FROM THE GROUND UP: AN ANALYSIS

OF THE INTERNATIONAL REGULATION OF

AGRICULTURE USING A RIGHTS-BASED
APPROACH TO FOOD SECURITY

Hope Nadine Johnson

BA LLB (Hons)

Principal Supervisor:
Dr Rowena Maguire

Associate Supervisors:
Dr Bridget Lewis
Dr Felicity Deane
Professor Reece Walters

Submitted in fulfilment of the requirements for the degree of

Doctor of Philosophy

School of Law

Faculty of Law
Queensland University of Technology
Institute for Future Environments
2016
 Keywords

Public International Law; Public International Regulation; Agriculture; Food

Production; Food Security; Human Rights; Sustainable Development; International
Environmental Law; International Economic Law; Food Law; Food Regulation;
Agricultural Law; Agroecology
 Abstract

In the last decade, recurrent food price crises revealed the inadequacy of global
food and agricultural governance. Most stakeholders agree that the governance
arrangements for food and agriculture need to be improved if humanity is going to
overcome the persistent and emerging challenges facing world food security.
Currently, disparate norms, regulations and institutional frameworks intersect with
agriculture and influence the contributions agriculture makes to food security. This
thesis aims to bring clarity and direction to one part of the global governance
arrangements of food and agriculture. Accordingly, this thesis provides the first
systematic analysis of the regulatory instruments that intersect with agriculture,
which no other research, legal or otherwise, has provided to date. In order to analyse
the regulatory framework, this thesis develops a rights-based approach to food
security as a way to mobilise the intrinsic values that should underpin the
international regulation of agriculture. In doing so, this thesis formulates criteria to
operationalise a rights-based approach to food security in the context of international
agricultural law and regulation.
 Table of Contents

Keywords .................................................................................................................................. i 
Abstract .................................................................................................................................... ii 
Table of Contents .................................................................................................................... iii 
List of Figures ........................................................................................................................ vii 
List of Tables ........................................................................................................................ viii 
List of Abbreviations .............................................................................................................. ix 
Statement of Original Authorship ........................................................................................... xi 
Acknowledgements ................................................................................................................ xii 
Chapter 1:  Introduction ...................................................................................... 1 
1.1  Overview of research ......................................................................................................1 
1.2  Research questions .........................................................................................................6 
1.3  Methodology ...................................................................................................................7 
1.3.1  Policy-Oriented Approach ....................................................................................7 
1.3.2  Method .................................................................................................................8 
1.3.3  Rationale for International Focus .......................................................................13 
1.4  Significance ..................................................................................................................14 
1.5  Terminology .................................................................................................................16 
1.5.1  Food Security .....................................................................................................16 
1.5.2  Food Insecurity ...................................................................................................20 
1.5.3  Developed and Developing States ......................................................................21 
1.5.4  Agriculture and Small-Scale Farming ................................................................22 
1.6  Brief Synopsis...............................................................................................................24 
Chapter 2:  Global Governance of Food ........................................................... 26 
2.1  Overview ......................................................................................................................26 
2.2  Issues and Challenges for Food Security and Agriculture ............................................26 
2.3  International Context ....................................................................................................31 
2.3.1  International Food and Agriculture before the 20th Century .............................31 
2.3.2  Structural Changes to Food and Agriculture in the 20th Century ......................32 
2.3.3  International Food and Agriculture in the 21st Century .....................................34 
2.3.4  Public International Institutions in the Global Governance of Food and
Agriculture..........................................................................................................38 
2.4  Agricultural policy for Food Security: Dominant and Alternative frames ...................44 
2.4.1  Dominant Frame - Industrial Agriculture ...........................................................44 
2.4.2  Alternative Frames: Food Sovereignty and Agroecology ..................................50 
2.4.3  Scientific and International Institutional Support for Agroecology ...................57 
2.4.4  Regulatory Approaches ......................................................................................60 
2.4.5  Working Beyond the Two Approaches ..............................................................61
Chapter 3:  A Rights-Based Approach to Food Security as the Normative
Basis 66 
3.1  Overview ...................................................................................................................... 66 
3.2  Human Rights: An Overview ....................................................................................... 67 
3.2.1  Human Rights Law ............................................................................................ 67 
3.2.2  A Rights-Based Approach ................................................................................. 69 
3.2.3  Human Rights Obligations owed by States ....................................................... 70 
3.2.4  Non-State Actors and Human Rights Obligations ............................................. 73 
3.3  The Value of a Rights-Based Approach to Food Security ........................................... 75 
3.3.1  Contribution of a Rights-Based Approach to Food Security ............................. 76 
3.3.2  Critiques of Rights-Based Approaches .............................................................. 86 
3.4  Conceptualising the Environmental Dimensions of a Rights-Based Approach to Food
Security .................................................................................................................................. 90 
3.4.1  Mutually Reinforcing......................................................................................... 92 
3.4.2  Intergenerational Application ............................................................................ 95 
3.4.3  Sustainability and Security ................................................................................ 96 
3.5  Criteria for a Rights-Based Approach to Food Security .............................................. 97 
3.5.1  Summary ............................................................................................................ 97 
3.5.2  Reconciling Dominant and Alternative Frames................................................. 97 
3.5.3  Broad Components of a Rights-Based Approach to Food Security and
Proposed Criteria for Evaluating Agricultural Law ........................................... 98 
Chapter 4:  Land ............................................................................................... 103 
4.1  Overview .................................................................................................................... 103 
4.2  Land Tenure and a Rights-Based Approach to Food Security ................................... 103 
4.2.1  Defining Land Tenure Security ....................................................................... 104 
4.2.2  Links between Land Tenure and Food Security .............................................. 104 
4.2.3  A Rights-Based Approach to Food Security in the Context of Land
Tenure .............................................................................................................. 106 
4.2.4  Approaches to Secure Land Tenure ................................................................. 107 
4.3  International Human Rights law and Land Tenure .................................................... 113 
4.3.1  The Human Right to Land ............................................................................... 113 
4.3.2  Human Rights, Land Tenure and Marginalised Groups .................................. 115 
4.4  Implementation .......................................................................................................... 129 
4.5  Foreign Direct Investment in Land: Large-Scale Agricultural Land Investments ..... 131 
4.5.1  Large-Scale Agricultural Land Investments and Food Security ...................... 132 
4.5.2  International Regulation of Large-Scale Land Investments involving
Foreign Actors ................................................................................................. 139 
4.5.3  Non-Binding Instruments ................................................................................ 144 
4.6  Conclusion ................................................................................................................. 156 
Chapter 5:  Soil .................................................................................................. 158 
5.1  Overview .................................................................................................................... 158 
5.2  Soil and Land Use: Degradation, Mitigation and Restoration ................................... 159 
5.2.1  Soil Degradation and Sustainable Soil Management ....................................... 160 
5.2.2  Sustainable Soil Management and a Rights-Based Approach to Food
Security ............................................................................................................ 163 
5.3  Legally-Binding International Framework for Land Use and Soils ........................... 164 
5.3.1  Legal and Institutional Framework .................................................................. 164 
 5.3.2  The United Nations Convention to Combat Desertification ............................167 
5.3.3  The Climate Change Regime............................................................................175 
5.4  Non-Binding ...............................................................................................................192 
5.4.1  ‘4 per 1000’ Initiative .......................................................................................192 
5.4.2  Other Non-Binding instruments .......................................................................194 
5.5  Conclusion ..................................................................................................................197 
Chapter 6:  Water ............................................................................................. 199 
6.1  Overview ....................................................................................................................199 
6.2  Fresh Water and Food Security: Challenges, Opportunities and Rights ....................200 
6.2.1  Fresh Water and Agriculture ............................................................................200 
6.2.2  Water Scarcity in the Context of Food Security and Agriculture.....................202 
6.2.3  Rights-Based Approach to Food Security in the Context of Fresh Water
Issues ................................................................................................................207 
6.3  Regulation of Fresh Water at the international level ..................................................213 
6.3.1  International Water Law ...................................................................................213 
6.3.2  1997 UN Convention on the Law of the Non-Navigational Uses of
International Watercourses ...............................................................................219 
6.3.3  The Convention on the Protection and Use of Transboundary
Watercourses and International Lakes..............................................................231 
6.4  Conclusion ..................................................................................................................243 
Chapter 7:  Seeds .............................................................................................. 245 
7.1  Overview ....................................................................................................................245 
7.2  Seeds and a Rights-Based Approach to Food Security...............................................246 
7.2.1  Plant Genetic Resources for Food and Agriculture ..........................................246 
7.2.2  Seed Systems and Property Rights ...................................................................248 
7.2.3  Plant Genetic Resources for Food and Agriculture and Rights-Based
Approaches to Food Security ...........................................................................263 
7.3  International Regulation of Plant Genetic Resources for food and agriculture ..........265 
7.3.1  International Intellectual Property Agreements ................................................266 
7.3.2  Access to and Benefit Sharing from Genetic Resources ..................................273 
7.4  Conclusion ..................................................................................................................290 
Chapter 8:  Pesticides ....................................................................................... 291 
8.1  Overview ....................................................................................................................291 
8.2  Pesticides and a Rights-Based Approach to Food Security ........................................292 
8.2.1  Definition and Categories of Pesticides ...........................................................292 
8.2.2  Pesticides and Food Security ............................................................................293 
8.2.3  Rights-Based Approach to Food Security and the Regulation of Pesticides ....300 
8.3  International Regulation of Pesticides ........................................................................302 
8.3.1  World Trade Regime: Maximum Residue Levels ............................................303 
8.3.2  International Labour Standards ........................................................................313 
8.3.3  International Code of Conduct on the Distribution and Use of Pesticides .......324 
8.3.4  International Chemical Law Regime ................................................................333 
8.4  Conclusion ..................................................................................................................339
Chapter 9:  Trade .............................................................................................. 341 
9.1  Overview .................................................................................................................... 341 
9.2  Agricultural Trade Liberalisation and a Rights-Based Approach to Food Security .. 342 
9.2.1  Neoliberal Understandings of the Connection Between Agricultural Trade
Liberalisation and a Rights-Based Approach to Food Security ....................... 342 
9.2.2  Agricultural Trade Liberalisation from the Perspective of a Rights-Based
Approach to Food Security .............................................................................. 344 
9.2.3  Rights-Based Approach to Agricultural Trade ................................................ 352 
9.3  The Agreement on Agriculture .................................................................................. 353 
9.3.1  Brief Background to the Agreement on Agriculture........................................ 353 
9.3.2  The Preamble to the Agreement on Agriculture .............................................. 357 
9.3.3  Special and Differential Treatment Provisions in the Agreement on
Agriculture ....................................................................................................... 360 
9.4  Agreement on agriculture’s Substantive Provisions: Impact and Design .................. 362 
9.5  Agreement on Agriculture, a Rights-Based Approach to Food Security and reform
recommendations ................................................................................................................. 383 
9.5.1  Failure to Address Pre-Existing Inequalities ................................................... 384 
9.5.2  Facilitates Industrial Agriculture Models ........................................................ 390 
9.5.3  States’ Ability to Take Rights-Based Food Security Measures ....................... 392 
9.5.4  Effect of Corporate Concentration ................................................................... 394 
9.6  Conclusion ................................................................................................................. 399 
Chapter 10:  Conclusion and Recommendations ............................................. 402 
10.1  Overview .................................................................................................................... 402 
10.2  Rights-Based Approach to Food Security .................................................................. 402 
10.3  International Framework for Agriculture ................................................................... 403 
10.4  Contribution of the international regulatory framework for Agriculture to a Rights-
Based Approach to Food Security ........................................................................................ 406 
10.4.1 Objectives and Provisions that are Directly Compatible with the
Realisation of Human Rights and Food Security in the Context of
Agriculture ....................................................................................................... 406 
10.4.2 Special Treatment, Support and Protections for: (a) Currently Food
Insecure Groups and Countries, and (b) Groups and Countries Most
Vulnerable to Food Insecurity. ........................................................................ 409 
10.4.3 Procedures in the Design, Negotiation and Implementation of the
Instruments That Reflect Human Rights Principles......................................... 410 
10.4.4 Mechanisms, Instruments and Provisions That Promote the Sustainable
Use of Natural Resources, Biodiversity and the Maintenance of
Ecosystem Services Relied Upon for Agriculture ........................................... 411 
10.5  Reform Recommendations......................................................................................... 412 
10.6  Future Research Directions ........................................................................................ 419 
Reference List ......................................................................................................... 420 
 List of Figures

Figure 1.1 Structure of Thesis ...................................................................................... 5 

Figure 1.2 Water-Food-Energy Security Nexus - World Economic Forum .............. 18 
Figure 2.1 Agroecological practices summarised by Silici ........................................ 57 
Figure 3.1 Relationship between ultimate components of a RBA to FS and the
criteria established for evaluating whether an instrument is consistent
with a RBA to FS in the context of agriculture ........................................... 99 
Figure 7.1 Informal (Local) and Formal Seed Systems by Almekinders and de
Boef (2000) ................................................................................................ 252 
 List of Tables

Table 2.1 Summary of Issues and Challenges facing Food and Agriculture ............. 29 
Table 2.2 Comparison of agroecology to other concepts ........................................... 55 
Table 3.1 Human Rights Principles ............................................................................ 78 
Table 4.1 Comparison of Land Right Provisions in UNDRIP and Convention
169 .............................................................................................................. 119 
Table 5.1 Unsustainable and Sustainable Soil Management Practices .................... 163 
Table 5.2 Non-Binding Instruments Regulating Land Use and Soil ........................ 196 
Table 6.1 Summary of non-binding instruments regarding water management
and relevant provisions for food security ................................................... 217 
Table 9.1 Valdés and Foster – Net Food-Importing Developing Countries: Who
They Are, and Policy Options for Global Price Volatility ......................... 356 
Table 10.1 Reform Recommendation....................................................................... 417 
 List of Abbreviations

ADI: Acceptable Daily Intake

AoA: Agreement on Agriculture

CBD: United Nations Convention on Biological Diversity

CDM: Clean Development Mechanism

CCPR: Codex Committee on Pesticide Residues

CESCR: Committee on Economic, Social and Cultural Rights

CFS: Committee on World Food Security

FAO: Food and Agriculture Organization of the United Nations

EU: European Union

FDI: Foreign Direct Investment

G20: Group of 19 countries and the European Union

GHGs: Greenhouse Gases

GHS: Globally harmonised system of hazard classification, safety data sheets and
labelling

GM: Genetically modified

IFAD: International Fund for Agricultural Development

ILCs: Indigenous or Local Communities

ILO: International Labour Organization

IP: Intellectual Property

IPM: Integrated Pest Management

IPRs: Intellectual Property Rights

JMPR: Joint FAO/WHO Meeting on Pesticide Residues

LSALIs: Large-Scale Agricultural Land Investments

MRLs: Maximum Pesticide Residue Limits

NGOs: Non-governmental organisations

OECD: Organisation for Economic Co-operation and Development

OHCHR: The Office of the United Nations High Commissioner for Human Rights

PRAI: Principles of Responsible Agricultural Investment

RBA: Human Rights-Based Approach

RBA to FS: Rights-Based Approach to Food Security

SAPs: Structural Adjustment Programs

SPS Agreement: Sanitary and Phytosanitary Agreement

TNCs: Transnational Corporations

TRIPS: Trade-related Intellectual Property Rights

UDHR: Universal Declaration of Human Rights

UN: United Nations

UNEP: United Nations Environment Programme

UNDP: United Nations Development Program

UNDRIP: United Nations Declaration on the Rights of Indigenous Peoples

UNCCD: United Nations Convention to Combat Desertification

UNFCCC: United Nations Framework Convention on Climate Change

UNESCO: United Nations Educational, Scientific and Cultural Organization

UNWC: United Nations Watercourse Convention

US: United States of America

WFP: World Food Programme

WHO: World Health Organization

WTO: World Trade Organization

 Statement of Original Authorship

Under the Copyright Act 1968, this thesis must be used only under the normal
conditions of scholarly fair dealing. In particular no results or conclusions should be
extracted from it, nor should it be copied or closely paraphrased in whole or in part
without the written consent of the author. Proper written acknowledgement should be
made for any assistance obtained from this thesis.

The work contained in this thesis has not been previously submitted to meet
requirements for an award at this or any other higher education institution. To the
best of my knowledge and belief, the thesis contains no material previously
published or written by another person except where due reference is made.

Signature: QUT Verified Signature

Date: 21/09/2016
 Acknowledgements

This thesis has been an incredibly enriching experience for me. Many people have
contributed to its completion. First and foremost I wish to thank my principal
supervisor and mentor Dr. Rowena Maguire. Rowena has continued to inspire me
since I met her as an undergraduate student, and she is an outstanding role model of a
leader, activist and an academic. I am grateful for the support of Professor Reece
Walters who has given me many wonderful opportunities, laughs and guidance. I am
also thankful to my associate supervisors Dr. Bridget Lewis and Dr. Felicity Deane
for their encouragement and advice.

Everyday, I am thankful that I sent a fan-girl email to Professor Christine Parker and
Dr. Carol Richards, who have been my fair food colleagues, mentors and friends. In
particular, I wish to thank Christine for her contribution to my final seminar, which
shaped the final stages of my thesis, and for sharing of opportunities with a rookie
academic.

For their informal supervision, mentoring and most importantly friendship

throughout the PhD process, I am deeply grateful to Dr. Nic Suzor, Dr. Kylie
Pappalado and Liz Rowe. Additionally, I would like to thank professional editor,
Kylie Morris, who provided copyediting and proofreading services, according
university-endorsed guidelines and the Australian Standards for editing research
theses. I was also very lucky to have editing assistance and career guidance from the
generous Professor Tom Cochrane.

I would like to thank my Mum and best friend, Vicki Johnson, who taught me how to
write, how to think critically, how to be passionate and loving and who ignited my
gratitude and awe for nature. For his loving support, I would like to thank my Dad
and farmers-market-buddy, Rick Care, who enabled me to attend university. Thank
you to my Grandma, Doris Johnson, who passed away while I was in the final stages
of my thesis, and who always gave me profound love, encouragement and
understanding that I can still feel, as well as the mantra ‘you can only do what you
can do’. Also, a thank you to my friends, Candice Anderson and Kimbereley de
Looze who were always the light at the end of the tunnel of intense thesis mode and
continue to inspire me through their own career paths and choices, as well as my
sister Chloe Johnson who helped me relax by watching trashy TV shows at the end
of the day and just generally was strongly supportive and lovely. Lastly, I would like
to thank my amaze boyfriend, Hayden McNamara, for so many things - not the least
of which include making me dinner after another late night at QUT when I’d come
home hangry and exhausted. He has been a bright spark, a sounding board and an
unwavering supporter throughout my research.
 Introduction

1.1 OVERVIEW OF RESEARCH

This thesis is a policy-oriented, legal analysis of the global governance

arrangements influencing food and agriculture. There is general consensus that the
existing international regulatory framework concerning food and agriculture is
inconsistent, unclear and ineffective, with overlapping norms and rules. In order to
bring clarity and direction to one part of the global governance of food and
agriculture, this thesis provides a systematic analysis of the public international
regulatory instruments that intersect with each element involved in the production of
food. This analysis entails comparing the regulatory intersections with agriculture
against a rights-based approach to food security, which is employed and developed in
this research as a vehicle for operationalising the values that should ground global
food and agricultural governance. As a result, this thesis makes two significant
contributions to existing scholarship. Firstly, it provides the only systematic
overview to date of the regulatory instruments that intersect with agriculture.
Secondly, it identifies the values that should underpin international instruments that
intersect with food and agriculture and uses a rights-based approach as a way to
implement and structure these values.

The term agriculture is value-neutral in the sense that it does not require a
certain standard or outcome. Agriculture is defined as the ‘[c]ultivation of crops and
animal husbandry as well as forestry, fisheries, and the development of land and
water resources’.1 Likewise, food is a value-neutral term and means ‘[a]ny substance,
whether processed, semi-processed or raw, which is intended for human
consumption’, but does not encompass substances used only as drugs or cosmetics.2
In order to evaluate agriculture and food issues, as well as relevant regulatory

1
Douglas McConnell and John Dillon, ‘Farm Management for Asia: A Systems Approach’ (13, Food
and Agriculture Organisation of the United Nations, 1997) 1.1
<http://www.fao.org/docrep/w7365e/w7365e00.htm#Contents>.
2
Codex Alimentarius Commission, Codex Alimentarius Procedural Manual, 24th ed. (Joint
FAO/WHO Food Standards Programme 2016) 23.
responses, a wide range of value-laden concepts are used by scholars, institutional
institutions and non-governmental organisations.

At the international and national level, food security is the predominant policy
concept and objective. It holds that agriculture should contribute in the short and
long-term to all people having physical and economic access to adequate food that
meets their nutritional needs. Hence, improving food security at global, national and
individual levels is consistent with widely-held intrinsic values concerning human
survival and well-being. While food security is positioned as the end goal of
regulatory interventions into agriculture, this thesis proposes that agriculture should
be regulated in a manner consistent with a human rights-based approach if food
security is to be achieved. A rights-based approach enriches the concept of food
security and guides regulatory interventions in ways that contribute to the outcome of
food security. Accordingly, this research examines international agriculture law,
while ultimately focusing on how to regulate agriculture in a manner consistent with
a rights-based approach to achieve the outcome of food security.3

Agriculture is an economic sector and human activity that substantially

contributes to the state of food security at the individual through to the global scale.
Agriculture determines the amount of food that can be consumed, generates income
that allows people and countries to purchase food, and influences the nutritional
qualities and types of food available. It is the dominant sector in many developing
countries and plays a large role in the economy of numerous developed countries.4
Thus, agriculture contributes to domestic revenue, which in turn can fund services
and programs that improve food security. Furthermore, it is widely recognised that
involvement in agriculture is one of the main ways to empower poor women in
developing countries.5 Despite its significance to food security outcomes, agriculture

3
See, eg, ‘Agriculture and Nutrition: A Common Future’ (European Commission; Food and
Agriculture Organization of the United Nations; Technical Centre for Agricultural and Rural
Cooperation; World Bank Group, 2014) 7 <http://www.fao.org/3/a-at709e.pdf>.
4
Stephen Simpson, Top Agricultural Producing Countries (15 June 2012) Investopedia
<http://www.investopedia.com/financial-edge/0712/top-agricultural-producing-countries.aspx>;
‘Towards Human Resilience: Sustaining MDG Progress in an Age of Economic Uncertainty’ (United
Nations Development Program, September 2011)
<http://www.undp.org/content/dam/undp/library/Poverty%20Reduction/Towards_SustainingMDG_W
eb1005.pdf>.
5
See, eg, Women and Sustainable Food Security (1996) Food and Agriculture Organisation
<http://www.fao.org/sd/fsdirect/fbdirect/fsp001.htm>.
faces two interrelated challenges that undermine the sector’s ability to progress food
security in the short and long term.

The first challenge concerns the supply side, that is, agriculture’s ability to
produce enough food in the future to feed everyone. The prevalence of unsustainable
agricultural models has undermined long-term food security. Industrial agricultural
models contribute to the greatest challenges facing food security, including climate
change; water scarcity; dependence on non-renewable energy sources; large-scale
biodiversity loss; soil fertility loss; and pollution across air, water and soil.6
Meanwhile population growth, combined with global demographic trends (eg
urbanisation and shifts in diets) threatens the ability of agriculture to meet future
food needs.

The second challenge concerns the prevention of malnutrition, which requires

access to and the production of adequate, diverse and culturally appropriate food. An
estimated 1.9 billion adults and 42 million children are overweight or obese, over
two billion people are micronutrient deficient (eg iron deficient)7 and the number of
chronically undernourished people (deficient in proteins/fats/carbohydrates) has
ranged over the last five years from 750 million to 925 million people.8 Agriculture
contributes to nutrition by producing diverse, nutritious foods. Accordingly,

6
For a useful overview of food system issues, see eg, Daniele Giovannucci et al, ‘Food and
Agriculture: The Future of Sustainability’ (A strategic input to the Sustainable Development in the
21st Century (SD21) project, Division for Sustainable Development of the United Nations Department
of Economic and Social Affairs, 2012) iv–vi
<http://www.un.org/esa/dsd/dsd_sd21st/21_pdf/agriculture_and_food_the_future_of_sustainability_w
eb.pdf>.
7
Micronutrients are, as defined by van Ommen et al, the ‘essential regulators of important metabolic
and physiological processes in humans’. As such, a deficiency in a micronutrient causes specific
illnesses and contributes to the development and severity of chronic illnesses. See, Ben van Ommen et
al, ‘The Micronutrient Genomics Project: A Community-Driven Knowledge Base for Micronutrient
Research’ (2010) 5 Genes & Nutrition 285, 286. Examples of micronutrients include iron, calcium,
magnesium, sodium, zinc, vitamins A, B, C, D, E and K, biotin and folic acid.
8
Obesity and Overweight (January 2015) World Health Organization
<http://www.who.int/mediacentre/factsheets/fs311/en/>; Micronutrient Deficiencies (2015) World
Health Organization <http://www.who.int/nutrition/topics/ida/en/>; Global Hunger Declining, but Still
Unacceptably High: International Hunger Targets Difficult to Reach (September 2010)
<http://www.fao.org/docrep/012/al390e/al390e00.pdf>; ‘The State of Food Insecurity in the World
2012: Economic Growth Is Necessary but Not Sufficient to Accelerate Reduction of Hunger and
Malnutrition’ (Food and Agriculture Organisation; The International Fund for Agricultural
Development; World Food Programme, 2012) 4 <http://www.fao.org/docrep/016/i3027e/i3027e.pdf>;
‘The State of Food Insecurity in the World: The Multiple Dimensions of Food Security’ (Food and
Agriculture Organisation; The International Fund for Agricultural Development; World Food
Programme, 2013) 51.
micronutrient deficiencies causally connect to the loss of biodiversity in agriculture.9
Most of the world’s hungry people live in rural areas of developing countries and
rely on agriculture to produce food for them to consume and/or to generate income.

While seemingly paradoxical, it is now widely acknowledged that obesity in

adults, which is a form of malnutrition referred to as overnutrition, is correlated to
food insecurity.10 Agricultural policies have contributed to the obesity epidemic by
encouraging the over-production of commodity crops (eg wheat, corn) often used in
the production of ultra-processed foods (eg high-fructose corn syrup) instead of fruit
and vegetables.11

International agricultural law is not one body of rules with common features or
objectives.12 Instead, many and various international agreements and standards
intersect with agriculture. Benedetto explained that:

The field of agriculture is of major interest to countries at the economic,

political and security levels. To all appearances, however, this has not led to
the development of a comprehensive and coherent set of international rules,
principles and instruments on the matter, as has been the case in several
other fields.13

9
See, eg, Timothy Johns and Pablo B Eyzaguirre, ‘Linking Biodiversity, Diet and Health in Policy
and Practice’ (2006) 65 The Proceedings of the Nutrition Society 182.
10
Patricia B Crawford and Karen L Webb, ‘Unravelling the Paradox of Concurrent Food Insecurity
and Obesity’ (2011) 40 American Journal of Preventive Medicine 274; Rebecca Ramsey and Danielle
Gallegos, ‘Associations Exist between Food Insecurity, Poor Diet, Chronic Illness and Obesity among
an Australian Population’ (conference at the 16th International Congress of Dietetics, Sydney
Convention & Exhibition Centre, Sydney, NSW, September 2012)
<http://www.emobilise.com.au/icd2012.sessions.2351.app#pre-
20120907_bayside_105_1030_associations_exist_between_food_insecuri>; Brandi Franklin et al,
‘Exploring Mediators of Food Insecurity and Obesity: A Review of Recent Literature’ (2012) 37
Journal of Community Health 253; Hilary K Seligman et al, ‘Food Insecurity Is Associated with
Diabetes Mellitus: Results from the National Health Examination and Nutrition Examination Survey
(NHANES) 1999–2002’ (2007) 22 Journal of General Internal Medicine 1018.
11
See, eg, Joia de Sa and Karen Lock, ‘Will European Agricultural Policy for School Fruit and
Vegetables Improve Public Health? A Review of School Fruit and Vegetable Programmes’ (2008) 18
European Journal of Public Health 558; Per Pinstrup-Andersen, ‘Agricultural Research and Policy for
Better Health and Nutrition in Developing Countries: A Food Systems Approach’ (2007) 37
Agricultural Economics 187; David Wallinga, ‘Agricultural Policy and Childhood Obesity: A Food
Systems and Public Health Commentary’ (2010) 29 Health Affairs (Project Hope) 405.
12
Saverio Di Benedetto, ‘Agriculture and the Environment in International Law: Towards a New
Legal Paradigm’ in Massimo Monteduro et al (eds), Law and Agroecology: A Transdisciplinary
Dialogue (Springer, 2015) 99, 99–102.
13
Ibid 102.
 Given the importance of agriculture to food security, this lack of a clear body
of rules with shared objectives and standards significantly limits the effectiveness
and organisation of the governance and regulatory arrangements for food and
agriculture.14 In response, this thesis maps the existing regulatory framework for
agriculture. It begins with the regulations surrounding the natural resources used to
produce food (land, soil, water), shifts to the instruments that influence how farmers
and farm workers apply skills, knowledge, and inputs (eg seeds and pesticides) and
finally moves to the different dimensions of world trade that influence how
agricultural products are produced and distributed. It analyses these instruments by
considering how they promote or hinder the outcome of food security.

Chapter 9  Chapter 4 
Trade Land

Chapter 8  Chapter 5 
Pesticides Soil

Chapter 7  Chapter 6 
Seeds Water

Figure 1.1 Structure of Thesis

The structure of this thesis was influenced by systems-based and

multidimensional understandings of food security, which have become dominant in
food and agricultural policy and scholarship in recent years. The traditional policy
reaction to food insecurity has been to influence increases in food production without

14
See, eg, Carmen G Gonzalez, ‘The Global Food System, Environmental Protection, and Human
Rights’ (2012) 26 Natural Resources & Environment 7; Joachim von Braun and Nurul Islam, Towards
a New Global Governance System for Agriculture, Food, and Nutrition (1 April 2008) International
Food Policy Research Institute <http://www.ifpri.org/blog/toward-new-global-governance-system-
agriculture-food-and-nutrition>.
adequate attention to distributional inequalities, nutrition or sustainability.15 Since the
1970s, policy makers have gradually added multiple dimensions to the concept of
food security.16 Likewise, stakeholders have increasingly recognised that research,
regulation and policy for food security must reflect a broad food systems approach.17
From this perspective, food systems underpin food security outcomes. Food systems
encompass a range of activities including agriculture, food processing, retail and
consumption, as well as other relevant socioeconomic, political and environmental
factors.18 Furthermore, food systems consider the interactions and feedback loops
between these various factors, activities and their outcomes.

This thesis reflects these multifaceted understandings of food security. To

consider the range of external drivers that interact with agriculture and food security,
this research integrates food security with human rights and environmental norms.
Such an approach allows for the examination of broader socioeconomic and
environmental factors and the interactions between them. Although this thesis is
restricted to one food system activity (agriculture), it was designed as a structured,
methodical examination of the international regulations that intersect with
agricultural systems. Accordingly, it is as systems-based in its design and analysis as
possible within the constraints of the project.

1.2 RESEARCH QUESTIONS

The following research questions were posed:

1. What criteria can be used to determine whether a regulatory instrument

that intersects with agriculture is consistent with a rights-based approach to
achieving food security?

15
John Ingram, From Food Production to Food Security: Developing Interdisciplinary, Regional-
Level Research (Wageningen University, 2011) 32, 110.
16
The evolving understandings of food security are discussed in more detail in part 1.5 of this chapter
where ‘food security’ is defined.
17
Two critical pieces of work on food systems are Polly J Ericksen, ‘Conceptualizing Food Systems
for Global Environmental Change Research’ (2008) 18 Global Environmental Change 234; Diana
Liverman, Polly Ericksen and John Ingram (eds), Governing Food Systems in the Context of Global
Environmental Change (Earthscan Publications Ltd, 2010); For an institutional example, see, ‘Climate
Change and Food Security: A Framework Document’ (Food and Agricultural Organization of the
United Nations, 2008) <http://www.fao.org/forestry/15538-
079b31d45081fe9c3dbc6ff34de4807e4.pdf>.
18
It also considers the interactions and feedback loops between these activities, external drivers and
food security outcomes.
 2. What is the international regulatory framework for agriculture?

3. How does this framework align with a rights-based approach to

progressing food security?

4. How should the regulatory framework be reformed to achieve better

outcomes for food security?

1.3 METHODOLOGY

1.3.1 Policy-Oriented Approach

In order to answer the above research questions, this thesis reflects and adopts
a policy-oriented approach to legal analysis.19 A policy-oriented approach positions
law as a continually evolving, decision-making process that aims to recognise,
promote and ensure commonly shared, intrinsic values.20 Accordingly, the policy-
oriented approach conceives law as an instrument to achieve social goals, including
human dignity and world order in particular.21 Put differently, this approach to legal
analysis recognises that ‘law serves not only as a limit on effective power, but also as
a creative instrument in promoting both order and other values’.22 As part of this
conception of law, a policy-oriented approach to legal analysis examines not only the

19
The seminal work concerning the policy-oriented approach is Myers S McDougal and Harold D
Laswell (1943) ‘Legal Education and Public Policy: Professional Training in the Public Interest’ 52
Yale Law Journal 203. The authors developed the theory further in later publications. See, eg, Myers
S McDougal (1959) ‘The Impact of International Law upon National Law: A Policy-Oriented
Perspective’ 4 South Dakota Law Review 25. Note that McDougal and Laswell, as well as a range of
other authors, refer to the policy-oriented approach as the ‘New Haven School’ or the ‘New Haven
Policy-Oriented Approach’ as a reference to the region in which the intellectual framework was first
established (Yale University in New Haven, US). The approach may involve employing particular
intellectual tasks, as described by McDougal and Laswell, or it can be used as a conception of law.
The latter approach is adopted for this thesis. For a discussion on the broader use of the policy-
oriented approach see, Oona A Hathaway, ‘The Continuing Influence of the New Haven School’
(Faculty Scholarship Series, Paper 835, Yale Law School, 2007)
<http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1857&context=fss_papers>.
20
Siegfried Wiessner and Andrew R Willard (1999) ‘Policy-Oriented Jurisprudence and Human
Rights Abuses in Internal Conflict: Toward a World Public Order of Human Dignity’ 93(2) American
Journal of International Law 316, 319.
21
See, eg, Molly Land, ‘Reflections on the New Haven School’ (2013) 58 New York Law School Law
Review 919, 920; Siegfried Wissner (2007) ‘The New Haven School of Jurisprudence: A Universal
Toolkit for Understanding and Shaping the Law’ 18(1) Asia Pacific Law Review 45.
22
Lung-chu Chen, An Introduction to Contemporary International Law: A Policy-Oriented
Perspective (Oxford University Press, 2015) 14.
substantive rules but also the context surrounding the formation and implementation
of the rules.23

1.3.2 Method
1.3.2.1 Method for addressing research question two
(a) Approach to identifying relevant instruments

This research developed a framework for identifying the laws that intersect
with agriculture that is based on a systems perspective. Agricultural production
systems are:

[a]n assemblage of components … united by some form of interaction and

interdependence and which operate within a prescribed boundary to achieve
a specified agricultural objective on behalf of the beneficiaries of the
system.24

Put simply, agricultural systems encompass what happens at the farm level to
produce food.

To determine the structure of the thesis, on-farm components (those that

operate within a prescribed boundary) were identified following the approach of
Meadows.25 This process identified the on-farm elements as: the natural resources to
grow food (eg land, soil, water); the labour required for farming; and external inputs,
such as machinery and pesticides. Each chapter in this thesis analyses the regulation
of one on-farm element. Such an approach reflects the shift in policy and scholarship
from a narrow focus on producing more food to adopting a systems approach to food
security that embraces complexity and considers interactions between a range of
activities and external drivers.

However, a few amendments to this approach were necessary for reasons of

scope. To begin, not all external inputs could be included within this project as they
are numerous, and many are not directly subject to international regulation. Instead,
the thesis focuses a chapter each on seeds and pesticides, as these inputs are the most
regulated external inputs at the international level. External inputs that are left out

23
See, eg, Michael W Reisman, Siegried Wiessner and Andrew R Willard (2007) 32 The Yale Journal
of International Law 575; David Kennedy (2008) ‘The Mystery of Global Governance’ 34 Ohio
Northern University Law Review 827.
24
McConnell and Dillon, above n 1, 1.1.
25
Donella H Meadows, Thinking in Systems: A Primer (Chelsea Green Publishing, 2008) 1.
include, for instance, synthetic fertilizers, machinery (except water irrigation), energy
and fuel, and antibiotics and hormones. Similarly, and for reasons of scope,
atmospheric conditions and biodiversity are only considered in connection to other
components because they are omnipresent and intersect with all aspects of
agricultural production.

Lastly, a specific chapter on farm workers and farmers was not possible, as
international regulations relevant to these groups are few and so could be
incorporated into other agricultural components. Similar to climatic conditions and
biodiversity then, farmers and farm workers have been considered throughout where
relevant. For instance, Chapter 8 discusses the workplace health and safety standards
relevant to farm workers, while Chapter 4 deals with the land rights of farming
communities.

As the focus is on agriculture, other food system activities such as processing,

labelling and marketing are not explicitly discussed. Chapter 9, however, differs
somewhat from the design of the previous chapters, as it does not maintain an
artificial distinction between agriculture and the other food system activities that
underpin food security. This is because Chapter 9 deals with the regulation of
agricultural trade, which is arguably more centred on distribution than agriculture.
Nevertheless, international trade and trade rules interact with agriculture by
influencing what, where and how food is produced. Furthermore, agricultural trade
and its governance significantly shape the contributions agriculture makes to food
security. Consequently, an examination of the international regulatory framework for
agriculture would not be complete without encompassing international trade law.

(b) Understanding of law underpinning the identified instruments

The policy-oriented approach was also used to determine the international

regulatory framework for agriculture as required by research question two. This is
because the policy-oriented approach views law in a way that suits how international
law develops, that is, without a centralised authority using command-and-control
regulation. Generally, a policy-oriented approach conceives ‘law’ as any rules that
are: legitimate; formulated by authoritative and legitimate actors; and able to
influence outcomes including the ability to hold actors accountable for their
activities.26

Whether a rule is legitimate depends on a range of factors. Franck identified

these factors as ‘textual determinacy’, ‘coherence’, ‘symbolic validation’ and
‘adherence’.27 ‘Textual determinacy’ refers to the clarity of the rule’s message and
‘coherence’ refers to the consistency of its interpretation and application across
particular situations.28 ‘Symbolic validation’ concerns the ceremony around a rule
that gives it more influence, for instance, symbolic validation can be in the form of a
country’s representative signing an agreement or approval of an instrument by some
higher-level body. ‘Adherence’ refers to the procedures behind the formulation of the
rule. Franck explained that ‘A rule has greater legitimacy if it is validated by having
been made in accordance with secondary rules about rule-making’.29

Whether a rule-maker is authoritative and legitimate depends on the perception

of their standing and authority from those the rule-maker seeks to address and
influence.30 It is useful to distinguish here between legal, moral and social
legitimacy.31 Thomas described legal legitimacy as ‘[a] property of an action, rule,
actor or system which signifies a legal obligation to submit to or support that action,
rule, actor or system’.32 Moral legitimacy exists where an institution is governing in
line with some form of moral criteria (eg religions, customs, and intrinsic values).33

26
These aspects are based on the common aspects of a policy-oriented approach, which is concerned
with whether a rule is ‘authoritive’ and ‘controlling’. These aspects have been enriched in the text
using broader regulatory theory that nonetheless aligns with a policy-oriented approach.
27
Thomas M Franck, The Power of Legitimacy Among Nations (Oxford University Press 1990) 49.
28
Thomas M Franck (1988) ‘Legitimacy in the International System’ 82(4) Amercian Society of
International Law 705, 713.
29
Franck, above n 26, 193.
30
Julia Black, ‘Constructing and Contesting Legitimacy and Accountability in Polycentric Regulatory
Regimes’ (2008) 2 Regulation & Governance 137, 144.
31
This distinction was described in Chris Thomas, ‘The Concept of Legitimacy and International
Law’ (LSE Legal Studies Working Paper No. 12/2013, London School of Economics, 15 May 2013)
<https://www.lse.ac.uk/collections/law/wps/WPS2013-12_Thomas.pdf>. Note, various scholars have
drawn distinctions between the different ways in which institutions gain the legitimacy to rule. See,
eg, Cecily Rose, International Anti-Corruption Norms: Their Creation and Influence on Domestic
Legal Systems (OUP Oxford, 2015) ch 1.
32
Christopher A Thomas, ‘The Uses and Abuses of Legitimacy in International Law’ (2014) 34(4)
Oxford Journal of Legal Studies 729, 7.
33
Fred E Foldvary, ‘Moral Legitimacy’ in Deen K Chatterjee (ed), Encyclopedia of Global Justice
(Springer Netherlands, 2011) 724 <http://link.springer.com/referenceworkentry/10.1007/978-1-4020-
9160-5_333>.
Unlike the previous forms, social legitimacy is primarily subjective and exists where
actors perceive an institution as having the ability to govern.34

Whether a rule is able to influence outcomes is in part a question of fact. One

of the ways in which to determine the influence a rule has had is to examine its
accountability mechanisms and implementation. Accountability refers to the
relationship between actors. To be accountable, an institution may monitor an actor’s
behaviour, the actor may be required to explain their actions and decisions, and an
institution may have the ability to influence the actor through the application of
remedies or sanctions.35

Using this method, this thesis considers ‘law’ to be those informal and formal
regulatory tools (eg guidelines, standards, laws, agreements or codes of practice)
created by multilateral entities and intergovernmental organisations or agreed to by
states. Such rule-makers generally have a level of legitimacy and authority, as
Buchanan and O’Keohane explained ‘These institutions are like governments in that
they issue rules and publicly attach significant consequences to compliance or failure
to comply with them — and claim the authority to do so’. For the purposes of this
research, the regulations promulgated by the United Nations (UN), the World Trade
Organization, the Bretton Woods Institutions (eg World Bank), international courts
and various treaty bodies are relevant.36 Future research could add to the current
project by incorporating regulatory instruments used by private institutions or actors.

1.3.2.2 Method for addressing research questions one, three and four

A policy-oriented approach focuses on the compatibility of rules with the

achievement of specific social goals and common values, including human dignity in
particular.37 Reisman, Weisnner and Willard explained that the approach ‘appraises
decision trends for their compatibility with clarified goals’ and so it provides the

34
Daniel Bodansky, ‘Legitimacy in International Law and International Relations’ in Interdisciplinary
Perspectives on International Law and International Relations (Cambridge University Press, 2012)
<http://dx.doi.org/10.1017/CBO9781139107310.016>.
35
Black, above n 30, 150.
36
Allen Buchanan and Robert Baldwin, ‘The Legitimacy of Global Governance Institutions’ in Lukas
H Meyer (ed), Legitimacy, Justice and Public International Law (Cambridge University Press, 2009)
29, 30.
37
See, eg, Seigfried Wiessner and Andrew R Willard (1999) ‘Policy-Oriented Jurisprudence and
Human Rights Abuses in Internal Conflict: Toward a World Public Order of Human Dignity’ 93(2)
The American Journal of International Law 316.
‘conceptual tools for those using it to invent and appraise alternative decisions,
constitutive arrangements, and courses of action, using the guiding light of a
preferred future world public order of human dignity’.38

In line with the policy-oriented approach, this thesis proposes that the
international regulatory framework for agriculture should promote food security. It
uses the human rights connected to food security, especially the human right to
adequate food, as the basis for this proposition. To determine the compatibility of the
international agricultural regulatory regime with the achievement of food security,
this thesis employs a rights-based approach to clarify the goal of food security. In
other words, this research employs human rights as a bench mark for evaluating the
contribution of a regulatory regime to the objective of world food security. Such an
approach provides conceptual tools for analysing regulatory arrangements that are
consistent with widely-shared values including human dignity, freedom, shared
responsibility and sustainability.39

Using a rights-based approach to food security as the basis, this thesis has
developed the following criteria to be applied throughout the substantive chapters of
this thesis:

1. Objectives and provisions that are directly compatible with the realisation
of human rights and food security in the context of agriculture;

2. Special treatment, support and protections for: (a) currently food insecure
groups and countries, and (b) groups and countries most vulnerable to food
insecurity;

3. Procedures in the design, negotiation and implementation of the

instruments that reflect human rights principles including participation,
accountability, non-discrimination/equality, transparency and the rule of
law;

38
Siegfried Wiessner and Andrew R Willard (1999) 93(2) ‘Policy-Oriented Jurisprudence and Human
Rights Abuses in Internal Conflict: Toward a World Public Order of Human Dignity’ 93(2) American
Journal of International Law 316, 319.
39
Some of the values are encapsulated in the Charter of the United Nations Preamble and art 1. A
more expansive list of common values at the international level can be found in United Nations
Millennium Declaration, GA Res 55/7, UN GAOR, 55th sess, 8th plen mtg, Agenda Item 60(b), UN
Doc A/Res/55/2 (8 September 2000) [1]-[7] where the members of the UN agreed that the
fundamental values essential to international relations included freedom, equality, solidarity,
tolerance, respect for nature and shared responsibility.
 4. Mechanisms, instruments and provisions that promote the sustainable use
of natural resources, biodiversity and the maintenance of ecosystem
services relied upon for agriculture.

This criteria address research question one and are used throughout the thesis
to respond to research questions three and four. Chapter 3 is dedicated to exploring
this conceptual basis further, and it expands on these criteria with sub-components
and considerations. Throughout this thesis references to criteria and criterion 1, 2, 3
and 4 should be understood as a reference to the above criteria.

It should be noted that this thesis is not suggesting that a regulatory regime that
meets these criteria will achieve food security, as this issue requires a wide range of
interdisciplinary initiatives across different dimensions. Rather, this thesis holds that
regulations can and should held build an enabling environment for the achievement
of food security.

1.3.3 Rationale for International Focus

Although the regulation of agriculture at national, regional and local levels is
central to addressing food security challenges, this thesis focuses on the international
level. As will be illustrated in Chapter 2, international actors have influenced
agriculture and food systems for hundreds of years. Interrelated trends and events at
the global level, including the concentration of transnational corporations in food
systems and the inclusion of agriculture in trade agreements, have led to an
increasingly globalised and industrialised agriculture and food system (such change
is referred to as the ‘global restructuring of agri-food systems’).40 Clapp and Fuchs
observed that:

We now have a globally integrated food system that affects all regions of the
world. The recent price volatility in food prices has illustrated the global

40
See, eg, Alessandro Bonanno, From Columbus to ConAgra: The Globalization of Agriculture and
Food (University Press of Kansas, 1994); Philip McMichael (ed), The Global Restructuring of Agro-
Food Systems (Cornell University Press, 1994); Michel Pimbert et al, ‘Global Restructuring, Agri-
Food Systems and Livelihoods’ (no. 100, International Institute for Environment and Development,
2001) 2001 <http://pubs.iied.org/pdfs/9166IIED.pdf>.
 nature of this food system, highlighting the ways developments in one part
of the world can have multiple and wide-ranging impacts.41

These trends make an analysis of the international regulation of agriculture

appropriate and significant. Given that no other research has comprehensively
identified and analysed the international regulation of agriculture, future research can
build on the analysis of the international regulatory framework provided here in
studies at regional, national and local levels.

1.4 SIGNIFICANCE

Legal scholarship on the international regulation of agriculture and food

security has focused on particular issues within the framework and particular areas of
law. Most legal scholarship is on intellectual property rights in plant genetic
resources or the rules that regulate agricultural trade. To date, no legal scholars have
identified, examined or critiqued the overarching international regulatory regime for
agriculture. In addition, legal scholarship has overlooked specific areas, such as the
international regulation of pesticides or the international regulation of watercourses
in the context of agriculture.

In fact, only two legal scholars have examined the international regulation of
food and agriculture in terms of its overarching framework and role. These scholars
are Olivier de Schutter (a former Special Rapporteur on the Right to Food) and
Carmen Gonzalez.42 The work of these authors has been highly influential on this
thesis. These authors have tended to focus on the regulatory framework for food and
agriculture generally, which has paved the way for this project to systematically
evaluate relevant international regulatory instruments.

41
Jennifer Clapp and Doris A Fuchs, ‘Agrifood Corporations, Global Governance and Sustainability:
A Framework for Analysis’ in Jennifer Clapp and Doris A Fuchs (eds), Corporate Power in Global
Agrifood Governance (MIT Press, 2009) 1.
42
See, eg, Gonzalez, ‘The Global Food System, Environmental Protection, and Human Rights’, above
n 14; Carmen G Gonzalez, ‘Institutionalizing Inequality: The WTO Agreement on Agriculture, Food
Security, and Developing Countries’ (2002) 27 Columbia Journal of Environmental Law 433; Carmen
G Gonzalez, ‘International Economic Law and the Right to Food’ in Nadia C Lambek et al (eds),
Rethinking Food Systems: Structural Challenges, New Strategies and the Law (Springer, 2014) 165;
See, eg, Olivier De Schutter, ‘Reshaping Global Governance: The Case of the Right to Food’ (2012) 3
Global Policy 480; Olivier De Schutter, Building Resilience: A Human Rights Framework for World
Food and Nutrition Security, 9th sess, Agenda item 3, UN Doc A/HRC/9/23, (8 September 2008)
(Report of the Special Rapporteur on the Right to Food) .
 Apart from their work, two edited collections directly deal with international
law, agriculture and food security. The first is entitled The Challenge of Food
Security: International Policy and Regulatory Frameworks (2012) in which the blurb
to the collection explains that food security is examined ‘[w]ithin the little-studied
context of its international and regulatory framework’.43 This edited collection covers
a range of issues from the perspective of a range of authors. The second is entitled
Rethinking Food Systems: Structural Challenges, New Strategies and the Law
(2014).44 It contains a collection of perspectives and analyses regarding the legal and
institutional structures that underpin the global food system. In this collection, the
editors noted:

…In the wake of the Global Food Crisis…[f]ew observers highlighted that at
the heart of the global system lie legal problems…Scholars from a variety of
fields — such as political science, natural resource management and
anthropology — have recognized the centrality of law in determining the
ways that our food is grown, processed and sold. However, they have tended
to shy away from direct and thorough analysis of legal issues and processes.
Perhaps more surprisingly, the legal academy has yet to make a significant
contribution to recent discussions regarding the mechanisms that may limit
peoples’ access to food…45

Another edited collection that intersects with the themes of this thesis and originates
from legal scholars is Law and Agroecology: A Transdiscipliney Dialogue (2015)
edited and contributed to by Monteduro et al.46 This collection was the first to link
agroecology with agricultural law, and propose the idea of agroecological law. Thus,
it was a seminal work for drawing connections between agroecology, that is,
sustainable agriculture, with legal discourses.

These edited collections and the work of Gonzalez and De Schutter go some of
the way to addressing and drawing attention to the gaps in legal scholarship on the

43
Rosemary Rayfuse and Nicole Weisfelt, The Challenge of Food Security: International Policy and
Regulatory Frameworks (Edward Elgar Publishing, 2012).
44
Nadia Lambek et al (eds), Rethinking Food Systems: Structural Challenges, New Strategies and the
Law (Springer Science & Business Media, 2014).
45
Priscilla Claeys and Nadia C Lambek, ‘Introduction: In Search of Better Options: Food
Sovereignty, the Right to Food and Legal Tools for Transforming Food Systems’ in Nadia Lambek et
al (eds), Rethinking Food Systems: Structural Challenges, New Strategies and the Law (Springer
Science & Business Media, 2014) 1, 5.
46
Massimo Monteduro et al (eds), Agroecolgoy and the Law: A Transdisciplinary Dialogue (Springer,
2015).
international regulation of agriculture. This thesis contributes to the emerging area of
legal scholarship regarding global food system governance, but it also makes an
original contribution through its comprehensive approach to the international
regulation of agriculture. Accordingly, this thesis provides a cohesive basis for future
research into the international regulation of food system activities and the global
governance of food and agriculture.

Along with socio-legal researchers, this research is intended for use by a range
of stakeholders and across disciplines. For instance, people working within
agriculture and food institutions (eg international intergovernmental organisations
and non-governmental organisations) may derive benefits from this research, as well
as policy makers and practitioners at regional and national levels. For a reader to
fully engage with this thesis, a basic understanding of international law is required.
Yet, the design of this research makes it accessible to researchers from other
disciplines, as the starting point for analysis is a physical element of agriculture
rather then a legal issue or instrument that they may not be familiar with.47
Furthermore, each chapter begins by describing key issues, actors and background
information because of the change in subject-matter.

1.5 TERMINOLOGY

The thesis commonly uses a number of terms that are contested and
inconsistently interpreted. In order to clarify terminology, the following section
outlines how this research understands particular terms.

1.5.1 Food Security

1.5.1.1 Evolving understandings of food security
Food security is a prism through which food and agricultural issues facing
regulators and humanity can be understood. Historically, food security was, and
often still is, equated with sufficient calories, and thus the solution to food insecurity
has generally been to increase agricultural yields so that more food is produced.48
Yet, food security and the means to achieving it are far more complicated than
increasing yields. As a result, the Food and Agriculture Organization of the United

47
Except in the case of agricultural trade.
48
See, eg, George-Andre Simon, ‘Food Security: Definition, Four Dimensions, History’ (Food and
Agriculture Organization, 2012) <http://www.fao.org/fileadmin/templates/ERP/uni/F4D.pdf>.
Nations (FAO) and the World Bank have gradually expanded definitions of food
security since the 1970s in several policy documents.49

These broadened understandings of food security were largely influenced by

renowned economist, Amartya Sen, and his ‘food entitlement approach’, which he
developed through his studies on the causes of famines.50 Essentially, Sen found that
a person has a range of resources (entitlement sets) that include things they own (eg
land) and acquire (eg wages). Food insecurity is the result of a loss of endowment
(eg a person’s land) or a loss of exchange entitlement (eg rising food prices and
unemployment).51 Notably, Sen observed that during several famines, including the
Bengal Famine 1943, the Ethiopian Famine 1973, and Bangladesh Famine 1974,
either a small increase in food production had occurred or there had been no
significant decline.52

In the last decade, food security has become part of broader security dialogues.
Increasingly, policy makers use the concept in combination with other issues that
stem from the distribution and depletion of natural resources, such as water and
energy insecurity.53 The figure below from the World Economic Forum outlines the
connections between water, food and energy security.

49
The first definition of ‘food security’ was contained in ‘Report of the World Food Conference,
Rome 5-16 November 1974’ (United Nations, 1975), which described food security as ‘availability at
all times of adequate world food supplies of basic foodstuffs to sustain a steady expansion of food
consumption and to offset fluctuations in production and prices’. For an overview of how food
security as a concept developed since 1974, see Simon Maxwell, ‘Food Security: A Post-Modern
Perspective’ (1996) 21 Food Policy 155.
50
Amartya Sen, Poverty and Famines: An Essay on Entitlement and Deprivation (Oxford University
Press, 1982) developed the food entitlement approach that ‘Concentrates…on the ability of different
sections of the population to establish command over food through the legal means available in
society, including the use of production possibilities, trade opportunities…and other methods of
acquiring food’. Sen argued that food insecurity is caused by an inability to command enough food
and so ensuring personal entitlements to resources in the way to create food security. Because of the
contribution by Sen and others, food security was no longer equated with food supply and access to
food became a focus.
51
Amartya Sen, ‘Food, Economics and Entitlements’ (WP1, World Institute for Development
Economics Research, United Nations University, February 1986) 9
<https://www.wider.unu.edu/sites/default/files/WP1.pdf>.
52
Sen, Poverty and Famines, above n 49, 6, 7, 9.
53
In ‘Global Risks 2011: An Initiative of the Risk Response Network’ (6th ed., World Economic
Forum, 2011) 7 <http://reports.weforum.org/wp-content/blogs.dir/1/mp/uploads/pages/files/global-
risks-2011.pdf> the ‘water-food-energy’ nexus was described in the following terms ‘A rapidly rising
global population and growing prosperity are putting unsustainable pressures on resources. Demand
for water, food and energy is expected to rise by 30-50% in the next two decades, while economic
disparities incentivize short-term responses in production and consumption that undermine long-term
sustainability. Shortages could cause social and political instability, geopolitical conflict and
irreparable environmental damage’.
 Figure 1.2 Water-Food-Energy Security Nexus - World Economic Forum54

1.5.1.2 Defining food security

The internationally accepted definition of food security, and the most refined to
date, is the 2001 version of the FAO’s report on the state of food insecurity.
According to this report, food security exists ‘[w]hen all people, at all times, 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’.55 It requires
immediate, direct action to address starvation and medium to long-term action
related to sustainable agriculture, rural development and nutrition.56 Additionally,
food security has four limbs: food availability, food access, food utilisation (or
adequacy) and stability. When one or more of these limbs is stressed, food security is
diminished.57

The first limb requires food availability in terms of the ‘[a]vailability of

sufficient quantities of food of appropriate quality, supplied through domestic

54
Ibid 29.
55
‘Rome Declaration on World Food Security’ (United Nations, 1996)
<http://www.fao.org/docrep/003/w3613e/w3613e00.HTM>.
56
This is termed the ‘twin-track’ approach. Committee on World Food Security (2014) Global
Strategic Framework for Food Security and Nutrition
< http://www.fao.org/fileadmin/templates/cfs/Docs1314/GSF/GSF_Version_3_EN.pdf> 12-13.
57
P Gregory, J S Ingram and M Brklacich, ‘Climate Change and Food Security’ (2005) 360
Philosophical Transactions of the Royal Society B: Biological Sciences 2139.
production or imports’.58 Levels of livestock and grain production, stock levels and
trade imports and exports are relevant indicators. At a global level, this limb is being
met, as there is enough food to feed everyone.59

The second limb concerns an individual’s access to ‘[a]dequate resources for

acquiring appropriate foods for a nutritious diet’.60 As discussed, there is enough
food in the world to feed everyone; thus, the problem is one of distribution. The
access limb reflects these distributional inequalities in terms of physical and
economic access to food. Physical access can be limited for people who are
physically or mentally vulnerable, such as children or persons with disabilities.
Economic accessibility refers to poverty, that is, ‘[a] failure of livelihoods to
guarantee access to sufficient food to people at a household level’.61 Economic
access to food is affected by, for example, market fluctuations, rises in employment
or unemployment, tenure security and degradation to or loss of assets relied upon for
livelihood.62 It is widely accepted that the inability to access food is the main cause
of food insecurity, which differs from the previous focus on increasing food
availability.63

The third limb, adequacy or food utilisation, concerns ‘[t]he appropriate use of
food, based on knowledge of basic nutrition to maintain sufficient energy and
nutrient intake. Utilisation also includes knowledge of food preparation, cooking and
storage, and the ability to make appropriate food choices’.64 Food utilisation
encompasses food safety and waste, as well as malnutrition (including malnutrition
associated with obesity termed ‘overnutrition’) and micronutrient deficiencies.65 As a

58
‘Food Security’ (Policy Brief Issue 2, Food and Agriculture Organization of the United Nations,
June 2006) <ftp://ftp.fao.org/es/ESA/policybriefs/pb_02.pdf>; ‘The State of Food Insecurity in the
World: The Multiple Dimensions of Food Security’, above n 8, 20.
59
What Causes Hunger? Fighting Hunger Worldwide (2015) United Nations World Food Programme
<https://www.wfp.org/hunger/causes>.
60
‘Food Security’, above n 57; ‘The State of Food Insecurity in the World: The Multiple Dimensions
of Food Security’, above n 8, 17.
61
Stephen Devereux, Simon Maxwell and University of Sussex Institute of Development Studies,
Food Security in Sub-Saharan Africa (ITDG, 2001).
62
Christopher B Barrett, ‘Measuring Food Insecurity’ (2010) 327 Science 825.
63
John Ingram, ‘A Food Systems Approach to Researching Food Security and Its Interactions with
Global Environmental Change’ (2011) 3 Food Security 417.
64
‘National Food Plan: Green Paper’ (Policy document, Australian Government: Department of
Agriculture, Fisheries and Forestry, July 2012) 284. ‘The State of Food Insecurity in the World: The
Multiple Dimensions of Food Security’, above n 8, 21.
65
‘The State of Food Insecurity in the World: The Multiple Dimensions of Food Security’, above n 8,
21.
result, food utilisation is considered to have three sub-elements: the nutritional value
of food, the social value of food as part of social and cultural gatherings, and food
safety.

The fourth limb, stability, refers to the above three limbs of food security. In
this context, stability requires a population, household or individual to have access to
adequate food at all times.66 This means that food security does not exist if there is
high potential for shocks to create food insecurity. A range of factors may affect the
stability of food in terms of access, availability and utilisation. These include natural
disasters and changes in legal, political, economic and social arrangements. The food
security status of a group can fluctuate between existence and non-existence
depending on external factors.67

1.5.2 Food Insecurity

Put simply, food insecurity exists when the accepted definition of food security
is not being met.68 Food insecurity is experienced at individual, household,
community and national levels.69 Moreover, it can be acute, chronic or hidden. Acute
or transitory food insecurity is generally sudden and temporary, such as starvation
that occurs during famines, conflicts or disasters.70 Chronic food insecurity is
likewise associated with hunger, but it is directly caused by structural inequalities,
such as lack of assets and low income, which mean that this type of food insecurity is
long-term.71 Hidden food insecurity, also called ‘hidden hunger’, is an inadequate

66
Ibid 22.
67
Mark Gibson, The Feeding of Nations: Re-Defining Food Security for the 21st Century (CRC Press,
1st ed, 2012).
68
‘Trade Reforms and Food Security: Conceptualizing the Linkages’ (Commodity Policy and
Projections Service, Economic and Social Development Department of the Food and Agriculture
Organisation, 2003) 313, 29 <http://www.fao.org/docrep/005/y4671e/y4671e06.htm#fnB27>.
69
See generally, Andrew D Jones et al, ‘What Are We Assessing When We Measure Food Security?
A Compendium and Review of Current Metrics’ (2013) 4 Advances in Nutrition: An International
Review Journal 481. In terms of national food insecurity, this occurs where a state is not domestically
producing or importing enough food.
70
Reimund P Roetter and Herman Van Keulen, ‘Food Security’ in Reimund P Roetter et al (eds),
Science for Agriculture and Rural Development in Low-income Countries (Springer Netherlands,
2007) 27, 28 <http://link.springer.com.ezp01.library.qut.edu.au/chapter/10.1007/978-1-4020-6617-
7_3>.
71
Tim Hart, ‘Exploring Definitions of Food Insecurity and Vulnerability: Time to Refocus
Assessments’ (2009) 48 Agrekon 362, 364; Tefera Belachew et al, ‘Predictors of Chronic Food
Insecurity among Adolescents in Southwest Ethiopia: A Longitudinal Study’ (2012) 12 BMC Public
Health 604.
intake of micronutrients and, in particular, iodine, vitamin A and iron.72 Commonly,
food insecurity manifests as energy deficiencies, nutrient deficiencies and/or
excessive net energy intake.73

1.5.3 Developed and Developing States

Human development refers to the ‘process of expanding the real freedoms that
people enjoy’74 or in other words, human development concerns ‘[w]hat each person
is able to do and to be’.75 Hence, development should not be confused with the
means to achieving it, such as improving education facilities or increasing incomes,
through which freedoms are expanded.76

The terminology used by the World Bank that categorises states as either
developed or developing differs from this understanding of human development and
such categories are not necessarily reflective of the freedoms a country’s citizens
possess. Regardless of income, food insecurity is an issue for all countries, especially
in light of natural resource degradation and climate change, as well as the prevalence
of overweightness and obesity, which is more likely to affect food insecure people.
Nevertheless, this thesis uses the developing and developed state terminology
because these terms are the most commonly used and not because this terminology is
considered the most appropriate.

Developed states are high-income, industrially advanced countries with

relatively high average standards of living.77 Developing states are generally low-
and middle-income economies.78 This category has a number of subsets, including

72
G F Maberly et al, ‘Programs Against Micronutrient Malnutrition: Ending Hidden Hunger’ (1994)
15 Annual Review of Public Health 277, 277.
73
Pinstrup-Andersen, above n 11, 189.
74
Amartya Sen, Development as Freedom (Oxford University Press, 1999) 3.
75
Martha C Nussbaum, Creating Capabilities (Harvard University Press, 2011) 18.
76
For the purposes of this research, development is understood as human development based on the
capabilities approach as opposed to the more conventional understandings of development that equate
to economic growth. Amartya Sen is a main contributor to the development of this theory. See, eg,
Sen, above n 73, 3 where Sen explains, ‘Viewing development in terms of expanding substantive
freedoms directs attention to the ends that make development important, rather than merely to some of
the means that, inter alia, play a prominent part in the process’; Amartya Sen, ‘Human Rights and
Capabilities’ (2005) 6 Journal of Human Development 151. See also, Nussbaum, above n 74 where
the author suggested a list of 10 capabilities.
77
For recent classifications, see Country and Lending Groups (2015) The World Bank
<http://data.worldbank.org/about/country-and-lending-groups#Upper_middle_income>.
78
Ibid; See also, Glossary (2004) World Bank
<http://www.worldbank.org/depweb/english/beyond/global/glossary.html>. Often countries do not fit
neatly into one category or the other. For instance, Hong Kong, Israel, Kuwait, Singapore and the
small-island developing states, least developed countries and landlocked developing
countries.79 This thesis often makes a further distinction by referring to middle-
income states, which are those developing countries that are increasingly
industrialised and have experienced rapid economic growth.80

1.5.4 Agriculture and Small-Scale Farming

As discussed, agriculture is the ‘cultivation of crops and animal husbandry, as
well as forestry, fisheries, and the development of land and water resources’.81 For
the purposes of this project, fisheries, forest farming and aquaculture are generally
not considered in order to limit scope and so ‘agriculture’ refers to cultivation of
crops and animal husbandry. Despite this, the distinction between crop cultivation,
animal husbandry, forest farming and fisheries is often non-existent. Sustainable and
traditional/indigenous farming systems often incorporate aquaculture or forestry as
part of their agricultural practices along with crop or animal production.82

This thesis often refers to a particular type of agriculture termed small-scale

farming, which term is used interchangeably with smallholder agriculture, small-
scale farmers or family-based farming.83 Small-scale farming is difficult to define

United Arab Emirates are high-income countries but are often considered developing one-side
economies based on oil exports or have social and political aspects such as high income equality,
poverty rates and inadequate welfare systems.
79
Small-island developing states are a sub-set of developing countries made up of 38 countries. They
face particular challenges due to their geographic location. There are 31 landlocked developing
countries that also face difficulties due to their remoteness. Least developed are the poorest countries.
See UN-OHRLLS (2015) UN Office of the High Representative for the Least Developed Countries,
Landlocked Developing Countries and Small-Island Developing States <http://unohrlls.org/about-
ldcs/>.
80
These are countries that are industrial with characteristics of developed countries but their market
efficiency and finance laws are not at the same level as developed countries.
81
Multilingual Thesaurus on Land Tenure (2003) Food and Agriculture Organization of the United
Nations
<http://www.fao.org/docrep/005/x2038e/x2038e00.htm#Contents>.  
82
For instance, political anthropologist, Edurado Brondizio has extensively researched the farming
systems of caboclos, which are traditional Amazonian communities. He has often observed how these
communities are thought of as ‘extractivists’ by mainstream society. Brondizio sees this as an
example of widespread unawareness of the skill involved and argued that ‘extractivists’ perpetuates
cultural stereotypes. For instance, in Eduardo S Brondízio, The Amazonian Caboclo and the Açaí
Palm: Forest Farmers in the Global Market (New York Botanical Garden Press, 2008) 12. It was
observed that ‘...caboclos have created forms of resource management that mimic and mix forest and
agriculture and are difficult to differentiate from surrounding forests. Nurturing forests into “invisible
production systems” has been a strategy’.
83
The understanding of ‘family farming’ is broad, and so not all family farms practice small-scale
farming. In order to provide clarity, researchers have identified three categorises of family farms. The
first type (Group A) encompasses those family farms that have significant assets and are fully
integrated into the market for food at domestic and international levels. The second type (Group B)
includes those family farms that have a moderate level of assets but face other issues such as a lack of
due to the variations between farms, cultures and regions. It generally refers to farms
that have scarce resources (including but not limited to land and water) and contrasts
with both landless workers and farms with intensive methods and hired labour.84

A useful definition of small-scale farming comes from the Committee on

World Food Security’s High Level Panel of Experts. They explained that smallholder
agriculture is:

[p]ractised by families (including one or more households) using only or

mostly family labour and deriving from that work a large but variable share
of their income, in kind or in cash. Agriculture includes crop raising, animal
husbandry, forestry and artisanal fisheries. The holdings are run by family
groups, a large proportion of which are headed by women, and women play
important roles in production, processing and marketing activities.85

Other characteristics of small-scale farming may include: low use of external

inputs (eg pesticides, synthetic fertiliser, etc); limited resources, market access and
orientation; high capacity for local innovations related to ecosystem knowledge and
genetic resources; and being disproportionately affected by a range of external
pressures.86

This type of farming is often referred to in this thesis because small-scale

farming is critical to food security. Firstly, small-scale farmers substantially

access to credit. In Julio A Berdegué and Ricardo Fuentealba, ‘Latin America: The State of
Smallholders in Agriculture’ (International Fund for Agricultural Development, 2011) 10
<http://www.ifad.org/events/agriculture/doc/papers/Berdegue.pdf> the authors explained that Group B
is the category of family farms that ‘fall through the cracks of institutional failures and state
weaknesses, often ignored by policy makers focused on promoting agricultural exports and by those
who mandate is to target the poorest’. The third type (Group C) is the poorest farmers in terms of
assets and access to markets. They often have on-farm and off-farm income sources.
84
‘Investing in Smallholder Agriculture for Food Security’ (HLPE Report No. 6, The High Level
Panel of Experts on Food Security and Nutrition, June 2013) 10–11
<http://www.fao.org/fileadmin/user_upload/hlpe/hlpe_documents/HLPE_Reports/HLPE-Report-
6_Investing_in_smallholder_agriculture.pdf>. See also, ‘Smallholders and Family Farmers’ (Fact
Sheet, Food and Agricultural Organization of the United Nations, 2012) 1
<http://www.fao.org/fileadmin/templates/nr/sustainability_pathways/docs/Factsheet_SMALLHOLDE
RS.pdf>.
85
‘Investing in Smallholder Agriculture for Food Security’, above n 83.
86
Report of the Ad Hoc Technical Expert Group Meeting on the Potential Impacts of Genetic Use
Restriction Technologies on Smallholder Farmers, Indigenous and Local Communities and Farmers’
Rights, United Nations Environment Program, Convention on Biological Diversity, UN Doc
UNEP/CBD/SBSTTA/9/INF/6, UNEP/CBD/WG8J/3/INF/2 (29 September 2003) Annex I, 6.
Notably, small-scale farming takes a number of different forms and so these characteristics should act
only as a guide.
contribute to the world’s food supply, with estimates ranging from 53 to 80 per cent
of food being produced by smallholders.87 Secondly, smallholder farmers generally
practice sustainable/ecological agriculture, such approach preserves and fosters the
natural resources and environmental services on which food security relies.88
Thirdly, the majority of hungry people live in rural areas in developing countries and
tend to rely on smallholder agriculture for their livelihoods and/or for their rural
economy (and therefore, their economic access to food).89

1.6 BRIEF SYNOPSIS

There are three introductory chapters to this thesis. This chapter, Chapter 1,
outlined the overall purpose and design of the project. Chapter 2 focuses on the
historical and contemporary context, including the discourses and normative debates,
that shape the regulation of food and agriculture at the international level. Chapter 3
outlines the conceptual basis for this thesis in more detail. In particular, it outlines
the key components of a rights-based approach to food security.

The substantive chapters of this thesis continue from Chapter 4 to Chapter 9.

Each chapter examines one component (eg land, soil, water). At the start of each
chapter is an analysis of how the agricultural component contributes to food security.
Further, each chapter identifies the kind of regulatory interventions that should exist
if the regulations influencing the agricultural component were consistent with a
rights-based approach to food security.

Chapters 4 and 5 concern the international regulation of land. Chapter 4

examines the international regulation of land tenure with a specific focus on recent
trends in large-scale agricultural land acquisitions involving foreign entities. Chapter

87
Across institutional and non-state actor documents, it is often stated that small-scale farmers
produce 70 per cent of the world's food. According to the FAO, small-scale farmers produce 80 per
cent of the world’s food. ‘The State of Food and Agriculture: Innovation in Family Farming’ (Food
and Agricultural Organization of the United Nations, 2014) 9 <http://www.fao.org/3/a-i4040e.pdf>.
Another study used a different methodology and estimated that around 53 per cent of the world’s food
is produced by small-scale farmers. See, Benjamin E Graeub et al, ‘The State of Family Farms in the
World’ World Development
<http://www.sciencedirect.com/science/article/pii/S0305750X15001217>.
88
See, eg, Miguel A Altieri, ‘Agroecology, Small Farms, and Food Sovereignty’ (2009) 61 Monthly
Review 102; Progress H Nyanga, ‘Food Security, Conservation Agriculture and Pulses: Evidence from
Smallholder Farmers in Zambia’ (2012) 1 Journal of Food Research 120; Steve Wiggins, Johann
Kirsten and Luis Llambí, ‘The Future of Small Farms’ (2010) 38 World Development 1341.
89
‘The State of Food Insecurity in the World 2012: Economic Growth Is Necessary but Not Sufficient
to Accelerate Reduction of Hunger and Malnutrition’, above n 8, 21.
5 examines the international regulation of soil including the international climate
change regime. Chapter 6 focuses on the international regulation of water, where the
regulation of shared international rivers and groundwater forms the crux of the
analysis. Chapter 7 concerns plant genetic material (seeds), particularly international
access-and benefit-sharing schemes and intellectual property law. Chapter 8
examines the international regulation of pesticides covering agreements from
international labour standards through to maximum residue limits on food. Chapter 9
is the last substantive chapter and it focuses on agricultural trade liberalisation under
the World Trade Organization’s Agreement on Agriculture. Chapter 10 is the final
chapter. It ties together the conclusions and reform recommendations from each
chapter to answer the research questions posed and examines the bigger-picture
issues and trends that intersect with this research.
 Global Governance of Food

2.1 OVERVIEW

This contextual chapter sets the scene for the following chapters and contains the three
main outcomes. Firstly, this chapter outlines the main causes of food insecurity and the
emerging threats to food security. Secondly, it describes the key international bodies involved
in the regulation of agriculture that are referred to throughout this thesis. Thirdly, this chapter
explores the contest between dominant and alternative policy frames regarding how to
regulate and conduct agriculture for food security.

2.2 ISSUES AND CHALLENGES FOR FOOD SECURITY AND AGRICULTURE

Food and agriculture are paradoxical areas for research and development. While
enough food is produced to feed everyone, billions of people are malnourished.90 Agriculture
threatens human survival through its role in environmental and human health harms, but also
sustains and enriches human life. To succinctly examine the multiple, converging issues
around food and agriculture, the below table provides a summary of the main concerns.

Typically, the issues and challenges outlined below disproportionately affect

marginalised groups. For example, 55 per cent of the world’s hungry (one manifestation of
food insecurity) are small-scale farmers, 20 per cent are landless labourers, 10 per cent are
fisher folk and forest dwellers, and the remaining 20 per cent are urban poor.91 Groups that
experience a higher risk of poverty or social exclusion are particularly vulnerable to the
effects of agricultural shocks (eg changes in rainfall or crop diseases). For instance, those
with agriculture-based livelihoods and the urban poor are likely to experience increased food
insecurity from the impacts of climate change (eg natural disasters, declining yields).92

90
What Causes Hunger? Fighting Hunger Worldwide, above n 58. Malnutrition encompasses undernutrition
and overnutrition.
91
World Development Report 2008 - Agriculture for Development (World Bank 2007) 109; Sanchez et al
‘Halving Hunger: It Can be Done’ (UN Millennium Project, United Nations Development Programme, 2005) 6.
92
‘Climate Change and Food Security: A Framework Document’, above n 17.
Challenge Description

Around 1.6  billion  tonnes  of primary food products  are wasted in  the world  each year. Food waste  is an issue is  because it wastes resources. For 

instance, 1.4 billion hectares of land, which is around 28 per cent of the global agricultural land area, is used to produce food that is wasted. Food 
Food Waste waste also represents lost opportunity for those who are food insecure. Developing countries tend to waste the most food post‐harvest due to lack of 
storage and other forms of infrastructure. In middle‐income and developed countries, food waste mostly occurs at retail and consumer levels.93 
 
Climate change exacerbates pre‐existing food production challenges and issues. More frequent, longer‐running and extreme weather events, rising 
sea levels and changes in temperature, evaporation, humidity and rainfall will affect the amount of food produced and the affordability and physical 
Climate Change accessibility  of  food.  Of  particular  concern  is  the  increase  in  droughts  and  dry  spells,  which  affect  both  crop  and  livestock  production.  Areas  that 
already have particularly high levels of food insecurity are expected to be the most affected by such changes. Additionally, the types of crops that can 
be  grown  in  particular  areas,  the  functioning  of  ecosystems  and  the  kinds  of  pests  and  diseases  may  change.  There  is  likely  to  be  a  decrease  in 
agricultural land stemming from desertification. Even minor changes in temperature can affect crop yields. As a result, the diversity of foods available 
to help meet different micronutrient needs and safety of food may decrease. At the same time, the effects can also help plant growth due to the 
increase in atmospheric carbon.94 
The  nutrition  transition  illustrates  the  connections  between  food  production  and  consumption.  Demographic  and  epidemiologic  transitions  have 
changed diet and physical activity trends. Popkin and Gordon‐Larsen, ‘Modern societies seem to be converging on a diet high in saturated fats, sugar, 
Nutrition and refined food but low in fibre‐often termed the Western diet’.95 The issue with the transition is that Western diets are meat, sugar, saturated fat 

93
‘Food Wastage Footprint: Impacts on Natural Resources’ (Summary Report, Food and Agriculture Organisation of the United Nations, 2013) 63.
94
For overviews, see eg, Alvaro Calzadilla et al, ‘Climate Change Impacts on Global Agriculture’ (2013) 120 Climatic Change 357; ‘Climate Change and Food Security: A Framework
Document’, above n 17; Tim Wheeler and Joachim von Braun, ‘Climate Change Impacts on Global Food Security’ (2013) 341 Science 508; Cheryl A Palm et al, ‘Identifying Potential
Synergies and Trade-Offs for Meeting Food Security and Climate Change Objectives in Sub-Saharan Africa’ (2010) 107 Proceedings of the National Academy of Sciences of the United States
of America 19661; Henrik Urdal, ‘Demographic Aspects of Climate Change, Environmental Degradation and Armed Conflict’ (2008) 25
<http://www.researchgate.net/publication/228801794_Demographic_aspects_of_climate_change_environmental_degradation_and_armed_conflict/file/9fcfd50b32baa21d89.pdf>; Heidi Sulda,
John Coveney and Michael Bentley, ‘An Investigation of the Ways in Which Public Health Nutrition Policy and Practices Can Address Climate Change’ (2010) 13 Public Health Nutrition 304.
95
Barry M Popkin and Penny Gordon-Larsen, ‘The Nutrition Transition: Worldwide Obesity Dynamics and Their Determinants’ (2004) 28 International Journal of Obesity S2, 2.

Chapter 2: Global Governance of Food 27

Transition and dairy intensive, while being low in diversity. Nutritional concerns aside, such diets do not foster biodiversity or work to conserve underutilised 
crops, and they tend to be resource‐intensive and fossil‐fuel dependent.96  
 
Volatile Food Since  2006,  world  food  prices  have  increased  and  fluctuated,  which  has  in  turn  increased  food  insecurity  and  civil  unrest.  Prices  are  expected  to 
Prices remain highly volatile and high in the short‐term but also in the mid‐ to long‐ term due to climate change. High food prices affect the affordability of 
food for lower socioeconomic groups. The recent, dramatic increases in food prices were the result of a range of factors, including expanding biofuel 
markets, increasing speculation from investors regarding the price of agricultural commodities, macroeconomic difficulties, and poor emergency and 
price stabilisation food reserves.97 
Population By 2050, the world’s population of 7.3 billion is expected to reach 9.6 billion, and over the next 15 years an increase of one billion has been projected. 
Growth and Most of the population growth will be based in developing countries, particularly sub‐Saharan Africa. Urbanisation is expected to increase to the 
Urbanisation point that 70 per cent of the world’s population will be based in urban areas, which is up from the current 49 per cent. Rural populations including 
farming communities are expected to decline. Urban areas are encroaching on agricultural land uses. All of these factors will increase demand for 
food. The FAO projects, though this has been questioned by scholars, that food production needs to increase by 70 per cent from 2007 to 2050 and 
that current production levels in developing countries almost need to double.98 

96
Barbara Burlingame and Sandro Dernini (eds), ‘Sustainable Diets and Biodiversity: Directions and Solutions for Policy, Research and Action’ in Proceedings ofthe International Scientific
Symposium (Food and Agricultural Organization, 2010) 307.
97
‘Grain Reserves and the Food Price Crisis: Selected Writings from 2008-2012’ (Institute for Agriculture and Trade Policy, June 2012)
<http://www.iatp.org/files/2012_07_13_IATP_GrainReservesReader.pdf>.
98
‘How to Feed the World 2050: Global Agriculture towards 2050’ (UN High Expert Forum, Food and Agricultural Organization of the United Nations, October 2009)
<http://www.fao.org/fileadmin/templates/wsfs/docs/Issues_papers/HLEF2050_Global_Agriculture.pdf>. ‘World Population Prospects: Key Findings & Advance Tables’ (2015 Revision
ESA/P/WP.241, Department of Economic and Social Affairs of the United Nations Secretariat, Population Division, 2015)
<http://esa.un.org/unpd/wpp/Publications/Files/Key_Findings_WPP_2015.pdf>.

28 Chapter 2: Global Governance of Food

Resource Resource scarcity, particularly in land, fresh water, energy and genetic materials, is a large issue for food production. Agriculture is the principal user 
scarcity and of fresh water and a main cause of surface and groundwater degradation. It is also the largest land use on Earth and a leading cause of soil 
Pollution degradation and deforestation. Agricultural chemicals and other synthetic inputs used in food production pollute waterways and air leading to a 
variety of significant environmental and public health harms.99  

Corporate Global food production, and in fact food chains more broadly, are dominated by a few transnational corporations. Chemical companies are now the 
Concentration main commercial seed companies and the same companies that buy agricultural commodities also mill, ship, sell it as feed for livestock or turn it into 
cereal. This is an issue for farmers and consumers, as it may and perhaps already has, lead to competition issues.100   
Diversity in the components of agricultural ecosystems is critical for food production, the development of new varieties and for adapting to climate 
change. Only 30, of the 30 000 edible plant species, are used to feed the world, which suggests that local or traditional varieties are highly 
Biodiversity Loss underutilised and underdeveloped.101 Overall, 75 per cent of the world’s food is generated from only 12 plants and five animal species.102 

Animal Welfare Practices such as concentrated feeding lots, slaughtering systems and the exporting of live animals have raised considerable animal welfare and food 

and Livestock safety concerns. Likewise, the environmental impact of producing meat is especially high, particularly when compared to crops.103  
Production

Food safety Approximately 351 000 people worldwide die from food poisoning each year and there are around 582 million reported cases.104 Food production can 

lead to unsafe food if during production there was an improper or excessive use of agricultural chemicals and antibiotics or if the soil or water used 
issues
was contaminated. The way in which food production has changed to become more industrial and part of globalised networks has increased food 
safety risks.105 

Table 2.1 Summary of Issues and Challenges facing Food and Agriculture

99
See, eg, Giovannucci et al, above n 6.
100
‘Trade Reforms and Food Security: Conceptualizing the Linkages’, above n 67, 9.
101
Seeds Food and Agriculture Organization of the United Nations <http://www.fao.org/seeds/en/>.
102
‘Women: The Key to Food Security’ (Food and Agriculture Organization, 1999) <http://www.fao.org/docrep/x0171e/x0171e00.htm#TopOfPage>.
103
See, eg, Henning Steinfeld et al, ‘Livestock’s Long Shadow: Environmental Issues and Options’ (The Livestock, Environment and Development (LEAD) Initiative, Food and Agriculture
Organisation, 2006) <ftp://ftp.fao.org/docrep/fao/010/a0701e/a0701e00.pdf>.
104
‘Foodborne Diseases Burden Epidemiology Reference Group 2007-2015’ (Volume 1, World Health Organization, 3 December 2015)
<http://www.who.int/foodsafety/publications/foodborne_disease/fergreport/en/>.
105
See, eg, WHO Global Strategy for Food Safety: Safer Food for Better Health (2002) World Health Organization <http://apps.who.int/iris/bitstream/10665/42559/1/9241545747.pdf >.
Diana Stuart, ‘The Illusion of Control: Industrialized Agriculture, Nature, and Food Safety’ (2008) 25(2) Agriculture and Human Values 177.

Chapter 2: Global Governance of Food 29

30 Chapter 2: Global Governance of Food
2.3 INTERNATIONAL CONTEXT

Food and agriculture have a history of being shaped by international relations

and global markets. This section briefly explains the historical and contemporary
context in order to inform the analysis of the current regulatory framework for food
production.106

2.3.1 International Food and Agriculture before the 20th Century

One of the most significant developments in human history was the
domestication of plants and animals for the generation of surplus food, which began
around 10 000 years ago.107 It gave humankind the ability to develop in areas other
than hunting and gathering their own food, such as the ability to pursue social,
creative or philosophical pursuits. The many and varied agricultural revolutions
fundamentally changed human relationships with each other, the environment and
animals.108

During colonisation, European colonial powers required those in their empires

to specialise in producing and exporting raw agricultural products, predominantly
wheat and meat, to the European community.109 Developed countries furthered their
wealth and created space for their industrial development through the exploitation of
the natural resources of their colonies.110 Today the on-going dependency in

106
This summary follows the food regime concept systematically formulated in Harriet Friedmann
and Philip McMichael, ‘Agriculture and the State System: The Rise and Decline of National
Agricultures, 1870 to the Present’ (1989) 29 Sociologia Ruralis 93 where the authors historically
analyse the ways in which food and global power and political arrangements are linked. For the main
follow-up work using the food regime concept, see eg, Harriet Friedmann, ‘From Colonialism to
Green Capitalism: Social Movements and Emergence of Food Regimes’ (2005) 11 Research in Rural
Sociology and Development 227; Harriet Friedmann, ‘Food Politics New Dangers New Possibilities’
in Philip McMichael (ed), Food and Agrarian Orders in the World-economy (Greenwood Publishing
Group, 1995) 15; David Burch and Geoffrey Lawrence, ‘Towards a Third Food Regime: Behind the
Transformation’ (2009) 26 Agriculture and Human Values 267; Philip McMichael, ‘World Food
System Restructuring under a GATT Regime’ (1993) 12 Political Geography 198; Philip McMichael,
‘A Food Regime Genealogy’ (2009) 36 The Journal of Peasant Studies 139.
107
See generally, Estelle Levetin and McMahon Karen, Plants and Society (McGrawHill, 5th edition,
2008) 278 ch 11.
108
For more information on the agricultural revolution, see eg, Graeme Barker, The Agricultural
Revolution in Prehistory: Why Did Foragers Become Farmers? (Oxford University Press, 2006).
109
See, eg, Friedmann, ‘From Colonialism to Green Capitalism’, above n 105.
110
Dinah Shelton, ‘Equity’ in Daniel Bodansky, Jutta Brunnée and Ellen Hey (eds), The Oxford
Handbook of International Environmental Law (Oxford University Press, 2008) 640, 656.
developing countries on cash crops to satisfy a broad range of human development
needs is described as a ‘legacy of colonialism’.111

2.3.2 Structural Changes to Food and Agriculture in the 20th Century

Following decolonisation, and in the 20th century, the United States of America
(US) further globalised and commodified food through its emphasis on the mass
production and consumption of standardised, long-lasting food products.112 With the
help of domestic support measures, the US government and its transnational
corporations (TNCs) promoted and spread the uptake of US farming and Western
dietary preferences.113

Post-Second World War, the US began what is seen as a twenty-year control of

food aid.114 The US was able to export food at concessional prices to developing
countries, which in turn helped the US deal with the domestic over-production of
food that had resulted from payments and other domestic supports to farmers that
were connected to how much was produced.115 However, the provision of food aid,
while positive for short-term food security, had adverse impacts on the ability of
developing countries to form their own agricultural systems.116 The dumping of
surplus grains disguised as food aid by the US and other developed countries has
significantly declined, but still remains an issue today.117

Of all the agricultural revolutions, the Green Revolution is particularly

significant as it promoted worldwide the industrial forms of agriculture that are
dominant today. The Green Revolution refers to a series of initiatives formulated by
international institutions and developed states (particularly the US) from
approximately the 1940s to the 1970s. These initiatives focused on research and
development and technology transfer programmes that would increase agricultural

111
Duncan Alfreds, Colonialism Legacy ‘Haunts’ Food Production (6 December 2011) Worldwatch Institute
<http://www.worldwatch.org/system/files/Colonialism-legacy-haunts-food-production-News-24.pdf>.
112
Friedmann and McMichael, above n 105, 103–105.
113
McMichael, ‘A Food Regime Genealogy’, above n 105, 146.
114
Harriet Friedmann, ‘The Political Economy of Food: A Global Crisis’ [1993] New left review 29,
37–38.
115
McMichael, ‘A Food Regime Genealogy’, above n 37, 145 where the author explains ‘...the
postwar “development project” projected a national development model into the postcolonial world.
At the same time, food aid provisioned urban labour forces with cheap food, stimulating
industrialisation and promoting food dependency in the longer run’.
116
For an overview, see, Jennifer Clapp, Hunger in the Balance: The New Politics of International
Food Aid (Cornell University Press, 2012) 1.
117
Ibid 25.
production, especially in developing states.118 The Green Revolution increased the
use of and access to high-yielding varieties (largely rice and wheat), irrigation
equipment and inputs, including irrigation, fertilizers, pesticides and other chemical
inputs.119

The Green Revolution has been painted as either a miracle that saved hundreds
of millions of lives from famine or as a global injustice that aggravated pre-existing
inequalities while weakening the potential for structural change.120 On the one hand,
the population of low-income states almost doubled from 1966 to 2000, yet food
production increased by 125 per cent due to the Green Revolution.121 On the other
hand, the impacts of industrial agriculture and its documented effect of the worsening
of pre-existing inequalities illustrates that the Green Revolution’s contribution to
long-term food security is not as profound or positive as its proponents originally
suggested.122

In the late 20th century, at the close of the Green Revolution, food and
agricultural systems were restructured through market liberalisation programmes and
the transition from communism to capitalism in various regions.123 This led to
changes in how people accessed food, the types and amount of food being produced,

118
See, eg, Peter Hazell, ‘Green Revolution: Curse or Blessing?’ (Brief, International Food Policy
Research Institute, 2000) <http://www.ifpri.org/sites/default/files/pubs/pubs/ib/ib11.pdf>.
119
Ibid.
120
See, eg, Clark Spencer Larsen, ‘The Agricultural Revolution as Environmental Catastrophe:
Implications for Health and Lifestyle in the Holocene’ (2006) 150 Quaternary International 12 where
the authors explored the impact of agriculture on nutrition; See also, Richard Manning, Against the
Grain: How Agriculture Has Hijacked Civilization (Paw Prints, 2008) where Manning critqued the
agricultural revolution. In fact the negative impacts of the Green Revolution on surrounding
ecosystems and the commentary that followed was the catalyst for the Western environmental
movement and environmental law. Specifically, the environmental science book entitled Silent Spring
about the adverse effects of pesticides was a significant contribution to environmental activism.
Rachel Carson, Silent Spring (Houghton Mifflin Harcourt, 2002); Eliza Griswold, ‘How “Silent
Spring” Ignited the Environmental Movement’ The New York Times, 21 September 2012
<http://www.nytimes.com/2012/09/23/magazine/how-silent-spring-ignited-the-environmental-
movement.html>.
121
Gurdev S Khush, ‘Green Revolution: The Way Forward’ (2001) 2 Nature Reviews Genetics 815.
122
The FAO has suggested that the Green Revolution negatively affected female-headed households
as it reduced jobs in agriculture and women struggled to access the inputs. ‘Women: The Key to Food
Security’, above n 101. Likewise, in Donald Freebairn, ‘Did the Green Revolution Concentrate
Incomes? A Quantitative Study of Research Reports’ (1995) 23 World Development 265 the author
concluded that 80 per cent of studies examining the Green Revolution from 1970-1989 found that
inequality had increased between farms and regions as a result of the Green Revolution.
123
See, eg, William Liefert and Johan Swinnen, ‘Changes in Agricultural Markets in Transition
Economies’ (Agricultural Economic Report No. (AER-806), United States Department of Agriculture,
Economic Research Service, 28 December 2012) 46 <http://www.ers.usda.gov/publications/aer-
agricultural-economic-report/aer806.aspx>.
and the ways in which farms are owned and managed. These changes were partly
driven by structural adjustment programmes in the 1980s,124 enforced by
international finance institutions, as well as the inclusion in 1994 of agriculture in the
world trade regime.125 These events curtailed government intervention in food and
agriculture, and led to the expansion of agricultural TNCs.126 As a result, food and
agriculture systems have increasingly been determined and shaped by the world
market.127

2.3.3 International Food and Agriculture in the 21st Century

2.3.3.1 Role of private actors
TNCs are now highly influential actors in agriculture and food, especially as
they remain largely unregulated at the international level. As an example, three
TNCs control more than half of the global commercial market for seed, four TNCs
control up to 90 per cent of the global grain trade, six TNCs control 80 per cent of
global pesticides market, and five TNCs control over 80 per cent of the global trade
in bananas.128 The power and concentration of agricultural TNCs calls into question
the competitiveness of the world market for food.

124
Structural adjustment programs are conditional loans provided by the World Bank and the IMF to
developing countries. The condition is that these countries adopt the economic policies that the World
Bank and the IMF suggest. The economic policies that the World Bank and the IMF promote tend to
be neo-liberal in nature. At Structural Adjustment Programmes (SAPs) (2016) World Health
Organization <http://www.who.int/trade/glossary/story084/en/>. The World Health Organization
explains that the economic policies often involve cuts to public spending, reduction in taxes to high-
income earners, privatisation, increased free trade and lower tariffs on imports.
125
Nora McKeon, ‘Global Governance for World Food Security: A Scorecard Four Years after the
Eruption of the “Food Crisis”’ (Heinrich-Böll-Stiftung, October 2011) 4
<https://www.boell.de/sites/default/files/Global-Governance-for-World-Food-Security.pdf> explains
that ‘…from the early 1980s on, the structural adjustment regimes imposed onto debt-ridden
developing countries by the World Bank and the International Monetary Fund drastically curtailed the
policy decision-making space of national governments, opened up the markets of developing
countries, and cut back severely on state support to and regulation of agriculture. The creation of the
WTO (1995) and the promulgation of global trade regulations did the rest’.
126
See, eg, Philip H Howard, ‘Visualizing Consolidation in the Global Seed Industry: 1996–2008’
(2009) 1 Sustainability 1266; Carlos A Monteiro and Geoffrey Cannon, ‘The Impact of Transnational
“Big Food” Companies on the South: A View from Brazil’ (2012) 9 PLoS Medicine
<http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3389019/>.
127
See, eg, Jagjit Kaur Plahe, Shona Hawkes and Sunil Ponnamperuma, ‘The Corporate Food Regime
and Food Sovereignty in the Pacific Islands’ (2013) 25 Contemporary Pacific 309.
128
Sophia Murphy, David Burch and Jennifer Clapp, ‘Cereal Secrets: The World’s Largest Grain
Traders and Global Agriculture’ (Oxfam Research Reports, Oxfam International, August 2012) 78
<http://www.oxfam.org/sites/www.oxfam.org/files/rr-cereal-secrets-grain-traders-agriculture-
30082012-en.pdf>; ‘Who Will Control the Green Economy?’ (107, ETC Group, 1 November 2011)
60 <http://www.etcgroup.org/content/who-will-control-green-economy-0>; ‘Addressing the Global
Food Crisis: Key Trade. Investment and Commodity Policies in Ensuring Sustainable Food Security
 The FAO explained that:

A small number of companies now dominate each part of the food chain in
OECD countries. Chemical companies (now lead players in the seed
business) are increasingly linked to grain traders and food processors in the
production chain. The same companies buy, ship, and mill grain, and then
feed it to livestock or turn it into cereal, often crossing several national
borders in the process.129

In addition, the expansion and consolidation of global supermarkets has led to

the retail sector having a strong influence in ‘what, where and how food is produced
and consumed around the globe’.130 The pressures supermarkets place on producers
in relation to price and standards are well documented.131 For instance, Brown and
Sander observed:

To stay competitive, farmers have to supply larger volumes per client and
transaction; they have to compete with farmers around the country or region
rather than just the local area; and they have to meet the supermarkets’
stringent product quality standards.132

In order to stay in the market then, farms must be able to produce large
volumes of food to a similar standard, which inevitably squeezes out small-scale
farmers and/or more diversified, ecological farming models.133

The balance of public and private investments into agricultural research and
development further exemplifies the expanding role of TNCs in world food and

and Alleviating Poverty’ (United Nations Conference on Trade and Development, United Nations,
2008).
129
‘Trade Reforms and Food Security: Conceptualizing the Linkages’, above n 67, 9.2.
130
Libby Hattersley and Jane Dixon, ‘Supermarkets, Food Systems and Public Health: Facing the
Challenges’ in Food Security, Nutrition and Sustainability (Taylor & Francis, 2013) 188, 188.
131
See, eg, Corinna Hawkes, ‘Dietary Implications of Supermarket Development: A Global
Perspective’ (2008) 26 Development Policy Review 657; Thomas Reardon et al, ‘The Rise of
Supermarkets in Africa, Asia, and Latin America’ (2003) 85 American Journal of Agricultural
Economics 1140.
132
Oli Brown and Christina Sander, ‘Global Supply Chains and Smallholders Farmers: Supermarket
Buying Power’ (International Institute for Sustainable Development, 2007) 6
<http://www.iisd.org/tkn/pdf/tkn_supermarket.pdf>.
133
See, eg, Hans Binswanger-Mkhize and Alex F McCalla, ‘The Changing Context and Prospects for
Agricultural and Rural Development in Africa’ in Robert E Evenson and Prabhu Pingali (eds),
Handbook of Agricultural Economics (Elsevier, 2010) vol 4, 3573, 3617–3623 where the authors
briefly outlined the history of world food prices from 1960s.
agriculture.134 As private investment has increased in developed countries, public
investment has declined or remained the same.135 Meanwhile, China, India and
Brazil have increased their public investment into research and development and now
make up 83 per cent of developing countries’ total research and development
spending. These trends suggest a lack of investment in agriculture for food security
in other developing countries. Furthermore, developing countries do not attract much
finance for agricultural research and development from private actors. Pardey et al
explained that:

By 2000, roughly one-third of the $36.9 billion total investment in

agricultural research worldwide was by private firms. But little of this
research took place in developing countries. The overwhelming majority was
conducted in developed countries ($12.6 billion, or more than 90 percent of
the global total).136

Overall then, public investment in agriculture in terms of monetary value is

concentrated in rich and middle income countries and private investment is largely
limited to the agricultural sectors of developed countries.137

2.3.3.2 World food price crises

The various food price crises in recent years have highlighted the increased
dependence on international food markets for food security. Previously, the price of
food has been in decline due to the high levels of food being produced in particular
countries.138 Food prices for basic agricultural commodities dramatically increased in

134
Note that the studies referred to in this paragraph are based on data from 2000, which is
unfortunately the most recent year of agricultural research and development data.
135
See, eg, Jennifer S James, Philip G Pardey and Julian M Alston, ‘Agricultural R&D Policy: A
Tradgedy of International Commons’ (InSTePP Paper 08-01, International Science & Technology
Practice and Policy, Department of Applied Economics: University of Minnesota, 2008)
<http://ageconsearch.umn.edu/bitstream/43094/2/SP-IP-08-01.pdf>; Julian M Alston, Philip G Pardey
and Johannes Roseboom, ‘Financing Agricultural Research: International Investment Patterns and
Policy Perspectives’ (1998) 26 World Development 1057.
136
Philip G Pardey, Julian M Alston and Roley Piggott, ‘Shifting Ground: Agricultural R&D
Worldwide’ (International Food Policy Research Institute, 2006) 5
<http://cdm15738.contentdm.oclc.org/utils/getfile/collection/p15738coll2/id/38632/filename/38627.p
d>.
137
Philip Pardey et al, ‘Global Agricultural Trends: Impact and Role for Australian Agricultural and
Agronomic Research’ (Australian Society of Agronomy Conference, 2008) 2
<https://www.researchgate.net/profile/Jawoo_Koo/publication/228799676_Global_agricultural_trends
_impact_and_role_for_Australian_agricultural_and_agronomic_research/links/0deec51c327af663320
00000.pdf>.
138
In fact, food prices declined from the early 1960s until 2002, except for a peak in the early 1970s.
The cause for this decline is the Green Revolution that increased the production of food, as well as the
2006 and 2007 until they spiked in June 2008. Food prices rose by 83 per cent from
February 2005 to February 2008.139 According to reports at the time, soy prices had
increased by 87 per cent, rice by 74 per cent and wheat by 130 per cent in 2008
compared to 2007 levels.140 The price rise in this period is referred to as the ‘World
Food Price Crisis’ or the ‘World Food Crisis’ and it sparked civil unrest in various
developed and developing countries.141 Food prices remained far higher than years
previous throughout 2009-2010 and prices actually exceeded the 2008 peak in
February 2011.142

A number of factors have contributed to the fluctuations in food prices. For

instance, the drivers of the 2007-2008 food price increases include:

 Various weather shocks;

 Resource scarcity;

 Underinvestment in rural infrastructure;

 Policies to promote biofuels;

 Increases in production costs, particularly the prices of petroleum and

fertiliser;

 Increases in speculation in commodity future markets as a result of the

financial crisis (investors seeking to diversify);

 Trade policies that acted as export bans or import subsidies.143

dumping of food on markets from the US and other countries that over-produced food. ‘Food Aid or
Hidden Dumping?’ (Oxfam Briefing Paper 71, Oxfam International, March 2005) 20
<https://www.oxfam.org/sites/www.oxfam.org/files/bp71_food_aid.pdf>.
139
‘Rising Food Prices: Policy Options and World Bank Response’ (World Bank, 2008) 1.
140
‘Q&A: World Food Prices’ BBC, 15 October 2008
<http://news.bbc.co.uk/2/hi/business/7340214.stm>.
141
Thomas O’Brien, ‘Food Riots as Representations of Insecurity: Examining the Relationship
between Contentious Politics and Human Security’ (2012) 12 Conflict, Security & Development 31;
Ray Bush, ‘Food Riots: Poverty, Power and Protest’ (2010) 10 Journal of Agrarian Change 119.
142
‘The Global Social Crisis: Report on the World Social Situation 2011’ (United Nations, 2011) 61
<http://www.un.org/esa/socdev/rwss/docs/2011/overview.pdf>.
143
See, eg, ‘Addressing the Global Food Crisis: Key Trade. Investment and Commodity Policies in
Ensuring Sustainable Food Security and Alleviating Poverty’, above n 127.‘The State of Food
Insecurity in the World 2011: How Does International Price Volatility Affect Domestic Economies
and Food Security’ (FAO, 2011) 11–18 <http://www.fao.org/docrep/014/i2330e/i2330e03.pdf>.
 Although some of these factors will change over time (e.g. biofuel policies),
other issues such as climate change will persist. Consequently, it is projected that
food prices will remain substantially higher than prices from 1997-2006 and
volatile.144

In terms of the impact of these fluctuating food prices, the World Bank
reported that since June 2010 an extra 44 million people have fallen below the USD
1.25 poverty line due to higher food prices.145 The number of food insecure people
according to the FAO increased by 100 million in 2008.146 Broadly speaking, the
worst affected were the poorest households who spend the largest proportion of their
income on food, while small-scale farmers were generally unable to benefit due to
persistent market access barriers.147

2.3.4 Public International Institutions in the Global Governance of Food and

Agriculture
This section briefly outlines the main public international institutions involved
in the governance of food and agriculture, as these actors will be referred to
throughout in relation to specific regulatory instruments.

The global governance of food and agriculture involves public and private
entities creating informal and formal regulatory tools in their individual, institutional
capacity and through collaborative processes.148 Public and private institutions that
influence food and agriculture commonly take one of the following forms: a UN
agency or body, an international agricultural research organisation, an inter-

144
‘OECD-FAO Agricultural Outlook 2013-2022’ (OECD; FAO, 2013)
<http://www.oecd.org/berlin/OECD-FAO%20Highlights_FINAL_with_Covers%20(3).pdf>.
145
Food Price Watch (2011) The World Bank
<http://www.worldbank.org/foodcrisis/foodpricewatch/april_2011.html>.
146
‘The State of Food Insecurity in the World 2008: High Food Prices and Food Security-Threats and
Opportunities’ (Food and Agricultural Organization of the United Nations, 2008)
<ftp://ftp.fao.org/docrep/fao/011/i0291e/i0291e00.pdf>.
147
For a useful overview of impacts related to the 2007-2008 price spike, see, Julia Compton, Steve
Wiggins and Sharada Keats, ‘Impact of the Global Food Crisis on the Poor: What Is the Evidence?’
(Overseas Development Institute; UKAid from the Department for International Development, 2010)
<http://www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinion-files/6371.pdf>.
148
Because there is no central global government at the international level as there is in countries,
global governance involves a variety of interdependent actors creating formal and informal
mechanisms to influence outcomes. Weiss and Thakur described global governance as the: ‘Existing
collective arrangements to solve problems…the sum of laws, norms, policies and institutions that
define, constitute and mediate relations among citizens, society and markets, and the state in the
international area’. See, Thomas G Weiss and Ramesh Thakur, Global Governance and the UN: An
Unfinished Journey (Indiana University Press, 2010) 5–6.
governmental organisation, an international financial institution (eg investment
group, world bank), civil society, a TNC, a private sector association or a private
philanthropic foundation. As the focus here is on public international institutions,
only these actors will be outlined in detail.

2.3.4.1 Rome-based agencies

Before the 2007-2008 Global Food Price Crisis, the main public international
institutions in the area of food and agriculture were specialist UN agencies. These
institutions include the FAO, the International Fund for Agriculture and
Development (IFAD) and the World Food Programme (WFP). All three of these
institutions are based in Rome, share the common goal of reducing food insecurity
and collaborate on particular programs.

The FAO is a specialised UN agency with 194 member nations.149

Representatives of member nations review global governance issues, evaluate the
work of the FAO and elect new leaders for the agency. The FAO’s main activity is
collecting, analysing, interpreting and disseminating information that relates to
nutrition, food and agriculture.150 It also provides technical assistance to
governments upon request, and has the role of helping to action its
recommendations.151

The overarching objective of the FAO is to achieve food security for all
through the eradication of food insecurity, the improvement of socioeconomic
conditions and the sustainable use and management of natural resources for present
and future generations.152 Although the work of the FAO is indispensable to the
international regulation of agriculture, the agency is restricted by the fragmented
nature of international law and by political considerations. As observed by
Thampapillai, ‘Many of the policy responses articulated by the FAO seek to work

149
About FAO (13 March 2015) Food and Agriculture Organization of the United Nations
<http://www.fao.org/about/en/>.
150
Basic Texts of the Food and Agriculture Organization of the United Nations, vols I-2, 2013 ed, art
1(1)-(2).
151
Ibid art 1(3).
152
About FAO, above n 148.
“within” the established legal architecture and economic system’.153 In other words,
the FAO does not directly criticise the ways in which other international actors, such
as the World Trade Organization, regulate agriculture.

The IFAD is also a specialised agency of the UN. Unlike the FAO, the IFAD is
an international financial institution. IFAD’s goal is to ‘enable poor rural people to
improve their food and nutrition security, increase their incomes and strengthen their
resilience’.154 It makes progress towards this goal in numerous ways, but its main
function is the provision of financial support to projects that assist rural people to
raise their standards of living.

The WFP is the UN's food aid programme that provides food to people in
emergency situations and during rehabilitation. Significantly, the WFP’s ultimate
objective is to eliminate the need for food aid. As a result, the WFP not only carries
out short-term food security measures, but also helps create and carry out disaster-
preparedness activities, development projects and other resilience-building activities
that contribute to long-term food security goals.

2.3.4.2 Committee on world food security

The Global Food Price Crisis in 2007-2008 drew attention to the disordered
regulatory and governance frameworks for international food security. Critics alleged
that the current framework was incapable of effectively responding to food security
challenges.155 Accordingly, a number of institutions were developed or reformed to
improve coordination between institutions and enhance the coherency and
effectiveness of food and agriculture governance.156 Perhaps the key international

153
Dilan Thampapillai, ‘The Food and Agriculture Organization and Food Security in the Context of
International Intellectual Property Rights Protection’ in Hitoshi Nasu and Kim Rubenstein (eds),
Legal Perspectives on Security Institutions (Cambridge University Press, 2015) 25.
154
International Fund for Agriculture and Development, IFAD at a Glance (31 December 2014)
<http://www.ifad.org/pub/brochure/ifadglance.pdf>.
155
See, eg, Directorate-General of Global Affairs for France’s Ministry of Foreign Affairs, The Global
Partnership for Food Security (2010)
<http://www.diplomatie.gouv.fr/fr/IMG/pdf/Securite_alimentaire_v_anglaise_web-2_cle04224b.pdf>
3-5.
156
Key, recent institutional developments at an international level were the creation of the UN High
Level Task Force on the Global Food Security Crisis created to coordinate UN-wide approaches to
food security; reform of the Committee on World Food Security, and the engagement of G-20 leaders
in global food security issues. For information regarding the High Level Taskforce, see, eg, The
Secretary General’s High Level Task Force on the Global Food Security Crisis (2008)
<http://www.un.org/en/issues/food/taskforce/>. For information regarding G-20 leaders and their
involvement in food security issues see the “L’Aquila” Joint Statement on Global Food Security
institutional development was the reform of the Committee on World Food Security
(CFS) led by the FAO.

The CFS was originally formed in 1974 as an intergovernmental body to

review UN policies related to food security. In 2009, the 127 member states to the
CFS agreed that the committee should be the main international forum for food
security policy.157 In other words, the CFS is designed to be the main medium
through which food and agriculture decision-making is conducted at the international
level.158 As part of this process, the CFS was restructured to become a more inclusive
medium. Currently, a wide range of stakeholders working in the area of agriculture,
food, nutrition and food security take part in the CFS as participants, members or
observes.159

Participants of the CFS include:

 Representatives of UN agencies and bodies in the area of food security and

nutrition (eg the Rome-based agencies) or in an area related to attaining
food security and nutrition (eg United Nations Development Program);

 Civil society organisations and NGOs;

 International agricultural research groups (eg the Consultative Group on

International Agricultural Research);

L’Aquila Food Security Initiative, G8 Summit in L’Aquila (10 July 2009) [12] where the G-20 parties
supported the decision of the G-8 to provide $20 billion to food security initiatives. Since this time,
the G-20 has established a number of regulatory interventions in the global food system, and these
include the funding of various farming initiatives and monitoring frameworks for agricultural markets.
See, eg, G20 Leaders’ Communiqué Brisbane Summit 15-16 November 2014, Annex 1, G-20 Food
Security and Nutrition Framework (November 2014). The role of the G-20 in food and agriculture
governance is significant because, as Murphy explained, the countries in the G-20 are ‘…home to
roughly half of all those living in chronic hunger…and accounts for 65% of all agricultural land, 77
per cent of global cereal production and 80% of world trade in agricultural products’. See, Sophie
Murphy, ‘The G-20 and Food Security: What is the right agenda?’, Policy Analysis Brief, The Stanley
Foundation (March 2013) Iowa, USA, 3.
157
Reform of the Committee on World Food Security, UN Doc CFS: 2009/2 Rev.2, 35th sess, Agenda
Item III (October 2009)
<http://www.fao.org/fileadmin/templates/cfs/Docs0910/ReformDoc/CFS_2009_2_Rev_2_E_K7197.p
df>.
158
Ibid where the CFS describes itself as ‘the central UN political platform dealing with food security
and nutrition’ at para 2 and as ‘[t]he foremost inclusive international and intergovernmental platform
for a range of committee stakeholders to work together in a coordinated manner…’ para 4
159
Ibid para 3.
  International and regional finance institutions (World Bank, World Trade
Organization, IMF);

 Private sector associations and private philanthropic foundations.

It was particularly significant that the reformed CFS sought to include civil
society organisations and NGOs. Duncan and Barling observed:

Their inclusion in the Committee and its activities presents opportunities for
more meaningful and active engagement in the procedures and debates
leading up to the final decision-making in the CFS, while final voting
authority remains with nation states.160

The CFS in particular seeks the participation of organisations that represent

groups most at risk of being food insecure, including small-scale farmers, landless
people, the urban poor and indigenous groups.161 This marked the first time in history
that representatives of food insecure groups could debate and help formulate policy
where they had previously at most been observers.162

In terms of members, any state that is a member of the UN can become a

member of the CFS and each state holds one vote. The CFS adopts decisions after
consensus is reached among member states. Meanwhile, observers are any other
interested stakeholders that are invited by the CFS to observe its sessions.

The CFS’s functions have also expanded to include the promotion of policy
convergence and the coordinator of a global approach to food-related issues.163
Stemming from negotiations with participants and members, the CFS developed the
Global Strategic Framework for Food Security and Nutrition (GSF). This framework
acts as a comprehensive roadmap for stakeholders in terms of recommendations for
programmes, decision-making and policies.164 Functionally, the document seeks to

160
Jessica Duncan and David Barling, ‘Renewal through Participation in Global Food Security
Governance: Implementing the International Food Security and Nutrition Civil Society Mechanism to
the Committee on World Food Security’ (2012) 19 International Journal of the Sociology of
Agriculture and Food 143, 144.
161
Committee on World Food Security, above n 68, para 11.
162
See, Nora McKeon, FAO: A Food Battle Won (22 October 2009) La Via Campesina: The
International Peasants Movement <http://viacampesina.org/en/index.php/main-issues-mainmenu-
27/food-sovereignty-and-trade-mainmenu-38/779-fao-a-food-battle-won>.
163
Ibid.
164
Committee on World Food Security (2014) Global Strategic Framework for Food Security and
Nutrition
< http://www.fao.org/fileadmin/templates/cfs/Docs1314/GSF/GSF_Version_3_EN.pdf>.
build consistency in the actions taken in the areas of food and nutrition at national,
regional and international levels. It emphasises the need to improve the sustainability
of agriculture, increase private and public funding and better coordinate and release
agricultural market information.165

Improved coordination among food-related institutions stemming from the

reform of the CFS is a positive development for global food and agriculture
governance. It is too early to determine whether the CFS is filling the governance
gap at the international level by providing a comprehensive and coordinated
approach.166 To date, the CFS has endorsed or led the creation of a four major policy
documents (including the GSF) that are referred to as frameworks or guidelines and
around 11 policy recommendations.167 These instruments deal with a range of issues,
including gender, land tenure, price volatility, and the environmental issues facing
food security. More broadly, the CFS has provided a model for the kinds of
platforms that could be developed to allow for the participation of civil society
organisations in international policy formation.168

2.3.4.3 Other international institutions

Food and Agricultural governance is also spread across a range of institutions
that directly and indirectly address food insecurity. The World Health Organization
formulates nutritional and food safety standards, surveys nutritional trends and
disseminates information and guidance to inform domestic policies. Meanwhile,
international courts and arbitration panels provide forums for dealing with food and
agricultural issues. For instance, the World Trade Organization’s Dispute Resolution
Bodies often deal with agricultural trade disputes between countries. Meanwhile, the
World Bank and the International Monetary Fund are significant for their
involvement in grants and loans related to agriculture.

165
Ibid.
166
Jennifer Clapp, ‘Food and Hunger’ in Thomas G Weiss and Rorden Wilkinson (eds), International
Organization and Global Governance (Taylor and Francis, 2013) 644, 653.
167
Products (2015) Committee on World Food Security <http://www.fao.org/cfs/cfs-
home/products/en/>.
168
For a useful summary and critique of the CFS and its civil society participation, see Josh Brem-
Wilson, ‘Towards Food Sovereignty: Interrogating Peasant Voice in the United Nations Committee on
World Food Security’ (2015) 42 The Journal of Peasant Studies 73.
2.4 AGRICULTURAL POLICY FOR FOOD SECURITY: DOMINANT
AND ALTERNATIVE FRAMES

Two conflicting approaches have been pitted against each other in debates
about how to respond to, research and regulate agriculture for food security. The first
approach, termed the ‘dominant frame’ for our purposes, centres on industrial
agriculture, trade liberalisation and increasing the production of food. This approach
is highly influential and prevalent in international and national politics and policy
discourses. The second approach, the ‘alternative frame’, has arisen in response to
the issues with the dominant approach and it focuses on agroecology, small- and
mid-scale farms and localised food systems.169 The latter approach is gaining traction
in the international policy space and within some countries.170 While general themes
and points can be taken from these two major poles, the complex realities on the
ground mean that these frames are only a guide for analysis.

2.4.1 Dominant Frame - Industrial Agriculture

2.4.1.1 Perspective on food security
The dominant frame adopts a productivist approach, which places economic
growth as the primary goal and measure of progress. In the context of agriculture,
Lowe et al explained that ‘By productivism, we mean a commitment to the intensive,
industrially driven and expansionist agriculture with state support based primarily on
output and increased productivity’.171

The dominant frame positions industrial agricultural systems as the main way
to address food insecurity, because such systems are more efficient, in terms of the
amount of employees needed and in relation to land costs, at producing large
amounts of food.

169
These frames were identified in Marta Rivera-Ferre, ‘Framing of Agri-Food Research Affects the
Analysis of Food Security: The Critical Role of the Social Sciences’ (2012) 19 International Journal
of Sociology of Agriculture and Food 162 but are referred to as official and alternative frames.
170
The fact that there is a debate between industrial and more sustainable methods of agriculture and
that these are connected to particular understandings of food security is clear in the literature and
institutional reports. A few scholars have outlined the two frames in a comprehensive way. See
especially, ibid; John Thompson and Ian Scoones, ‘Addressing the dynamics of agri-food systems: an
emerging agenda for social science research’ (2009) 12 Environmental Science & Policy 386; L G
Horlings and T K Marsden, ‘Towards the Real Green Revolution? Exploring the Conceptual
Dimensions of a New Ecological Modernisation of Agriculture That Could “feed the World”’ (2011)
21 Global Environmental Change 441.
171
See, Lowe et al, ‘Regulating the new rural spaces: the uneven development of land’ (1993) 9(3)
Journal of Rural Studies 205, 221.
 Proponents tend to stress the food availability limb of food security and equate
food security with the quantities of food produced.172 As a result, food insecurity
tends to be seen as an issue for developing countries where the production potential
is more limited.173 Likewise, obesity is depicted as an individual’s failure to take
personal responsibility not as a symptom of food insecurity or a consequence of
overproduction.174 In this frame, small-scale, ecologically based agricultural methods
are anti-scientific, increasingly irrelevant and incapable of feeding the growing
population, especially in a changing climate.175

2.4.1.2 Industrial agriculture

Industrial agriculture encompasses a range of methods to intensively produce
livestock, poultry, fish and crops. Although methods and their impacts can be
associated with industrial agriculture in a general sense, at the farm level significant
variations exist between farms and their environmental impact. Nevertheless,
industrial agriculture usually incorporates one of the following agricultural practices:

172
For instance, in 2013, a US-based NGO, the Chicago Council, released a report stemming from a
consultation it hosted with 15 food and agricultural experts from government, businesses and
international organisations. The report summarised some of the dominant ideologies related to food
production and security when it explained:
Global food security is advanced when scientists help hungry regions such as Sub-Saharan
Africa and South Asia maximize their agricultural potential. These regions are agriculture’s
last untapped frontiers. Their isolation from science and productivity-enhancing methods —
including low-technology and no-technology options — not only condemns hundreds of
millions of people to chronic hunger, it denies global markets a tremendous source of food.
‘Advancing Global Food Security: The Power of Science, Trade, and Business’ (The Chicago
Council on Global Affairs: Independent Advisory Group on Global Agricultural Development, May
2013) 136
<http://www.thechicagocouncil.org/sites/default/files/2013_Advancing_Global_Food_Security%283
%29.pdf>.
173
See, eg, Michael Carolan, ‘The Food and Human Security Index: Rethinking Food Security and
“Growth”’ (2012) 19 International Journal of Sociology of Agriculture and Food 176. Note though
that the measurements and date used to calculate the agricultural production gap have various
limitations. On this point see, eg, Douglas Golin, David Lagakos and Michael E Waugh (2014) ‘The
Agricultural Productivity Gap’ 129(2) The Quarterly Journal of Economics 939
174
See, eg, Kelly D Brownell et al (2010) ‘Personal Responsibility and Obesity: A Constructive
Approach to a Controversial Issue’ 29(3) Health Affairs 379; Liselotte S Elinder (2005) ‘Obesity,
hunger, and agriculture: the damaging role of subsidies’ 331 British Medical Journal 1333.
175
See, eg, the statement by a Professor in Plant Biochemistry at the University of Edinburgh,
Anthony Trewavas in ‘The Cult of the Amateur in Agriculture Threatens Food Security’ (2008) 26
Trends in Biotechnology 475, 2. Trewavas argued, ‘All farming methods have costs and benefits, and
decisions are based on the perceived balance between these. When food is scarce, organic agriculture,
with its diminished yields, declining soil fertility, rigidity of regulation and high priced produce, is not
appropriate. The agriculture needed for the future must show flexibility, a potential to increase yields
substantially worldwide and the ability to provide good income for the farmer. Only scientific
knowledge and research can do that.’
growing a single crop variety at a large-scale (termed monoculture cropping) or
using concentrated animal feeding operations.

Whether producing livestock or crops, industrial farms are dependent on a high

number of external inputs. In this way, industrial agricultural systems use a factory-
like model with inputs (eg pesticides, hormones) and outputs (standardised food
products). Commonly used external inputs include chemical-based or synthetic
products (eg antibiotics, hormones, pesticides), intensive irrigation, commercially
bred plant varieties and agricultural machinery.176

Industrial agriculture is based on achieving economies of size and scale. This

involves spreading fixed costs (eg land and equipment) out across a large amount of
outputs (crops or livestock), thus decreasing fixed costs and increasing profit from
the sale of more products.177 Because they are mechanised, industrial agricultural
systems dramatically decrease the amount of labour needed and the knowledge and
skills required, hence labour costs are greatly reduced.

During the Green Revolution, the adverse side effects of industrial agriculture
on human and environmental health as well as on future food security were
unforeseen. However, in the time since the Green Revolution, the costs of industrial
agriculture have been realised worldwide and alternatives to industrial agriculture
have become more mainstreamed and developed.178 There are too many adverse side
effects of industrial agriculture to list them here, and instead the various impacts of
industrial practices are highlighted throughout this thesis in relation to specific

176
‘Wildlife in a Changing World: An Analysis of the 2008 IUCN Red List of Threatened Species’
(International Union for Conservation of Nature, 2008) <http://data.iucn.org/dbtw-wpd/edocs/RL-
2009-001.pdf>; Patrick Smith et al, ‘Biodiversity and Agriculture: Production Frontiers as a
Framework for Exploring Trade-Offs and Evaluating Policy’ (2012) 23 Environmental Science &
Policy 85; Flavia Geiger et al, ‘Persistent Negative Effects of Pesticides on Biodiversity and
Biological Control Potential on European Farmland’ (2010) 11 Basic and Applied Ecology 97; Alison
McLaughlin and Pierre Mineau, ‘The Impact of Agricultural Practices on Biodiversity’ (1995) 55
Agriculture, Ecosystems & Environment 201; Lori Ann Thrupp, ‘Linking Agricultural Biodiversity
and Food Security: The Valuable Role of Sustainable Agriculture’ (2000) 76 International Affairs
(Royal Institute of International Affairs 1944-) 265.
177
Michael Duffy, ‘Economies of Size in Production Agriculture’ (2009) 4 Journal of Hunger &
Environmental Nutrition 375.
178
See, eg, David Goodman, ‘Organic and Conventional Agriculture: Materializing Discourse and
Agro-Ecological Managerialism’ (2000) 17 Agriculture and Human Values 215; Lewis Holloway et
al, ‘Managing Sustainable Farmed Landscape through “Alternative” Food Networks: A Case Study
from Italy’ (2006) 172 The Geographical Journal 219; Jack Kloppenburg et al, ‘Tasting Food, Tasting
Sustainability: Defining the Attributes of an Alternative Food System with Competent, Ordinary
People’ (2000) 59 Human Organization 177.
resources. Broadly though, industrialised agriculture has significantly driven the far-
reaching degradation of natural resources and environmental services worldwide and
both on and off-farm, climate change, the increase in production costs on farms thus
affecting farm income, public health issues (eg cancer, food-borne illness and
obesity) and animal cruelty.179

2.4.1.3 Regulatory approaches

Generally, the dominant frame is supported and facilitated by domestic
governments; international financial institutions; industrial farmers, farmer lobby
groups and cooperatives; and transnational or large domestic corporations involved
in the food system.180 Proponents of this paradigm emphasise the projected world
population growth and the largely unsubstantiated forecasts that food production
levels must be doubled by 2050 to meet demands of the rising population.181
Currently, the FAO estimates that food production needs to be raised by 70 per cent
from 2005-2050 to meet future demand.182 This figure does not refer to yields, but to
total production required to meet demand if no other policy interventions are taken

179
These impacts are widely documented across scientific, institutional and sociological works. For
overviews see Andrew Kimbrell, The Fatal Harvest Reader: The Tragedy of Industrial Agriculture
(Island Press, 2002); Tracey Clunies-Ross and Nicholas Hildyard, The Politics of Industrial
Agriculture (Routledge, 2013); Jason Clay, World Agriculture and the Environment: A Commodity-
By-Commodity Guide To Impacts And Practices (Island Press, 2013); Marcia S DeLonge, Albie Miles
and Liz Carlisle, ‘Investing in the Transition to Sustainable Agriculture’ (2016) 55, Part 1
Environmental Science & Policy 266.
180
Bryan L McDonald, Food Security (Wiley, 1st ed, 2013) 53–54.
181
According to the UK’s Department for Environment, Food and Rural Affairs, the basis for the
claim that food production needs to double comes from ‘World Agriculture Towards 2030/2050:
Prospects for Food, Nutrition, Agriculture and Major Commodity Groups’ (Interim Report, Food and
Agriculture Organization of the United Nations, June 2006) 31
<http://www.fao.org/fileadmin/user_upload/esag/docs/Interim_report_AT2050web.pdf> where it
states that ‘At the world level, the growth of demand for all crop and livestock products is projected to
be lower than in the past, 1.5 p.a. in the period 1999/01-2030 and 0.9% from 2030-2050’. The FAO’s
report on its face value does not contain any suggestion that food production needs to double. It
merely states that ‘Growth in per capita incomes will contribute to hunger alleviation by reducing
poverty and increasing per capita food demand’. See, ‘UK Food Security Assessment: Detailed
Analysis’ (United Kingdom, Department for Environment, Food and Rural Affairs, January 2010) 20
<http://groupedebruges.eu/sites/default/files/publications/downloads/defra_foodsecurityassessment_2.
pdf>.
182
‘How to Feed the World in 2050’ (Food and Agriculture Organization of the United Nations, 2009)
<http://www.fao.org/fileadmin/templates/wsfs/docs/expert_paper/How_to_Feed_the_World_in_2050.
pdf>.
to, for instance, reduce food waste or promote diets less reliant on resource-intensive
animal protein.183

In order to meet this demand, a policy concept put forward by proponents of

industrial agriculture is ‘sustainable intensification’.184 Generally, sustainable
intensification refers to increasing yields on existing farmlands without land clearing
and without adversely affecting natural resources. As Godfray et al put it ‘Producing
more food from the same area of land while reducing the environmental impact
requires what has been called “sustainable intensification”’.185 Sustainable
intensification promotes the development and use of new agricultural technologies,
including high-yielding varieties, as well as a range of more ecology-based farming
practices.186 It therefore represents an important concept for promoting the transition
to more sustainable, industrial farming models.

