13th Biennial Meeting - Penn State Law

TEXAS INTERNATIONAL LAW JOURNAL
VOL. 42:371
making is supported by reference to general principles. Another crucial function of
principles is that they can act as "'gateways' through which the legal order is
attached to the broader public discourse."" All those aspects are relevant for WTO
law as well, especially since it is in the process of evolving into a more mature legal
system and generating some constitutional law-type norms, principles, and
structures .
Based on the preceding observations, one notes the crucial role that provisions
such as Article XX GATT-and the legal rules and principles contained thereinplay
in resolving conflicts between trade and non-trade interests." Framing those
interests in terms of legally protected principles, trade-offs between principles are
necessarily seen as relative, depending on the weighing and balancing of
countervailing rights and interests in concrete circumstances. This weighing and
balancing, undertaken by the judiciary, follows from the character of principles. An
alternative approach could be to reduce the role of principles in the legal system by
increasingly transforming them into specific legislative rules. This would reduce the
discretion exercised by the judicial bodies and provide greater predictability. 36
Conflicts between economic and non-economic values and interests can thus be
resolved in different ways. First, it may be done through judicial balancing, based on
legal provisions such as Article XX GATT or the relevant provisions in the SPS and
TBT Agreements. Second, more specific legislation or treaty provisions may also
address those concerns and reduce the discretion for the judicial bodies. 37 Given the
frequent absence of specific rules on many sensitive issues and the prominent role of
the dispute settlement process in shaping WTO law, the role and importance of
principles has increased in the past and will continue to do so.
Proportionality is commonly referred to as a legal principle. It can also be
described as a test or standard, but its legal character is one of a principle. Robert
Alexy wrote: "[t]he nature of principles implies the principle of proportionality and
vice versa." 3 " The basic idea is that the principle of proportionality follows from the
main characteristic of principles: the process of optimization.
If one considers fundamental human rights as principles, one realizes how
proportionality and its three-step analysis (suitability, necessity and proportionality
stricto sensu) follows from the nature of competing principles: in the first step, the
test of suitability is to avoid that measures, which are not capable at all of achieving
the pursued objective, are adopted. Such measures do not bring any benefit to the
objective pursued; and, instead, they only entail negative effects for other
countervailing interests or principles. 3 9 The necessity element requires that the
means employed to achieve the objective pursued by principle P 1 be the least
intrusive with regard to countervailing principle P 2 . 40 Whenever there is a choice
33. Id. at 8.
34. See Deborah Cass, The "Constitutionalization" of International Trade Law: Judicial Norm-
Generation as the Engine of Constitutional Development in International Trade, 12 EURO. J. INT'L L. 39, 42
(2001).
35. Joel Trachtman, The Domain of Dispute Resolution, 40 HARV. INT'L L. J. 333, 356 (1999).
36. Id. at 350-54 (discussing rules and standards, the costs and benefits associated with them and their
institutional and strategic dimensions).
37. Id. at 376.
38. ROBERT ALEXY, A THEORY OF CONSTITUTIONAL RIGHTS 66 (Julian Rivers trans., Oxford Univ.
Press 2002) (1986).
39. See id. at 68-69.
40. "As a principle, P 2 requires optimizing relative to what is both legally and factually possible." Id.
HeinOnline -- 42 Tex. Int'l L.J. 378 2006-2007