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Principles of International Law in The WTO Dispute Settlement Body

Published online by Cambridge University Press:  17 January 2008

James Cameron  and
Kevin R. Gray
James Cameron
Affiliation:
Mr Cameron is of counsel to Baker & McKenzie; Professor, College of Europe, Bruges, Belgium; Senior Fellow, Yale Center for Environmental Law and Policy.
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Extract

Unlike the original 1947 General Agreement on Tariffs and trade (GATT), the 1994 Agreement establishing the World Trade Organization (WTO Agreement)1 covers a much wider range of trade. It extends beyond goods and now embraces services, intellectual property, procurement, investment and agriculture. Moreover, the new trade regime is no longer a collection of ad hoc agreements, Panel reports and understandings of the parties. All trade obligations are subsumed under the umbrella of the WTO, of which all parties are members. Member States have to accept the obligations contained in all the WTO covered agreements: they cannot pick and choose.

Type
Articles
Information
International & Comparative Law Quarterly , Volume 50 , Issue 2 , April 2001 , pp. 248 - 298
Copyright
Copyright © British Institute of International and Comparative Law 2001

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References

1. Agreement Establishing the World Trade Organisation in Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations (1994) 33 I.L.M. 1125.Google Scholar

2. Annex 2 to the WTO Agreement (1994) 33 I.L.M. 1226 (hereinafter DSU).Google Scholar

3. Article 6.

4. Ibid.

5. Petersmann, E.U.The GATT/WTO Dispute Settlement System (Kluwer Law International, London: 1997) at 64.Google Scholar

6. Jackson, J. H., The World Trading System (MIT Press: Boston, 1989) at 85Google Scholar. See also Hudec, R. E., Enforcing International Trade Law: The Evolution of the Modern GATT Legal System (Salem, N.H.: Butterworths, 1993)Google Scholar, Steger, D. P. and Hainsworth, S. M., “New Directions in International Trade Law: WTO Dispute Settlement”Google Scholar, Cameron, J. and Campbell, K., Dispute Settlement in the WTO (Cameron May: London, 1998)Google Scholar. Aldonas, G. D., “The World Trade Organization: Revolution in International Trade Dispute Settlements” (1995) 3 Dispute Resolution Journal 73 at 79.Google Scholar

7. DSU, Article 3:7.

8. Chua, A., “The Precedential Effect of WTO Panel and Appellate Body Reports”, (1998) 11 L.J.I.L. 45 at 46.Google Scholar

9. Nichols, P., “GATT Doctrine” (1996), 2 Virginia J. of Int. Law, 379 at 380.Google Scholar

10. DSU, Article 12.

11. DSU, Article 20.

12. DSU, Article 17:5. The Law of the Sea tribunal also appears to deal with disputes expeditiously. The decision ordering the release of an oil tanker that was bunkering (refuelling) a fishing vessel within the EEZ of Guinea, took less than three weeks from the application for relief. (MV “Saiga” Cases—Saint Vincent and the Grenadines v. Guinea, (1998).)

13. DSU Article 21.4.

14. Overview of the State-of-Play of WTO Disputes, (22 June 2000) (http://www.wto.org/english/tratop_e/dispu_e/stplay_e.doc).

15. From 1991–1994, there were 36 complaints filed with 12 leading to Panel reports of which only four were adopted. In the 1980s, 115 complaints were filed with 47 of them producing Panel reports. In the 1970s, only 32 complaints were filed with 16 resulting in the circulation of a Panel report. (See Hudec, supra n.6 and Steger and Hainsworth, supra n.6 at 4.)

16. D. M. McRae notes that the establishment of an Appellate Body in an international regime is a relatively novel development with only a few other examples of international tribunals exercising an appellate jurisdiction of international judicial bodies; “The Emerging Appellate Jurisdiction in International Trade Law” in Cameron and Campbell, supra n.8 at 1. For instance, Chapter 19 of the North American Free Trade Agreement provides for a challenge procedure to a NAFTA Panel decision. An Extraordinary Challenge Committee is appointed for each case. A referral to the Committee can only be made where; 1) a member of the original dispute Panel was guilty of gross misconduct, bias, or a serious conflict of interest, or materially violated the rules of conduct; or 2) the Panel seriously departed from a fundamental rule of procedure; or 3) the Panel manifestly exceeded its powers, authority or jurisdiction and where any of the actions stated above has materially affected the Panel's decision and has threatened the integrity of the binational Panel review process. (Article 1904.13) This jurisdiction is similar to the annulment procedure under the ICSID Convention (Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (1965) 575 U.N.T.S. 160).Google Scholar

17. Aldonas, supra n.6 at 73.

18. DSU, Article 3.2.

19. Eventually, GATT 1947 contracting parties adopted certain procedural rules and understandings that governed dispute settlement.

20. Kuijper, P., “The New WTO Dispute Settlement System—The Impact on the European Community” (1996) 29 (6) Journal of World Trade 49 at 51.Google Scholar

21. , Petersmann, supra n.5 at 17.Google Scholar

22. (1969), 8 I.L.M. 679Google Scholar (hereinafter VCLT). GATT 1947 Panels seldom referred to the VCLT although it was recognised in US Restrictions on Imports of Tuna, 33 I.L.M. 839Google Scholar. This could be attributable to the fact that the GATT 1947 was not a treaty among nations but an agreement that countries acceded to by means of the Protocol of Provisional Application, 30 10 1947, 61 Stat. A2051, 55 U.N.T.S. 308Google Scholar. (See Nichols, supra n.9 at 390.)

23. Nichols, Ibid at 422.

24. This interpretative requirement extends beyond GATT 1994 and includes other agreements such as TRIPS (India—Patent Protection for Pharmaceutical and Agricultural Chemical Products WT/DS50/AB/R, Dec. 1997) (hereinafter referred to as TRIPs) and the Agreement on Textiles and Clothing (“United States—Restrictions on Imports of Cotton and Man-Made Fibre Underwear (Adopted on 25 Feb. 1997, WT/DS24.R) (hereinafter referred to as Underwear).

25. European Community Customs Classification of Certain Computer Equipment (hereinafter LAN Computers). WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R, para. 84. For an opposite view, see Palmeter, D. and Mavroidis, P. C., “The WTO Legal System: Sources of Law” (1998) 92 A.J.I.L. 398Google Scholar, who argue that all the subparagraphs of Article 38(1) of the Statute of the International Court of Justice are potential sources of law applicable to a WTO dispute.

