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Chapter V
Guidelines for Interpretation
of the WTO Covered Agreements


OUTLINE

I Introduction
II Application of Arts. 31, 32 of the Vienna Convention
III WTO Rules on Conflicts: Effective Interpretation
IV The Status of Legitimate Expectations in Interpretation



I Introduction
According to Art. 11 of the DSU, the panel's role is to “make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability and conformity with the relevant covered agreements”. In the previous chapter, we have examined the general standard of review labeled as “an objective assessment” regarding “the facts of the case”; clearly, for panels to fulfil appropriately their functions as designated in Art. 11 of the DSU, it is also indiscerptible to make such an objective assessment of “the applicability and conformity with the relevant covered agreements”. Therefore, the interpretation issue of the covered agreements arises. In this section, the author will scrutinize guidelines for interpretation applied under the WTO jurisprudence.
To resolve a particular dispute, before addressing the parties' arguments in detail, it is clearly necessary and appropriate to clarify the general issues concerning the interpretation of the relevant provisions and their application to the parties' claims. However, the complex nature of the covered agreements has given rise to difficulties in interpretation.
As noted previously, GATT/WTO jurisprudence should not be viewed in isolation from general principles developed in international law or most jurisdictions; and according to Art. 3.2 of the DSU, panels are bound by the “customary rules of interpretation of public international law” in their examination of the covered agreements. A number of recent adopted reports have repeatedly referred, as interpretative guidelines, to “customary rules of interpretation of public international law” as embodied in the text of the 1969 Vienna Convention on the Law of Treaties (‘Vienna Convention’), especially in its Arts. 31, 32. It is in accordance with these rules of treaty interpretation that panels or the Appellate Body have frequently examined the WTO provisions at issue, on the basis of the ordinary meaning of the terms of those provisions in their context, in the light of the object and purpose of the covered agreements and the WTO Agreement. These Vienna Convention articles provide as follows:

“Art. 31: General Rule of Interpretation
1. 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 and in the light of its object and purpose.
2. 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 was made between all the parties in connexion with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3. 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.
4. A special meaning shall be given to a term if it is established that the parties so intended.

Art. 32 Supplementary Means of Interpretation
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.”

