National Institute of Business Management

Chennai - 020
SECOND SEMESTER EMBA/MBA
Subject : International Law

Attend any 4 questions. Each question carries 25 marks

(Each answer should be of minimum 2 pages / of 300 words)

Q2. Explain the origin of international legal order.

The international system has changed dramatically in the years since the end of
the Cold War has become a common place. But which changes are most
profound, and what is their significance for international legal order? The last
decade of the twentieth century generated dozens of hooks and articles hailing a
transformed world order and interpreting its political, economic, and social
consequences. We have more distance now. The first years of this century have
underscored the significance of changes in the structure of international affairs
but they also demonstrate how difficult it is to interpret them with confidence.
The tradition of international law, across the globe, has been associated by more
than a century with a set of political and ethical commitments to
multilateralism, institutionalism, humanitarianism, liberalism in the broadest
sense. The international legal order was a focal point for some the last centurys
most fateful political dramas decolonization, human rights, arms control,
responses to genocide and environmental degradation as well as the site for any
number of more routine pragmatic endeavors laws of the sea, of the air, of

space. But not all problems of significance found their way onto the
international legal agenda. The world of trade and investment, the world of the
market, of development, of technological change these were largely constructed
outside public legal order. Public law has seemed innocent of the choices by
which the worlds wealth is distributed and of the instruments which bind the
worlds cultures.
WTO is an international organization that brings together two concepts of
international law. Leaving aside one or two specificities, it is a permanent
negotiating forum between sovereign states and is therefore a cooperation
organization akin to the international conferences under traditional international
law. But it also comprises a sophisticated dispute settlement mechanism which
makes it an integration organization, rooted in contemporary international law.
In simple terms, the WTOs sophisticated dispute settlement mechanism makes
it a distinctive organization.
Above all, the WTO comprises a true legal order. The WTO system has two
essential attributes: valid rules, and enforcement mechanisms. But the fact that
it is specific does not mean that it is insularized or isolated. These are firstly
how this legal system fits into the international legal order, and secondly, how it
links in with the other legal systems.
Origin & Sources of International law
The idea of international law as understood and practiced today owes its origins
and foundational principles to two sets of intertwined transnational movements
that radically reshaped European society during the late medieval period of
European history, between the 15th and 17th centuries.
The first was the overhaul of the place of religion in European political life.
Although varying from one society to another in its speed and particulars, this

movement saw justifications for power transform from appealing to the divine
and sacred to the mundane and secular; that is, from belief in righteously
anointed

rulers

to

leadership

based

on

functional

abilities.

These

transformations were fostered and facilitated by splits and breaches within the
institutions and power structures of religious institutions including the
emergence of Protestantism and of reform movements within the Roman
Catholic Church. This divorce of the legality of temporal power from religious
sanctification was enshrined in the Treaty of Westphalia in 1648, generally
taken as one of the preeminent constitutive documents of modern international
law.
The second late-medieval movement that gave rise to modern international law
was the fierce competition among European societies for maritime voyages of
discovery and the commerce that accompanied such discoveries. During the socalled age of discovery, European kingdoms and principalities vied to equip
entrepreneurial merchants, geographers, scientists, seafarers, and adventurers
who sailed the high seas to discover, conquer and trade with new lands in the
Americas, Africa and Asia. How to regulate this competition became an integral
element of international law-making.
Thus, while internal European religious fragmentation gave rise to and shaped
international law doctrines as secularism, sovereignty and self-determination,
the forces of externally driven competition contributed to other international law
doctrines such as those relating to the freedom of navigation on the high seas,
freedom of commerce, and the use of force. In turn, these generated exceptions,
and counter-exceptions, which resulted in the body of evolving doctrines and
principles that currently constitute international law.

The Sources of Origin:

The starting place and linchpin for comprehending international law is the
centrality of the role of the nation state in identifying, making and applying
rules of conduct and behavior in the international system. Indeed, prior to the
19th century, international law was commonly referred to as the laws of
nations.
i) From nation to individual
International law was viewed simply as the product of relations among nation
states, something made by and for the benefit of nation states. Its obligations,
duties and liabilities were assumed by nation states, and correspondingly, its
benefits, privileges and immunities redounded exclusively to the nation state.
However, as law increasingly tries to accommodate and reflect contemporary
socio-political realities, vibrant debates have emerged that seek to transcend this
rigid divide. There is no single categorical answer, and current answers are by
no means permanent. Central to an informed understanding of the available
range of answers is an appreciation of the sources of international law.
ii) Article 38 of the ICJ
Article 38 of the Statute of the International Court of Justice (ICJ) provides a
widely agreed upon set of standards for evaluating whether a statement
purporting to be a rule of international law is to be validly considered as
such[5]. Although Article 38 is addressed exclusively to the ICJ, which is in
itself entirely a creature of international law, it has become accepted that Article
38 provides the conceptual framework for ascertaining when a pronouncement
should be considered a legally-binding obligation rather than a statement of a
preferred value or norm.

According to Article 38, there are four sources of international law. These are
1)

Conventions or treaties to which a state is a party

2)

International custom or practice that international society has come to

accept as law

3)

The general principles of law that are recognized by civilized states

4)

The views of highly-qualified jurists writing on a point of law.

