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Could human rights law be used to influence food policy - from seed, field and farmer right through to what ends up on our plates?

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Putting people at the heart of the sustainable food debate

Dr Naomi Salmon

November 8th, 2013

Naomi Salmon argues that human rights law can - and should - have a crucial role in the fight to green our food systems ...

There is a duty to move towards the full realisation of a culturally embedded, socially just and durable human right to adequate food, for all.

Our food system is broken. The way we eat is making us fat and sick. It is depleting the Earth’s resources, contributing to (domestic and global) economic and social injustice, and making a disproportionate contribution to the nation’s GHG emissions. Numerous reports and strategy documents detailing the emerging crisis in food and farming have been published in recent years.  But still, despite the increasing urgency of the situation, agri-food policy reform continues to be painfully slow.   

Overall, government seems to have very little appetite for the drastic policy shifts necessary to genuinely ‘green' our food system - from farm, to table to waste stream. The reasons for this are wide-ranging and complex.  One key barrier to reform is the fact that long-term sustainability is a policy goal that cannot easily be reconciled with the trade liberalisation ‘imperative' embedded the EU and WTO regulatory frameworks; and it is these rules which largely dictate the terms of the UK’s domestic food law.

Food security (and, thus, sustainability) is a legitimate policy concern under both EU and WTO rules. However, the manner in which these rules are framed and enforced ensures that any forward-thinking government attempting to move unilaterally and purposefully towards a genuinely sustainable food economy will hit problems. The bottom line here is that the policing of the tangible and more immediate threat of protectionism will tend to take precedence over less concrete, longer-term concerns – such as the slide towards ecological collapse and the spectre of future food insecurity. 

That said, we are living in a time of transition. The world, and our understanding of it, is changing rapidly. Inevitably, as the global food security crisis deepens, the interpretation of key trade rules will adapt to new realities. Over time, it will become easier for states to justify (trade restrictive) ‘green’ agri-food policies by reference to the three legitimising benchmarks that have been built into regional and international trade rules; namely necessity, cost-effectiveness and proportionality. The stakes are, however, far too high for reliance on this primarily reactive process to be a wise option. If the government is serious about securing a sustainable and food secure future for the UK, it must act now, today!

This is where the explicit language of human rights might usefully be brought into play: to highlight and to bridge the gap between the obstructive (and destructive) short-termism of trade law and the ‘sustainability imperative' that must underpin 21st century food policy.

To some, such an approach will seem inappropriate, or even obscene, when the focus is on the rights of over-fed British consumers. Additionally, it might be argued that both public and government antipathy towards (civil and political) human rights will render the language of rights impotent.

But, in fact, whilst it may initially seem counter-intuitive, an explicit focus on this most basic of human entitlements - the right to food - could prove helpful in directing policy-makers' attention towards the fundamentals of materially and ethically sound agri-food policy. When it comes to the issue of food security, it is not only the rights of 'others' that are at issue. This is about our rights, the rights of our children and the rights of their children too. This gives the language of food rights significant political clout.  

So, let's talk about rights!

The fundamental human right to food is, of course, implicit within key civil and political rights such as, to give an obvious example, the right to life. It has also been expressly incorporated into two of our most important international human rights instruments: the non-binding Universal Declaration of Human Rights 1948, and the later, legally authoritative, International Covenant on Economic, Social and Cultural Rights 1966 (hereafter, the Covenant).

Whilst the Universal Declaration has been highly influential in establishing the broad landscape of international human rights protection, it is the Covenant that imposes concrete legal duties on all states parties (including the UK) to respect, protect and fulfil their population's food rights.

Article 11(1) of the Covenant expresses the human right to food as one of the core elements of the umbrella right to an adequate standard of living:

"The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing ......."

This is all well and good, but what does this mean for states and their citizens? What must states do in order to fulfil the obligations imposed upon them by this treaty provision? What does the right to food mean for us, for you and for me? Much has been written on this topic but for current purposes one source will suffice: General Comment No.12 on the Right to Food, drafted in 1999 by the Committee on Economic, Social and Cultural Rights (hereafter, the Committee). This document is widely accepted as providing an authoritative account of the normative content of the right to adequate food.

