Qin: The Challenge of Interpreting 'WTO-Plus' Provisions

Julia Ya Qin (Wayne State Univ. - Law) has posted The Challenge of Interpreting 'WTO-Plus' Provisions. Here's the abstract:

This paper seeks to address special interpretive issues raised by the China Accession Protocol, focusing on provisions that prescribe more stringent obligations than generally applicable WTO disciplines. These so-called "WTO-plus" obligations have already been involved in several WTO disputes.

Interpretation of the Protocol presents a new challenge to the WTO adjudicatory body because it contains a large number of substantive obligations of China that exceed the requirements of the WTO agreements. Despite its unique content, the Protocol needs to be interpreted consistently and coherently with all WTO provisions since it has been made an integral part of the WTO Agreement. The Protocol, unfortunately, is not a model of clarity. Its text is not drafted as tightly as the WTO multilateral agreements, and it does not take care to specify the relationship between a WTO-plus provision and the generally applicable WTO disciplines. Moreover, the Protocol fails to articulate any rationale for the special obligations of China. As a result, it can be difficult to interpret the Protocol provisions by following a strictly applied textualist approach. Furthermore, the Protocol includes broad undertakings that go to the heart of China's economic and legal systems. These systemic obligations penetrate deeper into the domestic policy domain of a sovereign nation than any other WTO agreement. Consequently, how to interpret the scope of such provisions becomes a politically sensitive matter.

This paper illustrates the challenge of interpreting WTO-plus provisions in the light of the several WTO disputes, and suggests that, to meet the challenge, WTO adjudicators need to embrace a more holistic and systemic interpretive approach. It then proposes three working principles to aid the interpretive process: (1) Identifying the baseline. For each WTO-plus provision at issue, the treaty interpreter should endeavor to identify the corresponding provisions in the WTO multilateral agreements as the baseline rule. Locating the baseline can provide a broad context for the WTO-plus provision and shed light on its rationale. (2) Distinguishing commercial commitments from systemic or domestic policy commitments. Some of the WTO-plus obligations are commercial commitments in nature, whereas others pertain to the reform of China's domestic system. The level of WTO scrutiny should vary depending on the nature of the commitments so that proper balance can be drawn between international and national jurisdictions. (3) Giving due consideration to China’s intention. Although the Protocol has been made part of a multilateral agreement, its obligations are China-specific that do not have quid pro quo on the part of other WTO Members. In light of the de facto unilateral character of such obligations, special care should be taken in ascertaining China’s intention in the interpretive process; when in doubt, the Protocol obligations should be interpreted narrowly.