Dispelling the chimera of 'self-contained regimes' International Law and the WTO

European Journal of International Law

Volumn 16, Issue 5, 2005, Pages 857-877

  Lindroos, Anja ^a   Mehling, Michael ^b  

^a UNIVERSITY OF HELSINKI   (Finland)

^b UNIVERSITY OF GREIFSWALD   (Germany)

Author keywords

[No Author keywords available]

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EID: 31544461274     PISSN: 09385428     EISSN: None     Source Type: Journal    
DOI: 10.1093/ejil/chi148     Document Type: Review

References (162)

1. Report of the International Law Commission, UN Official Records of the General Assembly, 55th session, Supp. 10, UN Doc. A/55/10 (2000), para. 729.
2. Report of the Study Group on Fragmentation of International Law, UN Doc. A/CN.4/L.628 (2002), paras. 4-6.
3. M. Koskenniemi, Study on the Function and Scope of the Lex Specialis Rule and the Question of 'Self-Contained Regimes', UN Doc. ILC(LVI)/SG/ FIL/CRD.1/Add.1 (2004).
4. Ibid., at para. 134.
5. Different views on this issue are presented below, 7.
6. General Agreement on Tariffs and Trade (GATT), 55 UNTS (1947) 188.
7. Weiler, 'The Rule of Lawyers and the Ethos of Diplomats: Reflections on the Internal and External Legitimacy of WTO Dispute Settlement', 35 J World Trade (2001) 193.
8. Pauwelyn, 'The Role of Public International Law in the WTO: How Far Can We Go?', 95 AJIL (2001) 538 (emphasis in the original)
9. this assessment is shared by Howse, 'From Politics to Technocracy - and Back Again: The Fate of the Multilateral Trade Regime', 96 AJIL (2002) 98.
10. Dispute Settlement Understanding (DSU), 33 ILM(1994) 1144.
11. See Arts. 16(4) and 17(14) of ibid.
12. Pauwelyn, supra note 8, at 553.
13. Bartels, 'Applicable Law in WTO Dispute Settlement Proceedings', 35 J World Trade (2001) 501
14. and, more recently, J. Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to other Rules of International Law (2003), at 460-463.
15. See Arts. 1(1), 3(2), 7(1), and 11 of the DSU, supra note 9.
16. As the Appellate Body summarized in Brazil - Measures Affecting Desiccated Coconut, WTO Doc. WT/DS22/AB/R (1997), at 11, '[t]he "covered agreements" include the WTO Agreement, the Agreements in Annexes 1 and 2, as well as any Plurilateral Trade Agreement in Annex 4 where its Committee of signatories has taken a decision to apply the DSU (italics in the original).
17. Compétence de la compétence, suggested by the Appellate Body in United States - Anti Dumping Act of 1916, WTO Doc. WT/DS136/AB/R (2000), at para. 54 note 30.
18. Legal grounds for refraining from substantive jurisdiction have been provided by the principle of judicial economy, referred to in United States - Measures Affecting Imports of Woven Wool Shirts and Blouses, WTO Doc. WT/DS33/AB/R (1997), at 19
19. similarly, as the panel in United States - Sections 301-310 of the Trade Act of 1974, WTO Doc. WT/DS152/R (2000), at para. 7.43, chose to interpret Art. 23(1) of the DSU, 'Members have to have recourse to the DSU dispute settlement system to the exclusion of any other system, in particular a system of unilateral enforcement of WTO rights and obligations', referring to the same provision as an 'exclusive dispute resolution clause'.
20. 'Applicable', in this context, refers to direct validity when determining the merits of a claim, interpreting the covered agreements, and establishing evidence of facts: See Bartels, supra note 12, at 510-511, who provides ample references;
21. the mere consideration of international law as part of the interpretation of trade rules is not at issue here, given the express reference in Art. 3(2) of the DSU: See infra, notes 21 and 33.
22. See, inter alia, J. H. Jackson, The World Trading System: Law and Policy of International Economic Relations (1997), at 25.
23. On this fundamental doctrine of international law, see A. D. MacNair, The Law of Treaties (1961), at 466
24. this view has also been upheld, inter alia, by the Permanent Court of International Justice in Case Concerning the Factory at Chorzów [1928] PCIJ Series A, No. 17, 29, and the International Court of Justice in Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) [1971] ICJ Rep 16, at para. 96.
