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FOOD SECURITY AND THE RIGHT TO FOOD: FINDING BALANCE IN THE 2012 FOOD ASSISTANCE CONVENTION

  • Annamaria La Chimia (a1)
Abstract

On 25 April 2012, after years of negotiations delayed by halts and setbacks, the Food Assistance Convention was adopted—the latest in a series of agreements that since 1967 have regulated the international provision of food aid. Great expectations have been placed on the adoption of the Convention. In particular it was hoped that the Convention would answer the call for a new system of food aid governance, introduce more effective mechanisms to address world's food insecurity and, ultimately, improve and modernize the rules applicable to food aid. This article provides the first critical commentary of the Convention's text, assesses the strengths and weaknesses of its provisions and considers whether and how the Convention has modified the architecture of international food aid regulation. The article also indicates where amendments to the rules might be needed to make the international regulation of food aid more effective. The article concludes that the Convention is, on balance, a positive instrument that could improve governance and adequacy of food assistance. The Convention is also important for the international human rights discourse on how States can fulfil their obligation to assist countries in need in that it offers guidance on how to meet such obligation in the specific context of the right to food. States should therefore be urged to sign and ratify it.

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1 Food aid is defined as ‘commodities provided by international donors on concessional terms’; see WFP, ‘Food Aid Information System’ available at <www.wfp.org/fais/quantity-reporting/glossary>. As Barrett and Maxwell argue three elements characterize food aid: the international sourcing (so national food schemes, such as food vouchers, are not part of food aid); the concessionality of the financing (with a minimum grant element of 80 per cent); and the fact that it can be ‘in the form or for the provision of food’, C Barrett and D Maxwell, Food Aid After Fifty Years: Recasting its Role (Routledge 2006). The term ‘food assistance’ has recently emerged and for some it better reflects the variety of options available to donors when aiding beneficiary countries (see further section II). In this article both the term ‘food aid’ and ‘food assistance’ will be used; the former will be preferred when referring to the period preceding the Convention. No agreed definition of food assistance currently exists.

2 Food insecurity exists when people do not have physical and economic access to sufficient, safe and nutritious food to meet their dietary needs and food preferences for an active and healthy life. Food insecurity can be chronic or transitory. Chronic food insecurity is a long-term or persistent inability to meet minimum food requirements; transitory food insecurity is a short-term or temporary food deficit. See <www.wfp.org>.

3 The literature on the negative consequences of food aid is vast; see for all Barrett and Maxwell (n 1). See also E Clay and O Stokke (eds), Food Aid and Human Security (Frank Cass 2000).

4 See O De Shutter, ‘The role of development cooperation and food aid in realising the right to adequate food: moving from charity to obligation’, ref A/HRC/10/005, March 2009.

5 J Clapp, Hunger in the Balance: The New Politics of International Food Aid (Cornell University Press 2012); the author also acknowledges that ‘in situations of acute food shortages … such aid can mean the difference between life and death’.

6 Barrett and Maxwell (n 1).

7 Adopted along with the Grains Trade Convention.

8 The 1999 FAC originally expired in 2002 but it was renewed through yearly extensions for almost ten years. At the 106th session of the Food aid Committee members agreed not to extend the 1999 FAC which was finally allowed to expire on 30 June 2012. See <http://www.foodaidconvention.org/en/Default.aspx>.

9 Article 10.4 of the WTO Agreement on Agriculture makes reference to the Food Aid Convention and requires aid to be donated fully in grant form (to the extent possible) or on terms no less concessional than those provided under the FAC (ie with a minimum concessionality level of 80 per cent). As Clapp argues this reference is important because now all WTO members (so not just FAC members) are in effect required to refer to the FAC terms. See Clapp (n 5).

10 Clapp (n 5).

11 ibid and Barrett and Maxwell (n 1).

12 The FA Committee is the forum where rules elaborating further the provisions of the Convention are adopted and where information-sharing and discussion with other stakeholders is facilitated (see art 7.3 and art 7.6 of the Convention). All Parties to the Convention are members of the FA Committee. For a critique of the FA Committee and the lack of beneficiaries' and NGOs' representation see J Hoddinott and MJ Cohen, ‘Renegotiating the Food Aid Convention’ (IFPRI April 2007).

13 See Hoddinott, J, Cohen, MJ and Barrett, C, ‘Renegotiating the Food Aid Convention: Background, Context, and Issues’ (2008) 14 Global Governance 283.

14 For an extensive analysis of this point and a thorough critique of the 1999 FAC see ibid.

15 J Clapp and S Clark, ‘Improving the Governance of the Food Aid Convention: Which Way Forward?’ (2010) The Centre for International Governance Innovation, Policy Brief No 20.

16 For how to improve governance within the FAC and how ‘the FAC can fit into the broader global food security governance framework’ see ibid. The broader question of governance included discussions over how the FAC should integrate with other international organizations also dealing with food security.

