The Interaction between World Trade Organisation (WTO) Law and External International Law (A Prologue to a Theory)

265 Pages·2011·2.85 MB·English

by  Ronnie R.F. Yearwood

The Interaction between
World Trade Organisation
(WTO) Law and External
International Law
International legal scholarship is concerned with the fragmentation of international
law into specialised legal systems such as trade, environment and human rights.
Fragmentation raises questions about the inter-systemic interaction between the
various specialised systems of international law. This study conceptually focuses
on the interaction between World Trade Organisation (WTO) law and external
international law. It introduces a legal theory of WTO law, constrained openness, as a
way to understand that interaction. The idea is that WTO law, from its own inter-
nal point of view, constructs its own law. The effect is that external international
law is not incorporated into WTO law wholesale, but is (re)constructed as WTO
law. It follows that legal systems do not directly communicate with each other.
Therefore, to influence WTO law, an indirect strategic approach is required,
which recognises the functional nature of the differentiated systems of the frag-
mented international legal system.
Ronnie R. F. Yearwood, BSc., LL.M, PhD has worked for the Prime Minister’s
Office (Barbados) with a special focus on the Caribbean Single Market and
Economy. He has lectured in Caribbean politics and sociology in Barbados, and
in law at Durham University, Newcastle University, University College London
(UCL) and the School of Oriental and African Studies (SOAS), University of
London.
Routledge Research in International
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The Interaction between
World Trade Organisation
(WTO) Law and External
International Law
The constrained openness of WTO
law (a prologue to a theory)
Ronnie R. F. Yearwood
First published 2012
by Routledge
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Simultaneously published in the USA and Canada
by Routledge
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Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2012 Ronnie R. F. Yearwood
The right of Ronnie R. F. Yearwood to be identifi ed as the author of the
work has been asserted in accordance with sections 77 and 78 of the
Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or
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explanation without intent to infringe.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
Yearwood, Ronnie R.F.
The interaction between WTO law and external international law :
the constrained openness of WTO law / Ronnie R.F. Yearwood.
p. cm. — (Routledge research in international economic law)
ISBN 978–0–415–56516–5 (hardback)
1. World Trade Organization. 2. Foreign trade regulation.
3. Free trade. 4. International economic relations.
5. International law. I. Title.
K4610.Y43 2012
343'.087—dc22
2011003437
ISBN: 978–0–415–56516–5 (hbk)
ISBN: 978–0–203–80767–5 (ebk)
Typeset in Baskerville MT by Swales & Willis Ltd, Exeter, Devon
With love, to my ‘mummy’ Grace Yearwood, and my
brothers Romell and Tyrone, and my ‘mom’ Rosalind
Mayers and her family
With love to Lucy Weidner
To Denys Springer my dad and Ben Stephens my friend
who left this world for another world. May they find more
peace than us left behind.
‘Resolving conflict with superficial means’
Mark Titchner, 2002. Concrete, carved wood, electric motor, paint.
(Courtesy the Artist and Vilma Gold, London)
Contents
Table of cases xi
Preface xviii
Acknowledgements xx
Abbreviations xxiii
Prologue 1
0.1 The tragedy of choice: to write is to choose 1
0.2 There is no magic but in the pretence 7
0.3 Outline of my approach 8
0.4 Outline of my argument 19
0.5 Mr. Palomar, Sisyphus and Alice 22
1 Introduction: the fragmented nature of international law 26
1.0 Introduction 26
1.1 Definitional sketch of fragmentation 28
1.2 Rational reconstruction 34
1.3 The rule of recognition 36
1.3.1 The internal point of view 37
1.3.2 Hart’s circularity 40
1.3.3 Dworkin’s challenge to Hart 43
1.4 The counter-factual rule of recognition: the beginnings of a theory of WTO law 45
1.5 Conclusion 53
2 The inadequacy of the professional tool box of treaty
interpretation as an account of fragmentation 55
2.0 Introduction 55
2.1 Lex specialis as an account of fragmentation and WTO law 55
2.1.1 The problems with lex specialis as an account
of fragmentation 57
viii Contents
2.2 Lex posterior as an account of fragmentation and WTO law 58
2.2.1 The problems of lex posterior as an account
of fragmentation: the example of WTO law
and the Convention for International Trade
in Endangered Species 60
2.3 Treaty interpretation as an account of fragmentation and WTO law 61
2.3.1 The problems with the Vienna Convention
on the Law of Treaties Articles 31 and 32 as an
account of fragmentation 64
2.4. The interpretative approaches of the WTO adjudicating bodies 67
2.4.1 The example of EC – Biotech 69
2.5 Conclusion 74
3 The constrained openness of WTO law 75
3.0 Introduction 75
3.1 The continuation of building a theory of WTO law 76
3.2 The internal point of view of the WTO adjudicating bodies 80
3.2.1 The (re)construction of external international
law into WTO law 85
3.2.2 The Petersmann–Alston debate 89
3.3 Fragmentation reconsidered 92
3.4 Indirectly and strategically influencing WTO law 95
3.5 Conclusion 101
4 The debate on the interaction between WTO law and
external international law 103
4.0 Introduction 103
4.1 Model I: WTO law as a limited domain 104
4.2 Model II: WTO law as open 105
4.3 Model III: WTO law as privileged 106
4.4 The structural nature of the debate 107
4.5 Resolution of conflict by superficial means 109
4.5.1 Models I and II on the purpose of Articles 3.2 and 19.2 110
4.5.2 The distinction between jurisdiction and applicable law 111
4.5.3 Illustrating the debate 113
4.6 The constrained openness of WTO law: identifying the purpose of WTO law 114
4.6.1 Distilling the features of a theory: mapping constrained
openness through Calvino’s Invisible Cities 123
4.7 Conclusion 126
Contents ix
5 The precautionary principle and the WTO Agreement
on Sanitary and Phytosanitary Measures 128
5.0 Introduction 128
5.1 The precautionary principle 129
5.2 The gateway approach for the incorporation of the precautionary
principle into WTO law 132
5.3 Overview of the SPS Agreement 133
5.3.1 Compliance with WTO/GATT is not necessarily
an SPS defence 135
5.3.2 The ‘right’ to take an SPS measure 137
5.3.3 Definition and coverage of an SPS measure 138
5.3.4 Harmonisation of international standards and the
SPS Agreement 141
5.3.5 The scientific requirements of the SPS Agreement 142
5.4 The precautionary principle and the texts of the SPS Agreement 145
5.5 The (re)construction of precaution as a variable in the practice of WTO law 148
5.5.1 EC – Hormones and initial thoughts on (re)construction of
external international law 148
5.5.2 The scientific requirement to maintain an SPS measure 151
5.5.3 The two different definitions and evidentiary standards of
risk assessment 154
5.5.4 The scientific risk assessment requirement of Article 5.1
and its relationship to Article 5.5 156
5.5.5 Insufficient evidence, showing uncertainty and the
provisional SPS measure of Article 5.7 158
5.5.6 The right of a Member to set a higher level of SPS
protection, standard of review and Article 3.3 162
5.5.7 Returning to EC – Hormones: (re)constructing precaution
into a trade law variable 167
5.6 Rethinking the incorporation of the precautionary principle in WTO law 172
5.7 Conclusion 174
6 Examples of interaction between WTO law and
external international law 175
6.0 Introduction 175
6.1 A bilateral agreement: EC – Poultry 176
6.1.1 Case commentary: EC – Poultry 180
6.1.2 Case analysis: EC – Poultry 182
6.1.3 Summary: EC – Poultry 184
6.2 An agreement between a WTO Member and an international
organisation: Argentina –Textiles and Apparels 185