2.1 Case for Allowing GC Intervention by Majority Vote

The current crisis facing the AB stems from the US's continued obstruction of the appointment of AB members. This has led to a halt of operation of the AB since December 2019 due to the lack of the requisite quorum of three members to hear appeals.Footnote ¹⁷ And the term of the last sitting member expired in November 2020, signaling the de facto demise of the AB. Under Article 16.4 of the Dispute Settlement Understanding, winning appellants at the panel stage are unable to benefit from their victory while an appeal is pending.Footnote ¹⁸ As a result, any defendant can appeal a panel ruling ‘into the void’, and currently 31 cases are pending.Footnote ¹⁹

The United States alleges that the AB had strayed from agreed-upon rules, criticizing both its overreach of mandate and its substantive jurisprudence.Footnote ²⁰ Many others hold differing perspectives and efforts to salvage the situation have been made – for example, during the GC meeting in December 2018, the EU, China and other States proposed amendments to certain provisions of the DSU.Footnote ²¹ However, the United States showed no interest and the proposals were not adopted.Footnote ²² In January 2019, the GC appointed Ambassador David Walker as the facilitator of the Informal Process on Matters Related to the Functioning of the Appellate Body. On the final day before the AB ceased functioning, Walker presented a draft GC Decision for adoption, which also was rejected by the US.Footnote ²³

Following the AB's suspension of operations, a subset of WTO members established the Multi-Party Interim Appeal Arrangement (MPIA) in April 2020 as a stopgap solution. While this solution offers some relief and appears to align with Article 25 of the DSU, its limitations are also evident. The number of WTO members that have agreed to join the MPIA are still limited.Footnote ²⁴ Although arbitration awards under the MPIA can be subject to the surveillance of the DSB under Article 25.4 of the DSU, the enforceability of unadopted panel reports or arbitration appeals remains unclear.Footnote ²⁵ And Gao also underscored that this arrangement denies WTO members their rights to appeal.Footnote ²⁶

Despite past negotiation failures and the establishment of the MPIA, an informal negotiation process on dispute settlement reform, with the support of the US, began in 2023, following the MC12' call for ‘a fully and well-functioning dispute settlement system accessible to all Members by 2024’.Footnote ²⁷ This process was formalized after MC13 reaffirmed this commitment in early 2024.Footnote ²⁸ While progress has been made on many fronts, negotiations on appeal/review issues remain challenging. As Joel Richards, one of the co-convenors on these issues, acknowledged recently, ‘members remain far apart on the sub-topics of access to the appeal/review mechanism, form of mechanism, and standard of review’.Footnote ²⁹ To complicate matters further, the Biden administration, which at least showed a willingness to engage in negotiations, will soon be replaced by the Trump administration, which ‘plunged the WTO dispute settlement system into [this] existential crisis’.Footnote ³⁰

Given the significant uncertainty surrounding the negotiation process, it is essential to explore an alternative solution to the crisis confronting the AB, namely, the appointment of AB members by either the MC or the GC through majority vote, at least as a backup plan. In fact, to date, the proposal to launch the selection processes for filling AB vacancies has been raised at each meeting of the DSB since November 2017. Initially supported by 23 members, its support grew steadily as the crisis worsened.Footnote ³¹ By September 2023, 130 members – more than three-fourth of the entire membership – had endorsed the proposal,Footnote ³² which persisted through November 2024, according to the latest meeting records available.Footnote ³³ This demonstrates the strong momentum for the early reactivation of the AB.

The basic idea of the solution is that the current impasse in the selection process within the DSB makes it plausible for the MC, as the highest authority of the WTO, to intervene and resolve the crisis.Footnote ³⁴ Similarly, the GC, acting as the interim authority between MC meetings, could also step in to tackle the crisis.Footnote ³⁵ Given WTO members’ objective of restoring the functionality of the dispute settlement system at an early time, the intervention of the GC appears to be a more feasible option. Moreover, the GC is well-suited for this role, having previously been involved in dispute settlement mattersFootnote ³⁶ and already engaged in efforts to salvage the AB.Footnote ³⁷ Even if members opt against this solution for practical reasons which will be addressed in Section 4, the mere existence of such an option could prompt the negotiations, especially by pressuring the holdout members to agree to concessions.Footnote ³⁸

However, the absence of substantial discussions on this option suggests that, among others, WTO members may have concern about its legality. The main concern revolves around whether, in appointing AB members, the GC is exempt from the requirement of consensus. While Article IX:1 of the AEWTO provides that ‘[d]ecisions of the Ministerial Conference and the General Council shall be taken by a majority of the vote cast’, it has the caveat that this applies ‘unless otherwise provided in this Agreement or in the relevant Multilateral Trade Agreement’. Meanwhile, Article IV provides that decisions of the MC need to be made ‘in accordance with the specific requirements for decision making in this Agreement and in the relevant Multilateral Trade Agreement’. Footnote 3 of the AEWTO further provides that ‘[d]ecisions by the General Council when convened as the Dispute Settlement Body shall be taken only in accordance with the provisions of paragraph 4 of Article 2 of the Dispute Settlement Understanding’, i.e., consensus.

