I. The internationalized politics of plain packaging legislation

After decades in which the primary focus of tobacco control regulation has been on measures such as advertising restrictions, graphic health warnings and restrictive smoking policies, there is now a major push underway within the tobacco control community for the enactment of so-called ‘plain packaging’ legislation. Although it may take many forms, the term ‘plain packaging’ legislation typically refers to rules requiring the use of standardized packages for all cigarette brands, prohibiting the use of trademarks and logos on packaging, or requiring that the product's brand name be included on the package only in a standard font, size and colour. At the time of writing, only Australia has passed plain packaging legislation, which came into effect in December 2012.Footnote ⁷ Other countries, including Canada and the United Kingdom, have previously considered or are currently discussing similar proposals, while Ireland has recently announced its intention to adopt plain packaging legislation early in 2014.

Unsurprisingly, plain packaging legislation has been the subject of considerable political dispute. On one side, advocates of plain packaging laws argue that plain packaging legislation restricts the branding and marketing opportunities available to tobacco companies, and therefore limits their potential to attract new consumers. More specifically, it is suggested that standardized packaging will remove the potential for misleading messages to be communicated via packaging—the most common example given is that the colour, shape and visual appeal of certain packages can often give the false impression to consumers that the products they contain are lighter or less harmful to health than other products. In addition, it is said that plain packaging may increase the effectiveness of graphic warnings, by reducing the potential for other aspects of the package to detract attention from such warnings. On the other side, a number of counter-arguments have been made: that plain packaging laws are unlikely to achieve their objectives in practice; that they will impose significant costs on retailers of cigarettes; that they unjustifiably interfere with the ability of tobacco producers to distinguish their products from those of their competitors; that they destroy much of the economic value of the brands that producers have generated; and that they violate constitutionally protected economic rights of intellectual property exploitation.Footnote ⁸

Furthermore, almost from its inception, tobacco packaging legislation has been subject to actual and threatened challenge under international law. In 1994, for example, it was reported that RJ Reynolds threatened to bring a claim under the investment protection provisions of the North American Free Trade Agreement (NAFTA) in response to Canada's then-proposed plain packaging legislation.Footnote ⁹ In 2010, Philip Morris initiated International Centre for Settlement of Investment Disputes (ICSID) proceedings in respect of Uruguayan packaging regulations limiting the use of trademarks and brand names on cigarette packets, alleging violations of various provisions of the Switzerland–Uruguay Bilateral Investment Treaty (BIT).Footnote ¹⁰ More recently, in June 2011, Philip Morris also famously initiated investor-state arbitral proceedings against the Australian government under the Hong Kong–Australia BIT in respect of Australia's plain packaging legislation, on the grounds of unlawful expropriation, as well as violation of the fair and equitable treatment standard.Footnote ¹¹ Furthermore, in addition to these investment disputes, a number of disputes have also arisen under the law of the World Trade Organization. A formal complaint was lodged against the Australian plain packaging measures by the Ukraine in March 2012, as well as a further complaint by Honduras a month later, a third by the Dominican Republic in July, and a fourth by Cuba in May 2013.Footnote ¹² These complaints allege violations of, among other provisions Article 20 of the Agreement on Trade-Related Aspects of Intellectual Property Rights which protects the unencumbered use of trademarks in the course of trade, and Article 2.2 of the Agreement on Technical Barriers to Trade, which requires WTO Members to ensure that labelling and packaging regulations ‘are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade’. At the time of writing, all of these disputes are still in their early stages.

Even as international trade and investment law has been used to challenge plain packaging legislation, tobacco control advocates have for their part sought to use other bodies of international law to encourage states to adopt such legislation. The most significant international legal initiative is the World Health Organization's Framework Convention on Tobacco Control (FCTC).Footnote ¹³ Adopted by the World Health Assembly in 2003, and coming into force in 2005, the FCTC has 176 parties at the time of writing, relevantly including Australia, China, Honduras and the Ukraine.Footnote ¹⁴ The FCTC itself contains a number of generally worded provisions which potentially impose obligations relating to plain packaging legislation. Article 11, for example, requires parties to adopt and implement effective measures to ensure that ‘tobacco product packaging and labelling do not promote a tobacco product by any means that are false, misleading, deceptive or likely to create an erroneous impression about its characteristics, health effects, hazards or emissions’. Article 13 further requires each Party ‘in accordance with its constitution or constitutional principles, to undertake a comprehensive ban of all tobacco advertising, promotion and sponsorship’, including prohibition of ‘all forms of tobacco advertising, promotion and sponsorship that promote a tobacco product by any means that are false, misleading or deceptive’ and restriction of ‘the use of direct or indirect incentives that encourage the purchase of tobacco products by the public’. Article 2 addresses certain aspects of the relationship between the FCTC and other international agreements.

In addition to these generally worded treaty provisions, a number of more specific guidelines and recommendations have been adopted which mention plain packaging legislation explicitly. In November 2008, for example, parties to the FCTC adopted Guidelines for the Implementation of Article 11, including the following:

At the same time, guidelines were also adopted on Article 13, containing the following ‘recommendation’:

While both guidelines use hortatory language (‘should consider’), and are often referred to as non-binding, their precise international legal significance is debated, and according to some may be considerable.Footnote ¹⁷ What is clear is that the Conference of the Parties intended that plain packaging measures be formally encouraged as means of giving effect to Article 11, and signalled that such measures are considered a desirable, potentially effective and legally permitted form of tobacco control legislation.

The stage is set, then, for a potential normative conflict between international trade and investment law on the one hand, and international health law on the other. It is important, however, to stress the word ‘potential’: it is perfectly possible that the trade and investment tribunals hearing the cases against the Australian legislation will find in Australia's favour. Indeed, my own view of the merits of these cases is that such an outcome is quite likely. Thus, although the remainder of this article proceeds as if a normative conflict of some sort does exist, this should be seen for what it is: a useful thought experiment, rather than a prejudgment of the merits of the international legal claims against Australia. For the purposes of my argument, then, I want to proceed on the speculative basis that at least one of the international legal challenges against Australia's plain packaging laws succeeds, and does so in such a fundamental way as to call into question Australia's ability to adopt plain packaging legislation in a recognizable or effective form. In such a case, the Australian government would find itself in a difficult position: faced on one side with its obligations under the FCTC and its related instruments, and on the other side with its apparently conflicting obligations under trade and investment law, what exactly is it obliged to do?

