We Need a Global Food Safety Agency: Reflections on the Hidden Jurisprudence of the WTO
Peking University Transnational Law Review, Vol. 2, No. 1, September 2013, 162-209
68 Pages Posted: 10 Apr 2013 Last revised: 14 Oct 2015
Date Written: October 31, 2014
Globalization has irrevocably altered the world of food safety. This article focuses on WTO cases about food safety regulation which arise under WTO agreements other than or in addition to the SPS or the TBT Agreements and which are not directly concerned with relations between the WTO and international standardization bodies. It asks: What do these cases - which are not mainly about relations between WTO and international food standards - teach us about the role of the WTO in food safety regulation?
The WTO dispute settlement system deals with food safety more frequently than is sometimes thought. Virtually all such cases were settled, withdrawn or reached stalemate during consultation; in only a very few cases was a panel established. Complainants always won, and the winner was usually of equal or higher income category than the respondent, except when the case went to a panel.
These cases are the 'hidden jurisprudence' of the WTO with regard to food safety. They are mostly resolved, or at least concluded, by bilateral negotiations, sometimes between very unequal parties, rather than by decisions taken by a third party on the basis of multilaterally agreed rules. They also represent the basic philosophy or orientation of the WTO regarding food safety. Food safety is treated as simply another trade issue, rather than as a distinct subject matter with economic, political, social and cultural implications far beyond trade, as it should be. Powerful complainants use the WTO dispute settlement mechanism to export and if possible impose their national standards and practices.
Complainants, such as China, are well-advised for the time being to use a strategy of 'aggressive legalism' or of 'assertive legalism'. China should participate more actively throughout the WTO dispute settlement procedures, especially at the consultation phase.
Neither 'aggressive legalism' nor 'assertive legalism', however, can in any way guarantee food safety.The globalization of local food safety standards through a dispute settlement mechanism designed to settle trade disputes is not an appropriate way to determine which standards should regulate food safety in an increasingly integrated, yet inescapably diverse global food economy. The hidden jurisprudence of the WTO is not a good way to regulate food safety today. We need a global food safety agency.
Keywords: WTO law, WTO dispute settlement, consultations, food safety, China
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