17 E Clay, ‘A Future Food Aid or Food Assistance Convention?’ (ODI Background Paper on Food Aid No 6 July 2010) <http://www.odi.org.uk/sites/odi.org.uk/files/odi-assets/publications-opinion-files/6040.pdf>.

18 See for all Hoddinott, Cohen and Barrett (n 13).

19 Modalities for a new text of the AoA have been concluded in 2008 [See WTO Committee on Agriculture, ‘Revised Draft Modalities for Agriculture—Sensitive Products: Designation’ (6 December 2008) WTO Doc TN/AG/W/4/Rev.4] these contained, in Annex L, profuse provisions on food aid. While at the latest Ministerial Conference in Bali (7 December 2013) the 2008 Modalities have not been adopted, WTO members agreed that they remained ‘an important basis for an ambitious final agreement’ Document WT/MIN(13)/W/12 p 1.

20 Since 1967 the IGC has acted as the FAC host agency and secretariat.

21 Members of the 1999 FAC were Argentina, Australia, Canada, the European Union and its member countries, Japan, Norway, Switzerland, and the United States.

22 Food Aid Committee, 103rd Session held 14 December 2010, London, Press Release, 20 December 2010 <http://www.foodaidconvention.org/Pdf/p_r/prfacdec10.pdf>.

23 Depositary notification C.N.215.2012. Electronic copies of the Convention are posted on the United Nations Treaty Collection website at <http://treaties.un.org/doc/source/signature/2012/CTC_XIX-48.pdf >.

24 FAC Chair's Presentation at WFP Executive Board, 6 June 2013, available at <http://www.foodassistanceconvention.org/pdf/general/FAC_Presentation_WFP_June13.pdf>. Albeit an independent agreement the Convention follows within the stream of the Food Aid Conventions that since 1967 have regulated the provisions of food aid. Indeed the International Grains Council remains the Assistance Convention's host agency and secretariat (based in London), the objectives of the 1999 FAC are expressly endorsed by the new agreement (see preamble, para 1 of the Assistance Convention), the procedures for accession for members of previous FAC and for new members are different (see art 13 discussed below).

25 According to art 15, the Convention would enter into force 1 January 2013 if by 30 November 2012 five Signatories have deposited instruments of ratification, acceptance or approval. Japan was the first country to sign the Convention and to deposit the instruments for acceptance (24 July 2012) followed by the US (acceptance), Switzerland (ratified), Denmark (approval), Canada (ratified), the European Union (approved), Finland (acceptance) Austria (ratified) Luxembourg (ratified), Australia (ratified). Recently, the Russia Federation, Slovenia and Sweden have acceded 3 April 2014, 8 May 2014 and 12 May 2014 respectively. Other participants who have signed but have yet to ratify the Convention include Bulgaria, France, Greece and Portugal.

26 The words Members of the 1999 Convention and Parties of the Assistance Convention are used to reflect the different terminology employed by the two Conventions.

27 Art 13(1) of the 2012 FAC.

28 Art 13(2) of the Convention. This now includes important new donors of food assistance such as India, Brazil, the Republic of Korea and South Africa.

29 According to art 17 of the Convention any Party can propose the termination of the Convention at any time after its entry into force. As further explained below, the indefinite nature of the Convention might be one of the reasons why the Convention departs from previous conventions on the way Parties agree (and now can modify) their commitments.

30 Such analysis is necessary given the ambiguity of some of the Convention's provisions and the gap in the existing literature.

31 Two different aspects of the question of governance have been identified by scholars namely governance within the FAC and governance within the wider food security context, Clapp and Clark provide the clearest account of the question of governance which they identify in: ‘how the FAC can fit into the broader global food security governance framework and how to improve the performance of the more technical governance functions carried out by the FAC’. It is on the latter aspect that this paper first focuses. As Clapp and Clark argue, ‘the governance arrangements of the FAC are essential for its overall performance’; see Clapp and Clark (n 15).

32 As Clapp argues, the adoption of the first FAC was motivated by the desire of its members to regulate and impose some limits to the use of food aid as a means to dispose of surplus stocks whilst guaranteeing minimum quantities of food aid to countries in need; Clapp (n 5).

33 FAC Chair's Presentation at WFP Executive Board, 6 June 2013, <http://www.foodassistanceconvention.org/pdf/general/FAC_Presentation_WFP_June13.pdf>.

34 For example: whether food aid should be donated as grants or loans, whether it should be tied or untied etc.

35 Para 1 of the preamble of the Convention and art 2.

36 Art 2(a) and 2(c)

37 Para 4 of the preamble of the Convention. Curiously the Convention refers to the FAO principles rather than to the International Covenant on Economic Social and Cultural Rights where this right was first enshrined (this is probably due to the fact that the US, one of its primary signatories, has yet to ratify the ICESCR).

