How to win a World Trade Organization dispute based on non-World Trade Organization law? Questions of jurisdiction and merits

Journal of World Trade

Volumn 37, Issue 6, 2003, Pages 997-1030

  Pauwelyn, Joost ^a  

^a DUKE UNIVERSITY   (United States)

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EID: 27744489266     PISSN: 10116702     EISSN: None     Source Type: Journal    
DOI: 10.54648/trad2003052     Document Type: Article

References (161)

1. Appellate Body Report, United States - Import Prohibition of Certain Shrimp and Shrimp Products ("USD - Shrimp"), WT/DS58/AB/R, adopted 6 November 1998, DSR 1998:VII, 2755, paras 128-132.
2. On the process of interpreting the WTO treaty with reference to non-WTO law, see Gabrielle Marceau, A Call for Coherence in International Law - Praises for the Prohibition Against "Clinical Isolation" in WTO Dispute Settlement, 33 J.W.T. (1999), 87;
3. and Joost Pauwelyn, Conflict of Norms in Public International Law, How WTO Law Relates to Other Rules of International Law (Cambridge: Cambridge University Press, 2003), pp. 244-274 (Treaty interpretation as a conflict-avoidance tool).
4. Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment of 6 November 2003, at discussed infra.
5. For an overview of relevant case law, see J. Cameron and K. Gray, Principles of International Law in the WTO Dispute Settlement Body, 50 I.C.L.Q. (2001), 248-298;
6. and Joost Pauwelyn, The Role of Public International Law in the WTO: How Far Can We Go?, 95 A.J.I.L. (2001), 563.
7. See also Meinhard Hilf, Power, Rules and Principles - Which Orientation for WTO/GATT Law?, J.I.E.L. (2001), 111-130.
8. For an increasingly isolated critique, see John McGinnis, The Appropriate Hierarchy of Global Multilateralism and Customary International Law: The Example of the WTO, Northwestern Law and Economics Research Paper No. 03-09, p. 36, at ("I would not interpret the WTO to permit it to be ... supplemented by emerging customary international law ... The WTO represents a comprehensive code for the overriding purpose of expanding trade. Therefore, it is not amenable to supplementation by other rules with other objectives that will detract from this purpose"): It is difficult to see, however, how WTO Panels could operate outside of general international law and have to invent from scratch, for example, rules on burden of proof, good faith, state responsibility etc.; nor is it easy to square Professor McGinnis' view with the Vienna Convention rules on treaty interpretation, explicitly confirmed in Article 3.2 of the DSU and numerous Appellate Body decisions
9. Pauwelyn, as note 1 above, at pp. 440-478;
10. and Pauwelyn, as note 3 above, at 559-565.
11. The text of the Kimberley Process Certification Scheme is at .
12. Adopted unanimously by the 56th World Health Assembly on 21 May 2003. The final text is in World Health Assembly Resolution 56.1, available at .
13. Cartagena Protocol on Biosafety to the Convention on Biological Diversity, 29 January 2000, 39 I.L.M. 1027.
14. See note 96 below.
15. In particular, an increasing number of overlaps arise between the rules of the World Bank and the IMF, on the one hand, and UN-related rules and decisions, on the other hand. This overlap is complicated by the stated non-political nature of the Bank and the IMF (set out in Articles IV, section 10 and III, section 5(b) of the Bank's Articles of Agreement and Articles I (v) and V, section 3 of the IMF's Articles of Agreement). See, also, the role of, e.g., international human rights standards before the World Bank's Inspection Panel in cases such as "Chad: Petroleum Development Project", discussed in World Bank, The Inspection Panel 10 Years On (Washington, D.C.: World Bank, 2003), p. 96.
16. Also see the recent Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment of 6 November 2003, at
17. In respect of UNCLOS, see notes 18, 62, 66 and 73 below.
18. For a glimpse of potential overlaps in investment disputes, see Gaetan Verhoorsel, The Use of Investor-State Arbitration under Bilateral Investment Treaties to Seek Relief for Breaches of WTO Law, J.I.E.L. (2003), 493-506;
19. and the ICSID case Compania de Aguas del Aconquija S.A. & Vivendi Universal v. Argentine Republic 40 ILM 426 (2001), and 41 ILM 1135 (2002), discussed in notes 36, 49, 53, 57, 67 and 70 below.
20. See, e.g., Opel Austria v. Council, CT-115/94, REC. 1997, 11-39;
21. and Racke GmbH v. Hauptzollamt Mainz, C-162/96 [1998] ECR I-3655.
