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The WTO Legal System: Sources of Law

Published online by Cambridge University Press:  27 February 2017

David Palmeter  and
Petros C. Mavroidis
David Palmeter
Affiliation:
Goldstein, Frazer & Murphy LLP, Washington, D.C.
Petros C. Mavroidis
Affiliation:
University of Neuchâtel, Switzerland
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Extract

Modern discussions of the sources of international law usually begin with a reference to Article 38 (1) of the Statute of the International Court of Justice (ICJ), which provides:

The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

  1. a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

  2. b. international custom as evidence of a general practice accepted as law;

  3. c. the general principles of law recognized by civilized nations;

  4. d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Type
Research Article
Information
American Journal of International Law , Volume 92 , Issue 3 , July 1998 , pp. 398 - 413
Copyright
Copyright © American Society of International Law 1998

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References

1 See, e.g., Ian, Brownlie, Principles of Public International Law 3 (4th ed. 1990)Google Scholar; Barry, E. Carter & Phillip, R. Trimble, International Law 18 (2d ed. 1994)Google Scholar; Rosalyn, Higgins, Problems and Process: International Law and How We Use It 17–18 (1994)Google Scholar; Malcolm, N. Shaw, International Law 59 (1991)Google Scholar. Article 59 of the Statute, referred to in Article 38(1) (d), provides simply: “The decision of the Court has no binding force except between the parties and in respect of that particular case.”

2 Agreement Establishing the World Trade Organization [hereinafter WTO Agreement], opened for signature Apr. 15, 1994, in Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Marrakesh, 15 April 1994 [hereinafter Final Act], and 33 ILM 1144 (1994). For background on the WTO and the world trading system, see John H. Jackson, The World Trading System (2d ed. 1997).

3 The most important of these are the annex entitled “Multilateral Agreements on Trade in Goods,” which includes the text of General Agreement on Tariffs and Trade 1994, with six Understandings concerning the interpretation of its articles, and 12 substantive agreements, running from the Agreement on Agriculture to the Agreement on Safeguards; the General Agreement on Trade in Services; and the Agreement on Trade- Related Aspects of Intellectual Property Rights.

4 WTO Agreement, supra note 2, Understanding on Rules and Procedures Governing the Settlement of Disputes, 33 ILM at 1226 [hereinafter DSU].

5 Japan—Taxes on Alcoholic Beverages, WTO Doc. AB–1996–2, WT/DS1/AB/R, WT/DS10/AB/R/, WT/ DS22/AB/4, at 19 (Nov. 1, 1996) [hereinafter Japan Alcohol AB Report].

6 DSU, supra note 4, Art. 7 (emphasis added).

7 Id., Art. 2.1.

8 These are the Agreement on Civil Aircraft and the Agreement on Government Procurement. Two other plurilateral agreements, the International Dairy Agreement and the International Bovine Meat Agreement, were terminated at the end of 1997. Deletion of the International Dairy Agreement from Annex 4 of the WTO Agreement, Decision of Dec. 10, 1997, WTO Doc. WT/L/251 (Dec. 17, 1997); Deletion of the International Bovine Meat Agreement from Annex 4 of the WTO Agreement, Decision of Dec. 10, 1997, WTO Doc. WT/L/252 (Dec. 16, 1997).

9 European Communities—Regime for the Importation, Sale and Distribution of Bananas, WTO Doc. AB- 1997–3, WT/DS27/AB/R, para. 142 (Sept. 9, 1997).

10 Mohamed Shahabuddeen, Precedent in the World Court 3 (1996).

11 WTO Agreement, supra note 2, Art. XVI:1 (except as otherwise provided under the Agreement or the multilateral WTO Agreements).

12 “GATT 1947” is the term applied to the original GATT. The same text is incorporated in toto into the WTO as part of “GATT 1994.” In GATT practice, the term “Contracting Parties” referred to actions of all of the parties acting collectively; individual parties were referred to with initial capitals as “Contracting Parties.” In referring to the provisions of GATT 1947 as they currently apply via GATT 1994, this paper uses the term “GATT.” It uses “GATT 1994” for the entire GATT 1994 Agreement, including GATT.

13 WTO Doc. WT/DS8/R, WT/DS10/R, WT/DS11/R, adopted as modified by the Appellate Body (Nov. 1, 1996) [hereinafter Japan Alcohol—Panel Report].

14 Id., para. 6.10.

15 This discussion is based on section E of the Appellate Body’s report, Japan Alcohol—AB Report, supra note 5, at 13 (text of Oct. 4, 1996).

