Fragmentation or interaction: the WTO, fisheries subsidies, and international law
Published online by Cambridge University Press: 17 September 2009
Subsidies to the fishing sector have trade and ecological consequences, especially for fisheries that are over-exploited. In response, WTO members are negotiating to clarify and improve the Agreement on Subsidies and Countervailing Measures. Yet significant legal challenges constrain this ongoing effort because fisheries conservation and management matters are often addressed by the United Nations Convention on the Law of the Sea, instruments of the Food and Agriculture Organization, and other legal regimes to which some WTO members have not consented. This article analyses modes of learning and information exchange within the WTO regime, and compares the proposed use of standards, benchmarks, and peer review in the draft fisheries subsidies rules with existing arrangements between the WTO and organizations such as the OECD and product standard-setting bodies. It argues that novel deliberative strategies of regime interaction are more important in resolving the challenges posed by international law's fragmentation than adherence to strict mandates or legal hierarchies.
- Review Article
- Copyright © Margaret A. Young 2009
1 FAO, The State of World Fisheries and Aquaculture (‘SOFIA’) (2006) 33.
3 World Bank and FAO, The Sunken Billions: The Economic Justifications for Fisheries Reform (2008) 21.
4 See Carr, Christopher and Scheiber, Harry, ‘Dealing with a Resource Crisis: Regulatory Regimes for Managing the World's Marine Fisheries’ (2002) 21 Stanford Environmental Law Journal 45, 54Google Scholar (noting the special preferences secured by the ‘concentrated minority’ of commercial fishing interests).
5 For example, OECD countries are estimated to pay USD 6 billion a year to support their fisheries sectors: see OECD, Subsidies: A Way Towards Sustainable Fisheries? Policy Brief (December 2005); developing countries also provided significant support to their fisheries sector: APEC, Study into the Nature and Extent of Subsidies in the Fisheries Sector of APEC Member Economies (2000). The methodology of these papers involved querying governments on their levels of financial support. Stone comments on a study undertaken for the FAO that adopted a different methodology by inferring the level of government support through an industry profile that subtracted gross costs from gross revenues on a global basis, and reported an apparent $54 billion deficit: see Christopher Stone, ‘Too Many Fishing Boats, Too Few Fish: Can Trade Laws Trim Subsidies and Restore the Balance in Global Fisheries?’, in Kevin Gallagher and Jacob Werksman (eds.), International Trade and Sustainable Development (2002) 286, 293–294.
6 WWF, Hard Facts, Hidden Problems: A Review of Current Data on Fishing Subsidies (2001) 18 (incorporating notifications to the OECD and the World Bank, and including capital and infrastructure investments, insurance, foreign access payments and measures improving harvesting techniques).
7 The EU has allocated EUR 3.8 billion in subsidies to its fisheries sector over the next seven years: ‘Friends of Fish Denounce EU Aid Package’, Financial Times (17 June 2006).
8 WWF estimates the US to pay out $1 billion annually, and Canada to pay out over $800 million annually, based on OECD and APEC data. WWF refers to ‘official reports of annual fishing subsidies in Korea’ to estimate expenditure there of over $300 million, but notes discrepancies with WTO and OECD figures. China's APEC notifications amount to $50 million but WWF notes that a number of known subsidy programs are not given monetary values: WWF, above n. 6, 18–19.
12 See, e.g., Stephen Krasner's definition of ‘regimes’ as ‘sets of implicit or explicit principles, norms, rules, and decision-making procedures around which actors’ expectations converge in a given area of international relations': ‘Structural Causes and Regime Consequences: Regimes as Intervening Variables’, in Stephen Krasner (ed.), International Regimes (1983) 1, 3. Krasner's ‘actors’ are impliedly sovereign states, although the other contributors to this volume do incorporate perspectives of transnational elites (see, e.g., Oran Young, ‘Regime Dynamics: The Rise and Fall of International Regimes’, in that volume at 93). The International Court of Justice applied the concept of ‘self-contained regime’ to distinguish a set of specific international rules from general international law in Case Concerning the United States Diplomatic and Consular Staff in Tehran (United States of America v Iran)  ICJ Reps 41 at para. 86, discussed in Simma, Bruno, ‘Self-Contained Regimes’ (1985) 16 Netherlands Yearbook of International Law 111.CrossRefGoogle Scholar
13 Entered into force in 1994; currently 157 parties http://www.un.org/Depts/los/convention_agreements/convention_agreements.htm (as at 4 December 2008). A notable non-party is the United States of America.
14 As discussed by the International Law Commission (ILC), ‘Report of the Study Group, Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law: Conclusions’ (A/CN.4/L.702) (18 July 2006); see also ‘Analytical Study’ finalized by the Chairman (A/CN.4/L.682 and Corr.1) (13 April 2006).
16 Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products WT/DS58/AB/R (circulated 12 October 1998).
