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INTERNATIONAL LAW: WTO

I.Introduction about WTO

1.History of the WTO

The birth of the World Trade Organization (WTO) marked the end of an era in which
international trade was governed by the 1947 General Agreement on Tariffs and Trade (GATT
1947). With the refusal of the United States Congress to ratify the Charter of the International
Trade Organization (Havana Charter) GATT 1947 was the only means left for the regulation of
international trade relations. It was originally conceived as a provisional multilateral agreement
for tariff reduction without any reference to a specific institutional umbrella. In spite of its many
shortcomings, GATT 1947 gradually evolved into a de facto international organization which
helped establish a strong and prosperous multilateral trading system through many rounds of
trade negotiations. Although GATT 1947 is now reduced to its original status as a multilateral
agreement, its history of decisions, procedures and customary practices still form an important
element for the interpretation and understanding of the WTO and its provisions. The World
Trade Organization is the only global international organization dealing with the rules of trade
between nations. At its heart are the WTO agreements, negotiated and signed by the bulk of the
world's trading nations and ratified in their parliaments.

2.The purpose of the WTO

The goal is to help producers of goods and services, exporters, and importers conduct their
business. The WTO is run by its member governments. All major decisions are made by the
membership as a whole, either by ministers (who usually meet at least once every two years) or
by their ambassadors or delegates (who meet regularly in Geneva).

The World Trade Organization is a central player in international trade regulation. The rights
and duties that form WTO law are not created in a vacuum, however, and there exists a complex
network of domestic, regional and international influences on the development of WTO law that
go beyond the disciplines found in the covered agreements or the interpretations given by panels
and the Appellate Body. As such, understanding the development of WTO law in a wider
institutional context is critical to comprehending WTO law in a new age of legal globalization.

II.The Application of other public international laws in WTO dispute

settlement
While WTO laws are international treaties and hence part of international law, they were not as
such regarded as they are found in that corpus. As a result, the role of other public international
law within the WTO dispute settlement is not yet clear. In that whether, the dispute settlement
body of the WTO in deciding cases would consult the rules and principles of other international
laws is not well articulated. The presentation will examine the applicability of other
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international laws in the WTO dispute settlement on the basis of the WTO frame work and
jurisprudence of international law.

1.Overview of international law and WTO

As per Art 38 of ICJ, sources of international laws are international treaties, CIL, the general
principles of law, judicial decisions and the teachings of the most highly qualified publicists of
the various nations. Since the WTO laws are multi-lateral treaties between states, they are part of
the corpus of international laws. Hence, in areas that the WTO do not address; as usually made in
other international cases, other public international laws can be used by the dispute settlement
body (DSB) of the WTO. However, mostly, we thought that WTO is an isolated from other
public international laws. The applicability or otherwise of parts of international law other than
customary international law is not clearly addressed by WTO laws. Besides, if they are to be
applied in the dispute settlement, their role in the proceeding is not clear.

Are they for mere interpretation or can be served as a proper law in the determination of subject
matter is not clear. In this presentation, the applicability of other public international laws
which are recognized by WTO laws and other not recognized will be discussed. Accordingly, the
Avenues whereby the other public international laws will be applied and their role in WTO
proceedings will be discussed. Moreover, the interaction between WTO laws and such other
public international laws will be examined. Finally, concluding and suggestion remark are
given.

2.Applicable laws recognized by the WTO legal framework

The DSU is a memorandum of understanding of rules and procedures governing the settlement
of WTO disputes. The DSU was agreed by the members as the basis for resolving trade disputes,
which were based on the WTO Uruguay Round agreements. Regulatory orientation and the legal
importance of the dispute settlement system are emphasized in the DSU.

The DSU establishes a Dispute Settlement Body (DSB) to oversee the use and functioning of the
DSU. All members of the WTO are present in this body.

Thanks to the DSU, the resolution of disagreements among members took place more and more
rapidly when the WTO was the precursor to the GATT. Paolo Vergano, expert of MUTRAP II,
said that between 1995 and the end of April this year there were 363 total complaints notified to
the WTO, of which the ongoing disputes were 28 cases, By October, disputes that have been
resolved or failed to address are 30 cases and up to 58 cases of multilateral resolution.

3 Applicability of other public internationals in Dispute settlement of WTO

“There are no special regimes in the sense of treaty regimes that are completely isolated from all
rules of general international law.”
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This opinion suggested that it is well supported by authoritative international decisions that for
general international law to become ‘applicable law’ within a specialized regime such as the
WTO, it is not necessary that such treaty should expressly provide for such eventuality.

=> WTO, as parts of international law, it gives and takes rules from the treasury.

In case where international tribunal entertain cases, if a certain international law is relevant and
fit to be applied, they can use of it. According to the Appellate Body, Article 3.2 ‘reflects a
measure of recognition that the [GATT 1994] is not to be read in clinical isolation from public
international law. Thus, by the mere fact that WTO is found under the system of international
laws, other international laws will apply in WTO dispute settlements in so far as they are not add
or diminish the rights and obligations stated under the covered agreement.

