How General Should the GATT General Exceptions Be?: A Critique of the ‘Common Intention’ Approach of Treaty Interpretation

Abstract

Through an analysis of the general exception jurisprudence in China-Raw Materials, this paper offers a critique of the 'common intention' approach of treaty interpretation that asserts members' common intentions via the Vienna Convention as the customary interpretative rules. As the paper will reveal, misled by the confusion developed previously on China's trading rights commitments, the Panel and Appellate Body failed to recognize the unforeseeable nature of general exceptions. Beginning with a misinterpretation of how an accession protocol forms 'an integral part of the WTO Agreement', the common intention approach carries a clear judicial activist tendency. Moreover, this activist approach reveals an 'origin-seeking retrospective' mechanism that locates 'common intentions' statically at the founding moment of the treaty framework, causing a failure to apply the contingency measures that balance the rigidity of the regime. The approach's failure to acknowledge differences and flexibility further undermines WTO legitimacy. Its contractarian obsession with 'common intentions' as a quest for legitimate consent fails on its own terms. This paper therefore calls for extreme caution to be applied to the 'common intention' approach and its judicial activism tendency, to allow a more dynamic understanding of evolving 'common intentions' that ensures future growth of the WTO regime.