The Application of other public international laws in WTO dispute settlement.

The Application of other public international laws in WTO dispute settlement. Abstract. While WTO laws are international treaties and hence part of international law, they were not as such regarded as they are found in that corpus. As a result, the role of other public international law within the WTO dispute settlement is not yet clear. In that whether, the dispute settlement body of the WTO in deciding cases would consult the rules and principles of other public international laws is not well articulated. The paper will examine the applicability of other international laws in the WTO dispute settlement on the basis of the WTO frame work and jurisprudence of international law. Finally I argue that other international laws can be applied in the settlement of disputes under the WTO in case where they are relevant and proper for the theme. Key words: WTO, Other General Public International Laws, And Dispute Settlement. Introduction As provided under art 38(1) of the ICJ statute international treaties are part of international law 1. Since the WTO laws are multi lateral treaties between states, they are part of the corpus of international laws. Hence, in areas that the WTO do not address; as usually made in other international cases, other public international laws can be used by the dispute settlement body (DSB) of the WTO. However, mostly, we thought that WTO is an isolated from other public international laws. The applicability or otherwise of parts of international law other than customary international law is not clearly addressed by WTO laws. Besides, if they are to be applied in the dispute settlement, their role in the proceeding is not clear. Are they for mere interpretation or can be served as a proper law in the determination of subject matter is not clear. In this paper, the applicability of other public international laws which are recognized by WTO laws and other not recognized will be discussed. Accordingly, the Avenues whereby the other public international laws will be applied and their role in WTO proceedings will be discussed. Moreover, the interaction between WTO laws and such other public international laws will be examined. Finally, concluding and suggestion remark are given. 1 As per Art 38(1) of ICJ, sources of international laws are international treaties, CIL, the general principles of law, judicial decisions and the teachings of the most highly qualified publicists of the various nations. 1

1. Applicable laws recognized by the WTO legal framework. Basically, as we can see from the readings of 3.4 and 7.1 of the DSU Applicable laws under the WTO are the covered agreements 2. However, customary international law (CIL) 3 is also regarded as a law for interpretation. The only explicitly recognized other public international law under the DSU is CIL. But, does the reference to the customary international law mean exclude the application of other rules of public international law? is basic questions to be answered. 2. Applicability of other public internationals in Dispute settlement (of WTO). 2.1. Views: As we discussed at the beginning of the paper, the WTO agreements are international treaties like others and hence they are under the realm of public international law. However, there is still a debate with regarded to the interaction between general public international law and specific international treaties (e.g. WTO laws) within it. The first approach stated that WTO is isolated and self contained rules and hence for the matter of its concern other public international laws are excluded and cannot be applied. In that it suggested that for other laws to be applied the WTO laws need to allow explicitly 4. By contrast the second view stated that there are no special regimes in the sense of treaty regimes that are completely isolated from all rules of general international law 5. This view suggested that it is well supported by authoritative international decisions that for general international law to become applicable law within a specialized regime such as the WTO, it is not necessary that such treaty should expressly provide for such eventuality 6. Quite often, pragmatically and legally there is no a self contained international treaty. Hence, the second view looks tenable. Hence, WTO, as parts of international law, it gives and takes rules from the treasury. In case where international tribunal entertain cases, if a certain international law is relevant and fit to be applied, they can use of it. According to the Appellate Body, Article 3.2 reflects a measure of recognition that the [GATT 2 APPENDIX 1 of DSU: Marrakesh Agreement, Multilateral Trade Agreements, and Plurilateral Trade Agreements. 3 art 3.2 of the DSU 4 Like in the case of Article 3.2 of the DSU. 5 See Pieter Jan Kuijper, The Law of GATT as a Special Field of International Law, Netherlands Yearbook of International Law, vol. 25, (1994) p, 227 6 R Rajesh Babu, Understanding the Role Of International Law In WTO Law, Indian Yearbook of International Law and Policy (2009) p. 292. 2