2.2 Legal Controversies on GC Intervention by Majority Vote

A closer examination of existing scholarly discussions will shed light on why some scholars believe this solution is viable, as well as the challenges associated with it. Before the AB ceased functioning, Kuijper foresaw that making concession to the US might not salvage the AB and advocated for precautionary measures.Footnote ³⁹ He mentioned that ‘[t]imes of emergency justify emergency measures, also in the law of international organizations. They allow states to invoke the clausula rebus sic stantibus in treaty law. They allow states and organs of international organizations to take decisions that are arguably legal, but that they would not take under normal circumstances’.Footnote ⁴⁰ But he did not further explain the implications of the law of international organizations, as he believed that ‘[t]he WTO itself offers the opportunity of a simple solution [which] is the recourse to majority voting’.Footnote ⁴¹

Kuijper contended that the GC is permitted to ‘escape from consensus’ in appointing AB members based on Article XVI:3 of the AEWTO. He emphasized that Article XVI:3, the conflict-of-laws rule, mandates that the provisions the AEWTO take precedence over those of the Multilateral Trade Agreements in case of a conflict.Footnote ⁴² According to Kuijper, ‘[p]roviding for an additional method of decision-making in the WTO [under Article IX:1 of the AEWTO], which is not available in the DSU, would constitute such a conflict’.Footnote ⁴³

Hillman and Petersmann also supported the legality of GC's appointing of AB members by majority vote. In addition to endorsing an argument based on Article XVI:3,Footnote ⁴⁴ Hillman suggested that such action ‘would be an appointment rather than a decision under Article 2’ of the DSU and would fulfill members’ obligation to fill AB vacancies as outlined in Article 17.2.Footnote ⁴⁵ Petersmann further delineated the US's obstruction of AB member appointments as a breach of the obligation to act in good faith and its obligation under Article 17.2,Footnote ⁴⁶ and posited that a majority vote in the GC or the MC ‘is justified by the illegality of the US disregard for the collective WTO duties to maintain the AB’.Footnote ⁴⁷ He also highlighted the illegality of the DSB's de facto amendment of the DSU and emphasized the legal responsibilities of WTO members to comply with WTO amendment procedures and Article 17 of the DSU.Footnote ⁴⁸

Seemingly aware of the controversies surrounding these interpretations, Hillman and Petersmann suggested an authoritative interpretation to be made by the MC or the GC under Article IX:2 of the ATWTO. Hillman proposed an interpretation affirming the existence of a collective duty of members under Article 17.2 to fill AB vacancies,Footnote ⁴⁹ and, in addition to this, Petersmann suggested that ‘in view of Article XVI.3 WTO Agreement’ could be added to confirm existing WTO powers to act through majority decisions.Footnote ⁵⁰ Vidigal also recommended an interpretation by the MC or the GC as the ‘politically most feasible in the short term’.Footnote ⁵¹ However, he first highlighted the problems with the legality of the intervention by the GC through majority vote.

Vidigal contended that, based on the qualifications within Articles IV:1 and IX:1 of the AEWTO, the specific decision-making requirements governing the DSB extend to the GC's appointment of an AB member and prevail over the latter's general decision-making rule.Footnote ⁵² He argued that Article XVI:3 is irrelevant in this context, as this is not a situation of conflict between decision-making rules but rather falls under lex specialis.Footnote ⁵³ He clarified that AEWTO footnote 3's reference to the GC confirms this obligation without affecting the MC's obligation under Article IV:1.Footnote ⁵⁴

Vidigal also challenged the notion that restriction on the MC only applies to ‘decisions’ which exclude the action of ‘appointing’, as ‘the DSU does not provide a decision-making process for DSB actions other than decisions’.Footnote ⁵⁵ Moreover, he highlighted the untenability of arguing that the consensus requirement applicable to all decisions of the DSB per Article 2 of the DSU is not covered by ‘specific requirements for decision-making … in the relevant Multilateral Trade Agreement’ in Article IV:1.Footnote ⁵⁶ On this point, he suggested an authoritative interpretation to be made by the MC or the GC could make a difference.Footnote ⁵⁷

