Conflict of Norms in Public International Law How WTO Law Relates to other Rules of International Law doc

Unilateral acts of states and acts of internationalFrom ‘sources’of international law to ‘general’versus Treaty interpretation as a conflict-avoidance tool 244 Preliminary classifications

How WTO Law Relates to other Rules of International LawOne of the most prominent and urgent problems in internationalgovernance is how the different branches and norms of internationallaw interact, and what to do in the event of conflict With no single

‘international legislator’and a multitude of states, internationalorganisations and tribunals making and enforcing the law, theinternational legal system is decentralised This leads to a wide variety

of international norms, ranging from customary international lawand general principles of law, to multilateral and bilateral treaties ontrade, the environment, human rights, the law of the sea, etc.Pauwelyn provides a framework on how these different normsinteract, focusing on the relationship between the law of the WorldTrade Organization (WTO) and other rules of international law Healso examines the hierarchy of norms within the WTO treaty Hisrecurring theme is how to marry trade and non-trade rules, oreconomic and non-economic objectives, at the international level

j o o s t p a u w e l y n is Associate Professor of Law at Duke UniversitySchool of Law His areas of interest are public international law andthe law of the WTO He was previously Legal Affairs Officer for theWTO in Geneva (1996 2002)

Established in 1946, this series produces high quality scholarship in the fields of public and private international law and comparative law Although these are distinct legal sub-disciplines, developments since 1946 confirm their interrelation.

Comparative law is increasingly used as a tool in the making of law at national, regional and international levels Private international law is now often affected by international conventions, and the issues faced by classical conflicts rules are frequently dealt with by substantive harmonisation of law under international auspices Mixed international arbitrations, especially those involving state economic activity, raise mixed questions of public and private international law, while in many fields (such as the protection of human rights and democratic standards, investment guarantees and international criminal law) international and national systems interact National constitutional arrangements relating to ‘foreign affairs’, and to the implementation of international norms, are a focus of attention.

Professor Sir Robert Jennings edited the series from 1981 Following his retirement as General Editor, an editorial board has been created and Cambridge University Press has recommitted itself to the series, affirming its broad scope.

The Board welcomes works of a theoretical or interdisciplinary character, and those focusing on new approaches to international or comparative law or conflicts of law Studies of particular institutions or problems are equally welcome, as are translations of the best work published in other languages.

General Editors James Crawford SC FBA

Whewell Professor of International Law, Faculty of Law and Director, Lauterpacht Research Centre for International Law, University of Cambridge

John S Bell FBA

Professor of Law, Faculty of Law, University of Cambridge Editorial Board Professor Hilary Charlesworth University of Adelaide

Professor Lori Damrosch Columbia University Law School

Professor John Dugard Universiteit Leiden

Professor Mary-Ann Glendon Harvard Law School

Professor Christopher Greenwood London School of Economics

Professor David Johnston University of Edinburgh

Professor Hein K¨ otz Max-Planck-Institut, Hamburg

Professor Donald McRae University of Ottawa

Professor Onuma Yasuaki University of Tokyo

Professor Reinhard Zimmermann Universität Regensburg

Advisory Committee Professor D W Bowett QC

Judge Rosalyn Higgins QC Professor Sir Robert Jennings QC Professor J A Jolowicz QC Professor Sir Elihu Lauterpacht CBE QC Professor Kurt Lipstein

Judge Stephen Schwebel

A list of books in the series can be found at the end of this volume

International Law

How WTO Law Relates to other Rules of International Law

Joost Pauwelyn

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São PauloCambridge University Press

The Edinburgh Building, Cambridge  , United Kingdom

First published in print format

isbn-13 978-0-521-82488-0 hardback

isbn-13 978-0-511-06239-1 eBook (NetLibrary)

© Joost Pauwelyn 2003

2003

Information on this title: www.cambridge.org/9780521824880

This book is in copyright Subject to statutory exception and to the provision ofrelevant collective licensing agreements, no reproduction of any part may take placewithout the written permission of Cambridge University Press

isbn-10 0-511-06239-7 eBook (NetLibrary)

isbn-10 0-521-82488-5 hardback

Cambridge University Press has no responsibility for the persistence or accuracy of

s for external or third-party internet websites referred to in this book, and does notguarantee that any content on such websites is, or will remain, accurate or appropriate

Published in the United States of America by Cambridge University Press, New York

Preface pagexi

1 The topic and its importance: conflict of norms in

2 The case study: the law of the World Trade

WTO law as ‘just’another branch of public international

The WTO legal system is not a ‘closed legal circuit’35

The nature of WTO obligations: reciprocal or integral? 52

The continuing uncertainty as to the sources of

Are there any a priori hierarchies in international law? 94

vii

Unilateral acts of states and acts of international

From ‘sources’of international law to ‘general’versus

Treaty interpretation as a conflict-avoidance tool 244

Preliminary classifications for conflict resolution 275

7 Resolving ‘conf lict in the applicable law’ 327

8 Conflict of norms in WTO dispute settlement 440

Practical consequences of the approach suggested 472

A closer look at certain past disputes in the light of the

At heart, this book is inspired by a willingness to see more to life thanmoney Trade is a money-making exercise The statistics show that tradeliberalisation, the WTO’s leitmotif, does increase welfare The WTO is

‘good for you’ This cannot be, and has not been, stressed enough Even

if the WTO undoubtedly needs improvement, it would be disastrous toturn back the clock and revert to escalating protectionism Trade be-tween nations makes the world a better place It also makes it a saferplace But at the same time, trade is but an instrument to achieve noblergoals: the prevention of war; raising standards of living and thecreation of jobs, not just in the rich countries but also in the developingworld; political freedom and respect for human rights; social protectionand an equitable distribution of wealth; the fight against environmentaldegradation and the protection of public health; etc Given the diversity

of WTO members, these goals must, in the first place, be set by eachmember individually, preferably, of course, in co-operation with othermembers When genuinely pursued, that is, when not abused as a dis-guised restriction on trade, such goals must trump the instrument oftrade, even if they are not set out in the WTO treaty itself This should beparticularly so in case these goals have been defined in other, non-WTOrules of international law as between WTO members that have agreed tothose rules WTO law is not a secluded island but part of the territorialdomain of international law The WTO, important as it may be, mustthus be put in perspective For public international law at large, this ap-proach pleads for the unity of international law, not its fragmentation.However, to achieve this unitary view, rules must be developed on hownorms of international law interact This is what this study attempts todo

xi

I am much indebted to the supervisors of the thesis which is at theorigin of this book: Joseph H H Weiler, Jan Wouters and, particularly,Petros C Mavroidis, who has supported me enormously throughout theproduction of this work This is an opportunity also to thank those whonurtured my fascination for the law: Alan E Boyle, Ian Brownlie, William

