Introduction The Codex Alimentarius is the product of the intergovernmental body known as the Codex Alimentarius Commission (CAC), established by the Food and Agriculture Organisation (FAO) of the United Nations and the World Health Organisation (WHO) in 1961 (FAO 1962). A worldwide recognition of the importance of international trade, the need for facilitation of such trade, while at the same time ensuring the quality and safety of food for the world consumer, led to the establishment of the joint FAO/WHO Food Standards Program, the Codex Alimentarius (Dawson 1995).
The Codex gained added significance in 1995 because of the formation of the World Trade Organisation (WTO). The Codex standards were explicitly referred to in the WTO Sanitary and Phytosanitary Measures (SPS Agreement) and implicitly in the Technical Barriers to Trade (TBT) Agreement by the reference to relevant international standards. It thereby became an integral part of the infrastructure that regulates global food trade. From that time, Codex standards were linked to a legal authority as it was assigned a role in WTO disputes (Veggeland and Borgen 2005).
Evolution of Codex Alimentarius Today the world food trade is valued at between US$300 billion and $400 billion and therefore the advantage of having universally uniform food standards for the protection of consumers is self evident (FAO 2010). Given an expanding global economy, and increasing international trade, the task of ensuring food safety is complex. It is no longer acceptable to enforce only domestic standards. The Codex Alimentarius has become a global reference point for consumers, food producers and processors, national food control agencies and the international food trade.
It provides the reassurance to anyone anywhere that foods produced according to its codes of hygiene and complying with its standards are safe and nutritious and offer adequate health protection (Dawson 1995). Before 1995, the Codex procedures were designed to give states and stakeholders maximum control over which standards they adopted. This could, in turn, dampen potential conflicts. The voluntary elements of the acceptance requirements, which prior to 1995 were how a country ensured that no Codex standards would be imposed against its wishes; do not have the same standing in the post-1995 (Victor 2000).
During the Uruguay Round of General Agreement on Tariffs and Trade (GATT), the negotiators agreed that international standards, guidelines, and recommendations should be assigned in order to bring potentially arbitrary and unjustified national food regulations under the tight discipline of the WTO, which was inaugurated as a new international institution (Horton 2001). Measures necessary to protect human health, which is one of the fundamental reasons for the existence of Codex standards, are addressed in the agreed GATT or SPS text.
This agreement places an obligation on nations within the WTO, to ensure that SPS measures have a scientific justification, do not arbitrarily or unjustifiably discriminate between nations, are not applied in a manner that would constitute a disguised restriction on trade, are not more restrictive on trade than is necessary to provide the chosen appropriate level of protection, and are established and maintained in an open and ‘transparent’ manner (Dawson 1995).
In the pursuance of harmonization with regard to food safety the SPS agreement recognised the Codex standards as scientifically justified and accepted these as benchmarks against which national measures and regulations should be evaluated (FAO 2010) (Stewart and Johanson 1998). The TBT agreement covers technical regulation and standards including food quality measures. The TBT Agreement’s Article 2. says that members shall use international standards, or the relevant parts of them, as a basis for their technical regulations except when such international standards or relevant parts would be an ineffective or inappropriate means for the fulfillment of the legitimate objectives pursued. Thus, the Codex can play an important role as reference point for technical food regulations (Spenser Garret et al 1998) (Veggeland and Borgen 2005). The WTO agreements (including SPS and TBT Agreements) entered into force on January 1, 1995, and from that date Codex standards have taken on a new significance.
Following these Agreements, a national measure is considered legitimate as long as it is in line with internationally accepted standards. Consequently, the WTO must look to the Codex when settling trade disputes in which food safety or food quality (i. e. , technical food regulations) is a crucial component (Millstone and van Zwanenberg 2003). Consequences of Codex Alimentarius In the past, Codex standards in some instances concentrated upon end point inspection and tended to be restrictive of ways of meeting desired objectives.
This has changed. The current approach is one of setting desired objectives, but of allowing scope for different approaches in achieving the desired end point (Boutrif 2003). A key element in the development of Codex standards, recommended codes of practice and guidelines is the use of the ‘risk analysis’ approach (i. e. the assessment of the food hazards and the risk they post to human health) (Boutrif 2003). Risk analysis is a structured approach whereby risks to human health are assessed and the best means for their control are identified.
The implication is that regulatory decisions based on risk analysis should be consistent across different aspects of food safety. Risk analysis is assumed to play an important role in promoting fair trade by ensuring that countries establish food safety requirements that are scientifically sound, in full accordance with the purpose of the Codex. Without such a systematic assessment of risk, countries may establish import restrictions that are not related to food safety and thus create unjustified barriers to trade under the SPS Agreement.
HACCP, as a food safety management system, has been adopted to focus on preventative measures instead of relying on end product testing (Boutrif 2003) (Veggeland and Borgen 2005). However the consequences of adopting Codex were not limited to the evolution of the standards accepted. There were direct trade consequences as well. Codex decisions, before 1995, in practice, were without severe obligations and may have stimulated members to exercise superficial appropriateness and diplomacy without further consequences.
After 1995, words do in fact have more consequences in Codex deliberations. Codex members could feel “pressured” by a Codex decision into changing their own regulations. If no such change was made, they could end up spending a lot of time and resources on legitimating deviations from Codex standards. Furthermore, and probably most importantly, not adhering to Codex decisions could create serious legal (and economic) complications in future WTO disputes, depending, of course, on the states’ ability to justify any discrepancies (Veggeland and Borgen 2005).
The coalition of countries that we find in WTO meetings (on agriculture) now seems to be replicated in the Codex on issues that members perceive to have WTO relevance. They also reveal a tendency for countries to link their work on food safety within the Codex to their work on trade policy within the WTO. Generally, member states perceive their national interests to be more at stake in Codex meetings than before resulting in increased membership and participation in the preparation of standards by members.
This was a goal of the SPS agreement, as active membership participation is considered important to ensure that Codex standards and related texts take account of the full range of interests and viewpoints (industry, scientific, consumer and regulatory) and are developed by consensus (Dawson 1995). Codex Disputes Codex standards do not have the force of international law and are not directly legally binding on member countries (Horton 2001). WTO Agreements are binding for all WTO members. The member states are obliged to follow the provisions of both the SPS and TBT Agreements, which include references to the Codex.
Clarifications as to the role of the Codex have been made through the dispute settlement system of the WTO. First, the WTO has clearly stated that Codex standards are relevant as foundations for assessing whether or not member states fulfill their WTO obligations. Second, the concluded disputes show that the judicial bodies of the WTO are willing to go far in assessing whether or not national regulations are based on Codex standards. Third, the disputes show that, provided they cannot justify the legitimacy of a national regulation in other ways, member states could lose a case on the grounds that they did not follow a Codex standard.
Member states could thus be “forced” by the dispute settlement system to adjust their regulations (Veggeland and Borgen 2005). As stated, following Codex standards is not obligatory. It is no wonder that this situation induces uncertainty and confusion for Codex members. The provisions of the SPS Agreement cannot be interpreted to mean that national requirements must “conform to” the requirements of Codex standards (Randell 1999). The WTO Appellate Body came to the same conclusion in its rulings in the “hormones case” between the U. S. and the EU (WTO 1998).
This case concerned an SPS measure, an EU regulation banning the use of growth promoting hormones, which was not based within the meaning of Article 3. 1 of the SPS agreement on the Maximum level of Residues (MRL’s) of hormones in meat (established by the 1995 Codex standard). In this case Codex standards were important because the concurrent existence of a harmonised standard made it difficult for the EU to justify its measures, which resulted in a higher level of health protection than that insured by measures based on the relevant Codex standard (Poli 2004).
In such cases the WTO can decide that the offending countries exports are subject to very high tariffs by the prevailing country to approximate the economic harm done (Horton 2001). This was the result following the conclusion reached by Disputes Settlement Body of the WTO in the hormone case (WTO 2010). The member states that promote free trade strategies in the WTO try to restrict the scope of the Codex infrastructure (standards, principles, guidelines).
Their arguments are influenced by an ambition to avoid provisions that may restrict both trade and the room for maneuver in choosing national regulatory goals and the means to achieve them. Thus, they want to limit the scope of applicability of Codex principles that could be used to limit trade, in order to avoid certain concepts (like precaution) (Veggeland and Borgen 2005). Precaution is a highly relevant and debated issue that raises many questions concerning risk tolerance, consumer safety, legal implications, and the relationship to trade.
So far, these questions are not sufficiently clarified in the Codex and may cause substantial confusion. The US and some developing countries see the “precautionary principle” as a tool that the EU wants to use as a substitute for tariffs and subsidies in order to maintain its protectionist agricultural policies. Other delegations were more positive to “precautionary thinking” and stated that the Codex should prepare guidance, as appropriate, under such circumstances (Veggeland and Borgen 2005). For the purpose of understanding and fostering consumer confidence in the risk analysis process, a reference to “precaution” was essential.
The SPS agreement states that in “cases where relevant scientific evidence is insufficient, a Member may provisionally adopt sanitary or phytosanitary measures on the basis of available pertinent information, including that from the relevant international organisations as well as from sanitary or phytosanitary measures applied by other Members. ” Some members have argued that this provision legitimises precautionary strategies, others, that it is watered down compromise without any reference to either precautionary principle or approach (Veggeland and Borgen 2005).
Challenges for Codex On several key issues under discussion, member states position themselves according to whether or not they are “agricultural free traders” in the WTO. Thus, countries argue in favor of norms that to a large extent are compatible with their national interests as manifested in WTO negotiations. At Codex meetings decisions are taken by national delegations, sometimes headed by trade promotion or commercial sector representatives with direct interest in decisions taken (Millstone and van Zwanenberg 2003). This development may conflict with the mandate of the Codex.
The Codex does not seem to have yet developed into a “strong” and “robust” institution where“logic of appropriateness” prevails over “logic of consequences”, in the sense that member states follow the inherent institutional norms instead of national interests. (Veggeland and Borgen 2005). There is a requirement for the frequent review of Codex standards to ensure they do not become dated (Dawson 1995). Mechanisms for the timely completion of Codex texts have gone some way to enhance the Codex process however such procedural reviews must be ongoing (Spencer Garrett et al 1998).
Scientific developments in fields relating to food, changing attitudes of consumers, new approaches to food control, changing perceptions of government and food industry responsibilities and changing food quality and safety concepts will present the Commission with new challenges and, conceivably, the need for new standards (FAO 2010). The effective participation of developing countries in the establishment and review of Codex standards is vital for the future of Codex (Boutrif 2003).
The inability of the Codex Commission to prevent WTO litigation suggests that this organisation is, as yet, unfit to settle politically sensitive issues or find compromises on them. This calls into question the capability of Codex to fulfill its role of harmonising the SPS measures of WTO members The hormones-in-beef case and the WTO dispute on the European moratorium on GMO’s are examples of codex Commission’s failure (Poli 2004). Conclusion The Codex has endured for almost 50 years and its work has been based on consensus.
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