Due to its sole focus on production, ‘sustainable intensification’ as a policy

concept does not address other dimensions of food security, such as distribution,
safety and nutrition. Subsequently, the concept has been criticised for inaccurately
conceiving food insecurity as an issue of production,187 and for reinforcing inherent

183
A critical piece of work exploring the use of this statistic and what it actually represents comes
from Isobel Tomlinson, ‘Doubling Food Production to Feed the 9 Billion: A Critical Perspective on a
Key Discourse of Food Security in the UK’ (2013) 29 Journal of Rural Studies 81.
184
For an overview, see, Tara Garnett and Charles Godfray, ‘Sustainable Intensification in
Agriculture: Navigating a Course through Competing Food System Priorities’ (A report on a
workshop, Food Climate Research Network and the Oxford Martin Programme on the Future of Food,
July 2012).
185
A commonly used definition of sustainable intensification defines the concept as ‘producing more
food from the same area of land while reducing environmental impacts’ From, H Charles J Godfray et
al, ‘Food Security: The Challenge of Feeding 9 Billion People’ (2010) 327 Science 812, 813.
186
Information communication technologies and biotechnologies are two examples of technologies
that can be applied in the area of agriculture. In this context, biotechnologies generally refer to the
genetic engineering of seed. This makes it possible to reduce the amount of crops lost to pests (where
the crop is pest resistant or increases in size, eg the ear size of corn). Information communication
technologies used in agriculture include computer-controlled devises (like automatic milking
machines) and robotics. Furthermore, they can be used for record keeping, inventory management and
environment or livestock monitoring. See, eg, Graham Brookes and Peter Barfoot, ‘Key
Environmental Impacts of Global Genetically Modified (GM) Crop Use 1996–2011’ (2013) 4 GM
Crops & Food 109.
187
This critique was made in Jacqueline Loos et al, ‘Putting Meaning Back into “Sustainable
Intensification”’ (2014) 12 Frontiers in Ecology and the Environment 356, 357 where the authors
explained ‘Yet the existing characterization of sustainable intensification primarily focuses on
minimizing environmental impacts, and does not demonstrate how increased food production will
improve human well-being – a crucial oversight given existing gaps between producing food for and
providing food security to people’.
problems in the industrial agricultural model such as the intensive use of natural
resources used in farming.188

Along with policies for sustainable intensification, regulatory responses

favoured by the dominant frame tend to be neoliberal in their approach.
Neoliberalism is a moral and political philosophy that uses aspects of neoclassical
economic theory to support market regulation instead of state-based regulation.189
Similar to neoclassical economic theory, neoliberalism holds that the market will
optimally distribute society’s resources and equitably allocate income. Harvey
explained that:

Neoliberalism…proposes that human well-being can best be advanced by

liberating individual entrepreneurial freedoms and skills within an
institutional framework characterized by strong private property rights, free
markets and free trade. The role of the state is to create and preserve an
institutional framework appropriate to such practices.190

Subsequently, the dominant approach promotes privatisation of agricultural

resources, deregulation including tax reductions on the supply-side191 and trade
liberalisation as the most effective way to reduce food insecurity.192 From this
perspective, the role of public institutions in regulating agriculture and food systems
should be minimised where possible, and the ability of the market, individuals and
private actors to self-regulate is favoured.193

188
For critiques of the concept, see, ‘Wolf in Sheep’s Clothing? An Analysis of the Sustainable
Intensification of Agriculture’ (Summary Report, Friends of the Earth International, October 2012)
<http://www.foei.org/wp-content/uploads/2013/12/Wolf-in-Sheep%E2%80%99s-Clothing-
summary.pdf>.
189
Kim Moody, Workers in a Lean World: Unions in the International Economy (Verso, 1997) 120.
190
David Harvey, A Brief History of Neoliberalism (OUP Oxford, 2005) 2.
191
This essentially means tax cuts for entrepreneurs, corporations and investment entities.
192
See, eg, Tim Lang and David Barling, ‘Food Security and Food Sustainability: Reformulating the
Debate’ (2012) 178 The Geographical Journal 313; Richard Philip Lee, ‘The Politics of International
Agri-Food Policy: Discourses of Trade-Oriented Food Security and Food Sovereignty’ (2013) 22
Environmental Politics 216, 219; Rivera-Ferre, above n 73; Mark Gibson, The Feeding of Nations :
Re-Defining Food Security for the 21st Century (CRC Press, 1st ed, 2012) 451–452; James Kirwan
and Damian Maye, ‘Food Security Framings within the UK and the Integration of Local Food
Systems’ (2013) 29 Journal of Rural Studies 91, 91.
193
For example, Dupont, one of the largest agricultural TNCs in the world, explained that they:
‘[p]ursue sustainable, renewable, innovative, market-driven solutions to solve some of the world’s
biggest challenges, making lives better, safer, and healthier for people everywhere’. Overcoming
Global Challenges (2015) Dupont <http://www.dupont.com/corporate-functions/our-approach/global-
challenges.html>.
 The work of Thomas Malthus is used by proponents of the dominant frame to
reinforce the neoliberal emphasis of regulation in the area of agriculture and food.
Malthus’s theory was that the human population, unless adults waited to have
children and had fewer children, would surpass agricultural production, which in turn
would reduce the population through mass food insecurity, that is, starvation, disease
and famines.194 The Green Revolution is thought to have delayed Malthus’s
prediction by rapidly increasing food production.195

The dominant frame uses Malthus’s theory to promote technological and

scientific approaches that increase food production.196 Thus, proponents of the
dominant frame support regulatory responses that incentivise innovation and enable
the use of new technologies in order to feed the growing population.197 For instance,
advocates of the dominant frame tend to encourage intellectual property laws that
incentivise private investment and support the use of agricultural chemicals and
technologies based on risk management as opposed to more precautionary
approaches.198

2.4.2 Alternative Frames: Food Sovereignty and Agroecology

The alternative frame has two interconnected aspects. The first is the
movement and ideology termed food sovereignty. The second is sustainable
agriculture, which is increasingly referred to as ‘agroecology’. Food sovereignty
advocates for agroecology as an alternative approach to industrial food production.

194
Thomas Robert Malthus, An Essay on the Principle of Population (Cosimo, Inc., 2013) 15.
195
See, eg, Alex F McCalla, ‘Agriculture and Food News to 2025: Why We Should Be Concerned’
(Consultative Group on International Agricultural Research, 1994) 3
<http://library.cgiar.org/bitstream/handle/10947/159/craw10.pdf?sequence=1>.
196
Godfray et al, above n 184.
197
See, eg, Lawrence Busch, ‘Can Fairy Tales Come True? The Surprising Story of Neoliberalism and
World Agriculture’ (2010) 50 Sociologia Ruralis 331; John D Floros et al, ‘Feeding the World Today
and Tomorrow: The Importance of Food Science and Technology’ (2010) 9 Comprehensive Reviews
in Food Science and Food Safety 572, 572 where the authors commented ‘Applications of science and
technology within the food system have allowed production of foods in adequate quantities to meet
the needs of society, as it has evolved. Today, our production-to-consumption food system is complex,
and our food is largely safe, tasty, nutritious, abundant, diverse, convenient, and less costly and more
readily accessible than ever before. Scientific and technological advancements must be accelerated
and applied in developed and developing nations alike, if we are to feed a growing world population.’
198
William C Motes, ‘Modern Agriculture and Its Benefits- Trends, Implications and Outlook’
(Global Harvest Initative, 2010) 30 <http://globalharvestinitiative.org/Documents/Motes%20-
%20Modern%20Agriculture%20and%20Its%20Benefits.pdf>; Michelle D Boone et al, ‘Pesticide
Regulation amid the Influence of Industry’ [2014] BioScience biu138.
Unlike food sovereignty, agroecology is a science and practice that informs many
agricultural concepts and food movements.199

2.4.2.1 Overview of food sovereignty

A range of food and agriculture related movements seek to counter the
dominant frame in the previous section.200 Food sovereignty is a social movement
and ideology that has become particularly prevalent at the international level. Perrey
described food sovereignty as ‘the ideology that drives the counter-movement
actions against the dominant state and market regulation of food’.201

Food sovereignty has its roots in La Via Campesina, which is a transnational

agrarian movement that consists of small-scale farmers, fisher folks, farm workers
and indigenous communities. La Via Campesina has 150 national and sub-national
organisations in 70 countries including Africa, Asia, Europe and the Americas,202
and represents around 200 million farmers.203 Overall, La Via Campesina is the
launcher of and leading supporter for food sovereignty as a transnational social
movement; an organisation with rules and members and the key forum for exchanges
between member groups.204

As a concept, food sovereignty refers to the right of nations and people to

shape food policy and govern their own food system.205 The Declaration of Nyéléni

199
Compare with, A Wezel et al, ‘Agroecology as a Science, a Movement and a Practice’ in Eric
Lichtfouse et al (eds), Sustainable Agriculture Volume 2 (Springer Netherlands, 2011) 27
<http://link.springer.com/chapter/10.1007/978-94-007-0394-0_3>. Wezel et al viewed agroecology as
a movement as well. In contrast, this thesis views agroecology as more analogous to a value-neutral
term. From this perspective, food sovereignty is a social and political movement, and agroecology is
the science and practice that it promotes. Similar to how, for instance, conservation is an
environmental movement and biological diversity is what it promotes.
200
These include the slow food movement, the organic food movement and the local food movement
201
Shoshana Devra Perrey, ‘Food Regimes, Race and The Coloniality of Power: Linking Histories in
the Food Sovereignty Movement’ (Program in Agrarian Studies, Yale University, The Journal of
Peasant Studies; Yale Sustainable Food Project, 2013) 15.
202
Organisation: What Is La Via Campesina? La Via Campesina: The International Peasants
Movement <http://www.viacampesina.org/en/index.php/organisation-mainmenu-44>.
203
Ibid. In order to become a member of La Via Campesina, an organisation must be a genuine
representation of either peasants, farmers, rural women, farm workers, indigenous communities and is
required to prove alignment with the views of La Via Campesina.
204
Saturnino Borras, ‘La Via Campesina: An Evolving Transnational Social Movement’ (2004/6,
2004) 5.
205
Raj Patel is a key author in conceptualising food sovereignty. See, eg, Rajeev C Patel, ‘Food
Sovereignty: Power, Gender, and the Right to Food’ (2012) 9 PLoS Medicine
<http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3383747/>; Rajeev Patel, Radhika Balakrishnan and
Uma Narayan, ‘Transgressing Rights: La Via Campesina’s Call for Food Sovereignty/Exploring
formulated at the Forum on Food Sovereignty in 2007 provided the definition of food
sovereignty as:

Food sovereignty is the right of peoples to healthy and culturally appropriate

food produced through ecologically sound and sustainable methods, and
their right to define their own food and agriculture systems. It puts those
who produce, distribute and consume food at the heart of food systems and
policies rather than the demands of markets and corporations.206

This definition evidences links with human rights, including the right to food
and the right to self-determination in particular. Therefore, both collective rights
(self-determination) and individual rights (the right to food) are evident in food
sovereignty discourses.

The concept of food sovereignty is increasingly gaining legal legitimacy. The

constitutions of Ecuador,207 Bolivia,208 and Nepal,209 enshrine the right to food
sovereignty and obligate their governments to promote food sovereignty. Other laws
recognising and promoting food sovereignty can be found in Quebec, Mali, Senegal
and the United States.210

Food sovereignty, as a counter-movement, traces back to Central America in

the mid-1980s when small-scale producers protested the removal of state support for
agriculture and the influx of US food imports.211 It was further developed in the
1990s to resist the inclusion of agriculture in the WTO negotiations.212 Since this
time, food sovereignty has grown into a global movement that links a diverse range

Collaborations: Heterodox Economics and an Economic Social Rights Framework/Workers in the

Informal Sector: Special Challenges for Economic Human Rights’ (2007) 13 Feminist Economics 87.
206
‘Declaration of Nyeleni’ (Forum for Food Sovereignty, 2007) 1
<http://nyeleni.org/spip.php?article290>.
207
Constitucion de 2008 [Republic of Ecuador Constitution of 2008] ch 3.
208
Constitución de Bolivia [Constitution of Bolivia 2009] art 309.
209
Constitution Bill of Nepal 2015 [Unofficial Translation by Nepal Law Society, Institute for
Democracy and Electoral Assistance and United Nations Development Program] art 36.
210
Priscilla Claeys, Human Rights and the Food Sovereignty Movement: Reclaiming Control
(Routledge, 2015) ch 2 where Claeys outlines the range of domestic attempts to regulate for food
sovereignty.
211
See, eg, Marc Edelman, ‘Transnational Peasant Politics in Central America’ (1998) 33 Latin
American Research Review 49.
212
Annette Aurélie Desmarais, Hannah Wittman and Nettie Wiebe, ‘Sovereignty Now!’ (2011) 37
Alternatives Journal 18, 19.
of groups, including environmentalists, consumer groups and the urban poor from
developed and developing countries.213

To represent small-scale producers and the food sovereignty movement at the

international level, an International Planning Committee on Food Sovereignty was
developed in the year 2000.214 The FAO has developed a formal, collaborative
relationship with this planning committee for the development of FAO guidelines
and policies.215 The committee also participates in the CFS.

2.4.2.2 Agroecology principles and practices

216
Sometimes referred to as the ‘science of sustainable agriculture’,
agroecology is the application of ecology — the study of the interactions between
organisms and their environment — to agricultural systems.217 As a science then,
agroecology is the study of agricultural ecosystems. As a practice, agroecology is
made up of a number of practices and principles that inform farm management
decisions to enhance resilience and promote regeneration.

Various agricultural policy concepts promote agroecological practices. These

concepts include sustainable intensification, climate smart agriculture, organic
agriculture and conservation agriculture. The table below explores the role of
agroecology in these agricultural policy concepts.

213
Priscilla Claeys, ‘The Creation of New Rights by the Food Sovereignty Movement: The Challenge
of Institutionalizing Subversion’ (2012) 46 Sociology 844, 846.
214
Timeline (2013) International Planning Committee for Food Sovereignty
<http://www.foodsovereignty.org/about-us/>.
215
Brem-Wilson, above n 167, 78–79.
216
See, eg, Agroecology: The Science Of Sustainable Agriculture, Second Edition (Westview Press,
Second Edition edition, 1995).
217
Agroecology was defined in the introduction as ‘the application of ecological concepts and
principles to the design and management of sustainable agroecosystems, provides a framework to
assess the complexity of agroecosystems’, this definition is from Miguel A Altieri, Clara I Nicholis
and United Nations Environmental Programme Environmental Training Network for Latin America
and the Caribbean, Agroecology and the Search for a Truly Sustainable Agriculture (United Nations
Environmental Programme, Environmental Training Network for Latin America and the Caribbean,
2005) 30. There are broader more food-system-based definitions of agroecology, but this was not
provided in text as it may distract from the focus on agriculture. However, for broader understandings
of agroecology see C Francis et al, ‘Agroecology: The Ecology of Food Systems’ (2003) 22 Journal
of Sustainable Agriculture 99, 18. Where agroecology is seen as the ‘…the application of ecological
concepts and principles to the design and management of sustainable food systems’.
  Sustainable  Climate‐Smart  Organic  Conservation  
Intensification  Agriculture  Agriculture  Agriculture 
(SI)  (CSA) 
Definition/  Increase yields  Sustainably  Holistic approach  Set of 
Aim  without  increase  to farming that  agroecological soil 
adversely  productivity  promotes  management 
affecting the  and incomes  ecosystem health,  practices to 
environment  while adapting  including  improve crop 
and requiring  to climate  biodiversity,  yields and 
more land.  change and  biological cycles  sustainability of 
reducing GhGs.  and soil biological  agriculture. 
activity. 
Methods/  Conventional  Strong support  Agroecological  Three linked 
Technique  farming  for  farming methods  principles: 
Practices  methods but  agroecological  as well as  continuous 
with a more  methods  labelling methods  minimum 
selective use of  including on‐ and  mechanical soil 
external inputs,  farm diversity  commercialisation  disturbance, 
agricultural  combined with  to specific  permanent organic 
biotechnology  economies of  standards.  soil cover and 
and  scale.  diversification of 
agroecological  crops and species. 
methods.  These are 
agroecological 
practices. 
Approach  SI combines  CSA is focused  Organic  Endorses and 
to  agricultural  specifically on  agriculture may  adopts 
agroecology   biotechnology  adapting and  adopt  agroecological 
and  mitigating  agroecological  methods. The 
agroecological  climate change.  methods. Farms  terms are often 
methods. SI is  It is a policy  that primarily use  used 
an objective  concept that  agroecological  interchangeably.  
that  endorses and  methods will not  Conservation 
incorporates  uses  necessarily meet  agriculture is more 
agroecological  agroecological  organic regulatory  focused on 
practices.  practices.  standards.  particular 
Organic farms  agroecological 
need not be  practices including 
ecological in their  zero‐tillage and 
approach. They  low‐tillage 
can use  practices. 
 monoculture  Tabl
cropping and  e 2.2
biopesticides 
Com
rather than 
chemical  paris
pesticides.  on of
218
agroecology to other concepts

In terms of farm management, agroecological methods vary depending on the

context, but they commonly involve mimicking natural ecosystems and combining
new knowledge with local or indigenous agricultural methods.219 A brief
understanding of the principles and practices is required, as the analysis of the
regulatory regime in this thesis often examines how agroecological methods have
been promoted or hindered.

The underlying principles of agroecology are to:

 Recycle biomass, optimise nutrient availability and balance nutrient flows;

 Improve soil fertility for plant growth by managing organic matter (eg
parts from animals or plants) and enhancing soil biotic activity (the
organisms that live in the soil);

 Minimise losses from weather events, erosion or evaporation by

microclimate management, water harvesting and increasing soil cover
(through mulch, crops or cover crops);

 Diversify species and varieties throughout time and in the space with a
particular focus on using local crops and livestock breeds that can adapt to
the ecosystem;

218
Synthesis by the author on the basis of: ‘Climate-Smart Agriculture Sourcebook’ (Food and
Agricultural Organization of the United Nations, 2013)
<http://www.fao.org/docrep/018/i3325e/i3325e.pdf>; Nguu Van Nguyen, ‘Sustainable Intensification
of Rice Production for Food Security in the Near Future - A Summary Report’ (Secretary,
International Rice Commission, Food and Agriculture Organisation, 2007) 14; Garnett and Godfray,
above n 180; Conservation Agriculture (2015) Food and Agriculture Organization of the United
Nations <http://www.fao.org/ag/ca/>; D Tata Rao, ‘Conservation Agriculture: Its Impact on
Productivity and Agro-Ecological Systems’ (2010) 65 Indian Journal of Agricultural Economics 472;
Goodman, above n 174.
219
Katie L Monsen, ‘Agroecology’ in Dustin Mulvaney and Paul Robbins (eds), Green Food: An A-
to-Z Guide (SAGE Publications, Inc., 2010) 23, 23.
  Enhance the interactions and synergies between the various components in
the ecosystem to improve their provision of ecological services.220

The purpose of these approaches then is to use ecological interactions and

environmental synergism to reduce pests, improve soil fertility, build resilience and
increase the quality and quantity of food produced.

To illustrate how these principles are reflected in farming practices, the figure
below, adapted from Silici,221 provides a list of the key agroecological practices.

Conservation tillage: no or minimum tillage improves soil structure – including

aeration and water infiltration and retention capacity – and organic matter.
Mixing crops in a single plot, such as intercropping and poly-cultures:
biological complementarities improve nutrient and input efficiency, use of space
and pest regulation, thus enhancing crop yield stability.
Crop rotation and fallowing: nutrients are conserved from one season to the
next, and the life cycles of insect pests, diseases, and weeds are interrupted.
Cover crops and mulching: reduce erosion, provide nutrients to the soil and
enhance biological control of pests.
Crop-livestock integration, including aquaculture: allows high biomass output
and optimal nutrient recycling, beyond economic diversification.
Integrated nutrient management, such as use of compost, organic manure and
nitrogen-fixing crops: allows the reduction or elimination of the use of chemical
fertilisers.
Biological management of pests, diseases and weeds, such as integrated pest
management: decreases long-term incidence of pests and reduces environmental
and health hazards caused by the use of chemical control.
Efficient water harvesting (especially in dryland areas) such as small-scale
irrigation allows for reduction in the need for irrigation while increasing its
efficiency.
Manipulation of vegetation structure and plant associations: improves
efficiency of water use as well as promoting biodiversity.
Agro-forestry, especially the use of multifunctional trees: maintains and
improves soil fertility through nitrogen fixation, enhances soil structure and
modifies the microclimate.
Use of local resources and renewable energy sources, composting and waste
recycling: allows a reduction in the use of external inputs as well diminishing
pressure on the natural resource base.
Holistic landscape management: around field perimeters (windbreaks,
shelterbelts, insect strips and living fences), across multiple fields (mosaics of
crop types and land-use practices) and landscape to regional scale (river buffers,
semi-natural areas).
220
These principles have been adapted from Coen Reijntjes, Bertus Haverkort and Ann Waters-Bayer,
Farming for the Future: An Introduction to Low-External-Input and Sustainable Agriculture
(Macmillan, 1992) with changes by the author of this research to explain some aspects; The summary
of the principles was provided by Altieri, Nicholis and Caribbean, above n 215.
221
Laura Silici, ‘Agroecology: What It Is and What It Has to Offer’ (Issue Paper, International
Institute for Environment and Development, June 2014) 10
<http://pubs.iied.org/pdfs/14629IIED.pdf>.




Figure 2.1 Agroecological practices summarised by Silici

2.4.3 Scientific and International Institutional Support for Agroecology

Along with support from the food sovereignty movement, a substantial body of
work provides scientific evidence for the adoption of agroecological practices,
including findings that such practices are not only more sustainable but can also
increase yields.222

For instance, Pretty et al examined 286 agricultural projects over 57 developing

countries in which agroecological practices had been adopted. They found that the
average crop yield increase was 79 per cent; water efficiency and carbon
sequestration was greatly improved and 77 per cent of projects declined in their
pesticide use by 71 per cent. The authors concluded that it remains uncertain whether
these practices can meet future food needs but ‘[t]here are grounds for cautious
optimism, particularly as poor farm households benefit more from their adoption’.223

Numerous studies have found that farmers who adopt agroecological systems
of food production are more resilient to climate change, recover more quickly from
weather events and even earn more profits compared with conventional operations in
the area.224 Yet another body of work points to agroecological practices as the way to

222
For a useful overview, see generally, Noureddine Benkeblia (ed), Agroecology, Ecosystems, and
Sustainability (CRC Press, 2014).
223
J N Pretty et al, ‘Resource-Conserving Agriculture Increases Yields in Developing Countries’
(2006) 40 Environmental Science & Technology 1114.
224
See, eg, Frank Eyhorn, Mahesh Ramakrishnan and Paul Mäder, ‘The Viability of Cotton-Based
Organic Farming Systems in India’ (2007) 5 International Journal of Agricultural Sustainability 25
where the authors found ‘Due to 10–20% lower total production costs and a 20% organic price
premium, average gross margins from organic cotton fields were 30–40% higher than in the
conventional system’; Mica Bennett and Steven Franzel, ‘Can Organic and Resource-Conserving
Agriculture Improve Livelihoods? A Synthesis’ (2013) 11 International Journal of Agricultural
Sustainability 193 where the authors examined 31 studies of African and Latin American farmers
converting from conventional or organic-by-default systems to specifically organic and resource-
conserving agricultural models.The authors found that yield improved in 19 of the 25 cases that
reported on it, food security improved in seven of eight cases, and net income improved in 19 of 23
cases.; Adam S Davis et al, ‘Increasing Cropping System Diversity Balances Productivity,
Profitability and Environmental Health’ (2012) 7 PLoS ONE e47149 where the authors conducted a
enhance biodiversity on farms leading to an increase in yields, increase nutrition
security and gender equality in rural communities, and reduce the amount of
synthetic inputs and run-off from farms.225

International institutions that promote agroecology include the FAO, the UNEP, the
United Nations Conference on Trade and Development (UNCTAD) and the World
Bank; as well as human rights experts, NGOs and various scientific institutions.226
Generally, the level of support for agroecology differs between institutions.

The FAO hosted an “International Symposium on Agroecology for Food Security

and Nutrition”. The 2014 report for this symposium affirmed that ‘Principles and
approaches underlying Agroecology can contribute to overcoming challenges to
support sustainable food systems and FAO will assist to provide a framework for

field study from 2003-2011 in Iowa, USA. They contrasted three systems (conventional system that
used similar amounts of inputs as nearby farms and two more diversified cropping systems with lower
synthetic inputs). They found that ‘Grain yields, mass of harvested products, and profit in the more
diverse system were similar to, or greater than, those in the conventional system, despite reductions in
agrichemical inputs.’; See also, ‘Climate Resilient Sustainable Agriculture Experiences’ (Climate
Resilient Sustainable Agriculture Case Studies, ActionAid International, September 2014)
<http://www.actionaidusa.org/sites/files/actionaid/crsa_experiences_-_september_2014_0.pdf> for a
range of case studies.
225
See, eg, Péter Batáry et al, ‘Landscape-Moderated Biodiversity Effects of Agri-Environmental
Management: A Meta-Analysis’ (2011) 278 Proceedings. Biological Sciences/The Royal Society 1894
which was a meta-analysis of the benefits of agroecology methods to increasing biodiversity
conservation. The authors found that across all studies (109 observations for species richness and 114
observations for abundance) agroecological methods had significantly increased species richness and
abundance. Pollinators were one aspect that was significant enhanced; Davis et al, above n 221 where
the authors conducted a field study from 2003-2011 in Iowa, USA. They contrasted three systems
(conventional system that used similar amounts of inputs as nearby farms and two more diversified
cropping systems with lower synthetic inputs). They found that ‘Grain yields, mass of harvested
products, and profit in the more diverse system were similar to, or greater than, those in the
conventional system, despite reductions in agrichemical inputs.’; Andrew D Jones, Aditya Shrinivas
and Rachel Bezner-Kerr, ‘Farm Production Diversity Is Associated with Greater Household Dietary
Diversity in Malawi: Findings from Nationally Representative Data’ (2014) 46 Food Policy 1 where
the authors modeled farm production diversity on dietary diversity in order to determine the
relationship, if any, between food production diversity and household dietary diversity. They
concluded that the ‘Consumption of legumes, vegetables and fruits was especially strongly associated
with greater farm diversity. More diverse production systems may contribute to more diverse
household diet’. But they warned that the relationship is complex and can be influenced by a range of
factors.
226
The various scientific institutions and NGOs include the Ecological Society of America, the Latin
American Society for Agroecology, La Via Campesina, Oxfam, Friends of the Earth, CERES and was
further endorsed by over 250 scientists at the Union of Concerned Scientists (UCS) in Cambridge. For
evidence of these endorsements, see Scientists’ Support Letter for the International Symposium on
Agroecology, 18–19 September, 2014 (17 September 2014) Institute for Agriculture and Trade Policy
1 <http://www.iatp.org/documents/scientists%E2%80%99-support-letter-for-the-international-
symposium-on-agroecology-18%E2%80%9319-september->, which is a letter to the FAO by around
70 scientists that outlines the key endorsements of agroecology.
international dialogue on Agroecology in the future’.227 Accordingly, participants of
the symposium recommended the ‘up scaling of agroecological approaches’; this
involves incentivising the preservation and improvement of on-farm environmental
services, reducing wastes from agriculture and providing transitional support for
farms adopting more agroecological approaches.228

Despite this symposium, the FAO tends to support agroecological practices and
principles without explicitly endorsing agroecology. Perhaps the FAO is concerned
with the connections between agroecology and the more radical food sovereignty
movement. Nevertheless, the FAO has committed to hosting more regional-based
events around agroecology.229

The UNEP is more explicit in its endorsement of agroecology and uses

agroecology interchangeably with sustainable agriculture. In fact, the UNEP has a
history of promoting agroecology.230 After reviewing the emerging scientific
evidence in 2012, the UNEP reported that under agroecological approaches ‘[i]t is
not unreasonable to expect farm level productivity to increase relative to
conventional agriculture, especially in developing countries’.231

In a similar vein, the UNCTAD released a report in 2013 that argued that:

The world needs a paradigm shift…from conventional, monoculture-based

and high-external-input-dependent industrial production towards mosaics of
sustainable, regenerative production systems that also considerably improve
the productivity of small-scale farmers…which recognizes that a farmer is

227
‘Final Report for the International Symposium on Agroecology for Food Security and Nutrition’
(Food and Agricultural Organization of the United Nations, September 2014) 2
<http://www.fao.org/3/a-i4327e.pdf>.
228
Ibid 3.
229
Laura Silici, Agroecology Offers FAO a ‘New Window’ on Agriculture (2 October 2014)
International Institute for Environment and Development <http://www.iied.org/agroecology-offers-
fao-new-window-agriculture>.
230
For instance, the UNEP released the following report in 2000/2005, Altieri, Nicholis and
Caribbean, above n 215.
231
‘Avoiding Future Famines: Strengthening the Ecological Foundation of Food Security Through
Sustainable Food Systems’ (UNEP Synthesis Report, United Nations Environment Programme,
October 2012) 9.
 not only a producer of agricultural goods, but also a manager of an agro-
ecological system.232

UNCTAD has outlined a number of arguments for adopting agroecological

methods and provided a range of recommendations for policy responses that
facilitate agroecology.

2.4.4 Regulatory Approaches

The International Assessment of Agricultural Knowledge, Science and
Technology for Development (IAASTD) provides a useful summary of the
regulatory instruments required to scale up agroecology. The IAASTD was an inter-
governmental process initiated by the World Bank and the FAO. The assessment was
designed to be an ‘open, transparent, representative and legitimate process’ that was
evidence-based to ‘assess the impacts of past, present and future agricultural
knowledge, science and technology’.233 In reflection of these attributes, the IAASTD
was administered by a bureau of 30 government representatives and around 30
NGOs. The bureau appointed 400 experts from various scientific disciplines to carry
out the assessment. Additional stakeholders and experts were involved in the peer-
review process. The IAASTD published its review and findings in a report at the end
of 2009, which report was subsequently accepted by 58 countries.234

Among other points, the IAASTD concluded that agricultural knowledge,

science and technology needs to be urgently strengthened and diversified. In
particular, the IAASTD found that:

…new national, regional and international agreements will be needed to

support further shifts towards ethical, equitable and sustainable food and
agriculture systems in response to the urgent challenges posed by declining

232
United Nations Conference on Trade and Development, Wake up before it is too late: Make
Agriculture Truly Sustainable now for Food Security in a Changing Climate, Trade and Environment
Review 2013, UN Doc UNCTAD/DITC/TED/2012/3 (18 September 2013).
233
‘Agriculture at a Crossroads’ (Global Report, International Assessment of Agricultural Knowledge
Science and Technology for Development, 2009) Preface
<http://www.unep.org/dewa/agassessment/reports/IAASTD/EN/Agriculture%20at%20a%20Crossroa
ds_Global%20Report%20(English).pdf>.
234
Australia, Canada and the US did not fully approve the IAASTD, which aligns with their political
interests and their economies’ reliance on industrial agricultural models. Generally, Australia, Canada
and the US supported the IAASTD’s large, multi-stakeholder, multidisciplinary exercise but had a
number of concerns or disagreements, which they did not outline. See ‘Agriculture at a Crossroads’,
above n 232 Annex G.
 availability of clean water, climate change and insupportable labour
conditions.235

The IAASTD recommended significant investment into agroecological

sciences supported by regulatory interventions including:

 Incentives for and facilitation of integrated pest management;

 Payments to farmers and communities for ecosystem services;

 Incentives for and facilitation of alternative markets (eg organic

agriculture);

 Modes of governance that emphasise participatory and democratic

approaches to land, water and agricultural science and technology.236

It seems then that the IAASTD promotes market-based instruments as a way to

incentivise agroecology and dynamic, multi-level governance arrangements.

Other regulatory reform recommendations put forward by proponents of the

alternative frame are more interventionist. Common reform recommendations
include: developing urban and community food systems, breaking up of large farms
into networks of small-scale producers, diluting corporate concentration to create
more bargaining power and opportunities, creating regulatory protections for prime
agricultural land; zoning for urban agricultural systems and introducing strict
regulations around the use of external inputs.237

2.4.5 Working Beyond the Two Approaches

Dominant interpretations narrow food security to the task of producing more
food and further liberalising agricultural trade.238 Clearly, it is critical that global

235
Ibid 59.
236
‘Agriculture at a Crossroads: Synthesis Report’ (International Assessment of Agricultural
Knowledge Science and Technology for Development, 2009) 30
<http://www.unep.org/dewa/agassessment/reports/IAASTD/EN/Agriculture%20at%20a%20Crossroa
ds_Synthesis%20Report%20(English).pdf>.
237
Some of these ideas stemmed from, B M Mirkin and R M Khaziakhmetov, ‘Sustainable
Development--Food Security--Agroecology’ (2000) 31 Russian Journal of Ecology 162; Thomas P
Tomich et al, ‘Agroecology: A Review from a Global-Change Perspective’ (2011) 36 Annual Review
of Environment and Resources 193.
238
See generally, Lucy Jarosz, ‘Comparing Food Security and Food Sovereignty Discourses’ (2014) 4
Dialogues in Human Geography 168. Note that the FAO has created the comprehensive, theoretical
understanding of food security we have today, which includes socioeconomic inequalities through the
food production levels meet the needs of a growing population in the future. Yet,
increasing the global production of food is not going to improve food security in the
areas that are the most food insecure nor will increasing the production of food
address other dimensions of food security such as economic access to food.239

The closest connection between production levels and food security continues
to exist in poor, agriculture-dependent societies. As the FAO has explained:

That there is scope for increasing global production is not to say that all
people will be food-secure in the future. The interaction between food
security and food production potential is very much a local problem in poor
and agriculture-dependent societies… Unless local agriculture is developed
and/or other income earning opportunities open up, the food insecurity
determined by limited local production potential will persist, even in the
middle of potential plenty at the world level.240

In other words, increasing production at a global level will not effectively

address food insecurity. This is clear today, as enough food is currently produced to
feed everyone, yet billions are experiencing food insecurity.241 Instead, the strongest
correlation between increasing production and improving food security exists in
those communities dependent on agriculture in rural areas of developing countries.

In countries without the close connection between production levels and food
security, equating food security with production levels distracts from other issues and
potential regulatory interventions. Carolan explained that ‘Conventional
understandings of food security privilege affluent nations — they fail to ask
fundamental questions such as “are conventional food-related practices sustainable?”
and “what levels of well-being do they help generate?”’242 To put it differently, the
conventional approach of conceptualising food insecurity as a problem of production
for developing nations has led to developed countries overlooking their own
imperfect food security status. Their food security challenges include the increasing

access limb and nutritional issues through the utilisation limb. The FAO’s responses to food security
are often more mixed than dominant discourses.
239
Tomlinson, above n 182. This point was discussed in part 4(I)(c) of this chapter.
240
‘World Agriculture Towards 2030/2050: Prospects for Food, Nutrition, Agriculture and Major
Commodity Groups’, above n 180, 36.
241
What Causes Hunger? Fighting Hunger Worldwide, above n 58. Note: malnutrition encompasses
undernutrition and overnutrition.
242
Carolan, above n 172, 180.
level of diet-related diseases, as well as the many, severe environmental impacts
associated with industrial agriculture that can undermine future food security.243

Agroecology does not have the same adverse impacts on natural resources or
human health as industrial agriculture. The research summarised above highlighted
the positive environmental and pro-poor outcomes associated with agroecology.
Nevertheless, transitions to agroecological farming systems could cause short-term
food insecurity for subsistence farming communities as yields may temporarily
decline.244 Similar to industrial agriculture, transitioning to more agroecological
farming methods requires significant public investment.245 Accordingly, any
widespread transition to more agroecological farming systems needs to be gradual
and carefully regulated to avoid negative impacts on short-term food security.

The food sovereignty aspect of the alternative frame fabricates a ‘common

other’ that is staunchly opposed to conventional and neoliberal governance
approaches and condemns industrial agriculture.246 This viewpoint tends to ignore
the fact that the dominant frame has not successfully brought about a completely

243
Quentin Farmar-Bowers, Vaughan Higgins and Joanne Millar, ‘Introduction: The Food Security
Problem in Australia’ in Quentin Farmar-Bowers, Vaughan Higgins and Joanne Millar (eds), Food
Security in Australia: Challenges and Prospects for the Future (Springer Science & Business Media,
2012) 1, 5 where the authors examined food insecurity in Australia, which is a developed country and
a large agricultural exporter. Despite these factors, Farmar-Bowers et al highlighted the range of food
insecurity issues in Australia, which primarily relate to environmental threats and diet-related
diseases. The authors observed that ‘Noting that other nations are worse off than Australia or getting
similar food-related health problems is not a valid excuse for complacency at home and htinking that
food security issues are being effectively handled...we are not in competition with other nations but
rather we are in competition with the future; we ought to focus on understanding then changing the
social-ecological systems so that they function better in the future’.
244
See, eg, Jack P Manno, Privileged Goods: Commoditization and Its Impact on Environment and
Society (CRC Press, 1999)89. There is, however, little recent evidence of a short-term decline in
yields during transitions to more ecological farming methods. Any short-term decline in yields will
diminish the food security status of those communities dependent on agriculture for food or for
income to purchase food, and so changes in approaches to farming should be cautious to avoid harm.
245
See, eg, Nesar Ahmed and Stephen T Garnett, ‘Integrated Rice-Fish Farming in Bangladesh:
Meeting the Challenges of Food Security’ (2011) 3 Food Security 81 where the costs of adopting a
particular sort of agroecological system were too high for poor, rural farmers in Bangladesh; Sonja
Brodt and Donald Schug, ‘Challenges in Transitioning to Organic Farming in West Bengal, India’
(2008) <http://orgprints.org/12394/>.
246
Henry Bernstein, ‘Food Sovereignty via the “Peasant Way”: A Sceptical View’ (2014) 41 The
Journal of Peasant Studies 1031, 1041. For a useful overview of this debate, see, Kees Jansen, ‘The
Debate on Food Sovereignty Theory: Agrarian Capitalism, Dispossession and Agroecology’ (2015) 42
The Journal of Peasant Studies 213.
neoliberal approach to agricultural regulation.247 In fact, farms today are increasingly
regulated by state and non-state actors that seek to influence beneficial
environmental and social outcomes.248 Furthermore, most farmers and farms are part
of commodity markets. The idea that there are two discrete farming systems — one
that partakes in industrial agriculture and markets and another that operates beyond
the market — is generally flawed.249 Other weaknesses and limitations in the concept
and the food sovereignty movement more generally include:

1. A lack of clarity in terms of rights and duty-holders, which may limit its
practical application;250

2. A lack of incorporation of workers in the food system;

3. Food localisation can aggravate issues related to the discrimination and

marginalisation of certain groups including women, ethnic minorities and
racial intolerance;

4. Tensions between working within the current institutional and legal

framework at a top-down level and challenging current frameworks from
the bottom-up.251

247
John Braithwaite, ‘Neoliberalism or Regulatory Capitalism’ (Occasional Paper No. 5, Regulatory
Institutions Network, Research School of Social Sciences, Australian National University, October
2005) <http://catalogue.nla.gov.au/Record/3583446>.
248
This is not to say that the regulations are sufficient or effective, just that a neoliberal trend is not as
evident as some may suggest. See, eg, Liesbeth Colen, Miet Maertens and Johan Swinnen, ‘Private
Standards, Trade and Poverty: GlobalGAP and Horticultural Employment in Senegal’ (2012) 35
World Economy 1073; Kiah Smith, Geoffrey Lawrence and Carol Richards, ‘Supermarkets’
Goverance of the Agri-Food Supply Chain: Is the “Corporate-Environmental” Food Regime Evident
in Australia’ 17 International Journal of Sociology of Agriculture and Food 140; Bernd van der
Meulen, Private Food Law: Governing Food Chains Through Contract Law, Self-Regulation, Private
Standards, Audits and Certification Schemes (Wageningen Academic Pub, 2011); Javier Sanz Cañada
and Alfredo Macías Vázquez, ‘Quality Certification, Institutions and Innovation in Local Agro-Food
Systems: Protected Designations of Origin of Olive Oil in Spain’ (2005) 21 Journal of Rural Studies
475.
249
Bernstein, above n 245, 1044 where he explains that peasants now refers to petty commodity
producers. In other words, ‘there are no “peasants” in the world of contemporary capitalist
globalisation.’; See also, Henry Bernstein, Class Dynamics of Agrarian Change (Kumarian Press,
2010) 3–4. Compare with, Philip McMichael, ‘A Comment on Henry Bernstein’s Way with Peasants,
and Food Sovereignty’ (2015) 42 The Journal of Peasant Studies 193.
250
Raj Patel, ‘Food Sovereignty’ (2009) 36 Journal of Peasant Studies 663, 666.
251
Nick Rose, Optimism of the Will: Food Sovereignty as Transformative Counter-Hegemony in the
21st Century (A thesis submitted in fulfilment of the requirements of Doctor of Philosophy, RMIT
University, 2013) 17–18.
 Despite these limitations, food sovereignty makes vital contributions to food
and agricultural policy as a political concept and social movement and as a way to
improve the representation of food insecure groups in regulatory decision-making.

The next chapter puts forward a rights-based approach to food security as an

approach that allows regulators to move past this debate while still challenging, like
the alternative frame, entrenched power structures and business-as-usual.
 A Rights-Based Approach to Food
Security as the Normative Basis

3.1 OVERVIEW

Food security is the most widely used concept for analysing food and agricultural issues
at the international level. Food security provides a functional objective for the regulation of
agriculture and its pillars (accessibility, availability, utilisation and stability) make the
concept multi-faceted. Because food security is a technical yet comprehensive goal, it is
useful for evaluating the range of potential impacts that a regulatory instrument or issue.
However, food security as a concept lacks instrumental value, that is, it does not provide
ways in which to achieve it. The previous chapter ordered the debate regarding how to
achieve and regulate for food security into dominant and alternative frames. Each of these
frames have limitations and ambiguities, and so instead this thesis seeks to employ higher-
order norms in line with the policy-oriented method outlined in Chapter 1.

A RBA is a critical conceptual tool for determining whether a regulatory instrument

promotes or hinders the goal of food security for all. Firstly, a RBA taps into the widely-held
intrinsic values relating to human dignity, shared responsibility and freedom, and in doing so
a RBA strengthens the rationale for why the realisation of food security should be the
purpose of food and agricultural regulation.252 In other words, a RBA identifies, with legal
legitimacy, the values and objectives that should underpin food and agricultural regulation.
Secondly, a RBA clarifies the objective of food security by adding instrumental value
including improved accountability mechanisms. Lastly, a rights-based approach to food
security is consistent with an emerging trend, reflected in international policy and
scholarship, of evaluating environmental and development issues through a human rights-
based lens.253

252
This was discussed in Chapter 1 in the methods section (1.3). An outline of the concept of food security was
provided in the terminology section (1.5).
253
Dinah Shelton, ‘Human Rights, Environmental Rights, and the Right to Environment’ (1991) 28 Stanford
Journal of International Law 103; Dinah Shelton, ‘Human Rights and Climate Change’ (Working Paper No.09-
002, The Roberta Buffett Center for International and Comparative Studies, 17 November 2009)
<http://buffett.northwestern.edu/documents/working-papers/Buffett_09-002_Shelton.pdf>; Catalina Devandas
Aguilar et al, ‘The Effects of Climate Change on the Full Enjoyment of Human Rights’ (Office of the United
 By expanding on these three points, this chapter explains how a RBA can be employed
to assess whether an agricultural regulatory intervention is likely to promote outcomes
consistent with food security. Consequently, this chapter contains the criteria developed by
this thesis to evaluate whether a regulatory instrument is consistent with a rights-based
approach to food security (‘RBA to FS’).

In order to propose criteria for evaluating compatibility with a RBA to FS, this chapter
begins by examining human rights law and the value it adds to the concept of food security.
This provides the normative basis for the criteria and the evaluation of the regulatory regime
in this thesis. The chapter then considers how a RBA to FS conceptually incorporates
environmental considerations and principles. In drawing together these discussions, this
chapter establishes the criteria used to evaluate the compatibility of the regulatory framework
for agriculture with a RB to FS.

3.2 HUMAN RIGHTS: AN OVERVIEW

3.2.1 Human Rights Law

254
Human rights are ‘protections of the values we attach to human agency’.
Subsequently, human rights function as ‘moral and legal guarantees of important freedoms,
benefits and powers’ that all people have by virtue of being human.255 The foundational value
that human rights seek to protect and promote is human dignity, that is, the ‘inherent dignity’
of humans.256 Conceptually, human dignity is closely intertwined with a range of intrinsic

Nations High Commisioner for Human Rights, 30 April 2015); Siobhan Mcinerney-Lankford, Mac Darrow and
Lavanya Rajamani, Human Rights and Climate Change: A Review of the International Legal Dimensions
(World Bank Publications, 2011); ‘Voluntary Guidelines to Support the Progressive Realization of the Right to
Adequate Food in the Context of National Food Security’ (Adopted by the 127th Session of the FAO Council,
November 2004, Food and Agricultural Organization of the United Nations, 2005).
254
James Griffin, ‘Discrepancies Between the Best Philosophical Account of Human Rights and the
International Law of Human Rights’ (2001) 101 Proceedings of the Aristotelian Society (Hardback) 1, 1–2.
255
James W Nickel, Making Sense of Human Rights: Philosophical Reflections on the Universal Declaration of
Human Rights (University of California Press, 1987) 24.
256
See, eg, the Charter of the United Nations preamble para 2 that obligates each state to: ‘Reaffirm faith in
fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women
and of nations large and small’. See also, the Universal Declaration of Human Rights, GA Res 217A (III), UN
GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948) (UDHR) preamble para 1, which
recognises ‘the inherent dignity… of all members of the human family is the foundation of freedom, justice and
peace in the world’. Likewise, Article 1 of the UDHR states that ‘All human beings are born free and equal in
dignity and rights.’
values including freedom and free will, human flourishing, personal fulfilment, identity and
the ability to expand horizons and aspirations.257

The UN Declaration of Human Rights (UDHR) and the subsequent nine UN human
rights provide the body of international human rights law and arguably some of the rights
they contain are also part of customary international law.258 In 1948 when the UDHR was
adopted, the UN did not classify rights and instead included all rights that were considered
necessary at the time for all humans to live in dignity. These included rights pertaining to
political and civil matters and socioeconomic conditions. Following the adoption of the
UDHR, the UN General Assembly sought to codify the rights contained in the UDHR in a
single, binding treaty. This intention was disrupted by the Cold War (1947-1991), which
refers to the political tension and ideological differences between Western, capitalist states
and communist countries following the Second World War. 259

To overcome the global political issues of the time, the UN drafted two treaties. The
first treaty, the International Covenant on Civil and Political Rights (ICCPR),260 focuses on
civil and political rights, including the rights of individuals to participate in public and
political affairs and the obligation on states to refrain from unreasonably interfering with
individuals. The second treaty, the International Covenant on Economic, Social and Cultural
Rights (ICESCR),261 deals with socioeconomic rights, including the rights to food, health and
work.262

257
These are commonly mentioned in the literature surrounding human dignity, but in particular, see Yechiel
Michael Barilan, Human Dignity, Human Rights, and Responsibility: The New Language of Global Ethics and
Biolaw (MIT Press, 2012) 299 <http://site.ebrary.com/lib/alltitles/docDetail.action?docID=10604332>; John
Kleinig and Nicholas G Evans, ‘Human Flourishing, Human Dignity, and Human Rights’ (2012) 32 Law and
Philosophy 539.
258
Customary international law is defined as those ‘international obligations arising from State practice, as
opposed to obligations arising from formal written international treaties’ (Malcom Shaw, Customary
International Law (2003) Cornell University Law School, Legal Information Institute, Wex Legal Dictionary/
Encyclopedia <http://www.law.cornell.edu/wex/legal_realism>.) See also, the Statute of the International Court
of Justice art 38(1)(b) where customary law is listed as a source of international law and the Vienna Convention
on the Law of Treaties, opened for signature 23 May 1969, 115 UNTS 331 (entered into force 27 January 1980)
art 38 where it provides that, while a treaty cannot create obligations for a third state without its consent, this
rule does not preclude a state being bound by a customary rule of international law.
259
See eg, Manisuli Ssenyonjo, Economic, Social and Cultural Rights in International Law (Bloomsbury
Publishing, 2009) 12–13; Jack Donnelly, Universal Human Rights in Theory and Practice (Cornell University
Press, 2013) 27.
260
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, UNTS
220A(XXI), vol.99 (entered into force 23 March 1976) (ICCPR).
261
International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966,
993 UNTS 3 (entered into force 3 January 1976) (ÍCESCR)
262
‘Frequently Asked Questions on Economic, Social and Cultural Rights’ (Fact Sheet No. 33, Office of the
United Nations High Commissioner for Human Rights) 8–9
 Despite the fact that these treaties seemingly classify rights, the UN does not recognise
a distinction between civil and political and socioeconomic and cultural rights. Instead, all
human rights are treated as: universal and inalienable; interdependent, equal and indivisible;
and achieved through active, free and meaningful participation and inclusion of all people.263
This approach is further supported by the preamble to both treaties, which recognise the
connection between civil and political rights and social, economic and cultural rights,264 as
well as the practical correlation between the lack of enjoyment of economic, social and
cultural rights with the denial of civil and political rights.265

3.2.2 A Rights-Based Approach

The RBA is a framework for human development based on human rights standards and
the promotion and protection of human rights.266 The OHCHR defined human rights-based
approaches as those ‘[p]lans, policies and processes for development [that] are anchored in a
system of rights and corresponding obligations established by international law’.267

In an attempt to create consistency and coherency, UN international institutions have

reached agreement on the three important elements of a RBA.268 Firstly, all regulatory
instruments must have the advancement of human rights as their ultimate objective.
Secondly, human rights principles must be integrated into the creation, implementation and
evaluation of regulation and programmes. Thirdly, development programmes must function
in such a way that the capabilities of rights-holders to make valid claims against state and
non-state actors are strengthened.

<http://www.ohchr.org/EN/Issues/ESCR/Pages/AreESCRfundamentallydifferentfromcivilandpoliticalrights.asp
x>.
263
Office of the United Nations High Commissioner for Human Rights, Frequently Asked Questions on a
Human Rights-Based Approach to Development Cooperation, UN Doc HR/PUB/06/8 (2006) 1; Vienna
Declaration and Programme of Action, Adopted by the World Conference on Human Rights (25 June 1993)
para 5 ‘all human rights are universal, indivisible and interdependent and interrelated’.
264
ICCPR preamble para 3; ICESCR preamble para 3.
265
Iain Byrne, ‘The Importance of Economic, Social and Cultural Rights in Guaranteeing Civil and Political
Rights within the Euro-Mediterranean Partnership’ (2004) 9 Mediterranean Politics 344; Ida Elisabeth Koch,
‘Economic, Social and Cultural Rights as Components in Civil and Political Rights: A Hermeneutic
Perspective’ (2006) 10 The International Journal of Human Rights 405.
266
Note that this is the legalistic rights-based approach. But rights language is also an approach used by various
groups to challenge power structures even though the rights being claimed may not be explicitly recognised in
legal instruments. See, eg, Claeys, above n 211.
267
Office of the United Nations Commissioner on Human Rights, Frequently Asked Questions on a Human
Rights-Based Approach to Development Cooperation, UN Doc HR/PUB/06/8 (2006) 15.
268
United Nations, The Human Rights-Based Approach to Development Cooperation: Towards a Common
Understanding Among the United Nations Agencies, Second Inter-Agency Workshop, Stamford: USA (May
2003).
3.2.3 Human Rights Obligations owed by States
An important function of human rights is the imposition of obligations on state organs
and potentially non-state actors and private individuals.269 Under human rights law, states are
obligated to ‘respect, protect and fulfil’ human rights.270 Interestingly, it was the then Special
Rapporteur on the Right to Food, Asbjørn Eide, who further developed a framework for
understanding the obligations owed by a state. Eide explained the obligations as follows:

1. The obligation to ‘respect’ requires states to abstain from violating a right;

2. The obligation to ‘protect’ requires states to prevent third parties from violating
that right; and

3. The obligation to ‘fulfil’ requires the state to take measures to ensure that the right
is enjoyed by those within the state’s jurisdiction.271 This obligation has two facets,
the first being to facilitate, the second being to provide. The former means that
states should facilitate peoples’ abilities to satisfy their own needs (eg land to farm,
roads to transport food on). The latter requires that states provide the right if the
realisation of the right is not otherwise possible (eg food aid).

Debatably, the human rights obligations owed by states have an extraterritorial effect,
that is, states can owe human rights duties to people outside of their own territory.272 The

269
For information on individual obligations, see eg, ‘Taking Duties Seriously: Individual Duties in
International Human Rights Law’ (Commentary, International Council on Human Rights Policy, 1999)
<http://www.ichrp.org/files/reports/10/103_report_en.pdf>; Human rights law in relation to non-state actors is
emerging and commentators debate its potential form and content. See, eg, Olufemi Amao, Corporate Social
Responsibility, Human Rights and the Law: Multinational Corporations in Developing Countries (Taylor and
Francis, 1st ed, 2011); John Gerard Ruggie, ‘Business and Human Rights: The Evolving International Agenda’
(2007) 101 The American Journal of International Law 819. As an example, individuals, even if acting through
state organs in a state that is not party to UN human rights instruments, can be held accountable for their acts or
omissions through the international criminal court if their state has consented to the court’s jurisdiction. The
jurisdiction of the International Criminal Court is restricted to particular crimes and only where states have
consented to its jurisdiction. Rome Statute of the International Criminal Court, opened for signature 17 July
1998, 2187 UNTS 90 (entered into force 1 July 2002) arts 5(b), 7.
270
This is referred to as the ‘tripartite typology’. See especially Henry Shue, Basic Rights: Subsistence,
Affluence, and U.S. Foreign Policy (Princeton University Press, 2nd ed, 1996) 52.
271
Asbjørn Eide, UN Special Rapporteur for the Right to Food, The Right to Adequate Food as a Human Right:
Final Report submitted by Asbjørn Eide, UN Doc E/CN.4/Sub.2/1987/23 (1987) [67]–[69]. See Ida Elisabeth
Koch, ‘Dichotomies, Trichotomies or Waves of Duties?’ (2005) 5 Human Rights Law Review 81, 81 where
Kock explained that the tripartite typology has ‘gained a footing among legal scholars and non-governmental
organisations…Moreover, the Committee on Economic Social and Cultural Rights has chosen to incorporate the
tripartite typology into its vocabulary’.
272
Some argue that there is a presumption against the extraterritorial application of human rights based on
Article 29 of the Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 115 UNTS 331
(entered into force 27 January 1980). This provision provides that ‘Unless a different intention appears from the
treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.’ Milanovic
argued that this argument is unfounded as Article 29 ‘deals with a specific problem — treaty-making by federal
extraterritorial effect of human rights is particularly relevant to food and agricultural issues
given the interdependencies between states for food security as a result of trade, investment
and aid relationships.273 Furthermore, agricultural activities conducted in one state can impact
on the realisation of human rights in another state (eg pesticide drift and water pollution). In
most chapters of this thesis, the potential for extraterritorial application of human rights
obligations is discussed.274

The argument that states owe extraterritorial obligations is particularly persuasive in the
case of the economic, social and cultural rights contained in the ICESCR, such as the right to
food. Unlike the ICCPR, the ICESCR does not mention a territorial or jurisdictional limit.
The ICCPR provides that ‘Each State Party to the present Covenant undertakes to respect and
to ensure to all individuals within its territory and subject to its jurisdiction the rights
recognized in the present Covenant’.275 Not only does the ICESCR leave out any similar
territorial or jurisdictional limits,276 but also it provides that ‘Each State Party to the present
Covenant undertakes to take steps, individually and through international assistance and co-
operation, …with a view to achieving progressively the full realization of the rights
recognized in the present Covenant [emphasis added]’.277 Clearly, this is far from an explicit
recognition that states owe human rights duties extraterritorially, however, there appears to be
some room, albeit limited, to apply the ICESCR extraterritorially.

Human rights bodies have adopted a broad understanding of extraterritorial human

rights obligations. The Human Rights Committee explained that state parties to the ICCPR

states or states with overseas dependencies — and creates a presumption in favour of the applicability of the
treaty to the whole territory of the state ie to all geographical areas over which it has title, unless a contrary
intention is established’. Marko Milanovic, Extraterritorial Application of Human Rights Treaties: Law,
Principles, and Policy (OUP Oxford, 2013) 10. A large body of work debates whether human rights apply
extraterritorially. For more information regarding the extraterritorial application of human rights and the debates
in this area, see eg, Christian Courtis and Magdalena Sepulveda, ‘Are Extraterritorial Obligations Reviewable
under the Optional Protocol to the ICESCR’ (2009) 27 Nordisk Tidsskrift for Menneskerettigheter 54.
273
Robert Mccorquodale, ‘Corporate Social Responsibility and International Human Rights Law’ (2009) 87
Journal of Business Ethics 385, 387.
274
The only chapter where extraterritorial obligations are not discussed is in Chapter 5 on soils. This is partly a
result of the ways in which laws have developed in relation to soils and because of the perception that it is a
localised issue.
275
ICCPR art 2(1).
276
In Takele Soboka Bulto, The Extraterritorial Application of the Human Right to Water in Africa (Cambridge
University Press, 2013) 49 the author explained that the application of human rights treaties without a
jurisdiction clause is ‘neither confined to the territory of a state party nor to the territories or persons over which
the state party has jurisdiction’. See also, Rolf Kunnemann, ‘Extraterritorial Application of the International
Covenant on Economic, Social and Cultural Rights’ in Fons Coomans and Menno T Kamminga (eds),
Extraterritorial Application of Human Rights Treaties (Intersentia Publishers, 2004) 201.
277
ICESCR art 2(1).
‘must respect and ensure the rights laid down in the Covenant to anyone within the power or
effective control of that State Party, even if not situated within the territory of the State
Party’.278 In relation to the ICESCR, the Office of the High Commissioner on Human Rights
(OHCHR) has extracted the extraterritorial obligations commonly identified in various
General Comments from the Committee on Economic Social and Cultural Rights
(CESCR).279 Based on this analysis, the OHCHR considers that states owe obligations to:

 Refrain from interfering with the enjoyment of human rights in other countries;

 Take measures to prevent third parties within their control, for example private
companies, from engaging in such interference;

 Take steps through international assistance and cooperation to facilitate the

fulfilment of human rights in other countries…; and

 Ensure that human rights are given due attention in international agreements and
that such agreements do not adversely impact human rights.280

Similarly, the International Court of Justice has applied the human rights obligations in
the ICESCR, the ICCPR and other human rights instruments to actions taken by a state in ‘the
exercise of its jurisdiction outside its own territory’.281 To date, the court has only applied
human rights obligations extraterritorially where a state is occupying another state’s territory,
which is the clearest example of a situation where a state is exercising its jurisdiction in
another territory.

278
Human Rights Committee, General Comment 31: Nature of the General Legal Obligation on States Parties
to the Covenant, 80th sess, 2187th mtg, UN Doc CPR/C/21/Rev.1/add13 (20 March 2004) (HRC General
Comment 31) para 10. Note though that effective control can be extremely difficult to establish. For instance,
the European Court of Human Rights in Bankovic v Belgium [2001] XII Eur Court HR 890 found that the
deliberate dropping of bombs by states under NATO onto another (Serbia) did not satisfy ‘effective control’. In
para [71], the court explains that ‘The case-law of the Court demonstrates that its recognition of the exercise of
extraterritorial jurisdiction by a Contracting State is exceptional: it has done so when the respondent State,
through the effective control of the relevant territory and its inhabitants abroad as a consequence of military
occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all
or some of the public powers normally to be exercised by that Government.’
279
Office of the High Commissioner for Human Rights, Report of the Office of the United Nations High
Commissioner for Human Rights on the Relationship between Climate Change and Human Rights, 10th session,
Agenda Item 2, UN Doc A/HRC/10/61 (15 January 2009) (2009 OHCHR Report) 24, [86].
280
Ibid.
281
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion)
[2004] ICJ Rep 136, 180 [111] where the court concluded that ‘In conclusion, the Court considers that the
International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the
exercise of its jurisdiction outside its own territory’. This approach was affirmed in the Armed Activities on the
Territory of the Congo (Democratic Republic of the Congo v. Uganda) [2005] ICJ Rep 168, 243 [216].
 In order to clarify extraterritorial obligations for economic, social and cultural rights, a
network of non-state actors formulated the non-binding Maastricht Principles.282 These
principles suggest that states are required to respect, protect and fulfil human rights within
and beyond their territory in any of the following situations:

 Where a state exercises authority or effective control;

 Where a state acted or omitted to do something and it is foreseeable that economic,

social and cultural rights would be negatively affected within or outside of its
jurisdiction;

 Where a state organ (executive, legislative or judicial) is able to strongly influence

or take measures to realise economic, social and cultural rights extraterritorially.283

The extra-territorial application of human rights obligations will be considered where

relevant throughout this thesis with reference to the various interpretations of such
obligations.

3.2.4 Non-State Actors and Human Rights Obligations

Arguably, UN organs and specialised agencies, including the World Bank, the WTO
and the International Monetary Fund (IMF), owe human rights obligations when carrying out
their programmes and other actions.284 This is because inter-governmental organisations have
international legal personality, that is, they claim certain rights and have corresponding duties
to fulfil at the international level.285 The fact that inter-governmental organisations have
human rights obligations is especially persuasive where a right has jus cogens status.286

282
These principles were developed at the ‘ETO Consortium’, which is a network of 80 human rights-related
non-governmental organisations and scholars including the International Commission of Jurists. For more
information, see ETO Consortium: Extraterritorial Obligations <http://www.etoconsortium.org/en/about-us/eto-
consortium/>. ETO Consortium, Maastricht Guidelines Extraterritorial Obligations of States in the Area of
Economic, Social and Cultural Rights, adopted January 2013
<http://www.etoconsortium.org/nc/en/library/maastricht-principles/?tx_drblob_pi1%5BdownloadUid%5D=23>
(Maastricht Guidelines).
283
Maastricht Guidelines art 9(a)-(c).
284
See, eg, Walter Kälin and Jörg Künzli, The Law of International Human Rights Protection (Oxford
University Press, 2010) 132–133; Sigrun Skogly, Human Rights Obligations of the World Bank and the IMF
(Routledge, 2012); Andrew Clapham, Human Rights Obligations of Non-State Actors (Oxford University Press,
2006).
285
Clapham, above n 283, ch 2; See also, Tawhida Ahmed and Israel de Jesús Butler, ‘The European Union and
Human Rights: An International Law Perspective’ (2006) 17 European Journal of International Law 771 who
suggest a range of other ways in which to conceptualise the human rights obligations of an inter-governmental
organisation.
286
Jus Cogens is defined in Wex as ‘certain fundamental, overriding principles of international law, from which
no derogation is ever permitted’. Boris Mamlyuk, ‘Jus Cogens’ <https://www.law.cornell.edu/wex/jus_cogens>.
Although some have argued that the right to food and the right to life have jus cogens
status,287 their status remains debatable.

As discussed in Chapter 2 and throughout the thesis, agriculture and food systems are
highly influenced by the decisions and actions of transnational corporations (TNCs). Under
human rights law, states are obligated to protect against actions by non-state actors such as
TNCs within their territories that infringe on human rights.288 In cases before regional human
rights commissions, this obligation has been affirmed, as commissions have found that states
breached their obligations to protect people from human rights violations stemming from a
corporation’s activities.289

It is also possible for a state to have breached its human rights obligations where
violations of human rights by corporate actors can be attributed to state organs or where a
state fails to take appropriate steps to ‘investigate, punish and redress’ corporate actors’
breaches.290 Furthermore, the Human Rights Council (HRC) has approved the ‘protect,
respect and remedy’ framework proposed by Professor John Ruggie that conceptualises
TNCs’ human rights obligations.291 As a result, progress has been made towards a clearer and
hopefully more effective framework for business-related human rights breaches, with more
advances in the area expected.292

For more information, see, Gideon Boas, Public International Law: Contemporary Principles and Perspectives
(Edward Elgar Publishing, 2012) 95–101.
287
Francisco Forrest Martin et al, International Human Rights and Humanitarian Law: Treaties, Cases, and
Analysis (Cambridge University Press, 2006) 37–38.
288
Mccorquodale, above n 272, 387.
289
See, eg, Velasquez Rodriguez Case [1998] Inter-Am.Ct.H.R. (Ser. C) No. 4, [166]-[174]. For instance, at
[172] the court explained ‘An illegal act which violates human rights and which is initially not directly
imputable to a State (for example, because it is the act of a private person or because the person responsible has
not been identified) can lead to international responsibility of the State, not because of the act itself, but because
of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.’ The same
approach was adopted in Zimbabwe Human Rights NGO Forum v Zimbabwe (2006) AHRLR 128, 160. See
also, X and Y v. The Netherlands (1985) 8 EHRR 235, where the European Court on Human Rights found that a
state’s failure to prosecute a private actor was a violation of the obligation to protect.
290
John Ruggie, Report of the Special Representative of the Secretary-General on the issue of human rights and
transnational corporations and other business enterprises: Guiding Principles on Business and Human Rights:
Implementing the United Nations “Protect, Respect and Remedy” Framework, UN Doc A/HRC/17/31 (21
March 2011) (Guiding Principles on Business and Human Rights) Principle 1.
291
John Ruggie, Protect, Respect and Remedy: A Framework for Business and Human Rights, Report of the
Special Representative of the Secretary-General on the issue of human rights and transnational corporations
and other business enterprises, United Nations Human Rights Council, UNHRC Res 8/5, 8th sess, Agenda item
3, UN Doc A/HRC/8/5 (7 April 2008).
292
John Gerard Ruggie, Just Business: Multinational Corporations and Human Rights (W W Norton &
Company Incorporated, 2013) 67–68.
3.3 THE VALUE OF A RIGHTS-BASED APPROACH TO FOOD SECURITY

Food security is the predominant objective of food and agriculture regulation at the
international level and has been incorporated into numerous international policy documents
and agreements.293 As a policy concept, food security has adjusted to evolving
understandings of the causes behind food insecurity.294 It has proven itself an adaptable and
useful policy concept as new food and agricultural issues have emerged, such as the obesity
epidemic or the effects of climate change on agriculture. At the same time, food security
encapsulates broader notions of human development, security and international peace.
Through its dimensions, food security intersects with and helps conceptualise the impact of a
wide range of issues from water scarcity and climate change through to food safety, gender
inequality and micronutrient deficiencies. Subsequently, it is a policy concept with a strong
and enduring political and legal legitimacy.

Despite these benefits, food security has limitations that a RBA can address. Food
security does not contain approaches to achieving nor does it refer to its foundational
values.295 Furthermore, food security does not directly engage with the inequalities and power
imbalances that cause a person to lack adequate food.296 Nor does food security provide
accountability mechanisms to ensure that it is being progressed. While on paper food security
has become a multidimensional objective, previous, reductionist understandings persist.297

293
See generally, John Shaw, World Food Security: A History since 1945 (Palgrave Macmillan, 2007) for a
summary on the various efforts within the United Nations to ensure food security for all.
294
The evolution of food security as a policy concept was discussed in Chapter 1 under terminology (section
1.5).
295
Patel, ‘Food Sovereignty’, above n 249, 665 where the author explains ‘From a state perspective, the absence
of specification about how food security should come about was diplomatic good sense – to introduce language
that committed member states to particular internal political arrangements would have made the task of agreeing
on a definition considerably more difficult.’
296
This is a common critique from food policy literature. See, eg, Maxx Dilley and Tanya E Boudreau, ‘Coming
to Terms with Vulnerability: A Critique of the Food Security Definition’ (2001) 26 Food Policy 229 where the
authors suggest incorporating the concept of vulnerability into food security. See also, William D Schanbacher,
The Politics of Food: The Global Conflict Between Food Security and Food Sovereignty (ABC-CLIO, 2010).
297
See, eg, Robert Alcock, ‘Speaking Food: A Discourse Analytic Study of Food Security’ (Working Paper No.
07-09, University of Bristol, School of Sociology, Politics and International Studies, 2009) 13
<http://www.bristol.ac.uk/media-library/sites/spais/migrated/documents/alcock0709.pdf> who examined food
security discourses and commented that the emphasis on how food security has evolved and the idea that the
current definition replaces the previous is incorrect. As Alcock stated ‘Dicursive change, however, defies such
linear boundary drawing; the trace of the old is always already present in the new forms’. The continued use of a
one-dimensional understanding of food security was discussed in the previous chapter.
3.3.1 Contribution of a Rights-Based Approach to Food Security
3.3.1.1 Means
Food security as a policy objective does not contain any guidance about how it should
be achieved. For instance, the concept does not engage with the procedures, approaches or
socioeconomic conditions required to achieve it.298 Put simply, food security is just an
objective. Partly, its limited instrumental value reflects the difficulties of reaching an agreed
approach to improving food security among member states and other international actors.299
At the same time, the concept’s lack of clarity has arguably fed into the normative dissonance
discussed in the previous chapter.

There are two main ways in which human rights law can inform how food security
should be progressed in international regulatory instruments. The first relates to procedural
principles in human rights law. The second is the interpretations and guidance provided by
human rights bodies on the right to food.

(a) Procedural principles in a rights-based approach

A RBA holds that the policies and regulations for reducing food insecurity must be
based on the norms and values underpinning human rights law. Although a RBA does not
explicitly explain how each state and international institution should proceed in relation to
food security, it provides general principles that must be incorporated when formulating and
implementing food security related policies and laws.

Some of the main human rights principles relevant to food security are outlined in the
table below.300 For any international regulatory instrument to align with a RBA, the process

298
Socioeconomic inequalities are indirectly addressed. For instance, the food access limb of food security deals
with socioeconomic inequalities by encompassing economic access to food.
299
Patel, ‘Food Sovereignty’, above n 249, 665 where the author explains ‘From a state perspective, the absence
of specification about how food security should come about was diplomatic good sense – to introduce language
that committed member states to particular internal political arrangements would have made the task of agreeing
on a definition considerably more difficult.’
300
The FAO outlined these principles after an analysis of human rights instruments. They refer to this set of
principles as the ‘PANTHER FRAMEWORK’ (representing the first letter of each of the principles). Right to
Food: Human Right Principles: PANTHER (2015) Food and Agriculture Organization of the United Nations
<http://www.fao.org/righttofood/about-right-to-food/human-right-principles-panther/en/>. Human rights
principles are generally based on customary rules or reiterate norms already existing in human rights
instruments. For instance, the principle of transparency can be found in ICCPR art 19 in relation to access to
information. Note though that human dignity is not included in the table. Although the PANTHER framework
includes human dignity, the concept is not as directly procedural in nature as the other principles, and because
human dignity is discussed in a following section on ends, it was left out here. Human dignity, however, as the
foundation of human rights, must inform procedures.  
of establishing that instrument and the procedures for implementing it must reflect these
principles. In addition to these principles, a RBA places emphasis on the most vulnerable or
marginalised groups as opposed to aggregate measures (eg GDP). Thus, in relation to food
security, the special treatment that must be given to groups that are food insecure or more
vulnerable to food insecurity can help determine competing priorities.
Principle Sources Explanation
Non- Art 2 UNDHR; arts 2(2), 3 ICESCR; arts Prohibits discrimination on numerous grounds including race and gender. Decision-making
Discrimination 2(1), 3 ICCPR. can never be based on such differences unless required for positive legal measures to ensure
and Equality the protection and effective participation of marginalised groups. Emphasises equality before
the law and the equal worth of all humans.301
Rule of Law Arts 6-12 UNDHR; art 2(1) ICESCR; Everyone including the state itself is equal before the law and is accountable to laws that are
ICCPR generally but particularly arts 9, ‘publicly promulgated, equally enforced and independently adjudicated, and which are
10, 12, 13. consistent with international human rights norms and standards’.302
Accountability Art 2(1)-(2) ICCPR; art 2(1) ICESCR. States and other duty-bearers have given their consent to be bound by human rights treaties.
Rights-holders must have avenues to seek redress where a state breaches its obligations.
Other stakeholders such as NGOs and media also enforce accountability. This principle
reveals the strong connection between civil and political rights (eg access to justice) and the
realisation of economic, social and cultural rights.
Participation Arts 13(1) 19(2) ICCPR.303 Meaningful participation in decision-making processes by stakeholders through, for instance,
and advisory boards and public hearings. Transparency relates to freedom of information and the
Transparency need for political and institutional processes that are open and transparent.304
Empowerment Based in principles of human rights from Requires that people are able to make their own decisions and exert authority and influence
UDHR.305 over the direction of their lives. Empowerment relates to concepts such as access to justice,
accountability and the rule of law.306
Table 3.1 Human Rights Principles

301
ICESCR art 2(2) ‘The State Parties to the present Covenant undertake to guarantee that the rights enunciated in the present covenant will be exercised without
discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property birth or other status’. Article 3 reads ‘The
States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the
present Covenant’. Similar wording is provided in the ICCPR arts 2(1) and 3. In relation to special treatment or positive discrimination see, Human Rights Committee,
General Comment 23, Article 27, Compilation of General Comments and General Recommendations, 50th sess, UN Doc HRI/GEN/1/Rev.1 at 38 (1994) paras 6.1-6.2.
302
The rule of law and transitional justice in conflict and post-conflict societies, Report of the Secretary-General, UN Doc S/2004/616 (23rd August 2004) [6].
303
See also, Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, A/RES/61/106 (entered into force 3 May 2008) arts 4(3) and 35(4);
304
Office of the United Nations High Commissioner for Human Rights, Good Governance Practices for the Protection of Human Rights, UN Doc HR/PUB/07/4 (2007) 5-6.
305
See, eg, Legal empowerment of the poor and the eradication of poverty, Report of the Secretary-General, UN Doc A/64/133, 64th sess (July 2009) [12] where it states
‘…the Commission on Legal Empowerment of the Poor fully recognizes that the concept of legal empowerment is anchored in basic principles of human rights articulated in
the 1948 UNDHR and the subsequent universal and regional international human rights conventions…’.
306
Ibid. See also, Dan Banik (ed), Rights and Legal Empowerment in Eradicating Poverty (Ashgate Publishing, Ltd., 2008) where various authors discuss legal and political
empowerment as part of a rights-based approach.

78 Chapter 3: A Rights-Based Approach to Food Security as the Normative Basis

 (b) Human right to food

The human right to adequate food provides instrumental value to food security
as it has been extensively interpreted by human rights bodies and incorporated into
various international institutional guidelines.307 The fact that all humans are
inherently entitled to adequate food was recognised in the UDHR,308 and reaffirmed
in Article 11 of the ICESCR. Article 11 recognises ‘[t]he right of everyone to an
adequate standard of living for himself and his family, including adequate food’. The
ICESCR puts the onus on state Parties to ‘[t]ake appropriate steps to ensure the
realization of this right’.309 In placing this onus on states, the ICESCR also
recognised ‘[t]he essential importance of international co-operation based on free
consent’. This suggests that states need to cooperate in order to achieve the right to
food, and so seems to support the view that the right to food can be extraterritorially
owed.310

The CESCR adopted General Comment No.12 on the Right to Adequate Food
in order to provide advice for interpreting and implementing the right to food in
Article 11 of the ICESCR. 311 It described the content of the right to food as:

 The availability of food in a quantity and quality sufficient to satisfy the

dietary needs of individuals, free from adverse substances, and acceptable
within a given culture;

 The accessibility of such food in ways that are sustainable and that do not
interfere with the enjoyment of other human rights.312

307
While not mentioned here, the FAO’s Guidelines on the Progressive Realisation of the Right to
Food are useful.
308
Universal Declaration of Human Rights, opened for signature 10 December 1948, 217 A (III) UN
Doc A/810, art 25(1) provides that: ‘Everyone has the right to a standard of living adequate for the
health and well-being of himself and his family, including food’
309
Along with Article 2(1) of the ICESCR, Article 11 explicitly refers to the principle of progressive
realisation. At its core, the principle of progressive realisation is an obligation placed on states to work
towards progressively achieving the full realisation of economic, social and cultural rights.
310
Read together with art 2 of the ICESCR, the right to food requires steps taken by states individually
and through international co-operation. The ways in which the state progresses the right to food is to
be evaluated in light of the state’s maximum available resources
311
Human Rights Committee, ‘General Comment 12, Right to adequate food’ (Twentieth session,
Committee on Economic, Social and Cultural Rights, U.N. Doc. E/C.12/1999/5 (1999) para 6
(General Comment No. 12).
312
General Comment No. 12 [8].
 For signatories to the ICESCR, this content must be incorporated into domestic
and international legal structures.313

The ‘respect, protect and fulfil’ framework in relation to the right to food also
adds instrumental value to food security. Paragraph 15 of General Comment No. 12
outlines the obligations on the state as follows:

1. Respect (do not harm): ‘The obligation to respect existing access to

adequate food requires States parties not to take any measures that result in
preventing such access’.

2. Protect (prevent harm by third parties): ‘The obligation to protect requires

measures by the State to ensure that enterprises or individuals do not
deprive individuals of their access to adequate food’.

3. Fulfil:

i. Fulfil (facilitate): ‘The obligation to fulfil (facilitate) means the State

must pro-actively engage in activities intended to strengthen people's
access to and utilization of resources and means to ensure their
livelihood, including food security’.
ii. Fulfil (provide): ‘Whenever an individual or group is unable, for
reasons beyond their control, to enjoy the right to adequate food by
the means at their disposal, States have the obligation to fulfil
(provide) that right directly. This obligation also applies for persons
who are victims of natural or other disasters’.

In order to protect, respect and fulfil the right to food, each state is required to
create, alone and through international cooperation, enabling regulatory frameworks
and protections.314 Accordingly, states when participating in the creation of
international regulatory arrangements should ensure an enabling regulatory
environment is being created that is conducive to the realisation of human rights at
the national level.

Similar to human rights more generally, a state is not the only important actor
for creating an enabling international and national environment for food security. At

313
Olivier De Schutter, Final Report: The transformative potential of the right to food, UN Doc
A/HRC/25/57 (24 January 2014) para 2.
314
General Comment No. 12 [21].
the end of his term as the Special Rapporteur on the Right to Food, De Schutter
concluded that all international actors must acknowledge their duties to marginalised
groups and coherently address the ‘[p]olitical economy of food systems- the question
of who decides, on the basis of what information, and under which accountability
mechanisms’.315 In other words, international institutions need to work towards a
clear, ordered and integrated international governance framework for food and
agriculture with socially legitimate international institutions and strong
accountability mechanisms. This point is supported by the human rights obligations
owed by particular international institutions, as discussed in part 3.2.4.316

In summary, human rights law generally, and the right to food in particular,
add instrumental value that the objective of food security alone does not provide.
This contribution is especially important for critically analysing regulatory responses
because it provides legally legitimate standards to consider international regulatory
frameworks against.

3.3.1.2 Intrinsic values

Food security as an objective does not adequately draw attention to the values
that make attaining food security important and which could shape the means
through which food security can be progressed. A RBA identifies human dignity as
the reason why food security should be progressed. If human dignity is the
underlying rationale for improving food security, then regulatory interventions that
intersect with the activities that underpin food security such as agriculture should be
based on this ultimate rationale. Put differently, acknowledging human dignity as the
basis for addressing food insecurity can inform the means taken to improve food
security.317

3.3.1.3 Empowerment
Food security discourses do not encourage participation from those in
marginalised communities in the creation of food and agriculture regulation. As Patel
explained ‘The history of the world food system is one of a few elites in a handful of

315
Olivier De Schutter, Final Report: The transformative potential of the right to food, UN Doc
A/HRC/25/57 (24 January 2014) para 49.
316
See part 2A(ii)(a) of this chapter.
317
These challenges were outlined in the previous chapter.
countries telling the world how it was going to eat, and how best to feed itself…
Food security, in other words, has a built-in democratic deficit’.318 Essentially, Patel
was arguing that food security is not an empowering concept that draws attention to
the impacts of discrimination and inequality on food security and seeks to overcome
these issues.

In contrast, human rights language has a history of being used to empower

marginalised groups since the end of the Second World War.319 The ‘rights frame’ is
recognised as one of the main ideologies used in social movements to identify issues,
challenge power imbalances and express demands.320 Accordingly, Claeys observed
that ‘Rights have provided a common language to organizations which are
politically, culturally, and ideologically radically different’.321 Further, sociologists
have found that social movements based on established international norms, such as
human rights, are likely to be more successful than social movements using other
frames. 322 This is partly because basing claims on accepted international norms like
human rights can mobilise international pressure on state governments.

Food Sovereignty, which as discussed in Chapter 2 is a key political concept and

social movement in the area of food and agricultural governance, uses human rights
law to strengthen its claims. Knuth explained that:

Right to food mechanisms can be used for the promotion of food

sovereignty claims: for example, the right to food as a human right implies

318
Raj Patel, ‘Food Sovereignty – A Brief Introduction’ (2009) <http://rajpatel.org/2009/11/02/food-
sovereignty-a-brief-introduction/>.
319
For an example, see eg, Stephen P Marks and Ramya Naraharisetti, ‘Cambodia: Civil Society,
Power and Stalled Democracy’ in Bård A Andreassen and Gordon Crawford (eds), Human Rights,
Power and Civic Action: Comparative Analyses of Struggles for Rights in Developing Societies
(Routledge, 2013) 189, 212 where Cambodian NGOs used rights language as a tool for empowerment;
See also, James C Franklin, ‘Human Rights Contention in Latin America: A Comparative Study’
(2013) 15 Human Rights Review 139 who examines the history of human rights claims in Latin
American countries from 1981-1995.
320
Robert D Benford and David A Snow, ‘Framing Processes and Social Movements: An Overview
and Assessment’ (2000) 26 Annual Review of Sociology 611, 619; Steve Valocchi, ‘The Emergence of
the Integrationist Ideology in the Civil Rights Movement’ (1996) 43 Social Problems 116, 120.
321
Claeys, above n 211, 846.
322
Kiyoteru Tsutsui and Hwaji Shin, ‘Global Norms, Local Activism, and Social Movement
Outcomes: Global Human Rights and Resident Koreans in Japan’ (2008) 55 Social Problems 391;
Kiyoteru Tsutsui, Claire Whitlinger and Alwyn Lim, ‘International Human Rights Law and Social
Movements: States’ Resistance and Civil Society’s Insistence’ (2012) 8 Annual Review of Law and
Social Science 367; Sidney G Tarrow, Power in Movement: Social Movements and Contentious
Politics (Cambridge University Press, 2011) 256; See generally, Thomas Risse, Stephen Ropp and
Kathryn Sikkink (eds), The Power of Human Rights: International Norms and Domestic Change
(Cambridge University Press, 1999).
 the application of the participatory approach to food security on the basis of
the human rights principle of participation.323

In line with this, La Via Campesina, an international coalition of small-scale farmers

and origin of food sovereignty, has positioned human rights as a transformative
concept that is intertwined with food sovereignty. They explain that ‘For the Global
Campaign for Agrarian Reform, the basic starting point consists in the human right
to feed oneself and the right of farmers to produce and safeguard their food
sovereignty’.324 From this perspective, there is the right to food and the right to food
sovereignty. The group notes the persuasiveness of human rights by commenting that
‘…discussing agrarian reform in terms of human rights means discussing the legal
obligations which states have to comply with. In this sense, agrarian reform
programs are not simply questions of ‘best practices’ and policy choices’.325 This
aligns with the idea that ‘rights are prima facie trumps’.326 Thus, La Via Campesina,
and the food sovereignty movement more broadly, use human rights to shifts the
burden of proof to those who would argue that the right should be secondary to
another action or need.

In addition to the more intangible empowering influence of human rights, most

human rights principles relate to the empowerment of marginalised groups (eg
equality, transparency and participation), and human rights law explicitly includes
the principle of empowerment.327 Empowerment in this context involves ‘the process
of enabling a person or groups to participate more fully as rights bearing entities
within a society and state’.328 Subsequently, empowerment is closely connected to
civil and political rights under the ICCPR.329

323
Lidija Knuth, ‘The Right to Adequate Food and Indigenous Peoples: How Can the Right to Food Benefit
Indigenous Peoples?’ (Right to Food Unit, Food and Agriculture Organisation of the United Nations, 2009) 60,
20 <http://www.fao.org/docrep/016/ap552e/ap552e.pdf>.
324
‘Global Campaign for Agarian Reform Working Document: Commentary on Land and Rural Development
Policies of the World Bank’ (La Via Campesina; Food First Information and Action Network, 2004) 12, 11
<http://viacampesina.net/downloads/PDF/Global_Campain_WB_policies_factsheet.en.pdf>.
325
Ibid.
326
Jack Donnelly, Universal Human Rights in Theory and Practice (Cornell University Press, 2013) 7.
327
See the above table.
328
Peter Cane and Joanne Conaghan, The New Oxford Companion to Law (Oxford University Press,
2008) 374.
329
See, eg, ICCPR art 25 ‘Every citizen shall have the right and the opportunity…to take part in the
conduct of public affairs, directly or through freely chosen representatives’.
 The then United Nations High Commissioner on Human Rights, Louise
Arbour, noted another dimension to empowerment that is relevant for the analysis
here on international regulation.330 Arbour explained that empowerment ‘[i]s also
about equipping those with a responsibility to implement human rights with the
means to do so. The role of international actors is to support and encourage national
reform initiatives’.331 Accordingly, and similar to the previous discussion on means,
a RBA draws attention to the need for enabling international arrangements that
empower others to progress human rights. Overall then, a RBA brings empowerment
into the concept of food security in a number of ways, such contribution is critical
given that those who are currently food insecure are more likely to be
marginalised.332

3.3.1.4 Accountability mechanisms

Apart from Millennium Development goals that set targets to reduce hunger,333
food security lacks accountability mechanisms. Nonetheless, human rights have a
number of monitoring and review processes in place. In fact, these processes are
much more developed than other international regimes, particularly the
environmental law regime.

Under the ICESCR and the ICCPR respectively, state parties are required to
provide periodic reports to the CESCR and the Human Rights Committee regarding
their compliance with their obligations.334 The CESCR and the Human Rights
Committee review the respective reports, and consider evidence such as submissions
by NGOs.335 In response to the reports, the Committees provide concluding
observations that express areas of concern and recommendations. Beyond treaty

330
Louise Arbour, United Nations High Commissioner on Human Rights: The OHCHR Plan of
Action: Protection and Empowerment, (May 2005) <http://www2.ohchr.org/english/planaction.pdf>.
331
Ibid [37].
332
This is due to the access dimension to food security. Poor people are more likely to not have
economic access to food.
333
In relation to the Millennium Development Goals, these objectives are quantified targets for
reducing extreme poverty agreed to by UN members. Goal 1 was to halve the proportion of people
who suffer from hunger from 1990 to 2015, and Goal 7 was to ensure environmental sustainability by,
for instance, reducing carbon emissions and improving tenure security. See, United Nations
Millennium Declaration, GA Res 55/7, UN GAOR, 55th sess, 8th plen mtg, Agenda Item 60(b), UN
Doc A/Res/55/2 (8 September 2000) [19],[22]-[23].
334
ICESCR arts 16-17; ICCPR art 40.
335
NGO participation in activities of the Committee on Economic, Social and Cultural Rights, UN
Doc E/C.12/1993/WP.14, (12 May 1993).
bodies, the Human Rights Committee appoints Special Rapporteurs with specific
mandate of following up on concluding observations.336

Since 2013, an individual complaint mechanism has been established under the
Optional Protocol to the ICESCR.337 This instrument allows individuals or groups
that are citizens of a state that has ratified the protocol to submit a complaint to the
CESCR for its consideration. After receiving a response from the state party to the
complaint, the CESCR will provide a report of its findings together with
recommendations.338 The state must consider the report and respond with any
remedies or measures it has adopted. The CESCR can conduct follow-up reviews,
initiate an inquiry and publish its findings to UN bodies.339 In certain circumstances,
a trust fund can be created to provide expert and technical assistance to the state
party to enhance its implementation of the ICESCR.340

In addition to these processes, some Special Rapporteurs are mandated to

examine and report on particular human rights. These Rapporteurs are appointed by
the HRC and act as independent experts who:

 Review countries’ compliance through country visits;

 Receive and consider complaints from victims of human rights violations;

 Cooperate with states, UN bodies, NGOs, as well as other relevant

stakeholders;

 Carry out research and study on relevant issues;

 Provide recommendations for programmes and law reforms;

336
‘Civil and Political Rights: The Human Rights Committee’ (Fact Sheet (Rev.1) 15, Office of the
High Commissioner for Human Rights) 3 ‘The Four Monitoring Functions of the Committee’
<http://www.ohchr.org/Documents/Publications/FactSheet15rev.1en.pdf>.
337
Optional Protocol to the International Covenant on Economic, Social and Cultural Rights,
opened for signature 24 September 2009, UN Doc.A/63/435 (entered into force 5 May 2013). The
ICCPR has had a similar complaint procedure in place since 1976. Because the ICCPR is less directly
relevant to food and agriculture as the ICESCR, it will not be further explained. See, Optional
Protocol to the International Covenant on Civil and Political Rights, opened for signature 16
December, Assembly resolution 2200A(XXI), (entered into force 23 March 1976).
338
Ibid art 9.
339
Certain conditions must be met before these inquiries and processes can be undertaken. See Ibid art
11.
340
Ibid art 14.
  Report to states and the HRC. 341

There are Special Rapporteurs for a range of human rights related to food and
agriculture including the rights to: food, culture, healthy environments, physical and
mental health, housing, safe drinking water and sanitation. Furthermore, there are
various Special Rapporteurs on the right to be free from, for instance, extreme
poverty, and Special Rapporteurs for the particular rights of marginalised groups
such as minorities. The oversight offered by these actors can and often does intersect
with food and agricultural issues.

3.3.2 Critiques of Rights-Based Approaches

Despite the potential for human rights to inform and improve food security as a
concept, critiques of human rights law are plentiful. Commentators need only point
out that the fulfilment of human rights to date has radically failed.342 For instance,
after examining recent human rights violations and tracing the history of human
rights, Posner observed:

At a time when human rights violations remain widespread, the discourse of

human rights continues to flourish…It is hard to avoid the conclusion that
governments continue to violate human rights with impunity…The truth is
that human rights law has failed to accomplish its objectives.343

As Posner pointed out, the effectiveness of human rights law is often largely
dependent on the actions of state organs and the continued violations of human rights

341
‘Seventeen Frequently Asked Questions about United Nations Special Rapporteurs’ (27, United
Nations High Commissioner for Human Rights, April 2001) 24
<http://www.ohchr.org/Documents/Publications/FactSheet27en.pdf>. Human Rights Committee, The
Right to Food, Commission on Human Rights resolution 2000/10 (17 April 2000) arts 10-11.
342
See, eg, Eric Posner, The Twilight of Human Rights Law (Oxford University Press, 2014); Emilie
M Hafner‐Burton and Kiyoteru Tsutsui, ‘Human Rights in a Globalizing World: The Paradox of
Empty Promises’ (2005) 110 American Journal of Sociology 1373; Makau Mutua, Human Rights: A
Political and Cultural Critique (University of Pennsylvania Press, 2013) 20. To an extent, empirical
studies support this argument. For instance, Hathaway conducted a statistical inquiry into human
rights records and the ratification of human rights treaties. She found that ‘[n]ot a single treaty for
which ratification seems to be reliably associated with better human rights practices and several for
which it appears to be associated with worse practices’. Oona A Hathaway, ‘Do Human Rights
Treaties Make a Difference?’ (2002) 111 The Yale Law Journal 1935, 1940. Hathaway hypothesised
that countries with worse human rights records may be more likely to ratify human rights treaties or
human rights violations committed by countries that have ratified human rights treaties may be more
documented/known about because the country has a ratified human rights treaty.
343
Eric Posner, ‘The Case against Human Rights’ The Guardian, 4 December 2014
<http://www.theguardian.com/news/2014/dec/04/-sp-case-against-human-rights>. Note Posner is a
US Law Professor at the University of Chicago Law School. See, eg, Eric A Posner, ‘Human Welfare,
Not Human Rights’ (2008) 108 Columbia Law Review 1758.
indicate that human rights law is failing to achieve its objectives. The argument that
human rights has not generally led to effective social change is commonly put
forward by scholars.344 The gap between human rights on paper and their realisation
in reality fuels arguments that human rights law is in crisis and unable to respond to
current and future challenges facing humanity.345

The viewpoint that human rights have been ineffective at protecting and
facilitating the realisation of human rights takes a narrow conception of the role of
human rights law. Instead, human rights can be seen as a way to ‘[h]arness the
emancipatory potential within the law — that within the law action, disruption, and
potential alternative ways of constructing the world are possible’.346 In other words,
human rights are not yet effectively influencing state actions in most situations; yet
human rights law provides an alternative vision for how the world could be and acts
as a frame through which to analyse issues and mobilise groups and resources.
Kamenka explained that:

Claims presented as rights are claims that are often, perhaps usually,
presented as having a special kind of importance, urgency, universality, or
endorsement that makes them more than disparate or simply subjective
demands… Like moral claims, it asserts in its own behalf moral and
sometimes even logical priority.347

Kamenka was referring to the fact that asserting legal rights gives claims a
greater level of legal, moral and social legitimacy. In particular, the legal legitimacy
of human rights law strengthens its influence on the behaviour of others and fortifies
the negotiating positions of less resourced groups.

344
For a useful summary of this perspective on the ineffectiveness of human rights law, see Karl E
Klare, ‘Legal Theory and Democratic Reconstruction: Reflections on 1989’ (1991) 25 University of
British Columbia Law Review 69, 98–97; See also Emilie Hafner-Burton, Making Human Rights a
Reality (Princeton University Press, 2013) ch 6.
345
See, eg, Daniel Augenstein, ‘The Crisis of International Human Rights Law in the Global Market
Economy’ (Research Paper No.2014/118, Robert Schuman Centre for Advanced Studies, 2014)
<http://papers.ssrn.com/abstract=2535218>; Richard Burchill, ‘International Human Rights Law:
Struggling between Apology and Utopia’ in Alice Bullard (ed), Human Rights in Crisis (Ashgate
Publishing, Ltd., 2008) 49; Samuel Moyn, The Last Utopia (Harvard University Press, 2012); See also
Stephen Hopgood, The Endtimes of Human Rights (Cornell University Press, 2013) ix who argued
‘[w]e are on the verge of the imminent decay of the Global Human Rights Regime’.
346
Alison Kesby, The Right to Have Rights: Citizenship, Humanity, and International Law (OUP
Oxford, 2012) 136.
347
Eugene Kamenka, ‘Human Rights, Peoples’ Rights’ in James Crawford (ed), The Rights of peoples
(Clarendon Press, 1988) 127, 127.
 Another key criticism is that human rights are entrenched in Western
philosophies that are individualistic and do not align with or respect non-Western
cultures, and particularly those cultures that are more communal.348 This has cast
doubt on whether human rights are really appropriate for and capable of universal
application.349 As a result, human rights law may continue the international trend of
subordinating non-Western cultures and societies.

Gonzalez, in critiquing the universality of human rights, emphasised the

importance of recognising and challenging the ‘[c]ertain grand narratives that
maintain Northern hegemony, including the tendency of Northern states and non-
governmental organizations (the “saviours”) to target Southern states (the “savages”)
for human rights violations without taking into account Northern complicity’.350
Thus, human rights law can be understood as another product of Western power
structures that perpetuate inequalities between and within states.351

Sen and others have been critical of the view that human rights are inherently a
Western construct.352 Sen points to the fact that expressions of human rights form
part of Asian, and particularly Indian, history and cultural norms.353 Likewise, China
has been developing its own collective conception of human rights.354 Other scholars
have examined understandings of human dignity in African culture and explored how
these conceptions could inform African conceptions of human rights.355 This area of

348
For more information on human rights and its Western, liberal roots, see, John Charvet and Elisa
Kaczynska-Nay, The Liberal Project and Human Rights: The Theory and Practice of a New World
Order (Cambridge University Press, 2008) prt 2. Henry J Steiner, Philip Alston and Ryan Goodman,
International Human Rights in Context: Law, Politics, Morals: Text and Materials (Oxford University
Press, 2008) 141. Sen, and others, have cast doubt on the ‘Western’ influence on human rights. See,
e.g., Sen, above n 73 ch 10.
349
See Balakrishnan Rajagopal, International Law from Below: Development, Social Movements and
Third World Resistance (Cambridge University Press, 2003) 171 who observed that ‘Human-rights
discourse has generally treated the Third World as object, as domain or terrain of the deployment of
universal imperatives. Indeed, the very term ‘human rights violation’ evokes images of Third World
violence- dictators, ethnic violence, and female genital mutilations — whereas First World violence is
commonly referred to as ‘civil rights’ violations'.
350
Carmen G Gonzalez, ‘Environmental Justice, Human Rights, and the Global South’ (2015) 13
Santa Clara Journal of International Law 151, 174.
351
Guyora Binder, ‘Cultural Relativism and Cultural Imperialism in Human Rights Law’ (1999) 5
Buffalo Human Rights Law Review 211, 211.
352
See, eg, Nussbaum, above n 74, 102–106.
353
See, eg, Amartya Sen, ‘Human Rights and Asian Values’ (16th Morgenthau Memorial Lecture on
Ethics & Foreign Policy, Carneigie Council on Ethics and International Affairs, 1997).
354
Na Jiang, China and International Human Rights: Harsh Punishments in the Context of the
International Covenant on Civil and Political Rights (Springer Science & Business Media, 2013) 38.
355
See, Josiah AM Cobbah, ‘African Values and the Human Rights Debate: An African Perspective’
(1987) 9 Human Rights Quarterly 309.
study illustrates that human rights law has the potential to develop, and perhaps
already is developing, in ways that better reflects non-Western cultures. Such
developments in human rights law may improve its ability to challenge power
imbalances between developed and developing countries.356

There are a number of gaps or limitations in human rights law in terms of who
owes duties and over what activities.357 Given their significant role and influence on
food and agriculture, it is particularly relevant that TNCs and other business
enterprises do not owe any obligations under human rights law. One way to
overcome the governance gap that permits corporate-related human rights harms is
through the enactment of novel laws by home-states for TNCs. However, such
developments have largely been curtailed by a strong lack of political support.358

As discussed, the HRC has approved a framework proposed by Professor John

Ruggie the aims to address the governance gap.359 This framework is entitled the
‘protect, respect and remedy’ framework, such principles were later operationalised
into the Guiding Principles on Business and Human Rights.360 Under this framework,
TNCs must avoid causing or contributing to human rights breaches (respect); seek to
mitigate or prevent human rights breaches (protect); and have in place relevant
policies and due diligence and remedial processes (remedy).361 Ruggie explained that
these normative standards ‘mark the end of the beginning’ of public international
responses to business and human rights; therefore, more developments in this area
are anticipated.362

356
Gonzalez, ‘Environmental Justice, Human Rights, and the Global South’, above n 345, 194.
357
The fact that transnational corporations are not held accountable under international human rights
law may reflect the influence of developed countries on human rights law, as many transnational
corporations tend to be based in developed countries.
358
See, eg, Alice de Jonge, ‘Transnational Corporations and International Law: Bringing TNCs out of
the Accountability Vacuum’ (2011) 7 Critical Perspectives on International Business 66, 7–8 where
the author discussed the attempts made in the US, UK and Australia.
359
John Ruggie, Protect, Respect and Remedy: A Framework for Business and Human Rights, Report
of the Special Representative of the Secretary-General on the issue of human rights and transnational
corporations and other business enterprises, United Nations Human Rights Council, UNHRC Res
8/5, 8th sess, Agenda item 3, UN Doc A/HRC/8/5 (7 April 2008).
360
Human rights and transnational corporations and other business enterprises, UNHRC Res 17/4,
17th sess, Agenda item 3, UN DOC A/HRC/RES/17/4 (16 July 2011) (Guiding Principles on Business
and Human Rights).
361
Ibid principle 13.
362
Ruggie, above n 291, xxii.
 These critiques of human rights, while valid and significant, do not arguably
outweigh the benefits of employing human rights to conceptually enrich and evaluate
progress towards food security. These benefits include, as discussed, the instrumental
value added by human rights to food security goals, the addition of an end rationale
for achieving food security, the empowering role of human rights and rights
dicourses, and finally the inclusion of accountability mechanisms.

Alternatively, this thesis could have used food sovereignty to enrich food
security or as the key concept underpinning the analysis. In fact, food sovereignty
addresses some of the flaws of human rights such as the individualistic nature of
human rights and the exclusive emphasis on state obligations in human rights law.
Yet, the inter-links between food sovereignty and human rights mean that human
rights can conceptually encapsulate key aspects of food sovereignty (e.g. right to
food, dignity, participation). At the same time, human rights provide other
dimensions such as legal legitimacy, which is useful for a thesis examining
regulatory frameworks.

3.4 CONCEPTUALISING THE ENVIRONMENTAL DIMENSIONS OF A

RIGHTS-BASED APPROACH TO FOOD SECURITY

Although a RBA adds value to and clarifies the policy concept of food security,
it does not expressly address the lack of environmental considerations in the concept
of food security. Similar to the ways in which the objective of food security can
inform how agriculture is conducted, sustainable development is the leading
environmental policy concept that describes how environmental services and natural
resources should be treated.363 Conceptually, the link between food security, human
rights and sustainable development has not been explained in the literature or clearly
established in relevant international policy documents. Given that agriculture
depends on environmental services and natural resources, clarifying the various ways
in which sustainable development informs a RBA to FS is important.

363
See, eg, Alan E Boyle and David Freestone, International Law and Sustainable Development: Past
Achievements and Future Challenges (Oxford University Press, 1999); John C Dernbach and Joel A
Mintz, ‘Environmental Laws and Sustainability: An Introduction’ (2011) 3 Sustainability 531; Note
Sharachchandra M Lélé, ‘Sustainable Development: A Critical Review’ (1991) 19 World
Development 607.
 Sustainable development integrates social, economic and ecological
dimensions.364 The most commonly cited definition comes from the Brundtland
Report, which defined sustainable development as ‘[d]evelopment that meets the
needs of the present without compromising the ability of future generations to meet
their own needs’.365 This report argued that sustainable development should be
applied to food insecurity because of the environmental impacts of agriculture
combined with the need to sustain the potential for future food security.366

Accordingly, the Brundtland Report explains that applying the concept of

sustainable development to food security requires ‘[s]ystematic attention to the
renewal of natural resources…[and] a holistic approach focused on ecosystems at
national, regional and global levels’.367 Significantly then, the most widely cited
conception of sustainable development when applied to food security supports
ecological methods of agriculture.

Sustainable development is closely connected to the international

environmental law principles of sustainable use and intra- and intergenerational
equity.368 Sustainable use is reflected in principle 8 of the Rio Declaration where it
states ‘To achieve sustainable development and a higher quality of life for all people,
States should reduce and eliminate unsustainable patterns of production and
consumption and promote appropriate demographic policies’.369 Agroecological
farming methods discussed in Chapter 2 encapsulates sustainable patterns of food
production. Meanwhile, intra- and intergenerational equity requires that development
be carried out to ‘equitably meet developmental and environmental needs of present

364
Agenda 21: Programme of Action for Sustainable Development, UN GAOR, 46th Sess., Agenda
Item 21, UN Doc A/Conf.151/26 (14 June 1992) (Agenda 21) [1.1], [3.4]. See also Douglas Edgar
Fisher, Australian Environmental Law (Lawbook Company, 2010).
365
See Our common future, ‘Brundtland Report or Report of the World Commission on Environment
and Development’ (Development and International Co-operation: Environment August 2, 1987,
World Commission on Environment and Development, 1987).
366
Ibid ch 5 ‘Food Security: Sustaining the Potential’.
367
Ibid [106].
368
Rayfuse explained, ‘Without sustainable use, there can be no sustainable development’. See,
Rosemary Rayfuse, ‘The Challenge of Sustainable High Seas Fishers’ in Nico J Schrijver and Friedl
Weiss (eds), International Law And Sustainable Development: Principles And Practice (Martinus
Nijhoff Publishers, 2004) 467, 469.
369
1992 Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (vol. I) / 31
ILM 874 (12 August 1992).
and future generations’.370 Intra-generational equity refers to equity among people
currently alive. Intergenerational equity is the idea that each generation holds the
earth and its resources as a steward for the next generation.371

Although the connections between the environment and agriculture are clear in
practice, the related concepts of sustainable development, human rights and food
security have a complex and ambiguous relationship. This thesis has identified three
main ways in which to conceptualise the sustainability dimensions of a RBA to FS.
These are:

1. A RBA to FS and the sustainable use of natural resources are mutually

reinforcing;

2. A RBA incorporates intergenerational rights; and

3. Food security is a type of sustainable development issue.

3.4.1 Mutually Reinforcing

John Knox, the UN’s Independent Expert on Human Rights and the
Environment, sees the sustainable use and protection of the environment and the
realisation of human rights as mutually reinforcing. He explained that:

Human rights are grounded in respect for fundamental human attributes such
as dignity, equality and liberty. The realization of these attributes depends on
an environment that allows them to flourish. At the same time, effective
environmental protection often depends on the exercise of human rights that

370
World Commission Environment and Development, Our Common Future, Annexe 1: Summary of
Proposed Legal Principles for Environment Protection and Sustainable Development Adopted by the
WCED Experts Group on Environmental Law, Transmitted to the General Assembly as an Annex to
document A/42/427- Development and International Co-operation: Environment (4 August 1987)
(Brundtland Report) p. 286.
371
The concept of intergenerational equity can be seen as a planetary trust in which the present
generation has a fiduciary duty to conserve the earth for future generations. See, Edith Brown Weiss,
‘The Planetary Trust: Conservation and Intergenerational Equity’ (1984) 11 Ecology Law Quarterly
495. Weiss explains, ‘This planetary trust obligates each generation to preserve the diversity of the
resource base and to pass the planet to future generations in no worse condition than it receives it’ at
499.
 are vital to informed, transparent and responsive policymaking. Human
rights and environmental protection are inherently interdependent.372

From Knox’s perspective then, the quality of the environment is central to the
realisation of human rights and human rights claims can be used to protect the
environment.

Knox’s analysis and the growing body of work examining the linkages
between human rights and the environment,373 can help us to understand the nexus
between a RBA to FS and the sustainable use of the environment. Environmental
conditions impact food security across its various limbs in a number of ways. For
instance:

 Food availability is affected by the quantity and quality of natural

resources, which determine the amount of food produced;

 Food access is affected by the price of food, which will increase where
environmental issues decrease supply;

 Food utilisation is affected by the quality of the resources used in food

production, as pollution or contamination can reduce the safety of food
produced.

At the same time, environmental harms that negatively impact upon food
security interfere with the progressive realisation of economic, social and cultural
rights, including the right to food and health. Furthermore, human rights principles
related to participation and transparent decision-making can be used to protect and
rehabilitate those resources required for agriculture.374

372
John Knox, Report of the Independent Expert on the issue of human rights obligations relating to
the enjoyment of a safe, clean, healthy and sustainable environment, UN Doc A/HRC/22/43, 22nd
sess, Agenda item 3 (24 December 2012) [10].
373
Bridget Lewis, ‘Human Rights and Environmental Wrongs : Achieving Environmental Justice
through Human Rights Law’ (2012) 1 International Journal for Crime and Justice 65; Shelton,
‘Human Rights, Environmental Rights, and the Right to Environment’, above n 252; Richard P
Hiskes, The Human Right to a Green Future: Environmental Rights and Intergenerational Justice
(Cambridge University Press, 2009).
374
This thesis uses a broad understanding of the environment that encompasses the components of
naturally occurring eco-systems. This understanding of the environment is compatible with the
definitions of the environment in various international instruments. For instance, the general principles
of the World Charter for Nature, GA Res 37/7, UN GAOR 37th sess, (28 October 1982) contained in
 A range of international instruments add legal and political legitimacy to the
idea that sustainable use of natural resources, human rights and food security are in a
mutually reinforcing relationship. Principle 1 of the Stockholm Declaration affirmed
that humans have a ‘[f]undamental right to freedom, equality and adequate
conditions of life, in an environment of quality that permits a life of dignity and well-
being’.375 After 20 years, this connection was reaffirmed in the Rio Declaration,
which provides that humans are ‘[a]t the centre of concerns for sustainable
development. They are entitled to a healthy and productive life in harmony with
nature’.376

At the same time as the Rio Declaration was adopted in 1992, 178
governments voted to adopt Agenda 21, which is an action plan for sustainable
development to be used by stakeholders (states, businesses, NGOs, communities) at
local, national and international levels. Chapter 14 of Agenda 21 is entitled
‘Promoting Sustainable Agriculture and Rural Development’.377 Essentially, this
chapter promotes the integration of sustainable development considerations (social,
environmental and economic) into agricultural policy. In order to make this point,
Agenda 21 acknowledges the connection between food security and the sustainable
use of natural resources used in agriculture.378 The instrument states that:

The major thrust of food security in this case is to bring about a significant
increase in agricultural production in a sustainable way and to achieve a
substantial improvement in people's entitlement to adequate food and
culturally appropriate food supplies.’ 379

More recently, the recognition of the relationship between sustainable

development, and human rights has been made throughout human rights
instruments,380 and the Millennium Development Goals.381 Overall then,

the annexure refers to the environment as encompassing natural processes, ecosystems and organisms,
all areas of Earth including land, the atmosphere and sea, and all life forms wild or domesticated.
375
Stockholm Declaration, 21st plen mtg, ch 11, A/Conf.48/14/Rev. 1(1973) (16 June 1972).
376
1992 Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (vol. I) / 31
ILM 874 (12 August 1992) principle 1 (Rio Declaration).
377
Agenda 21: Programme of Action for Sustainable Development, U.N. GAOR, 46th Sess., Agenda
Item 21, UN Doc A/Conf.151/26 (14 June 1992) (Agenda 21)
378
Agenda 21 14.4(a).
379
Agenda 21 14.6.
380
In particular, see, Human Rights Council, Human Rights and the Environment, 16th sess, Agenda
item 3, UN Doc A/HRC/RES/16/11 (12 April 2011); Human Rights Council, Human Rights and the
Environment, 25th sess, Agenda item 3, UN Doc A/HRC/25/L.31 (24 March 2014). For a complete
international environmental policy and interpretations of human rights law reflect an
increasing awareness of the links between environmental quality and human rights.

3.4.2 Intergenerational Application

Whether a RBA involves intergenerational considerations is highly
contested.382 A common argument, termed the ‘non-identity problem’, is that human
rights can only be owed to a person once they actually exist, because otherwise there
are no specific right-holders or duty-bearers.383 Bell explained that ‘If future persons
do not have rights now, current persons cannot have correlative duties to respect
those (non-existent) rights’.384 In addition, there is no legally binding international
instrument that commits states to protecting future generations. Nevertheless, the
‘rights of future generations’ is a concept that has widespread moral and legal
legitimacy and is therefore contained in a wide array of international treaties, albeit
generally in the preamble.385

overview, see, Human Rights and Environment (2016) Office of the High Commissioner for Human
Rights
<http://www.ohchr.org/EN/Issues/Environment/HREnvironment/Pages/HRandEnvironmentIndex.asp
x>.
381
United Nations Millennium Declaration, GA Res 55/7, UN GAOR, 55th sess, 8th plen mtg, Agenda
Item 60(b), UN Doc A/Res/55/2 (8 September 2000) [19], [22]-[23]. The reason these goals reflect a
growing integration between human rights and sustainable development objectives is because they
encompass both environmental and human rights concerns. While not mentioned in text, the
Johannesburg Declaration on Sustainable Development, UN Doc, A/CONF.199/20 (4 September
2002), which arose from the World Summit on Sustainable Development in 2002, affirms in art 2 that
states are committed to ‘[b]uilding a humane, equitable and caring global society, cognizant of the
need for human dignity for all’.
382
Intergenerational equity is, as discussed in Chapter 1, a principle of international environmental
law. However, there is a large body of scholarly and institutional works examining human rights in the
context of future generations. For instance, the United Nations Educational, Scientific and Cultural
Organization, Declaration on the Responsibilities of the Present Generations Towards Future
Generations, 27th plenary meeting (adopted 12 November 1997) states that ‘present generations have
the responsibility of ensuring the needs and interests of present and future generations are fully
safeguarded’ (art 1). Aspects to be safeguarded for future generations include their ability to enjoy full
freedom of choice regarding their governance arrangements as well as the continuation of humankind.
Article 4 provides that ‘The present generations have a responsibility to bequeath to future generations
an Earth which will not one day be irreversibly damaged by human activity’.
383
Westra describes the argument as follows ‘future generations don’t exist now and, even if they will
come to be, we cannot be expected to modify law and morality on their behalf, as we don’t know
exactly who they are, and what their choices will be’. See, Laura Westra, Environmental Justice and
the Rights of Unborn and Future Generations: Law, Environmental Harm and the Right to Health
(Routledge, 2008) xvi.
384
Derek Bell, ‘Does Anthropogenic Climate Change Violate Human Rights?’ (2011) 14 Critical
Review of International Social and Political Philosophy 99, 14.
385
John Knox, Report of the Independent Expert on the issue of human rights obligations relating to
the enjoyment of a safe, clean, healthy and sustainable environment, 22nd sess, Agenda item 3, UN
Doc A/HRC/22/43 (24 December 2012) [12]-[17].
 Regardless of whether there is an intergenerational component to human rights
obligations, protecting the rights of those presently alive tends to incidentally protect
the rights of future generations.386 In other words, regulations that align with a RBA
will often overlap with the regulatory responses and actions that would be needed to
protect the rights of future generations. A report of the UN Secretary General to the
General Assembly, entitled Intergenerational Solidarity and the Needs of Future
Generations, examined how the needs of future generations can be incorporated into
international and domestic institutions and policies.387 Essentially, the report
concluded that regulations should be created in such a way as to avoid irreversible
impacts on ecosystems that provide the basis for human life.388

3.4.3 Food security as a sustainable development issue

Sustainable development implies security and stability because it suggests that
access and use of natural resources should be sustained in the long-term. Likewise,
and as explained in Chapter 1, food security requires stability in the availability,
accessibility and adequacy of food. Consequently, sustainable development could be
considered under the stability limb of food security. Put differently, the natural
resources used in food production should be conserved and maintained in order to
ensure that food remains available, accessible and adequate.

Others argue that food security is a sustainable development issue that reflects
the need for development across social (eg nutrition), environmental (eg agricultural
methods) and economic (income, trade, markets) dimensions.389 Subsequently, food
security can be seen as both a pre-condition for, and an outcome of, sustainable
development. International institutional support for the latter conceptualisation is
perhaps more established.390

386
Bell, above n 379, 14.
387
Intergenerational solidarity and the needs of future generations, 68th sess, Item 19(a) provisional
agenda, UN Doc A/68/322 (15 August 2013) [18].
388
Ibid [26].
389
Elliot M Berry et al, ‘Food Security and Sustainability: Can One Exist without the Other?’ [2015]
Public Health Nutrition 1, 4; Food Security (2015) World Health Organization
<http://www.who.int/trade/glossary/story028/en/>.
390
See, eg, the use of the word ‘sustainable global food security’ across international policy
documents. In particular, the Five Rome Principles for Sustainable Global Food Security in the
Declaration of the World Summit on Food Security, WSFS 2009/2 (November 2009).
3.5 CRITERIA FOR A RIGHTS-BASED APPROACH TO FOOD
SECURITY

3.5.1 Summary
Human rights law supports the premise that international agricultural laws
should contribute to food security. This is because food security is generally a pre-
condition for the realisation of human rights and is intimately connected to the right
to food in particular. Likewise, human rights provide standards and guidelines that
inform how food security should be progressed. A RBA identifies inequalities,
vulnerabilities and obligations. Furthermore, a RBA challenges unjust distribution of
resources and power that causes food insecurity. It draws attention to the structural
causes of food insecurity in a way that food security, as a technical goal, cannot. For
these reasons, a RBA has a significant role to play in evaluating whether the
regulations that intersect with agriculture are contributing to or hindering food
security.

3.5.2 Reconciling Dominant and Alternative Frames

Based on the analysis from Chapter 2 and within this chapter, a RBA to FS is
generally far more compatible with the alternative frame. Agroecology, the science
of sustainable agriculture, is fundamental to the sustainability and the
intergenerational dimensions of a RBA to FS. In particular agroecology provides the
methods required for the ‘sustainable use’ of resources used in agriculture, which
ensures food production remains possible for future generations. Further, and as
discussed in Chapter 2, agroecology tends to advance the interests of marginalised
groups and mitigate or prevent the harms that are caused by industrial agriculture.

A RBA to FS supports a transition to agroecology that will differ depending on

the context. International regulatory instruments need to enable small-scale farmers
in developing countries to increase their productivity using agroecological instead of
industrial methods. For large industrial farms, agroecological practices should be
incentivised to address the adverse harm of industrial methods and to improve the
sustainability and resilience of these farms.

Ultimately, the role of international regulatory actors is to enable this transition

to happen. It will be at the domestic and farm level that regulatory interventions will
best be able to support the transition while protecting food security. Regardless of the
context, transitions to more agroecological farming models need to empower farmers
by promoting farmer-led innovation, sharing and learning.

Although a RBA to FS supports a transition to more agroecological methods, it

differs somewhat from the food sovereignty movement by exhibiting a more
gradated understanding of how to address food and agricultural issue. A RBA to FS
does not preclude industrial agricultural methods, globalised supply chains or trade
liberalisation, which are typically criticised by food sovereignty advocates. Rather, a
RBA to FS guides how such practices should be regulated and carried out while
enabling alternatives to ‘business-as-usual’ in order to improve food security in a
manner more consistent with human rights.

3.5.3 Broad Components of a Rights-Based Approach to Food Security and

Proposed Criteria for Evaluating Agricultural Law
The thesis proposes that the overarching and ultimate components of a RBA to
FS encompass food security (accessibility, availability, adequacy and stability),
human rights (particularly the right to food) and human rights principles and values
(eg participation, accountability, non-discrimination, transparency, human dignity,
empowerment and the rule of law).

Although it remains underexplored in the literature to date, it is evident that the

sustainable development and use of the natural resources for agriculture is
intertwined with the components of a RBA to FS. This is because of the mutually
reinforcing relationship between sustainable development, human rights and food
security. Likewise, the ability for future generations to be food secure forms part of a
RBA. Further, there are links between the concept of food security, including it’s
stability dimension, and the long-term considerations embedded in sustainable
development. In the context of agriculture, sustainability is best promoted through
agroecological farming practices, as described in Chapter 2.
 Ultimate components
of a rights‐based
approach to food
security

Criteria for a
rights‐based
approach to
food security
in the context
of agricultural
regulation

Figure 3.1 Relationship between ultimate components of a RBA to FS and the criteria
established for evaluating whether an instrument is consistent with a RBA to FS in the context
of agriculture

Drawing together these broad components, this thesis suggests that a RBA to
FS interprets the dimensions of food security as follows:

 Food availability: Food is produced in enough quantities in a sustainable

manner to meet the dietary requirements of current and future generations.
The production of food should not unjustifiably interfere with the
realisation of other human rights or the food security status of future
generations. Access rights to the natural resources required for agricultural
production must be protected and facilitated for those groups that rely on
agriculture for food and income to purchase food. Further, local food
systems and market access must be improved in a sustainable manner in
poor and agriculture-dependent societies. Public and private regulatory
instruments that intersect with agriculture must be formulated and
implemented in a way that is consistent with human rights principles. Such
regulatory instruments must also seek to enable the realisation of human
rights and food security. Additionally, agricultural policies should reduce
the over-production of food and food waste where these issues impact on
 food security. Those who produce food, including farmers and farm
workers, should be able to participate in the formulation of agricultural
regulations.

 Food accessibility: all individuals have the right to access adequate food
through physical and economic means. Marginalised and/or poor groups
are less likely to have access to food and so they must form the focus of
food accessibility measures. Such groups must be involved in decisions
regarding food access that will affect them and must be able to access
social support systems when they cannot fulfil their own food needs.
States and international institutions should examine how their policies,
programs and legal instruments create or aggravate food access barriers for
some.

 Food utilisation: food must be safe, culturally appropriate, free from

unsafe chemicals or other substances and must be able to satisfy the
nutritional needs of individuals. In shaping regulations that intersect with
food utilisation, care must be taken to ensure human rights principles are
followed, particularly transparency, empowerment and participation. As
part of this approach, stakeholders should be regulated in ways that protect
against misleading claims regarding a food product’s ingredients,
nutritional attributes or safety.

 Stability: food availability, accessibility and utilisation should not be

threatened by external drivers such as changes in international prices or
production practices. Measures must be in place to protect against and
mitigate shocks to food stability at national, regional and global levels.
Countries must, individually and through international cooperation,
monitor food security and stockpile food for legitimate food security
purposes.

3.5.3.1 Proposed Criteria

In accordance with the policy-oriented method to legal analysis, this thesis has
developed criteria for evaluating the extent to which the international regulatory
framework for agriculture aligns with a RBA to FS and for assessing alternatives.
This criteria is based on the broad components of a RBA to FS and the agricultural
context. However, this criteria could be adapted to evaluating agricultural laws at
other levels of governance.

There is a slight deviation between the criteria developed and a RBA. A RBA
generally requires that a regulatory instrument have as its ultimate objective the
achievement of human rights and the explicit incorporation of human rights
principles.391 Because the regulatory framework for agriculture is made up of
instruments from various regimes, the criteria developed considers it preferable for
an instrument to explicitly incorporate human rights; but holds that a RBA to FS is
evidenced where an instrument’s objectives, design and implementation are
consistent with enabling food security in line with human rights norms and
principles.

To be consistent with a RBA to FS, international regulatory instruments that

intersect with agriculture must satisfy the following criteria:

1. Objectives and provisions that are directly compatible with the realisation
of food security and connected human rights in the context of agriculture.
This includes but is not limited to:

- Enabling provisions and instruments including regulatory tools that

facilitate the fair and equal distribution of agricultural resources and
food;
- Protection against interferences with the ability of states to regulate
for and meet their human rights duties;
- Protection against interferences with the realisation of human rights
stemming from the activities of non-state actors;
- Mechanisms to strengthen public and private investment in agriculture
that is compatible with the progressive realisation of human rights and
food security.

2. Special treatment, support and protections for: (a) currently food insecure
groups and countries, and (b) groups and countries most vulnerable to food
insecurity. These include, but are not limited to:

391
This was discussed in part 2 section I of this chapter.
 - Low-income, agricultural-based populations;
- Small-scale farmers (defined in Chapter 1) particularly those who are
women;
- Poor urban residents; and
- States most at risk of being food insecure, which includes least-
developed states, small island developing states, net-food-importing
states and landlocked states.392

3. Procedures in the design, negotiation and implementation of the

instruments that:

- Reflect human rights principles including participation, accountability,

non-discrimination/equality and transparency;
- Ensure greater coordination and coherence across relevant regulatory
instruments in a manner consistent with the international rule of law;
- Seek to build an enabling environment by aligning regulatory
instruments, financial investments and institutional arrangements.

4. Mechanisms, instruments and provisions that promote the sustainable use

of natural resources, biodiversity and the maintenance of ecosystem
services relied upon for agriculture including in particular:

- Regulatory interventions that effectively reduce the environmental and

human health harms caused by industrial agriculture in order to
protect human rights and long-term food security;
- Enabling provisions and instruments to facilitate the uptake of
agroecological farming methods.

This criteria will be used to analyse how the international regulatory

framework contributes to global food security and the ways in which the framework
should be reformed in order to achieve better outcomes for food security. Throughout
this thesis, references to ‘the criteria’ or criterion 1, 2, 3 or 4 should be understood as
references to the above criteria.

392
These countries have particularly high levels of food insecurity and low levels of agricultural
development. See, ‘Agriculture and Food Security Statistics of the Least Developed Countries, Land
Locked Developing Countries and Small Island Developing States’ (Food and Agricultural
Organization of the United Nations, Special Issue, 2014) <http://www.fao.org/3/a-i3943e.pdf>.
 Land

4.1 OVERVIEW

This chapter focuses on the international regulation of agricultural land as the first and
essential component to agricultural systems and food security. In particular, it examines the
international regulatory instruments that influence the access and use of land. Respecting,
protecting and facilitating people’s access and use of land and its connected resources for
farming is a critical part of a RBA to FS. As prominent US diplomat, Madeline Albright,
observed ‘Food is about agriculture; agriculture is about land and water; and land and water
are about property- who owns it, who has access to it, and who cultivates it’.393 Ensuring that
people have stable access to agricultural land provides food, acts as an income source (to buy
food), and if a person’s land rights are secure, promotes sustainable agricultural practices. As
a result, measures that facilitate equal and secure access to land resources are critical to a
RBA to FS.

The first section of this chapter outlines functions of and issues within land tenure
systems in the context of food security and identifies the associated international regulatory
and institutional frameworks. The second section assesses the international framework for
land tenure security, which is based in human rights law, and considers the implementation
difficulties this regime faces. Finally, this chapter examines the emerging international
regulatory responses to land tenure insecurity in the context of large-scale agricultural land
investments involving foreign actors.

4.2 LAND TENURE AND A RIGHTS-BASED APPROACH TO FOOD SECURITY

This part provides an overview of the connections between land tenure systems and
food security. It outlines and critiques statutory and customary land tenure systems and
examines their role in a RBA to FS. Ultimately, this section emphasises the importance of
incorporating human rights procedural principles into the design and implementation of land
tenure systems including the rule of law, transparency, participation and equality in
particular.

393
Global Food Security Is a Moral Imperative (29 July 2015) Our World: Brought to you by United Nations University
<http://ourworld.unu.edu/en/global-food-security-is-a-moral-imperative>.
4.2.1 Defining Land Tenure Security
Land tenure is the governance arrangement that determine rights over land, regulates
the kinds of interests that can be held in land (eg ownership, lease) and the property rights
that attach to these interests (eg right to use).394 Often, land tenure is equated with property
rights, but land tenure is actually the framework through which people gain property rights.
Put differently, land tenure systems identify the interests that can be held in a land lot and
allows for multiple interests to co-exist over a parcel of land.395 Commonly, land tenure
arrangements are contained in either formalised tenure systems, customary and religious legal
systems, or in a hybrid system with both formal and customary attributes. Meanwhile,
property rights attach to the interest that an entity holds in a land lot. Property rights in
essence determine ‘Who can do what on a plot of land’,396 and may include the right to use
and enjoy, occupy, buy and sell, inherit, lease, sub-lease, improve or cultivate for production
the land.397

4.2.2 Links between Land Tenure and Food Security

A person or household has land tenure security if they cannot be involuntarily removed
from their land unless extraordinary circumstances make it in the public interest for their land
to be appropriated.398 In such rare situations, certain procedures must be in place to ensure
that the appropriation is consistent with the rule of law (eg due process, right of appeal, equal
application).

