Rethinking the Right to Food (Part Two) — Michael Fakhri

[This is the second in a set of two posts on the right to food by Michael Fakhri. The first post is available here.]

Many studies of food sovereignty rely significantly upon work done on food regimes by Harriett Friedmann and Philip McMichael. A food regime is the set of explicit and implicit rules governing the production and consumption of food on a world scale. [1] Determining what these rules are is part of the hard work of food regime (or “food regime complex” [2]) studies, since implicit rules, or rationalities, play a significant part in constituting the regime. These implicit rules arise as part of the web of practices and interactions among different people in response to questions of food production and distribution; how all these groups interact creates a certain, “stable pattern of production and power” that in effect governs food over extended periods of time. [3] The emphasis is on describing the “implicitly shared ideological or discursive aspects” of a stable, operational regime. [4] A common working assumption in food regime theory is that these implicit rules are to a significant degree a product of mechanisms of dominance (whether it be in the form of money, military, food stocks, or something else). The food regime concept examines agrarian relations as key to creating, stabilizing, and maintaining capital accumulation in time and space. But it also considers how  changes of scale in global food relations restructure states and contribute to capital’s continuous reproduction. [5]

International institutions play a prominent role in food regime accounts and the question is framed in terms of how institutions stabilize and give meaning to the “constellation of relationships” that create the regime. [6] A food regime approach, therefore, looks at how institutions configure ideas and interests in a way that defines global patterns of making and sharing food. The focus here is on how and when certain rules stabilize, and how and when (and by whom) the rules dissipate making way for a new regime. Debates within food regime literature are often over how patterns of capital accumulation and food structure are understood and articulated.

What remains under-examined in food regime literature is how legal concepts and doctrines operate in ways that form, stabilize, and transform the food regime as a whole. [7] More specifically, food regime studies often treat international institutions either as epiphenomenon of global power or expressions of a singular rationality. A legal analysis opens up international institutions as sites of struggle within which power and meaning are negotiated and mediated; international institutions can be understood as places that may not always provide a coherent rule as such, but rather a place where actors and networks coalesce around different ideas and interests. [8]

As demonstrated by participant-observers and activist-academics, the food sovereignty movement’s principal legal tool has been the right to food and peasant rights. They have shown us how members of the movement are using human rights to counter international economic law even though they have an ambiguous relationship to rights discourse and mixed feelings about law. In this account, the existing food regime is described as a problem, and scholars study the limits of law’s capacity to transform the regime. [9] But an emerging group of scholars are developing a legal analysis that advances our understanding of the food regime as a whole.

For example, Anne Saab and Anne Chadwick each provide a very convincing account of how international law maintains and reproduces a contradictory food regime that both maintains a particular type of food security and contains within it structures that create hunger and famine. [10] This is a regime dominated by the WTO, which governs through market mechanisms (such as trade and private property). Another feature of the regime is the Intergovernmental Panel on Climate Change (IPCC) and the UN Framework Convention on Climate Change (UNFCCC), which frames food security in terms of maximizing production through any technological means necessary. Chadwick and Tomaso Ferrando add to this account by providing insight into the complexities of how this regime increasingly uses financial and commercial instruments to convert food into units of monetary value. [11]

By centering on international law, it becomes easier to see how different institutions that govern food and agricultural interact, irritate, overlap, and interlock–all despite being driven by different and at times antinomous values and rationalities. Law provides insight into how particular rationalities emerge and change; law also allows us to see how value and meaning is created from the tensions within and in between institutions.

Studying law and food in this way–and here Amy Cohen leads us–is an exercise devoted to understanding how law encodes particular assumptions about the market, the state, law, technology, and socio-cultural relations that structure the food regime. In turn (as we would be reminded by our participant-observer and activist-academic comrades), when the food movements engage with the regime and navigate the existing institutional landscape, they develop a deeper understanding of legal forms and reveal to the rest of us the possibilities and limits of contemporary law. [12]

[1] Harriet Friedmann, “The Political Economy of Food: A Global Crisis” 197 (1993) New Left Review 29, at 30–31.

[2] Matias E. Margulis, “The Regime Complex for Food Security: Implications for the Global Hunger Challenge” 19 (2013) Global Governance 53.

[3] Friedmann, “Political Economy of Food”, 30–31.

[4] Harriet Friedmann, “Discussion: Moving Food Regimes Forward: Reflections on Symposium Essays” 26 (2009) Agriculture and Human Values 335, at 335.

[5] Sébastien Rioux, “Rethinking Food Regime Analysis: An Essay on the Temporal, Spatial and Scalar Dimensions of the First Food Regime” 45 (2018) Journal of Peasant Studies 715, at 717.

[6] Friedmann, “Moving Food Regimes Forward”, 337.

[7] For work in this vein see Michael Fakhri, Sugar and the Making of International Trade Law (Cambridge: Cambridge University Press, 2014); Amy J. Cohen, “The Law and Political Economy of Contemporary Food: Some Reflections on the Local and the Small” 78 (2015) Law and Contemporary Problems 101; Anna Chadwick, “World Hunger, the ‘Global’ Food Crisis and (International) Law” 14 (2017) Manchester Journal of International Economic Law 92; Michael Fakhri, “Globalizations of Law From the Perspective of International Trade Law (and Agricultural Commodities)” 1 (2018) Jindal Law Review 18; Anne Saab, “An International Law Approach to Food Regime Theory” 31 (2018) Leiden Journal of International Law 251. See also Margulis, “Regime Complex”; Jennifer Clapp, “Food Security and Contested Agricultural Trade Norms” 11 (2015) Journal of International Law and International Relations 104.

[8] Fakhri, Sugar; Guy Fiti Sinclair, To Reform the World: International Organizations and the Making of Modern States (Oxford: Oxford University Press, 2017).

[9] For a great example see Nadia Lambek et al. (eds), Rethinking Food Systems: Structural Challenges, New Strategies and the Law (Dordrecht: Springer, 2014).

[10] Chadwick, “World Hunger”; Saab, “Food Regime Theory”.

[11] Anna Chadwick, “Regulating Excessive Speculation: Commodity Derivatives and the Global Food Crisis” 66 (2017) International and Comparative Law Quarterly 625; Tomaso Ferrando, “Financialization of the Transnational Food Chain: From Threat to Leverage Point?” Transnational Legal Theory (forthcoming).

[12] Cohen, “Some Reflections”.

Michael Fakhri is Associate Professor of Law at the University of Oregon.