Food safety, South-North asymmetries, and the clash of regulatory regimes.

• Author: Aginam, Obijiofor

GIVE US THIS DAY OUR DAILY BREAD ... The prayer is thus not purely a collection of spiritual recitals.... It turns ... to the mundane requirements of food, clothing, shelter--what would, in human rights parlance, be called economic rights.... We must also take account of the word "daily." There is here a clear injunction against anti-social conduct such as hoarding or cornering the market in essential commodities.

--C.G Weeramantry (1)

ABSTRACT

This Article explores the globalization of food safety concerns driven by the phenomenon of economic globalization, and the "legalization" of food safety disputes within the rules-based architecture of the World Trade Organization (WTO). Focusing on the interaction between WTO norms and the treaties of other multilateral organizations, the Article discusses the implications of the "clash of food safety regulatory regimes" for South-North asymmetrical relations between the rich and poor countries. The Article also discusses global economic diplomacy and the emerging WTO jurisprudence on the Agreement on Sanitary and Phyto-Sanitary Measures (SPS) disputes. This Article explores both the perceived and actual marginalization of most developing and least-developed countries by the embedded structural impediments and onerous obligations in food safety disputes. The Article discusses the European Union's embargo on fresh fish from East African countries following a cholera outbreak and argues for mutually reinforcing linkages between the SPS and pre-existing foodsafety-related norms, standards, and agreements of other multilateral organizations, including the emerging "norm" of the precautionary principle.

TABLE OF CONTENTS I. INTRODUCTION: THE CRUX OF THE ARGUMENT II. OVERVIEW OF THE SPS AGREEMENT III. FOOD SAFETY DISPUTES AND THE CLASH OF REGULATORY REGIMES AT THE WTO IV. SOUTH-NORTH ASYMMETRIES AND THE POLITICS OF TRADE AND FOOD SAFETY DIPLOMACY V. EPILOGUE: TOWARDS A HUMANE FOOD SAFETY REGIME I. INTRODUCTION: THE CRUX OF THE ARGUMENT

The globalization of food safety and health concerns, partly driven by the phenomenon of economic globalization and the "legalization" of food safety disputes within the rules-based architecture of the World Trade Organization (WTO), has raised complex regulatory questions within the mandate of relevant international organizations. This clash of food safety and health regulatory regimes implicates the South-North (2) asymmetrical relations between the rich and poor countries, global economic diplomacy, and the emerging jurisprudence of the WTO on the Agreement on Sanitary and Phyto-Sanitary Measures (SPS)(3) disputes. This Article explores both the perceived and actual marginalization of most developing countries, especially those in Africa, by the embedded structural impediments and onerous obligations in food safety disputes. A litany of seminal works on the transition from the General Agreement on Tariffs and Trade (GATT) to the WTO in 1995 documents well how a legally enforceable dispute-settlement procedure transformed the international trade architecture from trade in goods to trade in services, intellectual property, and sanitary and phytosanitary measures. (4)

Although the multiple dynamics of the rules-based international trade architecture built on the institutional pillars of the WTO have been intensely debated by academic scholars and global civil society groups, (5) the real question is no longer whether free trade is good or bad for countries, but rather whether the contemporary rules of free trade are fair, humane, transparent, and even-handed in the context of South-North asymmetries. Has the scope of global trade agreements extended and intruded into areas and sectors that impede social policy in the national domain of countries? Did the "single undertaking" package, in which every member accepted all WTO agreements, enclose the domestic policy space, especially in developing countries, for certain aspects of social policy and provision of public goods? In adjudicating disputes, do the dispute settlement mechanisms of the WTO create effective and mutually-reinforcing linkages between the SPS and the pre-existing and related foodsafety norms, standards, and agreements of other multilateral organizations--including the emerging "norms" of the precautionary principle and sustainable development? This Article explores these questions in the context of the food safety disputes at the WTO involving the SPS Agreement, the perceived or real marginalization of developing countries in these disputes, and the paradoxical convergence and collapse of existing international norms in SPS disputes and WTO law.

