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 The Vienna Convention on the Law of Treaties. 1 st ed. Manchester: Manchester University Press. Conflicts between international agreements

Type of labels Enforced systems Systems sometimes enforced Planned systems Mandatory ANZ, China, EU, Mexico, Norway, Japan, Russia, Saudi Arabia, S. Korea, Switz., Taiwan 1220 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, # recorded decisions% of maximum possible decisions # species Enviro approval Food approval # species Enviro approval Food approval Average %12%24% Max Source: Author’s calculation of tabulations from GM Crops Database ( 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/Corn1655%69%193 Soybean1185%97%170 Canola424%53%117 Potato34%17%200 Papaya21%12%129 Sugar beet25% 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 assessment  AND Art 26, socio-economic considerations  Savings clauses: “consistent with international obligations” but “not subordinate” Complication of diverging obligations:

 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 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 3 rd 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

Footer Text 12 Date Table 1: Comparison of WTO and CPB – Reasons for Trade Barriers and Avenues to Complain Justification for Trade Barrier WTOCBP ComplaintVenue for Complaint ComplaintVenue for Complaint Sanitary or Phytosanitary concern Science-based threat Scientific justification insufficiently substantiated WTO DSMScientific justification insufficiently substantiated No avenue for appeal Risk level unacceptable Risk assessment not properly conducted WTO DSMRisk assessment not properly conducted No avenue for appeal Insufficient scientific information (precaution) Scientific evidence is sufficient WTO DMSScientific evidence is sufficient No avenue of appeal Socioeconomic considerations Not allowed in SPSWTO DSMAnalysis was flawedNo avenue of appeal Technical Barrier to Trade requirement Novel productLike productWTO DMSNA (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 DSMNot applicable (biotechnology is a PPM and the reason for the CBP) Not applicable Socioeconomic considerations Benefits outweigh the costs WTO DSMAnalysis was flawedNo avenue of appeal Agreement allows trade barrier WTO does not have jurisdiction WTO DMSCBP 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/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 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 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 Conclusions