The Waiver power of the WTO: Opening the WTO for political debate on the reconciliation of competing interests

European Journal of International Law

Volumn 20, Issue 3, 2009, Pages 615-645

  Feichtner, Isabel ^a  

^a MAX PLANCK INSTITUTE FOR COMPARATIVE PUBLIC LAW AND INTERNATIONAL LAW   (Germany)

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[No Author keywords available]

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EID: 74549205199     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chp039     Document Type: Article

References (180)

1. W. Friedmann, The Changing Structure of International Law, 1964, at 62 ff
2. Cf. Weiler and Motoc, 'Taking Democracy Seriously: The Normative Challenge to the International System', in S. Griller (ed.), International Economic Governance and Non-Economic Concerns (2003), at 47, 63 ff.
3. The term 'international legal regime 'as used throughout this article encompasses international treaties, international organizations, and other international institutions, but also bodies of non-binding norms with or without an institutional structure
4. Holger Hestermeyer refers to this as the 'factual hierarchy of regimes': H. Hestermeyer, Human Rights and the WTO. The Case of Patents and Access to Medicines (2007), at 193 ff.
5. While Eyal Benvenisti and George W. Downs cite American authors (with the exception of Martti Koskenniemi and Päivi Leino) to support their thesis that few legal theorists view fragmentation as a serious problem (Benvenisti and Downs, 'The Empire's New Clothes: Political Economy and the Fragmentation of International Law', 60 Stanford L Rev (2007) 598, at 600-604) legal scholarship in Europe draws a different picture. There PhD theses on the effects of fragmentation and avenues to achieve coherence abound.
6. To name just a few, see, e.g., M. Böckenförde, Grüne Gentechnik und Welthandel (2004)
7. Hestermeyer, supra note 3
8. N. Matz, Wege zur Koordinierung völkerrechtlicher Verträge (2005)
9. J. Pauwelyn, Conflict of Norms in Public International law (2003)
10. S. Vöneky, Die Fortgeltung des Umweltvölkerrechts in Internationalen Bewaffneten Konflikten (2001).
11. These works focus by and large on the doctrinal tools to address norm conflict which were also presented in the International Law Commission, Fragmentation of International Law. Difficulties Arising From the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, finalized by Martti Koskenniemi, A/CN.4/L.682 (13 Apr. 2006).
12. See, e.g., Matz, s upra note 4, at 340-389
13. for a work focussing on international tribunals see Y. Shany, The Competing Jurisdictions of International Courts and Tribunals (2003).
14. An example is the proposal to include non-trade experts, such as for example cultural experts, in panels which adjudicate on cases in which cultural interests are at stake: see Graber, 'The New UNESCO Convention on Cultural Diversity: A Counterbalance to the WTO', 9 J Int'l Economic L (2006) 553, at 571 ff
15. for suggestions on institutional solutions to conflicts between the TRIPS Agreement and human rights see Hestermeyer, supra note 3, at 287-288
16. On fragmentation as resulting from differences in normative preferences and policy conflicts and not lack of coordination cf. Koskenniemi, 'What is International Law for', in M.D. Evans (ed.), International Law (2nd edn, 2006), at 57, 76
17. for the view that the reason for fragmentation lies in contradictions between society-wide institutionalized rationalities see Fischer-Lescano and Teubner, 'Regime-Collisions. The Vain Search for Unity in the Fragmentation of Global Law', 25 Michigan J Int'l L (2004) 999, at 1004
18. for an explanation of fragmentation as a function of powerful states 'strategies to pursue their interests see Benvenisti and Downs, supra note 4, at 595-631. Despite their differences all of these authors recognize that fragmentation, and more specifically norm conflict, is a reflection of conflicts in society.
19. For the view that social conflict needs to be solved by political means cf. Scobbie, 'Wicked Heresies or Legitimate Perspectives? Theory and International Law', in Evans (ed.), supra note 8, at 83, 86.
20. Cf. only T. Broude, International Governance in the WTO: Judicial Boundaries and Political Capitulation (2004).
21. General Council, Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, Decision of 30 Aug. 2003, WT/L/540 (2 Sept. 2003).
22. General Council, Waiver Concerning Kimberley Process Certification Scheme for Rough Diamonds, Decision of 15 May 2003, WT/L/518 (27 May 2003). The waiver was extended in 2006 by General Council Decision of 15 Dec. 2006, WT/L/676 (19 Dec. 2006).
