329
report did not completely close the door to the possibility of using UNCLOS rules
for interpretative purposes in future cases before the WTO adjudicating bodies.
31
This possibility is even reinforced by the Appellate Body’s findings in the
EC-Civil Aircraft report.
32
In that case, the Appellate Body was faced for the first
time with the issue of interpretation of the phrase “the parties” contained in Art.
31(3)(c) VCLT. The EC claimed that its obligations under the WTO Agreement on
Subsidies and Countervailing Measures (SCM Agreement) had to be construed in
the light of a 1992 bilateral agreement between itself and the United States, while
the United States, relying on the EC-Biotech Panel report, maintained that only treaties to which all WTO Members are parties could be considered. Although the
Appellate Body ultimately found that Art. 4 of the 1992 Agreement could not be
regarded as a “relevant” rule of international law, within the terms of Art. 31(3)(c)
VCLT, for the specific dispute at issue,
33
it decided to comment on the proper interpretation of the latter provision.
The Appellate Body took a more nuanced position than the one adopted by the
Panel in EC-Biotech. On the one hand, it stressed that caution is needed in drawing
guidance from treaties to which not all WTO Members are parties, as the purpose of
treaty interpretation is to establish the common intention of the parties to the treaty.
On the other, it also noted that a proper interpretation of the formula “the parties” in
Art. 31(3)(c) VCLT should take account of the fact that the latter provision is an
expression of the principle of systemic integration, aiming at ensuring “that ‘international obligations are interpreted by reference to their normative environment’ in
a manner that gives ‘coherence and meaningfulness’ to the process of legal interpretation”. The Appellate Body therefore concluded by observing that “[i]n a multilateral context such as the WTO, when recourse is had to a non-WTO rule for the
purposes of interpreting provisions of the WTO agreements, a delicate balance must
be struck between, on the one side, taking due account of an individual WTO
Member’s international obligations and, on the other side, ensuring a consistent and
harmonious approach to the interpretation of WTO law among all WTO Members”.
34
These findings are important because they move away from the rigid and formalistic method applied by the Panel in EC-Biotech and endorse a case-by-case
31 On the question, see in general Flett (2012), p. 303. In any case, it should be noted that the
Panel’s ruling was not appealed. Therefore, the Appellate Body did not have the opportunity to
express its view on this matter.
32 See WTO Appellate Body, European Communities and Certain Member States-Measures
Affecting Trade in Large Civil Aircraft (EC and Certain Member States-Large Civil Aircraft (AB)),
Report, 18 May 2011.
33 Ibidem, para. 855. The Appellate Body added further considerations on the issue of how “relevance” under Art. 31(3)(c) VCLT should be determined in Peru-Additional Duty on Imports of
Certain Agricultural Products (Peru-Agricultural Products (AB)), Report, 20 July 2015, para.
5.101 ([i]n order to be “relevant” for purposes of interpretation, rules of international law within
the meaning of Article 31(3)(c) of the Vienna Convention must concern the same subject matter as
the treaty terms being interpreted). For the view that the term “relevant” represents “the crux of the
functionality of Article 31(3)(c)”, see Merkouris (2015), p. 48.
34 EC and Certain Member States-Large Civil Aircraft (AB), para. 845.
The Relationship Between International Trade Law and the Law of the Sea in the WTO…
report did not completely close the door to the possibility of using UNCLOS rules
for interpretative purposes in future cases before the WTO adjudicating bodies.
31
This possibility is even reinforced by the Appellate Body’s findings in the
EC-Civil Aircraft report.
32
In that case, the Appellate Body was faced for the first
time with the issue of interpretation of the phrase “the parties” contained in Art.
31(3)(c) VCLT. The EC claimed that its obligations under the WTO Agreement on
Subsidies and Countervailing Measures (SCM Agreement) had to be construed in
the light of a 1992 bilateral agreement between itself and the United States, while
the United States, relying on the EC-Biotech Panel report, maintained that only treaties to which all WTO Members are parties could be considered. Although the
Appellate Body ultimately found that Art. 4 of the 1992 Agreement could not be
regarded as a “relevant” rule of international law, within the terms of Art. 31(3)(c)
VCLT, for the specific dispute at issue,
33
it decided to comment on the proper interpretation of the latter provision.
The Appellate Body took a more nuanced position than the one adopted by the
Panel in EC-Biotech. On the one hand, it stressed that caution is needed in drawing
guidance from treaties to which not all WTO Members are parties, as the purpose of
treaty interpretation is to establish the common intention of the parties to the treaty.
On the other, it also noted that a proper interpretation of the formula “the parties” in
Art. 31(3)(c) VCLT should take account of the fact that the latter provision is an
expression of the principle of systemic integration, aiming at ensuring “that ‘international obligations are interpreted by reference to their normative environment’ in
a manner that gives ‘coherence and meaningfulness’ to the process of legal interpretation”. The Appellate Body therefore concluded by observing that “[i]n a multilateral context such as the WTO, when recourse is had to a non-WTO rule for the
purposes of interpreting provisions of the WTO agreements, a delicate balance must
be struck between, on the one side, taking due account of an individual WTO
Member’s international obligations and, on the other side, ensuring a consistent and
harmonious approach to the interpretation of WTO law among all WTO Members”.
34
These findings are important because they move away from the rigid and formalistic method applied by the Panel in EC-Biotech and endorse a case-by-case
31 On the question, see in general Flett (2012), p. 303. In any case, it should be noted that the
Panel’s ruling was not appealed. Therefore, the Appellate Body did not have the opportunity to
express its view on this matter.
32 See WTO Appellate Body, European Communities and Certain Member States-Measures
Affecting Trade in Large Civil Aircraft (EC and Certain Member States-Large Civil Aircraft (AB)),
Report, 18 May 2011.
33 Ibidem, para. 855. The Appellate Body added further considerations on the issue of how “relevance” under Art. 31(3)(c) VCLT should be determined in Peru-Additional Duty on Imports of
Certain Agricultural Products (Peru-Agricultural Products (AB)), Report, 20 July 2015, para.
5.101 ([i]n order to be “relevant” for purposes of interpretation, rules of international law within
the meaning of Article 31(3)(c) of the Vienna Convention must concern the same subject matter as
the treaty terms being interpreted). For the view that the term “relevant” represents “the crux of the
functionality of Article 31(3)(c)”, see Merkouris (2015), p. 48.
34 EC and Certain Member States-Large Civil Aircraft (AB), para. 845.
The Relationship Between International Trade Law and the Law of the Sea in the WTO…