It is important to realize that certain important legal questions would necessarily remain unanswered at the conclusion of the trade and investment disputes—either because trade and investment tribunals do not have the authority to address them at all, or because in practice they cannot resolve them in an authoritative manner.

The most significant limitation on trade and investment tribunals in this context relates to the law they are permitted to apply to disputes that come before them. On the WTO side, although the position is perhaps not entirely free from doubt,Footnote ¹⁸ most agree that the law applicable in WTO proceedings consists solely of the ‘covered agreements’ of the WTO itself.Footnote ¹⁹ The Appellate Body has made it quite clear that other international agreements cannot override the clear wording of WTO covered agreements for the purposes of WTO dispute settlement.Footnote ²⁰ It has also made clear that it will not pursue lines of argument which would ‘entail a determination whether [a WTO Member] has acted consistently or inconsistently with its [non-WTO] obligations’. To find otherwise, it has said, would incorrectly ‘imply that the WTO dispute settlement system could be used to determine rights and obligations outside the covered agreements’.Footnote ²¹ It follows that the FCTC (and its Guidelines) are not part of the applicable law in WTO proceedings, and that a WTO panel is not permitted to address the question whether a relevant conflict exists between the provisions of the FCTC and those of the WTO covered agreements, and if so, which provisions take priority in the relations between the disputing parties. More precisely, a WTO Panel hearing the plain packaging case would not be permitted to rule on: (a) the applicability and application of the provisions of the Vienna Convention on the Law of Treaties (VCLT) and customary international law having to do with the relations between the FCTC and the WTO covered agreements, including especially Articles 30 and 41 of the VCLT and the lex specialis principle; and (b) the meaning of Article 2 of FCTC and its effects (if any) on the relationship between the FCTC and the WTO covered agreements.

The situation is less clear on the investment side. The Hong Kong–Australia BIT provides in Article 10 for investment disputes to be submitted to arbitration under the United Nations Commission on International Trade Law (UNCITRAL) rules, and such rules provide in Article 35 that, failing contrary agreement by the parties, ‘the arbitral tribunal shall apply the law which it determines to be appropriate’. Given such flexibility and given that the Hong Kong–Australia BIT contains no provision specifically regarding the applicable law, it is impossible to say for sure whether or not the FCTC will be considered part of the applicable law in these proceedings.Footnote ²² For the purposes of the thought experiment I am pursuing in this article, I will assume that it will not be, and that therefore the investment tribunal will not be able to address the question whether or not a relevant normative conflict exists between the FCTC and the Hong Kong–Australia BIT, and if so which treaty takes priority in the circumstances.

Quite separate from the issue of applicable law is the issue of the so-called ‘principle of systemic integration’, as set out in Article 31(3)(c) of the VCLT. Should trade and investment tribunals apply this principle in the context of plain packaging disputes, they would interpret the WTO agreements and the relevant BIT in light of the provisions of the FCTC, resolving interpretative ambiguities in ways which ensure maximum compatibility. As has often been noted, this may in practice be the most significant means by which multilateral treaties such as the FCTC can meaningfully influence the application of international trade and investment law. However, existing WTO jurisprudence on Article 31(3)(c) is unclear and inconsistent, and it is perfectly conceivable that a WTO Panel will refuse to apply the principle in the plain packaging cases on the basis that the parties to the FCTC are not identical to the Members of the WTO.Footnote ²³ It is equally conceivable that the UNCITRAL tribunal hearing the investment case will refuse to apply the principle on the basis that the relevant party to the BIT in question (pre-integration Hong Kong) and the relevant party to the FCTC (China) are not the same juridical entity. The result would be that not only the proper application, but even the applicability, of the principle in the plain packaging context, would remain a matter of dispute.

It is probably fair to say, then, that decisions against Australia in the relevant trade and investment disputes, would raise at least as many questions as answers. Australia's international legal position would remain unclear in certain fundamental ways: not just in terms of the exact extent and nature of any conflict between its various international legal obligations, but the way in which such conflicts are to be resolved. The same difficulty would of course also face other states looking to enact plain packaging legislation, which are simultaneously parties to the FCTC, WTO Members, and parties to investment treaties in a similar form to the Hong Kong-Australia BIT. Furthermore, and as a consequence, the WHO's efforts to promote plain packaging legislation globally would be seriously impaired. What might be done to address these problems?

II. The who could, and should, request an icj advisory opinion on certain systemic international legal questions

One obvious possibility presents itself immediately: the WHO could simply ask the ICJ for an advisory opinion on the questions just set out.Footnote ²⁴ The precise formulation would have to be carefully worked out, but the substance is clear: is there a normative conflict between Australia's obligations under the FCTC and its obligations under the relevant trade and investment agreements? If so, what is their relative priority, according to the principles set out in the VCLT and customary international law? Does the principle of systemic integration require that the relevant trade and investment agreements be interpreted in light of the FCTC, and what precisely does this entail? What is the meaning and significance of Article 2 of the FCTC in this respect?

At first glance, the WHO would seem to have a very clear and obvious interest in posing such questions to the ICJ. This is for at least three reasons. One reason is that any successful international legal challenge to Australia's plain packaging laws would deal a very serious blow to the WHO's efforts to promote tobacco control legislation globally. For many countries, the risk of international legal litigation—including the prospect of very significant awards for damages in investment proceedings—would be an insurmountable obstacle to the adoption of legislation of this kind. Faced with such consequences, the WHO would have to take seriously any opportunity to continue the legal contest in different forums, including the ICJ, if only as a way of diluting the chilling effect of the initial decision. After all, part of the purpose of negotiating the FCTC, at least for some of its advocates, was precisely to provide a legal counterweight to what some saw as the deregulatory tendencies of international economic law.Footnote ²⁵ A second reason is that a successful challenge to plain packaging legislation would significantly undermine the object and purpose of the FCTC, a treaty which is a WHO initiative, and which the WHO seeks to promote. It is arguable that the WHO would not be adequately fulfilling its responsibilities in respect of that treaty were it not to give proper consideration to this possibility. The third reason is simply that WHO itself will wish to ensure that its tobacco control efforts are fully in accordance with relevant international law, and that posing these questions to the ICJ may be the best way of doing so.

