多哈回合农业谈判未决议题及前景展望

农业谈判是多哈回合谈判最为关键的议题之一,各成员方分歧较大,谈判过程异常艰难。2008年12月第4版农业谈判模式修正草案体现的十项未决议题至今仍无实质性进展。WTO第9次部长级会议将于2013年年底召开。目前,仅就关税配额管理、粮食安全议题纳入磋商。多哈回合谈判中利益集团的利益博弈决定了谈判的长期性,农业在成员国的重要地位决定了谈判的复杂性,贸易自由化的世界大势决定了谈判的可期性。     

Smooth as Silk? A First Look at the Post MFA Textiles and Clothing Landscape

Despite the imposition of temporary safeguard measures on Chineseexports by both the United States and the European Union in2005, few countries other than China and India have increasedtheir clothing exports in markets where Multi-Fiber Arrangementquotas had been removed, e.g. the European Union, the UnitesStates, and Canada. This article argues that the eliminationof import quotas has exposed the vulnerability of fragmentedsupply chains and favoured countries able to display an integratedsupply chain, i.e. domestic production of high quality textileand clothing products. In terms of trade policy implications,the elimination of quotas has reduced the attractiveness ofoutward processing programmes and, conversely, increased theattractiveness of other preferential trade arrangements, suchas regional trade arrangements and the Generalized System ofPreferences. The July 2006 postponement of the Doha Round negotiationsrepresents a setback for WTO Members and, with respect to thetextile and clothing issues, widespread anxiety among supplyingcountries due to the competitive strength of China acts againsta package of significant tariff reduction applied on a most-favoured-nationbasis. To move the Doha negotiations forward, political willis required in agricultural negotiations, including a development-friendlyresolution of the problem of cotton subsidies.     

King Cotton, Developing Countries and the 'Peace Clause': The WTO's US Cotton Subsidies Decision

Although the World Trade Organization (WTO) is a powerful vehiclefor promoting economic development, the Uruguay Round has beenperceived by developing country WTO members as an unequal bargain.Especially with respect to agriculture, the Uruguay Round yieldedonly limited concessions. In September 2003, Doha Round effortsstalled at Cancún when developing countries coalescedto oppose a proposal that insufficiently liberalized trade inagriculture. In March 2005, the Dispute Settlement Body adopteda panel decision upholding Brazil’s legal challenge ofUS subsidies to cotton producers. The US Cotton Subsidies decisionrepresents a dramatic victory for Brazil and other developingcountry WTO members. The timing of the decision, coincidingwith ongoing Doha Round agriculture negotiations, ensures thatit will influence any outcome of the Round. This article examinesthe US Cotton Subsidies decision, describes the subsidy programsat issue in the dispute, reviews applicable WTO rules, and outlinesthe major findings of the panel and Appellate Body. The articleconcludes that Brazil’s victory in US Cotton Subsidiesmay represent a broader shift within the WTO away from a systemdominated by the US and EC toward a system that increasinglyis influenced by emerging market economies.     

Is the medicine right?

Is asking the Better Regulation Agenda (BRA) to answer the same preconditions it requires for any regulatory action a proper treatment? Does any assessment of the agenda necessarily imply a thorough definition of the costs and the benefits deriving from its application or is it enough to provide a few key insights to perform it? Is the BRA really so ideological, deriving from “a liberal analytical framework that considers no regulation/state intervention” as the preferred option? Is regulatory quality an issue that “cannot realistically be solved”? Does the principle of subsidiarity as a policy objective need some revision? Several questions come to mind when reading a very thought‐provoking article that is very critical of the BRA but that in the end recognises some of its main qualities.     

Giving Legal Effect to the Results of WTO Trade Negotiations: An Analysis of the Methods of Changing WTO Law

Trade negotiations conducted in the World Trade Organization(WTO) offer the significant benefit that their results can bemade legally binding and enforceable through an effective disputesettlement system. If negotiators wish to avail of this benefit,they must follow the correct procedures to give legal effectto their work. This article critically evaluates the main methodsof converting the results of WTO trade negotiations, with aparticular focus on the ongoing Doha Round, into WTO law. Itdemonstrates that amendments to the WTO agreements are procedurallycumbersome and have significant limitations. The article thereforeanalyses several alternative methods including modificationsto schedules, decisions of the Ministerial Conference (suchas waivers, authoritative interpretations, and Other Decisions),and the incorporation of new agreements into WTO law (whethermultilateral, plurilateral, or reference rules accepted throughschedules). The choice between these various methods is complicatedas each has advantages and disadvantages. By comparing and evaluatingthe available options, this article aims to assist negotiatorsand lawyers in making that difficult choice.     

