By PAISLEY DODDS, Associated Press Writer Paisley Dodds, Associated Press Writer – Sun Apr 4, 11:27 am ET
LONDON – Protests are growing against Pope Benedict XVI's planned trip to Britain, where some lawyers question whether the Vatican's implicit statehood status should shield the pope from prosecution over sex crimes by pedophile priests.
More than 10,000 people have signed a petition on Downing Street's web site against the pope's 4-day visit to England and Scotland in September, which will cost U.K. taxpayers an estimated 15 million pounds ($22.5 million). The campaign has gained momentum as more Catholic sex abuse scandals have swept across Europe.
Although Benedict has not been accused of any crime, senior British lawyers are now examining whether the pope should have immunity as a head of state and whether he could be prosecuted under the principle of universal jurisdiction for an alleged systematic cover-up of sexual abuses by priests.
Universal jurisdiction — a concept in international law — allows judges to issue warrants for nearly any visitor accused of grievous crimes, no matter where they live. British judges have been more open to the concept than those in other countries.
Lawyers are divided over the immunity issue. Some argue that the Vatican isn't a true state, while others note the Vatican has national relations with about 170 countries, including Britain. The Vatican is also the only non-member to have permanent observer status at the U.N.
Then again, no other top religious leaders enjoy the same U.N. privileges or immunity, so why should the pope?
David Crane, former chief prosecutor at the Sierra Leone war crimes tribunal, said it would be difficult to implicate the pope in anything criminal.
"It's a fascinating kind of academic, theoretical discussion," said Crane, who prosecuted Sierra Leone's Charles Taylor when he was still a sitting head of state. "At this point, there's no liability at all."
But Geoffrey Robertson, who as a U.N. appeals judge delivered key decisions on the illegality of conscripting child soldiers and the invalidity of amnesties for war crimes, believes it could be time to challenge the immunity of the pope — and Britain could be the place. He wrote a legal opinion on the topic that was published Friday in the U.S. news site The Daily Beast and Saturday in the British newspaper the Guardian.
"Unlike in the United States, where the judges commonly uphold what the executive says, the British courts don't accept these things at face value," Robertson told The Associated Press on Saturday. "The Vatican is not a state — it was a construct of Italian dictator Benito Mussolini."
But Jeffrey Lena, the California attorney who argued — and won — head of state immunity for Benedict in U.S. sex abuse cases, said the pope could not successfully be prosecuted for crimes under international law.
"Those who would claim that 'universal jurisdiction' could be asserted over the pope appear to completely misunderstand the sorts of violations, such as genocide, which are required to assert such jurisdiction," he said in a statement to the AP.
Still, Israeli officials, including former Prime Minister Ehud Barak, have recently been targeted by groups in Britain under universal jurisdiction. The law principle is rooted in the belief that certain crimes — such as genocide, war crimes, torture and crimes against humanity — are so serious that they are an offense against humanity and must be addressed.
It's a tactic that the British government would likely abhor, but British judges have often gone against government wishes in lawsuits.
Recent examples include British judges who issued an arrest warrant against Israel's former foreign minister for alleged war crimes, and a British court ruling this year that forced the government to release its intelligence exchanges with U.S. officials about the torture claims of a former Guantanamo detainee.
Prosecution in the deepening cleric sex abuse scandal, however, ultimately rests on the question of immunity. If British judges do challenge the pope's immunity, there are a handful of possible legal scenarios — all of them speculative.
The pope could be served for a writ for civil damages, a complaint could be lodged with the International Criminal Court, or abuse victims could try to have Benedict arrested for crimes against humanity — perhaps the least likely scenario.
Lawyers question whether an alleged systematic cover-up could be considered a crime against humanity — a charge usually reserved for the International Criminal Court — and whether it could be pursued under universal jurisdiction.
Attorney Jennifer Robinson in London, who has been researching the possibilities, says rape and sexual slavery can be considered crimes against humanity.
Others, like Hurst Hannum with the Fletcher School of Law & Diplomacy at Tufts University near Boston, are skeptical.
"No one would question that the Church's response to widespread abuses has been atrocious, but it's very difficult for me to see how that would fit 'crimes against humanity,'" said Hannum.
Robertson is more in favor of challenging the immunity question.
"Head of state immunity provides no protection in the International Criminal Court," said Robertson, who represented The Associated Press and other media organizations who sought to make U.S.-U.K. intelligence exchanges public in the case of former Guantanamo detainee Binyam Mohamed.
"If acts of sexual abuse by priests are not isolated or sporadic events but part of a wide practice both known to and unpunished by their de facto-authority — i.e. the Catholic Church ... then the commander can be held criminally liable," Robertson said.
Even though the Vatican — like the United States — did not sign the accord that established the international court, a crime would only have to occur in a country which did sign, like Britain. Still, lawyers would have to prove that the crimes or an alleged cover-up occurred or continued after the court was set up in July 2002.
In a 2005 test case in Texas that involved alleged victims of sex abuse by priests, the Vatican obtained the intervention of President George W. Bush, who agreed the pope should have immunity against such prosecutions because he was an acting head of a foreign state.
It was around 1929 when Mussolini decided that the Vatican — a tiny enclave about 0.17 of a square mile with some 900 people — was a sovereign state.
"The notion that statehood can be created by another country's unilateral declaration is risible," Robertson said.
Others say the last 80 years of history have turned the Vatican into a state, and it would be almost impossible to strip the pope of his immunity now.
"My guess is the weight of opinion would allow the pope to enjoy immunity," said Hannum. "It's not automatically clear that the Holy See is a state, although it's treated as one for almost every purpose."
Last year, a Palestinian bid to have Barak — the Israeli defense chief who also served as prime minister until 2001 — arrested for alleged war crimes during a visit to Britain failed when the courts determined that he should be given immunity from arrest.
But months later, pro-Palestinian activists persuaded a London judge to issue an arrest warrant for Israeli politician Tzipi Livni, who was foreign minister during the 2008-2009 war in Gaza. The warrant was eventually withdrawn after Livni canceled her trip.
Spain and Britain jointly pioneered the universal jurisdiction concept when, in 1998, Britain executed a Spanish arrest warrant for former Chilean dictator Augusto Pinochet on torture claims. Pinochet was kept under house arrest in London until he was ruled physically and mentally unfit to stand trial and released in 2000.
When he was arrested, however, Pinochet was no longer head of state.
In 2001, activists brought Israel's then-Prime Minister Ariel Sharon to trial in Belgium in connection with a 1982 massacre at a Beirut refugee camp. Sharon canceled a planned trip to Belgium and was tried in absentia in a Belgian court. He was not convicted but the case provoked diplomatic protests and prompted Belgium in 2003 to tighten the law that had permitted the trial.
Prime Minister Gordon Brown has vowed to block private groups from taking legal action against visiting foreign dignitaries but any new law is unlikely before Britain's expected May 6 election.
The pope plans to visit Malta, Portugal and Cyprus before traveling to Britain on Sept. 16. A trip to Spain is planned for later in the fall.
Associated Press Writers Gregory Katz and Raphael Satter in London, Nicole Winfield in Rome and Daniel Woolls from Madrid contributed to this report.
Copyright © 2010 The Associated Press. All rights reserved.
