Case study: food and trade
With trade liberalisation, there is less need to travel to enjoy food delicacies from other countries, which can increasingly be found in shops in many parts of the world. Yet, not all food products receive the same market access conditions.
This is due first to the persistence of strong farm lobbies in countries where they would not be competitive without subsidies or border protective measures. But this may also come from health related concerns about food imports. To avoid the latter reason being a hidden argument for sheer protectionism, countries have developed a series of international standards on food safety. Those standards belong to the soft law category whereas trade liberalisation commitments have been embodied in formal binding treaties, either at the multilateral level within the World Trade Organisation (WTO), or at regional or bilateral levels.
The key question, however, is whether, and if so how, those two categories of instruments have been integrated, or blended, into a coherent whole. We will focus here on the situation at the multilateral level for WTO members.
The main international standard development agency for food is the Codex Alimentarius Commission, an institution created in 1961 jointly by the World Health Organization (WHO) and the Food and Agricultural Organization (FAO). It elaborates standards that are agreed upon in several Committees where health experts from governmental agencies meet in a club-like environment.
There was no explicit link between those standards and trade liberalisation rules before the creation of the WTO in the mid 1990s. With it came the endorsement by members of a new Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement). This agreement specifies the scope and conditions of sanitary and phytosanitary measures taken by members that are “necessary for the protection of human, animal or plant life or health” (SPS agreement art. 2.1). This includes regulations to protect “… from risks arising from additives, contaminants, toxins or disease-causing organisms in imports of food, beverages and feed stuffs” as well as “to prevent or limit other damage … from the entry, establishment or spread of pests,” (SPS Agreement, Annex A, paragraph 1).
Any measure taken by a member should be “based on scientific principles” and should not be “maintained without sufficient scientific evidence” (SPS Agreement, Article 2). This is where the link with the Codex enters into the picture. Indeed, “to harmonize sanitary and phytosanitary measures on as wide a basis as possible, Members shall base their sanitary or phytosanitary measures on international standards, guidelines or recommendations.” (art. 3.1) The agreement explicitly mentions that “for food safety, the standards, guidelines and recommendations established by the Codex Alimentarius Commission relate to food additives, veterinary drug and pesticide residues, contaminants, methods of analysis and sampling, and codes and guidelines of hygienic practice.” (Annex A par. 3). The linkage between Codex and a WTO agreement changed the nature of the Codex standards from optional to quasi compulsory (at least as benchmarks) as WTO members have to use them as the technical basis for health and safety measures.
This has produced a series of interesting, and debatable, effects in policy-making in the Codex and at the national level. At the national level, the work of health regulatory agencies has been increasingly influenced by trade ministries. In the preparation of the work of specific Codex Committees, internal coordination increased with the role of trade interests. At the international level, standard-setting within Codex has become politicised, leading to an increasing recourse to voting procedures, moving away from the consensus principle in the Commission. The shifts towards embracing more trade policy considerations have been the most visible in the work of the various Committees on specific food standards (work on food labeling, on cocoa products and chocolate or on natural mineral water, etc.). Some of the Committees’ work became completely paralysed. The Committee on Food Labeling, for example, has become deadlocked over finding common labeling standards for products made with genetically modified organisms (GMOs).
Would this deadlock have happened short of the link with the WTO agreements? This is a difficult counterfactual question but the current deadlock over those issues both in the Codex commissions and in the WTO negotiations or adjudication processes may give argument to those who think that the blending of soft and hard law on food and trade may not have been optimal.
© Cédric Dupont