Difference between Treaty Interpretation and Treaty Application and the Possibility to Account for Non-WTO Treaties during WTO Treaty Interpretation, The


THE DIFFERENCE BETWEEN TREATY
INTERPRETATION AND TREATY APPLICATION
AND THE POSSIBILITY TO ACCOUNT FOR NON-

WTO TREATIES DURING WTO TREATY
INTERPRETATION

Chang-fa Lo*

I. INTRODUCTION

In principle, different treaty systems' do not systemically affect each
other. However, under certain conditions, different treaty systems can affect
each other by relying on or accounting for treaty application or treaty
interpretation.2

There are a number of methods to account for a treaty in the operation of
another independent treaty. These different methods have limits regarding the
extent of their application and thus are worth exploring.

The World Trade Organization (WTO) treaty system is, to some extent,
self-contained. WTO treaty interpreters are not always permitted to account for
non-WTO treaties. Whether or not and to what extent non-WTO treaties can be
taken into account so that the WTO treaty system can be enriched by and can
avoid conflict with these non-WTO treaties is of great importance from a
theoretical and practical perspective. Theoretically, WTO treaty interpreters
accounting for non-WTO treaties could clarify the relationship between
different treaty systems. Practically, WTO treaty interpreters accounting for

* Professor Lo is a Justice of the Constitutional Court of the Republic of China in

Taiwan. He was formerly Chair Professor and a Lifetime Distinguished Professor at National
Taiwan University and was the Director of the Asian Centre for WTO and International Health
Law and Policy of the NTU College of Law. He received his SJD from Harvard University Law
School and has served as a commissioner at the Fair Trade Commission, the International Trade
Commission, and as a legal advisor to the government of Taiwan for the GATITWTO accession
negotiations. Professor Lo was appointed in 2006 by the Director General of the WTO for a
trade dispute between the EC and Brazil as a Panellist to issue a report to settle their dispute. In
2008 he was also appointed by the WTO as a member of the Permanent Group of Experts under
the Subsidies Agreement. Professor Lo teaches WTO Law, Government Procurement Law, Law
and Legal System of Taiwan, and Competition Law. He is the author of 12 books, including
"New Legal Order Under the WTO" and "The Legal Culture and System of Taiwan" published
by Kluwer Law International. Professor Lo can be reached at lohuang@ntu.edu.tw.

1. A "treaty system" used here refers to a group of treaties established under an
international regime. For instance, the various agreements under the World Trade Organization
are within a treaty system.

2. For purposes of this Article, the terms "relying on" and "taking into account" refer to
introducing other treaties or norms of international law through treaty interpretation or direct
application. Moreover, "taking into account" other treaties includes all situations where treaty
interpreters consider the language of other treaties, including relying on other treaties.



IND. INT'L & COMP. L. REV.

non-WTO treaties may help to harmonize the different treaty systems and
reduce potential conflicts between WTO treaties and other treaties (such as
environmental treaties).

This Article explores possible ways of accounting for non-WTO treaties
by focusing on the method of treaty interpretation. Although commentators
have debated the prudence of applying non-WTO treaties3 in the WTO system,4

this Article explores the various methods of accounting for non-WTO treaties
and clarifies the difference between the application and interpretation of WTO
treaties. This Article's focus on treaty interpretation will create a framework for
WTO treaty interpreters to apply and account for non-WTO treaties.

II. VARIOUS METHODS OF TAKING NON-WTO TREATIES INTO ACCOUNT

A. Through Incorporation

It is common for a treaty to incorporate some provisions of another treaty
or some external norms. There are a number of examples of such incorporation
in the WTO treaty system. For instance, Article 3(2) of the Understanding on
Rules and Procedures Governing the Settlement of Disputes (DSU) provides
that "[t]he Members recognize that it serves to preserve the rights and
obligations of Members under the covered agreements, and to clarify the
existing provisions of those agreements in accordance with customary rules of
interpretation of public international law."5 Thus, the DSU incorporates the
norm of customary rules of interpretation of public international law to assist
with the interpretation of WTO agreements. As discussed below, the Vienna
Convention on the Law of Treaties (VCLT) provides the customary rules for
interpretation of public international law, and they are consistently applied in

6all WTO dispute settlement cases. This is an example of incorporating external
norms into the WTO treaty system through a WTO provision.

There are examples of more explicit and direct incorporation of other

3. See generally Joost Pauwelyn, The Role of Public International Law in the WTO: How
Far Can We Go?, 95 AM. J. INT'L L. 535 (2001); see also Joel Trachtman, Jurisdiction in WTO
dispute settlement, in KEY ISSUES IN WTO DISPUTE SETrLEMENT: THE FIRST TEN YEARS 132, 137
(Rufus Yerxa & Bruce Wilson eds., 2005).

4. See Andrew D. Mitchell & David Heaton, The Inherent Jurisdiction of WTO Tribunals:
The Select Application of Public International Law Required by the Judicial Function, 31
MICH. J. INT'L L. 559, 577 (2010).

5. Understanding on Rules and Procedures Governing the Settlement of Disputes art. 3(2),
Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 2,
1869 U.N.T.S. 401, available at http://www.wto.org/english/docs-e/legale/28-dsu.pdf
[hereinafter DSU].

6. Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331,
available at untreaty.un.org/ilc/texts/instruments/english/conventions/11_1969.pdf [hereinafter
VCLT].

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international treaties into the WTO system. For instance, Article 2(1) of the
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS
Agreement) provides that "[i]n respect of Parts II, III and IV of this Agreement,
Members shall comply with Articles 1 through 12, and Article 19, of the Paris
Convention (1967)." 7 Similarly, Article 2(2) provides that "[n]othing in Parts I
to IV of this Agreement shall derogate from existing obligations that Members
may have to each other under the Paris Convention, the Berne Convention, the
Rome Convention and the Treaty on Intellectual Property in Respect of
Integrated Circuits., 8

Furthermore, Article 9(1) of the TRIPS Agreement provides that
"[m]embers shall comply with Articles 1 through 21 of the Berne Convention
(1971) and the Appendix thereto. However, Members shall not have rights or
obligations under this Agreement in respect of the rights conferred under
Article 6bis of that Convention or of the rights derived therefrom." 9 Under
these articles, the Paris Convention, the Berne Convention, the Rome
Convention, and the Treaty on Intellectual Property in Respect of Integrated
Circuits, or some provisions of them, have become an integral part of the
TRIPS Agreement and can be directly applied to one another accordingly.

Another example of incorporation is found in Article 2.4 of the
Agreement on Technical Barriers to Trade (TBT Agreement), which requires
Members to follow international standards.' 0 Article 2.4 provides:

Where technical regulations are required and relevant
international standards exist or their completion is imminent,
Members shall use them, or the relevant parts of them, as a
basis for their technical regulations except when such
international standards or relevant parts would be an
ineffective or inappropriate means for the fulfilment of the
legitimate objectives pursued, for instance because of
fundamental climatic or geographical factors or fundamental
technological problems."