22. See, e.g., Lucius Caflisch, The Rome Statute and the European Convention on Human Rights, 23 Human Rights L.J. (September 2002), 1-12.
23. Understanding on Rules and Procedures Governing the Settlement of Disputes, Annex 2 to the Marrakesh Agreement (DSU).
24. Lorand Bartels, Applicable Law in WTO Dispute Settlement Proceedings, 35 J.W.T. 3 (June 2001), 499; and Pauwelyn, as note 1 above, at pp. 443-472.
25. As most recently noted by an Arbitral Tribunal under Annex VII of UNCLOS: "The Tribunal agrees ... that there is a cardinal distinction between the scope of its jurisdiction ..., on the one hand, and the law to be applied by the Tribunal ..., on the other hand" (Mox Plant case (Ireland v. United Kingdom), Order No. 3 of 24 June 2003, at , p. 6, para. 19).
26. In the same vein, see the investor-state dispute settlement mechanism under Chapter 11 of NAFTA: Articles 1116-17 of NAFTA entitled "Claim by an Investor of a Party ..." limits the jurisdiction of NAFTA arbitration tribunals to claims of violation of Section A of NAFTA Chapter 11 and NAFTA Articles 1503(2) and 1502(3)(a); in contrast, Article 1131 of NAFTA, entitled "Governing Law" sets out the broader scope of the applicable law to be considered in examining the validity of those enumerated NAFTA claims ("A Tribunal established under this Section shall decide the issues in dispute in accordance with this Agreement [that is, all NAFTA provisions] and applicable rules of international law"; emphasis added).
27. Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. US), Provisional Measures, ICJ Reports 1992 114, para. 42 (14 April).
28. See, e.g., Joel Trachtman, The Domain of WTO Dispute Resolution, 40 Harvard Int'l L.J. (1999), 333, at 342 (stating that the explicit language in the DSU "would be absurd if rights and obligations arising from other international law could be applied by the DSB", and that "... with so much specific reference to the covered agreements as the law applicable in WTO dispute resolution, it would be odd if the members intended non-WTO law to be applicable").
29. See the case law summarized in the references at notes 2, 3 and 14 above. As a matter of fact, Panels had little choice but to apply certain rules of general international law. Or should they have re-invented from scratch rules on, e.g., burden of proof, good faith, pacta sunt servanda, etc.? As stated in a recent award under the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention):
30. "It should go without saying that the first duty of the Tribunal is to apply the OSPAR Convention. An international tribunal, such as this Tribunal, will also apply customary international law and general principles unless and to the extent that the Parties have created a lex specialis. Even then, it must defer to a relevant jus cogens with which the Parties' lex specialis may be inconsistent" (Permanent Court of Arbitration, Dispute Concerning Access to Information under Article 9 of the OSPAR Convention (Ireland v. United Kingdom), Final Award, 2 July 2003, para. 84 at ).
31. Confirmed in the WTO by the Panel Report on Korea - Measures Affecting Government Procurement, WT/DS163/R, adopted 19 June 2000, para. 7.96
32. ("Customary international law applies generally to the economic relations between the WTO Members. Such international law applies to the extent that the WTO treaty agreements do not "contract out" from it. To put it another way, to the extent there is no conflict or inconsistency, or an expression in a covered WTO agreement that implies differently, we are of the view that the customary rules of international law apply to the WTO treaties and to the process of treaty formation under the WTO") and the Appellate Body Report on United States - Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan, WT/DS184/AB/R, adopted 23 August 2001, para. 60 and footnote 40
33. ("We observe that the rules of treaty interpretation in Articles 31 and 32 of the Vienna Convention apply to any treaty, in any field of public international law, and not just to the WTO agreements"; "It might be possible for the parties to a treaty expressly to agree that the rules of treaty interpretation in Articles 31 and 32 of the Vienna Convention do not apply, either in whole or in part, to the interpretation of a particular treaty. Likewise, the parties to a particular treaty might agree upon rules of interpretation for that treaty that differ from those rules of interpretation in Articles 31 and 32 of the Vienna Convention. But this is not the case here").