394
Daniel Maxwell and Keith Wiebe, ‘Land Tenure and Food Security: Exploring Dynamic Linkages’ (1999) 30
Development and Change 825, 825.
395
For an explanation, see, eg, Slater J in Shaw v. Proffitt 57 Or. 192, 201(1910) ‘The word ‘right’ denotes,
among other things, ‘property’, ‘interest’, ‘power’, ‘prerogative’, ‘immunity’ and ‘privilege’ and in law is most
frequently applied to property in a restricted sense.
396
Geoffrey Payne and Alain Durand-Lasserve, ‘Holding On: Security of Tenure Types, Policies, Practices and
Challenges’ (Research Paper prepared for the Special Rapporeteur on adequate housing as a component of the
right to an adequate standard of living and on the right to no-discrimination in this context, Raquel Rolnik, to
inform her Study on Security of Tenure, 2012) 8
<http://www.ohchr.org/Documents/Issues/Housing/SecurityTenure/Payne-Durand-Lasserve-BackgroundPaper-
JAN2013.pdf>.
397
Geoffrey Payne, ‘Land Tenure and Property Rights: An Introduction’ (2004) 28 Habitat International 167.
398
‘Urban Land’ (9, UN-Habitat, 31 May 2015) 4 <http://unhabitat.org/wp-content/uploads/2015/04/Habitat-III-
Issue-Paper-9_Urban-Land-2.0.pdf>.
 Insecure tenure rights undermine food security by:

 Leaving subsistence farmers and whole communities vulnerable to

dispossession;399

 Fostering legal and sometimes violent conflicts between various land users;400

 Reducing incentives to improve the land leading to unsustainable, short-term land

use decisions;401 and

 Decreasing the potential for improved infrastructure and service provisions.402

Correspondingly, a large body of empirical work correlates secure land tenure rights
with food security,403 sustainable development,404 the adoption of ecological, sustainable
farming practices,405 and the establishment of the rule of law.406

399
See, eg, Bill Vorley, Lorenzo Cotula and Man-Kwun Chan, ‘Tipping the Balance’ (Research Report,
International Institute for Environment and Development and Oxfam Internaitonal, December 2012) 8.
400
‘Land and Conflict’ (Toolkit and Guidance for Preventing and Managing Land and Natural Resources
Conflict, United Nations Interagency Team for Preventive Action, 2012)
<http://www.un.org/en/events/environmentconflictday/pdf/GN_Land_Consultation.pdf>.
401
See, eg, Edward B Barbier, ‘The Economic Determinants of Land Degradation in Developing Countries’
(1997) 352 Philosophical Transactions of the Royal Society of London. Series B: Biological Sciences 891. See,
eg, Hui Xu et al, ‘Chinese Land Policies and Farmers’ Adoption of Organic Fertilizer for Saline Soils’ (2014) 38
Land Use Policy 541 where it found that the adoption of organic fertiliser by individual households in China is
constrained by instability in land tenure.
402
Findings differ depending on the region in regards to whether increased tenure security increases investment
in infrastructure. Generally, increased tenure security has a positive impact on infrastructure investment but it is
not the only factor for increasing the flow of capital and infrastructure. See, eg, J T Bugri, ‘The Dynamics of
Tenure Security, Agricultural Production and Environmental Degradation in Africa: Evidence from
Stakeholders in North-East Ghana’ (2008) 25 Land Use Policy 271; Meinzen-Dick Ruth et al (eds), ‘Tree and
Cropland Management in Malawi’ in Innovation in natural resource management: The role of property rights
and collective action in developing countries (Intl Food Policy Res Inst, 2002) 144.
403
Klaus Deininger, ‘Land Policies for Growth and Poverty Reduction: A World Bank Policy Research Report’
(Publication 26384, The World Bank, 2003) 1–2.
404
See, eg, David A Leblang, ‘Property Rights, Democracy and Economic Growth’ (1996) 49 Political
Research Quarterly 5; Gershon Feder and David Feeny, ‘Land Tenure and Property Rights: Theory and
Implications for Development Policy’ (1991) 5 The World Bank Economic Review 135; Tarique Niazi, ‘Land
Tenure, Land Use, and Land Degradation: A Case for Sustainable Development in Pakistan’ (2003) 12 The
Journal of Environment & Development 275; Desmond McNeill, Ingrid Nesheim and Floor Brouwer, Land Use
Policies for Sustainable Development : Exploring Integrated Assessment Approaches (Edward Elgar Publishing,
2012); Robert Mendelsohn, ‘Property Rights and Tropical Deforestation’ (1994) 46 Oxford Economic Papers
750; Keith D Wiebe and Ruth Meinzen-Dick, ‘Property Rights as Policy Tools for Sustainable Development’
(1998) 15 Land Use Policy 203; ‘Land Tenure Systems and Their Impacts on Food Security and Sustainable
Development in Africa’ (ECA/SDD/05/09, United Nations Economic Commission for Africa, 2004) 64.
405
‘World Development Report 2005: A Better Investment Climate for Everyone’ (The World Bank, 2004) 288,
81 where it provides case study examples of how secure property rights encourages environmental stewardship.
406
Kenneth W Dam, The Law-Growth Nexus: The Rule of Law and Economic Development (Brookings Inst
Press, 2006) 139. However, it is important to note that secure land tenure is one factor, combined with poverty
and capacity, that incentivise sustainable farming practices.
 It is commonly implied that the relationship between land tenure and food security is
linear; households gain land tenure security and this leads to improvements in their food
security status. Yet, the relationship between food and land tenure security is more interactive
and cyclical than linear. For instance, individuals and households that are food secure have
the capacity (time, energy, resources) to invest further in their land (eg installation of water
tanks and fences), thus increasing their security of tenure.407 At the same time, these
investments may improve their productivity and access to markets, thus improving their food
security status. In contrast, food insecure households may be forced to sell their assets to have
short-term economic access to food. Subsequently, Maxwell and Weibe pointed out that:

…food-secure households are in a position to acquire those assets in exchange for the
cash or food that poor households need…even in average or good years, wealthier
households may gain relative to poorer households since their initial position of food
security allowed them to allocate resources in riskier, more productive ways.

Hence, food security and land tenure must be viewed as intimately related objectives,
not as aspects of a linear process whereby the attainment of land tenure security necessary
ensures the attainment of food security. For that reason, a RBA to FS favours those
approaches that simultaneously progress land tenure and food security. To put it differently,
avenues outside of land tenure need to be strengthened (eg social security systems, access to
justice, political rights) in order for land tenure security to improve food security and vice
versa.

4.2.3 A Rights-Based Approach to Food Security in the Context of Land Tenure

A RBA to FS holds that the realisation of other basic needs (eg shelter, work) should
not be threatened or compromised by the need to purchase or grow food.408 Adding to this
interpretation, De Schutter explored access to land and secure tenure in light of the right to
food. In this context, De Schutter explained the duties of the state as follows:

 States must avoid any measures that may prevent individuals from accessing
productive resources that they otherwise use to produce food for themselves
(obligation to respect);

407
See, eg, Miles Kenney-Lazar, ‘Linking Food and Land Tenure Security in the Lao PDR’ (Land Issues
Working Group, 2015) 8–9
<https://mileskenneylazardotcom.files.wordpress.com/2015/11/liwg_landtenurefoodsecurityreport_draft4.pdf>.
408
General Comment No. 12 para 13.
  State must protect this access from interference by private third parties (obligation
to protect); and

 States must improve and strengthen people’s access to and use of productive
resources and their means to a livelihood (the obligation to fulfil).409

In accordance with criterion 1 of a RBA to FS, the role of international actors and
instruments is to refrain from interfering with the ability of states to meet these duties and
instead to create an enabling environment at the international level. Consequently, the rules
created by international institutions must not exacerbate land tenure insecurity or food
insecurity, and should enable secure access to land for groups dependent on agriculture for
food security.410 Specifically, relevant international regulatory instruments should enable the
redistribution of land where possible to poor, landless people and the strengthening of the
tenure security of smallholders in accordance with the rule of law and other human rights
principles.411 Such an approach is reflective of criterion 2 and 3 of a RBA to FS, which
requires special protections and support for food insecure groups in accordance with human
rights principles.

4.2.4 Approaches to Secure Land Tenure

Land tenure systems have two broad groupings. The first is statutory land tenure
systems, which are created by written laws and encompass private and public tenure systems.
Private tenure is where rights are assigned to an individual, a group, or an entity with legal
personality.412 These tenure systems operate closely with the market, which determines, along
with state regulation, how the land is used, transferred and developed. Public tenure is where
rights are assigned to a state organ for public interest purposes.413

409
Olivier De Schutter, ‘Report of the Special Rapporteur on the right to food’, 65th sess, Item 69(b), UN Doc
A/65/281 (11 August 2010) 3.
410
Patrick Macklem, The Sovereignty of Human Rights (Oxford University Press, 2015) 59.
411
The speed through which land reforms were carried out in Zimbabwe and the lack of a rule of law in the
process led to human rights violations, even though the stated intent was to resdistribute land to the landless.
See, eg, Anne Hellum and Bill Derman, ‘Land Reform and Human Rights in Contemporary Zimbabwe:
Balancing Individual and Social Justice Through an Integrated Human Rights Framework’ (2004) 32 World
Development 1785.
412
There are different ways of categorising the main forms of tenure, but the most general and helpful for our
discussions comes from, Payne and Durand-Lasserve, above n 391.
413
‘Land Tenure and Rural Development’ (FAO Land Tenure Studies, Food and Agriculture Organization of the
United Nations, 2002) 8 <http://www.fao.org/docrep/005/y4307e/y4307e00.htm>.
 The second grouping is customary/religious land tenure systems. These tenure systems
are based on cultural or religious traditions of the community concerned. Dealings with the
land (eg cultivation on land and inheritance) are determined by traditional laws and
communal decisions and needs rather than through the market place.414

4.2.4.1 Relationship between statutory land tenure systems and food security
It is often argued that statutory tenure systems are the optimal approach for food
security. From this perspective, customary or religious land tenure systems should be
‘formalised’ by being converted to statutory land tenure systems with private property rights
and registration systems, including maps. A critical part of this approach is the creation of
individual land titles.

Hernando de Soto, a renowned economist whose research has been supported by the
World Bank among others,415 advocated for a single formal land tenure system in each
country and emphasised individualised land titling programmes.416 de Soto, and the
institutional support he has received, saw formalised land tenure arrangements as a means to
increase the wealth of food insecure groups, and thus enable better economic access to
food.417 This viewpoint asserts that state-governed individual titling, registration and property
rights would result in: (a) increased willingness to make medium to long-term investments,
eg in agroforestry; (b) better access to credit for agricultural investment as legal title to land
can be used as collateral; and (c) the transfer of land to more productive producers.418

414
Payne and Durand-Lasserve, above n 391, 33–39.
415
The World Bank has funded numerous land titling schemes as part of its emphasis on formal land tenure
systems. However, the World Bank does not completely support de Soto’s thesis, as the bank takes a more
nuanced position that notes various constraints on economic development. In other words, the World Bank does
not agree with de Soto’s hypothesis that poverty exists because land markets are underdeveloped. See, Robert M
Buckley and Jerry Kalarickal, Thirty Years of World Bank Shelter Lending: What Have We Learned? (World
Bank, 2006) 29–31.
416
This is an important part of his thesis, because de Soto recognised that developing and emerging states have
formal property systems in place but argued that poor citizens do not take part in this system (for reasons of eg
marginalisation from mainstream systems and the short-term benefits of tax evasion), and so governments must
codify informal property systems and combine them with formalised approaches (eg registration systems,
titling).
417
de Soto’s critical works on this are Hernando de Soto, The Other Path (Basic Books, Reprint edition, 2002);
Hernando de Soto, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else
(Basic Books, Reprint edition, 2003).
418
These potential, beneficial impacts are widely acknowledged, see eg, Hosaena Ghebru Hagos and Stein
Holden, ‘Links between Tenure Security and Food Security: Evidence from Ethiopia’ (ESSP Working Paper 59,
International Food Policy Research Institute, Ethopian Development Research Institute, October 2013) 47, 4.
 The World Bank and the IMF adopted an approach similar to de Soto’s in the 1980s
with their structural adjustment programs.419 At the time, these programs provided loans on
the basis that the country receiving the loan would, among other reforms, strengthen statutory
land tenure systems, including through the provision of individual titles.420 Empirical
evidence supports de Soto’s thesis through findings that land titling and registration has
increased agricultural investment and productivity in a range of countries such as Thailand,421
China,422 Nicaragua, Ecuador and Venezuela.423

A significant body of work has critiqued this emphasis on formalised, individual titling
as a way to reduce poverty and increase food security; subsequently, the role of international
institutions in facilitating the uptake of more formalised, individualised land tenure
arrangements has drawn widespread criticism.424 To begin, commentators draw attention to
the problems that are caused by rapidly incorporating informal or customary land
arrangements into formalised systems and markets. Wallace and Williamson explained that:

The Western democracies took hundreds of years to make the transition. Developing
countries are trying to encapsulate the experience into decades… A country has to be
relatively rich in economic and social capacities before it can develop formal land
markets.425

419
For an overview, see eg, Jean-Philippe Platteau, Land Reform and Structural Adjustment in Sub-Saharan
Africa: Controversies and Guidelines (Food & Agriculture Org., 1992).
420
Roger D Norton, Agricultural Issues in Structural Adjustment Programs: Report (Food & Agriculture
Organization of the United Nations, 1987) 10.
421
Gershon Feder et al, ‘Land Policies and Farm Productivity in Thailand’ (Vol 1, The World Bank, 31 July
1988) 183
<http://econ.worldbank.org/external/default/main?pagePK=64165259&theSitePK=469372&piPK=64165421&
menuPK=64166093&entityID=000178830_98101911364064> where it found that formal land ownership
security in Thailand had a substantial impact on farmers’ agricultural performance.
422
Guo Li, Scott Rozelle and Loren Brandt, ‘Tenure, Land Rights, and Farmer Investment Incentives in China’
(1998) 19 Agricultural Economics 63 where it was found that ‘The right to use land for long periods of time
encourages the use of land-saving investments’, yet showed that ‘the difference between collective and private
plots’ in terms of agricultural was small.
423
See, e.g., Deininger, above n 398, 47 for an overview of the empirical studies conducted for these countries.
424
The key critiques come from Espen Sjaastad and Ben Cousins, ‘Formalisation of Land Rights in the South:
An Overview’ (2009) 26 Land Use Policy 1; Stein Holden Tor A Benjaminsen, ‘Formalisation of Land Rights:
Some Empirical Evidence from Mali, Niger and South Africa’ (2009) 26 Land Use Policy 28; Franz Von
Benda-Beckmann, ‘Mysteries of Capital or Mystification of Legal Property?’ (2003) 41 European Journal of
Anthropology 187. See also, Franklin Obeng-Odoom, ‘The Mystery of Capital or the Mystification of Capital?’
(2013) 71 Review of Social Economy 427, 49 where the author argued that de Soto’s thesis ignored the political,
social and historical context leading to poverty. He explained, ‘Regarding capital only as stock for increasing
further wealth, rather than social and class relations, suggesting that the capital-accumulation process is powered
at the origin by capital, instead of labour, and perceiving property as a relationship between humans and landed
property, rather than principally between humans, lead to a highly asocial analysis of urban poverty.’
425
Jude Wallace and Ian Williamson (2006) ‘Building land markets’ 23(2) Land Use Policy 123, 128 and 150.
 As Wallace and Williamson pointed out, the formalisation of property rights has
aggravated inequality and poverty where governments lack the institutional capacity to
formalise property rights consistent with a RBA to FS.426 This is particularly so in countries
where the rule of law is weak and corruption is prevalent.

On a related point, a narrow focus on formalised land tenure arrangements in

international policy discourses distracts from the ultimate rights and capacities that need to be
developed. The broader causes of land tenure security cannot be addressed by bringing in
formal land tenure systems and land titles.427 These broader causes include barriers to access
to justice (eg access to courts) and a lack of resources (financial, educational, etc) that limit
the ability of marginalised groups to enforce or obtain land rights. Kingwell et al explained
that ‘Policy makers must resist the temptation to seek simplistic solutions to poverty of the
kind offered by de Soto. Tenure reform remains necessary and important, but is far from
sufficient’.428 A more integrated approach that works towards the realisation of a range of
rights, the improvement of various other markets and a more equal distribution of resources is
more compatible with addressing the multiple causes of food security than a rapid or system-
wide formalisation of land tenure.

Overall then, a RBA to FS does not support a universal, formalisation of property

rights. What matters from a RBA to FS perspective is the equity of the procedures and
arrangements that determine how land rights are attained and transferred (as reflected in
criterion 3).429 Consequently, states and international institutions need to ask what kinds of
land tenure systems and property rights would best protect and facilitate food security (eg
rights to farm on land or rights to full and private control), what groups need their rights
secured (eg food insecure groups that rely on agriculture for income and food) and what form

426
See, eg, Thembela Kepe and Brock Bersaglio, ‘Farmers at the Edge: Property Formalisation and Urban
Agriculture in Dar Es Salaam, Tanzania’ [2013] Urban Forum 402–403 in this article the authors examined the
land tenure security of Tanzanian urban farmers in the city Dar es Salaam. They concluded that ‘...the state is
unable to match expectations for formalisation due to inappropriate implementation mechanisms, as well as
existing power imbalances among stakeholders...the voices of urban farmers had little bearing on the actual land
reform program.’
427
Daniel Domeher and Raymond Abdulai, ‘Access to Credit in the Developing World: Does Land Registration
Matter?’ (2012) 33 Third World Quarterly 161.
428
Rosalie Kingwill et al, ‘Mysteries and Myths: De Soto, Property and Poverty in South Africa’ (124,
International Institute for Environment and Development, 2006) 2 <http://pubs.iied.org/pdfs/14517IIED.pdf>.
Sjaastad and Cousins, above n 39.
429
Geoffrey Payne, Alain Durand-Lasserve and Carole Rakodi, ‘Social and Economic Impacts of Land Titling
Programs in Urban and Periurban Areas: A Short Review of the Literature’ in Somik V Lall et al (eds), Urban
Land Markets (Springer Netherlands, 2009) 133, 156 <http://link.springer.com/chapter/10.1007/978-1-4020-
8862-9_6>.
these rights should take.430 This more customisable and comprehensive approach to tenure
security is in sync with the finding that land tenure security does not necessarily lead to food
security or the realisation of human rights.

4.2.4.2 Relationship between customary land tenure systems and food security
In numerous rural areas in developing countries, land tenure arrangements are based on
customary land rights.431 Customary held lands tend to be unregistered and were traditionally
unalienable. In Ghana, for example, 80 per cent of land is held under customary land tenure
arrangements.432 Supporters of reinvigorating customary land tenure systems argue that state-
registered, individualised property rights ignore traditional values and marginalise groups
rather than fostering self-determination.433 Customary land tenure systems can support
sustainable agricultural practices, consistent with criterion 4, as many indigenous or
traditional groups use agroecological practices suited to the land.434 In line with this,
customary land tenure systems relying on social capital can improve the sustainable use of
the land by promoting knowledge and skill sharing among farmers.435

Despite these benefits, smallholders with land rights derived only from customary land
tenure systems are vulnerable to dispossession by more powerful actors using formalised land
titles.436 This issue is increasingly significant due to the demand for land by domestic and
foreign entities.437 In the case of indigenous groups; historical events, especially colonisation
and the discriminatory policies that followed, tended to disrupt or remove customary land
tenure systems; while making it either impossible or extremely difficult for indigenous
groups to formalise their land rights.438

430
‘Improving Access to Land and Tenure Security’ (Policy, International Fund for Agricultural Development,
2008) 9 <http://www.ifad.org/pub/policy/land/e.pdf>.
431
Deininger, above n 398; Jon D Unruh, ‘Land Tenure and the “Evidence Landscape” in Developing Countries’
(2006) 96 Annals of the Association of American Geographers 754.
432
George Sarpong, ‘Improving Tenure Security for the Rural Poor: Ghana - Country Case Study’ (Support to
the Legal Empowerment of the Poor Working Paper #2, Food and Agricultural Organization of the United
Nations, 2006) 6 <http://www.fao.org/3/a-k0783e.pdf>.
433
Kojo Amanor, Land, Labour and the Family in Southern Ghana: A Critique of Land Policy Under Neo-
Liberalisation (Nordic Africa Institute, 2001) 10.
434
Peter Orebech, The Role of Customary Law in Sustainable Development (Cambridge University Press, 2005)
22.
435
Elizabeth G Katz, ‘Social Capital and Natural Capital: A Comparative Analysis of Land Tenure and Natural
Resource Management in Guatemala’ (2000) 76 Land Economics 114, 115.
436
See, e.g., Vorley, Cotula and Chan, above n 394.
437
This is discussed in more detail in section 4.8 of this chapter.
438
Note that colonisation was an event fostered by international laws. In contemporary times, systems for
formalised indigenous title have been created that generally co-exist with statutory rights. There are limitations
 Another key issue for customary land tenure systems in the context of a RBA to FS is
the tendency for men to receive disproportionately stronger property rights than women.439
Similar to formal land tenure systems then, customary land tenure systems can also entrench
inequalities, thus adversely affecting the food security status of indigenous or traditional
groups.

4.2.4.3 Hybrid land tenure systems and food security

Hybrid tenure systems do not view formal or customary land tenure arrangements as
opposing alternatives. Instead, socially-based and state formalised property right regimes
evolve in tandem to provide a model for ensuring the sustainable use of land resources.440
Specifically, cultural and local contexts and customary land tenure arrangements are used to
determine the form of formal land tenure arrangements (eg the kinds of titling schemes in
place).441 Thus, hybrid tenure systems combine the cultural and social benefits of customary
land tenure with the security benefits of formalised land tenure arrangements.

This approach to land tenure tends to be supported by common property theorists that
support community management of land and other natural resources.442 The adaptability of
this approach to the circumstances in each country, as well as other aspects such as its respect
for culture make a hybrid approach more compatible with a RBA to FS rather than favouring
customary over formal or vice versa.

Countries, such as Tanzania, Malawi and Uganda, have sought to formalise and codify
customary land rights by registering land rights and creating tenure certificates for
communities, clans or kinship groups.443 In Tanzania, for example, there is a mix of formal
land tenure and customary land arrangements that have also been formalised to an extent,
while remaining adaptable to local circumstances and in touch with customary laws. Fairley,

to these systems in terms of ensuring the land rights of indigenous peoples. For instance, indigenous groups
must meet a burden of proof when illustrating their customary land title (difficult due to colonisation, lack of
records, etc) and governments can generally still extinguish such titles. See, eg, Jérémie Gilbert, Indigenous
Peoples’ Land Rights Under International Law: From Victims to Actors (Transnational Publishers Inc, 2006) ch
2.
439
For example, 24 per cent of the population of India are governed by local customs, such customs tend to
exclude women from inheriting land. See, Gender Discrimination in Land Ownership (SAGE Publications India
Pvt Ltd, 2009) xvi <http://site.ebrary.com/lib/alltitles/docDetail.action?docID=10395784>.
440
See generally, Pole Atanraoi and R Crocombe (eds), Customary Land Tenure and Sustainable Development:
Complementarity or Conflict? (South Pacific Commission, 1995).
441
Orebech, above n 429, 26.
442
Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge
University Press, 1990).
443
Ghebru Hagos and Holden, above n 413.
although supportive of Tanzania’s hybrid approach, found that the balance between diverse,
flexible, locally-acceptable land tenure systems with a more formal registration of lands had
not been struck, and that corruption would likely remain an issue in implementation.444
Similar findings were made by Kepe and Bersaglio in their analysis of land tenure
arrangements for Tanzanian urban farmers.445 These studies illustrate that, without procedural
elements in place that align with human rights such as the rule of law, participation,
transparency and non-discrimination, a land tenure system will not align with a RBA to FS
regardless of the form it takes.

4.3 INTERNATIONAL HUMAN RIGHTS LAW AND LAND TENURE

Human rights and international investment law are the two main international regimes
intersecting with the arrangements governing access to agricultural land. The following
section explores how human rights law intersects with the access to and use of agricultural
land, both through the potential for a human right to land and the human rights treaties that
recognise the land rights of marginalised groups. Various human rights instruments are
relevant, including the Convention Concerning Indigenous and Tribal Peoples in
Independent Countries (Convention 169) and the United Nations Declaration on the Rights of
Indigenous Peoples (UNDRIP). These regulatory tools will be critiqued against a RBA to FS
in terms of whether land tenure is being supported at the international level in such a way as
to align with the criteria proposed in Chapter 3. This will lead onto the discussion in section
4.8 of this chapter regarding international investment regulation and large-scale agricultural
land investments involving foreign actors.

4.3.1 The Human Right to Land

There is no explicit or universal human right to land in the international legal
framework.446 Yet, references to property rights, so both moveable and immovable objects,
are contained in various human rights instruments. Key amongst these is Article 17 of the
UDHR, which provides that:

1. Everyone has the right to own property alone, as well as in association with others.

444
Elizabeth Fairley, Upholding Customary Land Rights through Formalization? Evidence from Tanzania’s
Program of Land Reform (Dissertion for the Degree of Philosophy, University of Minnesota, 2013) 215.
445
Brock Bersaglio, above n 421.
446
There are human rights to land for specific subgroups, namely women and indigenous peoples, which are
discussed further below.
 2. No one shall be arbitrarily deprived of his property.

The right to property seems to apply most strongly in cases where property rights are
recognised and do not need to be acquired. In other words, the right to property only provides
extra protection for those who already have property.447 This interpretation of the right to
property is an issue for the 20 per cent of hungry people that are landless.448

As well as its limited implementation, the human right to property is only contained in
the non-legally binding UDHR. Thus, a human right to property has far less legal legitimacy
than other rights that have been worked into the ICCPR or the ICESCR.449 Despite these
limitations, numerous other human rights that are contained in binding human rights
instruments provide a basis for asserting individual or collective rights to land. These rights
are generally economic, social or cultural in nature and include the right to adequate standard
of living including food and housing (art 11 ICESCR), the right to self-determination (art 1 of
the ICESCR and the ICCPR) and the right to take part in cultural life (art 15 ICESCR).450

Recognition of new rights at the international level is a difficult process, and

recognition of an explicit right to land is unlikely to be politically palatable for states if it is
perceived as a threat to sovereign rights. Furthermore, state organs are unlikely to sign an
agreement that requires they transfer land rights due to the economic value of land and the
attached resources, as well as the administrative difficulties that such a process would
involve.

In any event, a right to land is not going to be helpful for food security purposes where:

 The land is not suitable for agriculture; or

 The individuals or groups that sought to exercise the right to land are already food
insecure with a limited command over other resources,451 or

447
Jérémie Gilbert, ‘Land Rights as Human Rights: The Case for a Specific Right to Land’ (2013) 10
International Journal on Human Rights 114, 117.
448
Who Are Hungry? (2014) World Food Programme
<http://quiz.wfp.org/wfp_quiz_widget/136?nophotos=1&widget_style=small&noborder=0>.
449
Gilbert, above n 442.
450
See, eg, Jean Ziegler, Report of the Special Rapporteur on the right to food, 57th sess, Item 111(b), UN Doc
A/57/356 (27 Aug 2002) [24] where the link between rights to land and the right to food is explained as follows
‘Rural poverty is often closely linked to extreme inequality in access to land. Access to land is often
fundamental for ensuring access to food and to a livelihood, and therefore freedom from hunger’; Miloon
Kothari, Report of the Special Rapporteur on adequate housing as a component of the right to an adequate
standard of living, 61st sess, Item 10, UN Doc E/CN.3/2005/48 (3 March 2005).
451
As discussed in section 4.2.2 of this chapter food insecurity can contribute to tenure insecurity if land assets
have to be sold to purchase food.
  There is a dispute in which numerous parties are asserting rights over land.

Rather, international human rights instruments and institutions need to

comprehensively and directly consider land policies in the human rights framework to
provide guidance on how domestic land policies should develop. To begin, the Office of the
High Commissioner of Human Rights (OHCHR) could conduct a detailed analytical study on
the relationship between land policies and human rights in consultation with stakeholders.
Such a study should consider relevant lessons learned at the various levels of governance and
recommendations for future work to build a policy framework for human rights and land
tenure.

4.3.2 Human Rights, Land Tenure and Marginalised Groups

This section will explore international human rights instruments that intersect with land
tenure security. Although no general human right to land or tenure security has been
established, human rights instruments concerning indigenous peoples and women establish
rights related to land access. This is significant as women in developing countries and
indigenous peoples452 are comparatively more likely to be food insecure and yet reliant on
agriculture for income and food supply.453 A RBA to FS, as reflected in criterion 1 and 2,
requires enabling provisions and instruments that facilitate the equal distribution of
agricultural resources and requires special measures to protect, respect and facilitate the
rights of food insecure groups.

4.3.2.1 Indigenous peoples and land rights

In developed and developing countries, indigenous farmers and communities rely on
agricultural lands, not only for cultural and environmental values, but also for the provision
of food and income for food security.454 Furthermore, long-term food security depends on

452
The term ‘Indigenous Peoples’ (or First Nation peoples) is contested. In Martinez Cobo Jose, ‘Study of the
Problem of Discrimination against Indigenous Populations’ (UN Doc. E/CN.4/Sub.2/1986/7/Add.4, UN Sub-
Commission on Prevention of Discrimination and Protection of Minorities, 1986) para 379 Indigenous peoples
was said to broadly refer to populations that have ‘historical continuity with pre-invasion and pre-colonial
societies that developed on their territories’.
453
It is well known that women and indigenous peoples experience, along with the urban and rural poor,
particular barriers in improving their food security status and realising related human rights. See, eg, ‘The Right
to Adequate Food’ (Fact Sheet No. 34, Office of the High Commissioner for Human Rights, 2010) 9–10 where
particular groups that face specific constraints in relation to food security (eg biological and socioeocnomic
factors as well as discrimination and stigma) were contained in a non-exhaustive list and included women and
indigenous peoples. See also, Report on the 11th Session, Permanent Forum on Indigenous Issues, Supplement
No. 23, Un Doc E/2012/43 (18 Mary 2012) para 56.
454
‘Indigenous Peoples and Their Relationship to Land: Final Working Paper Prepared by the Special
indigenous people being able to preserve and develop their traditional, generally
agroecological methods.455 Thus, strengthening the land tenure security of indigenous groups
is compatible with criterion 4 of a RBA to FS, that is, facilitating agroecology.

For indigenous peoples (and traditional groups), there is a distinct cultural dimension to
a RBA to FS in relation to dietary choices and the production of food.456 For instance, an
indigenous group will not be considered food secure in instances where they only have long-
term access to food that is not culturally acceptable or in instances where they do not have
access to the natural resources required to perform traditional farming practices.457 In this
context, if indigenous groups did not have access to land and/or access to adequate, culturally
acceptable food then it would be a violation of human rights and undermine food security458

Around 15 per cent of people living in extreme poverty in the world are indigenous,
which in turn implies that a substantial number of indigenous peoples struggle with economic
access to food.459 A key, if not the main, reason for this is the expropriation of indigenous
lands. Over the centuries of colonisation, indigenous groups have been forced to move to less
fertile lands.460 In contemporary times, states that were former colonies have often failed to:

 Recognise indigenous rights to land and connected resources;

 Incorporate indigenous rights to land effectively into domestic law;

 Implement laws that protect indigenous lands; and

Rapporteur, Mrs. Erica-Irene A Daes’ (53rd Session, E/CN.4/Sub.2/2001/21, UN Sub-Commission on the

Promotion and Protection of Human Rights, 11 June 2001) <http://www.refworld.org/docid/3d5a2cd00.html>.
455
See, eg, Miguel A Altieri, ‘Linking Ecologists and Traditional Farmers in the Search for Sustainable
Agriculture’ (2004) 2 Frontiers in Ecology and the Environment 35; Fikret Berkes, Johan Colding and Carl
Folke, ‘Rediscovery of Traditional Ecological Knowledge as Adaptive Management’ (2000) 10 Ecological
Applications 1251.
456
Lidija Knuth, ‘The Right to Adequate Food and Indigenous Peoples: How Can the Right to Food Benefit
Indigenous Peoples?’ (Right to Food Unit, Food and Agriculture Organisation of the United Nations, 2009) 60,
9 <http://www.fao.org/docrep/016/ap552e/ap552e.pdf>.
457
In relation to the culturally acceptability of food, this aspect is covered under the food utilisation limb of food
security and human rights related to culture. Likewise, in relation to the ability to practice traditional farming,
this is relevant to the right to take part in cultural life (art 15 ICESCR), the right to food (art 11 ICESCR) and the
right to livelihood.
458
‘The Right to Food and Indigenous Peoples’ (Joint Brief, Food and Agricultural Organization of the United
Nations; Secretariat of the Permanent Forum on Indigenous Issues, 2008)
<http://www.un.org/esa/socdev/unpfii/documents/Right_to_food.pdf>.
459
Rural Poverty: Rural Poverty in the Developing World United Nations Resources for Speakers on Global
Issues <http://www.un.org/en/globalissues/briefingpapers/ruralpov/developingworld.shtml>.
460
Knuth, above n 451, 9.
  Remove the discriminatory nature of laws and legal doctrines that apply to
Indigenous peoples and their lands.461

Two international instruments are particularly relevant in regards to land rights for
indigenous peoples. These are: the Convention Concerning Indigenous and Tribal Peoples in
Independent Countries (Convention 169),462 and the United Nations Declaration on the
Rights of Indigenous Peoples (UNDRIP).463

(a) Comparison of Convention 169 and UNDRIP in regards to land tenure

Convention 169 was adopted in 1989 to address the former and highly criticised
Convention 107, which took an assimilation approach to indigenous culture.464 Convention
169 was designed to promote and preserve indigenous cultural diversity and to outline the
positive actions that governments must take to protect the related rights of indigenous
peoples.465 The International Labour Organisation (ILO) led the creation of Convention 169.
Although indigenous rights are broader than the labour-centred concerns of the ILO, the
organisation began working in the area of indigenous worker rights before WW2 and so, at
the time that Convention 169 was developed, the ILO had more experience and technical
capability than other UN agencies to elaborate on indigenous rights.466

In contrast to Convention 169, the UNDRIP is a non-legally binding instrument that

introduces a framework for indigenous rights.467 In terms of legal status, some scholars have

461
These are summarised and are not all-inclusive, ‘Indigenous Peoples and Their Relationship to Land: Final
Working Paper Prepared by the Special Rapporteur, Mrs. Erica-Irene A. Daes’, above n 449.
462
Convention concerning Indigenous and Tribal Peoples in Independent Countries, opened for signature 27
June 1989, 76th ILC session (Entry into force 05 Sep 1991) art 14(2) (Convention 169).
463
United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN GAOR, 61st sess,107th
plen mtg, Supp No 49, UN Doc A/RES/61/295 (13th September 2007) (UNDRIP)
464
Convention No. 107 is still in force for 18 States who have ratified it and have not yet denounced it or ratified
Convention No. 107, opened for signature 26 June 1957, 40th ILC session (Entry into force 02 Jun 1959). The
main issue with Convention No. 107 is that it had an out-dated understanding of First Nations Peoples that
suggested such groups would disappear into mainstream society and so it encouraged integration instead of
facilitating and acknowledging ethnic and cultural diversity. Note, however, that it had a number of useful
provisions on indigenous land rights. See Articles 11-13 where Convention 107 recognises the collective and
individual ownership rights of indigenous populations over lands they have traditionally occupied, discusses
compensation and respect (albeit limited) to indigenous rights to cultural uses of land. For more information,
see, Convention No. 107 (Indigenous and Tribal Peoples) International Labour Organization
<http://www.ilo.org/indigenous/Conventions/no107/lang--en/index.htm>.
465
Convention 169 art 2(1). The rights outlined in the convention are in line with other human rights
instruments.
466
Lee Swepston, ‘New Step in the International Law on Indigenous and Tribal Peoples: ILO Convention No.
169 of 1989, A’ (1990) 15 Oklahoma City University Law Review 677, 681.
467
See, eg, Matthew Coone Come, Grand Chief of the Grand Council of the Crees at a seminar organised by the
Aboriginal and Torres Strait Islander Commission, Sydney, 1995, cited in Sarah Pritchard and Charlotte
argued that the UNDRIP is merely a ‘highly persuasive tool’ to be used by states when
forming domestic laws.468 Others argue that the UNDRIP reflects customary international law
and so is ‘binding on states that do not qualify as persistent objectors’.469 Regardless,
UNDRIP was adopted by 144 states, while the Convention 169 only has 22 signatories. 470
Arguably then, UNDRIP has more influence and political legitimacy despite it’s legal status.

Both Convention 169 and the UNDRIP contain provisions concerning land rights and
recognise the distinctive, collective relationship between indigenous peoples and the land that
they occupy or use.471 The table below compares the provisions relating to land in the
UNDRIP and Convention 169.

Heindow-Dolman ‘Indigenous Peoples and International Law: A critical Overview’ (1998) 3 Australian
Indigenous Law Reporter 472,477.
468
Stephen Allen, ‘The UN Declaration on the Rights of Indigenous Peoples and the Limits of the International
Legal Project in the Indigenous Context’ (SSRN Scholarly Paper ID 1497946, Social Science Research
Network, 1 November 2009) 1 <http://papers.ssrn.com/abstract=1497946> citing; Stephen Allen, ‘The UN
Declaration on the Rights of Indigenous Peoples and the Limits of the International Legal Project’ in Stephen
Allen and Alexandra Xanthaki (eds), Reflections on the United Nations Declaration on the Rights of Indigenous
Peoples (Hart Publishing Limited, 2011) 225.
469
See, eg, Carrie E Garrow, ‘The Freedom to Pass and Repass: Can the UN Declaration on the Rights of
Indigenous Peoples Keep the US-Canadian Border Ten Feet above Our Heads?’ in Elvira Pulitano (ed),
Indigenous Rights in the Age of the UN Declaration (Cambridge University Press, 2012) 172, 178; Siegfried
Wiessner, ‘Indigenous Sovereignty: A Reassessment in Light of the UN Declaration on the Rights of Indigenous
People’ (2008) 41 Vanderbilt Journal of Transnational Law 1141, 1176.
470
Twenty-two countries have ratified Convention 169 at March 2016. See, NORMLEX - Information System on
International Labour Standards <http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:1:0>.
471
Convention 169 art 13(1).
Table 4.1 Comparison of Land Right Provisions in UNDRIP and Convention 169

Type of  UNDRIP  Convention 169

Provision 
Right to lands  Indigenous peoples have the right to the lands, territories and resources which  The rights of ownership and possession of the peoples concerned over the lands which 
they have traditionally owned, occupied or otherwise used or acquired (art  they traditionally occupy shall be recognised (art 14(1))  
26(1)) 
Rights to use  Indigenous peoples have the right to own, use, develop and control the lands,  The rights of the peoples concerned to the natural resources pertaining to their lands 
lands and  territories and resources that they possess by reason of traditional ownership or  shall be specially safeguarded. These rights include the right of these peoples to 
natural  other traditional occupation or use (art 26(2)).  participate in the use, management and conservation of these resources (art 15(1)).  
resources 
Land Tenure  States shall give legal recognition and protection to these lands, territories and  Procedures established by the peoples concerned for the transmission of land rights 
Systems  resources. Such recognition shall be conducted with due respect to the customs,  among members of these peoples shall be respected. 
traditions and land tenure systems of the indigenous peoples concerned (art 
26(3)).  
Procedures to  States shall establish and implement, in conjunction with indigenous peoples  Governments shall take steps as necessary to identify the lands which the peoples 
transmit land  concerned, a fair, independent, impartial, open and transparent process, giving  concerned traditionally occupy, and to guarantee effective protection of their rights of 
rights  due recognition to indigenous peoples’ laws, traditions, customs and land tenure  ownership and possession (art 14(2)) 
systems, to recognize and adjudicate the rights of indigenous peoples pertaining 
to their lands, territories and resources, including those which were traditionally 
owned or otherwise occupied or used. Indigenous peoples shall have the right to 
participate in this process. (art 27) 
Protections  Indigenous peoples shall not be forcibly removed from their lands or territories.  The peoples concerned shall not be removed from the lands which they occupy…Where 
against  No relocation shall take place without the free, prior and informed consent of  the relocation of these peoples is considered necessary as an exceptional measure, such 
removal and  the indigenous peoples concerned and after agreement on just and fair  relocation shall take place only with their free and informed consent (art 16).  
relocation   compensation and, where possible, with the option of return (art 10) 
Cultural rights  Indigenous peoples have the right to maintain and strengthen their distinctive  Governments shall respect the special importance for the cultures and spiritual values 
related to  spiritual relationship with their traditionally owned or otherwise occupied and  of the peoples concerned of their relationship with the lands or territories, or both as 
lands  used lands, territories, waters and coastal seas and other resources and to  applicable, which they occupy or otherwise use, and in particular the collective aspects 
uphold their responsibilities to future generations in this regard (art 25)  of this relationship (art 13).  

Provisions    National agrarian programmes shall secure to the peoples concerned treatment 
specific to  equivalent to that accorded to other sectors of the population with regard to: the 
agricultural  provision of more land for these peoples when they have not the area necessary for 
lands  providing the essentials of a normal existence…the provision of the means required to 
promote the development of the lands (art 19).  

Chapter 4: Land 119

 As illustrated in the above table, Convention 169 has a specific provision
related to food security and agriculture in the context of indigenous land rights unlike
UNDRIP. Convention 169 considers not only agrarian programs to redistribute land,
but also the broader regulatory support required to enable farming on the land. This
may include, for instance, farmer schools in which indigenous farmers can learn,
teach and share agroecological methods.472 Because Convention 169 directly
considers the equitable distribution of agricultural lands, it is more consistent with
criterion 1 and 2 of a RBA to FS than UNDRIP. In particular, it is reflective of
criterion 1, which requires instruments that enable the fair and equal distribution of
agricultural resources, and criterion 2, which involves the provision of special
support for food insecure groups (in this case, landless indigenous peoples).

Overall, though, Convention 169 is more ambiguous than UNDRIP, which the
above table illustrates. As an example of these differences, Convention 169
recognises the rights of indigenous peoples to own and possess lands that ‘they
traditionally occupy’,473 while UNDRIP does not limit rights-holders to those who
traditionally occupied the lands. Instead, UNDRIP acknowledges the land rights that
indigenous peoples have over lands they have ‘owned, occupied or otherwise used or
acquired’.474

It is important that the UNDRIP has adopted a more flexible view of

‘traditional occupation’ given the history of indigenous people being forcibly
removed by European settlers. This means that indigenous populations may be on
lands that they did not traditionally occupy, but that they have otherwise acquired or
use. Further, the UNDRIP approach to land rights more clearly addresses the land
rights of nomadic indigenous people where their occupation of land fluctuates.475

472
See, eg, Henk Van den Berg and Janice Jiggins, ‘Investing in Farmers—The Impacts of Farmer
Field Schools in Relation to Integrated Pest Management’ (2007) 35 World Development 663.
473
Convention 169 art 14.
474
UNDRIP art 26(1).
475
A related distinction is that UNDRIP promotes a hybrid approach to land tenure in which customs
are incorporated into more formalised written law arrangements, while Convention 169 prefers to
maintain the distinction between formal and customary land tenure systems. Although context and the
stakeholders involved determine the most suitable land tenure system for progressing human rights
and food security, hybrid systems are likely to provide more tenure security where foreign or domestic
actors try to expropriate the land, because indigenous peoples can use the legal frameworks that
foreign actors understand to enforce their rights.
Such an approach to land rights is more compatible, therefore, with criterion 2 of a
RBA to FS.

Yet, UNDRIP does not address secure access and use of land for agricultural
purposes like Convention 169. Neither UNDRIP nor Convention 169 explicitly
promote traditional farming methods or discuss the land and food security nexus
specific to indigenous peoples. Given that indigenous people are more likely to be
food insecure and that a large portion of small-scale farmers are indigenous,476 the
international regulatory framework for agriculture needs an instrument that more
directly engages with indigenous agricultural systems.

A regulatory instrument concerning the continuation and facilitation of

indigenous agricultural practices could take the form of a declaration or a binding
agreement.477 Such an instrument should be formulated using participatory processes
and specifically consultations with indigenous farmers and indigenous farmer
representatives. Depending on the outcome of these consultations, this instrument
could affirm the connections between, and require state action towards, securing
rights to agricultural lands for indigenous peoples and the continuation of indigenous
agricultural land uses. Furthermore, the instrument should seek to tap into climate
finance to improve its impact given the links between indigenous agricultural
systems and climate-smart agriculture that employs agroecological practices.

(b) Implementation

Effective implementation of UNDRIP and Convention 169 into domestic

policies could have flow on effects that significantly improve food security for
indigenous groups. Unfortunately, implementation has been relatively limited due to
a lack of political will and resource constraints.

Bellier and Preaud conducted a useful qualitative study on the constitutional

status of indigenous peoples’ rights to land across various regions.478 They found that
recognition of indigenous land rights (particularly those recognised in UNDRIP) has

476
See, eg, ‘IFAD Policy on Engagement with Indigenous Peoples’ (Executive Board, Ninety-seventh
Session EB 2009/97/R.3, International Fund for Agricultural Development, 4 August 2009) 3–4
<http://www.gojil.eu/issues/51/51_article_goecke.pdf>.
477
A more binding agreement would have legal legitimacy, but a non-binding declaration may have
more comprehensive articles that challenge the status quo.
478
Irène Bellier and Martin Préaud, ‘Emerging Issues in Indigenous Rights: Transformative Effects of
the Recognition of Indigenous Peoples’ (2012) 16 The International Journal of Human Rights 474.
been limited in Asia and Africa.479 Meanwhile, Latin American countries have
implemented UNDRIP through constitutional and domestic law reform. Burns
indicated, however, that the constitutional protections in Latin American countries
have not had a significant role in protecting indigenous land rights, as they are either
not implemented or not effectively incorporated into other domestic legal
frameworks.480

Nevertheless, indigenous groups in countries that were in opposition to

UNDRIP and are not signatories to Convention 169, 481 have still been able to use
these instruments to influence government programmes and actions that promote
access to and management of traditional lands.482 Moreover, UNDRIP has been used
in case law to interpret indigenous land rights.483

4.3.2.2 Women and Property Rights

(a) Women and food security

Gender equality is a critical component of a RBA to FS. Currently, women

provide 60 to 80 per cent of food in developing countries and they produce half of
the world’s food worldwide.484 A large body of work has found that, on average,

479
While Bellier and Préaud were focused on UNDRIP and domestic constitutions, studies on the
implementation of Convention 169 have had similar findings. For example, Jones assessed the
implementation of Convention 169 in Nepal, and found that ‘…implementation is hostage to
entrenched political patronage and political culture’ and that there remained ‘a striking absence of
constitutional provisions, concrete institutional mechanisms, policy guidelines and delivery of
tangible local benefits’. See, Peris Sean Jones, ‘Powering up the People? The Politics of Indigenous
Rights Implementation: International Labour Organisation Convention 169 and Hydroelectric Power
in Nepal’ (2012) 16 The International Journal of Human Rights 624, 624.
480
Marcelle Burns, ‘Shifting Global Power and Indigenous Rights’ in Rowena Maguire, Bridget
Lewis and Charles Sampford (eds), Shifting Global Powers and International Law: Challenges and
Opportunities (Routledge, 2013) 154, 163.
481
The four countries that originally voted against the UNDRIP were Canada, the USA, New Zealand
and Australia. They have reversed their previous position but issues and tensions are on-going in
relation to indigenous land rights. See, eg, Terry Mitchell and Charis Enns, ‘The UN Declaration on
the Rights of Indigenous Peoples: Monitoring and Realizing Indigenous Rights in Canada’ (Policy
Brief No. 39, Centre for International Governance Innovation, 2014)
<https://www.cigionline.org/sites/default/files/cigi_pb_39.pdf>.
482
Bellier and Préaud, above n 473; See also, Aileen Moreton-Robinson, ‘Virtuous Racial States’
(2011) 20 Griffith Law Review 641 where the author examines the ways in which countries in
opposition to UNDRIP responded to the instrument in a way that reinforces inequality and white
priviledge.
483
See, eg, Saramaka People v Suriname [2007] Inter-Am.Ct.HR [138] where the commission used
UNDRIP to interpret the concept of benefit-sharing.
484
These figures are found through FAO reports, see eg, ‘Women- Key to Food Security’ (FAO at
Work, 2010-2011, Food and Agriculture Organisation of the United Nations, 2011) 24, 4
<http://www.fao.org/docrep/014/am719e/am719e00.pdf>; Women and Sustainable Food Security,
where a female has control of the household’s income child nutrition and food
security is more prioritised than where household income is controlled by a male.485.
The FAO estimates that, based only on the existing distribution of land, if women
farmers had the same rights over land and access to other resources as men, then the
number of starving people would be reduced by 100 to 150 million people.486
Additionally, women are more likely to adopt sustainable farming practices, which
promotes long-term food security.487

In countries where women do not have equal rights to land, their children are
on average 60 per cent more malnourished, and in countries where women cannot
access credit (due to, for instance, a lack of property rights), then the number of
malnourished children is an estimated 85 per cent higher than average.488 Likewise,
land tenure security for women in developing countries is fundamental to reducing
women’s vulnerability to domestic violence and potential of contracting HIV, both of
which influence food security outcomes.489

A key barrier to food security then is that land rights for women in developing
countries are unequal and denied.490 Across the main developing regions in the

above n 5.
485
See, eg, Keera Allendorf, ‘Do Women’s Land Rights Promote Empowerment and Child Health in
Nepal?’ (2007) 35 World Development 1975 where it was found that women’s land rights give women
the final say in household decisions (a measure of empowerment) and children of mothers who own
land are significantly less likely to be severely underweight; Nitya Rao, ‘Land Rights, Gender
Equality and Household Food Security: Exploring the Conceptual Links in the Case of India’ (2006)
31 Food Policy 180 where it was found that, in India, men had better access to higher, off-farm jobs,
while women stayed behind to manage agricultural production. Rao questioned the seemingly
straightforward link between gender equality, land rights and food security and argued that equal
access to resources for women needs to be coupled with the strengthening of a range of entitlements
(eg political decision-making).; Supriya Garikipati, ‘The Impact of Lending to Women on Household
Vulnerability and Women’s Empowerment: Evidence from India’ (2008) 36 World Development 2620
found that, in Indian, loans procured by women ‘may easily be diverted into enhancing household
assets and incomes but given her lack of co-ownership of family’s productive assets, access to credit
may not result in her empowerment’. Accordingly, the household benefits, but not the pursuit of
gender equality.
486
‘The State of Food and Agriculture- Women in Agriculture: Closing the Gender Gap for
Development’ (Food and Agriculture Organisation of the United Nations, 2011 2010) 42.
487
Amy Trauger, ‘“Because They Can Do the Work”: Women Farmers in Sustainable Agriculture in
Pennsylvania, USA’ (2004) 11 Gender, Place & Culture 289 where the author illustrates the
connections between women empowerment and sustainable methods of food production.
488
‘Gender Inequality and the MDGs: What Are the Missing Dimensions?’ (OECD, September 2010)
2 <http://www.oecd.org/dev/development-gender/45987065.pdf>.
489
See, eg, Caitlin Wiesen et al, ‘Voices and Visions: The Asia Pacific Court of Women on HIV,
Inheritance and Property Rights’ (UN Aids; United Nations Development Programme, 2008) 40 for a
comprehensive analysis.
490
‘The State of Food and Agriculture- Women in Agriculture: Closing the Gender Gap for
Development’, above n 481, 8.
world, substantial gender inequalities in access to land exist, and this inequality is
especially prevalent in Latin America, South and Central Asia, and Africa.491 The
FAO reports that:

In a number of countries in North Africa and West Asia…women account

for fewer than five percent of landholders. And even in the region where
their access to farmland is greatest, Latin America, only 25 percent of those
holding land are women.492

Land rights in these regions are generally held by men or by groups that are
controlled by men; subsequently, women obtain access to land mainly through a
male relative.493

As a result of this dependence on males for land use rights, the access women
farmers have to land is generally insecure. Women have difficulties securing access
after obtaining a divorce, being widowed or in situations where they cannot inherit
family-owned land according to state or customary legal systems. In Zambia, for
example, one third of widows lose access to family land after their husbands die.494
Budlender and Alma explained that ‘Many women who have conditional access to
land may lose it when their husbands die; others may lose the right to use the land
their livelihoods depend on if male family or community members believe they can
profit by selling it’.495

Even if women have access to land for farming, small-scale women farmers could be
required to pass any farm profits to the male-heads of the household, and they tend to

491
Ibid.
492
‘Women- Key to Food Security’, above n 479, 4.
493
See, eg, Terri Raney et al, ‘Gender differences in assets’ (ESA Working Paper No. 11-12,
Agricultural Development Economics Division, Food and Agriculture Organization of the United
Nations, 2011) <http://www.fao.org/docrep/013/am317e/am317e00.pdf>. See also F A Macha, M
Msonganzila and Donna Kerner, ‘Enabled or Invisible: The Role of Women in the Cooperative
Movement Transition.’ [1992] Tushirikiane (Journal of Cooperative Studies) 76; Cited in Margareth
Msonganzila, Gender, Cooperative Organisation and Participatory Intervention in Rural Tanzania :
A Case Study of Different Types of Cooperatives and Moshi University College’s Support to Rural
Women (Thesis submitted for the Degree of Doctor of Philosophy, Wageningen School of Social
Sciences, 2013) 41.
494
Mary Kimani, ‘Women Struggle to Secure Land Rights’ Food and Agriculture Organisation of the
United Nations: Africa Renewal Online, 2012 37.
495
Debbie Budlender and Eileen Alma, Women and Land: Securing Rights for Better Lives
(International Development Research Centre, 2011) 4 <http://idl-
bnc.idrc.ca/dspace/bitstream/10625/47431/1/IDL-47431.pdf>.
have limited say over how that income is spent.496 Empirical research conducted in
both Kenya and Malawi compared female-headed households (where males were
absent for more than 50 per cent of the time) with male-headed households.497 It
found that, female-headed households, while having the lowest incomes, had
children with a significantly better nutritional status than male-headed households
with higher incomes.498

(b) Gender equality under formal and customary land tenure systems

Customary land tenure systems have been disrupted as a result of colonisation

and as part of this process some customary tenure systems have developed in ways
that discriminate against women.499 Likewise, the formalisation and commodification
of land tenure through colonisation has tended to weaken the position of women in
developing countries.500

Turning to Vanuatu as an example, pre-colonisation customary tenure systems

generally treated land as communal or common property, and so everyone had
collective and equal rights to land regardless of gender.501 However, this
understanding shifted when a Western-style, individualised property rights and
statutory land tenure system was introduced. The post-colonial land tenure system
inadvertently had the effect of emphasising men’s rights to property through the
titling processes.502 Napau explained:

496
Women’s Control over Economic Resources and Access to Financial Resources, including
Microfinance (2009 World Survey on the Role of Women in Development, UN Doc ST/ESA/326,
2009) 2 <http://www.un.org/womenwatch/daw/public/WorldSurvey2009.pdf>.
497
The study was comparing against three subsets de jure (legal head of household is a woman); de
facto (male absent 50 per cent of time) and male-headed households. The suggestion is that women
control the income when men are largely absent.
498
Eileen Kennedy and Pauline Peters, ‘Household Food Security and Child Nutrition: The Interaction
of Income and Gender of Household Head’ (1992) 20 World Development 1077.
499
See, eg, Ann Whitehead and Dzodzi Tsikata, ‘Policy Discourses on Women’s Land Rights in Sub–
Saharan Africa: The Implications of the Re-turn to the Customary’ (2003) 3 Journal of Agrarian
Change 67.
500
For more information regarding the role of colonisation in changing customary land tenure
systems, see Celestine I Nyamu, ‘How Should Human Rights and Development Respond to Cultural
Legitimization of Gender Hierarchy in Developing Countries’ (2000) 41 Harvard International Law
Journal 381, 396–398.
501
Selwyn Arutangai, ‘Vanuatu: Overcoming the Colonial Legacy’ in R G Crocombe (ed), Land
Tenure in the Pacific (University of the South Pacific, 3rd ed, 1987) 261.
502
Margaret Jolly, Women of the Place: Kastom, Colonialism and Gender in Vanuatu (Routledge,
2014).
 …the references to landowners in legislation have been interpreted as
individual (and typically male) ownership. The concept of land as a common
basket breaks down and we begin to see the marginalisation of women (and
less influential men).503

Similarly, in pre-colonial Africa, Karanja argued that, while lacking inheritance

rights, women had security of tenure because of the social and subsistence economic
systems in place that gave ‘[s]ecurity of tenure rooted in their structural role as
lineage wives…’.504 Knowles added that ‘In theory, customary systems of land
tenure and use traditionally provided some recourse for women in need of land for
food production…’.505 To summarise, due to tenure changes and the broader
economic, social and political shifts during colonialism and independence, customary
and statutory laws have commonly developed in a way that has resulted in women
losing land tenure security. 506

Some commentators have argued that formalised, state-based mechanisms will

best improve land tenure security for women based on the position that customary
law (as it is currently interpreted) will only further the interests of politically
influential men (eg chiefs).507 At the same time, legal feminists are critical of
formalised land tenure arrangements, including titling, on the grounds that such
frameworks entrench structural inequities.508

Irrespective of this debate, and as was established in section 4.2.2 of this

chapter, no specific land tenure reform can entirely address the marginalisation of
women farmers and the food insecurity issues that follow. In order to improve
women’s rights to land for food security purposes, gender inequalities related to, for
instance, access to credit, education and political and legal institutions, must be
addressed in an integrated fashion by international and domestic regulatory

503
Anna Naupa, ‘Kastom, Women and Land in Vanuatu’ 5
<https://www.academia.edu/8764184/Kastom_women_and_land_in_Vanuatu>; See also, Jolly, above
n 497, 61 for an explanation of customary land tenure in Vanuatu.
504
Perpetua Wambui Karanja, ‘Women’s Land Ownership Rights in Kenya’ (1991) 10 Third World
Legal Studies 109, 116.
505
Jane Knowles, ‘Women’s Access to Land in Africa’ (1991) 10 Third World Legal Studies 1, 5.
506
Florence Butegwa, ‘Women's Legal Right of Access to Agricultural Resources in Africa: A
Preliminary Inquiry’ (1991) 10 Third World Legal Studies 45, 48.
507
Whitehead and Tsikata, above n 494, 103–104.
508
See, eg, Lyn Ossome, ‘Can the Law Secure Women’s Rights to Land in Africa? Revisiting Tensions
Between Culture and Land Commercialization’ (2014) 20 Feminist Economics 155.
frameworks. Such an approach is consistent with a RBA to FS, which incorporates a
range of human rights.

(c) Convention on the Elimination of All Forms of Discrimination

Against Women

The key instrument regarding women and land tenure rights is the Convention
on the Elimination of All Forms of Discrimination against Women (CEDAW).509 The
main provisions relevant to land tenure security in connection with food security are
contained in Articles 14-16, which provide that state parties are obligated to:

 Ensure that women have the right to ‘[a]ccess agricultural credit and loans,
marketing facilities, appropriate technology and equal treatment in land
and agrarian reform, as well as in land resettlement schemes’.510

 Provide women with ‘[e]qual rights to conclude contracts and to

administer property’,511 and

 Require ‘[t]he same rights for both spouses in respect of the ownership,
acquisition, management, administration, enjoyment and disposition of
property’.512

Because CEDAW focuses on eliminating inequities and ensuring equal rights, it

would seem that CEDAW is adopting a formal equality approach to land tenure
insecurity. In relation to land, CEDAW is designed to influence the removal of laws
that foster unequal access to land and other agricultural resources for women; but
CEDAW does not appear to require specific, positive actions by state parties to
enable women to obtain land rights. In this way, CEDAW does not directly
acknowledge that small-scale women farmers in developing countries are starting
from a position of disadvantage.

Interestingly then, CEDAW may not be consistent with a RBA to FS, which
adopts a substantive equality approach by acknowledging that special measures are
required to support and empower food insecure groups (in this case, small-scale

509
Convention on the Elimination of All Forms of Discrimination against Women, opened for
signature 18 December 1979, 13 UNTS 1249 (entered into force 3 September 1981) (CEDAW).
510
CEDAW art 14(2)(g).
511
Ibid art 15(2).
512
CEDAW art 16(1)(h).
women farmers). Nevertheless, human rights bodies have interpreted CEDAW in a
way that requires positive measures by states to facilitate equal access to land, which
suggests that CEDAW is not incompatible with criterion 2 of a RBA to FS.513

4.4 IMPLEMENTATION

In an ideal situation, if state parties incorporated CEDAW into their legal and
policy frameworks, and took measures to support women in obtaining land rights, the
CEDAW would be a profound instrument for a RBA to FS.514 Yet, the
implementation of CEDAW to date has been weak.

The lack of implementation is partly due to CEDAW’s limited compliance

mechanisms, as the treaty does not impose clear obligations on state parties that align
with some kind of action plan, timeline or complaint system.515 Kathree argue
‘Placing a time limit on states will demand of them a greater seriousness than is
presently displayed’.516

In response to these critiques, an Optional Protocol was created that allows

individuals or groups to submit a complaint to the CEDAW committee alleging that a
state party had violated its obligations under the convention. The Optional Protocol is

513
CEDAW has a number of provisions that have been used to broaden its interpretation. In particular,
Article 4 seems to reflect a more contextualised understanding of equality, as states agreed that the
adoption of ‘temporary special measures aimed at accelerating de facto equality between men and
women’ would not be discrimination, and that such measures should be discontinued once they had
achieved their objectives. This provision does not seem to be requiring states to adopt special
measures, but regardless such actions are required through the obligation on states to facilitate human
rights. However, the Committee on the Elimination of Discrimination Against Women (CEDAW
Committee) has interpreted Article 4 to mean that state parties are obligated to ‘…improve the
position of women to one of de facto or substantive equality with men’. See, Committee on the
Elimination of Discrimination Against Women, General Recommendation No. 25: Article 4,
paragraph 1, of the Convention (temporary special measures), 30th sess, (2004) [18]. In other words,
there is an obligation on state parties to facilitate equal access to land. Consequently, the obligations
from Articles 14-16 could be read in a way that requires states to adopt measures that facilitate equal
access to land. The fact remains, however, that this interpretation is not explicit in the text and so,
from an RBA to FS perspective, the CEDAW may be limited
514
The implementation of this treaty is monitored by CEDAW Committee, which is composed of
experts nominated by states and elected by state parties. Member states must implement these
principles at a domestic level by taking all appropriate measures, including law reform. Every four
years, parties to CEDAW must submit a report to the CEDAW Committee evidencing the measures
they have taken to give effect to the convention. In response, the committee provides general and
specific recommendations and reports findings to the General Assembly, as well as to other relevant
UN bodies. See, CEDAW arts 2, 17, 18, 21.
515
Note, there is also a petition system.
516
Fayeeza Kathree, ‘Convention on the Elimination of All Forms of Discrimination against Women’
(1995) 11 South African Journal on Human Rights 421, 425.
a critical first step towards an international avenue through which women are
empowered, by themselves and through representatives, to enforce their rights. The
development of a complaint mechanism is compatible with criterion 3 of a RBA to
FS, which requires the incorporation of human rights principles (eg accountability
and rule of law) into international instruments that intersect with agriculture.
Nevertheless, political rights and education must be fostered at a local level in order
for women in developing countries to make use of such avenues.

Another reason the implementation of CEDAW has been limited and

problematic is that often customary and not state laws have the effect of
discriminating against women. The implementation difficulties experienced by
CEDAW raise issues regarding the compatibility of legal pluralism with international
human rights law.517 As explained by the CEDAW Committee, ‘The co-existence of
multiple legal systems, with customary and religious laws governing personal status
and private life and prevailing over positive law and even constitutional provisions of
equality, remains a source of great concern’.518 Consequently, top-down initiatives
like CEDAW will not be sufficient to improve and secure access to land for women
farmers because it cannot directly influence customary or religious laws.519

Rather, facilitating bottom-up initiatives and a middle-ground approach that

balances gender equality, cultural rights and the realities in which women live should
be a main role of top-down measures like CEDAW.520 Such an approach is consistent

517
See, Helen Quane, ‘Legal Pluralism and International Human Rights Law: Inherently
Incompatible, Mutually Reinforcing or Something in Between?’ (2013) 33 Oxford Journal of Legal
Studies 675.
518
Committee on the Elimination of Discrimination against Women, Statement to commemorate the
twenty-fifth anniversary of the adoption of the Convention on the Elimination of All Forms of
Discrimination Against Women (13 October 2004)
<http://www.un.org/womenwatch/daw/cedaw/cedaw25anniversary/statement/CEDAW%20statement
%20E.pdf> 2.
519
Generally, it is held by human rights bodies that customary law must be compatible with human
rights law. See, eg, Human Rights Committee, Consideration of Reports Submitted by States Parties
under Article 40 of the Covenant: Concluding observations of the Human Rights Committee - The
Gambia, 81st sess, UN Doc CCPR/CO/75 GMB (12 August 2004) 5, where it is advised that ‘The
State party should take appropriate measures to ensure that domestic laws (including decrees) and
customary law, as well as certain aspects of the Shariah, are interpreted and applied in ways
compatible with the provisions of the Covenant. It should ensure the equality of women with men,
both in education and employment’; Committee of the Elimination of Racial Discrimination,
Consideration of Reports submitted by States Parties under Article 9 of the Convention: Concluding
observations of the Committee on the Elimination of Racial Discrimination- South Africa, 69th sess,
UN Doc CERD/C/ZAF/CO/3 (19 October 2006) 3-4.
520
Vedna Jivan and Christine Forster, ‘What Would Gandhi Say? Reconciling Universalism, Cultural
Relativism and Feminism Through Women’s Use of Cedaw’ (2005) 9 Singapore Year Book of
with a RBA to FS, which recognises the right to freedom of religion and the right to
take part in a cultural life subject to limitations necessary to protect morals, health or
the fundamental rights and freedoms of others.521

Despite the fact that bottom-up measures are likely to be the most impactful in
this area, there are still changes that could be made at the international level. For
instance, CEDAW should be better integrated into instruments and discourses on
land tenure security for indigenous peoples. UNDRIP has started this process by
affirming that ‘States shall take measures, in conjunction with indigenous peoples, to
ensure that indigenous women…enjoy the full protection and guarantees against all
forms of discrimination’.522 A more coordinated approach to the land rights of
indigenous, women farmers at the international level could help mobilise resources
in ways that may better promote food security. Such an approach is consistent with
criterion 3 of a RBA to FS, which requires logical interconnections across
agricultural governance arrangements, including the alignment of regulatory,
institutional and financial arrangements, as part of the rule of law.

The focus in CEDAW on state-based law reform means that additional

international responses are required for a RBA to FS that enable positive measures
for improving land tenure security for women. For instance, climate finance or
finance related to soil degradation (discussed in the next chapter) could be directed
towards land plots for women farmers to carry out climate-smart, soil-conserving
agricultural practices.523 Likewise, trade law could incorporate exemptions or
incentives that improve market access for women farmers in developing countries.

4.5 FOREIGN DIRECT INVESTMENT IN LAND: LARGE-SCALE

AGRICULTURAL LAND INVESTMENTS

The international instruments discussed in this chapter thus far have not
specifically dealt with the link between secure access to agricultural land and food
security. Instead, the agreements covered land tenure arrangements generally.

International Law 103 ‘Should feminists ignore local cultural traditions and practices at the expense
of those traditions and practices, or should States uphold the traditions and practices of their
population and such laws which protect these at the expense of gender equality?’
521
ICCPR art 18(1),(3); ICESCR art 15(1)(a).
522
UNDRIP art 22.
523
The effect of international funding will be limited unless effective anti-corruption measures and
practices exist.
Similarly, land investments involving foreign entities have long been regulated under
international investment law without specific concern for agricultural land in the
context of food security.

In recent years, the lack of international regulation pertaining to agricultural

land and food security has become apparent as a result of the increasing scale and
number of large-scale agricultural land investment. Consequently, international
institutions have, in the last few years, provided a number of non-binding
instruments concerning land tenure arrangements and agricultural land investments.

The following will briefly define large-scale agricultural land investments

involving foreign entities (LSALIs) and identify the issues from a RBA to FS
perspective. It will then outline the various international regulations that intersect
with LSALIs. The focus here is on whether the international regulation of LSALIs is
consistent with RBA to FS. Excluded from this discussion are the instruments
created through public-private partnerships or private forms of governance, though
these instruments play an important role and are an area for future research.524

4.5.1 Large-Scale Agricultural Land Investments and Food Security

4.5.1.1 Large-scale agricultural land investments: Definition and scale
Large-scale agricultural land investments (LSALIs) involving foreign entities
are a form of foreign investment. Such investment is defined as ‘[t]he transfer of
tangible or intangible assets from one country to another for the purpose of their use
in that country to generate wealth under the total or partial control of the owner of
assets’.525 The transfer of real property, that is, land, constitutes a foreign direct
investment (FDIs).526

There is no legal definition for the current form of LSALIs. However, guidance
can be found in the relevant international institutional reports and through the large
body of academic work dealing with LSALIs. Commonly, LSALIs occur when

524
For more information, see eg, Ariane Goetz, ‘Private Governance and Land Grabbing: The Equator
Principles and the Roundtable on Sustainable Biofuels’ (2013) 10 Globalizations 199.
525
Muthucumaraswamy Sornarajah, International Law on Foreign Investment (2nd Edition)
(Cambridge University Press, 2004) 7
<http://site.ebrary.com/lib/alltitles/docDetail.action?docID=10131738>. Note that although this thesis
deals with foreign entities involved in large-scale land investments, often domestic actors are involved
in such deals with or instead of foreign actors.
526
Ibid.
foreign entities obtain, through leases or concession agreements, property rights (eg
ownership, access or use) over land, such land is considered large-scale by
comparison with the average land holdings in the host country.527 Most LSALIs
involve a land-use change, such as the conversion of food crops into non-food crops
or the conversion of food crops for domestic consumption into food crops for
export.528 State governments attract such investments by privatising or leasing land
that is public, idle or communal.529 Often these land deals involve the appropriation
of connected or nearby natural resources, such as fresh water sources or minerals.
Moreover, to be considered a LSALI, a land deal must have occurred within the last
decade and be connected to global trends and issues, such as climate change and
domestic food security concerns.530

Various reports and studies have examined the extent of LSALIs in different
ways. A report for the World Bank estimated that the average annual increase of
global agricultural land deals before 2008 was less than 4 million hectares, but by the
end of 2009 the average annual increase was an astounding 56 million hectares.531 In
a large, empirical study, environmental scientists Rulli et al. (2013, 892) concluded
that ‘[l]and and water grabbing are occurring at alarming rates in all continents
except Antarctica…’.532 These researchers estimated that 19.6 per cent of land in

527
This is paraphrased from the most commonly cited definition of LSLIs, which comes from Lorenzo
Cotula et al, ‘Land Grab or Development opportunity? Agricultural Investment and International Land
Deals in Africa’ (Food and Agriculture Organisation of the United Nations; the International Fund for
Agricultural Development; the International Institute for Environment and Development, 2009) 111,
17.
528
See, Saturnino Borras Jr and Jennifer C Franco, ‘Towards a Broader View of Politics of Global
Land Grab: Rethinking Land Issues, Reframing Resistance’ (ICAS Working Paper Series No.001,
Initiatives in Critical Agrarian Studies, Land Deal Politics Initiative and Transnational Institute., May
2010) 39.
529
Rushini De Zoysa, ‘The Implications of Large Scale Land Acquisition on Small Landholder’s
Food Security’ (Development Planning Unit Working Paper No. 156, Development Planning Unit,
The Barlett, and University College of London, September 2013) 34, 5.
530
See, eg, Saturnino M Borras Jr et al, ‘Land Grabbing in Latin America and the Carribean Viewed
from Broader International Perspectives’ (A paper prepared for and presented at the Latin America
and Caribbean seminar: ‘Dinámicas en el mercado de la tierra en América Latina y el Caribe’, 14-15
November, FAO Regional Office, Santiago, Chile, Food and Agricultural Organization of the United
Nations, 14 November 2011) 11
<https://www.tni.org/files/download/borras_franco_kay__spoor_land_grabs_in_latam__caribbean_no
v_2011.pdf>.
531
Klaus Deininger et al, ‘Rising Global Interest in Farmland: Can It Yield Sustainable and Equitable
Benefits?’ (The World Bank, 2011).
532
Maria Cristina Rulli, Antonio Saviori and Paolo D’Odorico, ‘Global Land and Water Grabbing’
[2013] Proceedings of the National Academy of Sciences 201213163, 892.
Uruguay, 17.2 per cent in the Philippines, and 6.9 per cent in Sierra Leone had been
subject to LSALIs.

4.5.1.2 Impact of large-scale agricultural land investments

The debates regarding LSALIs reflect those that have surrounded foreign direct
investment (FDI) for decades. A significant body of work considers whether FDIs on
average have positive spill over effects and the findings have been conflicting.533
Overall, it seems that FDI may help increase economic growth in host countries, such
growth could contribute to food security and the progressive realisation of related
human rights. However, much depends on the circumstances and governance
arrangements within the host country and the applicable international investment
agreement, as these factors affect how the benefits that flow from the investment are
distributed.

In a report for the World Bank, Deininger et al identified four main channels
through which LSALIs can contribute to food security based on an analysis of data
from six countries.534 Similar to other FDIs, LSALIs have the potential to generate
employment, improve social infrastructure (eg compensation payments to
community trust funds), advance access to markets and technologies for rural
communities (likely through out grower schemes), and raise tax revenue. Given that
increased investment in agriculture in rural communities is vital for a RBA to FS,
LSALIs could be a powerful tool to improve food security. Yet, a range of human
rights violations have stemmed from LSALIs.

A recent study by Messerli et al used a sample of 139 land deals and analysed
the contexts in which they were operating.535 They found that 35 per cent of LSALIs
occurred over land that was densely populated, easily accessible croplands, and
around 26 per cent of LSALIs concerned lands that were moderately populated. The
suggestion then is that at least a significant proportion of LSALIs disrupt rural

533
Theodore Moran, ‘Foreign Direct Investment and Development: A Reassessment of the Evidence
and Policy Implications’ (OECD, 1999).Magnus Blomström and Ari Kokko, ‘Multinational
Corporations and Spillovers’ (1998) 12 Journal of Economic Surveys 247. John Dunning, Global
Capitalism, FDI and Competitiveness (Edward Elgar Publishing, 2002) 9. Lyuba Zarsky, ‘Havens,
Halos and Spaghetti: Untangling the Evidence About the Relationship Between Foreign Investment
and the Environment’ (OECD Environment Directorate, 1999)
<http://oldsite.nautilus.org/archives/papers/enviro/zarsky_oecdfdi.html>.
534
Deininger et al, above n 526, 71.
535
Peter Messerli et al, ‘The Geography of Large-Scale Land Acquisitions: Analysing Socio-
Ecological Patterns of Target Contexts in the Global South’ (2014) 53 Applied Geography 449.
communities and small-scale farming systems, and therefore, adversely affect food
security. Moreover, deals that interfere with people’s access to productive resources
for subsistence farming purposes are likely to be a violation of the human right to
food by both the host state and the home state of the investor.536

Other common issues caused by LSALIs include: (a) the displacement of

small-scale farmers, rural communities and indigenous peoples who lack tenure
security; (b) unsustainable land use changes connected with deforestation and an
uptake of industrial agricultural models; and (c) the loss of community access to land
for subsistence farming purposes without the investors sharing benefits or providing
compensation.537 Other concerns relate to the lack of transparency surrounding
LSALI deals, which evidences that governments and investors are not incorporating
basic human rights principles into such dealings.538

The investment model and contractual arrangements surrounding a LSALI

contribute to whether a LSALI will be compatible with a RBA to FS. Contract
farming, where the investment entity contracts small-scale farmers to plant crops, is a
model that can be more beneficial to communities than company-managed
plantations where one company controls the entire farming operation.539 This is
because contract-farming models commonly generate more income, empowerment

536
ICESCR art 11(2)(a) provides that state parties are required to take, individually and through
international co-operation, the measures that are needed to ‘To improve methods of production,
conservation and distribution of food by making full use of technical and scientific knowledge, by
disseminating knowledge of the principles of nutrition and by developing or reforming agrarian
systems in such a way as to achieve the most efficient development and utilization of natural
resources’.
537
This list is a summary of the most common allegations or issues raised in the literature. See, eg,
Elizabeth Alice Clements and Bernardo Mançano Fernandes, ‘Land Grabbing, Agribusiness and the
Peasantry in Brazil and Mozambique’ (2013) 2 Agrarian South: Journal of Political Economy 41;
Saturnino M Borras et al, ‘Land Grabbing in Latin America and the Caribbean’ (2012) 39 Journal of
Peasant Studies 845; David Hallam, ‘International Investment in Developing Country Agriculture—
issues and Challenges’ (2011) 3 Food Security 91.
538
See, eg, Kerstin Nolte and Lieske Voget-Kleschin, ‘Consultation in Large-Scale Land
Acquisitions: An Evaluation of Three Cases in Mali’ (2014) 64 World Development 654.
539
Derek Byerlee, William A Masters and Daniel Robinson, ‘Investment in Land Development: An
Overlooked Dimension of the Land Grab Discourse on Frontier Agriculture’ in Agro-holdings and
other types of mega-farming operations (2015)
<http://www.iamo.de/fileadmin/user_upload/Bilder_und_Dokumente/06-veranstaltungen/icae-
mailand_2015/ByerleeMastersRobinson_LandDevelopment_PreconferenceAtICAE2015.pdf>.
and access to markets than large plantations, which can improve the food security
status of farmers in rural areas.540

At the same time, LSALIs that lead to contract farming do not necessarily align
with a RBA to FS. For instance, McCarthey studied four villages in Indonesia where
land had been sold to investors as part of a LSALI.541 McCarthey found that in some
situations contract-farming arrangements resulting from LSALIs were beneficial for
local communities in terms of poverty alleviation (economic access to food).542 In
other villages, smallholders were engaged on severely disadvantageous terms (eg
casual, seasonal workers), and so not only had they lost their village lands by selling
it to the investors, but they also had not experienced the expected improved standard
of living including food security from the deal.543 Cotula made analogous findings to
these adverse outcomes in his analysis of the contracts for twelve LSALIs. He found
that African states granted long-term property rights over land and water for a small
amount of revenue from the investors and/or loose promises of jobs for local
communities.544

4.5.1.3 Political and policy debates

There are two main ways to view and respond to LSALIs. From the first
perspective, LSALIs that are effectively regulated can be a win-win for investors and
rural farming communities in developing countries.545 In reflection of this
perspective, Hallam explained that:

The benefits will not flow if investment results in the creation of an enclave
of advanced agriculture in a dualistic system with traditional smallholder
agriculture and which smallholders cannot emulate. The necessary

540
Note though that LSALIs involving large-scale, company-managed plantation schemes are more
common than LSALIs that involve land division for contract farming. Cotula et al, above n 522, 86;
Borras Jr et al, above n 525, 15.
541
John F McCarthy, ‘Processes of Inclusion and Adverse Incorporation: Oil Palm and Agrarian
Change in Sumatra, Indonesia’ (2010) 37 The Journal of Peasant Studies 821.
542
Factors that contributed to this outcome were the transparency of the deal, the amount of money
received for the village lands, government oversight, access to information, the pre-existing land
tenure security, means to hold village leaders accountable, geographic location, cultural factors, etc.
543
McCarthy, above n 536, 827.
544
Lorenzo Cotula, Land Deals in Africa: What Is in the Contracts? (IIED, 2011) 26–28.
545
Stanley D Metzger, ‘Property in International Law’ (1964) 50 Virginia Law Review 594, 595.
 conditions for positive spill over benefits may often not be present - in which
case policy interventions are needed to create them.546

In other words, without effective governance arrangements, LSALIs aggravate

food insecurity and the marginalisation of food insecure groups, but LSALIs can
align with a RBA to FS provided the investments are regulated in a way that is
consistent with such an approach.

Understandably, this middle-ground approach is favoured by international

organisations, including the FAO and the World Bank. For instance, the World Bank
has acknowledged that sustainable benefits have not generally materialised from
LSALIs, yet it argues that there is still potential for large-scale land acquisitions to
have positive community and environmental impacts within an effective regulatory
framework.547

The second way to view and respond to LSALIs stems from scholars and
NGOs. Essentially, they see LSALIs as fundamentally inconsistent with an RBA to
FS.548 At the crux of this perspective is the lost opportunity to facilitate tenure
security for marginalised groups, as LSALIs result in more industrial, less labour-
intensive uses that have little poverty-alleviating or positive environmental impacts.
From this perspective, any large-scale investment by states or private investors in
farmland worldwide, even if regulated, will not lead to a win-win benefiting
investors and communities equally and alike. De Schutter explained that:

Current attempts to ‘regulate’ large-scale investment in farmland are

misleading insofar as they presuppose that such investments can be desirable
under certain conditions…by making such a presupposition, we
underestimate the opportunity costs involved in giving away farmland…to
promote a type of farming that will have much less powerful poverty

546
Hallam, above n 532, 94–95.
547
Deininger et al, above n 526, 71.
548
See, e.g., Onur Ulas Ince, ‘Primitive Accumulation, New Enclosures, and Global Land Grabs: A
Theoretical Intervention’ (2014) 79 Rural Sociology 104; Clements and Fernandes, above n 532;
Saturnino Borras Jr. and Jennifer C Franco, ‘From Threat to Opportunity? Problems with a “Code of
Conduct” for Land Grabbing’ (2010) 13 Yale Human Rights & Development Law Journal 507; Patel,
‘Food Sovereignty’, above n 249; Organisation: What Is La Via Campesina?, above n 200.
 reducing impacts than if access to land and water were democratized for the
local farming communities. 549

Put differently, the land rights and land-use changes that form part of LSALIs
do not enable a RBA to FS. They need not interfere with food security and human
rights, but they do not facilitate such outcomes. This perspective instead promotes
the redistribution of land, systems to increase land tenure security and equitable
access to land for agroecological farming practices.

Given that LSALIs have the potential to increase investment in rural areas in
developing countries and improve market access, it is useful to explore the
possibilities of win-win scenarios in particular contexts.550 Where a LSALI on paper
is unable to equitably or adequately contribute to rural development in food insecure
areas, for instance where a LSALI is a large industrial plantation with low levels of
workers required, then such LSALIs should be prohibited by home and host states
and international law.

If a LSALI on paper appears to be consistent with improving the food security

status of low-income rural communities, but in reality aggravates inequalities, then a
state should be able to expropriate the land. In such situations, the investor should be
required to pay compensation to the community and for the rehabilitation of the
land.551 This is consistent with criterion 1 (protection against interferences with
human rights) and criterion 2 (special protection for vulnerable groups) of a RBA to
FS. Where an LSALI on paper and in practice facilitates a RBA to FS, which is more
likely where investor’s sub-divide the land and enter fair contractual arrangements
with contract farmers, than it should continue subject to domestic laws.

Regardless of the context, all states should conduct human rights and
environmental impact assessments before transferring large lots of land to investors
(consistent with criterion 3). As part of such assessments, the potential poverty-
alleviating impacts of subdividing and redistributing the land in question should be
determined. Where land redistribution would be more beneficial for local food

549
Olivier De Schutter, How Not to Think about Land-Grabbing (12 January 2011) International Land
Coalition 250 <http://www.commercialpressuresonland.org/opinion-pieces/how-not-think-about-land-
grabbing>.
550
As explained in Chapters 2 and 3, investment in agricultural research and development in food
insecure rural communities is critical for advancing food security and connected human rights.
551
Investors should provide a bond or security deposit up front for rehabilitation purposes.
security than a LSALI, the investment deal should not be finalised. Local NGOs
could be helpful in carrying out such assessments.

4.5.2 International Regulation of Large-Scale Land Investments involving

Foreign Actors
This section identifies the public international regulatory framework that
directly relates to LSALIs and compares it against an RBA to FS.552 The
international regulatory framework comprises of international foreign investment
laws, international humanitarian law and the following three non-binding
instruments: the Principles for Responsible Agricultural Investment, the Voluntary
Guidelines on the Responsible Governance of Tenure and the Principles for
Responsible Investment in Agriculture and Food Systems.

4.5.2.1 International foreign investment law

There is no multilateral framework for FDIs. However, a range of multilateral
treaties, regional or bilateral trade agreements and even customary international laws
regulate FDIs. Investor-state dispute settlement mechanisms are included within
these sources of investment law. The International Centre for Settlement of
Investment Disputes, developed by the World Bank, is the most established
international investment dispute settlement body. The arbitral tribunal applies either
the laws that the parties agree to or the laws of the state party, as well as rules of
international investment law.553

Regardless of the source, the focal point of international investment law is

investment promotion and protection. In order to attract foreign investment, most
states have, by entering into bilateral or regional agreements, slowly confined their
ability to directly or indirectly expropriate investor property and limited their ability
to place performance obligations on investors. This reflects a divide between
international economic laws underpinned by neoliberal ideologies and international
human rights law. The former regime protects investors from state interference and

552
The exception to this is the Clean Development Mechanism under the United Nations climate
change regime, but this is discussed in the next chapter where the climate change regime can be more
thoroughly analysed.
553
Convention on the Settlement of Investment Disputes Between States and Nationals of Other States,
adopted 18 March 1965, 17 UST 1270, TIAS 6090, 575 UNTS 159 (entered into force 14 October
1966) art 40.
the latter regime requires states take actions to protect vulnerable groups from third-
party interference.

States have the sovereign right to exploit the natural resources within their
territory but this right can be restricted in the case of resources subject to foreign
investment. The 1962 Declaration on Permanent Sovereignty over Natural Resources
(Resolution 1803) affirms that states have an ‘[i]nalienable right…to dispose of their
natural wealth and resources in accordance with their national interests’.554 Again
aligning with the theoretical underpinnings of state sovereignty, Resolution 1803
affirms that sovereign rights override the legal rights of others. Despite this, the
expropriation of foreign property by a state must ‘[b]e based on grounds or reasons
of public utility, security or national interest’ and the foreign owner must be paid
‘appropriate compensation’ by the state in question.555

In terms of LSALIs, the sovereign rights of states override the property rights
held by foreign investors. Establishing the grounds for such an expropriation in the
case of LSALIs is unproblematic given the size of the land lots involved and the
importance of agricultural land for security and national interests.556 What may be
more difficult, especially for a developing state, is the obligation to provide
appropriate compensation.

Generally, the approach to determining the appropriate compensation for

expropriation has been to put the foreign investor in the position they would have
been in had the expropriation not occurred.557 The formula used by investment
arbitrators to determine ‘appropriate compensation’ varies, but commonly

554
United Nations Declaration on Permanent Sovereignty over Natural Resources, GA Res. 1803
(XVII) / 17 UN GAOR Supp. (No.17) at 15 / UN Doc. A/5217, 17th sess, 1194th plen mtg (14
December 1962) Preamble.
555
Ibid art 4.
556
Investment arbitration tribunals have previously accepted that land expropriation for the purposes
of redistribution are in the national interest, but the tribunals have upheld the obligation on host states
to provide compensation. See, Marguerite De Sabla (United States) v. Panama (1933) V1 RIAA 358,
366; Compañía del Desarrollo de Santa Elena, S.A. v. Republic of Costa Rica Case No. ARB/96/1.
557
See, eg, International Institute for the Unification of Private Law, UNIDRIOT Principles of
International Commercial Contracts (2010) art 7.4.2; Sapphire International Petroleums Ltd v
National Iranian Oil Company 35 I.L.R. 136, 186 (1967) where the arbitrator explains that the general
legal rule in relation to damages is to place the party in the same position that they would have been in
if the contract had been carried out.
compensation must be prompt, cover the market value for the expropriated land and
be in the currency required.558

Given that investors are buying large lots of land under the assumption that the
value of land will increase, developing states may not be able to afford to expropriate
land even if their governments wanted to do so, and even if it was in the interests of
human rights and food security. Thus, the international regulatory framework for
investment appears to be infringing on the ability of states to regulate for a RBA to
FS, which is inconsistent with criterion 1 of a RBA to FS. Adding to this point,
critiques of investment arbitration tribunals suggest that such dispute resolution
processes are inconsistent with criterion 3 of a RBA to FS. A fairly large body of
work argues that international investment tribunals lack transparency, objectivity and
the ability to evolve to changing circumstances and other international law
regimes.559

Restrictions on performance obligations in international investment law is

another way in which investment treaties may impinge on the ability of states to
pursue a RBA to FS. Performance requirements include, for instance, the
requirement that an investor employ a certain amount of local people, buy local
goods or provide certain agricultural inputs.

The World Trade Organization (WTO) Agreement on Trade-Relate Investment

Measures (TRIMs) prohibits performance requirements that discriminate between
local and overseas products or create restrictions on the import or export of products

558
This formula is referred to as the Hull formula, and resulted from the correspondence between US
and Mexican representatives in a dispute during the late 1930s over the expropriation of US citizen
owned agricultural land in Mexico. See, Sornarajah, above n 520, ch 2; Tali Levy, ‘NAFTA’s
Provision for Compensation in the Event of Expropriation: A Reassessment of the Prompt, Adequate
and Effective Standard’ [1997] Stanford Journal of International Law 423. Another main method for
determining ‘appropriate compensation’ is the Calvo Doctrine, which holds that domestic laws and
tribunals determine compensation for expropriation as it would if it was a domestic actor whose land
was expropriated. Much depends on the context, such as the negotiations between the government and
the investor and the regulatory arrangements between host state and the home state (eg if they are
signatories to a bilateral or regional trade agreement that defines ‘appropriate compensation’). A state
entering into an agreement with an investor regarding land could try to incorporate terms that required
domestic tribunals and domestic law to determine appropriate compensation. Investors are likely to
prefer terms that require the compensation payments within a reasonable time, with interest and at
market value.
559
See, eg, Frank Garcia et al (2015) ‘Reforming the International Investment Regime: Lessons from
International Trade Law’ 18 Journal of International Economic Law 861; Julie Maupin (2014) ‘Public
and Private in International Investment Law: An Integrated Systems Approach’ 54(2) Virgina Journal
of International Law 365.
by an investor.560 For instance, a state would breach TRIMs if it restricted a foreign
investor’s ability to export food or biofuel products by requiring the sale of a certain
amount of the commodities produced in domestic markets. TRIMs are not overly or
directly restrictive on the performance requirements that may help LSALIs better
contribute to a RBA to FS. Regardless, an increasing number of bilateral and
regional investment agreements include prohibitions on performance requirements,
such a trend may be inconsistent with a RBA to FS.561

Overall, international investment law is not an enabling framework for a RBA

to FS because it protects the foreign investor against state interference in ways that
can hinder the ability of states to protect communities against investment-related
human rights violations. Additionally, international investment agreements are able
to limit the benefits that could flow from an LSALI to rural communities, which is
inconsistent with the requirement for an enabling international framework under
criterion 3 of a RBA to FS. This represents a lost opportunity, as international
investment law could be a powerful mechanism to facilitate the kinds of agricultural
investment required in rural communities to pursue a RBA to FS.

4.5.2.2 International humanitarian law

The threat of International Criminal Court (ICC) intervention could be in a
position to influence LSALIs in a way that promotes an RBA to FS. In particular,
intervention by the ICC in particular land deals could facilitate criterion 2 of a RBA
to FS, which requires special measures and protections for marginalised groups.
Further, the ICC could counteract the fact that currently the only tribunals that deal
with LSALIs are those designed to protect foreign investors’ rights.

The ICC has subject-matter jurisdiction over crimes against humanity. An

LSALI or a series of LSALIs may constitute a crime against humanity where it
involves: acts of ‘deportation or forcible transfer of population’ or ‘persecution of an
identifiable group’ such as ‘a specific community of Indigenous peoples’ or ‘other

560
Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April
1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1A ‘Agreement on Trade-Related
Investment Measures (TRIMs).
561
See, Suzy H Nikiema, ‘Performance Requirements in Investment Treaties’ (International Institute
for Sustainable Development, December 2015) 7–11
<http://www.iisd.org/sites/default/files/publications/best-practices-performance-requirements-
investment-treaties-en.pdf> where the trend towards prohibiting performance requirements in bilateral
and regional trade agreements was discussed.
inhumane acts that intentionally cause great suffering or injury to body or to mental
or physical health’.562 In such cases, the ICC may have jurisdiction over those that
directly committed the crime (eg those that hired militants to forcibly remove people)
and those that aided, abetted or otherwise assisted in the commission of the crime (eg
specific state actors and investors).

However, the ICC will not have jurisdiction unless the accused is a citizen of a
state that is party to the ICC or the crime took place in a state that was party to the
ICC or otherwise accepted the court’s jurisdiction. Another condition that may be
difficult to meet in light of the sometimes gradual and intergenerational harm of
LSALIs is that the alleged crimes must be a ‘most serious crimes of concern to the
international community’.563

Despite the difficulties of establishing that the ICC has jurisdiction, a

notification was sent in 2014 to the prosecutor of the ICC seeking further
investigation into a specific group of LSALIs in Cambodia. The victims who filed
the notice are being represented by a for-profit, UK law firm called “Global
Diligence”, and the case is against the ruling elite of Cambodia.564 While foreign
entities are involved in the LSALIs, the focus is instead on the senior members of the
government and the security forces and government-connect business leaders. The
notification states that:

The crimes flowing from land grabbing form the backbone of this
Communication. Capitalising on widespread tenure insecurity resulting from
decades of civil war, the Ruling Elite have illegally seized and reallocated
millions of hectares of valuable land from poor Cambodians for exploitation
or speculation by its members and foreign investors…565

The harms alleged in the notification include forced evictions, inadequate

compensation, food insecurity and substandard resettlement camps that are

562
Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS
90 (entered into force 1 July 2002) arts 5(b), 7(d), (h), (k).
563
Ibid art 5.
564
Global Diligence, ‘The Commission of Crimes Against Humanity in Cambodia July 2002 to
Present’, Communication under Article 15 of the Rome Statute to the International Criminal Court (7
October 2014) <https://www.fidh.org/en/region/asia/cambodia/16176-cambodia-icc-preliminary-
examination-requested-into-crimes-stemming-from>.
565
Ibid [6].
responsible for various human rights breaches, including the right to food.566 It is
estimated that these harms have adversely affected more than 770 000 people from
2000-2014.567 Further, the notification alleges that the LSALIs have
disproportionately affected the indigenous minority, as more than half of the
indigenous population in Cambodia have been forcibly removed from their
communal and ancestral land.568 This development indicates that a series of LSALIs
that involve grave human rights breaches could fulfil the requirements for crimes
against humanity and ICC intervention. At the time of writing, the ICC has not
confirmed whether it will begin the preliminary investigation that can follow such
notifications.

4.5.3 Non-Binding Instruments

4.5.3.1 Principles for Responsible Agricultural Investment that Respects Rights,
Livelihoods and Resources
In 2010, the FAO, World Bank, the IFAD and the United Nations Conference
on Trade and Development (UNCTAD) published the Principles for Responsible
Agricultural Investment that Respects Rights, Livelihoods and Resources (PRAI).569
These principles were a response to the rapid increase in LSALIs since 2008, and
were based on the view that private initiatives alone were an inadequate response
given the magnitude of and risks involved in LSALIs.570 Even though it is presented
as a research report, the objective of the PRAI is to:

…ensure that investments in agriculture realize their significant potential for

making a positive contribution to…the stability and security of food
production, the well-being of rural communities and improvement in the
environmental footprint of agricultural activities.571

Despite these significant objectives, the principles are not designed to restrict
the behaviour of international investors or the decisions of governments. This is not

566
Ibid [5]-[8].
567
Ibid [7].
568
Ibid [8].
569
Principles for Responsible Agricultural Investment that Respects Rights, Livelihoods and
Resources (Discussion Note, FAO, IFAD, the UNCTAD Secretariat and the World Bank Group, 2010)
<http://www.fao.org/fileadmin/templates/est/INTERNATIONAL-
TRADE/FDIs/RAI_Principles_Synoptic.pdf> (PRAI).
570
Ibid 1-2.
571
‘Inter-Agency Working Group on the Food Security Pillar of the G20 Multi-Year Action Plan on
Development: “Options for Promoting Responsible Investment in Agriculture”’ (Report to the High-
Level Development Working Group, 3 June 2011) 4.
consistent with a RBA to FS, which holds that the actions of third-party actors and
governments should be restrained where required for the fulfilment of human rights
(criterion 1). Instead, the PRAI provides a framework for domestic regulations,
international investment agreements, corporate social responsibility programs and
individual investor dealings.572

The seven principles in the PRAI are as follows:

1. Customary or statutory land rights and rights to associated natural

resources should be respected by the state and the investors. Companies
should, among other things, negotiate with land holders/users and provide
prompt payment for acquired rights;

2. Investments should strengthen food security (eg provide synthetic inputs

and jobs), and any adverse effects of an investment should be addressed by
governments by providing access to food and creating opportunities to
raise income;

3. Transparency and good governance are critical and require public access to
information related to the terms of the investment and better
implementation of laws;

4. Recorded consultations during preparation for an LSALI are required with

materially affected groups and enabled by the domestic regulatory
framework;

5. Investors should ensure that projects follow domestic laws, align with
private initiatives and standards and aim to create benefits for the affected
community and host country;

6. Investments should not disproportionately benefit specific groups but

instead focus on distributing benefits equitably, especially to vulnerable
groups. Safeguards against negative impacts of LSALIs need to be
incorporated into legal frameworks and investor plans and agreements;

7. Independent environmental impact analyses and environmental

management plans need to be carried out prior to approval.

572
PRAI 2.
 Arguably, the seven principles that comprise of the PRAI do not contain any
provisions that financial actors following socially responsible investment policies
would not already be practising.573 Thus, the necessity for the PRAI has not been
established. Regardless, most of the PRAI’s provisions are broadly consistent with
criterion 3 of a RBA to FS because they reflect human rights principles relating to
transparency and respect for the rule of law. Further, provision 6 is compatible with
criterion 2 of a RBA to FS as it promotes the sharing of benefits with vulnerable
groups.

Regardless of this general compatibility, the PRAI approaches LSALIs with the
presumption that they are inherently beneficial to stakeholders and thus the negative
impacts need only be mitigated or avoided.574 As a result, the design of the PRAI is
utilitarian in nature, as it accepts that some human rights violations may occur in a
LSALI, but these are permissible due to the greater good that will come to
communities from the economic development. For instance, provision 2 states that
‘Whenever there are potential effects on any aspect of food security, policy-makers
should make provisions for the local or directly affected populations…’.575 The PRAI
adds that a strategy for overcoming issues of productive farm land being converted
into non-food crops under a LSALI is to reclaim degraded lands or land not
previously used for agriculture.576

Under human rights law, a government should protect the food security status
of people from being adversely interfered with by third-party actors. Under the PRAI,
the requirement that governments provide food aid when a LSALI has caused food
insecurity or to relocate farming communities to degraded lands or non-agricultural
lands means that the government has already violated its human rights obligations to
protect. The PRAI’s approach of surrendering an individual or a minority’s rights

573
For an example, see, Principles for Responsible Investment, The Six Principles for Responsible
Investment (2006) < https://www.unpri.org/about>.
574
Narula Smita, ‘The Global Land Rush: Markets, Rights and the Politics of Food’ (2013) 49
Stanford Journal of International Law 101.
575
PRAI 6.
576
PRAI 7 where it provides that:
[c]oncerns about negative impacts on food security should be allayed as far as possible
through adjustments in design. For example, if diversion of productive crop land away from
food production is seen as an issue, remediation measures to adopt might include reclaiming
degraded lands, choosing land that has not been previously been used for agriculture yet is
not environmentally sensitive, or compensating by improving the productivity on other food
producing areas through soil amendments, better technology or intensification’.
(such as the right to food) in favour of collective interests is not consistent with
human rights law. Recalling criterion 1 of a RBA to FS, international regulatory
frameworks should protect against interferences with the realisation of human rights
stemming from the activities of non-state actors.

The PRAI explains that LSALIs and other agricultural investments should
improve the food security status of community stakeholders. Accordingly, the PRAI
encourages investors and states to improve food security by giving affected parties or
community stakeholders inputs and technologies that will increase their yields in the
short-term, linking them with overseas markets or generating downstream
employment.577

Although these approaches can be effective depending on how they are carried
out, food security is generally going to be best facilitated through scaling up
agroecological practices and land distribution to marginalised groups or individuals
and especially women (criterion 1 and 4 of a RBA to FS).578 Providing synthetic
inputs could be useful where the required training and protective equipment is
provided, but it also has a number of environmental and public health issues attached
that can undermine food security.579 Additionally, the links to overseas markets can
be helpful for, among other things, increasing economic access to food, but it
depends on the nature of these market access opportunities. For instance, the benefits
of market access for food security will be limited where local producers can only
provide raw agricultural products (which are commonly sold for low prices in
comparison to value-added foods).580

The PRAI was endorsed by the G20 in 2010.581 Ultimately though, the
responses to the PRAI have been overwhelming negative, and thus its social
legitimacy has remained low. An estimated 130 organisations, generally

577
Ibid where the PRAI states ‘[a]ttention should be given to improving the people‘s ability to
purchase food by making inputs and technology more available so that yields rise, by creating a better
local market, or by better linking them to more profitable distant markets, or by generating
downstream employment in packing sheds, processing operations, or ancillary services such as
handling, transport or marketing.’
578
This is discussed further in Chapter 8 on pesticides.
579
Olivier De Schutter, Agroecology and the Right to Food, 16th Sess, UN Doc A/HRC/16/49 (8
March 2011). See also Chapters 2 and 3.
580
International trade will be discussed in further depth in Chapter 9.
581
Phoebe Stephens, ‘The Principles of Responsible Agricultural Investment’ (2013) 10
Globalizations 187, 189.
representative alliances of farmers, have condemned the PRAI.582 Furthermore, the
former Special Rapporteur on the Right to Food explained that the PRAI is ‘well-
intended [but] woefully inadequate’ and stated:

It is regrettable that, instead of rising to the challenge of developing

agriculture in a way that is more socially and environmentally sustainable,
we act as if accelerating the destruction of the global peasantry could be
accomplished responsibly.583

Along with ideological differences, a significant cause for the lack of support
stemmed from the PRAI’s lack of consultation with developing countries and
community stakeholders during its formulation.584 As a result of this, and combined
with intense political backlash regarding its content by civil society, the PRAI failed
to be endorsed by the Committee on Food Security.585 In addition, the main
implementation mechanisms the PRAI has are performance reports published by the
World Bank.586 This lack of endorsement, coupled with weak implementation
mechanisms, has arguably undermined the ability of the PRAI to influence actions of
states and investors.

4.5.3.2 Voluntary Guidelines on the Responsible Governance of Tenure of Land,

Fisheries and Forests
(a) Overview

The Voluntary Guidelines on the Responsible Governance of Tenure of Land,

Fisheries and Forests (the Guidelines) were created through the FAO and

582
GRAIN, The Great Food Robbery: How Corporations Control Food, Grab Land and Destroy the
Climate (Fahamu/Pambazuka, 2012) 160.
583
Olivier De Schutter, Responsibly Destroying the World’s Peasantry (4 June 2010) Project
Syndicate <http://www.project-syndicate.org/commentary/responsibly-destroying-the-world-s-
peasantry>.
584
‘Why We Oppose the Principles for Responsible Agricultural Investment’ (Public Statement,
FIAN International, Focus on the Global South, La Via Campesina Social Network for Justice and
Human Rights, October 2010) 8.
585
The decision to not endorse the PRAI is contained in ‘Policy Roundtable Land Tenure and
International Investment in Agriculture’ (CFS:2010/7, Committee on World Food Security, 2010) 17,
1. In fact, when the CFS decided to not endorse the PRAI, the Committee decided to start a process of
developing new principles through an ‘inclusive progress of consideration’ with a ‘view to preparing a
set of practical principles and broad legitimacy and ownership by all stakeholders’. These principles
will be designed to work alongside the Voluntary Guidelines on Tenure. See, eg, ‘Process of
Consultation on Principles for Responsible Agricultural Investment (RAI) within the Committee on
World Food Security’ (CFS:2011/Inf.16 Rev.1, Committee on World Food Security, October 2011)
15.
586
PRAI 4.
encouraged by the CFS after it did not endorse the PRAI in 2010.587 From the outset,
the Guidelines were based on multi-stakeholder and multi-format consultation
processes, including regional consultations in 133 states. After three rounds of
negotiations from 2011-2012, the final guidelines were approved by 96 FAO
member states. Likewise, the CFS endorsed the Guidelines, thus providing the
Guidelines with a higher level of legitimacy and political influence. From its
conception then, this instrument was more influential and more aligned with an RBA
to FS as a result of its inclusive consultation process.588

The Guidelines sets out principles and internationally accepted standards for
responsible governance of tenure with the primary goal being progress towards food
security and the right to food. The instrument is divided into seven parts dealing
with: general guiding principles, legal recognition and allocation of tenure rights and
duties, transfers and other changes to tenure rights and duties, administration of
tenure, responses to climate change and emergencies, promotion and
implementation, and monitoring and evaluation.

The key focus of the Guidelines is to provide a framework for states to use
when developing their own policies and laws that shape land tenure.589 It deals with
both host states and states involved in international investments. Supplementary
documents provide more specific information on the resources and materials needed
for monitoring and implementation. Nevertheless, the instrument is intended to be
used by a range of non-state parties including: judicial authorities, local
governments, indigenous peoples, private sector and organisations of farmers and
small-scale producers.590 Because it is designed to be used by more entities then the
state, the Guidelines may have broader implementation and momentum than merely
a state-based instrument.

587
Ibid.
588
In this context, good governance and human rights are considered mutually reinforcing.
589
Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests,
endorsed by the Committee on World Food Security, 38th sess (11 May 2012) 182 (VGGT).
590
VGGT [2.3].
 (b) Substantive provisions and a Rights‐Based Approach to Food
Security

The Guidelines refers to and is explicitly based on the obligations and duties
states have under international human rights instruments. In line with criterion 1 of a
RBA to FS, the interrelationship between land tenure, food security and human rights
is explicitly acknowledged in the overarching goal of the instrument which is to
achieve ‘[f]ood security for all and to support the progressive realization of the right
to adequate food in the context of national food security’.591 Subsequently, paragraph
5.2 provides that: ‘States should ensure that policy, legal and organizational
frameworks for tenure governance are consistent with their existing obligations
under national and international law’. In the more substantive parts of the Guidelines,
a rights-based approach remains evident as the guidelines are phrased in terms of
states’ obligations to respect, protect and fulfil human rights,592 and human rights
principles are explicitly incorporated throughout.593 Unlike the PRAI, the human
rights instruments relevant to indigenous land rights (discussed above) are
reinforced.594 Surprisingly though, no reference to CEDAW was included in the
Guidelines.

Furthering the RBA to FS being taken, the Guidelines incorporate sustainable

development and intergenerational equity into its guidelines. For example, paragraph
4.3 provides ‘Tenure rights are also balanced by duties. All should respect the long-
term protection and sustainable use of land…’. Unlike the PRAI, the Guidelines
acknowledge that smallholder producers in developing countries are the major
contributors to food security and environmental resilience, and so the Guidelines
provide that states should ‘[s]upport investments by smallholders as well as public
and private smallholder-sensitive investments’.595 This represents a more diversified
approach to food security and development then that represented in the PRAI, as it

591
VGGT iv.
592
For examples of states obligations to respect, see eg, [3.1], [9.11], and [4.8]. For examples of states
obligations to protect, see eg, principles [3.1(2)], [5.3], [6.3]. For examples of how states can facilitate
human rights, see [5].
593
For examples of ‘participation’ see, [4.10], [5.5], [9.2], [9.6]; For examples of ‘accountability’ see,
[6.9], [8.4], [11.5], [17.1]; For examples of ‘non-discrimination’ see, [4.6], [5.3], [21.1]. For examples
of ‘transparency’ see, [5.5], [5.8], [11.4], [11.7], [18.5], [19.3]. For examples of ‘human dignity’ see,
[5.4]. For examples of ‘empowerment’ see, [9.11], [3B- 3]. For examples of ‘rule of law’ see, [3B-7],
[15.3].
594
VGGT [9.3].
595
Ibid [12.2].
notes that other kinds of investments, not just LSALIs, are equally critical. Such an
approach is compatible with criterion 1 and 4 of a RBA to FS, as it positions the
Guidelines as an enabling instrument for a fairer distribution of land and diversified
farming systems.

In terms of implementation, the Guidelines are more comprehensive than the

PRAI. Chapter 7 places the responsibility on states by encouraging them to monitor
and evaluate the implementation and impact of the Guidelines against whether it has
improved food security, human rights and sustainable development.596 The CFS is
given the role of monitoring the implementation and evaluating impact at an
international level, including by providing a forum for stakeholders to share
experiences and assessments.597 At the time of writing, there is no empirical or other
evidence of explicit implementation of the Guidelines, but there is evidence that the
Guidelines are gaining traction within NGO activities (eg Oxfam), other international
institutions (eg World Bank), agricultural corporations (eg Coca Cola) and within
states.598

(c) Responses and Critiques

While more widely accepted, the Guidelines have been critiqued for their lack
of legal enforceability. The instrument has been considered inadequate protection
against violations of indigenous peoples’ land rights and for addressing ingrained
gender equality issues concerning land.599 It is true that the Guidelines do not carry

596
VGGT [26.2]-[26.3].
597
VGGT [26.4].
598
At the time of writing, one journal article discussed implementation and summarised barriers to
overcome, Svein Jentoft, ‘Walking the Talk: Implementing the International Voluntary Guidelines for
Securing Sustainable Small-Scale Fisheries’ (2014) 13 Maritime Studies 16. For examples of
corporate activities, see, Cola Giants Back Voluntary Guidelines on Land Tenure FAO
<http://www.fao.org/news/story/en/item/224619/icode/>; For examples from state activities, see eg,
Newsletter: Voluntary Guidelines on Tenure and Governance Initiative (July 2015)
<http://www.fao.org/nr/tenure/whats-new/july-2015-newsletter/en/>; ‘Gov’t Takes Leadership of
“Voluntary Guidelines on the Governance of Tenure”’ <http://slconcordtimes.com/govt-takes-
leadership-of-voluntary-guidelines-on-the-governance-of-tenure/>; Operational Guidelines for
Responsible Land-Based Investment (24 March 2015) USAID Land Tenure and Property Rights Portal
<http://usaidlandtenure.net/documents/operational-guidelines-responsible-land-based-investment>;
For evidence of the World Bank facilitating implementation of the VGGT, see, World Bank Group:
Access to Land Is Critical for the Poor (8 April 2013) <http://www.worldbank.org/en/news/press-
release/2013/04/08/world-bank-group-access-to-land-is-critical-for-the-poor>.
599
Suzana Sawyer and Edmund Gomez, ‘Transnational Governmentality and Resource Extraction:
Indigenous Peoples, Multinational Corporations, Multilateral Institutions and the State’ (Identities,
Conflict and Cohesion Programme Paper Number 13, UNRISD/PPICC13/08/2, United Nations
legally binding obligations with third-party oversight. Even if they were legally
binding, the Guidelines would still not provide adequate protection against human
rights violations associated with land rights due to the economic value of land and
the entrenched, structural inequalities. Much more is required (including effective
domestic governance) then a voluntary international instrument to protect, respect
and facilitate human rights related to land and food security.

Because the Guidelines are not legally binding, they were easier to finalise,
contain more ambitious provisions in terms of progressing human rights and are the
first widely-accepted standard for dealing with LSALIs and related issues. The
integration of human rights and environmental law principles into the Guidelines,
and the reiteration of the pre-existing obligations of states under international law,
gives the instrument more legitimacy and allows it to be used as an interpretative
tool.600 For instance, La Via Campesina, a major NGO in the area that represents
small-scale farmers, considers the Guidelines a strategic tool to protect land rights
and food security, and notes that the references to human rights laws adds force to
their claims.601

Another common critique is that the Guidelines do not prohibit LSALIs in

certain contexts or present prohibition as a possibility; rather, the instrument adopts
the approach of regulating LSALIs to reach mutually beneficial outcomes. A RBA to
FS, as reflected in criterion 1, would arguably require a prohibition on certain land
investments where required to protect and respect human rights, including the right
to food. In contrast to the PRAI though, the Guidelines promotes the use of ‘ceilings
on permissible land transactions’ and considers that parliamentary oversight is
needed where transfers exceed a certain scale.602 It also notes that states need to

Research Institute for Social Development, September 2008) 1 where they explain that, ‘...despite the
burgeoning number of international charters, state constitutions and national laws across the world
that assert and protect the rights of indigenous peoples, they often find themselves increasingly
subjected to discrimination, exploitation, dispossession and racism’; Andrea M Collins, ‘Governing
the Global Land Grab: What Role for Gender in the Voluntary Guidelines and the Principles for
Responsible Investment?’ (2014) 11 Globalizations 189 where Collins raised concerns surrounding
the failure of the VGGT to consider local realities, and in particular gender-based inequalities.
600
See also, Philip Seufert, ‘The FAO Voluntary Guidelines on the Responsible Governance of
Tenure of Land, Fisheries and Forests’ (2013) 10 Globalizations 181.
601
‘The Committee on World Food Security (CFS): A New Space for the Food Policies of the World,
Opportunities and Limitations’ (La Via Campesina notebook, number 4, La Via Campesina,
September 2012) 21, 11.
602
VGGT [12.6].
support ‘a range of production and investment models that do not result in the large-
scale transfer of tenure rights to investors’.603 While it does not go as far as a RBA to
FS would require, it certainly promotes alternate, more pro-poor land uses and
regulation of the number and extent of LSALIs.

4.5.3.3 Principles for Responsible Investment in Agriculture and Food Systems

In October 2014, the Principles for Responsible Investment in Agriculture and
Food Systems (the RAI) were unanimously adopted by CFS member states in
October 2014.604 Similar to the previous instruments, these principles were designed
to guide state-based regulations, corporate social responsibility mechanisms and
relevant stakeholder decisions. The difference being that the RAI principles concern
investments that take place along the chain of activities from agriculture to retail.
This makes the RAI more extensive than PRAI and not limited to land tenure like the
Guidelines.

In line with the Guidelines, the RAI was a result of extensive consultations,
with governments, civil society, private sector representatives, NGOSs, academia
and development banks. This approach ensured that the RAI principles have a higher
level of legitimacy than the PRAI, and such an approach aligns with the human rights
principle of participation and transparency (criterion 3 of a RBA to FS).

The RAI aims to ‘[p]romote responsible investment in agriculture and food

systems that contribute to food security and nutrition, thus supporting the progressive
realization of the right to adequate food in the context of national food security’.605
Essentially then, the RAI reflects a RBA to FS and illustrates how such an approach
can be incorporated into international law instruments. In line with the criteria for a
RBA to FS, the RAI emphasises that responsible investment:

 Is predominantly investment in, by and with small-scale producers;

 Does not infringe on human rights of others or have adverse human rights
impacts;

603
Ibid.
604
Committee on World Food Security, Principles for Responsible Investment in Agriculture and
Food Systems, 41st session CFS (15 October 2014) (RAI).
605
RAI [10].
  Safeguards against dispossession of legitimate tenure rights;

 Protects against environmental damage.606

Consequently, the RAI sets clear standards for the kinds of investments that
will be consistent with a RBA to FS.

Similar to the Guidelines, the RAI principles are positioned as an interpretative

tool for existing international obligations. However, unlike the Guidelines, the RAI
states that it should be implemented in a way that is consistent with trade rules, and
specifically, that states should ensure that the actions they take related to responsible
investment in agriculture are consistent with trade agreements.607 This potentially
dilutes the human rights values underpinning the RAI given the limitations
international economic laws, such as the TRIMs, place on the regulatory space of
states in relation to foreign investment.

In terms of substantive provisions, the RAI is a set of 10 principles that

describe the core elements of responsible investments in agriculture and food
systems. In order to be responsible, an investment must contribute to: food security
and nutrition (Principle 1), sustainable and inclusive development (Principle 2),
gender equality (Principle 3), the empowerment of youth (Principle 4). The RAI then
describes, often with specific strategies, how investors should: respect land rights
(Principle 5), sustainably manage the land (Principle 6), equitably share the
commercial and other benefits arising from the use of cultural heritage (including
genetic resources) traditional knowledge (Principle 7), and address public health and
animal welfare issues (Principle 8). The last two principles consider accountability
mechanisms that should be built into domestic laws related to agricultural
investments. These mechanisms include grievance processes, effective and
meaningful consultation practices and the need to monitor and measure impacts.608

Significantly, Principle 10 provides that the responsible investment in

agriculture involves mechanisms that assess the impacts of a potential LSALI prior
to the investment being carried out. It requires that such assessments consider how to
‘prevent and address potential negative impacts, including the option of not

606
VGGT [20].
607
See, eg, VGGT [19], [33]-[34].
608
RAI [29]-[30].
proceeding with the investment’.609 Subsequently, the RAI principles, unlike the
Guidelines, acknowledge that there are some situations where LSALIs would not
adequately contribute to food security and the realisation of connected human rights.
The assessment of impacts, according to the RAI and in line with a RBA to FS, must
focus on the effect of a particular LSALI on marginalised groups in the area.610 Such
an approach is compatible with a RBA to FS, and in particular criterion 1, regarding
protection against interferences with the progressive realisation of human rights, and
criterion 2, concerning the special protections for food insecure groups.

The rest of the document is focused on the specific actions different actors
should take to align with responsible investment in agriculture. In particular,
financing institutions, donors, foundations and funds are encouraged to take
measures to ensure that their support to investors does not form part of a violation of
human rights or interfere with tenure rights.611 By encompassing a range of actors,
the RAI principles are perhaps more likely to be influential, as behind each LSALI is
a complicated network of investors that often include financing institutions and
funds.612

Again, civil society reception of the RAI principles is generally positive

tempered by critiques that the RAI principles are non-binding. The concern is that
without binding instruments, private actors will not have the motivation or the
oversight needed to better regulate LSALIs for food security.613 However, private
actors cannot be the subjects of binding international agreements, and thus legal
reforms regarding the international legal personality of business entities needs to
occur before specific progress can be made on LSALIs.

Legal reforms also need to occur at the domestic level in relation to

monitoring and regulating the actions of investors overseas. Given the limited
capacity of the developing host states countries targeted for LSALI, home states have

609
RAI [30].
610
Ibid.
611
RAI [45].
612
Jennifer Clapp, ‘Financialization, Distance and Global Food Politics’ (2014) 41 The Journal of
Peasant Studies 797.
613
‘Political Brief on the Principles on Responsible Investment in Agriculture and Food Systems’
(Briefing, Transnational Institute, March 2015)
<https://www.tni.org/files/download/political_brief_rai_principles_1.pdf>.
a critical role to play in prohibiting some kinds of LSALIs and regulating others,
despite the jurisdictional issues it may encounter. Positive actions to regulate
overseas activities of investors are compatible with the extraterritorial application of
human rights.

4.6 CONCLUSION

This chapter has shown the connections between land tenure and food security
and emphasised the need for an integrated approach to land tenure and food security
that seeks to progress a range of human rights (eg right to education, health and
work). Although there are human rights treaties that encompass land rights for
indigenous peoples and women, there is a lack of international regulatory
instruments dealing with agricultural land rights. This gap has come to the forefront,
with the trends in LSALIs leading to the recent creation of a number of non-binding
instruments relevant to agricultural land rights and food security.

The approval by states, civil society and private sector actors of the RAI
principles and the Guidelines, as well as the lack of support for the PRAI, has
illustrated how participatory approaches to international policy instruments can
improve the legitimacy and influence of such instruments. Additionally, the RAI and
the Guidelines are an example of how international agreements can align with a RBA
to FS. Their use of human rights norms and environmental law principles in non-
binding instruments shows a growing connection between hard and soft regulatory
instruments, which may be beneficial in terms of promoting compliance and
informing the interpretation of binding obligations.

A RBA to FS requires the facilitation of diversified, smallholder and

agroecological investments (criterion 1 and 4), as well as the prohibition of certain
LSALIs and effective safeguards against negative impacts of LSALIs (criterion 1 and
2). The provisions regarding smallholder investment in the RAI and the Guidelines
seem to reflect this approach, as they emphasise the importance of investment in
smallholder agriculture and seek to better regulate the decision-making by state
actors behind a LSALI. This is critical given that LSALIs are unlikely to be more
beneficial for food security than equally distributed property rights and more secure
land tenure regimes for marginalised groups.
 Overall though, international investment law is binding and investors have the
access and the resources to refer a matter to a tribunal, unlike poor women farmers or
indigenous communities. In order to protect against the negative impacts of LSALIs
on food security and related human rights, more effective international regulation of
investment actors is required. For instance, investment tribunals should be able to
consider the human rights obligations owed by state actors and the broader context
surrounding an investment.
 Soil

5.1 OVERVIEW

This chapter focuses on the regulation of land use and in particular soil use.614 Soil, an
often over-looked natural resource, is one of the main determinants of food security. The
health of agricultural soils largely determines the quantity and nutritional quality of food
produced. Therefore, degraded agricultural soils adversely impact on all aspects of food
security, including the nutritional dimensions. Around 52 per cent of agricultural land is
either moderately or severely affected by soil degradation,615 and 1 to 2.3 million hectares of
agricultural land is becoming too degraded for cultivation.616 This situation is set to worsen in
light of climate change.617 At the same time, the sustainable use of soil is a critical component
in adapting to and mitigating the effects of climate change on agriculture and food security.

In comparison to land tenure and property rights, land use is not a legal concept. Land
use is characterised by ‘[t]he arrangements, activities and inputs people undertake in a certain
land cover type to produce, change or maintain it’.618 However, land tenure security acts as an
incentive to sustainably use and invest in the land including the soils, because with secure
land tenure a person can be assured that they will retrieve the benefits of such activities in the
future.619

In order for international regulations concerning soil to align with a RBA to FS, the
regulatory system must:

 Facilitate soil regeneration;

614
Land tenure security and land use are interrelated. For instance, land tenure security tends to promote soil
conservation practices and soil co. See, eg, Niazi, above n 399.
615
‘Desertification Land Degradation & Drought - Some Global Facts and Figures’ (Fact Sheet, United Nations
Convention to Combat Desertification, 28 February 2012) 1
<http://www.unccd.int/Lists/SiteDocumentLibrary/WDCD/DLDD%20Facts.pdf>.
616
Eric F Lambin and Patrick Meyfroidt, ‘Global Land Use Change, Economic Globalization, and the Looming
Land Scarcity’ (2011) 108 Proceedings of the National Academy of Sciences 3465.
617
See, eg, Calzadilla et al, above n 93.
618
Antonio Di Gregorio and Louisa Jansen, ‘Land Cover Classification System (LCCS): Classification
Concepts and User Manual’ (Food and Agriculture Organisation of the United Nations, 2000) [2.2]
<http://www.fao.org/docrep/003/x0596e/x0596e00.htm>.
619
‘World Development Report 2005: A Better Investment Climate for Everyone’, above n 400, 81 where it
provides case study examples of how secure property rights encourages environmental stewardship .
  Support practices that increase the carbon content of soils and protect against
mitigation; and

 Promote adaptation measures that are consistent with human rights principles.

Ultimately, this chapter concludes that the international regulation of soil does not yet
facilitate soil regeneration or the sustainable soil use to the extent required to satisfy criterion
4 of a RBA to FS. Criterion 4 of a RBA to FS requires that international regulatory
instruments enable the sustainable use of natural resources including by facilitating the
uptake of agroecological farming practices. However, this chapter finds that the relevant
international environmental law instruments are increasingly incorporating and recognising
human rights obligations. Such a trend is broadly consistent with a RBA to FS, and in
particular criterion 3 as it promotes greater coherence across the relevant regulatory
instruments intersecting with agriculture and food security.

The chapter begins by outlining the causes and impacts of soil degradation and the land
use practices that foster soil health. There are two key multilateral environmental agreements
regulating soil and land use. These instruments are: the UN Convention to Combat
Desertification in Those Countries Experiencing Serious Drought and/or Desertification,
Particularly in Africa (UNCCD)620 and the United Nations Framework Convention on
Climate Change (UNFCCC).621 Following this, the key non-binding instruments concerning
soil and land use will be outlined.

5.2 SOIL AND LAND USE: DEGRADATION, MITIGATION AND

RESTORATION

Soil is the ecosystem that provides the surface of the earth and is made up of minerals
(sand, silt or clay), air, water and organic material (soil organisms like earthworms,
decomposing organisms and plant matter).622 Consequently, ‘soil’ is a collective term
referring to the multiple kinds and layers of materials between the bedrock and the surface.623

620
United Nations Convention to Combat Desertification in Countries Experiencing Serious Drought and/or
Desertification, Particularly in Africa, adopted 17 June 1994, 1954 UNTS 3; 33 ILM 1328 (entered into force 26
December 1996) (UNCCD).
621
United Nations Framework Convention on Climate Change, concluded 9 May 2009, A/RES/48/189 (entered
into force 20 January 1994) (UNFCCC).
622
P D Houghton and P E V Charman, ‘Glossory of Terms Used in Soil Conservation’ (Soil Conservation
Service of NSW. under the authority of the Hon J R Hallam, MLC Minister for Agriculture and Minister for
Lands, for and on behalf of the Standing Committee on Soil Conservation., 1986) 1986, 115.
623
These layers are called “Soil Horizons”.
As a natural resource, soil is a finite, unequally distributed and generally non-renewable
because of the time it takes to form.624 Despite these limitations, soil is critical to agriculture
and food security due to the range of vital eco-system services it provides, and as it is the
basis for all land uses, including agriculture.625 In fact, due to its critical role in food
production, soil mismanagement has been linked to the decline of numerous ancient
civilisations.626

5.2.1 Soil Degradation and Sustainable Soil Management

Soil degradation, often referred to as land degradation,627 temporarily or permanently
reduces the ability of the land to produce food.628 It is defined as ‘the alteration of one or
more soil properties … that results in a lowered performance of a soil for a specific
function’.629 The end effect is a loss of soil fertility, where soil is increasingly vulnerable to
weather events and has reduced yields that leads to unsustainable use of synthetic
fertilisers.630

Unfortunately, soil is becoming degraded or lost at alarmingly unsustainable rates due

to human activities. In fact, every year an estimated 20 million hectares of agricultural land
becomes too degraded to produce food or is shifted from agriculture to urban sprawl.631 This
presents a severe and growing problem for long-term food security.

