Scenarios in Effective Communication to Citizens and Corporations
Edited By Miriam Bait, Marina Brambilla and Valentina Crestani
The term Utopia, coined by Thomas More in 1516, contains an inherent semantic ambiguity: it could be read as eu topos (good place) or ou topos (no place). The authors of this volume analyze this polysemous notion and its fascination for scholars across the centuries, who have developed a variety of visions and ways to explain the «realization» of utopian discourses. The experts in the fields of sociology, political science, economics, computer science, literature and linguistics offer extensive studies about how utopian scenarios are realized in different cultural contexts.
The “Green Beautiful” Option for the WTO-Multilateral Trading System: Cutting the Edge between Feasibility, Pragmatic Approach and Utopia in Governing the Multiple Aspects of Globalization in Food Markets
The “Green Beautiful” Option for the WTO-Multilateral Trading System: Cutting the Edge between Feasibility, Pragmatic Approach and Utopia in Governing the Multiple Aspects of Globalization in Food Markets
1. The Green Beautiful as a Possible Option for Planet Earth
Green Beautiful is the name of the marvelous utopian planet and the ideal society of the future depicted by Coline Serrau in the outstanding but unfortunately not very well-known French movie La belle verte, acted in, written, and directed by Serrau in 1996. On Green Beautiful, people live conscious, healthy, peaceful, simple lives in harmony with body, mind and nature, and enjoy longevity. Technology has evolved to the point that it is already overruled, even overhauled by biological knowledge and phenomenal quantal consciousness. Hence, the film is a sort of “from the future back to the origin of mankind”.
Indeed, a long trip has brought humanity from the Big Bang through wars, disasters, the so-called progress of the Industrial Era and extremely stressed technological evolution to the edge of its own existence. This continues on and on in a sort of circle that has developed back (or further on) to the potentialities of human nature itself. Hence, the human mind on Green Beautiful is able to do everything we still use technology for all by itself. In fact, telepathy is a common communication tool. Through telepathy, the inhabitants of Green Beautiful can move to Earth and other planets, can ‘disconnect’ and drive back to awareness, presence and good will exhausted earthlings’ minds. Furthermore, newborns receive and spread strength and nourishment from simply being held in one’s arms.
In order to communicate through telepathy from Earth, the inhabitants of the planet use water: fountains, lakes, wash-basins, bathtubs, etc. Water is not only the source of life, but the basis of communication and relations. Thus, water becomes the common heritage of humanity that must be protected in order to ensure communication for future generations. On Green Beautiful there are ‘concerts of silence’ but also ‘sessions of laughter’. People eat everything: fruit, vegetables, olives, kebabs of raw vegetables and grains, but no meat. Instead they ← 87 | 88 → eat beans. Finally, everything is agreed and settled peacefully in the yearly planet meeting held on the top of a mountain and headed by the eldest member of the community, Ozam – and when they reach the summit, people are so exhausted they don’t want to quarrel anymore.
In short, La belle verte provides a unique and unusual look at our own world of material bondage, environmental decay, the dictatorship of money and the marketplace, inverted or diverted value perception, widespread confusion, loudness to the point that we cannot even hear our own interior voice. On the one hand, the message is encouraging: Green Beautiful is our own planet itself, just a couple thousand years in the future. On the other hand, if Green Beautiful really is a possible option, the question is how do we manage to become Green Beautiful, and how do we succeed in tackling the basic needs of planet Earth? With regard to my research interests, namely international trade law, specifically the WTO’s approach to intellectual property rights, non-trade concerns and food safety issues in the view of balancing the market’s rules and humanity’s needs, the question becomes: have we already started out on this trajectory, and if so, do we have the necessary tools? Are we already doing something to boost individual consciousness and general environmental well-being in the globalized society without threatening the achievements reached from the multilateral trading system and through other forms of institutional market integration at the international, regional or bilateral level? In short, where are we, and where are we going?
