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I.3.1 General rules of treaty interpretation —
Article 31 of the Vienna Convention back to top
I.3.1.1 US —
Gasoline, p. 17, DSR 1996:I, p. 3 at 16
(WT/DS2/AB/R)
The general rule of interpretation [as set out
in Article 31(1) of the Vienna Convention on the Law of Treaties] has
attained the status of a rule of customary or general international law.
As such, it forms part of the “customary rules of interpretation of
public international law” which the Appellate Body has been directed,
by Article 3(2) of the DSU, to apply in seeking to clarify the
provisions of the General Agreement and the other “covered
agreements” of the Marrakesh Agreement Establishing the World Trade
Organization (the “WTO Agreement”). That direction
reflects a measure of recognition that the General Agreement is
not to be read in clinical isolation from public international law.
I.3.1.2 Japan — Alcoholic Beverages II, p.
34, DSR 1996:I, p. 97 at 122-123
(WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R)
… WTO rules are reliable, comprehensible and
enforceable. WTO rules are not so rigid or so inflexible as not to leave
room for reasoned judgements in confronting the endless and
ever-changing ebb and flow of real facts in real cases in the real
world. They will serve the multilateral trading system best if they are
interpreted with that in mind. In that way, we will achieve the “security
and predictability” sought for the multilateral trading system by the
Members of the WTO through the establishment of the dispute settlement
system.
I.3.1.3 India — Patents (US), para. 46
(WT/DS50/AB/R)
… These rules must be respected and applied
in interpreting the TRIPS Agreement or any other covered
agreement. … Both panels and the Appellate Body must be guided by the
rules of treaty interpretation set out in the Vienna Convention,
and must not add to or diminish rights and obligations provided in the WTO Agreement.
I.3.1.4 Argentina — Textiles and Apparel, para. 42
(WT/DS56/AB/R, WT/DS56/AB/R/Corr.1)
… The Panel relies heavily on what it
characterizes as “past GATT practice”, without undertaking any
analysis of the ordinary meaning of the terms of Article in their
context and in the light of the object and purpose of the GATT 1994, in
accordance with the general rules of treaty interpretation set out in
Article 31 of the Vienna Convention.…
I.3.1.5 US — Carbon Steel, paras. 61-62
(WT/DS213/AB/R, WT/DS213/AB/R/Corr.1)
… we recall that Article 3.2 of the DSU
recognizes that interpretative issues arising in WTO dispute settlement
are to be resolved through the application of customary rules of
interpretation of public international law. It is well settled in WTO
case law that the principles codified in Articles 31 and 32 of the Vienna
Convention on the Law of Treaties (the “Vienna Convention”)
are such customary rules. …
… the task of interpreting a treaty
provision must begin with its specific terms. …
I.3.2 Text. See also Interpretation,
Legitimate expectations (I.3.5); Municipal Law (M.5)
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I.3.2.1 Japan — Alcoholic Beverages II, p.
12, DSR 1996:I, p. 97 at 105
(WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R)
Article 31 of the Vienna Convention
provides that the words of the treaty form the foundation for the
interpretive process: “interpretation must be based above all upon the
text of the treaty”. …
I.3.2.2 EC — Hormones, para. 181
(WT/DS26/AB/R, WT/DS48/AB/R)
… The fundamental rule of treaty
interpretation requires a treaty interpreter to read and interpret the
words actually used by the agreement under examination, not words the
interpreter may feel should have been used.
I.3.2.3 India — Patents (US), para. 45
(WT/DS50/AB/R)
… The duty of a treaty interpreter is to
examine the words of the treaty to determine the intentions of the
parties. This should be done in accordance with the principles of treaty
interpretation set out in Article 31 of the Vienna Convention.
But these principles of interpretation neither require nor condone the
imputation into a treaty of words that are not there or the importation
into a treaty of concepts that were not intended.
I.3.2.4 US — Shrimp, para. 114
(WT/DS58/AB/R)
… A treaty interpreter must begin with, and
focus upon, the text of the particular provision to be interpreted. It
is in the words constituting that provision, read in their context, that
the object and purpose of the states parties to the treaty must first be
sought. Where the meaning imparted by the text itself is equivocal or
inconclusive, or where confirmation of the correctness of the reading of
the text itself is desired, light from the object and purpose of the
treaty as a whole may usefully be sought.
I.3.2.5 Argentina — Footwear (EC), para. 91
(WT/DS121/AB/R)
To determine the meaning of the clause — “as
a result of unforeseen developments and of the effect of the obligations
incurred by a Member under this Agreement, including tariff concessions
… “ — in sub-paragraph (a) of Article XIX:1, we must examine these
words in their ordinary meaning, in their context and in light of the
object and purpose of Article XIX. …
I.3.2.6 US — Line Pipe, para. 251
(WT/DS202/AB/R)
We do not see the text of Article 5.1, first
sentence, alone, as indicating one certain meaning. Therefore, in
keeping with our customary approach, we must seek the meaning of the
terms of this provision in their context and in the light of the object
and purpose of the Agreement.
