¹ At the time of writing, the following matters had been notified: DS412 Canada – Certain Measures Affecting the Renewable Energy Generation Sector (complainant Japan); DS419 China – Measures Concerning Wind Power Equipment (complainant United States); DS426 Canada – Measures Relating to the Feed-In Tariff Program (complainant European Union); DS443 European Union and a Member State – Certain Measures Concerning the Importation of Biodiesels (complainant Argentina); DS452 European Union and Certain Member States – Certain Measures Affecting the Renewable Energy Generation Sector (complainant China); DS456 India – Certain Measures Relating to Solar Cells and Solar Modules (complainant United States); DS459 European Union – Certain Measures on the Importation and Marketing of Biodiesel and Measures Supporting the Biodiesel Industry (complainant Argentina); DS473 European Union – Antidumping Measures on Biodiesel from Argentina (complainant Argentina); DS476 European Union and its Member States – Certain Measures Relating to the Energy Sector (complainant Russia). As well, several applications for antidumping and countervailing duties are underway in domestic procedures. See Meyer, Timothy “Energy Subsidies and the World Trade Organization” (2013) 17(22) Am Soc Int’l L Insights 1.Google Scholar

² Agreement Establishing the World Trade Organization, 1867 UNTS 154 (1994), 33 ILM 1144 (in force 1 January 1995) [WTO Agreement].

³ The dispute over the feed-in tariff program in Ontario is the first one to make its way through the dispute settlement system. Canada – Certain Measures Affecting the Renewable Energy Generation Sector, Doc WT/DS412/AB/R, Appellate Body Report (24 May 2013); Canada – Measures Relating to the Feed-In Tariff Program, Doc WT/DS426/AB/R, Appellate Body Report (24 May 2013) [Canada – Renewable Energy].

⁴ United States – Measures Affecting the Production and Sale of Clove Cigarettes, Doc WT/ DS406/AB/R, Appellate Body Report (24 April 2012) [US – Clove Cigarettes].

⁵ United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, Doc WT/DS381/AB/R, Appellate Body Report (13 June 2012) [US – Tuna II].

⁶ United States – Certain Country of Origin Labelling (COOL) Requirements, Doc WT/ DS384/AB/R, Appellate Body Report (23 July 2012) [US –COOL].

⁷ General Agreement on Tariffs and Trade, 55 UNTS 194, Can TS 1948 No 31 (in force 1 January 1948), now incorporated by reference into General Agreement on Tariffs and Trade 1994, 1867 UNTS 187 (in force 1 January 1995, art III:4), Annex 1A to the WTO Agreement, supra note 2 [GATT].

⁸ In Canada – Renewable Energy, supra note 3, electricity was treated as a good or product rather than a service, although Japan did not explicitly agree to this characterization. Panel Reports, Canada-Certain Measures Affecting the Renewable Energy Generation Sector, WT/DS412/R and Canada-Measures Relating to the Feed-In Tariff Program, WT/DS426/R at para 7.11, n 46 [Canada-Renewable Energy, Panel Report].

⁹ Canada – Renewable Energy, supra note 3.

¹⁰ Ibid at para 6.1(b)(iv); Canada – Renewable Energy, Panel Report, supra note 8 at para 7.166. The measure thereby also breached Article 2.1 of the Agreement on Trade-Related Investment Measures, as it was a trade-related investment measure “that is inconsistent with the provisions of Article III… of GATT.” Agreement on Trade-Related Investment Measures, 1868 UNTS 186 (in force 1 January 1995) at art 2.1.

¹¹ Canada – Renewable Energy, supra note 3 at para 5.79.

¹² United States – Restrictions on Imports of Tuna, Doc DS21/R, GATT Panel Report (3 September 1991), BISD 39S/155, 30 ILM 1594 (1991) at para 5.27 [unadopted] [US Tuna I]. See further United States – Restrictions on Imports of Tuna, Doc DS29/R, GATT Panel Report (16 June 1994), 33 ILM 839 (1994) [unadopted].

¹³ Agreement on Technical Barriers to Trade, 1868 UNTS 120 (in force 1 January 1995) [TBT Agreement].

¹⁴ US – Tuna II, supra note 5 at paras 242, 302. The other legitimate objective was to ensure that consumers were not misled by deceptive labelling about fishing methods.

¹⁵ Ibid at para 297. See also ibid at para 407(d). The use of regulatory distinctions in the interpretation of Article 2.1 of the TBT Agreement, supra note 13, is discussed more fully later in this article.

