An Enabling Regulatory Environment for Sustainable Investment: The Example of Trade Law

There is broad international agreement that investment flows to the agricultural sector in developing countries need to be increased. But there is also agreement that such investments need to be sustainable. For being sustainable, they must not only be beneficial to the public economy, but also to rural households and to the environment in the short and the long run. Whether sustainable investments take place, not least depends on the legal framework within which these investments are situated. This is true for the domestic legal frameworks of both the home country and of the host country of the investment. But also the international legal frameworks in which home and host states are embedded set either positive or negative incentives for investments to be sustainable. The paper presents an overview on regulatory frameworks which come to focus in this regard. It then elaborates on international agricultural trade regulation, by assuming that sustainable investments in agriculture presume a ‘sustainable trade regime’. By doing so, the paper presents parts of the debate about a sustainable agricultural trade regime, as it has been resumed and further developed by the author in recent years. Key words. Agricultural sector, sustainable investment, regulatory environment, sustainable trade regime.

Sustainable development in international law making and trade: International food governance and trade in agriculture

This timely book provides an accessible insight into how the concept of sustainable development can be made operational through its translation into legal terms. Understood as a multidimensional legal principle, sustainable development facilitates coherent international law making. Using this notion as an analytical lens on the WTO Agreement on Agriculture, the book considers the unresolved question of what a sustainable and coherent agricultural trade agreement could look like.

Human rights and international trade

Economic globalization and respect for human rights are both highly topical issues. In theory, more trade should increase economic welfare and protection of human rights should ensure individual dignity. Both fields of law protect certain freedoms: economic development should lead to higher human rights standards, and UN embargoes are used to secure compliance with human rights agreements. However the interaction between trade liberalisation and human rights protection is complex, and recently, tension has arisen between these two areas. Do WTO obligations covering intellectual property prevent governments from implementing their human rights obligations, including rights to food or health? Is it fair to accord the benefits of trade subject to a clean human rights record? This book first examines the theoretical framework of the interaction between the disciplines of international trade law and human rights. It builds upon the well-known debate between Professor Ernst-Ulrich Petersmann, who construes trade obligations as human rights, and Professor Philip Alston, who warns of a merger and acquisition of human rights by trade law. From this starting point, further chapters explore the differing legal matrices of the two fields and examine how cooperation between them might be improved, both in international law-making and institutions,in dispute settlement. The interaction between trade and human rights is then explored through seven case studies:freedom of expression and competition law; IP protection and health; agricultural trade and the right to food; trade restrictions on conflict WHO convention on tobacco control; and, finally, human rights conditionalities in preferential trade schemes.

The WTO and Food Security: What’s Wrong with the Rules?

The WTO Agreement on Agriculture (AoA) is the predominant multilateral legal framework governing agricultural trade. The objective of the AoA is to liberalise trade in agriculture through reductions in tariffs, domestic support and export subsidies. The AoA has not, however, ‘levelled the playing field’ and has not resulted in the equitable distribution of food, particularly for the poorer developing countries. On the other hand, support for small farmers does not ensure food security for the poor. While food security has no simple solutions such as “free trade is good for you”, reform proposals for trade rules which only address agricultural policy instruments fail to account for consumer and other interests: neither tariff reductions and subsidy disciplines, nor safeguards and other measures of producer protection can automatically increase food security. Rather, what is needed is the full and proper implementation of a number of commitments which the international community has already entered into in various human rights treaties, but which even the envisaged results of the now failed Doha Round negotiations could not ensure without revisiting relevant multilateral trade and investment rules.

The story of Community preference for food security

"Préférence communautaire" is an in-built notion of the CAP since its inception with the Treaty of Rome (1957). Its’ simple objective laid down at the Stresa Conference in 1958 is to prefer community produce over imports wherever possible, while at the same time promoting agricultural exports and FDI (“vocation exportatrice de l’Europe”). Does this contrast or correlate with the notion of “food sovereignty” which originated in 1996 as a notion of small farmer self-sufficiency (Via Campesina), and which now has found its way into the official EC discourse? Recent CAP reforms indeed seem to continue banking on border protection and on the occasional export subsidy. Nonetheless, coming together with claims to mitigate climate change, “food sovereignty” à la CAP fails to acknowledge efficiency losses at home and negative spillover effects on the right to food of food exporting developing countries. This chapter asks whether new non-tariff and domestic support measures are just new wine in the old cask of fortress Europe, together with the FDI promotion instruments of the FED and others. Might the increasing dynamics and new challenges of agricultural trade and investment lead to lower market and production shares for European farms? It concludes that in the medium term the WTO Green Box has the only legal and effective tools to promote EU agriculture and food.