23. On the TRIPS Waiver see, e.g., Hestermeyer, supra note 3, at 261- 272
24. Abbott, 'The WTO Medicines Decision', 99 AJIL (2005) 317
25. On the Kimberley Waiver see, e.g., Nadakavukaren Schefer, 'Stopping Trade in Conflict Diamonds: Exploring the Trade and Human Rights Interface with the WTO Waiver for the Kimberley Process', in T. Cottier, J. Pauwelyn, and E. Bürgi, Human Rights and International Trade (2005), at 391
26. Pauwelyn, 'WTO Compassion or Superiority Complex? What to Make of the WTO Waiver for "Conflict Diamonds"', 24 Michigan J Int'l L (2003) 1177
27. While all of these powers can be exercised by the General Council, which conducts the functions of the Ministerial Conference between meetings (Art. IV(2) WTO Agreement), the power to adopt interpretations is explicitly granted not only to the Ministerial Conference, but also to the General Council (Art. IX(2)(1) WTO Agreement).
28. The adoption of an amendment decision does not immediately modify legal obligations since an amendment becomes effective only when the acceptance requirements set out in Art. X WTO Agreement are met.
29. In addition to these specific decision-making powers, Art. IV(1)(3) WTO Agreement provides for a general decision-making power of the Ministerial Conference: '[t]he Ministerial Conference shall have the authority to take decisions on all matters under any of the Multilateral Trade Agreements, if so requested by a Member, in accordance with the specific requirements for decision-making in this Agreement and the relevant Multilateral Trade Agreement'. Whether decisions taken in accordance with Art. IV(1) WTO are legally binding is open to interpretation: see Kuijper, 'Some Institutional Issues Presently before the WTO', in D.L.M. Kennedy and J.D. Southwick (eds), The Political Economy of International Trade Law (2002), at 81, 82.
30. Some authors have interpreted the Doha Declaration on Public Health and the TRIPS Agreement as one; for this view see, e.g., Hestermeyer, supra note 3, at 281 (with further references).
31. General Council Decision of 6 Dec. 2005, WT/L/641 (8 Dec. 2005), proposing an amendment to the TRIPS Agreement.
32. Each Annual Report of the WTO contains a list of waivers granted under Art. IX (3) WTO Agreement during the period covered by the report. For example, the WTO Annual Report 2008 lists at 18 6 waiver decisions which were adopted in 2007; it is available at: www.wto.org/english/res_e/reser_e/annual_report_e.htm (last visited 28 May 2009).
33. The Multilateral Trade Agreements are the agreements and associated legal instruments included in Annexes 1, 2, and 3 of the WTO Agreement (Art. II(2) WTO Agreement); these are the Multilateral Agreements on Trade in Goods (Annex 1A), the General Agreement on Trade in Services (Annex 1B), the Agreement on Trade-Related Aspects of Intellectual Property Rights (Annex 1C), the Understanding on Rules and Procedures Governing the Settlement of Disputes (Annex 2), and the Trade Policy Review Mechanism (Annex 3).
34. According to footnote 4 to Art. IX(3) WTO Agreement, consensus is required for a decision to waive obligations subject to a transition period or a period for staged implementation.
35. Art. XXV(5) GATT, the waiver competence under the GATT, required a two-thirds majority of the votes cast, representing more than half of the contracting parties.
36. On 15 Nov. 1995 the General Council agreed that decisions concerning waivers and accessions would be taken in accordance with Art. IX(1) WTO Agreement by consensus; only when consensus cannot be arrived at is voting to take place: see General Council, Decision-Making Procedures under Arts. IX and XII of the WTO Agreement, Decision of 15 Nov. 1995, WT/L/93 (24 Nov. 1995).
37. The statement also specifies that a member may request a vote at the time the decision is taken. Further procedural requirements are set out in Art. IX(4) WTO Agreement, the Understanding in Respect of Waivers of Obligations under the GATT 1994, and a decision of the CONTRACTING PARTIES of 1956, Guiding Principles to be Followed by the CONTRACTING PARTIES in Considering Applications for Waivers from Part I or Other Important Obligations of the Agreement, BISD 5S/25.
38. For the GATT 1947 see J.H. Jackson, World Trade and the Law of GATT (1969), at 544
39. Marinberg, 'GATT/WTO Waivers: "Exceptional Circumstances" as Applied to the Lomé Waiver', 19 Boston U Int'l LJ (2001) 129 is critical of the waiver practice under the WTO
40. The legal requirements that waivers may only be of a limited duration and have to be reviewed annually did not exist under the GATT 1947 and were negotiated during the Uruguay Round
41. Panel Report, US - Sugar Waiver, BISD 37S/228, at para. 5.9 Appellate Body Report, EC - Bananas III, WT/DS27/AB/R, at para. 185; Appellate Body Report (Art. 21(5) DSU), WT/DS27/AB/RW2/ECU and WT/DS27/AB/RW/USA, at para. 382.