34. For a confirmation by other courts and tribunals: Georges Pinson case, Franco-Mexican Commission (Verzijl, President), A.D. 1927-8, No. 292, para. 50 ("Every international convention must be deemed tacitly to refer to general principles of international law for all questions which it does not itself resolve in express terms and in a different way");
35. Chorzow Factory (Merits), PCIJ, Ser. A, no. 17, 29 (1928) ("Reparation is the indispensable complement of a failure to apply a convention, and there is no necessity for this to be stated in the convention itself"); Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), Advisory Opinion, ICJ Reports 1971, 16, para. 96 ("it would be necessary to show that the mandates system ... excluded the application of the general principle of law that a right of termination on account of breach must be presumed to exist in respect of all treaties"); Elettronnica Sicula S.p.A (ELSI) case, ICJ Reports 1989, 42, para. 50
36. (in respect of the obligation to exhaust local remedies, "the Chamber finds itself unable to accept that an important principle of customary international law should be held to have been tacitly dispensed with, in the absence of any words making clear an intention to do so"); and Permanent Court of Arbitration, Dispute Concerning Access to Information under Article 9 of the OSPAR Convention (Ireland v. United Kingdom), Final Award quoted in note 18 above.
37. A provision repeated in Article 19.2 of the DSU.
38. In support of this position, see, e.g., McGinnis, as note 3 above.
39. For Professor McGinnis, WTO rules can only be affected by amendment, interpretation and waiver procedures in the WTO treaty itself; not by other international rules, created outside the WTO, even if those rules have been agreed to and are binding on the disputing WTO Members. He thus posits the WTO treaty as a completely self-contained regime, de-linked from other treaties and custom, and obscures the fact that treaty relations between states cannot only be affected pursuant to, for example, the amendment procedures in the particular treaty, but also by the conclusion of other treaties which (though not amending the prior treaty) may modify it as between the parties to the new treaty (Vienna Convention on the Law of Treaties, Articles 41 and 58, see notes 23 and 24 below). He does so based on arguments that the WTO treaty has more legitimacy and "greater broad consensus" (p. 42).
40. Although this may be true when comparing the WTO treaty to custom (see note 107 below), it does not apply to the interaction between the WTO treaty and other, non-WTO treaties. Rather than preserve the sovereign will of WTO Members, not to give affect to such other treaties would undermine state sovereignty and the democratic legitimacy of WTO rules. It would transform the WTO into a trade-only safe heaven, unaffected by other, equally valid expressions of state will enshrined in, for example, international human rights or environmental treaties (making available an exit option not only amongst branches of international law, but also from domestic law). However, this may well be the very objective of Professor McGinnis' position when he states (at p. 36) that "... the WTO represents a comprehensive code for the overriding purpose of expanding trade. Therefore, it is not amenable to supplementation by other rules with other objectives that will detract from this purpose."
41. Marceau, as note 2 above;
42. Gabrielle Marceau, Conflicts of Norms and Conflicts of Jurisdictions, The Relationship between the WTO Agreement and MEAs and other Treaties, 35 J.W.T. 6 (December 2001), 1081-1131;
43. Gabrielle Marceau, WTO Dispute Settlement and Human Rights, 13 E.J.I.L. 4 (September 2002), 753;
44. David Palmeter and Petros Mavroidis, The WTO Legal System: Sources of Law, A.J.I.L. (1998), 398-413;
45. and Lorand Bartels, The Human Rights Clause in the International Agreements of the European Community, doctoral thesis, April 2002, p. 366, footnote 723 (on file with the author).
46. A distinction must be made, however, between, on the one hand, an agreement whose conclusion is explicitly prohibited in the WTO treaty (such as voluntary export restraints under Article 11 of the Safeguards Agreement) and, on the other hand, non-WTO rules that simply contradict rules in the WTO treaty (say, an agreement in which the right of appeal is waived, contrary to Article 17 of the DSU or an agreement permitting trade restrictions otherwise not permitted under GATT Article XX). The former agreement is "illegal" (Article 41.1(b) of the Vienna Convention does not permit the inter se modification of a multilateral treaty if such modification is "prohibited by the treaty") and cannot, therefore, be applied in any event; the latter rules are "legal" but conflict with WTO rules and the question is then which of the two rules - the WTO norm or the other norm - prevails in the specific circumstances of the case.
47. Article 41.1(b)(i) of the Vienna Convention on the Law of Treaties prohibits the inter se modification of a treaty in case it "affect[s] the enjoyment by the other parties of their rights under the treaty or the performance of their obligations". The general principle of pacta tertiis nec nocent nec prosunt is stated in Article 34 of the Vienna Convention.
