Soft law et droit de l'OMC

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.