The Place of the WTO and its Law in the International Legal Order

Abstract

I am particularly honoured by your invitation to this Second Biennial Conference of the European Society of International Law. Indeed, I am both honoured and pleased, not only because I am in Paris, but above all because I support the ESIL project, one of the objectives of which is to develop a deeper understanding of trade law and to promote closer cooperation among all those working in the field of international law. Admittedly, I have only distant memories of the Hague Academy of International Law where I once worked on estoppel, but the general theme of this conference – International Law: Do We Need It? – convinced me that there was room, this evening, for a non-specialist. It is in that capacity that I will be speaking to you, in the hope that I can contribute the views of a practitioner on the role and place of WTO law within the international legal order. In doing so, I am seeking to establish a constructive dialogue between doctrine and practice with the aim of improving normative and institutional coherence within the international legal order. Trade is to be found at the origin of entire segments of public international law, and it accounts for one of its main sources: the treaty. Indeed, one of the first international legal instruments to leave a trace in history was the commercial treaty between Amenophis IV and the King of Alasia (Cyprus) in the 14th century BC. This treaty exempted Cypriot traders from customs duty in exchange for the importation of a certain quantity of copper and wood. Nothing has fundamentally changed since then: at the beginning of the 21st century we still have bilateral trade agreements. But they now have to be reported to the WTO, so that they may be checked for consistency with international trade rules. The international legal order, on the other hand, has evolved dramatically. The great empires have disappeared into the annals of history. Philippe le Bel and Jean Bodin’s jurists progressively conceptualized the notion of sovereignty; the treaties of Westphalia ushered in a society defined by the pre-eminence of sovereign states, the 1815 Congress of Vienna laid the foundations of multilateralism, and the 19th century saw the first international organizations come to light. With the creation of the League of Nations, followed by the United Nations system and, finally, with the disintegration of the Eastern Bloc, the 20th century witnessed the evolution from traditional international law between states towards a contemporary and universal international law open to new players, including international organizations and non-governmental organizations. Thus, the international legal order has experienced a number of upheavals. But its evolution has been neither linear nor homogeneous – which is why international society still bears the marks of several historical stages in the process. As a metaphorical illustration, let us take the three physical states of matter: gas, liquids and, finally, solids. Today’s international legal order is simultaneously composed of these three states. Gas is the coexistence of particles devoid of any hierarchical differentiation: the Westphalian order made up of sovereign states organized according to an essentially ‘horizontal’ logic with a decentralized responsibility mechanism. The solid state is reflected in the European Union, the perfect example of an international integration organization which produces rules that it interprets ‘autonomously’ and whose primacy and direct applicability is guaranteed through a system of judicial remedy. The judicialization of responsibility of Member States for violations of Community law is a cornerstone of this integrated legal order. Between the gaseous state and the solid state, there remains the liquid state. It is to this category that the World Trade Organization belongs. Neither entirely vertical nor entirely horizontal in essence, resembling an organization for intergovernmental cooperation in certain respects while being closer to an international integration organization in others, the WTO represents a unique legal order or system of law. At the risk of oversimplification, in fact, I will draw no distinction between a system of law, a legal system and a legal order. The reason why the international legal order exists in several physical states is that it is evolving; and the WTO is both a product and a vehicle of that evolution. Indeed, the WTO is an international organization that brings together two concepts of international law. Leaving aside one or two specificities, it is a permanent negotiating forum between sovereign states and is therefore a cooperation organization akin to international conferences traditional international law. But it a which it an integration in contemporary international law. In the it a the WTO a legal order. we take up Jean of rules of law a system and a society or we that there within the international legal order, a WTO legal order. The WTO system has two rules and But the that it is not that it is or the two that I will be in an to this legal system into the international legal order and, it in with the other legal us with the first and the WTO a unique legal system within the international legal order. The WTO is an international This may and it to that This to a legal has its The which was by the WTO in was a that into in and was to with the treaty the International Trade Organization that treaty into the for a a an in in not for any institutional Thus, the not have but a which the of the an international organization in the of the and therefore a international legal the only through its and, for its with the support of the for the International Trade Organization a for the Thus, it was with the that a international organization was according to the by the International Law in its on the responsibility of international