42. UN Economic and Social Council Preparatory Committee of the International Conference on Trade and Employment, Verbatim Report of the Ninth Meeting of Committee V held on 7 Nov. 1946, E/PC/T/C.V/PV/9, at 8; the French delegate at the same meeting stated that the waiver power should allow for merely temporary exemptions (ibid., at 9).
43. See, e.g., W. Benedek, Die Rechtsordnung des GATT aus völkerrechtlicher Sicht (1990), at 164; Marinberg, supra note 24, at 129
44. Gold, '" Dispensing "and" Suspending "Powers of International Organizations', in J. Gold, Legal and Institutional Aspects of the International Monetary System. Selected Essays (1979), at 352
45. ILC Special Rapporteur A. Pellet, Fifth report on reservations to treaties (2000), A/CN.4/508/Add. 1, at para. 138.
46. John Jackson, however, called the waiver power under the GATT 1947 '[p]erhaps the most important single power of the CONTRACTING PARTIES': see J. Jackson, World Trade and the Law of GATT (1969), at 541.
47. For a table of waivers granted in the WTO until 30 June 2001 and grouped into waivers concerning the Harmonized System, waivers concerning Regional Trade Agreements, and other waivers see WTO, Analytical Index I, Marrakesh Agreement (2003), at para. 183.
48. For a table of waivers granted under the GATT 1947 see WTO, Analytical Index, Guide to GATT Law and Practice (1995), ii, at 892-906
49. Other waivers that can be placed into this category are the collective Harmonized System waivers which suspend Art. II GATT to enable members to implement a specific set of Harmonized System changes: see, e.g., WT/L/674. Collective waiver decisions are also discussed as a mechanism to coordinate WTO law and Multilateral Environmental Agreements which provide for trade measures: see WTO Secretariat, 'Multilateral Environmental Agreements (MEAs) and WTO Rules. Proposals made in the Committee on Trade and Environment (CTE) from 1995-2002', TN/TE/S/1 (23 May 2002).
50. CONTRACTING PARTIES, Decision of 25 June 1971, L/3545 (28 June 1971)
51. CONTRACTING PARTIES, Decision of 26 Nov. 1971, L/3636 (30 Nov. 1971).
52. General Council Decision of 15 June 1999, Preferential Tariff Treatment for Least-Developed Countries, WT/L/304 (17 June 1999). On 12 May 2009 the General Council approved a 10-year extension of this waiver: see www.wto.org/english/news_e/news09_e/good_12may09_e.htm (last visited 28 May 2009).
53. The KPCS Document is available at: www.kimberleyprocess.com/documents/basic_core_documents_en.html
54. For a detailed account of the connection between diamond-mining and trading and violent conflicts and of how public awareness was raised by NGOs such as Global Witness and Canada Africa Partnership and led to action of the international community see Nadakavukaren Schefer, supra note 13, at 391, 391-416
55. A connection was also made between diamond trade and the financing of international terrorism: see references in Pauwelyn, supra note 13, at 1186, n. 38.
56. KPCS, Section I, the definition of conflict diamonds refers to relevant SC resolutions and the definition of conflict diamonds in GA Res 55/56, at recital 2
57. Interlaken Declaration of 5 Nov. 2002 on the Kimberley Process Certification Scheme for Rough Diamonds, supra note 34, at recital 1.
58. Ibid., recital 6 of which notes 'the important contribution made by industry and civil society to the development of the Kimberley Process Certification Scheme'. Information on the Kimberley Process is available at: www.kimberleyprocess.com/home/index_en.html (28 May 2009).
59. SC Res. 1173 (1998) instituted an embargo on the importation of diamonds from Angola, which were not certified by the Government of Unity and National Reconciliation (para. 12 (b)); see also SC Res 1176 (1998) SC Res 1306 (2000), embargo on imports of rough diamonds from Sierra Leone which are not certified by Sierra Leone's certification of origin regime (paras 1, 5).
60. GA Res 55/56 (2000); see also GA. Res 56/263 (2002).
61. See, e.g., GA Res 57/302 (2002) and SC Res 1459 (2003).
62. Cf. Ruggie, 'Business and Human Rights: The Evolving International Agenda', 101 AJIL (2007) 819, at 839.
63. The KPCS sets out certain requirements for the process of issuing certificates. Most importantly, participants should 'establish a system of internal controls designed to eliminate the presence of conflict diamonds from shipments of rough diamonds imported into and exported from its territory '(Section IV(a)). The certificate thus shall ensure that only diamonds which come from areas which are controlled by the legitimate government of a country enter the market.
