Juliane Minnaert
University of Amsterdam
Master 2
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FOOD
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OVEREIGNTY
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NTERNATIONAL
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Supervisor: Prof. Dr. Y.M. (Yvonne) Donders
International human rights and cultural diversity
Faculteit der Rechtsgeleerdheid
Afd. Internationaal & Europees Publiekrecht
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CONTENTS
Chapter 1: Introduction...1
Chapter 2: The development of the right to food sovereignty by the peasant
movement...3
2.1 The pre-existing framework...3
2.1.1 The right to food...3
2.1.2 Food security...4
2.2 The emergence of a new model...6
2.2.1 The food sovereignty paradigm...6
2.2.2 The right to food sovereignty...8
2.3 Sub-conclusion...10
Chapter 3: The right to food sovereignty in the Declaration on the rights of
peasants and other people working in rural areas...11
3.1 The subjects of the right to food sovereignty...11
3.1.1 The right to food sovereignty as a collective right...12
3.1.2 The right to food sovereignty as an individual right...14
3.2 The articulation of the right to food sovereignty and the right to adequate food...15
3.2.1 The precise definition of the right to food as a component of the right to food sovereignty...16
3.2.2 The double recognition of the right to food in the Declaration on the rights of peasants and other people working in rural areas...18
3.3 Sub-conclusion...19
Chapter 4: The future of the right to food sovereignty...20
4.1 The lack of consensus among States on the right to food sovereignty...20
4.1.1 The reduced visibility of the right to food sovereignty...21
4.1.2 The reduced content of the right to food sovereignty...22
4.2 The development as a customary norm of international law...24
4.2.1 The recognition of the right to food sovereignty by some States...24
4.2.2 The content of the right to food sovereignty in States recognizing it...25
4.3 Sub-conclusion...28
A
BBREVIATIONS
ALBA Bolivarian Alliance for the Peoples of our America CESCR Committee on Economic, Social and Cultural Rights
CHR Commission on Human Rights
CRC Convention on the Rights of the Child
ECOWAS Economic Community of West African States
EU European Union
FAO Food and Agriculture Organization of the United Nations
FPIC Free, prior and informed consent
HRC Human Rights Council
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
IGWG Intergovernmental working group
OHCHR Office of the High Commissioner for Human Rights UDHR Universal Declaration of Human Rights
UN United Nations
UNGA United Nations General Assembly
UNDRIP United Nations Declaration on the Rights of Indigenous Peoples
UNDROP United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas
WFS World Food Summit
Chapter 1: Introduction
Food sovereignty is “at once a slogan, a paradigm, a mix of practical policies, a movement and a utopian aspiration”.1 Is it capable of being a right?
The concept of food sovereignty was developed in the 1980s.2 Since then, it has found its way into
the demands of several NGOs, most of which bring together peasants. Therefore we will use the expression “peasant movement” to designate the movement which demands food sovereignty, without entering the details of the NGOs and movements composing it.3 We can still note the
name of the most emblematic one, La Via Campesina.
This movement does not include all the peasants, nor all the NGOs fighting to eradicate hunger in the world. Some prefer to advocate for a better application or a new interpretation of the right to adequate food (that will also be referred as the right to food), an already well-established right in international human rights law.4 We will focus our analysis on the peasant movement which
demands food sovereignty. As we will see, a distinction has to be drawn between the food sover -eignty paradigm, which includes all the demands of this movement, and the right to food sover-eignty itself, which is part of this paradigm.
There are not many sources on this right. The peasant movement often mentions “food sover-eignty”, but more rarely the “right to food sovereignty”.5 The literature is also quite poor on the
subject. Several authors have examined the food sovereignty movement from a sociological or an-thropological perspective.6 Others have studied the legal claims of this movement, but rarely
focus-ing solely on the right to food sovereignty and its recognition in international law.7 Some authors
have studied the recognition of this right in the national law of several States.8
1 Marc Edelman, Food sovereignty: forgotten genealogies and future regulatory challenges, 2014, The Journal of Peasant Studies, 41:6, 959-978, 960.
2 Ibid, 967 ff.
3 For further details see Priscilla Claeys, Human Rights and the Food Sovereignty Movement. Reclaiming control. London: Routledge, 2015, 5.
4 Ibid, 4 ff. 5 Ibid, 18.
6 See e.g. Priscilla Claeys, The Creation of New Rights by the Food Sovereignty Movement: The Challenge of Institu -tionalizing Subversion, 2012, Sociology 46 (5): 844–860; Edelman, Food sovereignty (n 1); Emma Larking, Mobil-ising for food sovereignty: the pitfalls of international human rights strategies and an exploration of alternatives, 2019, The International Journal of Human Rights, 23:5, 758-777; Michael Windfuhr and Jennie Jonsén, Food Sover-eignty : Towards Democracy in Localized Food Systems, 2005, Rugby : FIAN International, ITDG Publishing.
7 See Claeys, Reclaiming control (n 4); Christophe Golay, Legal reflections on the rights of peasants and other people working in rural areas, Background paper, Prepared for the first session of the working group on the rights of peas -ants and other people working in rural areas (15-19 July 2013), https://www.ohchr.org/Documents/HRBodies/ HRCouncil/WGPleasants/Golay.pdf (accessed 3 June 2020); Christophe Golay, Research Brief, The rights to food sovereignty and to free, prior and informed consent, March 2018, Geneva Academy, https://www.ohchr.org/ Documents/HRBodies/HRCouncil/WGPleasants/Session5/GenevaAcademyResearch.pdf (accessed 3 June 2020). 8 See e.g. Patrick Clark, Can the State Foster Food Sovereignty? Insights from the Case of Ecuador, 2016, Journal of
Agrarian Change, Vol. 16 No. 2, pp. 183–205; Ben McKay, Ryan Nehring and Marygold Walsh-Dilley, The ‘state’ of food sovereignty in Latin America: political projects and alternative pathways in Venezuela, Ecuador and Bolivia, 2014, Journal of Peasant Studies, 41:6, 11751200; Puspa Sharma, The ‘sovereignty’ of food sovereignty: An in -quiry with insights from Nepal, Presentation at the ECPR General Conference, University of Hamburg, 22-25 Au-gust 2018, https://ecpr.eu/Filestore/PaperProposal/ab2aaec7-db03-41fc-8f62-eacc2772c74c.pdf (accessed 12 June 2020).
The adoption of the Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP) by the UN General Assembly on December the 17th, 2018, is the opportunity to
study the right to food sovereignty itself, and particularly its recognition in international law. In -deed, the UNDROP is the first international text, even though this text is non-legally binding, that includes this right. Following questions can thus be raised: how has the recognition of the right to food sovereignty developed in international law? To what extend does the UNDROP advance the recognition of this right in international law?
In order to answer those questions, several issues must be clarified: what is exactly the right to food sovereignty? What does it add to the right to food? How is it addressed in the UNDROP? Does the definition of the UNDROP match with the definition promoted by the peasant movement? What future is to be expected for the right to food sovereignty? Could it develop into a norm of customary international law?
