The Interplay between the WTO and RTAs: Is it a Question of Interrelation between Different Sources of International Law?

Abstract

This paper faces the question whether the relationship between the WTO and Regional Trade Agreements (RTAs) would be better qualified as a question of interrelation between different sources of international law (custom and treaty) rather than as a matter of compatibility or conflict between treaties. Initially, this idea was stimulated by the factual remark that RTAs quite systematically diverge from the requirements of GATT Article XXIV and other similar WTO provisions. In a strict international law perspective, to widen the inquiry necessarily means answering the question whether non-compliant State practice could be viewed as a tacit performance of an international custom and not simply as a generalized behaviour being wrong under WTO law. On the basis of a historical overview of the main theories developed over this topic in the past century, the present analysis elaborates the argument of a customary regional exception and prospects the existence, in the international trade relations, of an unwritten right or freedom to prefer, i.e. a right or freedom to conclude RTAs and, of course, to continue to take part in these preferential arrangements. It is also quite possible that, as such a custom crystallized before the advent of the GATT 1947 and Article XXIV has always been inoperative, there has been a sort of continuum in the transition from the pre- to the post-GATT period and, hence, that GATT Article XXIV did not properly fall into desuetude. On the practical side, the real dynamics of the WTO-RTAs' relationship are characterised by a somewhat anarchical situation where it is not the WTO which determines and enforces the legitimacy of the RTAs but it is the RTAs themselves which determine the degree of their adherence to the WTO law, through their concrete autonomous behaviour. This phenomenon might be explained, from an international law general perspective, as being the practical consequence (and a presumption) of the interrelation between a treaty (WTO) and a custom (the RTAs), that is between two different sources which can reciprocally derogate from each other.