These international standards are set forth by other international organizations.

7. Agreement on Trade-Related Aspects of Intellectual Property Rights art. 2(1), Apr. 15,
1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869
U.N.T.S. 299, available at http://www.wto.org/english/docs-e/legal-e/27-trips.pdf [hereinafter
TRIPS Agreement].

8. Id. art. 2(4).
9. Id. art. 9(l).

10. Agreement on Technical Barriers to Trade art. 2.4, Apr. 15, 1994, Marrakesh
Agreement Establishing the World Trade Organization, Annex IA, 1868 U.N.T.S. 120,
available at http://www.wto.org/english/docs-e/legal-e/17-tbt.pdf [hereinafter TBT
Agreement].

11. Id.

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IND. INT'L & COMP. L. REv.

They are non-WTO norms. Thus, the reliance on international standards is also
a type of incorporation by a WTO agreement of non-WTO norms. The
Agreement on the Application of Sanitary and Phytosanitary Measures (SPS
Agreement) has a similar provision concerning the application of international
standards. Article 3(3) provides in part, "Members may introduce or maintain
sanitary or phytosanitary measures which result in a higher level of sanitary or
phytosanitary protection than would be achieved by measures based on the
relevant international standards, guidelines or recommendations ....

When incorporating a non-WTO treaty or an external norm, a WTO
agreement can set forth qualifications. For instance, Article 1.1 of the TBT
Agreement defines TBT measures by referring to those adopted within the
United Nations system and international standardizing bodies.' 3 However,
Article 1.1 still requires the context, object, and purpose of the TBT Agreement
to be taken into account.14 Article 1.1 provides, "General terms for
standardization and procedures for assessment of conformity shall normally
have the meaning given to them by definitions adopted within the United
Nations system and by international standardizing bodies taking into account
their context and in the light of the object and purpose of this Agreement. 1 5

When a WTO agreement explicitly incorporates a non-WTO treaty into
its text, the interpreters of the WTO agreement are bound by the application of
the incorporated non-WTO treaty. The WTO treaty interpreters may also need
to interpret the treaty through different methods provided in Articles 31 and 32
of the VCLT. Thus, when interpreting the incorporated treaty, WTO treaty
interpreters might not only need to consider the context, object, purpose, and
subsequent practice of the WTO agreement, but also the incorporated non-
WTO treaty.

Concerning the form of incorporation, a relevant issue is whether
including a general statement in the preamble of a treaty can be considered as
an incorporation of another treaty. For example, the sustainable development
statement in the first paragraph of the preamble of the Agreement Establishing
the World Trade Organization (Establishing Agreement) could be considered
to indirectly incorporate other environmental agreements so that WTO treaty
interpreters are enabled to apply them. The pertinent portion of the preamble
provides:

Recognizing that their relations in the field of trade and
economic endeavour should be conducted... allowing for the
optimal use of the world's resources in accordance with the

12. Agreement on the Application of Sanitary and Phytosanitary Measures art. 3(3), Apr.
15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1 A, 1867
U.N.T.S. 493, available at http://www.wto.org/english/docs-e/legal-e/15-sps.pdf.

13. TBT Agreement, supra note 10, art. 1.1.
14. Id.
15. Id.

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objective of sustainable development, seeking both to protect
and preserve the environment and to enhance the means for
doing so in a manner consistent with their respective needs
and concerns at different levels of economic development[.J 16

There are a couple of reasons not to consider the statement in the preamble to
be an incorporation clause. First, the preamble is not the main text of the treaty.
The preamble helps treaty interpretation by providing context. As provided in
Article 31(2) of the VCLT, "The context for the purpose of the interpretation of
a treaty shall comprise, in addition to the text, including its preamble and
annexes... ,17 Since the VCLT has characterized the preamble as context for
the purpose of treaty interpretation, it should not be considered an incorporation
clause. Also, the statement in the Establishing Agreement does not specify
which environmental agreements are incorporated. Therefore, it would be
difficult for treaty interpreters to rely on such a general statement to directly
apply any specific environmental agreements. Nevertheless, this statement does
provide a contextual basis for accounting for environmental agreements through
treaty interpretation.

Another issue concerning the status of an incorporated treaty is
whether an incorporated non-WTO treaty should be viewed as the
"context" of the incorporating WTO agreement, or whether the
incorporated treaty becomes "text" of the incorporating WTO treaty. If
the incorporating treaty becomes text, treaty interpreters need not rely on
the concept of "context" to interpret it. The Panel in Canada -
Pharmaceutical Patents took the position that an incorporated non-
WTO treaty should be considered as "context" to be taken into account
by the treaty interpreter:

The Panel noted that, in the framework of the TRIPS
Agreement, which incorporates certain provisions of the major
pre-existing international instruments on intellectual property,
the context to which the Panel may have recourse for purposes
of interpretation of specific TRIPS provisions, in this case
Articles 27 and 28, is not restricted to the text, Preamble and
Annexes of the TRIPS Agreement itself, but also includes the
provisions of the international instruments on intellectual
property incorporated into the TRIPS Agreement, as well as
any agreement between the parties relating to these agreements
within the meaning of Article 31(2) of the Vienna Convention
on the Law of Treaties. Thus, as the Panel will have occasion

16. Marrakesh Agreement Establishing the World Trade Organization pmbl., Apr. 15, 1994,
1867 U.N.T.S. 154, available at http://www.wto.org/english/docse/legal-e/04-wto.pdf.

17. VCLT, supra note 6, art. 31(2).

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IND. INT'L & CoMP. L. REV.

to elaborate further below, Article 9(2) of the Berne
Convention for the Protection of Literary and Artistic Works
(1971) . . . is an important contextual element for the
interpretation of Article 30 of the TRIPS Agreement. 18

This Article disagrees with the Panel's view. A treaty interpreter is required to
look at the "context" to interpret a term in the "text" of a treaty. The "context"
is not the interpreted term itself; instead, the "context" is used to interpret the
term. However, a treaty incorporated into a WTO agreement becomes part of
the "text" of the WTO agreement. The application of the text from the
incorporated non-WTO treaty is by its nature an application of the
incorporating WTO agreement. It is incorrect to say that the incorporated treaty
is a "contextual element." Since the incorporated treaty has become the text of
the incorporating WTO agreement, the terms in the incorporated treaty may
require interpretation through determining their ordinary meaning and
examining the context of such terms.