64. Section III(a) and (b)
65. Section III(c)
66. For criticism of the effectiveness of the KP see Partnership Africa Canada and Global Witness, Illicit Diamond Flows, Kimberley Process, Note for Plenary, Nov. 2007, available at: www.globalwitness.org/media_library_detail.php/604/en/illicit_diamond_flows (last visited 28 May 2009).
67. The European Communities have implemented the KPCS by Council Reg 2368/2002, OJ (2002) L358/28, the US by the Clean Diamond Trade Act (Public Law 108-19 (25 Apr. 2003)).
68. See Terms of Reference of the Participation Committee, Administrative Decision on Participation Committee of 29 October 2004. available at: www.kimberleyprocess.com/structure/working_group_en.html (last visited 28 May 2009). Para. 4.3 of the Terms of Reference reads: '[i]f the Committee concludes that the Participant no longer meets the said requirements it will inform the Chair in writing of the reasons for such a conclusion and may recommend any further action that the Committee believes is appropriate'.
69. For a list of KPCS Participants who meet the minimum requirements see www.kimberleyprocess.com/structure/participants_world_map_en.html (last visited 28 May 2009).
70. See Chairman of the Kimberley Process, Non-Paper, Kimberley Process Workshop on WTO Conformity, 15-17 Feb. 2002 (revised version 14 Mar. 2002), available at: www.kimberleyprocess.com/download/getfile/42 (last visited 29 May 2009). With respect to the prohibition on trade in uncertified diamonds between participants, the predominant view seemingly was that this prohibition was in conformity with WTO law.
71. It also seems to be the predominant view in the literature that the trade bans are justified under the general exceptions in Art. XX GATT or the security exception in Art. XXI GATT. See, e.g., Price, 'The Kimberley Process: Conflict Diamonds, WTO Obligations, and the Universality Debate', 12 Minnesota J Global Trade (2003) 1, at 48 ff
72. Pauwelyn, supra note 13, at 1189 ff
73. Nadakavukaren Schefer, supra note 13, at 418 ff; more critical as to the justification of the trade restrictions under GATT exceptions is Gray, 'Conflict Diamonds and the WTO: Not the Best Opportunity to Be Missed for the Trade-Human Rights Interface', in Cottier, Pauwelyn, and Bürgi (eds), supra note 13, at 451
74. See Price, supra note 52, at 5
75. Communication from Canada, Japan, and Sierra Leone, Kimberley Certification Scheme for Rough Diamonds - Request for a WTO Waiver, 11 Nov. 2002, G/C/W/431 (12 Nov. 2002).
76. See the minutes of the meetings of the Council for Trade in Goods on 22 Nov. 2002, G/C/M/66 (4 Dec. 2002) (suggestion by the chairman that Canada carry out consultations and that the Council for Trade in Goods revert to the issue at a later time (para 6.16)) and on 23 Jan. 2003 and 26 Feb. 2003, G/C/M/68 (6 Mar. 3003) (these minutes refer to consultations on 16 Jan. 2003 with 30 delegations (para. 1.2) and an open-ended informal meeting on 18 Feb. 2003 (para. 1.4)).
77. General Council, supra note12. By that time Australia, Brazil, Israel, the Philippines, Thailand, the United Arab Emirates, and the US had joined the waiver request: see G/C/W/431/Corr. 1 and Corr. 2.
78. General Council Decision of 15 Dec. 2006, WT/L/676 (19 Dec. 2006).
79. WT/L/518, at paras 1, 3; WT/L/676, at paras 1, 3
80. WT/L/518, at para. 1 on exports, at para. 2 on imports.
81. WT/L/518, preamble, recital 4; WT/L/676, preamble, recital 5
82. In order to safeguard WTO members 'interests the waiver provides for consultations between members benefiting from the waiver and a member which considers that a measure covered by the waiver unduly impairs benefits accruing to it under the GATT. If such consultations do not lead to a satisfactory solution such member may bring the matter before the General Council which shall examine it and make recommendations (WT/L/518, at para. 6). Finally, the waiver makes it clear that recourse to consultation and dispute settlement by affected members pursuant to Arts XXII and XXIII GATT shall not be precluded (para. 7).
