TÍTULO I. DISPOSICIONES GENERALES Artículo 1 Objeto.
Artículo 2. Ámbito de aplicación.
Holt Giménez and Shattuck (2011) refer to the current global food regime as the corporate food regime, and state there are two major trends in this food regime, namely “neoliberal” and “reformist”. Similarly, there are two major trends in global food movements, namely “progressive” and “radical”. They call the neoliberal trend hegemonic, which is market-based and is driven by corporate agri-food monopolies. The reformist trend is almost identical to the neoliberal trend, with the difference that it calls for mild reforms to the regime through, for example, an increase in social safety nets, consumer-driven niche markets, and voluntary corporate responsibility mechanisms. The reformist trend employs a food security discourse,
119 is broadly oriented towards state-led assistance, and seeks to regulate, but not directly
challenge, market forces by seeking to mainstream less socially and environmentally damaging alternatives into existing market structures.
Regarding the trends in global food movements, the progressive trend calls for change to food systems on the basis of rights, and advances practical alternatives to industrial agri- foods, such as sustainable, agro-ecological and organic agriculture and farmer-consumer community food networks, largely within the economic and political frameworks of existing capitalist food systems. The radical trend is similar to the progressive trend, but takes a food sovereignty approach focusing more on entitlements and structural reforms to markets and property regimes, among others.
Categorisation of these trends in the current food regime classifies food security as belonging to the reformist trend of the food regime, and the right to food and food sovereignty as belonging to the progressive trend and the radical trend, respectively, of the food movement. This suggests that food security stands on one side as a food regime, and the right to food and food sovereignty on the other as food movements. As stated in the previous chapter, there is also a classification in which food security is a policy concept, the right to food a legal concept, and food sovereignty a political concept ( Beuchelt & Virchow 2012; Mechlem 2004; Windfuhr & Jonsén 2005). Therefore, the issue is not related to choosing one of the three concepts; rather, it is about viewing the three as different frames and having clarity on how they could be operationalised. However, despite the effort of presenting food
sovereignty as the most useful idea by its proponents, incorporating food sovereignty as a right in national legislation and giving it legal meaning has made the distinction between the right to food and food sovereignty less obvious.
As discussed earlier, the concept of food security has moved beyond the single focus on food availability to include other dimensions of access, utilisation and stability. The unit of
120 analysis has also moved gradually from the global to the national, and further below to the household and the individual. As a development policy goal, food security, at least at the household level, can be achieved by creating a legal obligation on the state. Taking the right- to-food approach could help create such a legal obligation. Hence, the right to food is part and parcel of the rights-based approach to development (Mechlem 2004). Food security is a development policy goal, and the right to food is an approach to realise that goal. Focusing on household and individual food security would bring food security closer to the realisation of the right to food (Eide, Oshaug & Eide 1991; Mechlem 2004).
A common perception about food insecurity is that it exists only in developing countries. But as Chilton and Rose (2009) demonstrate, it exists in developed countries as well. In the United States, in 2007, 11 percent of the population lacked access to enough quality food needed for an active and healthy life. Similarly, there is food insecurity among some groups in Australia (DAFF 2013), and since the late 1980s, there have been increases in food
insecurity in Canada and several welfare states (Riches & Silvasti 2014; Rideout et al. 2007). Food insecurity in these advanced countries might not be significant from a numerical
perspective, but since they are rich countries, and given the ethos of the welfare state, they do matter.
The rise in food insecurity in developed countries has led to a rise in food charities. When people have to depend on charity for their basic food, it means their right to food is not sufficiently respected, protected and fulfilled (De Schutter 2014). This is because meeting food needs through charities is benevolence, but not a right, as it mainly ignores the dignity aspect of an individual’s humanity, which is an essential characteristic of the right to food. Therefore, there is a need for a rights-based approach to addressing food insecurity also in developed countries (Chilton & Rose 2009; Riches & Silvasti 2014; Rideout et al. 2007).
121 Hence, the relationship between food security and the right to food is one of
complementarity. The two seem to cover the same terrain, even more so as food security lately has been understood at the level of the household and the individual. But food security is a development goal for which states do not have legal obligations, whereas the right to food places such legal obligation on states. In other words, the right to food is a rights-based approach to development in meeting food security goals.
The right to food and food sovereignty are presented as somewhat the same by some scholars,19 but as alternative policy goals by others (Lambek et al. 2014). Beuchelt and
Virchow (2012) have compared the two concepts and stated that the two are similar in many respects, but they also have certain differences. For instance, the target group of the concept of the right to food is all individual human beings, whereas the target group of food
sovereignty is mainly peasants, pastoralists, indigenous people, artisanal fisher-folk, traditional forest-dwellers and rural workers. In this sense, while the right to food
encompasses all individuals, including both food producers and consumers, food sovereignty is more about the rights of food producers. Food sovereignty is conspicuously silent about food consumers (Edelman 2014). Therefore, in contrast to LVC (1996), which claims that the basic human right to food can only be realised when food sovereignty is guaranteed, Beuchelt and Virchow (2012) argue that food sovereignty can be realised within the right to food. The concepts of food security and the right to food have evolved over the years, and there is more or less a consensus now on what they mean and how they could be realised. Regarding food sovereignty, there are variations in understanding this idea, and over the years, the idea has become more ambiguous rather than being clarified. If not understood in a radical form, the basic elements of food sovereignty, i.e., adopting the peasant way and focusing on
19 For example, De Schutter (2010) mentions Nepal’s including the “right to food sovereignty” in the interim
constitution when stating progress on the “right to food” at the national level, which is an illustration of viewing the “right to food” and the “right to food sovereignty” synonymously.
122 national food self-sufficiency in the sense of arguments made by Clapp (2017), can be
achieved within the frameworks of food security and the right to food. It is for these reasons that scholars such as Beuchelt and Virchow (2012), Haugen (2009) and Hospes (2014) make a case for adopting the concept of the right to food, and Gordillo and Jeronimo (2013) argue that food security and food sovereignty can be framed together, linked by the concept of the right to food.
The title of the voluntary guidelines prepared by the FAO is “Voluntary Guidelines to support the progressive realization of the right to adequate food in the context of national food
security”. This suggests a relationship between food security and the right to food, but does not specify what the relationship is. Mechlem (2004) discusses this relationship and
concludes that improving food security would lead to the progressive realisation of the right to food. However, she argues that a right to food approach to food security has distinct characteristics pertaining to “the justification underlying the two concepts, their nature, the unit they are mainly interested in, their focus, and their scope” (p. 648). Taking a rights-based approach complements food security through dimensions of dignity, rights
acknowledgement, transparency, accountability, and empowerment.
Similarly, Beuchelt and Virchow (2012) argue that the right to adequate food can become a powerful tool for marginalised groups or organisations acting on their behalf if it is integrated into national legislation. Enshrining the right to food in national legislation would give people a democratic voice and compel governments to design policies in people’s interests
(Birchfield & Corsi 2009). Therefore, it is important to ensure that states incorporate the right to adequate food in their national legislation. So far, 30 countries around the world have explicitly guaranteed the right to adequate food in their constitutions, and more than a hundred countries have included it implicitly and/or stated it as a directive principle of state policy (FAO 2017).
123 It should not matter much whether the right to adequate food is protected explicitly or
implicitly or as a directive principle in a country’s constitution. What is more important is whether the country has developed detailed mechanisms on how to implement the right to food, and if the mechanisms are followed through. From this perspective, according to Birchfield and Corsi (2009, p. 718), “India is a leader amongst nations seeking to legally enforce the human right to food”. India’s constitution neither explicitly nor implicitly guarantees the right to food. The directive principles of state policy on the right to an
adequate means of livelihood, secure work, a living wage, and conditions of work ensuring a decent standard of life, raising of people’s nutrition levels and the standard of living, and the improvement of public health are the foundations of guaranteeing people’s right to adequate food in India (Articles 39, 43 and 47 of India's Constitution, as cited in FAO 2017).
India has implemented the National Food Security Act (NFSA), which was passed by India’s Parliament in 2013. India did not legislate the NFSA necessarily to comply with its
international commitments. It did so to address food-related problems that arose at home. The need to guarantee the right to food in India, and mechanisms the state had to set to protect the right to food, started with a legal case that was brought to India’s Supreme Court in 2001.20
Additional petitions were brought to the case, and through a series of interim orders, the Supreme Court redefined government food schemes as constitutionally protected legal entitlements, outlined in detail how the government schemes were to be implemented, and also identified relevant authorities that it would hold accountable in the event of non- compliance (Birchfield & Corsi 2009). Subsequently, after much deliberation, the Supreme Court’s order to guarantee the fundamental human right to food was codified into the NFSA.
20 See Birchfield and Corsi (2009) for details about the case and how it led to the legalising of the right to food
124 A salient feature of the NFSA is the targeted public distribution system, according to which up to 75 percent of India’s rural population and up to 50 percent of the urban population would receive a uniform entitlement of 5 kg of grain per person per month at heavily
subsidised prices. The poorest of the poor would continue to receive their existing allowance of 35 kg per household per month. The NFSA also covers targeted benefits to women and children, such as nutritional support, maternity benefits and women’s empowerment (GoI 2013). The NFSA, therefore, establishes the right of every Indian citizen to have stable physical and economic access to basic food. Establishing the right to have stable access to food by every Indian citizen is currently more important than the focus on food production in India as the country has seen impressive growth in food grain production in recent years (Narayanan 2015). Hence, promulgation of the NFSA seems to be the right course taken by the Government of India, although there are challenges in “revisiting the operational aspects of food procurement and distribution for a more cost-effective and nimble system”
(Narayanan 2015, p. 207).
