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Treaties in Collision? The Biosafety Protocol and the World Trade Organization Agreements

Published online by Cambridge University Press:  27 February 2017

Sabrina Safrin
Sabrina Safrin*
Affiliation:
Rutgers University Law School, Newark
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American Journal of International Law , Volume 96 , Issue 3 , July 2002 , pp. 606 - 628
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Copyright © American Society of International Law 2002

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References

1 Cartagena Protocol on Biosafety to the Convention on Biological Diversity, Jan. 29, 2000, 39 ILM 1027 (2000), available at <http://www.biodiv.org> [hereinafter Protocol].

2 Paarlberg, Robert, The Global Food Fights, Foreign Aff., May/June 2000, at 24, 25 CrossRefGoogle Scholar.

3 Id.

4 Id.; Kormos, Cyril & Hughes, Layla, Regulating Genetically Modified Organisms 7 (Conservation International, 2000)Google Scholar.

5 Paarlberg, supra note 2, at 25.

6 Id. at 24; KORMOS & HUGHES, supra note 4, at 7.

7 Paarlberg, supra note 2, at 27; KORMOS & HUGHES, supra note 4, at 8; John, Stephen Fredland, Note, Unlabel Their Frankenstein Foods!: Evaluating a U.S. Challenge to the European Commission’s Labeling Requirements for Food Products Containing Genetically-Modified Organisms, 33 Vand.J. Int’l L. 183,187 (2000)Google Scholar (noting objections by the Prince of Wales that genetic modification “takes man into realms that belong to God, and God alone”).

8 KORMOS & HUGHES, supra note 4, at 8.

9 Id. at 7-8.

10 Id.; David, G. Victor & Ford, Runge C. ,Farming the Genetic Frontier, Foreign Aff., May/June 2002, at 107, 110 Google Scholar.

11 Protocol, supra note 1, Art. 1.

12 The General Agreement on Tariffs and Trade (GATT), Oct. 30, 1947, TIAS No. 1700, 55 UNTS 194, was amended extensively in 1994 as part of the Uruguay Round. The Uruguay Round produced a “new GATT 1994,” which supersedes the “old GATT.” John, H. Jackson, Jurisprudence of GATT and The WTO 401 (2000)Google Scholar. For GATT 1994, see Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994 [hereinafter WTO Agreement], ANNEX 1 A, in World Trade Organization, The Legal Texts: The Results of The Uruguay Round of Multilateral Trade Negotiations 17 (1999) [hereinafter The Legal Texts] , 33 ILM 1154 (1994).

13 The Agreement on the Application of Sanitary and Phytosanitary Measures, WTO Agreement, Annex 1 A, THE LEGAL TEXTS, supra note 12, at 59 [hereinafter SPS Agreement], regulates sanitary measures taken by member states to protect human and animal health and phytosanitary measures taken to protect plant life or health. The Agreement on Technical Barriers to Trade, WTO Agreement, Annex 1A, THE LEGAL TEXTS, supra, at 121 [hereinafter TBT Agreement], applies to technical barriers to trade, such as packaging, marking, and labeling requirements, that are not promulgated for sanitary or phytosanitary purposes.

14 Negotiations on the Protocol were scheduled to conclude in February of 1999 in Cartagena, Colombia. These negotiations collapsed owing to irreconcilable differences between nations, including differences on whether the Protocol would include a savings clause. The Protocol was ultimately concluded and adopted nearly a year later in Montreal, Canada.

15 Article 3 (g) of the Protocol, supra note 1, defines “living modified organism” as “any living organism that possesses a novel combination of genetic material obtained through the use of modern biotechnology.” Article 3(i) defines “modern biotechnology” and specifically provides that it does not include “techniques used in traditional breeding and selection.”

16 Pursuant to Article 4 of the Protocol, id., the scope of the Protocol extends solely to “living modified organisms.” Under Article 3 (h), for an organism to be living it must be a “biological entity capable of transferring or replicating genetic material.” Because products of living modified organisms such as oil and paper goods are inanimate, they fall outside the scope of the Protocol.

17 Id., Art. 5.

18 Party of import refers to a country that is a party to the Protocol and into whose territory the living modified organism is intended for release. Id., Art. 3(e).

19 Id., Arts. 7, 8.

20 Id., Art. 10.

21 Id., Art. 7(1), (2).

22 Id., Art. 6.

23 Id., Arts. 10(1), 15.

24 Id., Art. 11(1) .

25 Id, Art. 11(6).

26 Id.

27 Id., Arts. 10(6) & (in slightly modified form) 11 (8). The Protocol also refers to precaution in its preamble and in Article 1. Clause 4 of the preamble states: “Reaffirming the precautionary approach contained in Principle 15 of the Rio Declaration on Environment and Development” (emphasis omitted). Article 1 on objective, quoted in text at note 11 supra, begins by referring to the precautionary approach of Rio Principle 15, stating that the objective is “[i]n accordance with the precautionary approach contained in Principle 15 of the Rio Declaration on Environment and Development.” For the Rio Declaration on Environment and Development. June 14, 1992, see 31 ILM 874 (1992).

