No CrossRef data available.
Article contents
Damages as an Antidote to the Remedial Deficiencies in the WTO Dispute Settlement Process: A View from Sub-Saharan Africa
Published online by Cambridge University Press: 21 May 2009
Extract
Without question, countries from Sub-Saharan Africa are very minimally involved in the Dispute Settlement Process (DSP) of the World Trade Organization (WTO). Out of the 275 panel and Appellate Body decisions that have been rendered within the WTO DSP since 1995, only three have involved disputants from Sub-Saharan Africa. The region plays a minimal role in the global economy generally and in the WTO specifically, a fact that has generated much discussion lately. The highest levels of the WTO leadership recognize that ‘smaller developing countries’ need to be more integrated and resourced to enable them to participate fully in the global economy.
- Type
- Articles
- Information
- Copyright
- Copyright © T.M.C. Asser Press 2001
References
2. See Blackhurst, R., Lyakura, B. and Oyejide, A., Improving African Participation in the WTO (September 1995) p. 1 (unpublished paper commissioned by the World Bank for a Conference at the WTO on 20–21 September 1999, on file with the author; hereinafter referred to as ‘Improving African Participation’).Google Scholar
3. Ibid.; for an on-line database detailing the settled and ongoing disputes in the WTO panels and Appellate Body see the website of the WTO at www.wto.org.
4. See generally Mshomba, R. E., Africa in the Global Economy (Boulder, Col., Lynne Rienner Publishers 2000)Google Scholar and Dasgupta, P., An Inquiry into Well-being and Destitution (Oxford, Clarendon Press 1993).Google Scholar
5. See the remarks of Mike Moore, the WTO Director General, to this effect available as part ofthe WTO daily press clippings at http://www.news.com.au/finance/4118297.htm (visited on 18 January 2001).
6. See Katona, D., ‘Challenging the Global Structure through Self Determination: An African Perspective’, 14 Am. U L Rev. (1999) p. 1439.Google Scholar
7. Ibid.
8. This article, however, recognizes that the exclusion may not be the product of the deliberate design or machinations of a particular person, group or entity. It is rather a cumulative effect of the way in which man has structured trade over the years taking into account the difference in the resource endowments in each region.
9. See Improving African Participation, supra n. 2, at p. 3.
10. See The Final Act Annex 2 Understanding on Rules and Procedures Governing the Settlement of Dispute, 1994, 33 ILM (1994) p. 1226 (hereinafter referred to as the Dispute Settlement Understanding or DSU).
11. Ibid., Art. 22.
12. See generally Young, M. K., ‘Dispute Resolution in the Uruguay Round: Lawyers Triumph over Diplomats’, 29 International Law (1995) p. 389 at p. 394.Google Scholar
13. See Gray, C., Judicial Remedies in International Law (Oxford, Clarendon Press 1990) pp. 77–92.CrossRefGoogle Scholar
14. Keynes, J. M., The General Theory of Employment, Interest and Money (London, Macmillan 1964) pp. 388—384.Google Scholar
15. A seminal work on early arbitration practice is Ralston, J. H., International Arbitration from Athens to Locarno (Stanford, Stanford University Press 1929). For a fairly comprehensive discussion on the evolution and types of judicial remedies under public international law generally see Gray, op. cit. n. 13. The centrality or otherwise of customary international law in the structure of remedies in international law has also been discussed to a large extent. At p. 1, Gray opines rather cryptically: ‘Customary International Law cannot today provide any principles, criteria or methods for determining a priori how reparation is to be paid for injury caused by a wrongful act or omission.’Google Scholar
16. The very contentious nature of international dispute settlement and the extent to which national interests can be vindicated has been recently portrayed in the Bananas Dispute. Indeed to this point in the history of the General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO), no case has been more contentious. The official text of the Panel Report addressing the American complaint is ‘WTO, Panel Report on the European Communities – Regime for the Importation, Sale and Distribution of Bananas’, WT/DS27/R/USA(22 May 1997) (adopted 25 September 1997). The official text ofthe Appellate Body Report is ‘WTO, Report of the Appellate Body on the European Communities – Regime for the Importation, Sale and Distribution of Bananas’, WT/DS27/AB/R (9 September 1997) (adopted 25 September 1997). Both texts are published onthe WTO's website, http://www.wto.org. See also Bhala, R., ‘The Bananas War’, 31 McGeorge L Rev. (2000) p. 839.Google Scholar
17. The growing momentum of concern for the economic plight of Sub-Saharan Africa within various international organizations including the WTO is an idea that has acquired the tenacity that every great idea is bound to have. A time has come when the world has realized that the integration of Sub-Saharan Africa into the global multilateral trading and investment system, on appropriate terms could enhance ‘the conditions for more rapid investment and overall economic growth by providing more favorable and secure market access for the region's export products, and by fostering the expansion and diversification of the markets’. See Improving African Participation, supra n. 2. Perhaps, the words of the WTO Director General, Mike Moore, best capture the spirit with which the WTO would like to include the developing countries: ‘I want to see that smaller, developing countries have a champion who ensures that they are more resourced to enable them to participate fully to promote their interests.’ See http://www.news.com.au/finance/4118297.htm (visited on 18 January 2001), a news article distributed in the WTO daily press clippings.
18. The region has 47 countries south of the Sahara desert. South Africa is excluded because it is commonly thought that her economy is at par with many developed countries. The countries are Angola, Benin, Botswana, Bouvet Island, Burkina Faso, Burundi, Cameroon, Cape Verde, Central African Republic, Chad, Comoros, Congo, Democratic Republic of Congo, Côte d'lvoire, Equatorial Guinea, Gabon, Gambia, Ghana, Guinea, Guinea-Bissau, Kenya, Lesotho, Liberia, Madagascar, Malawi, Mauritius, Mayotte, Mozambique, Namibia, Niger, Nigeria, Reunion, Rwanda, Saint Helena, Sao Tome and Principe, Senegal, Seychelles, Sierra Leone, Sudan, Swaziland, Tanzania, Togo, Uganda, Zambia and Zimbabwe.
