Book contents
- Frontmatter
- Contents
- Foreword
- Disclaimer
- Acknowledgments
- Preface
- Editorial conventions
- Glossary of commonly used terms
- Table of GATT/WTO cases
- 1 Admissibility and jurisdiction
- 2 Attribution of conduct
- 3 Breach of an obligation
- 4 Conflicts between treaties
- 5 Countermeasures
- 6 Due process
- 7 Evidence before international tribunals
- 8 Good faith
- 9 Judicial economy
- 10 Municipal law
- 11 Non-retroactivity
- 12 Reasonableness
- 13 Sources of international law
- 14 Sovereignty
- 15 Treaty interpretation
- 16 Words and phrases considered
- Index
16 - Words and phrases considered
Published online by Cambridge University Press: 05 July 2015
- Frontmatter
- Contents
- Foreword
- Disclaimer
- Acknowledgments
- Preface
- Editorial conventions
- Glossary of commonly used terms
- Table of GATT/WTO cases
- 1 Admissibility and jurisdiction
- 2 Attribution of conduct
- 3 Breach of an obligation
- 4 Conflicts between treaties
- 5 Countermeasures
- 6 Due process
- 7 Evidence before international tribunals
- 8 Good faith
- 9 Judicial economy
- 10 Municipal law
- 11 Non-retroactivity
- 12 Reasonableness
- 13 Sources of international law
- 14 Sovereignty
- 15 Treaty interpretation
- 16 Words and phrases considered
- Index
Summary
Introduction
In his book, The Law of Treaties, Lord McNair included an appendix with the snappy title ‘Some words and phrases occurring in, or in connection with, Treaties, and considered by International and National Courts and Tribunals and in the Reports of the Law Officers’. While this appendix was rudimentary as compared with the various encyclopaedic digests of ‘words and phrases judicially considered’ that one encounters in the domestic context, at least one reviewer at the time considered McNair's mini-digest to be ‘extremely useful’. In that spirit, this chapter reviews WTO statements relating to a range of words and phrases under the following headings: (i) mandatory and discretionary terms; (ii) obligations of conduct; (iii) self-judging standards; (iv) normative standards; (v) timing language; and (vi) common English words. Pronouncements about the meaning of a term in one particular context cannot necessarily be transposed to a different context – there are numerous statements by WTO adjudicators to that effect. However, WTO jurisprudence is replete with general guidance on the ordinary meaning of many English words and phrases that are commonly found in treaties and other international legal instruments, and in many instances such guidance does not seem to be context-specific.
Mandatory and discretionary terms
Panels and the Appellate Body have considered the difference between mandatory and discretionary terms in a wide range of contexts, including the terms ‘shall’, ‘should’ and ‘may’, and the terms ‘guidelines’ and ‘principles’, as well as qualifying language such as ‘normally’, ‘as far as possible’ and ‘unless impracticable’.
16.2.1 ‘Shall’, ‘should’ and ‘may’
In Japan – Alcoholic Beverages II, the Panel examined a claim under Article III:2 of the GATT. The Panel compared and contrasted the ‘general principles’ of Article III:1 with the ‘legally binding obligation’ in Article III:2:
The words ‘recognize’ and ‘should’ in Article III:1, as well as the wording of Article III:2, second sentence, (‘the principles’), make it clear that Article III:1 does not contain a legally binding obligation but rather states general principles. In contrast, the use of the word ‘shall’ in Article III:2, both sentences, makes it clear that Article III:2 contains two legally binding obligations.
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- Publisher: Cambridge University PressPrint publication year: 2015