I’m intrigued by a speech Thomas Graham gave last week at Hofstra, reported also in Inside US Trade.
Mr. Graham (the US member on the Appellate Body) points out that -- with an increasingly diverse WTO membership (think: China and now Russia) and deadlock in WTO negotiations -- the corner stone of WTO success is probably “respect” for AB rulings:
If our decisions are respected, then the whole WTO system can continue to function pretty well for a long time even in a changing world and even without the negotiation of new and updated rules.
But without that respect, there may be a risk of the emperor’s having no clothes: of insufficient disincentives to prevent first one sovereign government, and then perhaps another, and another, from deciding not to comply with dispute settlement decisions.
How bad would that be? It’s hard to say. But it’s probably better not to find out.
It is tempting to read this as the old (mainly US) argument against gap-filling by the AB. Yet, Mr. Graham gives it quite a different spin and seems to be calling for a more nuanced position, where not all ambiguities or silences are created equal:
In some cases were those gaps or ambiguities intentional, to cover the inability of the negotiators to reach agreement, even in the simpler world of decades ago?
In other cases do gaps or ambiguities result because the rules are being applied to subjects that the negotiators did not anticipate 18 years ago?
In some cases is it simply poor drafting? If the text is unclear, does the reason matter? If the text is unclear, must we always find a meaning? Or should we sometimes leave matters undecided? Or decide by default: that is, the party asserting a meaning loses if on examination the text remains unclear?
He then seems to call for more reliance on negotiating history (which, he notes, “is sometimes overlooked”) to help the AB in deciding when to step in versus when to defer to national authorities:
Can we ever assume negotiators left some things unsaid or ambiguous because they intended to? Because they resorted to “creative ambiguity” when they couldn’t reach agreement on something?
In his view, getting the balance between interpretation and deference right is not only about keeping up “respect” for AB rulings, but also about enabling new negotiated trade deals:
If we don’t get that balance right … do we not only risk that invaluable commodity of respect but also do a disservice to the truly extraordinary negotiating feat the agreements represent -- and worse, do we make it harder for negotiators to come to agreement in the future, if they fear they must cross every “t” and dot every “i” to prevent unintended interpretations?
I do believe that this is a crucial issue that the AB cannot simply continue to ignore by saying that Articles 31 and 32 of the Vienna Convention by definition lead to only one (correct) interpretation. Today’s diverse WTO membership (no longer just the EU and the US and a handful of other countries control) makes it much more difficult for WTO members to exercise even informal oversight over the AB (e.g. through outrage or condemnation at the DSB or elsewhere). Whatever the AB decides these days, one or more important members will be upset. Ironically, this gives the AB more (not less) freedom to decide cases. And it makes it all the more important to get a discussion going on how the AB fills in these powers of, what a former AB member (Prof. Abi-Saab) likes to call, "judicial politics" (here is my earlier attempt). That is the essence of our legal craft as lawyers. It is not just about rightly deciding a particular case, but about keeping up "respect" for (and the survival of) the AB as an institution that increasingly decides crucial aspects of peoples' lives across the globe.
What do others think, or am I reading too much into this speech?