"绿屋会议":WTO走出合法性危机的一道坎

备受诟病的“绿屋会议”迄今尚未得到适当改良，WFO依然深陷于合法性危机之中。介评改革“绿屋会议”的若干意见，并从负责任的发展中大国之立场出发，提出恰当可行的改良方案，对于WTO走出合法性危机和推进多哈发展回合谈判，进而抑制国际金融危机，以及塑造和谐的国际经济关系，具有重要的理论和实践意义。     

The Case for a Multilateral Agreement on Competition Policy: A Developing Country Perspective

Although the issue of trade and competition policy has beendropped from the Work Programmes of the Doha Round of WorldTrade Organization (WTO) negotiations, it continues to be discussedin other fora and may return to the WTO after the completionof the Round. This article assesses the case for an agreementfrom the perspective of developing countries. It begins by reviewingthe ‘development dimension’ of the WTO debate andthen examines three specific antitrust issues that were of considerablerelevance to developing countries but were not pursued: exportcartels, anti-dumping and intellectual property rights (IPRs).There follows a critical assessment of the empirical and theoreticalarguments for the kind of agreement that was being advocatedto deal with international cartels. Alternative proposals, involvingdeveloping countries ‘outsourcing’ antitrust enforcementto developed countries, are also sceptically examined, as isthe relevance for developing countries of the kind of competitionpolicy that is currently in place in developed countries. Finally,a general approach to international trade agreements suggeststhat developing countries had nothing to gain from the proposalthat was on the table, and the article concludes by proposinga range of more suitable alternatives.     

GATS框架下自然人流动的法律界定及缺陷分析

自然人流动是GATS规定的提供服务的一种模式,发展中国家在此领域具有天生明显的比较优势。本文在简要回顾了乌拉圭回合的自然人流动谈判历史的基础上,详细分析了GATS框架下自然人流动的法律界定问题及其缺陷。     

论地理标志权的性质

地理标志是WTO多哈回合谈判中最具争议性的知识产权议题之一。各国对地理标志采取了不同的立法保护方式,并形成了通过商标法保护地理标志和制定地理标志专门法的两种主要保护模式。与此同时,我国学术界针对当前我国对地理标志同时采用商标法和专门立法两种保护模式的做法,也有诸多争议。这些情况都充分表明,各国政府以及学术界对地理标志相关权利及其保护客体的性质尚无统一的认识。从学者提出的各种观点来看,关于地理标志的性质主要存在着公权利说,私权利说和集体权利说等几种学说。从地理标志权的权能归属以及公权与私权的划分标准等角度分析,地理标志权在本质上具有私权属性,并为特定地理区域内合格的生产者所共有。我国的地理标志制度在进一步完善的过程中应当更鲜明地体现地理标志权的私权属性,从而充分发挥地理标志制度的经济效益。     

多哈回合反倾销谈判中的从低征税规则研究

现行的从低征税规则不具有强制性,在多哈回合中成为反倾销谈判的焦点。无论是从法律上还是经济上,从低征税规则都具有合理性,《反倾销协定》中理应引入强制性的从低征税规则。尽管强制性的从低征税规则受到大部分成员方的支持,但由于受到美国的质疑,因此在《反倾销协定》中引入该规则困难重重。中国在反倾销谈判中应调整现行立场,支持强制性的从低征税规则。     

Four Lessons for Developing Countries from the Trade Negotiations Over Access to Medicines

After the Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPS) came into operation in 1995 developing countries have found themselves in a process of continual negotiation over intellectual property rights and access to medicines. These negotiations have taken place in the World Trade Organization and in the context of free trade agreements. The paper suggests that the only real win for developing countries has been the Doha Declaration on the TRIPS Agreement and Public Health in 2001. What have been the lessons for developing countries in a decade of negotiations over access to medicines? Drawing on themes of rule complexity and regulatory ritualism the paper discusses four key lessons for developing countries. It concludes by arguing that developing countries will do better if they adopt a networked governance approach to negotiation rather than continuing to rely on traditional coalition formation.     

