There are numerous multilateral agreements under the WTO legal regime. Sometimes, the same subject matter is regulated under two different agreements. In case that two agreements provide contradicting rules on the same issue and Members cannot comply with both agreement simultaneously, WTO law provides some regulations on the order of application in the event of conflicts. For example, Art. XVI:3 of the WTO Agreement indicates that “in the event of a conflict between a provision of this Agreement and a provision of any of the Multilateral Trade Agreements, the provision of this Agreement shall prevail to the extent of the conflict.” Also, General Interpretative Note to Annex 1A provides that “in the event of conflict between a provision of the General Agreement on Tariffs and Trade 1994 and a provision of another agreement in Annex 1A to the Agreement Establishing the World Trade Organization (referred to in the agreements in Annex 1A as the “WTO
592 Appellate Body Report, European Communities – Measures Concerning Meat and Meat Products (Hormones), ¶ 165, WT/DS26/AB/R (Jan. 16, 1998).
593 The amicus curiae brief in Canada – Renewable Energy, 11.
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Agreement”), the provision of the other agreement shall prevail to the extent of the conflict.”
The applicability of GATT Art. XX in the AP raises the question of which agreement should prevail, the AP or the GATT.594
A. Art. XVI:3 of the WTO Agreement
Art. XVI:3 of the WTO Agreement will apply in the applicability issue. Art. XVI:3 provides that the WTO Agreement should prevail over the Multilateral Trade Agreement in the event of conflict. The standardized integral clause under the AP states that the AP is an integral part of the WTO Agreement. One might wonder if the AP is an integral part of the WTO Agreement, the AP will prevail over the GATT. However, as discussed in the prior part, this thesis believes that the integral clause should be interpreted as that the AP obligations are an integral part of their corresponding agreement. In this way, the AP obligations are an integral part of various multilateral agreements, depending on their respective substance, not of the WTO Agreement. Accordingly, the situation that requires the application of Art. XVI:3 of the WTO Agreement will not even occur.
B. General Interpretative Note to Annex 1A
As for the General Interpretative Note to Annex 1A, the Note states that in the event of conflicts, provisions of multilateral trade agreements in Annex 1A will prevail over provisions of the GATT. Technically speaking, the AP will not fall under the purview of the General Interpretative Note because the AP is not one of the multilateral trade agreements under Annex 1A. However, as this thesis proposes to read the AP obligations together with their corresponding agreements as a whole, the AP obligations become an integral part of the
594 This thesis would like to thank Prof. Seung-Hwan Choi, President of International Law Association–Korean Branch, for pointing out this concern at the 2013 ILA-ASIL Asia-Pacific Research Forum – International Law and Dispute Resolution: Challenges in the Asia Pacific, where this thesis was presented during the poster session.
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relevant multilateral trade agreements. In this way, some might argue that according to the General Interpretative Note, GATT Art. XX should not take precedence over the AP obligations.595 Also, some considers that the General Interpretative Note denotes the rule of lex specialis,596 and therefore the AP, being a more specific agreement, should prevail over the GATT, including GATT Art. XX.597
This thesis considers that the application of the AP obligations will not take precedence over GATT Art. XX due to the application of the General Interpretative Note. This is because there is no conflict between the AP obligations and GATT Art. XX. The WTO judiciary has on occasion defined the term “conflict” and the definition of conflict is rather strict.598 In Indonesia – Autos, Indonesia argued that “there is a conflict because the SCM Agreement ‘explicitly authorizes’ Members to provide subsidies that are prohibited by Article III:2 of GATT.”599 When examining whether there is a conflict, the Panel states that for a conflict to exist, the two obligations must be “mutually exclusive.”600 That is, the two obligations cannot be complied with simultaneously.601 If it is possible for Members to comply with one obligation without violating the other obligation, there is no conflict.602 Again, the AB in Guatemala – Cement defined conflict as “a situation where adherence to the one provision will lead to a violation of the other provision”603 In light of this definition, there
595 Pauwelyn, Squaring Free Trade in Culture with Chinese Censorship, supra note 162.
596 Joost Pauwelyn, Conflict of Norms in Public International Law, 398 (2003).
597 Fernando Piérola, supra note 62, at 174.
598 This narrow interpretation is seriously criticized. See Pauwelyn, Conflict of Norms in Public International Law, supra note 596; Erich Vranes, The Definition of “Norm Conflict” in International Law and Legal Theory, 17 EUR.J.INT.LAW 395 (2006).
599 Panel Report, Indonesia – Certain Measures Affecting the Automobile Industry, ¶ 14.98, WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R (July 2, 1998) [hereinafter Indonesia – Autos Panel Report].
600 Id. ¶ 14.99.
601 Id.
602 Id.
603 Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding Portland Cement from Mexico,
¶ 65, WT/DS60/AB/R (Nov. 2, 1998).
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will be no conflict between the AP obligations and GATT Art. XX because these two obligations are not mutually exclusive. Members will not violate their AP obligations because of compliance with GATT Art. XX and neither will Members violate GATT Art. XX because of compliance with their AP obligations. This is because GATT Art. XX is an exception for trade facilitation obligations. GATT Art. XX gives Members the choice to pursue non-trade policies, rather than requires Members to do so. Hence, Members can comply with GATT Art.
XX and trade facilitation obligations simultaneously. Accordingly, under the current WTO judiciary’s interpretation, the General Interpretative Note will not even apply.
Second, the principle of lex specialis will not hinder the applicability of GATT Art.
XX in the AP. The lex specialis maxim means that preference must be given to the more specific agreement.604 However, this does not mean that the agreement that is more general is completely replaced when there is no conflict, as in the present case.605 The more general agreement is still “relevant and adds certain rights and obligations.”606 Moreover, GATT Art.
XX by virtue of its nature as a general exception provision is not a more specific provision than the AP provisions, unless the AP provisions specifically prescribe more specific obligations regarding the requirements of the general exceptions. In other words, GATT Art.
XX and the AP obligations regulate different subject matters. GATT Art. XX provides Members choices to pursue non-trade interests, whereas the AP obligations prescribe more or less stringent rules on trade facilitation. Hence, the AP obligations are not more specific or special rules than GATT Art. XX. Accordingly, the principle of lex specialis will not even apply.
604 QURESHI, supra note 591, at 111.
605 Pauwelyn, Conflict of Norms in Public International Law, supra note 596, at 412.
606 Id.
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