Flexibility in International Economic Law vs. Pacta Sunt Servanda: Maintaining Legitimacy Over Time

Abstract

Pacta sunt servanda is a key principle in international law, which ensures order, stability and legal security in international relations. It renders commitments in international law generally binding unless a country decides to withdraw from them. This paper argues that the protection of market access rights requires considerable flexibility in order to remain suitable for the strict application of the principle pacta sunt servanda, since market realities change quickly, therewith altering the nature of corresponding international obligations. With regard to the interpretation of the legal scope of, in particular, the general exception clauses in international economic law, otherwise inconsistent trade measures originating in a popular vote qualify in principle as ‘necessary for the protection of public morals’ (within the meaning of GATT Art. XX(a) or GATS Art. XIV(a)). Reverting to majority decisions in a popular vote on most pressing concerns regarding trade policy would, thus, provide a legal way of mending the gap between international economic law and governance of trade-related issues.