المنتدى العالمي المعني بالأمن الغذائي والتغذية

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الدكتور Hugo Alfonso Muñoz Ureña

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المنظمة: Passe-partout Ed Tech
الدولة: كوستاريكا
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    • Dear Mr. Sameer Karki

      Technical Officer with the FAO-GEF Coordination Unit under the Office of Climate Change, Biodiversity and Environment of FAO      :

      Thank you for opening this space for participation.  I am pleased to share these ideas from a legal perspective, which are a simplified version and without bibliographical references of a previously published article of my authorship in:

      - The Legal Personality of Rivers and Food Sovereignty, Tools for local development (Chapter 11) in Legal Personality for the St. Lawrence River and Other Rivers of the World, JFD Éditions, Quebec, 2023, pp. 313-24

      - La personnalité juridique des fleuves et la souveraineté alimentaire, des outils pour le développement local (Chap. 9), In Une personnalité juridique et des droits pour les fleuves - A Legal Personality and Rights for Rivers. Montréal, Ed. JFD, 2021 237-50

       

      I hope it will be useful.

      Best regards,

      Hugo Muñoz

       

      The Legal Personality of Rivers and Food Sovereignty,

      tools for local development

       

      Introduction

      Food sovereignty and the legal personality granted to elements of Nature, such as rivers, are normally appreciated as two completely distinct and unrelated situations. Nevertheless, a convergence between the two is observed in relation to the potential effects on local development. This work is thus an effort to approximate food sovereignty and the legal personality granted to rivers from this point of convergence.

      On the one hand, the claim to sovereignty serves to enhance the value of territory and food (A). On the other hand, the legal personality granted to rivers can contribute to the development of a responsible management of the hydrographic basin (B). Both mechanisms are thus able to contribute to the success of sustainable local development.

      A. The claim of food sovereignty, a way to value territory and food

      Since the mid-1990s, "peasant agriculture" has begun to be claimed. It is, in fact, a vindictive movement of self-preservation, which repudiates the so-called "corporate" agriculture, of "extractivist" nature. However, it must be said that such peasant agriculture has faced the difficulty of being able to unite under a single flag, what is in reality a heterogeneous group of agricultures.

      The adjective "peasant" highlights the belonging to the country, to the countryside, to rurality. From there, several elements are (directly or indirectly) evoked that will serve to characterize this type of agriculture. Thus, while corporate/extractivist agriculture relies for its expansion on the phenomenon of Globalization, peasant agriculture vigorously claims food sovereignty.

      Food sovereignty seeks to promote the anchoring to the territory and to emphasize the specificity of the food (b). This involves an important difference between food sovereignty and food security (a).

      a. The distinction between food sovereignty and food security

      In Latin America and perhaps elsewhere, some public authorities, like the critics of food sovereignty, often resort to a kind of opposition between food sovereignty, on the one hand, and food security, on the other. We are talking about food security as defined at the World Food Summit held in Rome in 1996, in the broadest sense of the term.

      The reality is that there is no real opposition between these two terms, but a distinction of values put forward. The experience of the 2008 food crisis, as well as the current health crisis due to the Covid-19 pandemic, show the insufficiency of the current definition of food security. Among other aspects, it neglects the food vulnerability resulting from an excessive dependence on international trade to ensure the supply of food.

      Several consequences follow from this distinction in values. Food sovereignty implies self-determination over what is produced and what is eaten, while at the same time assuming strong roots in the territories. These two characteristics run counter to the phenomenon of globalization, as they are based on the idea that there is no "exchangeability" between territories or between foods (they are not "commodities"). The emphasis is placed on the specific character of the territories where the peasants (producers) have settled and on the particularities of the foodstuffs produced there.

      b. Territorial anchoring and the specificity of the food

      With regard to territorial embeddedness, it is worth noting, as an example, that in Latin America corporate agriculture is clearly export-oriented and subject to foreign direct investment. Therefore, it is highly prone to the relocation of activity. In this sense, Latin American countries even "compete" with each other, to attract foreign investment in the agricultural sector. On the contrary, peasant agriculture is an activity that is totally rooted in the territory; it is a rooted, "territorialized" (also called "localized") agriculture.

      As for self-determination over what is produced and consumed, food sovereignty supports, more or less clearly, the existence of a collective natural/born right to free choice over what is grown and what is eaten. A natural right that is exercised on a given territory. This aspect is today held as one of the components of the human right to adequate food, which further confirms the “jus-naturalism” approach followed.

