rulings.Cf the Appellate Body report, European Communities – Regime forthe Importation, Sale and Distribution of Bananas, WT/DS27/AB/R,para 142 (confirming the reasoning of the panel report at paras 7.26ff); Appellate Body report, Korea – Dairy, WT/DS98//AB/R at para123; see also Pauwelyn (2003), 447-449 with further references regarding WTO and ICJ practice and Vranes (2003), 48 et seqq. regarding pertinent WTO decisions.In the same sense Pauwelyn (2003) ibidem.
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Members. As there are no other relevant indications, such contracting-out from rules of general international law must be discernible from the WTO agreements themselves. Since such a contracting-out constitutes the exception to the rule, advocates of theexistence of this exception bear the argumentative burden of havingto advance sufficient reasons in support of their view. Otherwise,there is a strong presumption for the standard rule, which implies (i)that WTO law can be modified under the conditions ensuing fromthe principles of general international law, and (ii) that WTO adjudicating bodies have to take account of such modifications, both inmerito and when their jurisdiction is affected.This would imply, in other words, that WTO adjudicatingbodies, when faced with a given non-WTO law rule conflictingwith WTO law, have to ascertain whether the WTO Membersbound by this rule have intended to modify WTO law29 and whetherthis is lawful.C. Substantive Law: Restricted Capacity ofPanels and WTO Members?Marceau has argued on the one hand that panels and the AppellateBody ‘do not seem to have the constitutional capacity to reach anystandard recommendations in situations where another treaty provision has superseded … a WTO provision’.30 Marceau concludesthat a panel may decline jurisdiction in such cases, or should ‘[a]tbest... declare that in international law the WTO provision has beensuperseded by another treaty’s provision but that the WTO disputesettlement mechanism is prohibiting from acting further on thatspecific claim’.31 On the other hand, Marceau has taken a quiterestrictive stance regarding the capacity of WTO Members to modify WTO law. In her view, inter se modifications in line with Article 41 VCLT may not be permissible, since ‘WTO obligations arealways the same for all WTO Members’.32 In her approach, there29303132
This is where in cases of doubt the lex specialis and lex posteriorprinciples come into play.Marceau (2001), 1104.Ibidem, 1107-1108.Cf again Marceau (2001), 1105 (‘If the WTO obligations are alwaysthe same for all Members – and it can be argued they are – such bilateral modification of WTO rights and obligations may simply notbe possible without affecting the rights of other third WTO Members’).
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fore, provisions like Article XX of GATT become central, as sheexpressly admits.33In dealing with this view, which is opposed to the position presented by Pauwelyn and which appears to be preponderantly basedon Article 3.2 of the DSU,34 it is appropriate to recall the actualwording of this provision:‘The dispute settlement system of the WTO is a centralelement in providing security and predictability to themultilateral trading system. The Members recognize thatit serves to preserve the rights and obligations of Members under covered agreements, and to clarify the existingprovisions of those agreements in accordance with customary rules of interpretation of public international law.Recommendations and rulings of the DSB cannot add toor diminish the rights and obligations provided in the covered agreements.’Article 19.2 adds:‘In accordance with paragraph 2 of Article 3, in theirfindings and recommendations, the panel and Appellatecannot add to or diminish the rights and obligations provided in the covered agreements.’Articles 3.2 and 19.2 can arguably be read in two ways.These provisions can, first, be read, and are in fact usuallyread, as setting out limits on interpretation.35 Looked at from thisangle, it would be difficult to infer from the clause ‘add to or diminish’ that panels must not, in the exercise of their Kompetenzkompetenz, take account of modifications of WTO law that arebrought about lawfully, in terms of international law, by WTOMembers themselves. In other words, on this reading, it would bedifficult to sustain that the Kompetenzkompetenz of WTO adjudicating bodies has been restricted by Articles 3.2 and 19.2 of theDSU.3334
35
Ibidem, 1107.By way of introduction of the pertinent considerations, Marceaurefers to Articles 1.1, 4.2, 4.4, 7 and 11 as well as to Articles 3.2 and19.2 of the DSU (cf ibidem 1102). The ensuing inferences appear tobe based on Article 3.2 and the wording ‘add to or diminish’ whichforms part of Articles 3.2 and 19.2 of the DSU (cf ibidem, 1102 ff).Cf also Bartels (2001), 507, who however submits that these provisions limit the applicable law as well.
