Clarifying the Status of MEAs in WTO Law

1. MEAs

2. 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)

3. 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

4. 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

5. 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

6. 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 confirma meaning)

7. 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)

8. How Can We Clarify This Issue? • In theory there are two options: • Legislative • Case law

9. 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

10. 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)

11. 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)