B. Through Inherent or Implied Power

In addition to the direct incorporation of a non-WTO treaty by a WTO
agreement enabling WTO treaty interpreters to directly apply non-WTO
treaties, another complication arises regarding whether the treaty interpreters
can take into account non-WTO treaties in other situations. One way to account
for non-WTO treaties is to consider the application of other international norms
and inherent power of treaty interpreters. 19 Some commentators argue that the
WTO panels and the Appellate Body

do have inherent jurisdiction but that recognition of this
jurisdiction does not give them carte-blanche to use any
international law principles to resolve WTO disputes. Inherent
jurisdiction permits WTO Tribunals to apply only
international law rules that satisfy three conditions. First, the
application of the international law rule must be necessary for
the WTO Tribunal to properly exercise its adjudicatory
function. Second, the rule in question must have no
substantive content of its own. Third, its application must not
be inconsistent with the Covered Agreements. This third
condition is particularly important: it requires careful scrutiny
of the Covered Agreements in general terms and with regard
to the effect of the proposed application of a principle in a

18. Panel Report, Canada-Patent Protection of Pharmaceutical Products, 7.14,
WT/DSI 14/R (Mar. 17, 2000).

19. Mitchell & Heaton, supra note 4, at 561.

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given case.2°

The Appellate Body in Mexico - Taxes on Soft Drinks attributed a limited
scope of inherent power to the treaty interpreters. Their report provides:

WTO panels have certain powers that are inherent in their
adjudicative function. Notably, panels have the right to
determine whether they have jurisdiction in a given case, as
well as to determine the scope of their jurisdiction. In this
regard, the Appellate Body has previously stated that "it is a
widely accepted rule that an international tribunal is entitled to
consider the issue of its own jurisdiction on its own initiative,
and to satisfy itself that it has jurisdiction in any case that
comes before it." Further, the Appellate Body has also
explained that panels have "a margin of discretion to deal,
always in accordance with due process, with specific situations
that may arise in a particular case and that are not explicitly
regulated.'

Another way is to consider the application of other international norms to
be within the scope of the implied power of a tribunal. Some argue that the
power to apply other international laws might

be thought of as implied from the provisions of the Covered
Agreements establishing WTO Tribunals, taken as a whole
and read in the light of their objects and purposes (one of
which is the establishment ofjudicial dispute settlement). This
is effectively stating that the WTO Agreements impliedly
authorize panels to do all that is necessary to fulfill their
(judicial) function, which is an application of the principle of
utility.22

Reliance on the methods of inherent or implied power for the purpose of
accounting for other international norms is constrained by the nature of the
norms. If the applied international rule is a general rule of international law,
such as one that is necessary to fulfill the judicial function of treaty interpreters,
the application of non-WTO rules through reliance on these methods is less
difficult. However, if it is not a general rule of international law, these methods
are not very useful to the application of non-WTO rules. For instance, it is

20. Id.
21. Appellate Body Report, Mexico-Tax Measures on Soft Drinks and Other Beverages,

45, WT/DS308/AB/R (Mar. 6, 2006).
22. Mitchell & Heaton, supra note 4, at 569 (citations omitted).

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IND. INT'L & COMP. L. REv.

implausible for a treaty interpreter to ascertain that accounting for an
environmental treaty in interpreting a WTO agreement is an implied or inherent
power. Such a general statement allows treaty interpreters to add to or to
diminish the rights and obligations of the WTO Members. This result breaches
Article 3(2) of the DSU, which requires that recommendations and rulings
"cannot add to or diminish the rights and obligations provided in the covered
agreements.,

23

C. Through Treaty Interpretation

The last method of accounting for other treaties is through treaty
interpretation. Since all treaties are part of international law, the interpretation
of any treaty must be in accordance with the treaty interpretation principles
under public international law. WTO agreements are not exempt from this
general principle. The dispute settlement procedures under Article 3(2) of the
DSU requires treaty interpreters "to clarify the existing provisions of [the
covered] agreements in accordance with customary rules of interpretation of
public international law."24 The principles provided in Article 31 of the VCLT
are customary rules and have been uniformly applied in WTO dispute
settlement cases.25 Thus, the Appellate Body and the dispute settlement panels
have consistently relied on the VCLT provisions to interpret WTO provisions.

III. DIFFERENCE BETWEEN TREATY INTERPRETATION AND TREATY
APPLICATION

The inherent and implied powers and the incorporation of non-WTO
treaties in a WTO agreement can serve as the bases for the WTO panels and
Appellate Body to "apply" non-WTO treaties. Methods of treaty application are
concerned with the scope of laws, that is, the applicable laws or the sources of
law to be applied. Methods of treaty interpretation account for various factors
including other treaties in order to correctly and properly apply the interpreted
treaty.

Some argue that little difference exists between a treaty interpretation and
a treaty application. For instance, they contend:

The distinction between application and interpretation is not
concrete and it may in some cases be difficult to determine
whether a WTO Tribunal is applying international law or

23. DSU, supra note 5, art. 3(2).
24. Id.
25. Appellate Body Report, United States-Standards for Reformulated and Conventional

Gasoline, 17, WT/DS2/AB/R (Apr. 29, 1996) [hereinafter Gasoline Appellate Body Report];
Appellate Body Report, India-Patent Protection for Pharmaceutical andAgricultural Chemical
Products, 46, WT/DS50/AB/R (Dec. 19, 1997).

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simply using international law to interpret a WTO provision.
The answer to this question may not make a large difference
from a practical perspective.26

While this argument has some strength, it is not complete. From the perspective
that external rules should be applied, treaty interpretation and treaty application
are the same when accounting for non-WTO treaties.

In the process of a dispute settlement, treaty interpretation and treaty
application can both be involved. For instance, when interpreting the WTO
rules, a panel or the Appellate Body must apply the VCLT to interpret various
WTO agreements in order to account for non-WTO treaties. There are three
conceptual steps in this process: (1) applying the VCLT, (2) taking into account
non-WTO treaties, and (3) interpreting a WTO agreement. Thus, treaty
application (the application of non-WTO rules such as the VCLT) and treaty
interpretation (the interpretation of WTO agreements) are interrelated.

However, treaty interpretation and treaty application are different in
nature and have independent functions. "All interpretation pursues meaning
within a penumbra of discursive formations. '27 Treaty interpretation is a
process of discovering the proper meaning of treaty terms through various
interpreting methods; however, treaty application is a process of identifying the
source of law and applying it.28 Thus, it is important to separately analyze treaty
interpretation to decide whether non-WTO treaties can be taken into account.

IV. THE RELATIVELY SELF-CONTAINED WTO TREATY SYSTEM

Whether a treaty is self-contained depends on whether the treaty
interpreter can apply other treaties to decide the rights and obligations of the
parties involved. If a treaty is not self-contained, it would be easier to apply
other treaties without relying on treaty interpretation; whereas, if a treaty is self-
contained, the application of other treaties would be more difficult.

