The concept of "WTO law": The Debate Continues

Scientific Doctrine ◽

Wto Agreements

The phenomenon of the law of the World Trade Organization continues to be the starting point for the subject of study by international lawyers. The study of the provisions of the "package of WTO agreements", the practices of arbitration groups and the Appeals Body, the reports of the International Law Commission on fragmentation in international law and the scientific doctrine of various countries prove that "WTO law" is a "special treaty regime" existing in the international law framework. Its isolation is out of the discussion at least because the application of the norms of "WTO law" is carried out in accordance with the provisions of the Vienna Convention on the Law of Treaties of 1969. This article is an attempt to present the author's point of view on the existing problem.

Case Analysis: The Gabčíkovo-Nagymaros Case: The Law of Treaties

Leiden Journal of International Law ◽

10.1017/s0922156598000247 ◽

1998 ◽

Vol 11 (2) ◽

pp. 321-344 ◽

Cited By ~ 2

Author(s):

Malgosia Fitzmaurice

Keyword(s):

International Law ◽

Legal Status ◽

Case Analysis ◽

Vienna Convention ◽

Fundamental Change ◽

Unilateral Termination ◽

The Subject ◽

The Law ◽

The subject-matter of this article are the issues of treaty law as expounded in the Judgment in the Gabčíkovo-Nagymaros case. The following problems are discussed: unilateral suspension and abandonment of obligations deriving from the binding treaty; the principle of fundamental change of circumstances; unilateral termination of a treaty; applicability of the 1969 Vienna Convention on the Law of Treaties in this case; legal status of so-called ‘provisional solution’; impossibility of performance and material breach of treaty; the application of the principle of ‘approximate application’; and the principle pacta sunt servanda. The issues arc discussed at the background of the Drafts of the International Law Commission.

Treaty-Making Capacity of Components of Federal States from the Perspective of the Works of the UN International Law Commission

Polish Review of International and European Law ◽

10.21697/priel.2016.5.2.01 ◽

2018 ◽

Vol 5 (2) ◽

pp. 9

Author(s):

Karol Karski ◽

Tomasz Kamiński

Keyword(s):

International Law ◽

Federal State ◽

Vienna Convention ◽

International Treaties ◽

Federal States ◽

The Subject ◽

The Law ◽

Formed Part ◽

The submitted paper concerns the treaty-making capacity of components of federal (non-unitary) states. As the division of powers in respect to the conclusion of international treaties between a federal state and its components is based on the provisions of internal federal law, the authors decided to start the consideration of the topic with the presentation of selected appropriate internal law regulations of federal states. Although the study concentrates on an analysis of Swiss and German constitutional rules on the subject, the provisions of i.a. Belgian, US and Canadian law are also commented upon. Therefore it apparently seems to be an important legal question.The treaty-making capacity of components of federal (non-unitary) states was comprehensively discussed during the International Law Commission preparatory works on the regulation on the law of treaties. The provisions dedicated to that issue formed part of the reports prepared by each of the ILC Special Rapporteurs on the subject. The paper presents the draft propositions submitted by them, the views of ILC members, and responses received from states.The final draft of ILC articles on the law of treaties contained a paragraph concerning the issue at stake (than art. 5 § 2 of the draft) stipulating that member states of a federal union may possess such capacity only if such capacity is admitted by the federal constitution and within the scope defined therein. Nevertheless, this issue was omitted in the 1969 Vienna Convention on Law of Treaties (VCLT). Art. 6 of the VCLT on the capacity of States to conclude treaties does not mention the rights of components of federal states. It consists of one paragraph simply stating that every State possesses the capacity to conclude treaties. And the term ‘state’ for the purposes of that regulation possesses the same meaning as i.a. in the Charter of the United Nations, that is a State for the purposes of international law, or a state in the international meaning of that term.This does not mean however that territorial units forming a part of a federal state cannot conclude international agreements. But, this issue depends both on the provisions of internal law of the given state and on the practice of the states recognising the potential rights of the components of the federal (non-unitary) states in respect to conclusion of the treaties.

The Legal Significance of Expert Treaty Bodies Pronouncements for the Purpose of the Interpretation of Treaties

International Community Law Review ◽

10.1163/18719732-12341420 ◽

2020 ◽

Vol 22 (1) ◽

pp. 33-60

Author(s):

Danae Azaria

Keyword(s):

International Law ◽

Legal System ◽

Vienna Convention ◽

International Court Of Justice ◽

International Court ◽

Rule Set ◽

The Law ◽

International Law Commission

Abstract Although it is widely accepted that the pronouncements of expert treaty bodies are not binding, this does not mean that they are deprived of any effect in law. This study focuses on their legal effects vis-à-vis the interpretation of treaties, and explores how the International Court of Justice and the International Law Commission have dealt with the pronouncements of expert treaty bodies in relation to the interpretation of treaties. The tale about the Court’s and the Commission’s approaches in this respect demonstrates the profound belief of both the Court and the Commission that international law is a legal system, which calls for reliance on the pronouncements of expert treaty bodies as integral actors within the legal system with some ‘authority’ concerning the determination of the law (within their mandate). This does not mean that the Court and the Commission support a ‘blind reliance’ on such pronouncements; rather the quality of each pronouncement is a criterion for relying on it. The reasoning of the Court and (and implicitly of) the Commission also shows that they consider that international law as a legal system, which necessitates ‘legal consistency’. This in turn suggests that the reliance on pronouncements of expert treaty bodies, which are mandated to supervise the application (and interpretation) of particular treaties, may constitute an exercise of ‘systemic integration’ which exceeds the confines of the rule set forth in Article 31(3)(c) of the Vienna Convention on the Law of Treaties.

