Symposium : The Interpretation of Treaties - A Re-examination

• Van Damme, Isabelle

Abstract

This article analyses how the Appellate Body in practice expresses its interpretation of the WTO covered agreements, and discusses whether the Appellate Body's hermeneutics is different from that of other international courts and tribunals. It shows that it is impossible to discern the Appellate Body's hermeneutics from the practical exposition of how it interprets treaties. It also addresses the alleged particularity of the Appellate Body's hermeneutics. The key thread is the function of treaty interpretation in the development of the judicial function in the WTO. From the outset, the Appellate Body made the conscious choice to function as if it were a court. This exercise of the judicial function relates to the tasks and powers of the international judge and transcends the mere mandate and context of a particular court or tribunal as established in its constitutive document and other procedural rules. The Appellate Body's use of principles of interpretation has been instrumental in making acceptable its early choice to function as a court and to build its judicial identity. After 15 years of jurisprudence, the response of WTO members and the broader audience for the Appellate Body's decisions shows general acceptance of this initial, but perhaps not unavoidable, choice and the strategy to achieve this objective. In turn, this response has prompted less formalism in the Appellate Body's recent interpretations of the WTO treaties.