83. For a detailed analysis of whether international law gives rise to a human right to access to medicines and how the TRIPS Agreement interferes with this right see Hestermeyer, supra note 3, chs 3 and 4 see also Howse and Teitel, 'Beyond the Divide. The Covenant on Economic, Social and Cultural Rights and the World Trade Organization', Friedrich-Ebert-Stiftung Occasional Paper, No. 30/Apr. 2007, at 10.
84. On the debate outside the WTO, in other international institutions such as the WHO, the UN General Assembly, or the Human Rights Commission see Hestermeyer, supra note 3, at 76 ff
85. For the minutes of the special discussion on intellectual property and access to medicines, held during the meeting of the TRIPS Council on 18-22 June 2001 see IP/C/M/31 (10 July 2001)
86. See the communication of Brazil, dated 21 June 2002, on behalf of the delegations of Bolivia, Brazil, Cuba, China, Dominican Republic, Ecuador, India, Indonesia, Pakistan, Peru, Sri Lanka, Thailand, and Venezuela, IP/C/W/355 (24 June 2002)
87. See Statement of the representative of the United States, minutes of the meeting of the TRIPS Council on 5-7 Mar. 2002, IP/C/M/35 (22 Mar. 2002), at para. 84. In the only panel report which to date has interpreted Art. 30, the provision was interpreted narrowly: see Report of the Panel, Canada - Patent Protection of Pharmaceutical Products, 17 Mar. 2002, WT/DS114/R, at paras 7.39 ff.
88. Ministerial Conference, Doha Declaration on the TRIPS Agreement and Public Health, adopted on 14 Nov. 2001, WT/MIN(01)/DEC/2 (20 Nov. 2001).
89. Ibid.,at paras 4, 5.
90. On the process which eventually led to the adoption of the waiver decision see Abbott, supra note 13
91. See the communication of Brazil, supra note 65
92. See minutes of the meeting of the TRIPS Council held 17-19 Sept. 2002, IP/C/M/37 (11 Oct. 2002), e.g. at para. 67 (statement of the representative of the EC), para. 65 (statement of the representative of Norway).
93. Ibid., at para. 63 (statement of the representative of the United States), para. 66 (statement of the representative of Australia), para. 69 (statement of the representative of Canada). The US had initially proposed to address the problem with a moratorium on dispute settlement: see communication of the United States, dated 8 Mar. 2002, IP/C/W/340 (14 Mar. 2002).
94. See minutes of the meeting of the TRIPS Council on 25-27, 29 Nov. 2002 and 20 Dec. 2002, IP/C/M/38 (5 Feb. 2003), at para. 34 (statement by the representative of the United States). On 20 Dec. 2002 the US declared a moratorium on dispute settlement: Communication by the United States to the TRIPS Council, Moratorium to Address Needs of Developing and Least-Developed members with no or Insufficient Manufacturing Capacities in the Pharmaceutical Sector, IP/C/W/396 (14 Jan. 2003).
95. Minutes of the meeting of the TRIPS Council on 28 Aug. 2003, IP/C/M/41 (7 Nov. 2003), at para. 3.
96. Minutes of the meeting of the General Council on 30 Aug. 2003, WT/GC/M/82 (13 Nov. 2003), at para. 31. The waiver decision was accompanied by a statement of the chairman (ibid., at para. 29) which, however, does not form part of the waiver decision.
97. General Council Decision of 30 Aug. 2003, supra note 11, at para. 1(a). The scope of diseases was thus not limited as had been proposed by the US.
98. Ibid., at para. 1(b). A number of developed country members who will not use the system set out in the decision are mentioned in footnote 3 to para. 1(b).
99. Ibid., at para. 2(a)(ii). This requirement does not apply to LDC members.
100. Ibid., at para. 2(a).
101. Ibid., at para. 3; the decision states in para. 3(1) that the exporting member when paying remuneration in accordance with Art. 31(h) shall take into account the economic value to the importing member of the use which was authorized by the exporting member.
102. Ibid., at paras 2, 4, 5.
103. Ibid., at para. 6. In addition the decision imposes certain obligations on all members which cannot be characterized as conditions or terms according to Art. IX(3) WTO Agreement. These are the obligation on all developed members to provide technical and financial cooperation in order to facilitate implementation of the provision on the prevention of re-exportation and the obligation on all members to prevent the importation of diverted products produced under the system set out in the decision (para. 4).
104. Ibid., at para. 11. A second deviation from Art. IX(4) is the stipulation in para. 8 that an annual review by the TRIPS Council fulfils the review requirements of Art. IX(4) which provides for the annual review of waivers by the General Council.
105. General Council, Amendment of the TRIPS Agreement, Decision of 6 Dec. 2005, WT/L/641 (8 Dec. 2005). On the negotiating history see Hestermeyer, supra note 3, at 272-274.