Unsurprisingly, the Committee’s analysis confirms that, as a bare minimum, states must ensure that their population has access to at least enough food to stave off hunger. In addition to satisfying this ‘baseline’ obligation, states parties are also required to move progressively, and as expeditiously as possible, towards the full realisation of a culturally embedded, socially just and durable human right to adequate food, for all.

Importantly, for the purposes of the current discussion, the Committee firmly aligns the concept of ‘adequacy' to those of ‘sustainability' and ‘food security.'

"The notion of sustainability is intrinsically linked to the notion of adequate food or food security, implying food being accessible for both present and future generations. The precise meaning of ‘adequacy’ is to a large extent determined by prevailing social, economic, cultural, climatic, ecological and other conditions, while ‘sustainability’ incorporates the notion of long-term availability and accessibility."

This makes perfect sense. After all, however we might choose to define ‘adequacy' today, there is no escaping the fact that ultimately, our access to a diet that is ‘adequate' is wholly dependent upon the sustainability of the system that produces and supplies our food. To put it bluntly, there can be no doubt that sustainability is a pre-requisite for medium to long-term food security.

Thus, whilst trade law tends to encourage self-indulgent and wasteful definitions of ‘adequacy,’ human rights law demands that this concept be treated as something of a moveable feast. We do not have an inviolable right to eat whatever and however we wish, regardless of the implications of our consumption. Our material entitlement to adequate food must be determined with reference to and, crucially, must be constrained by, the wider environmental, economic and social impacts of production, consumption and waste.

If we look at this from the domestic policy and regulatory perspective, it is clear that whilst we are entitled to a high level of protection of our food interests, the state is not obliged to provide us with the highest possible level of protection of our individual dietary preferences. Instead, government is obliged to do its best to strike the optimum balance between citizens' entitlements on the one hand and the wider interests of society, on the other. If it is to comply with its human rights obligations, the UK must now be uncompromising in its prioritisation of long-term human and ecological well-being over more transient issues of free movement and consumer protection, from farm to table.

For various reasons, there is little scope for enforcement of food rights in UK courts. Nonetheless, the food-rights ‘trump card' can still be a powerful catalyst for change. There are numerous areas where an explicit re-framing of arguments in the language of (food) rights could strengthen calls for radical policy interventions. Obvious examples that spring to mind include on-going campaigns for: improved consumer access to regionally and locally produced foods; stronger food education in schools; and tighter restrictions on advertising of junk food to children.

Food-rights based arguments could also add muscle to food justice campaigns aimed at improving conditions for the agricultural workers who produce many of the popular but controversy ridden foods that we take for granted - such as oranges, tomatoes and cocoa. The appalling labour and living conditions endured by some of these people have been described as a form of ‘modern slavery.' Bearing in mind the boundaries imposed upon ‘entitlement' under Article 11, our ‘right' to consume these foods must surely fall into question.

It is clear that the practical task of building a food-secure future for the UK will not be easy. Deeply entrenched consumer expectations and culturally embedded dietary habits will be difficult to overcome. Strong interventions will be required. These could include, for example, mandatory sustainability labelling of key food products, measures to strengthen local supply chains, targeted taxation programmes and even, perhaps, direct rationing of (resource intensive) meat and dairy products.

We need a new strategy: one that can transcend the dogma of the free-trade logic, focusing attention firmly on what must be the ultimate goal of any rational food policy - feeding the people and feeding them well. The language of human rights offers such a way forward. Reframing the ‘food futures’ debate in this manner highlights the special character and fundamental importance of this market sector to human survival and well-being. It also neatly lifts food and agriculture out of the mire of destructive free-trade politics by emphasising, very firmly, the obligatory character of sustainability as the primary objective of any legitimate domestic policy framework.

In addition, at the supermarket shelf, the explicit language of human rights clarifies the boundaries of our entitlements, as individual consumers. By providing a concrete basis for both ‘soft' and ‘hard' law interventions in the market, this approach places People and Planet at the very heart of the debate; demanding that the rights and needs of the embodied human, from farm-worker to diner, be prioritised over those of the disembodied market.

So, let's re-frame the sustainable food debate: Let's talk about rights!

Dr Naomi Salmon is based at Aberystwyth University, where she works as a lecturer and researcher in the Department of Law and Criminology. Her published research addresses key issues of food governance, with a focus on the interests and rights of the end consumer.

Further details can be found here.

References for the above article are available on request. Please write to ecologist.editorial@resurgence.org.


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