19. This is not to say that Sub-Saharan African countries have not made any efforts to increase the volume of their trade and partners. The odds against these endeavors may themselves be debilitating. See Expanding Trade with Sub-Saharan Africa: Hearings Before the Subcommittee on Trade of the House Ways and Means Committee, 105th Cong. (Washington, US Government Printing Office 1997) pp. 2–3 (statement of H. E.Newai Gebre-Ab, Chief Economic Advisor to the Prime Minister of Ethiopia) (testifying about the international marginalization of Ethiopia and other Sub-Saharan nations due to consistent internal strife). The European Economic Community, even after the colonial era, has historically given more attention to Africa than the United States. See generally European Union, Europa, Development Policy, available at http://europa.eu.int/pol/dev /info_en.htm (emphasizing that the Lomé Convention, signed in 1975, is ‘far and away the most important regional agreement’ for assisting most of the developed world, including the seventy African, Caribbean, and Pacific countries).Google Scholar
20. Africa's external debt burden continues to be a major obstacle to investment and further growth, particularly in the highly indebted poor countries. Many Sub-Saharan Africa economies are unusually indebted with an average of twenty per cent of the GDP going directly to debt servicing, according to UNCTAD. See Sachs, J. D. and Stevens, S. E., The Africa Competitiveness Report 1998 (Geneva, World Economic Forum 1998) p. 7, available at http://www.ksg.harvard.edu/cid/acr98exec.pdf.Google Scholar
21. WTO Secretariat, From GATT to the WTO: The Multilateral Trading System in the New Millenium (The Hague, Kluwer Law International 2000) p. 117.Google Scholar
22. But see Katona, , loc. cit. n. 6, at p. 1439.Google Scholar Some writers have strongly objected to the view that Africa's salvation lies in the specter of globalization. Katona, for example, states in his conclusion that ‘Sub-Saharan Africa's poor need a weapon to protect themselves from the crushing force of globalization. The governments of these nations are more likely to join the globalization movement due to… the increased dominance of the IMF and the WTO, the creation of unilateral treaties like the African Growth Act, and the international political pressure to seek integration. All of these factors combine to leave sub-Saharan governments with little choice over developmental options for their countries’ economies. Accordingly, International Law should provide some form of defense for these governments against forced development. The arguments of the majority of the globalization nay sayers rely on the erosion of sovereignty and self-determination. For a very illuminating discussion of the concept of Sovereignty within public international law see Brand, R. A., ‘The Role of International Law in the Twenty-First Century: External Sovereignty and International Law’, 18 Fordham ILJ (1995) p. 1685.Google Scholar
23. See Gravelle, M., ‘Symposium: Social Justice and Development: Critical Issues Facing the Bretton Woods System: Africa and the Uruguay Round’, 6 Transnat'l L & Contemp. Probs. (1996) p. 123.Google Scholar See generally Hudec, R. E., Enforcing International Trade Law: The Evolution of the Modern GATT Legal System (Salem, NH, Butterworth Legal Publishers 1993).Google Scholar
24. See From GATT to the WTO, op. cit. n. 21, at p. 117.
25. Ibid.
26. From GATT to the WTO, op. cit. n. 21, at p. 125. With respect to the participation of Africa in the Uruguay Round, the writer notes: ‘The limited participation of African countries compared with other developing countries in the Uruguay Round was due in part to resource constraints on these low-income countries, as well as a shortage of competent staff. It also reflected a widespread belief in Africa that the GATT/WTO system remained a club of rich countries.’
27. See ibid. A number of studies including Oyejide's work, at From GATT to the WTO, op. cit. n. 21, at p. 116, suggests that many African countries at this time did benefit from the Most Favored Nation principle that extended to the reciprocal tariff reductions negotiated between the developed countries. It is suggested further that these countries were therefore ‘content to free-ride on those reductions rather that directly engage in reciprocal negotiations themselves’. Whereas this was clearly a reason, it would be spurious to suppose that mere inertia born of unsolicited advantage could have been the main reason.
28. See From GATT to the WTO, op. cit. n. 21, at p. 117.
29. Ibid. Oyejide further explains the forms in which the ‘asymmetrical process’ was reflected. First the developed countries were on average more protectionist than they were to themselves. Secondly, several of the trade restrictions applied by the developed countries were specifically targeted at exports from the developing countries. Thirdly the most serious restrictions were placed precisely on those goods in which the low-income countries typically had a comparative advantage in producing and exporting. One of the chief benefits that Sub-Saharan African countries stand to derive from forceful participation in the WTO is the addition of their voice to the crescendo that restrictions on these products should be reduced or entirely abolished.
30. The WTO organizes three Trade Policy Courses every year for trade officials from developing countries. Participants are proposed by governments that are members or observers of the WTO, or are in the process of applying for membership. More than 1,700 trade officials of developing countries have benefited these courses since 1955. See http://www.wto.org/english/thewto_e/train_e/train_e.htm. There are numerous other provisions that are targeted at making developing countries identify more with the WTO by according them various privileges. These include the amendments to Art. XVIII that introduced for the first time the concept of differential treatment of developing countries. The Secretariat also offers developing country members additional legal advice and assistance in respect of dispute settlement. To this end it makes available the services of a qualified legal expert from the WTO technical cooperation services to any developing country member which so requests.
31. Renato Ruggiero, a former WTO Director General has called the Dispute Settlement Process the ‘WTO's most individual contribution to the stability of the global economy’. See From GATT to the WTO, op. cit. n. 21, at pp. 1–2.