28 Protocol, supra note 1, Art. 18(2)(c).

29 Id., Art. 18(2) (a).

30 Id.

31 Id., Art. 18(2) (b).

32 The Protocol begins with the qualifier “The Parties to this Protocol, Being Parties to the Convention on Biological Diversity.” Id., pmbl., cl. 1. Article 32 of the Convention on Biological Diversity, June 5, 1992, 31 ILM 818 (1992), provides that only nations that are parties to the Convention may become parties to its protocols.

33 Protocol, supra note 1, Art. 24(1).

34 Id.

35 Id., Art. 24(2).

36 David, G. Victor, The Sanitary and Phytosanitary Agreement of the World Trade Organization: An Assessment After Five Years, 32 NYU J. Int’l L. & Pol. 865, 873 (2000)Google Scholar.

37 Id. Article I of the GATT requires “most-favored-nation treatment” between GATT members, which precludes discrimination according to the country of origin. Article III of the GATT requires “national treatment,” which prevents members from treating imported products less favorably than domestic products. In addition, the chapeau of GATT Article XX provides that parties may not apply measures, including those necessary to protect human, animal, or plant life or health or relating to the conservation of exhaustible natural resources, in a manner that arbitrarily or unjustifiably discriminates “between countries where the same conditions prevail” or that would constitute “a disguised restriction on international trade.”

38 SPS Agreement, Art. 1 & Annex A( 1).

39 See Kevin, C. Kennedy, Resolving International Sanitary and Phytosanitary Disputes in the WTO: Lessons and Future Directions, 55 Food & Drug L.J. 81, 83–85 (2000)Google Scholar; Sean, D. Murphy, Biotechnology and International Law, 42 Harv. Int’l L.J. 48, 79 (2001)Google Scholar.

40 SPS Agreement, Art. 2(2).

41 Id.

42 Id., Art. 5.7.

43 Id.

44 Id., Art. 2(3); Victor, supra note 36, at 875.

45 TBT Agreement, Art. 1.5 & pmbl., cl. 5; Murphy, supra note 39, at 79 n.134. By their own terms, the TBT and SPS Agreements are mutually exclusive. A measure encompassed by the SPS Agreement is not covered by the TBT Agreement. TBT Agreement, Art. 1.5; SPS Agreement, Art. 1.4.

46 Murphy, supra note 39, at 83 n.157.

47 TBT Agreement, Art. 2.2.

48 Id.

49 Charnovitz, Steve, The Supervision of Health and Biosafety Regulation by World Trade Rules, 13 Tul. Envtl. L.J. 271,300 (2000)Google Scholar (stating that the Biosafety Protocol appears compatible with the SPS Agreement); Gretchen, L. Gaston & Randall, S. Abate, The Biosafety Protocol and the World Trade Organization: Can the Two Coexist? 12 Pace Int’l L. Rev. 107,109 (2000)Google Scholar (concluding that trade measures contained in the Biosafety Protocol are compatible with WTO principles).

50 The atmosphere contributing to these concerns is discussed in part III infra. ‘‘‘ See supra text at note 40.

51 See generally Paarlberg, supra note 2, at 27 (European Union bans on genetically modified crops promulgated without scientific evidence of harm); Victor & Runge, supra note 10, at 113 (stating that” [t] he scientific evidence strongly suggests that [bioengineered] crops are safe—sometimes even safer than conventional ones”).

53 Murphy, supra note 39, at 80-81; Paarlberg, supra note 2, at 27-28.

54 Murphy, supra note 39, at 81. The European Union’s ban has engendered a loss of approximately two hundred million dollars a year in U.S. corn exports. Paarlberg, supra note 2, at 28.

55 Murphy, supra note 39, at 80. The European Union also required mandatory labeling of genetically modified products. For a discussion of the EU labeling requirements and concern that such requirements might violate WTO disciplines, see Fredland, supra note 7.

56 See discussion of the Beef Hormone case in text at notes 88-92 infra. See also Kennedy, supra note 39, at 92, 94, 96 (discussing lack of scientific support that the use of growth hormones presented risks to human health and the presence of much evidence to the contrary).

57 Appellate Body Report, Japan—Measures Affecting Agricultural Products, WT/DS76/AB/R, paras. 10, 81 (Feb. 22, 1999) (adopted Mar. 19,1999) [hereinafter Japan—Varietal case]. For a summary of this case, see Kennedy, supra note 39, at 98-99; Victor, supra note 36, at 911-13.

58 Japan—Varietal case, supra note 57, para. 81; see also Beef Hormone case, infra note 90.

59 Japan—Varietal case, supra note 57, para. 81.

60 Protocol, supranote 1, Arts. 10(6), 11(8).

61 In the Japan—Varietal case, supra note 57, Panel Report, WT/DS76/R, para. 8.56 (Oct. 27, 1998), the WTO panel found that Japan’s varietal testing requirement could not be defended under Article 5.7 of the SPS Agreement because Japan had not sought to obtain the additional information necessary for a more objective risk assessment and had not reviewed its testing requirement within a reasonable period of time as required by Article 5.7. Victor, supra note 36, at 911-12.

