Mandatory and discretionary legislation: The continued relevance of the distinction under the WTO

Journal of International Economic Law

Volumn 5, Issue 3, 2002, Pages 571-604

  Bhuiyan, Sharif ^a  

^a TRINITY COLLEGE   (United Kingdom)

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EID: 0036383096     PISSN: 13693034     EISSN: None     Source Type: Journal    
DOI: 10.1093/jiel/5.3.571     Document Type: Article

References (209)

1. See e.g. United States - Measures Affecting the Importation, Internal Sale and Use of Tobacco ('US - Tobacco'), adopted 4 October 1994, DS44/R, para 118; and Appellate Body Report, United States - Anti-Dumping Act of 1916 ('US - Anti-Dumping Act') WT/DS136/AB/R, WT/DS162/AB/R (28 August 2000), para 88.
2. See e.g. United States - Measures Affecting the Importation, Internal Sale and Use of Tobacco ('US - Tobacco'), adopted 4 October 1994, DS44/R, para 118; and Appellate Body Report, United States - Anti-Dumping Act of 1916 ('US - Anti-Dumping Act') WT/DS136/AB/R, WT/DS162/AB/R (28 August 2000), para 88.
3. Throughout this paper the acronym 'GATT' will be used to refer to the de facto institution that came into being under the auspices of the GATT 1947. The expressions 'GATT 1947' or 'General Agreement' will be used to refer to the General Agreement on Tariffs and Trade, opened for signature 30 October 1947, 55 UNTS 194. The expression 'GATT 1994' will be used to refer to the General Agreement on Tariffs and Trade 1994 as contained in Annex 1A of the WTO Agreement.
4. Throughout this paper, the word 'distinction' will be used to refer to the distinction that is made in GATT/WTO jurisprudence between mandatory and discretionary legislation.
5. A further issue regarding characterization of measures as 'effective' as opposed to 'mandatory' has arisen in a number of cases. For instance, in Japan - Trade in Semi-conductors, adopted 4 May 1988, BISD 35S/116, an issue arose as to whether the Japanese measures complained of could be characterized as export 'restrictions' in view of the Japanese argument that they were not binding or mandatory on private actors. The panel held that in order for the non-mandatory measures to be considered as 'restrictions' there must be sufficient incentives or disincentives for the measures to take effect and they must be dependant on government intervention (para 109). See also Japan - Measures Affecting Consumer Photographic Film and Paper WT/DS44/R (31 March 1998), paras 10.42-10.49. This issue will not be addressed in this paper, because unlike the first two situations it concerns private actors and not the executive as the addressees of the national measures in question.
6. A further issue regarding characterization of measures as 'effective' as opposed to 'mandatory' has arisen in a number of cases. For instance, in Japan - Trade in Semi-conductors, adopted 4 May 1988, BISD 35S/116, an issue arose as to whether the Japanese measures complained of could be characterized as export 'restrictions' in view of the Japanese argument that they were not binding or mandatory on private actors. The panel held that in order for the non-mandatory measures to be considered as 'restrictions' there must be sufficient incentives or disincentives for the measures to take effect and they must be dependant on government intervention (para 109). See also Japan - Measures Affecting Consumer Photographic Film and Paper WT/DS44/R (31 March 1998), paras 10.42-10.49. This issue will not be addressed in this paper, because unlike the first two situations it concerns private actors and not the executive as the addressees of the national measures in question.
7. Thailand - Restrictions on Importation of and Internal Taxes on Cigarettes ('Thai - Cigarettes'), adopted 7 November 1990, BISD 37S/200.
8. See EPCT/TAC/PV/5, at 20, quoted in: WTO, Analytical Index Guide to GATT Law and Practice 1075 (Geneva: World Trade Organization 1995).
9. Import Restrictions of the Federal Republic of Germany ('German Import Restrictions I'), adopted 30 November 1957, BISD 6S/55, para 12.
10. See e.g. United States - Taxes on Petroleum and Certain Imported Substances ('US - Superfund'), adopted 17 June 1987, BISD 34S/1361; Panel Report, Argentina - Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items ('Argentina - Textiles') WT/DS56/R (25 November 1997), para 6.45.
11. See e.g. United States - Taxes on Petroleum and Certain Imported Substances ('US - Superfund'), adopted 17 June 1987, BISD 34S/1361; Panel Report, Argentina - Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items ('Argentina - Textiles') WT/DS56/R (25 November 1997), para 6.45.
12. See e.g. United States - Measures Affecting Alcoholic and Malt Beverages ('US - Malt Beverages'), adopted 19 June 1992, BISD 39S/206, para 5.60; and Panel Report, India - Patent Protection for Pharmaceutical and Agricultural Chemical Products ('India - Patent I') WT/DS50/R (5 September 1997), para 7.35.
13. See e.g. United States - Measures Affecting Alcoholic and Malt Beverages ('US - Malt Beverages'), adopted 19 June 1992, BISD 39S/206, para 5.60; and Panel Report, India - Patent Protection for Pharmaceutical and Agricultural Chemical Products ('India - Patent I') WT/DS50/R (5 September 1997), para 7.35.
14. See e.g. Thai - Cigarettes and US - Tobacco.
15. See e.g. India Patent I.
16. See e.g. Panel Report, United States - Sections 301-310 of the Trade Act of 1974 ('US - Section 301') WT/DS152/R (22 December 1999).
17. See e.g. EEC - Regulation on Imports of Parts and Components ('EEC - Parts and Components'), adopted 16 May 1990, BISD 37S/132; United States - Denial of Most-Favored-Nation Treatment as to Non-Rubber Footwear from Brazil ('US - Non-Rubber Footwear'), adopted 19 June 1992, BISD 39S/128, para 6.12; and Panel Report, Canada - Measures Affecting the Export of Civilian Aircraft ('Canada - Aircraft') WT/DS70/R (14 April 1999), paras 9.121 and 9.204.
18. See e.g. EEC - Regulation on Imports of Parts and Components ('EEC - Parts and Components'), adopted 16 May 1990, BISD 37S/132; United States - Denial of Most-Favored-Nation Treatment as to Non-Rubber Footwear from Brazil ('US - Non-Rubber Footwear'), adopted 19 June 1992, BISD 39S/128, para 6.12; and Panel Report, Canada - Measures Affecting the Export of Civilian Aircraft ('Canada - Aircraft') WT/DS70/R (14 April 1999), paras 9.121 and 9.204.
19. See e.g. EEC - Regulation on Imports of Parts and Components ('EEC - Parts and Components'), adopted 16 May 1990, BISD 37S/132; United States - Denial of Most-Favored-Nation Treatment as to Non-Rubber Footwear from Brazil ('US - Non-Rubber Footwear'), adopted 19 June 1992, BISD 39S/128, para 6.12; and Panel Report, Canada - Measures Affecting the Export of Civilian Aircraft ('Canada - Aircraft') WT/DS70/R (14 April 1999), paras 9.121 and 9.204.
20. See for example, US - Superfund; EEC - Parts and Components; Thai - Cigarettes, para 84; US - Malt Beverages, para 5.39; US - Non-Rubber Footwear, and US - Tobacco, para 118.
21. See for example, US - Superfund; EEC - Parts and Components; Thai - Cigarettes, para 84; US - Malt Beverages, para 5.39; US - Non-Rubber Footwear, and US - Tobacco, para 118.
22. See for example, US - Superfund; EEC - Parts and Components; Thai - Cigarettes, para 84; US - Malt Beverages, para 5.39; US - Non-Rubber Footwear, and US - Tobacco, para 118.
23. See for example, US - Superfund; EEC - Parts and Components; Thai - Cigarettes, para 84; US - Malt Beverages, para 5.39; US - Non-Rubber Footwear, and US - Tobacco, para 118.
24. See for example, US - Superfund; EEC - Parts and Components; Thai - Cigarettes, para 84; US - Malt Beverages, para 5.39; US - Non-Rubber Footwear, and US - Tobacco, para 118.
25. See for example, US - Superfund; EEC - Parts and Components; Thai - Cigarettes, para 84; US - Malt Beverages, para 5.39; US - Non-Rubber Footwear, and US - Tobacco, para 118.
26. Article III:2 provided for non-discriminatory internal taxes of imported and domestic products.
27. Thai - Cigarettes, paras 84-6. It should be noted that this case dealt with the distinction both in the contexts of the Thai Protocol of Accession and challenge to legislation per se.
28. Cf. paragraph 3 of the preliminary notes to GATT 1994, which according to Professor Jackson may be the only 'grandfather right' expressly recognized under the WTO Agreements. See John H. Jackson, The World Trading System: Lain and Policy of International Economic Relations 48-9 (Cambridge, MA: MIT Press 1997).
29. See for example, Panel Reports, India - Patent I; Argentina - Textiles; India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, Complaint by the European Communities ('India - Patent II') WT/DS79/R (24 August 1998); Canada - Aircraft; Turkey - Restrictions on Imports of Textile and Clothing Products ('Turkey - Textile') WT/DS34/R (31 May 1999); US - Section 301; United States - Anti-Dumping Act of 1916, Complaint by the European Communities ('US - Anti-Dumping Act I') WT/DS136/R (31 March 2000); United States - Anti-Dumping Act of 1916, Complaint by Japan ('US - Anti-Dumping Act II') WT/DS162/R (29 May 2000); United States - Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan ('US - Hot-Rolled Steel') WT/DS184/R (28 February 2001); United States - Measures Treating Exports Restraints as Subsidies ('US - Exports Restraints') WT/DS194/R (29 June 2001); and United States - Section 211 Omnibus Appropriations Act of 1998 WT/DS176/R (6 August 2001); and Appellate Body Reports, US - Anti-Dumping Act; and United States - Section 211 Omnibus Appropriations Act of 1998 WT/DS176/AB/ R (2 January 2002).
30. See for example, Panel Reports, India - Patent I; Argentina - Textiles; India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, Complaint by the European Communities ('India - Patent II') WT/DS79/R (24 August 1998); Canada - Aircraft; Turkey - Restrictions on Imports of Textile and Clothing Products ('Turkey - Textile') WT/DS34/R (31 May 1999); US - Section 301; United States - Anti-Dumping Act of 1916, Complaint by the European Communities ('US - Anti-Dumping Act I') WT/DS136/R (31 March 2000); United States - Anti-Dumping Act of 1916, Complaint by Japan ('US - Anti-Dumping Act II') WT/DS162/R (29 May 2000); United States - Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan ('US - Hot-Rolled Steel') WT/DS184/R (28 February 2001); United States - Measures Treating Exports Restraints as Subsidies ('US - Exports Restraints') WT/DS194/R (29 June 2001); and United States - Section 211 Omnibus Appropriations Act of 1998 WT/DS176/R (6 August 2001); and Appellate Body Reports, US - Anti-Dumping Act; and United States - Section 211 Omnibus Appropriations Act of 1998 WT/DS176/AB/ R (2 January 2002).
31. See for example, Panel Reports, India - Patent I; Argentina - Textiles; India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, Complaint by the European Communities ('India - Patent II') WT/DS79/R (24 August 1998); Canada - Aircraft; Turkey - Restrictions on Imports of Textile and Clothing Products ('Turkey - Textile') WT/DS34/R (31 May 1999); US - Section 301; United States - Anti-Dumping Act of 1916, Complaint by the European Communities ('US - Anti-Dumping Act I') WT/DS136/R (31 March 2000); United States - Anti-Dumping Act of 1916, Complaint by Japan ('US - Anti-Dumping Act II') WT/DS162/R (29 May 2000); United States - Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan ('US - Hot-Rolled Steel') WT/DS184/R (28 February 2001); United States - Measures Treating Exports Restraints as Subsidies ('US - Exports Restraints') WT/DS194/R (29 June 2001); and United States - Section 211 Omnibus Appropriations Act of 1998 WT/DS176/R (6 August 2001); and Appellate Body Reports, US - Anti-Dumping Act; and United States - Section 211 Omnibus Appropriations Act of 1998 WT/DS176/AB/ R (2 January 2002).