organization by a treaty or other by international law and its international legal In order to any the the WTO states in that the Organization have legal The of this The states that the WTO and for the of its Thus, its legal an international which it to at the international and an which it to for the of its and, among other to its permanent As with all international the of the WTO by the of But its which is for in its the WTO has Thus, the main of this of international organization is that it the WTO to have its which is in a within the by its and to with other international As a international the WTO now an integrated and legal it produces a of legal rules up a system and a of legal first of The WTO is a treaty of by of of of practice and – is the – have been into the new WTO treaty. WTO rules it is that the WTO and the WTO not have any general to the WTO to that to and in that they a of The system is no on the of a certain which the to the of that reflected the of the states The WTO not in the to the by public international law – it produces legal rules an integrated Indeed, the WTO integrated in a which an that is to be number of this fact, in which states that the trade of the the WTO and on all This is why they to the the In the – the which in the first that there was a between the of the WTO treaty since they of of or whose place in several the that with all of the WTO which be and and Thus, the WTO treaty is in a which has an legal WTO law a its In United States – the the of a legal order and to that this order was by its on by an place in a treaty the of which in on the of the may be a since the of have an on the of The of no only of WTO law, but is still Leaving that I that the WTO rules above all the of its since to is in the of the In other they a new legal order defined this integrated legal system is not there is a of in international law and the rules of its treaties therefore be in with the of international law. Thus, the WTO legal order the sovereign of states, international and the to not to the rules of of which the for The WTO respects general international law, while at the it to the of international In the international legal order, the WTO has its unique system of law. Leaving aside the on the of international law, it is that WTO law is a of international law in I this with two two of general international law which the WTO has to in its and on which it has a the sovereign of states and the to The sovereign of states between states of and This is at the international organizations have a the WTO is in that the of its a of law, in all of its – from the which at once two to the which the not to of the and of the according to the and by it is that this of is for a certain in the it all states, in international to views and to on an The of is reflected in the rules of the in the of the of it can be found in the and the It the of which is at the of the negotiating mechanism. Indeed, by the the in is a At the international all States – and and – a of which can be that will a trade to from the law of the to of States have an of and But these rules be – which is why the WTO and to establish can only between it to of the certain trade and to to by the can in and This from the for the was made in with the to the of and states that not for made by in trade to or and other to the trade of there is the which for the of a system of that the to to the an to the to among in no with the sovereign of states – on the in the of where is an to of and this of rules to the of states is a of will the of The WTO, on the of sovereign of states. But this not that it is of the of that the of trade in the of traditional international law. me with to the of states, in only sovereign states This is in the traditional international organizations made up of states It is that the WTO remains an once it has been to to the evolution of international society and the of new may be so that has been to the WTO, and has been to an Member its to the of the European Community a WTO Member is In the the in for the European Community to a With the creation of the WTO, this practice was The treaty that the number of of the European and Member States in no the number of Member is new is above all the of the Community its Member in this is the of – a which the WTO interprets in a of the the WTO that may for and cooperation with non-governmental organizations with to those of the has been no to but the in the and of between the WTO and the new rules have the for a of towards the This not that they into the negotiating the WTO remains an negotiating the to the they have been a role in the through since the of the in United States – It is in to the of the WTO while an open to the that This to that the WTO in the general in is in the state, while the – – that the WTO, in the role of is to within the international legal order. Thus, the WTO has a vehicle in the evolution of international law towards its contemporary and is a in the of international society into an international us to example of the WTO general international law while it to the of its legal the of the to by This is a that at the of general international law and is in the United Nations the the on the of which that international by in a that international and and not Thus, they the international the states that was to through and of international the In this the creation of a system was a of both through law and through The of the of the to by with to that is a of international the main of in traditional international law, is It has now been that states for any of but the of responsibility and, above its to the and of any legal of the is its I to it of an integration of the of the International Law on of States for which an to the WTO is a or the can general international law on the to WTO law – that its legal system in the of an of international still by its in the of it was of a the WTO system a new which the of