International lawyers seek to pigeonhole particular pronouncements into one or

more of these sources of legal legitimacy. Although at the margins these
elements or sources of international law are not without difficulty of
application, they nonetheless have reasonably well-settled meanings.
a) Conventions and Treaties
The most uniformly accepted source of international law is the convention or
treaty [6]. A treaty is an agreement between two or more countries. Treaties
come in numerous forms, from bilateral understandings between two friendly
states, to those that end world wars or create international arrangements like the
United Nations Organization. They cover the entire scope of human activities
from politics, economics and the arts to the sciences, agriculture, youth
exchanges and family relations. They vary in the level of formality and
solemnity with which they are concluded.
All that matters is that the parties entering into the treaty see themselves as
making commitments that other parties have a legal right on which to rely. Not
surprisingly then, although the existence of a treaty will rarely be beyond
dispute, occasionally disputes arise over whether an agreement or understanding
has been reached between two states, and if so, whether the parties intended to
make binding legal commitments to each other.

These and the several other issues that are presented by the pervasive part
played by treaties in international relations have been addressed in a treaty: the
1969 Vienna Convention on the Law of Treaties, otherwise known as the treaty
on treaties. Like any treaty, the terms of the Vienna Convention bind only those
who are parties to it, and some important members of the international society,
such as the United States, are not.
Among the core provisions of the Vienna Convention are the following:
Treaties are made only by and among states as defined under international law;
by signing a treaty,
A state undertakes to comply with its provisions in good faith and not to
undercut its purpose;
Once ratified (a process that occurs under the domestic laws of the ratifying
country) and notified to the other parties, a treaty imposes legal obligations
according to its terms on the ratifying party,
Creates internationally-recognized interests for all parties to the treaty; a treaty
should be interpreted by reference to its text which must be construed in light of
the treatys purpose or object;
The terms of a treaty should not be in conflict with certain peremptory norms of
international behavior, so-called jus cogens norms
Just as parties should not be forced by duress or fraud to enter into treaties, they
are also free to withdraw or renounce treaties, subject to the conditions for
withdrawal or renunciation contained in the treaty.

Central to the idea of treaty law creating legal obligations and rights is the view
of the state as a sovereign entity that is free to consent or withhold consent as it
deems fit. Ostensibly, treaties are voluntary undertakings which, once accepted,
signify a commitment to be bound, and create a reliance interest for other
parties.
b) Custom as a source of law
A second uniformly-accepted source of international law is customary
international law. There are three conditions under which the general behavior
of states becomes a rule of customary international law:
a) If the behavior is widespread,
b) Practices are followed over a not insignificant period of time, and
c) It s viewed by it is practitioners as mandated by law.
Nonetheless, some of the most venerated rules of international law either
originated as customary practices among states that were subsequently codified
as treaties, or continue to be derived from such custom. Increasingly, however,
the trend is less to transform customary laws into treaty law than the reverse.
Given the proliferation of treaties and the diversification of international society
from its West European cultural roots, those who want a uniform standard of
behavior among states increasingly look to treaties to extrapolate customary
law, often insisting it should be binding on all states regardless of participation
in a specific treaty regime. The result is some sort of a symbiosis between treaty
law and customary international law.
For evident reasons, ascertaining and applying customary international law in
specific situations is often problematic. However, procedural problems with its
crystallization process are not its gravest. The doctrine seemingly contradicts

the two established principles that undergird the treaty regime: sovereignty and
consent.
c) &d) General principles of law and the views of highly qualified publicists
The third broadly accepted source of international law is the so-called general
principles of law which is, in the phrasing of the Statute of the International
Court of Justice, recognized by civilized nations. The primary difficulty lies
in deciphering what this vague formulation actually means in specific cases.
If it is intended to incorporate no more than broad principles of law present in
all reasonably developed modern legal systems e.g. wrongs should have
remedies, claimants and defendants should be given fair opportunities to present
and defend their positions, decisions should be based on reasoned analysis of
evidence, and the decision-maker should be impartial it might be asked
whether the rule serves any useful purpose.
If the rule is intended to go beyond broad procedural niceties to impose
additional substantive obligations on states (other than those that may already
exist either under treaties or customary international law), then it is fair to ask
what those additional obligations might be. Perhaps here, one ought to read the
general principles of law source along with the fourth source cited in the ICJ
statute: the teachings of the most highly qualified publicists of international
law.
The function of ascertaining, sanctifying and legitimizing so-called general
principles of law may depend on the existence of consensus among highlyqualified international law scholars and jurists as to whether a particular
behavior or rule should be considered as mandated by international law,
independently of what states may have accepted or done. What is clear is that
the concept of general principles of law under international law is at best

underdeveloped. Whatever the intellectual underpinnings of international law

may be, it is difficult to imagine that this unrepresentative process for
fashioning general principles of law by appeal to the teachings of publicists
does not undercut its legitimacy as a tool of governance.
iii) Institutional sources of international law
The sources considered above are the explicitly stated formal sources of
international law. However, as a cultural institution, international law, like any
legal order, is dynamic and adaptable. It is fashioned by human beings to serve
their needs which vary with time, place and environment. A final source of
international law, then, must account for the human beings, institutions and the
contingencies of politics and economics that shape, interpret and deploy law to
serve particular ends. Such laws are less the product of specific rules, doctrines
or procedures than they are of the policy preferences of interested subgroups
within international society.
Sometimes applicable laws are ascertained less by a formalistic resort to written
texts and shared practices than they are by the needs of a particular group
power rather than reasoned analysis is here the coinage of rule-making.
Although Article 38 of the ICJ Statute may be silent about the place of power as
a source of law, no-one doubts that an agreed-upon policy of the United Nations
Security Council and indeed of each the five permanent members of the
Council may well constitute international law, even though such policy does
not receive the benediction of any one of the formal criteria.
A Unique Legal System within the International Legal Order:

