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RENEGOTIATION OF THE WTO AGREEMENT ON AGRICULTURE: ACCOMMODATING THE NEW BIG ISSUES

Published online by Cambridge University Press:  31 October 2013

Michael Cardwell  and
Fiona Smith
Michael Cardwell
Affiliation:
Professor of Agricultural Law, School of Law, University of Leeds, [email protected]
Fiona Smith
Affiliation:
Senior Lecturer, Faculty of Laws, UCL, [email protected].
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Abstract

The WTO Agreement on Agriculture was designed to maximize trade flows at a time of surplus agricultural production. It required Members to open markets and to reduce domestic and export subsidies. Proposals for reform in the Doha Round negotiations largely adopt the same pattern. Yet, as surplus is replaced by shortage, Members are increasingly concerned about food security and the impact of agriculture on climate change. And contemporary agricultural policies crystallize around ‘sustainable intensification’, where domestic production is promoted, but not at the expense of future production. This article suggests that, although both the Agreement on Agriculture and the Doha Round proposals do provide some scope for measures to address this new policy paradigm, there are instances where they may work actively against it.

Keywords

climate changeDoha Round negotiationsdomestic supportexport competitionexport prohibitions and restrictionsfood securitymarket accesssustainable intensificationWTO Agreement on Agriculture
Type
Articles
Information
International & Comparative Law Quarterly , Volume 62 , Issue 4 , October 2013 , pp. 865 - 898
Copyright
Copyright © British Institute of International and Comparative Law 2013 

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References

1 Preamble (2).

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4 Agreement on Agriculture, Preamble (6).

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14 European Commission, IP/07/1977, ‘Agriculture: European Union Suspends Import Duties on Most Cereals’, Brussels, 20 December 2007; and, for the implementing legislation, see Council Regulation (EC) 1/2008 temporarily suspending customs duties on imports of certain cereals for the 2007/2008 marketing year [2008] OJ L1/1.

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19 16 USC Section 3831(d). See also generally eg Orden, D, ‘WTO Disciplines and Economic Dimensions of the 2008 US Farm Bill’ in Karapinar, B and Häberli, C (eds), Food Crises and the WTO (Cambridge University Press 2010) 220CrossRefGoogle Scholar; and Grossman, MR ‘Good Agricultural Practice in the United States: Conservation and Climate Change’ (2011) 13 Environmental Law Review 296CrossRefGoogle Scholar.

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25 For an illuminating discussion of the role played by increased biofuel demand during the 2007–08 food crisis, see Headey and Fan (n 11) 28–31; and, more recently, see eg J Graziano da Silva (FAO Director General), ‘The US Must Take Biofuel Action to Prevent a Food Crisis’, Financial Times, 9 August 2012. For an alternative view, see eg USDA News Release 254.12, Agriculture Secretary Vilsack Announces Support for Producers to Grow Renewable Feedstocks for Advanced Biofuels Washington, DC, 27 July 2012; and fuel security (delivered in part through biofuels) would seem to remain a central plank of United States policy: President Barack Obama, Transcript: Obama's Victory Speech (7 November 2012) <http://blogs.wsj.com/washwire/2012/11/07/transcript-obamas-victory-speech/> accessed 7 May 2013.

26 European Commission, ‘Proposal for a Directive of the European Parliament and of the Council amending Directive 98/70/EC relating to the quality of petrol and diesel fuels and amending Directive 2009/28/EC on the promotion of the use of energy from renewable sources’ COM (2012) 595Google Scholar.

27 European Commission, IP/12/1112, ‘New Commission Proposal to Minimise the Climate Impacts of Biofuel Production’, Brussels, 17 October 2012.

28 European Commission, ‘Innovating for Sustainable Growth: A Bioeconomy for Europe’ COM (2012) 60, 5Google Scholar.

29 See eg Elbehri, A, ‘Biopharming and the Food System: Examining the Potential Benefits and Risks’ (2005) 8 AgBioForum 18Google Scholar; and Ruhl, JB, ‘Agriculture and Ecosystem Services: Strategies for State and Local Governments’ (2008) 17 NYU Environmental Law Journal 424Google Scholar.

