The Role of Non-WTO Law in the WTO Dispute Settlement

Abstract: Due to the proliferation and specialisation of international regulations and organisations, public international law has become more fragmented. International environmental law, human rights law, labour law and trade law have all developed in different fora. This fragmentation of international law can lead to conflicts between norms. Since many multilateral environmental agreements (MEAs) use trade restrictions as a means to protect the environment, there is a particularly large risk for conflicts in the area of trade and environment. Furthermore, one of the criticisms against the World Trade Organisation (WTO) is that detrimental environmental effects of trade liberalisation are not sufficiently taken into account. This has lead to a discussion about the role of the WTO in public international law and about the notion of the WTO as a 'self-contained regime'. The question arises, how environmental concerns can be better accomodated within the framework of the WTO in order to liberalise world trade without compromising the environment. Therefore, this thesis poses the question to what extent the adjudicating bodies of the WTO should apply non-WTO law in case it conflicts with WTO law. It sheds light on the relationship between norms in public international law in general and between the WTO agreements and MEAs in particular. A comparison between certain provisions in the SPS Agreement Agreement on the Application of Sanitary and Phytosanitary Measures, 15 April 1994, 1867 U.N.T.S. 493. under the WTO and the Biosafety Protocol to the Convention on Biological Diversity Cartagena Protocol on Biosafety to the Convention on Biological Diversity, 29 January 2000, 2226 U.N.T.S. 557. illustrates what kind of conflicts can emerge between a WTO agreement and an MEA, in the context of international trade in GMOs (genetically modified organisms). Based on the principle of pacta sunt servanda and the principle of good faith, this thesis argues that the WTO panels and the Appellate Body should apply non-WTO law to which both parties to the dispute are bound, when settling a dispute under one of the WTO covered agreements. They should do so even when the non-WTO rule is invoked as a defence against a violation of WTO law, and may conflict with the WTO rule. In order to make sure that the intentions of the states parties are not circumvented, it is further argued that conflict between norms should be defined narrowly, so as to only encompass situations in which a state cannot simultaneously comply with its obligations under both norms.