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Breaking the Impasse of Appointing Members of the WTO Appellate Body: A Perspective from International Institutional Law
Published online by Cambridge University Press: 18 February 2025
Abstract
At the 13th Ministerial Conference, WTO members reaffirmed their commitment to restoring a fully functioning dispute settlement system by 2024. By the end of the year, some progress had been made, but an agreement remains elusive. The re-election of Donald Trump as US President adds further uncertainty to these efforts. Against this background, this article re-examines the proposal for the General Council to appoint Appellate Body members through majority voting. It argues that customary rules of interpretation applicable to the constituent instruments of international organizations justify the legality of a vote in the General Council to support the effective functioning of the WTO. To address WTO members' concerns about the negative impact on consensus-based decision-making and the loss of leverage for reforms, this article suggests a General Council decision to appoint fewer than seven Appellate Body members. While not addressing all challenges facing the dispute settlement system, the proposal would bring more certainty to the early recovery of the system.
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- Copyright © The Author(s), 2025. Published by Cambridge University Press on behalf of The Secretariat of the World Trade Organization
References
1 Article 2.4 of the Dispute Settlement Understanding (DSU) provides that, ‘[w]here the rules and procedures of this Understanding provides for the DSB to take a decision, it shall do so by consensus’, ‘Understanding on Rules and Procedures Governing the Settlement of Disputes’, 15 April 1994, 1869 UNTS 401, 33 ILM 1226, Art. 2.4.
2 MC12 Outcome Document, WT/MIN(22)/24, WT/L/1135, 22 June 2022.
3 Ministerial Decision on Dispute Settlement Reform, WT/MIN(24)/37, WT/L/1192, 4 March 2024.
4 Draft Ministerial Decision on Dispute Settlement Reform, WT/MIN(24)/11, 16 February 2024.
5 For the most recent news on dispute settlement reform, see ‘Facilitator Urges Members to be Practical, Flexible as Dispute Reform Talks Intensify’, 21 November 2024, www.wto.org/english/news_e/news24_e/refrm_22nov24_e.htm (assessed 9 December 2024).
6 This was evident from the conclusion of the informal negotiation process prior to MC13, see Special Meeting of the General Council, JOB/GC/385, 16 February 2024, 29. Annex 1 of the document contains the ‘Consolidated Text Referred to in Mr. Molina's Report’, where a draft ministerial decision was presented. The only section that remained unaddressed is ‘Title III Appeal/Review Mechanism’. For a detailed examination of the draft ministerial decision, see P. Van den Bossche, ‘The Uncertain Future of WTO Dispute Settlement: An Appraisal of the February 2024 Consolidated Text Resulting from the Molina Process on Dispute Settlement Reform’, WTI Working Paper No. 2/2024, 2 September 2024.
7 See e.g. Minutes of the Heads of Delegation Meeting, WT/GC/DSR/1, 4 June 2024, 22. The US representative stated that ‘we would like to explore further with delegations whether appeal/review is a necessary feature of a system that supports parties in resolving their disputes … We do not view a standing Appellate Body as the only way of achieving those objectives’.
8 A. Williams (2024) ‘Donald Trump Says He Will Hit China, Canada and Mexico with New Tariffs’, Financial Times, 26 November 2024, www.ft.com/content/8b986532-df96-41d0-a13b-72fa7987c9d4?shareType=enterprise&shareId=f1abc3fb-4120-425f-866e-7d47f598bac3 (assessed 9 December 2024).
9 Thanks to one reviewer for pointing this out. Although Article VII:3 of the AEWTO provides that ‘[t]he General Council shall adopt [] the annual budget estimate by a two-thirds majority comprising more than half of the Members of the WTO', the decision has been adopted by consensus, see M.E. Footer (2006) An Institutional and Normative Analysis of the World Trade Organization, 302. The US has been the single largest contributor to budget, with the EU not subject to contributions, www.wto.org/english/thewto_e/secre_e/budget_e.htm (assessed 9 December 2024).
10 See Kuijper, P.J. (2018) ‘From the Board: The US Attack on the WTO Appellate Body’, Legal Issues of Economic Integration 45(1), 1Google Scholar. For an earlier exposition of his idea, see P.J. Kuijper., ‘What to do about the US Attack on the Appellate Body?’, International Economic Law and Policy Blog, 15 November 2017, https://ielp.worldtradelaw.net/2017/11/guest-post-from-pieter-jan-kuiper-professor-of-the-law-of-international-economic-organizations-at-the-faculty-of-law-of-th.html (assessed 9 December 2024).