The WTO is an international organization. This may seem obvious, and yet it
took over 50 years to achieve that result. This protracted effort to acquire a legal
existence has left its marks.
The General Agreement on Tariffs and Trade (GATT), which was replaced by
the WTO in 1994, was a provisional agreement that entered into force in
January 1948 and was to disappear with the treaty creating the International
Trade Organization. Since that treaty never entered into force, the GATT
remained, for a half a century, an agreement in simplified form which, in
principle, did not provide for any institutional continuity. Thus, the GATT did
not have Members but contracting parties, a term which highlighted the
purely contractual nature of the arrangement Without any international
organization in the strict sense of the term, and therefore without a separate
international legal personality, the GATT could only operate through its
Contracting parties and, for its every day work, with the support of the Interim
Commission for the International Trade Organization (ICTTO), a provisional
commission responsible for setting up the ITO.
Thus, it was almost 50 years later, with the Marrakesh Agreement, that a true
international organization was finally created, i.e., according to the definition
supplied by the International Law Commission in its draft articles on the
responsibility of international organizations, an organization established by a
treaty or other instrument governed by international law and possessing its own
international legal personality. In order to avoid any ambiguity, the Agreement
Establishing theWTO states in Article VIII that the Organization shall have legal
personality.
The implications of this status are numerous. The Marrakesh Agreement states
that Members shall accord the WTO such privileges and immunities as are
necessary for the exercise of its functions. Thus, its legal personality consists of

an international facet, which enables it to act at the international level, and an

internal personality, which enables it to conclude contracts for the purposes of
its day-to day operations and among other things to employ its six hundred
permanent staff members. As with all international organizations, the
competencies of the WTO are limited by the principle of specialty. But
alongside its subject-matter competence, which is explicitly provided for in its
constituent instrument, the WTO also has implicit competencies. Thus, the main
consequence of this status of international organization is that it enables the
WTO to have its own will which is expressed in a legislative output within the
limits fixed by its constituent instrument, and to interact with other international
players.
As a true international organization, the WTO now comprises an integrated and
distinctive legal order:
(l) It produces a body of legal rules
(2) Making up a system and
(3) Governing a community.
However, this integrated legal system is not clinically isolated. There is a
presumption of validity in international law and the rules of its treaties must
therefore be read in harmony with the principles of international law. Thus, the
WTO legal order respects, inter alia, the sovereign equality of States, good faith,
international cooperation, and the obligation to settle disputes peacefully, not to
mention the rules of interpretation of conventions which the Appellate Body, for
example, applies without hesitation. The WTO respects general international
law, while at the same time adapting it to the realities of international trade. In
joining the international legal order, the WTO has ended up producing its own
unique system of law.

Leaving aside the doctrinal debate on the autonomy of international economic

law, it is clear that WTO law is largely a circumstantial application of
international law in general.
Within a domestic legal order, hierarchy is established over time through the
exercise of political power. This hierarchy might emanate from foundational
constitutional arrangements, or it may be the result of extra-constitutional power
grabs; but in either event, the structure of authority within a domestic legal
order is both clear and hierarchical. This is important because of the certainty
that is derived from infallibility. That finality ultimately is backed up by the
coercive power of the state exerted through enforcement mechanisms.
There is no equivalent route to finality in the international system. International
rules are interpreted by a myriad of institutional actors acting more or less
independently of each other. There is no one institution whose pronouncements
override all others, and there is no enforcement system that guarantees
compliance. But this does not result in international rules being indeterminate or
rarely obeyed.
It does say, however, that the level of compliance that is brought about by the
existence of predictable and final rules is, at best, underwhelming. The
emerging role of national, regional and specialized international courts or
tribunals as interpreters and enforcers of international law may reduce some of
the gaps between the aspirations of international law and its practical
applications, but the chasm remains.
Put another way, the effectiveness of a legal order depends on the coherent
exercise of political power within a political community. Against constant
appeals to an international community, reality shows a society of national
political communities. It is neither a substitute for those communities, nor does

it operate independently of them. International law offers humanity at best a

hope for coordinating these varied legal orders.

-----------------------------------------------------------------------------------Q3. What are the integrated and distinctive legal order of WTO?
Explain.
WTO law is a body of legal rules making up a system and governing a
community. As such, the WTO incorporates an integrated and distinctive legal
order. Bringing together traditional international law, which it respects, and
contemporary international law, which it is helping to promote, the WTO has
become a part of the international legal order as a sin generis legal system. But
how does WTO law link up to the legal systems of other international
organizations within the international legal order?
The link between the legal system of the WTO and the legal systems of
other international organizations.
The effectiveness and legitimacy of the WTO depends on how it relates to
norms of other legal systems and on the nature and quality of its relationships
with other international organizations. In order to address more specifically the
place and the role of the WTOs legal system in the international legal order, I
will briefly discuss how the WTOs provisions operate and treat other legal
norms, including norms developed by other international organizations. My
focus will first address this issue from a normative point of view, and then from
an institutional perspective. I will show that the WTO, far from being
hegemonic as it is sometimes portrayed to be, recognizes its limited competence
and the specialization of other international organizations. In this sense the

