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An International Law Approach to Food Regime Theory

  • ANNE SAAB
Abstract

Hunger and food insecurity are viewed as global problems, requiring global responses. Even though there is no distinct field of ‘international food law’, many areas of international law in some way deal with issues related to global hunger and food insecurity. Hunger and food insecurity are immensely complex problems that cannot possibly be understood and addressed through an inherently limited disciplinary perspective. This article argues that food regime theory – an analytical tool developed and used mostly in the field of sociology – can provide a useful means through which to better lay bare the role of international law in constituting global food relations. If international lawyers are serious about contributing to reducing global hunger and realizing food security, it is imperative to situate international law and its specialized fields within the broader political economy of food.

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1 H. Bernstein, ‘Food Regimes and Food Regime Analysis: A Selective Survey’, Conference Paper No.1 at the conference Land Grabbing, Conflict and Agrarian-Environmental Transformation: Perspectives from East and Southeast Asia, Chiang Mai University, 5–6 June 2015, at 1.

2 Orford, A., ‘Food Security, Free Trade, and the Battle for the State’, (2015) 11 Journal of International Law and International Relations 2, at 19.

3 A number of short courses and programmes – sometimes within existing law departments – deal with international law and food, including: Alberto Allemano's Summer Academy in Global Food Law and Policy, available at www.albertoalemanno.eu/summer-academy-food-global-food-law-policy/; The Food Law and Policy Clinic at Harvard Law School, available at www.hls.harvard.edu/dept/clinical/clinics/food-law-and-policy-clinic-of-the-center-for-health-law-and-policy-innovation/; Michigan State University's Online Master's Degree in Global Food Law, available at www.globalfood.law.msu.edu/; the Master of Research in Food, Law and Finance, a joint academic programme between the International University College of Turin and the University of Gastronomic Science of Pollenzo, available at www.iuctorino.it/studies/m-res/.

4 See UN, ‘Key Conference Outcomes on Food’, available at www.un.org/en/development/devagenda/food.shtml.

5 Orford, supra note 2, at 6.

6 Think, for instance, of investment law and its relation to food security (see, for example, Manciaux, S., ‘Do the Rules of International Investment Law Oppose food Security Policies?’, (2012) 26 Revue Internationale de Droit Économique 4; Häberli, C. and Smith, F., ‘Food Security and Agri-Foreign Direct Investment in Weak States: Finding the Governance Gap to Avoid “Land Grab”’, (2014) 77 Modern Law Review 2), or of competition law in relation to food security (see, for example, Organisation for Economic Co-operation and Development, Directorate for Financial and Enterprise Affairs, Competition Committee, ‘Policy Roundtable: Competition Issues in the Food Chain Industry 2013’, 15 May 2014, DAF/COMP(2014)16).

7 Fakhri, M., ‘Food as a Matter of Global Governance’, (2015) 11 Journal of International Law and International Relations 2, at 68.

8 1994 Agreement on Agriculture, Annex 1A of the 1994 Marrakesh Agreement Establishing the World Trade Organization, 1867 UNTS 410.

9 For instance, in Art. 12(1)(a): ‘the Member instituting the export prohibition or restriction shall give due consideration to the effects of such prohibition or restriction on importing Members’ food security’.

10 Art. 1, Annex 2 to the Agreement on Agriculture, supra note 8. This Article sets out the requirements of so-called ‘Green Box’ subsidies.

11 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights, Annex 1C of the 1994 Marrakesh Agreement Establishing the World Trade Organization, 1869 UNTS 299; 33 ILM 1197 (1994).

12 The relevant part of Art. 27.3(b) reads as follows: ‘Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof’.

13 See, for example, R. Charnas, ‘“No Patents on Life” Working Group Update’, Council for Responsible Genetics, available at www.councilforresponsiblegenetics.org/ViewPage.aspx?pageId=169; Naturland, ‘No Patents on Life!’, available at www.naturland.de/en/1838-no-patents-on-life.html; The International Coalition of ‘No Patents on Seeds’, ‘Stop Patents on Plants and Animals!’, available at www.no-patents-on-seeds.org/.

14 Helfer, L.R., ‘Regime Shifting: The TRIPS Agreement and New Dynamics of International Intellectual Property Lawmaking’, (2004) 29 Yale Journal of International Law, at 33.

15 Linarelli, J., ‘TRIPS, Biotechnology and the Public Domain: What Role Will World Trade Law Play?’, in Cardwell, M.N., Grossman, M.R., and Rodgers, C.P. (eds.), Agriculture and International Trade: Law, Policy, and the WTO (2003), at 197.

