Very Imp THE WTO'S USE OF RELEVANT RULES OF INTERNATIONAL LAW - An Analysis of EC Biotech Case PDF

British Institute of International and Comparative Law
The Wto's Use of Relevant Rules of International Law: An Analysis of the Biotech Case
Author(s): Margaret A. Young
Source: The International and Comparative Law Quarterly, Vol. 56, No. 4 (Oct., 2007), pp. 907930
Published by: Cambridge University Press on behalf of the British Institute of International and
Comparative Law
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Current Developments
907
II. THEWTO'SUSEOFRELEVANT
RULESOFINTERNATIONAL
LAW:
AN ANALYSISOFTHEBIOTECH
CASE
A. Introduction
Therelationship
betweentradeandotherareasof international
lawis highlycontested.
Some observerssuggestthatthe enforceability
of WorldTradeOrganization
(WTO)
to furtherothergoalssuchas environmental
obligationsshouldbe harnessed
protection
or humanrights.Othersarguethatimposingconditionsof thiskindcanallowprotectionistStatesto subverttheiragreedtradecommitments.
Still othersrespondthatthe
kindof 'self-contained
issuesoutsideof
regime'thatis necessaryto keep 'non-trade'
the WTOis antithetical
to the ideaof an 'international
legalsystem'.Thisdebatehas
beenplayedout in manylocations.TheInternational
LawCommission,for example,
the
nature
of
international
law, in whichfragmented
recentlyemphasized systemic
normsareresolvablethroughtreatyinterpretation
andotherrules.1
In EC-MeasuresAffectingthe Approvaland Marketingof Biotech Products a WTO
Panelhadto determinewhetherandhow it couldtakeintoaccountsourcesof internationallaw extrinsicto theWTOcoveredagreements.2

Thedisputewas broughtby the
UnitedStates,CanadaandArgentinaabouttheWTOconsistencyof theEC'simportation of geneticallymodified(GM)products.Thepolicyissuesarisingfrom'GM'(or
as thecomplaining
to call it)3havebeenconsidered
'biotechnology',
partiespreferred
in manyinternational
environmental
fora,includingunderthe auspicesof multilateral
agreements (MEAs) like the Cartagena Protocol on Biosafety4 (Biosafety Protocol)
andin standard-setting
bodiesliketheCodexAlimentarius
andin international
organizationslike the FoodandAgricultural
(FAO).Oneissue for the Panel,
Organization
then, was how to take accountof this international
legal contextin resolvingthe
dispute.Thisissuewasmademoredifficultbecausesomeof thedisputingpartieswere
notpartiesto thetreatiesthatformedthisinternational
context--theEC,for example,
was the only disputingpartythat had signed and ratifiedthe BiosafetyProtocol.
therelevantnorms.
Varyingdegreesof Stateconsentthereforeaccompanied
ThePanelresponded
by distinguishing
strictlybetweenbindingapplicablelaw and
'informative'
lawthatcouldbe takenintoaccountin interpreting
therelenon-binding
vantWTOagreements.5
In doing so, the PanelconstruedArticle31(1) andArticle
of the StudyGroupof the International
LawCommission
as finalizedby the
1 Report
M Koskenniemi,
of International
Law:DifficultiesArisingfromthe
Chairman,
'Fragmentation
andExpansion
Diversification
of International
Law'ILC,UN Doc,A/CN.4/L.682
andCorr.1and
Add. 1 (13 Apr 2006). The UN GeneralAssemblytook note of the conclusionsof the
Commission'sStudyGroup,togetherwiththe analyticalstudyfinalizedby the Chairman,
on 4
December2006:see UN Doc A/Res/61/34.
2 PanelReportWT/DS291/R,
29 Sept2006(Biotech).
WT/DS292/R,
WT/DS293/R,
3 TheBiotechpanelusedtheterms'biotechproducts','GMOs','GMplants','GMcrops'or
'GMproducts'interchangeably:
see paras7.1-7.2. I haveadoptedthe sameapproach,
although
'biotech'is botha widertermandone whichpotentiallyobfuscatesthe issuesby removingthe
politicallychargedlanguageof 'GM'fromthefaceof opinion.
Protocolon Biosafetyto theConvention
on BiologicalDiversity(2000)39 ILM
4 Cartagena
1027.At thetimeof theEC'swrittensubmissions,
therewere103signatories:
Biotech(n 2) para
4.340.TheProtocolenteredintoforceon 11 September
2003andtherearecurrently141parties:
see <http://www.cbd.int/biosafety/signinglist.shtml>
(lastaccessed20 July2007).
5 Biotech(n 2) paras7.92-7.94.
[ICLQvol 56, October2007pp 907-930]
doi: 10.1093/iclq/lei207

908
Internationaland ComparativeLaw Quarterly
31(3)(c) of the Vienna Conventionon the Law of Treaties(VCLT)6in a novel way and,
with the consent of the disputing parties, consulted other internationalorganizations.
The result was that some politically contentious internationaltreaties and norms-includingthe Biosafety Protocol and the precautionaryprinciple7--were left out of the
report,while various rules and guidelines from standard-settingorganizationssuch as
the Codex Alimentariuswere takeninto account.The Panel's use of these international
rules and guidelines is easy to miss for those who limit their reading of the Panel's
1,000+-page reportto the 15 pages headed 'Relevance of other rules of international
law to the interpretationof the WTO agreementsat issue in this dispute';8in fact these
non-WTO sources were crucial to the Panel's analysis of the applicabilityof the relevant WTO covered agreements.
In this note, I explain and evaluatethe reasoningof the Biotech panel as it relatesto
the use of internationallaw norms extrinsic to the WTO.9First, I describe the Panel's
jurisdiction and its conception of the applicable law. Secondly, I turn to the Panel's
interpretationof the WTO obligationsaccordingto the rules enshrinedin the VCLT. In
this section, I explain the controversyover the Panel's interpretationof VCLT Article
31(3)(c). The Panel found that for treaties to be relevant rules of internationallaw
applicablebetween 'the parties',their membersmust be identicalto or broaderthanthe
WTO, thus attractingcriticismof under-inclusiveness.Next, I assess the Panel's use of
non-WTOsources as informingthe 'ordinarymeaning' of WTO treatytermspursuant
to VCLT Article 31(1). In taking this 'informative'law into account,the Panel did not
requireit to be binding between the disputingpartiesor the WTO members.Although
some would welcome this loosening of the requirementof State consent, I claim that
this methodof treatyinterpretationleads to 'over-inclusiveness'.To this end, I point to
examples from the Panel's reportwhere the Panel's incorporationof non-WTOsources
appearsindiscriminateand arbitrary.Thirdly,I consider how the Panel used its broad
consultativepowers to obtain informationfrom internationalorganizations.The Panel
linked this consultation with its quest to interpretthe 'ordinarymeaning' of treaty
terms. Again, the Panel did not inquireinto the levels of membershipof the disputing
partiesor the WTO Membersin the internationalorganizationswith which it consulted.
It did, however, closely involve the disputingpartiesin this consultativeprocess so that
their intentionsremainedrelevantto establishingan interpretativecontext of the WTO
treatyterms.
Underlyingmy critiqueof Biotech's use of relevantrules of internationallaw is the
need for visibility of certain assumptionsabout the 'internationalsystem' of international law. The Panel's interpretationof VCLT Article 31(3)(c) was founded on the
need to establish the consent of the constituentmembersof an internationalregime as
to its relevantinterpretativecontext. This interpretationfollows classic conceptionsof
sovereignty and establishes State consent as the 'entrancecondition' for relevantrules
6 ViennaConventionon the Law of Treaties(1969) 8 ILM679. Thereare
currently108
belown 42.
parties,manybutnotall of whomaremembersof theWTO.See further
7 Thatthesetreatiesandnormsarecontentious
is evidencedby thecurrent
forWTOMembers
betweenexistingWTOrules and multilateral
environmental
negotiationson the relationship
agreements(MEAs):see para 31(i) of the Doha Declaration,Doha Agenda Ministerial
20 Nov 2001 (2002)41 ILM746.
WT/MIN(01)/DEC/1,
8 ibidparas7.49-7.96.
law' and'non-WTO
(and,later,'non-WTO
sources')is not
9 My use of the word'extrinsic'
intendedto confirmthePanel'sstartingassumptions
aboutsources.

CurrentDevelopments
909
of international law to be taken into account in dispute settlement. The Panel's

constructionof Article 31(1) was based on a differentfoundation,namely whether an
internationaltext could contributeto finding the 'ordinarymeaning' of a treaty term
withoutregardto whetherthe disputingpartiesor WTO membershad agreedto it.10o
If
such consensus gives rise to an 'entrancecondition' for norms in internationaldispute
settlement,I argue that it is importantto have regardto the types of judicial and institutionaltools that are currentlyavailable for establishingit.
B. The Biotech Case
In this section, I provide a brief overview of the case and analyse the Panel's conception of the applicablelaw between the disputingparties,which it found not to include
sources externalto the WTO covered agreements.
1. Overview
In 2003, the United States, Canada,and Argentinafiled a claim at the WTO relatingto
their attemptsto importgenetically modified agriculturalproductsinto the EC.11The
complaintscovered three generalcategoriesof measuresthataffected the approvaland
marketingof biotech products:12
* an alleged moratoriumby the EC on approvalsof biotech products;
* various EC measures affecting the approvalof specific biotech products such as
genetically modified maize ('product-specificmeasures');and
* various domestic 'safeguardmeasures' prohibitingthe importand/ormarketingof
specific biotech products adopted by particularEC Member States, viz, Austria,
France,Germany,Greece, Italy and Luxembourg.
The dispute was one of the most complex and wide-ranging in the WTO's 10-year
history. It took threeyears for the Panel to resolve and the resultingreportamountedto
over 1000 pages. In additionto the multiple submissions of the four disputingparties,
there were third-partysubmissions from Australia, Chile, China, New Zealand, and
Norway and three sets of amicus briefs from a group of universityprofessorsand two
groupsof NGOs. The Panel also obtainedwrittenand oral evidence from international
organizationsand scientific experts.
The complainingpartiesbased their claims on three WTO covered agreements:the
Agreement on Sanitary and Phytosanitary Measures (the SPS Agreement), the
10 ibidpara7.94:'themerefactthatoneor moredisputingpartiesarenotpartiesto a convenmeanthata conventioncannotshedlighton themeaningandscopeof a
tiondoesnotnecessarily
treatytermto be interpreted.'
relevancewerethosewhichwerein forceon orbefore
of primary
1l TheEClegalinstruments
of the Panelon 29 August2003, namelyDirective90/220on the
the dateof the establishment
of geneticallymodifiedorganisms([1990]OJL117/15)
deliberatereleaseintothe environment
of genetreleaseintotheenvironment
(repealed17Oct2002);Directive2001/19on thedeliberate
ically modifiedorganismsand repealingCouncilDirective90/220 ([2001] OJ L106/1) and
Regulation258/97concerningnovelfoods andnovelfood ingredients([1997]OJ L43/1):see
Biotech(n 2) para7.106.
12 See ibidpara7.98.