J Davey and Cornelius Van der Merwe Thanks also to my former leagues at the WTO Legal Affairs and Appellate Body divisions Withoutthe support and motivation offered by Fanny, Luka and Marit, my wifeand two daughters, as well as my parents, this book would not have seenthe light of day

col-PCIJ cases

Chorzów Factory (Merits), PCIJ, Ser A, No 17 (1928) page 205, 448 Customs Regime between Germany and Austria, PCIJ, Ser A/B,

Delimitation of the Polish Czechoslovakian Frontier (Question of

Jaworzina), PCIJ, Advisory Opinion, Ser B, No 8 (1923) 257

Eastern Greenland, PCIJ, Ser A/B, No 53 (1933) 144

Electricity Company of Sofia and Bulgaria, PCIJ, Ser A/B,

Mavrommatis Palestine Concessions (Jurisdiction), PCIJ, Ser A,

Oscar Chinn, PCIJ, Ser A/B, No 63 (1934) 57, 277, 308 9

Polish Postal Service in Danzig, PCIJ, Ser B, No 11 (1925) 395 6

Polish Upper Silesia case, PCIJ, Ser A, No 6 (1925) 116

Serbian Loans Issued in France, PCIJ, Ser A, Nos 20/21 (1929) 414

xiii

Upper Silesia Minorities, PCIJ, Ser A, No 15 (1928) 415

Wimbledon, PCIJ, Ser A, No 1 (1923) 57, 103

ICJ cases

Admissions case (Conditions for Admission of a State to

Membership in the United Nations), Advisory Opinion,

Aegean Sea Continental Shelf (Greece v Turkey), ICJ Reports

Ambatielos case (Preliminary Objection), ICJ Reports 1952, 28 397

Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal), ICJ Reports

Barcelona Traction, ICJ Reports 1970, 3 61, 62

Border and Transborder Armed Actions (Nicaragua v Honduras), ICJ

Certain Expenses of the United Nations, Advisory Opinion, ICJ

Continental Shelf (Tunisia v Libya), ICJ Reports 1982, 18 126, 262, 468

Corfu Channel (Merits), ICJ Reports 1949, 4 248

East Timor case (Portugal v Australia), ICJ Reports 1995, 90 61, 62,

425 6, 454

Effect of Awards of Compensation Made by the UN Administrative

Tribunal, Advisory Opinion, ICJ Reports 1954, 47 110, 112

Elettronica Sicula SpA (ELSI), ICJ Reports 1989, 42 206

Fisheries Jurisdiction (Spain v Canada), ICJ Reports 1998, 432 245, 453

Fisheries Jurisdiction (United Kingdom v Iceland) (Jurisdiction of the

Court), ICJ Reports 1973, 3; (Merits), ICJ Reports 1974, 3 139

Gabcíkovo Nagymaros Project (Hungary v Slovakia), ICJ

Genocide Convention case (Application of the Convention on the

Prevention and Punishment of the Crime of Genocide (Bosnia and

Herzegovina v Yugoslovia)) (Preliminary Objections), ICJ

Interpretation of Peace Treaties, Advisory Opinion, ICJ Reports 1950,

LaGrand case (Germany v United States of America) (Jurisdiction and

Admissibility), Judgment of 27 June 2001, posted on the

internet at http://www.icj-cij.org/icjwww/idocket 59, 224, 226,

245, 253, 448

Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, 66

(request by the WHO), 226 (request by the UN General

Assembly) 150 1, 286 7, 288, 292, 408 9, 415 6, 417 8

Lockerbie cases (Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie, Libyan Arab Jamahiriya v US and UK) (Provisional Measures),

ICJ Reports 1992, 3 (UK), 114 (US); (Preliminary Objections),

ICJ Reports 1998, 9 (UK), 115 (US) 121, 171, 186 7, 203 4, 241,

286, 291 3, 339 42, 386 7, 461

Maritime Delimitation between Nicaragua and Honduras in the

Caribbean Sea (Nicaragua v Honduras), pending before the ICJ,

Maritime Delimitation in the Area between Greenland and Jan Mayen,

Maritime Delimitation and Territorial Questions between Qatar and

Namibia case (Legal Consequences for States of the Continued Presence

of South Africa in Namibia (South West Africa)), Advisory

Opinion, ICJ Reports 1971, 16 50, 61, 143, 206, 266, 292

Nicaragua case (Case concerning Military and Paramilitary Activities in and against Nicaragua) (Jurisdiction and Admissibility), ICJ

Reports 1984, 392; (Merits), ICJ Reports 1986, 14 36 7, 124,

155, 449, 452, 458, 467

Northern Cameroons (Judgment), ICJ Reports 1963, 27 448

Nuclear Tests case, ICJ Reports 1973, 99 143

Nuclear Tests cases, ICJ Reports 1974, 253 (Australia v France),

Reparations for Injuries, Advisory Opinion, ICJ Reports 1949, 179 287 8

Request for Revision of Judgement No 273 of the UN Administrative

Tribunal (Mortished), ICJ Reports 1982, 321 112

Reservations to the Genocide Convention, Advisory Opinion, ICJ

Right of Passage (Portugal v India), ICJ Reports 1960, 6 127 8,

241, 391, 394

South West Africa (Second Phase), ICJ Reports 1966, 6 127, 130, 354

South West Africa (Voting Procedure), ICJ Reports 1955, 67 268

Teheran Hostages (US Diplomatic and Consular Staff in Teheran), ICJ

United States Nationals in Morocco, ICJ Reports 1952, 189 264 5

GATT 1947 panel reports

Canada Administration of the Foreign Investment Review Act,

Canada Import Restrictions on Ice Cream and Yoghurt, adopted on 4

Canada Measures Affecting Exports of Unprocessed Herring

and Salmon, adopted on 22 March 1988, L/6268,

Canada Measures Affecting the Sale of Gold Coins, not adopted,

Canada/European Communities Article XXVIII Rights (DS12/R), BISD

United States Countervailing Duties on Fresh, Chilled and

Frozen Pork from Canada, adopted on 11 July 1991,

United States Countervailing Duties on Non-Rubber Footwear from

Brazil, adopted on 13 June 1995, BISD 42S/208 207

United States Imports of Sugar from Nicaragua, adopted on 13

United States Restrictions on Importation of Sugar (US Sugar

Headnote), adopted on 22 June 1989, BISD 36S/331 357 8

United States Restrictions on Imports of Tuna, DS 29/R, not adopted,

report circulated on 16 June 1994 35, 258 9, 268, 456 7

United States Taxes on Petroleum and Certain Imported Substances,

WTO cases

The italicised case name is the short name referred to in the text Each WTO dispute has a DS number (set out in the list below) The document reference for panel reports is ‘‘WT/DS /R”; for Appellate Body reports it is ‘‘WT/DS /AB/R” All WTO dispute settlement reports can be found on the WTO webpage at