A number of counter-arguments can immediately be anticipated. One is simply that it would not be in the interests of the WHO to ask the ICJ for an advisory opinion, because the ICJ is unlikely to give it the answer it wishes to hear. Another is that such a request may endanger what are currently very good inter-institutional relations between the WHO and the WTO.Footnote ²⁶ I address both of these arguments in later sections. It may also be argued that, whatever the institutional interests of the WHO, what really matters are the interests of member states of the WHO, who would be much more reluctant to involve the ICJ. After all it is the member states, through the World Health Assembly, who would need to pass a resolution requesting an advisory opinion—and that resolution would probably require the affirmative votes of a two-thirds majority of that part of the 193 members of the WHO present and voting.Footnote ²⁷ States, on this argument, simply do not want the ICJ involved in trade and investment disputes: they intentionally created specialized tribunals to deal with such disputes, and they are very wary of taking any steps which would undermine the effectiveness and smooth running of such specialized tribunals.Footnote ²⁸ Historically, proposals to increase the use of the Court's advisory jurisdiction have foundered on the rocks of two interrelated fears:

While I acknowledge that many states would no doubt initially strongly resist engaging the ICJ, it is not clear to me that the merits of the issue are so clear-cut. As I shall argue below, engaging the ICJ need not—and almost certainly would not—seriously undermine the work of trade and investment tribunals, but would in fact significantly assist them in their work. The ICJ has historically shown itself to be a cautious body, which is tremendously sensitive to its institutional limitations, and the boundaries of its legitimacy. Besides, the question posed to the Court could be carefully crafted so as to limit the Court to those aspects of the law of lesser political sensitivity. Furthermore, states have other interests which push in the opposite direction. It is possible, for example, that a significant number of members of the WHO will see decisions by WTO panels and investment tribunals prohibiting plain packaging legislation as a potential encroachment on their regulatory autonomy, and may therefore be more open to the ICJ's advisory jurisdiction as a defensive legal strategy. Some may see an advisory opinion as a welcome step towards greater legal certainty.Footnote ³⁰ In any case, the likelihood of strong resistance from some states should not stop us from reflecting on the potential systemic benefits of engaging the ICJ.

Finally, even if it is accepted that the WHO (and its members) would have an interest in requesting an advisory opinion, it may still be argued that it does not have the authority to do so, in light of the prior decision of the ICJ in the Nuclear Weapons case.Footnote ³¹ As is well known, in that case the ICJ determined that the WHO did not have the authority to request an advisory opinion on the legality of the use of nuclear weapons. Although a full analysis is not possible in the context of this article, let me offer five brief reasons why the opposite conclusion would be reached in the plain packaging context.

First, unlike the legality of the use of nuclear weapons, the general question of the international legality of plain packaging arises naturally and inevitably as the WHO carries out its constitutional mandate. There is no question that the WHO's competence extends to addressing the health effects of tobacco products. Under Article 2 of its Constitution, it is equally clear that the WHO can pursue this objective by making recommendations to governments as regards appropriate tobacco control legislation, and providing technical and other assistance to governments wishing to strengthen their domestic tobacco control regimes.Footnote ³² It should immediately be obvious that in order to carry out these activities effectively, the WHO must have regard to the international legality of various different tobacco control policies—otherwise it could not possibly advise and assist governments properly.

Second, more specific questions relating to the precise legal relationship between the FCTC and various provisions of trade and investment law also arise very directly and inevitably from the WHO's constitutional mandate. The authority under Article 2(a) and (b) of the WHO Constitution to ‘act as … the co-ordinating authority’ on international tobacco control efforts, and to ‘maintain effective collaboration’ with other relevant organizations, necessarily implies an ability to address the relationship between the FCTC and treaties administered by other organizations. Given that a major part of the purpose of such collaboration is to attempt to ensure the mutual compatibility of the activities of different international organizations, it is clearly of direct concern to the WHO to understand how potential incompatibilities might be addressed under international law. Similarly, its authority under Article 2(k) and (u) of its Constitution to promote international conventions and standards also naturally gives rise to questions about the potential relationship between such conventions and other parts of international law. After all, an understanding of the nature of that relationship may fundamentally alter the manner in which the WHO ‘develops’ and ‘promotes’ it.

Third, legal questions regarding the interpretation of the FCTC are of particularly direct concern to the WHO, given its close institutional connection to that treaty. In its advisory opinion in Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, the Court noted that the General Assembly's authority to request an interpretation of the Genocide Convention was fortified by the close involvement of that body in the preparation, negotiation and implementation of that convention:

Precisely the same may be said of the relationship between the WHO and the FCTC. The FCTC was negotiated under the auspices of the WHO, and was adopted by the World Health Assembly. The WHO works towards expanding participation in the Convention, convenes the Conferences of the Parties, and hosts the Convention Secretariat.

Fourth, the present context is fundamentally different from the factual situation in the first Nuclear Weapons case. In that opinion, the Court noted that while the WHO was authorized to address the health effects of nuclear weapons, the question of the international legality of the use of nuclear weapons did not arise in the course of carrying out such duties. This was, according to the Court, because the legality or otherwise of nuclear weapons is irrelevant to both the mandate and the nature of the WHO's efforts to address the health effects of nuclear weapons. There are many causes of adverse health effects, the court noted, but the ‘legal or illegal character of these causes is essentially immaterial’ to the ability of the WHO to address them. Specifically, ‘whether nuclear weapons are used legally or illegally, their effects on health would be the same’.Footnote ³⁴ As a result, the question of the legality of the use of nuclear weapons did not arise ‘within the scope of the activities’ of the WHO, and the competence to address the legality of the use of nuclear weapons was not a necessary implication of WHO's constitutional mandate.

Whatever the merits of that reasoning,Footnote ³⁵ it should be clear that the situation is quite different in the tobacco control context. What is at issue here is not the international legality of the causes of poor health (smoking), but the legality of measures which the WHO seeks to encourage as a response. The international legality or illegality of such measures is hardly ‘immaterial’ to the WHO's activities—quite the contrary, it may significantly impact whether or not the WHO chooses to pursue them, and encourage states to adopt them. The difference could hardly be more stark.

