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SpringerWienNewYork
European Community Studies Association of Austria(ECSA Austria) Publication SeriesVolume 8Herausgegeben von derOsterreichischen Gesellschaft fiir Europaforschung(ECSA Austria)
Springer WienNew York
Stefan Griller (ed.)At the Crossroads:The World Trading Systemand the Doha Round
SpringerWienNewYork
Univ.-Prof. Dr. Stefan GrillerEuropainstitut, Wirtschaftsuniversitat Wien
Financial support was given by BundesministeriumWissenschaft undForschung, Wien
fur
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PrefaceSince its foundation in 1995 the legitimacy of the WTO – andherewith the notion of organising global trade on the basis ofconcepts like trade-liberalisation, treaty-based rule of law andenforceability – is challenged for very different reasons: Some –mostly in the industrialised parts of the world – feel that the systemas such or particular aspects like, e.g., the regulations for trade inservices might be a threat to democracy, others – mostly fromdeveloping countries or newly industrializing countries – deem thesystem fundamentally imbalanced, allowing for the application ofdouble standards by the developed countries. Besides, issues likethe protection of environmental or social standards or measuresdirected at public health under the conditions of trade-liberalisationrank high on the respective agendas.Although it is evident that many of those arguments arecontradictory in themselves and irreconcilable as a whole, the WTOtried to react on this widespread criticism: The November 2001declaration of the WTO’s Fourth Ministerial Conference in Doha,Qatar under the declamatory heading of the ‘Doha DevelopmentAgenda’ provided the mandate for negotiations on a range ofsubjects. The explicit justification was to place the developingcountries’ needs and interests ‘at the heart’ of the organisation’swork-programme, a strong commitment to the observance ofinternationally recognized core labour standards, and to ensureinternal transparency and participation of all Members, to mentionjust a few items of the ambitious agenda.Although this high level of ambition made immediate successrather improbable, the failure of the WTO’s Ministerial Conferencein the Mexican sea-resort Cancún in September 2003 came as ashock to many observers. More so, since it were obviously the riftsbetween the developed and the developing countries’ positions thatcontributed the main share to this failure: Instead of reconcilingthose differences, the course of negotiations in Cancún made themlook more insurmountable than ever. Summing up, Cancún’s failure
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Preface
left the WTO and its efforts to create a new basis for global trade ina state of paralysis, thus adding considerably to its already existinglegitimacy-problems that stood at the outset of the entire endeavour.This situation was aggravated considerably by the fact that thenegative outcome of Cancún was followed by a rather similar resultof the ensuing Ministerial in Hong Kong in December 2005.Shortly after the Cancún-breakdown, in November 2003,ECSA Austria organised a conference in Vienna on ‘The WTOafter the Failure of Cancún’. This volume not only documents theproceedings of this conference but, against the backdrop of theongoing efforts to revive the Doha Round wants to be understood assome sort of stocktaking: What did really go wrong in Cancún?Where does the WTO stand today? Has there been any progressmade since? And, finally: Is there any chance left to reach theambitions goals postulated by the Doha Development Agenda?These and other, related questions are being discussed in thevolume at hand. Most of the contributions presented here reflect thestate of negotiations as it stood in 2004, and unfortunately, due totechnical and organisational problems, the volume can appear onlynow, three years later. However, progress in the Doha Roundnegotiations since then are almost negligible. Therefore we decidedto publish this volume despite this delay, expecting that readers willshare our view that the issues discussed therein are as topical asthey have been before.The realisation of the conference ‘The WTO after the Failureof Cancún’ as well as this book was only possible with the financialsupport provided by the European Commission, DG Education andCulture and the Austrian Ministry for Science and Research. Onbehalf of ECSA Austria, I would like to thank these institutions fortheir help.Vienna, September 2007Stefan Griller
Table of Contents
I.
WTO-Law: Evolution and ContextJoost PauwelynHow to Win a WTO Dispute Based on Non-WTO Law?Questions of Jurisdiction and Merits
1
Gabrielle Marceau / Anastasios TomazosComments on Joost Pauwelyn’s Paper: ‘How to Win aWTO Dispute Based on Non-WTO Law?’
54
Erich VranesComments on Joost Pauwelyn’s Paper: ‘How to Win aWTO Dispute Based on Non-WTO Law?’
