Section IV The Research Method: Coherence and Consistency Applied
A) Tests
Below, this thesis presents the tests for matters related to coherence (1) and to consistency (2). It also presents a test for an outcome to be considered compatible (3).
1) Coherence
This thesis identifies matters of coherence whenever a conflict exists, either between WTO Law and different international obligations contracted by Brazil or between WTO Law and domestic laws.
As discussed above, any solution that harmonizes the conflicting rules or that chooses one over another is, in principle, acceptable. However, when harmonizing amounts to inconsistency in the interpretation of one or more of the conflicting rules, the problem is also examined as one of inconsistency.
2) Consistency
The test for consistency is based on whether the rulings’ reasoning uses the language of WTO Law. To be consistent, a ruling must show awareness of the vocabulary and the case law, even if the intention is to contest it. As seen above, not every argument is accepted inside a given interpretive community, which plays a constraining role in interpretation.
Therefore, semantic claims must take into account a pre-existing context, past and future practices, connecting to authoritative reference points and past uses and concepts.
This thesis has defined a series of criteria to measure consistency: use of treaty interpretation methods (a); identification of treaty provisions in light of WTO interpretation (b); textualist approach to interpretation (c);
reference to WTO case law and interpretation (d); interpretation analysis (e). Although the first four criteria do not directly relate to meaning attribution, they indicate whether and how domestic courts’ interpretive
claims connect to the pre-existing context, past uses and concepts, and authoritative reference points in the primary interpretive community of WTO Law. With these criteria, this thesis investigates domestic courts’
relationship with that community. In addition, this thesis investigates whether they impact on consistency in domestic courts’ rulings. Below, how each of these criteria relates to consistency is further explained.
a) Use of treaty interpretation methods
International legal scholars normally contend that national courts should use treaty interpretation methods whenever engaging with international law. They believe this would mitigate fragmentation and lead to better rulings.376 Moreover, this would avoid that national judges interpret international treaties ‘through their national glasses’.377
Michael Waibel, for example, affirms that
whether national courts are a source of fragmentation or a source of integration depends partly on whether they use the same interpretive methodology, and what role interpretive communities along national lines play. Who the treaty interpreters are and how they approach the task of interpretation likely matters for interpretive outcomes.378
Accordingly, the interpretive principles contained in the Vienna Convention on the Law of the Treaties ‘could facilitate convergence in treaty interpretation by diverse national judges’.379
Michael Waibel states
One aspiration of Articles 31-33 VCLT is to help overcome interpretive divergence between diverse national judges that are part of diverse interpretive communities and to foster convergence, if not uniformity, in treaty interpretation.380
He later adds:
The policy rationale of convergence applies with particular force to national courts engaged in treaty interpretation. In this
376 See, for example, Cristoph H. Schreurer, ‘The Interpretation of Treaties by Domestic Courts’, 45 (1971) Brit. Y.B. Int'l L. 255-301; Jean d’Aspremont, ‘The Principle of Systemic Integration of International Law’ in Ole Kristian Fauchald and André Nollkaemper (eds), The Practice of International and National Courts and the (De-)Fragmentation of International Law (Hart Publishing 2012); Helmut Philipp Aust, ‘Between Universal Aspiration and Local Application’ in Helmut Philipp Aust and Georg Nolte (eds), The Interpretation of International Law by Domestic Courts: Uniformity, Diversity, Convergence (Kindle Edition, OUP 2016); André Nollkamper,
‘Grounds for the Application of International Rules of Interpretation in National Courts’ in Helmut Philipp Aust and Georg Nolte (eds), The Interpretation of International Law by Domestic Courts:
Uniformity, Diversity, Convergence (Kindle Edition, OUP 2016); Olga Frishman and Eyal Benvenisti,
‘National Courts and Interpretive Approaches to International Law’ in Helmut Philipp Aust and Georg Nolte (eds), The Interpretation of International Law by Domestic Courts: Uniformity, Diversity, Convergence (Kindle Edition, OUP 2016).
377 Michael Weibel, ‘Principles of Treaty Interpretation: Developed for and Applied by National Courts?’, in Helmut Philipp Aust and Georg Nolte (eds), The Interpretation of International Law by Domestic Courts: Uniformity, Diversity, Convergence (Kindle Edition, OUP 2016), p. 17.
