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Muddling the Waters of Treaty Interpretation? Relevant Rules of International Law in the MOX Plant OSPAR Arbitration and EC – Biotech Case

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This article addresses whether the decisions in the MOX Plant OSPAR Arbitration and the EC – Biotech Case clarify or obscure systemic integration of relevant rules of international law. The OSPAR award has clearly generated greater confusion, both formally and substantively, by not staying the proceedings or interpreting the OSPAR Convention in light of relevant rules of international and regional law. Similarly, the Panel in the EC – Biotech case broke from the progressive example in US – Shrimp in its reluctance to employ the different legal means for considering other international law. However, attempts to “cross-fertilise” treaties by reference to other rules of international law should not be pursued overzealously, as it may create resistance among states towards the development of international law.

Affiliations: 1: Gonville and Caius College, Cambridge University, UK


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