2010年4月5日 星期一
2010年3月20日 星期六
72國反對 黑鮪禁令遭封殺
大西洋黑鮪禁止國際貿易案在聯合國杜哈會議被否決，許多人又重提日本是大黑手，其實日本只是本案殺手之一，另外還有71個殺手，大多是開發中國家，包括中國和南韓。72國反對這項禁令，原因無他：經濟和就業至上，只好委屈黑鮪魚。
南韓媒體說，南韓投反對票的理由，除了南韓是重要捕鮪國，另一理由是怕「惡例」一開，將來延伸到其他鮪類，影響漁業。
管轄大西洋黑鮪的兩大單位，一是「瀕臨絕種野生動植物國際貿易公約」 (CITES)，通稱「華盛頓公約」，一是「國際大西洋鮪類保育委員會」 (ICCAT)。
ICCAT去年年會未能大幅限制大西洋黑鮪年捕量，摩納哥訴諸CITES，提出全面禁貿令，日本當時揚言反對任何禁令。
但肉美價貴的大西洋黑鮪注定繼續走向滅絕之路。徹底支持禁令者只有美國、挪威、肯亞，18日投票支持禁令的43國，包括歐盟，不少主張緩議。
非洲、亞洲、拉美、加勒比海的漁業國家說，禁令傷害漁民，而且大西洋黑鮪危機危言聳聽。18日會議上，利比亞代表帶頭，聲震全場，直指提案者摩納哥提供的科學證據全是誤導視聽的謊言。保育組織希望交付工作小組繼續辯論，但利比亞要求立即表決，結果就是如此。
向來被指為黑鮪危機禍首的日本樂得順水推舟，大大賣乖，出席會議的水產廳審議官宮原正典說，日本向來不遺餘力關心大西洋黑鮪過去50年來銳減80%的命運，但主管此事的不應該是CITES，而應該是ICCAT，因為CITES的禁令不切實際，ICCAT走降低漁獲配額的路線，日本願意接受。
宮原說，日本聽ICCAT的，而ICCAT有大西洋黑鮪復育計畫，因此CITES案未過，對日本也是沉重的結果，因為日本自覺更有責任協助復育。
【2010/03/19 聯合晚報】 @ http://udn.com/
南韓媒體說，南韓投反對票的理由，除了南韓是重要捕鮪國，另一理由是怕「惡例」一開，將來延伸到其他鮪類，影響漁業。
管轄大西洋黑鮪的兩大單位，一是「瀕臨絕種野生動植物國際貿易公約」 (CITES)，通稱「華盛頓公約」，一是「國際大西洋鮪類保育委員會」 (ICCAT)。
ICCAT去年年會未能大幅限制大西洋黑鮪年捕量，摩納哥訴諸CITES，提出全面禁貿令，日本當時揚言反對任何禁令。
但肉美價貴的大西洋黑鮪注定繼續走向滅絕之路。徹底支持禁令者只有美國、挪威、肯亞，18日投票支持禁令的43國，包括歐盟，不少主張緩議。
非洲、亞洲、拉美、加勒比海的漁業國家說，禁令傷害漁民，而且大西洋黑鮪危機危言聳聽。18日會議上，利比亞代表帶頭，聲震全場，直指提案者摩納哥提供的科學證據全是誤導視聽的謊言。保育組織希望交付工作小組繼續辯論，但利比亞要求立即表決，結果就是如此。
向來被指為黑鮪危機禍首的日本樂得順水推舟，大大賣乖，出席會議的水產廳審議官宮原正典說，日本向來不遺餘力關心大西洋黑鮪過去50年來銳減80%的命運，但主管此事的不應該是CITES，而應該是ICCAT，因為CITES的禁令不切實際，ICCAT走降低漁獲配額的路線，日本願意接受。
宮原說，日本聽ICCAT的，而ICCAT有大西洋黑鮪復育計畫，因此CITES案未過，對日本也是沉重的結果，因為日本自覺更有責任協助復育。
【2010/03/19 聯合晚報】 @ http://udn.com/
2010年3月19日 星期五
全球創舉 英出租海域 投入波浪潮汐發電
中國時報 2010.03.18
全球創舉 英出租海域 投入波浪潮汐發電
實習編譯林力敏／綜合報導
英國政府與民間企業合作，在海洋發電領域乘風破浪，並創下世界新猷。蘇格蘭第一部長塞蒙德十六日宣布，皇家財產局（Crown Estate）將把蘇格蘭東北部朋特蘭灣（Pentland Firth）與奧克尼群島（Orkney）的十處海域租借給七家公司，建造波浪發電廠與潮汐發電廠，而這是全球的創舉，預計到了二○二○年，將可供應七十五萬戶家庭用電。
塞蒙德表示，蘇格蘭周遭海域深具發電潛力，素有「海洋能源的沙烏地阿拉伯」之稱。七家業者將建立六座波浪發電廠、四座潮汐發電廠，兩種類型的裝置容量各六萬瓩，合計十二萬瓩。
英預計二○五○年前，將全國每年溫室氣體排放量減至一九九○年的二○％，要達成此一目標，海洋發電之類的可再生能源將扮演重要角色。蘇格蘭這項計畫不僅能有助於經濟發展與創造工作機會，也向建立低碳社會的目標邁出一大步。
世界自然基金會（ＷＷＦ）蘇格蘭分會主任迪克遜指出，英國的海洋發電技術獨步全球，只要妥善規劃，並不會破壞海洋生態。
潮汐發電起源甚早，利用漲潮退潮間水位的高低差距（潮差）來取得能量，潮差八公尺以上的地區就具備發電的經濟價值。
波浪發電則是利用海浪上下振動的特性，藉由穩定運動機制將其動能轉換成電能。
據聯合國教科文組織（ＵＮＥＳＣＯ）調查，地球海洋能的總量約為七三六億瓩，其中海水溫差能四百億瓩，鹽差能三百億瓩，潮汐和波浪能合佔卅億瓩。台灣四面環海，蘊藏的海洋能源也相當豐富，海洋大學、工研院與台船公司正合作推動開發計畫。
全球創舉 英出租海域 投入波浪潮汐發電
實習編譯林力敏／綜合報導
英國政府與民間企業合作，在海洋發電領域乘風破浪，並創下世界新猷。蘇格蘭第一部長塞蒙德十六日宣布，皇家財產局（Crown Estate）將把蘇格蘭東北部朋特蘭灣（Pentland Firth）與奧克尼群島（Orkney）的十處海域租借給七家公司，建造波浪發電廠與潮汐發電廠，而這是全球的創舉，預計到了二○二○年，將可供應七十五萬戶家庭用電。
塞蒙德表示，蘇格蘭周遭海域深具發電潛力，素有「海洋能源的沙烏地阿拉伯」之稱。七家業者將建立六座波浪發電廠、四座潮汐發電廠，兩種類型的裝置容量各六萬瓩，合計十二萬瓩。
英預計二○五○年前，將全國每年溫室氣體排放量減至一九九○年的二○％，要達成此一目標，海洋發電之類的可再生能源將扮演重要角色。蘇格蘭這項計畫不僅能有助於經濟發展與創造工作機會，也向建立低碳社會的目標邁出一大步。
世界自然基金會（ＷＷＦ）蘇格蘭分會主任迪克遜指出，英國的海洋發電技術獨步全球，只要妥善規劃，並不會破壞海洋生態。
潮汐發電起源甚早，利用漲潮退潮間水位的高低差距（潮差）來取得能量，潮差八公尺以上的地區就具備發電的經濟價值。
波浪發電則是利用海浪上下振動的特性，藉由穩定運動機制將其動能轉換成電能。
據聯合國教科文組織（ＵＮＥＳＣＯ）調查，地球海洋能的總量約為七三六億瓩，其中海水溫差能四百億瓩，鹽差能三百億瓩，潮汐和波浪能合佔卅億瓩。台灣四面環海，蘊藏的海洋能源也相當豐富，海洋大學、工研院與台船公司正合作推動開發計畫。
2010年3月16日 星期二
三個與國家承認與繼承的相關題目 --- 請大家動動腦思考一下
以下三個問題都跟剛學過的"國家與政府之承認及繼承"此一主題目密切相關，提供大家參考。請大家根據目前所學習到的知識，花點時間思考一下問題的爭點為何??又，涉及什麼基本觀念??其實這三題並不困難，只要能抓到題目的關鍵詞或關鍵句，應該能輕鬆解題。我也會利用TA課的時間與大家討論並提供參考答案。
一、原告C公司一九八八年於美國法院提起訴訟，控告被告E公司等未經授權而逕行出租及發行其錄影帶，原告因而要求被告賠償美金二百萬。依原告的主張，一九四八年生效的「中美友好通商航海條約」（Treaty of Friendship, Commerce and Navigation）提供了中華民國和美國雙方人民著作權保護的依據。但被告表示由於美國已經撤銷了對中華民國的承認，中華民國已不再是一個國家，「中美友好通商航海條約」也應當隨著斷交而失效，在這種情形下，美國就不再受到和中華民國之間所締結條約的拘束。
中華民國外交部覺得本案表面為智慧財產權之爭議，但其實涉及國家重大利益，故邀請閣下針對被告所提論點，提供國際法意見。【97年政大外交所】
二、如果台灣獨立成功，中華人民共和國要求索回故宮文物及國史館文件。如果你是國際法的仲裁者，看法如何，立論為何？【97年台大政治所】
三、位於A國境內之武裝團體甲藉由發動軍事政變推翻合法政府乙，並建立新政權，由於新政權甲已有效統治A領域內之人民，故眾多國家紛紛給予甲法律承認，同時撤銷對原合法政府乙之承認，惟長年與A國關係不睦之B國基於國家利益考量，宣稱甲係以非法方式篡奪政權，故公開駁斥甲之政權合法性，並承認乙在國際上仍屬代表A國之惟一合法政府。然而，為吸引外國企業赴A國投資藉以提升經濟發展，甲在執政期間曾與B國企業締結石油勘探契約，依據該契約之規定，甲應賦予B國企業開發近海石油之優先權。未料契約締結後，甲以B國情報局密派間諜刺探A國國安情報為由拒絕履行契約，致已投入鉅額添購機器設備之B國企業蒙受重大損失。請問：（一）根據國際法，各國應否承認甲政權之合法性？（二）針對甲違約造成B國企業之損害，B國在何種條件下得代替該企業行使外交保護權？（三）依據政府繼承之理論，甲是否有繼承原合法政府乙執政時期所締結國際條約或協定之義務？（四）越數年，乙推翻甲並成功取回政權後，立即宣布甲執政期間與外國政府或私人企業所締結之一切條約或私法契約均歸於無效，主張其無繼承之法律義務，此論述有無理由？【助教設計題目】
(本篇由助教發布)
一、原告C公司一九八八年於美國法院提起訴訟，控告被告E公司等未經授權而逕行出租及發行其錄影帶，原告因而要求被告賠償美金二百萬。依原告的主張，一九四八年生效的「中美友好通商航海條約」（Treaty of Friendship, Commerce and Navigation）提供了中華民國和美國雙方人民著作權保護的依據。但被告表示由於美國已經撤銷了對中華民國的承認，中華民國已不再是一個國家，「中美友好通商航海條約」也應當隨著斷交而失效，在這種情形下，美國就不再受到和中華民國之間所締結條約的拘束。