www.wto.org

Argentina Footwear: Argentina Certain Measures Affecting

Imports of Footwear, Textiles, Apparel and Other Items,

complaint by the United States (WT/DS56), panel and

347 8, 376, 411, 471, 479 81

Argentina Safeguards: Argentina Safeguard Measures on

Imports of Footwear, complaint by the European

Communities (WT/DS121), Panel and Appellate Body reports

Australia Leather: Australia Subsidies Provided to Producers

and Exporters of Automotive Leather, complaint by the

United States (WT/DS126), panel and Appellate Body reports

adopted on 16 June 1999 Panel report on implementation

(DSU Art 21.5) requested by the United States, adopted on

225, 226, 317

Australia Salmon: Australia Measures Affecting the

Importation of Salmon, complaint by Canada (WT/DS18),

panel and Appellate Body reports adopted on 6 November

Brazil Aircraft: Brazil Export Financing Programme for

Aircraft, complaint by Canada (WT/DS46), panel and

Appellate Body reports adopted on 20 August 1999 795 6, 200

Brazil Aircraft (Article 21.5 Canada): Brazil Export Financing

Programme for Aircraft Recourse by Canada to Article 21.5

of the DSU, WT/DS46/RW and AB/RW, panel and Appellate

Brazil Aircraft (Article 21.5 Canada II): Brazil Export

Financing Programme for Aircraft Second Recourse by

Canada to Article 21.5 of the DSU (WT/DS46/RW/2), panel

Brazil Aircraft (Article 22.6): Arbitrators report on suspension ofconcessions (DSU Art 22.6), proposal by Canada

233, 270, 271, 470

Brazil Desiccated Coconut: Brazil Measures Affecting

Desiccated Coconut, complaint by the Philippines

(WT/DS22), panel and Appellate Body reports adopted

Canada Aircraft: Canada Measures Affecting the Export of

Civilian Aircraft, complaint by Brazil (WT/DS70), panel and

Appellate Body reports adopted on 20 August 1999 Panel

and Appellate Body reports on implementation (DSU Art

21.5) requested by Brazil (WT/DS70/RW), adopted on 4

Canada Autos: Canada Certain Measures Affecting the

Automotive Industry, complaints by the European

Communities (WT/DS142) and Japan (WT/DS139), panel and

Canada Dairy Products: Canada Measures Affecting the

Importation of Milk and the Exportation of Dairy Products

(WT/DS103), complaints by the United States and New

Zealand (WT/DS113), panel and Appellate Body reports

Canada Patent: Canada Term of Patent Protection, complaint

by the United States (WT/DS170), panel and Appellate Body

Canada Periodicals: Canada Certain Measures Concerning

Periodicals, complaint by the United States (WT/DS31), paneland Appellate Body reports adopted on 30 July 1997 401, 404 5

Chile Price Band System: Chile Price Band System and

Safeguard Measures Relating to Certain Agricultural

Products (WT/DS 207), panel and Appellate Body reports

Chile Swordfish: Chile Measures Affecting the Transit and

Importation of Swordfish, complaint by the European

Communities (WT/DS193), panel established at the DSB

meeting of 12 December 2000, proceedings suspended on 23

Chile Taxes: Chile Taxes on Alcoholic Beverages, Appellate

Body report, WT/DS87/AB/R, WT/DS110/AB/R, adopted

EC Asbestos: European Communities Measures Affecting the

Prohibition of Asbestos and Asbestos Products, complaint byCanada (WT/DS135), panel and Appellate Body reports

411, 445, 453, 456

EC Bananas: European Communities Regime for the

Importation, Sale and Distribution of Bananas, complaints

by Ecuador, Guatemala, Honduras, Mexico and the United

States (WT/DS27), panel and Appellate Body reports adopted

on 25 September 1997 Panel report on implementation

(DSU Art 21.5) requested by Ecuador (WT/DS27/RW/ECU),

adopted on 6 May 1999 (no appeal) Arbitrators report on

suspension of concessions (DSU Art 22.6), proposal by the

United States (WT/DS27/ARB/US), circulated on 9 April 1999,

and proposal by Ecuador (WT/DS27/ARB/ECU), circulated on

210, 220, 223, 233, 271, 346 7, 357,

358, 401 3, 404, 411, 421, 446, 447, 470, 471

EC Computer Equipment: European Communities Customs

Classification of Certain Computer Equipment, complaint bythe United States (WT/DS62, 67, 68), panel and Appellate

Body reports adopted on 22 June 1998 42, 76, 253, 257, 269,

270 1, 357

EC Hormones: European Communities Measures Affecting

Livestock and Meat (Hormones), complaints by Canada

(WT/DS48) and the United States (WT/DS26), panel and

Appellate Body reports adopted on 13 February 1998

Arbitrators report on suspension of concessions (DSU

Art 22.6), proposals by the United States (WT/DS26/ARB) andCanada (WT/DS48/ARB), circulated on 12 July 1999 1 2, 32,

86, 109, 132, 163, 186, 220, 233, 241,

242, 249 50, 270, 317, 349, 411, 412, 479, 481 2

EC Poultry: European Communities Measures Affecting

Importation of Certain Poultry Products, complaint by

Brazil (WT/DS69), panel and Appellate Body reports adopted

EC Sardines: European Communities Trade Description of

Sardines, complaint by Peru (WT/DS231), panel report

Guatemala Cement I: Guatemala Anti-Dumping Investigation

Regarding Imports of Portland Cement from Mexico,

complaint by Mexico (WT/DS60), panel and Appellate Body

Guatemala Cement II: Guatemala Definitive Anti-dumping

Measure regarding Grey Portland Cement from Mexico,

complaint by Mexico (WT/DS156), panel report adopted on

India Autos: India Measures Affecting the Automotive Sector,complaint by the United States and the EC (WT/DS146/R andCorr.1, WT/DS175/R and Corr.1), panel report adopted on

India Patent (EC complaint): India Patent Protection for

Pharmaceutical and Agricultural Chemical Products,

complaint by the European Communities (WT/DS79), panel

India Patent (US complaint): India Patent Protection for

Pharmaceutical and Agricultural Chemical Products,

complaint by the United States (WT/DS50), panel and

Appellate Body reports adopted on 16 January 1998 208, 249, 470

India Quantitative Restrictions: India Quantitative

Restrictions on Imports of Agricultural, Textile and

Industrial Products, complaint by the United States

(WT/DS90), panel and Appellate Body reports adopted

Indonesia Autos: Indonesia Certain Measures Affecting the

Automobile Industry, complaints by the European

Communities (WT/DS54), the United States (WT/DS59) and

Japan (WT/DS64), panel report adopted on 23 July 1998 189 90,

193 4, 240, 366 7, 412

Japan Alcoholic Beverages: Japan Taxes on Alcoholic Beverages,complaints by the European Communities (WT/DS8), Canada(WT/DS10) and the United States (WT/DS11), panel and