Potential and limitations of organic and fair trade cotton for improving livelihoods of smallholders: evidence from Central Asia

Cotton is a leading agricultural non-food commodity associated with soil degradation, water pollution and pesticide poisoning due to high levels of agrochemical inputs. Organic farming is often promoted as a means of addressing the economic, environmental and health risks of conventional cotton production, and it is slowly gaining ground in the global cotton market. Organic and fair trade cotton are widely seen as opportunities for smallholder farmers to improve their livelihoods thanks to higher returns, lower input costs and fewer risks. Despite an increasing number of studies comparing the profitability of organic and non-organic farming systems in developing and industrialized countries, little has been published on organic farming in Central Asia. The aim of this article is to describe the economic performance and perceived social and environmental impacts of organic cotton in southern Kyrgyzstan, drawing on a comparative field study conducted by the author in 2009. In addition to economic and environmental aspects, the study investigated farmers’ motivations toward and assessment of conversion to organic farming. Cotton yields on organic farms were found to be 10% lower, while input costs per unit were 42% lower; as a result, organic farmers’ cotton revenues were 20% higher. Due to lower input costs as well as organic and fair trade price premiums, the average gross margin from organic cotton was 27% higher. In addition to direct economic benefits, organic farmers enjoy other benefits, such as easy access to credit on favorable terms, provision of uncontaminated cottonseed cooking oil and cottonseed cake as animal feed, and marketing support as well as extension and training services provided by newly established organic service providers. The majority of organic farmers perceive improved soil quality, improved health conditions, and positively assess their initial decision to convert to organic farming. The major disadvantage of organic farming is the high manual labor input required. In the study area, where manual farm work is mainly women's work and male labor migration is widespread, women are most affected by this negative aspect of organic farming. Altogether, the results suggest that, despite the inconvenience of a higher workload, the advantages of organic farming outweigh its disadvantages and that conversion to organic farming improves the livelihoods of small-scale farmers.

Trade Law and Responsible Investment

There is broad international agreement that investment flows to the agricultural sector in developing countries need to be increased. In addition, there is broad agreement that such investments need to be responsible, and that they will only be responsible and beneficial to poor people if they contribute to the prudent development of the agricultural sector. Less studied is the link between responsible investment and trade. In this brief, the assumption is made that responsible investment flows presume a responsible trade regime, i.e. a trade regime that contributes to the prudent development of the agricultural sector in developing countries. Such a prudent, sustainable trade regime will promote investments in the agricultural sector that are responsible to the people involved and to the environment. It builds the “channel” through which investments flow. By contrast, an unsustainable trade framework will create an investment climate that promotes problematic investment practices.

Cloning of farm animals: impact on animal health and welfare and implications in trade

The commercial use of animal cloning for breeding food producing animals has been limited so far by biological and technical constraints such as adverse effects on the health and welfare of animals, especially high perinatal and postnatal disease and mortality of clones. However, the improvement of the technique may overcome those problems in future and contribute to the spread of cloning in agricultural production, which raises concern not only on health and welfare aspects but also on food safety and ethics. This may cause conflict in international trade. The present article reviews these topics on the basis of up-to-date scientific opinions.

Genetic engineering and the world trade system

While the WTO agreements do not regulate the use of biotechnology per se, their rules can have a profound impact on the use of the technology for both commercial and non-commercial purposes. This book seeks to identify the challenges to international trade regulation that arise from biotechnology. The contributions examine whether existing international obligations of WTO Members are appropriate to deal with the issues arising for the use of biotechnology and whether there is a need for new international legal instruments, including a potential WTO Agreement on Biotechnology. They combine various perspectives on and topics relating to genetic engineering and trade, including human rights and gender; intellectual property rights; traditional knowledge and access and benefit sharing; food security, trade and agricultural production and food safety; and medical research, cloning and international trade.