Fifth and finally, a request from the WHO in the plain packaging context does not risk undermining the ‘principle of speciality’ in the same way that the request in relation to nuclear weapons did. This was a very important consideration for the ICJ in the earlier case. Given the huge diversity of causes of adverse health effects, the Court argued, there was a real risk that permitting the WHO to request opinions about the legality of such causes could lead it very far from its traditional and originally envisaged scope of activities. To find otherwise, would be ‘tantamount to disregarding the principle of speciality’.Footnote ³⁶ Significantly, the Court noted in that case that the WHO's Constitution should not be interpreted solely on its own terms, but rather with regard to the larger scheme of which it is a part. The proper scope of activities of the WHO, in other words

The ‘overall system’ referred to by the Court is the constellation of specialized agencies established under Articles 57, 58 and 63 of the UN Charter, along with the numerous agreements between the UN and these agencies, which coordinate the activities of these agencies and distribute authority between them. When considered in this context, the Court suggested, the Constitution's wide terms may need to be read more narrowly, in order to ensure that the WHO's activities ‘are necessarily restricted to the sphere of public “health” and cannot encroach on the responsibilities of other parts of the United Nations system’.Footnote ³⁸ ‘There is no doubt’, the Court went on, ‘that questions concerning the use of force, the regulation of armaments and disarmament are within the competence of the United Nations and lie outside that of the specialized agencies … any other conclusion would render virtually meaningless the notion of a specialized agency’.Footnote ³⁹

These considerations are not nearly as strong, however, in the plain packaging context. For one thing, neither the WTO nor investment tribunals are specialized agencies of the UN,Footnote ⁴⁰ and are therefore not part of the ‘overall system contemplated by the Charter’ to which the Court was referring. Perhaps more importantly, the passage quote above derives from the Court's concern about the potential of encroachment by specialized agencies on the authority of the UN itself, and in particular the General Assembly and Security Council—the Court may well be less protective of the authority of one specialized international organization as against another, not least because in such cases it is rarely clear which organization would be ‘encroaching’ on the authority of the other. Indeed, to treat this as a potential ‘encroachment’ by the WHO on the proper terrain of the WTO or of investment tribunals would fundamentally misunderstand the nature of problems of fragmentation, and proceed from an incorrect sense that different specialized agencies necessarily have mutually exclusive domains of operation.Footnote ⁴¹ Tobacco control measures clearly fall within the competence of each of the WTO and the WHO and investment tribunals—and, for that matter, many other international organizations. Plain packaging legislation is both a health issue and a trade issue, and is by nature not amenable to being objectively characterized as self-evidently one kind of issue or another. Both organizations clearly have a legitimate interest in understanding the application of international law as a whole to these measures, and it would be a mistake to use the principle of speciality to artificially limit the authority of one or the other. In any case, even if the Court were to accept an argument along these lines, it is clear that the WHO's authority to ask certain types of questions would still remain. Thus, it could still concern itself with legal questions relating to the application of the FCTC to plain packaging measures, as well as, crucially, legal questions concerning the relationship between the FCTC and trade or investment law at the systemic level, as set out above. It could also concern itself with legal questions relating to other bodies of international law, including customary international law, in respect of which there is no question of encroachment.

III. It would also be in the institutional interests of the wto for such a request to be made

I noted above the potential concern that a request for an ICJ advisory opinion could be seen to endanger relations with the WTO. At first glance, it certainly seems that engaging the ICJ in this way constitutes a threat to the authority, effectiveness and legitimacy of the WTO dispute settlement system. Does it not raise the spectre of the ICJ giving its opinions on questions of law which are presently within the sole competence of the WTO—and perhaps contradicting WTO tribunals in doing so? Might WTO Members not use this procedure to circumvent the WTO dispute settlement system or undermine its decisions? Isn't it the purpose of the WTO's dispute settlement system to provide finality to trade disputes, and certainty to the law, and wouldn't both these goals be undermined if the ICJ's jurisdiction were to be engaged?

It is certainly true that the WHO and the WTO have by now developed good institutional links through a history of collaboration on questions of health policy which cut across their respective mandates.Footnote ⁴² These links are valued within the WHO, and there seems to be no desire within that institution to jeopardize them. It is also true that, by and large, WTO Members have been extremely reluctant to agree to any proposal which would diminish the authority of the WTO dispute settlement organs, and cede decision-making powers over trade matters to other international bodies.Footnote ⁴³ But I shall argue in this section that concerns about such matters would be misplaced in the present context, where no question of any diminution of the WTO's authority arises. Furthermore, I will argue that, precisely because the question of authority does not arise, in fact the institutional interests of the WTO point in a similar direction to those of the WHO, and that the WTO's dispute settlement organs in particular would be likely to welcome the intervention of the ICJ.

The most obvious point to make in this respect is that ICJ advisory opinions are non-binding, and that therefore there is no threat at all to the formal authority of WTO tribunals. Even if the ICJ decided to give a contradictory opinion as to the meaning of WTO covered agreements (and I shall suggest in a moment that this is highly unlikely), it is abundantly clear that parties to WTO disputes remain bound by the decisions of WTO tribunals, and not by any ICJ advisory opinion, whether contradictory or not. Where the ICJ provides its opinion on a question of general international law which may also be considered by a WTO tribunal, such as the proper interpretation of VCLT Article 31(3)(c), it is equally clear that it is the WTO's Dispute Settlement Understanding which determines whether and how that opinion is to be taken into account by WTO tribunals. Where the ICJ considers questions of law which cannot be raised in the context of WTO dispute settlement proceedings, naturally the question of authority does not arise at all.