48. Articles 48±52 of the Vienna Convention.
49. On those conflict rules of international law, see Pauwelyn, as note 1 above.
50. On the interaction between WTO dispute settlement and dispute settlement under regional trade agreements, see Gabrielle Marceau and Kyung Kwak, Overlaps and Conflicts of Jurisdiction between the WTO and RTAs, Conference on Regional Trade Agreements, WTO, 26 April 2002, at p. 8, to be found at ;
51. and Joost Pauwelyn, Going Global or Regional or Both? Dispute Settlement in the Southern African Development Community (SADC) and Overlaps with Other Jurisdictions in particular that of the WTO, Minnesota J. Global Trade (2004, forthcoming).
52. That WTO Panels as well as the Appellate Body have the jurisdiction to decide on their own jurisdiction is firmly established. The Appellate Body referred to the "widely accepted rule that an international tribunal is entitled to consider the issue of its own jurisdiction on its own initiative, and to satisfy itself that it has jurisdiction in any case that comes before it" (Appellate Body Report, United States - Anti-Dumping Act of 1916, WT/DS136/AB/R, WT/DS162/AB/R, adopted 26 September 2000, footnote 30).
53. In the Appellate Body Report on Mexico - Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the United States - Recourse to Article 21.5 of the DSU by the United States (WT/DS132/AB/RW, adopted 21 November 2001, at para. 37), it was stated that Panels must check the question of their own jurisdiction at their own initiative ("Panels cannot simply ignore issues which go to the root of their jurisdiction ... Rather, Panels must deal with such issuesDif necessary, on their own motion - in order to satisfy themselves that they have authority to proceed".
54. Australia - Subsidies Provided to Producers and Exporters of Automotive Leather, Recourse by the United States to Article 21.5 of the DSU, WT/DS126/8, 4 October 1999.
55. India - Quantitative Restrictions on Imports of Agricultural, Textiles and Industrial Products, Notification of Mutually Agreed Solution, WT/DS96/8, 6 May 1998.
56. Panel Report, India - Measures Affecting the Automotive Sector ("India - Autos"), WT/DS146/R and Corr.1, WT/DS175/R and Corr.1, adopted 5 April 2002, at para. 4.30.
57. Ibid., para. 4.32, and note 71 below.
58. Ibid., para. 7.116.
59. See Qingjiang Kong, Can the WTO Dispute Settlement Mechanism Resolve Trade Disputes Between China and Taiwan?, J.I.E.L. (2002), 747-758, at 755.
60. Article 42.1 of the Cartagena Agreement establishing the Andean Community - which is made up of Bolivia, Colombia, Ecuador, Peru and VenezuelaDstates the following: Member countries shall not submit any dispute that may arise from the application of provisions comprising the legal system of the Andean Community to any court, arbitration system or proceeding whatsoever except for those stipulated in this Treaty.
61. See, in particular, the exclusive jurisdiction clause often included in investment or concessions contracts in favour of the domestic courts of the host state and how such clauses may play out against the compulsory jurisdiction of international arbitration tribunals granted under an investment treaty, discussed, inter alia, in the ICSID case Compania de Aguas del Aconquija S.A. & Vivendi Universal v. Argentine Republic, 40 ILM 426 (2001), and 41 ILM 1135 2002), at para. 98: "In a case where the essential basis of a claim brought before an international tribunal is a breach of contract, the [international] tribunal will give effect to any valid choice of forum clause in the contract".
62. On the general question of overlapping jurisdictions, see Yuval Shany, The Competing Jurisdictions of International Courts and Tribunals (Oxford: Oxford University Press, 2003);
63. Vaughan Lowe, Overlapping Jurisdiction in International Tribunals, 20 Australian Yearbook of International Law (2000) 1, at 13, and the references at note 27 above.
64. Order of 3 December 2001, at , Case No. 10.
65. Order No. 3 of 24 June 2003, at , p. 8, para. 26.
66. The European Commission actually initiated infringement procedures under the EC Treaty against Ireland claiming that Ireland's initiation of the Mox Plant case under UNCLOS (as well as the OSPAR Convention) violates Ireland's obligations under the EC Treaty (Ireland Threatened over Sellafield Row, The Independent, 29 June 2003).
67. Order No. 3 of 24 June 2003, p. 9, para. 28.
68. Ibid.
69. Ibid., p. 9, para. 30. Note, in contrast, the Award under the OSPAR Convention (quoted in note 18 above) where jurisdiction was found, notwithstanding overlaps with EC treaties and directives. However, in that case the United Kingdom did not press its defence under EU law as hard as it did in the UNCLOS Mox Plant dispute. Yet, in my view, the OSPAR Tribunal, as well, should, like the UNCLOS Tribunal, have suspended its proceedings until further clarification was offered by EC institutions on the matter of overlap with EU law and potential exclusive competences of the EC.