1994] is not to be read in clinical isolation from public international law. 7 Thus, by the mere fact that WTO is found under the system of international laws, other international laws will apply in WTO dispute settlements in so far as they are not add or diminish the rights and obligations stated under the covered agreement 8. 2.2. WTO pertaining to the application of such other international laws? Unlike the case of the UN convention on the law of the sea 9, the WTO does not provide the potential applicability of other public international laws in disputes in a clear and sufficient manner. At a glance the DSU seems base itself on provisions of the covered agreements. As we can see under art 3.2; of the DSU and art 17.6(ii) of anti damping agreement customary international law is recognized among the public international laws. Similarly, under art 3.10 of the DSU, disputant parties are required to act in good faith in the proceedings. Hence, as one general principle of international law principle of good faith seems recognized as a procedural role of value in the proceedings. Thus, as parts of other public international law CIL and principle of good faith (as a general principle of law) can be applied in the dispute settlement. The applicability of other international law such as international conventions, general principles and other subsidiary laws within the WTO subject matter dealings are not clearly put under the WTO laws. 2.3. So can other public international laws which are not recognized by the WTO laws be applied by the DSB? First of all, the explicit recognition of CIL under the DSU does not mean that other public international laws are excluded from the ambit of the WTO system. Confirming some rules of general international law does not amount to excluding all others 10. Rather, the absence of an explicit exclusion must be regarded as a continuation or implicit acceptance of the rules in Question. Hence, other parts of public international law such as general principles of law, and international judicial decisions will be applied in the dispute settlement. As said the WTO laws 7 Appellate Body Report, United States Standards for Reformulated and Conventional Gasoline (US Gasoline), WT/DS2/AB/R, adopted 20 May 1996, DSR 1996: page 17. 8 art 19.2 of DSU 9 The UN Convention on the Law of the Sea provides that the International Tribunal for the Law of the Sea "shall apply other rules of international law not incompatible with this Convention". art 293(1) 10 Joost Pauwelyn, the role of international law in WTO. The American Journal of International Law August 2010. p. 541. 3

are part of international law, and hence, the system of general public international laws will be applied in the settlement of cases in the WTO. As soon as states contract with one another, they do so automatically and necessarily within the system of international law. Thus, as other international tribunals use of all sources of international law, the settlement body of the WTO can use of those other public international laws at least to the extent that these have not been contracted out, deviated from, or otherwise replaced. As a matter of fact no law is full or self sufficient. The same holds to WTO. Thus, other international treaties and general principles of law can be used in the settlement proceedings. In the same vein, in a given dispute, the states are not prohibited from bringing claims which are also or largely sustained by rules other than those contained within the covered agreements 11. Equally, The Panel in Indonesia Automobiles moreover raised a general presumption that States negotiating a treaty have prior commitments in mind and will continue to abide by them unless explicit wording to the contrary reflects a different intent 12. 2. 3.1. Avenues by which other international laws will apply A. As an Aid to interpretation. The DSB in interpreting the covered agreements usually used customary international laws 13. it is Article 31 of VCLT which is recognized as representing the customary rules of interpretation of public international law, play a significant role in clarifying the provisions of the covered agreements, and thereby contributing towards enhancing security and predictability of the multilateral legal system. The Panel and the appellate body explicitly recognize the VCLT in providing customary rules of interpretation of public international law Pursuant to DSU Article 3.2 14. Therefore, even though not all WTO Members are party to the VCLT, to the extent that these provisions reflect customary international law, they are binding on all WTO Members. 11 Supra R Rajesh Babu, p. 294. 12 Panel Report, Indonesia Automobile, WT/DS54/R 23, at 14.28. 13 for instance, in Canada-Term of Patent Protection, where the Appellate Body supported its interpretation of Article 70 of TRIPS by reference to Article 28 of the Vienna Convention on the Law of Treaties, which establishes a presumption against the retroactive effect of treaties, Similarly, in EC- Bananas, where both the Panel and the Appellate Body interpreted a waiver expressly referring to the Lomé Convention in light of that Convention. 14 Appellate Body Report, US Gasoline, Appellate Body Report, and Japan Taxes on Alcoholic Beverages (Japan Alcoholic Beverages II) 4

B. Evidence of Compliance with Obligations. Other non WTO public international laws may be served as or consulted by the DSB as a proof of state parties to show that they are acting properly and in accordance with the WTO legal backups. For example in case where members use the general exceptions against the WTO legal texts, weather the act has been done without discrimination, un arbitrarily and unjustifiably might be ascertained by consulting the treaties made by the alleged party with other states and its content, here the treaty is an international law 15 and applied as proof of evidence in examining act of the alleged states. (c) As law in the chain of legal reasoning. In this regard I need to base myself still on the premise that WTO laws are part of public international law. Thus, as international rule adjudicators use the general source of international law in the dispute resolution proceedings, the WTO DSB may use those laws to the extent that the Members have not contracted out of it 16. Thus, the general principles of law as part of international law, customary international law and other international conventions might be used as an applicable law. Bartels takes a similar view, in that he considers that WTO Tribunals may apply various sources of international law given the absence of an express prohibition. 17 More over, in the absence of conflict rules for intra and inter WTO law variance, other general public international law rules on conflict rules will be used by the tribunal as an applicable law 18. public international laws such as CIL, general principles, international conventions and other sources of international law will be applied in WTO not only for interpretation or clarification, but to the very determination of the subject matter of the case 19. So far, The WTO laws don t contracting out most of international laws. The DSU only contains an implied restriction on the scope of the power of the DSB, which states that: in interpretation by virtue of CIL, the DSB ruling cannot add or diminish the rights and obligations within the covered agreement 20. However, how other international laws to be applied in subject matter without deviating from the covered agreements is a pragmatic question. The other competing law and the WTO laws may be overlapping. The VCLT states that treaties or customs which are developed later than WTO laws 15 in US-Shrimp, where the Appellate Body referred to an international agreement concluded by the United States (the Inter-American Convention for the Protection and Conservation of Sea Turtles) to see the intent or good faith of the US. 16 Supra R Rajesh Babu, p. 295. 17 Lorand Bartels, Applicable Law in WTO Dispute Settlement Proceedings 35 Journal of World Trade (2001) 499, 18 Joost Pauwelyn the role of public international law in the WTO how far we can go? p 560. 19 Infra 22 Joost Pauwelyn p 6. 20 art 19.2 of DSU 5