26. In EEC—Regulation on Imports of Parts and Components (1990) 2 W.T.M. 3Google Scholar, Article XX(d) of the GATT 1947 was interpreted in accordance with Article 31 of the VCLT. See also Klabbers, J., “Jurisprudence in International Trade Law; Article XX of GATT” (1992) 26 J.W.T. 63 at 86Google Scholar. There are a few examples where GATT 1947 Panels have used the principles stated in the VCLT to interpret the GATT 1947 without any explicit reference to the VCLT. See United States—Restrictions on Imports of Sugar, (1989) 36 Supp.BISD 331Google Scholar for the application of the “ordinary meaning” principle mirrored in Article 31(1). Some of the principles expressed in the VCLT, such as looking at the “plain meaning” and “contextual understanding” of the GATT 1947 were applied. European Economic Community—Restrictions on Imports of Dessert Apples—Complaint by Chile, 36 Supp.BISD 93Google Scholar, (hereinafter referred to as Dessert Apples), Canada—Measures Affecting Exports of Unprocessed Herring and Salmon (1988) 35 Supp.BISD 98Google Scholar (hereinafter referred to as Herring). The Panel in Japan-Taxes, ruled that Article 3(2) only codified existing GATT Panel practice, despite jurisprudence indicating a great deal of variance in the approaches to interpreting GATT 1947, Section D, p.10.

27. Drafting history, including the trauvaux preparatoires, is only useful as a supplementary means of interpretation under customary rules of international treaty interpretation. See Article 32 of the VCLT.

28. Nichols, supra n.9 at 430. Referring to the travaux preparatoires was problematic because most of the parties did not participate in the original drafting of the GATT 1947. See Petersmann, supra n.5 at 112–113.

29. Japan-Taxes at Section D, p.10. This was a reaffirmation of what was stated in United States—Standards For Reformulated and Conventional Gasoline (1996) WT/DS2/AB/R (hereinafter Reformulated Gasoline.)

30. Japan-Taxes, Ibid at p.10. For further discussion, see Nichols, supra n.9 at 429.

31. This meaning was imported from the Herring dispute.

32. WT/DS33/2.

33. Circumstances of conclusion can include, in the context of interpreting tariff schedules, classifications by the parties. See LAN Computers, Section V, para. 92. See also European Communities—Measures Affecting The Importation of Certain Poultry Products, WT/DS69/AB/R, 13 July 1998, Section IV, para. 83 (hereinafter referred to as Poultry).

34. Article 32 states the secondary sources of treaty interpretation are to be referred to only for confirming the treaty's meaning after applying Article 31 or determining the meaning when, after applying Article 31, the interpretation leaves the treaty's meaning ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable. Adherence to this rule has been seen in Japan-Taxes, Section D, p.10, LAN Computers, Section V, para. 86, and previous GATT Panels under GATT 1947 (Tuna II GATT Dispute Settlement Panel, (DS 29/R, 3 Sept. 1994), (hereinafter Tuna-Dolphin II), United States—Restriction On Imports of Tuna, (1991) 30 I.L.M. 1594Google Scholar (herinafter Tuna-Dolphin 1).

35. Hereinafter referred to as GATS.

36. Canada—Certain Measures Concerning Periodicals (WT/DS31/AB/R) (hereinafter referred to as Canadian Periodicals). The Appellate Body did not refer to discussions held during the Uruguay Round but to the Reports of the Committees and Principal Sub-Committees of the Interim Commission for the International Trade Organization in 1947. ICITO 1/8, Geneva, September 1948.

37. The Panel in the LAN Computers dispute was overruled by the Appellate Body, for its failure to examine the context of a tariff schedule or the object and purpose of the WTO Agreement and the GATT 1994, before resorting to an examination of the legitimate expectations of the parties (Section V, para. 88). For a detailed discussion of legitimate expectations, see the section below.

38. United States—Import Prohibition of Certain Shrimp and Shrimp Products (1998). WT/DS58/AB/R, Section VI, A., para. 115 (hereinafter referred to as Shrimp-Turtle).

39. Section VI, A, para. 121.

40. (1966) Yearbook of the International Law Commission, Vol. II, p.219Google Scholar, as referred to by the Appellate Body in Japan-Taxes.

41. Japanese Agricultural Products case, (1988) 27 I.L.M. 1539.Google Scholar

42. Section IV, p.22.

43. Section V, C (i), para. 5.17. This was confirmed by the Appellate Body in other disputes: Japan—Alcoholic Beverages, p.12; Canada: Measures Affecting the Importation of Milk and the Exportation of Dairy Products, WT/DS103/AB/R, WT/DS113/AB/R, adopted 27 Oct. 1999, para. 133; and Footwear, at para. 88.

44. European Communities—Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/AB/R (hereinafter Bananas).

45. Footwear, at para. 81. The Appellate Body in Korea-Definitive Safeguard Measure on Imports of Certain Dairy Products, WT/DS98/AB/R, 14 Dec. 1999 at Section IV, para. 81, (hereinafter referred to as Korea—Milk) referred to a general duty in international law, as evidenced by I.C.J. jurisprudence, to interpret a treaty as a whole.

46. Guatemala—Anti Dumping Investigation Regarding Portland Cement from Mexico (WT/DS60/AB/R), Section IV, para. 68, (hereinafter Guatemala Anti-Dumping).

47. Section IV, para. 65.

48. Ibid. A difference was found by the Appellate Body in Brazil—Export Financing Programme for Aircraft, adopted 20 Aug. 1999, WT/DS46/AB/R, para. 132 (hereinafter Brazil—Aircraft) with respect to the provisions governing the implementation of the recommendations and rulings of the DSB in a dispute pursuant to Article 4 of the SCM Agreement.

49. Japan—Taxes, Sections G, H(1).

50. Ibid, at Section H(2)(c).

51. The Permanent Court of Justice identified the principle as meaning that “if the wording of a treaty provision is not clear, in choosing between several admissible interpretations, the one which involves the minimum of obligations for the parties should be adopted”. See Frontier between Turkey and Iraq (1925), Series B, No. 12, at 25. This rule is analogous to the margin of appreciation doctrine applied by the European Court of Human Rights that defers to the government's position in certain situations. See O'Donnell, T. A., “The Margin of Appreciation Doctrine: Standards in the Jurisprudence of the European Court of Human Rights” (1982) 4 Hum. Rts. Q 474CrossRefGoogle Scholar. See also McRae supra n.15 at 10.