70. See Case 22/70, Commission v. Council (ERTA): ". . . each time the Community, with a view to implementing a common policy envisaged by the Treaty, adopts provisions laying down common rules, whatever form these may take, the Member States no longer have the right, acting individually or even collectively, to undertake obligations with third countries which affect those rules" ([1971] ECR 263, para. 17).
71. Ibid., at para. 18: "As and when such common rules come into being, the Community alone is in a position to assume and carry out contractual obligations toward third countries affecting the whole sphere of application of the Community legal system".
72. See Opinion 1/94, Competence of the Community to conclude international agreements concerning services and the protection of intellectual property, [1994] ECR Page I-05267.
73. Every international agreement entered into by the EC becomes, from its entry into force, an integral part of EC law (Case 181/73, Haegeman v. Belgium, [1974] ECR 449, at para. 5;
74. and Opinion 1/91, [1991] ECR I-6079, at para. 37.
75. Crucially in this respect, WTO Panels, like all other international tribunals, have the incidental jurisdiction "to interpret the submissions of the parties" in order to "isolate the real issue in the case and to identify the object of the claim" (Nuclear Test cases, ICJ Reports 1974, 262, para. 29, and 466, para. 30
76. and Fisheries Jurisdiction case (Spain v. Canada), ICJ Reports 1998, 437). Based on these powers, the WTO Panel may find that the dispute is not only one under WTO covered agreements, but also one "concerning the interpretation or application of [the EC] Treaty".
77. This issue of the enforcement of WTO obligations by the ECJ as between two EU members (or at the request of the Commission against an EU member) - confirmed in, e.g., Commission v. Germany, C-61/94, Jur., 1996, I-3989, r.o. 52 - must be distinguished from the general lack of direct effect of WTO law as it can be invoked before the ECJ by private parties or against the EC (Portugal v. Council, 1999 ECR I-8395).
78. In support: Decision on annulment in Compania de Aguas del Aconquija S.A. & Vivendi Universal v. Argentine Republic, 41 ILM 1135 (2002), at para. 105: "it is one thing to exercise contractual jurisdiction (arguably exclusively vested in the administrative tribunals of Tucuman by virtue of the Concession Contract) and another to take into account the terms of a contract in determining whether there has been a breach of a distinct standard of international law, such as that reflected in Article 3 of the BIT".
79. The suspension of WTO Panel proceedings at the request of the complainant is dealt with in Article 12.12 of the DSU.
80. NAFTA Article 2005, para. 1 (entitled "GATT Dispute Settlement") reads: "Subject to paras 2, 3 and 4, disputes regarding any matter arising under both this Agreement and the General Agreement on Tariffs and Trade, any agreement negotiated thereunder, or any successor agreement (GATT), may be settled in either forum at the discretion of the complaining Party" (emphasis added).
81. Ibid., paras 3-5.
82. Ibid., para. 6: "Once dispute settlement procedures have been initiated under Article 2007 or dispute settlement proceedings have been initiated under the GATT, the forum selected shall be used to the exclusion of the other unless a Party makes a request pursuant to paragraph 3 or 4" (emphasis added).
83. See also the so-called "fork in the road" provision in many bilateral investment treaties, offering a choice to investors to either submit disputes to the domestic courts of the host state or international arbitration, but stating explicitly that once an avenue is chosen, it is to the exclusion of the other (see, e.g., Compania de Aguas del Aconquija S.A. & Vivendi Universal v. Argentine Republic, 40 ILM 426 (2001), and 41 ILM 1135 (2002), in particular, at paras 55, 60 and 113).
84. Panel Report, Argentina - Definitive Anti-Dumping Duties on Poultry from Brazil, WT/DS241/R, adopted on 19 May 2003 (not appealed), para. 7.38.
85. Ibid. On Argentina's claim that Brazil was estopped from bringing the same matter to the WTO after bringing it to MERCOSUR, see text at note 81 below.
86. Interestingly, in this respect, the Japan-Singapore Economic Partnership Agreement (JSEPA) adds a third condition to be fulfilled before the invocation of one procedure excludes the other (not present under either NAFTA or MERCOSUR), namely the exclusion does not apply "if substantially separate and distinct rights or obligations under different international agreements are in dispute" (Chapter 21, Article 139.3). This may, indeed, be a wise addition in order to avoid exclusion in case the substantive claims under both procedures are markedly different. At the same time, it adds a complexity in that it will then be for the second Panel or tribunal to decide whether the procedure before it raises "substantially separate and distinct rights or obligations".
