Among the reasons I was positive about the choice of Roberto Azevedo as WTO DG was his extensive experience with the dispute settlement process in the WTO, perhaps its most important and certainly most successful function today. I was very surprised by a recent report in an Indian newspaper that Azevedo has stated that India's food security law will place it in violation of the Agreement on Agriculture. The report is here (The Hindu, Oct. 7): bit.ly/15iDo16. Perhaps the report is inaccurate, or the DG was merely stating that some WTO Members had raised issues about the law or that a request for consultations or a panel was immiment.Such a statement of notorious fact would of course be entirely innocuous. What, however, would be much more serious is if, as the article literally states, Azevdo "assert[s]" that a particular measure of a particular Member "breach[es]" its obligations under a covered Agreement. Article 23 places an obligation on WTO Members to make determinations of whether WTO rules have been violated only through resort to the DS procedures. Granted 23 does not bind the DG, but unilateral determinations by the DG that a measure of a Member is in breach do not sit well with the spirit of 23.
I suppose that a panel or the AB could simply ignore a statement by the DG that a Member has breached its obligations. But after the head of the WTO has already pronounced on the facts and the law, could the Member really be confident that they would get a fair trial in the dispute settlement system?
Some years ago, I was concerned when Pascal Lamy starting making interpretations of AB rulings and their applicability to other situations (part of the concern there was the wildly erroneous readings he was making). But the actual statement that a specific measure by one Member violates a particular obligation under the DSU (without a dispute ruling)-Lamy to my knowledge never went that far.
If the newspaper report is inaccurate, then the DG's office should demand a correction. While I realize that for now the US would appear to be on the opposite side from India on the food security issue, the Administration should be very concerned about a precedent where the DG can go around declaring individual Members' measures illegal without, or prior to, dispute proceedings. If he were to do that in regard to US legislation, I can well imagine some difficult questions from Congress.