Some argue that the WTO system is not self-contained. 29 However, this
Article takes the view that most treaties are closed systems given that
interpreters are not authorized to rely on other treaties to decide the rights and
obligations between the parties under the interpreted treaties. The exception is
that customary international law is always applied to all treaties for the purpose

26. Mitchell & Heaton, supra note 4, at 570.
27. Diane A. Desierto, Necessity and "Supplementary Means of Interpretation "for Non-

Precluded Measures in Bilateral Investment Treaties, 31 U. PA. J. INT'L L. 827, 828 (2010).
28. For discussions of sources of law under the WTO dispute settlement procedure, see

DAVID PALMETER & PETROS C. MAVROIDIs, DISPUTE SETTLEMENT IN THE WORLD TRADE

ORGANIZATION: PRACTICE AND PROCEDURE 49-84 (2d ed. 2004).
29. Joost Pauwelyn, The Application of Non-WTO Rules of International Law in WTO

Dispute Settlement, in THE WORLD TRADE ORGANIZATION: LEGAL, ECONOMIC AND POLITICAL

ANALYSIS VOLUME 1 1405, 1406 (Patrick F. J. Macrory et al. eds., 2005).

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IND. INT'L & COMP. L. REv.

of interpretation.
In other words, the WTO system is basically self-contained from the

perspective of treaty application, but the WTO system is not self-contained
from the perspective of treaty interpretation. In the context of treaty
interpretation, the WTO system is not self-contained because treaty
interpretation is a process of determining the proper meaning of treaty terms. In
order to determine the proper meaning of treaty terms, the interpreters must rely
on customary rules of international law to interpret WTO agreements. The
VCLT contains the customary rules of interpretation of public international law
and is a source of law for the panels and the Appellate Body to interpret WTO
agreements.

Substantively, the WTO system is self-contained to a large extent because
the sources of law in the form of treaty provisions are the "covered agreements"
under the DSU only.30 Treaty interpreters of the WTO do not apply non-WTO
treaties as a source of law. Thus, Article 1 (1) indicates that the DSU applies to
"disputes brought pursuant to the consultation and dispute settlement

,,3 Iprovisions of the agreements listed in Appendix 1 to this Understanding ....
Strictly speaking, Article 1 (1) is not used purely for defining the source of law.
Article 1(1) of the DSU provides that WTO panels and the Appellate Body are
directed to only decide complaints under a WTO agreement.

The Appellate Body in EC - Poultry also indicated that an agreement not
included as a "covered agreement" cannot serve as the basis to decide a dispute.

Schedule LXXX is annexed to the Marrakesh Protocol to the
General Agreement on Tariffs and Trade 1994 (the
"Marrakesh Protocol"), and is an integral part of the GATT
1994. As such, it forms part of the multilateral obligations
under the WTO Agreement. The Oilseeds Agreement, in
contrast, is a bilateral agreement negotiated by the European
Communities and Brazil under Article XXVIII of the GATT
1947, as part of the resolution of the dispute in EEC -
Oilseeds. As such, the Oilseeds Agreement is not a "covered
agreement" within the meaning of Articles 1 and 2 of the
DSU. Nor is the Oilseeds Agreement part of the multilateral
obligations accepted by Brazil and the European Communities
pursuant to the WTO Agreement, which came into effect on 1
January 1995. The Oilseeds Agreement is not cited in any
Annex to the WTO Agreement. Although the provisions of
certain legal instruments that entered into force under the
GATT 1947 were made part of the GATT 1994 pursuant to
the language in Annex LA incorporating the GATT 1994 into

30. DSU, supra note 5, art. 1(1).
31. Id.

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the WTO Agreement, the Oilseeds Agreement is not one of
those legal instruments.32

V. VARIOUS METHODS OF TREATY INTERPRETATION

Non-WTO treaties cannot be introduced into the operation of the WTO
by direct application but can be introduced through treaty interpretation.
Regarding Article 3(2) of the DSU, the Appellate Body in U.S. - Gasoline
noted that "direction reflects a measure of recognition that the General

Agreement is not to be read in clinical isolation from public international
law.,, 33 If it refers to other non-WTO treaties, the requirement of not reading a
WTO agreement in clinical isolation from other treaty systems must be based

on treaty interpretation. Article 31 of the VCLT requires a treaty to be
"interpreted in good faith in accordance with the ordinary meaning to be given
to the terms of the treaty in their context and in the light of its object and
purpose. 34 Article 32 also requires that the circumstance of the conclusion of a
treaty be considered to confirm or determine the meaning.35

According to the Appellate Body, consideration of the textual contents is
the starting point for treaty interpretation and should be read in their context.
When the text is equivocal, the object and purpose of the treaty is considered.
The Appellate Body report in US - Shrimp provides:

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.36

In the sections to follow, this Article will discuss the ordinary meaning of the
textual contents, the context, the object and purpose, together with other
supplementary methods, to determine whether and to what extent treaty

32. Appellate Body Report, European Communities-Measures Affecting the Importation of
Certain Poultry Products, 79, WT/DS69/AB/R (July 13, 1998) (citations omitted) [hereinafter
Poultry Appellate Body Report].

33. Gasoline Appellate Body Report, supra note 25, at 17.
34. VCLT, supra note 6, art. 31(1).
35. Id. art. 32.
36. Appellate Body Report, UnitedStates-Import Prohibition of Certain Shrimp andShrimp

Products, 114, WT/DS58/AB/R (Oct. 12, 1998) [hereinafter Shrimp Appellate Body Report].

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IND. INT'L& COMP. L. REV.

interpretation can account for a non-WTO treaty.

A. Ordinary Meaning

Article 31(1) of the VCLT provides in part that "[a] treaty shall be
interpreted in good faith in accordance with the ordinary meaning to be given to
the terms of the treaty .... ",3 Treaty interpreters tend to rely on dictionaries to
interpret treaty terms of WTO agreements.38 However, a dictionary is not the
only method available to interpret the ordinary meaning of a treaty term. A
relevant question is whether a treaty interpreter can look at other treaties for the
purpose of giving ordinary meaning to the term. The Appellate Body has
suggested that they can. In its US - Shrimp report, the Appellate Body relied on
other international instruments to decide the ordinary meaning of the term
"exhaustible natural resources" in Article XX(g) of the General Agreement on
Tariffs and Trade 1994 (GATT 1994). The report provided:

From the perspective embodied in the preamble of the WTO
Agreement, we note that the generic term "natural resources"
in Article XX(g) is not "static" in its content or reference but
is rather "by definition, evolutionary". It is, therefore,
pertinent to note that modem international conventions and
declarations make frequent references to natural resources as
embracing both living and non-living resources.39

Examining non-WTO treaties to determine a term's ordinary meaning is helpful
in clarifying the meaning of the WTO treaty terms and avoiding possible
conflict with non-WTO treaties. The phrase "ordinary meaning" suggests that
the interpreted term must be used widely and frequently. The Appellate Body's
criterion of the "frequent references" made by "modem international
conventions and declarations" indicates that the interpreted term when
ordinarily used has a certain extent of breadth and frequency. However, the
requirement that a term be "informative" is confusing because it does not
address the essence of ordinary meaning.