Beyond textual analysis, Vidigal examined the element of object and purpose, suggesting that ‘it is not far-fetched to conclude that the object and purpose of the consensus requirement is to ensure that not one person is appointed to the Appellate Body who would be unacceptable to a WTO Member’,Footnote ⁵⁸ thereby disputing the claims of the US's ‘abus de droit’. He also drew parallels with the Peace Treaties (Second Phase) advisory opinion of the International Court of Justice (ICJ) to underscore that even if the US violated its procedural obligations under the DSU, this does not permit ‘other Members, or WTO institutions, to compose the adjudicator against the institutional rules Members agreed to’.Footnote ⁵⁹ Furthermore, Vidigal scrutinized the negotiating history, revealing that this problem may not have been noticed by WTO members at that time.Footnote ⁶⁰

In response, Gao staunchly defended the legality of appointing AB members by majority vote in the GC. He argued that the consensus rule applies solely when the GC functions as the DSB. Moving the appointment of AB members to the GC would not warrant the application of the consensus rule, as doing so would stretch Article 2.4 of the DSUFootnote ⁶¹ and contradict the explicit treaty language of Article IV:3 of the AEWTO stating that the GC only acts as the DSB when it convenes as such.Footnote ⁶² Gao further contended that confining the decision-making process to the special rule under the DSU would render the stipulation in Article IV:1, ‘in accordance with the specific requirements for decision-making in this Agreement’, meaningless.Footnote ⁶³ This presents a potential conflict and justifies the application of Article XVI:3 of the AEWTO.Footnote ⁶⁴

Gao underscored the object and purpose of the DSU set out in Article 3.2, emphasizing that the dispute settlement system is ‘a central element in providing security and predictability to the multilateral trading system’ and the prompt settlement of disputes is ‘essential to the effective functioning of the WTO and the maintenance of a proper balance between the rights and obligations of Members’.Footnote ⁶⁵ He condemned the US's action as an abuse of power, representing an attempt to ‘force a major amendment to the DSU on all other WTO Members’.Footnote ⁶⁶ Gao asserted that members are ‘responsible for this termination of the Appellate Body’ if they ‘refuse to invoke the majority voting process’.Footnote ⁶⁷

However, Gao's call appears to have been met with skepticism, at least not convincing enough to sway WTO members into believing it as a credible interpretation. In fact, similar arguments by Gao, Vidigal, and other scholars had circulated earlier in the International Economic Law and Policy Blog, yet both camps remain at odds, unable to reach a consensus.Footnote ⁶⁸ And an anonymous commentator noted that ‘people who are well-versed in principles of treaty interpretation and the interpretive style of the WTO can reach opposite conclusions on whether majority voting for ABMs is or is not permitted’.Footnote ⁶⁹

3.1 Institutional Interpretative Rules as the ‘Customary Rules of Interpretation of Public International Law’

As demonstrated earlier, the question of whether the GC can appoint AB members by majority vote primarily involves the interpretation of Articles IV, IX, XVI, and footnote 3 of the AEWTO. The interpretative rules applied by the learned scholars in Section 2 are obviously those outlined in Articles 31 and 32 of the VCLT. While some scholars find a clear answer through textual analysis alone, others also scrutinize the element of object and purpose. Vidigal, contending that these elements are not enough to determine whether the consensus requirement in appointing AB members acts as a loophole or a fire alarm, further examined the negotiating history of the AEWTO, permissible under Article 32 of the VCLT. These interpretative rules do not seem to be disputed by participants in the debate, as they are commonly applied by the AB and considered to represent ‘customary rules of interpretation of public international law’ as outlined in Article 3.2 of the DSU.Footnote ⁷⁰

However, these conventional rules of treaty interpretation may not entirely suffice for the current issue. The question of whether the GC can appoint AB members by majority vote is an institutional issue and concerns the interpretation of provisions of a constituent instrument rather than a trade dispute typically brought before panels and the AB. In such a context, ‘customary rules of interpretation of public international law’ require the application of a slightly modified set of interpretative rules, which we may term ‘institutional interpretative rules’ for the purpose of this article.

The existence of such institutional interpretative rules with regard to constituent instruments in public international law is clearly elucidated by the ICJ in its advisory opinion on the Legality of the Use of Nuclear Weapons. While ‘the constituent instruments of international organizations are multilateral treaties, to which the well-established rules of treaty interpretation apply’,Footnote ⁷¹ the Court stated that

It is clear from this quoted statement of the Court that, in addition to the elements that have already been examined, elements such as ‘the very nature of the organization created, the objectives which have been assigned to it by its founders, the imperatives associated with the effective performance of its functions, as well as its own practice’ also require careful scrutiny to determine whether the GC can intervene by majority vote. And these elements often facilitate a more dynamic interpretation.Footnote ⁷³

Before examining these elements, however, it is necessary to ascertain whether such institutional interpretative rules have been excluded from applying to the AEWTO or its rules of decision-making. While the application of such rules aligns with customary rules of interpretation of public international law and is not expressly prohibited by the AEWTO, there is a possibility that these rules could be implicitly set aside based on pertinent provisions of the AEWTO. Article 5 of the VCLT allows special rules of an international organization to prevail.Footnote ⁷⁴ Even if one regards these institutional interpretative rules as outside the VCLT frameworkFootnote ⁷⁵ and as general rules of international law, their application still allows for exceptions, provided States so intend.