62 See text supra at notes 37, 44, 47 and infra at notes 82, 83.

63 See text supra at notes 37, 44, 47 and infra at notes 82, 83.

64 See infra note 83 and corresponding text.

65 See infra note 83 and corresponding text.

66 Article 30, paragraph 3 of the Vienna Convention on the Law of Treaties, opened for signature May 23, 1966, 1155 UNTS 336 [hereinafter Vienna Convention], states: “When all the 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.”

67 Id., Art. 30, para. 4.

68 Id. Article 30, paragraph 4 of the Vienna Convention is particularly important in the case of the Biosafety Protocol. The United States, which is a party to the WTO Agreements, cannot become a party to the Biosafety Protocol unless it becomes a party to its parent convention, the Convention on Biological Diversity. See supra note 32 and corresponding text. Until such time as the United States joins the Biosafety Protocol, treaty relations between the United States and any other nation are governed by those treaties to which both the United States and that nation are party, such as the WTO Agreements, regardless of any savings clause. Cf. Wirth, David, Trade Implications of the Basel Convention Amendment Banning North-South Trade in Hazardous Wastes, 7 Reciel 237, 241 (1998)Google Scholar (“As between two states, both of which are parties to the GATT/WTO regime and only one of which is a Party to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, GATT/WTO obligations remain intact.”)

69 Article 30, paragraph 2 of the Vienna Convention, supra note 66, states: “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.”

70 See generally Pauwelyn, Joost, The Role of Public International Law in the WTO: How Far Can We Go ? 95 AJIL 535, 536–38 (2001)Google Scholar (explaining that there exists no “inherent hierarchy” in international law so that treaties are in principle of equal value).

71 E.g., International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171; Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 UST 3227, 500 UNTS 95; Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, Mar. 18, 1965, 17 UST 1270, 575 UNTS 159; Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 UST 6223, 606 UNTS 267; Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, Aug. 5, 1963, 14 UST 1313, 480 UNTS 43; Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 UST 2410, 610 UNTS 205; Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, Apr. 10, 1972, 26 UST 583, 1015 UNTS 163 [hereinafter Biological Weapons Convention]; Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3,1973, 27 UST 1087, 993 UNTS 243 [hereinafter CITES].

72 See Sinclair, Ian, The Vienna Convention on the Law of Treaties 97 (2d. ed. 1984)Google Scholar (stressing that the rules in Article 30 of the Vienna Convention are residual only).

73 See Arnold, Duncan Mcnair, The Law of Treaties 219 (1961)Google Scholar, who states:

Where the parties to the two treaties said to be in conflict are the same, an allegation of conflict raises a question of interpretation rather than a question of a rule of law; the parties are masters of the situation and they are free to modify one treaty by a later one.

See also Pauwelyn, supra note 70, at 545.

74 See text supra at note 70.

75 The Miami Group included Argentina, Australia, Canada, Chile, the United States, and Uruguay.

76 See Outstanding Issues and Necessary Revisions to the Text of the Draft Protocol: Submission by the Miami Group, UNEP/CBD/ExCop/l/3,AnnexIII,at 17,para. 7(a) (Feb. 20, 2000), available at<http://www.biodiv.org/doc/meetings>.

77 See supra note 66.

78 See Package Proposal on the Text of the Draft Protocol: Submission by the European Union, UNEP/CBD/ ExCop/1/3, supra note 76, Annex II, at 15, 16, para. 3.

79 Convention on Biological Diversity, supra note 32, Art. 22.

80 Report of the Sixth Meeting of the Open-ended Ad Hoc Working Group on Biosafety, UNEP/CBD/ExCop/1/2, at 35, Art. 31 (Feb. 15, 1999), available at <http://www.biodiv.org/doc/meetings>.

81 The “Like-Minded Group,” which was the negotiating group representing most of the developing countries, accepted the chairman’s text on the savings clause issue. See Proposal on the Text of the Draft Protocol: Submission by the Like-Minded Group of Countries, UNEP/CBD/ExCop/1/3, supra note 76, Annex IV, at 19.

82 Such discrimination could implicate several WTO provisions. As indicated above, Article 2.3 of the SPS Agreement prohibits measures that “arbitrarily or unjustifiably discriminate” between countries “where identical or similar conditions prevail.” Article 5.5 of that Agreement provides that governments “shall avoid arbitrary or unjustifiable distinctions” in the levels of protection they consider to be appropriate in different situations, “if such distinctions result in discrimination or a disguised restriction on international trade.” Article 2.1 of the TBT Agreement also prohibits discrimination between imports or between imports and domestic like products. For comparable provisions of the GATT, Article III and the chapeau of Article XX, see note 37 supra.

83 WTO obligations potentially implicated by such action include Article I of the GATT, supra note 37 (most-favored-nation treatment); and SPS Agreement, Arts. 2.3, 5.5; TBT Agreement, Art. 2.1; and GATT, chapeau of Art. XX (also prohibiting discrimination).

84 See SPS Agreement, Art. 2.2, quoted in text at note 40 supra; TBT Agreement, Art. 2.2, quoted in text at note 48 supra.

