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

NCCRInternationalTrade

AGRICULTURAL TRADE: TAKING INTEGRATION SERIOUSLY

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

World Trade Institute Berne, Switzerland

Tel. +41 31 631 30 80Fax +41 31 631 36 [email protected]

Hallerstrasse 63012 Berne, Switzerlandwww.nccr-trade.orgwww.wti.org


Presentation

1. WTO embedded in International Public Law

2. Concept of Sustainable Development

3. AoA: International, related standards?

4. Logical Consequences

5. Question




TRADE RULES: EMBEDDED PROCESS





1947 GATT

„trade liberalization was embedded within a political commitment […] to the progressive, interventionist welfare state;

to a particular political and social vision, including at the same time respect for diverse ways of implementing this vision […]“

Howse, 2002“





International Process towards Sustainable Development:

WTO Agreement, Preamble:„[…] expanding the production of and trade in goods and services, while allowing for the optimal use of world‘s resources in accordance with the objective of sustainable development […]“




„CONSTITUTIONALITY?“

„Constitutional“ Principles of WTO and AoA

versus

Agreed Regulations?




SUSTAINABLE DEVELOPMENT

Concept of Sustainable Development:

-evolved in the late eigthies / early nineties

-answer to the increasing amount of „international community interests“ (Bruno Simma)

-culmination of a fragmented process




CONCEPT OF SUSTAINABLE DEVELOPMENT

„Umbrella“ Concept:

-merge the various international community interests

-while applying certain given procedural and normative standards





Basic Legal Documents:

-Brundtland Report

-UNCED Documents (Rio Declaration, Agenda 21)

-Follow-Up Documents (UN Millenium Declaration 2000, Johannesburg Declaration on Sustainable Development 2002 )





Concept: Consisting of 7 Principles

Inter alia:• Principle of Intergenerational Equity• Principle of Common but Differentiated

Responsabilities

Core Principle: Principle of Integration




PRINCIPLE OF INTEGRATION: 3 Pillars?

Social Objectives

Economic Objectives

Environmental Objectives

4th Pillar: Specific Development Concerns?5th Pillar: Cultural Concerns?




AGRICULTURAL TRADE: Relevant Standards?




SOCIAL STANDARDS

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.




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 […].”




SOCIAL STANDARDS

CEDAW Art. 14: Specific Rights regarding Rural Women

etc.




CULTURAL STANDARDS

• UNESCO Universal Declaration on Cultural Diversity

• UNESCO Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions (i.F.18.3.2007)




ENVIRONMENTAL STANDARDS

• Biodiversity

• Water, Forest and Soil Protection

• Fishery

• Climate Protection




ENVIRONMENTAL STANDARDS

• Landscape Diversity: eg. Alp Convention




DEVELOPMENT STANDARDS

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

i.a. Responsabilities of countries to cooperate in order to overcome the gap

s. also Art. 2 ICESCR




SECURITY CONCERNS

National Security Concerns:

i.a. UN Charter




ECONOMIC STANDARDS

Basic „Constitutional“ Principles of International Trade Agreements:-Transparency-Legal Certainty-Non-discrimination (notion differs from human rights discours)-Peaceful Settlement of Disputes-Efficiency-Open Market System: Policy Intervention by members states only if necessary




OPTIMAL, INTEGRATED OUTCOME?

Impacts of the AoA Regulations are optimal, when all the benchmarks are respected and promoted at most




OPTIMAL, INTEGRATED OUTCOME?

Decision Making Process:Structure according to established democratic standards,i.a. impact assessments ex ante and ex post

Substantive Rules:-Treat different situations differently, allow for complexity-No „No way back principle“-Leave as much policy space as necessary-Policy Measures have to be justified by referring to recognized benchmarks etc.




AoA: ALTERNATIVES?

• Do the current rules comply with these criteria?

• Alternatives?

> Brainstorming Workshop in November




WHAT STANDARDS PREVAIL?

Conflicts of standards: Hierarchy? (i.a. VCLT)

-Prevalence of UN Charter?

-jus cogens; obligations erga omnes

-higher level of governance

-lex posterior

-Other Criteria based on normative value?




WHAT STANDARDS PREVAIL?

Examples:

-Indonesia (right to food) vs Malaysia (right to food)

-Switzerland (Biodiversity; cultural diversity) vs Kenya (right to food)

-EC (clima protection) vs Brasil (North-South solidarity)




DISCUSSION

Thank you for your suggestions!