Principles of Normative Integration and the Allocation of International Authority: The WTO, the Vienna Convention on the Law of Treaties, and the Rio Declaration

Abstract

There is a fundamental yet understudied link between the integration of substantive norms in international law and the consolidation of international authority. As well-reflected in WTO case-law (e.g., EC-Swordfish, EC-Biotech, Mexico-Soft Drinks and US-Shrimp) but also in international law more generally, norm integration and authority integration maintain a basic correlation that also has elements of causation. The integration of norms between branches of international law leads to pressures towards the integration of authority. As a result, the general reluctance to adopt and adhere to comprehensive norm-integrating principles in international law may stem from institutional fears relating to the potential impact of such principles upon the structure of the authority of international decision-making bodies. The quest for international legal consistency through normative integration, however commendable it may be in itself, is at least subliminally identified with the prospect of a centralization of international authority, which is a considerably less popular proposition. However, not all principles of normative integration were created equal in this respect. By comparing the integrative effects of Article 31(3)(c) VCLT and Paragraph 4 Rio (mainly in the context of the WTO, but with universal implications), the article shows that softer, less binding models of normative integration may permit decision makers to integrate norms with less pronounced (and less threatening) influences on the allocation of authority. This understanding presents proponents of normative integration with a strategy worth considering, that of the path of least resistance. Normative integration that creates less pressures towards authority integration has better chances of being adopted by tribunals, and hence, has better prospects of attaining its normative goals.

Keywords: fragmentation, WTO, ITLOS, Law of Treaties, Rio declaration, interpretation