Appellate Body reports adopted on 1 November 1996 28, 46,

49, 51, 52, 110, 223, 245, 249

Japan Varietals: Japan Measures Affecting Agricultural

Products (WT/DS76/AB/R), Appellate Body report adopted

Korea Beef: Korea Measures Affecting Imports of Fresh,

Chilled and Frozen Beef, complaints by the United States

(WT/DS161) and Australia (WT/DS169), panel and Appellate

Korea Government Procurement: Korea Measures Affecting

Government Procurement, complaint by the United States

(WT/DS163), panel report adopted on 19 June 2000

Korea Safeguards: Korea Definitive Safeguard Measure on

Imports of Certain Dairy Products, complaint by the

European Communities (WT/DS98), panel and Appellate

Mexico Corn Syrup (Article 21.5 US): Mexico Anti-Dumping

Investigation of High Fructose Corn Syrup (HFCS) from the

United States Recourse to Article 21.5 of the DSU by the

United States (WT/DS132/RW and AB/RW), panel and

Appellate Body reports adopted on 21 November 2001 209, 294,

297 8, 442, 448 9

Nicaragua Measures Affecting Imports from Honduras and Colombia:

complaint by Colombia (WT/DS188), panel established at theDSB meeting of 18 May 2000, complaint by Honduras

(WT/DS201), consultations formally still pending 20, 450

Philippines Autos: Philippines Measures Affecting Trade and

Investment in the Motor Vehicle Sector, complaint by the

United States (WT/DS195), panel established at the DSB

Turkey Textile: Turkey Restrictions on Imports of Textile and

Clothing Products, complaint by India (WT/DS34), panel andAppellate Body reports adopted on 19 November 1999 198,

295 6, 303, 454, 470

United States The Cuban Liberty and Democratic Solidarity Act:

complaint by the European Communities (WT/DS38), the

panel’s authority lapsed on 22 April 1998 (no panel findings

United States Measures Affecting Government Procurement:

US Anti-Dumping Act of 1916: United States Anti-Dumping Act

of 1916, complaints by the European Communities

(WT/DS136) and Japan (WT/DS162), panel and Appellate Bodyreports adopted on 26 September 2000 209, 294, 448 9, 470

US Certain Products: United States Import Measures on

Certain Products from the European Communities,

complaint by the European Communities (WT/DS165), paneland Appellate Body reports adopted on 10 January 2001 224,

225, 226, 235, 236, 420 1, 446

US Copyright: United States Section 110(5) of the US

Copyright Act, complaint by the European Communities

(WT/DS160), panel report adopted on 27 July 2000 118, 445

US Cotton Yarn: United States Transitional Safeguard

Measure on Combed Cotton Yarn from Pakistan, complaint

by Pakistan (WT/DS192), panel and Appellate Body reports

US FSC: United States Tax Treatment for ‘Foreign Sales

Corporations’complaint by the European Communities

(WT/DS108), panel and Appellate Body reports adopted on

20 March 2000 51, 110, 112, 196 7, 200, 269 70, 297, 317

US FSC (Article 21.5 EC): United States Tax Treatment for

‘Foreign Sales Corporations’ Recourse to Article 21.5 of theDSU by the European Communities (WT/DS108/RW and

AB/RW), panel and Appellate Body reports adopted on

US Gasoline: United States Standards for Reformulated and

Conventional Gasoline, complaints by Venezuela (WT/DS2)

and Brazil (WT/DS4), panel and Appellate Body reports

US Hot-Rolled Steel: United States Anti-Dumping Measures on

Certain Hot-Rolled Steel Products from Japan, complaint by

Japan (DS184), panel and Appellate Body reports adopted on

US Line Pipe: United States Definitive Safeguard Measures onImports of Circular Welded Carbon Quality Line Pipe from

Korea, complaint by Korea (WT/DS202), panel and Appellate

US Section 211 Appropriations Act: United States Section 211

Omnibus Appropriations Act of 1998, complaint by the

European Communities (WT/DS176), panel and Appellate

Body reports adopted on 1 February 2002 84, 118 9, 208

US Section 301: United States Sections 301 10 of the Trade

Act of 1974, complaint by the European Communities

(WT/DS152), panel report adopted on 27 January 2000

US Shirts and Blouses: United States Measure Affecting

Imports of Woven Wool Shirts and Blouses, complaint by

India (WT/DS33), panel and Appellate Body reports adopted

US Shrimp: United States Import Prohibition of Certain

Shrimp and Shrimp Products, complaints by India, Malaysia,Pakistan and Thailand (WT/DS58), panel and Appellate Bodyreports adopted on 6 November 1998 1, 20, 32 3, 209, 245,

255, 256, 260, 266 7, 269, 411 2, 470, 484 6

US Shrimp (Article 21.5): United States Import Prohibition of

Certain Shrimp and Shrimp Products Recourse to Article

21.5 of the DSU by Malaysia, panel and Appellate Body

reports (WT/DS58/RW and WT/DS58/AB/RW) adopted on

21 November 2001 50, 51, 111, 259 60, 268, 269, 464 5, 485

US Underwear: United States Restrictions on Imports of

Cotton and Man-made Fibre Underwear, complaint by CostaRica (WT/DS24), panel and Appellate Body reports adopted

Other cases

Aaland Islands (Dispute on the Regime of Demilitarization for the),

report of the International Committee of Jurists entrusted

by the Council of the League of Nations with the task of

giving an advisory opinion upon the legal aspects of the

Aaland Islands Question, League of Nations Official Journal,

Air Transport Services Agreement arbitration (United States v France)

Al-Adsani v The United Kingdom, judgment by the ECtHR of 21

November 2001, http://www.echr.coe.int/Eng/Judgments.htm 3,

255 6

Amoco Int Finance Corp v Iran (1987) 15 IRAN US CTR 189 206, 392

Chemin de Fer Zeltweg (Austria v Yugoslavia) (1934) 3 RIAA 1795 396

Costa v ENEL, Case 6/64 [1964] ECR 585 75, 246

Costa Rica v Nicaragua case, Central American Court of Justice,

DeBartolo Corp v Florida Gulf Coast Building and Trades Council,

Decision of the Commission as to the Admissibility of Application

No 788/60 lodged by the Government of the Republic of Italy (1961)

Defrenne v SABENA, Case 43/75 [1976] ECR 455 127, 227

El Salvador v Nicaragua case, Central American Court of Justice,

Espahanian v Bank Tejarat (1983 I) 2 IRAN US CTR 157 255

Footwear Distributors and Retailers of America v United States, 852

F Supp 1078 (CIT), appeal dismissed, 43 F.3d 1486 (Table)

