VJIL Symposium: Robert Howse Comments on “Interpretation and Institutional Choice at the WTO”

[Robert Howse is the Lloyd C. Nelson Professor of International Law at the New York University School of Law.]

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

The Article by Shaffer and Trachtman is a tour de force: it identifies and explains many of the most important interpretative choices that panels and the Appellate Body have made in adjudicating disputes under WTO law, and speculates on the implications for the WTO as an institution, its economic and political economy functions, and for the relation between international law and politics, both domestic and transnational. I assigned this article in one of the introductory classes for my advanced course in WTO law at NYU, because it canvassed so many of the issues that students need to think about when they are consider the WTO case law as a jurisprudence.

One of the issues that the authors discuss, which intersects with my own scholarship about the WTO and about fragmentation in international law more generally, is the role of non-WTO international law in WTO dispute settlement. Here the authors place considerable emphasis on the EC-Biotech case, where the panel made a highly dubious interpretative choice to exclude non-WTO international law relevant to to the regulation of GMOs from its consideration of the meaning of the WTO norms at issue. The authors thus tend to the conclusion that non-WTO has been marginalized in WTO dispute settlement, with possibly serious consequences for the legitimacy of the system; as they note, on such a scenario, there is an effective assertion of the supremacy of WTO rules or other international law norms that may be applicable to the matter at hand. Can such a supremacy be sustained legitimately from the perspective of the international legal system as a whole?

My sense is that the Appellate Body is cautiously distancing itself from the narrow approach in EC-Biotech. In EC-Aircraft, the Appellate Body, seemingly influenced by the ILC Working Group on Fragmentation Report, suggested that considerations of systemic integration in international law might suggest a fuller embrace of non-WTO international law in appropriate cases, even where not all WTO Members are parties to the non-WTO international agreement. In the China-AD/CVD case, the AB based its interpretation of an important concept in the WTO Subsides and Countervailing Measures Agreement (that of a “public body”) almost entirely upon the ILC Articles on State Responsibility. I sense that the AB has returned the orientation of the jurisprudence to the greater openness to non-WTO international law that had been displayed much earlier in the case of Shrimp/Turtle, where the AB brought a number of non-WTO international legal instruments into its adjudication of that dispute, particular those concerned with biodiversity.

A very shrewd observation of the authors is that, in a number of doctrinal areas, the AB has chosen approaches that entail judicial balancing, or case-by-case weighing of multiple factors or considerations, to “bright lines.” They are right that such an interpretative choice tends to be very (self-) empowering of the judicial branch. It is also a way of managing political conflict or disagreement in a fashion that may help preserve the legitimacy of the judiciary, since “bright lines” can often appear to favor systematically one value or one constituency over another in an area of normative contestation (the authors discuss the now clearly rejected (Shrimp/Turtle) “bright line” that the unadopted Tuna/Dolphin panels invented on PPMs, which systematically excluded a whole range of activist environmental strategies from consistency with WTO law): here we should consider Cass Sunstein’s thinking about “one case at a time.”

Where the AB has strayed from this strategy and tried to draw brighter lines, it has usually found itself quickly trying to nuance its own rulings. Thus, in EC-Asbestos where the AB was faced with its previous jurisprudence that only market competition counted in establishing whether products were like or unlike, it could not simply accept the consequences that a product that had created an enormous health crisis was like substitutes on the marketplace that were by comparison innocuous-so the majority of the AB division (with one member dissenting) ended up squeezing health effects into its competition-oriented framework, under a notion of consumer preferences that is very elastic, and clearly gives a lot of room to consider different values under the guise of what consumers, who are also citizens, care about. While upholding that approach in the recent U.S.-Clove Cigarettes appeal, the Appellate Body also indicated that regulatory objectives should not be improperly brought in to the likeness analysis.

The AB has further nuanced its focus on market competition under its interpretation of National Treatment, by evolving an approach that emphasizes a second step, beyond the determination of likeness, which is establishing treatment less favorable of the like imported products. Here the AB has held regulatory distinctions are permissible between products that are like from the perspective of market competition to be permissible, if those distinctions are based on bona fide grounds not related to the national origin of the products. Most recently, in U.S.-Clove Cigarettes, the AB held that, under the National Treatment provision in the Technical Barriers to Trade Agreement, there would be no violation of National Treatment if detrimental effects on imports could be attributed exclusively to a legitimate regulatory distinction.

A final note one development that is important to consider in light of the institutional analysis of the authors is the AB’s determination to resist pressure from the other branches in the WTO to deviate from its earlier rulings. Thus, for instance, it has continued to insist it has the discretion to consider amicus curiae briefs. The AB does not overrule itself explicitly and in the zeroing dispute, the AB forcefully asserted the precedential weight that panels are to attach to AB rulings, which comes close to stare decisis. Here the AB is effectively enhancing its own legitimacy and I think making dispute settlement more certain and secure because it provides a finality of interpretation that cannot be disrupted through political action in the WTO, at least not easily.