Some observations about (food) safety and security
Helene Albrecht^* I. Introduction

Food scandals have accompanied the last decade, including hormone treated meat and the mad cow disease¹ , contamined baby milk powder² and an E coli outbreak³ . It is not only risk to human but also to animal health and biodiversity which is imposed by these incidents, the latter being complained of by consumer and environmental groups alike. The extent to which policies for economic growth, investment and international trade relations are involved in these developments are not easily traceable for the civil society and find outlets rather in political recriminations than in a clear analysis of trade-environment dilemmas.

This article approaches the lacuna by firstly looking at three recent poultry cases fought out between the US, China, Russia and the EU. The trade disputes shed light on working mechanisms, scope and inherent conflicts of food relevant agreements concluded in the Uruguay Round, up and foremost the Agreement on Sanitary and Phytosanitary Measures (SPS Agreement) and the Agreement on Agriculture. The next paragraph describes conflicts between citizens' concerns and legal-economic organisation under the WTO that becomes obvious in case law such as Japan-Apples, EC-Hormones and EC-Biotech⁴ ; it also points to the fragmentation of international legal regimes and perceived limits of the law to mitigate political controversies. ⁵ What is more, the resulting lacuna has translated into tensions within foreign relations which run the risk of blocking sight on substantial points of departure as evidenced in academic discourse.

A positive, if not sustainable residue of the food safety dilemma is the world-wide call for transparency and restoration of traditional and more sustainable farming practices and food production.⁶ Accordingly in its final section the article refers to assistance the law currently provides in order to achieve appeasement and sustainability. It will be argued that if realised and organised with care, new processes in the production and organisation of food could be able to contribute to long-term political and economic stability reaching far beyond food supply and consumption.

II. The desperate poultry walk around

In 2009 the US banned imports of Chinese poultry from their market by virtue of s 727 of the Omnibus Appropriations Act 2009⁷ . The preparation of an application of the health safety measure involved a complex scenario of domestic actors and activities: firstly, the US Department of Agriculture (USDA) and its subordinated agency, the Food Safety Inspection Service (FSIS) were instructed by the US Congress to restrict funds for poultry imports from China; secondly Committees of the USDA were urged to take action plans such as 'the systematic audit of inspection systems [and] of all poultry and slaughter facilities that China would certify to export to the U.S.'⁸ ; finally, the FSIS was instructed to request information from the Chinese authorities in order 'to understand the nature and implication of revisions in food safety laws, regulations, and inspection and control procedures' that China had enacted since 2006.⁹ In fact, the import ban dated back to a US moratorium from 2008 which denied China benefits accruing under the WTO. Since 2004 both countries had sought to establish equivalence of their poultry slaughter inspection systems, whereby equivalence had been determined by the FSIS in 2006 following the revision of Chinese food regulations. Though, as the panel's report unscrambles requirements subjecting China to further evaluation of its rule making process unfortunately coincided with the entering into force of the Consolidated Appropriations Act 2008.¹⁰

Following the trade restrictions China requested consultation with the US in April 2009 as it considered the trade ban to be inconsistent with Art I: I and Art XI of the GATT providing for the guarantee of any privileges and advantages to the 'like products' of all other contracting parties and the prohibition of trade restrictions respectively.¹¹ The unsuccessful consultation procedure was followed by a request to establish a panel in June 2009. China left it to the Dispute Settlement Body (DSB) whether the US measure would also violate obligations under the SPS Agreement. The panel as established in September 2009 insisted on an extension of the usually six months long revision period 'due to the technical complexity of the matter'¹² The final report was circulated in September 2010 and indeed found violations of the SPS Agreement besides claims China had brought under the GATT¹³ . According to the report the US had not based their safety measure on a proper risk assessment, its protective motivation was maintained without scientific evidence and finally, the legitimate 'appropriate level of protection' which gives WTO Members room for manoeuvre in health safety issues was applied in an arbitrary and discriminatory manner against China.¹⁴ There was no need to recommend that the US brought S 727 into conformity with its trade obligations as the provision had already expired.