106. General Council Decision of 18 Dec. 2007, WT/L/711 (21 Dec. 2007).
107. On the amendment decision see ICTSD, 'Members Strike Deal on TRIPS and Public Health; Civil Society Unimpressed', 9 Bridges Weekly Trade News Digest, 7 Dec. 2005.
108. On these notifications see Hestermeyer, 'Canadian-made Drugs for Rwanda: The First Application of the WTO Waiver on Patents and Medicines', 11 ASIL Insight s, Issue 28 (10 Dec. 2007).
109. Cf. C.M. Correa, Implications of the Doha Declaration on the TRIPS Agreement and Public Health (2002), at 28-30, available at: www.who.int/medicines/areas/policy/WHO_EDM_PAR_2002.3.pdf.
110. For a positive view on the TRIPS waiver see, e.g., Abbott, supra note 13.
111. For a critical view and demonstration that treaty interpretation is political see Klabbers, 'On Rationalism and Politics: Interpretation of Treaties and the WTO', 74 Nordic J Int'l L (2005) 405
112. Pauwelyn, 'The Role of Public International Law in the WTO. How Far Can We Go?', 95 AJIL (2001) 535.
113. For the prevalence of the KPCS over WTO law see Pauwelyn, supra note 13, at 1193 ff
114. A Typology of Multilateral Treaty Obligations: Are WTO Obligations Bilateral or Collective in Nature
115. Pauwelyn, supra note 91, at 545. On the conceptualization of most WTO norms as bilateral see Pauwelyn, 'A Typology of Multilateral Treaty Obligations: Are WTO Obligations Bilateral or Collective in Nature', 14 EJIL (2003) 907.
116. Pauwelyn, supra note 91, at 545-546
117. Ibid., at 546.
118. Ibid, at 546-547
119. For a discussion of treaty conflict on the premise that treaty conflicts are often a result of value clashes see J. Klabbers, Treaty Conflict and the European Union (2009), at 1-112.
120. Downs and Benvenisti, supra note 4, at 630-631; see also Benvenisti, 'The Conception of International Law as a Legal System', 50 German Yrbk Int'l L (2007) 393
121. See supra notes 6 and 7
122. See suggestions in European Communities, Submission to the Committee on Trade and Environment, dated 22 Mar. 2004, The Relationship between WTO Rules and MEAs in the Context of the Global Governance System, TN/TE/W/39 (24 Mar. 2004). For existing forms of information exchange between UNEP/MEAs and the WTO see Note by the Secretariat to the Committee on Trade and Environment, TN/T/S/2/Rev. 2 (16 Jan. 2007).
123. Hestermeyer, supra note 3, at 288 Graber, supra note 7, at 571 for such suggestions to enhance the sensitivity to environmental concerns within the WTO see O. Perez, Ecological Sensitivity and Global Legal Pluralism: Rethinking the Trade and Environment Conflict (2004), at 96 ff.
124. Generally on venue shifting as a strategy of powerful states see Benvenisti and Downs, supra note 4, at 614-619
125. On the failure of the EC and Canada to introduce a cultural exception doctrine into WTO law see Graber, supra note 7, at 554 ff
126. Cf. R. Hudec, Developing Countries in the GATT Legal System (1987), at 39 ff.
127. Benvenisti and Downs, supra note 4, at 616, n. 60.
128. Supporting the importance of international organizations as 'public realms in which international issues can be debated and, perhaps, decided 'is Klabbers, 'Two Concepts of International Organization', 2 Int'l Orgs L Rev (2005) 277, at 282
129. Cf. Art. 3(2)(1) DSU which states that '[t]he dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading system.
130. Communication of the United States, dated 8 Mar. 2002, IP/C/W/340 (14 Mar. 2002), proposing a moratorium on dispute settlement. For a similar proposal in the Committee on Trade and Environment see Committee on Trade and Environment, Report (1996), WT/CTE/1 (12 Nov. 1996), at para. 178. In the Committee on Trade and Environment it was suggested that disputes between two WTO members which are both parties to the same Multilateral Environmental Agreement and which concern measures mandated by that MEA be submitted to the compliance mechanism provided for in the MEA.
131. A. Aust, Modern Treaty Law and Practice (2nd edn, 2007), at 32.
132. In EC - Chicken Classification the panel argued that Art. 11 DSU prevented it from abdicating its responsibility to the DSB by referring the dispute to the WCO's Harmonized System Committee: see Panel Report, EC - Chicken Classification, WT/DS269, 286/R, at para. 7.56.