In the second chapter, the development of the right to food sovereignty by the peasant movement will be addressed. With this in mind, it is necessary to consider the context which led to the emergence of this right, and more precisely to recall the content of the right to food. We will in particu -lar examine the relationship between this right to food and the right to food sovereignty as defined by the peasant movement. For this end, we will use treaties which define the right to food, as well as UN documents that refer to it. The study of the development of the right to food sovereignty will be supported by documents produced by the peasant movement which initiated the discus-sion around it, and by secondary sources.
The third chapter will discuss the definition of the right to food sovereignty in the UNDROP, put into perspective with the definition held by the peasant movement. This declaration is aimed at “peasants and other people working in rural areas”, which it defines in its Article 1. We will use the word “peasants” to refer to this group. The analysis will be principally textual, even if we will also look at the context and some secondary sources.
Finally, the fourth chapter will address the future of the right to food sovereignty in international law. The travaux préparatoires of the UNDROP will be looked at in more details, to see what they teach us about the general opinion of States with regard to the right to food sovereignty. The ana-lysis will also entail specific national legislations related to the right to food sovereignty, in order to determine if the right to food sovereignty could develop into a customary norm of international law and with which content.
Chapter 2: The development of the right to food sovereignty by the
peasant movement
The right to food sovereignty has been a demand of the peasant movement since the 1990s. How-ever, it is not the only right related to food which exists at the international level: since 1948, the Universal Declaration of Human Rights (UDHR) entails a right to food. Those two rights are both in-cluded in Article 15 of the UNDROP. This raises following questions: what is the right to food sover-eignty for the peasant movement? What does it add to the right to food?
Before studying the emergence of the right to food sovereignty and its current definition by the peasant movement (2.2), it is necessary to study the context in which it developed (2.1).
2.1 The pre-existing framework
To understand the reasons why the right to food sovereignty emerged, it is necessary to study the right to food (2.1.1), as well as a political concept often associated to it, food security (2.1.2).
2.1.1 The right to food
The right to food is a human right well established in treaties. It is a component of the right to an adequate standard of living, recognized in Article 11(1) of the International Covenant on Economic, Social, and Cultural Rights (ICESCR), which follows the wording of Article 25(1) of the UDHR:
“The States Parties to the present Covenant recognize the right of everyone to an ad-equate standard of living for himself and his family, including adad-equate food, clothing and housing, and to the continuous improvement of living conditions. […]”9
Article 11(2) goes on by recognizing the right to be free from hunger for every human being. Moreover, the right to food is to be found in other international10 and regional11 treaties, as well as
in national laws. Article 15(1) of the UNDROP also recognizes this right for peasants.
The right to food began to receive particular attention after the World Food Summit of 1996. One of the objectives decided at this summit was “to clarify the content of the right to adequate food and the fundamental right of everyone to be free from hunger”.12 In 1999 the Committee on
Economic, Social and Cultural Rights (CESCR) adopted General Comment No. 12 on the right to ad -equate food, which defines this right as follows:
“The right to adequate food is realized when every man, woman and child, alone or in community with others, have physical and economic access at all times to adequate food or means for its procurement.”13
9 Emphasis added.
10 See e.g. Articles 24 and 27 CRC.
11 See e.g. Article 12 of the Additional Protocol to the American Convention on Human Rights in the Area of Eco-nomic, Social and Cultural Rights.
12 WFS, 1996, Plan of Action, Rome, 1996, http://www.fao.org/3/w3613e/w3613e00.htm (accessed 3 June 2020), Objective 7.4.
This means that food must be available (both in quantity and quality), accessible (economically and physically), as well as adequate (i.e. the most appropriate under given circumstances). Moreover, food should be accessible for both present and future generations: this is the idea of sustainability. These four characteristics of the right to food (adequacy, sustainability, availability and accessibil-ity) are developed in paragraphs 7 to 13 of the General Comment No. 12. This commentary has no legally binding effect, but it does have a highly authoritative character.
The right to food is a classical human right: its subjects are individuals (even if it was originally en -visaged as a collective right)14 and its addressees the States, who have the obligation to take steps
to achieve progressively the full realization of this right.15 They are assisted in this task by a Special
Rapporteur on the Right to Food, appointed since 2000 with the mandate in particular to cooper-ate with Stcooper-ates and “to identify emerging issues relcooper-ated to the right to food worldwide”.16
General Comment No. 12 distinguishes three levels of obligations: to respect, to protect and to ful-fil (i.e. facilitate and provide).17 Regarding the obligation to respect, States must not take any
meas-ures that result in preventing existing access to food. In order to protect the right to food, States must ensure that corporations or individuals do not deprive individuals of their access to food. Fi-nally, States must facilitate the access to and use of resources and means which ensure individuals’ or groups’ livelihood (obligation to facilitate), and provide food themselves, when they cannot ac-cess it alone, for reasons beyond their control (obligation to provide). However, if the right to food has to be guaranteed by States, the manner of producing or reaching this food is not specified.18
This State-centric approach is criticized by some NGOs, which try to make it evolving, in particular by highlighting the responsibilities of transnational corporations.19 However, the food sovereignty
movement does not follow the path of redefining existing rights, such as the right to food, to frame its claims: it puts forward new ones. This is partly due to the proximity of the right to food to the concept of food security.
2.1.2 Food security
Alongside the right to food, the concept of food security has developed. It has been used since the 1970s by the Food and Agriculture Organization of the UN (FAO), but its definition has evolved.20
The most commonly accepted definition is the one chosen by the 1996 World Food Summit: “Food security exists when all people, at all times, have physical, social and economic access to sufficient, safe and nutritious food that meets their dietary needs and food preferences for an active and healthy life.”21
14 Claeys, Reclaiming control (n 4) 77. 15 Article 2 of the ICESCR.
16 E/CN.4/RES/2000/10, para 11.
17 CESCR, General Comment No. 12, para 15. 18 Windfuhr and Jonsén (n 6) 23.
19 Claeys, Reclaiming control (n 4) 79 f. 20 Windfuhr and Jonsén (n 6) 21 f. 21 WFS, 1996 (n 12) para 1.
Although the definition may seem close to that of the right to food, food security is not considered as a right, but as a goal to be achieved, notably by the FAO itself.22 Food security remains common
language in the discourse of the FAO: its conference, which is composed of all Member States, is assisted by a Committee on World Food Security, itself composed of States.
In documents produced by the FAO, the right to food is often linked to the idea of food security. This is the case of the FAO Right to Food Guidelines, that were developed following a demand of the 2002 World Food Summit.23 Adopted in 2004, their purpose is to help States in “their
imple-mentation of the progressive realization of the right to adequate food in the context of national food security”.24 The definition of food security and its four pillars are recalled: “availability,
stabil-ity of supply, access and utilization”.25 These guidelines are partly based on the concepts developed
by the CESCR in its General Comment No. 12.26 There are also not legally binding, but were
form-ally accepted by FAO Member States, contrary to general comments.
