Free Trade Agreements and Public International Law
Cambridge University Press, Bilateral and Regional Trade Agreements: Commentary and Analysis, 2007
27 Pages Posted: 21 Apr 2008
From the first report of the Appellate Body of the World Trade Organization (WTO) in 1996 to Joost Pauwelyn's seminal work in 2003, commentators and practitioners alike have been grappling with the thorny relationship between the WTO and public international law. More recently, problems in interpreting and applying WTO provisions in the light of customary international law and non-WTO treaties have come to reflect a concern regarding 'fragmentation' of international law more generally. One reason for this potential fragmentation lies in the disparate dispute settlement mechanisms under various international legal systems, including free trade agreements (FTAs).
As negotiations in the Doha Round sputter, and FTAs proliferate, the relationship between FTAs and other institutions and aspects of public international law becomes all the more crucial. States evaluating the benefits of FTAs must be fully aware of the broader international context into which they are born and the implications of international law as each FTA develops. Moreover, existing FTA members may seek additional certainty about their FTA rights and obligations and the likely outcome in the event of a dispute relating to other areas of international law. More broadly, an investigation into the relationship between public international law and FTAs provides an additional case study of the perceived problem of fragmentation of international law.
In this chapter, we focus on two primary sources of public international law, namely treaties and customary international law. We also take into account two other sources of public international law, namely general principles of law and judicial decisions and leading commentary. All four sources are included in Article 38(1) of the Statute of the International Court of Justice (ICJ Statute), which is often recognised as providing an informal list of the sources of international law.
Below, we examine three significant areas in which public international law interacts with FTAs: first, how various forms of public international law affect the interpretation of FTA provisions; second, the related issue of how FTAs contribute to customary international law and the extent to which customary international law applies to FTAs; and, finally, how to resolve conflicts between FTAs and other treaties. This final section examines both substantive conflicts and problems arising from overlapping jurisdictions of FTA tribunals and other international tribunals. This survey illustrates the complex web of links between FTAs and public international law and the readiness of FTA tribunals, particularly under the North American Free Trade Agreement (NAFTA), to draw on other sources of international law in interpreting FTA provisions and otherwise determining FTA disputes. At the same time, no clear answers emerge regarding how best to deal with the likelihood of ever increasing conflicts between FTAs and other treaties.
Keywords: Free trade, international law, WTO, fragmentation
JEL Classification: K33
Suggested Citation: Suggested Citation