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International Agricultural Law and Policy

A Rights-Based Approach to Food Security

Hope Johnson

Globalised agriculture and food systems are at the crux of significant issues facing humanity from the rise in diet-related diseases to water pollution and biodiversity loss. Yet, legal scholarship on the regulation of agriculture and food is only now emerging. This timely book provides the first systematic analysis of the public international rules influencing agriculture. Each chapter considers the regulatory instruments that intersect with different components of agricultural systems from land tenure and soils through to agricultural in-puts and trade.
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Chapter 1: Introduction

Hope Johnson

Globalised food systems are threatened by, and contribute to, multiple and converging ‘wicked problems’ with food insecurity at the centre. The two world food price crises that took place within three years of each other (2007–2008, 2010–2011) brought to the forefront the global dynamics that increasingly shape food (in)security and drew attention to the global governance of the food system processes that underlie food (in)security. Although their specific positions differ, international actors generally agree that the existing framework of international rules concerning, or intersecting with, food systems are inadequate to address the entrenched and emerging issues within global agricultural and food systems that undermine food security. Indeed, most of the Sustainable Development Goals agreed to by United Nations (UN) member nations require direct, transformative changes to food systems by 2030.

Food systems increasingly contain global components and transnational actors, while the external drivers to, and impacts of, food systems are largely global in nature, including, for instance, water scarcity, climate change, and the global convergence of dietary trends. Although effective governance alone is not a panacea to food insecurity, the international governance of food systems is a key site for influencing the behaviour of food system actors, and enabling changes to food systems at multiple levels. Unfortunately, international governance arrangements did not keep pace with the globalisation of food systems. Scholars are increasingly identifying deficiencies in the global institutional arrangements for food and agricultural systems (see, eg, Clapp and Cohen 2009), but systematic understandings and analyses of the rules these actors employ remain understudied.

To bring clarity and direction to one dimension of the global governance of food systems, this book provides the first systematic analysis of the international rules influencing food systems. One contribution, however, cannot examine all facets of food systems and their related regulatory frameworks. Instead, this book centres on agriculture within the context of food systems.

As the first activity in food systems, and a dominant sector in many economies, especially developing, agriculture substantially shapes food system outcomes related to food security, including the amount of food available, the sufficiency of financial resources to purchase food required by a country or household, and the qualities of the food available. Furthermore, agriculture is a main cause of the environmental challenges such as biodiversity loss and pollution that undermine, and threaten to undermine, the ongoing functioning of food systems. As a subsystem to broader food systems, agriculture is further subject to the influences of and changes in broader food systems. Finally, agriculture, like food systems more broadly, lacks a body of international rules with common features or objectives as well as coordinated institutions with shared objectives and values. As such, the international regulation of agriculture is representative of broader food system governance and regulatory issues and trends at the international level.

In line with systems theory, this book maps and evaluates each public international regulatory instrument that intersects with elements of agriculture from land and soils through to pesticides and trade. To analyse the diverse range of instruments, this book positions food security as the most desirable outcome of food system activities, which understanding reflects food system scholarship more generally. It follows that regulatory interventions into food systems activities like agriculture should seek to promote, or at least not counter, food security at national and household levels. To consider whether a regulatory intervention is consistent with food security, this book employs a human rights-based approach to instrumentalise the goal and status of food security while operationalising common values that, arguably, should inform international regulation of food systems. From this broad conceptual basis, this book draws out criteria to evaluate whether, and to what extent, the regulatory regimes and instruments that intersect with agriculture are consistent with a rights-based approach to achieving food security. Drawing these facets together, the book identifies and evaluates gaps, strengths and deficiencies in the public international regulation of agriculture to formulate comprehensive reform suggestions.

1.1  CHALLENGES TO WORLD FOOD SYSTEMS IN THE 21ST CENTURY

Food and agriculture are paradoxical areas for research and development. While the world produces enough food to adequately feed everyone, 815 million people are undernourished, and billions are malnourished (eg over-nourished or micro-nutrient deficient) (Food and Agriculture Organization of the United Nations et al. 2017). Agriculture threatens human survival through its role in environmental and human health harms, but it also sustains and enriches human life. To succinctly examine the multiple, converging issues around food systems, Table 1.1 provides a summary of the central concerns facing food and agricultural systems.

