AGRICULTURAL TRADE: TAKING INTEGRATION SERIOUSLY

1. AGRICULTURAL TRADE: TAKING INTEGRATION SERIOUSLY Presentation by Elisabeth Bürgi, lic.iur, Attorney at Law World Trade Institute Berne, Switzerland

2. Presentation • Introduction • Agricultural Trade: Some Features • WTO embedded in International Public Law • Relevant „Non-Trade“ Legal Benchmarks • AoA: Open for Integration? • Alternatives

3. Agriculture Trade: Discourse

4. 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

5. Large Scale vs Small Scale Production Productivity Difference: 1/500

6. Processed Food • Issue of Tariff Escalation

7. 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

8. Substantial Loss of Diversity in Plant Genetic Resources of Food and Agriculture / New Varieties by Cultivation and Technology

10. Small Scale Agriculture: Sensitivities

11. 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

12. Embedded WTO • Text reflects the Genesis Process • Preamble of the WTO Agreement: Reference to Sustainable Development

13. Embedded WTO • Sustainable Development Concept: Outcome of three development decades -Brundtland Report 1987 -Rio Declaration 1992 etc. • Holistic, Integrative, Future-oriented Approach

14. 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)

15. Integrated Framework: 3 Pillars 4th Pillar: Specific Development Concerns?

16. 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

17. 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 […].”

18. Legal Social Benchmarks CEDAW Art. 14: Specific Rights regarding Rural Women etc.

19. 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

20. Cultural Objectives

21. 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.”

22. Legal Environmental Benchmarks Legal benchmarks in MEAs: • Biodiversity: CBD & FAO Seed Treaty • Fishery • Forest and Soil Protection (incl. water resources) • Climate Protection

23. Legal Environmental Benchmarks • Landscape Diversity: eg. Alp Convention

24. Legal Developmental Benchmarks Declaration on the Right to Development (1986; soft law): Responsabilities of countries to cooperate in order to overcome the gap etc.

25. Others National Security Concerns: i.a. UN Charter

26. 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

27. Integrated Outcome • Decision Making Process? • Substantive Provisions?

28. 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“)

29. 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.

30. 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

31. 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.

32. 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

33. Reform Utopian? Crisis as Chance?