By James Erlichman
Guardian (London)April 13, 1999
Last week it was bananas. In a month's time it will be beef. A few weeks after that we may be told what milk we can buy. The legal struggle over who controls our food supply has already been lost.
When the World Trade Organisation ruled last week that the United States had won its protracted banana trade battle with the EU, attention understandably focused on the plight of small ex-colonial producer, the Winward Islands, which Britain had sought to protect. Next came concern for Scottish cashmere and Italian cheese producers who are threatened by the $120 million worth of punitive tariffs which the WTO has awarded to the US to compensate it for the lost earnings of its big banana plantation companies.
But, according to legal experts, we should be looking to the future to grasp just how comprehensively control over food, health and the environment has been ceded to the WTO and the unelected forces that control it. 'Legal power in these and other areas shifted back in the early 1990s with few ordinary people actually noticing,' says Geert Van Calster, a member of the Brussels Bar and a consultant to SJ Berwin & Co, the London-based law firm which specialises in international trade.
The WTO was born four years ago out of the Uruguay round of the old GATT (General Agreement on Trade and Tariffs) negotiations. According to Van Calster, Britain and most other countries signed up to the agreement at a time when belief in the virtues of free trade exceeded concerns about food safety, health, animal welfare and environmental damage. And if the WTO has powers to grant the United States $120 million in damages over bananas, then imagine the scope of its power on bigger issues, such as the trade in genetically modified food.
In June, the World Trade Organisation's so-called expert food panel (known as Codex Alimentarius) is expected to rule that the genetically engineered milk-yield booster, BST, poses no threat to human health. Never mind that two scientific committees of the European Commission have raised grave doubts about its safety and want to see the EU moratorium kept in place. Monsanto, the US company which owns BST, will now have a powerful legal lever to overturn any objections from EU governments and citizens.
Even before that, a certain collision is expected on May 13. That is when the WTO has told the European Union that it must lift its 10-year blockade on American beef that has been treated with growth-boosting hormones.
In theory, the WTO's complex rules balance the virtues of free trade against the need to protect people and the planet. 'The problem is that in practice they don't,' says lawyer Peter Stevenson, legal director of the pressure-group Compassion in World Farming. The nub of the issue, he says, is the founding principle of GATT and the WTO: the belief that free trade will reduce the risk of war and make the world wealthy through international capitalism, a principle enshrined in rules which forbid trade discrimination on the basis of any 'process and production methods'. This rule stops a lazy, outmoded producer from blocking imports from an efficient country which has invested in the latest machinery. That seems fine. 'But it would also stop a country which has adopted only free-range methods from blocking imports of battery-farmed eggs,' says Stevenson.
Article 20 of the GATT agreement allows a country to ban imports on the grounds that 'public morals or animal health' are threatened. But only if such a ban is absolutely 'necessary'. 'Necessary' does not mean necessary to protect people and animals. It means 'necessary' in the sense that all other legal avenues have been explored and exhausted.
Even the US has fallen foul of this, trying to block the import of tuna and shrimp when nets also snared dolphin and sea turtles. Both times it was overruled by the WTO disputes procedure on the grounds that other legal avenues were not exhausted, and that existing conservation treaties did not necessarily include the species in question. 'If a measure designed to save a species from extinction cannot survive a WTO challenge, it's hard to believe any animal protection measure will ever be acceptable to the WTO,' says Stevenson.
A few years ago, Tim Lang, now professor of food policy at Thames Valley University, led an investigation into decision-making on food at the WTO. It revealed that the Codex Alimentarius is heavily influenced by the delegates from transnational corporations who pack its decision-making panels. 'If and when the EU moves to ban GM soya or any other genetically engineered food you can be virtually certain that American companies will swiftly force the US government to challenge any embargo under WTO rules,' said Professor Lang.
The Americans, it can be argued, are simply using international law to look after their own interests. But don't be too smug - Agriculture Minister Nick Brown has just voiced his support for American hormone-reared beef, while Blair has been remarkably keen to defend GM foods, despite fierce public opposition. 'The reason is simple,' says a source at the Ministry of Agriculture. 'British industry may have failed at many things, but it is first-rate in the bio-sciences - drugs and GM foods. We have to back our commercial winners, and we will use the World Trade Organisation, just like the Americans do, to profit from its rulings.'
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