Institutionalization and its consequences: The TLO(s) for food safety

This chapter analyzes the institutionalization of the transnational legal order (TLO) for trade-related food safety, or, more precisely, for the assessment of whether internationally traded agricultural goods are safe for human consumption. The subject matter of this TLO is at the intersection of trade, agriculture, and public health, although I will seek to examine what exactly the various interested parties understood to be the object of transnational governance rather than treat the boundaries of the issue area as primordially given. Today, in the public realm, the TLO for trade-related food safety is jointly underpinned by two international organizations – and their rules and procedures: the World Trade Organization (WTO) and the Codex Alimentarius Commission, a hybrid public-private body jointly created by the UN’s Food and Agriculture Organization and the World Health Organization. The WTO derives its authority in this issue area from the Agreement on Sanitary and Phytosanitary (SPS) Measures. The SPS-Agreement, an integral part of the founding treaty of the WTO and as such binding on all member states and enforceable through the WTO Dispute Settlement Mechanism, specifies that governments shall use “international standards” as the basis for any domestic regulations for which such standards both exist and can achieve the intended level of consumer protection. Its objective is to address common food safety issues through common rules, so as to avoid divergent national responses that would create (in effect, if not necessarily by intent) non-tariff barriers to trade. The drafters of the SPS-Agreement explicitly recognized that the food safety issues that arise in the context of international trade are likely to change over time. For this and some other reasons (see Büthe 2008), they refrained from specifying the applicable “international standards” in the text of the agreement. Instead, they defined “international standards” (for food safety and for the purposes of the SPS-Agreement) as all existing and future standards of the Codex Alimentarius Commission, in effect delegating substantial regulatory authority to the Codex.