Book Chapter
Reference
Comments on "Joost Pauwelyn's" paper : "How to win a WTO dispute based on non-WTO law ?
MARCEAU, Gabrielle Zoe, TOMAZOS, Anastasios
MARCEAU, Gabrielle Zoe, TOMAZOS, Anastasios. Comments on "Joost Pauwelyn's" paper :
"How to win a WTO dispute based on non-WTO law ? In: Griller, Stefan (Ed.). At the
crossroads : the world trading system and the Doha Round . Wien : Springer, 2008. p.
55-81
Available at:
http://archive-ouverte.unige.ch/unige:28980
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1 / 1
Gabrielle Marceau and Anastasios Tomazos*
Comments on Joost Pauwelyn's Paper: 'How to Win a WTO Dispute Based on Non-WTO Law?'
I. Introduction 55
II. Where Non-WTO Law Leads a Panel to Decline
Jurisdiction 57
Ill. Where Non-WTO Law Justifies What Would Otherwise
Be a Violation of WTO Law 66
IV. Conclusion 78
References 80
1. Introduction
We have been asked to provide general comments on our col- league's paper entitled, 'How to win a WTO dispute based on non- WTO Law'.
As the title suggests, the primary focus of Joost Pauwelyn's paper is to examine how and in what circumstances non-WTO can be applied by World Trade Organization (WTO) panels in disputes.
In examining this issue, Pauwelyn distinguishes the following two types of situations, which in our view arc nevcrtheless related: (1) whcrc non-WTO law leads a panel to decline jurisdiction and (2) where non-WTO law justifies what would otherwise be a violation ofWTO law.
In the first situation, Pauwelyn argues that panels and the Ap- pcllatc Body should decline jurisdiction whcn WTO Members have bilaterally agrccd to set aside the jurisdiction of the WTO dispute seUlement over WTO-rclatcd disputes and cach timc another inter-
*
Gabrielle Marceau is a Counsellor in the Cabinet of the Director- General of the WTO and Anastasius Tomazos at the ti me of writing this comment was a Legal Consultant for the Legal Affairs Division of the WTO Secretariat. The views expressed in this paper are strictly those of the authors and do not bine\ the WTO Secretariat or the WTO Members.Gabrielle Marceau 1 Anastasios Tomazos
na~iomtl
tribunal has been set up to resolve a dispute or has already rulcd on a similar matter pm·suant to another treaty provision.In our view, in arguing that WTO panels should decline juris- diction when another trcaty also grants jurisdiction, which disre- gards the compulsory and automatic nature of the WTO dispute seulement system and, in creating unnecessary conf1ict of norms that facilitates pushing disputes outsidc the ambit of WTO law, Pauwelyn misconstrues fundamental aspects of the WTO dispute scttlement system and overlool<s the successful results of the Um- guay Round negotiations, where States (i.e., WTO Members) agreed to construct a more rule-based international trading system, primarily through the present dispute settlement system. ln allowing WTO panels and the Appellate Body to recognizc such treaties - which we suggest may be considcred contrary to the automatic na- ture1 of the WTO dispute settlement system - one of the implica- tions of Pauwelyn's thcsis is that it would leavc weaker trading partncrs in the bands of more powerful States, capable of imposing other jurisdictional mechanisms that arc Jess impartial, comprehen- sive and rule-orientated than that of the WTO dispute settlement system.
In the second situation, Pauwelyn argues that in sorne in- stances, WTO adjudîcating bodies should find, on the merits of a dispute, that there is no WTO violation whcre non-WTO law pre- va ils over WTO law. In reaching this conclusion, Pauwelyn sug- gests a very broad definition of conflict of nonns and pro vides sev- era! examples of possible conflicts between WTO provisions and other international obligations. Pauwelyn broadens the notion of conf1ict of notms by încluding conflicts between rights and obliga- tions or exceptions under Article XX of GA TT 1994. He also con- tends that WTO relations are bilateral by nature and therefore, two Members can agree to derogatc from provisions of the WTO. Then, Pauwelyn suggests that WTO panels and Appellatc Body are re- quired to resolve any and ali conflicts that may exist between WTO provisions and othcr international obligations and rights of States when they are involved in a WTO dispute. Ostcnsibly, for Pauwe- lyn, identifying conflicts appears to ensure that panels and the Ap-
1 This term refers lo the so-called negative consensus rule set out, inter alia, in Article 6.1 of the DSU, whereby all Members present al a DSB meeting, including the complainant requesting the establish- ment of the panel, decide by consensus not to establish a panel.
Comments on Joost Pauwelyn's Paper 57 pcllatc Body are able to adjudicate the issue objectively as weil as respecting international law.
In our view, Pauwelyn's perspective overlooks the nature and the state of public intcmational law at present. States arc bound at all times by all thcir international obligations and must always re- spect the rights of other States. Moreover, States must also negoti- ate and apply thcir intemational obligations in good faith at all times. Although Pauwelyn dacs acknowledge in his papcr that it would be cxccptional if a harmonious interpretation of WTO law and non-WTO law was not possible and the latter provided an 'in- dependent dcfcnce' to a violation of the WTO trcaty, wc are of the vicw that WTO law and other provisions of international law can gcncrally be applied harmoniously and effectively through good faith interpretation.
Even though WTO panels and the Appcllatc Body cannat interpret and enforce non-WTO law, other than to the extent neces- sary to intcrpret and apply WTO provisions, one should not under- estimate the potential coherence that exists bctwccn WTO law and the other systems of international law. Wc believe Pauwelyn over- emphasizes the role of conflict of norms in resolving WTO dis- putes. Patrwelyn ignores the 'chaotic' nature of international law and seeks to compartmentalizc cach system of international law in such a manner that almost assures that conflicts will be created as issues often ovcrlap bctween different sub-systems of international law.
If Pauwelyn's argument is acccptcd, it would grant a special- ized tribunal, such as a WTO panel, powers for which it has not been conferred or possess the capacity to address. More impor- tantly, instead of favoring an evolving coherence and mutual re- spect between intcmational legal systems, Pauwelyn's viewpoint would rcquirc the WTO dispute seUlement system and other inter- national tribunats to compartmentalize, separate and dissociate functions and duties contraty to their overlapping mandates. This cannat be correct. Although no one would argue that the WTO is not an important intemational organization, it is not a world gov- ernmcnt and its dispute settlcment system even Jess so.