52. EC Measures Concerning Meat and Meat Products (Hormones) WT/DS26/AB/R, WT/DS48/AB/) hereinafter referred to as Beef Hormones). The Appellate Body referred to excerpts from Jennings, R. and Watts, A. (eds.), Oppenheim's International Law, 9th ed., Vol. I (Longman, 1992), p.1278Google Scholar and also to I.C.J. case law including the Nuclear Tests Case (Australia v. France, (1974), I.C.J. Rep., 267 Access of Polish War Vessels to the Port of Danzig (1931) PCIJ Rep., Series A/B, No. 43, 142 (Perm. Ct. of International Justice); USA–France Air Transport Services Arbitration (1963), 38 I.L.R. 243Google Scholar (Arbitral Trib.), as well as writers in international law). In the GATT 1947 body of jurisprudence, judgments by the I.C.J. received only nominal adoption into the GATT regime, simply referred to in the footnotes of decisions as opposed to being directly applied in the body of a ruling.

53. Brown, L. (ed.), The New Shorter Oxford English Dictionary on Historical Principles (Clarendon Press), Vol. I.Google Scholar

54. Beef Hormones, at Section X A, para. 165.

55. Brazil—Measures Affecting Desiccated Coconut (1997), WT/DS22/R, Section VI, A, 1 (b) (ii). The Appellate Body (WT/DS22/AB/R, AB-19967–4, Section E 3) (hereinafter referred to as Brazil—Coconut, upheld this part of the ruling.)

56. This was in contradiction to an earlier GATT Panel ruling in United States—Countervailing Duties on Fresh, Chilled and Frozen Pork from Canada (adopted 11 July 1991), BISD 38S/30, where the Panel indicated, in passing, that the SCM Code represented subsequent practice under Article VI of GATT 1947. A. Chua argues that DSB decisions would be more unlikely to constitute subsequent practice since Panel reports are now automatically adopted rather than through a unanimous consensus. Supra, n.8 at 59.

57. See supra n.82.

58. Petersmann, supra n.5 at 95.

59. Germany v. Council (Re Banana Regime) (Case 280/93), [1998] E.C.R. 1019Google Scholar, O'Dwyer & Others v. E.C. Council, [1995] 11 E.C.R. 2071Google Scholar. In August Topfer & Co. GmbH v. Council (Case T–115/94), [1997] 1 C.M.L.R. 733Google Scholar, the European Court of Justice held that the principle of legitimate expectations was the corollary of the principle of good faith in public international law.

60. Steiner, J. &Woods, L., Text book on EC Law, (London: Blackstone Press Ltd; 1998) at 105.Google Scholar

61. Codified in Article 26 of the VCLT.

62. The Case of the SS Lotus, Judgment No. 9, (P.C.I.J.), Ser. A. No. 10 (1927). The Lotus case has been questioned by scholars, mainly because of the court's approach to jurisdiction over the high seas, Brownlie at 305. See also , Fitzmaurice (1957) 92 Hague Recuieil II at 56Google Scholar and Lauterpacht, E. (1970), International Law: Collected PapersGoogle Scholar. The Court ruled that the Turkish authorities had wide discretion to extend its criminal law jurisdiction beyond its territory partly due to the absence of rules prohibiting this. Article 11(1) of the High Seas Convention and Article 97(1) of UNCLOS have explicitly overturned this finding, allowing only the flag State to exercise penal or disciplinary proceedings over collisions on the high seas.

63. T. Cottier and K. N. Schefer, “Non-Violation Complaints in WTO/GATT Dispute Settlement: Past, Present and Future” 143 in Petersmann, supra n.126 at 166.

64. Underwear Panel at Section VII B para. 7.20. See also the Superfund case, (Panel Report on United States—Taxes on Petroleum and Certain Imported Substances, adopted on 17 06 1987, BISD 34S/136)Google Scholar, where it was noted that such rules and disciplines “are not only to protect current trade but also to create the predictability needed to plan future trade.” The TRIPs Panel adopted the similar view taken in the Underwear and the Superfund cases, where the importance of protecting the expectations of the contracting parties as to the competitive relationship between their products and those of other contracting parties was recognised.

65. A violation of the WTO Agreements can be seen where the attainment of an objective is impeded by the application of a particular measure (GATT 1994, Art. XXIII 1(b)).

66. Section VII B para. 7.20.

67. European Communities—Customs Classification of Certain Computer Equipment, WT/DS62/R, WT/DS67/R, WT/DS68/R, Section VII C, para. 8.23.

68. The Panel referred to the decision in European Economic Community—Payments and Subsidies Paid to Processors and Producers of Oilseeds and Related Animal Feed Proteins, adopted on 25 01 1990, BISD 37S/86Google Scholar, to support this point.

69. The good faith obligation extends to the performance of a treaty that is in force as well as governs negotiations. See VCLT, Article 26.

70. The Appellate Body in TRIPs ruled that it could not be invoked in the context of TRIPs, which only allowed complaints to the DSB to be made for violation complaints under Art. XXIII of GATT. Section V, para. 41. In addition, the Appellate Body held that legitimate expectations do not form a part of treaty interpretation under the rubric of good faith in Article 31(1) of the VCLT.… “the principles of interpretation neither require nor condone the imputation into a treaty of words that are not there or the importation into a treaty of concepts that were not intended.” (para. 45).

71. Section V, para. 80.

72. Section V, para 81.

73. Section V, paras 83, 84. See also TRIPs at para. 45.

74. Japan—Taxes, Section E, p.14. The concept of “reasonable expectations” was first introduced in GATT jurisprudence by the Panel in Australian Subsidy on Ammonium Sulphate, GATT, BISD Vol. II, 188 (1952)Google Scholar. In the Dessert Apples case, although the GATT Panel ruled out the precedential value of Panel reports, it still held that the legitimate expectations by a party on an adopted Panel report can be taken into account.

75. GATT, BISD Vol. II, 188 (1952).Google Scholar

76. BISD L/6268—35/S-98.

77. Canada referred to the 1952 International Convention for the High Seas Fisheries of the North Pacific (1952) U.N.T.S. 65Google Scholar, and the 1985 treaty between Canada and the United States concerning Pacific salmon.

78. United Nations Convention of the Law of the Sea, (1982), 21 I.L.M. 1261.Google Scholar

79. The Panel added that the dispute had no bearing on the question of fisheries jurisdiction.

80. Article 31(3)(c).

81. Reformulated Gas, Appellate Body, Section III B.

82. Cameron, J. & Robinson, J., “The Use of Trade Provisions in International Environmental Agreements and their Compatibility with the GATT, (1991) 2 Y.I.E.L. 3Google Scholar. Dunoff, J., “Institutional Misfits: The GATT, The ICJ & Trade-Environment Disputes” (1993–1994) 15 Michigan Journal of International Law 1043 at 1065Google Scholar. See also Petros Mavroidis, C., “Das GATT als self-contained Regime,” Recht der International Wirtschaft, 1991, 497)Google Scholar. Brack, D., “Reconciling the GATT and Multilateral Environmental Agreements with Trade Provisions: The Latest Debate”, (1997) 6:2 Review of European Community and International Environmental Law 112.CrossRefGoogle Scholar

83. Thailand—Restrictions on Importation of and Internal Taxes on Cigarettes (BISD 37S/200).

84. In a similar situation, the U.S. was faulted for not doing this in the Shrimp-Turtle dispute (see infra).

85. The Panel noted that the need to conserve the dolphin was recognised internationally through the work of the Inter-American Tropical Tuna Commission and UNCLOS.

