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WTO Obligations as Collective
Chios Carmody 1
Abstract
One view of obligations under the WTO Agreement is that they are bilateral, that is, they involve legal obligations between two countries. This is premised on the idea that the object of WTO obligations is ‘trade’. According to this view, the WTO Agreement can be considered a ‘bundle of bilateral relations’ and WTO obligations should be analysed pursuant to rules concerning bilateral obligations under the Vienna Convention on the Law of Treaties and the Articles on State Responsibility. This article takes a different position. It posits that WTO obligations are more appropriately regarded as collective because their principal object is the protection of collective expectations about the trade-related behaviour of governments. These form a common interest over and above the interests of WTO Member States individually. At the same time, while expectations may be the treaty’s primary concern, they are not its sole concern. The treaty gives some flexibility to governments to deal with situations actually encountered in the pattern of trade. These two functions – the protection of expectations and the adjustment to realities – combine to produce law in a third mode, something that can be termed a law of interdependence. This is the tendency of the WTO Agreement to promote interaction among producers and consumers in different countries, and thereby to spin an indissoluble web of economic relations that goes beyond the interests of WTO Members individually. For this reason, the WTO Agreement can be thought of as a collective undertaking and WTO obligations are more appropriately analysed under VCLT and ASR rules on collective obligations.
1 Associate Professor, Faculty of Law, University of Western Ontario, London, Ontario, Canada. I would like to thank Arwel Davies, Francine Mackenzie, Peter Gerhart, Frieder Roessler, Cherise Valles, and Petina Gappah for their comments on an earlier draft, and Joost Pauwelyn for his review of this article during the editorial process. I would also like to thank Dean Ian Holloway of the University of Western Ontario Faculty of Law for providing support to present the ideas contained in this article at several symposia, and Peter Kucherepa, Janice Ho, and Marianne Welch for their research assistance. Any mistakes remain wholly my own.
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