Unreal federal clauses of the World Trade Organization treaty - A case for removing the "Apparent" limitations on implementation and observance of World Trade Organization commitments at sub-national levels

Journal of World Trade

Volumn 38, Issue 1, 2004, Pages 123-136

  Bhuiyan, Sharif ^a  

^a TRINITY COLLEGE   (United Kingdom)

Author keywords

[No Author keywords available]

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EID: 65749095526     PISSN: 10116702     EISSN: None     Source Type: Journal    
DOI: 10.54648/trad2004005     Document Type: Article

References (80)

1. See, e.g., the Alabama Claims arbitration (1872),
2. John Bassett Moore, History and Digest of the International Arbitrations to which the United States Has Been a Party, Vol. I (Washington D.C.: US Government Printing Office, 1898), pp. 653, 656;
3. and the Headquarters Agreement case, ICJ Reports (1988), 12, at 34 (para. 57).
4. See, e.g., Draft Articles on Responsibility of States for Internationally Wrongful Acts, Article 4, and commentaries to that Article adopted by the International Law Commission in 2001, reproduced in James Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge: Cambridge University Press, 2002), pp. 94-99;
5. and Ian Brownlie, Principles of Public International Law (5th edn, Oxford: Oxford University Press, 1998), p. 451.
6. See, e.g., Crawford, as note 2 above, p. 98.
7. As an example of a federal clause in a "non-WTO" text, see Article 34 of the Convention Concerning the Protection of the World Cultural and Natural Heritage 1972, available at .
8. Two plurilateral agreements have since been terminated.
9. Throughout this article the expressions "GATT 1947" and "General Agreement" are used to refer to the General Agreement on Tariffs and Trade, opened for signature 30 October 1947, 55 UNTS 194, while the expression "GATT 1994" is used to refer to the General Agreement on Tariffs and Trade 1994 as contained in Annex 1A of the WTO Agreement. The acronym "GATT" is used to refer to the de facto institution that came into being under the auspices of the GATT 1947.
10. See WTO Agreement, Article XVI:1.
11. See Doc. EPCT/TAC/PV 19, at 33, quoted in GATT, Analytical Index: Guide to GATT Law and Practice (Geneva: WTO, 1995), p. 830.
12. See also P.J. Kuyper, The Law of GATT as a Special Field of International Law - Ignorance, further refinement or self-contained system of international law?, 25 Netherlands Yearbook Int'l L. (1994), p. 244.
13. Canada - Import, Distribution and Sale of Certain Alcoholic Drinks by Provincial Marketing Agencies (Canada - Alcohol II), adopted 18 February 1992, BISD 39S/27, para. 5.36.
14. See also Import, Distribution and Sale of Alcoholic Drinks by Canadian Provincial Marketing Agencies (Canada - Alcohol I), adopted 22 March 1988, BISD 35S/37.
15. See, e.g., Canada - Alcohol I and Canada - Alcohol II;
16. and United States - Measures Affecting Alcoholic and Malt Beverages (US - Malt Beverages), adopted 19 June 1992, BISD 39S/206.
17. US - Malt Beverages, para. 5.79.
18. This interpretation is also supported by the drafting history of Article XXIV:12: see GATT, Analytical Index, as note 7 above, p. 830.
19. Canada - Alcohol II, paras 5.37-5.39.
20. See the cases cited at note 9 above.
21. See also Kuyper, as note 7 above, p. 245.
22. See Kuyper, as note 7 above, p. 244.
23. It needs to be noted, however, that on this issue there is some controversy in the relevant doctrine. Some publicists argue that states have a "general duty" to bring national law into conformity with international obligations (see, e.g., Brownlie, as note 2 above, p. 35),
24. while others take the view that it is uncertain whether such a duty exists (see, e.g., Sir Robert Jennings and Sir Arthur Watts, Oppenheim's International Law, Vol. I (Harlow: Longman, 1992), p. 85),
25. and, yet others deny, altogether, the existence of any such duty (see, e.g., Antonio Cassese, International Law (Oxford: Oxford University Press, 2001), p. 167).
26. Importantly, commentators who contend that there exists such a duty, add that a state does not commit a direct breach of international law by merely failing in that duty, and a breach occurs only if the state concerned fails to carry out its obligations on a specific occasion: see, e.g., Anthony Aust, Modern Treaty Law and Practice (Cambridge: Cambridge University Press, 2000), p. 144;
27. Brownlie, as note 2 above, p. 35;
28. and Lord McNair, The Law of Treaties (Oxford: Clarendon Press, 1961), p. 100. It seems that the view that there is no such general duty is both supported by state practice and logically more consistent.
29. See Jennings and Watts, ibid., pp. 85-86.
30. See e.g., International Covenant on Civil and Political Rights 1966, Article 2(2);
31. and United Nations Convention on the Rights of the Child 1989, Articles 3(2), 4, 19(1), 32(2) and 33.
32. See, e.g., Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, Article 4;
33. and Convention on the Safety of United Nations and Associated Personnel 1994, Article 9(2).
34. See, e.g., United Nations Convention on the Law of the Sea 1982, Articles 207(1), 208(1), 209(2), 210(1), 211(2), 212(1), 213, 214, 217(1), 220(4) and 222;
35. and Rome Statute of the International Criminal Court 1998, Article 88.
36. United States - Sections 301-310 of the Trade Act of 1974, WT/ DS152/R, 22 December 1999, para. 7.80.
