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AGRICULTURAL TRADE: TAKING INTEGRATION SERIOUSLY Presentation by Elisabeth Bürgi, lic.iur, Attorney at Law World Trade Institute Berne, Switzerland. Presentation. Introduction Agricultural Trade: Some Features WTO embedded in International Public Law Relevant „Non-Trade“ Legal Benchmarks

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AGRICULTURAL TRADE: TAKING INTEGRATION SERIOUSLY

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Agricultural trade taking integration seriously

AGRICULTURAL TRADE:

TAKING INTEGRATION SERIOUSLY

Presentation by Elisabeth Bürgi, lic.iur, Attorney at Law

World Trade Institute Berne, Switzerland


Presentation

Presentation

  • Introduction

  • Agricultural Trade: Some Features

  • WTO embedded in International Public Law

  • Relevant „Non-Trade“ Legal Benchmarks

  • AoA: Open for Integration?

  • Alternatives


Agriculture trade discourse

Agriculture Trade: Discourse


Trade in agriculture some features

Trade in Agriculture: Some Features

  • Percentage of population engaged in agriculture:

    -Developing Countries: 50 – 95 %

    -OECD Countries: 1- 6 %

  • Only 10% is traded internationally

  • Highest share in global agricultural trade by high income countries

  • OECD Countries: High Producer Support Estimates

  • Agric. Tariffs all-over higher than those applied to non-agricultural products


Large scale vs small scale production

Large Scale vs Small Scale Production

Productivity Difference: 1/500


Processed food

Processed Food

  • Issue of Tariff Escalation


Small scale agriculture sensitivities

Small Scale Agriculture: Sensitivities

  • 800 million people undernourished (2000)

  • 75% live in rural areas

  • Land Concentration / Lack of Access to Land (Gini Index)

  • Population Growth


Agricultural trade taking integration seriously

Substantial Loss of

Diversity in Plant

Genetic Resources of

Food and Agriculture

/

New Varieties by Cultivation and Technology


Small scale agriculture sensitivities1

Small Scale Agriculture: Sensitivities


Embedded wto

Embedded WTO

  • Sub-System of International Public Law

  • No self-contained sub-system:

    Other legal standards relevant, as long as not „contracted out“ (Art. 3 DSU)

  • Art. 20 AoA; Doha Declaration


Embedded wto1

Embedded WTO

  • Text reflects the Genesis Process

  • Preamble of the WTO Agreement:

    Reference to Sustainable Development


Embedded wto2

Embedded WTO

  • Sustainable Development Concept:

    Outcome of three development decades

    -Brundtland Report 1987

    -Rio Declaration 1992 etc.

  • Holistic, Integrative, Future-oriented Approach


Concept of sustainable development

Concept of Sustainable Development

  • ILA Declaration: 7 Principles

    Inter alia:

  • Principle of Intergenerational Equity

  • Principle of Common but Differentiated Responsabilities

  • Core Principle: Principle of Integration

    (s. also Vienna Convention)


Integrated framework 3 pillars

Integrated Framework: 3 Pillars

4th Pillar: Specific Development Concerns?


Legal social benchmarks

Legal Social Benchmarks

Human Rights:

  • ICESCR Art. 11 para 2: Right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing, housing.

    > Part of Concept of Food Security


Discrepancies

Discrepancies

Example:

Human Rights Committee on Economic, Social and Cultural Rights, 2003:

“39. Please explain why 7 per cent of Brazilian children suffer from undernourishment, in spite of the fact that the national production of the grains would be sufficient to feed one and a half times the total population of Brazil […].”


Legal social benchmarks1

Legal Social Benchmarks

CEDAW Art. 14: Specific Rights regarding Rural Women

etc.


Human rights and international cooperation

Human Rights and International Cooperation?

Art. 2 para 1 ICESCR:

“Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, […]

Treaty Body: International Cooperation

  • more than development aid

  • responsability to make sure that international trade rules do not hinder, but promote the fulfillment of human rights


Cultural objectives

Cultural Objectives


Environmental objectives

Environmental Objectives

OECD:

„Reduction in trade barriers can have both beneficial and harmful effects on the environment.“

World Food Summit 1996:

  • “We will pursue participatory and sustainable food, agriculture, fisheries, forestry and rural development policies and practices [..], and combat pests, drought and desertification, considering the multifunctional character of agriculture.”


Legal environmental benchmarks

Legal Environmental Benchmarks

Legal benchmarks in MEAs:

  • Biodiversity: CBD & FAO Seed Treaty

  • Fishery

  • Forest and Soil Protection (incl. water resources)

  • Climate Protection


Legal environmental benchmarks1

Legal Environmental Benchmarks

  • Landscape Diversity: eg. Alp Convention


Legal developmental benchmarks

Legal Developmental Benchmarks

Declaration on the Right to Development (1986; soft law):

Responsabilities of countries to cooperate in order to overcome the gap

etc.


Others

Others

National Security Concerns:

i.a. UN Charter


Legal economic benchmarks

Legal Economic Benchmarks

Basic Principles of International Trade Agreements:

-Transparency

-Calculability

-Non-discrimination (in conflict with ND in Human Rights regimes)

-Peaceful Settlement of Disputes

-Productivity, Efficiency

-Policy Intervention only if necessary


Integrated outcome

Integrated Outcome

  • Decision Making Process?

  • Substantive Provisions?


Aoa decision making process

AoA Decision Making Process

AoA: WTO Agreement on Agriculture

Practice

WTO Negotiations

  • Mercantilistic Approach („give and take“)

  • Arbitrary Negotiation Procedure, not following balanced criteria („the louder the better rule“)


Aoa decision making process alternatives

AoA Decision Making Process: Alternatives

  • Structure the process according to clear, transparent criteria

  • Identify all the relevant benchmarks

  • Comprehensive impact assessments ex ante

  • Look for optimal solutions in expert committees, among members, UNagencies, civil society

  • Confront draft with identified benchmarks

  • Impact assessments ex post etc.


Aoa substantive provisions

AoA Substantive Provisions

  • Direction: Towards open world market

  • “One fit for all“ rules

  • Exemptions: Only temporary

  • But Green Box: no time limit; untransparent; unclear criteria

  • “No way back“ principle

  • Like Product Concept: Product differentiation (protection of special or sensitive products) is alien to system, etc.

  • > Incentive for cheapest, but not for „most sustainable produced“ products


Aoa alternatives

AoA: Alternatives?

  • Open System, but allow for Complexities

  • Treat different situations differently

  • Liberalisation as an instrument, not an objective: Way backward must be possible

  • Take justified non-trade concerns of all the countries seriously (also rich countries)

  • Protective measures: Follow strong non-economic criteria

  • Tackle whole process chain: intermediary trade

  • Internalise external environmental costs

    Etc.


Agricultural trade regulation alternatives

Agricultural Trade Regulation:Alternatives?

Eg:

-Each Member has Right (and Duty?) to shape its own Rural Development Strategy (RDS)

-RDS: Has to take into account all the mentioned benchmarks

-Protective tools ok, if justified by benchmarks


Reform

Reform

Utopian?

Crisis as Chance?


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