32. See for example, Panel Reports, India - Patent I; ZArgentina - Textiles; India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, Complaint by the European Communities ('India - Patent II') WT/DS79/R (24 August 1998); Canada - Aircraft; Turkey - Restrictions on Imports of Textile and Clothing Products ('Turkey - Textile') WT/DS34/R (31 May 1999); US - Section 301; United States - Anti-Dumping Act of 1916, Complaint by the European Communities ('US - Anti-Dumping Act I') WT/DS136/R (31 March 2000); United States - Anti-Dumping Act of 1916, Complaint by Japan ('US - Anti-Dumping Act II') WT/DS162/R (29 May 2000); United States - Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan ('US - Hot-Rolled Steel') WT/DS184/R (28 February 2001); United States - Measures Treating Exports Restraints as Subsidies ('US - Exports Restraints') WT/DS194/R (29 June 2001); and United States - Section 211 Omnibus Appropriations Act of 1998 WT/DS176/R (6 August 2001); and Appellate Body Reports, US - Anti-Dumping Act; and United States - Section 211 Omnibus Appropriations Act of 1998 WT/DS176/AB/ R (2 January 2002).
33. See for example, Panel Reports, India - Patent I; Argentina - Textiles; India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, Complaint by the European Communities ('India - Patent II') WT/DS79/R (24 August 1998); Canada - Aircraft; Turkey - Restrictions on Imports of Textile and Clothing Products ('Turkey - Textile') WT/DS34/R (31 May 1999); US - Section 301; United States - Anti-Dumping Act of 1916, Complaint by the European Communities ('US - Anti-Dumping Act I') WT/DS136/R (31 March 2000); United States - Anti-Dumping Act of 1916, Complaint by Japan ('US - Anti-Dumping Act II') WT/DS162/R (29 May 2000); United States - Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan ('US - Hot-Rolled Steel') WT/DS184/R (28 February 2001); United States - Measures Treating Exports Restraints as Subsidies ('US - Exports Restraints') WT/DS194/R (29 June 2001); and United States - Section 211 Omnibus Appropriations Act of 1998 WT/DS176/R (6 August 2001); and Appellate Body Reports, US - Anti-Dumping Act; and United States - Section 211 Omnibus Appropriations Act of 1998 WT/DS176/AB/ R (2 January 2002).
34. See for example, Panel Reports, India - Patent I; Argentina - Textiles; India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, Complaint by the European Communities ('India - Patent II') WT/DS79/R (24 August 1998); Canada - Aircraft; Turkey - Restrictions on Imports of Textile and Clothing Products ('Turkey - Textile') WT/DS34/R (31 May 1999); US - Section 301; United States - Anti-Dumping Act of 1916, Complaint by the European Communities ('US - Anti-Dumping Act I') WT/DS136/R (31 March 2000); United States - Anti-Dumping Act of 1916, Complaint by Japan ('US - Anti-Dumping Act II') WT/DS162/R (29 May 2000); United States - Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan ('US - Hot-Rolled Steel') WT/DS184/R (28 February 2001); United States - Measures Treating Exports Restraints as Subsidies ('US - Exports Restraints') WT/DS194/R (29 June 2001); and United States - Section 211 Omnibus Appropriations Act of 1998 WT/DS176/R (6 August 2001); and Appellate Body Reports, US - Anti-Dumping Act; and United States - Section 211 Omnibus Appropriations Act of 1998 WT/DS176/AB/ R (2 January 2002).
35. See for example, Panel Reports, India - Patent I; Argentina - Textiles; India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, Complaint by the European Communities ('India - Patent II') WT/DS79/R (24 August 1998); Canada - Aircraft; Turkey - Restrictions on Imports of Textile and Clothing Products ('Turkey - Textile') WT/DS34/R (31 May 1999); US - Section 301; United States - Anti-Dumping Act of 1916, Complaint by the European Communities ('US - Anti-Dumping Act I') WT/DS136/R (31 March 2000); United States - Anti-Dumping Act of 1916, Complaint by Japan ('US - Anti-Dumping Act II') WT/DS162/R (29 May 2000); United States - Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan ('US - Hot-Rolled Steel') WT/DS184/R (28 February 2001); United States - Measures Treating Exports Restraints as Subsidies ('US - Exports Restraints') WT/DS194/R (29 June 2001); and United States - Section 211 Omnibus Appropriations Act of 1998 WT/DS176/R (6 August 2001); and Appellate Body Reports, US - Anti-Dumping Act; and United States - Section 211 Omnibus Appropriations Act of 1998 WT/DS176/AB/ R (2 January 2002).
36. See for example, Panel Reports, India - Patent I; Argentina - Textiles; India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, Complaint by the European Communities ('India - Patent II') WT/DS79/R (24 August 1998); Canada - Aircraft; Turkey - Restrictions on Imports of Textile and Clothing Products ('Turkey - Textile') WT/DS34/R (31 May 1999); US - Section 301; United States - Anti-Dumping Act of 1916, Complaint by the European Communities ('US - Anti-Dumping Act I') WT/DS136/R (31 March 2000); United States - Anti-Dumping Act of 1916, Complaint by Japan ('US - Anti-Dumping Act II') WT/DS162/R (29 May 2000); United States - Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan ('US - Hot-Rolled Steel') WT/DS184/R (28 February 2001); United States - Measures Treating Exports Restraints as Subsidies ('US - Exports Restraints') WT/DS194/R (29 June 2001); and United States - Section 211 Omnibus Appropriations Act of 1998 WT/DS176/R (6 August 2001); and Appellate Body Reports, US - Anti-Dumping Act; and United States - Section 211 Omnibus Appropriations Act of 1998 WT/DS176/AB/ R (2 January 2002).
37. See for example, Panel Reports, India - Patent I; Argentina - Textiles; India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, Complaint by the European Communities ('India - Patent II') WT/DS79/R (24 August 1998); Canada - Aircraft; Turkey - Restrictions on Imports of Textile and Clothing Products ('Turkey - Textile') WT/DS34/R (31 May 1999); US - Section 301; United States - Anti-Dumping Act of 1916, Complaint by the European Communities ('US - Anti-Dumping Act I') WT/DS136/R (31 March 2000); United States - Anti-Dumping Act of 1916, Complaint by Japan ('US - Anti-Dumping Act II') WT/DS162/R (29 May 2000); United States - Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan ('US - Hot-Rolled Steel') WT/DS184/R (28 February 2001); United States - Measures Treating Exports Restraints as Subsidies ('US - Exports Restraints') WT/DS194/R (29 June 2001); and United States - Section 211 Omnibus Appropriations Act of 1998 WT/DS176/R (6 August 2001); and Appellate Body Reports, US - Anti-Dumping Act; and United States - Section 211 Omnibus Appropriations Act of 1998 WT/DS176/AB/ R (2 January 2002).
38. See for example, Panel Reports, India - Patent I; Argentina - Textiles; India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, Complaint by the European Communities ('India - Patent II') WT/DS79/R (24 August 1998); Canada - Aircraft; Turkey - Restrictions on Imports of Textile and Clothing Products ('Turkey - Textile') WT/DS34/R (31 May 1999); US - Section 301; United States - Anti-Dumping Act of 1916, Complaint by the European Communities ('US - Anti-Dumping Act I') WT/DS136/R (31 March 2000); United States - Anti-Dumping Act of 1916, Complaint by Japan ('US - Anti-Dumping Act II') WT/DS162/R (29 May 2000); United States - Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan ('US - Hot-Rolled Steel') WT/DS184/R (28 February 2001); United States - Measures Treating Exports Restraints as Subsidies ('US - Exports Restraints') WT/DS194/R (29 June 2001); and United States - Section 211 Omnibus Appropriations Act of 1998 WT/DS176/R (6 August 2001); and Appellate Body Reports, US - Anti-Dumping Act; and United States - Section 211 Omnibus Appropriations Act of 1998 WT/DS176/AB/ R (2 January 2002).
39. See for example, Panel Reports, India - Patent I; Argentina - Textiles; India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, Complaint by the European Communities ('India - Patent II') WT/DS79/R (24 August 1998); Canada - Aircraft; Turkey - Restrictions on Imports of Textile and Clothing Products ('Turkey - Textile') WT/DS34/R (31 May 1999); US - Section 301; United States - Anti-Dumping Act of 1916, Complaint by the European Communities ('US - Anti-Dumping Act I') WT/DS136/R (31 March 2000); United States - Anti-Dumping Act of 1916, Complaint by Japan ('US - Anti-Dumping Act II') WT/DS162/R (29 May 2000); United States - Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan ('US - Hot-Rolled Steel') WT/DS184/R (28 February 2001); United States - Measures Treating Exports Restraints as Subsidies ('US - Exports Restraints') WT/DS194/R (29 June 2001); and United States - Section 211 Omnibus Appropriations Act of 1998 WT/DS176/R (6 August 2001); and Appellate Body Reports, US - Anti-Dumping Act; and United States - Section 211 Omnibus Appropriations Act of 1998 WT/DS176/AB/ R (2 January 2002).
40. See for example, Panel Reports, India - Patent I; Argentina - Textiles; India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, Complaint by the European Communities ('India - Patent II') WT/DS79/R (24 August 1998); Canada - Aircraft; Turkey - Restrictions on Imports of Textile and Clothing Products ('Turkey - Textile') WT/DS34/R (31 May 1999); US - Section 301; United States - Anti-Dumping Act of 1916, Complaint by the European Communities ('US - Anti-Dumping Act I') WT/DS136/R (31 March 2000); United States - Anti-Dumping Act of 1916, Complaint by Japan ('US - Anti-Dumping Act II') WT/DS162/R (29 May 2000); United States - Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan ('US - Hot-Rolled Steel') WT/DS184/R (28 February 2001); United States - Measures Treating Exports Restraints as Subsidies ('US - Exports Restraints') WT/DS194/R (29 June 2001); and United States - Section 211 Omnibus Appropriations Act of 1998 WT/DS176/R (6 August 2001); and Appellate Body Reports, US - Anti-Dumping Act; and United States - Section 211 Omnibus Appropriations Act of 1998 WT/DS176/AB/ R (2 January 2002).
41. See for example, Panel Reports, India - Patent I; Argentina - Textiles; India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, Complaint by the European Communities ('India - Patent II') WT/DS79/R (24 August 1998); Canada - Aircraft; Turkey - Restrictions on Imports of Textile and Clothing Products ('Turkey - Textile') WT/DS34/R (31 May 1999); US - Section 301; United States - Anti-Dumping Act of 1916, Complaint by the European Communities ('US - Anti-Dumping Act I') WT/DS136/R (31 March 2000); United States - Anti-Dumping Act of 1916, Complaint by Japan ('US - Anti-Dumping Act II') WT/DS162/R (29 May 2000); United States - Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan ('US - Hot-Rolled Steel') WT/DS184/R (28 February 2001); United States - Measures Treating Exports Restraints as Subsidies ('US - Exports Restraints') WT/DS194/R (29 June 2001); and United States - Section 211 Omnibus Appropriations Act of 1998 WT/DS176/R (6 August 2001); and Appellate Body Reports, US - Anti-Dumping Act; and United States - Section 211 Omnibus Appropriations Act of 1998 WT/DS176/AB/ R (2 January 2002).
