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The law of GATT as a special field of international law*: Ignorance, further refinement or self-contained system of international law?

Published online by Cambridge University Press:  07 July 2009

P. J. Kuyper
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Extract

This article has the limited ambition of analyzing some special features of the law of the General Agreement on Tariffs and Trade (GATT) and its successor organization, the World Trade Organization (WTO), in the framework of general international law. The GATT, as is the case with all those international organizations which have their own substantive law and are not merely vehicles for international negotiation and co-ordination, inevitably is a special branch of international law. As with all such branches it develops rules which deviate from general international law and which further refine and adapt the rules and principles of international law. In respect of GATT, as in some other exceptional cases (EC), there is even reason to ask the question whether it has or has not become a self-contained regime in international law. That is to say that the system's countermeasures are not the normal countermeasures of international law, such as reprisals and the exceptio non-adimpleti contractus in treaty law, but are entirely separate from those normal countermeasures and are regulated so as to limit the freedom of States to have recourse to them. Although Riphagen has described the GATT not so much as a self-contained system, but as a number of ‘conventional derogations’ from general rules of international law, there is reason to look again at this assessment given the evolution that has taken place in the GATT system since then.

Type
Diversity in Secondary Rules and the Unity of International Law
Information
Netherlands Yearbook of International Law , Volume 25 , December 1994 , pp. 227 - 257
Copyright
Copyright © T.M.C. Asser Press 1994

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References

1. As mentioned by G. Arangio-Ruiz in A/CN.4/444/Add. 2 p. 12 para. 112.

2. Schwarze has documented for the European Court of Justice how far it has deviated from the normal rules of treaty interpretation, see Schwarze, J., ‘Das allgemeine Völkerrecht in den innergemeinschaftlichen Rechtsbeziehungen’, Europarecht (1983) p. 1Google Scholar et seq.

3. McGovern, E., ‘Dispute Settlement in the GATT – Adjudication or Negotiation ?’Google Scholar, in Hilf, M., Jacobs, F. & Petersmann, E.-U., The European Community and the GATT (1986) pp. 73–84.Google Scholar

4. See Japan – Restrictions on Imports of Certain Agricultural Products, BISD 35S/163, para.5.1.2 and 5.2.1 and Canada – Import Restrictions on Ice Cream and Yoghurt, BISD 36S/68, para.66 et seq; on Art. XVIII, see Korea – Restrictions on Imports of Beef, BISD 36S/268, para. 118.

5. BISD 36S/331 and also to some extent EEC – Restrictions on Import of Dessert Apples, BISD 36S/93, para. 12, 13 et seq., surprisingly this is also an interpretation of Art. XI.

6. Art. 1(b) of the Protocol of Provisional Application reads: ‘[Parties] undertake to apply provisionally Part II of [the] Agreement to the fullest extent not inconsistent with existing legislation.’

7. GATT Doc. DS32/R, EC – Member States' Import Regimes for Bananas, 3 June 1993, not yet adopted, at paras. 324–325.

8. See also Art. XXIX GATT, which refers to the Havana Charter and enjoins the contracting parties to observe parts of it to the fullest extent possible pending their acceptance of it.

9. On the other hand, it must be admitted that application of the historical method in the interpretation of the GATT need not be regressive, as the ITO was a much more complete treaty than GATT.

10. See Art. 31.3(a) and 3(b) of the Vienna Convention on the Law of Treaties.

11. The absence of stare decisis is most clearly demonstrated by the panels on US – imports of Certain Automotive Spring Assemblies, BISD 30S/107, paras 51–53, 60, 65, and US – Section 337 of the Tariff Act of 1930, BISD 36S/345, para. 5.4, where the second panel analysed Art. XX of GATT in a completely different way than the first.

12. Cf., Benedek, W., Die Rechtsordnung des GATT aus völkerrechtlicher Sicht (1990)p.147.Google Scholar

13. Cf., EEC – Quantitative Restrictions against Imports of Certain Productsfrom Hong Kong, BISD 30S/129, para. 29.

14. See GATT Doc. cited supra n. 7, paras. 361–362.

15. The panel argues that estoppel implies ‘a release of contracting parties of their obligations’, as if such a release were general, which is manifestly incorrect; estoppel ischaracterized by the fact that in a certain procedural context legal rights cannot be invoked;the corresponding obligations of the other side remain in force. Cf., the document cited at n. 7 supra, para. 362.

