Why Would International Administrative Activity Be Any Less Legitimate? — A Study of the Codex Alimentarius Commission

Abstract

This article examines the regulatory activity performed by the Codex Alimentarius Commission (Commission), which is the international body responsible for setting food standards and which has been the object of growing attention by lawyers. The main problem is that Codex standards, although they are not binding, strip national regulators of their discretion. This occurs because the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) and the Agreement on Technical Barriers to Trade (TBT Agreement) refer to them as relevant international standards. Furthermore, the World Trade Organization (WTO) Appellate Body has been construing its provisions in a way that makes it virtually impossible for national regulators to set higher levels of protection. From this it follows that, unless national constituencies are afforded the possibility to participate in the regulation of food safety at the outset before the Commission, when it comes down to setting national food standards national regulators are unable to fully respond to their concerns. This is all the more so if one considers that, while being undisputed that science plays a major role in the preparation of Codex standards, many issues the Commission has to address cannot be settled in strictly scientific terms. Instead, the latter enjoys a wide degree of discretion in striking a balance between fair trade and consumers’ health. The political dimension surrounding the issues the Commission has to address coupled with the legal effect of Codex standards raises questions about its legitimacy. Yet any assessment of the legitimacy of the Commission is necessarily incomplete unless it takes into account the comparative performance of national regulatory authorities.

I am grateful to António Manuel Hespanha, Armin von Bogdandy, Dario Bevilacqua, Gonçalo de Almeida Ribeiro, Jochen von Bernstorff, Matthias Goldmann, Miguel Poiares Maduro, Philipp Dann and Vera Eiró for comments. An earlier draft of this article was presented at a workshop on The Exercise of Public Authority by International Institutions: A Proposal for the Development of International Institutional Law, convened by the Max Planck Institute for Comparative Public Law and International Law. I thank the commentator, Eyal Benvenisti, and the participants, for their valuable comments.