910
Agreement on Technical Barriers to Trade (the TBT Agreement) and the General
Agreementson TariffsandTrade(GATT).The SPS Agreement-which containsmore
onerous disciplines on import restrictionsthan the other two-requires countries to
undertakedetailedrisk assessmentsto justify as scientifically necessaryimportbans or
other trademeasures.One of the core issues of the case was thus the Panel's interpretation of the SPS Agreementto determineits applicabilityto the measuresin dispute
vis-a-vis the other two agreements.The Panel's jurisdictionto rule on these violations
was not disputedby the EC, althoughit did requesta preliminaryrulingon the breadth
of the parties' claims.13
In its defence, the EC claimed that three rules of internationalenvironmentallaw
were relevant to the dispute and should be used by the Panel as interpretativetools
First, the precautionary
according to the customary norms of treaty interpretation.14
should not be used as a
lack
of
full
scientific
that
which
certainty
provides
principle,
reason to postpone or avoid measuresto minimize novel and unprovenrisks of serious
or irreversibleharm,was said by the EC to be a generalprincipleof law. Secondly, the
Conventionon Biological Diversity (CBD),15which includes interalia a recognitionof
the precautionaryprinciplein its Preamble.Of the disputingparties,the EC, Argentina
and Canada were bound by the CBD, while the US had signed but not ratified it.
Thirdly,the EC invoked the Biosafety Protocol, which lays down requirementsfor the
transboundarymovement of 'living modified organisms'.16It had been ratifiedby the
EC but only Argentinaand Canadahad signed it and the US had no involvement with
it except for participationin the 'Biosafety Clearing-House'information-sharingmechanism. After a request by the Panel, the EC provided a list of provisions from these
MEAs that it consideredto be necessary for the Panel to take into account.17In addition to these principles of internationalenvironmentallaw relied on by the EC, there
was a large body of other internationallaw invoked variously by all of the disputing
partiesin theirsubmissions.This includedtreatiesand soft law instrumentsthatformed
the legal frameworkof internationalhealth and safety protectionsuch as Codex guidelines and FAO studies. I shall show in the next section that these materialswere to
become very relevantto the Panel's controversialtask of interpretingAnnex A of the
SPS Agreement.'8
The Panel releaseda confidentialinterimreportto the disputingpartiesin May 2006
(which was apparentlyimproperly disclosed to the public by one of them)19 and
13 ibid
para4.38.
14The WTOcoveredagreements
withcustomaryrulesof
areto be clarified'in accordance
law':DSUArt3.2.
of publicinternational
interpretation
190parties:see
on BiologicalDiversity(1992)31 ILM818.Therearecurrently
15 Convention
(lastaccessed20 July2007).
<http://www.cbd.int/convention/parties/list.shtml>
meansanylivingorganism
16 See BiosafetyProtocol,Art3(g):"'Livingmodifiedorganism"
thatpossessesa novel combinationof geneticmaterialobtainedthroughthe use of modern
biotechnology.'
refersto the
17Biotech(n 2) para7.95, see footnote274: 'The EuropeanCommunities
PreambleandArticle8(g) of the CBDandArticles1, 8, 10, 11, 15,23, 26 andAnnexIIIof the
BiosafetyProtocol.'
18 SPSAgreement
AnnexA is reproduced
below,n 40.
Eachpartystatedthattheyhadno involvement
19 The sourceof the leakwas not identified.
on
withtheleakandnotedtheirconcernsaboutit. Theinterimreportwassubsequently
published
the websitesof some of the NGOsthathad submittedamiciin the proceedings.See further
wasparticBiotech(n 2) paras6.183-6.196.China,as oneof thethirdpartiesto theproceedings,
see Minutesof
ularlyconcernedto bringthis leak to the attentionof the WTOmembership:

CurrentDevelopments
911
published its final public report in September2006. It found that the relevant legal
instrumentsconstitutingthe EC's approvalregime at the time of the establishmentof
the panel were SPS Measureswithin the meaningof Annex A of the SPS Agreement.20
It also found thatthe EC had operateda de facto moratoriumon the approvalof biotech
products.21Although this de facto moratoriumwas not itself a SPS Measure,22the
Panel found that it constituted 'undue delay' and thus violated certain procedural
requirementsof the SPS Agreement.23Similarfindings were made with respect to the
product-specificmeasures;24 out of the 27 challenged approvalprocedureswere said
to have been unduly delayed.24In addition, the Panel found that the Member State
'safeguardmeasures' fell within the definition of 'SPS Measures' in Annex A of the
SPS Agreement25and that there was a failure to conduct appropriaterisk assessments
before the impositionof these measures,in violation of the SPS Agreement.26It found,
too, thathaving disposed of the claims underthe SPS Agreementit was not requiredto
assess the complaintsunderthe TBT Agreementor the GATT.27The Panel reportwas
adoptedby the WTO Dispute SettlementBody in November 2006.28The EC did not
appealthe decision because althoughit disagreedwith some aspects of the findings, it
consideredthat much of the Panel reporthad become theoreticalbecause its approvals
regime had been functioningnormallyand some 10 GM productshad been authorized
since the Panel's establishment.29
2. Applicable law
Before assessingthe Panel's use of non-WTOsourcesas interpretativetools, it is importantto note thatthe EC did not claim thatthe rules of internationallaw enshrinedin the
precautionaryprinciple,the CBD and the Biosafety Protocolshouldbe directlyapplied
(12 Jan
Meetingof the WTODisputeSettlementBodyof 21 November2006,WT/DSB/M/222
2007)para74.
20 ThePanelfoundthatthe
form,nature,andpurposeof Directives90/220and2001/18as well
as Regulation
258/97(to theextentthatthatRegulation
soughtto preventnovelfoodsfrombeing
a dangerto theconsumer)constituted
'SPSmeasures'withinthemeaningof AnnexA(1) of the
SPSAgreement:
see Biotech(n 2) paras7.147-7.437,especiallypara7.432.
21 ibid,paras7.438-7.1627,
especiallypara7.1272.
22 ibid, para7.1383. The complainingpartiesthus failed to establishthatthe moratorium
breachedArts5.1, 5.6 and2.2 of theSPSAgreement.
23 The relevantobligationswere in Annex C(1)(a)and, consequently,Art 8 of the SPS
see 7.1567-7.1568.Thecomplaining
Agreement:
parties'claimsunderArts2.2, 2.3, 5.1,5.5, 5.6,
7, and10.1andAnnexB(1) andAnnexC(1)(b)wererejected.
24 See Biotech(n 2) paras7.1628-7.2528.TheEC was foundto havefailedto completethe
relevantapprovalwithoutunduedelay and hence had breachedits obligationsunderAnnex
see summary,
C(1)(a),firstclause,andArt8 of theSPSAgreement:
paras7.2390-2391.Formore
detailsee, eg, the approvalprocedurefor Falconoilseedrape:para7.1813.The complaining
parties'claimsunder2.2, 2.3, 5.1, 5.5, 5.6, 7, AnnexB(1),AnnexC(1)(b),(c) and(e) of theSPS
wererejected.
Agreement
25 See Biotech(n 2) paras7.2545-7.2922.
26 Therelevantobligationswerein Arts5.1 and,by
thesecondandthirdrequireimplication,
mentsof Art2.2 of theSPSAgreement:
see generallyparas7.3008-7.3399.ThePanelexercised
judicialeconomyon Arts2.3, 5.5 and5.6 of theSPSAgreement.
27 See,forthesafeguard
measures,Biotech(n 2) paras7.3407-7.3430.
28 Minutesof Meetingof the WTO DisputeSettlementBody of 21 November2006,
WT/DSB/M/222
(12 Jan2007).
29 ibid para73.

912
at the WTO. In one

by the Panel.30The issue of applicablelaw is not straightforward
WTO
of
the
WTO's
Settlement
reading
Understanding,
panelsmay applyall law
Dispute
applicablebetween the parties,includingfrom sources outside the WTO.31In another
view, WTO panelsarerestrictedto applyingWTO law.32Accordingto the formerview,
if a dispute arises at the WTO between WTO members who are also parties to the
Biosafety Protocol, the Biosafety Protocol can be raised as a defence.33
Althoughthe complainingpartieswere awareof the possible relevanceof this issue
to the dispute,34the EC preferredto shape its argumentsaccordingto the Appellate
Body's approachin US-Shrimp.35In thatcase, internationalenvironmentaltreatiesthat
were not binding on the disputing parties featured heavily in the Appellate Body's
report, but as aids to interpretationratherthan as applicable law. According to this
framingof the case, the Panel in Biotech did not need to addressthe issue of whether
non-WTOlaw could be appliedby a WTO dispute settlementbody as 'applicablelaw
between the disputing parties' in defending an alleged WTO violation. It made an
oblique referenceto this issue, however, when it stated:36
30 See, eg, BiotechAnnexD, D-91,para18 withrespectto theCBDandBiosafetyProtocol:

as such,but
'TheEuropean
is not invitingthe panelto "apply"theseinstruments
Communities
withthem.'
ratherto ensurethattheWTOrulesareinterpreted
consistently
31 See Panel Report,Korea-Measures Affecting GovernmentProcurement,WT/DS/163/R (1
law:'Suchinternational
law applies
international
May2000)para7.96 withrespectto customary
out"fromit. To putit anotherway,
to theextentthattheWTOtreatyagreements
do not"contract
or anexpressionin a coveredWTOagreement
to theextentthereis no conflictor inconsistency,
lawapplyto
thatimpliesdifferently,
we areof theview thatthecustomary
rulesof international
undertheWTO.'See furtherD Palmeter
theWTOtreatiesandto theprocessof treatyformation
and PC Mavroidis,'The WTOLegal System:Sourcesof Law' (1998) 92 AJIL398, 409; L
Lawin WTODisputeSettlement
Bartels,'Applicable
(2001)35(3)J of WorldTrade
Proceedings'
499; J Pauwelyn,ConflictofNorms in Public InternationalLaw (CUP, Cambridge,2003) 460 and
the Reportof the ILCStudyGroupas finalizedby Koskenniemi

(n 1) para169. For the use
disputesmore generally,C McLachlan,'The Principleof
'applicablelaw' in international
andArticle31(3)(c)of the ViennaConvention'(2005)54 ICLQ279 and
SystemicIntegration
referencestherein.
32 See, eg, G Marceau,'Conflictof NormsandConflictsof Jurisdictions:
TheRelationship
betweentheWTOAgreementandMEAsandotherTreaties'(2001)35 J of WorldTrade1081,
1116('theapplicable
lawbeforeWTOadjudicating
bodiesis onlyWTOlaw').
33 I makeno claimaboutwhetherthe BiosafetyProtocolwouldprovidea defenceto WTO
obligationsif appliedby a WTOPanel.In thisregard,see S Safrin,'Treatiesin Collision?The
BiosafetyProtocolandthe WorldTradeOrganization
Agreements'(2002)96 AJIL606, who
if WTOandBiosafety
claimsthattheProtocolis compatible
withtheWTOregime.By contrast,
Protocolobligationswerefoundto conflict,thesemightbe resolvedin favourof theProtocoldue
Forfurther
of anotherruleof recognition.
to its statusas lex specialisor, indeed,the application
discussionof the lex specialis rule, see Reportof the ILC Study Groupas finalizedby
Koskenniemi
(n 1) paras46-422.
34 TheUS, for example,referred
to the Panel'stermsof referenceunderArt7.1 of theDSU
whichareto examinethe matterat issue 'in light of the relevantprovisions... in the covered
have
citedby thepartiesto thedispute':Biotech(n 2) para7.56.Somecommentators
agreements
consideredthisclauseto restricttheapplicable
lawof a panelto WTOsources:see, eg, Marceau
(n 27); contraPauwelyn(n 26) 466-70 andreferencestherein.Canadasubmittedthatthe only
law instrument
PlantProtection
relevantto the case was the International
bindinginternational
Convention.
35 Appellate Body Report, United States-ImportProhibition of Certain Shrimpand Shrimp
Products,WT/DS58/AB/R,
adopted6 Nov 1998,DSR 1998:VII,2755.
36 Biotech (n 2) para7.72.