42. Throughout this paper the Marrakesh Agreement Establishing the World Trade Organization, without its annexes, will be referred to as the 'WTO Agreement' and the WTO Agreement together with the annexed agreements will collectively be referred to as the 'WTO Agreements'.
43. The EC specifically referred to Article 3.2 which provides that the 'dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading system'.
44. See generally on the PPA John H. Jackson, World Trade and the Law of GATT 108-17 (Indianapolis: Bobbs-Merrill 1969); Jackson, above n 17 at 39-41; Frieder Roesler, 'The Provisional Application of the GATT', 19(3) Journal of World Trade Law 289 (1985); and Marc Hansen and Edwin Vermulst, 'The GATT Protocol of Provisional Application: A Dying Grandfather?', 27(2) Columbia Journal of Transnational Law 263 (1989).
45. See generally on the PPA John H. Jackson, World Trade and the Law of GATT 108-17 (Indianapolis: Bobbs-Merrill 1969); Jackson, above n 17 at 39-41; Frieder Roesler, 'The Provisional Application of the GATT', 19(3) Journal of World Trade Law 289 (1985); and Marc Hansen and Edwin Vermulst, 'The GATT Protocol of Provisional Application: A Dying Grandfather?', 27(2) Columbia Journal of Transnational Law 263 (1989).
46. See generally on the PPA John H. Jackson, World Trade and the Law of GATT 108-17 (Indianapolis: Bobbs-Merrill 1969); Jackson, above n 17 at 39-41; Frieder Roesler, 'The Provisional Application of the GATT', 19(3) Journal of World Trade Law 289 (1985); and Marc Hansen and Edwin Vermulst, 'The GATT Protocol of Provisional Application: A Dying Grandfather?', 27(2) Columbia Journal of Transnational Law 263 (1989).
47. See generally on the PPA John H. Jackson, World Trade and the Law of GATT 108-17 (Indianapolis: Bobbs-Merrill 1969); Jackson, above n 17 at 39-41; Frieder Roesler, 'The Provisional Application of the GATT', 19(3) Journal of World Trade Law 289 (1985); and Marc Hansen and Edwin Vermulst, 'The GATT Protocol of Provisional Application: A Dying Grandfather?', 27(2) Columbia Journal of Transnational Law 263 (1989).
48. Working Party Report, Notifications of Existing Measures and Procedural Questions ('Existing Measures'), adopted 10 August 1949, II BISD 49, para 99.
49. See Belgian Family Allowances, adopted 7 November 1952, BISD IS/59, para 6; United States Manufacturing Clause, adopted 15/16 May 1984, BISD 31S/74, para 35; Canada - Import, Distribution and Sale of Alcoholic Drinks by Canadian Provincial Marketing Agencies ('Canada - Alcoholic Drinks I'), adopted 22 March 1988, BISD 35S/37, para 4.28; Norway - Restrictions on Imports of Apples and Pears ('Norway - Apples'), adopted 22 June 1989, paras 5.6-5.7; Thai - Cigarettes, para 83; Canada, Import, Distribution and Sale of Certain Alcoholic Drinks by Provincial Marketing Authorities ('Canada - Alcoholic Drinks II'), adopted 18 February 1992, DS17/R, para 5.9; US -Malt Beverages, para 5.44. It is to be noted that a few early working party reports noted disagreement among delegations with regard to this interpretation. See e.g. German Import Restrictions I, para 14; and Second Working Party Report, Import Restrictions Maintained by the Federal Republic of Germany ('German Import Restrictions II'), adopted 2 May 1958, BISD 7S/99, paras 2, 14, 22.
50. See Belgian Family Allowances, adopted 7 November 1952, BISD IS/59, para 6; United States Manufacturing Clause, adopted 15/16 May 1984, BISD 31S/74, para 35; Canada - Import, Distribution and Sale of Alcoholic Drinks by Canadian Provincial Marketing Agencies ('Canada - Alcoholic Drinks I'), adopted 22 March 1988, BISD 35S/37, para 4.28; Norway - Restrictions on Imports of Apples and Pears ('Norway - Apples'), adopted 22 June 1989, paras 5.6-5.7; Thai - Cigarettes, para 83; Canada, Import, Distribution and Sale of Certain Alcoholic Drinks by Provincial Marketing Authorities ('Canada - Alcoholic Drinks II'), adopted 18 February 1992, DS17/R, para 5.9; US -Malt Beverages, para 5.44. It is to be noted that a few early working party reports noted disagreement among delegations with regard to this interpretation. See e.g. German Import Restrictions I, para 14; and Second Working Party Report, Import Restrictions Maintained by the Federal Republic of Germany ('German Import Restrictions II'), adopted 2 May 1958, BISD 7S/99, paras 2, 14, 22.
51. See Belgian Family Allowances, adopted 7 November 1952, BISD IS/59, para 6; United States Manufacturing Clause, adopted 15/16 May 1984, BISD 31S/74, para 35; Canada - Import, Distribution and Sale of Alcoholic Drinks by Canadian Provincial Marketing Agencies ('Canada - Alcoholic Drinks I'), adopted 22 March 1988, BISD 35S/37, para 4.28; Norway - Restrictions on Imports of Apples and Pears ('Norway - Apples'), adopted 22 June 1989, paras 5.6-5.7; Thai - Cigarettes, para 83; Canada, Import, Distribution and Sale of Certain Alcoholic Drinks by Provincial Marketing Authorities ('Canada - Alcoholic Drinks II'), adopted 18 February 1992, DS17/R, para 5.9; US -Malt Beverages, para 5.44. It is to be noted that a few early working party reports noted disagreement among delegations with regard to this interpretation. See e.g. German Import Restrictions I, para 14; and Second Working Party Report, Import Restrictions Maintained by the Federal Republic of Germany ('German Import Restrictions II'), adopted 2 May 1958, BISD 7S/99, paras 2, 14, 22.
52. See Belgian Family Allowances, adopted 7 November 1952, BISD IS/59, para 6; United States Manufacturing Clause, adopted 15/16 May 1984, BISD 31S/74, para 35; Canada - Import, Distribution and Sale of Alcoholic Drinks by Canadian Provincial Marketing Agencies ('Canada - Alcoholic Drinks I'), adopted 22 March 1988, BISD 35S/37, para 4.28; Norway - Restrictions on Imports of Apples and Pears ('Norway - Apples'), adopted 22 June 1989, paras 5.6-5.7; Thai - Cigarettes, para 83; Canada, Import, Distribution and Sale of Certain Alcoholic Drinks by Provincial Marketing Authorities ('Canada - Alcoholic Drinks II'), adopted 18 February 1992, DS17/R, para 5.9; US -Malt Beverages, para 5.44. It is to be noted that a few early working party reports noted disagreement among delegations with regard to this interpretation. See e.g. German Import Restrictions I, para 14; and Second Working Party Report, Import Restrictions Maintained by the Federal Republic of Germany ('German Import Restrictions II'), adopted 2 May 1958, BISD 7S/99, paras 2, 14, 22.
53. See Belgian Family Allowances, adopted 7 November 1952, BISD IS/59, para 6; United States Manufacturing Clause, adopted 15/16 May 1984, BISD 31S/74, para 35; Canada - Import, Distribution and Sale of Alcoholic Drinks by Canadian Provincial Marketing Agencies ('Canada - Alcoholic Drinks I'), adopted 22 March 1988, BISD 35S/37, para 4.28; Norway - Restrictions on Imports of Apples and Pears ('Norway - Apples'), adopted 22 June 1989, paras 5.6-5.7; Thai - Cigarettes, para 83; Canada, Import, Distribution and Sale of Certain Alcoholic Drinks by Provincial Marketing Authorities ('Canada - Alcoholic Drinks II'), adopted 18 February 1992, DS17/R, para 5.9; US -Malt Beverages, para 5.44. It is to be noted that a few early working party reports noted disagreement among delegations with regard to this interpretation. See e.g. German Import Restrictions I, para 14; and Second Working Party Report, Import Restrictions Maintained by the Federal Republic of Germany ('German Import Restrictions II'), adopted 2 May 1958, BISD 7S/99, paras 2, 14, 22.
54. See Belgian Family Allowances, adopted 7 November 1952, BISD IS/59, para 6; United States Manufacturing Clause, adopted 15/16 May 1984, BISD 31S/74, para 35; Canada - Import, Distribution and Sale of Alcoholic Drinks by Canadian Provincial Marketing Agencies ('Canada - Alcoholic Drinks I'), adopted 22 March 1988, BISD 35S/37, para 4.28; Norway - Restrictions on Imports of Apples and Pears ('Norway - Apples'), adopted 22 June 1989, paras 5.6-5.7; Thai - Cigarettes, para 83; Canada, Import, Distribution and Sale of Certain Alcoholic Drinks by Provincial Marketing Authorities ('Canada - Alcoholic Drinks II'), adopted 18 February 1992, DS17/R, para 5.9; US -Malt Beverages, para 5.44. It is to be noted that a few early working party reports noted disagreement among delegations with regard to this interpretation. See e.g. German Import Restrictions I, para 14; and Second Working Party Report, Import Restrictions Maintained by the Federal Republic of Germany ('German Import Restrictions II'), adopted 2 May 1958, BISD 7S/99, paras 2, 14, 22.
55. See Belgian Family Allowances, adopted 7 November 1952, BISD IS/59, para 6; United States Manufacturing Clause, adopted 15/16 May 1984, BISD 31S/74, para 35; Canada - Import, Distribution and Sale of Alcoholic Drinks by Canadian Provincial Marketing Agencies ('Canada - Alcoholic Drinks I'), adopted 22 March 1988, BISD 35S/37, para 4.28; Norway - Restrictions on Imports of Apples and Pears ('Norway - Apples'), adopted 22 June 1989, paras 5.6-5.7; Thai - Cigarettes, para 83; Canada, Import, Distribution and Sale of Certain Alcoholic Drinks by Provincial Marketing Authorities ('Canada - Alcoholic Drinks II'), adopted 18 February 1992, DS17/R, para 5.9; US -Malt Beverages, para 5.44. It is to be noted that a few early working party reports noted disagreement among delegations with regard to this interpretation. See e.g. German Import Restrictions I, para 14; and Second Working Party Report, Import Restrictions Maintained by the Federal Republic of Germany ('German Import Restrictions II'), adopted 2 May 1958, BISD 7S/99, paras 2, 14, 22.
56. See Belgian Family Allowances, adopted 7 November 1952, BISD IS/59, para 6; United States Manufacturing Clause, adopted 15/16 May 1984, BISD 31S/74, para 35; Canada - Import, Distribution and Sale of Alcoholic Drinks by Canadian Provincial Marketing Agencies ('Canada - Alcoholic Drinks I'), adopted 22 March 1988, BISD 35S/37, para 4.28; Norway - Restrictions on Imports of Apples and Pears ('Norway - Apples'), adopted 22 June 1989, paras 5.6-5.7; Thai - Cigarettes, para 83; Canada, Import, Distribution and Sale of Certain Alcoholic Drinks by Provincial Marketing Authorities ('Canada - Alcoholic Drinks II'), adopted 18 February 1992, DS17/R, para 5.9; US -Malt Beverages, para 5.44. It is to be noted that a few early working party reports noted disagreement among delegations with regard to this interpretation. See e.g. German Import Restrictions I, para 14; and Second Working Party Report, Import Restrictions Maintained by the Federal Republic of Germany ('German Import Restrictions II'), adopted 2 May 1958, BISD 7S/99, paras 2, 14, 22.