But, let me go back to the movie and to the annual planetary meeting headed by old Ozam as mentioned previously. There is a special point on the assembly’s agenda entitled “travels to other planets”. Even though Green Beauty’s inhabitants aim to learn from their neighbors, nobody has been to Earth for 2000 years! Surprisingly, it is the only destination, at least at the beginning of the story, without volunteers willing to travel to it. The reason for this is that Earthlings are supposedly unable to teach anything to move further forwards. From the perspective of Green Beautiful, on Earth society continued to degrade, as one tells who had previously been on Earth. This individual also believes that there is nothing that can be done for Earthlings. In this respect, it had been really difficult down there, and life on Earth is marked by the “law of the strongest, squashed women, massacres and no distribution”. In short: “they would have needed centuries to recover”. Furthermore, if one wanted something, he couldn’t get it without money, even food. “But to eat is a necessity. We die if we don’t eat”, Mila’s son says indignantly. “But they do this. If you have no money, you have nothing”, is the final severe remark. In this context, it is worth noting that “necessity” is one of the main principles ← 88 | 89 → defining the evolution of international trade law and shapes WTO Members’ commitments to health and environmental protection, as well as food safety issues1.
The description of “Earth’s Industrial Era”, something Green Beautiful had passed about 3000 years before, is similarly severe. Serreau herself defines this era as “competition, literacy, mass production of useless objects, wars, nuclear technology, destruction of nature, diseases without cures, a prehistoric period”. Not surprisingly for a contemporary audience, there was even a country where women had to wear veils on their faces and they did not have the right to drive a car!
Of course there is much more in the movie, but another aspect of life on Earth nowadays seen from the futuristic Green Beautiful worth mentioning is the “hierarchy” since “the men think they are superior to the women, adults are better than children, the human beings are superior to animals and plants and there are races”, as an old woman explains. Viewed from Green Beautiful, Earth is a big planet, with many different continents, which results in diverse groups of humans separate from each other. When they meet, some groups think they are superior to others, which can result in mass killings. One thing that makes Green Beautiful distinct from Earth is that they have a single race, a single climate, and a single way of development on their little planet. Surely this makes everything easier, but it is not because Earthlings didn’t have the chance: they didn’t even try2.
Here we arrived at our question of what I dare call the ‘state of the art’. Does international trade and/or economic law sufficiently consider the Green Beautiful option in managing issues such as food safety and security, access to medicine, technology transfer, environmental threats, and the protection of biological diversity, animal and plant health, traditional knowledge, and human and basic rights?
Before moving on, let me stress another interesting statement in the movie. Indeed, this brings me a little further from the main topic of this article. Nonetheless, it is connected to other studies collected in this volume, specifically the issue of communication and the tools that can be used to enhance and increase it. Ozam and some other people on Green Beautiful do not want to give up the Earth. However, most of the participants at the assembly are convinced that Earthlings are not open to communication, as one young man shouts. So, the question becomes: are humans actually already like this? Are we playing with computers instead of exercising our brains? Are we really only using 10 percent of our brain’s capacity? Communication plays an important role in the movie. Unfortunately, it is not ← 89 | 90 → possible to focus on this point now, but let us keep this question in mind. Certainly, there is partial overlapping between the issue of strengthening conscious societal and individual behavior with respect to safety-related matters at the international level and through international cooperation. And the issue of promoting fair and effective use of technologies and communication tools in order to avoid them becoming threats for individual rights and freedoms.
Finally it is Mila who travels to Earth. She wants to know where she comes from, as her mother was an Earthling.
2. Promoting Adequate Food Access Through Consumer Behavior and Consciousness
As already pointed out, Green Beautiful had passed through an industrial era. Perhaps surprisingly from our point of view, this period was followed by the so-called ‘Era of Processes’, surely an alarming scenario. Indeed, at that time all the people who produced products that damaged human health and the health of the environment had been judged as culprits of genocide and of committing crimes against the planet! Who were they? The food and chemical industries, weapon factories, tobacco and alcohol, pharmaceutical and nuclear industries, car producers, architects, and the many doctors and politicians who had become rich by allowing it to happen. This evolved into a civil war. The Time of Boycotts followed. It was the human community’s ultimate weapon. The inhabitants of Green Beautiful didn’t buy things anymore and threw things away that caused harm. In fact, fewer purchasers meant less power. Even the army and the police could not do anything about the boycott. It was the “chaos before renaissance”. Given the historical trajectory of Green Beautiful, the question becomes: do we too, necessarily have to go through this chaos as a kind of path of purification in order to regain control of things, instead of being led by them?
