Анаит СмбатянЗаместитель Генерального директора по экспертной работе
I would like to address two points: relationships between Accession Protocols with Multilateral Trade Agreements and interpretation of “recognition” concept under Article 6.2 of the SPS Agreement. Conclusions made from these issues in Russia – Pigs dispute require a very serious consideration.
At the outset of its analysis of relationship between Russia’s Accession Protocol with the SPS Agreement the Panel stated that is has to examine whether Russia can rely on its terms of accession to effectively shield the measure from further scrutiny under the DSU and the SPS Agreement. By posing the question in this way the Panel in fact predetermined the subsequent line of argumentation.
The Panel concluded that if a Member claims that a provision within its Protocol of Accession allows it to depart from other obligations in the Multilateral Trade Agreements, the text of such a provision should at least have clear language to that effect.
The systemic defect of this approach is in the fact that due to the legal drafting methodology the vast majority of Accession Protocols’ and Working Party Reports’ provisions do not directly refer to specific articles of Multilateral Trade Agreements. At the same time each provision of any accession protocol has intrinsic, objective links with the relevant articles and paragraphs of the Multilateral Trade Agreements based on their «subject matter«. These links should be established subsequent to deep and comprehensive analysis of respective provisions. Otherwise defendants in disputes arising from Accession Protocols find themselves in a very difficult not to say disadvantageous position. We all remember how China has been in fact deprived from its inherent right to invoke defense under general exceptions of GATT 1994 due to the lack of reference in its Accession Protocol to Article XX.
There is another important point. For the sake of completeness the Panel had to examine not only the scope of Russia’s obligations under paragraph 893 of its Protocol, but the very essence of complaining party’s rights and obligations under this paragraph. Accession Protocols are not one-side agreements. It follows that it could be the case when an Accession Protocol not only sets forth positive obligations of an acceding Member, but also WTO-minus rights of existing Members in their relations with this acceding Member. Why not? Any Accession Protocol is a deal and we cannot a priori exclude such development.
Turning to the interpretation of recognition concept in Article 6.2 of the SPS Agreement I would like to recall that up to this date it has been established in the WTO jurisprudence that the WTO Members are required to recognize the idea of area’s free or low prevalence status in the abstract, since the text of the first sentence of Article 6.2 does not refer to the manner in which a Member shallrecognize concept of regionalization.
The Panel in Russia – Pigs dispute confirmed this approach. It found that the acknowledgement of particular «abstract ideas» for the purposes of Article 6.2 is less stringent than the obligation of «ensuring» that a measure is «adapted» to the SPS characteristics of an area under Article 6.1. The Panel clarified – and I cannot but agree with it – that equating the obligations under different paragraphs of Article 6 would lead the first sentence of Article 6.2 to redundancy and inutility. Moreover equation of obligations set forth in different paragraphs of Article 6 could lead the Panel to act against the principle of effective treaty interpretation.
The Appellate Body disagreed with the Panel and actually invented a new obligation in respect of recognition concept.
In particular, the Appellate Body attached excessive significance to the fact that Article 6.3 envisages that the exporting Member may make the claim that areas within its territory have free or low prevalence status. The Appellate Body explained that the importing Member has to maintain a practice of or a process for receiving such claims from an exporting Member affected by a specific SPS measure, and thus render operational the concept of regionalization. The Appellate Body concluded that Article 6.2 requires the importing Member to provide an effective opportunity for the exporting Member to make the claim.
Thus, if until now the prevailing view was that the WTO Members are required to recognize the idea or notion of area’s free or low prevalence status in the abstract, now we have to read Article 6.2 as requiring the importing Member to provide an effective opportunity for the exporting Member to make the claim under Article 6.3.
I regret that I cannot accept these arguments.
In this regard it would be appropriate to recall the statement of Sir Fitzmaurice – distinguished international lawyer and international judge – that “the existence of international obligation should have clearest justification for it, based solidly on the language of the text or on necessary inferences drawn from the text. An inference can only be regarded as a «necessary» one, if the provision cannot operate, or will not function, without it”. (Case of Golder v. the United Kingdom, 1975).
Getting back to Russia – Pigs dispute, I would have agreed with the Appellate Body regarding the interpretation of the “recognition” concept provided that the second paragraph had been the only one in Article 6. However that is not the case. There are three paragraphs in Article 6 of the SPS Agreement. Being interconnected, these paragraphs are addressing quite different aspects of the obligation to adapt SPS measures to regional conditions. Obligations under the three paragraphs of Article 6 are independent legal grounds for claims and should not be intermixed.
I also respectively draw your attention to the words used in Article 6.2: recognition and concept. It was the very intention of the drafters to use this soft language. Otherwise they would have drafted this obligation in more stringent words such as “shall implement principle or rule of regionalization”. But they decided to go the other way. And they choice should be respected.
I’m deeply convinced that obligation that rests on mere implication but not on the text does not exist. Having deviated from a clear language of Article 6.2 the Appellate Body in fact invented a new obligation in respect of recognition of regionalization concept with a very high threshold for importing Members. Such law-making is rather difficult to reconcile with the requirements of Article 3.2 of the DSU which precludes the DSB from adding to or diminishing the rights and obligations provided in the covered agreements.
Thank you very much for your attention.
Анаит СмбатянЗаместитель Генерального директора по экспертной работе
2019 / май 31
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