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Citation: 95 Am. J. Int'l L. 535 2001

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THE ROLE OF PUBLIC INTERNATIONAL LAW IN THE WTO: HOW FAR CAN WE GO? ByJoost Pauwelyn" How does the World Trade Organization (WTO) relate to the wider corpus of public international law? What, in turn, is the role of public international law in WTO dispute settlement? This paper aims at resolving these two difficult questions. No straightforward answers to them can be found in WTO rules. Yet answering them has major ramifications both for the WTO (is the WTO a largely "self-contained regime" or is it not?2) and for international law (is the future of international law further fragmentation or increased unity?'). This exercise will be conducted under the law as it stands today-that is, the law as it may be invoked at present before the WTO 'Judiciary" (panels and the Appellate Body). Of course, WTO members (viz., the WTO "legislator") could clarify or change the relationship between WTO rules and other rules of international law. 4 However, it is unlikely that such changes will occur any time soon. In part I, I examine the general relationship between public international law and WTO law. I then assess, more specifically, the role of public international law in WTO dispute settlement in part II and offer some conclusions in part II. I. THE WTO AS A PART OF PUBLIC INTERNATIONAL LAW

Law The Creation andInterplay of Rules in PublicInternational International law, unlike domestic legal systems, is "decentralized" in that it has no central legislator creating its rules. The creators of international law are at the same time the main subjects of international law, namely states. States as subjects of international law, unlike individuals in domestic law, do not elect an "international legislator," which is then mandated to make law on their behalf.' Moreover, states as creators of law are complete equals. * University of Neuchatel, Switzerland; on leave from the WTO Secretariat, Legal Affairs Division ( I am extremely grateful to Petros Mavroidis, Gabrielle Marceau, PieterJan KuijperJoel Trachtman, Lorand Bartels, Mariano Garcfa Rubio, Alan Boyle, and Erik Wijkstrom for sharing their ideas and comments with me on this topic. The opinions expressed are strictly personal. All errors, of course, remain mine. ' The notion "XVTO rules" is used here to denominate all rules of law created in the context of the WTO, not just those in the so-called WTO covered agreements listed in Appendix 1 to the Understanding on Rules and Procedures Governing the Settlement of Disputes [hereinafter DSU]. Marrakesh Agreement Establishing the World Trade Organization, Apr. 15,1994, THE RESULTS OF THE URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIATIONs: THE LEGAL. TEXTS 6 (1995) [hereinafter LEGAL TEXTS], reprintedin 33 ILM 1144 (1994) [hereinafter WTO Agreement]. For the DSU, Apr. 15, 1994, see WTO Agreement, Annex 2, LEGAL TEXTS, supra, at 404, repinted in 33 ILM at 1226. See also infra note 37. 2 See PieterJan Kuijper, The Law of GATT as a Special Field ofInternational Law, 1994 NETH. Y.B. INT'L L. 227; Bruno Simma, Self-ContainedRegimes, 1985 NETH.Y.B. INT'L L. 111. ' SeeJonathan I. Charney, Is InternationalLaw Threatened by Multiple InternationalTribunals?271 RECUIL DES 44INT'L& COMP. CoURS [RC.A.D.I.] 101 (1998); Gilbert Guillaume, TheFutureofInternationalJudicialInstitutions, L.Q. 848 (1995); Benedict Kingsbury, Foreword:Is the...
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