25. In United States- Standards for Reformulated and Conventional Gasoline, WTO Doc. WT/DS2/AB/R (1996), at 17, the Appellate Body acknowledged that 'the General Agreement [GATT] is not to be read in clinical isolation from public international law';
26. similarly, in Korea - Measures Affecting Government Procurement, WTO Doc. WT/DS163/R (2000), at para. 7.96, the panel established that '[c]ustomary 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'.
27. Art. 3(2) of the DSU, for instance, establishes the relevance of 'customary rules of interpretation of public international law', which has been held by the Appellate Body in United States - Reformulated Gasoline, supra note 20, at 17, to refer to Arts. 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT), 1155 UNTS (1969) 331.
28. See Indonesia - Certain Measures Affecting the Automobile Industry, WTO Doc. WT/DS54/R 23 (1998), at para. 14.28 and note 649.
29. The widely used expression 'self-contained regime' is misleading: See Koskenniemi, supra note 3, at para. 134
30. for additional discussion, see Simma, 'Self-Contained Regimes' [1985] Netherlands Yearbk Int'l L 111-136.
31. See also Case concerning the United States Diplomatic and Consular Staff in Tehran [1980] ICJ Rep 41, and Case of the SS 'Wimbledon' [1923] PCIJ Series A, No. 1, at 23-24.
32. See Arts. 3(2) ('providing security and predictability to the multilateral trading system' and preserving 'the rights and obligations of Members under the covered agreements'), 3(3) (protecting the 'benefits accruing to it directly or indirectly under the covered agreements' and maintaining the 'proper balance between the rights and obligations of Members'), 7(1) and (2) (especially calling for examination of the matter 'in the light of the relevant provisions' of the covered agreements, and obliging panels to 'address the relevant provisions in any covered agreement or agreements cited by the parties to the dispute'), and 11 (panels serve the function of assessing 'the applicability of and conformity with the relevant covered agreements') of the DSU.
33. See, notably, Canal-Forgues, 'Sur l'interprétation dans le droit de l'OMC', 105 Revue Générale de Droit International Public (2001) 11
34. Charney, 'Is International Law Threatened by Multiple International Tribunals?', 271 Recueil des Cours (1998) 219
35. Marceau, 'A Call for Coherence in International Law: Praises for the Prohibition Against "Clinical Isolation" in WTO Dispute Settlement', 33 J World Trade (1999) 110.
36. See, for instance, Trachtman, 'The Domain of WTO Dispute Resolution', 40 Harvard Int'l LJ (1999) 342
37. this appears fairly questionable in view of the reasoning in Korea - Government Procurement, supra note 20, at para. 7.96, note 753: '[w]e should also note that we can see no basis here for an a contrario implication that rules of international law other than rules of interpretation do not apply. The language of 3.2 in this regard applies to a specific problem that had arisen under the GATT to the effect that, among other things, reliance on negotiating history was being utilized in a manner arguably inconsistent with the requirements of the rules of the rules of treaty interpretation of customary international law'.
38. Howse, supra note 8, at 106.
39. Bartels, supra note 12, at 506-509.
40. Petersmann, 'The WTO Constitution and Human Rights', 3 J Int'l Economic L (2000) 19.
41. Bartels, supra note 12, at 508-509.
42. Guatemala - Anti-Dumping Investigation Regarding Portland Cement from Mexico, WTO Doc. WT/DS60/AB/R (1998), at para. 65
43. more generally, see S. Sadat-Akhavi, Methods of Resolving Conflicts between Treaties (2003), at Ch. 1 ('The Concept of Conflict').
44. What is more, the existence of a general presumption against conflict in international has been proposed: See, for instance, R. Jennings and A. Watts, Oppenheim's International Law, vol. 1: Peace (1992), at 1275
45. and indeed, positivist theorists such as H. Kelsen would altogether deny the possibility of conflict in a legal system, describing them, instead, as 'sham contradictions' to be resolved by means of legal interpretation: Principles of International Law (1952), at 426.
46. Vienna Convention on the Law of Treaties (VCLT), 1155 UNTS (1969) 331
