‘THE ROLE OF PUBLIC INTERNATIONAL LAW IN THE WTO: HOW FAR CAN WE GO? By Jost Peeweyn" How does the World Trade Organization (WTO) relate to the wider corpus of public fnternational law? What, in turn, is the role of public international law in WTO dispute settlement? This paper aims at resolving these tvo difficult questions. No straightforward answers to them can be found in WTO rules Yet answering them has major ramifications both for the WTO (is the WTO a largely “selfcontained regime” or is it not) and for international law (isthe future of international law further fragmentation or increased unig?) Tis exercise will be conducted under the law ait stands today—that is, the law as it may be invoked at present before the WTO "Judiciary" (panels and the Appellate Bod). Of course, WTO members (viz, the WTO “legislator") could clarify or change the relationship between WTO rules and other rules of international law However, iis un- likely that such changes will occur any time soon. In part I, I examine the general rela tionship berween publicinternationa law and WTO la. then assess, more specifically, the role of public international law in WTO dispute setlement in part If and offer some con- clusions in pare I 1 THE WTO ASA PART OF PUBLIC INTERNATIONAL LAW ‘The Creation and Interplay of Rules in Public International Law Internationallaw, unlike domesticlegal sjstems,is“decentraized”inthatithasno central legislator creating its rules. The creators of international law are at the same time the main subject of international law, namely states. States as subjects of international law, unlike individuals in domestic law, do not elect an “international legislator," which is then man- dated to make avon their behalE* Moreover, statesas creator of law are complete equals. “Univsiy of Neueit, Suizend: o lee fom he IO Seri, Lap Ais, Dion jcstpatvedsevancig, Lan extremely gracefl to Petros Maroide, Gabrielle Marces, Peter Jan Kaper, Jo ‘Rehan ant ais Marae Gece abl, Alan By an bok anon orang thet at and oramcat whe on tistope Te option copenedar oc peroeal Alen cea, tala ine "The nodon “WTO rales” is wed here wo denominat al ules of a create in the content ofthe WTO, not Just those inthe socalled WTO covered syreement Inted in Appendic 1 to the Understanding on Reles and ‘Focedares Goversing the Settement af Buputes hereinafter B30), Marrakesh Agreement Exablshing the ‘World Trade Organzsion, Apr, 195, THE Results or iis URUCUAT Roun OF MUuLaTenAt THaDE NEGO Suions iar on. Teas 6 (1905) (hereinafter Lacay TEXTS, prin in 33 (EA 1144 994) (herein WTO Agreement). For the DSU, Apr 1, 199, see WTO Agreement, Annex 2 LEGAL TEXTS supra, a 103, ‘ited in 8 EM at 1226, Sao ff ne 37 Sete Jan Ket Th Law of GATT Si ilo nonatnl Law, 1994 EDLY ILL 27 ‘uno Sims Sif Cota Rages 1089 New YB. PLL iL. SeJonathan L. Charney, I ferstonl Law Tietened ty Multiple eration! Tel 271 Ree Des cours READ: 101 (1088):Cilber Guilaume, These tmational tel ations ATL COMP. 0648 (1908); Benedie Kingsbury, Frere of naraconal Curt ond Prana 0 Stee Prot 94 NiO} ere fon. 099 (000); obese Jenngs, The Peljraton of dud Dots anges {tnd Pore Ans, 9 AIL BULL.NO. 9, 1008, 202 "They could do so, for example, by providing authortave interpretations of WTO rules by granting certain seahers or byamending WHO cs (apes under Anices BCS BE, oro he WHO Agrees. To dat, limited exception international organizations, wor a chey themsches (not thelr member) create res of iterators tw (the socalled cso interoonal rgaizadons). 05536 "TRIE AMERICAN JOURNAL OF INTERNATIONAL LAW (vol. 95:595, ‘The law created by state A and state Bhas the same legal value as that created by state Cand state D. International law is law of cooperation, not subordination. Its creation depends essentially on the consent of states, be it explicit or only implicit. The lack of consent by a sven state generally means that it cannot be held to the rule in question (facta teis nec rocent nec prosunt).” Asa result, since each state is largely its own lawmaker, the legal rela- tionship between states varies enormously depending on the states concerned (much more than the relationship between individuals under domestic law where legislation and other generally applicable law largely outweigh private contracts). ‘Although international law does not have a central legislator—and is essentially acompi lation of varying bilateral legal relationships (even if