32. The full name is the ‘Understanding on Rules and Procedures Governing the Settlement of Disputes’. For the complete text of the DSU and other Uruguay Round Agreements, see The Results ofthe Uruguay Round of Multilateral Trade Negotiations: The Legal Texts (Geneva, GATT Secretariat 1994).Google Scholar
33. See Hudec, R., ‘The New WTO Dispute Settlement Procedure: An Overview ofthe First Three Years’, 8 Minnesota Journal of Global Trade (Winter 1999) p. 8.Google Scholar
34. See Davey, W., ‘World Trading System’, in Pescatore, P., Davey, W. J. and Lowenfeld, A., eds., The Handbook of GATT/WTO Dispute Settlement (Ardsley-on-Hudson, NY, Transnational Juris Publications 1994).Google Scholar
35. See Hoekman, B. M. and Mavroidis, P. C., WTO Dispute Settlement, Transparency and Surveillance (1999), a seminar paper available on the World Wide Web at http://www.worldbank.org/wbiep/trade/papers_2000/dispute_settlement.pdf. The use of DSP in the first five years of the WTO would appear to support the optimistic expectations. Over 160 requests for consultations were brought to the WTO in its first five years of operation; three times more on a per annum basis than under the GATT. Developing countries are more often involved than in the past. About 25 per cent of all cases were brought by or against developing countries. Some developing countries have successfully contested actions by large players (e.g., the Costa Rica/US restrictions on cotton textiles and the Venezuela and Brazil/US gasoline regulations). In spite of this apparent participation by the developing world, there has been a marked absence of participation by African countries.Google Scholar
36. See WT/DS168/1, South Africa – Anti-dumping Duties on the Import of Certain Pharmaceutical Products From India, Complaint By India. This request, submitted on 1 April 1999, was in respect of a recommendation for the imposition of definitive anti-dumping duties by the South African Board on Tariffs and Trade. India alleged that South Africa initiated anti-dumping proceedings against the importation of Ampicillin and Amoxycillin of 250 mg capsules from India. India contended that the definition and calculation of the ‘normal value’ was inconsistent with South Africa's WTO obligations, because erroneous methodology was used for determining the normal value and the resulting margin of dumping. India further contended that the determination of injury was not based on positive evidence and did not include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry, which led to an erroneous determination of material injury suffered by the petitioner. Accordingly, the evaluation was not unbiased or objective. Rather cryptically, India also claimed that the South African authorities did not take into account India's special situation as a developing country. The complaint was brought under Arts. 2, 3, 6(a) to (c) individually and in conjunction with 12, 12 and 15 of the Anti-Dumping Agreement; and Arts. I and VI of GATT 1994.
Nigeria has been involved as a third party in United States – Import Prohibition of Certain Shrimp and Shrimp Products, 15 May 1998,1998 WL 256632 WT/DS58/R. Senegal, Ghana, Nigeria and Cameroon were also involved as third parties in European Communities – Regime for the Importation, Sale and Distribution of Bananas AB-1997–3, 9 September 1997, 1997 WL 577784 WT/DS27/AB/R.
37. Art. 27(2) of the DSU foresees additional legal advice and assistance in respect of dispute settlement to developing country members, and provides that the Secretariat shall make available a qualified legal expert from the WTO technical cooperation services to any developing country member which so requests. However, these experts may not find full acceptance on the part of Sub-Saharan African countries that have a skewed perception of the intentions of the WTO. In accordance with Art. 27(3) of the DSU, the Secretariat organizes special training courses to enable members' experts to be better informed about the rules and practices of dispute settlement in the WTO. Whereas this is commendable effort by the WTO, such sessions are insufficient in disabusing members of their skepticism.
38. Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, 15 April 1994, 33 ILM (1994) p. 1143. This document is also available on-line at http://lawschool.westlaw.com/, cited as 1994 WL 761484 (G.A.T.T.).
39. For a list of Contracting Parties, see ibid., p. 1131 (introductory pages of Final Act).
40. General Agreement on Tariffs and Trade, 30 October 1947,61 Stat. A11, T.I.A.S. 1700, 55 UNTS 187, 194 (commonly referred to as the GATT).
41. Final Act Art. I.
42. Final Act Annex 2, Understanding on Rules and Procedures Governing the Settlement of Dispute, 33 ILM (1994) p. 1226.
43. Ibid., Art. 17, para. 1 which states: ‘A standing Appellate Body shall be established by the DSB. The Appellate Body shall hear appeals from panel cases. It shall be composed of seven persons, three of whom shall serve on any one case. Persons serving on the Appellate Body shall serve in rotation. Such rotation shall be determined in the working procedures of the Appellate Body.’
44. Ibid., Art. 2, para. 4 which states as follows: ‘Where the rules and procedures of this Understanding provide for the DSB to take a decision, it shall do so by consensus.’
45. See generally Shell, G. R., ‘Trade Legalism and International Relations Theory: An Analysis of the World Trade Organization’, 44 Duke LJ (1995) p. 829 at pp. 833–837 (discussing the move towards trade legalism and the philosophy supporting such a move).CrossRefGoogle Scholar
46. Ibid., p. 836.
47. See generally Brand, R. A., ‘GATT and the Evolution of United States Trade Law’, 10 Brook JIL (1992) p. 101.Google Scholar
48. See generally Jackson, J. H., ‘Managing the Trading System: The World Trade Organization and the Post-Uruguay Round GATT Agenda’, in Kenen, P. B., ed., Managing the World Economy Fifty Years after Bretton Woods (Washington, DC, Institute for International Economics 1994) p. 131.Google Scholar
49. Jackson, J. H., The World Trading System: Law and Policy of International Economic Relations (Cambridge, Mass., MIT Press 1989) p. 33.Google Scholar
50. Ibid., p. 37.
51. See generally Jackson, J. H. and Davey, W. J., Legal Problems of International Economic Relations (St. Paul, Minn., West 1986) pp. 293–324 (discussing GATT's troubled origins).Google Scholar
52. In its first draft, GATT devoted only two articles to dispute resolution. Art. XXII consisted of one paragraph and Art. XXIII consisted of three. See GATT Arts. XXII, XXIII. Only two of these paragraphs discussed dispute resolution procedure. Ibid. In contrast, the WTO provides 27 articles on dispute procedure alone. See generally Dispute Settlement Understanding.