The concept of food security is also used outside the UN framework. This notion can notably be found within the World Trade Organization (WTO) in similar terms. Indeed, the WTO website states that “peoples are considered ‘food secure’ when they have access to sufficient, safe, nutritious food to maintain a healthy and active life”;27 this definition is close to that of the World Food
Sum-mit of 1996. Moreover, the two organisations, FAO and WTO, claim to work together.28
This is significant. While for a long time, trade and food security have been "two worlds apart", this changed with the creation of the WTO and the inclusion of agriculture in its competences.29
Al-though the definition of the term seems neutral, food security is in fact associated with the ideal promoted notably by the WTO: liberalism and capitalism, which imply trade liberalisation, includ-ing in the field of agriculture.30 The preamble of the Marrakesh Agreement establishing the WTO
states that parties to this agreement are:
“resolved […] to develop an integrated, more viable and durable multilateral trading system encompassing […] the results of past trade liberalization efforts […]”
Liberalization is about reducing tariffs and other barriers to trade and eliminating discriminatory treatment in international trade relations.31The focus is then on economic growth and on
produc-tion increase. This ideology can be found in Guideline 4 of the FAO Right to Food Guidelines:
22 OHCHR, Fact Sheet No. 34, The Right to Adequate Food, April 2010, No. 34, ISSN 1014-5567, 4.
23 WFS, 2002, Five years later, Rome, 2002, http://www.fao.org/3/Y7106E/Y7106E09.htm#TopOfPage (accessed 3 June 2020), para 10.
24 FAO Right to Food Guidelines, para 6 of the Preface. 25 FAO Right to Food Guidelines, para 15 of the Introduction. 26 Windfuhr and Jonsén (n 6) 21.
27 https://www.wto.org/english/tratop_e/agric_e/food_security_e.htm (accessed 15 June 20020). 28 See e.g. https://www.wto.org/english/news_e/spra_e/spra95_e.htm or http://www.fao.org/3/
x3452e03.htm#TopOfPage (accessed 15 July 2020).
29 Arild Aurvag Farsund, Carsten Daugbjerg and Oluf Langhelle, Food security and trade: reconciling discourses in the Food and Agriculture Organization and the World Trade Organization, 2015, Food Sec. 7:383–391, 384.
30 Lucy Jarosz, Comparing food security and food sovereignty discourses, 2014, Dialogues in Human Geography, Vol. 4(2) 168–181, 170.
“4.1 States should […] improve the functioning of their markets, in particular their agri-cultural and food markets, in order to promote both economic growth and sustainable development […].
4.2 States should put legislation, policies, procedures and regulatory and other institu-tions in place to ensure non-discriminatory access to markets and to prevent uncom-petitive practices in markets. […]”
According to some authors, this liberal model favours industrial agriculture and large-scale mono-culture.32 The political ideas associated with the concept of food security explain the distrust of the
peasant movement towards it. Initially, however, the concept was used alongside food sover-eignty.33 The two notions of food security and food sovereignty are today considered carrying
rad-ically different models. The right to food has not such an ideological dimension, but it is often asso-ciated with the non legal concept of food security, which has itself strong ties with liberalism.
2.2 The emergence of a new model
The right to food sovereignty (2.2.2) emerged from the food sovereignty paradigm (2.2.1), a broad concept that encompasses several rights.
2.2.1 The food sovereignty paradigm
The origin of “food sovereignty” is a matter of debate.34 It seems that the concept was developed
in the 1980s by Central American governments. The expression itself was not always present, but a similar language was then adopted. The Mexican government was the first to declare its intention to achieve food sovereignty, understood as national control over food, from production to con-sumption. The idea was then taken up by Central American peasant movements, which spoke in particular about “food autonomy”.35 Food sovereignty was used in a particular context, that of the
“omnipresence of external authority in the domestic food and agriculture sector” in response to increasing food imports.36 Therefore, food sovereignty emerged as a political concept, the idea
above being to regain "national" sovereignty.
The peasant movement rapidly took up this concept: the birth of La Via Campesina in 1993 coin-cided with the establishment of the WTO in 1995 following the negotiations of the Uruguay Round from 1986 to 1994. This organisation then became the target of La Via Campesina’s demands.37 For
the NGO, the agreements concluded within this organisation “[threaten] the capacity of states to organise and manage agricultural production and food supplies for their populations” and “[allow] transnational corporations to increasingly influence and control food production, distribution and
32 Jarosz (n 30) 169.
33 Sharma (n 8) 5; Edelman, Food sovereignty (n 1) 963. 34 Claeys, Reclaiming control (n 4) 12.
35 Edelman, Food sovereignty (n 1) 967 ff. 36 Sharma (n 8) 6.
37 Kim Burnett and Sophia Murphy, What place for international trade in food sovereignty?, 2014, Journal of Peasant Studies, 41:6, 1065-1084, 1067; Claeys, Reclaiming control (n 4) 15 f.
trade”.38 The movement calls for the removal of agriculture from the competences of the WTO.39
On the website of La Via Campesina, the section “What are we fighting against” contains three items: “transnational companies and agribusiness”, “capitalism and free trade” and “patriarchy”.40
The peasant movement proposes another model: food sovereignty.
The food sovereignty paradigm has evolved over time. In 2007, a Forum for Food Sovereignty was organised in Sélingué in Mali, bringing together, according to the Nyéléni Declaration adopted on this occasion “more than 500 representatives from more than 80 countries, of organizations of peasants/family farmers, artisanal fisher-folk, indigenous peoples, landless peoples, rural workers, migrants, pastoralists, forest communities, women, youth, consumers, environmental and urban movements”. On this occasion “Six Pillars of Food Sovereignty”41 were defined. The peasant
move-ment still refers to them today, although their interpretation may vary depending on the local con-text, with some pillars being sometimes more highlighted than others.42
The first, entitled “focuses on food for people”, contains the idea that people should be “at the centre of food, agriculture, livestock and fisheries policies”, and “rejects the proposition that food is just another commodity or component for international agri-business”. The second pillar focuses on valuing food providers and their rights. “Localise[d] food systems” is the third pillar. It includes consumers, that must be with food providers “at the centre of decision-making on food issues”. It also rejects the “unsustainable and inequitable international trade”. The peasant movement does not completely oppose international trade.43 Even if priority is given to local production and
con-sumption, the idea is not that States should be totally autonomous in food matters. The Nyéléni Declaration indicates it clearly:
“Food sovereignty prioritises local and national economies and markets […]. Food sov-ereignty promotes transparent trade that guarantees just income to all peoples and the rights of consumers to control their food and nutrition.”
The fourth pillar is called “[put] control locally”, the idea is to “[place] control over territory, land, grazing, water, seeds, livestock and fish populations” in the hands of local food providers. It entails among others the reject of intellectual property rights regimes. The fifth pillar, “[build] knowledge and skills” recalls the importance of “skills and local knowledge of food providers and their local or-ganizations”. Finally, the sixth pillar, “[work] with nature”, rejects industrial production methods, “which damage the environment and contribute to global warming”. The peasant movement chose to translate these different demands composing the food sovereignty paradigm into legal terms. This movement is often described as radical. Some authors then point out the risks associated with this legal translation: for example, the emphasize put on States’ obligations towards their citizens
38 Fergal Anderson, Food Sovereignty Now!, A guide to food sovereignty, European Coordination Via Campesina, 2018, https://viacampesina.org/en/wp-content/uploads/sites/2/2018/02/Food-Sovereignty-A-guide-Low-Res-Vresion.pdf (accessed 13 June 2020), 6.
39 Windfuhr and Jonsén (n 6) 15.
40 https://viacampesina.org/en/what-are-we-fighting-against/ (accessed 10 June 2020).