86. DS29/R and (1994) I.L.M. 842.Google Scholar

87. Petersmann, supra n.5 at 127, contends that the Tuna II Panel decision raises two questions. The first one is whether subsequent agreements and subsequent practice, under Article 31, cover agreements and practices, which explicitly refer to GATT/WTO rules. The other question he poses is why the Panel did not apply the general rule of treaty interpretation requiring it to take into account any relevant rules of international law, potentially expressed in multilateral agreements that are applicable in the relations between the parties under Article 31:3 of VCLT. Principle 12 of the Rio Declaration on Environment and Development (1992) 31 I.L.M. 874Google Scholar, specifically refers to GATT 1947, Article XX, therefore supporting the customary international legal principle calling for harmonisation of MEAs with WTO law.

88. Another problem is whether the MEA is unclear about the relationship with the WTO Agreements. This is certainly evident when reading the vague provisions contained in the preamble to the Cartegena Protocol on Biosafety to the Convention on Biological Diversity (2000) herinafter referred to as the Biosafety Protocol.

89. There were no references to MEAs in the Reformulated Gas dispute but there was no imperative reason to make such a reference since the measure primarily involved nationally driven American standards for gasoline quality.

90. “Amicus Brief”, written by J. Cameron and F. Darroch for FIELD on behalf of the World Wildlife Fund for Nature at 2. This requirement was argued to be based on treaty law as well as regional agreements such as the ASEAN Agreement on the Conservation of Nature and Natural Resources, (1985) 15 E.P.L. 64Google Scholar, which contribute to international law providing for the protection of sea turtles.

91. (1982) 31 I.L.M. 822.Google Scholar

92. (1973) 993 U.N.T.S. 243.Google Scholar

93. (1982) 21 I.L.M. 1261.Google Scholar

94. (1983) 19 I.L.M. 15.Google Scholar

95. Shrimp-Turtle, Part VI C 2, para. 171.

96. (1996) Inter-American Convention for the Protection and Conservation of Sea Turtles. Available at http://www.csf.colorado.edu.

97. Shrimp-Turtle Part VI C 2, para. 168.

98. Shrimp-Turtle, Ibid., Section II 2 D 3, para. 72.

99. The Appellate Body referred to UNCLOS, Biodiversity Convention, the Bonn Convention, as well as Agenda 21. Ironically, it was paragraph 2.22(i) of Agenda 21 Report in combination with Principle 12 of the Rio Declaration, (1992) 30 I.L.M. 874Google Scholar, which led the Appellate Body to conclude that unilateral trade measures that address transboundary environmental problems should not be employed.

100. Article 31(2) of the VCLT refers to the preamble of a treaty as part of “the context for the purpose of the interpretation of a treaty”.

101. Section VI C 1 para. 155.

102. African, Caribbean and Pacific States—European Economic Community (1991) 29 I.L.M. 783.Google Scholar

103. SPS Agreement, Article 3:4.

104. See Principle 15 of the 1992 Rio Declaration on Environment and Development. MEAs that require parties to apply or take account of the precautionary approach or principle include the 1991 Bamako Convention on the Ban of Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa, 30 I.L.M., 1991Google Scholar; the 1992 Helsinki Convention on the Protection and Use of Transboundary Watercourses and Lakes (1992), 31 I.L.M. 1312Google Scholar, Article 2(5)(a); the 1992 OSPAR Convention for the Protection of the Marine Environment of the North-East Atlantic, (1993) 32 I.L.M. 1068Google Scholar, Art. 2(2)(a); the 1992 UN Framework Convention on Climate Change (1992), Article 3, and the 2000 Biosafety Protocol.

105. Part VI, para. 123. The precautionary principle was given greater definition by Judge Laing, of the International Tribunal for the Law of the Sea, in a separate opinion in the Southern Bluefin Tuna (Provisional Measures) Cases (1999) ITLOS 3 & 4.

106. See Principle 16 of the Rio Declaration. See also OECD Council Recommendation C (72) 128, 14 I.L.M. (1975), 236Google Scholar, Recommendation on the Implementation of the Polluter-Pays Principle, C(74) 223 (1974), 14 I.L.M. (1975), 234Google Scholar, OECD Council Recommendation on the Application of the Polluter-Pays Principle to Accidental Pollution, C.89 (Final) (1989), 28 I.L.M. 1320Google Scholar; EC Treaty, Art. 174); OSPAR Convention, Article 2(2)(b). Both the Oil Pollution Preparedness Convention International Convention on Oil Pollution Preparedness, Response and Co-operation (London) 30 11 1990, (1991) 30 I.L.M. 733Google Scholar, and the Industrial Accidents Convention, preamble (UN/ECE Convention on the Transboundary Effects of Industrial Accidents (1992) 31 I.L.M. 1330Google Scholar, preamble, identify the polluter-pays principle as a general principle of international environmental law.

107. The consistency of a BTA and the polluter pays principle was not addressed by the Panel who limited themselves to examining the case before it. It was determined that the GATT Group on Environmental Measures provided a forum to pursue environmental issues that the Panel could not address.

108. 9 Dec. 1996, to be found at http://www.wto.org/wto/legal/34-dimf/wpf.

109. Section V, para. 73.

110. Section VI B para. 85. The Appellate Body also ruled that the Panel did not abuse its discretion by not seeking information or an opinion from the IMF. The relationship with the IMF came up in India—Quantitative Restrictions, para. 149, where the Panel's treatment of information from the IMF, relating to India's balance of payments situation, was challenged. The appellant argued that the Panel failed to assess the views of the IMF independently, thereby delegating their duty to make an objective assessment of the matter. This was dismissed by the Appellate Body since they found the Panel critically assessed those views as well as considered other data and opinions.