Nevertheless, the case had repercussions: already in 2009 China countered with anti-dumping and countervailing duties on chicken broiler products from the US, thereby causing losses about 90% to the export of poultry and directly hurting 300,000 farmers and workers.¹⁵ Under the Anti-Dumping rules and the Agreement on Subsidies and Countervailing Measures¹⁶ countries are permitted to impose duties on imports if these are subsidised in their home countries, sold below market price¹⁷ and therefore may cause economic injury to their own industry in the same market. The application of these remedies requires the observation of legal standards and transparency, which had been neglected by China according to US Trade Negotiator Ron Kirk who on these grounds justified the filing of a complaint by the US authorities.¹⁸ Although tariffs against the US increased between 50% and 100% and presumably resulted in the loss of $1 billion at the time of writing China rejected the claim. It might be right to do so: consumer taste in China has recently swapped from chicken to pork which, res ipsa loquitor must interrupt the 'steady, high-margin business [of] selling unwanted parts to China' which the US enjoyed before 'the battle over chicken erupted'.¹⁹ Since Russia has just joined the club of world traders²⁰ it completes the round dance of poultry which, by the way, also includes a decade-long trade dispute between the EU and the US: since 1997 Europe has rejected US poultry treated with four anti-bacterial chemicals although the meat had been approved by the US Food and Drug Administration in the late 1990s.²¹ Imports of poultry from the US to Russia which were initiated in the early 1990s by President Bush as economic aid shipments have now dropped by more than 50% and will potentially force Americans to eat previously despised dark poultry meat themselves instead of preferable white chicken breasts. Russia who disposes of vast natural resources tries in general 'to wean the country from imported foods.'²² However, only further research reveals the true extent of damaging competition to the US poultry market: the year 2002 marks the foundation of the European Poultry Club which runs partnerships with the Russian Poultry Union and the China Animal Agricultural Association; the 'independent club' which is registered in Frankfurt, Germany, and managed by the German Agricultural Society stretches also to Argentina, and expands towards ever more trading partnerships within the European Economic Area thereby up and foremost targeting potential new EU member states.²³

In times of overall decreasing resources²⁴ one might wonder what the economic rationale and benefit are behind such trade in poultry. The following sections attempt to find answers while looking at trade in agricultural products and food regulation under the WTO.

III. Trade in agricultural products and its realisation through international economic law

Since the establishment of the World Trade Organisation under the Marrakesh Agreement²⁵ several agreements affecting agriculture have been working towards progressive trade liberalisation in order to 'establish a fair and market-orientated agricultural trading system'. ²⁶ In 1998 trade in agricultural products constituted shares in total merchandise trade only about 10, 5 % worldwide; their share in primary product export was 52, 4 %.²⁷ However, statements of agribusiness leaders are more telling about the significance of world trade in agricultural products: the latter functions as engines for many other economic branches.²⁸ The plantation of cotton involves the use of pesticides and herbicides in order to tackle side effects of monoculture; the use of modern machinery allows for large-scale economies and efficiency²⁹ , and new opportunities for the application of biotechnology include the creation of lucrative Intellectual Property Rights (IPRs)³⁰ . The cotton industry creates 200,000 jobs while accounting for $25 billion in products and services: the US is after China the second largest exporter of cotton even though it has grabbed the headlines for subsidising its cotton farmers contrary to the WTO rules³¹ and displacing other players, in particular African small farmers from the markets.³² Similar connotations apply to meat producing industries: intensive livestock breeding depends on the use of hormones and chemicals in order to achieve faster growth and to protect animals from infections and diseases that frequently occur in the context of intensive stock rearing. ³³ A leading poultry producer such as 'Wiesenhof' in Germany processes 260 million chickens every year;³⁴ the British pork industry is able to fatten 'pigs up for a kill in just three months' as opposed to China who needs one year for the same process; British pig farmers also produce twice as many piglets as the Chinese thank to Britain's world leading position in pig genetics. ³⁵

With the Uruguay Round fresh stimulation has been conferred in particular to world trade in agricultural products and food through strengthening of former trade arrangements, ³⁶ yet both sectors sensitively touch upon the interface between nations' sovereign powers, cultural and traditional farming practices, geopolitical circumstances, consumer tastes and economic-political endeavour in the search for economic growth. While the Doha Round repeatedly has unfolded controversies and difficulties even resulting in failure of trade negotiations³⁷ the underlying trade agreements continue to set clear instructions Member States must follow if they want to benefit from global trade both as exporting and importing nations.