41 Nyéléni Forum, Nyéléni 2007, Forum for Food Sovereignty, Sélingué, Mali, February 23–27, 2007,
https://nyeleni.org/DOWNLOADS/Nyelni_EN.pdf (accessed 18 June 2020), 39. 42 Claeys, Reclaiming control (n 4) 14.
in international human rights law makes it difficult to take transnational issues into account and to address the responsibilities of multinationals.44 However, the formulation of new rights makes
pos-sible “to develop an alternative conception of rights that emphasizes the collective dimension of claims”.45 Several rights finally emerge from the food sovereignty paradigm, including the right to
food sovereignty.
2.2.2 The right to food sovereignty
In 1996, an NGO forum was organised in parallel with the World Food Summit: it was the first op -portunity for La Via Campesina to demand the right to food sovereignty at the international level.46
However, this right was not yet accepted by the majority of the NGO present;47 thus it does not
fig-ure at the centre of the final declaration of this forum, “Profit for few or food for all”.48
Neverthe-less, the sixth proposal states:
“International law must guarantee the right to food, ensuring that food sovereignty takes precedence over macro-economic policies and trade liberalization. […]
Each nation must have the right to food sovereignty to achieve the level of food
suffi-ciency and nutritional quality it considers appropriate without suffering retaliation of any kind. Market forces at national and international levels will not, by themselves, re-solve the problem of food insecurity. In many cases, they may undermine or exacerbate food insecurity. […] All countries and peoples have the right to develop their own
agri-culture.”49
The term “nation” has several uses in international law: it can be a synonym for the State, for a people or for a national minority.50 The meaning used here is not certain, especially since the rest
of the text recognizes for “all countries and peoples” a right to develop their own agriculture (which is close to the right to food sovereignty). However, the rejection of “trade liberalization” is clear: “market forces” are targeted as part of the problem of food insecurity and the solution would be for each “nation” to achieve “the level of food sufficiency […] it considers appropriate”. We find here the ideas put forward at the origins of the food sovereignty paradigm: the necessity to regain national autonomy in the food supply. This first definition does not clearly establish the right to food sovereignty as a human right; it could, on the contrary, be a right of States vis-à-vis others.51
44 Noha Shawki, New Rights Advocacy and the Human Rights of Peasants: La Via Campesina and the Evolution of New Human Rights Norms, 2014, Journal of Human Rights Practice Vol. 6, Number 2, pp. 306–326, 312 f.; Claeys, The Creation of New Rights (n 6) 847; Claeys, Reclaiming control (n 4) 84.
45 Claeys, The Creation of New Rights (n 6) 847. 46 Claeys, Reclaiming control (n 4) 13.
47 Ibid, 26 f.
48 NGO Forum, Profit for few or food for all, Statement by the NGO forum to the World Food Summit, Rome, 1996,
http://www.fao.org/wfs/begin/paral/cngo-E.htm (accessed 3 June 2020). 49 Ibid. Emphasis added.
50 Armin von Bogdandy and Stefan Häußler, Nations (October 2008) in Rüdiger Wolfrum (ed), Max Planck Encyclope-dia of Public International Law (online edn).
Proposal 6 goes on calling for the development of “more effective instruments to implement the right to food”. This includes a Global Convention on Food Security: the majority of NGO present at the 1996 forum does not envisage the institutionalization of the right to food sovereignty.52 Five
years later, the idea nevertheless imposed itself: at the NGO forum of 2002, a Convention on Food Sovereignty that would replace the WTO rules related to agriculture is requested.53 The definition
of the right to food sovereignty continues to evolve. Today, the definition of the Nyéléni Declara-tion is the most widely referred to by the peasant movement:
“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.”
According to this definition, this right has two components: the right to define the food and agri-culture system and the right to food, with a more precise definition. Thus, the right to food is part of the right to food sovereignty. The latter is however larger: it does not only ensure access to food for all, but allows peoples to define how that food will be produced and how they will have access to it.
Although the right to food already exists, the peasant movement innovates by making it a collect-ive right, recognized for peoples. Other definitions clarify this collectcollect-ive dimension: “right to pro-duce and consume healthy and culturally appropriate food”.54 Considering the right to food as a
collective right makes it possible to address the structural obstacles to its realization, notably by in-cluding it in debates on agriculture.55 More broadly, subjects of the right to food sovereignty are
here clearly peoples. It can however be noted that further on in the declaration, the participants declare that they are fighting for a world where
“… all peoples, nations and states are able to determine their own food producing sys-tems and policies that provide every one of us with good quality, adequate, affordable, healthy, and culturally appropriate food”56
This passage has similarities with the definition from the same declaration: the idea of an appropri-ate food and the possibility of determining the production system of this food. Nevertheless, it is not a right that is recognized here. Moreover, it is not only about States, but also about "nations" and "peoples". The sentence could thus only emphasize that certain peoples exercise their food sovereignty through the State, which is then an instrument in the hands of a particular people.57
Hence, it seems that there has been an evolution of the right to food sovereignty from a State right (as long as the first definition could be understood as a State right) to a (collective) human right.58
52 Ibid, 26 f.
53 Ibid; Windfuhr and Jonsén (n 6) 15 f.
54 La Via Campesina, UNDROP, Book of Illustrations, March 2020, https://viacampesina.org/wp-content/uploads/ 2020/04/UNDROP-Book-of-Illustrations-l-EN-l-Web.pdf (accessed 9 June 2020), 5.
55 Claeys, Reclaiming control (n 4) 77. 56 Emphasis added.
57 See Christophe Golay and Melik Özden, The right of peoples to self-determination and to permanent sovereignty over their natural resources seen from a human rights perspective, 2010, Geneva: Centre Europe Tiers-Monde (CE-TIM), 13; Sharma (n 8) 8.
The Nyéléni Declaration recognizes it explicitly: “[…] food sovereignty is considered as a basic hu-man right, recognized and implemented by communities, peoples, states and international bod-ies.”
This formulation seems to make not only States, but also communities, peoples and international bodies responsible for the implementation of this right. Classically, however, States are the sole bearers of human rights duties under international human rights law; and rights holders are not at the same time duty bearers. Some argue that the addressees would be unspecified, and that this right could only be realized “through the concerted efforts of all actors on the social scene”.59 This
can be seen as the will to go beyond the classical human right framework: the peasant movement put “a strong emphasis on responsibility [which implies] the involvement of each citizen to realize [the] rights”.60 If States are not the sole duty bearers, it also makes it possible to target all perpet
-rators of human rights abuses, including transnational companies.
The idea of a Convention on Food Sovereignty is today no longer put forward.61 In recent years, La
Via Campesina has focused its international struggle on the recognition of rights for peasants, lead-ing to the adoption of the UNDROP by the UN General Assembly on 17 December 2018. These de-mands are part of those related to food sovereignty. Indeed, rights for peasants and also for con-sumers are part of this paradigm (for example the right of food producers to use and manage lands, the rights of consumers to control their food and nutrition are in the Nyéléni Declaration). Moreover, the right to food sovereignty is also in the UNDROP.
2.3 Sub-conclusion
The right to food sovereignty was developed by the peasant movement at a time when interna-tional attention was focused on the right to food. The right to food sovereignty, as defined in the Nyéléni Declaration, includes the right to food. However, it makes it a right of peoples, giving it a collective dimension.
