Dr. Weihuan Zhou and I have posted on SSRN a new paper on AB crisis. In the paper, we addressed the US allegation that the AB has "overreached" in many cases.
We tackle the issue by first reviewing the core function of the WTO, which in our view is to reign in protectionism without unduly restraining the ability of WTO Members to adopt various measures for legitimate policy objectives. Then we reviewed three major TBT cases, i.e. US – Clove Cigarettes, US – Tuna II (Mexico) and two subsequent compliance proceedings (i.e. US – Tuna II (Mexico)(Article 21.5) and US – Tuna II (Mexico)(Article 21.5 II)), and EC – Seal Products. We chose these cases as TBT cases are, along with trade remedies cases, the main subject of the US complaint of "overreaching", yet there have been little discussions of these cases except Robert Howse's 2016 EJIL paper. Moreover, these cases involve the competition of different policy goals, which provide nice illustrations of the difficult choices the AB has to make in view of the function of the WTO. Upon reviewing these cases, we conclude that these decisions have achieved a good balance between disciplining protectionist measures and allowing deference to domestic regulatory autonomy.
While the US allegation of judicial overreaching is untenable, we do not think that the US criticism shall, therefore, be dismissed outright. Instead, we think the US concern raises a deeper issue, i.e., the legislative failure in the WTO. Thus, we continue our paper to suggest some practical solutions to the problem, which fall into three groups:
- Before a dispute: try to reduce the legislative gap by avoiding the practice of “constructive ambiguity”;
- During a dispute: give Parties more autonomy to carve out certain issues from dispute settlement.
- After the decision is made in a dispute: provide an easier way for the political bodies to overrule the decisions of the judiciary. In particular, we suggest a new mechanism of adopting procedural "declaration" that doesn't affect the substantive rights and obligations of Members, but only make certain issues non-justiciable.
Whether or not the AB may survive the US blockage, we believe the issue would still remain unless a solution is found at the root. To decide complicated international trade disputes based on highly abstract and sometimes incomplete rules, one - be it the AB, the panel, or whoever called upon to carry out the important yet thankless task of dispute settlement and treaty interpretation - necessarily has to improvise by putting oneself into the shoes of the treaty drafter. Or, as Robert A. Heinlein more deftly put it in his novel “Double Star”, “If Satan should ever replace God he would find it necessary to assume the attributes of Divinity.”
In this regard, it is our humble hope that our paper could help stir the Gods at Centre William Rappard into making some divine intervention. AMEN.