16. GATT Analytical Index 1993, Art. V-2, p.165.

17. US – Restrictions on the Imports of Tuna, DS29/R, 16 June 1994, not yet adopted, paras. 5.11–5.27.

18. For ease of reference we will retrict ourselves hence forth to the anti-dumping procedure.

19. Cf., lnterhandel case (Switzerland v. US), ICJ Rep. (1959) p. 6 at p. 27.

20. See Art. 22 of the draft on State responsibility, ILC Yearbook 1977 Vol. II Part 2, p. 30 et seq.

21. Petersmann, E.-U., ‘GATT Dispute Settlement Proceedings in the Field of Anit-dumping Law’, 8 CML Rev. (1991) pp. 69–113, at pp. 101–102.Google Scholar

22. Cf., Case C-69/89 Nakajima [1991] ECR 2069.

23. Cf., the so-called ELSI case, ICJ Rep. (1989) p. 15 et seq., which concerned the right flowing from the Treaty of Friendship, Commerce and Navigation between Italy and the US.

24. On the US-Mexican Claims Commission see Briggs, H.W., The Law of Nations, 2nd edn.(1952) Ch. IX.Google Scholar

25. Peters, P., ‘Dispute Settlement Arrangements in Investment Treaties’, 22 NYIL (1991) pp.91–161.CrossRefGoogle Scholar

26. Doc. ADP/82, p. 72, para. 5.9.

27. Supra n. 23.

28. ICJ Rep. (1989) p. 42.

29. Art. 13 WTO Anti-dumping Agreement and Art. 23 WTO Subsidies Agreement.

30. Art. 41(4) of the TRIPs Agreement.

31. This is all the more striking in the light of the following passage from the Interhandel case: ‘A fortiori the rule [of exhaustion of local remedies] must be observed when domestic proceedings are pending …’, ICJ Rep.(1959) at p. 27. The procedures referred to are the so-called Steel bars case and the Flat-rolled steel case. See n. 45 infra.

32. The procedure is that of EC Anti-dumping Measures Concerning Audiotapes in Cassettes Originating in Japan. Some of the claims advanced before the panel by Japan had been advancedin other ECJ cases and been rejected.

33. See Uruguayan Recourse to Article XXIII, BISD US/95, pp. 99–100, para. 15 and US – Superfund, BISD 34S/136, para. 5.1.3.

.4. Cf., US – Superfund, ibid.

35. Cf., the ILC's view that damage is not one of the conditions for state responsibility, Art. 3 ILC draft, ILC Yearbook 1973 Vol. II, pp. 179, 183.

36. See on these and other matters relative to the interest to sue: van Dijk, P., Toetsing van overheidshandelen door de nationale en de Internationale rechter en het vereiste van een procesbelang (1976) Ch. IX.Google Scholar

37. See Van Dijk, ibid.

38. See Doc. DS20/R, 16 June 1994, para 5.3, 5.4.

39. See Arts. 5–15 of the ILC draft, ILC Yearbook 1977 Vol. II Part II, p. 60 et seq.

40. Rejection in: Japan – Customs Duties, Taxes, and Labelling Practices on Imported Wines and Alcoholic Beverages, BISD 34S/83.

41. Japan – Restrictions on Imports of Agricultural Products, BISD 35S/163 et seq., para.5.4.1.4.

42. Japan – Trade in Semiconductors, BISD 36S/116, para. 104–109.

43. The so-called Lead and Bismuth cases, Fed. Reg. Vol. 58, No. 16, 27 January 1993, p. 6221–46.

44. Art. 8 ILC draft, ILC Yearbook 1974 Part II, p. 285.

45. US – Imposition of countervailing Duties on certain Hot-rolled Lead and Bismuth Carbon Steel Products, 14 October 1994, not yet adopted, para. 400.

46. US – Superfund, BISD 34S/136, para. 5.2.1–5.2.2.

47. EC – Parts and Components, BISD 37S/132, para. 5.25. There is some measure of inconsistency here with the prevailing view in GATT on the non-exhaustion of local remedies: if one is so meticulous about whether or not a law can directly cause ‘nullification or impairment’, should one not also be very cautious about whether an infringement can still be prevented by judicial action?

48. US – Section 337 of the Trade Act, BISD 36S/345, para. 5.12–5.13.

49. Doc. EPCT/TAC/PV 19, p. 33.

50. See Art. 19(7) ILO Treaty.

51. This is contrary to Arts. 5 and 6 of the ILC draft, supra n. 39.

52. Doc. L/5863, of 17/9/1985, not adopted.

53. Canada – Alcoholic Drinks I (1988), BISD 35S/37, paras. 4.23–4.24; Canada – Alcoholic Drinks II (1992) DS17/R dd. 18 January 1992, para. 5.36. US – Alcoholic and maltBeverages, DS 23/R, dd. 19 June 1992, para. 5.79.