38 Its binding nature is for many to be inferred from a conjunct reading of the UN Covenant on Economic, Social and Cultural Rights and art 55 and 56 of the UN Charter. See De Schutter, O et al. , ‘Commentary to the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights’ (2002) 34 HRQ 1084 and for all M Salomon, ‘The Maastricht Principles on Extraterritorial Obligations in the Area of Economic, Social and Cultural Rights: An Overview of Positive ‘‘Obligations to Fulfil’’’, 16 November 2012 <http://www.ejiltalk.org/author/msalomon/>. The opposite view, held especially by developed States, sustain that development aid is not the consequence of an international obligation but the result of a discretionary moral commitment and as Cataldi says ‘therefore that sense of obligation on the part of states (opinio juris) which along with the diuturnitas is considered the constituent element of an international custom, does not seem to exist’ see Cataldi, G and Serra, G, ‘Tied Development Aid: A Study on Some Major Legal Issues’ (2010) 10 Italian Yearbook of International Law 219, 222.

39 Cataldi and Serra (n 38).

40 Art 2 on the ‘Principles of Food Assistance’ calls on Parties to ‘always adhere to these principles’ (emphasis added).The broad application of this provision is also to be inferred by the fact that when the Convention intends to limit an obligation to the commitment under the Convention it specifically says so, see, for example, various paragraphs in art 5 where wording such as ‘under the convention’ ‘in respect of the commitments’ are explicitly used to indicate that a specific obligation is limited to the assistance donated to fulfil the minimum commitments.

41 This means that the validity of the principles there endorsed can no longer be questioned, at least by Parties. For example, by agreeing to the Convention the US has recognized that local and regional purchases are effective means of providing assistance. This is very important in the US context where the Congress' opposition to reform US food aid has focused on questioning the benefits of triangular and regional purchases (see below).

42 See art 2.

43 The IGC mandate was to draft ‘a new Convention committed to providing appropriate and effective food assistance’; see FA Committee 103rd Session (n 22).

44 The very preamble to the Convention places food aid within the global discourse on enhancing aid effectiveness. The 2005 Paris Declaration on aid effectiveness is expressly recalled at para 5, together with reference to the Rome Principles for Sustainable Global Food Security and the 2009 Declaration of the World Summit on Food Security.

45 For example, the principles in art 2 include providing assistance in such a way as to protect livelihood and local production, avoid dependency, involve beneficiaries in the assessment of their needs, purchase food locally or regionally whenever possible, provide untied cash-based food assistance etc. Such principles have been recognized by the international community (see for all the Paris Declaration on aid effectiveness) and are now for the first time incorporated into a legally binding agreement.

46 Art 2(a)(vi) specifies that food aid (so not food assistance) is to be provided [always] in fully grant form whenever possible. A similar obligation is provided for food assistance in art 5.7, but in this latter instance the obligation is limited to commitments under the Convention. Given that the broader obligation applies to aid only it is reasonable to assume that ‘aid’ is different from ‘assistance’.

47 J Clapp and S Clark, ‘The 2012 Food Assistance Convention: Is a Promise Still a Promise?’ <http://triplecrisis.com/the-2012-food-assistance-convention-is-a-promise-still-a-promise/>.

48 ibid. Donors' commitments now include the use of cash and vouchers and other items (see below).

49 The fact that cash and vouchers could also be covered by the term ‘aid’ has never been doubted; besides art 4.3 and Rule 3 of the Rules of procedures and implementation which define what can be included as commitment could have alone sufficed to ensure broader range of options available to donors to fulfil their commitments.

51 See in contrast art VIII para (g) of the 1999 FAC which only exhorts members to consult with each other, coordination and collaboration was there limited to ‘between members’.

52 The international community has responded to the criticism against aid via an array of initiatives aimed at enhancing aid success: four high-level fora on aid effectiveness have followed one another since 2000, and various declarations and plan of actions have been endorsed by donor and recipient countries to make aid more effective. For example, the Paris Declaration on Aid Effectiveness recalled in the preamble to the Assistance Convention.

53 Art 2 para (b)(viii).

54 Art 2 para (c)(ii).

55 The 1999 FAC art 2(c)(iii) referred to ‘international standards,’ the Convention removes reference to international standards mentioning simply ‘applicable safety and quality standards’. This indicates that now recipients' national standards can also be taken into account. See also art 4(3).