II. Where Non-WTO Law Leads a Panel to Decline Jurisdiction WTO panels are not courts of general jurisdiction; they have a delegated and limited jurisdiction. Therefore, panels must comply with the mandate received from WTO Membcrs through the Dis-
58 Gabrielle Marceau 1 Anastasios Tomazos
pute Scttlement Body (DSB). Pursuant to Articles XXII and XXIll of GATT 1 994 and the Dispute Settlement Understanding (DSU) Members have dclegated to panels and the Appellate Body the power to adjudicate their disputes and make recommcndations to the DSB. The parameters of this delegation and the jurisdiction of the WTO adjudicating bodies are determined by the DSU and the Marrakesh Agreement Establishing the WTO. This may explain why GATT/WTO jurisprudence has cstablishcd that panels and the Appellate Body may still rule on the WTO compatibility of meas- ures that have been removed during proceedings. For instance, in Argentina - Textiles and Apparel, Argcntina had changed the leve) of its statistical tax during the proceedings. The Appellate Body nevertheless examined the leve! of the tax as it was at the time the Panel was cstablished:
'At the ti me the Panel proceeding commenced, there was in effect in Argentina an ad valorem tax of 3 percent on imports, without a minimum or a maximum charge, which was callcd a 'statistical tax' and was described as de- signed to caver the cast of providing a statistical service intendcd to provide a reliablc data base for foreign trade operators. i
i According to Argentina's statement at the oral hcm·ing on 23 Febru- ary !998, this ad valorem statistical tax was modified to 0.5 percent in Decembcr 1997 .'2
Likewisc, in US - Certain EC Products, the Appellate Body concluded that although the measure at issue was no longer in ex- istence, it nonethcless found that the measure was inconsistent with Article II: l of GA TT 1994. However, since the measure was no longer in existence, no recommendation could be made to the DSB.3 Other panels and the Appellate Body have analyzed and reached conclusions on measurcs removed or modified at the time of their mlings.4 This is further evidence, as claborated below, that WTO adjudicating bodies have a dcfined and limitcdjurisdiction.
2 Appellate Body Report on Argentina - Textiles and Apparel, WT/DS56/AB/R, at para. 64
3 Appellate Body Report on US - Certain EC Products, WT/DS 165/AB/R, at paras, 81, 82 and 129.
4 See for instance, the US - Gasoline Panel Report, WT/DS2/R, para.
6.19; Panel Report on US -Shirts and Blouses, WT/DS33/R, at para.
6.2; Panel Report on Jndonesia- Autos, WT/DS54/R, WT/DS55/R,
Comments on Joost Pauwelyn's Paper 59
To examine the issue of the jurisdiction of WTO adjudicating bodies discussed by Pauwelyn, we must first turn our attention to A1ticle 23 of the DSU.5 This provision is perhaps one of the most fundamental provisions of the DSU. As a means of prohibiting unilateral measurcs, the pm·posc of Article 23 of the DSU is to 'multilatcralize' the dispute scttlcment system by obliging Mcmbcrs to seek redress only through the DSU, as weil as, renouncing the use of unilateral trade countermeasures other than in conformity with WTO law.
In light of Article 23 of the DSU, which provides that a viola- tion of the WTO Agreement can be addressed only according to the WTO/DSU rulcs, would the invocation of a Regional Trade
WT/DS59/R, WT/DS64/R;. Panel Report on Al!C - Measures on Animal Feed Proteins, adopted on 14 March 1978, BISD 25S/49; and Panel Report on US - Tuna and Tu na Products .fi·om Canada, adopted on 22 Febnmry 1982, BlSD 29S/91.
5 Article 23 of the DSU reads as follows:
'Strengthening of the Multilateral System
1. When Members seek the redress of a violation of obligations or other nullification or impairment of benefits under the covered agreements or an impediment to the attainment of any objective of the covered agreements, they shall have recourse to, and a bide by, the rules and procedures of this Understanding.
2. ln such cases, Members shall:
(a) not make a determination to the em~ct that a violation has oc- curred, thal beneiits have been nullified or impaired or that the attainment of any objective of the covered agreements has been impeded, except through recourse to dispute seUlement in accordance with the rules and procedures of this Under- standing, and shall make any such determination consistent with the iindings contained in the panel or Appellate Body re- port adopted by the DSB or an arbitration award rendered un- der this Understanding;
(b) follow the procedures set forth in Article 21 to determine !he reasonable period of time for the Member concerned to im- plement the recommendations and rulings; and
(c) follow the procedures set forth in Article 22 to determine the leve] of suspension of concessions or other obligations and obtain DSB authorization in accordance with those procedures before suspending concessions or other obligations under the covered agreements in response to the failure of the Member concerned to implement the recommendations and rulings within thal reasonable period oftime.'
60 Gabrielle Marceau 1 Anastasius Tomazos
Agreement (RT A) provision be sufficient to stop the au toma tic na- ture of the WTO dispute settlcment system? How can Article 23 and the automatic nature of the DSU be reconciled with the prefer- ence and, in sorne circumstances, the exclusivity given to the RTA dispute settlement process concerning obligations which are similar in the R TA and in WTO for the same facts?
Pauwelyn argues that if a RT A panel has ru led on a matter be- tween the parties, the WTO panel should decline to rule on the similar WTO claim; and that if the RTA process is ongoing, the WTO process should be haltcd. Although we would do not in prin- ciple disagree with Pauwelyn's suggestion, it does not reflect the present state of international law.
Rather, it is our view that in light of the auto matie nature of the mechanism, once a dispute is initiated under the DSU, it is unlikely that a WTO panel would give any consideration to the respondent's rcquest to hait the procedures just bccause similar or related proce- dures are being pursued undcr aRTA. Parties could de facto not bring the matter to the WTO, but we think that it would be diftïcult for a WTO panel to refuse to hear a WTO Member complaining about a measure claimed to be inconsistent with the WTO Agree- ment on the ground that the complaining or rcsponding Membcr is allegcd to have a more specifie or more appropriate defcnce or rem- edy in another forum concerning the same legal facts. In practice, the WTO panel will most likely read and consider the related RT A mling(s) and may even use it to con.firm its own interpretation of the WTO provisions and thcir application to the matter at issue.
However, to decline jurisdiction bccause aRTA dispute mling has already been rendercd or ongoing is a totally different matter.
In initiating a parallel WTO dispute, a RTA party may be found to be violating the obligation under the RTA not to initiale a dispute outside the RTA. In thcse circumstanees, the RTA patty opposed to the parallel WTO panel (the 'opposing RTA party') would claim that the WTO panel initiated by the other RT A party is impairing sorne of its benefîts tmdcr the RTA. The opposing RTA party would arguably win this claim beforc the RTA panel. Theo- rctically, that opposing RT A party would then be entitled to sorne retaliation, the value of which could probably correspond to (part of) the bcnefits that the other RTA patty could gain in initiating its WTO panel. In other words, even if it may not be practical or useful for a RT A party to duplicate a dispute thal should be dcalt with in RTA, therc would be no legal obstacle against such a possibility,
Comments on Joost Pauwelyn 's Paper 61 since, legally speaking, the RT A tribunal and WTO panel would be considering different 'matters', and diiTcrcnt 'applicable law' in mechanisms that offcrs different remedies, implementation and en- forcement rules.6
There could be an overlap or contlict of jurisdiction between the dispute seUlement mechanism of the WTO and that of RTAs.
