Drowning Protection in the Multilateral Bath: WTO Judicialisation and European Agriculture in the Doha Round

Publication Date01 November 2010
AuthorArlo Poletti
Drowning Protection in the Multilateral Bath: WTO Judicialisation and European Agriculture in the Doha Round
doi: 10.1111/j.1467-856X.2010.00419.x
B J P I R : 2 0 1 0 V O L 1 2 , 6 1 5 – 6 3 3
Drowning Protection in the Multilateral
Bath: WTO Judicialisation and European
Agriculture in the Doha Round
Arlo Poletti
The existing literature on the EU’s participation in the agricultural negotiations of the Doha Round
assumes that EU policy-makers develop autonomous preferences in favour of liberalising agricul-
tural trade, thus going against the preferences of the agricultural sector. This article challenges this
view and argues that WTO judicialisation—the strengthened enforcement of rules introduced with
the creation of the WTO—affects the domestic politics of trade in WTO members. My key contention
is that WTO judicialisation confronts societal interests and public authorities with legal vulner-
ability, and that this elicits a willingness to co-operate with other WTO members and thus pre-empt
foreign challenges to domestic policies. Empirically, the article shows that negotiations centred on
offsetting the potentially disruptive effects of foreign legal challenges to EU farm policies.

Keywords: agriculture; European Union; negotiations; WTO
Much scholarly attention has been devoted to explaining the European Union’s
stance in the context of agricultural negotiations in the so-called Doha Round. The
subject is indeed puzzling. Quite surprisingly, the EU has so far taken a fairly
liberalising stance including substantial offers on market access and domestic
support as well as a commitment of highly symbolic relevance such as the willing-
ness to phase out its export subsidies by 2013. Also puzzling, in light of the
influence farmers have traditionally had in the EU trade policy-making environ-
ment, is that the EU set itself as the most fervent supporter of broad and compre-
hensive negotiations. Indeed, it is widely acknowledged that these negotiating
settings make it easier for negotiators to overcome societal pressures (Putnam 1988;
Moravcsik 1994; Davis 2004). Both outcomes therefore call into question the
explanatory power of standard political economy readings that view policy-makers
as transmission belts of societal demands. Recalling that Article 20 of the Uruguay
Round Agreement on Agriculture (URAA) mandated WTO members to start a new
round of negotiations on agriculture by the end of 1999 does not make these
puzzles any less relevant. In the last instance, the EU could have opted for a less
liberalisation-prone negotiating setting such as an agriculture-only mini-round.
It should come as no surprise, then, that a number of authors have explained the
EU’s stance on agriculture in the Doha Round by stressing the causal relevance of
© 2010 The Author. British Journal of Politics and International Relations © 2010
Political Studies Association