56 See below the extensive discussion on tied food aid.

57 Arts 12 and 13. According to art 13(2) Custom territories can accede to the Convention only after being deemed eligible by a decision of the FA Committee. When considering an application for accession made by Custom Territories the Committee will take into account the minimum annual commitment that the applicant is prepared to make. When reading both the French and English versions of arts 12 and 13 it remains unclear whether the FA Committee's decision—and the procedures for reaching such decision—is mandatory when an application is made by both Custom Territories and other States who were not previously members of FAC or just when it is made by custom territories. Rule 13, which provides details on how the Committee can reach its decision, is silent on this point. Besides Rule 13 contains a grave typological error in that it wrongly refers to art 13(1) instead of 13(2) [art 13(1) refers back to art 12, ie FAC members who can accede to the Convention at any time; Rule 13 should instead have referred to art 13(2) and should have clarified if the procedures on the FA Committee's decision on Parties accession applied to both States and custom territories].

58 Some have argued that the Convention is not open to beneficiary States, see IFRC, ‘IFRC calls on states to ratify the Food Assistance Convention’ (IFRC 17 February 2014) <http://ifrc.org/PageFiles/119268/IFRC%20call%20for%20ratification%20of%20the%20Food%20Assistance%20Convention.pdf>; in my view only vulnerable populations are precluded from accessing the Convention because, even though they can now be beneficiaries of assistance, they are not ‘States’ or ‘other custom territories’.

59 The 1999 FAC reference to minimum commitments was set in art III(i) at 20000 tonnes (with the possibility to be reduced to 10000 tonnes over a period of three years under certain circumstances). This led to the assumption that countries unable to provide food aid could not accede to the FAC.

60 Indirect reference to minimum commitments is present in Rule 13 of the Rules of Procedures and Implementations establishing that ‘in considering an application for accession to the Convention under article 13(1) of the Convention, the Committee is to take into account all relevant factors, in particular the minimum annual commitment that the applicant is prepared to make in accordance with article 5(1) of the Convention’ (emphasis added). It could be argued that because the minimum annual commitment is the only factor mentioned and because no explanation is given of what other ‘relevant factors’ could be taken into account, the ‘minimum annual commitment’ element acquires special importance, to the extent that it could be questioned whether the Committee could grant accession to States that are unable to make (appropriate) minimum commitment. However, another aspect of this provision is unclear, namely whether it at all applies to States or to custom territories only. The language (in both the French and English official versions of the Convention) suggests that it applies to the latter only. Furthermore, such indirect reference to minimum commitment cannot be compared to previous reference to minimum commitments under the 1999 FAC as in that instance specific quantities of commitments were set and hence would be insufficient to exclude beneficiaries States.

61 Clapp and Clark (n 47).

62 This is clear from the adoption of the wording ‘the committee may invite’. It seems that some sessions of the meetings, ie the so-called ‘closed meetings’ continue to be reserved to Parties only.

63 International organizations and other donors were also invited. Brazil, Slovenia, Spain, the World Food Programme, and the Canadian Foodgrains Bank (the latter an NGO) participated as observers in the second meeting held 12 November 2013. This meeting was preceded 11 November by a seminar on nutritional interventions that involved a wide audience, for example, a representative from Save the Children was also present. The seminar was ‘aimed at exchanging information on activities and best practice, as well as improving the common understanding on global needs and gaps. See FA Committee, Press Release, 12 November 2013, <http://foodassistanceconvention.org/en/press/press.aspx>. A report of the session is available at <http://foodassistanceconvention.org/en/press/press.aspx>. The third meeting was attended by all signatories to the Convention and former members of the Food Aid Committee, by Brazil, Cuba and Kenya (present as observers) and a representative from TAFAD (representing a group of NGOs).

64 For example, remarkable is the role played by TAFAD (Trans-Atlantic Food Assistance Dialogue, an association of NGOs) during the process of renegotiating the Convention in terms of gearing towards food security the discussions held during the negotiations for the new Convention and lobbing for greater transparency and better use of aid resources. TAFAD is also to be praised for bringing discussions regarding the FAC to the public attention. It is therefore not surprising that representatives from TAFAD have been invited to the meetings of the FA Committee since the adoption of the new Convention.

65 Rule 12(d) of the Rules of Procedures and Implementation states that ‘proceedings of formal sessions and informal meetings are to remain confidential’. This provision is laid down in the context of determining the rules for participation of interested stakeholders in the works of the committee so it is directly relevant to proceedings of meetings where those stakeholders are also present. This will also limit the possibility to monitor the role played in the meetings by non-Parties (and more generally knowing whether the decisions of the Committee are inclusive of their interests).

66 According to art 7(4), the FA Committee adopts decisions by consensus, ie any Party to the Convention can oppose a decision by the Committee.

67 See art 11 only Parties have the right to pursue breaches of the Convention's obligations and to uphold its implementation.

68 See further section IV.

69 Target recommended by the 1974 World Food Conference.

70 Art III of the 1999 FAC laid down the specific commitment for each member. The USA pledged to provide 2.5 mmt equal to 51 per cent of the total commitment, see C Hanrahan and C Canada International Food Aid: U.S. and Other Donor Contributions (Congressional Research Service 2011). The 10000 tons commitment remained as a general goal in the preamble to the 1999 FAC. See Hoddinott, Cohen and Barrett (n 13).