54. Understanding on the Interpretation of Art. XXIV of the GATT, contained in Annex 1A to the WTO Agreement.

55. Art. 22 of the Dispute Settlement Understanding.

56. DS 23/R, paras. 5.78–5.80; this passage was largely based on the work of R.E. Hudec and J. Jackson in general. The US made a reservation in respect of this part of the report, when cooperating in its adoption. It is interesting to note that the draft implementation legislation presented to Congress tries to undo the consequences of this panel by limiting preemption.

57. See Petersmann, E.-U., ‘Violation-Complaints and Non-Violation Complaints in Public International Trade Law’, 34 GYIL (1991) pp. 175–229.Google Scholar

58. This was particularly relevant for State subsidies which were originally hardly disciplined in GATT.

59. Petersmann, loc. cit. n. 57, seems to answer this question in the affirmative.

60. See the Barboza Report, ILC Yearbook 1986 Vol. II Part 1, p. 145 et seq. and the ILC Report, ILC Yearbook 1989 Vol. II Part 2 p. 83 et seq.

61. EC – Oilseeds I, BISD 37S/86, para. 150–151.

62. Pescatore, P., ‘The GATT Dispute Settlement Mechanism, its present situation and its Prospects’, 27 JWT (1990) pp. 5–20, at p. 19.Google Scholar

63. EC – Oilseeds I, supra n. 61.

64. See the WTO Agreement on Subsidies and Countervailing Measures.

65. EC-Tariff Treatment on Imports of Citrus Products, Doc. L/5776, 7 February 1985, not adopted, para. 4.37.

66. Perhaps the panel did not have the courage to say that the Mediterranean agreements were not in conformity with Art. XXIV.

67. On the abuse of rights in international law, see Kiss, A., L'abus de droit en droit international (1953).Google Scholar

68. See BISD 29S/23; this was inspired by Argentine protests against sanctions taken during the Falklands/Malvinas war.

69. But see US – Restrictions on Sugar, BISD 37S/228, para. 5.20.

70. Art. 26 WTO Dispute Settlement Understanding.

71. Gray, C., Judicial Remedies in International Law (1987) p. 11Google Scholar. About the ‘law of remedies’in GATT, see White, G., ‘Legal Consequences of Wrongful Acts in International Economic Law’, 16 NYIL (1985) pp. 137–173CrossRefGoogle Scholar, especially p. 158.

72. Such a nullification of a tariff concession can be remedied through compensation (see below)or by negotiation under Art. XXVIII, see EC – Oilseeds II, DS 28/R, para. 88.

73. Art. 22.1 Dispute Settlement Understanding, see also Art. 22.8: “The suspension of concessions or other obligations shall be temporary and shall only be applied until such time … ”

74. Simma, B., ‘Self-contained Regimes’, 16 NYIL (1985) pp. 111–136.CrossRefGoogle Scholar

75. Art. 16.4 DSU, Art. 17.4 DSU, Art. 22.b DSU.

76. de Chazournes, L. Boisson, Les contre-mesures dans les relations Internationales économiques (1992) pp. 182–186Google Scholar, already now characterizes the GATT as a self-contained system, but purely on the basis of its legal provisions.

77. US – Anti-dumping Duties on Imports of Seamless Steel Hollow Products from Sweden, Doc. ADP/47, para. 5.24 and US – Anti-dumping Duties on Grey Portland Cement and Cement Clinker from Mexico, Doc. ADP/82, para. 5.36 et seq. and para. 6.1.

78. Doc. GPR.DS.1/R. A renewed tender often provides no solution.

79. Jackson, J., World Trade and the Law of GATT (1969) p. 177.Google Scholar

80. Doc. C/M/220 of 1988.

81. See Gray, op. cit. n. 71, at p. 24, on punitive damages.

82. Doc. L/61, BISD 1S/63–64; this was in the 1950s, the time of the dollar shortage.

83. Ibid. pp. 32–33.

84. It is preferred to leave the problem of international crime out of this article.

85. All goods are considered to form one sector, as it has always been possible to retaliate between different goods sectors under the GATT, see Art. 22.3(f) DSU.

86. Arts. 22.6 and 22.7 DSU.

87. Again expressed in terms of ‘equivalence’.

88. See also the widely diverging views which exist in the US on the review of executive action, Merrills, Th., ‘Judicial Deference to Executive Precedent’, 101 Yale LJ (1991–1992)p. 969.CrossRefGoogle Scholar