Thursday, May 19, 2005

The ICJ v. WTO: The EU's Compliance with One Treaty May Violate Another

Here is a neat international law puzzle. Caricom, a trade association including most Caribbean nations, is threatening to bring an action against the EU in the International Court of Justice for violating its agreements to support the Caribbean sugar industries by purchasing their sugar at preferential prices. The catch? The reason the EU is changing its policy is mostly as a result of a recent WTO decision finding its sugar preference system in violation of the WTO rules. The EU can't win here, it seems. So what should the legal effect of this provision of the updated EU-African Caribbean Producers agreement be?

Conflict between this Agreement and other treaties

No treaty, convention, agreement or arrangement of any kind between one or more Member States of the Community and one or more ACP States may impede the implementation of this Agreement.

There is traditionally a last in time rule for treaties, with the later in time treaty prevailing over the earlier in time one. This would seem to favor the EU-ACP Treaty since it entered into force in 2000, 6 years after the WTO Agreement. Strangely enough, then, it appears the Caribbean countries have a case.

Which doesn't mean they will win anything. The ICJ is unlikely to have jurisdiction here, and even if they did, I wonder if the EU countries will choose to comply with the sanction-less ICJ over the sanction-empowered WTO. Still, it is an interesting example of what may be a more and more common phenomenon in coming years: conflicts between countries' international treaties and conflicts between the dispute resolution systems that resolve them.


Blogger Peggy McGuinness said...


One point of clarification: I understand the Vienna Convention on Treaties to apply a later in time rule only to successive treaties between the parties on the same subject matter. (And it is, in any event, a different rule of interpretation than the later in time rule of statutory interpretation in the US system.) So the first question here would be whether the Cotonou Treaty and the GATT are of the "same subbject matter." My guess is the answer is no: one is aimed at economic assistance and development, the other at reducing trade barriers. It therefore may be an even more complicated question of conflicting obligations. Of course, as you note, the EU can be held to be in breach of one treaty while at the same time meeting its obligations under antoher. But the EU-ACP subisdies arrangements have been held inconsistent with the GATT before (See, e.g., the Banana wars cases) and the ACP countries took their lumps because they had to. My guess is that will be the outcome here.

Chris knows far more about the perplexing question of treaty conflicts than I (See his March 3 post "Is It Unlawful to Breach a Treaty?".) Perhaps he can weigh in when he is back on line.

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