17 ILC Conclusions, above n. 14, Conclusion (2), 7–8; see also Joost Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (2003). For a sceptical perspective influenced by systems theory, see Fischer-Lescano, Andreas and Teubner, Gunther, ‘Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law’ (2004) 25 Michigan Journal of International Law 999.Google Scholar
19 According to the same principle, a more specific regime will usually have priority over general international law: ibid., Conclusion (5), 8–9; Conclusions (11)–(16), 12–13.
21 See UNCLOS, Art. 55–75, esp. Art. 57.
22 William Burke, The New International Law of Fisheries: UNCLOS 1982 and Beyond (1994) 23.
23 UNCLOS, Art. 69–70; see also Art. 71.
24 An example is the recently renegotiated agreement between the EU and Mauritania, under which the EU will pay EUR 75.25 million a year to catch 250,000 tonnes of fish species, including octopus, crab, crawfish, sardines, anchovies and lobster, from 1 August 2008 to 31 July 2012: see (2008) 8:5 Bridges Trade and Biological Resources News Digest. For a criticism of the exploitative effect of these arrangements, with a particular focus on the EU–Senegalese fishing relations, see Witbooi, Emma, ‘Governing Global Fisheries: Commons, Community Law and Third-Country Coastal Waters’ (2008) 17(3) Social and Legal Studies 369.CrossRefGoogle Scholar
25 UNCLOS, Arts. 116–120.
26 See theories developed from the premise most famously described by Hardin, where multiple users face disincentives in adopting conservation measures that might benefit free-riding competitors: Hardin, Garrett, ‘The Tragedy of the Commons’ (1968) Science 1243.Google ScholarPubMed For arguments against the inevitability of tragedy, see Elinor Ostrom, Governing the Commons: the Evolution of Institutions for Collective Action (1990) (analysing conditions that alleviate commons tragedy such as the ability of individuals affected by relevant rules to participate in modifying the rules and monitoring of compliance).
27 UNCLOS, Art. 116–119. This was the basis of Chile's claim in the swordfish dispute: see above n. 15.
29 UNCLOS, Art. 64.
30 Robin Churchill and Vaughan Lowe, The Law of the Sea (3rd edn, 1999) 296–305.
31 Tore Henriksen, Geir Hønneland, and Are Sydnes, Law and Politics in Ocean Governance: the UN Fish Stocks Agreement and Regional Fisheries Management Regimes (2006) 3.
32 An example of the former is the International Commission for the Conservation of Atlantic Tunas (ICCAT); an example of the latter is the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR).
33 One description amongst many of the problem of flag-states is contained in Richard Herr, ‘The International Regulation of Patagonian Toothfish’, in Olav Schram Stokke (ed.), Governing High Seas Fisheries: The Interplay of Global and Regional Regimes (2001) 303.
34 This phenomenon – known by the acronym ‘IUU’ – occurs when resources of both EEZs and the high seas are plundered without effective flag state control; see further below n. 54 and surrounding text.
35 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks; see further http://www.un.org/Depts/los/convention_agreements/convention_agreements.htm (last accessed 4 December 2008). Some parties are not parties to UNCLOS: see e.g. USA.
36 Fish Stocks Agreement, Art. 3.
37 Ibid., Art. 8(3) and (4). It also provides for the application of a precautionary approach to the conservation, management, and exploitation of straddling fish stocks and highly migratory fish stocks: Art. 6. For interpretation of this provision by five selected RFMOs, see Henriksen et al., above n. 31, 197–199.
38 See especially UNCLOS, Art. 64 (highly migratory species); Art. 118 (high seas); Fish Stocks Agreement, Art. 8(1).
39 M. J. Peterson, ‘International Fisheries Management’, in Peter Haas, Robert Keohane, and Marc Levy (eds.), Institutions for the Earth: Sources of Effective International Environmental Protection (1993) 249, 300. See also SOFIA (2006), above n. 1, 7. (‘Strengthening RFMOs in order to conserve and manage fish stocks more effectively remains the major challenge facing international fisheries governance.’)
40 See excerpts from the Secretary-General's Bulletin ST/SGB/1997/8 available at http://www.un.org/Depts/los/doalos_activities/about_doalos.htm (last accessed 4 December 2008). For a brief overview, see Louise de La Fayette, ‘The Role of the United Nations in International Oceans Governance’, in David Freestone, Richard Barnes, and David Ong (eds.), The Law of the Sea: Progress and Prospects (2006) 63.
41 The onus is on states to complain about lack of treaty compliance of other states: see Richard Barnes, ‘The LOSC: An Effective Framework for Domestic Fisheries Conservation?’, in David Freestone et al. (eds.) (2006), above n. 40, 233, 259, and citations therein.
42 FAO Constitution, Preamble; see also Art. XVI. (‘In this Constitution the term “agriculture” and its derivatives include fisheries, marine products, forestry, and primary forestry products’.)
43 See, e.g., United States is a member of the FAO but not UNCLOS. There are currently 151 Member Nations of the FAO, one ‘Member Organization’, the European Community, and one ‘Associate Member’: see http://www.fao.org/unfao/govbodies/membernations3_en.asp (last accessed 4 December 2008).