      Both the rooting to the territory, as well as the defense of self-determination over what is grown and eaten, are elements that act and make stronger the identity of food and, therefore, of the culture of the peoples. It is also another way of arriving at a justification similar to the one that gives rise to the signs that serve to communicate a specific food quality, deriving from its origin, such as the appellations of origin (PDO) and the protected geographical indications (PGI). Nor is it far from the logic behind recent efforts in the United States (“COOL rule”) and the European Union, among other examples, to make it compulsory to inform consumers about the origin of foodstuffs sold in bulk or the origin of the main ingredients of processed foodstuffs.

      Food sovereignty thus calls into question the tradability of food and, as a result, its characterization as a mere commodity. In this context, the word sovereignty was well chosen because of its semantic link to the word territory. Territory is used to characterize food.

      In Latin America, the use of the term food sovereignty is often associated with a protest approach. This sometimes leads to the replacement of the term by another such as "food autonomy", as is the case in Quebec. Nevertheless, some countries in Latin America and Europe do not have concerns about the term. For example, in order to motivate the adoption of the law "for the balance of commercial relations in the agricultural and food sector" in France (2018), the French government has referred quite often to the specific term of food sovereignty.

      It must be said that the debates around agriculture and territory are not far from the debates around water. By the same logic, if territory and food are not tradable, neither should water be.  It is precisely here that an important common point can be appreciated between, on the one hand, the effects of Food Sovereignty, and on the other hand, the effects of granting a legal personality to Nature and, more particularly, to rivers.

      B. The legal personality of rivers, a way to emphasize responsible river basin management

      For the Law, nature and all its elements are held as things. Such a conception, inherited from the Colony, has very recently been strongly questioned by legislators and, in particular, by judges in various countries. This has had the effect of recognizing the legal personality of nature (a) or of certain of its elements, such as rivers (b).

      a. The legal personality of nature, a legal fiction for the protection of the environment

      Among the foundations of law, we find a classification that distinguishes between persons (subjects) and things (objects). However, what falls into one or the other category has been subject to evolution over time. As far as subjects are concerned, one could say that in the past not all human beings were considered as persons. Slavery, among other examples, highlights such a situation.

      The law has also been able to add certain abstract constructions to both categories. By way of legal fiction, new subjects, called legal/moral persons, are unquestionably part of the category of persons (corporations, cooperatives and even states). In a similar way, "intangible" goods, such as subjective rights or goods resulting from intellectual property, are nowadays part of the category of things.

      This distinction between persons and things, has for effect that the subjects can exercise a domination on the objects. This domination takes different forms, but persons are the only ones capable of having rights and obligations. Such capacity is part of the attributes of the legal dimension associated with the person, in other words, of his legal personality.

      In the context of the legal protection of the environment, nature and its elements are held as objects. The ultimate objective of this protection regime is therefore the well-being of people. This corresponds to the so-called "anthropocentric" approach followed by the Law.

      Some innovative approaches are nevertheless present in the national laws of certain countries. For example, the notions of Buen Vivir -Good Living- (from Quechua "sumak kawsay") and Vivir Bien -Living Well- (from Aymara "suma qamaña"), both inherited from South American indigenous cosmovisions, are now included in the constitutions of Ecuador and Bolivia respectively. These constitutions were both adopted at the end of the first decade of the twenty-first century.

      These concepts, which are close to the idea of sustainable development, are distinguished from it by the fact that they do not follow an anthropocentric approach. As an integral part of the constitutions mentioned, they are intended to irrigate all Ecuadorian and Bolivian laws and regulations. This has a direct and substantial impact on the conception of the environment.

      It is also worth mentioning how some countries in Latin America, but also elsewhere, have adopted measures that have the effect of recognizing a special legal status for nature. Generally speaking, there is talk of granting nature a legal personality. This has been seen more recently, in relation to rulings by judges (see for example: the "Río Atrato" in Colombia, in 2017; the "Río Vilcabamba", in Ecuador, in 2011), as well as through laws (see for example the Bolivian framework law, related to Mother Earth -Ley Marco de la Madre Tierra- of 2011).