30 FAO, Strategic Framework 2010–2019 (Conference, Rome 18–23 November 2009) <ftp://ftp.fao.org/docrep/fao/meeting/017/k5864e01.pdf> accessed 7 May 2013. See now also FAO, Reviewed Strategic Framework (Conference, Rome 15–22 June 2013) <http://www.fao.org/docrep/meeting/027/mg015e.pdf> accessed 23 August 2013.

31 Foresight, The Future of Food and Farming: Final Project Report (Foresight Report) (Government Office for Science 2011) 30. See also eg The Royal Society, Reaping the Benefits: Science and the Sustainable Intensification of Global Agriculture (The Royal Society 2009)Google Scholar.

32 COM (2012) 60, 4.

33 USDA Transcript: Release 458.11 Agriculture Secretary Vilsack on Priorities for the 2012 Farm Bill, Ankeny, Iowa, 24 October 2011.

34 ibid.

35 See eg Pretty, J, ‘The Sustainable Intensification of Agriculture’ (1997) 21 Natural Resources Forum 247CrossRefGoogle Scholar.

36 World Economic Forum, Putting the New Vision for Agriculture into Action: A Transformation is Happening (World Economic Forum 2012) 6Google Scholar. It may be observed that, under the New Vision, a continuing role for small scale farms is nonetheless envisaged; and see also eg House of Commons Environmental Audit Committee, Eleventh Report of Session 2010–12: Sustainable Food, HC 879Google Scholar, paras 63–67.

37 Foresight Report (n 31) 35.

38 Garnett, T and Godfray, CSustainable Intensification in Agriculture: Navigating a Course Through Competing Food System Priorities (Food Climate Research Network and the Oxford Martin Programme on the Future of Food 2012) 14Google Scholar (although accepting that, in practice, some increases in production may be required, for example in sub-Saharan Africa).

39 ibid, 8.

40 For full discussion of the Agreement on Agriculture, see eg Desta, M, The Law of International Trade in Agricultural Products: From GATT 1947 to the WTO Agreement on Agriculture (Kluwer 2002)Google Scholar; and McMahon, JA, The WTO Agreement on Agriculture: A Commentary (Oxford University Press 2006)CrossRefGoogle Scholar.

41 The Harmonized System of the World Customs Organization was last updated in 2012. For classification under the Harmonized System in the context of the WTO, see WTO, Current Situation of Schedules of WTO Members G/MA/W/23/Rev.9.

42 Definition in Oxford English Dictionary (http://www.oed.com/).

43 By contrast, it may be noted that, for the purposes of the FAO, ‘agriculture’ embraces both fisheries and forestry: see generally Young, MA, ‘Fragmentation or Interaction: The WTO, Fisheries Subsidies, and International Law’ (2009) 8 World Trade Review 477CrossRefGoogle ScholarPubMed.

44 Agreement on Agriculture, Annex 1, Harmonized System ch 12.

45 ibid, Annex 1 (respectively Harmonized System chs 16, 18 and 19).

46 See eg EEC–Subsidies on Export of Pasta Products SCM/43, 19 May 1983 (unadopted).

47 Canada–Measures Affecting the Importation of Milk and the Exportation of Dairy Products WT/DS103/R and WT/DS/113/R, 17 May 1999, para 7.18.

48 WTO, Proposals by India in the areas of: (i) Food Security, (ii) Market Access, (iii) Domestic Support, and (iv) Export Competition G/NG/AG/W/102, 15 January 2001, 5.

49 WTO, Revised Draft Modalities for Agriculture, TN/AG/W/4/Rev.4, 6 December 2008. In the context of WTO negotiations, ‘modalities’ are employed to provide outlines for final commitments (including formulas or approaches for tariff reductions): see eg WTO, Glossary. <http://www.wto.org/english/thewto_e/glossary_e/glossary_e.htm> accessed 6 May 2013.

50 See eg Howse, R and Eliason, AL, ‘Domestic and International Strategies to Address Climate Change: An Overview of the WTO Legal Issues’ in Cottier, T, Nartova, O and Bigdeli, S (eds), International Trade Regulation and the Mitigation of Climate Change (Cambridge University Press 2009) 48CrossRefGoogle Scholar; and Switzer, S and McMahon, JA, ‘EU Biofuels Policy-Raising the Question of WTO Compatibility’ (2011) 60 ICLQ 713CrossRefGoogle Scholar.