37. See note 14 above.
38. Id.
39. John H. Jackson, The World Trade Organization: Constitution and Jurisprudence (London: Royal Institute of International Affairs 1998), p. 36.
40. The Understanding, preambular para. 7.
41. See the SPS Agreement, Article 13;
42. the TBT Agreement, Articles 3, 4 and 7;
43. and the GATS, Article I:3.
44. See e.g., Guatemala - Anti-Dumping Investigation Regarding Portland Cement from Mexico, WT/DS60/AB/R, 2 November 1998, para. 65;
45. and United States - Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan, WT/DS184/AB/R, 24 July 2001, para. 51.
46. See generally on "conflict": Elisabetta Montaguti and Maurits Lugard, The GATT 1994 and Other Annex 1A Agreements: Four Different Relationships?, 3 J.I.E.L. 3 (2000), p. 473;
47. and for a critique of the Appellate Body's approach: Joost Pauwelyn, Cross-agreement complaints before the Appellate Body: a case study of the EC - Asbestos dispute, 1 World Trade Rev. 63 (2002), pp. 78-82.
48. See Pauwelyn, ibid., p. 80.
49. The provisions under examination here were reviewed by Santiago Villalpando from the perspective of attribution of conduct to Members. He concluded that the provisions contained in the GATT 1994 (as interpreted by the Understanding) and the GATS do not depart from the general public international law rules on state responsibility. Thus under these agreements the conduct of territorial units can be attributed to Members. (He did not consider the SPS provision, but it will also fall in the same category.) In contrast, the TBT Agreement establishes a lex specialis that excludes the attribution of the conduct of territorial units to Members. See Santiago M. Villalpando, Attribution of Conduct to the State: How the Rules of State Responsibility May be Applied within the WTO Dispute Settlement System, 5 J.I.E.L. 2 (2002), p. 393.
50. The Understanding, para. 13 (emphasis added).
51. See e.g., United States - Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, 29 April 1996, 23;
52. Japan - Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, 4 October 1996, 12, 18;
53. Korea - Definitive Safeguard Measure on Imports of Certain Dairy Products, WT/DS98/AB/R, 14 December 1999, paras 80-82;
54. and Argentina - Safeguard Measures on Imports of Footwear, WT/ DS121/AB/R, 14 December 1999, para. 88.
55. See also Michael Lennard, Navigating by the Stars: Interpreting the WTO Agreements, 5 J.I.E.L. 1 (2002), pp. 58-61.
56. See the Understanding, para. 14.
57. See DSU, Articles 3.7 and 22.1.
58. See, in this regard, Alan O. Sykes, "The Remedy for Breach of Obligations under the WTO Dispute Settlement Understanding: Damages or Specific Performance?", in Marco Bronckers and Reinhard Quick (eds), New Directions in International Economic Law: Essays in Honour of John H. Jackson (The Hague: Kluwer Law International, 2000), pp. 347-357;
59. and Judith Hippler Bello, The WTO Dispute Settlement Understanding: Less Is More, 90 A.J.I.L (1996), p. 416.
60. Cf. John H. Jackson, The WTO Dispute Settlement Understanding - Misunderstandings on the Nature of Legal Obligation, 91 A.J.I.L. (1997), p. 60.
61. GATS, Article I:3.
62. See TBT Agreement, Article 2 ("Preparation, Adoption and Application of Technical Regulations by Central Government Bodies");
63. Article 5 ("Procedures for Assessment of Conformity by Central Government Bodies");
64. and Article 6 ("Recognition of Conformity Assessment by Central Government Bodies").
65. See ibid., Article 3 ("Preparation, Adoption and Application of Technical Regulations by Local Government Bodies and Non-Governmental Bodies");
66. and Article 7 ("Procedures for Assessment of Conformity by Local Government Bodies").
67. Typically, a Member may invoke WTO dispute settlement procedures if "any benefit accruing to it" under the WTO agreements is "nullified or impaired" by another Member: see, e.g., DSU, Article 3;
68. and GATT 1994, Article XXIII.
69. TBT Agreement, Article 14.4.
70. See note 30 above, and accompanying texts.
71. See DSU, Articles 1 and 23.
72. Ibid., Article 1.2, footnotes 3 and 17 and Appendix 2.
73. In the realm of international law, this is not at all an arcane distinction. The International Law Commission's Draft Articles on State Responsibility, for instance, are premised on a distinction between "primary rules" of international law and "secondary rules of state responsibility": see Crawford, as note 2 above, p. 74.
74. In addition, within the Draft itself, the "new legal relationship" or the "new obligations" which arise as a result of a breach are dealt with separately (in Part Two of the Draft) from the general conditions that give rise to state responsibility (this is dealt with in Part One): see ibid., at 191.
75. See notes 31 and 32 above, and accompanying texts.
76. See notes 11 and 12 above, and accompanying texts.
77. Indeed, most of the provisions contained in various WTO agreements other than the TBT Agreement refer generally to "Members".
78. It may be recalled that it was already decided under the GATT 1947 that the GATT obligations did not cease to be applicable to local governments because of the "federal limitation": see note 8 above.
79. See WTO Agreement, Article XVI:3
80. These are provided for in Article X of the WTO Agreement. Another alternative could be the adoption of a new Understanding that overrides the provisions concerned.