The wording of Atticle 23 of the DSU seems to make it clear that a WTO adjudicating body always has the authority (and even the ob- ligation) to examine claims of violations ofWTO obligations. WTO rights and obligations can be challcnged only pursuant to the WTO dispute settlement procedures and only beforc a WTO adjudicating body.7 In addition, WTO jurisprudence has decided that any WTO Member that is a 'potcntial exporter' has the sufficicnt legal interest to initia te a WTO panel process. 8 That is to say, in the context of a dispute between two WTO Mcmbcrs involving issues covcred by both an RTA and the WTO Agreement, any WTO Mcmber which considers that any of its WTO benefits have been nullified or im- paircd has the absolute right to trigger the WTO dispute settlement mechanism and to requcst the establishment of a panel on this mat- ter.9 Such a WTO Member cannot be askcd (and arguably cannot even agree) to take its WTO dispute to another forum, even if that other forum appears to be more relevant or bctter equippcd to deal with the issues involved.
Tensions may also arise from the availability of RT A non- compulsory dispute settlcment mechanism with no binding effect even in the absence of strict de jure cont1icts (but when faced with overlaps of jurisdictions). For instance, trade mcasurcs takcn pursu- ant to non-compliance with an RTA adjudication process coule! be 6 However, it is worth pondering on the potential issue of how a WTO arbitralion panel would deal wilh retaliation already enforced under the North American Free Trade Agreement if the potential WTO re- taliation is to be exercised on the same trade f1ows.
7 Even an arbitration pursuant to Article 25 of the DSU would be a WTO arbitration, and thus covered by the exclusivity provision of Article 23 ofthe DSU.
8 Appellate Body Report on EC ~ Bananas Ill, WT/DS27/AB/R at para. 136; See also the Panel Report on Korea- Daily, WT/DS98/R, al para. 7.13.
9 Appellate Body Report on US-Shirts and Blouses, WT/DS33/AB/R, at p. 13.
62 Gabrielle Marceau 1 Anastasios Tomazos
argued to be inconsistent with Article 23 of the DSU and Atticle XI of GATT. The benefits gained from such RT A countenneasures may be nullified by the consequences of a violation of Article 23 of the DSU and Articles II and XI of GATT 1994. It is thereforc for WTO Mcmbers to negotiate how they want to allocate jurisdiction between RTAs and the WTO, and how the dispute settlement mcchanism of RTAs and those of the WTO will operate. Otherwise, they will evolve in parallel. If so, they should be used and operated in good faith. As ofnow, they generally appear to be doing so.
In recent years, treaties and organs of jurisdiction have dramatically increased in number. An obvions example is that of the multiplicity of treaties, organs and jurisdictions involved in human rights 1ssues.10 lt seems acccpted practice that States may adhere to different but parallel dispute settlcment mechanisms for parallcl or even similar obligations. As stated by the Arbitral Tribu- nal (ICSID/ITLOS) in the recent Southern Blue:.fin Tuna case:
But the Tribunal recognizes as well that there is a com- monplacc of international law and State practice for more than one treaty to bear upon a particular dispute. There is no reason why a givcn act of a State may not violate its obligations undcr more than one treaty. There is fre- quent/y a para/le/ism of treaties, bath in their substantive content and in their provisions for settlement ol disputes arising thereunder. [ ... ] the conclusion of an implement- ing convention docs not necessarily vacate the obligations imposed by the framework convention upon the parties to the implementing convention.11 ( emphasis added)
There may be situations where two Members agree not to bring one or severa! disputes to the WTO. However, if a Member brings a dispute to the WTO, contrary to a bilateral agreement or to an ex- clusive jurisdiction clause in another treaty, that Mcmber will probably argue that the bilateral agreement or the exclusive juris- diction clause is not applicable or does not cover the matter at issue before the WTO on the bases that the applicable law, the remedies available and the cnforcement mechanisms, etc. are not the same.
Thus, a panel would need to examine the substance of the cl ai ms of WTO violation to assess whether and how they overlap with the
10 SeeRoucounas (1987), 197.
Il A ward on Jurisdiction and Admissibility of 4 August 2000, Southern Blue.fln Tuna Case, Australia and New Zealand v Japan, at p. 91.
Comments on Joost Pauwelyn's Paper 63 provJstOns of the bilateral agreement or the treaty. After all this work, it is doubtful that in the present state of international law, a panel would simply decline jurisdiction and rule that another judi- cial or quasi-judicial body is the most appropriate forum to examine the issue, or has already solved the dispute. Moreover, in the ab- sence of an agreement among states, the princip le of forum non conveniens seems not to be applicable in the present state of inter- nationallaw.12
The same holds truc for an allegation based on the principle of res judicata. Wc agree with Vaughan Lowe that there is no such general principle yet applicable between international tribunals.13 Also, wc doubt that the establishment of the WTO has changed this situation. Furthermore, it would also be very difficult for the princi- ple of res judicata to find application in the context of WTO dis- pute settlement between an international tribunal and a WTO panel, as the notion of 'matter.t4 pursuant to A1ticle 7.1 of the DSU deter- mines the panel's tcrms of reference, which in turn defincs the seope of a pancl's jurisdiction. 15 Even between WTO li ti gants within WTO dispute seUlement, it would still be difficult for the respon- dent to invoke the princip le of res judicata, as confi1med bclow by the Panel in India- Autos:
'Becausc the policy underlying res judicata is to bring litigation of a particular nature to an end at an appropriatc stage, the key toits application should be to compare what has alrcady been ruled on to what is being brought bcforc the adjudicating body in the subsequent proceedings. Both India and the United States have used a comparison bc- tween the 'matter' ruled on in the India - Quantitative Re- strictions case and the 'matter' brought bcfore this Panel in identifying the similarities or dissimilarities between 12 lnfi·a, Lowe (1999), 12.
13 Lowe (1999), 12; Sawaki (1979-80); Fawcett, 5 et seq. and 10. See also Lowe (1996).
14 See the Appellate Body Report in the Guatemala - Cement I, WT/DS60/AB/R, at para. 72, where the Appellate Body stated that the 'matter' referred io the DSB consists of two elements: the spe- cifie measures at issue and the legal basis of the complaint (or the claims).
15 See the Appellate Body Report on India - Patents (US), WT/DSSO/AB/R, at paras. 92-93.
64
Gabrielle Marceau 1 Anastasios Tomazosthe two disputes for the purposes of assessing whcther the issues beforc this Panel can be considered to be res judi- cata. 16 [footnotes omitted]
[
...