378 Michael Weibel, ‘Principles of Treaty Interpretation: Developed for and Applied by National Courts?’
in Helmut Philipp Aust and Georg Nolte (eds), The Interpretation of International Law by Domestic Courts: Uniformity, Diversity, Convergence (OUP, 2016, Kindle Edition) 17.
379 Michael Weibel, ‘Principles of Treaty Interpretation: Developed for and Applied by National Courts?’
in Helmut Philipp Aust and Georg Nolte (eds), The Interpretation of International Law by Domestic Courts: Uniformity, Diversity, Convergence (Kindle Edition, OUP 2016) 17.
380 Michael Weibel, ‘Principles of Treaty Interpretation: Developed for and Applied by National Courts?’
in Helmut Philipp Aust and Georg Nolte (eds), The Interpretation of International Law by Domestic Courts: Uniformity, Diversity, Convergence (Kindle Edition, OUP 2016) 13.
respect, the VCLT’s interpretive provisions could perform a valuable function as an anti-fragmentation device.381
The VCLT was incorporated into the Brazilian legal system, 382 so domestic courts can apply it to treaty interpretation. WTO adjudicating bodies use the VCLT’s interpretive provisions to interpret WTO agreements.
Thus, this thesis investigates whether Brazilian courts use VCLT’s interpretive provisions in their engagement with WTO Law and whether this impacts on consistency or fragmentation.
b)Identification of treaty provisions in light of WTO interpretation
WTO adjudication takes into account specific treaty provisions. Thus, this thesis investigates whether Brazilian case law refers to specific treaty provisions or prefers to invoke general concepts related to GATT.
This thesis hypothesises that reference to specific treaty provisions is relevant to achieve consistency in interpretation, since it propels courts to focus on treaty texts.
c)Textualist approach to interpretation
WTO adjudicating bodies tend to have a textualist approach to interpretation, which seems appropriate to avoid adding or diminishing to Members’ convened obligations.383 As seen above, interpreters are not free to create meaning, the text being the most important authoritative reference point in treaty interpretation.
Thus, this criterium adds to the former one, within the perspective that a textualist approach to interpretation might promote consistency because it coincides with WTO adjudicating bodies’ approach and compels national courts to concentrate on treaty words.
d)Reference to WTO case law and interpretation
Semantic claims, as discussed above, must be tied to authoritative reference points, and connected to past uses and concepts. WTO adjudicating bodies have performed a crucial role in shaping WTO Law’s meaning. Consequently, domestic courts playing a role in the primary interpretive community should openly consider them in their interpretive claims. In addition, this thesis hypothesises that such references may impact on consistency, because they relate to knowledge of WTO language and, especially, of legal meanings already attributed by WTO adjudicating bodies.
e) Interpretation analysis
In this criterium, this thesis analyses meaning attribution in each case to determine whether it is consistent both with WTO case law and with other internal cases.
Here, it is important to call attention to the fact that the analysis is one of meaning, not of wording. Thus, different wording can have the same meaning, which can be identified through their use in each case.
381 Michael Weibel, ‘Principles of Treaty Interpretation: Developed for and Applied by National Courts?’, in Helmut Philipp Aust and Georg Nolte (eds), The Interpretation of International Law by Domestic Courts: Uniformity, Diversity, Convergence (Kindle Edition, OUP 2016) 13.
382 BRAZIL. Decreto 7030, 14 December 2009. < http://www.planalto.gov.br/ccivil_03/_ato2007-2010/2009/decreto/d7030.htm> accessed 06 August 2019.
383 Gabrielle Marceau, ‘Evolutive Interpretation by the WTO Adjudicator: Sophism or Necessity?’
(2018) 21 JIEL 805. However, this has also merited criticism: Giovanni Distefano and Petros Mavroidis, ‘L’interprétation systémique: le liant de l’ordre international’, (2011) 11 Columbia Public Law Research Paper 285 <http://ssrn/com/abstract=1945126> accessed 07 August 2019
Recalling Wittgenstein’s lesson, meaning is a product of practice.
Within this in mind, what this thesis investigates is whether, within each case, the different wording used by Brazilian courts confers to a provision of the GATT the same meaning that WTO adjudicating bodies and other Brazilian courts give to it.
3) Outcomes
An outcome is considered to be compatible whenever it is reasonable to think, based on previous WTO case law, that the WTO adjudicating bodies could have reached the same outcome in relation to the same or similar facts.