57. See Belgian Family Allowances, adopted 7 November 1952, BISD IS/59, para 6; United States Manufacturing Clause, adopted 15/16 May 1984, BISD 31S/74, para 35; Canada - Import, Distribution and Sale of Alcoholic Drinks by Canadian Provincial Marketing Agencies ('Canada - Alcoholic Drinks I'), adopted 22 March 1988, BISD 35S/37, para 4.28; Norway - Restrictions on Imports of Apples and Pears ('Norway - Apples'), adopted 22 June 1989, paras 5.6-5.7; Thai - Cigarettes, para 83; Canada, Import, Distribution and Sale of Certain Alcoholic Drinks by Provincial Marketing Authorities ('Canada - Alcoholic Drinks II'), adopted 18 February 1992, DS17/R, para 5.9; US -Malt Beverages, para 5.44. It is to be noted that a few early working party reports noted disagreement among delegations with regard to this interpretation. See e.g. German Import Restrictions I, para 14; and Second Working Party Report, Import Restrictions Maintained by the Federal Republic of Germany ('German Import Restrictions II'), adopted 2 May 1958, BISD 7S/99, paras 2, 14, 22.
58. Although Article I was contained in Part I, according to Ad Article I, the obligation at issue, was subject to the grandfather clause.
59. Belgian Family Allowances, para 7 (italics added).
60. I b i d.
61. An earlier working party report concluded that the relevant national law was mandatory solely on the basis that the government concerned indicated that any change in the rates of tax applied under that law could not be effected by the executive, but would require amending legislation - Brazilian Internal Taxes, adopted 30 June 1949, II BISD 181, para 5.
62. German Import Restrictions II, paras 19-22.
63. See generally German Interests in Polish Upper Silesia, PCIJ Ser A No 7 (1926) at 19; and the Appellate Body Report, India - Patent I WT/DS50/AB/R (19 December 1997), paras 65-7.
64. See generally German Interests in Polish Upper Silesia, PCIJ Ser A No 7 (1926) at 19; and the Appellate Body Report, India - Patent I WT/DS50/AB/R (19 December 1997), paras 65-7.
65. Belgian Family Allowance, para 7.
66. Norway - Apples, para 5.10.
67. See Thai - Cigarettes discussed in the Introduction of this Paper.
68. Canada - Alcoholic Drinks II, para 5.9.
69. US - Malt Beverages, para 5.48. See also Jackson, above n 21 at 110-17.
70. US - Malt Beverages, para 5.48. See also Jackson, above n 21 at 110-17.
71. The case is Brazilian Internal Taxes (see para 5).
72. See above n 27.
73. LaGrand case (Germany v United States of America), Judgment of 27 June 2001, http://www.icj-cij.org/icjwww/idocket/igus/igusjudgment/igus-ijudgment-toc.htm (visited 23 January 2002), para 125.
74. See Draft articles on Responsibility of States for internationally wrongful act, Article 12 and the commentaries to that Article adopted by the International Law Commission in 2001, http://www.un.org/law/ilc/texts/State-responsibility/responsibilityfra.htm (visited 23 January 2002).
75. States were very wary to bring cases before the PCIJ or the ICJ against national legislation per se, This was partly due to the uncertainty that supposedly exists regarding the likelihood of success in such cases. To illustrate the point, a treaty provision may make it unlawful to do something, which may be permitted or required under the national legislation of a state party. Now, if the state concerned has not applied the law and consequently there has been no 'injury', can it be held that the law by itself violated the treaty provision? Given that the International Court may 'pronounce judgment only in connection with concrete cases where there exists at the time of the adjudication an actual controversy' (Northern Cameroons ICJ Rep 15 (1962) at 33-4); can it be argued that in the absence of specific application of the law there is no 'dispute' (cf. Article 38 of the Statute of the International Court of Justice) that is 'ripe' for judicial consideration? See the Headquarters Agreement case ICJ Rep 12 (1988), in which the US adopted a statute providing for the closure of the office of the PLO Mission to the United Nations in New York in contravention of the US treaty obligations towards the United Nations under the Headquarters Agreement of 1947; but the UN Secretary-General took the view that the mere adoption of the legislation would not violate the Agreement if assurances were given that the PLO Mission would not be closed in pursuance of the statute. See Ian Brownlie, Principles of Public International Law (Oxford: Oxford University Press 1998) at 35; Sir Gerald Fitzmaurice 'The General Principles of International Law Considered from the Standpoint of the Rule of Law' 92 Recueil des Cours (1957, II) at 89; and Lord McNair, The Law of Treaties (Oxford: Clarendon Press 1961) at 100, for the proposition that a state does not commit a direct breach of international law by merely failing to ensure the conformity of its internal laws with its international obligations, and a breach occurs only if the state concerned fails to carry out its obligations on a specific occasion. However, the better view seems to be that depending on the nature of the relevant obligation, occasionally such failure may constitute a breach. The question really is whether the particular international obligation at issue requires the possession or non-possession of certain laws, or the performance or non-performance of certain acts, or some form of combination of both. See Sir Robert Jennings and Sir Arthur Watts, Oppenheim's International Laze Vol. I (Essex: Longman 1992) at 85-6. See Ian Brownlie, Principles of Public International Law (Oxford: Oxford University Press 1998) at 35; Sir Gerald Fitzmaurice 'The General Principles of International Law Considered from the Standpoint of the Rule of Law' 92 Recueil des Cours (1957, II) at 89; and Lord McNair, The Law of Treaties (Oxford: Clarendon Press 1961) at 100, for the proposition that a state does not commit a direct breach of international law by merely failing to ensure the conformity of its internal laws with its international obligations, and a breach occurs only if the state concerned fails to carry out its obligations on a specific occasion. However, the better view seems to be that depending on the nature of the relevant obligation, occasionally such failure may constitute a breach. The question really is whether the particular international obligation at issue requires the possession or non-possession of certain laws, or the performance or non-performance of certain acts, or some form of combination of both. See Sir Robert Jennings and Sir Arthur Watts, Oppenheim's International Laze Vol. I (Essex: Longman 1992) at 85-6. See also Antonio Cassese, International Law (Oxford: Oxford University Press 2001) at 167-8, who argued that one of the reasons for the lack of cases of complaints against national legislation is that states are only interested in the final outcome, namely, compliance or non-compliance with an international obligation; and do not usually concern themselves with factors like deficiencies or flaws in internal laws that lead to violation.
76. States were very wary to bring cases before the PCIJ or the ICJ against national legislation per se, This was partly due to the uncertainty that supposedly exists regarding the likelihood of success in such cases. To illustrate the point, a treaty provision may make it unlawful to do something, which may be permitted or required under the national legislation of a state party. Now, if the state concerned has not applied the law and consequently there has been no 'injury', can it be held that the law by itself violated the treaty provision? Given that the International Court may 'pronounce judgment only in connection with concrete cases where there exists at the time of the adjudication an actual controversy' (Northern Cameroons ICJ Rep 15 (1962) at 33-4); can it be argued that in the absence of specific application of the law there is no 'dispute' (cf. Article 38 of the Statute of the International Court of Justice) that is 'ripe' for judicial consideration? See the Headquarters Agreement case ICJ Rep 12 (1988), in which the US adopted a statute providing for the closure of the office of the PLO Mission to the United Nations in New York in contravention of the US treaty obligations towards the United Nations under the Headquarters Agreement of 1947; but the UN Secretary-General took the view that the mere adoption of the legislation would not violate the Agreement if assurances were given that the PLO Mission would not be closed in pursuance of the statute. See Ian Brownlie, Principles of Public International Law (Oxford: Oxford University Press 1998) at 35; Sir Gerald Fitzmaurice 'The General Principles of International Law Considered from the Standpoint of the Rule of Law' 92 Recueil des Cours (1957, II) at 89; and Lord McNair, The Law of Treaties (Oxford: Clarendon Press 1961) at 100, for the proposition that a state does not commit a direct breach of international law by merely failing to ensure the conformity of its internal laws with its international obligations, and a breach occurs only if the state concerned fails to carry out its obligations on a specific occasion. However, the better view seems to be that depending on the nature of the relevant obligation, occasionally such failure may constitute a breach. The question really is whether the particular international obligation at issue requires the possession or non-possession of certain laws, or the performance or non-performance of certain acts, or some form of combination of both. See Sir Robert Jennings and Sir Arthur Watts, Oppenheim's International Laze Vol. I (Essex: Longman 1992) at 85-6. See Ian Brownlie, Principles of Public International Law (Oxford: Oxford University Press 1998) at 35; Sir Gerald Fitzmaurice 'The General Principles of International Law Considered from the Standpoint of the Rule of Law' 92 Recueil des Cours (1957, II) at 89; and Lord McNair, The Law of Treaties (Oxford: Clarendon Press 1961) at 100, for the proposition that a state does not commit a direct breach of international law by merely failing to ensure the conformity of its internal laws with its international obligations, and a breach occurs only if the state concerned fails to carry out its obligations on a specific occasion. However, the better view seems to be that depending on the nature of the relevant obligation, occasionally such failure may constitute a breach. The question really is whether the particular international obligation at issue requires the possession or non-possession of certain laws, or the performance or non-performance of certain acts, or some form of combination of both. See Sir Robert Jennings and Sir Arthur Watts, Oppenheim's International Laze Vol. I (Essex: Longman 1992) at 85-6. See also Antonio Cassese, International Law (Oxford: Oxford University Press 2001) at 167-8, who argued that one of the reasons for the lack of cases of complaints against national legislation is that states are only interested in the final outcome, namely, compliance or non-compliance with an international obligation; and do not usually concern themselves with factors like deficiencies or flaws in internal laws that lead to violation.
77. States were very wary to bring cases before the PCIJ or the ICJ against national legislation per se, This was partly due to the uncertainty that supposedly exists regarding the likelihood of success in such cases. To illustrate the point, a treaty provision may make it unlawful to do something, which may be permitted or required under the national legislation of a state party. Now, if the state concerned has not applied the law and consequently there has been no 'injury', can it be held that the law by itself violated the treaty provision? Given that the International Court may 'pronounce judgment only in connection with concrete cases where there exists at the time of the adjudication an actual controversy' (Northern Cameroons ICJ Rep 15 (1962) at 33-4); can it be argued that in the absence of specific application of the law there is no 'dispute' (cf. Article 38 of the Statute of the International Court of Justice) that is 'ripe' for judicial consideration? See the Headquarters Agreement case ICJ Rep 12 (1988), in which the US adopted a statute providing for the closure of the office of the PLO Mission to the United Nations in New York in contravention of the US treaty obligations towards the United Nations under the Headquarters Agreement of 1947; but the UN Secretary-General took the view that the mere adoption of the legislation would not violate the Agreement if assurances were given that the PLO Mission would not be closed in pursuance of the statute. See Ian Brownlie, Principles of Public International Law (Oxford: Oxford University Press 1998) at 35; Sir Gerald Fitzmaurice 'The General Principles of International Law Considered from the Standpoint of the Rule of Law' 92 Recueil des Cours (1957, II) at 89; and Lord McNair, The Law of Treaties (Oxford: Clarendon Press 1961) at 100, for the proposition that a state does not commit a direct breach of international law by merely failing to ensure the conformity of its internal laws with its international obligations, and a breach occurs only if the state concerned fails to carry out its obligations on a specific occasion. However, the better view seems to be that depending on the nature of the relevant obligation, occasionally such failure may constitute a breach. The question really is whether the particular international obligation at issue requires the possession or non-possession of certain laws, or the performance or non-performance of certain acts, or some form of combination of both. See Sir Robert Jennings and Sir Arthur Watts, Oppenheim's International Laze Vol. I (Essex: Longman 1992) at 85-6. See Ian Brownlie, Principles of Public International Law (Oxford: Oxford University Press 1998) at 35; Sir Gerald Fitzmaurice 'The General Principles of International Law Considered from the Standpoint of the Rule of Law' 92 Recueil des Cours (1957, II) at 89; and Lord McNair, The Law of Treaties (Oxford: Clarendon Press 1961) at 100, for the proposition that a state does not commit a direct breach of international law by merely failing to ensure the conformity of its internal laws with its international obligations, and a breach occurs only if the state concerned fails to carry out its obligations on a specific occasion. However, the better view seems to be that depending on the nature of the relevant obligation, occasionally such failure may constitute a breach. The question really is whether the particular international obligation at issue requires the possession or non-possession of certain laws, or the performance or non-performance of certain acts, or some form of combination of both. See Sir Robert Jennings and Sir Arthur Watts, Oppenheim's International Laze Vol. I (Essex: Longman 1992) at 85-6. See also Antonio Cassese, International Law (Oxford: Oxford University Press 2001) at 167-8, who argued that one of the reasons for the lack of cases of complaints against national legislation is that states are only interested in the final outcome, namely, compliance or non-compliance with an international obligation; and do not usually concern themselves with factors like deficiencies or flaws in internal laws that lead to violation.
