Volume 20, Issue 1 (Spring 2016)

The five pieces in this Issue were written by the academics and practitioners who presented at the 2015 JILFA Symposium held on March 5 and 6, 2015. The Symposium examined a range of issues affecting the right to food, including human rights considerations, indigenous rights entitlements, international and transnational investment regime impacts, international economic law concerns, and international environmental impacts. Although these areas are independent from one another, there are many cross-cutting and overlapping considerations that arise between these analytical regimes. This Issue contains a selection of pieces based on these topics. Available at HeinOnline, Westlaw, and LexisNexis.

The Challenges and Developments of the Right to Food in the 21st Century: Reflections of the United Nations Special Rapporteur on the Right to Food, by Hilal Elver. 20 UCLA J. Int’l L. & Foreign Aff. 1.

Dr. Hilal Elver, the keynote speaker at the 2015 Symposium, draws from her experience as the United Nations Special Rapporteur on the Right to Food to reflect on the current state of, and ongoing challenges to, the right to food. She begins by highlighting the importance of a human rights based approach to addressing hunger and food security, and suggests that such an approach increases access to food and productive resources, ensures human dignity, and provides redress mechanisms for claims of rights noncompliance. This Essay documents the development of the right to food, with a particular emphasis on the domestic justiciability of the right. Dr. Elver identifies some remaining challenges affecting the eradication of hunger, including the lack of a coherent global food regulating system, the unsustainability of popular market-oriented solutions that encourage supply- oriented policies, the pervasive use of fossil fuels and chemicals, the increase of foreign investment, and the commodification of food and natural resources. As an alternative to the current food system, Dr. Elver argues for the promotion of local control over food through local food movements. This Essay concludes by offering a series of recommendations, which center on the treatment of the right to food as an indivisible human right.

Ocean Iron Fertilization and Indigenous Peoples’ Right to Food: Leveraging International and Domestic Law Protections to Enhance Access to Salmon in the Pacific Northwest, by Randall S. Abate. 20 UCLA J. Int’l L. & Foreign Aff. 45.

Professor Randall S. Abate considers the new and controversial climate change mitigation strategy of ocean iron fertilization (OIF) within the context of the right to food. Professor Abate seeks to apply OIF within the context of indigenous communities, specifically relying upon the experiences of the Haida indigenous community and the Makah Tribe regarding OIF and aboriginal subsistence exceptions. He addresses whether the Haida in the U.S. Pacific Northwest region would be able to assert a legal right to employ OIF in order to restore and maintain a cultural food source that is threatened by climate change impacts, and ultimately confirms the legal basis for enshrining this right. This Article argues that current OIF regulation is overbroad, and effectively prohibits the practice. Professor Abate recommends, instead, that the balancing of the benefits and risks of OIF shift to indigenous peoples’ right to food versus potential harm to marine environment. As such, this Article proposes an exception to future international environmental law treaty frameworks governing OIF experiments. This exception would protect indigenous communities’ rights to enhanced salmon as a subsistence and cultural food resource that is essential to self-determination through OIF.

Corporate Agricultural Investment and the Right to Food: Addressing Disparate Protections and Promoting Rights-Consistent Outcomes, by Kaitlin Y. Cordes & Anna Bulman. 20 UCLA J. Int’l L. & Foreign Aff. 87.

Kaitlin Y. Cordes and Anna Bulman examine the effect of corporate agricultural investment-in particular, large-scale land-based investment (LSBI)-on the right to food, as well as human rights more generally. They first analyze the impacts that LSBI can have on the right to food. They then assess the protections provided by the current investment and human rights regimes, and conclude that these protections are imbalanced in that they favor corporate investors over individuals. The authors then examine recent developments-including efforts to address the impacts of transnational corporations on human rights and efforts to more fully incorporate human rights considerations into the international investment law regime-that seek to, but have fallen short of, addressing this imbalance. Lastly, the authors argue that additional measures can be taken by governments of both home and host states to prevent right-to-food and other human rights abuses in the context of LSLBI. They suggest that host states (recipients of the investment) should take steps towards improving their position in relation to international investment agreements, strengthening domestic laws, and ensuring rights protections in land investment contracts. Home states, on the other hand, should seek to influence outward investment in LSLBI by assessing and adapting domestic policies, conditioning support to outward investors, and implementing disclosure requirements.

Right to Food, National Security and Trade: Resolving Regime Conflicts, by Marsha A. Echols. 20 UCLA J. Int’l L. & Foreign Aff. 163.

Professor Marsha A. Echols explores the interactions and conflicts between the human rights regime (specifically the right-to-food regime) and the international economic law regime. She explains how the World Trade Organization’s economics-based rules about national security and food security have confined states’ ability to meet their responsibility of providing adequate and accessible food. In particular, states have consented to limit their policy options in accordance with the implementation of trade rules found in General Agreement on Tariffs and Trade 1947 (GATT 1947), the Agreement on Agriculture (AoA), and the General Agreement on Tariffs and Trade 1994 (GATT 1994). This has resulted in the human rights regime being overtaken by the international economic law regime. Professor Echols argues that we should re-think the balance between the right to food and economic trade rules. She provides three models for resolving the imbalance: the TRIPS and Medicines Decision, the Kimberley Process waiver, and a new WTO-UN interpretation of Article XXI(c) of the GATT 1994. These models aim to allow states to fulfill their obligation to provide adequate food without contravening their WTO commitments.

The Environmental Justice Implications of Biofuels, by Carmen G. Gonzalez. 20 UCLA J. Int’l L. & Foreign Aff. 229.

Professor Carmen G. Gonzalez analyzes the viability of biofuels through an environmental justice lens, which includes climate justice and food justice considerations. This Article contemplates the impact of biofuels on the global food system and on the planet’s most food-insecure populations. Ultimately, this Article concludes that promoting the cultivation of biofuels, including the biofuel policies of the United States and European Union, contributes to global malnourishment by raising food prices and by accelerating the large-scale acquisition of arable lands in poor countries, where such lands are relied upon by local communities to grow food. According to Professor Gonzalez, the use of biofuels threatens to intensify the harmful effects of climate change, and may exacerbate harms to local ecosystems noting that the industrial model of agricultural production results in greater food insecurity. Finally, this Article offers alternative governance strategies aimed at fostering more equitable and sustainable approaches to bioenergy that promote the human right to food.

Available at HeinOnline, Westlaw, and LexisNexis.

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