Georges Pinson case, Franco-Mexican Commission, AD 1927 8,

Golder case, European Court of Human Rights (1975),

INA Corp v Iran, (1985) 8 IRAN US CTR 373 392 3

Iran United States (Case A/2), Jurisdiction over Claims filed by Iran

against US Nationals (1981) 1 IRAN US CTR 101 396

Iran v United States (Case A18), (1984 I) 5 IRAN US CTR 251 255

Island of Palmas arbitration (Netherlands v United States), (1928)

Johnston and Others v Ireland, European Court of Human Rights,

Kronprins Gustaf Adolf and Pacific (Arbitration of a Difference

Concerning Swedish Motor Ships), 18 July 1932 (1935)

La Bretagne arbitration decision (1986) 90 RGDIP 716 139, 204

Loizidou v Turkey, European Court of Human Rights, judgment of

Mox Plant case (Ireland v United Kingdom), Order on Provisional

Measures by ITLOS, 13 November 2001, posted on the

Murray v Schooner Charming Betsy, 6 US (2 Branch) 64 (1804) 246

Opel Austria v Council, CT 115/94, REC 1997, 11 39 40

Opinion on the Draft Agreement on a European Economic Area,

Parliament v Council, Case C-70/88, [1990] ECR 2073 285

Phillips v NIOC and Iran, Case No 39, Chamber Two, Award no.

425 39 2, 29 June 1989 (1989 I) 21 IRAN US CTR 79 393

Racke (A.) GmbH v Hauptzollamt Mainz, Case C-162/96 [1998] ECR

Rainbow Warrior arbitration award (30 April 1990), 20 UNRIAA 217 448

Regina v Bow Street Metropolitan Stipendiary Magistrate and Others,

ex parte Pinochet Ugarte (No 3), judgment by the House of

Southern Bluefin Tuna case (Australia and New Zealand v Japan)

(Jurisdiction and Admissibility), Arbitral Tribunal

constituted under Annex VIII of the UN Convention on the

Law of the Sea, posted on the internet at

www.worldbank.org/icsid/bluefintuna/main.htm 22, 118, 132,

214, 413, 450, 453 4

Spanish Fishermen’s cases, including Case 812/79, Attorney General

Tadi´c case, Prosecutor v Duˇsko Tadi´c, International Criminal

Tribunal for the Former Yugoslavia, Trial Chamber, Decision

of 10 August 1995, IT 94 I T; Appeals Chamber, Decision of

2 October 1995, IT 94 1 AR72 (1997) 105 ILR 419 124, 294, 448 9

Tariffs Applied by Canada to Certain US-Origin Agricultural Products,

final report of the Arbitration Panel Established Pursuant to

UK France Continental Shelf Arbitration (1979) 18 ILM 397 139

Van Gend en Loos, Case 26/62 [1963] ECR 1 75

Von Colson and Kamann v Land Nordrhein-Westfalen, Case 14/83

AD Annual Digest of Public International Law Cases

(now ILR)

Species of Wild Fauna and Flora

the Settlement of Disputes

xxvi

ICTY International Criminal Tribunal for the Former

Yugoslavia

ILC Draft 1996 Draft Articles on State Responsibility adopted on

first reading, ILC 48th session, 1996ILC Draft 2000 Draft Articles on State Responsibility provisionally

adopted by the Drafting Committee on secondreading, ILC 52nd session, 2000

IRAN US CTR Iran United States Claims Tribunal Reports

Development

Recueil des Cours Recueil des Cours de l’Académie de Droit

International (The Hague)

UNCIO United Nations Conference on International

Awards

Certainly, international law must adapt itself to the variety of fieldswith which it has to deal, as national law has done It must also adaptitself to local and regional requirements Nonetheless, it must preserveits unity and provide the players on the international stage with asecure framework.1

How should a WTO panel react when faced with the argument that anallegedly WTO inconsistent trade restriction is justified under an envi-ronmental treaty, IMF rules or customary international law? How shouldthey react when parties make objections, claims or defences based onrules of general international law, not explicitly covered in the WTOtreaty itself, such as rules on burden of proof, standing, good faith, dueprocess, error in treaty formation or the binding nature of unilateraldeclarations? Those are the type of questions that gave rise to this book.They are very real and practical questions and as a legal adviser to WTO

panels, I was often asked to answer them In the US Shrimp dispute,

for example, the United States invoked a number of multilateral ronmental treaties in defence of its import ban on shrimp coming fromcountries which, in the US view, did not sufficiently protect endangered

envi-turtles In EC Hormones, the European Communities claimed that their

ban on hormone-treated beef, allegedly inconsistent with WTO rulesfor not being based on sound science, was justified with reference tothe ‘precautionary principle’, a principle which, in the EC’s view, was

1 ‘The Proliferation of International Judicial Bodies: The Outlook for the International Legal Order’, Speech by His Excellency Judge Gilbert Guillaume, President of the ICJ, to the Sixth Committee of the UN General Assembly, 27 October 2000, p 4, posted on the internet at http://www.icj-cij.org/icjwww/ipresscom/SPEECHES/iSpeechPresident Guillaume SixthCommittee 20001027.htm.

part of customary international law In Argentina Footwear, the

statisti-cal tax imposed on imports was, according to Argentina, nothing morethan an implementation of an agreement it had reached with the IMF.The relationship between WTO rules and other rules of internationallaw is at the forefront also of the ongoing Doha Development Round.The Doha Declaration explicitly listed ‘the relationship between exist-ing WTO rules and specific trade obligations set out in multilateralagreements (MEAs)’as one of the topics on the negotiating agenda.2The relationship between the three pillars of trade, environment anddevelopment, and the norms that each of these pillars may produce,

is at the heart also of the 2002 Johannesburg Summit on SustainableDevelopment

An answer to those questions of relationship between WTO rules andother rules of international law goes beyond the specifics of a trade dis-pute, even beyond the peculiarities of the WTO legal system Answeringthose questions necessarily implies an expression of one’s view of in-ternational law as a whole Should a trade dispute before the WTO beexamined only in the light of WTO rules? Is there such a thing as gen-eral international law that binds all states and could it be a unitingfactor as between the different branches of international law so that itshould apply also to the WTO treaty? Or should the WTO rather be leftuntouched and operate only within its limited sphere of trade rules?These are considerations of extreme systemic importance for the system

of international law In addition, they are heavily value-laden and go tothe heart of much of the critique against globalisation: is globalisationonly about the economy and making profits or is it counterbalancedalso by other factors such as environmental protection, development ofweaker regions, social protection and safety nets?