85 Numerous articles have discussed how consumer fears and trade protectionist forces have generated opposition to genetically modified organisms, particularly in Europe. See Marsha, A. Echols, Food Safety Regulation in the European Union and the United States: Different Cultures, Different Laws, 4 Colum. J. Eur. L. 525 (1998)Google Scholar (concluding that different cultures in the European Union and the United States explain why the EU is more restrictive on meat produced using growth hormones and other novel foods but has less stringent food safety rules on traditional foods); Fredland, supra note 7 (discussing widespread European public disfavor with genetically modified organisms or “Frankenstein Foods”); Paarlberg, supra note 2, at 26-28; Runge, C. Ford & Senauer, Benjamin, A Removable Feast, Foreign Aff., May/June 2000, at 39, 46 Google Scholar; Weiss, Rick, In Europe, Cuisine du Gene Gets a Vehement Thumbs Down, Wash. Post, Apr. 24, 1999, at Al Google Scholar.

86 See, e.g., Zhangliang, Chen, Unlimited Prospects for Biotechnology, Knowledge Econ. [Zhishi Jingji], Dec. 1999, at 22–28 Google Scholar, summary translated in U.S. Embassy Beijing, PRC Biotech: Top Researcher Sees Great Prospects (Jan. 2000), at <http://www.usembassy-china.org.cn/english/sandt/biotech.html> (the author, vice chancellor of Beijing University and one of China’s most prominent biotechnology researchers and policy advisers, expresses unbounded optimism for the future of Chinese biotechnology, noting, among other things, how potential bans on genetically modified organisms for religious reasons and the European Union’s four-year halt on such organisms has “serious effects on U.S. exports” and “gives China a good opportunity [to] take advantage of this . . . halt to turn China into a world power in genetically modified organisms”).

87 The European Communities has since become the European Union.

88 Panel Report, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/R/USA, WT/DS48/ R/CAN; paras. 9.1, 9.2 (Aug. 18, 1997) (adopted Feb. 13, 1998) [hereinafter Beef Hormone].

89 Appellate Body Report, Beef Hormone, supra note 88, WT/DS26/AB/R, WT/DS48/AB/R, paras. 113, 114, 158(1) (Jan. 16,1998).

90 Id. at 45-48, paras. 25-30, & 101, para. 158(c).

91 As explained by the WTO Appellate Body in the Beef Hormone case, id., para. 29, the SPS Agreement encompasses precaution in at least three places. The first is Article 5.7 of that Agreement, see supra note 42 and corresponding text. The second and third are Article 3.3 and the sixth clause of the preamble to the SPS Agreement, which provide that parties may set their own level of sanitary and phytosanitary protection.

92 See generally Victor, supra note 36, at 899-900 (noting that in the Beef Hormone case, the European Communities argued that, although objective studies on beef hormones showed that such hormones presented no credible risks to humans, highly publicized incidents had made European consumers wary of beef and a ban on beef was necessary to restore confidence in the market).

93 In 1996 the European Union banned imports of beef from the United Kingdom because of the relationship between beef tainted with bovine spongiform encephalopathy (“mad cow disease”) and a variant of the fatal Creutzfeldt-Jakob disease in human beings. The Union lifted the ban in 1999, but the experience created a crisis of consumer confidence in the safety of foods and the ability of European regulators to anticipate threats to human health. Murphy, supra note 39, at 79 n.135; see also Victor, supra note 36, at 899-900.

94 See supra note 14.

95 The International Plant Protection Convention (IPPC) controls pests of plants and plant products and aims at preventing their spread, especially across international borders. The IPPC of November 28, 1979, is currently in force. A revised IPPC, adopted in November of 1997, is not yet in force. An LMO that could be considered a plant pest would fall within the IPPC and its requirements, inter alia, that plant protection measures must be “necessary by phytosanitary considerations” and, under the 1997 revised IPPC, be based on a pest risk analysis. Both versions can be found online at <http://www.fao.Org/ag/guides/subject/d.htm> (visited July 11, 2002).

96 An LMO that is a toxin could fall under the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, Jan. 13, 1993, 32 ILM 800 (1993) [hereinafter Chemical Weapons Convention], and its restrictions on the international transfer of chemicals that could be converted into chemical weapons. The Convention is available online at <http://www.opcw.org>.

97 An LMO that is a biological weapon would be subject to the strict prohibitions of the Biological Weapons Convention, supra note 71.

98 Decision II/5 of the Second Meeting of the Conference of the Parties to the Convention on Biological Diversity, UNEP/CBD/COP/2/19, Annex, para. 5(b) (Nov. 30, 1995), available at <http://www.biodiv.org>.

99 Article 2, paragraph 3 of the Biosafety Protocol states:

Nothing in this Protocol shall affect in any way the sovereignty of States over their territorial sea established in accordance with international law, and the sovereign rights and the jurisdiction which States have in their exclusive economic zones and their continental shelves in accordance with international law, and the exercise by ships and aircraft of all States of navigational rights and freedoms as provided for in international law and as reflected in relevant international instruments.

For the United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, see 1833 UNTS 397.

