The law of GATT as a special field of international law: Ignorance, further refinement or self-contained system of international law?

Abstract

This article has the limited ambition of analyzing some special features of the law of the General Agreement on Tariffs and Trade (GATT) and its successor organization, the World Trade Organization (WTO), in the framework of general international law. The GATT, as is the case with all those international organizations which have their own substantive law and are not merely vehicles for international negotiation and co-ordination, inevitably is a special branch of international law. As with all such branches it develops rules which deviate from general international law and which further refine and adapt the rules and principles of international law. In respect of GATT, as in some other exceptional cases (EC), there is even reason to ask the question whether it has or has not become a self-contained regime in international law. That is to say that the system's countermeasures are not the normal countermeasures of international law, such as reprisals and the exceptio non-adimpleti contractus in treaty law, but are entirely separate from those normal countermeasures and are regulated so as to limit the freedom of States to have recourse to them. Although Riphagen has described the GATT not so much as a self-contained system, but as a number of ‘conventional derogations’ from general rules of international law, there is reason to look again at this assessment given the evolution that has taken place in the GATT system since then.