]The Panel thcrefore considers that for res judicata to have any possible rolc in WTO dispute seulement, therc should, at the very !cast, be in essence identity between the matter previously ruled on and that subrrùtted to the subsequent panel. This requires identity between both the measures and the claims pertaining to them. There is also, for the pmposcs of res judicata, a requirement of identity of parties which is clearly met with regard to the United States in this instance.' 1 7( footnotes omi tted]
Another issue that Pauwelyn addrcsses is bilateral agreements between WTO Members not to invoke WTO dispute settlement. In this regard, Pauwelyn considers the European Communities' deci- sion to subsequently initiate a dispute in lndia - Autos, dcspitc reaching a mutually agreed solution with India in the context of the lndia - Quantitative Restrictions18 dispute, whereby both parties had agreed to refrain from any action during the phasing-out period on the condition that India complied with its obligations under cer- tain exchange of letters. Although the Panel in India - Autos was able to avoid the issue of whethcr Jndia could rely on the mutually agrced solution on the basis that the agreement did not cover the same matter within the meaning of Article 7.1 of the DSU, Pauwe- lyn is of the vicw that 'any WTO panel would have bccn under an obligation to respect this agreement and to declare that by agree- ment of the parties, it does not have jurisdiction to examine the is- sue'. Wc disagree with Pauwelyn tb at this is an examplc where a Panel would rule that it had no jurisdiction 'because of non-WTO law'. ln our view, the Panel would have bcen able to resolve this issue without having to resort to applying substantive 'non-WTO law'.
The Panel sccmed to agree with India's argument tbat the issue relatcd to the European Communitics' procedural rights under the
16 Panel Report on India - Autos, WT/DS 146/R and Corr.l, WT/DS175/R and Corr. l, para. 7.64.
17 Ibidem, para. 7.66.
18 Panel Report on Jndia-Quantitative Restrictions, WT/DS90/R.
Comments on Joost Pauwef)m's Paper 65 DSU, rather than India's substantive obligations under a covered agreement. ln this regard, the Panel was correct to point out that, 'the status of mutually agreed solutions undcr the DSU and their impact in subsequent dispute settlcment procccdings is not cx- prcssly indicated in the DSU' 19 and that the issue was 'what cffcets it may have on the exercise r~f'procedural rights under the DSU in subsequent proceedings'. 20 In other words, the issue was what ef- fect does the agreement have on the ability of a Mcmber to subse- quently request the establishment of a panel. We believe that this is one of those instances where basic general principlcs of proccdural law could be cmploycd by a panel in a future dispute to detennine whcther a mutually agrced solution negatively affects the proce- dural rights of a complainant in such a way that it bars that Mem- ber's ability to 're-litigate' on a matter that bas alrcady bccn scttlcd.
In other words, as suggested by the Panel in Jndia -Autos, a panel could apply the principle of estoppel in such circumstances.21 Wc also hasten to add that this interpretation would be one in which a panel would be authorized to makc undcr A1iiclc 11 of the DSU.
Since WTO panels arc obliged to presume that WTO Members comply with their international law obligations, they should inter- prct and apply WTO law accordingly. Moreover, since WTO panels and the Appellate Body are quasi-judicial they must, and do comply with basic general princip les of proccdurallaw. Both panels and the Appellate Body have interpreted and applied Article 11 of the DSU to encompass general principles of proccdural law and duc proccss mles, which have evolved into rules on the burden of proof, on the representation of parties before panels, standing, judicial economy and so forth. Here, we generally agree with Pauwelyn's assertion that, 'as important as those processcs of references to non- WTO law may be, it is unlikely they determine the substantive outcome of a WTO dispute [ ... ] applying the Im·gcly procedural mies of gen- eral international law may cventually decide a case, but hardly in- fluences its substantive merits.'
Finally, it is also worth citing the following excerpt from Jndia - Autos, where the Panel implies that it is not necessarily interpret-
ing and applying non-WTO law (i.e., a non-covered agreement) when examining a mutually agreed solution:
19 Supra, l/1dia- Autos, para. 7.113.
20 Ibidem, para. 7 .116.
21 Ibidem, footnote 364.
66 Gabrielle Marceau 1 Anastasios Tomazos
'[ ... ] These possibilities suggest that the issue cannat ncc- essarily be resolved simply through an acknowlcdgement that an MAS [mutually agreed solution] is not a covered agreement as was argued by the EC. That argument sim- ply is another way of noting that the DSU does not cx- prcssly give a panel a mandate to consider whcthcr a 'violation' of such an agreement might exist as a distinct basis for a dispute under the DSU. It does not necessarily prove that a panel may not in somc circumstances need to considcr the terms of such agreed solutions in order to fui- fil! its duties under the DSU. Here the Panel notes that disputes concerning the application of the DSU itse1f can be t~e abject of proceedings under the DSU. This might possibly includc disputes concerning mutually agreed so- lutions, since these are expressly referred to in the DSU.'22
III. Where Non-WTO Law Justifies
What Would Otherwise Be a Violation ofWTO Law Before discussing the relatîonship between WTO law and general international law and the alleged capacity of WTO adjudicating bodies to assess Mcmbers' compliance with non-WTO trcaty provi- sions, one must understand the manner in which the WTO dispute settlement process functions. ln many ways, the WTO dispute sct- tlemcnt system is an attractive forum to settle disputes for States that are members of the WTO as it can be triggercd fairly easily and quickly. Also, another appea1ing feature is that panels and the Ap- pellate Body are expected to rcnder relativcly quick decisions. Vir- tually any allegation would gcnerally suffice to fonnally trigger the WTO dispute seUlement process through a simple request for con- sultations in writing, copied to the DSB. Ali Members are presumed to have an economie and legal interest to initiate a WTO dispute settlemcnt mechanism. 23 As noted above, once triggcrcd, the WTO dispute scttlement system is automatic in view of the so-called negative consensus rule found in Article 6.1 DSU.
22 Ibidem, footnote 364.
23 However, in light of the negative consensus rule, nothing would pre- vent a Member from initialing a formai WTO dispute even if that Member did not have either an economie or legal interest.
Comments on Joost Pauwelyn's Paper 67
As previously mentioned, Article 23 of the DSU is arguably one of the most fundamental provisions of the DSU. One of the unique features of the WTO is that it bas managcd to rcgulate and limit unauthorized unilateral countermeasures from powerful Mem- bers. The WTO system of law contains, inter alia, specifie: (1) rights and obligations (2) cl ai ms and causes of action (3) violations (4) enforcement meehanisms and (5) remedies in case of violation.
