6. WTO Law and Public International Law: Focus on UNCLOS Rules on Freedom of Transit of Landlocked States

See for example AB Report, United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, 17 (May 20, 1996) [hereinafter US – Gasoline]; see also Jackson (1998), pp. 25–30; Marceau (Ch. 5, note 99), 1081; Pauwelyn, Conflicts of Norms in Public International Law (Ch. 5, note 100), 26–30; Pauwelyn (2001), pp. 538–540; Pauwelyn (2005), pp. 1406–1423.

Articles 1.1, 3.4 & 7.1 DSU mandate panels to apply provisions of the WTO covered agreements to disputes before them.

See for example Article 3.2 DSU provides that WTO panels clarify WTO provisions in accordance with customary rules of interpretation of public international law. Articles 3.10 and 4.3 DSU provide that all WTO members should engage in WTO dispute settlement procedures in good faith and in effort to resolve their disputes. For WTO disputes reflecting principles and rules of international law see for example AB Report, US – Shrimp, para. 114 and Panel Report, Korea – Procurement, para. 7. 93 for the principle of ‘good faith’; Panel Report, Turkey—Restrictions on Imports of Textile and Clothing Products, WT/DS34/R, paras. 33–43(Nov. 19, 1999) [hereinafter Turkey—Textiles] for the principle of ‘State responsibility’; Panel Report, Korea—Procurement, paras. 7. 123–24 for the principle of ‘error in treaty formation’; Panel Report, EC—Approval and Marketing of Biotech Products, WT/DS291/R, para. 7. 67 (Sep. 29, 2006) [hereinafter EC—Biotech] for the principle of ‘precautionary’; for literature review see Mitchell (2008), pp. 15–23; Howse (2002), pp. 498–500.

See for example, AB Report, US—Gasoline, at 17; AB Report, US—Shrimp, para. 158; Panel Report, EC–Biotech, para. 67.

Panel Report, EC – Biotech, para. 67. Article 38 (1) of the Statute of International Court of Justice lists public international law sources as (a) international conventions whether general or particular, (b) international custom, as evidence of a general practice accepted as law, (c) the general principles of law recognized by civilized nations; and (d) judicial decisions and the teachings of the most highly qualified publicists as subsidiary source of law. ⁶²¹ Panel Report, Peru – Additional Duty on Imports of Certain Agricultural Products, WT/DS457/R, para. 7. 69 (Nov. 27, 2014) [hereinafter Peru – Agricultural Products].

Panel Report, Peru – Additional Duty on Imports of Certain Agricultural Products, WT/DS457/R, para. 7. 69 (Nov. 27, 2014) [hereinafter Peru – Agricultural Products].

See for example Pauwelyn (2001), p. 541; Pauwelyn (2005), pp. 1406–1423; Bartels (2001), pp. 503–509.

See ibid.; see also ICJ, Advisory Opinion, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), REP. 16, para. 96 (1971).

See for example AB Report, US – Anti-Dumping and Countervailing Duties, paras. 308–309; AB Report, US – Shrimp, para. 158 & footnote 157; Panel Report, EC – Biotech, para. 7. 67.

See AB Report, US – Anti-Dumping and Countervailing Duties, paras. 308–9; AB Report, US/Canada – Continued Suspension of Obligations in the US – Hormones Dispute, WT/DS321/AB/R, para. 382 (Oct. 16, 2008) [hereinafter Canada – Continued Suspension].

Panel Report, EC – Biotech, paras. 7. 68, 7. 71. In Argentina – Poultry, the panel stated that “it is not clear to us that a rule applicable between only several WTO members would constitute a relevant rule of international law.”

See also Arts. 3.2, 7. DSU. Moreover, Article 2.1 DSU provides only for the application of WTO plurilateral agreements to a dispute where relevant.

For example, in US – Anti-Dumping and Countervailing Duties, the AB stated that the applicable law was the WTO SCM agreement and taking account of the ILC provisions as relevant rules of international law was to interpret meaning of terms of the SCM agreement and not to apply ILC provisions in the dispute. AB Report, US – Anti-Dumping and Countervailing Duties, para. 316.

See Cook (Ch. 5, note 70), 65; Pauwelyn (2001), p. 554.

Pauwelyn (2001), pp. 560–563.

Ibid., 557.

Pauwelyn (2001), p. 555.

Panel Report, Peru – Additional Duty on Imports of Certain Agricultural Products, WT/DS457/R, para. 7. 69 (Nov. 27, 2014) [hereinafter Peru – Agricultural Products].

Ibid.; see also Aegean Sea Continental Shelf (Greece. v. Turkey), 1978 I.C.J., pg. 3 (December 19); for literature review of evolutionary interpretation see Pogoreskky (Ch.5, 48), 140–41; Howse (2002), pp. 8–10.

