II. The WTO'S Use of Relevant Rules of International Law: An Analysis of the Biotech Case

Margaret A Young

doi:10.1093/iclq/lei207

¹ Report of the Study Group of the International Law Commission as finalized by the Chairman, M Koskenniemi, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’ ILC, UN Doc, A/CN.4/L.682 and Corr.1 and Add. 1 (13 Apr 2006). The UN General Assembly took note of the conclusions of the Commission's Study Group, together with the analytical study finalized by the Chairman, on 4 December 2006: see UN Doc A/Res/61/34.

² Panel Report WT/DS291/R, WT/DS292/R, WT/DS293/R, 29 Sept 2006 (Biotech).

³ The Biotech panel used the terms ‘biotech products’, ‘GMOs’, ‘GM plants’, ‘GM crops’ or ‘GM products’ interchangeably: see paras 7.1–7.2. I have adopted the same approach, although ‘biotech’ is both a wider term and one which potentially obfuscates the issues by removing the politically charged language of ‘GM’ from the face of opinion.

⁴ Cartagena Protocol on Biosafety to the Convention on Biological Diversity (2000) 39 ILM 1027 Google Scholar. At the time of the EC's written submissions, there were 103 signatories: Biotech (n 2) para 4.340. The Protocol entered into force on 11 September 2003 and there are currently 141 parties: see <http://www.cbd.int/biosafety/signinglist.shtml> (last accessed 20 July 2007).

⁵ Biotech (n 2) paras 7.92–7.94.

⁶ Vienna Convention on the Law of Treaties (1969) 8 ILM 679 Google Scholar. There are caurrently 108 parties, many but not all of whom are members of the WTO. See further below n 42.

⁷ That these treaties and norms are contentious for WTO Members is evidenced by the current negotiations on the relationship between existing WTO rules and multilateral environmental agreements (MEAs): see para 31(i) of the Doha Declaration, Doha Agenda Ministerial WT/MIN(01)/DEC/1, 20 Nov 2001 (2002) 41 ILM 746.

⁸ ibid paras 7.49–7.96.

⁹ My use of the word ‘extrinsic’ (and, later, ‘non-WTO law’ and ‘non-WTO sources’) is not intended to confirm the Panel's starting assumptions about sources.

¹⁰ ibid para 7.94: ‘the mere fact that one or more disputing parties are not parties to a convention does not necessarily mean that a convention cannot shed light on the meaning and scope of a treaty term to be interpreted.’

¹¹ The EC legal instruments of primary relevance were those which were in force on or before the date of the establishment of the Panel on 29 August 2003, namely Directive 90/220 on the deliberate release into the environment of genetically modified organisms ([1990] OJ L117/15) (repealed 17 Oct 2002); Directive 2001/19 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220 ([2001] OJ L106/1) and Regulation 258/97 concerning novel foods and novel food ingredients ([1997] OJ L43/1): see Biotech (n 2) para 7.106.

¹² See ibid para 7.98.

¹³ ibid para 4.38.

¹⁴ The WTO covered agreements are to be clarified ‘in accordance with customary rules of interpretation of public international law’: DSU Art 3.2.

¹⁵ Convention on Biological Diversity (1992) 31 ILM 818 Google Scholar. There are currently 190 parties: see <http://www.cbd.int/convention/parties/list.shtml> (last accessed 20 July 2007).

¹⁶ See Biosafety Protocol, Art 3(g): ‘“Living modified organism” means any living organism that possesses a novel combination of genetic material obtained through the use of modern biotechnology.’

¹⁷ Biotech (n 2) para 7.95, see footnote 274: ‘The European Communities refers to the Preamble and Article 8(g) of the CBD and Articles 1, 8, 10, 11, 15, 23, 26 and Annex III of the Biosafety Protocol.’

¹⁸ SPS Agreement Annex A is reproduced below, n 40.

¹⁹ The source of the leak was not identified. Each party stated that they had no involvement with the leak and noted their concerns about it. The interim report was subsequently published on the websites of some of the NGOs that had submitted amici in the proceedings. See further Biotech (n 2) paras 6.183–6.196. China, as one of the third parties to the proceedings, was particularly concerned to bring this leak to the attention of the WTO membership: see Minutes of Meeting of the WTO Dispute Settlement Body of 21 November 2006, WT/DSB/M/222 (12 Jan 2007) para 74.