51 See eg International Food and Agricultural Trade Policy Council (IPC) and Renewable Energy and International Law (REIL), WTO Disciplines and Biofuels: Opportunities and Constraints in the Creation of a Global Marketplace (IPC and REIL 2006) 10Google Scholar; Swinbank, A, ‘EU Policies on Bioenergy and Their Potential Clash with the WTO’ (2009) 60 Journal of Agricultural Economics 485CrossRefGoogle Scholar; and Switzer and McMahon (n 50).

52 ‘Live trees’ under Harmonized System Code Chapter 6 are restricted to those commonly supplied by nursery gardeners or florists. See also, in the context of European Community law, Joined Cases C-164/97 and C-165/97 Parliament v Council [1999] ECR I-1139.

53 Short-rotation coppice would provide a good illustration (for the environmental credentials of which see eg House of Commons Environmental Audit Committee, First Report of Session 2007–08: Are Biofuels Sustainable?, HC 76-I, para 31).

54 By way of illustration, in the EU most domestic support is now comprised within the Single Farm Payment, which is understood to be exempt from domestic support reduction commitments on the basis that, not being dependent upon any particular form of production, it qualifies for exemption from reduction commitments as ‘decoupled income support’: Agreement on Agriculture, Annex 2, para 6; and, since a key feature of the Single Farm Payment is that farmers are free to follow market signals in terms of crop selection, there would seem to be nothing to prevent a farmer choosing to grow oilseed rape which may subsequently be used in biofuel production. For the EU legislation governing the Single Farm Payment see Council Regulation (EC) 73/2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers [2009] OJ L 30/16.

55 European Commission (n 26).

56 See eg IPC and REIL (n 51) 11.

57 GATT, Punta del Este Ministerial Declaration on the Uruguay Round of 20 September 1986, Part D, ‘Agriculture’, paras (i)–(iii), BISD 33S/19 (1987).

58 Agreement on Agriculture, art 4.2.

59 This ‘tariffication’ process was not without its problems: see eg Ingco, MD, ‘Tariffication in the Uruguay Round: How Much Liberalisation?’ (1996) 19(4) World Economy 425CrossRefGoogle Scholar.

60 When a Member makes these binding commitments, the tariff is referred to as a ‘bound tariff’. Minimum access was also guaranteed through tariff quotas in accordance with the mechanism in GATT, Modalities for the Establishment of Specific Binding Commitments under the Reform Programme, MTN.GNG/MA/W/24, 20 December 1993 (GATT Modalities), Annex 3B.

61 In the case of agricultural products, Part 1A of a Schedule covers tariffs, Part IB covers tariff quotas: <http://www.wto.org/english/tratop_e/schedules_e/goods_schedules_e.htm> accessed 7 May 2013.

62 European Communities–Customs Classification of Certain Computer Equipment (5 June 1998) WT/DS62/AB/R, WT/DS67/AB/R and WT/DS68/AB/R, para 84 (reiterated in the context of agricultural trade in Canada–Measures Affecting the Importation of Milk and the Exportation of Dairy Products (13 October 1999) WT/DS103/AB/R and WT/DS113/AB/R, para 131). By contrast, the GATT Modalities may not be the basis of dispute settlement proceedings, but may be employed for the purposes of interpretation: see eg European Communities–Export Subsidies on Sugar (15 October 2004) WT/DS265/R, para 7.350 (where the panel declares that: ‘[c]learly, the [GATT Modalities are] not a covered agreement and thus cannot provide for WTO rights and obligations to Members. Nonetheless, [they] could be relevant when interpreting the Agreement on Agriculture, including Members’ Schedules’).

63 GATT Modalities (n 60) Annex 3.

64 For example, Chilean surprise at the scope of tariffication in Chile–Price Band System and Safeguard Measures Relating to Certain Agricultural Products (23 September 2002) WT/DS207/AB/R.

65 Cuts are to be undertaken according to a ‘tiered formula’ and, for, developed countries at least, there should be a minimum average cut of 54 per cent (compared to a maximum average cut of 36 per cent for developing countries): WTO, Revised Draft Modalities for Agriculture, TN/AG/W/4/Rev.4, December 2008, paras 59–65.