The Agreement on Agriculture, the Agreement on Technical Barriers to Trade (TBT Agreement), the Agreement on Sanitary and Phytosanitary Measures (SPS Agreement) and the Safeguard Agreement each regulate particular aspects of free trade in agricultural products and food. The Agreement on Agriculture strives for full market access especially for developing countries through regulation and restriction of domestic subsidies thereby tackling protectionism³⁸ . Member States make commitments to progressively and substantially reduce domestic support and export subsidies during an ongoing process³⁹ . The commitments must follow disciplines which are set out in Art 3-13 of the Agreement; they involve complex assessments of domestic agricultural organisation, conditions and priorities. As countries' trade relations often date back to colonialism or are anchored in preferential trade agreements⁴⁰ conflicts with the WTO are pre-programmed; they also often relate to deficiencies in human rights and environmental protection.⁴¹ The Agreement on Agriculture co-acts with the SPS Agreement and provides for special and differential treatment of developing countries and least-developed countries.⁴² Reform processes are pending since the DOHA Round in 2001⁴³ and negotiations so far did neither for developing nor for developed countries achieve unambiguous results.⁴⁴ Commentators often refer to cultural differences between national farming practices and traditions as causes for disruptions in communication and harmonisation; other point to the political weight of domestic electorates. ⁴⁵ There might be a general move towards environmentalism which does not sit well with the purposes of pristine multilateral trade negotiations: In Europe as well as in the US regionalism increasingly tends to support green agriculture and moves away from GM and the use of chemicals in agriculture.⁴⁶

Some release for puzzles and resulting inconsistencies under the Agreement on Agriculture is provided by the TBT Agreement which balances Member's regulatory autonomy with rights and benefits other contracting parties obtain under the GATT and the Marrakesh agreements.⁴⁷ The TBT Agreement is less restrictive than its counterpart, the SPS Agreement and allows for technical regulations that pursue legitimate objectives such as 'national security requirements, the prevention of deceptive practices and the protection of human health and safety, animal or plant life or health, or the environment.'⁴⁸ Hence it has become practice to accommodate non-trade aims under the Agreement which may otherwise fall short within global trade organisation, up and foremost labour rights and high environmental standards. Through certification and licensing any international organisation may set labour or environmental standards which meet customers' ethical expectations with the effect of widening markets for some while restricting access for others.⁴⁹ Though the TBT Agreement has not been able to work towards an international approximation of socio-economic rights or protective environmental regulation⁵⁰ ; the recent Tuna-Dolphin decision rather suggests an engraving of the enduring trade-environment divide.⁵¹ The TBT Agreement in case law occurs in the context of consumer welfare, and is invoked by WTO members in order to circumvent the inexorable science based requirements of the SPS Agreement.⁵²

The SPS Agreement is equally concerned with the protection of human, animal or plant life through Member States' measures against risks which must not arbitrarily and unjustified discriminate between them and must be based on scientific evidence. It is considered to be one of the most intrusive and controversial agreements⁵³ and has soon entered the stage after the establishment of the WTO in major cases such as EC-Hormones I, the abovementioned poultry cases and most recently in the EC-Biotech case, the latter eventually raising profound questions as to interpretative methods and competences of the WTO panel and as regards the interactivity of different legal systems.⁵⁴ The Agreement itself derives its legitimacy from harmonisation of sanitary and phytosanitary measures under the auspices of international standard setting bodies⁵⁵ and from reliance on scientific expertise in the assessment of risk which can be obtained at national or international level.⁵⁶ Criticism has been stated against the working mechanisms of international authorities ⁵⁷, insensitivity towards different perceptions of risk and the ignorance of wider contextual factors opposing unrestricted imports of hormone-treated meat, foreign fruits and vegetables and genetically modified organisms. Before plotting the evolution of case law under the SPS Agreement and approaching the complex cultural and political problematic of food production and regulation the article wanted to illustrate the Safeguard Agreement shall not be unmentioned. It enables states to apply safeguards in the case of serious injury or threats of serious injury to their domestic industry due to the unforeseen increase in imports. The components of the safeguard agreement have often been explored in agricultural disputes such as US-Lamb and US- Wheat Gluten⁵⁸ whereby again it became clear that domestic dynamics and conditions, mostly unpredictable for a variety of reasons were not compatible with commitments under the international trade obligations of the GATT and the WTO. ⁵⁹