This right to food is also often associated with the idea of food security and liberalism, which the peasant movement rejects. Instead, it proposes the food sovereignty paradigm, which it translates legally into new rights: this enables to introduce a collective dimension. Alongside peasants' and consumers’ rights, the right to food sovereignty is developed. First understood as a right of States, it is today defined by the peasant movement as a human right recognized for peoples. The right to food sovereignty can finally be found in the UNDROP.
59 Maggio, Greg, and Owen J. Lynch. 1997, Human Rights, Environment, and Economic Development: Existing and Emerging Standards in International Law and Global Society, 53, cited in Claeys, Reclaiming control (n 4) 23 f. 60 Claeys, Reclaiming control (n 4) 51.
Chapter 3: The right to food sovereignty in the Declaration on the rights
of peasants and other people working in rural areas
The UNDROP refers to the right to food sovereignty in paragraph 22 of its Preamble and in its Art -icle 15, making it the first text adopted by the UN General Assembly to do so. Art-icle 15(4) reads as follows:
“[Peasants] have the right to determine their own food and agriculture systems, recog-nized by many States and regions as the right to food sovereignty. This includes the right to participate in decision-making processes on food and agriculture policy and the right to healthy and adequate food produced through ecologically sound and sustain-able methods that respect their cultures.”
As we have seen in the second chapter, the peasant movement includes in the food sovereignty paradigm other rights, specific to peasants. Some are recognized in the UNDROP such as the right to land (Article 17), the right to the conservation and protection of the environment and the pro-ductive capacity of the land (Article 18), the right to seeds (Article 19) or the right to water (Article 21). We will not elaborate on these rights, but will focus on the following question: how is the right to food sovereignty addressed in the UNDROP? Is its definition the one promoted by the peasant movement in the Nyéléni Declaration?
The comparison of Article 15(4) with the definition of the peasant movement leads first and fore-most to the question of the subjects of the right to food sovereignty in the UNDROP (3.1). Regard-ing the object, the first readRegard-ing reveals the presence of three rights composRegard-ing the right to food sovereignty. Two of them appear in the Nyéléni Declaration, but the second, the right to particip-ate, does not. Most of all, the third component questions the articulation of this right with the right to adequate food (3.2). About the addressees, the declaration goes back to the traditional ap-proach where States are the sole duty bearers (see in particular Article 2 UNDROP), therefore we will not address the issue.
3.1 The subjects of the right to food sovereignty
The right to food sovereignty of Article 15(4) of the UNDROP is a human right, not a State right, as it is recognized for peasants. The first understandings of this right by the peasant movement are thus not taken up. However, questions regarding the subjects of this right remain. Indeed, inter-pretation is required to determine whether the UNDROP recognizes the right to food sovereignty as a collective right (3.1.1) or as an individual right (3.1.2), and what this implies.
“Collective rights” will be used as an umbrella concept, to characterize rights that are intended to protect a collectivity as such.62 Within these collective rights, we will focus the analysis on two
types of rights: the rights of peoples and the rights of groups, here the group of peasants. “Indi-vidual rights” may also have a collective dimension. They can for example be exercised collectively,
62 Daniel Moeckli and others (eds), International Human Rights Law, Oxford University Press: 3rd edition, December
such as the right of freedom of assembly.63 They can also be held by individuals, because they
be-long to a specific group.64 This element of collectivity does not make them collective rights, as they
can only be held and claimed by individuals.
3.1.1 The right to food sovereignty as a collective right
In the UNDROP, the right to food sovereignty is recognized for peasants, while the peasant move-ment was demanding a right of peoples in the Nyéléni Declaration. Of course, the UNDROP is only intended to recognize rights for a specific group. However, a broader definition had been envisaged during the travaux préparatoires:
“[Peasants] have the right to food sovereignty. Food sovereignty is the right of peoples to healthy and culturally appropriate food produced through socially just and ecologic-ally sensitive methods. It entails peoples’ right to participate in decision-making, and to define their own food and agriculture systems.”65
In this draft, the right to food sovereignty was at first explicitly recognized for peasants. Then it was defined as a peoples' right, which implied that it was a right recognized in international law not only for peasants. The final declaration is more restrictive, it does not adopt this general recogni-tion. Yet the recognition of rights for peoples would not have been new. Indeed, both the ICESCR and the International Covenant on Civil and Political Rights (ICCPR) states in their Article 1:
“1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and re -sources […]”
The first paragraph emphasizes political independence, while the second focuses on economic sov-ereignty.66 This echoes the right to food sovereignty. The right to development is also strongly
linked to the right to self-determination, particularly in its economic dimension.67 A declaration
ad-opted by the UN General Assembly68 is devoted to this right. Moreover, this declaration is cited in
the third paragraph of the Preamble of the UNDROP, while paragraph 22 contains the definition of this right and Article 3(2) explicitly recognizes it for peasants. Article 1(1) of the Declaration on the Right to Development states:
“The right to development is an inalienable human right by virtue of which every hu-man person and all peoples are entitled to participate in, contribute to, and enjoy eco-nomic, social, cultural and political development, in which all human rights and funda-mental freedoms can be fully realized.”
63 Ibid, 345. 64 Ibid, 361.
65 HRC, 2015, Article 5(4); A/HRC/WG.15/3/2, Article 5(4); A/HRC/WG.15/4/2, Article 15(2), with “determine one’s” instead of “define” in the end. Emphasis added.
66 Golay and Özden (n 57) 15 ff. 67 Ibid, 7.
This right is recognized for individuals (the UNDROP recalls this with regard to peasants), but also for peoples. The right to self-determination and the right to development “can be considered his-toric predecessors of the right to food sovereignty”69, understood as a peoples’ right. Indeed, the
right to development, the right to sovereignty over natural resources70 and the right to food
sover-eignty were gathered together in the same article in the first drafts of the UNDROP.71
The right to self-determination has an internal and an external dimension;72 the right to food
sov-ereignty can be analysed the same way. The internal dimension of those two rights would be closed:73 the idea is for peoples to have decision-making power within the State,74 specifically
con-cerning agriculture and food policies for the right we are interested in. The exercise of external self-determination implies a change in international relationships, and is often, but not exclusively, synonym of independence.75 Regarding the right to food sovereignty, this external dimension could
rather entails the criticism of excessive liberalisation, and the idea that other States, but also mul-tinationals, should not prevent a people from freely determining its agriculture and food system;76
it would meet the demands of the peasant movement, as developed in the second chapter.
Recognizing peoples as subjects of the right to food sovereignty would therefore have made sense, and would have been in line with the right to self-determination and the right to development. Nevertheless, without being a right of peoples, the right to food sovereignty recognized in the UN-DROP could still be a collective right, in that it would be recognized for a group, the peasants. Here again, the recognition of a group right would not be new, although this concept remains contested in international law.77 The Declaration on the Rights of Indigenous Peoples (UNDRIP) recognizes
rights for “indigenous individuals” (e.g. Article 6), but also for “indigenous peoples” (e.g. Article 3) or both (e.g. Article 2). If the right to food sovereignty is a group right, it implies that peasants rep-resent a group, which is capable of having rights.