But quite apart from the question of authority, the reality is that this sort of contradictory jurisprudence is highly unlikely to occur in practice. All sorts of institutional pressures work against it. For one thing, for the reasons set out above, the WHO is likely to formulate the question in ways which direct the ICJ to issues of general international law, rather than asking directly for the ICJ's interpretation of WTO covered agreements. For another, as Simma, Kingsbury and others have reminded us, the ICJ has in the past gone out of its way not to tread on the toes of other international tribunals in the course of making its decisions, and there is every reason to expect this to continue.Footnote ⁴⁴ This is no doubt partly out of judicial comity, and also no doubt partly as a consequence of a felt professional need to avoid where possible, anything which obviously undermines the integrity and coherence of international law. To be clear, I am not suggesting that the ICJ should always limit itself so as not to encroach upon the domain of other tribunals—sometimes this may be appropriate, but sometimes a robust judicial dialogue on important questions of law will be desirable, as I shall argue below. What I am suggesting is simply that, if history and institutional culture are any indication, we should not expect the ICJ to do much which destabilizes existing WTO jurisprudence as it relates to WTO covered agreements.

As regards the problem of circumvention, there is no question of WTO Members using the ICJ's advisory jurisdiction to circumvent their obligations under DSU Article 23 to use WTO dispute settlement as the sole and exclusive means of settling disputes under the WTO covered agreements.Footnote ⁴⁵ Quite apart from the fact that an advisory opinion is not a means of settling a trade dispute, it is, of course, not the Members themselves but the WHO itself which approaches the ICJ in the scenario we are considering here. States have no authority to do so on their own behalf. Since the WHO requires at least half—and in all likelihood a two-thirds majority, of its members to make a request of the ICJ, it is simply not possible for anything other than a very substantial proportion of the international community to act in this way. The significant political checks on this process, in other words, ought to give comfort to even the most cautious WTO Member.

Third, as regards the issues of legitimacy and certainty, in my view, these point in the other direction. Imagine, unlikely as it may seem, what some might think of as the worst case scenario (‘worst’, that is, from the perspective of system coherence): an opinion from the ICJ which explicitly states that the FCTC requires Australia to implement plain packaging legislation which has been found to violate both the WTO covered agreements and the Hong Kong– Australia BIT, and that in this context Australia's FCTC obligations take priority. Is it fair to say that such an outcome will undermine the legitimacy of the decisions of the trade and investment tribunals, and undermine legal certainty for the parties? In my view, not at all. The reality is that, whatever the ICJ says or doesn't say, a decision by a trade or investment tribunal against Australia's plain packaging laws is likely to attract very considerable public criticism. Furthermore, whether or not the ICJ gives an advisory opinion on the matter, arguments will still certainly be made that these decisions are contrary to Australia's obligations under the FCTC, and therefore should not be complied with. In other words, serious problems of legitimacy and legal uncertainty will be present in this dispute whether or not the ICJ becomes involved. If anything, an ICJ decision may take some of the focus of public attention off the trade and investment tribunals, and perhaps help to facilitate some form of potentially productive political attention to the issue.

So much for the claims that an advisory opinion would potentially be damaging to the WTO and to relations between the WTO and the WHO. But is it also the case, more positively, that such an advisory opinion would be in the interests of WTO tribunals? Here, the evidence suggests quite clearly that WTO panels and the Appellate Body will indeed welcome—and happily take into account—the views of other international bodies on matters that they perceived to be outside the boundaries of their specialized expertise and mandate. On questions of general international law, WTO panels and the Appellate Body not uncommonly refer to ICJ decisions, and in fact for good institutional reasons show great reluctance to depart from them. They have, for example, referred to ICJ decisions on various questions relating to state responsibility, the precautionary principle, the principle of good faith, and other matters.Footnote ⁴⁶ Furthermore, even those cases which are typically cited as examples of the WTO's isolation from general international law, in fact provide support for the opposite, in a very specific sense. For example, while the Biotech panel's restrictive interpretation of Article 31(3)(c) of the VCLT, for example, had the effect of seriously restricting the circumstances in which WTO Panels are required to take into account ‘non-WTO’ law in the interpretation of WTO agreements, the same Panel was perfectly willing to accept that Panels could take such material into account if they were minded to do so under Article 31(1)(a), and in fact itself liberally took into account the views of other international organizations in the same case.Footnote ⁴⁷ The lesson from that case is not that WTO Panels are always and necessarily reluctant to take into account the views of other international tribunals, but that they wish to be in control of the circumstances in which they do so. To take another example, the historical reluctance of the WTO Panels and the Appellate Body substantively to consider arguments of parties based on the precautionary principle is in my view best understood as a reluctance to get ahead of other international tribunals on matters not within their specialized domain, and says nothing about the extent to which such bodies are likely to take into account clear, considered and well reasoned opinions of other international tribunals which state the law on matters of general international law.Footnote ⁴⁸

In the present case, it is clear that numerous questions are likely to arise on which WTO panels have no specialized expertise. There is every reason to think that these panels would welcome some authoritative guidance on such questions, and indeed would wish to avoid addressing them in the absence of such guidance. For example, WTO panels would almost certainly like to have some guidance on the controversial question of the precise meaning of the FCTC and its Guidelines as they apply in the plain packaging context—a matter entirely outside their domain of specialized knowledge. Similarly, the question of the applicability of Article 31(3)(c) in the context of two multilateral treaties with overlapping but non-identical memberships, has become so sensitive and difficult within WTO law, that one can imagine the WTO Appellate Body would like to have some words from the ICJ on which to base its own approach, even if it did not follow the ICJ's approach to the letter.Footnote ⁴⁹ This may well be one of those legal questions for which a process of ongoing judicial dialogue (including judicial contestation) amongst many tribunals may be the most effective process of achieving a modestly legitimate approach which commands relatively widespread assent. Certainly such a process would be preferable—especially from the perspective of the WTO—to WTO tribunals having to address the question solely on their own, with all the questions of legitimacy that this would entail.