16 See id. at 15.

17 Id. at 14.

18 Id.

19 See Japan Alcohol—Panel Report, supra note 13, para. 6.10.

20 Id.

21 Shabtai, Rosenne, The Law and Practice of the International Court 56 (2d rev. ed. 1985)Google Scholar, quoted in Shahabuddeen, supra note 10, at 131.

22 See Japan Alcohol—AB Report, supra note 5, at 15.

23 Id. n.30.

24 DSU, supra note 4, Art. 3.2.

25 Japan Alcohol—AB Report, supra note 5, at 15 (quoting Japan Alcohol—Panel Report, supra note 13, para. 6.10).

26 Id. at 16 (quoting Japan Alcohol—Panel Report, para. 6.10).

27 See Thomas, M. Franck, Fairness in International Law and Institutions 26–46 (1995)Google Scholar.

28 European Economic Community—Restrictions on Imports of Dessert Apples, Complaint by Chile, June 22, 1989, GATTB.I.S.D. (36th Supp.) at 93, 123–24, para. 12.1 (1990) (citation omitted).

29 See Japan Alcohol—Panel Report, supra note 13, para. 6.18.

30 See Gerald, Fitzmaurice, The Law and Procedure of the International Court of Justice 584 (1986)Google Scholar.

31 See Japan Alcohol—Panel Report, supra note 13, para. 6.11; United States—Standards for Reformulated and Conventional Gasoline, WTO Doc. WT/DS2/R, adopted as modified by the Appellate Body, para. 6.11 (May 20, 1996), 35 ILM 274 (1996) [hereinafter U.S. Gasoline—Panel Report].

32 U.S. Gasoline—Panel Report, supra note 31, paras. 6.10, 6.40; Japan Alcohol—Panel Report, supra note 13, para. 6.19.

33 U.S. Gasoline—Panel Report, supra note 31, para. 6.14.

34 United States—Restrictions on Imports of Cotton and Man-Made Fibre Underwear, WTO Doc. WT/ DS24/R, adopted as modified by the Appellate Body, para. 7.12 (Feb. 25, 1997) [hereinafter U.S. C o t t o n–Panel Report] (referring to New Zealand—Imports of Electrical Transformers from Finland, July 18, 1985, GATT B.I.S.D. (32d Supp.) at 55 (1986)).

35 This language suggests that the drafters of these reports were aware of comparable language in reports of the Permanent Court of International Justice. See Shahabuddeen, supra note 10, at 17. The phraseology continues in the World Court, as evidenced by the recent case Gabčíkovo-Nagymaros Project (Hung. v. Slovk.), 1997 ICJ Rep. 92 (Sept. 25): “The Court recalls that it has recently had occasion to stress . . .” (para. 53); “The Court recalls that, in the Fisheries Jurisdiction case . . .” (para. 104); “The Court will recall in this context that, as it said in the North Sea Continental Shelf cases . . .” (para. 141); but more authoritatively, “The Permanent Court of International Justice stated in its Judgment of 13 September 1928 in the case concerning the Factory at Chorzów . . .” (para. 149) (emphasis added).

36 U.S. Cotton—Panel Report, supra note 34, paras. 7.11–12.

37 United States—Measure Affecting Imports of Woven Wool Shirts and Blouses from India, WTO Doc. WT/DS33/R, para. 7.15 (Jan. 6, 1997).

38 Japan Alcohol—Panel Report, supra note 13, para. 6.23.

39 Id.

40 DSU, supra note 4, Art. 16.

41 See, e.g., Rene, David, French Law: Its Structure, Sources, and Methodology 186 (Michael, Kindred trans., 1972)Google Scholar.

42 Japan Alcohol—Panel Report, supra note 13, para. 6.22.

43 See United States—Measure Affecting Imports of Woven Wool Shirts and Blouses from India, supra note 37, para. 7.15.

44 DSU, supra note 4, Art. 8.4.

45 Panels are normally composed of three individuals, with one serving as chair. The parties may agree, however, to a five-member panel provided they do so within 10 days of the establishment of the panel by the DSB. Id., Art. 8.5.

46 Switzerland, Australia, New Zealand and Hong Kong were the leaders in providing panelists for the first 10 WTO panels to issue reports. This probably reflects the fact that, as seen by other WTO members, these members have a relatively large pool of qualified individuals and are not from a major user of the dispute settlement system. No Americans and only one Japanese served on these first 10 panels.