83
William J. DaveyThe Quest for Consistency: Principles Governing theInterrelation of the WTO Agreements
101
Lorand BartelsTreaty Conflicts in WTO Law – A Comment on WilliamJ. Davey’s Paper ‘The Quest for Consistency’129Peter-Christian Müller-GraffProtectionism or Reasonable National Regulation? TheProtection of Non-Economic Interests as Barriers to theFree Movement of Goods: A Comparison of EC Law and147WTO LawPiet EeckhoutTrade and Non-Economic Policies in the EU and in theWTO. A Comment on Peter-Christian Müller-Graff’sPaper ‘Protectionism or Reasonable NationalRegulation?’
169
Thomas Cottier / Satoko TakenoshitaDecision-making and the Balance of Powers in WTONegotiations: Towards Supplementary Weighted Voting
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II. Items on the AgendaFritz BreussDoes the ‘Development Round’ Foster Development?
231
Alan MatthewsAgriculture after Cancún
315
Markus F. HofreitherCancún and beyond – A European Perspective ofAgricultural Issues
339
Wolfgang WeißGATS and Domestic Regulation –A Threat to Democracy?
369
Jacques H. J. BourgeoisPost Cancún WTO TRIPs – A Bumpy Road
385
Abbreviations
401
The Authors of this Volume
407
Joost Pauwelyn*
How to Win a WTO Dispute Based on Non-WTOLaw? Questions of Jurisdiction and Merits**I.II.
IntroductionWhy and How Can WTO Panels Apply Non-WTOLaw?III. Because of Non-WTO Law, the WTO Panel Has NoJurisdictionA. A Bilateral Agreement not to Appeal a WTOPanelB. A Bilateral Agreement not to Invoke WTODispute SettlementC. A Treaty Conferring Exclusive Jurisdiction toAnother TribunalD. A Treaty Providing for Choice of Forum butMaking any Choice ExclusiveE. A Treaty Providing for Compulsory (but notExclusive) Jurisdiction to Another TribunalF. Res judicata Effect of Rulings by Other Courtsor TribunalsIV. Because of Non-WTO Law, a WTO Violation isJustifiedA. Non-WTO Defenses Explicitly Incorporatedinto the WTO Legal SystemB. WTO Violations Permitted (or Even Imposed)Pursuant to the Dispute Settlement Provisions ofAnother Treaty*
**
26141617182426323536
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Associate Professor, Duke University School of Law, formerly withthe Legal Affairs Division and the Appellate Body Secretariat of theWTO.This paper originally was published in Journal of World Trade 37(2003), No. 6 and is reproduced here by courtesy of Kluwer Law International of WoltersKluwer.
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C. WTO Violations Permitted (or Even Imposed)Pursuant to the Provisions of Another TreatyD. WTO Violations Permitted under Another Treatyon Condition that the WTO Panel Finds that thisOther Treaty is Respected/ViolatedV. ConclusionReferences
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I. IntroductionIt has become standard practice for WTO panels and the AppellateBody to use non-WTO law when interpreting the meaning of termsin the WTO agreement. Such interpretation can, for example, leadto broader GATT exceptions, as in US – Shrimp, where the Appellate Body interpreted the words ‘exhaustible natural resources’ inGATT Article XX(g) with reference to certain environmental treaties.1 It may also narrow the scope of GATT rules or exceptions, asshown in the ICJ Case Concerning Oil Platforms, where a treatyprovision similar to GATT Article XXI(b)(iii) on essential securityinterests was interpreted restrictively with reference to rules ofgeneral international law prohibiting the use of force.2 In addition totreaty interpretation, non-WTO law is commonly referred to also tofill largely procedural gaps in the WTO agreement: the WTOagreement is silent on questions such as burden of proof, standing,representation before panels, the retroactive application of treatiesor error in treaty formation; as a result, reference has been made torules of general international law addressing those questions, essentially custom or general principles of law binding on all states.31
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Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products (‘US – Shrimp’), WT/DS58/AB/R,adopted 6 November 1998, DSR 1998:VII, 2755, paras. 128-132. Onthe process of interpreting the WTO treaty with reference to nonWTO law: Marceau (1999) and Pauwelyn (2003a), 244-274 (Treatyinterpretation as a conflict-avoidance tool).Case Concerning Oil Platforms (Islamic Republic of Iran v UnitedStates of America), Judgment of 6 November 2003, at http://www.icj-cij.org/icjwww/idocket/iop/iopjudgment/ioptocjudgment(s).htm, discussed infra footnote 9.For an overview of relevant case law: Cameron / Gray (2001) andPauwelyn (2001), 563. See also Hilf (2001). For an increasingly isolated critique see McGinnis (2003), 36 (‘I would not interpret the
How to Win a WTO Dispute Based on Non-WTO Law?