shall prevail over and hence will be regarded as applicable law for subject matter 21. Though the WTO as per art 19.2 puts restriction as a form of conflict clause, in principle (and with the notable exception of Art. 103 of the UN Charter) it is not possible, however, for a treaty to state that it will prevail over all subsequent law 22. Because, current expression of state consent can/shall not be restricted by an earlier prediction. Thus, international laws developed later can be applied in WTO proceedings in favor of WTO laws if those non WTO international rules are binding on the disputing parties. These non-wto rules then become part of the applicable law to resolve a WTO cases. And public international laws such as Jos cogens can always be served as an applicable law as they can never be excluded 23. Similarly, CIL shall not solely used for interpretation, but can also served as an applicable law for the subject matter. The stipulation of art 3.2 of DSU as CIL serves for interpretation does not mean that it cannot be an applicable law in the WTO. The language of 3.2 in this regard applies to a specific problem that had arisen under the GATT to the effect that, among other things, reliance on negotiating history was being utilized in a manner arguably inconsistent with the requirements of the rules of treaty interpretation of customary international law 24. Hence, CIL as other international laws would be served as an applicable law in the WTO proceedings. The same holds for general principles of law. In that as WTO DSB used in plenty of cases, the principles of good faith, pacta sun servanda, estoppels will be consulted in the determination of case 25. 3. The interaction between the WTO rules and other public international law before a WTO DSB In case where other international laws are to be applied in the WTO proceeding, conflicts between the WTO laws and those other international laws might be happen. The rules apply to govern for the conflict between public international laws such as WTO and other public international rules might be differing in circumstances. First, as any treaty, the multi lateral agreements of the WTO may exclude or contracting out non WTO public international law that is contradicts with WTO norms. In such cases, the WTO norms are prevailing over those 21 Art. 30 of VCLT. 22 Joost Pauwelyn the role of public international law in the WTO associate professor of law Duke University, school of law, P. 6. 23 Arts 53, 64 of VCLT 24 Lorand Bartels, Applicable Law In WTO Dispute Settlement Proceedings, p.6. 25 In US-Shrimp, where it found the Chapeau of Article XX of GATT as an expression of principle of good faith in that as general principle of international law, controls the exercise of rights by states". 6

contracting out public international laws 26. The second scenario is where the WTO norms are not contracting out other public international laws. In such cases the conflict rules of public international law will apply 27. So far, WTO says little about its relationship with other international laws. Thus, it does not include a general conflict clause setting out its relationship with pre existing international law nor does it explicitly state that it is to prevail over others or that it is without derogation from pre existing law 28. However, under art 19.2 of the DSU, the DSB in interpreting laws pursuant to CIL; it shall not add or diminish the rights and obligation under the covered agreements. Some persons consider this rule as a conflict clause. And consider that WTO agreements shall prevail over earlier as well as subsequent laws. However, in principle, it is not possible, for a treaty to state that it will prevail over all subsequent law 29. Thus, art 19.2 of the DSU is to be applied for earlier treaties. Hence, in case where pre WTO international laws are conflicting with WTO laws, art 19.2 may be considered. But, for international laws developed later than WTO laws; the conflict rules of public international law will be used. At any rate for the predictability and security of the multi lateral agreements, the settlement body needs to balance the non trade value laws and trade value norms in settlements. Concluding Remark. As WTO rules are found under the systems of international law, the existing rules of international law will be applied in the WTO. In that, other international laws will be applied as an applicable law, factual proof or a factual reference point in the WTO proceedings. Unless the WTO contracting out the applications of other laws, it is natural that the DSB can apply other public international laws on the basis of rules of international law. Finally, for the security and predictable function of the WTO, it is recommended that the WTO need to allow the applicability of other international laws not incompatible with the WTO laws. The lack of an inherent hierarchy of rules of international law makes the intention of the parties bound by the WTO laws and other international laws tricky in deciding which one ought to prevail. Thus, for security and predictability of the multi lateral agreements, the boundary and the relationship of WTO with other international laws need to be settled and framed in future. 26 art 30 of VCLT 27 The principle of lex specialis, and the later prevail over the former will be used. Art 30 and 41 of VCLT. 28 Supra 18. p. 544. 29 Supra 22. ibid. 7