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
Conflicts between international agreements
In 1973 Ian Sinclair observed
“with the post-war growth in international cooperation, 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.
Problem starts with diverging national rules
Enforced systems
Systems
sometimes
enforced
Planned
systems
Mandatory
ANZ, China , EU, Mexico,
Norway, Japan, Russia,
Saudi Arabia, S. Korea,
Switz., Taiwan
12
20
Voluntary
Argentina, Canada, HK,
RSA, USA
0
1
Type of
labels
(Phillips and McNeil 2000 and Guère and Rao 2007).
With differing rules
Asynchronous reg activity—firms & govts
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://ceragmc.org/index.php?action=gm_crop_database).
Overall asynchronous decisions
Canada, US
and Japan
The
rest
Amplified by trade
Crop
Maize/Corn
Soybean
Canola
Potato
Papaya
Sugar beet
# states
approved and
producing
16
11
4
3
2
2
% production % exports from
from
producing
producing
states
states
55%
85%
24%
4%
1%
5%
69%
97%
53%
17%
12%
5%
Sources: Authors calculations using data from ISAAA and FAOStat.
Total #
importers
193
170
117
200
129
108
Complication of diverging obligations:
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 assessment
AND Art 26, socio-economic considerations
Savings clauses: “consistent with international
obligations” but “not subordinate”
At least 16 possible Art 26 SECs, including:
Cultural, spiritual and ethical aspects
Farmers’ rights
Food security
Gender impacts
Indigenous and local communities impacts on
livelihoods, knowledge and biodiversity
Labour and employment
Land tenure
Rural-urban migration
Disputes between CPB members:
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
International Court of Justice
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
The more difficult problem
Mega adopters and exporters:
WTO members
but not CPB:
WTO and CPB
members:
US, Canada
and Argentina
Brazil, India,
China, South
Africa, Pakistan,
Uruguay, Bolivia,
Philippines,
Australia …
Importers but
non-adopters,
WTO and CPB
members:
EU et al.
Only CPB :
Sudan, Algeria
Table 1: Comparison of WTO and CPB – Reasons for Trade Barriers and Avenues to Complain
WTO
CBP
Venue for
Venue for
Complaint
Complaint
Justification for
Complaint
Complaint
Trade Barrier
Sanitary or Phytosanitary concern
Science-based
Scientific justification
Scientific justification
No avenue for
WTO DSM
insufficiently
threat
insufficiently substantiated
appeal
substantiated
Risk level
Risk assessment not
Risk assessment not
No avenue for
WTO DSM
unacceptable
properly conducted
properly conducted
appeal
Insufficient
Scientific evidence is
Scientific evidence is
No avenue of
WTO DMS
scientific
sufficient
sufficient
appeal
information
(precaution)
Socioeconomic
No avenue of
Not allowed in SPS
WTO DSM
Analysis was flawed
considerations
appeal
Technical Barrier to Trade requirement
NA (by definition all GMOs
Novel product
Like product
WTO DMS
Not applicable
can have trade barriers
applied)
Production and
Not allowed as a
Not applicable
WTO DSM
Not applicable
Processing Method justification of trade
(biotechnology is a PPM and
concern
barrier
the reason for the CBP)
Socioeconomic
Benefits outweigh the
No avenue of
WTO DSM
Analysis was flawed
considerations
costs
appeal
Agreement allows
WTO does not have
CBP does not have
WTO DMS
IJC
Footer Text
Date
12
trade barrier
jurisdiction
jurisdiction
Vienna Convention on Law of Treaties, Art 30
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 subjectmatter 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?)
Article 30 of the Vienna Convention
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.
One further complication – and the result?
 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/IJC
 Both 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.
Conclusions
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
matter
Are 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