I.3.2.7 US — Offset Act (Byrd Amendment),
para. 248
(WT/DS217/AB/R, WT/DS234/AB/R)
… It should be remembered that dictionaries
are important guides to, not dispositive statements of, definitions of
words appearing in agreements and legal documents.
I.3.2.8 US — Softwood Lumber IV, paras. 58-59
(WT/DS257/AB/R)
The meaning of a treaty provision, properly
construed, is rooted in the ordinary meaning of the terms used. …
… We note, … that dictionary definitions
have their limitations in revealing the ordinary meaning of a term. This
is especially true where the meanings of terms used in the different
authentic texts of the WTO Agreement are susceptible to
differences in scope. …
I.3.2.9 US — Gambling, para. 164 and
footnote 191
(WT/DS285/AB/R)
… In order to identify the ordinary meaning,
a Panel may start with the dictionary definitions of the terms to be
interpreted.191 But dictionaries, alone, are not necessarily
capable of resolving complex questions of interpretation, as they
typically aim to catalogue all meanings of words — be those
meanings common or rare, universal or specialized.
I.3.2.10 US — Gambling, para. 166
(WT/DS285/AB/R)
We have three reservations about the way in
which the Panel determined the ordinary meaning of the word “sporting”
in the United States’ Schedule. First, to the extent that the Panel’s
reasoning simply equates the “ordinary meaning” with the meaning of
words as defined in dictionaries, this is, in our view, too mechanical
an approach. Secondly, the Panel failed to have due regard to the fact
that its recourse to dictionaries revealed that gambling and betting
can, at least in some contexts, be one of the meanings of the word “sporting”.
Thirdly, the Panel failed to explain the basis for its recourse to the
meanings of the French and Spanish words “déportivos” and “sportifs”
in the light of the fact that the United States’ Schedule explicitly
states, in a cover note, that it “is authentic in English only.”
I.3.2.11 US — Gambling, para. 167
(WT/DS285/AB/R)
Overall, the Panel’s finding concerning the
word “sporting” was premature. In our view, the Panel should have
taken note that, in the abstract, the range of possible meanings of the
word “sporting” includes both the meaning claimed by Antigua
and the meaning claimed by the United States, and then continued its
inquiry into which of those meanings was to be attributed to the
word as used in the United States’ GATS Schedule.
I.3.3 Context
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I.3.3.1 US — Carbon Steel, para. 65
(WT/DS213/AB/R, WT/DS213/AB/R/Corr.1)
We have previously observed that the fact that
a particular treaty provision is “silent” on a specific issue “must
have some meaning”. In this case, the lack of any indication, in the
text of Article 21.3, that a de minimis standard must be applied
in sunset reviews serves, at least at first blush, as an indication that
no such requirement exists. However, as the Panel itself observed, the
task of ascertaining the meaning of a treaty provision with respect to a
specific requirement does not end once it has been determined that the
text is silent on that requirement. Such silence does not exclude the
possibility that the requirement was intended to be included by
implication.
I.3.3.2 US — Carbon Steel, para. 69
(WT/DS213/AB/R, WT/DS213/AB/R/Corr.1)
… the technique of cross-referencing is
frequently used in the SCM Agreement.… These
cross-references suggest to us that, when the negotiators of the SCM Agreement intended that the disciplines set forth in one
provision be applied in another context, they did so expressly. In the
light of the many express cross-references made in the SCM Agreement,
we attach significance to the absence of any textual link between
Article 21.3 reviews and the de minimis standard set forth in
Article 11.9. …
I.3.3.3 US — Carbon Steel, para. 104
(WT/DS213/AB/R, WT/DS213/AB/R/Corr.1)
In principle, when a provision refers, without
qualification, to an action that a Member may take, this serves as an
indication that no limitation is intended to be imposed on the manner or
circumstances in which such action may be taken. However, because the
task of interpreting a treaty provision does not end with a bare
examination of its text, the absence of an express limitation on Members’
ability to take a certain action is not dispositive of whether any such
limitation exists.
I.3.3.4 US — Gambling, para. 175
(WT/DS285/AB/R)
We note that Article 31(2) refers to the agreement
or acceptance of the parties. In this case, both W/120 and the
1993 Scheduling Guidelines were drafted by the GATT Secretariat rather
than the parties to the negotiations. It may be true that, on its own,
authorship by a delegated body would not preclude specific documents
from falling within the scope of Article 31(2). However, we are not
persuaded that in this case the Panel could find W/120 and the 1993
Scheduling Guidelines to be context. Such documents can be characterized
as context only where there is sufficient evidence of their constituting
an “agreement relating to the treaty” between the parties or of
their “accept[ance by the parties] as an instrument related to the
treaty”.