624
See, eg, Rattan Lal, ‘Soil Resource Conservation’ in eLS (John Wiley & Sons, Ltd, 2001)
<http://onlinelibrary.wiley.com/doi/10.1038/npg.els.0003295/abstract>.
625
Ian Hannam and Ben Boer, ‘Legal and Institutional Frameworks for Sustainable Soils: A Preliminary Report’
(IUCN Environmental Policy and Law Paper No. 45, IUCN: The World Conservation Union, 2002) 88, 11
<http://data.iucn.org/dbtw-wpd/edocs/EPLP-045.pdf>.
626
The key word in this area is Edward Hyams, Soil Civilization (1952)
<http://archive.org/details/SoilCivilization>.
627
While there are a number of forms of land degradation, these are mentioned briefly or in relation to soil
degradation, such as land degradation caused by deforestation, forest degradation, war and mining activities
628
Sara J Scherr and Satya Yadav, Land Degradation in the Developing World: Implications for Food,
Agriculture, and the Environment to the Year 2020. (International Food Policy Research Institute, 1996) 3.
629
Darcy Boellstorff, ‘Soil Degradation’ 2582, 2582.
630
See, eg, Michael A Keyzer and Ben G J Sonneveld, ‘The Effect of Soil Degradation on Agricultural
Productivity in Ethiopia: A Non-Parametric Regression Analysis’ in Nico Geerink, Herman van Keulen and
Marijke Kuiper (eds), Economic Policy and Sustainable Land Use (Springer, 2001) 269, 18–19; Christian
Nelleman et al, ‘The Environmental Food Crisis- The Environment’s Role in Averting Future Food Crises’
(United Nations Environment Programme, 2009) 104, 40–43
<http://www.grida.no/files/publications/FoodCrisis_lores.pdf>.
631
‘UNEP’s Strategy on Land Use Management and Soil Conservation: A Strengthened, Function Approach’
(United Nations Environment Program, 2004) 11. See also, We the peoples: the role of the United Nations in the
twenty-first century, 54th sess, Agenda Item 49(b), UN Doc A/54/2000 (27 March 2000) [284].
 Soil degradation results from interactions between both natural processes and human
activities.632 Natural factors that can contribute to soil degradation include the characteristics
of a particular site, such as whether the land is slanted, the soil’s properties and the amount of
rainfall.633 However, naturally-occurring erosion without human influence occurs at a pace so
gradual that the soil loss and the creation of new soil are balanced.634 On-site human activities
that degrade soil are primarily deforestation, including removal of native vegetation, and
industrial agricultural practices.635 These on-site causes of soil degradation have ultimate
causes that include the influence of laws, policies, the distribution of wealth and natural
resources, economic systems, population growth and institutional structures.636

Strategies for mitigating and restoring degraded soil fall under the umbrella of
sustainable land use management, and more specifically, sustainable soil management.
Sustainable soil management is about striking a balance between the need for a certain level
of yields for immediate food security against the need to maintain or increase soil fertility for
future food security. In other words, soil management is sustainable when it does not
compromise the ability of future generations to provide for their needs from that soil.637

The table below outlines a range of sustainable and unsustainable soil management
practices. Notably, sustainable soil management needs to be pursued within a broader

632
Rattan Lal, Principles of Sustainable Soil Management in Agroecosystems (CRC Press, 1st ed, 2013).
633
‘Land Degradation in South Asia: Its Severity, Causes and Effects upon the People’ (Food and Agricultural
Organization of the United Nations; United Nations Environment Programme; United Nations Development
Programme, 1994) 6 <http://www.fao.org/docrep/v4360e/v4360e00.HTM>.
634
David R Montgomery, ‘Soil Erosion and Agricultural Sustainability’ (2007) 104 Proceedings of the National
Academy of Sciences 13268, 13271.
635
‘Land Degradation in South Asia: Its Severity, Causes and Effects upon the People’, above n 628, 6.
636
The division between on-site and ultimate causes in the text was an approach adapted from Lawrence M
Kiage, ‘Land Degradation’ 1680
<http://knowledge.sagepub.com.ezp01.library.qut.edu.au/view/geography/n679.xml> where Kiage divided the
causes of land degradation into two groups. The first are the ultimate causes of land degradation and include the
influence of laws, policies, poverty, economics, population growth, institutional structures and social and
demographic change. These ultimate causes drive the second group, which is made up of proximate or on-site
causes of land degradation such as farming practices, deforestation, pollution and climate change. For
information regarding climate change and soil degradation, see eg, M A Nearing, F F Pruski and M R O’Neal,
‘Expected Climate Change Impacts on Soil Erosion Rates: A Review’ (2004) 59 Journal of Soil and Water
Conservation 43. Royston Philip Charles Morgan, Soil Erosion and Conservation (3rd Edition) (Blackwell
Publishing, 3rd ed, 2005) 9 <http://site.ebrary.com/lib/alltitles/docDetail.action?docID=10301180>.
637
A J Smyth and J Dumanski, ‘FESLM: An International Framework for Evaluating Sustainable Land
Management’ (Discussion Paper, Food and Agriculture Organisation of the United Nations, 1993) 85, 12–13
<https://www.mpl.ird.fr/crea/taller-colombia/FAO/AGLL/pdfdocs/feslm.pdf>. Hannam and Boer, above n 620,
8 critiqued the use of ‘sustainable soil management’ as a policy concept as they argue it lacks certainty and
consistency. They prefer the term ‘sustainable use of soil’, which they define as ‘The use of soils in a manner
that preserves the balance between the processes of soil formation and soil degradation, while maintaining
ecological functions and needs of soil’.
movement towards addressing the ultimate causes of soil degradation, such as distributional
inequities and land tenure insecurity.638

Unsustainable soil management Sustainable soil management practices

practices639
Use of untreated waste water and the over- Water harvesting and enhancing soil water
use of groundwater retention640
Removal of grass/vegetation Agroforestry641
Less fallow periods in which the land can Fallow periods642
restore itself
Lack of organic matter being returned to the Integrated crop-livestock systems643
soil (eg compost or manure)
Tillage systems644 No-till farming or conservation tillage (no
ploughing), which minimises disturbances in
the soil and builds mulch;645
Chemical-based fertilisers and pesticides Integrated nutrient management, which
usage646 involves maintaining soil fertility by using

638
See, eg, David Higgitt, ‘Soil Erosion and Soil Problems’ (1993) 17 Progress in Physical Geography 461,
462; Thomas Reardon and Stephen A Vosti, ‘Links between Rural Poverty and the Environment in Developing
Countries: Asset Categories and Investment Poverty’ (1995) 23 World Development 1495, 1504. In relation to
the latter source, the authors described the link between poverty and environmental degradation but noted that
the link depended on factors such as ‘the level, distribution and type of poverty, on the type of environmental
problem and on conditioning variables’.
639
Artemi Cerdà et al, ‘Soil Erosion and Agriculture’ (2009) 106 Soil and Tillage Research 107 provides an
overview of current understandings of soil erosion; Montgomery, above n 629 where it was found that
conventionally plowed agricultural fields erode at a rate 1-2 times greater than the rates of soil production or
erosion under native vegetation areas; D Blavet et al, ‘Effect of Land Use and Management on the Early Stages
of Soil Water Erosion in French Mediterranean Vineyards’ (2009) 106 Soil and Tillage Research 124 where
contributing factors outlined include chemical-use and lack of crop rotation; Michael A Fullen and John A Catt,
Soil Management : Problems and Solutions (Taylor and Francis, 2014) ch 5; B. Sheikh and GH Soomro,
‘Desertification: Causes, Consequences and Remedies’ (2006) 22 Pakistan Journal of Agriculture, Agricultural
Engineering and Veterinary Sciences 44; European Soil Portal
<http://eusoils.jrc.ec.europa.eu/projects/soil_atlas/Key_Factors.html>.
640
Rattan Lal, ‘Soil Carbon Sequestration Impacts on Global Climate Change and Food Security’ (2004) 304
Science 1623.
641
Ilan Stavi and Rattan Lal, ‘Agroforestry and Biochar to Offset Climate Change: A Review’ (2013) 33
Agronomy for Sustainable Development 81.
642
See, eg, Wolde Mekuria et al, ‘Effectiveness of Exclosures to Restore Degraded Soils as a Result of
Overgrazing in Tigray, Ethiopia’ (2007) 69 Journal of Arid Environments 270.
643
E Malézieux et al, ‘Mixing Plant Species in Cropping Systems: Concepts, Tools and Models: A Review’ in
Eric Lichtfouse et al (eds), Sustainable Agriculture (Springer Netherlands, 2009) 329
<http://link.springer.com/chapter/10.1007/978-90-481-2666-8_22>.
644
Tillage systems are activities that agitate the soil in preparation for planting crops and they may also kill
weeds. They can involve a plow or other kind of machinery.
645
See, eg, David R Montgomery, ‘Agriculture’s No-till Revolution?’ (2008) 63 Journal of Soil and Water
Conservation 64A,65A where Mongomery summarised the development towards no-till farming. He explained
‘Instead of burying crop residue deep in the soil where it rapidly decays, no-till practices leave crop residue at
the ground surface where it acts as mulch, helping to retain moisture and retard erosion. Unlike under
conventional plowing, no-till farmers minimize direct disturbance of the soil by using a chisel plow to poke
seeds down through crop stubble. Conservation tillage has been remarkably effective at reducing soil erosion,
and no-till farming can bring soil erosion rates down close to soil production rates’.; See also, R Lal, ‘Enhancing
Ecosystem Services with No-Till’ (2013) 28 Renewable Agriculture and Food Systems 102.
646
Note though that artificial fertilizers can have significant environmental benefits.
 less chemical fertilisers and more organic
sources like manure and compost.647
Application of charcoal to soil, termed “bio-
char”.648
Monocropping systems Biodiverse cropping systems 649
Lack of crop rotations Cover cropping, which protects the soil
surface from wind and water erosion, guards
against salinisation,650 and maintains soil
organic matter levels651
Table 3.1 Unsustainable and Sustainable Soil Management Practices

5.2.2 Sustainable Soil Management and a Rights-Based Approach to Food Security

Sustainable soil management, which as the above table illustrates is essentially made up
of specific agroecological practices, influences food security outcomes across all aspects. For
instance, sustainable soil management:

 Increases yields through enhanced soil fertility, thus improving food availability.

 Requires a lower amount of external inputs and promotes the re-use of waste and
integrated farming practices. Hence, farmers can increase their income by cutting
production costs and improving yields, which in turn improves food access.

 Influences the nutritional adequacy of food;

 Builds resilience to shocks thus promoting stability. For instance, healthy soil store
more water thus decreasing the adverse impacts of droughts.652

647
See, eg, Anil Mahajan and RD Gupta (eds), ‘Concept of INM System’ in Integrated Nutrient Management
(INM) in a Sustainable Rice—Wheat Cropping System (Springer Netherlands, 2009) 13
<http://link.springer.com.ezp01.library.qut.edu.au/chapter/10.1007/978-1-4020-9875-8_2>.
648
Bio-char has been shown to enhance soil health and dramatically improve how long soils store carbon. See,
eg, Melissa Leach, James Fairhead and James Fraser, ‘Green Grabs and Biochar: Revaluing African Soils and
Farming in the New Carbon Economy’ (2012) 39 The Journal of Peasant Studies 285, 287 where the authors
dicussed the use of bio-char in West Africa. They explained the use of Liberia as a case study that ‘demonstrates
how farmers have been adding multiple forms of biochar and organic material to certain soils over long periods
of time, within broader livelihood and agro-ecological repertoires. The addition of charred carbon is one
component among many others involved in the upgrading of soils [to be] enduringly fertile, locally valuable...’.
See also Johannes Lehmann, John Gaunt and Marco Rondon, ‘Bio-Char Sequestration in Terrestrial Ecosystems
– A Review’ (2006) 11 Mitigation and Adaptation Strategies for Global Change 395.
649
See, e.g., Malézieux et al, above n 638; Miguel A Altieri, ‘The Ecological Role of Biodiversity in
Agroecosystems’ (1999) 74 Agriculture, Ecosystems & Environment 19.
650
J P Mitchell et al, ‘Cover Crops for Saline Soils’ (1999) 183 Journal of Agronomy & Crop Science 167, 170.
651
D C Reicosky and F Forcella, ‘Cover Crop and Soil Quality Interactions in Agroecosystems’ (1998) 53
Journal of Soil and Water Conservation 224 where research surrounding cover crops and soil erosion is
summarised.
652
This list, while created by the author, is based on the literature review of soil science findings from Ernst
Gabathuler et al, ‘Benefits of Sustainable Land Management’ (UNCCD; World Overview of Conservation
 This discussion on soil highlights the vital role that sustainable, agroecological farming
practices has in ensuring long-term food security. Criterion 4 of a RBA to FS requires the
scaling up of such practices, and thus international regulation needs to enable sustainable soil
management and prevent unsustainable soil management. Climate change has intensified the
need for sustainable soil management and soil-related mitigation and adaptation measures
should aim to reduce the negative effects of climate change on food security.

Affected communities must be able to participate in the design and implementation of

sustainable soil management projects (criterion 3). More specifically, mitigation and adaption
measures for climate change must be drafted, interpreted and implemented in a way that does
not detrimentally affect the food security status of groups (criterion 1).653

5.3 LEGALLY-BINDING INTERNATIONAL FRAMEWORK FOR LAND USE

AND SOILS

5.3.1 Legal and Institutional Framework

There is no single authoritative instrument at the international level dealing with
sustainable soil management. This means no legally binding international agreement directly
deals with conserving or rejuvenating the world’s soil. Instead, there is a piecemeal approach
to the regulation of land use and soil management at the international level. In other words,
an assortment of international instruments, both binding and non-binding, and either directly
or indirectly deal with land-use and soil related issues.

The 1996 UN Convention to Combat Desertification in those Countries Experiencing

Serious Drought and/or Desertification, Particularly in Africa and the United Nations
Framework Convention on Climate Change (as well as its connected agreements) are the
binding instruments that directly intersect with sustainable soil management. In addition, a
range of non-binding instruments exist, and are summarised in the next section. Nevertheless,
the UNEP has bluntly described the international legal framework for land and soil

Approaches and Technologies; CDE (Centre for Development and Environment), University of Berne, 2009)
<http://www.unccd.int/Lists/SiteDocumentLibrary/Publications/CSD_Benefits_of_Sustainable_Land_Managem
ent%20.pdf>.See, eg, D S Powlson et al, ‘Soil Management in Relation to Sustainable Agriculture and
Ecosystem Services’ (2011) 36, Supplement 1 Food Policy S72.
653
Shelton, ‘Human Rights and Climate Change’, above n 252.
conservation as ‘…relatively weak and fragmented’,654 and soil scientists and environmental
NGOs have been calling for an international soil treaty for decades.655

Although a binding soil-specific treaty is not a cure-all for soil mismanagement issues,
it would help address the lack of a coordinated approach at the international level. A key
barrier to such a treaty has been a lack of political will, that is, soil tends to be a ‘second-tier
priority’ at both international and domestic levels.656 Across international institutional reports
and surrounding literature, there is a sense that soil degradation and conservation is
‘[u]nderrated, underappreciated and for the most part over ignored’.657 The omnipresence of
soils combined with the multifaceted, very gradual nature of soil degradation has resulted in a
failure to capture media and public attention and consequently political traction.658 One
commentator bluntly explained ‘Soil has an image problem’.659 Additionally, soils are
commonly perceived as being only a local issue, rather than an issue that broadly affects the
world population. As a result, soils have been artificially distinguished from related issues
that are considered global in their effects, such as deforestation and pollution.660

As an alternative to a soil-specific treaty, the UNFCCC or another body could establish

an optional protocol for sustainable soil management. Such a protocol would involve
emphasising the co-benefits of increasing soil carbon sequestration for food security while
mitigating climate change and perhaps set targets for carbon sequestration in soils as well as
vertification and monitoring procedures. This approach may lead to an instrument more able
to garner political support than a separate treaty, as the protocol would be linked with
mitigating climate change, a key objective of state governments, and connected with pre-

654
‘UNEP’s Strategy on Land Use Management and Soil Conservation: A Strengthened, Function Approach’
(United Nations Environment Program, 2004) 24.
655
Nicholas A Fromherz, ‘Case for a Global Treaty on Soil Conservation, Sustainable Farming, and the
Preservation of Agrarian Culture’ (2012) 39 Ecology Law Quarterly 57, 101.
656
‘Securing Healthy Soils for a Food Secure World: A Day Dedicated to Soils’ (Food and Agricultural
Organization of the United Nations, 5 December 2012) <http://www.fao.org/globalsoilpartnership/news-events-
archive/gsp-events/detail/en/c/161407/>.
657
Sandra Mason, Promoting Good Soil (23 February 2013) University of Illinois
<http://web.extension.illinois.edu/cfiv/homeowners/121210.html>.
658
See, eg, Alexandra M Wyatt, ‘The Dirt on International Environmental Law Regarding Soils: Is the Existing
Regime Adequate?’ (2008) 19 Duke Environmental Law & Policy Forum 165.
659
Jens Mackensen and Claudiane Chevalier, ‘Enhancing the Land and Soil Component in the Institutional
Framework of Multilateral Environmental Agreements’, A World Soils Agenda: Discussing International
Actions for the Sustainable Use of Soils (International Union of Soil Sciences (IUSS), 2002) 55, 55.
660
Tim Radford, ‘Soil Erosion as Big a Problem as Global Warming, Say Scientists’ The Guardian, 14 February
2004 <http://www.theguardian.com/world/2004/feb/14/science.environment> where Radford interviewed soil
scientist Ward Chesworth and stated ‘He [Chesworth] said the media focused on fossil fuel problems, climate
change, biodiversity, logging and forest fires, but not on soil because it was less spectacular’.
existing governance structures. As a result, addressing the gap in soil-related international
law by developing an optional protocol would perhaps be more efficient and effective than a
soil treaty.

Along with its unclear, fragmented international legal framework, the institutional
framework for land use and soil is spread across various UN bodies, including the FAO and
the UNEP, and NGOs, in particular the International Union of Soil Sciences and the
International Union for the Conservation of Nature (IUCN). This means that no international
governmental body exists to implement and monitor legally binding obligations that relate to
soil management. Likewise, research into soils has traditionally been under-funded; thus,
there is a lack of long-term soil data, and existing research is considered to have inconsistent
methodologies,661 while commonly being outdated and inaccessible.662 Fortunately, a
harmonised world soil database was developed in 2008 that extensively draws on data from
countries and international institutes.663 It was designed to begin addressing the lack of
available and consistent soil data at the international level.

Consistent with criterion 3, progress has been made towards a stronger, more unified
institutional framework for the sustainable use of soils. In 2011, the FAO established the
‘Global Soil Partnership’ to address the fragmented and underdeveloped legal and
institutional framework surrounding soil. The GSP is designed to advocate for and coordinate
‘initiatives to ensure that knowledge and recognition of soils are appropriately represented in
global change dialogues and decision making processes’.664 In order to do this, the GSP
brings together the various NGOs, government departments and other relevant bodies dealing
with soil use. This was a strong step towards a coordinated and more effective institutional
framework. Furthermore, the GSP initiative may increase the potential of soil being explicitly
considered in future MEAs and under the UNFCCC.

661
In the sense of the methodologies employed.
662
Ronald Vargas Rojas, ‘Global Soil Partnership and Its Future Euroasian Sub-Regional Soil Partnership’
(FAO; Global Soil Partnership, 2013)
<http://www.fao.org/fileadmin/user_upload/GSP/docs/eurasian_workshop/GSP_Moscow.pdf>.
663
Freddy OF Nachtergaele, Harrij van Velthuizen and Luc Verelst, ‘Harmonized World Soil Database’
(Version 1.0, Food and Agricultural Organization of the United Nations; International Institute for Applied
Systems Analysis; ISRC-World Soil Information; Institute of Soil Science; Chinese Academy of Sciences; Joint
Research Centre of the European Commission, 2008) <http://www.fao.org/nr/water/docs/harm-world-soil-
dbv7cv.pdf>. The purpose of this database is to improve soil information and address the lack of harmonised
soil data. The Harmonized Soil Database can help improve estimates regarding levels of carbon stored and land
degradation.
664
This is a common point made across the soil policy and science literature, see, eg, Rojas, above n 657;
Tomislav Hengl et al, ‘SoilGrids1km — Global Soil Information Based on Automated Mapping’ (2014) 9 PLoS
ONE e105992.
 The FAO and the United Nations Educational, Scientific and Cultural Organization
(UNESCO) have also sought to increase the profile of soil in the minds of policy-makers and
the world at large through awareness-raising events. In fact, 2015 was declared by the FAO
to be the ‘International Year of Soils’, there is now a World Soil Day campaign and around
120 events and educational seminars have been carried out worldwide in relation to
sustainable soil management in 2015.665

5.3.2 The United Nations Convention to Combat Desertification

5.3.2.1 Desertification and Food Security
Soil desertification is a form of soil degradation that occurs in dry land areas, such
areas makeup 40 per cent of the Earth’s land.666 Desertification is the spread of ‘desert-like
conditions’ and is a potentially irreversible condition that ultimately results in soil fertility
loss and the degradation of dryland ecosystem services.667 It occurs, at the farm level, from a
combination of human activities (eg vegetation clearing and farming practices like
overgrazing) and climatic factors (eg intense rain fall or drought).668

The UNCCD secretariat estimates that each year 12 million hectares on Earth become
barren due to drought and desertification, representing an estimated annual lost opportunity to
produce around 20 million tons of grains.669 Although desertification is a critical issue for
food security and sustainability, research on the economic and social impacts of
desertification at a worldwide level is lacking and contradictory.670 This is particularly
concerning as desertification disproportionately impacts on rural people living in developing
countries. Around two billion people farm in dryland areas and 90 per cent of these people
are in developing countries.671

665
See, eg, Spotlighting Humanity’s ‘silent Ally,’ UN Launches 2015 International Year of Soils (2014) United
Nations News Centre <http://www.un.org/apps/news/story.asp?NewsID=49520#.VhxgSfmqpBc>.
666
‘Desertification Land Degradation & Drought - Some Global Facts and Figures’, above n 610.
667
For a useful overview, see eg, Jagdish C Katyal and Paul L Vlek, ‘Desertification: Concept, Causes and
Amelioration’ (Discussion Papers on Development Policy 33, Center for Development Research, Universität
Bonn, October 2000) 1.1–1.2 <http://www.zef.de/uploads/tx_zefportal/Publications/zef_dp00-33.pdf>.
668
UNCCD art 1(a).
669
‘Desertification Land Degradation & Drought - Some Global Facts and Figures’, above n 610.
670
See generally, ‘Economic and Social Impacts of Desertification, Land Degradation and Drought. White
Paper I’ (UNCCD 2nd Scientific Conference, United Nations Convention to Combat Desertification, 2013) 53.
671
‘Global Drylands: A UN System-Wide Response’ (United Nations Environment Management Group,
October 2011) 132, 10
<http://www.unccd.int/Lists/SiteDocumentLibrary/Publications/Global_Drylands_Full_Report.pdf>.
5.3.2.2 Key aspects of the UN Convention to Combat Desertification
The UNCCD aims to foster cooperation and the creation of long-term, integrated
strategies at all governance levels to combat desertification and mitigate the effects of
drought, particularly in Africa.672 The Convention describes ‘combating desertification’ as
those activities that:

 Take an integrated approach to the sustainable development of land;

 Relate to arid, semi-arid and dry sub-humid areas;

 Aim to prevent, rehabilitate or recover desertified land.673

Unlike most MEAs, the primary objective of the UNCCD is not influencing domestic
law-creation. Instead, the UNCCD focuses on forming partnerships and encouraging
cooperation among communities, NGOs and at all levels of government.674

The preamble of the UNCCD recognises the adverse impacts of desertification on food
security, and makes it clear that the UNCCD is incorporating sustainable development
principles.675 Recalling criterion 1 of a RBA to FS, explicit reference to human rights
principles in the UNCCD’s preamble along with sustainable development would have been
an effective way to integrate human rights considerations into the interpretation of the
convention’s substantive provisions. The fact that the UNCCD does not explicitly refer to
human rights is unsurprising. International environment agreements generally do not
explicitly recognise human rights. This lapse is a reflection of the times in which
international environmental law was first formulated, as environmental concerns were
previously not considered to be human rights issues.676

Despite not explicitly adopting a RBA, the UNCCD lists principles to guide decision-
making that are consistent with criterion 3 of a RBA to FS, which requires the use of human
rights principles. According to the UNCCD, parties should be guided by the need for:

 Participation of local communities in the design and implementation of

programmes to combat desertification;

672
UNCCD art 2(1)-(2).
673
UNCCD art 1(b).
674
UNCCD art 3(c).
675
UNCCD art 2(1).
676
See, eg, Lavanya Rajamani, ‘The Increasing Currency and Relevance of Rights-Based Perspectives in the
International Negotiations on Climate Change’ (2010) 22 Journal of Environmental Law 391.
  Cooperation at international and regional levels to combat desertification,
including the better allocation of resources;

 Integration and partnership at all levels of government, communities, NGOs and

landholders to increase knowledge and work towards sustainable use of land
resources;

 Consider the special needs of affected developing countries.677

From the outset then, the UNCCD is clearly taking an approach to desertification that
integrates both top-down and bottom-up approaches to development. For instance, the role of
governments and NGOs aligns with a more top-down approach where outside parties
formulate policies and laws regarding how soil and land use should be carried out.
Meanwhile, the emphasis on local implementation and community participation reflects a
‘bottom-up’ approach, in which the experiences and knowledge of local communities is
called upon to determine how to combat desertification.678 The incorporation of a bottom-up
approach is critical to criterion 3 of a RBA to FS because it promotes transparency,
empowerment and meaningful participation in political processes.679

Article 19 provides an example of a substantive provision that emphasises the need for
bottom-up responses to desertification. This article recognises that capacity building
including ‘institution building, training and development’ is critical at the local level in order
to empower local communities to mitigate desertification. Consistent with a RBA, the
UNCCD explains that capacity building requires the full, effective participation of peoples,
including women, youth, NGOs and local organisations.680 Specifically, this is consistent
with criterion 2 of a RBA to FS, which requires particular protections and support for
marginalised groups and their input into relevant domestic policies, programs and laws.

The UNCCD’s specific reference to women as group that needs to be able to fully
participate in decision-making around land use is aligned with a RBA to FS, given the

677
UNCCD art 3 (a)-(d)
678
See, eg, UNCCD arts 17-19. Bottom-up or ‘development from below’ is an approach to sustainable
development that emphases on-site activities, community participation in decision-making and community
resource management. See, eg, Report of the Workshop on the Implementation of the 1995 FAO Code of
Conduct for Responsible Fisheries in the Pacific Islands: A Call to Action: Nadi, Fiji, 27-31 October 2003
(Food & Agriculture Org., 2004) 131 for a discussion on top-down, bottom-up and integrated approaches.
679
Jim Ife, Human Rights from Below: Achieving Rights Through Community Development (Cambridge
University Press, 2009) 6.
680
UNCCD art 19(1)(a)
significant role of women, explored in the previous chapter, to achieving food security.
Furthermore, encompassing and incorporating NGOs and local organisations in UNCCD has
proven to be an effective implementation strategy for the convention. For instance, Nkonya et
al analysed group discussions with community leaders from 273 Ugandan villages. They
found that the presence of NGOs focusing on sustainable agriculture increases the chance that
communities will establish regulations for and have an increased awareness of sustainable
soil management.681

Another key aspect of the UNCCD is the requirement that state parties create and
implement National Action Programmes (NAPs) that identify the respective roles of
stakeholders and incorporate practical strategies and policy guidance for combatting
desertification.682 The NAP is designed to be amendable and flexible in application at local
levels, which is a practical approach to ensuring that there are no formal barriers to local
communities taking ownership of its implementation.

While the UNCCD makes two references to food security in the context of NAPs, it
again fails to reinforce links with human rights principles and instruments and presents the
incorporation of food security objectives into NAPs as optional.683 Apart from not being
consistent with criterion 1 and 3 of a RBA, failing to require that relevant human rights be
incorporated into NAPs is an issue for effectively implementing a bottom-up approach, as
human rights law is instructive on the kinds of policies and instruments that empower
communities. Additionally, the UNCCD makes it optional for states to include sustainable
agricultural practices into their NAPs, despite the fact that such practices are the fundamental
way to combat desertification and improve food security.684

In order to assist the implementation of NAPs, the UNCCD established an advisory

body entitled the Global Mechanism. The Global Mechanism provides parties to the UNCCD
with guidance regarding how to access finance for sustainable land management projects or

681
Ephraim Nkonya, John Pender and Edward Kato, ‘Who Knows, Who Cares? The Determinants of
Enactment, Awareness, and Compliance with Community Natural Resource Management Regulations in
Uganda’ (2008) 13 Environment and Development Economics 79, 96.
682
UNCCD art 10.
683
UNCCD art 10(3)(c)-(4).
684
UNCCD art 10(4) where it states that NAPs can include, as appropriate, ‘sustainable management of natural
resources; sustainable agricultural practices…’.
programmes from a range of public and private sources at various levels.685 Specifically, one
of its main roles is to establish and maintain integrated financing strategies. Such an approach
is consistent with criterion 3 of a RBA to FS, which encourage coordination between
regulatory instruments and financial investment frameworks. An integrated finance strategy
could improve access to finance for sustainable land management projects by better
channelling finances into targeted funds and by helping stakeholders identify all potential
financial resources available.686 Thus, an integrated investment framework may better
facilitate sustainable soil management practices in line with criterion 4 of a RBA to FS.

685
‘The Global Mechanism of the UNCCD: The Way Ahead’ (Prepared for the 11th session of the Conference
of the Parties to the UNCCD (Windhoek, Namibia, 16-26 September 2013), The Global Mechanism of the
UNCCD, 2013) 18, 4.
686
‘The Global Mechanism of the UNCCD: The Way Ahead’, above n 680; The Global Mechanism: Supporting
Countries to Achieve Land Degradation Neutrality at the National Level (2015) The Global Mechanism;
UNCCD <http://www.global-mechanism.org/>.
Case Study: Desertification in Middle East and North Africa Region (MENA)
The majority of the MENA region is extremely arid, and so a main threat to the small amount
of arable lands is desertification.687 Similar to most world regions, the drivers of desertification in the
MENA region include population growth and unsustainable farming practices, such as overgrazing
combined with their climatic conditions. Around 12 countries in the MENA region are food-import
dependent with very limited agricultural products being exported or produced.688 These conditions
suggest that the UNCCD could be a useful framework for ensuring food security for the region, and in
particular, ensuring the stability of food supply.
Most States in the MENA region have signed and ratified the UNCCD However, Spiess
observed that ‘[m]itigating environmental threats such as desertification are conceptualized around
Western-derived standards of conduct…the normative concept of “good governance” and
“democracy”, are assumed to be adopted by and applicable in non-Western politico-cultural
contexts”.689 Apart from critical cultural and historical differences with Western culture, countries in
this region tend to have comparatively lower standards of accountability and transparency.690
Furthermore, some MENA states lack civil societies and free press, which, coupled with the common
approach in the region of minimal taxation, limits the possibility of incentives being introduced to
encourage landholders to reduce land degradations.691
Partly as a result of these factors, countries in the MENA region struggle to effectively
implement provisions of the UNCCD, such as developing and reforming their respective NAPs or
increasing awareness around sustainable soil management.692 A key achievement for this region has
been the establishment of the MENA Soil Partnership.693 This agreement focuses on sharing
information and technology at the regional level, relating to sustainable soil management.
Accordingly, the MENA Soil Partnership has established an MENA Soil Information System that
develops the ability of states to digitally map soil and standardises, gathers and updates soil data. With
accurate and more extensive information, states are in a better position to take targeted national and
regional actions that improve soil health and in doing so address threats to food insecurity. Moreover,
the MENA soil partnership increases information-sharing between states in the region, and may pave
the way for future collaborative approaches that are most suited to the region and cultures.

687
Mohamed Kassas, ‘Arab Environment: Future Challenges: Aridity, Drought and Desertification’ (Arab
Forum for Environment and Development, October 2008) 95, 99.
688
Alberto Valdes and William Foster, ‘Net Food-Importing Developing Countries: Who They Are, and Policy
Options for Global Price Volatility’ (Issue paper 43, International Centre for Trade and Sustainable
Development: Programme on Agricultural Trade and Sustainable Development, August 2012) 8.
689
Andy Spiess, ‘Developing Adaptive Capacity for Responding to Environmental Change in the Arab Gulf
States: Uncertainties to Linking Ecosystem Conservation, Sustainable Development and Society in
Authoritarian Rentier Economies’ (2008) 64 Global and Planetary Change 244, 245.
690
Mustapha Al-Sayyid, ‘Oil Markets and Regional Economies’ in Rapporteur’s Summary (Dubai School of
Government, 2009) 3, 4.
691
Danyel Reiche, ‘Energy Policies of Gulf Cooperation Council (GCC) Countries—possibilities and
Limitations of Ecological Modernization in Rentier States’ (2010) 38 Energy Policy 2395, 2397.
692
See, eg, Maha Ali Al-Zu’bi, ‘Combating Desertification in MENA’ <http://www.ecomena.org/tag/land-
degradation-in-middle-east/>.
693
The Participants of the MENA region, Workshop Global Soil Partnership and Ministry of Agriculture,
Amman Communique on MENA Soil Partnership (5 April 2012)
<http://www.fao.org/fileadmin/user_upload/GSP/docs/Presentation_NEMA_Inception/Amman_Communiqu%
C3%A9.pdf> accessed 22 September 2014.
5.3.2.3 Implementation of the UN Convention to Combat Desertification
The UNCCD is restricted to a particular form of soil degradation and has a specific
focus on countries in Africa. Desertification in Africa is a serious concern, as the FAO
predicts by 2030 Africa will have lost two-thirds of arable land to desertification.694 At the
same time, the specific focuses of the UNCCD makes it far less relevant to countries that are
not within its climatic zones and to soil degradation issues broader than desertification.695 The
narrow targets of UNCCD mean that it does not provide a framework for sustainable land and
soil management more generally, and thus the gap in relation to land use and soil governance
remains at the international level. While the UNCCD is the closest international instrument to
addressing soil degradation, it lacks the ability to address soil degradation in the
comprehensive and far-reaching way that is required to improve food security outcomes.696

Given the large amount of research and policy documents illustrating the benefits of
agroecological practices for soil quality,697 an international instrument concerning soil should
be facilitating agroecological practices in line with criterion 4 of a RBA to FS. However, the
UNCCD fails to identify the well-established, ecologically-based strategies for sustainable
soil management. Attaching particular incentives to specific strategies (eg conservation
tillage, legume cover crops, etc) could have been an effective and more targeted regulatory
approach. The UNCCD also fails to explore competing land uses such as the protection of
fertile soil from land uses related to mining or tourism that can lead to desertification. As a
result of these gaps, the UNCCD is not fully compatible with criterion 4 of a RBA to FS, and
represents a lost opportunity to confront soil degradation as a major threat to global food
security.

Other common criticisms of the UNCCD connect with criterion 3 of a RBA to FS.
These criticisms include that the UNCCD:

 Lacks a solid response to effectively monitoring and managing desertification;698

694
African Committee on Sustainable Development, ‘Africa Review Report on Drought and Desertification’,
ACSD-5, UN DOC E/ECA/ACSD/5/3 (November 2007) [26].
695
Lindsay Stringer, ‘Can the UN Convention to Combat Desertification Guide Sustainable Use of the World’s
Soils?’ (2008) 6 Frontiers in Ecology and the Environment 138, 140.
696
Andrea Koch et al, ‘Soil Security: Solving the Global Soil Crisis’ (2013) 4 Global Policy 434, 437.
697
See, eg, ‘Climate-Smart Agriculture Sourcebook’, above n 217.
698
L C Stringer, ‘Reviewing the International Year of Deserts and Desertification 2006: What Contribution
towards Combating Global Desertification and Implementing the United Nations Convention to Combat
Desertification?’ (2008) 72 Journal of Arid Environments 2065.
  Fails to use the synergies between soil degradation and climate change;699

 Failed to coordinate with the scientific community when drafting the

convention;700 and

 Fails to recognise soil as an individual ecological element, like biodiversity or

wetlands, which requires its own legal processes.701

The parties to the UNCCD recognise these issues. In fact, state parties to the UNCCD
observed that the UNCCD has: ‘insufficient financing [compared to the UNFCCC and the
CBD], a weak scientific basis, insufficient advocacy and awareness among various
constituencies, institutional weaknesses and difficulties in reaching consensus among
Parties’.702 Subsequently, at the Conference of Parties in 2007, a Ten Year Strategic Plan (the
Strategy) was decided upon to revitalise UNCCD parties and to address some of the outlined
flaws in the implementation of the UNCCD.703

The Strategy, which is to be pursued from years 2008-2018, requires each state gather
biophysical and socioeconomic evidence to determine how effectively their existing NAPs
work towards UNCCD objectives.704 This process, if undertaken, is designed to reveal gaps in
the implementation of the UNCCD at a domestic level. Once the gaps or problem areas are
identified (eg lack of coordinated legal and policy frameworks, etc), the actions necessary to
fill these gaps must then be outlined by each state and inserted into an action plan that is
connected to their existing NAP.

699
Alan Grainger et al, ‘Desertification, and Climate Change: The Case for Greater Convergence’ (2000) 5
Mitigation and Adaptation Strategies for Global Change 361.
700
Steffen Bauer and Linsday Stringer, ‘Science and Policy in the Global Governance of Desertification’ (An
analysis of institutional interplay under the United Nations Convention to Combat Desertification No. 35, The
Global Governance Project, February 2008) 1 <http://www.peacepalacelibrary.nl/ebooks/files/C08-0097-Bauer-
Science.pdf>.
701
Hannam and Boer, above n 620.
702
Conference of the Parties, United Nations Convention to Combat Desertification in those Countries
Experiencing Serious Drought and/or Desertification, Particularly in Africa, The 10-year strategic plan and
framework to enhance the implementation of the Convention (2008-2018), UNCCD, Decision
3/ICCD/COP(8)/16/Add.1 (2007).
703
Ibid [2].
704
Conference of the Parties, United Nations Convention to Combat Desertification in those Countries
Experiencing Serious Drought and/or Desertification, Particularly in Africa, Part Two Action taken by the
Conference of the Parties at its eighth session: Report of the Conference of Parties, UNCCD, 8th sess,
ICCD/COP(8)/16/Add.1 (23 October 2007) Annex 1, 16-17.
 Unfortunately, a recent mid-term evaluation found that the Strategy has not stimulated
the level of targeted action that was expected.705 Key challenges identified where the
difficulties of monitoring and identifying the impacts of NAPs as well as a lack of resources
or difficulty accessing resources to implement relevant programs.

Given the lack of implementation of the UNCCD and the limited effect to date of the
attempts to reinvigorate implementation, the UNCCD has generally not been an effective
instrument for an RBA to FS. The issues with implementation are distributional in nature, and
may suggest more systemic changes are needed. The lack of an effective and comprehensive
international response, which recognises and exploits the connections between food security
and sustainable soil management, is a critical issue in the regulatory framework for
agriculture.

5.3.3 The Climate Change Regime

5.3.3.1 Soil Carbon, Farming Practices and Food Security
Table 2.2 in Chapter 2 provided a summary of the agricultural policy concepts that use
and promote agroecology. One of these concepts was climate-smart agriculture, which
focuses on how agroecological practices can simultaneously improve food security and
mitigate and adapt to climate change. Climate-smart agriculture encourages those
agroecological techniques (eg no-tillage farming and agroforestry) that improve the resilience
of agriculture to changing climatic conditions while increasing yields and farmer incomes.706
Meanwhile, the same farming techniques mitigate climate change by removing carbon, a
greenhouse gas, from the atmosphere.

Soil management is an indispensable part of climate-smart agriculture. Soil is the major

terrestrial carbon pool; it stores three times more carbon than biomass (eg flora) above soil
and around twice as much as the atmosphere.707 Because soils absorb, release and store
carbon, they are a major part of balancing atmospheric levels. Correspondingly, increasing
the carbon content of soils also improves soil fertility, enhances the nutrient supplying power

705
Conference of the Parties, United Nations Convention to Combat Desertification in those Countries
Experiencing Serious Drought and/or Desertification, Particularly in Africa, Mid-term evaluation of the 10-year
strategic plan and framework to enhance the implementation of the Convention (2008-2018), 11th sess COP, UN
Doc ICCD/COP(11)/21 (8 July 2013)
706
‘Climate-Smart Agriculture Sourcebook’, above n 217, xi.
707
Hari Eswaran, Evert Van Den Berg and Paul Reich, ‘Organic Carbon in Soils of the World’ (1993) 57 Soil
Science Society of America Journal 192.
of soil, reduces soil erosion, improves groundwater quality through enhanced soil filtration,
and decreases the need for expensive and resource-intensive synthetic fertilisers.708 As a
result, higher levels of carbon in soils mitigate the chance of crop failure in years of drought,
improve food access by reducing production costs and increase food availability by
improving yields.709 On this point, Lal estimates that an increase in 1 ton of soil carbon in
degraded cropland soils would increase crop yield by 20 to 40 kilograms per hectare for
wheat and 10 to 20 kg/ha for maize.710

Chapter 2 discussed the impact of climate change on food security and the ability for
agroecological practices to mitigate these impacts and improve the resilience of agricultural
systems were discussed. In particular, a large body of evidence was outlined that showed how
farms that do not rely on synthetic external-inputs and use mainly agroecological methods (eg
biopesticides, intercropping, low tillage, etc) can increase food supply and farmer income
especially for small-scale farmers. Significantly, the same agroecological practices are known
to mitigate the effects of climate change.711 In other words, the farming practices that mitigate
climate change by increasing the amount of carbon stored in soil are the same agroecological
practices that make food production more sustainable for long-term food security and
potentially improve the food security status of marginalised farming communities.712
Likewise, farming practices that build the resilience and adaptability of farms to changing
climatic conditions are the same as those agroecological farming methods that mitigate
climate change. Consequently, the climate change regime is uniquely placed to promote a
RBA to FS, and especially criterion 2 (support for food insecure groups) and criterion 4
(enabling the uptake of agroecological practices).

Despite the potential of win-win outcomes for climate mitigation and food security, programs
promoting on-farm soil carbon sequestration can have harmful, incidental effects if they are
not effectively regulated and the harms counteracted. For instance, yields may be lower while

708
For an overview see, Julian Dumanski, ‘Carbon Sequestration, Soil Conservation, and the Kyoto Protocol:
Summary of Implications’ (2004) 65 Climatic Change 255, 256.
709
Berman D Hudson, ‘Soil Organic Matter and Available Water Capacity’ (1994) 49 Journal of Soil and Water
Conservation 189; W J Rawls et al, ‘Effect of Soil Organic Carbon on Soil Water Retention’ (2003) 116
Geoderma 61.
710
Lal, ‘Soil Carbon Sequestration Impacts on Global Climate Change and Food Security’, above n 635, 1623.
711
See, eg, Lal, ‘Soil Carbon Sequestration Impacts on Global Climate Change and Food Security’, above n
635.
712
Olivier De Schutter, ‘Climate Change and the human right to adequate Food’, Contribution to the meeting
convened by the Fried-Ebert-Stiftung with the Committee on Economic, Social and Cultural Rights (13 May
2010) <http://www2.ohchr.org/english/issues/food/docs/climate-change-and-hr-adequate-food.pdf>.
farms are transitioning to more agroecological practices and there could be an increased use
of herbicides for the first two years where no-till practices are adopted (affecting the
environment and farmer income).713

Another concern is that soil carbon mitigation and adaptation projects, along with other
carbon off-setting schemes, divert attention and resources from the need to significantly
reduce dependence on fossil fuels.714 A RBA to FS requires a climate change regime that
effectively reduces the emissions from fossil fuels in order to prevent or lessen the negative
impacts climate change will have on food security. Subsequently, progress in the area of soil
carbon sequestration and related land use changes should not distract from the need to
substantially decrease fossil fuel emissions worldwide from industries and transportation.

States arguably have a range of human rights duties related to sustainable soil
management for the mitigation of climate change. These duties include:

 States must not interfere with local practices of sustainable soil management nor
make decisions or act in a way that will substantially degrade soils (respect);

 States must ensure that attempts to mitigate or adapt to climate change through soil
carbon sequestration projects or programs are not inconsistent with human rights
principles and will not interfere with the human rights owed, including the human
right to adequate food (protect);

 States must actively create, in collaboration and individually, programs for climate
change mitigation or adaptation that progress human rights including those
associated with food security (fulfil).715

Arguably, international institutions must develop enabling international regulatory

frameworks that support and encourage states to satisfy their human rights obligations.

713
William H Schlesinger, ‘Carbon Sequestration in Soils: Some Cautions amidst Optimism’ (2000) 82
Agriculture, Ecosystems & Environment 121; Susan Subak, ‘Agricultural Soil Carbon Accumulation in North
America: Considerations for Climate Policy’ (2000) 10 Global Environmental Change 185.
714
See, eg, Guy Pearse, Greenwash: Big Brands and Carbon Scams (Black Inc.); Michael Polonsky and
Romana Garma, ‘Are Carbon Offsets Potentially the New “Greenwash?”’ [2008] ANZMAC 2008: Australian
and New Zealand Marketing Academy Conference 2008: Marketing: Shifting the Focus from Mainstream to
Offbeat <http://dro.deakin.edu.au/view/DU:30018171>; Sharon Beder, Carbon Offsets Can Do More
Environmental Harm than Good (28 May 2014) The Conversation <http://theconversation.com/carbon-offsets-
can-do-more-environmental-harm-than-good-26593>.
715
These are based on Elizabeth Caesens and Maritere Padilla Rodriguez, ‘Climate Change and the Right to
Food: A Comprehensive Study’ (8, Columbia Law School Human Rights Institute, Heinrich Böll Foundation,
2009) 43–44.
5.3.3.2 The Framework Convention and a Rights-Based Approach to Food Security
Under human rights law, states are obligated to reduce their GHG emissions,
individually and through international cooperation, to a level that ensures food security.716
Likewise, the United Nations Framework Convention on Climate Change (UNFCCC)
emphasises that GHG concentration in the atmosphere needs to be stabilised within a
timeframe that ‘ensures that food production is not threatened’.717 This objective is
compatible with criterion 1 of a RBA to FS. Nevertheless, human rights and food and
agriculture have commonly played a minor role in climate change negotiations and
agreements.

All parties to the UNFCCC are required to:

Promote and cooperate in the development, application and diffusion, including

transfer, of technologies, practices and processes that control, reduce or prevent
anthropogenic emissions of…agriculture.718

This provision does not preference a particular approach to agriculture, but it does
acknowledge the need for a gradual shift from current agricultural models to methods that are
less carbon-intensive. The vague nature of this provision means that it could be implemented
in a way that is not consistent with a RBA to FS, but on paper, the provision is compatible
with a RBA to FS, and especially criterion 4 of this approach.719

The UNFCCC further provides that parties must:

Cooperate in preparing for adaption to the impacts of climate change by developing

and expanding, as appropriate, integrated plans for agriculture and for the protection
and rehabilitation of areas…affected by drought and desertification, as well as
floods.720

It is unclear what ‘integrated plans for agriculture’ refers to, but regardless this
provision clearly encourages parties to facilitate farming practices that increase the resilience
of the land and promote soil restoration. Integrated plans for agriculture would perhaps

716
ICESCR arts 2, 11. Shelton has made a similar argument, but in regards to all rights under the ICESCR. See,
Shelton, ‘Human Rights and Climate Change’, above n 252, 14.
717
UNFCCC art 2.
718
UNFCCC art 4(1)(c).
719
For a perspective on this, see Farming Carbon Credits a Con for Africa: The Many Faces of Climate Smart
Agriculture (16 December 2011) Gaia Foundation <http://www.gaiafoundation.org/blog/farming-carbon-
credits-a-con-for-africa-the-many-faces-of-climate-smart-agriculture>.
720
UNFCCC art 4(1)(e).
support agroforestry and mixed crop-livestock farming where different production systems
are being integrated to improve resilience.721Likewise, integrated plans for agriculture may
involve, for instance, reducing the impact of agriculture on other eco-systems such as
waterways.

The UNFCCC could be seen as inherently aligned with criterion 4 of a RBA to FS, as
the UNFCCC very broadly seeks to facilitate more agroecological/sustainable farming
practices and particularly sustainable soil management. While its aim is not directly to
improve food security, the measures undertaken to mitigate climate change related to more
sustainable methods of food production are generally likely to have positive impacts on food
security, particularly in the long-term. In this way, the UNFCCC is not incompatible with a
RBA to FS.

Recently, the Conference of Parties to the UNFCCC adopted the Paris Agreement,
which does recognise the human rights obligations owed by state parties and held by all
humans, including specifically women and indigenous peoples.722 Although the UNFCCC did
not directly endorse a RBA to FS, the Paris Agreement, as well as the surrounding
negotiations, evidences a growing recognition of a RBA in climate law and in international
environmental law more generally.723 Such developments are consistent with criterion 1
(provisions compatible with human rights) and criterion 3 (coherent regulatory and
institutional frameworks).

Since the UNFCCC entered into force in 1994, climate change negotiations have
centred on reaching more detailed agreements that obligate governments to take specific
actions. The two most significant, the Kyoto Protocol and the Paris Agreement, are discussed
in relation to agricultural land use, soil and food security.

5.3.3.3 The Kyoto Protocol

The Kyoto Protocol provides an avenue to incentivise sustainable soil management for
food security while mitigating climate change. The protocol expands on the UNFCCC by

721
There is no guidance on integrated plans for agriculture in the ‘Good Practice Guidance for Land Use, Land-
Use Change and Forestry’ (Intergovernmental Panel on Climate Change, 2003) <http://www.ipcc-
nggip.iges.or.jp/public/gpglulucf/gpglulucf_files/GPG_LULUCF_FULL.pdf>.
However, the guidelines do promote agroforestry and biological diversity.
722
Adoption of the Paris Agreement, 21st sess, Agenda item 4(b), UN Doc FCCC/CP/2015/L.9 (12 December
2015) annex (Paris Agreement).
723
See, eg, Rajamani, above n 671.
committing developed countries, listed in Annex B, to internationally binding emission limits
and reduction targets (Annex B Parties).724

The Kyoto Protocol does not impose emission limits on developing countries, which
reflects the ‘Common but Differentiated Responsibility’ principle contained in both the
protocol and the UNFCCC.725 From an RBA to FS perspective, the use of the ‘Common but
Differentiated Responsibility’ principle aligns with criterion 3 as it reflects human rights
principles of non-discrimination and equality. Similar to Common but Differentiated
Responsibility, the human rights principles of non-discrimination and equality allow for
positive differential treatment where required to ensure the effective participation and
protection of marginalised groups.726 In a similar vein, the ‘Common but Differentiated
Responsibility’ principle provides that all countries have a shared need to address climate
change, but each has differing national capacities, vulnerabilities and levels of contributions
to the issue.727 Thus, these factors should be reflected in a country’s burden and
responsibilities.

In addition, some similarities exist between the principle of ‘Common but

Differentiated Responsibility’ and the ‘Progressive Realisation’ principle contained in Article
2(1) of the ICESCR. Under the latter principle, all state parties have obligations under the
ICESCR but these obligations differ depending on a state’s ‘maximum available
resources’.728 Overall then, there are some clear parallels between the principle guiding the
Kyoto Protocol and human rights principles.

724
Kyoto Protocol to the United Nations Framework Convention on Climate Change, opened for signature 11
December 1997, UN Doc FCCC/CP/1997/7/Add.1, Dec. 10, 1997; 37 ILM 22 (1998) (entered into force 16
February 2005) Annex B (Kyoto Protocol). Developed countries are those outlined in Annex B.
725
UNFCCC art 3(1)-(2).
726
ICESCR art 2(2) ‘The State Parties to the present Covenant undertake to guarantee that the rights enunciated
in the present covenant will be exercised without discrimination of any kind as to race, colour, sex, language,
religion, political or other opinion, national or social origin, property birth or other status’. Article 3 reads ‘The
States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment
of all economic, social and cultural rights set forth in the present Covenant’. Similar wording is provided in the
ICCPR arts 2(1) and 3. In relation to special treatment or positive discrimination see, Human Rights Committee,
General Comment 23, Article 27, Compilation of General Comments and General Recommendations, 50th sess,
UN Doc HRI/GEN/1/Rev.1 at 38 (1994) paras 6.1-6.2.
727
This point was made in Human Rights Council, Report of the Office of the United Nations High
Commissioner for Human Rights on the relationship between climate change and human rights, 10th sess,
Agenda item 2, UN Doc A/HRC/10/61 (15 January 2009) 5[11] where it was stated that the common but
differentiated responsibilities principle gives ‘operational meaning to the “equity principle”’.
728
For a more in-depth discussion on this point, see, Mcinerney-Lankford, Darrow and Rajamani, above n 252,
51.
 (a) Carbon Offsetting

Under the Kyoto Protocol, each Annex B Party is provided with ‘Assigned Amount
Units’, such figure incorporates their emission limit and reduction commitments, and is
contained in Annex B.729 For the first commitment period, Annex B Parties agreed to reduce
overall emissions by 5 per cent below 1990 levels from years 2008-2012.730 For the second
commitment period, particular Annex B Parties have committed to reduce GHG emissions by
18 per cent below 1990 from years 2013 to 2020.731 To determine whether parties have met
their targets under the Kyoto Protocol, Annex B Parties have to monitor and annually report
on their progress over the first commitment period.732 Appointed experts analyse these
reports and circulate their findings among the state parties.733

In order to meet their reduction commitments, Annex B Parties are obligated under
Article 3.3 to measure and report on (among other sources of GHGs) emissions and removals
from changes in land uses since 1990. The land use changes relevant are deforestation,
reforestation and afforestation.734 For example, the following land use activities can
contribute to an Annex B Party meeting its reduction commitments: transformation of
degraded agricultural soils into agroforestry systems, conversion of farmland into forests, or
reduction in the amount of forest lands converted to agricultural lands.

Under Article 3.4, Annex B parties can choose to report changes in soil carbon on
agricultural lands that result from specific agricultural practices, including cropland
management, grazing land management and re-vegetation.735 To be valid as an offset, carbon
removals by soil needs to ‘[d]eliver real, permanent, additional and verifiable mitigation
outcomes, avoid double counting and achieve a net decrease and/or avoidance of greenhouse
gas emissions’ and satisfy the rules, guidelines and modalities developed.736 If parties decide

729
Kyoto Protocol art 3.1.
730
Kyoto Protocol art 3.1.
731
Conference of the Parties to the Kyoto Protocol, ‘Report of the Conference of the Parties serving as the
meeting of the Parties to the Kyoto Protocol’, 8th sess, UN Doc FCCC/KP/CMP/2012/13/Add.1 (28 February
2013). The second commitment period was only ratified by 50 states, yet for entry into force the protocol must
be ratified by 55 countries that in total cover 55 per cent of global emissions since 1990.
732
Kyoto Protocol arts 7, 21(7), 20(4).
733
Kyoto Protocol art 8.
734
Kyoto Protocol art 3.3.
735
Kyoto Protocol art 3.4.
736
Conference of the Parties to the United Nations Framework Convention on Climate Change, Report of the
Conference of the Parties on its seventeenth session, held in Durban from 28 November to 11 December 2011-
to not account for changes under agricultural land management, they are still able to create
and participate in voluntary soil carbon sequestration schemes through use of carbon markets.

To meet the reporting requirements of the Kyoto Protocol, verifying the carbon content
of soil requires extensive, continual monitoring of soil on the land where the land use change
is to be carried out.737 Independent assessments of the methods and models employed should
be adopted and the data used for determining national figures needs to be included in
reports.738

(b) Implementation Difficulties

The importance of the Kyoto Protocol to a RBA to FS is that it can be used to facilitate
and incentivise agroecological-farming practices for sustainable soil management consistent
with criterion 4. Such practices improve the quality and quantity of food produced and make
agricultural lands more resilient to changing climatic conditions and weather events.
Furthermore, facilitating sustainable farming practices is consistent with the intergenerational
dimensions to a RBA as it promotes the long-term sustainable use of soils.

Currently though, it is difficult to meet the requirements for reporting carbon emissions
and removals by soil. Global information on soil carbon is disproportionate, prone to errors
and lacking in standardised approaches.739 Furthermore, there is no scientific consensus on
the amount of carbon in soil beforehand (that is, the baseline carbon level), the permanence
of carbon sequestration (how long carbon is stored in soil) and the amount of carbon leakage
from soil.740 Adding to these issues is the difficulties of detecting whether a land use change
or farming practice has increased the level of carbon stored in soil or whether a change in

Addendum-Part 2: Action taken by the Conference of the Parties at its seventeenth session, UN Doc
FCCC/CP/2011/9/Add.1 (15 March 2012) [79].
737
See, Felipe García-Oliva and Omar R Masera, ‘Assessment and Measurement Issues Related to Soil Carbon
Sequestration in Land-Use, Land-Use Change, and Forestry (LULUCF) Projects under the Kyoto Protocol’
(2004) 65 Climatic Change 347; WM Post et al, ‘Monitoring and Verifying Changes of Organic Carbon in Soil’
(2001) 51 Climatic Change 73; Richard T Conant et al, ‘Measuring and Monitoring Soil Organic Carbon Stocks
in Agricultural Lands for Climate Mitigation’ (2010) 9 Frontiers in Ecology and the Environment 169.
738
Werner L Kutsch, Michael Bahn and Andreas Heinemeyer, Soil Carbon Dynamics: An Integrated
Methodology (Cambridge University Press, 2010) 251.
739
See, eg, Robert Jandl et al, ‘Current Status, Uncertainty and Future Needs in Soil Organic Carbon
Monitoring’ (2014) 468–469 Science of The Total Environment 376.
740
See, eg, Brian C Murray, Brent Sohngen and Martin T Ross, ‘Economic Consequences of Consideration of
Permanence, Leakage and Additionality for Soil Carbon Sequestration Projects’ (2006) 80 Climatic Change
127. P Smith, ‘An Overview of the Permanence of Soil Organic Carbon Stocks: Influence of Direct Human-
Induced, Indirect and Natural Effects’ (2005) 56 European Journal of Soil Science 673, 679. After providing an
overview, Smith explained ‘Separating the various influences on soil carbon stocks, and on the permanence of
these stocks, remains a major challenge for soil science’.
carbon levels is simply the result of natural fluctuations.741 Even accurately measuring the
carbon content of a particular site is challenging, as a large amount of variability exists
between soil properties even within short distances.742 As a result of these issues, there are
significant barriers for using the Kyoto Protocol as a tool to promote food security through
incentivising agroecological practices and mitigating climate change.

The difficulties of monitoring and reporting on soil carbon levels are not only an issue
for the operation of Article 3.4, as they pose a barrier to emission trading schemes and
voluntary carbon markets. The high costs associated with monitoring social carbon impact
upon the cost and competitiveness of carbon credits that farmers could sell in emission
trading schemes.743 If carbon credits are too expensive due to the costs of measuring soil
carbon, industry demand for this kind of carbon credit is likely to decline, and then the
effectiveness of carbon markets as a regulatory tool for incentivising agroecological practices
will be limited. Moreover, the expense and complexity involved in monitoring soil carbon is
likely to reduce the feasibility of soil carbon projects being a widespread development in
poor, rural areas of developing countries.

The lack of scientific certainty regarding soil carbon is due in part to the international
downward trend in the public funding of agricultural research. Correspondingly, private
funding of agricultural research has increased to seemingly fill the gap left by drops in public
funding.744 However, private sector research is generally for-profit, and so private research
funding is channelled to those projects with market potential. Developing methods to better
monitor soil carbon may not have clear profitability potential for large corporations. In fact,
the farming practices that increase soil carbon stocks tend to require less external input use
(eg synthetic fertiliser); thus, developing ways for farmers to measure soil carbon stocks on
their land could threaten current markets for inputs such as synthetic fertiliser.745

741
See, García-Oliva and Masera, above n 732.
742
Conant et al, above n 732.
743
Sin Mooney et al, ‘Influence of Project Scale and Carbon Variability on the Costs of Measuring Soil Carbon
Credits’ (2004) 33 Environmental Management S252, 253.
744
In a 1998 article assessing international investment patterns in agriculture, Alston, Pardey and Roseboom,
above n 134, 1066 explained that ’The private share has trended up significantly since 1981 and now almost half
the OECD’s agricultural R&D is performed by the business sector’. For updated but similar findings, see Keith
Fugile et al, ‘The Contribution of Private Industry to Agricultural Innovation’ (USDA Scientist Submission 338,
2012) <http://naldc.nal.usda.gov/naldc/catalog.xhtml?id=56999>.
745
See, eg, Carl E Pray and Dina Umali-Deininger, ‘The Private Sector in Agricultural Research Systems: Will
It Fill the Gap?’ (1998) 26 World Development 1127.
 In order for the climate change regime to contribute more to food security in terms of
soil carbon sequestration, it is likely that publically-funded research will need to create
monitoring and verification systems. Given the nature of soil as a slow-changing resource,
future research will need to employ permanent soil monitoring programmes using long-term
research sites and enhance models and tools to assess soil carbon stocks.746 Moreover,
publically-funded research should be directed at enhancing models and methods of assessing
on-farm soil carbon stocks.

Along with improving the ability to measure soil carbon, the climate change regime
would better contribute to food security if it sought to measure or verify the other positive
impacts of increasing soil carbon content.747 Consideration of the food security benefits that
flow from improving the soil carbon content of soils may significantly influence the extent to
which states undertake GHG mitigation and the mix of mitigation strategies they use to meet
targets.748 Moreover, being able to account for the food security co-benefits of mitigation
strategies under the international climate regime is consistent with establishing an enabling
international regulatory environment for a RBA to FS (see, criterion 1 and 3).

These implementation difficulties are far from the only problems that the Kyoto
Protocol has to overcome in order to be operational. The US, the world’s second largest
emitter, has not ratified the Kyoto Protocol.749 Meanwhile, the emissions from middle-income
countries have substantially increased to the point that India, Indonesia, China, Brazil and

746
See, eg, James Walcott, Sarah Bruce and John Sims, ‘Soil Carbon for Carbon Sequestration and Trading: A
Review of Issues for Agriculture and Forestry’ (Australian Government, Bureau of Rural Sciences, Department
of Agriculture, Fisheries & Forestry, March 2009); N J McKenzie and J Dixon, ‘Monitoring Soil Condition
across Australia: Recommendations from Expert Panels’ (Prepared on behalf of the National Committee on Soil
and Terrain for the National Land and Water Resources Aud)
<https://eprints.usq.edu.au/2889/1/McTainsh_Leys_Carter_Butler_McCord_Wain_Dixon_McKenzie.pdf>.
Mirjam Pulleman et al, ‘Soil Biodiversity, Biological Indicators and Soil Ecosystem Services—an Overview of
European Approaches’ (2012) 4 Current Opinion in Environmental Sustainability 529.
747
See, eg, Eberhard Jochem and Reinhard Madlener, ‘The Forgotten Benefits of Climate Change Mitigation:
Innovation, Technological Leapfrogging, Employment, and Sustainable Development’ (OECD Workshop on the
Benefits of Climate Policy: Improving Information for Policy Makers ENV/EPOC/GSP(2003)16/FINAL,
Organisation for Economic Co-operation and Development, 2003) 9
<http://www.oecd.org/env/cc/19524534.pdf> where the authors conceptualised the ancillary and co-benefits of
technology transfer to reduce emissions. They explained ‘[t]here exist significant ancillary benefits/co-benefits
that have so far been largely neglected and that could make climate change mitigation policy measures less
costly than assumed so far, and that could – provided entrepreneurs are indeed able to take these properly into
account in their decision-making, could have a tremendous effect on climate change mitigation’.
748
Intergovernmental Panel on Climate Change, Climate Change 2007 - Mitigation of Climate Change:
Working Group III Contribution to the Fourth Assessment Report of the IPCC (Cambridge University Press,
2007) 310.
749
Another large emitter, Russia, only ratified the Kyoto Protocol in 2004. This slowed the momentum around
the Kyoto Protocol, as some of the world’s largest emitters were not being held accountable.
Mexico are now in the top 10 largest emitters.750 China’s emissions have increased by 286.6
per cent since 1990 and it is now ranked the largest emitter in the world.751 When the Kyoto
Protocol was finalised in 1997, it considered middle-income countries as developing and thus
they were not required to meet reduction commitments.752

Because of the limited application of the Kyoto Protocol to the world’s largest emitters,
parties to the UNFCCC continued to negotiate on an agreement that would bind all countries.
Eventually, these negotiations led to the development of the Paris Agreement.753

5.3.3.4 The Paris Agreement

Unlike the other environmental agreements examined so far, the Preamble to the Paris
Agreement significantly aligns with a RBA to FS. The following paragraphs to the preamble
support a RBA to FS:

 ‘Emphasising the intrinsic relationship that climate change actions, responses and
impacts have with equitable access to sustainable development and the eradication
of poverty’ (reflective of criterion 4);

 ‘Recognising the fundamental priority of safeguarding food security and ending

hunger, and the particular vulnerabilities of food production systems to the adverse
impacts of climate change’ (reflective of criterion 1); and

 ‘Acknowledging that … Parties should, when taking action to address climate

change, respect, promote and consider their respective obligations on human rights,
the right to health, the rights of indigenous peoples, local communities, migrants,
children, persons with disabilities and people in vulnerable situations and the right

750
Largest Emitters of CO2 Worldwide (2015) Statistic <http://www.statista.com/statistics/271748/the-largest-
emitters-of-co2-in-the-world/>.
751
Fiona Harvey, ‘The Kyoto Protocol Is Not Quite Dead’ The Guardian, 27 November 2012
<http://www.theguardian.com/environment/2012/nov/26/kyoto-protocol-not-dead>.
752
Kyoto Protocol Annex B.
753
In the years leading up to the Paris Agreement, two critical declarations resulted from climate change
negotiations that formed the basis of the Paris Agreement negotiations. These were: Conference of the Parties,
United Nations Framework Convention on Climate Change, The Cancun Agreements: Outcome of the work of
the Ad Hoc Working Group on Long-term Cooperative Action under the Convention, UN Doc
FCCC/CP/2010/7/Add.I (15 March 2011) (Cancun Agreements); Conference of the Parties, United Nations
Framework Convention on Climate Change, Report of the Conference of the Parties on its fifteenth session, held
in Copenhagen from 7 to 19 December 2009, Part Two: Action taken by the Conference of the Parties at the
fifteenth session, UN Doc FCCC/CP/2009/11/Add.1 (30 March 2010) (Copenhagen Accord). The Copenhagen
Accord is important because countries made specific pledges to cut GHG emissions and other commitments
were made in relation to climate finance. However, the legal status of the Copenhagen Accord was unclear. The
Cancun Agreements affirm the Copenhagen Accord and it was formally adopted.
 to development, as well as gender equality, empowerment of women and
intergenerational equity (reflective of criterion 2).

Some may argue that the Preamble provisions on human rights do not go far enough to
incorporate a rights-based approach. This is a valid point, as human rights is not expressly
referred to again or weaved throughout the treaty, so human rights do not appear to have
informed the Paris Agreement’s provisions in a direct or profound way. From a perhaps more
optimistic viewpoint, this instrument is the closest an international environmental instrument
has come to explicitly incorporating human rights principles. As a result, the Paris Agreement
could set the trend for an improved integration of human rights principles into international
climate law. It is also the first climate change agreement to explicitly refer to food security.
Taken together, the reference to human rights in the agreement combined with the
acknowledgement that certain groups are more vulnerable to food insecurity lends support to
further developments in a RBA to FS in the context of climate change.

The Paris Agreement commits all countries, developed and developing, to take actions
to mitigate and adapt to climate. It also sets up a number of financing, technology-sharing
and capacity-building arrangements that could progress a RBA to FS in least developed and
small island developing states.

(a) Mitigation

In certain ways, the Paris Agreement and the Kyoto Protocol are similar. Both
agreements involve: setting reduction targets, accounting for land use activities that withdraw
carbon to help meet these targets and the periodic reporting by countries. However, the Paris
Agreement differs from the Kyoto Protocol in its design. Under the Kyoto Protocol,
developed countries are assigned a reduction target. In contrast, the Paris Agreement sets a
general target for developed and developing countries, then each party determines how they
will meet it.

Article 4 provides that developed country parties must have ‘economy-wide absolute
emission reduction targets’.754 Incidentally then, developed states must commit to reducing
emissions in agriculture because they are required to have economy-wide reductions.
Conversely, developing countries must enhance their mitigation efforts and move towards an

754
Paris Agreement art 4(4).
economy-wide emissions reduction or limitation target.755 Therefore, developing countries
have flexibility in the targets they set. The difference in obligations between developed and
developing is consistent with criterion 2 of a RBA to FS, which requires special treatment
and support for vulnerable or marginalised groups.

Each party has determined their own reduction and adaptation commitments and plans,
which are termed Intended Nationally Determined Contributions (INDCs). The first
assessment of the implementation of INDCs is set for the year 2023 and then every five years
afterwards.756 Parties are obligated to account for ‘their anthropogenic emissions and
removals corresponding to their nationally determined contributions’.757 The accounting for
removals by changes in land use must be in a manner consistent with the existing methods
and guidelines under the UNFCCC.758

Critically, Article 4(7) states that ‘Mitigation co-benefits resulting from Parties’
adaptation actions and/or economic diversification plans can contribute to mitigation
outcomes under this article’. This directly addresses the critique above regarding the Kyoto
Protocol’s failure to consider co-benefits. It was observed that not accounting for co-benefits
adversely affects the ability of the climate change regime to enable a RBA to FS. Under the
Paris Agreement, the ability to account for mitigation co-benefits could promote regulatory
frameworks that facilitate sustainable soil management and therefore agroecological
practices. In this regard then, the Paris Agreement is consistent with criterion 4 of a RBA to
FS.

Under their INDCs, countries can decide whether to account for emissions and
withdrawals related to soils. Of the 161 INDCs, 103 include mitigation measures related to
agriculture and of these:

 15 referred to agroforestry;

 17 referred to fertiliser use;

 22 referred to the restoration of degraded land, soil or forests;

755
Ibid.
756
Paris Agreement art 14(2).
757
Ibid art 4(13).
758
Paris Agreement art 4 [13]-[14]. Note that parties are encouraged to review and update their INDCs every
five years and are required to communicate their INDCs every five years. This is contained in art 4(9), as well as
in the attached decision to the agreement.
  9 referred to soils on wetlands;

 8 referred to soil carbon;

 11 referred to climate-smart agriculture as mitigation measures.759

These mitigation measures are notable here because they are directly relevant to soil
quality, agroecology and food security. In order to be more consistent with criterion 4 of a
RBA to FS, it would have been preferable to see soil carbon play a larger role in mitigation
strategies.

Generally, developed countries refer in their INDCs to reducing emissions in

agriculture and fostering carbon sinks, with some explicitly referring to agricultural soils.760
All INDCs provided by middle-income countries discussed their intentions to develop or
strengthen climate-smart agricultural programs, which could be facilitated through soil
conservation.761 China, in particular, made detail pledges relevant to soil and agricultural land
uses. Along with specific reduction commitments,762 China pledged to achieve zero growth of
fertiliser and pesticide use by 2020 and to construct a ‘recyclable agricultural system’ that

759
Meryl Richards et al, ‘How Countries Plan to Address Agricultural Adaptation and Mitigation: An Analysis
of Intended Nationally Determined Contributions’ (Information Note, CGIAR Research Program on Climate
Change, Agriculture and Food Security, 2015) 3–4 <https://cgspace.cgiar.org/rest/bitstreams/63683/retrieve>.
760
New Zealand, ‘New Zealand’s Intended Nationally Determined Contribution’, Intended Nationally
Determined Contribution to the United Nations Framework Convention on Climate Change (7 July 2015);
Australia, ‘Australia’s Intended National Determined Contribution to a new Climate Change Agreement’,
Intended Nationally Determined Contribution to the United Nations Framework Convention on Climate Change
(August 2015); Lativia and the European Commission on behalf of the European Union and its Member States,
‘Intended Nationally Determined Contribution of the EU and its Member States’, Intended Nationally
Determined Contribution to the United Nations Framework Convention on Climate Change (6 March 2015);
The United States, ‘Intended nationally determined contribution as well as information to facilitate the clarity
transparency and understanding of the contribution’ Intended Nationally Determined Contribution to the United
Nations Framework Convention on Climate Change (31 March 2015); Canada, Canada’s INDC Submission to
the UNFCCC, Intended Nationally Determined Contribution to the United Nations Framework Convention on
Climate Change (3 June 2015).
761
This generalisation was based on the intended nationally determined contributions from Brazil, India, Mexico
and Argentina. Indonesia was not specific on the programs or actions it would take to reduce emissions from
agriculture. Federative Republic of Brazil, ‘Intended Nationally Determined Contribution: United Nations
Framework Convention on Climate Change’, Intended Nationally Determined Contribution to the United
Nations Framework Convention on Climate Change (28 September 2015); India, ‘Intended Nationally
Determined Contribution: Working Towards Climate Justice’ Intended Nationally Determined Contribution to
the United Nations Framework Convention on Climate Change (1 October 2015) 20-21; Mexico, ‘Intended
Nationally Determined Contribution’, Intended Nationally Determined Contribution to the United Nations
Framework Convention on Climate Change (30 May 2015) 4-5; Argentina, ‘Intended Nationally Determined
Contribution’, Intended Nationally Determined Contribution to the United Nations Framework Convention on
Climate Change (1 October 2015) (Unofficial translation).
762
China agreed to lower carbon emissions per unit of GDP by 60 per cent to 65 per cent, to increase the use of
non-fossil fuels by around 20 per cent; to increase forest stock volume by 4.5 billion cubic meters on the 2005
level and to peak its emissions around the year 2030.
aims to re-use animal waste (methods that are consistent with increasing the carbon stored in
soils).763

(b) Adaptation

Article 7 of the Paris Agreement deals with adaptation to climate change, which is
relevant as increasing soil carbon content makes agricultural systems more resilient to
climate-related shocks. In particular, parties acknowledged in Article 7(5) that:

[a]daptation action should follow a country-driven, gender-responsive, participatory

and fully transparent approach, taking into consideration vulnerably groups,
communities and ecosystems.

The above provision promotes a RBA to FS in the context of climate change

adaptation. Firstly, it draws attention to vulnerable groups and communities (criterion 2) and
secondly, it incorporates human rights principles (transparency, participation, equality)
(criterion 3). The provision continues as follows:

[a]daptation action… should be based on and guided by the best available science
and, as appropriate, traditional knowledge, knowledge of indigenous peoples and
local knowledge systems with a view to integrating adaptation into relevant
socioeconomic and environmental policies and actions where appropriate.764

The references to science and traditional knowledge are directly applicable to

agroecology, which is a science that incorporates traditional knowledge and approaches as
well as various scientific disciplines (criterion 4). Furthermore, the consideration of
indigenous, traditional and local knowledge is consistent with human rights to culture and
may help create an enabling environment for the realisation of the human right to enjoy the
benefits of scientific progress.765 Thus, the provision is compatible with criterion 1 of a RBA
to FS, which requires provisions that are compatible with the realisation of human rights.

In their INDCs, 102 parties included agricultural adaptation measures. From these, 20
parties listed agroecology as one of their main adaptation measures, 31 cited soil and land

763
People’s Republic of China, ‘China’s Intended Nationally Determined Contributions’, Intended Nationally
Determined Contribution to the United Nations Framework Convention on Climate Change (Unofficial
translation) (30 June 2015) 9.
764
Paris Agreement art 7(5).
765
ICESCR art 15(1)(a)-(b).
management, 29 cited climate-smart agriculture and 22 cited agroforestry.766 Most of these
countries were developing, as developed countries tended to not discuss agricultural
adaptation measures. To an extent, developed countries’ approach to agricultural adaptation
reflects a narrow understanding of food security in which the impacts of climate change on
food security are thought to be a ‘developing country issue’.767

(c) Climate Finance

Finance, capacity building and technology transfer from developed to developing

countries is required to enable resource-poor countries to conduct their agricultural mitigation
and adaptation measures, including the improvement of soil carbon sequestration. At Article
9 of the Paris Agreement it was agreed that ‘developed country parties should continue to
take the lead in mobilizing climate finance from a wide variety of sources, instruments and
channels, noting the significant role of public funds…’.

Article 9, and particularly its acknowledgement of the importance of public funding, is

significant for enabling a RBA to FS. Generally, the start-up costs involved in establishing a
soil carbon project in low-income developing countries are high, and the returns on
investment can take over a decade depending on the project.768 For instance, agroforestry
takes a long time to generate carbon credits because trees take a long time to grow, while
projects that enrol multiple small-scale farmers will have high transaction costs.769 Foster and
Neufeldt explained that, from a project perspective, start-up costs include ‘contract
negotiation, project implementation and management, extension service and training,
monitoring, reporting and verification of sequestered carbon and distribution of carbon
revenue to farmers’.770 For these reasons, private investors may be initially unwilling to
finance such projects due to the high risk involved and the long-term nature of the investment

766
Richards et al, above n 754, 2.
767
The lack of attention given to adaptation measures is a common trend in developed countries. See, eg,
Frédéric Gagnon-Lebrun and Shardul Agrawala, ‘Progress on Adaptation to Climate Change in Developed
Countries: An Analysis of Broad Trends’ (ENV/EPOC/GSP(2006)1/FINAL, Organisation for Economic Co-
operation and Development, May 2006) 11 <http://www.oecd.org/env/cc/37178873.pdf> where the authors
explain ‘In recent years adaptation to climate change impacts has slowly established itself as an important and
complementary response to greenhouse gas (GHG) mitigation. However, adaptation is still regarded as a priority
primarily for developing countries’.
768
See, eg, Rohit Jindal, Brent Swallow and John Ker (2008) ‘Forestry-based carbon sequestration projects in
Africa: Potential benefits and challenges’ 32 Natural Resources Forum 116.
769
See, eg, Carlos Perez (2007) ‘Can carbon sequestration markets benefit low-income producers in semi-arid
Africa? Potentials and challenges’ 94(1) Agricultural Systems 2; Kristi Foster et al, Climate Finance for
Agriculture and Livelihoods (Policy Brief, World Agroforestry Centre, 2014).
770
Kristi Foster and Henry Neufeldt (2014) ‘Biocarbon projects in agroforestry: lessons from the past for future
development’ 6 Current Opinion in Environmental Sustainability 148, 151.
returns. As a result, initial public investment in soil carbon sequestration projects is vital to
developing agricultural soil carbon sequestration projects that benefit food insecure, small-
scale farmers.771

Article 9 also draws attention to the specific needs of states that are particularly
vulnerable to climate change and notes that the provision of finance should ‘aim to achieve a
balance between adaptation and mitigation’.772 This is consistent with criterion 2 of a RBA to
FS, as it draws attention to the needs of those most vulnerable. Furthermore, the emphasis
placed on balancing adaptation and mitigation funding is important for long-term food
security. Adaptation has generally received far less funding than mitigation, but adapting
agricultural systems to new climatic conditions is critical for a RBA to FS (criterion 4 in
particular). In addition, improving soil carbon sequestration is both an adaptation and
mitigation strategy; thus, integrated approaches to climate finance, illustrated in Article 9 by
the provision’s equal emphasis on climate mitigation and adaptation finance, may help make
soil carbon sequestration projects more appealing and financially viable.

Despite the Paris Agreement’s contributions to improving soil carbon stocks and food
security, the instrument contains no binding climate finance target nor does it provide specific
support for developing countries to estimate their climate finance needs.773 Subsequently,
commentators have criticised the agreement for being deliberately vague on financial
matters.774 Ambiguity regarding finance within the agreement is not compatible with criterion
3 of a RBA to FS, which requires clear, consistent regulatory instruments as part of
strengthening the rule of law. Additionally, the lack of a binding target within the agreement
poses issues for ensuring compliance and holding actors accountable.

771
For more details regarding the issues and potential responses to small-scale farmer carbon sequestration
projects, see Seth Shames, Louise E. Buck, Sara J. Scherr, ‘Reducing Costs and Improving Benefits in
Smallholder Agriculture Carbon Projects: Implications for Going to Scale’ in Eva Wollenberg et al (eds),
Climate Change Mitigation and Agriculture (Routledge 2012).
772
Paris Agreement art 9(4).
773
In the Copenhagen Accord, above n 741, developed countries promised to collectively mobilise USD $100
billion for climate adaptation and mitigation in developing countries each year from 2020 to 2025. The Paris
Agreement does not mention this target. However, in the adoption part of the agreement, para 54 states that
‘developed countries intend to continue their existing collective mobilization goal through 2025 in the context of
meaningful mitigation actions and transparency on implementation prior to 2024 the Conference of Parties
serving as the meeting of the Parties to the Paris Agreement shall set a new collective quantified goal from a
floor of USD 100 billion per year, taking into account the needs and priorities of developing countries’.
774
Timmons Roberts and Romain Weikmans, The Unfinished Agenda of the Paris Climate Talks: Finance to the
Global South (22 December 2015) The Brookings Institution
<http://www.brookings.edu/blogs/planetpolicy/posts/2015/12/22-cop21-unfinished-agenda-finance-global-
south-roberts-weikmans>; Liane Schalatek, Lili Fuhr and Jan Kowalzig, ‘Climate Finance in the Paris
Agreement’ <http://www.germanclimatefinance.de/2015/12/21/climate-finance-paris-agreement/>.
 (d) Summary

Overall, the Paris Agreement is a significant advance in creating an enabling

framework to respond to the impacts of climate change, including on food security and
agriculture. Markedly, the agreement contains references in its preamble to human rights and
food security, which sets it apart from all other international environmental agreements and
may facilitate future developments in the context of a RBA to FS. The recognition of
mitigation co-benefits in Article 4 is critical for promoting sustainable soil management for
food security. Furthermore, agriculture was generally a focus of INDCs. References to
agricultural soils in INDCs were mostly lacking and the unclear provisions on climate finance
may be an issue for developing countries in planning for and taking soil-related adaptation
measures.

5.4 NON-BINDING

Less constrained by political factors, non-binding instruments in the area of sustainable

soil management and food security are innovative. These instruments tend to acknowledge
the interface between food security and sustainable soil management, such a connection is not
as clearly established in binding international legal instruments.775 Furthermore, evidence
from a variety of states’ laws and policies suggest that these non-binding instruments have
been incorporated into domestic or regional frameworks.776 Having said this, soil degradation
and related food insecurity issues continue, suggesting that implementation has been poor.

A novel soil-related instrument, the ‘4 per 1000 initiative’, was released in December
2015 at a side-event to the UNFCCC Paris negotiations. This will be the focus of this section,
which is followed by a brief discussion on the range of other non-binding instruments seeking
to regulate agricultural soils.

5.4.1 ‘4 per 1000’ Initiative

During the negotiations for the Paris Agreement, the French Government released its ‘4
per 1000’, which is more direct and practical than the Paris Agreement at dealing with the

775
Greater Focus on Soil Health Needed to Feed a Hungry Planet (5 December 2013) Food and Agriculture
Organisation of the United Nations <http://www.fao.org/news/story/en/item/209369/icode/>.
776
See, eg, Revised European Charter for the Protection and Sustainable Management of Soil (Adopted by the
Committee of Ministers) [2003] item 9.1, Appendix 28; Andrew Campbell, Australian Government, Department
of Agriculture, Fisheries and Forestry, Managing Australia’s Soils: A Policy Discussion Paper (2008) 10;
Resource Management Act (1991) (NZ). See also, Hannam and Boer, above n 620; Frederick Steiner, ‘Soil
Conservation Policy in the United States’ (1987) 11 Environmental Management 209.
links between agricultural soils, climate change and food security. The broad aim of this
initiative is to increase the amount of carbon stored in soil through agricultural practices,
including agroecology, agroforestry and sustainable soil management.777

The 0.4 per cent reference in the initiative refers to an estimate of how much soil
carbon pools would need to be increased by each year to stop the present increase of carbon
in the atmosphere. The report on the initiative explains that the 0.4 per cent reference ‘[i]s
intended to show that even a small increase in soil carbon stock is crucial to improve soil
fertility and agricultural production and to contribute to achieving the long-term objective of
limiting the temperature increase’.778 Thus, the core purpose of this initiative is centred on
raising awareness about the potential of agricultural soils and particular agricultural practices
to contribute to climate change mitigation and food security. This approach seems consistent
with criterion 4 of a RBA to FS, because it addresses the lack of international attention on
agricultural soil degradation in the context of food security and climate change.779

The initiative has two pillars. The first is a multi-stakeholder initiative involving state
and non-state actors (specifically companies, local authorities, farmer organisations, NGOs
and research institutions). The second is the international research and scientific cooperation
program. In terms of governance, the initiative intends to have meetings with all partners
(consistent with participation and transparency) and the French Government has established
an executive committee and a scientific technical committee.

In relation to the multi-stakeholder initiative, parties to the initiative have signed a joint
declaration to undertake to ‘maintain or enhance soil carbon stock on as many agricultural
soils as possible and to preserve carbon-rich soils’.780 On signing the initiative’s joint
declaration, an entity must set relevant targets for itself, provide an action plan, identify the
resources it will dedicate and provide a timetable for achieving its target.781

Countries that have signed the joint declaration include large agricultural exporters
including Australia, United Kingdom, Mexico, Ireland, Netherlands, Germany, New Zealand,

777
‘Join the 4% Initiative: Soils for Food Security and Climate’ (French Ministry of Agriculture, Agrifood and
Forestry, 2015) 3 <http://newsroom.unfccc.int/media/408539/4-per-1000-initiative.pdf>.
778
Ibid 2.
779
The lack of international attention on soil degradation was discussed above in part 2.
780
‘Join the 4% Initiative: Soils for Food Security and Climate’, above n 772, 3.
781
Join the 4/1000 Initiative - Soils for Food Security and Climate (2015) United Nations Framework
Convention on Climate Change <http://newsroom.unfccc.int/lpaa/agriculture/join-the-41000-initiative-soils-for-
food-security-and-climate/>.
France and Japan and developing countries including Costa Rica, Ethiopia and Uruguay.782
Although other large agricultural countries such as China and the USA did not sign up to the
initiative, the range of states supporting the target suggests that it has political legitimacy.

A variety of non-state actors have also pledged support by setting a target and an action
plan. Generally, these non-state actors were research institutions and NGOs such as the
Consultative Group for International Agricultural Research (termed CGIAR), which is a well-
established, large global network of research institutions working in the area of agriculture.
Other non-state actors included the FAO. Subsequently, the social and institutional
legitimacy that supporters to the initiative bring is a positive development in terms of
effective action on improving soils for food security. Yet, only four companies, none of
which are large TNCs, have signed up to the initiative, which is a limitation given their
critical role in agriculture.

In relation to the research and scientific cooperation program, the initiative seeks to
mobilise and attract new funding to address the gaps in knowledge and technology
concerning agricultural soils, which were outlined above in relation to the difficulties of
implementing the Kyoto Protocol. It is unclear how the initiative intends to do this, but it is
likely an intended output of the initiative’s awareness-raising purpose. Attracting new
funding for research into agricultural soils is critical in light of the historical lack of funding
for research on soils and in order for countries to be able to account for withdrawals from
agricultural soils. In order to align with a RBA to FS, any funding attracted for research into
agricultural soils should provide for the public dissemination on information where possible.

5.4.2 Other Non-Binding instruments

The table below outlines the key non-binding instruments and their provisions. Non-
binding documents that only indirectly deal with agricultural soils and their relationship to
food security have been excluded from the table.783

782
Partners (2015) 4 Pour 1000 <http://4p1000.org/partners>.
783
These include: Agenda 21: Programme of Action for Sustainable Development, UN GAOR, 46th Sess.,
Agenda Item 21, UN Doc A/Conf.151/26 (14 June 1992) and the 1992 Rio Declaration on Environment and
Development, UN Doc. A/CONF.151/26 (vol. I) / 31 ILM 874 (12 August 1992).
Instrument  Administering  Relevant Provisions 
Institution 
World Soil  FAO  Recognises that: 
 Soil is a finite resource. 
Charter784 
 Good soil governance means accounting for and respecting the different ecosystem services provided 
by soil and ensuring that ‘land use … respects the range of capabilities …encouraged with a view to 
eradicating poverty and achieving food security’.785 
 Measures need to be adopted at the local level with use of ‘local and indigenous knowledge’. 
States are encouraged to: 
 Create an environment in which ‘obstacles to the adoption of sustainable soil management’ are 
overcome including those obstacles associated with ‘land tenure, the rights of users, access to financial 
services and educational programmes’.786 
Individuals and the private sector are to: 
 Act as ‘stewards of the soil’ by ensuring that this ‘essential natural resource is managed sustainably to 
safeguard it for future generations’.787 
 Adopt sustainable soil management practices in the production of goods and services. 
World Soils  UNEP  Recognises that: 
 Soil is a finite resource; 
Policy788 
 Governments need to sustainably use soil, prevent erosion and degradation, and reduce the loss of 
quality farmland to non‐farm purposes.789 
Encourages governments to: 

784
Food and Agriculture Organization of the United Nations, World Soil Charter, Appendix 1, Keeping the Land Alive: FAO Soils Bulletin 50 (1982) (World Soil Charter).
785
Ibid principle 2(2)
786
Ibid, actions by government, para 2.
787
Ibid, actions by individuals and the private sector, para 1.
788
United Nations Environment Program, World Soils Policy, (1982).
789
Ibid.

Chapter 5: Soil 195

 
Use tax exemptions, subsidies and credit facilities to encourage the sustainable use of soil by land 
users. 
 Establish legislative and institutional frameworks that monitor soil conservation and management.  
 Actively pursue research needed to develop systems of farming that increase food availability and 
protect resources. 790 
Encourages international institutions to: 
 Focus on ‘the needs of agricultural development projects which include conservation and improvement 
of soil and water resources, provision of inputs and incentives at the farm level and establishment of 
the necessary institutional structures…’.791 
Voluntary  FAO  Guideline 8E: ‘States should consider specific national policies, legal instruments and supporting mechanisms 
Guidelines  to protect ecological sustainability and the carrying capacity of ecosystems to ensure the possibility for 
to the Right  increased, sustainable food production for present and future generations…[and] protect the fertility of the 
to Food  soil…’792 
Rio de  United Nations  Recognises: 
Janeiro 
Conference on   The economic and social significance of ‘…good land management, including soil, particularly its 
(Brazil) in 
contribution to economic growth, biodiversity, sustainable agriculture and food security…’.793 
June 2012,  Sustainable 
 The vital need to mitigate ‘…desertification, land degradation and drought, including by …improving 
“The Future 
Development   soil quality’.794 
We Want” 
Table 5.2 Non-Binding Instruments Regulating Land Use and Soil

790
Ibid 2 para (b)(xi).
791
Ibid para (a)(v).
792
Right to Food Guidelines.
793
United Nations, Report of the United Nations Conference on Sustainable Development, A/CONF.216/16 A/66/L.56 (2012). In particular, the Outcome Document: Future
we want, Annex from A/66/L.56 (2012) para 205.
794
Ibid para 207.

196 Chapter 5: Soil

 This table reveals that a range of non-binding instruments have been
formulated concerning soils. Except for the ‘Voluntary Guidelines on the Right to
Food’, the instruments above do not refer to or incorporate human rights, but they
tend to be consistent with a RBA to FS due to their intergenerational considerations,
which is compatible with criterion 4. There seems to be a lack of integration between
these instruments and with the legally binding agreements previously discussed, as
none of these policies or the binding agreements make reference to each other.795
This is a concern for criterion 3 of a RBA to FS, which encompasses the need for
coherent and enabling regulatory frameworks.

5.5 CONCLUSION

Over the last two decades, there have been significant developments in the
international regulation of agricultural soils. This trend reflects a growing awareness
among policy-makers of the vital services provided by soils and the importance of
sustainable land use. Generally, the UNCCD and the agreements reached under the
UNFCCC, as well as the range of non-binding instruments, have provided guidance
to states regarding how to regulate for sustainable soil management. Accordingly,
these instruments are loosely supportive of criterion 4 of a RBA to FS.

The framework for soil is fragmented, as each instrument operates alone

without an integrated regulatory approach. For instance, the text of the UNCCD does
not acknowledge the UNFCCC. This lack of coordination could reduce the ability of
the UNCCD to mobilise funds available under the UNFCCC for sustainable soil
management projects. Arguably, a more coordinated approach is required in order to
build momentum and mobilise resources around sustainable soil management. Such a
response is further required under criterion 3 of a RBA to FS as part of strengthening
the rule of law.

While it is too early to comment on the implementation of the Paris

Agreement, the UNCCD and the Kyoto Protocol had low levels of implementation.
This suggests that other mechanisms are required to help realise the goals and
principles they contain in the context of food security, climate change and

795
Note the UNCCD has made reference in some of its recent decisions. See the discussion above on
UNCCD implementation.
agricultural soils. The ‘4 per 1000’ initiative is an example of the kinds of targeted,
innovative mechanisms required for a RBA to FS in this area. This is because the
instrument seeks to address the research gaps concerning agricultural soils,
acknowledges the connections between food security and soil carbon sequestration,
and promotes agroecological methods. Recalling the suggestion that, instead of a soil
treaty, an optional protocol under the UNFCCC may be more efficient and effective,
the ‘4 per 1000’ initiative could act as a blueprint for such a protocol.

As international environmental law and policy instruments have developed in

isolation from human rights law, these instruments have not adopted a RBA to the
sustainable management of agricultural soils nor is there a coordinated, coherent
regulatory framework for soils in the context of food security. Yet, the Paris
Agreement and the Voluntary Guidelines on the Right to Food (in the table above)
signify an increasing integration of human rights principles with environmental law.
 Water

6.1 OVERVIEW

This chapter examines the public international regulatory instruments that regulate
water use in agriculture against a RBA to FS. The chapter begins by outlining the key fresh
water issues that agriculture contributes to and is threatened by, and exploring the
relationship between the human right to water and the right to food. This part finds that a
RBA to FS requires water management that increases food security, while reducing the
impact of agriculture on water in order to protect and fulfil the human right to water.

The rest of the chapter focuses on the two main international legal instruments dealing
with fresh water and compares these frameworks against a RBA to FS. These international
instruments are: 1997 UN Convention on the Law of the Non-Navigational Uses of
International Watercourses and the Convention on the Protection and Use of Transboundary
Watercourses and International Lakes. Although these instruments do not explicitly adopt a
RBA, they are compatible with a RBA to FS. Future developments in international law
should seek to better integrate human rights and the regulation of the natural resources, such
as fresh water, that are required for agriculture.

Overall, this chapter finds significant gaps in the international regulation of water used
in agriculture. Specifically, international water law provides insufficient coverage of
groundwater use and tends to overlook domestic water sources. Accordingly, binding
instruments to regulate the use and quality of groundwater and domestic water sources should
be developed in order to ensure long-term food security and protect the human right to water.
Additionally, this chapter reveals a lack of integration between the regimes outlined in the
previous chapter concerning land and soil and the international instruments regulating water.
As water and land management are ecologically connected and critical to agriculture and
food security, this chapter identifies the need for a more integrated approach to their
regulation.
6.2 FRESH WATER AND FOOD SECURITY: CHALLENGES, OPPORTUNITIES
AND RIGHTS

6.2.1 Fresh Water and Agriculture

Fresh water can be a renewable or a non-renewable resource.796 Renewable fresh water

resources are essentially those fresh water sources that are part of the hydrologic cycle.797
The hydrologic cycle refers to water flowing in and out of rivers, and water being stocked in
above and below ground pools.798 The amount of renewable fresh water is limited, as when a
portion is used, less is available until the hydrologic cycle refreshes the source.799 Gleick, a
leading environmental scientist, explained that:

When more water goes in than comes out, the amount of water stored goes up. When
more water goes out than comes in, the water in storage goes down. Balance. Add a
new demand …and less water remains: either water levels drop or surface flows
decrease. There is no alternative.800

Rain-fed agriculture is dependent on renewable fresh water sources. It is the

predominant approach to watering crops, as 80 per cent of crops are rain-fed, which accounts
for about 60 per cent of global agricultural output.801 Rain-fed agriculture is often described
as having a large and untapped potential because substantial gaps exist between the amount
of food that could be produced and the amount of food that actually is produced by rain-fed
systems.802 Rain-fed agricultural systems are especially vulnerable to droughts and other

796
Note though that the distinction between non-renewable and renewable fresh water resources is fairly
arbitrary, as renewable fresh water resources effectively become non-renewable when humans disrupt the
natural cycle by using water so rapidly. See, Igor Shiklomanov, ‘World Fresh Water Resources’ in Peter Gleick
(ed), Water in Crisis: A guide to the World’s Fresh Water Resources (Pacific Institute for Studies in
Development, Environment, and Security and Oxford University Press, 1993) 13, 15 where it is stated that
‘When slowly renewed resources are used by humans at a rapid rate, they effectively become non-renewable
resources with subsequent disruptions of the natural cycle’.
797
The hydrologic cycle is where water travels from the ocean to the air, falls to the Earth as rain and finally
travels back to oceans again through rivers to repeat the cycle. See, eg, Taikan Oki and Shinjiro Kanae, ‘Global
Hydrological Cycles and World Water Resources’ (2006) 313 Science 1068.
798
Food and Agriculture Organisation, Review of World Water Resources by Country: Water Reports 23- Part 2
Concepts and Definitions (2003) FAO Corporate Document Repository
< http://www.fao.org/docrep/005/y4473e/y4473e00.htm#Contents>.
799
Eyal Benvenisti, ‘Collective Action in the Utilization of Shared Fresh water: The Challenges of International
Water Resources Law’ (1996) 90 The American Journal of International Law 384, 388.
800
Peter H Gleick, Bottled and Sold: The Story Behind Our Obsession with Bottled Water (Island Press, 2010)
67.
801
Linda Collette et al, ‘Save and Grow: A Policymaker’s Guide to the Sustainable Intensification of
Smallholder Crop Production’ (Food and Agricultural Organization of the United Nations, 2011) 53
<http://www.fao.org/ag/save-and-grow/index_en.html>.
802
Suhas Pralhad Wani, Johan Rockström and Y Ramakishna, ‘Rainfed Agriculture- Past Trends and Future
Prospects’ in Suhas Pralhad Wani, Johan Rockström and Theib Yousef Oweis (eds), Rainfed Agriculture:
weather or climatic changes. However, Rockstrom et al found that improved farm level water
management, which relies on the improvement of soil using agroecological methods and land
tenure security, can prevent rain-fed food production declining during a drought.803
Moreover, rain-fed agriculture is improved where effective water harvesting techniques are
employed,804 and if the water harvested is used on farms in a way that effectively infiltrates
the root zones of crops.805

Non-renewable fresh water resources are generally groundwater bodies of waters that
have a minimal rate of recharge.806 Groundwater makes up 30.1 per cent of fresh water
reserves on Earth, which is a stark contrast to the 0.006 percent located in rivers and the 0.26
percent found in lakes.807 Irrigated agriculture is a main user of groundwater.808 Around 15-
35 per cent of groundwater withdrawals for irrigated agriculture are considered unsustainable
in the sense that the withdrawal outstrips renewable supply.809 Another study examined 37 of
the world’s largest groundwater sources and found that 21 of these acquirers were being used
at a faster rate than they recharged and 11 of these are being critically overused.810

A substantial amount of scientific uncertainty surrounds groundwater because it is

difficult and costly to measure and monitor the flow of water underground and to determine
the effects of water withdrawal.811 These factors mean that the unsustainability of

Unlocking the Potential (CABI, 2009) vol 7, 1, 5.

803
Johan Rockström et al, ‘Managing Water in Rainfed agriculture—The Need for a Paradigm Shift’ (2010) 97
Agricultural Water Management 543, 545.
804
Critchley and Siegert defined water harvesting as ‘the collection of runoff for productive purposes’. See,
Will Critchley and Klaus Siegert, ‘A Manual for the Design and Construction of Water Harvesting Schemes for
Plant Production’ (AGL/MISC/17/91, Food and Agricultural Organization of the United Nations, 1991) para 1.1
<http://www.fao.org/docrep/u3160e/u3160e00.htm#Contents>.There are many different methods for water
harvesting, and these methods can be large-scale (eg dams, wells, floodwater diversion) or more small-scale (eg
rainwater can be redirected from roofs into tanks,
805
Rockström et al, above n 798.
806
‘Review of World Water Resources by Country’ (Water Reports 23, Food and Agricultural Organization of
the United Nations, 2003) 3 <http://www.fao.org/docrep/005/y4473e/y4473e00.htm#Contents>.
807
Shiklomanov, above n 791, 13.
808
Irrigated agriculture is the application of water by humans to the soil, and it can take a number of forms such
as surface irrigation (pouring water onto crops) or drip irrigation (pipes are used to drip water onto root zone of
crops). Although irrigated agriculture is a main user of groundwater, it can use surface or rain water.
809
World Development Report 2008: Agriculture for Development (The World Bank, 2007) 182.
810
Alexandra S Richey et al, ‘Quantifying Renewable Groundwater Stress with GRACE’ (2015) 51 Water
Resources Research 5217. In this study, the authors were determining the extent to which the world’s largest
aquifers were in stressed conditions. To do this, they examined the ratio of groundwater used to the groundwater
available. The amount of groundwater available is equated with the rate of recharge.
811
There have been improvements over the last decade with the use of satellites but it is still an area lacking in
the data required. Stephanie L Castle et al, ‘Groundwater Depletion during Drought Threatens Future Water
Security of the Colorado River Basin’ (2014) 41 Geophysical Research Letters 2014GL061055.
withdrawals may be more or less pronounced than what has been estimated.812 The demands
placed on groundwater and rates of recharge vary between years and groundwater sources,
and the methods of measuring groundwater sources lack a common methodology.813 Overall,
the impact of unsustainable groundwater use for agriculture and the implications this has for
future food security is difficult to quantify, but it is known that such unsustainable water uses
could threaten agriculture and food security.

6.2.2 Water Scarcity in the Context of Food Security and Agriculture

6.2.2.1 Impacts of water scarcity on food security
The three dimensions of water scarcity are: a physical lack of water availability
(‘physical water scarcity’), deficiencies in the infrastructure required to control, store,
distribute and access water, or a lack of institutional ability to deliver the required water
services (‘economic water scarcity’). Currently, an estimated 1.6 billion people live in areas
where economic water scarcity exists.814 Another 1.2 billion people live in areas where there
is physical water scarcity as a result of, for example, water pollution or competition for
water.815 Both physical and economic water scarcity are highly detrimental to food
security.816

In relation to agriculture, water shortages restrict the amount of food produced affecting
food availability, which in turn affects the price of food and therefore economic access to
food.817 From another perspective, drinking water could be considered food under
international standards, so technically it may form part of the right to food or otherwise be a
productive resource on which the right to food and food security relies.818

812
Moench et al explained: ‘While data limitations and other factors restrict the ability to quantify with any
degree of confidence whether or not groundwater over-abstraction and falling water levels have major
implications for aggregate food production and access, it is known that they could’. See,
Marcus Moench, Jacob Burke and Yarrow Moench, ‘Rethinking the Approach to Groundwater and Food
Security’ (Water Reports 24, Food and Agriculture Organisation of the United Nations, 2003) 38.
813
See, ‘Groundwater Management: The Search for Practical Approaches’ (Water Reports 25, FAO Land and
Water Development Division, the International Atomic Energy Agency, the United Nations Department of
Economic and Social Affairs, United Nations Educational, Scientific and Cultural Organization, 2003) ch 2.
814
David Molden et al, ‘Trends in Water and Agricultural Development’ in David Molden (ed), Water for Food,
Water for Life: A Comprehensive Assessment of Water Management in Agriculture (London: Earthscan and
Colombo: International Water Management Institute, 2007) 57, 57.
815
Ibid.
816
For an overview, see, Water and Food Security (23 October 2014) UN Water
<http://www.un.org/waterforlifedecade/food_security.shtml>.
817
See generally, ‘Water Security & the Global Water Agenda’ (Analytical Brief, UN Water, 2013)
<http://www.gwp.org/Global/ToolBox/References/Water%20Security%20and%20the%20Global%20Water%20
Agenda%20(A%20UN-Water%20Analytical%20Brief,%202013).pdf>.
818
According to the Codex Alimentarius Commission, Codex Alimentarius Procedural Manual, 24th ed. (Joint
 The distribution of water resources is grossly unequal between regions, amongst states
and within state borders.819 Empirical research shows that high levels of water scarcity
increase the risk of armed conflict, and can be a major factor driving international and civil
armed conflicts.820 This is relevant to food security because agriculture is typically reduced
during conflicts or, in some cases, production completely breaks down.821 Based on factors
such as low water availability and economic capacity, the following regions are most at risk
of violent conflicts related to water and food: Asia, South American and Africa.822

Water scarcity is not just an issue for food access, stability and availability, but also for
food safety. In particular, water runoff and soil erosion from agriculture is a leading cause of
nonpoint-source water pollution.823 This is because the water that flows off farms contains
nutrients and pesticides that flow into rivers and oceans affecting water quality and
ecosystems. Industrial agricultural practices, such as concentrated livestock operations and
the application of synthetic fertilisers, are a leading cause of eutrophication,824 which is
considered the most predominant global water quality problem in the world.825

FAO/WHO Food Standards Programme 2016) 23 where ‘food’ is defined as ‘any substance, whether processed,
semi-processed or raw, which is intended for human consumption, and includes drink, chewing gum and any
substance which has been used in the manufacture, preparation or treatment of “food” but does not include
cosmetics or tobacco or substances used only as drugs’. In reference to water being a productive resource on
which the right to food relies, recall that art 11(a) of the ICESCR provides that state parties need to ‘improve
methods of production…’ by ‘developing or reforming agrarian systems in such a way as to achieve the most
efficient development and utilization of natural resources’.
819
For an overview, see eg, U Manohar and M Mohan Kumar, ‘Modeling Equitable Distribution of Water:
Dynamic Inversion-Based Controller Approach’ (2014) 140 Journal of Water Resources Planning and
Management 607.
820
Peter H Gleick, ‘Water and Conflict: Fresh Water Resources and International Security’ (1993) 18
International Security 79; Wenche Hauge and Tanja Ellingsen, ‘Beyond Environmental Scarcity: Causal
Pathways to Conflict’ (1998) 35 Journal of Peace Research 299; Jennifer Song and Dale Whittington, ‘Why
Have Some Countries on International Rivers Been Successful Negotiating Treaties? A Global Perspective’
(2004) 40 Water Resources Research W05S06; Paul Hensel and Marit Brochmann, ‘Armed Conflict over
International Rivers: The Onset of Militarization of River Claims’ (2008)
<http://www.paulhensel.org/Research/apsa08r.pdf>; Ariel Dinar, Bridges Over Water: Understanding
Transboundary Water Conflict, Negotiation and Cooperation (World Scientific, 2007); For a more nuanced
understanding, see, L OhIsson, ‘Water Conflicts and Social Resource Scarcity’ (2000) 25 Physics and Chemistry
of the Earth, Part B: Hydrology, Oceans and Atmosphere 213.
821
For more information on the interface between food security and conflict, see eg, Slobodanka B Teodosijevic,
‘Armed Conflicts and Food Security’ (Working Paper 03-11, Agricultural and Development Economics Division
of the Food and Agriculture Organization of the United Nations (FAO - ESA), 2003) 34
<http://ideas.repec.org/p/fao/wpaper/0311.html>.
822
N K Gunasekara et al, ‘Water Conflict Risk due to Water Resource Availability and Unequal Distribution’
(2014) 28 Water Resources Management 169.
823
See, eg, David Pimentel et al, ‘Water Resources: Agricultural and Environmental Issues’ (2004) 54
BioScience 909.
824
Eutrophication occurs when fresh water sources have high, concentrated levels of phosphate and nitrate that
collapses eco-systems and creates harmful algae growth, which ultimately leads to rivers and lakes becoming
 A causal relationship exists between water quality and food-borne diseases. People are
exposed to infectious agents or toxic chemicals through ingesting foods that contain
contaminated water and ingesting foods that have been grown through the use of
contaminated irrigation.826 Generally, when water is scarce, poorer quality water will be used
in agriculture. This has implications for food security and human rights, including the right to
health and life.

Wastewater is particularly useful for urban and peri-urban farms; as large quantities of
municipal wastewater are generated by cities. Yet without appropriate collection and
treatment, the use of wastewater in agriculture is a significant food safety, environmental and
human health hazard.827 In many developing countries, wastewater is unregulated but
commonly used. Approximately, 20 million hectares across 50 countries is irrigated with
untreated or partially treated wastewater,828 and more than one-tenth of the world’s
population consumes crops irrigated with wastewater.829 Urban farmers in developing
countries are particularly likely to use highly polluted water, and thus related health problems
are disproportionately experienced by poor urban farmers and consumers in low to lower-
middle income countries.830

6.2.2.2 Drivers of water scarcity

Emerging drivers of water scarcity include population growth and the increasing
demand for food products that are water-intensive (eg animal products and ultra-processed
foods).831

dry land.
825
For more information on causes see, eg, Mindy Selman and Suzie Greenhalgh, ‘Eutrophication: Sources and
Drivers of Nutrient Pollution’ (Water Quality: Eutrophication and Hypoxia No.2, World Resources Institute,
June 2009) 8 <http://pdf.wri.org/eutrophication_sources_and_drivers.pdf>.
826
Roy M Kirby, Jamie Bartram and Richard Carr, ‘Water in Food Production and Processing: Quantity and
Quality Concerns’ (2003) 14 Food Control 283, 284.
827
M B Pescod, ‘Wastewater Treatment and Use in Agriculture’ (Food and Agriculture Organization, 1992) para
1.1.
828
United Nations, World Water Development Report, 3rd Water Forum (22 March 2003) 17.
829
Jac Smit and Joe Nasr, ‘Urban Agriculture for Sustainable Cities: Using Wastes and Idle Land and Water
Bodies as Resources’ (1992) 4 Environment and Urbanization 141, 143 citing "Paul Lunven, Presentation at
Urban Nutrition Conference, Mexico, Feburary 1992’.
830
The World Bank, above n 42, 16; See also, Stephanie Buechler, Gayathri Devi Mekala and Ben Keraita,
‘Wastewater Use for Urban and Peri-Urban Agriculture’ in René van Veenhuizen (ed), Cities Farming for the
Future - Urban Agriculture for Green and Productive Cities (RUAF Foundation, International Institute of Rural
Reconstruction, International Development Reseach Centre, 2006) 243 <http://www.ruaf.org/publications/cities-
farming-future-urban-agriculture-green-and-productive-cities>; Kurian et al, ‘Wastewater Re-Use for Peri-
Urban Agriculture: A Viable Option for Adaptive Water Management?’ (2013) 8 Sustainability science 47.
831
The nutrition transition was discussed in Chapter 2. It refers to the upward, international trends in the
adoption of Western diets. See, eg, Popkin and Gordon-Larsen, above n 94. The meat-based diet of Western
 Climate change will have a range of impacts on fresh water that will aggravate water
scarcity. These impacts include:

 Increases in droughts and floods;832

 Lessening of the snow cover in mountains inhibiting the ability of snow cover to
regulate river flows;833

 Changes in soil leading to less water filtration, more erosion and runoff;834

 Increases in the ocean water level that will impact on river flows in coastal regions
and lead to increased salinity of aquifers;835

 Increases in variability of the water resources available for irrigation;836 and

 Changes to the ozone that impact on crop growth rates and the use of water.837

Consequently, agriculture will need to be conducted in an increasingly water scarce

environment, food security must be improved using less water and the impacts of agriculture
on water quality needs to be significantly reduced.

Farming activities rely heavily on water to the extent that farming is a main driver of
water scarcity. In fact, agriculture is responsible for 69 per cent of fresh water withdrawals
worldwide.838 A range of farming practices can be used to improve water management on-
farms. These fall under the umbrella of agroecology and include external and on-farm water

countries clearly requires more energy, land and water resources than plant-based diets. For example, data
collected in California and analysed by Marlow et al found that ‘the non-vegetarian diet required 2.9 times more
water, 2.5 times more primary energy, 13 times more fertilizer, and 1.4 times more pesticides than did the
vegetarian diet. The greatest contribution to the differences came from the consumption of beef in the diet’. See,
Harold J Marlow et al, ‘Diet and the Environment: Does What You Eat Matter?’ (2009) 89 The American
Journal of Clinical Nutrition 1699S. See also, David Pimentel and Marcia Pimentel, ‘Sustainability of Meat-
Based and Plant-Based Diets and the Environment’ (2003) 78 The American Journal of Clinical Nutrition 660S.
832
Jean-Francois Donzier, ‘Global Challenges and the European Paradigm’ in Jacques Ganoulis, Alice Aureli
and Jean Fried (eds), Transboundary Water Resources Management: A Multidisciplinary Approach (Wiley, 1st
ed, 2013) 27, 27.
833
Nigel W Arnell, ‘Climate Change and Global Water Resources’ (1999) 9, Supplement 1 Global
Environmental Change S31.
834
Donzier, above n 827, 27.
835
Priyantha Sarukkalige Ranjan, So Kazama and Masaki Sawamoto, ‘Effects of Climate and Land Use
Changes on Groundwater Resources in Coastal Aquifers’ (2006) 80 Journal of Environmental Management 25.
836
Hugh Turral, Jacob Burke and Jean-Marc Faures, ‘Climate Change, Water and Food Security’ (FAO Water
Reports 36, Food and Agriculture Organisation of the United Nations, 2011) 18
<http://www.fao.org/docrep/014/i2096e/i2096e00.pdf>.
837
Ibid.
838
Water Withdrawal (2014) Food and Agriculture Organization of the United Nations
<http://www.fao.org/nr/water/aquastat/infographics/Withdrawal_eng.pdf>.
harvesting systems, sustainable soil management, agroforestry, crop rotation, mulching and
appropriate or improved crop varieties.839

In spite of these on-farm causes of water scarcity, the ultimate drivers of water scarcity
are poor governance arrangements, distributional inequities and a lack of political will. This
point was illustrated in a large, multi-institutional report entitled the Comprehensive
Assessment of Water Management in Agriculture, which critically evaluated the last fifty
years of water use and management. After examining the various issues intertwined in water,
agriculture and food security, the report concluded that: ‘The main reasons for water
problems are lack of commitment and targeted investment, insufficient human capacity,
ineffective institutions and poor governance’.840 Therefore, effective governance
arrangements at all levels are vital to responding to water scarcity and avoiding the negative
impacts of water scarcity on food security.

Although regulatory interventions at the farm level are essential, water and food
security issues must also be considered in broader food system context.841 For instance, meat-
based diets require significantly more water than a plant-based diet,842 and reductions in food
waste could increase the supply of food without requiring more water.843 As a result,
regulation must exist at both the production and consumption stages. In the last few years,
scholars have begun to examine sustainable diets and the regulatory approaches to
influencing consumer behaviour.844

839
See, Rockström et al, above n 798.
840
David Molden (ed), Water for Food, Water for Life: A Comprehensive Assessment of Water Management in
Agriculture (International Water Institute, Earthscan, 2007) 10
<http://www.iwmi.cgiar.org/assessment/files_new/synthesis/Summary_SynthesisBook.pdf>.page 19
841
David Molden et al, ‘A Water Productivity Framework for Understanding and Action’ in Jacob W Kijne,
Randolph Barker and David Molden (eds), Water Productivity in Agriculture: Limits and Opportunities for
Improvement (International Water Management Institute, 2003) 1, 17.
842
See, eg, Mesfin M Mekonnen and Arjen Hoestra, ‘A Global Assessment of the Water Footprint of Farm
Animal Products’ (2012) 15 Ecosystems 401 where the authors found that the water required to produce animal
products is far larger than the water required to grow crops of the equal nutritional value. For instance, milk,
eggs and chicken meat require 1.5 times more water than pulses.
843
See eg, Charlotte de Fraiture and Dennis Wichelns, ‘Satisfying Future Water Demands for Agriculture’
(2010) 97 Agricultural Water Management 502 where the authors considered four different avenues for
improving water productivity in agriculture. These avenues were: increasing investment in rain-fed agriculture;
increasing investment in irrigated agriculture; increasing agricultural trade from water abundant to water-short
areas or influencing diets and reducing food waste. They found that increasing investment into rainfed
agriculture has significant potential, irrigation expansion in areas lacking in infrastructure would be useful and
increasing agricultural trade may be beneficial, conditional on the political and socioeconomic context. In
relation to influencing diets, the authors held that it would be difficult for regulators to effectively reduce the
virtual water footprint of diets, and supported food waste reduction as a more politically palatable option.
844
See, eg, Burlingame and Dernini, above n 95; Hope Johnson, ‘Eating for Health and the Environment:
Australian Regulatory Responses for Dietary Change’ (2015) 15 QUT Law Review 122.
6.2.3 Rights-Based Approach to Food Security in the Context of Fresh Water Issues
Based on the above issues, and to be consistent with a RBA to FS,845 the international
regulatory framework for agriculture needs to facilitate water management that increases
food security while reducing the impact of agriculture on water quality and quantity.846 This
section expands on this understanding of a RBA to FS in the context of fresh water issues by
examining the emerging right to water and its intersections with a RBA to FS.

6.2.3.1 The human right to water and a rights-based approach to food security
At the domestic level, rights to water are derived from customary law or legislative
instruments and such rights can be held by a corporation, state, an individual or a
community.847 At the international level, progress towards recognising a human right to water
has been building since 2002 when the Committee on Economic, Social and Cultural Rights
released General Comment No. 15.848 This document argued that the right to an adequate
standard of living, which encompasses the right to food, should be interpreted as
incorporating a right to water.849 Subsequently, in 2010, the UN General Assembly adopted a
human right to water that ‘[r]ecognises the right to safe and clean drinking water and
sanitation as a human right that is essential for the full enjoyment of life and all human
rights’.850 The right was then affirmed by the UN Human Rights Council,851 which explained
that the human right to drinking water flows from ‘[t]he right to an adequate standard of
living inextricably related to the right to the highest attainable standard of physical and
mental health, as well as a right to life…’.852 To date, only non-binding instruments at the

845
Recall criterion 4 of a RBA to FS from chapter 3.
846
Pasquale Steduto et al, ‘Pathways for Increasing Agricultural Water Productivity’ (Water for food, Water for
Life: A Comprehensive Assessment of Water Management in Agriculture, International Water Institute,
Earthscan, 2007) 279
<http://www.iwmi.cgiar.org/assessment/files_new/synthesis/Summary_SynthesisBook.pdf> where the authors
explain water productivity and describe it as ‘Growing more food or gaining more benefits with less water’ .
847
Douglas Fisher, The Law and Governance of Water Resources: The Challenge of Sustainability (IWA
Publishing, 2009) 85 <http://www.e-elgar.co.uk/bookentry_main.lasso?id=12950>.
848
Committee on Economic, Social and Cultural Rights, General Comment No. 15: The Right to Water (arts 11
and 12 of the International Covenant on Economic Social and Cultural Rights- ICESCR, 29th sess, UN Doc.
E/C12/2002/11 (27 November 2002).
849
ICESCR art 11.
850
The human right to water and sanitation, GA Res 64/292, UN GAOR, 64th sess,108th plen mtg, Agenda Item
48, UN Doc A/Res/64/292 (3 August 2010) para [3].
851
Human Rights Council, Human rights and access to safe drinking water and sanitation, 15th sess, Agenda
Item 3, UN Doc A/HRC/15/L.14 (24 September 2010) [3] where the HRC stated, ‘…the right to an adequate
standard of living inextricably related to the right to the highest attainable standard of physical and mental
health, as well as a right to life…’.
852
Human Rights Council, Human rights and access to safe drinking water and sanitation, 15th sess, Agenda
international level recognise the human right to water, which limits the rights legitimacy,
influence and enforceability.

Some commentators have debated whether the right to food and food security can be in
conflict with the right to water, as the right to water does not extend to a right to water for
food production.853 Given that agriculture is one of the largest users and polluters of water,
the emerging human right to water could have implications for water use in agriculture. In
particular, the concern is that regulatory interventions to respect, protect and fulfil the right to
water for drinking and sanitation may adversely impact on the water available for agriculture.
Yet, these concerns seem to be based on the continuation of unsustainable agricultural
models. As outlined in the previous two sections, with sustainable water management there
need not be a trade-off between water for agriculture and water for sanitation and drinking
purposes.854

From another perspective, a RBA to FS cannot exist where water is being used
unsustainably, as current and future generations will struggle to produce food when water is
scarce. In other words, and consistent with criterion 4, a RBA to FS is not being adopted
where food production is infringing on current or future generations right to water for
drinking or sanitation. This is recognised in General Comment No. 12 on the right to food
where it states that the right to adequate food must be progressed ‘[i]n ways that are
sustainable and do not interfere with the enjoyment of other human rights’.855 It is further
supported by the right to food in Article 11(2)(a) of the ICESCR, which requires that states,
individually and through international cooperation ‘[i]mprove methods of production…’ by
‘[d]eveloping or reforming agrarian systems in such a way as to achieve the most efficient
development and utilization of natural resources’.

Item 3, UN Doc A/HRC/15/L.14 (24 September 2010) [3].

853
Surabhi Chopra, ‘The Rights to Food and Water: Dependencies and Dilemmas’ (Institute for Human Rights
and Business, 2011) <http://www.ihrb.org/pdf/Right_to_Food_and_Water_Dependencies_and_Dilemmas.pdf>.
854
See, eg, Nathaniel D Mueller et al, ‘Closing Yield Gaps through Nutrient and Water Management’ (2012)
490 Nature 254, 255 where the authors identified the impacts of different management practices, which can
improve water quality and quantity, on yields. They estimated that by addressing on-farm inefficiencies (eg
over-use of external inputs on farms), the amount of synthetic fertilizer used in the production of maize, wheat
and rice could decrease globally by 11 million tonnes of nitrogen (28%) and 5 million tonnes of phosphate
(38%) without impacting current yields. But see David Molden et al, ‘Improving Agricultural Water
Productivity: Between Optimism and Caution’ (2010) 97 Agricultural Water Management 528, 533 where the
authors discussed the socioeconomic drivers of unsustainable water use in agriculture and so the need for there
to be an enabling environment for sustainable water use. They explained that ‘while incentives for agriculture to
deplete less water are high for society and river basin managers trying to allocate limited supplies, they are low
for individual agricultural producers’.
855
General Comment No. 12 [8].
 Instead of the right to water competing with food security, the acknowledgment of a
human right to water supports a RBA to FS. Recognition of the right to water endorses the
need for the sustainable and equitable management of water. Recalling criterion 4 of a RBA
to FS in the context of agricultural regulation, the production of food must be regulated and
carried out in a way that protects the availability of water for drinking and sanitation uses.
Likewise, for agricultural regulation to be consistent with a RBA to FS, it must seek to reduce
the impact of agriculture on water quality in order to protect and respect the right to water for
drinking and sanitation. In addition, the terms on which people gain or lose access to water
for food security purposes must be based on human rights principles, including equity,
transparency and participation.856

6.2.3.2 Allocation of water uses

A related issue is how to allocate the various water uses, including water for
agriculture, once the right to water is being protected, respected and facilitated. The UN High
Commissioner for Human Rights stated in a report on the human right to water that:

Once a sufficient amount of safe drinking water to prevent disease has been secured
for all, allocation among various uses- water for personal and domestic uses beyond
this sufficient amount, water to produce food, water to sustain livelihoods and water
to ensure environmental hygiene- remains unclear.857

To put it another way, the right to water prioritises water for drinking and sanitation but
does not provide further guidance. Given that food is another basic necessity and a human
right, it is arguable that agriculture should be given the priority to water over other industrial

856
In the Residents of Bon Vista Mansions v Southern Metropolitan Local Court Case No. 01/12312 2002 (6)
BCLR 625, the High Court of South Africa presided over a case concerning access to water and the right to
food. In this case, the council had cut off water to residences due to their failure to pay for the water charges. To
make a determination, the court considered the right to food in the ICESCR, as well as the right to water
contained in the South African constitution (section 27(1)(a)). In accordance with the applicable statute, the
right to food and the constitution, the court found that the procedures for disconnection of the water supply had
not been equitable because the citizens were not adequately notified of the termination nor were they given the
opportunity to appeal the decision or fix the breach. The court further held that where a person is being
prevented from accessing basic water services due to the non-payment of water bills, the state must continue to
provide the water services where the person proves that they cannot afford the bill. Consequently, the Council
had breached the constitutional right to water when it cut off the water supply to the residents.
857
Human Rights Council, Report of the United Nations High Commissioner for Human Rights on the scope
and content of the relevant human rights obligations related to equitable access to safe drinking water and
sanitation under international human rights instruments, Annual Report of the United Nations High
Commissioner for Human Rights and Reports of the Office of the Untied Nations High Commissioner for
Human Rights and the Secretary General, 6th sess, Item 2 of the provisional agenda, UN Doc A/HRC/6/3 (16
August 2007) 25.
uses. At the same time, not all farms contribute to food security and this is especially so
where farms are industrial and produce non-food products. For instance, a farm that exports
biofuels and only hires non-local farm workers would have a minimal or perhaps detrimental
impact on local food security. Therefore, prioritising water for agriculture over other uses
will not always be compatible with a RBA to FS. Furthermore, there is no human rights
obligation to provide water for food production where national food security can be met
through food imports or where household food security can be fulfilled through the
purchasing of food.858

Based on this discussion though, priority access to water should be given to low-
income, agricultural-based populations where farmers depend on agriculture for food
security. To put it differently, the water uses of subsistence farmers should be given priority
once the right to water for drinking and sanitation is secured. This is consistent with CESCR
General Comment No. 15, which provided that:

Priority in the allocation of water must be given to the right to water for personal and
domestic uses. Priority should be given to the water resources required to prevent
starvation and disease… Attention should be given to ensuring that disadvantaged and
marginalized farmers, including women farmers, have equitable access to water and
water management systems, including sustainable rain harvesting and irrigation
technology. 859

Similar to the approach taken by the CESCR, Winkler developed a framework to

balance the various water uses in order to establish priorities for water allocation.860
Winkler’s framework prioritised the amount of water required for the right to food to be met,
while asserting that food can be imported so direct access to water is not necessarily required
for the right to food to be realised.861

858
J Lundqvist, J Grönwall and A Jägerskog, ‘Water, Food Security and Human Dignity – a Nutrition
Perspective’ (Article no: N2015.29, Ministry of Enterprise and Innovation, Swedish FAO Committee, 2015) 38
<http://www.government.se/contentassets/5ef425430d2f49cea3ebc4a55e8127e5/water-food-security-and-
human-dignity> where Lundqvist et al explained that: ‘The rights to water and food are framed such that they do
not entitle every person to water for her/his own food production. Nor does human rights law oblige the state to
ensure food self-sufficiency on a national basis provided an adequate supply is available in the market’.
859
Committee on Economic, Social and Cultural Rights, Substantive issues arising in the implementation of the
international covenant on economic, social and cultural rights, E/C.12/2002/11 (Twenty-ninth session, 11-29
November 2002, Agenda item 3, Geneva) paras 6-7
860
Inga T Winkler, The Human Right to Water: Significance, Legal Status and Implications for Water Allocation
(Hart Publishing Limited, 1st ed, 2012).
861
Ibid 163.
 This leads to the point that countries experiencing water scarcity may need to focus on
importing food and diversifying from agriculture into other tradeable commodities in order to
avoid agricultural threats to the human right to water for drinking and sanitation.862 After all,
a state can be considered food secure while being dependent on imports, as the food
availability limb cons. Hardberger explained that, ‘Because alternatives are available and
agriculture is water intensive, ensuring its availability should be secondary to meeting basic
human needs’.863 Such an approach, which is referred to as ‘[t]he virtual transfer of fresh
water from production to consumption areas’,864 may progress human rights and food
security more effectively than improving domestic agriculture’s water usage.

It is debatable whether relying on imported foods to reduce agricultural water use is

consistent with a RBA to FS. The critical point is that food security requires stability across
the access, availability and utilisation of food. The food price increases experienced in recent
years and subsequent food insecurity reflects the volatile nature of the world food market.865
As Lundqvist et al put it ‘Countries simply want to have more control and not face the risk of
being affected by sudden export restrictions in other countries, increased trade barriers or
sudden fluctuations in the prices of food’.866 Therefore, dependence on imports may alleviate
water scarcity in the importing country, but could ultimately have a negative effect on a RBA
to FS. This is especially so in countries where there are large amounts of urban poor or where
smallholder agriculture is a main industry, as these groups are more vulnerable to price
fluctuations.867

Additionally, dependence on food imports can hinder the knowledge and adoption of
sustainable water practices within a state, therefore reducing resilience to water-related
shocks.868 For instance, D’Odorico et al, through modelling of virtual water and population
dynamics, found that the global trade in food products:

862
The importation of water in agricultural products is termed ‘virtual water’.
863
Amy Hardberger, ‘Life, Liberty, and the Pursuit of Water: Evaluating Water as a Human Right and the Duties
and Obligations It Creates’ (2005) 4 Northwestern University Journal of International Human Rights 331, 357.
864
Samir Suweis et al, ‘Water-Controlled Wealth of Nations’ (2013) 110 Proceedings of the National Academy
of Sciences 4230, 4230.
865
See, eg, Patrick Webb, ‘Medium- to Long-Run Implications of High Food Prices for Global Nutrition’ (2010)
140 The Journal of Nutrition 143S.
866
Lundqvist, Grönwall and Jägerskog, above n 853, 52.
867
Christopher Adam and Olu Ajakaiye, ‘Causes, Consequences and Policy Implications of Global Food Price
Shocks: Introduction and Overview’ (2011) 20 Journal of African Economies i3.
868
See, eg, Qian Dang, Xiaowen Lin and Megan Konar, ‘Agricultural Virtual Water Flows within the United
States’ (2015) 51 Water Resources Research 973 where the authors found ‘The US virtual water flow network is
 [m]ay allow for a disproportionate demographic growth in water-poor geographic
regions…Besides being energy costly, the long-distance transport of food weakens the
resilience of the coupled natural-human system and reduces its ability to cope with changes in
environmental conditions and available resources.869

Similarly, a large body of work, largely in the field of environmental science, reveals
that water flows in trade are influenced by the wealth of a country rather than their level of
water scarcity, which suggests that the market has not corrected the unequal distribution of
water.870

6.2.3.3 Extraterritorial application of the right to water in the context of food production
and security
As a result of the extraterritorial effect of human rights, states are required to consider
the impact of their water uses on the human rights of people downstream to these activities.
This is particularly persuasive in the case of shared watercourses, as the ICESCR requires
international cooperation to achieve the progressive realisation of human rights, including the
right to food and water.871 As discussed in Chapter 3, states arguably owe obligations to:

 Refrain from interfering with the enjoyment of human rights in other countries;

 Take measures to prevent third parties within their control from engaging in such
interference;

 Take steps through international assistance and cooperation to facilitate the

fulfilment of human rights in other countries.872

more social, homogeneous, and equitable than the global virtual water trade network, although it is still not
perfectly equitable. Importantly, a core group of US States is central to the network structure, indicating that
both domestic and international trade may be vulnerable to disruptive climate or economic shocks in these US
States.’; Paolo D’Odorico, Francesco Laio and Luca Ridolfi, ‘Does Globalization of Water Reduce Societal
Resilience to Drought?’ (2010) 37 Geophysical Research Letters L13403.
869
D’Odorico, Laio and Ridolfi, above n 863, L13403. Note though that the authors found that virtual water
transfer is beneficial to food security where there has been a shock to the food system or/and an emergency
situation.
870
See, eg, Joel Carr et al, ‘Inequalities in the Networks of Virtual Water Flow’ (2012) 93 Eos, Transactions
American Geophysical Union 309; JA Carr, DA Seekell and P D’Odorico, ‘Inequality or Injustice in Water Use
for Food?’ (2015) 10 Environmental Research Letters 024013; Suweis et al, above n 859; Hong Yang, Stephan
Pfister and Anik Bhaduri, ‘Accounting for a Scarce Resource: Virtual Water and Water Footprint in the Global
Water System’ (2013) 5 Current Opinion in Environmental Sustainability 599; DA Seekell, P D’Odorico and
ML Pace, ‘Virtual Water Transfers Unlikely to Redress Inequality in Global Water Use’ (2011) 6 Environmental
Research Letters 024017.
871
ICESCR arts 2(1), 11.
872
Ibid.
 Subsequently, an upstream state could be in breach of its human rights duties where it
carries out a project or allows a third party to carry out a project on a shared watercourse that
diverts water to the extent that it adversely affects downstream communities.873 Even the
combined impact of upstream states on water flows or water quality could be a violation of
the obligation to cooperate internationally to progress the rights to food, water and health.
This area of law is developing, and thus provides a topic for future research.