47 See DSU, supra note 4, Art. 17.1.

48 Appellate Body, Working Procedures for Appellate Review, as amended, WTO Doc. WT/AB/WP/3, Rule 4 (Feb. 28, 1997).

49 Shahabuddeen, supra note 10, at 45.

50 See Japan Alcohol—AB Report, supra note 5, at 10–11 (emphasis added).

51 Id. at 12 (emphasis added).

52 Shahabuddeen, supra note 10, at 238. The words of former U.S. Supreme Court Associate Justice Robert H. Jackson are relevant:

Whenever decisions of one court are reviewed by another, a percentage of them are reversed. That reflects a difference in outlook normally found between personnel comprising different courts. However, reversal by a higher court is not proof that justice is thereby better done. . . . We are not final because we are infallible, but we are infallible only because we are final.

Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring).

53 See, e.g., United States—Standards for Reformulated and Conventional Gasoline, WTO Doc. AB–1996–1, WT/DS2/AB/R, at 17 (May 20, 1996), 35 ILM 603 (1996). For the Vienna Convention on the Law of Treaties, opened far signature May 23, 1969, see.1155 UNTS 331.

54 The “precautionary principle” holds generally that, “ [w]here there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” Rio Declaration on Environment and Development, June 14, 1992, Principle 15, 31 ILM 874, 879 (1992). See also Franck, supra note 27, at 370; 1 Philippe Sands, Principles of International Environmental Law 208–13 (1995).

55 EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, WTO Doc. WT/DS26/R/USA, para. 8.157 (Aug. 18, 1997), and Complaint by Canada, WTO Doc. WT/DS48/R/ CAN, para. 8.160 (Aug. 18, 1997).

56 EC—Measures Concerning Meat and Meat Products (Hormones), WTO Doc. AB–1997–4, WT/DS26/ AB/R, WT/DS48/AB/R, para. 123 (Jan. 16, 1998).

57 Id.

58 This is the opinio juris requirement, set out in Article 38(1) (b) of the Statute of the International Court of Justice.

59 See, e.g., United States—Measures Affecting Alcoholic and Malt Beverages, June 19, 1992, GATT B.I.S.D. (39th Supp.) at 206, 285 (1993) (citing the works of Prof. John H. Jackson and Prof. Robert E. Hudec).

60 The history is recounted in two volumes by Robert E. Hudec, The Gatt Legal System and World Trade Diplomacy (2d ed. 1990), and Enforcing International Trade Law: The Evolution of The Modern Gatt Legal System (1993).

61 This skeptical attitude toward law is apparent from the very tide of a work by GATT’s second Director General. Olivier Long, Law and Its Limitationsin The Gatt Multilateral Trade System (1985) (emphasis added).

62 See, e.g., Argentina—Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items, WTO Doc. WT/DS56/R, at nn.176 (John H. Jackson), 184 (Keith Highet), 185 (Mojtaba Kazazi) (Nov. 25, 1997); India—Patent Protection for Pharmaceutical and Agricultural Chemical Products, WTO Doc. AB–1997–5, WT/DS50/AB/R, at nn.26 (F. Roessler, E.-U. Petersmann), 28 (E.-U. Petersmann), 52 (I. Brownlie) (Dec. 19, 1997); EC—Measures Concerning Meat and Meat Products (Hormones), supra note 56, at n.92 (P. Sands, J. Cameron, J. Abouchar, P. Birnie, A. Boyle, L. Gundling, A. deMestral, D. Bodansky).

63 DSU, supra note 4, Art. 17.6.

64 U.S. Cotton—Panel Report, supra note 34, para. 7.21 (citing several additional cases). See also Canada— Import Restrictions on Ice Cream and Yoghurt, Dec. 5, 1989, GATT B.I.S.D. (36th Supp.) at 68, 84, para. 59 (1990). “The Panel recalled that . . . . exceptions were to be interpreted narrowly” (citing Japan—Restrictions on Imports of Certain Agricultural Products, Mar. 22,1988, GATT B.I.S.D. (35th Supp.) at 163 (1989), and EEC—Restrictions on Imports of Apples, Complaint by the United States, June 22, 1989, id. (36th Supp.) at 135).

66 EC—Measures Concerning Meat and Meat Products (Hormones), supra note 56, para. 104:

[M]erely characterizing a treaty provision as an “exception” does not by itself justify a “stricter” or “narrower” interpretation of that provision than would be warranted by examination of the ordinary meaning of the actual treaty words, viewed in context and in the light of the treaty’s object and purpose, or, in other words, by applying the normal rules of treaty interpretation.

66 United States—Measures Affecting Imports of Softwood Lumber from Canada, Oct. 27–28, 1993, GATT B.I.S.D. (40th Supp.) at 358, 480–86, paras. 308–25 (1994).