The DSU defines the jurisdiction, the capacity and the mandate of panels (and the Appellate Body) with reference to (1) allegations of WTO violations by the complaining party(ies) (2) the specifie type of remedies/conclusions that panels and the Appcllatc Body may recommend and (3) the prohibition not to add to or diminish WTO law. Indeed, paragraph 1 of Article 23 of the DSU has becn inter- preted as bcing an 'exclusive dispute settlement clause'.24 ·
The mandate of panels and the Appellate Body is to determine whcthcr provisions of the WTO 'covered agreements' have been violated. Pm·suant to Article 1.1, the DSU applics to disputes brought undcr the covered agreements. The covered agreements listed in Appcndix l of the DSU arc all the WTO multilateral trade agreements, (exeept the Trade-Relatcd Review Mechanism) and the plurilateral agreements, to the extent that Members have adopted the latter. The covcrcd agreements would also include WTO deci- sions and secondary legislation. Article 4 provides that consulta- tions can be initiated on allegations of violations of any of the cov- ered agreements. Atticle 7.1 states that the mandate of the panel is '(t)o examine, in the light of the relevant provisions in (namc of the covered agreement(s) cited by the parties to the dispute), the matter refetTed to the DSB by the Member in document [ ... ] and to make such findings as will assist the DSB in making the recommcndations or in giving the rulings provided.for in thatlthose agreement(.\)' (em- phasis added). Aliicle 7.2 adds that 'Panels shaH address the relevant provisions in any covered agreement or agreements citcd by the par- ties to the dispute' (emphasis added). Article 11 of the DSU also provides for a limitcd jurisdiction for panels, which is circum- scribed by the covered agreements. Tt requircs a panel to 'make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and con- formity with the relevant covered agreements, and make such othcr 24 Panel Report on US- Section 301 Ii·ade Act, WT/DS 152/R, at para.
7.43.
68 Gabrielle Marceau 1 Anastasios Tomazos
findings as will assist the DSB in making recommendations or in giving the rulings provided for in the covered agreements' (empha- sis addcd).
Final! y, Article 19.1 of the DSU provides th at the standard rec- ommendation is that the losing Member 'brings its measure into conformity with that [covered] agreement(s)'. No other conclusion or remedy is envisaged. At most, WTO adjudicating bodies cau make 'suggestions'25 asto the manner in which the measure should be brought into conformity. However, we hasten to add that such suggestions are not binding and cannat be enforced. Therefore, a WTO adjudicating body could not enforce a suggestion regarding the manner in which a Mcmber could amcnd its Iaws, regulations and the like, so as to bring them into conformity with non-WTO norms, unless it could be related to compliance with a provision of the covered agreements.
The limited jurisdiction of WTO adjudicating bodies is con- fhmed by the cautious jurisprudence of the Appellate Body. In EC - Poultry, Brazil elaimecl that the European Communitics had not provided it with the full allocation of a tariff quota on frozen chicken imports, contrary to obligations under the EC schedules and their bilateral 'Oilseeds Agreement'. Here, the Appel tate Body acknowledged that the Oilseeds Agreement was not 'applicable law' and thus could not be enforced by WTO dispute settlemcnt mecha- nism. It stated:
'In our vicw, it is not necessary to have recourse to either Article 59.1 or Article 30.3 of the Vienna Convention ...
As such, it [the Schedule of the EC] forms part of the multilateral obligations under the WTO Agreement. The Oilseeds Agreement, in contrast, is a bilateral agreement ncgotiated by the European Communities and Brazil un- der A11icle XXVIII of the GATT 1947, as part of the resolution of the dispute in EEC- Oilseeds. As such, the Oilsecds Agreement is not a "covered agreement" within the meaning of Articles 1 and 2 of the DSU. Nor is the Oilsecds Agreement part of the multilateral obligations accepted by Brazil and the European Communities pursu- ant to the WTO Agreement, which came into effect on 1
25 Article 19.1 in.flne reads as follows: 'ln additions toits recommenda- tions, the panel or the Appellate Body may suggest ways in which the Member concerned could implement the recommendations.'
Comments on Joost Pauwelyn's Paper
January 1995. The Oilseeds Agreement is not cited in any Annex to the WTO Agreement. Although the provisions of certain legal instruments that entcrcd into force under the GATT 1947 were made part of the GATT 1994 pw·suant to the language in Annex lA incorporating the GATT 1994 into the WTO Agreement, the Oilseeds Agreement is not one of tho se legal instruments. '26
69
According to the Appellate Body, Schedule LXXX rather than the Oilseeds Agreement, contained the relevant obligations of the European Communities under the WTO Agreement. Therefore, it was Schedule LXXX, rather than the Oilseeds Agreement, which formed the legal basis for this dispute and which must be inter- preted in accordance with 'customary rules of interpretation of public international law' undcr Article 3.2 of the DSU.27 This seems to suggest that even agreements negotiated under the auspices of the WTO Agreement, such as those negotiated under Article XXVIII of GA TT, remain useful tools of intei]Jretation, but as such, cannot be en.forced by WTO adjudicating bodies (unless the WTO provision explicitly provides otherwise).28
26 Appellate Body Report on EC-Pou/tl)', WT/DS69/AB/R, at para.
79.
27 Appellate Body Report on EC- PoulliJi, WT/DS69/AB/R, at para.
81. The Appellate Body continued and stated that the Oilseed Agreement could be used pursuant to Article 32 of the Vienna Con- vention, as part ofthe circumstances of the negotiation of the Sched- ule.
28 See the ru ling of the Chairman in United States - Margin of Prefer- ences, 9 August 1949, BISD lill 1 to the effect that a bilateral agree- ment cannot be enforced by a GATT Panel. The issue of the WTO compatibility of a regional trade agreement with WTO provisions, including Article XXIV, is not really different since, should panels have wide jurisdiction to assess the overall compatibility of regional trade agreements, panels would still be examining whether a Mem- ber's specifie measure or its regional trade agreement with other Members is compatible with the WTO agreements, taking into ac- count the possible exceptions authorized by Article XXIV. In all cases panels would not be 'enforcing' the provisions of the regional trade agreement, something thal could be done by the parties to the regional trade agreement only pursuant to the dispute seUlement pro- cedures of the regional trade agreement itself. On the relationship
70 Gabrielle Marceau 1 Anastasios Tomazos
Moreover, in EC- Bananas ill, the Appellate Body upheld the panel's decision that it 'had no alternative but to examine the provi- sions' of a non-WTO agreement 'in so far as it is neccssary' to in- terprct WTO rules (the Lomé waiver rcfcn·ed to the Lomé Conven- tion and the panel was cxamining the scope of the Lomé Waivcr).29 The implication is that the role of non-WTO instruments is limited to interpreting the non-WTO rule to ex te nt necessary to decide the matter at hand. Similarly, a panel may be callcd upon in the future to examine the Kimberley Certification Schemc for rough diamonds -a non-WTO agreement- 'in so far as it is necessary' to interpret the scope of the Kimberley Waiver30 which refers to the Kimberley Certification Scheme.
Having said that the WTO adjudicating bodies have a limited jurisdiction - to interpret and apply the covered agreements - does not mean that the WTO should be interpreted and applied in isola- tion from the rest of international law. In its first report, US - Gasoline, the Appellate Body noted that the WTO agreements must not be interpreted in 'clinicat isolation' from public international law.31 In this regard, the Appcllate Body citcd Article 3.2 of the DSU which rcquires panels and the Appellate Body to use 'custom- ary rules of interpretation' to intcrpret the provisions of the WTO agreements. Article 3.2 provides:
'[ ... ]The dispute seUlement system of the WTO] serves to clarify the existing provisions of those [WTO] agreements in accordance with customary rules of interpretation of public intemationallaw [ ... ].'