²⁰ The Panel found that the form, nature, and purpose of Directives 90/220 and 2001/18 as well as Regulation 258/97 (to the extent that that Regulation sought to prevent novel foods from being a danger to the consumer) constituted ‘SPS measures’ within the meaning of Annex A(1) of the SPS Agreement: see Biotech (n 2) paras 7.147–7.437, especially para 7.432.

²¹ ibid, paras 7.438–7.1627, especially para 7.1272.

²² ibid, para 7.1383. The complaining parties thus failed to establish that the moratorium breached Arts 5.1, 5.6 and 2.2 of the SPS Agreement.

²³ The relevant obligations were in Annex C(1)(a) and, consequently, Art 8 of the SPS Agreement: see 7.1567–7.1568. The complaining parties' claims under Arts 2.2, 2.3, 5.1, 5.5, 5.6, 7, and 10.1 and Annex B(1) and Annex C(1)(b) were rejected.

²⁴ See Biotech (n 2) paras 7.1628–7.2528. The EC was found to have failed to complete the relevant approval without undue delay and hence had breached its obligations under Annex C(1)(a), first clause, and Art 8 of the SPS Agreement: see summary, paras 7.2390–2391. For more detail see, eg, the approval procedure for Falcon oilseed rape: para 7.1813. The complaining parties' claims under 2.2, 2.3, 5.1, 5.5, 5.6, 7, Annex B(1), Annex C(1)(b), (c) and (e) of the SPS Agreement were rejected.

²⁵ See Biotech (n 2) paras 7.2545–7.2922.

²⁶ The relevant obligations were in Arts 5.1 and, by implication, the second and third requirements of Art 2.2 of the SPS Agreement: see generally paras 7.3008–7.3399. The Panel exercised judicial economy on Arts 2.3, 5.5 and 5.6 of the SPS Agreement.

²⁷ See, for the safeguard measures, Biotech (n 2) paras 7.3407–7.3430.

²⁸ Minutes of Meeting of the WTO Dispute Settlement Body of 21 November 2006, WT/DSB/M/222 (12 Jan 2007).

²⁹ ibid para 73.

³⁰ See, eg, Biotech Annex D, D-91, para 18 with respect to the CBD and Biosafety Protocol: ‘The European Communities is not inviting the panel to “apply” these instruments as such, but rather to ensure that the WTO rules are interpreted consistently with them.’

³¹ See Panel Report, Korea–Measures Affecting Government Procurement, WT/DS/163/R (1 May 2000) para 7.96 with respect to customary international law: ‘Such international law applies to the extent that the WTO treaty agreements do not “contract out” from it. To put it another way, to the extent there is no conflict or inconsistency, or an expression in a covered WTO agreement that implies differently, we are of the view that the customary rules of international law apply to the WTO treaties and to the process of treaty formation under the WTO.’ See further Palmeter, D and Mavroidis, PC, ‘The WTO Legal System: Sources of Law’ (1998) 92 AJIL 398, 409 CrossRef Google Scholar; Bartels, L, ‘Applicable Law in WTO Dispute Settlement Proceedings’ (2001) 35(3) J of World Trade 499 CrossRef Google Scholar; Pauwelyn, J, Conflict of Norms in Public International Law (CUP, Cambridge, 2003) 460 CrossRef Google Scholar and the Report of the ILC Study Group as finalized by Koskenniemi (n 1) para 169. For the use ‘applicable law’ in international disputes more generally, McLachlan, C, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention’ (2005) 54 ICLQ 279 CrossRef Google Scholar and references therein.

³² See, eg, Marceau, G, ‘Conflict of Norms and Conflicts of Jurisdictions: The Relationship between the WTO Agreement and MEAs and other Treaties’ (2001) 35 J of World Trade 1081, 1116 (‘the applicable law before WTO adjudicating bodies is only WTO law’).CrossRef Google Scholar

³³ I make no claim about whether the Biosafety Protocol would provide a defence to WTO obligations if applied by a WTO Panel. In this regard, see Safrin, S, ‘Treaties in Collision? The Biosafety Protocol and the World Trade Organization Agreements’ (2002) 96 AJIL 606 CrossRef Google Scholar, who claims that the Protocol is compatible with the WTO regime. By contrast, if WTO and Biosafety Protocol obligations were found to conflict, these might be resolved in favour of the Protocol due to its status as lex specialis or, indeed, the application of another rule of recognition. For further discussion of the lex specialis rule, see Report of the ILC Study Group as finalized by Koskenniemi (n 1) paras 46–422.

