National Law as an Unpredictable Generator of International Law: The Case of Norm Export at the World Trade Organization

EUROPEAN SOCIETY OF INTERNATIONAL LAW, 10th Anniversary Conference, Vienna, 4-6 September 2014, Conference Paper No. 10/2014

21 Pages Posted: 6 Dec 2014

Date Written: September 4, 2014

Abstract

One of the most identifiable instances of national law generating international law is through the use of domestic legislation as the model for a treaty provision. This paper seeks to identify some consequences of using domestic legislation in this way by examining the World Trade Organization (WTO) where numerous obligations are modelled on national law. It argues that, far from straightforward, such a process is a particularly unpredictable form of law-making, the results of which are intelligible only as part of a complex process of "norm export".

This paper proceeds in three parts: first, it outlines the motivation for norm export, and identifies one method, embedding domestic law in an international legal system; second, it identifies an example from international trade remedies law modelled on US provisions, and the subsequent unexpected interpretation by the Appellate Body; third and finally, it analyses the seeming failure of the US to establish uniform provisions consistent with its own law in this area, reframing critiques of the Appellate Body's treatment of these US-originated WTO provisions. It does this by acknowledging the multiple exercises of norm export by actors, not only in these specific agreements but also in others, most notably in this case, the constituent document of the WTO's dispute settlement system, the Dispute Settlement Understanding, stressing the complexities involved in norm export and the inherent unpredictability of such an exercise.

Keywords: international law; domestic law and international law; WTO law; US law; norm export; safeguard measures.

Suggested Citation

Messenger, Gregory, National Law as an Unpredictable Generator of International Law: The Case of Norm Export at the World Trade Organization (September 4, 2014). EUROPEAN SOCIETY OF INTERNATIONAL LAW, 10th Anniversary Conference, Vienna, 4-6 September 2014, Conference Paper No. 10/2014. Available at SSRN: https://ssrn.com/abstract=2546185 or http://dx.doi.org/10.2139/ssrn.2546185

Gregory Messenger (Contact Author)

University of Liverpool ( email )

Chatham Street
Liverpool, L69 7ZA
United Kingdom

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