WTO participates in the construction of international coherence and reinforces

the international legal order.
The WTO, its treaty provisions and their interpretation, confirms the absence of
any hierarchy between the WTO norms and those norms developed in other
fora. WTO norms do not supersede or trump other international norms.
In fact the GATT, and now the WTO, recognizes explicitly that trade is not the
oily policy consideration that Members can favour. The WTO contains various
exception provisions referring to policy objectives other than trade, often under
the responsibility of other international organizations. Our Appellate Body has
managed to operationalize these exception provisions so as to provide Members
with the necessary policy space to ensure if they do wish that their actions in
various fora are coherent.
The WTO is of course a trade organization; it comprises provisions that
favour trade opening and discipline trade restrictions. The basic philosophy of
the WTO is that trade opening obligations are good, and even necessary, to
increase peoples standards of living and well-being. But at the same time the
GAT1, and now the WTO, contains provisions of exceptions to these market
access obligations. The old but still in force Article XX of GATT provides that
nothing prevents a Member from setting aside market access obligations when a
Member decides, unilaterally, that considerations other than those of trade must
prevail. This can happen when, for instance, a Member has made commitments
in other fora, say on an environmental issue, when such an environmental
commitment may lead to market access restrictions.
The revolution brought about by WTO jurisprudence was to offer a new
teleological interpretation of the WTO that recognizes the place of trade in the

overall scheme of States actions and the necessary balance that ought to be
maintained between all such policies.
How is this done within the WTO legal order?
First, and very simply, the WTO treaty was considered and interpreted as a
treaty. In the very first WTO dispute, an environment related dispute (US
Gasoline) the Appellate Body concluded that the Panel had overlooked a
fundamental rule of treaty interpretation, expressed in the Vienna Convention on
the Law of Treaties (the Vienna Convention). I am sure this sounds very
obvious to you international legal experts! The Appellate Body first recalled that
these general rules on treaty interpretation had attained the status of a rule of
customary or general international law. It was important to do so because, as
you may know, neither the USA nor the EC have ratified the Vienna Convention
on Treaties. Then the Appellate Body made its first statement, now famous, on
the nature of the relationship between the WTO and the international legal
order: the GAIT is not to be read in clinical isolation from public international
law.
Recalling that pursuant to Article 31 of the Vienna Convention., terms of
treaties are to be given their ordinary meaning, in their context and in the light
of the Treatys object and purpose, the Appellate Body noted that the Panel
Report had failed to take adequate account of the different words actually used
for each of the Article XX exceptions. This led to a reading that offered much
more flexibility in the so-called environment exception and a categorical turn
about in 50 years of GATI jurisprudence.
In relying on the steps and principles of the Vienna Convention, panels as well
as the Appellate Body has since often referred to the context of the WTO
treaty and to non-WTO norms when relevant. Ive been told that no other

international dispute system is so attached to the Vienna Convent ion! In my

view, this insistence on the use of the Vienna Convention on Treaties is a clear
confirmation that the WTO wants to see itself being as fully integrated into the
international legal order as possible.
The linkage between the WTO and other sets of international norms was also
reinforced when the Appellate Body stated that in WTO, exception provisions
referring to such non-trade concerns (environment, morality, religion etc...)
are not to be interpreted narrowly: exceptions should be interpreted
according to the ordinary meaning of the terms of such exceptions. In this
context, our Appellate Body has insisted that exceptions cannot be interpreted
and applied so narrowly that they have no relevant or effective application.
The Appellate Body further expanded the availability of WTO exceptions in the
following manner. In WTO exceptions are subject to what we call a necessity
test, a test having features of a proportionality requirement. When assessing
whether a measure is necessary for any non-WTO concern, a new and
additional balancing test is to be used.
Such an assessment will have to balance first (1) the value protected by such
measure and the more important this value, the easier it will be to prove
the necessity (and the importance of the value will affect the entire balancing
process); second (2) the choice of the measure chosen to implement such a nontrade concern is it a complete or partial ban on trade? Is it a labeling
requirement? Is it a discriminatory tax? and finally a third element (3) the trade
impact of the restriction.
Once a measure prioritizing a non-trade value or standard is considered
necessary, there is always an assessment as to whether the measure is indeed
applied in a non-protectionist manner, pursuant to the chapeau of Article XX.

Here again the Appellate Body has said that when assessing whether a measure
complies with Article XX, a balance between WTO market access obligations
and a governments right to favor policies other than trade must always be kept.
Our jurisprudence has determined that the control exercised by the chapeau of
Article XX of GATT, against disguised protectionist measures, is in fact an
expression of the good faith general principle or an expression of the principle
against the abuse de droit. I quote the task of interpreting and applying the
chapeau is, hence, essentially the delicate one of locating and marking out a line
of equilibrium between the right of a Member to invoke an exception ... and the
rights of the other Members under varying substantive provisions The location
of the line of equilibrium, is not fixed and unchanging; the line moves as the
kind and the shape of the measures at stake vary and as the facts making up
specific cases differ.
WTO provisions themselves recognize the existence of non-WTO norms and
other legal orders and attempts to limit the scope of application of its own
provisions, thereby nourishing sustainable coherence within the international
legal order.
Another fundamental principle of the WTO is that Members can set national
standards at the level they wish, so long as such Members are consistent and
coherent. For example, in the dispute between Canada and the European
Communities over the importation of asbestos-related material, the Appellate
Body stated clearly that France was entitled to maintain its ban since it was
based on authentic health risks and standards recognized in other fora and no
alternative measures could guarantee zero risk as required by the EC regulation.
An additional feature of the WTO that confirms its integration into the
international legal order, is the legal value and status it provides to international