中華民國外交部覺得本案表面為智慧財產權之爭議，但其實涉及國家重大利益，故邀請閣下針對被告所提論點，提供國際法意見。【97年政大外交所】
二、如果台灣獨立成功，中華人民共和國要求索回故宮文物及國史館文件。如果你是國際法的仲裁者，看法如何，立論為何？【97年台大政治所】
三、位於A國境內之武裝團體甲藉由發動軍事政變推翻合法政府乙，並建立新政權，由於新政權甲已有效統治A領域內之人民，故眾多國家紛紛給予甲法律承認，同時撤銷對原合法政府乙之承認，惟長年與A國關係不睦之B國基於國家利益考量，宣稱甲係以非法方式篡奪政權，故公開駁斥甲之政權合法性，並承認乙在國際上仍屬代表A國之惟一合法政府。然而，為吸引外國企業赴A國投資藉以提升經濟發展，甲在執政期間曾與B國企業締結石油勘探契約，依據該契約之規定，甲應賦予B國企業開發近海石油之優先權。未料契約締結後，甲以B國情報局密派間諜刺探A國國安情報為由拒絕履行契約，致已投入鉅額添購機器設備之B國企業蒙受重大損失。請問：（一）根據國際法，各國應否承認甲政權之合法性？（二）針對甲違約造成B國企業之損害，B國在何種條件下得代替該企業行使外交保護權？（三）依據政府繼承之理論，甲是否有繼承原合法政府乙執政時期所締結國際條約或協定之義務？（四）越數年，乙推翻甲並成功取回政權後，立即宣布甲執政期間與外國政府或私人企業所締結之一切條約或私法契約均歸於無效，主張其無繼承之法律義務，此論述有無理由？【助教設計題目】
(本篇由助教發布)
2010年3月12日 星期五
黑鮪魚貿易戰 日本卯上歐美
黑鮪魚向來是老饕的最愛，但為了避免黑鮪魚遭過度捕撈，世界主要國家將於未來兩周內投票決定是否禁止黑鮪魚的跨國交易，贊成與反對兩大陣營間的黑鮪魚貿易大戰即將開打。
在美國與歐盟的支持下，摩納哥將在本屆瀕臨絕種野生動植物種國際貿易公約（CITES，又稱華盛頓公約）大會提案，把黑鮪魚列入第一層級的保護物種。第一層級物種係指「瀕臨絕種，禁止或嚴格限制買賣」、並禁止商業性國際貿易的物種。CITES預定13至25日於卡達杜哈集會。
摩納哥的提案預料將遇到強烈反彈，由於此提案須獲得175個會員的三分之二票數同意，才能通過，再由各國各自立法實施，因此贊成與反對兩大陣營已在會前展開激烈的合縱連橫，一名資深歐盟談判代表就說：「大戰即將開打！」
這名談判代表指出，日本反對的態度相當堅決。在全球每年捕撈的黑鮪魚中，日本就吃掉其中三分之二，主要以壽司與生魚片供應。分析師說，中國與加拿大也可能會反對。法國、西班牙及義大利已表態支持。
普優環境組織（Pew Enviroment Group）政策總監利博曼指出，「如果今年杜哈大會決議停止（黑鮪魚）貿易，所有科學家一致認為黑鮪魚將能完全復育；但若再歷經兩到五年的過度捕撈，黑鮪魚將無法復育」。
專家指出，若通過此禁令，移除時機得視該物種復育狀況而定，時間大約會在十年以上。
一隻重達220公斤的黑鮪魚在日本拍賣售價可達16萬美元，高昂價格成為業者過度捕撈的極大誘因。
近年來在公海的大規模捕撈已造成黑鮪魚數量銳減：地中海海域黑鮪魚數量減少逾三分之二，西大西洋則減少了80%。
法國海洋研究機構IFREMER也指出，拖吊船隊在地中海海域所捕撈的產量，「遠超過魚群的繁殖能力」。
法國海洋生物學家佛頓努則認為，「如果大家都能遵循大西洋鮪類資源保育協會（ICCAT）的新配額，科學家就不會有任何要求禁止跨國魚類貿易的立場」。ICCAT今年將全球捕撈量配額減少到1.35萬噸
新聞辭典／CITES
「瀕臨絕種野生動植物國際貿易公約」（CITES，或稱華盛頓公約）是由全球80國在1973年簽署，如今共有175成員國，保護的交易物種超過3.5 萬種，共分成三層級：
第一：瀕臨絕種、禁止或嚴格限制買賣的約530種動物和逾300種植物，如老虎、類人猿、雪豹、蘭花、仙人掌等。黑鮪魚也將在此次杜哈會議表決是否列入。
第二：「不見得瀕臨絕種，不過買賣必須控制以避免危害生存」的4,460種動物和2萬多種植物，如部份靈長類、鯨魚、鱷魚、大鯨鯊等。
第三層級：包括至少一國明文規定保護、且必須透過「國際合作」監督買賣的近300物種，包括中國紅珊瑚、突尼西亞的鹿羚等。
【2010/03/12 經濟日報】@ http://udn.com/
在美國與歐盟的支持下，摩納哥將在本屆瀕臨絕種野生動植物種國際貿易公約（CITES，又稱華盛頓公約）大會提案，把黑鮪魚列入第一層級的保護物種。第一層級物種係指「瀕臨絕種，禁止或嚴格限制買賣」、並禁止商業性國際貿易的物種。CITES預定13至25日於卡達杜哈集會。
摩納哥的提案預料將遇到強烈反彈，由於此提案須獲得175個會員的三分之二票數同意，才能通過，再由各國各自立法實施，因此贊成與反對兩大陣營已在會前展開激烈的合縱連橫，一名資深歐盟談判代表就說：「大戰即將開打！」
這名談判代表指出，日本反對的態度相當堅決。在全球每年捕撈的黑鮪魚中，日本就吃掉其中三分之二，主要以壽司與生魚片供應。分析師說，中國與加拿大也可能會反對。法國、西班牙及義大利已表態支持。
普優環境組織（Pew Enviroment Group）政策總監利博曼指出，「如果今年杜哈大會決議停止（黑鮪魚）貿易，所有科學家一致認為黑鮪魚將能完全復育；但若再歷經兩到五年的過度捕撈，黑鮪魚將無法復育」。
專家指出，若通過此禁令，移除時機得視該物種復育狀況而定，時間大約會在十年以上。
一隻重達220公斤的黑鮪魚在日本拍賣售價可達16萬美元，高昂價格成為業者過度捕撈的極大誘因。
近年來在公海的大規模捕撈已造成黑鮪魚數量銳減：地中海海域黑鮪魚數量減少逾三分之二，西大西洋則減少了80%。
法國海洋研究機構IFREMER也指出，拖吊船隊在地中海海域所捕撈的產量，「遠超過魚群的繁殖能力」。
法國海洋生物學家佛頓努則認為，「如果大家都能遵循大西洋鮪類資源保育協會（ICCAT）的新配額，科學家就不會有任何要求禁止跨國魚類貿易的立場」。ICCAT今年將全球捕撈量配額減少到1.35萬噸
新聞辭典／CITES
「瀕臨絕種野生動植物國際貿易公約」（CITES，或稱華盛頓公約）是由全球80國在1973年簽署，如今共有175成員國，保護的交易物種超過3.5 萬種，共分成三層級：
第一：瀕臨絕種、禁止或嚴格限制買賣的約530種動物和逾300種植物，如老虎、類人猿、雪豹、蘭花、仙人掌等。黑鮪魚也將在此次杜哈會議表決是否列入。
第二：「不見得瀕臨絕種，不過買賣必須控制以避免危害生存」的4,460種動物和2萬多種植物，如部份靈長類、鯨魚、鱷魚、大鯨鯊等。
第三層級：包括至少一國明文規定保護、且必須透過「國際合作」監督買賣的近300物種，包括中國紅珊瑚、突尼西亞的鹿羚等。
【2010/03/12 經濟日報】@ http://udn.com/
2010年3月10日 星期三
The Copenhagen Climate Change Accord
The Copenhagen Climate Change Accord
By Daniel Bodansky
ASIL Insight
February 16, 2010
Volume 14, Issue 3
Available at http://www.asil.org/insights100212.cfm
Introduction
Since the Kyoto Protocol's entry into force in 2005, attention has focused on the question of what to do after 2012, when the Kyoto Protocol's first commitment period ends. Should the Kyoto Protocol be extended through the adoption of a second commitment period, with a new round of emission reduction targets for developed country parties? And, if so, should a new agreement be adopted under the United Nations Framework Convention on Climate Change (UNFCCC)[1], which addresses the emissions of countries that either are not parties to the Kyoto Protocol[2] (the United States) or do not have Kyoto emissions targets (developing countries)? Or should a single new agreement be adopted that replaces the Kyoto Protocol and is more comprehensive in coverage, addressing both developed and developing country emissions?