71 For the first time in 1999 the EU commitment was expressed through ‘a combination of value and quantities’ (art III (E) of the 1999 FAC).

72 (Art 5(4) and 5(5)) initial annual commitment are to be notified within three months of a Party's accession to the Convention.

73 Renegotiating the Convention had been a long and painful process and one which Parties wanted to avoid having to repeat on a regular basis. At the same time the absence of a termination date meant that Parties required the option to be able to modify their financial commitments over time.

74 The countercyclical nature of food aid donations have long been exposed by critics (ie food aid is least available when prices are high and food is needed the most, abundant when prices are low). See Hoddinott, Cohen and Barrett (n 13). The Convention, by allowing parties to modify their commitments each year, institutionalizes and legalizes the countercyclical nature of food aid and although this defeats the spirit of the Convention, it is still permissible within the rules.

75 Some NGOs (TAFAD and the Food Grains Bank) have stressed the weakness of this aspect of the Convention and are lobbing for greater predictability and transparency. See <http://www.foodgrainsbank.ca/news>.

76 Indeed, predicting price fluctuations on a five-year cycle is more difficult than from year to year.

77 Clapp (n 5).

78 Fairly soon members' donations included cash and vouchers but members' commitments continued to be expressed in wheat equivalents

79 See art III(b) of the 1999 FAC.

80 Parties can choose the currency through which to express their value commitments. Quantity commitments can be expressed in tons of wheat equivalent or in other units of measure as per the Rules of Procedures and Implementation (art 5(3))

81 Since not all Parties have yet disclosed their minimum annual commitment, it is not possible to comment on whether Parties will donate more or less than under previous conventions. Comparisons are complicated further by the fact that it is difficult to ascertain how donors' value commitments will convert in quantities of food assistance (ie how much food will be possible to purchase with the cash donated) because this will depend each year on food prices and on the purchasing power of the currency chosen by donors.

82 See especially the comments and press releases published by TAFAD, The Trans-Atlantic Food Assistance Dialogue <http://www.fixturesdesign.com/tafad/about/> and Hoddinott, Cohen and Barrett (n 13).

83 See UNCHR ‘The role of development cooperation and food aid in realizing the right to adequate food: moving from charity to obligation, Report by Special Rapporteur O De Schutter’ (March 2009) UN Doc A/HRC/10/005.

84 In this respect Clay had argued that products under the 1999 FAC covered virtually ‘the entire range of commodities and processed foods likely to be provided as humanitarian relief or in nutritional programmes; E Clay, ‘Future Food Aid or Food Assistance Convention?’ (ODI Background Paper on Food Aid No 6, July 2010).

85 Rule 3 of the Rules of Procedure and Implementation.

86 I will specify below when a commitment is of general application and when instead it is limited to the annual commitment ‘under the convention’.

87 For example, art 11.1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The content of the right to adequate food has been further clarified by the Committee on Economic, Social and Cultural Rights (CESCR) in General Comment No 12 which states: ‘the right to adequate food is indivisibly linked to the inherent dignity of the human person and is indispensable for the fulfilment of other human rights enshrined in the International Bill of Human Rights’. See Committee on Economic, Social and Cultural Rights (CESCR), The Right to Adequate Food, (Art 11): General Comment No 12 (1999) UN Doc E/C.12/1999/5.

89 Arts 2(d), 2(c)(iii) and 1(b) respectively.

90 See eg arts 2(a)(i), 2(a)(ii) and 2(a)(iii).

91 Development assistance can be donated as grant or concessional sales (also known as soft loans), while grants do not need to be repaid concessional sales will need to be paid back by beneficiaries albeit on terms more convenient than market prices but which nonetheless involve expenditure for the recipient country.

92 Art 5.8.

93 Art 2(a)(v). This principle always applies whenever Parties donate food assistance.

94 Indeed art 5.9 is not limited as instead other obligations in art 5 to minimum commitment only (compare eg art 5.9 with art 5.7).

95 A study by Clay shows that ‘the actual cost of tied direct food aid transfers was, on average, approximately 50% more than local food purchases and 33% more costly than procurement of food in third countries'; see E Clay, The Development Effectiveness of Food Aid: Does Tying Matter? (OECD 2005). P Harvey et al., ‘Food aid and food assistance in emergency and transitional context: a review of current thinking’ (Humanitarian Policy Group 2010) <http://www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinion-files/6038.pdf>.