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However, and this brings us to the second possible reading, itcould be argued that the third sentence can not only be read in thecontext of the second part of the second sentence of Article 3.2,which refers to the interpretative task of adjudicating bodies, butalso in the context of the first part of the second sentence of Article3.2, according to which WTO Members ‘recognize that [the WTOdispute settlement system] serves to preserve the rights and obligations of Members under covered agreements’. In other words, onthe first reading, the question was whether the compétence de lacompétence of WTO adjudicating bodies has been limited. On thesecond reading the question is: does it follow from this context ofthe clause ‘must not add to or diminish’ that WTO Members haverestricted their own capacity to modify WTO law, and that, consequently, WTO adjudicating bodies must not take account of inter semodifications in conflict with WTO law?This second reading, which apparently also finds support inacademic writing,36 has to be rejected: it would imply that WTOlaw would be exempt from normal international law rules on treatymodification, thereby making it a sort of lex superior. Moreover, incertain cases the pivotal link to other international law would thenbe clauses of the type of Article XX of the GATT. This would imply that non-economic policies could in certain cases only be pursued by the least trade-restrictive means possible (e.g. if ArticleXX(b) of the GATT is applicable). It has to be emphasized, in contrast, that there are no indications in these technical DSU provisionsthat WTO Members intended to restrict their ability to undertakeinter se modifications more than would be permitted under established international law principles, in particular the pacta tertiis, lexspecialis and lex posterior principles.37D. WTO Dispute Settlement: An (Absolutely) Exclusive Forum?Concerning the jurisdictional issues addressed by Pauwelyn, Marceau and Tomazos regard must also be had to Article 23 of theDSU. According to Article 23.1 of the DSU, WTO Members ‘shallhave recourse to’ the DSU in disputes concerning WTO issues.Pursuant to Article 23.2, WTO Members must not unilaterally determine that their WTO rights have been infringed. Article 23 is3637
Cf Marceau’s view just outlined, in particular at 1104-1105.Similar doubts are also expressed by Pauwelyn (2003), 352 et seqq.,354.
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generally referred to as an ‘exclusive jurisdiction’ clause.38 Thequestion is, however, whether Article 23 is to be understood as evenexcluding any inter se modifications by WTO Members themselves,as has in fact been submitted by Kwak / Marceau and Marceau /Tomazos,39 or at least as excluding the power of WTO adjudicatingbodies to take account of such conflicting international law norms.According to these authors, Article 23 has the effect that aWTO complainant ‘arguably cannot even agree to take its WTOdispute to another forum, even if that other forum appears to bemore relevant’.40 In the view of Kwak and Marceau, Article 23‘reflects the clear intention of WTO Members to ensure that WTOadjudicating bodies can always exercise exclusive jurisdiction’.41Moreover, ‘[i]n order to change this, Members would have to negotiate amendments to Article 23’.42The arguments submitted by Kwak / Marceau and Marceau /Tomazos appear confined too strongly to the ‘four corners’ of WTOlaw. Their stance that, pursuant to Article 23, the alleged exclusivity of the WTO dispute settlement system can only be changed byexplicit amendments amounts to claiming that WTO Members havethemselves reduced their capacity to modify WTO law. It is questionable whether one can infer this from Article 23, since thewording of this provision, in particular paragraph 2, as well as thenegotiating history underline that the parties to the negotiationswere more concerned with the prevention of unilateralism43 thanwith possible (lawful) inter se modifications of Article 23 e.g.through the bi- or plurilateral establishment of overlapping international procedures, if these do not impinge on the rights of third
38
3940414243
Cf e.g. Shany (2003), 183 with further references; see also the panelreport US – Sections 301-310 of the Trade Act of 1974,WT/DS152/R, adopted on 27 January 2000, at para 7.43; GonzalezCalatayud / Marceau (2002), 281; Kwak / Marceau (2002), 8 andpassim.Cf in the following.Kwak / Marceau (2002), 12; see also Marceau / Tomazos in thisvolume.Kwak / Marceau (2002), 8; cf the similar submissions of Marceau /Tomazos in this volume.Ibidem, 8.Shany (2003), 185.