II Application of Arts. 31, 32 of the Vienna Convention
Pursuant to Art. 31.1 of the Vienna Convention, the duty of a treaty interpreter is to determine the meaning of a term in accordance with the ordinary meaning to be given to the term in its context and in light of the object and purpose of the treaty. As noted by the Appellate Body in its Report on Japan-Alcoholic Beverages (DS8/DS10/DS11), “Article 31 of provides that the words of the treaty form the foundation for the interpretive process: ‘interpretation must be based above all upon the text of the treaty’. The provisions of the treaty are to be given their ordinary meaning in their context. The object and purpose of the treaty are also to be taken into account in determining the meaning of its provisions”. And in US ? Shrimps (DS58), the Appellate Body accordingly states: “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.”
More specifically, the Panel in US-Sections 301-310 (DS152) rules that: “Text, context and object-and-purpose correspond to well established textual, systemic and teleological methodologies of treaty interpretation, all of which typically come into play when interpreting complex provisions in multilateral treaties. For pragmatic reasons the normal usage, and we will follow this usage, is to start the interpretation from the ordinary meaning of the ‘raw’ text of the relevant treaty provisions and then seek to construe it in its context and in the light of the treaty's object and purpose. However, the elements referred to in Article 31 - text, context and object-and-purpose as well as good faith - are to be viewed as one holistic rule of interpretation rather than a sequence of separate tests to be applied in a hierarchical order. Context and object-and-purpose may often appear simply to confirm an interpretation seemingly derived from the ‘raw’ text. In reality it is always some context, even if unstated, that determines which meaning is to be taken as ‘ordinary’ and frequently it is impossible to give meaning, even ‘ordinary meaning’, without looking also at object-and-purpose. As noted by the Appellate Body: ‘Article 31 of the Vienna Convention provides that the words of the treaty form the foundation for the interpretive process: 'interpretation must be based above all upon the text of the treaty'’. It adds, however, that ‘[t]he provisions of the treaty are to be given their ordinary meaning in their context. The object and purpose of the treaty are also to be taken into account in determining the meaning of its provisions’.” 1
In sum, as noted by the Panel in Canada-Automotive Industry (DS139/DS142), “understanding of these rules of interpretation is that, even though the text of a term is the starting-point for any interpretation, the meaning of a term cannot be found exclusively in that text; in seeking the meaning of a term, we also have to take account of its context and to consider the text of the term in light of the object and purpose of the treaty. Article 31 of the Vienna Convention explicitly refers to the ‘ordinary meaning to be given to the terms of the treaty in their [the terms'] context and in the light of its [the treaty's] object and purpose’. The three elements referred to in Article 31 - text, context and object and purpose - are to be viewed as one integrated rule of interpretation rather than a sequence of separate tests to be applied in a hierarchical order. Of course, context and object and purpose may simply confirm the textual meaning of a term. In many cases, however, it is impossible to give meaning, even ‘ordinary meaning’, without looking also at the context and/or object and purpose”. 2
With regard to Art. 32 of the Vienna Convention, it is repeatedly ruled that, “[t]he application of these rules in Article 31 of the Vienna Convention will usually allow a treaty interpreter to establish the meaning of a term. However, if after applying Article 31 the meaning of the term remains ambiguous or obscure, or leads to a result which is manifestly absurd or unreasonable, Article 32 allows a treaty interpreter to have recourse to ‘... supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion’. With regard to 'the circumstances of [the] conclusion' of a treaty, this permits, in appropriate cases, the examination of the historical background against which the treaty was negotiated.” 3
As a whole, under the WTO jurisprudence, with regard to the dispute among the parties over the appropriate legal analysis to be applied, as general principles or guidelines of interpretation, it is often begun with Art. 3.2 of the DSU. To go further, as noted by the Panel in Japan-Alcoholic Beverages, “the ‘customary rules of interpretation of public international law’ are those incorporated in the Vienna Convention on the Law of Treaties (VCLT). GATT panels have previously interpreted the GATT in accordance with the VCLT. The Panel noted that Article 3:2 DSU in fact codifies this previously-established practice”. Consequently, “the Panel concluded that the starting point of an interpretation of an international treaty, such as the General Agreement on Tariffs and Trade 1994, in accordance with Article 31 VCLT, is the wording of the treaty. The wording should be interpreted in its context and in the light of the object and the purpose of the treaty as a whole and subsequent practice and agreements should be taken into account. Recourse to supplementary means of interpretation should be made exceptionally only under the conditions specified in Article 32 VCLT”. 4
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.
III WTO 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.’
In light of this general principle, we will consider whether Article XXIV authorizes measures which Articles XI and XIII of GATT and Article 2.4 of the ATC otherwise prohibit. In view of the presumption against conflicts, as recognized by panels and the Appellate Body, we bear in mind that to the extent possible, any interpretation of these provisions that would lead to a conflict between them should be avoided.”
It is clearly implied by the ruling above that, in the WTO system, any interpretation of the covered agreements that would lead to a conflict between them should be avoided. In this respect, as to WTO rules of conflicts, in the context that all WTO agreements were negotiated “at the same time, by the same Members and in the same forum”, the principle of effective interpretation is recalled. What a principle is it?
As ruled by the Panel in Japan-Alcoholic Beverage (DS8/DS10/DS11), effective interpretation is a principle “whereby all provisions of a treaty must be, to the extent possible, given their full meaning so that parties to such a treaty can enforce their rights and obligations effectively…. this principle of interpretation prevents [the panel] from reaching a conclusion on the claims … or the defense …, or on the related provisions invoked by the parties, that would lead to a denial of either party's rights or obligations.” 6 This ruling is upheld by the Appellate Body when ruling that, “[a] fundamental tenet of treaty interpretation flowing from the general rule of interpretation set out in Article 31 is the principle of effectiveness (ut res magis valeat quam pereat). In United States - Standards for Reformulated and Conventional Gasoline, we noted that ‘[o]ne of the corollaries of the ‘general rule of interpretation’ in the Vienna Convention is that interpretation must give meaning and effect to all the terms of the treaty. An interpreter is not free to adopt a reading that would result in reducing whole clauses or paragraphs of a treaty to redundancy or inutility’.” 7
民航局