6.3 REGULATION OF FRESH WATER AT THE INTERNATIONAL LEVEL

6.3.1 International Water Law

A state’s sovereignty over water sources within their jurisdiction becomes problematic
in the context of shared international watercourses.874 Around 245 river basins flow through
two or more states and agriculture is, as discussed, the most common reason for fresh water
withdrawals.875

Rivers flow downhill from mountains or springs and flow towards the sea. An upstream
state is a state that is closer to the source (eg a mountain or groundwater spring) and so they
are said to be ‘[s]ituated in the opposite direction from that in which a stream or river
flows’.876 A downstream state is further from the source and closer to the ocean. In other
words, a downstream state is situated ‘…in the direction in which a stream or river flows’.877
These geographical differences give upstream states more power and responsibility because
they can determine the amount and quality of water that flows downstream.

International water law began in the early 19th century by regulating navigational uses
of international lakes and rivers.878 The focus has since shifted to non-navigational uses of
international rivers and lakes. The two major treaties in this area, which coincidentally have
both come into force, are the: 1997 UN Water Convention and the Convention on the
Protection and Use of Transboundary Watercourses and International Lakes and the 1997
UN Convention on the Law of the Non-Navigational Uses of International Watercourses.

873
Bulto, above n 275, xiv.
874
A watercourse is essentially any stream or flowing body of water.
875
See, eg, Claudia W Sadoff and David Grey, ‘Beyond the River: The Benefits of Cooperation on International
Rivers’ (2002) 4 Water Policy 389 for a model for analysing the various benefits that flow from cooperation in
the case of international rivers.
876
‘Upstream’ in Pocket Oxford English Dictionary (Oxford University Press, 11th ed, 2013) 1020.
877
‘Downstream’ in Pocket Oxford English Dictionary (Oxford University Press, 11th ed, 2013) 269.
878
For background, see eg, Salman M A Salman, ‘The Helsinki Rules, the UN Watercourses Convention and the
Berlin Rules: Perspectives on International Water Law’ (2007) 23 Water Resources Development 625, 626–628.
Similar to soil and land, there are a range of non-binding instruments with provisions that
relate to food security. The table below outlines the non-binding instruments and their
relevant provisions before an examination of the two main treaties in this area.
Instrument  Institution Example Provision/s related to Water and Food Security
Agenda 21   United Nations  Recognises ‘Sustainability of food production increasingly depends on sound and efficient water use and conservation 
(Rio de Janeiro, 1992)  Conference on  practices...’ 
Environment and   
Development  States that ‘Water resource management must be developed within a comprehensive set of policies for (i) human health; 
(UNCED)   (ii) food production, preservation and distribution; (iii) disaster mitigation plans; (iv) environmental protection and 
conservation of the natural resource base.’879 
1992 Dublin Principles   United Nations  States in its Action Agenda that ‘…agriculture must not only provide food for rising populations, but also save water for 
Conference on  other uses. The challenge is to develop and apply water‐saving technology and management methods, and, through 
Environment and  capacity building, enable communities to introduce institutions and incentives for the rural population to adopt new 
Development  approaches, for both rainfed and irrigated agriculture.’ 
(UNCED)    
  Identifies water in its guiding principles as an ‘economic good’ as ‘Past failure to recognize the economic value of water 
has led to wasteful and environmentally damaging uses of the resources. Managing water as an economic good is an 
important way of achieving efficient and equitable use’.880 
UN Millennium Summit  United Nations  Parties resolved ‘To stop the unsustainable exploitation of water resources by developing water management strategies 
(New York, 2000)  General Assembly  at the regional, national and local levels, which promote both equitable access and adequate supplies’.881 
International Conference  Ministerial Declaration Indirect references to food security and production eg ‘Combating poverty is the main challenge for achieving equitable 
on Fresh Water (Bonn,  and sustainable development, and water plays a vital role in relation to human health, livelihood, economic growth as 
2001)  well as sustaining ecosystems’.882 
Plan of Implementation  World Food Summit  Implementation at all levels to: 
of the World Summit on  on Sustainable  ‘Promote programmes to enhance in a sustainable manner the productivity of land and the efficient use of water 
Sustainable  Development‐ United  resources in agriculture … especially through indigenous and local community‐based approaches’;  
Development  Nations    
(Johannesburg  ‘Adopt policies and implement laws that guarantee well defined and enforceable land and water use rights and promote 
2002)  legal security of tenure’;  

879
Agenda 21 [18], [18.68].
880
United Nations Educational Scientific and Cultural Organization, Dublin Statement on Water and Sustainable Development (International Conference on Water and the
Environment, 31 January 1992) Preamble [1], The Action Agenda, Guiding Principle No.4.
881
United Nations Millennium Declaration [23].
882
Ministerial Declaration adopted at the International Conference on Fresh water, Bonn 2001 (4 December 2001) 1.

Chapter 6: Water 215

 ‘Employ market‐based incentives for agricultural enterprises and farmers to monitor and manage water use and quality, 
inter alia, by applying such methods as small‐scale irrigation and wastewater recycling and reuse’.883 
Voluntary Guidelines to  Food and Agriculture  ‘States should focus on sustainable agricultural and rural development through measures to improve access to land, 
Support the Progressive  Organisation of the  water, appropriate and affordable technologies’. 
Realization of the Right  United Nations    
to Adequate Food in the  ‘States should also provide women with secure and equal access to, control over, and benefits from productive resources, 
Context of National Food  including credit, land, water and appropriate technologies’. 
Security (2004)   
‘Bearing in mind that access to water in sufficient quantity and quality for all is fundamental for life and health, States 
should strive to improve access to, and promote sustainable use of, water resources and their allocation among users 
giving due regard to efficiency and the satisfaction of basic human needs in an equitable manner and that balances the 
requirement of preserving or restoring the functioning of ecosystems with domestic, industrial and agricultural needs, 
including safeguarding drinking‐water quality (emphasis added)’.884 
Report of the Berlin  International Law  ‘Every individual has a right of access to sufficient, safe, acceptable, physically accessible, and affordable water to meet 
Conference (2004):  Association, Berlin  that individual’s vital human needs’. 
Water Resources Law  Conference (2004)   
‘Berlin Rules’   ‘States shall establish water quality standards sufficient to protect public health and the aquatic environment and to 
provide water to satisfy needs, in particular for …. Providing water for agriculture, including irrigation and animal 
husbandry’.885 
 
Voluntary Guidelines on  Food and Agriculture  ‘…[R]esponsible governance of tenure of land, fisheries and forests is inextricably linked with access to and management 
the Responsible  Organisation of the  of other natural resources, such as water…’886 
Governance of Tenure of  United Nations   
Land, Fisheries and  ‘Land consolidation projects to restructure farms should be integrated with support programmes for farmers, such as the 
Forests   rehabilitation of irrigation systems and local roads.’887 
Sixth World Water  Ministerial Declaration  ‘A new approach to water, food and energy based on a better understanding and more systematic recognition of their 

883
Plan of Implementation of the World Summit on Sustainable Development, UN Doc, A/CONF.199/20 (4 September 2002) art 40(d), 40(k) and 40(j).
884
Right to Food Guidelines [2.6], [8.6], [8.11].
885
International Law Association, Berlin Conference (2004) Water Resources Law,
‘Fourth Report in the Report of the Seventy-First Conference of the International Law Association’ (Adopted 21 August 2004; London: International Law Association) (Berlin
Rules) arts 17, 28(1)(c).
886
VGGT iv.
887
VGGT [13.4].

216 Chapter 6: Water

Forum (Marseille, France  inter‐linkages in decision‐making and planning has the potential to improve the production and sustainable management 
2012)  of these scarce resources. A more efficient use and reduced waste can improve access to water, food and energy. We 
intend to enhance policy coherence, adapt existing institutional arrangements and establish frameworks to maximize 
benefits and synergies across sectors (emphasis added)’. 
 
‘To achieve food security for a growing world population, in a context of global climate change, solutions involve tailor‐
made and innovative approaches to address the diversity of situations worldwide…. Solutions include water saving and 
storage technologies and practices in rain‐fed and irrigated areas, reduction of water and food losses and waste, safe re‐
use of wastewater in agriculture and industry, intensification of the cultivation of traditional and new water‐stress tolerant 
plant varieties and the involvement of food security stakeholders, especially producer organizations, in water policies 
(emphasis added)’.888   
Rio+20 Conference  United Nations  Recognition of:
(Brazil, 2012)  Conference on   ‘the necessity to promote, enhance and support more sustainable agriculture…that improves food 
Sustainable  security…while conserving land, water, plant and animal genetic resources’ 
Development    ‘the need to maintain natural ecological processes that support food production systems’ 
7th World Water Forum  Ministerial Declaration  Promotes integrated approaches to water management encompassing food and energy needs.  
(Korea, 2015) 
Table 6.1 Summary of non-binding instruments regarding water management and relevant provisions for food security

888
Ministerial Declaration of the 6th World Water Forum (13 March 2012) [10]-[13].

Chapter 6: Water 217

 In comparison to the non-binding instruments regulating soil use outlined in the previous
chapter, many more non-binding instruments are relevant to water and the provisions of these
instruments are generally couched in rights language.889 In addition, the above table illustrates
that international water-related instruments have increasingly incorporated practical steps that
can be taken by state and non-state actors to improve water use in agriculture and land
management practices for food security. Despite this trend, the Voluntary Guidelines on the
Responsible Governance of Tenure, which is an extensive 2012 policy document on land tenure,
directly mentions water only once. More engagement with water issues in the Voluntary
Guidelines on the Responsible Governance of Tenure would have been preferable given the
connections between land rights and access to water resources.

To a lesser extent, some of the above instruments (eg Dublin Principles; Johannesburg
2002) frame water as a commodity in order to promote the efficient use of water. This approach
is not necessarily consistent with human rights and various human rights violations have been
associated with the privatisation of water sources and services.890 Instead, a large body of work
illustrates that the sustainable use of water and food security is optimally progressed where the
governance of a water source is given back to the users of that water, which users formulate local
institutions and rules.891 This approach would be compatible with criterion 3 of a RBA to FS

889
See the extract from the Berlin Rules in the above table.
890
In ‘Water for Food Security and Nutrition’ (High Level Panel of Experts on Food Security and Nutrition;
Committee on World Food Security, May 2015) 44
<http://www.fao.org/fileadmin/user_upload/hlpe/hlpe_documents/HLPE_Reports/HLPE-Report-9_EN.pdf> it was
observed that ‘Experiences with privatization of water services have not always been poor-friendly, affecting the
ability of poor households to access sufficient water of an appropriate quality for food preparation, health and
hygiene requirements’.
Note that there are a range of positive examples of water privatisation, but generally in countries without an
effective rule of law, or where wealth distribution is highly unequal, then water privatisation may negative and
disproportionately affect access to water. See, eg, David Alexander McDonald and Greg Ruiters, The Age of
Commodity: Water Privatization in Southern Africa (Earthscan, 2005); K Bayliss, ‘Privatization And Poverty: The
Distributional Impact of Utility Privatization’ (2002) 73 Annals of Public and Cooperative Economics 603; Karen
Bakker, ‘The “Commons” Versus the “Commodity”: Alter-Globalization, Anti-Privatization and the Human Right to
Water in the Global South’ (2007) 39 Antipode 430; Vandana Shiva, Water Wars: Privatization, Pollution and Profit
(Pluto Press, 2002); Jørgen Magdahl et al, ‘Privatisation of Water: Public-Private Partnerships- Do They Deliver to
the Poor?’ (The Norwegian Forum for Environment and Development, April 2006) <http://fivas.org/wp-
content/uploads/2015/05/Water-privatisation-030406-final-version.pdf>.
891
This body of empirical work concerning particular water courses found that common property resource
management is more sustainable and efficient provided effective institutional structures are in place.Wai Fung Lam,
Governing Irrigation Systems in Nepal: Institutions, Infrastructure, and Collective Action (ICS Press, 1998); Note
that a range of factors must be present for community management of water resources to be sustainable and
efficient. See, eg, Ruth Meinzen-Dick, K V Raju and Ashok Gulati, ‘What Affects Organization and Collective

218 Chapter 6: Water

because it is likely to encourage the participation and empowerment of communities; but such an
approach is only suitable where there is a specified group of users and an identifiable body of
water from which it is difficult to prevent others from accessing.

Regardless of whether water is privately owned or community managed, a state will still
owe human rights obligations. Government oversight of water management is required to ensure
that, inter alia, groups vulnerable to food insecurity are accessing water and participating in
water governance arrangements where possible.

6.3.2 1997 UN Convention on the Law of the Non-Navigational Uses of International

Watercourses
The main international instrument governing international rivers, lakes and transboundary
aquifers is the 1997 UN Convention on the Law of the Non-Navigational Uses of International
Watercourses (UNWC).892 It was designed to supplement the many and varied regional
agreements that govern particular international lakes, rivers and groundwaters. While adopted
over 15 years ago, the UNWC only entered into force in August 2014.893

Action for Managing Resources? Evidence from Canal Irrigation Systems in India’ (2002) 30 World Development
649; David Sneath, ‘State Policy and Pasture Degradation in Inner Asia’ (1998) 281 Science 1147 where the author
discussed, using satellite images and case studies as evidence, how the Mongolian Government allocated land to
pastoralists in two regions in Mongolia in the 1980s, where previously Mongolians had more mobile farming
systems. In a region that did not privately allocate land, the degradation of land resources was minimal, but in the
regions that did privately allocate, degradation was close to 80% of the district. As an example, in the Indian states
of Andhra Pradesh, Maharashtra and Gujarat a system was introduced in which farmers actively participated in the
design, maintenance and construction of irrigation. An evaluation of this approach decades later revealed that there
was a significant improvement in the efficiency of water use and an increase in the area under irrigation and the
number of farmers that could access irrigation. Vasant Gandhi and N V Namboodiri, ‘Participatory Irrigation
Management in India: An Evaluation of the Performance in Andhra Pradesh, Gujarat and Maharashtra’ (CMA
Publication No. 237, Centre for Management in Agriculture, Indian Institute of Management, 2005).
<http://www.iimahd.ernet.in/users/webrequest/files/cmareports/4ParticipatoryIrrigation.pdf>; Note though that the
system of participatory irrigation management is not without its implementation difficulties and there are areas to
improve in this regard, see, K V Raju et al, ‘Participatory Irrigation Management in Andhra Pradesh: A Quick
Review of 7 Years of Experience’ (Government of India, The Planning Commission; Development Support Centre,
2006) <http://planningcommission.nic.in/reports/sereport/ser/ser_ap.pdf>. For example, a key issue with India’s
participatory irrigation management framework is that it does not deal with class or gender inequities on the ground
that limit the involvement of marginalised groups in irrigated water.
892
1997 UN Convention on the Law of the Non-Navigational Uses of International Watercourses, opened for
signature 21 May 1997, 36 ILM 700 (1997); G.A. Res. 51/229, U.N. GAOR, 51st Sess., 99th mtg., UN Doc
A/RES/51/229 (1997) (entered into force 17 August 2014) art 3(a) (UNWC).
893
The UNWC entered into force after Vietnam became the 35th country to ratify, which gave the Convention the
required number of contracting parties

Chapter 6: Water 219

6.3.2.1 Purpose and design
Regional agreements regarding specific international watercourses are the predominant
way of regulating shared watercourses. Around 3600 regional agreements and treaties have been
signed to create rules and promote interstate cooperation for regulating a particular
watercourse.894 Nevertheless, reliance on states to create and enter into regional agreements for
each international watercourse meant that most international rivers, lakes and aquifers lacked
frameworks for deciding between competing uses and resolving disputes.895 Many other
governance problems exist where international watercourses are purely governed by regional
arrangements. Specifically, regional instruments tend to:

 Lack enforcement mechanisms, monitoring provisions or specific water allocation

provisions;

 Fail to include provisions on the sustainable management of water;

 Maintain significant gaps in relation to the kinds or uses of water resources that they
govern (eg only govern for flood control);

 Leave out other states that are also part of the watercourse;

 Result in numerous, overlapping watercourse agreements that create legal uncertainty

and hinder implementation.896

The UNWC tries to address these problems by being an international instrument that
clarifies norms, fosters uniformity across the regulation of watercourses and addresses the lack of
social and environmental considerations in international and regional water management.
Importantly, the UNWC is careful not to impinge on the ability of co-riparian states to reach
agreements that reflect their particular needs and the nature of the specific international
watercourse in question. Instead, the UNWC provides a framework that can improve how
regional agreements are formed. It promotes a level of uniformity among regional agreements to

894
Transboundary Waters (23 October 2014) United Nations, International Decade for Action ‘Water for Life’
2005-2015 <http://www.un.org/waterforlifedecade/transboundary_waters.shtml>.
895
Flavia Loures, Alistair Rieu-Clarke and Marie-Laure Vercambre, ‘Everything You Need to Know about the UN
UNWC’ (World Wildlife Fund, January 2009) 32, 5
<http://www.gcint.org/sites/default/files/publication/document/UN-Watercourses-Brochure-Eng.pdf>.
896
Ibid 5–6. For more information, see also, Gabriel Eckstein, ‘Development of International Water Law and the
UN Watercourse Convention’ (Turton & Henwood, 2002) 82 <http://repository.law.ttu.edu/handle/10601/952>.

220 Chapter 6: Water

increase clarity and consistency of provisions and aid implementation. . In taking this role, the
UNWC is compatible with criterion 3 of a RBA to FS, which requires greater coordination and
coherence across relevant regulatory instruments as required by the rule of law.

6.3.2.2 Definition of an international watercourse

The UNWC defines an international watercourse as ‘[a] system of surface waters and
ground waters constituting by virtue of their physical relationship a unitary whole’ where parts of
the watercourse are situated in different states.897 This definition includes groundwater if it is
connected to surface waters and is transboundary. Therefore, ‘confined groundwater’ is excluded
because it is not linked to surface waters.898 Yet, confined groundwater can be transboundary.

While around 263 rivers are transboundary, an on-going study has identified 527
transboundary groundwater bodies to date.899 Subsequently, the UNWC does not consider a large
number of transboundary water sources. This is relevant to food security given that irrigated
agriculture relies on groundwater as outlined at the start of this chapter. An additional issue with
the UNWC’s distinction between groundwater linked to surface water and confined groundwater
is that it is difficult to determine whether a groundwater aquifer is linked to surface water and
whether a groundwater source is transboundary.900

Not only does the UNWC exclude confined groundwater, it also lacks specific provisions
on groundwater even though groundwaters function differently from surface waters and

897
UNWC art 2(a)-(b).
898
For more on this point see, Gabriel Eckstein, ‘Hydrogeological Perspective of the Status of Ground Water
Resources under the UN Watercourse Convention, A’ (2005) 30 Columbia Journal of Environmental Law 525;
Gabriel Eckstein, ‘Implications of the UN Watercourses Convention for Groundwater Resources’
<http://www.internationalwaterlaw.org/blog/2014/08/05/professor-gabriel-eckstein-implications-of-the-un-
watercourses-convention-for-groundwater-resources/>; For a more broad discussion than the UNWC, see Julio
Barberis, ‘Development of International Law of Transboundary Groundwater, The’ (1991) 31 Natural Resources
Journal 167. Note that in scientific communities it is debatable that groundwater can be separate from surface
waters.
899
Global Groundwater Information System (GGIS): Country and Aquifer Briefs (2014) International Groundwater
Resource Assessment Centre <https://ggis.un-igrac.org/ggis-viewer/region_information>.
900
See, eg, Thomas Winter et al, ‘Ground Water and Surface Water: A Single Resource’ (U.S. Geological Survey
Circular 1139, U.S. Department of the Interior, 1998) 1 <http://pubs.usgs.gov/circ/circ1139/pdf/circ1139.pdf>
‘Surface water commonly is hyraulically connected to ground water, but the interactions are difficult to observe and
measure’.

Chapter 6: Water 221

scientific understanding of them is limited.901 There is also a notable lack of regional agreements
on transboundary groundwater.902 After examining both international and regional agreements on
water, Burchi and Mechlem explained that the law has:

… rarely taken account of groundwater. While surface water treaties abound,

groundwater is either nominally included in the scope of these instruments, mainly if it is
“related” to surface waters, or not mentioned at all. Only a few legal instruments contain
groundwater specific provisions, and even fewer address groundwater exclusively.903

In summary, the UNWC does not adequately consider transboundary groundwater sources,
which limits its relevance to water use in agriculture and food security, and regional agreements
have not filled this gap.904 This is an issue for a RBA to FS given the previously discussed
unique nature of groundwater (eg slow rates of recharge) and the reliance of irrigated agriculture
on groundwater. Consequently, the International Law Commission has suggested that the UNWC
should be expanded to cover confined groundwater, or that separate international laws be created
for regulating confined groundwater.905

6.3.2.3 Doctrines underpinning UNWC and their connection with food security
Two doctrines underpin international water law and the UNWC. The first is the principle of
‘Equitable and Reasonable Utilisation and Participation’ (equitable use principle). The second is
the ‘no significant harm’ rule. The former principle, equitable use, is generally considered the
fundamental overarching principle while the ‘no significant harm’ rule works in conjunction with
equitable use.906

901
A lack of scientific certainty is generally cause for a precautionary approach in international environmental law
instruments. See, Owen McIntyre and Thomas Mosedale, ‘Precautionary Principle as a Norm of Customary
International Law, The’ (1997) 9 Journal of Environmental Law 221.
902
No provisions, apart from the definition of a watercourse, in the UNWC specifically refer to groundwaters, the
same can be noted for surface water; however, groundwater has a particularly high-level of importance for
sustainable food security.
903
Stefano Burchi and Kerstin Mechlem, Groundwater in International Law: Compilation of Treaties and Other
Legal Instruments (Food & Agriculture Organisation; United Nations Educational, Scientific and Cultural
Organization, 2005).
904
Eckstein, ‘Hydrogeological Perspective of the Status of Ground Water Resources under the UN Watercourse
Convention, A’, above n 893, 561.
905
‘Report of the Commission to the General Assembly on the work of its forty-sixth session (1994)’ [1996]), UN
Doc A/CN.4/SER.A/1994/Add.l (Part 2), Yearbook of the International Law Commission 135.
906
A substantial number of legal and political debates have focused on the relationship between equitable use and
the ‘no significant harm’ rule. It is generally agreed that the duty to not cause significant harm is a secondary

222 Chapter 6: Water

 (a) Equitable use

Under the UNWC, watercourse states are required to use international watercourses in ‘[a]n
equitable and reasonable manner’ by using and developing an international watercourse: ‘[w]ith
a view to attaining optimal and sustainable utilization thereof and benefits therefrom, taking into
account the interests of the watercourse states concerned, consistent with adequate protection of
the watercourse (emphasis added)’.907 In addition, the principle provides that watercourse states
must reasonably and equitably participate in the ‘[u]se, development and protection of
international watercourses’.908 Ultimately then, the principle of equitable use means that
watercourse states have a right to use a reasonable and equitable share of the watercourse and a
duty to cooperate with the other watercourse states.909

The equitable use principle is consistent with a RBA to FS, not only because it is based on
equity and sustainability, but also because it promotes international cooperation around the
management of transboundary watercourses.910 Recalling the criteria for a RBA to FS
established in Chapter 3, equitable use is reflective of criterion 1 (equitable allocation of
agricultural resources) and criterion 3 (equity is a human rights principle). Furthermore,
incorporating sustainability into equitable use promotes the sustainable use of agricultural
resources and is therefore consistent with criterion 4 of a RBA to FS.

As a guiding principle, equitable use is flexible and adaptable to circumstances, which has
benefits but also creates the potential for misinterpretation. Fortunately, the UNWC provides a

obligation to the principle of equitable use, because a state must give ‘due regard’ to the principle of equitable and
reasonable use when determining whether there has been or could be significant harm. See, UNWC art 7(2). See
also, Daniel Malzbender and Anton Earle, ‘Southern Africa’ in Flavia Rocha Loures and Alistair Rieu-Clarke (eds),
The UN Watercourses Convention in Force: Strengthening International Law for Transboundary Water
Management (Routledge, 2013) 112, 117.
907
UNWC art 5(1).
908
Ibid 5(2).
909
Ibid. See also, Shlomi Dinar, International Water Treaties: Negotiation and Cooperation Along Transboundary
Rivers (Routledge, 2007) 141 where Dinar explained the principle as '[a] State has a right to an equitable and
reasonable share in the beneficial uses of the waters of the basin, yet that State should not use these waters in such a
way as to unreasonably interfere with the legitimate interests of other states'.
910
As discussed, international cooperation is required under the ICESCR to progressively realise the rights to food
and water. See, ICESCR arts 2, 11.

Chapter 6: Water 223

list of relevant factors and circumstances that should be taken into account when determining
whether a use meets the ‘equitable utilisation’ requirement. These factors are indicative but not
conclusive or exhaustive, and include:

 Geographic, hydrological, climatic, ecological and other factors of a natural character;

 The social and economic needs of the watercourse state concerned;

 The population dependent on the watercourse in each watercourse state;

 The effects of the use or uses of the watercourses in one watercourse state on other
watercourse states;

 Existing and potential uses of the watercourse;

 Conservation, protection, development and economy of use of the water resources of

the watercourse and the costs of measures taken to that effect;

 The availability of alternatives, of comparable value, to a particular planned or

existing use.911

By virtue of the close relationship between water, food security and agriculture, most of
the above considerations for determining equitable use are directly relevant to food security. Of
particular relevance are the provisions concerning the ecological characteristics of the river and
the social and economic needs fulfilled by the river in question.

(b) “No Significant Harm” Rule

The second key principle, the duty to cause no significant harm provides that,
‘Watercourse States shall, in utilizing an international watercourse in their territories, take all
appropriate measures to prevent the causing of significant harm to other watercourse States’.912
In some ways then, the ‘no significant harm’ rule is similar to the duty on states to protect
against human rights breaches. Both obligations concern the actions a state should take to
prevent harm to social, economic and cultural conditions. Moreover, the understanding of state
responsibility in the UNWC is consistent with the scope of the extraterritorial application of
human rights discussed above. These links with human rights law have not been made in the

911
UNWC art 6(1)(a)-(g).
912
UNWC art 7(1).

224 Chapter 6: Water

UNWC. Neither does the UNWC define ‘significant harm’, which appears to be a response to
negotiation tensions between upstream and downstream states.913

The Southern African Development Community Revised Protocol on Shared Watercourses

was reformed in order to bring the original protocol in line with the UNWC and it provides some
guidance on the ‘no significant harm’ rule.914 In this protocol, ‘significant harm’ is defined as
‘[n]on-trivial harm capable of being established by objective evidence without necessarily rising
to the level of being substantial’.915 In other words, ‘significant’ means more than merely
detectable but less than acute. In contrast, the User Guide to the UNWC interpreted ‘significant
harm’ more narrowly by defining it as:

…more than just an “adverse effect”- it engenders a real impairment of use, with a
detrimental impact of some consequence upon the environment or the socioeconomic
development of the harmed state (eg public health, industry, property, agriculture)’.916

Applying this to agriculture, a ‘significant harm’ is established when: (a) the watercourse is
so impaired that it can no longer be used, or only limited parts of it can be used, to provide water
to farms or communities, and (b) evidence establishes that this impairment had a detrimental
effect ‘of some consequence’ on agriculture or food security in the downstream state.

Arguably, these interpretations of ‘significant harm’ allow fairly substantial human rights
violations before an upstream state’s actions can be investigated for a potential breach of the ‘no

913
See, eg, The United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses
by Mr. Stephen C. McCaffrey (2003) <http://legal.un.org/avl/ls/McCaffrey_IW.html>. Upsteam states tended to
support equitable use during the negotiations of the UNWC as equitable use may allow for a wider range of uses of
the watercourse than the ‘no significant harm’ rule. Downstream states tend to prefer the ‘no significant harm’ rule
as it may be more protective of their existing and future water uses, so they sought unsuccessfully to make the no
significant harm rule take precedence over equitable utilisation.
914
Southern African Development Community, Revised Protocol on Shared Watercourses, Republic of Angola,
Republic of Botswana, Democratic Republic of the Congo, Kingdom of Lesotho, Republic of Malawi, Republic of
Mauritius, Republic of Mozambique, Republic of Namibia, Republic of Seychelles, Republic of South Africa,
Kingdom of Swaziland, United Republic of Tanzania, Republic of Zambia, Republic of Zimbabwe (revised and
signed 7 August 2000, entered into force 22 September 2003).
915
Ibid art 1(1).
916
Alistair Rieu-Clarke, Ruby Moynihan and Bjørn-Oliver Magsig, ‘UN Watercourses Convention: User’s Guide’
(IHP=HELP Centre for Water Law, Policy and Science (under the auspices of UNESCO), 2012) 120
<http://www.gwp.org/Global/Our%20Approach/Strategic%20Allies/User’s%20Guide%20to%20the%20UN%20Wa
tercourses%20Convention%20(2012).pdf>.

Chapter 6: Water 225

significant harm’ rule.917 However, human rights law requires a stricter standard of review by
states when contemplating water uses on shared watercourses than taking ‘appropriate measures’
to prevent ‘significant harm’. Unlike the UNWC’s ‘no significant harm’ rule, a RBA requires an
examination of whether human rights will be facilitated or hindered if a particular water use goes
ahead, and it necessitates that compromises between rights be minimised. The ‘no significant
harm’ rule is consequentialist in nature, that is, the rule focuses on the potential consequences of
a use not the compatibility of the use with common values operationalised through human rights.

At the same time, and apart from a lack of political will, there is nothing to prevent the ‘no
significant harm’ rule developing in ways that are fairly consistent with a RBA to FS.
‘Significant harm’ could be interpreted as human rights violations and the duty to take
‘appropriate preventative measures’ could be understood in a manner consistent with the
obligation to protect against interferences with human rights. From a RBA to FS perspective, it is
preferable that the ‘no significant harm’ rule explicitly recognise the human rights duties owed
by states to protect against human rights violations and refrain from interfering with human
rights (particularly the rights to food and water). This would not only make the UNWC more
compatible with criterion 1 of a RBA to FS (provisions consistent with human rights law), but it
would also help build consistency across international regulatory instruments, as required under
criterion 3.

(c) Vital Human Needs

Although Article 10(1) of the UNWC provides that ‘no use of an international watercourse
enjoys inherent priority over other uses’, Article 10(2) states:

…in the event of a conflict between uses of an international watercourse it shall be

resolved with references to Articles 5 to 7, with special regard being given to the
requirements of vital human needs [emphasis added].

In other words, the interpretation and application of the equitable use principle and ‘no
significant harm’ rule gives special emphasis to water used for vital human needs. The
International Law Commission’s Statement of Understanding, which accompanies the text of the
Convention, explains that:

917
In the case of human rights law, the harm is the violation of the right.

226 Chapter 6: Water

 In determining 'vital human need', special attention is to be paid to providing sufficient
water to sustain human life, including both drinking water and water required for
production of food in order to prevent starvation. 918

It is unclear what giving ‘special regard’ to ‘vital human needs’ entails. The Berlin Rules,
outlined in the table in 6.1, provides that states, in determining whether a use is reasonable and
equitable, must ‘[f]irst allocate waters to satisfy vital human needs’. 919 For our purposes, this
means that a state should consider any subsistence farming communities that are dependent on
the watercourse for food security. In fact, these rules define ‘vital human needs’ as ‘[w]aters
used for immediate human survival, including drinking, cooking and sanitary needs, as well as
water needed for the immediate sustenance of a household’.920

Various water disputes heard in tribunals have focused on the size of the population
dependent on the watercourse for agricultural purposes and the extent to which the population
depends on the watercourse for agriculture.921 For instance, a tribunal may consider the amount
of hectares that the downstream state has irrigated using the river’s waters and the amount of
population employed in agriculture.922

In some ways, the extra weight granted to vital human needs in the application of the
UNWC principles is compatible with criterion 2 of a RBA to FS, which requires the special
treatment and protection of vulnerable communities. This is because the additional weighting
protects those water uses required for subsistence farming, livelihoods and food security. At the
same time, a RBA to FS is broader than meeting basic food needs. Unsustainable or inequitable

918
Sixth Committee convening as the Working Group of the Whole Chairman: Mr. Chusei Yamada, Statement of
Understanding accompanying the Convention on the Law of Non-Navigational Uses of International Watercourses,
fifty-first session, Agenda item 144, A/51/869 (11 April 1997) [8].
919
Berlin Rules art 14(1).
920
Ibid art 3(20).
921
For instance, in a dispute between La Pampa and Mendoza provinces of Argentina concerning the Atuel River,
the Argentine Supreme Court applied the equitable use principle. In its decision, the court focused on the size of the
two province’s populations and their dependence on the river. The Mendoza Province had 100 000 inhabitants
dependent on agriculture for their livelihoods and more generally the economy of Mendoza was largely based on its
72 756 hectares of irrigated agriculture using the river waters. The La Pampa province had 3024 citizens that were
dependent on the waters for 15 000 hectares of irrigated agriculture. The court found in favour of the Mendoza
province based on the fact that it had the largest dependent population and the most irrigated land. For a summary
of this case and its relevance to interpreting art 10(1), see, Dr Owen McIntyre, Environmental Protection of
International Watercourses under International Law (Ashgate Publishing, Ltd., 2013); Alice Palmer and Cairo AR
Robb, International Environmental Law Reports (Cambridge University Press, 1999) 1–12.
922
Ibid.

Chapter 6: Water 227

water uses,923 even where they do not interfere with short-term food needs or subsistence
agriculture, are inconsistent with criterion 4 of a RBA to FS.

6.3.2.4 Enforceability of the United Nations Watercourse Convention

The UNWC has been endorsed by the ICJ, which provides it with further legitimacy and
illustrates its ability to influence transboundary watercourse decision-making.924 Furthermore,
the principles and guidance within the UNWC Convention has been incorporated into numerous
regional agreements.925 Regardless, the reluctance of states to enter into the UNWC presents a
significant barrier in addressing the link between water scarcity and food insecurity. The need for
cooperation between states intensifies the importance of states ratifying the convention.

The position of China provides an example of these implementation difficulties. China has
118 international rivers and lakes within its borders that then flow into 18 downstream
countries.926 Despite or perhaps because of China having one of the most hydro-geographically
advantaged situations in the world, China has voted against the Convention. The Chinese
delegate, Gao Feng, explained China’s vote against the adoption of the UNWC as being based on
territorial sovereignty.927 In particular, China did not adopt UNWC because the convention does
not affirm that ‘A watercourse State enjoys indisputable territorial sovereignty over those parts
of international watercourses that flow through its territory’.928 It seems then that the Chinese
Government views the UNWC as providing too much support for downstream states, which
could lead to the interference in China’s water and economic development plans. Because of its

923
‘Equity’ here refers to the human rights principle of equity not the principle of equitable utilisation in the UNWC.
924
Gabcikovo-Nagymaros Project (Hungary v Slovakia) [1997] ICJ Reports 7.
925
See, Alistair Rieu-Clarke and Flavia Rocha Loures, ‘Still Not in Force: Should States Support the 1997 UN
Watercourses Convention?’ (2009) 18 Review of European Community & International Environmental Law 185, 191
where the authors explained that ‘Since its adoption, the UN Watercourses Convention has influenced negotiations
on regional, basin-specific and bilateral agreements.’ For example, the member states of the Southern African
Development Community revised their 1995 Protocol on Shared Watercourses Systems in 2000...Other examples of
agreements drawing significantly from the Convention include the 2002 Framework Agreement on the Sava River
Basin, the 2002 Incomati and Maputo Agreement, the 2003 Protocol for the Sustainable Development of Lake
Victoria, the 2004 Agreement on the Establishment of the Zambezi Watercourse Commission and the 2007
Convention on the Volta River.
926
Daming He et al, ‘China’s Transboundary Waters: New Paradigms for Water and Ecological Security through
Applied Ecology’ (2014) 51 The Journal of Applied Ecology 1159, 1159–1160.
927
Patricia Wouters and Huiping Chen, ‘China’s “Soft-Path” to Transboundary Water Cooperation Examined in
Light of the Two UN Global Water Conventions- Exploring the “Chinese Way”’ (2013) 22 The Journal of Water
Law 229, 234.
928
Ibid.

228 Chapter 6: Water

hydro-geographical position, the decision of China to not adopt the UNWC severely limits the
effectiveness of the convention in Asia.

The surrounding literature, based on negotiations and statements made by states, has
identified number of key barriers to states ratifying the UNWC. These include:

 Entrenched mistrust between co-riparian states;

 Concern that the UNWC favours upstream states because it makes equitable use the
overarching principle;

 Concern that the UNWC favours downstream states because it has given a special
status to the rule of no harm;

 Lack of awareness amongst state miniseries about the content and relevance of the
UNWC;

 Lack of resources and capacity to implement; and

 Concerns that the Convention will interfere with state sovereignty.929

The above factors illustrate that political interests play a significant role in river
management, more so than objective evidence relating to the economic, social and environmental
benefits that flow from sustainable, cooperative management of transboundary fresh water
resources. As Bermauer explained, ‘[e]ffective management of transboundary fresh water is not
merely a legal or technological problem, but rather primarily a political one — that is, a problem
of designing and operating effective social institutions to govern the use of fresh water
resources’.930 Political barriers to sustainable water management and therefore food security is a
major issue. Nevertheless, even where states have chosen not to ratify the UNWC, they will be

929
Rieu-Clarke and Loures, above n 920; Joseph Dellapenna, Alistair Rieu-Clarke and Flavia Rocha Loures,
‘Possible Reasons for Slowing down the Ratification Process’ in Flavia Rocha Loures and Alistair Rieu-Clarke
(eds), The UN Watercourses Convention in Force : Strengthening International Law for Transboundary Water
Management (Taylor and Francis, 2013) 21; See, e.g., The United Nations Convention on the Law of the Non-
Navigational Uses of International Watercourses by Mr. Stephen C. McCaffrey, above n 908.
930
Thomas Bernauer, ‘Managing International Rivers’ in Oran R Young (ed), Global Governance: Drawing Insights
from the Environmental Experience (MIT Press, 1997) 155, 155.

Chapter 6: Water 229

subject to international pressure to align practices with the convention where neighbouring states
are signatories.931

As an example of UNWC’s influence despite non-adoption, China has concluded a number

of bilateral agreements with neighbouring states that mirror the UNWC in particular ways.932 In
fact, the 2001 Agreement reached between Kazakhstan and China includes the obligation on
parties to ‘adhere to the principles of equity and rationality, as well as closely cooperate in a
sincere, neighbourly and friendly manner’ and to ‘take efforts to prevent or mitigate serious harm
caused to a State Party’ by natural or human causes.933 This closely resembles the principle of
equitable use and the ‘no significant harm’ rule.934 Ultimately then, the UNWC is likely to
increase in significance as water scarcity continues.

6.3.2.5 Summary
Due to the fragmentation of international law, the UNWC does not refer to human rights or
food security. This is an issue in terms of meeting criterion 1 of a RBA to FS, which entails
provisions and objectives compatible with human rights law. Yet, the UNWC obligates states to
use and make decisions regarding transboundary watercourses in a way that is loosely
compatible with a RBA to FS.

When determining if a use is equitable, states must consider the populations dependent on
the watercourse in terms of their social and economic needs. Such a requirement is consistent
with criterion 2 of a RBA to FS, which requires special treatment, support and protections for
low-income, agricultural-based populations. According to the ‘equitable use’ principle, an
unsustainable use can be considered an inequitable use. This is compatible with criterion 4 of a
RBA to FS, which requires the sustainable use of agricultural resources, including the reduction

931
See, Beth Walker, China and India Ignore UN UNWC (18 August 2014) ChinaDialogue
<https://www.chinadialogue.net/blog/7229-China-and-India-ignore-UN-watercourses-convention/en> where
interviews with regional experts were carried out regarding their views of China and India not ratifing the UN
UNWC.
932
Rieu-Clarke and Loures, above n 920, 191.
933
Yegor Volovik, ‘Overview of Regional Transboundary Water Agreements, Institutions and Relevant Legal/Policy
Activities in Central Asia’ (Ministry for Foreign Affairs of Finland, European Union, United Nations Development
Project, February 2011) 45, 14.
934
Note that critical agreements still have not been reached regarding rivers such as the Mekong River. As well, see
Eric Sievers, ‘Transboundary Jurisdiction and Watercourse Law: China, Kazakhstan and the Irtysh’ (2002) 37 Texas
International Law Journal 1 for a critical review of the international relations between Kazakhstan and China
regarding sharing of the Irtysh river.

230 Chapter 6: Water

in environmental and human health harms that stem from agriculture. The ‘no significant harm’
rule imposes less duties on states prior to making a watercourse use decision than a RBA to FS
would require, but the rule does focus on preventing harm to vital human needs, which includes
food.

As this section has illustrated, however, the UNWC is limited by its exclusion of confined
groundwater aquifers, as groundwater is a critical water source for agriculture and food security.
Furthermore, the UNWC contribution to food security is restricted by its lack of implementation
to date, which suggests that its accountability mechanisms need to be improved in line with
criterion 3 of a RBA to FS.

6.3.3 The Convention on the Protection and Use of Transboundary Watercourses and
International Lakes
6.3.3.1 Relationship between the UNWC and the UNECE Water Convention
A RBA to FS requires not only access to and sustainable use of water but also access to
safe, uncontaminated water for use in agriculture. The UNWC is focused on water quantity in
terms of balancing uses of international watercourses. In contrast, the Convention on the
Protection and Use of Transboundary Watercourses and International lakes (UNECE Water
Convention) regulates water quality issues.935 Because of the ecological connections between
water quality and water quantity, the UNWC and the UNECE Water Convention complement
each other.936 In addition, the UNWC is drafted in terms that are more general and reiterates pre-
existing customary international norms related to transboundary watercourses. Whereas, the

935
Convention on the Protection and Use of Transboundary Watercourses and International Lakes, adopted 17
March 1992, United Nations, Treaty Series 1936, p. 269 (entered into force 6 October 1996), as amended by United
Nations Economic and Social Council, Economic Commission for Europe, Meeting of the Parties to the Convention
on the Protection and Use of Transboundary Watercourses and International Lakes, Amendment to Articles 25 and
26 of the Convention, by decision III/1, following proposal by the Government of Switzerland, UN Doc
MP.WAT/2003/4, 20 August 2003, amendments (entered into force 6 February 2013) (UNECE Water Convention).
For information regarding the interaction between the Water Convention and the UNWC, see, Attila Tanzi, ‘The
Relationship between the 1992 UNECE Convention on the Protection and Use of Transboundary Watercourses and
International Lakes and the 1997 UN Convention on the Law of the Non Navigational Uses of International
Watercourses’ (Report of the UNECE Task Force on Legal and Administrative Aspects, February 2000) 58, 5
<http://www.unece.org/fileadmin/DAM/env/water/publications/documents/conventiontotal.pdf>.
936
Over-use that leads to a reduced water flow of an international watercourse also decreases the capacity of the
watercourse to absorb contaminants.‘UNECE Welcomes the Entry into Force of the United Nations Watercourses
Convention’ US Fed News Service, Including US State News (Washington, D.C., India), 25 May 2014
<http://search.proquest.com.ezp01.library.qut.edu.au/docview/1528214266?pq-origsite=summon>.Tanzi, above n
930, 5.

Chapter 6: Water 231

UNECE Water Convention commonly has more detailed provisions and applies a range of
international environmental principles. These differences help prevent contradictions occurring
between the instruments, and mean that the UNECE Water Convention, with its more detailed
provisions, can be used to interpret the UNWC.937

6.3.3.2 Principles underpinning the UNECE Water Convention

The United Nations Economic Commission for Europe (UNECE) adopted the Water
Convention in 1992 for use by European countries. During 2013, amendments of the UNECE
Water Convention entered into force that allowed non-European states to become parties to the
UNECE Water Convention.938 Accordingly, non-European states have been encouraged by the
UN Secretary-General, Ban Ki-Moon, to ratify the convention.939

The UNECE Water Convention applies to ‘[a]ny surface or ground waters which mark or
cross or are located on boundaries between two or more States’.940 Unlike the UNWC then, the
scope of this convention includes groundwaters that are in confined aquifers, that is, groundwater
not connected to a river. Subsequently, this broader scope aligns well with food security, and in
particular criterion 4 of a RBA to FS, because agriculture depends on access to and the quality of
groundwater.

The first part of the UNECE Water Convention deals with a set of general duties and
principles that apply to all parties. States need to take all appropriate measures to:

 Prevent, control and reduce water pollution that is causing or is likely to cause
transboundary impact;941

937
‘UN Watercourses Convention and the UNECE Water Convention’ (User’s Guide Fact Sheet Series: Number 12,
The UN Watercourse Convention, World Wildlife Foundation) 2
<http://www.unwatercoursesconvention.org/documents/UNWC-Fact-Sheet-12-Relationship-with-UNECE-Water-
Convention.pdf>. Götz Reichert, Entry into Force of the UN Watercourses Convention – Should Europe Care? (21
July 2014) International Water Law Project <http://www.internationalwaterlaw.org/blog/2014/07/21/dr-gotz-
reichert-entry-into-force-of-the-un-watercourses-convention-should-europe-care/>.
938
Amended articles of the Water Convention include arts 25-26.
939
Secretary-General Bank Ki-Moon, Latest Statements, Budapest, Hungary, 8 October 2013- Secretary-General’s
Opening Remarks at Budapest Water Summit [as Prepared for Delivery] (2014) United Nations
<http://www.un.org/sg/statements/index.asp?nid=7184>.
940
UNECE Water Convention art 1(1).
941
Ibid art 2(2)(a).

232 Chapter 6: Water

  Ensure that transboundary waters are ‘used with the aim of ecologically sound and
rational water management, conservation of water resources and environmental
protection’;942

 Ensure that transboundary waters are used in a reasonable and equitable way;943

 Ensure conservation and where necessary restoration of ecosystems.944

The general principles of the UNECE Water Convention reinforce the equitable use
principle and the ‘no significant harm’ rule, such principles as discussed are broadly consistent
with a RBA to FS, including criterion 2 and 4 in particular. Unlike the UNWC though, the
UNECE Water Convention emphasises an eco-system approach to natural resource management
throughout its provisions.

The use of an eco-system approach is an important contribution that the UNECE Water
Convention makes to the international regulation of agriculture. This is because the quality and
quantity of waters are interrelated with each other and with other agricultural resources;
therefore, to be effective laws and policies should be responding to these ecological dynamics.
As the High Level Panel of Experts on Food Security and Nutrition explained ‘For future food
security, land and water management needs to preserve ecosystem functions and ensure the
future of the resource’.945

Essentially, an eco-system approach focuses on the relationships between and within

natural resources.946 The Conference of Parties to the Convention on Biological Diversity
described it as ‘a strategy for the integrated management of land, water and living resources that

942
UNECE Water Convention art 2(2)(b).
943
Ibid art 2(2)(c).
944
UNECE Water Convention art 2(2)(d).
945
‘Water for Food Security and Nutrition’, above n 885, 20.
946
Ian Hannam, ‘Legal Framework for the Ecological and Biodiversity Needs of Soil: Progress towards an
International Instrument for the Sustainable Use of Soil’ in Michael I Jeffery, Jeremy Firestone and Karen Bubna-
Litic (eds), Biodiversity Conservation, Law and Livelihoods: Bridging the North-South Divide: IUCN Academy of
Environmental Law Research Studies (Cambridge University Press, 2008) 329, 334.

Chapter 6: Water 233

promotes conservation and sustainable use in an equitable way’.947 This approach to regulation
and environmental management is compatible with a RBA to FS because agriculture relies on
functioning ecosystems, and water quality and quantity is closely connected to land use and soil
health. Furthermore, an eco-system approach is akin to agroecology and the methods to improve
soils and water quality and efficiency are the same agroecological approaches. Consequently, the
eco-system approach to water and land use in the UNECE Water Convention is compatible with
criterion 4 of a RBA to FS, which emphasises an enabling environment for agroecology and the
sustainable use of natural resources.

6.3.3.3 The duty to prevent, control and reduce

The main obligation that the UNECE Water Convention places on state parties is to
‘prevent, control and reduce any transboundary impact’.948 Seemingly similar to the meaning of
‘significant harm’ in the UNWC, ‘transboundary impact’ means ‘any significant adverse effect
on the environment resulting from a change in the conditions of transboundary waters caused by
a human activity’.949 The impact must originate from one state party’s jurisdiction and the effect
must be experienced in the jurisdiction of another state party.950 In reflection of the eco-system
approach, ‘transboundary impacts’ include adverse effects on human health and safety, soil and
flora and fauna.951 Hence, the term ‘transboundary impact’ encompasses situations where the
natural resources used for agriculture are adversely affected by water pollution if the cause of the
pollution originated in a different jurisdiction.

In order to ‘prevent, control and reduce transboundary impact’, state parties are required
under Article 3 to develop and implement their legal and institutional frameworks to ensure,
among other things, that:

 ‘The emission of pollutants is prevented, controlled and reduced at the source through
the application of, inter alia, low- and non-waste technology’;952

947
Conference of the Parties, Convention on Biological Diversity, Report of the Fifth Meeting of the Conference of
the Parties to the Convention on Biological Diversity- Decision V/6 Ecosystem Approach, UN Doc
UNEP/CBD/COP/5/23 (2000) para A(1).
948
UNECE Water Convention 2(1)
949
UNECE Water Convention art 1(2).
950
Ibid.
951
UNECE Water Convention art 1(2).
952
UNECE Water Convention art 3(1)(a).

234 Chapter 6: Water

  ‘Appropriate measures and best environmental practices are developed and
implemented for the reduction of inputs of nutrients and hazardous substances from
diffuse sources, especially where the main sources are from agriculture’;953

 ‘Sustainable water-resources management, including the application of the ecosystems

approach, is promoted’.954

It seems then that the UNECE Water Convention has more detailed duties for upstream
states than the UNWC, and that ‘transboundary harm’ and the duty to prevent it, are more
onerous as a result. Subsequently, the UNECE Water Convention’s list of preventative actions
that must be undertaken by states is more consistent with criterion 1 of a RBA to FS, which
emphasises the state duty to protect human rights, than the UNWC’s more ambiguous standard of
‘appropriate preventative measures’ required under the ‘no significant harm’ rule. Moreover, the
clarity of the UNECE Water Convention’s approach to downstream harm is consistent with
human rights procedural principles described in criterion 3 of a RBA to FS.

To be in accordance with Article 3, extracted above, state parties are required to have
regulations and other governance arrangements in place to influence the amount and method of
external input application on farms. Significantly, the UNECE Water Convention encourages the
imposition for uses of pesticides and fertilisers that are not moderate or efficient given the
ecological characteristics of the farm.955 The regulation of external inputs to avoid environmental
and human health harms is consistent with criterion 1 of a RBA to FS, which encompasses the
state duty to protect against human rights violations, and criterion 4, which entails the sustainable
use of agricultural resources.

State parties are also required under article 3 of the UNECE Water Convention to facilitate
the uptake of farming practices that prevent, control and reduce agricultural run-off by adopting
best environmental practices and low- and non-waste technology. In the agricultural context,
low- and non-waste technology clearly encompasses agroecological farming methods, which use
less external inputs and rely on the reuse and recycle of inputs. Hence, states can meet their

953
UNECE Water Convention art 3(1)(g).
954
UNECE Water Convention art 3(1)(i).
955
This would require some clear standards for each region and water monitoring mechanisms.
Compliance may be difficult to ensure especially in large agricultural countries or countries with a weak rule of law.

Chapter 6: Water 235

obligations under the UNECE Water Convention by facilitating a range of agroecological
farming methods. Such methods include, for instance, the uptake of organic fertilisers (eg
manure), agroecological pest management methods and the planting of nitrogen fixing cropping
systems (eg legumes).956 At the same time, low- and non-waste technology can be developed for
industrial farms, for instance, information communication technologies can help target pesticide
spray thus reducing pesticide drift. In essence then, states are obligated to scale up sustainable
farming practices that reduce water pollution, which directly aligns with criterion 4 of a RBA to
FS.

The UNECE Water Convention further provides that a state must have stricter
requirements concerning particular agricultural inputs when ‘the quality of the receiving water or
the ecosystem so requires’. The convention suggests that these stricter requirements may include
a prohibition of an input in an individual case.957 In the context of agriculture, this may involve
the banning of a particular substance or banning farms near a particular water source from using
a particular substance. For instance, policies and regulations could be implemented to phase out
concentrated feeding lots near water sources, as they generate significant run-off.958

The suggestion of banning a agricultural in-put or prohibiting the use of a pollutant in

particular farming areas is a critical contribution to the international regulation of agriculture.
Prohibiting particular pollutants where necessary to protect human or environmental health is
compatible with state obligations to protect human rights (criterion 1) and facilitates the
sustainable use of agricultural resources. As criterion 4 illustrates, a RBA to FS requires a
regulatory framework that reduces the harmful impacts of agriculture, and prohibiting particular
substances is a direct way to achieve this. However, prohibitions on particular substances may
not be allowed under trade laws depending on the scientific evidence supporting the ban.959

956
Carroll P Vance, ‘Enhanced Agricultural Sustainability Through Biological Nitrogen Fixation’ in Andrzej
Legocki, Hermann Bothe and Alfred Puehler (eds), Biological Fixation of Nitrogen for Ecology and Sustainable
Agriculture (Springer Science & Business Media, 2013) vol 39, 179, 180.
957
Ibid 3(1)(d).
958
For information on concentrated animal feeding lots and pollution, see eg, Raymond Loehr, Pollution Control for
Agriculture (Elsevier, 2012) 2.
959
The provisions relevant to this statement are discussed in Chapter 8 on Pesticides.

236 Chapter 6: Water

6.3.3.4 Joint management of transboundary watercourses
In addition to the obligation to prevent, control and reduce agricultural pollution, state
parties are required to ‘[e]nter into bilateral or multilateral agreements or other arrangements,
where these do not yet exist’ and ‘provide for the establishment of joint bodies’.960 Subsequently,
state parties to the UNECE Water Convention must cooperate beyond that required under the
UNWC. International cooperation with the UNWC only encourages states to enter into
multilateral agreements and encourages the establishment of joint bodies but does not make such
formal cooperation an obligation.961 Interestingly though, the UNECE Water Convention outlines
the various tasks of such joint bodies, which include ‘To develop concerted action programmes
for the reduction of pollution loads from both point sources (eg municipal and industrial sources)
and diffuse sources (particularly from agriculture)’.962

The reason these provisions are important for a RBA to FS is because efficient, cooperative
management of shared waters has been shown to lead to better outcomes for food security and
agriculture than states functioning alone. For instance, Senegal, Mali and Mauritania are co-
riparian states on the Senegal River. They set up a joint body to administer their combined
investments in the building of dams and other infrastructure along the river that aids in water
access for agriculture.963 In line with this example, the UN-Water has investigated various
examples of joint management over shared watercourses.964 It observed that effective joint
management enables:

[b]etter ecological management… [and]… can yield increased food and energy
production, improved irrigation can contribute to poverty reduction, help control
migration from rural areas to urban centres and transboundary early-warning systems can
minimize loss.965

960
Ibid art 9(1).
961
Water Convention art 9(2). Article 24(1) of the UNWC does obligate states to consult with other co-riparian states
regarding the management of a shared watercourse, which may result in the establishment of a joint management
system, but states are under no obligation to establish joint mechanism.
962
Ibid art 9(2)(f).
963
Susanne Schmeier, Governing International Watercourses: River Basin Organizations and the Sustainable
Governance of Internationally Shared Rivers and Lakes (Routledge, 2012) 6.
964
The UN-Water is an inter-agency coordination mechanism on fresh water-related issues for the UN.
965
UN Water, Transboundary Waters: Sharing Benefits, Sharing Responsibilities (2008) 3.

Chapter 6: Water 237

 Subsequently, the UNECE Water Convention’s encouragement of joint management and
its guidance on how to carry out these cooperative arrangements can improve the food security
status of populations dependent on a watercourse for food and livelihood security. Such an
approach is consistent with states’ commitments under the ICESCR to cooperate internationally
for the realisation of the right to food and water.966 Furthermore, joint water management of
transboundary watercourses can be a vehicle for building trust, avoiding conflict and
collaborating on other policy fronts (eg education, health, agriculture, etc).967 The incidental
benefits that flow from the joint management of shared watercourses can also contribute to food
security.

6.3.3.5 Related non-binding instruments to the Water Convention

The Model Provisions on Transboundary Groundwaters and the Protocol on Water and
Health are non-binding instruments adopted by the Meeting of the Parties to the UNECE Water
Convention. As these instruments are closely related to agriculture and food security, each is
considered in turn.

(a) The Model Provisions on Transboundary Groundwaters

Even though the UNWC and the UNECE Water Convention encompass groundwaters to a
differing extent, both instruments have been criticised for primarily focussing on surface waters,
with only a few provisions specific to groundwater.968 This gap is likely due to a lack of
understanding regarding groundwater at the time when both conventions were drafted. As the
Swiss Federal Institute of Aquatic Science and Technology explained in 2000 (after UNWC and
UNECE Water Convention had been drafted):

Until recently groundwater was regarded as an underground reservoir that is virtually

sealed off at both the top and bottom; consequently, it was thought to be in only very
limited contact with the aboveground environment. …Groundwater is now acknowledged

966
ICESCR art 11(1).
967
See, eg, Roberto Martin Hurtado, ‘Introduction about the Geopolitical Benefits of Transboundary Water
Cooperation’ (United Nations Economic Commission for Europe at the Workshop "Counting our gains: Sharing
experiences on identifying, assessing and communicating the benefits of transboundary water cooperation”, Geneva,
Switzerland, 22 May 2014) <http://www.unece.org/env/water/workshop_benefits_cooperation_2014.html>.
968
Laura Covino-Kerpelman, ‘UN / ECE / Water Convention: Transboundary Groundwater and Convention
Implementation’ (2012) 42 Environmental Policy and Law 122, 122.

238 Chapter 6: Water

 to be an integral part of natural water systems and a component of the hydrological
cycle.969

To fill this gap in international regulations, the Model Provisions on Transboundary

Groundwaters (MPTG) was adopted in 2012 by the parties to the UNECE Water Convention.970
Fortunately, the MPTG was designed to be used by both parties and non-parties when they are
negotiating, entering into or reforming agreements related to transboundary groundwaters.971

Similar to the UNWC, the normative foundation of the MPTG is the principle of equitable
use and the ‘no significant harm’ rule, with explicit references to other international
environmental law principles.972 The MPTG holds that a determination of whether a use is
equitable and reasonable will be decided on a case-by-case basis taking into account factors such
as the population dependent on an aquifer. Given the special nature of groundwater, the MPTG
explains that ‘Specific care in the application of the two principles to groundwaters is required in
relation to inter alia the lower capacity of self-purification of groundwater, as compared to
surface water’.973 Arguably, this provision implies that ‘equitable use’ and the ‘no significant
harm’ rule impose more stringent standards in the context of groundwater than surface water.
This is an appropriate response as groundwater is much harder to monitor and remediation of
groundwater is difficult, costly and sometimes impossible. 974

969
Urs von Gunten, ‘Ground Water: From Drinking Water Reservoir to a Water Body’ (EAWAG News 49, Swiss
Federal Institute of Aquatic Science and Technology, 2000) 3.
970
Previous soft-law instruments tried to establish rules for groundwater use. These were: The International Law
Commission’s Draft Articles on the Law of Transboundary Aquifers (which did not get approval by the UN General
Assembly) and specific requirements in the Berlin Rules. See, Berlin Rules arts 29-31.
971
United Nations Economic Commission for Europe, Model Provisions on Transboundary Groundwaters, UN Doc
ECE/MP.WAT/40 (31 October 2013) (MPTG).
972
Ibid arts 1, 5. The commentary to MPTG explained activities that jeopardise the sustainability of groundwater
sources could not be an equitable or reasonable use.
973
Ibid.
974
Once contaminated, it is highly difficult and expensive to improve or correct and in some cases impossible. B L
Morris et al, ‘Groundwater and Its Susceptibility to Degradation: A Global Assessment of the Problem and Options
for Management’ (RS. 03-3, United Nations Environment Program, 2003) vii. See generally, James A Goodrich,
Benjamin W Lykins and Robert M Clark, ‘Drinking Water from Agriculturally Contaminated Groundwater’ (1991)
20 Journal of Environment Quality 707; J F Power and J S Schepers, ‘Nitrate Contamination of Groundwater in
North America’ (1989) 26 Agriculture, Ecosystems & Environment 165; See also, Aaron King et al, ‘Groundwater
Remediation and Management for Nitrate’ (Technical Report 5 in: Addressing Nitrate in California’s Drinking
Water with a Focus on With a Focus on Tulare Lake Basin and Salinas Valley Groundwater. Report for the State
Water Resources Control Board Report to Legislature, Center for Watershed Sciences, University of California, July
2012) 43 where methods to reduce nitrate in groundwater are discussed and logistical barriers highlighted.

Chapter 6: Water 239

 The MPTG connects the principle of equitable use to intra- and intergenerational equity. It
does this by requiring that states, in determining whether a use of transboundary groundwater is
equitable:

Take into account the imperative of conservation, environmental protection and future
availability of waters, and not limit themselves to considering whether the planned
utilization allows for an optimal use of the waters from a purely short-term economic
point of view.975

Consideration of long-term impacts is compatible with a RBA to FS, as discussed in

Chapter 3 on the sustainability and intergenerational dimensions of a RBA to FS. In particular,
this approach to determining whether a use is equitable reflects criterion 3, in particular human
rights principles pertaining to equity, and criterion 4 of a RBA to FS.

In order to ensure sustainable and equitable use, parties are encouraged by the MPTG to
agree on a maximum amount of water that can be withdrawn yearly from a particular body of
groundwater.976 As a result, the MPTG combines water quality and quantity concerns, which
previously have been dealt with as separate issues in international law despite their ecological
connections. The linkage of these water issues is important for food security given the threats
poised to food safety and food availability where water levels are reduced and pollution
increases. At the same time, imposing limits on the amount of water withdrawn from
groundwater sources could negatively impact on agriculture and food security if rain-fed
agricultural practices and technologies have not been pursued and improved prior to the
limitations being imposed.

Provision 5 outlines the measures parties should adopt to ‘prevent, control and reduce’ the
pollution of transboundary groundwater. These measures include the regulation of ‘intensive
agricultural practices’.977 This is the first international instrument considered so far to refer to
industrial agricultural practices and the need to regulate these practices more carefully to reduce
their impact. Thus, this provision reflects criterion 4 of a RBA to FS.

975
Ibid commentary to provision 2, 6.
976
MPTG art 2, [5].
977
Ibid art 5(2)(c).

240 Chapter 6: Water

 As part of their obligation to ‘prevent, control and reduce’ groundwater pollution, the
MPTG states that ‘The Parties shall establish and implement joint or coordinated plans for the
proper management of their transboundary groundwaters’.978 As discussed, such provisions are
consistent with a RBA to FS because they encourage international cooperation that can increase
the benefits obtained from the water source.979

Overall, the MPTG is highly compatible with a RBA to FS, and particularly criterion 3,
which requires the incorporation of human rights principles into international instruments, and
criterion 4, which requires an enabling framework for the sustainable use of agricultural
resources. Furthermore, the MPTG is an example of a non-binding international instrument
couched in terms that are more influential. The MPTG uses language such as ‘Parties shall adopt
measures’ and refers to its provisions as ‘obligations’. This language significantly differs from
other non-binding instruments examined thus far, where provisions are framed as
recommendations. It seems then that the MPTG is designed to be more persuasive on state
actions than standard non-binding guidelines, and this is a welcome development for a RBA to
FS, given the lack of international groundwater regulation to date.980

(b) The Protocol on Water and Health

The Protocol on Water and Health aims to protect, in national, transboundary and
international contexts, human health and well-being within the framework of sustainable
development.981 The Protocol provides that states must take ‘all appropriate measures to prevent,
control and reduce water-related diseases’ within a framework of sustainable use of water
resources, and in a way that ensures an environmental water quality that ‘does not endanger
human health, and protection of water ecosystems’.982

978
MPTG art 7.
979
The benefits of joint management for food security and the progressive realisation of human rights was explained
above in Part III, section (d).
980
Generally, in non-binding instrument terms such as ‘Parties’, ‘Shall’ and ‘Obligation’ are not used in non-binding
instruments as they reflect an intention for the instrument to be binding. See, eg, Guidance on Non-Binding
Documents (2016) U.S. Department of State <http://www.state.gov/s/l/treaty/guidance/>.
981
United Nations Economic Commission for Europe, The Protocol on Water and Health, UN Doc
MP.WAT/2000/1EUR/ICP/EHCO 020205/8Fin (18 October 1999) (The Protocol on Water and Health).
982
Ibid art 4 (1).

Chapter 6: Water 241

 Significantly, the protocol requires that parties ‘Establish and publish national and/or local
targets for the standards and levels of performance that need to be achieved or maintained for a
high level of protection against water-related disease’.983 These standards are to be periodically
revised and should be reached within a transparent and fair framework that promotes public
participation. The targets are to cover: the occurrence of discharges of untreated waste water, the
quality of discharges from wastewater used for irrigation, the quality of drinking water, and the
effectiveness of systems to reduce and control pollution from sources of all kinds (eg
agriculture).984 These targets must be published with respective target dates.985

The aim of the protocol and the targets it has set are unique and significant for a RBA to FS
in a number of ways. Firstly, this protocol is one of the few international instruments that directly
focuses on the connection between environmental protection and human health and well-being.
Recognising this connection is important for addressing the fragmented nature of international
law in which human rights and environmental considerations are generally separate.986
Addressing this area of fragmentation is important for a RBA to FS as agriculture exemplifies the
relationship between human and environmental health.

Secondly, the protocol’s specific targets and related requirements go beyond merely
providing a list of vague, aspirational principles. Instead, and similar to the MPTG, the protocol
reflects a more influential form of non-binding international instruments in comparison to most
other non-binding instruments.987 Accordingly, the Protocol on Water and Health is an example
of how non-binding instruments could develop stronger accountability mechanisms. Improving
the accountability mechanisms of non-binding instruments is consistent with strengthening the
rule of law at the international level, as required under criterion 3 of a RBA to FS.

Lastly, the Protocol on Water and Health regulates both national and transboundary water
management and includes groundwater, surface fresh water and waste water.988 Thus, the

983
Protocol on Water and Health art 6(1)-(2).
984
Ibid 6(2)(a), (g)-(i), (m).
985
Protocol on Water and Health 6(3).
986
For a discussion on this, see Attila Tanzi, ‘Reducing the Gap between International Water Law and Human
Rights Law: The UNECE Protocol on Water and Health’ (2010) 12 International Community Law Review 267.
987
Ibid art 6(1).
988
The Protocol on Water and Health art 3.

242 Chapter 6: Water

protocol sets standards for domestic water management, which otherwise have not been directly
subject to international instruments and oversight.

Encompassing domestic water sources, as well as transboundary, means that the protocol
can cover a broad range of water issues that affect agriculture and food security. As an example,
the protocol can be used to guide the management of wastewater use in agriculture. An estimated
10 per cent of the global population depends on food grown with polluted wastewater.989 Given
the risks to environmental services, food safety and food security from using polluted
wastewater, much more needs to be done to regulate wastewater use, especially in light of
urbanisation. Therefore, the Protocol on Water and Health is a critical first step to addressing
significant gaps in international water regulation in the context of agriculture and food security.

6.4 CONCLUSION

The public international regulatory mechanisms that seek to regulate water are generally
consistent with a RBA to FS. Due to the fragmented nature of international law, international
environmental agreements like the treaties examined in this chapter do not refer to human rights
obligations. Nevertheless, their provisions and underlying principles are generally compatible
with human rights, and therefore criterion 1 of a RBA to FS. The recognition of the human right
to water, and the approach taken in the UNECE Water Convention, indicate that future
coordination is likely between international water law and international human rights law.

Nonetheless, international water law has significant gaps that limit the contributions it
makes to the international regulation of agriculture in the context of a RBA to FS. These gaps
include the lack of binding international regulations for groundwater and domestic water sources
(including wastewater). The UNECE Water Convention and its non-binding protocols are a
useful first step. Yet, given the importance of groundwater and wastewater in agriculture for food
security, a binding instrument would be useful for influencing the actions of states and third-
parties.

989
Wastewater, Food Security and Production (2014) GRID-Arendal, UNEP
<http://www.grida.no/publications/rr/sickwater/page.aspx?id=4669>.

Chapter 6: Water 243

 In addition, sustainable soil management is a critical part of conserving and improving
water quantity and quality. However, there was no integration between the instruments dealing
with agricultural soils and those dealing with freshwater. This represents a lost opportunity to
improve the international regulation of agriculture. The eco-system approach encouraged in the
UNECE Water Convention may be an avenue for future integration between the land use and
water regimes. Such an approach may strengthen the international rule of law (criterion 3) and
better enable agroecological practices (criterion 4).

244 Chapter 6: Water

 Seeds

7.1 OVERVIEW

This chapter examines the regulations that intersect with the crop genetic resources, which
are primarily seeds, used in agriculture. Until this chapter, the identified regulatory framework
surrounding agriculture has concerned on-farm natural resources used to grow crops and produce
livestock. Now the regulatory framework begins to directly encompass both on-farm and off-
farm inputs. In industrial agricultural systems, inputs are generally synthetic, produced externally
by companies and sold to farmers through distributors. In more agroecological farming systems,
inputs are produced on-farm. For example, crop residue is used as organic compost and seeds are
saved or exchanged post-harvest.

This chapter evaluates the international regulation of crop genetic resources for food and
agriculture against a RBA to FS. It begins by describing how food security depends on farmers
and researchers having access to a large, evolving pool of genetic resources. Hence, this chapter
argues that, in order to be consistent with a RBA to FS, international regulations have to treat
plant genetic resources for food and agriculture as non-exclusive, common pool resources to the
greatest extent possible. It goes on to critically analyse the main international instruments that
establish exclusive rights over particular crop genetic materials, which includes the WTO
Agreement on Trade-Related Aspects of Intellectual Property. It closes with an examination of
the FAO’s International Treaty of Plant Genetic Resources for Food and Agriculture. This
instrument is a critical first step towards facilitating the common pooling of plant genetic
resources for food and agriculture in a manner consistent with a RBA to FS.

Chapter 7: Seeds 245

7.2 SEEDS AND A RIGHTS-BASED APPROACH TO FOOD SECURITY

7.2.1 Plant Genetic Resources for Food and Agriculture

Plant genetic resources for food and agriculture are contained in seeds and other planting
materials, including roots, bulbs and cuttings, which are used to grow plant varieties. It is defined
by the FAO as ‘[a]ny genetic material of plant origin of actual or potential value for food and
agriculture’.990 Seeds are the main source of plant genetic materials for food and agriculture. For
ease of understanding, this chapter will use the terms ‘crop genetic resources’ and ‘seeds’
interchangeably to refer to plant genetic resources for food and agriculture.

Crop genetic materials are essential to agriculture and food security, as without them
farmers cannot grow food or feed the livestock required for food availability. In addition, crop
genetic materials are central to food security because they are the basis of agrobiodiversity.
Agrobiodiversity is a term encompassing ‘[t]he diversity of genetic resources (varieties) and
species used for food, fodder, fibre, fuel and pharmaceuticals’.991 In other words,
agrobiodiversity is the diversity of the species used on-farms. There are two ways to conserve
agrobiodiversity. The first is through ex-situ conservation strategies, which are essentially seed
banks. The second is in-situ conservation, which refers to on-farm activities that conserve and
develop agrobiodiversity.

The reason agrobiodiversity is essential to food security is because diversity underpins the
ecosystem services on farms, including nutrient cycling, soil fertility, the regulation of pests and
diseases, and reduction in the effects of weather events and changing climates.992 Furthermore,

990
What Are Seed Systems? (2015) Food and Agriculture Organization of the United Nations
<http://www.fao.org/agriculture/crops/thematic-sitemap/theme/compendium/tools-guidelines/what-are-seed-
systems/en/>.
991
‘What Is Agrobiodiversity?’ (Fact Sheet, Training Manual ‘Building on Gender, Agrobiodiversity and Local
Knowledge’, Food and Agriculture Organisation of the United Nations, 2004)
<http://www.fao.org/docrep/007/y5609e/y5609e00.htm#Contents>.
992
Ahmed Djoghlaf, Secretariat of the Convention on Biological Diversity, ‘World Food Security: The Challenges
of Climate Change and Bioenergy’ (16 October 2008) <https://www.cbd.int/doc/speech/2008/sp-2008-10-15-food-
en.pdf> accessed 25 June 2015. In addition, on-farm diversity is critical to improving the ability of soil to store
carbon, for reducing the carbon emissions from agriculture and in order for farms to adapt to climate change by
developing new varieties suitable to changing climates. For more information regarding this, see, eg, ‘Global
Biodiveristy Outlook 3’ (Secretariat of the Convention on Biological Diversity, 2010) 94, 52
<http://www.cbd.int/doc/publications/gbo/gbo3-final-en.pdf>.

246 Chapter 7: Seeds

preserving diversity on farms is critical for conserving varieties that may seem insignificant now
but can turn out to be extremely valuable for food security in the future.993

Despite its significance, agrobiodiversity has been rapidly decreasing due largely to
industrial agricultural practices and market demand for standardised crops and foods (eg sweet
corn, beef, sugar cane).994 The farming practices that contribute to agrobiodiversity loss include
monoculture cropping, intensive use of external inputs and the extreme narrowing of crops used
in food production.995 On this point, Johns and Eyzaguirre explained that, ‘Degradation of
ecosystems, simplification of diets and loss of species, and of the knowledge of them, expose
[people] to new health challenges and undermine the adaptive resilience inherent in diversity’.996
In fact, the FAO reports that only 30 plant species, of the 30 000 edible plant species, are used to
feed the world.997 This lack of dietary diversity has led to micronutrient deficiencies,998 which
are unequally experienced by disadvantaged groups in society.999

993
For an in-depth analysis of this, see J Hernandez Bermejo and J Leon (eds), Neglected Crops: 1492 from a
Different Perspective (Food and Agricultural Organization of the United Nations, 1994).
994
‘Global Biodiveristy Outlook 3’, above n 987, 51.
995
‘Wildlife in a Changing World: An Analysis of the 2008 IUCN Red List of Threatened Species’, above n 175;
Smith et al, above n 175; Geiger et al, above n 175; McLaughlin and Mineau, above n 175; Thrupp, above n 175.
Along with the losses in ecosystem services, these industrial farming practices make crops susceptible to diseases
and climate change due to the lack of diversity. Brenda B Lin, ‘Resilience in Agriculture through Crop
Diversification: Adaptive Management for Environmental Change’ (2011) 61 BioScience 183; Thrupp, above n 175;
Douglas Bardsley, ‘Risk Alleviation via in Situ Agrobiodiversity Conservation: Drawing from Experiences in
Switzerland, Turkey and Nepal’ (2003) 99 Agriculture, Ecosystems & Environment 149; Henk van den Berg, ‘IPM
Farmer Field Schools: A Synthesis of 25 Impact Evaluations’ (Food and Agricultural Organization of the United
Nations;Wageningen University, 2004) <ftp://ftp.fao.org/docrep/fao/006/ad487E/ad487E00.pdf>. See also,
Youyong Zhu et al, ‘Genetic Diversity and Disease Control in Rice’ (2000) 406 Nature 718 where the authors found
‘Disease-susceptible rice varieties planted in mixtures with resistant varieties had 89% greater yield and blast was
94% less severe than when they were grown in monoculture’.
996
Johns and Eyzaguirre, above n 9.
997
Seeds, above n 100.
998
Industrial methods, coupled with food processing developments, has dramatically increased the availability and
affordability of ultra-processed food products, which tend to come from a few commodity crops, particularly corn,
soy, wheat and sugarcane. See, ‘Biodiversity for Food and Agriculture: Contributing to Food Security and
Sustainability in a Changing World’ (Outcomes of an expert workshop held by FAO and the platform on
agrobiodiversity research from 14-16 April 2010 in Rome, Italy, Food and Agriculture Organisation of the United
Nations and the Platform for Agrobiodiversity Research, 2011) 18.
999
See, eg, van Ommen et al, above n 7; Tania P Markovic and Sharon J Natoli, ‘Paradoxical Nutritional Deficiency
in Overweight and Obesity: The Importance of Nutrient Density’ (2009) 190 Medical Journal of Australia
<https://www.mja.com.au/journal/2009/190/3/paradoxical-nutritional-deficiency-overweight-and-obesity-
importance-nutrient>; La Moreno, A Sarria and Bm Popkin, ‘The Nutrition Transition in Spain: A European
Mediterranean Country’ (2002) 56 European Journal of Clinical Nutrition 992.

Chapter 7: Seeds 247

 Although this chapter focuses on agrobiodiversity for food security in the context of crop
genetic resources, food security also depends on diversity in livestock genetic resources. Around
17 per cent of all livestock breeds are at risk of extinction, and a further 58 per cent of breeds
lack population data.1000 There is a Global Plan of Action for Animal Genetic Resources,1001 but
in comparison to crop genetic resources, international regulation and institutional support for
livestock diversity is rudimentary. Hence, animal genetic resources represent another gap in the
international regulatory framework for agriculture.

7.2.2 Seed Systems and Property Rights

Plant genetic materials flow through informal and formal seed systems and may be either a
privately owned good, part of the commons, or a public/open-access resource. This section
explores the various ways farmers access crop genetic resources and explores the regulatory
approaches.

7.2.2.1 Informal seed systems

Informal seed systems play an irreplaceable and unique role in preserving and fostering
agrobiodiversity for food security.1002 This type of seed system is made up of decentralised
production and exchange networks that farmers and researchers participate in by saving,
improving and sharing seeds. As a result, informal seed systems depend on crop genetic
resources being a common-pool resource where access and use is relatively free with some rules

1000
‘The Second Report on the State of the World’s Animal Genetic Resources for Food and Agriculture’ (FAO
Commission on Genetic Resources for Food and Agriculture, 2015) 34 <http://www.fao.org/3/a-i4787e.pdf>.
1001
The Global Plan of Action for Animal Genetic Resources was endorsed by the 34th FAO Conference. It sets out
strategic priorities for national governments and international cooperation in relation to livestock diversity and
sustainable use. These priorities relate to the monitoring of trends in animal genetic resources, regulatory actions to
promote sustainability in animal production systems, conservation plans for conserving genetic diversity and
practical implementation considerations. Global Plan of Action for Animal Genetic Resources and the Interlaken
Declaration, adopted by the International Technical Conference on Animal Genetic Resources, Food and
Agriculture and the Food and Agriculture Organization of the United Nations (7 September 2007).
1002
See, eg, Ulf Narloch, Adam G Drucker and Unai Pascual, ‘Payments for Agrobiodiversity Conservation
Services for Sustained on-Farm Utilization of Plant and Animal Genetic Resources’ (2011) 70 Ecological
Economics 1837, where the authors explained ‘Such loss [of genetic diversity] is of global concern despite the
existence of ex-situ gene banks with growing collections of germplasm. This is because key elements of genetic
resources cannot be captured and stored off-site, including aspects related to their embodiment of ecological
relationships such as gene flow between different populations and species, co-evolutionary adaptation and selection
to predation and disease, and systems of agricultural knowledge and practice associated with genetic diversity’.

248 Chapter 7: Seeds

attached.1003 For instance, in informal seed systems, customary laws and traditions may regulate
access and use.

In informal seed systems, the process of improving varieties relies on human intervention,
farmer knowledge and access to seeds through cultural, traditional or ecological exchange.1004
Almekinders et al described the improvement of varieties in the informal seed system as a
dynamic process involving:

….continuous interaction and adaptation [that] shapes the ‘local genepool’, which is
maintained through the generation of genetic variation by natural mutation, introduction
from wild and weedy relatives, hybridization between cultivars, and the introduction by
farmers of new seeds or other landraces or modern cultivars.1005

In a similar vein, Baniya et al explained how the ‘continuous interaction and adaptation’ of crop
genetic resources, referred to by Almekinders et al above, is a critical part of conserving
agrobiodiversity. They stated:

The informal seed supply system is closely related with conservation of agrobiodiversity
on-farm. In this system, farmers make decisions in the process of planting…that affect the

1003
See generally Michael Halewood, Isabel Lopez Noriega and Selim Louafi, ‘The Global Crop Commons and
Access and Benefit-Sharing Laws: Examining the Limts of International Policy Support for the Collective Pooling
and Management of Plant Genetic Resources’ in Crop Genetic Resources as a Global Commons: Challenges in
International Law and Governance (Routledge, 2012) 1.
1004
These interventions include: open-pollination, hand-pollination, selective breeding via replanting those seeds
with beneficial traits. Ibid. In relation to traditional, cultural or ecological knowledge, see, eg, Guntra A Aistara,
‘Seeds of Kin, Kin of Seeds: The Commodification of Organic Seeds and Social Relations in Costa Rica and Latvia’
(2011) 12 Ethnography 490 where the relationship between farmers in Costa Rica and Latvia with seeds and other
farmers is discussed. For examples, see Managing Agrodiversity the Traditional Way: Lessons from West Africa in
Sustainable Use of Biodiversity and Related Natural Resources (United Nations University Press, 2004)
<http://site.ebrary.com/lib/alltitles/docDetail.action?docID=10074972>; H C Brookfield, Helen Parsons and Muriel
Brookfield, Agrodiversity: Learning from Farmers Across the World (United Nations University Press, 2003). For
instance, in Cuzalapa, Mexico, farmers introduce varieties from surrounding areas through farmer-to-farmer
exchanges at specific times and they often mix plant varieties together to obtain seeds with desirable qualities (eg
taste, resilience, high yields). Farmers select seeds to use based on multiple factors including plant characteristics
and the qualities of the harvested product. See, eg, D Louette and M Smale, ‘Farmers’ Seed Selection Practices and
Traditional Maize Varieties in Cuzalapa, Mexico’ (2000) 113 Euphytica 25. See also, Peter Dorward et al,
‘Improving Participatory Varietal Selection Processes: Participatory Varietal Selection and the Role of Informal Seed
Diffusion Mechanisms for Upland Rice in Ghana’ (2006) 155 Euphytica 315, 319 where the authors outlined the
criteria for seed selection used by different farmers in Ghana. Interestingly, this study illustrated differences between
male and female seed selection practices. For instance, women were perhaps more interested in characteristics such
as taste and ease of cooking/milling than men.
1005
C J M Almekinders, N P Louwaars and G H de Bruijn, ‘Local Seed Systems and Their Importance for an
Improved Seed Supply in Developing Countries’ (1994) 78 Euphytica 207, 209.

Chapter 7: Seeds 249

 genetic diversity of crop population. These processes influence gene flow and change the
genetic constituent of a given crop.1006

Accordingly, Baniya et al and Almekinders et al described how informal seed systems

gradually alter genetic diversity in differing ways depending on the environmental conditions of
the farm and the needs of the farmer. Hence, each reuse or exchange of seeds facilitates unique
agrobiodiversity in a way that more scientific, non-farm based methods cannot replicate. Put
differently, varieties in informal seed systems evolve in ways that respond to the specific
agroecological conditions as opposed to being developed in laboratories external to the natural
variations in agricultural environments. Furthermore, informal seed systems ensure that genetic
materials are continually evolving to suit the changing environmental conditions of a farm,
which is vital for overcoming external shocks, including new pests or weather events.

Another way in which informal seed systems make critical contributions to food security is
by ensuring the accessibility of seeds. In other words, informal seed systems provide seeds at a
low cost (generally at no cost) and the ability to reuse or exchange seeds helps keep commercial
seed prices affordable.1007 Meanwhile, the economic accessibility of seeds is critical for food
insecure, smallholder farmers that lack resources and access to commercially sold seeds.1008

7.2.2.2 Informal seed systems and the commons

The commons refers to resources that are ‘jointly used, managed by groups of varying
sizes and interests’,1009 and so they are not exclusively owned or controlled by any entity

1006
Bimal Baniya, Deepa Singh and Bhuwon Sthapit, ‘Experiences from Nepal’ in Devra I Jarvis et al (eds), Seed
systems and crop genetic diversity on-farm: Proceedings of a workshop, 16 - 20 September 2003, Pucallpa, Peru
(International Plant Genetic Resources Institute, 2005) 31, 33.
1007
Michael Mascarenhas and Lawrence Busch, ‘Seeds of Change: Intellectual Property Rights, Genetically
Modified Soybeans and Seed Saving in the United States’ (2006) 46 Sociologia Ruralis 122, 124.
1008
See, eg, Melinda Smale, Marc J Cohen and Latha Nagarajan, ‘Local Markets, Local Varieties: Rising Food
Prices and Small Farmers’ Access to Seed’ (IFPRI Issue Brief 59, International Food Policy Research Institute and
the Food and Agriculture Organization of the United Nations, February 2009) 3
<http://www.ifpri.org/publication/local-markets-local-varieties> where it is observed that ‘Low-income farmers in
developing countries rely heavily on informal channels for access to seed: on-farm seed saving, farmer-to-farmer
exchanges, and unregulated sales’.
1009
Charlotte Hess and Elinor Ostrom, ‘Introduction: An Overview of the Knowledge Commons’ in Charlotte Hess
and Elinor Ostrom (eds), Understanding Knowledge as a Commons: From Theory to Practice (The MIT Press,
2011) 5. PGRFA is somewhere between a natural resource and a human invention and can be improved and
accessed by everyone. As such, the PGRFA has similarities with knowledge, and the literature on knowledge as part
of the commons is helpful for understanding a commons approach to PGRFA. Note though that PGRFA has
traditionally been part of the commons, and so examining PGRFA as a common pool resource is more of a return to
previous approaches rather than a new approach. The connection between PGRFA and ‘new commons’ literature

250 Chapter 7: Seeds

including states, individuals or corporations. Common pools of crop genetic resources may be in
the form of informal seed systems, that is, small, community-based, exchange networks like
those described by Almekinders et al above. Alternatively, common pools of crop genetic
resources can take a more formal approach to pooling, conserving and exchanging.1010 Organised
common pools of crop genetic resources may be physical or online seed banks in which entities
can contribute varieties to the pool and can apply for and obtain access to samples of genetic
resources provided by others.1011

For centuries, world food security has relied on a common, evolving pool of crop genetic
resources. States depend on foreign crop genetic resources for improving varieties, meeting
nutritional needs, and responding to new diseases or pests. In fact, the estimated, average level of
interdependency between countries for crop genetic material is around 70 per cent, and no region
relies soley on crops that originated in their own territory for national food security.1012 The
extent of the interdependence between countries for crop genetic materials and related variety

has been explored by Michael Halewood, ‘What Kind of Goods Are Plant Genetic Resources for Food and
Agriculture? Towards the Identification and Development of a New Global Commons’ (2013) 7 International
Journal of the Commons 278.
1010
The most well-known and long-standing international seed bank is managed by the Consultative Group for
International Agricultural Research (CGIAR). This organisation manages and coordinates a network of 15 research
institutions that have seed banks and research the genetic improvement of crops. It holds the view that PGRFA is
part of the commons and should be freely accessible and non-exclusive. Sherman observed that the CGIAR has
altered its practices in three main ways, as IP rights have expanded over PGRFA. Firstly, Sherman noted that third-
party IP rights over laboratory equipment, PGRFA and other research tools have become more difficult for CGIAR
to access. Secondly, the CGIAR has had to alter how it pools and provides access to seeds to address the threats of
IP claims being made over the PGRFA it held and to accommodate for the new multilateral access and benefit
sharing system, which are discussed in this chapter. Thirdly, CGIAR has increasingly been interacting with private
sector actors, which tends to create pressure on the CGIAR to establish the rights and duties related to a particular
research project. See, Brad Sherman, ‘Reconceptualising Intellectual Property to Promote Food Security’ in Charles
Lawson and Jay Sanderson (eds), The Intellectual Property and Food Project: From Rewarding Innovation and
Creation to Feeding the World (Ashgate Publishing, Ltd., 2013) 23.
1011
For instance, the AVRDC Genebank conserves, stores, improves and shares vegetable germplasm to anyone
worldwide using a standardized contract. Advanced research centres, corporations and universities in developed
countries and national research centres in developing countries have to pay handling fees otherwise access is free.
See, How to Order Seed (2016) AVRDC - The World Vegetable Center <http://avrdc.org/seed/seeds/>.
1012
Jose T Esquinas-Alcazar, Christine Frison and Francisco Lopez, ‘Introduction - A Treaty to Fight Hunger - Past
Negotiations, Present Situation and Future Challenges’ in Christine Frison, Franciso Lopez and Jose T Esquinas-
Alcazar (eds), Plant genetic resources and food security: Stakeholder perspectives on the international treaty on
plant genetic resources for food and agriculture (The Food and Agriculture Organization of the United Nations,
Biodiversity International, Earthscant, 2001) 1, 4 <http://www.bioversityinternational.org/e-
library/publications/detail/plant-genetic-resources-and-food-security/> citing Ximena Flores Palacios, ‘Contribution
to the Estimation of Countries’ Interdependence in the Area of Plant Genetic Resources’ (Background Study Paper
No. 7 REV.1, Food and Agriculture Organization of the United Nations)
<ftp://ftp.fao.org/docrep/fao/meeting/015/j0747e.pdf>.

Chapter 7: Seeds 251

improvements highlights the importance of continuing and facilitating access to plant genetic
resources from other world regions.

7.2.2.3 Formal seed systems

The second way in which a farmer can access seeds is through formal, commercial seed
systems. These kinds of seed systems take place at international and national levels. Formal seed
systems are organised seed chains involving privately funded research, gene banks, plant
breeders/geneticists, specialised seed producers and marketing and distribution control.1013 To be
part of the formal seed system, seeds generally need prior state authorisation by a government’s
seed quality control institution.1014 These institutions tend to use a ‘variety-release system’
whereby only approved varieties are available to farmers.1015 The figure below, by Almekinders
and de Boef, illustrates the formal and informal seed systems.1016

Figure 7.1 Informal (Local) and Formal Seed Systems by Almekinders and de Boef (2000)

1013
For a useful explanation of the two types, including the commercial seed sector, see Niels Louwaars, Seeds of
Confusion: The Impact of Policies on Seed Systems (PhD Dissertation, Wageningen University, 2007) 34–35.
1014
Tony J G van Gastel, Bill R Gregg and E A Asiedu, ‘Seed Quality Control in Developing Countries’ (2002) 4
Journal of New Seeds 117, 120.
1015
Louwaars, a leading scholar in this area, analysed forty national seed certification and quality control
regulations. He found that ‘Most regulatory frameworks studied put severe restrictions on initiatives to support
farmers’ seed production and to develop small seed enterprises’. Louwaars, above n 1008, 52. Formal seed systems
involve an assessment stage whereby a public institution assesses the quality of a variety and registers or certifies
them as approved if they meet the particular standards set out in domestic legislation. Gastel, Gregg and Asiedu
explained that ‘Most countries, even those with developing agro-economics, have a Seed Law. Seed Law structure,
requirements, staffing and implementation vary widely, in response to the role of the government in the seed
industry.’ See, Gastel, Gregg and Asiedu, above n 1009, 120.
1016
Conny Almekinders and Walter de Boef, ‘Institutional Perspectives on Participatory Approaches to Use and
Conservation of Agrobiodiversity’ in Esbern Friis-Hansen and Bhuwon Ratna Sthapit (eds), Participatory
Approaches to the Conservation and Use of Plant Genetic Resources (International Plant Genetic Resources
Institute, 2000) 22, 25. This figure was originally adapted from de Walter Boef, Jaap Hardon and Niels Louwaars,
‘Inegrated Organisation of Institutional Crop Development as a System to Maintain and Stimulate the Utilisation of
Agro-Biodversity at the Farm Level’ (1997); C J M Almekinders and N P Louwaars, Farmers’ Seed Production:
New Approaches and Practices (Intermediate Technology Publications, 1999).

252 Chapter 7: Seeds

7.2.2.4 Formal Seed Systems and intellectual property rights
A key facet of formal seed markets is the exchange of varieties that are subject to
intellectual property rights (IPRs), where previously crop genetic resources were considered the
common heritage of humankind.1017 Breakthroughs in agricultural biotechnology,1018 combined
with lobbying by pharmaceutical and pesticide corporations in the 1980s, led to broader IPRs
over plant varieties.1019 Specifically, the technological breakthroughs that allowed for genetic
engineering made it easier for plant breeders to meet the standards required for IPRs (eg novelty)
and made it possible for them to determine whether a protected variety had been replicated.1020

As technologies developed and IPRs were expanded to encompass plant genetic materials,
private investment in plant breeding increased, while public breeding programs declined.1021
These trends generally started in the US and were exported to other countries as part of the
growing economic integration between countries. Many governments now grant IPRs over crop
genetic resources according to their domestic laws.1022

In terms of the policy rationale, IPRs are designed to act as an incentive for private
investment into research and development. The assumption is if seed companies were not able to
control the use and sale of a new variety, then they would not invest significant financial

1017
Companies also use ‘Seed and Technology Use Agreements’. Farmers are required to sign this agreement before
purchasing the modified variety. By signing the agreement, the farmers agree to pay a set fee for the access to the
variety and agree to restrictions on their use of the purchased seeds. Other forms of restrictions they may place on a
variety can stem from genetic use restriction technologies and trade secrets.
1018
In the Convention on Biological Diversity at art 2, ‘agricultural biotechnology’ is defined as ‘…any
technological application that uses biological systems, living organisms, or derivatives thereof, to make or modify
products for specific uses’.
1019
For more analysis regarding this, see, Lakshman Yapa, ‘What Are Improved Seeds? An Epistemology of the
Green Revolution’ (1993) 69 Economic Geography 254.
1020
Brian D Wright, ‘Public Germplasm Development at a Crossroads: Biotechnology and Intellectual Property’
(1998) 52 California Agriculture 8, 9. See also, Diamond v. Chakrabarty, 447 US 303 (1980) where the US
Supreme Court found that a genetically engineered bacteria could be subject to a patent because ‘While laws of
nature, physical phenomena and abstract ideas are not patentable, respondent’s claims is not to a hitherto unknown
natural phenomenon, but to a nonnaturally occurring manufacturer or composition of matter – a product of human
ingenuity’,
1021
Pray and Umali-Deininger, above n 740.
1022
See, eg, Mercedes Campi and Alessandro Nuvolari, ‘Intellectual Property Protection in Plant Varieties: A
Worldwide Index (1961–2011)’ (2015) 44 Research Policy 951.

Chapter 7: Seeds 253

resources into the development of new varieties and technologies.1023 To put it differently, a seed
company will invest in the development of a new variety where they know that their competitors
will be prohibited from reverse-engineering their improved varieties. The ability to restrict
competition and therefore increase the price of the variety improves the chance that the seed
company will receive a return on their investment into the research and development. At the
same time, the public is expected to benefit from the creation of IPRs because granting such
exclusive rights is thought to incentivise research and development in agriculture. For instance,
as a result of private investment incentivised by IPRs, farmers now have access to new varieties
and technologies at a cost that could contribute to food security and improve their profitability.

The rights granted under intellectual property (IP) law can attach to the seed, plant, plant
cell or DNA sequence. IPRs in seeds tend to take one of two main forms. Firstly, a government
may use plant-variety protection laws to assign special rights to plant breeders (termed plant
breeders’ rights).1024 Secondly, a government can grant IPRs in the form of patents, which are
essentially a government license conferring rights for a set period. In both plant-variety
protection laws and patents, the rights granted to entities tend to be conditional on the
distinctiveness of the variety they have developed. Furthermore, both approaches typically
confer the right to exclude others from using or selling the plant variety for a period of time
(generally 20 years in the case of patents).1025

Although they function in similar ways, patents tend to grant fewer exemptions and
flexibilities than plant-variety protection laws. For instance, patents, unlike plant breeders’
rights, generally prevent others from re-using or improving a variety. Furthermore, patents are
commonly available for the variety, the processes used to develop the variety, and the genetic

1023
The largest seed TNC, Monsanto, explained that they patent many of the seed varieties they develop because:
‘Patents are necessary to ensure that we are paid for our products and for all the investments we put into developing
these products…Without the protection of patents there would be little incentive for privately-owned companies to
pursue and re-invest in innovation…Monsanto invests more than $2.6 million per day in research and development
that ultimately benefits farmers and consumers’. See, Why Does Monsanto Sue Farmers Who Save Seeds? (2015)
Monsanto <http://www.monsanto.com/newsviews/pages/why-does-monsanto-sue-farmers-who-save-seeds.aspx>.
1024
Plant breeders in formal seed systems are generally research institutions or seed companies but they can also be
farmers.
1025
Description of Patent Types (3 October 2013) U.S. Patent and Trademark Office
<http://www.uspto.gov/web/offices/ac/ido/oeip/taf/patdesc.htm>.

254 Chapter 7: Seeds

material used in the development of a new variety.1026 Whereas plant breeder rights tend to apply
only to the variety, and thus information regarding the genetic material and the processes behind
creating the variety can be open to the public.1027

7.2.2.5 Intellectual Property Rights: Problems and Benefits for a Rights-Based Approach to
Food Security
As touched upon, innovations in biotechnologies have improved the human ability to alter
crop genetic resources. Developing new varieties using agricultural biotechnologies, or other
technical, scientific processes, is widely promoted as a powerful way to improve food security.
Hence, the IPRs created and granted by state organs arguably incentivise these innovations in
plant breeding that contribute to food security outcomes.

Currently, genetically modified (GM) seeds are the major outcome of breakthroughs in
agricultural biotechnology. The development and commercial sale of GM seeds has been highly
controversial; but these seeds are now widely used, especially in the US, Brazil, Argentina, India
and Canada.1028 Despite their common use, it is important to realise that GM seeds are not the
only seeds that can be subject to IPRs. Most commercially developed varieties can be protected
depending on domestic IP laws.1029 However, GM seeds will form the focus of the discussion
here because they provide a useful case study for examining the potential benefits and problems
for food security of encouraging private investment in plant genetics through IPRs.

1026
William Lesser, ‘Plant Breeders’ Rights: An Introduction’ in A Krattiger, R T Mahoney and L Nelsen (eds),
Intellectual Property Management in Health and Agricultural Innovation: A Handbook of Best Practices (MIHR,
2007) <http://www.iphandbook.org/handbook/ch04/p05/>.
1027
Subject to, for instance, other sources of IPRs such as trade secrets. For more information see, G Moschini and
O Yerokhin, ‘The Economic Incentive to Innovate in Plants: Patents and Plant Breeders’ Rights.’ in J P Kesan (ed),
Agricultural biotechnology and intellectual property: seeds of change (CABI, 2007) 190
<http://www.cabi.org/cabebooks/ebook/20073163491>.
1028
The genetic modification of seed involves inserting desirable genes into seeds that do not naturally occur in that
species. Note, there are many other ways in which scientific techniques can be used to alter the genetics of plants,
animals and microorganisms. For instance, synthetic biology speeds up the process of genetic engineering as it
inserts multiple genes into the nuclear genomes of seed, and it is likely to be developed for agricultural purposes in
the future. See, eg, Josie Garthwait, ‘Beyond GMOs: The Rise of Synthetic Biology’ The Atlantic, 25 September
2014 <http://www.theatlantic.com/technology/archive/2014/09/beyond-gmos-the-rise-of-synthetic-
biology/380770/>; Steve Suppan, From GMO to SMO: How Synthetic Biology Evades Regulation (7 August 2014)
Institute for Agriculture and Trade Policy <http://www.iatp.org/documents/from-gmo-to-smo-how-synthetic-
biology-evades-regulation>. See also, Where Are Most GM Crops Grown? (2011) EuropaBio Trade Association
<http://www.europabio.org/where-are-most-gm-crops-grown>.
1029
Why Do Seeds Have Patents? Are GM Seeds the Only Patented Seeds? | Europabio (2016) EuropaBio Trade
Association <http://www.europabio.org/why-do-seeds-have-patents-are-gm-seeds-only-patented-seeds>.

Chapter 7: Seeds 255

 GM varieties may contain higher levels of particular micronutrients and can be resistant to
pests, diseases and weather events. Therefore, the use of GM varieties could have positive
environmental impacts on farms by reducing the use of pesticides and by enabling farmers to
grow more on less land as less yield is lost to pests.1030 Because of these attributes, GM varieties
can improve yields (food availability), enhance the nutritional qualities of food (food utilisation),
and increase farm profits due to higher yields and reduced pesticides cost (food access). The
classic example is ‘golden rice’, which is a genetically engineered rice variety that has high
levels of vitamin A to address a common vitamin deficiency.1031

Commonly, proponents position GM varieties as part of the solution to food insecurity

largely because such varieties increase yields and so can help produce enough food to feed a
growing population. These claims are consistent with the fact that the vast majority of GM seeds
sold are designed to increase yields through exhibiting pesticide resistant traits.1032 Advocates
rely on estimates that food supplies need to double from the year 2000 by the year 2030 or
2050.1033 Robert Fraley, the Vice President of Monsanto Corporation,1034 explained ‘How do we
double the amount of food between now and 2050 is really where the conversation should be

1030
See, eg, Graham Brookes and Peter Barfoot, ‘GM Crops: Global Socio-Economic and Environmental Impacts
1996-2012’ (PG Economics Ltd, May 2014) <http://www.pgeconomics.co.uk/page/36/-gm-crop-use-continues-to-
benefit-the-environment-and-farmers>. Note that the authors also submitted the findings of their report in peer-
reviewed journal articles. See, Brookes and Barfoot, ‘Key Environmental Impacts of Global Genetically Modified
(GM) Crop Use 1996–2011’, above n 185; Graham Brookes and Peter Barfoot, ‘Economic Impact of GM Crops’
(2014) 5 GM Crops & Food 65.
1031
The Golden Rice Project (2015) Gold Rice Humanitarian Board <http://www.goldenrice.org/index.php>. For a
critique of the claims surrounding golden rice, see eg, Grains of Delusion: Golden Rice Seen from the Ground (25
February 2001) GRAIN <https://www.grain.org/article/entries/10-grains-of-delusion-golden-rice-seen-from-the-
ground>.
1032
Clive James, ‘Global Status of Commercialized Biotechn/GM Crops: 2007’ (Brief 37, International Service of
the Acquisition of Agri-Biotech Applications, 2007) xi
<https://www.isaaa.org/resources/publications/briefs/37/download/isaaa-brief-37-2007.pdf> where it is explained
that ‘From the genesis of commercialization in 1996 to 2007, herbicide tolerance has consistently been the dominant
trait. In 2007, herbicide tolerance, deployed in soybean, maize, canola, cotton and alfalfa occupied 63% or 72.2
million hectares of the global biotech 114.3 million hectares. For the first time in 2007, the stacked double and triple
traits occupied a larger area (21.8 million hectares, or 19% of global biotech crop area) than insect resistant varieties
(20.3 million hectares) at 18%. The stacked trait products were by far the fastest growing trait group between 2006
and 2007 at 66% growth, compared with 7% for insect resistance and 3% for herbicide tolerance’.
1033
The reason the figures alter from 2030 to 2050 depending on the source is because the estimation underpinning
the need to double food production has an unclear basis. For examples of seed companies using these figures, see eg,
Why Does Agriculture Need to Be Improved? (2014) Monsanto
<http://www.monsanto.com/global/au/improvingagriculture/pages/why-does-agriculture-need-to-be-
improved.aspx>; Our Point of View on Food Security (2015) DuPont <http://foodsecurity.dupont.com/about-us/our-
point-of-view-on-food-security/>; Seeds, above n 100.
1034
One of the world’s largest seeds and pesticides company in the World.

256 Chapter 7: Seeds

focused’.1035 From one perspective then, expanding IPRs over plant varieties developed using
agricultural biotechnologies is consistent with a RBA to FS. IPRs incentivise the continued
development of these varieties and technologies that increase food production, thereby ensuring
food security in spite of the growing population.

In opposition, other stakeholders claim that GM varieties can only ever be a small part of
addressing food security; hence, the contribution of intellectual property rights to a RBA to FS is
arguably limited in the context of genetic resources. The rest of this section will explore the role
of IPRs in promoting world food security in the context of agricultural biotechnologies and GM
varieties. In particular, commentators and governments have cast doubt on (a) the notion that
food production ‘needs’ to double by 2030 or 2050 and so agricultural biotechnology needs to be
incentivised and developed and (b) the value of increasing food production as a policy goal.1036

The FAO has projected that food production levels will need to double by the year 2030 or,
according to other projections, by the year 2050 to meet the needs of the rising population.1037
However, these FAO projections do not refer to yields, but to the total production required to
meet demand if no other policy interventions are taken to, for instance, reduce food waste,
improve storage facilities in developing countries or encourage less resource-intensive diets.1038
In relation to these estimates, the World Bank observed that ‘Projections of global future food
supply and demand are always subject to wide margins of error’.1039 Subsequently, the
projections regarding food production should not be targets nor are they intended by policy-
makers to be treated as such. Rather, they are estimates that necessarily contain a number of
assumptions, and which are disseminated to loosely feed into regulatory responses.

The argument that IPRs over crop genetics need to be expanded or maintained to
incentivise yield-improving technologies for food security relies on a narrow perspective of the

1035
John Hockenberry, Interview with Dr. Robert Fraley (Radio Interview, 24 September 2014)
<http://www.thetakeaway.org/story/transcript-monsanto-exec-takes-gmo-debate/>.
1036
See, eg, House of Commons, Environment, Food and Rural Affairs Committee, ‘Securing Food Supplies up to
2050: the challenges faced by the UK’, 4th Report of Session 2008-2009, vol 1 (21 July 2009)
<http://www.publications.parliament.uk/pa/cm200809/cmselect/cmenvfru/213/213i.pdf>.
1037
‘How to Feed the World in 2050’, above n 181.
1038
A critical piece of work exploring the use of this statistic and what it actually represents comes from Tomlinson,
above n 182.
1039
World Development Report 2008: Agriculture for Development, above n 804, 182.

Chapter 7: Seeds 257

concept.1040 For instance, GM varieties cannot address the distributional inequalities that are the
leading cause of food insecurity. These distributional inequities are the reason why, even though
there is currently enough food being produced to feed everyone, hundreds of millions of people
are still malnourished.1041

In fact, the FAO projected that ‘Agricultural production could probably meet expected
demand over the period to 2030 even without major advances in modern biotechnology’.1042 In
other words, world agricultural production levels are expected to be able to meet the needs of a
growing population in 2030 even if no other policy interventions are taken and even without the
use of agricultural biotechnology. As explained in Chapter 3, it is in the rural areas of developing
countries where the under-production of food is most closely associated with food insecurity.
Accordingly, the main way in which GM seeds or other applications of biotechnology could
progress food security is by being accessible to poor communities that are dependent on
agriculture for income and food.

It is unfortunate then that GM seeds are currently largely only accessible to wealthy,
industrial farmers. As observed in the report of the International Assessment of Agricultural
Knowledge, Science and Technology:

There have been positive farm level economic benefits from GMOs for large-scale
producers, but less evidence of positive impact for small producers in developing
countries. The adoption of commercially available GM commodity crops (over 90% of
global area planted) has mostly occurred in large industrial, chemical intensive
agricultural systems in North and South America (95.2% of production).1043

The use of GM has been concentrated to developed countries and large-scale producers due
to the costs involved in acquiring GM seeds.1044

1040
See Chapter 1, section 1.5.1 for the definition of food security and a summary of how the concept has evolved.
1041
Markovic and Natoli, above n 994.
1042
‘World Agriculture: Towards 2015/2030: Summary Report’ (Food and Agricultural Organization of the United
Nations, 2002) 5 <http://www.fao.org/docrep/004/y3557e/y3557e00.htm>.
1043
‘Agriculture at a Crossroads’, above n 232, 195.
1044
For instance, in the US, where most of the seed companies are based, seed prices have increased more than
yields since mid-2000s. See, Diana L Moss, ‘Competition, Intellectual Property Rights, and Transgenic Seed’ (2013)
58 South Dakota Law Review 543, 552.

258 Chapter 7: Seeds

 Given the costs involved in acquiring GM seeds, small-scale and even mid-scale farmers in
developed and developing countries have limited access. The Committee on Economic, Social
and Cultural Rights, in response to a periodic report by India about its implementation of the
ICESCR, was ‘deeply concerned’ that:

[t]he extreme poverty among small-hold farmers caused by the lack of land, access to
credit and inadequate rural infrastructures, has been exacerbated by the introduction of
genetically modified seeds by multinational corporations and the ensuing escalation of
prices of seeds, fertilisers and pesticides...1045

Subsequently, incentivising the application of biotechnology by expanding IPRs is not an

approach that is consistent with a RBA to FS. For instance, criterion 2 of a RBA to FS requires
special treatment, support and protections for low-income, agricultural based populations and
small-scale farmers in developing countries.

One reason that GM seeds are costly is because of the corporate concentration in the
sector.1046 Currently, ten companies, all based in developed countries, particularly the US and the
EU, control more than three quarters of the commercial seed market.1047 Of these ten, three
companies, Monsanto (US), DuPoint (US) and Syngenta (Swiss), control over half of the world
market for seeds.1048 This lack of competition in the agricultural input sector leads to higher
production costs for farmers that may increase the cost of food.1049 IPRs aggravate the

1045
Committee on Economic, Social and Cultural Rights,‘Consideration of Reports Submitted by States Parties
under Article 16 and 17 of the Covenant: Concluding Observations of the Committee on Economic, Social and
Cultural Rights- INDIA’, 40th sess, UN Doc. E/C.12/IND/CO/5 (16 May 2008) 5, [29].
1046
Other reasons that prices have increased include the costs involved in developing GM seeds and that technology
has now developed to allow GM seeds to contain numerous traits.
1047
The ETC Group is the main publisher of studies in regards to seed concentration, and has been for some 25
years. It appears to be an independent NGO based in Canada with transparent information regarding their financing
available online (http://www.etcgroup.org/funding) largely funded by philanthropy and other NGOs like Oxfam.
Scholarly works and UN documents have referred to ETC reports, including some referenced here. The author is
unaware of any other reports that contain this information. For the statistics, see ‘Putting the Cartel before the Horse:
Farm, Seeds, Soil, Peasants - Who Will Control Agricultural Inputs in 2013’ (111, ETC Group, 4 September 2013)
40, 6. For an earlier but more in-depth analysis see, ‘Corporate Power and the Final Frontier in the Commodification
of Life’ (100, ETC Group, November 2008)
<http://www.etcgroup.org/sites/www.etcgroup.org/files/publication/707/01/etc_won_report_final_color.pdf>.
1048
‘Putting the Cartel before the Horse: Farm, Seeds, Soil, Peasants- Who Will Control Agricultural Inputs in
2013’, above n 1042, 6. Note that consolidation of the seed industry is further illustrated through ‘non-merger
mergers’, whereby the seed TNCs enter into partnerships with other seed TNCs to share patented traits under cross-
licensing agreements or jointly develop such traits under joint venture agreements. See, Howard, above n 125.
1049
See, eg, David S Bullock and Elisavet I Nitsi, ‘Roundup Ready Soybean Technology and Farm Production Costs

Chapter 7: Seeds 259

corporation concentration in seed companies, as they effectively grant monopoly control over a
variety rather than fostering competition.1050

In fact, farmers do not necessarily profit from the use of GM seeds. Much depends on the
value of the crops not lost to pests,1051 and the reduction of other production costs that can result
from using GM seeds (eg pesticides and insurance).1052 As it is context-dependent, studies have
had mixed results.1053 Accordingly, the profitability of GM adoption for individual farmers is
possible, but far from guaranteed.

7.2.2.6 Informal Seed Systems and Intellectual Property Rights

It is commonly argued that farmers can choose to buy seeds that have IPRs attached or can
choose to buy or exchange seeds without the same restrictions. Yet, governments’ seed quality
control institutions determine the varieties that can be released on the market. Furthermore, the
state, as well as NGOs, decides what varieties it will provide for free or at a subsidised price.1054
Because of the reductions in public sector investment, there is now a trend for governments to
focus on the quality of seeds, while the private sector concentrates on creating seeds for those
with purchasing power.1055 In this context, informal seed sharing practices are at best not
facilitated and at worst illegal and severely limited due to IPRs.

The ‘technology treadmill’ is another reason why farmers struggle to opt-out of the
commercial seed system even where prices are exorbitant.1056 This theory refers to a situation
where a farmer purchases (or borrows money to purchase) a new technology. These technologies

Measuring the Incentive to Adopt Genetically Modified Seeds’ (2001) 44 American Behavioral Scientist 1283 where
the authors found that oligopolistic market for GM soybeans has resulted in price premiums that are too high for
most farms studied even if adopting the GM seeds reduces herbicide costs.
1050
Carlos M Correa, Intellectual Property Rights, the WTO and Developing Countries: The TRIPS Agreement and
Policy Options (Zed Books, 2000) 36.
1051
Where GM seeds are resistant to pests, they can reduce the amount of yields lost to pests. The monetary value of
the crops not lost to pests is relevant to determining the economic viability of GM seeds and needs to be compared
the yield losses on farms using conventional seeds.
1052
Jorge Fernandez-Cornejo, Seth James Wechsler and Michael Livingston, Adoption of Genetically Engineered
Crops by US Farmers Has Increased Steadily for Over 15 Years (4 March 2014) <http://www.ers.usda.gov/amber-
waves/2014-march/adoption-of-genetically-engineered-crops-by-us-farmers-has-increased-steadily-for-over-15-
years.aspx#.VrAcQLJ95hE>.
1053
‘Economic Impacts of Genetically Modified Crops on the Agri-Food Sector: A Synthesis’ (Working Document
Rev.2, The European Commission: Directorate-General for Agriculture) para 3.3
<http://ec.europa.eu/agriculture/publi/gmo/fullrep/ch3.htm>.
1054
Louwaars, above n 1008.
1055
Ibid.
1056
Coined by Cochrane in Willard Wesley Cochrane, Farm Prices, Myth and Reality. (Praeger, 1974) 94–96.

260 Chapter 7: Seeds

may lower production costs and increase yields, so the farmer adopting the technology may
experience increased profits in the short-term. As more farmers adopt the technology, and their
yields increase, the supply of that crop increases and the price for that crop drops. Due to the
lower commodity prices and the connected increased yields of their competitors, farmers that
were non-adopters are forced to take up the new technologies in order to remain in the
business.1057 Although farmers can choose to participate in both formal and informal seed
systems, and often do, regulation in the formal system can start to infringe on the informal
exchange of seeds and farmer innovation required for agrobiodiversity.

7.2.2.7 Access and Benefit Sharing as a Response to the Expansion of Intellectual Property
Rights
While developed countries have successfully pursued a worldwide expansion of IPRs in
relation to crop genetic resources, developing countries have had to deal with bioprospecting
issues created by the granting of exclusive rights over crop genetic resources.1058 Bioprospecting
occurs when an entity (the user) travels to another country (the provider) and takes crop genetic
resources and related traditional knowledge to study and potentially extract particular genes to
create new varieties.1059 Biopiracy is a term used by activists to critique trends in
bioprospecting.1060

Commonly, private entities from developed countries have the resources and institutional
frameworks to develop and patent new varieties using agricultural biotechnologies.1061
Meanwhile, the same capacity generally does not exist in developing countries, even though
these countries have most of the rich biodiverse habitats (termed ‘centres of origin’ for crop
genetic resources).1062 These factors have led to distributional injustices, as actors from

1057
For a similar but different take on the concept, see Richard A Levins and Willard W Cochrane, ‘The Treadmill
Revisited’ (1996) 72 Land Economics 550.
1058
Note that other biodiverse countries, in particular, Australia, have experienced similar issues.
1059
See, Doris Schroeder and Thomas Pogge, ‘Justice and the Convention on Biological Diversity’ (2009) 23 Ethics
& International Affairs 267, 16–169 where the authors explained the conflict interpretations of common heritage in
relation to seeds and PGRs.
1060
Daniel Robinson, Confronting Biopiracy: Challenges, Cases and International Debates (Taylor and Francis,
2010) 14; Vandana Shiva, ‘Bioprospecting as Sophisticated Biopiracy’ (2007) 32 Signs 307; Vandana Shiva,
Biopiracy: The Plunder of Nature and Knowledge (South End Press, 1997).
1061
Shawn N Sullivan, ‘Plant Genetic Resources and the Law’ (2004) 135 Plant Physiology 10.
1062
Centres of origin are the term used to describe a particularly diverse area within a country that was the source of
many cultivate crop varieties. See Kim E Hummer, ‘Vavilovian Centers of Diversity:Implications and Impacts’.

Chapter 7: Seeds 261

developed countries gain economic benefits from the use of genetic resources sourced in
developing countries; while the communities that have maintained and improved the genetic
resources for generations receive nothing.1063 Subsequently, biopiracy can be viewed as a
violation of various human rights including, in particular, the rights of indigenous peoples to
maintain and control their seeds and other plant genetic materials.1064 For a RBA to FS, the
protections of these rights, and the potential for such schemes to facilitate food security, must be
balanced with the need to facilitate open access to crop genetic resources for the facilitation of
agrobiodiversity.

As a way to reward and acknowledge the contributions of communities to plant genetic

material, access and benefit sharing (ABS) schemes have been created to bilaterally or
multilaterally exchange plant genetic resources and related traditional knowledge for monetary
and non-monetary benefits. The reasons for developing ABS systems are twofold.1065 Firstly, an
ABS framework could help address biopiracy by requiring the equitable and fair sharing of
resources. Secondly, the benefit-sharing aspect of ABS may incentivise practices that conserve
agrobiodiversity, progress food security,1066 and maintain traditional knowledge.1067

1063
In fact, there are many examples of biopiracy including instances where a variety remained the same as when it
was collected but an entity was still able to successfully patent it. See, eg, Gillian Rattray, ‘The Enola Bean Patent
Controversy: Biopiracy, Novelty and Fish-And-Chips’ (2002) 1 Duke Law & Technology Review 1; Amanda
Landon, ‘Bioprospecting and Biopiracy in Latin America: The Case of Maca in Perú’ (2007) 22 Nebraska
Anthropologist 63; Julie Cook Lucas et al, ‘Sharing Traditional Knowledge: Who Benefits? Cases from India,
Nigeria, Mexico and South Africa’ in Doris Schroeder and Julie Cook Lucas (eds), Benefit Sharing (Springer
Netherlands, 2013) 65 <http://link.springer.com/chapter/10.1007/978-94-007-6205-3_4>; Michael Woods, ‘Food for
Thought: The Biopiracy of Jasmine and Basmati Rice’ (2002) 13 Albany Law Journal of Science & Technology 123.
1064
For instance, Article 7 of the ICESCR holds that everyone has a right to fair wages and equal remuneration.
Given that local communities have conserved and improved varieties over time, where a third-party seeks to benefit
from a variety and places exclusive rights over derived materials, it follows that the relevant community should
receive fair remuneration. In the case of indigenous communities, UNDRIP provides that ‘Indigenous peoples have
the right to maintain, control, protect and develop…manifestations of their sciences, technologies and cultures
including human and genetic resources [and] seeds’. See, UNDRIP art 31(1).
1065
Bram De Jonge and Niels Louwaars, ‘The Diversity of Principles Underlying the Concept of Benefit Sharing’ in
Evanson C Kamau and Gerd Winter (eds), Genetic Resources, Traditional Knowledge and the Law: Solutions for
Access and Benefit Sharing (Earthscan, 2009) 37.
1066
ABS systems could progress food security by incentivising practices that facilitate agrobiodiversity, which can,
as discussed at the start of this chapter, improve the resilience of farms and aid dietary diversity.
1067
CBD creates a framework for the creation and implementation of ABS systems with the purpose being to
encourage the conserving of biodiversity and its sustainable use by fairly and equitably rewarding small-scale,
traditional farmers for their contributions to biodiversity preservation. Drawing some clear links with agroecology
and a RBA to FS, Article 8(j) of the CBD provides that states must: ‘… respect, preserve and maintain knowledge,
innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the
conservation and sustainable use of biological diversity and promote their wider application with the approval and

262 Chapter 7: Seeds

7.2.3 Plant Genetic Resources for Food and Agriculture and Rights-Based Approaches to
Food Security
According to human rights law, IPRs should promote the progressive realisation of human
rights by incentivising research and development.1068 In order to achieve this, IP regulations must
strike a balance between the need for public access and the need for incentives to further research
and development. For agriculture, this balance relates to the flexibilities in IP laws and the
preservation of common pools of crop genetic resources.

To be consistent with a RBA to FS, IPRs need to have flexibilities and limits built into
their international regulatory instruments and the domestic regulations that follow.1069
Flexibilities are required to protect access to seeds at fair prices. Access to seeds on equitable
terms is required under the right to food, which encompasses access to food producing resources
were required for food security, and the human right to enjoy the benefits of scientific
progress.1070 Accordingly, flexibilities to ensure access to seeds on equitable terms is required
under criterion 1 of a RBA to FS, which requires that instruments be compatible with human
rights.

Additionally, IP laws need flexibilities and safeguards that facilitate informal seed systems
and other common pools of crop genetic resources to support agrobiodiversity, as required by
criterion 4 of a RBA to FS. Such flexibilities could be in the form of exemptions and shortened

involvement of the holders of such knowledge, innovations and practices…’ In the context of agriculture, this
provision requires state parties to protect and facilitate agrobiodiversity connected to informal seed systems and
traditional, ecological farming practices.
1068
Committee on Economic, Social and Cultural Rights, General Comment No. 17: The Right of Everyone to
Benefit from the Protection of the Moral and Material Interests Resulting from any Scientific, Literary or Artistic
Production of Which He or She is the Author (Art. 15, Para. 1 (c) of the Covenant), UN Doc E/C.12/GC/17 (12
January 2006) paras [1]-[3] where the committee discusses the differences between IPRs and human rights and why
human rights take precedent of IPRs.
1069
Note that, according to human rights law, where a creator of a scientific product is human and not a corporate
entity, they have special rights to safeguard and benefit from their work. The Committee on Economic Social and
Cultural Rights, ibid [2], explain this point as follows ‘Whereas the human right to benefit from the protection of the
moral and material interests resulting from one’s scientific, literary and artistic productions safeguards the personal
link between authors and their creations and between peoples, communities, or other groups and their collective
cultural heritage, as well as their basic material interests which are necessary to enable authors to enjoy an adequate
standard of living, intellectual property regimes primarily protect business and corporate interests and investments’.
1070
ICESCR art 15.

Chapter 7: Seeds 263

durations of exclusive rights.1071 Another reason for safeguard informal seed systems is the state
duty to respect, protect and facilitate the human right to a cultural life.1072 Seed sharing is closely
connected with traditional or indigenous cultures, and as such protecting and enabling informal
seed systems is required for a RBA to FS.

Based on criterion 1 and 4 of a RBA to FS, activities that should be exempt from the
operation of IPRs include the ability to experiment, reuse and exchange (but not sell for profits)
crop genetic resources.1073 Exceptions for experimental, reuse and exchange purposes maintain
access to seeds on reasonable terms and increase the potential for future evolutions in crop
genetic resources. Based on the need for flexibility in relation to IPRs and crop genetic
resources, states and international institutions should favour plant-variety protection laws over
patents because of the flexibility that can be built-in to such regimes.

As discussed, agrobiodiversity, informal seed systems and common pools of crop genetic
resources are interconnected and critical to a RBA to FS. Yet, the granting of exclusive rights
over crop genetic materials do not facilitate or necessarily protect informal seed systems and
common pools. To maintain and improve the agrobiodiversity required for food security,
regulators need to enable and support informal seed systems and common pools of crop genetic
resources in ways that they did not need to when seeds were part of the common heritage of
humankind. This requires the development of various open source structures in which the access
and exchange of crop genetic resources, as well as the outcomes of relevant research, are shared
widely and openly.

As discussed, private research funding has increasingly been directed at agricultural

resources while public agricultural funding has decreased. However, IPRs are ill-suited to
incentivise research and development into ecological farming approaches or the needs of small-

1071
Hans Morten Haugen, Manuel Ruiz Muller and Savita Mullapudi Narasimhan, ‘Food Security and Intellectual
Property Rights: Finding the Linkages’ in Tzen Wong and Graham Dutfield (eds), Intellectual Property and Human
Development: Current Trends and Future Scenarios (Cambridge University Press, 2011) 95, 128.
1072
ICESCR art 15.
1073
Courts have expressed a hesitancy to recognise more flexibilities in IP laws pertaining to PGRFA due to the
concern that it will lead to companies developing genetic use restriction technologies, which are essentially seeds
that cannot replicate. See, eg, Jason Savich, ‘Monsanto v. Scruggs: The Negative Impact of Patent Exhaustion on
Self-Replicating Technology’ (2007) 22 Berkeley Technology Law Journal 115, 126. Yet, this kind of technology
could simply be prohibited by governments on public policy grounds.

264 Chapter 7: Seeds

scale farmers.1074 It is difficult to commercialise such research, and promoting ecological
approaches could lead to a drop in corporate profits, as this kind of farming requires less (or even
no) external inputs. As a result, IPRs tend to incentivise private research on and development of
standardised crop (and animal) genetic resources that meet market demand, which outcome is not
necessarily compatible with promoting the agrobiodiversity required for criterion 4 of a RBA to
FS.1075

In accordance with criterion 2 and 4 of a RBA to FS, agricultural research and

development should facilitate agrobiodiversity by developing ecological approaches to
agriculture and by addressing the needs of food insecure farmers. Consequently, increasing
international institutional and state funding of research and development related to plant varieties
and small-scale and/or agroecological farming is vital.

7.3 INTERNATIONAL REGULATION OF PLANT GENETIC RESOURCES FOR

FOOD AND AGRICULTURE

A range of international instruments intersects with crop genetic resources. As this thesis
focuses on agriculture, this chapter does not examine provisions related to ex situ (off-farm)
conservation measures such as seed banks. Likewise, the following excludes international seed
quality standards set by the Agreement on the Application of Sanitary and Phytosanitary
Measures1076 and the Cartagena Protocol.1077 For future research, and to build a complete

1074
Geoff Tansey, ‘Global Rules, Local Needs’ in Geoff Tansey and Tasmin Rajotte (eds), The Future Control of
Food: ‘A Guide to International Negotiations and Rules on Intellectual Property, Biodiversity and Food Security’
(Routledge, 2012) 212 explained that ‘The one vision of the future that is not being facilitated and encouraged by
the way IP rules are developing and affecting the direction of research and development is the ecological approach;
yet that is probably the one with the best chance of working in the long term’.
1075
Varieties must meet certain requirements to be subject to IPRs, and these include, for instance, the need to be
standard or consistent. Furthermore, farmers who grow monoculture crops and retailers, for instance, do not want
their crop to be diverse in shape, traits, colour, etc. Thus, incentives are being created by the market and by IP laws
that promote the standardisation of crop genetic resources. See, eg, Juliana Santilli, Agrobiodiversity and the Law:
Regulating Genetic Resources, Food Security and Cultural Diversity (Taylor and Francis, 2012).
1076
Marrakesh Agreement establishing the World Trade Organization, opened for signature 15 April 1994, 1867
UNTS 493 (entered into force 1 January 1995) annex 1A (SPS Agreement). Sanitary and phytosanitary regulatory
measures are relevant to seeds because they can prevent or limit the import of PGRs for biosecurity reasons. The
SPS Agreement forms part of the World Trade regime and affirms the ability of states to take measures that protect
human, animal or plant life or health with the restriction being that such measures must comply with the agreement.
Specifically, Article 2.2 provides that any phytosanitary measures taken to protect life or health must be based on
scientific principles and not maintained without sufficient scientific evidence.

Chapter 7: Seeds 265

understanding of the international regulation of crop genetic resources and agriculture, an
examination of these instruments is required.

There are two groups of international instruments that are directly relevant to on-farm
access and use of crop genetic resources. The first is international intellectual property laws that
expand IPRs over crop genetic resources. Under this category are the 1994 Agreement on Trade-
Related Aspects of Intellectual Property (TRIPS) 1078 and the International Convention for the
Protection of New Varieties of Plants (UPOV). The second group of instruments asserts state
sovereignty over crop genetic resources and creates various systems to promote access and
benefit-sharing arrangements. Under this category are the Convention on Biological Diversity 1079
and the 2001 International Treaty on Plant Genetic Resources for Food and Agriculture.1080
This section investigates how these instruments promote or hinder a RBA to FS.

7.3.1 International Intellectual Property Agreements

7.3.1.1 Agreement on trade-related aspects of intellectual property
The Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) sets the
minimum level of intellectual property protection that all state members of the World Trade
Organization (WTO) must implement into their domestic regimes.1081 Specifically, member
states are required to provide some kind of IP protections over new varieties for plant

1077
Cartagena Protocol on Biosafety to the Convention on Biological Diversity, concluded 29 January 2000, 2226
UNTS. 208; 39 ILM 1027 (2000); UN Doc. UNEP/CBD/ExCOP/1/3, at 42 (2000), (entered into force 11 September
2003) (Cartagena Protocol). The Cartagena Protocol governs the movements of living modified organisms (LMOs)
between jurisdictions. Its main role is to harmonise and formulate decision-making procedures that respond to the
transboundary movement of LMOs. LMOs are essentially GMOs, but the Protocol uses LMOs to avoid the
definitions and interpretations of GMOs. A key obligation of the protocol is the ‘Advance Informed Agreement’
(AIA) procedure, which allows a state to control the importation of GM seeds in line with considerations relevant to
a RBA to FS.
1078
Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867
UNTS 299 (entered into force 1 January 1995) (Agreement on Trade-Related Aspects of Intellectual Property
Rights) (TRIPS Agreement).
1079
International Convention for the Protection of New Varieties of Plants, adopted 2 December 1961, as revised
1972, 1978 and 1991, [2000] ATS 6 / 33 UST 2703 / 815 UNTS 89 (entered into force 24 April 1998) (UPOV
Convention).
1080
International Treaty on Plant Genetic Resources for Food and Agriculture, opened for signature 3 November
2001 (entered into force 29 June 2004) (ITPGRFA Agreement).
1081
Chapter 9 of this thesis contains a detailed analysis of trade law. This chapter is focused only on those laws
directly relevant to PGRFA.

266 Chapter 7: Seeds

breeders.1082 Therefore, states are required to limit informal seed systems by not allowing such
systems to incorporate new, protected varieties.

The extent of the protections provided to new varieties determines whether IP laws will be
compatible with a RBA to FS. If the protections are strict in terms of the breadth of the rights
provided, the risk that they will interfere with the on-going development of agrobiodiversity and
informal seed systems is higher.

Fortunately, TRIPS is flexible about the form this IP system can take, which may allow a
state to create and develop IP laws that are compatible with a RBA to FS. TRIPS obligates states
to provide intellectual property protections for crop genetic resources. Article 27 requires that
members either:

 Make plant genetic materials capable of being patentable for at least 20 years; or

 Develop some other form of intellectual property protection for plant genetic materials
that is enforceable and non-discriminatory (termed ‘sui generis system’);1083 or

 Combine patent and other forms of intellectual property protections.1084

Under TRIPS, member states are not required to provide patents, nor is there an
explanation about what constitutes an alternative intellectual property system for crop genetic
resources.1085 The choice between patents or some other system is critical, because, as discussed
in the previous section, patents can be particularly restrictive in a way that may impinge on a
RBA to FS, and in particular, criterion 1 and 4. As TRIPS does not specify what constitutes an

1082
TRIPS art 27.
1083
TRIPS art 27(3)(b).
1084
Article 27(1) (1), which explains that all WTO Members must make patent protection available for 20 years for
‘…any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an
inventive step and are capable of industrial application’. Accordingly, TRIPS has a broad understanding of patent
protection. Despite this, Article 27(2) allows Member States to exclude from patentability inventions that are
necessary to ‘protect human, animal or plant life or health or to avoid serious prejudice to the environment’. In fact,
Article 27(3)(b) specifically provides that ‘plants and animals and other micro-organisms’, and ‘essentially
biological processes for the production of plants or animals’ can be excluded from patentability. There is, however, a
limit on the exemption of plants from patentability. Where a member decides to not make plant genetic resources
patentable then they still must provide some form of intellectual property protection for ‘novel’ plant varieties.
Section 27(3)(b) provides that ‘[p]arties shall provide for the protection of plant varieties either by patents or by an
effective sui generis system or any combination thereof’.
1085
In Article 27(3)(b) there is one vague requirement for a sui generis system, which is that the system must be
‘effective’.

Chapter 7: Seeds 267

alternative intellectual property system to patents, members could create IP systems that are
consistent with a RBA to FS.1086 Such a system could facilitate, or at least not infringe upon
informal seed systems as required under criterion 4 of a RBA to FS. For instance, domestic IP
laws could restrict the kind and duration of property rights that can be obtained in a new variety,
while still being consistent with TRIPS.1087

States have commonly not used these flexibilities to design an IP system for crop genetic
resources that align with a RBA to FS. Along with a lack of regulatory capacity, developing
states have been pressured to pursue the Western patent system by those states that have already
provided patents over crop genetic resources (particularly the US).1088 If they resisted
implementing a patent system or were unable to, developing states were pressured to enact an
alternative IP protection system that aligned with the UPOV Convention, which is outlined
below. 1089 The issue with this kind of pressure is that it restricts the ability of states, particularly

1086
Cullet explained that:
There have been attempts to interpret the sui generis option as being limited to the UPOV model, but this is
not the case and developing countries have the possibility to devise an alternative model which, for
instance, takes into account their other treaty obligations in this field as well as Articles 7 and 8 of the
TRIPS Agreement which, to a certain extent, grant developing countries the possibility to implement the
TRIPS Agreement in a manner which fits their specific situation and needs.
Philippe Cullet, ‘Intellectual Property Rights and Food Security in the South’ (2004) 7/3 Journal of
WorldIntellectual Property 261, 269.
Articles 7 and 8 of TRIPS are relevant for understanding how TRIPS obligations are intended to be implemented.
Article 7 of TRIPS acknowledges that IPRs must appropriately balance private rights and public goods by explaining
that IPRs should be created and enforced ‘in a manner conducive to social and economic welfare, and to a balance
of rights and obligations’. Additionally, Article 8 reaffirms that states, when drafting or revising their IP laws and
regulations, are able to ‘adopt measures necessary to protect public health and nutrition, and to promote the public
interest in sectors of vital important to their socio-economic development…’. It limits this principle with the caveat
that ‘provided that such measures are consistent with the provisions of this agreement’. Subsequently, there is some
space in TRIPS to implement its provisions in line with a RBA to FS, but any laws or policies that are inconsistent
with TRIPS, even if they are for the public interest, could be breach of a state’s obligations.
1087
Ibid 275.
1088
It is well known that the US had a significant role in the development of TRIPs and in the implementation of
TRIPS in developing countries. See, eg, Susan K Sell, Private Power, Public Law: The Globalization of Intellectual
Property Rights (Cambridge University Press, 2003) 123–4 where Sell discussed the role of the US in the TRIPS
Council. The TRIPS Council is made up of state member representatives and is responsible for reviewing country
compliance with TRIPS. Sell explained that the US used its postion on the TRIPS Council to pressure developing
country members and confirm the US's interpretation of the TRIPS Agreement. Sell used US reports on its role in
TRIPS Council as evidence. See also, Carolyn Deere, The Implementation Game: The TRIPS Agreement and the
Global Politics of Intellectual Property Reform in Developing Countries: The TRIPS Agreement and the Global
Politics of Intellectual Property Reform in Developing Countries (OUP Oxford, 2008) 179.
1089
De Schutter suggested that developing countries have increasingly adopted UPOV-compliant domestic
legislation because of the technical advice they receive, the level of expertise required to draft IPRs legislation and
regional trade agreements that require UPOV compliance. Olivier De Schutter, ‘The Right of Everyone to Enjoy the
Benefits of Scientific Progress and the Right to Food: From Conflict to Complementarity’ (2011) 33 Human Rights

268 Chapter 7: Seeds

developing states, to determine the level of IPRs suitable for their particular context. For
example, those states with a large population of indigenous or traditional farmers may seek to
allow small-scale experimental uses of commercially developed varieties.

States are further restricted when it comes to formulating sui generis systems if they have
signed a regional trade agreement. In recent decades, regional trade agreements have increased in
size and in the kinds of obligations they impose. For instance, the Trans-Pacific Partnership
Agreement (TPP) requires its state members to sign up to the UPOV Convention and implement
a patent system for crop genetic resources.1090 Seven of the TPP’s 12 members were either not a
signatory to the UPOV Convention or did not have a patent system for seeds prior to entering
into the TPP.1091

In summary, the flexibilities provided by TRIPS allowed state members to create IP

protections that facilitated a RBA to FS in the context of that state’s agricultural systems and
crop genetic resources.1092 External drivers and international pressure have contributed to states
not exploiting these flexibilities for food security and human rights benefits. Furthermore, TRIPS
does present patents as a possibility, such an approach to IPRs in relation to crop genetic
resources is inconsistent with a RBA to FS.1093

Quarterly 304, 319. In fact, UPOV is used by international institutions and scholars to determine how many states
have plant variety protection that is not patents. See, eg, William Lesser, ‘The Effects of TRIPS-Mandated
Intellectual Property Rights on Economic Activities in Developing Countries’ (Prepared under WIPO Special
Services Agreement, Cornell University, World Intellectual Property Organization, 17 April 2001) 9
<http://www.wipo.int/export/sites/www/about-ip/en/studies/pdf/ssa_lesser_trips.pdf>.
1090
See, eg, Advanced Intellectual Property Chapter for All 12 Nations with Negotiating Positions (August 30 2013
Consolidated Bracketed Negotiating Text) (13 November 2013) WikiLeaks Release of Secret Trans-Pacific
Partnership Agreement (TPP) <https://wikileaks.org/tpp/index.html#start>.
1091
The member countries that did not have patent protections and/or were not signatory to UPOV prior to TPP are:
Brunei, Canada, Chile, Malaysia, New Zealand and Vietnam. Canada had some patent protections for crop genetic
resources, which were limited.
1092
Other flexibilities not explored in this chapter are contained in Articles 7 and 8 of TRIPS. These articles are
relevant for understanding how TRIPS obligations are intended to be implemented. Article 7 of TRIPS acknowledges
that IPRs must appropriately balance private rights and public goods by explaining that IPRs should be created and
enforced ‘in a manner conducive to social and economic welfare, and to a balance of rights and obligations’.
Additionally, Article 8 reaffirms that States, when drafting or revising their IP laws and regulations, are able to
‘adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital
important to their socio-economic development…’. It limits this principle with the caveat that ‘provided that such
measures are consistent with the provisions of this agreement’.
1093
Another point not in the text is that where laws or policies are found to be inconsistent with TRIPS, even if in the
public interest, they will be viewed as a breach of a state’s WTO obligations. Breaching obligations under WTO law
can have significant economic and political ramifications for a state

Chapter 7: Seeds 269

7.3.1.2 International Convention for the Protection of New Varieties of Plants
The International Convention for the Protection of New Varieties of Plants (UPOV)
provides a framework for domestic laws that protect novel plant varieties. The IP rights
envisaged by UPOV do not take the form of a patent. Accordingly, the IP system for plant
genetic resources designed by UPOV could be adopted by states to meet their TRIPS
requirements concerning crop genetic resources. In fact, membership of UPOV increased post-
TRIPS and again in recent years as states sought to satisfy their obligations under regional trade
agreements.1094

Under UPOV, states are required to create an IP system that acknowledges ‘breeders’
rights’ over ‘protected varieties’. Where an entity has ‘breeders’ rights’, a farmer must obtain
permission from the holder of the ‘breeders’ rights’ (eg through paying for a license) before
reproducing or storing such seeds.1095 These rights last for a minimum of 20 years and extend
beyond seeds to any harvested material obtained through an illegitimate use of a protected
variety. For a variety to be capable of becoming a ‘protected variety’ subject to ‘breeders’
rights’, it must be ‘new, distinct, uniform and stable’.1096

Commentators have critiqued UPOV’s conditions that a variety must be ‘uniform and
stable’ as these features are unlikely to exist in varieties from informal seed systems given the
dynamic, continually evolving nature of these pools.1097 Yet, by limiting what could be a
‘protected variety’, the UPOV is actually preserving the non-exclusive nature of informal seed
systems. If a ‘protected variety’ did encompass varieties from informal seed systems or other
common pools of crop genetic resources, then this would further restrict access. Regardless, the

1094
Graham Dutfield, ‘Food, Biological Diversity and Intellectual Property: The Role of the International Union for
the Protection of New Varieties of Plants (UPOV)’ (Paper Number 9, Quaker United Nations Office, Federal
Ministry for Economic Cooperation and Development (Germany), February 2011) 17
<http://quno.org/sites/default/files/resources/UPOV%2Bstudy%2Bby%2BQUNO_English.pdf> where Dutfield
comments on the increasing membership to UPOV. As of the 22 October 2015, the UPOV Convention had 74
members. See, International Union for the Protection of New Varieties of Plants (UPOV)
<http://www.upov.int/portal/index.html.en>.
1095
UPOV Convention art 14.
1096
Ibid arts 2, 5(1). For more information regarding how these conditions can be examined and met see, ‘General
Introduction to the Examination of Distinctness, Uniformity and Stability and the Development of Harmonized
Descriptions of New Varieties of Plants’ (TG/1/3, International Union for the Protection of New Varieties of Plants,
19 April 2002).
1097
See, eg, Dwijen Rangnekar, ‘Access to Genetic Resources, Gene-Based Inventions and Agriculture’
(Background Paper 3a, Commission on Intellectual Property Rights, 2002)
<http://www.iprcommission.org/papers/pdfs/study_papers/sp3a_rangnekar_study.pdf>.

270 Chapter 7: Seeds

fact that UPOV provides protection for ‘stable’ and ‘uniform’ varieties is consistent with the
criticisms that IPRs incentivise homogeneity in crop varieties instead of incentivising
agrobiodiversity.1098

There is an issue with the requirement that a variety be ‘new’. A variety will be ‘new’ if
the variety ‘[h]as not been sold or otherwise disposed to others… for purposes of exploitation of
the variety’.1099 Essentially, a variety is most likely to be considered ‘new’ if it has never been
part of the commercial seed system (i.e. if it has never has been sold). This creates leeway for
commercial plant breeders to obtain protections over a variety that has only been part of informal
seed systems. Mgbeoji explained that the UPOV convention has ‘[n]o global or absolute standard
for determining novelty. The implication is that mere “discovery” of a new plant species or
varieties could give rise to legal protection’.1100 Where a state adopts the same approach as
UPOV, private actors could use plant variety laws to obtain protections over varieties that were
previously part of common pools and informal seed systems.

Overall then, UPOV raises issues for criterion 4 of a RBA to FS regarding the conservation
of agrobiodiversity and therefore the ecosystem services that underpin agriculture. Furthermore,
states that incorporate UPOV’s definition of a ‘protected variety’ into domestic laws may
infringe on varieties in informal seed systems, which is not consistent with criterion 1 requiring
equitable access to agricultural resources.

The UPOV contains two exceptions to breeders’ rights that are particularly relevant for a
RBA to FS. Firstly, breeders’ rights do not apply to acts done for experimental purposes or for
subsistence farming or private gardening.1101 Secondly, and this is an optional exception, farmers
can reuse the seed they bought from the breeder within reasonable limits.1102 These exceptions
might be seen as a positive development for a RBA to FS, as they allow a sui generis system that

1098
Muriel Lightbourne, Food Security, Biological Diversity and Intellectual Property Rights (Ashgate Publishing,
Ltd., 2013) 72. Note Graham Dutfield, Intellectual Property Rights Trade and Biodiversity (Earthscan, 2000) 53–54
where the author discusses the lack of evidence regarding the link between IPRs and agrobiodiversity loss but
comments that ‘Even so, the very possibility of grave negative environmental and social impacts justifies serious
consideration of how the precautionary principle must be applied in the IPR context’.
1099
UPOV Convention art 6(1).
1100
Ikechi Mgbeoji, Global Biopiracy: Patents, Plants, and Indigenous Knowledge (UBC Press, 2011) 177.
1101
UPOV Convention, art 15(1).
1102
Ibid art 15(2).

Chapter 7: Seeds 271

is less restrictive than patents,1103 and so may help balance the protection of plant breeder rights
with the preservation of informal seed systems. Additionally, the exceptions to breeders’ rights
reflect criterion 2 by providing special treatment for food insecure groups.

When placed in the history of the UPOV text, however, these exceptions are a reduction on
the flexibilities previously provided under UPOV. In the 1978 text, Article 5(1) of UPOV
effectively allowed any farmer to save and re-use seeds from protected varieties for the purposes
of replanting. In fact, a farmer could exchange these seeds without having to pay additional fees
to the plant breeder.1104 The revised 1991 UPOV text curtailed these exceptions to the operation
of plant breeder rights by making them optional.1105 In the same 1991 text, plant breeders rights
were extended to all productions and reproductions of their varieties and any variety that was
‘essentially derived’ from the initial variety.1106

Subsequently, UPOV members have increasingly curtailed the ability of farmers to

incorporate bought seeds into the informal seed systems, innovate and reduce the costs of
production. This is a particularly disadvantageous legal development for food insecure and
small-scale farmers in developing countries, and so is consistent with criterion 2 of a RBA to FS.
Despite offering more of a balance between formal and informal seed systems than patents, the
UPOV is not compatible with a RBA to FS. As a result, the pressure states have received to
adopt UPOV, discussed above in relation to TRIPS, is concerning for a RBA to FS, and in
particular criterion 2 (special treatment for food insecure groups) and criterion 4 (sustainable
use).

1103
Much depends on the domestic patent law. For instance, Australia allows experimental use of a patented
material. See, Patent Act 1990 (Cth) s 119C. While in the USA there are exemptions for research on a patented
product but it is more limiting. See, eg., Madey v. Duke University, 307 F.3d 1351, 1362 (Fed. Cir. 2002).
1104
This is because plant breeder rights only applied to those varieties that were developed for the purposes of
selling on the commercial seed market.
1105
UPOV Convention, art 14(1)(a)(i) now includes multiplication.
1106
‘Essentially derived’ means any variety that was derived in any way from an initial, novel plant variety. Article
14(5)(b) defines ‘essentially derived’ as a variety that retains ‘the expression of the essential characteristics’ of the
initial variety, is clearly distinguishable from the initial variety and results from an act of derivation.

272 Chapter 7: Seeds

7.3.2 Access to and Benefit Sharing from Genetic Resources
The main ABS instruments are the Convention on Biological Diversity (CBD)1107 and the
International Treaty on Plant Genetic Resources used for Food and Agriculture (ITPGRFA).1108
The CBD has a range of protocols and guidelines that are relevant to crop genetic resources,1109
but the most significant is the Protocol on Access to Genetic Resources and the Fair and
Equitable Sharing of Benefits Arising from their Utilization (ABS) to the Convention on
Biological Diversity (Nagoya Protocol) 1110

The ITPGRFA establishes a multilateral ABS system, which differs from the bilateral ABS
framework created under the CBD and expanded upon by the Nagoya Protocol. In bilateral ABS
systems, the exchange of genetic resources is between the providing state and the user, and
benefits are shared from the user to the providing state based on contractual terms that these
parties have reached. In contrast, a multilateral ABS system allows anyone to access and use
genetic resources based on standardised contracts. The benefits that may arise from the access
and use are not conferred on any particular entity but are instead publicly available (eg a new
variety or development of knowledge).

1107
International Convention for the Protection of New Varieties of Plants, adopted 2 December 1961, [2000] ATS
6 / 33 UST 2703 / 815 UNTS 89 (entry into force 24 April 1998) (UPOV Convention).
1108
ITPGRFA.
1109
These include the Conference of the Parties, Bonn Guidelines on Access to Genetic Resources and Fair and
Equitable Sharing of the Benefits Arising out of their Utilization, UNEP/CBD/COP/6/20 (April 2002) (Bonn
Guidelines) and the Cartagena Protocol on Biosafety to the Convention on Biological Diversity, concluded 29
January 2000, 2226 UNTS 208; 39 ILM 1027 (2000); UN Doc. UNEP/CBD/ExCOP/1/3, at 42 (2000), (entered into
force 11 September 2003) (Cartagena Protocol).
1110
Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their
Utilization (ABS) to the Convention on Biological Diversity, adopted 29 October 2010, UN Doc
UNEP/CBD/COP/DEC/X/1, (entered into force 12 October 2014) (Nagoya Protocol). Significantly, the preamble to
the Nagoya Protocol makes several references to agrobiodiversity including an acknowledgement of the:
‘…interdependence of all countries with regard to genetic resources for food and agriculture, as well as their special
nature and importance for achieving food security worldwide and for sustainable development of agriculture in the
context of poverty alleviation and climate change’. From this, we can see the more integrated approach required for
a RBA to FS where connections are drawn between a range of issues including food security, agrobiodiversity, food
production, poverty alleviation and climate change.

Chapter 7: Seeds 273

7.3.2.1 Relationship between access and benefit sharing instruments and the International
Property Law Regime
The various ABS instruments functionally overlap, as their goals and their approaches are
similar and relate to the same issue of access and use of genetic resources.1111 The ITPGRFA
(which came after the CBD) explicitly states that it has been developed in harmony with the CBD
and the governing body of the ITPGRFA is tasked with informing the conference of parties to the
CBD of matters regarding crop genetic resources.1112 Likewise, the Nagoya Protocol
acknowledges the ‘fundamental role’ of the ITPGRFA.1113

The relationship between the ABS international regime and the international intellectual
property regime (UPOV and TRIPS for our purposes) is far from settled.1114 The debate has
generally centred on whether TRIPS and the CBD should be amended to require the disclosure
of, for instance, the origin of the crop genetic resources and evidence of benefit-sharing
arrangements in applications for IPR.1115 Such an approach is consistent with states’ obligations
to protect against third-party interference with human rights (eg the rights of indigenous peoples
to maintain and control genetic resources they have developed).1116 There is also an argument
that ITPGRFA conflicts with TRIPS and UPOV, as it seeks to create a common pool of crop
genetic resources. Yet, because the ITPGRFA has a common pool approach to seeds, it is more
compatible with a RBA to FS, and especially criterion 2 and 4. Given that human rights take
priority over IPRs and that the ITPGRFA is more consistent with the promotion of human rights,

1111
The range of instruments that concern ABS has led scholars to identify it as a ‘regime complex’ where there are
an ‘array of partially overlapping and nonhierarchical institutions governing a particular issue-area. Regime
complexes are marked by the existence of several legal agreements that are created and maintained in distinct fora
with participation of different sets of actors. The rules in these elemental regimes functionally overlap, yet there is
no agreed upon hierarchy for resolving disputes between rules’. See, Kal Raustiala and David G Victor, ‘The
Regime Complex for Plant Genetic Resources’ (2004) 58 International Organization 277, 279.
1112
ITPGRFA 19.3.
1113
Nagoya Protocol preamble paras 16-20.
1114
However, Articles 16(2) and 22 of the CBD affirm that the convention should be interpreted as consistent with
IPRs and that the CBD cannot be used to strip any existing IPRs.
1115
The CBD secretariat is in support of disclosure requirement linked with sanctions where there is a lack of
compliance. See, eg, Convention on Biological Diversity, Working Group on Article 8(J), Proposed Guidelines for
the Development Mechanisms, Legislation or Other Appropriate Initiatives to Ensure the Prior Informed Consent or
Approval and Involvement of Indigenous Peoples and Local Communities for Accessing their Knowledge,
Innovations and Practices, the Fair and Equitable Sharing of Benefits Arising from the Use and Application of Such
Knowledge, Innovations and Practices and for Reporting and Preventing Unauthorized Access to Such Knowledge,
Innovations and Practices, 9th mtg, UN Doc UNEP/CBD/WG8J/92 (24 September 2015).
1116
UNDRIP art 31(1).

274 Chapter 7: Seeds

it is arguable that TRIPS and UPOV should be reformed to be consistent with ITPGRFA.1117
Corporate and related political interests would be a barrier to such a development.

7.3.2.2 Convention on Biological Diversity and the Nagoya Protocol

According to the CBD and as reaffirmed in the Nagoya Protocol, a company’s access to
genetic resources in traditional informal seed systems must be:

 Based on ‘fair and non-arbitrary rules and procedures’ and clear rules and procedures
developing by the providing state;1118

 Facilitated by the state party through domestic governance arrangements;1119

 Subject to the prior, informed consent;1120

 Granted on mutually agreed terms.1121

In order to do this, parties to the CBD and the Nagoya Protocol are obligated to establish
compatible domestic governance arrangements.1122 The main aspects of the ABS scheme will be
considered in turn.

(a) Access: Prior, informed consent

The obligation to seek ‘prior, informed consent’ of the indigenous or local communities
(ILCs) before accessing plant genetic resource is reflective of the human rights principle of ‘free,

1117
For more discussion on this topic, see, Dr Regine Andersen, Governing Agrobiodiversity: Plant Genetics and
Developing Countries (Ashgate Publishing, Ltd., 2013) 196–198.
1118
Nagoya Protocol art 6(3).
1119
CBD art 15(2). The state is required by the Nagoya Protocol to create clear procedures and rules relating to
access including procedures and rules for the establishment of mutually agreed terms. Other aspects related to the
procedural dimension of access are covered by the Nagoya Protocol. For instance, states are required to provide
‘information on how to apply for prior informed consent’ and make decisions in a timely manner. See, Nagoya
Protocol arts 6(1), 6(2).
1120
CBD art 15(5); Nagoya Protocol arts 6-7.
1121
CBD arts 15(7); Nagoya Protocol arts 5-6. The Nagoya Protocol provides the minimum content of ‘mutually
agreed terms’ including that the terms must be in writing and may contain: a dispute resolution clause, terms on
IPRs and benefit-sharing, terms on any third-party use and terms on how to amend the agreement.
1122
Nagoya Protocol art 6(3)(g).

Chapter 7: Seeds 275

prior, informed, consent’ contained in UNDRIP and human rights discourses more generally.1123
In particular, Article 28 of UNDRIP acknowledges that:

Indigenous peoples have the right to redress, by means that can include restitution or,
when this is not possible, just, fair and equitable compensation, for the …resources which
they have traditionally owned or otherwise occupied or used, and which have been
confiscated, taken, occupied, used or damaged without their free, prior and informed
consent.

The requirement of ‘prior, informed consent’ in the CBD and Nagoya Protocol, therefore,
is aligned with criterion 3 of a RBA to FS, which concerns the incorporation of human rights
principles.

However, ‘prior, informed consent’ has limitations and ambiguities in the Nagoya
Protocol. The protocol states that:

In accordance with domestic law, each Party shall take measures, as appropriate, with the
aim of ensuring that the prior informed consent or approval and involvement of
indigenous and local communities is obtained for access to genetic resources where they
have the established right to grant access to such resources (emphasis added).1124

Accordingly, the provision on ‘prior informed consent’ is limited by qualifying language.

The obligation to obtain ‘prior informed consent’ or ‘approval and involvement’ could be
interpreted as a diminishing of the prior, informed consent procedures required under
UNDRIP.1125 Yet, it has been persuasively argued that ‘prior, informed consent’ and ‘approval
and involvement’ have the same meaning in practice, and this interpretation appears to have the
support of the Conference of Parties.1126

1123
UNDRIP art 31(1); ICESCR art 7.
1124
Nagoya Protocol art 6(2).
1125
UNDRIP art 28 acknowledges that ‘Indigenous peoples have the right to redress, by means that can include
restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources
which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken,
occupied, used or damaged without their free, prior and informed consent’, Note also the human rights principles
related to transparency and participation.
1126
Thomas Greiber et al, An Explanatory Guide to the Nagoya Protocol on Access and Benefit-Sharing
(International Union for Conservation of Nature and Natural Resources, 2012) 110–11 where it is argued that ‘The
word involvementdoes not add much meaning to “approval”, as it is hard to see how anyone can approve access
without being involved in the decision-making process. Consequently, a proper understanding of the terms “prior,
informed, consent” and “approval and involvement” essentially boils down to a comparison between the terms

276 Chapter 7: Seeds

 As can be seen in the provision on the previous page, entities must obtain the ‘prior,
informed consent’ of ILCs where an ILC has an ‘established right’ over the genetic resources. A
similar provision exists in relation to benefit sharing.1127 This condition could be interpreted as
requiring domestic legal recognition of an ILC’s right to grant access. If this interpretation was
adopted, the rights of ILCs would be determined by the state. Keeping in mind the non-binding
nature of UNDRIP, states could choose to not recognise indigenous rights to ‘prior, informed
consent’. Alternatively, ‘established right’ could be a reference to relevant customary laws or
international human rights, and again this more rights-based interpretation has been persuasively
argued by a number of scholars.1128

Despite the interpretations of the Nagoya Protocol that align with a RBA to FS, and
particularly criterion 3, the ambiguity of the Nagoya Protocol is an issue for implementation.
This is especially so, as domestic legal recognition of indigenous rights over particular genetic
resources has generally been limited.1129 Harry argued that the vague language of the Nagoya
Protocol:

…gives states broad latitude in their treatment of Indigenous peoples’ rights to control
access to genetic resources and traditional knowledge, and is likely to result in the abuse
of such rights, particularly where such rights are not already clearly specified in the
domestic law.1130

“consent” and “approval”’. Generally speaking, ‘consent’and ‘approval’ have a similar meaning in the English
language... The addition of or approval and involvement to the term ‘prior, informed consent’ could therefore appear
redundant’. This interpretation is consistent with previous decisions by parties to the CBD. See, eg, Conference of
the Parties, Convention on Biological Diversity, Article 8(j) and related provisions, COP 5 Decision V/16 (26 May
2000) para 4.
1127
Article 5(2) of the Nagoya Protocol requires that a state create regulatory frameworks that ensure the benefits
arising from the utilisation of genetic resources ‘that are held by indigenous and local communities, in accordance
with domestic legislation regarding established rights of these indigenous and local communities’ are shared in an
equitable and fair way.
1128
Gurdial Singh Nijar, ‘The Nagoya Protocol on Access and Benefit Sharing of Genetic Resources: Analysis and
Implementation Options for Developing Countries’ (Research Paper 36, The South Centre, March 2011) 25
<http://www.southcentre.int/wp-content/uploads/2013/05/RP36_The-Nogoya-Protocol_EN.pdf>.
1129
See, eg, Jorge Cabrera, Frederic Perron-Welch and Freedom-Kai Phillips, ‘Overview of National and Regional
Measures on Access and Benefit Sharing: Challenges and Opportunities in Implementing the Nagoya Protocol’
(CISDL Biodiversity & Biosafety Law Research Program, 25 June 2014)
<http://www.cisdl.org/aichilex/files/Global%20Overview%20of%20ABS%20Measures_FINAL_SBSTTA18.pdf>.
1130
Debra Harry, ‘Biocolonialism and Indigenous Knowledge in United Nations Discourse’ (2011) 20 Griffith Law
Review 702, 711.

Chapter 7: Seeds 277

 In other words, the Nagoya Protocol is a top-down instrument that is most likely to benefit
those indigenous communities with recognised land rights and rights over particular plant genetic
material. Aside from a potential lack of political will, establishing a clear legal right over genetic
resources is even more difficult in the case of crop genetic materials, because of the collective
and global way in which such resources have developed.

(b) Benefit-Sharing

In reflection of Articles 15(3) and 15(7) of the CBD, the Nagoya Protocol requires that:

Benefits arising from the utilization of genetic resources as well as subsequent

applications and commercialization shall be shared in a fair and equitable way with the
Party providing such resources that is the country of origin of such resources…Such
sharing shall be upon mutually agreed terms.1131

In other words, the providing state and the user negotiate benefit-sharing arrangements.
States are then obligated to share the benefits arising from the use of a genetic resource by a
private entity with relevant ILCs.1132 Similar to the access provisions, the state determines the
benefits that will arise and how these benefits are shared, not an ILC.1133

The emphasis on state authorisation is an issue in countries that lack a strong rule of law or
transparency. Elite capture and corruption are significant impediments to fair and equitable
benefit sharing when benefits are designed to flow from national to the local levels.1134 For ABS
systems to benefit the communities that maintained and developed a variety, broader human
rights procedural principles need to be progressed, including transparency.1135

According to the Nagoya Protocol, the kinds of benefits that should be shared can be
monetary, non-monetary or a combination thereof.1136 Non-monetary benefits include, for
instance, the sharing of research and development results and investments in infrastructure (eg

1131
Nagoya Protocol art 5(1).
1132
Nagoya Protocol art 5(2).
1133
Clive Stannard, ‘The Multilateral System of Access and Benefit Sharing: Could It Have Been Constructed
Another Way?’ in Michael Halewood, Isabel López Noriega and Selim Louafi (eds), Crop Genetic Resources as a
Global Commons: Challenges in International Law and Governance (Routledge, 2013) 243, 254.
1134
Pham Thu Thuy et al, Approaches to Benefit Sharing: A Preliminary Comparative Analysis of 13 REDD+
Countries (CIFOR, 2013) 12–13.
1135
Other issues with the provisions on benefit-sharing include the failure to define ‘utilisation’ and that the
provisions do not apply to traditional knowledge.
1136
Nagoya Protocol annex ‘Monetary and Non-Monetary Benefits’.

278 Chapter 7: Seeds

water tanks for agriculture and roads that help transport and deliver food). The individual context
of the ILC and their participation in the process determines the optimal benefits for a RBA to FS
(monetary, non-monetary or a mix thereof). Some communities prefer the division of monetary
benefits among individuals to avoid village corruption and because they know their specific
needs.1137 Other communities prefer non-monetary benefits that improve agricultural production
and community infrastructure.1138

(c) Implementation and Impact

The CBD has been highly successful in drawing attention to biodiversity and the role of
ILCs in conservation. Subsequently, the CBD has influenced countries to better conserve and
sustainably use biodiversity.1139 Yet, biodiversity targets agreed to by parties to the CBD and
aimed at reducing the rate of biodiversity loss have generally not been achieved.1140 In particular,
the implementation of the CBD in relation to ABS systems has been limited. Laird and Wynberg,
in a report for the Secretariat of the CBD, concluded that ‘[t]he biotechnology sector and its
associated research community are inconsistently engaged with, and aware of, their ABS
obligations under the CBD’.1141 Likewise, food and beverage TNCs were found to have ‘[l]ow
levels of awareness of ABS issues, and remain poorly organised and represented at CBD

1137
See, eg, Elizabeth J Robinson et al, ‘Allocating Community-Level Payments for Ecosystem Services: Initial
Experiences from a REDD Pilot in Tanzania’ (Discussion Paper Series Efd DP 15-27, Environment for
Development Initiative, October 2015) 7 <http://www.rff.org/files/document/file/EfD-DP-15-27.pdf>.
1138
See, eg, Marina Cromberg, Amy E Duchelle and Isa de Oliveira Rocha, ‘Local Participation in REDD+: Lessons
from the Eastern Brazilian Amazon’ (2014) 5 Forests 579 where the authors interviewed 137 households involved
in a ABS scheme and found that most people preferred non-monetary benefits rather than direct cash payments.
1139
See, eg, Bharat H Desai et al, ‘Implementation of the Convention on Biological Diversity: A Retrospective
Analysis in the Hindu Kush-Himalayan Countries’ (nternational Centre for Integrated Mountain Development,
September 2010).
1140
Millennium Ecosystem Assessment Board, ‘Ecosystems and Human Well-Being: Wetlands and Water’
(Synthesis, World Resources Institute, 2005)
<http://www.millenniumassessment.org/documents/document.358.aspx.pdf>; See also, Georgina M Mace et al,
‘Biodiversity Targets after 2010’ (2010) 2 Current Opinion in Environmental Sustainability 3, 4 where the authors
explained, ‘Yet crucially, and regardless of the measures used and the data to hand, evidence from various global and
regional assessments shows that in most places and for most systems studied current rates of biodiversity loss are at
least continuing and often accelerating, largely because the major drivers of biodiversity loss persist, often at
increasing intensity’.
1141
Sarah Laird and Rachael Wynberg, ‘Access and Benefit-Sharing in Practice: Trends in Partnerships Across
Sectors’ (No.38, Secretariat of the Convention on Biological Diversity, 2008) 23
<https://www.cbd.int/doc/publications/cbd-ts-38-en.pdf>.

Chapter 7: Seeds 279

meetings’.1142 Thus, one of the main parties to an ABS system, the user, has been unaware and
potentially unwilling to engage with ABS arrangements.

The Nagoya Protocol was designed to address these implementation difficulties, and so the
protocol seeks to create various points in the international supply chain to check and enforce its
provisions.1143 Specifically, providing countries are required to issue internationally recognised
certificates of compliance.1144 All parties, regardless of whether they are the providing state,
must create designated checkpoints at various stages (eg pre-commercialisation and post-
commercialisation) that check these certificates and collect/receive other relevant information
regarding the ABS activities carried out.1145

In addition to checkpoints and certificates, the Nagoya Protocol establishes an ABS

Clearing-House mechanism.1146 This agency publishes national records of ABS measures
adopted and the details of certificates issued or received. This creates transparency in the laws
and other arrangements concerning crop genetic resources.

Overall, these compliance provisions are significant, as they directly deal with the supply
chain, that is, the actors obtaining and transferring the genetic resources, as opposed to
compliance provisions only requiring a state to provide evidence of implementation. Despite
their potential, the Nagoya Protocol’s implementation has been poor. According to the ABS
Clearing-House, only four countries have checkpoints and only one country has submitted a

1142
Ibid.
1143
In order to assist with compliance, the protocol also: provides for access to model contractual clauses;
encourages capacity building and capacity self-assessments by developing country parties; creates awareness-raising
obligations in relation to the importance of genetic resources and associated traditional knowledge, as well as the
related ABS issues.
1144
Nagoya Protocol art 17. This certificate must contain information such as the issuing authority, the subject
matter and identity of the provider, as well as a unique identifier.
1145
The requirement that all parties (not just the providing states) have checkpoints and measures for compliance is
consistent with the extraterritorial application of human rights. This is because international cooperation is required
under the ICESCR for the progressive realisation of human rights, including the rights to food and culture that are
relevant to PGRFA. Additionally, shifting some of the burden onto developed countries to promote compliance is
equitable, given that users are generally from developed countries and providing states are commonly developing.
Thus, states with more capacity, and that benefit from the user being headquartered in their jurisdiction, should
contribute to compliance efforts.
1146
Nagoya Protocol art 14.

280 Chapter 7: Seeds

certificate.1147 Of the 68 parties to the Nagoya Protocol, only 39 have submitted their ABS
legislative, administrative and policy measures, but this figure is an increase from past years.1148

(d) Compatibility with a Rights-Based Approach

Equitably sharing benefits and providing fair remuneration is compatible with a RBA to FS
but the approach taken by the CBD and the Nagoya Protocol in relation to crop genetic resources
is not. In order to establish ABS systems, the CBD and the Nagoya Protocol affirmed state
sovereignty over all genetic resources, including crop genetic resources, so that entities would
have to negotiate with the state for access and use of materials. Such an approach may provide
special treatment and support for food insecure groups, which would be compatible with
criterion 2 of a RBA to FS.

Yet, increasing the barriers to the interchange of crop genetic resources is inconsistent with
facilitating informal seed systems and common pools of crop genetic resources provided for
under criterion 4 of a RBA to FS. As Prathapan and Rajan explained ‘[n]ations of the world are
linked in a complex network of plant genetic interdependence. No region can afford to isolate
itself, or be isolated, from access to plant germplasm of other regions of diversity’.1149
Essentially, Prathapan and Rajan cast doubt on the sovereignty states have over crop genetic
resources. Rather than being individual holders of crop genetic resources, states are, in reality,
dependent on continual, worldwide exchanges.

Another, related issue with the approach of the CBD and the Nagoya protocol to ABS is
that crop genetic resources are not suitable genetic materials for an exchange between one state
and one user. To understand this point, it is useful to draw a distinction between plant genetic
materials used for pharmaceutical purposes and those used for food and agriculture. Brush
explained:

While crop resources differ in critical aspects from pharmaceutical and natural product
resources, these are often linked into a common category of biological resources that are

1147
Access and Benefit-Sharing Clearing-House (28 January 2016) Convention on Biological Diversity
<https://absch.cbd.int/>.
1148
Ibid.
1149
Priyadarsanan Dharma Rajan and Prathapan Divakaran, ‘Access and Benefit Sharing: Weaving a Rope of Sand’
(2011) 100 Current Science 290, 290.

Chapter 7: Seeds 281

 found in less developed countries, managed by traditional communities, and collected and
used by scientific organizations from industrial nations.1150

Despite these similarities, Brush and others have observed the various characteristics that
set apart crop genetic resources from the genetic materials used for pharmaceutical purposes. To
begin, crop varieties are genetically complex, as numerous genes originating from within or
outside of a specific location control one trait. In contrast, pharmaceutical resources are
commonly valued for one trait or single gene traceable to particular areas.1151 A related
distinction is that crop genetic resources have developed from a worldwide exchange with
contributions by many different farmers and communities, as well as public breeding and storing
programs.1152 Pharmaceutical resources have not had the same history of exchange, collective
management and joint development.1153 These differences make pharmaceutical resources and
not crop genetic resources suitable for a country-to-user exchange.

In summary, the approaches to ABS exemplified in the CBD and the Nagoya Protocol
could be compatible with criterion 2 of a RBA to FS if the benefits are equitably shared with
ILCs. Additionally, the CBD and the Nagoya Protocol, in one sense, are a response to the
exclusive rights granted over genetic resources through IP regimes that lead to biopiracy and the
related human rights violations for ILCs. Whether the ABS system addresses the drawbacks to
expanding IPRs over genetic materials is context-dependent because of the inherent risks
involved in top-down schemes, including elite capture, that may limit the benefits ILCs gain.

Placing exclusionary rights of crop genetic resources degrades the common pooling and
the global flow of crop genetic resources vital for food security. Consequently, the ABS system
created in the CBD and developed further in the Nagoya Protocol is not consistent with criterion
4 of a RBA to FS. To be more compatible, the CBD and the Nagoya Protocol (or future related

1150
Stephen B Brush, ‘Farmers’ Rights and Protection of Traditional Agricultural Knowledge’ (CAPRi Working
Paper No. 36, CGIAR Systemwide Program on Collective Action and Property Rights; International Food Policy
Research Institute, 2005) 21 <http://ageconsearch.umn.edu/bitstream/42491/2/capriwp36.pdf>.
1151
Olivier De Schutter, Seed policies and the right to food: Enhancing agrobiodiversity, encouraging innovation
(Background document to the report A/64/170 presented by Olivier De Schutter, Special Rapporteur on the Right to
Food at the 64th sess of the United Nations General Assembly) (2009) 13. See also, Ibid 13.
1152
Ibid.
1153
Brush, above n 1145.

282 Chapter 7: Seeds

instruments) need to be amended so that crop genetic resources are, as far as possible and with
exceptions depending on context, recognised as a common pool resource.1154

7.3.2.3 International Treaty on Plant Genetic Resources Used for Food and Agriculture
Negotiated by the FAO, the International Treaty on Plant Genetic Resources used for
Food and Agriculture (ITPGRFA) is the first international legal instrument that specifically deals
with crop genetic resources, food security and ABS systems. Moreover, it is the closest the
international community has come to protecting the common pooling of crop genetic resources;
therefore, it is an instrument that is most closely aligned with a RBA to FS, and particularly
criterion 1 and 4 (as explained in section 7.2.3). The ITPGRFA’s objective is to aid in the
conservation and sustainable use of crop genetic resources for food and agriculture.1155 It is
designed to achieve this aim through its recognition of ‘Farmers’ Rights’ and by facilitating
access to and exchange of crop genetic resources for research, breeding and training purposes.

(a) Farmers’ Rights

The ITPGRFA explicitly recognises the contribution that ILCs make to conserve and
develop plant genetic resources that are the basis of food and agriculture.1156 Similar to how
human dignity forms the basis of human rights, the recognition of ILCs contribution to crop
genetic resources forms the basis of ‘Farmers’ Rights’. The ITPGRFA does not outline specific
rights like human rights instruments provide. However, the recognition of Farmers’ Rights does
obligate contracting parties to take specific measures, as contracting parties agreed ‘that the
responsibility for realizing Farmers’ Rights, as they relate to plant genetic resources for food and
agriculture, rests with national governments’.1157

As a result, contracting parties are required to take measures to ‘protect and promote’
Farmers’ Rights, including measures to:

1154
Note though that the Nagoya Protocol art 10 encourages the future development of a multilateral benefit-sharing
mechanism. It states that ‘Parties shall consider the need for and modalities of a global multilateral benefit sharing
mechanism to address the fair and equitable sharing of benefits derived from the utilization of genetic resources and
traditional knowledge associated with genetic resources that occur in transboundary situations or for which it is not
possible to grant or obtain prior informed consent.’
1155
ITPGRFA art 1.1.
1156
ITPGRFA art 9.1.
1157
ITPGRFA art 9.2.

Chapter 7: Seeds 283

  Protect traditional knowledge associated with crop genetic resources;

 Ensure a right to equitably participate in benefit sharing arising from uses;

 Promote and protect the right to participate in making decisions related to conserving
or sustainably using crop genetic resources.1158

These provisions are consistent with criterion 3 of a RBA to FS, which requires that
international instruments incorporate human rights principles.

Similar to the ‘progressive realisation’ principle in ICESCR, the obligations of state parties
are qualified as states must protect and promote Farmers’ Rights in accordance with their needs
and priorities and subject to national legislation.1159 Unfortunately, the acknowledgement of
Farmers’ Rights ends with Article 9 of the ITPGRFA, and thus, there is perhaps a lack of detail,
as well as no specific compliance or funding mechanism to ensure implementation.

The holders of Farmers’ Rights are difficult to determine. FAO Resolution 5/89 explained
that Farmers’ Rights are ‘[v]ested in the international community as trustee for present and future
generations of farmers, for the purpose of ensuring full benefits to all farmers’.1160 Unlike human
rights then, Farmers’ Rights do not exist by virtue of a person’s position as a farmer. Farmers’
Rights also differ from IPRs, as Farmers’ Rights do not provide monopoly control over genetic
resources and associated knowledge. The widespread uptake of IP laws partly due to TRIPS
makes IPRs more enforceable, legitimate and established than Farmers’ Rights. Accordingly,
Farmers’ Rights do not protect informal seed systems to the same extent that IPRs protect
commercial interests.

Farmers’ Rights may be a useful framework to express the interests of smallholder farmers.
However, the concept has not been as influential as other concepts, such as food sovereignty.1161

1158
Ibid.
1159
Ibid.
1160
FAO Resolution, Farmers’ Rights, FAO Res. 5/89, 25th Sess of FAO Conference (Adopted 29 November 1989).
In this resolution, the FAO expanded on the concept of ‘Farmers Rights’ because it was trying to water-down the
common heritage principle that is recognised in the non-binding International Undertaking on Plant Genetic
Resources to provide for the expanding IPRs over PGRFA. See, International Undertaking on Plant Genetic
Resources, Report of the Conference of FAO, 22nd Sess, Resolution 8/83 (23 November 1983). This instrument was
based on the ‘…universally accepted principle that plant genetic resources are a heritage of mankind and
consequently should be available without any restriction’ para [275].
1161
Food Sovereignty was discussed in Chapter 2.

284 Chapter 7: Seeds

Nor has Farmers’ Rights been a discursive tool as prominent as the right to food.1162 This may be
because Farmers’ Rights are reduced to farmers and crop genetic resources, whereas the other
concepts encompass a broader range of activities and actors. Overall then, Farmers’ Rights
contained in the ITPGRFA offer some vague protections for farmers but are completely
inadequate as ‘a measure to counterbalance IPRs’ for a RBA to FS.1163 Farmers’ Rights do not
protect the ability of farmers to contribute and take from a common pool of crop genetic
resources, nor are Farmers’ Rights equal in protection to that offered by IPRs, or even human
rights.

(b) Multilateral Access and Benefit Sharing System

Under the multilateral system created by the ITPGRFA, contracting parties agreed to grant
access to any other contracting party or any person or entity under the jurisdiction of any
contracting party.1164 The operation of the multilateral system is, however, limited to 64 specific
crop varieties listed in Annex I. If a contracting party seeks to access a crop variety not included
in Annex I, it would need to negotiate access according to domestic ABS laws. However, if a
contracting party seeks access to a crop listed under Annex I, it can be assured of access
provided it complies with the conditions of the standardised agreement. While the list of crops
covered by the multilateral system is capable of being expanded, it excludes thousands of crops,
and thus the effectiveness of the ITPGRFAs multilateral system is limited.

The standardised agreement for access and use of crop genetic resources under the
multilateral system is referred to as the Standard Material Transfer Agreement.1165 It includes a
range of conditions relating to access and benefit sharing. For instance, access to genetic
resources under the multilateral system must only be for the purposes of ‘research, breeding and

1162
Food sovereignty generally seeks to enforce Farmers Rights. See, eg, Stop Seed Laws That Criminalise Farmers
& Defend Local Seeds! (9 June 2015) La Via Campesina: The International Peasants Movement
<http://viacampesina.org/en/index.php/main-issues-mainmenu-27/biodiversity-and-genetic-resources-mainmenu-
37/1821-stop-seed-laws-that-criminalise-farmers-defend-local-seeds>.
1163
Sally E Bunning and Catherine L Hill, Farmers’ Rights in the Conservation and Use of Plant Genetic
Resources: A Gender Perspective (1996) Food and Agriculture Organization of the United Nations
<http://www.fao.org/docrep/x0255e/x0255e03.htm>.
1164
ITPGRFA art 12.2.
1165
Ibid art 12.4.

Chapter 7: Seeds 285

training for food and agriculture’ or conservation.1166 Additionally, the entity accessing the
genetic materials under the system cannot claim any IPRs over the resources accessed, though
they could obtain IPRs over a product they develop from the genetic material.1167

In relation to benefit sharing, the contracting parties to the ITPGRFA agree that benefits
arising from access to another country’s crop genetic resources under the multilateral system
should be fairly and equitably shared.1168 For food security, some of the main benefit-sharing
outcomes include the exchange of the research and the access and transfer of improved crop
genetic resources.1169 However, sharing research or an improved variety under the multilateral
system is prevented if there are pre-existing IPRs or any other applicable property rights or
confidentiality agreements.1170 Therefore, an entity can access genetic resources under the
multilateral system, change the accessed genetic resources (eg through genetic engineering), and
obtain IP rights over the altered variety.

Even if a user commercialises a product using crop genetic resources accessed from the
multilateral ABS system, they still have some benefit-sharing obligations. In particular, the
recipient must either pay a percentage of the monetary benefits accumulated through the
commercialisation (generally 1.1 per cent),1171 or make the commercialised product available
without restriction under the multilateral system.1172 When a recipient chooses to pay a
percentage of the monetary benefits rather than make the product available, the money goes into
the ITPGRFA’s trust account used for implementation of the treaty.1173 In addition, once the IPRs

1166
ITPGRFA art 12.3(a). Standard Material Transfer Agreement, Food and Agriculture Organization of the United
Nations (16 June 2006) (Standard Material Transfer Agreement)
< ftp://ftp.fao.org/ag/agp/planttreaty/agreements/smta/SMTAe.pdf> clause 6.1 states that ‘The Recipient undertakes
that the Material shall be used or conserved only for the purposes of research, breeding and training for food and
agriculture. Such purposes shall not include chemical, pharmaceutical and/or other non-food/feed industrial uses’.
1167
Ibid art 12.3(d). See also, Standard Material Transfer Agreement clause 6.2 ‘The Recipient shall not claim any
intellectual property or other rights that limit the facilitated access to the Material provided under this Agreement, or
its genetic parts or components, in the form received from the Multilateral System’ – note that 6.10 ‘A Recipient
who obtains intellectual property rights on any Products developed from the Material or its components, obtained
from the Multilateral System, and assigns such intellectual property rights to a third party, shall transfer the benefit-
sharing obligations of this Agreement to that third party.’
1168
ITPGRFA art 13.1.
1169
Ibid art 13.2.
1170
ITPGRFA art 13.2(a), (b)(i).
1171
Standard Material Transfer Agreement clause 6.7.
1172
Standard Material Transfer Agreement clause 6.8.
1173
ITPGRFA arts 18.4(e)(f), 19(f).

286 Chapter 7: Seeds

over a variety expire, the recipient is encouraged to provide a sample of this product to the
multilateral system.1174

Although there are no case studies, an example of how the ITPGRFA’s multilateral system
could operate in practice is useful for understanding these provisions. A biotechnology company
may access a sample of a genetic resource by contacting a party to the ITPGRFA and entering
into the standardised material transfer agreement. The biotechnology company then takes some
of the accessed material’s genetic components and inserts it into a different variety, it then sells
this modified variety to farmers through commercial seed systems. When selling the variety, the
biotechnology company must pay 1.1 per cent of the sales of the product to the ITPGRFA’s trust
fund or make the genetically modified variety available under the multilateral system.

(c) Implementation and Compliance Mechanisms

The ITPGRFA establishes a governing body and its procedures and mechanisms to
promote compliance. This governing body is further charged with the settlement of disputes
between contracting parties through negotiation and mediation. When ratifying the ITPGRFA, a
contracting party must indicate whether, in situations where a dispute has not been resolved with
another contracting party, they consent to arbitration or submission of the dispute to the ICJ.1175
This is a clever way of ensuring that potential breaches and on-going disputes are addressed
through an international court or arbitration. Rather than waiting for a dispute to arise, and
relying on parties to consent to ICJ’s jurisdiction over the matter, this approach creates a stricter
obligation to address implementation issues.

Where a provider and a user of the multilateral system are involved in a dispute related to
their standardised material transfer agreement, this is then enforceable through domestic court
systems under contract law or by international arbitrators.1176 Depending on whether the court
found the user had breached the contract, a range of remedies are likely to be available. For

1174
Standard Material Transfer Agreement clause 6.9.
1175
ITPGRFA art 22.2.
1176
Ibid art 12.5. The ITPGRFA requires Contracting Parties make such avenues available for its citizens. For
further explanation of how these provisions are likely to be interpreted see, Edgar Tabaro, ‘Negotiating a Standard
Material Transfer Agreement under the International Treaty on Plant Genetic Resources for Food and Agriculture:
Issues and Concerns for Africa’ (2006) 39 Comparative and International Law Journal of Southern Africa 309, 322.

Chapter 7: Seeds 287

instance, the court may provide an injunction preventing the user from further access and
development of the crop genetic resources and/or the user can be ordered to provide
compensation.

(d) Issues and Impact

The overall implementation of the multilateral ABS system has been slow.1177 Less than
one-sixth of the parties have provided notifications regarding the collections they are placing in
the ABS system.1178 Despite being able to, no person or private entity voluntarily submitted any
crop genetic resources to the multilateral system.1179 Additionally, no benefit-sharing payments
were received nor were the voluntary contributions sufficient. In 2011 only 13.7 per cent of the
agreed target for the fund, which was to be reached on December 2011, had been provided.1180

A comprehensive, multinational case study was carried out by two international NGOs the
Biodiversity International1181 and the CCIAR.1182 The study involved four case studies that
illustrated how the multilateral ABS system was being implemented in Kenya, Morocco, The
Philippines and Peru.1183 Common issues experienced by each country were:

 Constraints on supportive action by state organs partly due resource, policy and
technical restrictions;

 Lack of awareness surrounding policy makers understanding of the multilateral

system;

1177
Jose T Esquinas-Alcazar, Christine Frison and Francisco Lopez, ‘Introduction- A Treaty to Fight Hunger- Past
Negotiations, Present Situation and Future Challenges’ in Christine Frison, Franciso Lopez and Jose T Esquinas-
Alcazar (eds), Plant genetic resources and food security: Stakeholder perspectives on the international treaty on
plant genetic resources for food and agriculture (The Food and Agriculture Organization of the United Nations,
Biodiversity International, Earthscant, 2001) 1, 4 <http://www.bioversityinternational.org/e-
library/publications/detail/plant-genetic-resources-and-food-security/> citing. Chiarolla and Juncurt reviewed all
available documentation until 2011 related to the multilateral ABS system.
1178
Ibid.
1179
Chiarolla and Jungcurt, above n 1172, 10.
1180
Chiarolla and Jungcurt, above n 1172.
1181
Biodiversity International is an international research institution.
1182
As discussed at above n 991, CGIAR stands for the ‘Consultative Group on International Agricultural Research’.
It is a partnership organisation connecting various research institutions worldwide in the area of agricultural research
for development. While not part of the United Nations or the World Bank. The CGIAR receives funding from UN
departments, countries and international financial institutions.
1183
This research was carried out over a year with national partners in each country. Each team used similar methods
of data collection.

288 Chapter 7: Seeds

  Weak information systems reducing participation more generally; and

 Limited public sector plant breeding that reduced the opportunities to use the materials
available under the multilateral system.1184

Expanding on these common issues, the case study of Kenya revealed plant breeders’
reluctance to share their crop genetic resources through the multilateral system.1185 Three main
reasons for this reluctance were identified. Firstly, they feared biopiracy, so the possibility of
benefits being shared did not outweigh the risk. This would be difficult to overcome given the
history of biopiracy issues in African countries. Secondly, farmers had inadequate access to
information regarding the system, as well as inadequate information on the crop genetic
resources they bred (eg lack of performance or evaluation data regarding the crop genetic
resources that the multilateral system requires). Thirdly, and this is related to plant breeders’
reluctance to share, there is a lack of particularly elite materials in the multilateral system.1186

While these are significant issues, the multilateral system is not static, and thus it can
evolve and strengthen over time as holders agree to make crop genetic resources available and
awareness increases.1187 As it is the closest mechanism to ensuring open access of crop genetic
resources, it is consistent with criterion 4 of a RBA to FS. Subsequently, more financial support,
as well as widespread awareness raising is required in order for this scheme to be effective. Such
financial support should come from developed countries to developing based on the
agrobiodiversity and stewardship provided by communities in developing countries. This is
consistent with the ICESCR that requires international cooperation for the progressive realisation
of human rights. The financial support should target smallholder farms that practice biodiverse
farming.1188

1184
‘The Multilateral System of Access and Benefit Sharing: Case Studies on Implementation in Kenya, Morocco,
Philippines and Peru’ (Biodiversity International; CGIAR, 2012), 10
<http://www.bioversityinternational.org/fileadmin/_migrated/uploads/tx_news/The_multilateral_system_of_access_
and_benefit_sharing_1575.pdf>.
1185
Ibid 17.
1186
Ibid 17–18.
1187
Daniele Manzella, ‘The Design and Mechanics of the Multilateral System of Access and Benefit Sharing’ in
Michael Halewood, Isabel Lopez Noriega and Selim Louafi (eds), Crop Genetic Resources as a Global Commons:
Challenges in International Law and Governance (Routledge, 2012) 150, 160.
1188
See, eg, Brush, above n 1145, 33.

Chapter 7: Seeds 289

7.4 CONCLUSION

This chapter has provided an overview of the legal and policy issues surrounding the
regulation of crop genetic resources. It determined that criterion 1 and 4 of a RBA to FS requires
the protection of informal seed systems, including the common pooling of crop genetic
resources. This is because common pools of crop genetic materials are a critical part of a range
of human rights, including the right to food and culture, and ensure long-term food security by
maintaining agrobiodiversity.

With the special nature of crop genetic material in mind, the international intellectual
property regime lacks the flexibilities required to be consistent with a RBA to FS. Even where
such flexibilities exist, international pressure has prevented states from creating IP laws that are
consistent with a RBA to FS. Meanwhile, the Nagoya Protocol and the CBD may help address
the negative impacts of the expansion in IPRs by preventing biopiracy and facilitating the
sharing of benefits. Their bilateral ABS scheme is aligned with criterion 2 of a RBA to FS,
which concerns the special support for food insecure groups. Yet, the CBD and the Nagoya
Protocol are not suitable for crop genetic materials because they create another barrier to the
global flow of genetic materials required for food security. The ITPGRFA is a critical
breakthrough for the international regulation of crop genetic resources. It provides an important
framework for common pooling and promotes the conservation of informal seed systems through
Farmers’ Rights.

290 Chapter 7: Seeds

 Pesticides

8.1 OVERVIEW

This chapter continues with the focus on external inputs by analysing the regulatory
framework for pesticides using a RBA to FS. It outlines the issues related to pesticides use and
determines that a RBA to FS in the context of pesticide regulation requires a two-pronged
approach. Firstly, adequate protections must be in place to prevent harmful impacts of pesticide
use on human or environmental health. This requirement is aligned with criterion 1 of a RBA to
FS in the context of agriculture, which provides that instruments provisions must be compatible
with human rights such as the right to health, and criterion 4, which entails reducing the adverse
impacts of industrial farming. Secondly, a RBA to FS requires the facilitation of integrated pest
management as an alternative to pesticide use, which again forms part of criterion 4 that requires
enabling provisions and instruments to facilitate the uptake of agroecological methods.

The chapter then examines the main international regulatory instruments. These
instruments span various regimes including world trade law, international labour standards and
the international chemical law regime. Generally, these regulatory instruments are limited in the
contribution they could make towards a RBA to FS. Primarily, they are restricted by the
difficulties of regulating transnationally operating pesticide companies and by their approaches
to determining risk. Furthermore, the vast majority of the regulatory instruments do not facilitate
the uptake of alternatives to pesticides. Overall then, this chapter finds that a new international
instrument is required to address the limitations of and gaps in the current regulatory framework
for pesticides to make it more in alignment with a RBA to FS.

Chapter 8: Pesticides 291

8.2 PESTICIDES AND A RIGHTS-BASED APPROACH TO FOOD SECURITY

8.2.1 Definition and Categories of Pesticides

‘Pesticide’ is a generic term that includes any substance or combination of substances that
prevent, destroy, repel or mitigate pests that threaten food production.1189 Therefore, pesticides
include, but are not limited to, herbicides, fungicides and insecticides.1190 In fact, pesticides can
be applied at any stage from the production to the consumption of food, to not only remove
insects, diseases and weeds, but also to increase shelf life or enhance crop features (eg plant
growth regulators).1191

Pesticides are a moving target for regulators, as they change quickly in terms of their use
(eg increasing doses required) and their substances (new chemicals or combinations). Parker
explained that a difficulty with ascertaining the amounts and types of pesticides applied is that
‘[f]armers may be so desperate to preserve their livelihood that they spray with frequencies or
chemicals that may be illegal or undesirable and hence kept secret’.1192 Other reasons pesticides

1189
What Is a Pesticide? (6 August 2014) United Nations Environmental Protection Agency
<http://www.epa.gov/pesticides/about/>. Note: the European Parliament and the Council use the term ‘pesticides’
interchangeably with ‘plant protection products’. See Pesticides (23 April 2015) European Commission
<http://ec.europa.eu/food/plant/pesticides/index_en.htm>.
1190
Because it is a broad term, pesticides are categorised in different ways. For instance, the WHO classifies
pesticides by how hazardous the chemicals are that the pesticides contain. These classifications are: extremely (class
Ia), highly (class Ib), moderately (class II), slightly (clase III), or unlikely to be hazardous in normal use. See, ‘The
WHO Recommended Classification of Pesticides by Hazard; Guidelines to Classification’ (World Health
Organization; International Programme on Chemical Safety; Inter-Organization Programme for the Sound
Management of Chemicals, 2009) 78, 5 <http://www.who.int/ipcs/publications/pesticides_hazard_2009.pdf>.
Alternatively, in scientific studies, pesticides are often grouped together under the chemicals they contain, and the
most common chemicals are: organchlorine, organophosphates, carbamates and synthetic pyrethroids. Often,
scientific studies, for instance, those cited in this chapter, test the impacts of a particular chemical in a specific
context, so the effect of pesticides will vary depending on the chemical. See, Jessica Vapnek, Isabella Pagotto and
Margaret Kwoka, Designing National Pesticide Legislation (Food & Agriculture Organization of the United
Nations, 2007) 7.
1191
While there is no absolute definition of a pesticide, the FAO’s International Code of Conduct on the
Distribution and Use of Pesticides, 133rd sess of the FAO Council (November 2002) (Pesticide Code) art 2 provides
the following definition of pesticides: ‘… any substance or mixture of substances intended for preventing,
destroying or controlling any pest, including vectors of human or animal disease, unwanted species of plants or
animals causing harm during or otherwise interfering with the production, processing, storage, transport or
marketing of food, agricultural commodities, wood and wood products or animal feedstuffs, or substances which
may be administered to animals for the control of insects, arachnids or other pests in or on their bodies. The term
includes substances intended for use as a plant growth regulator, defoliant, desiccant or agent for thinning fruit or
preventing the premature fall of fruit, and substances applied to crops either before or after harvest to protect the
commodity from deterioration during storage and transport.’
1192
Christine Parker, ‘Strawberry Fields Forever: Can Consumers See Pesticides and Sustainability as an Issue?’
(2014) 10 Sustainability Science 285, 290.

292 Chapter 8: Pesticides

are continually changing is because pests adapt and become resistant, ergo requiring new or
more pesticides to provide the same level of protection.

8.2.2 Pesticides and Food Security

All pesticides are toxic to at least one group, or all living organisms,1193 and they are
generally toxic to humans.1194 It is commonly held, though, that the benefits of pesticide use for
food security far outweigh the human and environmental costs. Borlaug and Dowswell reflected
on the reasoning behind the intensive use of pesticides and other agrochemicals, and stated that
to ‘Deny farmers access to modern factors of production-such as improved varieties, fertilizers
and crop protection chemicals-and the world will be doomed - not from poisoning, as some say,
but from starvation and social chaos’.1195 From this perspective then, the costs of pesticide use
are far outweighed by the benefits, which include preventing food insecurity that manifests in
starvation as well as anarchy.

The reason pesticides are thought to be beneficial for food security is that they can reduce
the global losses of crops from pests and protect cattle from diseases and ticks, hence more food
is produced. This contribution to food security should not be downplayed, as the amount of
agricultural products lost to pests is significant. Estimations on attainable crop outputs lost due to
pests range from less than 50 per cent for crops like barley to more than 80 per cent for crops like
sugar beet.1196 As discussed in section 2.3.2, the Green Revolution involved the international and
widespread uptake of pesticides, which in turn contributed to phenomenal increases in food
production and food availability in the 1970s and 1980s.

1193
‘Guidelines for the Management of Small Quantities of Unwanted and Obsolete Pesticides’ (Series 7, Food and
Agriculture Organisation of the United Nations, World Health Organization, United Nations Environment
Programme, 1999) 41, 1 <http://www.fao.org/docrep/x1531e/X1531e02.htm#1>; See also, Sophie Drogué and
Federica DeMaria, ‘Pesticide Residues and Trade, the Apple of Discord?’ (2012) 37 Food Policy 641, 642.
1194
Michael Eddleston et al, ‘Pesticide Poisoning in the Developing World—a Minimum Pesticides List’ (2002) 360
The Lancet 1163, 1163.
1195
Norman Borlaug and Christopher Dowswell, ‘Fertilizer: To Nourish Infertile Soil That Feeds a Fertile
Population That Crowds a Fragile World’ (1993)
<http://www.ipni.net/publication/bettercrops.nsf/0/615A18A932BC947385257D320055CDE8/$FILE/BC-1993-
2%20p6.pdf>.
1196
E C Oerke and H W Dehne, ‘Safeguarding Production—losses in Major Crops and the Role of Crop Protection’
(2004) 23 Crop Protection 275.

Chapter 8: Pesticides 293

 While Borlaug and Dowswell were surely right about pesticides increasing food production
in the short-term, they adopted a reductionist view of food insecurity and downplayed the
damaging and often irreversible environmental and human health impacts associated with
pesticide use. These impacts in turn adversely affect food security and human rights by
undermining the quality of the natural resources on which agriculture and food safety relies. It is
well known that pesticide drift adversely impacts non-target plants and animals (including
humans) by increasing mortality, decreasing fertility and contaminating water.1197 Disturbingly,
an estimated less than 0.1 per cent of pesticides actually reach their target pests, which means
that an estimated 99.9 per cent of pesticides applied actually drift elsewhere into the
environment.1198 Meanwhile, scientific assessments of pesticide safety are highly complex with
wide margins of error.1199

Moreover, pesticide use typically leads to pest outbreaks (as resistance to pesticides
increases as pests evolve), reductions in biodiversity (including in beneficial biota such as natural
enemies to pests), and declines in ecosystem resilience.1200 In summary then, pesticides have a
short-term and seemingly limited effectiveness at reducing targeted pests as most pesticides drift
into the environment, which means the contribution pesticides make to food security by
decreasing crop loss to pests is not as significant as commonly supposed.

1197
See, eg, B Gove et al, ‘Effects of Herbicide Spray Drift and Fertilizer Overspread on Selected Species of
Woodland Ground Flora: Comparison between Short-Term and Long-Term Impact Assessments and Field Surveys’
(2007) 44 Journal of Applied Ecology 374 where herbicide spray was found to adversely affect plants within five
metres of forest areas; Erin Bell, Irva Hertz-Picciotto and James Beaumont, ‘A Case-Control Study of Pesticides and
Fetal Death Due to Congenital Anomalies’ (2001) 12 Epidemiology 148, 151–152 where scientists found in ten
agricultural counties of California that ‘proximity to commercial pesticide applications was associated with an
elevated risk of fetal death due to congenital anomalies’. For an overview, see, Michael S Majewski and Paul D
Capel, Pesticides in the Atmosphere: Distribution, Trends, and Governing Factors (CRC Press, 1996) ch 1.
1198
David Pimentel, ‘Amounts of Pesticides Reaching Target Pests: Environmental Impacts and Ethics’ (1995) 8
Journal of Agricultural and Environmental Ethics 17, 18; David Pimentel and Lois Levitan, ‘Pesticides: Amounts
Applied and Amounts Reaching Pests’ (1986) 36 BioScience 86.
1199
This will be discussed in section 8.3.1.
1200
The negative impacts of pesticides are widely documented. See, eg, P. Pingali, ‘Impact of Pesticides on Farmer
Health and the Rice Environment: An Overview of Results from Multidisciplinary Study in the Philippines’ in
Prabhu L Pingali and Pierre A Roger (eds), Impact of Pesticides on Farmer Health and the Rice Environment
(Springer Science & Business Media, 2012) 3; AW Tejada et al, ‘Assessment of the Environmental Impact of
Pesticides in Paddy Rice Production’ in Prabhu L Pingali and Pierre A Roger (eds), Impact of Pesticides on Farmer
Health and the Rice Environment (Springer Science & Business Media, 2012) 149; Jules Pretty and Rachel Hine,
‘Pesticide Use and the Environment’ in Jules Pretty (ed), The Pesticide Detox: Towards a More Sustainable
Agriculture (Earthscan, 2012) 1; Pimentel, above n 1193, 18.

294 Chapter 8: Pesticides

 This discussion calls into question whether the costs of pesticide use is outweighed by the
benefits of pesticide use for food security. Several studies have compared the environmental and
health costs associated with pesticides and balanced this against direct returns (eg increases in
yields and profits from pesticide use, which in turn could improve food availability and food
access). This body of work has concluded that, when the economic costs of the environmental
and human health impacts of pesticides are calculated, the costs far outweigh economic
returns.1201

Along with environmental and human health impacts that undermine the resources required
for food production, the expense involved in purchasing pesticides excludes many farmers from
their use. Food insecure, small-scale farmers instead require low-cost inputs that do not
undermine the quality of their water or soil.1202 In fact the purchasing of pesticides can contribute
to food insecurity as observed by Cleo, ‘Current production practices are not only unsustainable,
but also, as the high costs demonstrated, may well be a factor in explaining poverty (low
incomes) among farmers, despite adequate food being produced all year around’.1203 Cleo
pointed out that, even where pesticides improve yields by decreasing the amount of crop lost to
pests, the increase income from yield improvements will not be realised if the costs of the

1201
David Pimentel, ‘Environmental and Economic Costs of the Application of Pesticides Primarily in the United
States’ in Dr Rajinder Peshin and Ashok K Dhawan (eds), Integrated Pest Management: Innovation-Development
Process (Springer Netherlands, 2009) 89 <http://link.springer.com/chapter/10.1007/978-1-4020-8992-3_4> where
the author estimated that $12 billion US dollars in environmental and social damages. The major economic and
environmental losses were found to be public health, pesticide resistance pests and crop losses caused by pesticides.
; Kishor Atreya, ‘Health Costs from Short-Term Exposure to Pesticides in Nepal’ (2008) 67 Social Science &
Medicine 511 where the author looked at how much an individual Nepalese person has to provide in taxes in order
for the health care system to look after people ill from pesticide exposure (around 144 rupees). Atreya concluded
that although the health care costs reduced the economic gains from pesticide use, they did not do so enough to
outweigh a preference for pesticide use. However, the author noted difficulties in data gathering and limitations of
the study (eg did not encompass long-term effects or environmental damage) and ultimately concluded that ‘The
cost of pesticide pollution for society is likely to be significantly higher than the cost estimated here’.; Wagner
Lopes Soares and Marcelo Firpo de Souza Porto, ‘Estimating the Social Cost of Pesticide Use: An Assessment from
Acute Poisoning in Brazil’ (2009) 68 Ecological Economics 2721 found very substantial costs associated from
short-term/acute exposure to pesticide. They explained ‘The results suggest that, for maize, the costs of acute
poisoning could represent 64% of the benefits of using herbicides and insecticides’.
1202
See, eg, Pretty et al, above n 222, 1114 where the authors explain that ’Poor farmers need low-cost and readily
available technologies and practices to increase local food production and to raise their income. At the same time,
land and water degradation is increasingly posing a threat to food security and the livelihoods of rural people who
often live on degradation-prone lands.
1203
Clevo Wilson, ‘Environmental and Human Costs of Commercial Agricultural Production in South Asia’ 20
<http://espace.library.uq.edu.au/view/UQ:10493>.

Chapter 8: Pesticides 295

pesticide are too high. These observations reflect the ‘technology treadmill’ theory discussed in
the previous chapter.

In addition to monetary costs, pesticides are brought about through an energy-intensive

manufacturing process. This further signals a need to reduce or regulate the use of pesticides,
especially in light of climate change on agriculture.1204 Subsequently, China pledged for the
Paris Agreement to achieve zero growth of fertiliser and pesticide use by 2020.1205

Overall, this discussion does not imply that pesticides cannot fulfil their purpose of
reducing crops lost to pests. However, it does suggest that the regulation of pesticides should
seek to reduce pesticide use in a manner proportionate to the contributions and impacts of
pesticides on food security.

8.2.2.1 Global dimensions of pesticides

International law is relevant to pesticide regulation because these chemicals are traded
between countries and the impact of pesticides often has global dimensions due to their ability to
drift for great distances, contaminate shared watercourses and remain on food post-harvest.1206
The ‘circle of poison’ describes a world trade trend in which developed countries continued to
manufacture and export pesticides that they had banned or severely restricted within their own
jurisdiction to protect human and environmental health.1207 Because of the inadequate regulatory
and institutional frameworks to prohibit or restrict use, developing countries imported these
banned pesticides.1208 The circle comes into play where the crops sprayed with the banned
pesticides are then exported back to developed countries in the form of pesticide residue on
foods. While the EU has responded by exporting fewer banned pesticides, the US has taken a

1204
See, eg, Reyes Tirado et al, ‘Greenhouse Gas Emissions and Mitigation Potential from Fertilizer Manufacture
and Application in India’ (2010) 8 International Journal of Agricultural Sustainability 176.
1205
People’s Republic of China, ‘China’s Intended Nationally Determined Contributions’, Intended Nationally
Determined Contribution to the United Nations Framework Convention on Climate Change (Unofficial translation)
(30 June 2015) 9.
1206
See, eg, Ivette Perfecto, ‘Pesticide Exports to the Third World’ (1992) 34 Race & Class 107.
1207
It is sometimes referred to as a ‘cycle of poison’ as well, see Lal Kurukulasuriya and Nicholas A Robinson (eds),
Training Manual on International Environmental Law (UNEP/Earthprint, 2006) 376, para [33]; See also, David
Weir and Mark Schapiro, Circle of Poison: Pesticides and People in a Hungry World (Food First Books, 1981)
which is thought to be one of the first uses of ‘the circle of poison’ to describe the issue. Note that international
financial institutions including the World Bank and the WTO have played a significant role in facilitating the export
of hazardous pesticides to developing countries as part of the multilateral trading system and structural adjustment
programs.
1208
Weir and Schapiro, above n 1202.

296 Chapter 8: Pesticides

different approach by not keeping data on pesticide exports.1209 Regardless, the extraterritorial
application of human rights requires that countries prohibit the export of any banned or severely
restricted pesticide.1210

In recent decades, the ‘circle of poison’ has changed as more developing countries are
manufacturing pesticides and as farmers take up the use of highly toxic pesticides that leave
fewer residues.1211 The result is that export crops may satisfy permitted residue levels (and thus
be potentially less dangerous for consumers), but a greater hazard is imposed on farm workers
and the environment, as farmers are actually using more toxic chemicals but the residues are less
dangerous to consumers.1212 Even though consumers have access to safer foods, these trends are
not consistent with a RBA to FS, particularly criterion 2, because people, and in particular farm
workers, are still producing food in unsafe and unhealthy working conditions.1213

8.2.2.2 Integrated pest management

Because intensive pesticide use is now such an ingrained part of conventional agriculture,
facilitating alternatives to pesticide use could be considered radical. Approaching pesticides as
an optional part of agriculture questions the ‘unspoken and almost unconscious assumptions’
made by corporate and state actors, as well as individual farmers regarding the need for
pesticides and the ability to mitigate associated risks.1214 As Harrison and others have pointed
out, though, alternatives to pesticide use have existed for far longer and ‘[c]ontinue to form the
basis of many highly productive and innovative agricultural systems’ worldwide.1215 In European

1209
Ryan E Galt, ‘Beyond the Circle of Poison: Significant Shifts in the Global Pesticide Complex, 1976–2008’
(2008) 18 Global Environmental Change 786, 790. The US and only provides estimates on the quantity of banned
pesticides it exports.
1210
Paula Barrios, ‘The Rotterdam Convention on Hazardous Chemicals: A Meaningful Step Toward Environmental
Protection?’ (2004) 16 Georgetown International Environmental Law Review 679, 701.
1211
See, eg, Angus Wright, ‘Rethinking the Circle of Poison: The Politics of Pesticide Poisoning among Mexican
Farm Workers’ (1986) 13 Latin American Perspectives 26, 29 where the author explained that developed countries
responded to ‘circle of poison’ issues through the implementation of stricter pesticide residue regulations. As a
result, Wright argued that ‘...pesticide users in Mexico have adopted a new mix of dangerous chemical pesticides,
mostly manufactured in Mexico but widely used in agriculture in developed and underdeveloped countries...In
political practice the circle of poison argument has become a dangerous oversimplification’.
1212
Wright, above n 1206.
1213
ICESCR art 7(b).
1214
Thomas Dunlap, DDT: Scientists, Citizens, and Public Policy (Princeton University Press, 2014) 17.
1215
Jill Lindsay Harrison, Pesticide Drift and the Pursuit of Environmental Justice (MIT Press, 2011) 26–27
<http://site.ebrary.com/lib/alltitles/docDetail.action?docID=10517482>.

Chapter 8: Pesticides 297

and Western countries, where pesticides largely originate, increases in organic agricultural land
and farms since the 1950s illustrate consumer preference for food and agriculture without
pesticides.1216 Facilitating alternatives to pesticide use is, therefore, not as extreme or novel as
may be assumed.

Generally, alternative strategies to dealing with pests are encapsulated in the term
integrated pest management (IPM), which involves strategic planning by farmers using a set of
largely agroecological farm management practices where pesticides are a last resort. Instead of
spraying pests as they become a problem, IPM focuses on the long-term reduction and
prevention of pests.1217 The FAO defines it as:

…the careful consideration of all available pest control techniques and subsequent
integration of appropriate measures that discourage…pest populations and keep pesticides
and other interventions to levels that are economically justified and reduce or minimize
risks to human health and the environment.1218

Therefore, IPM involves monitoring and considering organisms that are or could damage
agricultural crops and determining ways to manage, prevent or control the damage.1219 A farm
may solely use IPM or a combination of pesticides and IPM, but generally for agroecological or
organic farms only IPM is used. This form of pest management progresses a RBA to FS, and in
particular criterion 2 and 4, as IPM reduces the environmental impact of pesticides, increases the
ability of farmers to control pests without energy-intensive and expensive external inputs, and
decreases the risks to food safety and farm worker health.

While IPM approaches differ depending on the context, strategies include crop rotation,
companion planting and the introduction of natural enemies to a particular pest.1220 IPM has

1216
See, eg, ‘The World of Organic Agriculture: Statistics and Emerging Trends’ (Research Institute of Organic
Agriculture; International Federation of Organic Agriculture Movements, 2011)
<https://shop.fibl.org/fileadmin/documents/shop/1546-organic-world-2011.pdf#page=26>.
1217
What Is Integrated Pest Management? - UC Statewide IPM Program (10 July 2014) University of California
Agriculture & Natural Resources <http://www.ipm.ucdavis.edu/GENERAL/whatisipm.html>.
1218
Plant Production and Protection Division: Integrated Pest Management (2015)
<http://www.fao.org/agriculture/crops/thematic-sitemap/theme/pests/ipm/en/>.
1219
See, eg, FAO Asian Regional IPM/Pesticide Risk Reduction Programme (2015) Food and Agriculture
Organization of the United Nations <http://www.vegetableipmasia.org/>.
1220
See, eg, Ahmed Hassanali et al, ‘Integrated Pest Management: The Push–pull Approach for Controlling Insect
Pests and Weeds of Cereals, and Its Potential for Other Agricultural Systems Including Animal Husbandry’ (2008)
363 Philosophical Transactions of the Royal Society of London B: Biological Sciences 611 where the authors

298 Chapter 8: Pesticides

proven to protect crops and reduce pesticide use without affecting yields.1221 Increases in yields
after the adoption of IPM are notable, particularly in developing countries.1222 To date, the
facilitation of IPM has largely taken place at the farm level through education programs, and
such programs have led to widely documented benefits for human rights and food security.1223
For instance, a study by Manci et al based in Southern India found that farmers who had
participated in IPM farmer-field schools1224 not only decreased pesticide use and increased
yields, but farmers also reported that their decision-making had improved and their social capital
(eg connections within the district) had increased.1225

outlined a number of strategies including the use of pheromones to attract pests into traps or to repel them from the
crops. They discussed how these strategies could be or were being used by small-scale farmers in African countries.
1221
See, eg, K L Heong and M M Escalada, ‘Changing Rice Farmers’ Pest Management Practices through
Participation in a Small-Scale Experiment’ (1998) 44 International Journal of Pest Management 191. In this study,
the authors found that farmers were spraying crops that did not need to be sprayed. After training, pesticide use
dramatically decreased. About 77% of the 101 participating farmers reported that rice yields in their test plots (the
ones using IPM) were not different from yields in their control plots.; James Mangan and Margaret S Mangan, ‘A
Comparison of Two IPM Training Strategies in China: The Importance of Concepts of the Rice Ecosystem for
Sustainable Insect Pest Management’ (1998) 15 Agriculture and Human Values 209 where the authors analysed
different methods of training farmers about IPM and found that ‘Farmer Field Schools’ that empowered farmers to
make their own decisions (eg how to respond to a pest) based on what they had been taught and their own
observations. No yield differences were noted between crops where farmers used ecological IPM approaches or
more pesticide-intensive approaches. Similar findings were made in Marco Barzman and Sylvie Desilles,
‘Diversifying Rice-Based Farming Systems and Empowering Farmers in Bangladesh Using the Farmer Field-School
Approach’ in Norman Uphoff (ed), Agroecological Innovations: Increasing Food Production with Participatory
Development (Routledge, 2013) 203.
1222
See, eg, J N Pretty, J I L Morison and R E Hine, ‘Reducing Food Poverty by Increasing Agricultural
Sustainability in Developing Countries’ (2003) 95 Agriculture, Ecosystems & Environment 217 where the authors
analysed survey data from 1999-2000 that encompassed 208 projects in 52 developing countries. These projects
involved the uptake of IPM practices. Pretty et al found that of the 89 projects with detailed yield data there was a
93% increase in food production per hectare on average.; See also, Jules N Pretty, The Pesticide Detox: Towards a
More Sustainable Agriculture (Earthscan, 2005); Jules Pretty, ‘Can Sustainable Agriculture Feed Africa? New
Evidence on Progress, Processes and Impacts’ (1999) 1 Environment, Development and Sustainability 253.
1223
Van den Berg and Jiggins, above n 467, 672 where the authors examined empirical studies regarding the impacts
of Farmer Field Schools and found that the ‘...cases reported compelling descriptions of change in graduated farmers
in terms of increased self-regard, increased control over their assets, social skills, and their interaction with other
farmers, service providers, and local government’. Generally, the authors noted that the studies in the area
immediately reduced pesticide use and in several cases substantial yield increases . See also, Barzman and Desilles,
above n 1216.
1224
Farmer Field Schools were originally developed by the FAO to teach small-scale farmers about IPM. Generally,
Farmer Field School programs take the form of regular group classes where the farmers are given opportunities to
experiment with different IPM methods and learn from peers and external facilitators. See, van den Berg, above n
990; Van den Berg and Jiggins, above n 467.
1225
Francesca Mancini, Ariena Hc Van Bruggen and Janice Ls Jiggins, ‘Evaluating Cotton Integrated Pest
Management (IPM) Farmer Field School Outcomes Using the Sustainable Livelihoods Approach in India’ (2007) 43
Experimental Agriculture 97.

Chapter 8: Pesticides 299

 Adoption of IPM has been widespread, partly because IPM reflects traditional agricultural
approaches. But further uptake has been constrained by a lack of public sector and donor
investment, as well as private sector influences on agricultural research agendas.1226 In addition,
transitioning to IPM can be a difficult and gradual process for farmers, because it is a more
labour and knowledge intensive approach that requires considerable time and training.1227

8.2.3 Rights-Based Approach to Food Security and the Regulation of Pesticides

A range of human rights can and are adversely affected by pesticides. Rights and duty
holders will vary depending on a range of factors, such as where the pesticide was manufactured,
its toxicity, how far the pesticide can drift and its area of application.1228 Broadly though, states
owe duties to protect against human rights abuses of non-state actors including pesticide
manufacturers, distributors and farmers. Human rights relevant to determining appropriate
pesticide regulation for a RBA to FS include the right to favourable working conditions, the right
to adequate food (i.e. food that is safe), and the right to health.

Additionally, food security can be detrimentally affected by violations of these human

rights. For instance, the food utilisation limb of food security requires safe food. Furthermore,
food security will be detrimentally affected where the economic and physical access to food of
an individual or household is limited by illnesses caused by pesticide exposure. Likewise, long-
term food security is threatened by the adverse environmental effects, outlined above, of
unsustainable pesticide use.

For regulatory interventions to be consistent with a RBA to FS, they must seek to protect
and respect human rights by reducing and avoiding the risk of harms from pesticides use
(criterion 1 and 4).1229 Where the harm of a particular pesticide cannot be mitigated, or where

1226
‘Agriculture at a Crossroads’, above n 232, 100.
1227
Riccarda Moser et al, ‘Farmers’ Attitudes toward the Use of Biocontrol Agents in IPM Strawberry Production in
Three Countries’ (2008) 47 Biological Control 125; Volker Beckmann and Justus Wesseler, ‘How Labour
Organization May Affect Technology Adoption: An Analytical Framework Analysing the Case of Integrated Pest
Management’ (2003) null Environment and Development Economics 437.
1228
It could be persuasively argued that a RBA to FS would prohibit most pesticide use given its impacts on human
health and environmental resources on which agriculture relies. But gradual transitions to different agricultural
systems are required to maintain food security in the short-term. While normatively appealing, a prohibition on
pesticides requires a major shift in political interests and sweeping agrarian reform. As a result, a more transitional
approach was adopted for this chapter.
1229
Few scholars have conceptualised the links between human rights and risk management. See, eg, Thérèse
Murphy and Noel Whitty, ‘Is Human Rights prepared? Risk, Rights and Public Health Emergencies' (2009) 17

300 Chapter 8: Pesticides

there is insufficient scientific uncertainty regarding the pesticide’s effects on human rights to
health and long-term food security, states must individually, and through international
cooperation, prohibit the production, sale and distribution of the particular pesticide.1230 This is
consistent with criterion 1 of a RBA to FS, which requires that regulatory instruments protect
against human rights violations.

It is therefore likely that the precautionary principle from international environmental law
will be relevant to determining appropriate pesticide regulation in the context of a RBA to FS.1231
The precautionary principle holds that ‘Where there are threats of serious or irreversible damage,
lack of full scientific certainty shall not be used as a reason for postponing cost-effective
measures to prevent environmental degradation’.1232 In this context, the precautionary principle
provides that regulators should permit the use of a particular pesticide where it can be proven
that the pesticide and the manner of its use will not seriously violate a RBA to FS. Limitations
on pesticide use (eg amount and manner of application) should be proportionate with the duty to
respect and protect human rights and must be in effect before the pesticide is sold to farmers in
order to prevent harm.

In accordance with criterion 3 of a RBA to FS regarding human rights principles,

information regarding the potential risks and impacts of pesticides and the regulatory responses
to them should be widely publicised. Additionally, and as required by criterion 3 of a RBA to FS,
the regulations underpinning pesticide use must be based on transparent procedures and human
rights and environmental impact assessments.1233 Subsequently, to be consistent with a RBA to

Medical Law Review 219; Noel Whitty, ‘Human Rights as Risk: UK Prisons and the Management of Risk and
Rights’ (2011) 13 Punishment & Society 123; Institutional reports can also provide guidance. See, eg, ‘Rights and
Risk: How Human Rights Can Influence and Support Risk Management for Public Authorities in Victoria’
(Victorian Equal Opportunity and Human Rights Commission, May 2014)
<http://www.humanrightscommission.vic.gov.au/index.php/our-resources-and-publications/reports/item/828-rights-
and-risk-how-human-rights-can-influence-and-support-risk-management-for-public-authorities-in-victoria>.
1230
Anand Grover, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health, UN Doc A/HRC/20/15 (10 April 2012) 13.
1231
Alan Boyle, ‘Human Rights and the Environment: A Reassessment’ (UNEP Paper Revised, United Nations
Environment Program, 2010) 16
<http://www.unep.org/environmentalgovernance/Portals/8/documents/Events/HumanRightsEnvironmentRev.pdf>.
1232
Rio Declaration art 15.
1233
Emily Harden, ‘Human Rights Impact Assessment for Pesticide Issues: A Guidebook for Rights-Holders and
Practitioners’ (HRIA/P, Environment and Human Rights Advisory, 2013)
<http://www.environmentandhumanrights.org/wp-content/uploads/2013/10/HRIA_P-Guidebook.pdf>.

Chapter 8: Pesticides 301

FS the regulation of pesticides must enable public awareness on the scientific uncertainties
surrounding pesticide use and the regulatory responses to these uncertainties. Similarly, the
formulation of pesticide regulation must be participatory and transparent.1234 Such an approach
to pesticides and pesticide regulation is not only required for consistency with the international
human rights normative framework, but also for ensuring that risk assessments reflect
community values and experiences while empowering consumers to make informed choices
regarding the safety of their food.

At the same time, risk management of pesticide use should not be the sole focus of
regulatory intervention. To be consistent with a RBA to FS, overall reductions in pesticide use
and the facilitation of IPM need to be key goals of and incorporated into pesticide-related
regulations. Even where risks are appropriately regulated, IPM is a viable and widely recognised
non-chemical option that better facilitates a RBA to FS. In other words, successfully mitigating
the risks posed by pesticides is not sufficient for criterion 4 of a RBA to FS, which requires that
international instruments reduce the impact of industrial agriculture while facilitating
alternatives.

8.3 INTERNATIONAL REGULATION OF PESTICIDES

Based on the above discussion, criterion 1 of a RBA to FS requires precautionary and

adequate protections in place to prevent harmful impacts of pesticide use on human rights or
environmental health. Criterion 3 of a RBA to FS entails transparent, participatory approaches to
pesticide use and its regulation. Furthermore, a RBA to FS requires regulatory interventions that
facilitate the uptake and development of IPM, as illustrated by criterion 4. Various international
regimes influence pesticide use in different ways. For instance, the WTO laws and standards
determine how much pesticide residue should be on food products, while international labour
standards seek to protect farm workers from hazardous conditions. The key aspects of these
instruments and regimes are discussed and analysed using a RBA to FS.

1234
The Special Rapporteur on Human Rights and the Environment, John Knox, has outlined the range of procedural
human rights (and the instruments they are contained in) that are relevant to environmental issues. See, John Knox,
Report of the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean,
healthy and sustainable environment, UN Doc A/HRC22/43 (24 December 2012) paras 25-33.

302 Chapter 8: Pesticides

8.3.1 World Trade Regime: Maximum Residue Levels
8.3.1.1 Sanitary and Phytosanitary Agreement and Codex Alimentarius
The WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS
Agreement) concerns the measures taken by member states to stop the spread of pests and
diseases and/or to reduce risks from additives, contaminants and toxins.1235 It affirms the ability
of states to take measures that protect human, animal or plant life or health, provided such
measures comply with the SPS Agreement.1236 The ability to take such measures is limited by
Article 2.2, which provides that any phytosanitary measures taken to protect life or health must
be based on scientific principles and cannot be maintained without sufficient scientific
evidence.1237

In addition to a reliance on scientific evidence, regulatory measures concerning pesticides

must be based on and conform to international standards, guidelines or recommendations.1238
The SPS Agreement does leave states with some limited regulatory space to pursue measures
stricter than international standards, but their ability to do so has been significantly hampered.1239
Depending on the context, the SPS Agreement could negatively affect the ability of states to
enact measures for a RBA to FS.1240 For instance, these provisions in the SPS Agreement make it

1235
Marrakesh Agreement establishing the World Trade Organization, opened for signature 15 April 1994, 1867
UNTS 493 (entered into force 1 January 1995) annex 1A (SPS Agreement).
1236
Ibid Preamble para 1.
1237
SPS Agreement art 2.2.
1238
SPS Agreement art 3.1.
1239
According to Article 3.3, states are allowed to introduce or maintain SPS measures that are stricter than
international standards if the measure can satisfy the requirements in Article 5 of the SPS Agreement. Article 5
outlines the procedure a state should take when determining whether an SPS measure is required to protect life or
health. Broadly, it requires an assessment of the risks using scientific evidence and the consideration of economic
factors such as the cost-effectiveness of different measures and the need to minimise negative effects on trade.
Where scientific evidence is insufficient, a state can adopt only temporary phytosanitary measures under Article 5.7.
Such temporary measures must be based on ‘pertinent information, including that from the relevant international
organizations’ and the related SPS measured applied by other states. In these situations, states must: seek the
additional information, carry out an objective assessment of the risk and review the measure within a reasonable
time.
1240
For instance, the decision of the WTO Panel in European Communities- Measures Affecting the Approval and
Marketing of Biotech Products, WTO Doc WT/Ds291/R/Corr.1; WT/DS292/R/Cprr/1’ WT/DS293/R/Corr.1 (29
September 2006) (Biotech Products) was thought to interfere with the ability of the EU to regulate for human health
and safety and overlook European culture. This case was brought by the US, Canada and Argentina against the EU
regarding the EU’s restrictions on GM seeds, they argued that such restrictions were not based on sufficient
scientific evidence and so were a breach of the SPS and should be removed. For more information and analysis, see

Chapter 8: Pesticides 303

difficult for developing countries to take more precautionary measures in relation to pesticides
even though developing countries have less regulatory capacity to mitigate risks associated with
pesticide use.

The SPS Agreement relies upon several international organisations or standards in relation
to food and animal feed.1241 Of these, the Codex Alimentarius (the Codex) is the most relevant to
pesticides, as the Codex provides standards for the pesticide residues found on a variety of foods,
including animal products, grains, fruit and vegetables.

The Codex is a joint inter-governmental body and resource for food standards established
by the FAO and WHO. In particular, the Codex has a Committee on Pesticide Residues
(CCPR).1242 Pesticide residues are pesticides that persist on food post-harvest that consumers
may therefore ingest. The CCPR establishes the legally permitted maximum pesticide residue
limits (MRLs) for particular groups of food and animal feed. These MRLs are recognised in the
SPS Agreement as food safety standards that, if applied, will not breach WTO obligations under
the SPS Agreement.1243 In other words, an importing or exporting member state can stop the food
from entering into the market without their actions being viewed as protectionist or a breach of
WTO laws.

Even though Codex is not a legally binding instrument, its role in setting international
standards is widely recognised. Further, the requirement under the SPS Agreement that measures
conform with international standards makes the Codex highly influential in international and

the seminal article David Winickoff et al, ‘Adjudicating the GM Food Wars: Science, Risk, and Democracy in
World Trade Law’ (2005) 30 Yale Journal of International Law 81.
1241
These international institutions and standards include the International Plant Convention and its governing body
and the International Office of Epizootics (termed Office International des Epizooties). In relation to the former, the
International Plant Convention focuses on preventing the spread of pests. See, International Plant Protection
Convention, opened for signature 6 December 1951 (entered into force 3 April 1952). In relation to the latter, the
role of the Office of Epizootics is to inform, survey and control animal diseases and harmonise regulations related to
trade in animals and animal products. See, Our Missions (2015) World Organisation for Animal Health
<http://www.oie.int/>. A main instrument applied by the Office of Epizootics is the Office of Epizootics is the
Terrestrial Animal Health Code (2014), which sets rules and standards related to: animal disease diagnosis,
notification and risk analysis, trade measures, animal welfare and veterinary certification and services. See,
Terrestrial Animal Health Code, adopted by the Office of Epizootics International Committee, 23rd ed, 82th General
Session (May 2014) < http://www.oie.int/international-standard-setting/terrestrial-code/access-online/>.
1242
CODEX Alimentarius: Committees and Task Forces <http://www.codexalimentarius.org/committees-and-task-
forces/en/?provide=committeeDetail&idList=4>. The task force is entitled ‘Codex Committee on Pesticide
Residue’.
1243
See SPS Agreement art 3.2.

304 Chapter 8: Pesticides

domestic pesticide regulation. Subsequently, the Codex is in a position to be a useful instrument
for promoting a RBA to FS by setting standards that promote safe and sustainable agricultural
practices.

Specifically, the MRLs set by the Codex could progress human rights related to favourable
working conditions and human health by setting MRLs at precautionary levels that require
reduced applications of pesticides. Such an approach would be consistent with the food
utilisation limb of food security, as MRLs have the potential to reduce the negative impacts of
pesticide use on food safety. Furthermore, if MRLs were set at precautionary levels this would
reflect criterion 1 of a RBA to FS, as such an approach would be aimed at the protection of
human rights, not just for the consumer, but also for the farm worker spraying the pesticides.

8.3.1.2 Procedures for setting maximum residue levels

To set a MRL, the CCPR performs a risk analysis on a particular chemical. This risk
analysis involves three stages: risk assessment, risk management and risk communication, which
often form part of an iretive process as opposed to delinated phases.1244 These components will
be considered in turn.

(a) Risk Assessment

The risk assessment stage of setting an MRL is conducted by the Joint FAO/WHO
Meeting on Pesticide Residues (JMPR). This advisory body evaluates scientific
evidence and proposes a MRL to the CCPR by taking the following steps: identifying
the hazard, characterising the hazard, assessing exposure and characterising risk.1245
Note though that in practice it is a more iterative process without clearly identifiable
phases.

1244
‘Procedural Manual’ (Codex Alimentarius Commission, 25th ed., 2016) 124.
1245
A range of residue data and information is needed by the JMPR before they will conduct a review. If residue
data or other studies are not sufficient then they will not be considered. In this situation, countries could ban the
import of foods using the pesticides without repercussions. Residue data includes studies that examine the metabolic
and environmental fate of active ingredients and the residue of pesticides once the crop has been processed to
determine if processing has affected the level of pesticide residue. For more information, see, ‘Evaluation of
Pesticide Residues for Estimation of Maximum Residue Levels and Calculation of Dietary Intake’ (Training
Manual, Food and Agriculture Organization of the United Nations, 2011) 473
<http://www.fao.org/fileadmin/templates/agphome/documents/Pests_Pesticides/JMPR/TrainingManualJMPR.pdf>.

Chapter 8: Pesticides 305

 In relation to, hazard identification and characterisation, the JMPR accepts evidence
from stakeholders regarding the agents within a pesticide capable of affecting human
health. Of the evidence submitted to the JMPR by stakeholders (eg pesticide
companies, governments and NGOs),1246 residue data is given the most weight when
setting MRLs.1247

Residue data conveys the amount of pesticide left on food1248 after farmers have
followed the maximum application of pesticides allowed under the FAO’s guidelines
on Good Agricultural Practices.1249 The FAO and WHO explained that ‘The
recommended maximum residue levels depend mainly on the data from supervised
residue trials conducted in line with maximum registered uses (highest application rate,
minimum preharvest interval) within Good Agricultural Practices’.1250 Unfortunately,
agricultural scientists have cast doubt on the methods used (eg the amount of field trials
required) to obtain residue data,1251 and the JMPR generally experiences difficulties

1246
Stakeholders that can submit evidence include: Governments, interested organisations, producers of the
chemicals, and individuals. See, eg, ‘Joint FAO/WHO Meeting on Pesticide Residues 2016 Regular Meeting’ (Food
and Agricultural Organization of the United Nations; World Health Organization, October 2015)
<http://www.fao.org/fileadmin/templates/agphome/documents/Pests_Pesticides/JMPR/2016_JMPR_call_for_data.p
df>.
1247
Note that the JMPR focuses on the residue data but adopts a flexible, case-by-case approach to evaluating
submitted data and information, and it considers toxicological assessments of the pesticide and its residue. See,
‘Evaluation of Pesticide Residues for Estimation of Maximum Residue Levels and Calculation of Dietary Intake’,
above n 1239, ch 13, 105 for more information. The ‘Submission and evaluation of pesticide residues data for the
estimation of maximum residue levels in food and feed’ (Food and Agricultural Organization of the United Nations,
2nd ed., FAO Plant Production and Protection Paper 197, 2009)
<http://www.fao.org/docrep/x5848e/X5848e00.htm#Contents>36 states that ‘For estimating maximum residue
levels of pesticide residues in commodities moving in international trade, results of supervised trials representing the
typical agriculture practices, growing and climatic conditions prevailing in all exporting countries should ideally be
considered’. From this, the MRL is set to reflect the highest level of residue left on the product after following the
prescribed practices residue data is gained from three to six field trials, which are carried out by the manufacturer
under varying environmental conditions and practices. The highest permitted dosage of the pesticide is applied to the
fields in accordance with the FAO’s Good Agricultural Practice.
1248
As well as soils and water or animal feed.
1249
See, eg, ‘Evaluation of Pesticide Residues for Estimation of Maximum Residue Levels and Calculation of
Dietary Intake’, above n 1239, ch 13 for more information. Note that the JMPR is not concerned with the general
environmental impacts but on whether the pesticide will build up in soil or in water and whether this increases
residue levels. See also, Good Agricultural Practices (2008) Food and Agriculture Organization of the United
Nations <http://www.fao.org/prods/gap/>.
1250
Food and Agriculture Organization of the United Nations and the World Health Organization, Principles and
methods for the risk assessment of chemicals in food (Draft, May 2008) 3
<http://www.who.int/foodsafety/chem/residue_limits.pdf>.
1251
For instance, Dugald J MacLachlan and Denis Hamilton, ‘Estimation Methods for Maximum Residue Limits for
Pesticides’ (2010) 58 Regulatory Toxicology and Pharmacology 208 have critiqued the statistical data provided to

306 Chapter 8: Pesticides

 with obtaining information and data because stakeholders do not make evidence
accessible.1252

MRLs are further influenced by scientific constraints. Damalas and Eleftherohorinos

explained that:

[t]he risk assessment of the impact of pesticides either on human health or on the
environment is not an easy and particularly accurate process because of differences in the
periods and levels of exposure, the types of pesticides used (regarding toxicity and
persistence), and the environmental characteristics of the areas where pesticides are
usually applied.1253

These findings led Damalas and Eleftherohorinos to conclude that new scientific tools and
techniques are required to increase the accuracy of risk assessments and that the facilitation of
alternatives to pesticides, as well as changes to the pesticide formulas, could reduce adverse
effects of pesticides. Others suggest that more participatory and transparent approaches to
evaluating scientific evidence for policy is required that involve a range of experts (not just in
science), as well as stakeholders and members of the public.1254 Such improvements would be
consistent with the human rights principles described in criterion 3 of a RBA to FS.

determine MRLs by governments or companies as the statistical data is generally obtained using small datasets and
do not include the criteria applied to select the data.; See also, Zsuzsa Farkas et al, ‘Use of Combined Uncertainty of
Pesticide Residue Results for Testing Compliance with Maximum Residue Limits (MRLs)’ (2015) 63 Journal of
Agricultural and Food Chemistry 4418 where the authors discussed the range of variables in field studies and ways
to reduce the variables to reach more accurate MRLs; Zsuzsanna Horváth et al, ‘Limitations in the Determination of
Maximum Residue Limits and Highest Residues of Pesticides: Part I’ (2014) 49 Journal of Environmental Science
and Health, Part B 143 where the authors found that the number of trials required affect the accuracy of the MRLs.
While the JMPR only requires data from three to six field trials, these scientists found that a minimum of six to eight
trials is required to accurately estimate MRLs.
1252
See, eg, Liora Salter, Mandated Science: Science and Scientists in the Making of Standards (Springer Science &
Business Media, 1988) who interviewed CCPR members. ‘FAO Manual on the Submission and Evaluation of
Pesticide Residues Data for the Estimation of Maximum Residue Levels in Food and Feed’ (Food and Agriculture
Organization of the United Nation, 1997) para 3.3.5 <http://www.fao.org/docrep/x5848e/X5848e00.htm#Contents>
where the FAO observed ‘The JMPR is frequently confronted with difficulties of not having data available even for
important food commodities and especially for commodities grown extensively in tropical regions and developing
countries. It has been recognised that the food industry, including plantations and processors, often has information
that would be valuable for the estimation of maximum residue levels and every effort should be made and support
should be given to enable the data to be made available’.
1253
Christos A Damalas and Ilias G Eleftherohorinos, ‘Pesticide Exposure, Safety Issues, and Risk Assessment
Indicators’ (2011) 8 International Journal of Environmental Research and Public Health 1402, 1402.
1254
This suggestion is often made. See the above sources on post-normal science. See also, Alan Irwin, ‘The Politics
of Talk Coming to Terms with the “New” Scientific Governance’ (2006) 36 Social Studies of Science 299; Lorna

Chapter 8: Pesticides 307

After hazard identification and characterisation, the JMPR consider the extent of exposure to the
chemical and the potential for this exposure to cause health effects. To assess exposure, the
JMPR calculates the Acceptable Daily Intake (ADI). Essentially, the ADI is the theoretical
amount of residue an average adult and child1255 can consume in both the short and long-term
without experiencing adverse health impacts.1256 The ADI is based on toxicological studies
including, for instance, animal testing, to determine the highest level of residue at which there
are still no adverse effects. Other aspects include crop and consumption data to consider
instances where one culture or region consumes more of a particular food than another.1257

Public health commentators have critiqued the evidence used to assess risk for not
reflecting the fact that pesticides accumulate in individuals over time, as people are exposed to
pesticides not just through food consumption but also through air and water contamination.1258
Harrison reviewed pesticide drift data in California US and found that ‘agricultural pesticides
have been detected in rainwater and fog and are routinely found at levels that exceed regulatory
thresholds in surface and groundwater’.1259 Furthermore, even low-doses of pesticides
intermingle in individuals and are capable of causing different toxic effects to the detriment to
human health.1260 Subsequently, environmental health scientists have found monitoring the

Ryan, ‘Governance of EU Research Policy: Charting Forms of Scientific Democracy in the European Research
Area’ (2015) 42 Science and Public Policy 300.
1255
Based on average body weights.
1256
National governments can submit average body weights, but if one does not exist, the assessment operates on 60
kg for adults and 15kg for children. ‘Evaluation of Pesticide Residues for Estimation of Maximum Residue Levels
and Calculation of Dietary Intake’, above n 1239, 6.
1257
See, ibid ch 13 for more information.
1258
Leo Horrigan, Robert S Lawrence and Polly Walker, ‘How Sustainable Agriculture Can Address the
Environmental and Human Health Harms of Industrial Agriculture.’ (2002) 110 Environmental Health Perspectives
445, 451; Julia Green Brody et al, ‘Using GIS and Historical Records to Reconstruct Residential Exposure to Large-
Scale Pesticide Application’ (2002) 12 Journal of Exposure Analysis and Environmental Epidemiology 64.
1259
Harrison, above n 1210, 40. Note that the amount of resources required to monitor pesticide drift likely means
many developing countries would not have the capacity to know whether pesticide drift was being deleterious to
human health.
1260
Antonio F Hernández et al, ‘Toxic Effects of Pesticide Mixtures at a Molecular Level: Their Relevance to
Human Health’ (2013) 307 Toxicology 136; Harold I Zeliger, Food (William Andrew Publishing, 2008) 10
<http://www.sciencedirect.com/science/article/pii/B9780815515890500118>.

308 Chapter 8: Pesticides

pesticide levels in human bodies (eg through testing urine levels or blood samples) helpful for
determining accurate exposure levels and the related long-term health impacts.1261

Finally, at the risk characterisation stage, the JMPR considers the outcome of exposure
assessments and the proposed MRL together and may adjust their final MRL based on the ADI
information. Following this, the JMPR’s recommended MRL is sent to the Codex Committee on
Pesticide Residues and then to the Codex Commission (encompassing 181 member states and
associate members of the FAO and WHO) for scrutiny before a binding MRL is set. Generally,
the Codex Committee on Pesticide Residues adopts the MRLs that the JMPR proposes.1262

(b) Risk Management

The CCPR manages risks identified by the JMPR by setting the MRL. At this stage, the
CCPR makes a decision regarding MRL based on the risk assessment and ‘taking into
account, where appropriate, other legitimate factors relevant for the health protection of
consumers and for the promotion of fair trade practices in food trade’.1263 The other
factors include, for instance, the particular food chain the pesticides are being used in, the
prevalence of a particular disease, and the capacity to enforce and comply with an
MRL.1264

Although the Codex Commission explains that the ‘[p]rimary purpose of setting maximum
limits for pesticide residues in or on food is to protect the health of consumers’,1265 MRLs
are not effectively designed to achieve this objective. To begin, MRLs are more indicative

1261
See, eg, Liza Oates and Marc Cohen, ‘Assessing Diet as a Modifiable Risk Factor for Pesticide Exposure’ (2011)
8 International Journal of Environmental Research and Public Health 1792 where the authors explained that the
effects of pesticides on public health, through dietary exposure, are unclear and difficult to determine. They
suggested urinary tests and population based studies; Karen Huen et al, ‘Organophosphate Pesticide Levels in Blood
and Urine of Women and Newborns Living in an Agricultural Community’ (2012) 117 Environmental Research 8
where the researchers tested pesticide residue in maternal and umbilical cord blood, as well as the urine of mothers
undertaking the study.
1262
‘Researching Health Risks’ (OTA-BBS-570, U.S Congress, 1993) 195
<https://www.princeton.edu/~ota/disk1/1993/9352/9352.PDF> appendix A ‘International Risk Assessment’.
1263
‘Procedural Manual’ (Codex Alimentarius Commission, 25th ed., 2016) 170.
1264
Ibid 127.
1265
Codex Maximum Limits for Pesticide Residue Limits for Pesticides (June 1997)
<http://www.fao.org/waicent/faostat/Pest-Residue/pest-e.htm>.

Chapter 8: Pesticides 309

 of the ways in which pesticides have been applied on the farm.1266 As residue data is given
the most weight, an MRL is largely determined by the amount of pesticides left on food
after field trials where the fields have been sprayed to the maximum extent allowed under
the FAO’s Good Agricultural Practices. When a food item is below the MRL, this is a sign
that the FAO’s Good Agricultural Practices have been followed, but it is not necessarily
indicative of the food item’s safety in terms of the chemicals it contains.

The heavy reliance placed on scientific evidence in setting MRLs is an issue for ensuring a
RBA to FS, and in particular criterion 1, which requires that the objective and design of
international instruments be compatible with human rights. Scientific evidence is generally seen
as value-neutral and objective, but a relatively large body of work originating from scientists and
legal scholars have challenged this long-held assumption.1267 Among particular groups then,
there is an increasing awareness that social, economic and political factors influence how
scientific studies are carried out and evaluated (similar to any other type of research). Diggle
explained that, ‘These influences mean that scientific data, such as those used in pesticide risk
assessment, and science-based advice that is developed on the basis of these data can no longer
be considered as simple representations of nature’.1268 Put differently, scientific advice should
not be adopted by policy makers uncritically, as scientific data and science-based guidance is
situationally sensitive and influenced by ideologies and values.

While methodological and regulatory improvements can and have been made to MRLs,
they are not strictly designed to prevent harm to human health. As a result, it is a system that
does not give appropriate weighting to the realisation of the human right to health or adequate,
safe food as required under criterion 1 of a RBA to FS. If MRLs were aimed at protecting and
progressing human rights, then the process of setting an MRL would be more vigorous,
participatory and precautionary, encompassing other avenues of exposure (eg pesticides

1266
C K Winter, ‘Pesticide Residues in Fruit and Vegetables’ in Wim Jongen (ed), Improving the safety of fresh fruit
and vegetables (Woodhead Publishing, 2005) 135, 252.pest
1267
Silvio O Funtowicz and Jerome R Ravetz, ‘Science for the Post-Normal Age’ (1993) 25 Futures 739; Marta G
Rivera-Ferre and Miquel Ortega-Cerdà, ‘Recognising Ignorance in Decision-Making’ (2011) 12 EMBO reports 393;
Jerome R Ravetz, ‘Food Safety, Quality, and Ethics – A Post-Normal Perspective’ (2002) 15 Journal of Agricultural
and Environmental Ethics 255; Arthur C Petersen et al, ‘Post-Normal Science in Practice at the Netherlands
Environmental Assessment Agency’ (2011) 36 Science, Technology and Human Values 362.
1268
Rebecca Diggle, Regulatory Science and Uncertainty in the Risk Assessment of Pesticide Residues (PhD Thesis,
University of Nottingham, 2010) 30 <http://eprints.nottingham.ac.uk/11451/>.

310 Chapter 8: Pesticides

transferred through umbilical cords or through contaminated air or water). This approach would
likely lower MRLs and would be consistent with criterion 3 of a RBA to FS. Incidentally, setting
MRLs at levels that require a significant reduction in pesticide use may have beneficial effects
on the natural resources used in food production, the resilience of farms and the health of farm
workers.

(c) Risk Communication

Risk communication involves promoting awareness about pesticide-related risks and the
risk management process as well as consultations with stakeholders such as consumers, risk
assessors and the academic community. Specifically, risk communication in the agricultural
context relates to pesticide labels, which the next part discusses in-depth. The sections on risk
communication and MRLs in the procedural manual for Codex standard-setting is brief. The
main provision states that ‘the CCPR, in cooperation with JMPR, shall ensure that the risk
analysis process is fully transparent and thoroughly documented and that results are made
available in a timely manner to members and observers’.1269 Certainly, CCPR meetings and
JMPR reports are publicaly available, which is consistent with transparency as a human rights
principle. However, the evidence used to make decisions is not available partly for reasons of
commercial sensitive and IP protections, and the risk assessment reports as well as the CCPR
meetings tend to narrowly focused on scientific evidence without consideration for other
legitimate factors.1270

8.3.1.3 Implementation and Impact

States can comply with the MRLs to varying degrees. The highest level of compliance is
‘full acceptance’. At this level, a state fully accepts the MRLs and must ensure that both
imported and domestically produced foods are freely distributed where it complies with the
MRLs. Non-complying products should be prevented from distribution.1271 The lowest level of
compliance is referred to as ‘free distribution’. In this case, the state must allow foods complying

1269
‘Procedural Manual’ (Codex Alimentarius Commission, 25th ed., 2016) 182.
1270
See, eg, ‘Report of the 47th Session of the Codex Committee on Pesticide Residues’ (REP15/PR, Codex
Committee on Pesticide Residues, 2016).
1271
‘Codex Alimentarius Commission: Procedural Manual’ (10th ed., Food and Agriculture Organisation, World
Health Organization, Codex Alimentarius Commission, 1997) art 6.A(i).

Chapter 8: Pesticides 311

with MRLs to be freely distributed within its jurisdiction, but there is no obligation to prevent the
circulation of non-conforming products, whether imported or domestically produced.1272

Unfortunately, this lower level of compliance has encouraged or at least not addressed the
double standard for pesticide application in developing countries. In developing countries,
maintenance of residue data and the establishment of national MRLs are often lacking due to
deficiencies in infrastructure and the institutions needed to create and collate the data
necessary.1273 This leads to a situation where farmers conform with Codex MRLs for export
crops only and are not implementing the same standards to crops destined for domestic
consumption. Consequently, food in the domestic markets of particular developing countries
have comparatively higher levels of pesticide residue.1274 This issue may be best addressed at a
domestic level, but resources should be mobilised, with the help of the FAO, to address this
double standard.

In addition, the inspection of imported food against MRLs is a resource-intensive process.

Studies indicate that the detection and import inspection processes are inadequate for checking
compliance with MRLs, even in developed countries like the USA.1275 Thus, MRLs, even for
food in developed countries, are difficult to enforce and guarantee. This supports the need for
alternatives to pesticide use and more precautionary MRLs.

1272
Ibid art 6.A(ii) .
1273
‘Enhancing Developing Country Participation in FAO/WHO Scientific Advice Activities: Report of a Joint
FAO/WHO Meeting, Belgrade, Serbia and Montenegro, 12-15 December 2005’ (FAO Food and Nutrition Paper 88,
Food & Agriculture Org., 2006).
1274
For empirical studies, see eg, Shumei Wang et al, ‘Pesticide Residues in Market Foods in Shaanxi Province of
China in 2010’ (2013) 138 Food Chemistry 2016; Carlos Ricardo Bojacá et al, ‘Evaluation of Pesticide Residues in
Open Field and Greenhouse Tomatoes from Colombia’ (2013) 30 Food Control 400; T P Swarnam and A
Velmurugan, ‘Pesticide Residues in Vegetable Samples from the Andaman Islands, India’ (2013) 185
Environmental Monitoring and Assessment 6119 where it was found that 34% of vegetables had pesticide residues,
and of these 15.3% had levels that exceeded MRLs; For more general discussions on this issue see, eg, K Raman,
‘Applying Grades and Standards for Reducing Pesticide Residues to Access Global Markets’ in Rattan Lal, David O
Hansen and Norman Uphoff (eds), Food Security and Environmental Quality in the Developing World (CRC Press,
2002) 215; David Pimentel, Anthony Greiner and Tad Bashore, ‘Economic and Environmental Costs of Pesticide
Use’ in J Rose (ed), Environmental Toxicology (CRC Press, 2003) 121, 256.
1275
See, eg, Roni A Neff et al, ‘A Comparative Study of Allowable Pesticide Residue Levels on Produce in the
United States’ (2012) 8 Globalization and Health 2 where the authors found a ‘critical information gap regarding
pesticide residues on produce imported to the US Without a more thorough sampling program, it is not possible to
accurately characterize risks’.

312 Chapter 8: Pesticides

8.3.2 International Labour Standards
8.3.2.1 Pesticide exposure and farm workers
By incorporating the human rights framework into food security, we are able to consider
the conditions under which food is produced. In the context of pesticides, criterion 2 of a RBA to
FS draws attention to farm workers and their families, as this group is the most affected by
pesticide exposure.1276 Criterion 1 of a RBA to FS requires that food is produced in a manner that
is dignified and safe, as part of the human right to food, health and safe and healthy working
conditions.1277 Furthermore, the food security status of farm workers and their families can be
adversely affected by pesticide-related harm.1278

The WHO estimates that pesticide poisoning causes 250 000 deaths worldwide,1279 and up
to 5 million cases of acute poisoning each year.1280 Farmers and farm workers that largely work
with their hands are exposed to pesticides through pesticide drift (eg pesticides in the air they are
breathing) or contact with residue (eg touching a plant after it has been sprayed).1281 When

1276
There is no data directly evidencing the fact that pesticide exposure and related illnesses are more common in
farm workers than other populations. Certainly, the assumption is logical given the millions of farm workers and
their vulnerable role in industrial food production. In terms of this being a general assumption, the FAO Assistant-
Director in the Agricultural Department, Louise Fresco commented ‘There is a widespread awareness that farm
workers are at particular risk when pesticides are used improperly or when accidents occur’ in Farm Workers Need
to Be Better Protected against Pesticides: FAO and UNEP Call for Stronger Safety Measures (2004) FAO
Newsroom <http://www.fao.org/Newsroom/en/news/2004/50709/index.html>.
Epidemiological studies that review the common health challenges faced by farmworkers due to pesticide exposure
are useful evidence, see eg, Linda A McCauley et al, ‘Studying Health Outcomes in Farmworker Populations
Exposed to Pesticides’ (2006) 114 Environmental Health Perspectives 953. Additionally, some research is trying to
address the gap Rupali Das et al, ‘Pesticide-Related Illness among Migrant Farm Workers in the United States’
(2001) 7 International Journal of Occupational and Environmental Health 303.
1277
ICESCR arts 7(ii)(b) (right to safe and healthy working conditions), 11 (right to food), 12(1) (right to health).
For a more in-depth discussion on this, see sections 8.2.3 of this chapter and section 3.5.
1278
Sara A Quandt et al, ‘Household Food Security among Migrant and Seasonal Latino Farmworkers in North
Carolina.’ (2004) 119 Public Health Reports 568.
1279
‘Guidelines for the Management of Small Quantities of Unwanted and Obsolete Pesticides’, above n 1188.
1280
The Impact of Pesticides on Health: Preventing Intentional and Unintentional Deaths from Pesticide Poisoning
(2015) World Health Organization <http://www.who.int/mental_health/prevention/suicide/pesticides/en/>. It seems
the data is from 2004, but this is the most up-to-date according to WHO, as they last updated the page in 2015.
1281
Note that another significant avenue of exposure is intentional pesticide poisoning as a form of fatal self-harm,
which is outside of this current discussion regarding pesticide use in agriculture. See eg, Cristina Aprea,
‘Environmental and Biological Monitoring of Exposure to Pesticides in Occupationally Exposed Subejcts’ in
Ramdane Dris and S Mohan Jain (eds), Production Practices and Quality Assessment of Food Crops: Plant Mineral
Nutrition and Pesticide Management (Springer Science & Business Media, 2007) vol 2, 1. They are also exposed
when they mix, transfer, load and apply pesticides, especially where they lack appropriate protective clothing and
spraying equipment and where there has been a workplace accident, such as pesticides splashing back or spilling.
The genital area, forehead, ear canal and scalp are particularly absorbent, and pesticide residues move easily from

Chapter 8: Pesticides 313

workers return home, they expose their families to pesticide residue through their clothes, skin
and tools.1282 Farming families tend to live closer to the fields where pesticides are being
sprayed, which further expose them to pesticides.1283

Pesticide exposure can cause or contribute to a broad range of diseases and health issues
for farmers, farm workers and their families. These diseases and health issues include cancer,
particularly cancer of reproductive organs; intellectual impairments; hormone and reproductive
abnormalities and impaired lung function.1284 For instance, a large study, based in Mexico by
Payan-Renteria et al, tested two groups of 25 farm workers and one control group of 21 workers
not exposed to pesticides. The purpose was to determine whether farm workers chronically
exposed to pesticides were harmed at the genetic level. Payan-Renteria et al found ‘[d]iverse
alterations of the digestive, neurological, respiratory, circulatory, dermatological, renal and

one part of the body to another (eg placing a hand on forehead increases exposure). See, Clyde Ogg et al, ‘Managing
the Risk of Pesticide Poisoning and Understanding the Signs and Symptoms’ (EC2505, University of Nebraska-
Lincoln, October 2012) 16, 3 <http://ianrpubs.unl.edu/live/ec2505/build/ec2505.pdf>.
1282
N J Simcox et al, ‘Pesticides in Household Dust and Soil: Exposure Pathways for Children of Agricultural
Families.’ (1995) 103 Environmental Health Perspectives 1126; D L Levesque, A A Arif and J Shen, ‘Association
between Workplace and Housing Conditions and Use of Pesticide Safety Practices and Personal Protective
Equipment among North Carolina Farmworkers in 2010’ (2012) 3 The International Journal of Occupational and
Environmental Medicine 53; Cynthia L Curl et al, ‘Evaluation of Take-Home Organophosphorus Pesticide Exposure
among Agricultural Workers and Their Children.’ (2002) 110 Environmental Health Perspectives A787.
1283
See eg, ‘Exposed and Ignored: How Pesticides Are Endangering Our Nation’s Farmworkers’ (Report,
Farmworker Justice, 2013) 20, 6
<https://www.farmworkerjustice.org/sites/default/files/aExposed%20and%20Ignored%20by%20Farmworker%20Ju
stice%20singles%20compressed.pdf> where they discussed how farmworkers and their families are exposed. For
instance, in Juthasiri Rohitrattana et al, ‘Organophosphate Pesticide Exposure in School-Aged Children Living in
Rice and Aquacultural Farming Regions of Thailand’ (2014) 19 Journal of agromedicine 406 the authors examined
53 children aged six-eight years old in Thailand and compared the health of children living near rice farms to
children in urban or non-farming areas. They found that those children that lived closer to the rice farms had
significantly more exposure to pesticides. The authors concluded that this was ‘undoubtedly a concern that requires
public health attention, particularly given previous studies documenting neurobehavioral deficits among children
with long-term… exposure’.
1284
Other diseases/health issues linked to pesticide exposure are asthma and chronic bronchitis; congenital
anomalies and foetal death; increased risk of childhood leukaemia, and weakened immune systems. Lynn Goldman,
‘Childhood Pesticide Poisoning: Information for Advocacy and Action’ (United Nations Environment Programme;
Food and Agriculture Organization of the United Nations; and World Health Organization, May 2004) 20, 9–10; Jan
Dich et al, ‘Pesticides and Cancer’ (1997) 8 Cancer Causes & Control 420; Olav Axelson, ‘Pesticides and Cancer
Risks in Agriculture’ (1987) 4 Medical Oncology and Tumor Pharmacotherapy 207; DG Le Couteur et al,
‘Pesticides and Parkinson’s Disease’ (1999) 53 Biomedicine & Pharmacotherapy 122; Lorann Stallones and Cheryl
Beseler, ‘Pesticide Illness, Farm Practices, and Neurological Symptoms among Farm Residents in Colorado’ (2002)
90 Environmental Research 89; E Regidor et al, ‘Paternal Exposure to Agricultural Pesticides and Cause Specific
Fetal Death’ (2004) 61 Occupational and Environmental Medicine 334; Helen D Bailey et al, ‘Parental
Occupational Pesticide Exposure and the Risk of Childhood Leukemia in the Offspring: Findings from the
Childhood Leukemia International Consortium’ (2014) 135 International Journal of Cancer 2157; Ming Ye et al,
‘Occupational Pesticide Exposures and Respiratory Health’ (2013) 10 International Journal of Environmental
Research and Public Health 6442.

