| In general rules,the basic principles of fulfilling international obligations are"performing the international obligation in good faith" and "Pacta Sunt Servanda ".However,whether there is a duty for a state to ensure conformity of its domestic laws with its international obligations in according to the convention is always unresolved.As the observance of treaties is considered,the fulfillment of international obligations in domestic law is that "a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty".In other word,domestic laws cannot be relied upon to avoid international obligations.In dispute settlement practices,tribunals determine that whether the obligations raised by the treaties have violated is according with that whether the specific impairment have been resulted,while not basing on that whether the domestic law per se is not conforming to the international obligation.The domain that t the domestic law should be examined by the panel have been established through practices rather than expressly provision in GATT legal system.Conversely,Article 16.4 of<Agreement establishing the world trade organization>(hereafter referred to as<WTO agreement>)provides the newly senses for such practices which clause is "Each Member should ensure the conformity of its laws,regulations and administrative procedures with its obligations as provided in the annexed Agreements".This article expressly for the first time demands that the domestic laws should be conformed to the international obligations,which means that the member fulfill the WTO obligation not only in specific action result,but also in enacting act.The thesis firstly analyses the legal text of the Article 16.4 of<WTO agreement>and probe it’s meaning ought to be.Furthermore,this article investigates the legal force of the article 16.4 of<WTO agreement>in WTO legal system on the base of the history materials and WTO cases law.The article retrospect two arguments about the legal effect of the Article 16.4 of<WTO agreement>that one views that this article ought to be means that not only the application results of the legislature but also the legislature should conform with the WTO obligations,while the reversal views that only the mandatory legislation can per se violate the WTO obligations,and points out why the latter is not backed the author.Secondly,the thesis compares the different dispute settlement practices between GATT and WTO,and points out that panel of GATT dividing the domestic laws into mandatory legislation and discretionary legislation was reasonable,however,the succession by the WTO that only the mandatory legislation per se can violate the WTO obligations and the discretionary legislation per se can violate the WTO obligations is illegal,which fundamentally erodes the effectiveness of Article 16.4 of<WTO agreement>.Thirdly,the thesis,through the implementations of the DSB decisions and rulings,points out that because there are no actual performance obligations in DSU,consequently,the Article 16.4 of<WTO agreement>is in fact impossible mission,which deem to result the amending of the Article 19 and Article 22 of DSU.The thesis includes 5 chapters without the preface and the conclusion.Chapter one deals with the relationship between WTO law and international public law,with pointing out that WTO law’s characteristic as restraining the internal sovereignty,which determines that its operation of WTO rights and duties is different from the other international treaties.As the result,domestic law of party member is outstanding issue in GATT/WTO legal system.In this chapter,the author compares the WTO law and the other international treaties,and asserts that WTO-conformity of the domestic law is necessary choice under the WTO obligation in order to establish the transparent,fair and predictable trade environment,retrospectively analyzing the treatment of domestic law in GATT.The purpose of Chapter two is to identify the exact meaning of the article 16.4 of<WTO agreement>,mainly through the history negotiation text and decided cases material,Firstly,this chapter investigates the specific term of the article,basing on the different draft proposition arisen by negotiation parties and DSU rulings.Secondly,this chapter finds out that the obligation of WTO-conformity of the domestic law relocates the relationship between the domestic law and the international law.Lastly,this chapter indagates the supremacy of the WTO law and its constitutionalism function.Chapter three contains a study of division between the mandatory legislation and discretionary legislation.The distinction between mandatory and discretionary legislation is one of the prominent tools that WTO adjudicative bodies apply in reviewing the compatibility of domestic laws with the WTO obligation.Firstly,the chapter compares the WTO distinction practices with the GATT distinction practices.The domestic law in GATT is actionable with no expressly legal base,while the article 16.4 of<WTO agreement>brings about legal basic for the actionability of the domestic law.Secondly,the chapter contains a survey of the division practice of mandatory legislation and discretionary legislation,achieving the conclusion that the division standard successive by the WTO DSB from is unreasonable and erode the binding effect of the article 16.4 of<WTO agreement>,while the DSB intents to balance the international good governance and the national anonymity.Thirdly,the chapter traces the development history of the conception of mandatory legislation,and talks about some mistaking conclusion on the distinction between mandatory legislation and discretionary legislation concluded by Chinese academics.Finally,the chapter emphasizes the reasonability of the panel report of "American 301 clause" case,which asserted that the discretionary legislation can breach the WTO obligation.Chapter three outlines the conclusion the WTO DSU have erode the legal effeteness of the WTO-conformity obligation provided in article 16.4 of<WTO agreement>,by taking away the discretionary legislation from the obligation of WTO-conformity.Recently,DSB has realized the loophole,and have constrained the scope of the discretionary legislation exemption from the WTO-conformity,by regarding the discretionary legislation as actionable in procedural process.Chapter four deals with the implementation of recommendations and rulings by the DSB.There are multiple choices for the Member to execute the DSB reports,which could not ensure the WTO-conformity.In reality,neither negotiation,or compensation or suspension of concessions could ensure the failing party modificating its domestic law which is found inconsistent with a agreement by a panel or the appeal body in according with the recommendations and rulings.So that the mandatory legislation should be consistent with a covered agreement under Article 16.4<WTO agreement>is null.It is necessary to amend the article 19 and article 22 of DSU,in order to give the "ought to be" effectiveness of the article 16.4 of<WTO agreement>.Chapter five backs to the issue concerning China(mainland).After the accession to WTO,there are challenges to the domestic law in WTO dispute settlement.The chapter points out some misunderstandings hold by our central government and WTO exporters in China.The chapter contains a study of the cases China as the complaint,or respondent,or the third party by commenting the controversial assertions.Finally,the chapter concludes the suggestions about how to utilize the loophole of the WTO-conformity in WTO legal system.The conclusion chapter in general commence from the legal context of the article 16.4 of<WTO agreement>,ends in the conclusion that the article has been make null either by the distinction between the mandatory legislation and the discretionary legislation or by l defects in DSU.In order to ensure the legal enforce of the conformity of the domestic law of WTO Member to its obligations under WTO agreements,something should be done. |