IV. 'The Food Safety Fortress'-protection for an unsettled global economy?

Meanwhile citizens are used to address food concerns through media, in particular the internet. There are a multicity of NGOs involved in the fight against pesticides, food additives, genetically modified food and organisms, not to mention activist organisations such as Greenpeace, Friends of the Earth and World Wide Fund. Parallel to their activities there is the 'hidden world' of food regulating agencies, committees, international organisations. ⁶⁰ Though established and provided for in legal provisions they are not easily accessible, the more as procedural rules involve time-consuming processes and consultation. A view on European food regulation might illustrate some ramifications: the European Food Safety Agency (EFSA) as established under the Food Regulation⁶¹ evaluates and authorises products following scientific risk assessments. Food regulation similar to the regulation of chemicals falls under Art 114 TFEU (approximation of laws) which prescribes procedures Member States must follow if they wish to maintain their own regulatory regimes or to introduce new protective measures⁶² ; it is furthermore subject to Art 206 and 216 TFEU governing external competences of the EU in common commercial policy and in respect of international agreements. In addition measures under Art 114 TFEU are subject to the new Comitology procedure under Art 290 and 291 TFEU that confers new powers on the European Commission in the realm of implementing and delegated acts.⁶³ Accordingly trade conflicts involving food and agricultural products among EU member states and with third countries are not decided under Title XX 'Environment' Art 191-193 TFEU although their claims often address environmental concerns from water pollution to soil contamination. The EU therefore mirrors to a certain extent a trade-environment divide which is familiar to world trade since times of the GATT 1949.⁶⁴

When the EC Beef⁶⁵ dispute was decided in 1998 it pointed to the unfortunate clash of multiple occurrences. In Europe strong opposition against hormone treated meat had already evolved in the 1980s.⁶⁶ Mothers in Italy had ascertained physical abnormalities in their children after the consumption of school meals containing DES charged beef⁶⁷ . Their alertness was dramatically enforced by the outbreak of the mad cow disease in the several European countries which was referred to the unconcerned feed of cattle with crunched parts of their own conspecifics.⁶⁸ European legislators reacted soon and in 1981 passed Council Directive 81/602 according to which 'in the interest of the consumer, the administering to any animal of stilbenes and thyrostatic substances must be prohibited.'⁶⁹ The ban concerned the method of production rather than the product characteristics of the meat, a distinction which would matter in the context of the later dispute. In 1985 the EU supplemented its ban through a further Directive after consultation with the Scientific Committee for Food and the European Parliament; the Directive, when becoming effective in 1989 affected US exports of beef offal in the value of $100.⁷⁰ The US had already attempted to hold the ban off under principles of the Standards Code⁷¹ which in essence anticipated claims later tightened under the SPS Agreement: there was no scientific justification for the ban which created unnecessary and disguised barriers to trade. As the EU refused to bring the case before a panel, the US imposed 100 per cent duties on food imports from Europe to the US which were answered by European retaliations against US exports, all this happening in the course of the Uruguay negotiations. After the conclusion of the Marrakesh Agreement hormone containing products were considered to be safe by scientists during a conference in Brussels⁷² and were followed by the filing of a complaint by Canada and the US against the still resistant EU in 1996. One year later the WTO found the EU in violation of Art 3:1, 3:3, 5:1 and 5:5 of the SPS Agreement and imposed 116 million Euros retaliation costs on the defending party. Among the most important outcomes of the case was the interpretation of the precautionary principle which was not accepted as self-standing environmental principle but as an incorporation of the SPS Agreement⁷³ and the steadfastness of the required science based risk assessment which will receive some extra consideration below. ⁷⁴ It is also noteworthy that the dispute did not end at this stage: the final decision in the EC-Hormones dispute was given by the Appellate Body in 2010 and reveals a remarkable paradigm as will also be highlighted below.
In the meantime the insistence on the SPS Agreement would assist the birth of another aspiring export article, namely genetically modified organisms the commercialisation of which had been pursued in the US since the mid 1970s. The circumstances are illustrated in an analysis issued by the Council of Foreign Relations and anticipated later developments in Europe: in the mid 1970s US research pioneers in the field of biotechnology called for a moratorium on grounds of a scientific challenge to the previously presupposed determinism of genes; the moratorium was supplemented by regulations on behalf of the National Health Institute. However, a US trade deficit in the 1970s, the oil shock from 1973 resulting declining competitiveness against the expanding European Community and Japan's rise as technological super power probably played in favour of a strengthened interest in accelerated commercialisation and marketing of the biotechnology. ⁷⁵ Against the precaution and criticism of American scientists the Congress in 1980 pushed through legislation in favour of GMs whereby the White House assigned primary responsibility for the regulation of biotechnology to the Cabinet Council on Economic Affairs rather than to the Environmental Protection Agency. Correspondingly the European Council adopted the first legislation on the Deliberate Release of GMOs in 1990.⁷⁶ Consumers and scientists on both sides of the Atlantic remained equally opposed and concerned. Feeling confident with traditional plant breeding techniques, for example in the case of nectarines which are in fact modified peaches, the pace with which GMO crops were released on the US market was almost shocking: within 3 years ¼ of US cropland was cultivated with GM crops, turning 55% of soybeans and 35% of corn production into GM food and in addition making an overall profit of 16, 5 billion dollars from exports of GM wheat, maize and soybeans from the US to the EU in 1995.⁷⁷ Questions of liability for damage sought to address the deepening rifts between international economic and environmental legislation. In Europe citizens' concerns were politically responded by the establishment of a moratorium from 1998 which 2002 postponed further authorisation of GM crops before leading to the current framework for GMOs.⁷⁸

