As indicated in my previous post, South Korea, a third party in the Rare Earths appeal, advocated referencing negotiation history in the interpretation of Paragraph 11.3 of China’s Accession Protocol. Para. 2.7.7of the AB Report reads in part:
In Korea's view, the interpretation pursuant to Article 31 of the Vienna Convention "seems to leave the meaning of Paragraph 11.3 of China's Accession Protocol still ambiguous or obscure". Therefore, Korea argues, in answering the question of whether Article XX could be invoked as a defence to breaches of Paragraph 11.3, recourse to preparatory work of the accession negotiations, pursuant to Article 32 of the Vienna Convention, may assist in finding the "correct intention between the negotiating parties". (footnotes omitted)
Apparently there is no record of the negotiation history on this issue in the case of China. Nonetheless, Russia, also a third party in Rare Earths, provided a relevant account on the negotiating history of its own accession protocol. According to para. 2.240 of the AB Report:
Russia submits that the Panel's finding that an explicit textual link between the GATT 1994 and Paragraph 11.3 of China's Accession Protocol is required for Article XX of the GATT to be available to justify a breach of the Protocol is of serious concern. Russia claims that, during its accession negotiations, upon assurance by the incumbent WTO Members that defences under the WTO agreements are equally available to all WTO Members, Russia agreed to delete the following statement from its Accession Protocol: "nothing in these commitments shall be understood to derogate from the rights of the Russian Federation under the WTO Agreement as applied between the Members of the WTO by the date of accession of the Russian Federation to the WTO."327 In Russia's view, the Panel's above finding means that the statement Russia agreed to delete should have been included in the accession protocols of all newly acceded WTO Members. Russia further maintains that the Panel's finding would apply to all other defences, including the security exceptions in Article XXI of the GATT 1994. For Russia, an acceding Member's intention to waive its right to protect important values such as life and health must be clearly and unambiguously explained. In this regard, Russia stresses its agreement with the views of the dissenting member of the Panel. (emphasis added)
327 Russia's opening statement at the oral hearing (quoting document WT/ACCSPEC/RUS/25/Rev.3, p. 243)
The document quoted by Russia (WT/ACC/SPEC/RUS/25/Rev.3, p. 243) is the 2004 draft protocol of accession of Russia, of which paragraph I.2 reads:
2. The WTO Agreement to which the Russian Federation accedes shall be the WTO Agreement as rectified, amended or otherwise modified by such legal instruments as may have entered into force before the date of accession. This Protocol, which shall include the commitments referred to in paragraph ... of the Working Party Report, shall be an integral part of the WTO Agreement, and nothing in these commitments shall be understood to derogate from the rights of the Russian Federation under the WTO Agreement as applied between the Members of the WTO by the date of accession of the Russian Federation to the WTO. (italics added)
It must be noted that the italicized statement above that was deleted from the Russia accession protocol could not have been included in China’s accession protocol or any other accession protocol that contains WTO-plus obligations. That is because a WTO-plus obligation, by definition, derogates from a right under the WTO agreements. For example, when China undertook to eliminate export duties, it consented to the derogation of its rights to use export duties under GATT articles II and XI. In such a case, the question becomes whether the policy exceptions prescribed by GATT XX and XXI should be equally available to the GATT-plus commitments. Now the AB has twice ruled that such policy exceptions are not automatically (or equally) available to the GATT-plus commitments. Instead, the acceding member has to prove, with respect to each accession commitment, that it has explicitly reserved the right to invoke the policy exceptions. In the light of the AB rulings, therefore, all acceding members that have agreed to special accession commitments should have insisted on including in their accession protocols a statement to this effect: “nothing in these commitments shall be understood to derogate from its right to invoke the public policy exceptions available under the WTO Agreement.”
That said, Russia’s account of its negotiating history is highly significant for our study of the relationship between the WTO agreements and accession protocols, a subject that remains as murky as before the AB’s decision in Rare Earths. Many questions come to mind. What is the significance of the deleted statement from the draft Russia protocol? Why was it deleted? Was it done because the statement was deemed superfluous, as Russia seemed to suggest (it was deleted “upon assurance of the incumbent Members that defences under the WTO agreements are equally available to all WTO Members”)? But what would be the harm of explicitly reassuring the acceding member of its rights? Is there any written record of such assurance? If there is no written record, what is the legal effect of the deletion? When the negotiating history shows the deletion of certain language, the intention can be interpreted both ways: it can be understood to mean that the parties saw the language as unnecessary because no one would disagree with its content, or it can be interpreted as the parties’ ultimate rejection of the language. In any event, the deletion would have to mean something. If the issue ever comes to dispute, how should the AB interpret the record of this deletion? In a sense, the question of how to interpret a deletion is similar to the question of how to interpret silence, the very issue at the core of the Rare Earths appeal. If the AB follows its nicely stated general principles of treaty interpretation in Rare Earths, what would be the result? This seems a fine topic for a research paper.
