Interaction and Delimitation of International Legal Orders


In Interaction and Delimitation of International Legal Orders, the author describes how actions of international dispute settlement bodies set up within institutionalized treaty regimes contribute to the establishment of autonomous international legal orders. Based on examples from the WTO, the EU, the law of the sea and international environmental law, the book presents a typology of uses of legal norms and principles that are extrinsic in the sense that they derive not from the regime, but from general public international law, other treaty regimes, or the jurisprudence from courts operating in other fields. The investigation contradicts assertions that international courts will contribute to systemic integration and offers reflections on repercussions for the legitimacy of international norms and institutions.

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Maria Fogdestam Agius, LL.D. (2013), Uppsala University, has previously published articles on topics related to state responsibility, international trade negotiations and the relationship between the WTO and the EU.

Abbreviations and Acronyms vii
Main Cited Instruments xi

1 Introduction 1
1.1 Purpose 1
1.2 Outline of Argument 4
1.2.1 Fragmentation and Integration as Drivers of International Law 4
1.2.2 Allocation of Authority between Law-Applying Institutions 6
1.2.3 Integration and Extended Interpretative Competence 12
1.2.4 The Role of Courts and the Legitimacy of Regime Interaction 13
1.3 Research Design 14
1.4 Scope and Delimitations 19
1.5 Note on Terms and Definitions 24
1.6 Outline of the Book 26

2 Treaty Regimes in International Law 28
2.1 The Choice for Regimes 28
2.2 Exodus from International Law 37
2.2.1 Confined by Unity, Delimited by Diversity 37
2.2.2 Regime Establishment 39
2.2.3 Informal Regime Creation 45

3 General International Law as Applied in International Regimes 56
3.1 Introduction 56
3.2 Status of General International Law in the Sources of Law of
Regimes 59
3.3 Varieties of General Norms Relied Upon in Adjudicative Practice 75
3.3.1 Rules on the Creation, Scope, Modification and Termination of Treaties 75
3.3.2 Rules on the Interpretation of Treaties 82
3.3.3 Rules on State Responsibility 90
3.3.4 Rules on Judicial Powers and Judicial Procedure 97
3.3.5 Substantive Principles of Customary International Law 102
3.4 Observations and Implications 114

4 Invocation of Extrinsic Rules of Conventional Law 131
4.1 Introduction 131
4.2 The Trade-Environment Interface 153
4.2.1 Balancing Trade and Environmental Concerns under wto Rules 153
4.2.2 References to Environmental Norms in wto Proceedings 162
4.2.3 Revisiting the Relationship between wto Rules and mea Provisions 172
4.3 The Interface between eu Law and Environmental Law 174
4.3.1 Environmental Concerns in eu Law 174
4.3.2 References to Environmental Norms in Proceedings before eu Courts 177
4.4 The eu-wto interface 193
4.4.1 The Intervening Structure of the eu Legal Regime 193
4.4.2 References to wto Rules before eu Courts 194
4.4.3 The Creation of the eu Legal Order and Institutions through Interaction with the wto? 204
4.5 The Interface between the Law of the Sea and eu Law 212
4.5.1 Applicability of Law of the Sea Rules to Challenge eu Legislation 212
4.5.2 Applicability of unclos to Defend a Breach of eu Law 221
4.5.3 References to unclos to Delimit Jurisdictional Rights and Scope of Application of eu Law in Various Maritime Zones 223
4.6 Observations and Implications 229
4.6.1 Temporal Dimensions and Multi-Sourced Norms 229
4.6.2 Creation of Conflicting Obligations 230
4.6.3 Muted Dialogue 233

5 Invocation of Extrinsic Judgments and Decisions 235
5.1 Introduction 235
5.2 References to General International Courts 236
5.3 Invocation of eu Judgments in wto Proceedings 242
5.4 Assessment under eu Law of Interpretations by Other Courts 253
5.5 Invocation of Extrinsic Ruling on Incompatibility as Grounds for Annulment or Damages 265
5.6 Standard-setting and Decisions by Non-Judicial Bodies in Other For a Used as Background 281
5.7 Observations and Implications 282

6 Extrinsically Informed Interpretation 285
6.1 Introduction 285
6.2 Systemic Integration and Interaction through Interpretation 289
6.3 Extrinsic Norms as Prejudicial Fact or Evidence of Fact 348
6.4 Interpretation of Substantive Rules in Light of Extrinsic Norms 369
6.5 Extrinsic Rules as Evidence of an Ordinary Meaning of Treaty Terms 381
6.6 Extrinsic Rules as Providing Background and Context for the Dispute or as Indicating the State of International Affairs 390
6.7 Invocation of Extrinsic Rules Incorporated or Implemented in the Regime 402
6.8 Qualifying the Use of Extrinsic Norms 415

7 Observations and Conclusions 434
7.1 Framing Decisions as Indicators of Regime Delimitation 434
7.2 Implications for Regime Delimitation: Regime-Specific Rules of Recognition and Claims to Constitutionality 471
7.3 Reconstruction and Reinterpretation 487
7.4 Creation of Inter-Regime Relationships 494
7.5 Foundations of Authority and the Legitimacy of International Law 499
7.5.1 Evolving Regimes and Authority Fragmentation 499
7.5.2 Validity, Legitimacy, and Authority of International Treaty Regime Institutions 510

List of References 515
Cited Literature and Reports 515
Cited Judgments, Decisions and Opinions 529
Index 550
Scholars and students of international law interested in the interaction of international treaty regimes and international dispute settlement; academic libraries, court libraries and public institutions operating in international law.
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