¹⁶ US – Tuna II, supra note 5 at paras 335, 338. The Appellate Body reversed a Panel finding of breach of Article 2.2 of the TBT Agreement because the Panel had incorrectly assessed Mexico’s argument over a less restrictive alternative measure. Due to a lack of evidence, the Appellate Body did not rule on whether there was a breach of Article 2.2. In 2001, the Appellate Body found that a distinction based on production and processing methods was justified pursuant to GATT Article XX. United States – Import Prohibition of Certain Shrimp and Shrimp Products, Recourse to Article 21.5 of the DSU by Malaysia, Doc WT/DS58/AB/RW, Appellate Body Report (21 November 2001).

¹⁷ This possibility has been hinted at by Green, Andrew “Climate Change, Regulatory Policy and the WTO: How Constraining Are Trade Rules?” (2005) 8(1) J Int’l Econ L 143 at 160.CrossRefGoogle Scholar

¹⁸ Canada – Renewable Energy, supra note 3 at para 5.63, n 523.

¹⁹ Agreement on Subsidies and Countervailing Measures, 1869 UNTS 14 (in force 1 January 1995), art 1.1(b) [SCM Agreement].

²⁰ Canada – Renewable Energy, supra note 3 at paras 5.175–5.178.

²¹ US – Tuna I, supra note 12.

²² See Canada – Renewable Energy, Panel Report, supra note 8 at para 7.66. Hypothetically, there might have been a possibility of generating facilities in some contiguous area of the United States wishing to connect to the Ontario transmission grid, but it appears that this argument was not raised by the United States in its third party submissions. Ibid, Annex B-11 (Integrated Executive Summary of the United States). Canada has reported that the Ontario government issued a ministerial directive that removed large-capacity projects from the content requirement for equipment and lowered the requirement for smaller projects. As well, the province is proceeding with a statutory change that will permit procurement of electricity under the feed-in tariff free from the requirement. Canada – Certain Measures Affecting the Renewable Energy Generation Sector, Doc WT/DS412/17/Add.1, Status Report by Canada (14 March 2014); Canada – Measures Relating to the Feed-In Tariff Program, Doc WT/DS426/17/Add.1, Status Report by Canada (14 March 2014).

²³ Canada – Renewable Energy, supra note 3 at para 5.67. For Canada’s arguments, see Kessel, Alan H “Canadian Practice in International Law at the Department of Foreign Affairs and International Trade in 2010–11” (2011) 49 Can YB Int’l L 381 at 413–17Google Scholar. The arguments of the United States are summarized in Canada– Renewable Energy, Panel Report, supra note 8, Annex B-11 (Integrated Executive Summary of the United States).

²⁴ Canada – Renewable Energy, supra note 3 at para 5.68, n 514.

²⁵ Ibid at para 5.71.

²⁶ Ontario’s electricity system operated as a hybrid system, in which public and private entities were involved in generation, transmission, distribution, and retailing. Electricity was sold to retail consumers by a provincial government agency, by local distribution companies (including public municipal utilities), and by some licensed private sector retailers. Canada – Renewable Energy, Panel Report, supra note 8 at paras 7.22, 7.25, 7.35, 7.57. For a survey of Canadian provincial electricity policies, see Valiante, Marcia “A Greener Grid? Canadian Policies for Renewable Power and Prospects for a National Sustainable Electricity Strategy” (2013) 25 J Envtl L Prac 41.Google Scholar

²⁷ GATT, supra note 7, art XX(b), (g).

²⁸ For thorough analysis of arguments supporting an aim-and-effects test in the determination of like products, see Qin, Julia Ya “Defining Nondiscrimination under the Law of the World Trade Organization” (2005) 23 Boston U Int’l LJ 215 Google Scholar. Qin would also use the reference to “discrimination between countries where the same conditions prevail” in the introductory paragraph of GATT Article XX to support extended consideration of regulatory purpose for analysis of exemptions under this article. I am grateful to Chios Carmody for remarks on this issue.

²⁹ GATT Working Party, Border Tax Adjustments, Doc L/3464 (2 December 1970), BISD 18S/97 at para 18.

³⁰ US – Clove Cigarettes, supra note 4 at paras 112–13.

³¹ An aim-and-effects test had been rejected earlier in Japan – Taxes on Alcoholic Beverages, Docs WT/DS8/AB/R, WT/DS10/AB/R, WT/DS/11/AB/R, Appellate Body Report (1 November 1996).

³² US – Clove Cigarettes, supra note 4 at para 137.

³³ Ibid at para 119. For detailed analysis, see Zhou, Weihuan “US-Clove Cigarettes and US-Tuna II (Mexico) Implications for the Role of Regulatory Purpose under Article III:4 of the GATT” (2012) 15(4) J Int’l Econ L 1075.CrossRefGoogle Scholar

³⁴ Howse, Robert and the Renewable Energy and International Law (REIL) Project, “World Trade Law and Renewable Energy: The Case of Non-tariff Measures” (2006) 6 J Eur Envtl Planning L 500 at 504.CrossRefGoogle Scholar

³⁵ James Flett has argued in favour of an “aim-and-effects” test for the review of the treatment standard required in trade agreements and also in investment agreements, which often lack an exemption clause. See Flett, James “WTO Space for National Regulation: Requiem for a Diagonal Vector Test” (2013) 16(1)J Int’l Econ L 37 CrossRefGoogle Scholar. A major hurdle for the analysis is the one identified of respect for differing treaty texts. As investment agreements are updated, more may be modified to include specific exemption clauses.

³⁶ European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, Doc WT/DS135/AB/R, Appellate Body Report (5 April 2001) at para 122. The decision can also be explained by the physical differences between asbestos fibres and the polychloryl vinyl fibres suggested as domestic like products. Zhou, supra note 33 at 1084; Irish, Maureen “Global Public Policy and the World Trade Organization after Shrimp/Turtle and Asbestos” (2004) 42 Can YB Int’l L 253 at 307–9.Google Scholar

³⁷ Canada – Renewable Energy, supra note 3 at para 5.177.

³⁸ In US – COOL, supra note 6, Canada argued unsuccessfully that the purpose of the US requirement for detailed records on where cattle were born, raised, and slaughtered was trade protectionism rather than the provision of information to consumers (at para 354). The panel had relied on evidence of a social norm that consumers want information on the origin of products (at para 441). While the Appellate Body was unsupportive of the panel’s reference to social norms to identify legitimate objectives (at para 448), it upheld the panel determination that the objective of the US measure to provide consumer information was legitimate (at para 453).

³⁹ See Du, Michael Ming “The Rise of National Regulatory Autonomy in the GATT/ WTO Regime” (2011) 14(3) J Int’l Econ L 639 at 656–64Google Scholar; Tarasofsky, Richard G “Heating Up International Trade Law: Challenges and Opportunities Posed by Efforts to Combat Climate Change” (2008) 1 Carbon & Climate L Rev 7 at 9 Google Scholar; Green, supra note 17 at 164–66.

⁴⁰ US – Tuna II, supra note 5 at para 225.

⁴¹ US – Clove Cigarettes, supra note 4 at para 174. The idea that a detrimental impact must be due exclusively to a legitimate regulatory distinction might be considered as establishing a test that differs from the requirement in the introductory paragraph of GATT Article XX that measures not constitute arbitrary or unjustifiable discrimination between countries where the same conditions prevail. Zhou argues that the two tests are not that far apart, since they would both depend on the reasonable availability of alternate less discriminatory means. Zhou, supra note 33 at 1120.

⁴² It is not clear what effect the interpretation of “treatment no less favourable” in US – Clove Cigarettes, supra note 4, will have on interpretation of the same phrase in GATT Article III:4. Since the GATT context is different and includes the specific exemptions of GATT Article XX, there may be no need to consider legitimate objectives directly at the stage of a GATT Article III analysis. There could be a possible linkage to a consideration of purpose in the identification of like products, as outlined earlier. Another issue that will undoubtedly be explored in future WTO jurisprudence is how the US – Clove Cigarettes interpretation of Article 2.1 will relate to the legitimate objectives listed in Article 2.2 of the TBT Agreement. In US – COOL, supra note 6, for example, if the Appellate Body had completed the Article 2.2 analysis and determined that the obstacle to trade was justified by the objective of providing consumer information, would it still have been able to find that the same measure breached Article 2.1 because the information demanded was disproportionate to the same objective? Will a proportionality analysis be used for both Articles 2.1 and 2.2 ?

⁴³ Benoit, Charles “Picking Tariff Winners: Non-Product Related PPMs and DSB Interpretations of ‘Unconditionally’ within Article I:1” (2010–11) 42 Geo J Int’l L 583.Google Scholar

⁴⁴ Pauwelyn, Joost “U.S. Federal Climate Policy and Competitiveness Concerns: The Limits and Options of International Trade Law,” Working Paper, Nicholas Institute for Environmental Policy Solutions, Duke University, April 2007, online: ˂http://www.nicholas.duke.edu/institute˃ at 18.Google Scholar

⁴⁵ GATT Working Party, Border Tax Adjustments, Doc L/3464 (2 December 1970), BISD 18S/97 at para 15: “taxes occultes.” The French version of GATT Article II:2 (a) refers to “ une marchandise qui a été incorporée dans l’article importé” seeming to require that the product tax be on components that have been incorporated into the imported goods, which does not describe greenhouse gases (GHGs) emitted during production. See Low, Patrick, Marceau, Gabrielle, and Reinaud, Julia “The Interface between the Trade and Climate Change Regimes: Scoping the Issue,” Centre for Trade and Economic Integration (paper prepared for the conference on Climate Change, Trade and Competitiveness: Issues for the WTO held on 16-18 June 2010), Doc ERSD-2011–1, online: ˂http://www.wto. org/english/res_e/reser_e/ersd201101_e.pdf˃ at 8–10 Google Scholar; Pauwelyn, supra note 44 at 20.

⁴⁶ SCM Agreement, supra note 19, Annex II, n 61.

⁴⁷ Maruyama, Warren H “Climate Change and the WTO: Cap and Trade versus Carbon Tax?” (2011) 45(4) J World Trade 679 Google Scholar; McIsaac, Christine “Opening a GATE to Reduced Global Emissions: Getting over and into the WTO” (2010) 44(5) J World Trade 1053.Google Scholar

⁴⁸ McLure, Charles E Jr, “The GATT Legality of Border Adjustments for Carbon Taxes and the Cost of Emission Permits: A Riddle, Wrapped in a Mystery, Inside an Enigma” (2011) 11 Florida Tax Rev 221.Google Scholar

⁴⁹ Pauwelyn, supra note 44; Veel, Paul-Erik “Carbon Tariffs and the WTO: An Evaluation of Feasible Policies” (2009) 12(3) J Int’l Econ L 749 at 771–75Google Scholar; Brink, Ryan Vanden “Competitiveness Border Adjustments in US Climate Change Proposals Violate GATT: Suggestions to Utilize GATT’s Environmental Exceptions” (2010) 21 Colo J Int’l Envtl L Pol’y 85.Google Scholar

⁵⁰ A counter-argument is that trade in the emission certificates can be detached from goods and classified as a service subject to the General Agreement on Trade in Services, 1869 UNTS 183 (in force 1January 1995) [GATS], but not to provisions that relate to products. Classification will depend on the details of any particular measure and, probably, on the availability of secondary markets in emission certificates. A measure could also be subject to rules under the GATT, the TBT Agreement, and the GATS. If the GATS applies exclusively, then any national treatment requirement would depend on whether a commitment had been made under Article XVI of the GATS. The exemption clauses would be GATS Articles XIV and XIVbis; and subsidies would be governed by GATS Article XV rather than the SCM Agreement, supra note 19. See generally Howse and REIL Project, supra note 34, for the argument that the GATS has wide application to energy trade; Vranes, Erich “Climate Change and the WTO: EU Emission Trading and the WTO Disciplines on Trade in Goods, Services and Investment Protection” (2009) 43(4) J World Trade 707 Google Scholar. Note that GATS Article XIV does not include an exemption for measures relating to conservation of exhaustible natural resources. Meltzer, Joshua “Climate Change and Trade: The EU Aviation Directive and the WTO” (2012) 15(1) J Int’l Econ L 111 at 150.CrossRefGoogle Scholar

⁵¹ Subsidies for bio-fuels such as ethanol may be subject to obligations in the WTO Agreement on Agriculture, 1867 UNTS 410 (in force 1 January 1995), a topic not addressed in this article. See Farah, Paolo D and Cima, Elena “Energy Trade and the WTO: Implications for Renewable Energy and the OPEC Cartel” (2013) 16(3) J Int’l Econ L 707 at 716.CrossRefGoogle Scholar

⁵² SCM Agreement, supra note 19, arts 1–2, 8.1.

⁵³ Ibid, arts 5–7, 15.

⁵⁴ Ibid, art 3.

⁵⁵ For analysis, see Howse, Robert “Climate Mitigation Subsidies and the WTO Legal Framework: A Policy Analysis” (May 2010), International Institute for Sustainable Development, online: ˂http://www.iisd.org˃ at 8–16 Google Scholar; Howse and REIL Project, supra note 34 at 51–14.

⁵⁶ Prohibited subsidies are presumed to be specific. SCM Agreement, supra note 19, art 2.3.

⁵⁷ For a discussion of whether climate change subsidies could be specific, see Forcese, Craig “The Kyoto Rift: Trade Law Implications of Canada’s Kyoto Implementation Strategy in an Era of Canadian-US Environmental Divergence” in Kennedy, Kevin ed, The First Decade of NAFTA: The Future of Free Trade in North America (Ardsley, NY: Transnational, 2004) 393 at 402–8.Google Scholar

⁵⁸ Canada – Renewable Energy, supra note 3 at para 5.178.

⁵⁹ Ibid at para 5.185.

⁶⁰ Ibid at para 5.186.

⁶¹ Ibid at para 5.187.

⁶² See generally Epps, Tracey and Green, Andrew Reconciling Trade and Climate: How the WTO Can Help Address Climate Change (Cheltenham, UK: Edward Elgar, 2010) at 103–21.CrossRefGoogle Scholar

⁶³ For discussion, see Howse, supra note 55 at 17–19; Condon, Bradly J “Climate Change and Unresolved Issues in WTO Law” (2009) 12(4) J Int’l Econ L 895 at 903–4Google Scholar; Rubini, Luca “Ain’t Wastin’ Time No More: Subsidies for Renewable Energy, the SCM Agreement, Policy Space and Law Reform” (2012) 15(2) J Int’l Econ L 525 at 559–70Google Scholar; Cosbey, Aaron and Mavroidis, Petros C “A Turquoise Mess: Green Subsidies, Blue Industrial Policy and Renewable Energy: The Case for Redrafting the Subsidies Agreement of the WTO” (2014) 17(1) J Int’l Econ L 11 CrossRefGoogle Scholar; Pal, Rajib “Has the Appellate Body’s Decision in Canada – Renewable Energy / Canada – Feed-In Tariff Program Opened the Door for Production Subsidies?” (2014) 17(1) J Int’l Econ L 125 CrossRefGoogle Scholar; Shadikhodjaev, Sherzod “First WTO Judicial Review of Climate Change Subsidy Issues” (2013) 107(4) Am J Int’l L 864 Google Scholar. Farah and Cima, supra note 51 at 727, argue that the SCM Agreement is lex specialis and that the GATT provisions continue to apply as lex generalis.

⁶⁴ WTO Agreement, supra note 2; United Nations Framework Convention on Climate Change, 1771 UNTS 107 (in force 21 March 1994) [UNFCCC].

⁶⁵ SCM Agreement, supra note 19, art 8.

⁶⁶ Special Import Measures Act, RSC 1985, c S-15, s 30.4(3).

⁶⁷ Remedies within the SCM Agreement, supra note 19, arts 4, 7, 9, would theoretically remain open.

⁶⁸ Brazil – Measures Affecting Imports of Retreaded Tyres, Doc WT/DS332/AB/R, Appellate Body Report (17 December 2007) at para 151. See Condon, supra note 63 at 914.

⁶⁹ “Recognizing that their relations in the field of trade and economic endeavour should be conducted with a view to… expanding the production of and trade in goods and services, while allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent their respective needs and concerns at different levels of economic development.” WTO Agreement, supra note 2, preamble, para 1.

⁷⁰ The UNFCCC, supra note 64, currently has 196 parties. For more information, see ˂http://unfccc.int˃.

⁷¹ Kyoto Protocol to the United Nations Framework Convention on Climate Change, 37 ILM 22 (1998) (in force 16 February 2005) [KyotoProtocol]. The second commitment period runs from 2013 to 2020. Report of the Conference of the Parties Serving as the Meeting of the Parties to the Kyoto Protocol on Its Eighth Session, held in Doha from 26 November to 8 December 2012, Doc FCCC/KP/CMP/2012/13/Add.1, Decision1/CMP.8 (2012).

⁷² Report of the Conference of the Parties on Its Sixteenth Session Held in Cancun from 29 November to 10 December 2010, Doc FCCC/CP/2010/7/Add.1, Decision 1/CP.16 (2010) at paras 48–52 (affirming on this point the earlier Copenhagen Agreement that was noted but not adopted by the Conference of the Parties in 2009). Report of the Conference of the Parties on Its Fifteenth Session, Held in Copenhagen from 7 to 19 December 2009, Doc FCCC/CP/2009/n/Add.1, Decision 2/CP.15 (2009). At the meeting in Durban in 2011, the Conference of the Parties decided to negotiate a new “protocol, another legal instrument or an agreed outcome with legal force under the Convention” by 2015, to take effect in 2020. Report of the Conference of the Parties on Its Seventeenth Session Held in Durban from 28 November to 11 December 2011, Doc FCCC/CP/2011/9/Add.1, Decision 1/CP.17 (2011) at para 2.

⁷³ There would likely be a strong argument that any tax or other burden would have to involve a calibrated measure. See US – Tuna II, supra note 5 at para 297.

⁷⁴ See Hertel, Michael “Climate-Change-Related Trade Measures and Article XX: Defining Discrimination in Light of the Principle of Common but Differentiated Responsibilities” (2011) 45(3) J World Trade 653 at 677 Google Scholar: “The crux of CBDR is that discrimination results where countries in which different conditions prevail are treated the same& This approach would require unilateral trade measures to be ’graded’ in accordance with countries’ mitigation responsibilities ... to be a permissible use of coercion and compliant with the chapeau’”

⁷⁵ Morosini, Fabio “Trade and Climate Change: Unveiling the Principle of Common but Differentiated Responsibilities from the WTO Agreements” (2010) 42 Geo Wash Int’l L Rev 713.Google Scholar

⁷⁶ O’Brien, Julia “The Equity of Levelling the Playing Field in the Climate Change Context” (2009) 43(5) J World Trade 1093 at 1110 Google Scholar. As O’Brien argues, the same issue can affect the interpretation of GATT Article III as applied to the border adjustment: “Unless an exporting country could be expected to reduce its carbon emissions to an equal degree as the importing country, a carbon tax that charged imported goods the equivalent of what they would have had to pay if they had been produced domestically would amount to placing an inequitable tax burden on producers in the exporting country and may thus be inconsistent with the second sentence of Article III(2).” Ibid at 1108–9.

⁷⁷ It has been argued that such discounting would also be required for adjustments to be acceptable under Article II. See Pauwelyn, supra note 44 at 21–22; McLure, supra note 48 at 285–87. In addition, free allowances for exporters could be seen as illegal export subsidies. Maruyama, supra note 47.

⁷⁸ Vanden Brink, supra note 49.

⁷⁹ WTO Agreement, supra note 2, preamble.

⁸⁰ Saint-Geniès, Géraud de Lassus “Les piliers économique et environnemental du développement durable: conciliation ou soutien mutuel? L’éclairage apporté par la Cour internationale de Justice dans V Affaire des Usines de pâte à papier sur le fleuve Uruguay (Argentine c Uruguay)” (2010) 48 Can YB Int’l L 151.Google Scholar

⁸¹ WTO Ministerial Declaration, Doc WT/MIN(01)/DEC/1 (20 November 2001) at para 31.

⁸² Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment, [2010] ICJ Rep 14, reflecting the decision in Case Concerning the Gabctkovo-Nagymaros Project (Hungary v Slovakia), [1997] ICJ Rep 78.

⁸³ See Sands, Philippe Principles of International Environmental Law, 2nd edition (Cambridge: Cambridge University Press, 2003) at 148.CrossRefGoogle Scholar

⁸⁴ WTO Agreement, supra note 2, preamble.

⁸⁵ Johannesburg Declaration on Sustainable Development, Annex to Resolution 1, Report of the World Summit on Sustainable Development, UN Doc A/CONF.199/20 (26 August-4 September 2002) at para 5. A possible fourth pillar is cultural protection. See Guèvremont, Véronique “La reconnaissance du pilier culturel du développement durable: vers un nouveau mode de diffusion des valeurs culturelles au sein de l’ordre juridique mondial” (2012) 50 Can YB Int’l L 163.Google Scholar

⁸⁶ Vienna Convention on the Law of Treaties, 1155 UNTS 331, Can TS 1980 No 37 (in force 27 January 1980) [VCLT].

⁸⁷ O’Brien, supra note 76.

⁸⁸ Hertel, supra note 74.

⁸⁹ Understanding on Rules and Procedures Governing the Settlement of Disputes, 1869 UNTS 401, 33 ILM 1226 (1994) (in force 1 January 1995) [DSU].

⁹⁰ See United States – Standards for Reformulated and Conventional Gasoline, Doc WT/ DS2/AB/R, Appellate Body Report (20 May 1996) at 16; Japan – Taxes on Alcoholic Beverages, Docs WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, Appellate Body Report (1 November 1996) at 9–12.

⁹¹ European Communities – Measures Affecting the Approval and Marketing of Biotech Products, Doc WT/DS291-293/R, Report of the Panel (21 November 2006) at para 7.68 [EC – Biotech]. Note that not all parties in the case were members of the treaties in question. See Epps and Green, supra note 62 at 226; Delimatsis, Panagiotis “The Fragmentation of International Trade Law” (2011) 45(1) J World Trade 87 Google Scholar, discussing (at 114) the Appellate Body’s view in European Communities – Customs Classification of Frozen Boneless Chicken Cuts that the Harmonized System (HS) constitutes context for interpretation of the WTO agreements under Article 31(2)(a) of the VCLT due to a consensus among GATT contracting parties to use the HS as a basis for their WTO tariff schedules, despite the fact that not all members are parties to the HS. European Communities – Customs Classification of Frozen Boneless Chicken Cuts, Docs WT/DS269/AB/R and WT/DS286/AB/R, Appellate Body Report (27 September 2005) at para 199; International Convention on the Harmonized Commodity Description and Coding System, with Protocol of Amendment,1503 UNTS 167, Can TS 1988 No 38 (in force 1 January 1988) [HS]. Prior to the EC – Biotech decision, Joost Pauwelyn canvassed arguments both for and against a requirement of common membership for purposes of application of Article 31(3)(c) of the VCLT. Pauwelyn, Joost Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (Cambridge, MA: Cambridge University Press, 2003) at 253–63CrossRefGoogle Scholar. The opposing positions were argued by the European Union and the United States in European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft. The Appellate Body rejected the view of EC-Biotech, but did not completely resolve the issue. European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, Doc WT/DS316/AB/R (1June 2011) at paras 80–82, 310–13, 839–55.

⁹² International Law Commission (ILC), Fragmentation of International Law: Difficulties Arisingfrom the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission (finalized by Martti Koskenniemi), UN Doc A/CN.4/L.682 (13 April 2006) at para 450 [ILC Study Group Report].

⁹³ Ibid at para 470.

⁹⁴ Ibid at para 472.

⁹⁵ McLachlan, Campbell “The Principle of Systemic Integration and Article 31(3) (c) of the Vienna Convention” (2005) 54 ICLQ 279 at 291–93CrossRefGoogle Scholar; Tzevelekos, Vassilis P “The Use of Article 31(3)( of the VCLT in the Case Law of the ECtHR: An Effective Anti-Fragmentation Tool or a Selective Loophole for the Reinforcement of Human Rights Teleology? Between Evolution and Systemic Integration” (2009–10) 31 Mich J Int’l L 621 at 634.Google Scholar See further McGrady, Benn “Fragmentation of International Law or ‘Systemic Integration’ of Treaty Regimes: EC – Biotech Products and the Proper Interpretation of Article 31(3)(c) of the Vienna Convention on the Law of Treaties” (2008) 42(4) J World Trade 589 at 597.Google Scholar

⁹⁶ ILC Study Group Report, supra note 92 at paras 479–80.

⁹⁷ McGrady, supra note 95 at 607–8.

⁹⁸ ILC Study Group Report, supra note 92 at paras 277, 412.

⁹⁹ de Lassus Saint-Geniès, supra note 80 at 173–75.

¹⁰⁰ McGrady, Benn “Necessity Exceptions in WTO Law: Retreaded Tyres, Regulatory Purpose and Cumulative Regulatory Measures” (2009) 12(1) J Int’l Econ L 153 at 170–71Google Scholar, referring to United States – Tax Treatment for “Foreign Sales Corporations” – Recourse to Article 21.5 of the DSUby the EC, Doc WT/DS108/AB/RW, Appellate Body Report (20 January 2002), and United States – Import Prohibition of Certain Shrimp and Shrimp Products, Doc WT/DS58/AB/R, Appellate Body Report (6 November 1998).

¹⁰¹ See McLachlan, supra note 95 at 315; Pauwelyn, supra note 91 at 262.

¹⁰² For the suggestion that the non-actionable category of subsidies in the SCM Agreement, supra note 19, should be revived for climate change measures, see Steger, Debra P “The Subsidies and Countervailing Measures Agreement: Ahead of Its Time or Time for Reform?” (2010) 44(4) J World Trade 779 at 795.Google Scholar

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¹⁰⁴ Pauwelyn, supra note 91 at 81–86. Article 1.1 of the DSU, supra note 89, confirms that the dispute settlement mechanism applies to disputes brought pursuant to the WTO agreements.

¹⁰⁵ Pauwelyn, supra note 103 at 559-65. The ILC study group agrees with this distinction between jurisdiction and applicable law. ILC Study Group Report, supra note 92 at para 45.

¹⁰⁶ Bartels, Lorand “Applicable Law in WTO Dispute Settlement Proceedings” (2001) 35(3) J World Trade 499.CrossRefGoogle Scholar

¹⁰⁷ Delimatsis, supra note 91; O’Brien, supra note 76; Hertel, supra note 74; Mitchell, Andrew D Legal Principles in WTO Disputes (Cambridge: Cambridge University Press, 2008) at 96 CrossRefGoogle Scholar. The Appellate Body in Chile – Taxes on Alcoholic Beverages considered Articles 3.2 and 19.2 of the DSU, holding that proper interpretation of WTO provisions would neither add to nor diminish rights and obligations. Chile – Taxes on Alcoholic Beverages, Docs WT/DS87/AB/R and WT/DS110/AB/R, Appellate Body Report (12 January 2000) at para 79.

¹⁰⁸ Trachtman, Joel ’Book Review of Conflict of Norms in Public International Law by Joost Pauwelyn’ (2004) 98 Am J Int’l L 855 at 858.CrossRefGoogle Scholar

¹⁰⁹ Ibid at 858–59.

¹¹⁰ Pauwelyn, supra note 91 at 73.

¹¹¹ Ibid at 52–56.

¹¹² VCLT, supra note 86, art 41(1)(b)(i)-(ii). Suspension of a multilateral treaty by a subset of the parties is subject to the same conditions, pursuant to Article 58 of the VCLT.

¹¹³ Carmody, Chios “WTO Obligations As Collective” (2006) 17(2) EurJ Int’l L 419.Google Scholar

¹¹⁴ See further Marceau, Gabrielle “Conflicts of Norms and Conflicts ofJurisdictions: The Relationship between the WTO Agreement and MEAs and Other Treaties” (2001) 35(6) J World Trade 1081 at 1104–5.CrossRefGoogle Scholar If all parties to the subsequent agreement are content with its application, there will be no disputes filed among them, of course. Problems would arise if differing interpretations develop or if outside parties decide to bring complaints.

¹¹⁵ Custom may, of course, be wider as well. In the context of the security exception under GATT Article XXI, see Irish, Maureen “Trade, Border Security, and Development” in Lee, Yong-Shik et al, eds, Law and Development Perspective on International Trade Law (Cambridge, MA: Cambridge University Press, 2011) 81.CrossRefGoogle Scholar

¹¹⁶ See further Pauwelyn, Joost “How to Win a World Trade Organization Dispute Based on Non-World Trade Organization Law: Questions of Jurisdiction and Merits” (2003) 37(6) J World Trade 997.Google Scholar

¹¹⁷ Trachtman, supra note 108 at 857.

¹¹⁸ VCLT, supra note 86, arts 53, 64 (on peremptory norms); ILC Study Group Report, supra note 92 at paras 324–409.

¹¹⁹ Jenks, C Wilfred “The Conflict of Law-Making Treaties” (1953) 30 Brit YB Int’l L 401 at 426.Google Scholar

¹²⁰ Ibid.

¹²¹ Pauwelyn, supra note 91 at 166–74.

¹²² Ibid at 187–88.

¹²³ Ibid at 168. The wide view of a conflict is now part of WTO jurisprudence. The Panel in United States – Certain Measures Affecting Imports of Poultry from China refers to both the strict view of conflict arising “where… obligations are mutually exclusive in the sense that a Member cannot comply with both obligations at the same time” and the wider view “where a rule in one agreement prohibits what a rule in another agreement explicitly permits.” United States – Certain Measures Affecting Imports of Poultry from China, Doc WT/DS392/R, Panel Report (25 October 2010) at para 7.63, n 240, citing for the first view Turkey – Restrictions on Imports of Textile and Clothing Products, Doc WT/DS34/R, Panel Report (adopted with the Appellate Body Report, 19 November 1999) at para 9.92, and for the second view European Communities – Regime for the Importation, Sale and Distribution of Bananas, Doc WT/DS27/R, Panel Report ( adopted with Appellate Body Report25 September 1997) at para. 7.159. The Panel in US – Poultry from China decided that it was not dealing with a conflict but, rather, a question of the order in which it should address claims.

¹²⁴ ILC Study Group Report, supra note 92 at paras 36, 56–122.

¹²⁵ Jenks, supra note 119 at 446, quoting Hugo Grotius, De Jure Belli et Pacis, Book II, Cap VXI, s XXIX(1), translated by Kelsey, Francis W and reprinted in Scott, James Brown ed, The Classics of International Law, volume 2 (Oxford: Clarendon Press, 1925) at 428.Google Scholar See also ILC Study Group Report, supra note 92 at para 59.

¹²⁶ Ibid at para 118: “The example… was that of maritime carriage of hazardous substances. Depending on what the interpreter sees as the relevant consider-ation, the case comes under one or another set of rules as lex specialis: is the point of the law to advance trade, flag or coastal State jurisdiction, or environ-mental protection? None [of] these perspectives enjoys intrinsic priority over the others. This is why, in a hard case, a justifiable decision would have to take all of these into account.”

¹²⁷ Jenks, supra note 119 at 450.

¹²⁸ Lex specialis is not solely a priority rule, replacing one norm with another. It can operate to indicate the appropriate intensity of one norm in relation to another or to create partial carve-outs that leave more general provisions in place across a range of meanings. Legislative measures, after all, may have more than one purpose. As an interpretive technique, lex specialis can function as part of a general teleological approach. See further Marceau, supra note 114 at 1093.

¹²⁹ ILC Study Group Report, supra note 92 at para 493.

¹³⁰ Broude, Tomer “Principles of Normative Integration and the Allocation of International Authority: The WTO, the Vienna Convention on the Law of Treaties, and the Rio Declaration” (2008–09) 6(1) Loy U Chicago Int’l L Rev 173 Google Scholar; Cohen, Harlan Grant “Finding International Law, Part II: Our Fragmenting Legal Community” (2012) 44 NYUJ Int’l L & Pol 1049.Google Scholar

¹³¹ Chester Brown argues that international tribunals have inherent powers to deal with instances of parallel procedures, including powers to dismiss or suspend proceedings and power to enjoin parties from pursuing a parallel claim. Brown, Chester A Common Law of International Adjudication (Oxford: Oxford University Press, 2007) at 242–55.CrossRefGoogle Scholar