In EC – Biotech, the panel stated that recourse to multilateral agreements to interpret WTO provisions in accordance with Article 31(1) VCLT was still possible even if those multilateral agreements maybe not applicable to relations between all parties of a given dispute. Panel Report, EC – Biotech, para. 7. 92.

Panel Report, United States – Tax Treatment for Foreign Sales Corporations (Article 21.5 – EC), WT/DS108/R, footnote 195 (Oct. 8, 1999) [hereinafter US – FSC (Article 21.5 – EC)].

Ibid., para. 168.

Ibid.

The relationship between IMF agreements and GATT is addressed under Article VII:4(c) GATT that provides: “the CONTRACTING PARTIES, in agreement with the International Monetary Fund, shall formulate rules governing the conversion by contracting parties of any foreign currency in respect of which multiple rates of exchange are maintained consistently with the Articles of Agreement of the International Monetary Fund.”

AB Report, Argentina – Measures Affecting Imports of Footwear, Textile and other Items, WT/DS56/AB/R, para. 69 (Mar. 27, 1998) [hereinafter Argentina – Textile and Apparel]. In a similar situation in Argentina – Hide and Leathers, Argentina argued that its financial measures were necessary to meet its commitment under an agreement with the IMF. The panel held that there was no requirement in Argentina’s agreement with the IMF to prevent compensating discrimination and damages inferred to importers as a result of Argentina’s measures nor Argentina proved that it was impossible for it to meet its deficit target it compensated importers. Panel Report, Argentina – Measures Affecting the Export of Bovine Hide and the Import of Finished Leather, WT/DS155/R, para. 11. 328 (Dec. 19, 2000) [hereinafter Argentina – Hide and Leather].

This study prefers to use the term ‘regional agreements’ instead of ‘regional trade agreements’ (RTAs) as in WTO law, RTAs are limited to those falling under Article XXIV GATT and not all types of regional agreements that affect trade between WTO members, be it a trade agreement, an investment agreement, environmental agreement or a transit agreement.

Panel Report, European Communities – Measures Affecting Trade in Commercial Vessels, WT/DS301/R, para. 7. 131 & footnote 275 (Apr. 22, 2005) [hereinafter EC – Commercial Vessels].

Arts. 1.1, 3.2 DSU; for literature review see Pauwelyn (2001), p. 554.

Art. 2.1 DSU.

Award by the Arbitrator, Canada/European Communities, Article XXVIII, B.I.S.D 37S/80, para. 84 (Oct. 16, 1990).

Panel Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/R/GTM, paras. 3. 33–35 (May 22, 1997) [EC – Bananas III]; AB Report, EC – Bananas III, WT/DS27/AB/R, paras. 175–78 (Sept. 9, 1997).

Ibid., paras. 3. 33–35.

Ibid., para. 4. 1.

Ibid., paras. 7. 96, 7. 98, 7. 107.

Ibid., para. 4. 44.

Ibid., para. 196.

Ibid.

Panel Report, EC – Poultry Products, paras. 206, 207, 209; for literature review see Melgar (Ch.1, note 2), 11.

Ibid., para. 7. 38. In this dispute, the question at issue was based on Article 1 of the newly adopted MERCOSUR protocol of Olivos, which provides that once a MERCOSUR party decides to file a dispute with either MERCOSUR or WTO, it cannot file the same dispute with the other dispute settlement proceeding. Since the Protocol had not entered into force at that point of time, the Panel drew its conclusion based on the Brasilia protocol. For more discussion, see WTO Analytical Index, GATT 1994-Article XXIV, 21.

Panel Report, Mexico – Tax Measures on Soft Drinks and other Beverages, WT/DS308/R, para. 7. 1 (Oct. 7, 2005) [hereinafter Mexico – Soft Drinks]. The AB upheld the panel’s conclusion and ruled that “we express no view as to whether there may be circumstances in which legal impediments could exist that would preclude a panel from ruling on the merits of the claims on dispute before it”. AB Report, Mexico – Soft Drinks, para. 54 (Mar. 24, 2006).

Art. 4.4 DSU.

See ibid.; Kearney and Dalton (1970), p. 495, 517.

Cottier and Foltea (2006), pp. 53–55; Borgen (Ch.5, note 106), 585–587.

WTO, Ministerial Declaration of 18 December 1996, WT/MIN/(96)DEC (Dec. 18, 1996) [hereinafter Singapore Declaration]; for literature review see for example Cottier and Foltea (2006), pp. 56–57.

Cottier and Foltea (2006), pp. 57; Pauwelyn, Conflicts of Norms in Public International Law (note 1), 321.

Ibid.

See Cottier and Foltea (2006), pp. 53–55.

See Singapore Ministerial Declaration, Section on Regional Trade Agreements; see also Cottier and Foltea (2006), pp. 56–57.