IV. The icj faces no legal impediments to exercising its advisory jurisdiction

As is well known, there are three preconditions to the Court's exercise of its advisory jurisdiction: the request must come from an organ duly authorized to do so under the Charter; the request must be in respect of a ‘legal question’; and at least where the requesting organ is a specialized agency, the question must be one arising within the scope of activities of that organ.Footnote ⁵⁰ The first two of these give rise to no legal issues in the present context,Footnote ⁵¹ and the third has been addressed in Section II above. However, should those three elements be satisfied, the Court still has to consider whether there are good reasons to exercise its discretionary power to decline to give an advisory opinion.Footnote ⁵²

The Court's discretion whether or not to give an advisory opinion exists to ‘protect the integrity of the Court's judicial function’,Footnote ⁵³ and in exercising that jurisdiction, the ‘Court has to have regard to its character, both as a principal organ of the United Nations and as a judicial body’.Footnote ⁵⁴ It must not give an opinion where to do so would be inconsistent with its judicial character. Such a refusal, however, is rare: the ICJ has never exercised this discretion in any of the 26 requests which have been made of it, and its predecessor the Permanent Court of International Justice (PCIJ) famously did so only once, in its Status of Eastern Carelia opinion. It is the consistent practice of the ICJ to reaffirm that exercising its advisory jurisdiction ‘represents its participation in the activities of the [UN], and, in principle, should not be refused’;Footnote ⁵⁵ and that a request should be refused only for ‘compelling reasons’.Footnote ⁵⁶ It may also be relevant that the General Assembly has itself called for the Court's advisory jurisdiction to be used more frequently.Footnote ⁵⁷ As a result we may fairly expect that those arguing that the Court should not give an opinion will always face a high bar. In the following, I consider and reject the two most likely arguments for the Court to refuse to give an opinion in this case.

V. The benefits of engaging the icj's advisory jurisdiction

So far, I have argued that a request for an ICJ advisory opinion on certain questions relating to plain packaging disputes is a realistic possibility: the WHO has a strong interest in making such a request; other international bodies have little real reason to object; and there are no legal impediments to the ICJ exercising its jurisdiction. The question remains, however, what the benefits of this would be. Why, precisely, might we want the ICJ to get involved in this way? What is the most productive role it can play in this context?

The first point I wish to make is that we should not assume that engaging the ICJ is necessarily a centralizing or hierarchical move. This is a very important point, and one which is liable to be misunderstood. It is true that when Presidents Guillaume and Schwebel (and others) first proposed a role for the ICJ in response to problems of fragmentation, they did imagine that the ICJ would play something of a centralizing role. The ICJ, in their view would help to adjudicate differences of opinion between other international tribunals, decide points of law referred to them by specialized tribunals, and resolve normative conflicts between different parts of international law.Footnote ⁷⁷ They imagined the ICJ as something close to an apex constitutional court, bringing unity and coherence and certainty to the presently fragmented international legal order. However, since then, other international legal scholars have overwhelming responded that this centralizing vision is not only unrealistic, but also ultimately undesirable. The arguments they have raised are persuasive, and it is worth briefly recalling them.

At least three reasons have been offered as to why it is unrealistic to imagine that the ICJ could unify international law through the exercise of its advisory jurisdiction. First, as Oellers-Frahm and others have argued, the ICJ's advisory jurisdiction is by nature ill-suited to this role.Footnote ⁷⁸ The exercise of advisory jurisdiction will depend in the first instance on there being a relevant specialized agency with the authority, and the inclination, to make a request. Sometimes such an agency will exist, sometimes it will not. Even where it does, the nature and scope of the Court's opinion will be controlled by the terms of the question asked, not by the Court itself. Moreover, advisory opinions are non-binding, even for the bodies which request them. The degree to which the opinions of the Court are taken into account in the decision-making of other international judicial tribunals will therefore depend entirely on the rules, procedures and judicial cultures of those other tribunals. In most contexts, the formal juridical ‘bite’ of the Court's advisory opinions in other judicial contexts will be very limited, and their practical impact is likely to be felt through relatively ‘soft’ means. It is not at all clear, then, that the ICJ could effectively exercise a unifying function solely through its advisory jurisdiction, even if it were minded to.

Second, many of the Court's most perceptive observers have noted that the culture of the Court works strongly against the Court taking up a centralizing, quasi-constitutional role. The Court has traditionally been a relatively cautious body, particularly as regards its relations with other international tribunals. As both Dupuy and Simma have argued, the Court's tendency to avoid difficult and sensitive issues of law, as well as the care it usually takes to avoid conflicts of any sort with other tribunals, act as a major and enduring obstacle for those who wish to see it take a more robust approach to ensuring international legal coherence.Footnote ⁷⁹ It seems reasonable to expect that in many cases, particularly those involving politically and normatively sensitive issues, the Court would adopt a cautious and incremental approach to problems of fragmentation—avoiding fraught questions of high principle, formulating responses in deliberately general terms, framing opinions in ways which minimize their precedential impact, and so on, just as it has done in certain previous cases.Footnote ⁸⁰

Third, and perhaps most importantly, any attempt by the Court to produce unity and coherence is likely to be swamped by the powerful logics and social forces working in the direction of fragmentation. Koskenniemi and Leino, for example, make the simple but crucial point that the fragmentation of international law is not the result of technical mistakes but of political contestation.Footnote ⁸¹ As long as these underlying political differences exist, then, and as long as there are incentives for participants to engage in a strategy of ‘regime-shifting’Footnote ⁸², the active production of fragmentation will continue, and no single hierarchy is reasonably available. Teubner's and Fischer-Lescano's argument that fragmentation is the inevitable result of the multiplication and collision of relatively self-contained social systems also points to the futility of seeking a coherent and unified international legal order.Footnote ⁸³ Indeed, Craven takes the point one step further, persuasively arguing that fragmentation is a necessary feature of any body of legal practice attempting to overcome problems of difference and diversity. Any act of purported unification, he argues, is also always productive of difference.Footnote ⁸⁴

Similarly, a number of reasons have been offered as to why it might be normatively undesirable for the ICJ to adopt a quasi-constitutional role in response to fragmentation. Most of these are very familiar. For example, some have rightly argued that certain fundamental problems of international legal fragmentation are simply not amenable to final resolution through judicial means. This is partly because the underlying issues are highly sensitive and politically charged, such that any attempt to address them directly and finally by judicial means must raise serious questions of legitimacy.Footnote ⁸⁵ The normative conflicts associated with fragmentation, to echo the ILC Fragmentation Report, ‘require a legislative, not a legal-technical response’ and are not amenable to final resolution by judicial means in any simple sense.Footnote ⁸⁶ It is also partly the result of the structure of the international legal system, which contains too few effective institutional checks and balances on the exercise of international judicial power. In addition, many others argue that there is considerable value in a fragmented and pluralistic international legal order, regardless of its costs in terms of certainty and predictability. In this vein, Koch, Burke-White, Abi-Saab, Charney and others have all advocated their various visions of a pluralist dialogue amongst various international judicial tribunals, against a constitutionalizing, hierarchical vision of the ICJ's role in addressing problems of fragmentation.Footnote ⁸⁷

All of these arguments are persuasive, and have considerable force in the specific context of plain packaging disputes. We should therefore not imagine that engaging the ICJ's advisory jurisdiction in the way described in this article would, or even could, be a way of addressing in some final, substantive way the underlying values conflict at the heart of disputes over plain packaging. We should not ask, or expect, the ICJ to provide a final answer as to the international legality of plain packaging legislation (of one sort or another), nor should we expect it to resolve once and for all any substantive inconsistencies between the FCTC and various texts of international economic law. But if the ICJ ought not be asked to do these things, what can it do to productively intervene into international legal debates around plain packaging?