standards and norms developed in other fora. For instance, the Sanitary and
Phytosanitary (SPS) Agreement states that Members measures based on
standards developed in Codex Alimentarius, the International Office of
Epizootics and the International Plant Protection Convention are presumed to be
compatible with the WTO. So, while Codex and others do not by any means
legislate in the normal or full sense, the norms that they produce have a certain
authority in creating a presumption of WTO compatibility when such
international standards are respected. The SPS Agreement provisions thus
provide important incentives for States to base their national standards on, or
confirm their national standards to, international standards. Therefore the WTO
encourages Members to negotiate norms in other international fora which they
will then implement coherently in the context of the WTO.
The WTO does, take into account other norms of international law. Absent
protectionism, a WTO restriction based on non-WTO norms, will trump WTO
norms on market access. In so doing, it expands coherence between systems of
norms or legal order. Moreover, I believe that in leaving Members with the
necessary policy space to favour non-WTO concerns, the WTO also recognizes
the specialization, expertise and importance of other international organizations.
In sum, the WTO is well aware of the existence of other systems of norms and
that it is not acting alone in the international sphere.
Existing relations between the WTO and other international organizations again
reflect efforts of coherence within the international legal order. Now that the
WTO is an authentic international organization will full legal personality, it has
set up an important network of formal and de facto arrangements with other
actors on the international scene. The greater the coherence within the
international legal order, the stronger the international community.

The actual interactions between the WTO and other international organizations,
there are, for example, explicit WTO provisions on IMF/World Bank/WTO
coherence with an explicit mandate to the Director General. There exists a series
of inter-agency cooperation on technical assistance and capacity building with
several international organizations. Indeed the current Round of negotiation is to
some extent premised on coherence, as we are suggesting a new Aid-for-Trade
programme which brings together several multilateral organizations and
regional development banks to assist developing countries in reaping the
benefits of trade opening!
The formal cooperation agreements with other international organizations, For
example, in the area of standards setting, now have a mechanism The
Standards and Trade Development Facility involving the WTO, World Bank,
Food and Agriculture Organization (FAO), World Health Organization and the
World Organization for Animal Health. Some 75 international organizations
have obtained regular or ad hoc observer status in WTO bodies. The WTO also
participates as an observer in many international organizations. Although the
extent of such cooperation varies, coordination and coherence between the work
of the WTO and that of other international organizations continue to evolve in a
pragmatic manner. The WTO Secretariat maintains working relations with
almost 200 international organizations in activities ranging from statistics,
research, standard-setting, and technical assistance and training.
The WTOs mantra in favour of trade openness plays a vital role in Members
growth and development, but its not a panacea for all the challenges of
development, neither is it necessarily easy to accomplish, nor in many
circumstances can it be effective unless it is embedded in a supportive
economic, social and political context and a coherent multi-faceted policy
framework. Trade opening can only be politically and economically sustainable
if it is complemented by policies which address, at the same time, capacity

problems (whether human, bureaucratic or structural); the challenges of

distribution of the benefits created by freer trade; the need for sustainable
environment; the respect of public morals, etc. This is also about international
legal coherence.
All these policies are intertwined with the other treaty obligations of WTO
Members. So further international coherence will only assist in getting the best
out of the WTO! Since WTO norms are not hierarchically superior or inferior to
any other norms (except jus cogens) States must find ways to coordinate all
these policies in a coherent manner. I believe that the WTO favours and
encourages such coherence.
If the WTO, through its dispute settlement system, can show that it does take
into account the norms of other legal orders, many still challenge the fact that it
will be for the WTO judge to determine the balance, the line of equilibrium
between trade norms and norms of other legal orders. Indeed, at present, if a
measure has an impact on trade, the matter can always be taken to the WTO
dispute settlement system fairly simply and quickly. The WTO adjudicating
body will then have to determine whether the trade restriction can find
justification in the exception provisions of the WTO. In assessing the invocation
of such WTO exception justification, the WTO judge may in fact be deciding on
the relative hierarchical value between two sets of norms.
Indeed, if a WTO Member invokes the environment exception to justify a trade
restriction adopted pursuant to a multilateral environment agreement (MEA), in
practice, it is the WTO judge who will determine whether, and the extent to
which, compliance with such an MEA can provide a WTO justification for trade
restriction, If, in support of its invocation of the WTO exception for public
morals, a Member points to an International Labor Organization (ILO)
resolution condemning a specific State for violation of core labour standards, it

is the WTO judge who will end up deciding on the legal value
and impact of such an ILO resolution on international trade and its opposability
to trade rules.
======================================================

Q4. Explain International court of Justice.