Debating the Ouroboros of International Law: The Drafting History of Article 31(3)(c)

International Community Law Review ◽

10.1163/187197407x196721 ◽

2007 ◽

Vol 9 (1) ◽

pp. 1-31 ◽

Cited By ~ 4

Author(s):

Panos Merkouris

Keyword(s):

International Law ◽

Present Status ◽

Vienna Convention ◽

History Of ◽

The Law ◽

Droit International ◽

AbstractThe Diversification and expansion of International Law has sparked a series of debates on the present status and future of International Law; even more so, since the ILC decided to tackle the issue of fragmentation. One of the areas of research and controversy has been Article 31(3)(c) of the Vienna Convention on the Law of Treaties which, arguably, enshrines the principle of systemic integration. The aim of this article is to explore the evolution of Article 31(3)(c) from its first inception by the forefathers of international law up to the finalization of the text of the Vienna Convention on the Law of Treaties. By mapping the critical arguments in the three main fora of debate (i.e the Institut de Droit International, the International Law Commission and the Vienna Conference on the Law of treaties) what arises is a series of conclusions with respect to certain aspects of Article 31(3)(c) as well as certain recurring themes in the nature and progress of the discussions. All of the above will show that the drafting history of Article 31(3)(c) seems to suggest that the relevant provision was meant to serve a purpose expressed more concisely by the symbol of Ouroboros rather than of a mere "master-key" to the house of International Law.

‘Codification by Interpretation’: The International Law Commission as an Interpreter of International Law

European Journal of International Law ◽

10.1093/ejil/chaa016 ◽

2020 ◽

Vol 31 (1) ◽

pp. 171-200

Author(s):

Danae Azaria

Keyword(s):

International Law ◽

Focal Point ◽

Vienna Convention ◽

Customary International Law ◽

Treaty Interpretation ◽

Per Se ◽

The Law ◽

Abstract This article argues that the International Law Commission (ILC) interprets international law. In recent years, in documents intended to remain non-binding, the Commission has made interpretative pronouncements about a treaty in force, the Vienna Convention on the Law of Treaties, and customary international law reflected therein. This development is called the ‘codification by interpretation’ paradigm in this article. This article argues that interpretation falls within the ILC’s function, and it analyses the effects of the Commission’s interpretative pronouncements. It explains that the ILC’s interpretative pronouncements are not per se binding or authentic. However, they may trigger an interpretative dialogue with states. The ILC’s interpretative pronouncements may constitute a focal point for coordination among states, a subsidiary means for determining rules of law and a supplementary means of (treaty) interpretation. The aim of the ILC’s ‘codification-by-interpretation’ paradigm in the four topics considered in this article is to introduce clarity and predictability into secondary rules on the law of treaties, thus ensuring the clarity and predictability of primary treaty rules across all fields of international law. The ILC endeavours to convince states to use international law as a medium by which they regulate their affairs.

Down the Danube: The Vienna Convention on the Law of Treaties and the Case Concerning the GabcïKovo-Nagymaros Project

International and Comparative Law Quarterly ◽

10.1017/s0020589300062552 ◽

1998 ◽

Vol 47 (4) ◽

pp. 837-854 ◽

Cited By ~ 2

Author(s):

Daniel Reichert-Facilides

Keyword(s):

International Law ◽

Practical Importance ◽

Vienna Convention ◽

International Court Of Justice ◽

Customary International Law ◽

National Courts ◽

International Court ◽

Scope Of Application ◽

The Subject ◽

The Law

Over the last 30 years, the Vienna Convention on the Law of Treaties1 has emerged as one of the most influential instruments of modern international law. The Convention, which was adopted at the UN Conference on the Law of Treaties on 23 May 1969, entered into force on 27 January 1980 and has meanwhile been ratified by more than 80 States.2 Yet, as it does not operate retroactively,3 the scope of application is growing only slowly and its practical importance stems, rather, from the fact that the Convention is widely considered a restatement of customary international law. As early as 1971 the International Court of Justice referred to the articles governing termination for breach of treaty as a codification of the existing law on the subject.4 Since then both international tribunals and national courts have more and more habitually relied on the material provisions of the Convention to ascertain traditional rules of the law of treaties.5

The Declaration of the Rights and Duties of Nations Adopted by the American Institute of International Law