87. Along the same lines, see Compania de Aguas del Aconquija S.A. & Vivendi Universal v. Argentine Republic, 40 ILM 426 (2001), and 41 ILM 1135 (2002), at para. 113, referred to in note 53 above.
88. See, e.g., the dispute settlement mechanism under the Protocol on Trade of the Southern African Development Community (SADC), discussed in Pauwelyn, as note 27 above.
89. See the records of this ongoing case at .
90. Nicaragua - Measures Affecting Imports from Honduras and Colombia, WTO documents WT/DS188/2 and WT/DS202/1 (although a Panel was established on this matter, its proceedings have been suspended by mutual agreement).
91. WTO document WT/DS193 (suspended by mutual agreement on 23 March 2001).
92. Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile v. Eur. Com.) (15 March 2001), at (currently suspended on the basis of a provisional arrangement).
93. Jurisdiction and Admissibility, ICJ Reports 1984, para. 73, and Merits, ICJ Reports 1986, para. 175.
94. ILM 426 (2001), at paras 53-54.
95. OSPAR refers to the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention).
96. The Tribunal explained its approach as follows: "[T]he Tribunal does not consider that this [relevance of the OSPAR Convention] alters the character of the dispute as one essentially involving the interpretation and application of the [UNCLOS] Convention. Furthermore, the Tribunal is not persuaded that the OSPAR Convention substantially covers the field of the present dispute" (Order No. 3 of 24 June 2003, at , p. 6, para. 18). Subsequently, the OSPAR Tribunal issued its own Final Award, notwithstanding the concurrent UNCLOS proceeding, see note 18 above.
97. This situation was acknowledged, for example, in the Decision on Annulment in Compania de Aguas del Aconquija S.A. & Vivendi Universal v. Argentine Republic. Faced with a situation that gave rise to claims under both a bilateral investment treaty (for which ICSID had jurisdiction) and a domestic concession contract (for which domestic courts had exclusive jurisdiction), the Committee found as follows, at paras 98 and 101: "In a case where the essential basis of a claim brought before an international tribunal is a breach of contract, the [international] tribunal will give effect to any valid choice of forum clause in the contract. . . . On the other hand, where 'the fundamental basis of the claim' is a treaty laying down an independent standard by which the conduct of the parties is to be judged, the existence of an exclusive jurisdiction clause in a contract between the claimant and the respondent state . . . cannot operate as a bar to the application of the treaty standard."
98. UNCLOS Article 282 does, for example, provide for a conflict rule, making UNCLOS jurisdiction subject to certain dispute settlement procedures under other treaties.
99. Imagine that the complainant makes a non-violation complaint under GATT Article XXIII:1(b) arguing that the defendant has nullified its tariff concessions on, for example, the import of footballs, by suddenly no longer complying with the ILO prohibition on child labor in its domestic production of footballs (making it harder for the complainant to compete). Can the complainant rely on these non-WTO rules even if this would imply that the WTO Panel would first have to find a violation of ILO obligations before it could accept the complainant's nonviolation case under WTO rules? Here, the WTO complaint could be said to no longer concern WTO claims but rather ILO claims so that the Panel could find that it has no jurisdiction to hear the case.
100. See note 47 above on the power of international tribunals to "re-define" a dispute. It was on these grounds that the ICSID Tribunal in Compania de Aguas del Aconquija S.A. & Vivendi Universal v. Argentine Republic (40 ILM 426 (2001), at p. 3 of the Award), though having accepted jurisdiction over Vivendi's claims, refused to make findings on the merits: ". . . the nature of the facts supporting most of the claims presented in this case make it impossible for the Tribunal to distinguish or separate violations of the BIT from breaches of the Concession Contract without first interpreting and applying the detailed provisions of that agreement. By Article 16.4, the parties to the Concession Contract assigned that task expressly and exclusively to the contentious administrative courts of Tucumaán. Accordingly, and because the claims in this case arise almost exclusively from alleged acts of the Province of Tucumaán that relate directly to its performance under the Concession Contract, the Tribunal holds that the Claimants had a duty to pursue their rights with respect to such claims against Tucumaán in the contentious administrative courts of Tucumaán as required by Article 16.4 of their Concession Contract". This Tribunal finding was, however, subsequently (and, based on the facts, in my view correctly) overruled by the Annulment Committee (41 ILM 1135 (2002), at paras 115 and 105, quoted in note 49 above).