CurrentDevelopments
913
to notethatthepresentcase is notone in whichrelevantrulesof internait is important

in therelationsbetweenall partiesto thedispute,butnotbetween
tionallawareapplicable
WTO
all WTOMembers,andin whichall partiesto the disputearguethata multilateral
in the light of these otherrulesof international
law.
agreementshouldbe interpreted
we neednot,anddonot,takea positiononwhetherin sucha situationwe would
Therefore,
lawintoaccount.
be entitledto taketherelevantotherrulesof international
This cited paragraphcan be read in two ways. It appearsin the context of the Panel's
ruling on treaty interpretationunder VCLT Article 31(3)(c),37 and may be read as
obiter dicta that opens up the possibility that all parties to a dispute can agree that a
Panel ought to take certain non-WTO sources into account. Alternatively,it may be
In this second reading,
readas eliding the issues of applicablelaw and interpretation.38
the Panel is contesting whether sources of non-WTO law might be considered as
applicablelaw in a disputeat the WTO. The implicationsof this position are important
for future WTO cases involving conflicting norms but also for the currentdispute.
Althoughuncontroversialwith respectto the Biosafety Protocol,given thatthe EC was
the only disputingpartybound by it, it becomes more problematicwhen one considers
the internationallegal obligations under the CBD, to which three of the disputing
parties were parties, and the precautionaryprinciple, which as a general principle of
law would have applied to all the disputingparties.
The cited paragraphalso calls into question the Panel's approachof merging the
complaintsinto one proceeding.As each set of partieshad differentlegal obligations,it
would have been betterto separatetheirlegal claims and defences. Althoughthis could
have led to differentoutcomes for the differentdisputingparties(where, for example,
the EC's obligationsto the US might have been found to be differentfrom its obligations to Canada,if Canadaandthe EC's applicablerightsandobligationsunderthe CBD
were taken into account), this could have been the right result given the different
substantiveobligationsassumedby them.39
C. TakingAccount of RelevantRules throughTreatyInterpretation
As noted above, the complaining parties based their claims on three WTO covered
agreements:the SPS Agreement,the TBT Agreementand the GATT. Annex A of the
SPS Agreement provides a long and detailed definition of the types of government
of 'theparties'in VCLTArt31(3)(c),paras
37 ThePanelhadalreadygivenits interpretation
7.68-7.70:see furthermy PartC below.
38 Theissuesof applicable
butdistinct:seeReportof the
lawandinterpretation
areinterrelated
of
ILCStudyGroupas finalizedby Koskenniemi
(n 1) para423.Forrecentjudicialconsideration
see CaseConcerningOil Platforms
betweenapplicablelaw andinterpretation,
the relationship
of theICJwas
(Iranv UnitedStatesof America)(2003)42 ILM1334.Inthiscase,thejurisdiction
limitedby the clauseof the 1955 Treatyof Amity,EconomicRelationsandConsularRights
betweentheUnitedStatesandIran.ThequestionwashowfartheCourtcouldrelyon customary
thetermsof thattreaty,a clauseof whichallowedthepartiesto usemeasures
normsin interpreting
the
'necessaryto protectits securityinterests'.The CourtusedVCLTArt 31(3)(c)to interpret
withthe law on the use of forceby referenceto the provisionsof the UN
phrasein accordance
law:see p 1352.JudgeHigginsdisagreedwiththeapproach
international
Charter
andcustomary
of the majority:
see esp pp 1386-7 ('[TheCourt]hasratherinvokedtheconceptof treatyinterto displacetheapplicable
law').
pretation
of VCLTArt30 orArt41. Theseconflictruleswereconsid39 Notealsothepossiblerelevance
see furtherReportof theILCStudy
eredby theILCin thecontextof its workon fragmentation:
(n 1) paras251-66;295-319.
Groupas finalizedby Koskenniemi

914
measures that fall within the disciplines of the SPS Agreement.4 The meaning of
Annex A was therefore central in determiningthe applicabilityof the more onerous
disciplines of the SPS Agreementvis-A-visthe TBT Agreementand the GATT. Terms
like 'pests', 'diseases' and 'toxins' were hotly contestedin the parties' submissions as
to whetherthe EC approvalregime and the safeguardmeasuresto protectagainstrisks
posed by biotechnologywere 'SPS measures'.The meaningof otherWTO treatyterms
such as 'likeness' (ie whetherGM and non-GMwere 'like products'),'risk assessment'
(whether the EC proceduressatisfied the relevant risk assessment requirements)and
'unduedelay' (in assessing the time takenby the EC to approvebiotech products)were
also contestedby the parties.
To determinewhether relevant rules of internationallaw could assist in the interpretationof these treatyterms,the Panel had to follow customarynormsof treatyinterpretation,41which are codified, at least in part,by the VCLT.42The Panel separatedits
task of treatyinterpretationinto two stages. The first stage, isolated early in the report
and deliveredin the 15 pages mentionedabove,43relatedto the use of Article 3 1(1) and
31(3)(c) of the VCLT in determiningwhetherthe CBD, Biosafety Protocolandprecautionary principle were relevant to this dispute. The second stage was the Panel's
substantiveinterpretationof Annex A of the SPS Agreement,which it undertookusing
a wide variety of interpretativetechniques and extrinsic sources of internationallaw,
ostensibly in ascertainingthe 'ordinarymeaning' of treaty terms according to VCLT
Article 31(1). In my view, the Panel separatedits reasoning in this way because of
sensitivities relating to the WTO's treatmentof internationalenvironmentallaw, an
issue of enduringpolitical disagreement.44
1. VCLTArticle 31(3)(c) and 'theparties'
VCLT Article 31(3)(c) allows a treaty-interpreter
to take into account'relevantrulesof
internationallaw applicablein the relationsbetween the parties'.The Panel agreedthat
'rules of internationallaw' could encompass treaties,customaryinternationallaw and,
drawingon US-Shrimp,general principlesof law. As such, it agreed that a treatylike
the Biosafety Protocol would qualify as a rule of internationallaw. So too the precaumeasure-Any
40 AnnexA:1 of the SPS Agreementreads:'1. Sanitaryor phytosanitary
measureapplied:(a) to protectanimalor plantlife or healthwithintheterritory
of theMember
fromrisksarisingfromthe entry,establishment
or spreadof pests,diseases,disease-carrying
(b) to protecthumanor animallife or healthwithinthe
organismsor disease-causing
organisms;
of theMemberfromrisksarisingfromadditives,contaminants,
toxinsor disease-causterritory
in foods,beveragesorfeedstuffs;(c) to protecthumanlife orhealthwithintheterriingorganisms
thereof,
toryof theMemberfromrisksarisingfromdiseasescarriedby animals,plantsorproducts
orfromtheentry,establishment
or spreadof pests;or (d) to preventorlimitotherdamagewithin
theterritory
of theMemberfromtheentry,establishment
or spreadof pests'.
41 DSU Art 3.2 (n 14).
42 TheAppellateBodyhasconsideredVCLTArts31 and32 to haveeachattainedthe status

of rulesof customary
or generalinternational
law:see, respectively,UnitedStates-Standards
for
andConventional
Gasoline(USGasoline),WT/DS2/AB/R
(20 May1996)15-16;
Reformulated
WT/DS10/AB/R,WT/DS11/AB/R
(4 Oct
Japan-TaxesonAlcoholicBeverages,WT/DS8/AB/R,
1996)9.
43 See n 8.
betweenMEAsandthe WTOaresubjectin the provisothatthe negotia44 Therelationship

tions will not affect WTOMemberswho are not partiesto the relevantMEAs:see Doha
Declaration
(n 7).

CurrentDevelopments
915
tionary principle, if established as a general principle of law. The sticking point was,
however, the need for such rules to be 'applicablein the relationsbetween the parties'.
The Panel ruled that 'the parties' meant all the parties to the WTO, ratherthan 'the
disputingparties' or 'one or more parties'.45It found:
Thisunderstanding
of the term'theparties'leadslogicallyto the view thatthe rulesof
law to be takenintoaccountin interpreting
international
theWTOagreements
at issuein
thisdisputearethosewhichareapplicable
in therelationsbetweentheWTOMembers.46
The Panel then pointed to the evidence that the CBD and Biosafety Protocol did not
have the same coverage of membersas the WTO covered agreements;in particular,the
fact that the US had not ratified either.47Moreover, after reviewing recent cases and
commentaryon the precautionaryprinciple,including the Appellate Body's refusal to
take a position on its status as a principleof general or customaryinternationallaw in
the 1998 EC-Hormones decision,48the Panel declined to rule on whetherthe precautionary principle could constitute a relevant rule of internationallaw according to
Article 31(3)(c). The Panel thus disposed of the need to take into accountany relevant
rules of internationallaw accordingto VCLT Article 31(3)(c).
The termsof the VCLT lend compelling supportto the Panel's finding thatrelevant
rules must be applicableto all the partiesto the treatybeing interpreted.VCLT Article
2, for example, defines 'party'as 'a state which has consentedto be boundby the treaty
and for which the treaty is in force'. In addition,the VCLT is intendedto be applied
generallyas well as to disputes.49Moreover,if one considersthe WTO covered agreements to representa 'packagedeal' which is not subjectto reservation,it would follow
thatthe treatiescannotmean differentthings for differentparties.As such, 'consent' of
the entire WTO membershipis a necessary 'entrancecondition' for treatiesthat are to
be relevant as interpretativetools. However, the Panel's approachto Article 31(3)(c)
departedfrom the bulk of the submissionsto it. The complainingpartieshad proceeded
on the basis that 'the parties' meant 'the disputing parties',50 although Canada later
amendedits approach.51The only thirdpartyto make a submissionon this matteralso
focused on the disputingparties.52This understandingof 'the parties' as parties 'to the
dispute' has also been advancedby several commentators.53
One of the main reasons to prefer a readingof Article 31(3)(c) as referringto 'the
disputingparties' is because the alternativeinterpretationrendersit ineffective.54The
45 Biotech(n 2) para7.68.
46 ibid.
47 ibid,paras7.74-7.75.
48 AppellateBodyReport,EC Measures
MeatandMeatProducts(Hormones),
Concerning
WT/DS26/AB/R,
WT/DS48/AB/R,
adopted13 Feb1998,DSR 1998:1,135.
49 McLachlan
(n 31) para16. Thispointwas madeby thePanel,whichnotedthatArticle31
did notpurport
to lay downrulesof interpretation
'whichareapplicablesolelyin thecontextof
international
(quasi-)judicial
proceedings'.The Panelcontrastedthis with VCLTArticle66,
whichdealswithprocedures
forjudicialsettlement,
arbitration
andconciliationandmakesreferenceto 'thepartiesto a dispute':see Biotech(n 2) para7.68,footnote241.
of theUnitedStatesatBiotech(n 2) para4.543;SecondWritten
50 SecondWrittenSubmission
Submissionof Canadaat Biotech(n 2) para4.600;SecondWrittenSubmissionof Argentinaat
52 ThirdPartyOralStatement
of Australia,
ibidpara5.12.
53 PalmeterandMavroidis(n 31) 411. Thisis alsoimplicitin Marceau(n 32) 1087.
was consideredby the ILCto be implicitin the
54 The principleof effectiveinterpretation