³⁴ The US, for example, referred to the Panel's terms of reference under Art 7.1 of the DSU which are to examine the matter at issue ‘in light of the relevant provisions … in the covered agreements cited by the parties to the dispute’: Biotech (n 2) para 7.56. Some commentators have considered this clause to restrict the applicable law of a panel to WTO sources: see, eg, Marceau (n 27); contra Pauwelyn (n 26) 466–70 and references therein. Canada submitted that the only binding international law instrument relevant to the case was the International Plant Protection Convention.

³⁵ Appellate Body Report, United States–Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, adopted 6 Nov 1998, DSR 1998: VII, 2755.

³⁶ Biotech (n 2) para 7.72.

³⁷ The Panel had already given its interpretation of ‘the parties’ in VCLT Art 31(3)(c), paras 7.68–7.70: see further my Part C below.

³⁸ The issues of applicable law and interpretation are interrelated but distinct: see Report of the ILC Study Group as finalized by Koskenniemi (n 1) para 423. For recent judicial consideration of the relationship between applicable law and interpretation, see Case Concerning Oil Platforms (Iran v United States of America) (2003) 42 ILM 1334. In this case, the jurisdiction of the ICJ was limited by the clause of the 1955 Treaty of Amity, Economic Relations and Consular Rights between the United States and Iran. The question was how far the Court could rely on customary norms in interpreting the terms of that treaty, a clause of which allowed the parties to use measures ‘necessary to protect its security interests’. The Court used VCLT Art 31(3)(c) to interpret the phrase in accordance with the law on the use of force by reference to the provisions of the UN Charter and customary international law: see p 1352. Judge Higgins disagreed with the approach of the majority: see esp pp 1386–7 (‘[The Court] has rather invoked the concept of treaty interpretation to displace the applicable law]).

³⁹ Note also the possible relevance of VCLT Art 30 or Art 41. These conflict rules were considered by the ILC in the context of its work on fragmentation: see further Report of the ILC Study Group as finalized by Koskenniemi (n 1) paras 251–66; 295–319.

⁴⁰ Annex A:1 of the SPS Agreement reads: ‘1. Sanitary or phytosanitary measure—Any measure applied: (a) to protect animal or plant life or health within the territory of the Member from risks arising from the entry, establishment or spread of pests, diseases, disease-carrying organisms or disease-causing organisms; (b) to protect human or animal life or health within the territory of the Member from risks arising from additives, contaminants, toxins or disease-causing organisms in foods, beverages or feedstuffs; (c) to protect human life or health within the territory of the Member from risks arising from diseases carried by animals, plants or products thereof, or from the entry, establishment or spread of pests; or (d) to prevent or limit other damage within the territory of the Member from the entry, establishment or spread of pests’.

⁴¹ DSU Art 3.2 (n 14).

⁴² The Appellate Body has considered VCLT Arts 31 and 32 to have each attained the status of rules of customary or general international law: see, respectively, United States–Standards for Reformulated and Conventional Gasoline (US Gasoline), WT/DS2/AB/R (20 May 1996) 15–16; Japan–Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R (4 Oct 1996) 9.Google Scholar

⁴³ See n 8.

⁴⁴ The relationship between MEAs and the WTO are subject in the proviso that the negotiations will not affect WTO Members who are not parties to the relevant MEAs: see Doha Declaration (n 7).

⁴⁵ Biotech (n 2) para 7.68.

⁴⁶ ibid.

⁴⁷ ibid, paras 7.74–7.75.

⁴⁸ Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 Feb 1998, DSR 1998:I, 135.

⁴⁹ McLachlan (n 31) para 16. This point was made by the Panel, which noted that Article 31 did not purport to lay down rules of interpretation ‘which are applicable solely in the context of international (quasi-)judicial proceedings’. The Panel contrasted this with VCLT Article 66, which deals with procedures for judicial settlement, arbitration and conciliation and makes reference to ‘the parties to a dispute’: see Biotech (n 2) para 7.68, footnote 241.

⁵⁰ Second Written Submission of the United States at Biotech (n 2) para 4.543; Second Written Submission of Canada at Biotech (n 2) para 4.600; Second Written Submission of Argentina at Biotech (n 2) para 4.688.