101. Advocating that WTO Panels decline jurisdiction in certain cases where non-WTO rules are at stake, see Marceau, as note 22 above, 1081. Note the difference between this second reason to reject jurisdiction (no jurisdiction to begin with, since no WTO claims at issue) and the earlier, first reason to reject jurisdiction (a conflict between two rules conferring jurisdiction to different tribunals decided, as the case may be, in favor of the non-WTO tribunal).
102. ICJ Reports 1998, 437.
103. Southern Bluefin Tuna case (Australia and New Zealand v. Japan, Jurisdiction and Admissibility), Arbitral Tribunal constituted under Annex VIII of UNCLOS, posted at , paras 52 and 54.
104. See Pauwelyn, as note 27 above.
105. See Vaughan Lowe, Res Judicata and the Rule of Law in International Arbitration, 8 African J. Int'l L. (1996), 38, at 40.
106. Appellate Body report on EC-Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India, Recourse to Article 21.5 of the DSU by India, WT/DS141/AB/RW, 8 April 2003, para. 93.
107. For a discussion of the res judicata effect of WTO Panel reports, see also the Panel Report on India - Autos, as note 31 above.
108. Appellate Body report on United States - Import Prohibition of Certain Shrimp and Shrimp Products, Recourse to Article 21.5 of the DSU by Malaysia, WT/DS58/AB/RW, 22 October 2001, paras 92-96.
109. See Lowe, as note 75 above.
110. Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) [1967] A.C. 853 at 935 (per Lord Guest).
111. E. Scoles et al., Conflict of Laws (3rd edn: Westgroup, 2000), p. 1141.
112. Panel report on Argentina - Definitive Anti-Dumping Duties on Poultry from Brazil, WT/DS241/R, adopted on 13 May 2003 (not appealed), paras 7.37 ff.
113. Ibid., footnote 53.
114. Ibid., footnote 58.
115. Ibid., para. 7.38.
116. Award by the Ad Hoc MER COSUR Tribunal (Brazil v. Argentina) concerning the Application of Anti-dumping Measures on the Export of Poultry from Brazil, 21 May 2001, at .
117. See, e.g., Appellate Body Report, EC - Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, DSR 1998:I, 135.
118. See, e.g., Panel Report, United States - Section 110(5) of the US Copyright Act, WT/DS160/R, adopted 27 July 2000 (not appealed).
119. See, e.g., Panel Report, Canada - Export Credits and Loan Guarantees for Regional Aircraft, WT/DS222/R and Corr.1, adopted 19 February 2002 (not appealed).
120. The Fourth ACP-EEC Convention of Lome, Decision of the CONTRACTING PARTIES of 9 December 1994, L/7604, 19 December 1994.
121. Waiver decision, WTO document G/C/W/432/Rev. 1, dated 24 February 2003, referred to in the Decision by the WTO General Council at its meeting on 15-16 May 2003 (WTO document WT/GC/W/498, dated 13 May 2003, Item VI), adopted by consensus.
122. See also Joost Pauwelyn, What to Make of the WTO Waiver on Conflict Diamonds: WTO Compassion or Superiority Complex?, Michigan J. Int'l L. (2003, forthcoming).
123. See the Appellate Body Report, European Communities - Regime for the Importation, Sale and Distribution of Bananas ("EC - Bananas III"), WT/DS27/AB/R, adopted 25 September 1997, DSR 1997:II, 591.
124. Ibid.
125. See Appellate Body Report on EC - Hormones, as note 86 above.
126. See note 88 above.
127. See note 90 above.
128. The ILO recommended that ILO members "review, in the light of the conclusions of the Commission of Inquiry [which had found the serious violations of the Forced Labor Convention], the relations that they may have with the member State concerned [Myanmar] and take appropriate measures to ensure that the said Member cannot take advantage of such relations to perpetuate or extend the system of forced or compulsory labor referred to by the Commission of Inquiry, and to contribute as far as possible to the implementation of its recommendations made." Resolution of the International Labour Conference (88th session, 2000) at .
129. In the United States, see the Burmese Freedom and Democracy Act 2003, H.R. 2330, 108th Congress (2003).
130. Even if the case can be made also that the embargo is justified already under GATT itself (e.g. under GATT Artsicles XX and/or XXI).
