key: cord-0687799-55gc21o6 authors: Fakhri, Michael title: A Trade Agenda for the Right to Food date: 2021-10-13 journal: Development (Rome) DOI: 10.1057/s41301-021-00305-0 sha: fa618244268fa2a37ce7f10b5959e2fec13bfff7 doc_id: 687799 cord_uid: 55gc21o6 Whoever benefits from a trade regime in effect gains power over significant aspects of different food systems. And yet the WTO still does not provide a coherent food policy and the 2021 UN Food Systems Summit made very little space for trade policy. The degree of international trade policy discord and supply chain fragility strongly suggests that there must be new international trade negotiations around fundamental questions of principle. Seeing little benefit in reforming the WTO, this article explains how the trade agenda for the right to food could focus on territorial markets and negotiating new types of treaties, International Food Agreements. The 2021 UN Food Systems Summit (hereafter referred to as the Summit) represented a growing global consensus that many of the world's food systems needed to be transformed. But the Summit process itself also reflected many of the shortcomings in the global governance of food. Indeed, the Summit can be understood as an attempt to reconfigure the global governance of food in a way that furthers corporate interest (Canfield et al. 2021) . For about 18 months in preparation for the Summit, I witnessed first-hand how the Summit was organized. 1 This was because as the UN Special Rapporteur on the Right to Food, I was invited by the Summit Secretariat to provide my independent advice to the people leading different parts of the Summit preparation. Because of the terms of my mandate as defined by the Human Rights Council, I had no choice but to accept the invitation. During the whole time, no one could articulate a clear explanation of what the Summit was supposed to be and do. If you asked five different people, you would get ten different answers. Governments were confused, people were confused, and at times the Summit leadership was confused. By engaging with all aspects of the Summit, I was a centrepoint for discussions amongst the Summit organizers, governments, international organizations, social movements, advocacy groups, businesses, and individuals committed to promoting human rights at the Food Systems Summit. Others explain how the Summit reflects a broader attempt by the World Economic Forum to influence the UN. 2 In this article, I instead focus on trade policy. Not only is trade policy central to any attempt to transform a food system, but some explanation is needed as to why trade was not more prominent in Summit discourse. I first describe the Summit, framing it as an inter-corporate debate. Here I also briefly interpret the role of trade within Summit discourse in relation to the World Trade Organization (WTO). I then introduce trade as a matter of global governance with a description of the limits of Agreement on Agriculture. Undoubtedly, all aspects of the WTO influence food policy, especially in areas such as intellectual property. But for now, I focus on the Agreement on Agriculture which has been at the heart of ongoing WTO ministerial negotiations. I then provide an outline on what a new trade agenda could be, based on the right to food. Many of the problems in today's food systems started in the 1950s and 1960s with the growing power of corporations in national food systems in the Global North. By the 1974 World Food Conference, some national delegates raised concerns that multinational corporations had too much power as buyers of developing country products and sellers of necessary inputs, much like the core debates around the 2021 Summit (World Food Conference 1975: 36) . More recently, the 2007 food crisis led to new institutional innovations like the re-designing of the UN Committee on World Food Security (CFS) to be more self-governing. This re-design included the creation of the autonomous Civil Society and Indigenous Peoples Mechanism (CSM) and the adoption of the right to food in its vision statement. Just when most places were recovering from the food crisis and the 2008 financial crisis, we were all hit by the COVID-19 pandemic and a new food crisis. Every food system in the world is now unstable. While at the same time, the effects of climate change are felt everyday by everyone. Only with all these crises, did the corporate agrifood sector decide to change its ways. The problem they faced was that current food systems were locked in patterns that polluted the environment and violated people's human rights. Transnational corporations designed the food systems that way because it maximized profits. They exploited the world's ecosystems and workers, and took land and water away from Indigenous peoples and small food producers. They left nothing for anyone. After they destroyed many of the world's food systems, transnational corporations knew they had to become more sustainable, more 'green'. Another way to put it is that many in the corporate sector wanted to move from industrial intensive agriculture to sustainable intensive agriculture (or a new Green Revolution). Sustainable intensification in many ways tries to better align with ecological goals such as soil health and increased biodiversity. Nevertheless, its