Chios C. Carmody

Some Reflections on the Culture of WTO Law

This contribution assesses the treatment of claims and defences to culture in WTO dispute settlement to date. It concludes that, despite some interpretative sensitivity, WTO dispute settlement is hampered from being fully sensitive to culture by its own particular ‘culture’ in at least three respects. First, WTO dispute settlement analyzes treatment of goods in a utilitarian and functional manner, thereby neglecting their associational, heritage or symbolic attributes. Second, culture is something communal, yet the product-by-product comparisons engaged in WTO dispute settlement claims about non-discrimination miss this and also overlook the fact of culture as a human right. Third, WTO dispute settlement tends to view claims to culture as a right asserted exceptionally and therefore something requiring evidence and a restrictive interpretation, both of which tend to work against liberal interpretations of what culture is. The contribution concludes that further inspiration may have to come from the treatment of culture in other systems of law. These could serve as an example of the role that cultural considerations might play in the development of WTO law.

‘Rights and Obligations’ in WTO Law

The phrase “rights and obligations” recurs frequently in WTO law and suggests a fundamental dualism about WTO legal relations. Each WTO obligation is thought to be matched by a single, corresponding right. However, a close look at WTO law reveals that the phrase is, at best, a portmanteau term for a diversity of legal relations involving both rights and obligations, but also privileges and “no rights”, powers and liabilities, immunities and disabilities. This working paper seeks to illuminate the rich array of legal relationships under WTO law and to identify some issues arising from their recognition in WTO decision-making.

Rules, Effects and the Structure of WTO Law

The WTO Agreement is said to be unconcerned with trade effects. Instead, WTO member countries incur state responsibility on the basis of their acts alone. This responsibility is reinforced by the irrebuttable presumption contained in DSU Art. 3.8 and longstanding practice, which together constitute the core of WTO law. At the same time, trade effects do have a subsisting importance in the assertion of certain trade-related rights, including the ability to invoke countermeasures, in non-violation cases, and inferentially in the determination of violation. This suggests that the idealism inherent in a presumed violation is reinforced or tempered by a certain realism about prevailing conditions. It also suggests that the evidentiary distinctions between presumption and proof in the WTO Agreement are a sign of a deeper conceptual divide between contending yet complementary modes of legal thought in the treaty.