A Sceptical Reaction to Both Diagnosis and Prescription

By Trebilcock, Michael | Journal of International Law & International Relations, Fall 2015 | Go to article overview

A Sceptical Reaction to Both Diagnosis and Prescription


Trebilcock, Michael, Journal of International Law & International Relations


Anne Orford's paper is an eloquent and erudite historical account of the evolving relationship between agricultural production and consumption, on the one hand, and the international legal system, in particular the international trade law system, on the other hand. Her perspective is that of a Critical Theorist who seeks to uncover hidden power dynamics in the dominant ideological underpinnings of the international legal and policy regime, and the political interests that were or have been marginalized by this regime. Eschewing emphatically the view that law--including international law--is politically neutral and largely a doctrinal or technological exercise, she seeks to situate current concerns over food security in a dominant economic and legal discourse, originating with Adam Smith and Thomas Malthus through to the repeal of the Corn Laws in Britain in 1846 and concomitant laissez-faire attitudes to the Irish famine and on through to the formation of the GATT in 1947 that exhibited an increasingly robust political commitment to legal and economic liberalism (or, neoliberalism). This provides the basis for her claim that the free trade regime that has emerged over this period is a critical backdrop to, and causal agent of, increasingly severe problems of food security in many parts of the world to which states have been rendered incapable of responding.

My perspective on these issues is quite different from her Critical perspective: I am an international trade lawyer by specialization and a law and economics scholar in terms of disciplinary orientation. While I do not challenge Orford's claim that contemporary concerns over food security legitimately engage important public policy objectives, I am not convinced that free trade is the cause of these problems, or that rejection of free trade in agricultural products in favour of some form of agricultural self-sufficiency is likely to be an effective public policy response.

First, while I acknowledge legitimate concerns over the impact of recent price spikes on poor consumers, especially in developing countries, these impacts need to be put into a longer term perspective, which Orford fails to do. As Charles Kenny points out in a recent book, Getting Better, (1) 50 years ago more than half the world's population struggled with getting enough daily calories. By the 1990s, this figure was below 10 percent. Over the second 50 years of the 20th century, food prices fell by 50 percent in real terms (in large part as a result of technological innovations, such as the Green Revolution). Again, in most countries, over this period, life expectancy has increased dramatically and infant and maternal mortality rates have fallen sharply (indeed reflecting a major convergence between developing and developed countries). Whether recent price spikes portend a radical disruption of these long-term trends is far from clear. Prices that go up tend often to come down, as recent experience in housing and oil markets exemplifies, rendering long-term predictions of price movements highly speculative.

Second, it needs to be emphasized that from the inception of the GATT in the immediate post-war years, agriculture has always been treated as exceptional. (2) Article XI of the GATT, which prohibits quantitative restrictions, recognizes several broad exceptions that permit trade restrictions on the export side to relieve temporary domestic shortages and on the import side to support supply management schemes or remove domestic surpluses. Article XVI of the GATT permits export subsidies with respect to agricultural products subject only to the weak constraint that they not lead to exporting countries engrossing more than an equitable share of world trade (without further definition)--a provision carried over into the subsequent Tokyo Round Subsidies Code. Notwithstanding the laxity of these provisions, the US obtained a GATT waiver in the middle of the 1950s for protectionist policies it employed with respect to a number of its key agricultural sectors. …

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