On reconciling rules, markets and power : responding to private voluntary standards through safeguarding the rule of law in international food trade

Abstract

The proliferation of private voluntary standards (private standards) in international food trade has precipitated a surge of inter-disciplinary discourse on the topic. Conceptual premises have been diverse, but a common thread through the discourse has been their practical impact on developing-country producers (particularly small to medium scale ones). The present paper contributes to legal analyses of private standards. It builds upon existing discourse on rules-based responses to private standards, from the conceptual premise of the rule of law. The perspective of the paper is that private standards are creating conditions wherein the rule of law in international food trade is being placed under strain. With that, the utility of the rules-based system of international food governance has begun to diminish. The viewpoint in this paper is that, from the perspective of the WTO, responses to private standards should be underlain by considerations of safeguarding the rule of law. Underscoring this is that a rule of law approach is the most ideal, in the long-term, for the WTO system and for low income Members themselves. The paper concludes that this will entail a necessarily multipronged strategy towards the challenges presented by private standards – one which incorporates rules-based responses, other interventions from within the WTO, and responses from outside of the WTO.