11 See J. Hillman (2018) ‘Three Approaches to Fixing the World Trade Organization's Appellate Body: The Good, the Bad and the Ugly?’, Institute of International Economic Law, at 11–14, www.law.georgetown.edu/wp-content/uploads/2018/12/Hillman-Good-Bad-Ugly-Fix-to-WTO-AB.pdf (assessed 9 December 2024).
12 See Petersmann, E. (2019) ‘How Should WTO Members React to Their WTO Crises?’, World Trade Review 18(3), 503CrossRefGoogle Scholar. For earlier expositions of his idea, see Proposals by Panel Member Prof. E. Petersmann, Conférence sur la Réforme de l'OMC, 15 November 2018, www.tresor.economie.gouv.fr/Articles/4c69c305-4f37-45f5-aa28-09a6aab19768/files/398e28fd-73d7-42bc-85fd-9267bb0289c5 (assessed 9 December 2024); E. Petersmann, ‘How Should WTO Members Respond to the WTO Appellate Body Crisis?’, International Economic Law and Policy Blog, 13 December 2018, https://worldtradelaw.typepad.com/ielpblog/2018/12/ulli-petersmann-on-how-should-wto-members-respond-to-the-wto-appellate-body-crisis.html (assessed 9 December 2024).
13 For example, Peter Van den Bossche also discussed this option briefly, see P. Van den Bossche, ‘The Demise of the WTO Appellate Body: Lessons for Governance of International Adjudication?’, WTI Working Paper No.02/2021, 28 October 2021, 12. But he seemed to view this option as unrealistic and did not mention it later when discussing potential solutions for reviving the dispute settlement system, see P. Van den Bossche, ‘Can the WTO Dispute Settlement System be Revived?: Options for Addressing a Major Governance Failure of the World Trade Organization’, WTI Working Paper No.03/2023, 4 October 2023.
14 See Vidigal, G. (2021) ‘Loophole or Fire Alarm? The Consensus Requirement for the Appointment of Appellate Body Members and the Institutional Design of the WTO’, Legal Issues of Economic Integration 48(1), 1CrossRefGoogle Scholar. For earlier exposition of this idea, see Vidigal, G. (2019) ‘Living without the Appellate Body: Multilateral, Bilateral and Plurilateral Solutions to the WTO Dispute Settlement Crisis’, Journal of World Investment & Trade 20, 862, 873CrossRefGoogle Scholar; G. Vidigal, ‘Appointing Appellate Body Members by Majority Would Undermine, Not Preserve the Rule of Law’, International Economic Law and Policy Blog [hereinafter Vidigal's Blog], 31 July 2020, https://ielp.worldtradelaw.net/2020/07/guest-post-appointing-appellate-body-members-by-majority-would-undermine-not-preserve-the-rule-of-la.html (assessed 9 December 2024).
15 See Gao, H. (2021) ‘Finding a Rule-Based Solution to the Appellate Body Crisis: Looking Beyond the Multiparty Interim Appeal Arbitration Arrangement’, Journal of International Economic Law 24, 534CrossRefGoogle Scholar.
16 Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, 1867 UNTS 154, 33 ILM 1144.
17 The terms of two of the remaining three members, Ujal Singh Bhatia (India) and Thomas R. Graham (United States) expired on 10 December 2019.
18 Article 16.4 of the DSU provides that ‘[i]f a party has notified its decision to appeal, the report by the panel shall not be considered for adoption by the DSB until after completion of the appeal’.
19 For a list of cases in which notifications of appeal have been made, www.wto.org/english/tratop_e/dispu_e/appellate_body_e.htm#fnt-1 (assessed 9 December 2024).
20 See Office of the United States Trade Representative, Ambassador R.E. Lighthizer, Report on the Appellate Body of the World Trade Organization, February 2020, https://ustr.gov/sites/default/files/Report_on_the_Appellate_Body_of_the_World_Trade_Organization.pdf (assessed 9 December 2024).
21 See Communication from the European Union, China, Canada, India, Norway, New Zealand, Switzerland, Australia, Republic of Korea, Iceland, Singapore, and Mexico to the General Council, WT/GC/W/752, 26 November 2018; Communication from the European Union, China, and India to the General Council, WT/GC/W/753, 26 November 2018.
22 See Statements by the United States at the Meeting of the WTO Dispute Settlement Body, 18 December 2018, https://geneva.usmission.gov/wp-content/uploads/sites/290/Dec18.DSB_.Stmt_.as-deliv.fin_.public.pdf (assessed 9 December 2024).