916
Panel'sconceptionthattreatiesmustbe applicable
to allWTOMembersrequires
parallels in treatymembership
thataremostlyunrealistic,
especiallywhenthetreatyunder
Inaddition,expressinter
extendsto non-Stateactors,as doestheWTO.55
interpretation
se modification
of WTOobligationsby onlysomeof thepartiesis permitted
underthe
VCLT.56On this basis, some arguethatrecourseto suchinterse agreementsin the
of therelevantWTOagreementshouldnotbe excludedby a restrictive
interpretation
readingof Article31(3)(c).57Moreover,forthoseconcernedaboutthe 'systemicintethatrelevantrulesof international
law
law, the requirement
gration'of international
needto be 'applicablein relationsbetweenWTOMembers'in orderto qualifyunder
Article31(3)(c)will resultin the 'isolation'of multilateral
as 'islands'and
agreements
be contraryto theintentof treaty-makers.58
It wason thisbasisthattheILCStudyGroup,commenting
on theinterimreportin
Biotech,was so criticalof the case.59The StudyGrouppreferredan approachthat
The risksof divergent
of the disputingparties.6?
emphasizedthe treatymembership
wouldbe mitigated,accordingto the StudyGroup,in two ways.First,
interpretations
thetreaty-interpreter
woulddifferentiate
between'synallagmatic'61
treatiesthatcreated
merelyreciprocalobligationsbetweentreatypairsandtreatiesthatweremore'interdependent'or 'collective',whichcreatedobligationsowedergaomnespartes.Forthe
formertype,divergencein treatyinterpretation
for sets of disputingpartieswouldbe
the
latter
the
For
coherenceof thetreatywouldneedto
however,
unproblematic.
type,
be protected
theuseof othertreatiesin interpreting
its terms.62
by restricting
Secondly,
theStudyGroupconsidered
thata treaty-interpreter
shouldtakeintoaccounttheextent
to whichanotherrelevanttreatycouldbe saidto havebeen 'implicitly'acceptedor
toleratedby other parties,notwithstanding
non-identicalmembership.63
The final
conclusionsof the ILC StudyGroupreflectedthis secondqualification.64
The ILC
of goodfaithin accordance
doctrine
of interpretation
withtheordinary
of thetext,and
meaning
wastherefore
notgivenseparate
in theVCLT:see [1996]Ybkof theInternational
Law
expression
Vol II, p 219, para6. Forfurtherreferencesto theAppellateBody'sapplication
Commission
of
theprinciple,see Korea-DefinitiveSafeguardMeasureson Importsof CertainDairyProducts,
WT/DS98/AB/R,
p 24.
whicharesimplyunable
55 The 'partiesto theWTOAgreement'includecustomsterritories,
to be partiesto treatieslike theCBD,thusrendering
Art31(3)(c)inutileif it canonlybe applied
to treatiesof identicalmembership.
theVCLTin thelightof the (differOf course,interpreting
to interpretation
too far.
ent)partiesto theWTOmightbe takinganevolutionary
approach
56 VCLTArt41. See alsoVCLTArt30 and59.
57 L Bartels,'ArticleXX of GATTandtheProblemof Extraterritorial
Jurisdiction'
(2002)36
J of WorldTrade353, 360-1. Bartelsconsidersthat,unliketheEC,theWTOsystemis founded
on regulatory
of WTOrules:ibid.
diversityanddoesnotcall fortheuniforminterpretation
58 Reportof theILCStudyGroupas finalizedby Koskenniemi
(n 1) para471.
59 ibid para450: 'Thepanelbuyswhatit calls the "consistency"
of its interpretation
of the
WTOTreatyatthecostof theconsistencyof themultilateral
treatysystemas a whole.'
60 ibidpara472: 'A bettersolution[fortheuseof treatiesunderVCLTArticle31(3)(c)]is to
permitreferenceto anothertreatyprovidedthatthepartiesin disputearealsopartiesto thatother
61 ibid.
treaty.'
62 See Pauwelyn(n 31) 440-86; and Pauwelyn,'A Typology of MultilateralTreaty

AreWTOObligations
Bilateralor Collectivein Nature'(2003) 14 EJIL907; and,
Obligations:
more recently, C Carmody,'WTO Obligationsas Collective' (2006) 17 EJIL419.

63 TheStudyGroupconsidered
theAppellateBodyReportin US-Shrimp
to be demonstrative
of thisapproach.
werepublished
in a separate
document
fromtheReport:see
64 TheStudyGroup'sconclusions
of theWorkof theStudyGroup,A/CN.4/L.702
Conclusions
(18 July2006).

CurrentDevelopments
917
Conclusion (21) suggests that the probativevalue of a treatyincreases accordingto the

degree to which it has been affirmedby States.65
Article 31(3)(c) also requiresthe interpreterto consider other treaty-basedrules so
as to arriveat a consistent meaning.Such otherrules are of particular relevance where
parties to the treaty under interpretationare also partiesto the other treaty, where the
treaty rule has passed into or expresses customary internationallaw or where they
provide evidence of the common understandingof the parties as to the object and
purposeof the treatyunderinterpretationor as to the meaning of a particularterm.
On one reading at least, ILC Conclusion (21) appears to endorse a spectrum of
'internationalconsensus' that departs from basing VCLT Article 31(3)(c) on binary
questions of consent and non-consent.If conceived to mean that total unanimityof the
WTO membershipis not requiredfor an extrinsic treatyto be agreed as relevantinterpretativecontext, ILC Conclusion (21) accords, to some degree, with certain institutional provisions in the WTO covered agreements.For example, revisions of the WTO
Agreementallow three-quartersof the total WTO membershipto adoptbinding interpretations.66The spectrumof consensus is also implicit in some cases. For example,
the EuropeanCourtof Justice looked to a non-bindinginternationaltreatyin construing the EC treatyin an early waste treatmentcase.67
ILC Conclusion (21) may be read, instead, as emphasizingthe need for 'implicit'
agreement of treaty terms. A similar approachwas followed by an arbitratorin the
OSPAR arbitrationbetween Irelandand the UK.68GavanGriffithQC, in dissent, drew
on the AarhusConvention,69which was not binding between the disputingparties,in
interpretingthe relevant obligations of the parties under the OSPAR Convention.70
Griffithbased his approachon the value of the AarhusConventionas evidence of the
OSPAR parties'intentions,made manifestby the fact that the disputingpartieswere at
least signatoriesto the AarhusConvention.71
This emphasis on implicit agreementas a necessary ingredientto the use of nonWTO sources underArticle 31(3)(c) is also supportedby otherpartsof the generalrule
on interpretation.VCLT Article 31(3)(b) recognizes the use by treatyinterpretersof the
subsequent practice of treaty parties as an interpretativetool.72 Some authors have
65 ibid 15,para(21).
of the WTOAgreementcanbe adoptedby the Ministerial
Conferenceand
66 Interpretations
the GeneralCouncil:Marakkesh
the WTO,ArtIX(2.See also the fact
AgreementEstablishing
thatinternational
standards
canbecomebindingon WTOmembersevenif theyarenotagreedby
consensus:thisis dealtwithbelow,n 153,andsurrounding
text.
67 CaseC-2/90 Commission
v Belgium(9 July1992)para35. TheCourttookaccountof the
BaselConventionof 22 March1989on the controlof transboundary
movementsof hazardous
wastesandtheirdisposal.TheConvention
was not in forceat the timeof thejudgmentandthe
wasonlya signatory.
Community
68 Permanent
Courtof Arbitration:
Accessto Information
underArt9 of
DisputeConcerning
Award(2 July2003)(2003)42 ILM
theOSPARConvention:
Irelandv UnitedKingdom--Final
1118.
in Decision-Making
andAccess
on Accessto Information,
PublicParticipation
69 Convention
to Justicein Environmental
Matters(25 June1998)(1999)38 ILM517.
70 Conventionfor the Protectionof the MarineEnvironment
Atlantic(22
of the North-East
Sept1992)(1992)32 ILM1069.
of the VCLT:see Irelandv United
independent
71 Griffithdrewon rulesof interpretation
Kingdom-FinalAward(2 July2003)(2003)42 ILM1118,1163.
72 VCLTArt31(3)(b)provides
thatsubsequent
practicemaybe takenintoaccountin interpret'theagreement
of thepartiesregarding
its interpretation'.
inga treatyif thepracticehasestablished

918
suggested that such subsequentpracticemay be probativeeven if it is only evidenced

by individualparties.73For the Appellate Body, the 'implied' agreementof all of the
WTO Membersis necessary to establish subsequentpractice,even if the practicehas
not been engaged in by all parties.74
The Biotech Panel did not entertainnotions of "consensusspectrums"or "implicit
agreement"in its reading of VCLT Article 31(3)(c),75 as set out above. However,
perhapsin recognitionof the tension between the apparentdoctrinalcorrectnessof its
interpretationof "the parties"and its restrictiveeffects, and also because it was still to
reconcile the Appellate Body's decision in US-Shrimp,the Panel went on to consider
an alternativeaspect of the VCLT rule of interpretation,namely Article 31(1).
2. VCLTArticle 31(1) and 'OrdinaryMeaning'
In considering an alternativebasis to Article 31(3)(c) for the considerationof nonWTO law in interpretingthe covered agreements,the Panel turnedto VCLT Article
31(1).76The Panel consideredthat Article 31(1) allowed for the use of rules of internationallaw that were not binding on the partieswhere those rules providedevidence
of the 'ordinarymeaning' of the treatyterms and were thus 'informative'.77Extending
the well-known relianceby WTO panels on language dictionariesin finding the 'ordinarymeaning' of terms,78the Panel thus incorporatedinternationallaw instrumentsas
sources of linguistic guidance. The Panel considered that this approachwould not
'mandate' a considerationof relevant rules of internationallaw, as compared with
Article 31(3)(c).79 However, if a rule of internationallaw could 'shed light on the
meaning and scope of a treatyterm to be interpreted',a Panel may have regardto it.80
The Panel found its approachto be consistent with the Appellate Body's use of relevant rules of internationallaw that were not binding on all parties in US-Shrimpand
declared:'the mere fact that one or more disputingpartiesare not partiesto a convention does not necessarilymean that a conventioncannot shed light on the meaningand
scope of a treaty term to be interpreted'.81The Panel stated that it had given careful
Law(6thedn,OUP,Oxford,2003)605.
Brownlie,Principlesof PublicInternational
74 AppellateBodyReport,EuropeanCommunities-Customs
Classification
of FrozenBoneless
ChickenCuts,WT/DS269/AB/R,
WT/DS286/AB/R
(27 Sept2005)para273.
75 TheBiotechPanelconsidered
thisconstruction
of Art31(3)(b)to be supportive
of its interof Art31(3)(c):see Biotech(n 2) para7.68,note243.
pretation
76 VCLTArt31(1)provides:'A treatyshallbe interpreted
in goodfaithin accordance
withthe
ordinary
meaningto be givento thetermsof thetreatyin theircontextandin thelightof itsobject
andpurpose.
has beencriticizedas an over78 Theuse by WTOdisputesettlementbodiesof dictionaries
textualapproach:
see H HornandJHHWeiler,'European
of
Description
Communities--Trade
Sardines:
Textualism
andits Discontent'in H HornandPCMavroidis(eds)TheWTOCaseLaw
of
2003)248. TheAppellateBodyhasnoddedtowardsthelimitations
of 2002(CUP,Cambridge,
dictionaries:
see, eg, Canada-Measures
AffectingExportof CivilianAircraft,WT/DS70/AB/R
questionsopen.'
para153:'Clearly,however,dictionary
meaningsleavemanyinterpretative
79 ibid,cf para7.69.
80 ibid,para7.95.
in a footnote:'Equally,in a case whereall disputing
81 ibid,para7.92. ThePanelcontinued
thisfactwouldnotnecessarily
renderrelianceon thatconvenpartiesarepartiesto a convention,
tionappropriate.'
Thisis presumably
a furtherexampleof thePanel'sreticenceto frametheproblem in termsof applicable
text.
law,discussedabove(n 36) andsurrounding
73