The definition of this group is already problematic, as its members are themselves not clearly defined: there are many definitions of the term peasants.78 Article 1 of the UNDROP includes one;
this enables the conclusion that a group of peasants exists, at least for the purposes of this declar-ation, even though its contours might remain unclear. Moreover, this group must be sufficiently structured and organised to enjoy rights.79 Indigenous peoples represent a group, but also peoples,
69 Claeys, Reclaiming control (n 4) 21.
70 This right has disappeared from the UNDROP, the idea of sovereignty is no longer present in Article 5(1), which re -cognizes for peasants “the right to have access to and to use in a sustainable manner the natural resources present in their communities that are required to enjoy adequate living conditions”.
71 HRC, 2015, Article 5 – Rights to sovereignty over natural resources, development and food sovereignty; A/HRC/ WG.15/3/2, idem.
72 Golay and Özden (n 57) 19. 73 Claeys, Reclaiming control (n 4) 22. 74 Moeckli and others (n 62) 352 ff. 75 Ibid, 351 f.
76 Golay, Research brief (n 7) 2.
77 Claeys, Reclaiming control (n 4) 147, note 27; Shawki (n 44) 312 f.
78 Marc Edelman, What is a peasant? What are peasantries? A briefing paper on issues of definition, prepared for the first session of the Intergovernmental Working Group on a United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas, Geneva, 15-19 July 2013, https://www.ohchr.org/Documents/HRBodies/ HRCouncil/WGPleasants/Edelman.pdf (accessed 5 June 2020).
with a certain organisation, as demonstrated by Articles 4 and 5 of the UNDRIP, which recognize them respectively a “right to autonomy or self-government in matters relating to their internal and local affairs” and a “right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions”. It is not certain that all the peasants likely to fall within the definition of Article 1 of the UNDROP are structured as communities capable of determining a food and agricul -ture system.
Finally, even if one accepts the existence of group rights and the ability of the peasant group to en -joy rights, it is not clear whether it is desirable to recognize the right to food sovereignty for this particular group. Indeed, it seems hardly justifiable to grant the right to determine the food and agriculture system of a State only to peasants, without considering consumers. The peasant move-ment does not claim the right to food sovereignty as a right recognized exclusively for peasants as a group, and they do include consumers in their claims since the Nyéléni Declaration.
3.1.2 The right to food sovereignty as an individual right
It seems more likely that the right to food sovereignty recognized in Article 15(4) of the UNDROP is an individual right, than a collective right. Indeed, it is clearly not a peoples’ right, even if this used to be the case in earlier drafts. It seems also difficult to interpret it as a group right. First of all, the peasant movement did not wish to see this right recognized for a group solely composed of peas -ants. The different definitions studied in the second chapter never recognize this right only for peasants. Moreover, the first proposal of declaration made by La Via Campesina did not include the right to food sovereignty, as the UNDROP was seen as a way to recognize the rights of peasants only, whereas this right is understood as a right of peoples.80
Furthermore, several States are reluctant to the recognition of new collective rights.81 Such rights
imply that States lose some of their sovereignty, in order to grant it to a particular people or group. Above all, this implies defining that group. Defining a people is already not easy,82 the definition of
a group is even less easy, especially when it comes to peasants, as we have seen. Therefore, the right to food sovereignty as recognized in the UNDROP is most likely an individual right, which is not recognized for everyone, but only for individuals belonging to the group of peasants.
It is however difficult to conceive the right to food sovereignty purely as an individual right for one of its components. This does not constitute a problem for the right to food, which is found at the end of Article 15(4) and to which we shall return in the second part. The right to participate in de-cision-making processes on food and agriculture policy can be seen as an individual right that can be exercised collectively, as can Article 10(1) of the UNDROP, to which it echoes:
“[Peasants] have the right to active and free participation, directly and/or through their representative organizations, in the preparation and implementation of policies, pro-grammes and projects that may affect their lives, land and livelihoods.”
80 Christophe Golay, Trust and complementarity, ingredients for success, in Priscilla Claeys and Marc Edelman, The United Nations Declaration on the rights of peasants and other people working in rural areas, 2019, The Journal of Peasant Studies, DOI: 10.1080/03066150.2019.1672665, 25.
81 Golay, Legal reflections (n 7) 16. 82 Moeckli and others (n 62) 347 ff.
Here again, one can regret the absence of recognition of this right for consumers. This absence is even more obvious with regard to the right to determine their own food and agriculture system. While it is difficult to imagine an individual dimension to the right to self-determination,83 the same
is true for the right to food sovereignty: what can an individual right to determine the food and ag-riculture system of a collectivity mean, knowing that each individual would be granted the same right? The individual participates in the decision-making process, but it is up to the community to
determine. Article 15(5) of the UNDROP adds a dose of incomprehension to this component of the
right to food sovereignty:
“States shall formulate, in partnership with [peasants,] sustainable and equitable food systems that promote and protect the rights contained in the present Declaration. […]” Here, it is no longer the sole peasants who determine the food system, as set out in Article 15(4) of the UNDROP, but the States that develop it, in partnership with the peasants. Depending on how “in partnership” is interpreted, peasants will have more or less weight in the decision. The recogni-tion of the right to food sovereignty as an individual right, and not a collective one, in the UNDROP thus raises questions about the practical application of this right, at least for some of its compon-ents.
3.2 The articulation of the right to food sovereignty and the right to adequate
food
In the UNDROP, the right to food sovereignty is not the subject of a specific article. Article 15 also deals with the right to adequate food, in particular in paragraphs 1 and 2:
“1. [Peasants] have the right to adequate food and the fundamental right to be free from hunger. This includes the right to produce food and the right to adequate nutri-tion, which guarantee the possibility of enjoying the highest degree of physical, emo-tional and intellectual development.
2. States shall ensure that [peasants] enjoy physical and economic access at all times to sufficient and adequate food that is produced and consumed sustainably and equitably, respecting their cultures, preserving access to food for future generations, and that en-sures a physically and mentally fulfilling and dignified life for them, individually and/or collectively, responding to their needs.”
Article 15(1) of the UNDROP reiterates Article 11 ICESCR. However, it does not stop there, applying these rights to the particular situation of the group in question, it recognizes them “the right to produce food”. This ties in with the idea of availability, one of the characteristics of the right to food, as identified and defined by the CESCR: availability refers, among others, “to the possibilities […] for feeding oneself directly from productive land or other natural resources”84. However, it had
not been recognized as a right in its General Comment No. 12.
83 Claeys, Reclaiming control (n 4) 23. 84 CESCR, General Comment No. 12, para 12.
Article 15(4) of the UNDROP concludes with the recognition of the “right to healthy and adequate food produced through ecologically sound and sustainable methods that respect their culture” for peasants. There are similarities with the Nyéléni Declaration, which claims “the right of peoples to healthy and culturally appropriate food produced through ecologically sound and sustainable methods”. As in the definition of the peasant movement, the right to adequate food is included into the right to food sovereignty, even if it is defined more precisely. This raises following ques-tions: where do these precisions come from (3.2.1)? Why is the right to food included again in Art-icle 15(4) of the UNDROP, although it is already present in ArtArt-icle 15(1) of the same declaration (3.2.2)?