66 WTO, Doha Ministerial Declaration, WT/MIN(01)/DEC/1, 20 November 2001, para 13.

67 WTO, Revised Draft Modalities for Agriculture, TN/AG/W/4/Rev.4, 6 December 2008, paras 129–131. There is also mitigation from tariff reductions for so-called ‘Sensitive Products’. There is no separate definition of this category, and Members can elect which products they regard as sensitive for the purposes of the tariff reduction commitments in the Doha proposals. This ‘Sensitive Product’ designation is open to all members to varying degrees, so it may be that members rely on these provisions to allow certain areas of agricultural production to thrive in line with ‘sustainable intensification’ ideals.

68 It may be observed that the current proposals on their face record that certain developing countries have reservations over these figures: ibid, para 129. A ‘tariff line’ means a product defined in a list of tariff rates: see eg WTO, Glossary (n 49).

69 WTO, Revised Draft Modalities for Agriculture, TN/AG/W/4/Rev.4, 6 December 2008, Annex F. See also McMahon, JA, The Negotiations for a New Agreement on Agriculture (Martinus Nijhoff 2011) 288–9CrossRefGoogle Scholar; and Smith, F, ‘Food Security and International Agricultural Trade Regulation: Old Problems, New Perspectives’ in McMahon, JA and Desta, M (eds), Research Handbook on the WTO Agriculture Agreement: New and Emerging Issues in International Agricultural Trade Law (Edward Elgar 2012) 45Google Scholar.

70 See generally eg Kaufmann, C and Heri, S, ‘Liberalizing Trade in Agriculture and Food Security: Mission Impossible?’ (2007) 40 VandJTransnatlL 1039Google Scholar.

71 See eg Anderson, K and Martin, W, ‘Agricultural Trade Reform and the Doha Development Agenda’ (2005) 28 The World Economy 1301CrossRefGoogle Scholar; and Laborde, D, Martin, W and van der Mensbrugghe, D, ‘Implications of the Doha Market Access Proposals for Developing Countries’ (2012) 11 World Trade Review 1CrossRefGoogle Scholar.

72 See eg Renwick, A et al. , ‘Policy Reform and Agricultural Land Abandonment in the EU’ (2013) 30 Land Use Policy 446CrossRefGoogle Scholar.

73 See generally eg McMahon (n 40) 63–88.

74 GATT Modalities (n 60) paras VIII, XV and XVI.

75 Agreement on Agriculture, art 6(4).

76 ibid, art 6(5). To qualify as direct payments under a production-limiting programme, it is necessary to show either: ‘(i) such payments are based on fixed area and yields; or (ii) such payments are made on 85 per cent or less of the base level of production; or (iii) livestock payments are made on a fixed number of head’: ibid, art 6(5)(a)(i)–(iii).

77 See respectively WT/DS267/R, 8 September 2004, para 7.412; and WT/DS267/AB/R, 3 March 2005, para 334.

78 The two basic criteria are that: ‘(a) the support in question shall be provided through a publicly-funded government programme (including government revenue foregone) not involving transfers from consumers; and (b) the support in question shall not have the effect of providing price support to producers’: Agreement on Agriculture, Annex 2, para 1(a) and (b).

79 ibid, Annex 2, paras 2–5.

80 ibid, Annex 2, paras 6–13 (the full list comprising: decoupled income support; government financial participation in income insurance and income safety-net programmes; payments for relief from natural disasters; structural adjustment assistance provided through producer retirement programmes; structural adjustment assistance provided through resource retirement programmes: structural adjustment assistance provided through investment aids; payments under environmental programmes; and payments under regional assistance programmes).

81 See eg the EU notification concerning domestic support commitments for the marketing year 2007–08: G/AG/N/EEC/68, 24 January 2011. Some doubt has been expressed as to whether the EU Single Farm Payment Scheme does in fact meet all the criteria for ‘Green Box’ exemption: see eg Swinbank, A and Tranter, R, ‘Decoupling EU Farm Support: Does the New Single Payment Scheme Fit within the Green Box?’ (2005) 6 The Estey Centre Journal of International Law and Trade Policy 47Google Scholar; and Cardwell, M and Rodgers, CP, ‘Reforming the WTO Legal Order for Agricultural Trade: Issues for European Rural Policy in the Doha Round’ (2006) 55 ICLQ 805CrossRefGoogle Scholar.