The WTO, as its name suggests, is an international organization, evidenced also by its composition of various organizations,Footnote ⁷⁶ legal personality established, and privileges and immunities accorded by member States,Footnote ⁷⁷ and competence to conclude a headquarters agreement.Footnote ⁷⁸ However, it differs from many other international organizations. Notably, it predominantly comprises plenary organs composed of all members. While it does operate a secretariat of over 600 employees, its scale remains relatively modest compared to organizations such as the UN, World Bank, or IMF.Footnote ⁷⁹ Moreover, it prides itself on being a ‘member-driven’ organization and a platform for negotiation among members.Footnote ⁸⁰ As such, it has been aptly characterized by Kuijper as an ‘IO lite’.Footnote ⁸¹

It could be contended that the WTO lacks significant autonomy in substance, thus rendering institutional interpretative rules inapplicable. This argument, however, is not entirely convincing. It is not clear whether low autonomy necessarily precludes the application of institutional interpretative rules. The breadth of the definition of international organization suggests that the WTO may already possess higher autonomy compared to many other international organizations.Footnote ⁸² Even if one were to regard the WTO more as a conference of States than a typical international organization, the institutional interpretive rules may still be applicable. Robin Churchill and Geir Ulfstein have suggested that these interpretative rules should extend to conferences of States to justify ‘outcomes that would not be accepted under the law of treaties’.Footnote ⁸³

Moreover, the GATT's numerous institutional innovations ‘put in place without explicit treaty text authority’,Footnote ⁸⁴ challenge the notion that formalizing the WTO as an international organization has stripped the regime of its institutional flexibility, confining it to a more textual interpretation. The WTO's own practices, such as postponing the MC for two years due to the pandemic, despite the explicit requirement to hold ‘at least every two years’,Footnote ⁸⁵ further substantiate the applicability of institutional interpretative rules. Dismissing the relevance of these rules to the WTO's institutional framework, as noted by John Jackson, could inhibit the WTO ‘from being able to adapt to changing conditions in the world’.Footnote ⁸⁶

It could also be argued that institutional interpretative rules should not apply to decision-making rules of the AEWTO, as members appear to attach special importance to these rules. Article X:2 explicitly states that amendments to Article IX of the AEWTO ‘shall take effect only upon the acceptance by all Members’, while amendment to many other rules have a lower threshold.Footnote ⁸⁷ However, in reality, the decision-rules have been de facto altered by WTO members with the practice of voting almost abandoned.Footnote ⁸⁸ This confirms the adaptability of the decision-making provisions, although Article IX's favorable stance towards consensus, the longtime practice and consensus of members in deciding by consensus indicates that a very high threshold is required for any change with these rules.

While neither of these two arguments negates the application of institutional interpretative rules, they raise important concerns to be addressed in the process of treaty interpretation. The relatively conservative character of the institutional structure of the WTO evidently needs to be considered in the element of the ‘nature of the organization’, indicating that while an innovative interpretation of the AEWTO is possible, it should only be done in a very cautious manner. And considering the special importance attached to the decision-making rule by members and the established practice of consensus, it is prudent to focus our examination on whether the GC's intervention by majority vote is justifiable as an exception to address the AB crisis, rather than questioning whether the GC can intervene in the DSB's operation by vote as a norm. These differing targets carry distinct burdens of proof, especially when considering the element of ‘the imperatives associated with the effective performance of its functions’ to be discussed below.Footnote ⁸⁹

3.2 Examination of Additional Interpretive Elements

Given the applicability of institutional interpretative rules and the ambiguity in the treaty text, this subsection will explore the application of additional interpretative elements. These include ‘the very nature of the organization created’, ‘the objectives which have been assigned to it by its founders’, ‘the imperatives associated with the effective performance of its functions’, as well as ‘its own practice’. Apparently not all of these elements provide clear guidance for interpretation; some even add complexity rather than clarity to the issue. As just noted, the very nature and practices of the WTO suggested both flexibility and caution. The objectives set by the founders, as noted in Section 2, remain contentious. Therefore, arguing for GC intervention by majority vote based on these elements lacks convincing grounds.