these relationships are increasingly effected by multilateral treaties)—international law doesinclude an element with features ‘ofinternational legislation, namely general international law, composed of general custom- ary international law and general principles of law. The rules of general international law, in principle, are binding on all states. Each new state, as well as each new treaty, is auto- ‘matically born into it. General international law il the gaps left by treaties. More important, being composed largely of rules on the law of treaties, state responsibility, the interplay of norms, and the settlement of disputes, general international law ensures the existence of international law as a legal system. General intemnational law is not limited, however, to these “secondary” rules of law, as they might be called (or a “toolbox” for the creation, ‘operation, interplay, and enforcement of other rales oflaw). Italsoinchudes “primary” rules of law directly imposing rights and obligations on states (which “secondary” rules impose only indirectly through other rules of aw), such as customary law and general principles of law on the use of force, genocide, and human rights Looked at from this angle, general international law does resemble domestic legislation (or even domestic constitutions).? In contrast, however, to much domestic legislation (and all domestic constitutions), gen- cral international law does nat have an inherent legal value that is superior to other rules flaw (subfederal la, administrative regulations, and contracts in domestic law; treaties in international law).° On the contrary, general customary international law and general prin- ciples oflaw are often characterized as vague, whereas treaties are much more explicit. The Jack of any inherent hierarchy between general international law and treaties—as well as, more generally, between any tworules ofinternational law—is explained on the ground that both derive, in one way or another, from the will or acquiescence of states. As they derive from the same source (essentially state consent), they must in principle be equal in value. & Chatles Rowson, De ls Compatbie ds norms jiu cotadnies dans Yrs interationa, 29 REVUE (céngae Ds Daorr DERMATIONAL PUBLIC 155, 60-81 (1088) (Le droltdes gens stun dete de coordination con desbordnaion- accord des suet de roy esta seule souree de doicetles ores gut esltent de fetaccord de volonts sont degale valeur jrtaique. * Se eg, Vienna Convention on de La of Treaties, anf signature May 29, 1968, Arts, 4-98, 1185 UNTS {381 (dealing wth weates and thir pares) [heretnafir Vienna Convention). * Hae gave prominence to the disincdon beoveen primary and secondary rales “secondary areall concerned withthe primary rules themsetex They apes the ways in which the primary rules maybe conchaely ‘ertined, introduced eliminated arted, ad the acto ther olation conclusively determined.“ L- AHA, ‘TheConcerr or Law 92 (1961) The scope ofthe secondary” rules referred to here (welt in Flr’ book) ‘ig much wider than the notion of secondary” rales wed by the International Lae Commission ILC) ints 416, 16-17 (od) Grating that WO ules are simply no binding in the traona sense). * Joos ately, Exfrment nd Counters the WTO: Rae re Rue—Teward Me aleve preach, 94 e385, 358 (800), * sfariano Gara Rubio, Unilaeal Measures asa ean(sl of nforcementof WTO Recommendaionsand Decionsn 3 (Hague Acad of Interaaioal Lav, forthcoming 2001) (cling feat to cmage any ‘ther posible sats for rales cianatng Roma wey concluded among Satesinderinteradonal asthe WTO Agreement 2 -WTO tray sed hereto denominatethe Final ActEmbodying the Rel of the Uruguay Round of Mel tater Trade Negation Apr 1, 1904 0M TEXT, uate a2, rid S ILM a 1125 (1884 hich Ides noconiythe WTO Agreement wh four snnexes basins series of miniaral docarabonsand decison) * Compare foresanple, he WTO teatyto the LOS Convention, syprenote25,anequaly broad anduniveral sxe ttl elton other aks eradona in Are 1 oe ‘bing notes than sx paragraph).2001) ‘THE ROLE OF PUBLIC INTERNATIONAL LAW IN THE WTO. 539 ‘Stating that WTO rules are just a part of public international law i one thing. Itis quite another to submit that there is nothing special about WTO rules. In many respects WIO rales are ley spcialis as opposed to general international law. But contracting out of some rules f general international law (for example, as does the WTO dispute