A Typology of Multilateral Treaty Obligations: Are WTO Obligations Bilateral or Collective in Nature? Joost Pauwelyn * Full text available: PDF format ** Abstract An important, though oft neglected, distinction between multilateral treaty obligations separates obligations of a bilateral nature from those of the collective or erga omnes partes type. Multilateral obligations of the bilateral type can be reduced to a compilation of bilateral, state-to-state relations. They can be compared to contracts. Collective obligations, in contrast, cannot be divided into bilateral components. They are concluded in pursuit of a collective interest that transcends the individual interests of the contracting parties. The standard example of such obligations are those arising under a human rights treaty. In domestic law, collective obligations can be compared to criminal law statutes or even domestic constitutions. This essay examines the origins of the distinction between bilateral and collective obligations, as well as its major consequences, both in the law of treaties and the law on state responsibility. On that basis, a wider typology of multilateral treaty obligations is suggested. In the exercise, obligations arising under the World Trade Organization are used as a case study. The argument is made that WTO obligations remain essentially of the bilateral type; they are not collective in nature. * Associate Professor of Law, Duke University School of Law. Formerly with the Legal Affairs Division and Appellate Body Secretariat of the WTO. This paper is a substantial revision of Part I of The Nature of WTO Obligations, Jean Monnet Working Paper No. 1/02 (2002), posted at http://www.jeanmonnetprogram.org/papers/02/020101.html. It was conceived partly during an Emil Noel Fellowship at NYU Law School for which I remain extremely grateful to Joseph H.H. Weiler. Many thanks also for discussions and critical evaluations to James Crawford, Lothar Ehring, Robert Lawrence, Petros Mavroidis, Bruno Simma and the anonymous reviewers of the EJIL.
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