Mutual supportiveness as a principle of interpretation and law-making: A watershed for the 'WTO-and-competing-regimes' debate?

European Journal of International Law

Volumn 21, Issue 3, 2010, Pages 649-679

  Pavoni, Riccardo ^a  

^a UNIVERSITY OF SIENA   (Italy)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 78149365544     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chq046     Document Type: Article

References (142)

1. See 'Lamy Calls for Mindset Change to Align Trade and Human Rights', available at: www.wto.org/english/news_e/sppl_e/sppl146_e.htm.
2. See, for instance, '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), at 141 (para. 277), 143 (para. 281), 207 (para. 412), 210 (para. 417).
3. For the notions of harmonization, presumption against conflicts, and systemic integration see
4. See also Matz-Lück, 'Harmonization, Systemic Integration, and "Mutual Supportiveness" as Conflict-Solution Techniques: Different Modes of Interpretation as a Challenge to Negative Effects of Fragmentation?', 17 Finnish Yrbk Int'l L (2006) 39
5. H. Fox, The Law of State Immunity (2nd edn, 2008), at 155-156.
6. See also Reinisch and Weber, 'In the Shadow of Waite and Kennedy. The Jurisdictional Immunity of International Organizations, the Individual's Right of Access to the Courts and Administrative Tribunals as Alternative Means of Dispute Settlement', 1 Int'l Orgs L Rev (2004) 59, at 85.
7. Immunity versus jus cogens is an intriguing example of a potential application of the principle of MS
8. But I am not here saying that I share Lady Fox's reading of the relevant case law (which in fact I do not), nor that the same case law has indeed achieved a mutually supportive balance between immunities and other areas of the law, such as especially human rights law
9. Agenda 21, at para. 2.3(b), available at: www.un.org/esa/dsd/agenda21/res_agenda21_00.shtml, emphasis added.
10. Decision of 14 Apr. 1994, MTN/TNC/45(MIN), emphasis added.
11. The perspective based on MS is reflected in other parts of the decision, such as when the need to enhance the 'positive interaction between trade and environmental measures' is underscored, as well as that of avoiding 'any policy contradiction' between the multilateral trading system and the protection of the environment
12. WT/CTE/1 (12 Nov. 1996), at para. 167.
13. At the institutional level, the CTE suggested that an important step for 'creating clearer appreciation of the mutually supportive role of trade and environmental policies' should be the serious consideration and consequent approval by WTO bodies of requests for observer status submitted by MEAs bodies.
14. WT/MIN(01)/DEC/W/1 (14 Nov. 2001), at para. 6, emphasis added.
15. As is well-known, IPRs are widely protected in the WTO system under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), Annex 1C to the Agreement Establishing the World Trade Organization (WTO Agreement), Marrakesh, 15 Apr. 2004. All WTO legal instruments cited throughout the article are available at: www.wto.org.
16. See, also for further references, the useful discussion in Nottage and Sebastian, 'Giving Legal Effect to the Results of WTO Trade Negotiations: An Analysis of the Methods of Changing WTO Law', 9 J Int'l Econ L (2006) 989, at 1003-1009
17. See also Bernasconi-Osterwalder, 'Interpreting WTO Law and the Relevance of Multilateral Environmental Agreements in EC-Biotech', Background Note to presentation at the British Institute of International and Comparative Law Seventh Annual WTO Conference (22-23 May 2007), at 5-6, available at: www.ciel.org/Publications/BIICL_ECBiotech_7Jun07.pdf.
18. United States - Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R (12 Oct. 1998).
19. Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, Rotterdam, 10 Sept. 1998, in force 24 Feb. 2004, 38 ILM (1999) 1.
20. For a different reconstruction of the emergence of the principle of MS in MEAs see Boisson de Chazournes and Mbengue, 'A propos du principe du soutien mutuel. Les relations entre le Protocole de Cartagena et les Accords de l'OMC', 111 RGDIP (2007) 829, at 832-835.
21. This different overview is due to discrepancies between the French and English texts of the relevant provisions. For instance, the expression 'trade and environmental policies should be mutually supportive' used by the English text of the PIC Convention becomes 'les politiques commerciales et environnementales devraient être complémentaires' in the French text.