44 See, e.g., the biennial SOFIA, which depends heavily on inputs from domestic agencies (and excludes certain data where there are indications that production statistics are too high): SOFIA (2006), above n. 1, 5.
45 The FAO Committee on Fisheries (‘COFI’) was established in 1965 and membership currently numbers 104: see http://www.fao.org/unfao/govbodies/fishfinal_en.asp (last accessed 4 December 2008). The responsibility of COFI, as the ‘only global intergovernmental forum’ on fishery issues, is to review work programmes, conduct periodic general reviews of international fishery problems, and examine possible solutions ‘with a view to concerted action by nations, by FAO, intergovernmental bodies and the civil society’: http://www.fao.org/fishery/about/cofi (last accessed 4 December 2008). COFI may also establish sub-committees on certain specific issues; in 1985, it established the Sub-Committee on Fish Trade, and, in 2001, the Sub-Committee on Aquaculture.
46 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, adopted by the FAO Conference in 1993 and entered into force in 2003: see further http://www.fao.org/Legal/treaties/012s-e.htm (last accessed 4 December 2008).
47 FAO Code of Conduct, Art. 3.2(c). For the background and elaboration of the Code of Conduct, see http://www.fao.org/DOCREP/005/v9878e/v9878e00.htm#BAC.
54 See http://www.fao.org/DOCREP/003/y1224e/y1224e00.HTM (last accessed 4 December 2008). The concept of IUU, introduced above n. 34 and surrounding text, is defined by the IPOA-IUU at para. 3. The definition includes illegal fishing within EEZs or within high seas governed by RFMOs and unregulated fishing in areas where there are no applicable conservation or management measures ‘and where such fishing activities are conducted in a manner inconsistent with State responsibilities for the conservation of living marine resources under international law’.
55 IPOA-Capacity, para. 256.
57 IPOA-Capacity, para. 8.
58 IPOA-IUU para. 23.
60 In addition, regional plans have been notified by the European Commission and the Lake Victoria Fisheries Organization: see http://www.fao.org/fishery/publications/iuu/npoa (last accessed 4 December 2008). The Committee of Fisheries has separately endorsed a plan for a new legally binding instrument to combat IUU fishing based on the use of port state measures. It has also discussed the use of monitoring, control and surveillance, including from satellite systems: see further FAO, Report of the Twenty-Seventh Session of the Committee on Fisheries (FAO Fisheries Report No 830, 2007), para. 63–72.
61 UN, ‘Plan of Implementation of the World Summit on Sustainable Development’ (A/CONF.199/20) (4 September 2002), para. 31.
63 SCM Agreement, Art. 8, 9. The provision was adopted on a provisional basis for a period of five years: SCM Agreement, Art. 31. When it expired on 31 December 1999, a lack of consensus among WTO members meant that it was not renewed.
64 A subsidy is ‘deemed’ to exist under the SCM Agreement if there is a ‘financial contribution’ by a government or public body that confers a benefit on any domestic industry: see SCM Agreement, Art. 1.1(1).
65 See Marc Benitah, ‘Ongoing WTO Negotiations on Fisheries Subsidies’, ASIL Insight (June 2004).
66 As described with reference to the EU practice in obtaining fishing rights in several African EEZs: see above n. 24. It is unsettled whether these subsidies fall within the current definition of the SCM Agreement Art. 1. For a supporting argument, see David Schorr, ‘Towards Rational Disciplines on Subsidies to the Fishery Sector: A Call for New International Rules and Mechanisms’, in WWF, The Footprint of Distant Water Fleets on World Fisheries (1998).
67 SCM Agreement, Art. 3; see also Art. 2 and Art. 1.2.
68 But note that the SCM Agreement prohibits subsidies that are contingent on export or domestic supply ‘in law or in fact’: ibid. (emphasis added). As such, effects may become relevant; see further David Schorr, Healthy Fisheries, Sustainable Trade: Crafting New Rules on Fishing Subsidies in the World Trade Organization (WWF Position Paper, 2004) 39.
69 SCM Agreement Art. 1.2, Art. 2.
70 SCM Agreement, Art. 5.
71 See generally WTO Docs TN/RL/W/3 and TN/RL/W12.
72 SCM Agreement, Art. 25.
73 See, e.g., WTO Docs TN/RL/W3, para. 8; WTO Doc TN/RL/M/7, para. 23; WTO Doc TN/RL/M/8, para. 39.
75 WTO Ministerial Declaration adopted on 14 November 2001 (WT/MIN(01)/DEC/1, 20 November 2001), para. 28.
77 WT/MIN(05)/DEC (adopted on 18 December 2005), Annex D, para. 9.
78 Draft Consolidated Chair Texts of the AD and SCM Agreements, WTO Doc TN/RL/W/213 (30 November 2007), Annex VIII to the SCM Agreement (87–93).
79 WTO Doc TN/RL/W/232 (Annex C – Fisheries Subsidies).
80 WTO Doc TN/RL/W/237 (19 December 2008).
81 Membership varies according to time and the content of submissions. Members have included Australia, Chile, Ecuador, Iceland, New Zealand, Peru, Philippines, and the United States.