See for example NAFTA, Panel Decision on Remand, Certain Softwood Lumber Products from Canada (Countervailing Duty), USA-CDA-1992-1904-01 (Dec. 17, 1993). The NAFTA panel held that “it is no matter for legal or economic surprise, then, that an independent GATT panel found no theoretical obstacle to a stumpage program, like that conducted in Canada, being a subsidy”.

Schreuer (1995), p. 477; Kelsen (1946), p. 373.

Navigational and Related Rights (Costa Rica. v. Nicar), 2009 I.C.J (July 13).

AB Report, China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/AB/R, para. 396 & footnote 705 (Dec. 21, 2009) [hereinafter China – Publications and Audiovisual Products].

See for example (note 1).

Ibid., paras. 7. 93–95.

Howse (2002), p. 499.

AB Report, US – Shrimp, para.130; see also AB Report, China – Publications and Audiovisual Products, footnote 705.

Franck (2010), p. 230.

See generally Ibid.

Panel Report, EC – Biotech, para. 7. 67; AB Report, US – Shrimp, para. 158 & footnote 157.

WTO, Glossary of Terms.

See for example AB Report, EC – Hormones, paras. 173, 175; AB Report, Japan – Agricultural Products II, para. 79; WTO Analytical Index, SPS Agreement – Article 3 (Jurisprudence), 12–13.

Panel Report, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/R, para. 7. 377–378 (July 5, 2011) [hereinafter China – Raw Materials].

Ibid., para .130; see also Aegean Sea Continental Shelf (Greece. V. Turkey) 1978 I.C.J., 3 (December 19); for literature review see Pogoretskyy (Ch.5, note 48),140–141; Howse (2002).

WTO, Chile – Measures Affecting the Transit and Importation of Swordfish, Request for Consultations by the European Communities, WT/DS193/1. (Apr. 26, 2000) [hereinafter Chile – Swordfish].

International Tribunal for the Law of the Sea [ITLOS], Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Community), Case No 7, Order 2007/3, (Nov. 30, 2007).

WTO, Chile – Swordfish – Arrangement between the EC and Chile, Communication from the EC, WT/DS193/3, (Apr. 6, 2001).

See for example Karaman Igor (2012), p. 266 & footnote 59. Igor also cites the report of the GATT panel in Tuna – Dolphin I to support its argument. In Tuna – Dolphin I, the GATT panel stated that non-discriminating national environmental measures that impose barriers to free trade were not allowed to contradict the GATT provisions even if they were adopted in good faith. The panel further stated that a contracting party cannot adopt trade measures to implement its environmental regulation outside its territory. In Tuna – Dolphin I, the US import embargo of tuna and tuna products that were not fished according to standards set out under the US Marine Mammal Protection Act was challenged, inter alia, for its extra-territorial application. See GATT, Tuna–Dolphin I, DS21/R, 55 (Sep. 3, 1991). [Not adopted], https://​www.​wto.​org/​english/​tratop_​e/​envir_​e/​edis04_​e.​htm.​

Karaman Igor (2012); see also McLaughlin (1997), p. 72.

Other WTO agreements also address these values. For example, the SPS Agreement allows WTO members to adopt regulatory measures concerning the life and health of animal, plant and environment. Similarly, the TRIPS Agreement allows WTO members to adopt regulatory measures and policies on promoting green technology and reducing the functioning of other technologies that harm the environment. For WTO disputes involving environmental issues see for example AB Report, US – Shrimp; AB Report, EC – Asbestos; AB Report, US – Gasoline; see also WTO Secretariat, Harnessing Trade for Sustainable Development and a Green Economy (2011).

Stoll and Veoneky (2002), pp. 33–34.

See generally Doha Ministerial Declaration; see also Hong Kong Ministerial Declaration, paras. 9–11.

See Hong Kong Declaration, Annex D, para. 9; WTO, WTO members hold discussions aimed at deepening talks on fisheries subsidies (Apr. 6 &11, 2017), https://​www.​wto.​org/​english/​news_​e/​news17_​e/​fish_​06apr17_​e.​htm.​

See WTO Committee on Trade and Development, The Doha Mandate on Multilateral Environmental Agreements (MEAs), https://​www.​wto.​org/​english/​tratop_​e/​envir_​e/​envir_​neg_​mea_​e.​htm.​

Id., for literature review see, e.g., Broude (2008), pp. 173, 202–203.

AB Report, US – Shrimp, Recourse to Article 21.5 of the DSU by Malaysia, WT/DS58/AB/R, paras. 140, 141, 153, 154 (Oct. 22, 2001).

Stoll and Veoneky (2002), pp. 33–35.

See UNCLOS, Chronological lists of ratification of, accession and succession to the Convention and related Agreements, https://​www.​un.​org/​Depts/​los/​reference_​files/​chronolog ical_​lists_​of_​ratifications.​htm; see also UNOHRLLS, UNCLOS and Landlocked Developing Countries: Practical Implications: Summary Report (2012), 2.

