Part I BACKGROUND
Section 2 An Appraisal of China – Raw Materials
E. Overlooking the Object and Purpose
469 Gu, supra note 47, at 21.
470 Liu, supra note 47, at 155.
471 Gu, supra note 47, at 21.
472 Liu, supra note 47, at 152–53.Liu 152-53
473 Argentina – Footwear AB Report.
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The Panel of China – Raw Materials failed to examine the object and purpose in its assessment of the applicability issue and the AB did not provide a satisfying interpretation, either. On appeal, China referred to the preamble of the WTO Agreement, GATT, SPS Agreement, TBT Agreement, Import Licensing Agreement, GATS and TRIPS Agreement to prove that while pursuing trade facilitation, the WTO still respects Members’ choice to promote non-trade-related interests. Therefore, China opposed the rebuttable presumption established by the Panel that China’s had abandoned its right to promote non-trade interests.474
In response, the AB recognized that the preamble of the WTO Agreement enumerates various non-trade objectives of the WTO Agreement, including protection of environment, optimal use of the world’s resources in accordance with sustainable development and promotion of standards of living.475 The AB agreed that the WTO Agreement as a whole reflects the balance between trade and non-trade interests struck by Members. However, the AB stated that the objectives listed in the preamble and the balance between trade and non-trade concerns do not provide specific guidance on the applicability of GATT Art. XX in the paragraph 11.3 of the AP.476 Accordingly, the AB did not find any useful materials from the object and purpose of the WTO Agreement for the purpose of interpretation.
The AB’s reasoning receives positive and negative responses from the academia. Feld and Switzer agree with the AB’s reasoning that the balance struck in the preamble of the WTO Agreement does not provide specific guidance to the present issue.477 They do not find any concrete evidence that indicates Members’ desire to allow GATT Art. XX defense in the
474 China – Raw Materials AB Report, ¶ 305.
475 Id. 306.
476 Id.
477 Spiegel-Feld & Switzer, supra note 62, at 28.
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AP.478 Moreover, they think that allowing the availability of GATT Art. XX will offset “the balance that the members could most reasonably be believed to have chosen for themselves.”479 Feld and Switzer applaud the AB’s reasoning for it avoiding any over-reaching interpretation and charge of judicial activism.480 They share the AB’s view that the WTO judiciary should not read something into the text of the WTO arrangements that simply is not there.481
On the contrary, the AB’s analysis on the object and purpose of the WTO Agreement receives some criticisms. Qin considers the AB misunderstood the role of object and purpose in treaty interpretation.482 Qin explains that the object and purpose of a treaty can never provide “specific guidance” on a particular issue because objectives of a treaty are quite broad and general. This is the reason why VCLT Art. 31(1) stated that a treaty shall be interpreted . . . in the “light” of its object and purpose, instead of in specific guidance of its object and purpose. Qin concludes that the AB’s interpretation on object and purpose of the WTO Agreement effectively degraded the interpretative element of “object and purpose” to futility.
Gu criticizes AB’s reasoning on object and purpose as well and provides suggestions on the analysis of object and purpose in China – Raw Materials. Gu starts with examining the content of GATT Art. XX and observes that Art. XX serves a fundamental position within the WTO regime because it preserves Members’ inherent rights to balance trade and non-trade interests and codifies two major objectives of the WTO Agreement.483 Gu finds it hard to
478 Id.
479 Id.
480 On the contrary, Julia believes the WTO judiciary should be more active because it is unrealistic to expect the WTO legislative branch to clarify the relationship between the various WTO agreements. Qin, Pushing the Limits of Global Governance, supra note 73, at 298–99.
481 Spiegel-Feld & Switzer, supra note 62, at 28.
482 Qin, The Predicament of China’s “WTO-Plus” Obligation to Eliminate Export Duties, supra note 423, at 243;
Gu, supra note 47, at 22.
483 Gu, supra note 47, at 21.
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identify the object and purpose of the AP, and therefore resorts to the general object and purpose of the WTO Agreement.484 From the preamble of the WTO Agreement, Gu discovers that besides the objective of trade facilitation, the WTO regime aims to protect environment and promote sustainable development.485 Gu thus disagrees with the AB’s reasoning that the objectives of the WTO Agreement can never provide specific guidance and comments that the AB wrongfully limited its examination of object and purpose of the WTO Agreement to those that can provide specific guidance on the applicability matter.486
Baroncini also provides suggestions on the assessment of object and purpose.
Baroncini observes that the preamble of the WTO Agreement stipulates the object and purpose of the WTO, which characterize the whole WTO mechanism.487 The preamble makes clear that trade facilitation is not the only goal pursued in the WTO and nor is it absolute.488 Rather, Baroncini perceives the preamble to denote that trade facilitation is served as a tool to raise standards of living, to preserve environment and to promote sustainable development.489 This value of the WTO is specifically codified in the general exceptions clauses.490 The AP, as an integral part of the WTO Agreement, should be interpreted in line with this value of the WTO.491 Thus, Baroncini does not consider that the silence of paragraph 11.3 denotes China’s renouncement of its regulatory right to promote conservation of natural resources, environmental protection and public health, when accepting the WTO-plus obligations on
484 Id. at 22.
485 Id. at 21–22.
486 Id. at 22.
487 Baroncini, supra note 388, at 23.
488 Id.
489 Id.
490 Id.
491 Id. at 24.
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export duties.492 Instead, Baroncini advances that in order to pursue the goal of sustainable development enshrined in the preamble of the WTO Agreement, GATT Art. XX should be an applicable defense against violation of WTO-plus obligations in China’s AP.493
This thesis agrees that the AB wrongfully conducted its assessment on the object and purpose of the WTO Agreement. The object and purpose analysis is not an independent means of treaty interpretation.494 It serves to confirm the interpretation derived from the ordinary meaning and to ensure that practical effects of a treaty will not be diminished.495 Object and purpose assume a supplementary role in treaty interpretation because objectives or goals of a treaty are usually quite broad and vague and do not include substantive obligations. This nature makes it hard to act as an independent interpretative factor in the operation of treaty interpretation.496 Thus, it is unrealistic to expect the object and purpose of a treaty to provide an answer to a specific interpretive issue. This thesis agreed with scholars’ criticism that the AB falsely expected the objectives of the WTO Agreement can provide specific answer to the applicability issue.497 The objectives of the WTO Agreement cannot provide a yes or no answer to the applicability of GATT Art. XX in the AP, and nor can these objectives affirmatively accrue a right to invoke GATT Art. XX to China. Rather, this thesis proposes that the objectives of the WTO Agreement, as an indicator of the value of the WTO, should serve as a confirmation of contextual interpretation. That is, whether the contextual interpretation of paragraph 11.3 is in line with or hinder the objectives of the WTO Agreement
492 Id.
493 Id.
494 ULF LINDERFALK, ON THE INTERPRETATION OF TREATIES -THE MODERN INTERNATIONAL LAW AS EXPRESSED IN THE 1969VIENNA CONVENTION ON THE LAW OF TREATIES 203 (2007).
495 GARDINER, supra note 430, at 190; DÈORR &SCHMALENBACH, supra note 191, at 545.
496 GARDINER, supra note 430, at 190.
497 Qin, The Predicament of China’s “WTO-Plus” Obligation to Eliminate Export Duties, supra note 423, at 243.
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and the AP.498 This approach is also advanced by Qin in interpreting WTO-plus obligations.499 Thus, this thesis’s proposal on the examination of object and purpose is slightly different from the scholars mentioned above.