82 This perspective has been elaborated in a number of papers to the CTE and later the Rules Group. See, e.g., WTO Docs TN/RL/W/3, TN/RL/W/12, TN/RL/W/21, TN/RL/W/58, TN/RL/W/77, TN/RL/W/154, TN/RL/W/166, TN/RL/W/169, TN/RL/W/196, and TN/RL/GEN/145.
83 See, e.g., WTO Docs TN/RL/W/11, TN/RL/W/17, TN/RL/W/52, TN/RL/W/69, and TN/RL/W/97.
84 See, e.g., positions of Antigua and Barbuda, Barbados, Belize, Dominican Republic, Fiji, Grenada, Guyana, Jamaica, the Maldives, Papua New Guinea, St Kitts and Nevis, St Lucia, Solomon Islands, and Trinidad and Tobago, set out in WTO Docs TN/RL/W/136, TN/RL/GEN/57/Rev.2, esp para. 12. See also with respect to UNCLOS, claims made by WTO Doc TN/RL/W/136, p 2, reproduced by Roman Grynberg and Natallie Rochester, ‘The Emerging Architecture of a World Trade Organization Fisheries Subsidies Agreement and the Interests of Developing Coastal States’ (2005) 39 Journal of World Trade 503, 522.
85 WTO Doc TN/RL/W82, para. 5.
86 See Rules Group meeting of 28 November 2004, summarized in WTO Doc TN/RL/M/18.
87 WTO Doc TN/RL/W/164, para. 5–6.
88 See, e.g., WTO Doc TN/RL/W/159.
89 See, e.g., WTO Doc TN/RL/W/164 (Japan).
91 See WTO Doc TN/RL/M/18, see esp para. 6 (‘One Participant noted that the sponsor's definition of a properly managed fishery covered most, if not all, of the 75 per cent of fisheries that were currently overexploited’).
92 See, e.g., applications of game theory in Howard Raiffa, John Richardson, and David Metcalfe, Negotiation Analysis: The Science and Art of Collaborative Decision Making (2003).
93 See, e.g., Hocking, Brian, ‘Changing the Terms of Trade Policy Making: From the “Club” to the “Multistakeholder” Model’ (2004) 3 World Trade Review 3CrossRefGoogle Scholar (considering domestic participatory models in the context of the EU and Canada). Cf. suggestions of problems in enhancing participation of domestic constituents by Zahrnt, Valentin, ‘Domestic Constituents and the Formulation of WTO Negotiating Positions: What the Delegates Say’ (2008) 7 World Trade Review 393.CrossRefGoogle Scholar
94 See, e.g., Korea reminded the Rules Group that OECD negotiations to discipline steel subsidies had failed because OECD participants were not able to agree on exceptions: (2004) 8:38 Bridges Weekly Trade News Digest 3.
95 An extreme formulation of this principle is contained in the Case of the S.S. ‘Lotus’ (France and Turkey), where the Permanent Court of International Justice stated that ‘[r]estrictions upon the independence of States cannot therefore be presumed’: (1927) PCIJ, Ser. A., No. 10, 18. Note also the principle that a treaty does not create either obligations or rights for a third State without its consent: VCLT Art. 34 (pacta tertiis).
97 The panel found that various environmental treaty obligations could not constitute context for the interpretation of WTO obligations according to the VCLT Art. 31(3)(c) because they had not been agreed by the entire WTO membership: see further Margaret Young, ‘The WTO's Use of Relevant Rules of International Law: An Analysis of the Biotech Case’ (2007) 56 International and Comparative Law Quarterly 907.
98 This extreme view was criticized by the ILC Analytical Study, above n. 14, para. 450 (227); see further Lindroos, Anja and Mehling, Michael, ‘Dispelling the Chimera of “Self-Contained Regimes”: International Law and the WTO’ (2006) 16 European Journal of International Law 857.CrossRefGoogle Scholar
100 Appellate Body Report, United States – Standards for Reformulated and Conventional Gasoline (US–Gasoline) WT/DS2/AB/R 17 (circulated 20 May 1996).
101 These would include the FAO, UNEP, the OECD, the World Bank and treaties such as CITES and the Convention on Biological Diversity.
102 Noted, e.g., in high-level UN consultations for improving general ocean governance: UN Doc A/55/274, Annex I, para. 15.
103 For a timely account, see Jenks, C W, ‘Coordination in International Organization: An Introductory Survey’ (1951) 28 British Year Book of International Law 29.Google Scholar
104 See Oren Perez, Ecological Sensitivity and Global Legal Pluralism: Rethinking the Trade and Environment Debate (2004), 262 (advocating links between the WTO, organizations such as UNEP and NGOs, amongst a number of policy prescriptions).
105 Marrakesh Agreement Art. V. Art. V has been considered as evidence that the WTO ‘has treaty-making power and that in principle the General Council exercises it’: Pieter Jan Kuijper, ‘Some Institutional Issues Presented before the WTO’, in Daniel Kennedy and James Southwick (eds.), The Political Economy of International Trade Law: Essays in Honour of Robert E Hudec (2002) 81, 108.