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As important as those two processes of reference to non-WTO lawmay be, it is unlikely that they determine the substantive outcomeof a WTO dispute: the process of treaty interpretation stops therewhere the words in the relevant WTO provision are unambiguouslyclear (interpretation contra legem is prohibited); applying thelargely procedural rules of general international law may eventuallydecide a case, but hardly influences its substantive merits.This essay takes the relevance of non-WTO law before WTOpanels a step further. It examines instances where non-WTO lawconstitutes an independent defense against claims of violation ofWTO law. Elsewhere,4 I have set out a conceptual framework thatpermits WTO panels to take account of such independent defensesunder non-WTO law (summarized in Section I below). In this essay, the main objective is rather to offer real-life examples wherenon-WTO law can play this role based, first, on specific disputesthat have most recently come before WTO panels or other tribunalsand, second, on newly negotiated treaties with a trade component(ranging from the Kimberley process on conflict diamonds5 to theWHO Framework Convention on Tobacco Control6).In this exercise, it is useful to distinguish two types of cases:First, cases where the invocation of non-WTO law may lead a panelto find that it has no jurisdiction (Section II); Second, cases wherenon-WTO law may effectively justify what would otherwise be a
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WTO to permit it to be … supplemented by emerging customary international law … The WTO represents a comprehensive code for theoverriding purpose of expanding trade. Therefore, it is not amenableto supplementation by other rules with other objectives that will detract from this purpose’): It is difficult to see, however, how WTOpanels could operate outside general international law and have toinvent from scratch, for example, rules on burden of proof, goodfaith, state responsibility etc.; nor is it easy to square ProfessorMcGinnis’ view with the Vienna Convention rules on treaty interpretation, explicitly confirmed in Article 3.2 of the DSU and numerous Appellate Body decisions.Pauwelyn (2003a), 440-478 and Pauwelyn (2001), 559-565.The text of the Kimberley Process Certification Scheme can be foundat http://www.kimberleyprocess.com.Adopted unanimously by the 56th World Health Assembly on 21May 2003. The final text is contained in World Health AssemblyResolution 56.1, available at http://www5.who.int/tobacco/page.cfm?sid=96.
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breach of WTO rules (Section III). By way of conclusion, the essaysummarizes the different alternatives available to WTO panelsfaced with defenses under non-WTO law, as well as some of thepractical consequences and policy concerns that they entail.To date WTO panels and the Appellate Body have been able toavoid the question of whether defendants can win a WTO disputebased solely on non-WTO law. In the not so distant future, they willno longer be able to hold off this boat: Firstly, because of the everincreasing interaction between WTO law and other branches of international law, be it regional trade agreements or other treaties orregimes with a trade component (such as the Cartagena BiosafetyProtocol7 or recommendations by the International Labor Organization (ILO) in respect of Myanmar8); Secondly, because of the growing willingness of WTO members to explicitly rely on these othersources of law even before a WTO panel, inspired largely by thecompulsory nature of WTO dispute settlement: Any trade-relatedpolicy of all WTO members can now be challenged at the WTOwithout the possibility for defendants to block the process. Defendants are, therefore, more likely to invoke all possible defenses,including those to be found under non-WTO law.If and when the occasion arises, it is crucial that the AppellateBody realizes the centrality of this question both for the WTO andthe wider system of international law (indeed, questions of overlapping rules of international law arise not only at the WTO, but increasingly also before the International Court of Justice9, the World789
Cartagena Protocol on Biosafety to the Convention on BiologicalDiversity, Jan. 29, 2000, 39 ILM 1027.See infra footnote 99.See the recent Case Concerning Oil Platforms (Islamic Republic ofIran v United States of America), Judgment of 6 November 2003, athttp: //www.icj-cij.org/icjwww/idocket/iop/iopjudgment/ioptocjudgment(s).htm. In that case, the interaction was between ArticleXX:1(d) of the Iran-US Treaty of Amity of 1955 (permitting ‘measures necessary to protect essential security interests of a party’) andgeneral international law rules prohibiting the use of force, in particular those on self-defense. The question was whether US attackson Iranian oil platforms could be justified as ‘measures necessary toprotect essential security interests’ of the United States, in line withArticle XX:1(d), and whether in the examination of this questiongeneral international law rules on the use of force played a role. TheICJ decided to interpret Article XX:1(d) with reference to rules on
How to Win a WTO Dispute Based on Non-WTO Law?