47. the position that Art. 3(2) directly invokes the VCLT was already held by negotiators in the Uruguay Round and is widely accepted: See Croley and Jackson, 'WTO Dispute Procedures, Standards of Review, and Deference to National Governments', 90 AJIL (1996) 200, at note 34.
48. Pauwelyn, supra note 8, at 545.
49. Jackson, 'Fragmentation or Unification Among International Institutions: The World Trade Organization', 31 NYU J Int'l L and Pol (1999) 824.
50. For an in-depth assessment of the failings of these doctrines, see Koskenniemi, supra note 3.
51. Pauwelyn, for instance, has suggested that world trade law is nothing but a branch of international law, given that states cannot altogether contract out of the system of international law: Supra note 12, at 25-40
52. this conclusion is generally shared by Bartels, supra note 12, at 499
53. and Palmeter and Mavroidis, 'The WTO Legal System: Sources of Law', 93 AJIL (1998) 399.
54. While this issue has not yet been addressed specifically in a dispute before the WTO, the Appellate Body has generally stated that 'nothing in the DSU limits the faculty of a panel freely to use arguments submitted by any of the parties - or to develop its own legal reasoning - to support its own findings and conclusions on the matter under its consideration': See European Communities - Measures Concerning Meat and Meat Products (EC- Hormones), WTO Doc. WT/DS26/AB/R, WT/DS48/AB/R (1997), at para. 156.
55. This being, of course, the general consensus in international legal scholarship and practice: See I. Brownlie, Principles of Public International Law (1998), at 3
56. Akehurst, 'The Hierarchy of the Sources of International Law', 47 BYbIL (1974-75) 273
57. see also Arts. 53 and 64 VCLT.
58. And, as Koskenniemi has pointed out, it is not possible to contract out of the pacta sunt servanda principle itself, unless, of course, parties wish to create a regime without any legal effects: Supra note 3, at para. 157.
59. Indeed, the one provision one might understand as somewhat restricting the scope of applicable law, Art. 7(1) of the DSU, which lays down the standard terms of reference and requires panels to 'examine, in the light of the relevant provisions in [the covered agreements], the matter referred to the DSB', was interpreted by the panel in Korea - Government Procurement, supra note 20, at para. 7.101, note 755, as follows: '[w]e do not see any basis for arguing that the terms of reference are meant to exclude reference to the broader rules of customary international law'.
60. On Art. 3(2) of the DSU see supra notes 21 and 33.
61. Such cases have included Brazil - Desiccated Coconut, supra note 14, at 15, regarding non-retroactivity of treaties;
62. European Communities - Regime for the Importation, Sale and Distribution of Bananas, WTO Doc. WT/DS27/R (1997), at paras 6.16, 10, 133, and 164-167, regarding representation, legal standing, countermeasures, and the application of waivers and the Lomé Convention;
63. India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, WTO Doc. WT/DS50/AB/R (1998), at para. 65, regarding the status of municipal law;
64. Korea - Government Procurement, supra note 20, at para. 7.123, regarding treaty formation;
65. United States - Shirts and Blouses, supra note 16, at 14 and 19, regarding burden of proof and judicial economy;
66. United States - Import Prohibition of Certain Shrimp and Shrimp Products, WTO Doc. WT/DS58/R (1998), regarding amicus curiae briefs;
67. US-Anti Dumping, supra note 15, at para. 54 note 30, regarding judicial competence.
68. See Art. 22 of the DSU ('Compensation and the Suspension of Concessions'), supra note 9.
69. See generally Tucker, 'The Principle of Effectiveness in International Law', in G. A. Lipsky (ed.), Law and Politics in the World Community (1953), at 33.
70. With reference to the legitimacy of judicial decisions as a condition of their successful enforcement see Howse, 'The Turtles Panel - Another Environmental Disaster in Geneva', 32 J World Trade (1998) 99.
71. For instance, Art. XVIII (2) of the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES), 993 UNTS (1976) 243, whose ambit may clearly overlap with the rules on free trade, refers to the Permanent Court of Arbitration in The Hague as the body for hearing disputes arising under that convention;
