Post 2015 Development Agenda – Global Governance and the Right to Food

by Subhas Gujadhur Blog, Contemporary and emerging human rights issues

In 2000, the U.N. Millennium Summit declared that halving the proportion of people who suffer from hunger between 1990 and 2015 is a key Millennium Development Goal. Also in 2000, the U.N. Commission on Human Rights appointed a Special Rapporteur on the Right to Food in order to “respond fully to the necessity for an integrated and coordinated approach in the promotion and protection of the right to food. In 2004, the U.N. Food and Agricultural Organization unveiled the Voluntary Guidelines on the Right to Adequate Food.

Human rights proponents and economists around the world have begun to address issues of poverty and hunger in both economic and human rights terms. For far too long, however, economic and rights discourses have operated on separate planes, with proponents on each side assuming that they have little to learn from one another. The rights-based approach emphasizes government obligations—rooted in domestic constitutions and international human rights treaties—to ensure immediately that people are free from hunger and ultimately that they have sustainable access to adequate and nutritious food. A rights-based approach includes four essential elements:
(i) evaluating the claims of rights holders and the corresponding obligations of duty bearers;
(ii) developing strategies to build the capacity of rights holders’ to claim their rights and of duty bearers to fulfill their obligations;
(iii) monitoring and evaluating outcomes and processes using human rights principles and standards; and
(iv) finally, incorporating the recommendations of international human rights bodies to inform each step of the process related to ensuring food security.

At first blush, the differences between a free market approach and a rights-based approach may seem insurmountable. Closer examination reveals that the two approaches can reinforce each other. Increasingly, economic thought also acknowledges the importance of government intervention to address market failures. The human rights mentality has also changed over time. Most significantly, there is now greater recognition that the role of human rights advocacy must be to complement market mechanisms, not circumvent them.

Moreover, a rights-based approach calls on governments to pursue reforms, both individually and through international cooperation, which improve methods of production, conservation, and distribution of food. In other words, human rights law requires appropriate economic reforms. In this sense, economic and social rights are both instruments for economic development. To the extent that they are instruments, “the policy consequences of a rights approach overlap considerably with a modern economic approach” to development.

The MDGs were adopted by all members of the United Nations. The first MDG concerns the eradication of extreme poverty and hunger. Specifically, it calls for reducing the proportion of people living on less than $1 a day to half the 1990 level by 2015.It also calls for halving the proportion of people who suffer from hunger between 1990 and 2015. The MDGs represent virtually universal acceptance of the right to be free from hunger, which is the core minimum component of the right to food. Because of the universal participation of states in the preparation and adoption of the MDGs, the MDGs should be viewed as evidence of customary international law. Commitments to the MDGs have also been reinforced or confirmed in other forums, including the WTO’s Doha Ministerial Declaration, the Monterrey Consensus, and most recently, the FAO’s Voluntary Guidelines for the Implementation of the Right to Adequate Food.

The international community’s attempts to actualize the right to food can be found in “over one hundred instruments relevant to the right to food’s definition and establishment as a human right.”

Of particular importance is the Human Rights Council resolution 7/14 of the Human Rights Council in which all states should make every effort to ensure that their international policies of a political and economic nature including international trade agreements do not have a negative impact on the right to food in other countries

GLOBAL GOVERNANCE AND RIGHT TO FOOD

Human rights language is not explicitly referenced in the WTO Agreements while human rights bodies, albeit more critical of the effect of international trade rules on the enjoyment of human rights, have limited engagement with the WTO system. The linkage is undermined further by several WTO members’ concern that human rights enforcement through WTO rules may lead to veiled attempts to protect domestic markets. Such an approach may not appreciate that economic, social and cultural rights are to be gradually implemented in accordance with a country’s resource capacity. Moreover, the use of trade sanctions to obtain compliance with human rights obligations does not lead to overall improvement of human rights protection while the economic impacts can result in the exacerbation of food insecurity.

However, there is a role for human rights in the interpretation of WTO Agreements. The WTO Agreements are not to be read in clinical isolation from the wide corpus of international law that would include human rights instruments. Moreover, there is an increasing recognition that certain rights, such as the right to health and the right to food, are threatened by the implementation of international trade obligations. This interrelationship is expected to forge closer together as the international trading system develops and the understanding of human rights impacts is better understood.

The right to food concerns how food is distributed and its accessibility. International trade rules can both limit and augment the availability of food supply. The Agreement on Agriculture (AoA) governs the import and exports of food and agricultural products. Tariffs, non-tariff barriers, export subsidies and other domestic support mechanisms can impede the fulfilment of the right to food. This is evident in both market distortions and the dumping of subsidised products that can engender price variability. Domestic products can be rendered less competitive with dumped products, limiting incentives for local and small-scale production of food.

The Preamble to the Marrakesh Agreement Establishing the World Trade Organisation (WTO Agreement) recognises numerous non-trade objectives in the preamble. These include raising living standards, optimal use of the world’s resources in accordance with the objective of sustainable development, and ensuring full employment and a large and steadily growing volume of real income. The AoA recognises the importance of food security in its preamble, representing a non-trade concern that is to be regarded by WTO members. The combination of these non-trade concerns provides substantive support for members to take measures to protect citizens’ right to food and ensure its fulfilment. However, the emerging disciplines on tariffs, domestic support and export subsidies under the AoA have limited the range of policy interventions to guarantee such rights

In addition to the AoA, the TRIPS Agreement raises concerns for the right to food. Granting intellectual property rights on plant genetic resources can hamper the ability to reuse seeds that may even be grown for subsistence. WTO Members can adopt an alternative sui generis system. However, these have not been readily introduced in developing countries. Farmers’ rights to retain traditional seeds or exchange them may be restored under the sui generis system such as the UPOV1 Agreement but most developing countries have failed to do so. The ability under UPOV to protect small subsistence farmers that exchange or replant seeds, as well as to protect traditional knowledge, is undetermined.

The SPS Agreement allows for food imports to be restricted if not banned where nutritional and dietary needs are threatened. However, SPS measures in export markets have posed great difficulties for developing countries that have not been able to meet such standards. Without these markets, government revenue, that can be used to ensure food access and availability, is reduced.

WTO Dispute settlement panels and the Appellate Body may not be able to appreciate the graduated nature of economic and social rights as spelt out in the ESCR, as well as the differentiation of implementation relating to level of economic resources, when determining the reasonableness and necessity of a trade restrictive measure on human rights grounds. Its applicability to international trade law is conceptually undefined.

Human rights institutions do not play a role in negotiating WTO rules, leaving WTO Members, made up of individuals from mainly trade ministries, ill-equipped to properly address human rights concerns.

The right to food need to be addressed in then UN post 2015 development discussions both from a human rights perspective as well as more holistically as an issue of global governance and coherence for e.g. the likely impacts of implementing WTO Agreements on food distribution, quality, accessibility and nutritional value will become more pronounced as liberalisation on trade advances.As the Open-Ended Working Group on the Sustainable Development Goals meets for its seventh session in December 2013 at the United Nations in New York, there is a need for better reflection among Member States on the interlinkage of the right to food, global governance and post 2015 sustainable development goals.

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