CurrentDevelopments
919
considerationto various provisions of the CBD and the Biosafety Protocol on this
basis. It concluded that it did not find it 'necessary or appropriateto rely on these
particularprovisions in interpretingthe WTO agreementsat issue in this dispute'.82
Materialsthat did assist the Panel in interpretingcertain terms of Annex A of the
SPS Agreement, in accordancewith VCLT Article 31(1), were said to be reference
materialsprovided to it by several internationalorganizations,namely Codex, FAO,
the IPPCSecretariat,
andUNEP.83Thesematerials
WHO,OIE,the CBD Secretariat
included conventions, standardsand guidelines of these internationalorganizations,in
additionto glossaries andreferenceworks.84The Panel had consultedwith these internationalorganizationsduringthe course of the dispute.85It was this body of materials
that informed the Panel in its far-reachinginterpretationof Annex A of the SPS
Agreement, which formed the bulk of its reasoning on the applicability of the SPS
Agreementto this dispute.
The Panel's approachto VCLT Article 31(1) is logically attractivegiven that 'ordinary meaning' is not a matterof consent, but ratherof intersubjectivity.Meaning in
languageis not dependenton the consent of participants,but ratherdevelops according
to social practices within a community. Given the implied reliance on the concept of
an internationalcommunity, the Panel's approachmay seem appealing to those who
call for the systemic integrationof internationalnorms.86It negates the need to establish the consent of treatypartieswhen taking into account other treatiesthat, notwithstanding dissimilar treaty membership from the treaty being interpreted, are
representativeof 'ordinarymeaning'. Of relevanceis not whetherWTO membershave
ratified the relevantrule, but whether it is 'informative'by dint of its representativeness of ordinarymeaningwithin the internationalcommunity,or, at least, to the treatyinterpreter.The following section will examine this notion of 'informative'rules and
analyse the Panel's use of them. But first it is importantto ascertainthe doctrinalbasis
for the Panel's approach.
(a) Doctrinal supportfor the use of extrinsic materials to interpreta treaty term in
accordance with its 'ordinarymeaning'
The Panel claimed doctrinal support for its use of VCLT Article 31(1) from
US-Shrimp,in which the Appellate Body used relevantrules of internationallaw for a
numberof interpretativepurposes,without ascertainingwhethersuch rules were binding on the disputingpartiesor, indeed, the WTO membershipas a whole. In determining, for example, whether the term 'exhaustible naturalresources' in Article XX (g)
GATT 1994 included endangeredturtles,the Appellate Body consideredthat the text
was not determinativeand sought the aid of interpretativetools.
The Panel's pigeon-holing of the Appellate Body's reasoning to VCLT Article
31(1) is questionable. In US-Shrimp, the Appellate Body did not refer directly to
82 ibid,para7.95.
83 ibid,para7.96.
85 See PartD below.
84 ibid.
86 McLachlan
(n 31) para17: 'referencemayproperlybe madeto othertreaties,evenif they
arenot in forcebetweenthe litigatingparties,as evidenceof the commonunderstanding
of the
to theoverallrequirement
partiesas to themeaningof thetermsused.Thismaybe donepursuant
of Article31(1)to considertheobjectandpurposeof thetreaty.'Butsee Reportof theILCStudy
Groupas finalizedby Koskenniemi(n 1) para450: 'taking"othertreaties"into accountas
evidenceof "ordinary
the"clinicalisolameaning"
appearsa rathercontrivedwayof preventing
tion"as emphasized
by theAppellateBody.'

920
particularparagraphnumbersof the VCLT in its interpretationof 'exhaustiblenatural

resources'.87This is consistent with the status of VCLT Article 31 as a general rule
(ratherthan rules),88or, alternatively,due to the location of the Appellate Body's
approachto treaty interpretationin the wider corpus of interpretativenorms found in
customaryinternationallaw.89 If one does wish to fit the Appellate Body's nuanced
approach to treaty interpretationinto specific paragraphnumbers of the VCLT,
however, its interpretationof 'exhaustiblenaturalresources'could be said to fall within
VCLT Article 31(1),9 Article 31(2),91Article 31(3)(b)92and/orArticle 32.93In addition, Article 31(3)(c) might be said to have been relevant in allowing for the use of
treaties that reflect the "common intentions"of WTO members.94Thus, the Panel's
claim thatArticle 31(1) is the only relevantavenue for the use as interpretativetools of
treatiesthat are not binding on all WTO membersis subjectto doubt.
A readingof the terms of VCLT Article 31(1) also casts doubt on the Panel's view
that VCLT Article 31(1) allows recourseto relevantrules of internationallaw to determine 'ordinarymeaning'. 'Ordinarymeaning' is a seductively simple phrase,suggesting a natural meaning and masking the fact that a different understandingof the
meaningof terms is likely to be the root of the conflict.95This limitationis recognized
by the VCLT. Article 31(1) acknowledges that a tready's terms cannot be ascertained
in the abstractby requiringthat the ordinarymeaning of terms be interpreted'in their
context'. The key question is thereforeto ascertainwhich contextualboundariesare
of the
87 The AppellateBody did referto VCLTArts31(3)(c)and 32 in its interpretation
guidance,as appropriate,
interpretative
chapeauof GATTArtXX,forwhichit sought'additional
law':see paras157-8.
fromthegeneralprinciplesof international
88 See A Aust, Modern TreatyLaw and Practice (CUP, Cambridge,2000) 186-7.
89 See, eg, its interpretation

in ArticleXX(g)is not
resources"
thatthe 'genericterm"natural
"static"in its contentorreferencebutis rather"bydefinition,evolutionary"'
[footnotesomitted]:
US-Shrimp(n 35) para 130.
withVCLTArt 31(1),the AppellateBody consideredthe term'exhaustible

90 Consistently
did not ordinaturalresources'accordingto its ordinarymeaning,andfoundthat'exhaustible'
ibidpara128.Moreover,the goodfaithandobjectandpurposetest
narilyexclude'renewable':
relevantto theAppellateBody'srelianceat para131on theprincipleof
of Art31 is particularly
see furtherYearbookof theILC(n 54).
effectiveness:
to the
referencein theWTOAgreement
91 eg it foundtherelevantcontextin thepreambular
This necessitated'exhaustiblenaturalresources'to be
development'.
principleof 'sustainable
concerns:US-Shrimp
readaccordingto contemporary
(n 35), para129.
92 See, eg, theAppellateBody'sconsideration
of the subsequent
practiceof theinternational
in enteringvariousinternational
includingUNCLOS,CBDandAgenda
agreements,
community
whethertheseweresignedby parties):ibidpara130.Inaddition,thetwo
21 (withoutconsidering
mightbe saidto constitute
adoptedGATTreportscitedby the Panelin supportof its approach
to VCLTArt31(3)(b):ibidpara131.
practiceaccording
subsequent
of 'naturalresources'thatfailedto updateit
93 eg it wouldbe manifestthatan interpretation
or absurd.Also falling
ecologicalconcernswouldbe unreasonable
accordingto contemporary
withinArt32 mightbe theuse madeby theAppellateBodyof thedraftinghistoryof theGATT,
thattheframersintendedto exclude'living'natural
whichit footnotedas failingto demonstrate
resourcesfromthescopeof ArtXX(g):ibidfootnote114.
94 See,eg, Pauwelyn(n 31) 260;Bartels(n 57) 354.
95 H Lauterpacht,TheDevelopmentof InternationalLaw by the InternationalCourt(Frederick
in substantial
termshis 'A Noteon theDoctrine
A Prager,New York,1958)52-60, reproducing
Law:(1950)42
to theInstituteof International
of "PlainMeaning"'(1950),whichhe submitted
natureof meaninghasbeena preoccuAnnuear377-90. Indeed,thecontextualandcontestable
as
pationof manydisciplinesof academicthought.Mostnotably,theideabehinddeconstruction,
foundforexamplein theworksof Derrida,is thatwordsortermsalwaysandnecessarilydeferto
otherdifferenttermsin a conceivablyendlessprocess.

CurrentDevelopments
921
imposed by the system itself. In the VCLT, the allowable context is narrowlydefined
by Article 31(2) as the body of textual materialgeneratedduringthe conclusion of the
treaty.96Accordingto the rest of the VCLT's rule of interpretation,the only otherrelevant extrinsic materials are those developed subsequentlyby the parties evidencing
their common intentions,(includingwith respect to a 'special meaning' to be given to
a term),97and supplementarymeans where interpretationunder Article 31 leaves the
meaning 'ambiguous or obscure' or leads to a result 'which is manifestly absurdor
unreasonable'.98Thus other extrinsic materials,such as informativeinternationallaw
materials and even, perhaps,dictionaries,are not considered to be relevant to establishing 'ordinarymeaning'. These contextual boundarieswere ignored by the Panel,
which insteadsought guidancefrom 'informative'texts to bringto an end its searchfor
'ordinary
meaning'.
In my view, the Panel would have been more convincing if it had relied on the
purposiveelement of VCLT Article 31(1) ratherthan its referenceto 'ordinarymeaning'. Treaties that are not binding on all WTO Members may still be relevant, for
aboutthe object and purposeof a treaty.99The
example, to inform a treaty-interpreter
object and purposeof a treatyregulatingthe apple tradewill be more easily found to
exclude the orange trade if a substantialpredecessor treaty exists for the trade in
oranges, even if membershipof the two treaties is not identical. On this reading, the
fact that the CBD parties, most of whom are WTO members, were negotiating a
Protocol on Biosafety at the time of the SPS Agreementcould be rebuttableevidence
that the object and purposeof the SPS Agreementwas to exclude rules and disciplines
on SPS measuresaimed at biotech products.100The principlesof 'sustainabledevelopment' and 'mutualsupportiveness'that have been endorsedby WTO memberswould
also be relevantto this purposiveinquiry.101
96
meansto interpret
thephrase'ordinary
Althoughit mayseemoddto turnto supplementary
ontheVCLT.
meaning',I notethatthisreadingis confirmed
by referenceto theILCCommentary
TheILCdidnotappearto anticipate
thatthe 'ordinary
meaning'wouldnecessitatethereference
to any extrinsic texts beyond those texts that established the 'context' of the treatyin Art 31(2):
see Yearbookof theILC(n 54) 221,para12.

97 VCLTArt31(3);Art31(4).
98 ibid Art 32.

99 In advocatingthe use of Art 31(1) as partof a process of systemic integration,McLachlan
points to both its purposiveaspects as well as the 'ordinarymeaning': McLachlan(n 31) para 17:
'In many cases, this kind of purposiveenquiry[of Art 31(1) and 31(4)] will providea betterexplanation for decisions referringto other treaties within the WTO DSU than Article 31(3)(c) itself.
The open-texturedlanguage of exclusions in the Covered Agreements themselves calls for a
programmaticinterpretationwhich may properlytake account of other materialsources of international law. In doing so, the tribunalis using other treaties not so much as sources of binding
law, but as a ratherelaboratelaw dictionary.'McLachlanadvances this argumentas a qualification to his restrictiveinterpretationof the term 'the parties' in Art 31(3)(c), an interpretationthat
was also adoptedby the Panel. His other qualificationrelates to the applicablelaw between the
disputingparties,as describedabove at n 31 and surroundingtext.
100 This evidence would be rebuttedby the 'savings clause' in the Biosafety Protocol, which
states that WTO rights are not to be affected: see furtherSafrin (n 33).
101 On the goal of 'sustainable development', which is recognized in the Preamble to the
MarrakeshAgreementEstablishing the WTO,see US-Shrimp. Recent literatureemphasizes the
(eds),
integrativenatureof this principle:see MC CordonierSeggerand CG Weeramantry
Sustainable Development: Reconciling Economic, Social and EnvironmentalLaw (Martinus
Nijhoff, The Hague, 2004), which I reviewed in (2007) 56 ICLQ209. On 'mutualsupportiveness'
see below n 150 and surroundingtext.