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 (World Bank 2007, 109). 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) (Wheeler and von Braun 2013).

Twelve of the 17 Sustainable Development Goals (SDGs) directly address these food and agricultural issues.1 For example, Goal 1 is to ‘end poverty in all its forms everywhere’, including by eradicating ‘extreme poverty’ by 2030; Goal 2 is to ‘end hunger, achieve food security and improved nutrition and promote sustainable agriculture’.2 These goals are placed alongside the SDGs to, inter alia, combat climate change (Goal 13), halt land degradation and biodiversity loss (Goal 15) and ensure the availability and sustainable management of water (Goal 6). In addition to summarising the main challenges facing food and agricultural systems, Table 1.1 connects these challenges with relevant SDGs.

1.2  METHODOLOGY: MELDING SYSTEMS THINKING AND POLICY-ORIENTED APPROACHES

1.2.1  (Food) Systems Thinking

The design of this book is based on a systems perspective, namely the food systems conceptualisation. Food systems has become the predominant way in scholarship and policy of considering the complex factors, processes, and interrelationships that underpin food and agricultural issues. The food chain is a linear understanding of the activities humans carry out from agriculture through to consumption and waste that directly contribute to food and agricultural outcomes. Food systems takes this linear conception and make it a far more holistic and complex framework that examines causal relationships and better reflects messy realities.

Table 1.1 Summary of issues and challenges facing food and agriculture

ChallengeDescriptionExamples of relevant SDG/s
Food wasteWhile estimates vary, well over a billion tonnes of primary food products are wasted in the world each year. Food waste is an issue because it represents wasted 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 and Agriculture Organization of the United Nations 2013). Food 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.

Goal 12.3 ‘Halve food waste by 2030’

Decline in public investment in agricultureExcept for some Newly Industrialised Countries (eg Brazil and China), public underinvestment in agricultural research and development is a persistent and global challenge. Yet, public investment in agriculture plays a distinct and vital role in agricultural and rural development, and in the promotion of food security. It will continue to have an important role in incentivising and providing the knowledge base for and sustainability within agricultural systems. Rural infrastructure development is further critical for improving food security within rural areas of least-developed countries (Pinstrup-Andersen and Shimokawa 2006).

Goal 2.a ‘Increase investment, including through enhanced international cooperation, in rural infrastructure, agricultural research and extension services, technology development and plant and livestock gene banks’

Climate changeClimate 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 accessibility of food. Of particular concern is the increase in droughts and dry spells, which affect both crop and livestock production. Broader changes to agricultural systems are likely, such as the kinds of pests and diseases that affect crops and livestock may change, which in turn may influence the availability and accessibility of food. Even minor changes in temperature can affect crop yields, and require significant changes in farmer knowledge. Although climate change is expected to increase crop growth in certain regions, ultimately its impacts on agriculture and food security are likely to be more detrimental than beneficial (see, eg, Rosenzweig et al. 2014).

Goal 2.4 ‘… implement resilient agricultural practices that … strengthen capacity for adaptation to climate change’

Goal 13.1 ‘Strengthen resilience and adaptive capacity’

Goal 13.b Promote effective ‘climate change-related… management in least developed countries and small island developing states’

Poverty and inequalityApproximately 10.7 per cent of people live on less than US$1.90 a day, which is a 35 per cent reduction since 1990 (World Bank 2013). The majority of the world’s poorest people live in rural areas and are employed in the agricultural sector. Food security depends on economic access to food, and so food insecurity is closely associated with poverty. Income and wealth inequality has increased in developed and Newly Industrialised Countries since the 1980s, which has repercussions for economic access to food and nutritional outcomes (OECD 2015).

Goal 1.4 ‘By 2030, ensure that all …have equal rights to economic resources, as well as …ownership and control over land and other forms of property …natural resources, appropriate new technology and financial services’

Goal 5.a ‘Undertake reforms to give women equal rights to economic resources’

Nutrition transitionDemographic and epidemiologic transitions have changed diet and physical activity trends. The issue with the transition is that Western diets are meat, sugar, saturated fat and dairy intensive, while being low in diversity. Such diets are associated with the rise in non-communicable disease, which has adverse effects on, inter alia, country development. Nutritional and health 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.