The Copenhagen Conference of the Parties (COP), which met from December 7-19, 2009, had been intended as the deadline to resolve these questions about the post-2012 climate regime – a view reflected in the unofficial slogan for the conference, "seal the deal."[3] The decision by more than one hundred heads of state or government to attend heightened public expectations that the Copenhagen Conference would result in a major breakthrough; and more than 40,000 people registered, making Copenhagen one of the largest environmental meetings in history. But the lack of progress in the negotiations in the months leading up to Copenhagen suggested that hopes for a full-fledged legal agreement were unrealistic. In the end, the Copenhagen conference resulted only in a political agreement, the Copenhagen Accord,[4] which was negotiated by the leaders of the world's major economies, but was not formally adopted by the conference, leaving its future prospects uncertain.
The Copenhagen Accord
The Copenhagen Accord is a political rather than a legal document, negotiated by a group of about twenty-five heads of state, heads of government, ministers, and other heads of delegations.
Key elements of the Accord include the following:
Long-term vision – The Copenhagen Accord recognizes the need to limit global temperature increase to no more than 2° Celsius. States were unable to agree on other methods of defining the regime's long-term objective, for example, in terms of an upper bound on atmospheric concentrations of greenhouse gases such as 350 or 450 parts per million (ppm), or a long-term goal to reduce global emissions by 50% by 2050 (the so-called "50 by 50" target, which the G-8 has endorsed), or a target date for the peaking of global emissions. In deference to the small island states, which had pushed for a 1.5 degree limit on global temperature change, the Copenhagen Accord provides that the assessment of the Accord by 2015 include consideration of this stronger target.
Developed country mitigation – Over the past year, general consensus has emerged that developed countries should undertake economy-wide emissions reduction targets for the post-2012 period, although countries have differed about the stringency of these emissions reduction targets, the base-year from which reduction targets should be measured, and whether the targets should be defined using international accounting rules (as in Kyoto) or national legislation (as the U.S. has proposed). The Copenhagen Accord establishes a bottom-up process that allows each Annex I party to define its own target level, base year and accounting rules, and to submit its target in a defined format, for compilation by the UNFCCC Secretariat. Under the terms of the Accord, Annex I countries "commit to implement" their targets, individually or jointly, subject to international monitoring, reporting and verification (MRV).
Developing country mitigation – As with developed country emissions targets, the Copenhagen Accord establishes a bottom-up process by which developing countries will submit their mitigation actions in a defined format, for compilation by the UNFCCC Secretariat. It provides that developing countries will submit greenhouse gas inventories every two years, that developing country mitigation actions will be subject to domestic MRV, and that the results of this domestic MRV will be reported in biennial national communications, which will be subject to "international consultations and analysis under clearly defined guidelines." The Copenhagen Accord also establishes a registry for listing nationally appropriate mitigation actions (NAMAs) for which international support is sought, and provides that supported NAMAs will be subject to international MRV in accordance with COP guidelines.
Financial assistance – In Copenhagen, the discussions about financial support revolved around the typical issues: how much money, from what sources, and with what governance arrangements? The Copenhagen Accord addresses only the first of these issues, leaving the other two for future resolution. It creates a "collective commitment" for developed countries to provide "new and additional resources . . . approaching $30 billion" for the 2010-2012 period, balanced between adaptation and mitigation, and sets a longer-term collective "goal" of mobilizing $100 billion per year by 2020 from all sources, but links this money to "meaningful mitigation actions and transparency on implementation" (para. 8). It also calls for governance of adaptation funding through equal representation by developing and developed country parties, but does not establish governance arrangement for finance more generally. Finally, it calls for the establishment of a Copenhagen Green Climate Fund (para. 10) as an operating entity of the UNFCCC's financial mechanism, as well as a High Level Panel to consider potential sources of revenue to meet the $100 billion per year goal.
Forestry – In the run-up to Copenhagen, the potential to reduce emissions from deforestation and forest degradation (known as "REDD-plus") received considerable attention. The principal question has been whether to finance REDD-plus from public funds or by providing carbon credits. The Copenhagen Accord calls for the "immediate establishment" of a mechanism to help mobilize resources for REDD-plus from developed countries and acknowledges the "need to provide positive incentives," without resolving the issue of public vs. private support.
Monitoring, reporting and verification (MRV) – As with the mitigation issue, the MRV discussions have concerned the level of MRV as well as the parallelism/differentiation between developed and developing country MRV. The Copenhagen Accord calls for "rigorous, robust and transparent" MRV of Annex I emissions reductions and financing, "in accordance with existing and any further guidelines adopted by the COP." As noted above, supported NAMAs by developing countries will be subject to international MRV "in accordance with guidelines adopted by the COP," while so-called "autonomous" mitigation actions will be verified nationally and reported in national communications every two years and subject to "international consultations and analysis under clearly defined guidelines that will ensure that national sovereignty is respected."
The Future of the Copenhagen Accord
Despite agreement on the Copenhagen Accord by the heads of state or government of more than twenty-five countries, including all of the major economies, the conference was unable to "adopt" the Accord due to objections by a small group of countries, led by Sudan, Venezuela, Bolivia, and Nicaragua, which refused to join consensus, arguing that the negotiation of the Copenhagen Accord by a smaller group represented a "coup d'état" against the United Nations because it bypassed the formal meetings. After an all-night session, the impasse was ultimately broken through a decision to "take note of" the Copenhagen Accord, giving it some status in the UNFCCC process but not as much as approval by the COP. Those countries that wish to "associate" themselves with the Copenhagen Accord are to notify the UNFCCC Secretariat for inclusion in the list of countries at the beginning of the Accord.
As of February 10, 2010, the UNFCCC Secretariat had received submissions from more than ninety countries, representing more than 80% of global greenhouse gas (GHG) emissions, regarding their plans to reduce their GHG emissions and/or their wish to be "associated" with the Copenhagen Accord. In many cases, countries providing information on their mitigation actions have expressly "associated" themselves with the Copenhagen Accord, but a number of countries - most notably China, India, Brazil, and South Africa - did not do so expressly.
The Copenhagen Accord asserts that it will be "operational immediately," but fully operationalizing its terms will require further acts – for example, the spelling out of the guidelines for international consultation and analysis of developing country mitigation actions, and the establishment of the various bodies envisioned in the Accord (a High Level Panel to study potential sources of revenue, the Copenhagen Green Climate Fund, and a new Technology Mechanism). Ordinarily, this work would be carried out by the COP. But if some countries continue to block consensus in the COP, as occurred in Copenhagen, then this elaboration of the Copenhagen Accord might need to be done by the "associators" group.
Conclusion
Although the Copenhagen Accord has been criticized by some as inadequate, it represents a potentially significant breakthrough. True, the emission reduction pledges announced thus far do not put the world on a pathway to limiting climate change to 2° C, the ostensible long-term goal of the Accord.[5] But the participating states did agree to list their national actions internationally and to subject their actions to some form of international scrutiny, even when their actions do not receive any international support. Plus, the Accord articulates a quantified long-term goal for the first time (no more than 2° C temperature increase) and puts significant new funds on the table, both for the short and medium terms.
As a political necessity, the Copenhagen Accord continues to reflect the principle of common but differentiated responsibilities and respective capabilities, but in a very different manner than in Kyoto. Developed countries committed to implement economy-wide emission reduction "targets," subject to international MRV, while developing country "actions" will be subject to international MRV only if they receive international support and to national MRV otherwise. Nevertheless, the Copenhagen Accord reflects an apparent shift by China, India, Brazil, and South Africa, which begins to break the so-called "firewall" between developed and developing countries. For the first time, major developing countries have agreed to reflect their national emission reduction pledges in an international instrument, to report on their GHG inventories and their mitigation actions in biennial national communications, and to subject their actions either to MRV (for internationally supported actions) or "international consultation and analysis under clearly defined guidelines that will ensure that national sovereignty is respected" (for domestically supported actions).
