Dispelling the Chimera of ‘Self-Contained Regimes’ International Law and the WTO

Anja Lindroos ¹

Michael Mehling ²

Abstract

International lawyers have in recent years expressed much unease about the perceived fragmentation of their legal system. In truth, however, international law has always been fragmented without losing its ability to operate. A threat, rather, arises from the ongoing proliferation of special regimes endowed with strong institutional frameworks and an ability to set new international norms. This expansion begs an uncomfortable question: What if such – seemingly independent – entities were to claim autonomy and challenge the validity of general international law? A salient feature of this debate is the preoccupation with ‘self-contained regimes’ and their status under international law. In a recent report to the International Law Commission, for instance, Martti Koskenniemi concluded that no such regime can be created outside the scope of general international law. Drawing on a particularly controversial example, this article therefore reviews the law and practice of the World Trade Organization to determine how that body has positioned itself in the debate. While its judiciary has recognized that the rules on world trade do not exist in isolation of general international law, a closer look at actual case law unveils a far more ambivalent picture. The chimera of self-contained regimes, in other words, is not easily dispelled.

1.  Erik Castrén Institute of International Law and Human Rights, University of Helsinki, Finland.

2. Faculty of Law, University of Greifswald, Germany.

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