Similarly, in the EC- Approval and Marketing ofBiotech Products Panel
Report, with regard to relying on other treaties to decide the ordinary meaning
of a treaty term, the panel provided:

The ordinary meaning of treaty terms is often determined on
the basis of dictionaries. We think that, in addition to

37. VCLT, supra note 6, art. 31(1).
38. See Chang-fa Lo, Good Faith Use of Dictionary in the Search of Ordinary Meaning

under the WTO Dispute Settlement Understanding, 1 J. INT'L DIsP. SETrLEMENT 431, 431
(2010).

39. Shrimp Appellate Body Report, supra note 36, 130 (citations omitted).

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dictionaries, other relevant rules of international law may in
some cases aid a treaty interpreter in establishing, or
confirming, the ordinary meaning of treaty terms in the
specific context in which they are used. Such rules would not
be considered because they are legal rules, but rather because
they may provide evidence of the ordinary meaning of terms in
the same way that dictionaries do. . . .In the light of the
foregoing, we consider that a panel may consider other
relevant rules of international law when interpreting the terms
of WTO agreements if it deems such rules to be informative.
But a panel need not necessarily rely on other rules of
international law, particularly if it considers that the ordinary
meaning of the terms of WTO agreements may be ascertained
by reference to other elements.4°

The EC - Approval and Marketing of Biotech Products panel and
Appellate Body reports confirm that non-WTO rules can be introduced into the
WTO system through treaty interpretation when searching for the "ordinary
meaning" of a WTO term. The Appellate Body and the panel reasoned that the
"frequent references" made by "modem international conventions and
declarations" and other relevant rules of international law are "informative" for
the purpose of interpreting WTO agreements by relying on non-WTO rules.41

B. Context

1. The Contextual Documents Include Agreements and Other
Instruments

Article 31 of the VCLT includes the following provisions concerning the
42

reliance on context for treaty interpretation. Article 3 1(1) provides that "a
treaty shall be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their context.' '43 Article 3 1(2)
provides:

The context for the purpose of the interpretation of a treaty
shall comprise, in addition to the text, including its preamble
and annexes: (a) any agreement relating to the treaty which

40. Panel Report, European Communities-Measures Affecting the Approval and Marketing
of Biotech Products, 7.92-.93, WT/DS291I/R, WT/DS292/R, WT/DS293/R (Sept. 29, 2006)
(citations omitted).

41. Shrimp Appellate Body Report, supra note 36, 130.
42. VCLT, supra note 6, art. 31.
43. Id. art. 31(1).

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IND. INT'L & COMP. L. REV.

was made between all the parties in connection with the
conclusion of the treaty; (b) any instrument which was made
by one or more parties in connection with the conclusion of
the treaty and accepted by the other parties as an instrument
related to the treaty.44

In terms of the non-WTO rules being considered as the "context" of the
WTO agreement, it should be noted that in addition to an agreement, other
"instruments," including unilateral ones, can also be considered as the context
of a treaty to be interpreted. The International Law Commission provides:

The principle on which [Article 31(2)] is based is that a
unilateral document cannot be regarded as forming part of the
"context"... unless not only was it made in connexion with
the conclusion of the treaty but its relation to the treaty was
accepted in the same manner by the other parties.... What is
proposed in [Article 31(2)] is that, for purposes of interpreting
the treaty, these categories of documents should not be treated
as mere evidence to which recourse may be had for the
purpose of resolving an ambiguity or obscurity, but as part of
the context for the purpose of arriving at the ordinary meaning
of the terms of the treaty.45

2. The Contextual Document Must be Relevant

Article 31(2) of the VCLT provides in part:

The context for the purpose of the interpretation of a treaty
shall comprise ... (a) any agreement relating to the treaty
which was made between all the parties in connection with the
conclusion of the treaty; (b) any instrument which was made
by one or more parties in connection with the conclusion of
the treaty and accepted by the other parties as an instrument
related to the treaty. 46

Thus, the main criteria for interpreting WTO agreements, is the "relationship"
between the WTO agreements and non-WTO agreements or instruments. In

44. Id. art. 31(2) (emphasis added).
45. Report of the Commission to the General Assembly, U.N. Doc., at 221, A/6309/Rev.I,

(1966), reprinted in [1967] 2 Y.B. Int'l L. Comm'n 172, U.N. Doc.
AICN.4/SER.A/1966/Add.1., available at http://untreaty.un.org/ilc/publications/yearbooks/
Ybkvolumes(e)/ILC1 966_v2 e.pdf (emphasis added).

46. VCLT, supra note 6, art. 31(2) (emphasis added).

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other words, the two must be "relating to," "in connection with," or "related to"
each other.47

Neither the Appellate Body nor any dispute settlement panels have
provided a direct interpretation of the terms "relating to," "in connection with,"
or "related to" as used in the VCLT. However, the term "relating to" is also
used in GATT Article XX(g) and the Appellate Body has previously interpreted
this term.4

8 In US - Gasoline, the Appellate Body indicated that although the
parties of the dispute agree that the term "relating to" used in Article XX(g) of
the GATT 1994 is an equivalent of "primarily aimed at," the "phrase 'primarily
aimed at' is not itself treaty language and was not designed as a simple litmus
test for inclusion or exclusion from Article XX(g). ' 49

The term "relating to" does not mean that the relationship should be as
close if one is the primary aim of the other. One commentator suggested that, in
order to be related to the treaty and thus a part of the "context," an instrument
"must be concerned with the substance of the treaty and clarify certain concepts
in the treaty or limit its field of application. It must equally be drawn up on the
occasion of the conclusion of the treaty., 50 Phrased differently, as long as there
is a substantive relationship between the two, it meets the requirement of
"relating to," "in connection with," and "related to."

3. Broad Consensus Is a Useful Indication of Relevance

The Appellate Body in EC - Chicken Cuts confirmed that the
Harmonized System (HS) constituted relevant "context" to interpret a
Member's schedule of concessions, and that the "broad consensus" among
WTO Members to rely on such non-WTO rules helped confirm the needed
relations.

The Harmonized System is not, formally, part of the WTO
Agreement, as it has not been incorporated, in whole or in
part, into that Agreement. Nevertheless, the concept of
"context", under Article 31, is not limited to the treaty text-
namely, the WTO Agreement-but may also extend to "any
agreement relating to the treaty which was made between all
the parties in connection with the conclusion of the treaty",
within the meaning of Article 31(2)(a) of the Vienna
Convention, and to "any instrument which was made by one
or more parties in connection with the conclusion of the treaty

47. Id.
48. General Agreement on Tariffs and Trade art. XX(g), Oct. 30, 1947, 61 Stat. A-11, 55

U.N.T.S. 194 [hereinafter GATT].
49. Gasoline Appellate Body Report, supra note 25, at 18-19.
50. IAN SINCLAIR, THE VIENNA CONVENTION ON THE LAW OF TREATIES 129 (2d ed. 1984)

(citation omitted).