5
Bank and the IMF,10 UNCLOS and investment-related arbitrations11as well as regional institutions such as the courts of the EuropeanUnion12 and the European Court of Human Rights13). After all, thequestion is crucial not only when formally raised before a WTOpanel, it is decisive also when national parliaments and administrations are considering the adoption of new policies – ranging fromtrade embargoes to the adoption of a new treaty with a commercialimpact – and raise the question of whether a proposal, based onnon-WTO rules of international law, would pass muster before aWTO panel. In this sense, offering legal predictability to nationaldecision-makers is as important as resolving the systemic questionsconcerning the interaction between WTO law and other rules ofinternational law.
10
11
12
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the use of force (invoking Article 31.3(c) of the Vienna Conventionon the Law of Treaties in support); found that the US attacks werenot justified under those rules as acts of self-defense and, on that basis, concluded that the US attacks could not be seen either as ‘necessary to protect essential security interests’ of the United States. In theend, however, this lack of justification under Article XX:1(d) did notplay a role since the ICJ later decided that the US attacks did notbreach the 1955 Treaty of Amity in the first place (hence there wasno need to justify US conduct under Article XX:1(d) to begin with).In particular, an increasing number of overlaps arise between therules of the Bank and the IMF, on the one hand, and UN related rulesand decisions, on the other. This overlap is complicated by the statednon-political nature of the Bank and the IMF (set out in Arts. IV,section 10 and III, section 5(b) of the Bank’s Articles of Agreementand Arts. I (v) and V, section 3 of the IMF’s Articles of Agreement).See also the role of, for example, international human rights standards before the World Bank’s Inspection Panel in cases such asChad: Petroleum Development Project, discussed in World Bank(2003), 96.In respect of UNCLOS, see infra footnotes 19, 64, 68 and 75. For aglimpse of potential overlaps in investment disputes, see Verhoosel(2003) and the ICSID case Compania de Aguas del Aconquija S.A. &Vivendi Universal v Argentine Republic 40 ILM 426 (2001) and 41ILM 1135 (2002), discussed infra in footnotes 38, 51, 55, 59, 69 and72.See, for example, Opel Austria v Council, Case C-115/94 [1997]ECR II-39 and Racke GmbH v Hauptzollamt Mainz, Case C-162/96[1998] ECR I-3655.See, for example, Caflisch (2002), 1-12.
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II. Why and How Can WTO PanelsApply Non-WTO Law?It is undisputed that WTO panels have jurisdiction only to decideon claims under WTO covered agreements. Under Article 1.1, theDSU14 applies only to ‘disputes brought pursuant to the consultation and dispute settlement provisions of the agreements listed inAppendix 1 to the [DSU]’, i.e., the so-called WTO covered agreements. The question here is, rather, whether in the examination ofsuch WTO claims, non-WTO law can offer an independent defenseor justification that precludes a panel from finding a breach ofWTO law. This question relates to the scope of the applicable lawbefore a WTO panel, a matter to be distinguished clearly from thatof the jurisdiction of WTO panels.15 The difference between jurisdiction and applicable law is well known and accepted in other international courts and tribunals,16 though often neglected at theWTO. Making an analogy with the limited jurisdiction of the International Court of Justice (ICJ), the Lockerbie cases decided by theICJ perfectly illustrate the difference between jurisdiction and applicable law: There, the ICJ had jurisdiction to consider Libyan141516
Understanding on Rules and Procedures Governing the Settlement ofDisputes, Annex 2 to the Marrakesh Agreement (DSU).Bartels (2001) and Pauwelyn (2003a), 443-472.As most recently noted by an Arbitral Tribunal under Annex VII ofUNCLOS:‘The Tribunal agrees ... that there is a cardinal distinction betweenthe scope of its jurisdiction ..., on the one hand, and the law to be applied by the Tribunal ..., on the other hand’ (Mox Plant case (Irelandv United Kingdom), Order No. 3 of 24 June 2003, at http://www.pcacpa.org/PDF/MOX%20Order%20no3.pdf, p. 6, para. 19).In the same vein, see the investor-state dispute settlement mechanismunder Chapter 11 of NAFTA: Arts. 1116-7 of NAFTA entitled‘Claim by an Investor of a Party…’ limits the jurisdiction of NAFTAarbitration tribunals to claims of violation of Section A of NAFTAChapter 11 and NAFTA Arts. 1503(2) and 1502(3)(a); in contrast,Art. 1131 of NAFTA entitled ‘Governing Law’ sets out the broaderscope of the applicable law to be considered in examining the validity of those enumerated NAFTA claims (‘A Tribunal established under this Section shall decide the issues in dispute in accordance withthis Agreement [that is, all NAFTA provisions] and applicable rulesof international law’, emphasis added).