22. Recitals 8-10
23. Montreal, 29 Jan. 2000, in force 11 Sept. 2003, 39 ILM (2000) 1027.
24. The relevant part of the Preamble to the CPB (Recitals 9-11) reads in full: Recognizing that trade and environment agreements should be mutually supportive with a view to achieving sustainable development, Emphasizing that this Protocol shall not be interpreted as implying a change in the rights and obligations of a Party under any existing international agreements, Understanding that the above recital is not intended to subordinate this Protocol to other international agreements...
25. Adopted by the FAO Conference on 3 Nov. 2001, in force 29 June 2004, text available at: www.planttreaty.org/texts_en.htm
26. Recitals 9-11 of the Preamble to the ITPGR read: Recognizing that this Treaty and other international agreements relevant to this Treaty should be mutually supportive with a view to sustainable agriculture and food security; Affirming that nothing in this Treaty shall be interpreted as implying in any way a change in the rights and obligations of the Contracting Parties under other international agreements; Understanding that the above recital is not intended to create a hierarchy between this Treaty and other international agreements...
27. See also Recital 12 of the same Preamble where the Contracting Parties declare that they are '[a]ware that questions regarding the management of plant genetic resources for food and agriculture are at the meeting point between agriculture, the environment and commerce, and convinced that there should be synergy among these sectors'
28. Washington, 3 Mar. 1973, in force 1 July 1975, 993 UNTS 243, Art. XIV(2)(3).
29. Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, particularly in Africa, Paris, 17 June 1994, in force 26 Dec. 1996, 33 ILM (1994) 1328. Art. 8(2) of the Convention provides: 'The provisions of this Convention shall not affect the rights and obligations of any Party deriving from a bilateral, regional or international agreement into which it has entered prior to the entry into force of this Convention for it.'
30. Rio de Janeiro, 5 June 1992, in force 29 Dec. 1993, 31 ILM (1992) 822.
31. J. Pauwelyn, Conflict of Norms in Public International Law. How WTO Law Relates to Other Rules of International Law (2003), at 334.
32. Safrin, 'Treaties in Collision? The Biosafety Protocol and the World Trade Organization Agreements', 96 AJIL (2002) 606, at 618-621
33. Although the thesis at hand finds better support in the preambles to the PIC Convention and ITPGR (which outline the intention of the parties not to 'create a hierarchy' between these treaties and other agreements), it may nevertheless be refuted for the reasons pointed out in the text below
34. Emphasis added
35. See Paolillo, 'Article 30 - Convention de 1969', in O. Corten and P. Klein (eds.), Les Conventions de Vienne sur le droit des traités (2006)
36. See E. Sciso, Gli accordi internazionali confliggenti (1986), at 318-319.
37. Capotorti, 'Il diritto dei trattati secondo la Convenzione di Vienna', in Convenzione di Vienna sul diritto dei trattati (1977), 9, at 34-35
38. Convention on Persistent Organic Pollutants, Stockholm, 22 May 2001, in force 17 May 2004, 40 ILM (2001) 532
39. Recital 9, emphasis added
40. The replacement of the conditional tense 'should' as used in the previously discussed preambular formula with the present tense 'are' bears witness to this conviction. MS should thus not be viewed as a merely aspirational standard.
41. Convention on the Protection and Promotion of the Diversity of Cultural Expressions, Paris, 20 Oct. 2005, in force 18 Mar. 2007, available at: unesdoc.unesco.org/images/0014/001429/142919e.pdf.
42. On which see Ruiz Fabri, 'Jeux dans la fragmentation: la Convention sur la promotion et la protection de la diversité des expressions culturelles', 111 RGDIP (2007) 43, at 63-66, 75-77
43. Wouters and De Meester, 'The UNESCO Convention on Cultural Diversity and WTO Law: A Case Study in Fragmentation of International Law', 42 J World Trade (2008) 205, at 235-238
44. As said in that context, the alleged capability of 'compatibility clauses', such as Art. 20(2) CDC, to resolve norm conflicts is to be rejected.
