Friday, March 8, 2013

Domestic policy space, Tobacco Plain Packaging and New Zealand

Plain Packaging of Tobacco products has been one of the latest issues that has knocked on the doors of the WTO pursuant to Australia's legislation to introduce plain packaging. I have blogged about it here, here and here and there is considerable discussion in the international economic law blogosphere about it. Dominican Republic, Honduras and Ukraine have challenged the Australian measure contending that it violates Australia's obligations under the TRIPS Agreement. I had also blogged about New Zealand's moves to enact a Plain Packaging legislation here. The issue raises, amongst other things, the interplay of domestic policy choices, international obligations and interpretation of international treaty provisions. Intellectual Property Watch has a detailed analysis of the various positions on the issue here.

The ICTSD had this piece recently on New Zealand's moves.What I found interesting in this piece is the stand by New Zealand authorities that they would await the decision int eh Australian case at the WTO and then go ahead with the proposed implementation in New Zealand.
"Wellington plans to formally introduce legislation requiring plain packaging for tobacco products this year, officials said last week. Should the planned initiative indeed become law, New Zealand would be the second country to implement such a measure after Australia - whose own policy has been the source of significant controversy. 
However, New Zealand Prime Minister John Key has indicated that his government will not implement the plain packaging measures until the legal challenges on Australia’s policy - including the WTO complaints that have been tabled by some of Canberra’s trading partners- are resolved. 
“We’re hopeful that there will be a WTO ruling, and we’re hopeful that we can make progress on this issue,” Key said last week. “But New Zealand’s always been a country from what I can recall, or see, that’s observed WTO rulings.” 
The debate about domestic policy space and international economic law is a long standing one. This case in New Zealand typifies, according to me, the interplay between the two. The postponement of implementation of a Plain packaging legislation pending the result of the dispute settlement proceedings at the WTO is an interesting case of the impact of multilateral trade rules on domestic policy making. Assuming that the WTO case rules that Plain packaging violates WTO obligations, will New Zealand withdraw it's legislation or go ahead risking non-compliance? There is nothing stopping new Zealand from going ahead with the legislation now and to that extent domestic policy space is not impacted. However, the existence of an international dispute settlement proceeding impacting the implementation of domestic law is in itself an interesting concept? Would the cause of international economic law be better served by such an approach? Or is it an unnecessary impediment to domestic sovereign will?

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