The United States has expressed concerns about various Appellate Body interpretations of WTO obligations, in particular relating to trade remedies, but as far as I know it has not offered any specific proposals to address the flaws it sees in the Appellate Body's approach to treaty interpretation in these cases. There was a proposal many years ago that involved, among other things, "partial adoption" of Appellate Body reports and interim review of those reports, but that doesn't directly address the interpretive process. I have wondered if it has some proposals coming on interpretation, but I'm getting a little antsy so I thought I'd offer one of my own.
The United States -- and others as well -- has suggested that the AD Agreement Article 17.6(ii) legal standard is not working properly. Here is the text of that provision:
(ii) the panel shall interpret the relevant provisions of the Agreement in accordance with customary rules of interpretation of public international law. Where the panel finds that a relevant provision of the Agreement admits of more than one permissible interpretation, the panel shall find the authorities' measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations.
The concern is that panels and the Appellate Body have been too reluctant to find that multiple permissible interpretations exist, and in this way are applying the provision with too little deference to investigating authorities.
Are there drafting changes that could ensure more deference to investigating authorities? Here's one idea I had. Article 32 of the Vienna Convention on the Law of Treaties says:
Article 32: Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.
Based on this provision, we know that there are situations where the Article 31 treaty interpretation process "leaves the meaning ambiguous or obscure." Throughout the history of treaty interpretation, there must be a fair amount of experience with this and some good examples to guide the way. Perhaps, then, we could use this to inform the Article 17.6(ii) standard. Specifically, if the Article 31 interpretation process "leaves the meaning ambiguous or obscure," there could be a presumption that multiple permissible interpretations exist. In this way, Article 17.6(ii) could be given a little more substance, and panels and the Appellate Body would have a better sense of how to apply it with the kind of deference the United States is looking for. (The "leads to a result which is manifestly absurd or unreasonable" language could also be used in the same way, but that seems a little harder to demonstrate).
The redrafted Article 17.6(ii) text could look something like this:
(ii) the panel shall interpret the relevant provisions of the Agreement in accordance with customary rules of interpretation of public international law. Where the panel finds that a relevant provision of the Agreement admits of more than one permissible interpretation, the panel shall find the authorities' measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations. As an illustration of a situation where more than one permissible interpretation exists, if the panel concludes that the interpretive approach set out in Article 31 of the Vienna Convention on the Law of Treaties leaves the meaning of a provision ambiguous or obscure, there shall be a presumption that the provision admits of more than one permissible interpretation, and the panel shall find the authorities' measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations.
We could take the same idea even further. Here is the full text of Article 31:
Article 31: General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.
The revised Article 17.6(ii) text could say that if the meaning is "ambiguous or obscure" after Article 31(1) alone is applied, then the presumption of multiple permissible interpretations would apply.
This is just one suggestion. There are probably many others along the same lines.
I have no idea how other Members would react to a proposal such as this. But at least it might get the discussion moving in a productive direction.