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ND. INT'L & COMP. L. REv.

and accepted by the other parties as an instrument related to
the treaty", within the meaning of Article 31(2)(b) of the
Vienna Convention. Moreover, should the criteria in Article
31 (3)(c) be fulfilled, the Harmonized System may qualify as a
"relevant rule[] of international law applicable in the relations
between the parties". 5 1

The Appellate Body's report further provides:

[P]rior to, during, as well as after the Uruguay Round
negotiations, there was broad consensus among the GATT
Contracting Parties to use the Harmonized System as the basis
for their WTO Schedules, notably with respect to agricultural
products. In our view, this consensus constitutes an
"agreement" between WTO Members "relating to" the WTO
Agreement that was "made in connection with the conclusion
of' that Agreement, within the meaning of Article 31 (2)(a) of
the Vienna Convention. As such, this agreement is "context"
under Article 31 (2)(a) for the purpose of interpreting the WTO
agreements, of which the EC Schedule is an integral part. In
this light, we consider that the Harmonized System is relevant
for purposes of interpreting tariff commitments in the WTO
Members' Schedules.

52

The Panel Report on EC - Tariff Treatment of Certain Information Technology
Products also confirms that the HS can be used as context for interpreting
WTO agreements because of its "close link" with the WTO agreements. This
"close link" is shown by the relevant WTO agreements referring to the HS for
the purpose of defining product coverage:

In establishing that the HS provided relevant "context" for the
interpretation of a Member's schedule, the Appellate Body
took into consideration a number of factors. While noting that

51. Appellate Body Report, European Communities-Customs Classification of Frozen

Boneless Chicken Cuts, 195, WT/DS269/AB/R, WT/DS286/AB/R (Sept. 12, 2005)
[hereinafter Chicken Cuts Appellate Body Report].

52. Id. 1 199; see also Appellate Body Report, European Communities-Customs
Classification of Certain Computer Equipment, 89, WT/DS62/AB/R, WT/DS67/AB/R,
WT/DS68/AB/R (June 5, 1998) ("We are puzzled by the fact that the Panel, in its effort to
interpret the terms of [the EC Schedule], did not consider the Harmonized System and its
Explanatory Notes. We note that during the Uruguay Round negotiations, both the European
Communities and the United States were parties to the Harmonized System. Furthermore, it
appears to be undisputed that the Uruguay Round tariff negotiations were held on the basis of
the Harmonized System's nomenclature and that requests for, and offers of, concessions were
normally made in terms of this nomenclature.").

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the HS was not formally part of the WTO Agreement and was
not incorporated, in whole or in part, into that Agreement, the
Appellate Body observed that the vast majority of WTO
Members are also contracting parties to the HS and identified
what it considered was a "close link" between the HS and the
WTO Agreement. Specifically, the Appellate Body observed
that a number of WTO agreements resulting from the Uruguay
Round, including the Agreement on Rules of Origin (in
Article 9), the Agreement on Subsidies and Countervailing
Measures (in Article 27), and the Agreement on Textiles and
Clothing (in Article 2 and the Annex thereto), refer to the HS
for purposes of defining product coverage within the
agreement or the products subject to particular provisions. 53

The Panel Report on the same case further indicates that the Information
Technology Agreement (ITA) is an instrument that may be used to provide
context for WTO treaty interpretation because the ITA was proposed, drafted,
and agreed to by a subset of WTO Members and other states or separate custom
territories in the process of acceding to the WTO.54 In this regard, the Panel
Report lowers the "broad consensus" threshold. As long as there is a subset of
WTO Members engaged in the process of negotiating and concluding the ITA
and such Members modified their tariff schedules accordingly, the relationship
threshold is met. The relevant paragraphs provide:

Setting aside for the moment whether the ITA is a treaty or
not, Article 31(2) recognizes that both "agreements" and
"instruments" may qualify as context as long as they meet
certain conditions. The Vienna Convention refers to the
concepts of "agreement" and "instrument" within the
definition of "treaty" above. The statement by the International
Law Commission above implies that a qualifying "instrument"
may even be a unilateral "document" so long as it complies
with the additional requirements in Article 31 (2)(b) that it was
"made in connection with the conclusion of the treaty", and
"its relation to the treaty was accepted in the same manner by
the other parties". In light of this, it is useful to consider
whether the ITA is concerned with the substance of the treaty,
clarifies concepts in the WTO Agreement, or otherwise limits
its field of application, and the extent to which it was drawn

53. Panel Report, European Communities-Tariff Treatment of Certain Information

Technology Products, 7.440, WT/DS375/R, WT/DS376/R, WTIDS377/R (Aug. 16, 2010)

(citation omitted).
54. Id. 7.445.

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IND. INT'L & COMP. L. REV.

up on the occasion of the conclusion of the treaty.... At a
minimum, the ITA qualifies as an "instrument" for the
purposes of Article 31(2)(b). The ITA was proposed, drafted
and agreed to by a subset of WTO Members and states or
separate customs territories in the process of acceding to the
WTO. ITA participants in turn modified their WTO
Schedules, which themselves form part of the WTO
Agreement, following the conclusion and signing of the ITA.
In this sense, the parties recognized the ITA as an
"instrument" as we understand that term. 55

The Panel concluded that the ITA may serve as context within the meaning of

Article 31(2)(b) of the VCLT.56

4. Sufficient Linkage

The criteria given by the Appellate Body and the EC - Technology panel
for meeting the relationship requirement, as quoted above, include showing: a
broad consensus among the parties to use a non-WTO agreement as the basis
for a WTO agreement; the vast majority of the parties are also parties to the
non-WTO agreement; a number of WTO agreements refer to the non-WTO
agreement for purposes of defining the agreements' coverage; and a subset of
WTO Members engaged in the process of negotiating and concluding the
agreement and they amended their tariff schedules accordingly. 57 The terms
"relating to," "in connection with," and "related to" as used in Article 31(2) are
not very strict criteria to meet. These terms only require some connection or
relationship between the non-WTO agreement or instrument and the interpreted
WTO agreement.

