This is Rob Howse's Typepad Profile.
Join Typepad and start following Rob Howse's activity
Join Now!
Already a member? Sign In
Rob Howse
Recent Activity
Dear Armand, you have clearly been taking your own advice to other trade lawyers and not following this case. The EU ban poses no obstacle to the ability of the Canadian Inuit to export what is left over from their subsistence hunt into European markets. The exception in the EU ban for indigenous products is crystal clear-it is non-discriminatory and it does not contain any unusual or burdensome conditions that would make it impractical for the Inuit to export to the EU. The point of my post is not to oppose the subsidy program that the Canadian government hid until the conclusion of the Appellate Body hearings but that this program represents an admission that contrary to what Canada had been telling the WTO dispute settlement organs, there is no inherent difficulty with the Canadian Inuit exporting seal products, which would make it somehow inherently un-evenhanded to exempt indigenous products, since only Greenland indigenous people have the intrinsic POSSIBILITY of using the exception. Canada has in the past chosen to subsidize heavily the commercial non-indigenous hunt while until recently doing little to facilitate export promotion of indigenous seal products. That is a policy choice of Canada. It is not a choice of the EU. Your suggestion that the Canadian Inuit are in a difficult situation because of the EU ban suggests that prior to the ban the Canadian Inuit were earning significant revenue from selling their products into the EU. While the Canadian government has managed to get Inuit leaders to attack the ban, how difficult is that given the level of dependency of these communities on the federal government in all kinds of ways? In the WTO proceedings the panel never made a finding of fact of this kind. Nor was there any evidence of this sort on the record, as far as I could see. Indeed there is evidence that the Nunavut government itself recognized the underlying challenge not as the EU ban but one of market demand generally. It is also revealing that while towing the federal government line Inuit leaders did not make a submission of their own before the panel, nor did Canadian take the risk of calling as a witness any from the Inuit community involved in the hunt. Contrary to what you imply the EU ban has not benefited the Greenland Inuit industry. They oppose the ban and attribute a significant decline in their own exports to its broader impacts. In Canada's tale were true about how the ban give its indigenous exception affects competitive opportunities, the Greenland industry should love it because they would be gaining as European consumers shifted from banned Canadian commercial seal products to permitted Greenland indigenous ones. But the reality is entirely different as what Canada would lead us to believe. But your mention of Denmark and the EU Council raises one the fundamental flaws with the panel's determination of an MFN violation in respect of the indigenous exception-the panel's complete failure to analyze whether Greenland should be treated as a non-EU country for purposes of WTO law. Sent from my iPad
1 reply
Dear Simon, this is exactly what happens when one ignores the structure and text of Article XX and the division of labor that follows from it, as understood by the AB in for example US-Shrimp: the chapeau concerns the application of the measure whereas the tests for "fit" within each paragraph of Article XX are addressed to its design, structure etc.
1 reply
Dear Julia (and Lorand), Let's for a moment separate the question of whether the distinction between the design, structure etc. of a member's measure and its application is to be understood formalistically or not from the question of whether the distinction makes sense at all in terms of understanding the respective roles of the chapeau and the operative paragraphs of Article XX. I believe that some meaning has to be given to the word "applied" in the chapeau, but of course that meaning need not produce an entirely formalistic test for what is a measure and what is the application of the measure. Nevertheless the distinction make sense. With respect to the design, structure, etc of the measure itself, in the case of most of the paragraphs of Article XX, we test for whether it has features that are arbitrary and unjustiable in their trade effects by examining the "necessity" of its trade restrictiveness. How could a measure itself properly be found to be not unnecessarily trade restrictive and still constitute arbitrary or unjustifiable discrimination? In the case of Article XX (g), while the world "necessary" is not present, there is an explicit evenhandedness test within XX (g). It should be recalled that, in US-Shrimp the Appellate Body (rightly in my view) specified that one must examine the measure first under one of the paragraphs of Article XX, and then apply the chapeau. This sequencing means that measures that are arbitrarily or unjustifiably restrictive in their trade effects will not be provisionally justified. Only once the measure itself passes, will there then be the question of whether, even if provisionally justified, the way it is applied the violates the quite specific evenhandness test in the chapeau. I see some analogy here also to the distinction between "as such" claims (where violation is claimed to stem from the design, structure etc of the measure) and cases where the violation comes from the exercise of discretion in its application. Sent from my iPad
1 reply
Yes, glad you agree! Sorry I got so misled by the references to subsidies-slightly jet-lagged in Buenos Aires. Sent via BlackBerry from T-Mobile