53. GATT Art. XXII.
54. See generally Plank, R., ‘An Unofficial Description of how a GATT Panel Works and Does Not’, J Int'l Arb. (December 1987) p. 53.Google Scholar
55. Ibid.
56. Ibid., p. 88.
57. Shell, loc. cit. n. 45, at p. 842.
58. See, e.g., Uruguay Round Legislation: Hearings before the Senate Finance Comm., 103rd Cong., 2nd Sess. (23 March 1994) p. 195 (testimony of John, H. Jackson, Hessel, E. YntemaProfessor of Law, University of Michigan).Google Scholar
59. See Young, M. K., ‘Dispute Resolution in the Uruguay Round: Lawyers Triumph over Diplomats’, 29 International Lawyer (1995) p. 389 at p. 394.Google Scholar
60. Stiles, K. W., ‘The New WTO Regime: The Victory of Pragmatism’, 4 J Int'l Land Prac. (1995) p. 3 at p. 8.Google Scholar
61. Jackson, , op. cit. n. 48, at p. 142.Google Scholar
62. Stiles, loc. cit. n. 60, at p. 8.
63. Ibid., p. 8.
64. Hudec, R. E., ‘Reforming GATT Adjudication Procedures: The Lessons of the DISC Case’, 72 Minnesota L Rev. (1988) p. 1443 at p. 1508.Google Scholar
65. Weeks, J., ‘Procedures for Dispute Settlement Under the World Trade Organization-GATT 1994 and under Chapter 19 of the North American Free Trade Agreement’, 18 llamline L Rev. (1995) p. 343 at p. 343.Google Scholar
66. Stiles, , loc. cit. n. 60, at p. 9.Google Scholar
67. Ibid.
68. Ibid.
69. For a seminal discussion of these differences of view among countries and the way in which these underlying philosophical differences have affected various countries' approaches to dispute resolution within the GATT, see Montana, M. i Mora, ‘A GATT with Teeth: Law Wins over Politics in the Resolution of International Trade Disputes’, 31 Colum. J Trans I L (1993) p. 103 at pp. 128–136.Google Scholar
70. Ibid., p. 108.
71. Ibid.
72. Stiles, loc. cit. n. 60, at p. 10.
73. See Jackson, J., Restructuring the GATT System (London, Royal Institute of International Affairs 1990) pp. 49–55.Google Scholar
74. Ibid.
75. For a more complete discussion of legalism, see generally Shell, loc. cit. n. 45.
76. Trimble, P. R., ‘international Trade and the “Rule of Law”’, 83 Mich. L. Rev. (1985) p. 1016 at p. 1017.CrossRefGoogle Scholar
77. For a good defense of the pragmatist approach, see generally Long, O., Law and Its Limitations in the GATT Multilateral Trade System (London, Graham and Trotman 1987).Google Scholar
78. Montana, i Mora, loc. cit. n. 69, at p. 110.Google Scholar
79. ‘Soft’ law is distinguished by a certain vagueness in the obligation it imposes and is generally not binding on Contracting Parties. See, e.g., Dupuy, P.-M., ‘Soft Law and the International Law of the Environment’, 12 Mich. JIL (1991) p. 420 at p. 420.Google Scholar
80. Jackson, J. H., ‘Perspectives on the Jurisprudence of International Trade: Costs and Benefits of Legal Procedures in the United States’, 82 Mich. L Rev. (1984) p. 1570 at pp. 1571–1572.CrossRefGoogle Scholar
81. See Montana, i Mora, loc. cit. n. 69, at p. 106.Google Scholar
82. Ibid.
83. Ibid.
84. Final Act Art. III, para. 1.
85. Ibid., para. 2.
86. Ibid., para. 3.
87. Ibid., para. 4.
88. Ibid., para. 5.
89. Ibid., Art. IV, para. 1.
90. Ibid., para. 2.
91. Ibid., Art. VI, para. 1.
92. Ibid.
93. Ibid.
94. Ibid., para. 2.
95. Ibid.
96. Ibid., para. 4.
97. Ibid., paras. 2–3.
98. Ibid., para. 2.
99. See Montana, i Mora, loc. cit. n. 69, at pp. 176–180.Google Scholar
100. See Shell, , loc. cit. n. 45, at pp. 840–841Google Scholar (discussing the evolution of GATT's dispute resolution system from diplomatic dispute settlement to a system of non-binding arbitration).
