Empirical Research Of State Sovereignty In WTO Dispute Settlement

Since the Westphalia state sovereignty system had built,the world has a great change,which make a significant challenge against state sovereignty politically and economically.Although a great deal of international organizations and international agreements break the traditional concept of state sovereignty,the modern international community still based on Westphalia state sovereignty system.While the fact that states are still the elementary unit of the world has not changed,state sovereignty continues to be the collective body of supreme authority,both internal and external.Among the international organizations,WTO has the ‘rule-based' system,the most remarkable part of which is the dispute settlement mechanism.Because of its quasi-judicial character,the WTO dispute settlement mechanism has got great concerns from the international community since its foundation,especially the supposed improper intervention to the state sovereignty.Undoubtedly it has got broad recognition and praise during last 21 years'(from 1995 to 2016)performance and development.But the concerns about its relationship with state sovereignty has never been loosened,which is showed by about 30% of the total adjudicatory reports had the state sovereignty argument or defense or statement.This paper analyzed the dispute related to state sovereignty in the cases of WTO dispute settlement and found that WTO dispute settlement body always reviewed the three respects while dealing with state sovereignty: state consent,substantial reviewof specific rules,the purpose and object of WTO,ensuring the effective implementation of WTO rules.Meanwhile,with respect to the conflicts between state sovereignty and WTO rules,WTO dispute settlement body balanced multiple interests by using the strategies of rules of evidence,case-by-case basis and evading problems,in order to avoid improper intervention to the state sovereignty.The usage of these methods made WTO dispute settlement body neutral while performing their duties.This paper is divided into seven parts,including the Introduction and six main chapters.Chapter One summarizes the theory of state sovereignty.Because this paper discuss state sovereignty focused on the international organization and international treaties,It limits the concept of state sovereignty under modern international law and international relations.Since the foundation of Westphalia state sovereignty system,the concept of state sovereignty suffered political and economic challenges steadily,which is amended and developed by the academic community the new theories of state sovereignty transfer,global governance,modern sovereignty and so on.Nevertheless,at the contemporary stage of the world,state sovereignty is still the traditional concept consisted of two aspects---internal supreme power and external independence,which have not been overturned by the international community.Chapter Two gives the brief of the problem of state sovereignty constrained by WTO dispute settlement mechanism.State consent,international custom and jus cogens are three legal methods of constraint of state sovereignty,among which state consent is the primary.But under the quasi-judicial WTO dispute settlement mechanism,the Member should enforce the adjudication,which differs other traditional international dispute settlement system with more restrictive and mandatory.These serious challenges get a broad theoretical disagreement,which shows the doubts and concerns to WTO dispute settlement mechanism.Chapter Three reviews the relationship between WTO dispute settlement procedures(panel and appellate body proceedings)and state sovereignty.It analyzes16 reports(13 cases in consolidated)with the three aspects—references of panel and appellate body,participant and interpretation—and conclude the common rules usedby WTO dispute settlement body dealing with the state sovereignty in its procedures.Chapter Four reviews the relationship between application of law in WTO dispute settlement(panel and appellate body proceedings)and state sovereignty.It analyzes 40 reports(22 cases in consolidated)with the three main areas—the state's duty of protect people,animals and plants under its jurisdiction,the ways and methods of the administration of domestic affairs,and the choices of international cooperation and organizational structure—and conclude the common rules used by WTO dispute settlement body dealing with the state sovereignty when applying WTO substantive rules.Chapter Five reviews the relationship between disagreement on implementation and state sovereignty.It analyzes the only 5 reports(3 cases in consolidated)under Article 21.5 of the DSU with the three aspects—Jurisdiction expansion against self-discipline,international cooperation against unilateralism,freedom of choice of national system against WTO compliance —and conclude the common rules used by WTO dispute settlement body dealing with the state sovereignty with respect to the implementation of the recommendations and rulings adopted.Chapter Six concludes that WTO dispute settlement mechanism regulates and self-coordinate with state sovereignty.On the bases of the analyses from Chapter Three to Chapter Five,we find the consideration factors of state sovereignty by the WTO dispute settlement body: state consent,substantial review of specific rules,the purpose and object of WTO,and the balance strategies with state sovereignty: rules of evidence,case-by-case basis and evading problems.Accordingly,the paper advises that we must re-orientate state sovereignty and make more efforts to WTO specific rules when dealing with the WTO disputes.Besides,as long as WTO dispute settlement mechanism which is rule-based makes a good example of the relationship with state sovereignty,it is important to make a further development and try to build the international economic dispute settlement mechanism accordingly.