One element, ‘the imperatives associated with the effective performance of its functions’, however, appears particularly relevant here as the core issue at hand is the inability of the AB to function properly. According to Article III:3 of the AEWTO, one of the WTO's main functions is to ‘administer the Understanding on Rules and Procedures Governing the Settlement of Disputes’. Additionally, Article 3.3 of the DSU emphasizes that ‘[t]he prompt settlement of situations in which a Member considers that any benefits accruing to it directly or indirectly under the covered agreements are being impaired by measures taken by another Member is essential to the effective functioning of the WTO’.Footnote ⁹⁰

The application of this interpretative element should be distinguished from the second sentence of Article IV:1 of the AEWTO, which states that ‘[t]he Ministerial Conference shall carry out the functions of the WTO and take actions necessary to this effect’. While the latter can be constrained by the third sentence of Article IV:1, which mandates the application of ‘specific requirements for decision-making in this Agreement and in the relevant Multilateral Trade Agreement’,Footnote ⁹¹ the element of ‘the imperatives associated with the effective performance of its functions’, deriving its legal force from general international law, applies to the interpretation of the entire AEWTO, encompassing both the second and third sentences of Article IV:1.

The question is whether the intervention of the GC by majority vote can be considered ‘imperative’ in this situation. As discussed in Section 2.1, there are other methods for resolving the current impasse. While a vote in the GC could indeed assist in this regard, it is not the only means available to members.

A brief review of relevant cases of the ICJ can shed light on what constitutes an ‘imperative’. In the Reparation of Injuries advisory opinion, a question arose about whether the United Nations can bring an international claim to obtain reparation from a State in respect of the damage caused to an agent in the service of the organization.Footnote ⁹² This right was not mentioned by the actual terms of the UN Charter, and there were alternative means for compensating the agent, such as the remedies afforded by local law, diplomatic protection by its national State, and the possibility of the conclusion of a general convention in this regard.Footnote ⁹³ Nevertheless, the Court deemed that ‘[t]o ensure the independence of the agent, and, consequently, the independent action of the Organization itself, it is essential that in performing his duties he need not have to rely on any other protection than that of the Organization’.Footnote ⁹⁴

A year later, and right before delivering its Peace Treaties (Second Phase) advisory opinionFootnote ⁹⁵ cited by Vidigal above, the Court issued its advisory opinion on South-West Africa.Footnote ⁹⁶ Compared to the Peace Treaties (Second Phase), which centered on the compromissory provisions of the Peace Treaties signed by Bulgaria, Hungary, and Romania with the Allied and Associated Powers – where the Court noted that the UN Secretary-General is not authorized to appoint the third member of the Treaty Commission even if one party fails to appoint a representativeFootnote ⁹⁷ – South-West Africa presents a more relevant precedent. It pertains to the interpretation of a constituent instrument, the UN Charter, and demonstrates a different reasoning process in interpretation.

In the League of Nations era, South-West Africa was placed under a Mandate conferred on South Africa, which was supervised by the League of Nations. Following the dissolution of the League, a vacuum emerged regarding the mandate's supervision, prompting questions about South Africa's remaining obligations, especially the obligation to receive international supervision and to submit reports. Article 80(1) of the UN Charter only provides that ‘until such agreements have been concluded, nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties’. Following the logic of Peace Treaties, no mechanism would exist to address the situation until an agreement was concluded between South Africa and the UN.

The ICJ, however, emphasized that Article 80(1) purports to safeguard ‘the rights of the peoples of mandated territories until Trusteeship Agreements are concluded’, and ‘no such rights of the peoples could be effectively safeguarded without international supervision and a duty to render reports to a supervisory organ’.Footnote ⁹⁸ It also noted that, according to Article 10 of the Charter, the General Assembly has the power to ‘discuss any questions on any matters within the scope of the present Charter and to make recommendations on these questions or matters to Members of the United Nations’. Based on these two provisions and also a rather ambiguous statement in a resolution of the Assembly of the League of Nations, the Court identified the General Assembly as the ‘legally qualified’ organ to fulfill this supervisory role.Footnote ⁹⁹ This is despite the fact that South Africa was still supervised by the ICJ based on the power transferred from the PCIJ according to Article 37 of the ICJ Statute.Footnote ¹⁰⁰

Later, in the Awards of Compensation advisory opinion, the Court also observed that ‘to ensure the efficient working of the Secretariat, and to give effect to the paramount consideration of securing the highest standards of efficiency, competence and integrity [set out in Article 101 of the UN Charter]’, it is ‘essential’ for the General Assembly to have the capacity to establish an administrative tribunal.Footnote ¹⁰¹ Furthermore, dismissing the claim that ‘an implied power can only be exercised to the extent that the particular measure under consideration can be regarded as absolutely essential’Footnote ¹⁰² and the concern about potential conflicts with other Charter provisions, the Court held that the administrative tribunal thus established can also impose legal limitation on the General Assembly itself.Footnote ¹⁰³