16 The first paragraph of the Preamble to the TRIPS Agreement reads as follows: ‘Desiring to reduce distortions and impediments to international trade, and taking into account the need to promote effective and adequate protection of intellectual property rights, and to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade’.

17 2015 Paris Agreement, adopted at 21st session of the Conference of the Parties, FCCC/CP/2015/L.9/Rev.1.

18 J.R. Porter et al., ‘Food Security and Food Production Systems’, in Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (2013), at 485–533.

19 Ibid., at 490.

20 Ibid., Figure 7.2: ‘Summary of estimates of the impact of recent climate trends on yields for four major crops’ (at 492); Figure 7.5: ‘Summary of projected changes in crop yields, due to climate change over the 21st century’ (at 504); Figure 7.7: ‘Boxplot summary of studies that quantify impact of climate and CO2 changes on crop yields, including historical and projected impacts, mean and variability of yields, and for all available crops in temperate and tropical regions’ (at 506); Box 7.1: ‘Projected Impacts for Crops and Livestock in Global Regions and Sub-Regions under Future Scenarios’ (at 509–12).

21 The words ‘technology’, ‘technologies’ or ‘technological’ are used 21 times in the text of the UNFCCC. In the Paris Agreement, the Preamble takes account of least developed countries and emphasizes the importance of funding and transfer of technologies; Art. 6(8) refers to technology transfer and capacity-building as part of the (I)NDCs; Art. 10 is entirely related to technology; and Art. 11(1) links technology transfer to capacity building for least development countries.

22 Intergovernmental Panel on Climate Change, Methodological and Technological Issues in Technology Transfer, Special Report prepared by Working Group III of the Intergovernmental Panel on Climate Change (edited by B. Metz et al., 2000). A section in Ch. 11 on agriculture is entitled: ‘Genetic Improvements Critical to Climate Adaptation’.

23 R.J.T. Klein et al., Application of Environmentally Sound Technologies for Adaptation to Climate Change, FCCC/TP/2006/2’, FCCC Technical Papers (10 May 2006). This paper explicitly names ‘genetically modified organisms’ and ‘drought-resistant seeds’ as options in a range of agricultural biotechnologies that can contribute to adaptation, at para. 58 and para. 55, respectively.

24 UNFCCC, ‘NAPAs Received by the Secretariat’, available at unfccc.int/adaptation/workstreams/national_adaptation_programmes_of_action/items/4585.php.

25 United Nations Environment Programme, National Environmental Protection Agency, Afghanistan, and Global Environmental Facility, Final Joint Report on ‘Afghanistan: National Capacity Needs Self-Assessment for Global Environmental Management (NCSA) and National Adaptation Programme of Action for Climate Change (NAPA)’, February 2009, at 34, available at unfccc.int/resource/docs/napa/afg01.pdf.

26 Republic of Malawi, Ministry of Mines, Natural Resources and Environment, Environmental Affairs Department ‘Malawi's National Adaptation Programmes of Action (NAPA)’, March 2006, 3, available at unfccc.int/resource/docs/napa/mwi01.pdf. This is listed third on a list of 15 adaptation options, ranked in terms of priority.

27 Ministry of Tourism Environment and Natural Resources of the Republic of Zambia, ‘Formulation of the National Adaptation Programme of Action on Climate Change’, September 2007, 20, available at unfccc.int/resource/docs/napa/zmb01.pdf.

28 UNFCCC, ‘INDCS and Technology: A synthesis of technology issues contained in intended nationally determined contributions’, 27 April 2016, available at unfccc.int/ttclear/misc_/StaticFiles/gnwoerk_static/HOME_infobox_2/a61f9f4b94704dd78f06b2bc7cd0b547/f7bbe982812a469db476fd4917714813.pdf. The Conference of the Parties to the UNFCCC by its Decision 1/CP.20 requested the submitted (I)NDCs to be published online. They are available at www4.unfccc.int/submissions/indc/Submission%20Pages/submissions.aspx.