101. Ibid., p. 852.
102. Ibid., p. 895.
103. Dispute Settlement Understanding Art. 4.
104. Ibid., Art. 12.
105. Ibid., Art. 17.
106. Ibid., Art. 25.
107. Ibid., Art. 3, para. 7.
108. See Montana, i Mora, loc. cit. n. 69, at p. 108.Google Scholar
109. Dispute Settlement Understanding Art. 4, para. 2.
110. Ibid., paras. 5–7.
111. Ibid., para. 3.
112. Ibid., Art. 8, para. 1.
113. See Montana, i Mora, loc. cit. n. 69, at p. 106.Google Scholar
114. Dispute Settlement Understanding Art. 8, para. 2.
115. See Montana, i Mora, loc. cit. n. 69, at p. 107.Google Scholar
116. Dispute Settlement Understanding Art. 8, para. 6.
117. Ibid., para. 7.
118. Ibid.
119. Ibid., Art. 14, para. 1.
120. Ibid., Art. 12, para. 5.
121. Ibid., para. 6.
122. Ibid., Art. 15, para. 1.
123. Ibid., Art. 13, paras. 1–2.
124. Ibid., Art. 12, para. 7.
125. Ibid., para. 8.
126. Ibid., para. 9.
127. Ibid., Art. 16, para. 4.
128. This is a prominent feature of the common law legal system.
129. Ibid., Art. 17, para. 6.
130. Ibid., para. 3.
131. Ibid., para. 10.
132. Ibid., para. 11.
133. Ibid., para. 1.
134. Ibid., para. 9.
135. Ibid., para. 5.
136. Ibid., para. 4.
137. Ibid., para. 1.
138. Ibid., para. 14.
139. See Lowenfekt, A., ‘Comment: Remedies Along With Rights Institutional Reform in the New GATT’, 88 AJIL (1994).Google Scholar
140. The question of the relationship between international law and international trade law, even excluding the rather ambiguous nature of remedies, has taken on a greater significance with the development of the legal regime of the WTO. Although in a formal legal sense the WTO differs little from other international organizations like the United Nations and its agencies, its legal regime is built on ‘assumptions that are often at variance with those underlying the traditional sovereign state model’. Moreover, the WTO dispute settlement mechanism is playing an active role in the development of the substantive and procedural content of international law. The contributions of this process include clarification of the rules relating to treaty interpretation, and the development of rights of access for non-state entities. These developments have implications for some of the assumptions on which international law traditionally has been based. It is easy o t foresee fundamental changes being effected onto the corpus of international law as we know it. For a very stimulating discussion on the interlink between the law being evolved by the WTO and general international law see McRae, D., ‘The WTO in International Law: Tradition Continued or New Frontier?’, 3 Journal of International Economic Law (2000) pp. 27–41.CrossRefGoogle Scholar
141. Statute of the International Court of Justice, Art. 38, 26 January 1945, 59 Stat. 1055, 1060; T.S. No. 993 at p. 30 (commonly referred to as the Statute of the ICJ).
142. There have been further variations to the modern definition of customary international law. The definition has been expanded further as treaties themselves are considered evidence of customary international law. Although treaties are binding only on contracting states and rules of customary law are supposedly universally binding, treaties are increasingly seen as a source of customary law. However, for a treaty rule to become part of customary international law, a high degree of clearly apparent consent is a likely condition. For a comprehensive analysis of the derivation of customary international law from treaties, see d'Amato, A., The Concept of Custom in International Law (Ithaca, NY, Cornell University Press 1971) pp. 103–166.Google Scholar See also Janis, M., An Introduction to International Law (Boston, Little, Brown and Co. 1988) pp. 9–34.Google Scholar
143. The ICJ has emphasized the complementary factors of generality and consistency in a number of judicial opinions including the Asylum case, ICJ Reports (1950) p. 266 at pp. 276–277; Nicaragua v. United States (Merits), ICJ Reports (1986) p. 14 at p. 98, para. 186.Google Scholar
144. See Brownlie, I., The Rule of Law in International Affairs (The Hague, Nijhoff 1998) pp. 21–23.Google Scholar
145. See generally Stein, J., ‘The Approach of the Different Drummer; The Principle of the Persistent Objector in International Law’, 26 Harv. ILJ (1985) p. 457 at p. 464.Google Scholar
146. The only exceptions are those reflected in Arts. 53 and 64 of the Vienna Convention on the Law of Treaties.
147. In legal parlance these gaps are referred to as the non liquel. See R. Clark, Letters on the International Court of Justice, available on line at http://www-camlaw.rutgers.edu/faculty/occasional/2-clark.html.
148. The WTO Appellate Body has occasionally referred to the judgments of the ICJ and other international law concepts. See, for instance, the Bananas dispute (WT/DS27/R/ECU), where the Appellate Body made it a point to distinguish the South West Africa cases (ICJ Reports (1966) p. 47), the Barcelona Traction case (ICJ Reports (1970) p. 32) and the Mavromattis Palestine Concessions case (PCIJ 1925, Series A, No. 2, p. 12).
149. See Gray, , op. cit. n. 13, at pp. 1–47.Google Scholar
150. It is worth noting that punitive damages are not exactly restorative to the extent that they seek to inflict remorse on the author of an illegal act. They are usually significantly larger in quantum than the loss incurred by an injured party. In American law, there is also the curious element of treble damages under the Sherman Act, of 2 July 1890, ch. 647,26 Stat. 209 (codified at 15 USC sections 1–7 (1982)). Section 7 of the Sherman Act as originally enacted provided: ‘Any person who shall be injured in his business or property… by reason of anything forbidden … by this act, may sue therefor… without respect to the amount in controversy, and shall recover three fold the damages by him sustained, and the costs of suit, including a reasonable attorney's fee.’
151. For an excellent account of the evolution, structure and process of the Court, and its work and contributions in international dispute resolution see Rosenne, S., The World Court, 4th edn. (Dordrecht, Nijhoff 1989), Brownlie, op. cit. n. 144, at p. 122. and Gray, op. cit. n. 13, at ch. 2.Google Scholar
152. This extends to compulsory jurisdiction of the Court only. See generally Szafarz, R., The Compulsory Jurisdiction of the International Court of Justice (Dordrecht, Nijhoff 1993).Google Scholar
153. Brownlie, , op cit. n. 144, at pp. 122–123.Google Scholar Parties before the ICJ have generally avoided raising issues of competence in relation to forms of judicial relief, except in proceedings based on compromissory clauses. The Court (and its predecessor the PCIJ) has also taken a robust line when issues of competence have been the subject of argument. See, for instance, the Factory at Chorzow case, Jurisdiction, PCIJ, Series A, No. 9, p. 21. See further Gray, C. D., Judicial Remedies in International Law (Oxford, Clarendon Press 1987) pp. 59–64.Google Scholar
154. In the Northern Cameroons case, ICJ Reports (1963) pp. 36–37, the Court reaffirmed its competence t o make declaratory judgments. The Court has been requested for declaratory judgments in Certain Phosphate Lands in Nauru (Nauru v. Australia), ICJ Reports (1992) p. 240; Anglo-Norwegian Fisheries case, ICJ Reports (1951) p. 143; The Temple of Preah Vihear (merits), ICJ Reports (1962) p. 36 and in The Nuclear Tests case (Australia v. France), ICJ Reports (1974) p. 63 at p. 319.