南南联合自强五十年的国际经济立法反思──从万隆、多哈、坎昆到香港

WTO体制及其各项规则是国际经济法的一个重要组成部分。四年来举世瞩目的多哈发展回合谈判,说到底,乃是有关现行国际经贸立法进一步除旧布新的全球性多边磋商。多哈回合谈判于2001年底启动,2003年在WTO坎昆会议上因南北矛盾激化不欢而散。事后,各方又于2005年12月举行WTO香港会议,就多哈回合重启新一轮谈判,初步打破了僵局,但仍留下关键性争端难题,悬而未决。看来,2006年以内及其以后,势必又将面临另一番南北角力,前景难卜。本文根据五十年来发展中国家在南北矛盾中实行南南联合自强、力争更新国际经济立法的主要史实,并结合WTO香港会议的最新发展,以史为师,尝试探索和论证通过南南联合自强、更新国际立法的历史轨迹,指出由于“南弱北强”的实力悬殊,弱小民族要求更新国际经济立法、改变国际经济旧秩序的联合奋斗,只能在步履维艰中曲折行进,不能急于求成或盲目乐观,因此“速胜论”是缺乏足够根据的;另一方面,由于“南北依存”和“南多北寡”(得道多助,失道寡助)的时代潮流,WTO香港会议之后即使谈判再度受挫或破裂,WTO多边体制也未必就此陷于瘫痪瓦解,无须过于失望悲观,因此“瓦解论”也是缺乏足够根据的。弱小民族要求逐步更新国际经济立法,争得自身应有权益,舍韧性的南南联合自强,别无他途可循。     

略论中国在WTO争端解决机制中的角色转换

虽然目前多哈回合谈判进程严重受挫,但这并不意味着与争端解决机制的重要性将逐渐降低,只要WTO继续存在,其争端解决机制仍必将继续在整个WTO多边贸易体制中占据至关重要的地位。中国已于2006年12月11日迎来了入世五周年,因而非常有必要从各个方面加以回顾、总结和展望。但这五年来,中国未能在争端解决机制中扮演重要的角色。本文对有关现状及未来在该争端解决机制中实现角色转换的相关问题加以分析和探讨,并提出相应的建议。     

Democracy,Subsidiarity, and Citizenship in the ‘European Commonwealth’

Is there a ‘constitutional moment’in contemporary Europe? What if anything is the constitution of theEuropean Union; what kind of polity is the Union? The suggestionoffered is that there is a legally constituted order, and that asuitable term to apply to it is a‘commonwealth’, comprising a commonwealthof ‘post-sovereign’ states. Is it a democraticcommonwealth, and can it be? Is there sufficiently ademos or ‘people’ for democracy to be possible?If not democratic, what is it? Monarchy, oligarchy, ordemocracy, or a ‘mixed constitution’? Argued: thereis a mixed constitution containing a reasonableelement of democratic rule. The value of democracy isthen explored in terms of individualistic versusholistic evaluation and instrumental versus intrinsicvalue. Subsidiarity can be considered in a similarlight, suggestively in terms of forms of democracyappropriate to different levels of self-government.The conclusion is that there is no absolute democraticdeficit in the European commonwealth.

     

Geopolitical change and congressional committee governance: The Case of the US House armed services committee

This article examines the Armed Services Committee of the United States Houses of Representatives (HASC) at the beginning of the post‐cold war era. Utilising Fenno's 1973 framework, the article traces HASC's evolution through three periods: the ‘textbook’ period (1947–70); the transition period (1970–89); and the post‐cold war period (since 1989). It explores how changing environmental constraints and member goals have shaped its strategic premises, in Fenno's terms. Reporting on recent trends at HASC, I consider whether, in the post‐cold war era, HASC may be said to operate on the basis of any strategic premises at all. The article concludes by considering two key questions about Fenno's framework. Is it time bound? And, can it explain change?     

