In Agricultural Export Restrictions and International Trade Law: A Way Forward (2012) Robert Howse and Tim Josling examine the WTO trade restrictions that apply when Members consider limiting food exports in food crisis situations.
In light of the Appellate Body’s ruling in the China-Raw Materials dispute, the authors argue that the obligation under Article 12(a) of the Agreement on Agriculture to “give due consideration to the effects of such prohibition or restriction on importing Members’ food security” is not merely procedural. Instead, that Article reflects a substantive obligation that requires WTO Members “to justify using export restrictions as part of a long term strategy to deal with food scarcity or the finiteness of agricultural resources.” They further point out that “Article XX(g) has features that require a degree of evenhandedness between the needs of the domestic population and those of the populations of other WTO Members,” which entail “giv[ing] consideration to the food security situations of different importing countries.” In assessing whether export restrictions complied with these obligations, the authors see little justification for deference to the Member’s subjective evaluation:
“It is not too far afield to envisage a process that obliges countries to either meet a multilaterally agreed definition or to secure a multilaterally recognized expert opinion on food security – both to verify whether a country is truly facing a food security crisis to justify putting export restrictions into place, but also to determine the likely impacts of such measures on its trading partners, taking into account market conditions, and to adjust them accordingly. The AB’s approach in China-Raw Materials suggests no particular deference to the regulating Member’s own judgment that a shortage is ‘critical.’”
Howse and Josling acknowledge that to facilitate this obligation, the WTO should partner with other international organizations that are focused on food security to establish agreed mechanisms to evaluate and recognize critical food shortages.
It remains to be seen whether a WTO panel would be willing to assume such an inquiry by relying on expert opinion and whether such an inquiry would be regarded as legitimate by WTO Members. Certainly, one hopes that this innovative approach will spur debate and action along the lines suggested by the authors.