⁵¹ Biotech (n 2) para 7.60.

⁵² Third Party Oral Statement of Australia, ibid para 5.12.

⁵³ Palmeter and Mavroidis (n 31) 411. This is also implicit in Marceau (n 32) 1087.

⁵⁴ The principle of effective interpretation was considered by the ILC to be implicit in the doctrine of interpretation of good faith in accordance with the ordinary meaning of the text, and was therefore not given separate expression in the VCLT: see [1996] Ybk of the International Law Commission Vol II, p 219, para 6.Google Scholar For further references to the Appellate Body's application of the principle, see Korea—Definitive Safeguard Measures on Imports of Certain Dairy Products, WT/DS98/AB/R, p 24.

⁵⁵ The ‘parties to the WTO Agreement’ include customs territories, which are simply unable to be parties to treaties like the CBD, thus rendering Art 31(3)(c) inutile if it can only be applied to treaties of identical membership. Of course, interpreting the VCLT in the light of the (different) parties to the WTO might be taking an evolutionary approach to interpretation too far.

⁵⁶ VCLT Art 41. See also VCLT Art 30 and 59.

⁵⁷ Bartels, L, ‘Article XX of GATT and the Problem of Extraterritorial Jurisdiction’ (2002) 36 J of World Trade 353, 360—1.Google Scholar Bartels considers that, unlike the EC, the WTO system is founded on regulatory diversity and does not call for the uniform interpretation of WTO rules: ibid.

⁵⁸ Report of the ILC Study Group as finalized by Koskenniemi (n 1) para 471.

⁵⁹ ibid para 450: ‘The panel buys what it calls the “consistency” of its interpretation of the WTO Treaty at the cost of the consistency of the multilateral treaty system as a whole.’

⁶⁰ ibid para 472: ‘A better solution [for the use of treaties under VCLT Article 31(3)(c)] is to permit reference to another treaty provided that the parties in dispute are also parties to that other treaty.’

⁶¹ ibid.

⁶² See Pauwelyn (n 31) 440–86;Google Scholar and Pauwelyn, , ‘A Typology of Multilateral Treaty Obligations: Are WTO Obligations Bilateral or Collective in Nature’ (2003) 14 EJIL 907 Google Scholar; and, more recently, Carmody, C, ‘WTO Obligations as Collective’ (2006) 17 EJIL 419.CrossRef Google Scholar

⁶³ The Study Group considered the Appellate Body Report in US–Shrimp to be demonstrative of this approach.

⁶⁴ The Study Group's conclusions were published in a separate document from the Report: see Conclusions of the Work of the Study Group, A/CN.4/L.702 (18 July 2006).Google Scholar

⁶⁵ ibid 15, para (21).

⁶⁶ Interpretations of the WTO Agreement can be adopted by the Ministerial Conference and the General Council: Marakkesh Agreement Establishing the WTO, Art IX(2. See also the fact that international standards can become binding on WTO members even if they are not agreed by consensus: this is dealt with below, n 153, and surrounding text.

⁶⁷ Case C–2/90 Commission v Belgium (9 July 1992) para 35Google Scholar. The Court took account of the Basel Convention of 22 March 1989 on the control of transboundary movements of hazardous wastes and their disposal. The Convention was not in force at the time of the judgment and the Community was only a signatory.

⁶⁸ Permanent Court of Arbitration: Dispute Concerning Access to Information under Art 9 of the OSPAR Convention: Ireland v United Kingdom—Final Award (2 July 2003) (2003) 42 ILM 1118 Google Scholar.

⁶⁹ Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (25 June 1998) (1999) 38 ILM 517.Google Scholar

⁷⁰ Convention for the Protection of the Marine Environment of the North-East Atlantic (22 Sept 1992) (1992) 32 ILM 1069.Google Scholar

⁷¹ Griffith drew on rules of interpretation independent of the VCLT: see Ireland v United Kingdom—Final Award (2 July 2003) (2003) 42 ILM 1118, 1163.Google Scholar

⁷² VCLT Art 31(3)(b) provides that subsequent practice may be taken into account in interpreting a treaty if the practice has established ‘the agreement of the parties regarding its interpretation’.