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WTO Members.44 The fact that the reading of Kwak and Marceau isimprobable is also underlined by the modest integrative ambitionsof the WTO, in which ‘the value of jurisprudential coherence ininternational trade is important, but not as crucial as in regionaleconomic integration’; therefore, in the words of Shany, the establishment of a ‘watertight closed legal subsystem’ does not appearnecessary in the case of the WTO.45 Hence, the arguments of Marceau, Kwak and Tomazos arguably do not suffice to call into question the proposition that WTO Members themselves are capableunder international law to establish competing fora as well as toexclude the jurisdiction of WTO adjudicating bodies inter se, aslong as this is done in accordance with international law.There remains the related question whether one has to interpretArticle 23 as meaning that WTO adjudicating bodies have lost theirimplied competence to take into account modifications of WTO lawthat take away their jurisdiction. If this were true, the WTO Members would have foregone the possibility to raise a pertinent objection in WTO proceedings. Consequently, WTO Members wouldhave to go through the whole of WTO proceedings and would onlybe in a position to argue ex post (ie outside of WTO legal proceedings) that the WTO adjudicating bodies are not competent. Such areading of Article 23 is hardly convincing without weighty arguments. As has been shown, however, such arguments can arguablynot be inferred from Article 23 of the DSU.IV. ConclusionsThese comments have focussed on the areas of disagreement in thepreceding papers of Joost Pauwelyn on the one hand and GabrielleMarceau and Anastasios Tomazos on the other. This paper has argued that, since the WTO treaty constitutes a normal internationalagreement, inter se modifications are permissible in line with standard rules of general international law, unless it can be shown thatWTO Members have contracted out from these principles. Thesame is true for the other relevant default rule, namely that adjudicating bodies have the authority and obligation to assess their own44
45
The requirement that the rights of third WTO Members are not infringed may entail the consequence that their interests have to betaken into account in non-WTO proceedings in a way similar toWTO standards (cf Article 10 of the DSU).Cf Shany (2003), 185-186.
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competence. Consequently, authors arguing that these legal startingpoints do not apply would have to advance sufficient legal groundsin both regards.The preceding brief analysis has tried to make it clear that thestance taken by Marceau and Tomazos, which constitutes the exception to the (general international law) rule, does not appear convincing, as sufficient arguments cannot be inferred from the WTOprovisions to which these authors refer in support of their arguments. This, on the other hand, militates in favour of Pauwelyn’sapproach which essentially constitutes a restatement of the rules ofgeneral international law: inter se modifications of the WTO treatyare permissible in line with the principles of international law; ifsuch modifications are invoked as a defense, they must be respectedby WTO adjudicating bodies.