Risky business: A risk-based methodology to measure organized crime

This paper describes the result of two studies on the development of a methodology to measure organized crime. The purpose of these studies, tasked by the Belgian Federal Police and Minister for Justice, was to provide a concrete and knowledge-based framework for the drafting of annual reports on organized crime that can give better answers to questions like ‘Is there much organized crime? Is the situation serious? Is it bad that there are more criminal groups now than in the past? Which criminal groups are the most dangerous?’. Two features provide a common thread that binds the methodology: the operating principle of the spectrum of enterprise and the application of a risk-based methodological process to the overall framework. The starting hypothesis is that organized crime is entrepreneurial in nature and that the dynamics of the market space provide the main environment and explanation for organized crime. The application of a risk-based methodology is founded on the recognition that the analysis of organized crime will always depend on imperfect information and resource limitations. Furthermore, the utility of a risk-based approach is seen in the provision of findings that are transparently arrived at with a clearly established framework for prioritization of decision-makers. The proposed methodology consists of three parts: environmental scanning, analysis of organizations and counter strategies and licit and illicit sector analysis.     

The Anarchy of Responsibility: Alterity as a Vehicle for Self-Representation (An Ethical Obligation Demanded or Owed)

This paper explores who, in the Levinasian sense, is the ethical subject. Central to Levinas’s philosophy, is the priority he accords to the ethical encounter with the other that precedes all thought for, or of, oneself. It is in the face of the other (‘alterity’) that one discerns the source of all ethics; an ethics that obliterates all competing claims based on self interest because it eschews all demands for reciprocity. The face of the other commands us to respond unconditionally and in so doing provides the opportunity for a moral existence. Is to speak as the other an inversion of Levinas’s philosophy? Is not the authentic voice of alterity one that is obsessed with the needs of the other and not of the self, the obligations that the self owes to the other and not those owed in return. I argue that to become the voice of the other is to act unethically in a Levinasian sense and thus betray her otherness, whilst recognising that she is my other and it is my response to her that matters.     

Say cheese! Privacy and facial recognition

The popular social networking site, Facebook, recently launched a facial recognition tool to help users tag photographs they uploaded to Facebook. This generated significant controversy, arising as much as anything, from the company’s failure to adequately inform users of this new service and to explain how the technology works.The incident illustrates the sensitivity of facial recognition technology and the potential conflict with data privacy laws. However, facial recognition has been around for some time and is used by businesses and public organisations for a variety of purposes – primarily in relation to law enforcement, border control, photo editing and social networking. There are also indications that the technology could be used by commercial entities for marketing purposes in the future.This article considers the technology, its practical applications and the manner in which European data protection laws regulate its use. In particular, how much control should we have over our own image? What uses of this technology are, and are not, acceptable? Ultimately, does European data protection law provide an adequate framework for this technology? Is it a framework which protects the privacy of individuals without unduly constraining the development of innovative and beneficial applications and business models?     

WTO多边投资协定议题与中国的基本策略分析

进入 2 0世纪 90年代之后 ,在经济全球化的驱动下 ,制订新一代国际投资法典的动议再次被提上国际经济立法的议事日程。对中国有无必要推动多边投资协定谈判问题的分析 ,应以维护本国经济利益为归依 ,并采取务实的手段。目前 ,就引入该谈判议题本身 ,中国并无明显的经济利益。然而 ,在WTO“一揽子协议”方式下 ,为了使南北双方能从整体上求得“双赢”的结局 ,如采取“议题交易”的安排 ,中国不无接受多边投资协定议题的可能性 ,但仍得以日后谈判采取“渐成式”的“自下而上”模式为前提条件。     

Energy Security and the Division of Competences between the European Community and its Member States

Abstract: Securing energy supply for Europe has been for decades at the forefront of the energy policies of individual European Community member countries. However, dealing with energy issues in general and securing energy supply in particular is a new phenomenon within the EU's regulatory framework. One important issue which has not yet been discussed by legal scholars and which has been questioned repeatedly by energy experts, is the question who is actually responsible to guarantee security of energy supply in Europe? Is it the European Community alone? Is it the Member States alone? Or is it both? This question cannot be answered without a detailed legal analysis of the EU law in general, and EU law on division of competences between the Community and the Member States in particular. This article seeks to highlight the complications of this area of law within the EU and expand it to cover the energy sector in order to determine who and under what circumstances is responsible for guaranteeing security of energy supply for the consumers within the EU borders.