| This article is named as The Interpretation of Rules and Rules for Interpretation—Legal Interpretation in WTO Rules. It is intended to conduct a systematic and deep study over the interpretation of international law—WTO Rules based on traditional juridical hermeneutics and rules. Specifically, this article will elaborate such essential questions as the necessity of legal interpretation over WTO rules, the subject of legal interpretation, the object of legal interpretation, the goal of legal interpretation, principles of legal interpretation, means for legal interpretation, rules for legal interpretation and the effect of legal interpretation. It is expected to bridge the traditional legal interpretation theory with interpretation of international law such that our understanding and application of WTO rules will be enhanced and the ability of coping with the complicated international trade disputes will be also accordingly improved.This article is developed in eight parts except the preamble and conclusion with around 130 thousand characters. The article is developed logically in the manner of generality of traditional legal interpretation theory—interpretation of international law (or international conventions)—interpretation of WTO Rules. "As regards the preamble, it elaborates the background of this topic, the purpose of this article and the specific questions. It is noted that the traditional science of legal interpretation mainly has the domestic law interpretation as its object. However, the international law circle attached little attention to and absorbed little from the hermeneutics, especially from science of legal interpretation except simply adopting some concepts and means in domestic law interpretation. It is believed that insufficiency lies in the lack of the study of interpretation of international laws such as international conventions by the international law circle and an interpretation system like the traditional science of legal interpretation,for example, the basic concepts in the traditional science of legal interpretation like interpretation principles, interpretation rules, and interpretation means have also been applied in international law. However, the connotation and denotation of these concepts have not been strictly defined such that these concepts are always misused and confused. Furthermore, the abstract questions like object of interpretation and the goal of interpretation are rarely touched. In the recent years, some domestic scholars are undertaking the legal interpretation study over WTO dispute settlement body and are achieving some. However, most research just analyses and elaborates the application of Vienna Convention on the Law of Treaties (hereinafter referred to as Vienna Convention) in the interpretation of WTO dispute settlement.Despite the discrepancies lying between international law and domestic law in respect of regulating subject, object, means and tools and incompatibility of domestic law interpretation theory with international law, the interpretation for domestic or international law shares some principles since both involves comprehension, clarification or explanation of the text of law from the perspective of science of legal interpretation. The international law interpretation study should be the indispensable part of science of legal interpretation. The establishment and operation of WTO rules add the necessity and possibility of connecting the traditional science of legal interpretation with the interpretation of international law like WTO rules.Part one " WTO rules and legal interpretation" first elaborates the definition of "legal interpretation" . After analysis over several opinions on the "legal interpretation" , it is pointed out that three elements or three basic questions shall be taken into consideration, namely subject of interpretation, i.e. who conducts interpretation, object of interpretation, i. e. what will be interpreted, and goal of interpretation, i. e. why to interpret. "Legal interpretation" is defined as the actions of comprehension, clarification and explanation over the text of lawsconducted by competent subject of interpretation in line with certain logical rules for probing into the intention of laws.As regards the necessity of legal interpretation, it is thought scholars have conducted some reasonable analysis over such necessity from different perspectives and all these opinions concur on one principle i. e. laws needs interpretation. However, a common default lies in these opinions, i. e. They all neglect that actions of interpretation itself is a natural and objective process during the application of laws. Law interpretation has natural and objective attributes and is objective actuality not subject to displacement by will.As regards the historical development of science of legal interpretation, such a route is introduced, i. e. from hermeneutic in Ancient Romans, glossators, conceptualist jurisprudence, to free-law school of law, and specifically four chief schools of juridical hermeneutic in co temporary western country are emphasized, i. e. positivist jurisprudence of Hart, MacCormick. Constructive interpretation and integrity jurisprudence of Dworkin, dialogue theory and rights regime of Habermas , and pragmatic jurisprudence of Posner and FishThis, article specifically elaborates the legal interpretation in the English and American common laws. I am prone to the opinions that legal interpretation also exists in the common laws on the following grounds, that is the statute law and common law are both the legal norms despite the different forms, one in the form of statutes and the other in the form of precedents. Essentially, the justices apply the legal norms instead of forms of legal norms. Though different logic methods are adopted in respect of statutes and common laws, i. e. the former adopts deductive methods and the latter adopts inductive methods, both systems are same in the comprehension, clarification and explanation over legal norms. Therefore, legal interpretation also lies in the application of common laws.As regards the attributes of WTO Rules, it is pointed out WTO Rules are groups of binding international conventions providing the rights andobligations of governments of WTO members when making and enforcing laws and regulations in international trade. It is believed necessity for interpreting WTO Rules are caused by, besides the ordinary grounds, the ambiguity resulting from the compromise and interests balance between all members, the conflicts between state sovereignty, environmental protection and free trade, and different understanding of WTO Rules owing to discrepancies of interests orientation, languages and cultures and legal regimes.Part two is " subject of legal interpretation of WTO Rules" . It is thought certain state organs like legislature , judicial organs and administrative organs are the subject of law interpretation from the perspective of domestic laws, who enjoy the power of law interpretation. There are two subjects of legal interpretations