67 U.S. Gasoline—Panel Report, supra note 31, sec. III.B, at 23; Japan Alcohol—Panel Report, supra note 13, para. 6.22; Japan Alcohol—AB Report, supra note 5, at 12; United States—Restrictions on Imports of Cotton and Man-Made Cotton Fibre Underwear, WTO Doc. AB–1996–3, WT/DS24/AB/R, at 16, adopted Feb. 25, 1997 (Feb. 10, 1997).

68 “[A]n important consideration is that the effects of a countermeasure must be commensurate with the injury suffered”; this is “the proportionality which is required by international law.” Gabčíkovo-Nagymaros Project, 1997 ICJ Rep. 92, para. 85.

69 Agreement on Trade-Related Aspects of Intellectual Property Rights, in Final Act, supra note 2, Art. 1.3 [hereinafter TRIPS].

70 Agreement on Subsidies and Countervailing Measures, in Final Act, supra note 2, Annex I(k):

[I]f a Member is a party to an international undertaking on official export credits to which at least twelve original Members to this Agreement are parties as of 1 January 1979 (or a successor undertaking which has been adopted by those original Members), or if in practice a Member applies the interest rates provisions of the relevant undertaking, an export credit practice which is in conformity with those provisions shall not be considered an export subsidy prohibited by this Agreement.

The “international undertaking” described is the “OECD Arrangement,” OECD Doc. OCDE/GD(92)95 (1992).

71 United States—Standards for Reformulated and Conventional Gasoline, supra note 53, at 17. The Vienna Convention opens the way to the potential relevancy of other international agreements that otherwise may have no direct connection with the WTO Agreements. See the section “Customs,” supra.

72 EC—Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, supra note 55, paras. 8.24, 8.21; Complaint by Canada, supra note 55, paras. 8.27, 8.28.

73 See, e.g., Brazil—Measures Affecting Desiccated Coconut, WTO Doc. WT/DS22/R, paras. 23–36, 37–39 (Oct. 17, 1996); U.S. Cotton—Panel Report, supra note 34, paras. 5.224, 7.63.

74 For example, the text of footnote 2 to the TRIPS Agreement, supra note 69, specifies in part: “In this Agreement, ‘Paris Convention’ refers to the Paris Convention for the Protection of Industrial Property: ‘Paris Convention (1967)’ refers to the Stockholm Act of this Convention of 14 July 1967.”

75 Arbitral Panel Established Pursuant to Article 2008 of the North American Free Trade Agreement, Final Report: In the Matter of Tariffs Applied by Canada to Certain U.S.-Origin Agricultural Products (Dec. 2, 1996).

76 Id., para. 134.

77 The apt phrase “international regulatory agreements” is taken from the subtitle of Abram Chaves & Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (1995).

78 Canada/European Communities Article XXVIII Rights, Award by the Arbitrator, GATT B.I.S.D. (37th Supp.) at 80, 84 (1991).

79 European Communities—Measures Affecting the Importation of Certain Poultry Products, WTO Doc. WT/DS69/R (Mar. 12, 1998).

80 Id., para. 197.

81 Id., para. 2.02. The panel also referred to the Banana panel’s consideration of the Lome Convention. See note 9 supra.

82 United States—Restrictions on Imports of Tuna, GATT Doc. DS29/R (June 16, 1994), 33 ILM 839 (1994).

83 Id., paras. 3.14,3.21–3.34.

84 Id., para. 5.18.

85 Id., para. 5.19.

86 Vienna Convention on the Law of Treaties, supra note 53, Art. 31 (3) (c).

87 United States—Restrictions on Imports of Tuna, supra note 82, para. 5.19.

88 United States—Import Prohibition of Certain Shrimp and Shrimp Products, WTO Doc. WT/DS58/R, para. 7.57 (Apr. 6, 1998).

89 Id.

90 On this issue, see Aaditya, Mattoo & Petros, C. Mavroidis, Trade, Environment and the WTO: How Real Is the Conflict? , in International Trade Law and the GATT/WTO Dispute Settlement System 325 (Ernst-Ulrich, Petersmann ed., 1997)Google Scholar.

91 United States—Restrictions on Imports of Tuna, supra note 82, para. 5.19.

92 European Communities—Regime for the Importation, Sale and Distribution of Bananas, WTO Doc. WT/DS27/R (May 22, 1997).

93 Id., paras. 7.95, 7.97.

94 Id., para. 7.97.

95 European Communities—Regime for the Importation, Sale and Distribution of Bananas, supra note 9, paras. 167, 169.