78. States were very wary to bring cases before the PCIJ or the ICJ against national legislation per se, This was partly due to the uncertainty that supposedly exists regarding the likelihood of success in such cases. To illustrate the point, a treaty provision may make it unlawful to do something, which may be permitted or required under the national legislation of a state party. Now, if the state concerned has not applied the law and consequently there has been no 'injury', can it be held that the law by itself violated the treaty provision? Given that the International Court may 'pronounce judgment only in connection with concrete cases where there exists at the time of the adjudication an actual controversy' (Northern Cameroons ICJ Rep 15 (1962) at 33-4); can it be argued that in the absence of specific application of the law there is no 'dispute' (cf. Article 38 of the Statute of the International Court of Justice) that is 'ripe' for judicial consideration? See the Headquarters Agreement case ICJ Rep 12 (1988), in which the US adopted a statute providing for the closure of the office of the PLO Mission to the United Nations in New York in contravention of the US treaty obligations towards the United Nations under the Headquarters Agreement of 1947; but the UN Secretary-General took the view that the mere adoption of the legislation would not violate the Agreement if assurances were given that the PLO Mission would not be closed in pursuance of the statute. See Ian Brownlie, Principles of Public International Law (Oxford: Oxford University Press 1998) at 35; Sir Gerald Fitzmaurice 'The General Principles of International Law Considered from the Standpoint of the Rule of Law' 92 Recueil des Cours (1957, II) at 89; and Lord McNair, The Law of Treaties (Oxford: Clarendon Press 1961) at 100, for the proposition that a state does not commit a direct breach of international law by merely failing to ensure the conformity of its internal laws with its international obligations, and a breach occurs only if the state concerned fails to carry out its obligations on a specific occasion. However, the better view seems to be that depending on the nature of the relevant obligation, occasionally such failure may constitute a breach. The question really is whether the particular international obligation at issue requires the possession or non-possession of certain laws, or the performance or non-performance of certain acts, or some form of combination of both. See Sir Robert Jennings and Sir Arthur Watts, Oppenheim's International Laze Vol. I (Essex: Longman 1992) at 85-6. See Ian Brownlie, Principles of Public International Law (Oxford: Oxford University Press 1998) at 35; Sir Gerald Fitzmaurice 'The General Principles of International Law Considered from the Standpoint of the Rule of Law' 92 Recueil des Cours (1957, II) at 89; and Lord McNair, The Law of Treaties (Oxford: Clarendon Press 1961) at 100, for the proposition that a state does not commit a direct breach of international law by merely failing to ensure the conformity of its internal laws with its international obligations, and a breach occurs only if the state concerned fails to carry out its obligations on a specific occasion. However, the better view seems to be that depending on the nature of the relevant obligation, occasionally such failure may constitute a breach. The question really is whether the particular international obligation at issue requires the possession or non-possession of certain laws, or the performance or non-performance of certain acts, or some form of combination of both. See Sir Robert Jennings and Sir Arthur Watts, Oppenheim's International Laze Vol. I (Essex: Longman 1992) at 85-6. See also Antonio Cassese, International Law (Oxford: Oxford University Press 2001) at 167-8, who argued that one of the reasons for the lack of cases of complaints against national legislation is that states are only interested in the final outcome, namely, compliance or non-compliance with an international obligation; and do not usually concern themselves with factors like deficiencies or flaws in internal laws that lead to violation.
79. States were very wary to bring cases before the PCIJ or the ICJ against national legislation per se, This was partly due to the uncertainty that supposedly exists regarding the likelihood of success in such cases. To illustrate the point, a treaty provision may make it unlawful to do something, which may be permitted or required under the national legislation of a state party. Now, if the state concerned has not applied the law and consequently there has been no 'injury', can it be held that the law by itself violated the treaty provision? Given that the International Court may 'pronounce judgment only in connection with concrete cases where there exists at the time of the adjudication an actual controversy' (Northern Cameroons ICJ Rep 15 (1962) at 33-4); can it be argued that in the absence of specific application of the law there is no 'dispute' (cf. Article 38 of the Statute of the International Court of Justice) that is 'ripe' for judicial consideration? See the Headquarters Agreement case ICJ Rep 12 (1988), in which the US adopted a statute providing for the closure of the office of the PLO Mission to the United Nations in New York in contravention of the US treaty obligations towards the United Nations under the Headquarters Agreement of 1947; but the UN Secretary-General took the view that the mere adoption of the legislation would not violate the Agreement if assurances were given that the PLO Mission would not be closed in pursuance of the statute. See Ian Brownlie, Principles of Public International Law (Oxford: Oxford University Press 1998) at 35; Sir Gerald Fitzmaurice 'The General Principles of International Law Considered from the Standpoint of the Rule of Law' 92 Recueil des Cours (1957, II) at 89; and Lord McNair, The Law of Treaties (Oxford: Clarendon Press 1961) at 100, for the proposition that a state does not commit a direct breach of international law by merely failing to ensure the conformity of its internal laws with its international obligations, and a breach occurs only if the state concerned fails to carry out its obligations on a specific occasion. However, the better view seems to be that depending on the nature of the relevant obligation, occasionally such failure may constitute a breach. The question really is whether the particular international obligation at issue requires the possession or non-possession of certain laws, or the performance or non-performance of certain acts, or some form of combination of both. See Sir Robert Jennings and Sir Arthur Watts, Oppenheim's International Laze Vol. I (Essex: Longman 1992) at 85-6. See Ian Brownlie, Principles of Public International Law (Oxford: Oxford University Press 1998) at 35; Sir Gerald Fitzmaurice 'The General Principles of International Law Considered from the Standpoint of the Rule of Law' 92 Recueil des Cours (1957, II) at 89; and Lord McNair, The Law of Treaties (Oxford: Clarendon Press 1961) at 100, for the proposition that a state does not commit a direct breach of international law by merely failing to ensure the conformity of its internal laws with its international obligations, and a breach occurs only if the state concerned fails to carry out its obligations on a specific occasion. However, the better view seems to be that depending on the nature of the relevant obligation, occasionally such failure may constitute a breach. The question really is whether the particular international obligation at issue requires the possession or non-possession of certain laws, or the performance or non-performance of certain acts, or some form of combination of both. See Sir Robert Jennings and Sir Arthur Watts, Oppenheim's International Laze Vol. I (Essex: Longman 1992) at 85-6. See also Antonio Cassese, International Law (Oxford: Oxford University Press 2001) at 167-8, who argued that one of the reasons for the lack of cases of complaints against national legislation is that states are only interested in the final outcome, namely, compliance or non-compliance with an international obligation; and do not usually concern themselves with factors like deficiencies or flaws in internal laws that lead to violation.
80. States were very wary to bring cases before the PCIJ or the ICJ against national legislation per se, This was partly due to the uncertainty that supposedly exists regarding the likelihood of success in such cases. To illustrate the point, a treaty provision may make it unlawful to do something, which may be permitted or required under the national legislation of a state party. Now, if the state concerned has not applied the law and consequently there has been no 'injury', can it be held that the law by itself violated the treaty provision? Given that the International Court may 'pronounce judgment only in connection with concrete cases where there exists at the time of the adjudication an actual controversy' (Northern Cameroons ICJ Rep 15 (1962) at 33-4); can it be argued that in the absence of specific application of the law there is no 'dispute' (cf. Article 38 of the Statute of the International Court of Justice) that is 'ripe' for judicial consideration? See the Headquarters Agreement case ICJ Rep 12 (1988), in which the US adopted a statute providing for the closure of the office of the PLO Mission to the United Nations in New York in contravention of the US treaty obligations towards the United Nations under the Headquarters Agreement of 1947; but the UN Secretary-General took the view that the mere adoption of the legislation would not violate the Agreement if assurances were given that the PLO Mission would not be closed in pursuance of the statute. See Ian Brownlie, Principles of Public International Law (Oxford: Oxford University Press 1998) at 35; Sir Gerald Fitzmaurice 'The General Principles of International Law Considered from the Standpoint of the Rule of Law' 92 Recueil des Cours (1957, II) at 89; and Lord McNair, The Law of Treaties (Oxford: Clarendon Press 1961) at 100, for the proposition that a state does not commit a direct breach of international law by merely failing to ensure the conformity of its internal laws with its international obligations, and a breach occurs only if the state concerned fails to carry out its obligations on a specific occasion. However, the better view seems to be that depending on the nature of the relevant obligation, occasionally such failure may constitute a breach. The question really is whether the particular international obligation at issue requires the possession or non-possession of certain laws, or the performance or non-performance of certain acts, or some form of combination of both. See Sir Robert Jennings and Sir Arthur Watts, Oppenheim's International Laze Vol. I (Essex: Longman 1992) at 85-6. See Ian Brownlie, Principles of Public International Law (Oxford: Oxford University Press 1998) at 35; Sir Gerald Fitzmaurice 'The General Principles of International Law Considered from the Standpoint of the Rule of Law' 92 Recueil des Cours (1957, II) at 89; and Lord McNair, The Law of Treaties (Oxford: Clarendon Press 1961) at 100, for the proposition that a state does not commit a direct breach of international law by merely failing to ensure the conformity of its internal laws with its international obligations, and a breach occurs only if the state concerned fails to carry out its obligations on a specific occasion. However, the better view seems to be that depending on the nature of the relevant obligation, occasionally such failure may constitute a breach. The question really is whether the particular international obligation at issue requires the possession or non-possession of certain laws, or the performance or non-performance of certain acts, or some form of combination of both. See Sir Robert Jennings and Sir Arthur Watts, Oppenheim's International Laze Vol. I (Essex: Longman 1992) at 85-6. See also Antonio Cassese, International Law (Oxford: Oxford University Press 2001) at 167-8, who argued that one of the reasons for the lack of cases of complaints against national legislation is that states are only interested in the final outcome, namely, compliance or non-compliance with an international obligation; and do not usually concern themselves with factors like deficiencies or flaws in internal laws that lead to violation.