922
In summary,I havequestionedthebasisof the Panel'suse of VCLTArticle31(1)

on thegroundsof thetextitselfandby referenceto thejurisprudence
on whichit relied.
The Panelfoundadditionalsupportfor its use of non-WTOsourcesunderVCLT
Article31(1),however,fromits consultations
withinternational
These
organizations.
consultations
wereconductedwiththe close involvementof the disputingparties.As
intothe 'ordinary
such,themodeof thePanel'sinvestigation
meaning'of treatyterms
dependedheavilyon the disputingparties.Paradoxically,
given the flurryover the
meaningof 'theparties',the consentof the 'disputingparties',ratherthanconsentof
the 'WTOmembers',thuscontinuedto influencethe Panel'staskof treatyinterpretation.I will examinethisissuemorefullyin thenextPart.102
First,however,it is necesthepracticalproblemsinherentin thePanel'sconceptionof Article
saryto demonstrate
31(1).
(b) ThePanel'suseof extrinsicmaterialsto interpreta treatytermin accordancewith

its 'ordinary
meaning'
As notedabove,103
thePanelappliedits conceptionof VCLTArticle31(1)to theinterpretationof certaintermsin AnnexA to the SPS Agreement.The meaningof these
termswouldcometo determinethe applicability
to the SPS Agreement--rather
than
the TBT Agreement or the GATT-to the challenged measures of the EC and its
MemberStatesand the natureof the requiredrisk assessment.The Panelgave an

I have selectedsevenexamplesof
to AnnexA measures.1'"
expansiveinterpretation
thePanel'suse of non-WTOsourcesin its interpretation
of AnnexA termsto demonstratethedangersof an over-inclusive
use of extrinsicmaterials.'05
TheSPSAgreementapplies,amongstotherthings,to certaingovernment
measures
aimedat protecting
human,animalor plantlife or healthfromthespreadof 'pests'.106
The EC argued that measures aimed at reducing risks from biotech productsdid not
relate to the spreadof pests. To this end, the EC submittedthat the definition of 'pests'
in the InternationalPlant ProtectionConvention (IPPC)107was a relevant context for
the purposes of interpretingthe term 'pest'.os18The IPPC defines pests as '[a]ny
species, strainor biotype of plant,animalor pathogenicagent injuriousto plantor plant
products'.The Panel found this definition to be informativebut not dispositive of the
meaning of 'pests'.109It instead drew on the dictionarydefinition of 'pests' as 'troublesome or annoying'. As such, 'pests' in the SPS Agreementdid not have to be 'injurious' but could be anythingwith troublesomeor annoying characteristics.110
On this
102See belown 146andsurrounding
text.
103 See aboven 83 and
text.
surrounding
of Expanding
104 J Peel,'A GMOby AnyOtherName... MightBe anSPSRisk!:Implications
the Scopeof theWTOSanitaryandPhytosanitary
MeasuresAgreement'(2006) 17 EJIL1. But
notethatCanadaconsidered
theresultof thePanelto be anoverlynarrowinterpretation
of Annex
A: see DSBMeeting21 Nov 2006 (WT/DSB/M222)
para66.
of AnnexA termscanbe
examination
of thePanel'sinterpretation
105A morecomprehensive
foundin Peel,ibid.
106SPSAgreement,
AnnexA (a),(c),(d).
107Revisionsto theIPPCwereapprovedat theFAOin 1997to reflecttheroleof theIPPCin

relationto the UruguayRoundAgreementsof the WTO,particularly
the SPS Agreement.
The
new revisedtext enteredinto forceon 2 October2005. See further<https://www.ippc.int/IPP/
(accessed20 July2007).
En/default.jsp>
110ibid.
109 ibidpara7.241.

CurrentDevelopments
923
basis, GM plants were considered 'pests' within the meaningof Annex A in situations
where they did not cause injurybut, for example, grew where they were undesired.111
This interpretationwas to have profoundeffects for the wide applicabilityof the SPS
Agreementto the EC Member-Statesafeguardmeasureson biotech products.112
A second example of the Panel's reasoning is drawnfrom its interpretationof the
term 'diseases', which featuredin Annex A with respect to animals or plants. The EC
cited the definition of the World Organizationfor Animal Health (OIE) that disease is
'the clinical and/orpathological manifestationof infection'. This definition supported
its argumentthat its biotech approval regime did not address the risks identified in
Annex A because GMOs were not diseases or disease-carryingorganisms. As one of
the standard-settinginstitutionsrecognized by the SPS Agreement,I consider that the
OIE was well chosen as representativeof the internationalhealth and safety context for
animals and plants. However, the Panel instead turnedto the dictionarydefinition of
disease as a 'disorder'and drew also on the World Health Organization(an organization aimed at human ratherthan animal health). On the basis of this wide reading of
'disease', the Panel concluded that an approvalregime that sought to avoid adverse
effects that might arise from the deliberate release of GMOs into the environment
constituteda measureapplied to protect animal or plant life or health from risks arising from disease.113
Furtherexamples of the Panel's reasoningcan be identified from the Panel's interpretationof Annex A(1)(b) of the SPS Agreement,which covers measuresapplied 'to
protect human or animal life or health within the territoryof the Member from risks
arising from additives, contaminants,toxins or disease-causing organisms in foods,
beverages or feedstuffs'.114The third example of the seven listed here relates to the
Panel's reasoning as to whetherthe challenged measuresrelated to 'foods, beverages
or feedstuffs'. The EC submittedthat GM seeds used in agriculturewere not covered
by this provision.115The Panel referredto the dictionarydefinition of 'food' as nutrition for humans or animals (without considering the object and purpose of the SPS
Agreement with respect to food safety) and consideredthat, for example, if the pollen
from a GM crop was consumed by an insect or if a GM plant was consumed by deer,
this would be consideredas 'food'.116On the basis of this finding, the Panel found that
several of the Member-Statesafeguardmeasuresfell within Annex A(1)(b).117
The fourthexample relates to the Panel's determinationthat the EC's measureson
biotech productsamountedto protectionfrom 'additives'. Codex defines an additiveas
a substancethatis addedto 'food', ratherthan a substancewhich is addedto plants and
which may find its way into food. The EC submittedthat this definition was determi-
included'situationsof unintentional
geneflow or transfer
111 ibidpara7.242.Othersituations
betweenGMplantsandotherplants
froma GMOplant("out-crossing")
leadingto cross-breeds
... GM
traits"'and 'situationswherepesticide-producing
... whichhaveundesiredintroduced
in targetorganisms,
plantsincreasethe potentialfor the developmentof pesticide-resistance
notablyinsects'.
112 See ibidparas7.2677-7,2678(Austria);
para7.2726(France);paras7.2787-2788;7.2791
andparas7.2828,7.2833(Greece).
(Germany);
para7.2906(Luxembourg);
113 Biotech(n 2) paras7.277-7.278.
114Aboven 40.
"115
116ibidparas7.291-7.292.
117 ibidparas7.2630,7.2676(Austria),
para7.2837(Greece).
para7.2786(Germany);

924
native that the GM productsrelevantto the dispute were not 'additives'.118The Panel
noted thatthe incorporationof Codex standardsby the harmonizationprovisionsof the
SPS Agreement did not mean that Codex definitions were necessary to take into
accountin ascertainingthe meaningof Annex A terms.119It drew insteadon the dictionary definition of an additive as 'a substanceadded to anotherso as to give it special
qualities'120and concluded that genes intentionallyadded to GM plants (where the
plants are to be eaten) can be consideredas additives.121
Fifthly, the Panel adoptedsimilar reasoningwhen it found that the term 'contaminants' covered broadersituationsthanenvisaged by the relevantCodex definition.The
Panel extendedthe term to 'proteinsunintentionallyproducedin GM plants which are
eaten or used in the productionof food or feedstuffs'.122Sixthly, the Panel drew on the
dictionary definition of 'toxin' in addition to definitions from the Codex and the
FAO123as supportfor its propositionthat toxins did not necessarily have to be added
unintentionallyto foods; the fact that a GM plant (earlier defined as 'food') might
intentionallyproducea toxin to ward off insects did not remove it from the definition
of toxin in Annex A(1)(b). As a final example,124the Panel consideredthat this definition of 'toxin' was also relevant to the EC's targetingof the risk that GM products
might give rise to allergicreactions.In assessing whetherthis aspectof the EC approval
regime constitutedan SPS measure,the Panel noted thatthere is no referenceto 'allergens' as one of the groundsof risk in Annex A(1)(b). It noted that the draftersof the
SPS were aware of food allergenicityconcerns,125but consideredthat the absence of
the term 'allergens' did not 'reflect a deliberatechoice to exempt food allergenicity
risks from the scope of the SPS Agreement'.126Instead, the Panel found that the
draftershad consideredfood allergensto fall within 'toxins'.127For this interpretation,
the Panel relied on the dictionary and a definition of allergen as 'an antigen that
provokes an immune response"' from the FAO Glossary of Biotechnology for Food
and Agriculture.128The Panel considered that food allergens were akin to poisonous
substances in the harm they could cause to humans; as such, they could fall within
Annex A(1) as 'toxins'.129For allergic reactionscaused by exposure to GM unrelated
to food consumption,the Panel drew on its earlierinterpretationof the IPPCanddictionary definition of 'pest' and found that 'to the extent that a GM plant produces allergenic effects otherthan as food, it would be a plant which causes harmto the healthof
humansand, as such, would qualify as a "pest"'.130
These seven examples demonstratethat an approachthat draws on extrinsic materials to informan 'ordinarymeaning' of a termmay lead to de-contextualizedand arbitraryreasoning.The Panel failed to meet the challenge of moving beyond the abstract
meanings of the terms in Annex A towards a disciplined and reasoned use of other
118 ibid para7.295.

120 ibid para7.297.
119 ibid para7.300.

121 ibid
para7.301.
125 ibid para7.333.
126 ibid.
122ibidparas7.305-7.316
123ibidpara7.321.
124Therearemanyotherexamplesof thePanel'sinterpretation
of AnnexA terms:see, eg, ibid
paras7.147-7.437.
128ibidpara7.334.
127ibid.See alsopara7.337.
129 Thisreasoning
was appliedto theAustriasafeguard
measureon B-176:ibidparas7.2643,
7.2783.
130 ibid
para7.350.