96 On the increased timeliness of tied direct transfers see E Lentz, S Passarelli and C Barrett, The Timeliness and Cost-Effectiveness of the Local and Regional Procurement of Food Aid (Cornell University 2012) <http://www.dyson.cornell.edu/faculty_sites/cbb2/Papers/LRP%20Ch%202%20Lentz%20et%20al.pdf>. The US Government Accountability Office also found that food from the US is considerably slower than food purchased locally or regionally, and required 147 days on average to reach ten selected African countries, whereas locally purchased food was available in 35 days, and food procured in neighbouring countries in 41 days. See USGAO, ‘International Food Assistance: Key Issues for Congressional Oversight’ (United States Government Accountability Office 2009) <http://www.gao.gov/assets/130/122649.html>.

97 Clay (n 95).

98 Other donors also use tied food aid, for example, Japan and Canada tie 45 per cent and 44 per cent of their food aid respectively. Others such the EU, make more use of triangular transactions; Clay ibid.

99 During the negotiations for reforming the WTO agreement on agriculture the US has explicitly linked negotiations to untie food aid to the abolition of direct subsidies by other WTO members.

100 Lobbies include agribusiness and shipping corporations, who produce and transport the food, and some NGOs (those who sell the food in beneficiaries' markets to finance their activities).

101 During the Bush administration, various attempts were made to change PL 480 and allow 25 per cent of food aid allocations to be purchased in developing countries through local and triangular purchases. These, however, were not endorsed by the US Congress that in 2005, 2006 and 2007 repeatedly rejected them. See C Dugger, ‘Poverty Memo: African Food for Africa's Starving Is Roadblocked in Congress’ New York Times (12 October 2005) cited in Hoddinott, Cohen and Barrett (n 13). A much more modest reform was instead implemented through the setting up of ad hoc programmes. A pilot local and regional procurement (LRP) programme was established by the 2008 Farm Bill, Section 3206 (PL 110-246) which provided the US Department of Agriculture (USDA) with US 60m dollars over four years (financial year 2009–financial year 2012) for LRP.

102 Provisions to ensure transparency and fair participation of foreign suppliers in the procurement process include: wide publication of procurement notices and opportunities, adequate time limits to ensure sufficient time is allowed between publication of the notice and deadline for participating to the tender, award notifications. The literature on this topic is vast. See for all S Arrowsmith, J Linarelli and S Wallace, Regulating Public Procurement (Kluwer Law International 2000).

103 Other examples could be made, such as the Convention could have required Parties to provide ex ante and ex post information on the procurement opportunities issued each year, together with information on contract awards; the Convention's secretariat could perform the monitoring role undertaken by the DAC in respect of the OECD Recommendation.

104 Art XII of the 1999 FAC stated: ‘(a) In order to promote local agricultural development, strengthen regional and local markets and enhance the longer-term food security of recipient countries, members shall give consideration to using or directing their cash contributions for the purchase of food: (i) for supply to the recipient country from other developing countries (‘triangular transactions’); or, (ii) in one part of a developing country for supply to a deficit area in that country (‘local purchases’). (…)’

105 The process of monetization is involved when aid is granted as programme food aid. The WFP defines it as ‘food aid provided on a government-to-government basis. It is not targeted at specific beneficiary groups. It is sold on the open market and can be provided either as a grant or as a loan’. WFP, Food Aid Information System, <www.wfp.org>.

106 Donors and beneficiaries often reach an agreement on how the money generated by the food aid sold should be used.

107 FAO, Responding to the food crisis: synthesis of medium-term measures proposed in inter-agency assessments (FAO 2009) available at <www.fao.org/fileadmin/user_upload/ISFP/SR_Web.pdf>.

108 Rule 2 of Rules of Procedures.

109 See Lentz, Passarelli and Barrett (n 96).

110 US legislation (PL 480) requires that 75 per cent of USAID and 50 per cent of USDA managed food aid be transported in ‘flag-carrying’ vessels registered in the US. Harvey et al. (n 95). such conditions are also cause of further inefficiencies for example donors subject to tied transportation requirements cannot make use of more efficient means of purchase, such as purchasing food on the local and regional market. As USGAO noted, ‘as long as US law requires 75 per cent of American food to be shipped on US flag vessels, the ability to use local and regional purchase will continue to be constrained’. USGAO, ‘International food assistance: Key Issues for Congressional Oversight’ (DC, United States Government Accountability Office 2009).

111 Art III(f) expressly allowed members to count associated costs towards their commitments. However, art III(g) of the 1999 FAC provided that ‘in respect of transport and other operational costs, a member cannot count more than the acquisition cost of eligible products towards its commitment, except in the case of internationally recognised emergency situations’ such provision is not reiterated in the new convention.

112 Dissent can be expressed at a formal session or within 30 days after the circulation of the minutes of a formal session recording the proposed decisions concerned. Further it needs to be remembered that non-Parties to the Convention—ie beneficiaries of assistance or other interested stakeholders such as NGOs—will not be allowed to raise complaints. This is bound to result in fewer disputes being brought in front of the Committee than if beneficiaries were also allowed to raise complaints.

