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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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Presentation Transcript
Agricultural trade taking integration seriously



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

World Trade Institute Berne, Switzerland


  • Introduction

  • Agricultural Trade: Some Features

  • WTO embedded in International Public Law

  • Relevant „Non-Trade“ Legal Benchmarks

  • AoA: Open for Integration?

  • Alternatives

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

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



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


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

Environmental objectives
Environmental Objectives


„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



National Security Concerns:

i.a. UN Charter

Legal economic benchmarks
Legal Economic Benchmarks

Basic Principles of International Trade Agreements:



-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


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


Agricultural trade regulation alternatives
Agricultural Trade Regulation:Alternatives?


-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



Crisis as Chance?