82 WTO, Revised Draft Modalities for Agriculture TN/AG/W/4/Rev.4, 6 December 2008, para 38.

83 ibid, para 35 (although this additional category would be subject to the same overall limit applicable to developed countries of 2.5 per cent of the average total value of agricultural production over a 1995–2000 base period).

84 See eg FAO Strategic Framework 2010–2019 (n 30) 8; and Foresight Report (n 31) 15.

85 It may be noted that early in the Doha Round the Cairns Group proposed elimination of the ‘Blue Box’: TN/AG/R/4, 18 October 2002.

86 See Agreement on Agriculture, Preamble (6): ‘[N]oting that commitments under the reform programme should be made in an equitable way among all Members, having regard to non-trade concerns, including food security and the need to protect the environment’; and, on ‘non-trade concerns’ generally, see eg Smith, F, ‘“Multifunctionality” and “Non-trade Concerns” in the Agriculture Negotiations’ (2000) 3 Journal of International Economic Law 707CrossRefGoogle Scholar; Vatn, A, ‘Multifunctional Agriculture: Some Consequences for International Trade’ (2002) 29 European Review of Agricultural Economics 309CrossRefGoogle Scholar; and Grossman, MR, ‘Multifunctionality and Non-trade Concerns’, in Cardwell, MN, Grossman, MR and Rodgers, CP (eds), Agriculture and International Trade: Law, Policy and the WTO (CAB International 2003) 85CrossRefGoogle Scholar.

87 Agreement on Agriculture, Annex 2, para 1.

88 See eg Sheng, Y et al. , A Turning Point in Agricultural Productivity: Consideration of the Causes – ABARES Research Report 11.4 (Canberra 2011)Google Scholar.

89 Foresight Report (n 31) 17. See also The Royal Society (n 31) passim.

90 WTO, Revised Draft Modalities for Agriculture TN/AG/W/4/Rev.4, 6 December 2008, Annex B.

91 See eg United Nations High Level Task Force on the Global Food Security Crisis, Updated Comprehensive Framework for Action: September 2010 (United Nations 2010) 21–4Google Scholar; and see further Ministerial Declaration, Action Plan on Food Price Volatility and Agriculture, Meeting of G20 Agriculture Ministers, Paris, 22 and 23 June 2011 <http://agriculture.gouv.fr/IMG/pdf/2011-06-23_-_Action_Plan_-_VFinale.pdf> para 13, accessed 7 May 2013.

92 See eg Goodwin, BK, Vandeveer, ML and Deal, J, ‘An Empirical Analysis of Acreage Effects of Participation in the Federal Crop Insurance Program’ (2004) 86 American Journal of Agricultural Economics 1058CrossRefGoogle Scholar.

93 For example, in the case of payments for relief from natural disaster, production loss must exceed 30 per cent of the average of production in the preceding three-year period or a three-year average based on the preceding five-year period, excluding the highest and the lowest entry: Agreement on Agriculture, Annex 2, para 8(a). In this respect, the current draft modalities provide flexibility for developing countries: WTO, Revised Draft Modalities for Agriculture, TN/AG/W/4/Rev.4, 6 December 2008, Annex B.

94 See eg OECD, Managing Risk in Agriculture: Policy Assessment and Design (OECD 2011)Google Scholar.

95 USDA News Release 260.12 Agriculture Secretary Vilsack Announces New Drought Assistance, Designates an Additional 218 Counties as Primary Natural Disaster Areas, Washington, DC, 1 August 2012.

96 European Commission, COM (2011) 627, Preamble (37) and art 5. For subsequent political agreement on these reforms, see European Commission, MEMO/13/621, ‘CAP Reform – An Explanation of the Main Elements’, Brussels, 26 June 2013.

97 Annex 2, para 10(b).

98 See eg Schnepf, R, CRS Report for Congress: WTO Compliance Status of the Conservation Security Programme (CSP) and the Conservation Reserve Program (CRP) (Congressional Research Service 2007)Google Scholar; and Effland, A, Classifying and Measuring Agricultural Support: Identifying Differences Between the WTO and OECD Systems (USDA Economic Research Service 2011)Google Scholar.

99 And it may be reiterated that the programme must meet the fundamental requirement of not having more than minimal effects on production.