of international law, namely the All Members of the treaties and the authorized special institution, like International Court of Justice. There are four bodies that enjoy the power of interpretation for WTO Rules, namely the Ministerial Conference, General Council, the panel and the appellate body. It is specifically elaborated that the relationship between legislative interpretation and judicial interpretation and the operation of power of law interpretation in the framework of WTO. Hence, it is found that no conflicts exist between the Ministerial Conference, General Council and the panel, the appellate body in respect of power of legal interpretation. The power of legal interpretation of WTO Rules is practically applied by the panel and appellate body.Part three is " the object of legal interpretation of WTO Rules" . In this article, the object of legal interpretation is defined as text of laws, including the articles of laws and circumstances. Disagreement is presented in respect of the following opinions, which are the object of legal interpretation is legal norms and the object of interpretation includes the text of laws and legal facts. Furthermore, it is pointed out that legal norms should be the result of legal interpretation instead of the object of legalinterpretation and it is wrong to consider the legal norms as objects of legal interpretation. Besides, legal interpretation and facts classification are different actions during the application of laws. Facts classification follows the legal interpretation from the time perspective. From the perspective of results, the legal interpretation intends to probe into the aim of legal norms while the facts classification intends to probe into legal attributes of facts. Therefore, the opinion that the object of interpretation includes the text of laws and legal facts also needs more study. This article also analyses and differentiates several concepts relating to the legal interpretation, namely, legal sources, documents of legal interpretation, materials of legal interpretation and sources of legal interpretation. It is furthermore pointed out that technically objects of interpretation in a specific legal section can be probed into from the legal resources and materials of legal interpretation in the specific legal section.It is believed that object of interpretation in international law are explicitly prescribed in contrast of domestic law, as is indicated in article 38 of the Statute of the ICJ and articles 31 and 32 of Vienna Convention. Objects of legal interpretation of WTO Rules should be probed into in connection with the Statute of the ICJ, Vienna Convention and WTO Rules itself and practices of WTO dispute settlement. Under the framework of WTO Rules, the object of legislative interpretation conducted by the Ministerial Conference and General Council are different from that of judicial interpretation conducted by Dispute Settlement Body. The object of interpretation conducted by Ministerial Conference and General Council does not include the Plurilateral Trade Agreements or the circumstances relating to articles, while the object of interpretation conducted by DSB does not include Trade Policy Review Mechanism, but includes Plurilateral Trade Agreements and relevant circumstances. In practice, the international law other than WTO Rules can also become object of legal interpretation conducted by DSB.Part four is "goal of legal interpretation for WTO Rules" . In the article, the goal of legal interpretation is defined as probing into the intention of legal norms. Three concepts , namely , goal of legal interpretation, object of legal interpretation, and purpose of legal interpretation are analyzed. It is furthermore pointed out that goal of legal interpretation is different from the object of legal interpretation since the former relates to why to interpret and the latter relates to what will be interpreted. However, there exists important correlation between goal of legal interpretation and the object of legal interpretation. The opinions on goal of legal interpretation vary with the opinions on the object of legal interpretation. And the goal of legal interpretation is different from purpose of legal interpretation, the former means the authorities will comprehend and clarify the meanings of text of laws while the latter means the function resulted from the action of legal interpretation and its results.Several schools relating to goal of legal interpretation in respect of traditional juridical hermeneutics and international law are also introduced. It is pointed out that though there are different opinions on the goal of legal interpretation, there mainly exists two opposite opinions, namely, subjective and objective view, whether in terms of domestic law or international law. The subjective view holds that the interpretation probes into the subjective view of legislators at the time of legislation. The objective view holds that interpretation probes into the objective meaning of the text of laws.In the article, the goal of legal interpretation for WTO Rules is elaborated from theoretical and practical perspective. It is pointed out that the goal of legal interpretation for WTO Rules should be probing into and clarifying the intention of WTO Rules. This intention does not mean the subjective intention of all contracting parties at the time of concluding the convention, but the objective meaning conforming to the purpose of the convention and social reality while applying such conventions. Once the WTORules are established, WTO Rules are independent from the legislators and even those who interpret the convention. The intention of members shall solely be determined as per the text of such Rules, other than those outside the text of the WTO Rules. Those who interpret shall not assume the intention of members.Part five is "principles of legal interpretation for WTO Rules" . It is believed that the principle of interpretation falls into two categories, namely the general principles and specific principles. The general principle emphasizes the ideological perspective, which is more macroscopic and abstract, while the specific principles emphasizes the practice perspective of legal interpretation which is more specific and concrete. It is found that traditional juridical hermeneutics is prone to study the general principles when probing into the principles of legal interpretation, while as the international law circle is prone to the study of specific principles when elaborating the principles of interpretation for international laws. It is suggested to list the general principles of law interpretation as follows: the principle of integrity of stability and situations of law, the principle of integrity of legislative background and reality, the principle of integrity of legislation intention and judicial purpose and the principle of integrity of legitimacy and reasonableness.It is believed the principle of good faith shall be the most important general rule of interpretation for international convention. Understanding