La Doctrine en tant que Source de Droit à L’OMC (Legal Writings as a Source of Law at the World Trade Organization)

Abstract

Legal writings have generally received little attention as a source of international law. Nevertheless, Article 38 of the Statute of the International Court of Justice (ICJ) explicitly mentions after judicial decisions, "the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law." While only the customary law, treaties, and general principles are sources of obligations for States, it is clear that legal writings cannot in themselves be regarded as an independent source of obligations for States.

Legal writings and judicial decisions, however, are crucial to the extent that they may set, specify, or clarify the content, or even the existence, of a formal source of international law. As also indicated in Article 38 of the Statute of the Court, legal writings and judicial decisions are subsidiary means for the determination of rules of law. Legal writings should thus be considered not as a formal source of law, but rather as an authority.

In fact, legal writings, and judicial and arbitral decisions, are an important material source for the determination of rules of law, even if judicial decisions are most frequently cited by international courts and tribunals rather than legal writings. Indeed, while state parties to the dispute or their counsel generally make ample reference to the legal writing to support their arguments, international courts and tribunals rarely refer to legal writings in their judgments.

Legal writings as a source of law, and the influence they can have on the law of the World Trade Organization (WTO), generally follow the principles set out above. While legal writings have grown considerably in recent years, both the panels and the Appellate Body of the WTO only very rarely refer to legal writings in their reports. This paper analyzes the use of legal writings by panels and the Appellate Body. In doing so, this paper differentiates these few references to legal writings by their use: either as a genuine material source for the determination of rules of general international law or as a material source for the determination of the rules of treaty interpretation.

Note: Downloadable document is in French.

Keywords: WTO, sources of international law, legal writings, international adjudication