I.3.3.5 US — Gambling, paras. 176, 178
(WT/DS285/AB/R)
We do not accept, as the Panel appears to have
done, that, simply by requesting the preparation and circulation of
these documents and using them in preparing their offers, the parties in
the negotiations have accepted them as agreements or instruments related
to the treaty. Indeed, there are indications to the contrary. As the
United States pointed out before the Panel, the United States and
several other parties to the negotiations clearly stated, at the time
W/120 was proposed, that, although Members were encouraged to follow the
broad structure of W/120, it was never meant to bind Members to the CPC
definitions, nor to any other “specific nomenclature”, and that “the
composition of the list was not a matter for negotiations”. Similarly,
the Explanatory Note that prefaces the Scheduling Guidelines itself
appears to contradict the Panel in this regard, as it expressly provides
that, although it is intended to assist “persons responsible for
scheduling commitments”, that assistance “should not be considered
as an authoritative legal interpretation of the GATS.”
… therefore, the Panel erred in categorizing
W/120 and the 1993 Scheduling Guidelines as “context” for the
interpretation of the United States’ GATS Schedule. …
I.3.4 Domestic legislative history
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I.3.4.1 US — FSC (Article 21.5
— EC), para. 150
(WT/DS108/AB/RW)
… The legislative history also states that
the measure was adopted “to comply with decisions of a World Trade
Organization dispute panel and Appellate Body.” We take particular
note of these statements, though we do not believe that it would be
appropriate for us to end our inquiry here.
I.3.4.2 US — Offset Act (Byrd Amendment),
para. 259
(WT/DS217/AB/R, WT/DS234/AB/R)
… We note that the Panel referred to the “Findings
of Congress”, not as a basis for its conclusion that the CDSOA
constitutes a specific action against dumping or subsidies, but rather
as a consideration confirming that conclusion. We agree with the Panel
that the intent, stated or otherwise, of the legislators is not
conclusive as to whether a measure is “against” dumping or subsidies
under Article 18.1 of the Anti-Dumping Agreement or Article 32.1
of the SCM Agreement. Thus, it was not necessary for the
Panel to inquire into the intent pursued by United States legislators in
enacting the CDSOA and to take this into account in the analysis. The
text of the CDSOA provides sufficient information on the structure and
design of the CDSOA, that is to say, on the manner in which it operates,
to permit an analysis whether the measure is “against” dumping or a
subsidy. …
I.3.5 Legitimate expectations
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I.3.5.1 India — Patents (US), para. 42
(WT/DS50/AB/R)
… the Panel’s invocation of the “legitimate
expectations” of Members relating to conditions of competition melds
the legally-distinct bases for “violation” and “non-violation”
complaints under Article XXIII of the GATT 1994 into one uniform cause
of action. This is not consistent with either Article XXIII of the GATT
1994 or Article 64 of the TRIPS Agreement. …
I.3.5.2 India — Patents (US), para. 45
(WT/DS50/AB/R)
… The legitimate expectations of the parties
to a treaty are reflected in the language of the treaty itself. The duty
of a treaty interpreter is to examine the words of the treaty to
determine the intentions of the parties. This should be done in
accordance with the principles of treaty interpretation set out in
Article 31 of the Vienna Convention. But these principles of
interpretation neither require nor condone the imputation into a treaty
of words that are not there or the importation into a treaty of concepts
that were not intended.
I.3.5.3 India — Patents (US), para. 48
(WT/DS50/AB/R)
… we do not agree with the Panel that the
legitimate expectations of Members and private rights holders concerning
conditions of competition must always be taken into account in
interpreting the TRIPS Agreement.
I.3.5.4 EC — Computer Equipment, para. 84
(WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R)
The purpose of treaty interpretation under
Article 31 of the Vienna Convention is to ascertain the common
intentions of the parties. These common intentions cannot be
ascertained on the basis of the subjective and unilaterally determined
“expectations” of one of the parties to a treaty. Tariff
concessions provided for in a Member’s Schedule — the interpretation
of which is at issue here — are reciprocal and result from a
mutually-advantageous negotiation between importing and exporting
Members. A Schedule is made an integral part of the GATT 1994 by Article II:7 of the GATT 1994. Therefore, the concessions provided for in that
Schedule are part of the terms of the treaty. As such, the only rules
which may be applied in interpreting the meaning of a concession are the
general rules of treaty interpretation set out in the Vienna
Convention.
I.3.5.5 EC — Computer Equipment, para. 97
(WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R)
… we conclude that the Panel erred in
finding that the “legitimate expectations” of an exporting Member
are relevant for the purposes of interpreting the terms of Schedule LXXX
and of determining whether the European Communities violated Article II:1 of the GATT 1994. …
I.3.6 Preamble
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I.3.6.1 US — Shrimp, para. 153
(WT/DS58/AB/R)
We note once more that the preamble of the WTO Agreement demonstrates a recognition by WTO negotiators that
optimal use of the world’s resources should be made in accordance with
the objective of sustainable development. As this preambular language
reflects the intentions of negotiators of the WTO Agreement,
we believe it must add colour, texture and shading to our interpretation
of the agreements annexed to the WTO Agreement, in this
case, the GATT 1994. We have already observed that Article XX(g) of the
GATT 1994 is appropriately read with the perspective embodied in the
above preamble.
