Introduction

The concept of State sovereignty ‘is a pivotal principle of modern international law’, and ‘[m]ost of the other, if not all institutions and principles of international law rely, directly or indirectly, on State sovereignty’. Sir Hersch Lauterpacht dedicated a significant part of The Development of International Law by the International Court to a discussion of various issues under the rubric of ‘The Court and State Sovereignty’. This chapter follows suit and reviews statements by WTO adjudicators of wider applicability relating to: (i) treaties as acts of sovereignty; (ii) sovereignty and treaty interpretation; (iii) the sovereign right to regulate; (iv) sovereignty and taxation; (v) sovereignty and extraterritoriality; and (vi) permanent sovereignty over natural resources. It then reviews the paucity of statements by WTO adjudicators regarding: (vii) sovereign equality; and (viii) the domestic jurisdiction. There are some theoretical disagreements among academics as to whether ‘sovereignty’ is or is not a founding assumption of international trade law, and whether international trade law therefore is or is not in some way fundamentally different from other areas of public international law. It is hard to see anything in the statements of WTO adjudicators to support the proposition that the concept of ‘sovereignty’ has been understood to mean something different in the WTO context as compared with other areas of international law, or with regard to the ‘classic’ understanding of sovereignty; to the contrary, panels and the Appellate Body have relied quite heavily on some classic formulations of the concept developed by the PCIJ in the 1920s. In several cases, panels and the Appellate Body emphasized that States may exercise their sovereignty by negotiating and entering into treaties. In this regard, there is support in WTO jurisprudence for the proposition that the right of entering into international engagements is an attribute of State sovereignty, such that restrictions on the exercise of sovereign rights that a State voluntarily accepts through a treaty cannot be considered as an infringement of its sovereignty.