106 For example, with the UN, WIPO, the World Bank, the IMF, and the World Organization for Animal Health (OIE). See also cooperative agreements concluded by the WTO Secretariat itself, such as with UNEP: Cooperation between the WTO and UNEP Secretariats, Press Release Press/154 (29 November 1999).
107 General Council, ‘Rules of Procedure for Meetings of the General Council’, WT/L/161 (25 July 1996), Rule 11 and Annex 3. The criteria for the granting of observer status are the subject of Doha negotiations in the Special Session of the CTE: see Doha Declaration, above n. 75, para. 31(ii).
108 WTO General Council, ‘Guidelines for Arrangements on Relations with Non-Governmental Organizations’, adopted on 18 July 1996 (WT/L/162).
109 For list of observers to CTE, see WTO Doc WT/CTE/INF/6/Rev.4.
110 Olav Schram Stokke and Clare Coffey, ‘Institutional Interplay and Responsible Fisheries: Combating Subsidies, Developing Precaution’, in Sebastian Oberthür and Thomas Gehring, Institutional Interaction in Global Environmental Governance (MIT Press, 2006) 127, 136. The existence of the FAO IPOA on Capacity was communicated formally to the CTE in 1999: WT/CTE/W/126.
111 WTO Doc TN/RL/W/77, para. 8.
112 WTO Doc TN/RL/M/1; see also TN/RL/1.
113 WTO Doc TN/RL/M/7.
114 But compare the extremely sensitive Doha negotiating groups on agriculture and services, which extend observer status to the IGOs that already participated in the work of the regular committees. This comparison has been made by several members: see WTO Doc TN/TE/R/4, see para. 115.
115 Consultation by author with Director-General Lamy during online chat discussion hosted by www.wto.org, 16 November 2007. (‘The WTO today, and the GATT for 50 years before it, has always had a smaller membership than most other IGOs, but that has never stopped us from working closely with them.’)
116 On the growth of networks of bureaucrats and elites with purported representative functions, see Anne-Marie Slaughter, A New World Order (Princeton University Press, 2005); on rise of advocacy networks, see e.g. Margaret E Keck and Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics (1998).
117 See, e.g., ‘WTO Symposium on Trade and Sustainable Development within the Framework of Paragraph 51 of the Doha Ministerial Declaration’ on 10–11 October 2005, which included panellists from the FAO, UNEP and a developing country NGO: see http://www.wto.org/english/tratop_e/envir_e/sym_oct05_e/sym_oct05_e.htm#part2 (last accessed 4 December 2008).
118 See, e.g., WTO Doc WT/CTE/W/216.
119 WTO Doc WT/CTE/W/189; See also the ‘side-event’ of the FAO Sub-Committee on Fish Trade, Bremen, 2–6 June 2008.
120 See, e.g., WTO Doc WT/CTE/W/167/Add.1 (reviewing activities of APEC, FAO, OECD, UNEP as well as WWF and ICTSD).
121 See, e.g., WTO Doc TN/RL/W/197.
122 See, e.g., attendance by Director of the Rules Division to CTE: WTO Doc WT/CTE/GEN/10.
123 Interview by author with staff member of the Food and Agriculture Organization (Rome, 2 July 2008).
125 Cf. Informal country (‘job’) submissions, which are internal and not available.
126 This is in keeping with the General Council's commitment to enhancing contacts with NGOs and other organizations through secretariat consultations: See its guidelines on NGOs, above n. 108.
127 The NGO portal includes papers on fisheries subsidies submitted to the WTO by a range of NGOs, from a little-known Filipino development NGO to Greenpeace International.
128 The United Nations Environment Program has a stated strategy to ensure national coordination between trade, environment and sectoral ministries: see World Summit Plan of Implementation (2002), above n. 61, paras, 97(c), 154; see also the work of the Economics and Trade Branch (UNEP-ETB), part of the UNEP Division of Technology, Industry and Economics, at http://www.unep.ch/etb/about/index.php (accessed 30 January 2006).
131 See, e.g., http://www.unep.ch/etb/events/2007fish_symposium.php (last accessed 4 December 2008). See also workshop organized by UNEP, WWF, Oceana, and ICTSD after the circulation of the draft Chair's text in November 2007.
132 See, e.g., reported at (2006) 10:10 Bridges Weekly Trade News Digest 5.
133 See, e.g., David Schorr and John Caddy, Sustainability Criteria for Fisheries Subsidies: Options for the WTO and Beyond (Commissioned by UNEP and WWF) (2007).
134 See, e.g., formal submission by New Zealand in WTO Doc TN/RL/W/207.
135 Interview by author with staff member of the WTO Secretariat (Geneva, 24 August 2005); interview by author with staff member of the Food and Agriculture Organization (Rome, 2 July 2008).
136 See, e.g., Brazil's concept of ‘patently at risk’ fishery in WTO Doc TN/RL/GEN/79/R3 as similar to the WWF position paper noted above n. 68, 130.