ReferencesKlaus Adomeit (1986), Normlogik – Methodenlehre –Rechtspolitologie: Gesammelte Beiträge zur Rechtstheorie1970-1985 (= Schriften zur Rechtstheorie Vol. 120), Berlin(Duncker & Humblot) 1986.Robert Alexy (1994), Theorie der Grundrechte, Frankfurt a. M.(Suhrkamp) 21994.Lorand Bartels (2001), Applicable Law in WTO Dispute Settlement Proceedings, in: Journal of World Trade 35 (2001), 499519.Jeremy Bentham (1970), Of Laws in General (1782, ed. posthumously by H. L. A. Hart), London (The Athlone Press) 1970.Wladiyslaw Czaplinski / Gennady M. Danilenko (1990), Conflictsof Norms in International Law, in: Netherlands Yearbook ofInternational Law 21 (1990), 3-42.Walter Dubislav (1981), Die Definition, Hamburg (Felix MeinerVerlag) 41981 (reprint of the 3rd edition of 1931).Karl Engisch (1977), Einführung in das juristische Denken,Stuttgart et al. (Kohlhammer) 71977.Alexandra Gonzalez-Calatayud / Gabrielle Marceau (2002), TheRelationship between the Dispute-Settlement Mechanisms of
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MEAs and those of the WTO, in: Review of European Community and International Environmental Law 11 (2002) No. 3,275-286.Herbert Lionel Adolphus Hart (1971), Bentham’s ‘Of Laws inGeneral’, in: Rechtstheorie 2 (1971), 55-66.Herbert Lionel Adolphus Hart (1992), The Concept of Law, Oxford(Clarendon Press) 1992.Peter Hilpold (2002), Aktuelle Rechtsfragen zum WTOStreitbeilegungsverfahren, in: Favorita Papers 2/2002, 46-61.Wilfred C. Jenks (1953), The Conflict of Law-Making Treaties, in:British Year Book of International Law 30 (1953), 401-453.Wolfram Karl (1984), Treaties, Conflicts between, in: Rudolf Bernhardt (ed.), Encyclopedia of Public International Law Vol. 7,Amsterdam / London / New / Tokyo (North Holland) 1984,468-473.Hans Kelsen (1979), Allgemeine Theorie der Normen (edited byKurt Ringhofer and Robert Walter), Wien (Manz) 1979.Friedrich Klein (1962), Vertragskonkurrenz, in: Karl Strupp /Hans-Jürgen Schlochauer (eds.), Wörterbuch des VölkerrechtsVol. 3, Berlin (de Gruyter) 21962, 555.Ulrich Klug (1982), Juristische Logik, Berlin (Springer) 41982.Kyung Kwak / Gabrielle Marceau (2002), Overlaps and Conflictsof Jurisdiction between the WTO and RTAs. Paper presentedin the Conference on Regional Trade Agreements, WTO 26April 2002 (available at http://www.wto.org/english/tratop_e/region_e/sem_april02_e/sem_april02_ reading_e.htm9).Hans Lenk (1974), Konträrbeziehungen und Operatorengleichungenim deontologischen Sechseck, in: Hans Lenk (ed.),Normenlogik. Grundprobleme der deontischen Logik, Pullachbei München (Verlag Dokumentation) 1974, 198.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) No. 6, 1081-1131.David Palmeter / Petros Mavroïdis (1998), The WTO Legal System: Sources of Law, in: American Journal of InternationalLaw 92 (1998), 398-413.
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Joost Pauwelyn (2003), Conflict of Norms in Public InternationalLaw. How WTO Law Relates to Other Rules of InternationalLaw, Cambridge (Cambridge University Press) 2003.August Reinisch (2002), Der Streit ums Forum – oder: Was gehörteigentlich vor WTO-Panels?, in: Recht der InternationalenWirtschaft 48 (2002), 449-456.Richard Robinson (1968), Definition, Oxford (Clarendon Press)1968.Klaus F. Röhl (1995), Allgemeine Rechtslehre. Ein Lehrbuch, Kölnet al. (Heymann) 1995.Yuval Shany (2003), The Competing Jurisdictions of InternationalCourts and Tribunals, Oxford (Oxford University Press) 2003.August Thon (1878), Rechtsnorm und subjectives Recht, Weimar(Böhlau) 1878.Joel Trachtman (1999), The Domain of WTO Dispute Resolution,in: Harvard International Law Journal 40 (1999) No. 2, 333377.Erich Vranes (2003), The Banana Dispute. Fundamental Issuesunder WTO Law, in: Fritz Breuss / Stefan Griller / ErichVranes (eds.), The Banana Dispute. An Economic and LegalAnalysis, Vienna / New York (Springer) 2003, 39-111.Ota Weinberger (1989), Rechtslogik, Berlin (Duncker & Humblot)21989.Wolfgang Weiss (2003), Security and Predictability under WTOLaw, in: World Trade Review 2 (2003) No. 2, 183-219.Wilhelm Heinrich Wilting (1996), Vertragskonkurrenz imVölkerrecht, Köln et al. (Heymann) 1996.Rüdiger Wolfrum / Nele Matz (2003), Conflicts in InternationalEnvironmental Law (= Beiträge zum ausländischenöffentlichen Recht und Völkerrecht Vol. 164), Berlin(Springer) 2003.Manfred Zuleeg (1977), Vertragskonkurrenz im Völkerrecht. Teil I:Verträge zwischen souveränen Staaten, in: German Yearbookof International Law 20 (1977), 246-276.