100 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Mar. 22, 1989, Art. 4, para. 12, 28 ILM 657 (1989), available at <http://www.unep.ch/basel>.

101 Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, Sept. 11,1998.38 ILM 1 (1999), available at <http://www.fao.org/ag/agp/agpp/pesticid/pic>.

102 Id., pmbl., cl. 9 (emphasis omitted).

103 Id., cl. 8.

104 Id., cl. 10.

105 Biosafety Protocol, supra note 1, pmbl., cl. 10 (emphasis omitted).

106 Id., cl. 9 (emphasis omitted).

107 Id., cl. 11 (emphasis omitted).

108 KORMOS & HUGHES, supra note 4, at 40 (preamble language unclear); Hagen, Paul & John, Barlow Weiner, The Cartagena Protocol on Biosafety: New Rules for International Trade in Living Modified Organisms, 12 Geo. Int’l Envtl. L. Rev. 697,707–08 (2000)Google Scholar (positing that the Protocol leaves unclear the relationship between its standards and any differing standards in trade agreements); Murphy, supra note 39, at 78 (reaching same conclusion).

109 See sources cited supra note 108.

110 This argument is addressed in greater depth in text infract notes 117-25. For a European perspective on the savings clause issue, see Afonso, Margarida, The Relationship with Other International Agreements: An EU Perspective, in The Cartagena Protocol on Biosafety 423 (Bail, Christoph, Falkner, Robert, & Marquard, Helen eds., 2002)Google Scholar.

111 See, e.g., Kennedy, supra note 39, at 104.

112 Vienna Convention, supra note 66, Art. 30, para. 2, quoted in note 69 supra.

113 Article 31, paragraph 2 of the Vienna Convention, id., provides: “The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes . . . .”

114 See discussion in part II supra. György Haraszti nicely summarizes the purpose of a savings clause as follows:

By [the inclusion of a savings clause] the parties want to give a clear-cut expression to their opinion that they do not consider the new treaty irreconcilable to the provisions of earlier treaties, and that their intention has not been to abrogate earlier treaties. In this respect the provision . . . forestalls any disputes that might arise in connexion with the interpretation of the intention of the parties.

György, Haraszti, Some Fundamental. Problems of the Law of Treaties 296 (1973)Google Scholar.

115 See supra note 113. See generally SINCLAIR, supra note 72, at 127-28, who quotes Fitzmaurice, Gerald, The Law and Procedure of the International Court of Justice, 1951-4: Treaty Interpretation and Other Treaty Points, 1957 Brit. Y.B. Int’l L. 203, 228 Google Scholar, as follows:

Although the objects of a treaty may be gathered from its operative clauses taken as a whole, the preamble is . . . the natural place in which to look for, an express or explicit general statement of the treaty’s objects and purposes. Where these are stated in the preamble, the latter will, to that extent, govern the whole treaty.

116 See supra note 106 and corresponding text.

117 See supra note 107 and corresponding text.

118 The principal definition of the verb “subordinate” is “[t]o put in a lower rank or class.” Webster’s II New Riverside Dictionary 685 (1984). Synonyms for the noun “subordinate” are “inferior, junior, subaltern and underling.” Id. The adjective form of “subordinate” is defined as “[o]f lower rank or class: inferior.” Id. Synonyms for this form include “inferior, junior, smaller, lower, insignificant, paltry, unequal to, not comparable to, lower, and minor.” Webster’s New World Thesaurus 435 (Charlton Laird ed., 1974).

119 See supra note 66.

120 Id.

121 Vienna Convention, supra note 66, Art. 31, para. 1.

122 Under general rules of treaty interpretation, a treaty must be construed to give meaning and effect to all its terms. This rule is referred to as the principle of effective interpretation (l’effet utile or ut res magis valeat quam pereat). Pursuant to this rule, a treaty provision should not be interpreted so as to nullify the effect of another provision of that treaty. Gabríelle, Marceau, A Call for Coherence in International Law, J. World Trade, No. 5,1999, at 87,127 Google Scholar n.132 (citing, inter alia, [1966] 2Y.B. Int’l L. Comm’n 219, UN Doc. A/CN.4/SER.A/1966/Add.l; Corfu Channel case (UK v. Alb.), Merits, 1949 ICJ Rep. 4, 24 (Apr. 9); Territorial Dispute (Libya v. Chad), 1994 ICJ Rep. 6, 24 (Feb. 3)); cf. SINCIAIR, supra note 72, at 120 (“It is often said that the principle of good faith in the process of interpretation underlies the concept that interpretation should not lead to a result which is manifestly absurd or unreasonable.”).

123 Cayuga Indian Claims (U.S./Gr. Brit.), 20 AJIL 574,587 (1926), quoted in MCNAIR, supra note 73, at 384-85.

124 Article 3.2 of the Understanding on Rules and Procedures Governing the Settlement of Disputes provides that WTO tribunals are to interpret the WTO Agreements “in accordance with customary rules of treaty interpretation.” WTO Agreement, supra note 12, Annex 2, THE LEGAL TEXTS, at 354, 33 ILM at 1226. See, e.g., United States—Standards for Reformulated and Conventional Gasoline, infra note 139, at 23 (refusing to interpret a treaty so as to reduce whole clauses to inutility). See generally Marceau, supra note 122, at 95, 115-28.