314 Chapter 8: Pesticides

reproductive systems probably associated to pesticide exposure’. Significantly, the researchers
suggested that, based on DNA tests, ‘[t]here exist health hazards for those farm workers exposed
to pesticides at organic and cellular levels’.1285

The safety of working conditions for farm workers related to pesticide exposure is not just
an issue in developing countries. Migrant farm workers in developed countries are often
overexposed to pesticides. Most studies come from the US, where the large majority of farm
workers are Latino emigrates from Mexico.1286 This body of work has consistently found that, as
well as being underpaid and food insecure, the health of Latino farmworkers is detrimentally
affected by their exposure to pesticides.1287

8.3.2.2 International Labour Organisation, farm workers and pesticides

International labour laws and standards are a significant part of the regulatory framework
for pesticide use and it is the only area of international law that considers farm workers. As a
result, international regulations have developed in a way that limits the consideration of farm
worker concerns, including pesticide exposure, to the context of labour standards. Scholars argue
that this reductivist approach marginalises farm worker issues, which should be addressed in
other laws that interact with agriculture, including trade and investment.1288 As discussed, this
kind of fragmentation or siloing of issues in international law is not uncommon and can reduce
the effectiveness of international regulations to provide for a RBA to FS.

1285
Rolando Payán-Rentería et al, ‘Effect of Chronic Pesticide Exposure in Farm Workers of a Mexico Community’
(2012) 67 Archives of Environmental & Occupational Health 22.
1286
Most research refers to older government documents for their data, as well as qualitative evidence from on-farm
interviews, see Eduardo Gonzalez, Migrant Farm Workers: Our Nation’s Invisible Population (4 March 2015)
Extension: America’s Research-Based Learning Network <http://www.extension.org/pages/9960/migrant-farm-
workers:-our-nations-invisible-population#.VZzKLfmqpBc>. See also, Erin Robinson et al, ‘Wages, Wage
Violations, and Pesticide Safety Experienced by Migrant Farmworkers in North Carolina’ (2011) 21 New Solutions
251.
1287
RC Elmore and TA Arcury, ‘Pesticide Exposure Beliefs among Latino Farmworkers in North Carolina’s
Christmas Tree Industry’ (2001) 40 American Journal of Industrial Medicine 153; Robinson et al, above n 1276;
Das et al, above n 1266; Levesque, Arif and Shen, above n 1272; Robi Quackenbush, Barbara Hackley and Jane
Dixon, ‘Screening for Pesticide Exposure: A Case Study’ (2006) 51 Journal of Midwifery & Women’s Health 3;
Thomas A Arcury, Sara A Quandt and Gregory B Russell, ‘Pesticide Safety among Farmworkers: Perceived Risk
and Perceived Control as Factors Reflecting Environmental Justice’ (2002) 110 Suppl 2 Environmental Health
Perspectives 233; Mary K Salazar et al, ‘Hispanic Adolescent Farmworkers’ Perceptions Associated with Pesticide
Exposure’ (2004) 26 Western Journal of Nursing Research 146.
1288
Guadalupe T Luna, ‘Agricultural Underdogs and International Agremeents: The Legal Context of Agricultural
Workers within the Rural Economy’ (1996) 26 New Mexico Law Review 9, 12.

Chapter 8: Pesticides 315

 The International Labour Organization (ILO) sets standards for working conditions and
creates rights and duties for employees and employers, as well as a range of other stakeholders
such as trade unions and governments.1289 A number of the ILO Conventions, and supplementary
codes, are relevant to agriculture and pesticide exposure. One dimension of their regulatory focus
is on health and safety in agriculture. Another, related dimension, concerns child labour on
farms.

(a) ILO Convention 184

The Safety and Health in Agriculture Convention 2001 (No. 184) (ILO Convention
184),1290 is the first international instrument that specifically addresses the rights of farm
workers. Yet, the rights and protections provided for under this instrument are of limited
influence, with only 16 states having ratified the instrument.1291 The main function of the ILO
Convention 184 is to guide states in the development of domestic governance arrangements that
promote occupational health and safety in agriculture. As a result, the ILO Convention 184 sets
standards that are useful for determining regulatory interventions in the context of farm workers
and pesticide exposure that progress a RBA to FS. In terms of its substantive provisions, the ILO
Convention 184 creates rights and duties for employers and workers in agriculture that state
parties are required to incorporate into domestic regulations.1292

The rights of farm workers contained in the convention include the right to be informed,
consulted and to participate in matters related to safety and health measures.1293 This aligns with
a RBA, particularly criterion 3, as it reflects human rights principles related to transparency,
empowerment and participation.

1289
Another key actor is the International Union of Food, Agricultural, Hotel, Restaurant, which is a federation of
trade unions and represents agricultural and plantation workers, as well as a range of other workers involved in other
food system activities.
1290
Convention concerning Safety and Health in Agriculture 2001 (No.184), adopted 5 June 2001, 89th ILC session,
International Labour Organization (entry into force 20 September 2003) (ILO Convention No.184).
1291
Ratifications of ILO Conventions: Ratifications by Convention (November 2015) International Labour
Organization
<http://www.ilo.org/dyn/normlex/en/f?p=1000:11300:0::NO:11300:P11300_INSTRUMENT_ID:312329>.
1292
These regulations must: Make an authority responsible for implementation of national laws and regulations
related to health and safety in agriculture; Contain corrective measures and appropriate penalties that suspend or
restrict agricultural activities that pose an imminent risk. Ensure an adequate and appropriate inspection system for
farms. See, ILO Convention No.184 arts 4-5.
1293
ILO Convention No.184 art 8(1).

316 Chapter 8: Pesticides

 In addition, the ILO Convention 184 recognises that farm workers have the right to remove
themselves from an activity where they have ‘reasonable justification to believe there is an
imminent and serious risk to their safety and health (emphasis added)’.1294 Theoretically, this is
an important provision for avoiding harm; practically, the right has its limitations. Pesticide
exposure can have short and long-term ramifications for human health, and thus its harms, while
serious, can be gradual rather than imminent. Moreover, farm workers may be incapable of
forming a ‘reasonable justification’ regarding the risk to their health in order to action their right
to remove themselves. For instance, studies indicate that, generally, farm workers in developing
countries and migrant farm workers do not know that pesticide exposure can be unsafe for a
number of reasons, including illiteracy.1295 This limits their ability to use their rights (under the
ILO Convention 184 and when incorporated into domestic law) to protect themselves against
harm from pesticide exposure. Even if they were aware and the risk was imminent, the power
imbalance between employee and employer and the need for economic access to food heighten
the chances that farm workers will continue working despite the risks.1296

Only two articles in the ILO Convention 184 specifically deal with pesticide exposure.
These articles require national laws and regulations, as well as a competent authority, that deal
with ‘[p]reventive and protective measures for the use of chemicals and handling of chemical
waste’ and ensures that risks, including poisoning, be ‘[p]revented or kept to a minimum’.1297
The domestic regulatory provisions must include the preparation, transportation, dispersion of
pesticides, as well as the handling of equipment and disposal of containers.1298 While the articles
are comprehensive in terms of the activities they cover, they are vague in terms of the level of
protection and in setting standards. For instance, specific protective clothing and equipment
could have been prescribed and a funding scheme set up for developing states that are signatories
to aid implementation.

1294
ILO Convention No.184 art 8(c).
1295
J Gomes, O L Lloyd and D M Revitt, ‘The Influence of Personal Protection, Environmental Hygiene and
Exposure to Pesticides on the Health of Immigrant Farm Workers in a Desert Country’ (1999) 72 International
Archives of Occupational and Environmental Health 40.
1296
Note that the right does provide that farm workers ‘shall not be placed at any diadvantage’ as a result of
removing themselves from danger. Article 8(1)(c).
1297
ILO Convention No.184 art 13(1).
1298
ILO Convention No.184 art 14.

Chapter 8: Pesticides 317

 (b) Chemicals Convention

The ILO Convention Concerning Safety in the Use of Chemicals at Work No. 170
(Chemicals Convention) was adopted 13 years previous to the ILO Convention 184, but it also
has a small membership of 18 member States.1299 The Chemicals Convention does not
specifically focus on farm workers and does not explicitly mention farm workers or pesticides.
Importantly though, the Chemicals Convention goes beyond creating rights, duties and standards
for state regulation. It contains provisions that describe the rights and responsibilities owed by
suppliers and exporting states of chemicals, as well as those owed by employers and
employees.1300

The Chemicals Convention creates chemical supplier responsibilities and standards for the
provision of information regarding the use of chemicals. Labels must contain specific
information as outlined by the ILO (eg identity and classification in regards to hazardous
materials) and the supplier must also provide chemical safety data sheets.1301 Importantly,
pesticides are to be labelled: ‘[i]n a way easily understandable to workers, so as to provide
essential information regarding their classification, the hazards they present and the safety and
precautions to observe.’1302 For instance, pictures portraying the hazards associated with the
chemical could be easily understandable.

Only one provision deals with the responsibilities of states that are exporting chemicals.
Article 19 states that:

When in an exporting member State all or some uses of hazardous chemicals are
prohibited for reasons of safety and health at work, this fact and the reasons for it shall be
communicated by the exporting member State to any importing country.

This is a response to the ‘circle of poison’ issue identified in part 2 of this chapter. Thus, it
shifts some of the regulatory burden onto developed countries that have more regulatory capacity
to determine the risk of a chemical and to implement a prohibition. The provision stops short of

1299
Convention Concerning Safety in the Use of Chemicals at Work No. 170 (No. 170), adopted 6 June 1990, 77th
Session, International Labour Organization (entry into force 4 November 1993) (Chemicals Convention).
1300
The ILO is a tripartite international institution, which means that it does not only make regulatory instruments
for Member States but also for industry and worker representatives.
1301
Chemicals Convention art 6.
1302
Ibid art 7(2).

318 Chapter 8: Pesticides

what is required under human rights law. The extraterritorial application of human rights
arguably requires that a state ban the exportation of a chemical that it has prohibited for reasons
related to the protection of human and environmental health. This is because it is reasonably
foreseeable that exporting a banned substance would impair the enjoyment of economic, social
and cultural rights of citizens in importing countries.1303 Such a position is, however,
controversial and much legal uncertainty surrounds the application of human rights
extraterritorially.

Similar to suppliers, employers have a duty to only use chemicals that are labelled,
classified and come with chemical safety data sheets that meet the requirements of the Chemicals
Convention.1304 If the chemicals are not labelled as required or do not have safety data sheets, the
employer cannot use the chemicals until the information is obtained.1305 This is a useful approach
for implementation, because if a supplier does not follow its obligations, then there is still the
potential for the employer to enforce them. In addition to ensuring that supplied chemicals meet
the standards required, employers are required to, for instance, choose chemicals that minimise
risk and train workers on a continuing basis about safe chemical use.1306

Workers are required to co-operate with their employers where their employer is
discharging their responsibilities and they are required to take reasonable steps to eliminate or
minimise risks.1307 Correspondingly, workers have a number of rights that are similar to those
under ILO Convention 184. As an example, workers and their representatives have the right to
information regarding the labels, chemical safety data sheets, and hazardous properties of the

1303
Maastricht Principles on the Extraterritorial Obligations of States art 11 ‘States must desist from acts and
omissions that create a real risk of nullifying or impairing the enjoyment of economic, social and cultural rights
extraterritorially. The responsibility of States is engaged where such nullification or impairment is a foreseeable
result of their conduct. Uncertainty about potential impacts does not constitute justification for such conduct’. Where
it is a developed state exporting to a developing state, it is more reasonable to foresee that exporting the chemical
would interfere with human rights in the importing state. This is because it is well-known that developing states lack
regulatory capacity in regards to the distribution and use of pesticides.
1304
Ibid art 10.
1305
Ibid.
1306
Other duties an employer has include the duty to: Limit exposure and provide first aid and occupational hygiene
measures and adopt various working systems/practices that eliminate or minimise risk including adequate
occupational hygiene measures. The duties of an employer can be found at Chemicals Convention arts 13- 15.
1307
Chemicals Convention art 17.

Chapter 8: Pesticides 319

pesticides.1308 Such provisions are consistent with criterion 3 of a RBA to FS, which concerns
human rights principles, including participation.

There is a lack of evidence regarding the implementation of the Chemicals Convention and
its influence on non-state actors. Given that it only has 18 signatories, the impact of the
Chemicals Convention on improving the working conditions of farm workers is likely to have
been minimal. Nevertheless, the Chemicals Convention, along with Agenda 21,1309 acted as a
catalyst for a globally harmonised system of hazard classification, safety data sheets and
labelling (GHS).1310

Although the GHS is not binding, international pressure combined with the fact that
harmonising these standards promotes trade, has ensured a wide uptake of the GHS.1311
Subsequently, the GHS has been generally successful at harmonising the labelling and
management of pesticides and other chemicals. The significance of the GHS for a RBA to FS is
that it may improve the quality of the information regarding the chemicals provided to employers
and employees (criterion 3), which in turn could improve the safety on farms regarding chemical
use (criterion 1). Notably, the GHS has standard hazard symbols, which may be helpful for
improving farm worker awareness of the risks involved in pesticide exposure. The primary
implementers of the GHS are states and international institutions, but the GHS also guides the
private sector in implementing the GHS requirements.1312

1308
Ibid art 18.
1309
Agenda 21: Programme of Action for Sustainable Development, U.N. GAOR, 46th Sess., Agenda Item 21, UN
Doc A/Conf.151/26 (14 June 1992), paras 19.26-19.27.
1310
Once the GHS had been created, the Johannesburg Plan of Implementation encouraged states to have the GHS
fully operative by 2008. See, Plan of Implementation of the World Submmit on Sustainable Development, UN Doc,
A/CONF.199/20 (4 September 2002), para 23.
1311
Globally Harmonized System of Classification and Labelling of Chemicals (GHS), UN Doc ESOSOC Res
ST/SGAC.10/30/Rev.4, 4th ed. (2011). In terms of international pressure, the United Nations Economic and Social
Council, for example, have continually followed up on those states that had not implemented the GHS, as well as the
progress of states that have implemented the GHS through various resolutions and consultations. See, Work of the
Committee of Experts on the Transport of Dangerous Goods and on the Globally Harmonized System of
Classification and Labelling of Chemicals, UN Doc ESOSOC Resolution 2003/64 (2003); Work of the Committee of
Experts on the Transport of Dangerous Goods on the Globally Harmonized System of Classification and Labelling
of Chemicals, UN DOC ESOSOC Resolution 2005/53 (2005); Work of the Committee of Experts on the Transport of
Dangerous Goods and on Globally Harmonized System of Classification and Labelling of Chemicals, UN Doc
ESOSOC Resolution 20/2011 (2011)
1312
Ibid para 11.

320 Chapter 8: Pesticides

 (c) Child Labour and Pesticide Exposure

Child labour in agriculture violates a number of human rights due to the hazardous
conditions on farms and other rights held by children, such as the right to education. Children are
more susceptible to harm from pesticide exposure because their brains are still developing and
they have less capacity than adults to detoxify.1313 Epidemiological evidence illustrates a strong
link between childhood exposure to pesticides and cancers, decreased cognitive functions, and
behavioural problems.1314

Because of the neurological impacts of pesticides exposure, as well as missed schooling,

child farm workers in developing countries are likely to be food insecure as adults because the
skills they have developed are only relevant to low-paying farm work.1315 As a result of these
issues and their impacts, the regulation and reduction of child labour in agriculture is relevant to
a RBA to FS.1316 Incidentally, reducing child labour in agriculture is likely to reduce child
exposure to pesticides, promote intergenerational equity and improve long-term food security.

According to human rights laws, states are obligated to prohibit child labour in agriculture
under their domestic criminal laws.1317 Furthermore, state parties are required to take measures
that combat disease and malnutrition through, among other things, ‘[t]he provision of adequate
nutritious foods and clean drinking-water, taking into consideration the dangers and risks of
environmental pollution’.1318 These duties intersect with the negative impacts of pesticides on
natural resources. Under human rights laws specific to the rights of the child, states have a duty

1313
Leslie London et al, ‘Neurobehavioural and Neurodevelopmental Effects of Pesticide Exposures’ (2012) 33
Neurotoxicology 887, 887.
1314
James R Roberts et al, ‘Pesticide Exposure in Children’ (2012) 130 Pediatrics e1757.
1315
‘An Overview of Child Labour in Agriculture’ (International Labour Organisation, 2007)
<http://www.fairplayforchildren.org/pdf/1299573493.pdf>. For an empirical study, see, A Kruger et al, ‘Poverty and
Household Food Security of Black South African Farm Workers: The Legacy of Social Inequalities’ (2006) 9 Public
Health Nutrition 830.
1316
It is important to note, however, that agricultural activities that do not involve exposure to pesticide nor interfere
with the realisation of other rights such as education can have positive impacts on long-term food security. For
instance, participation in family farming is part of the intergenerational transfer of skills. See, ILO & FAO Working
Together: Child Labour in Agriculture (2013) Food and Agriculture Organization of the United Nations
<http://www.fao-ilo.org/fao-ilo-child/>.
1317
ICESCR art 10(3). Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS
3 (entered into force 2 September 1990) art 32(2)(a)-(b) (Convention on the Rights of the Child) In other words, they
are obligated to set a minimum age for employment that, if an employer violates, is sanctionable.
1318
Convention on the Rights of the Child art 24(2)(e)

Chapter 8: Pesticides 321

to regulate domestic applications of pesticides and take precautionary measures in relation to the
specific vulnerabilities a child has to pesticide exposure. This is likely to involve setting MRLs at
lower levels and having regulatory measures in place to decrease pesticide drift.1319

The Convention No.138 on the Minimum Age for Admission to Employment 1973 (ILO
Convention No. 138) sets 18 as the minimum age that a person can use pesticides in the line of
work.1320 The ILO Convention No. 138 also provides that from ages 13-15 children may engage
in ‘light work’ provided it ‘[d]oes not threaten their health and safety or hinder their
education’.1321 This is difficult in the case of pesticides given that breathing or touching plants in
an area recently sprayed can be harmful even if it appears to be non-hazardous, ‘light work’.

The Worst Forms of Child Labour Convention 1999 (No. 182) aims to eliminate the most
damaging forms of child labour, which is work that ‘[b]y its nature or the circumstances in which
it is carried out, is likely to harm the health, safety or morals of children’.1322 Neither agriculture
nor pesticide exposure is specifically mentioned. Regardless, the definition of the ‘worst forms
of child labour’ does seem to encompass those jobs that increase pesticide exposure given the
associated health impacts. Similar to ILO Convention 184, the focus is on states creating national
governance frameworks that ‘[e]liminate as a priority the worst forms of child labour’.1323 Thus,
this convention is broadly consistent with criterion 1 and 2 of a RBA to FS, as such frameworks
reinforce the human rights duties owed by states to protect and consider the needs of the most
vulnerable.

Overall, the ILO Conventions in relation to child labour are top-down and do not engage
with the considerable role that corporate actors have in shaping and regulating their supply
chains. In other words, ILO Conventions seek to influence the state but in doing so they leave

1319
Ibid art 24(4).
1320
Minimum Age Convention 1973 (No. 138), opened for signature 26 June 1973, 58th ILC Session (entry into force
19 June 1976) (ILO Convention No. 138). For minimum age provisions, see ILO Convention No.184 art 16(3); ILO
Convention No.138 art 3(3).There is an exception to this minimum age that is enacted where a state authority has,
after consultations with stakeholders, authorised a child of 16 years of age to undertake hazardous work provided
that they are given appropriate training and health and safety protections.
1321
ILO Convention No. 138 art 7(1).
1322
Worst Forms of Child Labour Convention 1999 (No. 182), adopted 17 June 1999, 87th ILC Session (entry into
force 19 November 2000) art 3 (Convention No. 182).
1323
Convention No. 182 arts 6-7. Member States are required to ‘take effective and time-bound measures’ that:
Prevent the worst forms of child labour; Provide rehabilitation for those children removed from the worst forms of
child labour; Create responses to children at special risk.

322 Chapter 8: Pesticides

out a key group of actors that are perhaps in a better position to regulate the use of their
chemicals.

Yet, the Guiding Principles on Business and Human Rights, discussed in Chapter 3, has
been a catalyst for further developments in relation to corporate actors and child labour in
agriculture.1324 The ILO and the International Organization of Employers have developed a
project that assesses individual corporate compliance with the Guiding Principles on Business
and Human Rights in relation to child labour.1325 Companies can choose to cooperate and the
outcome of their assessment is confidential, which limits the ability of the assessments to bring
to light human rights violations and to build public pressure to respond. However, the
overarching outcome of the project is to create basic standards, endorsed by participating
companies, for business practices that progress and respect children’s rights. This instrument
could be used by third-parties to assess corporate practices and may influence supply chain
management.

Evidence indicates that child labourers in agriculture is on a downward trend, which may
suggest that the ILO Conventions on child labour have effectively influenced domestic programs
and regulations.1326 One of the most successful interventions to reduce child labour on farms is to
provide feeding programs and take home rations through schools.1327 Reflected in this strategy
are the intersections between food insecurity, education and poverty. While providing food at
school can enhance learning and food security for a child, it can also offset a family’s loss of
income when they send a child to school instead of to work because the family does not have to

1324
Human rights and transnational corporations and other business enterprises, UNHRC Res 17/4, 17th sess,
Agenda item 3, UN DOC A/HRC/RES/17/4 (16 July 2011) (Guiding Principles on Business and Human Rights).
1325
Guidance Tool on ‘How to Do Business with Respect for Children’s Right to Be Free from Child Labour’ (2016)
International Labour Organization; International Organization of Employers
<http://www.ilo.org/ipec/projects/global/protect-respect-remedy/lang--en/index.htm>.
1326
‘Marking Progress against Child Labour: Global Estimates and Trends 2000-2012’ (International Labour Office,
International Programme on the Elimination of Child Labour, 2013) 3 <http://www.ilo.org/wcmsp5/groups/public/--
-ed_norm/---ipec/documents/publication/wcms_221513.pdf>.
1327
See, eg, Sandrine Aida Koissy-Kpein, ‘Schools’ Feeding Programs and the Trade-off between Child Labor and
Schooling: Evidence from BRIGHT Survey’ (2013) 5 Research in Applied Economics 59.Assefa Bequele and Jo
Boyden, ‘Child Labour: Problems, Policies and Programs’ in Assefa Bequele and Jo Boyden (eds), Combating Child
Labour (International Labour Organization, 1988) 1, 16.

Chapter 8: Pesticides 323

buy food for their child for particular meals.1328 Furthermore, such programmes even improve
the nutrition of siblings not yet attending school.1329 It is an especially useful strategy for
educating girls and empowering them through adulthood. Empowerment of women in
developing countries is linked to progressing household food security, as explained in Chapter 4
in relation to land tenure.1330

8.3.3 International Code of Conduct on the Distribution and Use of Pesticides

The FAO’s International Code of Conduct on the Distribution and Use of Pesticides
(Pesticide Code) was first adopted in 1985 as a response to the lack of regulatory infrastructure
for controlling pesticide use, especially in developing countries.1331 It has been revised and
updated several times. The aim of the Pesticide Code is to ‘[e]stablish voluntary standards of
conduct for all public and private entities engaged in or associated with the distribution and use
of pesticides’.1332 These standards encompass all areas of pesticide management including the
testing, distribution of and trade in pesticides, and the labelling, packaging and advertising of
pesticides.1333

The Pesticide Code is designed to guide a wide range of actors including international
institutions, states, the pesticide industry, the equipment for application industry, the food
industry, traders of pesticides, any other industries that use or have an interest in pesticides, users
and public interest groups (eg environmental or consumer groups and trade unions).1334 As a
result of encompassing various supply chain actors, the Pesticide Code may be able to have a
broader influence on decision-making and activities than if it were purely a state-based
instrument.

1328
‘Feed Minds, Change Lives: School Feeding, the Millennium Development Goals and Girls’ Empowerment’
(World Food Programme, 2011) 10 <http://www.un.org/en/ecosoc/innovfair2011/docs/wfp.pdf>.
1329
Koissy-Kpein, above n 1317.
1330
See, eg, Aulo Gelli, Ute Meir and Francisco Espejo, ‘Does Provision of Food in School Increase Girls’
Enrollment? Evidence from Schools in Sub-Saharan Africa’ (2007) 28 Food & Nutrition Bulletin 149 where the
provision of food in schools in 32 African countries between 2002-2005 was shown to increase enrollment by 28%
for girls.
1331
Note that there is one other voluntary instrument that sets standards in relation to pesticide. This instrument is
the United Nations Environment Program, London Guidelines for the Exchange of Information on Chemicals in
International Trade, which was adopted in 1987. The focus here is on the Pesticide Code because it is less similar to
the Rotterdam Convention (which is to be discussed in the next section) and is more comprehensive.
1332
Pesticide Code.
1333
Ibid art 1.7.3.
1334
Pesticide Code arts 1.2., 1.7.6.

324 Chapter 8: Pesticides

 Notably for a RBA to FS, the Pesticide Code states that it is ‘[d]esigned to promote
Integrated Pest Management’, and so it encourages states and international actors (eg lending
institutions and donor agencies) to facilitate the use and improvement of IPM by supporting the
development of national IPM policies and practices.1335 The Pesticide Code explains that IPM
policies should be:

[b]ased on strategies that promote increased participation of farmers, (including women’s

groups), extension agents and on-farm researchers, communities and relevant entities
from the public health and other sectors.1336

This provision is an important addition to the Pesticide Code, as IPM programmes that use
bottom-up, participatory models have proven to be highly effective at increasing food
security.1337

Because of its IPM provisions, the Pesticide Code is the first international instrument to
explicitly promote alternatives to pesticide use. As discussed, the facilitation IPM, as an
alternative to pesticides, or as a way to reduce pesticide use, is a critical but overlooked part of
international pesticide regulation. Not only does the Pesticide Code promote alternatives to
pesticides but it also seeks to facilitate alternatives in a manner consistent with a RBA.
Accordingly, the Pesticide Code reflects criterion 4 regarding the need for international
instruments to foster an enabling environment for agroecology, and criterion 3 on the
incorporation of human rights principles.

8.3.3.1 Provisions for pesticide industry and traders

The Pesticide Code has provisions that apply to different parts of the supply chain from the
manufacturing of pesticides through to their disposal.1338 The code’s guiding principle for supply
chain management is ‘product stewardship’, which means ‘[t]he responsible and ethical
management of a pesticide product from its discovery through to its ultimate use and
beyond’.1339 Accordingly, the pesticide industry and traders1340 are encouraged to retain an active

1335
Ibid art 1.7.6.
1336
Pesticide Code art 3.8.-3.9. For other provisions related to IPM see arts 5.1.7, 9.1.1, 9.4.1., 11.2.8.
1337
This was discussed in part 2, section II(b) of this chapter.
1338
Pesticide Code art 2. This is described as a ‘life cycle’ approach.
1339
Ibid.

Chapter 8: Pesticides 325

interest in following their products to through the entire product life-cycle, keeping track of
major uses and the occurrence of any problems.1341 Other practices that the pesticide industry
and traders ‘should observe’ according to the code include only supplying pesticides if they are
of an adequate standard and are packaged and labelled as appropriate for the specific market.1342

Evidently, the Pesticide Code is attempting to expand corporate accountability through its
‘product stewardship’ provisions. But the way in which the guidelines are drafted reinforce the
non-binding nature of the Pesticide Code, and thus the instrument seems to expand the
obligations of corporations but is actually limited in terms of legal legitimacy and accountability
mechanisms. Instead, a RBA to FS would be better progressed if the Pesticide Code incorporated
the Guiding Principles on Business and Human Rights.1343 Such an approach would be more
consistent with human rights, including criterion 1 of a RBA to FS, and could be more influential
given the legal and moral legitimacy underpinning this framework.

The code places additional burdens on pesticide manufacturers. For instance, the code
recommends that pesticide manufacturers:

 Avoid exporting pesticides whose handling and application require the use of personal
protective equipment that is uncomfortable, expensive or not readily available,
especially in the case of small scale users and farm workers in hot climates;1344

 Recognise that a pesticide may need to be recalled by a manufacturer and distributor

when its use, as recommended, represents an unacceptable risk to human and animal
health or the environment.1345

1340
‘Pesticide Industry’ is the term used throughout the Pesticide Code. However, it is not defined. Under the ‘life
cycle approach’ being adopted in the code, the ‘Pesticide Industry’ seemingly refers to private entities involved in
the manufacture, formulation, packaging, distribution, storage, transport, use and final disposal of pesticides. The
code does provide a definition of a ‘manufacturer’ in Article 2 as ‘a corporation or other entity in the public or
private sector (including an individual) engaged in the business or function (whether directly or through an agent or
entity controlled by or under contract with it) of manufacturing a pesticide active ingredient or preparing the
formulation of the product’.
1341
Pesticide Code art 3.4.6.
1342
Ibid arts 3.5.1, 3.5.4.
1343
Human rights and transnational corporations and other business enterprises, UNHRC Res 17/4, 17th sess,
Agenda item 3, UN DOC A/HRC/RES/17/4 (16 July 2011) (Guiding Principles on Business and Human Rights).
1344
Pesticide Code art 3.5.
1345
Ibid art 8.2.5

326 Chapter 8: Pesticides

 The acknowledgment of a potential need to recall a product or to place limits on exports is
the closest the Pesticide Code comes to prohibiting certain pesticides and restricting the transfer
of pesticides between jurisdictions.1346 Such recalls and limits are required in order to protect
against human rights violations. Placing some of the responsibility on pesticide manufactures
appears to be an effective response to the issues that result from the lack of regulatory capacity in
importing developing countries. Pesticide manufactures arguably have access to information that
may otherwise be confidential and they have the relevant expertise and resources to make
assessments of risk. However, there are no mechanisms to hold pesticide companies accountable
to breaches of these provisions, and the temptation on the side of pesticide companies to not
follow the code would be high given the financial costs involved in recalling a product or
otherwise limiting its exportation.

In addition to avoiding the exportation of some pesticides and recalling others, the
Pesticide Code advises the pesticide industry to ‘[e]nsure that pesticides manufactured for export
are subject to the same quality requirements and standards as those applied to comparable
domestic products’.1347 This provision is even expanded to parent companies, which is a
challenge to the deeply embedded legal doctrine of ‘limited liability’ that allows a parent
company to avoid the being liable for the actions of its subsidiary companies. The Pesticide
Code states that the pesticide industry should:

…ensure that pesticides manufactured or formulated by a subsidiary company meet

appropriate quality requirements and standards. These should be consistent with the
requirements of the host country and of the parent company.1348

In other words, if a transnational corporation based in the US has a subsidiary in a

developing country then the pesticides formulated in the developing company must meet both
the requirements of the country it is manufacturing the pesticide in, as well as the US regulations.
This is a novel approach to addressing issues where the parent company escapes accountability

1346
Pesticide Code art 8.2.5
1347
Ibid art 8.2.2
1348
Pesticide Code art 8.2.3.

Chapter 8: Pesticides 327

over the actions of a subsidiary by claiming to be unaware of the subsidiaries business-related
human rights breaches.1349

8.3.3.2 Provisions for Pesticide- Exporting Countries

Governments of pesticide-exporting countries are advised to ensure ‘good trading
practices’.1350 ‘Good trading practices’ are not explicitly listed but, based on general provisions
in the Pesticide Code, are likely to include the following:

 Assisting importing developing countries in their ability to assess and evaluate the
risks and hazards of pesticides and in training personal and carrying out risk
assessments;1351

 Collecting and recording data on the flow of imports and exports, the kinds of
pesticides (quality, purpose, etc), and the effects on health of humans and the
environment.1352

 Collaborating with the pesticide companies to survey and monitor the fate of
pesticides.1353

These practices do not place a heavy burden on developed states, and a RBA to FS would
arguably need exporting states to have a higher level of responsibility by virtue of their
extraterritorial human rights obligations. Such responsibility is arguably triggered by the
knowledge exporting states have regarding the hazards and the difficulties of ensuring safe
pesticide use in developing countries, as well as their ability to restrict or prevent exports.1354 In
fact, the guidance provided by the Pesticide Code to the pesticide industry is more onerous than
the guidance it provides to exporting states. For instance, there is no requirement that a state
ensure all pesticides exported meet its own domestic standards. Explicitly recognising the

1349
To expand on this point, parent companies obtain benefits from subsidiaries and can have a large degree of
control over their activities depending on their corporate structure. For more information, see eg, Gwynne Skinner,
‘Parent Company Accountability: Ensuring Justice for Human Rights Violations’ (The International Corporate
Accountability Roundtable, September 2015) <http://icar.ngo/wp-content/uploads/2015/06/ICAR-Parent-Company-
Accountability-Project-Report.pdf>.
1350
Pesticide Code art 3.4.
1351
Ibid art 4.4.
1352
Pesticide Code arts 6.1.10, 6.1.11, 6.1.14.
1353
Ibid art 4.5.
1354
Maastricht Principles on the Extraterritorial Obligations of States principle 11.

328 Chapter 8: Pesticides

extraterritorial human rights responsibilities of exporting states in relation to pesticides would
have provided these provisions with more legitimacy and enforceability.

8.3.3.3 State-level Technical Standards

The Pesticide Code reaffirms the role of states in regulating pesticide availability,
distribution and use within their jurisdiction. In relation to pesticide technical requirements,
governments are advised to introduce governance framework that encompasses a registration
scheme for evaluating the safety of pesticides before they enter the market. When designing the
governance framework for pesticide use, governments are advised to take into account local
needs (eg levels of literacy).1355 Nevertheless, a difficulty that a government may experience is
setting technical standards that transfer to local, everyday contexts as opposed to the uniform
standards used in the Pesticide Code. In these situations, participatory approaches should be used
to develop effective regulation for mitigating pesticide-related harm.

8.3.3.4 Implementation and Impact

The voluntary nature of the Pesticide Code allowed for a comprehensive instrument
covering a wide range of activities and actors. Arguably, the provisions on promoting IPM would
be controversial if the Pesticide Code were binding, as such an approach to pests challenges the
status quo in conventional farming and the market share of corporations. While the
political/ideological and sovereignty-related restrictions that international agreements face was
overcome in the non-binding Pesticide Code, it comes at the cost of a more legally persuasive,
binding agreement.

The weak influence of the Pesticide Code can be inferred by reports of the continued poor
regulatory standards for pesticide use and distribution in developing and developed countries,
and the documented increases in pesticide-related health and environmental issues.1356 When the

1355
Pesticide Code arts 6.1.1., 6.1.12.
1356
A Mahdavi, ‘Problems of Pesticide/chemical Regulations in Developing Countries’ (2010) 196, Supplement
Toxicology Letters S93 where the author researched regulations in developing countries, particularly in Middle
Eastern and African countries. They found that ‘Reading the labels before use rarely happens due to lack of ability
for reading. In most of these developing countries there is absolutely no enforcement power (if there is a written
regulations at all) and no licensing procedure for agricultural worker protection and these workers do their spraying
with any type of equipment that they can find with no protecting clothing.’; Pepijn Schreinemachers and Prasnee
Tipraqsa, ‘Agricultural Pesticides and Land Use Intensification in High, Middle and Low Income Countries’ (2012)

Chapter 8: Pesticides 329

FAO sent a questionnaire to 66 pesticide regulators mostly from Africa and Latin America, they
found that awareness and use of the Pesticide Code was low, with only 27 per cent of
respondents reporting that they knew of the code and had actually read it.1357 Subsequently, the
following comment by Konradsen et al in 2003 still rings true:

…in spite of increasing support to improve the capacity of national agencies since mid-
1980s, policing of the Code is still so severely hampered by the lack of resources and
political will that there is as yet no effective mechanism to enforce it or publicise
violations. 1358

A range of empirical studies illustrate this point. In Punjab, Pakistan, 23 per cent of the
pesticides used were classified as ‘highly hazardous’, 55 per cent of pesticides used were
‘moderately dangerous’ and the over-use of pesticides was common.1359 The researchers
suggested that the type and application of pesticides in Punjab was driven by a lack of farmers’
knowledge about pesticide toxicity and IPM. This suggests a failure by the pesticide industry to
ensure the appropriate labelling of pesticides and a failure by the government to regulate
pesticide use.

Similar problems exist in Cambodia, with one study finding that farmers near the Boeung
Cheung Ek Lake, for instance, mixed together four to six kinds of pesticides to make stronger
pesticides. Meanwhile, these farmers also lacked safety equipment (eg most did not wear gloves
or boots) and 88 per cent of these farmers had experienced acute pesticide poisoning.1360

37 Food Policy 616, 623 The intensity of agricultural pesticide use was analysed for 119 countries based on data
from the FAO. The authors concluded that ‘Pesticide use has intensified. Only a few countries have managed to
decrease their usage intensity as decreases in insecticide use have been largely offset by increases in herbicide and
fungicide/bactericide use. There is no clear evidence that high income countries as a group are reducing their
pesticide use at this time. A number of upper and lower middle income countries are experiencing very rapid growth
in their pesticide use levels, while their use of broad spectrum insecticides is also relatively high’.
1357
‘5th FAO/WHO Joint Meeting on Pesticide Management and 7th Session of the FAO Panel of Experts on
Pesticide Management’ (Report, World Health Organization; Food and Agriculture Organization, 11-14 October
2011) 18
<http://www.fao.org/fileadmin/templates/agphome/documents/Pests_Pesticides/Code/JMPM_2011_Report.pdf>.
1358
Flemming Konradsen et al, ‘Reducing Acute Poisoning in Developing Countries—options for Restricting the
Availability of Pesticides’ (2003) 192 Toxicology 249, 252.
1359
Muhammad Khan, Hafiz Zahid Mahmood and Christos A Damalas, ‘Pesticide Use and Risk Perceptions among
Farmers in the Cotton Belt of Punjab, Pakistan’ (2015) 67 Crop Protection 184, 188.
1360
Hanne Klith Jensen et al, ‘Pesticide Use and Self-Reported Symptoms of Acute Pesticide Poisoning among
Aquatic Farmers in Phnom Penh, Cambodia’ (2010) 2011 Journal of Toxicology e639814.

330 Chapter 8: Pesticides

 Another study in Tanzania examined six distributors through questionaries and physical
inspections of each premises by researchers. The researchers found most retailers sold highly and
moderately hazardous pesticides, 52 per cent of staff were found to be semi-trained, 25 per cent
repacked pesticides into smaller unlabelled containers, 38.6 per cent lacked first-aid kits and 9.3
per cent were found to be distributing unregistered products.1361 Among the various violations of
the Pesticide Code evident in this case study, it is clear that the relevant members of the pesticide
industry have not followed provisions relating to the adequate training of persons involved in the
sale of pesticides.1362 Comparable findings were made in a study conducted in a different region
in Tanzania. This study involved gathering questionnaires and documentation of storage
practices from 121 head-of-household respondents in the Arumeru district. Most (79 per cent) of
the farmers questioned reported storing pesticides in the home. The majority (93 per cent) of the
farmers reported experiencing pesticide poisoning in the past and most (79 per cent) did not go to
hospital.1363

Taken together, these studies illustrate a substantial failure by resourced members of the
pesticide industry and states to follow the Pesticide Code. While there are failures by states to
regulate pesticides appropriately within their own jurisdiction, this could be explained in part by
a lack of resources and institutional capacity in the case of developing countries.1364 Meanwhile,
the largest exporters (in monetary terms) of pesticides are developed and middle-income
countries.1365 Correspondingly, the pesticide companies with the biggest market share (ranging
from 9 per cent to 20 per cent of the market) are based in Germany, Switzerland and the US.1366
Under a RBA to FS, the burden of reducing pesticide harms would be heavier on these exporting

1361
Elikana E Lekei, Aiwerasia V Ngowi and Leslie London, ‘Pesticide Retailers’ Knowledge and Handling
Practices in Selected Towns of Tanzania’ (2014) 13 Environmental Health 79.
1362
Pesticide Code art 8.2.7.
1363
Elikana E Lekei, Aiwerasia V Ngowi and Leslie London, ‘Farmers’ Knowledge, Practices and Injuries
Associated with Pesticide Exposure in Rural Farming Villages in Tanzania’ (2014) 14 BMC Public Health 389.
1364
Note though that the pesticide regulation in developed countries has also been considered inadequate for the
purposes of protecting human and environmental health. See, eg, Boone et al, above n 197; Parker, above n 1187.
1365
These countries are France, Germany, United States, China and Belgium – closely followed by India. See,
Daniel Workman, Top Pesticides Exporters (10 July 2015) World’s Top Exports
<http://www.worldstopexports.com/top-pesticides-exporters/5160>.
1366
‘Who Owns Nature? Corporate Power and the Final Frontier in the Commodification of Life’ (100, ETC Group,
November 2008) 15
<http://www.etcgroup.org/sites/www.etcgroup.org/files/publication/707/01/etc_won_report_final_color.pdf>.

Chapter 8: Pesticides 331

countries and companies.1367 Yet, even if the Pesticide Code appropriately shifted some of the
responsibility for avoiding pesticide-related harm, its lack of legal legitimacy would prevent the
instrument from having significant influence on state and corporate behaviour, at least in the
short-term.

While the Pesticide Code could be used as a basis for a more legally binding agreement,
states that are large exporters of pesticides are unlikely to sign up to an agreement that shifts the
burden of reducing pesticide harm in other countries onto them. In addition, any binding
international pesticide agreement could not currently apply to corporations.1368 Accordingly,
improvement of the international (and domestic) regulation of pesticides will require pressure
from social movements aimed at state and corporate actors. Furthermore, improved international
regulation of corporate actors will be necessary given the large amount of control that corporate
actors exercise in the manufacture and international distribution of pesticides.

National examples can provide models for future international regulatory developments.
For instance, France released an action plan, entitled Ecophyto in 2009 to halve its pesticide use
by 2025.1369 To date, the plan has involved extensive training of farmers on IPM, including
through field schools and in formal agricultural training institutions, as well as increased funding
for research into IPM.1370 A number of incentives are in place to promote IPM and reduced
pesticide use, such as improved market access for farmers using IPM. Other policy measures that

1367
This argument is based on equity, as well as the extraterritorial obligations of states in relation to the export of
pesticides. See, Beth Gammie, ‘Human Rights Implications of the Export of Banned Pesticides’ (1994) 25 Seton
Hall Law Review 558. It also has support from the environmental justice movement and literature. See, in particular,
Harrison, above n 1210; See generally, Gordon Walker, Environmental Justice: Concepts, Evidence and Politics
(Routledge, 2012).
1368
As explained in Chapter 3, corporations cannot owe human rights obligations as they do not have international
legal personality. Another barrier to corporations being held accountable is the legal doctrine of limited
accountability, which was discussed in relation to the provisions on parent companies in the Pesticide Code.
1369
Originally, the target was to halve pesticide use by 2018, but assessments showed that this target was
unobtainable. As a result, the Ecophyto’s target has been increased and measures to support it. ‘Ecophyto 2 : - 50 %
de Pesticides Reporté à 2025!’ <http://www.natura-sciences.com/agriculture/ecophyto-2-pesticides-818.html>. Note
that Denmark also has an interesting approach See, eg, Palle Kristoffersen et al, ‘Factors Affecting the Phase-out of
Pesticide Use in Public Areas in Denmark’ (2004) 60 Pest Management Science 605 where the authors identified
political will as the main factor leading to a reduction of pesticide use by public entities in Denmark. In fact,
pesticide use was reduced by 85 per cent from 1995 levels to 2004.
1370
Les Chambres d’agriculture, Ecophyto (19 January 2016) <http://www.chambres-agriculture.fr/agriculteur-et-
politiques/ecophyto/>.

332 Chapter 8: Pesticides

have been considered include taxing companies and farmers for the environmental impact of the
agrochemicals they manufacture or use.1371

For international regulation, France’s model and the lessons their government has learned
in the process are useful. For instance, an international instrument on pesticide use could set
international targets for the reduction of pesticide use, create incentives for farmers using IPM
instead of pesticides (eg improved market access to overseas markets) and mobilise resources to
facilitate IPM, especially in developing countries.

8.3.4 International Chemical Law Regime

The International Chemical Regime is a group of three, coordinated international
conventions (and a range of policy documents) that are designed to balance the risks and benefits
associated with trade in and use of chemicals.1372 The regime is primarily made up of the:

1. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes

and their Disposal (Basel Convention)1373

2. Rotterdam Convention on the Prior Informed Consent Procedure for Certain

Hazardous Chemicals and Pesticides in International Trade (Rotterdam
Convention)1374

3. Stockholm Convention on Persistent Organic Pollutants (Stockholm Convention)1375

1371
For a summary of France’s Ecophyto plan and the lead up to its adoption, see Meriel Watts and Stephanie
Williamson, ‘Replacing Chemicals with Biology: Phasing out Highly Hazardous Pesticides with Agroecology’
(Pesticide Action Network International, 2015) 154–161 <http://www.panap.net/sites/default/files/Phasing-Out-
HHPs-with-Agroecology.pdf>.
1372
A range of strategies are in place to ensure harmonised implementation and the administrative bodies for the
conventions are located in Geneva in order to promote coordination. See, eg, Franz Perrez, ‘Building an Effective
Future-Proof International Chemicals and Waste Regime - Chemicals and Wastes Policy & Practice’
<http://chemicals-l.iisd.org/guest-articles/building-an-effective-future-proof-international-chemicals-and-waste-
regime/>.
1373
Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal,
adopted 22 March 1989, 1673 UNTS 126 (entered into force 05 May 1992).
1374
Rotterdam Convention on Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides
in International Trade, adopted 10 September 1998, 2244 UNTS 337 (entered into force 24 February 2004)
(Rotterdam Convention).
1375
Stockholm Convention on Persistent Organic Pollutants, adopted 22 May 2001, 2256 UNTS 119 (entered into
force 17 May 2004) (Stockholm Convention).

Chapter 8: Pesticides 333

 The Basel Convention concerns the movement and disposal of hazardous waste, and so
while relevant to pesticides, it is not directly relevant to agriculture. The following focusses on
the Rotterdam and the Stockholm Convention, as they are the most relevant to the on-farm use of
pesticides.

8.3.4.1 The Rotterdam Convention

The Rotterdam Convention concerns information sharing in and procedures for the
transporting of hazardous chemicals, including pesticides, to protect human and environmental
health.1376 Thus, it is broadly consistent with criterion 3 of a RBA to FS as it improves
transparency in pesticide distribution. It has two key mechanisms.

The first is export notifications. Parties are required to use export notifications that contain
certain information (eg the hazards involved and suggested precautionary measures) when
exporting a chemical that is banned or severely restricted in its own jurisdiction.1377 The effect is
that where a developed state has banned or restricted a pesticide within its own jurisdiction then
an importing state will be informed of this, and can hopefully respond accordingly to mitigate or
prevent pesticide-related harms.

The second mechanism that the Rotterdam Convention has is the prior informed consent
(PIC) procedure that applies to any pesticide listed in Annex III (regardless of whether the
destination country is a member of the convention).1378 Where a chemical is listened under

1376
Rotterdam Convention art 1 where the convention’s objective is outlined. It aims to ‘promote shared
responsibility and cooperative efforts among Parties in the international trade of certain hazardous chemicals in
order to protect human health and the environment’ and to ‘contribute to the environmentally sound use’ of those
hazardous chemicals.
1377
Rotterdam Convention art 5. A party exporting a chemical that is banned or severely restricted in their own
jurisdiction must first notify the importing state. This notification must have certain information such as
precautionary measures that can be taken to reduce exposure and mitigate harms of the chemical. ‘Banned’ means ‘a
chemical all uses of which within one or more categories have been prohibited by final regulatory action, in order to
protect human health or the environment. It includes a chemical that has been refused approval for first-time use or
has been withdrawn by industry either from the domestic market or from further consideration in the domestic
approval process and where there is clear evidence that such action has been taken in order to protect human health
or the environment’ see art 2(b) of the Rotterdam Convention. ‘Severely Restricted’ means ‘a chemical virtually all
use of which within one or more categories has been prohibited by final regulatory action in order to protect human
health or the environment, but for which certain specific uses remain allowed. It includes a chemical that has, for
virtually all use, been refused for approval or been withdrawn by industry either from the domestic market or from
further consideration in the domestic approval process, and where there is clear evidence that such action has been
taken in order to protect human health or the environment’ see art 2(c) of the Rotterdam Convention.
1378
Rotterdam Convention art 5(6). After following a particular procedure involving evidence gathering and
evaluation, the Conference of Parties decides if a chemical that is banned or restricted in one party’s jurisdiction

334 Chapter 8: Pesticides

Annex III, a state importing the chemical must decide whether to consent to the import, prohibit
the import, or consent but with particular conditions.1379 The decision of the importing state is
provided to the convention’s secretariat that then informs all of the parties of the responses it has
received. A party exporting a chemical under Annex III must let the Secretariat know of its
intention to continue exporting the chemical, and must advise and assist importing parties to
strengthen their capacity to safely manage the chemical.1380 Additionally, the party seeking to
export an Annex III chemical cannot do so unless the:

 Importing party has declared or acted in a way that suggests it accepts such imports;
and

 Exporting party has received explicit consent to the import by the national authority of
the importing state.1381

Subsequently, the PIC is a critical procedure for developing countries as it allows them to
prevent and control the importation of particular chemicals regardless of whether they have the
regulatory capacity to restrict use domestically. The development of the PIC procedure is seen as
a middle ground between two extremes: an outright banning of trade in highly hazardous
pesticides or leaving it to the free market and the discretion of farmers.1382

The Rotterdam Convention is somewhat compatible with a RBA to FS. The convention
gives countries, particularly those without the capacity to effectively prohibit a pesticide, the
ability to limit hazardous chemicals, and so prevent harm to human and environmental health.
Countries with fewer resources are provided with information that they otherwise may not have
regarding a chemical and they can exercise more discretion in relation to the importation of
particular pesticides. Subsequently, the Rotterdam Convention can have an empowering effect
(criterion 3) and improve the ability of states to protect the human rights owed to citizens
(criterion 1). As Jansen and Dubois explained ‘The Convention is making small contributions to

should be added to Annex III. Once added to Annex III, the state party exporting the Annex III chemical must first
act in accordance with the PIC procedure regardless of whether the importing state is a party to the convention.
1379
Ibid art 10(4).
1380
Rotterdam Convention art 11(1).
1381
Ibid art 11(2)
1382
Aarti Gupta, ‘Transparency as Contested Political Terrain: Who Knows What about the Global GMO Trade and
Why Does It Matter?’ (2010) 10 Global Environmental Politics 32, 33.

Chapter 8: Pesticides 335

improving the risk infrastructure of developing countries and has improved access to information
about regulatory decisions and supporting scientific evidence’.1383

The strengths of the Rotterdam Convention can also be weaknesses. The Rotterdam
Convention lacks a clear mechanism to support developing countries in the improvement of their
own regulatory and institutional systems to evaluate pesticides.1384 Additionally, it cannot be
assumed that access to information will necessarily improve state governance over pesticides.1385
In Vietnam, for instance, the main causes for the improper use of pesticides and pesticide-related
environmental and health problems are thought to be: ‘state failure in pesticide market
regulation, large corruption, information distortion and a failing legal system’.1386 Thus, the
Rotterdam Convention probably places too much dependence on some developing states to
effectively handle such export notifications.1387

Debatably, a RBA to FS requires a complete prohibition on all exports of highly hazardous

pesticides for use in agriculture where that pesticide is banned within the exporting state’s
jurisdiction.1388 Such an argument is based on the extraterritorial application of human rights and
the need to provide special protections and support for vulnerable groups. 1389

8.3.4.2 Stockholm Convention

Some commonly used pesticides are categorised as ‘Persistent Organic Pollutants’ (POPs).
Essentially, POPs are a group of synthetic toxic chemicals that are persistent both in how far they

1383
Kees Jansen and Milou Dubois, ‘Global Pesticide Governance by Disclosure: Prior Informed Consent and the
Rotterdam Convention’ in Aarti Gupta and Michael Mason (eds), Transparency in Global Environmental
Governance: Critical Perspectives (The MIT Press, 2014) 107, 120
<http://mitpress.universitypressscholarship.com/view/10.7551/mitpress/9780262027410.001.0001/upso-
9780262027410>.
1384
Ibid 108 explained ‘…information about…pesticide risks cannot be seen as a neutral force that will solve
normative or political conflicts. Nor will access to information necessarily change power relations and improve the
position of developing countries’.
1385
There is a fairly large body of literature critically examining ‘transparency’. See, for instance, Ronald B
Mitchell, ‘Transparency for Governance: The Mechanisms and Effectiveness of Disclosure-Based and Education-
Based Transparency Policies’ (2011) 70 Ecological Economics 1882.
1386
Pham Van Hoi, Arthur Mol and Peter Oosterveer, ‘State Governance of Pesticide Use and Trade in Vietnam’
(2013) 67 NJAS - Wageningen Journal of Life Sciences 19.
1387
See, eg, Aiwerasia VF Ngowi, Catharina Wesseling and Leslie London, ‘Developing Countries: Pesticide Health
Impacts’ in Encyclopedia of Environmental Management (Taylor & Francis, 2013) 573
<http://www.tandfonline.com/doi/abs/10.1081/E-EEM-120046235>.
1388
There may need to be a balancing approach or exception if a highly hazardous chemical is required for malaria
control.
1389
Discussed in Chapter 3.

336 Chapter 8: Pesticides

can spread across the globe once released and how long they can exist.1390 Although all
pesticides are toxic, pesticides that are POPs are considered particularly detrimental due to their
ability to travel long-distances and accumulate and concentrate within human and non-human
animal bodies.

It is important to note that, regardless of whether a pesticide is persistent, pesticides will

still have highly detrimental effects on human and environmental health. Nebel and Wright
explained that non-POP pesticides are often more toxic, frequently applied, still damaging to
biodiversity and pollinating insects like bees, and are just as likely to cause pest resistance and
secondary pest outbreaks.1391

The Stockholm Convention concerns POPs and is a significant environmental agreement

with 176 parties.1392 Notably, the Stockholm Convention does not define POPs, and instead
provides lists of specific chemicals in Annexes A-C. Similar to the Rotterdam Convention then,
the Stockholm Convention does not apply to all pesticides, but it has the flexibility, like the
Rotterdam Convention, to add chemicals as more evidence becomes available. Most of the POPs
that the Stockholm Convention regulates are pesticides and a few are industrial chemicals.1393

Article 3 outlines parties’ obligations to reduce or eliminate the production and use of
POPs. The way in which a POP is categorised determines the level of regulatory responses that
parties must take. A pesticide can be categorised under Annex A, B or C in the convention, but
pesticides are likely to be categorised under Annex A or B.1394 If a pesticide is categorised under
Annex A, then Article 3 applies and it requires that parties to prohibit or take the necessary
measures to eliminate the production and use of the pesticide. This includes eliminating the
import and exports of the pesticide, except where it is imported for the purposes of appropriate

1390
Persistent Organic Pollutants (2015) United Nations Environment Program
<http://www.unep.org/chemicalsandwaste/POPsandScience/tabid/1059787/Default.aspx>.
1391
Bernard J Nebel and Richard T Wright, Environmental Science: The Way the World Works (Prentice Hall
Professional, 1993) 223.
1392
Status of Ratification (2014) Stockholm Convention
<http://unfccc.int/kyoto_protocol/status_of_ratification/items/2613.php>.
1393
Peter L Lallas, ‘The Stockholm Convention on Persistent Organic Pollutants’ (2001) 95 The American Journal
of International Law 692, 698.
1394
Annex C relates to the unintentional production of POPs (eg pollution from industries).

Chapter 8: Pesticides 337

disposal.1395 Currently, 17 chemicals are listed in Annex A, and of these 13 are primarily used as
pesticides.1396

If a pesticide is categorised under Annex B, then parties are required to restrict its
production and application to particular uses.1397 Interestingly, Annex B includes the well-known
insecticide ‘DDT’, which was used worldwide until the 1970s when it was banned in developed
countries due to health and environmental concerns.1398 However, DDT is still exported from
some developed countries like the USA,1399 and it is still used in approximately 17 developing
countries that are party to the Stockholm Convention (thus, potentially more countries use DDT
that are not party to the convention).1400 While some DDT is used for malaria control, the vast
majority of DDT manufactured is used as a pesticide.1401 As a result of the difficulties
developing countries face when eliminating DDT, the Stockholm Convention requires DDT using
countries to create an action plan that encompasses alternatives and regulatory measures for the
control of DDT.1402

The Stockholm Convention has been relatively successful at working towards its
objectives.1403 Data illustrates that POP concentrations are decreasing in both the environment
and in humans.1404 To be more closely aligned to a RBA to FS, the Stockholm Convention would

1395
Stockholm Convention art 3(2)(a)(i)-(ii).
1396
These are: Aldrin, Alpha-Hexachlorocyclohexane,Beta hexachlorocyclohexane, Chlordane, Chlordecone,
Dieldrin, Endrin, Heptachlor, Hexachlorobenzene, Lindane, Mirex, Pentachlorobenzene and Toxaphene. See Annex
A of the Stockholm Convention.
1397
Stockholm Convention art 3(1)(b).
“Restrict” is not defined in the text, but Annex B restricts the chemicals listed to particular uses.
1398
For an overview of the debate and evidence, see eg, David Kinkela, DDT and the American Century: Global
Health, Environmental Politics, and the Pesticide That Changed the World (Univ of North Carolina Press, 2011)
157; CF Curtis and JD Lines, ‘Should DDT Be Banned by International Treaty?’ (2000) 16 Parasitology Today 119.
1399
‘DDT’ (Technical Fact Sheet, National Pesticide Information Center, 2000) 6, 2–3
<http://npic.orst.edu/factsheets/ddttech.pdf>.
1400
These countries are: Botswana, Eritrea, Ethiopia, India, Madagascar, Marshall Islands, Mauritius, Morocco,
Mozambique, Namibia, Senegal, South Africa, Swaziland, Uganda, Venezuela, Yemen and Zambi. Based on the
DDT Register. See, DDT Register Pursuant to Paragraph 1 of Part II of Annex B of the Stockholm Convention
Stockholm Convention <http://chm.pops.int/Implementation/Exemptions/AcceptablePurposesDDT/tabid/456/>.
1401
Henk van den Berg, ‘Global Status of DDT and Its Alternatives for Use in Vector Control to Prevent Disease’
(2009) 117 Environmental Health Perspectives 1656, 1657.
1402
Stockholm Convention Annex B, Part II, para 5.
1403
For evidence of this, see Success Stories Stockholm Convention 2001-2011, UN Doc UNEP/SC/2012/I (July
2012).
1404
Ibid 12-13. See also, Johan Fång et al, ‘Spatial and Temporal Trends of the Stockholm Convention POPs in
Mothers’ Milk — a Global Review’ (2015) 22 Environmental Science and Pollution Research 8989 where
reductions in POPs in mothers’ milk were found; Miquel Porta et al, ‘Distribution of Blood Concentrations of

338 Chapter 8: Pesticides

need to facilitate and promote the uptake of IPM as an alternative to POPs (criterion 4). Instead,
as discussed, farmers have tended to swap to more toxic, albeit less persistent, varieties of
pesticides.

8.4 CONCLUSION

In line with criterion 1 and 4, a RBA to FS in the context of pesticide regulation prioritises
the protection of human health and the natural resources used in food production and requires the
facilitation of IPM. Most of the instruments examined sought to protect human health and the
environment, but only the Pesticide Code had provisions pertaining to IPM.

MRLs are in a strategic position to promote a RBA to FS, but the process behind
formulating MRLs needs to be more precautionary, participatory and focused on human health.
The Pesticide Code is a significant contribution to international regulation that better aligns with
a RBA to FS. However, its implementation has been limited. The relevant international labour
conventions are critical for setting basic standards that could improve domestic regulatory
arrangements. In order to work towards meeting these standards, bottom-up approaches,
including school feeding programs and the provision of safety equipment, should be pursued.
Other agreements, such as the Rotterdam Convention and the Stockholm Convention provide
important avenues for developing countries to determine and prevent hazards related to
pesticides. Yet these agreements are limited to particular pesticides, the political will of
developed countries (particularly the EU and the US) and the regulatory capacity of developing
countries.

Based on these findings, a new international instrument is required that addresses the
limitations of the current framework. Although it is beyond the scope of this research to

Persistent Organic Pollutants in a Representative Sample of the Population of Barcelona in 2006, and Comparison
with Levels in 2002’ (2012) 423 Science of The Total Environment 151. Largely, it is thought that the Stockholm
Convention could be improved through scientific advancements eg improved monitoring tools. See, eg, Gerhard
Lammel and Rainer Lohmann, ‘Identifying the Research Needs in the Global Assessment of Toxic Compounds 10
Years after the Signature of the Stockholm Convention’ (2012) 19 Journal of Environmental Science and Pollution
Research 1873 where they summarised the findings of an expert meeting at the Regional Centre of the Stockholm
Convention where the experts (50 scientists from 16 countries) discussed how the Stockholm Convention has
progressed and areas that need improvement. Other ways in which implementation could be improved is through
institutional capacity building in developing countries (eg sharing information with developing countries regarding
how to reduce POPs and relevant scientific advancements).

Chapter 8: Pesticides 339

extensively examine the form this instrument should take for a RBA to FS, there are domestic
models that could be replicated and scaled up to the international level. For instance, France’s
Ecophyotate, discussed in section 8.3.3.4 of this chapter, may provide a basis for an international
instrument on the reduction of pesticide use. Specifically, an international agreement could set
targets for the reduction of pesticide use worldwide and create incentives for the uptake of IPM.
Social activism and scientific research on IPM and pesticides will continue to have a critical role
in increasing political will to reduce pesticide use and promote alternatives.

340 Chapter 8: Pesticides

 Trade

9.1 OVERVIEW

A thesis regarding the international regulation of agriculture for food security would not be
complete without an analysis of agricultural trade law. International agricultural trade law affects
how and where agriculture is carried out; it also influences the methods used to produce food, the
income of farmers and the types of regulatory measures states can take to pursue a RBA to FS.
For this reason, agricultural trade law is the focus of this chapter. In doing so, this chapter breaks
from previous chapters by examining an external driver of agriculture and food security rather
than an on-farm resource. Furthermore, an examination of agricultural trade begins to blur the
artificial distinction made in this thesis between agriculture and other food system activities such
as distribution. Put simply, the previous chapters focused on production, whereas this chapter
centres on production and distribution.

The first part of this chapter briefly explains the rationale for and background to world
trade law and its relationships with a RBA to FS. It then analyses the WTO’s Agreement on
Agriculture (AoA), which is the principle agreement in regards to agriculture and food security.
This section finds that the AoA has overall not contributed to a RBA to FS, as it has not
substantially or fairly liberalised agricultural trade, nor has it adequately protected against the
negative impacts of trade liberalisation on food security. The last part examines broader issues
relevant to the contributions that the AoA and agricultural trade liberalisation could make more
generally to a RBA to FS.

Chapter 9: Trade 341

9.2 AGRICULTURAL TRADE LIBERALISATION AND A RIGHTS-BASED
APPROACH TO FOOD SECURITY

9.2.1 Neoliberal Understandings of the Connection Between Agricultural Trade

Liberalisation and a Rights-Based Approach to Food Security
The Marrakesh Agreement Establishing the World Trade Organisation and its annexes
(WTO Agreement)1405 is a single treaty negotiated during the 1983 to 1986 Uruguay Round
negotiations between 15 different working groups.1406 This agreement fed into and drove
economic globalisation.1407 The WTO Agreement’s purpose is to liberalise trade using negotiated
reductions in barriers to trade. Yet, the preamble to the agreement reflects the notion that world
trade is not an end in and of itself. The preamble provides that trade and economic growth should
be conducted in a way that improves human life, while ‘[a]llowing for the optimal use of the
world's resources in accordance with the objective of sustainable development’.1408 As the
WTO’s preamble illustrates, the intention behind liberalising world trade is to improve human
life, both presently and in the future, such ultimate goal is compatible with human rights and
therefore criterion 1 of a RBA to FS.

The rationale for liberalised world trade is rooted in neoclassical economic theory,1409 and
particularly the work of 18th century economists, including Adam Smith and David Ricardo.1410
Specifically, the theory of ‘comparative advantage’ has formed the rationale for trade
liberalisation.1411 Essentially, comparative advantage assumes that no one economy can produce

1405
Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867
UNTS 3 (entered into force 1 January 1995) (WTO Agreement).
1406
For a summary of the history leading up to the creation of the WTO, see eg, Amrita Narlikar, Martin Daunton
and Robert M Stern, The Oxford Handbook on The World Trade Organization (Oxford University Press, 2012).
1407
For more information regarding the role of WTO in globalisation, see eg, ‘Measuring Globalisation: OECD
Handbook on Economic Globalisation Indicators’ (OECD, 2005)
<http://www.oecd-ilibrary.org.ezp01.library.qut.edu.au/economics/measuring-globalisation-oecd-handbook-on-
economic-globalisation-indicators-2005_9789264108103-en>.
1408
WTO Agreement Preamble para 1.
1409
For a general discussion on this, see eg, Shona Hawkes and Jagjit Kaur Plahe, ‘Worlds Apart: The WTO’s
Agreement on Agriculture and the Right to Food in Developing Countries’ (2013) 34 International Political Science
Review 21; Peter J Buckley and Pervez N Ghauri, The Internationalization of the Firm (Cengage Learning EMEA,
1999); Andrew B Bernard, Stephen J Redding and Peter K Schott, ‘Comparative Advantage and Heterogeneous
Firms’ (2007) 74 The Review of Economic Studies 31; Steven Brakman and Ben J Heijdra, The Monopolistic
Competition Revolution in Retrospect (Cambridge University Press, 2004).
1410
Jeffry A Frieden and David A Lake, International Political Economy: Perspectives on Global Power and
Wealth (Psychology Press, 2002).
1411
Andrew Mitchell and Jennifer Beard, International Law: In Principle (Lawbook Co, 1st ed, 2009).

342 Chapter 9: Trade

all the various types of commodities for the lowest opportunity cost.1412 Consequently, each
country should specialise in what it can produce at a lower opportunity costs than other
countries. In theory, this approach improves the wealth of all countries involved in trading
because it increases the diversity and amount of products that would otherwise be available if the
country was self-sufficient.1413 Subsequently, the reason trade liberalisation is thought to
improve human life is because more trade between countries promotes national economic
growth.1414

For food security, this economic growth, and its related components, such as increased
income levels, can improve economic access to food.1415 Furthermore, trade liberalisation can
offset shocks to domestic food production (eg a pest infestation) and reduce domestic food prices
(only where the food item was originally under a protectionist measure that had increased its
price).1416 Mendoza, the Deputy Director-General of the WTO, suggested that the gains from
trade liberalisation have ‘[a] positive impact on food security, both directly through better and
secure access to food supplies on global markets and indirectly through its contribution to
poverty alleviation’.1417

Neo-liberal theorists see the relationship between human rights, food security and trade
liberalisation as mutually supportive: trade liberalisation improves food security, while improved

1412
Dustin Mulvaney and Paul Robbins (eds), ‘Comparative Advantage’ 88.
1413
As an example, Australia and New Zealand both grow apples and make yogurt. If Australia did not trade with
New Zealand, then each country would consume domestically produced apples and yogurt. However, Australia is
only slightly more efficient than New Zealand at making yogurt, and significantly better at growing apples. In other
words, the cost of growing apples in Australia is much less than in New Zealand, but the cost of making a yogurt in
Australia is only slightly less than the costs of making yogurt in New Zealand. Therefore, if Australia puts more of
its resources into growing apples than it does making yogurt, and New Zealand puts more of its resources into
making yogurt, then between Australia and New Zealand more apples and yogurt will be made overall. The
countries can then trade, Australia selling its apples to New Zealand for New Zealand’s yogurt. Australia has the
comparative advantage in growing apples and New Zealand has the comparative advantage in making yogurt.
1414
Economic welfare encompasses, for example, employment levels and average income within a country.
Economic Welfare: Definition and Meaning Business Dictionary, WebFinance Inc.
<http://www.businessdictionary.com/definition/economic-welfare.html>.
1415
For an in-depth review of the relationship between trade liberalisation and food security, see ‘Trade Reforms and
Food Security: Conceptualizing the Linkages’, above n 67, 1.
1416
Mesfin Bezuneh and Zelealem Yiheyis, ‘Has Trade Liberalization Improved Food Availability in Developing
Countries? An Empirical Analysis’ (2009) 5–6.
<http://ageconsearch.umn.edu/bitstream/51136/2/Liberalization%20and%20Food%20Security%20Paper%20for%20
IAAE-%20China%202009%20Final.pdf>.
1417
Miguel Rodriguez Mendoza, World Trade Organisation, World Food Summit: Trade Liberalization and Food
Security (WTO News, 2002) introductory remarks.

Chapter 9: Trade 343

food security increases trade between countries.1418 From this point of view, trade restrictions
contribute to national and household food insecurity, or at least represent a lost opportunity to
improve food security. Trade restrictions can be either tariffs or non-tariff barriers. Tariffs are
taxes on imports. Non-tariff barriers include a wide array of domestic regulatory standards and
policies, including food safety requirements, government subsidies to exporters and import
quotas.

In the case of food, trade restrictions decrease the frequency and ease in which countries
trade food and increase the costs of imported foods. For instance, trade restrictions may make
domestically produced cheese cheaper to buy, even though another country can produce more
cheese using far less resources. Subsequently, the Former Director-General of the WTO, Pascal
Lamy, explained that the role of trade law is to limit trade restrictions to encourage ‘[a]n efficient
allocation of resources at the national level and to enhance purchasing power, fundamental to
food security, through GDP growth’.1419 In other words, trade makes countries more wealthy,
which trickles down to food insecure groups in the form of more opportunities for employment,
market access and government support.

9.2.2 Agricultural Trade Liberalisation from the Perspective of a Rights-Based Approach

to Food Security
In contrast to neoliberal perspectives, various social movements, including food
sovereignty,1420 as well as a large body of work, have critiqued the idea that trade liberalisation

1418
This point was reflected in Lamy’s viewpoint, a former WTO Director-General, that trade and human rights
were mutually supportive. See, Pascal Lamy (World Trade Organization, 2010)
<https://www.wto.org/english/news_e/sppl_e/sppl146_e.htm>. See also, Robert G Blanton and Shannon Lindsey
Blanton, ‘Human Rights and Trade: Beyond the “Spotlight”’ (2007) 33 International Interactions 97 where the
authors suggested that respecting human rights encourages trade.
1419
Pascal Lamy, Letter to Dr de Schutter (14 December 2011) World Trade Organization
<https://www.wto.org/english/news_e/news11_e/agcom_14dec11_e.htm>.
1420
Food Sovereignty, the powerful transnational social movement and conceptual tool discussed in Chapter 2, is
highly critical of trade liberalisation in food. In fact, resistance to trade liberalisation in agricultural commodities is a
fundamental part of its operation, along with the related goal of scaling up local food systems. In relation to
approaches to food security, food sovereignty would align most strongly with food self-sufficiency. As a result, it is
often assumed that the food sovereignty movement is against international trade. In fact, their stance on international
trade is that trade rules need to change, but that international trade must and should continue in specific situations,
such as where there is regional food insecurity or where certain foods can only be grown in particular locations. For
evidence of this perspective, see Peoples’ Food Sovereignty - WTO out of Agriculture (2 September 2003) La Via
Campesina: The International Peasants Movement <http://viacampesina.org/en/index.php/main-issues-mainmenu-
27/food-sovereignty-and-trade-mainmenu-38/396-peoples-food-sovereignty-wto-out-of-agriculture>.

344 Chapter 9: Trade

can promote food security or the realisation of associated human rights.1421 The terms ‘food self-
sufficiency’ and ‘food self-reliance’ encapsulate the contested views. Food self-sufficiency is an
approach to food security that supports increasing the extent to which domestically produced
foods fulfill domestic food needs. Therefore, food self-sufficiency is the antithesis of the
rationale for trade liberalisation. In contrast, food self-reliance is an approach to food security
that promotes reliance on food imports to the extent that some food imports provide a major
source of domestic food supply.1422 Currently, food self-reliance is widely supported by
international institutions; for instance, in 1983, the FAO changed the definition of food
availability to incorporate both domestically produced and imported food.1423

The effects of trade on food security are context-dependent and the methodologies used to
measure impact vary.1424 As a result, the large body of work examining the linkages between
trade liberalisation and food security has mixed findings and neither the literature nor other
commenters have reached consensus on the relationship between trade liberalisation and food
security.1425 Although this makes it impossible to generalise, this section will briefly analyse the
relevant, but sometimes contradictory, evidence on the relationship between trade and food

1421
Sarah Joseph, Blame It on the WTO?: A Human Rights Critique (Oxford University Press, 2013) 2; Berta
Esperanza Hernández-Truyol and Stephen J Powell, Just Trade: A New Covenant Linking Trade and Human Rights
(NYU Press, 2009) 4; Cephas Lumina, ‘Free Trade or Just Trade? World Trade Organisation, Human Rights and
Development (Part 1)’ (2008) 12 Law, Democracy & Development 20; Thomas Cottier, ‘Trade and Human Rights:
A Relationship to Discover’ (2002) 5 Journal of International Economic Law 111; Caroline Dommen, ‘Raising
Human Rights Concerns in the World Trade Organization Actors, Processes and Possible Strategies’ (2002) 24
Human Rights Quarterly 1.
1422
From this perspective, countries should not produce most of their food provided a country has ‘sufficient
capacity to generate the foreign exchange necessary to import whatever quantities they consume over and above
what it is efficient to produce, based on comparative advantage.’ ‘Trade Reforms and Food Security:
Conceptualizing the Linkages’, above n 67, para 3.1.
1423
‘Food Security’, above n 57.
1424
For instance, food self-sufficiency may have positive outcomes across all food security dimensions but only in
relation to consumers and producers of particular crops, while food self-reliance will be a better food security
strategy in a different crop. See, eg, Nidup Peljor and Nicholas Minot, ‘Food Security and Food Self-Sufficiency in
Bhutan’ (International Food Policy Research Institute, 2010) <http://www.ifpri.org/publication/food-security-and-
food-self-sufficiency-bhutan?print>; Uttam Kumar Deb, Mahabub Hossain and Steven Jones, ‘Rethinking Food
Security Strategy: Self-Sufficiency or Self-Reliance’ (UK Department for International Development, May 2009).
1425
Bezuneh and Yiheyis explained the lack of consensus in relation to food security and trade liberalisation. They
contributed the lack of consensus to a range of factors including ‘the pace, sequencing and scope of liberalization,
the extent of adaptability of the poor (in terms of location and skill and the constraints they face) to changing
economic conditions, the degree of exposure of the country to food imports, the presence fo favorable initial
coniditons and accompanying measures such as adequate regulatory and export capacity, the time horizion (short-
term versus medium to long term)’. Bezuneh and Yiheyis, above n 1406, 5.

Chapter 9: Trade 345

security. The purpose of this section is to set the scene for outlining what form of agricultural
trade law a RBA to FS would require.

9.2.2.1 Food availability and access

The food self-reliance approach views the link between trade liberalisation and food
security in a similar way to neoliberal perspectives. It holds that trade liberalisation can improve
overall income levels and reduce the costs of food through efficient resource allocation, such
factors greatly increase economic access to food at the individual and household level.1426

Yet, the market struggles to correct pre-existing inequities between people, and thus
liberalising trade is not typically an effective approach to address food insecurity at individual or
household levels.1427 Put simply, ‘Food moves where purchasing power is highest, not where
needs are the most urgent’.1428 For instance, marginalised populations within developed and
developing countries still have limited economic and/or physical access to nutritious food even if
the country has experienced overall economic growth.1429 This is because the gains from trade
are far from equally distributed.1430 Stiglitz explained that ‘The theory of trade

1426
Alan Matthews, ‘Regional Integration and Food Security in Developing Countries.’ (45, Food and Agriculture
Organization of the United Nations, 2003) ch 5; Clemens Boonekamp and Maria Perez-Esteve, ‘How Can Trade
Contribute to Food Security?’ (Research and Analysis, World Trade Organization)
<https://www.wto.org/english/forums_e/public_forum12_e/art_pf12_e/art1.htm>; D Gale Johnson, ‘Food Security
and World Trade Prospects’ (1998) 80 American Journal of Agricultural Economics 941, 944.
1427
Note that state governments can address these distributional inequities without heavily interfering with the
market, but trade liberalization itself is arguably not, in general terms, going to address food insecurity caused by
extreme poverty or other forms of marginalisation.
1428
Oliver De Schutter, ‘WTO Defending an Outdated Vision of Food Security- UN Food Expert Responds to
Pascal Lamy’ (News Release, United Nations Human Rights: Office of the High Commissioner for Human Rights,
16 December 2011) 3, 2 <http://www.srfood.org/images/stories/pdf/press_releases/20111216_wtoriposte_en.pdf>.
1429
For instance, the World Bank concluded that lower socioeconomic groups in developing countries ‘may not be
benefiting from lower international food prices’ created through trade. See, eg, World Bank, Global Economic
Prospects 2010: Crisis, Finance, and Growth (World Bank Publications, 2010) 36. Additionally, rural or remote
populations, as well as those people with illnesses or disabilities, still have limited physical access to food in both
developed and developing states. A large body of work has examined the links between food insecurity and
illnesses, see eg, Louise C Ivers et al, ‘HIV/AIDS, Undernutrition, and Food Insecurity’ (2009) 49 Clinical
Infectious Diseases 1096. From another point of view, malnutrition associated with obesity is a form of food
insecurity, and lower socioeconomic groups are particularly affected, as illustrated by the links between poverty and
food security. Cate Burns, ‘A Review of the Literature Describing the Link between Poverty, Food Insecurity and
Obesity with Specific Reference to Australia’ (Literature Review, VicHealth, 2004) 1
<http://secondbite.org/sites/default/files/A_review_of_the_literature_describing_the_link_between_poverty_food_in
security_and_obesity_w.pdf>. Franklin et al, above n 10.
1430
For example, see Elhanan Helpman, Understanding Global Trade (Harvard University Press, 2011) 22 where a
comparison is made between the gains from trade made in the US, Canada and Japan; See also, Jeffrey J Reimer and
Man Li, ‘Trade Costs and the Gains from Trade in Crop Agriculture’ (2010) 92 American Journal of Agricultural
Economics 1024; Rob Vos, Enrique Ganuza and Samuel Morley (eds), ‘Rising Exports, Slower Growth and Greater

346 Chapter 9: Trade

liberalization…only promises that the country as a whole will benefit. Theory predicts that there
will be losers. In principle the winners could compensate the losers; in practice this almost never
happens’.1431 Accordingly, the government and the other entities that experience economic
growth from trade liberalisation need to distribute the benefits among marginalised groups. In
other words, sufficient governance frameworks are required to ensure and facilitate food
security.

At the national level, the food self-reliance approach depends on export earnings to import
foods for domestic consumption. Sustainability concerns aside,1432 this approach can and has
been effective at facilitating food security but it depends on a range of factors, including a
country’s mix of exports and their trading partners.1433 Trade trends reveal that developing
countries largely import processed or manufactured goods that generally originate from high-
income countries.1434 The issue is that raw agricultural commodities are comparatively cheaper
than other goods, such as value-added foods and machinery.1435 McKendry explained that ‘For
poor countries whose economies are based on the production of agricultural commodities, trade
based on their comparative advantage is unlikely to lead to significant economic
development’.1436 For example, a state may be able to export its unmilled wheat, yet it will not be
able to afford as many imports of edible foods or new technologies. However, this is a general
trend and is not consistent across all countries. For instance, Southeast Asian countries have been

Inequality: Is Trade Liberalization to Blame?’ in Who Gains from Free Trade : Export-Led Growth, Inequality and
Poverty in Latin America (Taylor and Francis, 1st ed, 2007) 43 where the authors explained that, ‘...trade
liberalization and the switch to export-led growth are not the cause of the growth slowdown in the region...But
overall, the impact of the reforms and export growth, while positive, are small. So while the reforms are not to
blame for the region’s woes, they do not appear to be a solution to them either’.
1431
Joseph E Stiglitz, Making Globalization Work (W W Norton & Co, New York, 2006) 63. See also,
reiterating this point, Joseph E Stiglitz and Andrew Charlton, Fair Trade for All. How Trade Can Promote
Development (Oxford University Press, Oxford, 2nd ed, 2007) 28-29.
1432
Such as the carbon footprint of transporting food great distances.
1433
See generally, Sarah B Lewis, ‘Determinants of Sustainability of Trade Liberalization: Export Diversification’
(WH-299-301, Wharton Research Scholars Journal; University of Pennsylvania, 2004)
<http://repository.upenn.edu/cgi/viewcontent.cgi?article=1010&context=wharton_research_scholars>.
1434
‘Global Links: 2010 World Development Indicators’ (World Bank, 2010) 345, 367
<http://data.worldbank.org/sites/default/files/section6.pdf>.
1435
This is a well-founded trend by economists and is termed the Prebisch-Singer hypothesis. See, eg, David I
Harvey et al, ‘The Prebisch-Singer Hypothesis: Four Centuries of Evidence’ (2010) 92 Review of Economics and
Statistics 367.
1436
Comparative Advantage : SAGE Knowledge
<http://knowledge.sagepub.com.ezp01.library.qut.edu.au/view/greenfood/n30.xml>.

Chapter 9: Trade 347

able to improve their ability to finance food imports in recent years as they move from
economies dependent on agriculture to manufacturing.1437

Along with balance of payment issues, developing countries with economies highly
dependent on agriculture are at a severe disadvantage when competing in agricultural markets
against developed states. The productivity of agriculture per active labour in developing
countries is far lower, on average, than developed countries.1438 This is because industrialised
countries on average produce far more food with far less costs due to the mechanised nature of
their farming systems. Furthermore, producers from developed countries will generally have
more access to markets than producers from developing countries. For example, producers from
developed countries tend to have more effective transport infrastructure, storage equipment and
access to knowledge that allows them to export to markets where regulatory standards are high.
In poor and agriculture-dependent communities, trade liberalisation reduces their income earning
opportunities, as they struggle to compete with products from developed countries. 1439

9.2.2.2 Food utilisation and nutrition

Food self-reliance may increase dietary diversity by making a broader variety of foods
available. However, it also aids the nutrition transition, which as discussed in Chapter 2, is the
uptake of resource-intensive, nutrient-poor Western diets with shifts away from sustainable,
nutrient-dense diets.1440 Moreover, trade liberalisation does require drops in government income
as states must reduce taxes, which in turn may affect nutrition-related health programs.1441

1437
Alexander C Chanda and Lucky A Lontoh, ‘Regional Food Security and Trade Policy in Southeast Asia’ (Policy
Report 3, International Institute for Sustainable Development, 2010) 4
<http://www.iisd.org/tkn/pdf/regional_food_trade_asean.pdf>.
1438
Olivier de Schutter, United Nations Human Rights Council, Report of the Special Rapporteur on the Right to
Food: Mission to the World Trade Organization, A/HRC/10/5/Add.2 (4 February 2009) 9; Douglas Gollin, David
Lagakos and Michael E Waugh, ‘The Agricultural Productivity Gap’ (2014) 129 The Quarterly Journal of
Economics 939.
1439
This is because they generally have well-developed industrial agricultural models, including rural infrastructure,
and have lower labour costs compared to developed countries. Consequently, emerging economies that are large
agricultural exporters tend to have the comparative advantage in a range of agricultural products.
1440
Geof Rayner et al, ‘Trade Liberalization and the Diet Transition: A Public Health Response’ (2006) 21 Health
Promotion International 67; Corinna Hawkes et al, ‘The Influence of Trade Liberalisation and Global Dietary
Change: The Case of Vegetable Oils, Meat and High Processed Foods’ in Trade, Food, Diet and Health:
Perspectives and Policy Options (John Wiley & Sons, 2009).
1441
Note though that trade liberalisation is intended to make countries richer, which could mean government
revenue actually increases.

348 Chapter 9: Trade

Although effective regulatory intervention could address some of these drawbacks to food self-
reliance, such interventions can also be restricted under trade law.1442

9.2.2.3 Stability
Similar to the other dimensions of food security, the stability limb can be improved or
harmed by food self-sufficiency or food self-reliance. Where world food prices increase, this can
benefit farmers (not necessarily poor farmers that still experience market access barriers), but
disadvantage poor consumers. Equally, households that have become dependent on export
earnings are vulnerable to fluctuations in the prices of the crops that they grow. When the price
of a commodity drops, their economic and physical access to food decreases.1443

Food self-reliance can stabilise the various dimensions of food security more so than food
self-sufficiency because it lessens the chance of domestic shocks (eg weather events), such
shocks are generally more frequent than international shocks.1444 Therefore, increasing trade
liberalisation can help lessen domestic price volatility by supplementing production.1445 Despite
domestic shocks being more frequent, severe international shocks, such as the Food Price Crisis,
are difficult to address through state laws and policies. Furthermore, the intensification of
agriculture that can result from trade liberalisation (eg due to increased market demand) can

1442
Sharon Friel et al, ‘A New Generation of Trade Policy: Potential Risks to Diet-Related Health from the Trans
Pacific Partnership Agreement’ (2013) 9 Globalization and Health 46, 4–7.
1443
Maarten D C Immink and Jorge A Alarcon, ‘Household food security and crop diversification among
smallholders farmers in Guatemala’ (1991) 24(4) Ecology of Food and Nutrition 1
<http://www.fao.org/docrep/u8050t/u8050t00.htm#Contents>. The declining price of coffee is an example of the
food security issues that arise from relying on a few or a singular commercial agricultural commodity. For instance,
drops in the global price for coffee have repeatedly affected Ethiopia, where over 15 million people depend on
earnings from coffee exporting. See Abu Tefera and Teddy Tefera, ‘Ethiopia - Coffee Annual Report’ (GAIN
Report ET1402, USDA, 13 May 2014) 11
<http://gain.fas.usda.gov/Recent%20GAIN%20Publications/Coffee%20Annual_Addis%20Ababa_Ethiopia_5-12-
2014.pdf>. This in turn affects the ability of Ethiopian people to buy food and the Ethiopian government to earn
revenue. Al Jazeera, Khat Tops Coffee for Ethiopia Farmers (30 January 2014)
<http://www.aljazeera.com/video/africa/2014/01/khat-tops-coffee-ethiopia-farmers-20141308156680759.html>.
1444
Phil Abbott, ‘Stabilisation Policies in Developing Countries After the 2007-08 Food Crisis’ in Brooks Jonathan
(ed), Agricultural Policies for Poverty Reduction (OECD Publishing, 2012) 109, 119.
1445
Derek Byerlee, Bob Myers and Thom Jayne, ‘Managing Food Price Risks and Instability in an Environment of
Market Liberalization’ (32727-GLB, The World Bank, 2005) 66
<http://siteresources.worldbank.org/INTARD/Resources/ManagingFoodPriceRisks.pdf> where the authors
explained that the ‘Liberalization of trade, especially the promotion of regional trade, is one of the most effective
“quick wins” for reducing food price volatility in small and medium-sized countries’.

Chapter 9: Trade 349

negatively affect the agrobiodiversity required to build on-farm resilience, especially in light of
the changing climate.1446

As food self-reliance promotes dependence on certain imports and exports, international

market fluctuations are increasingly influencing the stability dimension of food security.1447 If a
country has a diversified mix of exports and a wide range of markets, they are likely to be less
susceptible to fluctuating food prices. Unfortunately, the majority of developing countries
specialise in only a few agricultural commodities that provide the largest share of the total export
earnings.1448 Subsequently, UNDP observed that ‘Despite the growing participation of
developing countries in world trade, their exports are increasingly more concentrated in a narrow
range of products, compared to more advanced economies’.1449 Thus, developing countries
should strategically limit their adoption of the food self-reliance approach because they are
generally more susceptible to external shocks and focus on developing local food production.1450

When a food price change negatively affects a group’s food security status, it becomes
increasingly difficult for those households to exit poverty and gain stable economic access to
food.1451 The effects of food price changes are experienced in both developed and developing
countries among the most vulnerable groups and the impacts tend to be long-term as a result of,
for instance, reduced spending on health care/education or increased consumption of nutrient-

1446
See, eg, Carmen G Gonzalez, ‘Trade Liberalization, Food Security, and the Environment: The Neoliberal Threat
to Sustainable Rural Development’ (2004) 14 Transnational Law & Contemporary Problems 419. Note though that
it is difficult to accurately identify direct and indirect effects of trade liberalisation on agrobiodiversity because of
the high number of variables, and the impacts of trade liberalisation on agrobiodiversity can be positive or negative.
For instance, if the government reduces its domestic support for agricultural chemicals this could aid
agrobiodiversity. See, The Impact of Trade Liberalization on Agricultural Biological Diversity: Domestic Support
Measures and Their Effects on Agricultural Biological Diversity (CBD Technical Series No. 16, Secretariat of the
Convention on Biological Diversity, 2005). Note that it is difficult to accurately identify direct and indirect effects of
trade liberalization on agrobiodiversity because of the high number of variables.
1447
See, eg, United Nations Department of Economic and Social Affairs, The Global Social Crisis: Report on the
World Social Situation 2011, UN Doc ST/ESA/334 (June 2011) 62.
1448
‘FAO Papers on Selected Issues Relating to the WTO Negotiations on Agriculture’ (Food and Agriculture
Organization of the United Nation, 2002) 219 <ftp://ftp.fao.org/docrep/fao/004/Y3733E/Y3733E00.pdf>.
1449
‘Towards Human Resilience: Sustaining MDG Progress in an Age of Economic Uncertainty’, above n 4, 28.
1450
United Nations Conference on Trade and Development, Key Statistics and Trends in International Trade, UN
Doc UNCTAD/DITC/TAB/2014/2 (2015) 5.
1451
See, eg, The World Bank, Rising Food Prices: Policy Options and the World Bank Response, (2008)
<http://siteresources.worldbank.org/NEWS/Resources/risingfoodprices_backgroundnote_apr08.pdf>; Food and
Agriculture Organisation of the United Nations, The State of Food Insecurity in the World, 2008: High Food Prices
and Food Security, Threats and Opportunities, (2008) <ftp://ftp.fao.org/docrep/fao/011/i0291e/i0291e03.pdf>;
Joachim, Van Braun, Rising food prices: What should be done? IFPRI Policy Brief, International Food Policy
Research Institute (April 2008).

350 Chapter 9: Trade

poor foods.1452 Moreover, fluctuations at the international level affect much larger groups of
people than isolated, domestic shocks.1453

9.2.2.4 Sustainability
A disconnect exists between the increased specialisation required for trade liberalisation
based on the theory of comparative advantage and the agrodiversity needed for long-term food
security. As Gonzalez explained:

The theory of comparative advantage promotes economic specialization in goods that a

country produces relatively more efficiently…[but] extending the principle of
specialization from industry to agriculture is fundamentally inconsistent with
agrobiodiversity necessary to protect the integrity of the world’s food supply.1454

In order to specialise in a crop, monoculture cropping systems and industrial methods are
adopted to produce large quantities of the same crop. In addition, TNCs generally seek to buy as
much standardised products from as few farms as possible.1455 Yet, this kind of agriculture is
reliant on external-inputs (eg pesticides), reduces biodiversity and tends to simplify diets.1456

As agricultural biodiversity and not farm specialisation is critical for long-term food
security, comparative advantage is, in some circumstances, at direct odds with a RBA to FS and
especially criterion 4 of a RBA to FS. Ultimately, agricultural trade liberalisation will be
detrimental to long-term food security unless there is adequate government support for
sustainable farming practices (that is, agroecology) and supply chain actors that create
opportunities for biodiverse farms.

1452
Mark Nord, ‘Food Spending Declined and Food Insecurity Increased for Middle-Income and Low-Income
Households from 2000 to 2007’ (No. (EIB-61), United States Department of Agriculture, Economic Research
Service, 2009) <http://www.ers.usda.gov/publications/eib-economic-information-bulletin/eib61.aspx>; Webb, above
n 860; ‘The Global Social Crisis: Report on the World Social Situation 2011’, above n 141, 63–66.
1453
See, eg, ‘The Global Social Crisis: Report on the World Social Situation 2011’, above n 141, 65 where it is
reported that ‘In Asia, a 20 per cent increase in food prices probably increased the number of poor by 5.7 million
and 14.7 million in the Philippines and Pakistan, respectively’.
1454
Carmen G Gonzalez, ‘Deconstructing the Mythology of Free Trade: Critical Reflections on Comparative
Advantage’ (2006) 17 Berkeley La Raza Law Journal 65, 768.
1455
Agni Kalfagianni, Doris A Fuchs and Maarten Arentsen, ‘Retail Power, Private Standards, and Sustainability in
the Global Food System’ in Jennifer Clapp and Doris A Fuchs (eds), Corporate Power in Global Agrifood
Governance (MIT Press, 2009) 30.
1456
Thrupp, above n 175, 273.

Chapter 9: Trade 351

9.2.3 Rights-Based Approach to Agricultural Trade
The impacts of trade liberalisation on food insecurity are varied. Trade liberalisation is not
the solution to food insecurity and it can cause food insecurity by exacerbating inequalities; but
the positive impacts of trade liberalisation on income levels can be a contributing factor to food
security and the progressive realisation of related human rights. This section briefly outlines how
agricultural trade liberalisation and associated agreements could be consistent with a RBA to FS
in order to aid the analysis of the agricultural trade laws in the next part.

First, for the liberalisation of agriculture to be consistent with a RBA to FS, agricultural
trade agreements must focus on addressing food security in a way that aligns with human rights.
At the very least, trade agreements must incorporate human rights obligations into their preamble
and maintain the policy space required by states to carry out their human rights obligations
(criterion 1 of a RBA to FS).1457 Furthermore, trade agreements should only be finalised once
each negotiating state has undertaken a human rights impact assessment and made any
appropriate amendments to the agreement based on their assessment’s findings (criterion 3 of a
RBA to FS).1458

Second, for the liberalisation of agriculture to be consistent with a RBA to FS, countries
with poor and agricultural-dependent societies must be able to protect and support these
communities and scale up their food self-sufficiency (criterion 2 of a RBA to FS). As the director
of the FAO, Jacques Diouf, observed, ‘[t]he development of local food production in the low-
income countries with high dependence of agriculture for employment and income is the one
factor that dominates all others in determining progress or failure in improving the food security
of these countries’.1459

1457
See, eg, Steven R Ratner, The Thin Justice of International Law: A Moral Reckoning of the Law of Nations
(OUP Oxford, 2015) 352 where the author outlined the main critiques of trade law from the point of view of human
rights advocates.
1458
Olivier De Schutter, Guiding Principles on human rights impact assessments of trade and investment
agreements, Human Rights Council,19th sess, Agenda Item 3, UN Doc A/HRC/19/59/Add.5 (19 December 2011).
See also, Deanna Kemp and Frank Vanclay, ‘Human Rights and Impact Assessment: Clarifying the Connections in
Practice’ (2013) 31 Impact Assessment and Project Appraisal 86; Lisa Forman and Gillian MacNaughton, ‘Moving
Theory into Practice: Human Rights Impact Assessment of Intellectual Property Rights in Trade Agreements’
(2015) 7 Journal of Human Rights Practice 109.
1459
Jacques Diouf, ‘Foreword’ in Jelle Bruinsma (ed), World Agriculture: towards 2015/2030- an FAO perspective
(Food and Agriculture Organisation of the United Nations; Earthscan Publications Ltd, 2003) iii, iii.

352 Chapter 9: Trade

 Support to do this could tap into the funds available for climate change adaptation, as well
as traditional development aid and the World Bank. Additionally, developed and middle-income
countries should take measures to preference imports from least-developed states in order to
address the market access barriers producers from these countries face and to facilitate the
development of their agricultural systems. This is consistent with criterion 2 of a RBA to FS,
which requires special treatment and support for food insecure groups. Likewise, agricultural
trade agreements should give special flexibilities to food import dependent countries so that they
can pursue, to a limited extent, food self-sufficiency. Import-dependent countries tend to be
developing and are particularly vulnerable to fluctuations in international food prices.1460

Third, and in line with criterion 4 of a RBA to FS, all states must have the regulatory space
to facilitate transitions towards resilient and agroecological food production systems.1461 This
requires flexibilities in agricultural trade agreements so that states can create incentives for the
adoption of agroecological farming. States should be encouraged to adopt participatory
approaches to the development of such policy measures.

9.3 THE AGREEMENT ON AGRICULTURE

9.3.1 Brief Background to the Agreement on Agriculture

The top agricultural exporters in US dollar volume are respectively: the EU,1462 US, Brazil,
China, Canada and Argentina.1463 These countries are considered ‘natural exporters’ in the sense
that their geographical position, ecological characteristics, land size and history mean that their
production costs for large-scale food production are lower.1464 Agriculture trade in high value

1460
The key author in relation to making agricultural trade liberalisation more in line with human rights is Carman
Gonzalez. See, in particular, Gonzalez, ‘International Economic Law and the Right to Food’, above n 42, 186 where
Gonzalez explains that ’...multilateral and bilateral trade agreements should give developing countries the policy
flexibility to utilize an appropriate mix of tariffs and subsidies to encourage domestic food production, protect the
livelihoods of small farmers, promote rural development, and encourage environmentally friendly cultivation
techniques.
1461
See generally, Gonzalez, ‘Trade Liberalization, Food Security, and the Environment’, above n 1436.
1462
In particular Germany, France and the Netherlands.
1463
The European Commission, Agricultural Trade in 2013: EU Gains in Commodity Exports, Monitoring Agri-
Trade Policy (MAP 2014-1) (2014) < http://ec.europa.eu/agriculture/trade-analysis/map/2014-1_en.pdf>.
1464
Peter Einarsson, ‘Agricultural Trade Policy as If Food Security and Ecological Sustainability Mattered: Review
and Analysis of Alternative Proposals for the Renegotiation of the WTO Agreement on Agriculture’ (Church of
Sweden Aid, Forum SYD, The Swedish Society for Natural Conservation and the Programme of Global Studies,
2000) 12 <http://www.iatp.org/files/Agricultural_Trade_Policy_As_If_Food_Security_.pdf>.

Chapter 9: Trade 353

food products and staple food items is highest between developed countries, and developed
countries consistently export more to developing countries than vice versa.1465 In fact, the share
of global agricultural exports that originates from developed countries has increased, while the
share of exports originating from developing countries over the last four decades has
declined.1466

Agriculture has traditionally been a highly protected area in developed countries,

especially in the EU, Japan and US, and today it remains the most distorted economic sector in
the world.1467 These protectionist measures take various forms, including as subsidies and tariffs
that have the effect of promoting domestic production and agricultural exports and reducing
consumer demand for competing products. In the 1970s, the combined impact of their
protectionist measures and the industrialisation of farming led to the EU and the US
overproducing food (which then affected farmer income).1468 The solution has been to release
large amounts of artificially cheap food on the world market or to remove the stock by providing
it as ‘food aid’ to developing countries. Chen explained that:

Farmers in poor countries were unable to compete with these below-cost subsized
products from rich developed countries. They were forced to leave their farmland or they
had to grow economic plants instead of highly competitive food crops … it is not a
surprise that many developing countries agricultural productivity has been substantially
undermined.1469

Other large agricultural exporting countries such as Australia, Canada and Brazil are
likewise disadvantaged (but not to the same extent) by artificially cheap food and the lost

1465
Guillermo Valles, ‘Evolution of the International Trading System and Its Trends from a Development
Perspective’ in Trade and Development Board, Sixty-First Session (Division of International Trade on Goods and
Services, and Commodities- UNCTAD, 2014) 13, 8–13
<http://unctad.org/meetings/en/Presentation/tdb61_Item7_ditc_en.pdf>; Using data from United Nations
Commodity Trade Statistics Database (2014) United Nations: International Trade Statistics Knowledgebase
<http://comtrade.un.org/db/default.aspx>.
1466
Nelleman et al, above n 625, 80 This trend is partly due to a shift from agricultural production to manufacturing .
1467
United Nations Conference on Trade and Development, Evolution of the international trading system and of
international trade from a development perspective, 58th sess, Item 7, UN Doc TD/B/58/3 (23 September 2011)
para 40.
1468
Kirit S Parikh et al, Towards Free Trade in Agriculture (Springer Science & Business Media, 2013) 19.
1469
Dr Ying Chen, Trade, Food Security, and Human Rights: The Rules for International Trade in Agricultural
Products and the Evolving World Food Crisis (Ashgate Publishing, Ltd., 2014) 75.

354 Chapter 9: Trade

opportunity of market access in the EU and US.1470 Meanwhile, and in order to have access to
credit through structural adjustment programmes (described in Chapter 2), developing countries
agreed to reduce or remove barriers to agricultural trade.1471 The Agreement on Agriculture
under the World Trade Organization was designed to address these issues by creating rules for
the liberalisation of agricultural trade among all WTO member countries.

Developing countries account for half of all agricultural trade and the agricultural sector
makes large contributions to these economies in comparison to developed countries.1472 Broadly
speaking, least-developed and net-food-importing developing countries are more susceptible to
the negative impacts trade liberalisation can have on food security. The table below formulated
by Valdés and Foster shows the trade balance of developing countries by region from 2005-
2009.1473 It illustrates, for instance, that 89 developing countries are net agricultural and food
importers and 22 are net agricultural exporting and net food importing, which makes these
countries especially vulnerable to fluctuations in trade prices.

1470
Richard A Higgott and Andrew Fenton Cooper, ‘Middle Power Leadership and Coalition Building: Australia,
the Cairns Group, and the Uruguay Round of Trade Negotiations’ (1990) 44 International Organization 589.
1471
Stephen Healy, Richard Pearce and Michael Stockbridge, ‘The Implications of the Uruguay Round Agreement
on Agriculture for Developing Countries’ (Training Materials for Agricultural Planning 41, Food and Agriculture
Organisation of the United Nations, 1998).
1472
World Trade Organization, Developmental Aspects of the Doha Round of Negotiations, WTO Doc
WT/COMTD/W/143/Rev.5 (28 October 2010) para 2(a).
1473
Valdes and Foster, above n 683, 7. These authors compared the figures from the table above with figures from
1995-1999 and found that the number of developing countries that were both net agricultural importers and net food
importers increased from 74 to 89.

Chapter 9: Trade 355

Table 9.1 Valdés and Foster – Net Food-Importing Developing Countries: Who They Are, and Policy Options
for Global Price Volatility

Negotiations for amendments to the AoA are taking place under the Doha Round, which is
the latest WTO trade negotiation round. Positively, the Doha Round seeks to reach trade
agreements, including in relation to agriculture, that better address the needs and interests of
developing countries. To date, agriculture has been a highly contentious issue, with few
breakthroughs to date.1474 Disputes concerning agriculture even led to the breakdown of the
Doha negotiations in 2008.1475 Supposedly, the negotiations deadlocked on the issue of a special
safeguard mechanism that would permit developing countries to temporarily raise their tariffs if
there is a surge in imports or a drop in the world price of food. Others have suggested that the
collapse of the negotiations concerned the entire agreement, that is, ‘the balance of gains and
losses in the package as a whole’.1476

1474
However, one breakthrough (currently referred to as the Nairobi Package) is considered to be highly significant,
as developed countries agreed to stop all export subsidies. See, WTO Members Secure ‘historic’ Nairobi Package
for Africa and the World (19 December 2015) World Trade Organization
<https://www.wto.org/english/news_e/news15_e/mc10_19dec15_e.htm>.
1475
See, eg, ‘The Breakdown of the Doha Round Negotiations: What Does It Mean for Dealing with Soaring Food
Prices?’ (Policy Brief 3, Food and Agriculture Organization of the United Nation, August 2008)
<http://www.fao.org/3/a-aj221e.pdf>.
1476
Agricultural Safeguard Controversy Triggers Breakdown in Doha Round Talks (7 August 2008) International
Centre for Trade and Sustainable Development <http://www.ictsd.org/bridges-news/bridges/news/agricultural-
safeguard-controversy-triggers-breakdown-in-doha-round-talks>.

356 Chapter 9: Trade

9.3.2 The Preamble to the Agreement on Agriculture
The AoA does not adopt a RBA nor does it refer to human rights principles or objectives.
Instead, the AoA’s long-term objective is to create a ‘[f]air and market-oriented agricultural
trading system’ by substantially and progressively reducing ‘[a]gricultural support and protection
over an agreed period of time’ in order to correct and prevent ‘[r]estrictions and distortions in
world agricultural markets’.1477 Notably, the long-term objective is not to completely liberalise
trade in agricultural products by removing any government interventions. Instead, the goal is to
gradually reduce domestic support and protections.1478 As a result, the objective leaves space for
some government interventions in agriculture or for food security purposes.

Notwithstanding its trade-focused objective, the preamble provides that

‘[c]ommitments…should be made in an equitable way among all Members, having regard to
non-trade concerns, including food security and the need to protect the environment’.1479 The
reason this provision is important for our purposes is because non-trade concerns explicitly
encompasses food security and would extend to human right considerations. Additionally, this
provision reflects an ideological compromise between member states whose views dramatically
differed regarding the extent to which agriculture should be liberalised.

On one end of the spectrum, the Cairns Group,1480 along with others, supported
eliminating or capping any potentially distorting government intervention in agriculture similar

1477
Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867
UNTS 3 (entered into force 1 January 1995) Annex 1A (Agreement on Agriculture) preamble. ‘Fair trade’ has
different meanings in certification schemes and food sovereignty discourses than it has in the AoA, and so a more
appropriate wording for the AoA would be ‘freer trade’. This is because the AoA is not aimed at wealth distribution
like the fair trade movement.
1478
Panel Report, Canada- Measures Affecting the Importation of Milk and the Exportation of Dairy Products, WTO
Doc WT/DS103/R, WT/DS113/R (17 May 1999).
1479
Agreement on Agriculture Preamble para 6.
1480
The Cairns Group is a coalition of nineteen agricultural exporting countries including Australia, Brazil, Canada,
Thailand, South Africa and Argentina, and it aims to promote trade liberalisation in agricultural exports. This group
was the driving force behind the WTO Agreement on Agriculture and it was created as a response to the agricultural
export subsidies war between the two largest agricultural traders, which are the United States and the EU. This
subsidiary war started in 1985 and was diminishing other countries’ comparative advantage in agricultural products.
For more information, see, Member Countries (2014) The Cairns Group
<http://www.cairnsgroup.org/Pages/map/index.aspx>; Ernest H Preeg, ‘The U.S. Leadership Role in World Trade:
Past, Present, and Future’ (1992) 15 Washington Quarterly 79.

Chapter 9: Trade 357

to other areas of trade.1481 On the other end of the spectrum was the policy concept of
‘multifunctionality’ put forward primarily by the EU and Japan. Using this concept, the EU
argued that agriculture has numerous interconnected outputs, including environmental services
that markets do not protect or encourage, and so government intervention is required to address
these market failures.1482 In the end though, the AoA was largely finalised by negotiations
between the EU and the US, which has been widely criticised for reflecting a lack of
transparency and inclusivity in agricultural trade negotiations.1483

The compromise reached for the AoA was to refer to non-trade concerns rather than
explicitly reference ‘multifunctionality’, such concept some members viewed as having
‘protectionist overtones’.1484 While the AoA does not define non-trade concerns, it provides a
non-exhaustive list of potential non-trade concerns that includes, along with food security and
the environment, the preservation of rural areas and food safety.1485 From a RBA to FS
perspective, the inclusion of non-trade concerns into the AoA is vital for ensuring states are still
able to progress human rights obligations and long and short-term food security using
programmes, policies and other regulatory tools.

1481
Clive Potter and Jonathan Burney, ‘Agricultural Multifunctionality in the WTO—legitimate Non-Trade Concern
or Disguised Protectionism?’ (2002) 18 Journal of Rural Studies 35, 38.
1482
These non-commodity outputs encompass a range of different benefits flowing from agriculture including the
conservation and sustainable management of natural resources, the preservation of biodiversity and the cultural and
socio-economic health of rural areas. For more information see the extensive report by Leo Maier and Mikitaro
Shobayashi, ‘Multifunctionality: Towards an Analytical Framework’ (OECD, 2001)
<http://www.oecd.org/tad/agricultural-policies/40782727.pdf>. In particular, page 13 contains a working definition
of multifunctionality. Note that ‘multifunctionality’ can be interpreted as being closely related to environmental
economic theory concerning market-based regulation and the internalisation of the external costs of production (that
is, environmental and social costs and benefits). For an explanation of how internalising the costs and benefits of
agriculture could work, see Jules Pretty et al, ‘Policy Challenges and Priorities for Internalizing the Externalities of
Modern Agriculture’ (2001) 44 Journal of Environmental Planning and Management 263.
1483
Amrita Narlikar, World Trade Organization : A Very Short Introduction (Oxford University Press, 2005) 68;
Jennifer Clapp, ‘Developing Countries and the WTO Agriculture Negotiations’ (Working Paper No. 6, The Centre
for International Governance Innovation, March 2006) 1
<https://www.cigionline.org/sites/default/files/Developing%20Countries%20and%20the%20WTO%20Agriculture
%20Negotiations.pdf> where the author explained that developing countries ‘felt that the Uruguay Round, and
indeed all rounds that preceded it, reflected the agenda of the industrialized countries’; Fatoumata Jawara and Aileen
Kwa, Behind the Scenes at the WTO: The Real World of International Trade Negotiations, Updated Edition (Zed
Books, 2004) where the authors extensively examined critiques of the AoA negotiation process. See, in particular, ch
5.
1484
F Smith, ‘“Multifunctionality” and “Non-Trade Concerns” in the Agriculture Negotiations’ (2000) 3 Journal of
International Economic Law 707, 713.
1485
Agreement on Agriculture art 20(c) contains the non-exhaustive list of example non-trade concerns.

358 Chapter 9: Trade

 At the same time, the construction of trade and non-trade concerns appears to artificially
separate the operations of the market from food security and agriculture. In fact, the frame of
trade and non-trade concerns constricts the AoA to a narrow economic-growth focused approach
to which all other concerns are ‘non-trade’ matters that only affect the structure and
implementation of trade agreements in limited and minor ways.1486 This disregard to the costs of
market liberalisation is due in part to the neoliberal ideology that markets self-correct.
Nevertheless, the narrow focus on economic growth is not consistent with criterion 1 of a RBA
to FS, which requires that the ultimate goal of regulation be the progressive realisation of human
rights. Nor is it consistent with sustainable development in which economic considerations are
on balance with social and environmental factors.1487

India summarised this point and emphasised the impact trade liberalisation has had on its
domestic food security in its submission to the WTO’s General Council. In relation to non-trade
concerns, India’s submission stated:

…this need to address both trade and non-trade concerns, as mandated in the Preamble,
has not been fully reflected in the provisions of the Agreement and consequently in its
implementation. The major thrust of the Agreement appears to be based on the
hypothesis that liberalization is the panacea of all ills in the agricultural sector. While
this may be tenable from a conventional economic view point, such reasoning does not
take into account the problems faced by a number of developing countries, which because
of certain underlying constraints, have to necessarily take into account non-trade concerns
such as food security and rural employment while formulating their domestic policies
(emphasis added).1488

The essence of India’s argument is that, due to the inequities between countries, developed
states may be able to take steps to address ‘non-trade concerns’ without disrupting the market.
Yet, this is not the way to ensure food security in developing countries such as India where

1486
See, eg, Einarsson, above n 1454, 35; Gonzalez, ‘International Economic Law and the Right to Food’, above n
42.
1487
The Right to Development, GA Res 67/171, UN GAOR, 67th sess, Agenda Item 69(b), UN Doc
A/RES/67/171(22 March 2013) paras 12(c), 29, 42; Human Rights, Trade and Investment (2015) Office of the High
Commissioner for Human Rights <http://www.ohchr.org/EN/Issues/Globalization/Pages/GlobalizationIndex.aspx>.
1488
Preparations for the 1999 Ministerial Conference: Proposals Regarding Food Security in the Context of
Paragraph 9(a)(ii) of the Geneva Ministerial Declaration, Communication from India, WTO Doc WT/GC/W/342
(29 September 1999) para [1], 1.

Chapter 9: Trade 359

effective market intervention is required to allow producers to be able to compete so that they
can begin to gain from trade.

Overall, the AoA’s distinction between trade and non-trade concerns and its narrow
objective on trade liberalisation has allowed the AoA to stop at the means (trade liberalisation)
rather than the purpose of liberalising trade (which is theoretically the improvement of ‘non-
trade’ concerns, including the progressive realisation of human rights and food security). An
approach that focuses on liberalising trade, while ignoring why trade should be liberalised has the
effect of forcing food security into the margins of agricultural trade liberalisation objectives.

9.3.3 Special and Differential Treatment Provisions in the Agreement on Agriculture

Despite the above critique of the AoA’s objective, the agreement does contain provisions
for special and differential treatment of developing country members (SDT) that could alleviate
some of the negative impacts of trade liberalisation on food security.1489 The inclusion of SDT is
in line with a RBA to FS, which allows discriminatory measures where such measures are
necessary for substantive equality between developed and developing countries.1490 Accordingly,
SDT provisions must be ‘reasonable, objective and proportionate’ and they must cease once
substantive equality has been realised.1491

The AoA provides SDT in three ways. Firstly, the AoA creates a longer implementation
period for developing country members. In other words, the AoA differentiates between countries
through deferred compliance. Reductions in market interventions were to be implemented over
six years for developed countries and ten years for developing countries.1492 Secondly, the AoA
differentiates the substance of obligations of developing countries to reduce protectionist

1489
Bernard Hoekman, ‘Operationalizing the Concept of Policy Space in the WTO: Beyond Special and Differential
Treatment’ (2005) 8 Journal of International Economic Law 405, 406.
1490
For information regarding the rationale behind SDT provisions, see eg, Alice De Jonge, ‘From Unequal Treaties
to Differential Treatment: Is There a Role for Equality in Treaty Relations?’ (2014) 4 Asian Journal of International
Law 125; Alexander Keck and Patrick Low, ‘Special and Differential Treatment in the WTO: Why, When and
How?’ (WTO Staff Working Paper No. ERSD-2004-03, Social Science Research Network, 1 January 2004)
<http://papers.ssrn.com/abstract=901629>; Nandang Sutrisno, ‘Substantive Justice Formulated, Implemented, and
Enforced as Formal and Procedural Justice: A Lesson from WTO Special and Differential Treatment Provisions for
Developing Countries’ (2010) 13 The Journal of Gender, Race, and Justice 671; Paola Conconi and Carlo Perroni,
‘Special and Differential Treatment of Developing Countries in the WTO’ (2015) 14 World Trade Review 67.
1491
Olivier De Schutter, Guiding Principles on human rights impact assessments of trade and investment
agreements, Human Rights Council,19th sess, Agenda Item 3, UN Doc A/HRC/19/59/Add.5 (19 December 2011)
para 2.5.
1492
Except in cases that fall under art 13 of the Agreement on Agriculture.

360 Chapter 9: Trade

measures. For example, least-developed states are exempt from obligations to reduce their tariffs
or domestic support measures.1493 Additionally, developed countries had to reduce their tariffs
over a 36 per cent average, while for developing countries it was only 24 per cent average
coupled with the longer implementation period of four years. Whether this approach to SDT is
sufficient for a RBA to FS, including in particular criterion 2 regarding food insecure groups,
will be discussed in the analysis of the AoA’s provisions in sections 9.4 and 9.5.1.

The last way in which the AoA provides SDT is through its requirement that developed
state members ‘take action’ to implement the Decision on Measures Concerning the Possible
Negative Effects of the Reform Programme on Least-Developed and Food-Importing Developing
Countries (the Decision).1494 This unbinding policy document recognises that trade liberalisation,
at least during the implementation period, may have a negative impact on food availability for
LDCs and net-food importing developing countries.1495 Therefore, the Decision reflects the idea
that trade liberalisation will create winners and losers, and the winners will fully compensate the
losers and still come out ahead, in terms of economic growth, after trade liberalisation. In other
words, the entirety of the gains from trade will be greater than total losses.1496

The Decision provides four main ways to respond to the problem of unequal gains from
trade. These were: the provision of food aid,1497 alignment of export credits with SDT,1498
maintenance or creation of financing facilities,1499 and supplying aid programmes for increasing
agricultural productivity and infrastructure.1500 The implementation of this decision has not
occurred. The UNCTAD secretariat notes the failure of implementation and suggests that the

1493
Agreement on Agriculture art 15(2).
1494
Ibid art 16.
1495
Decision on Measures Concerning the Possible Negative effects of the Reform Programme on Least-Developed
and Net-Food Importing Developing Countries, Decisions adopted by the Trade Negotiations Committee on 15
December 1993 and 14 April 1994, para 2.
1496
‘Trade Reforms and Food Security: Conceptualizing the Linkages’, above n 67, 14.
1497
This involves periodically reviewing the level of food aid and adopting guidelines to ensure that food aid is
provided. See, Decision on Measures Concerning the Possible Negative effects of the Reform Programme on Least-
Developed and Net-Food Importing Developing Countries, Decisions adopted by the Trade Negotiations Committee
on 15 December 1993 and 14 April 1994 < http://www.wto.org/english/docs_e/legal_e/35-dag_e.htm> para 3(i)-(iii).
1498
Ibid paras 3-4.
1499
Decision on Measures Concerning the Possible Negative effects of the Reform Programme on Least-Developed
and Net-Food Importing Developing Countries para 5 recognises that LDCs and net-food-importing developing
countries can lend from international financial institutions or that financing initiatives could be created.
1500
Ibid para 3(iii) encourages members to ensure some of their aid programmes address agricultural productivity
and infrastructure in LDCs and NFIs.

Chapter 9: Trade 361

‘disappointing result’ is caused by the decision’s non-binding, vague recommendations without
any operational mechanisms (eg a lack of targets or monitoring mechanisms) and the complete
failure of the WTO to attempt a systematic assessment of the impact of the AoA.1501

It is worth noting that there are other SDT provisions under the WTO regime that may be
useful for agriculture. Key amongst these is the Generalized System of Preferences, which
allows specific products from selected developing countries to be imported into particular
developed countries without tariffs.1502 The countries that have most benefited from such
preferences are large agricultural exporting countries including Thailand, Brazil, India and
Indonesia, thus least-developed countries have not substantially benefited.1503

9.4 AGREEMENT ON AGRICULTURE’S SUBSTANTIVE PROVISIONS: IMPACT

AND DESIGN

The AoA creates a regulatory framework for reducing market interventions in agricultural
trade across three areas. The areas (termed pillars) are market access (eg reductions in tariffs),
domestic support (eg reductions in government subsidies), export competition (eg incentives
provided to encourage exporting). Significantly, the implementation period has now passed, so
there is some useful empirical data regarding whether and how countries have met their required
reductions.

9.4.1.1 Pillar One: Tariffication and the prohibition of non-tariff measures

(a) Tarification and tariff rate limits

Market access concessions are limits to the tariffs that can be set (termed tariff bindings)
and commitments to reduce tariffs.1504 As discussed, tariffs are essentially a tax on imports, and

1501
Impact of the Reform Process in Agriculture on LDCs and Net Food-Importing Developing Countries and Ways
to Address Their Concerns in Multilateral Trade Negotiations, UN Doc TD/B/COM.1/EM.11/2 (23 June 2000).
Further supported by Vrolijk, ‘Decision on Measures Concerning the Possible Negative Effects on LDCs and
NFIDCs’, Module 9, prt 2 in FAO, Multilateral Trade Negotiations on Agriculture: A Resource Manual, (2000) <
http://www.fao.org/docrep/003/x7353e/x7353e09.htm> para 9.4.
1502
Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries,
GATT Doc L/4903 (28 November 1979); Marrakesh Agreement Establishing the World Trade Organization,
opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1A (General
Agreement on Tariffs and Trade 1994) art 1(b).
1503
Renee Johnson, ‘Generalized System of Preferences: Agricultural Imports’ (CRS Report, Prepared for Members
and Commitees of Congress 7-5700, Congressional Research Service, 10 January 2014).
1504
Agreement on Agriculture art 4(1).

362 Chapter 9: Trade

can distort trade. For example, producers have to factor the cost of the tariff into the price of their
products in order to ensure they make a profit; hence, tariffs can make imported food products
more expensive than domestic, thereby ensuring that the products from domestic farmers are
more competitive.1505

The first step to adopting market access concessions under the AoA involved WTO
members turning non-tariff border measures into tariffs (the tarification process).1506 Ultimately,
this process means that specific kinds of non-tariff barriers to trade in agricultural products have
been converted into a more detectable and negotiable form.1507 After the tarification process,
member states are not able to maintain, resort, or revert to non-tariff border measures. In other
words, they cannot re-adopt measures that they have had turned into tariffs through the
tarification process.1508 Tarification has to be undertaken by all WTO members including
developing and least-developed countries.

‘Dirty tarification’ has adversely affected the outcomes of tarrification. Such practices
included acts where members ‘[d]deliberately overestimated the levels of protection provided by
non-tariff barriers to trade in order to increase their operative base rate of duty resulting from

1505
Robert Thompson, Agricultural Price Supports (1993) The Concise Encyclopedia of Economics
<http://www.econlib.org/library/Enc1/AgriculturalPriceSupports.html>.
1506
Agreement on Agriculture art 4(2). Details on how to carry out the tarrification process were provided for in
Modalities for the Establishment of Specific Binding Commitments under the Reform Programme,
MTN.GNG/MA/W/24 (1993) (Modalities Agreement) Annex 3 para 2. The purpose of tarrification is to reveal the
various non-tariff barriers to trade that each member has in place. Non-tariff measures that were to be converted into
tariffs were provided for in footnote 1 of art 4(2), and these measures included ‘quantitative import restrictions,
variable import levies, minimum import process, discretionary import licensing’. Note that, converted non-tariff
border measures had to become tariffs that provided the equivalent level of protection according to Agreement on
Agriculture art 1(d). In addition, state trading enterprises (organisations supported by a government to import and
export products eg marketing boards) are explicitly not considered a non-tariff barrier, and thus do not need to go
through the tarification and reduction process. In other words, it is legal for states to make a state corporation the
sole importer or exporter of a product. See, Agreement on Agriculture art 4(2) and GATT art 17.
1507
See, eg, Appellate Body Report, Chile - Price Band System and Safeguard Measures Relating to Certain
Agricultural Products, WTO Doc WT/DS207/AB/R (23 September 2002) [200]-[201] where the Appellate Body
explained that ‘As ordinary customs duties are more transparent and more easily quantifiable than non-tariff
barriers, they are also more easily compared between trading partners, and thus the maximum amount of such duties
can be more easily reduced in future multilateral trade negotiations. The Uruguay Round negotiators agreed that
market access would be improved- both in the short term and in the long term- through bindings and reductions of
tariffs and minimum access requirements, which were to be recorded in Members’ Schedules. Thus Article 4 of the
Agreement on Agriculture is appropriately viewed as the legal vehicle for requiring the conversion into ordinarily
customs duties of certain market access barriers affecting imports of agricultural products’ para [200-201]
1508
Agreement on Agriculture art 4(2).

Chapter 9: Trade 363

tarification’.1509 Ingo provided perhaps the most cited analysis of dirty tarification. She found
that the converted tariffs among both developed and developing countries schedules were
‘[s]significantly higher than the wedge between actual domestic and world market prices in the
base period, hence affording higher protection then prevailed in 1986-1988’.1510 The extent of
dirty tarification depends on the commodity and the country, yet governments tended to over-
estimate the value of their non-tariff border measures for staple food items, including dairy and
grains.1511 As a result, dirty tarification seems to have affected those products, staple food items,
that are fundamental to food security.

The second step to adopting market access concessions involved WTO members agreeing
to bind the tariffs, including the newly converted tariffs. Tariffs subject to bindings (bound
tariffs) are tariffs that have a ceiling rate (a maximum rate) that is legally binding. In other
words, a WTO member cannot place a tariff on a product line that is higher than the bound
rate.1512 Developing countries had the option of nominating their own tariff ceiling.1513 As a
result of being able to choose their tariff ceiling, developing countries often settled on very high
tariff ceiling rates for commodities.1514 Even though developing countries have bound nearly 100
percent of their agricultural tariff lines, in reality the tariffs applied tend to be far below the
bound rate.1515

Developing countries set high ceiling rates on tariffs partly to ensure tariffs could be
increased when required.1516 Tariffs are a cheap and uncomplicated way for developing countries

1509
Healy, Pearce and Stockbridge, above n 1461, para 3.2.5.
1510
Merlinda D Ingco, ‘Tariffication in the Uruguay Round: How Much Liberalisation?’ (1996) 19 World Economy
425, 433.
1511
Ibid.
1512
Integrated Tariff Analysis System (ITAS) - Glossary (2014) Australian Government, Productivity Commission
<http://www.pc.gov.au/research/economic-models-frameworks/itas2/glossary>. If a member state raises a tariff
above the ceiling, then those member states adversely impacted upon can seek remedies through the WTO dispute
resolution process. See, Agreement on Agriculture arts 4-5.
1513
One reason that they were allowed to choose their ceiling rates is because developing countries previously made
major cuts to their import tariffs as required under the World Bank’s Structural Adjustment Program.
1514
‘World Tariff Profiles 2013’ (World Trade Organisation, United Nations Conference on Trade and Development
and the International Trade Centre, 2013) 4 <http://www.wto.org/english/res_e/booksp_e/tariff_profiles13_e.pdf>.
1515
Ramesh Sharma, ‘Developing Country Experience with the Key Policy Issues of the Uruguay Round Agreement
on Agriculture’ in Alex F McCalla and John Nash (eds), Reforming Agricultural Trade for Developing Countries:
Key issues for a pro-development outcome of the Doha Round negotiations (World Bank Publications, 2007) vol 1,
74.
1516
See, eg, Anwarul Hoda and Gulati, ‘Indian Agriculture, Food Security, and the WTO-AoA’ in Suresh Babu and
Ashok Gulati (eds), Economic Reforms and Food Security: The Impact of Trade and Technology in South Asia

364 Chapter 9: Trade

to ensure that their domestic farmers can compete with imports (with the flow on effects for food
security being the generation of income needed for economic access to food). Accordingly,
developing countries have tended to maintain high tariffs and high bound rates on basic foods in
order to protect the domestic production of staple foods.1517 At the same time, if governments
acted on their ability to impose higher tariffs then they could increase food prices paid by
consumers, thus, they could adversely affect economic access to food, particularly for the urban
poor.1518 In other words, domestic farm income may increase where a government raises tariff
rates on imported food, but the income of urban poor not involved in agriculture does not
increase along with changes in the price of food.

Because they have more financial resources, developed countries are not limited to tariffs
and they have a wider range of measures that they can adopt to protect food security beyond
tariffs.1519 Yet, partly because of dirty tarrification, even developed countries have tariff bindings
far higher than what they apply in practice.1520 These tariff bindings are particularly high for
value-added foods,1521 thus reinforcing the trend of developing countries having exports
concentrated on raw agricultural products without access to high value markets.1522

(CRC Press, 2005) 115, 118; Agriculture Negotiations Backgrounder- Domestic Support: Amber, Blue and Green
Boxes (1 December 2004) World Trade Organization
<http://www.wto.org/english/tratop_e/agric_e/negs_bkgrnd13_boxes_e.htm>.
1517
Sharma, above n 1505, 83.
1518
P Konandreas, ‘Module 10: Trade and Food Security: Options for Developing Countries’ in Multilateral Trade
Negotiations on Agriculture: A Resource Manual (Commodities and Trade Division, Food and Agriculture
Organisation of the United Nations, 2000) vol 2, 10.3.1
<http://www.fao.org/docrep/003/x7353e/X7353E00.htm#TopOfPage>.
1519
Ashok Gulati and Sudha Narayanan, ‘Managing Import Competition When Developing Countries Liberalize
Trade: India’s Experience’ in Alex F McCalla and John Nash (eds), Reforming Agricultural Trade for Developing
Countries: Key issues for a pro-development outcome of the Doha Round negotiations (World Bank Publications,
2007) vol 1, 220, 236 where the authors used the example of the United States where the Congress ‘authorized four
emergency packages of market-loss assistance payments during 1997-2001 totaling more than $34 billion’ to protect
farmer income despite dramatic decreases in market prices.
1520
See, eg, Anita Regmi et al, ‘Market Access for High-Value Foods’ (Electronic Report from the Economic
Research Service Number 840, United States Department of Agriculture, Economic Research Service, February
2005) <http://162.79.45.195/media/872283/aer840_002.pdf>.
1521
Value-added is ‘the process of taking a raw commodity and changing its form to produce a high quality end
product’. According to, What Is Value-Added? (2016) Robert M. Kerr Food & Agricultural Products Center,
Oklahoma State University <http://fapc.biz/valueadded> value-added is defined ‘as the addition of time, place,
and/or form utility to a commodity in order to meet the tastes/preferences of consumers’. Examples include turning
potatos into potato chips, ready-made meals and turning fruit into fruit juice.
1522
See, eg, Regmi et al, above n 1510.

