Seals and the Need for more Deference to Vienna by WTO Adjudicators

This paper asks how World Trade Organization (WTO) panels and the Appellate Body (AB) take public international law (PIL) into account when interpreting WTO rules as a part of international economic law (IEL). Splendid isolation of the latter is not new; indeed it is intended by the negotiators of the Understanding on the Settlement of Disputes (DSU). At the same time, the Vienna Convention on the Law of Treaties (VCLT) is quite clear when it provides the general rules and the supplementary means of treaty interpretation. Despite such mandatory guidance, WTO adjudicators (when given a choice and assuming they see the conflict) prefer deference to WTO law over deference to Vienna and take a dogmatic way out of interpretation quandaries. The AB and panels make abundant reference to Vienna, though less so to substantive PIL. Often times, however, they do so simply in order to buttress their findings of violations of WTO rules. Perhaps tellingly, however, none of the reports in EC – Seals contains even a single mention of VCLT, despite numerous references to international standards addressing indigenous rights and animal welfare. In the longer term, and absent a breakthrough on the negotiation front, this pattern of carefully eschewing international treaty law and using PIL just for the sake of convenience could have serious consequences for the credibility and acceptance of the multilateral trading system. Following the adage ‘negotiate or litigate’ recourse to WTO dispute settlement increases when governments are less ready to make treaty commitments commensurate with the challenges of globalisation. This is true even for ‘societal choice’ cases on the margins of classic trade disputes. We will argue here that it is precisely for cases such as these that VCLT and PIL should be used more systematically by panels and the AB. Failing that, instead of building bridges for more coherent international regulation, WTO adjudicators could burn those same bridges which the DSU interpretation margin leaves open for accomplishing their job which is to find a ‘positive solution’. Worse, judicial incoherence could return to WTO dispute settlement like a boomerang and damage the credibility and thus the level of acceptance of the multilateral trading system per se.

Legal Aspects of Sino-­African Tied Aid: The Art of Playing with a Legal Grey Area

Sino-African trade has seen a fifty-fold increase in the years 1999 to 2008. In some African regions, particularly in sub-Saharan Africa, China has even replaced the US as the most important trading partner today. But China holds not a single FTA on the African continent, while other major trading partners of African economies rely on an extensive framework of different trade agreements. What is, thus, the legal basis of the recent increase of Sino-African trade? Interestingly, Sino-African trade has seen a particularly strong increase in countries that have entered into tied aid agreements with China. These agreements are commonly known under the term ‘Angola-Model’ and consist of a multifaceted network of barter-trading-systems, aspects of tied aid and concessions for oil and other commodities linked with a state loan. It is likely that these agreements have an impact on the trade-flows between African countries and China. This paper discusses the legal character of this new form of economic cooperation, or modern version of tied aid. Critical legal aspects related to this form of tied aid refer to violation of the principle of most-favoured nation (MFN), illegitimate export subsidies, market access, public procurement and transparency in the international trading system. However, despite the recent outcry of the foremost Western community against the strategy of the Chinese government on the African continent, the practice of the Angola-Model based tied aid is not entirely new, and neither is it against the law. The case of tied aid is situated in a legal grey area that should be examined thoroughly in order to strengthen the international trading system and to support developing countries in their attempt to gain from tied aid arrangements.

Communication services

This is a concise encyclopedia entry that discusses the applicable law of the World Trade Organization (WTO) with regard to telecommunications, audiovisual, postal and courier services, which are framed in terms of existing WTO classification under the common heading of 'Communication Services'. The chapter analyzes the pertinent rules of the General Agreement on Trade in Services (GATS), the present state of commitments, the problems faced in light of the recent technological advances that affect, albeit differently, all these sectors. It includes insights from the case-law and a brief overall appraisal of the prospects for change.

Human rights and international trade

Economic globalization and respect for human rights are both highly topical issues. In theory, more trade should increase economic welfare and protection of human rights should ensure individual dignity. Both fields of law protect certain freedoms: economic development should lead to higher human rights standards, and UN embargoes are used to secure compliance with human rights agreements. However the interaction between trade liberalisation and human rights protection is complex, and recently, tension has arisen between these two areas. Do WTO obligations covering intellectual property prevent governments from implementing their human rights obligations, including rights to food or health? Is it fair to accord the benefits of trade subject to a clean human rights record? This book first examines the theoretical framework of the interaction between the disciplines of international trade law and human rights. It builds upon the well-known debate between Professor Ernst-Ulrich Petersmann, who construes trade obligations as human rights, and Professor Philip Alston, who warns of a merger and acquisition of human rights by trade law. From this starting point, further chapters explore the differing legal matrices of the two fields and examine how cooperation between them might be improved, both in international law-making and institutions,in dispute settlement. The interaction between trade and human rights is then explored through seven case studies:freedom of expression and competition law; IP protection and health; agricultural trade and the right to food; trade restrictions on conflict WHO convention on tobacco control; and, finally, human rights conditionalities in preferential trade schemes.