According to Article 92 of UN Charter, ` The International Court of Justice shall
be the principal judicial organ of the United Nations. It was established in June
1945 by the Charter of the United Nations and began work in April 1946.
Article 7 and Article 92 of UN Charter are relevant to the Introduction. It shall
function in accordance with the annexed Statute, which is based upon the
Statute of the Permanent Court of International Justice and forms an integral
part of the present Charter. ` The International Court of Justice is distinguished
from its predecessor, the Permanent Court of International Justice (1922-1946).
Article 38(1) is generally recognized as a definitive statement of the sources of
international law. It requires the Court to apply inter alia, (a) international
conventions expressly recognized by the contesting states, and (b)
international custom, as evidence of a general practice accepted as law. To
avoid the possibility of non liquet, sub-paragraph (c) added the requirement that
the general principles applied by the Court were those that had been the
general principles of the law recognized by civilized nations. As it is states that
by consent determine the content of international law, sub-paragraph (d)
acknowledges that the Court is entitled to refer to judicial decisions and
juristic writings as subsidiary means for the determination of rules of law.
On the question of preference between sources of international law, rules
established by treaty will take preference if such an instrument exists. It is also
argued however that international treaties and international custom are sources

of international law of equal validity; this is that new custom may supersede
older treaties and new treaties may override older custom. Certainly, judicial
decisions and juristic writings are regarded as auxiliary sources of international,
whereas it is unclear whether the general principles of law recognized by
civilized nations should be recognized as a principal or auxiliary source of
international law.
It may be argued that the practice of international organizations, most notably
that of the United Nations, as it appears in the resolutions of the Security
Council and the General Assembly, are an additional source of international law,
even though it is not mentioned as such in Article 38(1) of the 1946 Statute of
the International Court of Justice. It should be noted that Article 38(1) is closely
based on the corresponding provision of the 1920 Statute of the Permanent
Court of International Justice, thus predating the role that international
organizations have come to play in the international plane. That is, the provision
of Article 38(1)may be regarded as dated, and this can most vividly be seen in
the mention made to civilized nations, a mentioning that appears all the more
quaint after the decolonization process that look place in the early 1960s and the
participation of nearly all nations of the world in the United Nations.
It is also possible though less common, for a treaty to be modified by practices
arising between the parties to that treaty. The other situation in which a rule
would take precedence over a treaty provision would be where the rule has the
special status of being part of the jus cogens.
The Court is a Permanent International Institution
In terms of Article 22, paragraph 1, of the Statute, "the seat of the Court shall
be established at The Hague", a city, this is also the seat of the Government of
the Netherlands. The Court may, if it considers it desirable, hold sittings

elsewhere, but this has never been proposed. The Court thus continues to
occupy premises in the Peace Palace, which are placed at its disposal by the
Carnegie Foundation of the Netherlands in return for a payment by the United
Nations. The International Court of Justice is an independent body. Its work is
directed and its administration supervised by its President, assisted by a
Budgetary and Administrative Committee, a Committee on Relations and a
Library Committee, all of them composed of Members of the Court. The VicePresident takes the place of the President if the latter is unable to fulfill his
duties or if the office of President is vacant, and for this purpose he receives a
daily allowance. In the absence of the Vice-President, this role devolves upon
the senior judge.
Origin of International Court of Justice
The creation of the Court represented the culmination of a long development of
methods for the pacific settlement of international disputes, the origins of which
can be said to go back to classical times. Article 33 of the United Nations
Charter lists the following methods for the pacific settlement of disputes
between States: negotiation, enquiry, mediation, conciliation, arbitration,
judicial settlement, and resort to regional agencies or arrangements, to which
good offices should also be added. Among these methods, certain involve
appealing to third parties. For example, mediation places the parties to a dispute
in a position in which they can themselves resolve their dispute thanks to the
influence of a third party. Arbitration goes further, in the sense that the dispute is
in fact submitted to the decision or award of an impartial third party, so that a
binding settlement can be achieved.

Aim of the Court

The Courts role is to settle, in accordance with international law, legal disputes
submitted to it by States and to give advisory opinions on legal questions
referred to it by authorized United Nations organs and specialized agencies.
Composition of the Court
General Assembly and Security Council shall elect the members of the Court.
For obvious practical reasons, the number of judges cannot be equal to that of
those States. According to Article 3(1). `The Court shall consist of fifteen
members, no two of whom may be nationals of the same state`. It was fixed at
15 when the revised version of the Statute of the PCIJ that came in force in
1936 was drafted, and has since remained unchanged, despite occasional
suggestions that the number be increased. Under Article 13, the term of a judge
is 9 years. In order to ensure a certain measure of continuity, one-third of the
Court, i.e., five judges, is elected every three years. Judges are eligible for reelection. If a judge dies or resigns during his term of office, a special election is
held as soon as possible to choose a judge to fill the un-expired part of his term
of office.
Election of Members of ICJ
Article 4
Election of President and Vice President
Article 21
Present Composition of International Court of Justice
President

Rosalyn Higgins (United Kingdom of Great Britain and Northern Ireland)

Vice-President
Awn Shawkat Al-Khasawneh (Jordan)
Judges
Raymond Ranjeva
Shi Jiuyong

(Madagascar)

(China)

Abdul G. Koroma

(Sierra Leone)

Gonzalo Parra-Aranguren
Thomas Buergenthal

(United States of America)

Hisashi Owada

(Japan)

Bruno Simma

(Germany)

Peter Tomka

(Slovakia)

Ronny Abraham
Kenneth Keith

(Venezuela)

(France)
(New Zealand)

