Question 2
Article 3.2 of the Understanding on Rules and Procedures Governing the Settlement of Disputes( DSU) provides in part that "The Members recognise that it serves to preserve the right and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance wit customary rules of interpretation of public international law." ( Emphasis added)
1. What does the phrase "customary rules of interpretation of public international law" refer to? (10%)
Example answer:
While customary international law is usually unwritten, the VCLT has codified, in Articles 31, 32, and 33 some of these customary rules of interpretation. Although Article 3.2 of the DSU does not directly refer to such provisions, relevant WTO jurisprudence has has recognised the status of the VCLT as"customary or general international law."
For example, the Appellate Body report in the case US-Gasoline has stated that: The general rule of interpretation as set out in VCLT Article 31 has attained the general or customary international law. As such, it forms part of the 'customary rules of interpretation of public international law' which the Appellate Body has been directed to by Article 3.2 of the DSU, to apply in seeking to clarify the provisions of the General Agreement and the other covered agreements of the WTO. Thus this direction reflects measure of recognition that he General Agreement is not to be read in direct isolation from public international law.
Furthermore, according to the Appellate Body Report in the case Japan-Alcoholic Beverages, the fundamental rule of treat interpretation set out in VCLT Article 31 has attained the status of general or customary international law. There can be no doubt that Article 32 of the VCLT that deals with the rule of supplementary means of interpretation has also attained the same status.
2. What are these interpretation rules? (20%)
Example answer:
Article 31 of the VCLT sets out the general rules of interpretation as follows:1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) Any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;
(b) Any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) Any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.
3. Based on these interpretation rules, do you think that a panel or the Appellate Body can "apply" or "rely on" an international agreement (such as an international agreement or the Framework Convention on Tobacco Control) to "interpret these WTO provisions? If yes, can you provide examples? (20%)
Example answer:
The panel in the case EC-Biotech has stated that Article 31.3(c) mandates a treaty interpreter to take into account other rules of international law. They also stated that this reference seems sufficiently broad to encompass all the general accepted sources of public international law, that is to say: (i) international conventions, (ii)customary international law, and (iii) recognised principles of international law.
However, the panel in the case US-Shrimp has also added so limitations to this broad interpretation of international rules. Pursuant to this report, there is an important limitation, namely that only these rules of international law 'applicable in the relations between the parties' are to be taken into account. It held 'the parties' to mean those states that have consented to be bound by the treaty being interpreted (ie. all WTO Members). According to the panel, a treaty interpreter is not required to have regard to treaties signed only by some WTO Members as context under Article 31.3(c) of the VCLT, but would have discretion to use some treaties as informative tools in establishing the ordinary meaning of the words used.
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