On The Application Of Principle Of Effectiveness In WTO Dispute Settlement

As the fundamental principle of treaty interpretation, principle of effectiveness hasn’t been codified in the Vienna Convention on the Law of Treaties(hereinafter as Vienna Convention). While as the principle flows from the general rule of treaty interpretation in article 31 of the Vienna Convention, principle of effectiveness has been applied by the Appellate Body and the Panel in treaty interpretation frequently. However, the application of principle of effectiveness in WTO dispute settlement may raise several problems as below: firstly, depart from the “text-based” general rule of treaty interpretation, the outcome of treaty interpretation by the application of principle of effectiveness may exceed the possible meaning of the treaty language; Secondly, there exists a highly controversial in the definition of “conflict” in WTO dispute settlement. The interpreters has not yet clarified the distinction between “genuine conflict” and “apparent conflict”, therefore they may improperly apply principle of effectiveness in the event of genuine conflict between two WTO rules; thirdly, in the interpretation of the silence in WTO treaty language, the interpreters sometimes seem to solely rely on the requirement of principle of effectiveness in that “interpretation must give meaning and effect to all the terms of a treaty” to identify that a terms of a treaty is silent in one matter means that the matter is not applied in the terms, which forms an improper interpretation logic of “silence equates to waiver”. Given this, this paper focuses on the systemic research of principle of effectiveness, actively discuss how could China better apply principle of effectiveness in WTO dispute settlement in the future.Apart from the introduction and conclusion, the structure of this paper is planed as below:The first chapter gives an introduction of principle of effectiveness. It begins with discussing the origin and connotation of principle of effectiveness in WTO dispute settlement, and then it identifies its relationship with ordinary meaning interpretation, contextual interpretation and teleological interpretation.The second chapter focuses on the application of principle of effectiveness in WTO dispute settlement. It carries out empirical research in two aspects: on the one hand, analysis the application of principle of effectiveness in a single agreement in the WTO agreement; on the other hand, analysis the application of principle of effectiveness in different agreement in the WTO agreement.The third chapter based on the above analysis puts forward the problems existing in the application of principle of effectiveness in WTO dispute settlement. Firstly, the outcome flows from the application of principle of effectiveness may exceed the possible meaning of the treaty language; secondly, the interpreters may improperly apply the principle of effectiveness in reconciling the genuine conflict; thirdly, the interpreters apply the principle of effectiveness to form an improper interpretation logic of “silence equates to waiver”.The forth chapter based on the above problems provides solutions to the proper application of principle of effectiveness. Firstly, verify the outcome flows from the application of principle of effectiveness by the general rule of treaty interpretation as to whether exceed the possible meaning of a treaty language; secondly, verify the differences between genuine conflict and apparent conflict. In the event of genuine conflict, the principle of effectiveness shouldn’t be applied to reconcile conflict; thirdly, apply principle of effectiveness in contextual interpretation and teleological interpretation, and employ a holistic approach to put principle of effectiveness and the general rule of treaty interpretation as mutually complementary and reinforcing set of rules to clarify the meaning of silence in a treaty language.The fifth chapter provides a critical review of the Appellate Body and the Panel’s interpretation of the absence in paragraph 11.3 of China’s Accession Protocol in China- Raw Materials and China – Rare Earths. In addition to that, it applies principle of effectiveness in the contextual and teleological interpretation of paragraph 11.3 and reinterpretation of this paragraph by application of principle of effectiveness.