This outcome may seem like a rather modest achievement, but it represents some measure of "internationalization" of developing country actions. In any event, if world leaders could not agree to more through direct negotiations, under an intense international spotlight, it is hard to see why mid-level negotiators will be able to achieve more anytime soon. As a result, the Copenhagen Accord may well represent the high-water mark of the climate change regime for some time to come.
Endnotes
[1] United Nations Framework Convention on Climate Change, May 9, 1992, 31 I.L.M. 849 (1992) [hereinafter UNFCCC].
[2] Kyoto Protocol to the United Nations Framework Convention on Climate Change, UNFCCC Conference of the Parties, 3d Sess., UN Doc. FCCC/CP/1997/L.7/Add.1 (Dec. 10, 1997), 37 I.L.M. 22 (1998).
[3] The Copenhagen Conference was a combined meeting of the Fifteen Conference of the Parties of the UNFCCC (COP-15) and the Fifth Meeting of the Parties of the Kyoto Protocol (CMP-5). For background on the Copenhagen Conference, see Cymie R. Payne, State of Play: Changing Climate at Copenhagen, ASIL INSIGHT, Dec. 8, 2009, available at http://www.asil.org/files/insight091208pdf.pdf.
[4] The Copenhagen Accord, http://unfccc.int/files/meetings/cop_15/application/pdf/cop15_cph_auv.pdf (advance unedited version).
[5] Kelly Levin & Rob Bradley, Comparability of Annex I Emission Reduction Pledges (World Resources Institute, Working Paper, Feb. 2010).
(本篇由助教發布)
By Daniel Bodansky
ASIL Insight
February 16, 2010
Volume 14, Issue 3
Available at http://www.asil.org/insights100212.cfm
Introduction
Since the Kyoto Protocol's entry into force in 2005, attention has focused on the question of what to do after 2012, when the Kyoto Protocol's first commitment period ends. Should the Kyoto Protocol be extended through the adoption of a second commitment period, with a new round of emission reduction targets for developed country parties? And, if so, should a new agreement be adopted under the United Nations Framework Convention on Climate Change (UNFCCC)[1], which addresses the emissions of countries that either are not parties to the Kyoto Protocol[2] (the United States) or do not have Kyoto emissions targets (developing countries)? Or should a single new agreement be adopted that replaces the Kyoto Protocol and is more comprehensive in coverage, addressing both developed and developing country emissions?
The Copenhagen Conference of the Parties (COP), which met from December 7-19, 2009, had been intended as the deadline to resolve these questions about the post-2012 climate regime – a view reflected in the unofficial slogan for the conference, "seal the deal."[3] The decision by more than one hundred heads of state or government to attend heightened public expectations that the Copenhagen Conference would result in a major breakthrough; and more than 40,000 people registered, making Copenhagen one of the largest environmental meetings in history. But the lack of progress in the negotiations in the months leading up to Copenhagen suggested that hopes for a full-fledged legal agreement were unrealistic. In the end, the Copenhagen conference resulted only in a political agreement, the Copenhagen Accord,[4] which was negotiated by the leaders of the world's major economies, but was not formally adopted by the conference, leaving its future prospects uncertain.
The Copenhagen Accord
The Copenhagen Accord is a political rather than a legal document, negotiated by a group of about twenty-five heads of state, heads of government, ministers, and other heads of delegations.
Key elements of the Accord include the following:
Long-term vision – The Copenhagen Accord recognizes the need to limit global temperature increase to no more than 2° Celsius. States were unable to agree on other methods of defining the regime's long-term objective, for example, in terms of an upper bound on atmospheric concentrations of greenhouse gases such as 350 or 450 parts per million (ppm), or a long-term goal to reduce global emissions by 50% by 2050 (the so-called "50 by 50" target, which the G-8 has endorsed), or a target date for the peaking of global emissions. In deference to the small island states, which had pushed for a 1.5 degree limit on global temperature change, the Copenhagen Accord provides that the assessment of the Accord by 2015 include consideration of this stronger target.
Developed country mitigation – Over the past year, general consensus has emerged that developed countries should undertake economy-wide emissions reduction targets for the post-2012 period, although countries have differed about the stringency of these emissions reduction targets, the base-year from which reduction targets should be measured, and whether the targets should be defined using international accounting rules (as in Kyoto) or national legislation (as the U.S. has proposed). The Copenhagen Accord establishes a bottom-up process that allows each Annex I party to define its own target level, base year and accounting rules, and to submit its target in a defined format, for compilation by the UNFCCC Secretariat. Under the terms of the Accord, Annex I countries "commit to implement" their targets, individually or jointly, subject to international monitoring, reporting and verification (MRV).
Developing country mitigation – As with developed country emissions targets, the Copenhagen Accord establishes a bottom-up process by which developing countries will submit their mitigation actions in a defined format, for compilation by the UNFCCC Secretariat. It provides that developing countries will submit greenhouse gas inventories every two years, that developing country mitigation actions will be subject to domestic MRV, and that the results of this domestic MRV will be reported in biennial national communications, which will be subject to "international consultations and analysis under clearly defined guidelines." The Copenhagen Accord also establishes a registry for listing nationally appropriate mitigation actions (NAMAs) for which international support is sought, and provides that supported NAMAs will be subject to international MRV in accordance with COP guidelines.
Financial assistance – In Copenhagen, the discussions about financial support revolved around the typical issues: how much money, from what sources, and with what governance arrangements? The Copenhagen Accord addresses only the first of these issues, leaving the other two for future resolution. It creates a "collective commitment" for developed countries to provide "new and additional resources . . . approaching $30 billion" for the 2010-2012 period, balanced between adaptation and mitigation, and sets a longer-term collective "goal" of mobilizing $100 billion per year by 2020 from all sources, but links this money to "meaningful mitigation actions and transparency on implementation" (para. 8). It also calls for governance of adaptation funding through equal representation by developing and developed country parties, but does not establish governance arrangement for finance more generally. Finally, it calls for the establishment of a Copenhagen Green Climate Fund (para. 10) as an operating entity of the UNFCCC's financial mechanism, as well as a High Level Panel to consider potential sources of revenue to meet the $100 billion per year goal.
Forestry – In the run-up to Copenhagen, the potential to reduce emissions from deforestation and forest degradation (known as "REDD-plus") received considerable attention. The principal question has been whether to finance REDD-plus from public funds or by providing carbon credits. The Copenhagen Accord calls for the "immediate establishment" of a mechanism to help mobilize resources for REDD-plus from developed countries and acknowledges the "need to provide positive incentives," without resolving the issue of public vs. private support.
Monitoring, reporting and verification (MRV) – As with the mitigation issue, the MRV discussions have concerned the level of MRV as well as the parallelism/differentiation between developed and developing country MRV. The Copenhagen Accord calls for "rigorous, robust and transparent" MRV of Annex I emissions reductions and financing, "in accordance with existing and any further guidelines adopted by the COP." As noted above, supported NAMAs by developing countries will be subject to international MRV "in accordance with guidelines adopted by the COP," while so-called "autonomous" mitigation actions will be verified nationally and reported in national communications every two years and subject to "international consultations and analysis under clearly defined guidelines that will ensure that national sovereignty is respected."
The Future of the Copenhagen Accord
Despite agreement on the Copenhagen Accord by the heads of state or government of more than twenty-five countries, including all of the major economies, the conference was unable to "adopt" the Accord due to objections by a small group of countries, led by Sudan, Venezuela, Bolivia, and Nicaragua, which refused to join consensus, arguing that the negotiation of the Copenhagen Accord by a smaller group represented a "coup d'état" against the United Nations because it bypassed the formal meetings. After an all-night session, the impasse was ultimately broken through a decision to "take note of" the Copenhagen Accord, giving it some status in the UNFCCC process but not as much as approval by the COP. Those countries that wish to "associate" themselves with the Copenhagen Accord are to notify the UNFCCC Secretariat for inclusion in the list of countries at the beginning of the Accord.
As of February 10, 2010, the UNFCCC Secretariat had received submissions from more than ninety countries, representing more than 80% of global greenhouse gas (GHG) emissions, regarding their plans to reduce their GHG emissions and/or their wish to be "associated" with the Copenhagen Accord. In many cases, countries providing information on their mitigation actions have expressly "associated" themselves with the Copenhagen Accord, but a number of countries - most notably China, India, Brazil, and South Africa - did not do so expressly.
The Copenhagen Accord asserts that it will be "operational immediately," but fully operationalizing its terms will require further acts – for example, the spelling out of the guidelines for international consultation and analysis of developing country mitigation actions, and the establishment of the various bodies envisioned in the Accord (a High Level Panel to study potential sources of revenue, the Copenhagen Green Climate Fund, and a new Technology Mechanism). Ordinarily, this work would be carried out by the COP. But if some countries continue to block consensus in the COP, as occurred in Copenhagen, then this elaboration of the Copenhagen Accord might need to be done by the "associators" group.