111. Section VI, A, 1 (b).

112. Section VI, A, 1 (b) iv para. 266.

113. Dispute settlement was available to Philippines under the SCM Code, pursuant to Articles VI and XXIII of the GATT 1947. Petersmann argues that the Appellate Body, in its reasoning, failed to account for how the legitimate interests of exporting countries, in compliance with Articles I, II and VI of GATT 1994, could be protected during the transitional phase where the SCM Code was not in force. Supra n.5 at 93.

114. Section IV, B, 8, C, 4, para. 236.

115. Section IV, B, 8, C, 4, para. 237. The fact that the EC common market organisation was introduced in 1993, prior to entry into force of GATS, was held not to be relevant by the Appellate Body.

116. Council Directive 81/602/EEC (31 July 1981), Council Directive 88/146/EEC (7 March 1988), Council Directive 88/299/EEC (17 May 1988). These were repealed and replaced with Council Directive 96/22/EC (29 April 1996).

117. Section VII, para. 128.

118. Section E, p.12.

119. Except as otherwise provided under this Agreement or the Multilateral Trade Agreements, the WTO shall be guided by the decisions, procedures and customary practices followed by the CONTRACTING PARTIES to GATT 1947 and the bodies established in the framework of GATT 1947.

120. In Japan—Taxes, para. 6.18, the Panel ruled that since the Panel report in the U.S. Auto Taxes case (United States—Taxes on Automobiles, Report of the Panel, 29 Sept. 1994), (1994) 33 I.L.M. 1397Google Scholar was not adopted, it did not bind the Panel or create any obligation to lend any weight to the decision. Some have argued that unadopted Panel reports are precedents for GATT Panels (see Snape, W. J. III & Lefkovitz, N. B., “Searching for GATT's Environmental Miranda: Are “Process Standards” getting “Due Process?””, (1994) 27 Cornell Int'l L.J. 777Google Scholar), while others have flatly refused such a position. See Charnovitz, S., “Environmental Trade Sanctions and the GATT: An Analysis of the Pelly Amendment on Foreign Environmental Practices”, (1994), 9 Am. U.J. Int'l L. & Policy 751Google Scholar. See also Nichols, supra n.9 at 431.

121. Section E, p.13. J. Jackson limits the significance of the adoption of a Panel report under the GATT to simply a recognition by the parties that the dispute resolution has concluded as opposed to the contracting parties' acknowledgment of the proper interpretation of the GATT 1947. See “World Trade Rules and Environmental Policies: Congruence or Conflict?” (1992) 49 Wash & Lee L. Rev. 1227 at 1253.Google Scholar

122. Article IX:2 of the WTO Agreement. See Articles 3(2) of the DSU and 19:2 of the WTO Agreement.

123. See also Canada—Import Restrictions on Ice Cream and Yogurt, (1985) 36 Supp.BISD 68 at 85Google Scholar, where the Panel held that prior Panel reports can be relevant but are not dispositive.

124. Japan—Taxes at Section E, p.13.

125. E.U. Petersmann “International Trade Law and the GATT/WTO Dispute Settlement System 1948–1996: An Introduction” at 3 in E.U. Petersmann supra n.37.

126. Jackson, J., The World Trading System: Law and Policy of International Economic Relations (2d) (MIT Press, Cambridge: 1997 at 32).Google Scholar

127. 59 Stat. 1055, T.S. No. 993.

128. It is generally considered that previous decisions by international tribunals lack formal precedential effect. See Brownlie, I., Principles of Public International Law at 21 (5th ed.), (New York: Clarendon Press; 1998).Google Scholar

129. J. Klabbers, supra n.26, states that Panel reports under the GATT 1947 had no formal precedential value but in practice, they did serve as precedent, often being referred to in a number of Panel proceedings and relied on by the Panels themselves, “Jurisprudence in International Trade Law: Article XX of GATT” (1992), 26 Journal of World Trade 63 at 65.Google Scholar

130. (1997), WT/DS33/AB/R hereafter Shirts and Blouses.

131. Section IV, E 3.

132. Section G, p.17. The Appellate Body also applied the test in Japan Taxes for determining whether a product is “directly competitive or substitutable” under the second sentence of Article III:2. Section H, p.18.

133. Japan Taxes, Section E.

134. Desiccated Coconut, Panel report (WT/DS22/R) at Section VI, A, I (b) (iii) para. 258.

135. WT/DS56/R.

136. DS38/R, 11 Feb. 1994. (This was a pre-WTO Panel report dealing with the bananas import dispute over the EU regime).

137. DS56/AB/R at Section IV A, para. 44 (hereinafter referred to as Footwear).

138. In Canada Periodicals, the Appellate Body ruled that the position expressed in the EEC Oilseeds, adopted 25 01 1990, BISD, 37S/86Google Scholar, that subsidies not paid directly to producers are not made exclusively to them under Article III:(8)(b), was merely obiter dicta. By contrast, the Appellate Body concurred with the Panel in United States—Malt Beverages, adopted 19 06 1992, BISD 39S/206Google Scholar, that permissible subsidies under Article III:8(b) of the GATT 1994 were limited to payments, which involve the expenditure of revenue by a government.

139. Section IV, para. 109.

140. Section IV, p.14, See also TRIPs, section IV, para. 74.

141. Article XXIII(a) allows a party to bring forward a complaint when any provision of the WTO Agreements is violated.

142. Shirts and Blouses, Section IV, p.13.

143. Article 3:8 of the DSU.

144. The Appellate Body in Canadian Periodicals ruled, for instance, that there was a “well-established” principle that the trade effects flowing from differential tax treatment between imported and domestic products do not necessarily have to be shown in order for the measure to be found inconsistent with Article III of GATT 1994.

145. Panel Report on United States—Taxes on Petroleum and Certain Imported Substances, adopted on 17 06 1987, BISD 34S/136.Google Scholar

146. Section IV, C, 6 (d), para. 253.

147. 6th Edition, West Publishing (1991).

148. Raymond Guillien and Jean Vincent, Dalloz (1981).

149. Part IV, B.2. para. 6.38.

150. Due to the differing institutional capacities of WTO members, this problem is more acute in developing and transitional countries.

151. Para. 6.65, affirmed by the Appellate Body at part IV, B. 62.

152. These are permitted under Article XXIII(1)(b), GATT 1947, which allows a party to assert a nullification or impairment of a benefit regardless of there being any violation of the agreement. The burden of proof would be allocated in a similar way to the complainant in cases of a situational complaint pursuant to Article XXIII(1)(c).

153. United States—Restrictions on the Importation of Sugar and Sugar-Containing Products Applied Under the 1955 Waiver and Under the Headnote to the Schedule of Tariff Concessions, (1990), 37 Supp.BISD 228Google Scholar, Japan—Trade in Semi-Conductors, (1988), 35 Supp.BISD 116.Google Scholar

154. (1979) 26 Supp. BISD 210. Nichols, supra n.8 at 413, notes that there is an absence of jurisprudence demonstrating customary practice in non-violation disputes.