Looking at the WTO-Multilateral trading system, I personally do not think that we will come to the desperate point described in the movie. In this respect, the GATT (General Agreement on Tariffs and Trade) already had tools in place at the time of its adoption. The WTO, almost through newer jurisprudence of the WTO/Dispute Settlement Body (DSB) and WTO/Appellate Body (AB), seems to be searching for more practical and sustainable solutions, since throwing out the baby with the bath water is not a viable solution3. In any case educating individuals on awareness and on conscious societal behavior is becoming a fundamental ← 90 | 91 → goal of national and international governance and politics related to trade in food, access to medicines, the protection of biological diversity.
When considering food safety governance in the WTO multilateral trading system, for example, we must accept the fact that members approach the issue differently at the regulatory level. There are historical, cultural, economic, developmental, political and religious reasons for this. Nevertheless, food travels as does any other good; it passes frontiers with its qualities and its dangers. National restrictions on trade aim to combat health risks, among other goals. Nevertheless, these restrictions can easily hide or impose protectionist measures. International cooperation and cooperation among international organizations and non-governmental institutions is growing in order to avoid further food crises. On the other hand, harmonized systems of safety regulations based on general standards are being adopted or recognized by relevant international organizations, such as the WHO, Codex Alimentarius Commission, the International Office of Epizootics, various international and regional organizations operating within the framework of the International Plant Protection Convention to elaborate ad hoc standards or widen the acceptance by states in mutual recognition of national and private safety standards and certifications4. This cooperation boosts trade and international relations, building bridges and bringing states (and people) closer together.
Food quality, adequacy and safety must be protected without compromising access in less developed countries. This could mean, for instance, accepting the use of GMOs in contrast to the level defined by high national standards of protection. In this context, it is up to the international community to set, if necessary, new fora, rules, or procedures for the protection of general values and needs at stake, including quality, traditional farming and combating situations that threaten agriculture such as land grabbing, which threatens biodiversity, traditional knowledge and agricultural methods, and the rights of local populations.
An important question is whether this kind of balancing among different interests and non-economic concerns connected to trade should be the principal task of the existing WTO-Multilateral trading system in a world moving quickly towards emerging forms of plurilateralism through Regional and/or Preferential Trade Agreements (RTAs, PTAs) aimed at enforcing, at different levels, WTO-plus or WTO-extra regulations5. It is a challenging goal I would personally welcome. ← 91 | 92 → Furthermore, it should include related aspects of the action against international corruption and international organized crime connected to trade in food and medicine.
But to return to awareness as a tool to boost sustainable and science-friendly development that could help avoid something like the so-called Boycott Era in Green Beautiful, I cannot resist repeating that educating about conscious societal and individual behaviors must remain, (or become) the fundamental goal of national and international governance and politics, especially if related to safety, trade in food, access to medicine and the protection of biological diversity. Incidentally, this also means promoting a commitment to protect, occupy, or even conquer the right to exercise one’s freedom of choice in light of adverse or “bad” market forces. Simply banning access to unsafe food or GMOs from a foreign country, for instance, is no longer enough. Instead, there is a need for civil society to demand overall protection of biodiversity and traditional farming practices at the international and transnational level. With regard to these points, consumer behavior is already positively evolving: production processes that endanger human, animal and plant life are often prohibited by laws or at least condemned and boycotted by consumers. In many states and in the European Union, production and distribution processes are almost (or supposed to be) traced and products’ features clearly marked. It goes without saying that governments, companies, and groups are influenced by civil society’s pressure and mood, which is becoming increasingly relevant and effective, but also dangerous for power players, given the easy and open access to social networks.