One answer is simply that an ICJ advisory opinion could contribute to the development of the ‘toolbox’ available to international lawyers to address problems of fragmentation in a reasoned and principled way.Footnote ⁸⁸ One of the most significant and most welcome contributions of the ILC Fragmentation Report was the way in which it moved the conversation about fragmentation from institutional to substantive questions. That is to say, what began largely as a debate about whether and how to build an institutional hierarchy to solve problems of international legal fragmentation, has come now primarily to be about how to understand and develop the doctrinal and normative tools that international law offers to resolve conflicts when they arise. The ILC Report thus identified and discussed seven such tools: the lex specialis principle; Articles 30 of the VCLT having to do with the relationship between successive treaties; Article 41 of the VCLT having to do with the modification of multilateral treaties through inter se agreements; treaty-based conflicts clauses; the concepts of jus cogens and obligations erga omnes; Article 103 of the UN Charter; and the principle of systemic integration as contained in Article 31(3)(c) of the VCLT. On one hand, it expressed some optimism that such tools enabled international lawyers to ‘respond in a flexible way to most substantive fragmentation problems’, and to ‘give expression to concerns … that are legitimate and strongly felt’.Footnote ⁸⁹ At the same time, the report also noted some aspects of these tools which were either underdeveloped or unsatisfactory.Footnote ⁹⁰ The simple point here, then, is that requesting an advisory opinion from the ICJ in the plain packaging context would give the World Court a perfect opportunity to take the lead in this effort. In particular, it would provide the Court with an opportunity to discuss and develop the principle of systemic integration, interpret the particular conflicts clause found in the FCTC, and possibly also to address certain issues around the application of VCLT Article 41 on inter se agreements.

This role seems to me to be particularly well suited to the stature and institutional position of the Court, as well as to its particular institutional culture. As the principal judicial organ of the UN, and as the only international court with plenary subject matter jurisdiction and responsibility for the international legal order as a whole, it is well placed to address such questions—better placed, it would seem, than specialized tribunals which speak with less intrinsic authority on questions of general international law. At the same time, the task of developing in general terms the normative ‘toolbox’ set out in the VCLT is one which is clearly productive, but at the same time pragmatically permits the Court both to avoid any appearance of undermining the authority of other international tribunals, and to sidestep those aspects of fragmentation disputes which it feels are inappropriate for resolution by any judicial tribunal.

A second benefit of ICJ advisory proceedings in the plain packaging context is that ICJ procedures could in principle provide a space for a greater diversity of actors to have their voices heard within international legal debates around plain packaging legislation. Unlike trade and investment tribunals, ICJ proceedings are routinely open to the public, and written submissions are typically publicly available. Importantly, in exercising its advisory jurisdiction, the ICJ is able to receive input from a much greater diversity of stakeholders than specialized tribunals. In accordance with Article 66 of its Statute, all states and all interested international organizations are routinely given an opportunity to furnish information to the Court in the course of the exercise of its advisory jurisdiction. Directly interested international organizations may also be given the opportunity to appoint ‘assessors’ under Article 30(2) of the Court's Statute.Footnote ⁹¹ Where the question asked of the Court directly affects a dispute to which an individual is a party, the Court has in the past required that such individuals are given the opportunity to have written submissions made available to the Court in accordance with the principle of equality of parties before the law.Footnote ⁹² In the plain packaging context, this procedure could in principle be used to permit individual investors to be granted similar procedural rights. Although the ICJ has so far been very reluctant to extend such rights to non-governmental organizations,Footnote ⁹³ its predecessor the PCIJ was considerably more flexible in this regard and there is arguably room for the ICJ to be so under its Statute.Footnote ⁹⁴ The point here is not to idealize the scope of participation rights in the ICJ—after all the ICJ itself has considerable limitations in this regard, and indeed in some respects trade and investment tribunals are actually more progressive on this front.Footnote ⁹⁵ However, it is fair to say that the engagement of the ICJ's advisory jurisdiction may help to ensure that legal issues are considered from a different set of perspectives than is typical in specialized tribunals, and that stakeholders currently under-represented in other venues may have a greater chance to have their voices heard in the context of ICJ proceedings.

The third, and probably the most important, answer is that an ICJ advisory opinion may help to instil a greater degree of reflexivity on the part of decision-makers in specialist tribunals. It is the defining characteristic of problems of fragmentation that they simultaneously implicate the interests of many different international legal regimes, such that the decisions made by one regime have the potential significantly to impact on the activities of others. In this context, the adoption of a ‘reflexive’ decision-making posture by individual international regimes means a number of things. Reflexivity means, for example, taking seriously the cross-cutting nature of the problem requiring decision, recognizing the inability of any one specialized institution to address it, and modifying the nature, scope and style of one's decision in response. It requires, accordingly, a heightened awareness of the impact of one's decision on domains and spheres of activity which are commonly considered ‘external’ to the regime. It also necessitates an awareness of the decision-makers own perspective: an awareness that each regime frames problems in its own way, and that these framings bring with them their own substantive biases and blindness. It therefore implies a decision-maker who is open to learning, including an openness to the revision (or at least reinterpretation) of institutional goals and values in light of the ‘external’ impacts of decisions.