137 See, e.g., comment of Director of the Rules Division about the impact of environmental NGOs on the subsidies negotiations in WTO Doc WT/CTE/GEN/10. (‘Over time, these views from civil society may eventually find their way into the negotiating positions of certain participants.’)
138 Pascal Lamy, ‘Civil Society is Influencing the WTO Agenda’ Keynote address to the WTO Public Forum on 4 October 2007: see http://www.wto.org/english/news_e/sppl_e/sppl73_e.htm (last accessed 20 March 2008).
140 Ibid., Article I.1(h), footnote 81. (The terms ‘illegal fishing’, ‘unreported fishing’, and ‘unregulated fishing’ shall have the same meaning as in para. 3 of the ‘International Plan of Action to Prevent, Deter and Eliminate Illegal Unreported and Unregulated Fishing of the [FAO]’.)
142 SPS Agreement, Art. 3.2.
143 TBT Agreement, Art. 2.
144 See esp TBT Agreement, Art. 2.4; Appellate Body Report, European Communities – Trade Description of Sardines (WT/DS231/AB/R) (circulated 26 September 2002).
145 The Codex, OIE and IPPC have historically adopted standards by consensus, with some notable and controversial exceptions: see further Motaal, Doaa Abdel, ‘The “Multilateral Scientific Consensus” and the World Trade Organization’ (2004) 38 Journal of World Trade 855.Google Scholar
146 See Appellate Body Report, European Communities – Trade Description of Sardines (WT/DS231/AB/R) (circulated 26 September 2002), para. 225 (relating to a Codex standard for the description of ‘sardines’); see also Appellate Body Report, European Communities–Measures Concerning Meat and Meat Products (Hormones) WT/DS26/AB/R (circulated 16 January 1998) (relating to a Codex hormone-treated beef standard, which had been adopted by secret vote given the lack of agreement between the United States and the European Union).
148 (2007) 11:44 Bridges Weekly Trade News Digest. Similarly, the Chair's text grants an exemption for otherwise prohibited subsidies that benefit vessel construction and operating costs ‘in the exceptional case of natural disaster relief’ (Art. I.1). This exemption is limited to a point in time at which fishing capacity is restored and ‘sustainable’. This point in time is to be ‘established through a science-based assessment of the post-disaster status of the fishery’ (footnote 77 to Art. I.1).
152 WTO Doc TN/RL/GEN/79 (see proposed Art. 6).
153 WTO Doc TN/RL/GEN/138 (see proposed Art. X.3).
154 WTO Doc TN/RL/GEN/134 (see proposed Art. 6.1).
159 On problems of rules of origin in the fisheries context, see, e.g., Roman Grynberg and Natallie Rochester, ‘Expert Opinion: Fixing Cotonou's Rules of Origin Regime’, in Adil Najam, Mark Halle, and Ricardo Meléndez-Ortiz (eds.), Trade and Environment: A Resource Book (2007) 107.
160 Notwithstanding that such a link is difficult to prove empirically: see above n. 135 and surrounding text.
165 Ibid., Art. IV. See further Marc Benitah, ‘Five Suggestions for Clarifying the Draft Text on Fisheries Subsidies’ (2008) 12:1 Bridges Trade and Biological Resources News Digest 21, 22.
169 SCM Agreement Art. 24.
170 Chair's text, above n. 78, Art. V.2. The enquiry point arrangement may have implications for the future allocation of the burden of proof for disputes: see EC–Sardines and commentary in Robert Howse, ‘The Sardines Panel and AB Rulings – Some Preliminary Reactions’ (2002) 29(3) Legal Issues of Economic Integration 247, 254; see also Henrik Horn and Joseph Weiler, ‘European Communities – Trade Description of Sardines: Textualism and Its Discontent’, in Henrik Horn and Petros Mavroidis (eds.), The WTO Case Law of 2002 (2003) 248, 275.
171 (2008) 12:4 Bridges Weekly Trade News Digest 5.
172 (2008) 12:11 Bridges Weekly Trade News Digest 6.
173 WTO Doc TN/RL/W/232 (Annex C – Fisheries Subsidies), C-60.
174 (2008) 12:11 Bridges Weekly Trade News Digest 6. In the TPRM process, the WTO member under review produces a domestic trade policy report, which is then reviewed by the WTO Secretariat, which creates its own independent report. The General Council of the WTO (acting as a ‘Trade Policy Review Body’) then scrutinizes both reports with a view to enabling ‘regular collective appreciation and evaluation’ of the member's domestic trade policies: see Annex 3 of the Marrakesh Agreement Establishing the World Trade Organization 1994, especially para. C.
175 SCM Agreement, Art. 3.1(a) footnote 5; Annex I (k). For a detailed description of its operation, see Levit, Janet Koven, ‘A Bottom-Up Approach to International Lawmaking: The Tale of Three Trade Finance Instruments’ (2005) 30 Yale Journal of International Law 125, 157–167.Google Scholar
176 OECD, ‘Arrangement on Officially Supported Export Credits’ (2008 revision): See OECD Trade and Agriculture Directorate TAD/PG(2007)28/FINAL. http://www.oecd.org/.