The above-mentioned problems related to the interplay between ferent treaty regimes and between treaties and custom or general prin-ciples of law, not only surface in the WTO Given the increased over-lap as between different regimes of international law be it the UNSecurity Council dealing with human rights and war crimes; the WorldBank addressing environmental sustainability; or the WHO negotiating

dif-a tredif-aty to reguldif-ate the sdif-ale of tobdif-acco products the question of howdifferent norms of international law interact is omnipresent On 8 May

2002, the International Law Commission even set up a Study Group

2 Doha Ministerial Declaration, paragraph 31(i), adopted on 14 November 2001, WT/ MIN(01)/DEC/1 dated 20 November 2001.

on the topic of the ‘Fragmentation of international law’, to be chaired

by Professor Bruno Simma.3 In terms of specific disputes the questionwas raised prominently also before, for example, the European Court of

Human Rights (in the Al-Adsani case where the prohibition on torture

set out in the Convention played out against customary international

law rules on state immunity) and the House of Lords in the Pinochet case

(where the relationship between the Torture Convention and ary rules on immunity for heads of state were at stake) ITLOS, as well,has been asked to deal with disputes that raise questions under treaty

custom-regimes other than UNCLOS (see, for example, the Swordfish dispute, a

dispute that was brought also before the WTO; and the more recent

MOX Plant case, raising questions not only under UNCLOS but also under

the Convention for the Protection of the Marine Environment of theNorth-East Atlantic (OSPAR Convention), the EC treaty and the Euratomtreaty)

This book does not go into specific cases of interplay or conflict tween WTO rules and other rules of international law Rather, it attempts

be-to provide a conceptual framework within which the interplay betweennorms can be examined It is hoped that this framework will be usefulalso for the resolution of conflicts not involving WTO norms

Chapter 1 sets out the parameters of this book, limiting its scope, inparticular, to situations of ‘conflict’as between two established ‘norms’

or ‘rules’of international law This first chapter also elaborates on anumber of reasons why conflict of norms is a field of study of both sys-temic and practical importance in modern international law and, moreparticularly so, in WTO law

Chapter 2 introduces the specific case study that will be used out this book, namely the law of the World Trade Organization Itassesses the place of WTO law in the wider spectrum of public inter-national law, sums up the different sources of what will be referred

through-to as ‘WTO law’and, of crucial importance, introduces the tion between ‘reciprocal’and ‘integral’obligations and the legal con-sequences attached to it

distinc-In chapter 3, we examine whether there is, as in most domestic legalsystems, a hierarchy of ‘sources’of international law, that is, formalhierarchies depending on the source of the norm in question We ex-amine the relative importance of judicial decisions and doctrine as a

3 Daily Bulletin, Fifty-fourth session of the ILC, posted on the internet at http://www.un org/law/ilc/sessions/54/jourchr.htm.

‘source of law’, including the question of ‘conflicting judicial decisions’;the status of ‘general principles of law’; and the intricate relationshipbetween custom and treaties.

In chapter 4, the focus is shifted away from ‘sources’of law, to specific

‘norms’of law We examine the process and definition of ‘accumulation’and ‘conflict’of norms and highlight the importance of ‘fall-back’and

‘contracting out’of general international law for a theory on conflict ofnorms

Moving then to the specific problem of ‘conflict’of norms, chapter

5 stresses the exceptional nature of ‘conflict’, given the presumptionagainst conflict and the process of treaty interpretation to be resorted

to in order to avoid a conflict between two norms For those cases wheregenuine conflict nonetheless arises, chapters 6 and 7 attempt to set outsolutions Chapter 6 deals with what we will call ‘inherent normativeconflicts’; chapter 7 with ‘conflict in the applicable law’

We conclude this book with one of its most important chapters,namely that on how the general theories developed earlier apply in theconcrete circumstances of WTO dispute settlement In this final chap-ter we will come back to some of the specific WTO disputes referred toearlier in this introduction and explain them in the light of the theorydefended in this book

of norms in public international law

The measure of success which is achieved in eliminating and ing conflicts between law-making treaties will have a major bearing

resolv-on the prospect of developing, despite the imperfectiresolv-ons of the tional legislative process, a coherent law of nations adequate to modernneeds.1

interna-What follows is about ‘conflict’, more particularly conflict between

‘norms’of ‘public international law’ The prime example referred to will

be the law of the World Trade Organization The crucial question in thiscase study is: how does WTO law relate to other rules of public inter-national law? The internal hierarchy between norms which are part ofthe WTO treaty2is also addressed We not only examine these questions

in abstracto We also assess them in the more concrete context of WTO

dispute settlement

Conflict

The scope of this work is limited to situations of ‘conflict’between legalnorms The main question is, therefore: when there is a conflict betweentwo norms, which of the two norms should be applied? This questionrelates to the hierarchy of norms in international law

Before suggesting ways to resolve conflict of norms, we shall have todefine first what is meant by ‘conflict’ In many instances, what may

1 Wilfred Jenks, ‘Conflict of Law-Making Treaties’(1953) 30 BYIL 401 at 453.

2 When referring to the ‘WTO treaty’we mean the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, concluded in Marrakesh,

Morocco, on 15 April 1994, published in WTO Secretariat, The Results of the Uruguay

Round of Multilateral Trade Negotiations, The Legal Texts (Geneva, 1995) The sources of the

wider notion of ‘WTO law’are discussed in chapter 2 below, pp 40 52.

seem like a conflict will not be a conflict but only a divergence which

can be streamlined by means of, for example, treaty interpretation Thisnecessary exercise of identifying when exactly two norms are ‘in conflict’means that we cannot limit this study to setting out a number of rules

of priority in international law In addition, we shall need to addressthe definition of conflict and the different avenues that may lead toconvergence of norms in a conflict that is apparent only, not real

Conflict of norms

Norms versus the pre-normative and norms versus process

Crucially, only conflict between legally binding norms is dealt with We use

the notion of ‘norms’and that of ‘rules’interchangeably We shall notaddress the interplay between norms and elements of a pre-normativecharacter As a result, this work does not generally address, for example,

the influence of pre-normative elements (such as the travaux préparatoires

of a treaty or state practice) on the interpretation, modification or mination of norms.3Nor shall we address the impact of what is referred

ter-to as ‘soft law’even though an increasing number of authors considerthis soft law to be of a normative value, albeit not legally binding inand of itself.4 Others, in contrast, are of the opinion that soft law is of

a pre-normative value only and is, in fact, not law at all.5Pre-normativeelements, as well as norms that are not legally binding, may well be cru-cial in treaty interpretation so as to resolve apparent (but not genuine)conflicts Yet, our focus here will be on what to do in case such harmo-

nious interpretation is not possible, that is, on what to do in case an

international adjudicator is faced with a genuine conflict between twolegally binding norms

3 For an overview of the impact of subsequent practice on treaties, see Wolfram Karl,

Vertrag und Spätere Praxis im Völkerrecht (Berlin: Springer, 1983).

4 See, for example, Alain Pellet, ‘The Normative Dilemma: Will and Consent in

International Law-Making’(1991) 12 Australian Yearbook of International Law 22.