From another perspective, poorer countries have also gained stronger consciousness with respect to their own needs and opportunities. All of this is influencing economic relations and the future role of the multilateral trading system. Even though the steps forward do not yet appear to be remarkable, they are proving that we are moving in the right direction. Nevertheless, we still have a long way to go, and civil society could play a stronger role in confirming that unsafe, spoiled, counterfeit, insufficient, undiversified, and inadequate food and foodstuffs are real threats to trade. Subsequently, the challenges the international community and the transnational society will first have to face in order to neutralize the potential danger of all this are not bans or restrictions to trade, but continuing to develop and spread methods and tools for positive integration for safety issues among members. If we look at the WTO Agreement on Sanitary and Phytosanitary Measures (SPS) and its latest interpretation by the Dispute Settlement Body (DSB) and the Appellate Body (AB), there are opportunities for a better future6. ← 92 | 93 →
3. Trying to Avoid the “Boycott Era”: WTO Tools for Sustainable Balance in the Food Trade and Other Safety Issues
Starting from the multilateral trading system first set by the GATT in 1947 and developed further during the Uruguay round (1986–1994), let us take a brief look at the main threats we are being confronted with, along with some legal tools already available for enforcing food safety in international trade law.
First of all, are food safety requirements an obstacle to free trade in the multilateral and market-oriented trading system? Indeed, the core of the current debate on food safety and international trade might be summarized with the following questions:
– How do different national food safety regulations interact in our interdependent world?
– Should the WTO consider these food safety regulations as simply barriers to trade? If so, should the aim be to reduce or abolish them in one way or another? Or should the “national level of protection” be considered a unicum that needs or even deserves to be preserved and protected7?
– How does one get around this dilemma?
With regard to the specific significance that the issue assumes in international trade in general, is it currently possible to assert that national food safety requirements which somehow refer to internationally accepted parameters (such as the widely-held acceptance of a general right to ‘adequate’ food) prevail – limiting them – over those of international trade in the free trade context? Considering some of the latest developments in WTO practices and jurisprudence, I tend to (carefully) say yes.
In particular, measures necessary to protect human, animal or plant life on the basis of national level of protection adopted by a given member, are presumed to be compatible with GATT. However, “if not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail or a disguised restriction on international trade” (Art. XX Chapeau GATT).
As a matter of fact, and exactly through Art. XX, Chapeau trade requirements have for the most part prevailed in the comparative evaluation of interests at stake, ← 93 | 94 → as confirmed by the practice of the WTO/Appellate Body. Even though correct from the strict regulatory perspective, unfortunately this approach does not take into sufficient consideration the point of view set forth in Green Beautiful. In other words, a food safety issue is relevant insofar as it is trade related. Consequently, an issue is relevant insofar as it is trade related. This approach first requires checking if, and within which limits, food safety today is considered trade-related by the WTO system itself, and if so, under which conditions can an internal restrictive measure affecting international trade8 be justified when it comes to food safety matters?
Indeed, considering the harsh economic repercussions recorded in cross-border trade relations and the consequences on the international and internal judicial level linked to the latest scandals and food disasters, the link between food safety and well-balanced international trade cannot be denied. Though this relationship between cause and effect is generally acknowledged, when it is a matter of specifically evaluating the compatibility of a given restrictive national measure on international trade in WTO law, the members’ standpoints prove to be very distant from each other. This also applies for cases in which safety standards agree upon common means of operation to be established. And this both from the North-South perspective (developed countries’ positions in respect to the ones of developing countries with reference mainly to the sustainability of measures asserted by developing countries), as well in the North-North relationship among peers/developed countries. One simply needs to go back to the hormone-treated meat case9 or to point to the divergent positions of the United States and the European Union on GMOs and recall the ongoing discussion in the EU around the supposed negative effects of the potential Transatlantic Trade and Investments Partnership (TTIP) with the USA, particularly in the food sector.