Ecosystem service trade-offs and stakeholder claims - a meso-scale study from a Madagascar biodiversity hotspot

The north-eastern escarpment of Madagascar has been labelled a global biodiversity hotspot due to its extremely high rates of endemic species which are heavily threatened by accelerated deforestation rates and landscape change. The traditional practice of shifting cultivation or "tavy" used by the majority of land users in this area to produce subsistence rice is commonly blamed for these threats. A wide range of stakeholders ranging from conservation to development agencies, and from the private to the public sector has therefore been involved in trying to find solutions to protect the remaining forest fragments and to increase agricultural production. Consequently, provisioning, regulating and socio-cultural services of this forest-mosaic landscape are fundamentally altered leading to trade-offs between them and consequently new winners and losers amongst the stakeholders at different scales. However, despite a growing amount of evidence from case studies analysing local changes, the regional dynamics of the landscape and their contribution to such trade-offs remain poorely understood. This study therefore aims at using generalised landscape units as a base for the assessment of multi-level stakeholder claims on ecosystem services to inform negotiation, planning and decision making at a meso-scale. The presented study applies a mixed-method approach combining remote sensing, GIS and socio-economic methods to reveal current landscape dynamics, their change over time and the corresponding ecosystem service trade-offs induced by diverse stakeholder claims on the regional level. In a first step a new regional land cover classification for three points in time (1995, 2005 and 2011) was conducted including agricultural classes characteristic for shifting cultivation systems. Secondly, a novel GIS approach, termed “landscape mosaics approach” originally developed to assess dynamics of shifting cultivation landscapes in Laos was applied. Through this approach generalised landscape mosaics were generated allowing for a better understanding of changes in land use intensities instead of land cover. As a next step we will try to use these landscape units as proxies to map provisioning and regulating ecosystem services throughout the region. Through the overlay with other regional background data such as accessibility and population density and information from a region-wide stakeholder analysis, multiscale trade-offs between different services will be highlighted. The trade-offs observed on the regional scale will then be validated through a socio-economic ground-truthing within selected sites at the local scale. We propose that such meso-scale knowledge is required by all stakeholders involved in decision making towards sustainable development of north-eastern Madagascar.

Carbon sequestration in community forests: trade-offs, multiple outcomes and institutional diversity in the Bolivian Amazon

Carbon sequestration in community forests presents a major challenge for the Reducing Emissions from Deforestation and Forest Degradation (REDD+) programme. This article uses a comparative analysis of the agricultural and forestry practices of indigenous peoples and settlers in the Bolivian Amazon to show how community-level institutions regulate the trade-offs between community livelihoods, forest species diversity, and carbon sequestration. The authors argue that REDD+ implementation in such areas runs the risk of: 1) reinforcing economic inequalities based on previous and potential land use impacts on ecosystems (baseline), depending on the socio-cultural groups targeted; 2) increasing pressure on land used for food production, possibly reducing food security and redirecting labour towards scarce off-farm income opportunities; 3) increasing dependence on external funding and carbon market fluctuations instead of local production strategies; and 4) further incentivising the privatization and commodification of land to avoid transaction costs associated with collective property rights. The article also advises against taking a strictly economic, market-based approach to carbon sequestration, arguing that such an approach could endanger fragile socio-ecological systems. REDD+ schemes should directly support existing efforts towards forest sustainability rather than simply compensating local land users for avoiding deforestation and forest degradation

Market Access in Switzerland and in the European Union for Agricultural Products from Least Developed Countries

The introduction of the so-called “duty free quota free” treatment (DFQF) for all products from least developed countries (LDCs), in particular by the European Communities (EC) and by Switzerland, raised expectations of increased agricultural exports for these 49 countries. Despite the high tariff differential LDCs now enjoy over their competitors, especially for agricultural products and particularly in Switzerland, the results until 2007 are dismal: with the exception of sugar exports to the EC, LDCs have not been able to substantially increase their agricultural exports to Europe. This study analyses the result-ing tariff situation and the remaining non-tariff barriers. In many instances it is not cus-toms duties but the sanitary and phytosanitary barriers which turn out to be the single most important hurdle preventing trade. For instance, almost no LDC-based company can supply animal-based products. Similarly, certain private standards set by proces-sors and retailers prevent imports, particularly from LDCs, far more effectively than tar-iffs. Several gateways into this “European cordon sanitaire” are proposed. Only if offered in the context of a package of various carefully coordinated measures, DFQF could yet have a real impact on trade from LDCs. As it stands, this treatment constitutes only a nice-to-have but still largely ineffective instrument of trade development.