UNTC, https://​treaties.​un.​org/​Pages/​ViewDetailsIII.​aspx?​src=​TREATY&​mtdsg_​no=​XXI6&​chapter=​21&​Temp=​mtdsg3&​clang=​_​en#4.

Art. 87 UNCLOS.

Art. 18(1) UNCLOS.

Prmb, part X & Art. 148 UNCLOS; for literature review see Liu (2009), pp. 28–34.

Arts. 17, 24, 37(1) UNCLOS; for literature review See for example Ngantcha (1990).

Art. 39 UNCLOS. It should be noted that although UNCLOS recognizes overflight passage as transit passage and recognizes aircraft as means of traffic in transit, it provides that rules of the 1994 International Civil Aviation Organization Convention should govern overflight passage by aircraft. Art. 39 (3) UNCLOS.

Art. 18(2) UNCLOS.

Ibid., Arts. 2, 3.

Ibid., Art. 8(1).

Churchil and Lowe (1988).

Art. 55 UNCLOS.

Ibid., Art. 57.

Ibid., Art. 56.

Ibid., Art. 58(1).

According to literature a strait is “a narrow natural passage or arm of water connecting two larger bodies of water.” Churchil and Lowe (1988), p. 87.

Art. 37 UNCLOS; for literature review see Churchil and Lowe (1988), p. 3. The criteria for a strait to serve as an international transit route can be further elaborated in the Corfu Channel Case. In 1949, the UK deployed a naval team to the Corfu Channel without notifying the Albania which the Corfu Channel was laid in its territory. Albania challenged the UK in the ICJ for the UK violation of its territorial sovereignty over the Channel. Albania alleged that the Channel was not a strait for international navigation. The ICJ rejected Albania’s argument and held that “the decisive criterion is rather its geographical situation as connecting two parts of the high seas and the fact of its being used for international navigation. Corfu Channel (U.K. v. Albania), 1949 I.C.J., 28 (April 9).

Arts. 19(2), 39(1)(c), 40, 45 UNCLOS; see also ICJ, United Kingdom v Albania, pg. 28; For literature review see Melgar (Ch.1, note 2), 176.

Art. 25(1) UNCLOS.

Ibid. In Nicaragua case, the ICJ held also that “by virtue of its sovereignty that a coastal State may regulate access to its ports.” Military and Paramilitary Activities (Nicar. V. U.S), 1986 I.C.J. 14, 213 (June 27).

Tabibi (1958).

Similarly, besides ships and aircrafts, UNCLSO recognizes railway rolling stock, lake and river craft; road vehicles and where local conditions require, porters and pack animals as traffic in transit. Art. 124(1)(d) UNCLOS.

Art. 42 UNCLOS.

Ibid., Arts. 39, 40.

Ibid., Art. 127.

For literature review see Melgar (Ch.1, note 2), 189–226; Liu (2009), pp. 119–123; Proelss (2017), pp. 89–935.

Arts. 124, 125, 126, 131 UNCLOS. The equal treatment to vessels flying the flag of landlocked States put an end to the traditional understanding of nationality of vessels through their port of registration. See Rothwell and Stephens (2016), p. 214.

Tanaka (2015), p. 409.

See for example Melgar (Ch.1, note 2), 195–197; Proelss (2017), p. 91; Tanaka (2015); Uprety (2005), p. 113.

See Melgar (Ch.1, note 2), 195–197; Proelss (2017), p. 91; Rothwell and Stephens (2016), p. 210.

See Rothwell and Stephens (2016), pp. 211–212.

Art. 300 UNCLOS.

See Rothwell and Stephens (2016), p. 212.

Article 311(3) UNCLOS provides that Article 41 VCLT is applicable to conflict between UNCLOS provisions and other international agreements concluded by UNCLOS State parties.

See Tanaka (2015), p. 409; Uprety (2005), p. 86.

WTO case law provides a relatively broad definition for ‘legitimate interests’. In Canada – Pharmaceutical Patents, the panel defined ‘legitimate interests’ as “justifiable interests in the sense that they are supported by relevant public policies or other social norms. Panel report, Canada – Patent Protection of Pharmaceutical Products, WT/DS114/R, para. 7. 69 (Mar. 17, 2000) [hereinafter Canada – Pharmaceutical Patent]. Similarly, in US – COOL, the panel provided an ordinary meaning to the term ‘legitimate’ as, inter alia, ‘justifiable’, ‘lawful’ and ‘proper’ and cited the panel definition of ‘legitimate interests’. Panel report, United States – Certain Country of Labelling (COOL) Requirements, WT/DS384, paras. 7. 630–32 (Nov. 18, 2011) [hereinafter US – COOL].