methods are proving to be more a reform of industrial agriculture than a transformation of a food system (Kuyper and Struik 2014; Loos et al. 2014 ). Both sustainable intensification and industrial intensification rely on capital-intensive processes and technologies, thus reflecting the status quo of the current global political economy of the food system. Both frame the problem primarily in terms of production, farm size, and scale of operation. Both rely on a theory of knowledge in which, for the most part, scientists and experts deliver knowledge to farmers. Sustainable-oriented corporations wanted to change but they did not want to lose any power or profits. While at the same time, not all agrifood corporations wanted to really change their ways. The sustainable-oriented corporations needed to pressure the other corporations to change. They also needed to convince the world's governments that food systems should be transformed, and that the corporate sector were the ones to do it. The Summit was designed to serve this agenda in three ways. First, governments had to be convinced to activate several national ministries and agencies to start devising a national food plan (what the Summit calls 'national pathways for food system transformation'). The Summit successfully achieved its first goal through its Member States Food Systems Summit Dialogues. Second, the corporate sector had to be ready with its cadre of experts, think tanks, scientists, communications teams, and media personalities to be positioned to then partner with national governments to transform their food system. The Summit mobilized a network of corporate-friendly experts and it remains to be seen how many national governments (and international organizations) will rely on the Summit's network. Third, the corporate sector could not do this too openly. They needed to increase their public legitimacy because they were the cause behind the crumbling of the world's food systems. They needed things like the Secretary-General's convening power and human rights' popular support. The over-500 organizations representing millions of people who boycotted the Summit were correct when they raised the alarm that the Summit was in part a corporate attempt to hijack human rights language. Nevertheless, the Summit failed to capture human rights. It is clear to most people who participated in the Summit who were committed to human rights that the Summit used human rights language cynically. The Secretary-General, the Deputy Secretary-General, and the Summit Secretariat never substantively responded to the number of human rights concerns that were independently raised by different parties. The response was always that human rights were important and everyone is welcome to participate. This was a superficial definition of participation that gave people the space to speak within the Summit process but not the power to affect the Summit. Because of mass popular mobilizations, however, the meaning of human rights remained in the hands of the people. As part of the Summit process, the WTO Secretariat held an independent dialogue. 3 It included ten breakout rooms covering a wide range of food policy topics (I led the right to food break out room). Participants included government representatives, international organizations, academics, research institutes, businesses, and organizations representing certain business sectors. This was a marked change compared to the 2007 food crisis, when the WTO Secretariat at the time refused to consider food policy as an international trade matter, leaving it to national policy (Fakhri 2015) . The current WTO Secretariat finally conceded what social movements have been arguing since the advent of the WTO: food security and environment are trade concerns. The reason that the WTO Secretariat was eager to convene the dialogue was because the widely-held opinion amongst Summit leadership and circulating within the Summit preparation process was that global value chains needed to be shorter. From the WTO Secretariat's perspective, this view was too simplistic. In other words, the WTO held the Dialogue to reassert its power over trade discourse. Both the WTO and the Summit are corporate-friendly but have different geographical visions of a market-the WTO articulating a vision of a global market and the Summit providing a space focused on national and regional markets. Free trade ideology has been challenged by people's and business' daily struggles during the pandemic. People are relying even more on their local food systems. Businesses are having to quickly adapt to global supply chain disruptions. One of the most popular demands from local governments, social movements, advocacy groups, experts and some national governments is a call to promote local food production, short supply chains and a greater degree of self-sufficiency. 4 Even before the pandemic, long supply chains were losing popularity. Agrifood companies had been sourcing their ingredients from a large number of different places. They knew how to leverage low tariffs and rely on buying goods from the cheapest source. Corporations were also often reluctant to ask too many questions about where they primary goods derived from. Global value chains were increasingly being criticized for being 'too long' because it made it more difficult to hold the ultimate purchasing business accountable for human rights violations at different points of the chain. Due to the increased number of lawsuits and public attention, corporations are exploring new options. Today, for example, chocolate companies like Mars and Ferrero are now looking to create shorter supply chains. This is unlikely to solve anything in and of itself, however, since it will likely only move environmental issues from abroad to the corporation's home country. 5 In fact, one can imagine a shorter supply chain making it easier for large companies to grab land or consolidate more of their market power. While the WTO Summit Dialogues and its own Trade Dialogues on Food mark a discursive shift within the Secretariat, 6 it remains unclear whether that will translate into new trade politics. Within the WTO, agriculture has been a contentious issue threatening the institution's legitimacy from the beginning and continues to create fundamental discord amongst governments. The WTO still does not provide a coherent food policy. Just like the Summit does not provide any space for trade policy. Regardless of the WTO's position, trade significantly influences food systems all over the world. A country's trade policy determines how land, water, and energy is used and distributed. For example, when countries decide to devote land to exporting commodities, it usually reduces biodiversity. More specifically, 100 million hectares of tropical forest were lost from 1980 to 2000, resulting mainly from cattle ranching in Latin America (about 42 million hectares) and plantations in South-East Asia (about 7.5 million hectares, of which 80% is for palm oil) (Brondizio et al. 2019 )-most of these operations produced primary commodities for the purpose of export. International trade institutions and policy also determine how our borders work, directing the flow of goods, capital and people in particular ways, creating the conditions for global value chains. As a result, whoever benefits from a trade regime in effect gains power over significant aspects of different food systems-making trade always a food governance issue. During the pandemic, the fact that governments came together multilaterally and agreed to ensure that their borders remain open to the flow of goods is a political success. But with significant supply chain disruptions and deteriorating work conditions for labourers across different parts of food systems, the pandemic highlights that such a political agenda is disconnected from the social and economic fragility of international food systems. 7 The consensus shared by both champions and critics of WTO alike has been that in practice the Agreement on Agriculture has neither created a liberal global market nor has it benefited poorer countries, whose economies depend on the agricultural sector. It has instead protected powerful countries and allowed those governments to use public agricultural funds to subsidize large transnational corporations (Häberli 2016; Fakhri 2020). To understand the challenge ahead it is worth noting that there is no longer a globally shared understanding around trade law and policy itself. For at least the last 120 years, international trade law and policy in agriculture has always been about negotiating and renegotiating a global consensus around what counts as a good subsidy versus a bad subsidy (Fakhri 2014; . Today, we are at a point where there is no longer a global consensus around agricultural subsidies and government support more broadly. Member States are in serious conflict over what public policies count as market distortions and which are the preconditions for a fair and stable market. This is because there is no longer a multilateral agreement around what constitutes a market. Trade law creates a transparent and predictable market only when there is a political consensus around what is a fair and stable market. Starting in the 1980s, a fair and stable market was measured in terms of the flow of trade. A constant increase in the flow of trade (or by proxy, a constant reduction of 'barriers to trade') indicated that international markets were working normally. Many supporters and critics of the WTO shared the assumption that the purpose of the WTO was to constrain political choice and focus on freeing the flow of trade as much as possible (i.e. 'free' trade). The arguments have consequently been about being for or against trade. Both sides in the debate share a unidirectional understanding of trade, usually measured in terms of goods and capital flowing into or out of national economies. It may be more helpful to think of trade flows like water flows. So in response to arguments for free trade, one could argue that a constant increase in flow leads to flooding. What matters more is how we create patterns of flow and how we organize our life around those patterns. Moreover, thinking about trade patterns like water flows helps overcome the binary of local versus global by focusing attention more on sharing resources through seasonal changes. The WTO's purpose, like all international trade regimes, has always been about being a place for parties to organize their power and negotiate the global political consensus around trade concepts. When those concepts are put into practice through law and existing institutions, they shape the pattern of trade flows. The degree of international trade policy discord and supply chain fragility strongly suggests that there must be new international trade negotiations around fundamental questions of principle. Since 1994, the WTO has been the only place to negotiate and enact international trade law on a global scale. But it is not clear that the WTO should be the only place or a place at all where those new conversations and global renegotiations should be held. The WTO Agreement of Agriculture was part of a wider deal that created the WTO. Going into the Uruguay Rounds in 1986, developing countries had, either through IMF structural adjustment programmes or unilaterally with the aid of World Bank programmes, already implemented a 'small revolution' and had liberalized their agricultural sectors. By the late 1980s, many developing countries were exportoriented and did little to support domestic agricultural production (Dean 1995) . What the Agreement of Agriculture did was re-new the international protections granted to the US and to (what was then) the European Economic Commission (EEC) under the General Agreement on Tariffs and Trade (GATT)-in effect legitimizing the European and US systems of subsidies. The global understanding was that eventually the European and US governments would reduce their subsidies and allow food and agricultural products to come in from what were former colonies. In return, developing countries agreed to TRIPS which extended intellectual property rights in effect for Global North companies looking to expand to the Global South. 8 That bargain never materialized. 9 Though the Agreement on Agriculture included mechanisms to encourage the European and US governments to reduce their subsidies, in practice the Agreement was flexible in a way that has mostly supported countries with industrialized agricultural sectors and significant import rates like the EU and US. Since 1982 in the days of GATT, and continued under the WTO Agreement on Agriculture, agricultural trade negotiations have been focused on three 'pillars': • Improving market access by banning quantitative restrictions, converting behind-the-border policies into tariffs and gradually reducing all agricultural tariffs; • Gradually reducing export subsidies to zero; • Limiting the scope of permissible domestic support (GATT 1982) . 'Tariffication' under the first pillar was completed with the advent of the WTO in 1994. And on the second pillar, at WTO Ministerial in Nairobi in 2015, Members agreed for the first time to abolish export subsidies. The third pillar remains unresolved. The US and EU, amongst others, have never committed to limiting their domestic support and instead used international institutions to support their domestic food and agricultural sector. The trade agenda should no longer be about limiting domestic support. The new global trade should be about ensuring all Member States and people, especially those that are marginalized, can rely on international institutions to support their national food policy. Before the WTO in the days of GATT, developing countries could at least rely on international commodity agreements and UNCTAD to support their national agriculture and trade policy. Today, developing country governments, especially import-sensitive countries, have very few places to turn to support their respective national food and trade policy. This discord within the WTO and disjuncture between the WTO and Summit creates an opportunity to change who benefits from international trade and in effect redistribute power in food systems more fairly. Within the WTO there are bitter divisions over what needs to be changed about the Agreement on Agriculture and how that change will happen. It is unlikely that WTO Members can overhaul the Agreement on Agriculture to meet longstanding claims for equity. The Agreement on Agriculture should therefore be wound down. Building new food and agriculture agreements upon the foundation of human rights could make food systems all over the world more fair. The first step to create a new trade regime requires a new conceptual focus and institutional map. I suggest that the trade agenda for the right to food focus on territorial markets and negotiating new types of treaties, International Food Agreements. When thinking about changing food systems, it is important to understand how things are now. Smallholders produce approximately 70% of the world's food and yet they face hunger, malnutrition and egregious right to food violations. Part of the problem is that smallholders find it difficult accessing and benefiting from local, national and regional markets because of barriers to finance, infrastructure and appropriate technology. 10 The 2016 CFS Policy Recommendations Connecting Smallholders to Markets was an important step towards better understanding and developing the role of markets in food systems in a way that focused on people and not economic growth. 