William J. Davey*
The Quest for Consistency:Principles Governing the Interrelationof the WTO AgreementsI.II.
The WTO Agreements and the Treatment of ConflictsWTO Jurisprudence and the Treatment of ConflictsA. Conflicts in Public International LawB. Resolving Conflicts in the WTO Agreements1. The EC Bananas Case: GATT Article XI and theATC2. The Indonesia Autos Case: GATT and theSubsidies Agreement3. GATT and the TBT Agreement4. SummaryIII. Overlapping Obligations in the WTO AgreementIV. The Consequences of the Cancún Failure on theCoherence of International Economic LawV. ConclusionReferences
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Ensuring consistency and avoiding conflicts between agreementshave been longstanding problems in the GATT/WTO system. Forthe most part, GATT – the General Agreement on Tariffs and Trade– itself seems to be basically internally consistent.1 However, in the*
1
Guy Raymond Jones Professor of Law, University of Illinois Collegeof Law. I would like to thank Lorand Bartels and the otherparticipants in the conference for their comments.There appear to be a few potential conflicts that may arise from thebasic provisions of GATT. See the cases mentioned under ‘Scope ofalternative GATT articles’ in Pescatore / Davey / Lowenfeld (1991),Index 1/15. For example, there are aspects of the relationship between Articles III and XI that have never been definitively established. Should a measure that bans certain types of products, whetherdomestic or imported, be analyzed under Article XI if it is applied at
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Tokyo Round, the coherence of GATT was undermined by the negotiation of side agreements, which dealt with GATT-related topics– such as dumping, subsidies, valuation and standards, but to whichmany GATT members were not parties.2 This resulted in the socalled GATT à la carte. From a legal perspective, it raised difficultissues as to when GATT members, who were not parties to a sideagreement, might nonetheless benefit from it because of GATT’smost-favored-nation clause.3The creation of the World Trade Organization in 1995 largelyeliminated this problem through what was called its ‘single under-
2
3
the border to bar entry to a product? Or under Article III? Or both?While it is often said that Article III applies to internal measures andArticle XI applies to border measures, the distinction is not alwaysclear and the language at issue is subject to more than one interpretation. The Ad note to Article III provides that such measures are subject to Article III, but does not explicitly exclude application of Article XI as well. Generally speaking, however, the potential conflictsamong GATT articles did not raise major problems for dispute settlement panels in their application of GATT rules.The parties to the Tokyo Round agreements tended to be limited todeveloped country GATT parties, but the membership varied on anagreement-by-agreement basis. The members of each agreementwere listed annually in GATT Activities 19xx, the annual review ofthe work of the GATT.Because some of the Tokyo Round agreements dealt with mattersthat fell within the scope of Article I and its most-favored-nation(MFN) obligation, it would seem that all GATT members wouldbenefit from concessions in respect of those matters made by a member to other parties to a Tokyo Round agreement, notwithstanding thefact that the GATT member not a party to the agreement would notbe subject to any obligations under the agreement. The matter wasnever definitively decided, although the issue was raised in a casebrought by India against the United States. In that case, India notedthat the United States only applied countervailing duties (CVDs) onproducts from parties of the Tokyo Round subsidies agreement if imports of those products caused material injury to US industry andclaimed that the