Food Safety, South-North Asymmetries, and the Clash of Regulatory Regimes
Aginam, Obijiofor, Vanderbilt Journal of Transnational Law
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)
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? …