45. The following statements in the text disavow the argument of the priority of the WTO Agreements over the CDC for additional reasons
46. Hahn, 'A Clash of Cultures? The UNESCO Diversity Convention and International Trade Law', 9 J Int'l Econ L (2006) 515, at 544-546
47. These reservations, respectively made on 18 Sept. 2009 (Australia) and 5 July 2006 (Mexico) upon ratification of the CDC by the two countries, are available at: portal.unesco.org/en/ev.php-URL_ID=31038&URL_DO=DO_TOPIC&URL_SECTION=201.html#RESERVES.
48. Or a superfluous restatement of the principle of good faith and/or the presumption against conflicts
49. Which, despite the wording of the CDC on the point, should work both ways: WTO agreements have also to be taken into account when interpreting and applying the CDC
50. For the time being, however, WTO agreements have exerted a significant influence on the drafting of the CDC. Symbolic in this respect is the need perceived by negotiators to provide a definition of the term 'protection', which according to Art. 4(7) CDC means 'the adoption of measures aimed at the preservation, safeguarding and enhancement of the diversity of cultural expressions' (not 'protectionist' measures in trade jargon).
51. According to Art. 23(6)(e), the Intergovernmental Committee (one of the main organs of the CDC) is entrusted with establishing 'procedures and other mechanisms for consultation aimed at promoting the objectives and principles of th[e] Convention in other international forums'.
52. Beat Graber, 'The New UNESCO Convention on Cultural Diversity: A Counterbalance to the WTO?', 9 J Int'l Econ L (2006) 553, at 567
53. On this shift from a conflict-based vision only tailored to ex post solutions at the time of enforcement towards an ex ante law-making perspective see the telling remarks by Ruiz Fabri
54. This is true also with respect to the CDC, despite the absence of a link between MS and SD in its previously discussed Art. 20.
55. The CDC affords prominent importance to SD for the realization of its primary objective, i.e., the promotion and protection of cultural diversity. SD is indeed one of its guiding principles (Art. 2(6)); see also Arts. 13 and 14.
56. Iron Rhine ("Ijzeren Rijn") Railway (Belgium/Netherlands), Award of the Arbitral Tribunal, 24 May 2005, at para. 59, emphasis added.
57. The text of the Award is available at: www.pca-cpa.org/showpage.asp?pag_id=1155
58. In the passage at hand, the Tribunal built upon Principle 4 of the 1992 Rio Declaration on Environment and Development (31 ILM (1992) 874), according to which '[i]n order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it'
59. Gabčíkovo-Nagymaros Project (Hungary/Slovakia) [1977] ICJ Rep 7, at paras 140-141
60. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 Apr. 2010, at paras 75-76, 177, available at: www.icj-cij.org/docket/files/135/15877.pdf
61. Order on Provisional Measures of 13 July 2006 [2006] ICJ Rep 113, at para. 80.
62. A pivotal role in this respect has also been played by the 1998 US - Shrimp decision of the WTO AB
63. SD Myers, Inc v. Canada, Partial Award, 13 Nov. 2000, 40 ILM (2001) 1408.
64. That is, Ch. 11 of the North American Free Trade Agreement, 17 Dec. 1992, 32 ILM (1993) 289 and 605.
65. North American Agreement on Environmental Cooperation, 14 Sept. 1993, 32 ILM (1993) 1480.
66. The NAAEC is indeed to be regarded as an agreement relating to the NAFTA which was made between the US, Canada, and Mexico in connection with the conclusion of the NAFTA itself (Art. 31(2)(a) VCLT).
67. The Tribunal found that Canada had not fulfilled that requirement. For a recent reassessment of the Tribunal's reasoning and findings see Pavoni, 'Environmental Rights, Sustainable Development, and Investor-State Case Law: A Critical Appraisal', in P.-M. Dupuy, F. Francioni, and E.-U. Petersmann (eds.), Human Rights in International Investment Law and Arbitration (2009), 525, at 530-534, 540-541.
68. These normative solutions, in the form of agreements or other legal instruments, need not necessarily be reached in order for a measure to be justified under Art. XX GATT.
69. In other words, the duty is to negotiate in good faith mutually acceptable solutions, not actually to conclude agreements: AB Report, United States - Import Prohibition of Certain Shrimp and Shrimp Products, Recourse to Article 21.5 of the DSU by Malaysia, WT/DS58/AB/RW (22 Oct. 2001), at paras 123-124.