The overall controversies culminated in the transatlantic dispute of EC-Biotech where the US, Canada and Argentina brought a claim for three categories of measures affecting their imports into the EU, among those the abovementioned moratorium. The complainants parties based their arguments on violations of the SPS Agreement, the TBT Agreement and the GATT whereas the EU sought to base its defence on three rules of international environmental law, namely the application of the precautionary principle, the Convention on Biodiversity and the Cartagena Protocol on Biosafety.⁷⁹ The attraction of the panel's decision lies in its different approach to both sets of laws. In the case of environmental provisions, in other words non-WTO sources it embarked on a restrictive attitude as the US as the only party had not ratified the multilateral environmental agreements ⁸⁰, whereas it admitted extrinsic material from international organisations, scientific experts and NGOs.⁸¹ The 1000 page long report raises profound issues to the fragmentation of international law, the interdependence and concept of 'mutual supportiveness' between the WTO and other institutions and the interpretation of international conventions⁸² : for the panel's decision-making process constructions under the VCLT⁸³ were decisive for its ability to define the parties to non-WTO legislation and to consider non-WTO sources as informative according to 'their ordinary meaning'.⁸⁴ For Margret A Young the dispute became another inducement to highlight the lacking correspondence of international environmental conventions and international trade obligations, her analysis of global governance of fishing reserves points to the need for interactivity of different international legal systems.⁸⁵ The EU settled the Biotech case by admitting 10 GM plants on European markets thereby avoiding any retaliation costs which however, did not release form enduring internal and intergovernmental tensions. Many European countries have challenged further release and cultivation of GM plants on valid grounds ⁸⁶; there is a European 'GM-free zones movement'⁸⁷ and a legislative stalemate which struggles between deference of more sovereign powers to member states and the broader consideration of economic aspects.88

Worth mentioning is the recent decision in EC-Hormones II ⁸⁹ : making up for the previous deficit in scientific evidence as determining factor in the 1998 panel decision the EU gathered evidence from 35 scientists for carcinogen effects of hormones it sought to ban and initiated change of course: in future WTO panels will have to review SPS measures 'in light of the Member's regulatory objectives and risk assessment approach' that must only conform to a 'minimum scientific validity requirement'; diverging scientific opinions will be included and 'insufficient scientific evidence must be evaluated in the light of the WTO Members' chosen level of protection and new scientific evidence'.⁹⁰ The trend to a 'de novo' standard of review became already apparent in the previous case Australia-Apples ⁹¹ where the AB admitted two visions of risk: one being a 'holistic-risk logic', the other a 'quantitative risk logic'.⁹² This opens the scope for inclusion of other values into food related trade disputes with, according to Jacqueline Peel 'considerable potential [...] to provide a useful model for environmental dispute resolution in international adjudicatory fora beyond the realm of the WTO'.⁹³

Even though EC-Hormones might herald a new phase in trade in agricultural products and food regulation, injuries and ill-feeling are likely to remain if not processed; overall problems agriculture faces on a global scale and their impact on global economic recession might worsen perplexities.⁹⁴ The following sections attempt to trace backgrounds of actor's diverging perspectives and potential overlapping points.

