This study treats with the issues in interpretating the WTO provisions, such as ambiguity of provisions and rules, about Appellate body Reports under the DSB of WTO, Case reports of EU and NAFTA from 1, 1, 1995 to nowadays. Through analysis of the rul ...
This study treats with the issues in interpretating the WTO provisions, such as ambiguity of provisions and rules, about Appellate body Reports under the DSB of WTO, Case reports of EU and NAFTA from 1, 1, 1995 to nowadays. Through analysis of the rules and recommendation of the DSB and of member countries' argument about justification of provisions or rules, this study seeks interpretation principle of international trade law through the analysis of the main disputing agendas.
1) Though WTO is interpreted by various interpretation method, according to the Vienna Convention on the Law of Treaties, a treaty shall be interpreted in good faith in accordance with the ordinary meaning in the textual.
Appellate Body has regularly said that it relies on the interpretive rules in Articles 31 and 32 of the Vienna Convention on the Law of Treaties. Moreover, the Appellate Body has made clear that it would consistently apply the most fundamental of those rules that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose.
2) This study seeks harmonized resolutions of trade and environmental conflicts within the WTO agreements, considering the practical difficulty of relating legally the multilateral environmental agreements with the WTO provisions.
Summarizing the cases dealt in the dispute settlement procedures under GATT/WTO, since the launch of the WTO, trade measures for environmental protection in several cases have been justified, which is meaningful for the harmonization of trade and environment. However, if the main issues are solved just by interpreting the existing provisions, it can threaten the stability and predictability in applying law for new environmental issues.
3) There has been particularly the tension arising from the constraints that WTO law places upon Members who wish to take a precautionary approach to environmental protection. There is a discrepancy in the scope of the application between SPS Agreement and the international environmental agreements including Cartagena Protocol. Therefore, conflicts have occured between the Protocol focusing on trade restrictions for environment and the SPS Agreement focusing on regulation of the trade restriction for environment.
This study discusses the establishment of the standard of review applicable to the SPS Agreement focusing on harmonizing the potential precautionary principle as the customary international law with the SPS provisions, and suggests the "reasonable regulator" standard as the proper one specific to the SPS Agreement. The "reasonable regulator" standard means that if a reasonable regulator might conclude that there is a scientific basis for an impugned measure, then the panel should not overturn it.
4) Environmental labelling programs, contributing to the promotion of international trade of eco-friendly product tend to be less trade restrictive than other trade-restrictive environmental measures. The most contentious debate surrounding the applicability of the TBT Agreement to PPMs-based ecolabeling programs comes from the ambiguous definition of the terms "technical regulation" and "standards" in the Agreement. In addition, GATT panel decisions have decreased predictability and stability in operating the ecolabeling policy, and the adoption of the current TBT Agreement under the WTO has increased the speculation on the legality of the eoclabling programs.
In this regard, there have been some proposals: one is that the scope of the TBT Agreement should be extended or reinterpreted to regulate all kinds of ecolabeling programs. Under the GATT/WTO practices, if environmental labelling programs based on non-product related PPMs were incorporated into the WTO regime, it would be contradictory to the judicial interpretations of the "like product"