The African awakening in United States - Upland cotton

Journal of World Trade

Volumn 39, Issue 6, 2005, Pages 1071-1093

  Zunckel, Hilton E ^a,b  

^a South African Law Firm Floor Incorporated   (South Africa)

^b Trade Law Centre for Southern Africa

Author keywords

[No Author keywords available]

Indexed keywords

COTTON; INTERNATIONAL TRADE;

NORTH AMERICA; UNITED STATES;

GOSSYPIUM HIRSUTUM;

EID: 33644662835     PISSN: 10116702     EISSN: None     Source Type: Journal    
DOI: 10.54648/trad2005058     Document Type: Review

References (70)

1. For pertinent examples of this see H.E. Zunckel, The rationale behind the reform of agricultural subsidies (2004), at 〈http://www.tralac.org/ scripts/content.php?id=2860〉 and
2. M.G. Desta, The law of international trade in agricultural products: from GATT 1947 to the WTO Agreement on Agriculture (2002), The Hague: Kluwer Law International.
3. WTO document WT/L/579, 2 August 2004, paragraph 1b.
4. WTO document WT/L/579, 2 August 2004. Hereafter referred to as the July Package.
5. See the July Package - WTO document WT/L/579, 2 August 2004, Annex A, paragraph 4.
6. See 〈http://www.wto.org/english/tratop_e/agric_e/ cotton_subcommittee_e.htm〉 (17 July 2005).
7. Upland Cotton: Report of the Panel United States Upland Cotton WT/DS 267/R 8 September 2004;
8. Upland Cotton: Report of the Appellate Body United States Upland Cotton WT/DS 267/AB/R 3 March 2005. Hereafter these are collectively referred to as Upland Cotton for ease of reference.
9. The author contends that the Upland Cotton reports hold many lessons to the interpretation of WTO law in agriculture by addressing elements of the Agreement on Agriculture in relation to the so-called Peace Clause, export subsidies and domestic support. In this regard see H.E. Zunckel, Cottoning on to United States Upland Cotton in Africa (September 2004) at 〈http://www. tralac.org/scripts/content.php?id=2972〉.
10. Upland Cotton, para. 7.197: The product is described as Gossypium hirsutum - planted and stub cotton that is produced from other than pure strain varieties of the Barbadense species, any hybrid thereof, or any other variety of cotton in which one or more of these varieties predominate.
11. The 13 third-party participants are Argentina, Australia, Benin, Canada, Chad, China, the European Communities, India, New Zealand, Pakistan, Paraguay, Chinese Taipei and Venezuela.
12. WTO Document WT/DS267/2, 15 October 2002.
13. For a discussion of these support mechanisms from an African perspective see H.E. Zunckel. Adequately Boxing Africa in the Debate on Domestic Support and Export Subsidies (2004) at 〈http://www.tralac.org/scripts/content.php?id= 1394〉.
14. Agreement on Agriculture, Article 10.2.
15. Article 13(b)(ii) of the Agreement on Agriculture states that payments are exempt from actions provided they do not grant support to a specific commodity in excess of that decided during the 1992 marketing year.
16. Agreement on Agriculture, Annex 2.
17. Ibid., para. 6.
18. The notation "SCM" used by the Appellate Body, refers to the WTO the Agreement on Subsidies and Countervailing Measures.
19. Appellate Body Report, Upland Cotton, WT/DS267/AB/R 3, para. 764.
20. K. Watkins, The impact of United States Cotton Subsidies on Africa, Oxfam Briefing Paper 30 (2002), p. 23.
21. K. Watkins, Oxfam Briefing Paper, Ibid., footnote 18, p. 17. These figures are often quoted throughout the ensuing legal texts. See for instance footnote 1330 of the
22. Upland Cotton Panel Report and para. 25 of the third-party submission of Benin and Chad to the Appellate Body. Also see note 31.
23. Following loosely from the Panel Report in Upland Cotton paragraph 7.54.
24. Understanding on rules and procedures governing the settlement of disputes. Article 10.
25. Upland Cotton Panel Report, Annex B-5, para. 19. Also see footnote 6.
26. Upland Cotton Panel Report, Annex E-4, paras 5-7.
27. See Upland Cotton Panel Report, footnote 119.
28. Upland Cotton Panel Report, Annex E-4, referring to WTO document WT/MIN(03)/W/2.
29. Upland Cotton Panel Report, Annex E-4, para. 35.
30. WTO document WT/MIN(01)/DEC/1 20 November 2001.
31. WTO document WT/L/579 2 August 2004. Para. 1b and Annex A, para. 4.
32. Upland Cotton Panel Report, para. 8.3(b).
33. To follow this progress see:〈http://www.wto.org/english/tratop_e/ agric_e/cotton_subcommittee_e.htm〉 (visited 22 August 2005).
34. K. Watkins, The impact of United States Cotton Subsidies on Africa, Oxfam Briefing Paper 30 (2002).