Goal 2.2 ‘End all forms of malnutrition’

Goal 3.4 ‘Reduce by one third premature mortality from non-communicable diseases’

Volatile food pricesSince 2006, world food prices have increased and fluctuated, which has in turn increased food insecurity and civil unrest. Prices are expected to remain 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, especially for lower socio-economic 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 (Institute for Agriculture and Trade Policy 2012).

Goal 1.5 ‘Build resilience of the poor and those in vulnerable situations to, inter alia, economic, social and environmental shocks’

Goal 2.c ‘Adopt measures to ensure the proper functioning of food commodity markets …’

Population growth and urbanisationBy 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 1 billion has been projected. Most of the population growth will be based in developing countries, particularly sub-Saharan Africa. Urbanisation is expected to increase to the 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. Urban populations tend to demand more processed, pre-prepared foods and rely on supermarkets for food access. All of these factors will increase and shape demand for food unless trends alter (Department of Economic and Social Affairs of the United Nations Secretariat, Population Division 2015). Continual improvements to infrastructure to support food distribution will be critical.

Goal 9.1 ‘Develop quality, reliable, sustainable and resilient infrastructure’

Goal 11.a ‘Support … links between urban, peri-urban and rural areas by strengthening national and regional development planning’

Resource scarcity and pollutionResource scarcity, particularly in land, fresh water, energy and genetic materials, is a large issue for food systems. Agriculture is the principal user 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 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.

Goal 12.4 ‘By 2020, achieve the environmentally sound management of chemicals and all wastes’

Goal 14.1 ‘By 2025, prevent and significantly reduce marine pollution … including nutrient pollution’

Goal 15.1 ‘By 2020, ensure the conservation, restoration and sustainable use of terrestrial and inland freshwater ecosystems’

Corporate concentration It is common within food systems for a few transnational corporations to exercise great power over food processing, retail, and distribution, as well as in the markets for inputs used in food system activities. As market actors consolidate, their market share expands, the number of competitors reduces, and the remaining entities increasingly influence prices and create barriers to entry for potential competitors (Briones and Rakotoarisoa 2013).

Goal 8.3 ‘… encourage the formalization and growth of micro-, small- and medium-sized enterprises, including through access to financial services’

Goal 12.6 ‘Encourage companies, especially large and transnational companies, to adopt sustainable practices and to integrate sustainability information into their reporting cycle’

Goal 16.3 ‘Promote the rule of law at national and international levels’

Biodiversity loss, especially in relation to on-farm biodiversityDiversity in the components of agricultural ecosystems is critical for food production, the development of new varieties and species, and for adapting to climate change. Biodiversity is also essential for dietary diversity. Overall, 75 per cent of the world’s food is generated from only 12 plants and five animal species, which suggests that local or traditional varieties are highly underutilised and underdeveloped (FAO 2015).

Goal 2.5 ‘By 2020, maintain the genetic diversity of seeds, cultivated plants and farmed and domesticated animals …’

Goal 15.1 ‘By 2020, ensure the conservation, restoration and sustainable use of terrestrial and inland freshwater ecosystems and their services, in particular forests, wetlands, mountains and drylands’

Environmental impacts of, and animal welfare in, intensive livestock productionPractices such as concentrated feeding lots, slaughtering systems and the exporting of live animals have raised considerable animal welfare and food safety concerns. Likewise, the environmental impact of producing meat is especially high when compared to crops (see, eg, Steinfeld et al. 2006). Diets high in red and processed meat are risk factors for non-communicable diseases (Bouvard et al. 2015).

Goal 2.4 ‘By 2030, ensure sustainable food production systems and implement resilient agricultural practices that increase productivity and production, that help maintain ecosystems’

Goal 12.5 ‘By 2030, substantially reduce waste generation through prevention, reduction, recycling and reuse’

Food safety issuesApproximately 351,000 people worldwide die from food poisoning each year and there are around 582 million reported cases (World Health Organization 2015). 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 was contaminated. As food systems have become more industrial and part of globalised networks, food safety risks and impacts have increased (see, eg, World Health Organization 2014).