Chapter 9: Trade 365

 (b) Tariff Reductions under the agreement on agriculture

Both the newly converted and pre-existing tariffs are subject to reduction commitments.
The specific reductions required are outlined in each state’s respective tariff schedule.1523
Significantly, tariff reduction commitments are based on the bound rate, that is, the maximum
tariff rate from the 1986-1988 period. This means tariff reductions do not apply to the tariffs that
applied in reality, but to the highest a tariff had been in the 1986-1988 period. As reduction
commitments apply to bound tariffs and not the tariffs applied in reality, only small reductions, if
any, are required in practice (binding overhang).1524 This is further aggravated by the far higher
bound rates applied as a result of dirty tarification. In fact, it is widely agreed that ‘[v]eyry little
trade liberalization seems to have occurred in the implementation period’.1525 Subsequently,
WTO members have implemented the AoA in a way that has allowed them to maintain
protections, thus, the potential for trade liberalisation to improve economic access to food has not
been realised.

1523
According to Agreement on Agriculture art 15(2), least-developed countries were excluded from having to make
tariff reductions. Bound tariffs on agricultural products had to be reduced by an average of 36% for developed
countries from 1995-2000 with a minimum tariff reduction of 15% required across each product (tariff line).
Developing countries had to reduce tariffs on agricultural products by 24% with a minimum of 10% reductions
across each tariff line. Agreement on Agriculture annex 5.
1524
Developed countries were able to secure high tariff bindings through use of dirty tariffication and the base
period selected. Dirty tarification occurred when members, particularly developed countries, ‘deliberately
overestimated the levels of protection provided by non-tariff barriers to trade in order to increase their operative base
rate of duty resulting from tariffication’, as described in Healy, Pearce and Stockbridge, above n 1461, para 3.2.5.
Ingco provided perhaps the most cited analysis of dirty tariffication. She found that the converted tariffs among both
developed and developing countries schedules were ‘…significantly higher than the wedge between actual domestic
and world market prices in the base period, hence affording higher protection then prevailed in 1986-1988’.
Furthermore, Ingco explained that the extent of dirty tariffication depends on the commodity and the country, but it
appears to have occurred the most for the commodities dairy, sugar and grains. See, Ingco, above n 1500, 433. In
relation to the base period of 1988-1986, the tariffs in place at this time were abnormally high, particularly in the EU
and US. This had the same impact of decreasing the amount of reductions required in practice. Developing countries
generally had high tariff bindings because they could choose tariff ceilings. See also, Dale Hathaway and Merlinda
Ingco, ‘Did Tariffication, Tariff Cuts, and Bindings Produce Liberalization?’ in Will Martin and Alan Winters (eds),
The Uruguay Round and the Developing Economies (The World Bank, 1995) 24 for an analysis on dirty
tariffication, the base period and developing countries choice of high tariff bindings.
1525
Harry De Gorter, Merlinda Ingco and Laura Ignacio, ‘Market Access: Economics and the Effects of Policy
Instruments’ in Merlinda Ingco and John Nash (eds), Agriculture and the WTO: Creating a Trading System for
Development (World Bank and Oxford University Press, 2001) 63, 66. Correspondingly, the OECD explained that
‘The empirical evidence suggests that the overall effects have been moderate.’ OECD, The Uruguay Round
Agreement on Agriculture An Evaluation of Its Implementation in OECD Countries: An Evaluation of Its
Implementation in OECD Countries (OECD Publishing, 2001) 11.

366 Chapter 9: Trade

 (c) Minimum and Current Market Access Commitments

As well as undertaking the tarification and binding process, WTO members agreed to
current and minimum access commitments. These commitments were a response to concerns that
the tarification and binding process would not address market access issues, particularly because
of the base period used to convert non-tariff barriers. In relation to current access, members
needed to ensure trade levels do not go below existing levels for agricultural products where
imports of that product were already meeting more than 5 per cent of domestic consumption
(‘current access quotas’).1526 In relation to minimum access opportunities, members were
required to create new import opportunities for agricultural products that were previously
blocked by non-tariff barriers. The aim was to reach a point where imports provided at least 5 per
cent of domestic consumption.1527

While the minimum import rule may provide market access opportunities for developing
countries, hence potentially improving economic access to food, it also limits the ability of states
and communities to determine their own level of food self-sufficiency and food self-reliance.
Some scholars see the minimum and current access rules as a breach of the right to self-
determination, yet the right to self-determination has been limited in human rights instruments.
For instance, the ICESCR states that people have the right to self-determination and this includes
to ‘freely dispose of their natural wealth and resources’ but such actions must be taken ‘without
prejudice to any obligations arising out of international economic co-operation, based upon the
principle of mutual benefit, and international law’.1528 In other words, because minimum access
provisions could mutually benefit the countries involved overall, they are unlikely to be
considered a breach of the right to self-determination.

1526
See, eg, Agriculture: Explanation of the Agreement - Market Access (2014) World Trade Organization
<http://www.wto.org/english/tratop_e/agric_e/ag_intro02_access_e.htm>. Food and Agriculture Organisation of the
United Nations, Multilateral Trade Negotiations on Agriculture: A Resource Manual (Rome, 2000), ch 5; Kym
Anderson, Harry de Gorter and Will Martin, ‘Market Access Barriers in Agriculture and Options for Reform’ in
Richard Newfarmer (ed), Trade, Doha, and Development: A Window into the Issues (World Bank, 2005) 85, 90.
1527
Minimum access opportunities are contained in Section I-B Part I of each Member’s Schedule. See also,
Agreement on Agriculture Annex 5, s A, [2]. Overall then, WTO members agreed to open up previously blocked
markets for particular agricultural goods to the point that exporters could supply at least 5 per cent of domestic
consumption by the year 2000 for developed and 2004 for developing countries. The volume of domestic
consumption during the base period 1986-88 was used to determine the required consumption increase.
1528
ICESCR art 1(2).

Chapter 9: Trade 367

 (d) Tariff-Rate Quota Administration

In order to meet current and minimum market access commitments, and to undertake the
tarification process, WTO members were encouraged to create tariff-rate quotas (TRQs) for
agricultural products. This involved WTO members creating a two-tier tariff structure for chosen
food products, that is made up of both quotas and tariffs, whereby the two approaches work
together to meet an agreed upon level of protection. For the first-tier, WTO members set a
specified quantity of agricultural goods that can be imported into a country at a reduced tariff
rate.1529 The second-tier provides that imports in excess of the quantity specified in the first-tier
will be subject to a higher tariff rate.1530 Such a system addresses issues of transparency and
overly-complicated tariff administration that can act as a non-tariff barrier to trade.

Because only a certain amount of imports are allowed under the lower tariff rate (first-tier),
this benefit must be allocated among exporters, which gives rise to issues of members giving
special treatment to certain traders.1531 Additionally, TRQs can act as an absolute quota, whereby
it is impossible to import more than the quota set under the first-tier because of the high tariff
applied to those imports exceeding the quota volume (second-tier).1532 As a result, WTO
members can use TRQ administration to limit the market share of particular traders or countries
and reinforce past trading relationships.1533 This is an issue for RBA to FS, which would be best
facilitated where developed and middle-income states give preferential treatment to imports from
least-developed countries (as in line with criterion 2).

1529
Devry Boughner, Harry de Gorter and Ian Sheldon, ‘The Economics of Two-Tier Tariff-Rate Import Quotas in
Agriculture’ (2000) 29 Agricultural und Resource Economics Review 58, 58.
1530
For more information, see Philip Abbott and Adair Morse, ‘Tariff Rate Quota Implementation and
Administration by Developing Countries’ (2000) 29 Agricultural and Resource Economics Review 115.
1531
See, eg, United States of America, ‘Proposal for Tariff Rate Quota Reform’, Submission to the Committee on
Agriculture of the World Trade Organization, G/AG/NG/W/58, 14 November 2000, 1.
1532
David Skully, ‘Liberalizing Tariff-Rate Quotas’ in Mary Burfisher (ed), Agricultural Policy Reform in the
WTO—The Road Ahead (Market and Trade Economics Division, Economic Research Service, U.S. Department of
Agriculture, 2001) 59, 59.
1533
Philip C Abbott, Tariff rate quotas: Failed Market Access Instruments? (Paper presented at77th EAAE Seminar /
NJF Seminar No. 325, Helsinki, 17-18 August 2001) 3 < http://ptt.fi/wp-content/uploads/2013/04/abbott.pdf>. For
example, resourced WTO members adopt a number of additional conditions for administering tariff quotas, and
these conditions can block or frustrate importers’ access to markets. For an example of administrative arrangements,
see Commonwealth, Department of Agriculture, Fisheries and Forestry, Response to ‘The review of administration
arrangements for the tariff- quota on European Union high quality beef’ (May 2012)
<http://www.agriculture.gov.au/SiteCollectionDocuments/ag-food/quota/red-meat/transfer-approval/draft-
government-response.pdf>.

368 Chapter 9: Trade

 The administration of TRQs remain highly complex and diverse systems that lack
transparency, uniformity and predictability, and such factors in turn limit trade.1534 Data
illustrates that market access has only minimally improved due to TRQs (and the minimum
access commitments discussed above).1535 For example, when comparing the difference between
the quota level in 1995 and the final quota level in 2000/2004, most food products have
experienced an increase in market access much less than 3 per cent of total world trade.1536

(e) Impact on Market Access

Research into the effects of the AoA on market access for agricultural products has
revealed that increased market access has been limited. For instance, the FAO reviewed the body
of work analysing the AoA’s impact in 16 developing countries and concluded that:

[f]ew studies reported improvements in agricultural exports in the post-UR period- the
typical finding was that there was little change in the volume exported or in
diversification of products and destinations…Food imports were reported to be rapidly
rising in most case studies. On the whole, a common observation was the asymmetry in
the experience between the growth of food imports and the growth of agricultural exports.
While trade liberalisation had led to an almost instantaneous surge in food imports, these
countries were not able to raise their export.1537

1534
Governments use a number of methods to administer tariff rate quotas, including applied tariffs, first-come, first-
served, licenses on demand, auctioning, historical importers. See, eg, World Trade Organization, A negotiating
proposal by Bulgaria, Czech Republic, Estonia, Georgia, Hungary, Kyrgyz Republic, Latvia, Slovak Republic,
Solvenia, Croatia and Lithuania, WTO Doc G/AG/NG/W/57 (14 November 2000) (Committee on Agricultural
Special Session) 2, where the members noted the ‘dramatic increase of trade deficits of transition economies,
particularly in agricultural products’ and noted that ‘in many instances the transitional economies export markets
remain closed despite the fact that single average tariffs may seem low, the reasons being the complexity of import
regimes consisting in a number of non-tariff measures’. Additional conditions that could limit trade include the
application process, eligibility criteria, fees and changes in the TRQ administration system.
1535
Only an estimated 61 per cent of quotas were filled from 2002 to 2011 according to World Trade Organization,
Tariff Quota Administration Methods and Fill Rates 2002-2011, WTO Doc TN/AG/S/26/Rev.1 (28 March 2013)
(Background Paper by the Secretariat) 3.
1536
Richard Pearce and Ramesh Sharma, ‘Module 5: Agreement on Agriculture Market Access II: Tariff Rate
Quotas’ in Multilateral Trade Negotiations on Agriculture: A Resource Manual (Commodities and Trade Division,
Food and Agriculture Organisation of the United Nations, 2000) vol 2, 75–76
<http://www.fao.org/docrep/003/x7353e/X7353E00.htm#TopOfPage>.
1537
Food and Agriculture Organization of the United Nations, Agriculture, Trade and Food Security: Issues and
Options in the Forthcoming WTO Negotiations from the Perspective of Developing Countries, session IIb
‘Experience with the implementation of the Uruguy Round Agreement on Agriculture - developing country
experiences (based on case studies)’ (24 September 1999) paras 10, 15-16.

Chapter 9: Trade 369

 Instead, research indicates that an increasing amount of agricultural exports from
developed countries have made it into developing countries’ markets, while developing countries
exports have reduced or remained the same. For instance, the UNCTAD reported that developed
countries had significantly increased their export of agricultural products between the years 1980
to 1996, while agricultural exports from developing countries declined from 31.7 per cent in
1970-1972 to 30.7 per cent by 1996-1997.1538

Data that is more recent illustrates that supply and demand of agricultural imports
increased between the years 2007-2012 in developing countries, while their exports to developed
countries remained stagnant.1539 These studies reflect the unequal ability of producers in
developed countries to gain access in developing countries. More broadly, it indicates that
farmers in developing countries have had to compete with imported products from developed
countries, while still having market access barriers to developed country markets.

Ultimately, WTO members have manipulated the provisions in the AoA related to market
access, and thus market access has not substantially improved. Consequently, the benefits of
trade liberalisation for a RBA to FS have not been realised. Instead, the food security status of
developing countries that are not large agricultural exporters has been weakened due to an
increasing reliance on the world market, difficulties obtaining market access and the
marginalisation of domestic production due to competition from imported goods.

9.4.1.2 Pillar Two: Domestic support

Domestic support, and in particular government subsidies, distorts trade and is a
particularly common market intervention in agricultural sectors due to the role agriculture plays
in domestic economies and the political influence of farming groups. Subsidies can be provided
to: supplement farmer or agribusiness income (price support), control the supply of food (eg
payments based on outputs), influence the cost of food and reduce the costs of production (eg
import subsidies).1540

1538
United Nations Conference on Trade and Development, The World Commodity Economy: Recent Evolution,
Financial Crises, and Changing Market Structures, 4th sess, UN Doc TD/B/COM.1/27 (16 July 1999) para 9.
1539
Valles, above n 1455, 8–13; Using data from, United Nations Commodity Trade Statistics Database, above n
1455.
1540
Satya Ranjan Swain, ‘Trade Externalities of Agricultural Subsidies and World Trade Organization’ (2009) 1
American Journal of Economics and Business Administration 225, 225.

370 Chapter 9: Trade

 Provision of domestic support is an issue for the sustainability dimension, that is, criterion
4, of a RBA to FS. For instance, domestic support can (and has) foster artificially high prices
and/or the mass production of food (eg through direct payments per unit produced). Domestic
support can also reduce production costs (eg through subsidised inputs), but this tends to support
the intensive use of the subsidised external inputs, and thus does not facilitate agroecology. For
instance, in the previous chapter on seeds, the distribution of subsidised, protected seed varieties
to small-scale farmers was a threat to informal seed systems and long-term food security. In fact,
due to the way in which governments have provided domestic support, the largest, most
industrialised producers benefit the most. de Gorter et al in a report for the World Bank
acknowledged that there is a ‘[s]erious concern related to equity; benefits go overwhelming to
large farms and corporations not to small or family farms’.1541

When trade is liberalised, domestic support by one country to its farmers and
agribusinesses can adversely affect the food security of other countries. This occurs when
domestic support results in cheaper and/or far larger amounts of food than would occur if the
market was functioning without government intervention (termed ‘dumping’). Food producers in
other countries then find it difficult to or are even unable to compete against these subsidised
products, both in their own domestic market and in international markets.1542 Subsequently,
artificially cheap food imports can disrupt domestic food production, leading to import
dependency and decreases in domestic production.1543

1541
Harry de Gorter, Merlinda Ingco and Laura Ignacio, ‘Domestic Support for Agriculture: Agricultural Policy
Reform and Developing Countries’ (Trade Note 7, The World Bank, 10 September 2003) 4.
1542
Panos Konandreas, ‘Global Governance: International Policy Considerations’ in Adam Prakash (ed),
Safeguarding Food Security in Volatile Global Markets (Food and Agricultural Organization of the United Nations,
2011) 329, 329.
1543
For instance, Kenyan institutions have performed studies regarding the barriers to the enhancement and growth
of small and medium enterprises in Kenya. The reason these enterprises are important to food security is because
they are a key generator of employment and goods and services in Kenya. These studies find that the key constraints
to the growth of such enterprises (which foster food security through economic access to food) are: shrinking
domestic markets due to globalisation, limited market information and the saturation of markets due to the
overproduction and dumping of cheap inputs. See, Mary Kiveu and G Ofafa, ‘Enhancing Market Access in Kenyan
SMEs Using ICT’ (2013) 2 Global Business and Economics Research Journal 29; Eliud Moyi et al, ‘Developing a
Marketing Framework for Micro and Small Enterprises in Kenya’ (KIPPRA Discussion Paper No. 60, Kenya
Institute for Public Policy, Research and Analysis, December 2006)
<https://www.academia.edu/8710130/Developing_a_Marketing_Framework_for_Micro_and_Small_Enterprises_in
_Kenya>; ‘Kenya Vision 2030: A Globally Competitive and Prosperous Kenya’ (Development Blueprint 2008-
2030, Government of the Republic of Kenya, October 2007) 71

Chapter 9: Trade 371

 At the same time, artificially cheap imports can benefit poor urban consumers through
increasing the availability and economic access of food. Yet, cheap food imports will not satisfy
the utilisation limb of food security if the food imported is energy-dense but nutrient poor; nor
will cheap imports promote long-term food security, in accordance with criterion 4 of a RBA to
FS, where imported food has been produced or processed in an unsustainable way.1544 A recent
report by the WHO contributed the obesity epidemic to the increased consumption of ultra-
processed foods, as such foods largely originate from corporations based in developed
countries.1545 It analysed data from 74 countries and found a ‘strong correlation between sales of
ultra-processed food products and market deregulation’.1546 This supports the hypothesis that,
while cheap food imports are good for short-term food security, they are adverse to long-term
food security.

(a) Reductions and Exemptions

Whether a WTO member needs to reduce a particular domestic support payment depends
on the nature of the payment and how it is categorised. Under WTO terminology, government
support can be categorised as Amber, Blue or Green Box payments.1547

Amber Box: Any measures under this box must be reduced. 1548 Reduction commitments
for payments falling under the Amber Box are contained in the members’ schedules and are
determined using the ‘Total Aggregate Measure of Support’ (Total AMS).1549 Generally, any

<http://www.researchictafrica.net/countries/kenya/Kenya_Vision_2030_-_2007.pdf>.
1544
Popkin and Gordon-Larsen, above n 94.
1545
‘Ultra-Processed Food and Drink Products in Latin America: Trends, Impact on Obesity, Policy Implications’
(Pan American Health Organization, World Health Organization, 2015)
<http://www.paho.org/hq/index.php?option=com_content&view=article&id=11180%3Aultra-processed-
foods&Itemid=1926&lang=en>.
1546
Ibid 12.
1547
In addition to the exemptions for payments that fall under Green or Blue Box measures, domestic support
payments will also be exempt where they are below the threshold value (5 per cent of the value of production for
developed and 10 per cent for developing). Agreement on Agriculture art 7(2)(b).
1548
Developed country members must reduce their Total AMS by 20 per cent over six years, while developing
country members must reduce their Total AMS by 13 per cent over 10 years. Additionally, non-exempt measures are
bound, that is, the future non-exempt domestic support cannot exceed a limit set in Part IV of the member’s schedule
to the AoA. See, Agreement on Agriculture arts 1(f), 6(3), 15(2).
1549
According to art 6(1) of the Agreement on Agriculture, WTO members that had non-exempt domestic support
during the base period must follow domestic support reduction commitments. Members without any non-exempt
domestic support during the base period are not able to maintain or introduce domestic support measures that fall
under the amber box according to art 7 of the Agreement on Agriculture. In relation to calculating the total AMS,
this involves determining what the sum of all domestic support provided by a member was during the baseline

372 Chapter 9: Trade

domestic support measures that do not meet the requirements for an exemption are categorised
under this box and must be reduced. These domestic support measures tend to be tied to the price
or the quantity produced (eg payments to make food cheaper or more expensive or payments for
producing a certain quantity).1550

Blue Box: Domestic support measures categorised under this box are exempt from
reduction commitments. In order to be in the Blue Box, payments must be delivered under
‘production-limiting programmes’ (eg payments provided for a fixed area, yield or animals).1551
Only a handful of WTO members continue to use Blue Box payments and key users now include
the EU, Norway and Japan.1552

Green Box: Domestic support measures categorised under this box are exempt from
reduction commitments. For a domestic support measure to be in the Green Box, a number of
elements contained in Annex 2(1) must be met.1553 To begin, the payment (or revenue forgone by
the government) must have no or only minimal trade-distorting effects or effects on
production.1554 Further, the state must provide the domestic support through a publicly funded

period. The sum of all domestic support measures is calculated by adding up all the aggregate measure of support
for each product-specific and non-product specific measures. Agreement on Agriculture art 1(h) defines Total
Aggregate Measure of Support as ‘the sum of all domestic support provided in favour of agricultural producers,
calculated as the sum of all aggregate measurements of support for basic agricultural products, all non-product-
specific aggregate measurements of support and all equivalent measurements of support for agricultural products’.
Annex 3 provides detailed instructions on how to calculate aggregate measure of support.
1550
One form of price support is where the state provides food producers with a guaranteed support price, such price
is generally higher than world market prices. When the market price for those food products fall, the government
will supplement the difference in order to protect farmers’ income. Other forms of domestic support that could fall
under the amber box include input subsidies and direct payments.
1551
Agreement on Agriculture art 6(5)(a). Note that payments need not fulfil a legitimate policy objective.
Essentially then, payments will be exempt if they are commodity-specific.
1552
See, eg, Margaret R Grossman, ‘The Uruguay Round Agreement on Agriculture and Domestic Support’ in
Michael Cardwell, Margaret R Grossman and C P Rodgers (eds), Agriculture and International Trade: Law, Policy,
and the WTO (CABI, 2003) 27, 40. Similar to market access commitments, states have been able to manipulate this
exemption and encompass payments that do encourage production. For example, McErlean et al reported that:
‘…the EU system of direct payments to beef farmers imposes “claim-limiting” restrictions rather than “production-
limiting” restrictions, allowing farmers to keep additional animals over and above the number upon which they are
eligible to claim direct payments’ Seamus McErlean et al, ‘Do EU Direct Payments to Beef Producers Belong in the
“Blue Box”?’ (2003) 47 Australian Journal of Agricultural & Resource Economics 55, 55. For similar results, see
Thia C Hennessy and Fiona S Thorne, ‘How Decoupled Are Decoupled Payments? The Evidence from Ireland’
(2005) 4 EuroChoices 30; Nick Beard and Alan Swinbank, ‘Decoupled Payments to Facilitate CAP Reform’ (2001)
26 Food Policy 121.
1553
Agreement on Agriculture Annex 2(1).
1554
In effect, ‘minimally trade distorting’ seems to be not directly trade distorting in practice. The AoA does not
define ‘minimally trade distorting’, and the OECD, above n 1515, 65.has observed that ‘…it is virtually impossible

Chapter 9: Trade 373

government programme and the domestic support measure must not provide price support to
producers or involve transfers from consumers (eg artificially increased prices for consumers).
Finally, the payment must ‘[p]rovide services or benefits to agriculture or the rural
community’.1555 Annex 2(2) provides a non-exhaustive list of payments that would fulfil this last
condition, this list includes payments for research, training, pest control, environment
programmes, domestic food aid and natural disaster relief.1556

(b) Green Box Measures

From these categories, it is the exemption provided by the Green Box that best promotes
and is consistent with a RBA to FS, and especially criterion 4 of a RBA to FS. The policy
concerns that are exempt from reduction commitments help maintain some of the regulatory
space that states require to facilitate a RBA to FS.

Developing countries that are not large agricultural exporters tend to be constrained in their
use of Green Box policies by resource scarcity and a weak rule of law.1557 Green Box measures
provided by developing countries have largely been generated from large agricultural exporters
including Brazil, China, and Thailand.1558 These WTO members have mainly funded general
services, including research and infrastructure. India and Cuba are also significant Green Box
spenders in comparison to the other developing countries, except they dedicate most of their
Green Box spending to short-term food security programmes such as domestic food aid, which
have a minimal impact on agricultural markets.1559 Meanwhile, the EU and the US are the

for domestic support measures to be fully delinked from production and trade’.
1555
Agreement on Agriculture Annex 2, art 2. Note that each listed programme (eg food aid, public stockholding)
has specific conditions that must be met for a payment to be considered exempt. For instance, a common
requirement is that such payments only be provided after a producer is found eligible according to clearly defined
criteria. See, Agreement on Agriculture Annex 2, art 9 provides that payments provided under retirement programs
for farmers must be paid according to a ‘clearly defined criteria’.
1556
Agreement on Agriculture Annex arts 2(2), 3-13.
1557
‘Trade Reforms and Food Security: Conceptualizing the Linkages’, above n 67, 94.
1558
‘Agricultural Subsidies in the WTO Green Box: Ensuring Coherence with Sustainable Development Goals’
(Information Note Number 16, International Centre for Trade and Sustainable Development, September 2009) 16, 7
<http://www.ictsd.org/downloads/2012/02/agricultural-subsidies-in-the-wto-green-box-ensuring-coherence-with-
sustainable-development-goals.pdf>.
1559
Biswajit Dhar, ‘Use of Green Box Measures by Developing Countries: An Assessment’ in Ricardo Meléndez-
Ortiz, Christophe Bellmann and Jonathan Hepburn (eds), Agricultural Subsidies in the WTO Green Box: Ensuring
Coherence with Sustainable Development Goals (Cambridge University Press, 2009) 369, 385.

374 Chapter 9: Trade

biggest users of Green Box exemptions and Japan is also a notable large user of the
exemptions.1560

WTO members and commentators allege that Green Box payments are misused by
countries with the resources to do so and in particular the US, Japan and the EU.1561 Expenditure
meeting Green Box criteria increased dramatically during the implementation period, whilst
expenditure falling under the Amber Box declined.1562 Moreover, food prices measured at the
farm gate in OECD countries are 30 per cent higher than the prices that they are traded for in the
world market, which suggests that substantial trade-distorting support is being provided.1563

In line with broader trends in agricultural support measures, Green Box payments are not
benefiting small-scale or more sustainable farms. In fact, 25 per cent of farmers in developed
countries, which is made up of the largest and most wealthy farmers, receive 90 per cent of all
payments provided by the US and 70 per cent of all payments provided by the EU. 1564 Between
the years 2005 and 2007, US support for agriculture was focused on only five export
commodities: soybeans, rice, wheat, cotton and corn. The International Centre for Trade and
Sustainable Development in a report on agricultural subsidies commented that:

1560
David Blandford and Timothy Josling, ‘Should the Green Box Be Modified?’ (IPC Discussion Paper,
International Food & Agricultural Trade Policy Council, March 2007) 28
<http://www.agritrade.org/Publications/DiscussionPapers/Green_Box.pdf>.Note ‘Agricultural Subsidies in the
WTO Green Box: Ensuring Coherence with Sustainable Development Goals’, above n 1548 where it is explained
that ‘In 2007, the US notifi ed US$76.2 billion in green box payments: however, of this, US$54.4 billion was on
domestic food aid, which is widely seen as assisting poor consumers at the national level and having relatively little
effect on international trade’.
1561
Proposal to the June 2000 Special Session of the Committee on Agriculture by Cuba, Dominican Republic,
Honduras, Pakistan, Haiti, Nicaragua, Kenya, Uganda, Zimbabwe, Sri Lanka and El Salvador, WTO Doc
G/AG/NG/W/14 (23 June 2000) 1-2; WTO Negotiations on Agriculture: Cairns Group Negotiating Proposal –
Domestic Support, WTO Doc G/AG/NG/W/35 (22 September 2000) 1; Shona Hawkes and Jagjit Kaur Plahe, ‘The
WTO’s Agreement on Agriculture and the Right to Food in Developing Countries’ (Working Paper 4/10, Department
of Management Working Paper Series, Monash University: Business and Economics, May 2010) 23, 6. OECD,
above n 1515, 57.
1562
OECD, above n 1515, 57. See also, ‘Agricultural Subsidies in the WTO Green Box: Ensuring Coherence with
Sustainable Development Goals’, above n 1548, 4.
1563
The Doha Development Round of Trade Negotiations: Understanding the Issues
<http://www.oecd.org/general/thedohadevelopmentroundoftradenegotiationsunderstandingtheissues.htm>; Jesús
Anton, ‘An Analysis of EU, US and Japanese Green Box Spending’ in Ricardo Meléndez-Ortiz, Christophe
Bellmann and Jonathan Hepburn (eds), Agricultural Subsidies in the WTO Green Box (Cambridge University Press,
2010) 137.
1564
The Doha Development Round of Trade Negotiations: Understanding the Issues, above n 1553.

Chapter 9: Trade 375

 Support in both the US and EU remains massively skewed towards large farms, and
towards a limited number of products. Even the most ‘decoupled’ Green Box
payments…continue to reflect historical inequalities in subsidy allocations. It is often
unclear how the structure and distribution of subsidy payments in fact serves social and
economic goals.1565

Evidently, Green Box payments provided by developed countries often benefit wealthy and
industrialised farms. The amount of support going to large, industrialised farms does not align
with criterion 4 of a RBA to FS, which instead requires a reduction in industrial farming
practices for long-term sustainable food security. Hence, government support should be directed
at small-scale and/or agroecological farms as part of a broader transition to more sustainable and
healthy food production systems.

In fact, the conditions that payments must satisfy to be an environmental programme under
the AoA (and thus exempt from reductions) are drafted in a way that does not facilitate farms that
are already sustainable. The AoA provides that payments under environmental programmes will
be exempt only if the amount of payment is ‘limited to the extra costs or loss of income involved
in complying with the government programme’.1566 This exemption is useful where governments
seek to create incentives for those practicing industrial agricultural methods because these actors
must take some actions to comply with the government’s environmental programme. Such
exemptions are not helpful where producers are already practising sustainable farming methods,
and thus income loss and costs incurred through complying with an environmental programme
are likely to be insignificant.1567

Farmers already practicing agroecology require different support under environmental

programmes (eg payments for carbon sequestration and the other environmental services they
foster) but this support may not be exempt from the reduction commitments of member states.

1565
‘Agricultural Subsidies in the WTO ‘Green Box’: An overview of the key issues from a sustainable development
viewpoint’(ICTSD draft background paper, International Centre for Trade and Sustainable Development, April
2007) 11.
1566
Agreement on Agriculture Annex 2, art 12(b).
1567
Christophe Bellmann and Jonathan Hepburn, ‘Overview’ in Ricardo Meléndez-Ortiz, Christophe Bellmann and
Jonathan Hepburn (eds), Agricultural Subsidies in the WTO Green Box: Ensuring Coherence with Sustainable
Development Goals (Cambridge University Press, 2009) 1, 10; Ronald Steenblik and Charles Tsai, ‘The
Environmental Impact of Green Box Subsidies: Exploring the Linkages’ in Ricardo Meléndez-Ortiz, Christophe
Bellmann and Jonathan Hepburn (eds), Agricultural Subsidies in the WTO Green Box: Ensuring Coherence with
Sustainable Development Goals (Cambridge University Press, 2009) 427, 460.

376 Chapter 9: Trade

However, payments related to training, advisory or infrastructural services are exempt.
Depending on how governments implement them, these payments could benefit farms that are
already sustainable given that agroecology is knowledge-intensive, and thus requires the
continual building and sharing of relevant knowledge. For instance, payments to fund the
training of farmers in integrated pesticide management would be considered exempt from
reduction commitments.

Overall, payments made under the Green Box have not effectively facilitated progress
towards a RBA to FS, as such an approach requires a more equal distribution of green box
support (criterion 3) and specific exemptions for payments aimed at facilitating agroecological
farming methods (criterion 4).1568 While the drafting of the AoA could have been improved, it is
largely up to governments to determine how they will make Green Box payments. The
exemption provided to Green Box payments is critical for a RBA to FS, as it maintains the
regulatory space of governments to support environmental and development programmes,
Furthermore, there is some qualitative evidence of the environmental benefits that have stemmed
from Green Box measures.1569 To be more consistent with a RBA to FS, future agricultural trade
agreements should be more explicit about the kinds of farms and environmental programs that
can receive unreduced domestic support.

(c) Implementation of Pillar Two

Although the AoA requires reductions in domestic support for agriculture, subsidies still
substantially distort agricultural trade. This is evidenced by the fact that members have met their
reduction commitments while managing to increase their overall domestic support.1570 The latest
figures, which were taken from 2012, showed that agricultural subsidies totalled US$486 billion
in 2012. The top five countries providng the most support to agriculture are China ($165 billion),

1568
Integrated Tariff Analysis System (ITAS) - Glossary, above n 1502.
1569
Steenblik and Tsai, above n 1557, 460.
1570
WTO Negotiations on Agriculture: Domestic Support - Additional Flexibility for Transition Economies, WTO
Doc G/AG/NG/W/56 (14 November 2000)(A negotiating proposal by Albania, Bulgaria, Croatia, the Czech
Republic, Georgia, Hungary, the Kyrgyz Republic, Latvia, Lithuania, Mongolia, Slovak Republic and Slovenia) 1-2.

Chapter 9: Trade 377

the EU ($106 billion), Japan ($65 billion), the United States ($30 billion) and Indonesia ($28
billion).1571

Emerging economies (and some developing) are increasingly providing domestic support
for agriculture. Nevertheless, the provision of domestic support is still chiefly concentrated in
developed countries that are large agricultural exporters. In fact, government subsidies to farmers
in developed countries have continually risen since 1986,1572 and domestic support in developing
countries tends to be far less than developed countries with the exception of a few emerging
economies. The OECD reports that around one-sixth of farm gross receipts in OECD countries
are a result of domestic support,1573 and 60 per cent of payments made by OECD countries to
farms or agribusinesses are excluded from reduction commitments.1574 Moreover, Orden et al
found in their analysis of WTO notifications regarding domestic support that:

Notifications even by the largest agricultural producing and trading countries have
sometimes been delayed for many years….the timing and length of some delays appear to
reflect strategic decisions….the WTO notifications often fail to provide accurate and
meaningful measurements of economic support provided to producers.1575

Subsequently, domestic support may be substantially higher in reality than what WTO
members report, because domestic support can be effectively disguised or inaccurately reported
to the WTO or OECD.1576

The maintenance and increase by certain developed countries (and perhaps even in some
emerging economies) of domestic support is an issue for a RBA to FS in two main ways. Firstly,

1571
Grant Potter, Agricultural Subsidies Remain a Staple in the Industrial World (28 February 2014) Worldwatch
Institute <http://vitalsigns.worldwatch.org/vs-trend/agricultural-subsidies-remain-staple-industrial-world>.
1572
John Baffes and Harry de Gorter, ‘Experience with Decoupling Agricultural Support’ in M Ataman Aksoy and
John C Beghin (eds), Global Agricultural Trade and Developing Countries (World Bank Publications, 2004) 75, 88.
1573
‘Agricultural Policy Monitoring and Evaluation’ (Organisation for Economic Co-operation and Development, 4
September 2014) 27. Gross farm receipts essentially reflect the value of transfers to producers through policies
combined with the value of production. ‘The Uruguay Round Agreement on Agriculture: An Evaluation of
Implementation’ (Organisation for Economic Co-operation and Development, 2001) 8.
1574
‘The Uruguay Round Agreement on Agriculture: An Evaluation of Implementation’ (Organisation for Economic
Co-operation and Development, 2001) 8.
1575
David Orden et al, ‘WTO Disciplines on Agricultural Support: Experience to Date and Assessment of Doha
Proposals’ (IFPRI Research Brief 16, International Food and Policy Research Institute, May 2011) 8, 4.
1576
Andre Nassar et al, ‘Agricultural Subsidies in the WTO Green Box: Opportunities and Challenges for
Developing Countries’ in Ricardo Meléndez-Ortiz, Christophe Bellmann and Jonathan Hepburn (eds), Agricultural
Subsidies in the WTO Green Box: Ensuring Coherence with Sustainable Development Goals (Cambridge University
Press, 2009) 329, 341.

378 Chapter 9: Trade

it means that the supposed benefits of trade liberalisation for food security are not being realised.
In fact, the developing countries that reduced support (or cannot provide such support) while
others have maintained or increased their support are at a particular disadvantage. Secondly,
because some developed countries are exporting artificially cheap food, their exports can and
have disrupted domestic food production, in particular developing countries, leading to import-
dependency.1577 This represents a lost opportunity for market access to improve the income of
poor, small-scale and rural farmers in developing countries. Furthermore, import dependency in
developing countries is a concern given their typically agricultural-dependent economies and the
increasingly volatile nature of international food prices. Importantly though, any hasty reductions
in the domestic support provided in developed countries is going to be problematic for those
households and countries now dependent on artificially cheap food.1578 Therefore, substantial
changes in domestic support measures must be gradual.

9.4.1.3 Pillar Three: Export competition

Under the AoA, WTO members were able to continue their pre-existing export subsidies in
their agricultural sectors, but were required to reduce subsidised export quantities and the amount
of money spent on export subsidies.1579 The AoA defines export subsidies as those subsidies that
are ‘[c]ontingent on export performance’,1580 and it provides a comprehensive list of export
subsidy practices that are subject to reduction commitments.1581

For all members, the AoA prohibits the introduction of new export subsidies. Therefore, if a
country did not have export subsidies in place when the AoA was negotiated, then they can no

1577
Gonzalez, ‘Institutionalizing Inequality’, above n 42.
1578
For a detailed analysis, see eg, Timothy Wise, The Paradox of Agricultural Subsidies: Measurement Issues,
Agricultural Dumping, and Policy Reform (Working Paper No. 4-2, Global Development and Environment Institute,
2004); Anne Effland, United States Department of Agriculture, Classifying and Measuring Agricultural Support:
Identifying Differences between the WTO and OECD Systems (Economic Information Bulletin Number 74, March
2011) < http://www.ers.usda.gov/media/129064/eib74.pdf> accessed 3 November 2014.
1579
Agreement on Agriculture art 9(1)(a)-(f), (2).
1580
Agreement on Agriculture art 1(e).
1581
This list is contained in the Agreement on Agriculture art 9.1(a)-(f). It includes: direct export subsidies; payments
on the export of an agricultural product that are financed by virtue of government action including payments on an
agricultural product from which the exported product is derived (eg potatoes into potato chips); subsidies that reduce
the costs of marketing exports including those related to processing and distribution; internal transport subsidies that
apply to exports only; and subsidies that are provided if the agricultural product is to be incorporated into processed
food for export.

Chapter 9: Trade 379

longer introduce them; those who had export subsidies in place can continue to provide the
payments as long as they reduce them.1582

In practice, this ban on new export subsidies tends to disadvantage developing countries.
Developing countries generally did not provide export subsidies before the AoA due to a lack of
resources or because they removed export subsidies to satisfy the conditions on their loans from
the World Bank and IMF. Mostly developed states had export subsidies in place before the AoA,
and so in compliance with the AoA, these countries were able to keep providing export subsidies.
In fact, out of the 135 States who are signatories to the AoA, only 25 of these have the right to
keep subsidising exports, and most of these are developed countries.1583 Moreover, the EU
provides 90 per cent of all export subsidies from OECD countries.1584 Consequently, the current
export competition provisions favour those countries with a historical ability to provide financial
and institutional support for producers.1585

Developed countries have various motives for providing export subsidies. For instance, a
country may provide an export subsidy to supply food aid to food insecure countries, to support
their export industry or to stabilise domestic food prices by removing excess stock.1586 In
contrast to the market access and domestic support pillars, the export competition pillar contains
an anti-circumvention provision that explicitly prohibits the misuse of the export competition
provisions.1587 Significantly, the anti-circumvention measure focuses on food aid and seeks to
ensure that ‘[t]he provision of international food aid is not tied directly or indirectly to
commercial exports of agricultural products to recipient countries’.1588 This reflects the
difficulties inherent in preventing WTO members from disguising cheap, export-subsidised
surplus stock as food aid, while ensuring that legitimate food aid continues.

1582
Agreement on Agriculture art 3(3) where it provides that export subsidies ‘in excess of budgetary outlay and
quantity commitment levels’ are prohibited.
1583
Christopher Stevens, The WTO Agreement on Agriculture and Food Security (Commonwealth Secretariat, 2000)
47.
1584
Per Pinstrup-Andersen and Derrill D Watson II, Food Policy for Developing Countries: The Role of
Government in Global, National, and Local Food Systems (Cornell University Press, 2011) 286.
1585
This inequality was cited as an issue during the negotiations of the Agreement on Agriculture and remains today.
See, eg, Richard Pearce and R Sharma, ‘Module 3: Export Subsidies’ in Multilateral Trade Negotiations on
Agriculture: A Resource Manual (Food and Agriculture Organization of the United Nations, 2000)3.6.
1586
‘Agricultural Subsidies in the WTO Green Box: Ensuring Coherence with Sustainable Development Goals’,
above n 1548, 2.
1587
Agreement on Agriculture art 10(1)-(2).
1588
Agreement on Agriculture art 10(4)(a).

380 Chapter 9: Trade

 Again, reductions in export subsidies by those countries legally obligated to has been
relatively minor.1589 The Cairns Group alleges that the EU and the US together provide US$10
billion in export subsidies per year.1590 In the 2005 Hong Kong Ministerial Declaration, the WTO
members agreed to ‘[e]nsure the parallel elimination of all forms of export subsidies and
disciplines on all export measures with equivalent effect to be completed by the end of 2013’.1591
This objective has not been achieved.1592 In fact, the US and the EU have criticised for
reintroducing export subsidies in recent years.1593

However, eliminating or significantly reducing export subsidies is not necessarily going to

have a positive impact on food security in developing countries. If the EU, for example, were to
eliminate export subsidies, food prices would increase or decrease depending on the
commodity.1594 In fact, research by Kerkela et al indicates that ‘The beneficiaries of export
subsidy elimination are large exporters of agricultural goods whereas the losers are net [food]
importers, including most developing countries’.1595 These large exporters of agricultural goods
include those in the Cairns Group that seek further trade liberalisation.

This leads to the complicated situation where domestic support of exports provides short-
term food security for import-dependent developing countries, but threatens long-term food
security by eroding the food production abilities of these countries. Nevertheless, developing
countries tend to support the elimination of export subsidies despite the potential for this to

1589
Australia Slams US Dairy Export Subsidy, The Sydney Morning Herald <http://news.smh.com.au/breaking-
news-national/australia-slams-us-dairy-export-subsidy-20090523-biuh.html>.
1590
Cairns Group, Export Subsidies: Detrimental to Developing Country Exports (2010)
<cairnsgroup.org/DocumentLibrary/export_subsidies.pdf>.
1591
Ministerial Declaration, WTO Doc WT/MIN(05)/DEC (22 December 2005) (Doha Work Programme) para 6.
1592
Export Competition, WTO Doc: WT/MIN(13)40, WT/L/915 (11 December 2013) (Ministerial Declaration of 7
December 2013) 1.
1593
Australia Slams US Dairy Export Subsidy, above n 1579; ‘End the Use of Export Subsidies in the 2013 CAP
Review | CAP Reform’ <http://capreform.eu/end-the-use-of-export-subsidies-in-the-2013-cap-review/>.
1594
See, eg, Susan Lleetmaa, ‘Effects of Eliminating EU Export Subsidies’ (Background for Agricultural Policy
Reform in the WTO: The Road Ahead ERS-E01-001, USDA, Economic Research Service, May 2001)
<http://www.ers.usda.gov/media/908020/aer802k_002.pdf> where the author concluded that ‘The impact on world
markets would be felt mainly in the wheat and pork sectors. In the case of wheat, world prices would decline as EU
exports increased following production shifts out of less competitive crops. Conversely, world pork prices would
increase as EU exports decline’.
1595
Leena Kerkela, Heikki Lehtonen and Jyrki Niemi, ‘The Impacts of WTO Export Subsidy Abolition on the Agri-
Food Industry in the EU: A Preliminary Assessment.’ (Discussion Paper, Finland, Government Institute for
Economic Research, December 2005) 47, 30 <https://www.vatt.fi/file/vatt_publication_pdf/k375.pdf>.

Chapter 9: Trade 381

adversely impact on short-term food security.1596 This is because export subsidies affect the
ability of developing countries to competitively export agricultural goods and further expose
developing countries to food insecurity from food market instability. Accordingly, developing
countries are seeking the benefits that trade liberalisation can have on farmer income levels and
the benefits of cheap imports are seen as insubstantial, short-term and volatile.1597 This seems to
align with a RBA to FS, given the need for stability and because increased market access may
improve the food security status of small-scale farmers in developing countries (consistent with
criterion 2).

9.4.1.4 Special safeguard measures

WTO members can be exempt from particular provisions of the AoA in order to protect
themselves from certain situations, including where there are instances of unfair competition or
where it is necessary to counteract a surge of imports.1598 Essentially, these safeguards allow
WTO members to temporarily freeze their obligations under the AoA and other WTO
agreements. WTO members can then impose taxes on particular imports in order to counteract
the unfair competition or the influx of imports. This is relevant to food security because such
safeguards may alleviate issues related to the importation of artificially cheap food that disrupts
domestic production.

As an example, Article 5 of the AoA contains a special safeguard mechanism,1599 which

was designed to lessen the adverse effects of the agricultural trade liberalisation process.
However, only those products that went through the tarification process and were marked with
‘SSG’ in a member’s schedule are subject to the safeguard provisions.1600 As many developing
countries did not need to undertake tarification for products, they are unable to use the safeguard

1596
Luke Brander and Kirsten Schuyt, ‘Benefits Transfer: The Economic Value of World’s Wetlands’ (The
Economics of Ecosystems and Biodiversity, 2010) 14 <http://www.teebweb.org/wp-content/uploads/2013/01/The-
economic-value-of-the-worlds-wetlands.pdf>.
1597
Ibid.
1598
In these situations, WTO members can employ temporary measures that are exempt under other WTO
agreements including the agreements pertaining to anti-dumping measures and subsidies and counterveiling
measures.
1599
Agreement on Agriculture art 5(1). For perishable or seasonal goods, art 5(6) provides that shorter time periods
can be applied for both volume-based and price-based safeguards.
1600
Agreement on Agriculture art 5(1).

382 Chapter 9: Trade

provisions to protect against import surges or artificially low import prices that undermine
domestic food production.1601

Countries with the largest amount of products that could be subject to the special
safeguards include Switzerland-Liechtenstein (961 products); Norway (581 products) and the EU
(539 products).1602 During the AoA’s implementation, and in no particular order, the US, the EU,
Poland and Japan tended to apply the most special safeguard measures.1603 Similar to the three
pillars of the AoA then, the provisions have tended to benefit developed countries, while leaving
developing countries in a dependent position more vulnerable to international price fluctuations
and the misuse of the AoA by other members.

9.5 AGREEMENT ON AGRICULTURE, A RIGHTS-BASED APPROACH TO FOOD

SECURITY AND REFORM RECOMMENDATIONS

The previous section outlined the provisions of the AoA and highlighted issues for a RBA
to FS in terms of how WTO members drafted and implemented provisions. This section provides
a critique of the kind of agricultural trade liberalisation that the AoA has enabled against the
criteria for a RBA to FS established in Chapter 3, which was elaborated on in the context of trade
in section 9.2.3 of this chapter. The aim of this section is to analyse the broader issues not
covered by the general overview of trade liberalisation and a RBA to FS in section 9.2.2 or by
the analysis of the AoA’s substantive provisions in section 9.4. The discussion here feeds into
reform suggestions that, if enacted, may make agricultural trade liberalisation more compatible
with a RBA to FS.

1601
See, eg, Alan Swinbank, ‘Dirty Tariffication Revisited: The EU and Sugar’ (2004) 5 The Estey Centre Journal
of International Law and Trade Policy 56, 65–66 where Swinbank explained ‘Accordingly the EU has determined
trigger prices of 413 and 531 ecu/tonne for raw and white sugar respectively. This has meant that the Special
Safeguard provisions for sugar imports into the EU have been permanently invoked since the implementation of
tariffication in 1995.’; David Harris, ‘Special Safeguards and Agricultural Trade Liberalisation: Global
Competitiveness R&D Program’ (RIRDC Publication No 08/125, RIRDC Project No DAH-4A, Australian
Government, Rural Industries Research and Development Corporation, July 2008) 23–28, 40–43
<http://www.apec.org.au/docs/08_SSG_DH.pdf>.
1602
Agriculture Negotiations: Backgrounder. Market Access: Special Agricultural Safeguards World Trade
Organization <http://www.wto.org/english/tratop_e/agric_e/negs_bkgrnd11_ssg_e.htm>.
1603
Special Agricultural Safeguard, WTO Doc G/AG/NG/S/9/Rev.1 (Background Paper by the Secretariat) (19
February 2002) Table 1.1.

Chapter 9: Trade 383

9.5.1 Failure to Address Pre-Existing Inequalities
As discussed, for a trade agreement to align with criterion 2 of a RBA to FS it must seek to
address the pre-existing inequalities between developed and developing states. Criterion 2 of a
RBA to FS requires special treatment for countries that are food insecure or have food insecure
populations dependent on agriculture. As evidenced in the previous section though, the AoA
reflects the political interests of resourced WTO member states, which had the effect of
reinforcing pre-existing inequities between WTO members.1604 The way in which the AoA was
negotiated, drafted and implemented has limited the potential benefits that could flow from trade
liberalisation to facilitate a RBA to FS, while aggravating the negative impacts that trade
liberalisation can have on food security at national and household levels.

Certain developed countries, particularly the EU and the US, have overall maintained or
increased their protectionist measures often by misusing the provisions of the AoA. Moreover,
the provisions in the AoA tend to be lenient on those countries with high amounts of trade
protections in place (eg in the case of export subsidies and the exemption for Blue Box
measures). The distortion of the agricultural markets in the EU and the US continues to cause the
overproduction of food, and thus the dumping of artificially cheap foods on the world market.
Cheap agricultural imports have affected domestic agriculture in developing countries, as around
20 developing countries switched from being net agricultural exporters to net agricultural
importers between the years 2000 and 2009.1605

Developing states (except perhaps those that are large agricultural exporting states) do not
have the resources to protect their agricultural sector in the same way as the EU and the US or as
other developed countries. Along with a lack of resources to provide support, a significant

1604
This point links in with Third World Approaches to International Law and the literature that surrounds this
approach. 1604 Third World Approaches to international law examine how international law further strengthens and
reinforces imperialism. For instance, in B S Chimni, ‘Third World Approaches to International Law: A Manifesto’
(2006) 8 International Community Law Review 3, 5 the author explained that, ‘Today, international law prescribes
rules that deliberately ignore the phenomena of uneven development in favor of prescribing uniform global
standards’. See also, John D Haskell, ‘TRAIL-Ing TWAIL: Arguments and Blind Spots in Third World Approaches
to International Law’ (2014) 27 Canadian Journal of Law and Jurisprudence 383, 389 where the author explained
that, ‘For TWAIL scholars, the slow political emancipation of formerly colonized countries mitigated the overtly
racist, territorial conquest of non-European peoples by great states in Europe, but led to the innovation of new forms
of domination that shifted the location of violence from the political to the economic spheres of international
relations’.
1605
Valdes and Foster, above n 683, 9.

384 Chapter 9: Trade

number of developing countries were required to liberalise trade significantly in accordance with
structural adjustment programmes or SAPs prior to the AoA (which Chapter 2 discussed).1606
Carolan observed that:

…developing countries were required to eviscerate many of their government-funded

initiatives such as their agricultural credit programs…which helped small-scale farmers
tremendously [while] subsidy levels in the industrialised countries increased after the AoA
came into effect.1607

SAPs required the removal or reduction of, for instance, producer prices, public
environmental programmes, public marketing and input subsidies.1608 In fact, developing
countries cut the average tariffs applied to agricultural imports from 30 per cent to 18 per cent
over the years 1990 to 2000.1609 Going into the AoA negotiations then, developing states tended
to have more liberalised trade and less resources to provide support compared to developed
states. Yet, developing states are exactly the states that need to be able to support agriculture, as
these are the states with less productive agriculture and where chronic undernourishment is a
particularly significant issue in rural, farming areas.

It is clear that the SDT provisions have not enabled developed and developing countries to
compete fairly in world agricultural markets.1610 The AoA’s SDT provisions are largely limited to
longer transition periods and reduced obligations, yet developing countries have resource and
institutional constraints that mean these flexibilities are not used to their full potential for food

1606
Hawkes and Plahe, above n 1399; Gonzalez, ‘Institutionalizing Inequality’, above n 42; Gonzalez, ‘International
Economic Law and the Right to Food’, above n 42; Nassar et al, above n 1566; Healy, Pearce and Stockbridge,
above n 1461; Sharma, above n 1505.
1607
Michael S Carolan, Reclaiming Food Security (Taylor and Francis, 2013) 28.
1608
For instance, see e.g., Healy, Pearce and Stockbridge, above n 1461 para 5.5 states that ‘The structural
adjustment reforms undertaken have encouraged greater reliance on private sector activities as well as fiscal and
monetary austerity. Increased competition to foreign competition has been often a key feature. The tariffication
process and the other commitments of the Agreement have, on the whole, reinforced this process’.
1609
M Ataman Aksoy, ‘Global Agricultural Trade Politics’ in M Ataman Aksoy and John C Beghin (eds), Global
Agricultural Trade and Developing Countries (The World Bank, 2005) 37, 42.
1610
Referring to the AoA as based on the illusory notion of a ‘level playing field’, De Schutter explained that:
At the heart of what justifies special and differential treatment for developing countries [is this]: even after
the removal of existing trade-distorting measures, which currently are disproportionately benefiting
developed countries, the productivity per active labourer in agriculture will remain much lower in
developing countries, on average, then in developed countries.
See, Olivier de Schutter, United Nations Human Rights Council, Report of the Special Rapporteur on the Right to
Food: Mission to the World Trade Organization, A/HRC/10/5/Add.2 (4 February 2009) 9.

Chapter 9: Trade 385

security purposes.1611 Accordingly, the SDT provisions provided some limited special
protections for developing states against the harmful effects of trade liberalisation, which is
somewhat consistent with criterion 2 of a RBA to FS; but the SDT provisions did not create an
enabling environment for developing states to realise the benefits of trade liberalisation for food
security or human rights.

SDT provisions lump together all developing states, so that large agricultural middle-
income states are treated the same as least-developed and net-food-importing states.1612 While
least-developed and net-food-importing developing countries require more support and
flexibilities in line with criterion 2 of a RBA to FS, large agricultural exporters arguably do not
need SDT, as they are analogous to developed countries in terms of market access, export
infrastructure and market knowledge.1613 Hence, the AoA’s SDT provisions are not ‘reasonable,
objective or proportionate’.1614 Instead, large agricultural exporters would benefit the most, in
terms of an increased economic access to food, from the removal of the trade distortions adopted
in developed countries.1615

A practical way to achieve such an approach to SDT provisions has been put forward by
various scholars and some WTO member states. They recommend that each developing member
state should have customised SDT provisions, which could be contained in the schedules to an
agreement.1616 According to this recommendation, the customised SDT provisions would be
determined using the findings of independent assessments on each state’s capacity to, for

1611
Sutrisno, above n 1480; Hoekman, above n 1479.
1612
Keck and Low, above n 1480.
1613
C F Gonzalo Fanjul, ‘Agriculture and Trade in an Asymmetric World’ (Discussion Paper No.3, Heinrich-Böll-
Stiftung Foundation; Misereor, Mozartstr; Wuppertal Institute for Climate, Environment and Energy, December
2006) 28 <http://www.peacepalacelibrary.nl/ebooks/files/BOELL_Fanjul_Agriculture-Trade_e.pdf> where the
author explained that ‘The rationale given by rich countries for graduating DCs is that the country no longer needs
SDT measures to promote development. However, analysis of the countries targeted reveals that rich countries are
pushing for their graduation because they are competitive exporters in certain products and they constitute
potentially lucrative markets, rather than based on assessment of the country’s level of poverty, development and
human welfare. The countries most often cited by rich countries as candidates for graduation are China, India,
Brazil, and South Africa, although Singapore, Korea, and others also get mentioned’.
1614
Olivier De Schutter, Guiding Principles on human rights impact assessments of trade and investment
agreements, Human Rights Council,19th sess, Agenda Item 3, UN Doc A/HRC/19/59/Add.5 (19 December 2011)
para 2.5.
1615
As suggested in, Constantine Michalopoulos, ‘Rules and Options for Special and Differential Treatment’ in
Merlinda Ingco and John D Nash (eds), Agriculture and the WTO (World Bank Publications; Oxford University
Press, 2004) 269.
1616
See, eg, Special and Differential Treatment Provisions, WTO Doc TN/CTD/W/3/Rev.2 (17 July 2002) (Joint
Communication from the African Group in the WTO) [13], [24];

386 Chapter 9: Trade

instance, partake in agricultural trade and ensure the benefits of trade liberalisation reach the
most marginalised groups.1617 To be consistent with a RBA to FS, assessments carried out for
determining SDT provisions should be required to incorporate human rights principles, including
the involvement of marginalised farming communities (criterion 2 and 3).

The Doha Declaration, which outlines the agenda for the current trade negotiations, notes
that SDT provisions should be integrated into all parts of the negotiations.1618 Proposals from
WTO members, especially those from the African Group and the Group of Least-Developed
Countries, have provided numerous recommendations regarding the reform of SDT provisions
and the formulation of new SDT provisions.1619 Consequently, improvements to SDT provisions
are likely in the future.

In line with reforming SDT provisions, agricultural trade agreements should allow low-
income states with agricultural-based populations to be more protectionist within set limits. This
is because the improvement of food security in developing countries, where their economies are
concentrated on the agricultural sector for food, employment and income, depends on the
development of local food systems and agriculture.1620 Specifically, SDT provisions should
allow least-developed or net-food importing developing countries to enforce protectionist
measures for the purposes of facilitating local food production in food insecure areas. Such an
approach is compatible with the special protections and support required under criterion 2 of a
RBA to FS for vulnerable countries or groups. It would also help realise a more equitable trading
system by improving market access for marginalised producers, and at the same time, increase
food insecure, small-scale farmers’ economic access to food.

1617
See, for instance, Philipp Scheuermann, Normative Conditions to Make WTO Law More Responsive to the
Needs of Developing Countries (Herbert Utz Verlag, 2010) ch 8 where the author describes SDT provisions as blunt
instruments and discusses various approaches to making SDT provisions more suitable for addressing particular
needs of developing countries. Specifically, Scheurmann discusses establishing objective criteria to determine the
kinds of SDT provisions each developing member state requires ; See also, Constantine Michalopoulos, ‘Special and
Differential Treatment in Agriculture’: (2003) 34 IDS Bulletin 24; Keck and Low, above n 1480, 25; Fanjul, above n
1603.
1618
Ministerial Declaration, WTO Doc WT/MIN(01)/DEC/1 (20 November 2001) (Doha Declaration- WTO
Ministerial 2001) paras [13], [44].
1619
For an overview of the submissions received, see eg, Report to the General Council, WTO Doc TN/CTD/7 (10
February 2003) (Committee on Trade and Development Special Session).
1620
Diouf, above n 1449, iii.

Chapter 9: Trade 387

 At the same time, an agricultural trade agreement must obligate developed states to
liberalise their agriculture further in order to help ‘level the playing field’ and to reduce their
trade distorting practices that lead to the overproduction and subsequent dumping of food. On
this point, Stevens explained that: ‘Most OECD states, for example, need to scale back the huge
direct and indirect subsidies that distort their agriculture; in many developing countries the
problem is the exact opposite: inadequate support has led to agricultural underproduction’.1621
Fortunately, as discussed, this situation can be corrected and in doing so international agricultural
trade law can be made more consistent with criterion 2 of a RBA to FS.

Garcia points out that for trade liberalisation to work for human rights it will require ‘the
implementation of a more fully developed form of global wealth distribution’.1622 To put it
differently, for trade liberalisation to effectively contribute to a RBA to FS, a broader wealth
distribution scheme is required more than merely reforming SDT provisions. While there are
more controversial ways to envisage a wealth distribution scheme, creating binding targets for
investments in rural infrastructure and agriculture in least-developed countries would be a
targeted method to facilitate a RBA to FS that is not too politically divisive.

There has been a low level of investments in rural infrastructure in developing countries by
both public and private actors.1623 A recent report by the World Bank estimated that a total of
US$836 billion per year over 2014-20 needs to be invested into the development and
maintenance of infrastructure in developing and emerging economies.1624 According to these
estimates, a $452 billion gap exists between what countries actually spent on infrastructure and
what is required to meet needs.1625 Other estimates place the figure in the trillions.1626 Thus,

1621
Christopher Stevens, ‘From Doha to Cancun: Special and Differential Treatment’ (Institute of Development
Studies, June 2003) < http://www.ids.ac.uk/IDS/global/pdfs/Stevens_Doha.pdf> 9.
1622
Frank J Garcia, ‘Beyond Special and Differential Treatment’ (2004) 27 Boston College International and
Comparative Law Review 291, 316.
1623
Per Pinstrup-Andersen and Satoru Shimokawa, ‘Rural Infrastructure and Agricultural Development’ (2006)
<http://siteresources.worldbank.org/INTDECABCTOK2006/Resources/Per_Pinstrup_Andersen_Rural_Infrastructur
e.pdf>.
1624
Fernanda Ruiz-Nuñez and Zichao Wei, ‘Infrastructure Investment Demands in Emerging Markets and
Developing Economies’ (Policy Research Working Paper 7414, World Bank, September 2015) 14
<https://openknowledge.worldbank.org/bitstream/handle/10986/22670/Infrastructure0developing0economies.pdf?se
quence=1>.
1625
Ruiz-Nuñez and Wei, above n 1614.
1626
In Amar Bhattacharya and Mattia Romani, ‘Meeting the Infrastructure Challenge: The Case for a New
Development Bank’ (2013)

388 Chapter 9: Trade

investment into rural infrastructure needs to be almost doubled in order for countries to fully
realise the benefits that trade liberalisation can have on income levels and food security.

Reformed versions of the AoA or a new WTO agreement should seek to strengthen public
and private investment in rural infrastructure and agriculture by imposing positive obligations on
developed states that perhaps form part of SDT provisions. These positive obligations would be
to provide a certain amount of financial and other resources within a specific time-frame and
directed at the rural areas of least-developed and net-food-importing states. Not only would such
a development be in accordance with criterion 2 of a RBA to FS, but it would also help create a
trading system that better realises the goals of the WTO, that is, the establishment of an equitable
trading system that contributes to human welfare and sustainable development.

In order to be compatible with a RBA to FS, the proposed rural investment obligations
would need to be expressly directed at specific kinds of infrastructure and capacity building
projects needed to improve market access. Accordingly, such an addition to trade rules would
require the input and feedback of rural communities and their representatives to determine the
kinds of rural development projects suited to particular areas and which would best improve
market access to “level the playing field”. Schedules could be created to contain the specific
details of areas and projects that are targeted.

However, some broad suggestions regarding potential schemes to expressly link with
financial and technology transfer obligations can be provided. Given that most food losses occur
post-harvest in developing countries, directing financial and other resources to the creation of
small and large-scale storage and drying facilities would increase the amount of food available
and improve farmer incomes.1627 For instance, public warehouse receipt systems involve farmers
storing some of their harvest for a receipt, which allows them to sell their produce when demand
is higher, potentially improves farmer access to finance and ensures that crops are appropriately

<http://www.cepal.org/sites/default/files/news/files/4._amar_bhattacharya_and_mattia_romani.pdf> estimated that

US$2 trillion is required to meet infrastructure needs, which is a gap of US$1 trillion; In Marianne Fay et al,
‘Infrastructure and Sustainable Development’ in Shahrokh Fardoust, Kim Yongbeom and Claudia Sepulveda (eds),
Post-Crisis Growth and Development (World Bank, 2011) 329, 353 the authors estimated that annual investment
needs were US$1.25–1.5 trillion, and so they estimated the gap at US$100-300 billion.
1627
See, eg, R.J. Hodges, J.C. Buzby and B. Bennett, ‘Postharvest Losses and waste in developed and less developed
countries: opportunities to improve resource use’ (2010) 149 Journal of Agricultural Science 37, 40-43. Examples
include coal tar drum bins, which are cost-effective, appropriate and suitable for small-scale storage needs.

Chapter 9: Trade 389

stored.1628 In addition, linking financial and other contributions to farmer-field schools that
facilitate co-learning of agroecological practices and adaptive ecosystem management would be
an effective approach for promoting sustainable practices and productivity in food insecure rural
areas dependent on agriculture.1629

Overall then, for trade liberalisation to contribute to a RBA to FS a cultural and political
shift is required that moves away from the reductionist focus on national economic growth that
dominates the rationale for trade liberalisation. Future agricultural trade agreements must treat
trade liberalisation as neither an end in and of itself, nor the most appropriate avenue in all
circumstances.1630 For trade liberalisation to operate in a context that allows for its benefits to
food security and human rights to be realised and equitably experienced, broader programs must
be put in place beyond trade liberalisation agreements, such as improved rural infrastructure
investment schemes.

9.5.2 Facilitates Industrial Agriculture Models

It is uncontroversial to point out that the AoA has incidentally contributed to the uptake of
large-scale, export-oriented, industrial food production.1631 Such an outcome is predicted by the

1628
Frank Höllinger and Lamon Rutten, ‘The use of warehouse receipt finance in agriculture in ECA Countries’
(Technical Background Paper, World Grain Forum, FAO, 2009)<http://www.eastagri.org/files/FAO_EBRD-
Warehouse-Receipt-Financing.pdf>. Such systems rely on effective governance mechanisms
1629
See part 8.2.2.2 for more discussion on farmer-field schools.
1630
Constantine Michalopoulos, ‘Special and Differential Treatment of Developing Countries in Agricultural Trade’
in FAO Papers on Selected Issues Relating to the WTO Negotiations on Agriculture (Food and Agriculture
Organization of the United Nations, 2002) 205, 208 <http://www.fao.org/docrep/005/y3733e/y3733e0c.htm>. In
fact, Michalopoulos in a report for the FAO, noted that:
In agriculture, there is a serious problem on how to develop rules appropriate to promoting the interests of
developing countries because the overall focus of the AoA has been on improving the policy environment in
developed countries…agriculture in many developing countries was being penalised, not supported by
government policy....the whole philosophy that drove the AoA was upside down…the agreed SDT
provisions… have been couched in the same upside [down] framework.
1631
This is due to the increased competition that trade liberalisation creates, as well as the encouragement for large-
scale food production in order to satisfy export markets. Olivier de Schutter, United Nations Human Rights Council,
Report of the Special Rapporteur on the Right to Food: Mission to the World Trade Organization,
A/HRC/10/5/Add.2 (4 February 2009) 17. See also, Gonzalez, ‘Trade Liberalization, Food Security, and the
Environment’, above n 1436; Andrew Lang, World Trade Law After Neoliberalism: Reimagining the Global
Economic Order (Oxford University Press, 2011) 75. Note that SAPs first drove the uptake of industrial agriculture
in developing countries, and thus the AoA is reinforcing this trend. See, eg, Theodore Panayotou and Kurt Hupe,
‘Environmental Impacts of Structural Adjustment Programs: Synthesis and Recommendations’ in Mohan
Munasinghe (ed), Environmental Impacts of Macroeconomic and Sectoral Policies (The International Society for
Ecological Economics, The World Bank and the United Nations Environment Programme, 1996) 55, 58–59 where
they explained that ‘By the mid-1980s, the social impacts of structural adjustment programmes began to assert
themselves as the private demand and public expenditure reduction, and other austerity measures had more

390 Chapter 9: Trade

comparative advantage, as discussed in section. The AoA has created an enabling environment
for industrial agriculture because of the specialisation required to compete in world markets. To
put it differently, the mass production of standardised agricultural products is encouraged by
trade liberalisation. Arguably then, agricultural trade liberalisation is inherently at odds with a
RBA to FS and particularly criterion 4.

However, domestic support payments under the Green Box for environmental programs
could counteract the negative effects of trade liberalisation on the agrobiodiversity of farms. As
evidenced in the discussion on Green Box payments above though, states have not generally
implemented the AoA in a way that offsets the negative environmental impacts of trade
liberalisation.

In order to counter the negative effects of trade liberalisation on agrobiodiversity and

sustainable farming systems, incentives for such systems must form part of international trade
agreements. This may involve preferential market access for small-scale farmers and produce
from farms that are sustainable according to set criteria. For instance, farms that reduce their use
of inputs to a certain extent and substitute external in-puts for more sustainable inputs and
practices could be given preferential market access.1632

Another approach is to make subsidies directed at agroecological farms exempt from

reduction commitments, while ensuring that domestic support directed at industrial farms is
subject to reduction commitments. Such an approach would help mobilise resources for small
and mid-scale farms practicing more sustainable forms of agriculture and mitigate the negative
impacts of trade liberalisation on the natural resources required for food security and agriculture.
Even a gradually implemented prohibition on all subsidies to industrial farmers should be
considered. Careful drafting of such exemptions or prohibitions would be required to prevent
manipulation or misuse of these provisions by state and non-state actors.

pronounced impact on the poor and other vulnerable socio-economic groups…[T]he growth of output and exports
stimulated by adjustment policies such as trade liberalisation was associated with accelerated resource
depletion…deforestation and increased pollution. The reduction in public environmental expenditures, as part of the
deficit reduction measures, led to reduced enforcement of environmental regulation’.
1632
This suggestion for criteria is based on Gliessman’s five levels of conversion from industrial to agroecological
food systems. See, Stephen R Gliessman, Agroecology: The Ecology of Sustainable Food Systems, Third Edition
(CRC Press, 2014) 342.

Chapter 9: Trade 391

9.5.3 States’ Ability to Take Rights-Based Food Security Measures
9.5.3.1 General measures
In order to meet their pre-existing, and arguably overriding, human rights obligations,
states must have the regulatory space to protect, respect and facilitate human rights and food
security. Trade agreements like the AoA should not create obligations on a state that limit its
ability to pursue rights-based measures to food security. Furthermore, trade agreements should
not only protect the policy space that states have to a RBA to FS, but also facilitate an expansion
of states’ ability to pursue a RBA to FS.1633

The impacts of the AoA on states’ policy space differs depending on the context. Mayer
explained that ‘[w]hether international integration and regulation on balance increase or reduce
the degrees of freedom in national policy-making depends on what type of policy instrument is
affected, by how much and in what direction; the balance is likely to differ across countries’.1634
This section will focus on the impact of the AoA on public food stockholding measures as a case
study to illustrate some of the impacts the AoA has on the policy space required for a RBA to FS.

9.5.3.2 Public food stockholding measures

Over the years since the AoA was introduced, states have expressed concerns that they
cannot effectively pursue stockholding programmes without influencing prices and quantities of
food, which may breach the AoA. This is because stockholding programmes or domestic food aid
programmes that are more than minimally trade distorting must be subject to reduction
commitments. In order to be exempt, such programmes must be ‘[p]rovided through a publicly
funded government programme not involving transfers to consumers’ and must not act as price
support for producers.1635 This means that the AoA does not prohibit the public stockholdings of

1633
Based on the ideas communicated by Olivier De Schutter, ‘International Trade in Agriculture and the Right to
Food’ (No.46, Dialogue on Globalisation, Friedrich-Ebert-Stiftung, November 2009) 7.
1634
Jörg Mayer, ‘Policy Space: What, for What, and Where?’ (2009) 27(4) Development Policy Review 373, 392-
393.
1635
In relation to public stockholding that would fall under the Green Box, Annex 2 para 3 provides that:
‘Expenditures (or revenue foregone) in relation to the accumulation and holding of stocks of products which form an
integral part of a food security programme identified in national legislation. This may include government aid to
private storage of products as part of such a programme. The volume and accumulation of such stocks shall
correspond to predetermined targets related solely to food security. The process of stock accumulation and disposal
shall be financially transparent. Food purchases by the government shall be made at current market prices and sales
from food security stocks shall be made at no less than the current domestic market price for the product and quality
in question’. Similarly, domestic food aid can also be considered exempt from reduction commitments where

392 Chapter 9: Trade

food, but does effectively limit the amount of food that can be stored, and the way in which
public stockholdings are carried out. For instance, states must have a specific purpose for storing
food and states must purchase food for storage or sell stored food at current market prices. These
limitations may reduce the substantial food security benefits that can be gained from public
stockholdings of food.

Since the AoA came into effect, and as part of general trends towards more neoliberal
governance approaches, states have generally been abandoning or dramatically reducing their
food reserve programmes.1636 McMurphy explained that this trend is detrimental trend for food
security as food reserves help:

 Correct market failures – markets cannot ensure that everyone has access to food;

 Counter volatile prices – reducing price fluctuations and price differences depending
on where people live (eg remote rural locations versus cities);

 Protect against private sector decisions that threaten rights-based food security (eg
misuse of market power through predatory pricing, exclusive dealings and cartels);

 In emergencies – natural disasters, conflicts, weather, disease/pests.1637

Likewise, various NGOs have acknowledged the critical role of food reserves for food
security.1638 Although food stocks can be inefficient and costly, it is generally acknowledged that
well-designed food stock programmes can overcome these issues.1639 By placing limitations on
the ability of states to create food reserves, the AoA is inconsistent with a RBA to FS.1640

‘Eligibility to receive the food aid shall be subject to clearly-defined criteria related to nutritional objectives. Such
aid shall be in the form of direct provision of food to those concerned or the provision of means to allow eligible
recipients to buy food either at market or at subsidized prices. Food purchases by the government shall be made at
current market prices and the financing and administration of the aid shall be transparent.’
1636
Sophia Murphy, ‘Strategic Grain Reserves In an Era of Volatility’ (Institute for Agriculture and Trade Policy,
October 2009) <http://www.iatp.org/files/451_2_106857.pdf> 3.
1637
Ibid 4-5.
1638
See, eg, Joachim von Braun and Maximo Torero, ‘Implementing physical and virtual food reserves to protect the
poor and prevent market failure’ (International Food Policy Institute, Fact Sheet 2009) 10
<http://www.ifpri.org/publication/implementing-physical-and-virtual-food-reserves-protect-poor-and-prevent-
market-failure>; Oxfam Canada, ‘Why does the World need food reserves?’ (Fact Sheet, August 2011)
< http://www.oxfam.ca/sites/default/files/imce/fact-sheet-food-reserves-2011-08.pdf>.
1639
See eg, Christopher Gilbert, ‘Food Reserves in Developing Countries: Trade Policy Options for Improved Food
Security’ (Issue Paper No.37, International Centre for Trade and Sustainable Development, September 2011)

Chapter 9: Trade 393

 As a result of these issues, and at the Ninth WTO Ministerial Conference in 2013, the
ministers reached a decision to create a ‘peace clause’ (Decision 38).1641 This clause allowed
governments to conduct stockpile programmes without the threat of legal action, as an interim
measure until the 11th Ministerial Conference in 2017. On the one hand, this decision is a first
step to addressing the limitations placed on public stockholdings and the issues this has for a
RBA to FS. On the other hand, it is an unclear, interim measure that remains legally non-binding
and more of a declaration of political intention.1642

Häberli has provided a useful review of Decision 38 by explaining that there needs to be
more room in the Green Box for ‘farm support in pursuance of legitimate food security
objectives’.1643 He suggested that WTO members need to ‘[c]larify which types of stockpile
schemes outside the present Green Box may be permanently pursued without any WTO
limitations and subsidy disciplines’.1644 Such an approach is critical for a RBA to FS and will be
increasingly important in light of the changing climate.

9.5.4 Effect of Corporate Concentration

9.5.4.1 Effect of corporate concentration on the benefits of trade liberalisation for food
security and human rights
As the AoA improves the ability to trade between nations, transnational corporations
(TNCs) have been able to increase their role and significance in food systems. TNCs are
particularly well placed to take advantage of trade liberalisation because they operate in various

<http://www.ictsd.org/downloads/2011/12/food-reserves-in-developing-countries.pdf> 2.
1640
Public reserves are not without their drawbacks, which include that public reserves are costly, require good
governance and that even with resources, the private sector may still be more efficient than the public. See, Murphy,
above n 277, 5-6.
1641
World Trade Organization, Public Stockholding for Food Security Purposes, WTO Doc WT/MIN(13)/38,
WT/L/913 (11 December 2013) (Ministerial Decision) (Decision 38).
1642
The WTO Agreement, inclusive of the AoA, can be amended in three ways: through the Ministerial Conference
and the General Council adopting an authoritative interpretation (WTO Agreement Art IX(2)), a temporary waiver
(WTO Agreement Art IX(3)), or an amendment (see eg, art 20 AoA or art X of the WTO Agreement). The preamble to
Decision 38 says ‘having regard to paragraph 1 of Article IX of the Marrakesh Agreement Establishing the World
Trade Organization’, which relates to decision-making and the adoption of authoritative decisions.
1643
Christian Häberli, After Bali: WTO Rules Applying to Public Food Reserves (Working Paper, No.46 FAO
Commodity and Trade Policy Research Working Paper, 2014) 10.
1644
Ibid.

394 Chapter 9: Trade

countries, and have been able to reach concentrated levels in most stages of food systems.1645 For
example, a report by Patel and Memarsadeghi showed a link between the US government’s
reduction in trade barriers and the increased concentration of agribusiness companies leading to
three to five companies controlling the majority of grains, beef and flour.1646

The concentration of TNCs in agriculture casts further doubt on the theory that agricultural
trade liberalisation, even where developed countries removed their barriers to trade, can overall
be a tool for achieving food security by reducing poverty. This is because the concentration of
TNCs reduces the amount of benefits that flow to producers. Sexton et al created a model to
characterise the impact of TNC concentration on food markets. They concluded that ‘[e]ven
relatively modest departures from perfect competition can cause much of the benefits from trade
liberalization to flow to marketing firms instead of producers in the developing country’.1647
Importantly, the largest agricultural TNCs are headquartered in developed countries, which
suggests that benefits of trade liberalisation tend to flow back to the TNCs and the developed
countries where TNCs are based.1648

TNCs use various regulatory tools to control agriculture, including exclusive contracts and
the standard setting.1649 Furthermore, they tend to demand mass-produced, standardised food and
agricultural products, as this lowers production costs through exploitation of economies of scale
and allows them to value-add more easily.1650 Farmers that cannot meet the needs of TNCs,

1645
For an analysis on this, see generally, Jennifer Clapp and Doris A Fuchs, Corporate Power in Global Agrifood
Governance (MIT Press, 2009). See also, Hope Johnson and Reece Walters, ‘Food Security’ in Martin Gill (ed), The
Handbook of Security (Palgrave Macmillan, 2nd ed, 2014).
1646
Sanaz Memarsadeghi and Raj Patel, ‘Agricultural Restructuring and Concentration in the United States: Who
Wins, Who Loses?’ (Food First: Institute for Food and Development Policy, August 2003) 53, 35.
1647
Richard Sexton et al, ‘Analyzing Vertical Market Structure and Its Implications For Trade Liberalization’
(Agricultural and Applied Economics Association, 2004) 29, 1.
1648
See, e.g., ‘Putting the Cartel before the Horse: Farm, Seeds, Soil, Peasants- Who Will Control Agricultural
Inputs in 2013’, above n 1042. See also, Steve McCorriston and Ian Sheldon, ‘Trade Liberalization and Rent
Distribution in Vertically Related Markets’ in Johan FM Swinnen (ed), Global Supply Chains, Standards and the
Poor: How the Globalization of Food Systems and Standards Affects Rural Development and Poverty (CABI, 2007)
59, 59. McCorriston and Sheldon commented that ‘…in terms of the total value of the product that reaches
consumers, the raw agricultural component typically represents a small share…the distribution of vertical rents and
the impact of trade liberalization may reduce the overall share of value added.’
1649
Bart Minten, Lalaina Randrianarison and Johan FM Swinnen, ‘Global Retail Chains and Poor Farmers:
Evidence from Madagascar’ (2009) 37 World Development 1728; David Burch, Jane Dixon and Geoffrey Lawrence,
‘Introduction to Symposium on the Changing Role of Supermarkets in Global Supply Chains: From Seedling to
Supermarket: Agri-Food Supply Chains in Transition’ (2013) 30 Agriculture and Human Values 215.
1650
Erika Rosenthal, ‘The DBCP Pesticide Cases: Seeking Access to Justice to Make Agribusinesses Accountable in

Chapter 9: Trade 395

which include, but are certainly not limited to small-scale farmers in developing countries, have
found themselves marginalised from mainstream food systems leading to urban migration.1651

Regardless of how trade liberalisation is carried out then, outcomes that are consistent with
a RBA to FS will depend heavily on the terms through which farmers or their representatives
interact with TNCs.1652 Accordingly, the FAO has observed that ‘The risk arises because small
producers, and even some large producers in small countries, are the weakest link in the
chain’.1653 Sometimes referred to as being hourglass shaped, the global food system has millions
of farmers and farm workers producing food, many more consumers eating the food, and in the
narrow middle, only a few transnational corporations in charge of processing, distribution and
retail.1654 This restricts the power of consumers to influence agricultural practices through their
purchases and substantially reduces the bargaining power of farmers.1655 At the same time, the
growth of TNCs, particularly in the retail sector, can also foster opportunities for increased
market access if corporations pursue a diversified supplier base.1656

9.5.4.2 Influence of transnational corporations on WTO negotiations

Due to their economic and political resources, agricultural TNCs are in a strong position to
influence how trade regimes develop.1657 Paul and Steinbrecher explained that:

the Global Economy’ in Kees Jansen and Sietze Vellema (eds), Agribusiness and Society: Corporate Responses to
Environmentalism, Market Opportunities and Public Regulation (Zed Books, 2004) 176, 193. Food and Agriculture
Organization of the United Natures, ‘Trade Reforms and Food Security: Conceptualizing the Linkages, Commodity
Policy and Projects Service’(Commodities and Trade Division, 2003) 44.
1651
Olivier de Schutter, United Nations Human Rights Council, Report of the Special Rapporteur on the Right to
Food: Mission to the World Trade Organization, A/HRC/10/5/Add.2 (4 February 2009) 13.
1652
R Kaplinsky, ‘Globalisation and Unequalisation: What Can Be Learned from Value Chain Analysis?’ (2000) 37
Journal of Development Studies 117, 124 where Kaplinsky explained that ‘It is not just a matter of whether
producers participate in the global economy which determines their returns to production [income/food access], but
how and on what terms they do so’.
1653
Trade Reforms and Food Security: Conceptualizing the Linkages, above n 17, 44.
1654
See, eg, J Thompson et al, ‘Agri-Food System Dynamics: Pathways to Sustainability in an Era of Uncertainty’
(STEPS Working Paper 4, STEPS Centre, Institute of Development Studies, University of Sussex, 2007) 9
<http://steps-centre.org/wp-content/uploads/Final_steps_agriculture.pdf>; Rajeev Charles Patel, Stuffed & Starved:
Markets, Power & the Hidden Battle for the World Food System (Black Inc., 2009).
1655
See, eg, Christine Parker, ‘Voting with Your Fork? Industrial Free Range Eggs and the Regulatory Construction
of Consumer Choice’, 649 Annals of the American Academy of Social and Political Science 52.
1656
See, eg, John Humphrey, ‘The Supermarket Revolution in Developing Countries: Tidal Wave or Tough
Competitive Struggle?’ (2007) 7 Journal of Economic Geography 433, 445–446 where the author discusses mixed
supplier bases and the amount of large and small farm supplies available.
1657
United Nations Conference on Trade and Development, Wake up before it is too late: Make Agriculture Truly
Sustainable now for Food Security in a Changing Climate, Trade and Environment Review 2013, UN Doc
UNCTAD/DITC/TED/2012/3 (18 September 2013) 64.

396 Chapter 9: Trade

 Corporations have penetrated the whole process of the WTO with well-organised and
well-resourced lobbying groups…Over 500 corporate delegates attend the biennial WTO
Ministerial Conferences as “trade advisers”, whilst some poor countries may have a
single delegate trying to cover all issues.1658

This ability to influence trade rules but escape accountability under public international
regulation can partly explain why agricultural TNCs have been able to become concentrated.1659

The influence of TNCs in the WTO negotiations reflects broader ‘democratic deficits’ in
the WTO internal processes, and in fact international institutions in general, that are widely
documented by scholars.1660 The power imbalances between states, the unchecked influence of
TNCs and the procedures of WTO that restrict the inclusivity of negotiations is a major
contributing factor to the problems with the AoA from a RBA to FS perspective.1661 For instance,
Singh observed that many countries have ‘[c]hallenged the legitimacy of decisions made in
informal negotiations by delegates from only selected countries without informing the rest of the
membership’.1662 To be consistent with a RBA, the WTO should ensure that it has accessible,
transparent and effective monitoring and accountability mechanisms.1663

1658
Ricarda Steinbrecher, Hungry Corporations: Transnational Biotech Companies Colonise the Food Chain (Zed
Books, 2003) 147.
1659
Debbie Barker, ‘The Rise and Predictable Fall of the Globalized Industrial Agriculture’ (Report from
International Forum on Globalization, 2007)<http://ifg.org/v2/wp-content/uploads/2014/05/ag-report.pdf> 2.
1660
For instance, Michael Zürn, ‘Global Governance and Legitimacy Problems’ (2004) 39 Government and
Opposition 260, 282 observed that ‘Undoubtedly, among the most fiercely criticized international institutions are the
WTO, the IMF and the World Bank. These institutions especially are under criticism from all sides and are a popular
target for protest movements’; Cecilia Albin, ‘Using Negotiation to Promote Legitimacy: An Assessment of
Proposals for Reforming the WTO’ (2008) 84 International Affairs 757, 757 observed that ‘the WTO faces a serious
problem of legitimacy that derives largely from its procedures for decision-making, and, especially, negotiation.
Those used informally in ad hoc ways are particularly controversial. A number of experts, including current and
former WTO-affiliated persons, point specifically to a lack of transparency and insufficient representation of parties
in negotiations as key contributors to the erosion of legitimacy, which must be tackled if the organization is to be
able to operate effectively’; Richard Higgott and Eva Erman, ‘Deliberative Global Governance and the Question of
Legitimacy: What Can We Learn from the WTO?’ (2010) 36 Review of International Studies 449. Overall, the WTO
processes that are often critiqued include its decision making processes (eg not all members must be present and
silence is taken as acceptance); trend towards informal meetings between delegates (though this also helps keep
negotiations moving - which then again may be favouring efficient negotiations over participatory approaches),
informal meetings may not be recorded or transparent and the WTO Secretariat tends to have far more people from
developed countries. See, eg, Secretariat and Budget Overview (31 December 2014) World Trade Organization
<https://www.wto.org/english/thewto_e/secre_e/intro_e.htm>.
1661
Ibid.
1662
Rahul Singh, ‘The World Trade Organization and Legitimacy: Evolving a Framework for Bridging the
Democratic Deficit’ (2008) 42 Journal of World Trade 347, 353. Further, Singh observed that ‘Ironically, countries

Chapter 9: Trade 397

 Fortunately, the WTO has reformed its internal processes with the aim of increasing
transparency and participation of a wider group of global actors (eg NGOs and UN bodies
including the FAO).1664 These developments can help balance the influence of TNCs and
developed states. Nevertheless, substantial space to improve the inclusivity of WTO processes
remains.

For instance, a RBA to FS, and in particular are criterion 3, requires states carry out
human rights impact assessments prior to entering into trade agreements. The obligation to
conduct human rights impact assessments would be better enforced if it were made a
precondition to entering into trade negotiations. If trade law did develop in this direction, the
WTO would need to mobilise resources and support for least-developed countries to assist with
the carrying out of their assessments.

9.5.4.3 Addressing transnational corporation concentration for a rights-based approach to

food security
The above discussion drew attention to the implications of agricultural TNC concentration
on the benefits of trade liberalisation for food security and the progressive realisation of human
rights. In order to ensure that trade liberalisation works for a RBA to FS, effective regulation of
TNCs at international and national levels is critical; however, a detailed discussion on this is
outside of the scope of this thesis. Nonetheless, there is a growing body of legal scholarship

that earlier used to mount a strong, vocal critique against the “green-room” process seem to have embraced the idea
when they themselves are in a relatively advantageous position’.
1663
Office of the United Nations High Commissioner for Human Rights, Principles and Guidelines for a Human
Rights Approach to Poverty Reduction Strategies, UN Doc HR/PUB/06/12 (2004) [94].
1664
See, eg, the Integrated Trade Intelligence Portal Goods developed by the WTO Secretariat that was launched in
2013. This portal streamlines access to tariff- and non-tariff measures that affect trade in goods (and services). A
member of the public can access information on members’ notifications of non-tariff measures (eg SPS measures).
Integrated Trade Intelligence Portal (I-TIP) (2016) <https://www.wto.org/english/res_e/statis_e/itip_e.htm>.
Another instance of the WTO’s processes being gradually improved in terms of participation and transparency
comes from the Appellate Body Report, United States-Import Prohibition of Certain Shrimp and Shrimp Products,
WTO Doc WT/DS58/AB/R (12 October 1998) [89]-[91] where the Appellant Body admitted briefs from
environmental NGOs (termed amicus curiae briefs) provided that were attached to one of the party’s submissions. In
the later decision of Appellate Body Report, United States- Imposition of Countervailing Duties on Certain Hot-
Rolled Lead and Busmuth Carbon Steel Products Originating in the United Kingdom, WTO Doc WT/DS138/AB/R
(10 May 2000) [39]-[42] the Appellate body found that it had the legal authority to accept any briefs from
stakeholders including NGOs if it finds it pertinent to do so and regardless of whether it is attached to a WTO
Member’s submission. For a useful overview of progress to date, see eg, Gabrielle Marceau and Mikella Hurley,
‘Public Participation: A Report Card on WTO Transparency Mechanisms’ (2012) 4 Trade, Law and Development
19.

398 Chapter 9: Trade

concerning the international regulation of and by TNCs,1665 and as discussed, there have been
developments in relation to TNCs and their potential human rights obligations.1666 Given the
significant role agricultural TNCs play in global food systems, mechanisms to improve the
accountability of agricultural TNCs must continue to develop in order for a RBA to FS to be
realised.

International trade and investment law should be expanded to encompass competition

policies that help prevent anti-competitive practices. Such an approach would facilitate a RBA to
FS if it resulted in farmers having more bargaining power and autonomy. However, the Doha
Round decided not to consider this in order to progress negotiations.1667

In order for future agricultural trade agreements to be compatible with criterion 3 a RBA to
FS, and to balance the influence of TNCs, WTO internal processes must continue to become
more inclusive and informed by various disciplines and groups. In the case of agricultural trade
agreements, representatives of small-scale farmers, women farmers and food insecure groups
should be able to provide WTO members with feedback on the trade rules under consideration.

9.6 CONCLUSION

Future agricultural trade agreements under the WTO must deal with broader subject-matter
than reducing barriers to trade. Novel mechanisms that move beyond the arbitrary distinction
between trade and non-trade concerns are required to address the negative impacts of trade
liberalisation and to realise the benefits trade liberalisation can have on human rights and food

1665
Larry Catá Backer, ‘Multinational Corporations, Transnational Law: The United Nation’s Norms on the
Responsibilities of Transnational Corporations as Harbinger of Corporate Responsibility in International Law’
(SSRN Scholarly Paper ID 695641, Social Science Research Network, 5 April 2005)
<http://papers.ssrn.com/abstract=695641>; de Jonge, above n 353; Gralf-Peter Calliess, ‘Transnational Corporations
Revisited’ (2011) 18 Indiana Journal of Global Legal Studies 601; David Jason Karp, Responsibility for Human
Rights: Transnational Corporations in Imperfect States (Cambridge University Press, 2014); Mathias Koenig-
Archibugi, ‘Transnational Corporations and Public Accountability’ (2004) 39 Government and Opposition 234;
Amao, above n 268; BL Barham et al, ‘Fair Trade/organic Coffee, Rural Livelihoods, and the “Agrarian Question”:
Southern Mexican Coffee Families in Transition’ (2011) 39 World Development 134; Sarah Holzapfel and Meike
Wollni, ‘Is GlobalGAP Certification of Small-Scale Farmers Sustainable? Evidence from Thailand’ (2014) 50 The
Journal of Development Studies 731; Kalfagianni, Fuchs and Arentsen, above n 1445.
1666
Chapter 3 outlined these developments.
1667
World Trade Organization, Doha Work Programme, WTO Doc WT/L/579 (2 August 2004) (Decision Adopted
by the General Council on 1 August 2004) 3.

Chapter 9: Trade 399

security. These novel mechanisms could take various forms, including the suggestions provided
in section 9.5, which included:

 Flexibilities for least-developed and net-food-importing states to adopt some

protectionist measures, preferably tariffs, with limitations;

 Customised SDT provisions;

 Preferential market access provisions for food insecure, small-scale farmers in

least-developed and net-food-importing member states

 Specific targets and obligations imposed on developed countries to provide

resources for rural infrastructure and agriculture to least-developed member
countries perhaps in the form of SDT clauses;

 Exemptions from domestic support reduction commitments for agroecological

farms based on set criteria;

 Preferential market access provisions for produce from farms that are sustainable
according to set criteria;

 Finalisation of trade agreements conditional on each party conducting a human

rights impact assessment;

 Gradually implemented prohibitions on domestic support for industrial farms;

 Authorisation for states to conduct food stockpiling programmes without the threat
of legal action when it is for legitimate food security objectives and is consistent
with a RBA;

 Representatives of small-scale farmers, women farmers and food insecure groups

being able to access agricultural trade agreement texts under negotiation with
avenues to provide WTO members with feedback; and

 Development of international competition laws and policies.

More broadly, WTO members should recognise the progressive realisation of human
rights, including the right to food, as the ultimate objective of trade liberalisation in the preamble

400 Chapter 9: Trade

to trade agreements. Recognition of the end goals of trade liberalisation in combination with
inclusive internal processes informed by human rights impact assessments may create space for a
WTO to develop that is compatible with a RBA to FS.

Chapter 9: Trade 401

 Conclusion and Recommendations

10.1 OVERVIEW

This thesis has provided a policy-oriented legal analysis of the international regulation of
agriculture using a rights-based approach to food security. It began by developing a normative
basis for international agricultural law and creating criteria to evaluate the regulatory instruments
that intersect with agriculture. Following this, a systematic analysis was carried out on the public
international regulatory instruments that intersect with each element involved in the production
of food. This analysis evaluated the ways in which the international regulatory framework for
agriculture is compatible or incompatible with a rights-based approach to achieving the objective
of food security. As a result, this thesis makes a significant contribution to the fields of Human
Rights Law, International Food Policy, International Environmental Law and International Trade
Law. The conclusion is structured to summarise the answers and findings related to the research
questions posed, and to comment on the broader themes and issues with which this thesis
intersects.

10.2 RIGHTS-BASED APPROACH TO FOOD SECURITY

The normative framework adopted is consistent with the policy-oriented approach of the
thesis outlined in Chapter 1. A policy-oriented approach focuses on the compatibility of rules
with the achievement of specific social goals and common values, including human dignity in
particular.1668 This thesis positioned food security as the specific social goal that should form the
basis of global food and agricultural governance. Food security is the predominant policy
concept and objective attributed to food and agricultural activities at international and national
levels.

In order to clarify this objective in a manner consistent with common values, Chapter 3
developed a RBA to FS in the context of agricultural regulations. Adopting a RBA not only

1668
See, eg, Seigfried Wiessner and Andrew R Willard (1999) ‘Policy-Oriented Jurisprudence and Human Rights
Abuses in Internal Conflict: Toward a World Public Order of Human Dignity’ 93(2) The American Journal of
International Law 316.

402 Chapter 10: Conclusion and Recommendations

provided standards for the means to achieve food security but also operationalised the values that
underpin food security and that make achieving food security important including freedom and
human dignity in particular.

Chapter 3 identified the broad or ultimate components of a RBA to FS as human rights

(particularly the right to food), food security (accessibility, availability, adequacy and stability),
and human rights principles (eg participation, accountability, non-discrimination, transparency,
human dignity, empowerment and the rule of law). Based on the broad components of a RBA to
FS, and in order to answer research question one, criteria for a RBA to FS in the context of
agricultural regulation were developed.

Criterion 1 concerned whether the objectives and provisions within a regulatory instrument
were compatible with the broad components of a RBA to FS. Criterion 2 related to special
treatment, support and protections for food insecure groups or groups vulnerable to food
insecurity provided by a regulatory document. Criterion 3 focused on the compatibility of the
procedural design, negotiation and implementation of a regulatory instrument with human rights
principles. Criterion 4 concerned the sustainable use of the natural resources used in agriculture
and relied upon for food security. This criterion considered whether the regulatory instrument
enabled transitions towards agroecology and/or sought to reduce the harms of industrial
agricultural methods.

10.3 INTERNATIONAL FRAMEWORK FOR AGRICULTURE

The international regulatory framework for agriculture is a mishmash of environmental

agreements, human rights treaties and trade and investment laws. This framework is becoming
increasingly complicated with the increase in regional trade agreements and the growing
regulatory role of non-state actors.

On the one hand, the specialised, separate regimes that typify international law may
promote targeted regulatory interventions. On the other hand, fragmented regulatory regimes are
counter to the determinacy and consistency required for a rule and regulator to have legitimacy
and influence, such concepts were discussed in Chapter 1. For instance, in relation to
international governance generally, the ILC observed that:

Chapter 10: Conclusion and Recommendations 403

 [s]pecialized law-making and institution-building tends to take place with relative
ignorance of legislative and institutional activities in the adjoining fields and of the
general principles and practices of international law. The result is conflicts between rules
or rule-systems, deviating institutional practices and, possibly, the loss of an overall
perspective on the law.1669

As this thesis has illustrated, there is no overall perspective on the laws that influence
agriculture, rules often conflict, and institutional practices, for instance those of the CFS and the
World Bank, greatly differ.1670 The fragmentation across norms, institutions and regulatory
instruments that intersect with agriculture is one factor that has prevented integrated responses to
the issues facing food and agriculture. Such a situation is at odds with the recognition by
international actors that global food security is a fundamental objective of the international legal
and political system.1671 Given the multidimensional nature of food security, and the emerging
understanding of the need for food systems-based perspectives,1672 approaching the law
holistically in this area is not only appropriate, but vital.

A key finding throughout the chapters was the lack of integration between human rights
and environmental agreements and principles. The lack of integration was particularly evident as
agriculture encapsulates the connection between human and environmental health. For instance,
the two main treaties dealing with watercourses do not consider human rights obligations when
allocating water usage or when determining ‘significant harm’. However, Chapter 5 on soil, and
in particular the Paris Agreement, as well as the non-binding instruments examined in the

1669
International Law Commission, Fragmentation of International Law: Difficulties Arising from the
Diversification and Expansion of International Law, UN Doc A/CN.4/L.682 (13 April 2006) para 8.
1670
For instance, international investment laws generally protect the foreign investor against state interference but do
not protect those state interferences that are consistent with progressive realisation of human rights obligations.
Likewise, institutional practices differ greatly. For instance, investment arbitrators consider the investment treaty
and do not consider other international norms or rules. This was discussed in Chapter 4. Joost Pauwelyn, ‘Bridging
Fragmentation and Unity: International Law as a Universe of Inter-Connected Islands’ (2004) 25 Michigan Journal
of International Law 903, 907 where the author explained that ‘In some cases...the tension between treaties cannot
be “interpreted away” and a genuine conflict arises’. Pauwelyn identified the following situation as an example of
where a genuine conflict arises ‘conflict arises not only when faced with two mutually exclusive objectives. Conflict
may also arise between an obligation to do X under one norm (say, to liberalize trade) and an explicit right not to do
X under another (say permission to ban a particular import under an environmental treaty)’.
1671
For instance, Goal 1 of the Millennium Development Goals was to ‘Eradicate extreme poverty and hunger’. The
follow-up to the Millennium Development Goals is the sustainable development agenda adopted in 2015, UN
members committed to end hunger, achieve food security, improved nutrition and promote sustainable agriculture
(Goal 2). See, Transforming our world: The 2030 Agenda for Sustainable Development, GA Res 70/1, 70th sess,
Agenda item 15 and 116, UN Doc A/RES/70/1 (21 October 2015).
1672
As discussed in section 1.1.

404 Chapter 10: Conclusion and Recommendations

chapter on land (Chapter 4),1673 evidenced a potential shift towards a more rights-based approach
to environmental issues. Likewise, the integration of environmental and human rights concerns is
increasingly evident in scholarly works, international policy documents and international
declarations.1674 It was also observed throughout this thesis that, although human rights and
environmental treaties do not explicitly or institutionally connect, they share a common focus on
future generations, procedural justice and improving environmental management for human
well-being.1675

Another key area of fragmentation was between international economic laws and
environmental and human rights law. International trade and investment law compartmentalises
subjects that are deemed outside of trade and investment concerns. In fact, the WTO refers to
these as ‘non-trade’ concerns, while investment treaties solely focus on protecting the investor
against state interference. Chapters 4 and 9 argued that this approach creates an artificial
distinction between agricultural trade and the other international regulations and principles
intersecting with agriculture.

The fragmentation between international economic law and other areas of international law
is so pronounced that it arguably has reinforced structural inequities at the international level.1676
Chapter 9 examined the significant, adverse impacts the Agreement on Agriculture has had on
the agricultural sectors and food security of low-income developing countries, while allowing
developed states to continue their market access barriers. Accordingly, the Agreement on
Agriculture has been formulated and implemented in ways that are counter to the development of
special measures for vulnerable groups required under human rights law. Likewise, Chapter 7
illustrated that ways in which the Agreement on Trade-Related Aspects of Intellectual Property
Rights (TRIPs), and the external pressure to become signatories to International Union for the
Protection of New Varieties of Plants (UPOV), largely benefited developed countries that were

1673
Except for the Principles of Responsible Agricultural Investment.
1674
Discussed in section 3.4. See also, Shelton, ‘Human Rights, Environmental Rights, and the Right to
Environment’, above n 252; Boyle, above n 1226.
1675
The idea of sustainably exploiting natural resources for human well-being is not compatible with the Earth
Jurisprudence approach that acknowledges the intrinsic worth of nature.
1676
Eyal Benvenisti and George W Downs, ‘The Empire’s New Clothes: Political Economy and the Fragmentation
of International Law’ (2007) 60 Stanford Law Review 595.

Chapter 10: Conclusion and Recommendations 405

home to biotechnology companies, while leading to issues such as biopiracy and increases in the
costs of inputs in developing countries.

Even within laws dealing with the same subject matter, such as multilateral environmental
agreements, a clear and consistent alignment normatively and legally was often unclear. For
instance, the chapters on land, soil (land use), water and seeds rarely shared instruments in
common, despite being closely, ecologically connected resources that are all relied upon for
agriculture. A few instruments regulating agricultural resources have the potential to interact
better in the future by virtue of their adoption of an ecosystem approach, which was observed in
this thesis due to the focus on ecological approaches to farming.

The Water Convention, the Convention on Biological Diversity (CBD) and the United
Nations Convention to Combat Desertification (UNCCD) all emphasise an ecological approach
to environmental management and regulation. Such an approach focuses on the relationships
between natural resources, living resources and environmental services. As a result, these
instruments could be interpreted in ways that support the principles and rules of the other and in
ways that align with criterion 4 of a RBA to FS.1677 Notably though, other instruments
intersecting with agriculture do not adopt an ecosystem approach, including the climate change
regime, the United Nations Watercourse Convention (UNWC) and the range of instruments
dealing with pesticides.

10.4 CONTRIBUTION OF THE INTERNATIONAL REGULATORY FRAMEWORK

FOR AGRICULTURE TO A RIGHTS-BASED APPROACH TO FOOD SECURITY

10.4.1 Objectives and Provisions that are Directly Compatible with the Realisation of
Human Rights and Food Security in the Context of Agriculture
Although only human rights instruments and the Paris Agreement recognise human rights,
most of the environmental-centred instruments were broadly consistent with human rights
objectives. As discussed, international environmental law tends to promote the sustainable
management of natural resources and the sound management of chemicals and wastes, which in

1677
International Law Commission, Fragmentation of International Law: Difficulties Arising from the
Diversification and Expansion of International Law, UN Doc A/CN.4/L.682 (13 April 2006) para 36 explains that
‘[l]egal reasoning will either have to seek to harmonize the apparently conflicting standards through interpretation,
or, if that seems implausible, to establish definite relationships of priority between them.’ The suggestion above is
that an eco-system approach could help harmonise the agreements that intersect with the natural resources used in
agriculture.

406 Chapter 10: Conclusion and Recommendations

turn protects and facilitates the enjoyment of various human rights, including the rights to water,
life and health.

In fact, the divide between environmental and human rights law does not seem to have
affected the use of provisions that promote the equal distribution of agricultural resources in
either areas of law. The human rights treaties in the land chapter, the Principles for Responsible
Agricultural Investment (Chapter4), the conventions concerning water (Chapter 6) and the
access-and-benefit sharing schemes (Chapter 7) are examples of instruments that seek to enable a
fairer distribution of agricultural resources.

Despite their general compatibility, the lack of an explicit reference to human rights law
and principles poses issues. Firstly, provisions in multilateral environmental agreements can, and
have, been interpreted in ways counter to human rights principles and food security, as discussed
in Chapters 5 and 6.1678 Secondly, multilateral environmental agreements generally did not go far
enough to be in complete alignment with human rights law. For instance, in Chapter 8, the
environmental agreements regulating pesticide imports and exports would need to be more
burdensome and comprehensive in their provisions to be compatible with human rights law (eg
apply to a wider range of pesticides and have stricter provisions on exporting states). Thirdly,
some multilateral environmental agreements, such as the CBD, were generally consistent with
the objectives and provisions of human rights law but were not necessarily compatible with long-
term food security, and therefore the intergenerational component of human rights.

From one perspective, WTO law is consistent with human rights objectives, as it perceives
liberalising trade as the means to improve human welfare. However, the Agreement on
Agriculture does not reflect the ultimate goal of liberalising trade for human welfare. The
agreement is entirely focused on liberalising barriers to agricultural trade, not on how to
liberalise agricultural trade in ways that will enable food security or the progressive realisation of
human rights. Accordingly, the mutually reinforcing connection that broadly exists between
environmental protection laws and human rights does not naturally exist between trade and
human rights. Concerted action is required within both trade and human rights law if trade

1678
For instance, climate-change related measures have interfered with human rights and food security (eg
dispossession of communities following the acquisition of land for biofuel projects).

Chapter 10: Conclusion and Recommendations 407

liberalisation is going to carried out in ways that progress food security and connected human
rights. This will be discussed further in section 10.5 of this chapter regarding reform
recommendations.

Only non-binding instruments sought to protect vulnerable groups against interferences

with the realisation of human rights stemming from non-state actors (eg FAO’s Pesticide Code,
Voluntary Guidelines on Responsible Land Tenure). This is illustrative of the governance gap
surrounding transnational corporations (TNCs) as international treaties cannot bind such actors
and states are limited in their ability and will to monitor and influence TNCs activities. Non-
binding instruments have given international institutions the space to consider the ways in which
TNCs could be bound by international law; but such instruments currently lack the legitimacy
and accountability mechanisms to have a widespread impact on corporate behaviour, as
evidenced in Chapter 4 on large-scale agricultural land investments and Chapter 8 on pesticides.

An interesting regulatory trend in relation to TNCs was the engagement with supply
chains. For instance, companies had to provide a certificate under the Nagoya Protocol where
they were moving seeds between countries that were signatories to the protocol. Moreover, the
FAO’s Pesticide Code supported the idea of ‘product stewardship’ in which companies had to
exercise control over their supply chains.

Generally, the instruments examined sought to prevent harm, not to facilitate food
security or the realisation of associated human rights. However, three treaties had mechanisms to
strengthen public and private investment in agriculture that could be consistent with the
obligation to fulfil the realisation of human rights. These were the climate finance schemes
connected to United Nations Framework Convention on Climate Change (UNFCCC), the
funding strategy adopted by the UNCCD and the incorporation of monetary and non-monetary
benefits for access and benefit-sharing under the CBD.

Resources mobilised in accordance with the World Food Summit or under the Global
Agriculture and Food Security Program and the Sustainable Development goals are additional
critical sources of resources to improve the contributions agriculture makes to food security.1679

1679
The World Food Summit does not involve specific financial or technological pledges from countries. It sets
general goals relating to official development assistance commitments and the finance of agriculture and food
security more generally in developing countries. For instance, the Declaration of the World Summit on Food

408 Chapter 10: Conclusion and Recommendations

Moreover, the International Treaty on Plant Genetic Resources for Food and Agriculture
(ITPGRFA) (discussed in Chapter 7) had a novel financial mechanism in which they sought to
finance their activities by receiving a share of the profits from companies that had used the
scheme’s plant genetic material.

Overall, though, current public investment in agriculture is below that needed to facilitate a
RBA to FS in most countries due partly to the privatisation of agricultural research and
development.1680 In particular, investment in rural areas of developing countries is typically well
below the standard required.1681 All states need to increase their public investment in agriculture
in ways that are consistent with a RBA to FS. Similarly, developed states and UN agencies need
to increase and improve the mobilisation of resources for agriculture and food security in food
insecure, developing countries.

10.4.2 Special Treatment, Support and Protections for: (a) Currently Food Insecure
Groups and Countries, and (b) Groups and Countries Most Vulnerable to Food
Insecurity.
Some instruments directly considered and sought to improve the capacity of food insecure
groups including the UNCCD, ITPGRFA, CBD, United Nations Declaration on the Rights
Indigenous Peoples and the Convention on the Elimination of Discrimination Against Women.
Others considered those who were vulnerable to food insecurity in their provisions including the
Water Convention, UNFCCC, UNWC and ILO Conventions. Because of its weak, special and
differential treatment provisions, the AoA does not fulfil the criteria of providing special

Security, WSFS 2009/2 (18 November 2009) para 27; The Global Agriculture and Food Security Program is a
multilateral mechanism that pools donor funds to implement the pledges made by G20 countries in September 2009.
It aims to improve food security in low-income developing countries by providing financial grants to food insecure
countries to support food security and agricultural programs and creates financial packages for agribusinesses
working with small-scale farmers. The mechanism has around 912.5 million in public funds. Furthermore, it
provided funding packages with a total value of 77.6 million to private agribusiness in developing countries to
improve, for instance, the access to credit of smallholder farmers. See, ‘Reducing Hunger, Increasing Incomes’
(Annual Report, Global Agriculture and Food Security Program, 2014)
<http://www.gafspfund.org/sites/gafspfund.org/files/Documents/GAFSP%20AR14_LR-pxp.pdf>. In Transforming
our world: The 2030 Agenda for Sustainable Development, GA Res 70/1, 70th sess, Agenda item 15 and 116, UN
Doc A/RES/70/1 (21 October 2015) goal 17 states that developed countries must implement their official
development assistance commitments including their commitment to achieve the target of putting 0.7 per cent of
gross national income towards their official development assistance, and 0.15 to 0.20 per cent of their gross national
income to least developed countries.
1680
As discussed in Chapter 2 and again in Chapter 7.
1681
As outlined in Chapter 9.

Chapter 10: Conclusion and Recommendations 409

treatment and protections for food insecure countries or communities. Likewise, international
investment law is protective of foreign investors, but has no provisions regarding the protection
of vulnerable groups or countries from investor actions.

10.4.3 Procedures in the Design, Negotiation and Implementation of the Instruments That
Reflect Human Rights Principles
Many of the agreements incorporated some human rights principles into their provisions.
Most agreements focused on promoting or requiring participation and transparency in the
implementation of the treaty. In particular:

 the UNCCD promoted participation by taking a bottom-up approach;

 the UNWC incorporated equity considerations by requiring that upstream states

equitably use the river;

 the Water Convention incorporated transparency, equity and participation throughout

its provisions on water quality management;

 the Principles for Responsible Investment in Agriculture and Food Systems explicitly
mentioned human rights principles, including participation, transparency, non-
discrimination, equity and the rule of law;

 CBD/Nagoya Protocol required prior, informed consent of states and communities,

and promoted participation in the development of access and benefit sharing systems;

 ITPGRFA promoted equitable participation of farmers in policies regarding plant

genetic materials;

 The ILO Conventions promoted transparency regarding chemicals by requiring certain

information be provided in various ways (written and pictures) on pesticides;

 The FAO’s Pesticide Code encouraged participation and transparency in pesticide

regulatory frameworks.

Regardless, the majority of the instruments that intersect with agriculture have issues with
compliance and accountability.1682 As illustrated in the discussions on implementation

1682
The instruments that have largely been implemented include the Stockholm Convention, TRIPs and UPOV.
Reasons for the lack of compliance are varied and outside of the scope of the present research. However, compliance

410 Chapter 10: Conclusion and Recommendations

throughout the thesis, state and non-state actors are often unable to be held accountable and/or
the accountability mechanisms are weak.

10.4.4 Mechanisms, Instruments and Provisions That Promote the Sustainable Use of
Natural Resources, Biodiversity and the Maintenance of Ecosystem Services Relied
Upon for Agriculture
Most of the instruments dealing with natural resources were consistent with criterion 4, as
they generally create obligations pertaining to the sustainable use of the resources used in
agriculture. Despite this, obligations regarding agroecological farming methods or the promotion
of such methods was broadly lacking from the regulatory framework. Only three instruments
explicitly mentioned agroecology and the need to scale up agroecology. These were the FAO’s
Pesticide Code, the Voluntary Guidelines on Responsible Land Tenure and the Principles for
Responsible Investment in Agriculture and Food Systems. Additionally, the Paris Agreement and
the non-binding 4 per 1000 initiative have the potential to enable the uptake of agroecological
practices (Chapter 5). Further, the Water Convention promotes alternatives to intensive
agricultural practices (Chapter 6). Specific references to ‘sustainable agricultural practices’ were
also uncommon, for instance, neither the CBD, the UNWC or the Water Convention mention
sustainable agriculture. However, ‘sustainable agriculture’ was explicitly mentioned in Agenda
21 and the UNCCD.

The agreements that place rights over plant genetic materials, which were the Nagoya
Protocol/CBD, UPOV and TRIPs, are incompatible with preserving and facilitating
agrobiodiversity; therefore, these treaties are broadly a hindrance to realising food security.
Likewise, the Agreement on Agriculture incidentally encourages the uptake of industrial
agricultural practices and does not enable the uptake of agroecology in its Green Box measures.
In summary, the current mechanisms for enabling the sustainable use of natural resources used in
agriculture are insufficient for ensuring long-term food security, especially in light of the

issues tend to be caused by conservative economic arguments and political will and/or a lack of resources and
capacities to effectively implement. See generally, James Cameron, Jacob Weksman and Peter Roderick (eds),
Improving Compliance with International Environmental Law (Earthscan, 1996). At the same time, non-compliance
issues also point to issues within how international regulations are formulated and administered. See, Jacon Katz
Cogan (2006) ‘Noncompliance and the International Rule of Law’ 31 The Yale Journal of International Law 189.

Chapter 10: Conclusion and Recommendations 411

multiple, widespread problems caused by unsustainable farming methods and the emerging
threats to the ability of agriculture to provide for food security.

10.5 REFORM RECOMMENDATIONS

Local, national and regional regulations that promote a RBA to FS are essential if
humanity is to face the converging challenges around agriculture, including climate change,
water scarcity and fluctuating international food prices. Furthermore, social movements, and
particularly the food sovereignty movement, are critical for their role in social change and for
representing the interests of farming groups that are otherwise excluded from international policy
development and decision-making. Yet, the globalisation of food and agriculture requires an
effective international regulatory framework for the food system activities that underpin food
security, which therefore includes agriculture.

The table below summarises the key reform recommendations proposed throughout this
research. These suggestions represent alterations to the current framework based on a RBA to
FS. Most of the recommendations require concerted efforts by civil society and Rome-based UN
institutions, as well as states and regional associations. They also require support, financially and
politically, from state and non-state actors. Some of the reform suggestions are not likely to be
contentious, but others first require the overcoming of ideological barriers regarding food
security and agriculture. In particular, a persisting misconception is that sustainable, ecological
farming practices mostly produce less food than ‘modernised’ industrialised farms, which as
Chapter 2 discussed is not always, or even often, the case. The reductivist focus on producing
more food in order to ensure future food security is another, related misunderstanding.

Even if the suggested or similar rights-based changes were made to the framework, the
problems facing food security now and in the future would be far from solved. Bottom-up efforts
are critical due to the scale of food security issues, the fact that changes will have to be made at
the farm level and the correlation between food insecurity and disempowered groups. Initiatives
that enable farmers to build networks and share farming techniques within similar ecological
zones will be vital for adaptation to climate change, food security and for empowering rural

412 Chapter 10: Conclusion and Recommendations

communities.1683 An enabling international regulatory environment, supported by a wide range
of interdisciplinary initiatives, can facilitate such bottom-up efforts, while making its own
contribution towards food security.

More broadly, international economic governance arrangements have not developed in

sync with the global production and distribution of food and agricultural products that has greatly
increased over the last fifty years.1684 Reflective of this point is the failure to regulate agricultural
transnational corporation at international levels and the out-dated function of international
investment law.1685 Korbin argued that:

We are in the midst of a transition from an international to a transnational or post-

Westphalian political-economic system and have not yet developed the modes of
cooperation, institutions or even the language necessary to govern an integrated world
economy effectively.1686

Consistent with Korbin’s observation, global governance needs to be scaled-up in order to

respond to the fact that a few corporations are capable of directly improving food security or
reducing it with limited third-party oversight. As discussed, the Guiding Principles on Business
and Human Rights is a necessary first step.1687 At the international level, the imposition of
binding international law obligations on transnational corporations is required. Such a
development should specifically consider food and agricultural corporations, given this sector’s
unprecedented level of concentration and their close connection with food security and the

1683
Essentially, this is due to the knowledge-intensive nature of ecological farming methods and the specificness of
practices to particular climates. See Chapter 2 for further discussion on this, as well as Chapter 8, which discusses
the varied, positive impacts of farmer-field schools on farmer income and their sense of community, as well as the
sustainability of their farms.
1684
Clapp and Fuchs, above n 41, 1.
1685
The concentration of transnational corporations in the food system also illustrates a failure on behalf of domestic
governments to develop effective and enforceable competition laws.
1686
Stephen J Korbrin, ‘Globalization, Transnational Corporations and the Future of Global Governance’ in Andreas
Geog Scherer and Guido Palazzo (eds), Handbook of Research on Global Corporate Citizenship (Edward Elgar,
2008) 249, 249; Hadii M Mamudu and Donley T Studlar, ‘Multilevel Governance and Shared Sovereignty:
European Union, Member States, and the FCTC’ (2009) 22 Governance (Oxford, England) 73; Manuel Castells,
‘Global Governance and Global Politics’ [2005] Political Science & Politics 9; Stephen D Krasner, ‘Hole in the
Whole: Sovereignty, Shared Sovereignty, and International Law, The’ (2004) 25 Michigan Journal of International
Law 1075.
1687
Human rights and transnational corporations and other business enterprises, UNHRC Res 17/4, 17th sess,
Agenda item 3, UN DOC A/HRC/RES/17/4 (16 July 2011) (Guiding Principles on Business and Human Rights).

Chapter 10: Conclusion and Recommendations 413

realisation of related human rights.1688 At the same time, international developments should not
distract from the need for states, especially developed states, to better regulate corporate actors
extra-territorially.

A stronger rule of law is needed at the international level if a RBA to FS is to be

effectively developed in international agricultural law. Strengthening the rule of law and
governance at the international level is not only a matter of addressing the fragmentation of
international law and improving the regulation of non-state actors by states and international
institutions. It also requires the broader participation of civil society (including farmer and
consumer representatives) and corporate actors in the formation of international regulation and
its implementation. The Committee on Food Security is becoming a useful model in this regard.
Scholars have put forward various ideas for what forms a re-organisation of international
institutions and regulations could take in order to strengthen the rule of law at the international
level.1689 Changes in this regard will be gradual, but clarifying the ways in which sovereignty
and the international order should develop will be important to this transition.

As discussed in Chapter 9, a cultural, political and regulatory shift away from the
reductivist focus on market fundamentalism and economic growth evidence in trade and
investment law is required in order to regulate for a RBA to FS. Arguably, this shift is gradually
underway with an increasing number of governments and international institutions considering
alternative measures of progress beyond the economic growth of a country (measured in terms of
gross domestic product).1690 From this perspective, the agreements and structures underpinning
international economic law, such as trade liberalisation and investment treaties, are tools to

1688
This was emphasised in ‘Agriculture at a Crossroads’ (Global Report, International Assessment of Agricultural
Knowledge Science and Technology for Development, 2009) 87
http://www.unep.org/dewa/agassessment/reports/IAASTD/EN/Agriculture%20at%20a%20Crossroads_Global%20R
eport%20(English).pdf.
1689
See generally, Neil Walker, Sovereignty in Transition (Bloomsbury Publishing, 2003). For instance, scholars
have suggested that international courts and tribunals should be able to apply all international regulations relevant to
the case before them and applicable to the parties in order to start building consistency between trade, environmental
and human rights law. As suggested in, Pauwelyn, above n 1657.
1690
Jeroen van den Bergh and Miklós Antal, ‘Evaluating Alternatives to GDP as Measures of Social
Welfare/Progress’ (56, WWWforEurope Working Paper, 2014) <http://www.econstor.eu/handle/10419/125713>;
Human Development Index (2015) United Nations Development Program <http://hdr.undp.org/en/content/human-
development-index-hdi>; New Ontario Index Puts Wellbeing at the Forefront (13 June 2012) Canadian Index of
Wellbeing <https://uwaterloo.ca/canadian-index-wellbeing/home>.OECD Better Life Index (2016)
<http://www.oecdbetterlifeindex.org/>.

414 Chapter 10: Conclusion and Recommendations

improve food security and the progressive realisation of human rights.1691 When these tools do
not work for food security and the progressive realisation of human rights, protectionist measures
relating to agricultural investment and trade should be employed as part of an inclusive process
at national and international levels.

1691
This point is often discussed by institutionalist. See, eg, Brent McClintock, ‘International Trade and the
Governance of Global Markets’ in Charles J Whalen and Hyman P Minsky (eds), Political Economy for the 21st
Century: Contemporary Views on the Trend of Economics (Routledge, 2015) 225.

Chapter 10: Conclusion and Recommendations 415

Topic  Instruments  Recommendation
Land    United Nations Declaration on the Rights of Indigenous   Indigenous agricultural land rights and farming practices: A specific declaration required to 
Peoples  affirm the connections between and promote state action towards the secure access to 
 Convention Concerning Indigenous and Tribal Peoples in  agricultural lands for indigenous peoples and the continuation of indigenous farming 
Independent Countries  practices. Work towards a binding treaty in this regard should be taken perhaps by the CFS 
 Convention on the Elimination of All Forms of  and FAO. 
Discrimination against Women   Balance between protecting foreign investors and protecting, respecting and facilitating 
 International Investment Law Regime   human rights needs to be struck: Although the Voluntary Guidelines on the Responsible 
 Principles for Responsible Agricultural Investment that  Governance of Tenure of Land and the Principles for Responsible Investment in Agriculture 
Respects Rights, Livelihoods and Resources  and Food Systems are significant developments, international investment agreements are 
 Voluntary Guidelines on the Responsible Governance of  binding, enforceable in international tribunals and largely aimed at protecting foreign 
Tenure of Land, Fisheries and Forests   investors. Therefore, a binding agreement is required in relation to international 
 Principles for Responsible Investment in Agriculture and  investment to balance the rights of foreign investors with obligations under human rights 
Food Systems  and environmental standards. Such an agreement should incorporate dispute resolution 
procedures for communities allegedly affected by an investment. 

Soils    UN Convention to Combat Desertification in those   Integrated approach to natural resource management and regulation: A more coordinated 

Countries Experiencing Serious Drought and/or  approach is required in order to build momentum and mobilise resources around 
Desertification, Particularly in Africa  sustainable soil management. The treaty bodies should foster connections, in line with the 
 United Nations Framework Convention on Climate  eco‐system approach, between treaties dealing with water, land tenure, biodiversity and 
Change  soil should be fostered. Collaborative arrangements should foster agroecology given the 
 Paris Agreement  significant impact industrial agriculture has across natural resources and on environmental 
 Kyoto Protocol  services. 
   
 The 4 per 100 initiative is a novel and useful instrument for promoting the co‐mitigation 
benefits of sustainable soil use. Academics and civil society should track the progress of 
this initiative.  
Water   1997 UN Convention on the Law of the Non‐Navigational   International regulation of domestic water use, groundwater and wastewater needs to be 
Uses of International Watercourses  developed. 
 Convention on the Protection and Use of Transboundary   States should ratify the UNECE Water Convention. 
Watercourses and International lakes   
Seeds    Agreement on Trade‐Related Aspects of Intellectual   It should be debated, involving the participation of Indigenous and traditional 
Property  communities, whether the bilateral access and benefit‐sharing scheme should continue in 
 International Convention for the Protection of New  relation to crop genetic resources, and if so, how can it continue in a way that facilitates 
Varieties of Plants  the sharing and exchange of plant genetic resources.  
 Convention on Biological Diversity (UPOV)   UPOV should be reformed to provide more flexibilities for the re‐use and exchange of 

416 Chapter 10: Conclusion and Recommendations

  Nagoya Protocol  seeds similar to the exemptions that the 1978 text provided.  
 International Treaty on Plant Genetic Resources used for   The International Treaty on Plant Genetic Resources used for Food and Agriculture should 
Food and Agriculture  be widely promoted and awareness increased regarding the system and the importance of 
keeping seeds in the commons.  
Pesticides    International chemical law regime    Maximum Residue Levels need to be more precautionary, participatory and focused on 
 Safety and Health in Agriculture Convention 2001 (No.  human health. 
184) (ILO Convention 184)   New declaration or agreement should be developed that promotes and enables 
 ILO Convention Concerning Safety in the Use of Chemicals  integrated pest management and sets binding targets on pesticide reduction. 
at Work No. 170 (Chemicals Convention) 
 Convention No.138 on the Minimum Age for Admission to 
Employment 1973 (ILO Convention No. 138) 
 International Code of Conduct on the Distribution and 
Use of Pesticides 
 Agreement on the Application of Sanitary and 
Phytosanitary Measures  
 Codex Alimentarius  
Trade   WTO Agreement   States should be required to carry out a human rights impact assessment on a trade 
 Agreement on Agriculture  agreement before being able to ratify the agreement.  
 Special and Differential Treatment provisions should be tailor‐made for each country that 
requires such support and protections.  
 Public investment into agriculture and rural infrastructure in developing countries should 
be part of trade agreements, as without such support low‐income, agricultural dependent 
societies do not receive the benefits of trade on food security or have improved market 
access. For instance, a percentage of the amount of domestic support given to farmers in 
industrial, large agricultural exporting states should go to rural infrastructure in least‐
developed countries.  
 Preferential treatment of least‐developed countries should be increased. 
 Domestic support for agroecological farms should be exempt from reduction 
commitments. Preferential market access for farms that mostly adopt agroecological 
approaches should be allowed. Domestic support to farms that are largely industrial in 
nature should be subject to reduction commitments. Criteria will be needed to determine 
whether a farm is agroecological or industrial.  
Table 10.1 Reform Recommendation

Chapter 10: Conclusion and Recommendations 417

10.6 FUTURE RESEARCH DIRECTIONS

The analysis and findings of this research have implications for future research.

Firstly, future research could expand on the approach taken in this thesis. For
instance, future research could examine how private regulatory tools, such as
supermarket standards and certification schemes, interact with the public
international regulatory framework. This would build a more complete picture of the
regulatory framework and the areas that could be improved or better integrated. On a
related point, future work could examine the various ways in which international
regulations interact (or do not interact) with the other food system activities, apart
from agriculture that underpins food security.

Secondly, this research identified a number of areas that were not covered by
international regulations or were only recently subject to international rules. Areas
that are either not regulated or not largely discussed at the international level, but are
nonetheless critical to agriculture and food security, include animal genetics and
welfare, working conditions on farms (besides in relation to chemicals) and virtual
water flows. Future research should evaluate the implementation and development of
relatively new instruments including the UNECE Water Convention, the ‘4 per 1000’
initiative and the Principles on Responsible Investment in Agriculture and Food
Systems.

Lastly, future studies could examine the ways in which regulations can
incentivise and enable agroecology at national, regional and international levels.
Interdisciplinary research would be particularly useful for such a project.
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