Bernardo Seplveda-Amor
Mohamed Bennouna
Leonid Skotnikov

(Mexico)

(Morocco)

(Russian Federation)

Qualification of Judge
According to UN charter, the person who is entitled to highest judicial office in
their respective countries or most renowned legal scholar is eligible to become
the judge of International Court of Justice. The judges must possess the
qualifications required in their respective countries for appointment to the highest
judicial offices, or be jurists of recognized competence in international law. The
composition of the Court has also to reflect the main forms of civilization and the
principal legal systems of the world.
Who can bring Cases before International Court of Justice?
Only States may apply to and appear before the Court. The Member States of
the United Nations (at present numbering 191) are so entitled.
Article 35, paragraph 1, of the Statute provides that the Court shall be open to
the States parties to the Statute, and Article 93, paragraph 1, of the Charter of
the United Nations provides that all Members of the United Nations are ipso
facto parties to the Statute.
Article 93(2) of the Charter of the United Nations makes provision for States,
who are non-members of the United Nations, to become parties to the Statute of
the Court, under conditions determined in each case by the General Assembly,
on recommendation from the Security Council.
The Court, which is open to States parties to the Statute, is also open to other
States, in accordance with Article 35(2) of the Statute. This Article provides that
the conditions upon which the Court shall be open to such States shall, subject
to the special provisions contained in treaties in force, be laid down by the
Security Council, but in no case shall such conditions place the parties in a
position of inequality before the Court.

Basis of the Courts Jurisdiction

The Court is competent to entertain a dispute only if the States concerned have
accepted its jurisdiction. The form in which this consent is expressed determines
the manner in which a case may be brought before the Court.
(a) Special agreement
Article 36, paragraph 1, of the Statute provides that the jurisdiction of the Court
comprises all cases, which the parties refer to it. Such cases normally come
before the Court by notification to the Registry of an agreement known as a
special agreement and concluded by the parties especially for this purpose. The
subject of the dispute and the parties must be indicated.
(b) Cases provided for in treaties and conventions
By virtue of a jurisdictional clause, i.e., typically, when they are parties to a
treaty obtaining a provision whereby, in the event of a disagreement over its
interpretation or application, one of them may refer the dispute to the Court.
Several hundred treaties or conventions contain a clause to such effect
(c) Compulsory jurisdiction in legal disputes
Through the reciprocal effect of declarations made by them under the Statute
whereby each has accepted the jurisdiction of the Court as compulsory in the
event of a dispute with another State having made a similar declaration.
The declarations of 65 States are at present in force, a number of them having
been made subject to the exclusion of certain categories of dispute.
(d) The Court itself decides any questions as to its jurisdiction

Article 36, paragraph 6, of the Statute provides that in the event of a dispute as
to whether the Court has jurisdiction, the matter shall be settled by the decision
of the Court. Article 79 of the Rules lays down the conditions, which govern the
filing of preliminary objections.
(e) Interpretation of a judgment
Article 60 of the Statute provides that in the event of dispute as to the meaning
or scope of a judgment, the Court shall construe it upon the request of any party.
The request for interpretation may be made either by means of a special
agreement between the parties or of an application by one or more of the
parties.
(f) Revision of a judgment
An application for revision of a judgment may be made only when it is based
upon the discovery of some fact of such a nature as to be a decisive factor,
which fact was, when the judgment was given, unknown to the Court and also
to the party claiming revision, always provided that such party's ignorance was
not due to negligence. A request for revision is made by means of an
application.
ICJ/ Different types of courts jurisdiction
Voluntary Jurisdiction
Cases referred to ICJ on mutual understanding of the parties
Compulsory Jurisdiction

Article 36 (2) of the statue of ICJ conferred that the parties to the statute may at
any time declare that they recognize as compulsory ipso fecto and without
special agreement, in relation to any other state accepting the same obligations.
Advisory Jurisdiction
The Court has a dual role: to settle in accordance with international law the
legal disputes submitted to it by States, and to give advisory opinions on legal
questions referred to it by duly authorized international organs and agencies.
The advisory procedure of the Court is open solely to international
organizations. The only bodies at present authorized to request advisory
opinions of the Court are five organs of the United Nations and 16 specialized
agencies of the United Nations family.
On receiving a request, the Court decides which States and organizations might
provide useful information and gives them an opportunity of presenting written
or oral statements. The Court's advisory procedure is otherwise modeled on that
for contentious proceedings, and the sources of applicable law are the same. In
principle the Court's advisory opinions are consultative in character and are
therefore not binding as such on the requesting bodies. Certain instruments or
regulations can, however, provide in advance that the advisory opinion shall be
binding.
The International Court of Justice, which sits at The Hague in the Netherlands,
acts as a world court. It decides in accordance with international law disputes of
a legal nature submitted to it by States, whilst in addition certain international
organs and agencies are entitled to call upon it for advisory opinions. It was set
up in 1945 under the Charter of the United Nations to be the principal judicial
organ of the Organization, and its basic instrument. The International Court of
Justice is to be distinguished from its predecessor, the Permanent Court of

International Justice (1922-1946). To avoid confusion, in references to cases

decided by the two Courts, an asterisk has been placed before the names of
cases decided by the Permanent Court of International Justice. The
abbreviations IC and PCU are used respectively to designate the two Courts.
International courts are formed by treaties between nations, or under the
authority of an international organization such as the United Nations this
includes ad hoc tribunals and permanent institutions, but excludes any courts
arising purely under national authority. Therefore under these circumstances the
international courts receive immunities and privileges around the world.