Elsewhere, Pellet makes a distinction between ‘le juridique’ and ‘l’obligatoire’, soft law being part of the former, not the latter (Nguyen Quoc Dinh, P Daillier and A Pellet,

Droit International Public (Montreal: Wilson & Lafleur, 1999), para 254).

5 In this sense, see, particularly, Prosper Weil, ‘Towards Relative Normativity in

International Law?’(1983) 77 AJIL 413, who is of the view that acts that ‘do not create rights or obligations on which reliance may be placed before an international court of justice or of arbitration’and acts ‘[the] failure to live up to [which] does not give rise to

international responsibility’are of a pre-normative character only (ibid., at 415).

Our focus on legally binding norms, and the conflicts that may arisebetween them, results from the need to delimit the scope of this study.

It does not in any way imply that international law is, or should be, ited to a number of positive rules As Rosalyn Higgins expressed in thefirst two sentences of her general course at The Hague: ‘Internationallaw is not rules It is a normative system harnessed to the achieve-ment of common values.’6 That international law is not just ‘rules’

lim-or what Higgins refers to as ‘accumulated past decisions’ but rather acontinuous ‘process’ from the formation of rules to their refinement

by means of application in specific cases, with multiple actors, tions and legally relevant instruments and conduct at play will becomeapparent across this work.7 Still, the topic of this book is conflict and

institu-hierarchy between legally binding norms, in particular, as they may be

invoked before an international court or tribunal The hierarchy of actors,

in-stitutions and values will shed valuable light on this examination, but

is not our main concern here.8

In the words of Bos, the standpoint taken in this study is that ofthe ‘consumer’of international law, not that of the ‘producer’of inter-national law.9 States before an international court or tribunal, whereconflicting norms may be invoked, are, indeed, ‘consumers’of interna-tional law or ‘law-takers’ From that perspective, it is crucial to knowwhat the law is, where it can be found and how the judge will apply it

6 Rosalyn Higgins, ‘General Course on Public International Law’(1991-V) 230 Recueil des

Cours 23.

7 Criticising the traditional theory on the sources of international law, Abi-Saab phrased

it thus: ‘Elle [the traditional theory] représente le développement du droit en termes d’explosions et de ruptures, plutˆ ot que de transitions et de transformations, ou comme

un processus continu et en constante évolution Nous aboutissons ainsi à une théorie

de création juridique par ‘‘big bang” En réalité cependant, le droit international, comme tout droit, ne provient pas d’un ‘‘néant” ou d’un vide social’ (Georges Abi-Saab,

‘Les Sources du Droit International: Essai de Déconstruction’, in Le Droit International

dans un Monde en Mutation, Mélanges E J De Arechaga (Montevideo: Fundación de Cultura

Universitaria, 1994), 29 at 47).

8 As Weiler and Paulus remarked on the question put to them, ‘Is there a hierarchy of norms in international law?’: ‘Should we not also be thinking of international law as process rather than, or as well as, norms? Operationally, does the image of the lawyer determining the content of norms and actors behaving or misbehaving accordingly really capture international legal process? Normatively, is the hierarchy of norms going

to tell the true story of what is important and what is unimportant in international law rather than, say, the hierarchy of actors or of institutions?’(Joseph Weiler and A L Paulus, ‘The Structure of Change in International Law or Is There a Hierarchy of Norms

in International Law?’(1997) 8 EJIL 545 at 554).

9 Maarten Bos, ‘The Recognized Manifestations of International Law’(1977) 20 GYIL 9 at 11 13.

in case there is, for example, a conflict of norms However, given the lack

of a centralised ‘legislator’in international law, as well as the optionalnature of international adjudication, states are also, even mostly, ‘pro-ducers’of international law or ‘law-givers’ From that perspective, clearlycircumscribing what international law is and is not, is of less impor-tance The ‘law-giver’can give her own interpretation to existing normsand always produce new norms to her liking International law from

this abstract ‘producer’s’ viewpoint the one we will not adopt here

is more open to extra-legal considerations and corresponds perhaps ter with everyday reality in international relations Nevertheless, thenarrower ‘consumer’s’ approach, increasingly important in fields, such

bet-as the WTO, with compulsory dispute settlement procedures, is whatwill preoccupy us in this study As Peter Hulsroj warned:

Clearly a question on how a state can be expected to react in a given situationcannot be answered by purely analysing the norms that would follow from Art

38 of the Statute of the ICJ, but must embrace norms dictated by history, interest, potential political fall-out, etc Only, I believe that law pragmaticallymust be understood to be the norms that an ultimate arbiter, the courts, willfind to apply to a given legal conflict and this again means that legal normsare the ones that in some form or another can be derived from the sourcedefinition in Art 38 of the Statute of the ICJ All other norms are then extra-legalnorms and it would be dangerous to ask an ultimate arbiter to disregard thisdistinction since predictability will be lost and the ultimate arbiter will be put

self-on an almost impossible task, namely to define norms based self-on all-encompassingempiricalism.10

Norms versus laws and norms versus obligations

As far as the title of this study is concerned, it was tempting to use the

term ‘conflict of international laws’, as opposed to ‘conflict of norms in

public international law’ The temptation is there, for the term ‘conflict

of international laws’would echo the more familiar field of study known

as ‘conflict of laws’or ‘private international law’: that is, the discipline

dealing with conflict between different domestic laws in disputes having links with two or more domestic legal systems Wilfred Jenks seems to

have succumbed to this temptation when entitling his seminal piece

‘Conflict of Law-Making Treaties’ He noted, for example, that ‘some ofthe problems which [law-making treaties] involve may present a closer

10 Peter Hulsroj, ‘Three Sources No River, A Hard Look at the Sources of Public International Law with Particular Emphasis on Custom and ‘‘General Principles of

Law” ’, (1999) 54 Zeitschrift für öffentliches Recht 219 at 236.

analogy with the problem of the conflict of laws than with the problem

of conflicting obligations within the same legal system’.11

Modern international law is, indeed, composed increasingly of

treaty-based sub-systems (such as that of the WTO, the Framework Convention on

Climate Change or the World Intellectual Property Organization) Thesesub-systems could be said to have their own sector-specific ‘internationallaw’, law-maker and law-enforcement mechanism Like national lawswithin the discipline of ‘conflict of laws’, these sub-systems of publicinternational law interact and may give rise to conflict It is, indeed,this type of conflict (say, between WTO law and the law developed underthe Framework Convention on Climate Change) that inspired this workand will attract most of our attention Nevertheless, to talk of thesesub-regimes as being separate ‘international laws’which may ‘conflict’

would give the wrong signal First, it would lose sight of general

inter-national law in creating the impression that these sub-regimes are contained regimes’to be evaluated exclusively with reference to norms