131. The EC, e.g., often includes such provisions in its agreements with third states, see Bartels, Human Rights Clause, as note 22 above.
132. See, however, the caveat below at note 105.
133. See notes 6 and 7 above.
134. Imagine that the United States and Malaysia had settled the Shrimp-Turtle dispute and agreed, among other things, that the United States can continue the imposition, as against Malaysia, of otherwise WTO inconsistent measures. Should a WTO Panel, subsequently constituted at the request of Malaysia to strike down these very US measures, not take account also of this bilateral settlement and on that basis decline to find aWTO violation? In my view, it should. This position implies the qualification of WTO obligations as essentially bilateral obligations, see Joost Pauwelyn, A Typology of Multilateral Treaty Obligations, Are WTO Obligations Collective or Bilateral in Nature?, E.J.I.L. (2003, forthcoming).
135. On the definition of "conflict", see Pauwelyn, as note 2 above.
136. See the Panel and/or Appellate Body interpretations of (i) the Lome Convention in EC - Bananas, as note 87 above;
137. (ii) the Berne Convention in US - Copyright, as note 87 above;
138. (iii) international Codex Alimentarius standards in EC - Hormones, as note 86 above;
139. and especially in European Communities - Trade Description of Sardines, WT/DS231/R and AB/R, adopted on 23 October 2002;
140. (v) the OECD arrangement on export credits, in Canada - Export Credits, as note 88 above;
141. (v) environmental conventions and declarations in US - Shrimp, as note 2 above;
142. and (vi) the precautionary principle in EC - Hormones, as note 86 above.
143. Article 38.1(b) of the Statute of the International Court of Justice.
144. Appellate Body Report, EC - Measures Concerning Meat and Meat Products (Hormones) ("EC - Hormones"), WT/DS26/AB/ R, WT/DS48/AB/R, adopted 13 February 1998, DSR 1998:I, 135, at para. 123:
145. "The precautionary principle is regarded by some as having crystallized into a general principle of customary international environmental law. Whether it has been widely accepted by Members as a principle of general or customary international law appears less than clear. We consider, however, that it is unnecessary, and probably imprudent, for the Appellate Body in this appeal to take a position on this important, but abstract, question". For a critique, see Pauwelyn, as note 3 above, at pp. 569-570
146. and as note 1 above, at 481-482.
147. See, e.g., Nancy Kontou, The Termination and Revision of Treaties in the light of New Customary International Law (New York: Oxford University Press, 1994);
148. and the references in Pauwelyn, as note 3 above, pp. 94-97.
149. Contra: McGinnis, as note 3 above, arguing that "... global multilateral agreements should dominate customary international law because they rest on a more certain consensus and have fewer agency costs" (p. 42) and even "skeptical that [the] substantive aspects [of custom that is part of jus cogens] should have priority over global multilateral treaties" (note 137).
150. While this author has previously argued (see note 106 above and note 108 below) - and hence agrees with Professor McGinnis - that, in practice, and in the particular context of the WTO, it will be extremely rare for subsequent custom to overrule WTO treaty provisions, this should not, however, mean that the starting principle of absence of hierarchy between treaty and custom in the wider field of public international law is no longer valid.
151. For a full discussion, see Pauwelyn, as note 3 above, at pp. 131-143.
152. See, in particular, McGinnis, as note 3 above, discussed also at notes 21 and 107 above.
153. See note 99 above.
154. Recall, in this respect, that the WTO waiver on conflict diamonds can be invoked only for trade restrictions on non-participants; it does not operate in the WTO relationship as between two participants to the scheme. See note 99 above.
155. See, e.g., the bilateral settlement in India - Quantitative Restrictions, as note 30 above.
156. See text at note 50 above.
157. See note 104 above, and recall, in this respect, the position expressed in the text at note 49 above.
158. These four are: Abi-Saab (expert in public international law, especially international human rights and international criminal law); Tanaguchi (expert in civil procedure); Lockhart (former judge in Australia); and Sacerdoti (public international law, focusing on international investment).
159. See Joost Pauwelyn, The Use of Experts in WTO Dispute Settlement, 51 I.C.L.Q. (2002), 325.
160. As done by the UNCLOS Arbitration Tribunal in the Mox Plant case, as note 14 above, discussed at notes 39 and 50 above.
161. See Article 234 of the EC Treaty, setting out the procedure under which national courts can request preliminary rulings from the ECJ on matters of EU law. A national court must thus refer to the ECJ "if it considers that a decision on the question [under EU law] is necessary to enable it to give judgment".