Some Thoughts on Food Security and the Law of the World Trade Organization

By Hughes, Valerie; Baker, Daniel Ari | Journal of International Law & International Relations, Fall 2015 | Go to article overview

Some Thoughts on Food Security and the Law of the World Trade Organization


Hughes, Valerie, Baker, Daniel Ari, Journal of International Law & International Relations


  I.  INTRODUCTION  II. INTERNATIONAL FOOD FLOWS: FROM THE "PERIPHERY" TO THE "CENTRE"? III. WTO LAW AND DOMESTIC FOOD SECURITY POLICIES      1. EXPORT RESTRAINTS         A. GATT ARTICLE XI         B. ARTICLE 12 OF THE AOA         C. GATT ARTICLE XX      2. DOMESTIC SUBSIDIES AND SUPPORT  IV. THE BALI MINISTERIAL DECISION ON PUBLIC STOCKHOLDING FOR FOOD      SECURITY PURPOSES   V. CONCLUSION 

I. INTRODUCTION

We are grateful for the opportunity to reflect on Anne Orford's thought-provoking article. Orford is one of the most original and provocative international legal scholars working today, and her new article is full of intriguing ideas. Orford's body of work is characterized by deep research, critical analysis, and a strong commitment to global justice. All of these characteristics are on prominent display in her new article, which we are sure will spark wide-ranging and perhaps heated debate in the international trade law community and beyond.

The questions raised in and by Orford's article are many and varied. It is not our intention to discuss each and every one. Rather, in this short contribution, we highlight and discuss a number of points that may be of interest to those considering the relationship between WTO law and food security. In Part 2, we take a closer look at Orford's claim that contemporary international trade law perpetuates a colonial paradigm pursuant to which food flows uni-directionally from the "periphery" to the "centre." Parts 3 and 4 consider Orford's claim that international trade law is impelled by an impulse to "limit[] state intervention" by examining WTO provisions concerning export restraints (Part 3.1) and domestic subsidies and support (Part 3.2). Part 4 briefly describes the significance of the Ministerial Decision on Public Stockholding for Food Security Purposes, adopted during the Bali Ministerial Conference at the end of 2013. Although our discussion of these provisions cannot be comprehensive, we hope to show that WTO law provides more flexibility in terms of domestic regulation than Orford's article recognizes.

Our aim in writing this response is not to "defend" uncritically, as it were, the WTO or international trade law. We of course recognize the vital importance of food to human well-being, and the right to food is recognised by the vast majority of states. The contribution of WTO law to food security or insecurity must, therefore, be examined honestly and soberly. It is important, however, that theoretical claims be tested against all available evidence. In our view, some aspects of Orford's article give insufficient attention to the actual contours and content of international trade law. Our point is not that WTO law need not evolve to better address this (and other) issues, but that any discussion of the role of the WTO and international trade law in the global food system must take account of the sometimes mundane specificities of the field, many of which are not adequately accounted for in Orford's article despite the important role they play in the movement of food within countries and internationally.

II. INTERNATIONAL FOOD FLOWS:FROM THE "PERIPHERY" TO THE "CENTRE"?

One of Orford's core claims is that contemporary international food flows are uni-directional: food moves from the starving periphery to the over-fed centre, and in this way continues, under the guise of free trade, "the social, legal, and environmental legacies of settler colonialism." (1) This account or vision of international food flows appears to be the central problematique underpinning and impelling Orford's analysis. In her own words, her project sets itself the task of making "sense of the uneven nature of food insecurity, and the tendency to reproduce patterns familiar from the colonial era in which poorer countries shipped the food they produced to richer countries, while at home their people starved." According to Orford. (2)

[I]nternational law no longer allows the older forms of colonial power to operate--it has prohibited annexation of territories through force or the use of gunboat diplomacy. …

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