As most of this blog's readers are aware, there is an ongoing debate about the role of international law in WTO dispute settlement. Perhaps adding to that discussion, this is from yesterday's WTO panel report in U.S. - AD/CVD on Products from China (DS379):
8.87 Before we address the substance of this argument, we consider the status of the [International Law Commission's Draft Articles on Responsibility of States for Internationally Wrongful Acts], and in particular whether as China argues we must as a matter of law interpret the provisions of the SCM Agreement at issue in conformity with language and concepts in certain provisions of the Draft Articles. In this regard, the first question is whether the Draft Articles are recognized in the WTO as "rules of international law applicable in the relations between the parties" to the dispute, and the second question is whether they are "relevant" to this dispute. On the first question, in our view, China significantly overstates the status that has been accorded to the Draft Articles where they have been referred to by panels and the Appellate Body. Indeed, in not a single instance of such citations identified by China has a panel or the Appellate Body identified the Draft Articles as "relevant rules of international law applicable in the relations between the parties" in the sense of Article 31(3)(c) of the Vienna Convention, such that they should be "taken into account together with the context" when interpreting the treaty. Rather, in our view, the various citations to the Draft Articles have been as conceptual guidance only to supplement or confirm, but not to replace, the analyses based on the ordinary meaning, context and object and purpose of the relevant covered Agreements. In particular, while in some cases the Draft Articles have been cited as containing similar provisions to those in certain areas of the WTO Agreement, in others they have been cited by way of contrast with the provisions of the WTO Agreement, as a way to better understand the possible meaning of the provisions of the WTO Agreement. In all cases, however, the exercise undertaken by these panels and the Appellate Body has been to interpret the WTO Agreement on its own terms, i.e., on the basis of the ordinary meaning of the terms of the treaty in their context and in the light of the object and purpose of the treaty. (emphasis added)
Is the Panel on to something in the italicized sentence? Is "conceptual guidance" a good way to think about how international law is most likely to play a role in WTO dispute settlement?
This reminds me of the "role of precedent" discussion. Prior panel and Appellate Body reports clearly have some relevance. The question is, how much? The same issue arises for the use of international law.