70. (recalling Railway Traffic between Lithuania and Poland, Advisory Opinion, PCIJ Series A/B No. 42 (1931), at 116).
71. In this sense see, for instance, Sands, 'International Courts and the Application of the Concept of "Sustainable Development"', 3 Max Planck UN Yrbk (1999) 389, at 403
72. European Communities - Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R, WT/DS292/R, WT/DS293/R (29 Sept. 2006).
73. Argentina and Canada have only signed the CPB, while the US has neither signed nor ratified it
74. This is also due to the EC's decision not to appeal against the Biotech Products Report. This decision is unfortunate from our perspective, as it deprives us of the 'authoritative' view of the AB on a systemic issue the clarification of which would greatly benefit the WTO in terms of legal certainty and predictability.
75. It would have been important to understand whether and how, in the aftermath of US - Shrimp, the AB is willing to play the role of 'gatekeeper of the WTO system in relation to MEAs' as thoughtfully suggested by Scott, 'International Trade and Environmental Governance: Relating Rules (and Standards) in the EU and the WTO', 15 EJIL (2004) 307, at 344-351
76. See, for instance, Young, 'The WTO's Use of Relevant Rules of International Law: An Analysis of the Biotech Case', 56 ICLQ (2007) 907, at 919-920 (impossibility to see the use of non-WTO law in US - Shrimp as confined to the application of Art. 31(1) VCLT).
77. Recanati, 'Sul rilievo interpretativo di regole internazionali vincolanti per le parti nel sistema dell'OMC', 90 Rivista di diritto internazionale (2007) 773, at 774 (non-WTO law was used in US - Shrimp also for the interpretation of the chapeau to Art. XX GATT).
78. The Panel, indeed, leaves the issue open whether a different outcome would be justified when non-WTO rules 'are applicable in the relations between all parties to the dispute, but not between all WTO Members, and in which all parties to the dispute argue that a multilateral WTO agreement should be interpreted in the light of these other rules of international law': EC-Biotech Products.
79. Suffice it to think of Annex III to the CPB on 'risk assessment' which might well have been used to shed light onto the corresponding poorly-defined notion in Art. 5 of and Annex A(5) to the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement).
80. The same applies to the Panel's consideration that it was not only imprudent, but also unnecessary to take a position on the status of the precautionary principle in international law, as the principle would have no bearing on the disposition of the claims before it
81. This cannot be true, insofar as one is of the opinion, as I am, that the principle at hand does have a wider scope than reflected in certain WTO rules (contra see Gradoni and Ruiz Fabri, 'Droit de l'OMC et précaution à la lumière de l'affaire des «OGM»', 183 Recueil Dalloz (2007) 1532
82. cf. also Cheyne, 'Gateways to the Precautionary Principle in WTO Law', 19 J Environmental L (2007) 155).
83. Above all, to determine the meaning of terms such as 'pests' and 'additives' in Annex A(1) to the SPS Agreement, and thus whether this Agreement was applicable to the contested measures
84. See also Peel, 'A GMO by Any Other Name... Might Be an SPS Risk!: Implications of Expanding the Scope of the WTO Sanitary and Phytosanitary Measures Agreement', 17 EJIL (2006) 1009.
85. Genetic resources and derivatives thereof are patentable subject matter as long as they result in inventions fulfilling the ordinary requirements of novelty, inventive step, and usefulness as per Art. 27(1) TRIPs. Art. 27(3) allows WTO members to exclude from patentability only plants and animals as such (and essentially biological processes for their production).
86. Art. 15(5) CBD. The debate does not concern human DNA, which falls outwith the scope of the CBD, but only plant and animal genetic resources.
87. Art. 1 CBD. The benefits at stake are those 'arising out of the utilization of genetic resources'.
88. The original proposals by these countries may be read in 'The Relationship between the TRIPS Agreement and the Convention on Biological Diversity and the Protection of Traditional Knowledge', Communication from Brazil, China, Cuba, Dominican Republic, Ecuador, India, Pakistan, Thailand, Venezuela, Zambia, and Zimbabwe to the TRIPs Council, IP/C/W/356 (24 June 2002)
89. Cf. Pavoni, 'Biodiversity and Biotechnology: Consolidation and Strains in the Emerging International Legal Regimes', in F. Francioni and T. Scovazzi (eds), Biotechnology and International Law (2006), 29, at 55-56.