23 Report by the Facilitator, H.E. Dr. David Walker (New Zealand) and Draft Decision on the Functioning of the Appellate Body (WT/GC/W/791), JOB/GC/225, 9 December 2019. For the opposition of the US, see Ambassador D. Shea, ‘Matters Related to the Functioning of the Appellate Body’, 9 December 2019, https://geneva.usmission.gov/2019/12/09/ambassador-shea-statement-at-the-wto-general-council-meeting/.
24 Currently 54 (including 27 EU members) WTO members are parties to the MPIA, https://wtoplurilaterals.info/plural_initiative/the-mpia/ (accessed 9 December 2024).
25 See Hillman, supra n. 11, at 9.
26 Gao, supra n. 15, at 543. See also O. Starshinova (2021) ‘MPIA a Solution to the WTO Appellate Body Crisis?’, Journal of World Trade 55, 787, 801–802. He identified six drawbacks of the MPIA.
27 See Special Meeting of the General Council, supra n. 6, paras. 1.13–1.14.
28 See Members Welcome Appointment of Facilitator for WTO Dispute Settlement Reform, 26 April 2024, www.wto.org/english/news_e/news24_e/dsb_26apr24_e.htm (assessed 9 December 2024).
29 Facilitator Urges Members to be Practical, supra n. 5.
30 Van den Bossche, The Demise of the WTO Appellate Body, supra n. 13, 3.
31 For the earliest proposal on this matter, see Proposal on Appellate Body Appointments by Argentina et al., WT/DSB/W/609, 10 November 2017. Until now, 26 revised versions of the proposal have been issued with the number of co-sponsors increasing in each version, except for the versions in April and June 2019. See WT/DSB/W/609/Rev.11, 14 June 2019, and WT/DSB/W/609/Rev.10, 16 April 2019.
32 See Proposal on Appellate Body Appointments by Argentina et al., WT/DSB/W/609/Rev.26, 6 September 2023.
33 See Proposed Agenda of Dispute Settlement Body, WT/DSB/W/738, 21 November 2024.
34 See AEWTO, Art. IV:1. This provision endows the MC with ‘the authority to take decisions on all matters under any of the Multilateral Trade Agreements’.
35 See ibid., Art. IV:2. This provision provides that ‘[i]n the intervals between meetings of the Ministerial Conference, its functions shall be conducted by the General Assembly’.
36 For example, a special meeting of the General Council was convened in November 2000 to discuss the AB's handling of amicus curiae briefs, see WT/GC/M/60, 23 January 2001.
37 See also Meeting of the Dispute Settlement Body, JOB/DSB/9, 19 March 2024, at para. 5. Chairman of the DSB reported that ‘[d]uring the consultations, most Members stated that they consider the General Council as the appropriate forum to oversee the DS process’.
38 See Kuijper, supra n. 10, at 10.
39 Ibid., at 8.
40 Ibid., at 9.
41 Ibid., at 9.
42 Ibid., at 10
43 Ibid., at footnote 38.
44 Hillman, supra n. 11, at 13. Different from Kuijper, Hillman observed that ‘the conflict stems from the United States’ use of the consensus rule in the DSU to terminate the existence of the Appellate body’ and the WTO's mandate to administer the rules of the DSU.
45 Ibid., at 11.
46 Petersmann, supra n. 12, at 507.
47 Ibid., at 514.
48 Ibid., at 514–515.
49 Hillman, supra n. 11, at 13.
50 Petersmann, supra n. 12, at 514.
51 Vidigal, supra n. 14, at 18.
52 Ibid., at 9.
53 Ibid., at 10.
54 Ibid., at 10.
55 Ibid., at 10–11.
56 Ibid., at 11.
57 Ibid., at 21.
58 Ibid., at 12–13.
59 Ibid., at 13.
60 Ibid., at 14–17.
61 Gao, supra n. 15, at 545.
62 Ibid., at 545–546. Article IV:3 of the AEWTO provides that, ‘The General Council shall convene as appropriate to discharge the responsibilities of the Dispute Settlement Body provided for in the Dispute Settlement Understanding.’ On this point, Van den Bossche expressed different views. He noted that, according to this provision, ‘whenever the General Council discusses dispute settlement matters it convenes as the DSB (and not as the General Council) and decisions can only be taken by consensus’. However, he observed that the MC could legally decide on this matter, although such an outcome is unlikely in practice, see Van den Bossche, The Demise of the WTO Appellate Body, supra n. 13, 12.
