© 2001 by Oxford University Press
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Power, rules and principles - which orientation for WTO/GATT law?
Department of European Law, Hamburg University, Hamburg, Germany
Are principles just 'phony concepts' or the very heart of every legal system? The purpose of this article is to inquire to what extent one might describe the WTO system as having triple-jumped from a power-oriented system to a rule-based system and finally to a principle-oriented system. This comparison should not be taken literally. Of course, there have not been 'jumps'. In reality there has been a continuing process in which power, rules, and principles evolved gradually. What are these principles, which also were referred to in the Preamble of the Agreement Establishing the World Trade Organization as basic principles underlying the multilateral trading system? This article searches Appellate Body reports in an effort to identify the use of principles. It first looks at eight 'internal' principles, e.g. trade liberalization, non-discrimination, sovereignty, and sustainable development, derived from WTO Agreements and focuses then on 'external' principles derived from public international law. Finally, the article discusses the proper role and ranking of principles in the WTO legal system and suggests that these should be balanced by using the principle of proportionality as applied by the International Court of Justice or extensively by the European Court of Justice.