V. 'Some bones to pick'-or 'The overall loss of (food) culture'

Looking at the culture of food profound differences become obvious. The word 'diner' stems from the Gallo-Romance verb 'desjunare' (to break one's fast) and in the 13th century evolved into French and English 'disner'-'dîne' and 'dinner. From there onwards it referred to a variety of cult and custom according to the social class who adapted it for its purposes. ⁹⁵ In contrast, the word 'diner' means a 'restaurant in the shape of a railroad car' in American tradition which firstly was created by Walter Scott in 1872 when converting a horse-drawn wagon in order to protect workers from foul weather to whom he offered sandwiches.⁹⁶ Marsha A. Echols sets 'food' in the context of culture, commerce, science and analyses historical developments of food regulation from the Old Testament and Koran up to effects of an industrialised agriculture, eventually resulting in science-based risk assessments.⁹⁷ The anthropologist Madeleine Leininger has identified nine 'fundamental universal functions of food' reaching from body energy, biological survival, social cohesion, religion, taboo, status symbol, psychological needs and security to medicine.⁹⁸ According to Kwang-Chih Chang' few other cultures are as food orientated as the Chinese: the nature of food is directly linked to human nature and preserves good health as diet and medicine. ⁹⁹ The profound meaning of culture again has been recognised by human right representatives and the UN bodies: Amartya Sen states that 'our culture must have influence on everything else we do'¹⁰⁰ while a definition by UNESCO describes culture 'as the set of distinctive spiritual, material, intellectual and emotional features of a society or a social group social group' ¹⁰¹ .Thereby the 'designation of cultural diversity' is understood as 'the common heritage of humanity.'¹⁰² However, cases under the SPS Agreement do not reveal the full extent of violations of countries' sensitive relationship with food. When Japan was accused for having failed to provide an 'adequate risk assessment' for each of the agricultural imports that were potentially able to spread the 'blight moths disease' WTO panellists did not consider features of Japan's unique food cultivation: due to strictly confined cultivable land and favourable watering conditions fruits are precious goods, often presented as gifts and consumed with thoughtfulness. The panel required that Japan brought its measures in conformity with the obligations under the SPS.¹⁰³ Likewise the commercialisation of GMOs has offended cultural, social and sentiments of European countries: Polish commentators describe the cultivation of GMOs as contrary to their religious belief and humanitarian values, whereas Greece unsuccessfully tried to invoke social-economic concerns in a GM dispute¹⁰⁴ .

On the background of genuine health and environmental concerns growing political frictions between the EU and the US may be ascertained in a different light. In a draft paper from 2011 Any Bradford from the Chicago School of Law expresses her resentment with the regulatory force of Europe: though 'on the world stage, the European Union is thought to be waning into irrelevance due to its inability to speak with one voice'¹⁰⁵ [...] EU regulations have a tangible impact on the everyday lives of citizens around the world'¹⁰⁶ dictating cosmetics, software, GMOs, chemicals and other products. Referring to the phenomenon as the 'Brussels effect' she complaints the resulting unilateral as opposed to political globalisation through the migration of laws which unhinges stated economic principles. A 'race to the bottom' which normally attracts business and corporations through relaxed regulations¹⁰⁷ recently experiences the opposite effect through incentives for companies to apply stricter standards to their production.¹⁰⁸ Bradford does not believe in a 'conscious choice to engage in regulatory imperialism' by the EU. The combined de facto and de jure effect is neither the result of cooperation nor coercion; it is rather produced through the 'go-it-alone power' by a dominant regulator.'¹⁰⁹ Bradford calls her paper 'descriptive' without wishing to decide whether the regulating powers of the EU are socially desirable or not; she is mainly interested to provide 'an account for why and how trade liberalisation can lead to stringent standards, why this follows a process of unilateral regulatory globalisation and why these standards are predominantly set by the EU.¹¹⁰ While her discourse mentions cultural differences in the understanding of 'risk' and 'precaution' between the US and EU, the intended descriptive approach turns into evaluating statements: in the attempt to identify the EU's internal and external motivations for its regulatory conduct she quotes 'economic interests [and] driven primarily by its concern for competitiveness' and an 'accidental byproduct of its internal motivations'¹¹¹ Remaining in the economic vocabulary of 'advantages', 'market conditions' and 'power plays' substantial problems such as climate change and pollution of various types which unilateral advances seek to address must take a back seat; the author misses the dimension of genuine health and environmental concerns not only of European citizens the latter eventually having contributed to the shaping of European legislation.¹¹²