⁷³ Brownlie, , Principles of Public International Law (6th edn, OUP, Oxford, 2003) 605.Google Scholar

⁷⁴ Appellate Body Report, European Communities–Customs Classification of Frozen Boneless Chicken Cuts, WT/DS269/AB/R, WT/DS286/AB/R (27 Sept 2005) para 273.Google Scholar

⁷⁵ The Biotech Panel considered this construction of Art 31(3)(b) to be supportive of its interpretation of Art 31(3)(c): see Biotech (n 2) para 7.68, note 243.

⁷⁶ VCLT Art 31(1) provides: ‘A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.’

⁷⁷ Biotech (n 2) para 7.92.

⁷⁸ The use by WTO dispute settlement bodies of dictionaries has been criticized as an overtextual approach: see Horn, H and Weiler, JHH, ‘European Communities—Trade Description of Sardines: Textualism and its Discontent’ in Horn, H and Mavroidis, PC (eds) The WTO Case Law of 2002 (CUP, Cambridge, 2003) 248 Google Scholar. The Appellate Body has nodded towards the limitations of dictionaries: see, eg, Canada—Measures Affecting Export of Civilian Aircraft, WT/DS70/AB/R para 153: ‘Clearly, however, dictionary meanings leave many interpretative questions open.’

⁷⁹ ibid, cf para 7.69.

⁸⁰ ibid, para 7.95.

⁸¹ ibid, para 7.92. The Panel continued in a footnote: ‘Equally, in a case where all disputing parties are parties to a convention, this fact would not necessarily render reliance on that convention appropriate.’ This is presumably a further example of the Panel's reticence to frame the problem in terms of applicable law, discussed above (n 36) and surrounding text.

⁸² ibid, para 7.95.

⁸³ ibid, para 7.96.

⁸⁴ ibid.

⁸⁵ See Part D below.

⁸⁶ McLachlan (n 31) para 17: ‘reference may properly be made to other treaties, even if they are not in force between the litigating parties, as evidence of the common understanding of the parties as to the meaning of the terms used. This may be done pursuant to the overall requirement of Article 31(1) to consider the object and purpose of the treaty.’ But see Report of the ILC Study Group as finalized by Koskenniemi (n 1) para 450: ‘taking “other treaties” into account as evidence of “ordinary meaning” appears a rather contrived way of preventing the “clinical isolation” as emphasized by the Appellate Body.’

⁸⁷ The Appellate Body did refer to VCLT Arts 31(3)(c) and 32 in its interpretation of the chapeau of GATT Art XX, for which it sought ‘additional interpretative guidance, as appropriate, from the general principles of international law’: see paras 157–8.

⁸⁸ See Aust, A, Modern Treaty Law and Practice (CUP, Cambridge, 2000) 186–7.Google Scholar

⁸⁹ See, eg, its interpretation that the ‘generic term “natural resources” in Article XX(g) is not “static” in its content or reference but is rather “by definition, evolutionary”’ [footnotes omitted]: US–Shrimp (n 35) para 130.

⁹⁰ Consistently with VCLT Art 31(1), the Appellate Body considered the term ‘exhaustible natural resources’ according to its ordinary meaning, and found that ‘exhaustible’ did not ordinarily exclude ‘renewable’: ibid para 128. Moreover, the good faith and object and purpose test of Art 31 is particularly relevant to the Appellate Body's reliance at para 131 on the principle of effectiveness: see further Yearbook of the ILC (n 54).

⁹¹ eg it found the relevant context in the preambular reference in the WTO Agreement to the principle of ‘sustainable development’. This necessitated ‘exhaustible natural resources’ to be read according to contemporary concerns: US–Shrimp (n 35), para 129.

⁹² See, eg, the Appellate Body's consideration of the subsequent practice of the international community in entering various international agreements, including UNCLOS, CBD and Agenda 21 (without considering whether these were signed by parties): ibid para 130. In addition, the two adopted GATT reports cited by the Panel in support of its approach might be said to constitute subsequent practice according to VCLT Art 31(3)(b): ibid para 131.

⁹³ eg it would be manifest that an interpretation of ‘natural resources’ that failed to update it according to contemporary ecological concerns would be unreasonable or absurd. Also falling within Art 32 might be the use made by the Appellate Body of the drafting history of the GATT, which it footnoted as failing to demonstrate that the framers intended to exclude ‘living’ natural resources from the scope of Art XX(g): ibid footnote 114.