The EC - Technology panel and Appellate Body reports confirm that the
HS is "context" as a result of the broad consensus among the parties to use the
HS as the basis for their WTO Schedules. The HS is "context" because the vast
majority of WTO Members are also contracting parties to the HS, and the
Members identified a "close link" between the HS and the WTO Agreement.
The ITA is "context" because it was made by a subset of WTO Members in
connection with the conclusion of the treaty and accepted by WTO Members as
an instrument related to the treaty. The WTO Members have proved a certain
amount of connection or relationship between the HS and the WTO tariff
schedules (the connection being the broad consensus to use the HS), between
the HS and the WTO Agreement (the connection being the close link) and
between the ITA and the WTO Agreement concerning the tariff schedule (the

55. Id. 7.376-77 (citations omitted).

56. Id. 7.383.

57. Id. 7.376-81.

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connection being that the ITA was proposed, drafted and agreed to by some
WTO Members and the participants of the ITA in turn modified their WTO
Schedules). In addition to these specific situations establishing needed
connections or relations, the needed connection or relation may also be
established as long as certain linkage exists for the purpose of accounting for a
non-WTO treaty to interpret a WTO agreement.

C. Subsequent Agreement or Practice and Relevant Rules

Article 31(3) of the VCLT provides:

There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding
the interpretation of the treaty or the application of its
provisions; (b) any subsequent practice in the application of
the treaty which establishes the agreement of the parties
regarding its interpretation; (c) any relevant rules of
international law applicable in the relations between the
parties.

58

Thus, the three named situations are subsequent agreement, subsequent
practice, and relevant rules of international law.

Subsequent agreement must concern "the interpretation of the
treaty or the application of its provisions., 59 It is rare for a non-WTO
treaty concluded between WTO Members to provide an interpretation of
a WTO agreement or the application of its provisions. Thus, the first
situation is not very relevant to the discussion in this Article.

Relevant rules of international law must be "relevant" and
"applicable" to the relationship between the parties. However, these
requirements are not very strict, and they should not be over utilized.
For instance, if all environmental agreements are considered relevant to
the WTO mentioning anything about the environment or sustainable
development, it would be too broad and would result in adding to or
diminishing the rights and obligations of WTO Members. Thus, when
the word "relevant" is interpreted, the interpreter should account for the
degree of relevancy between the non-WTO treaty and the relevant WTO
agreement. If the relevancy is remote, a WTO treaty interpreter should
not take the environmental agreement into account.

Additional cases confirm reliance on subsequent practice to assist
treaty interpretation. Commentators and WTO interpreters have
elaborated on some of the criteria. Subsequent practice must not be a

58. VCLT, supra note 6, art. 31(3) (emphasis added).
59. Id.

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single or sporadic practice. It must become a pattern of practice adopted
by WTO Members.

Ian Sinclair notes:

It should of course be stressed that paragraph 3(b) of Article
31 of the Convention does not cover subsequent practice in
general, but only a specific form of subsequent practice - that
is to say, concordant subsequent practice common to all the
parties. Subsequent practice which does not fall within this
narrow definition may nonetheless constitute a supplementary
means of inte retation within the meaning of Article 32 of the
Convention.o

The Appellate Body Report, Japan - Alcoholic Beverages I, explains
that "subsequent practice" within the meaning of Article 31(3)(b) entails 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." 61

The Appellate Body's Report in US - Gambling explains that there are
two elements for the purpose of establishing "subsequent practice": "(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., 62

In reference to the criteria for subsequent practice, the Appellate Body in
its Report on EC - Chicken provided:

We share the Panel's view that not each and every party must
have engaged in a particular practice for it to qualify as a
"common" and "concordant" practice. Nevertheless, practice
by some, but not all parties is obviously not of the same order
as practice by only one, or very few parties. To our mind, it
would be difficult to establish a "concordant, common and
discernible pattern" on the basis of acts or pronouncements of
one, or very few parties to a multilateral treaty, such as the
WTO Agreement.

63

Thus, the subsequent practice must be a "concordant, common and
consistent sequence of acts or pronouncements sufficient to establish a

60. SINCLAIR, supra note 50, at 138.
61. Appellate Body Report, Japan-Taxes on Alcoholic Beverages, 13, WT/DS8/AB/R,

WT/DS I O/ABIR, WT/DS 11 /AB/R (Oct. 4, 1996).
62. Appellate Body Report, United States-Measures Affecting the Cross-Border Supply of

Gambling and Betting Services, 192, WT/DS285/AB/R (Apr. 7, 2005).
63. Chicken Cuts Appellate Body Report, supra note 51, 259.

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discernible pattern" and the acts or pronouncements must imply the
agreement of the parties on the interpretation of the treaty term.
However it does not require each and every party to engage in the
practice.

Under these criteria, a non-WTO agreement can theoretically be a
subsequent practice for the purpose of interpreting a WTO agreement.
However, it is a rare situation where there is an agreement concluded
outside the WTO system where WTO members participate and practice
concordantly subsequent to the agreement to indicate the meaning or
intention of the WTO agreement.

D. Object and Purpose

Article 31 (1) of the VCLT requires treaty interpreters to assign ordinary
meaning to the terms of the treaty in their context and in the light of their
"object and purpose. '65 Normally, treaty interpreters must account for the
object and purpose of the whole agreement. For instance, the Appellate Body in
Argentina - Textiles and Apparel provided:

In accordance with the general rules of treaty interpretation set
out in Article 31 of the Vienna Convention, Article 11: 1(b),
first sentence, must be read in its context and in light of the
object and purpose of the GATT 1994. Article 11: 1(a) is part
of the context of Article 11:1(b); it requires that a Member
must accord to the commerce of the other Members "treatment
no less favourable than that provided for" in its Schedule. It is
evident to us that the application of customs duties in excess of
those provided for in a Member's Schedule, inconsistent with
the first sentence of Article 11:1(b), constitutes "less
favourable" treatment under the provisions of Article 11: 1 (a).66

Article 31 requires that ordinary meaning be given to the terms of the
67treaty when considering the treaty's object and purpose. Therefore, a treaty

interpreter must determine the object and purpose of the interpreted treaty.
WTO interpreters have little room to account for non-WTO treaties when
identifying the "object and purpose" of a WTO agreement.

64. Id. 26.
65. VCLT, supra note 6, art. 31(1).
66. Appellate Body Report, Argentina-Measures Affecting Imports of Footwear, Textiles,

Apparel and Other Items, 47, WT/DS56/AB/R (Mar. 27, 1998).
67. VCLT, supra note 6, art. 31(1).

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E. Circumstances of Conclusion

Article 32 of the VCLT provides supplementary means of
interpretation.68 It provides:

Recourse may be had to supplementary means of
interpretation, including the preparatory work of the treaty and
the circumstances of its conclusion, in order to confirm the
meaning resulting from the application of article 31, or to
determine the meaning when the interpretation according to
article 31: (a) leaves the meaning ambiguous or obscure; or (b)
leads to a result which is manifestly absurd or unreasonable.69

WTO jurisprudence confirms that non-WTO documents, including a WTO
Member's legislation and its court judgments, can be considered the
circumstances of conclusion of a WTO agreement. Thus non-WTO documents
may be taken into account by treaty interpreters when interpreting a WTO
agreement.