      These are indeed innovative approaches to Law, but paradoxically inspired by traditional indigenous cultures. It is about the recognition of rights to what was previously conceived as things, goods. This procedure is articulated around a legal fiction, similar to the one used to grant, for example, legal personality to legal persons. But, one could ask: what potential could this mechanism have for the protection of rivers?

      b. The legal personality of rivers, a mechanism for protecting the hydrographic basin

      The legal innovations described are fairly recent and, as a result, the real magnitude of their effects is still difficult to determine. Nevertheless, important legal consequences on the protection of the environment could emerge. As far as rivers are concerned, it is conceivable that new forms of organization of the territory could develop, having as a starting point their hydrographic basins.

      Indeed, rivers and their basins could be held as legal persons. Then, it will be necessary to take into account the rights of these new legal persons. Thus, the so-called environmental "externalities", largely neglected, should be taken into account, in the form of legal obligations towards rivers. The rivers could thus become a kind of “creditors” of the users of the waters resulting from the basin.

      But, beyond the subjective rights known as "patrimonial", the legal personality granted to the rivers should also include a set of non-patrimonial rights. In particular, those allowing to identify the river. It is obvious that the rivers already have names allowing their identification: for example, the St. Lawrence River in Canada. However, it is not only the geographical or cartographic considerations of the identification of rivers that interest us here; it is the legal effects.

      In this context, the waters and other goods and services rendered by the river to the community, to society, could necessarily be the object of a recognition of origin. In such a context, the identification of the origin of these goods and services, originating in the specific river basin, will give them a character of belonging, of territoriality. These goods and services, provided by a specific river, will no longer be "simply" exchangeable goods or services. They will show a territorial belonging and, by this way, a particular management set up in a local environment.

      This could well concern foodstuffs or products of another nature.  But it should be noted that this mechanism does not necessarily oppose international trade, just as food sovereignty does not do so either. In the case of rivers, it serves as a claim to the efforts made by a specific community to preserve its environment.

      Another consideration is the potential of this mechanism for strengthening the coordinated management of transboundary basins. From the recognition of the origin of goods and services from the basin, a space of socio-economic organization that goes beyond the divisions imposed by the borders, could well develop. This is to the extent that the commitment to responsible management of the basin is emphasized.

      The idea described in the previous paragraph is also valid with regard to territorial management involving the coordination of several territorial authorities. This mechanism can give visibility to a territorial management based on the notion of the hydrographic basin, which is implied in the idea of the claim of the legal personality of rivers. And it can contribute, by the way of the respect of the subjective rights (this time patrimonial) of the river (or of the Nature), to the modernization of the territorial planning made by the public authorities and the territorial communities.

      Conclusion

      This work brings to light links that, given current developments, are not very obvious, between the notion of food sovereignty and the granting of legal personality to rivers. Both have the potential to become approaches aimed at enhancing the origin of products and services. Such enhancement may well contribute to local development and responsible management of rivers and their basins.

      In different contexts, these approaches are motivated by the claims of cultures and agricultures left aside by the dominant socio-economic development models, such as those inherited from colonial periods or, more recently, those resulting from economic globalization. The weaknesses of these dominant models are now very evident, especially when the world's peoples need to reduce vulnerability caused by environmental disruption, food insecurity, and globalized health crises, such as the Covid-19 pandemic. Strengthening the "rootedness" approach, which guarantees a real belonging to local societies, has the effect of increasing the resilience of these societies.

      Law is called upon to become a more innovative discipline and to provide tools for social improvements. The alternatives and possibilities mentioned in this work are part of this hope. It seems to us therefore very relevant to continue in this direction.—

    • English version below

      Buenos días:

      Revisando el documento sometido a consulta, se observa que el Código de Conducta podría dirigirse a varios destinatarios. Entre ellos, se destacan los Estados y las organizaciones internacioanles (incluidas, por ejemplo, la Comisión Mixta FAO/OMS del Codex Alimentarius).

      En ese sentido, pareciera que el Código de Conducta (de naturaleza voluntaria) debe proponer a los Estados la adopción de ciertos instrumentos vinculantes (coercitivos), que apoyen el funcionamiento del mecanismo en su conjunto. Estos instrumentos tendrán una naturaleza jurídica (marco jurídico). En esta línea, comparto con ustedes un artículo de mi autoría (archivo adjunto), publicado en 2015, en el cual hago algunas proposiciones de corte jurídico, que podrían enriquecer la discusión. 