Bradford's reluctance to attribute any altruistic or benevolent motivation behind the EU's cautious and regulatory position is also reflected in Falkner's article about Europe's 'leadership in international biotechnology regulation.'¹¹³ As Bradford he questions a deep-rooted normative orientation conferring 'green normative power' but rather seeks to explain the EU's position as 'a result of often protracted domestic battles over the future of biotechnology and the right balance between competing normative principles'¹¹⁴ The detection that 'a policy of regulatory export follows a domestic political -economical logic' ¹¹⁵ may defeat any claim that 'power serves global interests and universal values', the more as 'EU negotiators were keen to ensure that international treaty obligations would not go beyond domestic regulations and would not extend to the less controversial applications of genetic engineering in the medical realm'. For Falkner 'EU biosafety leadership was [thus] closely circumscribed by the calculus of economic interest.'¹¹⁶

Any remembrance of the strong environmentalist commitment of the US in the 1960s as illustrated by Keleman and Vogel¹¹⁷ fades away when reading Wirth's comment on 'the EU's new impact on US environmental regulation'. While regulating chemicals in the sense of 'negative harmonisation' the EU's conduct 'has serious long term implications for the process of crafting US public policy'. ¹¹⁸ While 'advocates for more vigorous regulatory interventions in areas such as the environment, consumer protection, and public health might see this development as helpful', EU legislative dynamics forces US administrative into compliance with potentially troubling long-range implications which as a model are 'wholly inadequate to address twenty-first century realities.'¹¹⁹ In the course of Wirth's analysis the reader learns that the disputed European chemical regulation has been drafted under the influence by the US government which 'undertook a concerted effort to block or weaken the [EU] proposal after the release of the EU's white paper in 2001.¹²⁰ This might explain the dissatisfactory result of REACH in the eyes of environmentalist who consider the directive to be the result of 'a highly controversial lobbying debate.'¹²¹

VI.The nature of world trade law and lawyers' responsibility in shaping relations

To complete the current puzzle of food safety regulations a final view on the broader involvement of the legal profession is essential. In a conference paper of the Global Studies Research Program (GSRP)' a research group of American lawyers identifies some characteristics of a new type of global economic law.¹²² Accordingly, lawyers participate in the construction of transnational and supranational regimes and these actions affect the power and legitimacy of national states and their legal fields.'¹²³ 'The 'global' and the 'national' are interpenetrated and interrelated'; a newly created 'global factory' is meant to contribute to the 'emergence of a new international division of labour.'¹²⁴ The time of writing is the era of Thatcher and Reagan administrations and of the 'Washington consensus' ¹²⁵ that 'under the aegis of the International Monetary Fund (IMF) and the International Bank for Reconstruction and Development (IBRD or World Bank) spread a neo-liberal vision 'throughout the developing world' and [which] affects continental and Eastern Europe, the former Soviet Union and also China.'¹²⁶ The vision comprehends creditable aims: the promotion of democratisation, advocacy for the disadvantaged and the protection of environmental and social interests.¹²⁷ For the realisation of re-structured global production an 'American mode of production of law'¹²⁸ has intruded into legal fields in Europe. The question arises as to the legitimacy of an autonomous legal field in a certain type of society where no group occupies a permanently dominant position, so called 'liberal societies'. These are 'made up of differentiated and stratified social groups and classes; as 'these divisions and hierarchical orderings cannot be fully justified by any shared social vision or widely accepted ideology [...], the idea of a neutral sphere of law provides legitimating for what would otherwise be seen as the unjustifiable exercise of power by dominant groups in society.'¹²⁹ Interestingly, the paper refers to the work by Max Weber as pioneer in analysing the 'political economy of legal change'¹³⁰ . The fundamental differences in interpreting Weber's methodological antipositivism across cultures, for instance between neoliberal legal- economic thinking and social democratic understanding may form the sweeping subject of future socio-legal scholarship.

