Treaty Interpretation at the World Trade Organization

Abstract

This chapter examines the ways in which the dispute settlement mechanism at the World Trade Organization (WTO) applies the customary rules of treaty interpretation of public international law. Similarly to the selection of the ECtHR, the selection of the WTO as a testing case for the uniform development of customary rules and principles of treaty interpretation allows for a through test of the conclusions drawn in respect of the ICJ’s interpretative practice. This chapter supports the argument that the WTO adjudicative bodies, generally, use patterns of reasoning which resemble those of the ICJ when applying the general rules/methods and principles of interpretation to solve treaty interpretation difficulties (e.g., insufficient clarity, ambiguity, obscurity, vagueness or silence in the language of the treaty text). Based on case law analyses, I argue that in interpreting the provisions of the WTO Agreement, the WTO adjudicative bodies (panels and the Appellate Body) have generally tended to apply holistically the customary rules of interpretation, in successive steps, equally valuing all these rules, regardless of whether they are applied explicitly or implicitly, or with an emphasis on one of the rules or another. This chapter’s analysis shows that such an approach, which I termed ‘overbuilding’, has been commonplace also for the ICJ in its practice on treaty interpretation. In addition, a consistency in the treaty interpretative approaches adopted by the GATT/WTO adjudicative bodies prior to, and after the adoption of the 1969 VCLT is evidenced. Also, the analysis here shows that a relation between the treaty interpretative practices of the WTO and ICJ exists and that the WTO dispute settlement practice appears to be highly influenced by the ICJ’s long experience on treaty interpretation and, generally, on international law. This determination provides an empirical response to the theoretical discussion related to the possible ‘self-contained’ nature of the WTO economic regime and allows for an answer to the more general question of whether the practice of application of general international law (lex generalis) by a specialised adjudicative body would contribute to, or exacerbate the fragmentation of international law.