Conclusion
Although the Copenhagen Accord has been criticized by some as inadequate, it represents a potentially significant breakthrough. True, the emission reduction pledges announced thus far do not put the world on a pathway to limiting climate change to 2° C, the ostensible long-term goal of the Accord.[5] But the participating states did agree to list their national actions internationally and to subject their actions to some form of international scrutiny, even when their actions do not receive any international support. Plus, the Accord articulates a quantified long-term goal for the first time (no more than 2° C temperature increase) and puts significant new funds on the table, both for the short and medium terms.
As a political necessity, the Copenhagen Accord continues to reflect the principle of common but differentiated responsibilities and respective capabilities, but in a very different manner than in Kyoto. Developed countries committed to implement economy-wide emission reduction "targets," subject to international MRV, while developing country "actions" will be subject to international MRV only if they receive international support and to national MRV otherwise. Nevertheless, the Copenhagen Accord reflects an apparent shift by China, India, Brazil, and South Africa, which begins to break the so-called "firewall" between developed and developing countries. For the first time, major developing countries have agreed to reflect their national emission reduction pledges in an international instrument, to report on their GHG inventories and their mitigation actions in biennial national communications, and to subject their actions either to MRV (for internationally supported actions) or "international consultation and analysis under clearly defined guidelines that will ensure that national sovereignty is respected" (for domestically supported actions).
This outcome may seem like a rather modest achievement, but it represents some measure of "internationalization" of developing country actions. In any event, if world leaders could not agree to more through direct negotiations, under an intense international spotlight, it is hard to see why mid-level negotiators will be able to achieve more anytime soon. As a result, the Copenhagen Accord may well represent the high-water mark of the climate change regime for some time to come.
Endnotes
[1] United Nations Framework Convention on Climate Change, May 9, 1992, 31 I.L.M. 849 (1992) [hereinafter UNFCCC].
[2] Kyoto Protocol to the United Nations Framework Convention on Climate Change, UNFCCC Conference of the Parties, 3d Sess., UN Doc. FCCC/CP/1997/L.7/Add.1 (Dec. 10, 1997), 37 I.L.M. 22 (1998).
[3] The Copenhagen Conference was a combined meeting of the Fifteen Conference of the Parties of the UNFCCC (COP-15) and the Fifth Meeting of the Parties of the Kyoto Protocol (CMP-5). For background on the Copenhagen Conference, see Cymie R. Payne, State of Play: Changing Climate at Copenhagen, ASIL INSIGHT, Dec. 8, 2009, available at http://www.asil.org/files/insight091208pdf.pdf.
[4] The Copenhagen Accord, http://unfccc.int/files/meetings/cop_15/application/pdf/cop15_cph_auv.pdf (advance unedited version).
[5] Kelly Levin & Rob Bradley, Comparability of Annex I Emission Reduction Pledges (World Resources Institute, Working Paper, Feb. 2010).
(本篇由助教發布)
The WTO Seal Products Dispute: A Preview of the Key Legal Issues
The WTO Seal Products Dispute: A Preview of the Key Legal Issues
By Simon Lester
ASIL Insight
January 13, 2010
Volume 14, Issue 2
Available at http://www.asil.org/insights100113.cfm
The recent adoption by the European Parliament and Council of a Regulation banning marketing and importation of all seal products from commercial hunting[1] has triggered open opposition by Canada, Norway, and other countries with seal hunting traditions. Canada requested dispute settlement consultations under the World Trade Organization (WTO) Agreement concerning this legislation – the WTO’s 400th trade dispute – and was quickly joined by Norway.[2]
It is hard not to be emotional about the underlying issues, whichever side you may be on. For those supporting the ban, it is an important step against the cruel and inhumane practice of clubbing seals to death. But for those who hunt seals, the hunt is their livelihood, and they claim it is practiced in a manner that makes every effort to be responsible and is no worse than many other common practices related to killing animals.
Background
The debate over trade in seal products has been ongoing since the 1980s, when the European Council (EC) adopted a Directive banning importation of seal pups’ skins and related products, and Canada ended commercial hunting of “whitecoat” seal pups.[3] The latest EU ban, which covers all products of commercial seal hunting, and the recent WTO consultation requests filed in response, may open a new chapter in the debate. As the chances of adjudication in the WTO’s dispute settlement system increase, the role of WTO law becomes more important. There is still time for negotiation. Indeed, the complainants’ preferred option may be to reach a compromise settlement with the EU on these issues; for example, the parties could reach agreement on humane standards for harvesting seals, thus allowing the export of seal products to the EU as long as the standards are met. Nonetheless, as the consultation process moves forward, it is worth examining the relevant WTO law.
WTO Provisions
The key provisions cited in the requests for consultations are the following: General Agreement on Tariffs and Trade (GATT) Article XI:1 (Import Restrictions); GATT Article I:1 (Most Favored Nation Treatment); GATT Article III:4 (National Treatment); Agreement on Technical Barriers to Trade (TBT Agreement) Article 2.1 (National Treatment and Most Favored Nation Treatment); and TBT Agreement Article 2.2 (Necessity). In addition, the European Union is almost certain to invoke some of the exceptions in GATT Article XX as a defense, most likely sub-paragraph (a) (public morals), sub-paragraph (b) (the part related to animal health), or sub-paragraph (g) (conservation of exhaustible natural resources).
A full analysis of all of the legal issues involved would require a review of some very detailed WTO jurisprudence, and is thus beyond the scope of this piece. However, it is possible to briefly introduce some of the key legal considerations at the heart of the case.
Non-discrimination
An important question in this case is whether the EU ban discriminates against (or among) foreign products. This issue arises under TBT Agreement Article 2.1, GATT Articles I: 1 and III:4, and the GATT Article XX introductory clause.
The principle of non-discrimination is at the core of WTO rules. At first glance, the EU ban seems consistent with this principle, as it is neutral on its face. It does not single out “foreign” or ”imported” products, but rather applies to all products, regardless of their country of origin. In practice, however, the impact of the ban will fall most heavily upon foreign entities, in particular those of Canada and Norway. Moreover, the law’s impact on some foreign entities looks even more significant when it is pointed out that the EU does not ban bullfighting or other arguably similar cruel or inhumane practices involving livestock or other animals. The question might be raised why the EU did not pass a broad animal welfare law that sets out rules for both foreign and domestic products, instead of focusing only on the narrow sub-category of seal products, a sub-category made up almost exclusively of foreign goods.
Necessity of the Measure
A second overarching legal issue is whether the ban is necessary to achieve the EU’s animal welfare goals. Considerations of necessity arise under TBT Agreement Article 2.2, as well as affirmative defenses under GATT Articles XX (a), for measures necessary to protect public morals, and XX (b), for measures necessary to protect human, animal, or plant life or health.
Under the necessity provisions, adjudicators will weigh the measure’s contribution to its goals against its negative impact on trade. A question that might arise in this regard is whether there is a less onerous measure that would accomplish the same policy goals without affecting trade as much. For example, instead of a ban, the EU could label seal products to inform consumers about the harms to seals, thus allowing the consumers to make an informed purchasing decision (this alternative was proposed during the EU parliamentary debate on the measure). The exemption for products of seal hunting by Inuits[4] or non-profit entities also may call into question the contribution the measure makes to its purported goals.
As an additional point, if the EU argues that its ban is justified under GATT Article XX (a) or (b), a WTO panel could be faced with the difficult task of determining whether an importing WTO Member can justify import bans reacting to events occurring outside its own territory. And if the WTO were to accept the EU’s justification for an import ban on seal products based on EU consumers’ moral concerns about seal harvesting practices abroad, then what happens if a WTO Member’s law punishes imports from countries that do not legally guarantee labor rights based on moral concerns?
Issues under the TBT Agreement
The TBT Agreement is a relatively new trade agreement with little jurisprudence to help explain the scope of its provisions. As a result, the likely outcome of claims under this Agreement is difficult to assess. One initial consideration is whether the Agreement even applies, as the EU may argue that the seal products ban is not a “technical regulation” that is covered by the Agreement.
Assuming the TBT Agreement applies, a systemic issue that may be of importance in this case is the relationship between GATT Article XX and the TBT Agreement. While the TBT Agreement establishes non-discrimination as an obligation, the TBT Agreement (unlike the GATT) does not have an exception for health/environment/public morals measures. Instead, it establishes a separate obligation related to measures used for these purposes. Thus, instead of the rule-exception framework of GATT Articles I and III, on the one hand, and GATT Article XX, on the other hand, the TBT Agreement appears to set out two separate rules: one rule requiring most-favored nation/national treatment and another rule requiring that measures be no more trade-restrictive than necessary.
