Re-evaluating a Conflict between WTO Law and the Right to Food: The Case of Public Food Stockholding
Re-evaluating a Conflict between WTO Law and the Right to Food:
The Case of Public Food Stockholding
Shinya Ito
 
ABSTRACT: Although not being sufficiently recognised in existing literature, the trade and human rights debate involves three different understandings of ‘a conflict’ between World Trade Organization (WTO) agreements and human rights treaties such as the International Covenant on
Economic, Social and Cultural Rights (ICESCR) – (i) legitimacy conflicts, (ii) a narrow definition of normative conflicts, and (iii) a broad definition of normative conflicts. Unlike previous studies discussing it either as a legitimacy conflict or a normative conflict in a narrow sense, this article recharacterises an interface of the WTO Agreement on Agriculture (AoA) and the right to food in the ICESCR as a normative conflict in a broad sense. This perspective captures a situation where a WTO hard law obligation limits a State’s compliance with a specific ICESCR obligation clarified in soft law instruments including General Comments. It thereby enables us to explore a more thorough solution to the tension between WTO agreements and human rights treaties. The argument is demonstrated through a case study of public food stockholding where governmental purchases of agricultural products from poor farmers at a supported price, an essential measure for the right to food, face AoA restraints of domestic agricultural subsidies. The analysis of pertinent AoA provisions in combination with the 2013 Bali Ministerial Decision including its peace clause in light of the ICESCR and relevant soft law reveals remaining tension between the AoA and the right to food. For its solution, this article calls for a general human rights principle in the WTO legal order.

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