The Jurisprudence of the World Trade Organization 2014

In 2014, the Dispute Settlement Body (DSB) of the World Trade Organization (WTO) adopted seven panel reports and six Appellate Body rulings. Two of the cases relate to anti-dumping measures. Three cases, comprising five complaints, are of particular interest and these are summarized and discussed below. China – Rare Earths further refines the relationship between protocols of accession and the general provisions of WTO agreements, in particular the exceptions of Article XX GATT. Recourse to that provision is no longer excluded but depends on a careful case-by-case analysis. While China failed to comply with the conditions for export restrictions, the case reiterates the problem of insufficiently developed disciplines on export restrictions on strategic minerals and other commodities in WTO law. EC – Seals Products is a landmark case for two reasons. Firstly, it limits the application of the Agreement on Technical Barriers to Trade (TBT Agreement) resulting henceforth in a narrow reading of technical regulations. Normative rules prescribing conditions for importation are to be dealt with under the rules of the General Agreement on Tariffs and Trade (GATT) instead. Secondly, the ruling permits recourse to public morals in justifying import restrictions essentially on the basis of process and production methods (PPMs). Meanwhile, the more detailed implications for extraterritorial application of such rules and for the concept of PPMs remain open as these key issues were not raised by the parties to the case. Peru – Agricultural Products adds to the interpretation of the Agreement on Agriculture (AoA), but most importantly, it confirms the existing segregation of WTO law and the law of free trade agreements. The case is of particular importance for Switzerland in its relations with the European Union (EU). The case raises, but does not fully answer, the question whether in a bilateral agreement, Switzerland or the EU can, as a matter of WTO law, lawfully waive their right of lodging complaints against each other under WTO law within the scope of their bilateral agreement, for example the Agreement on Agriculture where such a clause exists.

Linking livelihood strategies with a regional level landscape mosaic to explore trade-offs between forest conservation and human wellbeing in a Madagascar biodiversity hotspot

The north-eastern escarpment of Madagascar contains the island’s last remaining large-scale humid forest massifs surrounded by diverse small-scale agricultural mosaics. There is high deforestation mainly caused by shifting cultivation practiced by local land users to produce upland rice for subsistence. Today, large protected areas restrict land users’ access to forests to collect wood and other forest products. Moreover, they are no more able to expand their cultivated land, which leads to shorter shifting cultivation cycles and decreasing plot sizes for irrigated rice and cash crop cultivation. Cash crop production of clove and vanilla is exposed to risks such as extreme inter-annual price fluctuations, pests and cyclones. In the absence of work opportunities, agricultural extension services and micro-finance schemes people are stuck in a poverty trap. New development strategies are needed to mitigate the trade-offs between forest conservation and human well-being. As landscape composition and livelihood strategies vary across the region, these strategies need to be spatially differentiated to avoid implementing generic solutions, which do not fit the local context. However, up to date, little is known about the spatial patterns of shifting cultivation and other land use systems at the regional level. This is mainly due to the high spatial and temporal dynamics inherent to shifting cultivation, which makes it difficult to monitor the dynamics of this land use system with remote sensing methods. Furthermore, knowledge about land users’ livelihood strategies and the risks and opportunities they face stems from very few local case studies. To overcome this challenge, firstly, we used remote sensing data and a landscape mosaic approach to delineate the main landscape types at the regional level. Secondly, we developed a land user typology based on socio-ecological data from household surveys in 45 villages spread throughout the region. Combining the land user typology with the landscape mosaic map allowed us to reveal spatial patterns of the interaction between landscapes and people and to better understand the trade-offs between forest conservation and local wellbeing. While shifting cultivation systems are being transformed into more intensive permanent agricultural systems in many countries around the globe, Madagascar seems to be an exception to this trend. Linking land cover information to human-environmental interactions over large areas is crucial to designing policies and to inform decision making for a more sustainable development of this resource-rich but poverty-prone context.