29 For instance, the (I)NDCs of Uzbekistan, Benin, and Moldova explicitly mention the use of agricultural biotechnology to develop crops resilient to the impacts of climate change. ‘Intended Nationally Determined Contributions of the Republic of Uzbekistan (INDC)’, at 5: ‘development of biotechnologies and breeding new crop varieties adapted to conditions of changing climate’, available at, www4.unfccc.int/Submissions/INDC/Published%20Documents/Uzbekistan/1/INDC%20Uzbekistan%2018-04-2017_Eng_20170419093154_171926.pdf; République du Bénin, Ministère de l'Environnement Chargé de la Gestion des Changements Climatiques du Reboisement et de la Protection des Ressources Naturelles Forestières, ‘Contribution Prevues Determinées au Niveau National (CPDN)’, at 14: ‘semences ou variétés culturales adaptées au contexte de climat modifié, biotechnologie agricole’, available at, www4.unfccc.int/submissions/INDC/Published%20Documents/Benin/1/INDC%20BENIN%20%20Version%20finale%20revue%20septembre%202015.pdf; Government of the Republic of Moldova, ‘Republic of Moldova's Intended National Determined Contribution’, at 17: ‘crops adaptation by using the existing genetic diversity and new opportunities provided by biotechnology’, available at, www4.unfccc.int/ndcregistry/PublishedDocuments/Republic%20of%20Moldova%20First/INDC_Republic_of_Moldova_25.09.2015.pdf.

30 ‘Nairobi Work Programme on Impacts, Vulnerability and Adaptation to Climate Change (NWP)’, available at, www3.unfccc.int/pls/apex/f?p=333:1:543895928838350.

31 For a more detailed discussion of how international climate change adaptation law promotes the use of technologies and private sector engagement, see Saab, A., ‘Climate-Resilient Crops and International Climate Change Adaptation Law’, (2016) 29 Leiden Journal of International Law 2.

32 Friedmann, H. and McMichael, P., ‘Agriculture and the State System: The Rise and Fall of National Agricultures, 1870 to the Present’, (1989) 29 Sociologia Ruralis 93. See also Friedmann, H., ‘The Political Economy of Food: the Rise and Fall of the Postwar International Food Order’, (1982) 88 American Journal of Sociology S248.

33 McMichael, P., ‘A Food Regime Genealogy’, (2009) 36 Journal of Peasant Studies 139, at 139.

34 This renewed interest is evident in a special ‘Agriculture, Food and Human Values’ symposium organized in Canada in 2007. Discussions during this symposium centred on food regime analysis, and culminated in a special issue of ‘Agriculture and Human Values’ in 2009 about food regime analysis. See Campbell, H. and Dixon, J., ‘Introduction to the Special Symposium: Reflecting on Twenty Years of the Food Regimes Approach in Agri-Food Studies’, (2009) 26 Agriculture and Human Values 261. More recently, see the published articles by Bernstein, H., McMichael, P., and Friedmann, H. as part of a ‘Bernstein-McMichael-Friedmann Dialogue on Food Regime’, (2016) 43 (3) Journal of Peasant Studies.

35 Friedmann, H., ‘From Colonialism to Green Capitalism: Social Movements and Emergence of Food Regimes’, in Buttel, F.H. and McMichael, P. (eds.) New Directions in the Sociology of Global Development (2005), at 241–3.

36 Pritchard, B., ‘Food Regimes’, in Kitchin, R. and Thrift, N. (eds.) The International Encyclopedia of Human Geography, (2009), at 8.

37 See McMichael, P. and Friedmann, H., ‘Situating the ‘Retailing Revolution’, in Burch, D. and Lawrence, G. (eds.) Supermarkets and Agrofood Supply Chains: Transformations in the Production and Consumption of Foods (2007), at 295–6.

38 Pechlaner, G. and Otero, G., ‘The Third Food Regime: Neoliberal Globalism and Agricultural Biotechnology in North America’, (2008) 48 Sociologica Ruralis 351, at 366. Other labels are ‘corporate food regime’ and ‘corporate-environmental food regime’. See, respectively, McMichael, P., ‘Global Development and the Corporate Food Regime’, in Buttel, F.H. and McMichael, P. (eds.) New Directions in the Sociology of Global Development (2005); Friedmann, supra note 35. There are debates about whether a third food regime has been established or whether the lineaments of a third food regime are still emerging. These debates will not be addressed in this article. Whether or not a third food regime is established or still emerging, its dominant (neoliberal) features remain the same.

39 D. Harvey, A Brief History of Neoliberalism (2007), at 2.

40 P. McMichael, ‘Historicizing Food Sovereignty: A Food Regime Perspective’, paper presented at the conference Food Sovereignty: A Critical Dialogue Conference (International Conference Yale University, 14–15 September 2013, paper #13), at 1.

41 Edelman, M., ‘Food Sovereignty: Forgotten Genealogies and Future Regulatory Challenges’, (2014) 41 Journal of Peasant Studies 6.