81. States were very wary to bring cases before the PCIJ or the ICJ against national legislation per se, This was partly due to the uncertainty that supposedly exists regarding the likelihood of success in such cases. To illustrate the point, a treaty provision may make it unlawful to do something, which may be permitted or required under the national legislation of a state party. Now, if the state concerned has not applied the law and consequently there has been no 'injury', can it be held that the law by itself violated the treaty provision? Given that the International Court may 'pronounce judgment only in connection with concrete cases where there exists at the time of the adjudication an actual controversy' (Northern Cameroons ICJ Rep 15 (1962) at 33-4); can it be argued that in the absence of specific application of the law there is no 'dispute' (cf. Article 38 of the Statute of the International Court of Justice) that is 'ripe' for judicial consideration? See the Headquarters Agreement case ICJ Rep 12 (1988), in which the US adopted a statute providing for the closure of the office of the PLO Mission to the United Nations in New York in contravention of the US treaty obligations towards the United Nations under the Headquarters Agreement of 1947; but the UN Secretary-General took the view that the mere adoption of the legislation would not violate the Agreement if assurances were given that the PLO Mission would not be closed in pursuance of the statute. See Ian Brownlie, Principles of Public International Law (Oxford: Oxford University Press 1998) at 35; Sir Gerald Fitzmaurice 'The General Principles of International Law Considered from the Standpoint of the Rule of Law' 92 Recueil des Cours (1957, II) at 89; and Lord McNair, The Law of Treaties (Oxford: Clarendon Press 1961) at 100, for the proposition that a state does not commit a direct breach of international law by merely failing to ensure the conformity of its internal laws with its international obligations, and a breach occurs only if the state concerned fails to carry out its obligations on a specific occasion. However, the better view seems to be that depending on the nature of the relevant obligation, occasionally such failure may constitute a breach. The question really is whether the particular international obligation at issue requires the possession or non-possession of certain laws, or the performance or non-performance of certain acts, or some form of combination of both. See Sir Robert Jennings and Sir Arthur Watts, Oppenheim's International Laze Vol. I (Essex: Longman 1992) at 85-6. See Ian Brownlie, Principles of Public International Law (Oxford: Oxford University Press 1998) at 35; Sir Gerald Fitzmaurice 'The General Principles of International Law Considered from the Standpoint of the Rule of Law' 92 Recueil des Cours (1957, II) at 89; and Lord McNair, The Law of Treaties (Oxford: Clarendon Press 1961) at 100, for the proposition that a state does not commit a direct breach of international law by merely failing to ensure the conformity of its internal laws with its international obligations, and a breach occurs only if the state concerned fails to carry out its obligations on a specific occasion. However, the better view seems to be that depending on the nature of the relevant obligation, occasionally such failure may constitute a breach. The question really is whether the particular international obligation at issue requires the possession or non-possession of certain laws, or the performance or non-performance of certain acts, or some form of combination of both. See Sir Robert Jennings and Sir Arthur Watts, Oppenheim's International Laze Vol. I (Essex: Longman 1992) at 85-6. See also Antonio Cassese, International Law (Oxford: Oxford University Press 2001) at 167-8, who argued that one of the reasons for the lack of cases of complaints against national legislation is that states are only interested in the final outcome, namely, compliance or non-compliance with an international obligation; and do not usually concern themselves with factors like deficiencies or flaws in internal laws that lead to violation.
82. See LaGrand case, para 81.
83. See ibid.
84. Ibid paras 90-1.
85. See, for instance, the Fisheries case ICJ Rep 116 (1951) and the Guardianship case ICJ Rep 55 (1958). However, in neither of these two cases was a law found to be inconsistent with an international obligation. In the Headquarters Agreement case ICJ Rep 12 (1988), although a US law that was prima facie inconsistent with US treaty obligations under the Headquarters Agreement was at issue, the International Court was not required to determine whether the law violated the Agreement. The question on which the Court's advisory opinion was requested related to the determination of whether because of the adoption of the law and of administrative decisions and measures to apply the law there came into being a dispute; such that the dispute settlement procedure of the Agreement could be invoked; or whether a dispute would arise only if and when the law were effectively enforced by US courts. The International Court carefully considered the factual circumstances of the case including the fact that the US administration had decided to apply the law and resorted to US courts for enforcement. Under these circumstances it found that a dispute had arisen. As the Court declined to determine the exact date at which the dispute materialized (see ibid at 30, paras 43-4), the judgment of the Court does not provide any guidance as to whether a dispute came into being because of the mere enactment of the law or whether it arose only after the administration had taken measures to apply the law.
86. See, for instance, the Fisheries case ICJ Rep 116 (1951) and the Guardianship case ICJ Rep 55 (1958). However, in neither of these two cases was a law found to be inconsistent with an international obligation. In the Headquarters Agreement case ICJ Rep 12 (1988), although a US law that was prima facie inconsistent with US treaty obligations under the Headquarters Agreement was at issue, the International Court was not required to determine whether the law violated the Agreement. The question on which the Court's advisory opinion was requested related to the determination of whether because of the adoption of the law and of administrative decisions and measures to apply the law there came into being a dispute; such that the dispute settlement procedure of the Agreement could be invoked; or whether a dispute would arise only if and when the law were effectively enforced by US courts. The International Court carefully considered the factual circumstances of the case including the fact that the US administration had decided to apply the law and resorted to US courts for enforcement. Under these circumstances it found that a dispute had arisen. As the Court declined to determine the exact date at which the dispute materialized (see ibid at 30, paras 43-4), the judgment of the Court does not provide any guidance as to whether a dispute came into being because of the mere enactment of the law or whether it arose only after the administration had taken measures to apply the law.
87. See, for instance, the Fisheries case ICJ Rep 116 (1951) and the Guardianship case ICJ Rep 55 (1958). However, in neither of these two cases was a law found to be inconsistent with an international obligation. In the Headquarters Agreement case ICJ Rep 12 (1988), although a US law that was prima facie inconsistent with US treaty obligations under the Headquarters Agreement was at issue, the International Court was not required to determine whether the law violated the Agreement. The question on which the Court's advisory opinion was requested related to the determination of whether because of the adoption of the law and of administrative decisions and measures to apply the law there came into being a dispute; such that the dispute settlement procedure of the Agreement could be invoked; or whether a dispute would arise only if and when the law were effectively enforced by US courts. The International Court carefully considered the factual circumstances of the case including the fact that the US administration had decided to apply the law and resorted to US courts for enforcement. Under these circumstances it found that a dispute had arisen. As the Court declined to determine the exact date at which the dispute materialized (see ibid at 30, paras 43-4), the judgment of the Court does not provide any guidance as to whether a dispute came into being because of the mere enactment of the law or whether it arose only after the administration had taken measures to apply the law.
88. See, for instance, the Fisheries case ICJ Rep 116 (1951) and the Guardianship case ICJ Rep 55 (1958). However, in neither of these two cases was a law found to be inconsistent with an international obligation. In the Headquarters Agreement case ICJ Rep 12 (1988), although a US law that was prima facie inconsistent with US treaty obligations under the Headquarters Agreement was at issue, the International Court was not required to determine whether the law violated the Agreement. The question on which the Court's advisory opinion was requested related to the determination of whether because of the adoption of the law and of administrative decisions and measures to apply the law there came into being a dispute; such that the dispute settlement procedure of the Agreement could be invoked; or whether a dispute would arise only if and when the law were effectively enforced by US courts. The International Court carefully considered the factual circumstances of the case including the fact that the US administration had decided to apply the law and resorted to US courts for enforcement. Under these circumstances it found that a dispute had arisen. As the Court declined to determine the exact date at which the dispute materialized (see ibid at 30, paras 43-4), the judgment of the Court does not provide any guidance as to whether a dispute came into being because of the mere enactment of the law or whether it arose only after the administration had taken measures to apply the law.
89. See, for instance, the Fisheries case ICJ Rep 116 (1951) and the Guardianship case ICJ Rep 55 (1958).
90. See, for instance, the Fisheries case ICJ Rep 116 (1951) and the Guardianship case ICJ Rep 55 (1958).
91. See, for instance. Case 167-73, Commission v France [1974] ECR 359; Case 104/86, Commission v Italy [1988] ECR 1799; Case C-58/99, Commission v Italy [2000] ECR 1-3811; Case C-264/99, Commission v Italy [2000] ECR I-4417; Case C-160/99, Commission v France [2000] ECR I-6137; Case C-162/99, Commission v Italy [2001] ECR I-541; Case C-265/99, Commission v France [2001] ECR I-2305; Case C-159/99, Commission v Italy [2001] ECR I-4007; Case C-283/99, Commission v Italy [2001] ECR I-4363; Case C-40/00, Commission v France [2001] ECR I-4539; and Case C-70/99, Commission v Portugal [2001] ECR I-4845.
92. See, for instance. Case 167-73, Commission v France [1974] ECR 359; Case 104/86, Commission v Italy [1988] ECR 1799; Case C-58/99, Commission v Italy [2000] ECR 1-3811; Case C-264/99, Commission v Italy [2000] ECR I-4417; Case C-160/99, Commission v France [2000] ECR I-6137; Case C-162/99, Commission v Italy [2001] ECR I-541; Case C-265/99, Commission v France [2001] ECR I-2305; Case C-159/99, Commission v Italy [2001] ECR I-4007; Case C-283/99, Commission v Italy [2001] ECR I-4363; Case C-40/00, Commission v France [2001] ECR I-4539; and Case C-70/99, Commission v Portugal [2001] ECR I-4845.
93. See, for instance. Case 167-73, Commission v France [1974] ECR 359; Case 104/86, Commission v Italy [1988] ECR 1799; Case C-58/99, Commission v Italy [2000] ECR 1-3811; Case C-264/99, Commission v Italy [2000] ECR I-4417; Case C-160/99, Commission v France [2000] ECR I-6137; Case C-162/99, Commission v Italy [2001] ECR I-541; Case C-265/99, Commission v France [2001] ECR I-2305; Case C-159/99, Commission v Italy [2001] ECR I-4007; Case C-283/99, Commission v Italy [2001] ECR I-4363; Case C-40/00, Commission v France [2001] ECR I-4539; and Case C-70/99, Commission v Portugal [2001] ECR I-4845.
94. See, for instance. Case 167-73, Commission v France [1974] ECR 359; Case 104/86, Commission v Italy [1988] ECR 1799; Case C-58/99, Commission v Italy [2000] ECR 1-3811; Case C-264/99, Commission v Italy [2000] ECR I-4417; Case C-160/99, Commission v France [2000] ECR I-6137; Case C-162/99, Commission v Italy [2001] ECR I-541; Case C-265/99, Commission v France [2001] ECR I-2305; Case C-159/99, Commission v Italy [2001] ECR I-4007; Case C-283/99, Commission v Italy [2001] ECR I-4363; Case C-40/00, Commission v France [2001] ECR I-4539; and Case C-70/99, Commission v Portugal [2001] ECR I-4845.
95. See, for instance. Case 167-73, Commission v France [1974] ECR 359; Case 104/86, Commission v Italy [1988] ECR 1799; Case C-58/99, Commission v Italy [2000] ECR 1-3811; Case C-264/99, Commission v Italy [2000] ECR I-4417; Case C-160/99, Commission v France [2000] ECR I-6137; Case C-162/99, Commission v Italy [2001] ECR I-541; Case C-265/99, Commission v France [2001] ECR I-2305; Case C-159/99, Commission v Italy [2001] ECR I-4007; Case C-283/99, Commission v Italy [2001] ECR I-4363; Case C-40/00, Commission v France [2001] ECR I-4539; and Case C-70/99, Commission v Portugal [2001] ECR I-4845.
96. See, for instance. Case 167-73, Commission v France [1974] ECR 359; Case 104/86, Commission v Italy [1988] ECR 1799; Case C-58/99, Commission v Italy [2000] ECR 1-3811; Case C-264/99, Commission v Italy [2000] ECR I-4417; Case C-160/99, Commission v France [2000] ECR I-6137; Case C-162/99, Commission v Italy [2001] ECR I-541; Case C-265/99, Commission v France [2001] ECR I-2305; Case C-159/99, Commission v Italy [2001] ECR I-4007; Case C-283/99, Commission v Italy [2001] ECR I-4363; Case C-40/00, Commission v France [2001] ECR I-4539; and Case C-70/99, Commission v Portugal [2001] ECR I-4845.