The institutional interpretative rules applicable to constituent instruments do not allow them to be interpreted as one may wish.Footnote ¹⁰⁴ They do, however, support a more dynamic approach to interpreting treaty text. A well-known example is the interpretation of the term ‘concurring vote’ in Article 27 of the UN Charter, which has been interpreted to include voluntary abstentions.Footnote ¹⁰⁵ Here, when a measure is essential for the effective functioning of an international organization and is not prohibited by the constituent instrument, it may be taken to ensure such effectiveness. Despite the possibility for States parties to negotiate a solution and the existence of alternative methods to mitigate the negative effects, precedent suggests that the most effective course of action may still be regarded ‘essential’ or ‘imperative’. In this context, the intervention of the GC by majority vote appears to be a less surprising option compared to measures permitted by the Court in the Reparation of Injuries, South-West Africa and Awards of Compensation advisory opinions.

When the GC's intervention by majority vote is clearly supported by ‘the imperatives associated with the effective performance of its functions’ and other interpretative elements do not convincingly suggest a different course, it is reasonable to conclude that this option is legally permissible under the AEWTO. Even if concerns remain regarding AEWTO footnote 3, which appears to establish a specific decision-making rule for the GC in its role as the DSB, the MC can certainly intervene through majority vote. Given the GC's function in lieu of the MC and the objective set in the MC12 and MC13, it seems overly formalistic to argue that this power must be exercised by the MC in its next meeting rather than by the GC.

Assuming any doubts persist regarding the legality of the option, they can be dispelled by broad endorsement of WTO members. The 2021 resolution of the Institute of International Law (IDI), concerning the interpretation of constituent instruments of international organizations, states that ‘when there is a general agreement among the membership of the international organization as to an interpretation, the interpretation should be presumed to be valid and intra vires’.Footnote ¹⁰⁶ While the definition of ‘general agreement’ is not entirely clear, as indicated by Mahnoush Arsanjani, it is distinct from the entire membership.Footnote ¹⁰⁷ However, equalizing a simple majority with ‘general agreement’ would also not appear appropriate,Footnote ¹⁰⁸ especially considering the more conservative institutional structure of the WTO.

For interpreting the AEWTO, a three-fourths majority is likely sufficient, as it aligns with the threshold under Article IX:2 for issuing a formal interpretation in the MC or the GC. Some may argue that permitting GC intervention constitutes an informal modification of the AEWTO, requiring a standard for ‘general agreement’ that closely mirrors the formal amendment rulesFootnote ¹⁰⁹ outlined in Article X, particularly its second paragraph, which mandates consensus for altering Article IX's decision-making rules. However, as discussed in Section 2.2, a more favorable interpretation of Articles IV:1 and XVI:3 could also justify GC intervention, or at least the MC's involvement. For amending these provisions, a three-fourths majority of the membership is adequate under the third and fourth paragraphs of Article X.Footnote ¹¹⁰

Support from more than three-fourths of the membership for restarting the appointment of AB members in the GC would not necessarily eliminate the possibility of legal challenges, as it would with a formal interpretation under Article IX:2. However, the presumption of legality generated by the general membership's support should outweigh any alternative interpretations put forward by individual States or scholars. Ironically, the most likely forum for challenging the restored AB would be the AB itself. Given the legal arguments outlined above, it is highly unlikely that the AB would uphold such a challenge.

Conversely, if the proposal garners support from just over half the membership, this would not necessarily affect its legality but could raise significant doubts about the effectiveness of the reactivated AB. Opponents may attempt to block its budget or refuse to participate in its proceedings, potentially exacerbating divisions within the membership rather than preserving the WTO's integrity. Thus, beyond examining the proposal's legality, it is essential to address the practical concerns of members to secure broader support.

4.1 Institutional Concerns Arising from GC Intervention by Majority Vote

Relocating the appointment of AB members from the DSB by consensus to the GC by majority vote, while securing broad membership support, is a complex endeavor. Migrating support for restarting the selection process for AB vacancies to endorsing the GC's majority vote is not straightforward, and discussing this option without the potential for a simple majority is impractical. And as noted in Section 3.2, even if the proposal manages to pass, a lack of substantial majority could pose challenges. It has been cautioned that this might invite dissent from members, potentially empowering the US to further its blockade, threatening the WTO's integrity.Footnote ¹¹¹ Conversely, if support can be rallied to achieve over a three-fourths majority among members, the AB would face fewer challenges and its legality would also be further bolstered.Footnote ¹¹²

The mobilization of WTO members hinges on many factors, such as the leadership within the organization and potential shifts in circumstances. Anticipating the outcome is beyond the scope of this article, which will focus primarily on making the proposal itself more appealing. In this spirit, this section will address two main concerns identified by many scholars that appear to inhibit members' support for this proposed solution – its negative impact on the practice of consensus within the WTO and the diminished incentive to advance institutional reforms once the AB is restored.