and At the the to the of It is a that is to it according to the for is made by and is to of the where a has been the or a of which only of law. This the essentially legal of the WTO is for all WTO Member may the of a by In other that Member to WTO law. to may in other international for example the International of all WTO by the and of the for all to the WTO agreements. In order to of the that the the to the of the system the Thus, the of all to WTO rules has been the of a institutional the and is to a of rules and in the In other it is an integrated and in of this system is the of legal and in which the of a of WTO Member can WTO law or not it has a direct and – in the so to of the of states This which to the was by the in – it that the United States to the European in the not In other any state may on the of a that Member is not with its WTO law. is to that the it is is followed by the by the and the of WTO to and to up on the by the of the of the the not the that so may in the of trade can we from all of these of they the of a certain that is at the WTO, with an of international The is essentially to for the a of the of a society into a It is no the of the that but the Indeed, of the law that to the is in an of the of all of the Member states, which all to that they have been In other responsibility is by an it is the of the may But is the of international responsibility by the is that sovereign states a certain the of the of it to the of a we to law in its traditional since the in the state that has the to its to The by the state which is within the of the treaty and to to on the product of international law in its traditional the of state to take the law into its Thus, there is a of or a between the decentralized responsibility of traditional international law and the of the of The WTO is one of the to have in by the states by on the of In the I the of to all and the WTO is a since the that the is to remains The the to a the remains to the Thus, WTO law is a of legal rules up a system and a As the WTO an integrated and legal order. together traditional international law, which it and contemporary international law, which it is to the WTO has a of the international legal order a legal But WTO law to the legal of other international organizations within the international legal This me to the of which will the between the legal system of the WTO and the legal of other international organizations. The and of the WTO on it to of other legal and on the and of its with other international organizations. In order to the place and the role of the legal system in the international legal order, I will the and other legal including by other international organizations. I will first this from a normative of and from an institutional I will that the WTO, from being it is to its and the of other international organizations. In this the WTO in the of international coherence and the international legal order. The WTO, its treaty and the of any between WTO and those in other WTO not or other international In fact, the and now the WTO, that trade is not the only that can The WTO to objectives other the responsibility of other international organizations. has to these so to with the to they that in me a of system with and in other and will why I that the WTO has been in of international The WTO is of a it that trade and trade The of the WTO is that trade and to of and at the the and now the WTO, of to these The – but still in – of that a Member from aside a Member that other those of trade This can for a Member has made in other on an an may to The by WTO was to a new of the WTO that the place of trade in the of and the that to be between all is this within the WTO legal and the WTO treaty was and a In the first WTO an – the that the a of treaty in the Vienna on the Law of I am this to international legal The first that this general on treaty the of a of or general international law. It was to so may neither the nor the have the Vienna on the made its first now on the of the between the WTO and the international legal is not to be in from public international that to of the Vienna of treaties to be in and in the of the and the that the to take of the for of the This to a that in the and a in of In on the and of the Vienna the have since to the of the WTO treaty and to I have been that no other international system is so to the Vienna In this on the of the Vienna is a that the WTO to being integrated into the international legal order The between the WTO and other of international was the that in the WTO, – to and so – not to be be according to the of the of In this has that be and so that they have no or The the of WTO in the In the WTO, to we a a of a a is for any a new and is to be an will have to the by a – and the this the it will be to the the of the will the entire the of the to a – is it a or on it a it a and, finally, the trade of the a a or is there is an to the is in a to the of the has that a with a between WTO and a to other trade be has that the by the of of is in an of the general or an of the the I the of and the essentially the one of and a of between the of a Member to an and the of the other The of the of is not and the the and the of the at and the up But not or with between and the to of other legal the has a of or between of or between of and I hope it is now that WTO trade to will be to WTO so they not In other the WTO the of and other legal and to the of of its coherence within the international legal order. of the WTO is that can at the they and in the between and the European the importation of the that was to its since it was on and in other and no risk by the of the WTO that its integration into the international legal order, is the legal and it to international and in other the and states that on in the International of and the International to be with the while and not by any in the or the that they have a certain in a of WTO