I.3.7 Principle of effectiveness
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I.3.7.1 US — Gasoline, p. 23, DSR 1996:I,
p. 3 at 21
(WT/DS2/AB/R)
… One of the corollaries of the “general
rule of interpretation” in the Vienna Convention is that
interpretation must give meaning and effect to all the terms of the
treaty. An interpreter is not free to adopt a reading that would result
in reducing whole clauses or paragraphs of a treaty to redundancy or
inutility.
I.3.7.2 Japan — Alcoholic Beverages II, p.
12, DSR 1997:I, p. 97 at 106
(WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R)
… A fundamental tenet of treaty
interpretation flowing from the general rule of interpretation set out
in Article 31 is the principle of effectiveness (ut res magis valeat
quam pereat). …
I.3.7.3 US — Underwear, p. 16, DSR
1997:I, p. 11 at 24
(WT/DS24/AB/R)
… The common, day-to-day, implication which
arises from this language is clear to us: the restraint is to be applied
in the future, after the consultations, should these prove
fruitless and the proposed measure not withdrawn. The principle of
effectiveness in treaty interpretation sustains this implication.
I.3.7.4 Canada — Dairy, para. 133
(WT/DS103/AB/R, WT/DS113/AB/R,
WT/DS103/AB/R/Corr.1, WT/DS113/AB/R/Corr.1)
… the task of the treaty interpreter is to
ascertain and give effect to a legally operative meaning for the terms
of the treaty. The applicable fundamental principle of effet utile
is that a treaty interpreter is not free to adopt a meaning that would
reduce parts of a treaty to redundancy or inutility.
I.3.7.5 Argentina — Footwear (EC), para. 81
(WT/DS121/AB/R)
… Yet a treaty interpreter must read all
applicable provisions of a treaty in a way that gives meaning to all
of them, harmoniously. And, an appropriate reading of this “inseparable
package of rights and disciplines” must, accordingly, be one that
gives meaning to all the relevant provisions of these two equally
binding agreements.
I.3.7.6 Argentina — Footwear (EC), para. 95
(WT/DS121/AB/R)
Our reading of these prerequisites does
precisely this, by making certain that all the relevant
provisions of the Agreement on Safeguards and Article XIX of the
GATT 1994 relating to safeguard measures are given their full meaning
and their full legal effect. …
I.3.7.7 Korea — Dairy, para. 81
(WT/DS98/AB/R)
In light of the interpretive principle of
effectiveness, it is the duty of any treaty interpreter to “read
all applicable provisions of a treaty in a way that gives meaning to all
of them, harmoniously.” An important corollary of this principle is
that a treaty should be interpreted as a whole, and, in particular, its
sections and parts should be read as a whole. Article II:2 of the WTO Agreement expressly manifests the intention of the Uruguay Round
negotiators that the provisions of the WTO Agreement and
the Multilateral Trade Agreements included in its Annexes 1, 2 and 3
must be read as a whole.
I.3.7.8 US — Section 211 Appropriations Act,
para. 338
(WT/DS176/AB/R)
Article 8 of the Paris Convention (1967)
covers only the protection of trade names; Article 8 has no other
subject. If the intention of the negotiators had been to exclude trade
names from protection, there would have been no purpose whatsoever in
including Article 8 in the list of Paris Convention (1967) provisions
that were specifically incorporated into the TRIPS Agreement.
To adopt the Panel’s approach would be to deprive Article 8 of the
Paris Convention (1967), as incorporated into the TRIPS Agreement
by virtue of Article 2.1 of that Agreement, of any and all meaning and
effect. …
I.3.7.9 US — Offset Act (Byrd Amendment),
para. 271
(WT/DS217/AB/R, WT/DS234/AB/R)
… The United States’ reasoning would
deprive Article 32.1 of the SCM Agreement of
effectiveness. As we have stated on many occasions, the internationally
recognized interpretive principle of effectiveness should guide the
interpretation of the WTO Agreement, and, under this
principle, provisions of the WTO Agreement should not be
interpreted in such a manner that whole clauses or paragraphs of a
treaty would be reduced to redundancy or inutility. …
I.3.7.10 US — Upland Cotton, para. 549
(WT/DS267/AB/R)
… Furthermore, as the Appellate Body has
explained, “a treaty interpreter must read all applicable provisions
of a treaty in a way that gives meaning to all of them, harmoniously”.
We agree with the Panel that “Article 3.1(b) of the SCM Agreement can
be read together with the Agreement on Agriculture provisions relating
to domestic support in a coherent and consistent manner which gives full
and effective meaning to all of their terms”.
I.3.8 Principle of in dubio mitius
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I.3.8.1 EC — Hormones, para. 165 and
footnote 154
(WT/DS26/AB/R, WT/DS48/AB/R)
… We cannot lightly assume that sovereign
states intended to impose upon themselves the more onerous, rather than
the less burdensome, obligation by mandating conformity or compliance
with such standards, guidelines and recommendations.154
To sustain
such an assumption and to warrant such a far-reaching interpretation,
treaty language far more specific and compelling than that found in
Article 3 of the SPS Agreement would be necessary.