settlement mecha nism visavis certain rules of general international law on state responsibility) does not ‘mean thatone has contracted out of allof them, nora fortiori that WTO rules were created completely outside the system of international law. Much has been written about so-called, self-contained regimes.” However, all references to this notion concerned certain inter- national legal regimes (in particular, those of diplomatic immunities, the European Com- ‘munity,and human rights treaties) that, in terms of their compliance mechanism or second- aryrules, may somehowbe selEcontained, without any or only limited “fallback’ on general {international lav. No one has spoken of self-contained regimes in the sense of treaty re- gimes thatare completely isolated from all rules of general international law (including the Jaw on treaties, judicial proceedings, and matters such asthe use of force and human rights), let alone treaty regimes concluded completely outside the international legal sytem." AS noted above, states, in their treaty relations, can contract out of one, more, or, in theory, all rules of general international law (other than those of jus cagens), but they cannot con- tract out of the system of international law. Assoon as states contract ith one another, they do so automatically and necessarily within the system of international law. ‘WTO rulesare thus rules of international law that, in certain respects, constitute lex spec alisvisvis certain rules of general international lav. However, this does not mean that WTO rules are lex specials visi all rules of international law. WTO rules regulate the trade relations between states (as well as separate customs territories"). Nonetheless, in today's highly interdependent world, a great number, ifnot most, state regulations in one way or another affeet trade flows between states. Hence, WTO rules, essentially aimed at liberal- i trade, have a potential impact on almost all other segments of society and law. For ‘example, liberalizing trade may sometimes jeopardize respect for the environment or hu ‘man rights. Equally, enforcing respect for human rights or environmental standards may sometimes require the imposition of tade barriers. Moreover, trade restrictionsare resorted to increasingly in pursuitofall kinds ofnontradle objectives, ranging from respect for human rights" and the environment" to confirmation, See the discsions by Ruljper and Simma, supra note 2, and the report on sat responsbiy by Riphogen, ‘Arangio Bun, and Cranford (0 the 1.6 (108i) $8.8 Incl L- Com pat 7, UN Doc. A/CNA/SEIEAy 1981/Aa.1 (Pare) {1089 2d. pe 1, at 29, UN Doe A/CAA/SERA/ O62/Adat (Part) [1083] 2 pe, a8, UND, A/CNA/SER.A/ 1965 (Put): (1985) 2 p13, UN Doc A/CN4/SERLA/ 1985/44 (Gaze; [0012p 1.at 1, UN Doc. A/CNA/SERA/1901/add 1 Par) 1082) 8, pr a1, UN Doc AVCN4/SERA/1004/Ada.1 (Part); Tied Reporton Sate Responsibly, UN Doc. A/CNCA/80?/d I, pars 17, Ada, para. 415 (2000 [hereinafter Crore, Third Report ®'Eventhehighl developed (andazguably“domesc’legalsptem of te European Communityattincs refers tack togenral ava law Peterfan Kale, Th Cort de Tanto be Boge he Vea Gon ‘nthe Lt of Tra 1960, 95 Ceca lets EUR etzoRATIONT (1968) Also, for praca pepotes wore ‘eaycouldnotponiiy bese poutside the ptem of mernaonal lw, completelydclnked. for example fom the lw af weates and general pnp of ow * SeWTO Agreement Ar-XILL and Explanatory Notes (defining the tr “ott Hereinafter wen the ‘word sate"iwed Inthe context ofthe WIO tea, hshowld be reads ncuding separate customs eorie * eg, United Sates—Meaures AMecting Government Procurement. WTO Doc WI/DS88 805 (Feb. 1, 2000) (inviving US. rade santons against Myanmar; United Sates—The Cuan Libery and Democrae Solidarity Act WTO Doc. WI/DSO8 (Ape 24,108) (valing US. rade sanctions gait Cbs) Reports of ‘WTO panels and the Appelt Body ar arable online st chtp//wmnenoong> Se United StatestmportProkibiion of Certain Shrimp and Shrimp Produce, WLO Docs WT/DSS8/R (Quy 1998) (pane), &¥T/058/B/R (or. 6, 1008) (Appelte Bog) (herenaher US.