90. This may be read in 'Doha Work Programme - The Outstanding Implementation Issue on the Relationship between the TRIPs Agreement and the Convention on Biological Diversity', Communication from Brazil, India, Pakistan, Peru, Thailand and Tanzania, WT/GC/W/564 (31 May 2006), at 2. Eventually, the list of WTO members co-sponsoring the amendment has dramatically expanded, with the addition of China and Cuba, WT/GC/W/564/Rev.1 (6 June 2006); Colombia, WT/GC/W/564/Rev.2 (5 July 2006); South Africa, WT/GC/W/564/Rev.2/Add.1 (12 July 2006); Ecuador, WT/GC/W/564/Rev.2/Add.2 (28 Nov. 2006); Venezuela, WT/GC/W/564/Rev.2/Add.3 (7 Mar. 2007); Uganda on behalf of the African Group, WT/GC/W/564/Rev.2/Add.4 (22 June 2007); Paraguay, WT/GC/W/564/Rev.2/Add.5 (24 July 2007); Lesotho on behalf of the LDC Group, WT/GC/W/564/Rev.2/Add.6 (16 Nov. 2007); the Dominican Republic, WT/GC/W/564/Rev.2/Add.7 (21 Dec. 2007); Mauritius on behalf of the ACP Group of States, WT/GC/W/564/Rev.2/Add.8 (6 Feb. 2008); and Sri Lanka, WT/GC/W/564/Rev.2/Add.9 (10 July 2008).
91. Art. X(3) WTO Agreement.
92. See for instance the third preambular para. of the CBD. For reasons of space, I am not here revisiting the issue of what 'common concern of humanity' entails in terms of international law sources and relationships among them.
93. It is, however, clear that there exists a close interaction among the notions of common concern, erga omnes obligations (at least, erga omnes partes obligations), and customary rules
94. For insights into the implications of common concern/erga omnes obligations for 'trade and environment' litigation at the WTO see, e.g., Francioni, 'La tutela dell'ambiente e la disciplina del commercio internazionale', in Diritto e organizzazione del commercio internazionale dopo la creazione della Organizzazione Mondiale del Commercio (1998), at 147, 172.
95. As impressive is the rate of ratification of the CBD for that matter
96. As of 4 May 2010, there are 193 parties to the CBD, making it a nearly universal treaty (the US continues to be the only notable absence from CBD parties)
97. The latest report of the WTO Director General on his consultations with the delegations involved in the CBD-TRIPs negotiations, dated 12 Mar. 2010, is available at: www.wto.org/english/news_e/news10_e/trip_12mar10_e.htm
98. His final conclusion on the state of play of the negotiations reads, 'In sum, there is general agreement on the public policy objectives, including ensuring equitable benefit sharing, but differences clearly remain on how to arrive at those goals in practice.'
99. Revised Draft Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization to the Convention on Biological Diversity, adopted at the 9th Meeting of the Ad-Hoc Open-Ended Working Group on Access and Benefit-Sharing, 22-28 Mar. 2010, Cali, Colombia, Annex I to the Report of the First Part of the Ninth Meeting of the Ad Hoc Open-Ended Working Group on Access and Benefit-Sharing, UNEP/CBD/WG-ABS/9/3 (26 Apr. 2010), available at: www.cbd.int/doc/meetings/abs/abswg-09/official/abswg-09-03-en.pdf
100. The Draft Protocol is scheduled for adoption at the Nagoya Biodiversity Summit/Tenth Conference of the Parties to the CBD, to be held on 18-29 Oct. 2010.
101. See 'The Draft Nagoya Protocol on Access and Benefit Sharing is Born in Cali', available at: www.cbd.int/doc/press/2010/pr-2010-03-28-abs9-en.pdf.