Export Restrictions on Critical Minerals and Metals: Testing the Adequacy of WTO Disciplines

Conventional wisdom on the insufficiency of existing WTO disciplines on export restrictions has triggered momentum on the issue. In this book, Ilaria Espa offers a comprehensive analysis of the scope and coverage of WTO disciplines on export restrictions in light of emerging case law. She investigates whether such rules still provide a credible and effective framework capable of preventing abuses in the use of export restrictive measures on critical minerals and metals during a period of economic crisis and change in international trade patterns. Giving a broad overview of the export restrictions applied to these materials, Espa identifies distinctive features in the proliferation of export barriers and analyses the existing WTO rules to reveal their gaps and inconsistencies. She goes on to present solutions based upon her findings with the aim of bringing more coherence and equity to WTO rules on the export side.

Innovation and Development in the Age of Climate Change Adaptation: Open or Closed?

Change Adaptation: Open or Closed? Paper read at the Second African International Economic Law Network Conference, 7-8 March 2013, Wits School of Law, Johannesburg, South Africa. In a time of rapid convergence of technologies, goods, services, hardware, software, the traditional classifications that informed past treaties fail to remove legal uncertainty, or advance welfare and innovation. As a result, we turn our attention to the role and needs of the public domain at the interface of existing intellectual property rights and new modes of creation, production and distribution of goods and services. The concept of open culture would have it that knowledge should be spread freely and its growth should come from further developing existing works on the basis of sharing and collaboration without the shackles of intellectual property. Intellectual property clauses find their way into regional, multilateral, bilateral and free trade agreements more often than not, and can cause public discontent and incite unrest. Many of these intellectual property clauses raise the bar on protection beyond the clauses found in the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). In this paper we address the question of the protection and development of the public domain in service of open innovation in accord with Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) in light of the Objectives (Article 7) and Principles (Article 8) set forth in TRIPS. Once areas of divergence and reinforcement between the intellectual property regime and human rights have been discussed, we will enter into options that allow for innovation and prosperity in the global south. We then conclude by discussing possible policy developments.

Climate Change and International Law. Exploring the Linkages Between Human Rights, Environment, Trade and Investment

Mapping the relevant principles and norms of international law, the paper discusses scientific evidence and identifies current legal foundations of climate change mitigation adaptation and communication in international environmental law, human rights protection and international trade regulation in WTO law. It briefly discusses the evolution and architecture of relevant multilateral environmental agreements, in particular the UN Framework Convention on Climate Change. It discusses the potential role of human rights in identifying pertinent goals and values of mitigation and adaptation and eventually turns to principles and rules of international trade regulation and investment protection which are likely to be of crucial importance should the advent of a new multilateral agreement fail to materialize. The economic and legal relevance of rules on tariffs, border tax adjustment and subsidies, services and intellectual property and investment law are discussed in relation to the production, supply and use of energy. Moreover, lessons from trade negotiations may be drawn for negotiations of future environmental instruments. The paper offers a survey of the main interacting areas of public international law and discusses the intricate interaction of all these components informing climate change mitigation, adaptation and communication in international law in light of an emerging doctrine of multilayered governance. It seeks to contribute to greater coherence of what today is highly fragmented and rarely discussed in an overall context. The paper argues that trade regulation will be of critical importance in assessing domestic policies and potential trade remedies offer powerful incentives for all nations alike to participate in a multilateral framework defining appropriate goals and principles.

Principals, agents, and the European Union’s foreign economic policies

In the introduction to this collection on the principal–agent approach and the European Union’s (EU) foreign economic policies we briefly present the EU’s institutional structure for policy-making in trade, monetary, development and international competition and financial policy. We also offer some data on the extent of the EU’s involvement in the international economy. Our discussion of the principal–agent approach and how it can be applied to an analysis of the EU’s foreign economic policies forms the basis of the following contributions. It allows us to formulate three questions that are of particular interest for applications of the principal–agent approach to the EU. Finally, we summarize the various studies included in this collection.

EU trade agreements and their impacts on human rights: study commissioned by the German Federal Ministry for Economic Cooperation and Development (BMZ)

The European Union’s (EU) trade policy has a strong influence on economic development and the human rights situation in the EU’s partner countries, particularly in developing countries. The present study was commissioned by the German Federal Ministry for Economic Cooperation and Development (BMZ) as a contribution to further developing appropriate methodologies for assessing human rights risks in development-related policies, an objective set in the BMZ’s 2011 strategy on human rights. The study offers guidance for stakeholders seeking to improve their knowledge of how to assess, both ex ante and ex post, the impact of Economic Partnership Agreements on poverty reduction and the right to food in ACP countries. Currently, human rights impacts are not yet systematically addressed in the trade sustainability impact assessments (trade SIAs) that the European Commission conducts when negotiating trade agreements. Nor do they focus specifically on disadvantaged groups or include other benchmarks relevant to human rights impact assessments (HRIAs). The EU itself has identified a need for action in this regard. In June 2012 it presented an Action Plan on Human Rights and Democracy that calls for the inclusion of human rights in all impact assessments and in this context explicitly refers to trade agreements. Since then, the EU has begun to slightly adapt its SIA methodology and is working to define more adequate human rights–consistent procedures. It is hoped that readers of this study will find inspiration to help contribute to this process and help improve human rights consistency of future trade options.