I.3.9 Subsequent Practice
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I.3.9.1 Japan — Alcoholic Beverages II, p.
13, DSR 1996:I, p. 97 at 106
(WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R)
… a “concordant, common and consistent”
sequence of acts or pronouncements which is sufficient to establish a
discernible pattern implying the agreement of the parties [to a treaty]
regarding its interpretation. …
I.3.9.2 Japan — Alcoholic Beverages II, p.
15, DSR 1996:I, p. 97 at 108
(WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R)
… we do not agree with the Panel’s
conclusion in paragraph 6.10 of the Panel Report that “panel reports
adopted by the GATT CONTRACTING PARTIES and the WTO Dispute Settlement
Body constitute subsequent practice in a specific case” as the phrase
“subsequent practice” is used in Article 31 of the Vienna
Convention. …
I.3.9.3 Chile — Price Band System, paras. 213-214
(WT/DS207/AB/R)
Chile’s argument that it is “highly
relevant” that no country that had a price band system in place before
the conclusion of the Uruguay Round actually converted it into ordinary
customs duties gives rise to another question, namely: is this practice
relevant in interpreting Article 4.2 because it constitutes “subsequent
practice in the application of the treaty which establishes the
agreement of the parties regarding its interpretation”, within the
meaning of the customary rule of interpretation codified in Article 31(3)(b) of the Vienna Convention? …
Neither the Panel record nor the participants’
submissions on appeal suggests that there is a discernible pattern of
acts or pronouncements implying an agreement among WTO Members on the
interpretation of Article 4.2. Thus, in our view, this alleged practice
of some Members does not amount to “subsequent practice” within the
meaning of Article 31(3)(b) of the Vienna Convention.
I.3.9.4 Chile — Price Band System, para. 272
(WT/DS207/AB/R)
… The Schedule of one Member, and even the
scheduling practice of a number of Members, is not relevant in
interpreting the meaning of a treaty provision, unless that practice
amounts to “subsequent practice in the application of the treaty”
within the meaning of Article 31(3)(b) of the Vienna Convention. …
I.3.9.5 US — Upland Cotton, para. 625
(WT/DS267/AB/R)
… We also observe that whether WTO Members
with export credit guarantee programs have reported them in their export
subsidy notifications is not determinative for purposes of our inquiry
into the meaning of Article 10.2. In any event, the United States and
Brazil disagree about whether such programs are subject to notification
requirements.
I.3.9.6 US — Gambling, paras. 192-193
(WT/DS285/AB/R)
… in order for “practice” within the
meaning of Article 31(3)(b) to be established: (i) there must be a
common, consistent, discernible pattern of acts or pronouncements; and
(ii) those acts or pronouncements must imply agreement on the
interpretation of the relevant provision.
… Although the 2001 Guidelines were
explicitly adopted by the Council for Trade in Services, this was in the
context of the negotiation of future commitments and in order to
assist in the preparation of offers and requests in respect of such
commitments. As such, they do not constitute evidence of Members’
understanding regarding the interpretation of existing
commitments. Furthermore, as the United States emphasized before the
Panel, in its Decision adopting the 2001 Guidelines, the Council for
Trade in Services explicitly stated that they were to be “non-binding”
and “shall not modify any rights or obligations of the Members under
the GATS”. Accordingly, we do not consider that the 2001 Guidelines,
in and of themselves, constitute “subsequent practice” within the
meaning of Article 31(3)(b) of the Vienna Convention.
I.3.10 Supplementary means of interpretation
—
Article 32 of the Vienna Convention back to top
I.3.10.1 Japan — Alcoholic Beverages II,
p. 10, DSR 1996:I, p. 97 at 104
(WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R)
… There can be no doubt that Article 32 of
the Vienna Convention, dealing with the role of supplementary
means of interpretation, has also attained the same status [of a rule of
customary international law].
I.3.10.2 EC — Computer Equipment, para. 86
(WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R)
The application of these rules in Article 31
of the Vienna Convention will usually allow a treaty interpreter
to establish the meaning of a term. However, if after applying Article 31 the meaning of the term remains ambiguous or obscure, or leads to a
result which is manifestly absurd or unreasonable, Article 32 allows a
treaty interpreter to have recourse to:
… supplementary means of interpretation,
including the preparatory work of the treaty and the circumstances of
its conclusion.
With regard to “the circumstances of [the]
conclusion” of a treaty, this permits, in appropriate cases, the
examination of the historical background against which the treaty was
negotiated.
