Holistic Approach of Treaty Interpretation: A Critique on China-Rare Earths

Abstract

The holistic approach of treaty interpretation is an emerging manner in the last decade to apply international customary law of treaty interpretation in WTO practices of dispute settlement, in particular, the cases related to China. Currently, it is uncertain to apply this manner in WTO dispute settlement due to lack of expressed treaty provisions, which have drawn highly attentions of WTO Members and even resulted in controversies inside the Panel of China-Rare Earths. The analysis of this thesis demonstrates that the holistic approach involves in the customary rules of treaty interpretation. The separate opinion of one panelist in China-Rare Earths provides an example to apply the holistic approach, even though the Appellate Body gave no further explanation of this approach. China-Rare Earths indicates that the basic practices of dispute settlement since the establishment of the WTO remain unchanged, but, facing the new problems and challenges, the practitioners and the academies of the WTO Dispute Settlement must conduct more researches on holistic approach in order to develop the legal theory of treaty interpretation. It would be also benefited from relevant researches to improve Chinese capacity for responding to the WTO dispute settlement and other international dispute settlements by peaceful means.