Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law

By Joost Pauwelyn | Go to book overview

4
Accumulation and conflict of norms

Rather than attempt once again to decide what is ‘in’ or ‘out of’ the
WTO, we should try to mould the rules and their interpretation to
structure the interaction of the trading regime with other powers and
authorities, both domestic and international, in a legitimate manner.1

In the previous chapter, the conclusion was reached that a theory on conflict of norms could not be established with reference only to the sources of norms. Instead, we focused on the norms themselves, distinguishing general from particular international law norms. In this chapter, we examine the different functions of norms of international law, how these norms may interact (contrasting accumulation versus conflict of norms) and what the outcome of such interaction can be (focusing, in particular, on the processes of ‘fall-back’ and ‘contracting out’ of general international law).
The function of norms
Most norms of international law have one of four functions:2
(i) They impose an obligation on states to do something, that is a COMMAND (so-called ‘prescriptive norms’, ‘must do’ or ‘shall’ norms or norms imposing a ‘positive’ obligation);
(ii) They impose an obligation on states not to do something, that is a PROHIBITION (so-called ‘prohibitive norms’, ‘must not do’ or ‘shall not’ norms or norms imposing a ‘negative’ obligation);

1 Robert Howse, ‘From Politics to Technocracy – and Back Again: The Fate of the Multilateral Trading Regime’(part of the Symposium: The Boundaries of the WTO) (2002) 96 AJIL 94 at 112.

2 See Hans Kelsen, Théorie Générale des Normes (Paris: Presses Universitaires de France, 1996), 1.

-158-

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Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law
Table of contents

Table of contents

  • Title Page v
  • Contents vii
  • Preface xi
  • Table of Cases xiii
  • Abbreviations xxvi
  • Introduction 1
  • 1 - The Topic and Its Importance: Conflict of Norms in Public International Law 5
  • 2 - The Case Study: the Law of the World Trade Organization 25
  • 3 - Hierarchy of Sources 89
  • 4 - Accumulation and Conflict of Norms 158
  • 5 - Conflict-Avoidance Techniques 237
  • 6 - Resolving 'Inherent Normative Conflict' 275
  • 7 - Resolving 'Conflict in the Applicable Law' 327
  • 8 - Conflict of Norms in WTO Dispute Settlement 440
  • Conclusions 487
  • Bibliography 493
  • Index 506
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