WTO Non-Violation Complaints: A Misunderstood Remedy at the Heart of the WTO Dispute Settlement System

Abstract

This article addresses the impact of politics and diplomacy upon the enforcement of international legal obligations through the example of non-violation complaints in the World Trade Organization (WTO). Although this remedy inherited from the past has always been criticized, both the scope and the effects of non-violation complaints upon the WTO dispute settlement system have been disregarded and misunderstood. Only a few WTO members have insisted on using this remedy to the detriment of the immense majority of WTO members for which non-violation complaints still represent an unaffordable luxury. Therefore, this article retraces the negotiation history of this remedy and its entire jurisprudence in order to demonstrate that the WTO dispute settlement system can neither undermine the results of negotiations reflecting the power struggle amongst sovereign nation-states, nor remedy their failure to negotiate by creating new legal obligations. As a result, the security and predictability of the WTO dispute settlement system is at stake, for WTO panels and the Appellate Body have been reluctant and unable to define the ambiguous legal concept of non-violation.

Footnotes

^a LL M in International Legal Studies, World Trade Organization Certificate, Georgetown University Law Center; 2005 Fellow of the Institute of International Economic Law. I would like to thank Professor William J. Davey and James P. Durling for allowing me to quote from their respective works ‘The WTO Dispute Settlement Mechanism’, Illinois Public Law and Legal Theory Research Papers Series, Research Paper No. 03-08, 25 June 2003, available at: <http://papers.ssrn.com/abstract=419943>; and ‘Original Meanings and the Film Dispute: Drafting History, Textual Evolution, and Application of the Non-Violation Nullification or Impairment Remedy’, 32 The George Washington Journal of International Law and Economics (1999) pp. 211-269. I am also very grateful to Professors John H. Jackson and Jane Bradley for their invaluable guidance and inspiration.