11 Civil society and Indigenous peoples through the CSM refined some of the concepts from the Policy Recommendations even more and introduced the notion of 'territorial markets' to capture a richer understanding of local, national and regional markets (Kay 2016) . The GATT imagined the world as interconnected domestic markets, and the WTO set out to construct a global market. The term 'territorial' market allows people to overcome the limitations of only thinking in terms of local versus global. Territorial markets can be local, national, or transboundary. They can also be rural, peri-urban, or urban. Thinking of the world in terms of territorial markets helps researchers and policymakers better understand how many people actually buy, sell and share their food. The following points outline the characteristics of territorial markets (Kay 2016 ): • Bounded Territorial markets are directly linked to particular local, national and/or regional food systems. Food is produced, processed, sold or distributed, and consumed within a given territory. The gap between producers and end users is narrowed; and the length of the distribution chain is significantly shortened or even direct. This can be contrasted to food systems that are at the mercy of global markets, food that is the result of opaque global value chains, or processed foods that are sourced from a variety of places. • Diverse Territorial markets are inclusive and diversified with a wide variety of agricultural and local food products to the marketplace, reflecting the diversity of the food system(s) of the territory. • Holistic Territorial markets perform multiple economic, social, cultural and ecological functions within their given territories-starting with but not limited to food provision. • Remunerative Territorial markets are the most profitable for smallholders since such markets provide farmers with more control over conditions of access and prices than mainstream value chains and more autonomy in negotiating them. • Circular Territorial markets contribute to structuring the territorial economy since they enable a greater share of the wealth created to be retained and redistributed within the territory. • Legal Territorial markets may be informal, formal, or somewhere in between. Informal means not taxed or licensed, it does not mean illegal. Being more formal does not necessarily suggest that a market is better functioning. To varying degrees, all have some links with the relevant public bodies and the state through tax collection or through public investments. • Embedded Territorial markets include embedded governance systems meaning that they operate according to a set of commonly shared rules that are negotiated between producers, consumers and the different authorities of the territory concerned (what some also call 'nested markets'). • Solidaristic In addition to serving as spaces in which buyers and sellers are matched up, territorial markets are places where political, social and cultural relations are made and expressed, and where all people involved interact according to varying degrees of interdependence and solidarity. The power relationship amongst producers, processors, traders and consumers is more horizontal. This means that markets are constituted by long-standing relationships of trust. Since it has been established that agroecology provides communities and governments the best way to fulfill everyone's right to food, 12 people are now asking a more programmatic question: what kind of markets do we need to transition to agroecology? 13 Territorial markets are best suited to help communities and governments transition to agroecology and fulfill everyone's right to food. For research purposes, it may be useful to understand how food systems and territories are made through movement especially if one element of territorial markets is to circulate wealth. All food systems generate movement, and human and non-human animals are constantly migrating (Marris 2020) . In fact, people often build their cultures and food systems around the seasons, tidal shifts, and movements of a particular species through space and time. Pastoralists, fishers, and some Indigenous people's sense of their home territory is bounded by the movement of the animals they depend on. Moreover, human migration is often the result of power disparity (Achiume 2019). With climate change, people, non-human animals, and entire biomes are migrating at unprecedented rates (Shah 2020) . This means that territories are quickly changing in scale, nature, and size. This also means migrant workers are some of the most vulnerable to sickness and death in the pandemic. It is helpful to map territorial markets as they are. 14 It would be more productive to also have a better understanding of how new territories are being remade in real time. The tactical question is whether people can use the right to food and human rights to organize their collective territorial power in a way that ensures all food systems are equitable and flourish. To help answer that question I draw from my recent reports and provide an institutional map for the future based on existing legal footholds. 