63 Ibid., at 546.
64 Ibid., at 546.
65 Ibid., at 546.
66 Ibid., at 546.
67 Ibid., at 546.
68 For Vidigal's post and comments by other scholars, see Vidigal's Blog, supra n. 14.
69 Ibid., at Reply 6 August 2020 at 10:53 am.
70 See e.g. WTO, United States – Standards for Reformulated and Conventional Gasoline – Report of the Appellate Body, 20 May 1996, WT/DS2/AB/R, at 16–17; WTO, Japan – Taxes on Alcoholic Beverages – Report of the Appellate Body, 1 November 1996, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, at 104, n. 17; WTO, United States – Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada – Report of the Appellate Body, 17 February 2004, WT/DS257/AB/R, para. 59. For further discussion on the interpretative practice of the Appellate Body, see H.R. Fabri and J. Trachtman, ‘Final Report on the Jurisprudence of the WTO DSB’, ILA Study Group on the Content and Evolution of the Rules of Interpretation, 29 November–13 December 2020.
71 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, 8 July 1996, ICJ Reports (1996), 74, para. 19.
72 Ibid., at 75, para. 19.
73 See C. Brolmann (2012) ‘Specialized Rules of Treaty Interpretation: International Organization’, in D.B. Hollis (ed.), The Oxford Guide to Treaties, 507.
74 Article 5 of the VCLT provides that ‘[t]he present Convention applies to any treaty which is the constituent instrument of an international organization … without prejudice to any relevant rules of the organization’.
75 See Brolmann, supra n. 73, at 508.
76 See AEWTO, Arts. IV and VI.
77 See ibid., Art. VIII:1-4.
78 See ibid., Art. VIII:5.
79 Compared with the latter organs which employ at least several thousand staff members, the number of staff at the WTO Secretariat is approximately 620, www.wto.org/english/thewto_e/secre_e/intro_e.htm (assessed 9 December 2024).
80 See e.g. ‘Whose WTO Is It Anyway?’, www.wto.org/english/thewto_e/whatis_e/tif_e/org1_e.htm (assessed 9 December 2024).
81 P.J. Kuijper, (2009) ‘WTO Institutional Aspects’, in D. Bethlehem et al. (eds.), The Oxford Handbook of International Trade Law, 81. See also Footer, supra n. 9, 328. She referred to the WTO as a ‘sui generis’ organization.
82 For example, International Whaling Commission is also regarded as a global international organization, but its size and power are much smaller compared to the WTO. For a definition of international organizations, see H.G. Schermers and N.M. Bloker (2018) International Institutional Law: Unity within Diversity, 40.
83 R.R. Churchill and G. Ulfstein (2000) ‘Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law’, American Journal of International Law 94(4), 623, 634. See also G.F. Arribas (2020) ‘Rethinking International Institutionalisation through Treaty Organs’, International Organizations Law Review 17, 479–481.
84 J. Jackson (2006) Sovereignty, the WTO and Changing Fundamentals of International Law, at 98. He mentioned examples like the GATT's reimbursement of the ICITO for the costs of the secretariat, the establishment of a Council without any explicit treaty language, and the development of a series of separate instruments to address non-tariff barriers.
85 AEWTO, Art. IV:1. The MC12, initially scheduled to be held in June 2020, was postponed three times due to the pandemic before finally taking place in June 2022. The interval between MC6 and MC7 also extended beyond two years due to the stalemate in the Doha Round negotiations.
86 Jackson, supra n. 84, at 185. See also B. Gu (2024) ‘Teleological Interpretation by International Economic Organizations’, Journal of World Trade 58, 956. He warned that ‘if teleological interpretation prevails, there is hope that the WTO will survive and prosper; if it does not, as the tradition has been, the WTO will remain in recession, in decline, or even brain dead’.
87 For many other provisions, amendments shall take effect for either all members or the members that have accepted them upon acceptance by two thirds of the members, see AEWTO, Art. X:3 and 4.
88 See Kuijper, supra n. 81, at 96. Kuijper described this as ‘a clear example of (re)-interpreting or de facto modifying the WTO provisions without having to resort to the constitutional techniques of the authoritative interpretation under Article IX:2 and of amendment under Article X’.
89 See also Kuijper, supra n. 10, at 9. He distinguished between ‘times of emergency’ and ‘normal circumstances’ and observed that ‘[t]he ambush killing of the AB by the US clearly falls outside “normal circumstances”’.
