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: