The international regulation of the food market: Precedents and challenges

This paper rests on the simple premise that agri-businesses exists to make money. Like any other commercial sector, agri-businesses make money by maximising their share of the market whilst minimising their outlay. Minimising outlay can, and often does, mean ensuring that animal welfare standards are applied at the most minimal level allowed under the laws of the State in which the 'products' are 'produced'. 7 Hence if the agri-sector of State 'A' has very few regulatory requirements of animal welfare then this will place State 'A' at a competitive advantage in terms of its exports to State 'B' (which might adopt and implement higher animal welfare standards for its own agri-sector). This is clearly a problem for State B (from a financial and ethical point of view), and to correct this imbalance State B might wish to invoke trade restrictive measures ('TRMs') against imports from State A. By closing off the markets of State B to a business entity based in State A, this clearly has an impact on that entity's ability to maximise their share of the market and, consequently, might compel them to consider modifying their practices. Unfortunately whilst this logic is simple to understand, in practice it becomes very difficult to apply due to the historic reluctance of courts to allow such fetters on trade. This paper will demonstrate how, in the sphere of the international trade in fisheries it is lawful for States to implement TRMs against those States whose vessels do not abide by certain conditions (concerning the manner in which the fish were harvested) and effectively prohibit the import of non-compliant fisheries products into their territory. Following this analysis the paper will posit the simple question of what the real differences between constraints on trade for the protection of the marine environment and constraints on trade for the protection of animals actually are.