INTERNATIONAL
December, 25
LAW
LECTURE NOTES
---------------------------------------------
, CONTENTS
Chapter Title Page No.
I THE ORIGIN OF THE INTERNATIONAL 5
LEGAL ORDER AND ITS NATURE
II THE SOURCES OF INTERNATIONAL LAW 19
III INTERNATIONAL ORGANISATIONS 36
IV INDIVIDUALS AND PRIVATE CORPORATIONS 42
V TREATIES 52
VI INTERNATIONAL HUMAN RIGHTS LAW 61
VII INSTITUTIONS OF INTERNATIONAL CRIMINAL LAW 99
, CHAPTER - I
THE ORIGIN OF THE INTERNATIONAL
LEGAL ORDER AND ITS NATURE
O BJECTIVE
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 interna-
tional law. But it also comprises a sophisticated dispute settlement mechanism which makes it an inte-
gration organization, rooted in contemporary international law. In simple terms, the WTO’s sophisti-
cated dispute settlement mechanism makes it a distinctive organization.
Above all, the WTO comprises a true legal order. If we go by professor Jean Salmon’s defini-
tion, “a body of rules of law constituting a system and governing a particular society or grouping”, we
see that there exists, within the international legal order, a specific WTO 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 OF INTERNATIONAL LAW
Trade is at the origin of entire segments of public international law, and accounts for one of its
main sources: the treaty. Indeed, one of the first international legal instruments to leave its trace in
history was the commercial treaty between Amenophis IV and the king of Alasia (Cyprus) during the
XIV century BC. This treaty exempts Cypriot traders from customs duty in exchange for the importa-
tion of a certain quantity of copper and wood. Nothing has fundamentally changed since: at the begin-
ning of the XXI century AD we still have bilateral trade agreements. But they now have to be notified to
the WTO where they are checked for consistency with international trade rules.
The international legal order, on the other hand, has evolved dramatically. The great empires
have disappeared into history. Philippe le Bel and Jean Bodin’s jurists progressively conceptualized the
notion of sovereignty, the treaties of Westphalia ushered in the pre-eminence of a society of sovereign
States, the Congress of Vienna of 1815 laid the foundations of multilateralism, and the XIX century
invented the first international organizations. With the creation of the League of Nations followed by the
United Nations system, and finally, with the disintegration of the Eastern Bloc, the XX century saw the
evolution of traditional international law between States towards a contemporary and universal interna-
tional law open to new players such as the international organizations and the non-governmental orga-
nizations.
Thus, the international legal order has gone through a number of upheavals. But its evolution
has been neither linear nor homogenous - which is why international society still bears the marks of
several historical stages of the process.
5
, 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 GATT, which was replaced by the WTO in 1994, was a provisional agreement that en-
tered 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 contrac-
tual 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 (ICITO), 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 inter-
national legal personality”. In order to avoid any ambiguity, the Agreement Establishing the WTO 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 speciality. 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: (1)it produces a body of legal rules (2) making up a system and (3)governing a community .
(1) A body of legal rules, first of all. The WTO is a treaty comprising some 500 pages of text accom-
panied by more than 2,000 pages of schedules of commitments. Moreover, 50 years worth of
GATT practice and decisions — what we call the “GATT acquis” — have been incorporated in
what constitutes the new WTO treaty. WTO rules are regularly renegotiated. While it is true that
the WTO Secretariat and the WTO bodies do not have any general power to adopt formally
6
December, 25
LAW
LECTURE NOTES
---------------------------------------------
, CONTENTS
Chapter Title Page No.
I THE ORIGIN OF THE INTERNATIONAL 5
LEGAL ORDER AND ITS NATURE
II THE SOURCES OF INTERNATIONAL LAW 19
III INTERNATIONAL ORGANISATIONS 36
IV INDIVIDUALS AND PRIVATE CORPORATIONS 42
V TREATIES 52
VI INTERNATIONAL HUMAN RIGHTS LAW 61
VII INSTITUTIONS OF INTERNATIONAL CRIMINAL LAW 99
, CHAPTER - I
THE ORIGIN OF THE INTERNATIONAL
LEGAL ORDER AND ITS NATURE
O BJECTIVE
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 interna-
tional law. But it also comprises a sophisticated dispute settlement mechanism which makes it an inte-
gration organization, rooted in contemporary international law. In simple terms, the WTO’s sophisti-
cated dispute settlement mechanism makes it a distinctive organization.
Above all, the WTO comprises a true legal order. If we go by professor Jean Salmon’s defini-
tion, “a body of rules of law constituting a system and governing a particular society or grouping”, we
see that there exists, within the international legal order, a specific WTO 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 OF INTERNATIONAL LAW
Trade is at the origin of entire segments of public international law, and accounts for one of its
main sources: the treaty. Indeed, one of the first international legal instruments to leave its trace in
history was the commercial treaty between Amenophis IV and the king of Alasia (Cyprus) during the
XIV century BC. This treaty exempts Cypriot traders from customs duty in exchange for the importa-
tion of a certain quantity of copper and wood. Nothing has fundamentally changed since: at the begin-
ning of the XXI century AD we still have bilateral trade agreements. But they now have to be notified to
the WTO where they are checked for consistency with international trade rules.
The international legal order, on the other hand, has evolved dramatically. The great empires
have disappeared into history. Philippe le Bel and Jean Bodin’s jurists progressively conceptualized the
notion of sovereignty, the treaties of Westphalia ushered in the pre-eminence of a society of sovereign
States, the Congress of Vienna of 1815 laid the foundations of multilateralism, and the XIX century
invented the first international organizations. With the creation of the League of Nations followed by the
United Nations system, and finally, with the disintegration of the Eastern Bloc, the XX century saw the
evolution of traditional international law between States towards a contemporary and universal interna-
tional law open to new players such as the international organizations and the non-governmental orga-
nizations.
Thus, the international legal order has gone through a number of upheavals. But its evolution
has been neither linear nor homogenous - which is why international society still bears the marks of
several historical stages of the process.
5
, 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 GATT, which was replaced by the WTO in 1994, was a provisional agreement that en-
tered 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 contrac-
tual 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 (ICITO), 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 inter-
national legal personality”. In order to avoid any ambiguity, the Agreement Establishing the WTO 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 speciality. 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: (1)it produces a body of legal rules (2) making up a system and (3)governing a community .
(1) A body of legal rules, first of all. The WTO is a treaty comprising some 500 pages of text accom-
panied by more than 2,000 pages of schedules of commitments. Moreover, 50 years worth of
GATT practice and decisions — what we call the “GATT acquis” — have been incorporated in
what constitutes the new WTO treaty. WTO rules are regularly renegotiated. While it is true that
the WTO Secretariat and the WTO bodies do not have any general power to adopt formally
6