125 While nations have brought numerous cases under the WTO dispute settlement mechanism, they have generally refrained from invoking the corresponding mechanisms of multilateral environmental agreements. For example, no nation has yet brought a case under the dispute settlement mechanism of the Convention on Biological Diversity, which Article 32 of the Biosafety Protocol incorporates by reference as its own such mechanism. Similarly, no cases have been brought under the dispute settlement mechanisms of either the Montreal Protocol on Substances That Deplete the Ozone Layer, Sept. 16,1987, 1522 UNTS 293, or the Basel Convention. The WTO Secretariat’s Annual Overview of the State of Play of WTO Disputes, WT/DSB/26/Add.l (2001), is available online at <http://www.wto.org/english/tratop_e/dispu_e/dispu_e.htm>.

120 For example, the recently concluded International Treaty on Plant Genetic Resources for Food and Agriculture, adopted on November 3, 2001, available at <http://www.fao.org/biodiversity/cgrfa>, includes a savings clause in its preamble. That clause reads: “Affirming that nothing in this Treaty shall be interpreted as implying in anyway a change in the rights and obligations of the Contracting Parties under other international agreements” (emphasis omitted).

127 See supra text at note 106.

128 Inspired by the precedents set by the Biosafety Protocol and the PIC Convention, the savings clause language in the International Treaty on Plant Genetic Resources for Food and Agriculture, supra note 126, is preceded by an additional preambular clause, which states: “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” (emphasis omitted).

129 See, e.g., Reconciling Environment and Trade (Edith Brown, Weiss & John, H. Jackson eds., 2001)Google Scholar: Bates, Jenny & Debra, S. Knopman, After Seattle, 17 Envtl. F. Jan.-Feb. 2000, at 30, 30 Google Scholar (headnote) (“Following the collapse of the World Trade Organization meeting in December, the false choice between increased trade and a healthier environment needs to be debunked. We should seek both of these closely intertwined, often mutually supportive goals.”).

130 In this connection, the savings clause included in the International Treaty on Plant Genetic Resources for Food and Agriculture, supra note 126, is followed by a second additional preambular clause, which states: “Understanding that the above recital [the savings clause] is not intended to create a hierarchy between this Treaty and other international agreements” (emphasis omitted).

131 Examples of savings clauses include, to name but a few, Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, June 17, 1994, Art. 8, 33 ILM 1328 (1994), available at <http://www.unccd.int/convention/menu/php>; Vienna Convention on Consular Relations, Apr. 24, 1963, Art. 73(1), 21 UST 77, 596 UNTS 261; Convention Establishing the European Free Trade Association, Jan. 4, 1960, Art. 37, at <http://secretariat.efta.int>; Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, Art. 7(1), 21 UST 2517, 330 UNTS 3. Most of these, as well as other, examples of savings clauses can be found in The Treaty Maker’s Handbook 217–21 (Blix, Hans & Jirina, H. Emerson eds., 1973)Google Scholar.

132 During the negotiation of the International Treaty on Plant Genetic Resources for Food and Agriculture, for example, some nations opposed the inclusion of a savings clause (which would ensure the preservation of rights and obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights, commonly known as the TRIPS Agreement, WTO Agreement, supra note 12, Annex 1C, THE LEGAL TEXTS, at 321, 33 ILM 1197 (1994)) on the ground that such a clause would establish a “hierarchy.”

133 Marceau, supra note 122, at 127 n.131 (citing, inter alia, Jenks, C. Wilfred The Conflict of Law-Making Treaties, 1953 Brit. Y.B. Int’l L. 401)Google Scholar; Pauwelyn, supra note 70, at 550 (“international law recognizes a presumption against conflict”).

134 SINCLAIR, supra note 72, at 98.

135 Jenks, supra note 133, at 426 (“A conflict in the strict sense of direct incompatibility arises only where a party to the two treaties cannot simultaneously comply with its obligations under both treaties.”); Marceau, supra note 122, at 127 n.131; Wirth, supranote68, at 242; see also SINCLAIR, supra note 72, at 97 (noting that the chairman of the committee that drafted the text that ultimately became Article 30 of the Vienna Convention stated, when introducing that text: “In the view of the Drafting Committee, the mere fact that there was a difference between the provisions of a later treaty and those of an earlier treaty did not necessarily mean that there existed an incompatibility ...”);cf. Restatement (Third) of the Foreign Relations Law of The United States § 114 cm t. a (1987) (U.S. courts should interpret a statute, if they have a reasonable option of doing so, in a manner that is consistent with U.S. international obligations).

136 Pauwelyn, supra note 70, at 550 (“In most cases, potential conflicts can be ‘interpreted away’“); sources cited supra note 135.

137 See generally Pauwelyn, supra note 70, at 551 (noting that the WTO has adopted a strict definition of conflict that recognizes conflict only when one legal obligation prevents the fulfillment of another legal obligation, but objecting to this approach).