⁹⁴ See, eg, Pauwelyn (n 31) 260; Bartels (n 57) 354.

⁹⁵ Lauterpacht, H, The Development of International Law by the International Court (Frederick A Prager, New York, 1958) 52–60 Google Scholar, reproducing in substantial terms his ‘A Note on the Doctrine of “Plain Meaning”’ (1950), which he submitted to the Institute of International Law: (1950) 42 Annuear 377–90Google Scholar. Indeed, the contextual and contestable nature of meaning has been a preoccupation of many disciplines of academic thought. Most notably, the idea behind deconstruction, as found for example in the works of Derrida, is that words or terms always and necessarily defer to other different terms in a conceivably endless process.

⁹⁶ Although it may seem odd to turn to supplementary means to interpret the phrase ‘ordinary meaning”, I note that this reading is confirmed by reference to the ILC Commentary on the VCLT. The ILC did not appear to anticipate that the ‘ordinary meaning’ would necessitate the reference to any extrinsic texts beyond those texts that established the ‘context’ of the treaty in Art 31(2): see Yearbook of the ILC (n 54) 221, para 12.

⁹⁷ VCLT Art 31(3); Art 31(4).

⁹⁸ ibid Art 32.

⁹⁹ In advocating the use of Art 31(1) as part of a process of systemic integration, McLachlan points to both its purposive aspects as well as the ‘ordinary meaning’: McLachlan (n 31) para 17: ‘In many cases, this kind of purposive enquiry [of Art 31(1) and 31(4)] will provide a better explanation for decisions referring to other treaties within the WTO DSU than Article 31(3)(c) itself. The open-textured language of exclusions in the Covered Agreements themselves calls for a programmatic interpretation which may properly take account of other material sources of international law. In doing so, the tribunal is using other treaties not so much as sources of binding law, but as a rather elaborate law dictionary.’ McLachlan advances this argument as a qualification to his restrictive interpretation of the term ‘the parties’ in Art 31(3)(c), an interpretation that was also adopted by the Panel. His other qualification relates to the applicable law between the disputing parties, as described above at n 31 and surrounding text.

¹⁰⁰ This evidence would be rebutted by the ‘savings clause’ in the Biosafety Protocol, which states that WTO rights are not to be affected: see further Safrin (n 33).

¹⁰¹ On the goal of ‘sustainable development’, which is recognized in the Preamble to the Marrakesh Agreement Establishing the WTO, see US–Shrimp. Recent literature emphasizes the integrative nature of this principle: see Segger, MC Cordonier and Weeramantry, CG (eds), Sustainable Development: Reconciling Economic, Social and Environmental Law (Martinus Nijhoff, The Hague, 2004)Google Scholar, which I reviewed in (2007) 56 ICLQ 209. On ‘mutual supportiveness’ see below n 150 and surrounding text.

¹⁰² See below n 146 and surrounding text.

¹⁰³ See above n 83 and surrounding text.

¹⁰⁴ Peel, J, ‘A GMO by Any Other Name … Might Be an SPS Risk!: Implications of Expanding the Scope of the WTO Sanitary and Phytosanitary Measures Agreement’ (2006) 17 EJIL 1 CrossRef Google Scholar. But note that Canada considered the result of the Panel to be an overly narrow interpretation of Annex A: see DSB Meeting 21 Nov 2006 (WT/DSB/M222) para 66.

¹⁰⁵ A more comprehensive examination of the Panel's interpretation of Annex A terms can be found in Peel, ibid.

¹⁰⁶ SPS Agreement, Annex A (a), (c), (d).

¹⁰⁷ Revisions to the IPPC were approved at the FAO in 1997 to reflect the role of the IPPC in relation to the Uruguay Round Agreements of the WTO, particularly the SPS Agreement. The new revised text entered into force on 2 October 2005. See further <https://www.ippc.int/IPP/En/default.jsp> (accessed 20 July 2007).

¹⁰⁸ Biotech (n 2) para 7.187.

¹⁰⁹ ibid para 7.241.

¹¹⁰ ibid.

¹¹¹ ibid para 7.242. Other situations included ‘situations of unintentional gene flow or transfer from a GMO plant (“out-crossing”) leading to cross-breeds between GM plants and other plants … which have undesired introduced traits’” and ‘situations where pesticide-producing … GM plants increase the potential for the development of pesticide-resistance in target organisms, notably insects’.

