MEAs

The Argument

• The status of MEAs in WTO law is unclear– Not a source of law– Scepticism regarding their status

• Theoretically, it could be resolved through either– Legislative action– Case law

• The Case law-option seems more promising – It avoids peace meal approach– Is more flexible (can be adjusted to specific

circumstances)

MEAs: No Source of WTO Law

• Sources of WTO law are the covered agreements (1.1 DSU): MEAs are not part of them

• CTE has entertained a discussion on their relevance since 1996

– Wording in CTE/1 (1996) and CTE/96 (2010) is almost identical and denotes lack of clarity regarding the status of MEAs urging WTO Members to work in this direction

No Source of Law is not the End

• MEAs could be used as interpretative element (Art. 31 VCLT)

– To this effect, recourse to case law (adjudication practice) is necessary

Case Law: no Clear Outcome

• First, AB (US – Shrimp) uses CITES to confirm a meaning of a GATT term

– AB proceeds in this way satisfied that the MEA is relevant since both parties to the dispute had signed it

• Then, a panel (EC – Biotech) refuses to do the same without however, explicitly reversing the prior AB ruling

Case Law: Where Do We Stand?

• AB is the higher organ, but there is no stare decisis (binding precedent) in WTO, although panels are expected to follow AB rulings (Mexico – Steel, AB)

• The panel report is the more recent pronouncement: is it deliberate deviation?

• At any rate, MEAs have been used as supplementary means (Art. 32 VCLT) only (to confirm a meaning)

But, WTO Knows Inter Se Agreements

• Agreements between su-part of WTO Membership– Non-application– Plurilaterals– PTAs– Recognition– Export Credits (OECD)– Tariff Reductions (ITA)– International Standards (TBT/SPS)

How Can We Clarify This Issue?

• In theory there are two options:

– Legislative

– Case law

The Legislative Option

• Amending WTO agreement– Art. X Agreement Establishing the WTO, ¾ must

sign

• Practice recommends caution– Only one amendments has so far been proposed– Kennedy (JIEL, 2010): serious shortcomings, the

amendment has still not been signed by the required ¾

• It is transaction-specific– It can concern only specific MEAs (those included

in the amendment)

• MEAs become a source of WTO law

Case Law

• Panels could use VCLT to ‘import’ MEAs in WTO law, provided that– 30, 34 VCLT have been complied with (rights and

obligations of third parties)

• Panels can provide the methodology to import any MEA into WTO law

• Caution: MEAs will not thus become source of law, but only an interpretative element (only Members can add to sources of law)

Summing Up

• Assuming political will to do so

– Legislative option makes MEAs a source of law (like GATT etc.) but is a cumbersome procedure; this means that MEAs can alter the balance of rights and obligations

– Case law-approach is flexible (the test will accept the relevance of some, not of others), more ‘economical’ but relegates MEAs to interpretative elements (used to interpret the existing sources of law)