100 USDA News Release 76.12, Agriculture Secretary Vilsack Announces New Conservation Reserve Program Initiative to Restore Grasslands, Wetlands and Wildlife, Washington, DC, 2 March 2012.

101 USDA News Release 260.12 (n 95).

102 Indeed, Commissioner Fischer Boel claimed that by 2006 nearly 90 per cent of direct payments within the EU-25 would already be production neutral: Speech/05/511, ‘The Common Agricultural Policy: History and Future’, Washington, DC, 15 September 2005.

103 Agreement on Agriculture, Annex 2, para 6(e).

104 For full discussion of this criterion by the Appellate Body, see United States–Subsidies on Upland Cotton (3 March 2005) WT/DS267/AB/R, paras 318–342 (and, in particular, para 326: ‘[i]n contrast to the other subparagraphs of paragraph 6, paragraph 6(e) does explicitly distinguish between positive and negative production requirements, because it prohibits positive requirements to produce’).

105 Agreement on Agriculture, Annex 2, para 6(b).

106 (3 March 2005) WT/DS267/AB/R, para 324.

107 See eg OECD, Environmental Cross Compliance in Agriculture (OECD 2010)Google Scholar.

108 For the current legislation, see Council Regulation (EC) 73/2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers [2009] OJ L30/16, arts 4–6 and Annexes II and III. See generally eg Bianchi, D, ‘Cross-Compliance: The New Frontier in Granting Subsidies to the Agricultural Sector in the European Union’ (2007) 19 GeoIntlEnvtlLRev 817Google Scholar; and Phelps, J, ‘Much Ado About Decoupling: Evaluating the Environmental Impact of Recent European Union Agricultural Reform’ (2007) 31 HarvEnvtlLRev 279Google Scholar.

109 For political agreement to this effect, see European Commission, MEMO/13/621 (n 96); and, for the earlier proposed regulation, see European Commission, COM (2011) 625, arts 29–33. Significantly, this ‘greening’ is considered ‘to go beyond cross compliance’: ibid, Explanatory Memorandum, 7–8.

110 European Commission, COM (2011) 625, art 32.

111 See eg Agra Europe, ‘Ecological Focus Area Plan “Still Reaps Yield Gains”’, 10 February 2012.

112 Commissioner Cioloş, Speech/12/112, ‘Meeting the Challenge’, Birmingham, 21 February 2012. In addition, it may be noted that the proposed direct payments regulation envisaged a higher percentage of land being devoted to ‘ecological focus areas’ (7 per cent), but this was resisted by both the European Parliament and the Council (whose negotiating positions favoured initial coverage of 3 per cent in the case of the European Parliament and 5 per cent in the case of the Council): see, respectively, <http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2013-0084+0+DOC+XML+V0//EN&language=EN> and <http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/agricult/136582.pdf> both accessed 7 May 2013.

113 Claassen, R, The Future of Environmental Compliance Incentives in U.S. Agriculture: The Role of Commodity, Conservation, and Crop Insurance Programs (USDA/Economic Research Service 2012) 5Google Scholar (although it should also be noted that these farms did cover approximately 71 per cent of cropland). See also Even, WJ, ‘Green Payments: The Next Generation of U.S. Farm Programs?’ (2005) 10 DrakeJAgricL 173Google Scholar.

114 In particular, the Senate voted in June 2012 to eliminate direct payments, but, with the Bill itself failing to pass Congress, direct payments under the 2008 Farm Bill were extended to 30 September 2013.

115 See eg Commissioner Fischler, Speech/03/515, ‘CAP Reform and EU Enlargement: the Future of European Agriculture’, Leuven, 4 November 2003; and Commissioner Cioloş, Speech/10/400, ‘I Want a CAP That Is Strong, Efficient and Well-balanced’, Brussels, 20 July 2010. Also see generally eg Swinbank, A, Multifunctionality: A European Euphemism for Protection? (FWAG Conference, Stoneleigh 2001)Google Scholar.

116 See eg Cardwell, M, The European Model of Agriculture (Oxford University Press 2004) 365CrossRefGoogle Scholar.

117 See eg European Commission, ‘Mid-term Review of the Common Agricultural Policy’ COM (2002) 394, 19Google Scholar; and Swinbank and Tranter (n 81).