1 reply
Yes, glad you agree! Sorry I got so misled by the references to subsidies-slightly jet-lagged in Buenos Aires. Sent via BlackBerry from T-Mobile
1 reply
Good. Understood! Of course that is right -subject to the continuing permissibility of course of self-help through CVD AD actions. Sent via BlackBerry from T-Mobile
1 reply
Also, Marc, the policies that determine the size of the Canadian commercial industry are not just direct and indirect subsidies but also the quota for the hunt and the licensing of sealers. Amities, Rob Sent from my iPad On Mar 21, 2014, at 8:33 AM, Rob Howse <howserob@gmail.com> wrote: I am not sure how to understand the relevance of this. I think Canada's subsidization of the commercial sealing industry but not the indigenous sealing industry is only of concern here because it relates to the source of the treatment less favourable being complained of by Canada-the proportion of the Cdn industry that can use the indigenous exception, being the creation in large part of Canada's own policies. I don't think of this as a defense of the EU because it rather goes to what is the meaning of treatment less favourable. Can a neutral measure without any element of de jure discrimination be treatment less favourable just because the complaining government has chosen to determine the structure of the market such that it has a larger percentage of production or economic actors that can take advantage of the measure than is the case with some other country or the regulating country? This seems to me to be a very different question than the one you raise about subsidies wars, but am I missing something, Marc? Sent from my iPad
1 reply
I am not sure how to understand the relevance of this. I think Canada's subsidization of the commercial sealing industry but not the indigenous sealing industry is only of concern here because it relates to the source of the treatment less favourable being complained of by Canada-the proportion of the Cdn industry that can use the indigenous exception, being the creation in large part of Canada's own policies. I don't think of this as a defense of the EU because it rather goes to what is the meaning of treatment less favourable. Can a neutral measure without any element of de jure discrimination be treatment less favourable just because the complaining government has chosen to determine the structure of the market such that it has a larger percentage of production or economic actors that can take advantage of the measure than is the case with some other country or the regulating country? This seems to me to be a very different question than the one you raise about subsidies wars, but am I missing something, Marc? Sent from my iPad
1 reply
The link will work when the debate starts at 530 pm Florence time. Sent via BlackBerry from T-Mobile
1 reply
Please re-read carefully my posts. I am not suggesting that the G-33 proposal be accepted as the permanent agreement on food security.Instead I advocate for a broader "framework agreement" that would lead to a more ambitious permanent accord down the road.This would include issues such as export restrictions. Concepts of food justice and food sovereignty need to be considered, as well as sustainable agriculture.These are the kinds of issues that ought to have been discussed for the last years at the WTO, not the leftovers from the previous century's agenda. Your suggestion that nothing in the WTO "prevents" governments from being able to provide food assistance to the poor is, I believe, wrong as there are limits to food aid that arise from the agriculture rules. I suppose your claim amounts to the old economic textbook canard that in the abstract or imaginary world there is always some efficient or non-distorting policy to achieve whatever legitimate objective.But governments have to be able to address the real world concerns of their citizens in an environment of price instability, taking political constraints as they are rather than imaging a Platonic utopia.And this is where flexibility and policy space matter a lot. Sent from my iPad
1 reply
I will be blogging on this over the next day or two, but on the indigenous exception the panel narrowly focused its finding of violation, it seems, on what it considered as evidence that the exception was being applied so as to allow products on the market from what was in the case of Greenland in fact a commercial hunt (contrary to the purported purpose of the indigenous exception of exempting only traditional non-commercial indigenous hunting. This is a very fact-specific finding, which does not undermine the bona fides of an indigenous exception as such.
1 reply
I don't think the existing legal framework addresses the global commons dimensions adequately. It needs to be evolved through a better understanding of the right to food, through FAO principles, and through WTO principles. Thus, in my post I suggested that a permanent framework on food security should deal e.g. with export restrictions, which also have important implications for the commons. In the mean time, what India is doing to protect its own population is not unreasonable. Waivers are not that unusual. And the very existence of this avenue suggests a flexibility that your comments imply is inconsistent with the very character of the WTO legal system. Or have I misread you here? Sent via BlackBerry from T-Mobile
1 reply
Yes, a similar report in the Business Standard this am. See my twitter account @howserob Best, Rob Sent via BlackBerry from T-Mobile
1 reply
I think it is entirely plausible to invoke 18.4 in the circumstances.Another reason why India would be ill-advised to capitulate to the peace clause.