CurrentDevelopments
925
'informative' materials.131For example, it is controversialthat a WHO definition of

'disease' was more relevantthan the OIE to defining risks of animalor plant diseases.
In addition, a common dictionarydefinition of 'pests' should be subordinatedto an
IPPC standardfor plant safety, given the relationshipbetween the IPPC and the SPS
Agreement. Moreover, the Panel's controversialinterpretationof the drafters' intent
with respect to the absence of the term 'allergens' from Annex A should have instead
followed the VCLT rules of interpretation,particularlywith respect to supplementary
materials,instead of relying on a quest for 'ordinarymeaning' by referenceto dictionary definitions. The seven examples offered above demonstratethe difficulties and
dangersof finding an 'ordinarymeaning' within a diverse internationalcontext.
As explained above, the Panel's interpretationof VCLT Article 31(3)(c) confirmed
that 'consent' was an entrancecondition for the use by a dispute settlementbody of
internationallaw as interpretativetools. Its use of VCLTArticle31(1), on the otherhand,
removedthe needto establishthe consentof the WTOmembershipfor non-WTOsources
to be used in interpretingWTO terms.In my view, the Panel substitutedthe entrance
condition of 'consent' for 'relevance' so that extrinsic materialscould be taken into
account if they were informativeof the 'ordinarymeaning'of WTO treatyterms. This
conceptof relevancehas greatpromisefor improveddecision-making,as it does in many
areas of domestic law.132Yet the practicalexamples of the Panel's interpretationof
Annex A of the SPS Agreementidentifiedabove are not convincing.But these examples
demonstratea need to reconsider 'entranceconditions' in WTO disputes to provide
of WTOtermsby referenceto nonnecessaryguidanceandrestraintfor the interpretation
WTO sources.Ideasfor such entranceconditionsmay be provokedby an examinationof
some of the WTO's institutionalprovisionsfor consultationand coexistence with internationalorganizations,which is the subjectof the next Part.
D. TakingAccountof RelevantRulesthroughConsultation
As alreadynoted, the Panel obtainedmuch of the extrinsicmaterialthat was to become
relevantto its interpretationof Annex A termsthroughconsultationswith international
organizations.133In fact, the Panel obtained informationfrom a range of individuals
and bodies, which fell broadlyinto three groups:internationalorganizations,scientific
and technical experts and those interested parties who filed amicus briefs.134The
empoweringprovisionsfor these consultationswere cited as Article 13.1 DSU, Article
11.2 SPS Agreement, Articles 14.2 and 14.3 TBT Agreement, and, in the case of the
amici, the Panel's broaddiscretion.135
131 Foran accountof thatchallenge,see SecondWrittenSubmissionsof the EC, ibid
para
4.748: 'it is clear that the "commonand ordinary"meaningapproachadvocated,in some
instances,by thecomplaining
definitions,wouldnot
parties,to theexclusionof theinternational
be sufficient.Thecommonlanguagedefinitionsof SPStermsareoftenso vagueandbroadas to
depriveof anymeaningthe categoriesanddistinctionsset out in AnnexA.1. Forinstance,the
definitionproposedby theUnitedStatesof theterm"toxin"("anysubstancewhich,whenintroducedintoorabsorbed
by a livingorganism,
destroyslife orinjurieshealth")is capableof encompassinganything,froma chemicalresidueto a leadbullet.'
132 Specialregard
familiarto manyadministrative
maybe hadto principles
lawyers,suchas the
of failuresby decision-makers
to takerelevantconsiderations
intoaccount.
judicialreviewability
133 Biotech(n 2) para7.96, aboven 83 andsurrounding
text.
134 As described
to the Panel;one was froma
above, threeunsolicitedbriefsweresubmitted
groupof universityprofessorsandtheothertwo werefromcoalitionsof NGOs.
135Biotech(n 2) para7.11,citingUS-Shrimp.

926
Of relevancehere is how these consultationsrelatedto the Panel's use of non-WTO

sources. To begin with, althoughthe Panel acceptedthe amicus briefs on the record,it
did not find it necessaryto take them into account.136The consultationswith scientific
and technicalexperts were more influentialin bringingnon-WTOsources of law to the
Panel's attention.The EC had argued that these experts should be consulted on the
meaning of certainterms in the SPS Agreement.The complainingpartiesopposed this
request on the basis that the terms were to be assessed by applying the rules of treaty
The Panel appearedto uphold the complaining parties' opposition
interpretation.137
and limited its requests to the experts to three categories of scientific and technical
informationsurroundingthe productsat issue in the dispute.138The Panel expected the
experts, however, to draw on rules and guidelines of internationalorganizationsin
providingtheir advice.139The Panel's representationof the experts' evidence was then
overseen by the disputingparties.140
It was through its consultations with internationalorganizations that the Panel
delved most deeply into sourcesof non-WTOlaw. The Panel first consultedthese organizationson the selection of scientific experts.141Next, the Panel askedthem to provide
referencedocumentsand other materialsto 'assist the Panel in ascertainingthe meaning of certainterms and concepts'.142Two aspects of these consultationsare worthy of
note. First, notwithstandingthe articulationof its general power to consult, the Panel
emphasizedthat its use of the relevant internationalrules and guidelines was empowered by the need to ascertainthe 'ordinarymeaning' of Annex A terms.143As such,
VCLT Article 31(1) acted as a 'gatekeeper' to the information obtained through
consultation.Secondly, the Panel was carefulto stress that in conductingthese consultations, it had taken into account the views of the disputing parties.'44While this
approachis reasonable in an adversarialprocedure,there was arguably no need to
consult the disputingpartiesin this way given the Panel's wide powers to seek information. Instead, this partialdeference to the disputingparties demonstratesthe influence of the disputingpartiesin the conductof the consultationsand, consequently,their
influence in the interpretationof treatyterms accordingto VCLT Art 31(1). Viewed in
this way, the disputingpartiesmay be said to have shapedthe interpretativecontext of
the WTO treaty terms, notwithstandingthe rejection by the Panel of that idea in its
conception of VCLT Article 31(3)(c).145The Panel's quest for 'consistency' in treaty
136ibidpara7.11.
137ibidpara7.19.
138ibidpara7.18.
139eg the Panelaskedthe expertsto commenton how the relevantscientificdocumentation
reliedon by theECMemberStatesin establishing
theirsafeguard
measurescompared
withdocumentationof severalinternational
see ibid AnnexH-170.The Panelreferredto
organizations:
IPSM,FAO/WHOCodexprinciplesandAnnexIIIof BiosafetyProtocol.Canadadisputedthat
AnnexIIIcouldbe construedas an 'international
in theseterms:ibidAnnexI-2 para
standard'
119.
betweenthepartiesat theinterimreviewstageovertherepresen140See,eg, thedisagreement
tationof expertopinionon antibioticresistantmarkergenes:ibidparas6.36-6.41.
141ibidpara7.18.
142ibidpara7.31;see alsopara7.96.
143 ibidpara7.96.
bothon theinternational
144 ibidpara7.31: 'it shouldbe notedthatthe Partieswereconsulted
fromwhichinformation
wouldbe soughtandon thelist of termson whichinfororganizations
mationwouldbe sought.'
145 See aboven 45 andsurrounding
text.

CurrentDevelopments
927
interpretation,which underlayits approachto the 'relevantrules applicable between

the parties',146is thereforeimpeded, at least to some degree, by the will of the disputing parties.147
It is useful to contrastthe Panel's consultationwith internationalorganizationswith
the WTO's broaderinstitutionalrelationships.For example, the concept of 'mutual
supportiveness'has been incorporatedin a numberof WTO instrumentssuch as the
Decision on Trade and Environment148and the Doha Declaration.149Accordingly,
membershave agreed to negotiate and formulatepolicy with this concept in mind. If
the Panel's consultations had been driven by this concept ratherthan its restrictive
notions of treatyinterpretation,it arguablywould have been able to take into account
a much wider scope of non-WTO sources, including the Biosafety Protocol and the
CBD.150In addition to the explicit concept of 'mutual supportiveness' the WTO's
interdependencewith other institutionsis apparentin many of its rules. For example,
the SPS and TBT Agreementsdepend on internationalbodies like Codex to harmonize
non-tariffbarriers(throughstandards)151
and to provide scientific and technical definitions152and advice.153This institutionalrole of providing a 'multilateralscientific
consensus' extends, in certain circumstances,to a recognition of minority scientific
opinion.154The generationby these institutionsof importantscientific and technical
understandingssits uneasily with the Panel's conception that they merely inform the
'ordinarymeaning' of treatyterms.Yet while the Panel was awareof the broaderstatus
146
See aboven 59 andsurrounding

text.
will of coursealsoresultfromthe
treatyinterpretation
contentandqualityof theirsubmissions
to a panel.
148MinisterialDecisionon Tradeand Environment,
14 Apr 1994, Marrakesh
Agreement
theWTO(availableat <http://www.wto.org>).
Establishing
149Aboven 7, para6: 'Weareconvincedthattheaimsof
anopen
upholdingandsafeguarding
andnon-discriminatory
multilateral
of theenvirontradingsystem,andactingfortheprotection
mentandthepromotion
of sustainable
canandmustbe mutuallysupportive... We
development
welcomethe WTO'scontinuedcooperation
withUNEPandotherinter-governmental
environmentalorganizations.
We encourageeffortsto promotecooperation
betweentheWTOandrelevantinternational
anddevelopmental
environmental
organizations.'
150ForcriticismthatthePanelin Biotechfailedto incorporate
theconceptof mutualsupportWTOLawandtheRelevanceof Multilateral
iveness,seeN Bernasconi-Osterwalder,
'Interpreting
Environmental
at the British
Agreementsin EC-Biotech'BackgroundNote to presentation
Instituteof International
andComparative
LawAnnualWTOConference,
May2007, available
on thewebsiteof theCenterforInternational
Environmental
Law(<http://www.ciel.org>).
151See SPSAgreement
Art3.1 andTBTAgreement
Art2.4. Seefurther
EC-TradeDescription
of Sardines(WT/DS231/AB/R),
especiallyparas171-316.
152TBTArt 1.1 providesthat'[g]eneraltermsfor standardization
andprocedures
for assessmentof conformity
shallnormallyhavethemeaninggivento themby definitionsadoptedwithin
the UnitedNationssystemandby international
bodiestakinginto accounttheir
standardizing
contextandin thelightof theobjectandpurposeof thisAgreement.'
153Inthedisputesettlement
Art11.2.Butthisalsoopercontext,see especiallySPSAgreement
atesoutsideof disputesettlement:
see SPSAgreement
Art5.1 ('[Members
riskassessmenttechniquesto take]intoaccountriskassessmenttechniquesdevelopedby the relevantinternational
Art5.7 (provisional
measuresto be basedinteraliaon availablepertinent
infororganizations');
mationfromrelevantinternational
Art6.1 (in adaptingSPSmeasuresto regional
organizations);
criteriaor guidelineswhichmay be
conditions,Membersshalltakeinto account'appropriate
Art9.1 (Membersto facilitatetechnical
developedby therelevantinternational
organizations');
assistanceinteraliathroughappropriate
international
organizations).
154(n 48) para194. See furtherDA Motaal,'The"Multilateral
ScientificConsensus"
andthe
WorldTradeOrganization'
(2004)38 J of WorldTrade855.
147 Thedisputingparties'influenceon

928
of internationalorganizationsin the SPS andTBT Agreement,it consideredthatAnnex

