MJIEL Vol 8 Issue 2 2011 - Editorial

Communication Flows in International Economic Law



The Appellate Body of the WTO in its recent decision in EC � Aircraft has tried to provide clarification of Article 31(3)(c) of the Vienna Convention on the Law of Treaties 1969 viz., �any relevant rules of international law applicable in the relations between the parties�. It confirmed that the rules to be taken into account must be relevant and must be rules of International Law.[1]  Rules of International Law

encompass not only treaty norms but also customary international law and general principles of law recognized by civilized nations.[2] As to the meaning of �parties� the

Appellate Body observed:[3]


845. An interpretation of �the parties� in Article 31(3)(c) should be guided by the Appellate Body's statement that "the purpose of treaty interpretation is to establish the common intention of the parties to the treaty.� This suggests that one must exercise caution in drawing from an international agreement to which not all WTO Members are party. At the same time, we recognize that a proper interpretation of the term "the parties" must also take account of the fact that Article 31(3)(c) of the Vienna Convention is considered an expression of the �principle of systemic integration� which, in the words of the ILC, seeks to ensure that �international obligations are interpreted by reference to their normative environment� in a manner that gives �coherence and meaningfulness� to the process of legal interpretation. In a multilateral context such as the WTO, when recourse is had to a non-WTO rule for the purposes of interpreting provisions of the WTO agreements, a delicate balance must be struck between, on the one hand, taking due account of an individual WTO Member�s international obligations and, on the other hand, ensuring a consistent and harmonious approach to the interpretation of WTO law among all WTO Members. (Footnotes omitted)


The Appellate Body thus has not ruled out the possibility of taking into account in the interpretative process an international agreement to which not all the members of the WTO are �parties� to. At any rate this is a possible interpretation to the Appellate Body statement which the Appellate Body could have stated as such. However, it did not. Although it was not necessary for it to do so in the circumstances of the case, the approach adopted by the Appellate Body is one of fence sitting diplomacy but also mindful of the future power of the Appellate Body in the interpretative process. 


  Asif H Qureshi



[1] See para 841 of EC � Aircraft, AB WT/DS316/AB/R, 18 May 2011.

[2] See Article 38 of the Statute of the International Court of Justice.

[3] EC � Aircraft, AB WT/DS316/AB/R, 18 May 2011.


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