Should agriculture and food safety be covered by negotiations within the WTO? This question is understandably raised by the failure of the Doha Development Round and the many attempts to include the question of global agricultural exchanges within the discussions of the WTO, especially at a time when the liberalization of unregulated transactions has come under the fire of criticism.
We recommend reading this article by Francis Snyder, Professor of Law at the Peking University School of Transnational Law1
, some excerpts of which are featured in this text2
. His approach examines food safety under the angle of WTO legislation, and what he shows is that the rules governing international trade are not adapted to the strategic and specific challenges of agriculture and global food safety.
Francis Snyder presents different cases of this ‘hidden jurisprudence’ which, far from imposing rules that are accepted by all, perverts global agricultural exchanges, when in fact trade disputes within the WTO should not be settled to the detriment of global food safety. For this reason, Francis Snyder calls for the creation of a global food safety agency as the only possible alternative for preserving this common good.
At a time when the WTO is undergoing an identity crisis, it is important to overcome this limited approach of agriculture by creating a global governance for agriculture.
momagri Editorial Board
Globalization has irrevocably altered the world of food safety. Consumers, economists, legal scholars and pundits alike agree that, in today’s world, we are witnessing the creation of a more or less integrated global food economy. This process of economic integration has been accompanied, conditioned and sometimes even shaped by the diffusion of food safety standards emanating from international institutions and/or leading food trading countries. As a result of these interconnected economic and legal processes, food safety standards today are worldwide concerns.
When we as lawyers try to discern the outlines of this transformation, we usually turn to WTO law. There are many WTO cases about agricultural or food products, but most of them are concerned only indirectly or remotely– if at all – with food safety. Most WTO cases involving agricultural or food products refer not to food safety, still less to food safety standards, but rather to matters such as import or export licensing, anti-dumping duties, safeguards, agricultural subsidies or intellectual property rights, which bear little relation to food safety, at least if we regard only the relevant legal documents and do not take account, for example, of what we might learn from a more detailed contextual analysis of the implications of the specific case for the economic sectors involved over a longer time period. Consequently, in order to understand the impact of the WTO on food safety we tend to focus on the main agreements of the WTO that deal directly with food safety standards, namely the Agreement on Sanitary and Phytosanitary Measures (SPS Agreement) and the Agreement on Technical Barriers to Trade (TBT Agreement). Cases involving these agreements are frequently concerned with food safety in the sense of food safety standards, in particular because they involve relations between the WTO and international standardization bodies and their norms regarding food safety. However, not all cases involving the SPS Agreement or in particular the TBT Agreement deal with food safety standards. It would therefore be a mistake to imagine that these two agreements and relevant case law exhaust the field of WTO food safety law.
The WTO dispute settlement system deals with food safety more frequently than is sometimes thought. If we are interested in the role of the WTO in regulating food safety, we cannot limit our attention to the relatively small number of high-profile WTO cases which deal with international standards. This article analyzed all WTO cases up to now which arose under WTO agreements other than or in addition to the SPS or TBT Agreements and which were not directly concerned with relations between the WTO and international standards bodies. Virtually all such cases were settled, withdrawn or reached stalemate during consultation; in only a very few cases was a panel established. Complainants always won, and except when the case went to a panel, the winner was of equal or higher income category than the respondent.
In a second sense also, these cases represent the ‘hidden jurisprudence’ of the WTO. This sense refers to the basic philosophy or orientation of the WTO regarding food safety. It has two aspects. First, food safety is treated in these cases as simply another trade issue, rather than as a distinct subject matter with economic, political, social and cultural implications far beyond trade, as it should be. Second, complainants use the WTO dispute settlement mechanism to export and if possible impose their national standards and practices.
This pattern reflects a distribution of power which is becoming less and less appropriate in the contemporary world. Are these results compatible with WTO law? In principle, the answer should be ‘yes’. However, a mutually agreed solution, or other pre-panel settlement, does not necessarily resolve questions of the interpretation and application of WTO law. Nor does it decide which of the two parties’ view of the law is legally correct.
Neither ‘aggressive legalism’ nor ‘assertive legalism’, however, can in any way guarantee food safety. Consequently, these conclusions are intended, not as an argument against consultation as a means of settling trade disputes, but rather as a plea for a different institutional solution to the problem of how to regulate international food safety. The cases examined here show that a WTO Member, especially a powerful WTO Member, can usually globalize its own food safety standards, assuming they can arguably be justified in the light of WTO law, by bringing a complaint to the WTO and then reaching a settlement during consultation. To be successful, such cases should ideally be brought against a respondent in a lower per capita income category; a favourable settlement is likely also in cases brought against a respondent of the same income category. However, the results of this process are not necessarily equal to international food standards, even though during or after a dispute, Codex Alimentarius may step in and engage in re-regulation of food safety. Nor do the results of WTO consultations necessarily amount to an optimum solution from the standpoint of food safety, global or national. Indeed international standards and an optimum solution may not be the same.
What is clear, however, is that the globalization of local food safety standards through a dispute settlement mechanism designed to settle trade disputes is not an appropriate way to determine which standards should regulate food safety in an increasingly integrated, yet inescapably diverse global food economy. The hidden jurisprudence of the WTO is not a good way to regulate food safety today. We need a global food safety agency.
1 Starr Professor of Law and EU Jean Monnet Chair ad personam. Co-Director, Centre for Research on Transnational Law Peking University School of Transnational Law; Shenzhen Graduate School; Visiting Professor (formerly Centennial Professor), London School of Economics, Visiting Professor, College of Europe, Bruges, Belgium (since 1988)