138 See supra note 135. Marceau, supra note 122, at 127 n.131, notes that the possibility of conflict between a WTO provision and a provision of another treaty was addressed briefly in the WTO Appellate Body Report, Argentina— Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items, WT/DS56/AB/R & Corr. 1, DSR1998: III, 1033 (adopted Apr. 22,1998), which concluded that there was no “irreconcilable” conflict between Argentina’s Memorandum of Understanding with the International Monetary Fund and Article VII of the GATT 1994.

139 Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, paras. 166-72 (Oct. 12, 1998) (adopted Nov. 6, 1998) [hereinafter Shrimp/Turtle case]; World Trade Organization, Report of the Committee on Trade and Environment, WT/CTE/W/40, para. 171 (Nov. 7, 1996) (supporting multilateral solutions based on international cooperation and consensus as the best way for governments to tackle problems of a transboundary or global nature); cf. Appellate Body Report, United States— Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, at 27 (Apr. 29,1996) (adopted May 20, 1996) (noting that the United States did not reveal what, if any, efforts had been taken “to enter into appropriate procedures in cooperation with the governments of Venezuela and Brazil”); GATT Panel Report, United States— Restriction on the Imports of Tuna, reprinted in 30 ILM 1594 (1991) (submitted to the parties Aug. 16,1991) (unadopted panel report expressing the desirability of a multilateral framework to protect dolphins because they roam the waters of the high seas).

140 See Charnovitz, supra note 49; see also Philip, M. Nichols, GATT Doctrine, 36 Va.J.Int’l L. 379,464–65 (1996)Google Scholar (observing that “[i]f the World Trade Organization were to rule, for example, that the Convention on International Trade in Endangered Species or some other equally popular agreement violated the provisions of the trade agreements, popular acceptance of the World Trade Organization would probably decline” (citations omitted)).

141 Protocol, supra note 1, Arts. 7, 15.

142 See WTO Secretariat, supra note 124.

143 CITES, supra note 71; Montreal Protocol, supra note 125; Basel Convention, supra note 100.

144 The Uruguay Round produced a “new GATT 1994,” see supra note 12.

145 See supra note 66.

146 See, e.g., Charnovitz, Steve, Critical Guide to the WTO’s Report on Trade and Environment, 14 Ariz.J. Int’l & Comp. L. 341, 347–48 & n.56 (1997)Google Scholar (citing over sixteen articles and books on the potential clash between the WTO Agreements and various multilateral environmental agreements); Rutgeerts, Ann, Trade and Environment: Reconciling the Montreal Protocol and the GATT, J. World Trade, No. 4, 1999, at 61 Google Scholar. Some commentators posit that, under the principle of lex specialis derogate generalis (the special rule prevails over the general), environmental agreements involving a specific sector of the trade regime like the Montreal Protocol and the Basel Convention would prevail over the “more general” WTO Agreements. Rutgeerts, supra, at 67; Wirth, supra note 68, at 242-43; Wold, Chris, Multilateral Environmental Agreements and the GATT: Conflict and Resolution? 26 Envtl. L. 841,912–13 (1996)Google Scholar. However, the principle of lex specialis derogat generalis, by its own terms, requires an analysis of the rules at issue. Thus, as between two treaties, the requirements of one treaty may be more specific on a given subject, while the requirements of the other may be more specific on another subject. It would be inaccurate to conclude that the Biosafety Protocol is more specific in toto than the WTO Agreements. For example, the WTO Agreements are quite specific on the issue of discrimination between nations, while the Protocol is largely silent on this point.

147 See text supra at note 142.

148 These reports are available online at <http://www.wcmc.org.uk/CITES/eng/cop>, <http://www.unep.org/ozone>, and <http://www.unep.ch/basel/meetings/copl-4>. See also Report of the Legal Working Group of the Basel Convention, UNEP/CHW/LWG/2/8 (Oct. 19,2000) (considering the relationship between the Basel Convention and the then draft agreement on persistent organic pollutants, but giving no similar consideration to the relationship between the Basel Convention and the Uruguay Round agreements); Report of the 18th Meeting of the Open-ended Working Group of the Parties to the Montreal Protocol (Nov. 24, 1998), available at <http://www.unep.org/ozone/18oewg-rpt.html> (considering the implementation of the Montreal Protocol in light of the Kyoto Protocol to the UN Framework Convention on Climate Change, but giving no similar consideration as to the implementation of the Montreal Protocol in light of the Uruguay Round agreements). Similarly, the United States, for example, does not appear to have amended the Endangered Species Act or any of its statutes implementing CITES or other multilateral environmental agreements to which it is party when it joined the 1994 Uruguay Round agreements. For U.S. implementing legislation, see Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 4813 (1994) (codified at 19 U.S.C. §3501 (2000)).

149 See sources cited in note 148 supra.

150 Protocol, supra note 1, Arts. 10(6), 11(8).

151 Id., Art. 10, para. 1 (requiring risk assessment for decisions on LMOs subject to the AIA procedure), Art. 15, paras. 1, 2 (requiring that risk assessments under the Protocol be carried out in a scientifically sound manner), Art. 16, paras. 1,2 (linking risk management measures to risk assessments) .Annex III, para. 3 (setting forth methodology for risk assessments, including that they be done in a scientifically sound manner), Art. 11, para. 6(a) (identifying risk assessment as the basis for specified parties to make import decisions on LMOs intended for food, feed, or processing).