118 See eg Pretty (n 35); and Garnett and Godfray (n 38) 9.

119 Agreement on Agriculture, Preamble (6).

120 WTO, Revised Draft Modalities for Agriculture TN/AG/W/4/Rev.4, 6 December 2008, para 18. Interestingly, while the Cairns Group proposed elimination of the ‘Blue Box’, there was full acceptance that Article 6(2) should continue in full force and effect: TN/AG/R/4, 18 October 2002.

121 Para 3(iii). It may be observed that reference is made to improving agricultural productivity, as opposed to increasing the amount of production per se. See also WTO Fourth Ministerial Conference, Doha, 9–14 November 2001, Implementation-related Issues and Concerns: Decision of 14 November 2001, WT/MIN(01)/17, 20 November 2001, para 2.2 (adopting the text as set out in G/AG/11, 28 September 2001).

122 For full discussion of this aspect, see eg Häberli, C, ‘Food Security and WTO Rules’ in Karapinar, B and Häberli, C (eds), Food Crises and the WTO (Cambridge University Press 2010) 297CrossRefGoogle Scholar; and Smith, McMahon and Desta (n 69).

123 WTO, Revised Draft Modalities for Agriculture, TN/AG/W/4/Rev.4, 6 December 2008, Annex B.

124 FAO et al. , Price Volatility in Food and Agricultural Markets: Policy Responses (FAO and OECD 2011)Google Scholar para 47.

125 See Gonzalez, CG, ‘Institutionalizing Inequality: The WTO Agreement on Agriculture, Food Security, and Developing Countries’ (2002) 27 ColumJEnvtlL 433, 489Google Scholar.

126 See generally eg McMahon (n 40) 89–145.

127 GATT Modalities (n 60) paras XI, XV and XVI.

128 WTO, Revised Draft Modalities for Agriculture, TN/AG/W/4/Rev.4, 6 December 2008, Annex L.

129 ibid, Annex L, para 2(a). See also the proposal for a ‘Safe Box’ in emergency situations: ibid, Annex L, paras 6–10.

130 ibid, Annex L, para 3.

131 WTO, Hong Kong Ministerial Declaration, (WT/MIN(05)/DEC), 22 December 2005, para 6; but agreement at Hong Kong did not preclude further negotiation of issues of detail (such as value versus volume commitments): see eg ‘Challenge Paper’ of 30 April 2007 <http://www.wto.org/english/tratop_e/agric_e/agchairtxt_30apr07_e.pdf> para 55, accessed 7 May 2013.

132 See eg the low levels of expenditure on export refunds as set out in Title 05 (Agriculture and Rural Development) of the Draft General Budget of the European Union for the Financial Year 2013, Volume III/241. For a useful survey of EU expenditure on export refunds, see eg A Matthews, End the Use of Export Subsidies in the 2013 CAP Review <http://capreform.eu/end-the-use-of-export-subsidies-in-the-2013-cap-review/> accessed 7 May 2013 (noting that export refunds fell from 3.8 billion Euros in 2003 to an appropriation of just 138 million Euros in the draft 2012 Budget).

133 European Commission, COM (2011) 626 (and, in particular, Preamble (94)).

134 See generally eg Scott, J, ‘Tragic Triumph: Agricultural Trade, the Common Agricultural Policy and the Uruguay Round’ in Emiliou, N and O'Keefe, D (eds), The European Union and World Trade Law: After the GATT Uruguay Round (John Wiley 1996) 165Google Scholar; and Josling, TE, Tangermann, S and Varley, TK, Agriculture in the GATT (Macmillan Press 1996) 175CrossRefGoogle Scholar.

135 For export prohibitions and restrictions, see Agreement on Agriculture, art 12.

136 Mitra, S and Josling, T, Agricultural Export Restrictions: Welfare Implications and Trade Disciplines, IPC Position Paper (International Food and Agricultural Trade Policy Council 2009) 15Google Scholar; and Sharma (n 12) 23.

137 See eg Karapinar, B, ‘Export Restrictions and the WTO Law: How to Reform the “Regulatory Deficiency”’ (2011) 45 Journal of World Trade 1139CrossRefGoogle Scholar.

138 See eg BBC, ‘Russia Ban on Grain Export Begins’, 15 August 2010 <http://www.bbc.co.uk/news/business-10977955> accessed 7 May 2013.