35. Oral submission of Benin and Chad to the Appellate Body, para. 29.
36. The following section is based on an interview conducted with Mr Brendan McGivem (White & Case - counsel to Benin and Chad) between 1 and 17 March 2005. White & Case is a New York headquartered law firm operating in 25 countries, 〈www.whitecase.com〉. The White & Case International Trade Group is based in Washington D.C. and has an office in Geneva.
37. Upland Cotton Panel Report, para. 7.54.
38. Appellate Body Report, EC - Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/AB/R, 25 September 1997, DSR 1997:II, p. 591.
39. UNCTAD Course on Dispute Settlement 3.2 Panels, p. 21.
40. For information on the ACWL, see 〈www.acwl.ch〉. The ACWL was unable to proceed with the representation directly due to their full workload at the time.
41. Note that in the present case the principal lawyer for Benin and Chad, already a seasoned practitioner before Panels and the Appellate Body, was acting to ensure that the voices of the African countries were heard in a dispute that was of critical importance.
42. For further information on this facility see 〈www.unctad.org/ disputesettlement/lawyerslist.htm〉.
43. Upland Cotton Appellate Body Report, para. 8.
44. See 〈www.sidley.com〉.
45. Note that for the first oral hearing before the Panel only Benin was present, as Chad had not yet become active in the proceedings.
46. The other two Panel members were Mr Mario Matus and Mr Daniel Moulis.
47. Upland Cotton Appellate Body Report, paras 209-214.
48. The reader will find the detailed explanation of the Appellate Body refusal to rule on this point in the Upland Cotton Appellate Body Report, paras 504-512.
49. See as examples the Upland Cotton Panel Report, paras 7.267, 7.990, 7.1211, 7.1233 and 7.1400 and paras 209-214 of the Appellate Body Report.
50. Upland Cotton Panel Report, para. 7.54 and footnote 118.
51. The following section is based on an interview conducted by the author with Dr Nicholas Minot (Research Fellow IFPRI Washington) on 25 February 2005. IFPRI is one of 15 food and environmental research organizations known as the "Future Harvest" centres. The centres are located around the world and conduct research in partnership with farmers, scientists, and policymakers to help alleviate poverty and increase food security. See 〈www.irpri. org〉.
52. Upland Cotton Panel Report, para. 1323.
53. Also see UNCTAD Course on Dispute Settlement 3.2 Panels, pp. 25-27.
54. N. Minot, and L. Daniels, Effect of Falling Cotton Prices on Rural Poverty in Benin, MSSD Discussion Paper No. 48 (November 2002) on 〈www.ifpri.org〉. For the legal reader pp. 49-51 contain a non-technical summary of the economic results.
55. See Oral submission of Benin and Chad to the Appellate Body at para. 6 and Upland Cotton Panel Report, Annex E-4 paras 22-24.
56. See Oral submission of Benin and Chad to the Appellate Body referring to Minot at footnote 19.
57. See K. Watkins, The impact of United States Cotton Subsidies on Africa, Oxfam Briefing Paper 30 (2002) supra, footnotes 18 and 19.
58. Note that viva voce evidence in WTO DSU proceedings, while not unprecedented, is somewhat rare, especially by a third party.
59. The use of econometric modelling in the Upland Cotton dispute is worthy of a paper on its own. See Upland Cotton Panel Report, para 7.14-7.19 where the respective modelling experts for Brazil and the United States, Professor Daniel Sumner and Dr Joseph Glauber cross swords. The passage makes for an entertaining, albeit concern-raising read.
60. In US, Cotton cries betrayal, Washington Post, 14 May 2004, 〈www.washingtonpost.com/wp-dyn/articles/A18996-2004May11.html〉 visited 1 March 2005.
61. Quotations, In US, Cotton Cries Betrayal, ibid., footnote 56.
62. Upland Cotton Panel Report, para. 7.18, sub-point 2.
63. Upland Cotton Panel Report, Ibid., footnote 48.
64. Estimate obtained in correspondence with a leading Washington-based law firm on 22 September 2004.
65. The author formerly practised as a financial manager.
66. Oxfam Briefing Paper 30, p. 19.
67. The East African, 11 August 2004, relayed on 〈www.tralac.or〉 (22 March 2005).
68. WTO document WT/L/579, 2 August 2004, para. 1(b) and Annex A, para. 4.
69. Comment made to the author by the WTO Secretariat (August 2004) and by the Chair of the WTO Committee on Agriculture, Ambassador Tim Groser (22 April 2005).
70. Upland Cotton Panel Report, Annex E-4, para. 1.