102. Art. 13 of the Draft Protocol.
103. Arts. 4 and 12 of, and Annex I to, the Draft Protocol.
104. For a useful overview of such developments at the WIPO, as well as in other forums, see Medaglia, 'Study on the Relationship between the ABS International Regime and Other International Instruments which Govern the Use of Genetic Resources: The World Trade Organization (WTO); the World Intellectual Property Rights [sic] Organization (WIPO); and the International Union for the Protection of New Varieties of Plants (UPOV)', UNEP/CBD/WG-ABS/7/INF/3/Part.2 (3 Mar. 2009), available at: www.cbd.int/doc/meetings/abs/abswg-09/information/abswg-09-abswg-07-inf-03-part2-en.pdf.
105. Recital 8 of the Preamble to the TRIPs Agreement
106. WT/L/641 (8 Dec. 2005).
107. At the moment of writing, the amendment is not yet in force. Being an amendment which alters WTO rights and obligations, its entry into force requires ratification by at least two thirds of WTO members as per Art. X(3) WTO Agreement. As of 4 May 2010, 29 members had accepted the amendment, including the EU.
108. Art. 31(f) allows only compulsory licences intended 'predominantly for the supply of the domestic market' of the member granting the licence.
109. In specific situations, the 2005 Amendment also adjusts and modifies the obligation to pay 'adequate remuneration' to the patent holder in case of compulsory licences
110. General Council Decision of 30 Aug. 2003, Implementation of Para. 6 of the Doha Declaration on the TRIPs Agreement and Public Health, WT/L/540 (2 Sept. 2003).
111. On the negotiating process and for detailed analysis see Abbott, 'The WTO Medicines Decision: World Pharmaceutical Trade and the Protection of Public Health', 99 AJIL (2005) 317
112. Abbott and Reichman, 'The Doha Round's Public Health Legacy: Strategies for the Production and Diffusion of Patented Medicines under the Amended TRIPs Provisions', 10 J Int'l Econ L (2007) 921
113. Sun, 'The Road to Doha and Beyond: Some Reflections on the TRIPS Agreement and Public Health', 15 EJIL (2004) 123
114. This finds support in the official practice based on the waiver system, as there exists so far only one case whereby two WTO members have notified the Council for TRIPs of their use of the system, i.e., for the export from Canada of certain patented HIV-treatment drug to Rwanda: see Notification under Para. 2(A) of the Decision of 30 Aug. 2003 on the Implementation of Para. 6 of the Doha Declaration on the TRIPs Agreement and Public Health (Rwanda), IP/N/9/RWA/1 (19 July 2007), and Notification under Para. 2(C) of the Decision of 30 Aug. 2003 on the Implementation of Para. 6 of the Doha Declaration on the TRIPs Agreement and Public Health (Canada), IP/N/10/CAN/1 (8 Oct. 2007).
115. For a comment see Hestermeyer, 'Canadian-made Drugs for Rwanda: The First Application of the WTO Waiver on Patents and Medicines', 11 ASIL Insights (10 Dec. 2007), available at: www.asil.org/insights071210.cfm.
116. The Doha Declaration on the TRIPs Agreement and Public Health is rightly viewed as a declaration interpreting WTO law, even though, unlike authoritative interpretations under Art. IX(2) WTO Agreement, it is non-binding.
117. In this sense, see also for references to the diverse views expressed on the nature of authoritative interpretations, Gazzini, 'Can Authoritative Interpretation under Art. IX:2 of the Agreement Establishing the WTO Modify the Rights and Obligations of Members?', 57 ICLQ (2008) 169. Art. IX(2) WTO Agreement provides that authoritative interpretations 'shall not be used in a manner that would undermine the amendment provisions in Article X'.
118. See Feichtner, 'The Waiver Power of the WTO: Opening the WTO for Political Debate on the Reconciliation of Competing Interests', 20 EJIL (2009) 615
119. The author's argument focuses on the 2003 TRIPs Waiver and the so-called 'Kimberley Waiver on conflict diamonds', i.e., General Council Decision of 15 May 2003, Waiver Concerning Kimberley Process Certification Scheme for Rough Diamonds, WT/L/518 (27 May 2003), as subsequently extended.
