For what purposes do we use treaties?

1. For what purposes do we use treaties?

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

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

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

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

6. How to solve conflicts • The use of ”savings clauses” • Preambular vs. provision in treaty • General vs. prospective / subject specific • Lex superior – primary rule • Vertical elements in treaty law • UN Charter – how far does it extend? • Codification of jus cogens – VCLT Art. 53, Draft Articles on State Responsibility Art. 40-1 • Law making vs. contractual treaties – the concept of erga omnes – Draft Articles Art. 48 • Lex posterior – subsidiary rule • Art. 30 of VCLT • Protocols, annexes and amendments • Lex specialis – subsidiary rule • ”Primary” and ”secondary” rules, Draft Articles Art. 55 • Area of application vs. legal consequences

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

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

9. Case study – int’l trade law 3 • The nature of WTO – from contractual to law-making • Initial focus on tariffs • Maintain value of tariff concessions – need for regulating other trade restrictions • Trade facilitation regardless of tariff concessions • Rounds of negotiations • Structure of negotiations • 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

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

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

12. Case study – int’l trade law 6 • Coordination • 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 • At the inter-country level • Constellation of countries • Different branches of government – informal • 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

13. Case study – int’l trade law 7 • Specific issues related to dispute settlement • 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 • 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