97. See, for instance. Case 167-73, Commission v France [1974] ECR 359; Case 104/86, Commission v Italy [1988] ECR 1799; Case C-58/99, Commission v Italy [2000] ECR 1-3811; Case C-264/99, Commission v Italy [2000] ECR I-4417; Case C-160/99, Commission v France [2000] ECR I-6137; Case C-162/99, Commission v Italy [2001] ECR I-541; Case C-265/99, Commission v France [2001] ECR I-2305; Case C-159/99, Commission v Italy [2001] ECR I-4007; Case C-283/99, Commission v Italy [2001] ECR I-4363; Case C-40/00, Commission v France [2001] ECR I-4539; and Case C-70/99, Commission v Portugal [2001] ECR I-4845.
98. See, for instance. Case 167-73, Commission v France [1974] ECR 359; Case 104/86, Commission v Italy [1988] ECR 1799; Case C-58/99, Commission v Italy [2000] ECR 1-3811; Case C-264/99, Commission v Italy [2000] ECR I-4417; Case C-160/99, Commission v France [2000] ECR I-6137; Case C-162/99, Commission v Italy [2001] ECR I-541; Case C-265/99, Commission v France [2001] ECR I-2305; Case C-159/99, Commission v Italy [2001] ECR I-4007; Case C-283/99, Commission v Italy [2001] ECR I-4363; Case C-40/00, Commission v France [2001] ECR I-4539; and Case C-70/99, Commission v Portugal [2001] ECR I-4845.
99. See, for instance. Case 167-73, Commission v France [1974] ECR 359; Case 104/86, Commission v Italy [1988] ECR 1799; Case C-58/99, Commission v Italy [2000] ECR 1-3811; Case C-264/99, Commission v Italy [2000] ECR I-4417; Case C-160/99, Commission v France [2000] ECR I-6137; Case C-162/99, Commission v Italy [2001] ECR I-541; Case C-265/99, Commission v France [2001] ECR I-2305; Case C-159/99, Commission v Italy [2001] ECR I-4007; Case C-283/99, Commission v Italy [2001] ECR I-4363; Case C-40/00, Commission v France [2001] ECR I-4539; and Case C-70/99, Commission v Portugal [2001] ECR I-4845.
100. See, for instance. Case 167-73, Commission v France [1974] ECR 359; Case 104/86, Commission v Italy [1988] ECR 1799; Case C-58/99, Commission v Italy [2000] ECR 1-3811; Case C-264/99, Commission v Italy [2000] ECR I-4417; Case C-160/99, Commission v France [2000] ECR I-6137; Case C-162/99, Commission v Italy [2001] ECR I-541; Case C-265/99, Commission v France [2001] ECR I-2305; Case C-159/99, Commission v Italy [2001] ECR I-4007; Case C-283/99, Commission v Italy [2001] ECR I-4363; Case C-40/00, Commission v France [2001] ECR I-4539; and Case C-70/99, Commission v Portugal [2001] ECR I-4845.
101. See, for instance. Case 167-73, Commission v France [1974] ECR 359; Case 104/86, Commission v Italy [1988] ECR 1799; Case C-58/99, Commission v Italy [2000] ECR 1-3811; Case C-264/99, Commission v Italy [2000] ECR I-4417; Case C-160/99, Commission v France [2000] ECR I-6137; Case C-162/99, Commission v Italy [2001] ECR I-541; Case C-265/99, Commission v France [2001] ECR I-2305; Case C-159/99, Commission v Italy [2001] ECR I-4007; Case C-283/99, Commission v Italy [2001] ECR I-4363; Case C-40/00, Commission v France [2001] ECR I-4539; and Case C-70/99, Commission v Portugal [2001] ECR I-4845.
102. See, for instance, the Axen case,'Judgment of 8 December 1983, para 24, http://www.echr.coe.int/Eng/Judgments.htm (visited 23 January 2002); the Bönisch case, Judgment of 6 May 1985, para 27, ibid; and Wingrove v United Kingdom, Judgment of 25 November 1996, para 50, ibid.
103. See, for instance, the Axen case,'Judgment of 8 December 1983, para 24, http://www.echr.coe.int/Eng/Judgments.htm (visited 23 January 2002); the Bönisch case, Judgment of 6 May 1985, para 27, ibid; and Wingrove v United Kingdom, Judgment of 25 November 1996, para 50, ibid.
104. See, for instance, the Axen case,'Judgment of 8 December 1983, para 24, http://www.echr.coe.int/Eng/Judgments.htm (visited 23 January 2002); the Bönisch case, Judgment of 6 May 1985, para 27, ibid; and Wingrove v United Kingdom, Judgment of 25 November 1996, para 50, ibid.
105. See, for instance, Abdulaziz, Cabales and Balkandali v United Kingdom, Judgment of 28 May 1985, para 93, http://www.echr.coe.int/Eng/Judgments.htm (visited 23 January 2002); Ahmed v United Kingdom, Judgment of 2 September 1998, ibid; Rekvènyi v Hungary, Judgment of 20 May 1999, ibid; Hashman and Harrup v United Kingdom, Judgment of 25 November 1999, ibid; S.B.C. v United Kingdom, Judgment of 19 June 2001, ibid.
106. See, for instance, Abdulaziz, Cabales and Balkandali v United Kingdom, Judgment of 28 May 1985, para 93, http://www.echr.coe.int/Eng/Judgments.htm (visited 23 January 2002); Ahmed v United Kingdom, Judgment of 2 September 1998, ibid; Rekvènyi v Hungary, Judgment of 20 May 1999, ibid; Hashman and Harrup v United Kingdom, Judgment of 25 November 1999, ibid; S.B.C. v United Kingdom, Judgment of 19 June 2001, ibid.
107. See, for instance, Abdulaziz, Cabales and Balkandali v United Kingdom, Judgment of 28 May 1985, para 93, http://www.echr.coe.int/Eng/Judgments.htm (visited 23 January 2002); Ahmed v United Kingdom, Judgment of 2 September 1998, ibid; Rekvènyi v Hungary, Judgment of 20 May 1999, ibid; Hashman and Harrup v United Kingdom, Judgment of 25 November 1999, ibid; S.B.C. v United Kingdom, Judgment of 19 June 2001, ibid.
108. See, for instance, Abdulaziz, Cabales and Balkandali v United Kingdom, Judgment of 28 May 1985, para 93, http://www.echr.coe.int/Eng/Judgments.htm (visited 23 January 2002); Ahmed v United Kingdom, Judgment of 2 September 1998, ibid; Rekvènyi v Hungary, Judgment of 20 May 1999, ibid; Hashman and Harrup v United Kingdom, Judgment of 25 November 1999, ibid; S.B.C. v United Kingdom, Judgment of 19 June 2001, ibid.
109. See, for instance, Abdulaziz, Cabales and Balkandali v United Kingdom, Judgment of 28 May 1985, para 93, http://www.echr.coe.int/Eng/Judgments.htm (visited 23 January 2002); Ahmed v United Kingdom, Judgment of 2 September 1998, ibid; Rekvènyi v Hungary, Judgment of 20 May 1999, ibid; Hashman and Harrup v United Kingdom, Judgment of 25 November 1999, ibid; S.B.C. v United Kingdom, Judgment of 19 June 2001, ibid.
110. Under Article XXIII a contracting party could bring a dispute settlement case if any benefit accruing to it under the General Agreement was nullified or impaired by another contracting party.
111. US -Superfund, para 5.2.2. The Superfund Panel did not refer to the PPA related cases. Perhaps the dilemma of the Panel was that since under the PPA measures based only on mandatory legislation were permitted, greater GATT conformity warranted a restrictive definition of mandatory legislation whereas in the context of a challenge to national laws the situation was quite reverse and a broader definition of mandatory laws would have secured greater GATT conformity.
112. See cases cited, above n 14.
113. See e.g. Argentina - Textiles (para 6.46); Canada - Aircraft, paras 9.124, 9.208; and Turkey - Textile, para 9.37.
114. See e.g. Argentina - Textiles (para 6.46); Canada - Aircraft, paras 9.124, 9.208; and Turkey - Textile, para 9.37.
115. See e.g. Argentina - Textiles (para 6.46); Canada - Aircraft, paras 9.124, 9.208; and Turkey - Textile, para 9.37.
116. See US - Anti-Dumping Act I & II; and US - Hot-Rolled Steel.
117. See US - Anti-Dumping Act I & II; and US - Hot-Rolled Steel.
118. See Appellate Body Report, US - Anti-Dumping Act.
119. The word 'automaticity' has been coined to refer to the binding nature and timeliness of the WTO dispute settlement system.
120. On Section 301 see generally Mathew Schaefer, 'Section 301 and the World Trade Organization: A Largely Peaceful Coexistence To Date', 1(1) JIEL 156 (1998); A. Lynne Puckett and William L. Reynolds, 'Rules, Sanctions and Enforcement under Section 301: At Odds with the WTO?', 90 AJIL 675 (1996); Jagdish Bhagwati and Hugh T. Patrick (eds), Aggressive Unilateralism America's 301 Trade Policy and the World Trading System (New York: Harvester Wheatsheaf 1991).
121. On Section 301 see generally Mathew Schaefer, 'Section 301 and the World Trade Organization: A Largely Peaceful Coexistence To Date', 1(1) JIEL 156 (1998); A. Lynne Puckett and William L. Reynolds, 'Rules, Sanctions and Enforcement under Section 301: At Odds with the WTO?', 90 AJIL 675 (1996); Jagdish Bhagwati and Hugh T. Patrick (eds), Aggressive Unilateralism America's 301 Trade Policy and the World Trading System (New York: Harvester Wheatsheaf 1991).
122. On Section 301 see generally Mathew Schaefer, 'section 301 and the World Trade Organization: A Largely Peaceful Coexistence To Date', 1(1) Jiel 156 (1998); A. Lynne Puckett and William L. Reynolds, 'Rules, Sanctions and Enforcement under Section 301: At Odds with the WTO?', 90 AJIL 675 (1996); Jagdish Bhagwati and Hugh T. Patrick (eds), Aggressive Unilateralism America's 301 Trade Policy and the World Trading System (New York: Harvester Wheatsheaf 1991).
123. See e.g. Argentina - Textiles, para 6.45.
124. See e.g. US - Malt Beverages, paras 5.39, 5.57, 5.66; US - Non-Rubber Footwear, para 6.13; and Argentina - Textiles, para 6.45.
125. See e.g. US - Malt Beverages, paras 5.39, 5.57, 5.66; US - Non-Rubber Footwear, para 6.13; and Argentina - Textiles, para 6.45.
126. See e.g. US - Malt Beverages, paras 5.39, 5.57, 5.66; US - Non-Rubber Footwear, para 6.13; and Argentina - Textiles, para 6.45.
127. See e.g. EEC - Parts and Components, para 5.25.
128. US - Superfund, para 5.2.9. See also Thai - Cigarettes discussed in the Introduction.
129. US - Superfund, para 5.2.9. See also Thai - Cigarettes discussed in the Introduction.
130. US - Malt Beverages, para 5.57.
131. Indeed, in a similar situation a panel held a national law to be discretionary in the context of the PPA, because the executive had the discretion to revoke the more favourable treatment granted to domestic products. (Canada - Alcoholic Drinks II).