Given the fact that the multilateral trading system is aimed above all at hindering protectionist practices by members, there are fortunately several rules within the GATT (General Agreement on Tariffs and Trade), GAS (General Agreement on Services) and TRIPS (Agreement on Trade Related Intellectual Property Rights), i.e. limitations on trade in goods, import restrictions or other prohibitions linked to food safety that may justify an exception to general principles. ← 94 | 95 → For example, this is true whenever there is a danger to health or the need to intervene in combat practices that may mislead the consumer (Art. XX lit. b) and lit. d), General Exceptions); whenever there is a risk of food scarcity within a member state or quality control must be ensured (Art. XI.2 lit. a), lit. b), lit. c), General elimination of quantitative restrictions); and whenever the packaging of goods may be misleading or fraudulent (Art. IX.2, Marks of origin). In general, restrictive measures are temporary (Art. XI.2b) and must be carried out in compliance using the principle of non-discrimination (Art. XIII).
In the adoption and implementation of national measures, transparency and publicity are to be guaranteed (Art. X. 2), and the principle of necessity and coherence of the measure must be complied with. Finally, scientific evidence attesting to the appropriateness of the trade-restrictive measure must be provided. With regard to quality, reference should be made above all to the TRIP’s Agreement in addition to Article IX of the GATT. In any case, this all falls within a broader context aimed at understanding the role of the WTO in relation to issues which, though not always covered by the WTO multilateral treaties, are already debated in the WTO Committees as they have an impact on the international balance of economic interests and basic human needs within the WTO. Other measures are set out by the SPS Agreement (Agreement on Sanitary and Phytosanitary Measures), in the Agreement on Agriculture, as well as in the Agreement on Technical Barriers to Trade (TBT) and in the Agreement on Import Licensing Procedures. The discipline established under the SPS Agreement is particularly relevant for the purposes of reducing trade constraints by way of approximating national legislations. Here it is worth mentioning that the harmonization mechanisms are established under Art. 3 and the provisions relevant to equivalence and mutual recognition appear in Art. 4. As already noted above, international standard-setting bodies, whose role within the multilateral trading system has been redesigned by the principle of prevalence of international law, acquire special relevance when it comes to harmonizing objectives. The Agreement grants these bodies a sort of indirect power of attorney, which has raised some criticism in connection with the asserted legitimacy deficit of such institutions.
With respect to intellectual property and the aim of balancing economic interests and fundamental needs, reference should be made to the international regulation of certain intellectual property rights, such as geographical indications, patents, plant species and brands, as well as to the impact of domestic and international trademark exhaustion regimes and to the growing phenomenon of trade in counterfeit food. Indeed, the rules governing geographical indications (intended as indicators of food quality) have implications for food safety (Arts ← 95 | 96 → 22–24 TRIPs). Negotiations within the Doha round and so-called TRIPs-plus and TRIPs and regional or bilateral agreements substantially strengthened and extended international protections, even though the primary purpose of this was not safety10. Another new aspect relevant to food safety is represented by the relationship between the TRIPs Agreement and the international regime of the previously mentioned and so-called triplet: biotechnology, biodiversity and traditional knowledge11. When dealing with international trade law on food safety, we cannot avoid taking into consideration newer trends that go beyond the WTO, such as ongoing TTIP-negotiations or other already concluded RTAs and PTAs12. Apart from the harsh question of the WTO/DSB’s jurisdiction with respect to RTAs/PTAs, which is very uncertain and controversial, most of the regulations at stake could well be subject to future evolutionary interpretations and applications by the WTO bodies, potentially contributing to the harmonization of standards and to the acknowledgement of policies (international, regional or even national ones) connected with food safety on an international level. Symbolic of this is the action taken by the SPS Committee with reference to the Codex Alimentarius13.
4. Facing Food Safety Complexity at The Doha Round
The Doha Ministerial Declaration dated November 14, 2001 already reaffirmed the joint commitment of all WTO members to emphasize some collective interests that go beyond the pure aim of trade liberalization, including the promotion of sustainable development, environmental conservation and healthcare, specifically food safety in future multilateral negotiations. WTO members thus
recognize that under WTO rules no country should be prevented from taking measures for the protection of human, animal or plant life or health, or of the environment at the levels it considers appropriate, subject to the requirement that they are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, and are otherwise in accordance with the provisions of the WTO Agreements. (para. 6) ← 96 | 97 →
At the same time, members reaffirmed the obligation, within negotiations relating to the WTO Agreement on Agriculture, to ensure that the special, differentiated treatment for developing countries allows these countries to cope with their needs, including food safety (para. 13), as well as the importance of implementing and interpreting the TRIPs Agreement in a manner supporting public health (para. 17).
