During his extraordinary career, Georges Abi-Saab served on the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia, as a member of the WTO’s Appellate Body, as a judge ad hoc at the International Court of Justice, as an arbitrator, and as an advocate. Remarkably, he has been equally influential as a scholar and as a teacher, publishing numerous eloquent and significant books and articles, and teaching at the Graduate Institute of International and Development Studies in Geneva and at other leading universities around the globe. In this interview with Jeffrey Dunoff, Professor Abi-Saab reflected on his career, and on the complex relations between international legal theory and practice.

Jeffrey Dunoff: Perhaps we can start our discussion of the relationships between theory and practice by inviting you to reflect on the term “theory.” The volume has chapters organized by schools of thought, but this is not the only way to understand “theory.”

The UN Charter was designed to institutionalise and project into the future the ‘Alliance of the Victorious Powers’ of the Second World War, as well as their vision of what the post-war world should be. Such vision harboured great potentialities for the future, but it was largely premised, consciously or unconsciously, on the image and presumed structures of the pre-existing world as reflected in classical international law. This heritage is clearly apparent in Article 2 of the Charter, which lays down the ‘principles’ of the United Nations.

The State as a primary fact compelling acknowledgement by international law

The contemporary system of international law finds its origins in the new structure of power that emerged at the end of the wars of religion in Europe in the seventeenth century, a structure reflecting the rise of the new subjects of the international community of the time – the States – and their fundamental role in international relations. The legal system ensuing from this structure was thus assigned a precise and limited task: to confer legal sanction on the new basis of distribution of power in that community by legitimising State sovereignty, without, however, encroaching on it in any significant manner.

This explains the position of classical international law when faced with the phenomenon of the birth of a State. And while subsequent developments have changed many things in international law, they have only marginally affected this position, as we shall see further on.

Indeed, the State in the contemplation of international law is not a mere legal or ‘juristic’ person (personne morale), whose process of coming into being is prescribed by law. It is rather a ‘primary fact’, i.e. a fact that precedes the law, and which the law acknowledges only once it has materialised, by attributing certain effects to it, including a certain legal status. However, the law has no direct hold over the unfolding of the process that leads to the birth of the State; it can encourage or discourage its advent by means of inducement or dissuasion, as it did, for example, in encouraging the creation of an independent State in Namibia or in discouraging the existence of a racist State in Rhodesia – in other words, in acting on the probabilities and the effectivities.

I have been asked by way of introduction to the contributions that follow to address the subject ‘WTO Dispute Settlement and General International Law’. Such a topic needs volumes and to treat it here in a few words is well-nigh impossible.

As some of the readers may not be familiar with the mechanics and the dynamics of the WTO system, I shall first describe briefly how the process of WTO dispute settlement looks from the outside to a lawyer who tries to classify it and where it can fit in the usual categories he has in mind. Then I will briefly comment on the substantive law which is applied.

If we want to classify the process of dispute settlement in the WTO, where would we put it? Is it mediation? Is it conciliation? Is it arbitration? Is it judicial settlement? Where in these types does it fit best?

Rufus Yerxa has described in the previous chapter how the system was created and developed, but I would like to add one or two observations to his. GATT was established under very peculiar circumstances, because there was supposed to be a third international economic organization in addition to the Bank (IBRD) and the Fund (IMF) that would deal with international trade: the International Trade Organization (ITO), not the WTO.

Its constitution was adopted in 1947, the Havana Charter. But the Havana Charter was very heavily attacked in the United States, and had no possibility of passing the Senate.

Having had the privilege of being the pupil of Professor R. Y. Jennings, as he then was, and the beneficiary of his guidance and friendship for over a third of a century, and the even rarer privilege of serving beside him as counsel before the International Court of Justice, then as judge ad hoc during his presidency of the Court, I was intrigued by his occasional use of ‘World Court’ to refer to the ICJ.

Indeed, this reference to the ICJ (and the Permanent Court of International Justice before it) as ‘the World Court’, which probably goes back to Judge Manley O. Hudson and which is current in legal literature in English, is unknown in other languages such as French, Italian, Spanish or for that matter Arabic. It raises in the mind of the non-common law jurist the following query: in what sense and what ways can the International Court be considered a ‘World Court’?

THE INTERNATIONAL COURT AS A WORLD-WIDE COURT

The first meaning that suggests itself is that it is a court of and for the whole world. As such, it is expected to be universalist in its composition, outlook and vocation, truly representing and at the service of the international community in its entirety, and not dominated by the legal or social culture or special interests of any segment thereof. This in turn would ensure that the Court and its judgments command the confidence of all the nations of the world.