Just Access position paper at the Multistakeholder meeting at the OSCE Documentation Centre in Prague on world food security

1. Introduction

Many thanks to the Centre for Religion, Human Values, and International Relations; the Irish Council of Churches; CREATE; and PACE for convening this important event, for inviting Just Access, and for the thoughtful and clear discussion paper and concept note on multilateralism and methodology.

2. Human rights and responsibilities

Faith and international law are a powerful combination, and it is hard to think of a greater wrong that we must seek to right than systemic food insecurity. The Sustainable Development Goals and the rich and actionable tradition of stewardship that we find in all great world religions are not too hard to reconcile. Food is indisputably a human right, enshrined in UDHR Art. 25(1) and ICESCR Art. 11(2), as well as in specialised and human rights treaties, ranging from the Additional Protocol to the American Convention on Human Rights through the Convention on the Rights of the Child to the Arab Charter on Human Rights. Surveying State practice and opinio iuris, William Schabas recently demonstrated that the right to food, and the concomitant right to freedom from hunger, are not a matter of abstract principle or hard-nosed treaty compliance, but also a customary human right that all States must honour regardless of their treaty obligations or reservations.¹ One could plausibly argue that recent efforts to expand the definition of torture to encompass starvation also point the way to a not-too-distant future in which the right to food will be ius cogens, a non-negotiable and non-derogable peremptory human rights norm.

Yet how to enforce the human right to food? One path is opened by the hardening of ICESCR. Unlike its counterpart, the ICCPR, the ICESCR was designed to contain the aspirational parts of the UDHR, rights that States, strictly speaking, need not protect unless they have the resources to do so. That view is changing, and economic, social and cultural rights are increasingly binding upon States. The enforcement mechanism in this case would be a series of domestic cases by the starving millions. Such cases can be neither financed nor adjudicated by the relevant domestic courts, which tend to be in failing States to begin with.

A more promising route might be the UN Special Rapporteur on the Right to Food, a mandate created in 2000. Unfortunately, while the special mandates system is in many ways at the apex of global human rights mechanisms, they are not equipped to deal with collective cases. Individuals or families would have to file Special Procedures complaints, ideally both urgent and regular, and flood the Special Rapporteur. One of the most cherished initiatives at Just Access is prompting and supporting the UN special mandates system to enable collective human rights claims.² Features from the so-called structural investigations of the European Court of Human Rights, and group action and class action formats in the UK and the US, could help restructure the submission and processing procedures of the UN Special Rapporteur, ideally enabling masses with shared characteristics, such as age, location, cause of starvation and so on, to submit collective complaints. This procedural innovation, which we’ve been working on for a while, could not be put to better use than with a pilot project on food insecurity.

The human rights approach to food insecurity is fruitful and productive, but also insufficient. The religious traditions of stewardship recognise the responsibility of individuals in looking after the planet and each other. By comparison, the attention to responsibility in International law is in at embryonic stage. Earlier this year the Food and Agriculture Organization estimated food waste to have reached 17% in 2019: ostensibly a perpetratorless crime. The obligation of individuals, not only States, to reduce needless waste as the easiest form of food price control is clearer from a faith-driven than from a human rights perspective.

3. Climate change and food security

The discussion paper circulated before our meeting also calls attention to climate change as a serious cause of food insecurity. Once more, religious traditions can provide helpful insights. In an academic paper that Just Access’ Director co-authored in 2020, we argued that natural resources should be framed not as common, but as public goods.³

Common goods are nonexcludable (you cannot stop others from using them) but rivalrous to a certain degree, because in one way or another they are exhaustible. Public goods are equally nonexcludable but also nonrivalrous, because one party using them does not reduce availability to others. Natural resources such as water and air are global commons are rivalrous (exhaustible). In contrast, sustainably clean water and sustainably clean air are public goods, because sustainable purity or nontoxicity is not rivalrous. From a national or even international perspective, the challenge to reverse human harm to the environment might appear to pose a series of trade-offs, for instance between economic development and environmentally safe industrial processes, or between developing states, which rely on extractive industries, and highly developed states that can import raw materials due to their competitive advantage in higher value-adding sectors. Yet this is to misunderstand the point. The point is that benefiting from natural resources (air, water, livable climate, minerals, and so forth) is necessarily predicated on their sustainable use. The sustainability of their use is a bottom line that should never be undercut in any legal arrangement concerning elements of nature and is in that sense a nonnegotiable standard. To approach natural resources as exhaustible goods subject to rivalrous treatment is to ignore that sustainability is their defining intrinsic characteristic. In a sense, the challenge is therefore to reframe the global commons as public goods.

The benchmark for our collective tasks is not to establish acceptable trade-offs to regulate the commons, but to institutionally and procedurally embed an understanding of environmentally sustainable practices as a public good. Framing natural resources as common goods is a dead end. Even in the unlikely event that the relevant treaties predicated on the conceptualisation of natural resources as global commons were universally and faithfully observed, mechanisms such as the Kyoto Protocol and the Paris Agreement cannot be more than a means to an end. The end must be to reconceive of environmental sustainability politically, economically, and legally as a nonnegotiable standard. An uncompromisably global perspective, such as Christianity or global law, is essential for stopping sustainable public goods from being misunderstood and misrepresented as global commons.

4. Geopolitical disruption: non-state actors

Relevantly, Just Access holds that the current general framework of public international law needs considerable revision to tackle food insecurity. To cite one example: the greatest humanitarian crisis today is commonly said to be taking place in Yemen. WFP convoys are stopped and weaponised by the Houthis, who technically qualify under international law as terrorists, or as armed non-state actors at best. However, the Houthis see themselves as the real State, and they regularly try to meet Yemen’s international reporting obligations by submitting documents to periodic UN treaty reviews. The Houthis explicitly claim to be held to the standards of State responsibility, but they are technically disqualified from such accountability.⁴ To extrapolate from this synecdoche to the overall picture: the dominance of non-state groups tends to correlate with the distribution patterns of food insecurity. With much of the world turning into ungovernable spaces; much of the famine taking place within such spaces; and an international law taxonomy that was barely fit for purpose after World War II, rethinking the essential building blocks of public international law would be a necessary, albeit insufficient, part of the solution to the geopolitically motivated disruption to food security that the conveners of our meeting have rightly and emphatically drawn attention to.

5. Intellectual property

Finally, Just Access has been following with great interest the scientific discoveries that hold tremendous promise for alleviating food insecurity. Synthetic biology, in particular, seems to transcend the choice between monocultures and biodiversity, but also carries the risk, present throughout human history, of deepening the divide between haves and have-nots.⁵ If the fruits of synthetic biology, such as high-yield land crops with lower water requirements and higher saline toleration, or algae with comprehensive nutritional value, are monopolised by companies and States that invested in their research and development, the gap between traditional subsistence farmers, who bear the brunt of the burden of climate change, and the well-to-do regions and social strata with robust food security will open up even wider. This is why patent commons, ideally, or sovereign patent pooling, at a minimum, must become elements in mechanisms such as the UNFCCC Nationally Determined Contributions, as well as in individual States’ humanitarian efforts. Offering the technologies, recently discovered or yet to be discovered, to creating resilient and cheap food sources is a woefully underexplored solution.