The Bali Deal on Food Security-Binding and Legally Secure (contra Christian Haeberli)
This morning in Florence I presented a very rough version of a paper I'm working on about food security post-Bali. As followers of this site will recall, thanks to India holding firm, the interim solution on food security contains a peace clause that precludes dispute settlement complaints concerning pubic stockholding programs for food security, where the government purchases food from farmers at official prices, and which is to be in effect until a permanent solution on policy space for food security is reached through negotiations in the Round. In a recent paper for the FAO, http://bit.ly/1pPkFpb Christian Haeberli--who is overall quite hostile to policy space for developing countries in this area (though often that is expressed between the lines) questions whether there is any legal effect to the peace clause. He suggests it is a mere "political commitment". I'll be dealing with other aspects of Haeberli's argument in the full paper, but this particular notion deserves some immediate attention.
Frankly, it is rubbish. First of all, as Haeberli himself has to admit, the food security text is prefaced by a reference to Article IX of the WTO Agreement, which lists the means by which legal binding decisions are taken in the WTO system. Second, the instrument in question is called a decision and uses the expression "shall", which normally denotes hard law obligations. Haeberli's notion that in referencing Article IX, WTO Members would have had to use a different formula words than "having regard to" in order to create a binding decision is a complete invention unfounded in any textual provision of the WTO Agreement. Haeberli pretends that a peace clause of this nature, to have legal effect, would need to be done in the form of an amendment. But if we look at the DSU this is plainly wrong. Article 3.10 of the DSU requires good faith in the resort to the procedures of the DSU. A pretty obvious example of lack of good faith would be bringing an action that the Member in question, and indeed all other Members, have solemnly agreed not to bring. More generally one could easily understand the peace clause as an interpretation, in a specific context, of the provisions of Article 3 of the DSU that concern the need for a judgment that bringing a dispute would be fruitful, the obligation not to bring a dispute as a contentious act etc. Thus under the Vienna Convention on the Law of Treaties this would be a "subsequent agreement between the parties" concerning the interpretation of treaty. There is the issue that the reference to Article IX of the WTO Agreement is to paragraph 1 not 2. Paragraph 1 contains the general decision-making rule with respect to Decisions and Article 2 has some aspects of lex specialis with respect to authoritative interpretation. Even assuming that to accomplish an authoritative interpretation it was not enough to invoke the general provision in the food security instrument but rather one had to mention the lex specialis, paragraph 2, which I find doubtful, as a subsequent agreement under VCLT 31 the dispute settlement organs MUST take into account the food security instrument in interpreting the DSU.