I am deeply disappointed in the WTO’s decision in the clove cigarette case, which has serious public health implications for United States efforts to reduce youth smoking.
The Family Smoking Prevention and Tobacco Control Act gave the FDA broad authority to protect the public’s health. It also directed immediate action to reduce youth tobacco use, including a ban on clove and candied-flavored cigarettes. Importantly, the law made no distinction in where a cigarette is manufactured because a cigarette -- no matter where it is made -- is addictive and deadly. I believe the WTO’s interpretation is wrong on the merits and wrong in its interference with our efforts to protect the American public from tobacco’s devastating effects.
I am committed to working with the Administration to advance our shared goal of ending the tobacco epidemic among our young people and ensuring that the U.S. ban on clove and candied-flavored cigarettes remains in place.
This is an encouraging sign that legislators may be heeding the call of thousands of Americans who have taken action under the Consumer Pledge urging principled non-compliance with the ruling.
We went over the main part of the decision – rendered by the Appellate Body’s three-person panel of Peter Van den Bossche (Belgium), Ricardo Ramirez-Hernandez (Mexico) and Shotaro Oshima (Japan) – in last week’s post. As we noted, this is the first time that the WTO has found a violation of the Agreement on Technical Barriers to Trade (TBT) Article 2.1.
But there was one major aspect of the ruling that we didn’t get to discuss: the finding that the U.S. violated TBT rules by having the sweet tobacco ban (enacted in July 2009) go into place on September 2009 rather than December 2009. In other words, the WTO found that the U.S. began fighting cancer three months too soon.
When Congress authorized U.S. membership in the WTO, it certainly it did not agree to establishment by dispute panels of new WTO rules to which the U.S. would be bound. This aspect of the ruling – empowering an unelected WTO body to create a norm of a six-month time lag between publication and entry into force of technical regulations to which U.S. negotiators have also not agreed – is extremely troubling. Nothing in the TBT text requires that.
At the crux of this issue is what kind of weight to accord to a “Decision on Implementation-related concerns and issues” made by trade ministers at the WTO’s November 2001 Doha Ministerial Conference. This obscure document has a very uncertain legal status. It’s definitely not a treaty or international agreement, which would have to be approved by Congress.
One could argue that it’s an official interpretation of WTO rules. It certainly reads like one. It states that TBT Article 2.12 (which reads in part "Members shall allow a reasonable interval between the publication of technical regulations and their entry into force in order to allow time for producers in exporting Members, and particularly in developing country Members, to adapt their products or methods of production to the requirements of the importing Member...") means that…
the phrase “reasonable interval” shall be understood to mean normally a period of not less than 6 months, except when this would be ineffective in fulfilling the legitimate objectives pursued. (paragraph 5.2)
However, the "decision" did not go through the correct channels to be an official interpretation (which are outlined in Article IX(2) of the Marrakesh Agreement Establishing the World Trade Organization.) In other words, Congress signed off on a specific means of clarifying WTO rules, and this “decision” didn’t follow them.
Nonetheless, in last week’s ruling, the WTO Appellate Body (AB) concluded that the "decision" imposes a binding obligation on WTO members. How?
The AB argued that the Vienna Convention on the Law of Treaties (VCLT) states that treaty interpreters shall take into account “any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions.” While a “subsequent agreement” in the WTO context would seem to be only an Article IX(2) interpretation, this Belgian-Mexican-Japanese panel used a passing mention by a previous AB panel that “multilateral interpretations adopted pursuant to Article IX:2 of the WTO Agreement are most akin to subsequent agreements within the meaning of Article 31(3)(a) of the Vienna Convention” to mean that other agreements “less akin” could still constitute “subsequent agreements.” (para 259-260)
The Belgian-Mexican-Japanese panel then noted another precedent that said that a subsequent agreement can also be “a further authentic element of interpretation,” defined as “agreements bearing specifically upon the interpretation of the treaty.” (para 265) Oshima and company then noted that the Doha “decision” was pretty darn specific as to Article 2.12 of the TBT, so it can get shoehorned into being a good-enough interpretation of WTO rules. (para 266)
This is a troubling line of logic. Countries realized that binding interpretations of WTO rules might be needed, and established procedures for producing them. However, Oshima et al opened up a backdoor for interpretation of WTO rules that countries never intended.
The AB seemed to realize it was playing in fire, and wrote, in another meaningless nod to sovereignty, that the Doha “decision” doesn’t “replace or override the terms” agreed to by national legislatures, but that it’s just “an interpretative clarification to be taken into account.” (para 269) This overly formal distinction is unlikely to calm many in Congress.
There were a few other comments that just added a little extra kick in the pants to sovereignty.
First, the AB notes the hedge word “normally” in the Doha “decision,” which the U.S. argued means that it’s not an iron bound rule. Selectively consulting dictionary definitions that relate to the word “norm,” the AB said that norms equal "rules." (para 273) "As a rule" is of course one synonym of "normally." But there are others, like "usually" or "ordinarily", which make clear that many times, the normal course of action will not be followed. These latter synonyms make it seem less binding than a rule, which I'm betting is what the delegates to the Doha Ministerial agreed had intended.
Second, the AB noted that, if the U.S. wants to go quicker than six months, the burden of proof is on the U.S. to show “that producers in Indonesia could have adapted to the requirements of [FSPTCA] within a three-month interval.” (para 292). This will also cause some consternation in Congress. Before they pass laws – hard enough in this climate, as anyone working on legislation knows – they have to do field work to see if producers in remote corners of the globe can adapt? Give me a break.
Finally, a bit of context is in order for the Doha “decision” itself.
First, the selection of Doha as a site for trade negotiations circa November 2001 – where civil society actions were severely restricted – seriously undermined the legitimacy of anything that was produced there. This is part of the reason why there were dozens of rallies and public events at other locations throughout the world. Moreover, anything trade-related coming just weeks after the confusion of 9-11 should probably be discounted, at a time when civil society and Congress were distracted from trade matters, at best.
Second, I asked around, and did a search on Thomas, Uncle Sam Google and trade nerd repository site Inside U.S. Trade, and could find no indication that this Doha “decision” was discussed at all back here before Congress.
So, if the Doha Decision was intended to put sand in the wheels of the legislative process, no one told the legislators. It's highly unlikely that any of them would have agreed to such shackles, as a norm, as a rule, or otherwise.