on Rules and Procedures Governing the Settlement of Disputes does not only provide the procedure for dispute settlement but also the guidelines for interpreting the WTO Rules. Besides, the panel and the appellate body also establish several principles of interpretation. Such principles consist of general principles and specific principles. The general principles include the principle of good faith, principle of protecting the reliability and predictability of multilateral trade system, the principle of conforming to the purpose of WTO Rules, the principle of neither adding nor diminishing the rights and obligations under the WTO Rules and the principle of achievingthe satisfactory settlement to the greatest extent. And the specific principles include the principle of effective treaty interpretation, principle of presumption against conflicts, principle of same text same meaning, principle of strict interpretation, principle of in dubio mitius, principle of not contradicting with the common sense and the principle of non-retroactivity of treaties. This article specifically elaborates the "legitimate expectations" . After study over some practices of WTO dispute settlement body, it is found that the opinion that the legitimate expectation is one principle for legal interpretation is still disputable.Part six is "means of interpretation for WTO Rules" . Firstly, several schools for means of legal interpretation have been analyzed. Different opinion is presented against the opinion that " excluding some means of interpretation out of the regime of interpretation means or denying the independence of some means of interpretation within the regime of interpretation means. It is pointed out that the concepts such as principles of interpretation, interpretation rules and means of interpretation are introduced in traditional international law. However, these are not strictly differentiated, but often confused. Hence, it is essential to apply theory and tools of juridical hermeneutics to probe into the means of interpretation for international conventions in the relevant materials. The Vienna Convention provides the general rule of interpretation of international law, which is widely recognized by the international community as "customary rules of interpretation of public international law". Hence, such convention is the most important relevant material for probing into the means for interpretation of international law. There are four means of interpretation defined in the Vienna Convention, namely, the interpretation of text, contextual interpretation, interpretation in light of the object and interpretation in light of purpose. A positive analysis has been adopted to study the application of such four means of interpretation in the practice of WTO dispute settlement. Meanwhile, it is pointed out that the provisions of the Vienna Convention do not mean the holistic means of interpretationfor international law. Surely, it is also not the whole of means of interpretation for WTO Rules. Through review of practices of WTO dispute settlement, it is found the panel and appellate body adopts irregularly means of restraint interpretation, means of broadening interpretation, means of interpretation by sociology.Part seven is " rules of interpretation for WTO Rules" . The core of rules of interpretation is hierarchy and sequence of application of various means of interpretation. After study over several schools of rules of interpretation, it is pointed out that it is hard to define whether there is a hierarchy order between various means of interpretation, because on one side it is hard to find a reasonable standard to determine which means is higher or lower, and which is good or bad, and on the other side all means of interpretation have respective advantages and disadvantages. Thus, the conjunction of those means of interpretation is needed to achieve the goal of interpretation. Then another question arises that how those means of interpretation shall be applied in a sequence when many means of interpretation are adopted. Since law interpretation is a logic action and a natural and objective process, various means of interpretation cannot be applied by the same subject at the same time for the same place and there must be a sequence for application of means of interpretation. Such sequence is often determined by various factors. It is concurred that there does not exist hierarchy order between various means of interpretation for international conventions, but a logic sequence for their application" . Accordingly, the disagreement is presented against the opinions that " there is a hierarchy order in respect of those means of interpretation. "It is pointed out that there is no fixed hierarchy order for various means of interpretation for WTO Rules. However, there is a logic sequence of application of these means of interpretation. In the practice of WTO dispute settlement, the panel and appellate body often integrate the text interpretation, the contextual interpretation and the interpretation in light of object of the conventions, among which generally first is textinterpretation, then the contextual interpretation and at last the interpretation in light of object of the conventions. As regards the interpretation in light of purpose, preparatory documents and the contracting conditions are used to probe into the intention of contracting parties at the time of conclusion of conventions. However, such means of interpretation is restricted under the WTO Rules, a multilateral trade system.Part eight is " effect of interpretation of WTO Rules" . This article elaborates the effects of legal interpretation respectively conducted by the Ministerial Conference, General Council, panel and appellate body. It is believed the interpretative made by the Ministerial Conference and General Council is binding on all members like WTO Rules. Through historic and positive analysis, it is concluded that the interpretation made by the panel and appellate body is not generally binding but on individual case. The interpretation made by panel and appellate body does not constitute the precedent. However, in most cases, the interpretation made by the panel and appellate body, specifically the latter are actually used as the precedent. The interpretation indicated in the panel or appellate body report, which fails to be adopted, does not have any legal validity, but some supply guidance for the cases thereafter. Since the appellate body interpretation can overrule the interpretation made by the panel and the interpretations made by the appellate body are more easily accepted as precedent, interpretation made by appellate body is more powerful than that made by the panel. At the end of the article, the theory of "sequential novels" presented by Dworkin in its juridical hermeneutics is adopted to demonstrate the effect of interpretation made by panel and appellate body, as reinforces the conclusion achieved through historical and positive analysis. |
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