In any event, the perspective of the Doha Declaration with regard to future negotiations strengthens what has already been implied in some of the covered agreements. Reference may be made, although to a limited extent, in the very Preamble of the WTO Agreement, which defines the general objectives of the Organization (in particular, the sustainability of development and environmental conservation), to the general exceptions of the GATT Agreement 1994 (Art. XX) and of the GATS Agreement (Art. XIV) that makes it possible to waive the duties of trade liberalization for the purposes of protecting the basic needs of society. Furthermore, the Preamble to the Agreement on Sanitary and Phytosanitary Measures (SPS Agreement) affirms members’ desire to “improve the human health, animal health and phytosanitary situation in all Members”. Moreover, as far as the basic principles of the TRIPs Agreement are concerned, members may adopt measures that are necessary for protecting the food supply and public health (Art. 8).
Unfortunately, several obstacles to the development and implementation of this perspective have appeared14. Furthermore, the Doha round started more than fifteen years ago and is currently in stalemate. Since a conclusion of the Round is not likely in the short term, the means of protecting food safety are promoted mainly in harmonization efforts driven by relevant international organizations dealing with standardization processes, bilateral governmental cooperation and voluntary recognition of the equivalence of certifications. ← 97 | 98 →
5. The Issue of Qualification, Its Implications for International Food Safety Governance and Final Remarks
There is one issue that remains at the forefront due to its far-reaching implications: food safety qualifications, which includes product quality. Thus, international trade law tools with reference to safe food mean not only identifying multilevel protection measures in forms of international, regional or bilateral co-operations that safeguard against unsafe, spoiled or counterfeit food, but also mechanisms based on common criteria that facilitate the international monitoring of the use of harmful substances contained in food. It also means checking the authenticity and conformity of the quality and origin indications. Furthermore it implies promoting the mutual recognition of standards and national certifications in the context of limiting their restrictive effects on international trade. The more the observer probes into these mechanisms, the more he or she becomes aware of the many issues at stake, particularly the economic and political interests involved. It becomes evident that health dangers often stem from political and economic choices; the mandates of several international organizations overlap and the variety of ethical and cultural values held by different regions and populations play a fundamental role. But this is not all. Issues like the relationship between food safety and international organized crime recently caused headlines in Italy, in other European countries and in the US, which is particularly alarming15. Last but not least, one should not overlook the debate regarding the use of biotechnology in food production.
In order to prevent misunderstandings, we must always bear in mind that at the international level, the concept of food safety refers to two different situations: the right to (access) food, on the one hand, and the right to safe food and food quality on the other16. There is no doubt that there are points in common, with intersections and some overlap between the two areas, so that for the most part it is not possible to deal with the former without also taking the latter into consideration17. And there is no doubt that the latest contemporary practice in international cooperation and relations takes the issue of food safety and quality as one of the cornerstones of international governance strategies, also relating to ← 98 | 99 → the right to food and the right to health in general18. On the subject of healthcare and food quality in particular, several other important matters converge, especially if food security is also intended as the ‘adequacy’ of food ‘in relation’ to the basic needs and requirements of a given human, societal or local group.
In addition to the aforementioned issues that are often regulated or otherwise addressed by international law and intergovernmental cooperation, there are other, more general or specific points of view. Consequently, this implies (the need for) coordination of actions and cooperation among international organizations in many fields to promote development, environmental conservation, and to prevent and deal with man-made disasters including wars and humanitarian crises, safeguard traditional knowledge and biodiversity, as well as ensuring access to technology and, finally, respecting cultural, traditional and ethical or religious values linked to food.