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Q5. Explain how treaty obligations are ended.

International courts are formed by treaties between nations, or under the
authority of an international organization such as the United Nations. A treaty is
an express agreement under international law entered into by actors in
international law, namely sovereign states and international organizations. A
treaty may also be known as an (international) agreement, protocol, covenant,
convention or exchange of letters, among other terms. Regardless of
terminology, all of these forms of agreements are, under international law,
equally considered treaties and the rules are the same. Treaties can be loosely
compared to contracts: both are means of willing parties assuming obligations
among themselves, and a party to either that fails to live up to their obligations
can be held liable under international law.

Treaty obligations can be ended by:

Withdrawal
Treaties are not necessarily permanently binding upon the signatory parties. As
obligations in international law are traditionally viewed as arising only from the
consent of states, many treaties expressly allow a state to withdraw as long as it
follows certain procedures of notification. Many treaties expressly forbid
withdrawal. Other treaties are silent on the issue, and so if a state attempts
withdrawal through its own unilateral denunciation of the treaty, a determination
must be made regarding whether permitting withdrawal is contrary to the
original intent of the parties or to the nature of the treaty. Human tights treaties,
for example, are generally interpreted to exclude the possibility of withdrawal,
because of the Importance and permanence of the obligations. If a state partys
withdrawal is successful, its obligations under that treaty are considered
terminated, and withdrawal by one party from a bilateral treaty of course
terminates the treaty. When a state withdraws from a multi-lateral treaty, that
treaty will still otherwise remain in force between the other parties, unless, of
course, otherwise should or could he interpreted as agreed upon between the
remaining states parties to the treaty.
Suspension and Termination
If a party has materially violated, or breached, its treaty obligations, the other
parties may invoke this breach as grounds for temporarily suspending their
obligations to that party under the treaty. A material breach may also be invoked
as grounds for permanently terminating the treaty itself.
A treaty breach does not automatically suspend or terminate treaty relations,
however. The issue must be presented to an international tribunal or arbiter
(usually specified in the treaty itself) to legally establish that a sufficiently

serious breach has in fact occurred. Otherwise, a party that prematurely and
perhaps wrongfully suspends or terminates its own obligations due to an alleged
breach itself runs the risk of being held liable for breach. Additionally, parties
may choose to overlook treaty breaches while still maintaining their own
obligations towards the party in breach.
Treaties sometimes include provisions for self-termination, meaning that the
treaty is automatically terminated if certain defined conditions are met. Some
treaties are intended by the parties to be only temporarily binding and are set to
expire on a given date. Other treaties may terminate if a defined event occurs if
the treaty is meant to exist only under certain conditions or in the absence
thereof.
A party may claim that a treaty should be terminated, even absent an express
provision, if there has been a fundamental change in circumstances. Such a
change is sufficient if it was unforeseen, if it undermined the essential basis of
consent by a party, if it radically transforms the extent of obligations between
the parties, and if the obligations are still to be performed. A party cannot base
this claim on change brought about by its own breach of the treaty. This claim
also cannot be used to invalidate treaties that established or redrew political
boundaries.
Invalid Treaties
There are several reasons an otherwise valid and agreed upon treaty may be
rejected as a binding international agreement, most of which involve errors at
the formation of the treaty.
Ultra Vires Treaties

A partys consent to a treaty is invalid if it was given by an agent or body

without power to do so under that states domestic law. States are reluctant to
inquire into the internal affairs and processes of other states, and so a manifest
violation is required such that it would be objective1y evident. To any State
dealing with the matter. A strong presumption exists internationally that a head
of state has acted within his proper authority. It seems that no treaty has ever
actually been invalidated on this provision.
Consent is also invalid if it is given by a representative who ignored restrictions
he is subject to by his sovereign during the negotiations, if the other parties to
the treaty were notified of those restrictions prior to his signing.
Misunderstanding, Fraud, Corruption, Coercion :
Articles 46-53 of the Vienna Convention set out the only ways that treaties can
be invalidated, considered unenforceable and void under international law. A
treaty will be invalidated due to either the circumstances by which a state party
joined the treaty, or due to the content of the treaty itself. Invalidation is
separate from withdrawal. Suspension, or termination (addressed below), which
all involve an alteration in the consent of the parties of a previously valid treaty
rather than the invalidation of that consent in the first place.
A states consent may be invalidated if there was an erroneous understanding of
a fact or situation at the time of conclusion, which formed the essential basis
of the states consent. Consent will not be invalidated if the misunderstanding
was due to the states own conduct, or if the in the truth should have been
evident.
Consent will also be invalidated if it was induced by the fraudulent conduct of
another party, or by the direct or indirect corruption of its representative by
another party to the treaty. Coercion of either a representative, or the state itself

through the threat or use of force, if used to obtain the consent of that state to a
treaty, will invalidate that consent.
Peremptory Norms
A treaty is null and void if it is in violation of a peremptory norm. These norms,
unlike other principles of customary law, are recognized as permitting no
violations and so cannot be altered through treaty obligations. These are limited
to such universally accepted prohibitions as those against genocide, slavery,
torture, and piracy, meaning that no state can legally assume an obligation to
commit or permit such acts.