A of the SPS Agreementdid not incorporatesuch coexistence.155
The statusof internationalorganizationsin the SPS and TBT Agreementleads to a
further importantpoint. Relevant standard-settingbodies are identified in the SPS
Agreementas the Codex, the IPPC and the OIE, althoughfurtherinternationalbodies
can be identified throughthe SPS Committeeprovidedthey are open for membership
to all WTO Members.156The TBT Agreement goes furtherand endorses standards
developed by internationalbodies that are open to the relevant bodies of all WTO
members.157There is no need for consensus in the developmentof the standardsfor
them to be relevant.158However, the standard-settingbodies are encouragedto operate
with open, impartial and transparentprocedures.159Moreover, internationalbodies
may applyfor observerstatusto the relevantcommittees.160Accessibility for the WTO
membership, rather than parallel membership, is therefore the main theme of the
WTO's institutional coexistence with other internationalorganizations under this
framework.As such, there is a much strongerpresenceof the notion of 'systemic integration' in the institutionalstructureenvisaged by the WTO covered agreementsthan
in the Biotech panel's interpretativetools.161
E. Conclusion
The dispute over trade in certainGM productsarose within a diffuse institutionaland
normativecontext. This context involved the WTO covered agreements,multilateral
environmentalagreementssuch as the CBD and Biosafety Protocol,internationalstandards of bodies such as IPPC and Codex and the alleged general principleof precaution. Once filed at the WTO, the question for the Panel was how much regardit could
have to these bodies of law, many of which were not binding on the disputingparties
or the WTO members as a whole. This note has examined the way the Panel utilized
these non-WTO sources by assessing the applicablelaw and interpretativetools identified by the Panel and its institutionalmechanismsfor consultation,particularlywith
internationalorganizations.
In summary,the Panel restrictedthe use of non-WTOlaw by:
156SPSAgreement
AnnexA.3.
157TBTAgreement
158Sardines(n 138)
Annex1:4.
para225.
159 Decisionof the Committee
on Principlesfor the Development
of International
Standards,
GuidesandRecommendations
withrelationto Arts2, 5 andAnnex3 of the Agreement.
These
principlesare foundin SectionIX of the Decisionsand Recommendations
adoptedby the
Committeesince 1 January1995,G/TBT/1/Rev.
8, 23 May2002 ('Inorderto improvethequalstandardsand to ensurethe effectiveapplicationof the Agreement,the
ity of international
Committee
agreedthattherewasa needto developprinciples
concerning
transparency,
openness,
andconsensus,relevanceandeffectiveness,
coherenceanddevelopingcountryinterimpartiality
eststhatwouldclarifyandstrengthen
theconceptof international
standards
undertheAgreement
andcontribute
to theadvancement
of its objectives.')
160 Therehasbeena long-standing
requestby theCBDandtheBiosafetyProtocolforobserver
see further
J Scott,The
statusto theSPSCommittee,
whichhasbeendelayedon politicalgrounds:
WTOAgreementon Sanitaryand PhytosanitaryMeasures:A Commentary(OUP, Oxford, 2007)
63.
161 I notethattheILCStudyGroup'smandate
didnotextendto a consideration
of institutional
issuesrelevantto thefragmentation
anddiversification
law:see Reportof theILC
of international
(n 1) para13.
StudyGroupas finalizedby Koskenniemi

CurrentDevelopments
929
* merging the complaints of the complainingparties. This limited the applicable law
to law binding on all four disputing parties, in the sense that the CBD, which was
binding on three of the disputingparties,was not applicable;162
* construing'the parties' in VCLT Article 31(3)(c) as 'the partiesto the treaty' rather
than 'the disputingparties'.As a result,the Panel could not take accountof 'relevant
rules of law applicablein the relationsbetween the parties'in its interpretationof the
relevantWTO agreementsunless they had identical membershipto the WTO; and
* closely involving the disputingpartiesin its consultationswith internationalorganizations and scientific experts, notwithstandingits broad ability to seek information
underthe DSU.
On other hand, the Panel expandedits ability to take into account non-WTOlaw by:
* drawing on non-WTO sources if they were informativeof the 'ordinarymeaning'
of WTO treatyterms accordingto VCLT Article 31(1).
The first set of strategic and doctrinaldecisions identified above engenders the criticism thatthe Panel was overly restrictivein its use of non-WTOsources. On this basis,
the Panel's later constructionof VCLT Article 31(1) as allowing for the incorporation
of a wide body of non-WTOlaw will be welcomed. Treatieswere found to be relevant
if they could be consideredas demonstrativeof the 'ordinary'meaningof certainWTO
terms, regardlessof the degree to which the WTO memberswere bound by them. Yet
I have demonstratedthat, quite apartfrom the questionabledoctrinal foundationsof
this readingof VCLT Article 31(1), its applicationcan lead to highly abstractnotions
that are de-contextualizedfrom disputes.The Panel's attemptto 'unmask'the termsof
Annex A of the SPS Agreementin a depoliticized, 'natural'investigationthat picked
and chose between dictionariesand rules of internationallaw was fraught.
Of the many implications of my analysis, two may be identified here. First, if the
consent of the disputingpartiesor the WTO membersis not requiredfor a treatyto be
taken into account underthe norm of treatyinterpretationin VCLT Article 31(1), it is
importantto shed visibility on its substitute. For the Panel, this substitute was the
'informative'natureof a relevantrule of internationallaw. Implicit in this approachis
the notion of an 'internationalsystem' or 'internationalcommunity' providing the
context for an assessment of the rule's relevance. Questions must be asked about any
biases thatresult from this conceptionof the internationalcommunity.For example, in
Biotech this 'internationalcommunity' was a scientific and technical communitythat
had been active in developing rules and guidelines. Yet absence of rule-makingby
partsof this scientific communitymay be attributedto an absence of scientific inquiry
(due to divertedresearchfunding,epistemic weaknesses, etc) ratherthanan absence of
collective concern. Silence in the internationalsystem may be 'informative'for many
reasons. Moreover, given that all the disputing parties argued at various points that
there was 'consensus' for the interpretationthat they were advancing,there is a need
for the Panel to assess (and even rank) 'degrees' of consensus in ways other than
simply pronouncingon what seems the most 'informative'.
162I recallthatthe paneldeclinedto commenton whetherlaw bindingon all the disputing

text.
partieswouldbe necessarilyappliedby it: see aboven 36 andsurrounding

930
This criticism points more generally to the second majorimplication of my analysis: the need to think critically and creatively about the types of 'entranceconditions'
for norms in internationaldispute settlement.For example, institutionalrelationships
already exist between the WTO and other internationalorganizations.In this note I
have pointedto some of the ways that standard-settingbodies are incorporatedinto the
WTO frameworkif they accord accessibility to all WTO members.Such accessibility
might be a factorin determiningwhethera WTOpanel shouldtake accountof the work
The breadthof an organization'ssupport,and its balanceof its
of that organization.163
membershipbetween developing and developedcountries,164mightbe otherfactors.165
Procedures for transparencyand cooperation between secretariats,and openness to
non-Stateactors such as NGOs, might be furtherfactors that reinforcethe 'relevance'
of the norms developed underthe auspices of internationalorganizations.These ideas
call into questionthe currentjudicial tools of interpretationand consultation.For example, to allow for such radical 'entrance conditions' for internationalnorms in treaty
interpretation,panels may need to consult with other internationalinstitutions in a
proactiveway thatdoes not rely on the disputingparties.166Moreover,the VCLT itself
could be interpretedin an evolutionaryfashion to incorporatea spectrumof 'international consensus' as opposed to binary questions of consent and non-consent.
Recognizing the increased involvement of internationalorganizationsand non-State
actors in law-making adds a further shade to this spectrum and allows institutional
questions of openness and accessibilityto be raisedat the interpretativestage. As such,
the process by which a treatycomes into being may be assessed to determineits probative value in interpretingothertreatyobligations.These ideas would have benefitedthe
Biotech panel and will be increasingly useful to the fragmentedinternationallegal
order.
MARGARET
A YOUNG*
163 For a comparisonwith the

EuropeanCommunities'coexistencewith standard-setting
TradeandEnvironmental
Governance:
bodies,see J Scott,'International
RelatingRules(and
in theEU andtheWTO'(2004)15 EJIL307.
Standards)
see AH Qureshi,Interpreting
WTO
164 For a similaridea in relationto treatyinterpretation,
ProblemsandPerspectives(CUP,Cambridge,
2006) 114-59, 120 ('ThedevelopAgreements:
ment dimensionas an objectiveneeds to be factoredin at the time of draftingthe WTO
in the very processof interpreting
the WTOAgreements,engiAgreements,institutionalised
neeredintoactualinterpretations
of theWTOAgreements
andfacilitated
throughtheintroduction
of development-friendly
materialintothejudicialprocess').
165 Foradditional
suchas theconceptsof subsidiary
andflexibility,see Scott(n
considerations
163)346.
166 For an assessmentof an enhancedjudicialrole in participation,
and
information-sharing
see J Scott and SP Sturm,'Courtsas Catalysts:Re-thinkingthe
principleddecision-making,
JudicialRole in New Governance'(2007) 13 ColumbiaJ of Eur L, availableat SSRN
<http://ssrn.com/abstract=982281>
)(lastaccessed7 June2007).
* ResearchFellow,PembrokeCollege,Universityof Cambridge.
I am gratefulto Professor
JoanneScott, ProfessorJamesCrawford,Dr LorandBartels,Dr AndrewLang and Stephen
forerrorsandomisfordiscussionsandcommentson anearlierdraft.Responsibility
Humphreys
sionsremainswithme.


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Stable URL: http://www.jstor.org/stable/4498118 .

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Panelhadto determinewhetherandhow it couldtakeintoaccountsourcesof internationallaw extrinsicto theWTOcoveredagreements.2

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Internationaland ComparativeLaw Quarterly

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of international law to be taken into account in dispute settlement. The Panel's

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Internationaland ComparativeLaw Quarterly

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Internationaland ComparativeLaw Quarterly

at the WTO. In one

30 See, eg, BiotechAnnexD, D-91,para18 withrespectto theCBDandBiosafetyProtocol:

the Reportof the ILCStudyGroupas finalizedby Koskenniemi

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to notethatthepresentcase is notone in whichrelevantrulesof internait is important

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Internationaland ComparativeLaw Quarterly

42 TheAppellateBodyhasconsideredVCLTArts31 and32 to haveeachattainedthe status

betweenMEAsandthe WTOaresubjectin the provisothatthe negotia44 Therelationship

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Internationaland ComparativeLaw Quarterly

62 See Pauwelyn(n 31) 440-86; and Pauwelyn,'A Typology of MultilateralTreaty

more recently, C Carmody,'WTO Obligationsas Collective' (2006) 17 EJIL419.

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Conclusion (21) suggests that the probativevalue of a treatyincreases accordingto the

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Internationaland ComparativeLaw Quarterly

suggested that such subsequentpracticemay be probativeeven if it is only evidenced

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Internationaland ComparativeLaw Quarterly

particularparagraphnumbersof the VCLT in its interpretationof 'exhaustiblenatural

89 See, eg, its interpretation

withVCLTArt 31(1),the AppellateBody consideredthe term'exhaustible

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see Yearbookof theILC(n 54) 221,para12.

98 ibid Art 32.

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Internationaland ComparativeLaw Quarterly

In summary,I havequestionedthebasisof the Panel'suse of VCLTArticle31(1)

(b) ThePanel'suseof extrinsicmaterialsto interpreta treatytermin accordancewith

MemberStatesand the natureof the requiredrisk assessment.The Panelgave an

107Revisionsto theIPPCwereapprovedat theFAOin 1997to reflecttheroleof theIPPCin

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Internationaland ComparativeLaw Quarterly

118 ibid para7.295.

119 ibid para7.300.

125 ibid para7.333.

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'informative' materials.131For example, it is controversialthat a WHO definition of

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Internationaland ComparativeLaw Quarterly

Of relevancehere is how these consultationsrelatedto the Panel's use of non-WTO

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interpretation,which underlayits approachto the 'relevantrules applicable between

See aboven 59 andsurrounding

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