Customary rules of international law include (at !east) Articles 31, 32 and 33 of the Vienna Convention. Of particular interest is Article 31.3(c) which providcs that when intcrpreting the ordinary meaning of treaty terms, an interpreter shall also 'take into account' any applicable rule of international law. Article 31.3(c) would bring
between the dispute settlement procedures under regional trade agreements and lhat of the GA TT or the WTO see Marceau ( 1997).
29 Appellate Body Report on EC- Bananas Ill , WT/DS27/AB/R, at para. 162.
30 Waiver Cuncerning Kimberly Process Certification Scheme for Rough Diamonds: Communication, G/C/W/432//Rev.1 (24 February, 2003).
31 Appellate Body Report on US - Gasoline, WT /DS2/ AB/R at page 17. See also McRae ( 1997), 99.
Comments on Joost Pauwelyn's Paper 71
into the interpretative analysis of any WTO provision a series of relevant international rights and obligations which may alter and influence the meaning of WTO provisions. Article 31.3( e) is a tool, an indicator of the norms/rules of international law that must be taken into aceount in the interpretation of specifie treaty provisions, such as thosc of the WTO. ln fact, Article 31.3(c) of the Vienna Convention can be viewed as an obligation on the interpreter to be 'aware of- and talee into account- what is otherwise intemational law betwccn the WTO disputing parties. In sum, Article 31.3( c) of the Vicnna Convention aims at promoting some 'coherence' in in- ternational law, so that the treaty being interpreted and other rele- vant international law rulcs are rcad in a way that mutually supports and avoids conflicts with other trcatics.
The WTO Agreement, as any other treaty, should be inter- preted in a fashion that takcs into aceount other relevant and appli- cable rules of international law. In doing so in good faith, it should generally be possible to interpret WTO provisions in a way that allow WTO Members to respect all thcir international law obliga- tions and other States' rights.
Wc agree with Donald McRae that Article 3.2 of the DSU is a mandate for interpreting the agreement and the real conccrn is:
'[ ... ] whether the treaty obligations of the WTO Members are to be supplemented by additional obligations dcrivcd from customary international law. On the face of it, Arti- cle 3.2 of the DSU says they cannot. Dispute settlement cannat add to the obligations of the WTO Members as set out in the Agreements. '32
'Principles of customary international law do not 1eap- frog into trcaty regimes an add to substantive obligations undcr those regimes. They exist alongside and are rele- vant to the interpretation and application of the substan-
. 1 ,3}
tlve treaty ru es. --
This distinction seems to have been recognized by WTO juris- prudence. Even if WTO applicable law seems to exclude the direct application of rules on State rcsponsibility,34 or sorne of them, these
32 McRae (2003), 713.
33 ibidem, 715
34 See the Panel Report in US- Certain EC Products at para. 6.133: ' [ ... ] In short the regime of counter-measures, reprisais or retaliatory measures has been strictly regulated under the WTO Agreement. lt is
72 Gabrielle Marceau 1 Anastasios Tomazos
rules - to the extent they arc customary - bind WTO Members and remain a relevant benchmark for the interpretation of WTO law which is prcsumed to cvolvc consistently with international law. ln US- Cotton Yarn, the Appellate Body, after analyzing the safe- guard provisions of the WTO Agreement on Textiles and Clothing, stated:
'Our view is supported further by the rules of general in- ternational law on statc rcsponsibility, which require that countenneasures in response to brcaches by states of their international obligations be commensurate with the injury sufferecl. '35
ln a nutshell, the mandate of panels and the Appellate Body is defincd and limited: to intcrprct WTO law and decide whether a provision of the covcrcd agreements has been violated. ln doing so they apply and enforce the WTO law. ln accordance with their re- spective mandates, the WTO panels and the Appellate Body only have the jurisdiction to interpret and apply WTO law. As such, they cannot interpret, let atone reach any legal conclusions of violation or compliance with other treaties or customs in complete isolation from the covcred agreements. If and when they do so, it is only to the extent necessmy to interpret provisions of the covered agree- ments.
As mentioned abovc, WTO panels and the Appellate Body must presume that WTO Mcmbers comply with their international law obligations and therefore, they should interpret and apply WTO law accordingly. Moreover, sincc WTO panels and the Appellate
now only in the institutional fi"amework of the WTO/DSB that the United States could obtain a WTO compatible determination thal the European Communities violated the WTO Agreement, and it is only in the institutiona1 framework of the WTO/DSB thal the United States could ob tain the authorization to exercise remediai action.' [footnote 170: 'Therefore, in the WTO context, the provision of Arti- cle 60 of the Vi enna Convention on the Laws of Treaties ( 1969) on this matter does not apply since the adoption of the more specifie provisions of Article 23 of the DSU .']
35 Appellate Body Report on United States - Cotton Yarn, WT/DS 192/ AB/R, at para. 120. The same is true for the use of the principle of 'due diligence' in paras. 67, 76, 77 and 79 as with the use of' good faith' in para. 81 of the same Report.
Comments on Joost Pauwelyn's Paper 73 Body are quasi-judicial they must, and do comply with basic gen- eral princip les of procedurallaw.
Pauwelyn, however, limits the scopc for a coherent interpreta- tion bctween WTO provisions and non-WTO provisions. To do so, Pauwelyn asserts as 'conflicts' differences between treaty provi- sions. For instance, he considcrs that in situations whcrc a Mcmber invokes compliance with an Multilateral Environmental Agreement (MEA) as justification under Article XX of GA TT 1994 for a brcach of a WTO rule, a 'conflict' may exist between the MEA and Article Xl of GATT 1994, which generally disallows trade prohibi- tions and restrictions other than duties, taxes or other charges, de- spite the existence and applicability of Article XX of GA TT 1994.
Si nec Article XX of GATT 1994 explicitly allows Members to give priority to policics other than trade, including those policies af- fected by an MEA, it is erroneous to claim that there is conflict between a WTO rule that disallows trade prohibitions and restric- tions and the MEA.
In international law, for a 'conflict' to exist between two trea- tics, three conditions have to be met. First, the treaties must have somc overlap in membership. Second, the treaties must cover the same substantive subject matter. Otherwise, there would be no pos- sibility for conflict. Third, the provisions must conflict, in the sense that the provisions must impose mutually exclusive obligations.36 The general principle of good faith in the interpretation and appli- cation of treaties call for a presumption against conflicts. The pre- sumption against conflict is especially reinforced in cases where separate agreements are concludcd bctwccn the same parties, since it can be presumed that they are meant to be consistent with one another in the absence of any evidence to the contrmy. 37
For a cont1ict to exist, it must be established that a provision of the WTO Agreement mandates an action that a provision of another treaty prohibits or vice-versa, when a provision of another treaty mandates an action that the WTO Agreement prohibits. The occur- rence of such a situation would be quite rare. In fact, one would be required to demonstrate that compliance with the WTO necessitates violation of that other treaty.
