328
among all the parties of the treaty being interpreted.
27
Such condition is obviously
met by customary international rules, which are per definitionem binding on all
States, but it would be hardly satisfied by multilateral treaties, since it is rather
impossible that multilateral treaties with a wide participation—as is the case of
UNCLOS and the WTO Agreement—could have identical membership.
28
Nevertheless, the Panel conceded that it could consider external treaties regardless of their membership under Art. 31(1) VCLT (“[a] treaty shall be interpreted in
good faith in accordance with the ordinary meaning to be given to the terms of the
treaty in their context and in the light of its object and purpose”), with a view to
shining a light on the ordinary meaning of the terms employed therein. According
to the Panel “[s]uch rules would not be considered because they are legal rules, but
rather because they may provide evidence of the ordinary meaning of terms in the
same way that dictionaries do”.
29
Against this backdrop, the UNCLOS rules could
be eventually used by the WTO dispute settlement organs at least as informative
sources when interpreting the terms of the WTO covered agreements. Moreover, the
Panel explicitly left open the question whether extra-WTO rules that are applicable
in the relations between all parties to the dispute, but not between all WTO Members,
could be referenced for determining the correct meaning of the provisions of the
WTO covered agreements.
30
It follows, for our purposes, that the EC-Biotech Panel
27 As a result, the Panel did not consider itself obliged to take account of the Cartagena Protocol in
interpreting the EC’s WTO obligations. The Panel’s finding is mainly grounded on Art. 2(1)(g)
VCLT, defining “party” as “a State which has consented to be bound by the treaty and for which
the treaty is in force”. See EC – Biotech Panel report, para. 7.68. It is worth noting that this interpretation of the term “the parties” in Art. 31(3)(c) VCLT was in contradiction with the findings of
the Panel in the US-Shrimp compliance report. There, the Panel referred to Art. 31(3)(c) when
taking into account treaties that had been ratified by the litigant States but not by the whole WTO
membership. See WTO Panel, United States–Import Prohibition of Certain Shrimp and Shrimp
Products, Recourse to Article 21.5 by Malaysia (US-Shrimp compliance Panel report), Report, 21
November 2001, para. 5.57.
28 The Panel approach in Biotech has been highly criticized as too narrow. See the International
Law Commission (ILC) Study Group Report on Fragmentation, according to which the Panel’s
approach in EC-Biotech, by limiting the use of other relevant treaties through Art. 31(3)(c), could
potentially lead to “the isolation of multilateral agreements as islands permitting no reference inter
se in their application”. ILC, Report of the Study Group, Fragmentation of International Law:
Difficulties Arising from the Diversification and Expansion of International Law, 13 April 2006,
para. 471. Nevertheless, it should be noted that the opposite reading of Art. 31(3)(c) VCLT—that
the WTO covered Agreements could be interpreted in light of those rules of international law that
are not necessarily legally binding on all WTO Members—would also raise sensitive issues, as it
would impair the de facto precedential value of the WTO adjudicating bodies’ reports. As a matter
of fact, the same WTO rules could be differently interpreted and/or applied as between different
WTO Members party to different external treaties, to the detriment of the coherence of the overall
system. For this suggestion see Lennard (2002), p. 39, and Meltzer (2004), p. 921.
29 EC – Biotech Panel report, para. 7.92.
30 Ibidem, para. 7.72.
M. I. Papa
among all the parties of the treaty being interpreted.
27
Such condition is obviously
met by customary international rules, which are per definitionem binding on all
States, but it would be hardly satisfied by multilateral treaties, since it is rather
impossible that multilateral treaties with a wide participation—as is the case of
UNCLOS and the WTO Agreement—could have identical membership.
28
Nevertheless, the Panel conceded that it could consider external treaties regardless of their membership under Art. 31(1) VCLT (“[a] treaty shall be interpreted in
good faith in accordance with the ordinary meaning to be given to the terms of the
treaty in their context and in the light of its object and purpose”), with a view to
shining a light on the ordinary meaning of the terms employed therein. According
to the Panel “[s]uch rules would not be considered because they are legal rules, but
rather because they may provide evidence of the ordinary meaning of terms in the
same way that dictionaries do”.
29
Against this backdrop, the UNCLOS rules could
be eventually used by the WTO dispute settlement organs at least as informative
sources when interpreting the terms of the WTO covered agreements. Moreover, the
Panel explicitly left open the question whether extra-WTO rules that are applicable
in the relations between all parties to the dispute, but not between all WTO Members,
could be referenced for determining the correct meaning of the provisions of the
WTO covered agreements.
30
It follows, for our purposes, that the EC-Biotech Panel
27 As a result, the Panel did not consider itself obliged to take account of the Cartagena Protocol in
interpreting the EC’s WTO obligations. The Panel’s finding is mainly grounded on Art. 2(1)(g)
VCLT, defining “party” as “a State which has consented to be bound by the treaty and for which
the treaty is in force”. See EC – Biotech Panel report, para. 7.68. It is worth noting that this interpretation of the term “the parties” in Art. 31(3)(c) VCLT was in contradiction with the findings of
the Panel in the US-Shrimp compliance report. There, the Panel referred to Art. 31(3)(c) when
taking into account treaties that had been ratified by the litigant States but not by the whole WTO
membership. See WTO Panel, United States–Import Prohibition of Certain Shrimp and Shrimp
Products, Recourse to Article 21.5 by Malaysia (US-Shrimp compliance Panel report), Report, 21
November 2001, para. 5.57.
28 The Panel approach in Biotech has been highly criticized as too narrow. See the International
Law Commission (ILC) Study Group Report on Fragmentation, according to which the Panel’s
approach in EC-Biotech, by limiting the use of other relevant treaties through Art. 31(3)(c), could
potentially lead to “the isolation of multilateral agreements as islands permitting no reference inter
se in their application”. ILC, Report of the Study Group, Fragmentation of International Law:
Difficulties Arising from the Diversification and Expansion of International Law, 13 April 2006,
para. 471. Nevertheless, it should be noted that the opposite reading of Art. 31(3)(c) VCLT—that
the WTO covered Agreements could be interpreted in light of those rules of international law that
are not necessarily legally binding on all WTO Members—would also raise sensitive issues, as it
would impair the de facto precedential value of the WTO adjudicating bodies’ reports. As a matter
of fact, the same WTO rules could be differently interpreted and/or applied as between different
WTO Members party to different external treaties, to the detriment of the coherence of the overall
system. For this suggestion see Lennard (2002), p. 39, and Meltzer (2004), p. 921.
29 EC – Biotech Panel report, para. 7.92.
30 Ibidem, para. 7.72.
M. I. Papa