WTO Dispute Settlement Mechanism(2)/刘成伟(23)
Clearly, the safeguarding of the process and the results of negotiating reciprocal tariff concessions under Article II of the GATT is fundamental to the balance of rights and obligations to which all WTO Members subscribed. The availability of calling for a dispute settlement procedure for non-violations is a device meant to ensure the integrity of the GATT/WTO system in the face of ever more complex methods of circumventing explicit tariff bindings and the prohibitions on non-tariff trade restraint instruments. A peaceful society, domestic or international, relies on cooperation, fairness and mutual trust. Thus, such reliance must not be jeopardized by an isolated application of strict law. As is confirmed by a review below on the context of non-violation remedy.
（iv）Non-violation Claims in the Context of Principles of Customary International Law
With regard to this issue, the Panel in Korea-Government Procurement (DS163) rules as follows:9
“In our view, the non-violation remedy as it has developed in GATT/WTO jurisprudence should not be viewed in isolation from general principles of customary international law. As noted above, the basic premise is that Members should not take actions, even those consistent with the letter of the treaty, which might serve to undermine the reasonable expectations of negotiating partners. This has traditionally arisen in the context of actions which might undermine the value of negotiated tariff concessions. In our view, this is a further development of the principle of pacta sunt servanda in the context of Article XXIII:1(b) of the GATT 1947 and disputes that arose thereunder, and subsequently in the WTO Agreements, particularly in Article 26 of the DSU. The principle of pacta sunt servanda is expressed in Article 26 of the Vienna Convention in the following manner: ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith.’
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