~Shrimp/Torde) {ote tat Appelat Boay report are designated by "AB" iste report mamber) Chile—Neassres Aecng ‘Transitand lmponaon f Swordfish, WTO Doc W/DSI93 (suspended Mat. 28, 2001) [hereinaher Chile ‘Swords. The lar complaint yas slg brought before the Inetnadonal Tribunal or the Law of te Sea but Suspended onthe bas of pronional rangement. Conseraion and Sustainable Exploaion of Swords ‘Stocks nthe South-Eastern Pace Goran (Chev Ear. Com) (Mat 15,2001), atch /wnunong/ Dept” Joa/ITL.08/Order2001Eng pdb,540 "THE AMERICAN JOURNAL OF INTERNATIONAL LAW vol. 95:595 of territorial borders." Such resort creates a huge potential for interaction between WTO rules and other rules ofnternational law, as WTO rules cut across almost all other roles of international law. Italso means cha in certain respects these “alhafecting” WTO rules are framework rules only or lex gmerais. Indeed, the WTO forms a general and increasingly universal framework forall (or almostall) ofthe trade relations between states. Although GATT/WTO rules replaced a myriad of other bilateral and regional arrangements, they do allow for certain mote detailed or furtherreaching regional and bilateral arrangements;* as wel as a series of exceptions related to the environment and national security, among other things. In these respects, WTO trade liberalization rles are general or le generals permitting the continuation or creation of more focused or detailed rules of international Jaw (euch as certain rules on the environment, human rights, or the law ofthe sea, aswell ason customs unions and free trade areas). In this sense, WTO rules are not the alpha and ‘omega ofall possible rade relations between states. Other, more detailed or special rules of international law (in terms of either subject matter or the number of states bound by them) continue to be highly relevant. ‘The Relationship Between WTO Rules and Other Rules of Intemational Law With the preceding two sectionsin mind, we can now portray the universe ofinternational law relevant to the WTO as consisting of the following: (1) WTO rules" that add previously nonexistent rights or obligations to the corpus of international lav (such as nondiscrimination principles in trade in services); (2) WTO rules that contract ont of general international law (such asrulesin the Dis- pute Settlement Understanding on the “suspension of concessions,” which contract out ‘6 general international aw rules on countermeasures) or deviate from, or even replace, other preexisting rule of international law (such as bilateral quot or tariff arrangements and the Tokyo Round codes); (8) WTO rules that confirm preexisting rules of international law, be they of general international law (such as DSU Article 8.2 confirming that WTO covered agreements are to be interpreted “in accordance with customary rules of interpretation of public international law") or preexisting treaty law (such as GATT 1994 incorporating GATT 1947 and the TRIPS Agreement incorporating parts of certain WIPO conventions”); (4) non-WTO rules that already existed when the WTO treaty was concluded (on April 15, 1994) and thatare (a) relevant to and may have an impact on WTO rules; and (b) have not been contracted out of, deviated from, or replaced by the WTO treaty. ‘These non-WTO rules consist mainly of general international law, in particular rules on, the law of treaties, state responsibility, and settlement of disputes, but also of other ‘weaty rules that regulate or have an impact on the trade relations between states (such * Se Nicargus Measures Asfecting Imports fom Honduras and Colombia, WTO Doc. WT/DSIE8 & 201, (ay 3, 2000) avoling tre sanctone a arent of a maritime delimitton dispute). This dspute i also ending before the lnternaional Court of Juice, Martie Delmition Between Nicaragua and Honduras ia [fe Gaibean Sea (Niet Hond) (ed Dee. 1999) a chap anneiche. org Sein text at te 02. "WTO rule, ae defined in note I spr, nchdes the 1994 WTO weary as wellasll subsequent WTO rules, not ua tou in subeequent agreements between WO members bul thse constituted by acs of the WTO ‘Stmimernaonal ongaiation chan nivrmand decision he DpateStlement Body Derinaler DSB), ‘Gnintel set of WTO members, an, potently, customary nwepedtc to WIO members and dhe WTO weal. Se European Communides—Meanires Affecing Imporation of Cera Pouluy Products, WTO Doc. ‘WT/DSH0/AB/R para 8 (July 23,1988) hereinafter EO—Pouley) General Agrement on Tariff and Trade, Ap. 15, 1904, WTO Agreement, Annex 1A, LEOALTESTS, sya ‘ote I, at 3, printed 8 ILM 1154 (1995) (hereinafter GAT 1994); Agreement on TradeRelted Agpects of ici opr ih p15 1204 Ane Lz sm pe pei IOV CD)2001) ‘THE ROLE OF PUBLIC INTERNATIONAL LAW IN THE WTO. Bal as certain rules in environmental or human rights conventions and