Ole Kr. Fauchald 04/19/23 1

For what purposes do we use treaties?

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Purposes of treaties Illustrate the development from contractual

towards law making treaties1. Prevent or solve bilateral disputes – boundary

treaties2. Bilateral or multilateral cooperation on specific

issues – common infrastructure projects3. Bilateral or multilateral cooperation on general

issues – postal services, international transportation, facilitation of economic activities

4. Solve common problems – environmental, weapons of mass destruction

5. Codify rules of customary international law – ”secondary” rules

6. Establish common minimum standards of treatment – human rights

7. Harmonisation of domestic policies – intellectual property rights

8. Set up institutional structures – ”constitutional” rules

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The development of treaty law The increase in issues subject to treaty law

Inherently international issues vs. inherently domestic issues – ”globalisation”

Establishment and role of international institutions A systematic overview of topics – treaty collection

The nature of treaty obligations From obligations to cooperate and institutional rules to

obligations of conduct The use of soft law instruments Ability to comply vs. willingness to comply

The nature of enforcement mechanisms From general multilateral discussions to international

tribunals From reciprocal measures to multilateral sanctions

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The need to coordinate treaties Avoid legal conflicts

When is there a legal conflict between treaties?

Prevent overlap Kinds of overlap

– Overlapping subject areas– Global vs. regional treaties

Avoid situations where treaties undermine the effectiveness of other treaties

”Forum shopping” Making treaties ”mutually supportive”

The search for win-win opportunities

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Strategies to coordinate treaties Institutional coordination

Why do we not create institutions that contribute to improved coordination?

The domestic vs. the international level Procedural measures

Transparency Impact assessments

During the negotiation phase Starting point – domestic coordination Depends on existence of multilateral institutions

After establishment Transfer to the international level Institutional autonomy – secretariats, implementation

and compliance mechanisms, tribunals

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How to solve conflicts The use of ”savings clauses”

Preambular vs. provision in treaty General vs. prospective / subject specific

Lex superior – primary rule Vertical elements in treaty law UN Charter – how far does it extend? Codification of jus cogens – VCLT Art. 53, Draft Articles on

State Responsibility Art. 40-1 Law making vs. contractual treaties – the concept of erga

omnes – Draft Articles Art. 48 Lex posterior – subsidiary rule

Art. 30 of VCLT Protocols, annexes and amendments

Lex specialis – subsidiary rule ”Primary” and ”secondary” rules, Draft Articles Art. 55 Area of application vs. legal consequences

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Case study – int’l trade law 1 Regulatory structure of the WTO

International trade in goods– Multilateral regulation attempted in the 1920s-30s– Havana Charter and GATT

International trade in services– Link to goods, but major differences– Multilateral regulation in WTO

International investment– Link to goods and services– Limited regulation in WTO– Multilateral agreement attempted in OECD

Intellectual property rights– Made part of WTO– Multilateral regulation dating from 1880s – WIPO

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Case study – int’l trade law 2 Institutional structure

Main bodies of the WTO– Ministerial Council– General Council– Councils for goods, services and IPR– Secretary General

Decision-making– Tradition of consensus, but majority vote is available– Amendments – rounds of negotiation– Interpretation– Waivers– Use of ”soft law”

Implementation and dispute settlement– Notifications, discussions in Councils, Trade Policy

Review Mechanism, dispute settlement with possibility of appeal

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Case study – int’l trade law 3 The nature of WTO – from contractual to law-

making Initial focus on tariffs Maintain value of tariff concessions – need for

regulating other trade restrictions Trade facilitation regardless of tariff concessions Rounds of negotiations Structure of negotiations Essential factors of development

– Number and nature of members– Dispute settlement– Organisational structure– Introduction of the ”trade and …” issues– Adding services and intellectual property rights– Competition with bilateral and regional agreements

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Case study – int’l trade law 4 Vertical coordination – the

relationship to bilateral and regional trade instruments Regionalism vs. global rules Progressive development of

international trade law The most-favoured-nation obligations –

the assessment of bilateral and regional treaties

Forum shopping – e.g. competition between dispute settlement mechanisms

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Case study – int’l trade law 5

Horisontal coordination – the need for coordination The ”trade and …” issues – environment,

labour, human rights– Conflicts / undermining / mutual supportiveness– Inherent conflict between developed and

developing countries?– Race to the bottom?

Institutional competition– Trade and intellectual property rights

”Reference” to specialised institutions– Harmonisation of product requirements etc.

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Case study – int’l trade law 6 Coordination

At the inter-institutional level– WTO and the UN– Formal cooperation – inter-institutional agreements– Observer status– Informal cooperation– ”Strong” vs. ”weak” institutions – WTO vs. MEAs

At the inter-country level– Constellation of countries– Different branches of government – informal

At the country level– Capacity to coordinate– Mechanisms for coordination– The role of the ministry of foreign affairs– Communication between permanent representations

and domestic institutions– Transparency

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Case study – int’l trade law 7 Specific issues related to dispute

settlement The use of the dispute settlement mechanism

– Effectiveness from the perspective of the claimant– Availability of alternative mechanisms– Elimination of political control in certain countries –

the US and the EU Jurisdictional issues

– ”Self-contained regime”?– Application of external rules– Interpretation of WTO rules in light of external rules

– Art. 31.3(c) of the VCLT– Relationship to the International Court of Justice