Determining the Precedence of International Agreements: WTO vs. CPB

SJ Smyth, PWB Phillips, WA Kerr and M Phillipson University of Saskatchewan

ICABR, Ravello, Italy, 20 June 2013

In 1973 Ian Sinclair observed

“with the post-war growth in international co-operation, accompanied by a massive increase in the numbers and range of international agreements of a law-making character, the problem of incidental conflict between successive treaties has become more acute.”

Source: Sinclair, I. 1973. The Vienna Convention on the Law of Treaties. 1st ed. Manchester: Manchester University Press.

Conflicts between international agreements

Type of labels Enforced systems

Systems sometimes enforced

Planned systems

MandatoryANZ, China , EU, Mexico, Norway, Japan, Russia, Saudi Arabia, S. Korea,

Switz., Taiwan 12 20

Voluntary Argentina, Canada, HK, RSA, USA 0 1

(Phillips and McNeil 2000 and Guère and Rao 2007).

Problem starts with diverging national rules

With differing rules

Table 1: Regulatory decisions related to GM events in 19 key markets, 1995-2011

# recorded decisions % of maximum possible decisions

# species

Enviro approval

Food approval

# species

Enviro approval

Food approval

Average 4.6 12.0 26.5 29% 12% 24%

Max 16 102 97 - - -

Source: Author’s calculation of tabulations from GM Crops Database (http://cera-gmc.org/index.php?action=gm_crop_database).

Asynchronous reg activity—firms & govts

Overall asynchronous decisions

Canada, US and Japan

The rest

Crop # states approved and

producing

% production from

producing states

% exports from producing

states

Total # importers

Maize/Corn 16 55% 69% 193Soybean 11 85% 97% 170Canola 4 24% 53% 117Potato 3 4% 17% 200Papaya 2 1% 12% 129Sugar beet 2 5% 5% 108 Sources: Authors calculations using data from ISAAA and FAOStat.

Amplified by trade

Health and safety have long been used as disguised barriers in the trade of food and agricultural products—working for more than 100 years to limit

Most recent MEAs fit with WTO provisions, which allows barriers to trade based on scientific risk assessments and legitimate objectives

Now CPB allows for barriers for:Risks identified through scientific assessmentAND Art 26, socio-economic considerations Savings clauses: “consistent with international

obligations” but “not subordinate”

Complication of diverging obligations:

Cultural, spiritual and ethical aspectsFarmers’ rightsFood securityGender impactsIndigenous and local communities impacts on

livelihoods, knowledge and biodiversityLabour and employmentLand tenureRural-urban migration

At least 16 possible Art 26 SECs, including:

Regarding trade disputes, the CPB defers to Article 27 of the CBD

Art. 27 encourages Parties to resolve the problem bilaterally

If unsuccessful, prompt disputants to use 3rd party mediation

Failing that the dispute is to be referred to the International Court of Justice

Disputes between CPB members:

Since its establishment in 1945, it has never dealt with an agricultural case

In 1947 the General Agreement on Tariffs and Trade (GATT) was purposely created to deal with the problem of how tariffs were being used to affect international trade

It is highly unlikely that the IJC would rule on an agricultural case explicitly

The IJC might rule on whether a SEC policy exceeded the ambit of the CBP

International Court of Justice

The more difficult problem

WTO members but not CPB:

US, Canada and Argentina

Importers but non-adopters,

WTO and CPB members:

EU et al.

WTO and CPB members:

Brazil, India, China, South

Africa, Pakistan, Uruguay, Bolivia,

Philippines, Australia …

Mega adopters and exporters:

Only CPB :Sudan, Algeria

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Table 1: Comparison of WTO and CPB – Reasons for Trade Barriers and Avenues to Complain

Justification for Trade Barrier

WTO CBPComplaint Venue for

Complaint Complaint Venue for

Complaint Sanitary or Phytosanitary concernScience-based threat

Scientific justification insufficiently substantiated

WTO DSM Scientific justification insufficiently substantiated

No avenue for appeal

Risk level unacceptable

Risk assessment not properly conducted

WTO DSM Risk assessment not properly conducted

No avenue for appeal

Insufficient scientific information (precaution)

Scientific evidence is sufficient

WTO DMS Scientific evidence is sufficient

No avenue of appeal

Socioeconomic considerations

Not allowed in SPS WTO DSM Analysis was flawed No avenue of appeal

Technical Barrier to Trade requirement Novel product Like product WTO DMS NA (by definition all GMOs

can have trade barriers applied)

Not applicable

Production and Processing Method concern

Not allowed as a justification of trade barrier

WTO DSM Not applicable (biotechnology is a PPM and the reason for the CBP)

Not applicable

Socioeconomic considerations

Benefits outweigh the costs

WTO DSM Analysis was flawed No avenue of appeal

Agreement allows trade barrier

WTO does not have jurisdiction

WTO DMS CBP does not have jurisdiction

IJC

1. Subject to Article 103 of the Charter of the United Nations, the rights and obligations of States parties to successive treaties relating to the same subject-matter shall be determined in accordance with the following paragraphs.

2. When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail (NB: remember ‘consistent with international obligations’—WTO rules?)

Vienna Convention on Law of Treaties, Art 30

3. When …parties to the earlier treaty are parties also to the later treaty … the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty.

4. When the parties to the later treaty do not include all the parties to the earlier one: …

(b) as between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations.

Article 30 of the Vienna Convention

Lagomarsino posits even states in favour of SEC-based measures (who may be skeptical of the WTO and its perceived biases) might prefer the WTO because of its “effective and binding dispute settlement system”

Result could be multiple adjudications of obligations:Both parties to CPB (at least one not in WTO) litigating via

CBD/IJCBoth parties to CPB litigating via CBD/IJC?Both parties to CPB and litigating via WTO/DSM?US/Can/Arg vs CPB member, litigating via WTO/DSM (possibly

seeking ruling against CPB SEC provisions)

Source: Lagomarsino, J. 2010. WTO Dispute Settlement and Sustainable Development: Legitimacy Through Holistic Treaty Interpretation. 28 Pace Environmental Law Review 545.

One further complication – and the result?

WTO has broadest membership, jurisdiction, mechanisms and rules to adjudicate disputes between GM adopters and exporters and leading importers and parties to the CPB; issue will be how they deal with measures based on SECs

Issues:CPB inclusion of the phrase “consistent with their international

obligations” is crucial—may (??) sort the matterAre WTO and CPB similar subject areas? If not , WTO would

take precedence in a trade dispute

Countries implementing SECs will need to be cognizant of WTO commitments

Conclusions