At the workshop, Freya Baetens will give a presentation titled High Jacking Anticipated, Prevented and Overcome: How to Safeguard the WTO Appellate System – and Beyond.
Abstract
In recent years, domestic authorities, be it legislative, executive or judicial bodies, have increasingly questioned the competence of international courts and tribunals to exercise jurisdiction over a certain dispute, thereby rejecting the validity and legitimacy of the resulting judgments. In a WTO context, this has culminated in a US veto on the appointment of the Members of the WTO Appellate Body, potentially putting in peril the entire system for holding WTO Members accountable for breaches of their obligations under WTO covered agreements.
This paper examines the US veto from the particular angle of each Member’s mandatory consent to the WTO’s adjudicatory system: could the US veto be regarded as a modification, or even withdrawal, of its consent? Could (or should) this have implications for the good faith fulfilment of the US’ obligations under the WTO agreements, or even its WTO membership? The paper looks at the historical development of the WTO Dispute Settlement Body and investigates whether such a situation was contemplated by the negotiating parties. The paper also scrutinizes the US’ specific proposals for reform (presented as conditions for continued consent), evaluating in particular the US demands for reform of the dispute settlement procedure (Article 15 of the Working Procedures).
Subsequently, the paper seeks to identify potential ways forward, to anticipate, prevent and overcome similar vetoes. Such approach could find its basis in an audacious interpretation of the current WTO laws, such as the direct appointment of Appellate Body Members by majority vote in the General Council, instead of consensus. Or, it may seek to borrow from other international adjudicatory systems, such as the option to modify consent to the jurisdiction of the International Court of Justice. Finally, an entirely new solution may be called for – such as the ‘back-up treaty’, advocated by Pieter-Jan Kuijper, which would provide for an appellate system for WTO Members minus the US and be activated once the WTO Appellate Body ceases functioning.
In its final part, this paper broadens its analysis beyond the context of the WTO so as to include other treaty regimes that envisage the establishment an appellate mechanism, such as the Comprehensive Economic and Trade Agreement between the EU and Canada, or any form of adjudicatory mechanism that requires State Party cooperation for the appointment of adjudicators. Have the drafters of these treaties anticipated this problem and devised a workable strategy to prevent such ‘high jacking’ of their dispute settlement system? Ultimately, the paper aims to identify and develop ‘best practices’ to safeguard the integrity of treaty dispute settlement mechanisms, not merely at the appellate but also at the first instance level; not only in the context of the WTO dispute settlement system but across international courts and tribunals more widely.
This paper forms part of the author’s research project, funded by the Research Council of Norway, “State consent to international jurisdiction: conferral, modification and termination” (project number 274946).