I.3.10.3 EC — Computer Equipment, para. 92
(WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R)
… In the light of our observations on “the
circumstances of [the] conclusion” of a treaty as a supplementary
means of interpretation under Article 32 of the Vienna Convention,
we consider that the classification practice in the European Communities
during the Uruguay Round is part of “the circumstances of [the]
conclusion” of the WTO Agreement and may be used as a
supplementary means of interpretation within the meaning of Article 32
of the Vienna Convention. …
I.3.10.4 EC — Computer Equipment, para. 93
(WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R)
… The purpose of treaty interpretation is to
establish the common intention of the parties to the treaty. To
establish this intention, the prior practice of only one of the
parties may be relevant, but it is clearly of more limited value than
the practice of all parties. In the specific case of the interpretation
of a tariff concession in a Schedule, the classification practice of the
importing Member, in fact, may be of great importance. However, the
Panel was mistaken in finding that the classification practice of the
United States was not relevant.
I.3.10.5 EC — Computer Equipment, para. 95
(WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R)
… Consistent prior classification practice
may often be significant. Inconsistent classification practice, however,
cannot be relevant in interpreting the meaning of a tariff
concession. …
I.3.10.6 EC — Poultry, para. 83
(WT/DS69/AB/R)
… the Oilseeds Agreement may serve as a supplementary
means of interpretation of Schedule LXXX pursuant to Article 32 of
the Vienna Convention, as it is part of the historical background
of the concessions of the European Communities for frozen poultry meat.
I.3.10.7 India — Quantitative Restrictions,
para. 94
(WT/DS90/AB/R)
We note India’s arguments relating to the
negotiating history of the BOP Understanding. However, in
the absence of a record of the negotiations on footnote 1 to the BOP Understanding, we find it difficult to give weight to these
arguments. We do not exclude that footnote 1 to the BOP Understanding
was “heavily negotiated”, and that it tries to accommodate opposing
views held by different parties to the negotiations on the BOP Understanding.
We are convinced, however, that the second sentence of footnote 1 does
not accord with the position held by India. To interpret the sentence as
proposed by India would require us to read into the text words which are
simply not there. Neither a panel nor the Appellate Body is allowed to
do so.
I.3.10.8 Canada — Dairy, para. 138
(WT/DS103/AB/R, WT/DS113/AB/R,
WT/DS103/AB/R/Corr.1, WT/DS113/AB/R/Corr.1)
In our view, the language in the notation in
Canada’s Schedule is not clear on its face. Indeed, the
language is general and ambiguous, and, therefore, requires special care
on the part of the treaty interpreter. For this reason, it is
appropriate, indeed necessary, in this case, to turn to “supplementary
means of interpretation” pursuant to Article 32 of the Vienna
Convention. …
I.3.10.9 US — Carbon Steel, paras. 77-78
and footnote 76
(WT/DS213/AB/R, WT/DS213/AB/R/Corr.1)
… The Panel formed [its] opinion after
examining a 1987 Note prepared by the Secretariat for the Uruguay Round
Negotiating Group on Subsidies and Countervailing Measures …
… in taking this approach, the Panel did not
explain why it thought that it was appropriate to rely on the 1987 Note,
but simply stated that “it is useful to consider the rationale for the
application of a de minimis standard to investigations, as reflected in
a Note by the Secretariat prepared in April 1987”.76… Even if it
were appropriate to rely on the 1987 Note in interpreting the SCM Agreement in accordance with the rules of interpretation set
forth in the Vienna Convention, selective reliance on such a
document does not provide a proper basis for the conclusion reached by
the Panel in this regard.
I.3.10.10 US — Carbon Steel, paras. 89-90
(WT/DS213/AB/R, WT/DS213/AB/R/Corr.1)
… we do not consider it strictly necessary
to have recourse to the supplementary means of interpretation identified
in Article 32 of the Vienna Convention.
In any event, we consider that recourse to the
negotiating history of the SCM Agreement tends to confirm
our view as to the meaning of Article 21.3. We note that the two issues,
namely the application of a specific de minimis standard in
investigations, and the introduction of a time-bound limitation on the
maintenance of countervailing duties, were considered to be highly
important and were the subject of protracted negotiations. Specific
provisions dealing with each of these two issues were viewed as
necessary to improve the existing disciplines of the GATT and of the
Tokyo Round Subsidies Code. The final texts of Article 11.9 and of
Article 21.3 were the result of a carefully negotiated compromise that
drew from a number of different proposals, reflecting divergent
interests and views. We further note in this respect that none of the
participants in this appeal pointed to any document indicating that the
inclusion of a de minimis threshold was ever considered in the
negotiations on sunset review provisions leading to the text of Article 21.3.
I.3.10.11 US — Upland Cotton, para. 623
(WT/DS267/AB/R)
We agree with the Panel that the meaning of
Article 10.2 is clear from the provision’s text, in its context and in
the light of the object and purpose of the Agreement on Agriculture,
consistent with Article 31 of the Vienna Convention. The Panel
did not think it necessary to resort to negotiating history for purposes
of its interpretation of Article 10.2. Even if the negotiating history
were relevant for our inquiry, we do not find that it supports the
United States’ position. This is because it does not indicate that the
negotiators did not intend to discipline export credit guarantees,
export credits and insurance programs at all. …
I.3.10.12 US — Gambling, para. 160
(WT/DS285/AB/R)
In the context of the GATS, Article XX:3
explicitly provides that Members’ Schedules are an “integral part”
of that agreement. Here, too, the task of identifying the meaning of a
concession in a GATS Schedule, like the task of interpreting any other
treaty text, involves identifying the common intention of
Members. … we consider that the meaning of the United States’ GATS
Schedule must be determined according to the rules codified in Article 31 and, to the extent appropriate, Article 32 of the Vienna
Convention.