According to international human rights law, there are three obligations on states to ensure human rights: the obligation to respect, the obligation to protect, and the obligation to fulfil (Box 5.1).
Box 5.1: States’ human rights obligations
Obligation to respect: States must refrain from interfering with or curtailing the enjoyment of human rights.
Obligation to protect: States must protect individuals and groups against human rights abuses.
Obligation to fulfil: States must take positive action to facilitate the enjoyment of basic human rights.
Source: UN (n.d.).
From the perspective of the human right to food, states’ obligation to respect entails not interfering in people’s abilities to make food available for themselves (FAO Legal Office
125 1998). Similarly, the obligation to protect requires, for example, establishing a regulatory environment in the fields of food safety and nutrition, protection of the environment and land tenure. The obligation to fulfil requires identifying vulnerable groups and designing,
implementing and monitoring policies that would facilitate their access to food-producing resources or an income. Direct assistance might have to be provided as a last resort. India’s efforts at providing its citizens the right to food through the NFSA, which has been hailed as a leading example, focuses mostly on the obligation to fulfil, more so as a last resort. It defines food security narrowly as “the supply of the entitled quantity of foodgrains and meals” and covers the public food distribution system (The National Food Security Act 2013, p. 2). However, it touches upon the obligation to respect and protect in Schedule III of the Act, where it mentions agricultural revitalisation, procurement, storage and movement related interventions, and access to safe water and sanitation, health care, and so on.
Compared to the FAO voluntary guidelines on the right to food, India’s NFSA has very limited coverage. Yet, it has been applauded as a good example because other countries have not explicitly ensured legal protection in this manner despite some of the countries’ explicit recognition of the right to food in their constitutions. If these countries were serious in
providing the right to food to their people, and if they followed the voluntary guidelines, they could comprehensively cover a wide range of issues related to food and agriculture.
5.6
Conclusion
The idea of food sovereignty is ambiguous. There is no clarity on what the “sovereignty” of food sovereignty entails, and whose sovereignty it calls for. Acceptance of the existence of multiple sovereignties in food sovereignty does not help resolve the ambiguity in the exercise of food sovereignty, due to the complex nature of the food system. There are different
narratives about national food sovereignty and local food sovereignty. National food
sovereignty for some is about large-scale industrial agricultural production to ensure national food self-sufficiency and avoid external influence of all forms. Local food sovereignty
126 narratives call for the adoption of small-scale family farming and emphasis on local
agriculture. Local food sovereignty narratives call for people’s sovereignty to be guaranteed by the state, whereas national food sovereignty narratives call for states’ sovereignty from any external influence such as the WTO membership, FTAs, international financial
institutions’ conditionalities, and so on. As discussed above, reconciling the two narratives and redefining state-society relations on food and agriculture, therefore, looks complicated. The concepts of food security and the right to food have received clarity in their
understandings after years of deliberations. Therefore, operationalising the concepts of food security and the right to food effectively might be more beneficial than introducing a new concept, which is more ambiguous and seems difficult to implement. Food security and the right to food can encompass the major elements of food sovereignty such as a focus on small- scale local agriculture and on national food self-sufficiency. It is up to the states to decide whether they want these elements to be encompassed, and if so, to what extent.
As discussed above, proponents of the idea of food sovereignty allege that by entering into bilateral, regional and multilateral FTAs that cover food and agriculture, states experience a loss of national sovereignty. If this is the case, states can reclaim their lost sovereignty by pulling out of the agreements. But this is more easily said than done. These agreements do not cover only food and agriculture, and therefore, states do not only take food and
agricultural issues into consideration in making their decisions. Alternatively, they work within the system to bring about the required changes as India has been doing in the WTO. Providing a legal guarantee to food sovereignty as a right in a country might not help overcome the loss of national sovereignty defined in this manner.
This brings us back to the question of how an idea such as food sovereignty gets institutionalised. The idea of food sovereignty looks to be ambiguous, but politically appealing. This might have made the idea of food sovereignty a potential coalition magnet,
127 which could have facilitated its adoption by states. Before assessing the possibility of the idea of food sovereignty acting as a potential coalition magnet, we need to confirm that the idea is indeed ambiguous. As discussed in earlier sections of this chapter, the way food sovereignty is being defined and promoted by social movements suggests that the idea of food
sovereignty is ambiguous. But how have countries that have institutionalised food sovereignty been implementing it? Is there uniformity in the implementation of food
sovereignty? If yes, we could argue that despite the various notions of food sovereignty, there could be uniformity in its implementation, thus refuting the claim that the idea of food
sovereignty is ambiguous. If not, it would confirm the claim that food sovereignty is indeed an ambiguous idea, hence taking us a step closer to seeing the idea of food sovereignty as a potential coalition magnet. In the next chapter, I examine, although briefly, how food sovereignty is being implemented by some Latin American countries that have incorporated the idea in their countries’ constitutions and/or legislation, and investigate the ambiguousness of the idea of food sovereignty.
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