15 Winding down the Agreement on Agriculture leaves us with GATT as the anchoring piece of trade law. The GATT on its own differs from the WTO. 16 The GATT is an 'interface' system that recognizes different types of economies and ameliorates the international tensions caused by those differences, without having to resolve anything through regulatory harmonization (Jackson 1990: 82-84) . This creates the flexible framework necessary to create new types of trade agreements: ones that draw from human rights and specifically prioritize the right to food. The GATT provides two legal forms through which International Food Agreements could be developed: Regional Trade Agreements and International Commodity Agreements. International Food Agreements could be created by redirecting the function of these types of agreements towards prioritizing the right to food. Regional Trade Agreements are more familiar since their numbers abound and countries continue negotiating new ones. GATT allows countries to derogate from the guiding principles of non-discrimination (Article 1) and grant more favorable conditions to the trade of goods with regional partners than to other WTO members (Art. XXIV and Enabling Clause). Regional Trade Agreements are limited, however, because they primarily focus on increasing the flow of trade between Member States. Countries integrate their economies through RTAs for a host of geopolitical and economic reasons, therefore their purpose varies. Most importantly, RTAs have not proven an effective way to improve life in developing countries and often re-entrench unequal relations between countries (Gammage 2017) . International Commodity Agreements offer more promise. The GATT was originally negotiated as part of the larger International Trade Organization (ITO). Under the ITO plan, international trade in agriculture was intended to be governed by International Commodity Agreements (Chapter VI) not GATT (Chapter IV). This structure is still valid today, and any new International Commodity Agreements would still need to conform to certain principles: International Commodity Agreements could only be adopted to deal with severe market disruption; their aim would be limited to price stabilization and not price increases; and importing and exporting countries would have equal voting power. 17 Thus, GATT Article XX(h) exempts International Commodity Agreements from GATT rules and provides the flexibility needed for future International Food Agreements. The bit that many overlook is that the right to food includes within it a trade provision in the International Covenant on Economic, Social and Cultural Rights (ICESCR)-Article 11(2)(b) requires government to take measures that create equitable trade in food. Combining these two provisions, interpreted through modern human rights norms, International Commodity Agreements could be repurposed to become International Food Agreements. As a preliminary matter, the process leading to these agreements needs to be negotiated. Nothing stops Member States from updating their interpretation of GATT/ICESCR provisions to secure a legal foothold for International Food Agreements and then decide which multilateral institutions could administer and coordinate international food agreements. All that matters is that new conversations and renegotiations are in an institutional space where human rights are at its core. This could be the CFS, ILO, or even UNCTAD if it took on a human rights agenda. The multilateral process must be multiscalar and advance people's human rights. There are very few examples of such a process. However, local governments, cities, and the CSM could be key partners in developing such a process. International Food Agreements would be an opportunity to be more deliberate about constituting and governing territorial markets. Negotiating these agreements would force governments and people to consider and facilitate the changing scale, nature and boundaries of existing territorial markets. The scope and nature of International Food Agreements, however, would have to be clarified. Using some existing examples, they could focus on keystone species (Lightfoot and MacDonald 2017) or food staples (like the 1967 International Grains Arrangement). They could also be made-up by an alliance of several communities around the world. Or territories could be formed around procurement programmes. International Food Agreements should therefore reflect different social-ecological food contexts in order to generate regional or plurilateral food hubs. Most importantly, since all ecosystems are interconnected, the ultimate challenge is having an institutional process in place to manage International Food Agreements so that all the world's territories enhance biodiversity and fulfill everyone's right to food. Building from the experiences of labour unions and food producer collectives (as well as the institutional design of the CFS, Arctic Council and ILO) people working in food systems should have bargaining power reflecting the fact they are essential to the food system. All essential workers' and marginalized people's bargaining power should reflect their position as rights-holders and political constituents in food systems. In this regard, paying attention to the right to food simultaneously with the right of association is key. In turn, it is governments' responsibilities, individually and collectively, to ensure that the price for food producers is remunerative while ensuring that at the same time the price for food consumers is fair. The challenge is to translate these human rights processes and principles into a trade negotiation plan. 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