The Use and Abuse of International Law in WTO Trade/Environment Litigation

The Use and Abuse of International Law in WTO Trade/Environment Litigation

Description

Among the central challenges to the international legal order today is that which is typically referred to as “fragmentation”—the co-existence of multiple regimes and fora, whose legal subjects and objects partly converge and often diverge, where fora and norms can overlap and possibly collide in a single dispute. Although there are some rules to deal with conflict of treaties and some principles of hierarchy (the status of ius cogens being the most obvious example) the positive features of international law as a system of rules are very indeterminate in addressing fragmentation. In fact, fragmentation may reflect a tendency of “juridification” of transnational social relations and interests of all kinds, extending far beyond the kind of core State interests reflected in traditional international law and especially in the UN Charter. This chapter is concerned with one particular dimension of fragmentation of norms—its challenges for interpretation. What kind of role should norms drawn from other international instruments and regimes have in the interpretation of a treaty where the dispute in question implicates interests and constituencies represented in both regimes? One of the most contentious and complex expressions of fragmentation has been the trade and environment debate, including the relationship of WTO law to international environmental law. There is a considerable literature that looks at this problem from the perspective of the application of non-WTO rules as autonomous sources of law in WTO dispute settlement and the possible conflict of norms. This is an issue that has often been confused with the use of non-WTO international law to help solve various challenges of interpreting WTO rules in the trade/environment context. This chapter is concerned with the latter, and is intended to explore the diverse ways in which the Appellate Body has used international law for the interpretation of WTO rules in trade/ environment disputes and the broader systemic implications of its practice for the legitimacy of the WTO, the normative effects of international environmental law, and the role of interpretation in the way in which the challenge of fragmentation is conceptualized and addressed. The positive law governing treaty interpretation, as codified in Article 31(3) of the Vienna Convention, provides a number of ways for other international legal norms to be taken into account in the interpretation of a treaty as part of its “context.” Such norms can include: “(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.” For purposes of the “fragmentation” discussion, it is Article 31(3)(c) that is of most interest since (a) and (b) refer to norms internal to the regime of which the treaty being interpreted is part, whereas (c) is clearly much broader. What is striking is that the WTO Appellate Body developed its practice of using non-WTO international legal norms in treaty interpretation in trade/ environment disputes without invoking Article 31(3)(c) of the Vienna Convention. This chapter will attempt to show that the Appellate Body's use of international law in these cases depended on broader systemic and methodological considerations in treaty interpretation, including considerations related to legitimacy, of which Article 31(3)(c) is but a partial and limited reflection. More recently, the ruling of the panel in the WTO EC—Approval and Marketing of Biotech Products dispute has placed a new focus on Article 31(3)(c). The panel used Article 31(3)(c) to limit or constrain the kind of broad-based use of non-WTO law exhibited by the Appellate Body. In particular, the panel interpreted “applicable in the relations between the parties” in Article 31(3)(c) to mean that Article 31(3)(c) has the effect of preventing a treaty interpreter from using as “context” of the treaty any international legal norm that is not binding on all the parties of the treaty being interpreted. In the case of a multilateral agreement with a very large membership, such as the WTO, the effect of the panel's approach would be to reduce considerably the universe of legal norms that could be used as context to interpret a treaty. The final section of this chapter will consider both the broad approach of the Appellate Body and the narrow approach of the EC—Approval and Marketing of Biotech Products panel, in the light of the extensive treatment of Article 31(3)(c) in recent jurisprudence of the ICJ (the Oil Platforms case) and also in the Report of the ILC Study Group, “Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law.”

Source Publication

The WTO: Governance, Dispute Settlement and Developing Countries

Source Editors/Authors

Merit E. Janow, Victoria Donaldson, Alan Yanovich

Publication Date

2008

The Use and Abuse of International Law in WTO Trade/Environment Litigation

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