SOME THOUGHTS ON FOOD SECURITY AND THE LAW OF THE WORLD TRADE ORGANIZATION.

• Author: Hughes, Valerie
• Position: Response to article by Anne Orford in this issue, p. 1

1. INTRODUCTION II. INTERNATIONAL FOOD FLOWS: FROM THE "PERIPHERY" TO THE "CENTRE"? III. WTO LAW AND DOMESTIC FOOD SECURITY POLICIES 1. EXPORT RESTRAINTS A. GATT ARTICLE XI B. ARTICLE 12 OF THE AOA C. GATT ARTICLE XX 2. DOMESTIC SUBSIDIES AND SUPPORT IV. THE BALI MINISTERIAL DECISION ON PUBLIC STOCKHOLDING FOR FOOD SECURITY PURPOSES V. CONCLUSION I. INTRODUCTION

   We are grateful for the opportunity to reflect on Anne Orford's thought-provoking article. Orford is one of the most original and provocative international legal scholars working today, and her new article is full of intriguing ideas. Orford's body of work is characterized by deep research, critical analysis, and a strong commitment to global justice. All of these characteristics are on prominent display in her new article, which we are sure will spark wide-ranging and perhaps heated debate in the international trade law community and beyond.

   The questions raised in and by Orford's article are many and varied. It is not our intention to discuss each and every one. Rather, in this short contribution, we highlight and discuss a number of points that may be of interest to those considering the relationship between WTO law and food security. In Part 2, we take a closer look at Orford's claim that contemporary international trade law perpetuates a colonial paradigm pursuant to which food flows uni-directionally from the "periphery" to the "centre." Parts 3 and 4 consider Orford's claim that international trade law is impelled by an impulse to "limit[] state intervention" by examining WTO provisions concerning export restraints (Part 3.1) and domestic subsidies and support (Part 3.2). Part 4 briefly describes the significance of the Ministerial Decision on Public Stockholding for Food Security Purposes, adopted during the Bali Ministerial Conference at the end of 2013. Although our discussion of these provisions cannot be comprehensive, we hope to show that WTO law provides more flexibility in terms of domestic regulation than Orford's article recognizes.

   Our aim in writing this response is not to "defend" uncritically, as it were, the WTO or international trade law. We of course recognize the vital importance of food to human well-being, and the right to food is recognised by the vast majority of states. The contribution of WTO law to food security or insecurity must, therefore, be examined honestly and soberly. It is important, however, that theoretical claims be tested against all available evidence. In our view, some aspects of Orford's article give insufficient attention to the actual contours and content of international trade law. Our point is not that WTO law need not evolve to better address this (and other) issues, but that any discussion of the role of the WTO and international trade law in the global food system must take account of the sometimes mundane specificities of the field, many of which are not adequately accounted for in Orford's article despite the important role they play in the movement of food within countries and internationally.

2. INTERNATIONAL FOOD FLOWS:FROM THE "PERIPHERY" TO THE "CENTRE"?

   One of Orford's core claims is that contemporary international food flows are uni-directional: food moves from the starving periphery to the over-fed centre, and in this way continues, under the guise of free trade, "the social, legal, and environmental legacies of settler colonialism." (1) This account or vision of international food flows appears to be the central problematique underpinning and impelling Orford's analysis. In her own words, her project sets itself the task of making "sense of the uneven nature of food insecurity, and the tendency to reproduce patterns familiar from the colonial era in which poorer countries shipped the food they produced to richer countries, while at home their people starved." According to Orford. (2)

   [I]nternational law no longer allows the older forms of colonial power to operate--it has prohibited annexation of territories through force or the use of gunboat diplomacy. Yet other forms of colonial power, organized around free trade and constraints on local administrators, perhaps do continue to hold sway. Something in the routine operation of international economic life, organized around global value chains, free trade, and open markets, produces a system of compulsion such that food is exported to foreign lands while the people growing it are undernourished.