VII. Emergency exits from Satyricon¹³¹

Consider you invite guests for dinner. They might be close friends, they might be remote neighbours; in any event you want them to keep you in good memories and will strive for dishing up the very best food you can find. This custom can be traced in all cultures; in our open society we enjoy every opportunity to celebrate these values.¹³² Where then do we draw the line when it comes to food quality and safety in exporting food and negotiating trade deals? Whom do we want to eat genetically modified food when most of Europeans do not want to consume it and US citizens do not want, neither¹³³ ; whom do we expect to atomise pesticides when countries as soon as they reach certain prosperity levels aim to become pesticide-free¹³⁴ and who finally will eat hormone-treated meat from the US, China and Europe which up-and foremost serves the growth of the pharmaceutical industry?

This year's World Summit's slogan 'Re-thinking growth'¹³⁵ sought to provide a starting point. It confirms the findings of a discussion paper published by Oxfam according to which mankind has overstepped planetary boundaries in 3 of 9 dimensions of 'environmental ceilings'. ¹³⁶ Based on human rights advocacy the paper presents a framework which links social with planetary boundaries and pledges for redistributive practices in four areas of insights.¹³⁷ Human rights may also become the crucial guide for 'world trade law after neoliberalism' according to Andrew Lang. ¹³⁸ After a historically explainable post war division between economic liberalism and human rights advocacy the author suggests that 'the critical and reformative energies of international lawyers should be focused on opening imaginative space for the politics of collective purpose within international legal regimes'.¹³⁹ An alternative vision for world trade law had to avoid intrusion into 'the substantive regulatory prerogatives of States' by relying on principles of deference and proceduralization. These recent jurisdictional tools emerged up and foremost in the abovementioned food disputes¹⁴⁰ and entail the revision of the standard of review which however, is in its infancy and 'must be informed and guided by a genuine sense of collective public purpose [...] accompanied by debate and discussion about the substantive norms, values and goals which the international trade regime ought to equip itself.'¹⁴¹ According to Lang the shaping of a new global economic order in the 1980s and 1990s has been pursued 'in the absence of a legitimate and legitimating purpose, and without clear sense of responsibility for the full range of outcomes produced 'and can only be followed by the 're-moralisation' of international trade law.

Not only on the European level the legislation and administration operates in a range of ways to promote and advance sustainable practices which even can 'double food production in 10 years'.¹⁴² Worth mentioning is the work of the Economic and Social Committee and the Committee of the Region which in past years have successfully operated in the shadow of the European 'canonical institutions'.¹⁴³ Its priorities aim for transparent and coordinated policies and development from municipalities to departments and monitors employment, environmental and social protection as coherent and interdependent societal goods. Intergovernmental framework programmes such as the European Cooperation in Science and Technology, EU COST¹⁴⁴ provide information and facilitates cooperation in and across nine key domains. In the domain of food and agriculture environmental aspects of agriculture are embraced and foster the understanding of human nutrition and the food chain, biological function of organism and agriculture as human activity. The support of fundamental science of biology, animals, veterinary studies, soil and genetics and breeding and strives towards a 'more holistic approach for instance in the form of new farming systems for producing quality systems'.¹⁴⁵

VIII. Conclusion

Trade disputes around food reflect essential elements of current economic crisis: by no coincidence actors are those parties who inform headlines of various seats of fire: Europe, China, the US and Russia. While developing countries heavily depend on export opportunities and enhancement of their agricultural sectors, several facts are most disquieting: investment in agribusiness has driven a large part of our global economy by not only boosting large scale yields of products of disputable quality but also by bundling a multitude of further economic activities around simple natural goods such as poultry, corn, tomatoes and apples. Large parts of immense developments in transport, engineering, intellectual property and chemicals rank around natural resources which partially can be organised and managed on smaller but more sustainable scales, for instance in people's backyard.¹⁴⁶ Subsequently potatoes may become political and eating an apple may turn into a risky business.¹⁴⁷ The vicarious cycle of unemployment and poverty tends to naturally push people back into habitual traditions and customs not to mention preferences for organic food of those who can afford it: a return to investment in agribusiness as usual inevitably bears substantial risks aggravated by increasing effects of climate change. Though deepened understanding of coherency and interdependency of different economic branches including food supply and their anchorage in international economic law has the potential to resiliently and circumspectly channel current stagnation and recession; it may also instigate to rethink values and priority settings in economic planning. Last but not least it may include empathy¹⁴⁸ and environmental considerations as unavoidable parameters into legal-economic foundations of a new and balanced period of world-wide prosperity. The purposive force of the law could thereby play a decisive role.