CWR > Volume 7(1); 2021 > Correspondence
Research Paper
Published online: March 1, 2021
DOI: http://dx.doi.org/10.14330/cwr.2021.7.1.08
Treaty Interpretation in the China Rare Earths Case: A Criticism of Textualism
Farheen Ahmad & Anmolam
South Asian University
817, Akbar Bhawan, Chanakyapuri, New Delhi-110021 India.
Corresponding Author: farheenahmad@gmail.com
ⓒ Copyright YIJUN Institute of International Law. This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.
Abstract
Today, as fragmentation of international law has become a reality, the Dispute Settlement Body of the WTO, being one the most essential adjudicatory bodies, has often been criticized for its overly-textualist approach to interpretation and use of the Vienna Convention on the Law of Treaties (VCLT). This commentary analyses the decision rendered by the Dispute Settlement Body in the China-Rare Earths Case. It explains how the textualist reading given by the Appellate Body could not look into the corresponding GATT regulation, while interpreting the Accession Protocol of China. It argues that this erroneous decision is a result of the DSB’s reliance on textualism through the use of Article 31 of the VCLT. It looks into the travaux préparatoires of Article 31 of the VCLT to argue that the concerns raised during the Vienna Conference are still relevant and get reflected even today in the decisionmaking in the China-Rare Earths case.
Keywords : WTO Dispute Settlement Body, China-Rare Earths, VCLT, Textualism, WTO
