Introduction

This chapter considers some of the treaty interpretation issues that may arise in relation to China's Accession Protocol, from a public international law perspective. It uses the provisions of the Protocol relating to anti-dumping measures as a case study to bring those issues into relief.

WTO treaty interpretation rules

The Vienna Convention

In a recently published article, I considered the methodologies used by the WTO Appellate Body in interpreting WTO agreements generally. I noted that the WTO Panels and the Appellate Body rely on the treaty interpretation rules expressed in the Vienna Convention on the Law of Treaties (the ‘Vienna Convention’) as the basic rules for interpreting WTO instruments. This is because those rules represent the ‘customary rules of interpretation of public international law’, which Article 3.2 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (the ‘Dispute Settlement Understanding’) requires Panels and the Appellate Body to apply.

The Accession Protocol as a treaty

The same Vienna Convention rules would apply to an Accession Protocol, which is in essence an agreement, binding both on China and on current and future WTO members, as to the modified terms of China's accession to the WTO. Those terms of accession include any paragraphs of an Accession Working Party Report that are specifically picked up by the Protocol, as well as the member schedules that are annexed to the Accession Protocol.