International law and WTO legal order | The Daily Star
12:00 AM, November 15, 2016 / LAST MODIFIED: 12:00 AM, November 15, 2016

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International law and WTO legal order

The particular uniqueness of the Dispute Settlement Body (DSB) makes it rational to consider that the World Trade Organization (WTO) as a particular system has escaped itself from the range of Public International Law (PIL): (a) the DSB has obligatory authority; (b) the advice of the Panels or the Appellate Body are approximately implemented; (c) the DSB presents an appeal system. Thus, the individuality of WTO law may be capable to assert dominance over PIL. The principle of lex specialis points out that the further particular rule, triumph over the more common rule when interpreting the similar subject. Although, International Law Commission (ILC) Report of the Study Group on Fragmentation of International Law, (2002), stated that 'No particular global legal system can be fashioned outside the ambit of PIL'. 

Whereas talking about the co-relationship between the WTO and PIL, the first point is that the WTO is a branch of PIL. The WTO has a constitutional agreement, standing organs, unlock membership, recognised funds, and can function under its own name and principles, all distinctiveness of an international organisation, a creation of PIL. Hence, the WTO cannot assert itself from the ambit of PIL likewise; it can be assumed that WTO law has to be synchronised with other international law. The leading case on this is the panel report of Korea-Procurement. The panel views 'the customary rules of international law apply to the WTO treaties and the process of treaty formation under WTO.' This report implicitly suggests that the general customary international law always relevant for interpretation of the WTO law.

There are several places in the WTO covered agreements that mention plainly to other international law. TRIPS Agreement refers some intellectual property rights conventions: the Paris Convention, the Berne Convention, and The Rome Convention. Furthermore, article 2 (2) of the TRIPS refers that the TRIPS itself has to be read in such a manner that the provisions it contains do not clash with any of the Conventions stated by TRIPS. 

The WTO covered agreements repeatedly refer to the commitment to collaborate with other international organisations. The Dispute Settlement Understanding also refers to the application of other international law in dispute resolution. Article 3 (2) of the DSU requires the Dispute Settlement Body (DSB) to pursue the system of interpretation put in PIL. These indicate that some principles of international law are present in the WTO regime. As it was affirmed in the US-Gasoline case, 'the WTO covered agreements are not to be interpreted in clinical isolation of PIL'.

In the US Shrimp case, the Appellate Body established that after coming across at the plain text of a treaty, if the interpretation found is uncertain, then the Panel has to glance at the object and purpose of a treaty. Furthermore, the WTO agreement, in its article XIV, acknowledges the English, French and Spanish to be reliable languages. As a result, the issue may arise which description should be accorded preference in case of divergence in the three texts? 

Article 33 of Vienna Convention on The Law of Treaties stipulates that, in a case where a treaty has been legitimised in more than one language, the requisites of the treaty shall be supposed to have the similar meaning in each linguistic edition. Although, the outcome in the Argentina-Footwear case and the India-Quantitative Restrictions case advocates that 'Appellate Body will attempt to narrow interpretations of WTO provisions so as to evade finding conflicting obligations'. Furthermore, the Shrimp Dolphin case gives the impression that the AB is unwilling to present any view on the relationship between WTO law and other international law.

The WTO is a permanent bargaining medium among states, hence an organisation similar to the international forums beneath of the established international law. The WTO esteems PIL, although at the same time adjusting it to the certainties of international trade. In fact, PIL fills the gaps by interpreting the WTO agreement with the other international conventions. Therefore, the interaction between WTO and PIL are correlated. Similarly, the WTO norms exist on its own just as HR and IE claim their own legal distinctiveness, but certainly not outside the realm of PIL.

The writer is PhD research scholar in law at South Asian University, India. 

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