133. Cf. Minutes of the meeting of the TRIPS Council held 17-19 Sept. 2002, IP/C/M/37 (11 Oct. 2002), at para. 61 (statement of the representative of Brazil). The same does not hold true in the case of a waiver decision since a waiver suspends WTO obligations, and thus a private claim could not be based on the suspended obligation.
134. Robert Hudec reports that under the GATT 1947 developing countries regularly requested waivers prior to the imposition of tariff surcharges to address balance of payments difficulties. By contrast, when developed countries started to impose tariff surcharges contra legem in the 1960s, they did so without requesting waivers to legalize the surcharges
135. R.E. Hudec, The GATT Legal System and World Trade Diplomacy (1975), at 227.
136. For a theory of argumentation in international relations see Risse, '" Let's Argue!": Communicative Action in World Politics', 54 Int'l Org (2000) 1
137. For the allegation that debates about waivers involve a lot of 'horse trading 'see statement of the representative of the Philippines, TRIPS Council, Minutes of the Meeting on 17-19 Sept. 2002, supra note 71, at para. 79.
138. Among recent literature on the WTO see, e.g., Bonzon, 'Institutionalizing Public Participation in WTO Decision Making: Some Conceptual Hurdles and Avenues', 11 J Int'l Economic L (2008) 751.
139. The view that labour standards do not fall within the objectives of the WTO is expressed in para. 4 of the Singapore Ministerial Declaration, adopted on 13 Dec. 1996 (WT/MIN(96)/DEC (18 Dec. 1996)) which reads in part: '[t]he International Labour Organization (ILO) is the competent body to set and deal with these standards, and we affirm our support for its work in promoting them.
140. For the proposition that interpretations adopted under Art. IX(2) WTO may modify legal rules see Ehlermann and Ehring, 'The Authoritative Interpretation under Article IX:2 of the Agreement Establishing the World Trade Organization', 8 J Int'l Economic L (2005) 803, at 808 ff.
141. Many discussions on waiver requests are currently conducted in informal meetings. An example is the discussion on the request for a waiver to legalize measures implementing the KPCS: see supra note 55.
142. On the role of NGOs in providing non-politicized information to the WTO see Perez, supra note 101, at 100
143. Cf. Howse, 'From Politics to Technocracy and Back Again: The Fate of the Multilateral Trading System', 96 AJIL (2002) 94, at 117.
144. See statement by the Norwegian Representative in the meeting of the TRIPS Council held on 5-7 March 2002, who drew attention to a report on para. 6 written by Professor Frederick Abbott for the Quaker United Nations Office in Geneva and which had been distributed to the delegates, IP/C/M/35 (22 Mar. 2002), at para. 125.
145. See statement of the representative of the WHO in the meeting of the TRIPS Council held on 17-19 Sept. 2002, which endorsed the provision of a limited exception under Art. 30 TRIPS Agreement as the solution most consistent with a basic public health principle, IP/C/M/37 (11 Oct. 2002), at para. 5.
146. See, e.g., statement of the representative of UNAIDS in the meeting of the TRIPS Council, held on 25-27 June 2002, IP/C/M/36 (18 July 2002), at paras 124 ff.
147. Minutes of the meeting of the TRIPS Council held on 25-27, 29 Nov. 2002 and 20 Dec. 2002, supra note 73, at para. 47.
148. Para. 1 of the Understanding in Respect of Waivers of Obligations under the General Agreement on Tariffs and Trade 1994 requires that a waiver request 'describe the measures which the Member proposes to take, the specific policy objectives which the Member seeks to pursue and the reasons which prevent the Member from achieving its objectives by measures consistent with its obligations under GATT 1994'.
149. On the difficulties of weak states in convening negotiations on treaty amendments see Downs and Benvenisti, supra note 4, at 612
150. Consideration of the EC's request for a waiver for trade preferences granted under the Cotonou Agreement was, however, substantially delayed, since members opposing the waiver argued that the request did not meet the procedural requirements: see Statement of the Chairman in the Meeting of the Council for Trade in Goods on 7 July and 16 Oct. 2000, G/C/M/44 (30 Oct. 2000), at 18.
151. See, e.g., General Council, Rules of Procedure for Meetings of the Council for Trade in Goods, adopted on 31 July 1995, WT/L/79 (7 Aug. 1995), Rule 33.