空中交通管制员、航行调度员、航空公司签派员执照管理办法（暂行）

1986年4月14日，民航局

为了贯彻执行民航局《颁发空中交通管制员、航行调度员执照规则》（暂行）和《颁发航空公司航行签派员执照规则》（暂行），必须建立颁发执照的组织机构和工作制度，明确职责和工作程序，以保证颁发执照工作的顺利进行。为此，制定本办法。
一、组织管理机构及其职责
空中交通管制员、航行调度员、航空公司航行签派员执照管理工作，由民航局航行司和地区管理局航行处、飞行专科学校飞行训练处以及民航局授权的其他单位分工负责，具体承办执照的申请、考核、审批、颁发等项工作。颁发执照是一项经常性的工作，各单位要指定一名业务领导干部负责此项工作。民航局航行部门和各授权单位的航行部门应设检查人员，在专职检查人员未配齐前，可聘任兼职检查人员。
二、执照的申请、考核和审批
1．申请：由申请者本人向所在单位提出申请，并填写《空中交通管制员、航行调度员执照申请书》、《航行签派员执照申请书》。
2．考核：由民航局授权的地区管理局、学校航行部门负责组织，由民航局聘任的技术检查员进行理论考试和技术考核。申请人理论考试不及格者不得进行技术考核。如技术考核不合格者，所在部门要指定专人（有本岗位执照）负责带训，带训期限最长不超过半年，质量合乎要求后，重新进行技术考核。如重新进行技术考核仍不合格者，则取消其本年度本岗位执照的申请资格。
3．审批：经理论考试和技术考核合格者，由该考核单位填写《空中交通管制员颁发执照审查报告表》、《航行调度员颁发执照审查报告表》、《航行签派员颁发执照审查报告表》，由该考核单位负责人和检查员签署意见后报民航局审批，并颁发执照。
三、理论考试和技术考核办法
理论考试与技术考核，由民航局检查人员会同或委托地区管理局、学校专职（兼职）检查员负责实施。各项考核按岗位分工，全面复习，抽题考试的办法进行。
四、兼职检查员的聘任
兼职检查员由地区管理局航行处推荐，民航局择优聘任。兼职检查员聘任期为四年。在聘期内，一切关系仍隶属于原单位，但在安排他们的工作时，首先必须保证他们能按民航局的计划安排执行各项考核任务，并有一定的时间参加岗位值班。
五、技术检查人员应具备的条件
1．责任心强，作风正派，办事公道，不徇私情。
2．熟悉各项规章制度，并能模范地遵守，工作作风严谨，对被检查者能严格要求。
3．理论基础较好，能胜任理论考试工作。
4．具有较丰富的实际工作经验，值班工作规范化，能胜任本岗位各种条件下的检查工作。
六、检查人员的职责
1．在民航局的统一组织下，按职责分别执行空中交通管制员、航行调度员、航行签派员颁发执照的考核工作（包括年终例行考试）。
2．按照规定的内容认真进行考核，严格掌握标准。细致考察被检查者的业务技术状况，并做出实事求是的结论。
3．执行检查任务中，如系在实际岗位实施时，要履行本岗位的职责。
4．技术考核后，要对被检查者进行讲评，并作出实事求是的结论。
七、对接受检查者的要求
1．凡申请人或持照人，不论职位高低，资历深浅，必须服从检查员的检查，尊重检查人员。
2．严格遵守考试纪律。
八、检查员的待遇
检查人员在应聘期间，每人每月补贴7元，从应聘的下月起随工资一起发放，解聘者也从解聘的下月开始停止发放。其费用从该项收入中支出，列入机场管理费中的航行业务费。
九、执照管理费
凡申请办理空中交通管制员、航行调度员、航行签派员执照及办理定期考核者，必须按规定交纳执照管理费。
（一）收费标准：
凡初次申请办理执照或更换、补发执照者，每人交纳执照管理费15元，一次考试不及格，在一年内复试者交10元，对持照人进行一年一度的例行考核，每人每年交纳执照管理费10元，交款人凭财务部门的收据回原单位报销。民航局所属各机场人员报销时，列入机场管理费一航行业务费支出。
（二）执照管理费管理办法：
1．申请人申请办理执照或申请考核时，应先交纳执照管理费，然后进行考试或考核。
2．执照管理费分民航局财务司和管理局、学校财务处两级管理。
管理局、学样财务处，根据航行部门的通知，对申请执照人收款后，将其50％的款项和交款人员名单一并上报民航局财务司，同时抄送航行司。余下的50％留给管理局、学校财务处，冲减航行业务费支出。管理局、学校航行部门支付印刷有关报表、档案、试卷、资料及检查人员费用，由管理局、学校财务处直接在机场管理费的航行业务费中列支。
检查人员由其所在单位到管理局、省（区、市）局、学校、公司、航站执行执照考核任务，其往返旅差费和住宿费，由申请执照人员所在单位负责报销。