132. US - Tobacco, paras 123-4
133. India - Patent I, para 7.35.
134. Appellate Body Report, India - Patent I, paras 69-70.
135. India - Patent II, paras 7.48-9.
136. Canada - Aircraft, paras 9.128-9.
137. See ibid, paras 9.204-13.
138. US - Section 301, para 4.250.
139. Ibid, para 7.46.
140. Ibid paras 7.53-54.
141. Article 3.2 of the DSU directs panels and the Appellate Body to clarify WTO provisions 'in accordance with customary rules of interpretation of public international law'. Articles 31 and 32 of the Vienna Convention on the Law of Treaties ('VCLT') are regarded as containing these customary rules. See further, below texts accompanying 88-89.
142. See further, below texts accompanying 112-14.
143. The Panels in these two cases were composed of the same three persons. Accordingly these Panels will be referred to as 'the Panel'.
144. US - Anti-Dumping Act I, paras 6.84, 6.169 and US - Anti-Dumping Act II, paras 6.97, 6.191.
145. US - Anti-Dumping Act I, paras 6.84, 6.169 and US - Anti-Dumping Act II, paras 6.97, 6.191.
146. See US - Anti-Dumping Act I, n 425 and US - Anti-Dumping Act II, n 553.
147. See US - Anti-Dumping Act I, n 425 and US - Anti-Dumping Act II, n 553.
148. Appellate Body Report, US - Anti-Dumping Act, para 88.
149. Ibid, paras, 89-91.
150. US - Anti-Dumping Act II, para 6.189.
151. Appellate Body Report, US - Anti-Dumping Act, para 99.
152. US - Hot-Rolled Steel, paras 7.90 and 8.1(b).
153. See ibid, paras 7.139-46, 7.150 and 8.2(a).
154. See ibid, paras 7.169-99 and 8.2(b).
155. See Appellate Body Report, US - Hot-Rolled Steel WT/DS184/AB/R (24 July 2001), paras 128-9, 201-9.
156. US - Exports Restraints, para 8.6.
157. Ibid paras 8.86-7.
158. Ibid paras 8.77-131. In this case the Panel also ruled that the issue of the distinction is a substantive and not preliminary issue; see ibid, para 8.2.
159. Ibid paras 8.77-131. In this case the Panel also ruled that the issue of the distinction is a substantive and not preliminary issue; see ibid, para 8.2.
160. See Appellate Body Report, US - Anti-Dumping Act, para 99 and n 59.
161. US - Section 301, para 7.22.
162. US - Section 301, paras 7.58-97
163. US - Superfund, para 5.2.9
164. Cf. US response to third-party submission by Hong Kong in US - Section 301, at paras 4.276-84. See William J. Davey, 'Has the WTO Dispute Settlement System Exceeded its Authority?', 4(1) JIEL 79 (2001), at 103.
165. Cf. US response to third-party submission by Hong Kong in US - Section 301, at paras 4.276-84. See William J. Davey, 'Has the WTO Dispute Settlement System Exceeded its Authority?', 4(1) JIEL 79 (2001), at 103.
166. US - Superfund, para 5.2.2. Cf. the Panel's observation in US - Section 301 (para 7.82) that even though Article III:2 would not, on its face, seem to prohibit legislation per se in US - Superfund it was read as a promise not only to abstain from imposing discriminatory taxes, but also not to enact legislation with that effect.
167. US - Superfund, para 5.2.2. Cf. the Panel's observation in US - Section 301 (para 7.82) that even though Article III:2 would not, on its face, seem to prohibit legislation per se in US - Superfund it was read as a promise not only to abstain from imposing discriminatory taxes, but also not to enact legislation with that effect.
168. EEC - Parts and Components, para 5.25.
169. A pertinent question is: to what extent will it be appropriate for the WTO panels and the Appellate Body to apply the past practice that developed in the absence of any provision similar to Article XVI:4? See third-party submission by Brazil in US - Section 301, para 5.16.
170. See for example, Panel Reports, Canada - Certain Measures Concerning Periodicals ('Canada - Periodicals') WT/DS31/R (14 March 1997); United States - Tax Treatment for 'Foreign Sales Corporations' ('US - FSC') WT/DS108/R (8 October 1999); and United States - Section 110(5) of the US Copyright Act WT/DS160/R (15 June 2000); and Appellate Body Reports, Canada - Periodicals WT/DS31/AB/R (30 June 1997); and US - FSC WT/DS108/AB/R (24 February 2000).
171. See for example, Panel Reports, Canada - Certain Measures Concerning Periodicals ('Canada - Periodicals') WT/DS31/R (14 March 1997); United States - Tax Treatment for 'Foreign Sales Corporations' ('US - FSC') WT/DS108/R (8 October 1999); and United States - Section 110(5) of the US Copyright Act WT/DS160/R (15 June 2000); and Appellate Body Reports, Canada - Periodicals WT/DS31/AB/R (30 June 1997); and US - FSC WT/DS108/AB/R (24 February 2000).
172. See for example, Panel Reports, Canada - Certain Measures Concerning Periodicals ('Canada - Periodicals') WT/DS31/R (14 March 1997); United States - Tax Treatment for 'Foreign Sales Corporations' ('US - FSC') WT/DS108/R (8 October 1999); and United States - Section 110(5) of the US Copyright Act WT/DS160/R (15 June 2000); and Appellate Body Reports, Canada - Periodicals WT/DS31/AB/R (30 June 1997); and US - FSC WT/DS108/AB/R (24 February 2000).
173. See for example, Panel Reports, Canada - Certain Measures Concerning Periodicals ('Canada - Periodicals') WT/DS31/R (14 March 1997); United States - Tax Treatment for 'Foreign Sales Corporations' ('US - FSC') WT/DS108/R (8 October 1999); and United States - Section 110(5) of the US Copyright Act WT/DS160/R (15 June 2000); and Appellate Body Reports, Canada - Periodicals WT/DS31/AB/R (30 June 1997); and US - FSC WT/DS108/AB/R (24 February 2000).
174. See for example, Panel Reports, Canada - Certain Measures Concerning Periodicals ('Canada - Periodicals') WT/DS31/R (14 March 1997); United States - Tax Treatment for 'Foreign Sales Corporations' ('US - FSC') WT/DS108/R (8 October 1999); and United States - Section 110(5) of the US Copyright Act WT/DS160/R (15 June 2000); and Appellate Body Reports, Canada - Periodicals WT/DS31/AB/R (30 June 1997); and US - FSC WT/DS108/AB/R (24 February 2000).
175. See generally John H. Jackson, 'The Great 1994 Sovereignty Debate: United States Acceptance and Implementation of the Uruguay Round Results', 36 Columbia Journal of Transnational Law 157 (1997).
176. US - Section 301, para 4.181.
177. See Davey, above n 91 at 103.
178. Appellate Body Report, India - Patent I, paras 57 and 70.
179. See for example, US - Hot-Rolled Steel, which was decided after US - Section 301, but which nonetheless did not construe certain provisions of the Anti-Dumping Agreement as prohibiting discretionary legislation.
180. See US submission in US - Section 301, at paras 4.283-4.
181. See Meinhard Hilf, 'Power, Rules and Principles - Which Orientation for WTO/GATT Law?', 4(1) JIEL 111 (2001).
182. US - Section 301, para 7.89.
183. See ibid paras 7.71-91.
184. See generally Ernst-Ulrich Petersmann The GATT/WTO Dispute Settlement System 1-57 (London: Kluwer Law International 1997) and Ernst-Ulrich Petersmann, 'From the Hobbesian International Law of Coexistence to Modem Integration Law: The WTO Dispute Settlement System', 1(2) JIEL 175 (1998).
185. See generally Ernst-Ulrich Petersmann The GATT/WTO Dispute Settlement System 1-57 (London: Kluwer Law International 1997) and Ernst-Ulrich Petersmann, 'From the Hobbesian International Law of Coexistence to Modem Integration Law: The WTO Dispute Settlement System', 1(2) JIEL 175 (1998).
186. US - Section 301, para 7.53 (italics in original).
187. For submissions of the EC and the US on the possible constructions of Article XVI: 4 see ibid, paras 4.361-489.
188. For submissions by the EC and the US on this point see ibid paras 4.250-90.
189. See generally Steven P. Croley and John H. Jackson, 'WTO Dispute Procedures, Standard of Review, and Deference to National Governments', 90 AJIL 193 (1996).
190. Professor William Davey considered a number of such techniques, which he termed 'issue-avoidance techniques', available in the US and international law rules and recommended that the WTO system should make more use of three such techniques: mootness, ripeness and the exercise of judicial economy. See Davey, above n 91 at 96-110.
191. US - Section 301, para 7.93.
192. Ibid, paras 7.25-26.
193. The Statement of Administrative Action was submitted by the US administration to the Congress in support of the implementing legislation for the Uruguay Round agreements. It indicated inter alia that the USTR would base any section 301 determinations on the panel or Appellate Body findings.
194. See US - Section 301, paras 7.98-136.
195. Lockerbie case, ICJ Rep 115 (1998) at 131, para 45; and Border and Transborder Armed Actions, ICJ Rep 69 (1988) at 95, para 66.
196. Lockerbie case, ICJ Rep 115 (1998) at 131, para 45; and Border and Transborder Armed Actions, ICJ Rep 69 (1988) at 95, para 66.
197. Nuclear Tests cases, ICJ Rep 253 (1974) at 267-72; ICJ Rep 457 (1974) at 472-7.
198. Nuclear Tests cases, ICJ Rep 253 (1974) at 267-72; ICJ Rep 457 (1974) at 472-7.
199. See generally, Panel Report, Indonesia - Certain Measures Affecting the Automobile Industry WT/DS54/R (2 July 1998), para 14.9, n 642 and the cases cited there. See also Davey, above n 91 at 99-101.
200. See generally, Panel Report, Indonesia - Certain Measures Affecting the Automobile Industry WT/DS54/R (2 July 1998), para 14.9, n 642 and the cases cited there. See also Davey, above n 91 at 99-101.
201. Certainly, US - Section 301 is not the first case in which the defendant government made such a commitment before the panel. See e.g. US - Tobacco, para 115; and US - Superfund, paras 5.2.9-10.
202. Certainly, US - Section 301 is not the first case in which the defendant government made such a commitment before the panel. See e.g. US - Tobacco, para 115; and US - Superfund, paras 5.2.9-10.
203. See German Interests in Polish Upper Silesia, PCIJ Ser A No 7 (1926) at 13; Free Zones, PCIJ Ser A/B No 46 (1932) at 169-70.
204. See German Interests in Polish Upper Silesia, PCIJ Ser A No 7 (1926) at 13; Free Zones, PCIJ Ser A/B No 46 (1932) at 169-70.
205. See generally the Nuclear Tests cases, at 267-72, 472-7; Alfred P. Rubin, 'The International Legal Effects of Unilateral Declarations', 71 AJIL 1 (1977) ; Thomas M. Franck, 'Word Made Law: The Decision of the ICJ in the Nuclear Test Cases', 69 AJIL 612 (1975).
206. See generally the Nuclear Tests cases, at 267-72, 472-7; Alfred P. Rubin, 'The International Legal Effects of Unilateral Declarations', 71 AJIL 1 (1977) ; Thomas M. Franck, 'Word Made Law: The Decision of the ICJ in the Nuclear Test Cases', 69 AJIL 612 (1975).
207. See generally the Nuclear Tests cases, at 267-72, 472-7; Alfred P. Rubin, 'The International Legal Effects of Unilateral Declarations', 71 AJIL 1 (1977) ; Thomas M. Franck, 'Word Made Law: The Decision of the ICJ in the Nuclear Test Cases', 69 AJIL 612 (1975).
208. US - Station 301, para 7.136
209. See Review of the Dispute Settlement Understanding, Non-Paper by the European Communities (October 1998), referenced in US - Section 301 at n 126, 132, 220, 269.