On Saturday, the WTO joined three other international organizations in issuing a Statement about the H1NI virus. The other three IGOs were the FAO, the OIE, and the WHO.
The Statement can be found at http://www.wto.org/english/news_e/news09_e/jt_stat_02may09_e.htm.
According to the Statement: "To date there is no evidence that the virus is transmitted by food. There is currently therefore no justification in the OIE Terrestrial Animal Health Standards Code for the imposition of trade measures on the importation of pigs or their products."
The Statement, which is obviously intended to be normative, led me to reflect on a number of interconnected issues.
First, is this Statement international trade law? Could it be used in a WTO dispute to preclude a defense to a trade measure on pigs if one were challenged in the WTO?
Second, if the Statement is law, is it within the competence of the WTO to state? Previously, I was not aware that the WTO had any competence for public health. I would also doubt that the WTO has any expertise on the OIE Standards Code.
Third, if the Statement is law, what authority did the WTO use to join it? Did the WTO enact it under WTO Agreement Article V:1 authority? If so, does that make the Statement a covered agreement?
If the Statement is not hard law, but rather only soft law, then there is still a question of what authority the WTO used to join it. Was it Article III:2 authority?
Fourth, whatever level of normativity the Statement has, what internal procedures were used within the WTO to agree to it? I see that there was a General Council meeting on April 30 so perhaps the General Council approved the Statement under Article IX:1 authority. Unfortunately, the WTO remains (to use Pascal Lamy's word) "medieval" in its transparency practices, and there are not minutes available for the General Council meeting. Indeed, there is not even an agenda posted as of May 4. I also looked on the WTO website to see if there was any advance notice of the proposal to enact the Statement and I didn't see any. There was also not any request for public comment. So it seems that once again, the WTO does not use the best practices for administrative procedure that it demands of its Members under the covered agreements.
Fifth, would be the implications if the WTO Secretariat did not receive permission from the General Council before signing this Statement in the name of the WTO? I would hope that the SPS Committee at least signed off on the action by the WTO to the Statement. Did it? It would seem very troubling if someone in the Secretariat can join agreements with other international organizations in the name of the WTO without Member approval. Given this episode as a precedent, could the WTO join an ILO Statement about the need for fundamental worker rights or a UNFCCC Statement about the need for emissions reduction?
Finally, what liability does the WTO have if the Statement proves to be wrong. Suppose we do learn that pigs or pig products transmit the virus and a state held off on measures upon the advice of the WTO. Would the WTO have responsibility for the harm caused to that state? What the State be able to bring a lawsuit against the WTO in its municipal courts? Ordinarily, one would think the WTO would have immunity under Article VIII:4. But does that apply if the WTO action lacks any legal justification under its own rules?