This is a guest post from Geneva trade lawyer Adarsh Ramanujan:
‘Interpretation’ of the scientific standards? Thoughts about India – Agricultural Products
I finally got around to reading the AB Report released earlier in June in the India – Agricultural Products. I found one of the claims raised by India to be very interesting and I thought it may be worth sharing and exploring some of them.
The OIE standards, which are considered to embody the international standards for certain products in the Annex to the SPS Agreement, played a crucial part in this dispute. The complainant had relied on these standards as providing the international benchmark of SPS measures for 8 of the 10 products covered by the Indian measure under challenge. At the Panel, some dispute arose as to the meaning and understanding of the OIE standards and India raised one or more claims on the Panel’s approach to settling this dispute.
Here’s the relevant part of India’s claim I am talking about:
“…Further, it also acted inconsistently with Article 3.2 of the DSU by not interpreting the OIE Code in accordance with the customary principles of international law as codified in Article 31 and Article 32 of the VCLT” (para 8(b), India’s Notice of Appeal).
“India further argues that the Panel failed to conduct its assessment of the meaning of the OIE Code in accordance with customary rules of treaty interpretation. According to India, because the OIE Code is the international standard for the purposes of Article 3 of the SPS Agreement, it "forms the relevant context for interpretation of Article 3.1 and Article 3.2 of the SPS Agreement". The OIE Code, India adds, must therefore be interpreted in accordance with customary rules of treaty interpretation, as prescribed by Article 3.2 of the DSU. India maintains that, although it repeatedly urged the Panel to interpret the OIE Code in accordance with customary principles of treaty interpretation, the Panel disregarded its argument and therefore acted inconsistently with Article 11 of the DSU.” (Emphasis added in bold)
After clarifying that India has only raised an Article 11 DSU claim in this specific respect, here is what the AB appears to rule on this specific claim:
“5.98. To begin with, we are not persuaded by India's contention that the Panel's failure to refer to India's argument that the OIE Code must be interpreted in accordance with customary rules of treaty interpretation leads to a violation of Article 11 of the DSU. A panel is not required to identify or address every argument advanced by a party….Apart from noting that the Panel did not expressly address its argument, we do not see that India has explained how this alleged error is so material that it constitutes a breach of the Panel's duties under Article 11. We also do not consider that India has sufficiently defined the contours of this aspect of its claim.
5.99. In addition, India has not demonstrated why or how the Panel's analysis departed from a proper application of the interpretative rules India relies upon, or how, if properly applied, such rules would have produced a different outcome regarding the meaning of the OIE Code…Thus, in assessing the Panel's reasoning and conclusions in connection with India's claims, we have not identified any legal error, and India has not, in our view, demonstrated what interpretative error the Panel allegedly committed that resulted in an incorrect understanding of Chapter 10.4 of the OIE Code.” (Emphasis supplied in bold)
India’s claim appears to be dismissed for failure to satisfy the Article 11 threshold. What if India had instead raised it as a claim of legal error rather than an Article 11 claim? Then comes the interesting question of how one must interpret the terms used in the OIE code. India’s claim appears to be that since the OIE code must be interpreted in accordance with the Vienna Convention because it forms relevant context to the SPS Agreement. I am not entirely sure that I understand the logic of this argument – Article 3.2 DSU requires the SPS Agreement to be interpreted as per customary international law (i.e. Vienna Convention), which refers to interpreting a treaty provision in the light of various contextual elements, but Article 31 of the Vienna Convention itself does not talk about how to interpret such contextual elements.
However, the real question, in my opinion is how does one interpret the OIE code? Is this a matter of fact or a matter of law? The actual instrument designated as a ‘treaty’ is the 1924 International Agreement for the Creation of an Office International Des Epizooties in Paris, though this does not refer to standard-setting. A further initial study of the OIE, its organisation and its codes suggest that the relevant codes are developed by specific committees and working groups and adopted by all the Member countries through consensus or 2/3rds majority. Prima facie, the OIE Codes do not appear to satisfy the requirement of a ‘treaty’ for the purposes of the Vienna Convention. Given the background and the context in which the OIE codes are prepared, it seems unreasonable to call them legal instruments and apply customary rules of treaty interpretation to such codes.
This would imply that the interpretation of the OIE codes is only a matter of fact. Nonetheless, would the fact that the OIE codes are referred to within the SPS Agreement automatically make the interpretation of the OIE codes a matter of law? In that respect, would this be different from the situation where the entire contents of the OIE codes are deemed to form part of the SPS Agreement? Take the example of the Schedule of Commitments to the GATT. The classification of the goods mentioned in the Schedule of Commitments is borrowed from the HSN. Existing jurisprudence suggests that the Schedule of Commitments is considered to be part of GATT (which is a treaty) and the use of customary rules of interpretation extends to the terms used within the schedule of commitments. Would this logic extend to the terms used in the OIE codes? Would the answer to this question depend on whether the terms used in the OIE codes are deemed to form part of the SPS Agreement by way of incorporation?
I would welcome any thoughts on this issue that seems to have piqued my interest.