36 Jennings 1 Watts (1992), 1280; Fitzmaurice (1957), 237; Sinclair (1984), 97.
37 See alsoJenks (1953), 425 et seq.
74 Gabrielle Marceau/ Anastasios Tomazos
In the WTO context,38 the Appellate Body in Guatemala- Ce- mentI elaborated on the issue of the possibility of conflicts bctwcen the special or additional mles of procedures in Appendix 2 of the DSU with respect to anti-dumping disputes and the general provi- sions of the DSU and concluded as follows:
'[ ... ] A special or additional provision should only be found to prevail over a provision of the DSU in a situation whcre adherence to the one provision will lead to a viola- tion of the other provision, that is, in the case of a conjlict between them. An interpreter must, therefore, idcntify an inconsistency or a difference between a provision of the DSU and a special or additional provision of a covered agreement before concluding that the latter prevails and th at the provision of the DSU does not apply ,'39
Conflicts are concemed with situations where two 'obliga- tions' cannat be reconciled. If the issue is one in which a treaty contains a right and the other an obligation a conflict cannat exist.
'Rights' within a treaty and contained in othcr treaties, must also be respcctcd and enforced by States at all times. There is, however, no need to cxpand the concept of conflict as other ru les of international law ensurc the respect, and in some circumstance the primacy of provisions allowing for rights over other provisions imposing 'obli- gations':
'[ ... ] [T]cchnically speaking, there is a conflict when two (or more) trcaty instruments contain obligations which cannat be complied with simultaneously. [ ... ] Not every such divergence constitutes a conflict, howcvcr.[ ... ] In- compatibility of contents is an essential condition of con- flict.'40
38 We emphasize here that the Appellate Body has held that the WTO Agreement is a 'single undertaking' and a 'inseparable package of rights and disciplines'; See Brazil - Desiccated Coconut, WT/DS22/AB!R, 12 et seq. and Argentina - FootJvear (EC) WT IDS 1211 A BIR, para. 81, respectively.
39 Appellate Body Report on Guatemala- Cement 1, WT/DS60/AB/R, para. 60.
40 Karl (1984), 468; see also Jenks (1953), 425 et seq. For, in such a case, it is possible for a State which is a signatory of both treaties to comply with both treaties at the same time. The presumption against cont1ict is especially reinforced in cases where separate agreements
Comments on Joost Pauwe!yn's Paper
' [ ... ] a conflict of law-making treaties arises only where simultaneous compliance with the obligations of different instruments is impossible. [ ... ] There is no conflict if the obligations of one instrument arc stricter than, but not in- compatible with, those of another, or if it is possible to comply with the obligations of one instrument by refrain- ing from exercising a privilcgc or discretion accorded by another. [ ... ] The presumption against conflict is espc- cially reinforced in cases whcre separate agreements arc concluded between the same pmties, since it can be pre- sumed that they are meant to be consistent with them- selves, failing any evidence to the contrmy. '41
75
In taking into account explicit 'rights' provided for (within a treaty or in anothcr trcaty), one may use the lex specialis derogat generah\· (lex .\pecialis) prineiple of interpretation which favours the application of a more specifie provision ovcr a general one.
Thcrefore, it may emerge from the intention of the parties and in the application of the lex specialis principlc that a State exercises an express and more specifie right provided for in an earlier or later treaty, albcit appearing inconsistent with a subsequent or earlier treaty obligation drafted in general tcrms.
Contrary to Pauwelyn's argument, no conflicts exists between Article XX of GA TT and the basic market access provisions of the GATT (Articles I, II, III and XI). The Appellate Body has stated that, in assessing the interpretation and application of Article XX, there is a need to maintain a 'balance' between these provisions and has rcferred to this 'balance' in tenns of weighing the 'rights and obligations' ofMembers under both sets ofthcse provisions.42
In increasing the number of possible conflicts, Pauwelyn gives the impression that the identification of a conflict or severa! con- flicts would facilitate the adjudicatory duties of panels and the Ap- pellate Body and ensure an objective resolution of the matter and the respect of international law. In expanding the jurisdiction of the are concluded between the same parties, since it can be presumed thal they are meant to be consistent with each other, failing any evi- dence to the contrary; see also Vierdag ( 1988), 1 00; Jennings 1 Watts (1992), 1280; Fitzmaurice ( 1957), 23 7; and Sinclair (1984), 97.
41 Jenks (1953).
42 See the Appellate Body Report on US ~-Shrimp, WT/DS58/ AB/R, para. 142.
76 Gabrielle Marceau 1 Anastasios Tomazos
WTO adjudicating bodies, and in encouraging them to resolve ali potential conflicts, Pauwelyn asks WTO panels and the Appellate Body to resolve issues that Members have not been able to rccon- cile (or may not want to reconcile). Pauwelyn sccms to suggcst that in assessing potential conllicts, WTO panels and Appellate Body will be able to resolve the matter at issue more appropriately than if it limits itself to interpreting the WTO provision coherently with othcr regimes of internatîonallaw. This cannat be correct.
Even in a rare occasion of conflict bctween two treaty provi- sions, determining which of the two provisions supersedcs the othcr is not a simple exercise. The WTO adjudieating body would need to interpret the other treaty and decide whcthcr the WTO Member in- voking it has eomplied with the procedural and substantive provi- sion of that other treaty. But, wbat if, applying Pauwelyn's treaty contlict rulcs, a WTO panel reaches the conclusion that the non- WTO treaty should prevail, but that the WTO Member invoking such non- WTO treaty has not complied with procedural require- ment(s) of that other trcaty. Should the WTO adjudicating body rule that the non- WTO provision prevails and that there is no WTO violation, dcspitc that Member's non-compliance with the proce- dural requirement(s) of the other treaty? ln our view, Pauwe!yn's approach creatcs more problems than solutions.
If the WTO applicable law cannot be interpreted so as to avoid conflict of norms with a provision of anothcr treaty, WTO adjudi- cating bodies would not be able to en force non-WTO provisions or give them direct effect in the WTO applicable law, if the outcome was that the superseding provision added to or diminished or even amended the rigbts and obligations in the covcred agreements. Set- ting as ide jus co gens, States do have the right to create judicial and remedy systems that would not be able to enforce ail international obligations of the same States. Consequently, these non-WTO norms arc binding on the same States (also WTO Members), and if States violatc them, they will be held responsible, but in another jurisdiction (and rules on State responsibility may apply). Botb systems of State responsibility opcrate in parallel; the WTO simply being a specifie one. Our approach simply rcllects the present state of international law which is characterized by an impcrfcct coher- ence between international legal regimes and jurisdictions exists.