I.3.10.13 US — Gambling, paras. 196-197
(WT/DS285/AB/R)
… this appeal does not raise the
question whether W/120 and the 1993 Scheduling Guidelines constitute “supplementary
means of interpretation, including the preparatory work of the treaty
and the circumstances of its conclusion”. Both participants agree that
they do, and we see no reason to disagree.
… a proper interpretation pursuant to the
principles codified in Article 31 of the Vienna Convention does
not yield a clear meaning as to the scope of the commitment made by the
United States in the entry “Other recreational services (except
sporting)”. Accordingly, it is appropriate to have recourse to the
supplemental means of interpretation identified in Article 32 of the Vienna
Convention. These means include W/120, the 1993 Scheduling
Guidelines, and a cover note attached to drafts of the United States’
Schedule.
I.3.10.14 US — Gambling, paras. 203-204
(WT/DS285/AB/R)
The Scheduling Guidelines thus underline the
importance of using a common format and terminology in scheduling, and
express a clear preference for parties to use W/120 and the CPC
classifications in their Schedules. At the same time, the Guidelines
make clear that parties wanting to use their own subsectoral
classification or definitions — that is, to disaggregate in a way that
diverges from W/120 and/or the CPC — were to do so in a “sufficiently
detailed” way “to avoid any ambiguity as to the scope of the
commitment.” The example given in the Scheduling Guidelines
illustrates how to make a positive commitment with respect to a discrete
service that is more disaggregated than a service subsector identified
in W/120. It is reasonable to assume that the parties to the
negotiations expected the same technique to be applied to exclude
a discrete service from the scope of a commitment, when the commitment
is made in a subsector identified in W/120 and the excluded service is
more disaggregated than that subsector.
In our view, the requisite clarity as to the
scope of a commitment could not have been achieved through mere omission
of CPC codes, particularly where a specific sector of a Member’s
Schedule, such as sector 10 of the United States’ Schedule, follows
the structure of W/120 in all other respects, and adopts precisely
the same terminology as used in W/120. … W/120 and the 1993 Scheduling
Guidelines were prepared and circulated … for the express purpose of
assisting those parties in the preparation of their offers. These
documents undoubtedly served, too, to assist parties in reviewing and
evaluating the offers made by others. They provided a common language
and structure which, although not obligatory, was widely used and relied
upon. In such circumstances, and in the light of the specific guidance
provided in the 1993 Scheduling Guidelines, it is reasonable to assume
that parties to the negotiations examining a sector of a Schedule that
tracked so closely the language of the same sector in W/120 would —
absent a clear indication to the contrary — have expected the sector to
have the same coverage as the corresponding W/120 sector. This is
another way of stating that, as the Panel observed, “unless otherwise
indicated in the Schedule, Members were assumed to have relied on W/120
and the corresponding CPC references.”
I.3.10.15 US — Gambling, paras. 205-206
(WT/DS285/AB/R)
Accordingly, the above excerpt from the 1993
Scheduling Guidelines, together with the linguistic similarities between
the two subsectors, provide strong support for interpreting subsector
10.D of the United States’ Schedule as corresponding to subsector 10.D
of W/120, notwithstanding the absence of CPC codes in the United States’
Schedule. …
… another element of the preparatory work of
the GATS suggests that the United States itself understood the
Scheduling Guidelines in this way and sought to comply with them in the
drafting of its GATS Schedule. Several drafts of the United States’
Schedule included [a] cover note [which confirms] …
I.3.10.16 US — Gambling, para. 211
(WT/DS285/AB/R)
The Panel did not explain clearly how it used
this document in interpreting the United States’ Schedule. The Panel
considered that, although the USITC Document did not constitute a “binding
interpretation”, it nevertheless “has probative value as to how the
US government views the structure and the scope of the US Schedule, and,
hence, its GATS obligations.” The document was dealt with under the
heading “Other supplementary means of interpretation”. In this
context, the Panel observed that “Article 32 of the Vienna
Convention is not necessarily limited to preparatory material, but
may allow treaty interpreters to take into consideration other relevant
material”. Yet the Panel also referred to the principle of “acquiescence”
and to a commentator’s statement that “Article 31:3(b) [of the Vienna
Convention] might also apply”. Notwithstanding these ambiguities,
it is clear from the Panel’s reasoning that it used the USITC
publication to “confirm” its interpretation of subsector 10.D in the
United States’ Schedule. In other words, the Panel’s interpretation
did not depend on its treatment of the USITC document.