One result of this structure is that the TBT Agreement, unlike the GATT, appears to provide no legal shelter for measures that deny national treatment. Thus, where under the GATT a national treatment violation could be defended under GATT Article XX, under the TBT Agreement no such defense exists. At first glance, it appears that the TBT Agreement rules are much stricter. However, it may be worth noting the following preambular language in the TBT Agreement:
Recognizing that no country should be prevented from taking measures necessary to ensure the quality of its exports, or for the protection of human, animal or plant life or health, of the environment, or for the prevention of deceptive practices, at the levels it considers appropriate, subject to the requirement that they are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail or a disguised restriction on international trade, and are otherwise in accordance with the provisions of this Agreement.
While this language does not create an obligation, it does “recognize” that certain measures should not be prevented. In this regard, it loosely tracks the language of GATT Article XX, including the sub-paragraphs that allow countries to pursue specific policies, as well as the non-discrimination requirement of the Article XX introductory clause (the “chapeau”). In particular, the preambular language refers to measures “necessary . . . for the protection of human, animal or plant life or health, of the environment”—similar to the language of Articles XX(b) and (g)—and “the requirement that they are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail or a disguised restriction on international trade” (the language of Article XX’s introductory clause). In a sense, the language reads like an exception, although the use of the terms “should” and “recognize” appears to prevent it from being operative. Thus, a key question in the seal products dispute may be, what impact does this language have on the interpretation of the TBT Agreement obligations?[5]
Conclusions
One might expect that core WTO principles, such as non-discrimination and necessity, would have clear legal standards. However, trade adjudicators have gone back and forth over the years on the issue of non-discrimination, while the “necessity” standard has evolved and has yet to be examined in the TBT Agreement context. There is a great deal of uncertainty as to how a WTO panel would address these issues in the context of the seal products ban in dispute. Thus, the outcome of a panel dispute would be far from sure.
In addition to all of the legal arguments, a more general question underlying this dispute is the following: To what extent should WTO rules intrude into the domestic policies of member governments? Most people can see the connection to trade of an explicitly discriminatory measure that says, for example, “foreign products are not allowed.” However, when a WTO panel rules on laws that are nominally origin-neutral, like the seal products ban, a finding of WTO-inconsistency may be viewed as meddling in domestic regulation, undercutting the WTO’s legitimacy. It would matter very much how a WTO panel hearing this case approached its review. Any ruling that this ban violates WTO rules should be spelled out in plain and simple terms that ordinary people can understand, and not buried in legal jargon. Otherwise, the strong emotions of the case may rise up to overshadow and undermine the legal aspects.
Along with the relationship between WTO law and domestic regulatory autonomy, the panel may also have to navigate the connection between WTO law and international law. For example, in support of arguments that the ban is not justified, the complainants may emphasize the role of international agreements in the protection of animal welfare. In the absence of such agreements on seal hunting, the claimants may argue that unilateral trade action is not permitted. Addressing such international law issues in GATT/WTO dispute settlement has been controversial in the past and is likely to be so here as well.
As a final point, given the legal uncertainties and the sensitive issues involved, it is possible that “politics” could play an important role as well. In this regard, it may be worth recalling a dispute between Canada and the EU from a few years ago with similar legal claims and sensitivities: the EC - Asbestos[6] dispute, which involved an EU ban on certain asbestos products. There, Canada’s legal claims were rejected. However, a good deal of legal uncertainty remained even after the panel and Appellate Body reports were circulated.[7] While the cases have a number of differences, and thus drawing guidance from Asbestos should be done with caution, one lesson may be the following: when confronted with difficult legal issues, in a situation where the legitimacy of the WTO might be called into question, the panelists hearing a case will almost certainly feel the pull of “politics,” as much as they may try their best to ignore it.
Endnotes
[1] See European Parliament and Council Regulation (EC) 1007/2009, 2009 O.J. (L286) 36, available at http://trade.ec.europa.eu/doclib/docs/2009/november/tradoc_145264.pdf.
[2] Request for Consultations by Canada, European Communities - Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/1 (Nov. 2, 2009); Request for Consultations by Norway, European Communities-Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS401/1 (Nov. 5, 2009). Canada requested WTO consultations two years ago in relation to import bans of Belgium and the Netherlands (which are now pre-empted by Regulation (EC) No. 1007/2009). See Request for Consultations by Canada, European Communities - Certain Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS369/1 (Sept. 25, 2007).
[3] Council Directive 83/129, 1983 O.J. (L 91) 30 (EEC). Similar concerns have been raised in the past with respect to the long-standing U.S. ban on sale or importation of any seal products. See Request by Inuit Circumpolar Conference to Have the U.S. Import Ban on Marine Mammal Products Removed, available at http://www.highnorth.no/Library/Trade/GATT_WTO/re-to-h.htm; for a legal analysis of the United States’ bans consistency with the GATT carried out by a Canadian law professor, see TED L. MCDORMAN, HIGH NORTH ALLIANCE, THE GATT CONSISTENCY OF THE U.S. U.S. IMPORT EMBARGO ON HARP-SEAL FUR COATS FROM GREENLAND (2007), available at http://www.highnorth.no/Library/Trade/GATT_WTO/th-ga-co.htm.
[4] Inuit is a term for a group of culturally similar indigenous peoples inhabiting the Arctic regions of Canada, Greenland, Russia, and the United States.
[5] See Appellate Body Report, China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, ¶¶ 205-233, WT/DS363/AB/R (Dec. 21, 2009). In this decision, the Appellate Body concluded that Article XX was available outside the context of the GATT, as it applied this provision to China’s Accession Protocol. This result probably gives some hope to those who would like to apply Article XX to the TBT Agreement, although the specific textual language differs.
[6] Appellate Body Report, European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R (Apr. 5, 2001).
[7] For example, the TBT Agreement claims were never addressed on their substance, and the Appellate Body’s reversal of the GATT Article III:4 claims pushed the jurisprudence in a very different direction than the panel had gone.
(本篇由助教發布)
By Simon Lester
ASIL Insight
January 13, 2010
Volume 14, Issue 2
Available at http://www.asil.org/insights100113.cfm
The recent adoption by the European Parliament and Council of a Regulation banning marketing and importation of all seal products from commercial hunting[1] has triggered open opposition by Canada, Norway, and other countries with seal hunting traditions. Canada requested dispute settlement consultations under the World Trade Organization (WTO) Agreement concerning this legislation – the WTO’s 400th trade dispute – and was quickly joined by Norway.[2]
It is hard not to be emotional about the underlying issues, whichever side you may be on. For those supporting the ban, it is an important step against the cruel and inhumane practice of clubbing seals to death. But for those who hunt seals, the hunt is their livelihood, and they claim it is practiced in a manner that makes every effort to be responsible and is no worse than many other common practices related to killing animals.
Background
The debate over trade in seal products has been ongoing since the 1980s, when the European Council (EC) adopted a Directive banning importation of seal pups’ skins and related products, and Canada ended commercial hunting of “whitecoat” seal pups.[3] The latest EU ban, which covers all products of commercial seal hunting, and the recent WTO consultation requests filed in response, may open a new chapter in the debate. As the chances of adjudication in the WTO’s dispute settlement system increase, the role of WTO law becomes more important. There is still time for negotiation. Indeed, the complainants’ preferred option may be to reach a compromise settlement with the EU on these issues; for example, the parties could reach agreement on humane standards for harvesting seals, thus allowing the export of seal products to the EU as long as the standards are met. Nonetheless, as the consultation process moves forward, it is worth examining the relevant WTO law.
WTO Provisions
The key provisions cited in the requests for consultations are the following: General Agreement on Tariffs and Trade (GATT) Article XI:1 (Import Restrictions); GATT Article I:1 (Most Favored Nation Treatment); GATT Article III:4 (National Treatment); Agreement on Technical Barriers to Trade (TBT Agreement) Article 2.1 (National Treatment and Most Favored Nation Treatment); and TBT Agreement Article 2.2 (Necessity). In addition, the European Union is almost certain to invoke some of the exceptions in GATT Article XX as a defense, most likely sub-paragraph (a) (public morals), sub-paragraph (b) (the part related to animal health), or sub-paragraph (g) (conservation of exhaustible natural resources).
A full analysis of all of the legal issues involved would require a review of some very detailed WTO jurisprudence, and is thus beyond the scope of this piece. However, it is possible to briefly introduce some of the key legal considerations at the heart of the case.
Non-discrimination
An important question in this case is whether the EU ban discriminates against (or among) foreign products. This issue arises under TBT Agreement Article 2.1, GATT Articles I: 1 and III:4, and the GATT Article XX introductory clause.