42 La Via Campesina, ‘The International Peasant's Voice’, available at viacampesina.org/en/international-peasants-voice.

43 Patel, R., ‘Food Sovereignty’, (2009) 36 The Journal of Peasant Studies 3, at 663.

44 UN General Assembly, Universal Declaration of Human Rights (UDHR) (10 December 1948).

45 UN General Assembly Resolution 2200A, International Covenant on Economic, Social and Cultural Rights (ICESCR) (3 January 1976).

46 Kloppenburg, J. Jr. and Kleinman, D.L., ‘Seed Wars: Common Heritage, Private Property, and Political Strategy’, (1987) 95 Socialist Review 7; K. Aoki, Seed Wars: Controversies and Cases on Plant Genetic Resources and Intellectual Property (2008).

47 Borowiak, C., ‘Farmers’ Rights: Intellectual Property Regimes and the Struggle over Seeds’, (2004) 32 Politics & Society 511, at 511.

48 Marglin, S.A., ‘Farmers, Seedsmen, and Scientists: Systems of Agriculture and Systems of Knowledge’, in Apffel-Marglin, F. and Marglin, S.A. (eds.) Decolonizing Knowledge: From Development to Dialogue (1996), at 204.

49 2001 International Treaty on Plant Genetic Resources for Food and Agriculture, Food and Agriculture Organization (entry into force 29 June 2004), Art. 9.

50 See UN Human Rights Council, Resolution 7/23: Human Rights and Climate Change (28 March 2008); Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship between Climate Change and Human Rights, A/HRC/10/61 (15 January 2009); UN Human Rights Council, Resolution 10/4: Human Rights and Climate Change (25 March 2009); Human Rights Council Resolution 29/15 ‘Human Rights and Climate Change’, A/HRC/RES/29/15 (July 2015).

51 Preamble Paris Agreement: ‘Acknowledging that climate change is a common concern of humankind, Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights . . .’. See also Mayer, B., ‘Human Rights in the Paris Agreement’ (2016) 6 Climate Law 109.

52 The previous UN Special Rapporteur on the right to food, Olivier de Schutter, has been particularly influential in putting the right to food high on the international agenda and linking the right to food to climate change. See, for a selection of De Schutter's work, www.srfood.org/en/climate-change-2.

53 E. Caesens and M. Padilla Rodriguez, ‘Climate Change and the Right to Food: A Comprehensive Study’, in Heinrich Boll Stiftung Publication Series on Ecology, Vol. 8 (2009).

54 Ibid., at 41–2: The authors of this report, under the supervision of Olivier De Schutter, promote ‘the added value of a human rights perspective’ and ‘applying a rights-based approach to the right to food in the context of climate change’.

55 Pritchard, B., ‘The Long Hangover from the Second Food Regime: A World-Historical Interpretation of the Collapse of the WTO Doha Round’, (2009) 26 Agriculture and Human Values 297, at 299.

56 I. Wallerstein. The Modern World System I: Capitalist Agriculture and the Origins of the European World-Economy in the Sixteenth Century (1974); Wallerstein, I.. ‘A World‐System Perspective on the Social Sciences’, (2010) 61 The British Journal of Sociology 167.

57 Pritchard, supra note 55, at 299.

58 R. Brenner and M. Glick. ‘The Regulation Approach: Theory and History’ (1991) I/188 New Left Review 45.

59 Pritchard, supra note 55, at 299.

60 Margulis, M.E., ‘The Regime Complex for Food Security: Implications for the Global Hunger Challenge’, (2012) 19 Global Governance 53.

61 R.O. Keohane and D.G. Victor, ‘The Regime Complex for Climate Change’, Discussion Paper 2010-33, Cambridge, MA: Harvard Project on International Climate Agreements, January 2010. See also Raustiala, K. and Victor, D.G., ‘The Regime Complex for Plant Genetic Resources’, (2014) 58 International Organization 2.

62 See the discussion between Pascal Lamy, former Director-General of the WTO, and Olivier de Schutter, former Special Rapporteur on the Right to Food, set out by Fakhri, supra note 7, at 68–70.

63 Margulis, supra note 60, at 59–60.

64 Orford, supra note 2, at 10.

65 Ibid., at 11. See also Thompson, J. and Scoones, I., ‘Addressing the Dynamics of Agri-Food Systems: An Emerging Agenda for Social Science Research’ (2009) 12 Environmental Science & Policy 386, at 389.

66 A.K. Sen, Poverty and Famines: An Essay on Entitlement and Deprivation (1981), at 1: ‘starvation is the characteristic of some people not having enough to eat. It is not the characteristic of there being not enough food to eat’.

67 Margulis, supra note 60, at 65.

* Assistant Professor of International Law, Graduate Institute of International and Development Studies, Geneva [].

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