Determining the Precedence of International Agreements: WTO vs. CPB

1. 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

2. Conflicts between international agreements 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.

3. Problem starts with diverging national rules With differing rules

4. Asynchronous reg activity—firms & govts

5. Overall asynchronous decisions Canada, US and Japan The rest

6. Amplified by trade

7. 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”

8. 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

9. Disputes between CPB members: • Regarding trade disputes, the CPB defers to Article 27 of the CBD • Art. 27 encourages Parties to resolve the problembilaterally • If unsuccessful, prompt disputants to use 3rd party mediation • Failing that the dispute is to be referred to the International Court of Justice

10. 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

11. The more difficult problem Importers but non-adopters, WTO and CPB members: EU et al. Mega adopters and exporters: WTO and CPB members: Brazil, India, China, South Africa, Pakistan, Uruguay, Bolivia, Philippines, Australia … WTO members but not CPB: US, Canada and Argentina Only CPB :Sudan, Algeria

12. Footer Text

13. Vienna Convention on Law of Treaties, Art 30 • 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. • 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?)

14. 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.

15. 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.

16. 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