Goal 2.1 ‘By 2030, end hunger and ensure access by all people …, to safe, nutritious and sufficient food all year round’

Goal 3.9 ‘By 2030, substantially reduce the number of deaths and illnesses from hazardous chemicals and air, water and soil pollution and contamination’

Food systems also has a specific conceptualisation that stems from scholarly works associated with an international, interdisciplinary research programme entitled Global Environmental Change and Food Systems (2001–2011) (Ericksen 2008; Liverman, Ericksen, and Ingram 2010). Gregory, Ingram, and Brklacich (2005, 2139) explained the conceptualisation as follows: ‘Dynamic interactions between and within the biogeophysical and human environments lead to the production, processing, preparation and consumption of food, resulting in food systems that underpin food security … food security is, therefore, diminished when food systems are stressed.’ As reflected in this quote, this body of work conceives of food systems as activities humans and organisations carry out, and the interactions between these activities and environments, which directly influence food security.

The basic activities, or food chains, that make up a food system can, and increasingly do, operate at global and local levels. For instance, one or more food system activities may be conducted across several countries, by various actors, before being consumed by a household in another region. Additionally, the external factors that influence an otherwise domestic or local food system may be global in nature, such as world food prices or environmental-related shocks. Meanwhile, the processes underpinning food systems have global impacts, such as agriculture-driven deforestation or the convergence of global dietary trends.

Systems thinking underpins the design of this book in three ways. First, the book frames regulation as an external factor that shapes food system activities, and particularly the behaviours of food system actors in relation to agriculture. Secondly, this book examines the regulations that intersect with agriculture in a systematic way: by examining the different regulations to make up a whole and through considering how these regulations, individually and in interaction with each other and food system actors, influence or fail to influence food systems.

Thirdly, systems thinking attributes a goal to a system; this book positions food security as the goal of global food systems functions. In doing so, this book explores desirable modifications (ie reforms) to an external driver (ie regulation) to produce the desired goal within food systems.

To adopt a systems perspective, this book understands agriculture to be one of many complex subsystems within broader food systems. 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’ (McConnell and Dillon 1997, para 1.1). Put simply, agricultural systems encompass what happens at the farm level to produce food.

To identify the regulations that intersect with agriculture, on-farm components (those that operate within a prescribed physical boundary) were identified following the approach of Meadows (2008, chap. 1). Accordingly, this book identifies the on-farm elements as: the natural resources and processes to grow food (eg land, soil, water, ecosystem services, vegetation, atmospheric conditions), the human labour and knowledge required, and external inputs, such as machinery and pesticides.

Each chapter in this book analyses the regulation of one on-farm element. Admittedly though, amendments to this approach were necessary for reasons of scope. To begin, some natural resources were only considered in connection with land, soils, and water. This was generally due to the omnipresence of other natural resources and processes, as well as their intersection with all aspects of agricultural production (eg biodiversity, animals, ecosystem services, atmospheric conditions). Not all external inputs were included as they are numerous, and many are not directly subject to international regulation. Instead, the book focuses on pesticides and seeds as these inputs are the most regulated external inputs at the international level. 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. For instance, Chapter 7 discusses the workplace health and safety standards relevant to farm workers, while Chapter 3 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 a focus. Yet, Chapter 8 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 8 deals with the regulation of agricultural trade, which is arguably more centred on distribution activities in food systems 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.

1.2.2  Policy-oriented Approach

While this book adopts a systems-thinking perspective in terms of its design, it adopts a policy-oriented approach to legal analysis. This means it understands regulation to be a continually evolving process that aims to recognise, promote, and ensure commonly shared, intrinsic values.3 A policy-oriented approach positions law as a continually evolving decision-making process that aims to recognise, promote, and ensure commonly shared intrinsic values. Accordingly, the policy-oriented approach conceives law as an instrument to achieve social goals, including human dignity and world order in particular (see, eg, Wiessner and Willard 1999). 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’ (Chen 2014, 14). As part of this conception of law, a policy-oriented approach to legal analysis examines not only the substantive rules but also the context surrounding the formation and implementation of the rules (see, eg, Reisman, Wiessner, and Willard 2007).