90 Emphasis added.
91 See Vidigal's Blog, supra n. 14, paras. 3–4.
92 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 11 April 1949, ICJ Reports (1949) 174, 181.
93 See ibid., Dissenting Opinion by Judge Hackworth, at 202; Dissenting Opinion by Judge Krylov, at 217.
94 Ibid., at 183. Emphasis added.
95 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Second Phase), Advisory Opinion, 18 July 1950, ICJ Reports (1950) 221.
96 International Status of South-West Africa, Advisory Opinion, 11 July 1950, ICJ Reports (1950) 128.
97 Peace Treaties (Second Phase), supra n. 95, at 230.
98 South-West Africa, supra n. 96, at 136–137.
99 Ibid., at 137.
100 See ibid., Separate Opinion by Sir Arnold McNair, 158; Separate Opinion by Judge Read, 169.
101 See Effects of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion, 13 July 1954, ICJ Reports (1954), 47, 57.
102 Ibid., at 58.
103 Ibid., at 59–62.
104 For cases where a more dynamic reading of constituent instruments was denied, see e.g. Admission of a State to the United Nations (Charter, Art.4), Advisory Opinion, 28 May 1948, ICJ Reports (1948), 57; Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, 3 March 1950, ICJ Reports (1950), 8; Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization, Advisory Opinion, 8 June 1960, ICJ Reports (1960) 150; Legality of Nuclear Weapons, supra n. 71.
105 See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 21 June 1971, ICJ Report (1971), at 22, para. 22.
106 Institute of International Law, Resolution on Limits to Evolutive Interpretation of the Constituent Instruments of Organizations within the United Nations System by their Internal Organs, 4 September 2021, para. 7.
107 See M. Arsanjani (2019) Report on Are There Limits to the Dynamic Interpretation of the Constitution and Statutes of International Organization by the Internal Organs of Such Organizations (with Particular Reference to the UN System)?, 234. See also Yearbook of the Institute of International Law, vol. 82 (2021), 187.
108 Etinski, R. (2023) ‘Evolutive (Dynamic) Interpretation and Informal Modification of Constituent Instruments of International Organizations’, Chinese Journal of International Law 22, 213–214CrossRefGoogle Scholar.
109 See ibid., 214.
110 Article X of the AEWTO provides that: ‘3. Amendments to provisions of this Agreement … of a nature that would alter the rights and obligations of the Members, shall take effect for the Members that have accepted them upon acceptance by two thirds of the Members and thereafter for each other Member upon acceptance by it. The Ministerial Conference may decide by a three-fourths majority of the Members that any amendment made effective under this paragraph is of such a nature that any Member which has not accepted it within a period specified by the Ministerial Conference in each case shall be free to withdraw from the WTO or to remain a Member with the consent of the Ministerial Conference.
4. Amendments to provisions of this Agreement … of a nature that would not alter the rights and obligations of the Members, shall take effect for all Members upon acceptance by two thirds of the Members.’
111 See Vidigal, supra n. 14, at 22.
112 It has also been suggested by Vidigal that it is preferable for members to achieve consensus when issuing the authoritative interpretation, as this would allow the interpretation to ‘constitute a subsequent agreement and decisively affect the interpretation of the WTO Agreements’, see ibid., at 24. But this view seems overly optimistic.
113 In 1995, the General Council submit the draft decisions regarding Ecuador's accession and certain draft waivers to a vote by postal ballot, see General Council, Minutes of Meeting Held on 31 July 1995, WT/GC/M/6, 20 September 1995.
114 Gao, supra n. 15, at 546.
115 Hillman, supra n. 11, at 14.
116 See e.g. Jackson, supra n. 84, at 50 and 238; Ehlermann, C. and Ehring, L. (2005) ‘Decision-Making in the World Trade Organization’, Journal of International Economic Law 8(1), 51CrossRefGoogle Scholar; M. Elsig and T. Cottier (2011) ‘Reforming the WTO: the Decision-Making Triangle Revisited’, in T. Cottier and M. Elsig (eds.), Governing the World Trade Organization: Past, Present and Beyond Doha, 289.
117 P. Sutherland et al. (2004) The Future of the WTO: Addressing Institutional Challenges in the New Millennium. The report recommends that ‘distinctions … could be made for certain types of decisions such as purely procedural issues’ and a member blocking a wide-supported measure shall declare in writing ‘the matter is one of vital national interest to it’ with reasons included.