155. See Brownlie, , op. cit. n. 144, at p. 131.Google Scholar It is doubtful whether this is a separate category any more that claims for damages. This order was made in the Temple of Preah Vihear case (supra n. 154), The Tehran Hostages case, ICJ Reports (1980) pp. 44–45; and the Nicaragua case, ICJ Reports (1986) p. 149. Whether such orders are made depends closely on the nature of requests of the parties.
156. In the award on Rainbow Warrior, for example, the arbitrator fixed the amount of compensation at $7 million US dollars which clearly exceeded by a wide margin the (non-quantified) damage. See Rainbow Warrior, 82 ILR p. 499 (arbitral decision of 30 April 1990).
157. UNGA Doc. A/CN.4/L.528/Add. 2, 16 July 1996
158. Shaw, M., International Law, 4th edn. (Cambridge, Cambridge University Press 1997) pp. 93–95.Google Scholar
159. The 1996 draft on state responsibility is available on line at International Law Commission website: http://www.un.org/law/ilc/reports/1996/96repfra.htm.
160. Ibid.
161. Ibid., p. 94.
162. Ibid.
163. The ILC began its study of state responsibility in 1955 following a request by the UN General Assembly in its resolution 799(VIII) of 7 December 1953.
164. Art. 41 ILC Draft reads: ‘A state whose conduct constitutes an internationally wrongful act having a continuing character is under obligation to cease that conduct, without prejudice to the responsibility it has already incurred.’
165. Art. 42(1) ILC Draft reads: ‘The injured state is entitled to obtain from the state which has committed an internationally wrongful act full reparation in the form of restitution in kind, compensation, satisfaction and assurances and guarantees of non-repetition, either singly or in combination.’
166. See Art. 54 ILC Draft.
167. Art. 22(2) ILC Draft.
168. Art. 42 ILC Draft.
169. Ibid.
170. Art. 43(c) ILC Draft.
171. Art. 44(1) ILC draft which reads: ‘The injured state is entitled to obtain from the state which has committed an internationally wrongful act compensation for damage caused by the act, if and to the extent that the damage is no made good by restitution in kind.’
172. See the Chorzow Factories judgment, Permanent Court of International Justice, PCIJ, Series A, No. 8, p. 12.
173. Art. 42.
174. Ibid.
175. See Understanding Regarding Notification, Consultation, Dispute Settlement and Surveillance, Agreed upon in the Tokyo Round, 28 November 1979 (L/4907) para. 10, GATT BISD (26th Supp.) (1980) p. 210.
176. See generally Bello, J. H., ‘Settling Disputes in the GATT: The Past, Present and Future’, 24 International Law (1990) p. 519.Google Scholar
177. See generally Homer, A. F., ‘GATT Dispute Settlement Agreement: Internationalization or Elimination of Section 3011’, 26 International Law (1992) p. 795.Google Scholar
178. Dispute Settlement Understanding Art. 21, para. 3.
179. Ibid., para. 3(a)-(c).
180. Ibid.
181. Ibid.
182. Ibid., para. 3(a)-(b).
183. Ibid., para. 3(a)-(c).
184. Ibid., para. 6.
185. Ibid., para. 3(b)-(c).
186. See Dillon, T. J. Jr., ‘The World Trade Organization: A New Legal Order for World Trade?’, 16 Mich. JIL (1995) p. 387 (discussing retaliation and cross retaliation procedure under the Dispute Settlement Understanding)Google Scholar
187. Ibid.
188. For a good discussion on the advantages of international trade, see Samuelson, P. A. and Nordhaus, W. D., Economics, 12th edn. (New York, McGraw-Hill 1985) pp. 831–856.Google ScholarPubMed
189. See Montana, i Mora, loc. cit. n. 69, at p. 128.Google Scholar
190. Ibid.
191. Art. 19 of the DSU
192. Ibid.
193. Art. 22(1) of the DSU
194. Ibid.
195. Preamble to the Marrakesh Agreement Establishing the World Trade Organization, in The Results of the Uruguay Round of Multilateral Trade Negotiations: The Legal Texts (Geneva, GATT Secretariat 1994) p. 6.Google Scholar
196. In particular, Art. XVIII, Part IV and the ‘Enabling Clause’ introduced in 1979. The first allows flexibility in the use of trade measures to protect infant industries and in the use of quantitative import restrictions to alleviate balance of payment difficulties. The second covers the principles and objectives of the GATT with regard to developing countries. It encourages developed countries to improve access to their markets and states that developing countries are not expected to reciprocate trade barrier reductions commitments made by developed countries. The enabling clause (Decision on Differential and More Favorable Treatment, Reciprocity and Fuller Participation of Developing Countries, 28 November 1979 (L/490)), permits preferential treatment to be given to and exchanged among developing countries, subject to stated conditions. It also authorizes especially favorable treatment for least-developed countries.
197. The exception is the Plurilateral Trade Agreements in Annex 4.
198. See Ministerial Decisions and Declarations, 15 April 1994, 1994 WL 761488 (G.A.T.T.). Para. 1 states: ‘Decide that, if not already provided for in the instruments negotiated in the course of the Uruguay Round, notwithstanding their acceptance of these instruments, the least developed countries, and for so long as they remain in that category, while complying with the general rules set out in the aforesaid instruments, will only be required to undertake commitments and concessions to the extent consistent with their individual development, financial and trade needs, or their administrative and institutional capabilities. The least-developed countries shall be given additional time of one year from 15 April 1994 to submit their schedules as required in Article XI of the Agreement Establishing the World Trade Organization.’ Para. 2(v) goes on to state: ‘Least-developed countries shall be accorded substantially increased technical assistance in the development, strengthening and diversification of their production and export bases including those of services, as well as in trade promotion, to enable them to maximize the benefits from liberalized access to markets.’