3.2.1 The precise definition of the right to food as a component of the right to food sovereignty
The various clarifications made to the right to food in Article 15(4) of the UNDROP are not com-pletely new. Some of them can be found in the General Comment No. 12 of the CESCR, related to the right to adequate food and in the FAO Right to Food Guidelines. The CESCR, although not using the term healthy in its comment, states that food must be available “in a quantity and quality suffi-cient to satisfy the dietary needs of individuals, free from adverse substances”85. The concern of
healthy food is also visible in the FAO Right to Food Guidelines: “States are encouraged to involve all relevant stakeholders [in] programmes to increase the production and consumption of healthy and nutritious foods […]”.86 The adjective is also used in the Nyéléni Declaration.
General Comment No. 12 also encompasses the idea of sustainability, which is another character-istic of the right to food. It implies “food being accessible for both present and future generations [and] incorporates the notion of long-term availability and accessibility”87. Furthermore, the
Com-mittee states that “care should be taken to ensure the most sustainable management and use of natural and other resources for food at the national, regional, local and household levels”88.
Guideline 8E of the FAO Right to Food Guidelines also concerns sustainability. Finally, Article 15(2) refers to “food that is produced and consumed sustainably”89. The expression “sound and
sustain-able methods” is also found in the definition of the peasant movement.
However, the Committee does not refer to ecological methods in its comment. Nevertheless, in a recent statement, it encourages States to move to “agroecological farming”.90 Agroecology is also a
solution promoted by the Special Rapporteurs.91 In addition, above mentioned Guideline 8E
en-courages States “to protect ecological sustainability and the carrying capacity of ecosystems”. Agroecology can be defined in various ways, which the FAO lists on its website92, indicating
com-mons features: the application of ecological principles to agriculture. The food sovereignty movement also promotes this methods of production. Finally, it also echoes other articles of the UN
-85 CESCR, General Comment No. 12, para 8.
86 FAO Right to Food Guidelines, Guideline 10, para 10.3. 87 CESCR, General Comment No. 12, para 7.
88 Ibid, para 25. 89 Emphasis added. 90 E/C.12/2018/1, para 9.
91 See e.g. A/HRC/16/49; A/70/287, paras 73 ff.
DROP: Article 18(1), which recognizes for peasants “the right to the conservation and protection of the environment” and Article 20 (1), which states that “States shall take appropriate measures […] to prevent the depletion and ensure the conservation and sustainable use of biodiversity […]”. General Comment No. 12 finally mentions the cultural dimension of food. According to the CESCR, the core content of the right to adequate food implies “the availability of food […] acceptable within a given culture”93. It states further:
“Cultural or consumer acceptability implies the need also to take into account, as far as possible, perceived non-nutrient-based values attached to food and food consumption and informed consumer concerns regarding the nature of accessible food supplies”.94
The Committee also says that “products included in international food trade or aid programmes must be […] culturally acceptable to the recipient population”.95 This interpretation of the right to
adequate food is also found in the FAO Right to Food Guidelines, which encourages States to recog-nize that “food is a vital part of an individual’s culture”.96 However, that is not exactly what is
recog-nized in the UNDROP.
Indeed, the expression “that respect their cultures” (Article 15(4) of the UNDROP) does not refer to the word food, but to the word methods. Earlier drafts of the text referred to the “right to healthy and culturally appropriate food”97. This is surprising regarding the fact that the same
Art-icle 15, in its paragraph 2, obliges States to “ensure that [peasants] enjoy physical and economic access at all times to sufficient and adequate food […], respecting their cultures”. The cultural no-tion was more clearly linked to food in an earlier draft,98 but an amendment introduced by the
European Union, with Switzerland concurring, led to a change in the text.99
Nevertheless, this change should not have a major influence. It seems possible to conclude from a reading of the UNDROP that not only the production of the food must be culturally acceptable, but also the food outcome. Indeed, as said before, Article 15(2) includes the cultural aspect in the definition of the right to adequate food. Furthermore, paragraph 24 of the Preamble entails in “the concept of food sovereignty” the “right to healthy and culturally appropriate food […]”100,
formula-tion which is, moreover, that of the Nyéléni Declaraformula-tion.
Article 15(4) can be related to other articles of the UNDROP that contain the idea of a peasant cul-ture. The most emblematic is Article 26,101 its paragraph 1 states:
“[Peasants] have the right to enjoy their own culture and to pursue freely their cultural development […]. They also have the right to maintain, express, control, protect and
93 CESCR, General Comment No. 12, para 8. 94 Ibid, para 11.
95 Ibid, para 39.
96 FAO Right to Food Guidelines, Guideline 10, para 10.9.
97 A/HRC/19/75; HRC, 2015; A/HRC/WG.15/3/2; A/HRC/WG.15/4/2. Emphasis added. 98 A/HRC/WG.15/4/2, Article 15(4): “culturally acceptable food”.
99 A/HRC/36/58, para 173. 100 Emphasis added.
101 Other articles also refer to the culture of peasants, or their traditional knowledge, see e.g. Article 20(2) and Article 25(2).
develop their traditional and local knowledge, such as ways of life, methods of produc-tion or technology, or customs and tradiproduc-tion. […]”
Their traditional knowledge include their “methods of production”. Those methods are further specified in Article 15, as the expression at the end of paragraph 4 (“that respect their cultures”) refers to the word methods. Thus, their culture includes “ecologically sound and sustainable meth-ods”. The wording of Article 15(4) relating to culture thus clarifies the notion of peasant culture. It is not the purpose here to discuss this notion further, but it should be noted that the desire to pro-tect the culture(s) of a particular group is not new (see for example Article 27 of the ICCPR).
3.2.2 The double recognition of the right to food in the Declaration on the rights of peasants and other people working in rural areas
The fact that the right to food is recognized twice in the UNDROP raises questions. This could be explained by the precise definition introduced in Article 15(4), where the right to food is envisaged as a component of the right to food sovereignty. However, most of the precisions made on the right to food can be found in the interpretations of the CESCR and in the FAO Right to Food Guidelines. It seems then reasonable to argue that these clarifications would already be applicable to the first paragraphs of Article 15 of the UNDROP. It is true that General Comment No. 12 only in-terprets Article 11 of the ICESCR, but its authority concerning the interpretation of the right to food may be considered to exceed that treaty. The UNDROP is moreover, just as the ICESCR, part of the UN framework. The FAO Right to Food Guidelines concern the right to food in a broad way. They indicate that they take into consideration all “relevant international instruments, in particular those instruments in which the progressive realization of [the right to food] is enshrined”,102 and
thus not only the ICESCR; the Convention of the Rights of the Child is for example cited in the intro-duction.
The will to clarify the definition of the right to food therefore does not explain its iclusion in Article 15(4) of the UNDROP, whereas it was already present in Article 15(1). This repetition is then per-haps a desire to stick to the proposal of the peasant movement, which includes a definition of the right to food close to the one recognized here in its definition of the right to food sovereignty. There is however a major difference.