155. EC—Hormones para. 104.

156. Ibid. The Appellate Body, in Shirts and Blouses, determined that Article 6 of the ATC was a fundamental part of the rights and obligations of WTO Members and consequently a party claiming a violation of a provision of the WTO Agreement by another member had to assert and prove its claim. India was required to put forward evidence and legal arguments sufficient to demonstrate that the safeguard by U.S. was inconsistent with obligations assumed by the U.S. under Articles 2 and 6 of ATC. The onus then shifted to U.S. to bring forward evidence and disprove the claim. See also LAN Computers, part VI, para. 103.

157. Canada—Administration of the Foreign Investment Review Act, BISD 30S/140 (adopted 7 02 1984)Google Scholar. The Panel report in that case represented the first dispute where the burden of proof was allocated to the party claiming the exception. In that case, Canada was required to demonstrate that the purchase undertakings that foreign investors were required to enter into to ensure preferential buying of Canadian products, were necessary to secure compliance with the Foreign Investment Review Act, and therefore in accordance with Article XX(d) of the GATT 1947.

158. Article XI deals with quantitative restrictions. The Panel in Canada—Import Restrictions on Ice Cream and Yogurt, (1989) 36 Supp.BISD 68 at 85Google Scholar, refused to reverse the burden of proof under the requirements of Article XI: 2(c)(i) to the claiming State because it would seriously affect the balance of tariff concessions that were negotiated among the contracting parties.

159. Shirts and Blouses, Section IV, p.16.

160. Part IV. Klabbers supra n.26 at 89 notes that although there was a consensus that the burden of proof rests on the party invoking Article XX, it was still unclear in GATT jurisprudence where the onus of proof rests with respect to the various elements of Article XX.

161. Reformulated Gasoline, Section IV, p.21. The Appellate Body in Shrimp-Turtle disagreed with the Panel's analysis of Article XX, where the respondent would be required to justify its measure under the chapeau before asserting that its measure fell under the particular exception. Part VI, para. 122.

162. WT/DS90/AB/R, adopted 22 Sept. 1999, para. 143, (hereinafter India—Quantitative Restrictions).

163. This was found to occur in the Japan—Measures Affecting Agricultural Products (WT/DS76/AB/R), where the Appellate Body overruled the Panel's ruling concerning an issue that was not claimed by the United States. As a result, the claimant did not initially make out a prima facie case (Section VI, A para. 129).

164. According to the Appellate Body in TRIPs, with respect to fact-finding, the dictates of due process could better be served if Panels had standard working procedures that provided for appropriate factual discovery at an early stage in the Panel proceeding, Section VIII, para. 95.

165. United States—Imposition of Anti-dumping Duties on Imports of Fresh and Chilled Atlantic Salmon from Norway, GATT Doc. ADP 87 (adopted 27 April 1994), EC Anti-dumping Duties on Audio Tapes in Cassettes Originating in Japan, (unadopted).

166. Article 2.5.

167. Part X, B. para. 170. However, the Appellate Body affirmed that, where a WTO member chooses a measure that is not based on an international standard, there must be evidence of a risk assessment pursuant to Article V:1 of the SPS Agreement. For application of the similar allocation of the burden of proof to subsidies cases under the SCM Agreement, see Brazil—Aircraft, section VI, paras. 139–141.

168. Nichols, supra n.9 at 403.

169. European Communities—Refunds on Exports of Sugar, (1979), 26 Supp.BISD 290Google Scholar. Canada—Administration of the Foreign Investment Review Act, (1984) 30 Supp.BISD 140Google Scholar. European Economic Community—Payments and Subsidies Paid to Processors and Producers of Oilseeds and Related Animal-Feed Proteins, (1990), 37 Supp.BISD 86Google Scholar. Herring supra. One notable exception may be seen in Dessert Apples, at 124, where the Panel construed its terms of reference to instill authority to examine the matter in light of all relevant provisions, including those related to its interpretation and implementation such as the legitimate expectations created by the adoption of the report as well as other GATT 1947 practices, adopted Panel reports and the particular circumstances of the complaint.

170. United States—Denial of Most-Favoured-Nation Treatment as to Non-Rubber Footwear from Brazil, 39 Supp.BISD 128.Google Scholar

171. Tuna-Dolphin I. Section 337 of the Tariff Act of 1930 (1989), 36 Supp.BISD 345.Google Scholar

172. Tuna-Dolphin I, Tuna-Dolphin II, Norway—Procurement of Toll Collection Equipment for the City of Trondheim 40 Supp.BISD 319 (1992).Google Scholar

173. United States—Taxes on Automobiles, 33 I.L.M. 1397 (1994)Google Scholar, United States—Section 337 of the Tariff Act of 1930, 36 Supp.BISD 345 (1989)Google Scholar. Tuna-Dolphin I, European Economic Community—Regulation on Imports of Parts and Components, 37 Supp.BISD 132 (1990).Google Scholar

174. In a footnote, the Appellate Body referred to the Dessert Apples, where the Panel determined that the impugned measures were in violation of Article XI:1 of the GATT 1947 and not justified by Article XI:2(c)(i) or (ii). No further examination of the administration of the measures was required in that dispute but the Panel deemed it appropriate to review the administration of the measures in respect of Article XIII in light of the questions of great practical interest that were raised by both parties. See also European Economic Community—Restrictions on Imports of Apples, Complaint by the United States, (1989) 36 Supp.BISD 135Google Scholar; Decision on Improvements to the GATT Dispute Settlement Rules and Procedures of 12 April 1989, 36 Supp.BISD 61 (1989).Google Scholar

175. Section VI, p.21.

176. Poultry, at section VIII, para. 135.

177. Ibid.

178. Ibid. It must be kept in mind that a partial resolution of a dispute, by not responding to all the necessary claims, can create false judicial economy and therefore be in violation of Article 3:7. In Australia—Measures Affecting Importation of Salmon, WT/DS18/AB/R Section IV, E1, para. 223–224, the Panel's failure to make any determinations on Article 5.5 and 5.6 of the SPS Agreement, potentially resulted in the disability of the DSB to make sufficiently precise recommendations to allow for compliance.

179. By contrast, the Panel proceedings are not subject to any procedural rules other then general guidelines stated in Appendix 3 to the DSU. This was something that was to be a subject of discussion at the Seattle Ministerial Conference as agreed in the Singapore Ministerial Declaration, adopted on 13 Dec. 1996, WT/MIN(96)/DEC, 18 Dec. 1996, para. 9. The Appellate Body in Bananas recommended that Panels develop standard working procedures (para. 144).