152 SPS Agreement, Arts. 2.1, 5.1, 5.2.

153 The first three cases involving violations of the SPS Agreement to have completed the WTO dispute settlement process (the Beef Hormone case, supra notes 88-92; Australia—Measures Affecting Importation of Salmon, infra note: 169, para. 166; Japan—Varietal case, supra note 57) indicate that WTO tribunals attach tremendous importance to the requirement that a WTO member base its sanitary and phytosanitary measures on scientific risk assessment. In all three cases, the failure of the defending nation to base its SPS measure on a scientific risk assessment played a key role in the WTO Appellate Body’s determination that each nation had violated the SPS Agreement. Victor, supra note 36, at 872.

154 See supra note 151.

155 See the discussion in part I supra and text at p. 615.

156 See text supra at notes 62-65.

157 See text supra at note 64.

158 See text supra at note 64.

159 See, e.g., supra note 61.

160 The basic principle regarding the observance of treaties, pacta sunt servanda, is reflected in Article 26 of the Vienna Convention, supra note 66, which states: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” Moreover, under the principle of effective interpretation, the provision of one treaty should not be interpreted so as to nullify the effect of another treaty. Marceau, supra note 122, at 127 n.132; see also supra note 136.

161 See supra notes 135, 136.

162 See supra note 16.

163 Beef Hormone, supra note 89, paras. 113, 158(l).

164 See supra note 151.

165 Beef Hormone, supra note 89, paras. 29, 30, 158(c).

166 See Charnovitz, supra note 49, at 300 (precautionary language of Protocol appears potentially consistent with precautionary language of SPS Agreement).

167 See supra notes 151 (Biosafety Protocol), 40 (SPS Agreement).

168 See supra notes 27 (Biosafety Protocol), 42 (SPS Agreement).

169 Panel Report, Australia—Measures Affecting Importation of Salmon, WT/DS18/R, para. 8.159 (June 12, 1998), Appellate Body Report, WT/DS18/AB/R, para. 177 (Oct. 20,1998) (adopted Nov. 6,1998); Victor, supra note 36, at 907-08.

170 Australia—Measures Affecting Importation of Salmon, supra note 169, Appellate Body Report, paras. 163, 167, 169.

171 Id., para. 170.

172 United States—Standards for Reformulated and Conventional Gasoline, supra note 139, at 6, 25, 28-29. Under the 1994 U.S. gasoline rules, which were designed to reduce pollution from gasoline combustion, U.S. refiners could demonstrate their compliance with the new rules by using individual baselines based on a refinery’s 1990 data. Foreign refiners, in contrast, had to demonstrate their compliance based on the more costly and stringent statutory baseline for compliance. Id. at 5-6.

173 Id. at 27-28 (explaining that the United States did not consider it feasible to require its domestic refiners to incur the physical and financial burdens entailed by immediate compliance with the statutory baseline but disregarded such considerations when it came to foreign refiners). Christopher, John Duncan, Reconciling U.S. Regulatory Procedure with the WTO Reformulated Gasoline Decision, in Reconciling Environment and Trade, supra note 129, at 185,196-99 Google Scholar.

174 United States—Standards for Reformulated and Conventional Gasoline, supra note 139, at 6 (explaining that the U.S. Environmental Protection Agency prepared a rule that would have enabled foreign refiners to use individual baselines but that Congress enacted legislation denying funding for its implementation). Duncan, supra note 173, at 189-90 (noting that opposition to this rule came particularly from members of Congress with ties to the oil industry).

175 Murphy, supra note 39, at 83-85.

176 Appellate Body Report, European Communities—Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R, paras. 162, 168 (Mar. 12, 2001) (adopted Apr. 5, 2001).

177 Environment News Service (ENS), WTO Upholds French Ban on Asbestos (Mar. 13, 2001), available at <http://ens.lycos.com>. In the Shrimp/Turtle case, supra note 139, paras. 134, 145, 186, the WTO Appellate Body ultimately upheld the use of GATT Article XX(g) (which permits measures for the conservation of exhaustible natural resources) to restrict trade in shrimp caught in a manner that threatens endangered sea turtles. The Appellate Body, however, found that the United States was applying its otherwise legitimate measure to protect sea turtles in a manner that discriminated between member states. Id., paras. 184,186. The Appellate Body stressed that its decision that the United States was applying its legitimate environmental measure in a discriminatory way should not be understood as indicating “that the protection and preservation of the environment is of no significance to the Members of the WTO. Clearly, it is.” Id., para. 185. It further exhorted:

We have not decided that the sovereign nations that are Members of the WTO cannot adopt effective measures to protect endangered species, such as sea turtles. Clearly, they can and should. And we have not decided that sovereign states should not act together bilaterally, plurilaterally or multilaterally, either within the WTO or in other international fora, to protect endangered species or to otherwise protect the environment. Clearly, they should and do.

Id.