The Nyéléni Declaration calls for a right of peoples, making the right to food a collective right, as was first envisaged as the right to food was theorized.103 Understood in this way, the repetition
which exists in Article 15 of the UNDROP is no longer one: just as the right to development, the right to adequate food would be both a right of individuals (here peasants) and a right of peoples. The idea of collectivity is nevertheless present in Article 15(2), in relation to a dignified and ful-filling life (as it is present in the definition of the CESCR):
102 FAO Right to Food Guidelines, para 10 of the Introduction. 103 Claeys, Reclaiming control (n 4) 77.
“States shall ensure that [peasants] enjoy […] access at all times to sufficient and ad-equate food […] that ensures a physically and mentally fulfilling and dignified life for them, individually and/or collectively, responding to their needs.”104
In any event, it is preferable that the UNDROP contains these precisions in Article 15(4): although previously recognized by the CESCR and in the FAO Right to Food Guidelines, they gain thereby more legal value. Indeed, if the FAO Right to Food Guidelines were formally accepted by States, this is not the case of General Comment No. 12, whereas the UNDROP was adopted by the UN General Assembly. In any event, such a repetition also makes it possible to ensure the coherence between different international legal instruments.
3.3 Sub-conclusion
The right to food sovereignty recognized in the UNDROP is not the right to food sovereignty as defined by the peasant movement in the Nyéléni Declaration. There are similarities, such as the in-clusion of the right to adequate food and the clarifications made to it overall. It even adds a right to participate in decision-making processes on food and agriculture policies to the definition. However, there is one major difference: it is not a collective right, but an individual right, some of the components of which can be exercised collectively. This choice to recognize an individual right is explained in particular by the practical difficulties to apply collective rights, the first being the very definition of the collectivity that bears the right. However, the chosen definition also raises questions about the practical application of the right to food sovereignty here, and in particular its first component, the right to determine the food and agriculture systems. The recognition of a
peoples' right would have finally implied the involvement of consumers in the decision-making
pro-cess.
Chapter 4: The future of the right to food sovereignty
The UNDROP is legally non-binding, as several States stressed during the drafting process or before the adoption of the text.105 However, this does not mean that its content cannot become binding
law. Such a declaration could become customary international law, if general practice and sufficient
opinio juris among States are demonstrated.106 In light of this, the following question can be raised:
what future is to be expected for the right to food sovereignty?
The study of the travaux préparatoires of the UNDROP gives an initial idea of the views of States concerning the right to food sovereignty and reveals a lack of consensus (4.1). The drafting process began in 2010, when the Human Rights Council (HRC) mandated the Advisory Committee to study the question of the advancement of the rights of peasants. A preliminary study was released in 2011,107 followed by the final study in February 2012.108 In September 2012, the HRC decided to
es-tablish an intergovernmental working group (IGWG) on the rights of peasants.109 After five
ses-sions held respectively in July 2013, February 2015, May 2016, May 2017 and April 2018, the UN-DROP was adopted in 2018 by the HRC and the UN General Assembly. A closer look on the States that have adopted food sovereignty in their national legislations allows an assessment of whether a development towards a norm of customary international law is possible, and what its content would be (4.2).
4.1 The lack of consensus among States on the right to food sovereignty
The contextual study as well as the study of the travaux préparatoires of the UNDROP demon-strate the reluctance of certain States vis-à-vis the right to food sovereignty. From the first session of the IGWG, some delegations asked whether “alternatives to food sovereignty, such as the right to adequate food or food security”, could be used.110 As shown in the second chapter, these are in
fact not alternatives: the three terms have different meanings. Some States later asked for “further clarification of […] the concept of sovereignty”, arguing that “food sovereignty was a concept under discussion in international forums and not fully defined”.111 This reluctance is expressed
through-out the entire negotiation process; during the fourth session of the IGWG, Ecuador observed in re-lation to Article 15 :
“[Most] of the article [enjoys] the support of delegations and […] the reference to food sovereignty [is] causing the most problems. Food sovereignty [goes] beyond food se-curity and [includes] cultural and ancestral rights to use food products.”112
105 See e.g. Mexico, https://papersmart.unmeetings.org/media2/20305757/mexico-3rdcomm-l30.pdf (accessed 14 June 2020); Ethiopia, A/73/PV.55, 24.
106 Gleider Hernandez, International Law, Oxford University Press, 2019, 35. 107 A/HRC/16/63. 108 A/HRC/19/75. 109 A/HRC/RES/21/19. 110 A/HRC/26/48, para 40. 111 A/HRC/30/55, para 42. 112 A/HRC/36/58, para 169.
This right is particularly opposed by the European Union (even if some European States finally voted in favour)113 and the United States: during the third and fourth sessions of the IGWG, they
proposed amendments aiming at the replacement of the words “food sovereignty” by “food secur-ity” or “the right to adequate food”.114 Some participants note that the negotiation of the UNDROP
and the final vote “point to a divide between the countries of the Global South, which were largely in favour, and the countries of the Global North, which abstained or opposed the project”.115 The
vote is not only explained by the reluctance vis-à-vis the right to food sovereignty, but this one and other rights within the food sovereignty paradigm raised opposition the most. This opposition has led to a modification of the right to food sovereignty in the UNDROP, both in form, making it less visible (4.1.1), and in substance, reducing its content (4.1.2).
4.1.1 The reduced visibility of the right to food sovereignty
The right to food sovereignty is finally present in the UNDROP, but it has become less visible throughout the texts. In the early drafts, it is found in Article 2116 and 5117. It is then moved to
Art-icle 15, which also deals with the right to adequate food, first in paragraph 2118 and then in
para-graph 4119. Therefore, it ends up in the middle of an article, itself placed at the centre of the
UN-DROP. The right to food sovereignty has also disappeared from the titles of the articles in the work-ing drafts (in the final draft, the articles are not titled).120 This was a request from the European
Union in particular, which justified its position by saying that the right to food sovereignty does not exist.121 The absence of titles in the latest drafts may have been a way to facilitate the negotiations.
This hypothesis is supported by the fact that the right to food sovereignty is only indirectly referred to in the UNDROP. Paragraph 24 of the Preamble states that “the concept of food sovereignty has been used in many States and regions”, while Article 15(4) lays down a right before specifying that it is “recognized by many States and regions as the right to food sovereignty”. A participant in the negotiations acknowledges that a “compromise was made on the right to food sovereignty, which takes up the definition of food sovereignty that came out of the 2007 Nyéléni Forum122 […] without
explicitly stating that it applies universally”.123 Only Article 15(5) makes a direct reference to the
ex-pression "food sovereignty":
113 A/73/PV.55, 24 f.
114 A/HRC/33/59, Annex III, 23 ff.; A/HRC/36/58, see Annex III, 27 ff.
115 Andrea Nuila, Philip Seufert, Sofia Monsalve and Ana Maria Suarez Franco, Defying the conventional way of lobby -ing the United Nations, in Claeys and Edelman (n 80) 27.
116 A/HRC/19/75.
117 HRC, 2015; A/HRC/WG.15/3/2. 118 A/HRC/WG.15/4/2.
119 A/HRC/WG.15/5/2; UNDROP.
120 Compare A/HRC/WG.15/4/2 (“Article 15: Right to food and food sovereignty”) with the A/HRC/WG.15/5/2 (“Article 15: Right to food”).
121 A/HRC/36/58, para 166. Similar concerns were expressed by Chile, Egypt, Guatemala, New Zealand, Paraguay and Switzerland.
122 As show in the third chapter, this is not exactly correct.