international The for states to or international the WTO to in other international which they will in the of the I but let me to the of the the WTO to that of the to an of the it is not has into a general of law, the to an that the of the WTO in of the and of a of and international In the – this was to that be in the and that it I and to the and of WTO It made to the to WTO – and the – in an into the of the of the WTO at the of the at the of in This the to contemporary treaties that and to that these be in the WTO so to international coherence with to I therefore with a of that in general of public international law in its of the WTO the has that the WTO is within the of the international legal order. The WTO take into other of international law. a WTO on will WTO on In so it coherence between of or legal order. I that in with the to the WTO the and of other international organizations. In the WTO is of the of other of and of the that it is not in the international between the WTO and other international organizations of coherence within the international legal order. that the WTO is an international organization with legal it has up an of and with other on the international The the coherence within the international legal order, the the international us at the between the WTO and other international organizations. for WTO on coherence with an to the exists a of cooperation on and with several international organizations. the of is to on we a new which brings together several organizations and to in the of trade We have cooperation with other international organizations. in the of we now have a – the and Trade – the WTO, World and Organization World Organization and the World Organization for international organizations have or in WTO The WTO an in international organizations. the of cooperation and coherence between the of the WTO and that of other international organizations to in a The WTO working with international organizations in from to As I in I am a of international I not to that is a general of international But I that international cooperation is one of the United in of the I that towards international coherence the only to the evolution of international and of international legal But international coherence is to the of the WTO and the of trade rules. The in of trade a role in and but it is not a for all the of neither is it to nor in can it be it is in a and and a Trade can only be and it is by which at the capacity or the of of the by the for a for public and so This is international legal of these with the other treaty of WTO international coherence will only in the of the WTO not or to any other states to all of these in a I that the WTO and But this is not and the I to I in the for I am a This brings me to States with – – of international treaties so the for with the and mechanism. me one example and will the in the coherence of international legal order. The – was with the In by and the of through the of new the of its for and to and that The those being to its WTO that the and for its on the in with the United Nations on the Law of the to the WTO by the of and the to the International on the Law of the The the WTO the of to from the of of on the of to The have or not was to and to of a In a it is that both have or and the with an that a WTO in its to or not may from the of the on the It that the two may on the or on the of the law. in that the an to both and the But in the of a the WTO have that of of any between the and in the of any international to these two may In of the of the and WTO it is that a WTO because – and – has been for a or both at the it is that the WTO any other process. This is where of the of international legal order the WTO, through its can that it take into the of other legal still the that it will be for the WTO to the the of between trade and of other legal Indeed, at a has an on the can be to the WTO system and The WTO will have to the trade can in the of the In the of WTO the WTO may in be on the hierarchical between two of Indeed, a WTO Member the to a trade to a in it is the WTO will and the to with an can a WTO for trade in support of its of the WTO for public a Member to an International Organization a state for of it is the WTO will on the legal and of an on international trade and its to trade rules. But I there is no reason to the WTO with the to the coherence between from legal The of coherence of international legal system is by the of the WTO and in its mechanism. This the between the and the traditional decentralized system of still in several legal I not that the in of the WTO to be but I that the WTO system The to the I have to I in the of other legal so to the of the WTO in the international legal order. This not all because we with several legal for which still be We to the of international law and the of international legal legal and legal will to and coherence will on on the and of the have been including a to the International of in of for order has been made by the the of and international law. The International Law has in that me now Today’s international legal order will be to only to the that the legal through is no to this and the WTO is of its The WTO has evolved from the States to the to the of the international system and it with a international the This international organization is now up and it produces of law The legal and of those by WTO for but the WTO normative including a forum for permanent and its but open the of its legal order. In the WTO of its international legal and is now with other international organizations. But there is In up a system in other to be the WTO not only to other legal but it in other and the coherence of legal order. In this the WTO is an a the international legal order. This in the place and role of the WTO and its legal order in the international legal a for international towards international coherence and for which I is we the we in to be that or