IDEAS home Printed from https://ideas.repec.org/
MyIDEAS: Log in (now much improved!) to save this article

Soft law et droit de l'OMC

  • Henri Culot
Registered author(s):

    Soft law can be understood by distinguishing obligation and constraint. Examples in the field of economic law show that rules are not simply « constraining» or not. Rules always imply constraint to a certain point. Determining the degree of constraint associated with a rule is one of the judge’s political missions. This idea is explained with two examples related to WTO rules. First, I analyse the ECJ case-law relating to the direct effect of the WTO agreements. I compare especially the use of the « unconditionality» and « reciprocity » arguments used by the ECJ when it deals with EC law or with WTO law. The ECJ case law can be understood as suggesting that WTO rules are not binding, i.e. a kind of soft law. I show that the ECJ develops a judicial policy relative to the constraint of the rules, by which it accords more constraint to the EC treaty than to the WTO agreement. In a second part, I analyse the constraining force of norms of international soft law to which the SPS and TBT agreements refer (the Codex alimentarius, for instance). If states follow these soft rules, they are presumed to conform to their WTO obligations relative to this subject matter. This presumption has the effect of increasing the constraining power of the Codex alimentarius, much like the ECJ case law decreases the constraint associated with WTO rules. This increased constraint explains why states are more willing than before to participate in the elaboration of international soft norms. An analysis of the panel and AB’s reports in the Sardines and Hormones cases shows that the constraining power of rules in largely defined by the judge as he interprets and applies the rules. I conclude that rules can be classified on a continuum based on intensity of constraint, whether they are formally binding or not. The role taken by international judiciary bodies is not exceptional : national judges also make decisions on the constraint of rules.

    If you experience problems downloading a file, check if you have the proper application to view it first. In case of further problems read the IDEAS help page. Note that these files are not on the IDEAS site. Please be patient as the files may be large.

    File URL: http://www.cairn.info/load_pdf.php?ID_ARTICLE=RIDE_193_0251
    Download Restriction: free

    File URL: http://www.cairn.info/revue-internationale-de-droit-economique-2005-3-page-251.htm
    Download Restriction: free

    Article provided by De Boeck Université in its journal Revue internationale de droit économique.

    Volume (Year): t. XIX, 3 (2005)
    Issue (Month): 3 ()
    Pages: 251-289

    as
    in new window

    Handle: RePEc:cai:riddbu:ride_193_0251
    Contact details of provider: Web page: http://www.cairn.info/revue-internationale-de-droit-economique.htm

    No references listed on IDEAS
    You can help add them by filling out this form.

    This item is not listed on Wikipedia, on a reading list or among the top items on IDEAS.

    When requesting a correction, please mention this item's handle: RePEc:cai:riddbu:ride_193_0251. See general information about how to correct material in RePEc.

    For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: (Jean-Baptiste de Vathaire)

    If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.

    If references are entirely missing, you can add them using this form.

    If the full references list an item that is present in RePEc, but the system did not link to it, you can help with this form.

    If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your profile, as there may be some citations waiting for confirmation.

    Please note that corrections may take a couple of weeks to filter through the various RePEc services.

    This information is provided to you by IDEAS at the Research Division of the Federal Reserve Bank of St. Louis using RePEc data.