While consensus is not strictly required by the AEWTO for decision-making, it has become a custom among members. Except in its first year,Footnote ¹¹³ WTO members have been avoiding voting, a sentiment referred to by Gao as ‘the collective phobia of voting’.Footnote ¹¹⁴ Hillman, in her discussion, acknowledged the legality of GC's intervention by majority vote, but viewed it as an ‘ugly’ fix for the WTO Appellate Body. She expressed concerns that voting could undermine the preferred consensus approach among members and lead to challenges regarding the legitimacy of appointed AB members by the US and others, thereby impeding the AB's operational effectiveness.Footnote ¹¹⁵

This practice of consensus, as alleged by some scholars, has seriously hindered the organization's development, especially given the large but diverse membership since the WTO's establishment,Footnote ¹¹⁶ with the current crisis serving as a stark example. The Sutherland Report, an expert review initiated by the WTO itself, also acknowledged this issue and proposed possible changes.Footnote ¹¹⁷ However, this is undeniably a highly contentious matter that cannot be easily altered. Indeed, the practice has valid reasons, particularly in safeguarding the rights of small and developing States.Footnote ¹¹⁸

Even if changing the practice would benefit the organization in the long term, members are currently not prepared for such a shift. Without a detailed plan for altering the practice of consensus under serious consideration, transitioning to the fallback option of voting by simple majority would be too abrupt. The WTO would be transformed from an ‘IO lite’ to not only a ‘normal IO’, but an ‘IO pro’, as it could make important decisions with the support of fewer members compared to many other international organizations. This would exacerbate rather than solve the AB crisis.Footnote ¹¹⁹

Therefore, allowing the GC's appointment of the AB members by majority vote to set a precedent for the future could significantly impact the acceptability of the option. However, the conundrum lies in the fact that, even if it may not constitute an authoritative interpretation of relevant decision-making rules, it will inevitably influence future discourse, especially given the emphasis on practice in the interpretation of constituent instruments as noted in Section 3.

Another concern deterring WTO members from supporting the GC's intervention through majority vote is the potential loss of leverage to reform the current dispute settlement system once the GC restores the AB. The aim of reforming the AB has been shared by many members, with calls for improvements and clarifications of the DSU existing for some time.Footnote ¹²⁰ Admittedly, the crisis has accelerated negotiations in this regard. It is reasonable to assert that many members supported the mandate for the full restoration of the dispute settlement system with the expectation that some changes would be implemented. Once the AB is fully restored by the GC, calls for institutional reform are less likely to be heard by members that benefit from the existing arrangement or do not want to risk changing the status quo. This would make the GC's intervention unwelcome to members who sympathize with the US in its efforts to reform the dispute settlement system.

Meanwhile, some members may also be concerned that adopting the proposal could further alienate the US or even lead to its withdrawal from the WTO, given that the US has viewed the blockage of AB member appointment as leverage to push for fundamental reforms in the dispute settlement system.Footnote ¹²¹ Gao has taken a firm stance on this issue, suggesting that withdrawal from the WTO might not be a wise and straightforward option for the US.Footnote ¹²² He also noted that even if the US were to exit the organization, such a move ‘would not be a fatal blow’ to the overall functioning of the WTO.Footnote ¹²³ However, to attract the support of as many members as possible, a more conciliatory approach is required.

That said, from the perspective of institutional law, allowing the AB to remain hostage while waiting for the negotiations with uncertain outcomes is not an option. Members' lack of action or eventual acquiescence to such practice may evince that ‘the ability to block Appellate Body appointments is a feature of the WTO institutional framework’.Footnote ¹²⁴ Therefore, something must be done; otherwise, a very bad precedent may be set for the WTO and even other international organizations,Footnote ¹²⁵ indicating that in the name of reform, institutional predation is permitted.

4.2 Recasting GC Intervention as a Shield rather than Sword

Based on the concerns noted above, the best solution, as noted by Kuijper, is to limit the direct appointment of AB members by the GC applying majority vote as ‘an exceptional one-off measure connected to the threat of malfunctioning of the AB, and accompanied by explicit openness to further discussions with the US’.Footnote ¹²⁶ However, sending such signals can be difficult, as this practice can always be cited in the future as a precedent for deviating from consensus, and without concrete actions, mere confirmation of ‘openness to further discussions’ appears less convincing.