179 Panel Report, Brazil – Export Financing Programme for Aircraft WT/DS46/R (circulated 14 April 1999), para. 5.84. Brazil had separately complained that developing countries ‘are not members of the OECD. They have no voice in the OECD’: see para. 4.98.
182 The Rules Group negotiates on fisheries subsidies, general subsidies reform and anti-dumping issues: see above n. 75 and accompanying text.
183 Draft Consolidated Chair Texts of the AD and SCM Agreements, WTO Doc TN/RL/W/213 (31 November 2007), 76 (amendment to Annex I (k)).
184 I note, however, that panel or expert consultation did not appear to occur in the following disputes involving Annex I(k): Panel Report, Brazil – Export Financing Programme for Aircraft WT/DS46/R (circulated 14 April 1999); Appellate Body Report, Canada – Measures Affecting the Export of Civilian Aircraft WT/DS70/AB/R (circulated 2 August 1999); Panel Report (circulated 14 April 1999); Panel Report, Canada –Export Credits and Loan Guarantees for Regional Aircraft WT/DS222/R (circulated 28 January 2002).
186 Decision of the Committee on Principles for the Development of International Standards, Guides and Recommendations with relation to Articles 2, 5 and Annex 3 of the Agreement (2002): WTO Doc G/TBT/1/Rev.8. For a critical assessment of the Decision, see Rob Howse, ‘A New Device for Creating International Normativity: The WTO Technical Barriers to Trade Agreement and “International Standards”’, in Christian Joerges and Ernst-Ulrich Petersmann (eds.), Constitutionalism, Multilevel Trade Governance and Social Regulation (Hart Publishing, 2006) 383, 392–394.
187 For an analysis of the SPS Committee acting as agent of peer review, see Joanne Scott, The WTO Agreement on Sanitary and Phytosanitary Measures: A Commentary (OUP, 2007) 50ff.
188 WTO Doc G/SPS/R/47.
189 As such, the panel may request the assistance of the Permanent Group of Experts (PGE), whose conclusions shall be accepted without modification: Chair's text, above n. 78, Art. VIII.1, referring to SCM Agreement Art. 4. However, the PGE has yet to be consulted in the history of the SCM Agreement.
191 Ibid., Art. VIII.4. (‘Where a dispute arising under this Annex raises scientific or technical questions related to fisheries, the panel should seek advice from fisheries experts chosen by the panel in consultation with the parties. To this end, the panel may, when it deems it appropriate, establish an advisory technical fisheries expert group, or consult recognized and competent international organizations, at the request of either party to the dispute or on its own initiative.’) Rather than using Brazil's suggested language that the panel ‘may’ seek advice from fisheries experts, the Chair's text reproduces the United States' proposed language of ‘should’: see WTO Doc TN/RL/GEN79R3 (proposed Art. 7.1), cf TN/RL/GEN/145 (proposed Article 10).
192 Ibid. On one reading, draft Art. VIII.4 gives the panel discretion to consult with an advisory fisheries expert group or relevant international organization on scientific or technical matters. On another reading, the paragraph merely refers to the discretionary power of the panel to consult on the selection of fisheries experts. This is the interpretation preferred by the United States, which modified its initial proposal to clarify that FAO and other international organizations could be asked to provide assistance merely in identifying appropriate experts, and would not be called upon to provide expert opinions as organizations: WTO Doc TN/RL/GEN/145 (annotation to proposed Art. 10).
193 SPS Agreement, Art. 11.
195 See Appellate Body Report, Australia – Measures Affecting Importation of Salmon WT/DS18/AB/R (circulated 20 October 1998); Appellate Body Report, EC–Hormones (US and Canada) WT/DS26 and DS48/AB/R (circulated 16 January 1998); Appellate Body Report, Japan – Measures Affecting Agricultural Products WT/DS/76/AB/R (circulated 22 February 1999); Panel Report WT/DS76/R (circulated 27 October 1998).
196 Panel Report, EC – Measures Affecting the Approval and Marketing of Biotech Products Panel Report WT/DS291/R, WT/DS292/R, WT/DS293/R (circulated 29 September 2006), para. 3.1. But note that this consultation was limited in other ways, as considered in Young, above n. 97.
197 SPS Agreement, Art. 11.3.
199 See SCM Agreement, Art. 32.1.
202 See, e.g., Perez, above n. 104, 98 and citations therein with respect to UNEP acting as a representative on WTO panels.
204 The PGE may consult with and seek information from any source it deems appropriate: SCM Agreement Article 24.5. But see above n. 189 and surrounding text.
207 The phrase comes from Joanne Scott, who compares the practice of the European Court of Justice and the WTO Appellate Body in scrutinizing international standards before according them authority: Scott, Joanne, ‘International Trade and Environmental Governance: Relating Rules (and Standards) in the EU and the WTO’ (2004) 15 European Journal of International Law 307.CrossRefGoogle Scholar
209 See especially in subjecting the OECD Export Credit Arrangement to additional notification and surveillance requirements, as noted above n. 183 and surrounding text.