72. on the risk of 'forum shopping' such concurrent jurisdiction may entail see Croley and Jackson, supra note 33, at 194,
73. and generally Charney, supra note 25, at 219.
74. Weiler, supra note 7, at 195.
75. As Howse has contended, the divergent positions encountered in this section are a reflection of the challenges currently faced by the embedded ideology of the world trading system - designated 'embedded liberalism' - and its proponents, with politics, largely excluded hitherto, entering anew by contingent determinations of the trade experts and 'insiders': Supra note 8, at 98.
76. Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations, UN Doc. A/Conf. 129/15 (1986).
77. B. Simma et al., The Charter of United Nations. A Commentary (1994), at 27
78. as both treaties contain identical
79. Arts. 1 and 2(a) VCLT.
80. Art. 2(a) VCLT provides a wide definition of the term 'treaty'. As concerns the nature of the treaty, the VCLT establishes no general limitation for the application of the Convention except for the requirement of written form. No distinction is drawn between whether the treaty is of a contractual or law-making nature, whether it is bilateral or multilateral, and whether it is a constitutional instrument.
81. This view is, for instance, supported by Cameron and Gray, 'Principles of International Law in the WTO Dispute Settlement Body', 50 ICLQ (2001) 252,
82. and Pauwelyn, supra note 12, at 28-29.
83. On 16 Feb. 2005, the WTO had 148 members, while on 23 Mar. 2005, the VCLT had 100 parties.
84. La Grand Case [2001] ICJ Rep 466, at para. 99.
85. See also, e.g., the Case Concerning the Territorial Dispute Libya v Chad [1994] ICJ Rep 6, at para. 41.
86. For further references on the customary law status of both Vienna Conventions see, e.g., Simma et al., supra note 50, at 30.
87. Charney, supra note 25, at 139-188.
88. North Sea Continental Shelf Case [1969] ICJ Rep 4, at 42, para. 472.
89. With a view to world trade law, Pauwelyn has suggested that - in the absence of explicit contracting-out - a tacit acceptance of rules of general international law should be presumed: Pauwelyn, supra note 8, at 541-543.
90. Pauwelyn, for instance, contends that the exclusion of some rules of general international law by the members of the WTO 'does not mean that they have contracted-out of all the rules of general international law': ibid., at 537.
91. Koskenniemi, supra note 3, at para. 153.
92. Ibid.
93. Ibid., at para. 155.
94. Charney, supra note 25, at 145.
95. United States- Restrictions on Imports of Tuna, GATT Doc. DS 29/R (1994), 33 ILM 839 (1994), para. 5.18.
96. US-Reformulated Gasoline, supra note 20, at 16.
97. Ibid, at 16.
98. This finding was confirmed, e.g., in Brazil - Desiccated Coconut, supra note 14, at para. 255,
99. and in European Communities - Measures Affecting the Importation of Certain Poultry Products, WT/DS69/AB/R (1998), at para. 26.
100. US - Reformulated Gasoline, supra note 20, at 21-22
101. see also Cameron and Gray, supra note 53, at 256-258.
102. EC - Hormones, supra note 37, at para. 165,
103. see also Cameron and Gray, supra note 53, at 258-260.
104. United States - Restrictions on Imports of Cotton and Man-Made Fibre Underwear, WT/DS24/R(1996), at para. 7.20
105. see also Cameron and Gray, supra note 53, at 260-263.
106. See Brazil - Export Financing Programme for Aircraft, WT/DS46/R (1999), at paras. 7.39-7.41
107. Turkey - Restrictions on Imports of Textile and Clothing Products, WTO/ DS34/R (1999), at paras. 9.92-9.95
108. and Indonesia - Certain Measures Affecting the Automobile Industry, WT/ DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R (1998), at paras. 14.28-14.34.
109. Whether these are interpretative principles or interpretative aids is subject to debate; see, for instance, I. Sinclair, The Vienna Convention on the Law of Treaties (1984), at 96-97,
110. and A. Aust, Modern Treaty Law and Practice (2000), at 200-201.
111. Canada - Terms of Patent Protection, WT/DS170/AB/R (2000), at paras. 71-74.
112. See, for instance, EC - Poultry Products, supra note 66, at para. 79