The Article is divided into five Parts. Part I gives an overview of the argument: the globalization of food safety concerns due to economic globalization raises complex regulatory questions in the context of South-North asymmetries. Part II presents an overview of the SPS Agreement, which came into force with the establishment of the WTO as one of the Uruguay Round trade agreements. (6) The overview focuses on the most "controversial" provisions of the SPS Agreement on risk assessment and scientific evidence for domestic SPS measures. Part II also argues that the enforcement of the SPS, through the Dispute Settlement Mechanisms at the WTO, is problematic because of the lack of a "cohesive, epistemic community on issues of transnational biotechnology." (7) Focusing on some of the SPS disputes that have been adjudicated by the WTO dispute settlement panels and appellate bodies, Part III explores the actual or perceived marginalization of pre-existing food-safety related norms and agreements by the WTO. Deploying what the Author refers to as the "paradoxical convergence and divergence of norms and conventions on trade-related issues," Part III assesses the interaction of the SPS Agreement, the Codex Alimentarius Commission's standards on food safety established by the World Health Organization (WHO) and the Food and Agriculture Organization (FAO), and the Convention on Biological Diversity. Leading international law scholars have explored the convergence and divergence of these norms under the rubric of "fragmentation of international law." (8) Part IV discusses the import ban on fresh fish imposed by the European Community (EC) on East African countries prompted by outbreaks of cholera in those countries. Given that the EC ban was not based on any scientific evidence that would make the ban SPS compliant, the Author argues that the ban exemplifies the South-North asymmetry between rich and poor nations. (9) These East African countries lacked the capacity to challenge the EC before the WTO because they had an insignificant share of international trade compared to the EC. (10) Part V concludes by "problematizing" the challenges of humanizing food safety concerns at the WTO in the context of South-North disparities. The time has come for the WTO to address the "democratic deficit" that is created by the enforcement of free trade rules on food safety issues. One way to do this is to take pragmatic steps towards implementing the various provisions of trade agreements that codify the principle of "Special and Differential Treatment" for developing and least developed member countries of the WTO.

2. OVERVIEW OF THE SPS AGREEMENT

   The SPS is one of the Uruguay Round trade agreements negotiated alongside the establishment of the WTO in 1995. (11) The preamble to the SPS Agreement re-affirms that no Member of the WTO "should be prevented from adopting or enforcing measures necessary to protect human, animal or plant life or health, subject to the requirement that these measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between Members where the same conditions prevail or a disguised restriction on international trade." (12) The SPS Agreement seeks to establish "a multilateral framework of rules and disciplines to guide the development, adoption and enforcement of sanitary and phytosanitary measures in order to minimize their negative effects on trade." (13) The SPS Agreement also desires to "further the use of harmonized sanitary and phytosanitary measures between Members, on the basis of international standards, guidelines and recommendations developed by the relevant international organizations, including the Codex Alimentarius Commission, the International Office of Epizootics, and the relevant international and regional organizations operating within the framework of the International Plant Protection Convention, without requiring Members to change their appropriate level of protection of human, animal or plant life or health." (14)

   Like most WTO agreements, the SPS Agreement attempts to draw a line of distinction between protectionism and genuine domestic measures and policies necessary to protect human, animal, or plant life or health. (15) This balance is always delicate given the long list of disputes over the interpretation of Article XX(b) of GATT 1994 heard by various WTO Panels as well as its Appellate Body. (16) Thus far, in the WTO jurisprudence on food safety disputes, the most contentious issues on the SPS seem to revolve around the "Basic Rights and Obligations of WTO Members" in Article 2, the harmonization of national and relevant international SPS measures in Article 3, and the requirement of risk assessment in Article 5. (17) WTO members, under Article 2, shall ensure that any sanitary and phytosanitary measure is applied to the extent necessary to protect human, animal, or plant life or health; is based on scientific principles; and is not maintained without sufficient scientific evidence, except as provided in paragraph 7 of Article 5. (18) Article 2(3) codifies the well-known Most Favoured Nation (MFN) principle by providing that "Members shall ensure that their sanitary and phytosanitary measures do not arbitrarily or unjustifiably discriminate...