Friday, March 30, 2012

ASIL Cable: Global Trade and Natural Capital: Ecosystems and Export-led Agricultural Strategies

This panel grappled with the environmental and social complexities of export-led agricultural strategies. Tracey Epps of the New Zealand Ministry of Foreign Affairs offered the theory that liberalized trade, in conjunction with enforceable rules, can minimize the negative effects of increased agricultural production. Drawing from New Zealand’s experience as a major agricultural exporter, Ms. Epps advanced the proposition that agricultural liberalization and environmental sustainability are not mutually exclusive. Ms. Epps’ thesis rested on the assumption that trade is critical for meeting the global demand for food, a premise called into question by Professor Carmen Gonzales of Seattle University School of Law who instead suggested that existing trade rules reinforced food insecurity.
Starting from the proposition that food insecurity is a function of poverty rather than food scarcity, Professor Gonzales situated her remarks about agricultural trade against a backdrop of three inter-related crises—1) loss of biodiversity in food crops; 2) food insecurity; and climate change. She emphasized that the current food production system rooted in a global agricultural market satisfies neither prongs of the Brundtland Commission’s definition of sustainable development—it does not meet the food needs of the present generation and is drawing down the resource base that future generations will need to meet their needs. Professor Gonzales therefore suggests a focus on small-scale sustainable agriculture as a better, more sustainable alternative.
Professor, Dr. Fabio Morisini of Federal University of Rio Grande do Sul School of Law turned attention the panel’s attention to nuances of the trade regime itself. He argued that the WTO has all the tools necessary to allow effective environmental governance over agriculture. Drawing heavily on the WTO Agreement preamble, Prof. Dr. Morisini advanced the proposition that GATT Article XX can be interpreted as encompassing the principle of common but differentiated responsibility. From this interpretive starting point, Prof. Dr. Morisini proposed that the WTO might integrate climate change into its decisional matrix.
Gregory Spak of White and Case questioned whether the interplay between economic policy and sustainable development is best fleshed out by litigation in the WTO. He worried that the vagaries of litigation strategy and persuasive advocacy might exert an undue influence on outcomes. Mr. Spak emphasized the uneven nature of the available WTO governance provisions—consisting of very specific trade rules governing subsidies and tariffs, set against generalized exceptions permitting environmental protection under unspecified conditions. Under these circumstances, he noted that states have no other option than to learn the borders of those exceptions on a case by case basis, and expressed concern that this framework was too ad hoc to create a consistent and predictable international legal system.
A lively discussion, ably moderated by James Gathii of Albany Law School followed.

(This post is cross-posted at ASIL Cables)

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