The debate on food aid in the agriculture talks is getting interesting beyond the substantive economic issue of the extent to which ostensibly benevolent food aid can/does cause "commercial displacement" in aid-recipient countries. It is becoming, in potentia, another interface between the WTO and non-WTO international organizations. A key question is who decides that a state actually needs aid even if such aid might formally violate agricultural subsidy disciplines. Following African/LDC state proposals, the ag negotiations chairperson, Amb. Crawford Falconer, has circulated a paper, available here, according to which:
"9. [...] it might be possible, as a first step, to provide for the following:
Food aid transactions shall be exempt from the provisions of [...], where such aid is provided in response to an emergency appeal from:
(i) a relevant United Nations agency, the United Nations Consolidated Appeals Process, the International Committee of the Red Cross or the International Federation of Red Cross and Red Crescent Societies.
10. In principle, it would seem to be sensible also to accept the judgement of reputable and responsible international intergovernmental bodies. The issue would then resolve itself down to a more narrowly technical one of ensuring a reliable technical description, but without over-negotiating this.
11. But would it be necessary to confine this "trigger" standard only to purely intergovernmental bodies? This, at the moment, seems to be the view of some delegations. It cannot be denied, of course, that there are non-governmental and private institutions that have real repute in the field, albeit that there may be a view that it is unlikely that the relevant intergovernmental bodies are going to have, or at least very often, a differing view from these private or non-governmental bodies. But, bearing that in mind, is it warranted to have a blanket opposition to an appeal from them as representing an appropriate trigger in its own right?
12. This, it seems to me, comes down to an empirical and practical question as to whether, as a matter of performance in the field, these organisations "get it wrong". If the answer is that they do, or that some of them do, there might be understandable reticence to include their appeals as a standard.[fn. deleted] But if the answer is that they don’t, why would inclusion of an appeal from them be a problem? I have in mind such bodies as MSF, OXFAM, etc. It seems hardly credible to deny their expertise and role.
13. Thus the idea was advanced by the African and LDC Groups of "collaboration" between non-governmental organisations, private charitable bodies and relevant international humanitarian organisations as being a standard to apply so as to be responsibly inclusive of such organisations. Therefore, it is now for Members to consider what, if any, other agencies or relevant international humanitarian organisations could or should be added to this list. For example, could we not try:
(ii) a relevant intergovernmental or regional humanitarian agency, non-governmental organisation, or private charitable body, working in collaboration with a relevant United Nations agency, the International Red Cross and Red Crescent Movement or relevant international humanitarian organisation.
Are there other bodies that should be included?"
This proposal also raises the question of the formal role of NGOs such as Oxfam, as surrogates for intergovernmental organizations in what lawyers would classify as "determinations of fact".
One odd aspect, to my limited understanding, is that an emergency situation could be determined by the recipient state only in urgent,"exceptional circumstances": Recognising that, in exceptional circumstances, where the urgency of the food aid need is such that to wait for an appeal as set out in (i) or (ii) above would result in an undue delay in the provision of food aid, food aid provided in response to an urgent official government request by a recipient country shall also be exempt from the provisions of [...]. Under such circumstances, both the donor country and recipient government shall notify [...].
I would have imagined that if the recipient state has made a formal appeal for aid, that would be sufficient to estop any claims by the same state that subsequent aid received constituted "commercial disruption".
Indeed, what is more interesting is the vesting of intergovernmental organizations,perhaps even NGOs, with the de facto authority to determine that (a) a state needs aid; and (b) that subsidy disciplines do not apply, the position of the recipient state notwithstanding.
If we transpose this debate to the use of force/humanitarian intervention (see Ryan Goodman's thoughtful article, "Humanitarian Intervention and Pretexts for War", 100 American Journal of International Law, prepublication version here ), would we let Amnesty International determine that a given political human rights situation should allow - or mandate - military intervention?
Which re-raises the question of legitimacy, a possible response to some of Crawford's rhetorical questions. Who are these "relevant" NGOs? and what responsibility might they bear for their determinations?