Young has done the most to describe instances of reflexivity of this type in the context of international law, particularly in relation to the WTO.Footnote ⁹⁶ In the context of a study of negotiations over fisheries subsidies, she has demonstrated how certain forms of ‘regime interaction’ can—though only as one among several possibilities—lead to learning on the part of negotiators, through processes of information exchange, periodic review, normative borrowings and mutual scrutiny between regimes.Footnote ⁹⁷ Engaging the ICJ in the manner described here could, I would argue, have a similar effect on international judicial tribunals. For a variety of reasons having to do with their institutional mandates and the actors to whom they are directly accountable, it can sometimes be difficult for specialist tribunals to fully understand the significance of their decisions for international law as a whole, and equally difficult to comprehend the way in which their decisions might be perceived outside the regime of which they are a part.Footnote ⁹⁸ At times, this can mean that such tribunals address in only a cursory or inadequate way arguments which draw on sources of law which are perceived as external or marginal to the regime of which they are part. In my view, the anticipation of a subsequent ICJ opinion on these issues—with all the reputational and accountability issues that this implicitly accompanies such a process—is likely to generate greater care on the part of specialist tribunals on questions likely to be scrutinized by the ICJ, and may even prompt the reflexive imaginative leap required to consider the issues before them not only from within the mindset of their particular regime, but also from an external frame of reference. Subsequent judicial dialogue may have the same effect.

Of course, neither the mere act of issuing an advisory opinion, nor the mere commencement of a judicial dialogue, is likely to lead to reflexivity on its own. Much depends, for example, on the attitudes and decision-making styles adopted by participants in the conversation. On the one hand, enhancing reflexivity would require the ICJ to depart from the rather cautious and conflict-avoiding attitude it has tended to adopt until now. The task of promoting reflexivity relies on the ICJ becoming something like a ‘friendly thorn’ in its relations with other international tribunals—that is, adopting an attribute of respectful but critical scrutiny, highlighting (rather than minimizing) the ‘externalities’ of decisions of specialist tribunals, and robustly assessing the adequacy of these tribunals’ attempts to address them. In the context of the plain packaging dispute, this may mean, for example, carefully evaluating the way in which these tribunals respond to parties’ arguments based on general international law, and rigorously scrutinizing the techniques that specialist tribunals tend to use to minimize the possibility of inter-regime conflict. On the other hand, specialist tribunals themselves ought to adopt an attitude of openness to scrutiny. While it is hard to imagine that such tribunals would voluntarily agree to be bound by ICJ advisory opinions, it would be desirable for such tribunals to develop a practice of careful, explicit, and reasoned consideration of such opinions, particularly where they choose to depart from them. At the same time, as Young rightly notes, openness must go hand in hand with contestability: reflexivity is a two-way street, and part of the process must involve equally careful scrutiny of ICJ opinions by other tribunals, including as regards its processes of decision-making.Footnote ⁹⁹ Furthermore, we should not imagine that reflexivity leads, necessarily or even normally, to substantive convergence, but rather a process of continual self-critical reflection which is ideally entirely open-ended in its subsequent direction. The dynamic imagined here is something close to the relations of ‘mutual observation’ between international tribunals advocated by Teubner and Fischer-Lescano.Footnote ¹⁰⁰

It will be immediately clear to the reader this model of reflexive engagement is potentially relevant far beyond the plain packaging context. There are many problems of fragmentation and potential normative conflict in international law which could in principle give rise to the same procedure. The recent European implementation of its emission trading scheme to the aviation sector, to take one high-profile example, has given rise to questions about its international legality not only under WTO law but also the Chicago Convention on International Civil Aviation, the Kyoto Protocol, customary international law and the Open Skies Agreement. Should the International Civil Aviation Organization request an advisory opinion of the ICJ about the relationship between these agreements, and/or about the international legality of the EU emissions trading scheme more generally? It is certainly authorized to do so. Other examples can easily be imagined with only a little creativity. Could the International Labour Organization (ILO), for example, request an advisory opinion of the ICJ as to the international legality of ILO-authorized trade sanctions imposed on by WTO Members on another WTO Member in respect of labour rights abuses?Footnote ¹⁰¹ Could the Food and Agricultural Organization request an advisory opinion in respect of the relationship between the WTO's Agreement on the Application of Sanitary and Phytosanitary Measures and the Biosafety Protocol to the Convention on Biological Diversity? Could the same institution request an advisory opinion about the relationship between the diversity of international instruments relating to fisheries subsidies?Footnote ¹⁰² Might it be useful for the International Maritime Organization to request an advisory opinion concerning the international law governing forceful responses to Somali piracy, or the relationship between the range of treaties and customary international law relating to marine pollution and the safety of shipping?Footnote ¹⁰³

The argument presented here does not imply that the advisory jurisdiction of the ICJ should be used in all of these contexts. The consequences of doing so would potentially be very significant, and require careful thought. Three things make the plain packaging case somewhat unusual in this respect. For one thing, the problems of fragmentation are particularly acute, in the sense that the ‘external’ impacts of decisions by trade or investment tribunals are particularly strong and clear. Any adverse decision by one such tribunal, at least one which significantly impairs the ability of states to adopt plain packaging legislation, will fundamentally affect not only the work of the WHO but also that of public health authorities generally, in countries around the world. That this could happen on the basis of a decision of a tribunal which, by design, applies only a subsection of the applicable international legal rules, would necessarily lead to further confusion and difficulty. For another, these problems have already crystallized to a sufficient degree that the contours of the issue have come into focus, and a set of reasonably clear questions can be posed to the ICJ. The relevant legislation is in force, international legal challenges have already been initiated (indeed, in our imagined scenario, completed), and the usual political avenues for avoiding conflict have largely failed. Finally, the prospects that an ICJ opinion will have a beneficial impact are in my view good. Relations between the WHO and the WTO are strong enough that both institutions may well view this as an opportunity for learning. The interests of states are ambiguous enough that, perhaps, neither trade nor investment tribunals will feel under irresistible pressure from these constituencies, merely to resist and ignore pressure from the ICJ. On the contrary, both may feel that their legitimacy is at stake in the context of such a sensitive dispute, and be more willing to engage meaningfully in a dialogue with the ICJ. Where most or all of these conditions are missing—where, for example, externalities are unclear or less significant, where normative conflicts are hypothetical only, where political avenues for their redress remain viable or untested, and where the prospects of enhanced reflexivity are very weak—the wisdom of engaging this procedure may rightly be questioned.