180. Reformulated Gasoline at para II.C.

181. Charnovitz, supra n.83 at 200. J. P. Gaffney asserts that the judicial activism is engaged by the Appellate Body because of its concern for the integrity of the dispute settlement system. “Due Process in the World Trade Organization: The Need for Procedural Justice in the Dispute Settlement System” 14 (1999) Am. Univ. Int'l L. Rev. 1173 at 1192.Google Scholar

182. Desiccated Coconut, Section VI, p.21. The European Community submitted that a request for an establishment of a Panel is to include: (a) the infringing measure; (b) the obligation under the WTO Agreement which is alleged to be violated; and (c) a brief explanation of the way in which the measure infringed the legal obligations. The Appellate Body did not specifically address this point but these arguments appear to have been recognised by the Appellate Body in the Korea—Milk, infra at para. 235.

183. Article 6:2 of the DSU.

184. Desiccated Coconut, Section VI, p.21, Guatemala—Anti Dumping, section V, paras. 86, 87.

185. Bananas at para. 143, TRIPS at section VIII, para. 91.

186. Bananas, Ibid, Korea—Milk, infra n.245 at para. 143.

187. TRIPs, at section VIII, para. 92.

188. Ibid at para. 142.

189. Korea—Milk, WT/DS98/AB/R at Section IV, para. 120.

190. Ibid, para. 139. The Appellate Body added that a claim is distinguishable from an argument, which is adduced by a party to demonstrate the infringement. The distinction was applied to uphold the Panel's consideration of a Korean report on the challenged safeguard measure, which was not included in the request for a Panel. Para. 140.

191. TRIPs at section VIII, para. 90

192. Section VI, para. 125.

193. Ibid., at para. 128.

194. EC Bananas, section IV (a) 2, para. 142.

195. Korea—Milk, section IV, para. 131.

196. Section IV, para. 67.

197. Section IV, para. 70.

198. Section V, para. 89.

199. (1997) WT/DS57/AB/R found at http://www.wto.org/wto/dispute/ab3.htm.

200. Section III B, para. 95.

201. See, EC Bananas, section IV(a) 4 at 152.

202. Section VI, para. 123.

203. Section IX (b) para. 156.

204. One prescribed adverse inference is in the SCM Agreement, which allows a Panel to conclude that the complaining party suffered serious prejudice from an actionable subsidy, if the presumption of prejudice is not rebutted by the subsidising party (Art. 6).

205. Canada—Measures Affecting the Export of Civilian Aircraft WT/DS70/AB/R (hereinafter referred to as Canada—Aircraft, Section VIII, 1(c), para. 202. The general practice referred to was supported by international law jurisprudence such as the Corfu Channel case (1949, I.C.J. 4, at 18); Case Concerning Military and Paramilitary Activities In and Against Nicaragua, 1986 I.C.J. 14, pp.82–86Google Scholar, paras. 152, 154–156; and Case Concerning the Barcelona Traction, Light and Power Company, Limited, 1970 I.C.J. 3, p.215, para. 97.Google Scholar

206. For comparison, see the exercise of the Panel's authority under Article 9.3 of the DSU in Beef Hormones, which allows a party to harmonise disputes where more than one Panel examines the same complaints. The Panel granted third party status to the U.S. and Canada in each other's claims.

207. African, Caribbean and Pacific countries.

208. DSU, Article 10 and Appendix 3. Article 10 affords third parties an opportunity to be heard and make written submissions (Art. 10(2)) and have access to the disputants' submissions (Art. 10(3)). Third parties were permitted to participate in Panel proceedings under GATT Panel practice, including the right to submit written comments to Panels and to make oral arguments. (United States—Customs Users Fees, 35 Supp.BISD 245 (1988)Google Scholar, Panel on Japanese Measures on Imports of Leather, 31 Supp.BISD 94 (1984)Google Scholar, Japan—Trade in Semi-Conductors, 35 Supp.BISD 116 (1988)Google Scholar. Steger and Hainsworth, supra n.6 at 21, add that at the time of negotiation of the DSU, it was not anticipated that several cases would involve multiple complainants and that the members would use the provisions of Article 10 to participate as third parties. Steger, supra n.6 at 7 notes that the easier access for third parties to a dispute will create a greater problem for finding Panellists who are acceptable to all of the parties to a dispute.

209. The EC argued that the U.S. did not have an effective WTO remedy. With no effective remedy and absent any authority of the Panel to issue a declaratory judgment or advisory opinion in the WTO dispute settlement system, the EC claimed that the U.S. was unable to raise a “goods” issue because it had no legal right or interest therein.

210. See Appellate Body, Bananas at paras. 132,133. The I.C.J. established a general rule in international law that a complaining party must have a legal interest in order to bring a case. See South West Africa Cases, (Second Phase), (1966) I.C.J.R. 4Google Scholar, Case Concerning the Barcelona Traction, Light and Power Company Limited (Second Phase), (1970) I.C.J.R. 4Google Scholar, Mavrommatis Palestine Concessions Case, (1925) Series A, No. 2, 1, S.S. “Wimbledon” (1923) Series A, No. 1, 1 (P.C.I.J.), (Case Concerning the Northern Cameroon (1963), I.C.J.R. 4.Google Scholar

211. The Appellate Body cautioned that the factors supporting the U.S. standing was not necessarily dispositive in another case. Section IV, A 2, para. 138.

212. Section I, A. para. 12.

213. For a more detailed discussion of the role of outside counsel in the WTO dispute settlement system, see Bronkers, Marco C.E.J. and Jackson, John H., Editorial Comment: Outside Counsel in WTO Dispute Processes, (1999) 2 J. Int'l Econ. L. 155.CrossRefGoogle Scholar

214. Article 27(2) recognises the need to provide additional legal advice and assistance in respect of dispute settlement to developing country members and requires the Secretariat to make available a qualified legal expert from the WTO technical co-operation services to any requesting developing country members. Some developed WTO member countries have recently provided financial support for a WTO Legal Advisory Centre for developing countries, which will be based in Geneva.

215. Indonesia—Certain Measures Affecting the Automobile Industry, WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R, (2 July 1998), para. 14.1.