118 See ibid., at 63; Steinberg, R.H. (2002) ‘In the Shadow of Law or Power? Consensus-Based Bargaining and Outcomes in the GATT/WTO’, International Organization 56(2), 339, 362CrossRefGoogle Scholar. See also Footer, supra n. 9, 333. She observed that consensus decision-making also ‘favours majority interests in a less obtrusive way than weighed voting by giving procedural significance to parity of interest among the individual Members rather than having to take equality of voting power of Members into account’.
119 Ibid., at 64. It is mentioned that departing from consensus could give unfair advantage to parties with large blocks of votes and make it harder to negotiate a single undertaking within a broad agenda.
120 See e.g. Doha Ministerial Declaration, WT/MIN(01)/DEC/1, 20 November 2001, para. 30.
121 See e.g. Minutes of Meeting of the Dispute Settlement Body, WT/DSB/M/489, 10 June 2024,19. The US representative stated that ‘the United States recognized that … achieving fundamental dispute settlement reform would not be easy’ and ‘it looked forward to working with [the facilitator] and all Members as they pursued fundamental dispute settlement reform’.
122 Gao, supra n. 15, at 548. He mentioned factors like the concern about China's role in the WTO and the necessity of congressional approval.
123 Ibid., at 549.
124 Vidigal, supra n. 14, at 12.
125 See Gao, supra n. 15, at 547.
126 Kuijper, supra n. 10, at 10.
127 Ibid
128 Ibid.
129 Petersmann, supra n. 12, at 515.
130 Hillman, supra n. 11, at 12.
131 Issuing a formal interpretation could also lead to challenges based on Article IX:2, which provides that ‘[t]his paragraph shall not be used in a manner that would undermine the amend provisions in Article X’. See also WTO, United States – Measures Affecting the Production and Sales of Clove Cigarettes – Report of the Appellate Body, 4 April 2012, WT/DS406/AB/R, 84–88 (the legality of the Doha Ministerial Decision was challenged for not complying with relevant procedures despite its adoption by consensus).
132 General Council, Procedure for the Appointment of Directors-General, WT/L/509, 20 January 2003, para. 20. This paragraph provides that the General Council can resort to vote if it is not possible to take a decision by consensus.
133 Cf. General Assembly, Standing Mandate for a General Assembly Debate When a Veto is Cast in the Security Council, A/RES/76/262, 28 April 2022. This resolution addressed the highly sensitive issue of the veto and was adopted by consensus. To address member States’ concerns, the preamble notes that ‘the present resolution and its provisions are without prejudice to the intergovernmental negotiations on Security Council reform’.
134 One reviewer mentioned the possibility of appointing more AB members or ad hoc members. Compared to the proposal of appointing more AB members or member ad hoc, the merit of appointing fewer than seven members is that it operates within the current legal framework. For proposals outside this framework, many members may not feel legally obligated to join and might instead prefer the MPIA. Article 17 of the DSU stipulates that the AB ‘shall be composed of seven persons’ and ‘[v]acancies shall be filled as they arise’. Appointing more than seven members would constitute a clear violation of this provision. This may also be the case with appointing an AB member ad hoc. However, appointing fewer than seven members does not necessarily breach this provision, as the provision does not impose a specific time limit for filling vacancies. Given the significant challenges currently facing the AB, delaying the appointment of some members can be legally justified.
135 See also Sharma, R. (2020) ‘WTO Appellate Body at Cross Roads: Options and Alternatives’, in Lo, C., Nakagawa, J. and Chen, T. (eds.), The Appellate Body of the WTO and Its Reform, 244Google Scholar. Before the full paralysis of the AB, Sharma suggested that two members of AB be appointed to demonstrate that ‘the US is not totally against having the AB system’ and to satisfy ‘other WTO Members interests to continue with the AB’.
136 For further discussion on the appointment of AB members, see P. Lee, ‘Appointment and Reappointment of the Appellate Body Members: Judiciary or Politics’, in Lo et al., supra n. 135, 255.
137 E. Petersmann (2020) ‘Between “Member-Driven Governance” and “Judicialization”: Constitutional and Judicial Dilemmas in the World Trading System’, in Lo et al., supra n. 135, 34–35.
138 See Petersmann, E. (2020) ‘WTO [email protected]: Are Global Publics Goods like the World Trade Organization Owned by Governments or by Peoples and Citizens?’, Journal of East Asia and International Law 13, 36CrossRefGoogle Scholar.
139 See Kuijper, supra n. 10, at 9; Petersmann, supra n. 12, at 505.
140 See Hillman, supra n. 11, at 3.
141 See Gao, supra n. 15, at 547.