In fact, food safety is a political, economic and/or cultural matter. Yet it is a ‘global’ one. As such, it needs to be ‘governed’ and not necessarily ‘regulated’ by international cooperation. This can no longer be accomplished simply by using traditional tools of such cooperation. Given the particular nature of food safety, it is increasingly (even within and by international organizations themselves) being addressed using other informal instruments of a more political nature, through mediation, and with soft law. These tools have been shown to be more capable than traditional ones involving and making private parties interact with institutional ones on a local level and in the international arena. And so, on the one hand we find private parties engaged in production and distribution processes, and on the other hand, institutional actors, lobbies and NGOs aim to protect individual interests of a more private nature at the global level, as for example consumer protection associations19.
Using the example of food safety, I highlighted how the numerous issues at stake intersect, which has led some international organizations to extend de facto their sphere of activity well beyond the original boundaries, especially in well-known food crises, such as mad cow disease, bird flu and the poultry dioxin scandal20. The repercussions from these emergencies crossed national borders, with serious consequences both for private operators and global economic growth. Consequently, the direct link between healthcare, food quality, and international ← 99 | 100 → trade has come to light21. This helps explain why we cannot avoid drawing attention to the relationship between food safety and the (evolving) WTO trading system22.
Moreover, it is still a largely unexplored area that reveals interesting potential23. Significant is the role of the WTO’s Committee on Sanitary and Phytosanitary Measures (SPS Committee) in relation to the international harmonization of safety standards by way of cooperation with (and incorporation of) Codex Alimentarius and NGOs to fill what was defined as the “global gap between private standards and international cooperation”24. Similarly, I think this can also be said for the TRIPs Agreement and its implications for food health issues. Other intersections may also come to light with time in relation to the actions promoted in various ‘sensitive’ sectors by the World Intellectual Property Organization (WIPO).
Particularly in respect to TRIPs, while the matter of labeling origin is more clear, at least concerning the existing link between the name of origin and a specific quality of the product, an issue which goes far beyond the economic right of exclusive use of the designation of origin itself, other potential TRIPs issues and/or situations are arising that need to be ‘governed’. These adhere, as already mentioned above, to the protection of biodiversity, traditional knowledge and to the ‘exclusion’ of these from being patented. The debate on the limits of patent rights gives rise to further arguments that are variously supported by international practices. It outlines in a new and heterogeneous way the confrontation among basic human needs between local governments and corporations on the one hand, and the ‘glocal’ human community in a wide sense on the other. The fact is that the discussion is set far away from the traditional North-South approach. In this context, the issues connected with technology transfer entailed by the production of safe and adequate food, as well as with checking safety levels are important to remember. Technical assistance in the checking procedures by richer countries on behalf of developing ones plays an important role too. Finally, there is a need for straight coordination with WIPO’s activity, particularly regarding specific objectives in developing countries.
Lastly, I would like to draw attention to a further aspect of food which has not really been taken into consideration so far, but which, in my opinion, is becoming ← 100 | 101 → particularly worrisome with respect to food market governance in the broadest sense. I am referring to the presence of large corporations in the international market, which dominate food production as a whole25. Indeed, just a few multinational companies are the main operators in the agricultural and food industries in the international arena. The maximization of profit, which is any company’s priority, tends to clash with the societal necessity to safeguard the general public’s most fundamental needs. Biological and food diversity do not necessarily coincide with profit, since the pursuit of profit might entail risks for food safety. We should therefore ask ourselves what role (if any) the WTO or other institutions should play when it comes to safeguarding food safety and ultimately human and environmental health. In fact, notwithstanding the investments and fair competition regimes, as of today, they are not an integral part of WTO regulations.
Indeed, the WTO seems to have assumed a role that goes beyond its primary goal of hindering protectionism and liberalizing international trade. The WTO has reverted to debating non-trade matters, such as food safety. As it currently stands, do necessary food safety requirements relating to internationally accepted parameters take precedence over trade requirements, even within the context of the WTO? There are encouraging signs that we are moving in this direction, where one will be able to say that the obstacle to the balanced performance of trade within the WTO is the ‘absence’ of food safety, rather than national standards of protection, particularly if mutually agreed upon or internationally recognized.
