Research Handbook on the Theory and Practice of International Lawmaking
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Research Handbook on the Theory and Practice of International Lawmaking

Edited by Catherine Brölmann and Yannick Radi

The global landscape has changed profoundly over the past decades. As a result, the account of the making of international law based on the traditional theory of sources is increasingly challenged. This Handbook offers a comprehensive guide to the theory and practice of international law‐making today. It takes stock at both the conceptual and the empirical level of the instruments, processes, and actors involved in the making of international law. The book contains essays by leading scholars on key aspects of international law-making and on law-making in the main issue areas, with an interest in classic processes as well as new developments and shades of normativity.
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Chapter 18: The making of international trade law

Mary E. Footer


The making of international trade law in the WTO has developed mostly by means of primary lawmaking, i.e. by means of treaty. WTO treaty-making is supplemented by the accession protocols of new Members that may modify the set of rights and obligations between the acceding WTO Member and existing ones and/or contain ‘WTO-plus’ type obligations for the acceding Member. WTO treaty obligations may also be modified by means of amendment, authoritative interpretation, subsequent agreement and subsequent practice, or WTO Members’ use of the general waiver power. Secondary lawmaking within the institutional framework of an international organisation like the WTO comes about through the adoption of rules arising from decisions of the organisation, or one of its institutional bodies, that have normative effect. Delegated lawmaking – albeit somewhat putative – and waiver decisions as secondary legal acts can be considered as the two main forms of secondary lawmaking in the WTO.

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