customs unions or free trade arrangements); and (6) non-WTO rules that are created subsequently to the WTO treaty (post~April 198) and (a) are relevant to and may have an impact on WTO rules; (b) either add to or confirm existing WTO rules or contract out of, deviate from, or replace aspects of existing WTO rules; and (c) ifthe later isthe case, do so in a manner consistent with interplay and conflict rules in the WTO treaty and general international law. Confirming some rates of general international las does not amount to excluding all thers. A trap to beavoided with respect tothe third category of rules outlined above (butone often fallen {nto by authors and WTO negotiators alike®) isto take the explicit confirmation of some preexisting rules of international lawin the WTO treaty (such as DSU Article 3.2 confirming customary international law rules on interpretation) as proof thatthe treaty has contracted, out ofall other rules of international law (pursuant to the adage expresso unius et exlusio altrus). As already noted, rather than explicitly confirm (or make a renvoi to) preexisting rules of general international law for those rules to apply to it, the WTO treaty had to ex- clude those rules that were not to apply. Asa result, any explicit confirmation of rules of general international law in the WTO treaty must be seen as made ex abundant cautla * The absence of explicit contracting out must be regarded as a continuation or implicit acceptance of the rulesin question. Asone earlysource putit:“Every international conven- tion must be deemed tacitly to refer to general principles of international law for all ques- tions which it does not itself resolve in express terms and in a different way." Both the Permanent Court of International Justice (PCI) and the International Courtof [Justice (IG) later confirmed this line of thinking. Inthe Chorséw Factor case, the PCI] con- firmed it in respect of the obligation to make reparation fora breach of international law: “Reparation is the indispensable complement ofa failure to apply a convention, and there isno necessity for this tobe stated in the convention itselé” Iti, indeed, “a general concep- tion of law, that any breach of an engagement involves an obligation to make reparation." ‘The IGJ has made similar statements with respect to rules on treaty termination for breach, and exhaustion of local remedies. In the 1971 South Wist Africa Advisory Opinion, the IC] confirmed the right of termination of a treaty for breach (in easu, the mandate for South, ‘West Aftica) and found that, for this right not to be applicable to the mandate, itwould be necessary to show that the mandates system... excluded the application of the general principle of law thata right of termination on account of breach must be presumed to existin respect ofall treaties... . The silence off treaty as to the existence © Setest at note 90 inf « Se Joe! Trachtman, The Doman of WTO Dispute Rauon £0 HARV.INVLLJ.888, 842-48 (109);fanote 75. “© This point applies only in rexpec of grt international In. Indeed to the extent that dhe WTO testy confirmed and incorporates preexsung ueaty rules uch s rales of certain WIPO convenons, WTO members ‘otonly confirmed tet legal commlumentto these rues ithtome members agrecing to thereralesforthe fit time), butalbo extended that commitment by subjecting these rules tothe auterate and compulsory dlspute seulement stem of the WTO. Se text at note 128 if © decrd Gara Rubio, sure note 27. Georges Pinson (Fr) v. United Mexican Stats, 5 RLAA. 27, 428 (Perm. Ce Arb 198) (trans. by author). Oras MeN stated “Treaties must be applied and interpreted against the background ofthe general principles ‘ofinternatonal law.” A.D. MCNAIR, THELAWOF TREATIES £00 (1061). According Herc Lauterpach ative Tureaton ante Principle of Efevena i the Irretaton of Prete 1949 BRET-Y.B. INTL 8, 76 ithe treatyasa whole which slaw, The treayasa whole anscendsany ofits indvidual protons or even {he sum oi af proions For the ay, dae sed and ated sere han the exprenion of he Inendon of the partes Tt pat of international lw and must be interpreted aginst the general background oft Yulee and peincp. © Ghorasw Factory (Get. Pl), Mess, 198 PC] (sr. A) No.17, t 29 (Sept. 18)5a “THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol 95:595 of such a right eannot be interpreted as implying the exclusion of aright which has its source outside