210 Chair's text, above n. 78, Art. V.1. This role will co-exist with the SCM Committee's ongoing surveillance of member measures: see, e.g., requirements that WTO members notify the SCM Committee of any ‘green-box’ or other measure that they consider to be exempt from disciplines (Art. VI) and rights for other members to be kept informed (Art. VI.5 and Art. V.2.). Note also that the procurement of access rights for fisheries are to be made public and notified to the SCM Committee (Art. VI.2).
211 See, e.g., Fish Stocks Agreement Art. 12, which seeks to promote transparency in the activities of RFMOs.
212 Details on the development of the FAO Code of Conduct are set out in Annex 1 of the Code. On the review of the Code, see FAO Code of Conduct Art. 4.3.
214 See WTO Doc TN/RLGEN/155/Rev.1.
215 IPOA-IUU Fishing, para. 9.
217 Guzman, Andrew, ‘Global Governance and the WTO’ (2004) 45 Harvard International Law Journal 303, 335.Google Scholar
218 Gráinne de Búrca and Joanne Scott, ‘Introduction: New Governance, Law and Constitutionalism’, in Gráinne de Búrca and Joanne Scott (eds.), Law and New Governance in the EU and the US (2006) 1; see also symposium: ‘Narrowing the Gap? Law and New Approaches to Governance in the European Union’ (2007) 13:3 Columbia Journal of European Law.
219 See, e.g., Michael Dorf and Charles Sabel, ‘A Constitution of Democratic Experimentalism’ (1998) 98 Columbia Law Review 267 (arguing that mutual learning among the decentralized bodies of the United States public administration, and involving citizens in decisions that affect them, enhances the accountability and efficiency of decision making).
220 See, e.g., Joshua Cohen and Charles Sabel, ‘Sovereignty and Solidarity: EU and US’, in Jonathan Zeitlin and David Trubek (eds.), Governing Work and Welfare in a New Economy: European and American Experiments (2003) 345. See further in relation to international harmonization, Harm Shepel, The Constitution of Private Governance: Product Standards in the Regulation of Integrating Markets (2005) 412. See also Joanne Scott, above n. 207; Patrizia Nanz, ‘Democratic Legitimacy and Constitutionalisation of Transnational Trade Governance: A View from Political Theory’, in Christian Joerges and Ernst-Ulrich Petersmann (eds.), Constitutionalism, Multilevel Trade Governance and Social Regulation (Hart Publishing, 2006) 60, 80.
221 Cooney, Rosie and Lang, Andrew, ‘Taking Uncertainty Seriously: Adaptive Governance and International Trade’ (2007) 18 European Journal of International law 523.CrossRefGoogle Scholar See also Haas, Peter, ‘Introduction: Epistemic Communities and International Policy Coordination’ (1992) 46 International Organization 1.CrossRefGoogle Scholar
223 Cf. Shaffer's work on public–private partnerships which relates to corporate actors in the WTO: see Gregory Shaffer, Defending Interests: Public–Private Partnerships in WTO Litigation (2003).
224 For the comparatively early advocacy for the integration of stakeholders in the WTO, see Shell, G. Richard, ‘Trade Legalism and International Relations Theory: An Analysis of the World Trade Organization’ (1995) 44 Duke Law Journal 829CrossRefGoogle Scholar; see also Shell, G. Richard, ‘The Trade Stakeholders Model and Participation by Nonstate Parties in the World Trade Organization’ (1996) 17 University of Pennsylvania Journal of International Economic Law 359.Google Scholar
229 See Sasha Courville, ‘Understanding NGO-Based Social and Environmental Regulatory Systems: Why We Need New Models of Accountability’, in Michael W. Dowdle (ed.), Public Accountability: Designs, Dilemmas and Experiences (CUP, 2006) 271.
230 Arguably, this was recognized by the WTO Appellate Body Secretariat when it issued a much maligned directive to potential amicus in the Asbestos litigation. By comparison, the UN requires NGOs to reveal the sources of voluntary contributions and explain other sources of funding (see UN Charter Art. 71 and ECOSOC Resolution 1996/31 adopted in 1996; see further http://esa.un.org/coordination/ngo/new/index.asp (last accessed 13 April 2008)).
231 See, on growth of networks to address ‘crisis’ situations, and an admonishment not to rely on such networks in everyday governance, Helen Hershkoff and Kingsbury, Benedict, ‘Crisis, Community, and Courts in Network Governance: A Response to Liebman and Sabel's Approach to Reform of Public Education’ (2003) 28 NYU Review of Law and Social Change 319.Google Scholar
234 See further my Trading Fish, Saving Fish: The Interaction between Regimes in International Law (Cambridge University Press, forthcoming 2010).
236 Jenks, C. W., ‘Conflict of Law-Making Treaties’ (1953) 30 British Year Book of International Law 401, 452.Google Scholar