152. See, e.g., Doha Declaration on the TRIPS Agreement and Public Health, supra note 67, at para. 3.
153. See Hestermeyer, supra note 3, at 2 ff
154. Fleck, 'No Deal in Sight on Cheap Drugs for Poor Countries', 81 Bull WHO (2003) 307
155. On the role of the pharmaceutical industry during the Uruguay Round see Sell, 'Industry Strategies for Intellectual Property and Trade. The Quest for TRIPS, and Post-TRIPS Strategies', 10 Cardozo J Int'l & Comp L (2002) 79.
156. For such criticism see Nadakavukaren Schefer, supra note 13, at 447 ff, and Pauwelyn, supra note 13, at 1198 ff
157. Pauwelyn, supra note 13, at 1198 ff
158. With respect to practice under the GATT 1947 see Jackson, supra note 24, at 544
159. WT/L/518, preamble, recital 4; WT/L/676, preamble, recital 5
160. WT/L/518, at para. 1; WT/L/676, preamble, at para. 1.
161. Pauwelyn argues that the trade bans would also be justified under the security exceptions in Art. XXI(b) and (c) GATT
162. see Pauwelyn, supra note 13, at 1184 ff. I find this interpretation doubtful. The trade bans do not appear necessary to protect the security interests of the member imposing the ban which speaks against a justification under Art. XXI(b). Secondly, neither the KPCS nor UN resolutions give rise to a binding obligation to implement such bans which mandates against a justification under Art. XXI(c) GATT. In general, Gray, supra note 52, is sceptical of a justification of the trade bans under GATT exceptions.
163. For an explicit consistency requirement in the WTO Agreements see Art. 5.5 SPS Agreement.
164. For an in-depth discussion of the Appellate Body's most recent interpretation of Art. XX GATT in Brazil - Measures Affecting Imports of Retreaded Tyres (DS322) see the contributions of Bown and Trachtman and of Weiler in 8 World Trade Rev (2009) 85 and 137.
165. On this criticism and with further references see Nadukavukaren Schefer, supra note 13, at 414-416
166. On the role of the diamond industry in the Kimberley Process see Woody, 'Diamonds on the Souls of Her Shoes: The Kimberley Process and the Morality Exception to WTO Restrictions', 22 Connecticut J Int'l L (2007) 335, at 342-344
167. See Chair's Notice, End of Toleration Period in the Kimberley Process, 31 July 2003, available at: www.kimberleyprocess.com/documents/basic_core_documents_en.html.
168. See, arguing for a corresponding principle of horizontal subsidiarity, Howse and Nicolaidis, 'Enhancing WTO Legitimacy: Constitutionalization or Global Subsidiarity?', in M Verweij and T Josling (eds), 'Deliberately Democratizing Multilateral Organization', 16 Governance (special issue) (2003) 73, at 86 ff
169. cf. also Trachtman, 'The Constitutions of the WTO', 17 EJIL (2006) 623, at 634 ff (Trachtman speaks of functional subsidiarity).
170. Cf. S. A. Aaronson and J. M. Zimmermann, Trade Imbalance. The Struggle for Human Rights Concerns in Trade Policy-Making (2007), at 43, citing the Canadian Trade Minister for the view that the adoption of the Kimberley Waiver shows the WTO's flexibility with regard to human security and development.
171. See Pauwelyn, supra note 13, at 1200 ff
172. Where the commercial interests of a member are affected that member may be compensated. Similarly Pascal Lamy in his proposal for an exception in WTO law for collective preferences suggested that such an exception should be coupled with compensation for affected members: see Lamy, 'The Emergence of Collective Preferences in International Trade: Implications for Regulating Globalisation', 15 Sept. 2004, available at: http://trade.ec.europa.eu/doclib/docs/2004/september/tradoc_118929.pdf (last visited 29 May 2009), at 11 ff.
173. Nonetheless, however, domestic legislation may be required so that the rules laid down in a waiver become effective domestically
174. According to Art. X(3) WTO Agreement the amendment will take effect upon acceptance by two thirds of the members for those members only.
175. So far no meaningful reviews of waiver decisions have taken place within the WTO
176. The term was originally coined with regard to European integration of varying degrees for different Member States; on that discussion see, e.g., C.-D. Ehlermann (ed.), Der rechtliche Rahmen eines Europas in mehreren Geschwindigkeiten und unterschiedlichen Gruppierungen. Multi-speed Europe - the Legal Framework of Variable Geometry (1999). For the view that the WTO should allow for variable geometry see Howse and Nicolaidis, supra note 145, at 16.
177. WT/L/540, footnote 3 to para. 1(b).
178. CONTRACTING PARTIES, Tariff Preferences for Less-Developed Countries, Decision of 28 Mar. 1966, BISD 14S/23.
179. Supra note 31