199. See generally WTO Secretariat, Guide to the Uruguay Round Agreements (The Hague, Kluwer Law International 1999).Google Scholar
200. Art. 3(12) of the DSU.
201. Art. 4(10) of the DSU.
202. Art. 8(10) of the DSU.
203. Ibid.
204. Art. 12(10) of the DSU.
205. Ibid.
206. Ibid.
207. Art. 24(2) of the DSU.
208. The Marrakesh Agreement Establishing the World Trade Organization, in The Results of the Uruguay Round of Multilateral Trade Negotiations: The Legal Texts (Geneva, GATT Secretariat 1994) p. 6.Google Scholar
209. Para. 2(v) Marrakesh Agreement.
210. Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS p. 331 (entered into force 27 January 1980), reprinted in 8 ILM (1969) p. 679 and 63 AJIL (1969) p. 875.
211. See African Growth and Opportunity Act, H.R. 1432, 105th Cong. (Washington, US Government Printing Office 1997);Google Scholar see also African Growth and Opportunity Act, H.R. 434, 106th Cong. (Washington, US Government Printing Office 1999)Google Scholar. And see African Growth and Opportunity Act: Hearings Before the Senate Comm. on Finance, 105th Cong. (Washington, US Government Printing Office 1998) p. 2, available in 1998 WL 325460 (statement of Madeleine K. Albright, Secretary of State) (announcing that ‘we [the United States] undertake the most fundamental change in our policy towards Africa since the independence movement blossomed on that continent four decades ago’).Google Scholar See Clark, H. R., ‘African “Renaissance” and U.S. Trade Policy’, 27 Ga. J Int'l & Comp. L (1999) p. 265.Google Scholar
212. See ACP-EEC Convention, 28 February 1975, 14 ILM (1915) p. 596 (generally referred to as Lomé I); Second ACP-EEC Convention, 31 October 1979, 1277 UNTS p. 3 (generally referred to as Lomé II); Third ACP-EEC Convention, 8 December 1984, 24 ILM (1985) p. 571 (generally referred to as Lomé III); Fourth ACP-EEC Convention, 1 December 1989,29 ILM (1990) p. 783 (generally referred to as Lomé IV). The Lomé Conventions govern development issues such as trade cooperation, technical assistance, the stabilization of export earnings, and aid. For details, see Lister, M., The European Community and the Developing World (Aldershot, Avebury 1988).Google Scholar
213. Out of these total, Tanzania takes about $50 US million dollars, Kenya about $40 US million dollars and Uganda about $60 US million dollars.
214. See Wachira, A., ‘European Union Bans Fish Imports from Cholera Struck Eastern Africa’, The Lancet, 16 January 1998. Available on line at http://www.plant.uogelph.ca/safefood/archives/fsnet.txt (visited on 21 January 2001).Google Scholar
215. As was indicated by Bernard, Ryelandt, the EU representative in Kampala, Uganda, ‘frozen and processed fish products will be allowed in but will have to be tested on arrival in Europe at the expense of the exporters’.Google Scholar See ibid.
216. See ‘United Nations Development Program’, The Monthly Review, March-April 1998, available on line at http://www.africa.upenn.edu/eve_we/hoa0398.htm (visited on 21 January 2001).
217. See Joseph, Mwamunyange, ‘Now EU lifts Ban on Tanzania’, The East African, Monday 20 December 1999. The writer quotes the remarks of Fred Musika, the Minister of State for Fisheries, Agriculture and Animal Husbandry in Uganda.Google Scholar
218. See Cliff, B., Europe Bans Uganda Fish over Cholera, available on the world wide web as a circulating news item at http://www.ee/lists/infoterra/1998/01/0007.html (visited on 21 January 2001).Google Scholar
219. See Henderson, C., ‘Fish Poisoning in East Africa’, Daily Nation, Kenya 15 April 1999, available on line at http://library.kcchawaii.edu/praise/news/eh19.html (visited on 21 January 2000).Google Scholar
220. Ibid.
221. Ibid.
222. Ibid. There had been a number of people who disputed the reports saying that there were no instances of fish poisoning. A spokesperson of Asat Beach Fishermen Group in the lakeside town of Kisumu was quoted as saying that ‘there has not been fish poisoning in Nyanza Gulf, but we will fight those who are trying to introduce it. Our policy is to sell clean fish to Kenyans and the buyers in Europe.’
223. Ibid.
224. Ibid.
225. Ibid.
226. Many of these concerns were raised in the Kenyan parliament by representatives from those regions that border the Lake Victoria mainly Nyanza and Western provinces.
227. Agreement on the Application of Sanitary and Phytosanitary Measures, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1 A, World Trade Organization, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations (Cambridge, Cambridge University Press 1999) pp. 59–72 (hereinafter: SPS Agreement).Google Scholar
228. See SPS Agreement, supra n. 227, Art. 2.
229. Ibid., Art. 2(1), 2(2).
230. Ibid., Art. 2(3).
231. Ibid.
232. Ibid., Art. 3(1).
233. Ibid., Art. 3(2).
234. Ibid., Art. 3(3). The SPS Agreement also includes a footnote to that effect: ‘For the purposes of paragraph 3 of Article 3, there is a scientific justification if, on the basis of an examination and evaluation of available scientific information in conformity with the relevant provisions of this Agreement, a Member determines that the relevant international standards, guidelines or recommendations are not sufficient to achieve its appropriate level of sanitary or phytosanitary protection.’
