Treaty Interpretation in the China Rare Earths Case: A Criticism of Textualism

Abstract

Today, as fragmentation of international law has become a reality, the Dispute Settlement Body of the WTO, being one the most essential adjudicatory bodies, has often been criticized for its overly-textualist approach to interpretation and use of the Vienna Convention on the Law of Treaties (VCLT). This commentary analyses the decision rendered by the Dispute Settlement Body in the China-Rare Earths Case. It explains how the textualist reading given by the Appellate Body could not look into the corresponding GATT regulation, while interpreting the Accession Protocol of China. It argues that this erroneous decision is a result of the DSB’s reliance on textualism through the use of Article 31 of the VCLT. It looks into the travaux preparatoires of Article 31 of the VCLT to argue that the concerns raised during the Vienna Conference are still relevant and get reflected even today in the decisionmaking in the China-Rare Earths case.