Ole Kr. Fauchald For what purposes do we use treaties?

Ole Kr. Fauchald Purposes of treaties n Illustrate the development from contractual towards law making treaties 1. Prevent or solve bilateral disputes – boundary treaties 2. Bilateral or multilateral cooperation on specific issues – common infrastructure projects 3. Bilateral or multilateral cooperation on general issues – postal services, international transportation, facilitation of economic activities 4. Solve common problems – environmental, weapons of mass destruction 5. Codify rules of customary international law – ”secondary” rules 6. Establish common minimum standards of treatment – human rights 7. Harmonisation of domestic policies – intellectual property rights 8. Set up institutional structures – ”constitutional” rules

Ole Kr. Fauchald The development of treaty law n The increase in issues subject to treaty law ä Inherently international issues vs. inherently domestic issues – ”globalisation” ä Establishment and role of international institutions ä A systematic overview of topics – treaty collection n The nature of treaty obligations ä From obligations to cooperate and institutional rules to obligations of conduct ä The use of soft law instruments ä Ability to comply vs. willingness to comply n The nature of enforcement mechanisms ä From general multilateral discussions to international tribunals ä From reciprocal measures to multilateral sanctions

Ole Kr. Fauchald The need to coordinate treaties n Avoid legal conflicts ä When is there a legal conflict between treaties? n Prevent overlap ä Kinds of overlap –Overlapping subject areas –Global vs. regional treaties ä Avoid situations where treaties undermine the effectiveness of other treaties ä ”Forum shopping” n Making treaties ”mutually supportive” ä The search for win-win opportunities

Ole Kr. Fauchald Strategies to coordinate treaties n Institutional coordination ä Why do we not create institutions that contribute to improved coordination? ä The domestic vs. the international level n Procedural measures ä Transparency ä Impact assessments n During the negotiation phase ä Starting point – domestic coordination ä Depends on existence of multilateral institutions n After establishment ä Transfer to the international level ä Institutional autonomy – secretariats, implementation and compliance mechanisms, tribunals

Ole Kr. Fauchald How to solve conflicts n The use of ”savings clauses” ä Preambular vs. provision in treaty ä General vs. prospective / subject specific n Lex superior – primary rule ä Vertical elements in treaty law ä UN Charter – how far does it extend? ä Codification of jus cogens – VCLT Art. 53, Draft Articles on State Responsibility Art ä Law making vs. contractual treaties – the concept of erga omnes – Draft Articles Art. 48 n Lex posterior – subsidiary rule ä Art. 30 of VCLT ä Protocols, annexes and amendments n Lex specialis – subsidiary rule ä ”Primary” and ”secondary” rules, Draft Articles Art. 55 ä Area of application vs. legal consequences

Ole Kr. Fauchald Case study – int’l trade law 1 n Regulatory structure of the WTO ä International trade in goods –Multilateral regulation attempted in the 1920s-30s –Havana Charter and GATT ä International trade in services –Link to goods, but major differences –Multilateral regulation in WTO ä International investment –Link to goods and services –Limited regulation in WTO –Multilateral agreement attempted in OECD ä Intellectual property rights –Made part of WTO –Multilateral regulation dating from 1880s – WIPO

Ole Kr. Fauchald Case study – int’l trade law 2 n Institutional structure ä Main bodies of the WTO –Ministerial Council –General Council –Councils for goods, services and IPR –Secretary General ä Decision-making –Tradition of consensus, but majority vote is available –Amendments – rounds of negotiation –Interpretation –Waivers –Use of ”soft law” ä Implementation and dispute settlement –Notifications, discussions in Councils, Trade Policy Review Mechanism, dispute settlement with possibility of appeal

Ole Kr. Fauchald Case study – int’l trade law 3 n The nature of WTO – from contractual to law-making ä Initial focus on tariffs ä Maintain value of tariff concessions – need for regulating other trade restrictions ä Trade facilitation regardless of tariff concessions ä Rounds of negotiations ä Structure of negotiations ä Essential factors of development –Number and nature of members –Dispute settlement –Organisational structure –Introduction of the ”trade and …” issues –Adding services and intellectual property rights –Competition with bilateral and regional agreements

Ole Kr. Fauchald Case study – int’l trade law 4 n Vertical coordination – the relationship to bilateral and regional trade instruments ä Regionalism vs. global rules ä Progressive development of international trade law ä The most-favoured-nation obligations – the assessment of bilateral and regional treaties ä Forum shopping – e.g. competition between dispute settlement mechanisms

Ole Kr. Fauchald Case study – int’l trade law 5 n Horisontal coordination – the need for coordination ä The ”trade and …” issues – environment, labour, human rights –Conflicts / undermining / mutual supportiveness –Inherent conflict between developed and developing countries? –Race to the bottom? ä Institutional competition –Trade and intellectual property rights ä ”Reference” to specialised institutions –Harmonisation of product requirements etc.

Ole Kr. Fauchald Case study – int’l trade law 6 n Coordination ä At the inter-institutional level –WTO and the UN –Formal cooperation – inter-institutional agreements –Observer status –Informal cooperation –”Strong” vs. ”weak” institutions – WTO vs. MEAs ä At the inter-country level –Constellation of countries –Different branches of government – informal ä At the country level –Capacity to coordinate –Mechanisms for coordination –The role of the ministry of foreign affairs –Communication between permanent representations and domestic institutions –Transparency

Ole Kr. Fauchald Case study – int’l trade law 7 n Specific issues related to dispute settlement ä The use of the dispute settlement mechanism –Effectiveness from the perspective of the claimant –Availability of alternative mechanisms –Elimination of political control in certain countries – the US and the EU ä Jurisdictional issues –”Self-contained regime”? –Application of external rules –Interpretation of WTO rules in light of external rules – Art. 31.3(c) of the VCLT –Relationship to the International Court of Justice