In line with the policy-oriented approach, this book proposes that the international regulatory framework for agriculture should seek to attain world food security because it is a critical precondition to the ultimate goal of realising the human right to adequate food for all. For regulatory interventions to contribute to the realisation of this goal, the regulations that intersect with agriculture should be consistent with a rights-based approach. A rights-based approach to agricultural regulation for food security is, therefore, the conceptual model used in this book for analysing governance and regulatory arrangements in a manner consistent with widely shared values based on human dignity. Chapter 2 explains the conceptual model further.

1.3  THE INTERNATIONAL ORGANISATIONS DETERMINING FOOD SYSTEM RULES

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. This book interprets global governance as the arrangements reached collaboratively to respond to global issues. It encompasses ‘the sum of laws, norms, and institutions that define, constitute and mediate relations among citizens, society and markets, and the state in the international area’ (Weiss and Thakur 2010, 5–6).

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. 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 intergovernmental organisation, an international financial institution (eg investment group, World Bank), civil society, a transnational corporation (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.

1.3.1  Rome-based Agencies

The three main public international institutions seeking to influence food systems are specialist UN agencies, based in Rome, which share the common goal of reducing food insecurity.

The first is the Food and Agriculture Organization of the United Nations (FAO), which is an intergovernmental body with 194 member nations. Representatives of member nations report to, and access the work of, the FAO and they elect new leaders for the agency. The overarching objective of the FAO is to achieve food security for all through the eradication of food insecurity, the improvement of socio-economic conditions, and the sustainable use and management of natural resources for present and future generations. The FAO’s main activity is collecting, analysing, interpreting, and disseminating information that relates to nutrition, food, and agriculture.4 It also provides technical assistance to governments upon request, and carries out initiatives to action its recommendations. Perhaps because of its structure and information-gathering role, the FAO rarely critiques international food system actors or recommends a structural reform.

The International Fund for Agricultural Development (IFAD) is the second specialised agency of the UN seeking to influence food systems. Unlike the FAO, IFAD is an international financial institution. IFAD’s primary function is to provide financial support to programmes and projects targeted at improving the income and food security status of poor rural people (IFAD 2017).

Finally, the World Food Programme (WFP) is the UN’s food aid programme, which 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 and other resilience-building activities that contribute to long-term food security goals.

1.3.2  Committee on World Food Security

Several institutions have been developed or reformed since the Global Food Price Crisis in 2007–2008 to improve coordination between institutions and enhance the coherency and effectiveness of food systems governance.5 Perhaps the key international institutional development was the reform of the Committee on World Food Security (CFS) led by the FAO.

Originally formed in 1974, the CFS is an intergovernmental body to review UN policies related to food security. In 2009, the 127 member states agreed that the CFS should be the main international forum through which they collectively make decisions about food and agriculture policy at the international level.6 At this time, the member states restructured the CFS to become a more inclusive medium. Currently, a wide range of stakeholders working in the areas of agriculture, food, nutrition, and food security take part in the CFS as participants, members, or observers.

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 Programme);
●  civil society organisations and NGOs;
●  international agricultural research groups (eg the Consultative Group on International Agricultural Research);
●  international and regional finance institutions (World Bank, World Trade Organization, IMF);
●  private sector associations and private philanthropic foundations.

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 that have reached consensus among members. 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 provision of a space for coordinating global approaches to food-related issues. 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 (Committee on World Food Security 2014). Improved coordination among food-related institutions stemming from the reform of the CFS is a positive development for global food systems governance, and this book will contribute to discussions on how and whether the CFS has contributed to more consistent and coherent governance arrangements.

1.3.3  Other International Institutions

Food and agricultural governance is further spread across a range of institutions that directly and indirectly seek to influence food systems. 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 (WTO) 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.

Among non-state actors, TNCs are now perhaps the most highly influential actors in global food systems. According to civil societies, 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 the global pesticides market, and five TNCs control over 80 per cent of the global trade in bananas (Murphy, Burch, and Clapp 2012; ETC Group 2011). Besides agricultural input and output markets, global supermarkets have also risen as important TNCs that act like gatekeepers to markets and as such significantly influence food systems (Hattersley and Dixon 2013, 188).

1.4  TERMINOLOGY

1.4.1  Country Categories

No ideal terminology exists for grouping diverse countries, and grouping countries risks isolating food insecurity as an issue for certain country categories, even though it exists to varying extents in all countries. This book varies the terminology used to categorise countries depending on the instrument, context, or issue. Generally, the broad groupings of developing, developed and least-developed economies are employed, as defined by the UN.7

Where appropriate, the terms Least Developed, Landlocked Developing and Small Island Developing (LLS) states are used to delineate those developing countries that are particularly vulnerable to food insecurity at a national level due to extreme poverty and limited governance, financial and productive capacities that are exacerbated by their geographic positions. The book also employs the term Newly Industrialised Countries (NICs) to refer to those countries that are broadly considered developing, but are also large agricultural and food importers and exporters who have experienced significant economic growth since the 1970s, including China, Argentina, Brazil, Mexico, South Africa, India, Indonesia, Malaysia, the Philippines, Thailand, and Turkey.

1.4.2  International Regulation

The understanding of international regulation for this book draws on the decentred understanding of law developed by Julia Black combined with the perspectives of law derived from the policy-oriented approach (Black 2001; 2008). Accordingly, this book adopts a broad understanding of regulation, which is perhaps best captured by Scott’s definition of regulation as ‘any process or set of processes by which norms are established, the behaviour of those subject to the norms monitored or fed back into the regime and for which there are mechanisms for holding the behaviour of regulated actors within the acceptable limits of the regime’ (2001, 286).

This book considers public international regulation to be those informal, non-binding, or ‘soft’ rules (eg codes of practices, guidelines, and principles) and formal, legally binding, ‘hard’ regulations (multilateral agreements and international court decisions). Regardless of whether an instrument is binding or non-binding, this book will consider it as a public international regulation where it was created by multilateral entities and intergovernmental organisations or otherwise agreed to by states. The distinction rests, therefore, on the extent to which the formal legal authority of state governments is required for the design and implementation of an instrument.

More specifically, the UN, the WTO, the Bretton Woods Institutions (eg World Bank) and international courts/tribunals promulgate public international regulations. Treaty bodies and international courts/tribunals also enhance the meaning of a rule by providing interpretations. These institutions are reflective of governments because they claim the authority to disseminate publicly rules or standards that apply to a broad range of actors, often with consequences for failing to comply. They also rely on state sovereign powers to negotiate and implement their instruments. These factors support framing the instruments created by such bodies as public international regulations.

In analysing these kinds of regulatory instruments, certain factors become more relevant than when a state issues a command-and-control form of regulation. Considerations that arise commonly centre on whether a rule is legitimate, able to influence outcomes, and capable of holding actors accountable.

Whether a rule is legitimate depends on a range of factors. Franck (1990) identified these factors as ‘textual determinacy’, ‘coherence’, ‘symbolic validation’, and ‘adherence’. ‘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. ‘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 1990, 193).

Whether a rule maker is authoritative and legitimate depends on the perception of their standing and authority of those the rule maker seeks to address and influence (Black 2008, 144). It is useful to distinguish here between legal, moral, and social legitimacy. Thomas (2014, 7) 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’. Moral legitimacy exists where an institution performs governing processes in line with some form of moral criterion (eg religion, custom, or intrinsic values) (Foldvary 2011). Unlike the previous forms, social legitimacy is primarily subjective and exists where actors perceive an institution as having the ability to govern (Bodansky 2012).

Whether a rule influenced an outcome is in part a question of fact. For instance, the International Union for the Conservation of Nature (IUCN) has been developing a methodology, with the assistance of multiple stakeholders, to evaluate the effectiveness of legal principles at a national level (IUCN 2017). Another, related way to consider the influence of a rule is the strength of its accountability mechanisms. 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 (Black 2008, 150). This book draws on empirical evidence regarding implementation of the regime being examined, as well as its accountability mechanisms, to comment on the impact of a particular set of rules.