¹¹² See ibid paras 7.2677–7,2678 (Austria); para 7.2726 (France); paras 7.2787–2788; 7.2791 (Germany); para 7.2906 (Luxembourg); and paras 7.2828, 7.2833 (Greece).

¹¹³ Biotech (n 2) paras 7.277–7.278.

¹¹⁴ Above n 40.

¹¹⁵ Biotech (n 2) para 7.288.

¹¹⁶ ibid paras 7.291–7.292.

¹¹⁷ ibid paras 7.2630, 7.2676 (Austria), para 7.2786 (Germany); para 7.2837 (Greece).

¹¹⁸ ibid para 7.295.

¹¹⁹ ibid para 7.300.

¹²⁰ ibid para 7.297.

¹²¹ ibid para 7.301.

¹²² ibid paras 7.305–7.316

¹²³ ibid para 7.321.

¹²⁴ There are many other examples of the Panel's interpretation of Annex A terms: see, eg, ibid paras 7.147–7.437.

¹²⁵ ibid para 7.333.

¹²⁶ ibid.

¹²⁷ ibid. See also para 7.337.

¹²⁸ ibid para 7.334.

¹²⁹ This reasoning was applied to the Austria safeguard measure on B-176: ibid paras 7.2643, 7.2783.

¹³⁰ ibid para 7.350.

¹³¹ For an account of that challenge, see Second Written Submissions of the EC, ibid para 4.748: ‘it is clear that the “common and ordinary” meaning approach advocated, in some instances, by the complaining parties, to the exclusion of the international definitions, would not be sufficient. The common language definitions of SPS terms are often so vague and broad as to deprive of any meaning the categories and distinctions set out in Annex A.1. For instance, the definition proposed by the United States of the term “toxin” (“any substance which, when introduced into or absorbed by a living organism, destroys life or injuries health”) is capable of encompassing anything, from a chemical residue to a lead bullet.’

¹³² Special regard may be had to principles familiar to many administrative lawyers, such as the judicial reviewability of failures by decision-makers to take relevant considerations into account.

¹³³ Biotech (n 2) para 7.96, above n 83 and surrounding text.

¹³⁴ As described above, three unsolicited briefs were submitted to the Panel; one was from a group of university professors and the other two were from coalitions of NGOs.

¹³⁵ Biotech (n 2) para 7.11, citing US–Shrimp.

¹³⁶ ibid para 7.11.

¹³⁷ ibid para 7.19.

¹³⁸ ibid para 7.18.

¹³⁹ eg the Panel asked the experts to comment on how the relevant scientific documentation relied on by the EC Member States in establishing their safeguard measures compared with documentation of several international organizations: see ibid Annex H-170. The Panel referred to IPSM, FAO/WHO Codex principles and Annex III of Biosafety Protocol. Canada disputed that Annex III could be construed as an ‘international standard’ in these terms: ibid Annex I-2 para 119.

¹⁴⁰ See, eg, the disagreement between the parties at the interim review stage over the representation of expert opinion on antibiotic resistant marker genes: ibid paras 6.36–6.41.

¹⁴¹ ibid para 7.18.

¹⁴² ibid para 7.31; see also para 7.96.

¹⁴³ ibid para 7.96.

¹⁴⁴ ibid para 7.31: ‘it should be noted that the Parties were consulted both on the international organizations from which information would be sought and on the list of terms on which information would be sought.’

¹⁴⁵ See above n 45 and surrounding text.

¹⁴⁶ See above n 59 and surrounding text.

¹⁴⁷ The disputing parties' influence on treaty interpretation will of course also result from the content and quality of their submissions to a panel.

¹⁴⁸ Ministerial Decision on Trade and Environment, 14 Apr 1994, Marrakesh Agreement Establishing the WTO (available at <http://www.wto.org>).

¹⁴⁹ Above n 7, para 6: ‘We are convinced that the aims of upholding and safeguarding an open and non-discriminatory multilateral trading system, and acting for the protection of the environment and the promotion of sustainable development can and must be mutually supportive … We welcome the WTO's continued cooperation with UNEP and other inter-governmental environmental organizations. We encourage efforts to promote cooperation between the WTO and relevant international environmental and developmental organizations.’

¹⁵⁰ For criticism that the Panel in Biotech failed to incorporate the concept of mutual supportiveness, see N 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 Annual WTO Conference, May 2007, available on the website of the Center for International Environmental Law (<http://www.ciel.org>).