The American Journal of International Law ◽

10.2307/2187520 ◽

1916 ◽

Vol 10 (2) ◽

pp. 211-221 ◽

Cited By ~ 2

Author(s):

Elihu Root

Keyword(s):

International Law ◽

Foreign Relations ◽

American Institute ◽

Foreign Service ◽

The People ◽

Law Of Nations ◽

The World ◽

The Subject ◽

The Law ◽

International Events

With this meeting we finish the first decade of this Society. How great is the change of conditions in the field of international law during that period. Ten years ago all the governments of the world professed unqualified respect and obedience to the law of nations, and a very small number of persons not directly connected with government knew or cared anything about it. In this country at least international law was regarded as a rather antiquated branch of useless learning, diplomacy as a foolish mystery, and the foreign service as a superfluous expense. Now that governments have violated and flouted the law in many ways and with appalling consequences, the people of this country at least have begun to realize that observance of the law has a real and practical relation to the peace and honor of their own country and their own prosperity. They are beginning to take an interest in the subject, to discuss it in the newspapers, to inquire how observance of the law may be enforced. There appears a dawning consciousness that a democracy which undertakes to control its own foreign relations ought to know something about the subject. If we had not established this Society ten years ago to study and discuss and spread a knowledge of international law it would surely be demanded now, and we may be certain that our annual public discussions and the publication of the admirable Journal which we have always maintained, with its definite and certain informa-lion upon international events, its interesting and well informed discussion of international topics, and its supplements, with their wealth of authentic copies of international documents, have contributed materially towards fitting the people of our country to deal with the international situations which are before them.

The International Law Commission's Draft Articles on the Effects of Armed Conflicts on Treaties: Evaluating the Applicability of Impossibility of Performance and Fundamental Change

Asian Journal of International Law ◽

10.1017/s204425131200032x ◽

2013 ◽

Vol 3 (1) ◽

pp. 51-76

Author(s):

Benny TAN Zhi Peng

Keyword(s):

International Law ◽

Armed Conflicts ◽

Controversial Issue ◽

Vienna Convention ◽

Fundamental Change ◽

Insufficient Attention ◽

The Law ◽

The International Law Commission recently completed its work on the controversial issue of the effects of armed conflicts on treaties, culminating in the adoption of a set of eighteen draft articles and an annex. The Commission's efforts are nothing short of commendable, but this article argues that insufficient attention has been paid to the role of supervening impossibility of performance and fundamental change of circumstances in determining the effects of armed conflicts on treaties. Although both doctrines may in fact appropriately apply in the context of armed conflicts, the mere referencing of them in the adopted draft articles gives rise to several problems. In particular, the two doctrines were codified by the 1969 Vienna Convention on the Law of Treaties without their application to armed conflicts in mind. Some changes to the draft articles are proposed to address these difficulties.

The Law on State Responsibility and the World Trade Organization

The Journal of World Investment & Trade ◽

10.1163/22119000-12340228 ◽

2021 ◽

Vol 22 (5-6) ◽

pp. 759-803

Author(s):

Anna Ventouratou

Keyword(s):

World Trade Organization ◽

International Law ◽

World Trade ◽

Dispute Settlement ◽

State Responsibility ◽

Vienna Convention ◽

The World ◽

The Law

Abstract This paper examines the role of general international law in the World Trade Organization (WTO) regime, using the rules on state responsibility as a case study. It identifies and discusses instances in WTO case law where such rules were applied directly or were taken into consideration in interpreting relevant WTO provisions. The analysis demonstrates that direct application of general international law for the determination of indispensable matters not regulated by the WTO Agreements is part of the inherent powers of WTO adjudicative bodies. Moreover, under Article 3(2) Dispute Settlement Understanding and Article 31(3)(c) Vienna Convention on the Law of Treaties, WTO adjudicative bodies have an obligation to take into account general international law in interpreting relevant WTO provisions. The paper delineates the methodology for assessing the interaction between general international law and WTO law and highlights the importance of adhering to this methodology to provide clarity and legal certainty regarding the scope and content of WTO obligations.

More on the Depositary of International Treaties

The American Journal of International Law ◽

10.2307/2198920 ◽

1970 ◽

Vol 64 (5) ◽

pp. 838-852 ◽

Cited By ~ 7

Author(s):

Shabtai Rosenne

Keyword(s):

United Nations ◽

International Law ◽

Previous Article ◽

Vienna Convention ◽

International Treaties ◽

The United Nations ◽

The Law ◽

Law Commission ◽

Made In

The purpose of this article is to bring up to date the present writer’s previous article on “The Depositary of International Treaties” published in this Journal, in the light of the deliberations of the United Nations Conference on the Law of Treaties in 1968 and 1969 and the changes there made in the texts. The relevant provisions now appear as Articles 76, 77 and 78 of the so-called Vienna Convention on the Law of Treaties, corresponding to Articles 71, 72 and 73 of the draft articles on the law of treaties of the International Law Commission.