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claims only under the Montreal Convention. However, this did notstop it from also examining other international law, in particularUN Security Council Resolution 748 invoked in defense by theUnited Kingdom and the United States, as part of the applicablelaw.17The question of applicable law before WTO panels is addressed in DSU Article 7. It instructs panels to examine the matterreferred to them ‘in the light of the relevant provisions’ of the covered agreement(s) cited by the parties to the dispute and to ‘addressthe relevant provisions in any covered agreement or agreementscited by the parties to the dispute’. This provision imposes an obligation on panels to address and possibly apply certain WTO rules.At this juncture, two possibilities arise: One either considers thisreference to WTO rules as an exhaustive list of all rules that WTOpanels can possibly apply;18 Or one holds the view that confirmingthe relevance of some rules – in casu those that WTO panels willmost commonly be asked to apply, i.e. WTO rules – does not preclude that WTO panels may apply also other, non-WTO rules inparticular circumstances. In my opinion, the latter view must prevail, for several reasons.First, as a practical matter, WTO case law shows that WTOpanels and the Appellate Body have not limited themselves to thefour corners of WTO covered agreements: they have referred togeneral principles of law, customary international law and evenother, non-WTO treaties.19 Second, DSU Article 3.2 explicitly con17
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Questions of Interpretation and Application of the 1971 MontrealConvention Arising from the Aerial Incident at Lockerbie (Libya vU.S.), Provisional Measures, 1992 ICJ REP. 114, para. 42 (Apr. 14).See, for example, Trachtman (1999), 342 (stating that the explicitlanguage in the DSU ‘would be absurd if rights and obligations arising from other international law could be applied by the DSB’ andthat ‘[w]ith so much specific reference to the covered agreements asthe law applicable in WTO dispute resolution, it would be odd if themembers intended non-WTO law to be applicable’).See the case law summarized in the references supra footnotes 1, 3and 15. As a matter of fact, panels had little choice but to apply certain rules of general international law. Or should they have re-invented from scratch rules on, for example, burden of proof, goodfaith, pacta sunt servanda, etc.? As stated in a recent award under the1992 Convention for the Protection of the Marine Environment of theNorth-East Atlantic (OSPAR Convention):
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firms that WTO covered agreements must be clarified ‘in accordance with customary rules of interpretation of public internationallaw’. Article 31(3) of the Vienna Convention on the Law of Treaties, part of the rules of interpretation thus referred to, directs that ininterpreting a treaty, account must be taken not only of the treatyitself (in casu, the WTO treaty), but also of ‘any subsequent agreement between the parties regarding the interpretation of the treatyor the application of its provisions’, as well as ‘any relevant rules ofinternational law applicable in the relations between the parties’.The WTO treaty thereby explicitly frames itself in the wider context of public international law, including other non-WTO treaties.Third, and most importantly, the WTO agreement is a treaty part ofpublic international law. By definition, and even without the explicit confirmation in DSU Article 3.2, the WTO agreement cannot,therefore, be applied in isolation from other rules of internationallaw. Just as private contracts are automatically born into a systemof domestic law, so treaties are automatically born into the systemof international law. Much the way private contracts do not need tolist all the relevant legislative and administrative provisions of domestic law for them to be applicable to the contract, so treaties neednot explicitly set out rules of general international law for them tobe applicable to the treaty (for example, the text of the Vienna Convention does not have to be attached to the new treaty for generalinternational law rules on the law of treaties to be applicable to it).20