The Panel Report on EC- Chicken clearly indicates that EC regulations
can be "circumstances of conclusion" for the purpose of treaty interpretation of
WTO agreements. The Report provides that "the mere fact that an act, such as
EC Regulation No. 535/94, is unilateral, does not mean that that act is
automatically disqualified from consideration under Article 32 of the Vienna
Convention."70 The Panel reasoned that:

[S]ince EC Regulation No. 535/94 was published prior to the
conclusion of the EC Schedule, the WTO Membership may be
considered to have had constructive knowledge of that
Regulation at the time the EC Schedule was concluded for the
purposes of Article 32 of the Vienna Convention. In this
regard, we disagree with the European Communities that
Members should have specifically raised EC Regulation No.
535/94 during the verification period in order for it to form
part of the "circumstances of conclusion" 1

The Panel concluded "that EC Regulation No. 535/94 is relevant to the
conclusion of the EC Schedule and, therefore, qualifies as 'circumstances of
conclusion' of the EC Schedule within the meaning of Article 32 of the Vienna

68. Id. art. 32.
69. Id. (emphasis added).
70. Panel Report, European Communities-Customs Classification of Frozen Boneless

Chicken Cuts: Complaint by Brazil, 1 7.3 60, WT/DS269/R (May 30, 2005).
71. Id. T 7.361 (citation omitted).

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Convention."72 The same Panel Report also confirms that EC judgments can be
"circumstance of conclusion" for a WTO agreement, providing:

Regarding the question of whether or not court judgements
can be considered as "circumstances of conclusion" under
Article 32 of the Vienna Convention, the Panel recalls that, in
EC - Computer Equipment, the Appellate Body explicitly
stated that the importing Member's classification practice
during the Uruguay Round and that Member's "legislation"
that was applicable at that time should have been taken into

consideration under Article 32. As has been noted by the
parties in this case, the issue arises as to whether the Appellate
Body's list is exhaustive or, rather, is merely linked to the
particular facts of that case, implying that other unlisted items
may also qualify. The Appellate Body's report tends to
indicate that the latter interpretation is the valid one - that is,
the Appellate Body was merely making a pronouncement on
the basis of the facts that were available to it in that case rather
than seeking to provide an exhaustive list of items qualifying
as "circumstances of conclusion" in all cases. This would
suggest that a valid distinction cannot be drawn between, on
the one hand, EC legislation and, on the other hand, ECJ
judgements for the purposes of Article 32 of the Vienna
Convention. Accordingly, the Panel considers that court
judgements, such as the Dinter and Gausepohl judgements,
may be considered under Article 32 of the Vienna

Convention.73

The EC - Chicken Appellate Body Report confirms that those documents,
which are neither bilateral nor multilateral, can still be "circumstances of
conclusion" for the purpose of treaty interpretation:

Although we do not disagree with the general proposition by
Yasseen, we do not agree with the European Communities that
a "direct link" to the treaty text and "direct influence" on the
common intentions must be shown for an event, act, or
instrument to qualify as a "circumstance of the conclusion" of
a treaty under Article 32 of the Vienna Convention. An "event,
act or instrument" may be relevant as supplementary means of
interpretation not only if it has actually influenced a specific
aspect of the treaty text in the sense of a relationship of cause

72. Id. 7.364.
73. Id. 7.391 (citation omitted).

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IND. INT'L & COMP. L. REV.

and effect; it may also qualify as a "circumstance of the
conclusion" when it helps to discern what the common
intentions of the parties were at the time of the conclusion
with respect to the treaty or specific provision.... Thus, not
only "multilateral" sources, but also "unilateral" acts,
instruments, or statements of individual negotiating parties
may be useful in ascertaining "the reality of the situation
which the parties wished to regulate by means of the treaty"
and, ultimately, for discerning the common intentions of the
parties. . . .We agree with the Panel that "relevance", as
opposed to "direct influence" or "[genuine] "link", is the
"more appropriate criterion" to judge the extent to which a
particular event, act, or other instrument should be relied upon
or taken into account when interpreting a treaty provision in
the light of the "circumstances of its conclusion". 74

When a unilateral legislation or a judgment of a court qualifies as
the "circumstance of conclusion" within the meaning of Article 32 of
the VCLT, it is not difficult to ascertain that a bilateral or multilateral
non-WTO treaty can also qualify as the "circumstance of conclusion."
Thus, in EC - Poultry, the Appellate Body found that a bilateral
agreement between two WTO Members could serve as "supplementary
means" of interpretation for a provision of a covered agreement.

[T]he 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.7 5

A non-WTO treaty can be accounted for as part of the "circumstances of
conclusion" of a WTO agreement. The criteria for accounting for a non-WTO
treaty include whether the non-WTO treaty helps to discern the common
intentions of the WTO Members at the time of the conclusion, or whether
"relevance," as opposed to "direct influence" or "genuine link," can be found
between the non-WTO treaty and a WTO agreement.

The criteria are not very strict. However, in practice the application of
such a treaty interpretation method is still limited. Under this interpretation
method, treaty interpreters are expected to look at the circumstances
surrounding the conclusion of a WTO agreement. The non-WTO treaties
eligible for consideration would be limited to those existing at the time of the

74. Chicken Cuts Appellate Body Report, supra note 51, 289-90.
75. Poultry Appellate Body Report, supra note 32, 83.

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conclusion of the interpreted WTO agreement. If a non-WTO treaty develops
after the conclusion of a WTO agreement, it is not relevant to the conclusion of
the WTO agreement in question and thus would not be able to meet the
requirement of "circumstance of conclusion" of the WTO agreement.
Therefore, it is a rare situation where a non-WTO treaty exists prior to the
relevant WTO agreement and still helps to discern the common intentions of
the WTO Members.

VI. CONCLUSION

This Article argues for the importance of distinguishing treaty
interpretation from treaty application, for the basic reason that they have their
respective functions and are subject to different rules. Different methods are
available for treaty interpreters. Some of the treaty interpretation methods do
not enable interpreters to look at non-WTO treaties. For instance, there is little
room for WTO treaty interpreters to account for non-WTO treaties when
identifying the "object and purpose" of a WTO agreement. Also, it is a rare
situation where a non-WTO agreement can be practiced concordantly
subsequent to the WTO agreement indicating the meaning or intention of the
WTO agreement. Additionally, the non-WTO treaties eligible for consideration
as part of the circumstances of conclusion are very limited.

However, there are other methods that can serve as a basis for treaty
interpreters to account for non-WTO treaties. For instance, "frequent
references" made by "modem international conventions and declarations" help
decide the ordinary meaning of a WTO term. The extent of connections or
relationships between the non-WTO agreement or instrument and the
interpreted WTO agreement helps to decide the context of the WTO agreement.

2012]