Comments on Joost Pmtwe~vn's Paper 77 Elsewhere,43 Pauwelyn has also argued that Members arc prc- sumed to have accepted the binding effect and the direct application of general international law into the WTO law. According to Pau- welyn, general international law can till in the gaps of the WTO trcaty and provisions of non-WTO trcatics that arc binding on the parties can be invokcd in defense of allcgcd WTO violations. lfthe relevant customary conflict rules dcmonstratc that a non- WTO rule must prcvail, 'then the WTO rule cannat be applied (and the defen- dant wins)'. For Pauwelyn, this would not result in 'requiring the WTO panel to judicially en force the other rule of international law' and 'the panel would not be 'diminishing' the rights of the com- plainants, as the complainant would have agreed to these conflict- ing ru les in the first place'.
ln addition to being contrat-y to the wording of the DSU, Pau- welyn's suggestion would require WTO adjudicating bodies to in- terpret the other trcaty to decide on its compliance or violation by the eoncerned WTO Member and to draw legal consequences over and above the provisions of the WTO treaty. As previously stated, the WTO adjudicating bodies are not courts of general jurisdiction and they cannat interpret and apply all treaties involving WTO Members. The covered agreements are explicitly listed and it can- nat be presumed that Mcmbers wanted to provide the WTO reme- diai system to enforce obligations and rights other than those listed in the WTO treaty. If they were to allow a non-WTO provision to supersede and set aside a WTO provision and therefore, give it le- gal effect and enforce a non-WTO provision in superseding a WTO provision, they would be adding or diminishing the WTO eovcred agreements (or even amending it). There is no evidence whatsoever to even suggcst that during the Uruguay Round the drafters of the WTO treaty ever wanted to providc non-WTO nonns with direct effect into WTO law and allow Members to benefit from free use of the WTO remedia] mechanism to cnforcc rights and obligations other than th ose of the WTO treaty.
ln our view, Pauwelyn's position disregards the fact that no perfect coherence between international legal regimes cxists and thcrc is not yet a perfcct organisational coherence of international jurisdictions. Whcn faccd with imperfect sharing of international re- sponsibilities, Pauwelyn ironically elevates WTO panels and the Appellate Body into a world dictator of sorts. Moreover, Pauwelyn 43 Pauwelyn (2001).
78 Gabrielle Marceau 1 Anastasios Tomazos
overlooks that a solution to any eonflict between WTO rulcs and other non-WTO ru les should also talee into aceount the legal fact that sovereign States decided to agree to trade rules and an en- forcement mechanism different from that of othcr international ob- ligations. Whether this is good or bad, is a question beyond the seope of this paper.
Impmtantly, genuine situations of eontliet of nonns will oeeur very rarely and through good faith interpretation, WTO law and other provisions of international law ean generally be applicd har- moniously and effectivcly. Having said that WTO panels and the Appellate Body eannot intcrprct and en force non-WTO other than to the extent necessary to interpret and apply WTO provisions, one should not underestimate the coherence that already exists betwccn WTO law and the other systems of international law. lt is our sug- gestion that conflict of norms should continue to be construed nar- rowly. A broad definition of conflict would lcad to a result in which a third party (an adjudication body or a treaty interpreter) is con- feJTed the power to set aside provisions that have been voluntarily ncgotiated by States.
IV. Conclusion
lt is important to cmphasize that States must at ail times comply with all thcir international obligations and respect the rights of other States.
The issue of WTO Members' State rcsponsibility for a viola- tion of an international obligation or their obligation to respect other States' rights under treaties other than the WTO is not a mat- ter for the WTO dispute settlement. It is important to recall that WTO Members rcmain responsible for the consequence of viola- tions of their international obligations. In situations where a non- WTO treaty provision could potcntially supersede a WTO provi- sion, but could not be dircctly applicable into the WTO legal sys- tem or enforced by WTO adjudieating bodies, the State invoking the non-WTO provision would still be able to invokc the applica- tion of the general international law mies on State responsibility against other States (also WTO Members) or other relevant systems oflaw for the violation of the non-WTO provisions.44
44 Paragraph 5 of Article 30 of the Vienna Convention on the Law of Treaties provides thal: 'Paragraph 4 [lex posterior] is without preju- dice to article 41, or to any question of the terminal ion or suspension
Comments on Joost Pau>veTyn's Paper 79 At the moment, in international law, there does not seem to be any complete co-ordination of systems of international law and there are severa! treaties on multiple and overlapping mattcrs. A single measure may violate a treaty and be consistent with another one. lt is thus possible to envisage a situation where an international tribunal would reach a conclusion that a measure (that is also [patt of] a WTO measure) is inconsistent with a (non-WTO) treaty, while the WTO adjudicating body may reach the conclusion that the same measure is consistent with the WTO treaty. As required under in- ternational law, the measure would have to be modified to comply with the non-WTO treaty law while continuing to be compatible with WTO law; and most of the ti me this should be feasiblc. The ruling of the WTO adjudicating body would only relate to the WTO aspects of the measure and would not affect or deal with the com- patibility of the same measurc with the non-WTO treaty.
Various suggestions have been offered to try and 'constitution- alize' international courts and jurisdictions. We still believe that States' multiple international rights and obligations can be inter- preted and applied harmoniously and coherently. In this regard, wc share the following perspective, that seems the most astute in the present state of international law:
'With the greatest respect to the past two Presidents of the International Comt, 1 do not share their view that the mode! of Atticle 234 (the renumbered Article 177) of the Rome Treaty provides an answer. It is simply cumber- some and unrcalistic to suppose that other tribunals would wish to refer points of general international law to the In- tcmational Court of Justice. lndeed, the very rcason for their establishment as separate judicial instances militates against a notion of intra-judicial reference.
The bctter way forward, in my view, is for us all to kecp ourselves well informed. Thus the European Court of Jus- tice will want to keep abreast of the case law of the inter- national Court, particularly whcn it deals with treaty law or mattcrs of customary international law; and the Inter- national Court will want to make sure it fully understands of the operation of a treaty under article 60 or to any question of re- sponsibility which may arise for a State from the conclusion or appli- cation of a treaty, the provisions of which are incompatible with its obligations towards another State under another treaty.'
80 Gabrielle Marceau 1 Anastasios Tomazos
the circumstances in which these issues arise for its sistcr court in Luxembourg [ .. .]. '45
In conclusion, despitc somc criticisms offered on OW' col- lcague's papcr, it should be borne in mind that wc grcatly appreci- ate yct another of his outstanding contributions to the field of public international law and WTO law as wcll as the relationship betwcen both. In the final analysis, howcver, Joost's assertion that the pur- pose of his paper is to take the relcvance of non-WTO law bcforc WTO panels a 'step further' is instructive, inasmuch as WTO pan- els should be reluctant, at present, to take that 'step further'.
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