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‘It should go without saying that the first duty of the Tribunal is toapply the OSPAR Convention. An international tribunal, such as thisTribunal, will also apply customary international law and generalprinciples unless and to the extent that the Parties have created a lexspecialis. Even then, it must defer to a relevant jus cogens withwhich the Parties’ lex specialis may be inconsistent’ (PermanentCourt of Arbitration, Dispute Concerning Access to Information under Article 9 of the OSPAR Convention (Ireland v United Kingdom),Final Award, 2 July 2003, para. 84 at http://www.pca-cpa.org/PDF/OSPAR%20Award.pdf).For example, the obligation to interpret treaty provisions in the lightof rules of general international law, as called for in Article 31.3(c)of the Vienna Convention, was confirmed in the Case ConcerningOil Platforms (Islamic Republic of Iran v United States of America),Judgment of 6 November 2003, supra footnote 9. This rule of treatyinterpretation was found to apply even though the Treaty of Amity in
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The same applies as regards other, non-WTO treaties: the WTOtreaty was created next to other pre-existing treaties and, in turn,continues its existence in a framework where other, new treaties arecreated next to it. True, unlike Article 293 of the UN Law of theSea Convention (UNCLOS), Article 1131 of NAFTA and Article38 of the ICJ Statute – which explicitly include other rules of international law as part of the applicable law – the DSU does not explicitly confirm its creation and existence in international law.However, given the nature of the WTO agreement as a treaty underpublic international law, there was no need for the DSU to do so.On the contrary, the principle is that all other international law continues to exist next to the WTO treaty unless the WTO treaty explicitly deviates or contracts out of this other law.21 In other words,
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dispute did not explicitly incorporate or refer to the Vienna Convention rules on treaty interpretation.Confirmed in the WTO by the Panel Report on Korea – Measures AffectingGovernmentProcurement,WT/DS163/R,adopted19 June 2000, para. 7.96 (‘Customary international law applies generally to the economic relations between the WTO Members. Suchinternational law applies to the extent that the WTO treaty agreements do not ‘contract out’ from it. To put it another way, to the extent there is no conflict or inconsistency, or an expression in a covered WTO agreement that implies differently, we are of the view thatthe customary rules of international law apply to the WTO treatiesand to the process of treaty formation under the WTO’) and the Appellate Body Report on United States – Anti-Dumping Measures onCertain Hot-Rolled Steel Products from Japan, WT/DS184/AB/R,adopted 23 August 2001, para. 60 and footnote 40 (‘We observe thatthe rules of treaty interpretation in Articles 31 and 32 of the ViennaConvention apply to any treaty, in any field of public internationallaw, and not just to the WTO agreements’; ‘It might be possible forthe parties to a treaty expressly to agree that the rules of treaty interpretation in Articles 31 and 32 of the Vienna Convention do not apply, either in whole or in part, to the interpretation of a particulartreaty. Likewise, the parties to a particular treaty might agree uponrules of interpretation for that treaty which differ from those rules ofinterpretation in Articles 31 and 32 of the Vienna Convention. Butthis is not the case here’). For a confirmation by other courts and tribunals: Georges Pinson case, Franco-Mexican Commission (Verzijl,President), A.D. 1927-8, No. 292, para. 50 (‘Every international convention must be deemed tacitly to refer to general principles of international law for all questions which it does not itself resolve in ex-
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there was no need for Article 7 of the DSU to explicitly include alsoother rules of international law as part of the applicable law beforeWTO panels; to the extent that those other rules were not deviatedfrom in the WTO treaty, this is automatically the case.Finally, an oft-cited provision in support of the alleged obligation on WTO panels to contain themselves to WTO covered agreements, is DSU Article 3.2 which provides: ‘Recommendations andrulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements’.22 Should this provisionbe read as saying that WTO panels, the Appellate Body, and theDSB cannot ever add to or diminish the rights and obligations explicitly set out in WTO covered agreements?23 For the reasons set
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press terms and in a different way’); Chorzow Factory (Merits),PCIJ, Ser. A, no. 17, 