113 The Convention only requires that ‘the unfulfilled amount shall be added to the Party's minimum annual commitment for the following year’ unless the FA Committee decides otherwise (art 5.13). As in the past a five per cent cap is imposed on the excess quantities of donation that can be transposed from one year to the next art 5.14 of the Convention. Thus, if a member contribution in one given year exceeded its minimum annual commitment (for example, because of excess food production and/or low prices), no more than five per cent of the excess assistance could be carried forward to the following year.

114 This issue was first raised against the 1999 FAC. For an extensive discussion see Hoddinott, Cohen and Barrett (n 13).

115 Although previous conventions encouraged members to exchange information on their food aid programmes and on the fulfilment of their obligations, no systematic mechanisms was in place to sure information was timely shared amongst Parties. See in particular art XIV of the 1999 FAC.

116 Art 6 of the Convention. Annual Reports need to be submitted within 90 days of the end of the calendar year.

117 ie, how much (in quantities of wheat equivalent and/or value) and what type of products/activities are provided.

118 The language of Rule 9 is explicit in requiring that only information related to the quantum of Parties’ obligations ‘should’ be included, while all other information ‘may’ be included in the report.

119 Art 2 encourages parties to ‘monitor, evaluate and communicate on a regular basis the outcomes and impact of food assistance activities in order to further develop best practices and maximise their effectiveness’.

120 The 2014 report expresses commitments for each Party in local currencies only and it does not show the USD equivalent for each commitment making comparisons between donors extremely difficult. Fortunately the problem has been addressed the following year with commitments expressed in both donors’ local currencies and in USD.

121 For example, it is reported that in-kind products represent approximately 76 per cent of food assistance provided by FAC members, nutrition intervention to approximately 5 per cent etc.

122 Some donors provide more information than others. The US, for example, provides data on the percentage of local, triangular and in-kind food aid, of cash transfers and vouchers. Japan, in contrast, does not provide any such information. Other Parties only provide limited and selective information, for instance, it is mentioned in the summary report for Switzerland that in 2014 Switzerland donated Swiss dried skimmed milk as in-kind food aid which is indicative that Swiss aid was tied.

123 See for all criticism of previous FAC and suggestions for reforms by Hoddinott, Cohen and Barrett (n 13).

124 The UN Special Rapporteur on the Right to Food, Professor Oliver De Schutter, also indicated that one way for improving the monitoring systems within the FAC and ensuring that donors do not violate recipients’ right to food, would be to recur to external observers. See De Schutter (n 83).

125 In contrast, for example, the OECD/DAC Recommendation on untying aid to LDC and HIPC reserves to the OECD/DAC committee the role of monitoring and evaluating ‘all aspects’ of the agreement, via three mechanisms: the Annual Reports, the Peer Reviews of individual DAC Members, and a ‘comprehensive evaluation’ on the effectiveness of the Recommendation to be published periodically. A similar approach could have been followed under the Convention.

126 This solution was advocated to improve the overall transparency of food assistance and align food aid policies to those adopted for aid in general’ See E Clay, ‘A Future Food Aid or Food Assistance Convention?’ (Overseas Development Institute Background Paper No 6, June 2010) <http://www.odi.org.uk/resources/download/4941.pdf>. The major disadvantage of this proposal is that the OECD is donors-driven so the agreement would remain a donors’ club. Further some FAC members are not OECD/DAC members (such as Argentina) therefore special arrangements would need to be put in place. To this end Clay suggests the establishment of a DAC-plus group.

127 This would have enabled to gain from the specialized expertise of these institutions and to better coordinate the work of the various bodies dealing with food assistance.

128 See Clapp and Clark (n 15) who argue that ‘Relocating the FAC to a Rome-based structure linked to existing UN bodies would resolve many governance input issues, but it is likely that the current member-State donors of the FAC would not be comfortable giving recipient countries and civil organizations any say in negotiating their food aid commitments’ (footnotes omitted). See also TAFAD (n 64).

129 Coordination with other international institutions is maintained in the limited form of granting observer status to other international organizations willing to participate to the FA Committee meetings (see above).

130 The WTO negotiations started in 2001 and are built upon three main categories (or pillars): market access—aimed at reducing tariffs for agricultural products and reaching agreements on opening up trade in agriculture for products currently not covered by the agreement; domestic support—aimed at the elimination of subsidies to national farmers; and export competition—aimed at the elimination of any form of subsidies for the export of national products. Negotiations on food aid are taking place within the export competition pillar which also includes direct export subsidies, export credits, State trading enterprises and food aid. Hence, the WTO negotiations on food aid are closely interrelated with the negotiations taking place in other sectors of the AoA. See Clapp, J, ‘WTO Agriculture Negotiations: Implications for the Global South’ (2006) 27 Third World Quarterly 563 and also Clapp (n 5)). Hanrahan and Canada (n 70).

