Flexibility in International Economic Law vs. Pacta Sunt Servanda: Maintaining Legitimacy Over Time

Democracy and Globalization: Legal and Political Analysis on the Eve of the 4th Industrial Revolution, Charlotte Sieber-Gasser & Alberto Ghibellini (eds.), Springer/Cham, 2021.

18 Pages Posted: 4 May 2021

See all articles by Charlotte Sieber-Gasser

Charlotte Sieber-Gasser

Geneva Graduate Institute, Centre for Trade and Economic Integration; University of Zurich - Faculty of Law

Date Written: April 26, 2021

Abstract

Pacta sunt servanda is a key principle in international law, which ensures order, stability and legal security in international relations. It renders commitments in international law generally binding unless a country decides to withdraw from them. This paper argues that the protection of market access rights requires considerable flexibility in order to remain suitable for the strict application of the principle pacta sunt servanda, since market realities change quickly, therewith altering the nature of corresponding international obligations. With regard to the interpretation of the legal scope of, in particular, the general exception clauses in international economic law, otherwise inconsistent trade measures originating in a popular vote qualify in principle as ‘necessary for the protection of public morals’ (within the meaning of GATT Art. XX(a) or GATS Art. XIV(a)). Reverting to majority decisions in a popular vote on most pressing concerns regarding trade policy would, thus, provide a legal way of mending the gap between international economic law and governance of trade-related issues.

Keywords: WTO, Democracy, GATT, Public Morals, Popular Vote, Exceptions

JEL Classification: K33

Suggested Citation

Sieber-Gasser, Charlotte, Flexibility in International Economic Law vs. Pacta Sunt Servanda: Maintaining Legitimacy Over Time (April 26, 2021). Democracy and Globalization: Legal and Political Analysis on the Eve of the 4th Industrial Revolution, Charlotte Sieber-Gasser & Alberto Ghibellini (eds.), Springer/Cham, 2021., Available at SSRN: https://ssrn.com/abstract=3834258 or http://dx.doi.org/10.2139/ssrn.3834258

Charlotte Sieber-Gasser (Contact Author)

Geneva Graduate Institute, Centre for Trade and Economic Integration ( email )

Chemin Eugène-Rigot 2A
Geneva, CH-1211
Switzerland

University of Zurich - Faculty of Law ( email )

Rämistrasse 71
Zürich, CH-8006
Switzerland

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