of the treaty, in general international lave... In the ELSTcase, the acting Chamber of the IGJ had no doubt that the parties to a treaty can therein either agree that the local remedies rule shall not apply to claims based on alleged breaches ofthat treaty; or confirm that itshall apply. Yet the Chamber finds itself unable to accept that an important principle of eustomay international law should beheld to have been tacitly dispensed within the absence of any words making clear an intention to do so." ‘The Iran-U, Claims Tribunal has also confirmed this approach.” Tn international law, there is thus a presumption in favor of continuity or against conflict, in the sense that ifa treaty does not contract out ofa preexisting rule, that rule (being of the same inherentvalue a the new one") continaes to exist Only fit can be shown that the new treaty does contradict or aim at contracting out ofa rule of general international law will the preexisting rule be disapplied with respect to the treaty in question. The extent to which such contracting out has occurred is question of treaty interpretation.” ‘The most prominent WTO rule explicitly confirming rules of general international law, DSU Article 3.2, supports the main thesis of thisartcle. Article 8.2 provides in relevant part that WTO covered agreements must be clarified “in accordance with customary rules of interpretation of public international law.” Firs, asthe Appellate Body acknowledged in its very first report, *[Jhat direction [in Article 3.2 of the DSU] reflects a measure of recog- nition that the General Agreement [GATT] is not to be read in clinical isolation from public international law." Although, in theory, there was no need for Article 3.2 to confirm cus- tomary rules of interpretation of public international law (these rules would have applied anyhow) in practice, to many WTO negotiators it was a revelation. And, indeed, o those maintaining dhat WTO rules are not rules of international law, itamounts toa death blow. For if WTO rules must be interpreted in accordance with rules of public international law, then surely they must berules of public international law. Second, the international law rules thus explicitly confirmed (defined in case law as being Articles 31-38 of the Vienna Con- vention*) in tur support the thesis advanced here, albeit onlyin the specific field of treaty interpretation. Article $1(8)(c) of the Vienna Convention directs that in interpreting a Lega Consequences for Sates the Connie Presence of South fea in Namibia (South West tice) Not sithsahdng Seruty Counc Resohson £70 (1970), Aveo Opinion, 107 1c) Rr. 16,47, para. 96 June 21- ‘© Hletroniea Sila SpA CELSD) (US. Ha), 1080 TC] Ra. 1,42, para. 0 Cul 2) “ Amoco int Fn, Corp ra, 15 lan. Cl. Tei. Rep. 18, para 112 (0987) ‘Asa lr pcs the relaonsbesween the wo counses, the Treaty supersede the lx gnarl name ‘ctomatyintronsond we [Jouener,- theres eaxtomry av may beac order fii [onto anna of te law ofthe Treaty to ascertan the meaning of ndefined terms i txt of, more [ener toad imerpreaon sid implementation oft pronsios- © Bxcept for rule of jeg * Opherhin'sIntematlnalL-areferston“premption that the paresintend something notinconsistent vith ageneraly secognised principles of international lv, or with previous reat obligadons toward thicd sates” 1 ‘Senet eresslriond Law 1278 (Rober Jennings & Arthur Wats ds 169) (hereinafter OrPEED} (feferngto IC] deciions) Ar regard the ight to reparston, Crevford refers toa presumplon against the re- ‘Sonat ube slscontained reginesiadhefield of reparation Gravfor, Third Reporcypranote 0 para 187. "Crawford submis, fr example, tat interme of sate esporabliy, due DSU isan example whereits"cear from te language of tweatyor other ext that onl the consequences specied flow” Crawford, Thea Report, ‘remote 90,4, pars 2, lain ew, thisisnotso cen AteardNariano Garea Rubio, sypranote 27, Peres Greta Remain te WO Legal Sten: Baten Fak and Hard Pans 1 EUR] DVL 763 (2000. ' United States Standards for Reformulated and Conventional Gasoline, WEO Doc. WT/DS2/AB/R at 17 (iar. 20, 1096) (hereinafter US—Casaine). "To my knowledge, the WTO treats the on intrnalonal legal instrument that explicly confirms inter. national la rales of mterpreation. Fors plusble reason, sca ij note 0 *'U.S-—Guolne, spre note 2, 217, Japan—Taxes on Alcohol Beverages, WTO Doc. WT/DS8/AB/R, at 10 @ior 1, 199) [hereinafter pan—Tases).