1/ Thread on filling Appellate Body vacancies by majority or 'consensus minus one'. TL;DR: Contrary to many highly esteemed lawyers, I fail to see how this can be done under WTO rules, and doing it against WTO rules would destroy the organization itself.
2/ Like every non-dispute-related DSB decision, AB appointments must be made by positive consensus (DSU 2(4), 17(2)). Consensus is achieved when ‘no Member, present at the meeting of the DSB when the decision is taken, formally objects to the proposed decision’ (DSU footnote 1).
3/ Conclusion 1. As long as the United States remains a Member of the WTO and is present at the meeting of the DSB when a proposed appointment is discussed, it has the power to withhold support for consensus.
4/ One could consider revising the DSU to change the possibility of consensus-blocking. However, the Agreement Establishing the WTO is clear that: (i) amending the DSU requires consensus among all the Members (X:8); (ii) amending the AEWTO’s provisions on amendment also ...
5/ requires ‘acceptance by all the Members’ (X:2); and (iii) collective interpretations, which can be made by majority, ‘shall not be used in a manner that would undermine the amendment provisions’ (IX:2). While it is not impossible to engage in legal contortionism and find a ...
6/ loophole (one could propose an amendment to the article on collective interpretation rather than to the one on amendment), the rationale that emerges from these rules is that: (a) any WTO Member can prevent the appointment or re-appointment of an Appellate Body Member;
7/ and (b) withdrawing this power from individual Members requires consensus among the Membership. Conclusion 2. WTO procedural rules do not allow majority revision of the rules to allow majority filling of AB vacancies.
8/ One may argue that Members have an obligation to cooperate in good faith to ensure the continued operation of the dispute settlement system. They can say this in German. They can point to the Montreal Protocol, where parties sanctioned Russia through 'consensus minus one'.
9/ However, with respect to adjudication, international law is clear: the failure by a party to cooperate in the establishment of an adjudicator does not, without a specific procedure agreed upon for this purpose, allow others to overrule the requirement of consent.
10/ For the nerds: authority for this comes from a 1950 ICJ decision, Interpretation of Peace Treaties (Second Phase), Advisory Opinion, 1950 I.C.J. Rep., p. 221. I do not know of any case in which an adjudicator was composed against procedural rules requiring consent. Do you?
11/ Conclusion 3: Absent specific rules, the violation of the obligation to compose an international adjudicator does not create for others (Members or, to be comprehensive. the Secretariat) the right to proceed to this composition without the consent of the blocking Member.
12/ In addition to their legal fragility, creative procedural solutions are undermine the very commitment to rules-based dispute settlement that they seek to preserve. The WTO legal/dispute settlement system is founded on a delicate balance.
13/ Each WTO Member has agreed to submit existing commitments to adjudication, on the condition that it retain full control, through the consensus principle, over the evolution of these obligations. Majority decisions may allow temporary waivers or authoritative interpretations
14/ but may not lead to the imposition of new rules on unwilling Members. Besides this legal impediment, other Members would likely consider the political implications of submitting a matter to majority decision-making. Were they to impose a change of rules on one Member, ...
15/ no matter how unreasonable its actions may seem, the Members adopting the majority decision would risk becoming the overruled Member the next time. No one wants that.
16/ For more: All of this is adapted from my paper on the Trade Wars. There, I propose an ex ante agreement to Article 25 appeals arbitration as the only solution that does not breach a core WTO commitment. This is not a perfect solution.
17/ The US may dislike it, because even if they do not join, an AB-flavoured appeals arbitrator will have authority and produce WTO interpretations that will guide the WTO regime. Others may dislike it because they would be subject to compulsory adjudication and the US would not.
18/ What it does is create a 'backstop' that prevents the WTO regime from disintegrating without compromising the core commitments of Members to (i) compulsory adjudication; and (ii) consensus decision-making. The agreement would have to be designed properly to avoid free riding
19/ and to be proposed as an amendment/interpretation once a critical number of Members had accepted it. But it would prevent the US actions from breaking the system for everyone while preserving its procedural rights. The paper is here: papers.ssrn.com/sol3/papers.cf… /thread