      En la segunda parte del artículo (Los mecanismos para combatir el desperdicio alimentario) se explican con más detalle las siguientes propuestas, pero para facilitar su comprensión se enuncian de seguido:

      a) Creación de una obligación (jurídica) general de reducción del desperdicio alimentario: se trata de una obligación genérica, dirigida a los operadores del sector agroalimentario (sector privado);

      b) Creación de una obligación específica de prevención del riesgo de desperdicio alimentario. Sobre la base de la noción de riesgo de desperdicio alimentario, la cual se edificaría a la imagen de la noción de riesgo sanitrio, se establecería una dinámica de gestión de los riesgos de desperdicio alimentario.  Estos riesgos deberán gestionarse, al mismo tiempo que se gestionan los riesgos sanitarios. Deberán identificarse, entonces, los puntos críticos y establecerse medidas para limitarlos.

      El Codex Alimentarius podría incluir estos riesgos en la getión realizada por medio del HACCP, así como en las propuestas de Buenas Prácticas. Como consecuencia, las medidas de  combate del desperdicio alimentario se incluiría en los procedimientos típicos de gestión de los riesgos (que son procedimientos normales en la elaboración de los alimentos). 

      Las empresas deberán demostrar que han puesto en marcha los respectivos protocolos para prevenir la realización de los riesgo del desperdicio alimentario, y hacerse de las evidencias nesarias (como sucede en los mecanismos de "autocontrol" existentes).

      c) El reconocimiento de que el desperdicio alimentario puede constituir una forma de Abuso de Derecho, en relación con el ejercicio típico del derecho de propiedad que se tiene sobre los alimentos. Este uso abusivo del derecho, que implica el desperdicio de alimentos, constituiría una forma de uso antisocial de tales bienes, que provocaría un daño difuso a la sociedad. Este daño, en función de su magnitud, daría paso a una responsabilidad civil (delictual), que acarrearía la obligación de reparar o indemnizar a la sociedad.

      Como indico arriba, los detalles de estas propuestas jurídicas, se incluyen en el artículo adjunto.

      Deseando que las propuestas contribuyan a la reflexión, se despide,

      Dr. Hugo A. Muñoz Ureña

      Facultad de Derecho, Universidad de Costa Rica, Costa Rica 

      Chaire de recherche en Droit de la Diversité et Securité Alimentaires, Université Laval (Quévec), Canadá

      Good Morning:

      Reviewing the document submitted for consultation, I note that the Code of Conduct could be addressed to several recipients. Among them, States and international organizations stand out (including, for example, the Joint FAO / WHO Codex Alimentarius Commission).

      In that sense, it seems that the Code of Conduct (which is of a voluntary nature) should propose to the States the adoption of certain binding (coercive) instruments that support the functioning of the mechanism as a whole. These instruments could have a legal nature (legal framework). In this context, I share with you an article I authored (attached file), published in 2015, in which I make some legal proposals, which could enrich the discussion.

      In the second part of the article (The mechanisms to combat food waste) the following proposals are explained in more detail, but to facilitate their understanding I introduce them below:

      a) Creation of a general (legal) obligation to reduce food waste: this is a generic obligation, aimed at operators in the agri-food sector (private sector);

      b) Creation of a specific obligation to prevent the risk of food waste. On the basis of the notion of risk of food waste, which would be built following the model of the notion of sanitary risk, a mechanism for the management of food waste risks would be established. These risks must be managed at the same time as health risks. The critical points must then be identified and measures to limit them established.

      The Codex Alimentarius could include these risks in the management made with HACCP, as well as in the proposals of Good Practices. Consequently, measures to combat food waste would be included in typical risk management procedures (which are normal procedures in food processing).

      Companies must demonstrate that they have implemented the respective protocols to prevent the realization of the risks of food waste, and provide the necessary evidence (as it happens in the existing "self-control" mechanisms).

      c) The recognition that food waste can constitute a form of Abuse of Law, in relation to the typical exercise of the right of ownership over food. This abusive use of the law, which implies the waste of food, would constitute a form of antisocial use of such goods, which could cause diffuse damage to society. This damage, depending on its magnitude, would give way to a civil (criminal) liability, which would entail the obligation to repair or indemnify society.

      As indicated above, the details of these legal proposals are included in the attached article.

      I wish that the proposals will contribute to the reflection.

      All the best

      Dr. Hugo A. Muñoz Ureña

      Faculty of Law, University of Costa Rica, Costa Rica

      See the attachments: