Nuestra investigación se basa en una serie de diálogos sobre políticas y en consultas realizadas por el ICTSD en los últimos quince años y en particular en estos últimos dos años, con ministros, formuladores de políticas y otros actores importantes de los países productores y exportadores de banano. Este trabajo llamó la atención del Ministerio de Coordinación de la Política Económica del Ecuador y constituye los fundamentos para el documento que se presenta a continuación. El Ministerio y el ICTSD facilitaron el diálogo entre el profesor Anania y diversos actores de la industria bananera nacional. Las discusiones con actores del sector privado y público llevaron a la reformulación de algunas de las preguntas principales y al descubrimiento de nuevas rutas de investigación. De esta manera, el profesor Anania ha sido capaz de abordar temas que aún no se han tratado en la literatura existente.

US Trade Representative Ron Kirk, speaking on Tuesday, insisted that he was optimistic that the three FTAs would be able to pass when Congress returns from its recess in September. “We believe we have a framework for an agreement that will allow us very quickly when Congress reconvenes in September to approve and have a vote on Trade Adjustment Assistance and allow us to move forward on the free trade agreements at the same time,” Kirk said.

Senate Minority Leader Mitch McConnell, a Republican, confirmed in a statement on 21 July that the trade pacts will likely wait until Congress is back in session in September. “We’ve got a lot of other urgent business to take care of around here. So I don’t expect to finish any of this before August. Still, I think the Administration should submit them anyway as a show of good faith with our trading allies in Korea, Colombia, and Panama. Then we can work to pass them when we return,” he said.

The Trade Adjustment Assistance (TAA) programme, which provides assistance to US workers displaced as a result of foreign competition, has been in place for several decades. An extension that, among other changes, added workers displaced by services competition to those covered under the programme, was passed in 2009; the extension, however, expired earlier this year.

The White House announced in May that it wanted the TAA extension to be reauthorized before the ratification of the three FTAs; many Democrats have since pushed for the worker aid programme to be attached to the FTA with Korea - the largest of the three - to ensure its passage. (See Bridges Weekly, 1 June 2011)

The free trade pacts, which are expected to bring a US$13 billion boost to US export revenue, struggled their way through the mock mark-up in committee earlier this month, with Republicans pushing against the inclusion of TAA in the same implementing legislation of one or all of the trade pacts (see Bridges Weekly, 6 July 2011)

While last week 12 Republican US Senators, led by Rob Portman of the US state of Ohio and Roy Blunt of Missouri, came forward to say that they would not oppose TAA - a move that would ease the passage of the bill in the Democrat-held Senate - the administration of US President Barack Obama has insisted on more specifics from leaders in both chambers of Congress.

On 27 July, House Ways and Means Chairman Dave Camp, a Republican, outlined for the first time a possible way forward for both the FTAs and TAA for when Congress is back in session in September. Speaking to the US Chamber of Commerce, Camp discussed a general agreement among congressional leaders that the worker aid programme would first pass in the Senate, after which Obama would send the trade pacts to Congress for ratification. The House would vote on the trade deals and TAA simultaneously, though as separate bills.

Talks between the White House and congressional leadership on how to proceed were still ongoing by the time Bridges Weekly went to press on 28 July, however.

Sallie James, a trade policy analyst at the Washington-based Cato Institute, a libertarian think tank, commented to Bridges that, should TAA be sent to Congress first and fail, it is difficult to predict what might happen. This uncertainty could explain part of the White House’s reticence to agree to compromise until knowing more specifics about the plan on a procedural level. The situation is further complicated by “both sides hav[ing] fairly entrenched positions on Trade Adjustment Assistance” that, to a degree, reflects their “ideological stance on trade.”

While the fight over TAA has dominated many of the headlines regarding the trade pacts, some critics find that the discussion is merely a distraction from some of the other issues at play. Lori Wallach, director of Public Citizen’s Global Trade Watch, described the worker aid controversy as a “tactical diversion.”

She commented to Bridges that many of the provisions in the FTAs are still a source of controversy among Democrats, such as concerns over labour standards with regards to the Colombia trade agreement and potential limits on financial services regulation. She added that, the closer it gets to the 2012 presidential election, the more difficult it will get to pass the agreements.

Debt talks continue to dominate Congressional agenda

The US national debt situation has provided an additional dimension to the talks, with Republicans unwilling to agree to spending money on the TAA extension in a time of fiscal difficulty. The debt talks have dominated talks in Washington over the past couple of weeks, making it difficult to move other legislation forward.

Obama has spent the last several weeks attempting to negotiate both a series of deficit reduction measures and a possible raising of the federal debt limit. Should the discussions fail to lead to a deal by 2 August, the US government may default on its debt - a result that some warn might lead to another global recession.

Credit rating agencies have cautioned that they might downgrade the United States’ famously strong triple-A sovereign credit rating, and some market analysts predict that this could occur that even if a deal is reached by the 2 August deadline.

James commented to Bridges that, in the current spending climate, given the level of spending that would be required to fund the TAA extension, “a lot of Republicans are questioning, in my mind quite rightly, the rationale of this programme” - i.e. why single out only those workers displaced by foreign competition for assistance. She noted that this question is key to the debate on TAA, though spending and efficiency are still key dimensions of the discussion.

James also noted that the political dynamic regarding these trade bills remains difficult, despite the repeated push to get these agreements ratified soon: “What does it say about Washington when they can’t pass these programs even when they agree on them?”

Growing EU-South Korea trade creating fear that US is falling behind

Frustration, meanwhile, is growing among the trade deals’ supporters over the delay, as Colombia, Korea, and Panama build their relationships with other trade partners. Korea’s FTA with the EU, which went into force on 1 July, has already caused double-digit growth in trade between the two countries within the first two weeks of its implementation, according to South Korean customs data.

Meanwhile, the leader of South Korea’s main opposition party is calling for a major overhaul of his country’s agreement with the US, according to the Wall Street Journal. Soh Kay-kyu, who chairs the opposition Democratic Party in South Korea, stressed that while his party does not disagree with the FTA overall, they would like to see some changes.

Among the changes that the opposition party would like to see are new Korean laws that would provide assistance to companies and individuals hurt by the trade deal’s effects- i.e. a Korean version of the worker aid programme that has caused such controversy in the US.

US Secretary of State Hillary Clinton, speaking at the US Chamber of Commerce in Hong Kong last week, pushed for the US-Korea FTA - the largest of the three - to move forward, noting that this trade deal “isn’t simply about who pays what tariffs at our borders. It is a deeper commitment to creating conditions to let both our nations prosper as our companies compete fairly.”

ICTSD reporting; “Deal or no deal? US downgrade looking likely,” ASSOCIATED PRESS, 27 July 2011; “Republicans clear way for worker aid, trade bills,” ASSOCIATED PRESS, 23 July 2011; “Camp Outlines Plan to Move Trade Pacts,” CONGRESSIONAL QUARTERLY, 27 July 2011; “Senate Republicans vow to break trade impasse; Dems not sold,” THE HILL, 22 July 2011; “Kirk hopes for September approval of trade deals,” REUTERS, 26 July 2011; “Republican senators won’t block US retraining bill,” REUTERS, 22 July 2011; “Korean Opposition Knocks U.S. Deal,” THE WALL STREET JOURNAL, 21 July 2011; “White House, Congress Creep Closer to Trade Deal,” WALL STREET JOURNAL, 28 July 2011; “Clinton terms Korea-US FTA ‘model agreement,’” YONHAP NEWS, 25 July 2011.

There is little doubt that the country’s banana industry would significantly benefit from Ecuador reaching a trade agreement with the EU similar to those agreed by Peru, Colombia and the Central American countries.

However, the political decision of signing a Free Trade Agreement (FTA) with the EU needs to be based on an assessment of the overall costs and benefits Ecuador will face.

The paper focuses on how a trade deal between Ecuador and the EU could impact trade in bananas as well as the competitiveness of the industry. This study should be of use to policy makers, negotiators and other stakeholders and we hope you find this a useful contribution to a sensitive, yet critical, discussion.

Ross Hornby, Canada’s ambassador to the EU, told a Brussels audience on Monday that the two sides had made “rapid progress” since starting talks in 2009, according to a report in TheParliament.com, a news service based in the EU capital.

Nevertheless, several sticking points remain, notably on government procurement, services, and intellectual property. The Montreal Gazette reported this week that a key difference on services is Canada’s support for a “negative list” approach to services liberalisation, under which markets would be opened to companies from the FTA partner in all sectors except those specifically excluded.  The EU favours a “positive list” that would identify all sectors and sub-sectors being liberalised; it believes this approach will give it more control over services that emerge or become more prominent in the future.

Varying degrees of enthusiasm from different Canadian provinces has affected the talks on opening up government procurement to companies from the other side of the Atlantic, according to the Vancouver Sun. It cited a business lobby group as saying that Western Canadian provinces were keener than Ontario and Quebec to open public procurement contracts to European companies.

Another point of contention in the negotiations is intellectual property protections resulting from the agreement, and their potential implications for drug prices. Canadian generic drug manufacturers warn that changes to Canadian drug patent protection similar to those sought by the EU under the prospective deal - extended periods of market exclusivity to offset time lost to regulatory delays, and longer protection periods for clinical test data - would increase drug prices, benefiting brand-name pharmaceutical companies (many of them European) at the expense of Canadian businesses and the country’s publicly funded healthcare system. Some Canadian business groups support similar changes in order to attract pharmaceutical investment to the country.

In Brussels, Canadian Ambassador Hornby was speaking an event to mark a November agreement between Ottawa and the EU that resolved a WTO dispute over beef trade, a longstanding irritant in bilateral trade relations.

The next round of negotiations between Canadian and EU officials is scheduled for April.

ICTSD reporting; “Statement from the Canadian Generic Pharmaceutical Association Regarding Canadian Chamber of Commerce Report on Intellectual Property in the Pharmaceutical Sector,” CNW GROUP, 19 January 2011; “Top Canadian official says FTA deal with the EU is imminent,” THE PARLIAMENT.COM, 24 January 2011; “Ont., Que. Concerns holding up EU trade talks, roundtable says,” THE VANCOUVER SUN, 14 January 2011; “EU nations reluctant to liberalize trade in services,” MONTREAL GAZETTE, 26 January 2011; “Canada needs tougher drug patent protection: report,” THE GLOBE AND MAIL, 19 January 2011.

The dense web of global trade regulation is complemented by other international regimes addressing issues as diverse as labour standards, trade in diamonds from conflict regions and trade in counterfeit products.  All these legal galaxies are criss-crossing outwards in the universe of international governance, leading to a possible loss of cohesion and an increased potential for collisions: conflicts of norms set out in substantive rules, or conflicts of jurisdiction between different courts and tribunals.

Potential Consequences of Conflict

If the proliferation of rules in international agreements leads to clashes between different regimes, and there is no clarity under international law, or the specific agreements in question, on how to solve such conflicts, the authority and effectiveness of the law are in danger of being undermined. If, moreover, the courts and tribunals created under the agreements are involved in clashes over the competence and scope of their jurisdiction, the authority and the effectiveness of both the law and the courts themselves will suffer. These are big ifs, and they may not come to pass. If they do, however, all the great strides forward in international trade and environmental law that have been made over the last quarter century risk being undermined.

When jurisdictions clash, the law of the strongest dispute settlement system prevails. Strength is measured in such cases primarily in terms of whether the system is compulsory and binding, as is the case of the WTO system.

Imagine, for example, that a regional trade agreement (RTA) contains norms that largely parallel WTO rules, but its provisions on the treatment of tradeable waste within national jurisdictions are more advanced and detailed. Suppose further that the RTA’s dispute settlement system is not fully compulsory, but all of its members belong to the WTO. Inevitably, tradeable waste cases will end up in the WTO with the consequence that the detailed rules laid down in the RTA will seldom be used and will atrophy.

In practice such problems seem to be most relevant to ‘second generation’ multilateral environmental agreements (MEAs), such as the Convention on Biological Diversity and its progeny (the biosafety protocol and the recent protocol on access and benefit-sharing), as well as the UN Framework Convention on Climate Change and its offspring (the Kyoto protocol). More traditional MEAs, such as the Basel Convention, seem to be safe from legal challenge.

Tools to Address the Problem

In principle, an extensive tool box is available to treaty-makers, as well as to courts and litigants to solve such conflicts. One important tool is provided by principles of treaty interpretation. It starts with the general assumption that if treaties allow various interpretations, the one most compatible with other international norms should be taken as one cannot assume that countries meant to enter into conflicting obligations.

Recent agreements include a concept that appears to reach even further: the principle of ‘mutual supportiveness’. Many of the treaties have preambular and/or substantial clauses that evoke mutual supportiveness between two or more agreements, which could be considered as conflicting, at least in policy terms.

Although ambiguity currently prevails over what ‘mutual supportiveness’ really means, it is a potentially useful principle that could promote balanced co-existence between the WTO and a large number of framework MEAs and other agreements. Without such a balance, the law of the strongest dispute settlement system risks working to the detriment of weaker agreements, potentially hurting sustainable development concerns that are traditionally less institutionally supported. Fortunately, there are no examples of this so far.

Closely linked with this principle are procedural rules available to courts when they determine their jurisdiction, i.e. their authority over a specific case. The application of the principle of mutual supportiveness between two agreements should lead to an outcome where a court ruling under Agreement A does not harm to the object and purpose of Agreement B.

This understanding is also a clear expression of procedural rules such as comity. This is the notion that, even in the absence of clear rules determining which court has jurisdiction in a particular international case, there are certain principles that should lead a court to cede jurisdiction to another tribunal rather than accept competing jurisdictions. In the Sellafield nuclear processing plant dispute between Ireland and the UK, the arbitral tribune referred inter alia to “considerations of mutual respect and comity which should prevail between judicial institutions” and recalled that “a procedure that might result in two conflicting decisions on the same issue would not be helpful to the resolution of the dispute between the parties.”

In the interest of the stability of international rule-making and governance, international courts and tribunals in neighbouring fields, like trade, investment, the environment, etc. need to develop a doctrine of ‘forum non conveniens’ between themselves, or at the very least use their inherent powers to abstain from exercising jurisdiction or rule on admissibility if there are serious reasons for doing so.

Pieter Kuijper teaches Law of International (Economic) Organisations at the University of Amsterdam. This article is based on his study Conflicting Rules and Clashing Courts: The Case of Environmental Agreements, Free Trade Agreements and the WTO, commissioned by ICTSD.

The reason behind the amendment negotiations was Washington’s need to obtain enough new concessions from Seoul to overcome persistent opposition from the US automobile and beef industries to the agreement concluded by the Bush administration in 2007.

The new deal allows the US to keep its 2.5-percent tariff on passenger cars in place until the fifth year of the treaty’s implementation, instead of eliminating it upon the treaty’s entry into force. Korea, which was to eliminate its 8-percent auto tariff immediately, will now halve it for the first four years, and fully eliminate it in the fifth year. Both countries will eliminate tariffs on electric cars within five years, half the period envisaged in the original agreement. The US also managed to delay the reduction of its 25-percent duty on trucks by eight years, but will still need to cut it to zero by the tenth year. South Korea will stand by its 2007 commitment to eliminate its 10-percent truck tariff as soon as the FTA takes effect. Seoul also consented to a special safeguard that will protect American car-makers against import surges for ten years after the full elimination of tariffs on Korean cars.

In a significant concession to Detroit car-makers, which have long complained that Korea’s safety and environmental standards unfairly impede imports, Seoul agreed to an annual quota of 250,000 cars per US manufacturer that will be considered safety-compliant if they meet US federal safety standards (rather than Korean ones). Similarly, under the 2010 agreement, US autos will be considered compliant with Korean fuel economy and greenhouse gas emissions standards (developed since the 2007 FTA) if they achieve targets within 19 percent of those in Korea’s new regulations. The 2010 agreement also gives US manufacturers at least a year to adjust to any new automotive regulation.

Korea Stands Firm on Beef, Obtains Generics Concession

While accommodating many of the key demands of the US car industry, Seoul drew the line on allowing in more beef from the United States. Korea will retain its current import ban on US beef from cattle less than 30 months old. Big riots, fuelled by fear of mad cow disease, occurred across the country when Seoul tentatively accepted US demands for broader market opening in an attempt to move the stalled treaty in 2008.

Seoul also negotiated a three-year postponement of the implementation of a provision under which authorities cannot grant marketing approval for a generic drug until any related patent challenges are resolved. Under the original agreement, the provision would have gone into effect after 18 months.

Bipartisan Support in US Contrasts with Stark Divisions in Seoul

In the US, the changes to the FTA won plaudits from leading lawmakers from both parties and a wide spectrum of industry groups, including former opponents of the accord, such as the United Autoworkers union and auto manufacturers GM and Ford.

A number of influential senators - including Republicans Orrin Hatch and Chuck Grassley, Independent Joe Lieberman, as well Democrats John Kerry and Maria Cantwell - have thrown their weight behind the renegotiated agreement, but not everyone is convinced. Sen. Max Baucus has expressed ‘deep disappointment’ over the lack of more access for US beef, and Sen. Sherrod Brown, an Ohio Democrat, has said he will not vote for the pact.

On the other side of the Pacific, the differences are much starker. While President Lee Myung-bak has forcefully defended the auto trade concessions as necessary to reap far greater long-term benefits, the Democratic Party - allied with four other opposition parties and supported by demonstrating farmers - has repeatedly vowed to combat what it terms as a ‘humiliating, under-the-table’ deal.

The EPA negotiations have been underway for nearly ten years now. Throughout this time, however, the world has kept on turning – not always in the right direction. Namely, in 2007 and 2008, the ACP countries, and indeed numerous countries the world over, were destabilised by what has been dubbed a “food crisis.”

During the second half of 2007, basic food products such as rice, wheat and milk were hit by price increases ranging from 50 percent to over 100 percent. For people who spend nearly all of their income purchasing food, such an increase is intolerable.

This crisis provides us with an opportunity to explore some critical questions. First, what is the true capacity of the Economic Partnership Agreements to serve as a “development tool”? And second, how could ACP countries have used the EPAs to better respond to the challenges posed by the food crisis?

What food crisis?

For this purpose, it is important to identify the causes of the food crisis and the ensuing policy responses.

Six major causes were suggested at the beginning of the explosion in agricultural prices in 2007-2008:

1. Increased demand for food products;
2. Decrease in food production (due notably to the deterioration of soils and unfavourable climatic conditions in major cereal-producing regions);
3. Abandonment of family farming in developing countries, notably following the dismantling of agricultural policies and public-sector support for agriculture (as a result of the structural adjustment policies enforced by international financial institutions);
4. Liberalisation of global agricultural trade;
5. Speculation on raw materials; and
6. Competition for scarce food products from agro-fuel producers.

To address these causes, countries’ responses can be grouped around five approaches.

1. Increase food supply by developing subsistence agriculture
Leaders in countries like Malawi, Mali and Senegal, among others, decided to promote subsistence agriculture over export agriculture in an effort to meet local food needs.

The EPAs in contrast, tend to promote agriculture exports. While such an aim is a typical goal of trade agreements generally, in the case of the EPAs it clashes with developing countries’ goal of producing agricultural subsistence products, not agricultural export products.

Furthermore, the investment liberalisation promised by the EPAs promotes the cultivation and export of bio-fuels, thereby threatening the availability of arable land for subsistence agriculture. The EU appears to be quite ambitious on this front: by 2020, the bloc aims to substitute 10 percent of fossil fuel consumption with energy from renewable sources. Agro-fuels are expected to play a huge role in that effort; this would be impossible to achieve without a massive boost in imports.

More liberal investment policies could handicap those states wishing to protect their land from foreign predators who are little inclined to focus on fulfilling local food needs.

2. Increase financial investment in agriculture
In 2003 in Maputo, the African States committed to allocate at least 10 percent of their national budgets to agriculture. The EPAs could, however, make states less inclined to actually carry this out.

Indeed, the budgetary restrictions following the opening up of borders under the EPA process led to a drop in the amount of resources available to support agriculture, which was already under-capitalised thanks to the crisis.

It is quite unlikely that this decrease in public-sector resources is to be compensated by increased growth stemming from trade liberalisation as officials had hoped. Indeed, the economic crisis means we can forget any such optimistic scenario; on the contrary, all we will probably witness is weak or inexistent “EPA” financing that is truly supplemental to the support already allocated under the European Development Fund, or EDF.

3. Grant regional political priority to agriculture
On the political front, officials should aim to implement ambitious regional agricultural policies that preference regional production to ensure that food needs are better met.

However, the EPAs and their liberalisation objectives restrict states’ capacity to use measures like trade barriers and community preferences to build domestic agro-economic chains. Furthermore, the “Most Favored Nation” clause, which EU negotiators hope to insert into all of its EPAs in some form, does not permit trade preferences that would promote strengthened trade with non-European countries.

4. Focus on regional integration
Numerous countries have begun focusing on regional policies in their attempts to obtain food security. And yet the very construction of these arenas is threatened by the EPAs.

ACP countries are engaged in international negotiations on a number of fronts (EPA, WTO, agreements with third party countries, etc.), but the number of officials assigned to follow these talks has been cut back. Thus the EU’s insistence on pushing forward in the negotiations on the EPAs in fact penalised the construction of regional trade areas by diverting ACP officials’ attention away from regional initiatives.

The integration envisioned by the EPAs is a forced and counterproductive integration. In addition, the interim EPAs have significantly, and lastingly, endangered budding regional dynamics.

5. Market regulation
The only way to stamp out the kind of market speculation that magnified the volatility of farm prices in 2007 and 2008 is to create and deploy public tools to counter the economic players who see goods as an easy means of scoring a profit. A few examples of such tools: establishing stocks of primary basic agriculture products, guaranteeing “ceiling prices” for foodstuffs, or intervening in import and export markets, which a number of countries did between 2007 and 2009.

These tools are often limited or even prohibited by free trade agreements, in particular for regions that have only a very weak market position, such as ACP regions, which makes them extremely dependent on partners’ goodwill.

European responses to the food crisis

If, as I argue in this article, the EPAs are indeed curbing structural responses to the causes of the food crisis, it is interesting to compare ACP countries’ policy decisions to those that have been taken by the European Union following the food crisis.

Among other things, the Europeans responded by strengthening financial support for farmers by increasing the available budgets. Export subsidies were reintroduced for specific products. Demand increased from all sides for the reimplementation of regulatory tools for European agricultural product supply, in order to maintain agricultural prices at levels that would enable small family businesses to preserve a degree of profitability.

Lastly, there was a major consensus that the EU should maintain a “strong” Common Agricultural Policy. That meant providing for significant budgets, developing offensive trade interests, and offering more protections for this strategic sector. A recent parliamentary report confirms this option for a consistent European Agricultural Policy: “Europe cannot allow itself to place its trust in other parts of the world for the security of its food supply.” Why does the EU allow itself public intervention tools that it refuses to other countries with which it wants to enter into so-called “partnership” trade agreements?

The lessons of a crisis

The 2007-2008 food crisis served as a manifest reminder — particularly for weakened states and regions — of the unique characteristics of the agricultural sector. These characteristics mean that governments must implement appropriate public policies to ensure the security of their food sector.

The unpredictable nature of the food crisis highlights the need to maintain maximum public response capabilities. States and regions must be in a position to react quickly to unforeseeable events without having to wait for the approval of trading “partners,” as has been proposed in some trade agreements now under negotiation.

The development of free trade can by no means be seen as a way to fight the causes of the food crisis. This point is driven home by the fact that we are currently seeing a paradigm reversal in Europe with regard to the future of the CAP. Until recently the bulk of the programme was disparaged; today, however, it is being reasserted as a major direction for European policy.

Henceforth, is there still a place for agriculture in Free Trade Agreements?

Agriculture cannot be subject to liberalisation, even 20 or 25 years down the road, as it is unlikely that even then ACP farm exports will be able to compete with those from the EU. The liberalisation of the agricultural sectors in trade negotiations is a direct threat to the realisation of Millennium Development Goals number one: to reduce poverty and hunger by half.

So many ACP States, regions and peasant organisations adhere to an agricultural policy that calls for “food sovereignty.” By viewing agriculture as a sector much the same as any other, the EPAs are out of line with this perspective. The recent events, in all their very painful reality, should prompt us to acknowledge an agricultural exception in the EPA negotiations, for the ACP countries as well as the EU member states.

J.-J. Grodent is Head of the Information Service with SOS Faim Belgium, and Director of Défis Sud. This document has been prepared based on a presentation given at the Seminar “EPA in (times of) Crisis” on 29 April 2010. For further information, a more detailed version of this article is available from the following link :

Evaluation synthétique des études d’impacts de l’APE réalisées pour les pays membres de la CEMAC, Sao Tomé et Principe et de la République démocratique du Congo », Rapport final, 2007, p.6, Philippe Hugon, Olivier Stintzy, Partenaires et stratégies, PrincewaterhouseCoopers France. « Economic Partnership Agrements : making them tools for development”, 2005, p.2, San Bilal, ECDPM. “Etude d’impact des APE sur l’économie du Mali », 2004, p. 14, B. Faivre Dupaigre, M. Coulibaly, A. Diana, IRAM – GREAT.

EPAs: Can better safeguards help?” K. Ulmer, Speaking notes, EPAs in (times of) crisis
Brussels, 29 April 2010.

Notes
[i] Vanuatu Daily Post, 2010 08 06.

See, on this subject, Alan Matthews, Economic Partnership Agreements and Food Security, Shedding Light on the Negotiations, Vol.9, No.5, June 2010,

The Fiscal Impact of the EPA, David Laborde, Shedding Light on the Negotiations, Vol 9, n°6 July 2010.

See, on this subject, the article by El Hadji Diouf, Why the MFN clause should not be included in EPAs, in Trade Negotiations Insights, Vol. 9 No. 8 (October 2010).

Il n’y a pas de plan «B» aux APE, Bernard Petit interview, Défis Sud n°81, March 2008.

Pouvant d’ailleurs se tourner vers les pays ACP !

Consolidated version of the Treaty on the functioning of the European Union, Official Journal of the European Union, 30 March 2010, Arts 39 to 44. See also Appel de Paris, signed by 22 European countries, for a Common Agricultural and Food Policy, December 2009, http://agriculture.gouv.fr/appel-de-paris-pour-une-politique.

Lyon Report PE 24-03-2010)

A recent interview with the African peasant leader Mamadou Cissokho confirms this approach : http://www.youtube.com/watch?v=RvJnP3v-GK4.

• Les disciplines dans les APE sur des obstacles traditionnels à l’accès au marché, notamment les droits tarifaires et les contingents ;
• Les dispositions qui prennent en compte les obstacles non-traditionnels au commerce dans les accords de l’OMC et dans les divers APE ;
• Les réglementations et normes techniques et les procédures d’évaluation de la conformité ;
• Les mesures sanitaires et phytosanitaires ;
• La relation entre les règles des APE  sur les obstacles non-traditionnels au commerce et celles qui figurent dans les accords de l’OMC.

L’auteur conclut qu’on peut faire beaucoup, grâce aux APE, pour réduire considérablement les effets de restriction des échanges résultant de la manière dont l’UE  formule et applique les obstacles techniques au commerce ou les réglementations sanitaires et phytosanitaires, et détermine le respect de ces règlementations.  Á cet égard, les APE pourraient être des instruments utiles pour corriger les déficiences des accords de l’OMC, en facilitant la mise en œuvre des dispositions qui présentent un intérêt particulier pour les pays ACP (telles que la transparence, l’équivalence et la régionalisation) à travers des directives de procédure et des dispositifs institutionnels détaillés. En outre, des dispositions renforcées sur l’assistance technique (contenant des engagements budgétaires et des mécanismes de décaissement clairs) pourraient largement contribuer à la prise en compte des contraintes de l’offre qui limitent la capacité des pays ACP à tirer profit du potentiel d’accroissement de l’accès au marché découlant des APE.

Professor Pieter Jan Kuijper from Amsterdam University explores this relation in his recent study “Conflicting Rules and Clashing Courts: The Case of Environmental Agreements, Free Trade Agreements and the WTO” published by the International Centre for Trade and Sustainable Development (ICTSD). In this paper, the tool kit available under international law to solve such disputes is discussed through a large number of references to exiting or potential cases.
Professor Kuijper concludes his paper with a list of concrete recommendations to negotiators, litigators, courts and countries. Amongst others, he proposes increased attention on the principle of mutual supportiveness - an wording found in an increasing number of environmental agreements. Moreover, he makes some concrete observations on so called “fork-in-the-road provisions” in free trade agreements and develops recommendations for the inter-regime coordination of international tribunals and the application of comity or litispendence in international courts:

“The application of WTO law may require that the interpretative principle of mutual supportiveness is applied to the relevant WTO rules, which does not imply non-application of WTO law, but application in a restrained way that would not harm the object and purpose of the WTO Agreements.”

“In the interest of the stability of international rule making and governance, international courts and tribunals in neighboring fields, like trade, investment, the environment etc. need to develop a doctrine of “forum non conveniens” between themselves, or at the very least use their inherent powers to abstain from exercising jurisdiction or rule on admissibility if there are serious reasons to do so.”

Please access the study here.
The study will also be presenting during ICTSD’s upcoming event on “Coherence and Compliance: MEAs, FTAs and the WTO” on 12 November, 2010 at 12:30 at the WTO Room A. Please enter the event web page here.