113. Japan - Measures Affecting Consumer Photographic, WT/DS44/R (1998), at para. 10.65
114. EC-Hormones, supra note 37, at para. 51.
115. Turkey - Clothing Products, supra note 70, at para. 9.181.
116. Korea - Government Procurement, supra note 20, at paras 7.123-7.126.
117. EC - Poultry Products, supra note 66, para. 79.
118. Brazil - Export Financing Programme of Aircraft, WT/DS46/ARB (2000), at para. 3.10.
119. Canada - Patent Protection, supra note 72, at paras. 71-74
120. Brazil - Measures Affecting Desiccated Coconut, WT/DS22/R (1996), at para. 279.
121. Canada - Patent Protection, supra note 72, at para. 72.
122. Ibid., at para. 73.
123. Korea - Government Procurement, supra note 20, at para. 7.123.
124. Brazil - Aircraft, supra note 76, at para. 3.10.
125. General international law as expressed by customary law and general principles of law; a distinction needs to be drawn between these sources and international treaties, since the latter require consent and apply only to the parties to a particular treaty.
126. EC - Bananas, supra note 42, at 10.
127. US - Anti-Dumping Act, supra note 15, at para. 54, note 30.
128. US - Wool Shirts and Blouses, supra note 16, at 14.
129. India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, WTO Doc. WT/DS50/AB/R (1998), at para. 65.
130. United States - Import Prohibition of Certain Shrimp and Shrimp Products, WTO Doc. WT/DS58/AB/R (1998), at paras. 102-110.
131. Canada - Measures Affecting the Exports of Civilian Aircraft, WTO Doc. WT/DS70/AB/R (1999), at para. 202.
132. US - Wool Shirts and Blouses, supra note 16, Section VI, 21.
133. On the proportionality of countermeasures see European Communities - Regime for the Importation, Sale and Distribution of Bananas, WTO Doc. WT/DS27/ARB (1999), at para. 6.16
134. on the objective of counter-measures, see Brazil - Export Financing Programme for Aircraft, supra note 81, at paras. 3.44-3.45.
135. Turkey - Restrictions on Imports of Textile and Clothing Products, WTO Doc. WT/DS34/AB/R (1999), at paras. 9.33-9.44.
136. EC - Bananas, supra note 90, at para. 10.
137. India - Patent Protection, supra note 86, at paras. 65-66 (emphasis in original).
138. EC - Bananas, supra note 90, at para. 6.16
139. Brazil - Export Financing Programme for Aircraft, WTO Doc. WT/DS46/ARB (2000), at paras. 3.44-3.45
140. and Turkey - Clothing Products, supra note 90, at paras. 9.33-9.44.
141. Brazil - Export Financing Programme for Aircraft, WT/DS46/ARB, 28 Aug. 2000, para. 3.44.
142. United States - Reformulated Gasoline, supra note 20, at 16-17.
143. See supra, at 9-14.
144. Koskenniemi, supra note 3, at para. 157.
145. Pauwelyn, supra note 12, at 25-40,
146. and, more recently, Pauwelyn, 'Bridging Fragmentation and Unity: International Law as a Universe of Inter-Connected Islands', 25 Michigan J Int'l L (2004) 903-916.
147. See supra, at 9-14.
148. Korea - Measures Affecting Government Procurement, WT/DS163/R, 1 May 2000 para. 7.101, note 755
149. Bartels, 'Applicable Law', 35 J World Trade (2001) 502.
150. Ibid., at 504-505.
151. Statute of the International Court of Justice, annexed to UNCIO XV, 335; amendments by General Assembly Resolution in UNTS (1964) 557, 143/638, 308/892, 119.
152. Arguing against a restriction see Pauwelyn, supra note 8, at 652
153. comparing Art. 7 of the DSU to Art. 38 of the ICJ Statute see Palmeter and Mavroidis, supra note 37, at 399.
154. Ibid., at 400-406.
155. Korea - Government Procurement, supra note 20, at para. 7.96, note 753.
156. Ibid., at para. 7.96.
157. US - Reformulated Gasoline, supra note 20, at 17.
158. Marceau, supra note 25, at 95.
159. Chorzów Factory [1927] PCIJ Series A, No. 2, at 21.
160. For an overview, see Shaw and Schwartz, 'Trade and Environment in the WTO: State of Play', 36 J World Trade (2002) 129.
161. In a landmark case on this issue, the Appellate Body invoked several multilateral environmental agreements when interpreting Art. XX (g) of the GATT: See US - Shrimp Products, supra note 87, at para. 130
162. the closest an environmental treaty came to independent application, however, was through mention of its dispute settlement mechanism as a possible forum for the dispute: Ibid., at para. 171.