Originally from:
The WTO: Governance, Dispute Settlement & Developing Countries
The WTO: Governance, Dispute Settlement & Developing Countries-Digital
Chapter 36 - Preview Page
The Use and Abuse of International Law in WTO Trade/Environment Litigation
Robert Howse
Among the central challenges to the international legal order today is that which is typically referred to as “fragmentation”—the co-existence of multiple regimes and fora, whose legal subjects and objects partly converge and often diverge, where fora and norms can overlap and possibly collide in a single dispute. Although there are some rules to deal with conflict of treaties and some principles of hierarchy (the status of ius cogens being the most obvious example) the positive features of international law as a system of rules are very indeterminate in addressing fragmentation. In fact, fragmentation may reflect a tendency of “juridification” of transnational social relations and interests of all kinds, extending far beyond the kind of core State interests reflected in traditional international law and especially in the UN Charter.
This chapter is concerned with one particular dimension of fragmentation of norms—its challenges for interpretation. What kind of role should norms drawn from other international instruments and regimes have in the interpretation of a treaty where the dispute in question implicates interests and constituencies represented in both regimes? One of the most contentious and complex expressions of fragmentation has been the trade and environment debate, including the relationship of WTO law to international environmental law.
About the Author:
Robert Howse is Alene and Allan F Smith Professor of Law at the University of Michigan Law School.