‘self-created within the particular sub-regime Second, it could be understood

by some as elevating what are basically treaty norms (say, WTO

provi-sions) of a contractual nature to the status of ‘law’in the strict domestic

law sense of norms imposed by an independent ‘legislator’on all jects (i.e states) of the sub-regime independently of their will.12

sub-Another alternative to ‘conflict of norms’(besides ‘conflict of tional laws’) could have been ‘conflict of obligations’ However, to talk

interna-of conflict interna-of obligations would obscure the fact that international law is composed of obligations and rights As we shall see below, a conflict may

consequently arise not only as between two contradictory obligations,but also as between an obligation and an explicit right.13 At the sametime, it is worth noting that in practice a conflict of norms will always

boil down to, and need examination in terms of, a conflict between rights and/or obligations resting on one or several states There is no such thing

as norms ‘in the air’ Norms, at least those we shall further examine(that is, those that are legally binding), are imposing obligations on, or

11 Jenks, ‘Conflict’, 403.

12 Sir Gerald Fitzmaurice has argued, for example, that treaties, including so-called

‘law-making treaties’, are not, in the proper sense of the word, formal sources of law:

‘They may, according to circumstances, afford evidence of what the law is, or they may lead to the formation of law and thus be material sources But they are in themselves sources of obligation rather than sources of law’(Gerald Fitzmaurice,

‘Some Problems Regarding the Formal Sources of International Law’, in Symbolae Verzijl

(The Hague: Nijhoff, 1958) 153 at 154).

13 See chapter 4 below, pp 184 8.

granting rights to, particular states They are in that sense ‘subjective’.But this does not mean that norms can always be reduced to the form

of bilateral right duty relations between two states, of a contract-typenature Increasingly, the rights and obligations set out in norms of inter-national law are of a collective or communitarian character As a result,their breach can then, for example, be invoked by all (participating)states.14

The fact that a conflict of norms can hence be reduced to conflict

of rights and/or obligations resting on one or several states albeit not

always of a contract-type nature is another reason not to talk of ‘conflict

of international laws’, or ‘conflict of treaties’ Although the general nature

of the treaties in question may well determine whether or not a givennorm in one treaty should prevail over that in another treaty, in the end,conflict must be narrowed down to a conflict between two given norms:more particularly, the rights and/or obligations set out by these norms

as they apply between particular states A conflict is rarely one between

treaties or sub-systems of international law in their entirety, where one treaty or sub-system in its entirety needs to give way to another treaty or

sub-system, that is, the way one domestic law may need to give way toanother domestic law in the field of conflict of laws.15Although someconflicts may lead to the invalidity, termination or non-application of anentire treaty,16 all conflicts require at least some examination of thespecific rights and obligations set out in the relevant treaties

Conflict of norms in public international law

Importantly, this study is not about the vertical conflict between national

law and international law, such as the question of whether a national

regu-lation enacted to protect the environment is in conflict with WTO rules

14 See, for example, Article 42 (defining the notion of ‘injured state’) and Article 48 (on invocation of responsibility by a state other than an injured state) of the ILC’s Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the ILC at its 53rd session, 2001 (Report of the ILC on the work of its 53rd session, General Assembly Official Records, 56th session, Supplement No 10 (A/56/10), chapter IV.E.1, hereafter ‘2001 Draft Articles on State Responsibility’).

15 For an exception, see Article 59(1) of the Vienna Convention on the Law of Treaties dealing with the termination of a treaty implied by the conclusion of a later treaty (for example, in case ‘the provisions of the later treaty are so far incompatible with those of the earlier treaty that the two treaties are not capable of being applied at the same time’).

16 See, for example, Arts 53, 59 and 63 of the Vienna Convention on the Law of Treaties.

We deal only with the horizontal conflict between two norms of national law (for example, a provision in an environmental conventionwhich contradicts a WTO rule).

inter-We shall, in addition, focus on specific subjects of international law,namely states and separate customs territories (such as Hong Kong,China or the European Communities), the latter also being able tojoin the WTO.17 The rights and obligations incumbent on other sub-jects of international law (such as international organisations or, insome instances, individuals), and their potential for conflict, will not beaddressed

The norms of international law subject to examination will not, ever, be limited to those derived from treaties.18 We shall address alsonorms produced by other sources of international law.19 What thesesources are, and how they may influence the outcome of conflict ofnorms, is examined in chapter 3

how-17 The Explanatory Notes to the Marrakesh Agreement Establishing the WTO (hereafter

‘Marrakesh Agreement’) define the term ‘country’, as it is used in WTO agreements,

‘to be understood to include any separate customs territory Member of the WTO’ Article XII of the Marrakesh Agreement allows any state or ‘separate customs territory possessing full autonomy in the conduct of its external commercial relations and of the other matters provided for in this Agreement and the Multilateral Trade

Agreements’to accede to the WTO Hereinafter when the word ‘state’or ‘country’is used in the context of the WTO treaty, it should be read as including separate customs territories.

18 Some of the major contributions in the field of conflict of norms in international law were, however, limited to conflict of treaty norms See, in chronological order: Charles Rousseau, ‘De la Compatibilité des Normes Juridiques Contradictoires dans l’Ordre International’(1932) 39 RGDIP 133; Hans Aufricht, ‘Supersession of Treaties in

International Law’(1952) 37 Cornell Law Quarterly 655; Jenks, ‘Conflict’; Nguyen Quoc

Dinh, ‘Evolution de la Jurisprudence de la Cour Internationale de La Haye Relative au

Problème de la Hiérarchie des Normes Conventionnelles’, in Mélanges Offerts à Marcel

Waline, Le Juge et Le Droit Public (Paris, Librairie générale de droit et de jurisprudence,

1974, 2 vols.), I, 215; M Zuleeg, ‘Vertragskonkurrenz im Völkerrecht, Teil I: Verträge zwischen souveränen Staaten’(1977) 20 GYIL 246; Dirk Falke, ‘Vertragskonkurrenz und

Vertragskonflikt im Recht der WTO’(2000) 3 Zeitschrift für Europarechtliche Studien 307;

and Jan Neumann, ‘Die Koordination des WTO-Rechts mit anderen völkerrechtlichen Ordnungen Konflikte des materiellen Rechts und Konkurrenzen der Streitbeilegung’, unpublished doctoral thesis (Münster, 2001).

19 This wider approach to conflict in international law so as to include other sources of international law was adopted also by: Michael Akehurst, ‘The Hierarchy of the Sources of International Law’(1974 5) 47 BYIL 273; Maarten Bos, ‘The Hierarchy among the Recognized Manifestations (‘‘Sources”) of International Law’(1978) 25 NILR 334;

Emmanuel Roucounas, ‘Engagements Parallèles et Contradictoires’(1987-VI) 206 Recueil

des Cours 9; and W Czaplinski and G Danilenko, ‘Conflict of Norms in International

Law’(1990) 21 NYIL 3.