Unlike the case of the UN convention on the law of the sea, the WTO does not provide the
potential applicability of other public international laws in disputes in a clear and sufficient
manner. At a glance the DSU seems base itself on provisions of the covered agreements. Hence,
as one general principle of international law principle of good faith seems recognized as a
procedural role of value in the proceedings. Thus, as parts of other public international law CIL
and principle of good faith (as a general principle of law) can be applied in the dispute
settlement. The applicability of other international law such as international conventions,
general principles and other subsidiary laws within the WTO subject matter dealings are not
clearly put under the WTO laws.

4.So can other international laws which are not recognized by the WTO laws be applied by
the DSB?

The explicit recognition of CIL under the DSU does not mean that other public international
laws are excluded from the ambit of the WTO system. Confirming some rules of general
international law does not amount to excluding all others.

Rather, the absence of an explicit exclusion must be regarded as a continuation or implicit

acceptance of the rules in Question.

=> Other parts of public international law such as general principles of law, and international
judicial decisions will be applied in the dispute settlement.

As said the WTO laws are part of international law, and hence, the system of general public
international laws will be applied in the settlement of cases in the WTO.

Avenues by which other international laws will apply:

 As an Aid to interpretation. The DSB in interpreting the covered agreements usually used
customary international laws. it is Article 31 of VCLT which is recognized as
representing the customary rules of interpretation of public international law, play a
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significant role in clarifying the provisions of the covered agreements, and thereby
contributing towards enhancing ‘security and predictability’ of the multilateral legal
system. The Panel and the appellate body explicitly recognize the VCLT in providing
‘customary rules of interpretation of public international law’ Pursuant to DSU Article
3.2. Therefore, even though not all WTO Members are party to the VCLT, to the extent
that these provisions reflect customary international law, they are binding on all WTO
Members.
 Evidence of Compliance with Obligations. Other non WTO public international laws may
be served as or consulted by the DSB as a proof of state parties to show that they are
acting properly and in accordance with the WTO legal backups. For example, in case
where members use the general exceptions against the WTO legal texts, weather the act
has been done without discrimination, un arbitrarily and unjustifiably might be
ascertained by consulting the treaties made by the alleged party with other states and its
content, here the treaty is an international law and applied as proof of evidence in
examining act of the alleged states.
 As law in the chain of legal reasoning.

5. The interaction between the WTO rules and other public international law before a
WTO DSB

In case where other international laws are to be applied in the WTO proceeding, conflicts
between the WTO laws and those other international laws might be happen. The rules apply to
govern for the conflict between public international laws such as WTO and other public
international rules might be differing in circumstances.

First, as any treaty, the multi-lateral agreements of the WTO may exclude or contracting out non-
WTO public international law that is contradicts with WTO norms. In such cases, the WTO
norms are prevailing over those contracting out public international laws.

The second scenario is where the WTO norms are not contracting out other public international
laws. In such cases the conflict rules of public international law will apply.

So far, WTO says little about its relationship with other international laws. Thus, it does not
include a general conflict clause setting out its relationship with preexisting international law
nor does it explicitly state that it is to prevail over others or that it is without derogation from
preexisting law. However, under art 19.2 of the DSU, the DSB in interpreting laws pursuant to
CIL; it shall not add or diminish the rights and obligation under the covered agreements. Some
persons consider this rule as a conflict clause. And consider that WTO agreements shall prevail
over earlier as well as subsequent laws. However, in principle, it is not possible, for a treaty to
state that it will prevail over all subsequent law. Thus, art 19.2 of the DSU is to be applied for
earlier treaties. Hence, in case where pre-WTO international laws are conflicting with WTO
laws, art 19.2 may be considered. But, for international laws developed later than WTO laws;
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the conflict rules of public international law will be used. At any rate for the predictability and
security of the multi-lateral agreements, the settlement body needs to balance the non-trade
value laws and trade value norms in settlements.

Concluding Remark
As WTO rules are found under the systems of international law, the existing rules of
international law will be applied in the WTO. In that, other international laws will be applied as
an applicable law, factual proof or a factual reference point in the WTO proceedings. Unless the
WTO contracting out the applications of other laws, it is natural that the DSB can apply other
public international laws on the basis of rules of international law. Finally, for the security and
predictable function of the WTO, it is recommended that the WTO need to allow the
applicability of other international laws not incompatible with the WTO laws. The lack of an
inherent hierarchy of rules of international law makes the intention of the parties bound by the
WTO laws and other international laws tricky in deciding which one ought to prevail. Thus, for
security and predictability of the multi-lateral agreements, the boundary and the relationship of
WTO with other international laws need to be settled and framed in future.