¹⁵¹ See SPS Agreement Art 3.1 and TBT Agreement Art 2.4. See further EC–Trade Description of Sardines (WT/DS231/AB/R), especially paras 171–316.

¹⁵² TBT Art 1.1 provides that ‘[g]eneral terms for standardization and procedures for assessment of conformity shall normally have the meaning given to them by definitions adopted within the United Nations system and by international standardizing bodies taking into account their context and in the light of the object and purpose of this Agreement.’

¹⁵³ In the dispute settlement context, see especially SPS Agreement Art 11.2. But this also operates outside of dispute settlement: see SPS Agreement Art 5.1 (‘[Members risk assessment techniques to take] into account risk assessment techniques developed by the relevant international organizations’); Art 5.7 (provisional measures to be based inter alia on available pertinent information from relevant international organizations); Art 6.1 (in adapting SPS measures to regional conditions, Members shall take into account ‘appropriate criteria or guidelines which may be developed by the relevant international organizations’); Art 9.1 (Members to facilitate technical assistance inter alia through appropriate international organizations).

¹⁵⁴ (n 48) para 194. See further Motaal, DA, ‘The “Multilateral Scientific Consensus” and the World Trade Organization’ (2004) 38 J of World Trade 855.Google Scholar

¹⁵⁵ Biotech (n 2) para 7.300.

¹⁵⁶ SPS Agreement Annex A.3.

¹⁵⁷ TBT Agreement Annex 1:4.

¹⁵⁸ Sardines (n 138) para 225.

¹⁵⁹ Decision of the Committee on Principles for the Development of International Standards, Guides and Recommendations with relation to Arts 2, 5 and Annex 3 of the Agreement. These principles are found in Section IX of the Decisions and Recommendations adopted by the Committee since 1 January 1995, G/TBT/1/Rev. 8, 23 May 2002 (‘In order to improve the quality of international standards and to ensure the effective application of the Agreement, the Committee agreed that there was a need to develop principles concerning transparency, openness, impartiality and consensus, relevance and effectiveness, coherence and developing country interests that would clarify and strengthen the concept of international standards under the Agreement and contribute to the advancement of its objectives.’)

¹⁶⁰ There has been a long-standing request by the CBD and the Biosafety Protocol for observer status to the SPS Committee, which has been delayed on political grounds: see further Scott, J, The WTO Agreement on Sanitary and Phytosanitary Measures: A Commentary (OUP, Oxford, 2007) 63.Google Scholar

¹⁶¹ I note that the ILC Study Group's mandate did not extend to a consideration of institutional issues relevant to the fragmentation and diversification of international law: see Report of the ILC Study Group as finalized by Koskenniemi (n 1) para 13.

¹⁶² I recall that the panel declined to comment on whether law binding on all the disputing parties would be necessarily applied by it: see above n 36 and surrounding text.

¹⁶³ For a comparison with the European Communities' coexistence with standard-setting bodies, see Scott, J, ‘International Trade and Environmental Governance: Relating Rules (and Standards) in the EU and the WTO’ (2004) 15 EJIL 307.CrossRef Google Scholar

¹⁶⁴ For a similar idea in relation to treaty interpretation, see Qureshi, AH, Interpreting WTO Agreements: Problems and Perspectives (CUP, Cambridge, 2006) 114–59, 120 CrossRef Google Scholar (‘The development dimension as an objective needs to be factored in at the time of drafting the WTO Agreements, institutionalised in the very process of interpreting the WTO Agreements, engineered into actual interpretations of the WTO Agreements and facilitated through the introduction of development-friendly material into the judicial process’).

¹⁶⁵ For additional considerations such as the concepts of subsidiary and flexibility, see Scott (n 163) 346.

¹⁶⁶ For an assessment of an enhanced judicial role in participation, information-sharing and principled decision-making, see Scott, J and Sturm, SP, ‘Courts as Catalysts: Re-thinking the Judicial Role in New Governance’ (2007) 13 Columbia J of Eur L, available at SSRN <http://ssrn.com/abstract=982281> )(last accessed 7 June 2007)+)(last+accessed+7+June+2007)>Google Scholar.

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II. The WTO'S Use of Relevant Rules of International Law: An Analysis of the Biotech Case

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