The principle of non-discrimination is at the core of WTO rules. At first glance, the EU ban seems consistent with this principle, as it is neutral on its face. It does not single out “foreign” or ”imported” products, but rather applies to all products, regardless of their country of origin. In practice, however, the impact of the ban will fall most heavily upon foreign entities, in particular those of Canada and Norway. Moreover, the law’s impact on some foreign entities looks even more significant when it is pointed out that the EU does not ban bullfighting or other arguably similar cruel or inhumane practices involving livestock or other animals. The question might be raised why the EU did not pass a broad animal welfare law that sets out rules for both foreign and domestic products, instead of focusing only on the narrow sub-category of seal products, a sub-category made up almost exclusively of foreign goods.
Necessity of the Measure
A second overarching legal issue is whether the ban is necessary to achieve the EU’s animal welfare goals. Considerations of necessity arise under TBT Agreement Article 2.2, as well as affirmative defenses under GATT Articles XX (a), for measures necessary to protect public morals, and XX (b), for measures necessary to protect human, animal, or plant life or health.
Under the necessity provisions, adjudicators will weigh the measure’s contribution to its goals against its negative impact on trade. A question that might arise in this regard is whether there is a less onerous measure that would accomplish the same policy goals without affecting trade as much. For example, instead of a ban, the EU could label seal products to inform consumers about the harms to seals, thus allowing the consumers to make an informed purchasing decision (this alternative was proposed during the EU parliamentary debate on the measure). The exemption for products of seal hunting by Inuits[4] or non-profit entities also may call into question the contribution the measure makes to its purported goals.
As an additional point, if the EU argues that its ban is justified under GATT Article XX (a) or (b), a WTO panel could be faced with the difficult task of determining whether an importing WTO Member can justify import bans reacting to events occurring outside its own territory. And if the WTO were to accept the EU’s justification for an import ban on seal products based on EU consumers’ moral concerns about seal harvesting practices abroad, then what happens if a WTO Member’s law punishes imports from countries that do not legally guarantee labor rights based on moral concerns?
Issues under the TBT Agreement
The TBT Agreement is a relatively new trade agreement with little jurisprudence to help explain the scope of its provisions. As a result, the likely outcome of claims under this Agreement is difficult to assess. One initial consideration is whether the Agreement even applies, as the EU may argue that the seal products ban is not a “technical regulation” that is covered by the Agreement.
Assuming the TBT Agreement applies, a systemic issue that may be of importance in this case is the relationship between GATT Article XX and the TBT Agreement. While the TBT Agreement establishes non-discrimination as an obligation, the TBT Agreement (unlike the GATT) does not have an exception for health/environment/public morals measures. Instead, it establishes a separate obligation related to measures used for these purposes. Thus, instead of the rule-exception framework of GATT Articles I and III, on the one hand, and GATT Article XX, on the other hand, the TBT Agreement appears to set out two separate rules: one rule requiring most-favored nation/national treatment and another rule requiring that measures be no more trade-restrictive than necessary.
One result of this structure is that the TBT Agreement, unlike the GATT, appears to provide no legal shelter for measures that deny national treatment. Thus, where under the GATT a national treatment violation could be defended under GATT Article XX, under the TBT Agreement no such defense exists. At first glance, it appears that the TBT Agreement rules are much stricter. However, it may be worth noting the following preambular language in the TBT Agreement:
Recognizing that no country should be prevented from taking measures necessary to ensure the quality of its exports, or for the protection of human, animal or plant life or health, of the environment, or for the prevention of deceptive practices, at the levels it considers appropriate, subject to the requirement that they are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail or a disguised restriction on international trade, and are otherwise in accordance with the provisions of this Agreement.
While this language does not create an obligation, it does “recognize” that certain measures should not be prevented. In this regard, it loosely tracks the language of GATT Article XX, including the sub-paragraphs that allow countries to pursue specific policies, as well as the non-discrimination requirement of the Article XX introductory clause (the “chapeau”). In particular, the preambular language refers to measures “necessary . . . for the protection of human, animal or plant life or health, of the environment”—similar to the language of Articles XX(b) and (g)—and “the requirement that they are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail or a disguised restriction on international trade” (the language of Article XX’s introductory clause). In a sense, the language reads like an exception, although the use of the terms “should” and “recognize” appears to prevent it from being operative. Thus, a key question in the seal products dispute may be, what impact does this language have on the interpretation of the TBT Agreement obligations?[5]
Conclusions
One might expect that core WTO principles, such as non-discrimination and necessity, would have clear legal standards. However, trade adjudicators have gone back and forth over the years on the issue of non-discrimination, while the “necessity” standard has evolved and has yet to be examined in the TBT Agreement context. There is a great deal of uncertainty as to how a WTO panel would address these issues in the context of the seal products ban in dispute. Thus, the outcome of a panel dispute would be far from sure.
In addition to all of the legal arguments, a more general question underlying this dispute is the following: To what extent should WTO rules intrude into the domestic policies of member governments? Most people can see the connection to trade of an explicitly discriminatory measure that says, for example, “foreign products are not allowed.” However, when a WTO panel rules on laws that are nominally origin-neutral, like the seal products ban, a finding of WTO-inconsistency may be viewed as meddling in domestic regulation, undercutting the WTO’s legitimacy. It would matter very much how a WTO panel hearing this case approached its review. Any ruling that this ban violates WTO rules should be spelled out in plain and simple terms that ordinary people can understand, and not buried in legal jargon. Otherwise, the strong emotions of the case may rise up to overshadow and undermine the legal aspects.
Along with the relationship between WTO law and domestic regulatory autonomy, the panel may also have to navigate the connection between WTO law and international law. For example, in support of arguments that the ban is not justified, the complainants may emphasize the role of international agreements in the protection of animal welfare. In the absence of such agreements on seal hunting, the claimants may argue that unilateral trade action is not permitted. Addressing such international law issues in GATT/WTO dispute settlement has been controversial in the past and is likely to be so here as well.
As a final point, given the legal uncertainties and the sensitive issues involved, it is possible that “politics” could play an important role as well. In this regard, it may be worth recalling a dispute between Canada and the EU from a few years ago with similar legal claims and sensitivities: the EC - Asbestos[6] dispute, which involved an EU ban on certain asbestos products. There, Canada’s legal claims were rejected. However, a good deal of legal uncertainty remained even after the panel and Appellate Body reports were circulated.[7] While the cases have a number of differences, and thus drawing guidance from Asbestos should be done with caution, one lesson may be the following: when confronted with difficult legal issues, in a situation where the legitimacy of the WTO might be called into question, the panelists hearing a case will almost certainly feel the pull of “politics,” as much as they may try their best to ignore it.
Endnotes
[1] See European Parliament and Council Regulation (EC) 1007/2009, 2009 O.J. (L286) 36, available at http://trade.ec.europa.eu/doclib/docs/2009/november/tradoc_145264.pdf.
[2] Request for Consultations by Canada, European Communities - Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/1 (Nov. 2, 2009); Request for Consultations by Norway, European Communities-Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS401/1 (Nov. 5, 2009). Canada requested WTO consultations two years ago in relation to import bans of Belgium and the Netherlands (which are now pre-empted by Regulation (EC) No. 1007/2009). See Request for Consultations by Canada, European Communities - Certain Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS369/1 (Sept. 25, 2007).
[3] Council Directive 83/129, 1983 O.J. (L 91) 30 (EEC). Similar concerns have been raised in the past with respect to the long-standing U.S. ban on sale or importation of any seal products. See Request by Inuit Circumpolar Conference to Have the U.S. Import Ban on Marine Mammal Products Removed, available at http://www.highnorth.no/Library/Trade/GATT_WTO/re-to-h.htm; for a legal analysis of the United States’ bans consistency with the GATT carried out by a Canadian law professor, see TED L. MCDORMAN, HIGH NORTH ALLIANCE, THE GATT CONSISTENCY OF THE U.S. U.S. IMPORT EMBARGO ON HARP-SEAL FUR COATS FROM GREENLAND (2007), available at http://www.highnorth.no/Library/Trade/GATT_WTO/th-ga-co.htm.
[4] Inuit is a term for a group of culturally similar indigenous peoples inhabiting the Arctic regions of Canada, Greenland, Russia, and the United States.
[5] See Appellate Body Report, China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, ¶¶ 205-233, WT/DS363/AB/R (Dec. 21, 2009). In this decision, the Appellate Body concluded that Article XX was available outside the context of the GATT, as it applied this provision to China’s Accession Protocol. This result probably gives some hope to those who would like to apply Article XX to the TBT Agreement, although the specific textual language differs.
[6] Appellate Body Report, European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R (Apr. 5, 2001).
[7] For example, the TBT Agreement claims were never addressed on their substance, and the Appellate Body’s reversal of the GATT Article III:4 claims pushed the jurisprudence in a very different direction than the panel had gone.
(本篇由助教發布)
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