Efforts have been made by scholars in this regard. Kuijper suggested a GC decision ‘identifying certain categories of decisions [including the nomination of AB members] that in the future could be taken by [] a super-qualified majority’.Footnote ¹²⁷ Nevertheless, as admitted by him, such a decision itself also needs ‘the support of a very large majority’.Footnote ¹²⁸ As noted above, to enhance the legality of the GC's majority voting, it has been suggested that an interpretation be issued. Petersmann proposed that the interpretation could also clarify that ‘such majority decisions on meeting collective legal obligations of all WTO members do not establish a precedent for WTO decision-making on discretionary trade policy issues’.Footnote ¹²⁹ The credibility and effectiveness of this statement, however, can still be questioned. Regarding the ‘openness to further discussion’, Hillman suggested that changes to the DSU need to be made before resorting to voting to show the good faith of members.Footnote ¹³⁰ But achieving consensus on specific changes may be even more difficult, potentially putting the cart before the horse.

To indicate that majority voting is reserved for exceptional circumstances, a formal interpretation issued by the GC in a separate document does not appear to be necessary. As observed in Section 3, the GC's intervention by majority vote to solve the crisis is legally permitted under the AEWTO, and there is little need for an interpretation to further confirm its legality. A formal interpretation might complicate the process, as it would require an additional agenda item to be discussed by members before appointing AB members. And such an agenda item is likely be opposed by some members, leading to an additional occasion of deviating from the practice of consensus. Thus, a formal interpretation may present more problems than benefits.Footnote ¹³¹

Instead, a well-designed proposal to appoint AB members could help restore the AB, signal that the intervention of the GC by majority vote is limited to specific occasions, and reassure members that they still have leverage to push forward the reform of the AB. In the preamble of the draft GC decision, it is crucial to state that recourse to a vote for the appointment of members of the AB ‘shall be understood to be an exceptional departure from the customary practice of decision-making by consensus, and shall not establish any precedent for such recourses in respect of any future decisions in the WTO’.Footnote ¹³² Additionally, the draft decision should highlight that the AB's ongoing dysfunction hinders the effective functioning of the WTO, acknowledge the extensive consensus-seeking efforts by WTO members, and affirm members’ intention to pursue further reform of the dispute settlement rules and procedures with which the present resolution is without prejudice to.Footnote ¹³³

These statements are necessary for raising the threshold for invoking the practice in the future and showing the commitment of members to further reforming the AB, but they are not sufficient to mitigate members' concerns. They can be viewed as mere lip service, easily made and lacking substantial impact. In future situations, members might simply replicate these statements. Therefore, further action is necessary to emphasize the remedial nature of the GC's intervention by majority vote, ensuring it serves as a shield rather than a sword, or merely as a safety valve.

This article proposes that the draft decision limit the GC to appointing less than seven AB members. This move would reactivate the AB, but not restore its full operation within the current legal framework.Footnote ¹³⁴ This may not be entirely satisfying for many WTO members. Given the current case load, even if all seven judges were restored, it might still take some time for the AB to return to its normal operation. Neither does it fully meet many members' desire for full restoration of the AB. However, it is a necessary move to demonstrate the remedial nature of the GC's intervention by majority vote. This move also leaves room for maneuver for members, including the United States, which believe that urgent reform of the AB is needed. Although not fully restoring the AB, they can be assured that they still retain some leverage to push for these reforms.Footnote ¹³⁵

In this regard, appointing six AB members seems to be appropriate, although any number between three and six would serve the aforementioned purpose. Fewer members, in addition to raising concerns about reduced efficiency and the concentration of power, presents the practical challenge of allocating the limited seats among WTO members. This issue is less pronounced with six AB members, as it has been customary for the US to nominate one member of the AB.Footnote ¹³⁶ Given that the US is unlikely to nominate a member in the reactivated AB, other seats can be allocated in a manner consistent with past practices.

In addition, to ‘pragmatically accommodate US power politics’, as aptly noted by Petersmann, the proposal could acknowledge that ‘members will submit disputes to the newly composed AB only among themselves, without initiating AB proceedings against the US’, until a solution is found to address its concerns.Footnote ¹³⁷ This ‘opt out’ provision could also be extended to a limited number of WTO members, if necessary, to garner broader support for the reactivation of the AB.Footnote ¹³⁸

Voting on such a draft GC decision is not the end, but serves more as a useful testing ground. Essentially, it calls for members to revert to the time before the AB's collapse. If this move is not accepted or is passed by only a narrow margin, it signals that the AB's full restoration will require significant changes either within or outside the WTO. Absent such changes, focus may shift more to the operation of the MPIA, as the lack of support for this modest proposal indicates a lack of interest among members in returning to the pre-crisis era. Even if the AB manages to be restored, it could soon fail again due to members’ lack of cooperation. In this scenario, the AB may not deliver the security and predictability expected.

However, if this proposal is adopted with the support of a vast majority of WTO members, the reactivated AB may enjoy high legitimacy among them, and as noted above, its legality is further enhanced. In such a case, members may consider fully restoring the AB in the near future, while also pressing ahead with reforms to the dispute settlement system. Ideally, such unity among the membership could influence the decision of the United States, leading it to voluntarily cease hindering the proper functioning of the AB.