   Orford's view, then, is that international economic law has the effect of entrenching a particular colonial or imperialist model of trade which, without physical violence but nevertheless coercively, forces developing countries in the global South to produce raw materials for consumption in the developed world. By imposing a separation between those who produce food and those who consume it, by ensuring that agricultural products grown in one part of the world are consumed by persons living in another, international trade law directs the international movement of food in a way that has "stark distributive consequences." (3)

   Before considering whether this uni-directionality is, as Orford suggests, compelled by international economic law--that is, before considering whether the law of the WTO does or could, from a causal or normative perspective, shape international trade in the way Orford suggests--it is worth asking whether the vision of international food flows sketched above is descriptively accurate today. In other words, is it correct that food tends to flow from the periphery to the centre, and that this movement of food from producing developing countries to and for consumption in importing developed countries is responsible for today's food instability, especially in the global South? Is this account supported by what we know about contemporary food trade patterns?

   Not being economists, we do not wish to suggest that Orford's account is necessarily untrue. It does, however, seem to us to raise certain questions. We wonder how this view accords with the fact that about 60 per cent of developing countries' agricultural exports goes to other developing countries, and that the vast majority of agricultural trade is in processed food rather than rice, wheat, or soya. (4) It is also striking that Orford's argument about uni-directionality appears to be at odds with the widely accepted understanding that food insecurity arises in export-oriented developing countries precisely because access to developed markets remains difficult. According to this understanding, food insecurity arises not because developing countries cannot keep their produce for domestic consumption, but, to the contrary, because their export opportunities remain overly restricted as a result of protection of developed country markets and the need to compete on the world market with subsidized agricultural products from those very same developed countries. (5)

   In turn, reduced export opportunities may significantly reduce employment and income opportunities for farmers (6) and their families and communities, which perpetuates and exacerbates conditions of poverty in which "many households are simply too poor to purchase the food that is available." (7) On a macro level, many developing countries depend on export revenues "for a substantial portion of their foreign exchange earnings." It has therefore been said that "food security [can be promoted] at the national level by guaranteeing a reliable revenue stream with which to purchase food." (8) This is, as we understand it, why policies of self-sufficiency--sometimes called food sovereignty--are not touted as solutions to food insecurity even by those who are critical of the current international food situation. (9)

   Thus, a commonly held view is that food insecurity is not caused, as Orford suggests, by the legal incapacity of producing states to prevent the exportation of essential foodstuffs. To the contrary, food insecurity is linked to poverty, (10) which itself stems from adverse market and regulatory conditions that greatly hamper the ability of developing countries precisely to export their agricultural products. Agricultural protectionism, including through the use of high tariffs, non-tariff barriers, and subsidies, has thus "exacerbated food insecurity in the global South by depressing agricultural commodity prices and undermining the livelihood of poor farmers; at the same time, the import barriers maintained by ... wealthy nations deprive[] developing countries of the foreign exchange earnings necessary to finance imports and promote industrialization." (11) In this sense, more trade "can help to address under-nutrition by raising incomes, cheapening food and increasing the diversity of food available for consumption." (12)

   It seems clear, then, that many commentators see food insecurity not as a result of the covert continuation of colonial-era trade policies, but of a new and more complex agricultural environment in which developed countries as well as developing countries have important domestic agricultural sectors. The problem, in other words, appears not to be that trade flows are uni-directional--from the periphery to the centre--but that exports from developing countries still face barriers to accessing world markets. Thus, as the United Nations High Level Task Force on the Global Food Security Crisis wrote in 2010, "more liberalized international markets would contribute to global food and nutrition security through increased trade volumes and access to diverse sources of food imports." (13)

   It is not clear to us how Orford's uni-directional description of food trade flows takes account of these facts. Orford's article presents contemporary international trade law as a descendent of colonial trade policy, a way of "securing" control over colonial resources even "after decolonisation." (14) Yet it seems difficult to reconcile this view with the frequent calls by developing countries for more, and...