policy preferences defined by policy-makers autonomously from and at least partly
in contrast to farmers’ lobbying. Implicitly or explicitly, all existing explanations cast
doubts on the traditional view that conceives of the EU trade policy-making system
as strongly receptive of farmers’ demands and, conversely, support recent claims of
the decreased influence of European farmers in such a system (see Swinnen 2008).
Some authors point to ideas and value-based motivations of policy-makers such as
the preference for a ‘multilateralism first’ approach (Elsig 2007), the influence of a
‘post modern trade paradigm’ (Falke 2005) or the importance of the intrinsic values
of the EU system (Van den Hoven 2006). Other authors take a more nuanced view,
stressing the importance of the strategic use of a development discourse by the
European Commission (Van den Hoven 2004). Yet other analyses take a more
rationalist view with respect to the motivations driving public actors. Anders Ahnlid
(2005), for instance, explains the EU’s approach to the Doha Round as the result of
the Commission’s efforts to provide effective leadership to move the EU position in
a free trade-oriented direction and of its capacity to do so in the context of a
three-level negotiating game. Similarly, Eugenia Conceição-Heldt (2009) points to
the Commission’s ability to exploit divisions within member states and to play an
autonomous role in the negotiating game as the driving factor behind the EU
position on agriculture. Johan Swinnen tackles this question indirectly, conceiving
of the EU’s approach to agricultural negotiations in the Doha Round as the direct
consequence of Commissioner Fischler’s ability to exploit domestic and interna-
tional pressures to overcome existing opposition to a radical reform of the Common
Agricultural Policy (CAP) (Swinnen 2008). Finally, other authors suggest that the
EU policy preferences in agricultural negotiations were influenced by institutional
pressures at the World Trade Organisation (WTO) level. Some, for instance, point to
the influence on EU agricultural institutions of a liberal WTO-led paradigm under-
pinning global farm trade (Skogstad 1998; Daugbjerg and Swinbank 2009), while
others suggest that EU agricultural concessions reflected the desire not to lose
credibility in the eyes of its WTO partners by causing a breakdown in the negotia-
tions (Swinbank and Daugbjerg 2006).
This article challenges these arguments’ underlying assumption, namely that the
strategy pursued by EU policy-makers was not driven by a desire to protect Euro-
pean farmers. I argue that existing accounts overlook the impact of the strength-
ened enforcement mechanisms of WTO rules introduced in 1995 on how the
trade-related domestic interests in WTO member states define their policy prefer-
ences in relation to different negotiating venues available to them. With the cre-
ation of the WTO in 1995, the GATT’s model of political-diplomatic dispute
settlement was replaced by a judicial one.1 While in the GATT consensus was
required to form a panel, adopt a report and authorise retaliation for non-
compliance, under the new scheme the adoption of legal rulings and the authori-
sation of retaliation is no longer conditional upon consent by the defendant (see
Hudec 2000; Goldstein and Steinberg 2008; Zangl 2008). In other words, WTO
judicialisation increased the bindingness of WTO rules because WTO members that
breach those rules face a more credible threat that costs will be imposed on them for
their misbehaviour.
These institutional innovations at the WTO level have received very little attention
among scholars who aimed at providing a theoretically grounded account of the
© 2010 The Author. British Journal of Politics and International Relations © 2010 Political Studies Association
BJPIR, 2010, 12(4)

EU’s approach to agricultural negotiations in the Doha Round. This is particularly
striking both because a growing body of literature suggests that WTO judicialisation
is indeed a key factor shaping the domestic politics of trade (Goldstein and Martin
2000; Rosendorff 2005) and because a large amount of journalist and non-scholarly
records acknowledge that the shadow of WTO law impinged on EU negotiators’
preferences. This article seeks to fill this void. In a nutshell, the argument I propose
is that WTO judicialisation elicits a positive dynamic of co-operation by forcing
WTO members to develop anticipatory strategies to cope with legal vulnerability.
My key contention is that multilateral and multi-issue negotiating settings repre-
sent the best alternative for policy-makers who care about defending import-
competing groups from WTO legal challenges in so far as they provide them with
the following strategic opportunities: displacing the costs of a likely adverse WTO
panel ruling to an indefinite future, negotiating new rules that ‘legalise’ the tar-
geted policy instruments, reforming domestic policies to make them compatible
with WTO norms, and trading off concessions in exchange for concessions from
WTO partners. This WTO-level institutionalist account portrays a somehow para-
doxical scenario: under the incentives and constraints brought about by WTO
judicialisation, liberalisation may well result from an attempt to satisfy import-
competing groups’ demands for protection. This is not to argue that WTO judiciali-
sation turns protectionists into liberalisation seekers. Rather, my claim is that WTO
judicialisation changes the strategic context within which protection can be more
efficiently provided. In such a context, a constructive engagement in multilateral
and comprehensive negotiations can be deemed the most rational course of action
to provide protection. In other words, under given circumstances the shadow of the
law elicits defensive strategies that bring about an inherent liberalising potential.
The analysis proceeds in three steps. First, I speculate theoretically to support the
view that both the choice for multilateral and multi-issue negotiating settings and
the seemingly far-reaching concessions made by the EU can be consistently por-
trayed as a rational pre-emptive strategy, the ultimate goal of which was to defend
European farmers. Second, in order to support my claims, I discuss some of the
available empirical evidence concerning the relationship between EU agricultural
support schemes and WTO rules as well as the EU’s evolving negotiating strategy on
agriculture in the Doha Round. The assumption that underlies my empirical analy-
sis is that the EU’s role in...

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