I.3.11 Multiple authentic languages
— Article 33 of the Vienna Convention back to top
I.3.11.1 Chile — Price Band System, para. 271
(WT/DS207/AB/R)
… Indeed, the Panel came to this conclusion
by interpreting the French and Spanish versions of the term “ordinary
customs duty” to mean something different from the ordinary
meaning of the English version of that term. It is difficult to see how,
in doing so, the Panel took into account the rule of interpretation
codified in Article 33(4) of the Vienna Convention whereby “when
a comparison of the authentic texts discloses a difference of meaning
…, the meaning which best reconciles the texts … shall be
adopted.” (emphasis added).
I.3.11.2 EC — Bed Linen (Article 21.5
— India),
footnote 153 to para. 123
(WT/DS141/AB/RW)
According to Article 33.3 of the Vienna
Convention on the Law of Treaties, where treaties have been
authenticated in two or more languages, “[t]he terms of the treaty are
presumed to have the same meaning in each authentic text.” The Spanish
terms (“se han cumplido” and “hayan limitado”), in paragraphs 1
and 4 of Article 9, have the same temporal meaning as the English terms
(“have been fulfilled” and “have limited”). The French terms (“sont
remplies” and “auront limité”) can also accommodate this temporal
meaning.
I.3.11.3 US — Softwood Lumber IV, para. 59
and footnote 50
(WT/DS257/AB/R)
… in accordance with the customary rule of
treaty interpretation reflected in Article 33(3) of the Vienna
Convention on the Law of Treaties (the “Vienna Convention”),
the terms of a treaty authenticated in more than one language — like the
WTO Agreement — are presumed to have the same meaning in
each authentic text. It follows that the treaty interpreter should seek
the meaning that gives effect, simultaneously, to all the terms of the
treaty, as they are used in each authentic language.50
…
I.3.11.4 EC — Tariff Preferences, para. 147
(WT/DS246/AB/R)
… In our view, the stronger, more obligatory
language in both the French and Spanish texts — that is, using “as
defined in” rather than “as described in” — lends support to our
view that only preferential tariff treatment that is “generalized,
non-reciprocal and non-discriminatory” is covered under paragraph 2(a)
of the Enabling Clause.
I.3.11.5 US — Upland Cotton, para. 424 and
footnote 510
(WT/DS267/AB/R)
… We agree, however, that the Panel’s
description of “price suppression” in paragraph 7.1277 of the Panel
Report reflects the ordinary meaning of that term, particularly when
read in conjunction with the French and Spanish versions of Article 6.3(c),510 as required by Article 33(3) of the Vienna Convention on
the Law of Treaties (the “Vienna Convention”).
191. We note, in this
regard, the words of the panel in US — Section 301 Trade Act
[paragraph 7.22]:
back to text
For pragmatic reasons the normal usage … is
to start the interpretation from the ordinary meaning of the “raw”
text of the relevant treaty provisions and then seek to construe it in
its context and in the light of the treaty’s object and purpose.
154. The
interpretative principle of in dubio mitius, widely recognized in
international law as a “supplementary means of interpretation”, has
been expressed in the following terms:
back to text
“The principle of in dubio mitius applies
in interpreting treaties, in deference to the sovereignty of states.
If the meaning of a term is ambiguous, that meaning is to be preferred
which is less onerous to the party assuming an obligation, or which
interferes less with the territorial and personal supremacy of a
party, or involves less general restrictions upon the parties.” …
76. Panel Report, para. 8.60. It is, for example, unclear to us whether the Panel considered
the Note to form part of the preparatory work of the treaty and
intended to use it as a supplementary means of treaty interpretation
within the meaning of Article 32 of the Vienna Convention.
back to text
50. See Appellate Body
Report, EC — Bed Linen (Article 21.5 — India), footnote 153 to
para. 123. We also note that, in discussing the draft Article that was
later adopted as Article 33(3) of the Vienna Convention, the
International Law Commission observed that the “presumption [that the
terms of a treaty are intended to have the same meaning in each
authentic text] requires that every effort should be made to find a
common meaning for the texts before preferring one to another”. (Yearbook
of the International Law Commission (1966), Vol. II, p. 225) With
regard to the application of customary rules of interpretation in
respect of treaties authenticated in more than one language, see also
International Court of Justice, Merits, Case Concerning Elettronica
Sicula S.p.A. (ELSI) (United States v. Italy) 1989, ICJ Reports,
para. 132, where, in interpreting a provision of the Treaty of
Friendship, Commerce and Navigation between the United States of America
and the Italian Republic of 1948, the International Court of Justice
noted that it was possible to interpret the English and Italian versions
“as meaning much the same thing”, despite a potential divergence in
scope. back to text
510. The French version
states, in part, “la subvention … a pour effet d’ empêcher des
hausses de prix ou de déprimer les prix … dans une mesure notable”;
the Spanish version states, in part, “la subvención … tenga un
efecto significativo de contención de la subida de los precios,
reducción de los precios”. (emphasis added) back to text
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