MEAs

The Argument The status of MEAs in WTO law is unclear –Not a source of law –Scepticism regarding their status Theoretically, it could be resolved through either –Legislative action –Case law The Case law-option seems more promising –It avoids peace meal approach –Is more flexible (can be adjusted to specific circumstances)

MEAs: No Source of WTO Law Sources of WTO law are the covered agreements (1.1 DSU): MEAs are not part of them CTE has entertained a discussion on their relevance since 1996 –Wording in CTE/1 (1996) and CTE/96 (2010) is almost identical and denotes lack of clarity regarding the status of MEAs urging WTO Members to work in this direction

No Source of Law is not the End MEAs could be used as interpretative element (Art. 31 VCLT) –To this effect, recourse to case law (adjudication practice) is necessary

Case Law: no Clear Outcome First, AB (US – Shrimp) uses CITES to confirm a meaning of a GATT term –AB proceeds in this way satisfied that the MEA is relevant since both parties to the dispute had signed it Then, a panel (EC – Biotech) refuses to do the same without however, explicitly reversing the prior AB ruling

Case Law: Where Do We Stand? AB is the higher organ, but there is no stare decisis (binding precedent) in WTO, although panels are expected to follow AB rulings (Mexico – Steel, AB) The panel report is the more recent pronouncement: is it deliberate deviation? At any rate, MEAs have been used as supplementary means (Art. 32 VCLT) only (to confirm a meaning)

But, WTO Knows Inter Se Agreements Agreements between su-part of WTO Membership –Non-application –Plurilaterals –PTAs –Recognition –Export Credits (OECD) –Tariff Reductions (ITA) –International Standards (TBT/SPS)

How Can We Clarify This Issue? In theory there are two options: –Legislative –Case law

The Legislative Option Amending WTO agreement –Art. X Agreement Establishing the WTO, ¾ must sign Practice recommends caution –Only one amendments has so far been proposed –Kennedy (JIEL, 2010): serious shortcomings, the amendment has still not been signed by the required ¾ It is transaction-specific –It can concern only specific MEAs (those included in the amendment) MEAs become a source of WTO law

Case Law Panels could use VCLT to ‘import’ MEAs in WTO law, provided that –30, 34 VCLT have been complied with (rights and obligations of third parties) Panels can provide the methodology to import any MEA into WTO law Caution: MEAs will not thus become source of law, but only an interpretative element (only Members can add to sources of law)

Summing Up Assuming political will to do so –Legislative option makes MEAs a source of law (like GATT etc.) but is a cumbersome procedure; this means that MEAs can alter the balance of rights and obligations –Case law-approach is flexible (the test will accept the relevance of some, not of others), more ‘economical’ but relegates MEAs to interpretative elements (used to interpret the existing sources of law)