1.4.3  Agriculture and Small-scale Farming

Agriculture is the ‘cultivation of crops and animal husbandry, as well as forestry, fisheries, and the development of land and water resources’ (Ciparisse 2003, para 7.A.2). For reasons of scope, the following discussion does not consider directly, or otherwise in great depth, fisheries, forestry and aquaculture; hence, references to ‘agriculture’ tend to be to the 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.

In addition to agriculture generally, this book often refers to a certain type of agriculture termed small-scale farming, which term is used interchangeably with smallholder agriculture, small-scale farmers, or family-based farming. Small-scale farming generally refers to farms that have scarce resources (including but not limited to land, labour, and water). A useful definition of small-scale farming comes from the CFS’s High Level Panel of Experts. They explained that smallholder agriculture is

practised 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 (The High Level Panel of Experts 2013, 10).

Other characteristics of small-scale farming may include: low use of external inputs (eg pesticides, synthetic fertiliser, etc), limited resources, low market access, high capacity for local innovations related to ecosystem knowledge and genetic resources, and high vulnerability to external pressures.

This book often refers to small-scale farming because it is especially critical to world food security. First, small-scale farmers substantially contribute to the world’s food supply, with estimates ranging from 53 to 80 per cent of food being produced by smallholders.8 Secondly, smallholder farmers generally practise low-input agriculture that is more consistent with sustainable agriculture than intensive methods. 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) (FAO 2012, 21).

1.5  OUTLINE OF THE BOOK

This book contains two introductory chapters, including the present chapter, which has introduced the book’s purpose, scope, and context. Chapter 2 provides an in-depth examination of conflicting paradigms for food system regulation and development, and charts the concepts that inform the conceptual framework for analysis. Consequently, Chapter 2 formulates a rights-based approach to agricultural regulation for food security and the criteria that underpin the book’s reasoning in subsequent chapters.

Each of Chapters 3 to 8 examines one component of agricultural production systems and evaluates the intersecting international regulatory instruments against the conceptual framework. Chapters 3 and 4 concern the public international regulation of land. Chapter 3 examines the international regulation of land tenure with a specific focus on recent trends in large-scale agricultural land acquisitions involving foreign entities. Chapter 4 examines the international regulation of soils, and supports calls for a soil-specific treaty.

Chapter 5 elucidates the international regulation of fresh water as it relates to agricultural water use, and the crux of the analysis is on gaps, innovations, and inconsistencies across the regimes. Chapter 6 concerns those international regulations that influence seeds, namely international access-and-benefit-sharing schemes and intellectual property law. This chapter centres on the difficulties of maintaining informal seed systems and common pools of plant genetic resources for food and agriculture. Chapter 7 examines the international regulation of pesticides, covering agreements from international labour standards through to maximum residue limits on food. Chapter 8 is the last substantive chapter and it focuses on agricultural trade liberalisation under the WTO’s Agreement on Agriculture. Chapter 9, which is the final chapter, ties together the conclusions and reform recommendations from Chapters 3 to 8, and concludes by reflecting on the broader implications of the book’s findings for global food system governance.

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1  Mason and Lang 2017, 279.
2  Transforming Our World: The 2030 Agenda for Sustainable Development, GA Res 70/1, Agenda Items 15 and 116, UN Doc A/RES/70/1 (25 September 2015).
3  The germinal work on the policy-oriented approach is Lasswell and McDougal (1943). Later, McDougal (1959) developed the method further.
4  Basic Texts of the Food and Agriculture Organization of the United Nations, vols I–II, 2013 edn, art 1(1)–(2).
5  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.
6  Reform of the Committee on World Food Security, UN Doc CFS: 2009/2 Rev.2, 35th sess, Agenda Item III (October 2009).
7  See the Statistical Annex to the World Economic Situation and Prospects Report (2016).
8  According to the FAO (2014, 9), small-scale farmers produce 80 per cent of the world’s food. Another study by Graeub et al. (2016) used a different methodology and estimated that around 53 per cent of the world’s food is produced by small-scale farmers.