B.

Restrictions and Prohibitions on Export of Food Materials

From many regulations that have been enforced, trade restrictions and prohibitions on
foodstuffs are one of the most crucial and sensitive policies, because of the following 3 (three)
things, namely first, the food industry consists of many actors with a complex process network,
so that requires targeted mapping for the impact on each party. Second, the global food system
also has a value of US $ 8 trillion or equivalent to around 10% of global GDP, so regulations
related to food trade will greatly influence the dynamics of the global economy going forward.
Finally, more than 3 (three) billion people in the world depend heavily on international trade to
support domestic food security, so that people's welfare is a very crucial variable.1
This policy is usually carried out by a country to mitigate the lack of stock of goods on a
domestic scale. Export bans and restrictions are generally prohibited by the WTO. 2 Basically,
according to the General Agreement on Trade and Tariffs (GATT) 1994 regulated by the World
Trade Organization (WTO) Article XI paragraph 1, states:
“No prohibitions or restrictions other than duties, taxes or other charges, whether
made effective through quotas, import or export licenses or other measures, shall be
instituted or maintained by any contracting party on the importation of any product of
the territory of any other contracting party or on the exportation or sale for export of
any product destined for the territory of any other contracting party.”
This indicates that WTO member countries are prohibited from introducing or maintaining
any form of export restrictions or restrictions other than duties, taxes or other fees. However, it is
still possible for WTO member countries to impose a quantitative restriction if they meet the
exclusion criteria specified in Article XI paragraph (2) letter a of GATT 1994, namely:
“The provisions of paragraph 1 of this Article shall not extend to the following: (a)
Export prohibitions or restrictions temporarily applied to prevent or relieve critical
shortages of foodstuffs or other products essential to the exporting contracting party;”.
Especially during the COVID-19 pandemic because a shortage of workforce is very
likely to occur due to disease or being prohibited from working to suppress the potential spread
of the virus. The WTO also requires member countries to continue to consider the effect on food

1
“COVID-19 and Export Restrictions: the Limits of International Trade Law and Lessons for the AFCFTA,” United
Nations Economic Comission for Africa, https://www.uneca.org/sites/default/files/PublicationFiles/atpc_brief-
covid19_export_restrictions-legal-analysis_eng_final1.pdf, p. 3.
2
Pelc, K. (2020). Can COVID-Era Export Restrictions be Deterred?. Canadian Journal of Political Science/Revue
canadienne de science politique, 53(2), p. 349.
safety for importing countries. Provisions regarding export restrictions and restrictions can also
be exempted by referring to other GATT provisions such as Article XII, Article XX, and Article
XXI. However, if it is related to the Covid-19 pandemic, the most relevant exceptions are those
contained in Article XI paragraph (2) and Article XX of the GATT 1994.3
According to data from the World Trade Organization (WHO), as of April 22, 2020, 80
countries have reported the implementation of 92 types of export restrictions or restrictions in
their respective countries, of which 17 countries have also restricted exports of foodstuffs. 4 Some
of these countries are exporters and producers of essential foodstuffs, such as wheat and rice. In
fact, wheat and rice contribute 40% of total global calorie needs. In addition, products such as
lemons, eggs, flour, onions, cheese, etc. were also affected. 5 On the one hand, this decision
tended to be positive because it was a form of prioritizing domestic needs for exporting
countries. Thus, the government can prevent price increases and shortages of supply in the
domestic market. However, this trade restriction also creates a negative impact because it
indicates an effort to reduce the availability of materials on the global market, thus creating a
domino effect, such as panic buying and more expensive price competition. Especially for low-
income consumers from importing countries who will find it increasingly difficult to meet their
daily food needs. This trade restriction policy will certainly continue to raise trade tensions for a
number of countries because many countries are starting to experience economic recession.
This condition ultimately affects the dynamics of the global economy because it is
projected to drastically decrease to -3%. In addition, the high financing of COVID-19 has also
prompted more than 85 countries to apply for emergency funding to the IMF.10 According to a
statement by a representative of the World Food Security High Level Panel of Experts on Food
Security and Nutrition, currently export-import regulations have affected on the supply and
demand for food and the capacity to produce and distribute food. This of course will have a
negative impact on global food supplies. However, there are several groups that will experience
greater losses, including countries that depend on imports for their daily activities and countries
with low economic income, such as Africa. The World Bank predicts that the performance of
3
Pauwelyn, J. (2020). Export Restrictions in Times of Pandemic: Options and Limits Under International Trade
Agreements. Available at SSRN 3579965. p. 6.
4
Export Controls and Export Bans over the Course of the Covid-19 Pandemic,” WTO, 29 April 2020,
https://www.wto.org/english/tratop_e/covid19_e/bdi_covid19_e.pdf
5
Jonathan Hepburn, David Laborde, Marie Parent, dan Carin Smaller, “COVID-19 and Food Export Restrictions:
Comparing today’s situation to the 2007/08 price spikes,” International Institute for Sustainable Development,
https://www.iisd.org/system/files/2020-08/COVID-19-food-export-restrictions.pdf
global exports during the COVID-19 pandemic is predicted to decline by 12.7%, one of which is
due to the export restriction. If this condition continues, a global food crisis may occur,
indicating the government's failure to achieve the targets of the Sustainable Development Goals
(SDGs).6

Protectionism Policy
Governments on various continents have implemented a number of measures allegedly
protecting their economies and health systems from the damage caused by the pandemic.
According to Associate Economic Researcher, Muhammad Zulfikar Rakhmat, from Indef, he
predicted that the COVID-19 pandemic that is sweeping the entire world will bring the world
back to the era of protectionism. In general, protectionism can be defined as a form of policy
deliberately made by the government of a country to protect domestic producers from external
competition. In the midst of world trade, which is currently developing towards liberalization,
protectionism is still emerging as a trade policy option. Protectionism is also divided into two,
namely old protectionism and new protectionism. Old protectionism is the application of
instruments of international trade barriers in the form of import tariffs and quotas. However,
since the liberalization of world trade after World War II began, the definition and measures of
protectionism began to shift and there was a trend of implementing non-tariff trade barriers
known as new protectionism. This protectionism is a form of obstacle with instruments that tend
to be more transparent and different from old protectionism. Philip I Levy in Imaginative
Obstruction: Modern Protectionism in the Global Economy places intent as an important key that
needs to be identified in defining protectionist policies implemented by the state. Levy classifies
protectionism in terms of the transparent or implicit nature of its policies and the form of policy
instruments used. The three categories in defining protectionism formulated by Levy are as
follows: First, intentional protectionism. This is the most transparent form of protectionism with
policy formulations that explicitly favor domestic industry over foreign imports. The policy
instruments used are instruments known generally as the application of import tariffs, export
subsidies and quotas.
Although it has experienced a very drastic reduction since the strengthening of trade
liberalization at the global level, this type of protectionism is still commonly applied in
6
Parulian, R. T., Mintarja, K., & Alexander, S. C. (2020). Dampak Kebijakan Komoditas Pangan di Masa Pandemi
COVID-19 terhadap Dinamika Perekonomian Global. Jurnal Sentris, 1(2), p.141.
developing countries for manufactured commodities and in almost all countries for agricultural
products. The second category of protectionism according to Philip I Levy is incidental
protectionism, which is a form of protectionism that has an effect similar to intentional
protectionism but works indirectly. In terms of policy, this form of protectionism does not appear
to explicitly discriminate against foreign products for products originating from domestic
producers. This can be done by applying strong legitimate provisions as requirements for foreign
products to enter the domestic market. This type of protectionism works indirectly by
incorporating non-trade elements into product import requirements such as the application of
health and safety standards. Third, instrumental protectionism. This form of protectionism is the
least transparent and is implemented by using trade policy as a tool to encourage political policy
change in other countries. If the bluff that is given is successful in changing the policies of other
countries, then the protectionism policy will not be implemented, although it certainly affects the
political relations between these countries. However, if there is no political change, a form of
trade protection will be applied as a consequence of the threat.7

Justification of Export Prohibition and Restriction

A prohibition or restriction that violates Article XI paragraph (1) cannot be "justified" in
Article XI paragraph (2), so the general exception contained in Article XX GATT 1994 can be
used. The analysis in Article XX consists of two levels which require that an action (in this case
a prohibition or restriction) must meet one of the exceptions set out in letters a to j and the
requirements set out in the opening words of Article XX (chapeau) where the chapeau is
specified:
"Subject to the requirement that such measures are not applied in a manner which would
constitute a means of arbitrary or unjustifiable discrimination between countries where
the same conditions prevail, or a disguised restriction on international trade, nothing in
this Agreement shall be construed to prevent the adoption or enforcement by any
contracting party of measures:…”
This Chapeau states that actions taken by WTO member countries to protect certain interests are
not allowed if the action is classified as indiscriminate or unjustifiable discrimination, or if the
action is a cover to limit international trade. Furthermore, the prohibitions or restrictions imposed

7
Ibid. pp.142-144.
during the Covid-19 pandemic will be very relevant if using letter b of Article XX which allows
WTO member countries to take actions "necessary to protect human, animal or plant life or
health". As an initial consideration, it is clear that this ban is intended to protect lives in the face
of the Covid-19 pandemic but whether the ban is "necessary" should be discussed further.
The analysis based on Article XX letter b and Article XI paragraph (2) letter a can be
distinguished for two reasons. First, state action in the form of prohibition or restriction in
Article XX letter b covers a broader scope and is not limited to "temporary" measures, as in
Article XI paragraph (2). Second, Article XI paragraph (2) letter a applies only if there is a
difficulty that is already "critical" for goods that are considered "essential" at that time for the
exporting country. Therefore, prohibitions or restrictions during the Covid-19 pandemic can be
more justified or justified under Article XX letter b even if the exporting country does not face
“critical” difficulties.8

Impact of Restrictions and Prohibitions on Export of Food Materials

As of June 2020, data from WHO and the International Trade Center (ITC), Myanmar,
Vietnam, Cambodia and the Philippines have also imposed a temporary ban on the export of
foodstuffs. At the start of the COVID-19 pandemic, Vietnam, as the third largest rice exporter in
the world, imposed a ban on the export of rice commodities. After Vietnam's rice export ban was
imposed, Thailand's rice price increased by more than 20%. This increase was also due to the
massive reduction in Thai rice production due to the dry season and logistical delays. In addition,
the increase in prices was also caused by delays in rice exports from India. After the ban was
lifted, the price of rice also fell by $ 44 per tons in less than one month. If the ban is still
enforced, it is possible that rice importing countries will be negatively affected by both the
supply of rice and the economy. This refers to the condition of eight out of ten ASEAN member
countries that depend on imports to meet their domestic food needs. 9 Although the export
restriction policy can be justified to contain the spread of the virus in the short term, if it

8
Effendi, C., Rahayu, N. G. A. M. N., & Achmadi, R. I. (2020). LARANGAN DAN PEMBATASAN EKSPOR DI
MASA PANDEMI COVID-19 BERDASARKAN ATURAN WTO. Jurnal Hukum Bisnis Bonum Commune
Volume 3, Nomor 2 Agustus 2020, pp. 235-236.
9
Alexander C. Chandra, Irfran Mujahid, dan Ruth K. Mahyassari, “Trade Measures in the Time of COVID-19: The
Case of ASEAN,” ASEAN Policy Brief, July 2020, https://asean.org/storage/2020/07/ASEAN-Policy-Brief-
3_FINAL_.pdf, p. 4.
continues, it will destroy weak countries in the economic sector. Hundreds of millions of people,
mainly in developing countries, depend on rice as a source of income. Rising rice prices could
limit these people's access to decent food.48 Therefore, on April 15, 2020, the Ministers of
Environment and Forestry from ASEAN countries gathered to issue statements that underlined
the need to keep regional food supply routes open. and reduce the use of export control
measures.10
According to predictions from the WTO, export restrictions or bans imposed by several
countries will only provide temporary positive effects. In the long term, export restrictions can
have negative effects on both exporters and importers. When a country imposes a ban or
restriction on exports, the price of domestic foodstuffs will increase, which in turn affects prices
on the global market. Price changes caused by the export ban generally depend on the
concentration of imports from the countries most affected by COVID-19, as well as the elasticity
of export demand. It is estimated that lower exports will result in a fourfold increase in prices.
Rising prices and insufficient supplies will have a negative impact, especially on importing
countries with low economic capacity. When viewed from the perspective of both exporters and
importers, protectionist measures taken by countries have threatened their food security.
Importing countries need to establish domestic policies that are able to sustain the needs of their
people. This is also proof that the COVID-19 pandemic is a form of threat to national security
not only for importers, but also for exporters. Exporting countries have a national interest in
providing protection for their citizens, both from an economic and social perspective, especially
in relation to food needs. In addition, fear of food scarcity results in increased demand. Based on
the chart below, it can be seen that many countries have experienced a drastic increase in rice
prices.11

10
Parulian, R. T., Mintarja, K., & Alexander, S. C. Op. Cit. pp. 150-151.
11
Ibid. pp. 152-153