131 Parties to the Assistance convention are also WTO members.

132 See eg art 10 of the WTO Agreement on Agriculture (n 9).

133 This criticism has not been sedated despite the ‘development agenda’ becoming a top priority for the WTO Doha round of negotiations and the ‘promotion of development’ the ‘core business of the multilateral trading system’; Subedi, P, ‘The Road from Doha: the Issues for the Development Round of the WTO and the Future of International Trade’ (2003) 52 ICLQ 425; Y-S Lee, Reclaiming Development in the World Trading System (Cambridge University Press 2007). Wade, RH, ‘What strategies are viable for developing countries today? The World Trade Organization and the shrinking of “development space”’ (2003) 10(4) Review of International Political Economy 621; Devadoss, S, ‘Why do developing countries resist global trade agreements?’ (2006) 15 Journal of International Trade & Economic Development 191; D Alessandrini, Developing Countries and the Multilateral Trade Regime: The Failure and Promise of the WTO’s Development Mission (Hart 2010).

134 See, for example, exponents of the so-called ‘trade and debate’ or ‘trade linkage’ debate. In particular Nichols, P, ‘Trade without Values’ (1996) 90 NWULR 658; R Howse and M Mutua, ‘Protecting Human Rights in a Global Economy: Challenges for the World Trade Organization’ (International Centre for Human Rights and Democratic Development, Policy Paper, 2002). The frame of this criticism has been challenged in recent years and a new interpretative model has been proposed to engage with the debate over the objectives and scope of ‘free trade’, of the WTO and with the fundamental question of ‘what free trade can and should mean’. See Lang, A, ‘Reflecting on Linkage: Cognitive and Institutional Change in the International Trading System’ (2007) 70(4) MLR 523; and A Lang World Trade Law after Neoliberalism: Reimagining the Global Economic Order (Oxford University Press 2011).

135 Lee (n 133) 107–14.

136 One of the criticisms raised by Lang towards the ‘trade and’ debate is that ‘…it is precisely this construction [of labour as a ‘non-trade issue’] which the linkage debate tends to perpetuate, by treating the conceptual separation of ‘trade’ and ‘labour’ issues as self-evident, natural and given. The debate perpetuates a conceptual framework within which arguments of the kind Ruggiero proposes [ie the WTO cannot drift away from its trade vocation and cannot offer solution for non-trade issue] are persuasive and are deployed to legitimise the current shape of trading institutions.’ See Lang (n 134). Following this it could be argued that one should not frame the discussion on art 3 of the Convention in terms of supremacy of trade over food security.

137 Food security has mainly been dealt by institutions within the UN system. Food security experts have reluctantly engaged with the WTO literature. Art 3 has brought to the attention of the FA Committee, of the Parties of the Convention and of all food security and food aid commentators, the importance of WTO rules for food security, now requiring engagement with those rules. Meanwhile the WTO should engage more with the FA Committee and accept the invite to join its meetings.

138 See above (n 19). The 2008 modalities on agriculture at art 10.4 dealt extensively with the trade-related aspects of food aid, proposing stricter rules to prevent WTO members using food aid as an export tool. In Bali WTO members focused instead solely on transparency of food aid donations, the Draft Ministerial Declaration on the export competition pillar of the AoA, agreed 3 December 2013, titled Elements for Enhanced Transparency on Export Competition requires WTO members to provide the following information on food aid: ‘1. Product description; 2. Quantity and/or value of food aid provided; 3. Description of whether food aid is provided on in-kind, untied cash-based basis and whether monetization was permitted; 4. Description of whether in fully grant form or concessional terms; 5. Description of relevant needs assessment (and by whom) and whether food aid is responding to a declaration of emergency or an emergency appeal (and by whom); 6. Description of whether re-export of food aid is an option under the terms of the provision of food aid.’

139 However, this is not to say that the Convention is not binding amongst its Parties. The Convention is a formal international agreement—signed and ratified by its Parties—and it has the legal status of a binding international agreement. Parties who do not fulfil their commitments violate their international obligations, but the lack of appropriate dispute resolution and monitoring mechanisms weakens the force and credibility of the commitments endorsed. On the legal status and implications of the lack of monitoring and enforcement mechanisms of international agreements see Guzman, AT, ‘The Design of International Agreements’ (2005) 16(4) EJIL 579612.

140 See Clapp (n 5) and De Schutter (n 4).

I would like to express my heartfelt thanks to Professor George-Andre Simon for the lively discussions on many of the ideas presented in this paper and for his many suggestions and advice on this paper in draft. I would also like to express my gratitude to Professor Therese Murphy for reading and commenting on this paper in draft and to Dr Edward Clay for discussing with me some of the issues here analysed. I would also like to thank the reviewers of this paper for their thorough comments and suggestions. Finally, I am grateful to the British Academy for funding part of the research necessary for completing this article. The usual disclaimers apply.

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International & Comparative Law Quarterly
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