120. On the nature and limits of waivers see recently Harrison, 'Legal and Political Oversight of WTO Waivers', 11 J Int'l Econ L (2008) 411
121. (underscoring however the ability of the essential-medicines TRIPs solution, i.e., waiver plus amendment, to overcome significant shortcomings of amendments).
122. Geneva, 21 May 2003, in force 27 Feb. 2005, available at: www.who.int/fctc/text_download/en/index.html
123. As of 4 May 2010, there were 168 parties to the Convention, including the EU. Notably, the US has so far withheld its ratification.
124. The Preamble to the FCTC declares that such consequences are a 'concern of the international community' (Recital 2)
125. Cf. especially Arts 6-16 FCTC.
126. Cf. Art. 2(3) of the New Chair's Text of a Framework Convention on Tobacco Control, A/FCTC/INB5/2 (25 June 2002), available at: apps.who.int/gb/fctc/PDF/inb5/einb52.pdf.
127. See also Art. 5(5) which interestingly reads, 'While recognizing that tobacco control and trade measures can be implemented in a mutually supportive manner, Parties agree that tobacco control measures shall be transparent, implemented in accordance with their existing international obligations, and shall not constitute a means of arbitrary or unjustifiable discrimination in international trade.'
128. This is one of the provisions which has disappeared from the adopted Convention
129. Art. 2(1) encourages the parties to adopt stricter measures than those provided for by the Convention and states that these are to be consistent with the Convention itself and 'in accordance with international law'. Conversely, Art. 2(2) grants priority to the Convention over future bilateral and multilateral agreements concluded by the parties on 'issues relevant or additional to the Convention and its protocols'.
130. Howse, 'Adjudicative Legitimacy and Treaty Interpretation in International Trade Law: The Early Years of WTO Jurisprudence', in J.H.H. Weiler (ed.), The EU, the WTO, and the NAFTA (2000), 35, at 63.
131. Thailand - Restrictions on Importation of and Internal Taxes on Cigarettes, DS10/R-37S/200 (5 Oct. 1990), especially at paras 72-81.
132. On the last inconclusive Report, directing the disputing parties to enter into further consultations (!) with respect to the conformity of EU implementing measures with prior rulings, see Böckenförde, 'Hormone Ban in Dispute Again: The WTO Refuses to Reject Either the EC Ban or Canadian/US Trade Sanctions', 12 ASIL Insights (18 Dec. 2008), available at: www.asil.org/insights081218.cfm.
133. See most recently European Communities - Measures Concerning Meat and Meat Products (Hormones), Recourse to Article 21.5 of the DSU by the European Communities, WT/DS48/21 (8 Jan. 2009).
134. Case C-93/02 P, Biret International v. Council [2003] ECR I-10497; and Case C-94/02 P, Établissement Biret et CIE v. Council [2003] ECR I-10565.
135. App No 13762/04, Établissements Biret et CIE S.A. and Biret International v. 15 États membres de l'Union européenne, Admissibility Decision of 9 Dec. 2008, available at: cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (in French).
136. Dir. 2003/74/EC of the European Parliament and of the Council of 22 Sept. 2003 amending Council Dir. 96/22/EC concerning the prohibition on the use in stockfarming of certain substances having a hormonal or thyrostatic action and of beta-agonists, OJ (2003) L 262/1.
137. See 'EU and US Reach Provisional Agreement in Beef Dispute', IP/09/707 (6 May 2009), available at: europa.eu/rapid/pressReleasesAction.do?reference=IP/09/707&format=HTML&aged=o&language=EN&guiLanguage=en.
138. 'EU, US Strike Provisional Deal to End Beef Dispute', 9 Bridges Trade BioRes (15 May 2009), available at: ictsd.org/i/news/biores/46670.
139. See, e.g., Arts 3(6)(7), 4(3), and 11 DSU.
140. Art. 22(2) and (8) DSU.
141. Tancredi, 'EC Practice in the WTO: How Wide is the "Scope for Manoeuvre"?', 15 EJIL (2004) 933, especially at 955-959
142. Sir Leon Brittan's keynote address to the WTO High Level Symposium on Trade and the Environment, Geneva, Mar. 1999, emphasis added, reproduced, and commented on with approval in A.F. Lowenfeld, International Economic Law (2nd edn, 2008), at 413-416.