See the SPS Agreement, supra n. 227, Art. 3(3), fn. 2. This footnote has been interpreted as meaning that measures that deviate from international standards are acceptable if based on a risk assessment, if they meet the requirements of Art. 5, which includes the requirement of a risk assessment. Ibid., Art. 5(1). In reality, Art. 3 promotes harmonization with international standards, and Art. 5 allows countries to escape the straitjacket of international standards, provided that an assessment of risks is the first step in setting such stricter SPS measures. See generally Victor, D.G., ‘The Sanitary and Phytosanitary Agreement of The World Trade Organization: An Assessment after Five Years’, 32 NY J Int'l L & Politics (2000) p. 865.Google Scholar
235. See Victor, , loc. cit. n. 234, at p. 876.Google Scholar
236. SPS Agreement, supra n. 227, Art. 3(3).
237. Ibid., Art. 2(2).
238. Ibid., Art. 5. For the link between Art. 3(3) and Art. 5, see Art. 3(3) itself, which specifically cites Art. 5 as a justification for deviation from international standards. For a statement on the need to examine Art. 5 in order to interpret the basic rights and obligations enumerated in Art. 2, see EC Measures Concerning Meat and Meat Products (Hormones), Report of the Appellate Body, P 180, WTO Docs. WT/DS26/AB/R and WT/DS48/AB/R (16 January 1998), available at http://www.wto.org, which argues that ‘Articles 2.2 and 5.1 should constantly be read together. Article 2.2 informs Article 5.1: the elements that define the basic obligation set out in Article 2.2 impart meaning to Article 5.1.’ In addition, the same report notes that Art. 2(3) must be read together with Art. 5(5).
239. See Ibid., Art. 5(4).
240. Ibid., Art. 5(5).
241. Ibid., Art. 5(6). A footnote to Art. 5(6) declares that a measure would be inconsistent with Art. 5(6) if an alternative is found that passes each of three tests: (a) it is ‘reasonably available’, (b) it achieves the member's appropriate level of SPS protection, and (c) it is ‘significantly less restrictive to trade’ than the SPS measure contested.
242. See generally Australia: Measures Affecting Importation of Salmon, Report of the Panel, pp. 61–130, WTO Doc. WT/DS18/R (12 June 1998), at http://www.wto.org, and see Australia: Measures Affecting Importation of Salmon, Report of the Appellate Body, WTO Doc. WT/DS18/AB/R (20 October 1998), available at http://www.wto.org. See also Australia: Measures Affecting Importation of Salmon, Arbitration Under Article 21.3(c) of the Understanding on Rules and Procedures Governing the Settlement of Disputes, WTO Doc. WT/DS 18/9 (23 February 1999).
243. See Ibid. The Office International des Epizooties (OIE) listed two of these diseases in the International Aquatic Animal Health Code category of fish diseases that are particularly dangerous threats for spreading. Such transmissible diseases ‘are considered to be of socio-economic and/or public health importance within countries and that are significant in the international trade of aquatic animals and aquatic animal products’. The OIE also listed four of the diseases in a category of fish diseases that are less well understood but potentially dangerous. For diseases on either list, the OIE Guidelines for Risk Assessment require countries o t undertake analysis to examine the disease risks associated with the importation and to tailor particular import controls to the real world situations in the country. The remaining diseases were not listed by OIE and thus no special OIE guidelines were applicable. (The OIE is an intergovernmental body established in 1924 with the purpose of protecting animal health. As of September 2000, 155 countries were members of the OIE. See list of member countries, at http://www.oie.int/overview/a_paysm.htm. The office serves as the umbrella for numerous commissions that prepare codes, protection strategies, and manuals.)
244. See Ibid.
245. See Ibid.
246. See Ibid.
247. Australia had allowed imports of frozen herring bait fish and live ornamental fish that could much more easily transmit many of the 24 diseases into Australian waters.
248. See Australian Salmon, Appellate Report, supra n. 242, at pp. 135–136. See also the SPS Agreement, supra n. 227, Arts. 2(2), 5(1). In deciding against Australia, the Appellate Body established a ‘three-pronged’ test for what would qualify as a risk assessment: (1) identification of the diseases and possible biological and economic consequences of their entry or spreading; (2) evaluation of the likelihood of entry, establishment, or spreading; and (3) evaluation of the impact of SPS measures on the likelihood of entry, establishment, or spreading of the diseases. These three criteria are based on Art. 5(1) and the definitions in Annex A, p. 4, of the SPS Agreement. Australia's 1996 Final Report, which established the ban on imports of fresh and frozen salmon, met the first requirement. But the Appellate Body said that Australia had failed to meet the other two requirements. This finding overturned the panel, which had ruled that the 1996 Final Report did constitute a ‘risk assessment’. See Victor, loc.cit. n. 234, at p. 906.
249. See Australian Salmon, Appellate Report, supra n. 242, at p. 177; Australian Salmon, Panel Report, supra n. 242, p. 8.160. By allowing imports of bait and ornamental fish, Australia exposed itself to greater risk than if it had permitted salmon imports. Not treating these comparable risks in comparable ways revealed that the salmon import ban was a disguised restriction on trade.
250. See Australian Salmon, Panel Report, supra n. 242, at pp. 8.161–183. Heat treatment, in effect, barred Canadian salmon from a lucrative segment of the market because heat treatment by definition converted fresh or fresh-frozen fish into less valuable heat-treated fish. Moreover, some experts consulted by the Panel suggested that heat treatment might actually raise the disease risks because elevated temperatures were not high enough to kill all pathogens and could cause some to grow more rapidly. See Ibid., p. 4.220.
251. See generally Bhagwati, J., ‘Aggressive Unilateralism: An Overview’, in Bhagwati, J. and Patrick, H., eds., Aggressive Unilateralism: America's Trade Policy and the World Trading System (Ann Arbor, MI, University of Michigan Press 1990).Google Scholar
252. For a good discussion of retaliation see generally Hokman, B. and Mavroidis, P., Enforcing Multilateral Commitments: Dispute Settlement and Developing Countries, a paper prepared for the WTO/World Bank Conference on Developing Countries in a Millenium Round, 20–21 September 1999. (On file with the author.)Google Scholar
253. Ibid. However Hudec has noted correctly that this remedy is rarely required in enforcing multilateral dispute settlement decisions. See Hudec, op. cit. n. 23.
254. Supra n. 252, at p. 7
255. Ibid.
256. Ibid.
257. Trade sanctions mean raising of tariffs against imports from the targeted country; those increased tariffs hurt the economy of the complaining country's businesses and consumers who would otherwise import those products, just as surely as they hurt the offending country's companies that export them.
258. Art. 22(1) of the DSU.