At the beginning of this study, I posed the question of whether international trade law is evolving towards the “Green Beautiful Option”, or in the opposite direction, towards the tremendous “Era of Boycotts and Massacres” described in the movie. Taking an optimistic view, the answer to the question of whether we are headed towards the first option is “sort of, but not yet sufficiently”, and “for sure not” with respect to the other scenario.
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1 See Boisson De Chazournes (2010) and Mavroidis (2012).
2 It’s worth noting that later in the movie it will be Ozam himself who will be defined as a racist by Mila, the protagonist.
3 Referring to the SPS Agreement see EC-Approval and marketing of Biotech Products, WT/DS291/R (2006); Australia-Salmon, WT/DS18/AB/R (1998); with respect to the TBT Agreement see US-Tuna II, WT/DS/381/R (2012); US-Clove cigarettes, WT/DS406/AB/R (2012).
4 Even though there is already concern about the growing power of certification agencies. On recognition of technical and safety standards see Howse (2011).
5 Hufbauer and Cimino Isaacs (2015).
6 For relevant jurisprudence see supra, footnote 3.
7 Along these lines, see Echols (2008), Raustiala (2008) and Scott (2008), with particular reference to the role of the Committee on Sanitary and Phytosanitary Measures and the WTO Dispute Settlement Body.
8 Reference made to decisions listed in footnote 3.
9 WT/DS26/R/USA EC Measures Concerning Meat and Meat Products (Hormones). Complaint by the United States. Report of the Panel, August 18, 1997; WT/DS26/AB/R – WT/DS48/AB/R EC Measures Concerning Meat and Meat Products (Hormones). Report of the Appellate Body, January 16, 1998: Adinolfi, G. 2004, La soluzione delle controversie in Venturini, G. (ed) L’Organizzazione mondiale del commercio, seconda edizione: Milano, Giuffré Editore, 231–241.
10 See e.g. Free Trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part (signed on October 6, 2010, provisionally applied since July 1, 2011). For more information on TRIPs-plus agreements see: Grosse Ruse-Khan (2011), Seuba (2013) and Roffe / Escudero / Seuba (2015).
11 See Taubman / Wager / Watal (2012).
12 See literature cited in supra at footnote 8.
13 On the subject, see Scott (2007).
14 Indeed, the WTO Dispute Settlement Body, though proving to be attentive to issues related to the protection of health, operates within the narrow limits of interpretation of what is set out in the agreements. See for example, in the WTO Appellate Body’s decision EC-Hormones WT/DS26/AB/R, European Communities – Measures Concerning Meat and Meat Products (Hormones), Report of the Appellate Body, January 16, 1998, where it was stated, in reference to the precautionary approach established by Article 5(7) of the SPS Agreement, that such a rule “has not been written into the SPS Agreement as a ground for justifying SPS measures that are otherwise inconsistent with the obligations of Members set out in particular provisions of that Agreement” (para. 124).
15 See for example Saviano (2012).
16 The English language uses the name of food security in the first case and food safety in the second one. There is extensive doctrine on this point. See Moyo (2007); Hospes / van Dijk / van der Meulen (2010); Breman and Termeer (2010); Szajkowska (2010).
17 Hospes / van Dijk / van der Meulen (2010).
18 Johnson (2007); Dunoff (2011).
19 See Raustiala (2008).
20 In this sense, the international economic institutions themselves e.g. the International Monetary Fund and the World Bank, have become increasingly involved in healthcare, food safety and food quality.
21 It also touches on trade in services in a limited sense. For more on the WTO’s GATS Agreement and with reference to the migration of doctors and nurses from the African continent, see Gathi (2010); spec. Aginam, (2010).
22 See Hufbauer and Cimino-Isaacs (2015).
23 In this sense, with reference to the WTO’s SPS Committee, see Scott (2008).
24 See Scott (2008: 263).
25 See Raj (2007); Magrini, (2012).