Skip to main navigation Skip to main content
The University of Southampton
Southampton Law School

Treaty Interpretation in the WTO: Beyond the Vienna Convention on the Law of Treaties Seminar

9 February 2011
University of Southampton

For more information regarding this seminar, please email Dr Oren Ben Dor at .

Event details

In his powerful critique, 'From Apology to Utopia,' Martti Koskenniemi argued that the interpretation of international obligations was forever destined to swing between inherently opposing visions of the nature of public international law.

At one end, public international law was a series of fixed structures wholly divorced from the political reality of states' international obligations. Interpretation in this case was a process of perfecting those structures for their own sake (i.e. utopia). At the other end of the spectrum, Koskenniemi saw public international law as fully connected with state practice. Here interpretation of public international law is designed only to mirror state behaviour as it is unable to fully control it (i.e. apology). Discourse on the nature of public international law and what it means to interpret it therefore vacillates between these two extremes without any final resolution. My paper challenges that vision in the context of the law of the World Trade Organisation (WTO). I argue instead that the language of the WTO rules has its own autonomous existence which acts as a fixed point of reference from which to interpret WTO obligations. This point is fixed and equi-distant between Koskenniemi's utopian and apologist conception. So the interpretation of WTO law is neither fully divorced from state practice so it becomes utopian, nor fully connected to state practice so it becomes apologist. In this respect, my paper both explains how the interpretation of WTO law works and offers a partial reply to the 'excluded middle' problem raised by Koskenniemi's theory. My paper is built upon ideas from US' law and language theorists, James Boyd White and Robin West, as well as theories of language developed by Ludwig Wittgenstein.

Speaker information

Fiona Smith , UCL. Fiona Smith joined UCL in August 2005. Her research interests have focused on international agricultural trade law under the GATT and WTO and the philosophical underpinnings of the WTO regime. Her book Agriculture and the WTO: Towards a New Theory of International Agricultural Trade Regulation (2009) for Edward Elgar arguing for a different theoretical understanding of the problem of international agricultural trade. This book was described as "An insightful book full of ideas" by Professor Joseph McMahon, University College Dublin, a leading expert in international agricultural trade law. Reviewed by Professor Brian Bix, University of Minnesota, in (2009) Journal of International Economic Law (in press): "Smith's work has roots in ideas from theorists ranging from Lon Fuller (10) to Friedrich Hayek (32), Michael Oakeshott (41), and Nigel Simmonds (49). However, this book is by no means an abstract theoretical text. Smith’s knowledge of the primary texts, the secondary literature, and the panel and Appellate Body rulings is impressive and thorough, and on display throughout the book." (2009) 12 (4) Journal of International Economic Law 1067. She is currently working on a project on the influence of the philosopher John Gray in forming contemporary conceptual understanding of international trade theory in the WTO with Professor Sean Coyle, University of Exeter. Fiona was appointed a Visiting Scholar to University of Minnesota Law School for Fall 2008 where she worked with Professor Brian Bix on the philosophy of language (semantics) and its application to the understanding of language in treaty rules like the WTO's. The result should be an insight into how we can draft international treaties more effectively. Fiona is the Founding and now Co-Director with Dr Isabelle Van Damme, Sidley Austin, Geneva, of the WTO Scholars' Forum , an initiative designed to bring together experts on the law of the World Trade Organization to discuss topical issues. The Forum has an annual seminar programme and is in addition currently working with the World Trade Law Association, to bring together practitioners in London and Geneva with interests on WTO law and policy.

Privacy Settings