1 reply
Dear Debra, I am of course aware of this interpretation of the Appellate Body, and do not think that it is a correct or coherent one, as I have written somewhere I believe. But in any case the AB has also frequently said that the correct interpretation of certain words in one provision is not necessarily the correct interpretation of those same words in a different provision (not to mention an entirely different treaty). Part of the reason that the AB read those words as it did in Soft Drinks was the systemic consideration that the interpretation Mexico was urging would, in effect, require the AB to make a determination of whether there was a violation of another international agreement, the NAFTA, over which it did not really have jurisdiction. I believe there was a different way of solving that, and a better way, but the fact is that this consideration, irrelevant to NAFTA 1802, was fundamental to their reading. It was a view of "fragmentation". But also XX(d) of the GATT has a totally different operational effect (an exception to obligations) than 1801 and 1802 of NAFTA. Finally, as I never cease to point out, in Ch. 18 of NAFTA where the parties meant "domestic" they said "domestic" explicitly. best, Rob
1 reply
Since this exchange I have communicated with several informed persons about the degree of finality of what has so far been "agreed" between Canada and the EU. I haven't gotten consistent and in some cases not clear answers. This seems like a Catch 22 as lack of transparency itself would appear to frustrate the proper operation of the transparency provisions of the NAFTA. In general, I would certainly agree that there needs to be a significant measure of finality for something to be characterized as a measure that a party proposes to adopt. Yet, considering the object and purpose of the transparency obligations, and the fact that the development of major proposed legal and regulatory regimes is often an iterative process, I also cannot accept that the a party could use the fact that a proposal is subject to some revision as a blanket excuse for no transparency. On Wed, Nov 6, 2013 at 9:37 AM, <howserob@gmail.com> wrote: If this the state of affairs-i.e. Substantive changes are still being made to the legal text then I would agree with you. If it is mere correction or rectification then I am not sure. Sent via BlackBerry from T-Mobile
1 reply
Lorand, I think you have posed the issue with greater precision than I did in my original post. But could you expand on the distinction between N & I of benefits and "damage" on the other. I'm not sure I grasp it. Is this connected to the distinction between primary and secondary obligations in some way? thanks, Rob Sent from my iPad
1 reply
It is not the mere omission that is dispositive. It is that in this particular case the omission in 1802 is contrasted by the use of the explicit qualifier "domestic" elsewhere in Ch. 18. You dismiss this by the mere assertion that "domestic" is descriptive and tautological when it does appear in 1802. But it is you yourself who are being tautological, because it is only "descriptive and tautological" if one buys your argument that in the first place "law" does not include international law. Besides as the Appellate Body has indicated many times, a treaty interpreter is not entitled to assume that words in a treaty are meaningless or without normative effect.
1 reply
If this the state of affairs-i.e. Substantive changes are still being made to the legal text then I would agree with you. If it is mere correction or rectification then I am not sure. Sent via BlackBerry from T-Mobile
1 reply
You seem to suggest that there is not a final legal text of the treaty that Canada proposes to adopt. I however have been assuming that the agreement is a final legal text that the parties have agreed to propose to the competent internal authorities for adoption (ratification etc.). We should each check our facts. Sent via BlackBerry from T-Mobile
1 reply
I think it is abundantly clear from inter alia ICJ Statute 38, the VCLT, and the ILC Articles of state responsibility perhaps too that a treaty is "law". Again, I come back to the fundamental fact that in some places Ch 18 DOES refer to domestic laws or procedures but 1802 doesn't contain that qualification. Obviously the drafters turned their minds to the possibility that the expression law or procedure in Ch 18 could be read to include more than domestic measures, as in some cases they used the qualification "domestic". BUT NOT in 1802. I don't think I can make this point any more clearly. Sent via BlackBerry from T-Mobile
1 reply
You need to read BOTH 1801 and 1802 together. 1802 applies to the measures described in 1801 when they are PROPOSED for adoption, i.e. BEFORE they are in force. Sent via BlackBerry from T-Mobile
1 reply
A treaty is clearly "law". See my response to Debra Stager. In ch 18 sometimes the parties wanted their obligations to be limited to domestic measures. In those cases they used the qualifier "domestic". No such qualifying wording applies to the use of "law" in 1802. Sent via BlackBerry from T-Mobile
1 reply
1802 applies to laws inter alia a party proposes to adopt, not just those that are already "ratified, accepted and implemented"-this is the advance of the NAFTA over the transparency obligations in GATT Article X. Are you suggesting, Debra, that the Harper government is not "proposing to adopt" CETA? You are also I think mistaken when you add the word "domestic" to the operative provision of 1802. It does not appear there. In the case of other provisions of Chapter 18 where the parties did seek to limit the obligation to "domestic" laws or procedures, they explicitly added the qualifier "domestic". This shows that the obligations of 1802 are not limited to "domestic" laws, etc. that a party "proposes to adopt."
1 reply