139 On the other hand, it may be rather optimistic to expect Members to be able to gauge ab initio when critical food shortages are likely to abate. Note also continued use by the Ukraine of its export ban despite vociferous protests by other net-food importing WTO members: Committee on Agriculture, Summary Report of the Meeting Held on 18 November 2010, G/AG/R/60, 19 January 2011, paras 19–20.

140 WT/DS394/AB/R, WT/DS395/AB/R and WT/DS398/AB/R, 30 January 2012 (and, in particular, paras 318–328).

141 ibid, para 328.

142 WTO, Revised Draft Modalities for Agriculture, TN/AG/W/4/Rev.4, 6 December 2008, Part V.

143 ibid, paras 171, 172, 174 and 175.

144 ibid, para 176.

145 ibid, para 178.

146 Mitra and Josling (n 136) 3.

147 See generally eg Valdés, A and Foster, W, Net Food-Importing Developing Countries: Who They Are, and Policy Options for Global Price Volatility (International Centre for Trade and Sustainable Development 2012)CrossRefGoogle Scholar.

148 For discussion of this proposal, see eg International Centre for Sustainable Trade and Development, Ban Proposed on Export Restrictions That Undermine Food Security, 27 June 2011 <http://ictsd.org/i/press/109409/> accessed 7 May 2013. See also Bridges, ‘WTO Members Table Proposals on Agricultural Export Restrictions’, 15(37), 2 November 2011.

149 WTO, Eighth Ministerial Conference, Geneva, 15–17 December 2011, Chairman's Concluding Statement, WT/MIN(11)/11, 17 December 2011.

150 European Commission Directorate-General for Trade, Ninth Report on Potentially Trade Restrictive Measures: September 2011–1 May 2012 (European Commission 2012)Google Scholar.

151 See then EC Treaty, art 33(1), now TFEU, art 39(1). Even the Commissioner for Agriculture and Rural Development considered such calls for greater production ‘somewhat anachronistic’: Franz Fischler, Speech/03/515, ‘CAP Reform and EU Enlargement: the Future of European Agriculture’, Leuven, 4 November 2003.

152 The letter addressed criticism of the current WTO legislative framework in the Activity Report prepared by Professor Olivier de Schutter, the United Nations Special Rapporteur on the Right to Food, The World Trade Organization and the Post-Global Food Crisis Agenda: Putting Food Security First in the International Trade System (United Nations 2011) <http://www.wto.org/english/news_e/news11_e/agcom_14dec11_e.htm#letter> accessed 7 May 2013.

153 Research which has already provided beneficial includes that into ways of reducing methane emissions from cattle: see eg S Tamminga et al. , Feeding Strategies to Reduce Methane Loss in Cattle (Wageningen UR 2007)Google Scholar.

154 WTO, Revised Draft Modalities for Agriculture, TN/AG/W/4/Rev.4, 6 December 2008, Annex B.

155 ibid, para 35.

156 I Khrennikov, ‘Russia to Pay Farmers for Land Worked in WTO-Support Move’, Bloomberg Businessweek, 20 September 2012 <http://www.businessweek.com/news/2012-09-20/russia-to-pay-farmers-for-land-worked-in-wto-support-move> accessed 7 May 2013.

157 Agreement on Agriculture, Annex 2, para 6(b).

158 See eg European Environment Agency Scientific Committee, Opinion of the EEA Scientific Committee on Greenhouse Gas Accounting in Relation to Bioenergy, 15 September 2011 (highlighting that, for the purposes of combating climate change, the source of the biomass is critical).

159 On the other hand, in the case of the market access ‘Pillar’, the proposal in the Doha Round negotiations that developing countries should be able to designate ‘Special Products’ would seem well calculated to address this problem (as evidenced by the illustrative list of indicators which are to govern such designation): WTO, Revised Draft Modalities for Agriculture, TN/AG/W/4/Rev.4, 6 December 2008, Annex F.

160 Garnett and Godfray (n 38) 10.

161 Proposals to accommodate new issues such as food security are gathering momentum towards the Ninth Ministerial Meeting in December 2013: BNA WTO Reporter, ‘U.S., Others Put Forward Proposals to Facilitate WTO Bali Deal Package’, 1 May 2013.