216. Section 301 of the US Trade Act allows a U.S. commercial interest, that is harmed by illegal or unfair actions, to petition a U.S. trade representative to commence an investigation. Similarly, under the EC New Commercial Policy, a firm can force the EC to react to obstacles to trade that is adopted by a third country that causes injury or adverse trade effects. The dispute between Japan and the U.S. (Japan—Measures Affecting Consumer Photographic Film and Paper WT/DS44/R), was effectively a dispute between two large camera companies, although both countries were seeking a longer term interest.

217. In United States—Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, WT/DS138/AB/R (10 May 2000), (hereinafter US—Countervailing Duties on Steel Products), the American Iron and Steel Institute and the Speciality Steel Industry of North America submitted amicus briefs to the Appellate Body, which were accepted but were not found to be necessary for the Appellate Body's deliberations.

218. Article 13 empowers a Panel to seek information and technical advice from any individual or body which it deems appropriate. As part of this authority, they can request an advisory report from an expert review group with respect to a factual issue. A similar power was found to exist for the apppellate body in US—Countervailing Duties on Steel Products, Section III, para. 42.

219. Shrimp-Turtle, section III, paras. 88–91. The amicus brief submitted by the Center for Marine Conservation and the Center for International Environmental Law was attached to the U.S. claim, while the WWF brief was not at the Panel stage. However, there is evidence that the WWF brief was read by the Panel since the presentation of the evidence in the Panel report was based on the conservation facts adduced by the WWF experts. The Appellate Body of course determined that it could look at the submissions and the U.S. enabled the two briefs to be presented at that stage.

220. Section IX, A, para. 147.

221. Canada-Aircraft at Section VII, 1, para. 202.

222. Para. 84. This would include the freedom to decide not to consult with the IMF. The ruling was reaffirmed by the Appellate Body in Shrimp-Turtle, which added that a Panel can determine the need for the information, ascertain its acceptability and relevancy and then decide what weight to ascribe to it. See also Beef-Hormones, where the Panel's discretion to determine whether an expert review group is necessary or appropriate under the SPS Agreement was recognised by the Appellate Body. (Section IX, A, para. 147.)

223. This can also compensate for the real possibility that the complaining party is unable to obtain all relevant facts needed to support its case and the defending party is often reluctant to disclose all relevant facts, especially those that may weaken its defence. J. Cameron and S. J. Orava, GATT/WTO Panels Between Recording and Finding Facts: Issues of Due Process, Evidence, Burden of Proof, and Standard of Review in GATT/WTO Dispute Settlement (unpublished paper) (1999) at 9 [soon to be published in F. Weiss, Improving WTO Dispute Settlement Procedures, Cameron May 2000.

224. Para. 177.

225. See Tiete, C., “Voluntary Eco-Labeling Programmes and Questions of State Responsibility in the WTO/GATT Legal System” (1995) 29 (5) Journal of World Trade Law 123 at 148.Google Scholar

226. (L/6253—35S/163) (2 Feb. 1988).

227. If a government effectively influences and controls private activity, it loses the element of autonomy and is therefore an act of State. See Tietje, Ibid at 151. See also the GATT 1947 Panel report, Japan Trade in Semiconductors, adopted 4 May 1988, 5th Supp., BISD 1986Google Scholar, where the Panel held that third party monitoring under the Agreement Concerning Trade in Semiconductor Products (2 Sept. 1986, 25 I.L.M. 1409Google Scholar), constituted an act of state imposing a quantitative restriction contrary to Article XI:1.

228. This part of the Panel's ruling is good law as Argentina refrained from appealing this part of the ruling. Section VI 3, para. 6.68.

229. The Panel referred to Free Zones of Upper Savoy and the District of Gex, 1932, P.C.I.J., Series A/B, case No. 46, p. 167, in n.198.Google Scholar

230. See North Sea Cases, (1969) I.C.J. Rep. 26Google Scholar, Temple of Preah Vihear, (1962) I.C.J. Rep. 143Google Scholar, Gulf of Maine Case, (1984) 309Google Scholar. Claims based on acquiescence and estoppel were accepted in a 1990 GATT 1947 arbitration award on Canada/EC Article XXVIII Rights, where Canada was ruled to have relinquished its rights under the GATT 1947, remaining silent during the negotiation of a bilateral wheat agreement. (GATT BISD 37S/80.)

231. (1950) BISD 3S/77-German Import Duties on Starch. See also EEC—Members Import Regimes for Bananas, 1993.

232. The principle of estoppel was submitted to the Panel in the Shrimp-Turtle dispute. It was advanced in the WWF amicus brief to preclude the complainant States from challenging the U.S. law prohibiting the imports of shrimp captured without Turtle Excluder Devices. It was submitted that, under the principle of nullus commodum capere de sua injuria propria, (no man can be allowed to take advantage of his own wrong), the complainant States, who are in violation of their international commitments to protect turtles and therefore in breach of international law, are denied redress under another remedial regime such as the WTO. Neither the Panel nor the Appellate Body addressed this argument.

233. Petersmann, supra n.5 at 178; Certain German Interests in Polish Upper Silesia, (1926) P.C.I.J., Ser A, no. 7, 30Google Scholar. See also Kiss, A., “L'Abus de Droit en Droit International”, (1953) Recueil des Cours.Google Scholar

234. Ibid.

235. This is a quote from B. Cheng, General Principles of Law as applied by International Courts and Tribunals (Stevens and Sons, Ltd. 1953) referred to in the Shrimp-Turtle Appellate Body report. The doctrine was not applied directly by the Appellate Body but it did underline its premise that a misuse of an exception of Article XX occurs where it is exercised in an arbitrary or unjustifiable manner.

236. The Australian Subsidy on Ammonium Sulphate, 3 04 1950, BISD II/188.Google Scholar

237. Case Concerning Elettronica Sicula S.p.A. (ELSI) I.C.J. Rep. 1989, 15.Google Scholar

238. Petersmann, E.U., The GATT/WTO Dispute Settlement System. International Law, International Organizations and Dispute Settlement (London: Kluwer Law International, 1997) at 242.Google Scholar

239. One dispute where the principle appeared was the Grey Portland Cement case, (GATT Doc. ADP/82), where the Panel noted that there is nothing in the GATT 1947 explicitly requiring the exhaustion of administrative remedies.

240. Kuijper, supra n.20 at 65.

241. Article III.

242. Article IV.

243. Article XIII.

244. Articles 41–50, 59.

245. Article XX.

246. The ELSI case, supra n.293, noted that the exhaustion principle cannot be implicitly dispensed with by States but must be specifically excluded by a treaty, which none of the WTO Agreements appear to do.

247. Both the Beef Hormones, Brazil-Aircraft and Bananas disputes resulted in sanctions imposed against the European Union in light of their failure to comply with their respective decisions.

248. Article 21:1 of the DSU.