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In short, it is may be the case that, it is generally considered that the fundamental rules of treaty interpretation set out in Arts. 31 and 32 of the Vienna Convention have attained the status of rules of customary international law. In recent years, the jurisprudence of the Appellate Body and WTO panels has become one of the richest sources from which to receive guidance on their application.
IIIWTO Rules on Conflicts: Effective Interpretation
The Panel Report on Turkey-Textile and Clothing Products (DS34) states concerning the conflicts issue that: 5
“As a general principle, WTO obligations are cumulative and Members must comply with all of them at all times unless there is a formal ‘conflict’ between them. This flows from the fact that the WTO Agreement is a ‘Single Undertaking’. On the definition of conflict, it should be noted that: ‘… a conflict of law-making treaties arises only where simultaneous compliance with the obligations of different instruments is impossible. ... There is no conflict if the obligations of one instrument are stricter than, but not incompatible with, those of another, or if it is possible to comply with the obligations of one instrument by refraining from exercising a privilege or discretion accorded by another’.
This principle, also referred to by Japan in its third party submission, is in conformity with the public international law presumption against conflicts which was applied by the Appellate Body in Canada - Periodicals and in EC - Bananas III, when dealing with potential overlapping coverage of GATT 1994 and GATS, and by the panel in Indonesia - Autos, in respect of the provisions of Article III of GATT, the TRIMs Agreement and the SCM Agreement. In Guatemala - Cement, the Appellate Body when discussing the possibility of conflicts between the provisions of the Anti-dumping Agreement and the DSU, stated: ‘A special or additional provision should only be found to prevail over a provision of the DSU in a situation where adherence to the one provision will lead to a violation of the other provision, that is, in the case of a conflict between them’.
We recall the Panel''s finding in Indonesia - Autos, a dispute where Indonesia was arguing that the measures under examination were subsidies and therefore the SCM Agreement being lex specialis, was the only ‘applicable law’ (to the exclusion of other WTO provisions): ‘14.28 In considering Indonesia''s defence that there is a general conflict between the provisions of the SCM Agreement and those of Article III of GATT, and consequently that the SCM Agreement is the only applicable law, we recall first that in public international law there is a presumption against conflict. This presumption is especially relevant in the WTO context since all WTO agreements, including GATT 1994 which was modified by Understandings when judged necessary, were negotiated at the same time, by the same Members and in the same forum. In this context we recall the principle of effective interpretation pursuant to which all provisions of a treaty (and in the WTO system all agreements) must be given meaning, using the ordinary meaning of words.’
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